Morey Engineering & Construction Company v. St. Louis Artificial Ice Rink Company

• Decision Date: 09 April 1912
• Citation: 146 S.W. 1142,242 Mo. 241
• Parties: MOREY ENGINEERING & CONSTRUCTION COMPANY v. ST. LOUIS ARTIFICIAL ICE RINK COMPANY et al., Appellants
• Court: Missouri Supreme Court

146 S.W. 1142

242 Mo. 241

MOREY ENGINEERING & CONSTRUCTION COMPANY v. ST. LOUIS ARTIFICIAL ICE RINK COMPANY et al., Appellants

Supreme Court of Missouri

April 9, 1912

Appeal from St. Louis City Circuit Court. -- Hon. Jesse McDonald Judge.

Affirmed.

H. A Loevy for appellants; Rodgers & Koerner, Amici Curiae.

(1) The charter lien of taxbill has no priority over the liens of the two deeds of trust. Everett v. Marston, 186 Mo. 587; Jaicks v. Silliman, 128 Mo. 183; St. Louis v Clemens, 36 Mo. 394; Anderson v. Holland, 40 Mo. 373; Clemens v. Knox, 31 Mo. 197; Trust Co. v. Niggeman, 119 Mo.App. 62; 25 Cyc. 662, 678; 27 Cyc. 1176; 25 Am. and Eng. Ency. Law, 1235-7; 1 Cooley, Taxation, pp. 468-872; Elliott, Roads and Streets, secs. 543, 547, 599; Hamilton, Special Assessments, sec. 708; Rankin v. Scott, 12 Wheat. 177; Lyman v. Alley, 130 U.S. 177; Cook Case, 101 Ind. 446; Aetna Case, 117 Ind. 251; Pierce Case, 131 Ind. 284; Lovelace Case, 133 Ind. 600; Dana v. Woodruff, 51 Conn. 203; Bibbins v. Clark, 90 Iowa 230; Brick Co. v. Smith, 108 Iowa 307; Pittsburg's Appeal, 40 Pa. St. 457; Gormley's Case, 27 Pa. St. 49; Downey v. Mayor, 54 N.Y. 186; Harper v. Downey, 113 N.Y. 644; Tull v. Royston, 30 Kas. 617; Rogers v. Carrier, 13 Gray, 129; Seattle v. Hill, 14 Wash. 487; Green v. Tidball, 26 Wash. 338; Trustees v. Trenton, 30 N.J.Eq. 667; O'Neil v. Dresnger, 31 N.J.Eq. 507; Howell v. Essex, 31 N.J.Eq. 672; Allen v. Allen, 34 N.J.Eq. 493; Shotwell Case, 45 N.J.Eq. 106; Finn v. Hayes, 37 Mich. 63; Copeland v. Kehoe, 67 Ala. 594. (2) Statutes of taxation are strictly construed and all doubts resolved in favor of taxpayer. 2 Suth. Stat. Const., sec. 537, p. 999. This is the rule as to special assessments for public improvements. 2 Suth. Stat. Const., p. 1011; 1 Cooley, Taxation, p. 468.

Carter, Collins & Jones, David Goldsmith and Charles W. Bates for respondent.

