author: MASSEY, Chief Justice.

text:
    The CITIZENS NATIONAL BANK OF WACO et al., Appellants, v. Joe W. ALEXANDER, Assessor & Collector of Taxes for McLennan County, Texas, et al., Appellees.
    No. 16379.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 28, 1962.
    Rehearing Denied Jan. 11, 1963.

      Richey, Sheehy, Teeling & Cureton, and W. E. Cureton, Waco, for appellants.
    Dunnam, Dunnam & Dunnam, and W. V. Dunnam, Jr., Waco, for appellees.
   MASSEY, Chief Justice.

Suit was instituted by The Citizens National Bank of Waco and Walter G. Lacy, Jr., shareholder and as representative of all the shareholders in said bank. Suit was brought against Joe W. Alexander, Assessor and Collector of Taxes for McLennan County, Texas, the County of McLennan, and the County Judge and others constituting the Board of Equalization for said County. Plaintiffs’ attack was upon the method used by said Board in assessing the value of the shares of stock in The Citizens National Bank. It was the contention of plaintiffs that Joe Alexander, as Tax Assessor and Collector, acting in an arbitrary manner, adopted a- fundamentally wrong method for said assessment, as result of which each share of bank stock was treated as having the market value of $41.20, when each share of stock actually had a fair market value, in cash, in McLennan County, at the time of the assessment, of $25.00 per share. Like complaint was made of the action of the Board in adopting the figure of $41.20.

Trial was to a jury. In the charge the term “fair market value” was defined as the price which could be obtained therefor at private sale, and not at forced or auction sale, at the place where the property, to which the term is applied, shall be at the time of such assessment. The jury found that the shares of stock in question did have a fair market value in McLennan County on January 1, 1961, that said market value, in cash, was the amount of $41.20 per share, and that the Board of Equalization of Mc-Lennan County, in assessing the taxable value of the shares of stock of said bank for the year 1961, did use the fair market value, in cash, of such stock as the basis for making such assessment.

Based upon said verdict, judgment was rendered that plaintiffs recover none of the relief for which they prayed, and the Board’s valuation and assessment was in no respect altered.

In our review of the action of the trial court we take note that plaintiffs were attacking directly the valuation fixed upon the shares of stock by the Board of Equalization. They desired a declaration that a fundamentally wrong method and scheme for assessing the value thereof had been adopted to their material injury, and an injunction.

It is now well settled that the assessment of property for tax purposes is a quasi-judicial function of boards of equalization and that no attack on valuations fixed by such boards can or will be sustained in the absence of proof of fraud, want of jurisdiction, illegality, or the adoption of an arbitrary and fundamentally erroneous plan or scheme of valuation; — and that when there is an attack upon official action of such boards it will be presumed that the boards discharged their duties as public agencies according to law, and that they acted in good faith. State v. Whitten-burg, 1954, 153 Tex. 205, 265 S.W.2d 569, and cases cited.

In the instant case plaintiffs failed to overcome the presumption that the Board of Equalization of McLennan County acted in good faith and discharged its duties as such public agency according to law. It is true that plaintiffs made out a prima facie case that a different valuation placed upon the shares of stock would have been proper, but such evidence would not establish that the valuation placed upon said shares by the Board was improper.

Plaintiffs having plead that the Board adopted a fundamentally wrong method of assessment, resulting in a valuation prejudicial to their interests, their cause of action could not be said to have been established if there was wanting in their evidence proof of the principle or method the Board actually used in making the assessment. Proof in this respect was not made, and neither was it established that evidence considered by the Board did not include evidence of cash stock sale transactions on or about the date as of which the market value of the stock was determinable. By way of stipulation was shown the extent of the evidence introduced before the Board by plaintiffs but there was no evidence showing the extent of the evidence placed before the Board by McLennan County. We do know that Joe W. Alexander, McLennan County Tax Assessor and Collector, did testify.

Should we assume that the whole of McLennan County’s evidence before the Board was that of Mr. Alexander we believe that his opinion upon the matter of value, per share, of plaintiff’s stock was properly admitted as having probative force and value sufficient for a decision of value to be founded thereon.

In the trial court Mr. Alexander testified that he was experienced in the determination of market value of property of the nature of plaintiffs’ stock in McLennan County, Texas. He was allowed to give his opinion of the value. Additional evidence showed generally that for the calculation he actually made of the value per share of plaintiffs’ stock when he proceeded to perform his duties as assessor of taxes he actually took plaintiffs’ own figures concerning the total value of their whole property (ownership of which was represented by shares of stock) and divided that figure by the number of shares, treating the resulting figure as the actual cash market value per share. The figure thus calculated was the identical figure as that he testified was in his opinion the actual cash market value per share.

Mr. Alexander’s credibility, and the weight to be given his opinion testimony on market value, was for the jury in this instance. His testimony supported the jury finding returned even though he admitted that he knew of no actual sales of shares of stock, and despite proof from other witnesses that such shares were actually being bought and sold at a price of $25.00 per share. Indeed, in view of the very broad latitude allowed boards of equalization in determining the value of property, we are of the opinion that the Board would have violated no rule of propriety had evidence in the case established that it determined the actual cash market value per share of plaintiffs’ stock by the same calculation as made by Alexander when he made the assessment. Exporters & Traders Compress & Warehouse Co. v. City of Marlin, 1939 (Texas Civ.App., Waco), 130 S.W.2d 860, writ dism., judgment correct.

Judgment is affirmed.


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    The STATE of Texas ex rel. CITY OF EVERMAN, Texas, Appellants, v. CITY OF FORT WORTH, Texas, Appellee.
    No. 16415.
    Court of Civil Appeals of Texas. Port Worth.
    Dec. 14, 1962.
    Rehearing Denied Jan. 11, 1963.
    Doug Crouch, Criminal Dist. Atty., Tar-rafrt County, Fort Worth, for appellant State of Texas.
    Christopher & Bailey and T. S. Christopher, Fort Worth, for relator-appellant.
    S.G. Johndroe, Jr., City Atty., and Albert White, Asst. City Atty., Fort Worth, for appellee.
   BOYD, Justice.

This is a proceeding in quo warranto wherein the State of Texas ex rel. City of Everman seeks to set aside an annexation ordinance, which was Ordinance No. 4560, passed on first reading only by the city council of the City of Fort Worth, on the ground that Everman had first acquired jurisdiction of substantial portions of the area described in Fort Worth’s ordinance and sought to be annexed to the City of Fort Worth. Both parties filed motions for summary judgment, and that of the City of Fort Worth was sustained; hence this appeal.

The first legal proceeding involving an attempt to annex the subject territory was the passage on first reading by the City council of the City of Fort Worth of Ordinance No. 3821 on May 16, 1958.

On January 22, 1960, Fort Worth adopted Ordinance No. 4236, which described an area embracing that included in Ordinance No. 3821 and extending beyond the bound-' ar'ies fixed by that ordinance.

On May 20, 1960, Fort Worth enacted Ordinance No. 4292, which followed the boundaries fixed by Ordinance No, 4236 with the exception of a very small portion, which was left out of .the description in. No. 4292. Section 2 of No. 4292 reads as follows :

“That this ordinance shall and does hereby repeal every prior ordinance in conflict herewith and more particularly this ordinance expressly repeals Ordinance No. 4236 heretofore adopted and passed on January 23, 1960, but as to all other ordinances or sections of ordinances not in direct conflict herewith this ordinance shall be and is hereby, made cumulative.” ■ ■

Beginning December 19, 1960, and ending on February 27, 1961, the City of Ever-man passed five annexation ordinances, each of which undertook to annex areas within those described in Fort Worth’s Ordinances Nos. 3821, 4236, and 4292.

On June 30, 1961, Fort Worth enacted Ordinance No. 4488, which included the same area as No. 4292 with the exception of 3 small parcels of land. Section 2 of this ■ ordinance reads as follows :

“That this ordinance shall and does hereby repeal every prior ordinance in conflict herewith and more particularly this ordinance expressly repeals Ordinance No. 4292 heretofore adopted and passed on May 20, 1960, but as to all other ordinances or sections of ordinances not in direct conflict herewith this ordinance shall be and is hereby, made cumulative.”

On December 1, 1961, Fort.Worth passed Ordinance No. 4560, which followed the same basic metes and bounds and calls as contained in Ordinance No. 4488, with the exception of one small parcel of land. Section 2 of this Ordinance reads as follows:

“That this ordinance shall and does here- - by repeal every prior ordinance in conflict herewith and more particularly this ordinance expressly repeals Ordinance No. 4488 heretofore adopted- and passed on June 30; 1961, but as to all other ordinances or sections of ordinances not in direct conflict herewith this ordinance shall be and is hereby, made cumulative.”

The rule is that the municipality first commencing legal proceedings asserting authority over the territory in question acquires jurisdiction over the same, and this jurisdiction cannot be defeated thereafter by the adverse party’s subsequent attempt to exercise jurisdiction. State ex rel. George v. Baker, 120 Tex. 307, 40 S.W.2d 41; Beyer v. Templeton, 147 Tex. 94, 212 S.W.2d 134; State ex rel. Binz v. City of San Antonio, Tex.Civ.App., 147 S.W.2d 551, error refused; City of Houston v. State of Texas ex rel. City of West University Place, 142 Tex, 190, 176 S.W.2d 928.

