Fruin v. Meredith

122 S.W. 1107, 145 Mo. App. 586, 1909 Mo. App. LEXIS 328

Opinion

REYNOLDS, P. J.

(after stating the facts).

While counsel for appellants saved exception to the giving of the declarations of law on behalf of plaintiff and to the refusal to give two of the three which defendants asked, in presenting the case to us, they make but three points: First, that suit had not been brought on the taxbills within two years after date of the bills, the bills being dated January 5, 1906, the suit having been brought January 11, 1908, and no installments having been ever paid, that the lien had expired under the provisions of section 25, article 6, of the Charter of St. Louis; second, that the purchase of the lots by the defendant Meredith, and the erection of improvements thereon and subsequent use thereof, in total disregard of platted lot lines, made the four lots but one lot, for the purposes of this assessment, and therefore but one taxbill should have been issued against the property instead of separate bills for each of the original lots; and third, that the undisputed evidence shows that the improvements erected upon the consolidated lots made up of lots 1, 2, 3 and 4, fronted on Florissant avenue, and it was therefore improper in defining the taxing district for the improvement of Warne avenue to include the whole of the lot to Mary avenue; that the line should have been drawn through the property midway between Warne and Mary avenues so as to include only one-half of the property.

Taking up the propositions involved in the order named, we cannot agree with the contention of the learned and experienced counsel for appellants, that the suit is barred on these taxbills by the special limitation in the charter of the city of St. Louis, as amended in 1901. Counsel for appellants cite no authority for this contention, except section 25, article 6, of the charter of St. Louis, as amended in 1901. This section 25, article 6, provides that the special taxbills authorized by the charter, “for the construction or reconstruction of streets, avenues, highways, boulevards or districts, or joint district sewers, shall be divided into not less than three, nor more than seven, equal parts, as may be provided by the ordinance authorizing such improvements, payable and collectible in installments as follows: The first installment shall become due and payable thirty days after the notice of the issuance thereof, without interest ; the second installment shall become due and payable one year after such notice; the third installment, two years; the fourth' installment, three years; the fifth installment, four years; the sixth installment, five years; and the seventh installment, six years after such notice; provided, however, that the owner or any person having .an interest in the property charged with a taxbill may pay the same in full at any time within thirty days after notice as aforesaid, without interest, and such owner or person having an interest may pay such tax-bills in full at any time by paying interest thereon as follows: If paid at or before maturity and more than thirty days after notice, as aforesaid, at the rate of six per cent per annum from date of notice to date of maturity, and at the rate of eight per cent per annum from date of maturity to date of payment; all interest shall be payable annually from date of notice of the issuance of taxbills. If any installment of any such special tax-bills, or any interest on any installment, be not paid before due, then, at the option of the holder thereof, all remaining installments shall become due and collectible, together with interest thereon as aforesaid. Suits may be brought to enforce the payment of such special taxbills, or any installment or installments® thereof, with any interest due on any installment, in the manner herein provided for the bringing of such suits on other special taxbills.”

Following this is the provision for the limitation of the lien of special taxbills, in which are the following provisions:

“Whenever any special taxbill issued heretofore, or hereafter to be issued, to a contractor or contractors, shall be paid, it shall be entered satisfied on the register in the comptroller’s office, and the lien of any bills so issued that is not entered satisfied within two years after its maturity, unless proceedings in law shall have been commenced to collect the same within that time,' and shall still be pending shall be destroyed and of no effect against the land charged therewith; provided, however, that where bills are not paid in installments, the lien thereof shall terminate within two years after their date, unless such proceedings shall have been commenced within that time and be still pending.”