(1) Under the charter of the city of St. Louis, the special taxes in question are levied upon the property itself and the lien is, therefore, upon the entire title, including all interests therein, and is paramount to prior mortgages. Charter of St. Louis, art. 6, secs. 14, 25; Keating v. Craig, 73 Mo. 507; Corrigan v. Bell, 73 Mo. 53; Stafford v. Fizer, 82 Mo. 393; State v. Railroad, 77 Mo. 202; Jaicks v. Sullivan, 128 Mo. 177; Perkinson v. Meredith, 158 Mo. 457; Dresman v. Bank, 100 Ky. 571; Dresman v. Smirnia, 104 Ky. 693; Morey v. Duluth, 75 Minn. 225; Wabash Co. v. Commissioners, 134 Ill. 384; O'Dea v. Mitchell, 144 Cal. 382; Chase v. Trout, 146 Cal. 365; Tybaso v. Ft. Myers, 56 Fla. 817; Richmond v. Williams, 102 Va. 733; Norwich v. Hubbard, 22 Conn. 587; State v. Kilburn, 81 Conn. 9; Auditor v. Bishop, 161 Mich. 122; Dale v. McEvers, 2 Cowen (N.Y.), 118; Warner v. Van Alstyne, 3 Paige (N.Y.), 513; Clifton v. Cincinnati, 6 Am. Law Rec. (Ohio) 687; Morlein v. Westmeier, 4 Ohio C. C. 299; Corporation of Birmingham, L. R. 17 Ch. D. 782. (2) Special assessments or taxes for local public improvements are levied under the powers of taxation and are taxes, though not general taxes, is too well settled in this State to be open for argument. Garrett v. St. Louis, 25 Mo. 505; Meier v. St. Louis, 180 Mo. 408; Const. Co. v. Railroad, 206 Mo. 172. (3) The same language heretofore employed in the statutes providing that general taxes shall be a lien upon the property, occurs in the charter providing for the special taxes in question; and it has been uniformly held by this court that that language creates a lien on the property paramount to all prior mortgages. Stafford v. Fizer, 82 Mo. 393; Keating v. Craig, 73 Mo. 507; State v. Railroad, 77 Mo. 220; Allen v. McCabe, 93 Mo. 138; Williams v. Hudson, 93 Mo. 529; Fleckenstein v. Baxter, 114 Mo. 496; Walker v. Mills, 210 Mo. 694; Meriwether v. Overley, 228 Mo. 250; Parker v. Baxter, 2 Gray (Mass.), 188; Osterburg v. Trust Co., 93 U.S. 428. (4) All persons who own property interests in the lots charged with the lien are the persons designated by the charter (sec. 25, art. 6) as the owners. Stafford v. Fizer, 82 Mo. 399; Longwell v. City, 69 Mo. Ap. 184; Morey v. Duluth, 75 Minn. 226; Railroad v. Scott, 38 S.C. 37; Hagerstown v. Grob, 101 Md. 560; Lawrence Co. v. Toll Co., 11 S.D. 74; Severni v. Railroad, 38 Ia. 463; Chouteau v. Thompson, 2 Oh. St. 114; Garrard v. Railroad, 14 Neb. 271. (5) The provision in section 25 of article 6 of the charter that the special taxes shall be collected of the owner of the land as any other claim in any court of competent jurisdiction, means by such process as is adapted to the enforcement of the lien on the lot. Barber Co. v. St. Joseph, 183 Mo. 451; Neenan v. Smith, 50 Mo. 525. (6) The provisions of the Kansas City charter, referred to in Keating v. Craig, 73 Mo. 507, and Corrigan v. Bell, 73 Mo. 53, to the effect that parties in interest might be made defendants in enforcing the lien and that those not made parties should not be bound by the judgment, were only declaratory of the law. Stafford v. Fizer, 82 Mo. 393; Perkinson v. Meredith, 158 Mo. 457; and do not differ in legal effect from the provisions in the charter of St. Louis. Perkinson v. Meredith, 158 Mo. 457. The question was not presented to the court for decision, but it is extremely doubtful if either Kansas City or St. Louis can lawfully enact, in their charters, provisions regulating practice in the courts, the rights of parties in legal proceedings or the effect of judgments, especially as the general law, particularly the Constitution and the Code of Civil Procedure, covers the same matter. Do these provisions relate to municipal regulations? Badgley v. St. Louis, 149 Mo. 122; State ex rel. v. Tel. Co., 189 Mo. 83. (7) The mortgagees took their interests in the land subject to the charter provisions, which provided for assessment of the entire interests in the land, and they cannot complain when the valid tax is enforced against their interests that their property is being taken without due process of law. Provident Inst. v. Jersey City, 113 U.S. 506. (8) The only cases tending to support appellants' position are the early cases in Indiana and New Jersey. The later cases in Indiana sustain the earlier ones with expressed doubt, solely upon the basis of stare decisis. None of the other cases cited sustain appellants' position.

