FRED J. SCHWAB, Plaintiff in Error, v. CITY OF ST. LOUIS.
SUPREME COURT OF MISSOURI, Division One
July 30, 1925.
310 Mo. 116
It follows that the judgment in favor of Jahn Mayer and Mayer Coal Company is reversed, and the cause is remanded with directions to the circuit court to so modify its judgment as to make them liable, along with the Fidelity Fuel Company, for the amount adjudged to be due plaintiff. Further, that the judgment so entered pursuant to these directions be made to bear interest as of date of the original judgment. It is so ordered. All concur, except Atwood, J., not sitting.
FRED J. SCHWAB, Plaintiff in Error, v. CITY OF ST. LOUIS.
Division One, July 30, 1925.
1. CLOUD ON TITLE: Void Lien: Legal Acumen: Jurisdiction of Equity. If the defect or invalidity of the lien, alleged to be void, is such as to require legal acumen to discover it, whether it appears upon the face of the record or proceedings, or is to be proven aliunde, the powers and jurisdiction of a court of equity may be invoked to remove it as a cloud on the title. A court of equity has jurisdiction to determine the validity of the liens of benefit judgments and assessments against plaintiff‘s lands, alleged to be now void, because the charter provision making special benefit assessments a lien for ten years is contrary to the Constitution and statutes, and having determined such question to remove or uphold said liens.
3. BENEFIT ASSESSMENTS: Judgment: Five-Year Limitation: Conflict of Charter with Statute. Under the existing charter of St. Louis condemnation benefit assessments are final judgments of the circuit court, upon which special executions may issue for the collection of benefits so found due. They are not mere ministerial or administrative acts of officials or agents designated by legislative enactments fixing the amount of the special tax, to be collected as general taxes are collected, or as may otherwise be provided by law. The charter of 1914 provides a complete and effective method of assessing damages and benefits in condemnation proceedings by and through the appointment of commissioners as agents of the tax assessing authority and the confirmation of their report in a judicial or quasi-judicial proceeding in the circuit court, аnd when that procedure is duly followed the commissioners’ report, when confirmed by the circuit court, is final and conclusive, and becomes a final judgment upon which execution may issue to collect the benefit assessments; and therefore the city is not required to bring any subsequent suit to enforce their collection, and hence there is no lack of harmony between said charter provision and
4. JUDGMENT: On Benefit Assessment: Lien for Ten Years: Conflict with Statute. Judgments for the collection of local assessments and special benefits are in rem, not in personam, and can only be for the enforcement of the lien against the particular property assessed, and as the General Assembly has not enacted a general law fixing the duration of the lien of such a judgment a city under a general charter, such as St. Louis, may fix the duration of the lien at ten years from the entry of the judgment of confirma-
5. ————: ————: ————: Special Law. The Charter of St. Louis in providing that a judgment on a special benefit assessment against land shall be a lien for ten years does not conflict with the provision of the
6. ————: ————: ————: Reasonable. There are reasonable and just grounds for a provision in a city charter that a judgment on a special benefit assessment shall be a lien on the lot for a longer period than thrеe years, where it contains a further provision that such assessments, in case of a vast improvement, may be paid in seven annual installments, and that bonds may be issued, payable out of money collected upon such assessments.
7. PETITION: Cause of Action: General Demurrer Sustained: Grounds Assigned. Although the trial court assigned a wrong reason for sustaining a general demurrer to plaintiff‘s petition, charging that it did not state facts sufficient to constitute a cause of action, if the judgment was general and final, and the petition did not state a cause of action, the judgment will be affirmed on appeal.
Corpus Juris-Cyc. References: Constitutional Law, 12 C. J., Section 323, p. 840, n. 83; Section 347, p. 855, n. 51. Equity, 21 C. J., Section 27, p. 50, n. 32; Section 106, p. 131, n. 39. Municipal Corporations, 28 Cyc. p. 1145, n. 59; p. 1186, n. 27; p. 1202, n. 10; p. 1210, n. 56; p. 1230, n. 98; p. 1242, n. 82 New. Quieting Title, 32 Cyc. p. 1305, n. 2; p. 1314, n. 58. Statutes, 36 Cyc. p. 1013, n. 64.
