Gast Realty & Investment Company v. Schneider
| Citation | 246 S.W. 177,296 Mo. 687 |
| Decision Date | 30 December 1922 |
| Docket Number | 23101,23107,23134 |
| Parties | GAST REALTY & INVESTMENT COMPANY v. SOPHIA SCHNEIDER, Appellant -- No. 23101. INDEPENDENT BREWING COMPANY v. SOPHIA SCHNEIDER, Appellant -- No. 23107. SOPHIA SCHNEIDER, Appellant, v. GAST REALTY & INVESTMENT COMPANY -- No. 23134 |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. John W. Calhoun Judge.
Affirmed.
Rodgers & Koerner and Anderson, Gilbert & Wolfort for appellant.
(1) Special assessments for local improvements are a form of taxation. Construction Co. v. Ice Rink Co., 242 Mo 241, 256. (2) Where property is benefited by a local public improvement, the receipt of this benefit justifies the State in treating this property as a separate and distinct class and taxing it to the extent of the benefit thus received. Construction Co. v. Ice Rink Co., 242 Mo. 241, 256; Construction Co. v. Railroad, 206 Mo. 177; St Louis v. Contracting Co., 202 Mo. 463; Wagner v. Baltimore, 239 U.S. 207; Bacon v. Savannah, 105 Ga. 62. (3) The invalidity for any reason of a special assessment does not release the property from the obligation to pay its proper share of the cost of the improvement. Judson on Taxation (2 Ed.) sec. 415; Norwood v. Baker, 172 U.S. 269, 293; State ex rel. Paving Co. v. St. Louis, 183 Mo. 235; West Chicago Park Commissioners v. Farber, 171 Ill. 146. (4) Statutes authorizing re-assessments where the original assessments have been held invalid are constitutional and valid. Dillon on Municipal Corporations (5 Ed.) sec. 1469. (5) Re-assessment statutes do not violate the due-process-of-law clause of Federal or State Constitution. Spencer v. Merchant, 125 U.S. 345; Wagner v. Baltimore, 239 U.S. 207; Schneider v. Gast Realty Co., 245 U.S. 288; Lombard v. West Chicago Park Commrs., 181 U.S. 33; Dillon on Municipal Corporations (5 Ed.) sec. 1469. (6) Reassessment statutes being merely a tax levied on existing benefits, are not retroactive within a constitutional provision forbidding retroactive legislation. Wagner v. Baltimore, 239 U.S. 207; Drainage District v. Turney, 235 Mo. 80; Bacon v. Savannah, 105 Ga. 62. (7) Statutes that are remedial in character are not restrospective within the constitutional provision. Abbott v. Mining Co., 255 Mo. 378; McManus v. Park, 229 S.W. 213; Wellshear v. Kelley, 69 Mo. 343; 1 Kent's Comm. 455. (8) With regard to improvements made prior to its enactment, the statute here in question applies only to those made under a valid contract and merely provides a means for apportioning the assessment in accordance with actual benefits. It relates purely to matters of remedy and is not retrospective within the meaning of Sec. 15, Art. II, Mo. Constitution, forbidding retrospective legislation. Wagner v. Baltimore, 239 U.S. 207; Norwood v. Baker, 172 U.S. 269; Bacon v. Savannah, 105 Ga. 62; Page & Jones on Taxation by Assessment, sec. 959; Abbott v. Mining Co., 255 Mo. 378; West Chicago Park Commrs. v. Farber, 171 Ill. 146. (9) The legislative determination as to benefits received by plaintiff's property is conclusive. Sec. 8665, R.S. 1919; Nichols v. Kansas City, 237 S.W. 107; West v. Burke, 228 S.W. 775. (10) The Statute of Limitations is no bar to this re-assessment, because: (a) This statute carries its own limitation period (Sec. 8667, R.S. 1919) and by implication repeals any previous repugnant statutes there may have been. Gasconade County v. Gordon, 241 Mo. 569; St. Louis v. Kellman, 235 Mo. 694. (b) The right of action is on the tax bills issued under the re-assessment and did not accrue until these bills were issued. The Statute of Limitations does not begin to run until a right of action exists. State to use v. Heman, 70 Mo. 241. (c) The Statute of Limitations does not run against the State's right to levy a tax. (11) The acceptance by the contractor of the original tax bills did not preclude the city from making a new assessment and issuing new tax bills in lieu of the original bills that could not be collected. State ex rel. Paving Co. v. St. Louis, 183 Mo. 235; State ex rel. v. St. Louis, 211 Mo. 591.
Holland, Rutledge & Lashly for respondent.
