University City, to Use of Schulz v. Amos
| Decision Date | 02 December 1941 |
| Citation | 156 S.W.2d 65,236 Mo.App. 428 |
| Parties | CITY OF UNIVERSITY CITY TO THE USE OF G. B. SCHULZ, APPELLANT, v. JAMES H. AMOS, FRED A. GISSLER, AND FRED L. WILLIAMS, TRUSTEES OF UNIVERSITY HEIGHTS SUBDIVISION IN THE CITY OF UNIVERSITY CITY, MISSOURI, RESPONDENTS |
| Court | Missouri Court of Appeals |
Motion for Rehearing Overruled December 16, 1941.
Petition for Writ of Certiorari Denied March 10, 1942.
Appeal from Circuit Court of St. Louis County.--Hon. John J. Wolfe Judge.
AFFIRMED.
Judgment affirmed.
George C. MacKay and James R. Anderson for respondents.
(1) City of Sedalia v. Gallie, 49 Mo.App. 392; City of Westport v. Mastin, 62 Mo.App. 647; Barrie v Richmond Cemetery, 221 Mo.App. 708, 285 S.W. 130; Heman Const. Co. v. Loevy, 64 Mo.App. 430; Metropolitan St. Ry. Co. v. Adams Ex. Co., 145 Mo.App. 371; Iroquois Mfg. Co. v. Milling Co., 179 Mo.App. 87; Newton County F. Fg. Exch. v. K. C. Ry Co., 326 Mo. 617, 31 S.W.2d 803; Kefferstein v. Knox, 56 Mo. 186; Stumpe v. City of Washington, 54 S.W.2d 731; 44 C. J., p. 684; 47 C. J., p. 66, p. 172. (2) The tax bill was defective for failure to properly describe the property involved. John Hill Const. Co. v. Goldsmith, 237 S.W. 860; Brown v. Walker, 11 Mo.App. 226. (3) The purported amendment of the tax bill by resolution was ineffectual to cure defects. Sec. 7047, R. S. Mo. 1929; 8 Mo. Stat. Ann., p. 5765; City of Westport v. Mastin, 62 Mo.App. 647; Hisey v. City of Charleston, 62 Mo.App. 381; 2 McQuillan, Municipal Corp., sec. 867; 2 Dillon, Municipal Corp., sec. 572. (4) There is a fatal defect of necessary parties defendant because the various lot owners entitled to use Trinity Avenue whose rights are materially affected have not been joined as defendants. Sec. 702, R. S. Mo. 1929 (2 Mo. Stat. Ann., p. 913); 21 C. J., p. 258. (5) Sec. 7053, R. S. Mo. 1929; State ex rel. v. Chillicothe, 237 Mo. 486, 141 S.W. 602; Blackwell v. Lee's Summit, 32 S.W.2d 62. (6) Norwood v. Baker, 172 U.S. 269, 19 S.Ct. 187; Gast Realty & Inv. Co. v. Schneider Granite Co., 240 U.S. 55, 36 S.Ct. 401; Parker-Washington Co. v. Dodd, 305 Mo. 171, 264 S.W. 651; Hesse-Rix Co. v. Krug, 319 Mo. 880, 6 S.W.2d 570; Commerce Trust Co. v. Blakeley, 274 Mo. 52, 202 S.W. 402; Wetterau v. Farmers etc., Co., 285 Mo. 555, 226 S.W. 941; Johnson v. Rudolph, 16 F.2d 525; Dougherty v. American S. & T. Co., 40 F.2d 814; Taliaferro et al. v. Railway Terminal Warehouse Co., 43 F.2d 271; Carolina & N.W. Ry. Co. v. City of Plover, 46 F.2d 495; Crosby v. Dodge, 46 F.2d 727; Crosby v. Moebs, 57 F.2d 408; Reichalderfer et al. v. Hechinger, 57 F.2d 943; Iowa Pipe & Tile Co. v. Callanan, 135 Iowa 358, 101 N.W. 141; City of Commerce v. Southern Railway Co., 35 F.2d 331; In re Chicago, R. I. & P. Ry., 28 F.2d 56; Kansas City Southern R. R. v. Ogden Levee Dist., 15 F. 637; Road Imp. Dist. No. 1 v. Mo. P., 2 F.2d 340; White v. City of Tacoma, 109 F. 32; Kinston v. Woolen, 150 N.C. 295, 63 S.E. 1061; 44 C. J., p. 662; 12 C. J., p. 1258; 16 C. J. S., p. 1396.
