source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    THE STATE ex rel. CARLETON DRY GOODS COMPANY, RICE-STIX DRY GOODS COMPANY, HARGADINE-McKITTRICK DRY GOODS COMPANY, and ELY & WALKER DRY GOODS COMPANY, v. LOUIS ALT, License Collector.
    In Banc,
    December 21, 1909.
    1. MANDAMUS: Question of Taxation. The grant of power to the Supreme Court to hear and determine writs of mandamus is without qualification. Its practice, is to decline to issue such writs unless the case is one of more than ordinary importance; hut this is a rule of expediency, and does not affect the court’s jurisdiction. And where the case involves a large amount of state and school revenue, and turns upon the right of a city tax collector to exact a large amount of taxes and to withhold from large wholesale merchants a right to do business in the State until those taxes are paid, a determination of the question is not only of importance to the merchants and the collector, but vitally affects the public, and the writ will issue and be heard.
    =. TAXATION OF MERCHANTS: License: Property Tax. The taxation of merchants and manufacturers, though nominally and in form a license tax, is, in fact, a property tax, and not merely an occupation or license tax.
    3. -: Statements: Revised by City Board: Ad Valorem Tax. The merchants’ statements furnish a basis alike for state, school and municipal taxation. The Board of License Revision, created by ordinance of the city of St. Louis, has no power to revise merchants’ statements made in pursuance to the general laws of the State as a basis for the levy of ad valorem and license taxes, or to increase the valuation placed by them upon goods in their possession between the first Mondays of March and June, nor can the License Collector of said city require the taxes for state, city and school purposes, based upon said increased valuation, to be paid, as a precedent condition to {he issuance to them of a license to do business as merchants in said city.
    4. -: Equalization of Statements: Casus Omissus in Act of 1895: Remedy. Prior to the Act of March 2, 1895, Laws 1895, p. 223, there was no provision in the statutes for revising and increasing the estimate of values placed by merchants and manufacturers upon their stocks of goods. That act gave to boards of equalization power to equalize the valuations as placed thereon by merchants, and even to increase them, but by section 9130, Revised Statutes 1899, the city of St. Louis was excepted from the operation of the act, but by virtue of its special charter that power was vested in a city board of equalization, but the Legislature overlooked the provision in the charter which required the city board to meet on the third Monday of March and to remain in session not longer than four weeks, whereas the general law required boards of equalization in counties to meet on the first Monday in September for the purpose of equalizing the valuations of merchants’ statements. There was no reason why the General Assembly, by an appropriate provision in the Act of 1895, could not have required merchants’ statements to be equalized by the board of equalization of St. Louis and the board to meet in September for that purpose, but it did not do so, and the omission is a clear case of casus omissus, which the courts have no power to remedy.
    5. -: -: Board of License Revision. The Board of License Revision of St. Louis has no power to equalize the valuations of statements placed upon their stocks of goods by merchants. That board was not given such power by the ordinance creating it. It was given only the power to review, adjust and correct the lists of persons who are liable to pay license or occupation taxes.
    6. -: Must Be Specifically Authorized. It is axiomatic that the authority to tax a citizen must be found in the written laws, and not be made to depend on a matter of inference or implication. If the General Assembly, in providing by a general act for the equalization of valuations placed upon their stocks of goods by merchants, omitted to include St. Louis within the operation of the laws, the tax due to an increase in those valuations made without authority by the Board of License Revision is invalid and cannot be collected.
    Mandamus.
    PEREMPTORY WRITS AWARDED.

      Judson & Green and Nagel & Kirby for relators.
    (1) The taxation of merchants and manufacturers in Missouri though in form license taxation is in fact property taxation in the form of a license. State v. McKinney, 48 Mo. 373; Cape Girardeau v. Reilly, 72 Mo. 220; State ex rel. v. Tracey, 94 Mo. 217; Aurora v. McGannon, 138 Mo. 38; State ex rel. v. Ashbrook, 154 Mo. 375. The distinction between the two is fundamental, as in license taxation proper the license is fixed by law, there is no assessment as such and no occasion for a hearing. No duty is required but the making up of the license lists and the collection of the license; while in property taxation, there must be a valuation, either by the holder or by some authority definitely appointed by law. County of Santa Clara v. Railroad, 18 Fed. 409; Hagar v. Reclamation Dist., 111 U. S. 701. (2) It appears from the return that there was no express authority either in the statute or ordinance for the revaluation of the merchants’ statements by the so-called Board of License Revision. This is fatal to respondent’s case, as such authority must be given expressly by statute and cannot be based upon inference of intendment. State ex rel. v. Shotridge, 56 Mo. 126; Valley v. Zeigler, 84 Mo. 214; State v. Railroad, 77 Mo. 202; Warrensburg v. Miller, 77 Mo. 56; State v. Railroad, 87 Mo. 236; State ex reí. v. Hagar, 91 Mo. 452; Railroad v. Apperson, 97 Mo. 300; Kansas City v. Building and Loan Ass’n, 145 Mo. 50; St. Louis v. Weneker, 145 Mo. 238; State v. Railroad, 149 Mo. 645; State v. Benedict, 11 Vt. 240; Leach v. Blakeley, 34 Vt.; Wiley v. Flurnoy, 30 Ark. 609; White v. City of Apperson, 22 Wis. 639; Mattheson v. Town of Mazomanie, 20 Wis. 195; Ketch-um v. Town of Mukwa, 24 Wis. 303; McLean v. Jepfson, 123 N. Y. 142; Coontz v. Simpson, 118 Ind. 1; Stewart v. Palmer, 174 N. Y. 188; Ulman v. Baltimore, 74 Md. 507; State, etc., Commrs. v. Holliday, 105 Ind. 216; Flory v. Sherwood, 128 Ind. 495; Oregon, etc., Co. v. Wasco County, 2 Ore. 206; 1 Cooley on Taxation (3 Ed.), p. 616. (3) It is conclusively shown by a comparison of the provisions of the charter of St. Louis, creating the Board of Equalization for the correction of errors and assessments and the equalization of values of assessed property, with the language of the ordinance creating the Board of License Revision, that the authority to change the valuations of property, and to equalize the same, was intentionally withheld from the latter and that its duties were confined to the correction or revision of the license lists in license taxation. Charter St. Louis, art. 5, sec. 24; Ordinance, sec. 2112, p. 19. (4) Another fundamental distinction between license taxation and property taxation is that in the former there is no necessity for notice of the charge to the taxpayer, as the amount of the tax to be paid is fixed by law, while in taxation of property by valuation notice and opportunity to he heard must he provided for in the law,- if the valuation given by the taxpayer is to be changed by any official or board. The ordinance in question makes no provision for notice, for the reason that no notice is required, as it deals wholly with license taxation, as distinguished from property taxation. Stewart v. Palmer, 74 N. Y. 188; Patton v. Green, 13 Calif. 325; Philadelphia v. Miller, 49 Pa. St. 440; Cooley on Const. Lim. 355; Hagar v. Reclamation Dist., Ill U. S. 701; Railroad v. Wright, 207 U. S. 127; Ileth v. Radford, 96 Va. 272; Coontz v. Simpson, 117 Ind. 1. Hence it was that notice was provided in the charter and none is provided in the ordinance. Charter, art. 5, sec. 24. (5) Prior to the Act of March 2, 1895 (See Acts-1895, p. 223), there was no revision, provided by the laws of Missouri, of the values placed by merchants and manufacturers upon their stocks of goods. The valuations made by merchants were final, subject only to the penalties of bond forfeiture and prosecution for false swearing. This Act of 1895, extending the power of the county boards of equalization to the equalization of the valuation of merchants ’ statements with the other property of the county, was expressly limited to the counties of the State, and the county boards of equalization referred to therein existed only in the counties outside of the city of St. Louis; the city of St. Louis being expressly excluded from the statute providing for the county boards of equalization. See Sec. 9130, R. S. 1899. The equalization system of the city of St. Louis provided by charter did not include the equalization of the values of merchants’ statements. R. S. 1889, secs. 6899 to 6922; Laws. 1895; p. 223; R. S. 1879, secs. 6318 to 6341; 2 Wagner’s Stats., par. 938; chap. 95, sec. 6; Gen. Stats. 1865, p. 408, ch. 93, sec. 6; R. S. 1899, sec. 9130; R. S. 1889, sec. 7517; Charter of St. Louis, art. 5, sec. 24, Woerner’s Rev. Code, p. 374; Charter of St. Louis, art. 3, sec. -26, clause 5, Woerner’s Code, p. 329; Ordinances of St. Louis, sec. 20991, Woerner’s Code, p. 1012. (6) As the duty of the City License Collector, under the law, in the issuance of merchants’ licenses is clearly ministerial, and it is admitted that the merchants’ statements or returns were in due form, properly verified, and the tax payable thereunder was lawfully tendered, the remedy by mandamus is properly invoked in this case. State ex rel. v. Ashbrook, 154 Mo. 375; State ex rel. v. Oliver, 116 Mo. 194.

