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ed to our court, where the action of the trial | mus. "It does not mean, as counsel's argucourt was reviewed, demurrer sustained and a peremptory writ ordered to issue. This case involves, as did the Ryan Case, a construction of what is now section 2551, R. S. 1909. That section provides that in case a verdict shall be found "for the person suing out such writ, or judgment be given for him on demurrer, or by nil dicit, or for want of a replication or other pleading, he shall recover his damages and costs, in such manner as he might do in a civil action for a false return, and the same may be levied by execution, as in other cases." Here as there we are also to consider what is now section 2554, R. S. 1909. That section provides: "If any damages shall be recovered, by virtue of this article, against any person making return to such writ, he shall not be liable to be sued in any other action or suit for making such return."

[2] In the Ryan Case, after our court had held that it was one for the issue of a peremptory writ of mandamus, counsel for relator moved for an assessment of damages. It is on the action of our court on this motion that the decision in the Ryan Case, beginning at page 306, 2 Mo. App., is here pertinent. In moving for an assessment of damages, counsel for relator in the Ryan Case took the position, first, that the damages provided for under what is now section 2551, are those which the relator had sustained by reason of the official malfeasance or omission which the mandamus was intended to remedy; second, "that the recovery of such damages, in the contingencies stated, is a positive right, which cannot be qualified or denied;" and, third, that the words "in such manner as he might have done in a civil action for a false return," refer only to the forms or modes of procedure whereby the damages are to be recovered, and do not, in the least degree, qualify or limit the absolute right of recovery." Judge Lewis, noticing these contentions (2 Mo. App. loc. cit. 307) says: "A short review of the history of the law will demonstrate that neither of these positions is tenable." Noting that our statute is a literal transcript from that of 9 Anne, chap. 20, Judge Lewis says that the statute shortened the process in use prior to the enactment of that statute by allowing a traverse of the return and by allowing the traverser, upon proof of its falsity, to recover his damages, etc., "in such manner as he might have done in a civil action for a false return," that is, for the false return already made in that case, and shown to be so. Referring to this provision of the section allow ing the relator to recover his damages and costs, "in such manner as he might do in a civil action for a false return," Judge Lewis says, referring to another opinion of the court in a case not cited, that this civil action for a false return here referred to, is an action against the defendant for his false

ment seems to imply, any independent common-law proceeding for a false return, against a sheriff or other officer." That, says Judge Lewis, has been the uniform interpretation in England ever since the adoption of the statute, as well as in the States of the Union wherein the same statute has been enacted. The argument of the opinion all through, is that the statute provides for the recovery of damages in like manner as might have been recovered had the party suing out the writ brought his civil action for a false return. Referring to what is now section 2547, R. S. 1909, which enacts: "When any writ of mandamus shall be issued, and return shall be made thereto, the person suing out or prosecuting such writ shall plead to or traverse all or any of the material facts contained in the return," Judge Lewis remarks that this makes no provision for a demurrer and that all the benefits of the statute, "including the summary recovery of damages, can apply only to an issue of fact raised upon the return. The relator may demur. But, if he does so, is remitted to his own common-law position as to damages, etc., and can claim nò privileges under the statute." That is what occurred here, the relator, or person suing out the writ, demurred to the return. It is the person making the return, not the relator, who, under the provisions of what is now section 2548, R. S. 1909, is required to reply, take issue or demur to the pleading of the party suing out or prosecuting such writ. That does not apply to the relator, and, in point of fact, here the relator did not plead to or traverse the return but demurred to it, and, as said by Judge Lewis, "no commonlaw writer or lawmaker ever confounded a 'plea' or 'pleading' with a demurrer-which implies, simply, a refusal to plead." In the mandamus case here involved, neither by pleading nor traverse was the return challenged, the matter which might have been called a denial having been eliminated. was challenged, not as a false return, but by a motion for judgment on the petition and return, practically as on demurrer, as insufficient in law. The return was not adjudged to be a false return but to be insufficient in law. Hence, under the Ryan decision, there was no ground here for the application of the statute providing for the assessment of damages in favor of relator in the mandamus proceeding.

