*1 ' COURT SUPREME OF MISSOURI, Palmyra. Heather v. 679.]”
well, is Somewhat similar in effect Martin v. 142Mo. 85. Trail,
It follows from what we have herein said, that judgment nisi should reversed and the cause remanded proceedings for further with conclu- inconsistent our expressed, Lindsay, sions herein and it is so ordered. C., concurs. foregoing opinion by PER CURIAM: The Seddon, adopted opinion
isC., as the of the court. All of the judges except concur, Woodson, J., absent.
JULIA TIPTON HEATHER v. OF PALMYRA CITY
et al., Plaintiffs in Error. One,
Division October Change 1. JURISDICTION: in Judicial Circuits: Acts 1921. The 1921,passed regular Assembly, Act of at the General session of the abolishing judicial suspended circuits, the then under the provisions Constitution, subsequent referendum and the act subject, passed on the same at the session held in 1921 be- provisions, fore the election under the referendum was non-effec- tive, Chapter and Article 3 of 21 of Revised Statutes 1919 were judgment against force when a was rendered defendant in the County December, 1922, Circuit Court of Macon and said circuit begun court had of a cause which was in Marion Coun- ty by Change plaintiff’s application taken of venue on County, by change Monroe and from there of venue defend- application County. ant’s to Macon money judgment 2. EXECUTION: Returnable in Vacation. The being valid, writ of execution made returnable in vacation is merely succeeding erroneous and if returned to the next term quashed cannot be for the error. Quash: Change quash -: Motion to of Venue. A motion to meaning (Secs. suit execution not a within of the statute 1182,1357, 1919), R. and the debtor not entitled to quash. change hearing his of venue on a motion Vol. APRIL TERM, 1925. Change damage MANDAMUS: of Venue. Final in a having against city, having suit been rendered been execution wholly unsatisfied, issued and returned is not brought entitled ato of venue in a mandamus in the suit *2 by plaintiff compel city same court the to the and its officers to levy pay judgment, right change make a of taxes to the where to the changes already granted the venue has been exhausted successive parties merely each to ancillary of the in main the suit. The mandamus is suit, unavailing to the main and a substitute the is for process against city, right change of execution a the and to a purely statutory, right venue is and does not exist to a where the already further has been exhausted. judgment
-:5. Amendment of Alternative Writ. Where for damages against city, has been rendered and a mandamus has brought compel city levy been and its a officers to make pay it, permitting plaintiff taxes to the court does not err in persons substituting to amend the alternative writ as mém- two city bérs of the council who have been elected successors two expired. others whose terms have By Special -: Tax 6. Kate: Cities Under Charter: Act of 1921: 1921, prohibiting Ten Per Cent Increase. a None of the acts of greater per levy increase than ten cent of taxes for one year levy preceding year, applies city over the of the to a under a special population charter whose is between one thousand and ten inhabitants; compel a mandamus suit such a thousand levy city pay monetary judg- and its officers to make a of taxes to relator, compel levy rendered favor of the court can ment fifty dollars, year judgment on the hundred each until the is cents paid. Estoppel: Judgment -: Assessment of for Taxes. The relator city judgment against damages, brings a valid obtained levy compel city make a taxes to suit to officers to petition alleges attempted pay she to add In her it. assessment, judgment part to her as a of her of said the amount taxation, alleges and she returnable for challenge validity judgment, thereby estopped of the allegations, respondents, the court struck on motion of out. these clearly legal judgment being Held, that, valid and other on validity dependent upon estoppel, grounds, in no wise and its motion, sustaining point, court erred the trial is whether respondents’ appeal importance for rela- from noof tor. from Files: Trial and in Arrest: Stricken Motions New
-:8. Exception. assignment trial the man- An court No Sup. 811 Mo. —3. 34' SUPREME COURT OF MISSOURI, striking damus suit erred in from the files the motion for a new by plaintiff trial and the motion arrest of filed consideration, exception error is not for if the abstract shows no striking
taken to the action of the court in them out. Levy Pay Judg- -: Bonded Indebtedness: of Tax Amount ment. Whether the bonded indebtedness of the was authorized Constitution, X Section 11 or Section of Article if the óxisting population one charter and its inhabitants, one between thousand and ten thousand it can be compelled by fifty mandamus to make annual cents on dollars, year long necessary, pay the hundred monetary judgment each so a valid against city, provision and no levy. and no statute inhibits such Constitution Juris-Cyc. Courts, J., Corpus 224, p. 878, References: C. Section n. n. J., p. 91, Evidence, 1987, p. 161, 23 C. Section n. Section Executions, J., p. 162, 864, p. 793, n. 84. 23 C. Man- Section n. 98. p. J., 35, 39; damus, p. Section n. Section n. C. 634,p. 905, 668, p. 913, 746, p. n. Section n. Section Municipal ’Corporations, Cyc., p. 1640, p. n. 40. n. n. n. *3 66; p. 19; 1667, 17.01, p. Venue, Cyc., p. 7; p. 1660, 117, n. n. 55. n. 40 121, 70, 18; p. 85. n. Appeal Circuit from Court. —Hon. Vernon L. Judge.