Writ of Error to St. Louis City Circuit Court.—Hon. Frank Landwehr, Judge.
AFFIRMED.
L. M. Hall for plaintiff in error.
Oliver Senti, City Counselor, and Daniel Bartlett, Associate City Counselor, for defendant in error.
(1) A special judgment for benefits against specific property is a lien on such property for ten years from the entry of the judgment. Article XXI, sec. 8, City Charter. (2) If Article XXI, Section 8, of the charter is unconstitutional because of an alleged conflict between the charter provision and the laws and Constitution of Missouri, that fact would always appear to the court without the necessity of any evidence whatsoever. The courts take judicial notice of the Constitution, the laws and the charter of the city.
SEDDON, C. — Writ of error to review the final judgment of the Circuit Court of the City of St. Louis, sustaining defendant city‘s demurrer to plaintiff‘s second amended petition and discharging defendant without day, with costs of suit, plaintiff having declined to plead further.
Plaintiff‘s second amended petition is a bill in equity, cast in two counts, to remove alleged clouds on plaintiff‘s title to certain city lots within the city of St. Louis. The salient facts pleaded are that plaintiff is the owner in fee simple and in actual possession of the several lots described in the petition, having acquired title thereto by purchase at public sale for valuable consideration, on February 27, 1922; that on February 17, 1916, in said St. Louis Circuit Court, the city of St. Louis in a certain condemnation suit or proceeding, wherein one Benjamin Biel, the then owner of said lots, was a defendant, was awarded certain separate judgments for benefits against the said Biel as the owner of the several lots, which judgments were declared to be special liens upon said several lots, and are recorded in Condemnation Record No. 7, at page 446 and following, of the records of said circuit
Defendant‘s demurrer is general, averring that the petition does not state facts sufficient to constitute a cause of action against defendant, and that it appears by plaintiff‘s own showing that he is not entitled to the relief prayed.
Upon sustaining defendant‘s demurrer to the petition, the trial chancellor filed a memorandum stating the reason for his action, thus: “It is the opinion of the court that the remedy sought by plaintiff in a direct proceeding will not lie. It would be different in a case of this kind were the city of St. Louis to attempt to execute. The plaintiff might then make his attack accordingly, but, until such time as the property is threatened, an action of this kind by plaintiff cannot be maintained.”
I. Defendant in error at the outset insists that, because of the repugnant allegations of plaintiff‘s petition or bill, a court of equity has no jurisdiction to entertain the bill. It is argued that plaintiff‘s bill seeks to remove alleged clouds on the title to real estate, cast thereon by reason of certain apparent liens imposed by Section 8, Article XXI, of the St. Louis Charter, but which charter provision plaintiff alleges to be unconstitutional and void for the reason that it is not in harmony with and subject to the Constitution and general laws of this State; that an unconstitutional charter provision is void and of no effect and a lien pretended to be based thereon is no lien at all. Hence, it is argued that, inasmuch as all courts of the State must take judicial notice of the St. Louis Charter
Opposing the foregoing contention, plaintiff in error relies upon the so-called “legal acumen” doctrine, early announced by this court in Merchants Bank v. Evans, 51 Mo. 335, and subsequently followed in the majority opinion in Verdin v. St. Louis, 131 Mo. 26; Jewett v. Boardman, 181 Mo. l. c. 657; Pocoke v. Peterson, 256 Mo. l. c. 518; Maxwell v. Growney, 279 Mo. 113; and in the late case of Mahen v. Ruhr, 285 Mo. l. c. 506. So it would appear from the foregoing decisions that that doctrine is fairly well established in the jurisprudence of this State. The doctrine announced by those cases is that, if the defect or invalidity is such as to require legal acumen to discover it, whether it appears upon the face of the record or proceеdings, or is to be proven aliunde, then the powers or jurisdiction of a court of equity may be invoked to remove the cloud. We believe that the question here raised by plaintiff‘s petition, which goes to the validity of the liens of the benefit judgments or assessments now affecting plaintiff‘s title and makes necessary a judicial determination of the validity and constitutionality of the provision of the St. Louis Charter fixing the length and duration of
Furthermore, as said in 16 Cyc. 41: “The existence of a remedy at law does not deprive equity of jurisdiction unless such remedy be adequate. By this is meant that it must be clear, complete and ‘as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.‘”
In Pocoke v. Peterson, 256 Mo. l. c. 519, wе said: “Moreover, to oust jurisdiction in equity the remedy at law must be so complete that it attains the full end and justice of the case, reaching the whole mischief and securing the whole right of the party in a perfect manner at the present time and in the future. [Hanson v. Neal, 215 Mo. l. c. 279, et seq.]”