Fort Worth first acquired jurisdiction. • If' she did' not lose it by repeals of ordinances, the judgment must be affirmed. Everman contends that Fort Worth lost its' jurisdiction over the area by repealing the relevant ordinances.

Fort Worth Ordinance No, 4292, enacted on May 20, 1960, was in force when Ever-man passed all its annexing ordinances. Ordinance No. 4488, passed on.June 30, 1961, purportedly expressly repealed Ordinance No. 4292, which had been adopted on May 20, 1960. Until June 30, 1961, Everman’s annexing ordinances were ineffective. It is Everman’s position that when Ordinance No. 4292 was repealed by Ordinance No. 4488, jurisdiction over the territory passed immediately over to Everman. It relies, too, on its contention that Ordinance No. 4488 was expressly repealed by Ordinance No. 4560, adopted on December 1, 1961. Therefore it reasons that Ordinance 4560 is the only Fort Worth ordinance that has not been repealed, and is void because jurisdiction had effectually passed to Everman and has never been relinquished.

So far as we have seen, this exact fact situation has not been before the courts of this state. Authority is abundant, however, to the effect that an annexation ordinance covering territory already under the jurisdiction of another municipality is ineffective, invalid, and void. Beyer v. Templeton, 147 Tex. 94, 212 S.W.2d 134; Couch v. City of Fort Worth, Tex.Civ.App., 287 S.W.2d 255; State of Texas ex rel. American Manufacturing Co. of Texas v. City of Fort Worth, Tex.Civ.App., 314 S.W.2d 335; City of Goose Creek v. City of Pelly, Tex.Civ.App., 197 S.W.2d 152.

We do not believe that Fort Worth excluded the subject territory by its ordinances which cut down on the area over which it first acquired jurisdiction, or that there has been any break in the continuity of its jurisdiction. Besides, if Everman’s annexation ordinances were void on the dates they were enacted, the release of the territory by Forth Worth, had that happened, would not operate to revive such ordinances.

Everman contends that its ordinances were validated by House Bill No. 482, Ch. 275, page 583, 57th Leg., effective May 29, 1961, now Art. 966h, Vernon’s Ann. Tex.Civ.St. That statute seems not to apply here, even if a void act could be validated, because the statute provides that “All governmental proceedings and acts performed by the governing bodies of such cities and towns and all officers thereof since their incorporation, or attempted incorporation, are hereby in all respects validated as of the respective date of such proceedings and acts.” In Bigfoot Ind. School Dist. v. Genard, Tex.Civ.App., 116 S.W.2d 804, it was said: “It is conceded, and is obvious, that the Legislature has no power to validate an act which it did not have the power to authorize in the first instance ; it cannot ratify an act it cannot authorize.” In re American Rio Grande Land & Irr. Co., D.C., 21 F.Supp. 492, we find the following: “Validate is a derivative of valid, and means to make valid; to confirm. * * * These definitions presuppose antecedent facts which, in themselves, though attempting validity, had been in» sufficient to accomplish it. They cannot and do not mean that out of a clear sky, without supporting evidence, the Legislature may validate something that in fact never existed.”

The judgment is affirmed.


author: MURRAY, Chief Justice.

text:
    John R. PENNINGTON et al., Appellants, v. CITY OF CORPUS CHRISTI, Texas, et al., Appellees.
    No. 14012.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 12, 1962.
    Rehearing Denied Jan. 9, 1963.

      Sidney P. Chandler, Corpus Christi, for appellants.
    I. M. Singer, James P. Ryan, Corpus Christi, for appellees.
   MURRAY, Chief Justice.

This suit involves an area of land adjacent to the City of Corpus Christi, Texas, generally known as the Flour Bluff area. More specifically, it involves the question of whether the City of Corpus Christi has a prior right to annex this territory or whether certain citizens have a prior right to incorporate such territory into a municipal corporation.

The City of Corpus Christi on January 4, 1961, received a petition for annexation, describing the Flour Bluff area adjacent to the City, which at the time was not a part of any other incorporated city then in existence or in the process of incorporation. The City Council thereafter determined that this petition was sufficient under the provisions of the City Charter, and called an election in keeping with the petition. An election was duly held and the question of annexation was carried by a majority vote, and the City Council passed an ordinance annexing said territory to the City of Corpus Christi. These proceedings conclusively and legally annexed this territory to the City, unless the appellants herein had a prior right to incorporate it into a municipal corporation by filing with the County Judge of Nueces County, Texas, a petition for an election to incorporate this same territory.

The petition to annex was filed with the City Council on January 4, 1961. Some six months later, on July 11, 1961, the petition for an election was filed with the County Judge. The following day, July 12, the City Council passed an ordinance finding that the petition was signed by not less than ten per cent of the qualified voters residing in the area proposed to be annexed, that the area was contiguous and adjacent to the existing corporate limits of the City, and ordering an election to be held on August S, 1961, on the question of annexation.

On July 11,1961, the same day the petition for incorporation was presented to him, the County Judge ordered an election to be held, also on August 5, 1961, to determine the question of incorporation.

It is apparent that this territory cannot legally be annexed to the City of Corpus ' Christi and at the same time be incorporated •as a new'municipal corporation. Thus, the question of priority of rights is here presented.

The trial was to a jury, which found by its answers to questions submitted, (1) that after the filing of said petition on January 4, 1961, the petitioners did not, in good faith, pursue and prosecute said petition in the City Council between said date and July 10, 1961; (2) that between January 4, 1961, and July 10, 1961, the Corpus Christi City Council did not abandon the proposed annexation of the Flour Bluff area; (3) that the description of the territory proposed to be annexed, as contained in the ordinance calling the annexation election in the City of Corpus Christi for August 5, 1961, is not so indefinite and uncertain that it cannot be definitely determined what territory, if any, was intended to be annexed by said election; (4) that the description of the territory proposed to be incorporated is not so indefinite and uncertain that it cannot be definitely determined what territory was intended to be incorporated; (5) that the alleged annexation of the Flour Bluff area to 'Corpus Christi was unreasonable, unjust and arbitrary at the time; (6) that the area contained in the petition for incorporation had on or about July 11, 1961, a population of less than 5,000 inhabitants; (7) that no more territory has been included within the proposed incorporated area than was intended to be used for strictly town purposes.

The trial court disregarded the jury’s answers to questions 1, 4, 5 and 7, and rendered judgment non obstante veredicto in favor of appellee City of Corpus Christi ■upholding the annexation ordinance, from which judgment John R. Pennington prosecuted this appeal.

The controlling question involved here is whether proceedings to annex the Flour Bitiff area to the City of Corpus Christi were begun when the petition was filed with the City on January 4, 1961. The petition was regular on its face and purported to have been signed by not less than ten per cent of the qualified voters residing in the territory proposed to be annexed. This petition, when presented to the City Council, was sufficient to commence legal proceedings and assert authority over the Flour Bluff area. The rule in this State is that whoever first commences legal proceedings asserting authority over the territory, acquires jurisdiction over same and this jurisdiction cannot thereafter be defeated by adverse parties who subsequently attempt to exercise jurisdiction. Beyer v. Templeton, 147 Tex. 94, 212 S.W.2d 134.

Appellants contend that the petition was legally insufficient and hence did not confer jurisdiction upon the City of Corpus Christi over the area in question. We overrule this contention. The City Council, by ordering the election, necessarily found! that the petition was legally sufficient, and in' the absence of a showing of want of good' faith or an abuse of discretion, this finding-is final and binding when called into question in a judicial proceeding. School Bd. of the City of Marshall v. State by Criminal Dist. Atty. ex rel. Warbritton, 162 Tex. 9, 343 S.W.2d 247; State ex rel. Wilkinson v. Self, Tex.Civ.App., 191 S.W.2d 756. In the very recent case of State by Criminal Dist. Atty. ex rel. Lindsey v. City of Marshall, Tex.Civ.App., 347 S.W.2d 274, writ refused, the Texarkana Court of Civil Appeals, said :

“The issue eventually decided by the city commission in this case was ■ -a political one and noprivate rights were at stake. Since the petition was regular on. its face it was sufficient to invoke the potential jurisdiction of the city commission to determine whether it was signed by the required number of qualified voters.”

See, also, State ex rel. Pan Am. Production Co. v. Texas City, 157 Tex. 450, 303 S.W.2d 780.

There is no evidence here and no finding of the jury that the City Council, in calling the election for the annexation of the Flour Bluff area to the City of Corpus Christi, acted in bad faith.

In view of this holding, the findings of the jury Nos. 1, 4, 5 and 7, are immaterial and were properly disregarded by the trial court.

We have examined other points presented by appellants and find them without merit,, therefore, they are overruled.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Martha BERRYMAN, Widow, et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 26, 1962.
    Rehearing Denied Feb. 1, 1963.
    John B.. Breckinridge, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., Paul E. Hunley, Atty., Dept, of Highways, Frankfort, for appellant.
    John Marshall Prewitt, Mt. Sterling, Max E. Conn, Ames, Iowa, for appellees.
   PALMORE, Judge.