Brain, .Affirmed. plaintiffs for in error.
J. F. Culler
(1)
finding
in
up-
erred
court
writs
were
on which
issued was
mandamus
a valid
judgment,
be-
for the reason
said
was void
it
court in which was rendered
without
cause the
parties
subject-matter
in
of either the
or the
p.
p.
244;
Laws
Laws
1921,
the cause.
Ex. Sess.
1921,
seq.;
p.
seq.,
especially
140
Laws
ét
1923,
50 et
(2)
place 2.
The execution which
takes the
petition is void because was
made returnable
ato
day
Monday April,
term,
out of
the second
to-wit,
April
1923, when, in fact, the
term of the court out of
began
Monday
which it issued
third
in said month.
Holliday Cooper,
(3)
1919;
v.
3606,
Sec.
R. S.
wood and & Matthews Jones for in error.
(1) County The Macon Circuit Court Decem- its ber jurisdiction parties had term, 1921, both of the (,a) (b) subject-matter and its val- was a id R. judgment. S. see. State 2501; ex rel. Drain v. 240 Becker, 229; S. W. v. 245 Heather of City Palmyra, 36 MISSOURI, COURT OF SUPREME City v. of
Heather
appeared
at the trial
error
390. Plaintiff in
S. W.
exception
objection
question
or
to
without
cause in
alleged
jurisdiction
confusion as
because of
alleged
reason,
other
terms,
or
date of
prosecuted
appeal
it
lack of
when
no such
(2)
Appeals.
execution was not
Court
by
clerk
inadvertance of the
fact that
void because
beginning
prior
days
few
was made returnable
taken
Further
no
next term.
Long, Mo.
Estes v.
188;
11 Mo.
v. State,
it. Milburn
grant
refusing
(3)
was committed
No error
proceeding
plaintiff
change
in error.
venue to
the
by
suit as defined
Sec.
is not a new.
mandamus
change
only
it is
suits
R.
1919. And
provided
1357. The
Section
shall be
venue
awarded
provides
further
that but one
section
last-mentioned
party.
granted
The de-
to either
be
venue shall
changed
Marion
from
the venue
had
fendant
in error
plaintiff
County,
had
County
and the
Monroe
County.
changed
from Monroe
the venue
only
proceeding
a continuation of
The mandamus
simply ancillary
v.
original
thereto. Sutton
suit,
App.
State ex
Cole,
228;
89 Mo.
206;
Mo.
v.
Cole
Cole,
v.
Little Tarkio Drain. Dist.
508;
75 Mo.
Slavens,
Cook,
ex rel. v.
201 S. W.
237 Mo.
State
Richardson,
pointed
(4) A
is the method
out
of mandamus
provided
creditor to collect
statute
or
city.
unwilling
R. S.
sec.
debtor
from
Cassady
Hubbell v.
