text:
    STATE ex rel. A. W. VANHAFFTEN v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    December 13, 1920.
    1. COLLATERAL ATTACK: Interlocutory Orders: Appeal from Temporary Injunction. The rule against permitting collateral attacks applies to protect interlocutory orders and proceedings of a court of competent jurisdiction, as well as to its final judgments. A' circuit court, having jurisdiction of the subject-matter and of the parties, has power to order a temporary injunction and to continue it in force pending an appeal, and those orders are not open to collateral impeachment by the parties to the action, or by persons represented by or in privity with them, as having been collusively procured.
    2. -: -: Action on Tax Bills: Delay in Completing Improvement. The city had contracted that the improvement of a certain street should be completed in 130 days; the contractor induced the owner of an abutting lot to bring injunction against the contractor and the city, to enjoin the work, on the ground that the street was not a continuous thoroughfare, and the circuit court, having ruled that it was and that the ordinance was legal, granted an appeal to the owner, and continued the temporary restraining order pending the appeal, ahd the improvement was. discontinued while the appeal was pending; the appellate court having affirmed the judgment, the work was resumed and completed within proper time, allowing for the time while the appeal was pending, but not within 130 days after the contract was made; tax bills were issued, and the owner of lots, who was not a party to the injunction, brought suit to cancel those issued against his property, alleging they were void because the improvement was not completed within the time specified; the' contractor set up the injunction and the pending appeal as a defense, and the reply charged that they were procured “at the instance and through the instrumentality of said contractor, and for the purpose of stopping said work, and said injunction as procured does not operate to extend the time.” Held, that the validity of the orders relating to the injunction were called into question by the reply, and it is a collateral attack upon their validity, and not being made in a direct proceeding to have them vacated, the plaintiff cannot avail himself of that collusive judgment as his ground for having the tax bills cancelled.

      . -: -: By Stranger. A person who was a stranger to a judgment, but who acquired subsequently the title asserted to be affected by it, cannot assail the judgment collaterally. A person who acquired lots, against which tax bills had been issued for the improvement of the adjoining street, cannot, in his suit to have the tax bills cancelled on the ground that the improvement was not completed in time, assail, as the result of collusion, a judgment in an injunction suit to enjoin the improvement, in which from an order refusing a temporary writ an appeal was taken, to which suit such subsequent owner was in no wise a party, and which pending appeal is set up in the answer to his petition as an excuse for the delay in completing the improvement. To impeach the judgment and orders in the injunction suit, in a collateral proceeding, such as is one to have the tax bills cancelled is, is a •'“•right not available to a stranger to them; and a purchaser who acquires title to abutting lots after the street is improved and the tax bills are issued, is a stranger to a prior judgment in a suit brought by others against the contractor and the city to 'enjoin the improvement, Such subsequent purchaser of lots against which assessments were made for improvements completed in time after the injunction was finally dissolved, to which he was not a party, has no right or interest which was impaired by the injunctive orders at the time they were made, and consequently he is not in a position to impeach the orders by a suit to cancel the tax bills.

      Certiorari.

    Record quashed.

      John E. Dolman for relator.
    (1) In certiorari, to review the opinion of a Court of Appeals reference in the opinion to the pleadings, judgment and orders in the case of McQueen v. VanDeusen, makes them as much a part of the opinion as if fully-written out therein. State ex rel. Kansas City v. Ellison, 220 S. W. 498. (2) In holding and deciding that “if it Jbe said that insofar as the decree herein finds that the McQueen case was a sham, it is a collateral attack therein, then it can be said in answer that the plaintiff herein •was not a party to the McQueen case, nor in privity with any one who was or should have been a party; hence his right to show in this case that the McQueen case was in law collusive, is not impaired,” is in conflict with the prior decisions of this court in the following cases: Wilson v. Rainey, 74 Mo. 234; Jaicks v. Oppenheimer, 264 Mo. 693. And it further appearing in said opinion that plaintiff acquired title to the lot in question the day before he brought his suit, long after the McQueen judgment was rendered, said opinion is also in conflict with Abington v. Townsend, 197 S. W. 253. (3) In holding and deciding that “we do not regard this case as making any attack upon the McQueen judgment, hence no question of collateral attack is involved” said decision is in conflict with the prior decisions of this court in Lovitt v. Russell, 138 Mo. 482; Leiber v. Leiber, 239 Mo. 54; Yrana v. St. Louis, 164 Mo. 150; Harter v. Betty, 181 S. W. 40. (4) The holding and deciding that “no relief against that judgment is sought or granted” is in effect a holding that the temporary injunction granted in the McQueen case was no part of that judgment and could not be continued in force pending an appeal to the Court of Appeals, which decision is in conflict with the prior decisions of this court in State ex rel. v. Dearing, 180 Mo. 64; Comm. Co. v. Spencer, 236 Mo. 628.

      Eugene Silverman for respondents.
    (1) No question of collateral attack upon the judgment in the McQueen case is involved in the opinion complained of. The question decided arises upon the construction of the improvement contract, and the decision is that delay caused by the contractor cannot be taken advantage of by him for extension of time of performance, and that this is true, even though such delay is because of injunction where such injunction is procured by the contractor- against himself. The McQueen case involved the validity of the proceedings prior to the letting of the contract; this case involves the performance of the contract. Hence no matter litigated in the McQueen case is here brought into question. (2) The opinion complained of is not in conflict with Wilson v. Rainey, 74 Mo. 229. That case is one involving matter of general interest to all the inhabitants of a county. No question of special taxation for special benefits was there involved. That a municipality is the representative of the lot-owners where their interests are distinct and different from the general public has never been held by this court, and that it is not their representative in such cases has been often held in other jurisdictions. 23 Cyc. 1269: Long v. Wilson, 119 Iowa, 267; James v. Louisville, 40 S. W. (Ky.) 912; Tifft v. City of Buffalo, 49 N. Y. Supp. 439; Rork v. Smith, 55 Wis. 67; Murphy v. Summersett, 147 Pac. 202; Loesnitz v. Seelinger, '25 N. E. 1039; Haese v. Heitzeg, 114 Pac. (Cal.) 816. Even where otherwise applicable, the rule of the Rainey case never applies in collusive cases, such as the McQueen case. 2 Black on Judgment, sec. 508; 15 R. C. L. 841, 857. (3) The city was not a necessary party to the- McQueen ease, and no relief was asked against the city that would not necessarily follow from a granting of relief against the contractor. Prior to the institution of the McQueen case the contractor had entered into contract with the city for the construction of the work, and therefore the city was not defending, either for its own benefit or that of its inhabitants, any action in which it had any legal interest. Under such conditions no estoppel by representation could arise. (4) There is no conflict with the other cases cited in relator’s brief. In those cases a party to a former action, and who was actually in court in such action, attempted, in a collateral proceeding, to again litigate matters concluded by such former action. (5) If this case involved a collateral attack upon the McQueen case, Williams would not be barred from making such attack, as he was neither party nor privy to the McQueen case, and that case was a collusive action. Callahan v. Griswold, 9 Mo. 792; State ex .rel. v. St. Louis, 145 Mo. 567; 1 Black on Judgments, sec. 260; 2 Black on Judgments, sec. 600; 15 R. C. L. 841, 857; 23 Cyc. 1099. (6) The holding in Arlington v. Townsend, 197 S. W. 253, has no application. In that case a party purchasing lands was held bound by a decree previously entered with respect to that same land and directly áffecting the title he received. The purchase was of the “subject-matter of the judgment” (197 S. W. 1. c. 257). The lot owned by Williams was not involved in the subject-matter of the McQueen case. .(7) The opinion in Williams v. VanDeusen does not directly or indirectly deny the right of a court to keep an injunction in force pending an appeal. There can, therefore, be no conflict with State ex rel. v. Dearing, 180 Mo. 61, or Commission Co. v. Spencer, 236 Mo. 628.
   GOODE, J.

The record in this case was brought up from the Kansas City Court of Appeals pursuant to a writ of certiorari issued "out of this court to the respondents, the judges of said Court of Appeals. The writ was issued upon the petition of the relator, wherein he alleged that the decision of the Court of Appeals in the case of Willis Williams, Respondent, v. R. W. VanDeusen et al., Appellants, 219 S. W. 395. was in conflict with prior decisions of this, court. Gathering the facts from the opinion of the Kansas City Court of Appeals, we learn the said suit of Williams v. VanDeusen was in equity and was filed to have cancelled a series of five installment tax bills issued against a lot, in the City of St. Joseph, owed by Williams, to pay for paving’ the street in front of the lot. The tax bills were cancelled by the decree of the court of first instance as casting a cloud on the title to the lot, and on the appeal of A. W. VanHafften, who is the owner of the bills, and of VanDeusen, the two defendants in the case, the decree was affirmed.

