Ruecking Construction Co. v. Withnell
| Decision Date | 17 January 1917 |
| Parties | RUECKING CONSTRUCTION COMPANY v. WILLIAM M. WITHNELL, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Wm. M. Kinsey Judge.
Affirmed.
E. T. & C. B. Allen for appellant.
(1) That no cause of action was stated in the first petition was confessed by filing an amended petition. On May 23, 1910 when the ameded petition was filed, the action was barred. Walker v. Railroad, 193 Mo. 474; Bricken v Cross, 163 Mo. 456. (2) The amended petition constituted a departure. The first petition sought to foreclose a lien for special assessment created under the charter of 1876, which was repeated in 1901. The amended petition sought to foreclose the lien for special assessment created by the amendment of the charter in 1901. Wasson v. Boland, 136 Mo.App. 628; McHugh v. Transit Co., 190 Mo. 94; Ingwerson v. Railroad, 205 Mo. 355; Huston v. Tyler, 140 Mo. 252; Sutter v. Raeder, 149 Mo. 309; Wilkerson v. Farnham, 82 Mo. 672; Lennox v. Coal Co., 158 Mo. 490; Ross v. Land Co., 162 Mo. 318; Heman v. Glann, 129 Mo. 336. (3) The amended petition contained no allegation that the required notice was given the property-owner. Without such a notice plaintiff had no cause of action. The demurrer should have been sustained. Rombauer's Municipal Code, art. 4, sec. 25, p. 383; Schneider v. Gast Inv. Co., 259 Mo. 153; Schulte v. Currey, 173 Mo.App. 578; Trust Co. v. County, 145 F. 874; Trinidad v. Hokasona, 178 F. 440; Canter v. St. Joseph, 126 Mo.App. 634. (4) The amended petition having alleged that the entire amount of the tax bill was due and payable on March 2, 1908, showed on its face that the lien had expired on March 23, 1910, when the amended petition was filed. Rombauer's Municipal Code, art 6, sec. 25. (5) There was no allegation in the amended petition that plaintiff had elected to cause all installments to mature. Without such an allegation the bill as a whole had not matured. The demurrer should have been sustained. Municipal Code, art. 6, sec. 25. (6) Secs. 9848 and 9849, R. S. 1909, are not in conflict with the charter of St. Louis. Such appears from the words of those provisions. (7) The Legislature has absolute power over municipal corporations unless such power is denied to it by the State or Federal Constitutions. Art. 4, sec. 1, Constitution 1875; Kelly v. Meeks, 87 Mo. 400; Commonwealth v. Moir, 199 Pa. 534; State v. County Court, 34 Mo. 546; County Court v. Griswold, 58 Mo. 175; Cass County v. Jack, 49 Mo. 199; Commonwealth v. Plaisted, 148 Mass. 375; Darlington v. Mayor, 31 N.Y. 164. (8) Statutes relating to procedure are presumed to apply to all actions pending or future actions unless the statute shows a contrary intention. Clark v. Railroad, 219 Mo. 524; State ex rel. v. Stuart, 111 Mo.App. 478; Oil Co. v. Beacham, 120 P. 969; Darling v. Miles (Ore.), 112 P. 1084; Laird v. Carton, 196 N.Y. 169; Haarstick v. Gabriel, 200 Mo. 237. (9) The constitutional provision against retrospective legislation does not prevent retrospective change of remedy, but protects vested rights. Abbott v. Mining Co., 255 Mo. 378; Clark v. Railroad, 219 Mo. 524; Gibson v. Railroad, 225 Mo. 480. (10) The extinguishment, modification or limitation of a lien is a mere change of remedy, the lien itself being a method of enforcing a right. Abbott v. Mining Co., 255 Mo. 378; Seibert v. Copp, 62 Mo. 182; Wade, Retroactive Law, sec. 231; Burwell v. Tullis, 12 Minn. 572; Bangor v. Goding, 35 Me. 73. (11) The requirement of notice in the present tax bill and lien statute is a mere change in remedy and applies to all actions brought after its enactment whether the tax bill was issued before its enactment or after. Trust Co. v. Donnell, 81 Mo.App. 147; West v. Porter, 89 Mo.App. 150; Plum v. Fond du Lac, 51 Wis. 393.
George M. Block, Edward L. Gottschalk and Schnurmacher & Rassieur for respondent.
