Schwab v. City of St. Louis

• Decision Date: 01 July 1925
• Docket Number: No. 25009.,25009.
• Citation: 274 S.W. 1058
• Parties: SCHWAB v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

274 S.W. 1058

SCHWAB v. CITY OF ST. LOUIS.

No. 25009.

Supreme Court of Missouri, Division No. 1,

July 1, 1925.

Rehearing Denied July 30, 1925.

Motion to Transfer to Court in Banc Overruled July 30, 1925.

Error to St. Louis Circuit Court; Frank Landwehr, Judge.

Suit by Fred W. Schwab against the City of St. Louis. Judgment for defendant, and plaintiff brings error. Affirmed.

L. M. Hall, of St. Louis, for plaintiff in error.

Oliver Senti, City Counselor, and Daniel Bartlett, Associate City Counselor, both of St. Louis, for defendant in error.

SEDDON, C.

Writ of error to review the final judgment of the circuit court of the city of St. Louis, sustaining defendant city's demurrer to plaintiff's second amended petition and discharging defendant without day, with costs of suit, plaintiff having declined to plead further.

Plaintiff's second amended petition is a bill in equity, cast in two counts, to remove alleged clouds on plaintiff's title to certain city lots within the city of St. Louis. The salient facts pleaded are that plaintiff is the owner in fee simple and in actual possession of the several lots described in the petition, having acquired title thereto by purchase at public sale for valuable consideration, on February 27, 1922; that on February 17, 1916, in said St. Louis circuit court, the city of St. Louis in a certain condemnation suit or proceeding, wherein one Benjamin Biel, the then owner of said lots, was a defendant, was awarded certain separate judgments for benefits against the said Biel, as the owner of the several lots, which judgments were declared to be special liens upon said several lots, and are recorded in Condemnation Record No. 7, at page 446 and following, of the records of said circuit court. In the second count of the petition, plaintiff alleges another record of similar judgments for condemnation benefits in favor of the city of St. Louis against the same party defendant and against the same lots, made and entered on October 10, 1916, which judgments were likewise declared to be special liens against said several lots, and are recorded in Condemnation Record No. 8, at page 99 of the records of said circuit court. Plaintiff alleges that said benefit judgments were either final judgments, upon which executions might issue for the collection of the sums so found clue, or ministerial acts fixing the amounts of the assessments or tax to be otherwise collected, as might be provided by law, and as such were a tax only. Plaintiff also alleges that "no execution has ever been issued to enforce or collect said judgments, nor have any other steps been taken by defendant city to enforce or collect the same. Plaintiff further states that by reason of the provision of section 1556, Revised Statutes of Missouri 1919, the liens of said judgments expired before February 27, 1922, the date when plaintiff acquired title; that section 8 of article 21 of the Charter of the city of St. Louis, as adopted in 1914, and in force at the time of the rendition of said judgments for benefits, provides that judgments for benefits, in such condemnation proceedings shall be a lien on the properties so charged for 10 years from the entry of such judgments, and that said charter provision is invalid and void; that if said judgments were ministerial acts only and amounted to the levy of an assessment or tax to be collected by ordinary process of law, then the collection of such tax is barred by reason of the provisions of section 12951, Revised Statutes of Missouri, 1919. The petition also charges that the city of St. Louis, by virtue of said charter provision, claims that said judgments are valid and existing liens against plaintiff's several lots, and wrongfully threatens to cause execution to issue thereon and public sale thereof to be made to satisfy said judgments or to otherwise undertake to collect the same, by reason whereof a cloud is cast on plaintiff's title and he is prevented from the lawful use and disposition thereof; that, should defendant endeavor to so enforce said judgments, plaintiff will be put to great trouble and expense to protect his title, and that plaintiff is without adequate remedy at law; wherefore, he prays for a finding and decree of the court that the liens of said judgments no longer exist, that title to said lots be vested in plaintiff free and clear of said pretended liens, and for all proper relief.

Defendant's demurrer is general, averring that the petition does not state facts sufficient to constitute a cause of action against defendant, and that it appears by plaintiff's own showing that he is not entitled to the relief prayed.

Upon sustaining defendant's demurrer to the petition, the trial chancellor filed a memorandum stating the reason for his action, thus:

"It is the opinion of the court that the remedy sought by plaintiff in a direct proceeding will not lie. It would be different in a case of this kind were the city of St. Louis to attempt to execute. The plaintiff might then make his attack accordingly, but, until such time as the property is threatened, an action of this kind by plaintiff cannot be maintained."

