Granite Bituminous Paving Co. v. McManus

• Decision Date: 06 June 1910
• Citation: 144 Mo. App. 593,129 S.W. 448
• Parties: GRANITE BITUMINOUS PAVING CO. v. McMANUS.
• Court: Missouri Court of Appeals

129 S.W. 448

144 Mo. App. 593

GRANITE BITUMINOUS PAVING CO. v. McMANUS.

Springfield Court of Appeals. Missouri.

June 6, 1910.

1. MUNICIPAL CORPORATIONS (§ 111)—ORDINANCES—CONFLICT WITH CHARTER—EFFECT.

The charter of a city, adopted by the people thereof under constitutional authority, has all the force of legislative enactments, so that, whenever 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 will prevail over anything to the contrary on the subject that may be provided by ordinance of the municipal assembly.

2. MUNICIPAL CORPORATIONS (§ 456)—SPECIAL ASSESSMENTS—MODE OF ASSESSMENT —"LOT."

St. Louis City Charter, art. 6, § 14 (Ann. St. 1906, p. 4854), relating to the assessment of property for local improvements, declares that the word "lot," as used in the section, shall mean the lots as shown by recorded plats of additions or subdivisions, but if there was no recorded plat, or if the owners had disregarded the lines of lots as platted, and have treated two or more lots or fractions thereof as one lot, then the whole parcel so treated as one shall be regarded as a lot for the purpose thereof. Held that, where the owner of a tract or lot had used the same in disregard of platted lot lines, and had occupied it in disregard of a platted street for a race track since 1878, it was properly assessed for a street improvement as a single lot, regardless of its original platted subdivisions.

3. MUNICIPAL CORPORATIONS (§ 422)—STREET IMPROVEMENTS — ASSESSMENT — PROPERTY SUBJECT— "PUBLIC STREET."

Where land within a city including a street had been used together for a race track for many years without reference to the street or the original subdivisions, or the platted lots, the entire property being also used year after year for circus purposes without reference to street or lots, and the street never having been used by the public for street purposes at any time, so that there was nothing to preclude defendant from asserting title to the strip originally platted as a street, it did not constitute a public street, and was therefore subject to special assessments for improvements.

4. STATUTES (§ 227) — "MANDATORY" AND "DIRECTORY ENACTMENTS."

Whether a statutory requirement is mandatory or directory depends on its effect. If no substantial rights depend on it and no injury can result from ignoring it, and the purpose of the Legislature can be accomplished in a manner other than that prescribed and substantially the same results obtained, then the statute will generally be regarded as directory, but if not, it will be mandatory.

5. MUNICIPAL CORPORATIONS (§ 485)—SPECIAL IMPROVEMENTS — TAX BILL — FORM — PLACE OF PAYMENT—DIRECTORY PROVISIONS.

St. Louis City Charter, art. 6, § 24 (Ann. St. 1906, p. 4863), providing that tax bills shall designate either the city treasurer, or, at the option of the person entitled to such bills, the name of some bank or trust company located and doing business in the city of St. Louis, to whom payment shall be made, is directory only so that, in the absence of proof that injury resulted therefrom, failure to strictly comply therewith was not a defense to an action on the tax bill, demand in writing, for payment having been made on the defendant before suit notifying him where to pay the same.

6. DEDICATION (§ 12)—OWNERSHIP—MORTGAGOR.

Where an owner of land executed a deed of trust thereon, conveying the legal title to the trustee, and such deed was duly recorded, a subsequent attempted dedication by the grantor of a part of the land for a public street was void, the dedicator having thereafter forfeited all his right and equity of redemption by his failure to comply with the obligation in the trust deed, which was foreclosed.

7. DEDICATION (§ 12)—TITLE OF DEDICATOR.

A dedication under the statute must be by the owner of the fee, and, if under the common law, there must be an abandonment on the part of the real owner.

8. DEDICATION (§ 48)—PLATTING OF LAND—SALE UNDER DEED OF TRUST.

Where property was sold out in 1878 under a deed of trust antedating a plat of the property, all interest conveyed and the subdivisions attempted to be established by the plat were extinguished, and the fee vested in the purchaser free therefrom, including a strip designated on the plat for a street.

9. MUNICIPAL CORPORATIONS (§ 485)—SPECIAL TAX BILLS—PRIMA FACIE EVIDENCE.

Under St. Louis City Charter, art. 6, § 25 (Ann. St. 1906, p. 4863), making special tax bills prima facie evidence when made out in accordance with the charter, such bills are prima facie proof that the work and materials charged in the bills have been furnished, of the execution of the work, of the correctness or rates, the amount, and of the liability of the person therein named as the owner of the land, charged with the bill, to pay the same, and such prima facie case can only be overcome by proof of facts destroying its validity or regularity.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by the Granite Bituminous Paving Company against Thomas Ward McManus. Judgment for plaintiff, and defendant appeals. Affirmed.

This appeal is from a judgment of the St. Louis City circuit court, in favor of plaintiff, in a suit upon a special tax bill issued by the officers of said city to plaintiff in payment for labor and material furnished in the improvement of a public street. The property affected by the lien of the tax bill sued on is the south half of city block No. 3,920 in said city, which fronts on Laclede avenue, the street improved by plaintiff. This block is rectangular in form, having its greater length from east to west. The block is 1,366.17 feet in length and 446.38 in depth. It is bounded on the north by Pine street, east by Vandeventer avenue, south by Laclede avenue, and west by Sarah street. The property in this district was assessed by the officials of the city of St. Louis, charged with that duty, as acre property, and the assessment district established in accordance with the provisions of section 14 of article 6 of the charter of the city of St. Louis, which fixes the boundaries of the district to be assessed for any given improvement. Under ordinance No. 21,502, authority was given to improve Laclede avenue from Grand avenue to Kingshighway boulevard. The tax bill sued on was issued in payment for the improvement of Laclede avenue, between Vandeventer avenue on the east and Sarah street on the west, the same being a portion of the street authorized to be improved under the said ordinance. Laclede avenue is an east and west street, and Vandeventer avenue and Sarah streets are both north and south streets. The defendant's property involved in this special tax bill abuts upon the north side of Laclede avenue all the way from Vandeventer avenue on the east to Sarah street on the west. Under said section 14 of article 6 of the city's charter, the assessment district taxed for payment of the improvement of that portion of Laclede avenue between those two streets is formed by drawing a line midway between Laclede avenue and the next parallel street on the north thereof, which is Pine street. The assessment district established in accordance with the mandate of the charter would, therefore, be bounded as follows: Vandeventer avenue on the east, Laclede avenue on the south, Sarah street on the west, and on the north by a line midway between Laclede avenue and Pine street, the next parallel street north, such midway line being distanced 223.19 feet from and north of said Laclede avenue.

The petition filed by plaintiff is in the usual form in such matters. It alleges the description of the property covered by the tax bill, and describes the part of the street improved in payment for which the tax bill was issued, and gives a description of the property included within the assessment district for such part of the improvement. It alleges also the proceedings of the board of public improvements of St. Louis, and the action of the municipal assembly of said city, setting out in full the ordinance passed by the said assembly authorizing the improvement. Also, the assessment of the property and the issue of the tax bill, the contract for the work and number thereof, and the performance of the work and the furnishing of material contracted for, by the plaintiff, and the acceptance of same by the city, and the delivery of the tax bill to plaintiff in payment therefor etc. Also the failure of the defendant to pay the first installment due upon said tax bill and the maturity thereof, and judgment was asked for the amount of the tax bill and for a lien upon the property described.

The answer of the defendant is a general denial, and an allegation to the effect that the property included in the tax bill is platted into lots, and that for that reason the property should not have been assessed as one tract, but that each lot should have been assessed separately, and tax bills issued accordingly. For a further defense, it was alleged that no place of payment was designated on said tax bill as, it is alleged, the charter requires.

The reply denies all the allegations of the answer. It also alleges that the property assessed is unimproved or practically without improvement, and that if the said property was ever legally or lawfully laid or platted or subdivided, according to law—which fact is denied—or that if any such subdivision now legally exists, that the said lots are adjacent and contiguous, and have been in use and occupation as one property, and that by the manner of his use of said realty, the defendant has long since disregarded such artificial division of same into lots, and that defendant is now estopped to claim otherwise, and has constituted and treated said realty as a single lot, and that the tax bill is lawfully and properly assessed and issued against the same as a single lot, and that the realty...