102 Mo. App. 649 | Mo. Ct. App. | 1903
This, an action upon a special tax-bill, originated before a justice of the peace of the city of St. Louis, and on appeal a non-jury trial was had upon the following agreed statement:
“It is agreed that this case may be submitted upon the following statement of facts, to-wit:
“Section 568. Sidewalks, Constructed at Expense of Owner, When. — Whenever the Municipal Assembly shall direct, by ordinance, the improvement of a public street or avenue, the Board of Public Improvements may, upon the application of the owner of any property fronting or bordering such improvement, grant permission to such owner to construct the sidewalk in front of said property, but without such permission no sidewalk
Section 1372. Contracts for Grading cmd Repairing, to be made annually. — The Board of Public Improvements shall, in every year, enter into contract for one year, beginning on the first of July, for the grading, constructing, reconstructing and repairing of sidewalks, and for the repairing of street and alley and gutter paving, and such other similar work as may be ordered by ordinance, or which may become necessary to be done during the year.” Revised Ordinance, 1892.
‘ ‘ That said Board of Public Improvements entered into contracts with G-. Eyermann, Jr., which contract was numbered 4282, and duly executed for the work mentioned in the preceding section, and for the particular year during which the work mentioned in the special taxbill hereinafter, set forth was constructed.
‘ ‘ Ordinance 18864, approved March 25,1897, which ordinance is hereto attached and made a part of this statement.
“Permit No. 13660, dated April 1, 1897, issued by Board of Public Improvements to Thomas Ward Mc-Manus, a copy of which permit is hereto attached and made a part of this statement.
“Permit No. 13660 (Copy) St. Louis, Apl. 1, 1897.
“Permission is hereby granted Thomas Ward Mc-Manus to pave sidewalk with granitoid in front of his property on E. S. of Sarah str. from Pine str. to Laclede ave. abt. 500 ft x 6 ft. To be completed on or before May 1, 1897. Said work must be done in accordance with the specifications of the street department; and the street commissioner must be notified when the work is to be commenced, (per application of Api. 1, 1897).
11 Said work must be done under the supervision and control of the Street Commissioner and to his satisfaction.
‘ ‘ Robt. McMath, President. ’ ’
“That Thomas Ward McManus under the authority of permit No. 13660 constructed the entire sidewalk on Laclede avenue and Pine street, fronting the property of said Camilla S. McManus, and that said sidewalk as constructed included the intersections which were part of said sidewalk in front of said McManus property, and that said work as done was accepted by the city of St. Louis.
“That afterwards and in pursuance of the authority conferred by the charter and ordinances of said city and said contract No. 4282, the contractor named in said contract constructed all of the intersections on Sarah street between Laclede avenue and Olive street, with the exception of the following, viz.:
“The intersections which constituted a part of the sidewalk constructed by Thomas Ward McManus in front of the property of defendant Camilla S. McManus; the intersections made by certain other property-owners under the same circumstances as McManus; and the intersections which had been previously made as a part of the sidewalk of streets crossing said Sarah street between Laclede avenue and Olive street.
“That afterwards the special taxbill involved in this suit, being Exhibit ‘A’ to plaintiff’s petition, and which taxbill is made part of this statement, was issued to the contractor named in said contract No. 4282, for the cost of said intersections made by him, and by said contractor was assigned to'Heman Construction Company. That demand for the payment of’ said special taxbill was made upon Thomas Ward McManus on July the 7, 1897, and that no part of said special taxbill has been paid, and that Camilla S. McManus was the owner of property fronting on east side of Sarah street between Laclede avenue and Pine street, but said demand may be considered as good as if made upon her.
‘ ‘ That the copy of final measurement, diagram and
“1. The parts shown in pale blue represent sidewalks laid by contractor and assessed against the property abutting same.
“2. The parts shown in red represent intersections made for the purpose of connecting detached parts of sidewalk in the district on Sarah street between Laclede avenue and Olive street, the total cost of which intersections was prorated and assessed against all the property fronting on Sarah street in said district, according to the front foot. The validity of such assessment against the McManus property being the question involved in this case.
“3. That at the time the sidewalks and intersections shown in diagram were laid, all other sidewalks and intersections on Sarah street and the streets running east and west where the same cross Sarah street, had been laid but are not shown in diagram.
“4. The parts marked ‘previously done’ and appearing at a point representing Lindell boulevard where it intersects Sarah street on the east, were not laid under the contract in this case, but are shown for the purpose of illustrating the purpose of intersections.”
Ordinance No. 18864, approved March 25,1897, was made up of three sections; the first authorized the Board of Public Improvements to cause the sidewalks on Sarah street, between Laclede avenue and Olive street, to be constructed of granitoid, excepting such parts as were already paved; section 2 provided for the material of which the sidewalks should be made, and the last section directed that the cost should be charged as a lien upon the adjoining property fronting or bordering on the improvements provided for, and paid by the owners, and the method of ascertaining the proportionate amount
, ‘ ‘ When said work is completed, the president of the Board of Public Improvements shall compute the cost thereof, and levy and assess the same as a special taxbill against each lot of ground abutting thereon and chargeable therewith in the names of the owners thereof, respectively, in the proportion that the linear feet of each lot fronting or bordering on said improvement bears .to the total number of linear feet of all the property chargeable with the special tax aforesaid, and shall make out and certify to the comptroller, on behalf of the contractor, bills of such cost and assessment accordingly as required by law; provided, however, that in cases where owners of abutting property have constructed such sidewalk at their own expense and the same is not reconstructed by the city hereunder, the linear feet of such property shall be excluded from the total linear feet in making such calculation and assessment for such abutting sidewalk, and as to them no assessment or charge shall be made, except for the prorata cost of intersections authorized by this ordinance.”
The improvement district was in a residence neighborhood, and the sidewalks extending in every direction were but six feet wide with spaces of three feet at each side, one isuch space adjacent to the building line and one abutting on the street next to the curb; hence at the various street comers where sidewalks had been constructed only in front of each comer lot, an unimproved space or intersection remained directly opposite each front, and beyond the boundary line of the adjoining lot.
From the conceded facts, it thus appears that ordinance numbered 18864 provided for construction of granitoid sidewalks on Sarah street between Laclede avenue and Olive street; that prior to the passage of this ordinance the Board of Public Improvements, under authority of section 568 of the Revised Ordinances of the