It

After disposing of that and holding that damages could not be assessed in favor of relator in the mandamus, the writ having been made peremptory, Judge Lewis, speak ing for our court, says (2 Mo. App. loc. cit. 310): "It should now sufficiently appear that the damages recoverable under the statute are not on account of the injury originally sustained by the person suing the writ, or any inconvenience directly resulting therefrom. Redress for such injury or incon

(Mo.

arate action. It has been held, however, | damus and would never issue the bonds. that the party injured by an official omission Damages were asked against this defendant, of a ministerial officer may have his choice between the suit for damages and the remedy by mandamus; but he cannot pursue both. Kendall v. Stokes, 3 How. 87, 11 L. Ed. 506. The relator here, it may be remarked, would have us permit him to pursue both remedies in the same proceeding"

It is to this part of the opinion in State ex rel. Alexander v. Ryan, supra, that counsel for respondent here, plaintiff below, take exception, claiming that it has been overruled by later decisions of our Supreme Court and of the Courts of Appeals, and that it is against the weight of authority outside of our state, those counsel arguing that the right of action for the damages sustained by reason of being compelled to resort to mandamus to compel the performance of a ministerial duty, is clear and that such damages can be recovered in an ordinary action; that the right is a common law right. Taking up this proposition as to the decision in this case having been overruled in principle both by our Supreme Court, our own court, and by the Kansas City and Springfield Courts of Appeals, let us see whether that is true. The case referred to as decided by our Supreme Court is that of St. Joseph Fire & Marine Ins. Co. v. Leland, 90 Mo. 177, 2 S. W. 431, 59 Am. Rep. 9. An examination of that case fails to support this contention of counsel. The facts in that case appear to be that the plaintiff, holding a large number of bonds issued by a county in the state of Kansas, had applied to the board of commissioners of that county to levy and cause to be collected on the property in the county subject to taxation, a tax sufficient to meet and pay off the interest coupons of the bonds as they matured. It was claimed that the defendants had not only failed to discharge that duty, which, it is averred, was a ministerial one, but had conspired with the other members of the board and other citizens of the county to cheat and defraud plaintiff out of the interest accruing and to accrue on the bonds, and for many years had prevented the board from levying and causing to be collected any tax or money to pay the interest on the bonds; that plaintiff instituted suits on interest coupons of the bonds and recovered judgment in the United States Circuit Court for the proper district; that that court, by its peremptory writ of mandamus, commanded the board and each member thereof to levy a tax on all property in the county subject to taxation for the purpose of paying the judgments, but that the defendant, for the purpose of carrying out the conspiracy and in order to cheat and defraud plaintiff, refused to obey the mandamus and induced other members of the board to disobey the writ, and had conspired with others and joined with them in declaring that they never would obey the writ of man

who was found in this state, for his personal acts, his acts done in pursuance of a conspiracy between him and others to defraud plaintiff. That is no authority one way or the other for the position here taken by counsel for respondent and is in no sense a parallel case.

Our court in State ex rel. Wheeler v. Adams, 101 Mo. App. 468, 74 S. W. 497, sustained an action against the county treasurer after he had been directed by mandamus to pay certain warrants, but that action was in no sense an action such as the one at bar. It was an action under the statute for the penalty of the bond and for damages accruing under it; in the nature of a penal action. There are some general expressions in that opinion that tend to give color to the claim now made by plaintiffs, respondents here, but the point was not before our court in that case, as to whether, having brought his action for mandamus, the relator in that could maintain a separate action and a distinct action for damages accrued by reason of the mandamus. cided and whatever is there said about it, is That point was not denot within the scope of the decision.

ey, 113 Mo. App. 582, 87 S. W. 1014, a deciThe same may be said of Steadley v. Stucksion by the Kansas City Court of Appeals. There, it is true, the Kansas City Court of Appeals says, that being a ministerial duty which the defendant had left unperformed, he must render compensation to those whom he had injured by his failure to perform it, but it is not there decided that two separate actions, one by mandamus, the other for damages for failure to perform a ministerial act, can be maintained. There is no discussion and no point made there on any such proposition.

These are all the cases from our own courts to which we are referred, except a decision by the Springfield Court of Appeals, Gardner v. Gas & Electric Co., 154 Mo. App. 666, 135 S. W. 1023, in which, it is true, it is held by that court that a relator in a mandamus proceeding had a right to limit his prayer for relief to the issuing of the peremptory writ and did not thereby lose his right to institute an independent proceeding to recover the damages sustained by reason of having been put to mandamus to establish his right and compel performance. The only authority cited in support of this proposition by the Springfield Court of Appeals is People ex rel. Goring v. Wappingers Falls, 151 N. Y. 386, 45 N. E. 852. An examination of that case fails to sustain the proposition. The facts in this New York case do not bring it within this. statement that the relator in the mandamus The only relevant matter is the proceeding, under the New York law, would have been entitled, if he had so elected at the time he obtained his final order, to an award

