Troost Ave. Cemetery Co. v. Kansas City

• Decision Date: 25 September 1941
• Docket Number: 37224,37225
• Citation: 154 S.W.2d 90,348 Mo. 561
• Parties: Troost Avenue Cemetery Company, a Corporation, Appellant, v. Kansas City, Lowenthal Securities Company, James L. Williams as Sheriff of Jackson County, and Richard J. Loewenthal. Troost Avenue Cemetery Company, a Corporation, v. Kansas City, Loewenthal Securities Company, James L. Williams as Sheriff of Jackson County, and Richard J. Loewenthal (Williams, sheriff, not appealing), Appellants
• Court: Missouri Supreme Court

154 S.W.2d 90

348 Mo. 561

Troost Avenue Cemetery Company, a Corporation, Appellant, v. Kansas City, Lowenthal Securities Company, James L. Williams as Sheriff of Jackson County, and Richard J. Loewenthal. Troost Avenue Cemetery Company, a Corporation, v. Kansas City, Loewenthal Securities Company, James L. Williams as Sheriff of Jackson County, and Richard J. Loewenthal (Williams, sheriff, not appealing), Appellants

Nos. 37224, 37225

Supreme Court of Missouri

September 25, 1941

Appeal from Jackson Circuit Court; Hon. T. J. Seehorn Judge.

Reversed (with directions).

Henry L. Jost and Henry L. Jost, Jr., for Troost Avenue Cemetery Company.

(1) The levy on and sale of any part of the cemetery lands involved herein, platted, devoted to and actually used for public burial purposes for over fifty years in Kansas City Missouri, with over 61% thereof occupied by graves, which are "distributed pretty generally over said cemetery lands" to enforce special benefit assessments thereon to pay condemnation awards for land taken to establish a public boulevard under the Kansas City, Missouri Charter adopted under constitutional grant (Constitution of Missouri, Article IX, Section 16), is unlawful and void under the Missouri Constitution, the laws and public policy of the State, and under the specific provisions of said city charter; said charter expressly providing that such special assessments shall be a general judgment, and forbidding the seizure and sale of such cemetery lands for the purpose of satisfying such special assessments. Kansas City, Missouri Charter of 1908, Sec. 26, and Kansas City, Missouri Charter of 1926, Art. VIII "Public Improvements," Sec. 319; Sec. 6, Art. X, Mo. Const.; Sec. 16, Art. IX, Mo. Const.; R. S. 1929, sec. 1161; State ex rel. Mt. Mora Cemetery v. Casey, 210 Mo. 235; Allison v. Cemetery Caretaking Co., 283 Mo. 424; United Cemetery Co. v. Strother, 332 Mo. 971; State ex rel. Rosenblatt v. Wesleyan Cemetery Assn., 11 Mo.App. 560; Natl. Cemeteries Assn. of Missouri v. Benson, 344 Mo. 784, 129 S.W.2d 842, 122 A. L. R. 893. The charter of Kansas City, above cited, by its terms converts said special assessments into a general judgment, hence only a general execution thereon can be issued, and said general judgments under the charter were incapable of enforcement by special execution. Kritzer v. Smith, 21 Mo. 296; State ex rel. Mt. Mora Cemetery v. Casey, 210 Mo. 235; Secs. 1153, 1331, R. S. 1929. (2) Said special assessments and the lien thereby created expired and became wholly unenforceable at all by any process or method, under the Statute of Limitations, at the expiration of ten years from the date said special assessments became final, or certainly at the expiration of ten years from the date of the last payment thereon, June 30, 1928, as to that part of the special assessments allocable to lands actually owned by appellant cemetery company. Sec. 886, R. S. 1929; Kansas City v. Field, 285 Mo. 253; State ex rel. Hibbs v. McGee, 328 Mo. 1176; Secs. 1104, 1105, 1106, R. S. 1929. (3) The special assessments imposed against the cemetery company for that part and portion represented by 61.36% of said cemetery lands owned and occupied by graves, under absolute deeds from the cemetery company, of record in the office of the Recorder of Deeds of Jackson County, Missouri, at the time said special assessments were imposed thereon, are void, ab initio, because the record owners of such lands so used and occupied under said deeds, were not legally notified, nor by any process brought in and made parties to said assessment proceedings. Charter of Kansas City, Art. VIII "Public Improvements," Sec. 300; Allison v. Cemetery Co., 283 Mo. 424; Barrie v. Richmond Cemetery, 221 Mo.App. 708; Mullins v. Cemetery Assn., 239 Mo. 681, 259 Mo. 142, 268 Mo. 691; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; State ex rel. v. Blair, 238 Mo. 132. The cemetery company had the legal right (before the Statutes of Limitation applied and was invoked) being liable only for such part of the special assessments as pertained to the 15.64% of the property, actually owned by the cemetery company at the time said special assessments were imposed, to have the court scale and reduce the amount of such special assessments to the proper proportion thereof as was actually then owed by the cemetery company, and thus and thereby to discharge itself fully from said special assessments. 27 Am. & Eng. Ency. of Law (2 Ed.), 859; State ex rel. Telegraph Co. v. Markway, 110 S.W.2d 1118; 4 Cooley on Taxation (4 Ed.), p. 3361, sec. 1663; Overall v. Ruenzi, 67 Mo. 203; State ex rel. Wellworth Realty Co. v. Koeln, 255 Mo. 301. (4) Even if appellant cemetery company were held liable (before the Statutes of Limitation applied and were invoked) on an accounting for such part and portion of said special assessments as were properly allocable to its 15.64% of the cemetery lands, actually owned by it, it was entitled to a credit for the $ 800 paid on account of its own indebtedness June 30, 1928, for it had the legal right to pay such part of the entire indebtedness as it justly owed at that time, and was justly chargeable against its part of the land. Mechanics' Bank v. Wright, 53 Mo. 153; State ex rel. Wellworth Realty Co. v. Koeln, 255 Mo. 301; Smith v. Roach, 59 Mo.App. 115; Northrup v. Colter, 150 Mo.App. 639. Also the cemetery company was entitled to be relieved, under such circumstances and conditions, from the payment of any interest on such reduced part of the assessment chargeable to it, because of the failure and refusal of the City and its assignee, Loewenthal Securities Company, to allow it to discharge its said indebtedness and its balance of said special assessments, and because of the misbehavior and unlawful conduct and exactions of the City and the said securities company in demanding the cemetery company pay the whole of said special assessments, and compelling the cemetery company in defense of its said rights, to defend against the unlawful and vexatious and oppressive demands of the City and its said assignee. 15 R. C. L. 33, sec. 30; Tetley v. McElmurry, 201 Mo. 382; Bothmann v. Met. Life Ins. Co., 231 S.W. 1007; Stevens v. Gwathmey, 9 Mo. 628.

William E. Kemp, J. J. Cosgrove and Benj. M. Powers for Kansas City; Clarence S. Palmer for Loewenthal Securities Company and Richard J. Loewenthal.

(1) The condemnation judgment was entirely valid and the only one authorized by the Kansas City Charter. City Charter, Art. 6 Secs. 132, 133, 136, 156, 174, 175; Mullins v. Mount Saint Mary's Cemetery Assn., 239 Mo. 681; Mullins v. Mount Saint Mary's Cemetery Assn., 259 Mo. 142; Mullins v. Mount Saint Mary's Cemetery Assn., 268 Mo. 691; Mount Saint Mary's Cemetery Assn. v. Mullins, 248 U.S. 501; Kansas City v. Marsh Oil Co., 140 Mo. 459; Lockwood v. St. Louis, 24 Mo. 20; Farrar v. St. Louis, 80 Mo. 379; Ranney v. Cape Girardeau, 255 Mo. 514; Kansas City v. Denver, 135 S.W. 571. (2) This was a final judgment and cannot be collaterally attacked. Lovitt v. Russell, 138 Mo. 474; Walther v. Null, 233 Mo. 104, 134 S.W. 903. (3) Section 319 of the charter cannot change the terms of the judgment in the condemnation case. Sec. 319, Kansas City Charter; Carlin v. Cavender, 56 Mo. 28; St. Louis v. Bressler, 56 Mo. 349. In the construction of Section 319 the following rules of interpretation should be considered: the entire section should be construed so as to effect the purpose of the whole section. 25 R. C. L., p. 216; Lewis Sutherland on Statutory Construction (2 Ed.), sec. 347; State ex rel. v. Fry, 186 Mo. 198; Humes v. Mo. Pac. Ry. Co., 82 Mo. 221; Grimes v. Eddy, 126 Mo. 168; Wolff Chemical Co. v. Philadelphia, 217 Pa. 215, 66 A. 344; State v. Babcock, 242 N.W. 474. The meaning of general words must be restricted whenever it is found necessary to do so in order to carry out the legislative intentions, 26 R. C. L., sec. 223. State ex rel. Garesche v. Roach, 258 Mo. 541; Rodgers v. United States, 185 U.S. 83; State ex rel. v. Hotel Co., 9 Mo.App. 453. (4) The Statute of Limitations had not expired when this suit was brought and the answers including the counterclaim had been filed. The payment of the first installment of the judgment was made June 30, 1928. Secs. 860, 886, R. S. 1929, Laws 1919, p. 221. (5) If the court should decide that on the grounds of public policy the special execution should not be enforced as provided in the charter, then it should be enforced under the equitable counterclaim. Story's Equity Pleading, secs. 429, 431; Shields v. Thomas, 18 Howard, 252; Pomeroy's Equity Jurisprudence (4 Ed.), sec. 112; Bates v. Comstock, 306 Mo. 312; 10 R. C. L., sec. 106, p. 352; Evans Administrator v. Silvey, 144 Ala. 398; Davis v. Harberg, 33 Miss. 173; Merry v. Freeman, 44 Mo. 518; 183 U.S. 308. (6) In order to have an adequate remedy at law there must be a law giving that remedy and the law must be complete, clear and free from doubt in order to prevent the exercise by the court in equity. 19 Am. Judicature, sec. 114, p. 118; Dawson v. Kentucky Distillery Co., 255 U.S. 288; Davis v. Wakeler, 156 U.S. 680; Schwab v. St. Louis, 310 Mo. 116; Union Pacific Ry. Co. v. Weld County, 247 U.S. 282. (7) The only execution which could be validly issued in the condemnation case was an execution which conformed to the judgment. Such an execution was issued and the sale held thereunder. Section 14057, Revised Statutes 1929; Coe v. Ritter, 86 Mo. 277; McManus v. Price, 246 Mo. 445; Bain v. Chrisman, 27 Mo. 298. (8) While there is no controversy about the issue and sale of Park Fund certificates by the city to Loewenthan Securities Company, the authority to issue and sell them is provided by Section 181 of the charter and it is made the duty of the city to protect the certificates by ...