State v. McElhinney

• Decision Date: 10 June 1932
• Docket Number: No. 31746.,No. 31748.,No. 31747.,No. 31749.,No. 31745.,31745.,31746.,31747.,31748.,31749.
• Citation: State v. McElhinney, 52 S.W.2d 400, 330 Mo. 1063 (Mo. 1932)
• Parties: STATE ex rel. ST. FERDINAND SEWER DIST. OF ST. LOUIS COUNTY et al. v. McELHINNEY, Judge, and four other cases.
• Court: Missouri Supreme Court

52 S.W.2d 400

STATE ex rel. ST. FERDINAND SEWER DIST. OF ST. LOUIS COUNTY et al. v.McELHINNEY, Judge, and four other cases.

No. 31745.

No. 31746.

No. 31747.

No. 31748.

No. 31749.

Supreme Court of Missouri, in Banc.

June 10, 1932.

Motion for Rehearing Overruled July 7, 1932.

Original proceedings in prohibition by the State, on the relation of the St. Ferdinand Sewer District of St. Louis County, Missouri, and others, by the State, on the relation of the Central Sewer District of St. Louis County, Missouri, and others, and by the State, on the relation of the Lemay Ferry Sewer District of St. Louis County, Missouri, and others, against Honorable Robert W. McElhinney, Judge of the Circuit Court of St. Louis County, Missouri, and by the State, on the relation of the Overland Sewer District of St. Louis County, Missouri, and by the State, on the relation of the Wellston Sewer District of St. Louis County, Missouri, and others against Honorable Fred E. Mueller, Judge of the Circuit Court of St. Louis County, Missouri.

Preliminary rule of prohibition in each proceeding made absolute.

Sidmon & Fulbright, of St. Louis, for relator St. Ferdinand Sewer Dist. of St. Louis County.

Kurt Von Reppert, of St. Louis, for relator Overland Sewer Dist. of St Louis County.

John Haley, of St. Louis, for relator Central Sewer Dist. of St. Louis County.

Herbert E. Bryant, of St. Louis, for relator Lemay Ferry Sewer Dist. of St. Louis County.

Jourdan & English, of St. Louis, for relator Wellston Sewer Dist. of St. Louis County.

Charles Claflin Allen, Jr., and Jourdan & English, all of St. Louis, for relators Mississippi Valley Trust Co., Boatmen's National Co., George H. Burr & Co., and Stix & Co.

Chauncey H. Clarke, of St. Louis, for First Nat. Co.

Chas. M. Hay and John E. Mooney, both of St. Louis, Orla M. Hill, of Clayton, and George Barnett, Thos. P. Moore, and Eliot, Blayney & Bedal, all of St. Louis, for respondents.

HENWOOD, J.

The five above-entitled proceedings are original proceedings in prohibition which involve the same issues.They were consolidated for the purposes of briefs and oral arguments and may be disposed of in one opinion.

On January 14, 1932, five injunction suits were filed in the circuit court of St. Louis county, in the name of the state of Missouri, at the relation of Harry W. Castlen, prosecuting attorney of St. Louis county, wherein five incorporated sewer districts of St. Louis county, respectively, and the supervisors of said sewer districts, respectively, and certain investment companies, and the collector of revenue of St. Louis county, are named as defendants.In the petitions in said injunction suits it is alleged, in substance, that the supervisors of said sewer districts entered into illegal contracts with certain investment companies concerning the operation, management, and control of said sewer districts, and with engineers and lawyers for professional services, and with others for general purposes, and issued illegal tax warrants in pursuance of said illegal contracts, and made illegal levies of taxes against lands situate in said sewer districts, and are using the funds derived from said illegal levies of taxes to pay said illegal tax warrants; and it is prayed that the supervisors of said sewer districts be required to make true accountings of all funds and obligations of said sewer districts, and of the purposes for which said funds are to be used; that the court declare said levies of taxes illegal and void, and decree that said levies of taxes do not impose liens upon lands situate in said sewer districts; that the supervisors of said sewer districts and the collector of revenue of St. Louis county be enjoined from taking any steps to enforce the payment of said taxes; that said collector be enjoined from turning over to the supervisors of said sewer districts or their representatives any funds received by him in payment of said taxes, and be required to hold all funds so received by him to the use of the payers of said taxes; that the supervisors of said sewer districts be enjoined from paying out any funds received by them from the collection of said taxes; that orders be issued forthwith requiring defendants to show cause why temporary restraining orders should not be issued as prayed; that temporary restraining orders be issued forthwith for the purpose of restraining defendants as prayed pending hearings on the orders to show cause; and that the court make such further orders as may seem meet and proper.

On January 15, 1932, the next day after said injunction suits were filed, the circuit court issued orders in said suits requiring defendants to show cause, on January 23, 1932, why temporary restraining orders as prayed should not be issued, and, without requiring indemnifying bonds, issued temporary restraining orders, restraining defendants as prayed pending hearings on the orders to show cause.One of said orders to show cause and the temporary restraining order issued in connection therewith read as follows:

"Relator's verified petition is presented and the defendants are ordered to show cause, if any they have, on the 23rd day of January, 1932, at the hour of 9:30 o'clock in the forenoon, why a temporary injunction should not issue as...