Bambrick Brothers Construction Co.v. Semple Place Realty Co.
| Decision Date | 30 March 1917 |
| Citation | 193 S.W. 543,270 Mo. 450 |
| Parties | BAMBRICK BROTHERS CONSTRUCTION COMPANY v. SEMPLE PLACE REALTY COMPANY; J. DENNISON LYON, Trustee, et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.
Affirmed (conditionally).
C. R Skinker for appellants.
(1) The trial court erred in rendering judgment for plaintiff on the bills, and overruling appellants' motions for new trial because the city had no power to assess according to the Semple Place plat, and to divide the land according thereto, for the reasons: (a) The definition of "lot" in section 14 of article 6 of the charter applies to "lot" in section 22 of the same article. Powell v. Sherwood, 162 Mo. 614; Dixon v. Caudill, 143 Ky. 623; State v. Allison, 155 Mo. 330; United States v. Miller, 208 U.S. 37; Plummer v. United States, 224 U.S. 137; Railroad v. United States, 208 U.S. 452; Crossan v. City, 80 N.J.L. 511; Snyder v. Compton, 87 Texas, 379; Parshall v. State, 138 S.W. 765; Rains v. Stone, 123 P. 871; In re Kohler, 79 Cal. 313. They are parts of one system of law in pari materia. Sales v. Paving Co., 166 Mo. 671; State ex rel. v. Patterson, 207 Mo. 145; State ex rel. v. Gordon, 261 Mo. 646. (b) The tax bills divided the land according to the Semple Place plat, which had many years before been nullified by sale under deed of trust, a matter of public record long prior to the initiation of the sewer project. McShane v. Moberly, 79 Mo. 43; Paving Company v. McManus, 244 Mo. 184. (c) Such division was without legal authority and the bills are therefore void. St. Louis Charter, sec. 14, art. 6; Cooley, Con. Lim. (3 Ed.), p. 738; Upton v. People, 176 Ill. 632; People v. Clifford, 166 Ill. 165; People v. Railroad, 96 Ill. 372. (d) The power of the city to assess is measured by the mode granted by said section 14, but the power actually exercised was not granted and is ultra vires and the whole proceeding is void. Ruggles v. Collier, 43 Mo. 377; Verdin v. St. Louis, 131 Mo. 97; Zottman v. San Francisco, 20 Cal. 96; St. Louis v. Clemens, 43 Mo. 404; Kiley v. Oppenheimer, 55 Mo. 374; Leach v. Cargill, 60 Mo. 316; Trenton v. Coyle, 107 Mo. 193; Nevada v. Eddy, 123 Mo. 558; Perkinson v. Hoolan, 182 Mo. 189; Whitworth v. Webb City, 204 Mo. 601; Albers v. St. Louis, 188 S.W. 83. (e) The enforcement of the bills by the judgments according to the Semple Place plat violates section 30 of article 2 of Missouri Constitution. Chicago v. Wells, 236 Ill. 130; St. Louis v. Hill, 116 Mo. 527. And the Fourteenth Amendment to the Federal Constitution, since both charter and ordinance following it are State laws. Waterworks v. Refining Co., 125 U.S. 31; Gast Co. v. Schneider Co., 240 U.S. 55. (2) The judgments below were further erroneous because in defiance of Secs. 9848 and 9849, R. S. 1909, which is (a) not a special law within the prohibition of section 53 of article 4, Missouri Constitution. State ex inf. v. Southern, 265 Mo. 286; State ex rel. v. Speed, 183 Mo. 201; Board v. St. Louis, 267 Mo. 366; State ex rel. v. Mason, 153 Mo. 35; State ex rel. v. Mason, 155 Mo. 502. (b) And is not directory, but mandatory by phraseology. Cooley, Taxation (3 Ed.), p. 479; Stayton v. Hulings, 7 Ind. 144. (c) Mandatory, because for the protection of the land owner. Cooley, Taxation (3 Ed.), pp. 480, 484; Leslie v. St. Louis, 47 Mo. 477; St. Louis v. Glasgow, 254 Mo. 277; Leavitt v. Eastman, 77 Me. 120; In re Bledsoe Hill, 200 Mo. 643. The statutory requirement of additional notice to process does not invalidate the act. In re Powers, 29 Mich. 504; Davis v. Sawyer, 66 N.H. 34; Tinslar v. Davis, 12 Allen, 79; Coulter v. Stafford, 56 F. 565; Oulahan v. Sweeney, 79 Cal. 537; Grant v. Berrisford, 94 Minn. 49; Surety Co. v. Architectural Co., 226 U.S. 281; Henley v. Myers, 215 U.S. 273. The analogous statute, Sec. 8231, R. S. 1909, prescribing recording of notice of intention to file a mechanic's lien against a non-resident owner within a time certain, requires exact obedience as to time. Schubert v. Crowley, 33 Mo. 564. So does the analogous Sec. 9111, R. S. 1909, prescribing notice of injury and claim against certain municipalities. Lyon v. St. Joseph, 112 Mo.App. 681; Reno v. St. Joseph, 169 Mo. 642. The presumption of payment and extinguishment of the lien raised by the act is conclusive and not rebuttable by evidence. Wilson v. Iseminger, 185 U.S. 55; Waterworks v. Oshkosh, 187 U.S. 444. The law may extinguish the claim as the result of failure to give the notice as prescribed by statute. Champion v. Ames, 188 U.S. 358; Frisbie v. United States, 137 U.S. 166; Karnes v. Insurance Co., 144 Mo. 417. No other time than that prescribed by the act can suffice. Anderson v. Pemberton, 89 Mo. 64; Mears v. Spokane, 22 Wash. 323. (3) The trial court further erred in sustaining the attachments after appearance and answer of appellants to the merits, plaintiff having given no bond and the sole ground of attachment being non-residence. Sec. 2298, R. S. 1909. And in taxing costs thereof against appellants. Secs. 2298, 2335, R. S. 1909; Hill v. Bell, 111 Mo. 41; Tootle v. Lysaght, 65 Mo.App. 145. Costs are never visited upon a party unless the statute strictly construed in his favor makes him liable therefor. Shed v. Railroad, 67 Mo. 690; State ex rel. v. Gordon, 245 Mo. 28.
