211 Mo. 591 | Mo. | 1908
— This is an original action by mandamus, the general purpose of which is to require the city of St. Louis, the Board of Public Improvements of said city and the City Comptroller, to cancel certain tax bills which were issued to relator in payment of work done and material furnished in the reconstruction of a portion of Lee avenue in said city. The alternative writ was issued and return duly made, and the questions involved are ones which appear from these pleadings.
From the alternative writ it appears that the relator was the contractor for reconstructing a portion of Lee avenue in the city of St. Louis. That an ordinance authorizing said improvement had been duly passed, which ordinance is fully set out in the writ, but it is not necessary to set it out here, as the validity thereof is unquestioned. That relator had done the work and tax bills to pay therefor had been issued, but relator avers, that the taxing district was not properly laid out and defined, and that thereby such tax bills are void, and he desires the cancellation thereof, and the reissuanoe of the same after a properly defined district has been made. The charges as to the illegality of. the taxing district are couched in this language:
“That the assessment district for said work, upon which said special tax bills were issued, was not estab
“That the total cost of said improvement of Lee avenne under the said ordinance amounted to $35,-026.19, of which one-fourth, to-wit, $8,756.57, has been assessed and made chargeable against the property fronting on the improvement on Lee avenue and three-fourths of said amount, to-wit, $26,269.62, has been assessed and made chargeable against the area of a district erroneously established by the said city and which district, so erroneously established, contains an area of 1,267,936 square feet. That the said assessment district (upon which said special tax bills were issued) was not established in accordance with the provisions of the charter of the said city of St. Louis in this:
‘ ‘ 1. The property of the north side of said Lee avenue, throughout the length of said improvement, is situated in the McCune and Yandeventer addition to St. Louis, a plat of which subdivision was duly and legally certified and filed in the office of the Recorder of Deeds of the city of St; Louis on the 4th day of June, 1867, and is recorded in the office of the said Recorder of Deeds in plat book No. 7 at page 61. That in said recorded plat of said subdivision, the street bounding the subdivision on the south is designated as ‘Moore’ street. That subsequently by an ordinance of the said city of St. Louis, duly enacted and approved, the name of said street was changed to Lee avenue and is the street improved as, aforesaid. That the names of the streets designated in said plat as ‘Bryan,’ ‘O’Fallon’ and ‘Carolina’ avenues have since, by duly enacted and approved ordinances of the city of St. Louis,, been changed to ‘Prairie,’ ‘Warne’ and ‘Fair’ avenues, respectively. That block number one of said subdivision is also known as City Block number 2488, block number two as City Block number 3305, block number three as City blocks numbered 3577 and 3578, block
“2. On the south side of Lee avenue, the street improved, City blocks 1928, 1929 and 3304 are located in Hull’s subdivision, a plat of which subdivision was properly certified and duly filed in the office of Recorder of Deeds of the city of St. Louis in plat book four, page seventy. That in block 1927, lots 38, 39, 40’ and 41 and in block 3304, lots 27, 28, 29 and 30 as platted, have a depth of 272 feet and 7-8 inches from Lee avenue to an alley running east and west in said blocks. That the next parallel street south of Lee avenue is Kossuth avenue, and the midway line between Lee avenue and
“3. Lot five, in block 3576 and in the McCune and Yandeventer subdivision, has been assessed only to the midway line. The said lot is improved by a dwelling on Lee avenue, but has no dwelling or outbuilding of any kind on Penrose street. The outbuildings and fence used in connection with the said building fronting on Lee avenue are located at about the middle of the depth of said lot, and that only so much of said lot as lies between said Lee avenue and said midway line is used as the lot for said building.
“Petitioner further states that it is the intention and meaning of the provisions of said charter of the city of St. Louis to have the district line fixed midway between the street improved and the next parallel or converging street, if there be such parallel or converging street; and that it is not the intention or meaning of the provisions of said charter that lots fronting upon the street improved, and which have a depth extending to the next parallel or converging street, shall be assessed their entire depth, but that by the provisions of
“Petitioner further states that the said district has been erroneously defined in that the lots in blocks 1929 and 3304 hereinbefore particularly mentioned, have not been assessed their entire depth, although said lots extend beyond the midway line, do not extend to the next parallel street and are lots shown by a recorded plat of Hull’s subdivision.”
