Opinion
February 1, 1943.
1. — Mandamus — Jurisdiction. Where city of St. Joseph in its corporate name only was made respondent in mandamus action to compel city to cancel two special tax bills as originally issued and to issue two new and corrected tax bills against such city in lieu thereof, the trial court did not have jurisdiction to compel the issuance of new tax bills because there was no one within jurisdiction of court as a party to the action whom the court could compel to do anything.
2. — Municipal Corporations — Taxes. The charter of the city of St. Joseph does not require such city to issue special tax bills against itself for costs of paving alongside abutting property owned or held by it for public purposes.
Appeal from Buchanan Circuit Court. — Hon. Emmett J. Crouse, Judge.
REVERSED.
Louis Kranitz and Conkling Sprague for respondent.
(1) On an appeal in a mandamus proceeding the discretion of the trial court in granting the writ will not be reversed where it appears to have been lawfully exercised and no abuse is shown. Sampson Distributing Co. v. Cherry, 346 Mo. 885, 891. Since mandamus is an action at law, a finding by the trial court, if supported by any substantial evidence, will not be disturbed. State ex rel. Haeusler v. Ins. Co., 169 Mo. App. 354, 363; State ex rel. Holmes v. Kernes, 180 Mo. App. 355, 358; State ex rel. Journal Printing Co. v. Dreyer, 183 Mo. App. 463, 479; State ex rel. Hyde v. Medical Society, 295 Mo. 144, 160. This action at law having been tried before the court, and no finding of fact having been requested and no declaration of law having been asked or given, the judgment, if it can be sustained on any theory, should be affirmed. Stoepler v. Silberberg, 220 Mo. 258, 269; Briggs v. Joint Stock Land Bank, 328 Mo. 23, 25; Railsbuck v. Bowers (Mo.), 257 S.W. 119, 121; Underwood v. Oregon County, 320 Mo. 514, 518; Mortgage Inv. Co. v. Robinson (Mo. App.), 153 S.W.2d 77, 78; Heath v. Perky Brothers Transfer Storage Co. (Mo. App.), 157 S.W.2d 600. (2) Mandamus lies to compel the issuance of new and corrected tax bills against the city. (a) In any case of street improvement alongside of a place held for public use other than a highway, it is the duty of the city to issue a special tax bill against itself for its proportionate share of the cost of the work, in default of the payment of which a money judgment may be recovered against the city. Sec. 6421, R.S. 1939; Barber Asphalt Paving Co. v. City of St. Joseph, 183 Mo. 451; Associated Holding Co. v. W.B. Kelley Co., 230 Mo. App. 267, 274. (b) Such duty devolving upon the city is a plain, imperative one, and the original tax bills having been issued against a party not liable for the cost of the improvement, relator is entitled to a writ of mandamus to compel the issuance of new and proper tax bills which can be enforced against the city. State ex rel. Paving Co. v. St. Louis, 183 Mo. 230; State ex rel. Meek v. Chillicothe, 237 Mo. 486; Likes v. City of Rolla, 190 Mo. App. 140. (c) The question of relator having an adequate remedy, other than by mandamus, was not raised in the trial court, and was therefore waived. State ex rel. Nee v. Tippin (Mo. App.), 268 S.W. 665, 666. That Secs. 7379-7384, R.S. 1939, have no application to the case at bar may be conceded. An ex-parte affidavit of counsel for the city to the effect that relator's counsel made a certain statement to the trial court, appended to and filed with the motion for new trial does not preserve such extraneous matter for review. Bright v. Sammons (Mo. App.), 214 S.W. 425, 426. (3) The mandamus proceeding was properly brought against the city. (a) Mandamus would lie against the city to compel it to issue proper tax bills against itself, even if the charter had imposed the ministerial duty of making them out on some officer or agency who was not made a party to the suit. State ex rel. Meek v. Chillicothe, 237 Mo. 486. (b) However, in this case, the statutory duty of issuing tax bills against the city itself, is wholly placed upon the municipality itself, and not upon any officer or agency thereof. Sec. 