text:
    TRUSTEES OF LOCAL 88, MEAT AND RELATED INDUSTRIES, HEALTH AND WELFARE FUND TRUST, Plaintiffs-Appellants, v. STATE TAX COMMISSION of Missouri, James A. Robertson, Commissioner, John A. Williams, Commissioner, and J. Ralph Hutchison, Commissioner, Defendants-Respondents.
    No. 49362.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1963.
    Motion for Rehearing or for Transfer to Court En Banc Denied May 13, 1963.
    David G. Dempsey and Eaker, Dempsey, Heath & Dempsey, Clayton, for appellants.
    Thos. J. Neenan, Thomas F. McGuire, Stephen M. Hereford, Gary M. Gaertner, St. Louis, for respondents.
   DALTON, Presiding Judge.

This is an appeal by the Trustees of Local 88, Meat and Related Industries, Health and Welfare Fund Trust from the order and judgment of the Circuit Court of the City of St. Louis, entered in a proceeding instituted in that court to review a decision of the Missouri State Tax Commission ruling and holding that certain real property in the City of St. Louis, owned by appellants, was not “actually and regularly used exclusively * * * for purposes purely charitable” within the meaning of Section 137.100 (6) RSMo 1959 V.A.M.S. and Article X, Section 6 of the Constitution of Missouri 1945, V.A.M.S., and hence that it was “taxable and should be on the tax rolls of the City of St. Louis as of January 1, 1959.” The Circuit Court affirmed the validity of the assessment of the mentioned property by the Assessor of the City of St. Louis, whose assessment, had also been affirmed by the Board of Equalization of the City of St. Louis.

The real estate in question is located at 4484 — 90 Forest Park Boulevard in the City of St. Louis. The improvements consist of a building referred to as “The Medical Institute Building” which was built from funds distributed by appellants from what is referred to as the Local 88, Health and Welfare Fund Trust. Appellants, as such trustees, own the property and manage and control the operation of the Medical Institute housed in the mentioned building.

There is no dispute as to the assessed valuation of the real estate and improvements. The assessor had assessed the property for the year 1959 as follows:

“Land .$ 7,920.00
Improvements .$200,000.00
TOTAL .$207,920.00”

The single issue presented for consideration on this appeal is appellants’ contention that under Article X, Section 6, Constitution of Missouri 1945 and under Section 137.100(6) RSMo 1959 the mentioned property is exempt from taxation because it is “actually and regularly used exclusively * * * for purposes purely charitable.” ■The issue is necessarily for determination ■under the peculiar facts of this case.

The purposes for which the mentioned Trust exists are stated in Article I of the Declaration of Trust, in part, as follows:

“The purpose of the Trust is to pay, either from principal or income, or both, for the benefit of employees as hereinafter defined, their families and dependents, for medical or hospital care, compensation for injuries or illness resulting from occupational activity, or insurance to provide any of the foregoing, * * * and to build, erect, maintain, equip, manage and operate a nonprofit health and medical center or hospital, camp or other installation, as is more fully provided in Article IV, Section 2(i) of this Declaration of Trust. The term ‘Employer’ used herein shall mean any Employer who agrees with the Union (or with any other union placing the administration of its welfare program in the hands of the Board of Trustees on these same terms and conditions) to make payments to the Fund for this purpose. * * * The term ‘Employees’, as used herein shall mean all Employees (including dependents) of an Employer on whose account the Employer makes payment to the Fund; a dependent is defined to be a wife of an employee and shall include a dependent child or children as defined by regulations of the Board of Trustees. * * * No employee or his eligible dependents as defined herein shall be eligible for benefits from the fund until the expiration of thirty (30) days after the first of the month succeeding the date of his admission into the program; and every participant upon whom premium payments shall have been made (and his eligible dependents) shall be granted a thirty-day extension of benefits after termination, premium for which shall be paid by the Trust.”

For convenience in further stating the facts, we shall first adopt a statement contained in an opinion by Thomas F. McGuire, Associate City Counselor, City of St. Louis, dated January 8, 1959 and addressed to Harold Jaeger, Assessor of the City of St. Louis, which statement was, at the hearing, admitted to be factually correct as to the situation existing on January 1, 1959 relative to the matter under consideration, and, second, we shall supplement this statement with such material facts as were presented in evidence at the hearing before the State Tax Commission on December 3, 1959.

The opinion states that the Executive Administrator of the Medical Institute of Local 88, stated that the following factual situation existed as of January 1, 1959, relative to the subject premises.

“1. The Meat Cutters Local No. 88, A.F. of L.-C.I.O., Medical Institute was incorporated under Chapter 352, Revised Statutes of Missouri, 1949, on April 25, 1956.

“2. The objects and purposes of the Medical Institute are as follows:

‘“The object and purpose of the Association shall be to own and operate a hospital completely equipped for all medical, surgical, hospital and dental attention, and therein and thereat to provide free medical, hospital and dental service, or either of such services as may be determined for meat cutters and butcher workers who are members of Local No. 88, A.F. of L., their wives and dependents. The Association shall be non-profitable but said Association shall collect from the members thereof, if and when, required, such funds and money as may be agreed upon and set forth in the By-Laws of said Association and to do and perform such other acts and things compatible with the purposes of said Association as above outlined and as may be permitted them by law to do and which shall be fully set forth in their By-Laws.’

“3. The Medical Institute has completed the erection of a building at 4484-90 Forest Park Boulevard in which is provided medical, surgical and dental services to the members of the Meat Cutters Local No. 88 of the A.F. of L.-C.I.O., their wives and dependents.

“4. Medical, surgical and dental services rendered by the Medical Institute are on an ‘out-patient’ basis as of January 1, 1959.

“5. The building is not used for any purpose other than for the medical, surgical and dental treatment of members of the Meat Cutters Local No. 88, their wives and dependents. The building and premises are not used for political, business or for purpose of pecuniary gain or profit of the members of the Meat Cutters Local No. 88. The use of this building by doctors on the staff of the Medical Institute for the treatment of patients other than members of Local No. 88, their wives and dependents, is not permitted in the building or on the' premises. The treatment rendered is limited to the members of Local 88, their wives and dependents.

“6. The Medical Institute engaged doctors and other personnel required in the medical, surgical and dental treatment of the members of Local No. 88, their wives and dependents.

“7. The Medical Institute is financed by funds contributed by the employers of members of Local No. 88, to the Management-Union Health and Welfare Fund pursuant to contracts negotiated between the employer and union governing wages, working conditions and ‘fringe’ benefits. Under these contracts the employer is required to pay into such fund a stipulated monthly amount for each member of Local No. 88 in his employ. This Health and Welfare Fund is under the administration, supervision and direction of five trustees, two' representing the union, two representing the employer and one selected jointly by the union trustees and the employer trustees.”

In the hearing before the State Tax Commission Nicholas M. Blassie testified that he was President of the Meat Cutters’ Union and also a Trustee Member of the Local 88, Meat and Related Industries Welfare Fund Trust; and that the fund was established in December 1952 and has operated since that time. He further said: “* * * we wouldn’t be able to get doctors into our Hospital unless they were allowed to cater to medication of humanity, and we invited and provided that, * * * we should receive the same treatment as others, — and nobody pays in our Organization.” (This testimony as to treatment of outsiders apparently conflicts with the admitted provisions of the Declaration of Trust which, it is conceded, controls the operation of the facility and it is also in conflict with the subsequent testimony of the witness, as follows:

“Q You are ‘bounded’ or ‘limited’ by this ‘Agreement and Declaration of Trust’; is that correct? A That’s right.
“Q The actual use of the property, we will say, then, is confined to — and I am saying ‘confined’ to the Members of the Local 88, is that correct? A —And their dependents.
“Q —And their dependents? A Yes.
“Q Then, from time to time, if someone is picked up in the street and brought in, your doctors will attend them?
“A Yes; that happens sometimes.
* * * * * *
“Q I see. But, is this true, we will say, 95% of the facilities are actually used by the Members and their families ?
“A And their families.
“Q —and their families, exclusively, is that correct?
“A Yes, sir.”

The record further shows:

“Q Your patients are only members of these Local Units of your Organization?
“A Not just limited to the Member— any member of that family is included.”)

The witness further testified that he periodically negotiates union contracts and, as a part of the contracts, he negotiates also “fringe benefits” for the employees, that is, per capita for such employees that work-forty hours per week; and that under present contracts the employer pays $29.70 per employee, and employee “includes both employees and dependents.” The $29.70 per employee (and dependents) that is', “per capita per worker” is paid into the Trust Fund. It is paid in on a monthly basis, that is, “the employer turns that over on a monthly basis” as a part of the “fringe benefits.” This fund when turned over to the trustees is used “to build the building, erect the facilities, hire doctors, nurses, technicians and other clerical personnel.”

