William R. Bush Construction Company v. Withnell

• Decision Date: 06 April 1915
• Citation: William R. Bush Construction Company v. Withnell, 175 S.W. 260, 190 Mo.App. 33 (Mo. App. 1915)
• Parties: WILLIAM R. BUSH CONSTRUCTION COMPANY, Respondent, v. WILLIAM W. WITHNELL et al., Appellants
• Court: Missouri Court of Appeals

175 S.W. 260

190 Mo.App. 33

WILLIAM R. BUSH CONSTRUCTION COMPANY, Respondent, v. WILLIAM W. WITHNELL et al., Appellants

Court of Appeals of Missouri, St. Louis

April 6, 1915

Appeal from St. Louis City Circuit Court.--Hon. W. B. Homer, Judge.

Judgment affirmed.

E. T. & C. B. Allen for appellant.

(1) The trial court correctly decreed that the plaintiff was not entitled to interest or penalty before the institution of the suits, because no notice of the amended tax bill was ever served on any of the defendants. Paving Co. v. Peck, 186 Mo. 520; Seaboard Nat'l Bank v. Woesten, 176 Mo. 49; Eyerman v. Blaksley, 78 Mo. 152; St Joseph v. Forsee, 115 Mo.App. 510; Perkinson v Schnaake, 108 Mo.App. 255; Stifel v. McManus, 74 Mo.App. 564; Eyermann v. Provenchere, 15 Mo.App 271. (2) Plaintiff's suit was prematurely brought and should be dismissed. Heard v. Ritchey, 112 Mo. 519; McCoy v. Farmer, 65 Mo. 249; Lawler v. Vette, 166 Mo.App. 352; Duryee v. Turner, 20 Mo.App. 34. (3) Service of the notice of the issuance of the tax bills determined their maturity and was a condition precedent to defendants' liability. Trinidad v. Hokasona, 178 F. 440; Simerson v. Railroad, 173 F. 612; Trust Co. v. Gibson County, 145 F. 874; Veginan v. Morse, 160 Mass. 143; Estes v. Tower, 102 Mass. 66. (4) Assuming the constitutionality of the charter provisions, yet they were not constitutionally applied under the facts of this case and are invalid. Their application resulted in the confiscation of defendants' property. Briscoe v. Rudolph, 221 U.S. 547; Martin v. District of Columbia, 205 U.S. 139; Raymond v. Traction Co., 207 U.S. 20; Seattle v. Kelleher, 195 U.S. 358; Norwood v. Baker, 172 U.S. 277; Hagar v. Reclamation Dist., 111 U.S. 701; Postal Cable Co. v. New Hope, 192 U.S. 55; Postal Cable Co. v. Taylor, 192 U.S. 64; English v. Arizona, 214 U.S. 359.

Edw. C. Kehr for respondent.