6421, R.S. 1939. The municipality is therefore the only necessary or proper respondent Sec. 6229, R.S. 1939, 38 C.J. 605, sec. 82, 910, sec. 657; 4 Dillon on Municipal Corporation (5 Ed.), secs. 1521, 1533; State ex rel. Goldman v. Workmen's Comp. Comm., 325 Mo. 153, 154; State ex rel. Hundley v. City of Alexandria, 164 La. 624, 114 So. 491, 492; City of Nacogdoches v. McBride (Tex.), 27 S.W.2d 866, 867; Middle State Utilities Co. v. City of Osceola, 231 Iowa 462, 1 N.W.2d 643. Moreover, the city is the real party in interest. State ex rel. Kansas City v. Trimble, 322 Mo. 360, 368; Adams v. Town of Weston (Ga.), 183 S.E. 69, 71. (4) The judgment of this court in the former suit between the parties is not res judicata and is no bar to this action. (a) The city concedes that in the two actions the same issue was involved. Page 22 of appellant's brief. The cause of action was the same in both actions, even though the ultimate remedy sought in each case was different. Chesnut v. Mertz (Mo. App.), 144 S.W.2d 194. If the present suit had been upon a different cause of action the former judgment would be no bar to its maintenance. 34 C.J. 874, sec. 1283. (b) But while the cause of action was the same in both suits, the plea of res judicata must fail because the judgment of reversal rendered by this court in the former action was not a final judgment upon the merits. Associated Holding Co. v. W.B. Kelley Co., 230 Mo. App. 267. To constitute a former judgment at bar it must have been on the merits. Dahlberg v. Fisse, 328 Mo. 213, 224; State ex rel. National Lead Co. v. Smith (Mo. App.), 134 S.W.2d 1061, 1068. When the former judgment was render because of a defective petition, it forms no bar to another action. 34 C.J. 794, sec. 1212; Wells v. Moore, 47 Mo. 229. A judgment of reversal which does not purport to pass upon the merits of the case does not operate as res judicata. 34 C.J. 899, sec. 1309; Wing v. Insurance Co., 167 Mo. App. 14. (5) This action is not barred by the five-year Statute of Limitations (Sec. 1014, R.S. 1939). (a) The general statutes of limitations have no application to mandamus proceedings. 38 C.J. 831, sec. 531. Mandamus is a special proceeding to which our General Code of Civil Procedure does not apply. State ex rel. Hentschel v. Cook (Mo. App.), 201 S.W. 361, 363, and cases therein cited. If the statutes of limitations might be applied to this mandamus proceeding by analogy, then the general ten-year Statute of Limitations (Sec. 1013, R.S. 1939), which governs actions for relief not otherwise provided for, should be applied. Stark v. Zehnder, 204 Mo. 451; Hoester v. Sammelmann, 101 Mo. 619. (b) But even if the five-year Statute of Limitations were applicable to this mandamus proceeding (which we deny), it would be no bar to its maintenance, because it was brought within one year after this court's reversal of relator's judgment in the former action between the parties, so was still within the limitation period claimed by the city be a bar. Sec. 1026, R.S. 1939 (4 Mo. R.S. Ann., sec. 231); Chesnut v. Mertz (Mo. App.), 144 S.W.2d 194. The word "reversed" as used in Sec. 1026, R.S. 1939, means "reversal wherein the merits of the cause have not been adjudicated." Strottman v. Railroad, 228 Mo. 186. (c) Moreover, since the city, by resistance to and prolonged litigation over the original tax bills, prevented the relator from sooner beginning this proceeding to enforce its right to proper tax bills, it should not be held that relator is barred by the city's failure to perform a duty over which relator had no control. Seested v. Dickey, 318 Mo. 192, 209; The Dollar Savings Bank v. Ridge, 183 Mo. 506, 522; Dickey v. Andover Inv. Co. (Mo. App.), 45 S.W.2d 1086, 1089. (6) The city holds Park 1 for public use. (a) Whether Park 1 be a "park" or a "parkway," it is a "place held for public use other than a street, avenue, alley or highway." Sec. 6421, R.S. 1939. (b) The statutory dedication vested the fee in the city. Secs. 12804 and 12809, R.S. 1939; Otterville v. Bente, 240 Mo. 291, 296; Laddonia v. Day, 265 Mo. 383, 392. The doctrine of dedication applies to land marked on the plat as parks as well as to those marked thereon as streets. 