I. Defendant in error at the outset insists that, because of the repugnant allegations of plaintiff's petition or bill, a court of equity has no jurisdiction to entertain the bill. It is argued that plaintiff's bill seeks to remove alleged clouds on the title to real estate, cast thereon by reason of certain apparent liens imposed by section 8. article 21, of the St. Louis Charter, but which charter provision plaintiff alleges to be unconstitutional and void for the reason that it is not in harmony with, and subject to, the Constitution and general laws of this state; that an unconstitutional charter provision is void and of no effect, and a lien pretended to be based thereon is no lien at all. Hence, it is argued that, inasmuch as all courts of the state must take judicial notice of the St. Louis Charter (Missouri Constitution, article 9, § 21), if there is a fatal lack of harmony between the Constitution and general laws of the state and the charter provision, then that fact appears to the court without the necessity of proof aliunde, and there is no cloud upon plaintiff's title calling for the interference of a court of equity. In other words, if the pretended liens are void because the charter provision fixing their duration is contrary to and not in harmony with the Constitution and general laws of the state, then they are void on the face of the record, and a void lien casts no cloud on plaintiff's title. In such case, it is argued that plaintiff has a plain, adequate, and complete remedy at law and a court of equity has no jurisdiction. Defendant in error bottoms its contention upon what was said by Judge Sherwood in his dissenting opinion in Verdin v. St. Louis, 131 Mo. loc. cit. 103 et seq., 33 S. W. 480, 36 S. W. 52; and also upon Turner v. Hunter, 225 Mo. 71, 123 S. W. 1097.

Opposing the foregoing contention, plaintiff in error relies upon the so-called "legal acumen". doctrine, early announced by this court in Merchants' Bank v. Evans, 51 Mo. 335, and subsequently followed in the majority opinion in Verdin v. St. Louis, 131 Mo. 26, 33 S. W. 480, 36 S. W. 52; Jewett v. Boardman, 181 Mo. loc. cit. 657, 81 S. W. 186; Pocoke v. Peterson, 256 Mo. loc. cit. 518, 165 S. W. 1017; Maxwell v. Growney, 279 Mo. 113, 213 S. W. loc. cit. 429; and in the late case of Mahen v. Ruhr, 293 Mo. loc. cit. 506, 240 S. W. 164. So it would appear from the foregoing decisions that that doctrine is fairly well established in the jurisprudence of this state. The doctrine announced by those cases is that, if the defect or invalidity is such as to require legal acumen to discover it, whether it appears upon the face of the record or proceedings, or is to be proven aliunde, then the powers or jurisdiction of a court of equity may be invoked to remove the cloud. We believe that the question here raised by plaintiff's petition, which goes to the validity of the liens of the benefit judgments or assessments, now affecting plaintiff's title and makes necessary a judicial determination of the validity and constitutionality of the provision of the St. Louis charter, fixing the length and duration of such liens, clearly brings plaintiff within the rule announced, for legal acumen is required to discover their validity or invalidity, as the case may be, even though such matter appears upon the record of the proceedings. Indeed, learned counsel for the respective parties to this action appear to be as far apart as the poles in their own respective conclusions upon the question involved.

Furthermore, as said in 16 Cyc. 41:

"The existence of a remedy at law does not deprive equity of jurisdiction, unless such remedy be adequate. By this is meant that it must be clear, complete, and `as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.'"

In Pocoke v. Peterson, 256 Mo. loc. cit. 519. 165 S. W. 1022, we said:

"Moreover, to oust jurisdiction in equity the remedy at law must be so complete that it attains the full end and justice of the case, reaching the whole mischief and securing the whole right of the party in a perfect manner at the present time and in the future. Hanson v. Neal, 215 Mo. loc. cit. 279 et seq. ."

Must plaintiff sit idly by with folded hands and wait several years until the defendant city shall undertake to levy executions upon his property with the purpose of selling it at judicial sale and then, and not till then, by motion to quash the executions, or by other remedy at law, raise the question of the validity of the benefit assessment liens? Surely, no. The liens are apparent upon the public records and, until their validity and effect is judicially determined, they necessarily hinder the plaintiff in the free and unrestricted use and disposition of his property, thereby casting a cloud upon his...