      Lambert E. Walther and Benjamin H. Charles for respondent.
    (1) The duty of collecting state revenue and performing all other functions in relation to the state in the same manner as if it were a county is imposed upon the city of St. Louis. Constitution, art. 9, sec. 23; Scheme of Separation, sec. 34; R. S. 1899, secs. 9334 and 9335; Chap. 149, R. S. 1899: (2) The city of St. Louis has power to assess, levy and collect taxes and to license, tax and regulate occupations. Charter, art. 3, sec. 26, clauses 1 and 5; art. 5, sec. 1. (3) And has power to define the duties of all city officers, and may change, increase or diminish their duties, and may transfer and distribute the powers and duties, in whole or in part, of any office provided for in the charter, to another or others. Charter, art. 4, see. 28; art. 3, sec. 32; art. 4, sec. 45. (4) The provisions of Sec. 8546, R. S. 1899, relating to the correction and equalization of merchants’ returns for ad valorem taxes, apply to St. Louis, (a) The law is general in its character, R. S. 1899, sec. 4160. (b) The merchants’ ad valorem tax is a property tax. Aurora v. McGannon, 138 Mo. 38; State ex rel. v. Tracy, 94 Mo. 2T7. (c) And all property must be uniformly taxed and in proportion to its value. State Constitution, art. 10, secs. 3 and 4. (d) To except St. Louis from these provisions of the statute would result in the act becoming violative of art. 10; sec. 3, and art. 5, sec. 53, of the Constitution. Henderson v. Koenig, 168 Mo. 356; State v. Hill, 147 Mo. 63. (e) Where the language is open to two constructions, one of which will render the act valid, and the other invalid, the former will be accepted. 17 Am. and Eng. Ency. Law, p. 17. (f) The consequences of a proposed interpretation may be properly considered to ascertain the legislative intent. State ex rel. v. Rom-bauer, 104 Mo. 619; Kane v. Railroad, 112 Mo. 34. (g) And likewise, the history of the legislation. Dowdy v. Wamble, 110 Mo. 280; G-abriel v. Mullen, 111 Mo. 119; Greely v. Railroad, 123 Mo. 157. (5) If the said provisions of Sec. 8546, R. S. 1899, have no application to the returns of St. Louis merchants, then the duty of devising a method for correcting and equalizing such returns, in accord with the legislative policy as evidenced by the statute, devolved upon the city. The power to perform such duty is expressly given by the constitutional, statutory and charter provisions cited under points 1 and 2, and particularly by Secs. 9397-8, R. S. 18991, and article 3, section .26, clause 5, of the charter, conferring the power “to license, tax and regulate” merchants, (a) The power to regulate anything means to fix the terms upon which it may be used. Hill v. St. Louis, 159 Mo. 159; St. Louis v. Tel. Co., 149 U. S. 469; Gibbon v. Ogden, 9 Wheat. 1: Sluder v. Transit Go., 189 Mo. 107. (b) Tbe city, in taxing and regulating merchants, bas tbe right to provide for tbe investigation and correction of tbe statements required to be filed by them, (c) And tbe statements or returns thus corrected must be tbe basis for tbe state and school taxes, as well as the municipal tax, because tbe valuation for tbe last named cannot be greater than tbe valuation for tbe tax for state purposes. Constitution, art. 10', sec. 11. (6) Tbe city bas, by ordinance, created a Board of License Revision, and empowered it to review, adjust and correct returns made by merchants, and the amount of ad valorem tax required to be paid by relators must be based upon their returns as corrected by this board. (7) Tbe power to adjust and correct the returns is clearly conferred upon the board by the terms of tbe ordinance. (8) The power to “adjust and correct” authorizes the increasing of tbe returns when found incorrect. Washington Co. v. Railroad, 58 Mo. 372.
   GANTT, J.

These are original proceedings in mandamus to compel tbe respondent, License Collector of tbe city of St. Louis, to issue to tbe relators merchants’ licenses. Tbe cases all involve tbe same questions, and tbe pleadings are identical, except as to the amount of taxes and tbe dates.

In substance tbe petitions alleged that relators are merchants engaged in business in tbe city of St. Louis and tbe respondent is License Collector of said city, and is charged under the law with the duty of issuing licenses to merchants in the city of St. Louis and of collecting taxes levied by tbe State, tbe Board of Education, and tbe said city, on such licenses; that on or about the* first day of June, 1909, tbe respondent under the ordinances of the city of St. Louis, called upon each of said relators to furnish the statement of the value of tbe largest amount of goods, wares, and merchandise which it bad in its possession or under its control at any time between the first Monday of March and the first Monday of June, 1909, and a statement of the aggregate amount of sales made by it during the year next preceding the first Monday of June, 1909; that in addition to the State tax and the tax for the support of the public schools in said city, there was also levied for city purposes an ad valorem tax of one-fifth of one per cent on the valuation of such goods, wares and merchandise situated in the city of St. Louis; that relators thereupon each prepared and filed a statement of said largest amount of goods, wares and merchandise which it had under its control and its possession between the dates aforesaid and the total amount of sales made during the year next preceding the first Monday of June, 1909, said amounts so returned by relators being respectively as follows: “Carleton Dry Goods Company, valuation $766,788.00; total sales $7,365;012.00; Rice-Stix Dry Goods Company, $1,021,314.00, total sales $11,781,630.00; Harga-dine-McKittrick Dry Goods Company, valuation $679,-749.95, total sales $7,514,698.00; Ely & Walker Dry Goods Company, valuation $1,133,845.00, total sales $10,676,080.00.”

That the said amounts were duly sworn to and signed and delivered to the respondent. That upon the said valuation of the stock there was levied under the law, a state ad valorem tax of seventeen cents on the dollar for state purposes, an ad valorem tax of sixty cents for school purposes and twenty cents ad valorem for municipal purposes, making a total of ninety-seven cents, which amount of taxes the license collector is chargeable by law with the duty of collecting; that the said taxes for state, school and city purposes, upon the said valuation, and the tax of one dollar per thousand upon the aggregate sales levied under ordinances of the said city for city purposes, amounted, upon the returns so made by said relators, as follows: “Carleton Dry Goods Company, on stock $7,437.84, on sales $7,356.01; or a total of $14,802.85; Rice-Stix Dry Goods Company, on stock $9,906.75, on sales $11,781. 63, or a total of $21,688.38; Hargadine-MeKittrick Dry Goods Company, on stock $7,292.48, on sales $7,514.70, or a total of $14,807.18; Ely & Walker Dry Goods Company, on stock $10,998.29, on sales $10,676.08, or a total of $21,674.37.” That nnder the statutes of the state and the ordinances of the city, it was made the duty of the license collector on the payment of the said amounts to issue to relators respectively, licenses in due form of law as prescribed in the statutes and ordinances authorizing relators to sell goods, wares and merchandise in one store, stand or place of business in the city of St. Louis for the year following the first Monday of July, 1909; that each relator, on the first Monday of July, 1909, tendered to the said respondent the said several amounts so due upon their said returns as aforesaid and that respondent refused to accept the same, and still refuses so to do. That relators then demanded, upon such tender of payment, the issuance to each respectively of a license as in such cases made and provided. That said respondent refused and still refuses to issue the said licenses, and threatens to prosecute relators for doing business without a license in the city of St. Louis.

The petitions conclude with an allegation that re-lators have no adequate remedy at law, and that they are still ready and offer to pay said sums so payable on their respective statements, and pray the issuance of a writ of mandamus commanding and compelling respondent, on the payment of said sums, to issue to relators merchants’ licenses in due form of law.

The returns of respondent admit the allegations of the petitions of relators as to their business, the office of respondent, that on or about the first day of June, 1909, he called upon relators to furnish statements of the character described in the petition; that relators did file with him statements showing the respective amounts alleged; that respondent refused to accept the same and relators then severally demanded the issuance of licenses to them respectively, which demands were refused. The other allegations of the petitions were denied generally. The returns then set up affirmatively the various provisions of the charter of the city of St. Louis, and of the scheme of separation of said city from the county of St. Louis, whereby the city, through the Mayor and Municipal Assembly, is empowered to assess, levy and collect all tases, for general and special purposes, on real and personal property and licenses, to license, tax and regulate various occupations, including merchants, and to enact all ordinances necessary to carry into execution the laws relating to state, county, city and other revenue within the city of St. Louis. There are likewise set forth in the returns various provisions of said charter authorizing the Municipal Assembly, by ordinance, to define the duties of all city officers, to create new offices and to transfer and distribute the powers and duties, in whole or in part, of any office provided for in the charter, to another or others. That by statute it is provided that the council shall, in all things appertaining to the assessing and collecting of the state revenue and licenses within the limits of said city, perform and do all things which, before the separation by the city and county, devolved on the county court of St. Louis county, unless otherwise provided in the Scheme and Charter of the city, and that whenever the county of St. Louis or the county court of St. Louis county is mentioned in the chapter of the statutes relating to the assessment and collection of the revenue, it shall be taken and understood as applying to the city of St. Louis.

