State ex rel. Emerson v. City of Mound City

• Decision Date: 17 July 1934
• Docket Number: 31475
• Citation: 73 S.W.2d 1017,335 Mo. 702
• Parties: State ex rel. Agnes Emerson v. City of Mound City et al., Appellants
• Court: Missouri Supreme Court

73 S.W.2d 1017

335 Mo. 702

State ex rel. Agnes Emerson v. City of Mound City et al., Appellants

No. 31475

Supreme Court of Missouri

July 17, 1934

Rehearing Denied July 17, 1934.

Appeal from Andrew Circuit Court; Hon. Guy B. Park, Judge.

Reversed.

Pyle & Vonderschmidt for appellants.

(1) "The Board of Aldermen of the City of Mound City is limited to a levy of fifty cents on the hundred dollars valuation for general purposes as the city has a population of sixteen hundred." Mo. Const., Art. 10, Sec. 11. At the time this action was instituted the rate of taxation for general purposes in Mound City was up to the constitutional limit. (2) "It is not the function of a writ of mandamus to direct the course of judicial action in a given cause but the writ may issue to compel a respondent clothed with judicial power, to proceed with cause." State ex rel. McDermott Realty Co. v. McElhinney, 246 Mo. 56. "Where a discretion is vested in a public officer, the courts will by mandamus compel the officer to exercise that discretion, but will not direct how it shall be exercised, or what conclusion or judgment shall be reached." State ex rel. Best v. Jones, 155 Mo. 576; State ex rel Gehrig v. Medley, 28 S.W.2d 1043; State ex rel Black & Gilmore v. Wilson, 158 Mo.App. 120, 139 S.W. 705. "In accordance with elementary principles mandamus will not lie to compel a municipal board or officer to do any act which he is without authority or power to perform. It is also essential to the right to have the writ issued that the respondent officer or board should be under a plain legal duty to perform the act. The writ will not issue where the duty or power is doubtful. Mandamus: 38 C. J. 691, sec. 261." The imposition of a tax for a specific purpose is a legislative act implying discretion and should not be confused with levying a tax already authorized. State ex rel. Carpenter v. St. Louis, 2 S.W.2d 727, 318 Mo. 898.

Pross T. Cross and Gerald Cross for respondent.

Appellants, in point one of their brief, contend that the limitation of taxing power in Section 11, Article X of the Constitution, applies to the levying of taxes to pay a judgment for tort, and that, therefore, a levy in excess of that limit cannot be required. This contention is erroneous and is not supported by authority. Heretofore, this court has repeatedly and uniformly held that the limitation set out in Section 11 of the Constitution does not apply to obligations on judgments arising in tort. Also, other jurisdictions have adhered to the same rule. Heather v. City of Palmyra, 298 S.W. 750; Heather v. City of Palmyra, 276 S.W. 872; State ex rel. Pyle v. University City, 8 S.W.2d 73; Conner v. Nevada, 188 Mo. 148; State ex rel. Poole v. Willow Springs, 183 S.W. 589; Menar v. Sanders, 183 S.W. 949; Hopkins County, etc., v. St. Bernard Coal Co., 114 Ky. 153, 70 S.W. 289; O'Bryan v. City of Owensboro, 113 Ky. 680, 68 S.W. 858, 69 S.W. 800, 24 Ky. L. Rep. 645; Bloomington v. Perdue, 99 Ill. 329; Flagstaff v. Gomez, 242 P. 1003; Hagan v. Commissioners' Court, 160 Ala. 544, 49 So. 417, 37 L. R. A. (N. S.) 1097; Evans v. Yost, 255 F. 726; Rice v. Walker, 44 Iowa 458; Lorence v. Bean, 18 Wash. 36, 50 P. 582; Lamar v. City of Lamar, 128 Mo. 188, 26 S.W. 1025; Const. of Mo., Art. X, secs. 11, 12; Sec. 1233, R. S. 1929.

OPINION

Sturgis, C.