This is a highway condemnation case originating in the Montgomery County Court and governed by the provisions of KRS 177.081 et seq. The report of commissioners awarding the landowner $13,540 was confirmed by a judgment of the county court entered on September 19, 1958. The Commonwealth filed its appeal in the Montgomery Circuit Court on October 17, 1958, within the 30-day period allowed by KRS 177.087. The landowner did not appeal or otherwise plead in the circuit court until October 21, 1958, the 32d day after the date of the county court judgment, when she filed an answer and counterclaim. The counterclaim raised the question of inadequacy of the award and demanded a jury trial on all questions of damages.

In a similar case it has been held that an amended answer and counterclaim pleading inadequacy of the award, but not filed within 30 days after the date of the county court judgment, could not be treated as a cross-appeal by the landowners. “The circuit court should have stricken or disregarded the pleading or attempt to cross-appeal because it was too late, with the result that the landowners were not entitled to claim more than * * * the amount of the county court judgment.” Keeney v. Com., Ky.1961, 345 S.W.2d 481. See also Bennett v. Com., Ky. 1959, 322 S.W.2d 706.

The Commonwealth never questioned the defective appeal and did not object to the court’s failure to limit recovery to $13,540 in its instructions to the jury. The result was a verdict for $18,316.

It is an accepted principle that jurisdiction of the subject-matter cannot be conferred by waiver or consent. Thompson v. Com., 1937, 266 Ky. 529, 99 S.W.2d 705; Rodney v. Adams, Ky.1954, 268 S.W.2d 940, 942; Burke v. Tartar, Ky.1961, 350 S.W.2d 146, 148. Though we do not appear to have held directly that a compliance with the 30-day time limit of KRS 177.087 is jurisdictional, that is the inference to be drawn from the language of several opinions to the effect that the circuit court obtains “jurisdiction” when an appeal is perfected in accordance with the requirements of that statute. Cf. Com. ex rel. Curlin v. Taylor, Ky.1955, 279 S.W.2d 813; Com., Dept. of Highways v. Hale, Ky.1961, 348 S.W.2d 831, 833; Com., Dept. of Highways v. Bargo, Ky.1961, 350 S.W.2d 153.

The 30-day limit having been held independently applicable to each of the parties, if it is jurisdictional neither can waive the failure of the other to comply.

The word “jurisdiction” is more easily used than understood. Conceived in terms of power, or effective authority, it may represent policy instead: 'Applied to questions of time, it is a convenient label to mark a requirement as ultra-mandatory. We think the requirement of KRS 177.087 that an appeal be taken within 30 days falls in that category. A fundamental purpose of the statute was to compel each party to speak up within 30 days or forever after hold his peace. The conspicuous absence of provision for additional time in which to cross-appeal rather clearly evinces a legislative policy against it.

The statute says also that the trial de novo in the circuit court shall be limited to the questions raised in the exceptions or statement of appeal, which we take to mean that the power of the circuit court is confined to the subject-matter of the appeal as distinguished from the subject-matter of the case as a whole. Therefore, the only question with which the circuit court was empowered to deal in this case was whether the county court award was excessive, and the maximum award it was authorized to make was $13,540.

The Commonwealth, of course, had the burden of proving that the value of the land taken and amount of damages totalled less than $13,540. The verdict indicates the burden was not sustained to the jury’s satisfaction. Hence the landowner was entitled to judgment for $13,540 if there was substantial evidence to support it, and the appraisals of her valuation witnesses, though not reflecting any professional skill or technique, had sufficient probative weight to do so.

The jurisdictional question we have found to be decisive on this appeal was not raised by the Commonwealth. However, it is disclosed by the record, and we are bound to take cognizance of any defect that may invalidate the judgment under review. “On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first of the reviewing court, and then of the court from which the record comes. This question cannot, so far as jurisdiction of the subject-matter is concerned, be waived by the parties or overlooked by the court. It is, therefore, open for the consideration of the reviewing court whenever it is raised by any party, or it may even be raised by the court of its own motion.” 3 Am.Jur. 383, Appeal and Error § 839. See also Miller v. First Service Corp., C.A. 8, 1936, 84 F.2d 680, 109 A.L.R. 1179, and CR 12.08.

Reversed with directions that judgment be entered awarding the landowner $13,540 in lieu of $18,316 as awarded in the judgment from which this appeal was taken.


author: HOLMAN, Commissioner.

text:
    Icy Marie HALE, Respondent, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant.
    No. 49180.
    Supreme Court of Missouri, Division No. 1.
    Jan. 14, 1963.
    Johnson, Johnson & Landis, Thomas A. Johnson, James P. Landis, Neosho, for appellant.
    Emerson Foulke, Joplin, Edward V. Sweeney, Monett, for respondent.
   HOLMAN, Commissioner.

Plaintiff received serious personal injuries on June 30, 1956, when the car she was driving ran into the side of a freight train which was standing on defendant’s main line track at the point where it crosses 15th Street in Joplin, Missouri. In this action to recover damages for said injuries she obtained a judgment for $17,000. Defendant has duly appealed therefrom.

The sole point briefed upon this appeal is that the trial court erred in overruling defendant’s motion for a directed verdict because the evidence showed that plaintiff was guilty of contributory negligence as a matter of law. In determining that contention we will view the evidence in the light most favorable to plaintiff, give her the benefit of all favorable inferences arising therefrom, and disregard defendant’s evidence unless it aids plaintiff. Erbes v. Union Electric Company, Mo.Sup., 353 S.W.2d 659.

Plaintiff testified that at all times herein mentioned she resided in Joplin, Missouri, and that prior to being injured she was in good health and regularly employed; that she had had a cataract removed from her left eye about a year before but, although she could not read with that eye, she could see with it at a distance, and that she had 20-20 vision in her other eye; that at the time in question she was on vacation and had spent Friday, June 29, visiting at the home of her daughter who also lived in Joplin; that she had a date for that evening with a friend, Harold Smith, who came by for her about 9:30 o’clock; that she and Harold went to the home of Mr. and Mrs. Marcum where they visited and played cards until about 2 a. m.; that upon leaving the Marcum home Harold took her to her daughter’s home where she got into her car with the intention of driving it to her home; that Harold was to follow in his car; that her automobile was a 1956 Plymouth which was practically new and was in good mechanical condition; that in proceeding to her home she drove west on 15th Street at about 30 miles per hour.

Plaintiff further testified that as she approached the point of collision her lights were on low beam and would normally show objects ahead for a distance of 100 feet; that the level of defendant’s tracks was two or three feet higher than the level of the street on each side; that she had driven over this crossing many times and knew that there was an automatic signal device on each side of the track which would flash red lights and ring a bell when a train approached or occupied the crossing; that she watched the signal for two blocks before arriving at the crossing and the lights did not come on and the bell did not ring; that when she was from 75 to 100 feet from the crossing she looked both to the north and to the south and saw nothing; that the street had a dark blacktop surface for some distance east of the crossing and when her cár reached a point 75 feet from the crossing she was momentarily blinded by the lights from cars across the track, and when she was about 40 feet from the track, “all of a sudden I saw a black object in front of me. * * * I applied my brakes and I must have been knocked unconscious as I don’t remember anything until Harold was helping me, dragging me out of the car”; that some members of the crew came and talked with Harold; that a policeman came and took her to the home of her sister who called a doctor, and she was taken to the hospital.

It was the further testimony of plaintiff that there was no street light on the east side of the crossing, although there was one a short distance west of the railroad track; that her car was equipped with power brakes and she thought she could stop it in 75 feet at 30 miles per hour.

A summary of her reasons for not seeing the train in time to avoid colliding with it is contained in the following testimony: “Q. I want to know why didn’t you see the train before you saw it? A. Because the signal lights were not working, and I had always depended upon them working. I looked up, back and forth on the track, and I saw nothing. It was dark, and I had always relied on the signal lights. Q. All right, and what kept you from picking them up with the lights of your car? A. Because of the incline. There was a dark — the incline is dark, and that absorbs the light of the cars, so, therefore, I couldn’t see as far in the distance as I normally would. And the incline also tended to show the lights under the object instead of on the object. Q. And I believe you said, also, that the lights on the car meeting you blinded you, is that right? A. And with the other cars coming toward me, the headlights seemed to blind me momentarily until — . Q. And under all the conditions that were existing, did you see that object as quick as you could? A. I saw the object as quickly as I could.”

Harold Smith testified that he had been following about ISO or 200 feet behind plaintiff’s car in order to see that she got home alright; that prior to the collision she had been traveling about 25 or 30 miles per hour; that he did not see any warning signal flashing at the crossing; that he first noticed plaintiff’s brake lights go on and then heard a crash momentarily thereafter; that he stopped his car, “jumped out and ran up to Mrs. Hale’s car which was partly under a boxcar”; that after some difficulty he was able to get the door open and to remove plaintiff from her car; that shortly thereafter the train started to move forward and pulled plaintiff’s car down the track for 20 or 25 feet; that after the train had cleared the crossing it came to a sudden stop and some of the members of the crew “came back to where we were”; that soon after getting out of his car he particularly observed the electric signal device at the crossing and saw that it was not operating; that he could not see any street light at this location. Mr. Smith also testified as follows: “Q. Now, was there any way, considering the condition of that street and the condition of the night and the light conditions, that a person could have seen that car and avoided striking it, driving up on it? A. I don’t believe there would have been.”