(1) Both the original and amended petition stated facts sufficient to constitute good causes of action. Bambrick Bros. Constr. Co. v. McCormick, 157 Mo.App. 198; Paving Co. v. Bath, 136 Mo.App. 555; Bank v. Wright's Trustee, 68 Mo.App. 144; Vieths v. Planet Co., 64 Mo.App. 207; Turner v. Patton, 54 Mo.App. 654. (a) Both were based on exactly the same tax bills. The original differed from the amended petition only in that it averred certain legal conclusions which were erroneous. The amended petition was, therefore, not a departure, nor an attempt to substitute a different cause of action. (b) But if it had been a departure, by pleading over and going to trial, defendant waived this objection. Castleman v. Castleman, 184 Mo. 432. (2) Since the amended petition was not a departure from the original and related back, the suit was begun February 26, 1910, and before any of the installments of the tax bills matured. But even on the theory that the suit was first instituted when the amended petition was filed on May 23, 1910, the action was not barred. Only tax bills, not payable in installments, expire two years after their date. Fruin v. Meredith, 145 Mo.App. 586. (3) The petition nowhere states that the tax bills became due and payable March 2, 1908, as contended by defendant. The allegation is that on that date payment of the tax bills was demanded, that payment was refused and that the tax bills are "still due and payable." Under the charter of the city of St. Louis the first installment did not become payable on demand, but thirty days after notice of the issuance of the tax bill. Charter of St. Louis, art. 6, sec. 25; Fruin v. Meredith, 145 Mo.App. 600. (4) A petition to enforce a special tax bill need not allege in so many words that defendant's property is within the taxing district. See cases cited under point one. That fact, however is alleged in the petition at bar, by necessary intendment. Vieths v. Planet Property & Financial Co., 64 Mo.App. 211. (5) The case of Gast Realty & Investment Company v. Schneider Granite Company, 240 U.S. 55, does not invalidate any of the provisions of the St. Louis City charter, nor overrule any doctrine of this court on the subject of special taxation, as assumed in the divisional opinion. It merely decides that upon the peculiar and unusual facts presented in that case, the assessment there in question was invalid as to so much thereof as related to the three-fourths based on area; but limits the right of complaint to persons actually suffering from "inequalities that have no justification in law." Even in that case the one-fourth of the tax bill based on frontage was not questioned. The United States Supreme Court has not condemned either the front foot rule, nor the area rule, nor a combination of both, in apportioning the cost of local improvements. On the contrary, since its decision in Gast Realty and Investment Company v. Schneider Granite Company, it has recognized such methods. Land Co. v. Kansas City, U. S. Adv. Ops. 1915, p. 647; Wagner v. Leser, 239 U.S. 207.
OPINION
In Banc.
This is a suit brought by the Ruecking Construction Company in the circuit court of the city of St. Louis, in twelve counts on twelve special tax bills issued by said city to the construction company for the paving of Broadway between Osage and Neosho streets, a distance of six blocks. William W Withnell, the defendant, is the owner of the property against which it is sought to enforce the lien of the tax bills. The first five counts of the petition are against five lots in City Blocks 2609 lying east of Broadway between Montana and Gasconade streets. The succeeding five counts are against five lots in City Block 2608 on the east side of Broadway between Montana and Osage streets. The eleventh count is against a lot in City Block 2621 on the west side of Broadway between Gasconade and Meramec streets; and the twelfth count is against a lot in City Block 2620 on the west side of Broadway between Gasconade and Meramec streets. The first ten counts are on tax bills for $ 187.69 each. The eleventh count is on a tax bill for $ 3097.05; and the twelfth count is on a tax bill for $ 2745.28. The petition alleged the corporate nature of the plaintiff, that the defendant was the owner of the property described and that the city of St. Louis, by virtue of Ordinance No. 22604, contracted with plaintiff for the paving of Broadway between the limits named; that by a provision of the charter of said city, as amended October 22, 1901, the cost of the work was chargeable, in the name of the owner, to the abutting property, to the extent of one-fourth according to its frontage and to three-fourths according to its area; that by the terms of the contract and said Ordinance No. 22604 the materials to be used and the manner in which the work was to be done are prescribed; that plaintiff fully performed and completed the work in a skillful and workmanlike manner and in accordance with the contract and ordinance; that the president of the Board of Public Improvements had charge of the work, and when the same was completed computed its cost and assessed the value as a tax bill against the property of the defendant in proportion to its frontage and area and made out the tax bills therefor; that the just proportion of the cost of the work chargeable to the property described is the amount for which the bill was made out; that the particulars of same appear from a bill filed as an exhibit therewith; that the president of the Board of Public Improvements who made out the tax bill registered the same in his office and certified and delivered it to the Comptroller and took his receipt therefor, and that the Comptroller registered and...
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