Weber v. Schergens

• Decision Date: 31 March 1875
• Citation: 59 Mo. 389
• Parties: JOSEPH WEBER, Plaintiff in Error, v. GOTTFRIED SCHERGENS, et al., Defendants in Error.
• Court: Missouri Supreme Court

59 Mo. 389

JOSEPH WEBER, Plaintiff in Error,

v.GOTTFRIED SCHERGENS, et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1875.

Error to St. Louis Circuit Court.

Thos. Grace, for Plaintiff in Error, cited Kiley vs. Cranor, 51 Mo., 541; Doughty vs. Hope, 3 Den., 249; Alvord vs. Collin, 20 Pick., 426; Paillet vs. Youngs, N. Y. Sup. Ct., 4 Sand., 57; In the matter of William and Anthony Sts., 19 Wend., 688-9; City of St. Louis vs. DeNoue, 44 Mo. 137; City of St. Louis vs. Bernoudy, 43 Mo., 552.

F. & L. Gottschalk, for Defendants in Error, cited Kefferstein vs. Knox, 56 Mo., 186; City to use McGrath vs. Clemens, 49 Mo., 552; Neenan vs. Smith, 50 Mo., 525; City to use, etc. vs. Clemens, 52 Mo., 133; Strassheim vs. Jerman, 56 Mo., 104.)

VORIES, Judge, delivered the opinion of the court.

This action was brought to recover the amount of a special tax bill, assessed against the property of defendants, for the cost of curbing, guttering, macadamizing and paving the cross walks and side walks of Bremen Avenue, from Fourteenth Street to Kossuth Avenue, in the city of St. Louis. The contract of the plaintiff was to do the whole work above set forth.

By the tenth section of the “Act to revise the City Charter of the city of St. Louis,” approved March 13, 1867, the same being the law under which the work sued for in this case was performed, it is provided, that “the cost of paving, macadamizing, guttering cross walks, and curbing of the carriage ways, intersections and side walks of all streets, alleys and other highways, and such portions of wharves as may be provided by ordinance, and the cost of all reconstruction and also the cost of grading and paving all alleys in the city, shall in all cases (except such as shall hereafter be provided for) be paid by the owners of the property in the vicinity of the work, in such manner as shall hereafter be provided; and as may be further provided by ordinance,” etc. It is further provided by the 11th section of the same act, that, “whenever any of the above mentioned work shall have been fully completed under authority of ordinance, the city engineer or other officer having charge of the work, shall compute the cost thereof and assess it as a special tax against the adjoining property fronting upon the work done, and each lot of ground shall also be charged in proportion to the frontage thereof, with the cost of constructing, re-constructing and repairing the intersections of the next adjoining streets, alleys or other public highways, in such manner as said officer shall deem just and equitable. The officer is then required to make out a certified bill of such assessment against each lot chargeable with the work done in the name of the owner thereof,” etc.

It is shown by the evidence in this case, that the whole work contracted for was fully completed in a satisfactory manner; that the work was constructed and estimated for by the engineer in sections or blocks; that the first section or block was completed on the 7th of September, 1868, and tax bills issued for the same on the 8th of September, 1868; that the 2nd section or block completed was Bremen Avenue, from 16th to 19th streets, which included the property upon which the tax is assessed now in controversy; that this was completed on the 13th day of July, 1869, and the price assessed on the adjoining property, and tax bills issued on the 23rd of July, 1869; that the remaining part of said work included in the contract was completed and assessments made therefor Oct. 22nd, 1869, more than a year before the commencemen of this suit.

The assessment for this work seems to have been made by blocks consisting of the portion of the street improved which lies between two other streets crossing the street improved. This was done by charging the owner of the property the proportion which his property bears to the cost of the whole work in the block in which his property is situated, and not in proportion to the cost of the whole of the work mentioned in the contract.

The tax bill sued on was made out against Jacob W. Kurtzebom, as the owner of the property against which the assessment was made, and it was admitted that he had been dead at least two years before the assessment was made; that said Jacob had devised the property to his wife, Henrietta, who afterwards named her co-defendant, Gottfried Schergens.

At the close of the evidence the plaintiff asked the court to declare the law to be as follows: “The court declares the law to be, that if at the time of the bringing of this suit, the whole work centemplated by ordinances Nos. 6216 and 6219 given in evidence, had been fully completed under the authority of said ordinances, and according to the provisions of said ordinances, and according to the terms of the contract read in evidence, and if the amount of work done upon the property mentioned in the pleading and tax bill read in evidence, was charged against said property in the...