State ex rel. Kansas City v. Harris

• Decision Date: 14 June 1948
• Docket Number: 40771
• Parties: State of Missouri ex rel. Kansas City, Missouri, a Municipal Corporation, Relator, v. Brown Harris, Judge of Division No. 4 of of the Circuit Court of Jackson County, Missouri, at Kansas City
• Court: Missouri Supreme Court

212 S.W.2d 733

357 Mo. 1166

State of Missouri ex rel. Kansas City, Missouri, a Municipal Corporation, Relator, v. Brown Harris, Judge of Division No. 4 of of the Circuit Court of Jackson County, Missouri, at Kansas City

No. 40771

Supreme Court of Missouri

June 14, 1948

Rehearing Denied July 12, 1948.

Original Proceeding in Prohibition.

Preliminary rule discharged.

David M. Proctor, City Counselor, John J. Cosgrove and E. R Seaver, Assistant City Counselors, for relator.

(1) The injunction suit is barred, and therefore respondent does not have jurisdiction over the subject matter thereof, because the Supreme Court has heretofore taken jurisdiction over the Annexation Case, which is still pending and which involves all the issues of and the parties to the injunction suit. O'Malley v. Lamb, 342 Mo. 171, 113 S.W.2d 810; Weisheyer v. Weisheyer, 14 S.W.2d 486; 1 C.J.S. "Abatement and Revival," sec. 17, p. 50; Art V, Sec. 4, Constitution of Missouri, 1945. (2) Plaintiffs' intervening in the Annexation Case, and asking that Kansas City be denied the right to annex the disputed area, bars a later suit by plaintiffs wherein they raise the same issues and ask that Kansas City be enjoined from issuing municipal bonds, for the reason that the former constitutes a binding election on the part of plaintiffs between two inconsistent remedies. State ex rel. Kimbrell v. Peoples Ice, Storage & Fuel Co., 246 Mo. 168, 151 S.W. 101; Mac Murray-Judge Architectural Iron Co. v. St. Louis, 138 Mo. 608, 39 S.W. 467; Walker v. Charlot, 197 Mo.App. 536, 196 S.W. 1085; 28 C.J.S., "Election of Remedies," sec. 29, p. 1101.

James P. Aylward, George V. Aylward, Terence M. O'Brien and William B. Teasdale for amici curiae.