Must plaintiff sit idly by with folded hands and wait several years until the defendant city shall undertake to levy executions upon his property with the purpose of selling it at judicial sale and then, and not till then, by motion to quash the executions, or by other remedy at law, raise the question of the validity of the benefit assessment liens? Surely, no. The liens are apparent upon the public records and, until their validity and effect is judicially determined, they necessarily hinder the plaintiff in the free and unrestricted use and disposition of his property, thereby casting a cloud upon his title. He is entitled not only to a future, but to a present remedy, which is afforded only by a suit in equity to remove the cloud. Equity has exclusive jurisdiction to remove a hurtful cloud upon a land title. [Pocoke v. Peterson, supra.] It clearly appearing from plaintiff‘s bill that its purpose is to remove an apparent cloud upon his title, the circuit court, sitting in equity,
II. It next becomes necessary for us to determine whether, under the scheme and provisions of Chapter XXI of the St. Louis Charter, adopted by vote of the people of that municipality in 1914, condemnation benefit assessments are in any sense final judgments of the Circuit Court of the City of St. Louis, upon which special executions may issue for the collection of benefits so found due, or whether they are mere ministerial or administrative acts of officials or agents designated by legislative enactment in the form of a city charter, fixing the amounts of a special assessment or tax, to be collected as general taxеs are collected, or as may otherwise be provided by law. In discussing this question it is advisable that we here briefly set forth the general scheme or plan of the St. Louis Charter with respect to proceedings for the condemnation of private property for public use and the method of determining the amount of damages for private property so taken or damaged and the assessment of benefits against private property not taken or damaged, in order to create a fund out of which to pay the damages assessed. The whole plan or scheme is embodied in Article XXI of the St. Louis Charter, entitled “Condemnation,” consisting of sixteen separate sections.
Section 1 provides that “condemnation of or damage to private property, real or personal, or any easement or use therein, for public use, shall be effected as
Section 2 provides for the issuance of summons, giving the defendants at least ten days’ notiсe of the hearing on the petition, and for service and return thereof by the city marshal. If the name of any owner is unknown, or if any owner does not reside in the State, a notice giving the general nature of the petition, with a description of the property of such unknown or non-resident owners, and the day fixed for the hearing, shall be published once each week for four consecutive weeks, the last publication to be at least ten days before the hearing, in the newspaper publishing the notices of the court.
Section 3 provides that the court, or judge thereof in vacation, when notice has thus been given, shall appoint three disinterested commissioners, resident freeholders of the city of certain required qualifications, to
Section 4 makes it the duty of the commissioners to ascertain the value of the property proposed to be taken and the actual damage done to private property, and “for the payment of all such damages, the commissioners shall assess against all the lots or parcels of property or interests therein especially benefited by the proposed public work or improvement, separately, and in the names of the several owners thereof, the amount that each such lot or parcel of property or interest therein so assessed shall be especially benefited by the proposed public work or improvement, and against the city the balance of the damages over and above the aforesaid special benefits assessed.”
Section 5 provides: “The commissioners shall view the property to be taken, damaged or assessed; fix the benefit or taxing district; publish in said newspaper for ten days before beginning their assessment a notice оf the boundaries of the benefit or taxing district and of the time and place at which they will assess such damages and benefits; hear the evidence submitted by the parties interested; assess the damages and benefits as of the date said ordinance became effective; and make report, in which at least two commissioners shall concur, of such assessment in writing and under oath to the circuit court. In such report the compensation allowed to and the benefits assessed against each owner shall be separately stated. When the commissioners both assess benefits and allow damages against any one property owner they shall deduct the lesser from the greater.”
