The State ex rel. Smith v. The Mayor

• Decision Date: 30 March 1907
• Parties: THE STATE ex rel. HENRY B. SMITH, Appellant, v. THE MAYOR and BOARD OF ALDERMEN of the City of Neosho, Namely: PRETTYMAN, Mayor, and PICKENS et al., Aldermen, Appellants
• Court: Missouri Supreme Court

101 S.W. 99

203 Mo. 40

THE STATE ex rel. HENRY B. SMITH, Appellant, v. THE MAYOR and BOARD OF ALDERMEN of the City of Neosho, Namely: PRETTYMAN, Mayor, and PICKENS et al., Aldermen, Appellants

Supreme Court of Missouri

March 30, 1907

Appeal from Newton Circuit Court. -- Hon. Henry C. Pepper, Judge.

Reversed and remanded (with directions).

Horace Ruark and John T. Sturgis for defendants-appellants.

(1) "Mandamus is strictly a legal remedy with which equity has nothing to do." 2 Spelling, Extraordinary Relief sec. 1363; 19 Am. and Eng. Ency. Law (2 Ed.), 718, 731; State ex rel. v. Lewis, 76 Mo. 380. (2) In the contract in question the agreement to make payment of the semiannual installments is unconditional and the date of payment and the amount to be paid are fixed with certainty -- thus constituting a debt for the entire amount within the meaning of article 10, section 12, of the Constitution. The debt is absolute -- there is no condition precedent, no service to be performed or supplies furnished. Saleno v City of Neosho, 127 Mo. 627; City of Ottumwa v Water Company, 119 F. 315; City of Laporte v Gamewell Fire Alarm Co., 146 Ind. 466; Earles v. Wells, 94 Wis. 285; Valparaiso v. Gardner, 97 Ind. 1; Brown v. City of Corry, 175 Pa. St. 528; Brown v. City of Boston, 179 Mass. 321; Windsor v. City of Des Moines, 110 Iowa 175; Walla Walla v. Water Co., 172 U.S. 1; Reynolds v. City of Waterville, 92 Me. 292; Culberson v. Fulton, 127 Ill. 30; Scott v. Davenport, 34 Iowa 208; Hall v. Cedar Rapids, 115 Iowa 199; City of Helena v. Mills, 94 F. 919; Doon Twp. v. Cummins, 142 U.S. 366; Spellman v. Parkersburg (W. Va.), 14 S.E. 279. It makes no difference that the debt sued for is the result of a compromise of a claim in favor of the Water Company on a liability which might accrue against the city. Austin v. McCall (Tex.), 68 S.W. 791. And being in excess of the limitation provided by the Constitution, the entire indebtedness is void and cannot be enforced in any form of action at law or equity. Prickett v. Marcelaine, 65 F. 469; Thornburg v. School District, 175 Mo. 12; Buchanan v. Litchfield, 102 U.S. 278; City of Litchfield v. Ballou, 114 U.S. 192; Gamewell Fire Alarm Co. v. Laporte, 96 F. 664, 102 F. 417; Lake County v. Rollings, 130 U.S. 662. (3) The judgment in case of Matters et al. v. City of Neosho is not res judicata upon the issues herein. Relator was not a party to that proceeding nor bound thereby. Neither are the issues in this case the same as in the Matters case. (a) In order for a judgment to be binding in favor of any person it must also be binding against him. The judgment or decree must conclude both parties or it will conclude neither. The estoppel must be mutual. No person can avail himself of a judgment as res judicata in his favor who has not shared the trouble or expense of a trial nor exposed himself to the hazard of an adverse decision. 1 Greenleaf on Ev. (16 Ed.), secs. 523 and 524; 24 Am. and Eng. Ency. Law (2 Ed.), 730; 1 Freeman on Judgments (4 Ed.), sec. 159; 1 Van Fleet's Former Adjudication, p. 111; State ex rel. v. St. Louis, 145 Mo. 565; Lyons v. Cooledge, 89 Ill. 529; Woods v. Henry, 77 Mo. 277; St. Louis Ins. Co. v. Cravens, 69 Mo. 77; State ex rel. v. Barker, 26 Mo.App. 494; Mail v. Maxwell, 107 Ill. 554; Allred v. Smith, 135 N.C. 443; Peebles v. Pate, 90 N.C. 348; Starkie on Evidence, 332; Coke on Littleton, 252. The owner of municipal bonds or other obligations to pay is not bound by a judgment in a suit by taxpayers against the municipality or its officers to which such owner is not a party. Town of Pana v. Bowler, 107 U.S. 529; Morrill v. Smith County (Tex.), 33 S.W. 899; 2 Van Fleet, Former Adj., sec. 570; Town of Lyons v. Cooledge, 89 Ill. 529; Mail v. Maxwell, 107 Ill. 554; Carroll County v. Smith, 111 U.S. 556; Warren County v. Marcy, 97 U.S. 96; Town of Enfield v. Jordan, 119 U.S. 680. (b) And the parties must also have occupied adversary positions during the trial upon issues formed between them by the pleadings. 24 Am. and Eng. Ency. Law (2 Ed.), 731; 1 Freeman on Judgments (4 Ed.), sec. 158; 1 Van Fleet's Former Adj., sec. 256; State Bank v. Bartle, 114 Mo. 281; Carmody v. Herrick, 85 Mo.App. 659; McMahan v. Geiger, 73 Mo. 145. (c) Relator was not only not a party in the Matters case but would not have been a proper party to that proceeding and could not have been joined as a relator and adversary party to the city. State ex rel. v. Fraker, 166 Mo. 142; State ex rel. v. Burkhardt, 59 Mo. 75. The issues involved in the Matters case did not concern the public as a whole, but only the taxpayers of the city by and for whom the suit was prosecuted (relator Smith is shown to have been neither a taxpayer nor a resident of the city). Where a suit is brought by a few on behalf of a class the decree binds the entire class having a common interest, but does not bind those not belonging to the class and not having a common interest with those prosecuting it, so that the Matters judgment was not binding on relator Smith. 