State ex rel. Gentry v. Becker, 38447.

• Decision Date: 06 July 1943
• Docket Number: No. 38447.,38447.
• Citation: 174 S.W.2d 181
• Parties: STATE OF MISSOURI at the Relation and to the Use of WILLIAM R. GENTRY and JOHN L. GILMORE v. HONORABLE WILLIAM DEE BECKER, LOUIS NOLTE and MICHAEL J. HART, as Members of the Board of Estimate and Apportionment of the City of St. Louis, Missouri, and MICHAEL J. HART, President of the Board of Aldermen of the City of St. Louis, Missouri, LOUIS A. KENKEL, JAMES P. BRODERICK, LOUIS COMERFORD, JOHN J. O'CONNOR, HERMAN NOVACK, JOSEPH B. SCHWEPPE, EDWARD J. COURTIAL, BERNARD J. FITZSIMMONS, RICHARD NICHOLS, DENIS T. BAHLINGER, EDGAR S. NICOLAI, LAWRENCE P. WALSH, CHARLES E. ALBANESE, WALTER H. TOBERMAN, LOUIS A. LANGE, CHARLES B. O'CONNOR, THOMAS C. TURNER, AUGUST MEIER, ORVILLE A. ARMSTRONG, WALTER W. ZIEGENBALG, GUS A. HARTKOPF, EDGAR J. FEELY, EDWARD LEE DUKE, LOUIS G. BERRA, CLAUDE I. BAKEWELL, LEROY E. COUPLIN, CHARLES G. KRATOVIL, WILLIAM J. WARNICK, as Members of the Board of Aldermen of the City of St. Louis, Missouri, Appellants.
• Court: Missouri Supreme Court

174 S.W.2d 181

STATE OF MISSOURI at the Relation and to the Use of WILLIAM R. GENTRY and JOHN L. GILMORE v. HONORABLE WILLIAM DEE BECKER, LOUIS NOLTE and MICHAEL J. HART, as Members of the Board of Estimate and Apportionment of the City of St. Louis, Missouri, and MICHAEL J. HART, President of the Board of Aldermen of the City of St. Louis, Missouri, LOUIS A. KENKEL, JAMES P. BRODERICK, LOUIS COMERFORD, JOHN J. O'CONNOR, HERMAN NOVACK, JOSEPH B. SCHWEPPE, EDWARD J. COURTIAL, BERNARD J. FITZSIMMONS, RICHARD NICHOLS, DENIS T. BAHLINGER, EDGAR S. NICOLAI, LAWRENCE P. WALSH, CHARLES E. ALBANESE, WALTER H. TOBERMAN, LOUIS A. LANGE, CHARLES B. O'CONNOR, THOMAS C. TURNER, AUGUST MEIER, ORVILLE A. ARMSTRONG, WALTER W. ZIEGENBALG, GUS A. HARTKOPF, EDGAR J. FEELY, EDWARD LEE DUKE, LOUIS G. BERRA, CLAUDE I. BAKEWELL, LEROY E. COUPLIN, CHARLES G. KRATOVIL, WILLIAM J. WARNICK, as Members of the Board of Aldermen of the City of St. Louis, Missouri, Appellants.

No. 38447.

Supreme Court of Missouri.

Division Two, July 6, 1943.

Rehearing Denied, September 7, 1943.

Motion to Transfer to Banc Overruled, October 4, 1943.

Appeal from Circuit Court of the City of St. Louis. — Hon. Edward M. Ruddy, Judge.

REVERSED.

Joseph F. Holland, City Counselor, H.A. Hamilton and Albert Miller for appellants.