of his damages against the defendant, and that he should not be driven to a second action to recover his damages. He had neglected to have his damages assessed when the mandamus was disposed of in the lower court, but on prevailing in the appellate court and on the cause going back to the trial court, he applied for assessment of damages. The lower court denied this, because made too late. He appealed from this and the Court of Appeals, reversing the trial court, held that the failure to have damages assessed when the mandamus was awarded, had not deprived relator of his right to an assessment of them in the mandamus proceeding, because, under and in consequence of a stipulation that had been entered into, it had been agreed that the assessment of damages should be postponed until the cause had been determined by the appellate court. There is nothing in that decision that holds that, having resorted to mandamus for the redress of his grievance and neglected to apply for and have damages assessed, the relator could subsequently maintain an action against respondent for damages suffered in consequence of a refusal to perform a ministerial act.

In Steadley v. Stuckey, supra, an action against defendant for damages incurred in having been driven to enforce the performance of a ministerial duty, no point was raised or in decision as to whether two actions would lie. All that can be said of it, is that the Kansas City Court of Appeals did sustain the action for damages. While it may be argued from the fact that the court recognized the action as one to be determined, it is not decisive of the point, and is not an adjudication of it.

compelling him to perform his duty and then a common law action against him for having failed to perform that duty. The authority for the proposition announced through our court by Judge Lewis in the Ryan Case, that one has the choice of the remedies, but that selecting one he cannot resort to another, is the very great authority of the Supreme Court of the United States in Kendall v. Stokes, 3 How. 87, 11 L. Ed. 506. There Mr. Chief Justice Taney, speaking for all the members of the Supreme Court, except Mr. Justice McLean, at page 100 of 3 How. (11 L. Ed. 506), says: "The plaintiffs show that they have sued for and recovered in the mandamus suit the full amount of the award; and having recovered the debt they now bring another suit upon the same cause of action, because in the former one they could not recover damages for the detention of the money. The law does not permit a party to be twice harassed for the same cause of action; nor suffer a plaintiff to proceed in one suit to recover the principal sum of money, and then support another to recover damages for the detention." Quoting from Lord Mansfield, in Moses v. Macfarlan, 2 Burr. 1010, to the effect "that the plaintiff having a right to bring an action of assumpsit for money had and received to his use on a special action on the case on an agreement, and having made his election by bringing assumpsit, a recovery in that action would bar one on the agreement, although in the latter he could not only recover the money claimed in the action of assumpsit, but also the costs and expenses he had been put to," Chief Justice Taney holds that the case before the court falls directly within the rule stated by Lord Mansfield. The Chief Justice then

These are the decisions of our own courts says: "This objection applies with still more to which we are referred.

We are referred by counsel for respondent to Amy v. Supervisors, 11 Wall. 136, 20 L Ed. 101, as sustaining their contention that they could resort to both remedies. Reading that case fails to sustain this contention. There it is said, at page 138 of 11 Wall. (20 L. Ed. 101), that the rule is well settled that where the law requires absolutely a ministerial act to be done by a public officer and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct. That is far from holding that one may have both remedies.

We are also referred to Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65. That case is very like St. Joseph Fire & Marine Ins. Co. v. Leland, supra, a suit for damages for failure to obey an order issued in a mandamus proceeding and like State ex rel. Wheeler v. Adams, supra, it is an action on an official bond.

So that save the decision in Gardner v. Gas & Electric Co., supra, it is nowhere decided that one can have both actions, that is,

force, when, as in this instance, the party has proceeded by mandamus. The remedy in that form, originally, was not regarded as an action by the party, but as a prerogative writ commanding the execution of an act, where otherwise justice would be obstructed, and issuing only in cases relating to the public and the government; and it was never issued when the party had any other remedy. It is now regarded as an action by the party on whose relation it is granted, but subject still to this restriction, that it cannot be granted to a party where the law affords him any other adequate means of redress. Whenever, therefore, a mandamus is applied for, it is upon the ground that he cannot obtain redress in any other form of proceeding. And to allow him to bring another action for the very same cause after he had obtained the benefit of the mandamus, would not only be harassing the defendant with two suits for the same thing, but would be inconsistent with the grounds upon which he asked for the mandamus, and inconsistent also with the decision of the court which awarded it. If he had another remedy, which was incom

applying for and obtaining the mandamus. | against his will. The relator here comes into It is treated both by him and the court as no court voluntarily. True, he finds this necesremedy. Such was obviously the meaning of, sary in order to enforce his rights. But the the Supreme Court in the opinion delivered in same may be said of every plaintiff in debt, the former suit between these parties, where covenant, or trespass. We have no precedent they speak of the action on the case, and of an assessment of damages in any such give him the mandamus, because the other case, because of the expenses or inconven-` form of action was inadequate to redress the ience of the suit." injury, and they would not therefore require the plaintiffs to pursue it. And they speak of the action on the case as an alternative remedy; not as accumulative and in addition to the mandamus."