L. L. Bowman and John I. Sample for appellant.
(1) The burden of proof is on the party attacking the tax bill to show its invalidity. City of Rolla to use of Schulz v. Studley, 120 S.W.2d 185; Doemker v. City of Richmond Heights, 322 Mo. 1024, 18 S.W.2d 394; Delmar Investment v. Lewis, 271 Mo. 317, 196 S.W. 1137, (2) Sec. 7057, R. S. Mo. 1929; City of Rolla to use of Schulz v. Studley, 120 S.W.2d 185; City of Marshfield ex rel. Hosten v. Brown, 99 S.W.2d 485; Doemker v. City of Richmond Heights, 322 Mo. 1024, 18 S.W.2d 394; Delmar Investment Co. v. Lewis, 271 Mo. 317, 196 S.W. 1137. (3) Barber Asphalt Pav. Co. v. French, 158 Mo. 534. This case was affirmed in 181 U.S. 324; Ross v. Gates, 183 Mo. 338, 347; City of St. Louis v. Nicolai, 13 S.W.2d 36; Mo. Real Est. & Loan Co. v. Curd, 324 Mo. 539, 543; City of Marshfield ex rel. v. Brown, 88 S.W.2d 339; St. Charles ex rel. v. Deemar, 174 Mo. 122, 124. (4) City of St. Louis v. DeNone, 44 Mo. 136; City of St. Joseph v. Forsee, 110 Mo.App. 127; McCormick v. Clopton, 150 Mo.App. 129; 39 Cyc., p. 454; Sec. 3103, R. S. Mo. 1929; Bircher v. Sheet Metal Co., 77 Mo. 509, 514. (5) Likes v. City of Rolla, 190 Mo.App. 140; City of Rockport v. McMichael, 221 Mo.App. 917. (6) Webb City v. Aylor, 163 Mo.App. 155; State ex rel. P. Co. v. St. Louis, 183 Mo. 230; City of Carthage v. Gordon, 217 Mo. 103; State v. Kansas City, 233 Mo. 163; State v. Anderson, 101 S.W.2d 530, 535. (7) Collier Estate v. Western Pav. Co., 180 Mo. 362, 387-388; Barber v. Henderson, 156 Mo. 566, 573; Crowl v. Crowl, 195 Mo. 338, 347; Spicer v. Spicer, 249 Mo. 582, 596; Hynds v. Hynds, 274 Mo. 123, 132; Mo. Lumber Mining Co. v. Jewell, 200 Mo. 707; Oaks v. Marcey, 10 Pick. (Mass.) 195; Britten v. School District, 328 Mo. 1185; Mulik v. Jarganian, 37 S.W.2d 963, 964, 965. (8) Ruecking Construction Co. v. Withnell, 269 Mo. 546, this case was affirmed in 249 U.S. 63; White v. City of Tacoma, 109 F. 32 (c. c.); Johnson v. Rudolph, 16 F.2d 525; Nichols v. Kansas City, 291 Mo. 690; Koch v. Wright, 282 S.W. 751, 752. (9) West v. Burke, 286 Mo. 358; Meek v. City of Chillicothe, 237 Mo. 486; Pope v. Rich, 316 Mo. 1206, 1213; Kerrison, Assignee, v. Stewart et al., 93 U.S. 155, 160; Mercantile Trust Co. v. Schlafly, 299 F. Rep. 203.
This is an action on a special tax bill for public improvement issued by University City against Trinity Avenue, a private street in University Heights Subdivision of said city. Plaintiff Schulz is the assignee of the special tax bill. Defendants, as trustees of University Heights Subdivision, have title to said private street. The trial resulted in a judgment for defendants and plaintiff appeals.
The case went to the Supreme Court on the theory that a constitutional question was involved. That court, having found no constitutional question involved, transferred the case here. [See City of University City v. Amos (Mo.), 141 S.W.2d 777.]
University Heights Realty and Development Company owned 84.81 acres of land. It subdivided the land into blocks and lots. In doing so it provided for the subdivision only private streets, among them Trinity Avenue. It named the development University Heights Subdivision, and recorded a plat of the same in the office of the Recorder of Deeds.
Under a declaration of trust executed by the owners of the land at the time the subdivision was platted, the three defendant trustees have title to the private streets. The declaration of trust sets forth the duties of the trustees with reference to said streets, and among other things requires them to pay all general and special taxes levied against the private streets, and, under a frontage rule, assess the cost of said items as a lien against the lots of the subdivision.
Trinity Avenue, the private street under consideration, meanders southward through the subdivision to Delmar Boulevard, a public street, and the southern boundary of the subdivision. The special tax bill was issued under the "front foot" rule against Trinity Avenue as its part of the cost of repaving Delmar Boulevard. Trinity Avenue is fifty feet in width. However, at a point near the intersection of Trinity Avenue and Delmar Boulevard, Trinity Avenue widens by curving to the east, which gives it a frontage of 183.29 feet on Delmar Boulevard. "As a result of the curve, the depth of Trinity Avenue at the intersection varies 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, whereas the depth of the lots along the north side of Delmar Boulevard average two hundred feet." [See City of University City v. Amos (Mo.), 141 S.W.2d 777.]
Plaintiff urges here that the special tax bill sued on is prima facie evidence entitling him to a judgment against the property described in the bill, whereas defendants contend that the description in the bill of the property affected is fatally defective. The bill was issued pursuant to an ordinance, describing the property and the frontage, as follows: "Trinity Avenue, a private street, frontage 183.29." The property and frontage is described in the bill as issued as follows: "Trinity Avenue, a private street, north of Delmar Block 5 Subdivision said ground having an aggregate front of 183.29 feet, on the north side of said improvement by a depth of feet, bounded: North by , east by Block 4, South by Delmar Boulevard and West by Lot 1." Five years after its issuance, the bill, pursuant to a resolution of the Board of Aldermen, was amended as evidenced by an endorsement on the reverse side of the bill, describing the property and frontage, as follows: "Trinity Avenue, a private street of University Heights Subdivision, said ground having an aggregate front of 183.29 feet on the north side of said improvement." Lot 1 is in block 5. It extends north from Delmar Boulevard. Its east line runs northwesterly along the west side of Trinity Avenue 158.92 feet. Block 4 extends north from Delmar Boulevard a distance of approximately 600 feet to Cornell Avenue. Its greatest width is approximately 300 feet. Its east boundary is a straight line along Harvard Avenue. Its west boundary is a convex line along Trinity Avenue. It has a frontage on Delmar of 36.52 feet. It is not divided into lots. It belongs to the city. It is the site of the City Hall. The east part of Lot 1 also belongs to the city, which maintains a parkway on it.
The amount of the cost of the improvement charged against Block 4 is $ 272.64. The amount charged against Trinity Avenue is $ 1368.34.
University City is a city of the fourth class.
Section 7051, Revised Statutes 1929, Missouri Statutes Annotated,...
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