26 C.J.S. 59, sec. 8, 82, sec. 23 b. By accepting the plat the city accepted the whole tract as platted. Guitar v. St. Clair, 238 Mo. 617, 625; Heitz v. St. Louis, 110 Mo. 618, 625. The power granted to the board of public works to approve the plat was discretionary, not ministerial. Sec. 6560, R.S. 1939; Stapenhorst v. St. Louis, 287 Mo. 285, 297-8. The offer of dedication could have been rejected by the city. 26 C.J.S. 113, sec. 42. Cases involving the liability vel non of the city for injuries resulting from a failure to keep a street in repair are not in point. Bell v. Walkley (Mo. App.), 27 S.W.2d 456, 458. (e) The city's acts and conduct with respect to Park 1, including the refusal of its board of public works to consent to an abandonment thereof, estops the city from claiming that it does not hold Park 1 for public use. Page 147 of record. The city may hold a "park" in trust for public use even though the land had never been accepted by the board of park commissioners and by it incorporated into the system of public parks adopted by and under its control. Secs. 6430, 6431, 6469 and 6560, R.S. 1939. While section 6560 limits the general statutes applying to dedication, none of the charter provisions relating to the board of park commissioners limits or qualifies such statutes relative to dedication. Any other construction of the charter would read into it a provision not expressed nor necessarily implied by its terms. (d) Even if the trial court's finding that the city was vested with the fee simple absolute title to Park 1 in trust for public use was not as accurate as it might have been, it would make no difference in this case, because, if Park 1 is held for public use, it is immaterial whether such holding be of the nominal fee or a simple easement. Caruthersville v. Huffman, 262 Mo. 375. Moreover, there having been no request for any finding of fact in this case, the trial court's finding was in the nature of a voluntary statement, and presents no question for review, other than as a general finding. Conley v. Crown Coach Co. (Mo.), 159 S.W.2d 281, 285. The facts being undisputed and the judgment being for the right party and the right one under the law and the evidence, this court is not concerned with the findings of fact, and will affirm the case, even though there may have been some findings of fact given by the trial court not justified by the evidence. Globe Indemnity Co. v. McDowell (Mo. App.), 159 S.W.2d 822, 829; Ragsdale v. Brotherhood of R. Trainmen (Mo. App.), 157 S.W.2d 785, 789; In re Kellam v. Misner, 227 Mo. App. 291, 297. (7) There was no reversible error in the admission of evidence. The assignments of error with respect thereto are too general to impel consideration of this court. Span v. Jackson-Walker Coal Mining Co., 322 Mo. 158, 181; Kleine v. Kleine (Mo. App.), 111 S.W.2d 242, 244. Since there was competent substantial evidence in the record to support the trial court's finding and judgment, this court must assume that the trial court disregarded all incompetent evidence and reached its decision in view of competent evidence, so that the errors, if any (which we deny), are not reversible errors. Security State Bank v. Dent Co., 345 Mo. 1050, 1059. (8) The judgment was a proper one. (a) Neither the objection to the form of the judgment, nor the complaint as to the allowance of interest, was brought to the trial court's attention in the city's motion for new trial, so the matters are not properly reviewable here. Flint v. Sebastian, 317 Mo. 1344, 1365; Clothing Co. v. Steideman, 169 Mo. App. 306, 329. (b) Moreover, the original tax bills were offered and received in evidence and the passage of Special Ordinance 11052, and its validity, was admitted in the city's return. The judgment is not erroneous because it provides for interest in accordance with the statutes and the original tax bills themselves. Barber Asphalt Paving Co. v. St. Joseph, 183 Mo. 451, 460.
Homer C. King and Bart M. Lockwood for appellant.