The reason for which the tax bills were cancelled was, that the work of improving the street was not completed by the contractor, in the time prescribed by the ordinance which authorized the improvement. The contract was awarded to VanDeusen September 24, 1914, signed September 30, 1914, and it allowed one hundred and thirty days for the completion of the improvement. Work was begun October 3rd of said year, but on October 7th was stopped and not resumed until sometime in May or June, 1915, the improvement being finished about November 1, 1915. The cause of the suspension of work was the filing of a suit by Lizzie McQueen against VanDeusen and the City of St. Joseph to enjoin the paving of the street, mainly for the alleged reason that, contrary to the controlling statute,' the ordinance to authorize the improvement had extended it over streets having different names, running in different directions, and not parts of a continuous highway. In that suit a temporary restraining order was issued by the circuit court, which was continued in force by an order of said court pending an appeal taken by lizzie McQueen, from the judgment given against her by the circuit court, to the Kansas City Court of Appeals. The Court of Appeals affirmed the judgment, holding the ordinance in question provided for an improvement along a continuous thoroughfare of the city, not running in a direct line throughout its course nor bearing the same name over its entire length, but, in fact and in law, a single highway, so that the improvements ordered was a- single improvement, instead of being separate improvements of different streets.

After the final disposition of the McQueen case (McQueen v. VanDeusen, 189 Mo. App. 492), VanDeusen again went to work and, as stated, completed the performance of his contract about the first of November, 1915, but not within the number of days allowed for completion in his contract with the city. Tax bills were issued to pay the cost of the improvement, five of them constituting an apparent lien against the lot of Wilks Williams and casting a cloud upon his title, Williams acquired this lot by gift from the Bowen Investment Company, the lot being of little value because “of a hole in it.” The deed to Williams was executed and delivered by the Bowen Investment Company the day before Williams filed the suit to cancel the tax bills, but both Williams and the Investment Company said the conveyance was absolute, and that Williams was the sole owner of the lot when he sued.

Williams asked to have the tax bills cancelled because VanDeusen did not finish the work within the time stipulated, to-wit, 130 days after the date of the contract between him and the city. In defense, VanDeusen and his co-defendant, Van Ilafften, to whom the tax bills had been assigned for value, alleged the completion of the work within the period provided in the ordinance was prevented by the injunction issued in the McQueen case, and that by virtue of a section of the statutes (R. S. 1909, sec: 8840), and of the ordinance passed pursuant to the section, the time fixed for completion was extended for such a period as the contractor might “be actually and necessarily prevented from pursuing said work by bad weather, a general strike of his employees, or an injunction against him.” In reply to that answer Williams alleged the said injunction was procured at the instance and through the instrumentality of the contractor, and for the purpose of stopping the work, and that an injunction so procured did not operate to extend the time beyond the iJeriod provided in the contract. The circuit court found VanDeusen, the contracto!*, had instigated the suit of Lizzie McQueen to enjoin the improvement, had maintained said suit through all its stages, and that his sole purpose in doing so was to obtain a judicial determination of the validity of the ordinance for the improvement; that but for the instigation and maintenance of it by the contractor, the injunction suit would not have been brought. Therefore the circuit court held the time stipulated in the contract for the completion of the work was not extended by the writ of injunction issued in the McQueen case. •

The Kansas City Court of Appeals said, in its- opinion in the Williams case, there was no question that VanDeusen did instigate and maintain the McQueen suit, but not from any fraudulent or corrupt motive, or for the purpose of securing delay; that it-was the widespread opinion in legal circles the ordinance in question was void because it authorized the improvement of several different streets under different names, and the purpose of the' McQueen suit, which was brought in a friendly spirit against the contractor and the city, was to determine the validity of the ordinance, the question being a public one, which the city and contractors generally were interested in having settled, as other ordinances of the same kind had been passed and contractors had refused to bid for work authorized by them because of a doubt about whether-they were legal. The Court of Appeals said also the city, by its counsellor, defended the McQueen suit through the courts; that ap honest and bona-fide effort was made to have the ordinance declared invalid, and the suit was pressed earnestly and faithfully; that no extension of the time for completion of the improvement was formally applied for by VanDeusen, during the pendency of the injunetion.suit, or granted by the legislative authorities of the city. Said court held, as the circuit court had, that as VanDeusen was the real party in interest in the McQueen suit, and had caused it to be instituted and a restrainipg order to be issued against himself, he was entitled to no extension of time to finish the work while the temporary writ of injunction was in force. The relator in the present proceeding, VanHafften, insists this ruling of the Court of Appeals permitted a collateral attack on the judgment in the McQueen case by Williams, and therein is in conflict with the decision of this court in these cases: Wilson v. Rainey, 74 Mo. 229; Lovitt v. Russell, 138 Mo. 474, 482; Vrana v. City of St. Louis, 164 Mo. 146, 150; Lieber v. Lieber, 239 Mo. l. c. 54; Harter v. Petty, 181 S. W. 39, 40.

The relator also argues that the decision of the Court of Appeals was erroneous for a different reason, in allowing Williams to collaterally attack the judgment in the McQueen case, and not only erroneous, but in conflict with the decision of this court in Abington v. Townsend, 197 S. W. 2531

In support of the first contention it is argued that the city being a defendant in the McQueen, case represented all the lot-owners against whose property tax bills would be issued, and the owners of the lots at the date of said judgment were therefore bound by the judgment.

In support of the second contention the argument is that although Williams was not the owner of his lot at that time, and if, in consequence of that fact he was not represented by the city when the McQueen judgment was rendered, but was a stranger to,that suit, nevertheless, as a stranger, he was precluded from attacking collaterally the McQueen judgment, because he acquired title to his lot after the rendition of it and after the tax bills were issued.

I. The attorney for the relator, Van Hafften, does not contend the decision of the Court of Appeals in the instant case, that the injunction procured by VanDeusen against himself worked no extension of the time . in which he was bound to complete his contract, is in conflict with any decision of this court. The proposition invoked for the relator is that the decision of said court permits Williams in the present case to attack collaterally the judgment in the McQueen case, and in that respect is in conflict with the decisions of this court cited above. The reasons for the ruling of the Court of Appeals on the proposition were set forth in the opinion on the motion of VanDeusen for a rehearing. The court said relief against the judgment was not demanded by Williams; that the judgment passed only on the legality of the city ordinance authorizing the improvement of the street; whereas in the present case that question is not determined, but only the question of whether the contractor finished his work Avitliin the time allowed him by the contract; said further that if the decision in the present case is a collateral attack on the McQueen judgment, yet as Williams was neither a party to it nor in privity with any one who was, or should have been a party, he has the right to show the McQueen suit and all the proceedings in it were collusive.

Much is said in the briefs pro and con upon the proposition that this suit is a collateral attack on the McQueen judgment. It is not an attack on the final judgment, as the Court of Appeals had no difficulty in showing, for it does not question the point in decision that the street to be improved was a continuous thoroughfare and the ordinance for its improvement valid. The attempt of the plaintiff McQueen to enjoin the improvement and the issuance of the tax bills to pay for it, failed in both .the circuit and the appellate court—both courts held no. injunction should be granted. But a temporary injunction had been obtained, presumably in the usual mode by the plaintiff giving a bond of indemnity, and the circuit court thereupon ordering a temporary writ, which was continued in force pending the appeal by another order. What is in dispute here is the effect of those interlocutory judgments or orders, not the final judgment, and the right of Williams to impeach said interlocutory orders. In the motion for a rehearing, the precise point “that the judgment in. the McQueen case granting the injunction” could not be attacked in this case was pressed in the Court of Appeals, and in the overruling of the motion was decided against the relator. It is not a clear expression of the scope of the inquiry necessary to be made in the present case to say it embraces no more than the issue of whether the work was completed in the time stipulated, which is the theory of the petition. Rightly to dispose of the controversy, the effect of the orders made in the McQueen case must be considered. Therefore the questions for determination by this court as we conceive the case are these:

.First: Does the rule of law against collateral attacks apply to the orders relating to the temporary writ of injunction, to such incidental orders made in the course of a litigation?

Second: Does this suit, contain an attack of that kind?

Third: If it does, was the plaintiff Williams precluded from thus attacking the orders' either: (a) Because he or his grantor so far stood in privity with the city as to be bound by the proceedings in the McQueen suit to which the city was a party,- or (b) Because, if he was a stranger to those proceedings, he acquired his title after they had occurred?

Fourth: Did the court of appeals decide any point contrary to a previous decision of this court?