(1) Relators' claim is not a valid obligation of the City of St. Louis. Our laws make it the duty of the Circuit Attorney to represent the State in a criminal contempt proceeding and in habeas corpus proceedings attacking the judgment of commitment entered therein. A valid obligation is a sine quo non of a petition to enforce a claim by mandamus. Secs. 12942, 12945, 12898, R.S. 1939; 13 C.J., pp. 57, 58, 60, secs. 81, 82; Thatcher v. St. Louis, 343 Mo. 597. (2) Mandamus will not lie to compel the Board of Estimate and Apportionment to submit and recommend, and the Board of Aldermen to enact, an ordinance appropriating money to pay the asserted claim of respondents for services rendered, where said claim had not been reduced to a judgment, and payment of said claim was not authorized, either by statute, or by appropriation, as relators had an adequate and specific remedy by an action at law. Section 48, Art. IV, Const. of Missouri; Perkins v. Burks, 78 S.W. (2d) 845, 336 Mo. 248; State ex rel. v. Rose, 281 S.W. 396, 313 Mo. 369; Mansfield v. Fuller, 50 Mo. 338; State v. Clay County, 46 Mo. 231; State ex rel. v. Wehmeyer, 113 S.W. (2d) 1031; State ex rel. v. Cornish, 24 S.W. (2d) 667, 223 Mo. App. 978. (3) Mandamus is not a proper remedy to compel the payment of an account, or a claim, where material fact questions determinable in an action at law may arise. It does not lie to establish, but only to enforce a claim. Mansfield v. Fuller, supra; Ward v. Cole County Court, 50 Mo. 401; State ex rel. v. Marshall, 82 Mo. 484; State ex rel. v. County Court of Cape Girardeau County, 109 Mo. 248; State ex rel. v. Houston, 41 S.W. (2d) 194; State ex rel. v. Linville, 8 S.W. (2d) 623; State ex rel. v. Becker, 9 S.W. (2d) 153; State ex rel. v. Neaf, 130 S.W. (2d) 509, 344 Mo. 905, (where it is said: "The office of mandamus is to execute not to adjudicate"). State ex rel. v. Bank, 163 S.W. 945, 174 Mo. App. 589; State ex rel. v. Cook, 201 S.W. (2d) 361. (4) Courts will not undertake to enforce, by mandamus, simple common-law rights between individuals, as to compel the payment of money; nor where there is another specific legal remedy. State ex rel. v. Howard County Court, 39 Mo. 375; Mansfield v. Fuller, 50 Mo. 338, l.c. 339 (where it is said: "It is never resorted to to enforce the payment of a debt when it can be collected by suit, unless the tribunal having jurisdiction refuses to act, in which case the order will be not to render a specific judgment, but to proceed with the case"). State ex rel. v. Engelman, 86 Mo. 551; American Fire Alarm Co. v. Board of Police Comrs., 285 Mo. 581; State ex rel. v. Rose, 281 S.W. 396, 313 Mo. 369; State ex rel. v. Cornish, 24 S.W. (2d) 667, 223 Mo. App. 978; State ex rel. v. Bourke, 129 S.W. (2d) 866, 344 Mo. 826; State ex rel. v. Supreme Temple Pythian Sisters, 54 S.W. (2d) 468, 227 Mo. App. 557; United States ex rel. v. Norfolk & Western Ry. Co., 138 Fed. 849. (5) The claim must be reduced to judgment and in the absence of such judgment mandamus does not lie to compel payment of such claim. State ex rel. v. Jackson County Court, 17 S.W. (2d) 572; State ex rel. v. Cornish, 223 Mo. App. l.c. 981; United States v. Helvering, 301 U.S. 540, 57 S. Ct. 855. (6) In mandamus, as in other cases, a demurrer confesses the facts which are well pleaded in the pleading against which it is directed, but it does not confess conclusions of law drawn from those facts. State ex rel. v. Hackman, 204 S.W. 513, 275 Mo. 47; State ex rel. v. Thatcher, 92 S.W. (2d) 640, 338 Mo. 622; State ex rel. v. Smith, 120 S.W. (2d) 184. (7) On the contrary, a demurrer denies the legal proposition involved in a pleading. Bliss on Code Pleading, secs. 136-137; Blaine v. Knapp & Co., 140 Mo. 251; Curry v. Lackey, 35 Mo. 389; Baker v. Berry, 37 Mo. 306; Meek v. Hurst, 223 Mo. 668. (8) A public law cannot be thus confessed away (or be made to apply). State ex rel. v. Aloe, 152 Mo. 466. (9) Neither is an averment of a matter of law admitted by the demurrer. Bradley v. Franklin Co., 65 Mo. 638; Donovan v. Boeck, 217 Mo. 70; Ruggles v. International Assn., 52 S.W. (2d) 860, 331 Mo. 20. (10) In determining the legal effect of a demurrer, the court will look to the whole petition, and a demurrer does not admit as a fact that which the pleading contradicts; and a statement made as conclusive, or