(1) In a mandamus case to compel the issuance of tax bills, the city is not a necessary or proper party. State ex rel. Hawes v. Mason, 153 Mo. 23, 54 S.W. 524; State ex rel. Pickering v. Willow Springs, 208 Mo. App. 1, 230 S.W. 352. (2) A writ of mandamus should run to the person or official board whose duty it is to perform the act required. State ex rel. Compton v. Walter, 23 S.W.2d 167; State ex rel. Kent v. Olenhouse, 23 S.W.2d 83; State ex rel. Pickering v. Willow Springs, 208 Mo. App. 1, 230 S.W. 352; State ex rel. Dolman v. Dickey et al., 280 Mo. 536, 219 S.W. 363; State ex rel. Hawes v. Mason, supra. (3) In cities of the first class such as the city of St. Joseph, the board of public works shall provide for the issuance of all special tax bills against the property properly chargeable therewith. City Charter, R.S. Mo. 1939, sec. 6555; State ex rel. Dolman v. Dickey et al., 280 Mo. 536, 219 S.W. 363. (4) City engineer to make out special tax bills. City Charter, R.S. Mo. 1939, sec. 6415. (5) The decision of the Kansas City Court of Appeals in the former case 90 S.W.2d 419 is res judicata of the issues in this case. The doctrine of res judicata is applicable to an appellate court as well as to a trial court. State ex rel. v. Hughes, 148 S.W.2d 576; State v. Bliss et al., 99 S.W.2d 71. (6) It is a familiar rule of law that a judgment on the merits concludes the parties not only as to the things determined but as to matters which might have been litigated. State v. Bliss et al., 99 S.W.2d 71; State ex rel. v. Hughes, 148 S.W.2d 576; Healy v. Moore, 100 S.W.2d 601. (7) Where the judgment is reversed, the judgment of the lower court is nullified and when a final judgment of the appellate court is res judicata, it is not subject to collateral attack by party in mandamus proceedings. State ex rel. McGrew v. Ragland et al., 97 S.W.2d 113. (8) The appellate court's reversal of a case does not mean the plaintiff was non-suited. State ex rel. v. Hughes, supra. (9) Plaintiff's action is barred by the statutes of limitation. The five-year Statute of Limitations is not only a bar to the relief prayed for, but is a bar to bringing in the proper parties whose duty it would be to do the required acts. State ex rel. Moberly v. Hassett, 127 Mo. App. 11, 106 S.W. 115; St. Louis v. Marvin Planing Mill Co., 228 Mo. App. 1048, 58 S.W.2d 769; Dickey v. Seested, 223 S.W. 57, 63; Seested v. Dickey, 318 Mo. 209, 300 S.W. 1008; Likes v. City of Rolla, 190 Mo. App. 140. (10) The city of St. Joseph cannot acquire parks or parkways by dedication, purchase or condemnation without the approval of its board of park commissioners. R.S. Mo. 1939, secs. 6433-34-35, 6464; Pash v. St. Joseph, 257 Mo. 332, 341, 165 S.W. 710; Kansas City v. Bacon, 147 Mo. 259, 48 S.W. 860, 866; Kansas City v. Martin, 169 Mo. 80, 91, 68 S.W. 1037; Kansas City v. Ward, 134 Mo. 172, 186, 35 S.W. 600; State ex rel. K.C. v. Field, 99 Mo. 352, 357, 12 S.W. 802. (11) Dedication of a park without acceptance by the proper authority conveys no title to the city. Oklahoma City v. Williamson, 90 P.2d 1064, and cases cited. (12) The board of park commissioners not having accepted any of the parks in the plot of dedication, the deed of the city re-conveying Park 3 to the Fairleigh Realty Company was void. Gaskins v. Williams, 235 Mo. 563, 139 S.W. 117. (13) The city never acquired the fee simple title to any parks or parkways in Fairleigh Place. Neil v. Ind. Realty Co., 317 Mo. 1235, 298 S.W. 363; Evans v. Andres, 42 S.W.2d 32, 34; Kansas City v. Jones Store Co., 28 S.W.2d 1008, 1015. (14) The act of the board of public works and of the city council in approving the plat of Fairleigh Place was a ministerial act they could have been compelled by mandamus to perform and no title was conveyed thereby. Better Built H. M. Co. v. Nolte, 249 S.W. 743, 745, and cases cited; Downend v. Kansas City, 156 Mo. 60, 67, 70; Conner v. Nevada, 