Section 8 provides: “The court upon approving the commissioners’ report shall render final judgment thereon reciting the report and adjudging that the city have and hold the property petitioned for, describing the same, for the purposes specified, upon payment of the damages less the benefits assessed in each instance; that so much of the report as is a judgment for benefits against specific property be a lien on such property for ten years from entry of the judgment, and prior to all other liens thereon; and that the city recover the respective benefits in excess of damages assessed in each instance against private property with interest from date of judgment and have execution therefor.” The clerk of the court is required to make and deliver to the comptroller a copy of such judgment, to be recorded in a book and conveniently indexed for that purpose, and the comptroller may forthwith, and shall, at the expiration of time for appeal, forward a copy of the judgment to the board of aldermen, who shall make an appropriation for the payment out of the city treasury of the damages assessed. The section further provides: “and if any part of such assessment of benefits be not paid when due, special execution shall issue on request of the comptroller against the property charged with the lien, and proceedings thereunder shall conform, as near as may be, to the proceedings under special executions on ordinary judgments foreclosing liens on lands.” (Italics ours.)
Section 15 provides: “Ordinances for appropriating or damaging property for markets, public squares, public parks, and other like public uses and improvements
We have omitted a summary of those sections of the article covering details not specially applicable to the points under discussion.
In approaching a discussion of the question in hand, it may be conceded as well settled and established in this State that, while assessments for special benefits and for local improvements in a broad sense are referable to the taxing power, yet they are not taxes in the general acceptation and use of that term, which usually applies to imposts levied for revenue or governmental purposes only. Such has been the uniform holding of this court. [Ranney v. Cape Girardeau, 255 Mo. 514; Kansas City v. Bacon, 147 Mo. l. c. 282; Farrar v. City of St. Louis, 80 Mo. 379; City of St. Louis v. Ranken, 96 Mo. l. c. 500.]
But, while the determination of what property of the citizens will be benefited by condemnation or other similar public improvements and the actual benefits accruing to each particular tract is in fact the exercise of legislative power, that power may be legally delegated by the legislative authority to any appropriate agency. In Houck
The former charter of St. Louis (now superseded by the Charter of 1914, which, as we will hereafter point out, is in many respects radically different from the former charter of that city) was under review by us in the case of St. Louis v. Brinckwirth, 204 Mo. 280, wherein it is held that the delegation of the power of assessing and levying special benefits in condemnation proceedings to commissioners appointed by the circuit court is lawful and a proper exercise of the taxing power. GRAVES, J., delivering the opinion of this court, there said: “So that in our judgment, these commissioners, on the question of benefits, act as assessors for the municipality, in the matter of determining the amount of the special tax against each tract of land, and when the Municipal Assembly approves their report as above stated, the assessment becomes complete, subject only to a review by the court.”
And, in an earlier case, City of St. Louis v. Ranken, 96 Mo. l. c. 507, where a former charter of St. Louis was discussed, we said: “And when the circuit court has taken final action upon the report of the commissioners, and the assembly has appropriated the money to pay the damages for the property taken, such assessment becomes final and conclusive upon the question of benefit to such taxpayers, and the amount of that benefit, the lien attaches to the property, and these questions cannot be again raised in any subsequent suit that the city may
Again, in In re Birmingham Drainage District, 274 Mo. 140, we said: “Although article three of the State Constitution, while distributing the powers of the State Government into three distinct departments — the legislative, executive and judicial — forbids any person or collection of persons charged with the exercise of powers properly belonging to one of those departments to exercise any power properly belonging to either of the others, we have held (State ex rel. v. Higgins, 125 Mo. 364, 368) that duties which are not judicial may be performed by judicial officers unless they are clearly such as are confined by the Constitution itself to the executive or legislative department. This literal and altogether reasonable construction is founded in the necessities inherent in all governments. . . . Upon principle as well as upon authority, the doctrine is well settled in this State that the Legislature might itself from its own information fix the boundaries of an incorporated drainage district; and also fix the amount of spеcial assessments for the performance of the work, placing the same at a level rate founded upon a unit of drainage area or upon a proceeding to ascertain the actual benefit accrued to each particular tract; and that it might also delegate any or all these powers to an appropriate agency to be chosen or created by it. There is no more reason to say that it must call to its assistance a court of general jurisdiction in such cases than that it should require the judgment of a court of general jurisdiction in applying the frontage system as a basis for taxation for street improvements or in the assessment of lands for general taxation. In either case, it appoints its own agent and if that agent be a court it may make the power of that court as full and final as if it were vested in a board of commissioners or an assessor.”
