24 Mo. App. 102 | Mo. Ct. App. | 1887
delivered the opinion of the court.
This is an action upon a special tax bill for the cost of reconstructing with granite pavement a portion of Plum street in the city of St. Louis. The ordinance (No. 12,426) which authorized the work was passed March 27, 1883. The contract under' which the work was let was executed April 17, 1884. The special tax bill, which was issued to the contractor and which is the foundation of this action, is dated. September 17, 1884. The lot of ground against which the tax bill is issued is described therein as “lot number twelve, in city block number one, said ground having an aggregate front of twenty-two and five-tenths feet, by a width of ninety-nine and twenty-nine one-hundredths feet, bounded north by Climer, east by Commercial street, south by Plum street, and west by First street.” It is thus seen that the improvement for which this special assessment is made against the lot, extends along the flank of the
“ Section 4. The cost of the foregoing work, and all proper connections and intersections required, shall be charged as a lien upon the adjoining property fronting or bordering upon the improvement herein jirovided for, and shall be paid by the owners thereof, except as hereinafter provided. 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 tax against each lot of ground 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.
“ Section 5. Whereas, the estimated cost of the foregoing work and all proper connections and intersections, required as provided for by this ordinance to be assessed against some of the lots fronting or bordering on the aforesaid improvements, amounts to more than twenty-five per centum of the assessed value of said lots, therefore, the amount in excess of twenty-five per centum shall be paid by the city of St. Louis ; and the sum of five hundred and thirty-eight dollars is hereby appropriated on account thereof, payable out of the fund set apart for street reconstruction.”
The president of the board of public improvements complied with the above requirements of the ordinance in making this assessment. The tax bill shows on its face that the total cost of the work was first ascertained,
I. On the twelfth day of April, 1884, which, it will be perceived, was before the contract under which the work wa,s done was entered into, but after the ordinance authorizing it was passed, the defendant, Rebecca W. Brown, conveyed to her mother, Mrs. Willi, a small portion of the lot in controversy, three feet in width, extending from one end of the lot to the other, on the south side of it along its entire margin, on Plum street. On the fifteenth of March, 1885, Mrs. Willi conveyed this strip of land by warranty deed to Joseph T. Donovan. The consideration paid by Mrs. Willi, and also by Donovan, was two hundred and ten dollars, which was seventy dollars per front foot, a sum less than the assessed value of the property, and considerably less than its market value. The parties to this conveyance and Mr. Willi Brown, son of Rebecca W. Brown, under whose advice it was made, all testified that it was an out and out sale. Mr. Donovan paid the money for it, and swears that he bought it because he thought it was a good investment. It appears that since the sale Mr. Donovan’s proportion of the rent collected from the tenant of what was previously the whole lot has been collected by Mr. Willi Brown and regularly paid over to him. But Mrs. Brown’s avowed object of the conveyance was to defeat the collection of this assessment in
II. The remaining question which is pressed upon our attention is, whether the ordinance, in so far as it undertakes to assess the cost of the improvement against the property, under what is known as the “front foot rule,” to the extent of twenty-five per cent, of its taxable value, the city bearing the remainder' of the charge, is valid, in view of the following provision of the charter of the city: “And the paving, curbing, guttering, sidewalks, and the materials for the road ways, the repairs of all alleys and sidewalks, shall be charged upon the adjoining property as a special tax, and collected and paid as hereinafter provided. Whenever the estimated special taxes to be assessed against any property shall in the aggregate amount to more than twenty-five per cent, of the assessed value of said property, calculating a depth to such property of one hundred and fifty feet, then the assembly shall provide out of the general reve
It may be conceded, however, that the argument ab incormenienti is not an argument which can stand in the way of giving to the words of the charter the interpretation which they plainly require. There is force in the argument that the clause above quoted from the charter, which provides for the making of such assessments against “the adjoining property,” and which speaks of “any property,” instead of providing for making the assessments “on the adjoining lots,” which was the provision of the charter of 1855, intended to change the principle of the assessment; and we confess that we would have great difficulty in coming to any conclusion as to what the unskillful draughtsmen of this particular provision in the present city charter did mean. But in view of the fact that what is known as “the front foot rule” has been the principle upon which similar assessments have been made, not only in St. Louis, but in other cities of this state for many years, and that this principle has been approved by the supreme court in numerous decisions (Farrar v. St. Louis, 80 Mo. 394, and cases cited), we feel clear that, if the authors of the present charter had intended to change this rule, they would have said so in explicit terms. We are of opinion that the above clause of the charter was intended to mean no more than this: that where the estimated cost of the improvement exceeds twenty-five per cent, of the assessed value of the adjoining lot, the city shall pay the excess; provided that, in case of lots more than one hundred and fifty feet in length, measuring back from the line of the improvement, the amount which shall be charged upon the lot shall be twenty-five per cent, of that portion of the assessed value of the lot which the
III. It necessarily follows from the foregoing that the tender made by Mr. Donovan of an amount equal to twenty-five per cent, of the assessed value of the three foot strip was futile. In the first place, there was no evidence that the three foot strip had ever been assessed separately for taxation. If it were so assessed, it might be found to be worth actually more or actually less than its proportion, according to its frontage on First street, of the entire lot of twenty-two and five-tenths feet front.
IV. The only other objection which it seems necessary to consider relates to the form in which the judgment was entered. It contains the recital that the defendants, Rebecca W. Brown and Lucinda Willi, are indebted to the plaintiff in the sum named in the tax bill with interest, and then proceeds to award a special execution against the lot described in the tax bill. We see no error in this recital, so far as Mrs. Willi is concerned. At the time when the tax bill was issued, from which date it became a lien on the property, the three foot strip which had been conveyed to her by Mrs. Brown stood of record in her name, the conveyance by her to Donovan having been subsequently made. Nor do we see that it is necessary for the judgment to contain the recital that Donovan is indebted for any of this
The judgment will be affirmed. It is so ordered.