188 Mo. 148, 159; Hedrick v. St. Joseph, 138 Mo. 396-400; Neil v. Ind. Realty Co., 298 S.W. 363-370. (15) Failure of the city to tax the parkway or park described constitutes no proof of title and the city is not estopped to deny title. Hecker v. Bleish, 3 S.W.2d 1008-1018. (16) Secs. 7379 to 7384, R.S. Mo. 1939, formerly known as Secs. 1 to 7 of Session Acts of 1917, at pages 391 to 393, have no application to the case at bar and afford no grounds for the relief to plaintiff in this case. Gast Realty Inv. Co. v. Schneider, 296 Mo. 687, 246 S.W. 177. (17) Secs. 7331 to 7335, R.S. Mo. 1939, provides a method of procedure against all cities for the collection from cities of just accounts due under invalid tax bills but section 7335 provides that mandamus cannot be maintained until the claim has been presented to the board of public works and that body has failed or refused to act in the matter. Heman v. Flad et al., 108 Mo. 614, 18 S.W. 1128. (18) The judgment in this case is void for providing the addition of interest to the face of the original bills (thirteen years at eight per cent) contrary to the provisions of the statutes which provide they shall not exceed the face of the old tax bills. R.S. Mo. 1939, secs. 7332, 7382. (19) Tax bills cannot be issued against a parkway. Bridges Asphalt Co. v. Jacobsmeyer, 142 405 S.W.2d 641, and cases cited therein. (20) Plaintiff brings mandamus against the city asking and obtaining a decree compelling the city to cause its proper officers to issue two new tax bills in lieu of two tax bills issued April 22, 1929, as authorized by Special Ordinance No. 11052, passed and approved January 21, 1929. As the Special Ordinance No. 11052 and the two original tax bills issued thereinunder were not put in evidence, the evidence is insufficient to support the judgment.
This is a mandamus suit brought at the relation of Associated Holding Company, against the City of St. Joseph. Relator is the owner of two special tax bills issued for the cost of paving a portion of a street in St. Joseph upon which abuts a tract of land known as Park 1, Fairleigh Place, an addition to the city. Relator contends that said tax bills were erroneously issued in the name of Fairleigh Realty Company, a corporation, as owner, whereas the city of St. Joseph is, and was at the time the bills were issued, the owner of said real estate, and that said bills should have been so issued. Relator, in this action, seeks a writ directing respondent to cancel said tax bills as originally issued and to issue two new and corrected tax bills in lieu thereof. Judgment was for relator and respondent appeals.
Many defenses are urged by respondent, among which is that the trial court did not have jurisdiction to compel the issuance of new tax bills because there was no one within the jurisdiction of the court, as a party to this cause of action, whom the court could compel to do anything. We think this contention must be sustained.
In State ex rel. Pickering v. City of Willow Springs, 208 Mo. App. 1, the action was in mandamus wherein the "City of Willow Springs" was the only respondent, and relator sought to compel respondent to abate a nuisance. Relator had a judgment granting the relief prayed. The Springfield Court of Appeals said, l.c. 4:
". . . It is held in Sallee v. St. Louis, 152 Mo. 615, 54 S.W. 463, that it is the absolute duty of a city to abate such a nuisance. But if the officers of a city fail to do their duty, can they be compelled to do so in a suit not against them, but against the city? . . . Here the city only is named as defendant. The judgment of peremptory mandamus directs that the nuisance be abated, and that `the city of Willow Springs shall immediately take steps to abate the same.' The city of course can act only through its officers or agents, and we do not know how a judgment like the one rendered could be enforced."
The judgment was reversed.
