*1 support substantial evidence to the award there is We conclude affirming judgment court circuit and the the Commission - follows that should be affirmed. It therefore award. All concur. It is ordered. so Holding Respond rel., Company, Associated of Missouri Appellant. of St. S. W. 419. ent, Joseph, February 1, Appeals.
Kansas 1943. Conkling
Louis Kranitz Sprague & respondent. *4 M. King
Homer C. Bart Lockwood appellant. *6 SPERRY, brought the is a suit relation of C. This mandamus at against City of Holding Joseph. the St. Relator Company, Associated special the bills for cost owner of two tax issued the a Joseph a a tract of land portion upon street in St. which abuts 1, city. Place, known Park the Relator Fairleigh as an addition to erroneously in the contends said tax bills issued name of were Fairleigh corporation, owner, the Realty Company, a whereas issued, Joseph is, of St. at the time the owner was the bills were estate, of said been issued. real and that said bills should have so Relator,. action, this directing respondent seeks a writ to cancel originally said tax issued and to corrected bills as issue two new and respondent tax Judgment bills lieu thereof. was relator and appeals.
Many urged defenses are by respondent, among which that the jurisdiction trial did court not have compel to the issuance of new tax bills court, jurisdiction because there was no one within the of the a party action, to this cause compel the whom court could to do anything. We think this contention must be sustained. In State ex rel. Pickering Springs, Willow 208 Mo. App. l, the action “City was in Willow.Springs” mandamus wherein the was the only respondent, sought and relator compel respondent to to abate a nuisance. judgment Relator had a prayed. the granting relief Springfield The Appeals said, 1. 4:c. “ . . It is held Louis, in Sallee 615, 463, v. St. 152 Mo. 54 W. S. that it is the duty absolute of a to abate such a nuisance. ifBut the officers of a city fail to duty, do their they compelled be can suit, so against do in a not them, city? but . . . Here city only is named as judgment defendant. peremptory The mandamus abated, directs that the nuisance be and that ‘the city of ’ Willow Springs shall immediately steps take abate the -to same. The city of course only through can act agents, officers or and we do ’’ judgment a know 'the how like one rendered be could enforced. was reversed. The decision in that ease harmony is in majority with the of the oh subject. authorities J., In 38 848, C. page par. 554, it said: “The person body or .duty whose it perform sought is to the act be enforced mandamus is necessary a party respondent.” above decision is cited as authority for that declaration law. In held it (Mo.), S. W. v. Olenhouse Kent rel. acts board whose township aof to all members must that the writ go mem- all failure to make such sought to be coerced were In State writ. of the for dismissal to the action called parties bers held, 1. c. 167, it was Walter, (2d)W. 23 S. ex rel v. *7 act the duty perform to it is person the whose run to
writ should ' required.' 176, an County, App. 173, 61 Mo. Pike Bell v. Court of County In county a court the of mandamus, it that members in was held action it was insufficient named, that capacities, in official and be their must In ex rel. respondent. to v. Wurde county make “the court” is 43, proper held that the man, 28, practice 183 l. it was App. Mo. c. sought by acts officials, name, are against whose to direct the writ the to be coerced. Remedies, 350, 351, it said Legal pages High’s Extraordinary In be writ English that the should early permitted that the rule while be it must municipality itself, a in United States directed to the duty municipal particular government whose to that branch of directed done sought to be ordered act; duty and if the it to the perform council, mayor and common municipal body, rests such as the on corporate in their the should directed to each and all of them writ be capacity. 2735, McQuillin 6, Municipal Corporations, par.
In Revised Yol. on page 912, following appears: th.e WRIT DIRECTED MUNICIPAL CORPORA-
“HOW AGAINST the to proceedings TION. The ancient rule in mandamus was direct name, the- municipal government by corporate writ the its while to municipal it practice modern is to several members of the direct to the charged government performed. with the to duty be this; advantage “The in the latter course shown in pursuing in clearly the as in the one form as duty whilé can be commanded by other, yet necessary the compel it obedience when becomes attachment, the in against corporation such cannot be enforced writ persons govern the corporate composing name. names of the ing body brought the municipality of the before court must be they, may, by in the com capacity their official the mandate of court be pelled perform required the function.” designation
Among other in authorities found cited footnotes under County Court, supra. “47” is that of Bell v. cites authority support position
Plaintiff as in of its the case Chillicothe, 486, rel. Meek 602. State ex S. v. Mo. W. sought There relator cancellation tax bills the theretofore issued and the issuance of new in lieu thereof. The and corrected bills by writ granted was the trial was affirmed court and that by language the Supreme the An the Court. examination of of. opinion following, discloses the l. c. 494: “Respondent if a correct concedes construction of the law relator, requires apportionment by the of the cost as contended for by Appeals, as decided the relator is entitled to and then peremptory go.” relief the writ of mandamus should and Therefore, propriety naming respondent, the the itself in- officers, stead was not in of its involved the case. , However, also in the reported this ease is 141 S. W. under title “State rel. Meek of Chillicothe et al.” Because of investigated original discrepancy this the file and voluntarily we Court, opinion Supreme in in this cause the files docket relator, sought relief petition therein, and find 'that in his writ against Taylor, Mayor Chillieothe, Scruby, mandamus John H. ¥m. Eylenburg, Litton, at Hofir large, councilman and ¥m. Moses Hiram. Holt, man Albert members council of the of Chillieothe. was, therefore, mayor action directed and council n capacity, respondents; their official was granted relief prayed. sought granted against corpora The writ neither nor tion. The title which the did under case was tried fact embrace *8 all the parties of in the action. sought
Relator
the
contends that where the
to be
by
act
coerced
required
is
municipality
writ
one which the
do,
itself is
to
the writ
may
the municipality
run to
instead of to its
deciding
officers. Without
question
by
cited,
whether or not that
is answered
the
above
authorities
discussed,
say
and
it
find,
is sufficient to
the
that nowhere
we
in
do
city
charter of the
of
Joseph,
St.