Taking up the first question we answer that the rule against permitting collateral attacks applies to protect interlocutory orders and proceedings as well as final judgments, though the doctrine of res judicata does not. [Van Fleet on Collateral Attack, sec. 17, p. 21.] In marking out the line of distinction between the two doctrines, that treatise, at page 23, says one difference is that a judgment must be final and on the merits to constitute a bar to the further consideration of the issues in the case on the ground.that they are res judicata-, "while each and every step taken or order made in the proceeding, whether it concerns the merits or not, is just as impervious to collateral attack as the final judgment on the merits;” further, "that an interlocutory order, no matter how erroneous, if not void, will justify dr protect all persons as completely as the final judgment itself. An error therein no more than in a final judgment, is no excuse for disobedience.”

The contrary theory, if adopted, would tend to frustrate the policy of the law to prevent matters once judicially determined from being drawn again into litigation. This court has applied the rule in many cases, of which we will notice a few by way of illustration.

Defective service of a writ of scire facias issued against an administrator to revive an action and followed by a judgment and a sale of land by tbe sheriff cannot be availed of'in an action of ejectment to show the judgment was void and.thereby defeat the effect of the sheriff’s deed. [Draper v. Bryson, 17 Mo. 71, 82.]

An order made pursuant to a statute by a county court possessing probate jurisdiction, for the reservation of the personal estate of a decedent and the sale of the realty to pay debts, is. not assailable collaterally, no matter if the order wás 'erroneous. [Overton v. Johnson, 17 Mo. 442.]

An order for a sale of land to pay the debts of an estate being’ attacked on t-he ground that the personalty was sufficient to discharge the debts, this court said, “It is not competent for the heirs in a collateral proceeding to contest the truth of the facts on which the order of sale was made.” [Wolf v. Robinson, 20 Mo. 459.]

Where an execution was issued irregularly on the transcript of a judgment of a justice of the peace, a sale under it was sustained against a collateral attack, [Gorman v. Stanton, 5 Mo. App. 585.]

The question in hand was discussed rather fully and decided in Freeman v. Thompson, 53 Mo. 183, 192, where an affidavit by the printer of the publication of notice in an attachment action was attacked in a subsequent action by parol evidence to prove that, in truth, the publication had not occurred as stated in the affidavit. This court said the trial court, which had admitted evidence to contradict the affidavit, “with equal propriety could, in the same collateral way, have permitted the judgment itself to be reopened and a review had of the evidence on which it was rendered.”

An administrator cle bonis non of an estate having been appointed, and there being nothing to show the prior administrator had been discharged, it was presumed the administrator de bonis non had been regularly appointed and that a sale by him passed title; the rule against collateral attack being applied to support the order appointing him. [Rowden v. Brown, 91. Mo. 429.]

An appointment of an administrator de bonis non after a prior settlement of an estate is conclusively presumed, in a collateral case, to have been justified. [Howell v. Jump, 140 Mo. 441, 453.] And see, also, on this question, Parsons, Admr., v. Milford, Admr., 67 Ind. 489, 499, and State ex rel. Wiseman v. Wheeler, 127 Ind. 451.

The rule against collateral impeachment is applicable to all orders of the court of competent jurisdiction, as well as to its final judgment. [23 Cyc. 1056.]

The circuit court had jurisdiction of the parties and the. subject-matter in the McQueen case and power to order the temporary injunction and to continue it in force pending the appeal. We hold those orders are not open to collateral impeachment by the parties to the action, or persons represented by or in privity with them, as having’; been collusivelv procured.

II. Tn answer to the second question we have propounded, we say the replication in this case is a collateral attack on the validity of the orders for the temporary-injunction; an attack based, on the allegation that they were orders procured by VanDeusen to retain himself. The petition in the present case is said by the Court of Appeals to have been filed for the purpose of having the tax bills against the relator’s lot cancelled, and the apparent lien they created removed; and on the ground, as stated by the Court of Appeals, “that the work was not completed within the time prescribed by the ordinance,” which was cause to remove the lien unless the delay was due to the injunction. [Construction Co. v. [Field, 157 Mo. App. 577; Hund v. Rackliffe, 192 Mo. 312.] The answer set up the injunction as a defense, and the reply charged it was procured ‘ ‘ at the instance and through the instrumentality of said contractor, and -for the purpose of stopping said work, and said injunc-. tion so procured does not operate to extend the time.” It is apparent the validity of the orders relating to the injunction are called into question by the. reply. But this attack is not made in a direct proceeding* to have the orders vacated, to which, proceeding the parties to the suit in which they were made would be necessary- parties. Neither the plaintiff in the McQueen case nor the city of St. Joseph, which was one of the defendants, is a party to this case. The city was one of the parties, was bound by the orders of the circuit court and has acted on the faith of them in accepting the work and issuing tax bills to pay for it. The city would be entitled to a hearing in any shit to vacate the orders; and if they were procured by VanDeusen, and the city, instead of conniving at his act, was ignorant of it, a remedy by a suit to annul the orders and thereby prevent VanD'eusen from deriving an extension of time from them, would have been available to the city; and that remedy is available to any property owner, including’ Williams, whose rights are affected by the extension. This action was not brought for the purpose of impeaching those orders, but for the different purpose of removing the lien of the tax bills from the relator’s lot. A collateral attack is an attempt to impeach a judgment, whether interlocutory or final, in a proceeding not instituted for the express purpose of annulling the judgment. [Lieber v. Lieber, 239 Mo. 1, 55; 17 Am. & Eng. Law (2 Ed.), p. 848.] The impeachment of the injunction orders may be necessary in order for the plaintiff to obtain the relief he asks, but nevertheless, the present attack on them is collateral, and not direct. [23 Cyc. pp. 1062, 1063, and cases cited in note 67.]

III. We find it is unnecessary to answer the first part of the third question asked: namely, whether the owners of lots against which tax bills were issued were represented by the city in the McQueen case, and are bound by the proceedings therein as being in privity with the city. In our opinion the status of the plaintiff Williams as owner by a subsequently acquired title, of the lot sought to be relieved from the assessment, controls the decision of this, case. Conceding for the purpose of the decision that Williams was a stranger to the McQueen proceedings, as judgments operate usually only among the parties to the actions wherein they are given and those in privity with the parties, the inquiry is: Can Williams as a stranger impeach collaterally those proceedings in view of the fact that he acquired his title after final judgment had been given therein, the work'"finished and the tax bills issued?

It may be allowed that the owner of a lot against which a special tax has been levied, who acquired title after the levy, has as much right to sue to establish, the invalidity of the tax as he would have had if he had been the owner at the time of the levy. [Hamilton, Special Assessments, sec. 744, p. 737.] This is because the tax lien follows the property into the hands of any subsequent owner, and is not a personal charge against the person who was the owner at the time the tax was laid. [Lasbury v. McCague, 56 Neb. 220, 228; State, Evans v. Mayor and Common Council of Jersey City, 35 N. J. L. 381.] It was so held in the cited Nebraska case where a lot had been assessed for the cost of abating a nuisance on it, which nuisance had been created by 'the city itself; wherefore, the cost of abating it could not be taxed against the property, and a subsequent purchaser sued to declare invalid the special tax.

But in the present case the plaintiff asks that the special tax against his lot be set aside for a reason that results in calling into question collaterally the validity of the proceedings in a prior suit of which the court had jurisdiction. If there had been no injunction issued in the McQueen case against VanDeusen and the city of St. Joseph, and, nevertheless, Van Deusen had failed to complete the improvement in time, Williams might well maintain this action to cancel the tax bills for the delay; but in doing so, as matters stand, he must either first have the orders for the injunction annulled in a direct proceeding or be entitled to attack them in this proceeding. The case is complicated by those orders, and therein differs from the common suit to cancel assessments.

