and dimensions of such billboard, fence or sign. If the said superintendent of buildings finds that such application is for a lawful purpose, and that the proposed billboard, fence or sign is in compliance with the provisions of the city ordinances, he shall issue such permit to the person, firm or corporation applying therefor." It appears in the record, and is undisputed, that the billboard in controversy had been erected without a permit before the petition in this cause was filed. There is no contro versy as to the facts above stated. the inspector of buildings of Kansas City, Mo., at the time of making such tender by relator, was the proper person to whom such fee should be paid." The alternative writ further avers that the erection of such billboard is not in violation of any ordinance of Kansas City, Mo., or of any law, and that the Mayor of Kansas City, of his own motion, and by no other and different authority than the general power supposed to be vested in him, issued an Defendant urges five points in support of order directed to the superintendent of buildhis appeal: First, that the alternative writings forbidding him to issue a permit to the does not state facts sufficient to entitle re- relator; that the said superintendent of does not state facts sufficient to entitle re-buildings refused to issue the permit for no lator to a peremptory writ. [1] When an alternative writ of manda- other reason than that the mayor had directmus is issued, it becomes the primary plead-ed him not to do so. ing in the cause. The averments in an alternative writ may be informally stated, and may not be required to be so strictly con strued as pleadings in ordinary actions, but whatever is essential to good pleading in an ordinary action must be contained therein in substance, although stated in general terms. Merrill on Mandamus, § 254. The writ must aver all the facts necessary to give the petitioner the right which he claims, and to justify the order sought. The petitioner must show affirmatively that he has performed all the things necessary to have been performed by him, and the manner of such performance, to entitle him to the writ. The facts also must be set forth which clearly show that it was the defendant's duty to perform the thing asked, and show that the act was not in excess of his legal obligation and that he still has power to do it. The writ must show that it is relator's right to have the act done, that it is defendant's duty to perform it, and that relator has no other plain, speedy, and adequate remedy. "Every material fact on which the relator relies must be set forth distinctly, unreservedly, fully, and clearly." Merrill on Mandamus, § 255, and cases therein cited. In other words, the relator must show a good cause on the face of his petition, and, if he fail to do this, he is not entitled to a writ based thereon. [2] In the case at bar relator avers: That defendant is superintendent of buildings of the city of Kansas City, Mo., and that relator, Thomas Cusack Company, has heretofore made application for a permit to erect a billboard at 2441 McGee Street Traffic Way in Kansas City, Mo., and tendered the required fee, or license; "that in strict compliance with all, each, and every the terms, conditions, and requirements of Ordinance No. 33950 of the city of Kansas City, relator made due application to the inspector of buildings of said Kansas City for a permit to erect and maintain said billboard, and at the time of making said application tendered to the said city of Kansas City through its superintendent of buildings all fees and charges prescribed by the terms of said Ordinance No. 33950 for such permit; that Nowhere, so far as the record shows, does the alternative writ state what were the "terms, conditions, and requirements of Ordinance No. 33950"; neither does the writ show that defendant is authorized to issue such permits. The allegation is "that, in strict compliance with all, each and every the terms, conditions, and requirements of Ordinance No. 33950, *** relator made due application," etc. We must conclude that relator's statements relative to those "terms, conditions, and requirements" are merely his own conclusions, and therefore not good as a pleading. Other elements necessary to entitle relator to the relief prayed are omitted, but, as the case will be reversed for reasons hereinafter stated, they need not be further discussed in this opinion. Defendant's first point, to the effect that the alternative writ does not state facts sufficient to entitle relator to a peremptory writ, is well taken. [3] It remains only to be determined whether the case will be remanded or reversed outright. The record shows that the bill board in question had been erected prior to the institution of suit, and that at the time this writ was applied for relator was being prosecuted for erecting a billboard without a license, from which circumstance the inference is plain that this cause was instituted in aid thereof. Can we say that relator comes into court "with clean hands," in the dence? We think not. light of all the facts