As to how the program was supported, the witness further testified that it was supported “through the customer in the Meat Market buying foodstuffs, he supports it. * * This Health and Welfare Program, * * * that is negotiated with a working-late contract, it is part of our Union Contract but it is separate * * * he [employer] pays it into this Trust, and the monies that are paid by the Employer through this Labor Contract, which is part of it, that is how we acquire this Fund, the Employers pay it, legally,, to each Employee.” He further said that when a member of the union, or any member of that member’s family, comes to the Institute for examination or treatment there is absolutely no charge made to him.

The witness further testified: “ * * * we can’t charge anybody * * * because the employer would lose his Tax-Exempt Status on that.” This payment is all the “cost-of-doing-business” to the employer, indirectly, since it is the ultimate consumer who buys the meat. The payment is part of the employer’s labor cost.

The witness further testified that the facility (The Medical Institute) is operated at the present time on an out-patient basis; and that sometimes they had to keep a patient three or four hours and “under the law we have to provide hospital bed service.” The facility has all the equipment needed to operate on an out-patient basis, although it can keep a patient overnight, if he cannot be moved, and, accordingly, the facility has four beds. It was stated that the Medical Institute was “operating under the Trust Agreement, which is a non-profit organization * * * rendering medicál care to a segment of our society in the City of St. Louis.”

From the evidence and exhibits the State Tax Commission found that the funds to build, maintain, operate, and equip the aforesaid building, and to use and operate the facility as a clinic for the medical, surgical, and dental treatment of members of Local 88 and their dependents, was secured and supplied by contracts with employers of members of Local 88 through union contracts with Local 88; that in accordance with the terms of such union contracts between the employers and Local 88, the employers are required to pay into a fund the sum of $29.70, per employee per month, and these funds are used to operate, maintain, and equip the aforesaid building, and to hire medical and other personnel to render medical, surgical and dental services to the members of Local 88 and their dependents. As a conclusion of law, the State Tax Commission found that the “subject property was not used, as of January 1, 1959, exclusively for religious worship, schools or colleges, or for purposes purely charitable, within the meaning of Section 137.100, Revised Statutes of Missouri, 1949, and Section 6, Article X of the Constitution of Missouri, and is taxable and should be on the tax rolls of the City of St. Louis as of January 1, 1959.”

Appellants contend that the court erred in affirming the decision of the State Tax Commission. Appellants and respondents rely upon the same statute and constitutional provision.

Article X, Section 6 of the Constitution of Missouri 1945, dealing with exemptions from taxation, in part, provides: “ * * * all property, real, and personal, not held for private or corporate profit and used exclusively for religious worship, for schools and colleges, for purposes purely charitable * * may be exempted from taxation by general law. All laws exempting from taxation property other than the property enumerated in this article, shall be void.”

The statutory provision relied upon is Section 137.100(6) RSMo 1959, which, in part, provides: “All property, real and personal actually and regularly used exclusively for religious worship, for schools and colleges, or for purposes purely charitable, and not held for private or corporate profit shall be exempted from taxation for state, city, county, school, and local purposes * ‡ ‡»

In support of their position on this appeal, appellants first state that their “property is used solely to provide free medical, dental and surgical care to members of Local 88 and their families”; and that “in so doing the Medical Institute makes it more likely that they will become more healthy and useful citizens and less likely that [they] will need the benefits of public institutions or governmental assistance.”

Excluding the word “free”, we agree that it clearly appears from testimony offered and from controlling documentary evidence that the property in question is, in fact, used and can only be used to provide “medical, dental and surgical care to members of Local 88 and their families.” While there is no evidence whatever in support of the second point, nevertheless we may assume that the Medical Institute renders a beneficial service, which may result as indicated.

Appellants’ counsel stated to the State Tax Commission that “we serve any one in cases of emergency there”, and witness Blassie, as stated, testified that “we wouldn’t be able to get doctors into our Hospital unless they were allowed to cater to medication of humanity, and we invited that and provided that, * * * we should receive the same treatment as others, — and nobody pays in our Organization.” Assuming that the statement and testimony is correct, it is not controlling on the issue here presented in view of the provisions of the Declaration of Trust and other admitted facts and written documents.

Appellants further insist that “the operation of the Medical Institute is entirely non-profit * * With that statement we must agree, since the evidence supports the contention and there is no evidence whatsoever to the contrary. However, the fact of “non-profit” is only one of the several requirements of the statutory and Constitutional provisions necessary to authorize the exemption of the property from taxation.

Directing attention now to appellants’ further printed argument in support of their ■claim that the property occupied by the Medical Institute is entitled to exemption from taxation, we find that appellants, with commendable frankness, have stated the precise issue for decision as follows: “At the very heart of the problem, then, is the method of operating and financing the Medical Institute. Seen in this light the ultimate issue to be decided by this Court is whether appellants’ property is non-exempt because : (1) participation in the free medical services is restricted to union members and their dependents, and (2) financing of the Medical Institute is obtained from a trust fund which receives its revenues from employers of the union members pursuant to collective bargaining agreements.”

Appellants further insist that their property is “clearly used for purposes purely charitable” within the meaning of the mentioned statute and constitutional provision. The record does not factually support that conclusion. We find no evidence that the property is exclusively used for purposes “purely charitable,” instead, it clearly appears from this record that Local 88, by contract with the employers of its members, has required the employers to. provide the necessary funds which the trustees have used, and were required to use, to build the Medical Institute building, to equip it and to provide the medical, dental and surgical care now furnished to members and their dependents. In other words, it clearly appears from the record in this case that Local 88, by contract with the employers of its members, have required employers to pay over additional funds for their services, which funds are referred to as “fringe benefits”, and which are, in fact, only additional compensation for services rendered by the employees (members of the union) to their employers. This compensation is not “a free donation” by the employers to the employees for the purpose of providing the medical, dental and surgical care to members of Local 88 and their dependents, but the payments are actually made under written contracts negotiated with employers who provide the funds for the so-called “free medical, dental and surgical care.” We find no charity about it. It is just a method of collecting, on behalf of employee members of the union, additional sums for services rendered employers and using such sums to provide and pay for the “medical, dental and surgical care.” It is in no sense “free” since it is paid for out of a portion of their own earnings. As stated, the employee members of Local 88, through the union and by contracts negotiated with employers, receive “fringe benefits” as compensation for services rendered and, under such contracts and under the Declaration of Trust, the Trustees are required to use the money so obtained to furnish and pay for the medical and dental services which the union members and their dependents may require. Further, the medical, dental and surgical care furnished, is not furnished employee members on a basis of financial need or by reason of inability to pay for such services. Instead, all members in good standing and within the provisions of the Agreement and Declaration of Trust are equally entitled to the benefits of the services provided by the Medical Institute.

Appellants argue that “many cases have listed relief from suffering and disease as one of the most traditional and prominent forms of charity”, but they neglect to add that the rule does not necessarily apply where the relief from suffering and disease is provided for by contract with the employer of the one receiving the relief so that the one receiving the relief is not obtaining a gift or charity, but is only obtaining what he has contracted to receive, as a part of the payment for his own labors under the term “fringe benefits.” Appellants do state that “no Missouri case has ever considered the precise issue before this Court”, but claim it has been decided in Kansas and in Texas.

Before dealing with the specific decisions upon which appellants rely to support their contention of error, perhaps we should say that appellants rely upon their statement, not supported by evidence, that “the operation of the Medical Institute * * * is essentially the same as that of private hospitals, particularly railroad hospitals, and other organizations which have had a tax exemption status approved by this Court or courts of other jurisdictions.”

Appellants in their hearing before the State Tax Commission stated that “a federal income tax exemption status” was granted by the Internal Revenue Service of Washington, D. C.; that the decision (evidenced by a letter offered in evidence) was affirmed as late as November 23, 1959; that the Medical Institute had been granted the status of a “hospital” under the zoning requirements of the City of St. Louis; that “all hospitals are placed on tax-exempt basis in the City of St. Louis,” including all “organizations in St. Louis who serve, medically, specific groups of persons within our society,” including the Missouri Pacific Hospital; that “all Clinics are placed on an Exemption-from-Tax-Status,” including nursing homes such as “Mary Ryder, Wohl, and Barnard Clinic, * * * and many others”; that appellants’ investigations disclose “several Institutions here that were * * * profit-making Institutions * * * had Tax-Exempt Status”; that these are “Missouri Pacific Hospital, Park Lane Hospital, and other Hospitals who make charges and are in business for profit”; and that these several institutions have a tax-exempt status from the U. S. Treasury Department and also from the City of St. Louis. Somewhat the same argument is made in this court, to wit, that appellants should “be given the same treatment” as others.

The record, of course, fails to contain the evidence upon which a tax-exempt-status was granted to any of these several institutions, however in deciding this case, we are limited to the specific facts shown by this record with reference to the specific property owned by appellants and the specific use made of it by them. On these facts we must determine whether this specific property is subject to tax exemption under the specific provisions of the Constitution of Missouri and the specific applicable state statute. What has been done or may be done in other instances and under other circumstances is not controlling on this court, since we are bound by the evidence in this case with reference to the specific property sought to be held exempt from taxation.

