Supreme Court of Missouri, 1948

State Ex Rel. Kansas City v. Harris

Supreme Court of Missouri · Decided June 14, 1948 · Hyde, Tipton

212 S.W.2d 733; 357 Mo. 1166; 1948 Mo. LEXIS 728 (South Western Reporter, Second Series)

Counsel

David M. Proctor, City Counselor, John J. Cosgrove and E.R. Seaver, Assistant City Counselors, for relator. (1) The injunction suit is barred, and therefore respondent does not have jurisdiction over the subject matter thereof, because the Supreme Court has heretofore taken jurisdiction over the Annexation Case, which is still pending and which involves all the issues of and the parties to the injunction suit. O'Malley v. Lamb, 342 Mo. 171 , 113 S.W.2d 810 ; Weisheyer v. Weisheyer, 14 S.W.2d 486; 1 C.J.S., "Abatement and Revival," sec. 17, p. 50; Art V, Sec. 4, Constitution of Missouri, 1945. (2) Plaintiffs' intervening in the Annexation Case, and asking that Kansas City be denied the right to annex the disputed area, bars a later suit by plaintiffs wherein they raise the same issues and ask that Kansas City be enjoined from issuing municipal bonds, for the reason that the former constitutes a binding election on the part of plaintiffs between two inconsistent remedies. State ex rel. Kimbrell v. Peoples Ice, Storage Fuel Co., 246 Mo. 168 , 151 S.W. 101; Mac Murray-Judge Architectural Iron Co. v. St. Louis, 138 Mo. 608 , 39 S.W. 467; Walker v. Charlot, 197 Mo. App. 536 , 196 S.W. 1085; 28 C.J.S., "Election of Remedies," sec. 29, p. 1101. James P. Aylward, George V. Aylward, Terence M. O'Brien and William B. Teasdale for amici curiae. (1) The relief sought in the bond suit — a judgment that the bond election is invalid and an injunction against Kansas City's issuance of the bonds — cannot possibly be granted in the statutory quo warranto proceeding. Where the entire relief sought in the second case cannot be granted in the first, the second will not be stayed or abated. Nolker v. Nolker, 257 S.W. 798; Pocoke v. Peterson, 256 Mo. 501 , 165 S.W. 1017; State v. Dougherty, 45 Mo. 294 ; Moore v. John J. Dowling Realty Co., 166 S.W.2d 238. (2) In a quo warranto proceeding, the court's judgment cannot go beyond that provided in Sec. 1786, R.S. 1939. The following authorities so hold. State ex inf. Pope v. Mansfield Special Road Dist., 299 Mo. 663 , 253 S.W. 714 ; State ex rel. Ewing v. Francis, 88 Mo. 557 ; State ex rel. Ponath v. Hamilton, 240 S.W. 445; State ex rel. Attorney General v. Hyde, 2 S.W.2d 212. (3) The writ of quo warranto is not a substitute for injunction. State ex inf. McKittrick v. Murphy, 347 Mo. 484 , 148 S.W.2d 527 . (4) Furthermore, relief from municipal taxation cannot be granted in a quo warranto proceeding against the city. State ex inf. Bates, Prosecuting Attorney ex rel. Center Creek Mining Co. v. Carterville, 183 S.W. 1093. (5) The two causes of action are not the same. The two cases are aimed at completely different things. The quo warranto proceeding attacks North Kansas City's municipal jurisdiction over its alleged annexation area; the bond suit attacks Kansas City's bond election. (6) In quo warranto, as in other civil proceedings, the cause of action should exist and be complete when the proceedings are commenced. State of Nebraska ex rel. Attorney General v. Consumers Public Power Dist., 143 Neb. 753 , 10 N.W.2d 784, 152 A.L.R. 480. (7) The issues are different. The issue in the quo warranto proceeding is: Shall North Kansas City be ousted from municipal jurisdiction over its alleged annexation area? This is the only issue legally possible in that proceeding. Sec. 1786, R.S. 1939; State ex inf. Pope v. Mansfield Special Road Dist., 299 Mo. 663 , 253 S.W. 714 ; State ex rel. Ewing v. Francis, 88 Mo. 557 ; State ex rel. Ponath v. Hamilton, 240 S.W. 445; State ex rel. Attorney General v. Hyde, 2 S.W.2d 212. (8) Furthermore, the quo warranto intervenors could not enlarge or change the issues in that proceeding. Vinson v. Washington Gas Light Co., 321 U.S. 489 , 64 S.Ct. 731, 88 L.Ed. 883; Columbia Gas Electric Corp. v. American Fuel Power Co., 322 U.S. 379 , 64 S.Ct. 1068, 88 L.Ed. 1337; Chandler Price Co. v. Brandtjen Kluge, Inc., 296 U.S. 53 , 56 S.Ct. 6, 80 L.Ed. 39. (9) Even if North Kansas City is ousted, this court in the quo warranto proceeding cannot confer municipal jurisdiction over the disputed area upon Kansas City. A quo warranto judgment may oust one party, but it cannot confer the disputed jurisdiction on another. State ex rel. Ewing v. Francis, 88 Mo. 557 ; State ex rel. Ponath v. Hamilton, 240 S.W. 445. (10) The same parties are not involved. The claim made by the intervenors in the quo warranto proceeding is that Kansas City's annexation is invalid, and the claim made by the plaintiffs below is that Kansas City's bond election is invalid. As these parties are not asserting identical claims, they cannot be said to be members of the same class. Persons are members of the same class only when their legal position and interests are identical. Hansberry v. Lee, 311 U.S. 32 , 61 S.Ct. 115, 85 L.Ed. 22, 132 A.L.R. 741. (11) The two actions were not commenced by the same plaintiff. The defense of a prior suit pending applies only when the plaintiff in both suits is the same, and both are commenced by himself, and not to cross-suits by the plaintiff in one who is the defendant in the other. State ex rel. Aetna Life Ins. Co. v. Knehans, 31 S.W.2d 226; Long v. Lackawanna Coal Iron Co., 233 Mo. 713 , 136 S.W. 673; Pocoke v. Peterson, 256 Mo. 501 , 165 S.W. 1017; Rodney v. Gibbs, 184 Mo. 1 , 82 S.W. 187; Northcutt v. McKibben, 236 Mo. App. 605 , 159 S.W.2d 699 . (12) Even if it be assumed that in each of the two actions the plaintiffs, the parties, the causes of action, the issues, and the objects are the same, proper procedure would be to stay the bond case, not to dismiss it or to prohibit its prosecution. This principle is well settled. Sharkey v. Kiernan, 97 Mo. 102 , 10 S.W. 886; Brown v. Simpson, 201 S.W. 898; Aetna Ins. Co. v. Carondelet,. (19) Relator's election of remedies proposition is without merit because the alleged election is incomplete in that the quo warranto proceeding has not yet been determined. An election of remedies is not complete until one of the remedies has been embodied in a judgment. Tracy v. Aldrich, 236 S.W. 347.

