Niehaus v. Mitchell, 32374
| Decision Date | 13 June 1967 |
| Docket Number | No. 32374,32374 |
| Citation | 417 S.W.2d 509 |
| Parties | John NIEHAUS, Paul A. O'Neill and Dennis Zavidil, Trustees of Bayberry Hills Subdivision, Plaintiffs-Appellants, v. John C. MITCHELL and Mrs. John C. Mitchell and Albert Maescher, Jr., and Mrs. Albert Maescher, Jr., Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Robert T. Ebert, Robert R. Young, St. Louis, for appellants.
David G. Dempsey, Dempsey, Zerman & Dempsey, Clayton, for respondents.
CLEMENS, Commissioner.
By these consolidated actions the plaintiff subdivision trustees seek judgments for the amounts of special improvements assessed against the defendants' lots, plus interest and attorney fees. Judgment in the circuit court went for the defendant lot owners, and the plaintiff trustees appeal.
The ultimate issue is the legality of the assessment. That hings on the answer to this question: Where an assessment could be levied only upon a petition to the trustees signed by the owners of 51 per cent of the lots in the subdivision, should lots held by the entirety be counted where only one of the owning spouses signed the petition? Our answer is no. We come to this conclusion in two steps. First, we have decided that the requirement calls for a majority of lots rather than a majority of persons. Second, we have decided that where a lot is owned by the entirety it can be burdened only by the joint action of both spouses.
The lot owners' petition to the trustees shows one or both signatures for 36 of the 63 taxable lots: for 12 lots both husband and wife signed; for 24 lots only one person signed. Thus, if we count lots where one or both spouses signed, then the owners of more than 51 per cent of the lots did sign the petition to the trustees. But if we count only the lots where both spouses signed the petition, then the owners of less than 51 per cent of the lots signed the petition.
The two cases were filed in magistrate court and from there certified to the circuit court, where they were consolidated and submitted on an agreed statement of facts. It stipulated: (1) The plaintiffs are the trustees of Bayberry Hills subdivision under a trust indenture. (2) Defendants Mr. and Mrs. John C. Mitchell own one lot in the subdivision and defendants Mr. and Mrs. Albert Maescher, Jr., also own one lot. (3) On June 5, 1962, the trustees resolved that each lot be assessed $70, payable July 1, 1962, and the trustees so notified all lot owners by letter requesting their written approval. (4) There are 63 lots subject to special assessment. The agreed statement of facts further stated: (5) 'That attached hereto and made a part hereof is the executed form signed by either the husband or the wife, or both, as joint owners of thirty-six (36) lots, or fifty-seven per cent (57%) of the lots subject to special assessments; that the total number of lots wherein signatures of both the husband and wife as joint owners were obtained was less than fifty-one per cent (51%) of the lots subject to the special assessment.' (6) 'That all lot owners, excepting defendants herein, have paid the special assessment.'
To set the stage for the trustees' actions, we spotlight the key parts of the trust indenture: It empowered the trustees to maintain Bayberry Lane, a 40-foot private street running through the subdivision. For this maintenance the trustees on their own initiative could levy an annual 25 cents-a-foot assessment against abutting lots. Beyond this normal maintenance, the trust indenture mapped out a three-step procedure for levying assessments to pay for additional street improvement like that involved here. The first step was a petition requesting the improvements, 'signed by the owners in fee of lots in said subdivision who will have to pay at least fifty-one per cent (51%) of the cost * * *.' The second step to be taken, pursuant to the owners' request, was for the trustees to estimate the cost and assess it pro rata against all lots. The third step was a notice from the trustees to the lot owners telling them the amount and due date of the assessments.
On June 5, 1962, without any prior request from lot owners, the trustees began the action on which they base their claim for the special assessments. Their minutes recite:
The letter sent to the lot owners recited the 'proposal of Maplewood Construction Co. in the amount of $5,462' for street repairs, said that a petition would soon be circulated among the lot owners to authorize an assessment of $70 per lot, and concluded: 'Assuming that the required signatures can be acquired within a week, the special assessment will be payable on July 1, 1962. * * *'
By proceeding in that way the trustees ignored the prescribed three-step procedure. They started with the second step by accepting a bid for repairs and levying an assessment--without prior request from the lot owners; then they took the third step by notifying the lot owners of the assessment last they sought to meet the requirement of the first step by requesting the owners to sign a petition that should have been initiated by the lot owners. We pass over the irregularity of this procedure, however, to reach the crucial issue briefed by the parties: the sufficiency of signatures on the lot owners' petition.
The authority of the trustees to levy the assessment was conditioned on a written petition 'signed by the owners in fee of lots in said subdivision who will have to pay at least fifty-one per cent (51%) of the cost of such contemplated improvement or improvements.' Shorn of excess verbiage--and considering that each of the 63 lots would be charged with 1/63rd of the total cost--this condition can be interpreted to read 'signed by the owners of 51 per cent of the lots.' We will so consider it.
The plaintiff trustees argue that this condition was met by the agreed fact that the petition was 'signed by either the husband or the wife, or both, as joint owners of thirty-six (36) lots, or fifty-seven per cent (57%) of the lots * * *.' By contrast, the defendants insist the provision for signatures by the owners of 51 per cent of the lots is disproved by the other agreed fact that 'the total number of lots wherein signatures of both the husband and wife as joint owners were obtained was less than fifty-one per cent (51%) of the lots * * *.' In support of their contrasting interpretations, the plaintiff trustees cite cases based on a condition requiring consent by a majority of persons who own interests in the lots, and the defendants cite cases based on a condition requiring consent by the owners of a majority of the lots.
The first issue then, pared to the bone, is that: Does the condition refer to a majority of persons or a majority of lots? We repeat the condition--'signed by the owners in fee of lots in said subdivision who will have to pay at least fifty-one per cent (51%) of the cost * * *.' We think a fair reading of the condition calls for a majority of lots, not a majority of persons. But even if there was doubt about this interpretation, the same goal would be reached by applying the well-traveled and analogous rule that ambiguous tax legislation is construed in favor of the taxpayer and against the taxing authority. A. P. Green Fire Brick Co. v. Missouri State Tax Com'n, Mo., 277 S.W.2d 544(4). The principle is equally sound here. 48 Am.Jur., Special or Local Assessments, § 4.
Anticipating this interpretation that the petition must be signed by the owners of a majority of the lots, the plaintiff trustees put forth their principal contention: that where a lot is owned by the entirety, the signature of one spouse suffices as the signature of the lot owner. The plaintiffs cite three cases to support this contention. However, our conclusion that the plaintiffs' authority was conditioned on consent by the owners of a majority of the lots distinguishes our case from plaintiffs' cited cases. This, because the cited cases concern special assessments where remonstrances were measured per capita rather than by the number of lots, as here. Thus, in both Rhodes v. Koch, 195 Mo.App. 182, 189 S.W. 641, and Kitchen v. City of...
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