The real contention over this limitation clause turns upon the meaning of the word “paid” in the proviso. To repeat that proviso as written, it is, “that where bills are not paid in installments, the lien thereof shall terminate within two years after their date, unless such proceedings shall have been commenced within that time and be s'till pending.” The date of these bills was January 5, 1906, notice of issue served January 12, 1906, this action instituted January 11, 1908. Construing the sections together and having reference to the charter before it was amended, we agree with counsel for respondents that this word “paid” as here used, should be read ‘payable,” so that that proviso would read “that where bills are not payable in installments, the lien shall terminate within two years after their date.” We can give the clause no practical or sensible interpretation, unless it is so read. This section 25 of the charter, as it now stands, distinctly gives the right •of payment of these assessments by installments, which “shall be divided into not less than three, nor more than seven, equal parts,” the first installment becoming due and payable thirty days after the notice of issue' thereof, the second installment becoming due and payable one year after notice, and the subsequent installments becoming due and payable at intervals of one year thereafter, so that the seventh installment is due and payable six years after notice of issue, and if the bill is divided into seven payments, the last installment would be due and payable about six years after the notice of the-taxbills. Therefore, if this proviso is to be read literally, right of action on them would have terminated or their lien would have fallen before they were payable. That cannot be. We may suppose this case: That the debtor owner of the property against whom the taxbill is issued, having the right to pay in seven installments, has paid the first within the thirty days after notice, the second one year after notice, the third two years after notice, the fourth three years after notice, and makes default in the payment of the fifth installment. Thereupon, under the law, the sixth and seventh become due and payable. But the unfortunate holder of the taxbills has then lost his lien and cannot enforce payment of it, because more than two years have elapsed after their date. That applies when the bill has been divided into seven installments, which is the maximum number allowed. Mark that the charter provision is mandatory: “Shall be divided into not less than three, nor more than seven, equal parts.” Suppose they are divided into three installments, the minimum. The owner pays the first within the thirty days, the second at the end of or within one year after the notice. He is not in default on the third until the last hour of the last day of the second year has elapsed, and cannot be sued until the beginning of the third year. If sued then, as more than the two years have elapsed, suit is barred, the lien of that installment of the taxbill lost. Any such construction leads to an absurdity, which most certainly is not to be tolerated any more in the construction of charter provisions and ordinances than in statutory law. Surely no such result was contemplated in the use, in this proviso, of this word “paid.” Following the well-settled rule of construction, that laws are to be so construed as to give every part of them effect, and to carry out the manifest intention of the framers and makers of them, and so as to avoid an absurd result, we can arrive at no conclusion other than that this particular word “paid,” construing it in connection with the whole paragraph, is to be read and construed as if the word “payable” had been used. That construction being applied to the case at bar, the claim made as to this action being barred, falls, and there was no error in the action of the trial court in refusing to declare the law as asked by the defendants on this branch of the case.

In support of their second proposition, that the user of the lots by the owners made them but one lot for the purposes of this assessment, and that but one taxbill should have been issued against the property instead of separate bills for each of the original lots, the learned and experienced counsel for defendants cite the charter of the city of St. Louis, art. VI, sec. 14, and these cases: State ex rel. Skrainka v. St. Louis, 211 Mo. 591, l. c. 607; Paving Co. v. Peck, 186 Mo. 506, l. c. 516; Wolfort v. City of St. Louis, 115 Mo. 139, l. c. 144; Kemper v. King, 11 Mo. App. 116; Hill O’Meara Co. v. Sessinghaus, 106 Mo. App. 163; Heman Construction Co. v. Loevy, 64 Mo. App. 430. This is the real point in issue, that is, whether the user of the lots made them one lot. If so, the charter not only requires that they be assessed as one lot, but that the line for assessment should have been drawn midway between Warne and Mary avenues, and not at Mary avenue; in brief, only one-half and not all of their area should have been included for purposes of assessment for the improvement of Warne avenue.

The third proposition advanced by counsel for appellant, that the undisputed evidence in the case shows that the improvements erected upon the consolidated lots made up of the four lots, had a frontage on Florissant avenue and not on Warne avenue, and that it was therefore Improper in defining the taxing district for the improvement on Warne avenue to include the whole of the lot to Mary avenue, but that a line should be drawn through the property midway between Warne avenue and Mary avenue so as to include one-lialf of the property, is so intimately connected with the above proposition that we will discuss them together. As specifically in support of this the case of Collier Est. v. Western Pav. & Supply Co., 180 Mo. 362, is cited. An examination of this, as well as of the other cases above cited, fails to convince us that the action of the lower court in giving and refusing the declarations of law covering this branch of the case, and in finding-contrary to the contention of counsel for appellants, was erroneous. With the plat, and with the testimony of the -witnesses before it on the question of user, it was a question of fact for the trial court to determine whether the user had changed the lots from four lots, as platted, into, one lot. In the instructions given, both for the plaintiffs and the defendants, the trial judge distinctly recognized as law, that user could effect such a change; that they must be treated as one for the purposes of the issue of special taxbills, when they are in fact used as one lot. This is an action at law; it was.so treated by the court and the parties; hence the conclusion of the court on the facts, if that conclusion is supported by substantial testimony, is conclusive upon this court. The principles of law announced in the Collier and Skrainka cases, were, in our opinion, followed in this case, the court, in the case at bar, finding, on the facts, that the lots were to be assessed as four lots, and that the evidence of user had not altered the situation. In the Collier case, on the facts there in evidence, a different conclusion was reached. So that we think that in disposing of this case, the trial court was in entire harmony with the law as handed down in this and in the other cases cited.

Complaint is made of the refusal to give the declaration of law asked by defendants and marked in the foregoing statement (4). If this case had been tried before a jury, it is possible that defendants would, have been entitled to have had that given as an instruction. The parties have a right to have the jury fully instructed on their theory of the law. But this was a trial before the court without a jury and when it appears, as it does in this case, that the trial judge has a correct conception of the law as applicable to the case on trial and has correctly applied it, mere failure to give specific declarations, the principle covered by which is embodied in declarations given, is not ground for reversal. It must appear, to warrant reversal for failure to give a declaration of law asked, that the principle covered by the declaration had either not been given in other declarations or had been incorrectly declared; that the refusal of the declaration shows that the trial judge misconceived the law. That was not the case here. The trial judge recognized through the trial and by the declarations he did give, the principle covered by this fourth refused instruction.

It is suggested by counsel for respondents, in his very fair argument, that the defense that one taxbill should have been issued instead of four, was not raised in the answer of appellants and cannot be considered on appeal. While citing several authorities claimed to be in support of this proposition, counsel very frankly cites us to Cushing v. Powell, 130 Mo. App. 576. An examination of that case shows, that in an exceedingly well-considered opinion by Judge Ellison of the Kansas Oity Court of Appeals, that learned jurist holds that a defense of the character here referred to is admissible under the general issue. Referring to pleading in connection with these special taxbill cases, Judge Ellison says (l. c. 579) : “In this case it was necessary for plaintiff to prove that he had a valid lien subject to enforcement against defendant’s property. It took, of course, several proper steps or legal proceedings to finally take the form of a taxbill as a valid lien on the defendant’s property. The omission of these would prevent the proceeding ripening into a valid taxbill and lien — would show that the lien and bill never had arisen or been brought into existence. Therefore a general denial should let in such evidence.” We think that an application of the rule here so clearly set out answers the suggestion of counsel for respondent. This is a minor consideration, however.

We have not undertaken to go into a lengthy discussion or analysis of the cases cited or into the matter of special taxbills. The law in this State in relation to these matters of street improvements and of the assessment of property for payment thereof may be said to be fairly well settled. It certainly is, so far as concerns the main question in this case. Even if we had the power to disturb the finding of the trial court on the question of the weight of evidence, we would not be disposed to do so in a case of this character, having in mind the great importance to the people of the city of St. Louis, and for that matter, the people of the various cities of the State, in which public improvements are being made, of not only not overturning or disturbing taxbills, on doubtful or debatable grounds, but of holding fast to the law declared. Not only should there be stability of decision in this class of cases, but the bills for public works, issued by public servants, should carry with them at least some presumption that the officers charged with the duty of is suing them have correctly discharged, that duty. The contractor does not make out these hills; they are made out hy officers of the public. On the ability of the contractors to collect on these bills when so made, depends, not only the making of improvements themselves, but the cost of the improvements to the property-owners, as also the general public. If these taxbills are to be overthrown for slight cause, and on doubtful evidence, or on strained and technical construction of the law' itself, the consequences are almost disastrous. They thereby become so discredited and so much under suspicion, that responsible parties will be loth to enter upon contracts for public work, few contractors can carry on great public works entirely with their own funds and they must borrow, the banks and financial institutions will be loth to loan or to make advances to contractors on account of anticipated payment which must be made out of these taxbills, and the uncertainty connected with the payment of the bills will not only hinder public improvements, but largely enhance the price of these improvements themselves. If, therefore, this was a doubtful case on the evidence, and on that the learned trial judge has concluded us, and in as much as there is no pretense that this improvement was not made on Warne avenue, and no pretense that it was not made in accordance with contract, and at fair and reasonable prices, and as it was an improvement that undoubtedly went to the enhancement of the value of the property of these defendants, none of which matters, however, are open to inquiry in this case, for it stands on the taxbills alone, we would decline to disturb the finding of the lower court and it is affirmed.

All concur.