disclosed by the evi The defendant testified, and it is undisputed, that no application was made for a permit until after the billboard had been erected. The only relief relator possibly could secure from the issuance of the writ was in aid of his defense in the prosecution then pending against him. The billboard already had been erected, and the only purpose the issuance of the writ could serve would be to permit relator to do a thing it already had done without a permit and in violation of a city ordinance. "That an injunction will not issue on a bill directed to acts gone by, that the strong arm of a court (232 S.W.) of equity, symbolized in an injunctive writ, f taxes would be contrary to the general scheme is not corrective of past injuries, is funda- of collecting and assessing land taxes as shown mental." Davis v. Hartwig, 195 Mo. loc. cit. by the Constitution and statutes of the state, 398, 94 S. W. 512, and authorities there cited. and would be inoperative for that reason, inNumerous cases supporting this principle of of which the appellate court has no jurisdicvolves a constitutional question for the decision law will not be cited for the reason that the tion, involving the construction of Const. art. rule is so fundamental and the reason so 9, § 16, and not the application thereof. plain that further citation of authority is 7. Appeal and error 170(2)-Constitutionunnecessary. al question not raised waived. For the reasons above stated, we conclude the court erred in overruling defendant's motion to quash the writ. The judgment is reversed. (208 Mo. App. 261) COMMERCE TRUST CO. v. SYNDICATE 1. Municipal corporations 405-"Tax" does Ordinarily the words "tax" or "taxes" do not include local assessments, unless there be something in the language where the word is found to indicate such an intention (citing Words and Phrases, First Series, Tax). 2. Municipal corporations 407(1)-"Special taxes" as used in constitutional provision held not to include local assessments. Even the words "special taxes" do not include local assessments, as those words are used in Const. art. 10, § 11. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Special Tax.] trial court must be treated as waived on apA constitutional question not raised in the peal. Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge. Suit by the Commerce Trust Company against the Syndicate Lot Company and Joseph Johnson. From an adverse judgment, the last-named defendant appeals. Affirmed. Joseph Johnson, of Kansas City, for appellant. B. C. Howard and Wm. D. Bush, both of Kansas City, for respondent. BLAND, J. This is a suit upon three special tax bills issued by Kansas City. There was a trial by the court without the aid of a jury, resulting in a judgment for the full amount of each tax bill, together with interest. The judgment further declared the tax bills a lien on the lots superior to defendants' title. Defendant Johnson has appealed. In his answer defendant Johnson claims a superior title to the lien of the tax bills. This claim is based on certificates of pur 3. Municipal corporations 405-Word "as- chase and a tax deed issued by Kansas City sessment" defined. The word "assessment" is used in more than one sense, being ordinarily understood as consisting in the due process of listing the persons, property, etc., to be taxed and of estimating the sums that are to be the guide in an apportionment of the tax between them. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Assessment.] 4. Municipal corporations 975-Special tax lien inferior to general tax. The lien of special tax bills for local improvements is inferior to that for general taxes, where there is no provision to the contrary. 5. Municipal corporations 975-Lien of city for taxes subject to lien of holder of prior tax bills issued by city. The lien of the city of Kansas City for taxes on real estate is subject to the lien of the holder of the prior tax bills issued by the city in payment of local improvements, under City Charter 1909, p. 239, art. 5, § 39. 6. Courts 231 (6)-Construction of a provision of the Constitution raises a constitutional question and not the mere application of the Constitution. A point that making of a lien of tax bills a superior lien to that of the city for general for general taxes for the years 1910, 1911, 1912, 1913, 1914, 1915, 1916, 1917, 1918, and 1919. There is no claim of invalidity made against plaintiff's tax bills or said defendant's certificates of purchase or his tax deed. The only question in controversy is whether the lien of the city for taxes on real estate is subject to the lien of the holder of prior tax bills issued by the city in payment of local improvements. This question involves the construction of article 5, § 39, p. 239, Charter of Kansas City 1909. This section provides for the execution of a deed by the city treasurer in pursuance of the sale for delinquent taxes of land in the city; that, after the redemption period of five years has expired, on presentation by the holder of a certificate of purchase, the city treasurer shall execute- "to the