The returns further allege that, pursuant to the charter powers and statutes referred to, the city of St. Louis enacted certain ordinances relating to the licensing of merchants, which ordinances are now and have been in force for a great many years. The procedure for the issuance of the city licenses and the assessment and collection of the ad valorem tax upon the stock in trade for municipal purposes is substantially the same as is provided by the statute in regard to the state license and tax. There are some differences as to the time of payment, the enforcement of the bonds and some other perhaps unimportant details. The returns then allege that the duty of collecting the merchants ’ ad valorem tax for state, school and municipal purposes was performed by the Collector of the Revenue of the city of St. Louis until the Municipal Assembly, by ordinance duly enacted, created the office of License Commissioner and transferred to such office the said duty. That by section seven of said ordinance, which was approved March 15, 1897, there was established a Board of License Revision. The authority of the city to create this board, and the powers of the board, are the questions presented in this case for determination. The respondent sets forth in full the ordinance establishing the Board of License Revision of March 15', 1897. The return then alleges that the License Commissioner, whose office was created by ordinance, collected the merchants’ ad valorem tax and license fees from that time until his duties were, by the act of the General Assembly of Missouri, transferred to a License Collector, whose office was created by said act, and the said duty is now performed by this respondent as such license collector. That by section 8546, Revised Statutes 1899', it is provided that county boards of equalization shall meet on the first Monday of September of each year for the purpose of equalizing the valuation of the statements filed by merchants for the ad valorem tax and that said boards shall have the same powers and preside in the same manner as provided by article 1 of chapter 149, Revised Statutes 1899, for equalization for real and personal property so far as consistent with the provisions of said chapter. That ever since the creation of the Board of License Revision by ordinance as aforesaid, the power and duty of correcting and revising merchants ’ statements for the ad valorem tax and license tax have been legally vested in said hoard, and that the valuations as equalized by said board constitute the legal assessment for such merchants’ ad valorem tax for state, school and municipal purposes. That the council of the city of St. Louis, on May 14, 1909, appointed three discreet and experienced real estate owners, having the other qualifications required by the ordinance, to constitute such board. That after qualifying and choosing a chairman, the said board held daily sessions from June 15th to July 13th, 1909. That the relators respectively filed with respondent statements purporting to give the correct value of the greatest amount of all goods, wares and merchandise between the first Monday in March and the first Monday in June, 1909, and the aggregate amount of all sales made during the year preceding the first Monday of June, 1909'. That upon investigation and examination into said statements and the largest amount of goods, wares and merchandise which the said relators respectively had in their possession or under their control, and upon an examination of the books of account of relators, the said Board of License Revision found the said returns so made to be incorrect. That the board notified said relators respectively to appear before it at certain dates specified in the returns, and that the relators respectively appeared before the board upon the said dates, but refused to correct their statements, and thereupon the board did revise, adjust and correct said statements and raise the amounts thereof as follows: “Carleton Dry Goods Company, to $1,150,182.00; Rice-Stix Dry Goods Company, to $1,531,971.00; Hargadine-McKittrick Dry Goods Company; to $994,432.00; Ely and Walker Dry Goods Company, to $1,700,768.25;” which amount said board, upon investigation and bearing, found and determined to be tbe correct values of tbe largest amount of goods, wares and merchandise wbicb relators respectively bad in tbeir possession and under tbeir con-. trol at any time between tbe first Monday of March and tbe first Monday of June, 1909. That tbe returns as to tbe aggregate amount of sales during tbe year preceding June 1, 1909, were by tbe board found to be correct, except in tbe case of Ely & Walker Dry Goods Company, whose statement as to such sales was, on examination of tbe relator’s books of account and on investigation and examination of tbe said statement, found to be incorrect. And that tbe correct amount of said relator’s sales was $10,785,939.67. Tbe amount of merchants’ ad valorem tax for state, school and city purposes, wbicb each, of tbe relators became obliged to pay, upon tbe returns as corrected by tbe License Board of Revision, are set out in detail in respondent’s returns, tbe total amounts being respectively as follows: “Carleton Dry Goods Company, $18,523.44; Rice-Stix Dry Goods Company, $26,642.85; Hargadine-McKittrick Dry Goods Company, $17,162.05; Ely & Walker Dry Goods Company, $26,642.85.”

Tbe return then concludes that respondent has duly notified relators and given them statements as required by law of tbe amounts of said taxes and license fees as based upon the assessment made by tbe said Board of License Revision as aforesaid, but that relators have failed and refused and still fail and refuse to pay said amounts so legally and properly assessed against them as aforesaid; that respondent is now and always has been ready and willing to issue merchants’ licenses to relators upon the payment of said taxes and license fees.

To these returns relators have filed demurrers, tbe two grounds of wbicb are: First, that tbe Board of License Revision bad no power, under tbe statutes or the laws of this state, to change or alter tbe valúation of the stock of goods, wares and merchandise in the possession and under the control of the relators from that given and stated by them in their verified statements as merchants. And, second, because upon the face of the return, the said Board of License Revision had no power under the ordinance of the city of St. Louis to change or alter the valuation of the stock of goods from that stated by the relators in their returns as merchants.

I. A careful attention to the respective allegations of the petitions for mandamus and the returns of the license collector of St. Louis, will show that the one question of law involved in these eases is whether or not the License Board of Revision, created by an ordinance of said city, has the power to revise merchants’ statements made in pursuance of the general laws of the State as a basis for the levy of ad valorem and license taxes, and to increase the valuation placed thereon by said merchants, .and whether the License Collector of St. Louis can require the taxes for state, city and school purposes to be paid upon such increased valuation as a condition precedent to the issuance of license to do business as merchants in said city.

The grant of power to this court to hear and determine writs of mandamus is without qualification. Our practice has been to decline to issue such writs unless the ease was one of more than ordinary importance, but, as has been said, this is a rule of expediency and does not affect the jurisdiction of the court. In view of the amount of state and school revenue involved and of the importance alike to the relators and to the collector that their respective rights and obligations should, in a matter vitally affecting the public, be speedily and finally settled, we have thought this a proper case to exercise our jurisdiction.

The taxation of merchants and manufacturers in this state, though nominally and in form a license tax, is, in fact, as often held by this court, a property tax, and not merely an oecnpation or license tax, and the merchants’ statements furnish a basis alike for state, school and municipal taxation. [State ex rel. v. Kinney, 48 Mo. 374; State ex rel. v. Tracy, 94 Mo. 217; Cape Girardeau v. Riley, 72 Mo. 220; Aurora v. McGannon, 138 Mo. 38; State ex rel. v. Ashbrook, 154 Mo. 375.]

The distinction between an ad valorem property tax and a strictly occupation or license tax must be kept in view, to reach a proper settlement of the controversy in these cases. When the State, or a municipality by authority of the State, imposes a license tax, it fixes the amount and there is no assessment or any need of one, neither is there any necessity for notice or a hearing. But as said by Mr. Justice Field in Hagar v. Reclamation District, 111 U. S. 710: “Where a tax is levied on property not specifically, but according to its value, to be ascertained by assessors appointed for that purpose upon such evidence as they may obtain, a different principle comes in. The officers in estimating the value act judicially; and in most of the states provision is made for the correction of errors committed by them, through boards of revision or equalization, sitting at designated periods provided by law to hear complaints respecting the justice of the assessments. The law in prescribing the time when such complaints will be heard, gives all the notice required, and the proceeding by which the valuation is determined, though it may be followed, if the tax be not paid, by a sale of the delinquent’s property, is due process of law.” In this State merchandise is not listed for taxation as other personal property, but instead the merchant must apply for a license to trade as such, and without which he subjects himself to -a forfeiture to be recovered by indictment. He must give bond conditioned for the payment of the tax. It is, however, provided that merchants shall pay an ad valorem tax equal to that which is levied upon real estate, on the highest amount of goods, wares and merchandise which they may have in their possession at any time between the first Monday of March and the first Monday of June in each year. It is this amount, furnished by a sworn statement of the merchant, that forms the basis upon which the various state, county, school and municipal taxes are levied.