Opinion of the Court

*1169 HYDE, J.

[734] Kansas City seeks to prohibit respondent Judge 'from proceeding in an' injunction suit which sought to declare invalid its-municipal bond election of November 4, 1947 and to enjoin the City from issuing; or selling any of the bonds.

The-City contends'that-respondent had no jurisdiction over-the subject matter of the injunction suit because' this court-had previously taken jurisdiction over a quo warranto case, State ex inf. J. E. Taylor, *1170 Attorney General ex rel. Kansas City v. City of North Kansas City, No. 40216, which involves all the issues of and the parties to the injunction suit. It says the only question presented is: Has the Circuit Court jurisdiction to decide an issue in a class action where the same issue is presented in a class action by the same class as inter-veners in a cause óf which the Supreme Court has previously taken jurisdiction?

The quo warranto case was commenced in December 1946 after both Kansas City and North Kansas City had voted to annex part of the same territory in Clay County. It is still pending in this Court, awaiting the report of the Special Commissioner appointed by us to hear it, the evidence of all parties having been heard. The purpose of the quo warranto case was to oust North Kansas City from municipal jurisdiction over the area sought to be annexed by Kansas City and to. declare that Kansas City had such jurisdiction. The annexation by Kansas City was made effective, by its ordinance, January 1, 1950. Several residents of Clay County living in the area sought to be annexed by Kansas City intervened in the quo warranto case to oppose the annexation on behalf of all others similarly situated. The grounds stated in their intervention petition included the following: “That the proposed annexation and assumption of jurisdiction over said area by the plaintiff will subject the property and inhabitants in the area sought to be annexed to taxation to pay the present large indebtedness of Kansas City, Missouri, and to pay such additional debts as. may be incurred by Kansas City, Missouri, up to the first of January, 1950, and without such property or inhabitants in Clay. County, Missouri, receiving any corresponding benefits therefrom. That the voters in the Clay County area sought to be annexed are prevented by the Charter of Kansas City, Missouri,' from participating in elections in Kansas City. ...”

