Granite Bituminous Paving Co. v. McManus

129 S.W. 448, 144 Mo. App. 593, 1910 Mo. App. LEXIS 393

• Court: Missouri Court of Appeals
• Decided: June 6, 1910
• Status: Published

Opinion

NIXON, P. J.

I. It will be seen from the statement of facts that this is an action by the respondent, commenced against Camilla S. McManus, on a certain special taxbill issued by the officers of the city of St. Louis under its charter and ordinances for work done by plaintiff in the reconstruction of Laclede avenue from Grand avenue to Kingshighway boulevard, in which it is claimed that such special taxbill is a lien upon certain lands owned by the defendant fronting on Laclede avenue between Grand avenue and Kingshighway and between Vandeventer avenue and Sarah street. This tract of land is described in the taxbill as follows: “A parcel of realty in block No. 3920 of the city of St. Louis, having an aggregate front of 1366.17 feet by a depth of 223.19 feet; bounded north by the boundary line of the improvement district hereinafter mention, east by Vandeventer avenue, south by Laclede avenue, and west by Sarah street.

The defense set up in the answer was that the assessment for the improvement for which the special taxbill was issued was irregular and void and that the taxbill was not made out in accordance with the provisions of the charter, and that therefore, the plaintiff by offering the taxbill in evidence, did not make out a prima-facie case of liability of the defendant. A further defense was urged that the city charter required that the Board of Public Improvements should define by ordinance the district to be assessed, and that an improvement district not defined by ordinance is void.

The special taxbill upon which the suit was brought is as follows:

“Special Taxbill.

“No. 14,502.

“Office of the President of the Board of Public Improvements.

“St. Louis, Nov. 26, 1904.

“Camilla S. McManus, owner to Granite Bituminous Paving Company (contractor), Ur., for work done on Laclede ave. from Gland ave. to Kingshighway boul., chargeable against lot No. - in city block No. 3920, said ground having an aggregate front of 1366.17 feet, by a depth of 223.19 feet; bounded north by the boundary line of district, east by Yandeventer ave., south by Laclede ave., and west by Sarah street, under authority of the charter and of ordinance No. 21,502, and of contract No. 6,901:

“Total cost of reconstruction with bituminous macadam ...................$73,388.34

Amount chargeable against property fronting on improvement — -1-4 of cost..... 18,347.10

Amount chargeable against area of district • — 3-4 of cost ....................... 55,041.24

Total frontage taxed, 17,631.62 feet;

Rate per front foot ........$1.04058

Front feet of lot taxed, 1,366.17...... 1;421.61

Total area in district taxed, 3,488,961 square feet:

Rate per 100 square feet----$1.57758

Area of lot taxed, 304,915 ........... 4,810.28

$ 6,231.89”

(Then follows the,certificate of the president of the Board of Public Improvements of St. Louis.)

The charter of the city of St. Louis is fundamental law and all authority for making public improvements is specifically granted therein. Its provisions, adopted by the people of the city under the authority of the Constitution, have all the force of legislative enactments. Wherever authority is given by the charter for the doing of a particular act and the method of doing it is prescribed, such authority and method prevail over anything to the contrary on the subject that may be provided by ordinance of the municipal assembly.

Section 14 of article 6 of the city charter specifically defines the assessment district for any given street improvement and prescribes how it shall be established. Any act of the municipal assembly attempting by ordinance to change the district so fixed would be a nullity; and any act of the assembly fixing the same district otherwise than prescribed by the charter would be surplusage. So, if the charter has been followed in fixing the assessment district for the improvement in question, neither an ordinance provision nor the absence of one can change the liability of the appellant. [Section 14, article 6, Charter of St. Louis, clause three; Meier v. City of St. Louis, 180 Mo. 391, 79 S. W. 955; State ex rel. v. City of St. Louis, 183 Mo. 230, 81 S. W. 1104.]

II. For the purpose of special assessments under the charter, the existence of a “lot” is not determined wholly from official plats. Within the letter and meaning of the charter this fact may be determined by usage. If the owner uses the property in disregard of lot lines, as shown on the plats thereof, then such lots and parts of lots as he uses together, in disregard of lot lines, constitute one “lot” or “parcel of ground” for the purpose of special assessements.

