State v. Reynolds

• Decision Date: 10 June 1912
• Citation: 148 S.W. 623
• Parties: STATE ex rel. MISSOURI GLASS CO. v. REYNOLDS et al., Judges.
• Court: Missouri Supreme Court

148 S.W. 623

STATE ex rel. MISSOURI GLASS CO. v. REYNOLDS et al., Judges.

Supreme Court of Missouri.

June 10, 1912.

1. MANDAMUS (§ 7)—DISCRETION OF COURT.

Mandamus issues in the sound discretion of the court.

2. MANDAMUS (§ 143)—LACHES—EFFECT.

Where a cause was tried on appeal in the Springfield and St. Louis Courts of Appeals without raising any question of jurisdiction until after mandate issued from the St. Louis court of appeals, and judgment was entered in the circuit court in pursuance thereof, laches precluded an aggrieved party from compelling by mandamus the Court of Appeals to certify to the Supreme Court the cause for final determination, on the ground that a question within the jurisdiction of the Supreme Court was involved.

3. COURTS (§ 231)—SUPREME COURT—JURISDICTION — QUESTIONS IN CONTROVERSY — "REVENUE LAW."

The provisions in the St. Louis city charter for the assessment of benefits to land for public improvements are not "revenue laws of this state," so as to give appellate jurisdiction

to the Supreme Court, though the revenue officers of the city act under the charter for the state and the city.

In Banc. Mandamus by the state, on the relation of the Missouri Glass Company, against George D. Reynolds and others, Judges of the St. Louis Court of Appeals, to compel the St. Louis Court of Appeals to certify to the court for final determination a certain cause. Peremptory writ refused.

Joseph H. Zumbalen and Henry T. Ferriss, for relator. J. L. Hornsby, for respondents.

GRAVES, J.

This is an original proceeding of mandamus. Respondents, the judges of the St. Louis Court of Appeals, filed their return to our alternative writ, and relator then moved for judgment on the pleadings. By the suit relator seeks to compel the St. Louis Court of Appeals to certify to this court for final determination a certain cause of Theodosia Wallace Pleadwell et al., Plaintiffs, v. Missouri Glass Co., Defendant, 151 Mo. App. 51, 131 S. W. 941, on the ground that the determination of the cause involved a construction of the revenue laws of this state.

A brief history of the case as contained in the record and briefs before us is as follows: Plaintiffs in that cause are the successors in title by devise from Marie E. Patterson of certain real estate in the city of St. Louis. Defendant in that suit, the Missouri Glass Company, was a lessee of said property from the said Marie E. Patterson. The lease between Patterson and the Glass Company contained a clause by which the lessees therein named were to "pay all taxes, whether general or special, levied or assessed against said property or the improvements therein during said term." During the term of this lease the city of St. Louis undertook to and did assess benefits against this property in a proceeding to widen a street. A tax bill was issued, but it was not paid by the Missouri Glass Company, and the plaintiffs in the said circuit court proceeding paid the same, and then brought their said action against the Glass Company, on the covenant in the lease to recover from it the amount they paid with interest.

Upon a trial in the circuit court defendant was successful. Appeal was taken by plaintiffs to the St. Louis Court of Appeals, but by order of record that court transferred the cause to the Springfield Court of Appeals, where it was submitted and decided; the opinion resulting in a reversal of the circuit court judgment and a remanding of the cause. Pleadwell et al. v. Missouri Glass Co., 151 Mo. App. 51, 131 S. W. 941. After our decision in State ex rel. v. Nixon, 232 Mo. 496, 134 S. W. 538, the cause was returned by the Springfield Court of Appeals to the St. Louis Court of Appeals, which court reversed the judgment of the circuit court, and remanded the cause, with directions to the circuit court to enter judgment for the plaintiffs for the amount of the said tax bill and interest. This judgment was of date November 7, 1911. On February 5, 1912, the circuit court, in compliance with the mandate of the said Court of Appeals, entered judgment for plaintiffs and against defendant, the relator in the proceeding at bar, for $4,148.35. February 28, 1912, the defendant in that cause filed its motion in the Court of Appeals, asking that it recall its mandate to the circuit and transfer the cause to this court, because the revenue laws of the state were involved in the determination of the cause. On March 2, 1912, this motion was overruled, and on the same day the alternative writ was ordered issued by this court, and on the same day the Court of Appeals finally adjourned its then term of court. Other matters more in detail may be required in the course of the opinion, but this sufficiently states the case for the present.

The peremptory writ should be refused in this case for at least two reasons. In the first place, relator's extreme laches should preclude the issuance of the writ. In this court the writ of mandamus is looked upon as more or less a discretionary writ. Of course, a sound discretion must always be exercised. What we aim to say is that there are no fixed and hidebound rules which compel the issuance of such a writ, and even in cases where it could very properly be issued our courts have withheld it, because of conditions which did not appeal to sound discretion. State ex rel. v. Finley, 74 Mo. App. 213. Laches and delay in suing out the writ is recognized as a valid and substantial reason for its refusal. In State ex rel. v. Gibson, 187 Mo., loc. cit. 555, 86 S. W. 181, this court said: "The correct rule, deduced from the modern practice, seems to be that mandamus, while no longer a mere prerogative writ, is yet somewhat of a discretionary writ, and should be...