Schneider Granite Co. v. Gast Realty & Investment Co.

168 S.W. 687, 259 Mo. 153, 1914 Mo. LEXIS 64

Opinion

WILLIAMS, C.

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 had in the circuit court of-the city of St. Louis, resulting in a judgment for plaintiff for the full amount with interest. Defendants have perfected an appeal to this court. By the St. Louis charter, it is provided that special assessments for street improvement shall be levied, one-fourth against the land fronting upon or adjoining the improvement and three-fourths proportionately against all the land lying within the benefit district to be fixed as provided by said charter. Said benefit district is established as follows:

“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 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 Broadway; that if section 14 of article 6, of the charter of the city of St. Lonis, when correctly construed, authorizes the fixing of the western line of said district at the place it was in fact located in the instant case then said charter provision is illegal and void because of being in violation of section 1, article 14 of the amendments to the Constitution of the United States and sections 20 and 30 of article 2 of the Constitution of Missouri; that said portion of the west boundary of said district should have been located “at a distance west of Broadway equal to the average distance of the district line on the east side of the improved street” as provided by the charter when there is no parallel or converging street on one side of the improved street; that if the western district line had been drawn a distance from Broadway equal to the average distance of the opposite.boundary line it would have been much closer to Broadway and would have omitted from the assessment district a large portion of the property included in said tax bill.

(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 Broadway and the new extension of Church road instead of half way between Broadway and Hornsby avenue as it existed at the time the ordinance was passed. (Note. This had the effect of taking more land into the assessment district but land other than that involved in the present .tax bill.)

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 reason thereof said tax bills including the one in suit were rendered illegal and void.

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.

Boundaries of Benefits District: Charter St. Louis. I. It is contended that that portion of the western boundary of the benefit district affecting the property involved in the present tax bill was erroneously fixed one-half way between Broadway and Church road and further that if the charter of St. Louis be construed to' authorize the fixing of the boundary line in such manner then said charter provision is in conflict with the Fourteenth Amendment to the Constitution of the United States and with sections 20 and 30 of article 2 of the Constitution of Missouri.

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.]

_. -: "Lots" II. It is further contended that the benefit district should have been extended so as to have taken in (to their full depth) certain parcels of ground owned by the city and occupied by its water works plant; said property fronts upon the improved street and is described as lots “I” and “H” of H. Gimblin’s estate in partition. Each of said parcels of ground contains about thirteen acres of land and has a depth of about 1400 feet extending eastward from the improved street. From the evidence it appears that there was no parallel or converging street east of that portion of the improved street upon which this property fronts. The district fine at this place was drawn parallel with and a distance of 240 feet from the improved street; said 240 feet being the average distance of the district line on the opposite side of the street. If the two above-mentioned tracts of land are “lots” within the meaning of the city charter, then the district line should have been extended so as to take in the full depth thereof. This would have greatly increased the area of the benefit district and therefore have greatly reduced the amount of tax assessed against the land involved in the present tax bill. If, on the other hand, said tracts of land are not “lots” within the meaning of the charter, then the district line was properly located. The tracts of land marked “I” and “H” were formerly a part of the H. Gimblin’s estate or farm. After said Gimblin’s death his estate, consisting of several acres, was partitioned. Commissioners in partition divided the estate into ten separate tracts of land, designating the separate tracts upon a survey by letters respectively from “A” to “K,” both inclusive. These separate divisions varied in size, ranging from about four acres to about forty-eight acres and the separate parcels were allotted to the respective parties in partition. A survey was made of the division of the estate and the survey or plat accompanying the commissioner’s report in partition was recorded in the office of the recorder of deeds of St. Louis county. There is nothing to show that said plat was ever approved or accepted by the board of public improvements of the city of St. Louis. We think it clearly apparent that said tracts of ground are not “lots” within the meaning of the charter, and that therefore the district line at that place was properly located. In the case of The Collier Estate v. Western Paving & Supply Company, 180 Mo. 362, l. c. 385, where a situation similar to the one in the case at bar was involved, the court in Banc, speaking through Gantt, J., said: “As to the claim that this tract was divided into lots and the plat recorded, because in the partition suit portions of it were allotted in the survey and these allotments recorded with the commissioner’s deed, we think it is untenable. There is no pretense that such allotment plat was approved by the board of public improvements and recorded in the plat books in the recorder’s office:"