(1) A law authorizing a re-assessment of a special tax bill for an area tax by a complete new method of procedure and with an attempted judicial consideration of benefits instead of the old arbitrary method creates a new obligation and is retrospective and invalid and violates the Constitution of Missouri. Constitution, art. 2, sec. 15; Art. 12, sec. 19; City of St. Louis v. Clemens, 52 Mo. 133; State ex rel. v. Redman, 270 Mo. 465. (2) Where a vested right is impaired or taken away or a new obligation created by a statute as to a transaction already passed, the statute is retrospective and void. City of St. Louis v. Clemens, 52 Mo. 133; Ruecking Const. Co. v. Withnell, 269 Mo. 546, 558; Smith v. Dirckx, 283 Mo. 188; Murphy v. Welton, 217 S.W. 620. (3) Even remedial laws are not allowed retrospective operation where they impair vested right. The law in question affects the remedy secondarily only, if at all. Gilsonite Const. Co. v. Greffet, 174 Mo.App. 174, 180; Ruecking v. Withnell, 269 Mo. 546, 558; Hamilton Co. v. Rasche, 19 L. R. A. 584. (4) The mere doing of public work creates no obligation against a property owner to pay therefor until a valid assessment is made under a valid ordinance. City of St. Louis v. Clemens, 52 Mo. 133; Paving Co. v. Munn, 185 Mo. 552; Moberly v. Hassett, 127 Mo.App. 11; Heman v. Parish, 97 Mo.App. 401; State ex rel. v. St. Louis, 211 Mo. 591. (5) The changes made by the new law of 1917, and the ordinance of 1919, are not a part of the remedy, but a vital part of the assessment and tax itself. Cases supra. (6) An obligation to pay for public improvements made under a void ordinance cannot be created even by estoppel. Verdin v. City of St. Louis, 131 Mo. 26, 98; Neill v. Trust Co., 89 Mo.App. 646; McCormick v. Moon, 134 Mo.App. 669; Collier v. Western Paving Co., 180 Mo. 362, 390. (7) Assessments for street improvements are taxes and as such must be laid with strict adherence to the prescribed methods. Jaicks v. Oppenheimer, 264 Mo. 693, 705; Construction Co. v. Ice Rink Co., 242 Mo. 241; Kiley v. Oppenheimer, 55 Mo. 374. Such taxes must not be confused with benefits assessed in drainage and levee districts, which are not taxes, State v. Drainage District, 236 S.W. 848; Morrison v. Morey, 146 Mo. 543; Levee Dist. v. Railroad, 240 Mo. 614, 631. (8) The effort of the Legislature and Board of Aldermen by a retrospective law to re-assess a tax theretofore declared void and to compel payment where this court said there was no liability is a legislative usurpation of judicial power. Baltimore v. Horn, 26 Md. 194; Chicago Co. v. People, 219 Ill. 408; Moser v. White, 29 Mich. 59; People ex rel. v. Owen, 283 Ill. 638; U.S. Constitution, Sec. 1, Amendment XIV; Const. Mo. secs. 20 and 30, art. 2. (9) Under appellant's theory that the original tax bill was not void, but bad only in part because the area tax was unequally spread, the judgment heretofore rendered is res adjudicata. Eyerman v. Scollay, 16 Mo.App. 498; Weber v. Schergens, 28 Mo.App. 587. (10) Under appellant's theory that the very doing of the work created an obligation against respondents, the tax bills are barred by the Statute of Limitations. (a) The right to the tax bill is barred in five years: Moberly v. Hassett, 127 Mo.App. 11; Weber v. Schergens, 28 Mo.App. 587, 592. (b) The tax itself is barred in two years: Granite Bituminous Co. v. Realty Co., 199 Mo.App. 226 240; Eyermann v. Scollay, 16 Mo.App. 498, 502; City of Springfield v. Ransdale, 240 S.W. 867, 870. (11) The same gross inequality exists in the tax bills involved in the first two suits at bar as was condemned in the suits on the former tax bills, because it was held that the property was taxed much farther back than the distance within which the paving could be supposed to be a benefit, and in violation of the Federal Constitution. Gast v. Schneider Granite Co., 240 U.S. 55; Schneider Granite Co. v. Gast, 269 Mo. 561; Commerce Trust Co. v. Keck, 283 Mo. 209.
Causes numbered 23101 and 23107 are actions to cancel certain special tax bills issued by the city of St. Louis for the re-assessment of an area tax levied for the paving of North Broadway in said city. Cause numbered 23134 is an action to enforce similar special tax bills. All of the tax bills concerned were issued pursuant to an act passed by the General Assembly in 1917, Laws 1917, page 391, now Sections 8661 to 8667, inclusive, Revised Statutes 1919. Substantially the same facts being involved in the three cases, they have been briefed and argued together. We shall therefore dispose of them as one.
Adverting to the facts, it appears that on July 24, 1907, an ordinance providing for the improvement of Broadway and the levying of a special tax to pay therefor was passed by the Municipal Assembly of the City of St. Louis, and approved. On October 23, 1907, a contract for the work was entered into between the city and the Schneider Granite Company. In the year 1908 the work was begun and completed in conformity with the ordinance and contract. On January 12, 1909, the street commissioner certified that the work was completed, and, on February 8, 1909, special tax bills for the amount of the contract price were issued to and accepted by the Schneider Granite Company.
The charter of the city, in force at the time the work was done and the tax bills were issued, provided that a line should be drawn midway between the street improved and the next parallel or converging street, which line should be the boundary line of the district, and that one-fourth of the special tax levied should be levied upon the property fronting...
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