text:
    THE STATE v. THOMAS HARRIS, Appellant.
    Division Two,
    February 7, 1911.
    1. INSTRUCTION: Not Covering Proposition: No Request. When the court, either of its own motion, or on request from the State, instructs upon a question of law, such instruction must fully cover the proposition; and where the court under- . tafees to instruct upon a question, the defendant, without request upon his part, is entitled to as full and complete an instruction as he could properly claim had he requested it. [Overruling State v. Sublett, 191 Mo. 163, on this point.]
    2. -: -: -: Flight. A crowd had been drawn together by the beating of a negro driver of an express wagon, and in the midst of the excitement deceased was 'shot, and eight eye-witnesses testified that defendant did the shooting and others that he did not. Defendant went to two towns in another State, and after two weeks returned and surrendered himself. His -evidence was to the effect that he fled because he had good reason to fear mob .violence, which there is evidence to show had been incited against him on account of the killing, and because he had business in the first town to which he went and was there advised it would be unsafe for him to return at the time. Held, first, that since the court undertook to give an instruction on the subject of flight, it should have been made .to cover this phase of the evidence explanatory of his flight, whether defendant requested a full and proper instruction or not; and, second, an instruction telling the jury that “flight of the defendant is a circumstance to be taken into consideration in connection with all other facts and circumstances in evidence, and if the jury find and believe from the evidence that the defendant, after the commission of the homicide alleged in the information, fled from his usual place of abode for the purpose of avoiding arrest and trial for said offense, they may take this fact into consideration .in determining his guilt or innocence,” would be correct and full enough if there were no evidence explaining defendant’s flight, but as applicable to the facts in this case, it is incomplete, in that it does not give the defendant; the benefit of the evidence explaining his flight and his reasons for fleeing, and is therefore reversible error.
    Appeal from Jackson Criminal Court. — Hew. E. E. Porterfield) Judge.
    Reversed and remanded.

      Moore & Handy and H. 8. Kimbrell for appellant.
    (1) The court erred in giving instruction 6 on behalf of the State. This instruction did not give the defendant the benefit of his explanation or his reasons for leaving the State, his statement being that he left because he was in fear of a mob, that he intended to return as soon as quiet had been established, and that he did return. The following cases hold that the court should instruct the jury as to all explanatory reasons for flight and that it is error not to do so: State v. Mallon, 75 Mo. 357; State v. King, 78 Mo. 557; State v. Brookes, 95 Mo. 556; State v. Walker, 98 Mo. 108; State v. Potter, 108 Mo. 424; State v. Fairlamb, 121 Mo. 137; State v. Hopper, 142 Mo. 478. (2) The court erred in failing to instruct the jury on all the law governing the case. State v. Kennedy, 177 Mo. 132; R. S. 1909, sec. 5231.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant- Attorney-General, for the State.
    Instruction 6 is an instruction upon flight. The State’s evidence tended to show that the appellant fled to Kansas and remained away from the place of the homicide, and away from his home, for about two weeks. There was, therefore, ample evidence upon which to bottom this instruction. There can he no complaint as to the form of the instruction. State v. Soper, 207 Mo. 502. The appellant did not request the court to instruct upon all the law of the case. State v. McCarver, 194 Mo. 717; State v. Bond, 191 Mo. 555; State v. Espenschied, 212 Mo. 223; State v. West, 202 Mo. 137.
   FERRISS, J.

The defendant was convicted in the criminal court of Jackson county of murder in the first degree, and received a life sentence in the penitentiary. He appeals to this court to reverse the judgment because of alleged error committed by the- trial court in instructing the jury on the question of flight.

The facts material to a proper consideration of the question raised are as follows:

On the 5th day of September, 1908, at 9:30 p. m., one Frank Smith was- shot to death on Eighteenth street, Kansas City. The deceased had joined a crowd which had gathered on the scene of an affray which involved the serious heating of a negro hoy, driver of an express wagon. In the midst of the excitement, the deceased, who had no part in the affray, was shotv Eyewitnesses for the State testified that defendant did the shooting. Eye-witnesses for the defense, including the defendant, testified that defendant did not shoot the deceased.

Shortly after the shooting the defendant went to Argentine, Kansas, from thence to Junction City, Kansas, and in about two weeks returned to Kansas City, and gave himself up to the authorities. Defendant introduced evidence to the effect that he fled because he had good reason to fear mob violence, which, there is evidence to show, had been incited against him on account of this killing; also that he had business in Argentine, and was advised there that it would be unsafe to return at that time.

If the testimony for defendant is believed, an explanation-of the flight, consistent with innocence, is given. If this evidence is not believed, the flight stands unexplained. On this point the court gave the following instruction:

“Flight of the defendant is a circumstance to be taken into consideration in connection with all the other facts and circumstánces in evidence, and if the jury find and believe from the evidence that the defendant, after the commission of the homicide alleged in the information, fled from his usual place of abode for the purpose of avoiding arrest and trial for said offense, they may take this fact into consideration in determining his guilt or innocence. ’ ’

The defendant contends that this instruction is erroneous because it fails to “give the defendant the benefit of his explanation or his reasons for leaving the State.-”

The State contends, 1st, that the instruction is proper; 2d, that the defendant is precluded from now objecting that the instruction is improper.and incomplete, by reason of the fact that he did not ask any instruction on this point.

"We have, then, two propositions presented.

First: Can the defendant complain in this court of the above instruction, which he concedes is correct as far as it goes, he having failed to ask a further instruction in the court below?

Second: If this question shall be answered in the affirmative, is there reversible error in the instruction as given?

As to the first proposition: The statute imposes upon the trial court the duty, “whether requested or not,” to “instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict. ’ ’ [R. S. 1909, sec. 5231.]

Numerous decisions of this court hold that, in the absence of a request from the defendant, it is not reversible error to fail to instruct on collateral questions. Whether the question of flight is collateral we are not called upon to decide in this case. The defendant rests his contention upon the proposition that when the court, either of its own motion, or on request from the State, instructs upon a question of law, such instruction must fully cover the proposition; and that inasmuch as the court in this case undertook to instruct upon the question of flight, the defendant, without request upon his part, is entitled to as full and complete an instruction as he could properly have claimed had he requested it.

We think this proposition is sound. If an instruction offered by the defendant is refused because defective in form or phraseology, it then becomes the duty of the court to give a proper instruction covering the point. [State v. Kilgore, 70 Mo. 546; State v. Reed, 154 Mo. 129.] If the defendant requests it, clearly the court must instruct in a proper case, and must fully cover the point.

On principle, whenever the court in a criminal case undertakes to instruct on a question of law for the guidance of the jury “in giving their verdict,” the instruction should guide them fairly, should present both sides of a proposition if it has two sides, and this is so whether the attention of the court is drawn to the matter by a request from either the State or the defendant, or whether the court proceeds upon the matter, of its own motion. [State v. Branstetter, 6.5 Mo. 149.] We have not overlooked the dictum in State v. Sublett, 191 Mo. 163. In that case, as here, it was contended that the instruction failed to give the defendant the benefit .of his explanations. The court said: “In answer to this contention it may be said there was no evidence adduced by defendant upon which to base his contention.”

This was a complete answer, and nothing further was necessary; but the court proceeded to say: “Nor even if there had been, would the instruction be erroneous though it did not embody it, because the defendant had the right to ask an instruction upon the, question of his own motion, and that he did not do so was his own fault.” With this last statement, which was beyond the decision of the case, we do not agree.

Proceeding now to the question-whether the instruction as given was erroneous because it failed to guide the attention of the jury to the defendant’s side of the proposition, we are of the opinion that the instruction is erroneous because of such failure.

Upon the evidence in this case it became a matter of prime importance to guide the jury correctly on this question of flight. The evidence upon the question whether defendant fired the fatal shot was in serious conflict. There was a crowd of excited people. The State’s witnesses said the defendant had long moustaches. The defendant said he had worn no moustache for a year. It was so dark that witnesses could not give the color of his clothing. Defendant was a reputable negro, a builder and contractor who had lived many years in Kansas City, and who had, as stated in the brief for the State, “accumulated some little property worthy of note, especially for a black man.” He owned buildings and had tenants. He was a stranger to deceased. No possible motive is shown unless, as suggested by the brief of the Attorney-General, he desired to avenge a brutal attack on one of his race.

In view of the conflict in the evidence on the question of identity, the subsequent actions of the defendant were entitled to, and doubtless received from the jury, serious consideration. The testimony adduced by defendant supports his claim that his flight was consistent with innocence. [State v. Sublett, supra.] Upon principle fully supported by the rulings of this court the defendant was entitled to an instruction presenting his theory of the flight.

In the case of State v. King, 78 Mo. 555, this court, speaking of an instruction which ignored explanatory circumstances, said: “Where the testimony discloses circumstances explaining or excusing flight, which consist with the innocence of the defendant of the crime charged, the jury should be directed to consider the same in connection with the presumption arising from flight, and determine how far they tend to rebut such presumption. [State v. Mallon, 75 Mo. 355; Wharton, Crim. Ev., sec. 750.] There were facts in this case explaining the defendant’s flight to which the attention of the jury might have very properly been called, leaving the weight to be attached to the same, of course, to the jury.” The instruction in that case was condemned, as we construe the decision, because it failed to take into consideration the explanatory evidence.

In the case of State v. Walker, 98 Mo. 95, l. c. 108, the court instructed the jury that “flight raises a presumption of guilt, and if after Green was killed defendant fled . . . ‘for the purpose of avoiding arrest, trial or conviction for the killing of Green, then you will consider his flight in connection with the other evidence in arriving at your verdict. ’ ’ ’ This instruction is substantially like the one under consideration. It was sustained because there was no explanatory evideuce, but Judge Black, speaking for the court, says: “Where there is evidence explaining the flight and tending to show that it was not from a consciousness of guilt, further instructions should be given. [State v. King, 78 Mo. 555.] , If the jury should find that the defendant did not leave the country for the purpose of avoiding arrest or trial, then the leaving raises no presumption of guilt, and the jury should be so directed. But we conclude there was no error in failing to give such further instruction in this case, because there is no evidence tending to explain the flight. ’ ’

In State v. Fairlamb, 121 Mo. 137, l. c. 147, the court instructed the jury that if they believed from the evidence that the defendant fled to avoid arrest, it raised a presumption of his guilt. There was evidence which tended to explain the flight favorable to the defendant, and the court comments upon the instruction as follows: “Under the facts as disclosed, the instruction should have directed the jury, in passing upon defendant’s purpose in leaving the place of the homicide, whether or not to avoid arrest, to take into consideration the fact that he made no effort at concealment and the sending for the officers to come and arrest him. It is not every going away from the place of the homicide that raises the presumption of the guilt of the accused, and when the facts tend to show that the purpose of going away was not to avoid arrest, the instruction should be so framed as to include all the circumstances, that the defendant may have the benefit of such explanatory facts. [State v. Mallon, 75 Mo. 355; State v. King, 78 Mo. 555; State v. Ma Foo, 110 Mo. 7.]”

It follows from the foregoing' that for error in not making the instruction on flight broad enough to include defendant’s explanation, the case must be reversed and remanded, and it is so ordered.

Kennish, P. J., and Brown, J., concur.


source: Caselaw Access Project

author: GRAVES, J. GRAVES, J.

license: Public Domain

text:
    CITY OF ST. LOUIS, Appellant, v. HERMAN RUECKING, FREDERICK EISTRUP and CITY TRUST, SAFE DEPOSIT & SURETY COMPANY OF PHILADELPHIA.
    In Banc,
    February 9, 1911.
    1. SEWER CONTRACT: Substantial Performance: Suit on Bond. In a suit by the city.on the bond of contractors who constructed a public sewer, alleging a failure to comply with the terms of the contract in the construction of the work, which was accepted and paid for by the city, a showing of a substantial compliance with the contract i's a complete defense. The law does not require a literal compliance with its terms, but only substantial performance.
    2. -: -: Assumed in Instruction: Suit on Bond. Where the sewer contract provided that the sides of the excavation should be filled with sand, well rammed, and the evidence showed the ditch was wet and fine earth was better than sand, the court 'should not instruct the jury that the use of earth was not a substantial compliance with the contract, especially where the city officials inspected the work each day, knew that earth was being used, and no collusion or fraud is charged. It was for the jury to say whether the change from sand to earth was a substantial compliance.
    3. -: -: Suit on Bond: Damages for Defective Pipes: Instructions. Where the action is one by the city on the sewer contractor’s bond to recover as damages the costs of replacing a part of the tiles, which were found after the work was accepted, to be broken, with new ones, instructions telling the jury that the substitution of material other. than that called for by the contract would not alone authorize a verdict for the city, and that neither the city officers nor the contractors had any right to substitute other material except _in substantial compliance with the contract, are correct.
    4. --: Trust Fund to Keep In Repair: Not Pleaded. Where neither the clause of the contract creating a special fund for repairs for reconstruction by the contractor, on the order of the sewer commissioner, nor the ordinance authorizing said clause, is pleaded or relied upon in the petition, it will not be held that the city’s suit to recover from the contractor and his bondsmen the costs of reconstructing defective work, was based upon either said clause or ordinance.

      5. -: Suit on Bond: After Acceptance: For Defective Work: Estoppel. Where the contract provided that the sewer “contractor will be required to correct all imperfect work when discovered before final acceptance of the work,” and the evidence and ordinances show that the city retained and maintained a constant and thorough supervision of the work as it progressed, and no fraud or collusion is charged, the city is estopped, after having accepted the work and issued the special tax bills in payment of the same, to sue the contractor on his bond for the damages resulting from defects in the work thereafter discovered.
    6. -: Change in Material: Estoppel After Acceptance. Even though the changes in the materials to be used in the work were beyond the purview of the powers of the city’s agents, yet as their unauthorized act was along the line of a business fully authorized by law and statute, the acceptance of' the work by the city thereafter, with knowledge of the changes in the materials made, is binding upon the city, and thereafter the city cannot recover damages because of such changes.
    ' Appeal from St. Louis City Circuit Court. — Eon. Robert M. Foster, Judge.
    Affirmed.

      Lambert E. Walther, Benjamin E. Charles and William E. Baird for appellant.
    (1) The doctrine of ‘‘substantial performance” as applied to building and construction contracts applies only where there has been an honest attempt to comply with the contract, where the deviations from its terms, are slight and do not run through the entire work. St. Joseph v. Anthony, 30 Mo. 537; Woodward v. Fuller, 105 Mo. 303.; Kansas City v. Swope, 79- Mo. 446; Kiley v. Oppenheimer, 55 Mo. 374; Elliott v. Caldwell, 43 Minn. 359; GHacius v. Black, 67 N. T. 563; Foeller v. Heintz, 118 N. W. 543. (2) This doctrine as applied in this State to contracts for public work is anomalous; and even here it is applied to such contracts only where (a) some preliminary step which was merely directory has been omitted or (b) in actions upon taxbills, in which case the property owner may reduce the recovery by showing the failure to strictly perform the contract. Dillon, Mun. Corp., sec. 812; Risley v. St. Louis, 34 Mo. 404; Neenan v. Smith, 60 Mo. 292; Gibson v. Owens, 115 Mo. 269; Springfield v. Weaver, 137 Mo. 669; Porter v. Construction Co., 214 Mo. 1. (3) The administrative officers of the city had no power to accept material or work different from that specified, .and the contractor was charged with knowledge of this limitation upon their power. McGrath v. St. Louis, 215 Mo. 207; Leathers v. Springfield, 65 Mo. 504; Cheeney v. Brookfield, 60 Mo. 54; Campbell v. St. Louis, 71 Mo. 106; McQuiddy v. Braddock, 70 Mo. App. 535; Brick Co. v. Hamilton, 51 Mo. App. 120; Campau v. Detroit, 106 Mich. 414; Electric Co. v. Boston, 163 Mass. 64; Dillon, Mun. Corp., sec. 447. (4) “To hold that these municipal contracts, which are so carefully provided for in the charter, can be changed by any officer or'subordinate would destroy the principle of competitive bidding, which is a prime feature of the charter. ’ ’ Mc-Grath v. St. Louis, 215 Mo. 207; R. S. 1899', sec. 6759; St. Louis Charter, art. 6, sec. 27, and art. 16, sec. 7 (Ri. S. 1899', pp. 2514 and 2531) .

      Rassieur & Feuerbacher and Kortjohn & Kortjohn for respondents.
    (1) Under the contract read in evidence, the appellant, by the acceptance of the sewer and the issuance of the special taxbills, estopped itself from instituting this action. Water and Light Co. v. Lamar, 140 Mo. 145; Water Co. v. Aurora, 129 Mo. 540; Graff v. Foster, 67 Mo. 520. (2) While the last-named case involved the sale of personal property, yet under circumstances such as exist in this case, the same rule applies to improvements on real estate. Grimm v. Gamache, 25 Mo. 46; Stewart v. Fulton, 31 Mo. 61. (3) The doctrine of substantial performance was properly applied by the court in the trial, and in the giving of instructions. St. Joseph v. Anthony, 30 Mo. 537; Cole v. Skrainka, 105 Mo. 303; Steffen v. Fox, 124 Mo. 630 ; Johnson v. Duer, 115 Mo. 366; Paving Co. v. Ullman, 137 Mo. 570;' Whitworth v. Webb City, 204 Mo. 570; Porter v. Paving Co., 214 Mo. 1.
   GRAVES, J.

The city of St. Louis brought this action upon the bond of defendants, Ruecking and Eistrup, copartners, and their surety, said bond being conditioned upon the faithful performance of a contract to construct a certain sewer for the city.

The petition alleged that on October 17, 1901, the appellant entered into a contract with Ruecking and Eistrup, contractors, by the terms of which they agreed to build a certain sewer in a workmanlike manner, according to plans and specifications on file in the office of the sewer commissioner of the city of St. Louis. That by said plans and specifications, defendants were required to use sewer pipe of the best quality of hard-burned salt-glazed vitrified clay pipe; that the pipes 'should be joined by filling the sockets with a mortar made of one part of Portland cement and three parts sand, and with only water enough to give a proper consistency and to be used as soon as made; that great care should be taken to make the entire joint perfectly water tight ;• that the space between the pipes when not laid in concrete and the sides of the excavation should be filled with sand, well rammed up to the middle of the pipe, and that from this point for at least twelve inches above the pipe the earth should be filled in so as not to disturb the pipe, and thoroughly rammed or soaked with water as might be directed; that during freezing weather laying of pipe sewers should, as a rule, be suspended, unless otherwise directed by the sewer commissioner.

Plaintiff alleged as breaches the violation of all the above specifications, in the words of the petition-as follows:

“The said defendants Herman Ruecking and Frederick Eistrup did fail, neglect and refuse to comply with the specifications and stipulations of the said contract, in this, to-wit: that in 'doing the work undertaken by them in the said contract they failed, neglected and refused to do the same in a substantial and workmanlike manner; that certain twenty-four-inch pipes laid by the said defendants in Grand avenue from Helor' street northwardly to Itaska street, in said Fillmore-Street Sewer District No. 2, were not of the best quality of hard-burned glazed vitrified day pipe, but the said pipes were insufficiently burned, were soft and porous in texture, were not vitrified and were not of the best quality; that in certain places where the said pipes were, or should have been, joined, the sockets were not filled with mortar as in the said contract required, and the said joints were no't made perfectly water tight as therein required; that at the places above mentioned the space between the pipes (when not laid in concrete) and the sides of the excavation were not filled with sand well rammed up> to the middle of the pipe, nor was the earth filled in for at least twelve inches above the pipe so as not to disturb the pipe, nor was the same thoroughly rammed or soaked with water; that during the freezing weather the laying of' pipe sewers was not suspended.”

Plaintiff further alleged that the work in said contract provided for was completed and accepted by plaintiff on or about the 24th of October, 1903, and was fully paid for. That on or about the 8th of Augnst, 1904, the plaintiff through its agents, the sewer commissioner and subordinates, discovered that certain twenty-four-inch pipes laid by said defendants in Grand avenue from Delor street northward to Itaska street were broken and cracked. That defendants were notified to replace the same with new pipe which they' refused to do. That the city thereafter caused the broken and cracked pipes to be removed and replaced them with new pipes at a cost of work and material of $1598.41 to the city. Then follows prayer for judgment.

Defendants’ answer, after formal admission as to the capacity of the parties and the execution of the contract and bond mentioned in the petition, contained a general denial of the other allegations of the petition and further answered by alleging that defendants faithfully performed all work required by the terms of said contract and the plans and specifications prepared by the plaintiff; that whatever defects were discovered by plaintiff’s agents were caused by the faulty plans and specifications which called for the best quality of twentv-four-inch hard-burned, soft salt-glazed,* vitrified clay pipe, which kind of pipe was too weak, .insufficient and inadequate for the purpose for which it was specified. They further aver an inspection and acceptance of the material and work as the construction progressed, as well as a final acceptance and payment for the work.

The reply denied the new matter set up in the answer.

At the beginning of the trial defendants demurred to the introduction of evidence, which demurrer was overruled.

Plaintiff introduced in evidence a certified copy .of the contract, and specifications and plans, as proof of the plans and specifications alleged to have been violated and disregarded by defendants.

After evidence was heard upon both sides and the cause was submitted to a jury, a verdict, sighed by nine jurors, was returned in favor of the defendants. Judgment followed the verdict and after timely motions and other required steps being taken the cause is here upon appeal of the city. Complaint is largely lodged against instructions and these with the pertinent facts will be taken with the points made.

I. Among other things the following appear. There was proof on both sides as to the character of the tiling used. It stood admitted that the contractors had not used the sand in packing the tile, but had used loose dirt, but on the other hand there was proof that in damp ditches, such as the one in question, the loose earth was as good or better than the sand. Other matters might be mentioned but these suffice to illustrate the point.

Defendant asked and received this instruction:

“The court further instructs the jury that if you find and believe from the evidence that the best quality of twenty-four-inch hard-burned, salt-glazed, vitrified clay pipe, laid in the manner prescribed in the contract between defendants Herman Ruecking and Frederick Eistrup and the plaintiff, were insufficient,, too Weak or inadequate for the purposes for which the same were intended by the contract, and that the broken and cracked condition discovered by plaintiff or its agents' on or about August 8, 1904, was due to the condition of said pipe so specified, and that said materials were furnished and the work done substantially as provided by said contract, then your verdict must be for the defendants.”

We have underscored the language to which plaintiff objects.

Plaintiff asked a general instruction covering the case, which wound up by' telling the jury that if they should find the facts to be as rehearsed and set forth in such instructions then they should find for plaintiff. To this instruction the court ádded the following clause: “Unless you find and believe from the evidence that notwithstanding the neglect and omission of any of the requirements mentioned above, the defendants did said work in substantial and workmanlike manner in substantial conformity with the plans and specifications on file for the same.”

It will thus be seen that the battle nisi was waged on the question, as to whether or not “substantial performance” was a valid defense under a contract of this kind. The jury found that there was substantial performance. Two questions arise on the record, (1) whether the doctrine “substantial performance” as a matter of law has a place in a contest over a contract of this kind, and (2) whether or not under the admitted fact that dirt had been used instead of sand, ought the court to have said under the evidence that there was no substantial performance as a matter of law, notwithstanding the doctrine of substantial performance should prevail.

That the doctrine of “substantial performance” as to contracts of this character prevails in this State, we think there is no question. Dillon, Municipal Corps., sec. 812; St. Joseph v. Anthony, 30 Mo. 537; Cole v. Skrainka, 105 Mo. 303; Steffen v. Fox, 124 Mo. 630; Johnson v. Duer, 115 Mo. 366; Asphalt Paving Co. v. Ullman, 137 Mo. l. c. 570; Whitworth v. Webb City, 204 Mo. 579; Porter v. Paving Co., 214 Mo. 1.]

Speaking of the more liberal doctrine in Missouri in 2- Dillon on Municipal Corporations, at section 812, it is said: “In Missouri, in actions to recover idle amount charged against a lot for local improvements in front thereof, the liberal doctrine is adopted, that a substantial compliance with the law is sufficient, and it is not necessary for the city to prove a strict compliance with directory ordinances on the subject, but the lotowner or defendant may show a neglect of duty by the authorities, and if he was injured thereby, it will constitute a defense. If the work has been done in a manner satisfactory to the corporation, and has been accepted by it, a prima facie case is made out.”

The present seyer is one paid for in taxbills, and its construction was supervised by the proper city authorities. According to the evidence each joint of tile was inspected, and the unsound ones rejected. These details, however, we take up more fully under another question urged. But it should be here remembered that this action is by thé city upon this contract.. It is not one by an adjoining property owner to cancel the tax-bills, but it is by the city upon a contract made between itself and the construction company.

In this court the matter was thus mentioned by Burgess, J., in the recent case of Whitworth v. Webb City, 204 Mo. l. c. 601: “All cases relied upon by defendant were suits between the city and a third party to enforce a lien for improvements, under statutes which, because of their special character, are strictly construed; or actions against the city upon a contract which was invalid. In the case at bar the contract sued on was between parties capable of contracting with respect to the subject-matter thereof, and the same rule does not apply as that which obtains in cases for the enforcement of a special lien against property for street improvements. In this class of cases a substantial compliance with the ordinance, contract and specifications, is all that is required.” In the Whitworth case the city was paying for the sewer without recourse to taxbills.

Likewise in the very late case of Porter v. Paving & Construction Co., 214 Mo. l. c. 19, Gantt, J., said: “We think that the defendant is right in insisting that the test is whether the sewer was completed,, and not whether some of the details of the work were not strictly in'accord with the specifications and the contract. The city engineer accepted the work and the city issued the taxbills, and while this does not estop the plaintiffs from complaining of the manner in which the work was done under the provisions of the Kansas City charter, we think that if falls far short of showing that the work was not completed within the meaning of the charter as to the issuance of the tax-bills.”

In the latter case it was urged that the sewer had not been completed. Among the contentions to this end, a portion of the work was designated. On page 18 of the report cited above the insistence of the property owner .is set out thus: “The main insistence is that the contractor failed to carry out that particular provision of the contract which required that where a sewer is built above the ground and any other foundation than embankment is used there shall be a covering of earth of the construction and sewer built thereon to a height of one foot above the sewer with a width at the top of not less than the greatest external diameter of the sewer. It appeared that in this case instead of laying the sewer pipe on top of a masonry wall it was laid ha the wall, the masonry extending above the top sewer pipe. The city engineer testified that the pipe was covered with masonry and for that reason he did not require the earth embankment, as the masonry was much more lasting and much less liable to wash off. And it was also shown that the contractor had the express permission of the city engineer to substitute the masonry over the sewer pipe in lieu of the loose dirt. ”

The taxbills were held valid, although there had been no strict compliance with the literal terms of the contract.

So in the case at bar there was much evidence showing that the city authorities inspected the work sued for at every step of its construction; that they knew of the change from sand to loose earth. That evidence also shows that in a wet ditch as this was shown to he the loose earth was better than sand.

Black, J., after reviewing our own case in Cole v. Skrainka, 105 Mo. l. c. 309, said: “These cases are sufficient to show that this court has never adopted the extreme view that, in order to recover for these local improvements, the plaintiff must show a literal compliance with all the provisions of the ordinances. Distinction must be made between those matters which affect the substantial rights of the parties and those which are formal or directory. Now, in this case, the proceedings leading up to the letting of the contract are regular and formal. The alleged fatal defect lies in the difference between the ordinance and the contract as respects the depth of the blocks. Is there any real difference ? ” It was held that there was no substantial failure where the contract said certain granite blocks should be eight-inch in size and seven- and eight-inch blocks were furnished. The earlier cases which wé first cited above are cited and quoted from by Judge Black in this Skrainka. case.

In Steffen v. Fox, 124 Mo. l. c. 635, Macfarlane, J., uses this language: “A strict and literal compliance with ordinances, and contracts thereunder, prescribing the manner in which public street improvements shall be made, has never been required as a condition to the acceptance of the work by the city or to the validity of the taxbill, for the cost thereof charged against the property of individuals.”

We are cited to some language used by Judge Gantt in McGrath v. St. Louis, 215 Mo. l. c. 207, whereat he says: “In short, we think the plaintiffs utterly failed to show any authority in Ittel to vary this contract, and he denies that he had any such, and denies that he ever attempted to exercise such functions, and denies the testimony of McGrath. To hold that these municipal contracts, which are so carefully provided for in the charter, can be changed by any officer or subordinate would destroy the principle of. competitive bidding, which is a prime feature of the charter.” Counsel for plaintiff place much stress upon this language, but they apparently fail to consider the nature of the case in which it is used. "When the case is considered there is nothing meant by this language which Would tend to overthrow the trend of the law of this State toward a liberal construction of these contracts for public improvements. .The opinion,of the same judge in the Porter case, supra, would so indicate, if the entirely different character of the McGrath case did not so indicate. McGrath was not suing upon a contract, but in tort.

We therefore conclude that “substantial performance” may be pleaded and proven under contracts of this character, and if so there is no error in giving an instruction submitting the question, if there is evidence to justify.

Passing next to the failure to use sand. Taking the Porter case, supra', as an example, it would hardly be called a substantial non-compliance with the contract, when city officials are inspecting the work each .day and know how it is being done, and when no fraud or collusion is charged to the parties, and when as in this, ease practically all the evidence shows that owing' to the character of the ditch, the dirt was better; The ditch was a wet one and the evidence tends strongly to show that the sand was wisely dispensed with in this case. Nor are the damages found to have been occasioned to the pipes shown to have resulted from this failure.

We hardly think that as a matter of law the court should have held this failure to be fatal under! the evidence and therefore no error in submitting the whole ease to the jury , ,

II. The latter question above discussed was presented to the jury by the following instruction given at the instance of the defendant:

“The court instructs the jury that even if you find and believe from the evidence that in laying the sewer referred to in this cause, the defendants’ did not use sand, but instead of sand used fine earth, that fact alone will not entitle the plaintiff to recover in this case, unless you further find and believe from the evidence that the defective condition of said sewer which plaintiff claims to have discovered in August,' 1904, and which it claims to have repaired, was directly occasioned by such failure on defendants’ part to so use sand.”

And by one of the plaintiff’s instructions which the court modified, which when modified, read: “The court instructs the jury that neither the street commissioner, nor any of his agents, nor any other officer or servant of the plaintiff city had any authority to change the provisions of the contract in evidence so as to permit or authorize the defendants Ruecking* and Eistrup to substitute for the best quality of hard-burned, salt-glazed vitrified clay pipe, any pipes which were of any other quality, nor so as to permit or authorize said defendants to perform the work of laying said pipes in any other way or manner than according to the provisions of the said contract, or in substantial compliance with the same.”

The one requested by plaintiff of which the foregoing is a modification by the court omitted the doctrine of “substantial compliance” discussed in our first paragraph.

When it is considered that the action of the plaintiff is one to recover damages for having to remove and replace a part of the tiles- which were found broken, we think these instructions cover the law of the ease. The absence of the sand was not shown to be a canse for the alleged damage. This covers the alleged errors as to instructions. The complaint as to the instructions is confined to the questions we have discussed in these paragraphs, and no further note need be taken of the instructions. In our judgment the case was properly submitted to the jury and this opinion Would end here, but for an important question going to the whole case urged by the defendants, and one additional charge urged in the reply brief of the plaintiff. These we take next.

III. We take the contention of the plaintiff first. Defendants maintain in the briefs that the suit is bottomed upon paragraph 6 of the contract, which reads:

“The contractor, when directed by the sewer commissioner, shall remove, rebuild, and make good, at his own cost, any work which the latter decides to be defectively executed; and omission to condemn work at the time of its construction shall not be construed as an acceptance of defective work, and the contractor will be required to correct all imperfect work when discovered, before final acceptance of the work. ’ ’

Plaintiff claims in the reply brief that it is based upon paragraph 11 of the contract, which reads:

“The sum of two hundred dollars which the party of the first part has paid into the treasury before executing this contract, in accordance with section 1871 of Revised. Ordinance No. 19991, approved April 3, 1900, shall be used as a special fund for making repairs in the manner hereinafter provided. .
“If at any time within twelve months after the completion and acceptance of the work herein contracted for, the said work, or the surface of any street, alley or public place on the line thereof, shall (in the judgment of the street commissioner as to the street, alley or public place,, and of the sewer commissioner as to the work) require repairs, the sewer commissioner shall- notify the contractor to make the repairs required. If the contractor neglects to make such repairs within three days from the date of the service of such notice, the sewer commissioner shall cause the repairs to be made, in any manner as he deems best, and the whole cost thereof, both for labor and materials, shall be paid out of the special fund before mentioned. This fund shall be kept up to the full amount of two hundred dollars, and the remainder finally repaid in the manner set forth in the two following sections of the said Eevised Ordinance.”

The petition pleads two ordinances, but nowhere mentions ordinance No. 19991, which is mentioned in paragraph 11 of the contract, supra. Neither does the petition speak of a trust fund as spoken of in said paragraph. Not only is there no pleading of this ordinance, but there is no proof of it. It is therefore evident that this was not the section of the contract sued upon. We have taken the pains to examine the said ordinance- for our own satisfaction. This ordinance was the revised code for the city of St. Louis which was passed by way of Ordinance No. 19991, and approved April 3, 1900. [See preface of Eugene McQuillin, to the Municipal Code of St. Louis for year 1901.]

Section 1871 reads: “Before a contract awarded by the board of public improvements for any work which is to be paid for by special tax, is executed, the bidder to whom the award has been made shall be required to pay into the treasury the sum of two hundred dollars, without regard to the number of his contracts, as a special fund to be used by the commissioner under whose charge the work is to be done, to defray expenses of necessary repairs on the. work, if said contractor shall be liable under his said contract or contracts, and which repairs said commissioner shall order made by reason of a failure of said contractor to make such repairs himself within the time specified by said commissioner.”

This paragraph 11 of the contract also speaks of the two following .sections of the said ordinance. These sections (1872 and 1873) read:

“Whenever the whole or part of said two hundred’ dollars shall have, been expended for the purpose described in section one thousand eight hundred and seventy-one, the president of the board of public improvements shall notify said contractor to pay so much money into the treasury as will bring the fund again up to two hundred dollars; and until he shall have complied with said notice from the president of the said board, no new contracts for special tax work shall be awarded him, nor shall any special taxbills be delivered to him.
“Whenever such contractor shall cease to be contractor for special tax work, or to be responsible under any of his contracts for repairs on special tax work done by him, the president of the board of public improvements shall certify this fact to the auditor, and, on presentation of such certificate, the auditor shall draw his warrant on the treasurer, in favor of said contractor, for the whole amount standing to the credit of the special fund created by the payment of said contractor, in accordance with the provisions of sections eighteen hundred and seventy-one, and eighteen hundred and seventy-two, and shall take his receipt therefor, in full of all claims against the city on account of said payments.”

It cannot be said that this action is based upon paragraph 11 of this contract. We have gone beyond the ordinary rule to go into ordinances not pleaded nor proven, but counsel were so persistent in their claims, that a sufficient excuse is furnished therefor. There is therefore absolutely no merit in this contention of the plaintiff.

IV. Defendants claim that the city, having accepted the work finally under paragraph 6 of the contract and having issued the taxbills, is estopped from bringing this action. If the action is not based upon paragraph 11 of the contract, and we feel satisfied that it is not so based, then in our judgment this contention is true, unless collusion or fraud is alleged and shown as between the agents of the city and the contractor. These two paragraphs of the contract are the only ones we are cited to as controlling the situation, and the only ones we find .directly in point. There are others which shed light thereon.

Paragraph three reads: “The contractor shall commence the work at such points as the sewer commissioner may direct and conform to his directions as to the order of time in which the different parts of the work shall be done, and to all his instructions as to the mode of doing the same.”

Paragraph four reads: “Whenever the contractor is not present on the work, orders will be given to the superintendents or overseers who may have immediate charge thereof, and shall by them be received and strictly obeyed. If any person employed on the work shall refuse or neglect to obey the directions of the sewer commissioner, or his duly authorized agents, in anything relating to the work, or shall appear to the said commissioner to be incompetent, disorderly or unfaithful, he shall, upon the request of the said commissioner, be at once discharged, and not again employed on any part of the w’ork.”

Paragraph eight reads: “To prevent all disputes and litigations, it is further agreed by the parties hereto that the sewer commissioner shall, in all cases, determine the amount or quality, or the classification of the several kinds of work or material which are to be paid for under this agreement, and that he shall decide all questions which may arise relative to the execution of this agreement, and his estimates and decisions shall he final and conclusive.”

Paragraph six we have set out in full in a preceding paragraph of this opinion. Other portions of this long and complex contract might he quoted, hut they all tend to show that the city retained and maintained a constant and thorough supervision of the work under contracts of this kind. By the evidence it was shown that the work was thoroughly inspected and supervised. By paragraph four it is provided that in giving the orders under paragraph three, supra, if the contractor Was not present the city officials could give their directions to the party or parties in immediate control of the work for the contractor and such orders “shall by them be received and strictly obeyed.” Further in paragraph four it is further provided that if such person or persons refuse to obey the orders of the city officials, or if any person employed upon the work appear to the city agents to be incompetent, the contractor ripon request must discharge such employee and not thereafter use him upon such work. All these things tend to show the absolute control retained by the city over the work. Other provisions provide for the testing of materials by the city authorities in charge.

Now, reverting- a moment to paragraph six of the contract, it clearly refers to matters and things to be done “before final acceptance of the work,” and not to happenings after the acceptance. The paragraph, as will be seen from a reading of it, supra, closes with the words last quoted.

It is'not disputed that there was a final acceptance of this work by the city and it is not charged or intimated either by petition or proof that there was fraud or collusion as between the agents of the city and the contractor. To our mind under paragraph six of the contract the city is precluded of an action for things happening after the final acceptance. The acceptance is final as to the matters' mentioned in clause six of the contract, supra, and this suit is not under paragraph or clause eleven thereof. The city ratified the acts of its agents in permitting the change from sand to dirt by accepting and paying for the 'work. Even though the slight change made was beyond the purview of the powers of the agents, yet where the unauthorized act is along the line of a business fully authorized by law and statute, the acceptance, with knowledge, binds the corporation. Of the bona fide acts of honest agents, the city has knowledge through the knowledge of its agents.

In 1 Dillon on Municipal Corporations (4 Ed.), section 463, it is said: “A municipal corporation may ratify the unauthorized acts and contracts of its agents or officers, which are within the scope of the corporate powers, but not otherwise. Ratification may frequently be inferred from acquiescence after knowledge of all the material facts, or from acts inconsistent with any other supposition. The same principle is applicable to corporations as to individuals.” This doctrine was quoted and approved by this court in Aurora Water Co. v. Aurora, 129 Mo. l. c. 583.

' The city in this case should not be permitted to stand present through its agents and officers and permit and sanction such a change as this in a contract, and thereby occasion the expenditure of large sums of money, accept the work, and then afterward undertake to hold the defendants liable. Nor should the city have an inspector examine each tile and place the city’s stamp of approval or disapproval upon it and then afterward be permitted to say that it did not come up to contract. What is here said as to the tiling need not be said perhaps for the full disposition of the case, for the jury found that they did come up to the contract.

Of course, had the petition charged fraud and collusion between the contractors and the city’s agents, then such fraud would vitiate the acceptance and destroy its force and effect.

We are fully satisfied that the city made no case either in fact or law. The judgment nisi is affirmed.

IN BANC.

GRAVES, J.

The foregoing opinion, written in Division One of this Court, is adopted as the opinion of the Court in Banc.

Kennish, Ferriss and Brown, JJ., concur; Lamm, J., concurs in result; Valliant, G. J., and Woodson, J., dissent.


author: FERRISS, J. WOODSON, J.

text:
    WILLIAM F. HALL v. CITY OF SEDALIA et al., Appellants.
    In Banc,
    February 9, 1911.
    1. EQUITY: Suit to Declare Contract Invalid Before Performance. Ordinarily a court of equity will not .entertain a bill to construe a contract, or to declare a contract invalid, before any performance or attempt to perform or refusal to perform is shown. But in this case, which is a suit by a contractor with a city to have declared invalid a contract to construct a sewage disposal tank, on the ground that the 'statute which authorized the contract is unconstitutional, and in consequence the taxbills to pay the cost of construction would also be void, the court entertains the suit on the ground of the public character of the contract — but this action is not to be regarded as a precedent for suits of like character. Held, by WOODSON, J., dissenting, that the court cannot assume to entertain the suit except by the exercise of a power not delegated to it, and therefore ought not to entertain it at all.
    2. CONSTITUTIONAL LAW: Local or Special Law: Sewage Disposal Plant: Act of 1895. The Act of 1895 (Laws 1895, p. 58), providing a scheme of sewer construction for all cities of the third class which should, hy vote of the people, adopt the provisions thereof, is not a special or local law within the meaning of section 53 of article 4 of the Constitution. [Following, on this point, Owen v. Baer, 154 Mo. 434'.]
    3. -: Made Effective by Vote of People: Sewer Construction: Act of 1895. The Act of 1895 (Laws 1895, p. '58), providing that “in every city of the third class in this State, the acting municipal authorities thereof, upon a vote hy ballot of two-thirds of the qualified voters, . . . shall have power by ordinance to provide drains and sewers,” does not violate section 7 of article 9 of the Constitution declaring that “the powers of each class [of cities] shall be defined by the general laws, so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions.” The act is general, is complete in itself, applies to every city of the third class; and the fact that it does not become effective in any city until that city adopts it, and that one city may adopt it and another.may not, does not render it invalid.
    4. -: Drains and Sewers and Appurtenances: Local Option Law: No Readoption After Amendment Providing for Disposal of Plant. The Act of 1895 was, according to its terms, adopted by the voters of a city, and it authorized the city, after its adoption, to provide for “drains and sewers,” and those words are used throughout the act, with the additional words “connections” and “appurtenances.” One section provides that “sewers may be constructed and maintained with inlets, laterals, branches and appurtenances,” and another that “any sewers heretofore or' hereafter constructed may be changed, diminished, enlarged or extended, and shall have all the necessary laterals, inlets and other appurtenances which may be required.” Held, that the act as it stood authorized the city to construct a sewage disposal tank, the word “appurtenances” necessarily contemplating such a plant; and the fact that the Legislature in 1909 amended the act by inserting after the words “drains and sewers,” the words “and all necessary plants for’ the disposal of 'sewage,” and that the act was not again adopted by the people after such amendment, does not affect the validity of any contract thereafter entered into by the city for the construction of a sewage disposal plant.
    5. -: -: -: -: Legislative Construction. The amendment of 1909 may be regarded as a legislative declaration that the Act of 1905 was not broad enough to include sewage disposal plant's; but ihe courts are not bound by an erroneous construction of the law by the Legislature. The act was broad enough to include a sewage disposal plant without that amendment.

      6. -: Adoption of Act Also Adoption of Amendment. When the people of the city, by the necessary vote, adopted the Act of 1895 and the sewage plan thereby provided, the city thereby became subject not only to that general law, but al'so to any amendments that the Legislature might thereaftef enact.
    Appeal from Pettis Circuit Court. — Hon. Louis Hoffman, Judge.
    Reversed and remanded (with directions).

      W. W. Blain for appellants.
    The separate opinion of Gantt, C. J., in Owen v. Baer, 134 Mo. 438, was not the majority opinion of the court, so far as it held that a local option provision for classified cities created a class of cities not authorized by the Constitution. Ex parte Handler, 176 Mo. 390. This court has repeatedly held that a separate class of cities is not created by local option laws. State ex rel. v. Pond, 93 Mo. 606; Ex parte Handler, 176 Mo. 390; State v. Harp, 210 Mo. 259: It is not necessary to resubmit the proposition to a vote of the people, after an amendment of the law, that had been previously adopted. Andrews v. People, 84 111. 28; Commissioners v. P'eople, 134 111. 170; Swiett v. Sprague, 55 Me. 190; State ex rel. v. Wilcox, 45 Mo. 458, •

      W. E. Owen for respondent.
    (1) The provisions' of Secs. 5876 to 5893, R. S, 1899, providing that any city of the third class might operate under the power therein given, when adopted by a two-thirds vote of the qualified voters of any city of such class, are unconstitutional. Constitution, art. 9, sec. 7, and art.-4, sec..53; Ow'en v. Baer, 154 Mo. 434. The opinion in the case above cited, about a sewer construction contract let by the city of West-port, which had by vote assumed to act under the authority of a special sewer scheme, is in every way similar to the case here, and unless that case is flatly overruled, it is decisive of the questions at issue in this case. Appellants contend that the case cited does not hold that local option sewer provisions are in violation of section 7 of article 9, of the State Constitution, and cite the remarks of Gantt, J., in Ex parte Handler, 176 Mo. 3.90. Appellants are in error in overlooking the force and effect of the Baer case. While it is true that only Judges Gantt, Robinson and Valliant directly held the sewer scheme void as in conflict with section 7 of article 9 of the Constitution, yet Judge Sherwood, in a separate opinion, held it void, as in conflict with section 53 of article 4 of the Constitution, and Judge Burgess concurred with him. In fact, the Sherwood opinion held that no proposed law could he referred to a vote of the people, to determine whether it should become operative, except in cases pointed out in the Constitution itself; and he further contended that the Constitution having provided that some matters might he submitted to the people for a vote, necessarily excluded the right of the Legislature to submit any others. And on page 447 of that case, he uses the following forceful language: “The Constitution specifically provides just when and where a vote of the people may he taken, and by so doing the framers of that instrument necessarily excluded all implication as to authority to vote being granted to the people, in any other cases than those mentioned.” The conclusion then is plain, that five of the seven judges held that the sewer scheme of Westport, in litigation in that case, was unconstitutional and void; and such must he the holding in this ease, unless the court decides no longer to abide by the holding in that case. (2) Even if the sewer sections referred to he held valid and constitutional, yet the amended Laws of 1909, did not by their terms confer the enlarged powers therein given to cities that had theretofore voted to adopt the scheme set ont in said sections of the statutes. It seems to be prospective and not retrospective in operation. Laws 1909, p. 293. Assuming that Sedalia had legally adopted the provisions of Revised Statutes 1899, from 5876 to 5893, inclusive, it was only vested with the essential powers therein given, and the people’ in voting endowed the city with only the specified powers. In that act there was no provision for construction of a sewage disposal plant and the purchase of land for same; that power was created alone by the Amendment of 1909, and nowhere in that amendment does it mention that cities of the third class which had theretofore adopted the provisions of statutes amended, should have the additional power therein given.
   FERRISS, J.

This case comes here by appeal from the circuit court of Pettis county, where judgment was rendered in favor of respondent on May 21, 1910. The case arises upon the following faets:

The respondent, plaintiff below, entered into a written contract in March, 1910, with the city of Sedalia for the construction of a sewage disposal plant, and for the construction of sewer mains to be connected therewith, at a total cost of $36,000, and as security for the performance of such contract, plaintiff gave bond to the city in the sum of $8000. Before work was begun plaintiff was advised by counsel that the act of the Legislature under which the city was proceeding to erect this disposal plant was unconstitutional and void, and that the special taxbills that should be issued to the plaintiff in payment for the work done under his contract would not constitute a valid lien on the property in the district, and could not be collected by law; whereupon plaintiff filed his bill in equity praying the court to cancel, annul, and declare wholly null and void plaintiff’s aforesaid contract and bond. Issues were made up, the case was tried hy the court, and judgment rendered for plaintiff granting the relief prayed for. Due proceedings were had, and the ease comes here hy appeal.

Two questions arise upon the record:

1. It is contended by the plaintiff that the act of the Legislature passed in 1895- (Laws 1895, p. 58), providing a scheme of sewer construction for all cities of the third class which should, by a vote of the people, adopt the provisions of such act, violates section 7, article 9, of the Constitution, which provides that the powers of each class shall he defined by general laws, “so that all such municipal corporations of the same class shall possess the same powers and he subject to the same restrictions,” in that it permits certain cities, voting affirmatively, to acquire powers which are not common to all cities of the third class; and that it also violates section 53 of article 4, which forbids the General Assembly to pass any local or special law. This contention is based upon the case of Owen v. Baer, 154 Mo. 434.

2. It is also contended that even if the Act of 1895 is held to he constitutional, yet the contract in question is invalid because the power granted to the city to erect a disposal plant was not in the original act as voted upon hy the people, hut was granted hy an amendment to that act made hy the Legislature in 1909, which amendment had never been submitted to or voted upon hy the people, and that therefore the enlarged powers given to the city hy such amendment were not in force and effect, and could not he made effective without an affirmative vote hy the people.

I. Upon the threshold of this case arises the question whether a court of equity will entertain a hill to construe a contract, or to declare a contract invalid, before any performance or attempt to perform is shown. If a man makes a contract, and afterwards before beginning a performance, doubts its validity, he has his legal remedy. He may decide either to perform or refuse to perform, and take his chances in a court as to results. If this were a contest between individuals over a matter of private interest only, it would be a serious question whether the court would entertain the case at all. In view, however, of the public character of the contract in question, and in further view of the fact that the law invoked in this case cannot be regarded as being satisfactorily settled by the former decisions of this court, we have decided to pronounce judgment upon the questions involved; our action, however, not to be regarded as a precedent for suits of this character.

II. Constitutional questions of the character of those involved in the present case have been frequently before this court. They received a full discussion in Owen v. Baer, 154 Mo. 434. That case arose upon the Act of 1893 (Laws 1893, p. 101), which provided that “in every city in this State, of either the third class or of the fourth class, the acting municipal authorities thereof, upon a vote by ballot of two-thirds of the qualified voters,” etc., “in favor of adopting the provisions of this act, shall have power by ordinance to provide drains and sewers for the same,” etc. The aforesaid act is similar to the Act of 1895 in question, so far as the questions raised are concerned. Westport, a city of the fourth class, proceeded under said act to construct a sewer system, and issued tax-bills in payment thereof, and Owen v. Baer, supra, was a suit to cancel certain of these taxbills upon the ground that the act was in violation of section 7 of article 9, and section 53 of article 4, 5f the Constitution; presenting questions similar to those in the case’ at bar. Three judges In Banc, Gantt, C. J., and Robinson and Valliant, JJ., held the Act of 1893 to be in violation of section 7 of article 9, upon the ground that this act enabled some cities of the fourth class to acquire powers not possessed by other cities of that class; that it created, in the language of Judge Gantt, who wrote the opinion, “a dissimilarity in the powers of cities of the fourth class.”

Judge Sherwood, in a separate opinion, Judge Burgess concurring, held that the act was unconstitutional because it was not within those specific provisions of the Constitution which Judge Sherwood said provided “just when and where a vote of the people may be taken.”

Judge Marshall, in a separate opinion, held that the act was a valid one, violating no provision of the Constitution, and that the bill of plaintiff should be dismissed. Judge Brace concurred with Judge Marshall upon the proposition that the act did not violate section 7 of article 9.

Five of the judges concurred in holding the act invalid; three upon one ground; two upon another and different ground, and one upon a ground which does not appear.

The decision in Owen v. Baer settled that case, but it did not establish the judgment of this court upon the main proposition involved in the. case at bar; that is, that the act violates section 7 of article 9 of the Constitution.

The respondent contends, first, that the Act of 1895, now sections 9281 to 9298 inclusive, Revised Statutes 1909, violates section 53 of article 4 of the Constitution, in that it is a local or special law; second, that it. violates section 7 of article 9, in that it enables some cities of the fourth class to acquire powers not possessed.by all the cities of that class.

These two propositions were presented in the Owen-Baer case. Upon the first proposition the separate opinion of Judge Gantt accepted the holding of Judge Marshall. Hence, a majority of the court agreed that the act did not violate section 53. of article 4. That proposition may be regarded as settled.

As the second proposition received the approval of only three members of the court, it remained open so far as the case of Owen v. Baer goes, and so far as we are advised, is still an open question in this State.

The act in question provides: “In every city of the third class in this State, the acting municipal authorities thereof, upon a vote by ballot of two-thirds of the qualified voters,” etc., “shall have power by ordinance to provide drains and sewers,” etc.

Does this act violate section 7 of article 9 of the Constitution, which provides that “the power of each class [of cities] shall he defined by general laws, so that all such municipal corporations of the same class shall possess the same powers and he subject to the same restrictions!” The act in question is complete in itself, and is uniform in its application to cities of the third class, and comprehends all cities of that class. Whether the law shall come into operation in any particular city depends upon a contingency, namely, an affirmative vote of the people of such city. But this applies to each and every city in the class. The law extends the same right, the same privilege, to each city in the class, and is therefore uniform. It is, in the language of the Constitution, a “general” law, and under it all the cities of the same class, as required by the Constitution, “possess the same powers” and are “subject to the same restrictions.”

In passing upon the constitutionality of this law, we must look at it as it leaves the Legislature. Is it complete, effective, and universal in its application to cities of the third class! Does it give a privilege or power to one which, it denies to another? Does it impose restrictions upon any that do not apply to all? That the law does not take effect in any particular city until the people vote a desire for its application does not, in our opinion, affect the character of the law itself, provided that it may take effect in the same way and under the same conditions in every other, city of the same class. As was said by Wagner, J., in State ex rel. v. Wilcox, 45 Mo. 458, “The proposition cannot be successfully controverted that a law may be passed to take effect on the happening of a future event or contingency. The future event — the happening of the contingency, or the fulfillment of a condition — affords no additional efficacy to the law, but simply furnishes the occasion for the exercise of the power.” To the same effect is the reasoning of this court in the case of the Township Organization Law, 55 Mo. 295. The court had under consideration an act which provided: ‘ ‘ This act shall apply to and be in force in all counties adopting the act to provide for township organization, and takes effect from and after its passage,” and held it to be constitutional. The court said: “It is a general law made for the whole State, and by the terms of the act itself took effect from and after its passage.' Every county in the State may avail itself of the privileges offered by this law by a majority vote of its people. ... If a majority vote for it, such vote does not create the law, but places the county so voting within its provisions.”

Certainly, the validity of the law cannot depend upon whether one or all the cities choose to exercise the power which the act confers upon all. This act gives the same power to all the cities of the class. It does not confer one sewer system upon some of the citizens and another system upon others; but all the cities have the same power to adopt the same sewer system. The possession of the power does not depend npon its exercise; it depends npon the general law; which is in force equally upon all cities of the class, whether or not it is invoked.

An admirable review and discussion of the decisions of this court, as well as of the law elsewhere, pertaining to this question,, is found in the exhaustive opinion of Judge Marshall in the Owen-Baer case, supra. That opinion may be resorted to for the learning on this subject.

It is the judgment of this court that the act in question is constitutional and valid.

III. A further question is presented in this record-one not hitherto before the court. It arises concerning an amendment made in 1909 to. the aforesaid. Act of 1895. '

The situation is this: On April 1,1902, the people of Sedalia, by an affirmative vote sufficiently large, adopted the provisions of the Act of 1895. At that time the act, in its first section, authorized the city, after the adoption of the act by the people, to provide “drains and sewers,” and throughout the subsequent sections these words, “drains” and “sewers,” are used with the additional words “connections” and ‘“appurtenances.”

So the law stood when the people of Sedalia adopted its provisions. In 1909 the law was amended by. inserting after the words “drains and sewers” the additional words ‘ ‘ and all necessary plants for the disposal of sewage; ’ and so the law stood when, without further vote by the people adopting this amendment,this contract was entered into by respondent to construct a disposal plant for sewage and connecting mains therewith. ’ ,

It is claimed by respondent that the amendment, of 1909 did not confer upon cities which had theretofore voted to adopt the sewer scheme as set out in the Law of 1895, the enlarged powers given by such amendment to erect disposal plants, and that such enlarged powers could be acquired only by an affirmative vote of the people accepting the amendment. It is argued that the people, while willing to adopt a sewage scheme involving drains and sewers only, might refuse to approve one involving the increased expense of a disposal plant.

In our opinion, the right of the city of Sedalia to construct a disposal plant does not depend on the amendment of 1909. Section 1 of the original act provides for “sewers and drains” and “connections therewith.” Section 2 provides that “sewers may be constructed and maintained with inlets, laterals, branches and appurtenances.” Section 15 provides that “any sewers heretofore or hereafter constructed may be changed, diminished, enlarged or extended, and shall have all the necessary laterals, inlets and other appurtenances which may be required. ’ ’ .

The contract in question is based upon an ordinance of the city authorizing an enlargement and extension of the sewer system by adding thereto a disposal plant in the shape of the septic tank and mains connected therewith. A sewer system without a place to dispose of the contents would be useless. A septic plant for such disposition, with its connections, would be naturally appurtenant to, if not an integral part of, the system. The amendment of 1909, with its emergency clause, may be regarded as a legislative declaration that the original act was not broad enough to include disposal plants, and as such it is entitled to respectful consideration. We do not find that this amendment was occasioned by any ruling of this court holding the original act insufficient. The amendment was made, perhaps, to settle any question of doubt. However that may be, we are not bound by an erroneous construction of the law by tbe Legislature. [State ex inf. v. Goffee, 192, Mo. l. c. 688.] If, as a matter of law, the Act of 1895 authorized tbe construction of tbe plant in question, the fact that tbe Legislature erroneously regarded tbe act as insufficient, or doubtful, would not make it so. Furthermore, we are of tbe opinion that when tbe city adopted tbe Act of 1895 and tbe sewage plan thereby provided, it subjected itself to tbe general law then in force, and also to any amendments that the Legislature might thereafter enact.

In accordance with tbe foregoing views, tbe judgment is reversed and tbe cause remanded, with instructions to dismiss tbe bill.

All concur, but Valliant, G. J., who is absent, and Woodson, J., who dissents.

DISSENTING OPINION.

WOODSON, J.

I dissent from tbe first paragraph of this opinion, for the reason that there- is no equity in tbe bill. Tbe opinion itself concedes this fact; but notwithstanding that fact, this court entertains tbe appeal and adjudicates the cause upon its merits as though a court of equity bad jurisdiction of tbe same.

Tbe only excuse offered for this anomalous proceeding is found in tbe bare statement of tbe opinion that it is not to be taken as a precedent.

Notwithstanding that statement, it is a precedent, or rather it will- become so just as soon as tbe opinion is banded down; and must be followed when a like casé is presented, or it must be overruled.' If overruled, which the opinion intimates will be done when another case of like character is presented, then this court will justly be charged with partiality and discrimination. If, upon tbe other band, the opinion should be followed, then it violates all equitable procedure, and also violates that provision of the Constitution which guarantees the right of trial by jury simply by a court of equity assuming jurisdiction of an action at law. The latter is triable before a jury, while the former is triable before the court; but this opinion with one stroke of the pen strikes out the right to a trial by jury. While it is true that point was not raised by counsel, however it is in the case, and the court has raised the point itself only to brush it aside as so much chaff, and if adhered to must deny that valuable right to the next comer.

This opinion, like many others found in the books, shows the greatest danger which threatens the perpetuity of all forms of government, namely: the seeming necessity for the lodgment of absolute and final power in some individual officer or officers, who assume and exercise powers not delegated to them by the law, and yet there is no remedy because of said final and absolute power.

That excessive exercise of power is the rock upon which the ship of state of all nations has been or will be wrecked, and it will just as surely wreck those of the present and future nations as it has wrecked those of the past. The only salvation there is, if any, from wreck and ruin, rests with a wise pilot who will steer the ship clear of the breakers by wisely exercising only the powers entrusted to him within the true spirit and meaning of his grant of power.

A court has no more legal or moral right to exercise power in excess of its true jurisdiction simply because of its unrestrained physical power than an individual has to violate the laws of the land simply because he has the physical power to so do. The difference being, the latter’s conduct is subject to review, while the former’s is not. In-the long run, however, the disastrous results of the former will be more detrimental to society than that of the latter. The one wrecks governments, while the other ruins individuals.

This case within itself may be of little importance, but when considered in connection with the jurisprudence of a great State it may at some future time cut an important figure. As was said by Napoleon in speaking of the Russian "War, “No events are trifling with regard to nations and sovereigns, for their destinies are controlled by the most inconsiderable circumstances.” He then went on to state what trivial things brought about the war, which ultimately involved all Europe, and finally resulted, if I remember correctly, in his downfall at Waterloo.

It is just such opinions as this that upset and keep the law in an unsettled condition, and render its administration difficult and uncertain, and lay the foundation for further usurpation.

I express no opinion as to the other paragraphs