The last clause of section 14, article 6, of the charter provides: “ ‘Lot-’ Defined: The word dot’ as used in this section, shall be held to mean the lots 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 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.” [Meier v. City of St. Louis, supra; State ex rel. v. City of St. Louis, 211 Mo. 591, 111 S. W. 89.] The word “lot” may include acreage tracts, and has been held to include tracts of two, fourteen and even sixty-five acres. [City of Salem ex rel. v. Young, 125 S. W. 857, 861.]

The owner of this tract or lot had used the same in disregard of platted lot lines. The property in question, together with the north half of the block had been assessed as acre property — as a fourteen acre tract— since about the year 1886, and the taxes were paid upon it as such by the defendants from that time until the present. They have, therefore, without protest, been paying taxes on a strip of ground known as “West avenue.” The evidence tends to show that this so-called “avenue” has never been a public street and has never been recognized as such by the owner since a trustee’s sale in 1878 nor used by the public for street purposes at any time. A race track which extended over the area involved in this assessment was laid out and used for many years by the owner, the present defendant, without reference to “West avenue,” or to platted lots. The ground was also used for circus purposes year after year without reference to street or lots. And Camilla Mc-Manus used it as a pasture in the same way. All of it was inclosed — so far as inclosed at all, under one fence and as one tract. This is true as to the entire tract, including the north half, which is not involved in this suit. The fact that some quitclaim deeds were made to Camilla McManus — in which the lots as platted were described — in order to clear up the title would not change the situation in any way. There is nothing shown in this record that would preclude the defendant from asserting his title to that strip of ground, originally platted as a street and called “West avenue.” It has never been used as a street and there is no fact in this record that would give the city of St. Louis any right therein. There is no pretense that it was ever used for a day as a public thoroughfare or that the city ever exercised any control over it or assumed any responsibility concerning it. In view of these facts, it is idle to claim that this strip of ground has a single element of a public street and should be allowed to escape taxation.

III. The appellant claims that only taxbills made out in accordance with the provisions of the charter create a prima-facie case, and that, therefore, the omission of a designated place of payment in the taxbill would render the bill immature because the appellant had a right to know where to pay the bill.

As the taxbill did not designate a place of payment, the question is presented whether such provision of the charter is mandatory or directory. It is to be observed that there are no negative terms in connection with this charter provision as to place of payment ; in fact, nothing whatever is made to depend upon it. The' provisions to make improvements, levy the assessment, and issue a taxbill for its enforcement, are all quite independent of this clause pertaining to the place of payment, and are in no sense dependent or conditioned upon a compliance therewith.

The distinction between mandatory and directory enactments has often been under consideration by the courts. Into which of these classes any given statute falls is to be determined by its character and purpose. If no substantial rights depend upon it and no injury can result from ignoring it, and the purpose of the Legislature can be accomplished in a manner other than as prescribed -therein and substantially the same results obtained, then the statute will generally be regarded as directory. The provision in section 21, article 6, of the charter as to the place of payment being designated in the taxbill should be construed as directory as it is a provision upon which no substantial authority or right of either the city or. the owner of the property or the contractor depends. The authority of the city, the rights and liabilities of the property-owner, and the rights of the contractor are all definitely fixed in other provisions of the charter, and all are quite independent of tbis provision. As the taxbill was issued for the contractor and delivered to him and not the owner of the property, it might well be held that designation in it of a place of payment was for the contractor’s benefit which he might waive.

In the absence of any proof in this case that injury resulted therefrom, the failure to strictly comply with this provision ought not be held as a defense to an action on the taxbill, where demand of its payment was ■made on the defendant before suit, in writing, notifying the defendant where to pay same, as was done in this case. [Lewis’ Sutherland on Statutory Construction (2 Ed.), sections 611 and 613; City of St. Louis v. De Noue, 44 Mo. 136; State ex rel. v. Hannibal & St. J. R. Co., 113 Mo. 297, 21 S. W. 14; 27 Am. and Eng. Ency. Law (2 Ed.), 85.]

IV. The gravamen of defendant’s defense to this cause of action is that the property in controversy was wrongfully assessed because the property was on the 28th day of April, 1877, lawfully dedicated to public use, platted and laid out in streets, alleys and town lots by one Robert Baker.