Appellants cite the case of Fitterer v. Crawford, 157 Mo. 51, 57 S.W. 532, 50 L.R.A. 191. In that case exemption was denied because a portion of the building sought to be exempted was rented for commercial purposes. The court also stated the rule with regard to the construction of laws exempting property from taxation, to wit, that the burden of proof rested on claimants seeking exemption and that a strict construction of an exemption statute was required. The court said: “In the construction of laws exempting property from taxation it is a cardinal principle that they must be strictly construed. As a rule all property is liable to taxation, exemption the exception, and it devolves upon the person claiming that any specific property is exempt to show it beyond a reasonable doubt.”

The court also made an obiter statement, which this court in the case of In re Burroughs’ Estate, 357 Mo. 10, 206 S.W.2d 340, 344, 174 A.L.R. 524; said was “in harmony with the trend of this court’s opinions in later cases.” The obiter statement was to the effect that: “ ‘Our conclusion is that Masonic lodges are organized for charitable and benevolent purposes, with no incentive to private or corporate gain, but whose revenues derived from whatever source they may be, are applied to the payment of their current expenses, and the relief of their afflicted and needy members and their families; and, although their charity is restricted to such use, they are charitable institutions.’ ” (Italics ours.) (57 S.W. 532, 535.)

In the case of A. T. & S. F. Hospital Ass’n v. State Commission of R. & T., 173 Kan. 312, 246 P.2d 299, decided July 3, 1952, the Kansas Supreme Court held that a hospital owned by the plaintiff Association was used exclusively “for charitable and benevolent purposes” and was exempt from taxation in that state. The hospital in question, having 175 beds, had been built in part with large contributions from the railroad company and the company had continued to contribute large sums to its operation, maintenance and improvement. No part of the property was used for other than hospital purposes. All employees of the railway company and of the hospital association were compelled by the railroad to become members of the hospital association and were required to pay monthly dues computed on a bracket system based upon their respective earnings. The court reversed the finding of the Tax Commission, which had held that the hospital was operated as a private institution in a manner equivalent to a compulsory group hospital plan, available only to members who were also employees of the railroad company and who were required to become dues-paying members of the Association; that the hospital was maintained solely for the benefit of the railroad company and its employees and was not a benevolent and charitable institution ; that its property was not exempt from taxation- as property “used exclusively for bfenevolent and charitable purposes.” The theory upon which the State Tax Commission decided the matter was also said to be on the basis that it was an exclusive affair, with the public barred from the use of the facilities, and that it was “comparable to an exclusive club with the benefits accruing only to its closed membership.” In reversing the Tax Commission the Kansas court held that the statute and the constitutional provisions of that state based exemption upon the u~se of the property. The court disregarded other admitted features of the evidence and treated the case as showing the operation of a charity comparable to those that provide for the care of the poor and dependent, the aged and the infirmed, orphans and those in financial distress. The court ignored the fact that, except for the voluntary contributions by the railroad, the dues-paying members of the Association were merely paying for the services that they were entitled to receive in return for their payments.

In the case of City of Palestine v. Missouri-Pacific Lines Hospital Ass’n, Court of Civil Appeals of Texas, Amarillo, 99 S.W.2d 311, 314, the court held that a hospital association which had been established by a railroad for its employees, which was maintained by monthly deductions from employees’ wages, served employees of various railroads and families without charge, and which treated, in return for compensation by a railroad company, passengers and others injured by railroad trains, was an institution of “purely public charity” and exempt from taxation. The court made much of the fact that the hospital was not operated for gain or profit and that it accomplishes ends wholly benevolent, and benefits persons indefinite in numbers by preventing them, “through absolute gratuity,” from becoming burdens to society or to state. The building was built by the railroad and given to the hospital association.

Appellants have also cited the following Missouri cases: Salvation Army v. Hoehn, 354 Mo. 107, 188 S.W.2d 826; Young Men’s Christian Ass’n v. Sestric, 362 Mo. 551, 242 S.W.2d 497; In re Burroughs’ Estate, supra, 206 S.W.2d 340 and St. Louis Gospel Center v. Prose, Mo.Sup., 280 S.W.2d 827. We do not find these cases controlling under the facts in this record.

Appellants insist that the Kansas and Texas cases relied upon “are squarely in point”; and that “the only distinction between them and the instant case is that the railroad hospitals were apparently organized by the railroad companies, whereas the guiding spirit behind the Medical Institute was a labor union.” Appellants also insist that the payments to their Health and Welfare Fund Trust were voluntarily made, as were the railroads’ contributions in the Kansas and Texas cases. Appellants state that “The employers enter into these '[“fringe benefit”] contracts voluntarily and in that sense the payments made to the trust fund are ‘voluntary’ ”; and that “They •are just as voluntary as the payments made hy the various recipients of services in the .[Kansas and Texas] cases above cited.”

In both the Kansas and Texas cases the railroads had made large voluntary contributions to the respective associations for the construction, operation and maintenance ■of the said hospitals. No similar facts appear in evidence in this case. However, we •do not agree with the reasoning and conclusions reached on the facts in either of said ■cases and we decline to follow them. Further, as hereinbefore stated, the contributions of the employers in this case to the Health and Welfare Fund Trust were made under contracts negotiated between the employers and the union, representing the employees. The payments represent “fringe benefits” negotiated at the time wages and ■other terms of employment were entered into, and the so-called contributions hy the ■employers are, in fact, additional compensation for services rendered by the employees.

On the facts shown by this record, the property in question is not “actually and regularly used exclusively for * * * purposes purely charitable,” but is used in accordance with business arrangements and contracts between the parties. Phillips v. St. Louis & San Francisco R. Co., 211 Mo. 419, 435, 111 S.W. 109, 112-113, 17 L.R.A.,N.S., 1167.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: WESTHUES, Judge.

license: Public Domain

text:
    Clara REPHLO, Plaintiff-Appellant, v. John F. WEBER, Defendant-Respondent.
    No. 49540.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1963.
    Rehearing Denied May 13, 1963.

      Sherman Landau, St. Louis, for appellant.
    Luke, Cunliff, Wilson, Herr & Chavaux, by Robert R. Schwarz, St. Louis, for respondent.
   WESTHUES, Judge.

Plaintiff filed a petition in the Circuit Court of the City of St. Louis, Missouri, against the defendant wherein she asked for $65,000 as damages for personal injuries alleged to have been sustained when defendant’s truck struck her car which she was driving at the intersection of Alfred Avenue and Magnolia Avenue in St. Louis, Missouri. A trial resulted in a verdict and judgment for the defendant. A motion for new trial was overruled and plaintiff appealed from the judgment against her.

On this appeal, the plaintiff in her brief claims error was committed by the trial court in giving, at defendant’s request, instructions numbered 6, 7, and 8, and in that the court erred in rejecting plaintiff’s offer to introduce as evidence Ordinance No. 831.020, relating to right of way of vehicles at intersections.

Defendant contends the court did not err as claimed by the plaintiff and makes the further contention that the trial court should have directed a verdict for the defendant on the ground that plaintiff failed to make a case for a jury.

The evidence of plaintiff supports the following statement: The collision causing plaintiff’s injuries occurred at about 5:30 p. m., on November 13, 1960, at the intersection of Alfred and Magnolia Avenues. It was dark at the time and the lights of both vehicles were operating. Alfred is a north-south street, 30 feet in width; Magnolia is an east-west street, 40 feet in width. On Magnolia, there are two lanes for westbound traffic and two lanes for eastbound traffic. Alfred does not extend southward beyond Magnolia, thereby forming a “T” intersection with Magnolia. There is a stop sign on Alfred but no such sign on Magnolia. Plaintiff, driving south on Alfred intended to make a left turn and go east on Magnolia. The defendant was driving his truck west on Magnolia. Plaintiff testified that she stopped her car at the stop sign which was about IS to 18 feet north of the north curbline of Magnolia; that she saw headlights of a motor vehicle approaching from the east and that it was then more than 300 feet to the east; that she stopped a second time at the north curbline of Magnolia and noticed no cars approaching from the west on Magnolia; that in looking east, she saw defendant’s truck about 200 feet from the intersection; that she then proceeded to drive into the intersection and when the front of her car had crossed the center of Magnolia and was in the act of turning east in the north lane going east, her car was struck on the left rear side by defendant’s truck; that her car was turned completely around. She testified further that the truck was being driven about the center of the westbound lanes and did not turn to the north before striking her car; that the truck left skid marks for a distance of about 40 feet.

The defendant testified that as he approached the intersection he saw plaintiff’s car standing still at the stop sign; that he slackened the speed of his truck very little and was driving at about 30 m. p. h.; that when he was about two car lengths from the intersection plaintiff drove her car into the intersection and he, defendant, immediately hit the brake and turned to the right but was unable to avoid a collision. Defendant testified he could stop the truck traveling at 30 m. p. h., within 100 feet. All parties agree that no other traffic was near the point of collision to interfere with either plaintiff’s car or defendant’s truck.