One cannot doubt that Williams acquired his lot with full knowledge of the tax lien and of all that had happened in the McQueen proceeding, including the procurement of the temporary injunction, since he began this suit the day after his deed was delivered to him. Perhaps his knowledge of those facts is not material, the essential fact being that he took title after the final disposition of the McQueen case. VanDeusen had completed his contract within the time limited, allowing for the interruption due to the injunction issued in the McQueen case, which was valid on the face of the proceedings, and could only be shown to be invalid by evidence aliunde. Williams had no right or interest which was impaired by the orders relating to the injunction at the time they were made, and on principle and according to the few authorities we have found; he is not in a position to impeach the orders. There are decisions directly in point that a person who was a stranger to a judgment, but who acquired subsequently the title asserted to be affected by it, cannot assail the judgment collaterally. [Hogg v. Link, 90 Ind. 346; Johns v. Partee, 55 Iowa, 665.] Why should he be permitted to do so when he was in no way damaged by the adjudication? A person whose interest in property is impaired or questioned by legal proceedings at the time they are taken, and who could have been made a party to them and afforded the opportunity to defend his rights, may well be allowed to impeach the proceedings, without first attacking them directly, when it is sought to enforce them against him or his property. Whereas, a person who acquires later; especially if he knew of the proceedings, may be required to submit to their effect until he has annulled them in a suit, or other appropriate remedy instituted by him for that purpose. The general doctrine is that a conveyance in fraud of creditors cannot be set aside at the suit of a subsequent purchaser of the property, unless the intention to defraud him was entertained when the conveyance was made. This rule has been applied to judgments as well as to conveyances. [2 Freeman, Judgments; sec. 336, p. 610.] The proposition was affirmed by this court in Abington v. Townsend, 197 S. W. 253, 257. In that case the plaintiff purchased the property in controversy at a partition sale made subsequent to a prior sale, under which the defendant claimed title. It appears one of the parties interested in the land had filed a suit to set aside the judgment in partition and the sale thereunder. The court set aside the first sale, the order approving it and the deed, but permitted the interlocutory decree for partition to stand. There was a second sale under the decree at which Abington purchased. He sought to have annulled the title of the grantee, Townsend, who claimed as stated, under the first sale. It appears Townsend was not made a party to the suit to set aside the first sale; yet, nevertheless, in his suit to quiet title Abington undertook to impeach the order approving the sale under which Townsend claimed, by evidence to show the approval of it was procured by fraud. This court held that if Abington was not in privity with the parties to the suit wherein the first sale was ordered, he was precluded from a collateral attack on the proceedings in that case even if he were a stranger,, because he obtained his title subsequently to the judgment. While conceding the rule was that a stranger to judicial proceedings might impeach them collaterally, the court held an exception to this rule existed if the stranger acquired his interest later, so that it was not affected by the judgment at the time of its rendition.

The decision of the Kansas City Court of Appeals sustaining the Williams suit is in conflict with said prior decision of this court. Wherefore, the record of said Court of Appeals will be quashed.

It is so ordered.

All concur.


source: Caselaw Access Project

author: GRAVES, J. WOODSON, J.

license: Public Domain

text:
    WILLIAM H. STEINBRENNER et al. v. CITY OF ST. JOSEPH et al., Appellants.
    In Banc,
    December 13, 1920.
    1. ORDINANCE: To Increase Indebtedness: When Effective: Exception to Referendum Statute. An ordinance providing for the submission to the legal voters of a proposition to issue improvement bonds is not affected by the statute (Sec. 8859, R. S. 1909) declaring that no ordinance passed by the council, “except an ordinance for the immediate preservation of the public peace, health, or safety,” shall go into effect “before ten days from the time of its final passage.” Such an ordinance does not purport to be complete, but by its terms provides for its reference to the legal voters, and therefore said referendum statute has no application to it.
    2. -: -: -—: Published Notice of Election. The beginning within ten days after the passage of an ordinance providing for the increase of city indebtedness, of the publication of notice of an election at which the legal voters can approve or reject such proposed increase, is not a publication before the ordinane takes effect; for the statute providing that no ordinance, except those for the immediate preservation of the public peace, health and safety shall take effect until ten days after its final passage, has no application to such an ordinance. As soon as the ordinance is approved by the mayor, the publication of the notice may be begun, and all other acts which the law requires to be done, including a presentation of the ordinance to the circuit judge, may be proceeded with, in the order provided by the ap-

      HelcL, by WOODSON, J., that, assuming that the statute applies and that the ordinance did not take effect for ten days after it was approved by the mayor, the publication of a notice three days before the ordinance became effective and for twenty-five days thereafter, was not a publication for four • consecutive weeks.
    3. CITY INDEBTEDNESS: Assessment. The words “assessment” and “last assessment” used in that part of the Constitution which says that a city’s indebtedness shall not exceed five per cent of the value of taxable property in the city as shown “by the assessment next before the last assessment for state and county purposes, previous to the incurring of such indebtedness,” means a completed assessment; that is, one which has passed through all the state agencies which have to do with property assessments.
    4. -: -: Date of Incurring. The words “previous to the incurring of such indebtedness,” used in the constitutional provi- - sion that city indebtedness shall not “be allowed to be incurred to an amount including existing indebtedness in the aggregate exceeding five per centum on the value of the taxable property therein, 'to be ascertained by the assessment next before the last assessment for state and county purposes, previous to the incurring of such indebtedness,” has reference to the property values at the time the officials are acting, and not to what may be the property values at the time of the actual sale and disposition of the bonds. The statutes make plain the debt-incurring period, or as of what date the property values and existing debts are to be ascertained, and agree with the rule announced in State ex rel. City of Dexter v. Gordon, 251 Mo. 303, that it is “the time when the constituted authority of a subdivision is required to ascertain whether the proposed indebtedness exceeds the constitutional limit, and not to the time when such debt, if authorized, will become obligatory.”
    5. -: •-■: -: Ordinance Enacted in 1919: Must Be Based on Assessment of 1916. To ascertain whether the proposed bond issue, including existing indebtedness, exceeded the maximum limit of five per cent of property values fixed by the Constitution, • where the ordinance authorizing “the incurring of such indebtedness” was enacted in March, 1919, and the proposition was submitted to popular vote at an election held in May, 1919, the assessed valuation for the year 1916 should be used as the basis for determining the amount of new indebtedness which could have been incurred. The Constitution requires “the assessment next before the last assessment for state and county purposes” to be used as the basis for ascertaining the assessed valuation of properties in the city; and as the assessment begun in June, 1918, was not completed until September, 1919, that assessment can not be considered at all where the ordinance was enacted in March and approved in May, 1919, but the one begun in June, 1917, was the first completed assessment that can be considered and the “last” assessment “before” that assessment was the one begun in June, 1916.
    6. -: Excessive: Merchants’ Assessments. Where the total valuation of property in the city, by the assessments of 1916, was $42,473,790, and the existing and proposed indebtedness amounted to $2,434,700.21, making the indebtedness $311,010.71 in excess of five per cent of the total assessed valuation, the bonds authorized by the ordinance on March 31, 1919, and approved at an election held on May 27, 1919, were void; and the result being the same whether the merchants’ and manufacturers’ assessments for 1919 or for 1918 or for 1917 rather than those for 1916 be taken as the basis of the calculations, it becomes unnecessary to discuss what assessment of merchants and manufacturers should be considered.
    Appeal from Buchanan Circuit Court.—Hon. Lawrence A. Vories, Judge.
    Affirmed.

      L. V. Stigall, City Counselor, C. L. Faust, Strop & Mayer, and Culver & Phillip for appellants.
    (1) The publication of notice of the special election was sufficient. Sec. 8672, R. S. 1909; State ex rel. Webber v. Tucker, 32 Mo. App. 620; Young v. Downey, 150 Mo. 317; Standefer v. Dykeman, 151 Mo. App. 600. (2) In ascertaining the city’s indebtedness the amount in the sinking’ fund levied and collected for the payment of the principal of outstanding bonds, and applicable to no other purpose, should he deducted. 5 McQuillin on Munic. Corp. (Ed. 1911) p. 475; Stone v. Chicago, 207 111. 492; Kelley v. Minneapolis, 63 Minn. 125; Schuldice v.'Pittsburg, 234 Pa. St. 90; Euclaire v. Water Co., 137 Wis. 517; Williamson v. Aldrich, 21 S. D. 13; Leoy v. McClellan, 196 N. Y. 178; Bank v. Grace, 102 N. Y7 313; State v. Hopkins, 14 Wash. 59, 44 Pac. 134; Rice v. City of Milwaukee, 76 N. W. 341; Johnson v. County Commrs., 7 Okla. 686, 56- Pac. 701; Dively v. City of Cedar Falls, 27 Iowa, 227. (3) The trial court erred in holding that the city’s indebtedness of the date of the enactment of the ordinances or the date of the election, rather than the date of the issuance and sale of the bonds, was controlling. Mo. Const., art. 10, sec. 12; State ex rel. v. Gordon, 251 Mo. 303; Buchanan v. Litchfield, 102 U. S. 278; Electric Co. v. City of Newton, 42 Fed. 728; Dudley v. Board of Cómmrs., 80 Fed. 677; Board of Commrs. v. Sutliff, 97 Fed. 281; Corning v. Board of Commrs., 102 Fed. 58, 180 U. S. 710; 1 Dillon, Municipal Corporations (5 Ed.), p. 403, sec. 207; Black v. Early, 208 Mo. 312; Beard v. City of Hopkinsville, 44 Am. St. 241, note; O’Rear v. Sartain, 193 Ala. 275; Redding v. Esplin Borough., 207 Pa. 248; Goodson v. Dean, 173 Ala. 301; Buxton v. Craig Co., 155 Pac. 215; 15 Corpus Juris, 577; Secs, 11617, 11646, R. S. 1909.