(1) The special tax bills sued on were issued in exact conformity to the charter of St. Louis as now definitely settled by the Supreme Court of this State. Charter of St. Louis, Art. 6, secs. 14, 24 and 25; Collier Estate v. Western Pav. & S. Co., 180 Mo. 362; Meier v. St. Louis, 180 Mo. 391; State ex rel. Pav. Co. v. St. Louis, 183 Mo. 230; Construction Co. v. Shovel Co., 211 Mo. 524; State ex rel. v. St. Louis, 211 Mo. 591; Gilsonite R. & P. Co. v. St. Louis Fair Assn., 231 Mo. 589; Granite B. & Pav. Co. v. Fleming, 251 Mo. 210. (2) It is conclusively settled by the decisions of the Supreme Court of Missouri and the Supreme Court of the United States, that special tax bills for local assessments do not violate the Fourteenth Amendment to the Federal Constitution. Barber Asphalt Pav. Co. v. French, 158 Mo. 334; Meier v. St. Louis, 180 Mo. 391-408-9; French v. Barber Asphalt Pav. Co., 181 U.S. 324; Shumate v. Heman, 181 U.S. 403; Tonowanda v. Lyon, 181 U.S. 389; Chadwick v. Kelly, 187 U.S. 540; Schaefer v. Werting, 188 U.S. 516; Railroad v. Barber Asphalt Co., 197 U.S. 430. (3) Whether the owner's property will be benefited by a local improvement is a legislative question which is determined in the affirmative by the Municipal Assembly when it passes the ordinance for the improvement. Prior v. Construction Co., 170 Mo. 439-51; Gilsonite Co. v. St. Louis Fair Assn., 231 Mo. 590; Railroad v. Barber A. P. Co., 197 U.S. 434. (4) A special tax bill, whether void, voidable or merely imperfect as issued, may be amended within the time limited for its enforcement. Vieths v. Planet Co., 64 Mo.App. 207. The city can be compelled by mandamus to cancel an imperfect or erroneous special tax bill and to issue in lieu of it a complete and valid bill. State ex rel. Paving Co. v. St. Louis, 183 Mo. 230. The amendment made by the Board of Public Improvements by adding the names of the remaindermen to that of the life tenant, as owners of the property, was within its power and was properly made. (5) A special assessment for a local improvement is a charge upon the land, but not against the owner; the latter incurs no personal liability. The property itself and not the owner is the debtor for the amount of the assessment. Barber Asphalt Co. v. St. Joseph, 183 Mo. 456. The tax bill issued by the president of the Board of Public Improvements and countersigned by the Comptroller is a lien on the property from its date. Anderson v. Holland, 40 Mo. 600; Mercantile Trust Co. v. Niggeman, 119 Mo.App. 62. Notice of the issuance of the tax bills having been served on the life tenant, a further notice to the remaindermen, whose names were subsequently added by amendment, was not a condition precedent to the right of action on the tax bills. No authority is cited to sustain defendant Withnell's proposition and none, I assume, can be found, although the charter amendment in question has been before the courts constantly since its adoption. Fruin v. Meredith, 145 Mo.App. 604. (6) The seisin of land is in the life tenant. During the continuance of the life estate he represents the property and must pay the taxes, keep it in repair, pay the interest on encumbrances and protect the title. Where he pays for permanent improvements, he is entitled to contribution from the remaindermen. 1 Cooley on Taxation (3 Ed.), 732; 1 Minor on Real Property, paragraph 219; Reyburn v. Wallace, 93 Mo. 326; Bobbs v. Wolfe, 54 Mo.App. 515; Taylor v. Planet P. & I. Co., 78 Mo.App. 137-9; Hildenbrandt v. Wolff, 79 Mo.App. 334; Berry v. Stigall, 125 Mo.App. 268. (7) If the court should be of opinion that the notice served on the life tenant in July, 1907, was not sufficient to start the running of interest against the remaindermen, we call attention to the fact that in this State the institution of the suit is a sufficient demand and that interest runs from that date. This applies to all classes of cases. Evans v. W. Brass Mfg. Co., 118 Mo. 549-55; Williams v. Railroad, 153 Mo. 489; Trimble v. Railroad, 180 Mo. 574-87; Commission Co. v. Real Est. Co., 120 Mo.App. 432. A demand before suit is not a condition precedent to the recovery on a special tax bill, but where no demand is made interest runs only from the date of the suit. Eyermann v. Provenchere, 15 Mo.App. 256. The bringing of the suit was a demand in and of itself and from that date the penalty started. Paving Co. v. Peck, 186 Mo. 520.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

This is a suit on a special tax bill. Plaintiff recovered and defendants prosecute the appeal.

The tax bill sued upon was issued to plaintiff on June 29, 1907, in the amount of $ 3783.09, representing special assessments made to compensate the construction of a street--that is, Compton avenue between Meramec and Neosho streets--in the city of St. Louis. On the trial, a number of defenses were interposed touching the validity of the assessment. The court having found the issue and given judgment for plaintiff on these, an appeal was prosecuted to this court by defendants and the case was transferred to the Supreme Court because of the constitutional questions involved, as will appear by reference to Bush Construction Company v. Withnell, 185 Mo.App. 408, 170 S.W. 361. Subsequently, the Supreme Court returned the case to this court, in the view that the several constitutional questions were concluded by prior decisions of that tribunal.

On an examination of the record and the motion for a new trial, it is obvious that the only question which remains for consideration relates to the argument that the suit was prematurely instituted. Touching this matter, the motion for a new trial recites: "The court erred in rendering a judgment against defendants' property in favor of plaintiff when on the undisputed facts the cause was prematurely brought, and the judgment should have been for the defendants." The facts relevant to a consideration of this proposition will be succinctly stated.

It appears that defendant William W. Withnell is the life tenant of the real estate against which the assessment for benefits evidenced by the tax bill in suit is levied and that the several other defendants are the remaindermen in the property. In other words, the lot of ground against which the tax bill was issued was formerly owned by William W Withnell's father, and he, by his last will, devised it to his son, William W. Withnell, for life, with remainder over to his children as remaindermen, who are also defendants. By competent proceedings to that end, Compton avenue, a public street of the city of St. Louis, was constructed and the assessment made against the lot for the benefits accruing to it on account of such street. The tax bill in the amount of $ 3783.09 was issued to plaintiff, the contractor, in compensation for the construction of the street, on June 29, 1907. William W. Withnell, the life tenant, alone was mentioned in the tax bill, as the owner of the property. On July 5, 1907, notice of the issuance of the tax bill was duly served by the city marshal upon William W. Withnell, the life tenant, in accordance with section 25 of the city Charter and the amendment of 1901 theretofore adopted. In accordance with the amendment of 1901 to the Charter, the tax bill was made payable in installments, and though notice was served on William W. Withnell, the life tenant, on July 5, 1907, none of the installments thereof have been paid. About twenty-three months after the tax bill was issued, it was presented to the proper city authorities for amendment, by inserting the name of the several remaindermen therein together with the life tenant, as owners of the property. Thereupon, on June 15, 1909, the tax bill was duly amended by inserting the names of the defendants other than the life tenant--that is, the several remaindermen therein--as owners of the property as well as the life tenant. ...