Heather v. City of Palmyra

• Decision Date: 27 September 1927
• Docket Number: 27864
• Citation: 298 S.W. 750,317 Mo. 1320
• Parties: Julia Tipton Heather v. City of Palmyra et al., Appellants
• Court: Missouri Supreme Court

298 S.W. 750

317 Mo. 1320

Julia Tipton Heather v. City of Palmyra et al., Appellants

No. 27864

Supreme Court of Missouri

September 27, 1927

Appeal from Macon Circuit Court; Hon. Vernon L. Drain Judge.

Affirmed.

J. F Culler and Hay & Flanagan for appellants.

(1) A municipal officer cannot be held to be guilty of contempt of court for failing to do that which under the law governing his official conduct he has no authority or power to do. United States v. Labette, 7 F. 318; State ex rel. Poole v. Willow Springs, 183 S.W. 589; Hambleton v. Town of Dexter, 89 Mo. 188; Rice v Walke, 44 Iowa 458. The defendants were adjudged guilty of failing to do that which under the law they had neither the authority nor the power to do. (2) Before one can rightfully be held to be guilty of contempt of court and ordered committed to jail therefor, there must be a finding and judgment that such a person has failed to do some definite and specific thing which has been theretofore commanded by the court. State ex rel. v. Willow Springs, 183 S.W. 589. (3) Mandamus is a legal and not an equitable remedy. Of necessity, it is a stern, harsh writ, and when issued is an unreasoning, inflexible peremptory command to do a particular thing specified, without consideration, limitation or terms of any kind. Every step, therefore, taken in enforcing a right under this writ should be taken with great care, caution and particularity. State ex rel. v. Bank, 174 Mo.App. 589; State ex inf. v. Gas Co., 254 Mo. 515; Phillips v. Amalgamated Co., 208 F. 335. (4) The defendants were found and adjudged to be guilty of contempt without a finding that they were guilty of a failure to do any particular or specified act, and were committed to jail, there to remain until such time as they shall have performed certain acts without in anywise specifying or indicating the acts to be performed in order to end their commitment. (5) The commands of the judgment are impossible of observance in this that whereas the court orders defendants to approve the settlement of the collector with her commissions deducted from the amount tendered, the order of commitment directs that defendants remain committed until the commands of the peremptory writ of mandamus be complied with. This writ does not authorize a deduction of the collector's commission. The judgment is, therefore, void on its face for indefiniteness and uncertainty. (6) When a defendant is charged with a failure to comply with an order of court, he must be proceeded against with a formal accusation and is entitled to notice of the particular complaint and charges against him and to a hearing thereon. In re Clark, 208 Mo. 121; Ex parte Nelson, 251 Mo. 63; Greene Co. v. Rose, 38 Mo. 380; Cooke v. United States, 267 U.S. 517; In re Baum, 169 F. 410; 13 C. J. 65. (7) The defendants herein were never, in the entire proceeding, which ended in their commitment to jail, charged with any formal manner with the failure to do and perform any particular thing, were never given a trial for the failure to perform any specific or particular thing, and were not in fact adjudged to be guilty of the failure to perform any specific thing. They were not, therefore, accorded a trial before their sentence and commitment to the county jail, all in violation of their rights guaranteed by the Constitution of Missouri and the Fourteenth Amendment to the Constitution of the United States. Pennoyer v. Neff, 95 U.S. 714. (8) The plaintiff undertook to proceed against defendants under Sec. 1685, R. S. 1919. This section purports to authorize a judgment commanding defendants to levy, assess and collect taxes and apply the money raised thereby to the payment of plaintiff's judgment after first deducting from the amount raised the reasonable salary of the mayor, council, assessor, marshal, constable, attorney, and a reasonable police force of the city. The statute does not except the collector. It follows, therefore, that when plaintiff offered to waive the commission or salary of the collector, she abandoned her right to proceed under the statute and is left without any remedy in this case. (9) No Legislature can have authority to render a municipality powerless to protect or be embarrassed in the protection of the public health, safety and morals. State v. Mississippi, 101 U.S. 814. (10) Sec. 1685, R. S. 1919, in undertaking to compel a municipality, with the charter powers and type of municipal organization of the city of Palmyra, to divert revenues essential to the discharge of the municipality duties, under its charter and to the maintenance of its organic life as a municipality, was an invalid exercise of legislative power. All proceedings designed to divert funds essential to the above-stated purposes should be held invalid. State ex rel. Poole v. Willow Springs, 183 S.W. 589.