24 Am. and Eng. Ency. Law (2 Ed.), 758. (d) The proceedings in the Matters case were not in rem. At the time of the institution of that action there was no res in existence to seize. At most it was a proceeding to create a fund. There was no seizure into the custody of the court and there was no published notice to all the world. These are the distinguishing features of a proceeding in rem. Waples on Proceedings in rem, secs. 2, 41-42 and 43; Herman on Estoppel and Res Adjudicata, 304; Town of Pana v. Bowler, 107 U.S. 529. In order for a proceeding in rem or quasi in rem to be binding upon all the world as res judicata, notice of the proceeding must be published to the world and an opportunity afforded anyone to appear and defend. Such proceedings only bind the world when all the world is made a party by published notice. Waples on Proceedings in rem, secs. 64, 625-628; Herman on Estoppel and Res Adjudicata, sec. 219; Cooley's Constitutional Limitations (7 Ed.), p. 580; Troyer v. Wood, 96 Mo. 480; Hunt v. Searcy, 167 Mo. 158; Jones v. Yore, 142 Mo. 38; State ex rel. v. Hadlock, 52 Mo.App. 297; Woodruff v. Taylor, 20 Vt. 65; Scott v. McNeal, 154 U.S. 34; State v. Burton, 47 Kan. 44. (e) This suit is not for the same cause of action as the Matters case. No claim was made in the Matters case by pleadings, or otherwise, that the contract was void because a debt was created in excess of the constitutional limitation. Garland v. Smith, 164 Mo. 22. (f) The fact that the State is a nominal party both in the Matters case and the present suit is without force. The alternative writ in mandamus, which under our law is the first pleading, must, like all writs, run in the name of the State. The use of the name of the State or sovereign is merely nominal and the suit is "regarded as in the nature of an action by the person in whose favor the writ is granted." State v. Burton, 47 Kan. 44; State ex rel. v. Lewis, 76 Mo. 380; State v. Stock, 38 Kan. 154; Kimberly v. Morris, 87 Tex. 637; 2 Spelling, Extraordinary Relief, secs. 1364, 1623; 13 Ency. Pl. and Pr., 669 and 670. Proceedings for a writ of mandamus are civil proceedings, the State being merely a nominal party. 2 Ind. (2 Cart.) 423. And in many jurisdictions the state is not even a nominal party. Rider v. Brown (Okla.), 32 P. 341; Heinz v. Moulton, 7 S.D. 272; State v. Bates (S. C.), 24 S.E. 755; Malain v. Judge Third Dist., 29 La. Ann. 793; Kimberly v. Morris, 87 Tex. 637. (4) The doctrine of estoppel cannot be applied to validate a contract which the corporation had no power to make. Thornburg v. School Dist., 175 Mo. 12; Wheeler v. Poplar Bluff, 149 Mo. 46; State ex rel. v. Murphy, 134 Mo. 567; City of Unionville v. Martin, 95 Mo.App. 38; Book v. Earl, 87 Mo. 246; Walcott v. Lawrence Co., 26 Mo. 272; City of Litchfield v. Ballou, 114 U.S. 192; Bigelow on Estoppel, 466; 20 Am. and Eng. Ency. Law (2 Ed.), 1182; Buchanan v. Litchfield, 102 U.S. 278; State ex rel. v. Helena, 24 Mont. 521; French v. Burlington, 42 Iowa 617; Laporte v. Gamewell Fire Alarm Tel. Co., 146 Ind. 466; Gamewell Fire Alarm Co. v. Laporte, 96 F. 664, 102 F. 417. (5) No recovery can be had in this case based on any claim arising under ordinance No. 113. That ordinance was repealed by ordinance No. 232, to which plaintiff's assignor gave its assent. By ordinance No. 232 an entirely new contract was substituted for No. 113. (a) Relator having brought suit upon ordinance No. 252 cannot recover under the provisions of ordinance No. 113 and the judgment rendered thereon. He cannot sue upon one cause of action and recover upon another. Stix v. Matthews, 75 Mo. 96; Hollman v. Lange, 143 Mo. 100; Cole v. Armour, 154 Mo. 333. (b) The obligation to pay under ordinance No. 113 is a general one and no special fund provided. Before resort can be had to mandamus, a party must first establish the validity of his claim in an action at law. Mansfield v. Fuller, 50 Mo. 338; Cloud v. Pierce City, 86 Mo. 357; Payne v. School Dist., 87 Mo.App. 415. (c) The deed from Neosho City Water Company to the city carried with it all rents subsequently accruing and ipso facto ended the obligation of the city to pay water rentals. Culverhouse v. Whorts, 32 Mo.App. 419; Vaughn v. Locke, 27 Mo. 290; Latta v. Weiss, 131 Mo. 230; Page v. Culver, 55 Mo.App. 606.

Thurman, Wray & Timmonds and George Hubbert for plaintiff-appellant.

(1) The money having arisen out of the compromise contract, from the use of the property turned over by the company to the city in which a beneficial interest was clearly reserved by the company; and the money being so made available, and under the immediate control of the city, for application as the installments matured, by the simple act of drawing an appropriate warrant -- there was no...