Bambrick Bros. Construction Co. v. Semple Place Realty Co.

BOND, P. J. Statement. — I. Plaintiff, the Banabrick Brothers Construction Company, a corporation, instituted twenty-one separate actions to enforce the lien of as many special tax bills against separate par-eels of land in St. Louis' owned by the various defendants, said tax bills covering the cost of the construction — 455 — of the second section of the South Harlem Joint District Sewer. The petition in ehch case was similar in form, the variance being the parties defendant and the description of the parcels of land against which the tax bills were issued. The petition pleaded the passage of an ordinance by the city of St. Louis to establish a sewer district to be known as the South Harlem Joint Sewer District; that said district was established and an ordinance passed for the construction of the second section of said Joint District Sewer; that provision was made for the payment of the city’s portion of the cost of same; that plaintiff entered into a contract with the city in accordance with the charter and ordinance; that upon the completion of the work, the President, of the Board of Public Improvements computed the cost and assessed the same as a special tax upon all the property in the South. Harlem District and special tax bills were made out, registered, countersigned and delivered to plaintiff. The petition then alleged the ownership of the lot, the amount computed, assessed and charged against the lots described, the designation of the Franklin Bank as the depositary to receive payment; delivery of notice of the tax bill to the City Marshal, the return on the tax bill that the persons named could not be found, and prayed judgment for the amount of the special tax bill and that .same be adjudged a lien on each particular parcel of land and-that same be sold to pay the amount of the .special tax and costs. ■ • The answer in nineteen of the suits, besides a general denial, averred that plaintiff did not file with the comptroller of St. Louis a written notice of the filing. of the. suits, and in certain of the suits it was averred that certain. proceedings were still pending on behalf of the city of. St. Louis for the condemnation of specified streets. ■Plaintiff’s reply was a general denial and a denial of the new matter of the various. answers. — 456 — By agreement all of the suits were tried together in Division No. 8 of the circuit court of the city of St. Louis. . ' The court rendered final judgment in each of said cases in favor of the plaintiff and against the various defendants and declared -each of said special tax bills a lien upon the particular parcel of land described therein,- together with interest and costs and ordered that the land be sold to pay the same. The defendents appealed. Seven of these appeals are comprised in this record; three are comprised in our Docket No. 18472 and eleven in No. 18473. II. There is no question that the work done by the contractors in this case has gone into the betterment of the property of defendants, nor that it was performed in accordance with the contract under which the work was let; nor that it has enhanced the value- of the property of the defendants as contemplated when the improvements were ordered by the city authorities. [Sheehan v. Owen, 82. l. c. Mo. 465.] The only questions presented by the appeal are certain objections to the validity of the tax bills under the charter provisions of the city of St. Louis. Lot or Parcel of Ground. The first position taken by appellants is that the tax bills are void because not issued-in accordance with section 22 of article 6 of the St. Louis charter, which provided for the issuance of a “special tax bill against each lot or parcel of ground in the joint sewer district, giving the name of the owner thereof,” etc. It is contended that the phrase “lot or parcel of ground” is defined by the following language contained in section 14 of article 6 of the St. Louis charter: “Lot defined — The word ‘lot’ as used in this section shall be held to mean the lots as shown by recorded plats of additions or subdivisions, but if there be no such recorded plat, or if the owners of property have disregarded the lines of lots as platted, and have treated two or more lots or fractions thereof as one lot, — 457 — then the whole parcel of ground or lots so treated as one, shall be regarded as a lot for the purposes hereof.” Also that in view of the evidence showing that at the time of the issuance of the tax hills in suit, the area covered by the recorded plat (according to the subdivisions and boundaries of which the tax bills were issued, known as Semple Place) had been sold out as a body under a prior deed of trust, leaving nothing thereafter but one enclosure for the entire tract; therefore one tax bill should have been issued against the whole tract. It will be noted in comparing the two provisions of the charter that the' latter defining the word “lot” and the sense in which-it is to be used, does not purport in any way to define what shall be the significance of the phrase “parcel of ground.” Unless, therefore, appellants are able to show that the property affected by the tax bills in suit does not disclose the several “parcels of ground” designated in the tax bills, there is no merit in their contention that the judgment in this case fixing a lien on these several parcels of ground, violated the charter. On that- point not only was the recorded plat of Semple Place, as it was subdivided prior to the enforcement of the mortgage on the entire tract, before the trial court, but all the facts and circumstances in evidence bearing on the question of the usage by defendants of the several tracts of land formerly described by that plat, including the testimony tending to show one enclosure, and from all the evidence the learned trial judge evidently found that there were “parcels of