Appertaining to these allegations, the return made says:
“Respondents further admit the original subdivision and platting of the property as alleged in said writ, and also admit the change of names of the streets as stated in said writ, and also admit that the block numbers of said Me Cune and Vandeventer addition to St. Louis became the respective City Block numbers as stated in said writ.
“Respondents admit and allege that prior to any proceedings being taken for the improvement of Lee avenue Penrose street, the next street north of Lee avenue, was duly - established and opened as a public street of the city.
< t respondents further admit the numbering of lots in said City blocks as stated in the alternative writ, and also admit the relative situation of said lots as originally platted with respect to Lee avenue and Pen-rose street as stated in said writ and shown on Plat B filed therewith. Respondents allege that subsequent to the platting of said land and prior to any proceedings being taken for the improvement of Lee avenue some of said lots were subdivided, in the manner hereinafter stated, thus making two or more lots out of what was originally one platted lot, and that special tax bills were issued in payment of the improvement of Lee avenue as aforesaid, against each of the lots fronting upon said Lee avenue to the entire depth of such lots in the proportion required by the charter provisions of the city of St. Louis, namely, one-fourth of the cost of the improvement being assessed upon all lots fronting upon Lee avenue in proportion to the frontage and three-fourths of the cost of said improvement being assessed in proportion to the area on all lots lying between said
“Respondents further state that where said original lots were subdivided by the owners thereof, making more than one lot out of such original lots respectively, the city in issuing said special tax bills recognized said subdivision by such owners and recognized the creation by such owners of new lots and such new lots being taxed as lots. That in a number of instances, as shown by the plat filed with the petition in this cause, the ownership of the lots as originally platted was divided, one proprietor owning one-half of the original lot running through from Lee avenue to Penrose street, or owning one-half of such original lots, such one-half running back to the midway line between Penrose street and Lee avenue, and in some cases said lots were divided in' ownership by more minute subdivisions. In some cases as shown by said plat while the same person owns the entire lot he had divided the same by his improvements and fences thereon, in which case where such lots fronted Lee avenue they are included in the assessment to the midway line, because all of that portion of the original lot was by such use segregated from the balance of the lot and used as a part of the premises of said fronting, while the one-half of lot beyond the midway line and fronting on Penrose street was thus disconnected from the one-half fronting on Lee avenue, and in making the assessment the city merely recognized the establishment of new lots by the proprietors and in all cases followed the lots as platted in making the assessment unless the owners had subdivided original lots and made more than one lot in fact out of the original platted lot.
“Respondents admit that in locating the taxing district line as described in the charter, the city through its proper official, placed the same in accordance with
“Respondents further admit that lot 5' in City Block 3576 was assessed only to the midway line between Lee avenue and Penrose street, the facts being that the west half of said lot 5 is and was owned by one Russell, who had and has a house thereon fronting Lee avenue, using the lot half back to Penrose street as a part of his dwelling house premises, which dwelling house premises are separated from the Penrose end of said lot by a fence placed at the midway line. The east half of said lot 5 is divided in ownership, the portion fronting on Lee avenue is owned by one Herwig who has a dwelling house fronting Lee avenue. The premises used in connection with which runs back to a fence which is placed upon a line midway between Lee avenue and Penrose street, and the portion of said east half of said lot fronting on Penrose street is owned by one Metz, who has a dwelling house fronting Penrose street, and whose dwelling house premises extend from Pen-rose street back to the midway line between Lee avenue and Penrose street. Said lot 5 being thus divided by its owners and proprietors, was assessed in accordance with said division, the city recognizing as separate lots
As to all the other allegations the return specifically admits the allegations of the alternative writ.
As said, in the record before us we have only the alternative writ and the return. Under such eircumstanees the case was submitted on briefs, which seem to fully recognize the facts alleged in the return. At any rate there being no denial of the averments made in the return the allegations therein must be taken as true for the purposes of this case.
Such are the facts for our consideration.
The relator makes a fair summary of his contentions in this language:
“ (1) The taxing district as established is not in acordance with the charter, because some of the lots, in a platted subdivision which front the improvement have been assessed only to the midway line, and others their full depth to the next parallel street.