[3] In the light of the authority of our own court in the Ryan Case, and that of the Supreme Court of the United States as announced by Mr. Chief Justice Taney, we are compelled to hold that having resorted to his remedy by mandamus to compel these officers to discharge a ministerial duty, plaintiff lost his right of action against them for failure to perform that same duty. He elected his remedy and having done that he must abide by it and cannot for the same cause, that is, failure to discharge a ministerial duty, resort to the other form of action.

This is supported by authority which, while not controlling, is very persuasive. See People v. Supervisors, 28 N. Y. 112. On the authority of this and of other cases, Mr. Justice Gaynor, speaking for the appellate division of the Supreme Court, in People ex rel. Lally et al. v. New York Cent. & H. R. R. Co., 116 App. Div. 849, 102 N. Y. Supp. 385, holds that damages recoverable by a relator' in a mandamus proceeding caused by a false return to an alternative writ, do not include counsel fees therein; that the only damages that the relator may recover in the proceeding under mandamus, are the same that he could have recovered in an action for a false return. Such an action, says Judge Gaynor, which is an action for tort, the tort being a false return, will not lie to We might properly stop here, but as the recover counsel fees therein expended. point is clearly in the case and has been "There is no tort action in which that can briefed and argued by counsel with great | be done," says Judge Gaynor, illustrating learning and zeal, we hold that independent this with reference to various actions for of the above considerations, this plaintiff cannot recover for the expenditures made by him in prosecuting the mandamus.

Turning again to State ex rel. Alexander v. Ryan, supra, referring to what is now section 2549, which provides that "such further proceedings shall be had therein for the determination thereof, and in such manner as might be had if the person suing out such writ had brought his civil action for false return," Judge Lewis (2 Mo. App. loc. cit. 310) says:

"It should also appear that the statutory expression, 'in such manner,' etc., means nothing more nor less than under the like conditions and limitations as would apply to a civil action for a false return upon the alternative writ, if there were no statute in the case. It follows that the relator, in this instance, is entitled to the assessment of damages demanded, if he could have recovered them in such an action, and not otherwise. "The relator demurred to the respondent's return. The decision of this court, in effect, sustained his demurrer. Thus the return was adjudged insufficient in law; and, for this reason, as well as because the facts alleged in the return were neither traversed nor pleaded to, there could have been no foundation for an action for false return. The relator is, therefore, not entitled to an assessment of damages.

tort. This is in exact accord with what is held by our court in the Ryan Case and quoted above. We do not allow attorney's fees recoverable either as costs or by way of damages in this state, or any costs but such as are expressly taxable, save in some excepted cases, such as on injunction bonds, vexatious delay in paying an insurance policy, and the like, and we allow them in such cases, only because the statute so provides. City of St. Louis v. Meintz, 107 Mo. 611, loc. cit. 615, 18 S. W. 30. No such provision is found in our statute relating to mandamus. All damages there recoverable are as in an action for a false return, and as we have seen, they are never recoverable in such action. So too, there can be no recovery for printing briefs, attending court and the like. In short, none of the items for which a recovery was here allowed, are recoverable here, even if we were to hold that this action can be maintained at all, plaintiff having elected to resort to mandamus for his remedy.

The case of State ex rel. Wheeler v. Adams, supra, relied on very insistently by the learned counsel for respondent, was an action under a special statute that in terms inflicted as a penalty, double damages for the injury sustained against the officer and his sureties on his official bond, and in that case the only damages which had been allowed and which this court sustained, were the attorney's fees in the case. This, the court said, was allowable as damages in an action on the bond. Such an action bears no resemblance to one as for a faise return.

"The reasoning and authorities with reference to damages on an injunction bond have no application here. There, it is the defendant whose damages are assessed. He has not only been restrained in the exercise of a lawFor these reasons we hold that the judg. ful right, but has also been forced into court | ment of the circuit court should be reversed.