(1) The relief sought in the bond suit -- a judgment that the bond election is invalid and an injunction against Kansas City's issuance of the bonds -- cannot possibly be granted in the statutory quo warranto proceeding. Where the entire relief sought in the second case cannot be granted in the first, the second will not be stayed or abated. Nolker v. Nolker, 257 S.W. 798; Pocoke v. Peterson, 256 Mo. 501, 165 S.W. 1017; State v. Dougherty, 45 Mo. 294; Moore v. John J. Dowling Realty Co., 166 S.W.2d 238. (2) In a quo warranto proceeding, the court's judgment cannot go beyond that provided in Sec. 1786, R.S. 1939. The following authorities so hold. State ex inf. Pope v. Mansfield Special Road Dist., 299 Mo. 663, 253 S.W. 714; State ex rel. Ewing v. Francis, 88 Mo. 557; State ex rel. Ponath v. Hamilton, 240 S.W. 445; State ex rel. Attorney General v. Hyde, 2 S.W.2d 212. (3) The writ of quo warranto is not a substitute for injunction. State ex inf. McKittrick v. Murphy, 347 Mo. 484, 148 S.W.2d 527. (4) Furthermore, relief from municipal taxation cannot be granted in a quo warranto proceeding against the city. State ex inf. Bates, Prosecuting Attorney ex rel. Center Creek Mining Co. v. Carterville, 183 S.W. 1093. (5) The two causes of action are not the same. The two cases are aimed at completely different things. The quo warranto proceeding attacks North Kansas City's municipal jurisdiction over its alleged annexation area; the bond suit attacks Kansas City's bond election. (6) In quo warranto, as in other civil proceedings, the cause of action should exist and be complete when the proceedings are commenced. State of Nebraska ex rel. Attorney General v. Consumers Public Power Dist., 143 Neb. 753, 10 N.W.2d 784, 152 A.L.R. 480. (7) The issues are different. The issue in the quo warranto proceeding is: Shall North Kansas City be ousted from municipal jurisdiction over its alleged annexation area? This is the only issue legally possible in that proceeding. Sec. 1786, R.S. 1939; State ex inf. Pope v. Mansfield Special Road Dist., 299 Mo. 663, 253 S.W. 714; State ex rel. Ewing v. Francis, 88 Mo. 557; State ex rel. Ponath v. Hamilton, 240 S.W. 445; State ex rel. Attorney General v. Hyde, 2 S.W.2d 212. (8) Furthermore, the quo warranto intervenors could not enlarge or change the issues in that proceeding. Vinson v. Washington Gas Light Co., 321 U.S. 489, 64 S.Ct. 731, 88 L.Ed. 883; Columbia Gas & Electric Corp. v. American Fuel & Power Co., 322 U.S. 379, 64 S.Ct. 1068, 88 L.Ed. 1337; Chandler & Price Co. v. Brandtjen & Kluge, Inc., 296 U.S. 53, 56 S.Ct. 6, 80 L.Ed. 39. (9) Even if North Kansas City is ousted, this court in the quo warranto proceeding cannot confer municipal jurisdiction over the disputed area upon Kansas City. A quo warranto judgment may oust one party, but it cannot confer the disputed jurisdiction on another. State ex rel. Ewing v. Francis, 88 Mo. 557; State ex rel. Ponath v. Hamilton, 240 S.W. 445. (10) The same parties are not involved. The claim made by the intervenors in the quo warranto proceeding is that Kansas City's annexation is invalid, and the claim made by the plaintiffs below is that Kansas City's bond election is invalid. As these parties are not asserting identical claims, they cannot be said to be members of the same class. Persons are members of the same class only when their legal position and interests are identical. Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22, 132 A.L.R. 741. (11) The two actions were not commenced by the same plaintiff. The defense of a prior suit pending applies only when the plaintiff in both suits is the same, and both are commenced by himself, and not to cross-suits by the plaintiff in one who is the defendant in the other. State ex rel. Aetna Life Ins. Co. v. Knehans, 31 S.W.2d 226; Long v. Lackawanna Coal & Iron Co., 233 Mo. 713, 136 S.W. 673; Pocoke v. Peterson, 256 Mo. 501, 165 S.W. 1017; Rodney v. Gibbs, 184 Mo. 1, 82 S.W. 187; Northcutt v. McKibben, 236 Mo.App. 605, 159 S.W.2d 699. (12) Even if it be assumed that in each of the two actions the plaintiffs, the parties, the causes of action, the issues, and the objects are the same, proper procedure would be to stay the bond case, not to dismiss it or to prohibit its prosecution. This principle is well settled. Sharkey v. Kiernan, 97 Mo. 102, 10 S.W. 886; Brown v. Simpson, 201 S.W. 898; Aetna Ins. Co. v. Carondelet, 51 F.Supp. 500; Greer v. Scearce, 53 F.Supp. 807; State ex rel. Bernero v. McQuillin, 246 Mo. 517, 152 S.W. 347; Moore v. John J. Dowling Realty Co., 106 S.W.2d 238. (13) Relator's election of remedies theory cannot be considered here because it was not presented to the court below. It is well settled that prohibition will not lie unless the matter has been first presented to the court below. State ex rel. National Rys. v. Rutledge, 331 Mo. 1015, 56 S.W.2d 28, 85 A.L.R. 1378; State ex rel. Brncic v. Huck, 296 Mo. 374, 246 S.W. 303. (14) Relator's election of remedies proposition cannot be considered because it was not pleaded. Election of remedies being an affirmative defense, it must be pleaded in order to be available. Bartlett v. McCallister, 316 Mo. 129, 289 S.W. 814; Powell v. Dorton, 321 Mo. 639, 12 S.W.2d 453; Denny v. Guyton, 327 Mo. 1030, 40 S.W.2d 562; Sec. 40, Civil Code of Missouri. (5) In original proceedings in this court, matters of affirmative defense must be pleaded; and, if not, they cannot be considered. State ex inf. Attorney General v. Arkansas-Missouri Power Co., 339 Mo. 15, 93 S.W.2d 887. (16) As the causes of action are different, the election of remedies doctrine does not apply. It applies only where the party has but one cause of action, one right infringed, one wrong to be redressed. The doctrine does not require election between distinct causes of action arising out of separate and distinct facts. Broz v. Hedgwood, 349 Mo. 920, 163 S.W.2d 1009. (17) The election of remedies doctrine does not apply because the bond suit cause of action did not even exist when the amended intervening petition was filed in the quo warranto proceeding. The doctrine of election of remedies applies only where there are two existing alternative remedies available. State ex rel. Bank of Nashua v. Holt, 348 Mo. 982, 156 S.W.2d 708. (18) Quo warranto intervenors filing of amended petition did not constitute an election of remedies as to the bond election because plaintiffs below did not know that defendants below would subsequently begin the bond election proceedings. Knowledge of the facts is essential to . . . election. Sutorius v. Mayor, 350 Mo. 1235, 170 S.W.2d 387. (19) Relator's election of remedies proposition is without merit because the alleged election is incomplete in that the quo warranto proceeding has not yet been determined. An election of remedies is not complete until one of the remedies has been embodied in a judgment. Tracy v. Aldrich, 236 S.W. 347.

Hyde, J. All concur except Tipton, J., not sitting.

OPINION

HYDE

Kansas City seeks to prohibit respondent Judge from proceeding in an injunction suit which sought to declare invalid its municipal bond election of November 4, 1947 and to enjoin the City from issuing or selling any of the bonds.

The City contends that respondent had no jurisdiction over the subject matter of the injunction suit because this court had previously taken jurisdiction over a quo warranto case, State ex inf. J. E. Taylor, Attorney General ex rel. Kansas City v. City of North Kansas City, No. 40216, which involves all the issues of and the parties to the injunction suit. It says the only question presented is: Has the Circuit Court jurisdiction to decide an issue in a class action where the same issue is presented in a class action by the same class as interveners in a cause of which the Supreme Court has previously taken jurisdiction?

The quo warranto case was commenced in December 1946 after both Kansas City and North Kansas City had voted to annex part of the same territory in Clay County. It is still pending in this Court, awaiting the report of the Special...