Glahn & Diemer, Rendlen & White and Matthews & Jones for respondent.

(1) The peremptory writ of mandamus was issued in strict compliance with Sec. 1685, R. S. 1919, and it was the duty of defendants to obey the same in good faith, without equivocation, subterfuge or evasion. Heather v. City of Palmyra, 311 Mo. 32. (a) This statute has long been in force; it applies to all Missouri municipalities, including Palmyra, and has always been held valid and reasonable in its liberality to sulky and stubborn city governments that do not want to pay their judgment debts or obey the orders of our courts. Sec. 1685, R. S. 1919; State ex rel. Cassidy v. Slavens, 75 Mo. 508; Hubbell v. City of Maryville, 85 Mo.App. 165; State ex rel. v. Norvell, 80 Mo.App. 180; Hartman v. City of Brunswick, 98 Mo.App. 764; Hembleton v. Dexter, 89 Mo. 188; Heuntschell v. Cook, 201 S.W. 364; State ex rel. v. Willow Springs, 183 S.W. 589; 26 Cyc. 307. (b) Appellants cannot complain because the plaintiff in order to end appellants' frivolous excuse, waived the $ 130.77 of commissions claimed by their collector. Same was not to their prejudice, but to plaintiff's. Thereby plaintiff in no sense abandoned her right to the provisions of Section 1685. (c) "The writ of mandamus was originally a high prerogative one, and used only in extreme cases, but with the great development of modern business it has been found to be one of the most necessary and efficacious tools of the law to insure that public officials do their duty, and it seems to be accepted generally as the proper procedure in cases like this." Town of Flagstaff v. Gomez, 242 P. 1003; United States v. New Orleans, 98 U.S. 381; Coy v. Lyons, 17 Iowa 1, 85 Am. Dec. 539 and note. (2) The defendants were committed for contempt of the Circuit Court of Macon County and for contempts specified in Chap. 21, Art. I, R. S. 1919, and the particular circumstances of their offenses were set forth in the warrant of commitment as provided in Sec. 2362, R. S. 1919. The final judgment recites the whole history of the case, and provides that the commitment shall contain a certified copy thereof. There was a formal accusation, notice, appearance, hearing and judgment. (a) The record is replete with evidence of a studied effort and purposeful intention on the part of the appellants to wilfully disobey the processes and orders lawfully issued by the court. The court had full power to punish appellants for those contempts. Sec. 2359, R. S. 1919. (b) All necessary and proper steps leading up to said commitment were duly and timely taken, as provided in Chap. 21, R. S. 1919. (3) The City Collector of Palmyra is a mere appointive ministerial officer appointed by and removable at the will of the defendants, the Mayor and City Council. She was the creature of their will and direction. (a) The defendants seek to hide behind her skirts. The plaintiff waived the matter of her commissions; the court, on November 8, 1926, directed and ordered the defendants to accept and approve her settlement with the city for taxes collected by her to June 15, 1926, less said commissions, and apply the same in accordance with said peremptory writ of mandamus on or before November 11, 1926, and to file in court by ten o'clock that day, their report showing said settlement and the application of said funds. Instead of complying, which was a necessary step toward and in compliance with the writ of mandamus in the cause, appellants, on November 11, 1926, filed a return that the collector of the city had not paid over to the defendants or the treasurer of the city any sum of money since said order of November 8, 1926, and that she had not tendered any money, although the court found she was willing to pay same over and she also so testified. (b) Appellants, upon approving the settlement with the collector, had power to direct the treasurer or custodian to make application thereof to the payment of plaintiff's judgment. Each and every such step is clearly within the orders of the court requiring proper application of the revenues collected and available under the court's order, and that appellants take all necessary and lawful steps to the liquidation of appellants' judgment.

OPINION

Blair, J.

Appeal from the order of the Macon County Circuit Court adjudging the mayor and councilmen of the city of Palmyra guilty of contempt of court for disobedience of a peremptory writ of mandamus theretofore issued by said circuit court, in aid of the collection of a judgment against said city in favor of Mrs. Julia Tipton Heather. The mayor and councilmen appealed. Certain constitutional questions were raised below which brought the case here.

The proceedings, which culminated in the order from which the appeal was taken, have been long drawn out and are not without interest. Mrs. Heather brought an action for personal injuries against the city of Palmyra in the Circuit Court of Marion County. By successive changes of...