Summary
In Harris, Kansas City sought to prohibit a trial judge from proceeding in an action for declaratory judgment and injunction filed by residents in Clay County against Kansas City who sought to annex their county.Harris, 212 S.W.2d at 734.
Summary of this case from City of St. Louis v. City of O'FallonOpinion
No. 40771.
June 14, 1948. Rehearing Denied, July 12, 1948.
1. PROHIBITION: Courts: Injunctions: Quo Warranto: Municipal Corporations: Pendency of Prior Quo Warranto Action: Subsequent Injunction Action: Jurisdiction of Circuit Court: Right of Annexation. After a quo warranto action had been filed in the Supreme Court to test the right of Kansas City to annex certain territory, an injunction suit was filed in the circuit court raising similar issues. Prohibition will not lie, as the issue is one of abatement which may be raised in the answer, and the circuit court has jurisdiction. And the relief to be granted is not the same in the two actions. Quo warranto and not injunction is the proper action for testing the city's right to the disputed territory.
2. PROHIBITION: Election of Remedies: Prior Pending Action: Jurisdiction Not Involved. Jurisdiction of the circuit court is not involved in the question of whether a prior pending quo warranto action constituted a binding election of remedies, which is an affirmative defense.
PRELIMINARY RULE DISCHARGED.
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, 51 F. Supp. 500; Greer v. Scearce, 53 F. Supp. 807; State ex rel. Bernero v. McQuillin, 246 Mo. 517, 152 S.W. 347; Moore v. John J. Dowling Realty Co., 106 S.W.2d 238. (13) Relator's election of remedies theory cannot be considered here because it was not presented to the court below. It is well settled that prohibition will not lie unless the matter has been first presented to the court below. State ex rel. National Rys. v. Rutledge, 331 Mo. 1015, 56 S.W.2d 28, 85 A.L.R. 1378; State ex rel. Brncic v. Huck, 296 Mo. 374, 246 S.W. 303. (14) Relator's election of remedies proposition cannot be considered because it was not pleaded. Election of remedies being an affirmative defense, it must be pleaded in order to be available. Bartlett v. McCallister, 316 Mo. 129, 289 S.W. 814; Powell v. Dorton, 321 Mo. 639, 12 S.W.2d 453; Denny v. Guyton, 327 Mo. 1030, 40 S.W.2d 562; Sec. 40, Civil Code of Missouri. (5) In original proceedings in this court, matters of affirmative defense must be pleaded; and, if not, they cannot be considered. State ex inf. Attorney General v. Arkansas-Missouri Power Co., 339 Mo. 15, 93 S.W.2d 887. (16) As the causes of action are different, the election of remedies doctrine does not apply. It applies only where the party has but one cause of action, one right infringed, one wrong to be redressed. The doctrine does not require election between distinct causes of action arising out of separate and distinct facts. Broz v. Hedgwood, 349 Mo. 920, 163 S.W.2d 1009. (17) The election of remedies doctrine does not apply because the bond suit cause of action did not even exist when the amended intervening petition was filed in the quo warranto proceeding. The doctrine of election of remedies applies only where there are two existing alternative remedies available. State ex rel. Bank of Nashua v. Holt, 348 Mo. 982, 156 S.W.2d 708. (18) Quo warranto intervenors filing of amended petition did not constitute an election of remedies as to the bond election because plaintiffs below did not know that defendants below would subsequently begin the bond election proceedings. Knowledge of the facts is essential to . . . election. Sutorius v. Mayor, 350 Mo. 1235, 170 S.W.2d 387. (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.
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, 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 interveners in a cause of 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 of 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."
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 analagous. 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 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. McCallister, 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.