The injunction'suit was also brought as a class action by residents of Clay County living in the area sought to be annexed by Kansas City, but they are not the same persons who intervened in the quo warranto case. The injunction suit was brought against Kansas City, its Mayor, members of the City Council, City Manager, Director of Finance, and members of the Board of Election Commissioners. The injunction petition alleged that plaintiffs therein and others similarly situated were not permitted to vote at the 1947 bond election; that “virtually all of the public [735] improvements to be made from the proceeds of the aforesaid bond issues are to be made within the corporate limits pf defendant Kansas City, Missouri, as same' 'were' before the alleged.-annexation”; and that “the property of plaintiffs and all other property similarly situated will be taxed on the same basis as property within the corporate limits of defendant Kansas City, Missouri, as such limits were before the alleged annexation. ’ ’

*1171 The City contends that these allegations show the identity of the issues in, the two , actions. It says' that the issues in the injunction suit will be determined in the quo warranto case because if that case is decided against it the residents of the area will have no complaint; and’if it is decided for it the finding would by necessary implication mean that the court rejected all points raised in the opposing pleadings. In any event," it argues that this Court has the exclusive right to decide these issues in the quo warranto case. However, respondent contends that the judgment in the quo warranto case can only be ouster or non-ouster; that the issue in the injunction suit is the validity of the particular bond election; and that these bonds could be held unauthorized regardless of which way the quo warranto case is decided.

We do not think this is a proper case for prohibition. The City cites only abatement cases. O’Malley v. Lamb, 342 Mo. 171, 113 S. W. (2d) 810; Weisheyer v. Weisheyer (Mo. App.), 14 S. W. (2d) 486. “A plea in abatement for another action or suit pending had its origin in equity, is a dilatory plea of a technical nature, and challenges the right of the court to exercise an admitted jurisdiction.” [1 C. J. S. 51, Sec. 17; Drake v. Kansas City Public Service Co., 226 Mo. App. 365, 41 S. W. (2d) 1066, 54 S. W. (2d) 427; See also State ex rel. United States Fire Ins. Co. v. Terte, 351 Mo. 1089, 176 S. W. (2d) 25, in which we refused to compel by mandamus the trial of the case commenced first.] Of course, prohibition does not lie to prevent the exercise of an admitted jurisdiction. This question of abatement should be raised by answer. [State ex rel. Dunn v. Cowan, 231 Mo. App. 717, 105 S. W. (2d) 1009.] It is a matter that is waived if not pleaded. [Drake v. Kansas City Public Service Co., supra.] Even under such a plea in abatement, it has been held that the pendency of the same cause of action and issues, in another action, is not involved in the case of a suit for an injunction and- a quo warranto proceeding. [1 C. J. S. 67, Sec. 40; 1 C. J. 66, Sec. 80; 1 Am. Jur. 41, Sec. 36; State v. Schneider (Ohio), 134 N. E. 443; State v. Stickley (S. C.), 61 S. E. 211.] We have held improper the abatement of a specific performance case, for enforcement of a contract for mining a clay pit, which was on the ground that a previous injunction suit to prevent the adverse claimant from mining the clay involved the same issues. [Mexico Refractories Co. v. Pignet’s Estate (Mo.), 161 S. W. (2d) 417.] We said that the essential relief sought in the second suit could not possibly have been granted in the first because-“injunction will not lie as an original and independent suit to try title.” We think the situation as between quo warranto and injunction -is analagoús. Quo warranto and not injunction is. the proper action for testing the City’s right to the disputed territory.

The City also contends that intervening in the quo warranto case by members of the'same class bars the injunction suit because -it *1172 constituted a binding election of remedies. However, that is not a jurisdictional question either. An election of remedies is an affirmative defense. [28 C. J. S. 1100, Sec. 28; Bartlett v. MeCallister, 316 Mo. 129, 289 S. W. 814, l. c. 820.] Therefore, it is a matter which the trial court may properly decide.

Our preliminary rule in prohibition is .discharged.

All concur except Tipton, J., not sitting.

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