text:
    THE STATE ex rel. CHICAGO, BURLINGTON, & QUINCY RAILROAD COMPANY v. EDGAR B. WOOLFOLK, Judge, and THOMAS M. McGINNIS, Prosecuting Attorney.
    In Banc,
    December 21, 1916.
    1. INJUNCTION: To Prevent Crime: Public Nuisance. The power of a court of equity to enjoin the doing of acts threatening irreparable injury to property rights, or which would constitute a public nuisance, cannot be divested because the performance of such acts would be a violation of the criminal law; on the other hand, a corn of equity is powerless to enjoin the commission of any crime not violative of property rights, nor involving the creation of a public nuisance.
    2. -• Public Nuisance: Allegation: Conclusion of Law. An allegation in the petition for injunction that the acts of the defendant railroad company in transporting and delivering large quantities of intoxicating liquors, including whiskey and beer, at named towns in the county, to “boot-leggers,” and other persons engaged in the illegal sale of intoxicating liquors without having or maintaining any place of business, constitute a public nuisance, is only expressive of a legal conclusion, and unless other allegations make a case to which the words “public nuisance” are legally applicable the petition is not helped by the insertion of those words.
    3. -:- — : Necessary Allegation: Causal Connection. A petition for injunction charging that the acts of defendant constitute a public nuisance, which fails to set out facts showing that the acts are the proximate and efficient cause of the creation of a public nuisance, is insufficient. A court of equity cannot enjoin any transaction, however violative of the criminal law, which does not bear such a causal connection to the public nuisance averred in the petition.
    4. -: -: No Causal Connection: Transportation and Delivery of Intoxicating Liquors. The' transportation by a railroad company of intoxicating liquors to certain specified stations in a county which has adopted the Local Option Law and their delivery there to “boot-leggers” and other persons who maintain no place of business, do not in and of themselves necessarily produce such a degree of popular intoxication as to create a public nuisance. The transportation and delivery of intoxicating liquors do not alone produce the intoxication; and unless the petition alleges that the railroad company is in some way connected with the sale to and distribution among the consumers of the liquor, or does some act which necessarily creates a state of general drunkenness or disorder it does not charge the company with a public nuisance.

      5. ———: -: Criminal Act: Delivery of Intoxicating Liquors. A court of equity is possessed of no power to enjoin the mere violation of those criminal' statutes (Secs. 7227, and 7228, R. S. 1909) which forbid, under penalties, the receiving, storing,, keeping or delivering, as agent or otherwise, of intoxicating liquors, without a license as a dramshop-keeper or wholesaler, or in any county . that has adopted the Local Option Law; but it does not follow that a railroad company or any other person will he permitted with impunity to store or deliver such liquors in violation of those statutes.
    Prohibition.
    Writ granted.'

      M. G. Roberts and Hays, Heather & Henwood for relator.
    (1) The real and vital question in the ease is this: The facts pleaded-in the information do not authorize the Pike Circuit Court as a court of equity to entertain the proceeding and pass a decree. - (a) The bill exhibits no equity and is not susceptible of any conceivable amendment whereby it can be made to show jurisdiction in a court of equity over the subject-matter. The defect is not of form but of substance. It is true the bill may, by liberal construction, be held to state that relator’s alleged acts constitute a “public nuisance.” Such a conclusion upon the part of the pleader is negatived however by the very facts from ..which it is drawn. The presence of that allegation lends no support to the bill if the facts show the acts do not constitute .a public. nuisance. Ex parte Lay-master, 260 Mb. 613; In re Chambers, 182 S. W. 775. (b) The bill .does not allege any facts even tending to show that relator was conducting a public nuisance, as that term is known in law, but, on the contrary, it shows upon its face that the primary purpose of the bill is to enforce a criminal statute by injunction. The injunctive relief sought against the relator is not a mere incident to the prevention of any particular place being so used as to constitute a public nuisance. This court has held that courts of equity have no jurisdiction to enjoin the mere breach of the criminal law. State ex rel. v. Canty, 207 Mo. 439; State ex rel. v. Lamb, 237 Mo. 437; State ex rel. v. Kirkwood Club, 187 S. W. 819; Ex parte Laymaster, 260 Mo. 613. (c) Neither the illegal sale nor the transportation and delivery of intoxicating liquors was a public nuisance at common law, nor has either been made so by statute. The term “public nuisance” is necessarily applied and limited to a fixed place where something .occurs or transpires which the law declares to he a nuisance to the community at large, because it is not only injurious to public safety and good morals but is also, and primarily, public in its nature and in its manifestations. State ex rel. v. Schweichardt, 109 Mo. • 496; 17 Am. & Eng. Ency. Law (2 Ed.), p. 318; Ex parte Laymaster, 260 Mo. 620; State ex rel. v. Kirkwood Club, 187 S. W. 819. (d) It is a matter of common knowledge that the commodities which a railroad transports it delivers at its stations or warehouses. There the relator’s connection -with the • liquor shipments in question, presumably and so far as alleged in the bill, ends. There is no causal connection between relator’s act as a common carrier in delivering the liquor and the subsequent sale by the consignee to consumers, and certainly no causal connection between the delivery to consignees and the aéts done by the consumers of the liquor after they have purchased and consumed the liquor. To. make the relator liable for maintaining a public nuisance it must appear that the relator’s act was the direct and proximate cause of the final criminal result, and it must appear that the defendant intentionally set in operation a cause or agency that is adequate to accomplish the completed offense of maintaining a public nuisance. State v. Rankin, 2 S. C. 438, 16 Am. Rep. 737; Comm. v. Harrington, 3 Pick. (Mass.) 26.

      Thomas B. McGinnis for respondent.
   BOND, J.

I. Upon the presentation of its petition for a writ of prohibition a provisional writ was awarded to relator by this court, whereupon the respondents, the judge and prosecuting attorney of Pike County, Missouri, filed a demurrer, on the ground, first, that the petition for prohibition included an allegation that other prosecuting attorneys had instituted like suits to the one sought to be prohibited in this case; second, that the petition itself stated no facts to warrant the issuance of the writ. Thereupon the parties entered into a stipulation that this proceeding should be considered at issue upon the demurrer to the petition and that if the demurrer should be sustained, then the provisional writ should be quashed, and if the demurrer should be overruled, that final judgment should go against respondents without further leave.

The object of this proceeding is to prevent the circuit court of Pike County from considering, on its own chancery side, the causes of action alleged in a petition, filed therein by the respondent prosecuting attorney, stating in substance, his official position, and that the defendant ' corporation is a railroad carrier in that county maintaining offices where it has heretofore delivered commodities, including intoxicating liquors, to persons to whom they were consigned; that on the 23rd of November, 1911, Pike County, outside the corporate limits of the city of Louisiana therein, adopted a Local Option Law of this State; that for many years divers persons in said county had been and are engaged in the illegal selling, storing and delivering of intoxicating liquors, including beer and whisky, in violation of said Local Option Law and without any authority so to do; that some of said persons maintain places of business nominally as drug stores and other places of business, when in truth they are not engaged in any legitimate business whatever; that other persons are engaged in the illegal sale and delivery of such intoxicating liquors without having or maintaining any nlaces of business and are commonly designated as “boot-leggers;” that by reason of such illegal sales and delivery of liquors, including beer and whisky, divers persons have become and continue so to become intoxicated and “in such condition disturb and destroy the peace and endanger the persons and the property of the good people of said county at the places of Ashburn, Annada and Clarksville, and to the extent that the same has become a menace to society and to property and a great nuisance, and all greatly to the annoyance and inconvenience of the good people of said Ashburn, Annada and Clarksville, and their respective communities.” Plaintiff further states that the defendant, knowing that such persons are and have been engaged in such illegal selling and delivering of such intoxicating liquors, and in such lawless and disorderly conduct, has transported and continued to transport and deliver to said persons large quantities of intoxicating liquors, including beer and whisky, at its stations at the said Ashburn, Annada and Clarksville, and its offices at said places in Pike County, Missouri, and will continue to so transport and deliver to such persons such intoxicating liquors, including beer and whisky, is in violation of the law, and that by so doing defendant aids and abets said parties in the illegal sale and delivery of and traffic in said intoxicating liquors, including beer and whisky, and in encouraging and promoting illegal sales and deliveries of such intoxicating liquors in said county, to the great scandal, inconvenience, annoyance and disturbance of the people of said county.

“Plaintiff further states that it has no adequate remedy at law in the premises.

“Wherefore plaintiff prays that the defendant be perpetually enjoined from receiving and transporting and delivering intoxicating liquors, including beer and whisky, to persons at such places aforesaid, to-wit, Ash-burn, Clarksville and Annada, in said Pike County, Missouri, and that in the meantime, until a hearing of this cause can be had, the defendant be temporarily restrained from so doing and for other and proper relief.”

In the absence of the circuit judge a temporary restraining order was awarded upon the foregoing petition by two judges of the county court. Thereafter, the petition was filed in the' office of the circuit clerk and presented to respondent Edgar B. Woolfolk, the judge of said court in chambers, at the instance of relator, who then moved the circuit court to dissolve the injunction for specified rea'sons, one being that the petition was without equity on its face. This motion was overruled and thereupon the judge of said circuit court awarded a modified restraining order, enjoining the defendant railroad from receiving for transportation or delivery “at the towns of Clarksville, Annada and Ashburn in Pike County, Missouri, or either of said towns, any intoxicating liquors, including beer and whisky, at any of the station buildings or offices of said company, defendant herein, intended by any' persons interested in such intoxicating liquors, including beer and whisky, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of the law of the State of Missouri, respecting the handling, selling, storing and dispensing of intoxicating liquors; and that said defendant is further enjoined and restrained from receiving for transportation or delivery at either of said towns, any of said intoxicating liquors consigned to any person who bears the reputation of and is commonly known as a ‘boot-legger’ or the manager or proprietor of any ‘blind tiger’ of to the manager or proprietor ’or any other person or co-partnership engaged in the unlawful storage, dispensing or selling of intoxicating liquors in any of said towns,” etc., until the further order of said court. Upon the award of this temporary injunction, the relator, the defendant in said suit, entered its appearance in said cause, which was placed on the calender of said circuit court for trial at the next term thereof, and, thereupon said defendant in said cause filed its application in this court for a writ of prohibition against the further entertainment of jurisdiction thereof by the circuit court of Pike County. The issues were joined by the demurrer and stipulation above referred to.

II. The action sought to be restrained by our .writ of prohibition is a suit brought by the State through one of its prosecuting attorneys to enjoin the relator here, the defendant there, from doing certain acts in violation of the sections of the statutes governing the conduct of persons, other than licensed dramshop keepers, or authorized wholesalers of liquor residing in any county which has adopted the Local Option Law (R. S. 1909, secs. 7227, 7229), upon the theory that the acts in question constitute a public nuisance. The power of equity to enjoin the doing of acts threatening irreparable injury to property rights or which would constitute a public nuisance, is inherent and has been exercised, both in England and America, by courts of chancery since their evolution as a distinct tribunal, nor can this power be devested because the performance of such acts may be a violation of the criminal law. On the other hand a court of equity is powerless to enjoin the commission of any crime not violative of property rights nor involving the creation of a public nuisance, for the reason that it has no jurisdiction to enforce the criminal law nor to prevent the performance of any act of a criminal nature which does not necessarily prejudice private or public rights subject to its jurisdiction and control. [1 Joyce on Injunctions, sec. 60a; 14 R. C. L. 379, sec. 80; Shoe Co. v. Saxey, 131 Mo. l. c. 221; Kansas City Gunning Co. v. Kansas City, 240 Mo. l. c. 675 ; State ex rel. v. Lamb, 237 Mo. l. c. 457; In re Debs, 158 U. S. l. c. 593; Dobbins v. Los Angeles, 195 U. S. 223.]

It is clear, at a glance, that the petition on behalf of the State was framed, not to prevent any irreparable injury to property rights, but to prevent the doing of certain acts relating to the storing, delivery and transportation of intoxicating liquors (referred to in the statutes above cited), upon the theory that the sequence of such violations of the statute would be a public nuisance. It is, therefore, only necessary to consider whether the allegations of the petition for injunction present a case invoking the powers of equity to enjoin such a nuisance.

Obviously the use of the terms “public nuisance” is not sufficient for that purpose, for these are only expressive of a legal conclusion, and unless the allegations of the petition make a case to which these terms are legally applicable, the pleading is not helped by their insertion in it. "We have set out that portion of the petition filed in the lower court which refers to and describes the acts and doings of the defendant there (relator here). It will be seen from this language of the petition that the petitioner wholly fails to set forth any facts showing that the things done by relator were the proximate and efficient cause of the creation of a public nuisance. No court of equity can enjoin any transaction however violative of the criminal law on the part of the defendant, which does not bear such a causal relation to the public nuisance averred in the petition. None of the acts alleged to have been done by relator — i. e., the transportation of intoxicating liquors to certain stations in a specified portion of Pike County and the delivery thereof to the consignees — in and of themselves necessarily produced such a degree of popular intoxication as to create the public nuisance alleged in the petition to have followed the deliveries by relator of “intoxicating liquors, including beer and whisky,” in Pike County. As far as the allegations of the petition are concerned they amount to nothing more than an allegation of the sequence of such a -condition, not its necessary result. In this respect the petition is a type of the fallacious reasoning expressed by post hoc, ergo propter hoc. In order to connect the relator with the public nuisance, alleged in the petition to have resulted from the drunkenness and disorder referred to, it was indispensable that the plaintiff should show that these were caused directly by the mere act of the defendant in transporting and delivering .such commodities in Pike County, or that it participated in bringing about this condition. The subsequent happening of such a state of intoxication did not establish that it was caused by the act of the relator, there being no allegations that it was concerned either in the sale or distribution of intoxicating liquors to or among the people of this portion of Pike County, or that it did any act which necessarily created a state of general drunkenness and disorder at the places referred to in the petition.

It necessarily results from a consideration of the allegations in the injunction suit 'filed in the court below that their sum and substance was an averment of the violation of the three sections of the criminal law supra, which forbade under penalties, the receiving, storing, keeping or delivering, as the agent or otherwise, of intoxicating liquors, without a license as a dramshop-keeper or wholesaler, or in any county that hqd. adopted the Local Option Law. It follows, under the principles above stated and in view of the restricted allegations contained in the petition for injunction, that a court of equity is possessed of no power to enjoin the mere violation of the provisions of these criminal statutes (R. S. 1909, secs. 7227, 7229). Neither does it appear from its tenor that the defective petition could be so amended as to state a case within the jurisdiction of a court of equity, nor has the respondent favored us with any suggestions as to its amendment.

III. While we cannot escape the conclusion that the trial court acted without jurisdiction of the subject-matter in awarding the temporary injunction, it does not follow that either the relator or any other persons will be permitted to disobey with impunity the statutes governing the storing (ex-eept section 7226, held unconstitutional in State v. Rawlings, 232 Mo. 544) and delivery of intoxicating liquors; for those statutes are a part of the criminal law and should be enforced through the process of the criminal courts against all violators and it is the duty of the prosecuting attorney to see that this is done.

It results, from what has been said that our writ of prohibition against further action in the injunction suit filed in the trial court against relator shall be and is made permanent.

All concur.


source: Caselaw Access Project

author: GRAVES, C. J.

license: Public Domain

text:
    SETH S. BARNES et al., Appellants, v. BENJAMIN PIKEY et al.
    In Banc,
    December 21, 1916.
    .1. CONSTITUTIONAL.LAW: Title: Drainage District: Overseer. The title to the county court drainage law of 1913, Laws 1913, p. 278, which undertakes to repeal fourteen sections of a certain article of the Revised Statutes 1909, whose head note was, “Construction and Improvement of Ditches,” and refers to said article by said words, and enacts sixteen new sections in lieu thereof, is broad enough to contemplate a provision in the new sections for a ditch overseer and requiring him to keep said ditches free from obstructions and to pay him a salary for his services, since such things are germane to the improvement of ditches.
    2. -: Maintenance Tax: Due Process. The parties who must pay the ditch maintenance tax provided for by the drainage act of 1913, Laws 1913, p. 278, have their day in court when an attempt is made to enforce the assessments, and the act does not deny them due process of law.
    3. -: Retrospective. A law cannot be held to be retrospective simply because it requires citizens to do that which they have previously voluntarily done.
    4. DRAINAGE DISTRICT: Maintenance Tax: Apportionment According to Cost. Notwithstanding the statute (Sec. 5611b, R. S. 1909) says the maintenance tax to keep the ditches in proper condition shall be apportioned according to “benefits assessed,” a tax based on “the estimated cost of construction and incidental expenses as ' shown by the report of the viewers and as amended by the court” is legally apportioned, since relative uniformity is arrived at by using either as a basis, and the two mean the same thing.
    5. -: -: Remedy by Injunction. If the law in pursuance to which a tax to maintain drainage ditches is levied is constitutional, all other matters vital to the tax can usually be invoked in legal proceedings to enforce its collection, and need not be determined in an injunction brought to enjoin the collection of the tax.'

      Appeal from New Madrid Circuit Court. — Eon. Sterling E. McCarty, Judge.
    Affirmed.

      Oliver <& Oliver, E. F. Sharp and Thomas Gallivan for appellants.
    (1) The Act of March 27, 1913, is unconstitutional: (a) Because in contravention of section 28 of article 4, providing that no bill shall contain more than one subject which shall be’ clearly, expressed in its title. Constitution, art. 4, sec. 28; State ex rel. v. Baker, 129 Mo. 482; State v. Eawlings, 232 Mo. 544; State ex rel. 'v. Wiethaupt, 231 Mo. 456; State ex rel. v. Bronson, 155 Mo. 281; St. Louis v. Wortman, 213 Mo. 138; Williams v. Eailroad, 233 Mo. 674; State v. Sloan, 258 Mo. 305; State v. Fulks, 207 Mo. 26; State v. Heege, 135 Mo. 118; Cooley on Constitutional Limitations (4 Ed.), p. 182. (b) Because in contravention of section 30 of article 2 of the Constitution, which provides that no man shall be deprived of his property without-due process of law. Constitution, art. 2, sec. 30; State ex rel. v. Holtcamp, 245 Mo. 670; Charles v. City of Marion, 98 Fed. 11; Eailroad v. Chicago, 17 U. S. 585;. Ohiman v. Saw Mill Co., 222 Mo. 62; Wilcox v. Phillips, 169 S. W. 58; Embree v. Eoad Dist., ’ 166 S. W. 282; Davidson v. New Orleans, 96 U. S. 104. (c) Because in contravention of section 15 of article 2 which prohibits the enactment of. laws retrospective in their operation. Constitution, art. 2 sec. 15; Blum v. Ins. Co., 197 Mo. 513. (2) The county court in making the order and extending the so-called maintenance tax did not follow the provision of the law. Taxes being against common right and there being no inherent power -in the county court to levy same, the laws authorizing the levy must be strictly followed. Laws 1913, p. 279, sec. 5611B; Sec. 11418, E. S. 1909; State ex rel. v. Eailroad, 87 Mo. 239; Abbott v. Lindenblower, 42 Mo. 162; State ex rel. v. Shortridge, 56 Mo. 125; State ex rel. v. LeSeuer, 141 S. W. 888; Nell v. Morgan, 82 Mo. App. 119; Overall v. Ruenzi, 67 Mo. 203; Railway Co. v. Apperson, 97 Mo. 300. (3) The “ditch overseer” had no authority to let the work by private contract at exorbitant prices as was done in this case and the tax to meet this expense was without authority. The Statute says in plain words that he shall “hire laborers” to do the work. Ellsberry v. Black, 120 Mo. App. 23; Laws 1913, sec. 5611a. (4) Injunction will lie to pi -vent the collection of taxes levied without authority. Railroad v. Apperson, 97 Mo. 300; Bank v. City, 73 Mo. 555; Overall v. Ruenzi, 67 Mo. 203; Stinker v. Heman, 148 Mo. 354; Verdin v. St. Louis, 131 Mo. 26; High on Injunctions, sec. 574. (5) The petition presents ample grounds for equitable relief and an injunction is the only adequate remedy. There are several reasons for this: (a) It will prevent a multiplicity of suits. Verdin v. St. Louis, 131 Mo. 114; Breimeyer v. Bottling Works, 136 Mo. App. 84; Pomeroy’s Equity Jurisprudence (2 Ed.), sec. 245; High on Injunctions, sec. 574; Coal Co. v. St. Louis, 130 Mo. 329; Swope v. Weller, 119 Mo. 556; Michael v. St. Louis, 112 Mo. 610. (b) The fact that the “ditch overseer” did not follow the statute in doing the work is one capable of being proven only by parole testimony and a fact “not apparent on the face of the record,” making the assessment void. Verdin v. St. Louis, 131 Mo. 112; Mason v. Black, 87 Mo. 344; Clark v. Insurance Co., 52 Mo. 272; High on Injunction (2 Ed.), sec. 524. (c) The tax attempted to be levied, not being a special assessment collectible by suit, but in the way ordinary taxes are collected, plaintiffs have never had and do not have on opportunity to be heard, so injunction will lie to prevent the attaching of the statutory lien. Page & Jones on Taxation by Assessment, secs. 119 and 132; Embree v. Road Dist., 166 S. W. 287. (d) The petition alleges that the contracts for the doing of the work for which the tax is levied were fraudulently let. Fraud is always a ground of equitable relief and is in regard to taxes. High on Injunctions (2 Ed.), secs. 490, 500'. (e) There being a large number of. plaintiffs, it is proper that they should join in an action for equitable relief, their interest in the subject-matter being common to all. High on Injunctions (2 Ed.), sec. 574. (f) The tax casts a cloud upon the title to .the real estate of plaintiffs. This has always been a ground of relief by injunction. And it applies to restraint of tax collections. R. S. 1909, sec. 2534; Railway v. Apperson, 97 Mo. 300; Bank v. City, 73 Mo. 555; Winkler v. Halstead, 36 Mo. App. 25; State ex rel. v. Columbia, 111 Mo. 365; Arnold v. Hawkins, 95 Mo. 569 j N. St. Louis Soc. v. Hudson, 85 Mo. 32.

      S. J. Smalley for respondents.
    (1) Appellant’s first contention, that the act under which the said maintenance taxes was levied, is unconstitutional: (a) Because obnoxious to section 38 of article 4 of the Constitution, in that it contains more than one subject, and that the same is not clearly expressed in the title, has been ruled adversely to their claims. State v. Doering, 194 Mo. 409; O’Connor v. Transit. Co., 198 Mo. 622; State ex rel. v. Bransen, 115 Mo. 271. (b) Because in contravention of section 30 of article 2 of the Constitution, in that it attempts to deprive appellants of their property without due process of law. This contention is not well taken. Embree v. Road Dist., 166 S. W. 282; St. Louis v. Riebeson, 76 Mo. 470; Kansas City v. Huling, 87 Mo. 203; Springfield v. Weaver, 126 Mo. 436. (c) Because obnoxious to section 15 of article 2 of the Constitution, in that it is retrospective in its operation. This point was also correctly ruled against appellants. Constitution, art. 2, sec. 15. (2) Appellants’ second contention, that the court erred in not bolding that the county court bad exceeded its authority in levying a flat tax instead of apportioning said tax upon the basis of benefits assessed to the land in said district was properly overruled. Secs. 11522, 11399, 11383, R.. S. 1909. (3) Appellants’ contention, that the acts of the ditch overseer in making contracts for clearing said ditches of hrnsh, briars and weeds, were without authority of law, is based upon a misconception of the law, which does not prescribe the manner in which said work shall be done nor prohibit its being done by contract. Laws 1913, p. 278, sec. 5611B. ' (4) A taxpayer cannot maintain injunction to restrain the collection of illegal tax, except where the' threatened injury is irreparable, or such as could not be redressed by an action at law. No such circumstances appear upon the facts in the instant case and appellants have no equity. State ex rel. v. County, 32 Mo. 496; State v. County, 51 Mo. 350; Bank v. Meredith, 44 Mo. 500; Railroad v. Reynolds, 89 Mo. 146; Railroad v. Lowder, 59 Mo. App. 3. (5) The demurrer attacks the petition for repugnance. The grounds therefore go to the relief sought. The petition alleges the illegality of the acts of the county court in levying said taxes and of the ditch overseer in the manner of letting contracts for the work of clearing said ditches and at the same time attacks the validity of the law. These two positions are repugnant. It is - well settled that parties cannot take inconsistent positions, and the demurrer was rightly sustained on this ground. Mansfield v. Bank, 34 Mo. App. 200; Rutledge v. Railroad, 110 Mo. 312. (6) The petition alleges that the act of the Legislature under which the taxes in question were attempted to be levied and collected is unconstitutional, and that the levy was wholly unauthorized and void. This averment states the case out of court and injunction will not lie. Dean v. Todd, 22 Mo. 90; Sayre v. Tompkins, 23 Mo. 443; Lockwood v. St. Louis, 24 Mo. 20; State ex rel. v. County, 32 Mo. 496; Bank v. Meredith, 44 Mo. 503.
   GRAVES, C. J.

This is an equitable action, instituted by three taxpayers and landowners in Drainage District No. 18 of New Madrid County, the purpose of which is to enjoin the collection of a certain maintenanee tax, .which has been levied in said drainage district. To this petition the defendants demurred, for a great number of reasons, and the court sustained the same. Plaintiff refusing to plead further, judgment went against them and they have appealed. Constitutional questions bring the case here. Counsel for appellants thus state their petition and case:

“This is a proceeding instituted in the circuit court of New Madrid County, seeking to restrain the collection of a tax levied under the authority of an act approved March 27, 1913, and entitled ‘An act to repeal sections 5580, 5583, 5584, 5586, 5588, 5595, 5596, 5603, 5605, 5608, 5614, 5618, 5634 and 5635 of article 4, chapter 41, of the Revised Statutes of Missouri, 1909, relating to the construction and improvement of ditches, water courses and levees upon the petition of one or more landowers and to enact new sections in lieu thereof and in addition thereto, to be known as follows: 5580, 5583, 5584, 5586, 5588, 5588a, 5595, 5596, 5603, 5605, 5608, 5611a, 5611b, 5614, 5618 and 5619a, with an emergency clause,’ and found upon page 271 of the Laws of 1913.
“The petition in brief sets up three different and distinct reasons why this tax should be enjoined and restrained: ,
“1. It' avers that the act of the General Assembly, approved March 27, 1913, is unconstitutional:
“a. Because the act is in contravention of section 28 of article 4, ■ providing that no bill shall contain more than one subject which shall be clearly expressed in its title; .
“b. Because the act is in contravention of section 30 of article 2 of the Constitution of Missouri providing that no person shall be deprived of life, liberty or property without due process of law;
“c. Because the act is in contravention of section 15 of article 2, of the Constitution of Missouri, prohibiting the enactment of laws retrospective in their operation;
“2. The petition ávers that notwithstanding the law is deemed to he unconstitutional, yet even conceding that it was, the county court of New Madrid County in making the levy of the tax complained of did not even follow the law as passed by the Legislature, in this that the law says that the so-called maintenance tax shall be assessed upon the basis of ‘benefits assessed’ for original construction, while the levy as made by the county court is a certain percentage on the estimated ‘cost of construction and incidental expenses’ as shown by the report of the viewers.
“3. The petition further charges that the ‘ditch overseer’ in having the work done for which the tax was assessed did not follow the law in. this, that while the act provides that the ditch overseer shall ‘hire laborers’ and do the work of clearing the right of way, in truth and in fact the ditch overseer let the same at private contracts without competition to friends at exorbitant prices, in many instances three or four times the actual cost of doing the work, thus creating large and uncalled for liabilities.”

The divers grounds of demurrer, in so far as necessary, will be noted in course of the opinion. The vital questions are really raised by a general ground in the demurrer, to the effect that .the petition fails to allege facts sufficient to state a cause of action.

I. The first insistence is that sections 5611a and 5611b of the Act of 1913 (Laws -1913, pp. 278 and 279) are b®y°nd ^be purview of the title and are therefore unconstitutional and void. The title of the act reads:

“An Act to repeal sections 5580, 5583, 5584, 5586, 5588, 5595, 5596, 5603, 5605, 5608, 5614, 5618, 5634 and 5635 of article 4, chapter 41, of the Revised Statutes of Missouri, 1909, relating to the construction and improvement of ditches, water courses and levees upon the petition of one or more landowners, and to enact new sections in lieu thereof and in addition thereto, to be known as follows: 5580, 5583, 5584, 5586, 5588, 5588a, 5595, 5596, 5603, 5605, 5508, 5611a, 5611b, 5614,' 5618 and 5619a, with an emergency clause. ”

Section 5611a first provides for the appointment by the county court of “a competent ditch overseer” annually. It then provides his duties and work to be done and wages, and then concludes thus:

“All the -expenses of said maintenance and repair work, to be done by the overseer, as provided for in this section, shall be charged to the district for which the work is done, and shall be paid by the county court in warrants on said district, to be paid out of the levy and assessments made for maintenance purposes.”

Section 5611b is the section which provides for the levy of a maintenance tax, and reads:

“The county court shall have power at the May term of court of -each year to levy an assessment of tax upon each tract or parcel of land or corporate property within the district to be used in maintaining, preserving, restoring, repairing, strengthening and replacing the drains, ditches, levees and other works of the district. Said tax shall be known as a ‘maintenance tax’ and shall be apportioned upon the basis of benefits assessed for original construction, and shall be limited in any one year to ten per cent of the original cost of construction. It shall be entered in a separate column in the ditch ■ tax book opposite each tract or parcel of land and corporate property in the district, by the county clerk, and it shall be certified to the county collector and by him collected in the same manner and subject to the same penalties for delinquency as the annual installment of tax: Provided, that where a levee of any district organized under the provisions of this law has been impaired or destroyed and conditions, in the -judgment of the court, require the same to be repaired or restored. immediately in order to prevent the land and other property in the district from being damaged by water, the county court may order the engineer of the district, without giving public notice, to employ teams, men, and machinery either by the day or by the job to repair or restore such levee, and the cost' of such work shall be paid for out of -the funds of the district derived from the maintenance tax levied under the provisions of this section.”

The question is, do these sections fall fairly within the purview of the title, or are they germane to matters fairly within the purview of the title 1 Article 4 of chapter 41, Revised Statutes 1909, is the county court law for the formation of drainage districts. It began with section 5578 and ended with section 5635. The Act of 1913 repealed 14 sections of this old law, and enacted in lieu thereof and in addition thereto 16 sections. The head note of article 4, chapter 41, Revised Statutes 1909, was:

‘ ‘ Construction and improvement of ditches, water courses and levees upon petition of one or more landowners.”

The. old law, sections 5613 and 5614, Revised Statutes 1909, provided for assessments for cleaning ditches, but the method of procuring the assessment is different. There is added, however, in the new law the “ditch overseer, whose duty it shall be to personally supervise and inspect all ditches in the county constructed under this article.” He is required to report their condition once per year to the county court, and report the amount required to maintain the ditches for the ensuing year. He is to file complaints with the prosecuting attorney when persons unlawfully obstruct the ditches. In addition this new section further says of the ditch overseer:

“He shall have the power and authority, and it shall be his duty at the expense of the district, to remove all obstructions from all ditches, however caused, and maintain said ditches and keep the banks and rights of way thereof free from debris, buildings, fences, flood gates, briers, bushes or trees within -thirty feet of the -bank, objects and conditions which are likely to injure or obstruct said ditches, and in the month of August of each year he shall employ laborers and cut all bushes, briers, trees and weeds from the rights of way of such ditches, not exceeding thirty feet from the edge of the ditches.”'

Do these matters fall fairly within the purview of the title, or are they germane to "things fairly within the title. We think so. The title by its reference takes in the title to article 4 of chapter 41. That broad title was “Construction and Improvement of Ditches.” The title of the Act of 1913 included this, and further stated that certain sections of the old chapter were repealed, and that new and additional sections were to be adopted. The legislators could not be mislead. There was fair notice that new sections were to replace old sections, and that additional sections were to be added. If these new sections are germane to the general subject of “constructing and improving ditches” they are within constitutional limitations. The work which this overseer was to do. was clearly within the line of improving ditches. The subject-matter was therefore clearly germane to the subject-matter clearly stated in the title. Much is said in the briefs about creating an office. The fact is the county court was permitted to employ a man by the year at the rate of $3.50 per day for time required in performing this work. Under very recent cases the title is sufficient to cover these sections. [State v. Doerring, 194 Mo. 398; O’Connor v. Transit Co., 198 Mo. 622, and cases cited.] In the Doerring ease, we have a title very similar to the one at bar. We also had quite broad additions .to the old law.

It is urged that these sections have been repealed by Act of 1915. So it may be, but this does not affect their constitutionality while they stood. We do not think the Act of 1913 does violence to section 28 of article 4 of our Constitution, and we so rule.

II. Nor is section 30 of article 2 (due process clause) of our Constitution violated by this law. The parties have their day in court when attempt is made to enforce these assessments. This question was fully reviewed by Woodson, J., in Embree v. Road Dist., 257 Mo. 593. The authorities are there all reviewed. The case was one of assessments 'for benefits, and the conclusions there are final here. No good purpose would be subserved in a further review of the cases upon the question. The exact point was at issue there, and we refer the curious to the discussion in that case.

III. Far less substance is found in the contention that the law violates section 15 of article 2 of the Constitution which prohibits retrospective laws. The proposition is thus uniquely stated by learned Counsel:

“In the case at bar it is alleged in the petition as one of the grounds for an injunction that these petitioners in pursuance of the provisions of section 5612; Revised Statutes 1909, did keep the said ditch open and free of obstructions on their respective lands, and did keep the banks thereof free from willows and other vegetation which had a tendency to grow in the water of said ditch, and having done this we respectfully submit that any act attempting to tax these petitioners for the doing of something which they had already done was as to them retrospective in its operation. ’ ’

The statement of the proposition is its own answer. When the things required by section 5612 are compared with the things required by the amendments, here challenged, it will be seen that other and additional things are mentioned. - But aside from this the statement quoted from counsel above does not make a retrospective law. The cases cited are not in point.

IV. The next contention is thus stated:

“By section 5611b of this act the county court was required to apportion said maintenance tax upon the basis of ‘benefits assessed’ for original construction, but the county court of New Madrid County specifically provided that a levy of four per cent should be based ‘upon the estimated cost of construction and incidental expenses as shown by the report, of the viewers and as amended by this court’ at the time of the organization of the said several drainage district.”

The purpose of this provision was to get at a relative uniformity for the maintenance tax. It should be recollected that when thv.se districts are - organized, the assessment for benefits, against the several tracts of lands, included an estimate for location expenses, as well as actual construction expenses. [Secs. 5589, 5591, R. S. 1909.]

So that when the law is critically examined the term “benefits assessed” for original construction, is the same as the “estimated cost of construction and incidental expenses as shown by the reports of the viewers and as amended by this court” contained in the order of the county court. This for the reason that the law makes these incidental expenses for organizing the district a part of the original construction cost. The new section says that this maintenance tax “shall be apportioned upon the basis of benefits assessed for original construction,” and original construction includes both actual cost of construction and the incidental expenses for the organization of .the district, mentioned by the order of the county court. There is nothing in the point.

V. Other points made have be'en examined, but we do not think they-are such as require further elaboration in this opinion. If the law is constitutional, as we think, all other matters are but minor things, which if vital to the tax, could be invoked in the legal proceeding to enforce the collection, pi0Wever, we note nothing that would defeat these taxes, in so far as the allegations of this bill are concerned.

The demurrer was well sustained on the general 'ground, and we will omit the discussion of specific grounds. The judgment’of the circuit court is affirmed.

All concur.


author: FARIS, J.

text:
    THE STATE ex rel. AMERICAN FIRE INSURANCE COMPANY v. JAMES ELLISON et al., Judges.
    In Banc,
    December 21, 1916.
    1. INSURANCE CONTRACT: Reasons for Forfeiture Clause. Actions to recover upon contracts of insurance in case of loss by fire are ordinarily cases at law; and absent some phase of equitable jurisdiction, antecedent reasons for inserting a forfeiture clause avoiding the policy in case of a mortgage or foreclosure sale cannot aid the court in construing a contract- otherwise free from ambiguity.
    2. -: -: Increase of Hazard. If the insurance contract does not make increase of hazard the condition for forfeiting the policy in case the property is mortgaged or the mortgage foreclosed, the courts cannot write into it a condition that the forfeiture .clause is to be valid only when the hazard is increased by the mortgage or ' foreclosure.
    3. -: Construction. Unambiguous contracts of insurance made by persons competent to contract, free from overreaching and other elements of fraud, are to be construed by the same law by which other contracts are construed. [Holding that the Court of- Appeals erred in' holding Springfield Steam Laundry Co. v. Traders’ Insurance Co., 151 Mo. 90, announced a different rule.]
    4. - — : -: Froof. If there is any warrant in law for construing an insurance- contract by any other rule than that used to construe other contracts made by persons competent to enter into them, the difference must rest in the quantum of proof necessary to prove an allegation of waiver, fraud, misrepresentation, mutual mistake or overreaching.

      Certiorari.

    Judgment Quashed.

      Fyke & Snider for relator.
    If the rule in Springfield Steam Laundry Co. v. Insurance Co., 151 Mo. 90, is applicable to this case the Court of Appeals has refused to follow that rule. That court says it is not applicable. The reason for the distinction is that this court sustained the contract condition on the ground the company might have been willing for the premium charged to insure mortgaged property but not to continue the insurance if the risk was enhanced by proceedings to foreclose the mortgage. Such is not the reason given by this court for the finding, but it is given as the probable reason why the contracting parties used the provision in the policy. The reason given by this court for the finding is, that the provision being in the contract, it must be enforced as made. “If the parties make such contracts they have no right to expect courts to disregard th«? law in construing them,” and “the court has no power in the absence of fraud or mistake to relieve from the obligation of contracts.” The Court of Appeals has disregarded the rule of this court in construing this policy for these reasons.

      Lathrop, Morrow, Fox & Moore, Charles M. Hoivell and Joseph S. Brooks for respondents.
    (1) The clause avoiding the policy, “If with knowledge of the insured foreclosure proceedings be commenced ... by virtue of any mortgage, or deed of trust,” is upheld by the courts only on the ground that such proceedings, or the giving of such notice, tend to increase the moral risk. Laundry v. Insurance Co., 151 Mo. 90; Titus v. Insurance Co., 81 N. Y. 410; Algase Co. v. Corporation of Royal Exchange Assurance, 122 Pac. (Wash.) 986; Kelly Co. v. Ins. Co., 47 So. (Fla.) 742; Medley v. Insurance Co., 47 S. E. (W. Va.) 101; Findlay v. Ins. Co., 52 Atl. (Vt.) 429; 2 Cooley, Briefs on Insurance, 1736 et seq.; Trabue v. Insurance Co., 121 Mo. 75. (2) Under the undisputed facts in this case there was and could be no increase in the moral risk because of tbe publication of notice of sale, and the insurance will not be forfeited for a mere technical violation of the policy. Cone v. Insurance Co., 117 N. W. (Iowa) 307; Insurance Co. v. Gibe, 44 N. E. (111.) 490; Kyte v. Assurance Co., 10 N. E. (Mass.) 518; Schloss v. Ins. Co., 37'So. (Ala.) 701; Forward v. Insurance Co., 37 N. E. (N. T.) f315; Weigen v. Insurance Co., 73 N. W. (Iowa) 862.
   FARIS, J.

This is an original proceeding by certiorari, whereby it is sought to quash the judgment heretofore rendered by the Kansas City Court of Appeals in the case of Terminal Ice & Power Company, appellant, v. American Fire Insurance Company, respondent, 187 S. W. 564, on the ground that the opinion therein is contrary to the opinion of this court in the case of Springfield Steam Laundry Co. v. Traders’ Insurance Co., 151 Mo. 90.

For convenience and brevity in designating the parties to that action and the parties to this one, we shall refer to the Terminal Ice & Power Company as “plaintiff,” to The American Fire Insurance Company as “defendant,” and to the parties in the instant case as “relator” and “respondents,” respectively.

The original action (the judgment wherein relator by this proceeding seeks to quash), was brought by plaintiff upon a policy of insurance issued by defendant, who is the relator herein. This policy of insurance prodded, among other things not here pertinent, as follows:

“This entire policy, ■ unless otherwise provided by' agreement indorsed hereon or added hereto, shall be void if ... with the knowledge of the insured foreclosure proceedings be commenced, or notice given of the sale of any property covered by this policy by virtue of any mortgage, or trust deed, or if any change other than by the death of the insured take place in the interest, title or possession of the subject of insurance whether by legal process or judgment, or voluntary act of the insured.”

Other facts in the case extrinsic to the clause above quoted from the policy of insurance, and which were considered by the learned Kansas City Court of Appeals as warranting the views held and the judgment entered by them, are thus clearly and succinctly stated by that learned court:

• “The property insured was a part of a manufactory owned by W. F. Lyons, who in 1908 transferred it to a corporation known as the W. F. Lyons Ice & Power Company, of which he was the principal stockholder and moving spirit. The corporation began its business career (which was short-lived and disastrous) by issuing and selling bonds for $100,000, which it secured by a first mortgage on all its property. Afterwards on November 5, 1909, it further encumbered the property with a second mortgage or trust deed executed and delivered to John H. Lynds, trustee, to secure notes for $20,000 for money borrowed for the use of the company. These notes were owned by Howard Vanderslice, J. S. Chick, John II. Lynds, and Fred Wolferman, and in December, 1909, the control of the corporation and its property and affairs was surrendered to these four holders of the second mortgage notes, whose number was reduced to three by the withdrawal of Wolferman, who sold his interest to the others. In 1910, suit was brought to foreclose the first mortgage and that suit was pending when the policy in question was issued. To protect their interests as second mortgages, Vanderslice, Chick and Lynds bought and became the owners of a large part of the bonded indebtedness and thereby obtained control of the foreclosure suit. They also became the owners of all of the capital stock of the W. F. Lyons Ice & Power Company, and Lyons retired from the corporation and its affairs. At that time the corporation was on the verge of bankruptcy, had lost its credit and had a bad reputation in the business world. Vanderslice, Chick and Lynds, in an obvious effort to ward off the attacks of creditors as well as to escape other consequences of such bad reputation, had the name of the corporation changed to the Terminal Ice & Power Company, early in 1911, and incorporated another company under the name of the Sheffield. Ice Company, which operated the factory under a lease from the Terminal Company for a term of two years. Both of these companies were controlled by Vanderslice, Chick and Lynds, who owned all the stock of both, the stock of the Sheffield Company being paid by the transfer to that company of the second mortgage notes . . .
“On April 2, 1913, while the factory was being operated by the Sheffield Company, plaintiff gave a written option to another' corporation, the City Ice Company, to purchase the plant, and in February, 1913, executed a lease to the City lee Company under which that company as lessee took possession of the property about June 1, 1913,- and proceeded to operate the factory. The fire occurred June 17th, and on June 30th, the City Ice Company formally notified plaintiff in writing of its decision to exercise the option and afterwards the sale was consummated.
“At about the time the City Ice Company took charge of the plant under the lease and shortly before the fire, Vanderslice, Chick and Lynds, acting in the name of the Sheffield Company, the bookholder of the second mortgage notes which, then amounted to about $30,000, had the trustee in the deed of trust securing the notes, advertise the plant for sale under the terms of that trust deed.
“This sale was made about two weeks after the fire, and the property was sold to Vanderslice, who bid $2,000, and a trustee’s deed was executed and delivered to him by Lynds, the trustee. The attorney for Vanderslice, Chick and Lynds testified that the advertisement and sale of the property under the second trust deed was pursuant to the request of all the parties in interest, viz., his clients and the City Ice Company, who desired ‘this title straightened out.’ We understand him to mean that the purpose of the sale was to secure the plant against the attacks of the general creditors of the old Lyons company in order that the property might be sold and conveyed, clear of all incumbrances, to the City Ice Company.”

The policy of insurance on which the action was instituted out of which this proceeding grew, was issued on September 20,1912. The fire which destroyed the property occurred on the 17th day of June, 1913. Under these facts it is plain that neither the antecedent nor the subsequent acts of the owners of the property, xior the facts touching the title thereto, can be of any help in the case, except upoxx the theory that we are to read into the insurance contract between the parties a provision that the clause therein against a foreclosure, or a sale, or advertisement for sale, under a deed of trust, shall render the policy void, only when a violation of it shall actually serve in the opinion of the trial court or jury, to increase the hazard. For clearly the sole reason for the offering of proof of these facts was to show that the hazard was not -in fact increased. •

The facts of the case and the condition of- the ownership at and after the making of the contract of insurance (till the fire happened), run thus: The plaintiff in the suit below owned the insured property. On this property there was a first deed of trust to secure bonds in the sum of $100,000. Vanderslice, Chick and Lynds owxxed “a large part of the bonded indebtedness” above-mentioned. There was also on the property of plaintiff, Terminal Ice .& Power Company, a second mortgage (the one now here vexixxg us) securing notes amounting, principal and interest, to $30,000. These notes formerly held by Vanderslice, Chick and Lynds, had been by them transferred to the said Sheffield Ice & Power Company in payment, as stated, qf their stock in the latter company* and were at the time of the fire owned by this company. From (and probably before, but that does not here concern us) the time the property was insured on the 20th day of September, 1912, till the first day of June, 1913, the Sheffield Ice & Power Company, the ■ holder of the second mortgage, was in possession, operating the property under a lease. But on the last-mentioned date the City Ice Company went into possession under a lease of the property and was operating it when the fire happened. In February, 1913, said City Ice Company took an option to purchase this property, and after the fire and the foreclosure sale did so purchase it. The Sheffield Ice & Power Company, in order to ‘ ‘ straighten the title out, ’ ’ began proceedings to foreclose the second mortgage and sell the property, and while these proceedings' for sale were going forward, but prior to the sale, the part of the property here in controversy burned.

The 'learned Court of Appeals finds that this “straightening out of the title” was for the purpose of effectually putting it out of the power of creditors of Lyons and of the W. F. Lyons Ice & Power Company, to harass the proposed new purchasers by efforts to collect their claims against the last-named person and corporation, out of the property sold. But it also .finds that while the concern’s secured debts were $120,000, the entire property was worth only $110,000, so that there was in fact no equity .out of which the unsecured creditors could be paid. From this and other facts which they state and' we quote, it is argued that no increase in hazard occurred and that no forfeiture therefor should be adjudged.

It is urged that such a holding is directly contrary to our opinion in the case of Springfield Steam Laundry Co. v. Traders’ Insurance Co., 151 Mo. 90, which question is therefore the only point up for our ruling here.

The learned Court of Appeals in their able and exhaustive opinion discuss the Springfield Laundry case and find themselves able to distinguish it from the facts in the case upon which the instant proceeding is bottomed. Upon this point and upon the manner in which the case is thus sought to be distinguished, the Court of Appeals said:

“The last defense we shall consider is that predicated on an alleged violation of the provision that the policy shall be void ‘if with the knowledge of the insured foreclosure proceedings be commenced, or notice given of the sale of any property covered by this policy by virtue of any mortgage, or trust deed.’ The validity of such a stipulation was sustained by the Supreme Court in Springfield S. L. Co. v. Ins. Co., 151 Mo. 90, on the ground that the defendant might have been willing for the premium charged to insure mortgaged property, but not to continue the insurance if the risk were enhanced by proceedings to foreclose the mortgage, and that the parties had the right to contract against the assumption by the insurer of the greater risk. ’ ’

In the Springfield Laundry case the facts are stated by us thus:

“The facts agreed upon are substantially as follows: The property was owned by the Springfield Steam Laundry Company. The insurance was taken out by it, and by the terms of the policy the loss, in case of the destruction of the • "operty, was to be paid to the mortgagee as his interest might appear. After the loss the claim was assigned by the mortgagee to the plaintiff Heffernan. The mortgage by its terms was subject to foreclosure if the taxes on the mortgaged property were permitted to become delinquent. This condition of the mortgage was broken, and by reason of it the trustee advertised the property for sale as provided by the terms of the mortgage. The sale was enjoined. Subsequently the taxes were paid and the injunction proceedings dismissed. A short time thereafter the fire occurred. The policy contained this provision, to-wit: ‘If the property be sold, transferred, or is or becomes incumbered by mortgage or trust deed, or by judgment, tax or. mecha.lies’ lien, or upon the commencement of proceedings for its foreclosure or sale, or levy thereon by a law officer, or upon its passing into the hands of a receiver or trustee, or if this policy be assigned before a loss, then, and in every such case, this policy shall, without the written consent of this company thereto be indorsed hereon, become absolutely void.’ ”

Stating the precise point up for judgment therein, we said in the Springfield Laundry case this:

“The first question for consideration is as to whether or not the advertisement of the property for sale under the deed of trust was the commencement of foreclosure proceedings within the meaning of the terms of the policy; if so, by one of its express provisions the policy became void and of no effect.”

Passing upon this point we said in that case: “While we are fully satisfied that the rule announced in that case (Ins. Co. v. Lewis, 30 Mich. 41) as we understand it, and which is applicable to this, that is, that the advertisement of the property for sale under the mortgage was a commencement of proceedings for its foreclosure, or sale of the mortgaged property within the 'meaning of the policy, was a breach of its conditions and rendered it invalid unless the breach was waived, yet when the facts that the amount of taxes due upon the property was so small as compared .with its value, that the sale was enjoined and the taxes paid, and the proceedings to sell finally abandoned, are considered, we should not be inclined to hold the policy forfeited,.because it would he most unreasonable and unjust to do so, if it were not for the fact that it was expressly provided in the policy that it should become absolutely void upon the commencement of proceedings for the foreclosure of the mortgage. The proceedings were commenced in consequence of the failure of the assured to pay the taxes on the property according to the terms of the agreement, and this court has no power in the absence of fraud or mistake to relieve plaintiff from the obligations of its contract. If parties will make such contracts they have no right to expect courts to disregard the law in construing them. Such provisions are not, however, infrequent.”

This ruling is in strict accord with the rule in practically all other jurisdictions. [Findlay v. Union Mutual Fire Ins. Co., 74 Vt. 211; Norris v. Hartford Fire Ins. Co., 55 S. C. 450, Schroeder v. Imperial Ins. Co., 132 Cal. 18; Horton v. Home Fire Ins. Co., 122 N. C. 498; Hanover Fire Ins. Co. v. Brown, 77 Md. 64; Titus v. Glens Falls Ins. Co., 81 N. Y. 410; Delaware Ins. Co. v. Greer, 120 Fed. 916; Hartford Ins. Co. v. Clayton, 17 Tex. Civ. App. 644; Gibson Electric Co. v. Ins. Co., 159 N. Y. 418; McKinney v. Western Assur. Co., 97 Ky. 474; Meadows v. Hawkeye Ins. Co., 62 Iowa, 387; McIntire v. Ins. Co., 102 Mass. 230; German Ins. Co. v. Russell, 65 Kan. 373; Girard Ins. Co. v. Hebard, 95 Pa. St. 45; Algase Co. v. Royal Exchange Assur. Co., 122 Pac. (Wash.) 986; Medley v. German Alliance Ins. Co., 47 S. E. (W. Va.) 101; Kelly Co. v. St. Paul Ins. Co., 56 Fla. 456; Woodward v. German-American Ins. Co., 128 Wis. 1.]

Some of the courts, arguendo we must assume, in upholding the validity of a clause like that here under review, discuss the reasons which move the insurer to insert such a clause in an insurance policy. [Titus v. Glens Falls Ins. Co., 81 N. Y. 410.] But actions to recover upon a contract of insurance in case of loss are ordinarily eases at law, and do not sound in equity, at any rate that was the kind of case now here engaging our attention; so absent some phase of equitable jurisdiction, it is clear that antecedent reasons for making a contract cannot aid us in construing such contract when it is clear and free from ambiguity.

The forfeitiire clause here in question is part of a solemn contract made between corporations, both of which are competent to make contracts;'there' is no phase of equitable jurisdiction involved or invoked. We are here merely to say what that clause means; not to write into it terms or conditions which it does not contain ; for we may assume, since the parties to this contract were sui juris, since they were not over reached, since neither fraud, nor mistake, nor misrepresentation had aught to do with the making of this contract in the terms in which it was made, that had it been intended to make the actual increase of the hazard assumed a part of the contract, and a condition precedent to the forfeiture, they would have said so. We seek in vain for any such reason in the language of the clause in question. It is undisputed that the property destroyed was being advertised for sale under a deed of trust when the fire occurred and that the remainder' of the property was so sold pursuant to such advertisement shortly after the fire. So the facts are undisputed; the clause under construction is clear and unambiguous. But the learned Court of Appeals considered that a quotation in the Springfield Laundry case by this court from the ease of Titus v. Glens Falls Ins. Co., supra, wherein the New York Court of Appeals arguendo suggested the probable reasons moving the insurer to write such forfeiture clause into a contract of insurance, was the adoption by this court of the argumentative matter in that quotation as the basis of the rule of law, instead of that which it was, to-wit, a mere reason for the making of the contract by the parties contracting.

We cannot so construe our ruling. For this court just prior to the adoption of the quotation from the Titus case, said: “If parties will make such contracts they have no right to expect courts to disregard the law in construing them. Such provisions are not, however, infrequent.” Illustrating this fact of frequency largely, the Titus case is cited and quoted from. This state of the .facts might well have misled our learned brethren of- the Court of Appeals in holding, as they did, that the enforcement of such a clause by courts depends wholly on the question whether the violation of it increases the hazard or decreases it; and so having found that under the facts presented the risk assumed was minimized rather than maximized, the forfeiture ought not to be enforced.

We do not think (aside from the several phases of equitable jurisdiction and of waiver and of construing a contract more strictly against the writer of it, and of the rule that a forfeiture is-abhorrent, none of which is involved herein by reason of the absence of doubt as to tbe facts and of the lack of ambiguity in the clause before us for construction) there is any warrant in law to construe a contract of insurance by any other rule than that used to construe other contracts made by persons competent to enter into them. If there be any difference it rests, or ought to rest, merely in the rule as to the quantum of the evidence which we will require to prove an allegation of waiver, or fraud, or misrepresentation, or mutual mistake, growing out of an insurance contract, and which is bottomed upon a consideration of the advantage, which for the most part the insurer has over the assured, in pitting technically trained mentalities against untrained minds. Nor do we think we'so held in the Springfield Laundry case, but on the contrary we therein emphasized the rule that in construing a contract of insurance made by persons competent to contract, this court must follow the law by which contracts are construed.

For failure to follow the rule laid down by us in the case of Springfield Steam Laundry Co. v. Traders' Ins. Co., 151 Mo. 90, the judgment of the Kansas City Court of Appeals, reversing the case of Terminal Ice & Power Co., appellant, v. American Fire Insurance Company, respondent, is quashed and for naught held, and the record therein remanded to that court for further proceedings not inconsistent with this opinion. Let this bé done.

All concur except Bond, J., who dissents.


author: REVELLE, J.

text:
    THE STATE ex rel. THOMAS B. HARVEY, Circuit Attorney, v. JEREMIAH SHEEHAN, Auditor of City of St. Louis.
    In Banc,
    December 21, 1916.
    1. CONSTITUTIONAL LAW: Presumption of Validity: Harmonizing. Tbe presumption must always be indulged that the Legislature did not intend to violate the Constitution, and the burden is on him who asserts an act is invalid or meaningless. Acts of the Legislature and provisions of the Constitution must be read together, and so harmonized as to give effect to both, when this can be reasonably and consistently done.
    2. —-: -: Counties May Mean City. The term “counties” found in the Act of 1913, which requires prosecuting or circuit attorneys of cities having five hundred thousand inhabitants to attend coroner’s inquests and declares that for such services they shall be paid ten dollars for each inquest, “to be paid as other costs by the respective counties,” should, in view of section 23 of article 9 of the Constitution and section 3508 and sub-division 19th of section 8057 of the Revised Statutes 1909, be construed as including the city of St. Louis, and when so construed the act is not meaningless.
    3. -: Class Legislation: Applicable Only to One City. The Act of 1913, Laws 1913, p. 110, requiring “prosecuting or circuit at- ' torneys of cities that now have or may hereafter hhve five hundred thousand inhabitants or more” to attend coroners’ inquests and make an investigation concerning the cause of death and declaring that for said services there shall be taxed as costs “in favor of said prosecuting or circuit attorney” a fee of ten dollars for each inquest, “to be paid as other costs by the respective - counties,” was not intended to apply to the city of St. Louis alone, but is applicable to all counties having a population of five hundred thous- and inhabitants or more and to all cities which by law sustains the same functional relation to the State as do counties, and’when so viewed, although its language is ambiguous, is not special or local.
    4. -: Increase of Salary. An act which enjoins on an officer new and additional duties and provides .merely a compensation therefor, is not violative of the provision of the Constitution prohibiting any increase in the pay of an officer during his term of office. The Act of 1913, Laws 1913, p. 110, requiring the circuit fttorney of the city of St. Louis to attend coroner’s inquest in cases of death occurring by violence and which may be the result of a felony, to make an investigation concerning the cause of the death, cause any witness he may desire to be brought before the coroner, and the coroner to permit him to assist in the interrogation of witnesses for the full development of the circumstances leading up to the death, all for the purpose of informing the circuit attorney concerning any possible criminal charge that may grow out of said death, and declaring that for said services there shall be taxed as costs a fee of ten dollars in favor of the- circuit attorney for each inquest, “to be paid as other costs,” is not invalid as increasing the pay of the circuit attorney who was in office at the time the act was passed, but as it enjoins on him new and additional duties he is entitled to be paid ten dollars for each inquest.
    Appeal from St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.
    Beversed (with directions).

      Thomas B. Harvey for appellant.
    (1) The city of St. Lonis is a political subdivision of the State and bears relations thereto as a county and performs all the functions of a county; and legislation imposing duties upon the counties of the State, includes the city of St. Louis. R. S. 1909, secs. 3508, 8057; State ex rel. v. Finn, 4 Mo. App. 347; Brown v. Marshall, 241 Mo. 707; St. Louis v. Dorr, 145 Mo. 466; State ex rel. v. Rebenack, 135 Mo. 340; Railroad v. Gildersleeve, 165 Mo. App. 379. (2) Each county of the State, including the county of the city of St. Louis, has a public prosecutor who is designated either as prosecuting attorney or as circuit attorney and all have jurisdiction of felonies and the same general duties and powers; and the act devolving duties upon circuit and prosecuting attorneys in their respective counties, designates the circuit attorney to perform those duties in the city of St. Louis, although in said city is another official whose title is “Prosecuting Attorney of the St. Louis Court of Criminal Correction,” but whose sole duty is the prosecuting of misdemeanors in said court. Sec. 975 et seq., R. S. 1909; State v. Speritus, 191 Mo. 38; State ex rel. v. Williams, 221 Mo. 261; Laws 1865, p. 77. (3) An act of the Legislature imposing upon an officer additional duties not within the sphere of his office and providing additional compensation for the discharge of said new duties, and though passed during his term of office, applies to said officer and is not within the inhibition of section 8 of article 14 of the Constitution forbidding the increase -of compensation or fees of an officer during his term. Cunningham v. Railroad, 165 Mo. 270; State ex rel. v. Walker, 97 Mo. 162; 29 Cyc. 1429; County of San Luis Obispo v. Felts, 104 Cal. 60; State v. County Commrs., 23 Mont. 250; Lewis v. State ex rel., 21 Ohio Cir. Ct., 647; State ex rel. v. Carson, 6 Wash. 250; Purnell v. Mann, 105 Ky. 87; James v. Duffy, 140 Ky. 604; Love v. Baehr, 47 Cal. 364; State ex rel. v. Ransom, 73 Mo. 89; State ex rel. v. McGovney, 92 Mo. 428. (4) Statutes are not interpreted according to the letter, but according to the intent and meaning, which is .to be determined from the context and the evident purpose of the legislation; and in ■ order to effect such intent and not strike down a statute, words may be eliminated and others substituted. And where the word “city” is improvidently used instead of “county,” the latter may be substituted for the former. Black on Interpretation of Laws, pp. 162, 243; Frazier v. Gibson, 7 Mo. 271; St. Louis v. Dorr, 145 Mo. 495; St. Louis v. Christian Brothers College, 257 Mo. 541; In re Byan’s Estate, 174 Mo. App. 202; Butter v. Carothers, 223 Mo. 641; State v. Moody, 202 Mo. 120; People ex rel. v. Gaulter, 149 111. 47; State ex rel. v. Bailroad C’omm., 137 Wis. 85; Power Co. v. State Board, 94 Ark. 422; Stackhouse v. County Board, 86 S. C. 422; B. S. 1909, sec. 8057; Lancaster v. Frey, 132 Pa. St. 593; State ex rel. v. Phelps, 144 Wis. 1; Clare v. State, 68 Ind. 17; Covey v. Mayor, 149 Pac. (Kan.) 689; State v. Badford, 82 Kan. 853.

      William E. Baird and Truman P. Young for respondent.
    (1) The Act of March 25, 1913, is void, (a) It is void for ambiguity, (b) If said act is to be construed to apply to the city of’ St. Louis, it is void as being local legislation in violation of the Constitution. Sec. 53, art. 4'; pars. 2, 15 and 32, Constitution; State ex rel. v. Boach, 167 S. W. 1008; Bridges v. Mining Co., 252 Mo. 53; Hayes v. Mining Co. 227 Mo. 300; Strte ex rel. v. Turner, 210 Mo. 97. (2) The Act of March 25, 1913, could not take effect during the term of office of the relator. Constitution, sec. 26, art. 14. (3) The increase of the fees of a public officer during his term of office cannot be justified on the ground that they are given as compensation for extra services, if such services are germane to the .duties of the office. Dillon on Municipal Corporations (5 Ed.), sec. 426; Mechem on Public Offices,' sec. 862; Lewis v. State ex rel., 21 Ohio Cir. Gt. 410; White v. East Saginaw, 43 Mich. 567; State ex rel. v. Eaine, 49 Ohio St. 580; Bright v. Stone, 43 S. W. 207; Folk v. St. Louis, 250 Mo. 116. (4) The above constitutional provision should be distinguished from other similar provisions forbidding an increase of compensation, but saying nothing about fees. The word “compensation,” when used alone in such constitutional provisions, has been held to refer to salary only. Milwaukee v. Haekett, 21 Wis. 620; Houser v. Seeley, 18 S. D. 318; State ex rel. v. Grimes, 7 Wash. 445; State ex rel. v. Johnson, 123 Mo. 43; State ex rel. v. Smith, 87 Mo. 157; Callaway County v. Henderson, 119 Mo. 32; Givens v. County, 107 Mo. 603; Cunningham v. Railroad, 165 Mo: 277. Therefore, the present provision has explicitly stipulated against an increase of either compensation or fees.
   REVELLE, J.

This proceeding by mandamus originated in the circuit court of the city of St. Louis and seeks process against the city auditor to compel him to audit a certain certified itemized account for services rendered by relator for attending coroners’ inquests, and to issue a warrant for the payment of said account.

The petition recites that appellant has since the first day of January, 1913, been circuit attorney of the city of' St. Louis; that the city of St. Louis has more than 500,000 inhabitants; that the forty-seventh General Assembly of the State of Missouri enacted a law requiring the circuit attorneys of such cities to attend inquests held by coroners in cases of death caused by violence which might result in charges of felony, and provided further that said circuit attorneys should receive for such services the sum of ten dollars for each inquest so attended and that such fee should be paid as “other costs” by the city; that said act was passed with an emergency clause and was in full force and effect during all the time for which appellant makes charges, which charges cover and include services performed in the pursuance of said act in connection with forty-four inquests over bodies of the nature described in said act; that a duly itemized and certified account for such services was certified to the city auditor for payment; that it then and there became the duty of such auditor to audit said account and to issue proper warrants in payment thereof; that there was at the time, and is now, sufficient money in the treasury of the city of St. Louis, appropriated and set apart for the maintenance of the office of the circuit attorney, to pay the amount of said claim, and that the same cannot under the law be paid until it is first audited by the said auditor; and, that the respondent has arbitrarily and unlawfully refused to audit said account or. any part thereof.

The return admits that appellant is the circuit attorney as alleged and that the respondent is the duly qualified and acting auditor of the city of St. Louis.; that the city has more than 500,000 inhabitants and that the law referred to in the petition was duly enacted with an emergency clause. The return alleges, however, that said act does not provide that the fee therein mentioned shall be paid by the city of .St. Louis .and that the said city is not liable to appellant for the fees demanded. The return further alleges that if said act be interpreted as requiring the city to pay such fee it could not apply to appellant because at the time of its passage he was holding office and could not claim the benefits thereof because of section 8, article 14, of the State Constitution. Upon the filing of this return appellant filed a motion to strike out same and have judgment bn the pleadings. His motion being overruled, he refused to further plead and judgment was entered for respondent.

The first question presented is the construction and validity of the act of the Legislature (Laws 1913, p. 110), which is as follows:

“That the prosecuting or circuit attorney of cities that now have or may hereafter have 500,000 inhabitants or more is hereby required to attend inquests held by coroners in cases of death occurring by violence, and which may result in a charge of felony; and said prosecuting or circuit attorney shall make an investigation concerning said death and cause to be brought before the coroner any witnesses he may desire, and shall be permitted by the coroner to assist in the interrogation of witnesses for the .full development of the circumstances leading up to and resulting in said death, and for his information concerning any possible criminal charge that may grow out of the same, and for the aforesaid services there shall be taxed as costs a fee in favor of said prosecuting or circuit attorney of ten dollars for each aforesaid inquest, to be paid as other costs by the respective counties. It shall be the duty of each coroner to promptly notify the prosecuting attorney of his county or city of the time and place of inquisition concerning any death of the aforesaid character.”

Respondent contends that the act quoted is void because meaningless and uncertain as to the things to which applicable and because local and special, if so construed as to make the word “counties,” found in the latter provision of the act, include the city of St. Louis. The act is not skillfully drawn and might, in the absence of recognized rules of construction, be so interpreted as to subject it to the charges made, but, in dealing with subjects of this character we áre constantly reminded by both our own holdings and certain principles uniformly accepted as sound, that it is our duty to resolve all doubts in favor of the validity of a legislative act, we always being reluctant to declare statutes unconstitutional. We indulge the presumption that the Legislature did not intend to violate the organic law of the State and we place the burden upon him who asserts the contrary to so convince us. Acts of' the Legislature and provisions of the Constitution must be read together and so' harmonized as to give effect to both when this can be reasonably and consistently done. [Straughan v. Meyers, 268 Mo. 580.] We have frequently .said that doubtful words of a statute will be enlarged, restricted, supplied, or even stricken out in order to make them conform to the true intent of the lawmakers, when such intent is manifested by the aid of sound principles of interpretation. [State ex rel. Aull v. Field, 112 Mo. 554; Glaser v. Rothschild, 221 Mo. l. c. 211; Bingham v. Birmingham, 103 Mo. 345; State ex rel. v. King, 44 Mo. 283; Perry v. Strawbridge, 209 Mo. l. c. 645.]

We have no doubt that under the 19th sub-division of section 8057, Revised Statutes 1909, and section 3508, Revised Statutes 1909, and section 23, article 9, of the Constitution, the term “counties” found in connection with the provision of the act under review and which prescribes liability for the fee mentioned, should he construed as including the city of St. Louis. With such construction, the complaint that the act is meaningless becomes of no avail, as was held in the divisional opinion, and with which on that point we agree. The question then becomes whether the act is special and local and therefore violative of paragraphs 2,15 and 32 of section 53, article 4, and section 8, article 14, of the State Constitution.

A careful consideration of the act in question, giving effect to both its letter and apparent spirit, leads us- to believe that it was not intended to apply solely to the city of St. Louis. It expressly provides in its latter provisions for the payment of the prescribed fees by cownties which have a prosecuting or circuit' attorney, and by its first provision is limited to sub-divisions which have a population of 500,000 or more inhabitants.

We take judicial notice of the fact that the city of St. Louis is the only city or county (and for these purposes it is regarded as a county) that has a circuit attorney, the counties having what is styled a “prosecuting attorney.” The circuit attorney in the city of St. Louis performs the same functions as prosecuting attorneys in the counties, saving and excepting in particular respects for which other provision is made. For general purposes he is to the city of St. Louis what the prosecuting attorney is to a county.

Unless we disregard canons of construction we must hold the act in question to be merely ambiguous and then so construe same as to make it applicable to all counties which have a population of 500,000 or more inhabitants and all cities which by law are permitted Or required to perform the same functions in relation to the State as are counties. Giving the act in question this construction, it obviates all charges of offensiveness to the Constitution, and but gives effect to the apparent intention of the Legislature.

Another contention made is that since the appellant was an officer, at the tiine of the passage of the act, it is inapplicable to him because the Constitution prohibits any increase in the pay of an officer during his term of office. "We think this contention unsound because the act in question enjoins upon such officers as appellant new and additional duties and provides merely a compensation therefor. While in some jurisdictions a constitutional provision such as ours has been held to inhibit even this, in this and many other states the contrary doctrine has been accepted and acted upon. [Cunningham v. Current River Railroad Co., 165 Mo. 270; State ex rel. v. Walker, 97 Mo. 162; State ex rel. v. Ranson, 73 Mo. 89; State ex rel. v. McGovney, 92 Mo. 428; County v. Pelts, 104 Cal. 60; State ex rel. v. Board of Commissioners, 23 Mont. 250; State ex rel. v. Carson, 6 Wash. 250; Love, Attorney-General v. Baehr, Treasurer, 47 Cal. 364; Purnell v. Mann, 105 Ky. 87; Lewis v. State ex rel., 21 Ohio C. C. 410.]

It is our opinion that the act is valid and that the appellant is entitled to the fees demanded and that the respondent was not justified in refusing to audit the account and draw a warrant therefor on the city treasury.

The judgment is therefore reversed with directions that the writ of mandamus prayed for by relator be made peremptory.

All concur except Walker and Paris, JJ., who- dissent.


author: WOODSON, J.

text:
    CITY OF ST. LOUIS, Appellant, v. WILLIAM R. MOORE et al.
    In Banc,
    December 21, 1916.
    CONDEMNATION: School Property for Street Purposes: Public Policy. The power of a city to condemn property for street purposes is limited to the condemnation of private property, and does not extend to property of the State held for the State by a school district or other subordinate agency of the State, as distinguished from other corporations; and if public policy demands a different rule, the remedy is with the General Assembly, and not with courts.
    Appeal from St. Louis City Circuit Court.- — Hon. George G. Hitchcock, Judge.
    Affirmed.

      Charles H. Danes, Truman P. Young^ and George William Sewn for appellant.

      Robert Burkham for respondents.
   WOODSON, J.

This is a proceeding instituted in the circuit court of the city of St. Louis, under authority of Ordinance No. 27024, in condemnation for the establishment and opening of Slattery Street from Montgomery Street to St. Louis Avenue.

The facts are these: As will appear from plaintiff’s “Exhibit A” (which accompanies this statement, p. 433), the physical block, bearing, however, separate city block numbers for the eastern and western portions, is somewhat irregular, bounded on the north by St. Louis Avenue (100 feet wide), on the south by Montgomery Street, east by Glasgow Avenue, and west by Garrison Avenue, respectively, each 60 feet wide; Slattery Street (60 feet wide) was laid out in 1885 northwardly from Montgomery Street, approximately half way through the block. In 1894 the board of education of the city of St. Louis acquired in the block the site having a front of 169 feet and 8% inches (less 7 feet and 6 inches, the one-half of a private alley), by a depth eastwardly of 185 feet and 6 inches on its south line. In the years 1895 to 1897 the Columbia School was erected on this site.

Until June, 1905, the property immediately east of the school site, and having a front on St. Louis Avenue, was owned by William F. Hull et al.; on the western portion of the Hull property (appearing on the exhibit in the name of Board of Education of the city of St. Louis) was the Hull residence, and on the eastern portion of the Hull property (on the two lots appearing on the exhibit in the names, respectively, of William R. Moore and Christian Bockelbrink) were two residences, both fronting west, the front walls of such residences being 55 feet east of the present east line of the Board of Education lot (said east line being the center of Slattery Street as proposed by the aforesaid ordinance).

In June, 1905, the board of education acquired the lot of 94 feet and 11 inches front on St. Louis Avenue, by a depth southwardly of 296 feet and 4% inches on its west line, by deed from said William F. Hull et al., in which the description of the property conveyed contains the following:

... thence eastwardly along the north line of said Lewis’ Subdivision to a point where the center line of Slattery Street, as laid out between blocks 1905 and 1896 of the city of St. Louis, intersects the same; thence northwardly, parallel with the east line of said property of the board of education of the city of St. Louis, and P. C. Cozzens, and along the center line of proposed Slattery Street to a point in the south line of St. Louis Avenue . . .”

Before the Hull conveyance, and in, to-wit, 1902, the board of education had acquired a triangular parcel, abutting its first site and the Hull tract on the south thereof, having an area of about 2500 square feet.

In January, 1906, William F.» Hull et al. conveyed to William R. Moore the lot, appearing on the exhibit in that name, and abutting on the east of the property previously conveyed to the board of education of the City of 'St. Louis, by deed iu which is contained the following language:

“ ... The western 30 feet of this property herein conveyed is at all times to remain open for street purposes with easement, for free ingress and egress for the property lying north and adjacent to the property herein described and owned by Leon L. Hull et al.”

In September, 1910, William P. Hull et al. conveyed to Christian Boekelbrink the lot, appearing’ on the exhibit in that name, and abutting on the east of the property previously conveyed to the board of education, by deed, in which is contained the following language:

“The western 30 feet of the southern 79 feet and 7!/4 inches herein conveyed, also the 4 feet fronting on St. Louis Avenue, by a depth of 135 feet is at all times to remain open for street and sidewalk purposes with easements for free ingress and egress for the property lying on the south, north and adjacent to the property herein described.”

By ordinance of the city of St. Louis, No. 27024, Slattery Street from Montgomery Street to St.- Louis Avenue was established 60 feet wide, the center line thereof to run as .follows, to-wit: Prom Montgomery Street northwardly to the northern line of “Lewis’ Subdivision,” the said line to be coincident with the center line of Slattery Street as now laid out; from the northern line of said subdivision to St. Louis Avenue, the said line to be coincident with the eastern line of property now or formerly owned by the board of education of the city of St. Louis, said property line being located about '280 feet eastwardly of the eastern line of Garrison Avenue, measured along the southern line of St. Louis Avenue.

The original site of the board of education (excluding the private alley area) approximated 30,000 square feet, of which 12,000 square feet were occupied by the school building, leaving approximately 18,000 square feet of adjacent play ground. This condition continued from the time of establishment of the school down to the time of the purchase of the triangular parcel of 2500 square feet in 1902. In 1905 the area added to the school site hy the purchase of. the Hull property was approximately 28,000 square feet, thus increasing the

area of the school site (outside of the part thereof occupied by the building) to approximately 48,500 square feet; the area of the eastern 30 feet of the present school site included in the proposed Slattery Street as established by said ordinance, approximates 8800 square feet, deducting which .from the previous figures would leave a free area in the school site of approximately 39,700 square feet. The area of the Weisz property, having 85 feet front on St. Louis Avenue and lying in the elbow of the school site, approximately 11,475 square feet, of which the eastern part and area (55-foot street front) of 7425 square feet is unimproved; the last-mentioned area is 84 per cent, of the area of the eastern 30 feet of the school site covered by the proposed street. The proposed street as established by said ordinance would make Slattery Street, now a cul de sac, a street through the block to St. Louis Avenue. Slattery Street exists, also, southwardly from Montgomery Street.

As appears from defendant’s Exhibit'No. 1, there are properties fronting on the cul de sac immediately south of the school property and of the property of William R. Moore. The question raised is whether the . city of St. Louis in the establishment and extension of a street is unqualifiedly prohibited from including in such proposed street any part of school lands.

The property which is sought to be condemned is the east half of the lot embraced within the heavy black lines shown on said Exhibit “A.”

The trial resulted in favor of the defendant, and the city duly appealed the cause to this court.

I. Counsel for appellant state their ground for a reversal of the judgment of the district court in this language :

“(a) Power to condemn for a second public use, property previously devoted to public use, must be expressly granted or proceed from necessary inference of such a grant;
, “(b) This rule proceeds, however, upon the assumption that the later intended public use would destroy or greatly impair the prior use and its object, and is subject to the qualification that when such later use presents a further need of the public and will not essentially interfere with the exercise of the prior use and the accomplishment of its objects, then the power to condemn such property for a second public use will be inferred from a general grant of the power of eminent domain.”

Upon the other hand, if I correctly understand counsel for appellant, they concede that if such taking would so damage the property as to destroy its usefulness for school purposes, then the city would have no power, in the absence of express statutory authority, to condemn the same for street purposes.

In support of their contention we are cited to the following authorities:

Hannibal v. Railroad, 49 Mo. 480, 481, 482; St. L., H. & K. C. Ry. Co. v. Depot Co., 125 Mo. 82, 91, 92, 94; Suburban Ry. Co. v. Lindell Ry. Co., 190 Mo. 246, 254; Pottsgrove Township Road, 5 Pa. County Court, 361; Rominger v. Simmons, 88 Ind. 453, 456, 457; B. & O. & Chi. R. R. Co. v. North, 103 Ind. 486, 495, 496; Steele v. Empsom, 142 Ind. 397, 405, 406; Easthampton v. County Comrs., 154 Mass. 424, 425, 426; Boston v. Brookline, 156 Mass. 172, 175, 177; In re City of Buffalo, 68 N. Y. 167, 175; L. & N. R. R. Co. v. Louisville, 131 Ky. 108, 115, 116; C. M. & St. P. Ry. Co. v. Starkweather, 97 Iowa, 159, 161, 162, 164, 165; Northwestern T. E. Co. v. C. M. & St. P. Ry. Co., 76 Minn. 334, 346 et seq.; Mobile & G. R. R. Co. v. Ala. M. Ry. Co., 87 Ala. 501; Mobile & G. R. R. Co. v. Ala. M. R. R. Co., 87 Ala. 520; State ex rel. v. Superior Court, 47 Wash., 166; Dillon on Municipal Corporations (5 Ed.), secs. Í020, 1022 (and note), 1023; Lewis on Eminent Domain, secs. 435, 436, 439, 440, 441.

These authorities sustain the general principle contended for by counsel, especially Rominger v. Simmons, 88 Ind. 453; Easthampton v. County Comrs., 154 Mass, 424; Boston v. Brookline, 156 Mass. 172, and In Matter of City of Buffalo, 68 N. Y. 167.

The foregoing contention of appellant is strenuously denied by counsel for the respondent. In his own language, he insists:

“The city of St. Louis has no power to condemn land owned by the board of education of the city of St. Louis actually in use for school purposes. This is true on principle, and regardless of the area of the property sought to be taken, for:
“(a) Property owned by an instrumentality of the State and devoted to a public use is not subject in any degree to the exercise of the right of condemnation for another and inconsistent purpose in the absence of express legislation so authorizing.
“(b) The doctrine of the law which sometimes, and by way of exception, permits a condemnation of property devoted to public use, but owned by a private corporation, has no application to such a case as this.”

A decision of the latter proposition is not necessary to reach a proper disposition of this casé, and for that reason we pass it by without further comment.

As regards the first. Can property devoted to a public use, that is more strictly speaking for State purposes, be condemned for other public use, exercised by a municipal corporation? In support of the negative of that question we are cited to the following authorities: Elliott, Roads and Streets, secs. 238, 245; St. L., H. & K. C. Ry. Co. v. Hannibal Depot Co., 125 Mo. 82; Edwardsville v. Madison County, 251 Ill. 265, 37 L. R. A. (N. S.)101; Moline v. Green, 252 Ill. 475; Matter of Utica, 73 Hun (N. Y.), 256; In re Rosebank Ave., 162 App. Div. (N. Y.) 332; McCullough v. Board of Education, 51 Cal. 418; In re Milwaukee Southern R. R., 124 Wis. 490. Those authorities in effect hold that the power of a city to condemn property for street purposes is limited to private property, and does not extend to property of the State or property held by a subordinate agency of the State, for the State, as distinguished from other corporations.

In our opinion these authorities announce the correct doctrine; and if public policy demands a different rule, the remedy is with the Legislature and not the courts.

We are, therefore, of the opinion that the judgment should be affirmed. It is so ordered.

All concur, Revelle, J., in result, except Bond, J., who dissents.