      W. H. Haynes and W. B. Norris for respondents.
    (1) The “last assessment” referred to in the. Constitution means the completed assessment by the State Board of Equalization showing the aggregate assessed valuation of all the properties in the city at the time of the authorization of the issue of the bonds. State ex rel. Blades v. Wabash Railroad, 251 Mo. 134; Culbertson v. City of Fulton, 127 111. 30; State ex rel. Morse v. Conwell, 40 S. C. 26; State ex rel. Vandiver v. Tolley, 37 S. C. 551; City of Guthrie v. Bank, 4 Okla. 194; Germania Saving Bank v. Town of Darlington, 50 S. C. 337. (2) The' assessment to be considered in determining whether the proposed indebtedness exceeds the constitutional limitation is the assessment next before the last completed assessment for state and county purposes, previous to incurring the indebtedness; that is, previous to the time of the popular election to increase the indebtedness. State ex rel. City of Dexter v. Gordon, 251 Mo. 303; Sidney v. City of Marceline, 237 Fed. 168; Prickett v. City of Marceline, 65 Fed. 469; State ex rel. City of Sutton v. Babcock, 24 Neb. 640; McGuire v. City of Philadelphia, 245 Pa. 287; Railroad v. Village of Wilbur, 63 Neb. 624; State v.’ Babcock, 20 Neb. 522; Wilkerson v. Van Orman, 70 Iowa, 230; Lewis v. Bradey, 17 Ida. 251, 104 Pac. 900. (3) The date of issue mentioned in the bonds and the ordinance under the charier of cities of the first class means that upon said date the validity of the bonds is to be determined, and not the date of the actual delivery and sale of them. Secs. 8668, 8669, 8670, 8671, 8672, 8674, 8675, R. S. 1909; Wright v. Irrigation District, 138 Fed. 313; Gage v. McCord, 5 Ark. 227; Moller v.' Galveston, 23 Tex. .Civ. App. 693, 57 S. W. 116. (4) The ordinances providing for the election were passed on the 21st day of April, 191.9. Under the charter of cities of the first class they did not become effective, as ordinances and did not go into effect until ten days after their passage, which, was the 2d day of May, 1919. Sec. 88-59, R. S. 1909; State ex rel. "Wagner v. Summers, 144 N. W. 730; Ex parte Hoffman, 155 Cal. 114; State ex rel. Dawson v. Commission, 92 Kan. 247; Meade v. Dane County,- 1.55 Wis. 632. (5) The words in an act “after the passage and approval” means after the act becomes effective as a law and is in full force and effect as determined by the provisions of the general law. So the words used in Section 8671, “after the passage and approval of such ordinance” the city shall present the same to the judge of the circuit court, should be'construed to mean after the ordinance became effective as a law. State ex rel. Brown v. McIntosh, 205 Mo. 629; Ex parte Lucas, 160 Mo. 218; Harding v! People. 10 Cal. 387; Mills v. State Board, 135 Mich. 525; State ex rel. v. Bemis, 45 Nev. 724.
   GRAVES, J.

Action by certain taxpayers of the City of St. Joseph, to restrain such city.from issuing improvement bonds in the sum of $1,850,000. The petition charges some thirteen reasons for the invalidity of this bond issue. The ones chiefly'urged are (1) the failure, of legal notice, and (2) that such an issue would allow the city to become indebted in excess of the constitutional limitation.

On March 31, 1919, there were introduced five separate ordinances in the, Common Council of the City of St. Joseph, and these were passed by such Council and approved by the Mayor oil the 21st day of April, 1919. These five several ordinances carried the total of $1,850,000 proposed bonded indebtedness. These ordinances fixed the election date at May 27, 1919. On April 14, 1919, the County Court, in anticipation of said election, made an order for a special registration of voters 'for said election, such registration to be held April 29th and 30th, 1919.

On April 28, 1919, the city, pursuant to the provisions of Section 8671, Revised Statutes 1909, presented the ordinances to the Judge of the Circuit Court and obtained from him a certificate to the effect that the total amount of said bonds could be issued without violating the Constitution of the State. The date of the issuance of the bonds was fixed as of July 15, 1919.

The election was held on May 27, 1919, each of the five propositions being voted upon separately. Each carried by an overwhelming vote, so that unless there are fatal defects in the proceedings, or that the proposed issue so increased the indebtedness of the city as to be violative of constitutional provisions, the bonds are valid. Of the objections in the course of the opinion, where the relevant facts can best be outlined.

I. It is urged that the notice of the election was not sufficient. The lower court held that the bonds were void by a general judgment for the plaintiffs. The particular grounds upon which the injunction against the issuance of the bonds was made, are not specified. We are therefore left to grapple with the whole category of objections lodged in the petition, save and except such as have been abandoned here, or as might have been abandoned below as indicated by the course of the trial. The statute which governs the publication of notice in this ease is Section 8672, Revised Statutes 1909, which reads:

“After such certificate the city shall -cause to be published, once each week for four consecutive weeks, in the newspaper at the time doing the city printing, the last insertion to be not more than five days prior to the time for election,,a copy of such ordinance and certificate, with a proclamation, according to law, that an election will be held at the time.appointed in the ordinance for the voters of the city to vote oil the proposition for the issue of bonds, as proposed by the ordinance.”

The following admission was-made of record:

“It is admitted in this case that the ordinances referred to in the petition and introduced in evidence were published on April 29, 1919, May 5, 1919, May 12, 1919, May 19, 1919, and May 26, 1919, in the St. Joseph G azette, the>paper at the time doing’ the official printing for the City of St. Joseph.”

It will be observed, that there were five publications, the last of which was within five days of the election. The statute, supra, only requires four publications, ‘ ‘ one each week for four consecutive weeks.”

The point made is, that under the law the ordinances did not become effective until May 2, 1919, and the city had no power before that date to act in anyway thereunder.

St. Joseph is a city of the first class, of which we will take judicial knowledge. Concerning such cities we have Section 8859, Revised Statutes 1909, which, so far as applicable, reads:

“No ordinance passed by the council, except when otherwise required by the general laws of the State or by the provisions of this article, except an ordinance for the immediate preservation of the public peace, health or safety, which contains a statement of its urgency and is passed by a four-fifths vote of the council, shall go into effect before ten days from the time of its final passage.”

This is' the referendum statute for such cities, and the ordinances before us do not by their terms fall within the excepted classes named in this statute, unless the very face of the ordinances exempt them from this provision. These ordinances do not in the language of the statute, supra, contain “a statement of its urgency/,” although the vote in the council was unanimous, so far as the vote of the five present members, show. By Section 8548, the common council of cities of the first class shall consist of five members, so that there was a unanimous vote on these ordinances, and they might have come within, the excepted classes under Section 8859, supra, had they contained the necessary recitation of “a. statement of its urgency.” This purely on the theory that they were ordinary ordinances, and not ordinances of the character shown by their face.

In our judgment Section 8859 has no reference to ordinances of the character here involved. As said, this is the referendum statute of cities of the first class. Its purpose was to have a reference to the voters upon an. ordinance that would become effective at the date of its passage and approval, and then ten days was allowed for the purpose of the reference. Bui the ordinances before us are mere references to the people of the questions therein involved. They do not purport to be completed ordinances, for they themselves provide for a reference of their terms and the adoption of their terms,* and the questions by them submitted. They are ordinances only in a limited sense. They are really proposed ordinances for the ratification of the voters. When ratified by the voters, they become ordinances. They might be said to fall within that line of ordinances mentioned in said Section 8859, supra, by the clause except when otherwise required hly the general laws of the State,” if perchance this section covered proposed ordinances of this kind at all. We do not think that this section applies at all.

When the mayor signed these proposed ordinances that branch of the legislative power had done all that could be done to make them effective. When the voters ratified them, they became finally effective, barring legislative or constitutional defects. The passage. of such proposed ordinances was but the first step in the general plan to increase the indebtedness of the city. This step was complete upon the approval of the Mayor, and all other steps could then be taken, in accordance with the proposed ordinances, as would be necessary, under the city charter, to complete the ordinances by a vote of the electorate. Under this view of the law there were five valid publications of the notice, and if this he true, all objections as to the notice-fails. Not only do the objections to the notice fail, hut all objections to things done under the proposed ordinances from April 21st, the date of their approval by the Mayor. We say this, because, among other things, it is urged that the city was premature in presenting the ordinance to the Circuit Judge. We rule that the city had the right to act under these ordinances from and after their approval on April 21, 1919.' This makes the first and all five of the publications valid, and the notice was good. We need not, therefore, rule upon the question urged, that the last four publications made a legal notice.