Another witness for plaintiff, Joe H. Smith, testified that a day or two before plaintiff was injured he had been at this crossing and had seen a train on the crossing and the signal light was not operating.

The signal light in question was described in the testimony as having two horizontal red lights which flashed alternately when a train was within a certain distance of the crossing, and directly under the flashing lights were four perpendicular red lights which burned continuously when the signal was operating. The testimony indicated that the signal was supposed to become activated when an approaching train arrived at a point 2,000 feet from the crossing and would continue to operate until the entire train had cleared the crossing. The testimony further indicated that plaintiff’s car struck the 25th car of a 50-car freight train which remained stationary on this crossing for a period of from six to eight minutes.

A highway patrolman testified for the defendant to the effect that at 30 miles per hour on dry pavement an automobile could be stopped in 79 feet.

We will not extend this opinion by detailing other testimony offered by defendant as it does not aid plaintiff’s case and, under the rule heretofore stated, is to be disregarded.

Both parties offered as exhibits pictures of the crossing in question. We are particularly impressed with plaintiff’s exhibit No. 4 which is an enlarged photograph of the crossing showing a freight train on the crossing and a car stopped on the other side of the tracks waiting for the train to pass. This picture clearly shows the elevation of the tracks and the manner in which the lights of a car on the other side could shine under a freight car standing on the crossing and perhaps affect the vision of the driver of a car approaching from the east.

Plaintiff’s case was submitted upon the primary negligence of defendant in negligently maintaining a signal warning device at the crossing in question which failed to operate. No question is raised concerning the sufficiency of the evidence to support that submission. Two instructions given at the request of defendant submitted the defense of plaintiff’s contributory negligence in failing to keep a lookout and in failing to avoid a collision with the freight car by stopping or turning her automobile. As we have said, the issue here is whether plaintiff was guilty of contributory negligence as a matter of law.

It was plaintiff’s duty at the time and place in question to exercise the highest degree of care in the operation of her automobile. The issue of her contributory negligence was a question for the jury unless it must be said, as a matter of law, that she failed to exercise the highest degree of care. If the evidence is such that all reasonable minds would arrive at the conclusion that plaintiff, in the situation here presented, failed to exercise the highest degree of care, then she is barred from recovery as a matter of law. However, if, from a consideration of the evidence favorable to plaintiff, reasonable men may honestly differ upon that issue, then, as stated, the question was properly for the determination of the jury.

We agree with defendant’s contention that the railroad track itself, and the standing train thereon, would ordinarily be a warning of danger. However, where, as here, the railroad maintains a mechanical device to warn persons on the highway of the presence of a train on or near the crossing, and the party charged with contributory negligence knows of its existence and relies upon it, and that device fails to operate, such is a very potent factor to be taken into account in determining the issue of contributory negligence.

We have said that it was “plaintiff’s duty, in approaching the crossing, to lend an attentive eye and ear to the signaling device defendant had installed to warn highway travelers of passing trains. Perkins v. Kansas City Southern R. Co., supra [329 Mo. 1190, 49 S.W.2d 103]. The unlit, silent, inactive signaling device impliedly assured the highway traveler, plaintiff, the crossing could be made in safety. While one in the exercise of due care would not rely solely upon the performance of defendant of the duty assumed in erecting the signaling device and would use his own senses, yet, a person, although exercising due care, doubtless would feel more secure and would be less vigilant than if defendant’s implied assurance that the crossing could be made in safety had not existed.” Rhineberger v. Thompson, 356 Mo. 520, 202 S.W.2d 64, 68. See also Rinderknecht v. Thompson, 359 Mo. 21, 220 S.W.2d 69; Mullís v. Thompson, 358 Mo. 230, 213 S.W.2d 941; Caraway v. Atchison, Topeka & Santa Fe Ry. Co., Mo.Sup., 318 S.W.2d 331, and Davis v. Illinois Terminal R. Co., Mo.Sup., 291 S.W.2d 891.

Plaintiff could not rely solely upon the silent, unlit warning device but was also required to keep a lookout ahead in an effort to see any obstruction that might be in the path of her car. It is a fair inference from her testimony that she was looking generally ahead during the time she approached the crossing except that she looked to the north and to the south when 75 or 100 feet from the crossing. However, she stated that she did not see the “black object ahead” until her car was 40 feet from the track. It would therefore appear that the decisive question presented is whether, upon a consideration of all the surrounding circumstances, there was any substantial evidence tending to excuse plaintiff’s failure to see the boxcar in time to have avoided the collision. Rowe v. Henwood, Mo.App., 207 S.W.2d 829.

We will briefly mention the circumstances heretofore detailed upon which plaintiff relies in explaining her failure to see the train before she did. She stated that (1) the signal warning device upon which she had always depended had not been activated; (2) it was dark and cloudy; (3) the dark surface of the street absorbed the light which was being projected from the headlights of her car; (4) the higher level of the track tended to cause the light to be projected under the boxcar rather than on it; and (5) while her car was traveling from a point 75 feet from the crossing to a point 40 feet therefrom, she was momentarily blinded by the headlights from cars approaching from the west. Upon the basis of those circumstances plaintiff was permitted to state the conclusion (without objection) that she had seen “the object as quickly as I could.”

In its brief defendant advances the contention that “a motorist whose car lights show the roadway ahead for only 100 feet, and who continues at unabated speed of 30 miles per hour at night up to a known crossing and gets so close to a train standing on the crossing that there is not sufficient space left to stop, has not discharged the duty to exercise the highest degree of care and must be held to be negligent as a matter of law.” We do not agree that the circumstance stated would be sufficient to bar plaintiff’s recovery. The evidence does not show that plaintiff was, at the time, aware of the fact that her lights were not disclosing objects for a distance of 100 feet as they ordinarily would. Therefore, since she could have stopped in 75 feet, it was not negligence, as a matter of law, to drive at a speed of 30 miles per hour as she approached the crossing.

Defendant also contends that plaintiff was negligent as a matter of law in permitting her car to travel 35 feet during the period she was momentarily blinded without reducing the speed thereof. The period defendant refers to was approximately three fourths of a second. We recognize that three fourths of a second is the normal reaction time of an individual. Under the circumstances of this case we hold that plaintiff was not guilty of contributory negligence as a matter of law in failing to apply her brakes during the short period of time she was blinded. See Bedsaul v. Feeback, 341 Mo. 50, 106 S.W.2d 431, and Powell v. Schofield, 223 Mo.App. 1041, 15 S.W.2d 876.

In support of its general contention that plaintiff was guilty of contributory negligence as a matter of law defendant has cited the cases of Fugate v. St. Louis-S. F. Ry. Co., Mo.App., 348 S.W.2d 718; Lohmann v. Wabash R. Co., 364 Mo. 910, 269 S.W.2d 885; State ex rel. Kansas City So. Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915; Allinson v. Missouri-Kansas-Texas R. Co., Mo.App., 347 S.W.2d 902; Rowe v. Henwood, supra; Dimond v. Terminal R. Ass’n of St. Louis, 346 Mo. 333, 141 S.W.2d 789; Turner v. Illinois Central R. Co., Mo.Sup., 319 S.W.2d 539; Albertson v. Wabash R. Co., 363 Mo. 696, 253 S.W.2d 184; and Fitzpatrick v. Kansas City So. Ry. Co., 347 Mo. 57, 146 S.W.2d 560. In all of the cases cited except Dimond and Albertson the plaintiff was held to be guilty of contributory negligence as a matter of law under rules of law that were correctly stated therein. However, none of those cases are decisive here because they involve facts which differ greatly from those in the case before us. “The difficulty, of course, is in applying the law to the particular facts and circumstances in each case. Distances, speed, physical facts, and conduct of the injured party, together with all the other facts and circumstances, must be taken into consideration in passing upon the question of contributory negligence. Each case is more or less different on the facts, and no hard and fast rules may be laid down applicable alike to all cases.” Flannagan v. St. Louis-San Francisco Ry. Co., Mo.App., 297 S.W. 463, 466. While we consider it unnecessary to point out the many factual differences between the instant case and the cases cited, we desire to stress one important circumstance appearing in the case at bar which was not present in any of those cases, i. e., the fact that the defendant had installed the automatic warning device which had not been activated by the train standing on the track.

We have concluded that all reasonable men would not agree that plaintiff failed to exercise the highest degree of care in not observing the boxcar in time to have stopped her car or to have taken other action to avoid the collision. The reasons detailed m plaintiffs testimony explaining her failure to see the train before she did see it, when considered along with all the other facts and circumstances in evidence, constitute substantial evidence tending to excuse her admitted failure to see the train until her car was 40 feet from the tracks. We accordingly rule that plaintiff was not guilty of contributory negligence as a matter of law and that the court did not err in overruling defendant’s motion for a directed verdict based solely upon that ground. See the Rhineberger, Rinderknecht, Mullis, Caraway, and Davis cases, cited supra.

The judgment is affirmed.

COIL, C., not participating.

HOUSER, C., concurs.

PER CURIAM.

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

All concur.


author: DALTON, Presiding Judge.

text:
    Claim of Larry D. BENCH, Claimant-Appellant, v. ESTATE of James EGAN, Deceased, Horace T. Robinson, Administrator, and Estate of Bessie Egan, Deceased, David Donnelly, Administrator, with will annexed, Defendants-Respondents.
    No. 49466.
    Supreme Court of Missouri, Division No. 1.
    Jan. 14, 1963.
    J. W. Grossenheider, Lebanon, for appellant.
    Claude T. Wood, Richland, Donnelly & Donnelly, Lebanon, for respondents.
   DALTON, Presiding Judge.

This is an appeal by claimant from the order and judgment of the Circuit Court of Pulaski County dismissing two claims originally filed by claimant in the probate court of said county and thereafter removed, on motion of claimant, to the circuit court of said county.

Each claim was for $20,000 and purported to be based upon a breach of contract of lease between decedents and claimant. The original claims were identical except for the name of the estate against which they were filed. In the circuit court the claims were consolidated for hearing and disposition. Claimant, thereafter, filed a request for admissions and the respective defendants filed motions to dismiss the claims on the ground of failure to state a claim upon which relief could be granted.

Thereafter, claimant filed a motion in each case requesting leave to file a first amended petition. The motions were sustained, and amended claims were filed against the respective estates. On the same day, the court sustained a portion of the objections to the request for admissions and overruled the balance. Thereafter, the respondents filed answers to the requests for admissions and also filed a motion to dismiss claimant’s first amended claim on the ground (1) that said claim failed to state a claim upon which relief could be granted; and (2) that claimant’s first amended claim was barred under the provisions of Section 473.360 RSMo 1959, V.A.M.S. The court thereafter sustained respondents’ motion to dismiss appellant’s first amended claim against each estate “on the ground that the original claim sought to be amended did not state any-fact or facts sufficient to support amendment,” and dismissed the appellant’s claims.

The original claim filed against the James Egan Estate was (caption, signature and jurat omitted), as follows: “Larry S. Bench, being duly sworn, states on oath that there is due him from the estate of James Egan, Deceased, Incompetent, Minor, the sum of $ 20,000.00 on’account of breach of contract of lease, said contract being that drawn between James & Bessie Egan and Larry S. Bench dated May 6,1960, and being the same as that agreement referred to in the inventory filed in the James Egan Estate. The claimant holds security for his claim as follows: None. Claimant states that to the best of his knowledge and belief — he has given credit to such estate for all payments and offsets to which it is entitled and that the balance claimed as above stated is justly due.” (Italics ours.)

The single assignment by appellant in this court is that the court erred in dismissing claimant’s first amended claims on the ground stated in the orders of dismissal, “because the original claim was in writing stating the nature and amount thereof under oath and conformed to the requirement of the statutes, and the amendment originally permitted by the court was properly permitted.”

Appellant first cites and relies upon Sec. 473.380 RSMo 1959, V.A.M.S., as follows:

“Form and verification of claims. 1. No claim other than for costs and expenses of administration shall be allowed against an estate unless it is in writing, stating the nature and amount thereof, if ascertainable, and is accompanied by an affidavit of the claimant, or of some person for him who has knowledge of the facts, stating that to the best of his knowledge and belief he has given credit to the estate for all payments and offsets to which it is entitled and that the balance claimed is justly due.

“2. If a claim is founded on a written instrument, the original or a copy thereof with all indorsements shall be attached to the claim. The original instrument shall be exhibited to the executor or administrator or court, upon demand, unless it is lost or destroyed, in which case its loss or destruction shall be stated in the claim.” (Italics ours.)

Appellant insists that a claim filed in the probate court is not to be judged by the strict rules of pleadings and is ordinarily considered sufficient if a judgment thereon will be res adjudicata of the obligation upon which the claim is based, citing Siegel v. Ellis, Mo.Sup., 288 S.W.2d 932, 938(3). Appellant further argues that the legal representatives of the respective estates were advised that the $20,000 was being claimed because of a breach of the contract of lease, which was the same lease contract inventoried in the James Egan estate, which both decedents had executed, so that the respondents were advised of the nature of the claim. In addition to this, appellant says that the request for admissions were filed and that such request did further inform the respective legal representatives of the estates as to the nature of claimant’s claim; and that said request for admissions incorporated the lease itself. Appellant also argues that a claim filed in the probate court may be amended unless it is so wholly insufficient as to constitute a nullity after the nonclaim statute has run; and that such amendments have been allowed when its effect is to make the claim more specific. Appellant relies upon the Siegel case, supra and Minor v. Lillard, Mo.Sup., 306 S.W.2d 541. Appellant also cites Maus on Probate Law and Practice, Volume 4, Secs. 939, 941.

In the case of Siegel v. Ellis, supra, 288 S.W.2d 932, 938, the Court said: “A demand filed in the probate court is not to be judged by the strict rules of pleading. It is sufficient if it gives reasonable notice to the legal representative of the estate of the nature and extent of the claim and is sufficiently specific that a judgment thereon will be res judicata of the obligation upon which it is based. Amd it is only when the original claim is wholly insufficient that it may not be amended after the limitation period fixed by statute for the filing of claims. In re Franz’ Estate, Mo., 245 S.W.2d 1, 4—5; 34 C.J.S. Executors and Administrators, § 417f, p. 199.” And see Minor v. Lillard, supra, 306 S.W.2d 541, 543.

In the case of In Re Franz’ Estate supra, 245 S.W.2d 1, 4-5, the court said: “It is well settled that ‘a demand filed in a probate court is not to be judged by the strict rules of pleading applied to a petition in the circuit court. Such a demand is sufficient if it gives reasonable notice to the adverse party of the nature and extent of the claim made, and if it be specific enough so that a ruling thereon will become res judicata of the matters involved.’ In Re Thomasson’s Estate, 346 Mo. 911, 144 S.W.2d 79, 81 * * *. No formal pleadings are required in the presentation of demands in the probate court, nor on an appeal to the circuit court. * * *

“Section 464.280 (all references are to RSMo 1949, V.A.M.S., unless otherwise stated) provides that the probate court ‘shall hear and determine all demands in a summary way without the form of pleading, and shall take evidence of competent witnesses or other legal evidence ⅜ * Further, Sec. 467.090 provides that, in case of appeals, the court having appellate jurisdiction ‘shall be possessed of the cause, and shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection in the proceedings of the probate court.’

“Clearly the Legislature intended to make it easy for persons not learned in the law to present their demands against estates in the probate court and on appeal in the circuit court without being held to technical formalities and rules. Our courts have steadfastly refused to narrow the construction or restrict the application of the statutes cited. * *. * We must examine the demands in question in the light the statutes mentioned and well established rules of law referred. However, if a demand, in the form originally filed, is wholly insufficient, it cannot be amended after the expiration of the statutory period of limitations so as to avoid the statute of non-claim. * * * Further, if the demand is wholly insufficient, the probate court acquires no jurisdiction to hear and determine the claim and the circuit court will acquire none on appeal.”

Section 464.280 RSMo 1949 above referred to has since been repealed by the Probate Code; Laws 1955, p. 385. Further, the facts ruled in the In Re Franz’ Estate case, supra, were very different from the facts in this case, and the issues ruled on appeal in the Minor case were totally different; however, both cases state the rule of law applicable to the facts of this case.

Were the original claims, as filed, sufficient to inform the respective legal representatives of the respective estates as' to the nature of the breaches of contract relied upon and, therefore, as to the nature of the claims ?

The rule as to the sufficiency of an allegation of breach of contract is well stated in 17 C.J.S. Contracts § 543, p. 1176: “The essential facts constituting the breach should be set forth clearly and unequivocally; and the breach should be assigned with such certainty and particularity as will apprise' defendant in what particular he has failed to perform and allow him to take material issue thereon. A mere conclusion of the pleader that the contract has been broken is insufficient.” (Italics ours.)

It will be noticed that the original claims as filed against the respective estates alleged no facts tending to show how or in what manner the contract of lease was breached, nor are any facts stated which would constitute a breach of the contract of lease. Each claim is for “the sum of $20,000 on account of breach of contract of lease.” The words “on account of breach of contract of lease” state no facts and give no information as to how or in what manner the contract was breached. The contract in question might have been breached in any number of different ways. Absent an allegation or statement of facts as to the manner in which the contract was breached, no claim is stated on which relief can be granted. Since the particular breach or breaches relied upon are not stated, the nature of the claims were not sufficiently stated to comply with the statute. The legal representatives of the mentioned estates were not advised as to what alleged breach or breaches they were called upon to answer. To state a claim for breach of contract the particular breach relied upon must be stated, and, absent such an allegation, the claims filed were wholly insufficient and could not be amended after the expiration of the statutory period of limitations.

In the case of Watkins v. Donnelly, 88 Mo. 322, 323, the court said: “While it is true that in probate courts formal pleadings are not requisite, still common justice and ordinary honesty require that an account or statement of a matter, about which those in charge of the estate probably know nothing, should, when presented for allowance, 'at least, be sufficiently specific to apprise them of the facts involved, so that they can be prepared properly to protect the interests confided to their care, and thus prevent unjust demands from swallowing up the estate.”