ground, the subdivisions whereof were substantially the same as those contained in the recorded plat of Semple Place, against which the tax bills in suit were issuable. The question of fact having been resolved against alpellanfs’ contention that no such distinct parcels of ground” existed at that time, nothing is left for review. [Gannon v. Gas Light Co., 145 Mo. 502.] We conclude, therefore, that the tax bills in this case were not issued without authority under the charter, and that the judg — 458 — merits recovered bv plaintiff were not, for that reason, erroneous. It necessarily follows from this conclusion, that the enforcement of the tax bills-did not contravene the terms of the charter, supra, providing for their issuance, and hence does not amount to a taking of the property of appellants without due process of law. Notice of suit. III. It is also urged by appellants that the judgments in these cases were erroneous for the reason that respondent failed to give written notice within ten days after the institution of the suits, setting forth when and in what court they were brought, and to file the same in ,the office of the comptroller of the city as required by sections 9848, 9849, Revised Statutes 1909, which prescribe the giving of such notice and also the time within which a lien of tax bills shall cease, and the time within which, in the absence of such suits or notices, the tax bills shall be presumed to have been paid and requiring an entry of the expiration of the liens.’ All these suits were commenced in December, 1912, and the notices in question were not given by plaintiff until September 15, 1913. These sections of the statute were not unconstitutional for that, until the present time, no city of the State had attained the population of three hundred thousand except the city of St. Louis, which is the only municipality falling within the description to which the acts under review are applicable. [See title to acts in question, Laws 1909, p. 704.] The propriety, of such a classification according to population has been settled in this State. [State ex inf. v. Southern, 265 Mo. l. c. 286.] Whether the act in question, is obnoxious to the constitutional provision forbidding. the Legislature to pass any local or special law which regulates .“the practice or jurisdiction-of . . .. any judicial proceeding or inquiry before-the courts,’’.etc. . (Constitution, art. 4. sec. 53, par. 17), or whether these acts violate paragraph 32 of section 53 of article 4 of the Constitution, are questions which need not be ruled in the view we take of. the meaning and purpose expressed by the acts. — 459 — It will be observed that' section 1 of the act under review deals wholly with the manner of giving notice in writing within ten days thereafter of the filing of a suit to a special tax bill and the record of such notice 'in the office where the record of such special tax bills •is required to be kept. . ’ “Sec. 1. .'Whenever any suit shall be commenced in any city of this State now having, or which may.hereafter have a population of three hundred thousand or more inhabitants, on aiiy ’Special tax bill to enforce the payment of the lien thereof, th.e party'or parties plaintiff shall, within ten days after the commencement of such suit, file with the' comptroller or other officer of such city, in whose office the record of sueh special tax bills is required to be kept, a written notice setting forth when and in which court such suit was brought; and the comptroller or such other officer shall immediately note such facts on the record of such tax bill. “Sec. 2. Tlie lien of every such tax bill shall cease, end and determine in two years after said tax bill, or the last installment thereof, if the same be payable in installments, shall have become due and .payable, unless suit shall have been brought on such tax bill, -and notice of such suit, as hereinbefore required, shall have been given and filed within that time. If within said time no such suit was brought or if within said time no such notice of suit shall have been filed, the tax bill shall be presumed to have been paid, and the comptroller, or other proper officer, shall make am appropriate entry on the record of the tax bill in his office that the lien thereof has expired by lapse of time.” [Laws 19.09, p. 704.] These sections are intended to direct that notice thereof shall be given ten days after suit. They do not condition the right to sue upon the giving of a subsequent. notice, nor the right to maintain a suit for failure to give notice after its institution. Such a notice is not in any sense a summons or other method of giving the court jurisdiction and could answer neither purpose, since it is only enjoined after the suit has been brought and after jurisdiction of the person or property have — 460 — attached. All the objects legitimately within the scope of this notice are subserved if it, as was done in the present cases, is filed before the trial and expiration of the time fixed for the lapse of the. lien of the tax bills. We hold, therefore, that the statutes under review, if valid, do not affect the right of respondent to the judgments obtained under the tax bills in suit. IV. It is finally contended that the judgments should not have sustained the attachments in those cases sued out on the ground of non-residency, nor have awarded the costs of such attachments against the appellants, since they entered their personal appearance To the actions. This assignment of error is well taken. [R. S. 1909, sec. 2298; Bambrick Bros. Const. Co. v. McCormick, 157 Mo. App. l. c. 204.] The judgments herein on the merits were correct and will be affirmed, provided respondent within ten days enters a remittitur of all the costs of the attachments adjudged in its favor. The costs of this appeal are adjudged against respondent. All concur, Blair, J., paragraphs 1, 2 and 3 and result.