City of St. Louis v. Allen

• Decision Date: 31 March 1850
• Citation: 13 Mo. 400
• Parties: THE CITY OF ST. LOUIS v. THOMAS ALLEN.
• Court: Missouri Supreme Court

13 Mo. 400

THE CITY OF ST. LOUIS

v.THOMAS ALLEN.

Supreme Court of Missouri.

March Term, 1850.

ERROR TO ST. LOUIS CIRCUIT COURT.

The defendant in error filed his bill of equity at the November term, 1846, of the St. Louis Circuit Court, against the city of St. Louis, plaintiff in error, to restrain the said city, its officers and agents, from selling certain lands for taxes, assessed therein by said city, and praying for general relief, &c. The bill sets forth the locality and description of the lands and property, and the rights and interests therein, of the defendant in error, that said lands and property were wholly without the city limits, prior to the passage of the act of incorporation of said city, approved February 15, 1841. The 17th section, article 7, of said last named act, is as follows: “SEC. 17. The common council shall within twelve months from the passage of this act, cause to be graded and macadamized, the carriageway of Broadway, south Seventh, Washington avenue and Market streets, twenty-five feet wide from the boundaries of the city established by this act, to the nearest point macadamized within the present limits of the city, and until such carriageways aforesaid, are made and completed, the lots and grounds beyond the present limits of the city shall not be taxed for city purposes more than one-sixteenth of one per cent.” All which allegations are admitted by the answer of the city.

The bill further alleges that another act of incorporation of said city was granted, approved February 8, 1843, which last named act extended the boundaries of the city so as to include the whole of the lands and property upon which the tax complained of was assessed; that the last named act was passed by the General Assembly without the consent of complainant or his grantor: that the city levied a tax for city purposes on said lands and improvements for the years 1843 and 1844, of seven-eighths of one per cent. on the assessed value thereof; also a tax on the same, and for same purposes, for the years 1845 and 1846, of one per cent. on the assessed value thereof; that the complainant, before said lands and property were advertised for sale, by the comptroller of the city, for non-payment of said taxes, caused a tender of the one sixteenth of one per cent. of the assessed value of said property for the years above mentioned, to be made to the collector of taxes for the city, which tender was refused by the city; that subsequent to such tender, the comptroller of the city advertised the said lands for sale for the delinquent and unpaid taxes assessed for the years aforesaid; all which allegations are admitted by the answer of the city.

The bill further alleges that the city, prior to levying the said taxes o seven-eighths of one, and of one per cent. aforesaid, had not performed the condition or requirements of section 17, article 7, of the act of incorporation, approved February 15, 1841, upon the performance of which condition depended the power of the city to levy a greater tax on said lands (if taxable at all by the city) than one-sixteenth of one per cent.; that a part of the taxes for the non-payment of which the said lands were advertised for sale, were assessed on other property; that the acts of incorporation of 1841 and 1843, extending the boundaries of the city, and including within such boundaries the said lands of complainant against his will, and without the prior or subsequent assent thereto, of himself or his grantor, all unconstitutional and void; that the 17th section of article 7, of the act of 1841, was continued in force by the exception contained in the 24th section of article 7, of the act of 1843, which last named section is as follows: “SEC. 24. All acts and parts of acts contrary to, or inconsistent with the provisions of this act, or within the purview thereof, except the 17th section of the act entitled, an act to amend an act to incorporate the city of St. Louis, approved 8th February. 1839, are hereby repealed.”

The answer of the city denies that the condition or requirements of section 17, article 7, of the act of 1841, had not been fulfilled and performed before the said taxes were assessed, and alleges that said condition was fully performed by the city. The answer denies that any part of the tax, for the non-payment of which the said lands were advertised to be sold by the comptroller, were assessed on other property than said lands; the answer denies that the acts of 1841 and 1843, extending the boundaries, &c., of the city, are unconstitutional or void; the answer denies that the 17th section of article 7 of the act of 1841 was continued in force by the exception contained in the 24th section, article 7, of the act of 1843, and asserts that the said exception is void for uncertainty; and that section 17, article 7, was repealed by the last named act; the answer insists that the duty to grade and macadamize the streets mentioned in the 17th section, article 7, of the act of 1841 was not a condition precedent to the exercise of the right and power to levy a tax on the said lands of seven-eighths and of one per cent. on the assessed value thereof, because the said section 17 is inconsistent with other parts of said act, impossible to be fulfilled, unintelligible, and void for uncertainty. To the answer of the defendant the complainant filed his replication.