The cause was submitted to a jury on primary and humanitarian negligence. The specific submission, as contained in instruction No. 1, was that if the jury found the defendant “failed to timely slacken the speed of his truck and that he failed to angle his truck toward and into the northernmost lane of Magnolia Avenue, if you so find, and that in so failing, the defendant failed to exercise the highest degree of care and was negligent, and that such negligence directly caused the collision and the injuries, if any, to Mrs. Rephlo, and that she was at all times shown in evidence exercising the highest degree of care for her own safety, then your verdict will be in favor of the plaintiff, Mrs. Clara Rephlo, and against the defendant, John F. Weber.”

We are of the opinion that the evidence was sufficient to submit the case to a jury. Defendant testified that he could have stopped his truck within 100 feet at the rate of speed he was traveling. Plaintiff’s evidence was that when her car began to move into the intersection defendant’s truck was about 200 feet to the east. Plaintiff’s car was struck at a point on the left rear side. Under the evidence, a jury could well have found that had the defendant slackened the speed of his truck and swerved to the right no collision would have occurred. The trial court did not err in refusing to direct a verdict for the defendant. This is so evident that citation of authorities is not necessary.

We are also of the opinion that plaintiff has a meritorious complaint with reference to instruction No. 7 which the court gave at defendant’s request. This instruction reads: “The Court instructs the jury that the defendant, John Weber, was not required to swerve or slacken the speed of his motor vehicle at such time when Mrs. Rephlo was stopped at the north side of Magnolia Avenue but was only required to take such action when he saw or in the exercise of the highest degree of care could have seen her leave the stopped position at the north side of Magnolia, and if you find and believe from the evidence that at the time the plaintiff left her stopped position at the north side of Magnolia and entered the intersection, if you so find she did, and further find that at such time the defendant Weber, in the exercise of the highest degree of care, could not avoid the collision by slackening the speed of his motor vehicle, then the Court instructs you your verdict must be in favor of the defendant Weber.”

In the brief, plaintiff says of this instruction that it erroneously “circumvented and ignored plaintiff’s submission of slackening and swervingIn the argument portion of the brief, plaintiff says that “even though the jury might have found that defendant had the time and space within which to slacken and swerve, and could thereby have averted the collision, the jury was directed to return a verdict in favor of defendant if it found that slackening alone, without swerving, would not have averted the collision. This was error, and it was prejudicial to plaintiff.”

In defense of the instruction defendant says in his brief, under Points and Authorities, “Instruction No. 7 is a proper converse instruction under both the humanitarian and primary submission offered by plaintiff and under the facts of this case is not subject to the attacks made by the plaintiff herein for the following reasons:

“(a) There is no obligation to slacken the speed or swerve or change the course under either the humanitarian submission or under primary negligence until imminent peril or apparent danger of collision and it is, therefore, correct to preclude anticipatory action.

“(b) Instruction No. 7 is a true converse instruction to both the primary and humanitarian submission made by the plaintiff and as such the facts submitted are a sufficient hypothecation and the instruction is correct in this respect.

“(c) The instruction properly attacks the conjective submission of slackening and s*verving by attack of one of the essential elements of plaintiff’s directing instruction.” (Citations omitted.)

In the argument of the brief, defendant stated that “The next charge which the plaintiff erroneously levels at Instruction No. 7 is that it attacks only a single predicate of the submitted conjunctive liability submission. The plaintiff is in error with this charge. It used to be the law but it is no longer the law and properly so. The courts had long recognized in the plaintiff’s submission of this type of conjunctive submission that it was essential for that submission to be technically correct; that the plaintiff plead and prove each essential element of each predicate of liability and if the evidence did not substantiate each predicate of liability, the instruction was erroneous.” The case of Lindquist v. Kansas City Public Service Co., 350 Mo. 905, 169 S.W.2d 366, is cited in support of defendant’s assignment. Therein, the plaintiff claimed that she was injured while a passenger on a bus of the defendant. In her petition, she charged that the operator of the bus was guilty of a number of acts of negligence. These charges of' negligence were stated con-junctively and at plaintiff’s request were SO' submitted to a jury. At defendant’s request, the trial court gave a burden of proof instruction informing the jury that the plaintiff was required to prove each and every allegation of negligence submitted. . This court held the instruction proper. That case and the ruling therein made do not fit the situation present in the case now before us.

In the present case, the court at plaintiff’s request informed the jury that if the defendant could have in the exercise of the highest degree of care avoided the collision by slackening the speed of his truck and by swerving to the north then a verdict for plaintiff was authorized. At defendant’s request, the jury was told by instruction No. 7 that if the defendant in the exercise of the highest degree of care could not have avoided striking plaintiff’s car with his truck by slackening the speed thereof, then the verdict for the defendant was authorized. It is our opinion that there is a clear conflict in the instructions and that instruction No. 7, given at defendant’s request, is prejudicially erroneous.

It is common knowledge that often collisions may be and are avoided by drivers of motor vehicles by slackening the speed and at the same time swerving the vehicle; that in many such cases both actions are necessary to avoid contact. The evidence before us now was sufficient and was such that a jury would have been justified in finding that the defendant in the exercise of the highest degree of care could have avoided the impact by slackening and swerving.

Plaintiff complains that the trial court erred in not permitting the introduction of an ordinance, No. 831.020, which reads in part as taken from plaintiff’s brief: “ ‘All drivers shall: * * * (7) Reduce speed at intersections and yield the right-of-way to any vehicle already within the intersection, and when entering at the same time shall yield to the vehicle on his right.’ ”

The evidence was that Magnolia Avenue was a through street with no stop signs at its intersection with Alfred Avenue. There was a stop sign at Alfred Avenue. A portion of Ordinance 839.010, admitted in evidence, reads as follows in defendant’s brief: “ ‘Major Streets. — Stop signs shall be erected and maintained by the traffic commissioner at every street intersecting with a lawfully designated major street. Every driver shall stop at such sign and yield the right-of-way to drivers and pedestrians upon such major streets and shall not proceed through the intersection or into the major street until safe to do so.’ ” It is apparent that the trial court did not err in ruling that Ordinance No. 831.020 was not admissible.

Other points briefed need not be considered. They are not likely to occur on retrial of the case.

For the error in giving instruction No. 7, the judgment is reversed and the cause remanded for retrial. It is so ordered.

All of the Judges of the Division and STORCKMAN, Special Judge, concur.


author: BOHLING, Commissioner.

text:
    CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, a Corporation, Appellant-Respondent, v. NORTH KANSAS CITY, Missouri, a Municipal Corporation, Respondent-Appellant.
    No. 49190.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied May 13, 1963.

      Andrew C. Scott, Chicago, Ill., Arthur R. Kincaid, Liberty, Clyde J. Linde, Kansas City, for plaintiff-appellant; Eldon Martin, C. W. Krohl, Chicago, Ill., Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, of counsel.
    John B. Ewing, Jr., James E. Lockwood, Kansas City, S. Preston Williams, William Harrison Norton, North Kansas City, for defendant-appellant; Brenner, Wimmell, Ewing & Lock wood, Kansas City, of counsel.
   BOHLING, Commissioner.

The City of North Kansas City, Missouri, a municipal corporation, herein referred to as “City,” invoking the provisions of RSMo 1939, §§ 7530-7536, sued the Chicago, Burlington & Quincy Railroad Company, an Illinois corporation and herein referred to as “Railroad,” in the Circuit Court of Clay County, Missouri, to obtain reimbursement for the cost of constructing approximately 514 feet of a subterranean combined sanitary and storm sewer, 10 to 18 feet below the surface of the ground, under and across the Railroad's North Kansas City train yard. Railroad, a nonresident, removed the cause to the United States District Court for the Western District of Missouri. Chicago, B. & Q. R. Co. v. City of North Kansas City, 8 Cir., 276 F.2d 932. Briefly stated, the Railroad’s answer presented defenses, among others, that said statutes did not apply in the circumstances .of record; that they took defendant’s property without due process of law (Mo.Const. 1945, Art. I, § 10, V.A.M.S.), and constituted a local or special law when a general law could have been made applicable (Mo. Const.1945, Art. Ill, § 40(30)), and also that said statutes contravened provisions of the Constitution of the United States. Upon trial, the City secured a judgment of $138,475.62. Cross appeals resulted. The United States Circuit Court of Appeals for the Eighth Circuit dismissed the City’s appeal, vacated the judgment upon the Railroad’s appeal and remanded the case to the District Court with directions, applying the doctrine of abstention under which in appropriate instances a case in a federal court may be stayed pending a reasonable opportunity for a state court to pass on the applicability of a state statute to the facts involved and, if involved, the validity of the statute under the state constitution before ruling federal constitutional issues presented. Chicago, B. & Q. R. Co., supra 1. c. 937[2], 940[7-9]. The mandate, so far as material here and in accord with the opinion, reads:

“On Consideration of the appeal of the Chicago, Burlington & Quincy Railroad Company, It is now here Ordered and Adjudged by this Court that the judgment of the said District Court be, and the same is hereby, vacated and the cause remanded to the District Court with instructions to afford the Chicago, Burlington & Quincy Railroad Company a reasonable opportunity to bring appropriate proceedings in the Missouri courts for the purpose of securing authoritative interpretation of section 7532 of Missouri 1939 Revised Statutes and for determination of the state constitutionality of said statute; the trial court to retain its own jurisdiction of this cause for further proceedings consistent with the views expressed in the opinion of this Court this day filed herein.”