Who May Complain That Land is Wrongly Included. III. It is urged that the tax bill is void by reason of the location or fixing of that portion of the western boundary line which extends southward a distance of approximately 240' feet from the northwest corner of the benefit district. At the time the ordinance authorizing the improvement was passed, Hornsby avenue ran parallel to Broadway at this point. While the work was in’progress and before the work was completed, Hornsby avenue was vacated and Church road was extended northward so that at the close of the work this extension of Church road was the next parallel street along this portion of the improved street. This extension of Church road was approximately 150 feet farther west of«Broadway than wag Hornsby avenue. The district line at this place was placed one-half way between Broadway and this extended parallel portion of Church road, thereby including in the benefit district a strip of ground about 70' by 240 that would not have been included in the benefit district had the district line at this point been fixed half way between Broadway and the next parallel street existing at the time the ordinance was passed. This strip of ground thus taken into the benefit district was no part of the land against which the present tax bill was issued. This being true, defendant, so far as his property is involved in the present suit, was henefitted and not harmed by reason of the boundary line being fixed where it was. Three-fourths of the cost of t]ie improvement is assessed proportionately against the area of all the land in the benefit district. The larger this benefit district the smaller the assessment per square foot. The fixing of the district line as it was fixed had the effect of bringing more land into the district, therefore the land in the present tax bill was assessed for a less amount than if the line had been fixed at the place contended for by appellants. Under such circumstances, appellants should not be permitted to urge such irregularity against the validity of the present tax bill, but that question should be left for determination in the suit involving the validity of the tax bill embracing that particular tract. The suit involving the validity of the tax bill embracing that particular tract is now under submission in this division of the court and that point will be discussed therein.

byPci°ty?atl°n IY. The ordinance authorizing the improvement made provision for an appropriation of $17,168' out of the real estate fund of said city, with which to pay the city’s proportion of the cost of said improvement. The charter 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.” In the case at bar the amount to be paid by •the city could only be determined by the amount of the city’s property which was properly included within the benefit district. The district boundaries were fixed automatically by the charter. An ordinance could not add to or take from the benefit district. [Collier Estate v. Western Paving & Supply Company, supra, l. c. 375.]

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 completed and the city authorities were ready to issue the tax bills it was ascertained that the city’s correct proportion was $7994.78. The appropriation of $17,-168 was made by the municipal assembly, evidently under the mistaken idea that the benefit district would extend to the full depth of tracts “I” and “H” owned by the city. The identical point here raised was passed upon by this court in the case of Perkinson v. Weber, 251 Mo. 186. In that case, Brown, P. J., speaking for the court, said: “The appropriation mentioned turned out to be more than a thousand dollars larger than was necessary to cover the city’s part of improving Twentieth street, but that did not harm defendants in any way. . . . Because the municipal assembly acted with abundant caution in appropriating a larger sum than was necessary would constitute no warrant for spending the surplus of that appropriation in paying special taxes on property of defendants or other private persons. All of the costs . . . which were legally chargeable against the city of St. Louis were paid out of the appropriation, and the contention of defendants that the remainder of said appropriation should have been applied on said improvements must be disallowed.”

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 section 14, article 6 of the charter. And by providing for deducting from the total cost the amount to be paid by the city as provided by section 5 of the ordinance (said section 5 not fixing the city’s liability but only appropriating to pay its proportion as fixed by the district under the charter) said ordinance should not be construed to mean that the legal amount assessable against the remainder of the property in the benefit district should be less than its legal share. It is true that it was necessary that the ordinance make an appropriation for paying the city’s part but this provision can not fix the city’s proportionate part. It can only provide the funds out of which the city’s proportionate part (otherwise fixed) can be paid. What is said in this paragraph as to the construction to be placed upon said ordinance will also apply to the construction to be placed upon the contract between the city and the contractor which contract was based upon the ordinance.

Tax Bills: Notice of issuance. Y. The charter provides that tax bills “may be collected of the owner of the land and in the name of and by the contractor, as any other claim in any court of competent jurisdiction, wibfi interest at the rate of six per cent per annum after thirty days notice of its issuance as hereinafter provided. ... It shall be the duty of the city marshal, at the request of the holder or owner of any tax bill issued under this charter, to serve upon the party or parties named in such tax bill a notice of the issuance thereof,” etc.

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:

“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. However, the charter does not provide that the notice shall contain a description of the property. The description given in the present notice was sufficient to apprise the owner that it was his land against which the tax bill was issued. The notice gave the date of the tax bill, its amount, and the number of thé ordinance and contract authorizing the work and also designated the street improvement for which the tax bill was issued and stated at what bank the tax bill was payable. We cannot conceive how appellant could have been misled in any way or how its rights could have been impaired by reason of any information which the notice failed to impart. It gave sufficient information of the “issuance” of the tax bill and was a sufficient compliance with the charter provision as to such notice.

To Subsequent Purchasers of Land. After the above notice was given, defendant Emily Gast became the record owner of a small portion of the property against which this tax bill was issued. And later the tax bill was amended by giving an accurate description of-the property by metes and bounds and by adding the name of Emily Gast as owner. No notice was ever given said Emily Gast. But the charter makes no provision for notifying subsequent purchasers of the property of the issuance of the tax bill but only provides for notice of its issuance to be given the person named in the tax bill at the time- the notice is given.

Amending Tax Bill. VI. The tax bill was issued February 8,1909, and the above notice of its issuance was served upon appellant corporation March 3, 1909; on December 17, 1909, the tax bill was amended by correctly describing the property by metes and bounds and by adding the name of appellant Emily Gast, who had become the record owner of a portion of the land after the issuance of the tax .bill. This suit was instituted afterwards and'is based upon the amended tax hill. This amendment was made and indorsed by the same city authorities that issued the original tax bill.

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.

Roy, G., concurs.

PER CURIAM. — The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur.