Perkinson v. Weber

• Decision Date: 17 June 1913
• Citation: 157 S.W. 961
• Parties: PERKINSON v. WEBER et al.
• Court: Missouri Supreme Court

157 S.W. 961

PERKINSON v. WEBER et al.

Supreme Court of Missouri, Division No. 2.

June 17, 1913.

1. MUNICIPAL CORPORATIONS (§ 458) — SPECIAL ASSESSMENTS — PUBLIC PROPERTY — PAYMENT BY CITY.

Where a city paid the portion of the cost of a street improvement chargeable to a city park under St. Louis Charter, art. 6, § 14, subd. 4, requiring it to pay assessments for benefits against any lands which are nonassessable, a private property owner cannot complain that all the money appropriated for the purpose, under St. Louis Charter, art. 6, § 28, requiring such an appropriation to be made by the ordinance calling for the work, was not applied for that purpose; it appearing that the appropriation was in excess of the amount properly chargeable against the park.

2. MUNICIPAL CORPORATIONS (§ 568) — STREETS — EVIDENCE AS TO EXISTENCE.

In an action to collect special tax bills issued for street improvements by the city of St. Louis under Charter, art. 6, § 14, providing that part of the cost shall be assessed upon land included in a district formed by drawing a line midway between the street to be improved and the next parallel street on each side, evidence held not sufficient to show that a street parallel to the improved street and between it and the street used by the city in determining the boundaries of the benefit district had become a public street either by deed, prescription, or condemnation prior to the attaching of the liens for the improvements.

3. APPEAL AND ERROR (§ 635) — DISMISSAL OF APPEAL — GROUNDS — EQUITY CASE.

The Supreme Court may dismiss an appeal of an equity case where the evidence is not all brought to that court.

4. EMINENT DOMAIN (§ 243) — EFFECT OF JUDGMENT — RELATION BACK.

The decree in condemnation proceedings to open a street relates back only to the institution of the suit.

5. MUNICIPAL CORPORATIONS (§ 519) — ASSESSMENTS FOR BENEFITS — PROPERTY LIABLE.

The opening of a street parallel to an improved street which would have reduced the assessment against a property owner, under St. Louis Charter, art. 6, § 14, prescribing the boundaries of a benefit district, does not destroy any part of the lien for the improvements which had already attached by the issuance of special tax bills prior to the opening of the new street.

6. JUDGMENT (§ 194) — DISPOSAL OF ALL ISSUES.

In an action to collect special tax bills, where the answer of the defendants asked that the bills be canceled as a cloud upon their title, a decree awarding a lien upon the land of the defendants need not expressly dispose of the defendants' prayer for affirmative relief, since it necessarily implies that the defenses were disallowed.

Appeal from St. Louis Circuit Court; William M. Kinsey, Judge.

Action by James E. Perkinson against Gertrude Weber and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Action to collect special tax bills against defendants' real estate in the city of St. Louis. From a judgment for plaintiff in the circuit court of that city, defendants appeal.

Plaintiff's tax bills were issued against some unplatted land between Twentieth street and Florissant avenue in St. Louis city to cover part of the expense of improving Twentieth street. Said Twentieth street runs north and south through said city. Under section 14, art. 6, of the charter of St. Louis, street improvements may be paid for by special assessments against the property fronting or adjoining the improvements; one-fourth of such special taxes being levied upon the frontage of the street to be improved, and the remaining three-fourths upon the area of land included in a benefit district formed by drawing a line midway between the street to be improved and the next parallel or converging street on each side of the street to be improved. The benefit district formed for the improvement of Twentieth street included a strip of Hyde Park, which, as its name indicates, is a public park of the city not subject to taxation; so that the legislative department of the city in the ordinance which provided for the improvement of said Twentieth street appropriated $6,200 out of the city treasury to cover that part of the expense of the proposed improvement which it was estimated would have been levied upon Hyde Park if such park had been private property.

Defendants in their answer to plaintiff's petition allege that the tax bills sued on are excessive and invalid for the following reasons: (1) That only $5,180.92 of the money appropriated from the city treasury was applied towards paying for the improvement of said Twentieth street, and the remainder of the cost of said improvement was wrongfully taxed against the property of defendants and other persons owning lands in the benefit district. (2) That in creating and prescribing the boundaries of the benefit district for improving Twentieth street the city, through its officers, wrongfully ignored a public street known as Twenty-First street lying between Twentieth street and Florissant avenue, and included too much of defendants' lands in the benefit district, thereby unlawfully increasing the size of the tax bills assessed against defendants' property.

Defendants in their said answer demand the cancellation of the tax bills on the ground that they are invalid and a cloud upon the title of defendants. For the reason that defendants' answer and prayer are for affirmative equitable relief, the circuit court tried the case as an action in equity. The existence or nonexistence of Twenty-First street as a public thoroughfare of St. Louis at the time the benefit district was formed for the purpose of improving Twentieth street is the chief bone of contention between plaintiff and defendants. For the purpose of making the opinion as brief as propriety will admit, we will consider the evidence regarding Twenty-First street in our opinion.

H. A. Loevy, of St. Louis, for appellants. Kinealy & Kinealy, of St. Louis, for respondent.

I. Appropriation.

BROWN, P. J.

The insistence of defendants that the officers of St. Louis city committed error in failing to apply all of the $6,200 appropriation towards improving Twentieth street before prorating and assessing any part of the expense of improving said street against the property of defendants cannot be sustained. By section 28, art. 6, of the charter of St. Louis, when any ordinance is enacted by the municipal assembly of that city calling for work to be paid for by the city, such ordinance must appropriate a specific sum of money out of the city treasury to cover the liability incurred by the city in carrying out the provisions of such ordinance. Subdivision 4, § 14, of article 6, of said charter, further provides that, when any lands are located in a benefit district which are not liable to special assessments, the city must pay whatever special assessments would have been assessed against said nonassessable lands if the same had been private property. The nontaxable lands in the benefit district established to improve Twentieth street is a part of Hyde Park, and the appropriation before referred to was made to cover the city's share of the expense of improving said street in front of the park. 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. Section 27, art. 6, of the charter of St. Louis, provides that all...