general, cannot be held to be unaffected by specific statements of particulars which necessarily enter into and qualify, or limit, the general statement, and the specific allegations respecting the same matter control general allegations. Searcy v. Clay County, 176 Mo. 493; Farm & Home Savings & Loan Assn. v. Armstrong, 85 S.W. (2d) 461, 337 Mo. 349; Anderson v. Inter-river Drain. & Levee Dist., 274 S.W. 448, 309 Mo. 189. (11) Mandamus will not lie against an officer of a legislative body, as such officer is acting in his legislative capacity and performing his legislative function and duty. It would be a usurpation of power for the court to assume functions of government which belong exclusively to the law-making body. The recommendation, submission, and enactment of any ordinance appropriating the $12,000 with which to pay respondents' claim required the exercise of judgment and discretion, with which the court could not interfere. State ex rel. v. Bolte, 151 Mo. 362; Albright v. Fisher, 164 Mo. 56; State ex inf. v. Shepherd, 177 Mo. 208; State ex rel. v. Woodbury, 10 S.W. (2d) 524, 321 Mo. 275; State ex rel. v. Hitchcock, 241 Mo. 433; State ex rel. v. Roach, 230 Mo. 408; Bankers' Life Co. v. Chorn, 186 S.W. 681; Fergus v. Marks, 321 Ill. 510, 46 A.L.R. 960. (12) An officer clothed with discretion as to the manner in which he will perform his duty cannot be required to perform it in a particular manner. 18 R.C.L., p. 186; State ex rel. v. Neville, 57 S.W. 1012, 157 Mo. 386; State ex rel. v. Wilson, 49 Mo. 146; State ex rel. v. Homer, 155 S.W. 405, 249 Mo. 58. (13) Mandamus is not a proper remedy to enforce respondents' claim. Respondents' amended petition, on its face, shows that they have a specific and adequate remedy at law; hence, mandamus will not lie. To entitle respondents to the extraordinary writ of mandamus, their right thereto must be clear, unequivocal, specific and positive; not doubtful. Perkins v. Burks, 78 S.W. (2d) 845, 336 Mo. 248; State ex rel. v. Ross, 245 Mo. 36, 49 S.W. 451; State ex rel. v. Wenom, 32 S.W. (2d) 59, 326 Mo. 352; State ex rel. v. Kelly, 142 S.W. (2d) 1091; State ex rel. v. Thompson, 293 S.W. (2d) 391, 316 Mo. 1169; State ex rel. v. Linville, 8 S.W. (2d) 623. (14) A petition for a writ of mandamus must state specifically all the facts which give the party the right to maintain an action or to demand the relief he seeks, and must also show that he has no other specific remedy. State ex rel. v. Governor, 39 Mo. 388; State ex inf. v. Kansas City Gas Co., 254 Mo. 515, 163 S.W. 854; Hambelton v. Town of Dexter, 89 Mo. 188; State ex rel. v. Ross, supra; State ex rel. v. Bourke, 129 S.W. (2d) 866, 344 Mo. 826; Perkins v. Burks, 78 S.W. (2d) 845, 336 Mo. 248; State ex rel. v. County Court, 109 Mo. 248. (15) The circuit court, in general term, had not acquired jurisdiction over respondents' claim or over the appellants or the City of St. Louis and did not have jurisdiction to make said allowance of $12,000 in favor of respondents as no suit was filed, or had ever been filed, on respondents' said claim. Jurisdiction of a suit to recover said claim is conferred by the constitution and statutes only; and, the right of trial by jury shall remain inviolate. No power exists in any person, or tribunal, to divest a person of his property without due process of law. Secs. 28, 30, Art. II, Const. of Missouri; Arts. V, XIV, Amendments, Const. of United States; Sec. 1099, R.S. 1939; Kansas City v. Smith, 141 S.W. (2d) 1103, 238 Mo. 323; King v. Mann, 286 S.W. 100, 315 Mo. 318; Kansas City, etc., Ry. Co. v. Latham, 182 S.W. 717. (16) There is no such thing as inherent power of court, if, by that, is meant a power which a court may exercise without a law authorizing it. Messner v. Giddings, 65 Texas 300. (17) Allowances against a city, or municipality, for attorney fees, in a contempt proceeding, which were not authorized either by statute or by appropriation, contravenes the constitution of the State of Missouri. Sec. 48, Art. IV, Const. of Missouri; State ex rel. v. Hackmann, 208 S.W. 445, 276 Mo. 600; Carter-Water Corp. v. Buchanan County, 129 S.W. (2d) 914; Scott v. County of St. Louis, 111 S.W. (2d) 186, 341 Mo. 1084; Hillside Securities Co. v. Minter, 254 S.W. 188, 300 Mo. 380. (18) No contract in writing was ever had between respondents...