II. What w-e have said in our paragraph one, supra, disposes of most of the rubbish in the case, and leaves for consideration but one or two vital questions. With our ruling all the alleged premature acts of the city under these ordinances disappear from the case. There is left at least the vital matter as to whether or not these bonds were beyond the constitutional limitations placed upon the city in the matter of incurring debts. This limitation is fixed, by Section 12 of Article X of the Constitution, which said section says:

“No county, city, town, township, school district or other political corporation or subdivision of -the State shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose; nor in cases requiring such assent shall cw%y indebtedness be allowed to be incurred to an amount including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the assessment next before the last assessment for State and county purposes, previous to the incurring of such indebtedness.”

Counsel do not disagree upon the question of there being this five-per-cent limitation upon the City of St. Joseph. They do disagree as to whether or not this total ^ond issue, when added to previous indebtedness in fact exceeds this constitutional limit. And right here come in some questions of importance, first of which is the assessment to be considered as the basis for the calculation. The Constitution says that it must be not in excess of five per centum on the property in such city as shown “by the assessment next before the last assessment for state and county purposes, previous to the incurring of the indebtedness. ’ ’ And herein conies the question as to which is the proper assessment to be' taken as the basis for the calculation.

The term “assessment” and “last assessment” have been construed by Division Two of this court, in the case of State ex. rel. v. Wabash Railroad, 251 Mo. l. c. 142. It is there ruled that it must be a completed assessment, i. e. one which has passed through all the state agencies which have to do with property assessments. This is a reasonable and well founded rule, and to it we add our approval. However, our approval adds nothing to the rule, because in State ex. rel. v. Gordon, 251 Mo. 303, a case In Banc, both opinions recognized the fact that the word “assessment” as used in the Constitution meant a completed assessment. The difference of opinion in the Gordon Case, supra, grew out of another matter, which will become material later. Under our rule the assessments to be considered must be completed assessments.

III. A further important step in reaching the conclusion here, is the date when the municipality is “incurring” the debt within the meaning of that term as used in the Constitution. Upon this question this court divided in State ex. rel. City of Dexter v. Gordon, 251 Mo. 303, supra. The majority opinion fixed this rule:

“The closing clause of the constitutional limitation under discussion, expressed in the words ‘previous to the incurring of such indebtedness’ has reference to tlie time when the constituted authority of a subdivision is required to ascertain whether the proposed indebtedness exceeds the constitutional limit and not to the time when such debt, if authorized, will become obligatory.”

This ruling has since received express sanction in Sidney v. City of Marceline, 237 Fed. 168; and in Lewis v. Brady, 17 Idaho, l. c. 256 et seq., there is some persuasive argument in behalf of the rule. But be this as it may, we do not feel constrained to depart from the rule of the majority in the Gordon case, supra. This is a question upon which there should be a fixed rule, and when once fixed, there should not be radical departures. The public business requires this much.

We should add, however, that the statutes under which these bonds were being issued contemplated the property values at the time the officials were acting, and not what might be the property value at the actual sale and disposition of the bonds. [R. S. 1909, secs. 8668, 8669, 8670, 8671, 8672, 8674 and 8675.]

Among other things these sections require the city officials to present their ordinances, and the facts as to the previous assessments, and the city indebtedness, to the Circuit Judge, and receive from him a certificate to the effect the proposed bond issue, together with the existing indebtedness, will not exceed the debt-incurring power of the city. This and other things in these sections of the statute make it plain as to what should be considered the debt-creating period, and thev agree -with the rule in Gordon’s case, supra.

IV. Under the rules of law just above stated, the assessed valuation for the year 1916 would be the basis to be used in determining the amount of indebtedness 'which could be incurred by the city, at the passage of these ordinances.

We have above noted that the word “assessment” as used in the Constitution means a completed assessment. The assessment which began in June, 1918, was not completed by the State Board of Equalization until September, 1919, so that at the time the city was acting in this bond matter, this was no assessment ,sat all, or to be used for any purpose in this case. In May, 1919, the first preceding completed assessment was that of 1917, or the one begun in June, 1917. “The assessment next before the last assesment,” using the language of the Constitution, could be none other than the assessment begun in June, 1916, and completed sometime in 1917. With this as the base how stands the case?

Counsel for appellant tabulate the taxable property for the years 1916 and 1917, as follows:

“1916: Merchants and Manufacturers ........$ 3,843,920.00
“ ” Other property ...................... 38,629,870.00
“1917: Merchants and manufacturers ...... 4,790,000.00
“ ” Other property........................ 43,630,530.00”

Counsel likewise give figures for 1918, and the merchants’ and manufacturers’ tax for 1919. These will lend but little light.

Counsel for plaintiff have carefully compiled from the evidence two enlightening tables. They use two dates, May 27th and July 15, 1919. These are the dates when the ordinances were ratified, and when it was provided in the ordinances to issue the bonds. The two tables follow:

“Financial Statement of the City of St. Joseph as of Date of May 27, 1919.
“Assessments, 1916:
“Personal Property .................. $4,740,080.00
“Real Estate ........................ 29,687,520.00
“Railways and Bridges .............. 2,070,200.00
“Banks ................... 1,099,130.00
“Merchants...... 3,392,970.00
“Manufacturers.................... 450,950.00
“Franchises . . ....................... 732,550.00
“Telegraphs and Telephones .......... 300,390.00
“Total Assessed Valuation ........ $42,473,790.00
“Indebtedness:
“Bonded Debt ............ $722,500.00
“Less Sinking Fund ...... 197,412.07 $525,137.93
“Judgments:
“Outstanding ...................... $ 65,712.28
“Less Appeals Taken .............. $ 5,150.00 59,562.28
“Bonds Recently Voted by the People of St. Joseph ..................$1,850,000.00
“Total Indebtedness ................ $2,434,700.21
“Total Present and Proposed
“Indebtedness ...................... $2,434,700.21
“5% of Total Assessed Valuation .... 2,123,689.50.
“Excess Ov.er 5% ..............'... $ 311,010.71”

The total indebtedness of the city as of July 15, 1919, is shown by the following table:

“Financial Statement of the City of St. Joseph as of July 15, 1919.
“Assessments, 1916:
'“Personal Property .................... $4,740,080.00
“Real Estate ........................... 29,687,520.00
‘“Railways and Bridges ................ 2,070,200.00
“Banks .......:....................... 1,099,130.00
“Merchants ....................•........ 3,392,970,00
“Manufacturers .................... 450,950,0:0
“Franchises ........................... $732,-550.00
“Telegraph and Telephones ............ 300,390.00
“Total Assessed Valuation ............ $42,473,790.00
“Indebtedness:
“Bonded Debt .............. $722,500.00
“Less Bonds Redeemed ...... 10,300.00
$712,250.00
“Less Sinking Fund ......' $187,112.07 $ 525,137.93
“Judgments Outstanding .. $ 80,503.28
“Less Appeals Taken ...... $ 12,650.00 $ 67,853.28
“Bonds Recently Voted by the People of St. Joseph .......... $1,850,000.00
“Total Indebtedness .................. $2,442,991.21
“Total Present and Proposed
“Indebtedness ......................... $2,442,991.21
“5% of Total Assessed Valuation ...... 2,123,689.50
“Excess over 5% ...............-......... $319,301.71’

These figures do not permit speculation as to what should be the result of the case before us. Counsel for appellant urge that the merchants’ and manufacturers’ assessment for 1919 should be the one considered rather than the one for 1926 or 1917, or even 1918. Having taken the assessment of 1916 as the basis so far as other property is concerned, it would make no difference- in result whether you used either of the other merchants and manufacturers assessments. The largest was in 1919, when it was $7,182,460,- as against $3,843,920 in 1916. This would make an increase of $3,338,540 over 1916. If we take three per cent of this increase, we would have the debt-incurring power only increased by $166,927. Taking this from the excesses .over 5 per cent in the tables above, it leaves large excesses on both May 27th and ‘July 15th. We have used the year 1919 as to the merchants and manufacturers assessments, because it is the largest, and not because we meant to say that it was the proper assessment to •be used. Even with its use the bonds are void, as being in excess of the debt-creating- power of the city. Counsel for appellant do not claim that there is any way for a reversal of the instant judgment if the assessment of 1916 is made the basis. In view of the situation it becomes unnecessary to discuss (1) what assessment of merchants and manufacturers should be considered, or (2) whether the sinking funds in the hands of the city should be taken from the debts'. This, because neither of the previous merchants’ and manunfacturers ’ assessments, when considered with the other property assessment of 1916, will change the result, and the tables above allow credit for money in sinking funds. It follows that the judgment nisi should be affirmed. It is so ordered.

