259 Mo. 153 | Mo. | 1914
This is a suit upon a special tax bill in the sum of $14,522.65 and interest, issued by the city of St. Louis to the plaintiff contractor and against the property of defendants, as in part payment for the improvement of that portion of Broadway street lying between a line about 285 feet south of Pelham avenue and Hornsby avenue in said city. Trial was
“A line shall be drawn midway between the street to he improved and the next parallel or converging street on each- side of the street to he improved, which line shall he the boundary of the district, except as hereinafter provided, namely: If the property adjoining the street to he improved is divided into lots, the district line shall he so drawn as to include the entire depth of all lots fronting on the street to he improved. If the line drawn midway as above described would divide any lot lengthwise or approximately lengthwise, and the average distance from the midway line so drawn to the nearer boundary line of the lot is less than twenty-five feet, the district line shall in such case diverge to and follow the said nearer boundary line. If there is no.parallel or converging street on either side of the street to he improved, the district lines shall he drawn three hundred feet from and parallel to the street to he improved; but if there he a parallel or converging street on one side of the street to he improved to fix and locate the district line, then the district line on the other side shall he drawn parallel to the street to he improved and at the average distance of the opposite district line so fixed and located. Provided that if any property in a district established as herein provided is not liable to special assessment, the city shall pay the proportion of cost of the improvement which would have been assessed against such property. All of the property in*160 the lots, blocks or tracts of land lying between the streets to be improved and the district lines established as above specified, shall constitute the district aforesaid. . . . The word 'lot’ as used in this section, shall' be held to mean the lots as shown by recorded plats of additions or sub-divisions, but if there be no such recorded plat, or if the owners of property have disregarded the lines of lots as platted, and have treated two or more lots or fractions thereof as one lot, then the whole parcel of ground, or lots so treated as one, shall be regarded as a lot for the purposes hereof. ’ ’
Charter of the City of St. Louis, art. 6, sec. 14.
The property involved in the present tax bill is upon the west side of the improved street, having a frontage thereon of 1083.88 feet and extending westward to a depth varying from 327 feet to approximately 493 feet. The nearest public street west of the improved street, and also west of the land involved in this tax bill, is Church road, which is approximately 986 feet west of Broadway at this place.
Appellants make no claim that the work of said improvement was not properly done as provided by the contract and specifications, but seek to defeat • a recovery by reason of certain alleged irregularities in the fixing of the boundaries of the benefit district; in the issuance of the tax bill and the giving notice of its issuance. The different defenses pleaded may be briefly stated as follows:
1. That the assessment district fixed by said city was illegal and improper and not in conformity with the provisions of the city charter in this:
(a) A portion of the western boundary of said benefit district was placed half-way between Broadway and Church road whereas Church road was not a parallel or converging street to Broadway within the meaning of said charter. That in time this property will be intersected with other streets parallel and nearer
(b) That the eastern boundary of the district should have been extended so as to have taken in the entire depth of lots “H” and “I” of the subdivisions of Cimblin’s estate fronting upon the east side of the improved street, because the same are lots within the meaning of the charter. (Note: This would have enlarged the benefit district and decreased the amount of defendant’s tax.)
(c) At the time of the passage of the ordinance authorizing the improvement, a street then known as Hornsby avenue ran about 150 feet parallel with the northern end of the improved street. That before the improvement was finished this short parallel street was vacated and another parallel street about 155 feet farther west was opened by extending Church road northward and that the western boundary line of the district at this place was fixed half way between Broad
2. That the ordinance providing for the improvement and the issuance of special tax bills in payment therefor was in part as follows:
“The total cost of the foregoing work and all proper connections and intersections required (except so much thereof as the railway company having tracks on said street is by law obligated to pay, and except, further, so much thereof as is provided to be paid by the city of St. Louis by section 5 of this ordinance) shall be ascertained and be levied and assessed as a special tax upon all the property within a district defined and bounded by section 14 of article 6 of the charter of the city of St. Louis.
“Section 5. Whereas,in the district aforesaid there is located St. Louis water works property' of the city of St. Louis which is not liable to special assessment, and, whereas, the proportion of cost of the aforesaid improvement which would have been assessed against said property of the city were it not exempt from the assessment, amounts to $17,168. There is hereby appropriated and set apart out of real estate account for city’s proportion of cost against property of the city for reconstructing and improving streets, alleys or sidewalks said sum of $17,168 to. pay for the city proportion of said cost.”
