Milton Const. & Supply Co. v. Metropolitan St. Louis Sewer Dist.
| Decision Date | 11 December 1961 |
| Docket Number | No. 48569,No. 1,48569,1 |
| Citation | 352 S.W.2d 685 |
| Parties | MILTON CONSTRUCTION & SUPPLY COMPANY, a Corporation, Plaintiff-Respondent, v. METROPOLITAN ST. LOUIS SEWER DISTRICT, a Municipal Corporation, Defendant-Appellant, and William L. Whalen et al., Intervenors-Appellants |
| Court | Missouri Supreme Court |
Charles B. Kaiser, Jr., George C. Hays, Edward G. Wiegers and Charles Clardy, St. Louis, for defendant-appellant.
Val Terschluse, St. Louis, Strubinger, Tudor, Tombrink & Wion, for intervenors-appellants.
Kerth, Thies & Schreiber, A. H. Kerth, Dalton W. Schreiber, Clayton, for plaintiff-respondent.
HOUSER, Commissioner.
Milton Construction & Supply Company, a corporation engaged in subdividing and developing real estate, building and selling houses to the public, filed a petition in the Circuit Court of St. Louis County seeking (1) a declaratory judgment that paragraph 7 C of its contract with Metropolitan Sewer District (hereinafter MSD) was void and unenforceable, and (2) recovery of $59,400 deposited by plaintiff with MSD pursuant to the contract, plus interest. Paragraph 7 C, briefly, provided that upon the occurrence of a certain contingency the amount deposited by plaintiff with MSD (to insure proper sanitary sewage disposal for two certain subdivisions) be refunded to the lot owners. One hundred lot owners were permitted to intervene and make claim to the fund for themselves and for the entire class of 297 lot owners of which they were a part. Tried to the Circuit Court of St. Louis County upon an agreed statement of facts and certain oral evidence presented to the court, sitting without a jury, judgment was rendered finding paragraph 7 C void and unenforceable; ordering the refund of the amount deposited, with interest, to plaintiff, and awarding judgment for plaintiff and against MSD in the sum of $59,400, plus $14,374.80 interest, in the total sum of $73,774.80. From that judgment MSD and intervenors appealed to this Court.
The agreed statement of facts, signed by the attorneys for plaintiff, MSD and intervenors, follows:
'Comes now the Plaintiff, Defendant and the Intervenors individually and as representatives of the entire class, by their respective attorneys, and agree that this Cause of Action may be submitted on the following agreed statement of facts:
'1. That Plaintiff is a corporation duly organized and existing under the laws of the State of Missouri, having its principal office at 7567 St. Charles Rock Road in Saint Louis County, Missouri.
'2. That The Metropolitan St. Louis Sewer District is a Municipal corporation, and a political subdivision of the State of Missouri, with power to sue and be sued, contract and be contracted with and in other ways to act as a public corporation as provided in a Plan submitted to the qualified voters of the City and County of St. Louis, Missouri, and adopted at special elections which were held separately in said City and said County on Tuesday, February 9, 1954.
'3. That the Intervenors herein, as individuals and as representatives of a class of persons similarly situated were customers of the Plaintiff, having purchased the hereinafter mentioned lots from Plaintiff prior to February 7, 1956.
'4. That under the provisions of Article 3, Section 3.010, effective on July 1, 1954, and by virtue of the adoption of the Plan by the vote of the people of the City and County of St. Louis, the existing sanitary and storm sewer systems and facilities of any and all municipalities, sewer districts and other public agencies situated within the boundaries of the said City and County, became subject to the exclusive jurisdiction, control and supervision of the Defendant; and under the provisions of Section 3.020 the District (Defendant) was empowered to have exclusive jurisdiction, control, possession and supervision of such sewers and drainage systems and facilities as are placed under its jurisdiction by the provisions of said Plan; that under the provisions of Section 12.010 the Plan was declared to be a Public Act, and all Courts shall take judicial notice thereof.
'5. That for a long time prior to the 9th day of February, 1954, the Plaintiff had been engaged in the business of acquiring developing and selling parcels of real estate situated within the County and City of St. Louis, Missouri.
'6. That Plaintiff was the developer of Subdivisions known as Hathaway Meadows No. 3 and Hathaway Meadows No. 4.