The plaintiff contends that said dedication was at • all times void, irregular and of no effect for the reason that at the time of the filing of said pretended plat, the said Robert Baker had no power, no capacity and no title sufficient to make a legal dedication of said property to public use. Prior to said pretended dedication, about the year 1874, the said Robert Baker and his wife had conveyed the legal title of said property to one Robert W. Powell, by a deed of trust duly recorded, thus reserving to themselves only the conditional defeasible right of redemption. Therefore at the time of said pretended dedication, the said Robert W. Powell was the owner of the legal and fee simple title, subject to the right of redemption of the said Baker, and nothing more. However regular said pretended plat may be with reference to the technical requirements of the statutes in force in this State at the time it was filed, said Baker was incompetent and held no title upon which he could base a valid dedication. No action on the part of the State or the public could enlarge his power or title. Furthermore, subsequent to said pretended plat, the said Baker forfeited all his right, title and equity of redemption by his failure to comply with his obligation, and thereupon by sale of said property under the deed of trust, said equity or redemption was forever barred and foreclosed, and the said Baker’s right of redemption extinguished. Hence he conveyed nothing to the public and the public received nothing and the pretended plat became void and still remains void so far as the title to the land is concerned.

A dedication of land to public use as a street can be accomplished in only two ways — either under the statute or according to the common law. A statutory dedication must be by the owner of the fee and must be accepted by the public. A public street and the responsibilities involved cannot be imposed on the public against its will. A common-law dedication, likewise, requires an abandonment on the part of the real owner and acceptance and used by the public. Without these two elements concurring for a required time, there can be no dedication at common law. “As it is essential that to be valid a dedication must create a use unlimited as to the time of its duration, and as it is the very essence of a dedication that the owner of the land has consented to abandon it, it is a necessary conclusion that no one except the owner of an unlimited estate or an estate in fee simple can make a dedication of land.” [13 Cyc. 442.] “The same rule applies in a statutory. dedication of land for a street, that does in the conveyance of land by deed. The dedicator cannot pass by dedication what he does not own any more than a grantor in a deed can pass the title to land which he does not own in fee, and no one not holding under the dedicator is not estopped to deny his title to the property thus attempted to be dedicated.” [Kansas City Milling Co. v. Riley, 133 Mo. 574, 584, 34 S. W. 835. See also McBeth v. Trabue, 69 Mo. 642; City of Sarcoxie v. Wild, 64 Mo. App. 403; City of St. Louis v. St. Louis University, 88 Mo. 155; Irvin v. Dixon, 9 How. (U. S.) 10; McGrath v. City of Nevada, 188 Mo. 102, 86 S. W. 236.] As the property was sold out in 1878, under a deed of trust antedating the plat, all interest conveyed and the subdivisions attempted to be established by the plat were extinguished and the fee invested in the purchaser free therefrom, including the strip designated on the plat as “West avenue.” And, as no act has been performed by the present owner (the purchaser under said deed of trust) which would amount to a dedication of the property either under the statute or at common law, it must follow that the officials of the city acted within their authority and duty in assessing it as acre property.

V. The paragraph of section 25 of the charter, making taxbills prima-facie evidence when made out in accordance with the charter, make the taxbill primafacie evidence of four facts which are stated in the charter as follows: (1) “That the work and material charged in such bills shall have been furnished;” (2) “Of the execution of the work;” (3) “Of the correctness or rates of price, amount thereof;” and (4) “Of the liability of the person therein named as the owner of the land, charged with such bill, to pay the same.”

A special taxbill issued in pursuance of the charter of St. Louis, in. payment for labor and material furnished by the contractor in improving a public street of the city, when certified by the proper authorities thereof is prima-facie evidence as above stated of ail the necessary facts to create a lien upon the property affected and to entitle the holder, in a suit thereon, to a judgment foreclosing and enforcing the same. And such taxbill, when properly identified and introduced in evidence, establishes a prima-facie case in favor of plaintiff which can only be overcome by proof offered by defendant of facts which destroy its validity or regularity. [Section 25, article 6, Charter of St. Louis; Heman v. Farish, 97 Mo. App. 393, 71 S. W. 382; Cushing v. Powell, 130 Mo. App. 576, 579, 109, S .W. 1054.]

In this case, justice will be promoted and no public or private right invaded by applying the above equitable rule that the charter provision as-to the taxbill designating a place of payment is merely directory. To defeat the present taxbill on that ground would subserve no good purpose, but would deprive the plaintiff of its just claim for material furnished and labor faithfully perforraed for which it is entitled to compensation under the contract and of which the defendant’s property has received the benefit in enhancement of its value. The officers of the city, charged with such responsibility, have faithfully and properly discharged their duties in assessing the tax for this improvement, and the same could not have been done otherwise without a violation of the plain terms as well as the spirit of the charter.

Finding that no material error was committed and that the judgment was for the right party, the same is hereby affirmed.

All concur.