Heather v. City of Palmyra

• Decision Date: 09 October 1925
• Docket Number: 25603
• Citation: 276 S.W. 872,311 Mo. 32
• Parties: JULIA TIPTON HEATHER v. CITY OF PALMYRA et al., Plaintiffs in Error
• Court: Missouri Supreme Court

276 S.W. 872

311 Mo. 32

JULIA TIPTON HEATHER v. CITY OF PALMYRA et al., Plaintiffs in Error

No. 25603

Supreme Court of Missouri

October 9, 1925

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

Affirmed.

J. F Culler for plaintiffs in error.

(1) The court erred in finding that the judgment upon which the writs of mandamus were issued was a valid judgment, for the reason that said judgment was void because the court in which it was rendered was without jurisdiction of either the parties or the subject-matter in the cause. Laws 1921, p. 244; Laws 1921, Ex. Sess. p. 50 et seq.; Laws 1923, p. 140 et seq., and especially in Section 2. (2) The execution which takes the place of the petition is void because it was made returnable to a day out of term, to-wit, on the second Monday in April 1923, when, in fact, the April term of the court out of which it issued began on the third Monday in said month, Sec. 1606, R. S. 1919; Holliday v. Cooper, 3 Mo. 286. (3) The court erred in denying the application of plaintiffs in error for a change of venue of the hearing of their motion to quash said execution. State ex rel. v. Dobbs, 118 Mo.App. 663; 23 C. J. 544; Buell v. Buell, 92 Cal. 393. (4) The court erred in granting defendant in error her alternative writ of mandamus and also in rendering judgment for and granting her peremptory writ of mandamus. Laws 1921, p. 244; Laws 1921, Ex. Sess. p. 50; Laws 1923, p. 140; Sec. 1606, R. S. 1919; Holliday v. Cooper, 3 Mo. 286; Sec. 8399, as amended by Laws 1921, p. 517, and Laws 1923, p. 276; People ex rel. Stine v. Supervisors, 40 Ill. 126; Welch v. People, 38 Ill. 27; Kings County v. Johnson, 104 Cal. 198; Shields v. State, 86 Ala. 584; Dunbar v. Frazer, 78 Ala. 529; Hambelton v. Town of Dexter, 89 Mo. 188; State ex rel. Star Pub. Co. v. Associated Press, 159 Mo. 410; Sec. 1177, R. S. 1919. (5) The court erred in permitting defendant in error to amend her alternative writ of mandamus and in refusing to quash said amended writ, and permitting her to proceed under said writ. State ex rel. Jackson v. Howard Co. Court, 41 Mo. 247. (6) An obedience to said mandate would operate to impair the obligation of contract. 3 Elliott on Contracts, sec. 2725, p. 908; Lehigh Water Co. v. Easton, 121 U.S. 388; Pliney v. Nelson, 183 U.S. 144; McMurray v. Sidwell, 155 Ind. 560; Gunn v. Barry, 15 Wall. (U.S.) 610, 21 L.Ed. 212. The decision of a competent court has the same effect as a statute and therefore the same law applying to the statute would likewise apply to the decision of a competent court. 3 Elliott on Contracts, sec. 2763, pp. 982, 983; Havenmeyer v. Iowa City, 3 Wall. 294; Olcott v. Supervisors, 16 Wall. 678; Green County v. Conness, 109 U.S. 104; Douglass v. County of Pike, 101 U.S. 677; County of Ralls v. Douglass, 105 U.S. 728.

Glahn & Deimer, Rendlen & White, Berryman Henwood and Matthews & Jones for defendant in error.