Slavens,
75 Mo.
Maryville,
App.
rel. v.
Norvelle,
State ex
App.
Brunswick,
Hartman
App.
Dexter,
v. Town of
Hambleton
incorporating
By
(5)
Article 11 of
act
de-
Palmyra
the act is
under a
charter
may
public
in'
read in evidence
act and
to be a
clared
proof.
equity
This
without
law and
in this State
courts
approved
found
and is
23, 1855,
November
act was
private
laws
acts
entitled “Local
volume
adjourned'session
passed
eight-
at the
of Missouri
*5
37
1925.
City
Palmyra.
Heather v.
of
City
Assembly begun
eenth
of
and
at the
General
held
Monday
day
1855”
Jefferson on
the 5th
of November,
page
public
incorporation
act
a
the act of
Where
judicial
Wabash,
the courts
v.
notice of it. O’Brien
take
App.
Springfield
34 Mo.
Whitlock,
Mo.
12;
of
App.
City Vineyard,
In-
462;
128 Mo.
In re
Kansas
dependence
City, 51
Kansas
128 Mo.
Bowie v.
Ave.,
judicial
Mo. 454. The
notice of the United
courts will take
Palmyra
by
re-
States census of the
of
as shown
Managers
Co.,
turns.
ex
State
rel. Board
v. Jackson
ex Martin v.
Wofford,
State
rel.
ex rel. Dickerson v. Macon
129Mo.
Co.,
Gar-
rel.
Garresclie
State ex
Roach,
resche v.
The census of
Drabelle,
Palmyra
population
slightly less
showed that
had
(a)
existing
Palmyra,
than 2000.
special
under
by
provisions
Sec.
charter is
affected
by
R.
8399, S.
as amended
the Act of March
1919,
29,1921,
p.
by
Laws
act
further
1921,
517. Nor
as it was
April
pp.
the act
amended
Laws
4, 1923,
1923,
276,
applies
277, 278.
act March 29, 1921,
cities
companion
passed by the
A
the fourth class.
act
approved
Legislature
1921,
same
which
29,
and
March
only
class;
affects cities
the third
in Laws
this is found
companion
pp.
passed
A
1921,
518,
act was
Legislature
approved
the same
and
March
which
29,1921,
only
affects
cities of the second class. This is
found
pp.
companion
passed by
Laws
522. A
act was
approved
Legislature
and
the same
and
March 29, 1921,
only
p.
this
found
Laws
act affects
companion
passed
villages.
by the
A
towns and
act was
Legislature
approved
same
March 29, 1921, which
organized
charter;
certain
cities
affects
specifically
cities
terms it is
limited to
but
those
people
than
30,000
contain
than
which
more
less
which
so that none
these acts
undertake
50,000,
any way
limit
assessments in
affect
the amount of
city Palmyra.
only
plain-
one of these acts
pleaded
applies
tiff
is Section
which
has
MISSOURI,
COURT OF
SUPREME
Palmyra.
only
not in
wise
class,
of the fourth
does
cities
(6)
apply
No error
permitting
the amendment of
alternative.
*6
Printing
ex
1919;
R.
rel.
mandamus. Sec.
State
App.
Dryer,
Harrison
183
rel.
463;
v.
Mo.
ex
v.
Co.
State
151
App.
Bank
ex rel.
v.
623;
Bourne,
211 Mo.
State
Hill,
App.
239;
Mo.
104;
Hudson,
Mo.
State ex
v.