Inasmuch as this conclusion is in conflict introduction in evidence of the record of the with that of the Springfield Court of Appeals proceedings relating to the special election in Gardner v. Gas & Electric Co., 154 Mo. App. 666, 135 S. W. 1023, it is ordered that this cause be and it is certified to the Supreme Court of the state for its determination.

NORTONI and ALLEN, JJ., concur.

STATE v. PALMER.

(Kansas City Court of Appeals. Missouri. April 21, 1913.)

1. INTOXICATING LIQUORS (§ 33*)-LOCAL OPTION SUBMISSION TO POPULAR VOTE-ORDER OF SUBMISSION.

Under Rev. St. 1909, § 7238, providing, with relation to local option, that the county court shall order an election to be held at the usual voting precincts for holding general elections, that it shall be conducted, the returns made, and the result ascertained and determined in accordance in all respects with the laws governing general elections, and that no one shall be entitled to vote who is a resident of any incorporated town of 2,500 inhabitants, or who is not a qualified voter of the county, an order of the county court for the holding of such election, to be conducted "according in all respects with the laws of this state governing general elections," was not insufficient . because it did not provide that only legally qualified voters would be allowed to participate; the statute not requiring the order to contain any such provision, and the quoted provision amounting, in legal effect, to an order that only legally qualified voters would be allowed to participate.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 40, 41; Dec. Dig. § 33.*] 2. INTOXICATING LIQUORS (§ 147*)-CRIMINAL OFFENSES SALES IN LOCAL OPTION DISTRICTS.

Where accused sold a case of beer in a county in which local option had been adopted and received the price therefor, but had the order filled by a dealer in another county, there was a sale in violation of the local option law. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 162; Dec. Dig. § 147.*] Appeal from Circuit Court, Chariton County; Fred Lamb, Judge.

Charles Palmer was convicted of violating the local option law, and he appeals. firmed.

Roy McKittrick, of Salisbury, and F. G. Sasse, of Brunswick, for appellant. Roy W. Rucker, of Keytesville, for the State.

held in Chariton county, March 17, 1908, at which the issue of whether or not intoxicating liquors, including wine and beer, should be sold within the limits of the county was determined in favor of prohibition.

The part of the record attacked by the objection is the order of the county court for a special election. The statute provides (section 7238, R. S. 1909): "The county court of such county shall order an election to be held in such county at the usual voting precincts for holding any general election.

Such election shall be conducted,

*

the returns thereof made and the result
thereof ascertained and determined in ac-
cordance in all respects with the laws of this
state governing general elections for county
officers.
No one shall be entitled to
vote who is a resident of any incorporated
town having a population of twenty-five hun.
dred inhabitants or more, or who is not a
qualified voter of such county."

The court ordered "that a special election be held in said county at the usual voting precincts at which general elections for state officers are held on the 17th day of March, 1908, to determine whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of said county, and the tickets to be voted by the voters in said election shall have printed or written on them the words: 'For the sale of

intoxicating liquors.' 'Against the sale of intoxicating liquors.' '(Erase the clause you do not want.)' It is further ordered that said election shall be conducted, the returns thereof made and the result thereof ascertained and determined according in all respects with the laws of this state governing general elections for county officers, and the result thereof shall be entered upon the records of this court and the expenses shall be paid out of the county treasury as in case of the election of county officers."

The point against the order is that it failAf-ed to state that the question at issue should be submitted to the qualified voters. The statute does not require the order to contain such statement. It provides that none but qualified voters shall be allowed to vote at such special election, and requires that an JOHNSON, J. The defendant was indict-order for such election shall be made only on ed, tried, and convicted in the circuit court the filing of a petition therefor, signed by of Chariton county for an alleged violation one-tenth of the qualified voters of the counof article 3, c. 63, R. S. 1909, commonly known ty. It is essential that the record show comas the Local Option Law. The offense is alleged to have consisted of a sale of beer to the prosecuting witness, J. W. Garrett, "on or about January 1, 1912, when said law was in full force and effect in said county."

[1] The first point presented by defendant for a reversal of the judgment is that the court erred in overruling his objection to the

pliance with these requirements (State v. McCord, 207 Mo. 519, 106 S. W. 27, 123 Am. St. Rep. 410), and compliance with them does appear on the face of the record in evidence. The order for a special election to be conducted "in all respects with the laws of this state" in legal effect was an order for an election at which none but legally qualified

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