Prior to the Act of March 2, 1895, Laws 1895, page 223 et seq., there was no provision in the statutes of this State for revising and increasing the estimate of values placed by merchants and manufacturers upon their stocks of goods. The valuations placed by them on their goods upon their oaths were final, subject only to the penalties of bond forfeiture and prosecution for false swearing. No provision was made for equalizing the value of the stocks of goods by a legally constituted board of equalization, as was provided for equalizing the assessments of other property. The Act of 1895 brought these statements for the first time under the jurisdiction of the boards of equalization, and fixed the fourth Monday in September in each year as the time when merchants would be heard by said board to show cause why increases should not be made in their valuations. By express provision of statute, section 9130, Revised Statutes 1899, the city of St. Louis was excepted out of this provision for a county board of equalization, and by virtue of its special charter, which went into effect on the 27th day of October, 1876, section 24, article 5, which provided: “There shall be a board of equalization, consisting of the president of the board of assessors, who shall be president thereof, and four discreet and experienced real estate owners of the city of St. Louis, of a prior residence therein of ten years, who shall be appointed by the judges of the circuit court of the eighth judicial circuit, on the second Monday of March annually. The duty of said board shall be to adjust, correct and equalize the valuation of real estate and personal property in said city. It shall meet on the third Monday in March annually, and shall remain in session for. four weeks, if business requires it, and no longer. Said board shall hear and determine all appeals in a summary manner, shall adjust and correct the assessment books accordingly; shall determine as far as possible whether the property has been assessed at the true cash value, and in just proportion to the assessed value of the other property in the city similarly situated, and to this end shall increase or diminish the assessment on any property, real or personal, or mixed. If they proppse to increase the assessment in any ease, they shall cause notice thereof to be served upon the owner, agent or representative thereof, if within the city, who shall have the right to be heard upon such proposed increase. ..... The members of such board, before entering upon the duties of their office, shall take and subscribe an oath similar to that required of county boards of equalization. ’ ’

The provision of the charter was in full force and effect at the time of and long prior to the passage of the Act of 1895, providing for equalizing the values of merchants’ stocks. At that time, also, there was another statutory enactment which provided (Sec. 9383): “All services required to be performed by county officers under this article shall be performed by the corresponding officers of the-city of St. Louis, and wherever the word ‘county’ occurs, the same shall be construed to apply to and include the city of St. Louis.” The Board of Equalization of the city corresponds to the County Board of Equalization, and therefore the board created by section 24 of article 5 of the charter of St. Louis could and should have performed the duty of equalizing the values in merchants ’ statements just as the County Board of Equalization do in the various counties, but for the fact that the Legislature overlooked the provision in section 24 of article 5 of the charter that this City Board of Equalization was required to meet on the third Monday in March, annually and remain in session for four weeks, if business requires it, and no longer, whereas the general law of the State, as we have seen, requires the Boards of Equalization of the counties to meet on the first Monday in September of each year for the purpose of equalizing the valuation of merchants’ statements. Inasmuch as the assessment and collection of the revenue for the State in St. Louis is a matter within the power of the Legislature, as well as in any and all other counties in the State, there was no reason why the General Assembly, by an appropriate provision in the Act of 1895, could not have required these merchants’ statements to be equalized by the then and now Board of Equalization of the city of St. Louis and to that end required that board to meet in September for that purpose, but it did not do so, and it seems to be a clear case of casus omissus which this court cannot remedy, as it is clearly within the powers of the Legislature and not of the courts.

But the question presented by this record is not the power of the Board of Equalization of St. Louis to equalize the valuations of the merchants’ statements, but whether the St. Louis Board of License Revision has the power to correct and equalize the valuation of such merchants’ statements. We think not. At the time of the passage of the Act of 1895, which for the first time conferred that authority on the county boards of equalization, there was no Board of- License Revision in St. Louis, and it was clearly not within the contemplation of the Legislature to confer that power upon a board not then in existence. It is insisted, how-' ever, by counsel for the License Collector, that for the reason that the Board of Equalization did not and could not meet in September and thus conform to the general laws of the State, the city had the power, under its charter right to create new offices and transfer the duties of one office to another, to create a new board to equalize, and if need be increase, the valuation placed by a merchant on Ms stock, and the city by ordinance did so. The difficulty in reaching the conclusion to which the. License Collector would go, it seems to us, is insurmountable. In the first place, a comparison of the powers granted this Board of License Revision with those conferred upon the Board of Equalization, satisfies us that it was not the intention of the Municipal Assembly to create a board of equalization with the powers claimed therefor in these actions. The large and controlling consideration in creating the Board of Equalization, was to have a body authorized to adjust, correct and equalize the valuation of real and personal property, whereas a careful attention to the ordinance creating the Board of License Revision will demonstrate that its purpose was to have a responsible body who would review, adjust and correct the lists of persons who were liable to pay license and occupation taxes. In the charter provision the Board of Equalization is given power to “determine as far as possible whether the property has been assessed at the true cash value, and in just proportion to the assessed value of the other property in the city similarly situated,” whereas in the ordinance the Board of License Revision is given the power “to determine as far as possible whether all persons have been listed who are required to have a license or pay a license tax, and whether all persons have made correct returns where such returns are required by law or ordinance in connection with licenses and license taxes, and to this end shall add or strike off names.” In striking contrast with this last clause, is the power given to the Board of Equalization to “increase or diminish the assessment on any property, real or personal, or mixed.”

But again, if the Board of Equalization proposes to increase a valuation, it is required to give notice thereof to the person affected, but no such provision is made if this Board of Revision shall increase a merchant’s valuation of his stock.

The only remaining clause in the ordinance from which it might he argued that it was meant to confer the power to equalize assessments of property, is found in section 2112, chapter 30, Revised Ordinances of St. Louis, 1907, in these words: “The majority of said board shall constitute a quorum and a majority shall determine all matters of appeal or of .revision or correction of assessments.” Obviously this clause was inserted by following too closely the language of section 24, article 5, of the charter, which furnished the form for this ordinance, but it cannot be construed as granting a new power not elsewhere found in the ordinance and we can only conclude the use of the word “assessment” in this connection was inadvertent as it could only have reference to the lists of persons who are to pay license taxes and this list this board can review and correct.

Our conclusion on this branch of the case is that this Board of License Revision was designed to perform a very important duty in securing to the city the revenue which it was entitled to take for occupation taxes and that its provisions are well designed for that purpose, but we do not think it was the purpose of the Municipal Assembly when they enacted this ordinance to transfer to this Board of License Revision any of the duties and powers conferred by the charter upon the Board of Equalization, but that this last named board was retained with all the powers conferred upon it by law when it was first provided for in the charter. Inasmuch as this Board of License Revision undertook to increase the valuation which had been returned by the relators to the collector under oath and as the collector demands the tax upon this increased valuation, it is too plain for argument that since such board had no power under* ‘the ordinance which created it to increase the valuation, the collector had no right to demand a payment of taxes npon this increased valuation as a condition precedent to issuing their merchants’ licenses for the year 1909 to the relator.

We have carefully considered the argument that the Legislature by the Act of 1895, obviously intended to pass a general law providing for the equalization of the valuations of merchants’ statements, and that in justice and right it should apply to the city of St: Louis as well as to any other county in the State, but it is axiomatic in this State that the authority to tax a citizen must he found in the written laws and not left to a matter of inference or implication.

And as already said, we have been unable to find any statutory authority authorizing the Board of Equalization in the city of St. Louis to either increase or reduce the valuations placed by merchants in their sworn statements to the collector, and are convinced that it is simply a matter that was overlooked by the Legislature when it was enacting the law of 1895. We are clearly of the opinion that this failure of the Legislature to provide for the equalization of these merchants’ valuations affords no authority for the action of the Revision Board to increase the said valuations. The matter is one that must he referred to the Legislature to correct.

This court in State ex rel. v. Cunningham, 153 Mo. 642, speaking of the omission in the statute relating to Boards of Equalization of the power to add property omitted from the taxpayers return, said: “By these [statutory provisions] we see that the law first appeals to the conscience of the property-owner to furnish an honest list and valuation of his property, then it imposes a severe penalty on him if he fails to do so, and authorizes and requires the assessor under a penalty to make the assessment under the best information he can obtain. If these provisions of the statute are not sufficient to accomplish their purpose, it is for the Legislature and not for the courts to authorize some other method of obtaining a correct list of the taxable property in the county.”

It results, therefore, that the demurrers should be and are sustained, and the peremptory writs of mandamus shall issue directing the license collector to issue to the several relators their licenses in due form of law as prescribed in the statutes and ordinances of said city to sell goods, wares and merchandise, upon their payment to him of the taxes tendered by them upon the basis of their several sworn statements.

Valliant, G. J., Fox, Woodson and Graves, JJ., concur; Burgess and Lamm, JJ., not sitting.


author: GRAVES, J.

text:
    THE STATE ex rel. P. J. McENTEE et al. v. H. L. BRIGHT et al.
    In Banc,
    December 21, 1909.
    1. PROHIBITION: Demurrer: Withdrawal of Return. A filing by respondents in prohibition of a demurrer to the petition, or a motion to dismiss for lack of jurisdiction, is tantamount either to a withdrawal or to a waiver of their return, whether it' was filed by leave of court or not. A return is in the nature of an answer, and a demurrer and answer cannot both stand at the same time, where they both cover the entire case.
    2. -: Challenge of Jurisdiction of Lower Court. It is not an inflexible rule that the jurisdiction of the lower court must be challenged therein as a precedent condition to relator’s right to a writ of prohibition from the Supreme Court prohibiting the lower court from proceeding in the case. Such a challenge is unnecessary where the return of the lower court shows it would have been unavailing.
    3. •-: When Available. The writ of prohibition can be directed only to a judicial officer. It cannot be used to restrain acts administrative, ministerial or legislative.