Baggott,
(7) An
I. The asserting original judgment, Court that the Circuit jurisdiction, without either parties subject-matter.' ques- or of the , Junsdiction. -r up tion oí lack o± raised Appeals. appeal contention here to the Court provisions in error is based p. [Laws 1921, 1921 and 1923. acts of of certain p. p. Laws Session, Extra Laws judicial undertaking abolish acts These were existing. State theretofore circuits *7 brought originally term, to the October was The suit County, court Marion the Court of the Circuit of 1921, Palmyra term, At that of is situated. wherein the changed plaintiff, application the venue was of the on city, application County, the on of and thence, Monroe County. changed A Macon trial was had was the venue the of Cir- term, 1922, the December at at Macon judgment County, was ren- and the of cuit Macon Cour-t February during 1922, said December term. 1, dered on regular passage prior at the of the time At and Chapter Re- 1921, 21, the Act of Article session 2501of that force, was Section 1919, vised Statutes among provided, terms other That’ section article. regular of the Court of Macon for a Circuit term court, Monday County City on the second of De- at year. passed 1921, The at each Act cember suspended referendum regular session, subsequent provisions The act on Constitution. passed be- subject, session same provision, was referendum under the election fore the determined, were set- These matters non-effective. Becker, ex rel. Drain set forth and are tled, COURT MISSOURI, SUPREME OP Heather Chapter provisions 21, of Article 3, S. W. 229. The article,
Revised Statutes rendered. were force at the time the subsequent emergency clause, with act, Laws its repealed Chapter Article Revised Statutes judicial holding fixed the times of court in circuits holding the the regular State, but did times Beyond County. circuit court in Macon terms of original appeared all in the that, the sub action, question ap mitted peal, defense and raised no nor then, its on jurisdiction. The of lack of County parties, and Circuit Court of Macon over subject-matter, over be doubted. cannot II. The in error next contend that ex- ecution issued on the against was void. An execution unsatisfied, returned forms the basis against which the writ mandamus may provisions Execution: officials issue, under the an(j Returnable in Vacation, of Section Revised Statutes 1919. The
execution issued out the Macon Cir- January 16, 1923, cuit Court was issued and it was made Monday April, to that court second returnable objection is that ran,- 1923. The whereas so the next succeeding (April) term court, of said under the stat- April, began Monday on third 1923. The ute, re- execution fact made at turn of the the next suc- April ceeding term, January city, quash filed 31,1923, its motion grounds quash of the motion
the execution.
were
*8
(1)
Court
that the
Circuit
without
judgment,
court
to render
and that the clerk of
the
authority
(2)
to issue the execution;
was without
that the
authority
was without
serve
of Macon
Sheriff
to
city,
(3)
prior
execution;
at
the
times, had con-
obligations in
of its bonds,
tracted
the
issues
directing
any
payment
or resolution
order, decree
impair
obligation
said
that time would
the
city’s
of the
bonds,
contract
violation
TERM, 1925.
I
10 of Article
of the Constitution
United
Section
pro-
depriving
its
due
the
without
States,
equal protection
denying
the
the
it the
of law and
to
cess
upon
city applied
for a
venue
laws. The
quash
hearing
mo-
the
which
execution,
motion to
of its
assigned upon
that.
was denied and error
tion
already
question of
Enough
upon
been said
the
has
authority
consequent
validity
judgment.
the
equally clear.
execution thereon is
the clerk
issue
to
support
void,
the
the contention that
execution was
In
upon
or,
face,
it
returnable
was,
vacation,
because
April,
counsel
court,
the
term of
one week before
no
Holliday
Cooper,
Venue. point 663. The case is not here. It involved change pending. application venue a suit proceeding quash motion the execu Here the meaning in a suit tion was not within Section contemplation the section nor within authorizing change venue in civil suits. assigned in error have
IV. city’s application change for a that the court denied proceeding. right mandamus “The of venue ato statutory, change purely venue and does except in those instances exist where Mandamus: °f [Cole gives them.” Cole, statute Venue.8 App. c. v. Wofford, Witherspoon, 231 Mo. 408; State each in mind suit itself, to be borne It is a party been allowed venue. had manda- merely ancillary proceeding a suit; a mus species process final under the thereof, continuation Heather process unavailing execu
statute; substitute Cyc. city. against R. tion [Section State ex rel. v. Slavens, *10 App.) (Mo. Hubbel 201 W. Cook,
Hentschell v. v. App. City Maryville, ex rel. v. 85 Mo. of City Brunswick, App. v. 80 Hartman Norvell, Mo. App. Mo. 89 Dexter, 98 v. Town of Mo. Hambleton being proceeding nature it was, 188.] The [State right did not exist. ex to a of venue supra; supra; Sutton v. Cook, v. Slavens, v. 206.] Cole, Complaint committed the court that
V. allowing alter amend the defendant error error native writ of mandamus. The amendment consisted of persons two members the substitution of as „ ., ,, „ Amendment. .. v 1 city, of, m lieu and as the council expired. terms had two others whose of, successors doing pro- so. mandamus no error There was by informal in ceeding 1685 is char- Section authorized by given right 1290, Section of amendment acter. respect of all writs of manda- 1919, Statutes Revised mus. complain court, in that Plaintiffs in
VI.