Lambert E. Walther and Truman P. Young for the City of St. Louis, Amica Curiae.

(1) The power to levy special assessments grows out of the taxing power of the State. It is only one method of exercising that power. Meier v. St. Louis, 180 Mo. 391; St. Louis v. Contracting Co., 202 Mo. 451; Garrett v. St. Louis, 25 Mo. 505. (2) The lien of general taxes is in its nature, in the absence of any express statutory provision, a lien superior to all pre-existing incumbrances. Osterberg v. Trust Co., 93 U.S. 424; Jack v. Weiennett, 115 Ill. 105; Stafford v. Fizer, 82 Mo. 393. (3) The same effect should be given the lien of special taxes. It is in its nature, without any express statutory provision so declaring, a lien superior to pre-existing mortgages, deeds of trust or other liens arising out of contract. It is an exercise of the sovereign power of the State, and necessarily binds the entire thing taxed, no matter what is the condition of the title. Keating v. Craig, 73 Mo. 507; Excelsior Springs v. Henry, 99 Mo.App. 450; Corrigan v. Bell, 73 Mo. 53; Wabash v. East Lake, 134 Ill. 384; Dressman v. Bank, 100 Ky. 571; Morey v. Duluth, 75 Minn. 221; Seattle v. Hill, 35 L.R.A. 372; Pittsburg's Appeal, 70 Pa. St. 142; Cities' Appeal, 41 Pa. St. 60; Ready v. Burke, 90 Cal. 1. (4) Suits upon special taxbills are proceedings in rem, and not in personam. Railroad v. East Lake, 129 Ill. 417; Neenan v. St. Joseph, 126 Mo. 89; Charley v. Kelley, 120 Mo. 134. (5) Even conceding that the lien of a special taxbill will not have priority unless the statute so declares, nevertheless the statute will be construed as giving the tax lien superiority even though it is not so stated in express terms. If the words of the statute, either by reference in terms or by reference to the general statutes, manifest a clear intention to make taxes assessed after the execution of a mortgage a prior lien, such paramount effect will be given them. Howell v. Essex, 32 N.J.Eq. 672; Thompson v. Thorp, 33 N.J.Eq. 401. This is true even in Indiana. State v. Ins. Co., 107 Ind. 251.

FERRISS, J. Brown, Woodson and Graves, JJ., concur; Kennish, J., dissents in an opinion filed, in which Valliant, C. J., and Lamm, J., concur.

OPINION

In Banc

FERRISS, J.

This is an action brought in the circuit court of the city of St. Louis by the contractor to whom the city of St. Louis issued a special taxbill, for the improvement of Cook avenue, for the sum of $ 721.31, against a lot of ground on said Cook avenue, charged with said special taxbill. The defendants (appellants here) are the St. Louis Artificial Ice Rink Company, owner of the equity of redemption in said lot, together with the owners and holders of certain notes secured by two deeds of trust upon the said lot, and their trustees. The first deed of trust was dated November 1, 1898, and recorded on the 5th day of November, 1898, securing the payment of fifteen thousand dollars with interest; the second deed of trust was for two thousand and sixty dollars, executed on the 14th day of July, 1900, and duly recorded on the same date.

The ordinance for the improvement of Cook avenue, for which the taxbill in question was issued, was approved April 7, 1902, and the taxbill was issued May 7, 1903.

Judgment below was for plaintiff. The record presents a single question: Under the charter of the city of St. Louis, has the lien of a special taxbill, issued for street improvements priority over a deed of trust which...