This is a suit in mandamus to compel the defendant city and its officials to levy and collect a special tax over and above its levy for ordinary city purposes and to use the proceeds of same when collected to pay and discharge a judgment in relator's favor against said city. The record discloses that relator, Agnes Emerson, brought suit in the circuit court against defendant city for damages for personal injuries and obtained a judgment for $ 10,000, which on appeal to this court was affirmed (Emerson v. Mound City, 26 S.W.2d 766). On the filing of the mandate of this court in the circuit court an execution was issued and returned uncollected. It is conceded that the judgment mentioned stands unpaid. No question is raised as to the pleadings or procedure in the present case. The petition and alternative writ asks that defendants be compelled to make a tax levy, in addition to the taxes levied for other purposes, of one hundred cents on the one hundred dollars valuation of the taxable property in the city, stated and conceded to be about $ 1,125,000, from year to year until the judgment and interest thereon have been fully paid and satisfied. The answer and return of defendants set up the defense that the defendants have no power or authority to levy and collect any such additional tax and are prohibited from doing so by Section 11, Article X, of the Constitution of Missouri. On the hearing it was admitted that defendant Mound City was at the time a city of the fourth class, organized as such and having a population of about sixteen hundred. The court entered judgment on February 6, 1931, for plaintiff and ordered issued a peremptory writ of mandamus reciting the facts above stated and commanding and directing the defendants and their successors in office, "Upon the receipt of this writ and with dispatch and in due time and at the time of the first levy of taxes for city purposes hereafter, to assess and make and cause to be assessed and made a tax levy in addition to the taxes levied for other purposes in said city, of one hundred cents on the one hundred dollars of the assessed valuation of all of the property in said city, by law made taxable by said city, and successive levies in sufficient amounts from year to year thereafter until said judgment, interest thereon and costs incident thereto and the costs of this mandamus proceeding have been fully paid and satisfied and sufficient funds raised and made available therefor." The defendants have perfected their appeal to this court from this judgment.

The question presented for our determination is the validity of this judgment. Can a city of the fourth class having a population of less than ten thousand be compelled by mandamus to levy and collect an annual tax in excess of the usual statutory rate of fifty cents on the one hundred dollars valuation to be used for ordinary city purposes, in order to pay a valid judgment rendered in a personal injury action? The defendants claim that the judgment in question is void in commanding the city officials of Mound City to levy an annual tax in excess of fifty cents on the one hundred dollars valuation as being in contravention of the provisions of Section 11, Article X, of the State Constitution. The parts of said section material here read:

"Taxes for county, city, town and school purposes may be levied on all subjects and objects of taxation. . . . For county purposes the annual rate on property, in counties having six million dollars or less, shall not, in the aggregate, exceed fifty cents on the hundred dollars valuation. . . . For city and town purposes the annual rate on property in cities and towns having thirty thousand inhabitants or more shall not, in the aggregate, exceed one hundred cents on the one hundred dollars valuation; . . . in cities and towns having less than ten thousand and more than one thousand inhabitants, said rates shall not exceed fifty cents on the hundred dollars valuation. . . . Said restrictions as to rates shall apply to taxes of every kind and description, whether general or special, except taxes to pay valid indebtedness now existing, or bonds which may be issued in renewal of such indebtedness."

In the omitted portions some exceptions are made as to the maximum rates specified, as, for instance, for erecting public buildings when the increased rate is submitted to a vote, but such exceptions are not material here.

I. The contention of relator is that this provision of the Constitution fixing maximum rates has no application to a tax made necessary in order to raise sufficient money to pay and discharge a valid judgment against a municipal corporation rendered in a damage suit for personal injuries; that such constitutional limitation on rates of taxation apply to the payment of debts or obligations of the municipality arising in contract only, and not those arising in tort. Counsel for relator assert that "this court has repeatedly held that the limitation set out in Section 11 does not apply to obligations or judgments arising in tort," and cite in support thereof Heather v. City of Palmyra, 317 Mo. 1320, 298 S.W. 750; Heather v. City of Palmyra, 311 Mo. 32, 276 S.W. 872; State ex rel. Pyle v. University City, 320 Mo. 451, 8 S.W.2d 73; Conner v. Nevada, 188 Mo. 148, 86 S.W. 256.

Examining these cases in the order of their rendition, it will be found that Conner v. Nevada, supra, was a suit for damages for personal injuries in which the defendant city interposed as a defense to plaintiff's recovering a judgment against the city the constitutional limitation contained in Section 12 of Article X of our Constitution, which, so far as material, reads:

"No county, city, town, township, school district or other political corporation or subdivision of the State shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the consent of two-thirds of the voters thereof voting on such proposition, at an election to be held for that purpose; nor in cases requiring such assent shall any indebtedness be allowed to be incurred to an amount including existing indebtedness, in the aggregate exceeding five per centum of the value of the taxable property therein."

The omitted parts of this section contain provisions and exceptions to the maximum amount of indebtedness which municipal corporations may incur, which are not...