State v. City of Westport

• Decision Date: 23 June 1896
• Parties: STATE ex rel. HAHN et al. v. CITY OF WESTPORT et al.
• Court: Missouri Supreme Court

36 S.W. 663

135 Mo. 120

STATE ex rel. HAHN et al. v. CITY OF WESTPORT et al.

Supreme Court of Missouri.

June 23, 1896.

COURTS — JURISDICTION — COLORABLE DISPUTES.

Where mandamus proceedings to compel the issuance by a municipality of new tax

bills in lieu of old ones theretofore issued for a public improvement are brought merely from the desire of all the parties to secure a ruling by the supreme court as to the validity of the old tax bills, and not on account of any real controversy over the refusal to issue the new tax bills, the proceedings are properly dismissed.

In banc. Appeal from circuit court, Jackson county.

Mandamus proceedings on the relation of August Hahn and another against the city of Westport and others. There was a judgment dismissing the proceedings, and relators appeal. Affirmed.

Moore & Vaughan and C. O. Tichenor, for appellants. A. S. Marley, Pratt, Ferry & Hagerman, Scarritt, Griffith & Jones, and F. W. Griffin, for respondents.

ROBINSON, J.

This is a proceeding by mandamus, instituted at the relation of August Hahn and John C. Fielding, and directed against the city, the mayor, board of aldermen, and engineer of the city of Westport, as defendants, to compel the issuance of certain tax bills against certain tracts of lands in said city for the amount chargeable against them, to pay for the grading of Thirty-Ninth and McGee streets, in said city. The work of grading the streets was completed in 1893, and tax bills were then issued, and delivered to the contractor, Fielding, one of the relators herein, to pay the price of the work, which amounted to something over $9,000, which, at the time of their issuance, were sold and assigned by Fielding to his co-relator, Hahn. All the bills thus issued, except those described in the alternative writ, amounting to $2,579.08, have been paid. The alternative writ, after reciting all the ordinances of the city authorizing the doing of the work in question, and the contents of the tax bills heretofore issued to pay therefor, declares the ordinance, as passed by the city, to be insufficient to warrant the issuance of the tax bills above named, and closes with this command to the defendants: "By ordinance, levy and collect special taxes on the owner or occupier of all lots or tracts of land described in each of the tax bills hereinbefore enumerated and described, to which said tax bills, and the record thereof, reference is had for a description of such lands, for the purpose of paying the cost of the grading aforesaid, or that part of such cost which is, under the law, chargeable against the said lots or tracts of land, and that you issue and deliver to the petitioners valid special tax bills in lieu of the bills hereinbefore enumerated and described, or that you show cause to this court, at its session in the city of Independence, at 9:30 a. m. on the 9th day of September, 1895, why you have not done so." During the progress of the proceedings, and before the issues were finally made up, upon which the court acted, the personel of several of the defendant office holders changed, by resignation and otherwise, and we give the following as a history of the different pleadings filed by the different defendants, and the different dates thereof: September 13, 1895, F. W. Griffin, as attorney for the city of Westport, and also as attorney for Aldermen Tobin and Merriwether, filed demurrers to the alternative writ. And on the same day Aldermen McMillan, Banta, Knepp, Wheeler, and Balcolm, and Engineer Robertson, filed, by their attorney, a like demurrer. September 17, 1895, R. J. Ingraham, as city attorney, filed a written withdrawal of demurrer filed by F. W. Griffin for the city. On the same day, Slavens, as mayor, on his own behalf, and on behalf of D. D. Drake, as alderman, filed a motion to dismiss the case, on the ground that the writ was collusive and fraudulent; and on same day B. F. Jones, amicus curiæ, filed suggestion that the suit was collusive and fraudulent. October 18, 1895, the city of Westport, R. J. Ingraham, mayor, and D. D. Drake, as alderman, by their attorney, filed their joint return, admitting most of the facts, but claiming, as independent defenses: "First. That since the issuance of the alternative writ J. W. Slavens, as mayor, and F. T. Robertson, as engineer, original defendants, had resigned their offices, and R. J. Ingraham had been appointed mayor, and H. B. Abercrombie, city engineer. Second. No good-faith demand was ever made for new tax bills, but any demand made was pursuant to a fraudulent scheme to have instituted a collusive suit of the character hereinafter described. Third. This is a collusive and fraudulent suit, in which no adverse interests are at stake, and in which the interests of the parties are identical; certain of the defendants conspiring with relators to impose upon the court a pretended controversy for the sole purpose of obtaining a decision as to the validity of certain tax bills against third persons who are not parties to the action. The active conspirators in the fraudulent scheme are defendants Aldermen McMillan, Banta, and Tobin. Fourth. The alternative writ joins two separate and distinct pieces of work, and there is therefore an improper joinder." On the same day, October 18th, defendants McMillan, Banta, Knepp, Wheeler, and Balcolm, and Robertson, the former engineer of the city, by their attorney, filed what they call their separate return to the alternative writ, admitting the facts stated in such writ to be true, but denying the conclusion of law set out in the writ (a demurrer, in effect), and then proceeding with a denial of the allegations of fraud and conspiracy charged to them by the suggestion filed by B. F. Jones as a friend of the court, and the like charges made against themselves in the return of the city of Westport, Ingraham, as mayor, and Drake, alderman. Upon the demurrer filed by Aldermen Tobin and Merriwether, no action was ever taken, and no return was ever made. On the above pleadings the court proceeded to hear the testimony as offered by all parties pleading, on the different issues as raised by each, and, at the conclusion thereof entered its judgment dismissing plaintiffs' writ, and the entire proceedings; and, for its refusal to set aside its finding and judgment and award to the relators a new hearing, they have prosecuted their appeal to this court.