purchaser, his heirs or assigns, a deed of the real property described in such certificate of purchase, remaining unredeemed, *** and deliver the same to the grantee, which deed shall vest in the grantee an absolute estate in fee simple in the real property described therein, and shall convey all the right, title and estate of the former owner or owners, free from any and all incumbrances of whatsoever For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes kind or nature, subject, however, to all unpaid | sessments to pay therefor"; that if the board state, county and city taxes, general and special shall determine that the proposed improvetaxes or assessments which are a lien thereon." ment is not for the public interest to "be (Italics ours.) [1-4] A decision of this question rests upon the construction of the words "special taxes or assessments" as used in this section and article of the charter. Ordinarily, the words, "tax or taxes," do not include local assessments, unless there be something in the language where the word is found to indicate such an intention. 8 Words and Phrases, pp. 6873, 6874. It is held in this state that even the words "special taxes" do not include local assessments as those words are used in section 11, art. 10, of the Constitution of this state. Farrar v. City of St. Louis, 80 Mo. 379; Kansas City v. Bacon, 147 Mo. 259, 48 S. W. 860; Adams v. Lindell, 5 Mo. App. 197; Adams v. Lindell, 72 Mo. 198. The word "assessment" is used in more than one sense. As ordinarily understood: An "assessment consists in the two processes of listing the persons, property, etc., to be taxed, and of estimating the sums which are to be the guide in an apportionment of the tax between them." 1 Bouvier's Law Dictionary, p. 256 (3d Revision); State ex rel. Allen v. Railway, 116 Mo. 15, 23, 22 S. W. 611. made and paid for, either out of the general special tax bills evidencing assessments Section 4 of said article provides that the The lien of special tax bills for local improvements is inferior to that for general board of public works shall at the time of taxes, where there is no provision to the con- accepting any improvement on the part of the city "make and levy an an assessment trary. Missouri Real Estate & Loan Co. v. Burri, 202 Mo. App. 242, 216 S. W. 570. So it against the tracts of land, exclusive of imis necessary for us to go to the other provi-provements, to be assessed to pay therefor, sions of the charter to ascertain what is meant by the words "special taxes or assessments" as used in section 39 of article 5 of the charter. the aggregate of which assessments shall equal the amount of the cost of such work to be paid in special tax bills." Section 7 of said article provides that the board of public works shall, in the matter of constructing districts sewers, "compute the whole cost thereof, and apportion and charge the same as a special tax against the lots of land in the * and shall district make out and certify in favor of the contractor or contractors to be paid, special tax bills for the amount of the special tax against each lot or parcel of land in the district." (Italics ours.) Section 12 of said article provides that"All computations, apportionments, or assessments required by this article to be made by the board of public works shall be held to be properly made when the same are approved by said board." By the use of the word "assessments" in connection with the words "special taxes," the framers of the charter must have meant something more than "taxes," as that word is usually construed to mean. In fact, it is clearly indicated in the charter that the words "special taxes or assessments" refer to tax bills. Article 8 of the charter deals with the making of public improvements and the payment therefor. Section 23, pp. 336, 337, of said article provides that all special tax bills issued under the charter and all benefit assessments arising out of condemnation and grading cases "shall be considered for the purpose of collecting or receiving payment thereof, as special taxes against any lot or parcel of land against which the same may be a lien." (Italics ours.) Section 1 of said article provides for the issuing of "special tax "That the board of public works may construct bills" to evidence "special assessments" for or reconstruct the paving, sidewalks, guttering public improvements. Section 3 of said ar- or curbing, or may maintain and repair the ticle, in relation to the improvements speci- same, or may grade or regrade any portion of fied in said section, provides that the board a street, avenue, alley or other public highway, within the city, without letting a contract for of public words by resolution "shall state the the same," and that "the cost of said work nature of the improvement, and when the may be assessed according to the method prosame is to be paid for in whole or in part in vided in this article applicable to the class of special tax bills, the method of making as-improvement made, and the assessments there Section 14 of said article provides: (232 S.W.) for may be made payable as provided "in the I made by the board of public works, and the charter when the work is done and completed; provisions of section 3 of said article relating that the city "is authorized to cause the issue of "to the apportionment of special assessments special tax bills for such work in favor of and the levy, issue and collection of special Kansas City * * and may authorize the tax bills as in grading proceedings as in said city comptroller to sell and assign such assess section specified, shall apply to special tax ments of such special tax bills." (Italics ours.) bills issued pursuant to this section, except that said tax bills may be made payable in not to exceed ten annual installments." (Italics ours.) Section 22 of said article provides for the keeping by the city treasurer of a special tax record showing the owners and the parties interested in the several tracts of land affect ed and charged with the "apportionment and Section 33 of article 5, being the article under which defendant procured his title to the land upon which the tax bills were issued, contemplates that the purchaser of the land at the delinquent tax sale shall pay tax bills that had been issued against it, for it provides that the purchaser "may pay any special tax or assessment, tax bill, park tax, grading, condemnation or other special benefit levied against such tract by authority of this charter." It also provides that the city auditor shall "indorse upon the certificate of purchase the amount of such fit." * spe Section 26 of said article provides that whenever any land shall be assessed for special tax or assessment, tax bill, park tax, cial benefits to pay for any public improve- grading, condemnation or other special benement, and the land shall be owned by a railroad corporation, "or any other public or quasi public corporation, * such land shall be assessed and a special tax bill issued to evidence the same in the same manner as though the same were the property of a private person, and if the sale of such land to enforce such assessment is contrary to the public policy or the laws of this state, then the amount of such assessment as may be evidenced by the special tax bill shall be paid" by such corporation. (Italics ours.) Section 27 of said article provides where any tax bill issued shall be judged to be void for the reasons named in such section, the "board of public works may, at any time within one year after the original issue of the tax bills, reassess any or all of the tracts of land subject to assessment to pay the cost of such improvement, according to the rule of assessment, and in the same manner and with the same effect and evidence the same by like tax bills as is provided in this article for such assessments in the first instance." (Italics ours.) Section 28 of said article provides that when the grading or regrading of any street or highway necessitates an expense of such magnitude as to impose a heavy burden on the land situated in the benefit district, the cost of such work "may be charged as a special tax on parcels of land * benefited thereby, after deducting the portion of the whole cost, if any, which the city may pay." And that after the final determination of the suit the city may enter into a contract with the successful bidder to whom the work may be let, and when the work is completed an estimate of the cost thereof and an apportionment of the same against the various parcels of land within the benefit district shall be 232 S.W.-67 Section 34 of this article, regarding the right of redemption by the owner of the property, requires the owner to pay the city treasurer "the amount for which such real property was sold, together with interest thereon at the rate per cent. bid per annum from the date of purchase, together with all other taxes, assessments or benefits subsequently paid by the purchaser." If the purchaser at the delinquent tax sale acquired a title free from all liens of tax bills and assessments, there would be no necessity of his paying such tax bills and assessments. [5] The whole scheme and tenor of the charter is that the words "special taxes" and "assessments" as used in section 39, article 5, mean local benefit assessments and tax bills. We think that, construing the whole charter in regard to tax bills, the words "special taxes or assessments" refer to local improvement assessments or tax bills such as sued on in this case. Boston Asylum v. Street Commissioners, 180 Mass. 485, 486, 487, 62 N. E. 691; Emery v. San Francisco Gas Co., 28 Cal. 345, 362, 363; Taylor v. Palmer, 31 Cal. 240; Howes v. City of Racine, 21 Wis. 514. There is nothing in section 9 of article 7 of the charter, which treats of court proceedings, to indicate otherwise. This section provides: "That the several lots or parcels of private property, so assessed to pay compensation by the verdict or report, stand severally charged and be bound for the payment of the respective assessments," and "that the city recover the respective amounts assessed against private property." While the word "assessments" as used in this section does not refer to special