At the April term of said court the cause was heard on bill, answer, replication and proof. On the part of the complainant the following evidence was offered, viz: tax bills of the city, and to the effect that a tax of seven-eighths of one per cent. on the assessed value of the lands therein mentioned was levied by the city for the year 1843 upon the following property (the lands, &c., being the same in the complainant's bill mentioned), viz.

75 1/2 acres and improvements, valued at

$57,300

1 2/3 acres and improvements, valued at

750

10 slaves, valued at

3,000

3 horses, $90, and 3 cattle, &c

205--$61,255

Tax 7/8 per cent

$535 598

1 dog tax, $1, 1 poll tax, 50 cts

1 50

Interest from 1st July, 1843, to 1st July, 1846, 3 yrs

96 66

Total

Also a similar bill for a tax of seven-eighths of one per cent. on the assessed value of the same property, mutatis mutandis, for the year 1844; also a similar bill for a tax of one per cent. on the assessed value of the same property, mutatis mutandis, for the year 1845; also a similar bill for a tax of one per cent. on the assessed value of the same property, mutatis mutandis, for the year 1846.

The complainant also read in evidence from the “Republican” newspaper, printed in said city, the advertisement in which the lands in question were advertised for sale by the comptroller of said city, Robert Simpson, for the non-payment of the said taxes assessed on said lands as aforesaid by the city, for city purposes for the years 1843, 1844, 1845 and 1846, which sale, according to said advertisement, was to have taken place at the court-house in said city on the 30th day of November, 1846.

The complainant also proved that at the head of Washington avenue, about 300 feet east of the western limits of the city (as it was then incorporated), there is a cross-street 30 or 40 feet wide, which is paved from the head of Washington avenue to Christy street, which last named street is paved out westward to the city limits; that said cross-street was opened about 15 years ago, but not paved until 4 or 5 years ago, under the charter of 1841. That Washington avenue was opened east of said cross-street, under the charter of 1841.

The complainant also proved that Lafayette street, in Soulard's addition, was laid out by the proprietors before the extension of the city limits; that the distance from there to the south boundary of the city is a half or three-quarters of a mile; that in 1841 there was no paving on Seventh street south of Market street; at that time Seventh street extended south to Hickory street, and thence it coincided with Market street in Soulard's addition, and run on south to Lafayette street. The complainant also produced in evidence a map of the city, published by Hutawa, which by agreement may be used and referred to in this court.

On the part of the defendant, a letter from the city engineer to Wm. Russell (under whom complainant derives title), in regard to paving Seventh street and opening same, vide record, page 48 and following, dated May 31st, 1842, and Russell's reply thereto, dated June 3rd, 1842, with his deed relinquishing the right of way to the city and the public over a part of south Seventh street, were read in evidence.

The defendant produced and read in evidence various ordinances and parts of ordinances of the city, “printed and published in book form, and purporting to be so printed and published by authority of the corporation” (and which by agreement are to be read in this court), as follows: An ordinance entitled “a condensed ordinance in relation to streets and other highways,” approved November 24, 1835. This ordinance establishes and directs the opening of all the streets named in complainant's bill, as the city was then incorporated, and extending said streets to the out limits of the city. Ordinance No. 845, entitled an ordinance to establish, open, grade and macadamize certain streets therein named, approved October 9th, 1841.

This ordinance extends Broadway one hundred feet in width to the northern limits of the city, according to its boundaries at that time. Also Market street eighty feet wide to the western limits; also Washington avenue eighty feet wide, to western limits; and south Seventh street sixty feet wide to southern limits. And the fifth section of this ordinance directs the city engineer (who is a public officer, and recognized as such by the city charter of 1841), to cause the said streets “to be surveyed, leveled, located and opened to their full width,” &c. also by the same ordinance, the city engineer is directed to grade and macadamize the said streets,...