That the amount finally paid by the city on property included in the district exempt from special assessment was $7947.78, instead of $17,168, the amount appropriated, and that by reason thereof the remainder of the property in the assessment district had to pay approximately $10,000 more in special tax than contemplated and provided by said ordinance and that by rea
3. That the contract which plaintiff entered into with the city for the performance of said work pursuant to the terms of said ordinance provided that the “property in the benefit district exclusive of the property belonging to the city, should only be charged with the difference between the total cost of said improvement,” to-wit, $42,291.52 and the sum to be paid by the city authorities, to-wit, $17,168', but that the city authorities • failed to deduct said sum of $17,168, before assessing the assessible property in said district, and that by reason of said ordinance and contract plaintiff is estopped to claim that special tax bills could be issued by the city for more than the sum of $42,291.52 less said $17,168, and that by reason of such error the said tax bill is illegal and void.
4. That said tax bill is void because it did not describe with sufficient certainty the property against which it purported to be issued; and thát said tax bill was never amended in any manner provided by law.
5. That no notice of the issuance of any special tax bill against the property referred to in the amended petition was ever given to defendants.
There is little, if any, dispute as to the controlling facts. Such additional facts as shall become necessary to an understanding of the legal questions involved will be stated in connection with the discussion of the respective points.
The undisputed facts show that Church road, which is approximately 900 feet distant, is the nearest parallel street to that portion of the improved street upon which the land involved in the present tax bill fronts.
The point here raised has been fully discussed and directly passed upon by this court in a number of decisions. No present reason appears why the subject should again be discussed at length, but for the purpose of the present case, it is sufficient to say that the rule has become firmly established by former opinions of this court to the effect that the charter of St. Louis does provide for the fixing of the boundary line of the benefit district as the same was fixed at the place above mentioned in the case at bar, and that such charter provision does not conflict with any of the above-mentioned constitutional provisions. [Granite Bituminous Paving Co. v. Fleming, 251 Mo. 210; Gilsonite Co. v. St. Louis Fair Assn., 231 Mo. 589; Fruin-Bambrick Construction Co. v. St. Louis Shovel Co., 211 Mo. 524.]
The purpose of the ordinance in the respect here discussed was to make an appropriation out of which the city’s proportionate part could be paid. The fact that the ordinance appropriated $17,168 with which to pay its proportion could in no manner obligate the city to pay that amount unless the city’s legal share in fact equalled that amount. When the work was com
It is further insisted by appellants, however, that-the ordinance in appropriating a certain amount with which to pay the city’s portion thereby limited the amount for which special tax bills could be issued against private property in the district to the difference between the total costs and the amount so appropriated. We are unable to agree with this construction of the ordinance. Section 4 of the ordinance in providing for the issuing of special tax bills to pay for the total cost of the improvement (less the amount to be paid by the street railway company and the amount to be paid by the city by section 5 of the ordinance) expressly states that the benefit district contemplated by the ordinance is the district as fixed by
Pursuant to the above provision for giving notice, and in due time, the contractor caused to be served upon the defendant named in the tax bill the following notice:
*170 “SPECIAL TAX BILL NOTICE.
“Cast Realty & Investment Co. — Owner.
“You are hereby notified that special tax bill No. 17961 for $14,522.65', date Feb. 8,1909', has been issued to Schneider Granite Co., Contractors, under ordinance No. 23137, contract No. 8105, for work done on Broadway between a line about 285 feet south of Pelham avenue and Hornsby avenue, and chargeable against property described in said special tax bill as follows:
“Lot No. — in city block No. Yol. 1, pa. 64, said ground having an aggregate front of 1085.71 feet, by 327.18 1083.88 a depth of 418.92 feet, bounded north by Hornsby avenue, east by Broadway, south by alley et al. and west by Luedinghaus, Jr., et al.
“This bill is payable as provided by Section 25, Article YI, of the City Charter, and the Lafayette Bank, Broadway and Merchant St., has been designated as the place of payment thereof, where payment of the bill in full may be made without interest within thirty days after service of this notice; otherwise, in accordance with said section and article.
“Payment thereof is now demanded.
“Schneider Granite Co., Contractors.
“ByB.”
It is contended that the above notice is insufficient by reason of the fact that the property is not correctly, and completely described. It is true that the property is not fully described. However, the purpose of the notice is to inform the person named in the tax bill of the “issuance thereof,” so that he may pay the same without interest at any time within thirty days after receiving said notice. The description given says the property is bounded on the north by Hornsby avenue and on the east by Broadway. The same could not be said of any other piece of property in the city.
It is well settled in this State that irregularities occurring in the issuance of tax bills may be corrected by amendments thereto made by the same persons who originally issued the same. [Morley v. Weakley, 86 Mo. 451; Stadler v. Roth, 50 Mo. 400; Vieths v. The Planet Property & Financial Company, 64 Mo. App. 207.] Said amendment was not only permissible under the authorities but it was a very proper and necessary step for the purposes of the tax lien and the regularity of a possible sale of the land under a judgment rendered thereon.
The judgment is affirmed.
PER CURIAM. — The foregoing opinion of Williams, C., is adopted as the opinion of the court.