      4. -: -: Against Court of Impeachment. The writ of prohibition cannot he used by the circuit court to prohibit a city council, which has resolved itself into a court of impeachment, from trying charges preferred by the mayor looking to the removal from office of a city marshal for misconduct in office. Such court of impeachment is not a part of the judicial system ordained by the Constitution, but a mere administrative or executive board of the municipal corporation.
    5. -: Municipal Corporation: Amotion: Common Law. A municipal corporation, both by statute and at common law, has the power to remove an officer. The statutes are .founded upon the common law doctrine of amotion. And the mayor and city council, acting as a court of impeachment, are a mere administrative body of the municipal corporation, and by the statute are given the power, on behalf of the city, to remove a marshal for malfeasance, misfeasance or official incompetency.
    6. -: Against Executive Officer. A law officer of the State, county or city cannot be reached by the writ of prohibition. It cannot be addressed to the mayor of a city to restrain him from investigating charges against a marshal, nor can it be addressed to a city attorney, who is an executive officer.
    7. -: Against Circuit Judge: Excess of Jurisdiction. Although respondent is the judge of a circuit court, and such court is one of general jurisdiction and as such has power to issue writs of prohibition, the Supreme Court can prohibit him from proceeding by the court’s writ to prohibit the mayor and city council, acting as a court of impeachment, from removing a city officer. The writ of prohibition from the Supreme Court is proper, not only in cases where the circuit court has no legal authority to act at all, but also in cases wherein such court, although having a general jurisdiction over a particular class of cases, has exceeded such jurisdiction in the particular cases.
    FINAL WRIT AWARDED.

      G. M. Pritchett and W. B. Robertson for relators.
    (1) The mayor and council of Webb City, when proceeding with the bearing of the charges against the marshal, even though they were performing acts which were judicial in their nature, constituted no part of the judiciary of the State and the circuit court of Jasper county had no right or authority to interfere therewith or to undertake to substitute its judgment or discretion for that of the mayor and council. Al-bright v. Fisher, 164 Mo. 56; State ex rel. v. Wal-bridge, 119 Mo. 383; State ex rel. v. Wells, 210 Mo. 601; Donahue v. County, 100 Ill. 94; McCray v. United States, 195 U. S. 27; 1 Dillon on Munic. Corp. (4 Ed.), sec. 242, 244; State ex rel. v. Clark, 41 Mo. 44; Vitt v. Owens, 42 Mo. 512; Hockaday v. Newsom, 48 Mo. 196; Kalbfell v. Wood, 193 Mo. 675; State ex rel. v. G-ood-ier, 195 Mo. 551; High, Ex. Leg. Rem. (3 Ed.), sec. 782; People v. Lake City Dist. Court, 6 Colo. 534; Burch v. Hardwicke, 23 Grat. (Ya.) 51; Mechem’s Pub: Officers, sec. 1020, p. 675. (2) The pleadings herein disclose charges sufficient in law preferred against the city marshal; valid proceedings thereon to remove the marshal, in which he was participating; his special- report and written answer therein filed admitting the truthfulness of a great majority of the charges; an order of the judge of the circuit court of Jasper county restraining further action by the council on said charges and setting aside the suspension of and restating the marshal, thereby creating an imperative demand for the exercise of the constitutional supervising power of this court over the circuit court of said county. State ex rel. v. Aloe, 152 Mo. 466; Koeh-ler v. Snider, 177 Mo. 546; State ex rel. v. Reynolds, 209 Mo. 161; State ex rel. v. Stobie, 194 Mo. 62; Railroad v. Wear, 135 Mo. 256; State ex rel. v. Scarritt, 128 Mo. 331; State ex rel. v. Sale, 188 Mo. 493. (3) Since the judge of the circuit court made his provisional order and is now here, jointly with the accused officer, resisting this proceeding, it is unnecessary for plaintiffs herein to show any effort on their part to raise the question of jurisdiction of the circuit court, in that court, before applying to this court for relief. State ex rel. v. Sale, 188 Mo. 493; State ex rel. v. Eby, 170 Mo. 497; State ex rel. v. Aloe, 152 Mo. 466; State v. Williams, 221 Mo. 227. (4) Where a power is granted as in section 5761, Revised Statutes 1899, to remove officers of the city the means to effectuate the power are conferred as a necessary incident, hence no ordinance of the city, as to the method of procedure, is necessary. State ex rel. v. Walker, 68 Mo. App. 110; State v. Walbridge, 119 Mo. 388. (5) Section 5761, which provides for the removal of officers of the city, is not narrowed or impaired by Sec. 5790, R. S. 1899, but the latter section is cumulative thereto and applies to misbehavior in office not contemplated by the former section. Manker v. Faulhaber, 94 Mo. 430; State ex rel. v. Slover, 113 Mo. 202; State ex rel. v. Walbridge, 119 Mo. 383; McGrew v. Railroad, 177 Mo. 533; State ex rel. v. Sheppard, 192 Mo. 497; State ex rel. v. Wallbridge, 69 Mo. App. 657; 1 Sutherland, Sta. Con. (2 Ed.), sec. 261; State v. City, 60 N. E. 705; 1 Beach, Pub. Corp., sec. 192, p. 205; Anderson’s Law Dictionary, p. 879. (6) The power given by section 5761 to remove an officer necessarily includes the power to suspend pending the hearing of the charges. State v. Police Commission, 16 Mo. App. 48; State ex rel. v. Lingo, 26 Mo. 496; Westberge v. City of Kansas, 64 Mo. 493; Blackwell v. City of Thayer, 101 Mo. App. 661. (7) The statute provides that the mayor and a majority of the council elect may remove an officer and section 5757, R. S. 1899, makes it a duty of the may- or to preside over all meetings of the council and his failure to preside at such a hearing as the one involved herein would render the proceedings worthless, even with the consent of the accused officer. 28 Cyc., 435, note 98; Throop on Pub. Officers, sec. 386, p. 379'.

      Frank L. Forlow and MooneyhamShepherd & Crane for respondents.
    (1) The relators should have filed a demurrer, plea in abatement or made an objection to the jurisdiction of the circuit court of Jasper county, in that court, before the proceeding in prohibition was instituted in the Supreme Court. The relators made no objection to the jurisdiction of tbe circuit court presided over by Judge Bright. Schubach v. McDonald, 179 Mo. 163 ; People v. Wood, 21 N. Y. 245; People v. Russell,. 49 Barb. 351; Ex parte Hamilton, 51 Ala. 65; State ex rel. v. Gill, 137 Mo. 681; Hudson v. Judges, 42 Mich. 239; Railroad v. Superior Court, 59 Cal. 471; Ex parte McMeechen, 12 Ark. 70; Hanger v. Keating, 26 Ark. 51; 40 Am. Dig. (Cen. Ed.) 2888; Barnen v. Grottschalk, 3 Mo. App. 111. (2) Judicial questions only will be determined by proceedings' in prohibition. The only questions involved in a prohibition case are: First. Has the inferior tribunal exercised and is it exercising jurisdiction which it does not possess? Second. After having jurisdiction over the subject-matter, has it exceeded its lawful power? Melndry v. City, 17 Colo. 304; Helms v. Yaughn, 84 Va. 693; State v. Withrow, 108 Mo. 1; State v. Pox, 85 Mo. 61; State v. Keys, 75 Wis. 288; Ex parte Railroad, 104 IJ. S. 519. (3) When a court acts within the general jurisdictional sphere, but error is alleged in exercising the jurisdiction in the particular case, the Supreme Court will not interfere by prohibition. Wilson v. Burkstresser, 45 Mo. 283; State ex rel. v. Burkhart, 87 Mo. 533; State ex rel. v. Zaehritz, 166 Mo. 315; State ex rel. v. Klein, 116 Mo. 259; State ex rel. v. Strobie, 194 Mo. 45; State ex rel. v. Railroad, 100 Mo. 59. See also Maston v. Sloan, 98 Mo. 252; State ex rel. v. Smith, 104 Mo. 419; State v. Withrow, 108 Mo. 1. (4) Section 1,-of article 6, of the Constitution of Missouri, provides that the judicial power of the State as to matters of law and equity, except as in this Constitution provided, shall be vested in a Supreme Court, the St. Louis Court of Appeals, Circuit Courts, Criminal Courts, Probate Courts, County Courts, and Municipal Corporation Courts. The word “court” is there used in its technical sense. A court is a judicial assembly, the judge of the court is its presiding officer. While the judge is often called the court, yet he is only so rightly called when the tribunal over which, be presides is in session. Bonvier’s Law Dictionary gives to the word “court” this definition: “A body in tbe government to wbicb tbe pub-, lie administration of justice is delegated.” State ex rel. v. Woodson, 161 Mo. 453. All judicial power in this State is by onr Constitution vested in certain courts therein named, Art. 6, section 1, Constitution. The General Assembly has no authority to create any other tribunal and vest it with judicial power. State ex rel. v. Ryan, 182 Mo. 355.
   GRAVES, J.

This is an original proceeding in prohibition. Relators are the mayor, all the city councilmen, except one, and the city attorney, of Webb City, Jasper county, Missouri, a city of the third class. Respondents are Henry L. Bright, Judge of Division No. 1 of the circuit court of Jasper county, Missouri; Joseph H. McNeill, marshal of Webb City, and Joseph H. Williams, a councilman of said city, who refused to join in this proceeding.

The history of the case gathered from the facts pleaded in this action are about as follows:

On April 26, 1909, MeEntee, the mayor of Webb City, suspended from office the said McNeill, marshal of said city, for reasons as in his order stated: “for the reasons that he has been guilty of wilful violation of official obligations, culpable official negligence, dereliction of duty, conduct inconsistent with his official character and duty and official incompeteney, as is more specifically and fully set out in said charge accompanying this order.”

Accompanying this order of suspension, which order was duly signed by the Mayor, there are fifty-seven specific charges made by the Mayor. The charges are thus headed:

“Charges against J. H. McNeill as Marshal of Wehb City, Jasper County, Missouri.
“I, P. J. McEntee, as mayor of said city of Webb City, Jasper county, Missouri, in support of tbe above suspension of said J. H. McNeill, as Marshal of said city, and as canse for his removal from office, charge that said J. H. McNeill as Marshal of said city is guilty of wilful violation of his official obligations; culpable negligence and dereliction of duty: of conduct inconsistent with his official character and duty, and of official incompetency as follows, to wit:”

Then follow the fifty-seven specific charges which cover nearly all imaginable derelictions of duty that could be charged to a city marshal, including a number of fines which had been collected and not accounted for, as well as the collection of fines under color of his office in several cases wherein there had been no proceedings against the parties. Further details are not required at this point.

The charges of the mayor thus closed: “I, therefore, P. J. McEntee, as mayor of said city, for the reasons set out, have under and by virtue of the authority in me vested by the ordinances of the said city, and the statutes of Missouri, 'suspended the said J. H. McNeill from the office of marshal of said city, being convinced of the truthfulness of said charges and desiring the said J. H. McNeill to be removed from the office- of Marshal of said city, do hereby submit to your honorable body the foregoing charges to the end that you may consent to a final removal from the office of Marshal of said city, the said J. H. McNeill.

“P. J. McENtee, as mayor of Webb City, Mo.”

These charges and order of suspension were presented to the city council on April 26, 1909, the said McNeill having been previously served with copies thereof.

At said date McNeill and his attorneys appeared before the council, and time in which to file answers to the charges was requested, and in compliance with said request, the council adjourned to May 4,1909. On May 3rd, McNeill made a report of fines or parts of fines which had been collected in the snm o.f $112.85, which fines, the report says, were in the hands of a deputy marshal and had not been reported to him. May 4th, the council met pursuant to adjournment and resolved itself into a court of impeachment, McEntee being elected president and L. 0. Walker, clerk of said court, the oath of office being administered to all of them by the circuit clerk of the county. McNeill and his counsel were present and filed an answer to the charges. The witnesses for the city were called and sworn, and by consent, the court of impeachment' adjourned to May 5th. On May 5th, the mayor filed a reply to the answer of the Marshal and testimony was heard. Different hearings were then had on May 7th, 12th, 13th and 14th, McNeill and his counsel being present at all the dates and requesting adjournments at times. On May 14th, McNeill and his counsel, after offering numerous witnesses, requested an adjournment to May 17, 1909, which request was granted.

On May 17th, the respondent Bright, in vacation of court, issued upon the application of McNeill, the following order, omitting the caption:

“Joseph H. McNeill, relator herein, comes now on this day and presents to this court his petition, praying that a writ of prohibition be issued by this court, and that pending the hearing- of said cause an order of court be directed to the above-named respondents, to prohibit said respondents and each of them from proceeding any further in a certain proceeding now pending before the city council of Webb City, Missouri, sitting as a board of impeachment; wherein the respondents are attempting to remove relator from the office of city marshal of Webb City, Missouri; the object and nature of said proceeding being more fully set out in the petition of relator on file herein; and on motion of the relator herein, and such petition, being heard on presentation, and upon reading the affidavit on file herein in support thereof, and the court being fully advised in the premises finds that said petition is sufficient in law; that the same is supported by persuasive evidence of its truth, and thus being well advised therein, on full consideration thereof, hereby orders that said respondents above named and each of them, do appear before this court on the 7th day of of June, A. D. 1909, at the hour of 10 o’clock of said day, and show cause why final judgment in prohibition should not be entered in the above entitled cause as is prayed by relator in his said petition. And the court does further order that in the meantime the said respondents above named and each of them refrain from suspending or attempting to suspend, or from removing or attempting to remove, relator from the office of City Marshal of Webb City, Missouri, until the further order of this court. Witness II. L. Bright, Judge of the circuit court within and for the county of Jasper, State of Missouri, and the seal of said Court heretofore affixed, this 17th day of May, A. D. 1909.
“Henry L. Beight, Judge.”

In this action as indicated by the caption of the order McNeill was relator, and the mayor, all the city councilmen and the city attorney were respondents. The petition upon which the order was made will be noticed later.

Upon application this court issued a provisional writ of prohibition, to which respondents made return, and relators filed a motion to quash the return or to enter judgment upon the pleadings. The latter motion was filed June 10, 1909. On October 12, 1909, the respondents jointly filed what they called their motion to dismiss this cause, stating seven reasons therefor, mostly going to the jurisdiction and right of this court to issue the provisional writ.

I. The motion last filed by the respondents as stated ahoye is by them called a motion to dismiss. It is so labeled, but upon its face it appears to be dual in character. It challenges the jurisdiction of this court, and in that sense it might be called a motion, as there is such a thing as a motion to dismiss a proceeding because'the court has no jurisdiction. But it further challenges the sufficiency of the relator’s petition and in that sense is a demurrer. But, whatever it be, it is the last pleading filed by the respondents, and the question now is upon what pleadings shall we determine the case. To- be more pointed, shall we determine the case on relators ’ petition, respondents ’ return, and relators’ motion for judgment on these two pleadings, or shall we determine the case upon .rela-tors’ petition and respondents’ so-called motion to dismiss?

Ordinarily respondents, after making return, before filing any pleading in the nature of a demurrer, should have gotten leave of court to withdraw their return before filing the other pleading, but having filed it without taking such leave we are at liberty, if we so desire, to treat the return as withdrawn, and proceed with the case upon the issues made by the last pleading. In fact the filing of the last pleading is tantamount to a withdrawal of the return, in law. If not a withdrawal at least a waiver of the return.

A return is in the nature of an answer -and a demurrer and answer can’t both stand at the same time, where they both cover the entire case. The rule is well stated in 6 Ency. Pl. & Prac., p. 382, thus: “A party may demur to one part of a declaration, petition, or complaint, and plead or answer to another, but he cannot demur and plead or answer at the same time to the same part of the pleading. There cannot be an issue of law and of fact to the same pleading or part of a pleading at the same time. Thus there cannot be á general demurrer and a plea or answer to the whole declaration or complaint at the same time, nor to the same count, or paragraph, except where the matters therein stated are divisible in their nature, and a part of the count or paragraph is good and a part had; where this is the case, defendant may plead to the former and demur to the latter.” The author has collated the authorities from the different states, and we will not repeat the citation here.

It is a rule too well established to need citation of authority that if a party demurs and then afterward answers, he is deemed to have withdrawn, waived or abandoned his demurrer. By analogy, the converse should he true. That is, if a party has answered and afterward demurs, he should he deemed as having withdrawn, waived or abandoned his answer.

In Dunklin County v. Clark, 51 Mo. 1. c. 61, this court came up to the question in a way. We there said: “If a demurrer he filed and not disposed of, and an answer is afterwards filed and the case is tried on the answer, that amounts to a waiver of the demurrer. And in like manner, where an answer is filed and after-wards the case goes off on demurrer without noticing the answer, the proceedings on the demurrer amount to a withdrawal of the answer.”

In Henley v. Henley, 93 Mo. 95, there were a petition and answers. The answers, besides other matters, set up a special defense, that of former adjudication. To these answers the plaintiff filed a reply in the nature of a general denial, and a demurrer to the special defense aforesaid. The court sustained the demurrer and then entered judgment dismissing plaintiff’s hill, with the issues raised by the petition, un-attacked portions of the answers, and reply yet pending. Judge Black, speaking for the court, said: “It is not claimed that there was error in overruling the demurrer, but it is said there was error in giving judgment of dismissal at that stage of the case, and that the court should have tried the issues of fact, presented on the petition, answer, and reply. The judgment shows that the plaintiffs, by their attorneys, elected to stand by their demurrer, and refused to further plead or reply to the answer. As the demurrer was specific and interposed only to the special defense, the reply, though general, having been filed at the same time, must he regarded as relating alone to the other affirmative matter stated in the answer. Even if the reply was designed to make an issue of fact on the plea of a former adjudication, insisting upon the demurrer thereafter would amount to a withdrawal of the reply as to the special defense to which the demurrer was interposed. [Dunklin County v. Clark, 51 Mo. 60.]”

It is to the latter lines of this quotation that we direct attention. They are peculiarly applicable to the case at bar, because the brief filed by respondents insists upon the motion to dismiss. In fact their whole statement and a greater portion of their brief is directed to this motion.

The same question is likewise discussed and along the same lines by Philips, P. J., in Fadley v. Smith, 23 Mo. App. 1. c. 95.

In our judgment the filing of the latter motion was tantamount in law to a withdrawal of the return, or a waiver or abandonment thereof. But in this case an examination of the return and the motion shows that the same or practically the same legal questions are raised, for when you have taken from the return the admissions made as to allegations in the petition, we only have left the legal questions common to both papers. So that in this case we shall, as counsel have done, proceed to consider both instruments, not intending however that such shall be considered as a precedent for future pleading in this manner.

II. Considering both instruments, one of the points made is that the relators’ petition here fails to aver, and therefore the admitted facts fail to show, that re-lators, then respondents, in the circuit court of Jasper county made objection to the jurisdiction of that Court prior tó the application for a writ of prohibition here. It has never been a hard and fast rule in this State that the jurisdiction of the lower court must first be challenged therein before a provisional writ can issue from this court. [State ex rel. v. Aloe, 152 Mo. l. c. 484; State ex rel. v. Eby, 170 Mo. l. c. 518; State ex rel. v. Sale, 188 Mo. l. c. 496; State ex rel. v. Williams, 221 Mo. 227.]

In the Aloe case, with the same question before us, this court said: “It is not a jurisdictional requirement, it is not essential like a motion for a new trial before appeal. The writ of prohibition does not issue ex debito justitiae but only in the discretion of the court. When the applicant has made out his prima facie case, bringing it within the technical requirements of the law, the question still remains for the court, does the real right and justice of the case call for this extraordinary remedy? In determining the question, if there is anything in the circumstances suggesting that the party has neglected to apply for relief that was reasonably available, the writ would be withheld, at least until such relief was sought. The Supreme Court of California, in the case last cited, took this view of the subject, and held that the failure to apply to the lower court to discharge the receiver did not justify a denial of the writ of prohibition. [Havemeyer v. Superior Court, 84 Cal. 397, citing Mayor of London v. Cox, L. R. 2 H. L. 278-280.] The point is not presented in the briefs of the learned counsel accompanied with any suggestion on their part that an application to the circuit court would have availed, but they present it as a fixed bar to the relator’s application for this writ. We do not so regard it.”

Neither do counsel for respondents in this case make any suggestion that the court in Jasper county would not have held on with a death grip' to jurisdiction of the cause pending before that court. On the contrary, the Judge of that court joins in the return made by the City Marshal, affirming his right to proceed with the case. Thus by the return it is shown that a challenge to the jurisdiction would have been unavailing.

In State ex rel. v. Eby, supra, Sherwood, J., crisply puts state law thus: ‘ ‘ The point is made on behalf of respondents that relators cannot have prohibition because the lack of such jurisdiction has not been raised or pleaded in the lower court; and that this is elementary law. This view is frequently found expressed in text-books. [High, Extr. Leg. Rem. (3 Ed.), sec. 773; 2 Spelling, Inj. and Extr. Rem. (2 Ed.), sec. 1731.] But this is not the law if it is to be taken as invariably true; true without variation or shadow of turning. In fact there are so many exceptions to the hackneyed rule, that the doctrine it announces is now received with many degrees of allowance and, as will presently appear, is not an absolute touchstone of jurisdiction. In short, the fact of having pleaded lack of jurisdiction in the lower court is not by any means a. sine qua non of jurisdiction in the supervising court to issue the provisional rule.” He then proceeds to review the case law upon the subject.

The last expression of this Court found in the case of State ex rel. v. Williams, 221 Mo. 227, endorses the doctrine of the previous cases hereinabove cited, and cites many authorities from other jurisdictions to a like effect.

This contention will therefore be ruled against respondents.

III. It is well-settled law that a writ of prohibition must be directed to some judicial officer. In other words, its purpose is to restrain judicial action, and not legislative, executive or administrative action. [32 Cyc., p. 600; High Extr. Leg. Rem., sec. 782; Me-chem’s Public Offices and Officers, sec. 1019; State v. Hathaway, 115 Mo. 36; State ex rel. v. Goodier, 195 Mo. 1. c. 561.]

The general rule is thus announced in 32 Cyc. supra: “The writ will lie only to restrain the unlawful exercise of judicial functions by an inferior tribunal, acts of an administrative or ministerial or of a legislative character not falling within its province.”

Under this general rule the author has collated the authorities from all the states and with few exceptions this is the doctrine of the courts. A few courts hold that administrative boards exercising what is called quasi-judicial functions may be reached by the writ (32 Cyc., p. 601), but these cases are few and confined to two or three states.

Now the gist of this case lies in the character of this court of impeachment. If it is a part of the judiciary of the State, designated and authorized by the Constitution, then a writ of prohibition can be directed to it upon proper grounds and upon proper application, but if it is not a part of the judicial system authorized by the Constitution and is a mere administrative or executive board of a municipal corporation, then such writ cannot be directed to it. If a writ of prohibition could be properly and lawfully directed to it, the judge of the circuit court of Jasper county had authority so to do, but if not then the judge exceeded his lawful authority in issuing the writ, and this court was right in stopping such judge from doing an act in excess of his lawful authority. So that, whilst there is a mass of charges and counter charges in the voluminous pleadings in this case, as well as in the case in the circuit court, the case proper is narrowed down to a very small compass.

The city council and the mayor were proceeding under section 5761 and 5790, Eevised Statutes 1899', andi an ordinance of the city passed thereunder. These statutes and ordinances the respondents attack as am-constitutional, “fox the reason that they confer judicial functions on the mayor and city council contrary to section 1, article 6, of the Constitution of Missouri. ’ ’ And they further say that, inasmuch as article 4 of chapter 91, Revised Statutes 1899, does not provide for an appeal from the judgment of such court of impeachment, or for a trial de novo in the circuit court, and there being no such remedy afforded by any other law, “said sections of article 4 of chapter 91, Eevised Statutes 1899, attempt to confer exclusive original jurisdiction, as well as final jurisdiction, on the city council and are therefore violative of section 1 of article 14 of the Constitution of the United States.”

The statute, section 5761, supra, provides: “The mayor may, with the consent of a majority of all the members elected to the city council, remove from office, for cause shown, any elective officer of the city, such officer first being given opportunity, together with his witnesses, to be heard before the council, sitting as a court of impeachment. Any elective officer may in like manner, for cause shown, be removed from office by a two-thirds vote of all the members elected to the city council, independently of the mayor’s approval or recommendation. The mayor may, with the consent of a majority of all the members elected to the council, remove from office any appointive officer of the city at will; and any such appointive officer may be so removed by a two-thirds vote of all the members elected to the council, independently of the mayor’s approval or recommendation. The council may pass ordinances regulating the manner of impeachment and removals. ’ ’

The ordinance in question provided for the suspension of any officer of the city for such acts of malfeasance and misfeasance and of official incompetency, as are contained in these charges against the city marshal.

These constitutional questions are really outside of - a discussion necessary to determine this case. The question here is what is the real character of this court of ■impeachment'? If it is a court within the meaning of the Constitution, then all questions as to constitutionality of the laws under which the court acts can he determined in a proceeding in prohibition, but if it is not such court, then relief must be sought in some other proceeding. So that after all the sole question to be determined is the character of the body which was trying McNeill for his official life. To our mind it is not such a body to which a writ of prohibition can be directed.

In discussing such writ, Mechem’s Public Offices and Officers, sec. 1020, says: “Hence the writ will not be granted to restrain the secretary of the interior from convening a court-martial, or the governor from issuing a commission; nor to restrain the mayor or common council of a city from proceeding to investigate charges against a municipal officer.” To like effect is High on Extraordinary Legal Remedies (3 Ed.), sec. 783.

Statutes of this and other states authorizing the removal of municipal officers are founded upon the common law doctrine of amotion. They are in a sense but declaratory of the common law doctrine aforesaid. [1 Dillon on Munic. Corp. (4 Ed.), sections 240 to 243, inclusive.] Section 241 reads: “But the power to amove, like every other incidental power, is incident to the corporation at large, and not to any select body or particular part of it, and unless delegated to a select body or part, it must be exercised by the whole corporation, and at a corporate assembly regularly and duly convened. The power to hold such an assembly is, however, implied in the power of amotion.” This distinguished author after tracing the English origin of the laws, in section 244 says: “A provision in a city charter vesting the board of aldermen with the sole power to'try all impeachments of city officers, the judgment only extending’ to removal and disqualification to hold any corporate office under the charter, is not unconstitutional as authorizing the exercise of judicial powers by a legislative or municipal body, hut is rather the exercise of a power necessary for its police and good administration.”

Colorado, with a constitutional provision practically borrowed from ours, has passed upon the exact question in case of People ex rel. v. District Court, 6 Colo. ]. c. 536, whereat that court said:

“It will be observed that the tribunal to which the writ issues must he acting in a judicial and not merely an administrative or ministerial capacity. See High Ex. Leg. Rem. par. 769; Insurance Co. v. Flint, 13 Minn. 244, and cases therein cited. “The city council is not a judicial body; and it is doubtful if the Legislature, under the Constitution, could invest it with judicial authority. In the case under consideration it was not acting or attempting to act in a judicial capacity. The examination of charges preferred against the city solicitor, finding him guilty of malfeasance in office, and removing him therefrom, by the city council, was not the exercise of judicial power. And this is true though the offenses charged may constitute causes of action cognizable by the courts. See Donahue v. County of Will, 100 Ill. 94.”

The Donahue case referred to by the Colorado case, supra, is a case wherein the Board of County Supervisors, removed a County Treasurer and ex-offi-cio Collector for failing to pay over county moneys, under a statute of Illinois authorizing such act upon investigation. The officer there raised the question that the statute was unconstitutional in that it conferred judicial powers upon the board, and further claimed that he could not be removed except by proper proceeding in a judicial proceeding. The contention was disallowed and Mr. Justice Walker, spealdng of the framers of tlieir Constitution, made some remarks very pertinent here: “They knew that a proceeding by quo warranto, with the right to appeal, would be useless where the term fixed is of short duration, as it would expire before a final decision would1 be reached. The body, as practical men, could not have intended that such slow processes should be adopted, and thus permit a reckless, dishonest and irresponsible officer to collect and defiantly squander -the public revenue, compel his bondsmen to stand by and see him working their financial ruin, and neither the public nor the individuals be able to check it, but to wait till his office expires before he is removed or checked in his destructive course. We must presume the framers of the Constitution intended to place no limitation on the power of the General Assembly to provide ample and effective means to prevent such wrongs to the public and to individuals. Possessing legislative power, the General Assembly was fully competent to prescribe the offences which should work a forfeiture of this office, and provide what tribunal shall determine the fact.”

In Fuller v. Attorney-General, 98 Mich. l. c. 104, it is said: “To the proposition that removing boards perform acts which are judicial in their nature, we readily assent. They must hear and determine, when the power is limited to removals for cause. So must boards of review, auditing boards, highway and drain officers, pardon boards, and in fact nearly every officer who has duties to perform; and it is also true that the action of all of these is subject to review in courts of justice. None of them, however, belong to the judicial department of government, nor can they be called judicial officers, though all perform acts in their nature judicial. Their acts are administrative. [Donahue v. County of Will, supra; State ex rel. v. Hawkins, 44 Ohio St. 98.]”

Nor are we without authority in this State. The city charter of the city of St. Louis vests power to hear and determine the question of removing certain city officers in the mayor. The commissioner of public buildings in said city had charges preferred against him, and said charges were heard by the mayor, at which hearing the officer and witnesses were present and heard. The mayor found the officer guilty, whereupon he sued out a writ of certiorari from the circuit court, and upon due return thereof being made by the mayor, the officer filed his motion to quash the proceedings, which motion being overruled, the case reached this court by appeal, and was determined at the October Term, 1907. [State ex rel. v. Wells, 210 Mo. 601.] It was there urged that the Mayor, a mere executive officer, was violating the Constitution by exercising judicial functions. This contention was not sustained by this court. Fox, P. J., at page 610, says: o “Upon these provisions of the Constitution learned counsel for appellant predicates his contention and seeks to draw the conclusion that, inasmuch as the may- or is an executive officer, he cannot exercise the powers of a judge. It is sufficient to say upon that insistence that, in contemplation of the provisions of the Constitution wherein it vests the judicial power in the courts of the State, the mayor is not a judicial officer, nor under the terms of the Constitution is he to be denominated a judge in any way connected with the judicial department of the State. Manifestly one to be a judicial officer must in some way be connected with the judicial department. Judges of judicial tribunals contemplated by the Constitution must be the presiding officers of some tribunal whose jurisdiction or power is defined or prescribed by the Constitution or laws made thereunder.”

To a like effect is State ex rel. v. Walbridge, 119 Mo. 383. In this case the officer charged with official delinquencies undertook to prohibit the Mayor from trying his case. This court denied the writ. In so doing the constitutionality of the city charter was upheld, but Sherwood, J., suggests the source of such statutes in this language: “In this instance, not only was the power of amotion of an offending officer for reasonable and just cause one of the common law incidents and resultants of the incorporation of the city, but it was specifically conferred by the charter, and delegated to the Mayor and enforced by ordinance. It is true that neither charter nor ordinance makes any provision for the means whereby the amotion of an appointed officer is to be effected; but where a grant of power is given, all the means necessary to effectuate the power pass as incidents of the grant. [Sutherland on Stat. Constr., sec. 341; 2 Beach on Pub. Corp., sec. 1314; Ex parte Marmaduke, 91 Mo. l. c. 262, and cases cited; Grover v. Huckins, 26 Mich. 476.] " The learned judge had previously quoted at length one of the sections to which we referred from 1 Dillon on Munic. Corp. (4 Ed.), i. e., section 240, which discusses the power of amotion at common law.

And as to whether such bodies as the one involved in this case, are courts within the meaning of section 1 of article 6, we have made some further comments, in the recent case of State ex rel. v. Andrae, 216 Mo. 617.

From the authorities there can be no question that the mayor and city council, sitting as a court of impeachment, as in this instance, is not a judicial body within the meaning of our Constitution. It is a mere administrative body under a municipal corporation, which class of corporations both by statute and common law have the power of amotion. Even at common law such corporation had the right to delegate the power of amotion to a select body, but under our statute the charter of the corporation has delegated the power in cities of the third class to the mayor and city council, and to this extent the seat of the power has been fixed. We conclude, therefore, that this body so constituted is not one to which the circuit court or the judge thereof could address a writ of prohibition. Not that the acts of such court of impeachment may not be reviewed at all, but the Court has no legal authority to stop the proceedings of such a body. The courts can review their authority upon writs of certi-orari. [State ex rel. v. Wells, supra.] Possibly other remedies might be used, but that is adrift in this case.

In addition the writ in this case went against Mc-Entee as Mayor, and to his acts as Mayor or executive officer of said city. The writ will not lie against such officer in investigating charges against the Chief of Police. So says the Supreme Court of Virginia in Burch v. Hardwicke, 23 Gratt. 51.

Further the writ issued by the respondent Bright, as Judge of Division One of the circuit court of Jasper county, was addressed to the City Attorney of Webb City, one of the executive officers of said city. The law officer of the state, county or city cannot be reached by the writ of prohibition.

Nor will it do to say that because the respondent Bright is the judge of a court of. general jurisdiction and such court can issue writs of that kind, that therefore this court cannot prohibit him from further proceeding in this case. A writ of prohibition from this court is proper, not only in cases where the lower tribunal has no legal authority to act at all, but also in cases wherein such inferior tribunal, although having general jurisdiction over a particular class of cases, has exceeded such jurisdiction in the particular case. [State ex rel. v. Reynolds, 209 Mo. 161; State ex rel. v. Williams, 221 Mo. 227.] In both of these cases the lower tribunal had general jurisdiction, and jurisdiction over the class of cases there involved, but for the excessive exercise of the judicial power thus possessed, we granted the writs of prohibition from this court. In the latter case, G-aNtt, J., said: “The office of a writ of prohibition has been defined so often in this jurisdiction that no time or space need be allotted to it at,this time, further than to say that we are required, by the application for the writ and the motion to dismiss, to determine whether the circuit court of the city of St. Louis, presided over by respondent, Judge Williams, in retaining and asserting its right to. make and enforce the restraining orders already noted against the defendants, and in asserting its right to grant perpetual injunctions in said cause, is keeping within the bounds of the jurisdiction prescribed for it by the laws of this State, for it is now the settled doctrine that the writ lies as well to prevent an excessive or unauthorized application of judicial force as where a court assumes judicial power not granted by law.”

So in the case at bar, whilst Division One of the circuit court of Jasper county is a court of general jurisdiction, and can issue writs of prohibition, yet' it exceeded its power when it directed such a writ to such a body, which under the law should not have been arrested in their proceedings by a writ of that character.

The judicial power exercised being in excess of the jurisdiction given, the provisional writ herein should be made permanent and it is so ordered.

Let the final writ of prohibition be issued.

All concur, except Burgess, J., not sitting.