All concur, Woodson, J., in separate opinion.

WOODSON, J.

(concurring).—This was a suit instituted in the Circuit Court of Buchanan County by plaintiffs, taxpayers, and on behalf of themselves and all others similarly situated, and against the defendants, to enjoin the City of St. Joseph, its Mayor and Comptroller, to restrain them, from issuing $1,850,000 of improvement bonds, purporting to have been authorized at a special election held for that purpose, on the grounds that the proceedings preliminary to the holding of the election, as well as the election itself, were invalid, and that the amount of the existing indebtedness of the city, added to the amount of said proposed bonds, exceeded the constitutional limit of indebtedness the city could incur.

A trial was had which resulted in findings for, and a decree for, the plaintiffs, enjoining the issuance of the bonds as prayed for in the petition, and the defendants duly appealed the cause to this court. The following facts are admitted:

“The Common Council of the City of St. Joseph enacted, five special ordinances which were approved on April 21, 19.19, each of which ordinances made provision for an issue of bonds for public improvement in said city, and ordered the submission of the ordinances to the qualified voters of the city for their approval or rejection at an election called for that purpose on the' 27th day of May, 1919.
“Special ordinance No. 8143 was for $750,000 to be used in constructing public sewers.
“Special ordinance No. 8144 was for $500,000 to improve, extend and equip the city electric light plant.
“Special ordinance No. 8145 was for $50,000 to purchase motor equipment for the city fire department.
“Special ordinance No. 8146 was for $450,000 to acquire a site and erect, construct and equip a city hall.
“Special ordinance No. 8147 was for $100,000 to acquire a site and erect, construct and equip a city hospital for the treatment of contagious and communicable diseases.
“The election was held and the vote on the propositions ranged from a majority of 4% to 1 to nearly 10 to 1 in favor of the bonds, as follows:
“ Special ordinance No. 8143-for, 6061; against, 639.
“Special ordinance No. 8144-for, 5550; against, 1202.
“ Special ordinance No. 8145-for, 6063; against, 632.
“Special ordinance No. 8146—for, 5428; against, 1293.
“ Special ordinance No. 8147-for, 5836; against, 783.
“The petition assails the validity of the bonds on grounds that are separately stated and numbered from 1 to 13, only two of which were urged upon or presented to the trial court-, and as we view the case, they are the only issues that can in reason be called debatable. They are:
■ “1. Did the city exceed the limit of its debt creating power?
“2. Was the notice of election published as required by law?
“The facts are:
“The assessed valuations for state and county purposes of all property in the city for the years in question are:
“1916
“ Merchants and manufacturers ..........$ 3,843,920;
Other property ......................... 38,629,870..
“1917
“Merchants and manufacturers ..........$ 4,790,000;
Other property ........................ 43,630,520.
“1918
“ Merchants and manufacturers .........$ 6,635,570;
“ Other property ........................ 53,457,170.
“1919
“ Merchants and manufacturers ..........$ 7,182,460.
“The assessment of merchandise, raw material, etc., known as 'the merchants’ and manufacturers’ tax,’ is made between the first Mondays of March and June in each year, is equalized by the County Board of Equalization on the first Monday in September following (the State Board of Equalization having no jurisdiction thereover), and the tax on such assessment is payable on or before November 1st, following the assessment (Secs. 11620 and 11646, R. S. 1909). There is therefore a completed assessment of merchandise, raw material, etc., in each year—the year it is taken—while the assessment of other property is not completed nnti] the year following that in which it is made.
“At the time of the trial of this case the merchants’ and manufacturers’ assessment for 1919 had been taken, equalized, and the tax had been payable for sometime— in other words, it was completed and the assessment of such property for 1918 was the assessment next before the last.”

And it is contended by counsel for plaintiffs that: “The last completed assessment of other property was that of 19l8, so that the assessment of such property for 1917 was the assessment next before the last. The aggregate of these gives the last complete assessment but one of all property in the city for state and county purposes, the total being $50,266,090, five per centum of which is $2,513,304.50.”

The evidence showed that:

“On the day of the trial of this case, viz., October 15, 1919, the bonded indebtedness of the city was $622,250, and other indebtedness, including judgments both final and pending on appeal was $6.5',712.28, a total of $687,962.28. This added to the proposed bond issue of $1,850,000, would make a total of $2,537,962.28, or $24,657.78 in excess of five per centum of the assessed valuation which, as stated above, is $2,513,304.50. However, on the same day the amount in the sinking fund of the. city applicable to the payment of the principal of the bonded indebtedness, and to no other purpose, was $185,727.02, and if this is properly deductible in determining the actual indebtedness it would be $161,069.24 less than five per centum of the assessed valuation.”
The evidence also showed that:'
“The proclamation of the Mayor calling the election was published in the St. Joseph Gazette, the official paper at the time, on April 29. May 5, May 12 and May 19 and thereafter daily to May 26 inclusive and the election was held May 27, 1919. There were therefore five weekly publications prior to, and the last within five days of, the election, covering a period of twenty-eight days, excluding the first day of publication and including the day of election.”

Upon this showing counsel for the defendants contend that the publication of the notice of the special election was sufficient, and submits the following suggestions in support thereof:

“Notice of the special election was published as required by law.
“The publication required is: ‘The city shall cause to be published, once each week for four consecutive weeks, in the newspaper at the time doing the city printing, the last insertion to be not more than five days prior to the time for election, a copy of such ordinance,’ etc. [Sec. 8672, R. S. 1909.]
“The election was called for May 27, 1919. The proclamation was published, in the official paper (as well as in the News Press, the other daily newspaper), on April 29, May 5, May 12, and daily from May 19 to May 26, inclusive. The publication was therefore for four weeks, and excluding April 29, the first day of publication, and including May 27, the day of election, for twenty-eight days, for it covers one day in April and twenty-seven days in May, and the last publication, being on May 26, and the election on May 27, was ‘not more than five days prior to the time for election.’ This under the above statute and the decisions, is a full compliance with the requirements of the statute.”

Upon the other hand counsel for the plaintiffs contend:

“That none of the preliminary steps required by the law were taken by city prior to holding the election; that the ordinances providing for the election were invalid; that city had no power under its charter to conduct the election, and that the aggregate amount of the proposed bonds added to the existing indebtedness of the city at the time of the institution of the suit and at the time of the election and on the 15th day of July, was in excess of five per cent of the assessed valuation of the property in the city as shown by the assessment for state and county purposes, and that the proposed- bonds to be negotiated would be issued in violation of Section 12, Article 10, of the Constitution of the State of Missouri.
“On the 2nd day of August, 1919, the defendants filed their answer, and thereafter, on the 15th day of October, the defendant refiled saicl answer, in which it was admitted that the defendants proposed to and were about to and would, unless restrained by the orders of -the court, negotiate said bonds as authorized by said ordinances and the election held in pursuance thereof.
“The ordinances providing for the election and the issuing of the bonds were introduced in the Common Council of the City of St. Joseph on March 31,1919, and on the 21st day of April, 1919, and ordinances were passed by the Common Council and approved by the Mayor on said date.
“On April 28, 1919, the City of St. Joseph, in pursuance of Section 8671, Revised Statutes 1909, presented the ordinances to the Judge of the Circuit Court in St. Joseph and obtained a certificate from him, as required by said section, of the amount of the city’s indebtedness existing at said time and that the indebtedness might be as near as he could calculate at the date of the issue of the bonds therein provided, namely, July 15, 1919, and what was the value of all the taxable property in the city ascertained by the assessment next before the last assessment for the state and county purposes, and that in said certificate, it was stated by said judge in pursuance of the provision of said section that he was satisfied that the total amount of the bonds proposed to be issued by said ordinances could be issued without violating the Constitution of the State of Missouri, which said certificates were attached to said ordinances, as provided by said section.
“Thereafter the city caused to be published in the newspaper doing the city printing a copy of the said ordinances, a copy of said certificates of the judge, and a proclamation of the Mayor, as required by Section 8672, Revised Statutes 1909, the first insertion being made on April 29, 1919, and followed by insertions on May 5, 1919, May 12, 1919, May 19, 1919, May 26, 1919. By virtue of Section 8859, Revised Statutes 1909, no ordinance passed by the council shall go into effect before ten days from the time of its final passage; the ordinance having been passed and approved by the Mayor on the 2.1st day of April, 1919, did not become effective as a law for ten days thereafter, which was the 2nd day of May, 1919. It will therefore be noticed that every preliminary step required by the law to be performed by the city before the holding of the election was taken by the city prior to May 2, 1919, the- day upon which the ordinances became effective.
“The certificate obtained from the judge was obtained prior to the ordinances going into effect and the publication of the ordinances; the certificate of the judge and the proclamation of the Mayor, published on April 29, were published prior to the date of the ordinances becoming effective, and the publication date of April 29 should not be counted in the number of insertions required by the statute.
“Section 8672 requires that the publication shall be published once each week for four consecutive weeks, the last insertion to be not more' than five days prior to the time for holding the election. The ordinances becoming effective on May 2, which was twenty-five days prior to the election, the election being held on May 27, were not and could not be published for four consecutive weeks, but were published for only twenty-five days.”

