Parker-Washington Company v. Dodd

• Citation: 264 S.W. 651,305 Mo. 171
• Decision Date: 31 July 1924
• Docket Number: 23509
• Parties: PARKER-WASHINGTON COMPANY, Appellant, v. ELLEN LOUISE TIFFANY DODD, EDWIN M. DODD, JOHN R. TIFFANY, DEXTER TIFFANY, Trustee, AMELIA CORRINE RICH, RICH REALTY & INVESTMENT COMPANY, RICH CONSTRUCTION COMPANY, and COMMONWEALTH CONSTRUCTION COMPANY
• Court: United States State Supreme Court of Missouri

264 S.W. 651

305 Mo. 171

PARKER-WASHINGTON COMPANY, Appellant, v. ELLEN LOUISE TIFFANY DODD, EDWIN M. DODD, JOHN R. TIFFANY, DEXTER TIFFANY, Trustee, AMELIA CORRINE RICH, RICH REALTY & INVESTMENT COMPANY, RICH CONSTRUCTION COMPANY, and COMMONWEALTH CONSTRUCTION COMPANY

No. 23509

Supreme Court of Missouri

July 31, 1924

Appeal from St. Louis City Circuit Court; Hon. William A Taylor, Judge.

Affirmed.

Hart & Hart for appellant.

(1) The assessment district was properly laid out. Charter, sec. 14 art. 4. (2) Filing of the suit was sufficient notice of the issuance of the tax bills and demand for payment. Eyermann v. Provenchere, 15 Mo.App. 256; Bambrick v. Campbell, 37 Mo.App. 460; Charter, sec 25, art. 14; Construction Co. v. Withnell, 190 Mo.App. 40. (3) The suit was not barred by the Statute of Limitations. Charter, p. 384; R. S. 1909, sec. 9849; Fruin v. Meredith, 145 Mo.App. 586; Barber v. Meservey, 103 Mo.App. 186; Construction Co. v. Cole, 205 Mo. 49, 63. (4) One who is liable to pay the tax cannot restrain its collection on the ground that it is excessive without tendering what is due. State ex rel. v. Flad, 26 Mo.App. 500; Boonville ex rel. v. Stephens, 230 Mo. 339; Overall v. Ruenzi, 67 Mo. 203, 207; Dickhaus v. Olderheade, 22 Mo. 78. (5) The work was done in accordance with the contract and has gone into the betterment of the property of the defendants and should be paid for. Fruin v. Meredith, 145 Mo.App. 586; Sheehan v. Owens, 82 Mo. 458.

David Goldsmith for respondents.

(1) There can be no recovery, because the action was prematurely brought. The special tax bill sued upon did not become due or payable under the charter. Rombauer's Revised Code of St. Louis, art. 4, sec. 25, pp. 388, 384. There can be no recovery in an action prematurely brought. Heard v. Ritchie, 112 Mo. 512; Mason v. Bernard, 36 Mo. 391. There was no competent evidence of due service of the notice of the issuance of the tax bill sued upon: (a) because the return of service was not made by the marshal; (b) because the return by a stranger was not proof of service; and (c) because the return offered as proof of service did not show proof of service in the manner prescribed by the charter. (2) The assessment district was not established in accordance with the charter, and the tax bills are therefore void. (3) The special tax bills sued upon constitute the taking of property without due process of law, contrary to the Fourteenth Amendment of the Constitution of the United States. Gast v. Granite Co., 240 U.S. 55; Whitnell v. Construction Co., 243 U.S. 633.

OPINION

Ragland, J.

