State v. Fogerty
| Decision Date | 02 July 1946 |
| Docket Number | No. 26918.,26918. |
| Citation | 195 S.W.2d 908 |
| Parties | STATE ex rel. SCHULZ v. FOGERTY, Mayor, et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County; Raymond E. LaDriere, Judge.
"Not to be reported in State Reports."
Mandamus suit by the State of Missouri, on the relation of G. B. Schulz, against Matt C. Fogerty, Mayor of the City of University City, and others, to compel the mayor and others to issue a new special tax bill to the relator. Judgment for relator, and the mayor and others appeal.
Reversed.
Marvin E. Boisseau and George C. Mackay, both of St. Louis, for appellants.
L. L. Bowman and John I. Sample, both of Cape Girardeau, for respondent.
SUTTON, Commissioner.
This is a mandamus suit, brought by relator against the mayor, the members of the board of aldermen, and the clerk, of University City. The suit was commenced on September 25, 1943, in the Circuit Court of St. Louis County.
The relator, in his petition, alleges that, on July 18, 1931, a special tax bill for $1,368.34, bearing eight per cent interest, was issued by the mayor, the board of aldermen, and the clerk, of University City, against Trinity Avenue, a privately owned street, for its share of the cost of the improvement and reconstruction of Delmar Boulevard in University City, and that relator became and still is the owner and holder of said special tax bill; that relator as owner of said special tax bill made an attempt to collect the amount due thereon, but that the owners of Trinity Avenue refused to pay the amount due thereon; that relator filed suit against the owners of Trinity Avenue and failed to get judgment for the enforcement of said tax bill; that an appeal was taken by relator to the Supreme Court; that said court held that it was without jurisdiction, and ordered the cause transferred to the St. Louis Court of Appeals; that said St. Louis Court of Appeals made a final decision against relator on December 2, 1941, holding that said special tax bill was invalid for the want of a proper description of the piece of ground lawfully chargeable with the cost of the improvement; that on January 5, 1943, relator requested and demanded of the officers of University City that they pass a new ordinance making a new assessment or reassessment and issue a new special tax bill against the part of Trinity Avenue legally liable for said improvement with a correct and proper description of said piece of ground that is legally liable for a special assessment and tax bill as specified in the decision of the St. Louis Court of Appeals, and that this be done in accordance with, and as provided for, by sections 7379, 7380, 7381, 7382, 7383, 7384, and 7386, R.S. Mo.1939, Mo.R.S.A., before the expiration of two years from December 2, 1941, when the original special tax bill was by the St. Louis Court of Appeals adjudged to be invalid; and that said officers refused to comply with said request and demand. And relator prays the court to issue against said officers an alternative writ of mandamus, and, upon a full hearing of all matters and things in issue, to make said writ absolute and command said officers to comply with the requirements of sections 7379, 7380, 7381, 7382, 7383, 7384, and 7386, R.S.Mo. 1939, Mo.R.S.A., and thus by ordinance make a new assessment or reassessment and issue to relator a new special tax bill for $1,368.34, bearing eight per cent interest, against the proper piece of ground correctly described of said Trinity Avenue.
On October 8, 1943, an alternative writ of mandamus was issued in accordance with the prayer of the petition. A return to the alternative writ was duly filed. On November 2, 1944, the cause was tried and taken under advisement. On February 26, 1945, the court entered judgment in favor of relator, whereby the court adjudged that a peremptory writ of mandamus be issued to said officers, directing and commanding that they comply with the law and in accordance therewith by ordinance make a new assessment or reassessment and issue a new special tax bill to relator for $1,368.34, with eight per cent interest, from thirty days after July 18, 1931, in lieu of the said void tax bill issued on July 18, 1931, and that said new special tax bill be issued against the piece of ground legally liable for said improvement, which shall be described in said new tax bill in accordance with the description of said piece of ground as described by the St. Louis Court of Appeals in its opinion and decision in the case of University City to use of Schulz v. Amos, 236 Mo.App. 428, 156 S.W.2d 65, loc. cit. 67, as follows: "The `piece of ground' abutting on Delmar Boulevard and lawfully chargeable with the cost of the improvement, has a frontage on Delmar Boulevard of 183.29 feet and a depth varying from nothing at the east point connection of Trinity Avenue with Delmar Boulevard to sixty feet more or less at the west side connection of Trinity Avenue with Delmar Boulevard."
From this judgment the officers have appealed here.
Section 7379, R.S.Mo.1939, Mo.R.S.A. § 7379, is as follows:
"In all cases wherein a city of this state of whatever class, or having a special charter, has caused to be constructed or reconstructed, any sewer, boulevard, street, alley, sidewalk or other local improvement, and to pay the cost of such improvement has levied a special assessment against private property and issued special tax bills pursuant thereto, and such assessment, or any part thereof, or such special tax bills, or any thereof, have been, or shall be, adjudged invalid and unenforceable either in whole or in part by the final judgment of any appellate court of competent jurisdiction for any reason other than the failure of the contractor who has done the work to fully comply with his contract, such city may, by ordinance duly enacted, make a new assessment or reassessment upon all land benefited by such improvement, and in so doing may, if necessary, create a new assessment district and define its boundaries: Provided, where the proceedings preliminary to the making of an improvement have been commenced prior to the approval of this law, no land shall be included in such new assessment district that was not included in the original district attempted to be formed, and no land shall be assessed at a higher rate in such new assessment than it was in the original assessment."
Section 7380 is as follows:
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