The decision in that case is in harmony with the majority of the authorities on the subject. In 38 C.J., page 848, par. 554, it is said: "The person or body whose duty it is to perform the act sought to be enforced by mandamus is a necessary party respondent." The above decision is cited as authority for that declaration of law. In State ex rel. Kent v. Olenhouse (Mo.), 23 S.W.2d 83, it was held that the writ must go to all members of a township board whose acts were sought to be coerced and that a failure to make all of such members parties to the action called for dismissal of the writ. In State ex rel v. Walter, 23 S.W.2d 167, it was held, l.c. 170, that the writ should run to the person whose duty it is to perform the act required.
In Bell v. County Court of Pike County, 61 Mo. App. 173, 176, an action in mandamus, it was held that the members of a county court must be named, in their official capacities, and that it was insufficient to make "the county court" respondent. In State ex rel. v. Wurdeman, 183 Mo. App. 28, l.c. 43, it was held that the proper practice is to direct the writ against the officials, by name, whose acts are sought to be coerced.
In High's Extraordinary Legal Remedies, pages 350, 351, it is said that while the early English rule permitted that the writ should be directed to a municipality itself, in the United States it must be directed to that particular branch of municipal government whose duty it is to perform the act; and if the duty sought to be ordered done rests on a municipal body, such as the mayor and common council, the writ should be directed to each and all of them in their corporate capacity.
In McQuillin on Municipal Corporations, Revised Vol. 6, par. 2735, page 912, the following appears:
"HOW WRIT DIRECTED AGAINST MUNICIPAL CORPORATION. The ancient rule in mandamus proceedings was to direct the writ to the municipal government by its corporate name, while the modern practice is to direct it to the several members of the municipal government charged with the duty to be performed.
"The advantage in pursuing the latter course is shown in this; that while the duty can be as clearly commanded in the one form as in the other, yet when it becomes necessary to compel obedience by attachment, such writ cannot be enforced against the corporation in its corporate name. The names of the persons composing the governing body of the municipality must be brought before the court that they, in their official capacity may, by the mandate of the court be compelled to perform the required function.47"
Among other authorities found cited in footnotes under designation "47" is that of Bell v. County Court, supra.
Plaintiff cites as authority in support of its position the case of State ex rel. Meek v. City of Chillicothe, 237 Mo. 486, 141 S.W. 602. There relator sought the cancellation of paving tax bills theretofore issued and the issuance of new and corrected bills in lieu thereof. The writ was granted by the trial court and that judgment was affirmed by the Supreme Court. An examination of the language of the opinion discloses the following, l.c. 494:
"Respondent concedes that if a correct construction of the law requires the apportionment of the cost as contended for by relator, and as decided by the Court of Appeals, then relator is entitled to relief and the peremptory writ of mandamus should go."
Therefore, the propriety of naming the city itself respondent, instead of its officers, was not involved in the case.
However, this case is also reported in 141 S.W. 602, under the title "State ex rel. Meek v. City of Chillicothe et al." Because of this discrepancy we voluntarily investigated the original file and opinion in this cause in the files of the Supreme Court, docket 15807, and find that relator, in his petition therein, sought relief by writ of mandamus against John H. Taylor, Mayor of Chillicothe, Wm. Scruby, councilman at large, and Wm. Eylenburg, Moses Litton, Hiram Hoffman and Albert Holt, members of the council of the city of Chillicothe. The action was, therefore, directed against the mayor and council in their official capacity, as respondents; and relief was granted as prayed. The writ was neither sought nor granted against the corporation. The title under which the case was tried did not in fact embrace all of the parties in the action.
Relator contends that where the act sought to be coerced by the writ is one which the municipality itself is required to do, the writ may run to the municipality instead of to its officers. Without deciding whether or not that question is answered by the authorities above cited, and discussed, it is sufficient to say that nowhere do we find, in the charter of the City of St. Joseph, that the city shall issue special tax bills against itself for costs of paving alongside of abutting property owned or held by it for public purposes. Relator contends that section 6421, Revised Statutes Missouri, 1939, so provides. That section contains the following provision: ". . . the city shall, out of the general revenue of the city, pay its proper proportionate share of the cost of the work mentioned herein, a tax bill against the city to be issued on which the city may be sued in default of payment . . ."