This is a suit on two special tax bills for assessments levied respectively against a part of lot 46 and a part of lot 47, in City Block 1387, in the city of St. Louis, for the improvement of Gravois Avenue. The tax bills were issued September 25, 1903. At that time John R. Tiffany, as trustee for Ellen Louise Tiffany Dodd, held the dry legal title to the lots, but his cestui que trust was the owner of the equitable title in fee simple. The title so remained until 1905. Subsequently the property was acquired, first, by the Rich Construction Company, then by the Rich Realty & Investment Company, and finally by Amelia Corrine Rich. At the time the suit was commenced, January 11, 1912, the Rich Investment Company was the owner of the property. Nevertheless all the persons and corporations above named were made parties defendant. The petition was in two counts and in the usual form. There was no appearance on the part of the defendants Dodd and Tiffany. The joint answer of the three other defendants consisted of a general denial and a number of affirmative defenses. It is only necessary to say that the pleading was in all respects sufficient to tender the defenses relied upon in the trial, namely: That the suit was prematurely brought; that the property against which the special tax bills was issued did not lie within the district which, under the provisions of the charter of St. Louis then in force, was subject to assessment for the cost of the said improvement; and that the assessments as made violated rights guaranteed defendants by the Fourteenth Amendment of the Constitution of the United States.

An ordinance duly enacted provided for the improvement of Gravois Avenue between Eighteenth Street and Jefferson Avenue. Plaintiff was awarded the contract, and the improvement was made conformably thereto and accepted by the city. Among other tax bills issued to pay for the cost of the improvement were the two in suit: one for $ 131.68 against part of lot 46 and one for $ 161.41 against part of lot 47. Both were payable in seven equal installments. Further facts bearing on the questions presented will be stated in connection with their consideration.

No declarations of law were asked or given. The court found generally for defendants and entered judgment accordingly. From such judgment plaintiff prosecutes this appeal.

I. The question of whether any cause of action on the special tax bills had accrued at the time of the commencement of the suit arises in connection with certain provisions of the charter with respect to notice of the issuance of special tax bills, in force at the time of their issuance. Those provisions, so far as pertinent, were as follows:

"It shall be the duty of the city marshal, at the request of the holder or owner of any tax bill issued under this charter, to serve upon the party or parties named in such tax bill, a notice of the issuance thereof, which service shall be made in the manner provided by law for the service of writ of summons in civil cases. The return of the city marshal as to service shall be conclusive of the facts therein stated, and any person who may be injured by a false return shall have his right of action for damages resulting therefrom against the marshal on his official bond.

". . . Every special tax bill authorized by this charter to be levied or assessed for the construction or reconstruction of streets, avenues, highways, boulevards, or district or joint district sewers, shall be divided into not less than three, nor more than seven equal parts, as may be provided by the ordinance authorizing such improvements, payable and collectible in installments as follows: The first installment shall become due and payable thirty days after notice of the issuance thereof, without interest; the second installment shall become due and payable one year after such notice; the third installment, two years; the fourth installment, three years; the fifth installment, four years; the sixth installment, five years; and the seventh installment, six years, after such notice; provided, however, that the owner, or any person having an interest in the property charged with a tax bill, may pay the same in full at any time within thirty days after notice, as aforesaid, without interest, and such owner or person having an interest may pay such tax bills in full at any time by paying interest thereon as follows: If paid at or before maturity and more than thirty days after notice, as aforesaid, at the rate of six per cent per annum from date of notice to date of payment; if paid after maturity, at the rate of six per cent per annum from date of notice to date of maturity, and at the rate of eight per cent per annum from date of maturity to date of payment; all interest shall be payable annually from date of notice of the issuance of tax bills. If any installment of any such special tax bills, or any interest on any installment, be not paid when due, then at the option of the holder thereof, all remaining installments shall become due and collectible, together with interest thereon as aforesaid."

There were offered in evidence two documents purporting to be written notices of the issuance respectively of the two tax bills in suit. Each was addressed, "To Ellen Louise Dodd, wife of Edwin M., John K. Tiffany, Tr.," and each had appended to it the following:

"I, the undersigned, Gus Reiman, of the City of St. Louis, Missouri, do hereby make return that I served the above and foregoing notice upon Ellen Louise Dodd by delivering a duplicate copy thereof to John K. Tiffany, Tr., on this 11th day of January, 1904 in the City of St. Louis, Mo.

"Gus Reiman."

Defendant objected to the reception of the...