'7. That the Intervenors, as individuals and as representatives of the whole class, were the owners of 297 lots in said Subdivisions, Hathaway Meadows No. 3 and Hathaway Meadows No. 4, on February 7, 1956, being Lots 278 to and including 432 in Hathaway Meadows #3, and 433 to and including 587 in Hathaway Meadows #4, excepting therefrom Lots 541, and 542 to 553 in Hathaway Meadows #4, the latter being owned on said date (February 7, 1956) by the Plaintiff herein.
'8. That said Intervenors and the entire class as individuals had purchased said Lots from Plaintiff at various times prior to February 7, 1956 (or were owners in fee of some of said lots on said date by mesne conveyances from those who had purchased from Plaintiff) and were owners of record on February 7, 1956.
'9. That prior to construction and sale of said homes and lots, Plaintiff as developer of said Subdivisions and in accordance with its established plan for the development of said Subdivisions, desired to provide sanitary sewers and sewer facilities for said lots and to accomplish that end Plaintiff applied to Defendant for permission to install such sewage facilities in Hathaway Meadows No. 3 and Hathaway Meadows No. 4.
'10. That as a condition to the granting of a permit to Plaintiff for the installation of said sewers aforesaid, Defendant required Plaintiff to enter into an agreement bearing date of January 12, 1955, providing for sewage disposal, or construction of a complete permanent treatment plant, which said agreement is attached hereto and incorporated herein by reference the same as though fully set forth herein, and said agreement required the Plaintiff to deposit the sum of $200.00 per each lot for which a sanitary sewer connection had been requested to provide a fund for the construction of complete permanent treatment facilities or of a trunk sanitary sewer or sewers to care for sewage created by these and other homes.
'11. That Plaintiff was agreeable and willing to and did enter into said agreement as attached, on January 12, 1955, but, that Plaintiff objected to said agreement in part, especially sub-paragraph C of Paragraph 7, pertaining to refunding of the $200.00 per lot to the owners on the date when the bond issue was approved by voters of the sub-district, and therefore insisted upon the insertion of Paragraph 10 of said contract to preserve its right to test the validity of said contract and so that its signing of same would not constitute a waiver of that right.
'12. That Plaintiff did deposit the sum of $200.00 per lot, aggregating $61,600.00, with the defendant for the said 308 lots in issue, following the execution of said agreement.
'13. That said Agreement provided in part (Paragraph 7, subparagraph C) that if the voters of the sub-district in which these lots were located should vote for the construction of a trunk sanitary sewer to be financed by any form of obligation of the Sub-district, the amounts so deposited by plaintiff for the benefit of each lot would be refunded to the persons owning such lots on the date that the indebtedness is authorized by such vote.
'14. That thereafter Plaintiff constructed and built the various houses on said lots and installed the house laterals and street laterals within the area mentioned and thereafter sold said houses and lots to the Intervenors herein, or to the predecessors in title to some of the Intervenors herein.
'15. That on February 7, 1956, the lawful voters of the Sub-district of Defendant wherein these lots are located, at an election held for that purpose, authorized the issuance of bonds as an indebtedness of said Sub-district, as provided by law, the proceeds of which would be used for the construction of a trunk sanitary sewer, and said bonds were to be retired by taxation of the people of said Sub-district, and since said time, annual taxes are and have been collected for said purpose. That the records of St. Louis County, Missouri, will show the following total assessments, for the years stated, of the properties within the boundaries of the Maline Creek Sanitary Trunk Sewer Sub-district, to-wit:
December 31, 1955 $56,729,240.00
December 31, 1956 89,875,000.00
December 31, 1957 93,404,683.00
'16. That Defendant then notified all concerned that the aforementioned monies held on deposit by it would be refunded to the owners of the lots on the date in question (February 7, 1956) and Defendant did refund to Plaintiff the sum of $2,200 for 11 of said lots which were still owned by Plaintiff on said date, being Lots 541, and 542 to 553.
'17. That all other aforementioned lots, 278 to 432 of Hathaway Meadows No. 3, and 433 to 587 () had been sold by Plaintiff prior to February 7, 1956, to the Intervenors herein or others, but being the whole class represented as Intervenors or by said Intervenors as a class.
'18. That Plaintiff served notice on Defendant that it would contest the validity of the agreement attached and said remaining funds were held in abeyance by Defendant and not refunded under said agreement pending outcome of such contest.
'19. That thereafter this action was instituted by Plaintiff to test the validity of said contract and Intervenors filed their separate petition claiming said funds for themselves individually and as representatives of the entire class, under the contract.
'20. That all parties hereto had knowledge of said...
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