We have previously held that the city cannot be sued for a money judgment for the cost of this paving absent a special tax bill to form the basis of such suit. [Associated Holding Company v. Kelley et al., 230 Mo. App. 267, 90 S.W.2d 419.]
Section 6543, Revised Statutes Missouri, 1939, creates a board of public works in all cities of the first class, such as respondent, and vests in said board far reaching powers touching the management and control of the streets in said cities. Section 6551 gives said board of public works control over the matter of paving streets. Section 6553 gives such board the power to make and award contracts for paving. Section 6555 states that the board "shall provide for the issuance of all special tax bills against the property properly chargeable therewith, which said tax bills shall be authenticated and certified to by the city engineer." (Italics ours.) This provision refers to the property abutting on streets for which provision for paving is made in preceding paragraphs, including property owned or controlled by the city. In the absence of any specific statutory provision conflicting therewith it is difficult to say, with any reason or logic, that the city itself is commanded to issue special tax bills against itself.
The rule declared by the Supreme Court in State ex rel. Goldman v. Missouri Workmen's Compensation Commission, 325 Mo. 153, where it was held that the commission might be made respondent in a mandamus action, has no application here. The court there held that the statute provided that "The Commission as such — and not its individual members — is authorized to authenticate and certify copies of its records and documents on file in its office." In the case at bar there is no statute providing that the "City of St. Joseph" shall issue a special tax bill against itself.
There are decisions by the courts of other States which seem to hold that a city, in its corporate name only, may be made respondent in a mandamus action: State ex rel. Hundley v. City of Alexandria, 164 La. 624, 114 So. 491; City of Nacogdoches v. McBride (Tex.), 27 S.W.2d 866; Middle States Utilities Company v. City of Osceola, 231 Iowa 462, 1 N.W.2d 643; Adams v. Town of Weston (Ga.), 183 S.E. 69. In some such cases it is held that the act commanded to be done was one which the corporation itself was required to do; but in no event can they be followed in the case at bar because to do so would result in this opinion being in conflict with similar adjudicated Missouri cases herein cited and discussed.
It follows that the judgment should be reversed. Boyer, C., not sitting.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is reversed. All concur.
ON MOTION FOR REHEARING.
Respondent, in its motion for rehearing, cites two decisions not previously called to our attention.
The first such decision is State ex rel. Poole v. City of Willow Springs, 183 S.W. 589. That decision deals with an action in mandamus to compel the levy, collection, application, etc., of taxes to pay a judgment theretofore obtained by relator against defendant. It is not a case dealing with issuance of a paving tax bill where a statute places such duty on a specific board or commission and not on the city as a corporation. Furthermore, relator prayed that the trial court issue its writ of mandamus therein directing the "board of alderman, etc." (l.c. 590) to perform certain acts therein named. Our opinion herein is not in conflict with that decision.
The other decision cited is that of Hartman v. City of Brunswick, 98 Mo. App. 674. The opinion was prepared by ELLISON, J., of this court. The original files discloses that the alternative writ of mandamus issued therein was directed "to Ed J. Tschann, as mayor of the city of Brunswick, Chariton County, Missouri, and to Samuel E. Everly, Lloyd H. Herring, Benjamin M. Strub, Dr. Edward Bragg, William Kinkorst, and John Knappenberger as councilmen and members of the board of alderman of said city of Brunswick, and to Walter Owen as collector of said city of Brunswick and to J.M. Barker as treasurer of said city of Brunswick: Greeting:" The decision in the instant case is not in disharmony with that rendered by us in the case above mentioned. The situation there is similar to that discussed on page 3 of our main opinion herein, to-wit: State ex rel. Meek v. City of Chillicothe, 273 Mo. 486, 141 S.W. 602. Boyer, C., concurs.
The foregoing opinion on motion for rehearing of SPERRY, C., is adopted as the opinion of the court. The motion for rehearing is overruled. All concur.