The Railroad, complying with said mandate, instituted this declaratory judgment proceeding (RSMo 1959, V.A.M.S. §§ 527.-010-527.130; Sup.Ct.Rules 87.01-87.11, V. A.M.R.) to determine whether said § 7532 is applicable to the case pending in the United States District Court and, if it is applicable, its validity under the Missouri constitution. The trial court found the issues tried in favor of the City; that is* that § 7532 was applicable and the applicable provisions of RSMo 1939, §§ 7530--7536 did not contravene any Missouri constitutional provision. Cross appeals again resulted.

The City’s answer sought to expand the issues and have the whole case determined in the state courts on the merits in this proceeding. The Railroad’s motion to strike all the additional issues sought to be raised in the City’s answer was sustained. The City claims this ruling was erroneous. It need not be considered until the Railroad’s appeal has been disposed of.

The City invokes §§ 7530-7536, RSMo 1939 (§§ 1-8 of Laws 1909, p. 364); stressing § 7532 (§ 3 of said Act of 1909), and an agreement between the Railroad and the City of December 28, 1949, wherein the Railroad agreed to reimburse the City if held liable therefor by a court of competent jurisdiction. The Revision Committee of 1949 rearranged said sections, and they now appear as RSMo 1959, V.A.M.S., §§ 389.-670-389.690; said §§ 7530, 7531 and 7532-being ¶¶ 1, 2 and 3, respectively, of § 389.-. 670; § 7533 being ¶ 1 and § 7534 being ¶¶ 2 and 3 of § 389.680; and §§ 7535 and 7536. being ¶¶ 1 and 2, respectively, of § 389.690. The sense, meaning and effect of said statutes were not affected by such rearrangement. See Mo.Const.1945, Art. Ill, § 21; RSMo 1949, § 3.060; Kansas City v. Travelers Ins. Co., Mo.App., 284 S.W.2d 874, 878 and authorities cited. The “catch words” appearing in connection with the public statutes are not part of the bill. State v. Lawson, 352 Mo. 1168, 181 S.W.2d 508, 513[8].

The title of the act, Laws 1909, p. 364, states it is “for the purpose of facilitating the building of sewers in incorporated” Missouri cities having a population of 30,000' or less “and fixing the duties of” railroads. “in relation thereto, and providing penalties against them for * * * failure * * * to perform such duties * * *.”

Section 7530 (§■ 1 of the Act) makes-it the duty of railroads passing through such cities “to construct at their own expense, within the corporate limits of such village, town or city along the lines of their said railroads or railroad right of way, such sewers as shall be of sufficient capacity to at all times carry off all the surface water that may collect or accumulate along their right of way.”

Section 7531 (§ 2 of the Act) provides that such sewers be constructed in a substantial manner, specifies certain requirements and that they “shall be of sufficient volume and depth to carry off at all times all surface water, with such facility as to prevent at all times an overflow therefrom”; and have “good, safe wagon and foot crossings constructed over them.”

The City does not question that §§ 7530 and 7531 apply to the drainage of storm and surface water accumulating along railroad rights-of-way. Terminal R. R. Ass’n of St. Louis v. City of Brentwood, 360 Mo. 777, 230 S.W.2d 768; Chicago, B. & Q. R. Co. v. City of North Kansas City, 8 Cir., 276 F.2d 932, 934.

Section 7532 (§ 3 of the Act and stressed by the City) reads: “It shall be the further duty of all such * * * corporations to construct under their railways, from one side of their right of way to the other, such sewers as shall by the city council, board of aldermen or legislative body of such villages, towns or cities be deemed necessary to facilitate the proper drainage of such village, town or city as provided herein.”

Section 7533 (§ 4 of said Act) provides that when, by ordinance, it is deemed “necessary to construct any public or district sewer,” such city shall caufee to be filed plans and specifications for such sewer with its clerk, and cause a copy thereof to be served on the railroad involved, together with a notice to construct said sewer from one side of its right-of-way to the other within “not less than thirty days, and not more than three months” after the service of said notice.

Section 7534 (§ 5 of the Act) provides for the manner of the service of such notice, et cetera, and that: “Thereupon such person, company or corporation shall proceed to construct such section of the proposed sewer at their own expense.”

Sections 7534, 7535 and 7536 provide penalties for the failure by a railroad to construct such sections of a proposed sewer and impose liability for double damages from overflow occasioned by its failure to comply with the Act. See Atchison, T. & S. F. Ry. Co. v. Ross, W.D.Mo., 88 F.Supp. 451, 454[4].

Material facts have been stipulated by the parties.

In 1949 North Kansas City was a city'of the Fourth Class with less than 30,000 inhabitants. It was vested with authority to provide for drains and sewers and to levy taxes to pay therefor. (RSMo 1939, §§ 7197, 7181, 7182; RSMo 1949, §§ 88.670, 88.717, 88.720 respectively.) It took the following official action with respect to the sewer here involved.

By Ordinance No. 1460 adopted February 1, 1949, the City called a special election for submitting a proposition to increase the City’s indebtedness and issue $700,000 of negotiable general obligation coupon bonds, payable out of an annual tax levied in addition to other taxes, “for the purpose of acquiring rights of way, constructing, extending and improving the sanitary and storm sewer systems of said City.”

Ordinance No. 1469, adopted March 8, 1949, found and declared that said election resulted in favor of said $700,000 increased indebtedness and the issuance of said bonds.

By Ordinance No. 1470, adopted March 8, 1949, the City authorized the issuance of said $700,000 Sanitary and Storm Sewer general obligation bonds and levied an annual ad valorem tax on all taxable tangible property in the City for the discharge of the principal and interest of said bonds.

By Ordinance No. 1498, adopted May 24, 1949, the construction of a combination storm and sanitary sewer and sewage pumping station, to be known as the “26th Avenue Storm and Sanitary Sewer,” was authorized, the Board of Aldermen deeming “it necessary for sanitary purposes and for the purpose of providing for the disposition of storm waters”; and provided that the cost of “said combination storm and sanitary sewer and sewage pumping station be paid by appropriation from the fund established by the sale of the Public Sewer Bonds * * * authorized by Ordinance No. 1470.”

The City caused the plans, profile and specifications for the sewer referred to in Ordinance No. 1498 to be filed with its clerk on May 24, 1949, in conformity with RSMo 1939, § 7533.

July 19, 1949, by Ordinance No. 1510, the contract for the construction of all but the pumping station of the 26th Avenue Combined Storm and Sanitary Sewer System was awarded to C. S. Foreman Company, and a written agreement between said City and said Company was entered into on said date for the construction of said sewer.

The Chicago, Burlington & Quincy Railroad Company engages in interstate and intrastate commerce in Missouri. It owns 796 acres of land and other property within the City. Its yard extends north and south, borders the east side of and is parallel to the Missouri River, and has eighteen tracks lying parallel to the River. The parties agree that such tangible property has been and will be, along with the property of others, taxed for the payment of said bonds and interest (RSMo 1939, §§ 7198, 7367, now §§ 88.677, 88.100), and Railroad has paid said taxes as levied.

The 26th Avenue sewer begins at 21st and Howell Streets, extends north to 26th Avenue, proceeds westwardly about; we understand, 1J4 miles, passes under the Railroad’s property and terminates in an outlet in the Missouri River. The sewer pipe is 4-foot pipe at the beginning and 72-inch pipe across the Railroad yard and at the River.

The Railroad, in 1946, granted the North Kansas City Levee District a 58.5-foot permanent easement west of its tracks along the Missouri River for a flood control levee. The Army Engineers would not permit the contractor to go through the levee in an open cut, and the flow line of the sewer is 39 feet below the top of the levee.

Construction work began in August, 1949, at the Missouri River and was completed about June, 1951. It was determined about December 1, 1949, that the City had no easement over the Railroad’s yard and the contractor’s superintendent, when the construction approached the Railroad’s property, was told not to come on the property. On December 1, 1949, the Railroad was served with a notice to construct the sewer from one side of its right-of-way to the other “within thirty days” and with a copy of the plans, profile and specifications. This notice stated the sewer was designed to carry off “storm water” and “domestic sewage.”