that the
special
shall issue
tax
against
bills
for
alongside
itself
abutting property
costs of paving
of
by
owned or
it
purposes.
held
for public
Relator contends that section
6421,
Missouri, 1939,
Revised Statutes
.provides.
so
That section
following provision:
contains
city shall,
the
.
.
the
“.
of
out
general
the
city, pay
revenue of the
its proper proportionate share
cost of
herein,
against
the
the work
city
mentioned
a tax bill
the
to be
may
issued on which the city
be
in
payment
sued
default of
))
We
previously
have
held
the
money
that
cannot
sued
a
be
for
judgment for the
this
special
cost of
absent a
tax
paving
bill to form
the basis of such
al.,
suit.
Kelley
v.
Holding Company
et
[Associated
408 preceding ih made by paving is for provision which abutting on streets dity. the the In controlled owned or including property paragraphs, is it conflicting therewith provision statutory any specific absencé of com- city itself is logic, that the or 'say, any with reason difficult to against itself. special tax bills issue manded. to Goldman ex rel. in State by Supreme the Court rule declared The 153, where Commission, 325 Mo. Compensation Workmen’s Missouri v. in man respondent a might made be the commission it held was the there held The court here. action, application has no damus ‘‘ not its individual such—and provided that Commission statute copies of its certify aiid to authenticate members—is authorized ’’ at theré the bar In caSe office. ddcuiüénts on file records and Joseph” shall issue “City of St. that the providing no statute against itself. tax bill special States which seem other courts of There aré decisions the only, respondent be made corporate may city, in its name hold that a Alexandria, Hundley City of ex rel. in a mandamus action: State (Tex.), Nacogdoches v. McBride 491; City 164 La. So. Osceola, Company v. (2d) 866; Middle Utilities 27 S. W. States 643; (Ga.), v. Town Iowa, 1 N. W. Adams of Weston held that the act commanded 69. In some such cases S. it E. required do; corporation to be done was one which the itself at to do they in no be followed in ease bar because but event can ad being in conflict similar opinion so would result in this with judicated Missouri cases herein cited and discussed. n C., Boyer, judgment It follows should be reversed. sitting. C., PER foregoing opinion adopted CURIAM:—The Sperby, opinion is reversed. All concur. court. eob.Reheabing.
On Motion *9 SPERRY, Respondent, rehearing, in two its motion for cites C. previously decisions not called to our attention. The first such City decision is rel. Poole of Willow v. Springs, 183 S. 589. an W. That deals action in manda decision with mus -to compel levy, collection, etc., application, taxes pay of by theretofore is obtained relator It defendant. not a dealing ease with issuance of a tax where a statute bill places duty such specific city on a board or commission and not on the as a corporation. Furthermore, prayed relator the trial court issue of alderman, writ mandamus directing therein the “board of etc.” (l. 590) perform c. opinion certain acts therein named. Our herein is not ih conflict with that decision. The other decision cited Brunswick, City is that Hartman of of v.
98 Mo. 674. App. opinion J., The of this prepared by Ellison, court. original files discloses of manda- alternative writ mayor Ed Tschann, “to as mus issued was directed J. therein Missouri, E. city Brunswick, County, Chariton do Samuel Strub, Bragg, Everly, Lloyd Herring, Benjamin M. H. Dr. Edward Kinkorst, William as and mem Knappenberger and John councilmen city Brunswick, bers of the to Walter board of alderman of said said and to M. Barker as Owen collector of Brunswick J. ’ ’ Greeting: treasurer of in the said Brunswick: decision disharmony the case instant case with rendered us above mentioned. The discussed on situation there similar to that page opinion herein, of o'Ur State ex rel. Meek v. main to wit: G., Chillicothe, Boyer, 602. concurs. Mo. 141 S. W. rehearing PER opinion CURIAM: —The on for motion foregoing Sperry, C., The motion adopted opinion the court. rehearing is overruled. All concur. Lina O’Meara, Appellant, New York Life Insurance Jacobs Respondent. Company, 169 S. 116. W. Appeals. March
Kansas 1943.