T. J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe for respondent.
(1) The defense set up in answer that plaintiff did not comply with the provisions of the act entitled "An Act for the giving of notice of suit on special tax bills in cities of 300,000 or more and limiting the lien of special tax bills" (Laws 1909, p. 704; Secs. 9848-9849, R. S. 1909) is without merit because; (a) the act is unconstitutional, being special legislation; (b) the first section of the act is merely directory, and the plaintiff can at any time before final judgment is entered in the cause file the notice, required by said section, with comptroller; and (c) the suits mentioned and described in the petition herein were not commenced in any city -- they were commenced in the circuit court of the city of St. Louis. No suit can be commenced in a city; it must be commenced in a court. Art. 4, sec. 53, subdiv. 17, Constitution. (2) The finding of facts by the trial court in favor of the plaintiff are conclusive and this court will not review the facts so found by the trial court. Fruin v. Meredith, 144 Mo.App. 586. (3) The parcels of property can be identified by the description contained in the several tax bills; therefore, the special tax bills are valid and the judgment should be sustained. Const. Co. v. Levy, 64 Mo.App. 430; Adkins v. Quest, 79 Mo.App. 36; St. Louis v. Calhoun, 222 Mo. 54; St. Louis v. Koch, 169 Mo. 587.
I. Plaintiff, the Bambrick Brothers Construction Company, a corporation, instituted twenty-one separate actions to enforce the lien of as many special tax bills against separate parcels of land in St. Louis owned by the various defendants, said tax bills covering the cost of the construction of the second section of the South Harlem Joint District Sewer. The petition in each case was similar in form, the variance being the parties defendant and the description of the parcels of land against which the tax bills were issued.
The petition pleaded the passage of an ordinance by the city of St. Louis to establish a sewer district to be known as the South Harlem Joint Sewer District; that said district was established and an ordinance passed for the construction of the second section of said Joint District Sewer; that provision was made for the payment of the city's portion of the cost of same; that plaintiff entered into a contract with the city in accordance with the charter and ordinance; that upon the completion of the work, the President of the Board of Public Improvements computed the cost and assessed the same as a special tax upon all the property in the South Harlem District and special tax bills were made out, registered, countersigned and delivered to plaintiff. The petition then alleged the ownership of the lot, the amount computed, assessed and charged against the lots described, the designation of the Franklin Bank as the depositary to receive payment; delivery of notice of the tax bill to the City Marshal, the return on the tax bill that the persons named could not be found, and prayed judgment for the amount of the special tax bill and that same be adjudged a lien on each particular parcel of land and that same be sold to pay the amount of the special tax and costs.
The answer in nineteen of the suits, besides a general denial, averred that plaintiff did not file with the comptroller of St. Louis a written notice of the filing of the suits, and in certain of the suits it was averred that certain proceedings were still pending on behalf of the city of St. Louis for the condemnation of specified streets.
Plaintiff's reply was a general denial and a denial of the new matter of the various answers.
By agreement all of the suits were tried together in Division No. 8 of the circuit court of the city of St. Louis.
The court rendered final judgment in each of said cases in favor of the plaintiff and against the various defendants and declared each of said special tax bills a lien upon the particular parcel of land described therein, together with interest and costs and ordered that the land be sold to pay the same. The defendants appealed. Seven of these appeals are comprised in this record; three are comprised in our Docket No. 18472 and eleven in No. 18473.
II. There is no question that the work done by the contractors in this case has gone into the betterment of the property...
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