“ (2) That the proper interpretation of the charter of the city of St. Louis requires the placing of the district boundary at a line midway between the improved street and the next parallel or converging street, where the platted lots fronting the improvement extend through to such parallel or converging street.
“ (3) If, however, the exception in the charter, that a lot fronting the improvement shall be assessed its full depth, applies in snch a case, then all of the platted lots should be so assessed, irrespective of the use that is being made of them.
“ (é) That if the charter should be construed as permitting some of these lots to' be assessed only half way, and others, in the same subdivision and bearing exactly the same relation to the improvement, to be assessed their full depth, it would be unconstitutional.”
I. Of these contentions we take the last first. It might suffice to say that the constitutional question thus
With this the constitutional question will be dismissed. The constitutionality of this charter provision has received due consideration by this court, and if there be a serious Federal question, our action is subject to the proper review.
II. The remedy here sought, that of cancelling the tax bills upon a district improperly defined, and issuing new ones upon one properly defined, has been fully recognized by this court. [State ex rel. Paving Co. v. St. Louis, 183 Mo. 230.]
The first question for determination is whether or not, where a street is being improved, lots fronting on such street and running through to the next parallel street, should be included in full or only to the midway line. It will be observed that a number of the lots as originally platted run through from Lee avenue to Pen-rose street. It will also be observed that since the original platting of the lots, some of them have been divided by deed, so that the half fronting upon Lee avenue is owned and used by one party and the half fronting upon Penrose street is owned and used by another party. In some instances the same owner has the entire lot, but by use has divided it at the midway line and has improved and is using the two halves separately. But first, where the lot as platted is owned by one party and all used together, with the chief improvements in Lee avenue, how should the district line be drawn as to such lot? Should the district line include the whole lot, or should it stop with the midway line ? If the former, of course this would carry the district line to the next parallel street, whenever we had a lot of this character. In
The charter provision reads: “A line shall he drawn midway between the street to be improved and the next parallel or converging street on either side of the street to he improved, which line shall he the boundary of the district, except as hereinafter provided, viz.: 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, and the average distance from the midway line so drawn to the nearest boundary line of the lot is less than 25 feet, the district line shall in such case diverge to and follow the said nearer boundary line. ’ ’
Prom this it will he observed that the general plan of establishing a district is to establish a midway line between the street to he improved and the next parallel or converging street. This general plan appears from the first clause, hut to this plan there are certain exceptions. The exception covering this point is fully set out, and is to the effect that the whole of a lot which fronts on the street to he improved, must he taken into the district, though the district line would thereby he changed from the midway line first mentioned. Relator would have us write into the charter an exception which is not there, i. e., in the event that the lots extended through to' the next parallel street, then only half of the lot should he included. This we do not feel should he done. Had the people adopting the charter desired the additional exception, it would have been made. Nor is it unreasonable, as might he urged, that in the event the other abutting street is improved the lot would he again assessed. Benefits are at the foundation of assessments of this character and a lot abutting two improved streets has its advantage over one adjoining hut
III. The further contention is that inasmuch as in the formation of this particular taxing district, some of these lots running through from the street being improved to the next parallel street, were included in full, then all such lots, as originally platted, should have been so included, and for that reason the district has not been properly established. It will be observed from the return it stands admitted that in some instances the original owners of lots extending through from street to street, had sold parts thereof, and in such case in forming the district these parts were recognized as lots, and treated as independent lots. In this way if the original lot had been divided by sale and deed at the midway line, then only the half fronting on Lee avenue was taken, and the portion fronting on Penrose was left out. Relator contends that the word “lot” as used in the charter means a platted lot, and, therefore, either the half or the whole of all such lots should be taken. Relator’s contention is based on the following charter provision:
“The word ‘lot,’ as used in this section, shall be held to mean the lot as shown by recorded plats of additions or subdivisions, but if there be no such recorded plat, or if the owners of property have disregarded the lines of lots ais 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.”
From this charter provision which undertakes to define the word “lot,” it by no means follows that a platted lot is always meant, but the latter clause ex
From this it follows that the peremptory writ should be denied, and it is so ordered.