In Whitehill v. Shickle, 43 Mo. 537, 546, in passing on the sufficiency of a counterclaim to recover a penalty upon an alleged breach of contract, the court said: “* * and in claiming this penalty they do not assign specific breaches, so as to advise him of the motive of their demand. A general statement that a party ‘totally disregarded all, and did not fulfill any, of the covenants and stipulations to be kept and performed, and made by him in the written instrument,’ etc., is altogether too general to support a demand, especially for a penalty.”

In the case of Sanders v. Ray Printing Co., Mo.App., 45 S.W.2d 876, 877, where the plaintiff sought to recover damages for breach of contract, the court said: “We think there was a fatal defect in this petition. It is apparent that the cause of action intended to be stated is that defendants agreed with plaintiff to publish for hire in the Cassville Democrat his announcement as a candidate for the office of prosecuting attorney of Barry county and then failed or refused to publish the same. By reading plaintiff’s petition, it will be readily seen that plaintiff does not allege that defendants did not publish the announcement, and, without that allegation, it is clear that a breach of the contract on defendants’ part was not alleged. A petition based on a breach of contract must, in order to state a cause of action, allege that defendants neglected, failed, or refused to perform his part. This petition failed to do that, and for that reason the trial court properly sustained a demurrer to it.”

As above indicated, the contract in question was not attached to either claim, nor was a copy attached as. required by Section 473.380 RSMo 1959, V.A.M.S., nor would the contract or a copy of it, if attached to the claims, have pointed out the breach or breaches intended to .be' relied upon by appellant as a basis for recovery on the claims filed.

The transcript on file also shows a copy of claimant’s request for admissions in the following' respects:

“4. That neither James Egan, Bessie Egan nor their administrators constructed another building of the same type and structure as the present building at a location agreed upon by any of these parties and claimant, within 45 days after the claimant was obligated to vacate the present building mentioned in the aforesaid contract.

“5. That claimant as a direct and proximate result of the aforementioned failure of James Egan, Bessie Egan or their administrators to comply with the terms of the aforementioned contract set forth in paragraph numbered ‘4’, sustained damages.”

A copy of the alleged lease in question was attached to the above request for admissions. The lease (Claimant’s Exhibit A), as attached to the request for admissions, covers some five pages of the transcript of the record and the lease contains numerous provisions that may have been breached. It was not until the filing of the “claimant’s first amended claim against the estates of deceased” that there was any indication or notice concerning the particular breach to be relied upon.

The first amended claims stated the particular manner of breach of contract of lease, as follows:

“2. That pursuant to the terms of said Lease the claimant performed all of his duties and obligations thereunder and that prior to the death of James Egan and Bessie Egan, the Missouri State Highway Commission condemned the leased property and pursuant to the terms of the lease, the lessors and the claimant agreed on a location for the construction of a new building and the lessors had construction commenced on the new building on said location prior to their death.

“3. That the lessors subsequently died and that no further work was performed on said new building and that claimant was required to move from the condemned building and was not furnished the new building contracted for within 45 days from the date that he was compelled to vacate the condemned building and has never been furnished the new building contracted for in said lease by decedents or their legal representatives.

“4. That by reason thereof, claimant has sustained damages in the amount of $20,-000.00.”

It is apparent from these assignments that the first amended claims sought to assign breaches of the contract of lease that were not alleged or mentioned in the original claims filed in the respective estates; and that appellant now seeks relief on a ground not stated in the original claims.

Respondents have also briefed this case on the theory that the first amended claims stated no claims on which relief could be granted against either of the administrators. Respondents insist that the lease in question was terminated by its own terms upon the purchase of the real estate in question by the State Highway Commission of Missouri; that the alleged agreement to build another building was not confirmed but was to be entered into as a new contract and a new lease; that respondents, as administrators of said estates, have absolutely no power or authority to enter into a construction contract for the erection of a building on said real estate, or even to lease said real estate (except by order of the probate court) ; that if the respondents did, in fact, enter upon such a contract or lease of said real estate, as appellant contends said agreement contemplates, they would be personally liable thereon; that if funds of the estates were diverted to such a project, the administrators would be guilty of misapplication of funds of said estate and personally answerable to the heirs of said decedents; and that since the respondents have no authority to construct such a building, then respondents and their estates cannot be held liable for the failure to do something which by law they are prohibited from doing.

It will not be necessary for us to review the cases upon which respondents rely in support of the above contentions. It is sufficient to say that the cause was not ruled in the trial court upon any such theory. It is enough to hold, as we have held, that the original claims failed to state a claim on which relief could be granted, and that they were not amendable after the statute of nonclaim had run.

The judgment is affirmed.

All concur.

      . Now V.A.M.S. § 473.403.


author: LEEDY, Judge.

text:
    STATE of Missouri at the relation of the CITY OF EL DORADO SPRINGS, Missouri, Relator, v. Haskell HOLMAN, State Auditor of Missouri, Respondent.
    No. 49582.
    Supreme Court of Missouri, En Banc.
    Dec. 20, 1962.

      A/V. W. Sunderwirth, City Atty., City 'of El Dorado Springs, Robert B. Fizzell, Robert B. Fizzell, Jr., Norman E. Gaar, Stin-son, Mag, Thomson, McEvers & Fizzell, Kansas City, for relator.
    Thomas F. Eagleton, Atty. Gen., C. B. Burns, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
   LEEDY, Judge.

Original proceeding in mandamus at the relation of the City of El Dorado Springs to compel the ' respondent State Auditor to register and certify, under the provisions of § 108.240, RSMo 1959 and V.A.M.S., an issue of $60,000 of General Obligation Industrial Building Bonds of said city.

Acting under the authority conferred by § 23(a) of Article VI of the Constitution of Missouri, (which constituted Section 1 of Constitutional Amendment No. 4 adopted .at the general election held November 8, 1960) and an act passed by the 71st General Assembly in implementation of said constitutional amendment (H.C.S.H.B. 41 and 370,, Taws 1961, p. 189, now designated as §§ 71.790-71.850, RSMo 1959 and V.A.M.S., and sometimes hereinafter i-eferred to as the enabling act), the city authorized the issuance of said bonds'“for the purpose of purchasing and constructing a plant to be leased to Witt Printing Company, Incorporated, of El Dorado Springs, Missouri, for manufacturing and industrial development purposes, including real estate, buildings, fixtures and machinery.” All steps requisite to the authorization and issuance of said bonds under the foregoing constitutional and statutory provisions were duly taken. It is not contended that there was any deficiency or irregularity in any of such steps, nor with respect to the form or terms of the bonds. The Auditor has refused registration on the ground that the aforesaid constitutional amendment by which § 23(a) of Article VI •purportedly became part of our organic law is void, and for the further reason that the .enabling act is unconstitutional.

Amendment No. 4 was proposed by the 70th General Assembly (Joint House Resolution No. 11, Laws 1959, Resolutions p. 10a). It contained two sections, by the first of which § 23(a) — an entirely new provision — was added to Article VI, as follows:

“Section 23(a) By vote of two-thirds of the qualified electors thereof voting thereon, any city or incorporated town or village within any county in this state which has less than four hundred thousand inhabitants according to the last preceding federal decennial census, may become indebted for and may purchase, construct, extend or improve plants to be leased or otherwise disposed of pursuant to law to private persons or corporations for manufacturing and industrial development purposes, including the real estate, buildings, fixtures and machinery; and the indebtedness incurred hereunder shall not be subject to the provisions of Sections 26(a), 26(b), 26(c), 26(d) and 26(e) of Article VI of this Constitution; provided, such indebtedness incurred hereunder for this purpose shall not exceed ten per cent of the value of taxable tangible property in said city, or incorporated town or village as shown by the last completed assessment for state and county purposes.”

Section 2 of said Amendment No. 4, while technically repealing pre-existing § 27 of the same article and inserting in lieu thereof a new section, actually worked only the addition of those words and figures which are italicized below, together with a slight change in the punctuation previously existing. As so amended, § 27 of Article VI reads as follows:

“Any city or incorporated town or village in this state, by vote of four-sevenths of the qualified electors thereof voting thereon, may issue and sell its negotiable interest bearing revenue bonds for the purpose of paying all or part of the cost of purchasing, constructing, extending or improving any of the following: (1) revenue producing water, gas or electric light works, heating or power plants; (2) plants to be leased to private persons or corporations for manufacturing and industrial development purposes, including the real estate, buildings, fixtures and machinery; or (3) airports; to be owned exclusively by the municipality, the cost of operation and maintenance and the principal and interest of the bonds to be payable solely from the revenues derived by the municipality from the operation of the utility or the lease of the plant.”