Charles S. Foreman, the contractor, was informed there was some difficulty about the City’s right to go upon the Railroad’s property; and a letter from the Mayor of the City, dated December 7, 1949, directed him to stop work. On December 28, 1949, the City and the Railroad entered into an agreement concerning the controversies between them. The contractor resumed work on December 29 and completed tunneling under Railroad’s tracks April 16, 1950. He had no discussion with the City about and had no intention of giving up any part of his contract to construct the entire sewer.

The City and the Railroad wanted the construction work to proceed without prejudice to either party’s rights or contentions, and their written agreement of December 28, 1949, so far as deemed material here, was to the effect that the City was authorized to construct and maintain the sewer line across the Railroad’s yard; and that if it were finally determined by a court of competent jurisdiction that Railroad was obligated to construct said part of said sewer, Railroad would reimburse City for its reasonable costs in constructing the same.

Burlington Avenue (Highway 71) runs north and south, is higher than and approximately a quarter mile east of the Railroad’s right-of-way, and said right-of-way is higher than where the 26th Avenue sewer begins. The Court of Appeals found that Burlington Avenue formed a solid harrier between the train yard and a large portion of the 234-acre area served by the sewer, and that the natural drainage for the bulk of the area was not over the Railroad’s yard. There was testimony of some pond-ing of rain waters between Burlington Avenue and the Railroad’s property. The flow line of the sewer is westwardly and is 18 feet below the surface at the east property line of the Railroad. We understand the storm water at first entered the sewer at nineteen points, all east of Burlington Avenue, but some storm water now enters the sewer west of said avenue. On March 22, 1950, the City secured temporary permission from the Division of Health of Missouri to discharge sanitary sewage into the 26th Avenue sewer from 360 residences. Additional sanitary sewage connections have been made since completion of the sewer, and sanitary sewage was being carried by the sewer at the time of trial, July, 1961. For the City there was testimony that less than ½ of 1% of the capacity of the sewer was used for sanitary purposes. The Railroad adduced testimony that taking a normal rainfall for a year’s period, the storm flow would amount to approximately 70%, and the sanitary flow would amount to about 30%.

The City’s Mayor, Robert B. Scharz, testified the voters had authorized $2,843,-000.00 of revenue bonds on October 11, I960,, which included funds to carry out plans for a sewer to carry the sanitary sewage which had been and at the time of trial (July,. 1961) was being carried by the 26th Avenue sewer.

The contention by a city that the words-“further duty,” “such sewers” and “necessary to facilitate the proper drainage” in § 7532 and “any public or district sewer”' in § 7533 showed a legislative intent to and made a railroad liable under §§ 7530-7536,. supra, to construct any type of sewer, particularly a sanitary sewer, across its right-of-way was overruled in Terminal R. R. Ass’n of St. Louis v. City of Brentwood, 360 Mo. 777, 230 S.W.2d 768. We considered the reference to “drainage” of towns-in § 7532 to be against the City’s contention (l. c. 769), and any ambiguity as to the type of sewers included arising from any general reference to sewers in §§ 7532 and 7533 yielded to the rule of statutory construction “that specific designations will control over general terms.” We said: “Since these sections, 7530-7536, were all part of a single Act, we think they must be read and construed together. So considered, we think they all apply only to drainage sewers and that it was drainage of storm and surface water for which the Act was intended to provide.”

The words “as provided herein” in connection with facilitating “the proper drainage of such * * * town” in § 7532 refer to the drainage of surface water mentioned in § 7530 (the other section that imposes construction duties) if the Act be construed as a whole, as § 7532 is otherwise complete without “as provided herein.”

After considering other statutes, including RSMo 1939, §§ 7181, 7182, and 7367, we held in Brentwood (l. c. 770) that §§ 7530-7536 were adopted to provide for the drainage of surface water which might accumulate along or he obstructed by railroad structures and not to change the situation as to sanitary sewers and “that these railroads cannot be compelled to construct the proposed sanitary sewers across their rights of way and under their tracks.”

The provision for “good, safe wagon and foot crossings constructed over” the sewers, which are to be “cemented on their sides and bottoms” under § 7531, shows (Brentwood, 1. c. 768, 769) that open drains were intended. We doubt that the Legislature contemplated draining surface water up grade.

The Brentwood case (l. c. 770) further stated that sanitary sewers are much more complicated and costly than surface water drainage sewers, and if the Legislature had intended to include them, something more than drainage would have been mentioned. We think this observation well taken, and our credulity is somewhat taxed by testimony that the open drainage sewer contemplated by the statute on rather level terrain would be as costly as a sanitary sewer.

The statutory obligation of a railroad under §§ 7530-7536 is not based on a ratio of the flow of sanitary sewage to the capacity of a sewer or a ratio of its flow to the total flow. If §§ 7530-7536 “apply only to drainage sewers,” as stated in Brentwood (l. c. 769), then a combination sanitary and storm sewer would not be within the Act. We think the 26th Avenue sewer, which since construction has carried and still carries sanitary sewage with pipes buried at different depths underground and sewage pumping station to maintain the flow, not to be within the legislative intent of the Act of 1909 (said §§ 7530-7536). We conclude the Railroad is not liable for the construction of the City’s 26th Avenue sewer across its right of way.

We are also of opinion additional grounds exist for not placing the construction costs here involved upon the Railroad.

The Board of Aldermen of the City was vested with authority to provide for public and district sewers. RSMo 1939, §§ 7181, 7182, 7367. Under § 7181: “The board of aldermen may levy a tax on all property made taxable for state purposes over the whole city, to pay for” constructing public sewers. The City could act only through its authorized governing body, its board of aldermen, with respect to the establishment of its sewers. Barton County Rock Asphalt Co. v. City of Fayette, 236 Mo.App. 505, 155 S.W.2d 771, 774[6]; City of Nevada, to use of Gilfillan v. Eddy, 123 Mo. 546, 558, 559, 27 S.W. 471 [1]; 62 C.J.S. Municipal Corporations §§ 152, 153, pp. 312, 313.

The City by Ordinance No. 1460 submitted to the voters the proposition to increase its indebtedness and issue general obligation bonds in the amount of $700,000 “for the purpose of acquiring rights of way, constructing, extending and improving” its sanitary and storm sewer systems. The proposition was approved by the voters and the City authorized the issuance of said $700,000 of bonds and levied an annual ad valorem tax on all taxable tangible property for the discharge of the principal and interest of said bonds (Ordinance No. 1470). Ordinance No. 1498, authorizing the construction of the “26th Avenue Storm and Sanitary Sewer,” expressly directed that the costs of constructing said combination storm and sanitary sewer be paid from the funds realized by the sale of the bonds authorized by Ordinance No. 1470. Ordinance No. 1510, awarding the contract for the construction of the sewer, and the contract thereunder, did not exempt that portion of the sewer under the Railroad’s right-of-way from the contract awarded.

In these circumstances the City through its Board of Aldermen, with the approval of its citizens voting at a special election, stands committed to using said “26th Avenue Sewer” as a storm and sanitary sewer and the payment of its construction and the construction of its sewage pumping station out of the funds realized from the sale of the general obligation bonds authorized by Ordinance No. 1470. We find and are directed to no ordinance of the Board of Aldermen of the City attempting to change this situation. We know of and are directed to no authority vested in the Mayor, the City Attorney, or other person, without authorization by the board of aldermen, to make such a change and place the costs of constructing said storm and sanitary sewer on the Railroad.

This court abstains from determining constitutional questions that are unnecessary to a disposition of a case. Glidewell v. Hughey, Mo., 314 S.W.2d 749, 756 [10]; State ex rel. State Board of Mediation v. Pigg, 362 Mo. 798, 244 S.W.2d 75, 79[5], and see State ex rel. Kemper v. Kirby, 345 Mo. 801, 136 S.W.2d 319, 322, 124 A.L.R. 1331 (concurring opinion of Ellison, J.).

The case having broken on the Railroad’s appeal, there is no occasion to consider the appeal of the City wherein it sought to expand the issues for a determination of the whole case on the merits, embracing a money judgment in its favor. The curious are referred to Spector Motor Service, Inc. v. Walsh, 135 Conn. 37, 61 A.2d 89, 91 [4, 5, 21]; Annotations, 94 L.Ed. 879; 3 L.Ed.2d 1827; Harrison v. National Ass’n for the Advancement of Colored People, 360 U.S. 167, 177, 79 S.Ct. 1025, 3 L.Ed.2d 1152; Chicago, B. & Q. R. Co. v. City of North Kansas City, 8 Cir., 276 F.2d 932, 937[2]-940; 36 C.J.S. Federal Courts § 10(2), p. 52.

The judgment is reversed and the cause is remanded with directions to enter a judgment in conformity herewith.

BARRETT and STOCKARD, CG, concur.

PER CURIAM.

The foregoing opinion by BOHLING, C., is adopted as the opinion of the court

All of the Judges concur.


author: EAGER, Presiding Judge.

text:
    The CITY OF MOLINE ACRES, a Municipal Corporation, Respondent, v. Raymond L. HEIDBREDER and Marcella A. Heidbreder, Appellants.
    No. 49611.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied May 13, 1963.

      Hamilton & Armstrong, Aubrey B. Hamilton, St. Louis, for appellants.
    Val Terschluse and Frank J. Lane, Jr., St. Louis, for respondent.
   EAGER, Presiding Judge.

In this proceeding the City of Mo-line Acres, a municipal corporation, sought to enjoin the defendants from operating a two-family or multiple dwelling unit in an area zoned for single-family dwellings. The trial court issued a permanent injunction accordingly, giving defendants 120 days in which to comply. After an unsuccessful motion for a new trial, defendants appealed. A constitutional question has been present in the case throughout its course, hence our jurisdiction.

The controversy here had its birth in the adoption by the Village of Moline Acres of Ordinance No. 21 as its Zoning Ordinance, on June 6, 1950. At that time this Village, in St. Louis County, consisted of an area running about a mile north and south along Missouri Highway No. 99 (now No. 67) and extending approximately 800 feet to the east and 450 feet to the west, although narrowing down toward the south. This area lay generally between Chambers Road and St. Cyr Road. The record shows that at the time there were about forty residences and one filling station in the area, the homes being along the highway. The Trustees of the Village, fearing expansion in some form by one or more of their neighbors, decided that they wanted a “zoning ordinance” with the primary idea in mind that the entire territory should be maintained as a single-family residential district. Thereupon, the Trustees borrowed copies of some existing zoning. ordinances, read them, and asked an attorney "to submit to us a procedure”; thus, “we came to the conclusion that we wanted the entire village zoned residential, single family residential.” No consultant was employed, no plans were developed as such, no reports received, and no study or plan of land uses was made. So far as shown, there was no zoning map prepared or filed until at least 1956 when, by ordinance, the Village adopted a “new and reformed map.” A stipulation was made at the trial, however, “that there is no zoning map presently in existence.” There is a necessary inference here that in 1960 or 1961 the Village was regularly reclassified as a city.

Ordinance No. 21 was obviously prepared from other Zoning Ordinances, but with radical changes. The preamble follows much of the wording of §§ 89.020 and 89.-030; the ordinance placed “all of the territory of the Village” in a single district, namely, “District ‘A’, a Single Family Dwelling District,” except as it might be amended thereafter. The district was further defined as permitting churches, public schools, farms, parks and certain institutions. The same zoning was also applied to all annexed territory unless thereafter changed by amendment. The ordinance contained sundry definitions, regulations concerning subdivisions, miscellaneous regulations, and administrative provisions. There is nothing in the record to indicate that, prior to the adoption of the ordinance, the Trustees appointed a “Zoning Commission” as required by § 89.070, or that the procedure therein indicated was followed, i. e., a preliminary report, hearings, and final report. The ordinance itself contains several references to a “Zoning Commission,” and to the fact that certain matters should be submitted to it.

In this situation, defendants bought from a builder a nearly completed fifteen-room house in the Village about the end of January 1953; they moved in, together with Mrs. Heidbreder’s mother and father, in February. The house was planned and built for occupancy by two families or as two units; one unit consisted of eleven rooms, the other of four. Each had its own living room, kitchen, and bath facilities. There were separate outside entrances. There was a door in the common wall between the units; this was generally kept unlocked while defendants and Mrs. Heid-breder’s parents lived there. The building permit issued for this house was for a “single family dwelling,” but “as described in Blue Prints attached to application * * *.” Defendants bought the house without any inquiry concerning the zoning, did not see the building permit, and merely relied on the fact that the blueprints provided for two units. Defendants moved out in August 1960; from that time on the separate units were rented to different families. The larger one was ordinarily leased, the smaller one rented from month to month. A night latch was placed on the common door and the units were thereafter operated as wholly separate. In the fall of 1960 the neighbors began to complain to the City of the unkempt condition of the premises, of beer bottles scattered around, cars parked on the lawn at times, trash cans left outside, and other similar annoyances. One of these neighbors testified that there had been a total of thirteen different tenants in the property within the past year and a half, which Mr. Heidbreder denied. Supposedly the conditions had been remedied somewhat by the time of trial, but the neighbors who testified were completely dissatisfied with the fact of the multiple occupancy.

Defendants received letters from the City dated October 10, 1960, December 20, 1960, and January 27, 1961, complaining of their violation of the Zoning Ordinance, requesting compliance, and finally giving notice of impending legal action. This suit was instituted on March 20, 1961. Defendants filed a motion to dismiss which, among other things, raised the contention that the ordinance was invalid as a deprivation of defendants’ property contrary to the appropriate due process clauses. This defense was later preserved in an answer, as were also such other defenses as we shall discuss.

It has been more or less assumed in this record that plaintiff has made some annexation of territory since 1950, but the details are not shown. In order to complete the factual picture we should note the following amendments of the original 1950 Zoning Ordinance: 7 July 1953, County Zoning was adopted for any annexed areas, unless changed; 7 February 1956, an ordinance adopted a “revised and reformed” zoning map, and zoned two specific lots to “local business” or “commercial” use; 3 April 1956, there was added to Ordinance No. 21 a new section creating a local business district, stating the uses permitted and setting out certain regulations; 3 April 1956, again adopts “revised” map, and rezones a tract 405 feet x 575 feet from single family residence to local business (this was apparently, in whole or in part, within the original Village); 7 Aug. 1956, established several different classifications for the ground area of single family residences, and also a “local business” district; 3 March 1959, adds “retail gasoline station” to permitted business uses; 2 June 1959, rezones a tract 100x283 feet to local business (this was rather clearly a part of the original Village); 2 Feb. 1960, rezones 12 lots to local business (apparently in an annexed area); 7 Mar. 1961, certain permitted business uses added.

Essentially, the points made by defendants-appellants are: that the restriction of the whole of Moline Acres to a single use district, namely, single-family residences, was so arbitrary and unreasonable as to be violative of the due process clauses of the Federal and State Constitutions; that the ordinance was not adopted pursuant to a “comprehensive” plan as required by Chapter 89, RSMo 1949, and that these statutes did not and do not authorize the adoption of such a plan; also, that the City’s action is barred by laches and estoppel.

The City insists that it was incumbent upon defendants to prove that some part or parts of the territory were unsuited to residential uses and that they did not do so; that the plan adopted was “comprehensive,” and that the creation of more than one use district is permissive under our statutes, but not mandatory; in short, that the ordinance as originally adopted was entirely valid. The City also asserts that the doctrines of laches and estoppel are not applicable. The contention concerning the failure to show any “unsuitability” goes primarily to the question of reasonableness as opposed to arbitrary action on the part of the Trustees; and this, in turn, bears on the constitutionality of the ordinance, for the “zoning power does not extend to unreasonable or arbitrary intermeddling with the private ownership of property.” 58 Am.Jur., Zoning, § 21, p. 953. We shall not find it necessary to pass upon the constitutional question here, though incidental references will be made to certain cases in which the question was ruled.

We deem it unnecessary to recapitulate here the recognized principles which our courts follow in reviewing the validity of zoning ordinances. They are fully set out in the following cases: Downing v. City of Joplin, Mo., 312 S.W.2d 81; City of St. Louis v. Friedman, 358 Mo. 681, 216 S.W.2d 475; City of Richmond Heights v. Richmond Heights Memorial Post Benevolent Ass’n, 358 Mo. 70, 213 S.W.2d 479; Schell v. Kansas City, Mo., 226 S.W.2d 718; State ex rel. Christopher v. Matthews, 362 Mo. 242, 240 S.W.2d 934; Women’s Kansas City St. Andrews Society v. Kansas City (C.A.8), 58 F.2d 593. The City insists, and properly so, that one attacking the reasonableness of a zoning ordinance has the burden of proving it unreasonable. Downing v. City of Joplin, Mo., 312 S.W.2d 81. That point is, however, of no particular materiality in the view we take of the case.

There can he no doubt that our zoning enabling act, §§ 89.010 to 89.140, inclusive, constitutes the sole source of power and the measure of authority for cities, towns and villages in zoning matters. State ex rel. Nigro v. Kansas City, Banc, 325 Mo. 95, 27 S.W.2d 1030; State ex rel. Kramer v. Schwartz, 336 Mo. 932, 82 S.W.2d 63; Wippler v. Hohn, 341 Mo. 780, 110 S.W.2d 409; State ex rel. Luechtefeld v. Arnold, Mo.App., 149 S.W.2d 384. As said in Kramer, supra, at 82 S.W.2d loc.cit. 66: “We think it clear upon elementary principles that the Enabling Act of 1925, properly interpreted, must be treated as the measure of the power of Jefferson City to pass a valid zoning ordinance. The Enabling Act is a grant of a portion of the state’s police power, and the extent of the powers granted as well as the manner of their exercise must conform to the terms of the grant.” We look thus to the wording, the context, and the real purpose and intent of our enabling statutes.