It, therefore, appearing to be clearly established that the legislative power of levying assessments for condemnation benefits may lawfully be delegated to judicial
By the St. Louis Charter of 1914, here under review, the charter framers, evidently having in mind our ruling in the Brinckwirth case, in Section 8, Article XXI,
In St. Louis v. Bell Place Realty Co., 259 Mo. 126, the former charter of St. Louis was construed in conjunction with a general ordinance, effective since our decision in the Brinckwirth case, providing that, “if the benefits assessed are not paid or satisfied as provided by charter or ordinance, they shall be collected by either execution or suit upon such final judgment confirming the same.” In that case, Division Two of this court, speaking through BROWN, J., said: “In view of the fact that other proceedings may be instituted to establish streets in St. Louis, it is appropriate for us to pass upon the jurisdictional questions tendered by appellants, who assert that, under the rule of law announced by this court in the case of City of St. Louis v. Brinckwirth, 204 Mo. 280, the circuit court could not acquire jurisdiction to render final judgment against dеfendants for the alleged benefits assessed against their lands, and that execution cannot issue for such benefits. The Brinckwirth case is quite unlike the one now before us.” The writer of the opinion then reviews at some length the charter and ordinance provisions effective at that time in St. Louis in condemnation proceedings, and arrives at this conclusion: “Under the charter provisions and ordinance before quoted there exists no substantial ground for appellants’ contention that final judgment cannot be
While it may be said that the above quoted language of this court in the Bell Place Realty Company case was not necessary to a decision in that case and, hence was obiter dictum, yet we find the reasoning and conclusion of law there announced to be sound and particularly applicable to the question now before us in the instant case.
Our conclusion and holding upon this point is clearly supported by the recent ruling of this court in Kansas City v. Field, 285 Mo. 253, a case involving a similar provision of the Kаnsas City Charter of 1898 relating to condemnation of lands for park purposes. The Kansas City Charter, like the St. Louis Charter now under review, provided for the ascertainment of damages for lands taken and benefits accruing to lands not taken by a jury of freeholders, subject to confirmation of the jury‘s verdict or report by judgment of the Circuit Court of Jackson County. It further provided for collection of the benefit assessments “by special execution or executions against the lot, tract or parcel of land charged with the lien thereof.” It was contended in that case that Kansas City might, by a proceeding in equity as distinguished from the method laid down by the charter, enforce the lien of such benefit assessments. Said this court (285 Mo. l. c. 275), speaking through GOODE, J.: “As we have said above, a remedy was provided in the Kansas City Charter for the collection of assessments against the defendant‘s lots, and an effective one. Whether the judgment entered upon the verdict of the jury, making assessments for improvements, is a judgment in the full sense and with the ordinary incidents of one, we deem an immaterial question in the present case. Whatever may be the nature of the judgment and whether the lien inhered in the assessment itself as declared by the verdict, or in the judgment entered on the verdict, or in both, the lien was not enforcible until a judgment confirming the verdict had been rendered — was at most with-
Adverting to Section 5 of Article XXI of the existing charter of St. Louis, we find that it is mandatory and obligatory upon the commissioners to “publish in said newspaper (publishing at the time the notices of said circuit court) for ten days before beginning their assessment a notice of the boundaries of the benefit or taxing district and of the time and place at which they will assess such damages and benefits.” The publication of such notice, when duly had, amounts to due process of law and confers upon the circuit court jurisdiction to approve the commissioners’ report assessing benefits against the property not taken or damaged. [St. Louis v. Ranken, 96 Mo. l. c. 507; St. Louis v. Calhoun, 222 Mo. l. c. 53.] In St. Louis v. Bell Place Realty Co., 259 Mo. l. c. 140, it is said: “Thus finding that the publication of the five days’ notice prescribed by Section 1069, Ordinances of St. Louis, would give the commissioners jurisdiction to assess benefits and confer upon the circuit court jurisdiction to approve their report and render judgment thereon, it follows that such judgment when entered is final and not subject to collateral attack. The aforesaid charter specifically provides that the circuit court upon the filing of the report of the commissioners,