(1) The Macon County Circuit Court at its December term, 1921, had jurisdiction both (a) of the parties and (b) of the subject-matter and its judgment was a valid judgment. R. S. 1919, sec. 2501; State ex rel. Drain v. Becker, 240 S.W. 229; Heather v. City of Palmyra, 245 S.W. 390. Plaintiff in error appeared at the trial of the cause in question without objection or exception to the jurisdiction because of the alleged confusion as to the date of the terms, or for any other reason, and alleged no such lack of jurisdiction when it prosecuted its appeal to the Court of Appeals. (2) The execution was not void because of the fact that by inadvertance of the clerkit was made returnable a few days prior to the beginning of the next term. Further no property was taken under it. Milburn v. State, 11 Mo. 188; Estes v. Long, 71 Mo. 605. (3) No error was committed in refusing to grant the change of venue to plaintiff in error. The proceeding by mandamus is not a new suit as defined by Sec. 1182, R. S. 1919. And it is only in suits that a change of venue shall be awarded as provided by Section 1357. The last-mentioned section further provides that but one change of venue shall be granted to either party. The defendant in error had changed the venue from Marion County to Monroe County, and the plaintiff in error had changed the venue from Monroe County to Macon County. The mandamus proceeding was only a continuation of the original suit, and simply ancillary thereto. Sutton v. Cole, 155 Mo. 206; Cole v. Cole, 89 Mo.App. 228; State ex rel. v. Slavens, 75 Mo. 508; Little Tarkio Drain. Dist. v. Richardson, 237 Mo. 49; State ex rel. v. Cook, 201 S.W. 361. (4) A writ of mandamus is the method pointed out or provided by statute for a judgment creditor to collect from an unwilling debtor city. R. S. 1919, sec. 1685; State ex rel. Cassady v. Slavens, 75 Mo. 508; Hubbell v. City of Maryville, 85 Mo.App. 165; State ex rel. v. Norvelle, 80 Mo.App. 180; Hartman v. City of Brunswick, 98 Mo.App. 674; Hambleton v. Town of Dexter, 89 Mo. 188. (5) By Section 12 of Article 11 of the act incorporating the city of Palmyra under a special charter the act is declared to be a public act and may be read in evidence in courts of law and equity in this State without proof. This act was approved November 23, 1855, and is found in volume entitled "Local laws and private acts of the State of Missouri passed at the adjourned session of the eighteenth General Assembly begun and held at the City of Jefferson on Monday the 5th day of November, 1855" at page 180. Where the act of incorporation is a public act the courts take judicial notice of it. O'Brien v. Wabash, 21 Mo.App. 12; City of Springfield v. Whitlock, 34 Mo.App. 462; Kansas City v. Vineyard, 128 Mo. 75; In re Independence Ave., 128 Mo. 272; Bowie v. Kansas City, 51 Mo. 454. The courts will take judicial notice of the United States census of the city of Palmyra as shown by the returns. State ex rel. Board of Managers v. Jackson Co., 89 Mo. 237; State ex rel. Martin v. Wofford, 121 Mo. 61; State ex rel. Dickerson v. macon Co., 129 Mo. 427; State ex rel. Garresche v. Roach, 258 Mo. 541; State ex rel. Garresche v. Drabelle, 258 Mo. 568. The census of 1920 showed that Palmyra had a population of slightly less than 2000. (a) The city of Palmyra, existing under a special charter is not affected by the provisions of Sec. 8399, R. S. 1919, as amended by the Act of March 29, 1921, Laws 1921, p. 517. Nor by that act as it was further amended by the act of April 4, 1923, Laws 1923, pp. 276, 277, 278. The act of March 29, 1921, applies to cities of the fourth class. A companion act was passed by the same Legislature and approved March 29, 1921, which affects cities only of the third class; this is found in Laws 1921, pp. 518, 519, 520. A companion act was passed by the same Legislature and approved March 29, 1921, which affects only cities of the second class. This is found in Laws 1921, pp. 521, 522. A companion act was passed by the same Legislature and approved March 29, 1921, and is found in Laws 1921, p. 522, and this act affects only towns and villages. A companion act was passed by the same Legislature and approved March 29, 1921, which affects certain cities organized under a special charter; but by its terms it is specifically limited to those cities which contain more than 30,000 people and less than 50,000, so that none of these acts which undertake to limit the amount of assessments in any way affect the city of Palmyra. The only one of these acts that the plaintiff in error has pleaded is Section 8399, which applies only to cities of the fourth class, and does not in any wise apply to the city of Palmyra. (6) No error was made in permitting the amendment of the alternative writ of mandamus. Sec. 1290, R. S. 1919; State ex rel. Printing Co. v. Dryer, 183 Mo.App. 463; State ex rel. Harrison v. Hill, 211 Mo.App. 623; State ex rel. Bank v. Bourne, 151 Mo.App. 104; State ex rel. v. Hudson, 226 Mo. 239; State ex rel. v. Baggott, 96 Mo. 63. (7) An obedience to the peremptory writ of mandamus, would not impair, or otherwise affect any existing contract of the plaintiff in error with respect to its bonded indebtedness. Mo. Constitution, Art. 10, sec. 12; State ex rel. v. Allen, 183 Mo. 283; Evans v. McFarland, 186 Mo. 703; Black v. Early, 208 Mo. 281; State ex rel. city of Dexter v. Gordon, 251 Mo. 303; State ex rel. v. Hackman, 275 Mo. 534. (a) The above provision of the Constitution is mandatory and self enforcing without any further legislative enactment. (b) In the absence of proof to the contrary it is to be presumed that in issuing its bonds, the city and its officials complied with the mandatory provisions of the Constitution. Delmar Inv. Co. v. Lewis, 271 Mo. 317; Kansas City v. Brown, 286 Mo. 1. The city of Palmyra (being under a special charter and) having a population of more than 1000 persons and less than 10,000 persons, the tax rate is limited to fifty cents on the hundred dollars valuation; this restriction applies to taxes of every kind and description, whether general or special, except taxes to pay valid indebtedness. Mo. Constitution, Art. 10, sec. 11; Board of Commrs. v. Peter, 253 Mo. 520.

Lindsay, C. Seddon, C., concurs.

OPINION

LINDSAY

Julia Tipton Heather obtained in the Circuit Court of Macon County a judgment against the city of Palmyra for $ 7,000, for personal injuries sustained by her, which, upon appeal, was affirmed by the Kansas City Court of Appeals. Execution issued thereon and was returned wholly unsatisfied. She then obtained from the Macon Circuit Court a writ of mandamus, requiring the city and its officers to make a levy of taxes for the payment of the judgment. The proceeding here upon writ of error seeks to reverse the judgment awarding a peremptory writ of mandamus. The amount in dispute, exclusive of costs, is in excess of $...