A summary of the salient features of the enabling act will be found in Petition of Monroe City, Mo., 359 S.W.2d 706, 707, 708-709. El Dorado Springs is a city of the fourth class in Cedar County, Missouri, which county has a population, according to the 1960 census, of less than 400,000 inhabitants. It is conceded the bonds are being issued within the ten per cent limitation specified in § 23(a), Article VI of the Constitution. The steps taken in the instant matter are set out because of the newness of some of the provisions, constitutional and statutory, under which they were required. On March 29, 1962, the Board of Aldermen adopted resolutions approving three projects for industrial development to be carried out pursuant to said § 23(a) of Article VI of the Constitution and the enabling act, among which being the one involved in the instant proceeding as hereinabove summarized; pursuant to the resolution with respect to the latter project the Mayor and City Clerk were authorized to, and they did submit the plan for said project with the required data to the appropriate state agency, the Division of Commerce and Industrial Development of the Department of Business and Administration for approval; the Division duly examined said application,, held a hearing thereon, and on March 30, 1962, approved the same, and issued its certificate of approval, in which was incorporated its findings that the proposed project “will further the economic development, employment and general welfare of the City of El Dorado Springs, Missouri, and of the State, and that said project is economically feasible and will not become a burden on the taxpayers of El Dorado Springs, Missouri, insofar as we can determine from the facts and economic conditions existing at the present time”; the Board of Aldermen on April 2, 1962, duly passed and adopted Ordinance No. 953, approving said three projects, and calling a special election for the purpose of voting thereon, among them being Proposition No. 1, to issue the $60,000 general obligation bonds which form the subject matter of the present controversy; the ordinance provided that said special election be held on May 8, 1962, and designated the polling places and clerks thereof,, which ordinance was duly approved by the Mayor on April 2, 1962.

Pursuant to the provisions of said ordinance and the applicable laws of Missouri, due notice of said election was given by publication, and on May 8, 1962, said election was duly and regularly held, the proposal, including form of ballot used, having been submitted as prescribed in § 71.813 (by reference). The judges and clerks of election duly certified that said Proposition No. 1 carried by a vote of 484 to 68, and the Board of Aldermen, after having duly examined the poll books, tally sheets and other instruments relating to said election, passed Ordinance No. 956 so declaring, which ordinance was approved by the Mayor on May 8, 1962.

On May 24, 1962, the Board of Aldermen duly passed Ordinance No. 957 authorizing the issuance of the bonds in question, the same to consist of 60 bonds, numbered from 1 to 60, inclusive, each in the denomination of $1,000, said bonds to be dated May 15, 1962, and to become due serially on May 1 in the years 1963 to 1972, inclusive, all of said bonds to bear interest at the rate of four per cent (4%) per annum, payable May 1, 1963, and thereafter semiannually on November 1 and May 1 in each year. The bonds were issued accordingly and thereafter presented, as required by § 108.-240, to the State Auditor, who declined to register and certify the same for the reasons we have mentioned, and which will be hereinafter more fully developed.

Constitutional Amendment No. 4 is attacked as being void on the ground, first, that it “violates Section 2, Article XII of the Constitution by submitting two amendments as one.” The essential difference in the nature and characteristics of general obligation bonds and revenue bonds, both of which are authorized by the amendment, is emphasized and relied on as showing this alleged doubleness; that is, that the issuance of general obligation bonds under § 23 (a) (which bonds constitute an indebtedness and are payable from general municipal taxes) requires that all taxpayers of the municipality contribute to the cost of the purchase, construction, extension or improvement of plants for manufacturing and industrial development purposes, whereas the issuance of revenue bonds under § 27 (which bonds are payable solely from the revenues to be derived from the operation of a municipally owned utility, or the lease of a municipally owned plant for manufacturing and industrial development purposes) does not places a burden on the taxpayers, nor-is an indebtedness of the municipality thereby incurred for such purpose. And from this premise, respondent (invoking the provision of § 2(b) of Article XII of the Constitution that “ * * * More than one amendment at the same election shall be so submitted as to enable the electors to vote on each amendment separately”) argues that the voters were prevented from approving an amendment authorizing the issuance of revenue bonds unless they also voted for the amendment to authorize the issuance of general obligation bonds; and finally, “These two matters have not the slightest connection with each other and certainly cannot be treated as pertinent to one subject.” We disagree. Section 2(b) of Article XII of the Constitution has a further, and, we think controlling provision as applied to this amendment, to-wit, “No such proposed amendment shall contain more than one amended and revised article of this constitution, or one new article which shall not contain more than one subject and matters properly connected therewith.” (Emphasis supplied.) We say this because the subject of the amendment is the authorization of municipal financing of manufacturing and industrial development projects, by the issuance of bonds, so that “matters properly connected therewith” would reasonably include provisions authorizing the issuance of different types of bonds. Compare State ex rel. Board of Fund Commissioners v. Holman, (Mo.) 296 S.W.2d 482, and Kellams v. Compton, (Mo.) 206 S.W.2d 498, 4 A.L.R.2d 612.

What we have just said is applicable to, and rules that facet of the attack upon the constitutionality of the enabling act (§§ 71.790-71.850) based on the contention that authorization for the issuance of general obligation bonds and authorization for the issuance of revenue bonds constitute two different subjects, and the act having embraced both, it was violative of § 23, Article III, because containing more than one subject.

Respondent further contends that Amendment No. 4 is void because the following ballot title under which the proposed amendment was submitted is fatally defective :

“To authorize any municipality within any county having less than 400,000 population by a Yz vote to become indebted, not to exceed ten per cent of the value of the taxable property in the municipality, to acquire, construct, extend or improve plants, including real estate, buildings, fixtures and machinery, to be leased or disposed of to private interests for manufacturing and industrial purposes and to authorize any municipality by a ⅜ vote to issue revenue bonds for such plants, to be so leased to private interests.”

The respects in which respondent contends the ballot title was fatally defective (as respectively stated under his “Points Relied On”) are these: (1) In that it exceeded the 25-word limitation thereon as imposed by § 125.030; (2) In that it “did not state that one new provision [§ 23(a)] was being adopted, and a change was being made in an existing provision [§ 27, Art. VI] of the Constitution”; and (3) In that it “did not state fully the proper meaning and effect of such proposed amendment.”

The statutory scheme for devising ballot titles for proposed constitutional amendments is to be found in § 125.030, the pertinent provisions of which may be thus summarized: The attorney general in the first instance is to “provide and return to the secretary of state an official ballot title for such proposed constitutional amendments. The official ballot title may be distinct from the legislative title of such proposed constitutional amendment and shall express in not exceeding twenty-five words the purpose of such proposed constitutional amendment. In making such official ballot title the attorney general shall, to the best of his ability, give a true and impartial statement of the purposes of the proposed constitutional amendment, and in such language that such official ballot title shall not be intentionally an argument likely to create prejudice either for or against such proposed constitutional amendment.” The section further provides for an appeal to the circuit court (within a limited time) by any citizen who is dissatisfied with the official ballot title thus provided. The circuit court is thereupon required to “examine such proposed constitutional amendment, hear arguments, and in its decision thereon certify to the secretary of state an official ballot title * * in accord with the provisions and intention of this section.” The decision so rendered is final.

The essential purpose of the amendment was to authorize, constitutionally, municipal financing of projects for manufacturing and industrial development purposes, by a city or incorporated town or village within any county having less than 400,000 inhabitants, by the issuance of its general obligation bonds (in an amount not exceeding ten per cent of the value of taxable tangible property in the municipality, and making §§ 26 (a), 26(b), 26(c), 26(d) and 26(e) of Article VI of the Missouri Constitution inapplicable to the indebtedness thereby incurred), and to extend to projects of that nature of all cities, incorporated towns or villages (without limitation as to county population) the pre-existing scope of constitutionally authorized revenue bond financing for municipally owned utilities.

Manifestly, the 25-word limitation upon ballot titles imposed by § 125.030 was not observed, nor, we may add, do we appreciate how under the circumstances it would have been possible to have done so and at the same time obey the further and overriding mandate of the same section that the ballot title give a true and impartial statement of the purposes of the proposed amendment. In these circumstances, the foregoing title limitation provision should be held to be directory, and not mandatory, and that failure to comply with it, standing alone, is insufficient to invalidate the bonds.

To express the purpose of a proposed amendment under the terms of § 125.-030 is to focus attention upon and to make known the end to be achieved, not the details of the dependent enactive process involved. It was therefore unnecessary for the ballot title to state that proposed § 23(a) was a new section, and that proposed § 27 constituted an amendment of the existing section bearing the same designation.

We consider next the ground of assignment “(3)” against the ballot title. As will be seen, it does not on its face disclose wherein it is claimed there was any failure of the title to “state fully the proper meaning and effect of such amendment”; but the omission thus complained of is pinpointed or developed in the printed argument as meaning the failure to mention the provision that the indebtedness authorized by § 23(a), Article VI, is in addition to the indebtedness permitted by §§ 26(a), 26(b), 26 (c), 26(d) and 26(e) of the same article. The theory on which this proposition is advanced is, first, that the ballot title consisting of 85 words (60 more than the number prescribed by § 125.030) descended into particularities, and in view of these facts, and because of the importance to the voters of the features of these omitted provisions, it is contended there is no justification for the failure of the ballot title to mention them. Secondly, it is urged that because rules of statutory construction are applicable in construing constitutional provisions, the general rules relating to titles to legislative acts should be applicable here; and consequently, because of having descended into particularities, but nevertheless failing to disclose the fact that the indebtedness authorized by § 23(a) of Article VI was in addition to the provisions of §§ 26(a)-26(e), both inclusive, of Article VI, the title was unfair and misleading and rendered void the purported adoption of the amendment.

We do not agree with either facet of the contention. In the very nature of things it is not contemplated that a ballot title to a constitutional amendment shall descend into particularities (as is permissible under some circumstances in legislative enactments). The contrary — brevity and directness — is the norm, as witness the word limitation fixed by statute. Condensed form of statement of the purpose of a proposed constitutional amendment (if otherwise complying with the statute and other rules in that regard) is desirable, if not indispensable, in facilitating the right of franchise by the average citizen.

In view of what seems to have been the virtually compelling necessity of exceeding the word limitation, it would have been prudent and justifiable for the title as thus prepared to have also made reference to those provisions the omission of which is now complained of; but even so, we are not persuaded that such omission rendered the title bad, unfair or misleading, nor made it subject to governance under rules relating to legislative bill titles.

The validity of Amendment No. 4 is also attacked on the ground that its provisions are broader than its legislative title, in that the latter refers only to authorizing municipalities to “acquire and lease properties for manufacturing and industrial development purposes,” whereas § 1 of the amendment (now § 23(a), Article VI) provides that such properties may be “leased or otherzvise disposed of pursuant to law.” (Emphasis supplied.)

The substance and effect of the argument made in support of this point is that titles to legislative resolutions and titles to legislative bills are on the same footing, and are to be judged by the same standards. Titles to legislative bills are governed by § 23, Article III of the Constitution, which provides that “No bill shall contain more than one subject which shall be clearly expressed in its title,” etc., but we have not found such a provision applying specifically to titles of legislative resolutions. There would be less reason for critically eyeing the title of a legislative resolution submitting a constitutional amendment than there would be in the case of a bill. In the latter instance, when passed and approved, it becomes law by its own force; in the former, no such finality attaches, it having merely submitted the proposal to the electorate for consideration and determination by vote. And, to this end, the statute (§ 125.030) expressly provides that the “ballot title may be distinct from the legislative title of such proposed constitutional amendment * * *.”

In any event, the legislative title did not descend into particularities, so even if the rule contended for by respondent were applicable, it will be seen that the title, although general, fairly embraces the subject matter covered by the amendment as a whole. Due to the differing provisions of the separate sections of the amendment, it would have been difficult to include a summary of each in a single legislative title without descending into particularities. In this connection, it is to he noticed that apart from the difference in the character of bonds respectively authorized by the two sections of the amendment, there is also a difference in their provisions with respect to the use and disposition of the plants. Those financed by general obligation bonds under § 23(a) are clearly made subject to being “leased or otherwise disposed of pursuant to law,” whereas § 27 (which also embraces the subject of municipally owned utilities) provides for revenue bond financing for “ * * * (2) plants to be leased to private persons or corporations for manufacturing and industrial development purposes * * *; to be owned exclusively by the municipality, the cost of operation and maintenance and the principal and interest of the bonds to be payable solely from the revenues derived by the municipality from the operation of the utility or the lease of the plant.” (Emphasis supplied.)

The overall purpose and intent of the amendment (that of authorizing municipal financing of plants for manufacturing and industrial development purposes) was sufficiently expressed in the legislative title, and the omitted matters are to be regarded as details not necessary to be included.

One of the several attacks upon the constitutional validity of the enabling act is directed against what is now § 71.850, which provides as follows: “Any municipality may sell or otherwise dispose of the property, or buildings or plants acquired under sections 71.790 to 71.850 upon approval by the division of commerce and industrial development. The terms and method of the sale or other disposal shall be established by the division.”

It is charged that this section of the statute is “invalid, unconstitutional and void because such section provides for 'sale’ of plants while the Constitution provides only for leasing or other disposition similar to leasing.” We have just noted that § 23(a), Article VI — the section here directly involved — provides that industrial development properties may be “leased or otherwise disposed of pursuant to law.” This language clearly comprehends and sanctions a sale (being a disposition otherwise than by leasing) if and when made “pursuant to law.” The only concrete example cited of a “disposition similar to leasing” is “by renting the plants from month to month.” While the similarity is striking, the example is not convincing. We think it too plain for argument that the construction respondent would have us place on the quoted language of § 23(a), Article VI, is too narrow and strained, and must be rejected.

A further charge of unconstitutionality is directed against the section because it purports to give municipalities the unrestricted right to dispose of plants to whomsoever the Division of Commerce and Industrial Development approves without regard to the use to which they will be put, whereas § 23(a), Article VI, limits the leasing or other disposal of said plants “to private persons or corporations for manufacturing and industrial development purposes.” Even if the section goes beyond the limits permitted by § 23(a) in the respect just mentioned, and we think it does, it does not follow that the bonds are invalid, this because the section is clearly sever-able, and without it a workable act remains. (This ruling, of course, eliminates the issue of whether said section is unconstitutional as constituting an invalid delegation of legislative power to the division.)

Also, as presently written, § 71.850 would seem to be bad as applied to the sale of plants financed by revenue bonds under § 27, Article VI, which section, on its face, appears to strictly limit the right of the municipality in disposing of industrial development plants to the one method therein specified, i. e., leasing them. “[Pjlants to be leased to private persons or corporations for manufacturing and industrial development purposes,” says § 27, Article VI, so if that language means what it seems to plainly say, the “sell or otherwise dispose of” provision of § 71.850 would be unconstitutional (except as to leasing) insofar as applying to revenue bond financed plants. We make this observation in the light of the disposition made of the issue raised by relator as to the section’s constitutionality, and as a caveat in the redrafting of any new or substitute legislative provision which that ruling may prompt.

Insofar as § 71.847 may be construed as authorizing the leasing of plants for other than industrial development purposes, it is •subject to the same infirmity in that regard as was found in § 71.850, and what has just been said in that connection is applicable to, and governs the further claim that that portion of § 71.847 is constitutionally invalid.

There are several other provisions of the so-called enabling act which are broader than, or do not coincide with, some of the provisions of Amendment No. 4, for which reason it is urged that said sections are unconstitutional. For example, § 71.793 provides: “The municipality may carry out projects for industrial development under the terms of sections 71.790 to 71.850.” By § 71.790, “municipality” is defined as meaning “any city, incorporated town or village of the state,” and the term “project for industrial development” is defined by the same section as meaning “the purchase, construction, extension and improvement of industrial plants, including the real estate, buildings, fixtures, and machinery.” The invalidity of § 71.793 is charged to lie in the fact that, by its terms, it is not limited to cities in counties of less than 400,000 population, which are the only cities authorized by § 23(a), Article VI, to “purchase, construct, extend or improve plants to be leased or otherwise disposed of pursuant to law to private persons or corporations for manufacturing and industrial development purposes.” The issuance of general obligation bonds under said constitutional provision is limited as thus contended; however, this contention overlooks the fact that § 27, Article VI, with reference to the issuance of revenue bonds is not so limited, the language thereof being, “Any city or incorporated town or village * * * may issue and sell its negotiable interest bearing revenue bonds,” so the statute is consonant with this provision. Inasmuch as § 23(a) Article VI, applies only to cities in counties of less than 400,000, only those cities may issue bonds under it. El Dorado Springs is such a city. Accordingly, the failure to limit the operation of § 71.793 to such classification would not render the section unconstitutional.

We do not read §§ 71.793, 71.803, 71.807, 71.810 and 71.813 as permitting the purchase, construction or improvement of industrial plants by a mere majority vote of the governing body of a municipality in a county of less than 400,000. But if they do so, it is not contended that they authorize, independently of §§ 23(a) and 27, Article VI, which we have been considering the issuance of bonds (general obligation or revenue) for the purpose, and in this event there would be no conflict with either of said constitutional provisions. As respondent’s challenge of the constitutional validity of these statutes under Point VI of his brief presupposes the meaning first above indicated, such challenge need not be discussed.

We find no unlawful delegation of legislative power in the provision of § 71.-827, italicized below, that after an election which results unfavorably to a proposition to issue either general obligation bonds or revenue bonds to finance a project which has been approved by the division, “then no second or other election shall be ordered or held until the division determines that the election may be held.” It is so assailed on the ground that the section sets no standards for determining the matter thus committed to its discretion. While it is true that the section itself does not set forth standards, yet when the act is viewed as a whole, we are of the opinion that it is to. be implied that the standards required for the approval of the project in the first instance continue to relate to it, and hence the division is not wholly without a guide for the exercise of its discretion in determining when and if a proposal should be resubmitted.

Finally, it is claimed that the vote taken was only on the proposition for the issuance of general obligation bonds, and not on the question of authorizing the city to acquire the plant for which the bonds were voted; in other words, that two expressions of the voters are required, one on authorizing the project, and another on the issuance of bonds. We think the proposition as submitted on the ballot (the text of which is hereinabove set out) was all that was required.

The alternative writ should be made peremptory; it is so ordered.

All of the Judges concur.

      . All statutory references are to RSMo 1959 and Y.A.M.S., unless otherwise expressly noted.

      . “JOINT RESOLUTION submitting to the qualified voters of Missouri an amendment to Article VI of the Constitution of Missouri authorizing cities, towns and villages to acquire and' lease properties for manufacturing and industrial development purposes and to authorize the incurring of indebtedness by cities, towns and villages for such purposes.”