Chapter XXI of the St. Louis Charter of 1914 provides a clear, complete and effective method of assessing damages and benefits in condemnation proceedings by and through the appointment of commissioners as agents of the tax assessing authority and the confirmation of their report in a judicial or quasi-judicial proceeding in the circuit court of that city, and, from what we have here said, when the charter procedure has been duly and regularly followed, the commissioners’ report, when confirmed by the circuit court, is final and conclusive and becomes a final judgment upon which special executions may issue to collect the benefit assessments. Such being the case, the municipality is not required to bring any subsequent suits to enforce the collection of benefit assessments thus levied, and there is clearly no lack of harmony between the charter provision in question and
III. Plaintiff in error contends that, if the special judgments rendered by virtue of Article XXI of the St. Louis Charter of 1914 are judgments upon which executions can issue (and we here so hold), then Section 8 of said article, which provides “that so much of the (commissioners‘) report as is a judgment for benefits against specific property be a lien on such property for ten years from entry of the judgment” is illegal and void
Plaintiff in error argues therefrom that, by reason of the foregoing general statute of the State and the quoted provisions of our Constitution, the liens of the special judgments for benefits laid against his property by the city of St. Louis expired in three years from the rendition of said judgments, and, not having been revived by scire facias within that time, the liens no longer exist and the apparent record of the same constitutes a
Plaintiff in error, in support of his contention, leans heavily upon Eyssell v. St. Louis, 168 Mo. 607, and Kansas City v. Field, 270 Mo. 500. In the Eyssell case, MARSHALL, J., delivering the opinion of this court, in discussing the subject of judgments for special assessments in condemnation proceedings under the then existing St. Louis charter, remarked: “Such being the nature and character of the judgment in such cases, it follows that while the special benefit is a liability created by law, it is not such a liability as is barred by limitation in five years, under Section 6775, Revised Statutes 1889, because it is a judgment, which while a liabilty created by law, is nevertheless expressly excepted by that section. And being a judgment of the circuit court, the lien thereof expires in three years, under Section 6012, Revised Statutes 1889 [
Kansas City v. Field, 270 Mo. 500, involved the construction of the article of the Kansas City Charter of 1898 relating to park condemnations, which provided that the lien of assessments for special benefits “shall continue against each lot or parcel assessed until the assessment against such lot or parcel has been paid or collected in full, both principal and interest.” It was there held by Division Two of this court that the quoted charter provision was not in harmony with
Another phase of the same litigation was later before Division One of this court in the recent case of Kansas City v. Field, 285 Mo. 253, where, after referring to Judge FARIS‘s opinion in Kansas City v. Field, 270 Mo. 500, GOODE, J., speaking for this Division, said: “The exact point in decision (in that case) was that the judgment was presumed to be paid after ten years and could not be enforced thereafter by an excution, the court having no occasion to decide whether there was a lien arising from the verdict of the jury which was independent of the judgment, and enforcible in equity. . . . The Charter of Kansas City prevents an assessment lien, confirmed by a judgment, from expiring in three years, as the lien of an ordinary judgment does unless revived. [
We see no lack of harmony between Section 8, Article XXI, of the St. Louis Charter of 1914, and
Section 15, Article XXI, of the St. Louis Charter of 1914, provides that ordinances condemning property for certain vast improvements, such as markets, public squares, public parks, and other like improvements, may provide for payment of the special benefit assessments in either one installment or in equal annual installments not to exceed seven in number, and that section furthermore provides that, for the purpose of anticipating the
It follows from what we have here said that, there being no lack of harmony between the section of the St. Louis Charter under review and the Constitution and general laws of this State, the petition of plaintiff in error fails to state facts sufficient to constitute a cause
The judgment nisi was right and the same is accordingly affirmed. Lindsay, C., concurs.
PER CURIAM: — The foregoing opinion by SEDDON, C., is hereby adopted as the opinion of the court. All of the judges concur, except Woodson, J., dubitante.
SEDDON, C.