After a careful examination of the record in this case we are perfectly satisfied that the notice of the special election was void for -the reason that it was not published for four weeks—twenty-eight days—as required by Section 8672, Revised Statutes 1909, after the ordinance went into effect.- The ordinance became effective May 2, 1919, and the election was held on May 27, 1919, three days less than the time reqaired by the statute. The record further shows that:

“The valuation of the taxable property in the City of St. Joseph, as ascertained by the assessment next before the last completed assessment for • state and county purposes, was the assessment made in the year 1916. The assessment for 1918 was not completed until after October 2, 1919. It was admitted at the trial that the State Board of Equalization did not complete the equalization of the assessment of railroads, bridges, telephones and telegraph properties-in the City of St. Joseph for the year 191.8 until the 2nd day of October, 1919, and that at the time of the trial on the 15th day of October, 1919, the county clerk was completing and extending the tax books for the taxes assessed for the year 1.918 in pursuance of the equalization by the State Board of Equalization for the assessment of the year 1918. So on May 27, the date upon which the election was held, on April 28, the time at which the certificate from the Circuit Judge was obtained, and on April 2'9„ the beginning of the first insertion of the publication as required by the statute, and on July 15, 1919, the date of the bonds as fixed by the ordinance and the date upon which, by virtue of Section 8674, Revised Statutes 1909, the second certificate is required by the statute to be obtained from the judge before the bonds can be sold, the assessment for 1.918 was not completed. In the language of the Constitution the last completed assessment was the assessment for the year 1917, and the assessment next before that assessment was the assessment of the year 1916, which is the assessment used by the lower court at the trial. It is admitted in this case by the evidence and conceded by appellants that the total valuation of all taxable property in the City of St. Joseph as ascertained by the assessment for tbe year 1916 was $42,473,790, and that on May 27, 1919, the total indebtedness of tbe city, giving credit to tbe city on its bonded indebtedness for tbe sinking fund then existing and also tbe outstanding judgments, and not including judgments appealed from, together with the amount of the proposed bonds, was the total sum of $2,434,700.21 and that the proposed bonds .exceeded the constitutional limitation in the sum of $311,010.71. The following table shows in detail the foregoing statement. ’ ’

The Financial Statement of the City of St. Joseph as of Date of May 27, 1919 was:

Assessments, 1916:
Personal Property .........................$ 4,740,080.00
Real Estate ............................... 29,687,520.00
Railways and Bridges ..................... 2,070,200.00
Banks .................................... 1,099,130.00
Merchants ................................ 8,392,970.00
Manufactures .......................•...... 450,950.00
Franchises ................................ 732,550.00
Telegraphs and Telephones ................ 300,390.00
Total Assessed Valuation ..............$42,473,790.00
Indebtedness:
Bonded Debt ..................$722,500.00
Less Sinking Fund ............ 197,412.07 $525,137.93
Judgments Outstanding .........$65,712.28
Less Appeals Taken ............ 6,150.00 59,562.28
Bonds Recently Voted by the People of St. Joseph ......................$1,850,000.00
Total Indebtedness .................$2,434,700.2Í
Total Present and Proposed Indebtedness... .$2,434,700.21
5% of Total Assessed Valuation.............. 2,123,699,50
Excess Over 5% ....................$ 311,010.71

The total indebtedness of the City as of July 15, 1919, is shown by the following table :

Financial Statement of the City of St. Joseph as of July 15, 1919.
Assessment, 1916:
Personal Property .........................$ 4,740,080.00
Real Estate ............................... 29,687,520.00
Railways and Bridges ....................$ 2,070,200.00
Banks .................................... 1,099,130.00
Merchants ..................'.............. 3,392,970.00
Manufacturers ............................ 450,950.00
Franchises .............................. 732,550.00
Telegraphs and Telephones ................. 300,390.00
Total Assessed Valuation .............$42,473,790.00
Indebtedness:
Bonded Debt $722,550.00
Less Bonds Redeemed .......... 10,300.00'
$712,250.00
Less Sinking Fund ............$187,112.07 $525,137.93
Judgments Outstanding ........$ 80,503.28
Less Appeals Taken ............ 12,050.00 67,853.28
Bonds Recently Voted by the People of St. Joseph .....................$ 1,850,000.00
Total Indebtedness .................$2,442,991.21
¡52,442,991.21 Total Present and Proposed Indebtedness..
2,123,689.50 5% of Total Assessed Valuation ...........
Excess over 5% $ 319,301.71

Counsel for plaintiffs further contend that:

“It is therefore apparent that the lower court was correct in making the injunction perpetual in this case, as the total amount of the bonds that the city was about to sell exceeded the constitutional provision on July 15 in the sum of $319,301.71, and on May 27, 1919, the bonds exceeded the constitutional provision in the sum of $211,010.71.
“If the assessment for 1917 be taken as the controlling assessment, as contended for by appellant, the proposed issue of bonds under the 1917 assessment is beyond the constitutional limit. The total assessed valuation of all properties in the City of St. Joseph as shown by the assessment of 1917 was $48,420,520, made up of the following items: All property subject to taxation, exclusive of merchants’ and manufacturers’ assessments, was the sum of $43,630,520; merchants’ and manufacturers’ assessment, $4,790,000; total $48,-420,520. On May 27, 1919, the bonded indebtedness was $722,550, and giving credit to the city for its sink-rag fund of that date, which was $197,412,07, and deducting the sinking fund from the bonded indebtedness, leaves a balance of $525,137.93, representing the bonded indebtedness of the city. On -said date the outstanding judgments were $65,712.28; deducting, those judgments which had been appealed at the time, which amount to- $6,150, the balance is $59,562.28; adding to these amounts the proposed bond issue of $1,850,000 makes a total indebtedness of the City of St. Joseph on the 27th day of May, 1919, of $2,434,700.21. Five per cent of the assessed valuation is $2,421,026. The difference between the total indebtedness and the five per cent of* the assessed valuation makes the proposed bond issue in excess of the constitutional limitation in the sum of $13,674.21
“ The total indebtedness of the City of St. Joseph on July 15, 1919, was as follows:
‘“Amount of outstanding bonds, $722,550; deducting amount of bonds redeemed of $10,300 from the above mentioned amount, leaves a balance of $712,250; giving credit to the city of the sinking fund of that, date, which was $187,112.07, and deducting from said amount said sinking fund, leaves a balance of outstanding bonds $525,137.93. The outstanding judgments were $80,-503.28; $12,650 of said amount was appealed, leaving a balance of outstanding final judgments against the city of $67,853.28; adding to these items the proposed bonded indebtedness of $1.,850,000, we have a balance of $2,442,991.21. Five per cent of the total assessed valuation is $2,421,026. The balance shows that the proposed bond issue as of the date of July 15, 1919, was in excess of the constitutional limitation the sum of $21,-956.21. So it would seem that whether the assessment of 1916 or the assessment of 1917 be taken as the basis of valuation, the proposed issue of bonds exceeds the constitutional limits.”

No disinterested person can read this record without coming to the conclusion that the indebtedness of the city at the time of the proceedings authorizing the issuance of the bonds here in controversy, were had, added to the amount of the bonds proposed to be issued, would exceed, five per cent of the aggregate assessed value of all the property assessed in the city, as shown by the last completed assessment made by the State Board of Equalization, at the time of the authorization of the issuance of the bonds, which, as previously shown, was in the year 1916—the excess of those two indebtednesses at that time was $319,301.71 over the five per cent authorized by the Constitution, as previously shown, and should we take the year 1917 as the last completed assessment as being the proper year, still the existing indebtedness added to amount of the bonds proposed to be issued, would exceed the five per cent of the assessed valuation for that year by $21,965.21.

For the reasons stated we are of the opinion that the circuit court properly enjoined the defendants from issuing and selling the bonds. [State ex rel. Blades v. Wabash Railroad Co., 251 Mo. 134.]

Finding no error in the record, the judgment of the circuit court should be affirmed.