part struck
error,
motion
out
portion
pleaded
return. The
stricken out
amended
th.e
complete assessment of taxable
Tax
city
finally
city
Palmyra,
settled
Rate.
equalization
July
1923,
24,
a board of
council as
completed
$2,783,159;
assessment
amounted
levy
1922
that the tax
fif
$1,449,274;
provisions
ty
that under the
valuation;
cents on the $100
Revised Statutes
1919,
amended
Section
page
approved
the act
March
Laws
29,1921,
approved April
again
Laws
4, 1923,
the act
amended
page
not authorized
twenty-nine
valuation,
cents
$100
excess
twenty-nine
in excess
any levy
would
cents
be
SUPREME COURT OF MISSOURI,
by major
in violation of said act unless authorized
ity
purpose.
of the voters, at an election held for that
Palmyra
city incorporated
is a
under a
approved
charter, under an act
November 23,
|
pages
[Laws
Local and Private, 1855,
180-192.
By
12 of
Article
of that act, it was declared
public
may
“a
to be
all
act, and
read
evidence in
equity
proof.”
of law
courts
in this State without
judicial
It is an act of which the courts take
[Kan
notice.
City Vineyard,
Independence
sas
Section 8399,Revised Statutes 1919,was a of the amendatory charter of class, cities of fourth the and the expressly amendatory act mentioned was of that section. passed applicable Like in 1921, acts were to cities applicable of other classes: One to the cities of the third (Laws p. 518); applicable 1921, class one the to cities of (Laws 521); applicable 1921, p. second class one to towns (Laws villages p. 522); applicable and and one to special having cities charters, under more 30,000 than (Laws inhabitants 50,000 and less than inhabitants p. 520). purported apply None of said to acts to special except cities under charters, the one last men- application city which tioned, could have no to the Palmyra. city population As a awith in excess of 1000 inhabitants, levy 10,000 and less than the limit of its city purposes (Sec. and town under the Constitution 10), fifty art. cents the valuation. $100 Under the just Legislature tei’ms of the various acts mentioned, the did not undertake limit, to and levy did not limit the special having population cities under a charters, inhabitants., excess of and less than 10?000 upon fifty cents made of court directed that a the valuation. $100 suggest the in error
Counsel for defendant concerning unconstitution- acts cities are of 1921 levies the being al Article as ; violation applicable cities Constitution. But the Act of ex rel. Sedalia valid in third held class, was acts said The amendments Weinrich, applying third they second, as do to cities of organized villages under fourth and to towns classes, having special general charters laws and cities under do inhabitants, than 50,000 more than less 30,000 and city city Palmyra, apply having 10,000 than more than 1000 and less charter, and inhabitants. Complaint erred in
VII. the court is made overruling to strike error the motion of part the defendant out of the answer of city attempt alleging error, in error, assessment of add to the Estoppel:ValidJudgment. part said (cid:127)the amount for taxation. returnable her pleaded issuance of an order
Defendant directing assessor to council against her in the of $7,000, sum assess estopped thereby pleaded also that validity judgment. deny Counsel have question nothing whether cited challenge legality estopped action, this importance. question one of no judgment: *12 judgment was valid. that the held course, below, court ground holding is sustained Its competent upon had a court of a trial rendered regular court, at which term of that jurisdiction, at a inception, throughout its case from and appeared and objecting defense, and without appeal appealed, raised no and being unsuccessful, objections made to the jurisdiction. toas issue MISSOURI, SUPREME COURT OP of the Circuit Court of regular judgment, render based the acts Legislature and as has sessions been were in State said, settled the decision supra.; Drain y. and the Act of con- Becker, 1923, which emergency tained an clause did not the terms holding City. for court Macon Complaint
VIII. is made of the action of the striking court the files the from motion new trial and motion arrest of in the mandamus proceeding. exceptions setting There is a bill of here, proceeding; evidence out the taken that but it does not any motions, said nor does it show contain striking Out reference whatever to them. The abstract Motions. .proper of the record the. contains statement they are filed, motions were set that these out the motion of also is abstract, files, from to strike them statement that out was sustained. the motion to strike There is no exception anywhere, showing an taken statement sustaining, the court the motion to action of strike doing that account, from the files. On his action in them [State here. reviewable so is not Sanford, 181 Beyond that, it must be that the motion nothing motion in arrest trial and contain for a new assignments in the filed error, not included here, considered here. urged that because the
IX. It was indebted previously of bonds under certain issues made, obedience impossible make it to the writ would they liquidate contracts; those would have to be making impossible taxation; statute met liquidate body taxing interest for the on its bonded impairing unconstitutional as indebtedness is gation the obli- competent contract; that the decision of a the same affect as the court has statute, the law *13 Palmyra.
Heather v. of apply the de- to applying likewise to a statute would cision of such court. n n testimony there were bonds was that unpaid There $25,000. amount of about showing purpose issue, their of no evidence was maturity. evidence There nor the time over the total of the assessment increase in mainly to the due the assessment total council, order of assessor, addition personal as the assessment $1,400,000, sum being property assessment estate,” of the “Bowles year against a total of said estate for $100,000 years, during there had time, fourteen which been no personal of that estate. assessment of the granted peremptory October It writ was proceed levy, to in error commanded the fifty a tax of cents and collect assess $100 year year to to do so from as valuation, and occasion paid, required until and costs were said “except paid, to defendant be error, same may pay necessary as be amount thereof such salary mayor, allowed law to council, reasonable attorney and a marshal, constable, reasonable assessor, Palmyra.” police said There force vas any levy any required showing ever or made, no. the contracts of the under to meet made, allegation of the return to the amended bonds. had was that these bonds been issued alternative showing years 1921. There is no (cid:127)between purposes issued bonds were for the these whether 11 Article X of the Constitution, in Section authorized authority given under the or issued an annual In either event tax could be article. obligations imposed contracts, of such even meet though in a total of taxes excess of it resulted fifty [Lamar Water L. E. Co. v. $100. cents & the bonds issued If were Lamar, authority Article theX, of Section incurring time in- or at the such required before SUPREME COURT OP MISSOURI, “provide debtedness to for tbe collection of an annual pay tax sufficient to tbe interest on such indebtness after sinking it falls due and also to constitute fund payment principal *14 years twenty within thereof ’’ provision contracting from the time of the same. This enforcing. mandatory [State is self ex rel. v. State ex rel. v. Hackmann, 275 303; Black Gordon, 251 Mo. Early, 208 Mo. rel. v. Allen, 283.] being contrary There no evidence to the it must presumed complied be officials with mandatory provisions [Delmar of the Constitution. Inv. Lewis, Kansas Co. v. Brown, 286 being the tax so, This levied under the peremptory prevent does not of the tax to city’s obligation meet the under its bond issues, and the impair obligation its effect, does not,-in of those contracts. judgment awarding per-
It results emptory writ mandamus must be affirmed. Seddon, C., concurs. The foregoingopinion by PER CURIAM: Lindsay, opinion adopted Ragland, as the of the court.
C., P. Atwood, JJ., concur; J., Woodson, Graves J., absent.