Just what was the moving consideration with the court, which resulted in its denial of the writ and dismissal of the proceedings, cannot be accurately determined by declarations of law given on the different issues of facts raised, as defendants asked none, and all the declarations of law, as well as the instructions in the nature of finding of facts, tendered by relators, were refused. But in their tender and refusal two pertinent facts in this inquiry are made quite manifest: First, by what relators term their refused instruction numbered 2, which reads as follows: "(2) The court declares that there is no evidence of any fraud, either on the part of relators, or on the part of any of the respondents." We know that the trial judge, who had all the parties before him, heard the testimony, and witnessed their demeanor while upon the stand, discovered some evidence of fraud on part of the relators and a part of the defendants, in the manner of getting up this, as a fictitious suit, in order to get a ruling from this court upon a question that was not a real, substantial controversy between those who appeared as adverse parties to the litigation on the face of the papers. Second, by a reading of relators' refused instructions 4 and 5, as follows: "(4) Unless the tax bills sought to be compelled to be issued will be valid, then this writ must be denied. (5) The tax bills sought to be compelled to be issued will be valid." It is equally as apparent that relators' real effort was more to secure a ruling of the court as to the validity or invalidity of the tax bills heretofore issued, than it was to secure absolutely the issuance to them of new tax bills. While the reasons that led the trial court to the judgment entered herein are not as clear as if declarations of law had been given upon all the issues of fact raised by the pleadings and testimony, still the reasons are overwhelming, from an examination of the facts as disclosed by the record, why the trial court should be sustained in its judgment denying its final writ, and dismissing the proceedings. Without going into the details of the testimony, we feel justified in announcing that upon almost every page of the record facts are disclosed that give unmistakable evidence of a mere colorable dispute between relators and defendants, and upon which relators and most of the defendants desire simply and only a ruling as to the validity of the tax bills heretofore issued to, and now held by, relators. That this is not a good-faith proceeding on the part of relators to have issued to them absolutely new tax bills, in lieu of those heretofore issued by the city and now held by relator Hahn (according to the command of the alternative writ), is conclusively shown, in fact,...