Section 89.020 provides that: “For the purpose of promoting health, safety, morals,. or the general welfare of the community, the legislative body of all incorporated cities, towns and villages is hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes.”

Section 89.030 provides: “For any or all of said purposes the local legislative body may divide the municipality into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of sections 89.010 to 89.140; and within such districts may regulate and restrict the erection, construction, reconstruction, alteration or use of buildings, structures, or land. All such regulations shall be uniform for each class or kind of buildings throughout each district, but the regulations in one district may differ from those in other districts. (R. S.1939, § 7413)”

Section 89.040 provides: “Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the values of buildings and encouraging the most appropriate use of land throughout such municipality.” References will be made incidentally to certain other sections as the occasion may arise.

The ordinary concept of “zoning” is to “mark off into zones * * * to partition * * * by ordinance into zones or sections reserved for different purposes * * Webster’s Third New International Dictionary. Or, more technically, it is: “The division of a city by legislative regulation into districts and the prescription and application in each district of regulations having to do with structural and architectural designs of buildings and of regulations prescribing use to which buildings within designated districts may be put.” Black’s Law Dictionary, 4th Ed., citing cases. While the word “zoning” is not used as such in the sections just quoted, there are references in the Act generally to the Zoning Commission; and the title to the original Act (Laws 1925, p. 307 et seq.) included the phrase “to provide for the adoption of comprehensive zoning plans * * The Bench and Bar have very generally regarded this Act as our zoning law, hence the applicability of the plain and ordinary meaning of the words “zone” or “zoning.” In other words, a “zoning,” in its ordinary sense, does not mean the creation of one district or zone of a town, an area, or the world in general (as, for instance, we have Torrid, Temperate and Arctic Zones).

It is true that in Section 89.030 it is stated that the local legislative body “may divide the municipality into districts * * * as may be deemed best suited,” and thus may regulate within each district. The City here insists that the word “may” simply leaves the matter to the City’s discretion, — to create one district or more. We prefer not to treat this word as a thing separated from the aggregate of the statutory provisions. We do note, however, that the courts sometimes construe the word “may” as meaning “shall” when justice and good sense require. Section 89.040 specifically requires that all such regulations (i. e., the zoning) shall be made “in accordance with a comprehensive plan * * *,” and the wording of the section clearly indicates an intent to require a consideration of future conditions as well as those presently existing. Section 89.070 requires the appointment of a “Zoning Commission” which shall “recommend the boundaries of the various original districts” (a rather foolish requirement if the only boundary is to be the existing city limits) together with appropriate regulations; this Commission shall also make a preliminary report, hold hearings, and make a final report, until which latter time the legislative body may not act. (Italics ours.)

In State v. Huntington, 145 Conn. 394, 143 A.2d 444, loc. cit. 446, the court said in part: “ ‘A comprehensive plan has been defined as a general plan to control and direct the use and development of property in a municipality or a large part thereof by dividing it into districts according to the present and potential use of the properties.’ ” And that court further said, in regard to the mere adoption of existing uses, without defined zone boundaries, that such an attempt: “ * * * ■ without regard to considerations other than actual current uses, shows an utter lack of any plan for the orderly development of land uses in the town and renders the regulations pertaining to the uses in the purported districts meaningless. * * * ”

An illustration of a “comprehensive plan” appears in the case of Downing v. City of Joplin, Mo., 312 S.W.2d 81, where, although the use sought to be extended was on a street zoned “D” for local business, the court saw fit to consider also the residential zoning of the surrounding areas in arriving at the basis of its decision. The court said, loc. cit. 85: “Viewing the restriction on respondents’ property as a part of a comprehensive zoning plan, there can be no doubt of its validity.”

The City insists: that a plan such as this may be “comprehensive” where it includes the entire town, even though it establishes only one use district; that there was no necessity for hiring consultants or for a lengthy study, and that the Trustees were entirely capable of making the determination that the entire Village was suited to one-family residences, and to act accordingly. It is true that § 89.040 permits the consideration of the “character of the district” and of its suitability for particular uses. We are of the view, however, that, considering these statutes as a whole, in context, and considering their aggregate purpose and intent, it was never intended thereby to give to a municipality the power to adopt a one use district zoning ordinance encompassing the whole town. We do not quibble about the absence of a consultant; we are dealing with a lack of authority. Even if the whole village was then suitable for one-family residences, we have the necessary inference that its suitability in the future, (in whole or in part) for other uses was not adequately considered. Our construction of the enabling act is supported, we feel, by the established fact that within a few years the City found it necessary to begin rezoning or “spot' zoning” substantial parts of the area to “local business,” and that this included parts of the original Village, as well as annexed areas. We hardly need to say that a consideration in advance of the necessity for and the location of future business areas would be more fair and just to all concerned (including those who might build residences nearby) and certainly more in keeping with the intent of our statutes.

This, so far as we can find, is a matter of first impression in Missouri, and there are very few cases on the precise subject elsewhere. In Town of Hobart v. Collier, 3 Wis.2d 182, 87 N.W.2d 868, the court invalidated a single district residential zoning, largely on the ground of unreasonableness and consequent unconstitutionality. However, the decision was undoubtedly influenced by the fact that parts of the area were found to be unsuitable for residential purposes. There is much in the opinion, however, which is antagonistic to the concept of a single use zoning.

In Dowsey v. Village of Kensington, 257 N.Y. 221, 177 N.E. 427, 86 A.L.R. 642, where the court invalidated a zoning ordinance, it said in part, at 177 N.E. loc. cit. 430: “The village of Kensington is small in area, and the board of trustees have not attempted in the zoning ordinance to segregate in appropriate places within the village all the activities of communal life. They have relegated business- and industry to a very small section which the evidence shows is not adapted to business, and have excluded from the main portion of the village even residences excepting one-family detached houses.”

The case which is most often cited on this subject is Valley View Village v. Proffett (C.A.6), 221 F.2d 412. There the court declined to rule unconstitutional, as viola-tive of due process, a village zoning ordinance fixing a one-use residential district for the entire town. The town was “sparsely settled.” As we read the opinion, its primary ruling was on the question of constitutionality. However, the court did proceed to consider certain parts of the Ohio enabling statutes (similar in a general way to our own) and held that the ordinance constituted a sufficient compliance. In considering the words “may * divide” into districts, the court held that such a division, though mandatory upon the planning commission (due to somewhat different wording), was merely permissive as to the Village. Also, the court said there, in part, 221 F.2d loc. cit. 418: “Situations in which the legislative body of a municipality would even desire to put its entire area into but one use district are no doubt rare. Situations in which such an ordinance would withstand constitutional attack with respect to the impact upon particular property within the municipality are perhaps even rarer. We conclude only that, if otherwise permitted by the Constitution and statutes of the state, a one-use ordinance is not necessarily so arbitrary and unreasonable as in every case to be invalid.” An inherent difference in that case and ours, however, lies in the great emphasis placed there upon the “Home Rule Provision” of the Ohio Constitution, art. 18, § 3 to which the enabling statutes were expressly made subject ; that provision was as follows: “ 'Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws’ ” In view of the distinctions, the case is not overly persuasive here.

A case more or less in point, not cited by either party, is Connor v. Township of Chanhassen, 249 Minn. 205, 81 N.W.2d 789. It involved a single-use farm — residential zoning ordinance of a suburb of one of the metropolitan areas; the ordinance had been amended later to include business or industry. This ordinance was held valid in general as against constitutional objections, although invalid as to plaintiffs’ particular desired use. The court also considered certain phases of the Minnesota enabling statutes, but it seems to have done so as applicable merely “In support of the contention that the ordinance as adopted is unconstitutional, * * (loc. cit. 795.) While that statement may seem unusual, we note that apparently the sole submitted issue was the question of constitutionality. In that light, the case is probably distinguishable.

In view of the paucity of authority generally, and the differences in constitutional provisions, statutory provisions, and issues determined in the few analogous cases, we are not persuaded here by the decisions in the Valley View and Connor cases. It is our duty to interpret and declare the purpose and intent of our own statutes, absent any necessary constitutional inhibition, and this we have sought to do.

We note also that the record does not show the appointment of a zoning commission or the receipt by the Trustees of reports from it before taking final action on the ordinance. Section 89.070. This, in itself, would ordinarily be fatal. State ex rel. Kramer v. Schwartz, 336 Mo. 932, 82 S.W.2d 63. We do not rest our ruling upon this point, due to the fact that the record may possibly be deficient; that, however, seems improbable in view of the testimony developed from the then Chairman of the Board of Trustees, outlining what was and was not done.

The Trustees of the Village of Moline Acres had no authority to adopt its Ordinance No. 21, and that Ordinance was and is invalid. It is unnecessary, of course, to rule upon any contention of laches or estoppel. The judgment is reversed, with directions to the trial court to enter its judgment in accordance with the views expressed in this opinion.

All of the Judges concur.

      . All statutory references are to RSMo 1949 and V.A.M.S., the revision in effect in 1950; however, there have been no changes since in the applicable sections.