City of Springfield v. Baxter
Decision Date | 14 April 1914 |
Parties | CITY OF SPRINGFIELD, ex rel., BANK OF COMMERCE, Appellant, v. ELIZABETH R. BAXTER, Respondent |
Court | Missouri Court of Appeals |
Appeal from Greene County Circuit Court.--Hon. Guy D. Kirby, Judge.
AFFIRMED.
Judgment affirmed.
Lewis Luster, for appellant.
(1) The unlawful use or taking of property cannot be set up as a defense in an action on a special tax bill. Village v Borden, 94 Ill. 26; Holmes v. Village, 121 Ill 129, 13 N.E. 540; Hunerburg v. Village, 130 Ill 156, (22 N.E. 486); Maywood Co. v. Village, 29 N.E. 704; Jackson v. Smith, 22 N.E. 432; Palmer v. Stumph, 29 Ind. 329; McGill v. Bruner, 65 Ind. 421; Henderson v. Railroad, 78 N.Y. 423; Moore v. City of Albany, 98 N.Y. 396. (2) A substantial compliance with the ordinance providing for the improvement is all that the law requires, and a slight variance of a few inches in constructing the sidewalk will not invalidate the bill. Lowell v. Hadley, 8 Met. 194; Town and Land Co. v. Knowl (Ky.), 55 S.W. 205; Cole v. Shranka, 105 Mo. 303; Johnson v. Duer, 115 Mo. 366. (3 If a part of the work has been done outside of the provisions of the ordinance and such portion is not a proper charge because thereof, the erroneous charge may be omitted from the tax bill and a judgment rendered for the balance, for the mere fact that part of the charge is unlawful will not render the tax bill void. Boonville, ex rel. v. Rogers, 125 Mo.App. 142; Ernst v. City of Springfield, 145 Mo.App. 109; Johnson v. Duer, 115 Mo. 366; Walsh v. Bank, 139 Mo.App. 648; Nennan v. Smith, 60 Mo. 292; Bank v. Arnoldia, 63 Mo. 229; Neill v. Ridge, 220 Mo. 255, 116 S.W. 619; Joplin, ex rel. v. Freeman, 125 Mo.App. 717; Haag v. Ward, 186 Mo. 349; Perkinson v. Schaake, 108 Mo. 255; Steffen v. Fox, 124 Mo. 635; Burrough of Athens v. Carmer, 32 Atlanta 422; Webb City, ex rel. v. Aylor, 163 Mo.App. 165; Joplin v. Dillion, 61 Mo.App. 217.
Wright Bros., for respondent.
(1) The law pertaining to construction of sidewalks must be strictly construed and strict compliance by the contractor is required. Distinction must be made between those matters which effect the substantial rights of the parties and those which are formal and directory. Cole v. Skranka, 105 Mo. 309. (2) If in any material respect the ordinance of the city bearing upon the question involved had been disregarded by the city authorities or the plaintiff, his suit or his tax bill could not be maintained. Cole v. Skranka, 105 Mo. 309. (3) There is no separable portion in the sidewalk or tax bill. K. C. v. O'Connor, 82 Mo.App. 664; Addison on Conts., Sec. 299-300; 2 Cheety on Conts. (11 Ed.), 973. (4) Defendant admits there was a trespass. The city had ordered the walk constructed on the street and it was partly constructed on plaintiff's property. The contractor must look to the city for his pay for work not paid for if the fault or mistake was made by the city. Johnson v. Duer, 115 Mo. 382.
--This suit was brought by the plaintiff, Bank of Commerce, as assignee of a special tax bill issued by the city of Springfield, Missouri, for the construction of a first-class four-foot sidewalk. Judgment went for the defendant and the appeal is brought by the bank. The trial court made a finding of facts which the appellant submits here as the case on which the question of the validity or invalidity of the tax bill depends. It may therefore serve as a complete statement of the case and is here set forth:
It was admitted by the appellant at the oral argument in this court that the portion of the work found by the trial court to be on private property consists of a triangular strip, the base of the triangle being eight inches off the front of defendant's lot, and the hypotenuse running back to a point one hundred and forty feet south of the front line of defendant's lot. The sidewalk is four feet in width. It lies along the east side of Myrtle street the entire length of defendant's lot--one hundred and sixty-seven feet. It is admitted by appellant that that part of the work contained in the lines of the triangle referred to is not in the space in Myrtle street which is designed for parking and sidewalk, but does in fact encroach that much upon the private property of the defendant. At a point one hundred and forty feet south of the front line of defendant's lot the east line of the sidewalk leaves the property line and continues on for twenty-seven feet in the parking on the east side of Myrtle street, making a part of the sidewalk, to-wit, twenty-seven lineal feet, entirely off defendant's lot and in the parking.
Plaintiff submitted three instructions (which were refused) which developed the theories on which it hoped to recover, namely: (1) That the encroachment on the private property did not in any way render the tax bill void, plaintiff seeking recovery thereon for the full amount. (2) Admitting the part contained in the triangle on defendant's lot was unlawful, it would not render the tax bill void as to the entire balance of the sidewalk. (3) Conceding that all the sidewalk covered by the tax bill back to the one hundred and forty foot point was unlawful, a recovery should be had for the twenty-seven feet continuing in the parking.
The first proposition--that a tax bill is not rendered void because the improvement is placed on private property--finds some support in the authorities cited in appellant's brief: Village of Hyde Park v. Borden, 94 Ill. 26; Holmes v. Village (Ill.), 13 N.E. 540; Hunerburg v. Village (Ill.), 22 N.E. 486; Maywood Co. v. Village (Ill.), 29 N.E. 704; Jackson v. Smith, (Ind.) 22 N.E. 431; Palmer v. Stumph, 29 Ind. 329; McGill v. Bruner, 65 Ind. 421. See, in addition, Boynton v. People ex rel. Kern (Ill.), 42 N.E. 842; Page and Jones on Taxation by Assessment, Vol. 1, Secs. 398 and 399, and cases cited.
However, the great weight of authority in this country is the other way, and such cases as we are able to find in Missouri hold that such an assessment is invalid and unenforceable when the tax bill is issued for public improvements placed on private property where the city owns neither the fee nor the easement. [See Page and Jones on Taxation by Assessment, Vol. 1, Sec. 396, and cases cited; 28 Cyc. 1108; Western Pennsylvania Ry. Co. v. City of Allegheny, 92 Pa. 100; Richter v. Mayor, Etc., of City of New York, 54 N.Y.S. 150; In re Cheesebrough, 78 N.Y. 232; Lorenz v. Armstrong, 3 Mo.App. 574; Carroll v. City of St. Louis, 4 Mo.App. 191; Miller v. Anheuser, 2 Mo.App. 168.]
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