tax bills, the wording of section 39, art. 5, is, no doubt, broad enough to include such assessments. The same may be said of the "assessment" to be made for repairs of sidewalks, curbs, and gutters as provided for in section 15 of article 8 and of section 17 of article 7, which provides that It "shall be the duty of the city treasurer to receive the benefit assessments on private property at any time after the conclusion of the proceedings before the issuance of execution." This has reference to proceedings in court. The provision of section 19, art. 5, providing that "taxes upon real property are hereby declared a perpetual lien thereon against all persons," must be construed with section 39 of article 5, quoted supra. [6, 7] The point is made that the making of a lien of tax bills a superior lien to that of the city for general taxes would be contrary to the general scheme of collecting and assessing land taxes as shown by the Constitution and statutes of the state, and would be inoperative for that reason. Section 16 of article 9 of the Constitution, giving Kansas City power to enact its charter, provides that such charter "shall always be in harmony with and subject to the Constitution and laws of the state." A decision as to whether any provision or provisions of the charter are contrary to the general scheme of the state in relation to the same subject-matter involves the construction of said section of the Constitution, and not an application thereof, and therefore involves a constitutional question for the decision of which this court has no jurisdiction. State ex rel. Smith v. Smith, 152 Mo. 444, 448, 54 S. W. 218. However, no constitutional question was raised in the trial court; therefore, such a constitutional question has been waived, and is not in the case. Sheets v. Ins. Co., 226 Mo. 613, 618, 619, 126 S. W. 413. The judgment is affirmed. All concur. (209 Mo. App. 180) GALVIN v. BROTHERHOOD OF AMERI- (Kansas City Court of Appeals. Missouri. laws of the association, though the by-laws provided that the findings of the directors should remain in force until reversed by the Supreme Conclave. 2. Judgment 570 (3)-Judgment of dismissal held not res judicata in subsequent similar action. Dismissal of his case by plaintiff after a and after an answer and motion to dissolve temporary restraining order had been issued, the restraining order had been filed, held not res judicata that plaintiff was not entitled to the injunction sought in subsequent similar ac tion in other county. 3. Insurance of 694 (3) - Investigation charges against member will not ordinarily be enjoined. Court will not enjoin board of directors of fraternal benefit society from investigating charges made against a member under by-laws sit as a board of investigation with the power of the association authorizing the board to to summon witnesses and conduct the trial in such a case, in the absence of a showing that the board was acting in other than a fair and impartial manner; the member having an adequate remedy at law under such by-laws. Appeal from Circuit Court, Cole County; John G. Slate, Judge. Suit by James C. Galvin against the Brotherhood of American Yeomen. Judgment for plaintiff, and defendant appeals. Reversed. A. H. Hoffman, of Des Moines, Iowa, Irwin & Haley, of Jefferson City, and Humphrey, Boxley & Reeves, of Kansas City, for appellant. John H. Pollock and Sloane Turgeon, both of Kansas City, and A. T. Dumm, of Jefferson City, for respondent. ARNOLD, J. This is a suit in equity to enjoin defendant, its officers, servants, agents, and employees, from interfering with plaintiff in his rights as an officer and member of defendant corporation. Defendant is a fraternal benefit society and plaintiff is a member thereof, holding the position of correspondent of one of the "homesteads," or subordinate lodges, located at Kansas City, Mo., and he also occupied a position in defendant's organization known as state foreman. Defendant, for the purpose of carrying out its organization scheme as a fraternal beneficiary association, has a constitution and by-laws, and these provide for 1. Insurance 694 (3)-Finding of board of the government of the central organization directors of association upon investigation of and also for the government of its subordicharge against member reviewable by court. nate divisions, and in a like manner provide Member of fraternal beneficiary insurance for the discipline of members and create a association, who occupied the positions of corjudiciary for controversies between members. respondent of a subordinate lodge and of state foreman, had a sufficient pecuniary interest in In 1919, one P. A. Stark, a member of the the association to give the court jurisdiction order and holding a position known as state to review a finding of the board of directors manager for Missouri, filed charges before sitting as a board of investigation to consider the board of directors of defendant and asked charges preferred against him under the by-action on the part of said board, under the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |