United States v. Certain Land in City of St. Louis, Mo.

• Decision Date: 07 September 1939
• Docket Number: No. 12297.,12297.
• Citation: 29 F. Supp. 92
• Parties: UNITED STATES v. CERTAIN LAND IN CITY OF ST. LOUIS, MO., et al.
• Court: U.S. District Court — Eastern District of Missouri

29 F. Supp. 92

UNITED STATES v. CERTAIN LAND IN CITY OF ST. LOUIS, MO., et al.

No. 12297.

District Court, E. D. Missouri, E. D.

September 7, 1939.

Harry C. Blanton, U. S. Dist. Atty., and A. T. Welborn, Sp. Asst. to Dist. Atty., both of St. Louis, Mo., and L. E. Jones, Asst. Atty. Gen.

Douglas H. Jones, Paul Bakewell, Jr., Henry H. Furth and Byron F. Babbitt, Sullivan, Reeder, Finley & Gaines, J. B. Steiner, Salkey & Jones, Polk & Williams, Max Haas, George Eigel, and Oscar E. Buder, all of St. Louis, Mo., for defendants.

Thompson Mitchell, Thompson & Young and Wm. R. Bascom, all of St. Louis, Mo., amicus curiae.

Drake Watson, Asst. Atty. Gen., for the State of Missouri.

Donald Gunn, of St. Louis, Mo., for Collector Wm. F. Baumann of the City of St. Louis, Mo., intervener.

COLLET, District Judge.

In this and a number of other cases of a similar character, the Government has condemned the lands of the defendants lying within the city limits of the City of St. Louis, Missouri, under authority of Acts of Congress for the purpose of acquiring the site for the Jefferson National Expansion Memorial. Many questions preliminary to actual acquisition by the Government have been considered and disposed of. Barnidge v. United States, 8 Cir., 101 F.2d 295. On June 16, 1939, the Government paid into the registry of this Court the amount which, in the opinion of the Secretary of the Interior, was the reasonable value of the real estate involved and on that date obtained a judgment vesting in the Government the fee simple title to the property and obtained an order directing the occupants thereof to vacate the property within sixty days. 40 U.S.C.A. § 258a.

In all of the cases Commissioners have been appointed and have made reports fixing the value of the property taken. In each of these cases the Government has filed exceptions to the Commissioners' awards. In a number of them the property owners have also excepted to the awards. Those exceptions have not been tried. In a number of cases the Government and the land owners have agreed upon a fair value and final judgments fixing the fair value have been entered. In a number of cases including some of those in which final judgments as to the value have been entered and including some in which no agreements have been reached and in which exceptions are still undisposed of, motions have been filed by property owners requesting the distribution to them of the amount paid into Court. This was in response to an announcement by the Court that such motions would be considered. A large number of these motions have been heard and partial distribution has been ordered and made to the proper parties in interest.

In all cases the City of St. Louis has filed a claim for distribution to it out of the funds in the registry of this Court for city, state and school taxes. That claim includes in many instances delinquent taxes, i. e., taxes due and payable in the year 1938 and prior years. In all instances the claim includes a request for the payment to the City of taxes for the years 1939 and 1940. In all instances where partial distribution has been ordered, a sufficient portion of the monies deposited for the acquisition of each tract has been retained in the registry of the Court to cover all of these taxes claimed by the City. In each instance the adjudication of the City's right to payment out of the funds on deposit has been reserved. It is the purpose of the present memoranda to dispose of that legal question in all cases pending in this Court, hence the cases will be referred to generally without reference to any individual case or defendant. The legal question is identical in all the cases.

Three general questions are presented. They may be stated in the language of counsel for the City as follows:

1. When do delinquent taxes against property in this area cease to draw the interest and penalty provided for by the general revenue laws of the State of Missouri?

2. Was the property in question liable for taxes for the calendar year 1939 and if not for all of said year for what portion thereof? Does that liability extend to the money now on hand in the registry of the Court?

3. Is the property in question liable for taxes for the calendar year 1940 and does that liability extend to the money now on hand in the registry of the Court?

Necessarily, the determination of these questions involves a consideration of the Missouri Statutes relative to taxation and the construction thereof by the Missouri Courts. But, first, the issue may be somewhat narrowed. It seems to be conceded, as well it might, that the fund on deposit in the Registry of the Court stands in the place of the real estate condemned and is subject to the claim of all lienholders for the payment of the amount of their lien which had attached to the real estate at the time of the appropriation of the property by the Government. Thompson v. Chicago, S. F. & C. Ry. Co., 110 Mo. 147, 19 S.W. 77; Ross v. Kendall, 183 Mo. 338, 81 S.W. 1107; Buchanan v. Kansas City, 208 Mo. 674, 106 S.W. 531, 15 L. R.A.,N.S., 834; Municipal Securities Co. v. Kansas City, 195 Mo.App. 464, 193 S. W. 880. It is, therefore, of paramount importance to determine when the lien of the taxes attach to the real estate condemned. Therefore, the first question presented, as stated above, will be laid aside for the present.

Were the taxes for the year 1939 a lien upon the property on the date the Government took title to it and paid the estimated fair value of the property into Court — that date being June 16, 1939?

Section 9747, R.S.Mo.1929, Mo.St.Ann. § 9747, p. 7868, imposes upon all real property a lien in favor of the state for all taxes thereon, that lien to continue in force until all taxes, forfeitures, back taxes and costs have been fully paid or the land sold or released but it does not fix the time when the lien shall attach: "§ 9747. * * * real property shall in all cases be liable for the taxes thereon, and a lien is hereby vested in favor of the state in all real property for all taxes thereon, which lien shall be enforced as hereinafter provided in this chapter; said lien shall continue and be in force until all taxes, forfeitures, back taxes and costs shall be fully paid or the land sold or released, as provided in this chapter."

Section 9746, R.S.Mo.1929, Mo.St.Ann. § 9746, p. 7867, imposes upon the person owning real property on June 1st, the obligation to pay the taxes on that property: "§ 9746. Every person owning or holding property on the first day of June, including all such property purchased on that day, shall be liable for taxes thereon for the ensuing year."

Many Missouri cases deal with the question of whether the purchaser or the seller of real estate shall pay the taxes as between themselves. But that question involves a personal responsibility as between the former owner and the purchaser which must not be confused with the question involved here.

Blossom v. Van Court, 34 Mo. 390, 86 Am.Dec. 114, and McLaren v. Sheble, 45 Mo. 130, are cited in support of the argument that the lien of the taxes attaches as of the date of the assessment. In each of those cases, the question at issue was the responsibility for the payment of the taxes as between the seller and purchaser. The Court determined that question by a determination of when the lien attached and reached the conclusion that the lien attached as of the date of the assessment. At the time each of those cases was determined the Statute Law was somewhat different than now. The Statute imposing the lien was as follows (section I, article 5, R.S.Mo.1835, page 541): "All taxes laid upon lands and town lots, whether for state or county purposes, and all penalties and interest imposed or charged for the nonpayment of taxes, shall be liens upon the lands charged therewith, until payment or forfeiture, notwithstanding any change of title, by deed, judgment or otherwise."

Its predecessor statute more definitely fixed the meaning of the term "laid". It is as follows (Territorial Laws, 1804-24, section 17, chapter 299, page 735): "There shall be a perpetual lien on all lands, houses and lots made taxable or subject to taxation by this Act, for the payment of taxes, and the arrearages of taxes, which shall be assessed, or which ought to have been assessed thereon; and no sale or transfer thereof shall in any manner affect the lien on the lands, houses and lots as aforesaid."

It is obvious from a reference to these two ancient statutes that the lien of the taxes was understood to attach to all property which had been assessed or to all property upon which taxes had been "laid". The present statute relative to the lien (Section 9747, supra) makes no such provision. Hence, the cases referred to do not determine the present question.

The case of State ex rel. and to Use of Waddell v. Johnson, 316 Mo. 21, 296 S. W. 806, is cited in support of the proposition that the taxes become a lien on the assessment date. The expression of the Court, 316 Mo. loc. cit., 296 S.W. 806, on the question involved here was obiter, correctly defined by a gentleman from Arkansas as — "That useless chatter of judges, indulged in for reasons known only to them, to be printed at public expense."

The same learned Judge, who spoke for the Court in the Waddell case, three years later in McAnally v. Little River Drainage District, 325 Mo. 348, loc. cit. 354, 28 S. W.2d 650, loc. cit. 651, said: "The lien of the state for taxes is established by an assessment of all land for that purpose. Sec. 9747. However, said lien does not accrue and become a fixed encumbrance until the amount of the tax is determined by an annual assessment of the land and annual levy of the tax. * * * The intention of the Legislature could not have been otherwise, for, as argued by respondents, `Can a lien exist until the amount of the charge has been determined? Can a charge be cancelled until it has been created? Can a...