169 S.W.2d 419 | Mo. Ct. App. | 1943
Lead Opinion
This is a mandamus suit brought at the relation of Associated Holding Company, against the City of St. Joseph. Relator is the owner of two special tax bills issued for the cost of paving a portion of a street in St. Joseph upon which abuts a tract of land known as Park 1, Fairleigh Place, an addition to the city. Relator contends that said tax bills were erroneously issued in the name of Fairleigh Realty Company, a corporation, as owner, whereas the city of St. Joseph is, and was at the time the bills were issued, the owner of said real estate, and that said bills should have been so issued. Relator, in this action, seeks a writ directing respondent to cancel said tax bills as originally issued and to issue two new and corrected tax bills in lieu thereof. Judgment was for relator and respondent appeals.
Many defenses are urged by respondent, among which is that the trial court did not have jurisdiction to compel the issuance of new tax bills because there was no one within the jurisdiction of the court, as a party to this cause of action, whom the court could compel to do anything. We think this contention must be sustained.
In State ex rel. Pickering v. City of Willow Springs,
". . . It is held in Sallee v. St. Louis,
The judgment was reversed.
The decision in that case is in harmony with the majority of the authorities on the subject. In 38 C.J., page 848, par. 554, it is said: "The person or body whose duty it is to perform the act sought to be enforced by mandamus is a necessary party respondent." The above decision is cited as authority for that declaration of law. In *406
State ex rel. Kent v. Olenhouse (Mo.),
In Bell v. County Court of Pike County,
In High's Extraordinary Legal Remedies, pages 350, 351, it is said that while the early English rule permitted that the writ should be directed to a municipality itself, in the United States it must be directed to that particular branch of municipal government whose duty it is to perform the act; and if the duty sought to be ordered done rests on a municipal body, such as the mayor and common council, the writ should be directed to each and all of them in their corporate capacity.
In McQuillin on Municipal Corporations, Revised Vol. 6, par. 2735, page 912, the following appears:
"HOW WRIT DIRECTED AGAINST MUNICIPAL CORPORATION. The ancient rule in mandamus proceedings was to direct the writ to the municipal government by its corporate name, while the modern practice is to direct it to the several members of the municipal government charged with the duty to be performed.
"The advantage in pursuing the latter course is shown in this; that while the duty can be as clearly commanded in the one form as in the other, yet when it becomes necessary to compel obedience by attachment, such writ cannot be enforced against the corporation in its corporate name. The names of the persons composing the governing body of the municipality must be brought before the court that they, in their official capacity may, by the mandate of the court be compelled to perform the required function.47"
Among other authorities found cited in footnotes under designation "47" is that of Bell v. County Court, supra.
Plaintiff cites as authority in support of its position the case of State ex rel. Meek v. City of Chillicothe,
"Respondent concedes that if a correct construction of the law requires the apportionment of the cost as contended for by relator, and as decided by the Court of Appeals, then relator is entitled to relief and the peremptory writ of mandamus should go."
Therefore, the propriety of naming the city itself respondent, instead of its officers, was not involved in the case.
However, this case is also reported in 141 S.W. 602, under the title "State ex rel. Meek v. City of Chillicothe et al." Because of this discrepancy we voluntarily investigated the original file and opinion in this cause in the files of the Supreme Court, docket 15807, and find that relator, in his petition therein, sought relief by writ of mandamus against John H. Taylor, Mayor of Chillicothe, Wm. Scruby, councilman at large, and Wm. Eylenburg, Moses Litton, Hiram Hoffman and Albert Holt, members of the council of the city of Chillicothe. The action was, therefore, directed against the mayor and council in their official capacity, as respondents; and relief was granted as prayed. The writ was neither sought nor granted against the corporation. The title under which the case was tried did not in fact embrace all of the parties in the action.
Relator contends that where the act sought to be coerced by the writ is one which the municipality itself is required to do, the writ may run to the municipality instead of to its officers. Without deciding whether or not that question is answered by the authorities above cited, and discussed, it is sufficient to say that nowhere do we find, in the charter of the City of St. Joseph, that the city shall issue special tax bills against itself for costs of paving alongside of abutting property owned or held by it for public purposes. Relator contends that section 6421, Revised Statutes Missouri, 1939, so provides. That section contains the following provision: ". . . the city shall, out of the general revenue of the city, pay its proper proportionate share of the cost of the work mentioned herein, a tax bill against the city to be issued on which the city may be sued in default of payment . . ."
We have previously held that the city cannot be sued for a money judgment for the cost of this paving absent a special tax bill to form the basis of such suit. [Associated Holding Company v. Kelley et al.,
Section 6543, Revised Statutes Missouri, 1939, creates a board of public works in all cities of the first class, such as respondent, and vests in said board far reaching powers touching the management and control of the streets in said cities. Section 6551 gives said board of public works control over the matter of paving streets. Section 6553 gives such board the power to make and award contracts for paving. Section 6555 states that the board "shall provide for the issuance of all special tax bills against the property properly chargeable therewith, which said tax bills shall be authenticated and certified to by the city engineer." (Italics ours.) This provision refers to the property *408 abutting on streets for which provision for paving is made in preceding paragraphs, including property owned or controlled by the city. In the absence of any specific statutory provision conflicting therewith it is difficult to say, with any reason or logic, that the city itself is commanded to issue special tax bills against itself.
The rule declared by the Supreme Court in State ex rel. Goldman v. Missouri Workmen's Compensation Commission,
There are decisions by the courts of other States which seem to hold that a city, in its corporate name only, may be made respondent in a mandamus action: State ex rel. Hundley v. City of Alexandria,
It follows that the judgment should be reversed. Boyer, C., not sitting.
Addendum
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is reversed. All concur.
Addendum
The first such decision is State ex rel. Poole v. City of Willow Springs, 183 S.W. 589. That decision deals with an action in mandamus to compel the levy, collection, application, etc., of taxes to pay a judgment theretofore obtained by relator against defendant. It is not a case dealing with issuance of a paving tax bill where a statute places such duty on a specific board or commission and not on the city as a corporation. Furthermore, relator prayed that the trial court issue its writ of mandamus therein directing the "board of alderman, etc." (l.c. 590) to perform certain acts therein named. Our opinion herein is not in conflict with that decision.
The other decision cited is that of Hartman v. City of Brunswick,
Addendum
The foregoing opinion on motion for rehearing of SPERRY, C., is adopted as the opinion of the court. The motion for rehearing is overruled. All concur.