author: WILLIAMÍS, C.- PER CURIAM.

text:
    PHOENIX BRICK AND CONSTRUCTION COMPANY, Appellant, v. GENTRY COUNTY.
    Division Two,
    April 3, 1914.
    MUNICIPAL CORPORATIONS: Streets: Improvements: Tax Bills. A preliminary resolution passed by a board of aldermen, preparatory to improving streets, is insufficient and void if it fails to describe the work to be done or tbe materials to be used, and tax bills based tbereon are also void. [R. S. 1909, sec. 9411.]
    Appeal from Gentry Circuit Court. — Hon. G. W. Wannamaker, Judge.
    Aeeirmed.

      Charles F. Strop and Eugene Silverman for appellant.

      J. W. Peery and W. F. Palbey for respondent.
   WILLIAMÍS, C.-

Plaintiff seeks to recover from the defendant county the sum of $5728.94, the amount of a special tax bill for excavating, paving and curbing a portion of the public street surrounding the court house square in the city of Albany, Gentry county, Missouri. Albany is a city of the fourth class.

Defendant filed answer in the nature of a cross-bill. The answer, after setting forth general denial, sets up an affirmative defense praying that the court decree said tax bill to be void and that the same be cancelled. The allegations in the answer in support of the prayer for affirmative relief are substantially as follows:

(1) That sections 9427, 9428 and 9429 (providing that cities of the fourth class may issue tax bills against the county for certain street improvement made abutting county property) are unconstitutional, as being in conflict with section 28 of article 4 of tbe Constitution of Missouri in that tbe title to said act is insufficient and misleading.

(2) Tbe preliminary resolution passed by tbe board of aldermen of said city declaring tbe work necessary was insufficient and void because it did not describe tbe work to be done or tbe material to be used.

(3) No valid estimate of tbe work to be done was ever made or filed by tbe city engineer of said city as required by law.

(4) Tbe preliminary resolution passed by tbe board of aldermen failed to describe tbe grading to be ■done in said improvement and said board never found ■or declared that tbe revenue of said city was insufficient to pay for said grading tbe expense of wbicb was included in tbe total sum of said tax bill.

(5) Tbe cost of paving tbe squares formed by tbe street crossing was not apportioned and assessed as provided by section 5983 of tbe Revised Statutes of Missouri, 1909.

(6) No sufficient legal or valid notice of tbe requirements of said work was ever served upon defendant as required by section 9429, Revised Statutes of Missouri, 1909.

(7) Plaintiff failed to do said work in accordance with tbe terms of tbe contract and specifications, alleging in detail said failure.

Tbe reply was in substance a general denial and also alleged that tbe defendant was estopped to contest tbe validity of said tax bills, and tbat tbe grading charged for in the tax bill was for “subgrading,” instead of “grading.”

By stipulation of tbe parties tbe case was treated as a suit in equity and all tbe issues were tried before tbe court without a jury. Tbe court found tbe issues for tbe defendant and entered tbe following decree:

“Now on this day, this cause coming on again to be heard, and the court having taken the same under advisement, now again come the parties by their attorneys, and all and singular-, the matters are submitted to the court on the pleadings and proofs, and the court, after hearing all the evidence and being fully advised in the premises, doth find the issues for the defendant upon its cross-bill, and that it is entitled to the relief prayed for therein. It is therefore by the court ordered, adjudged and decreed that the plaintiff’s petition be dismissed; that it take nothing by its said writ; that the tax bill described in said petition be, and the same is, cancelled and for naught held and that the defendant go hence without day and recover of the plaintiff its costs in this behalf expended, taxed at----dollars and that it have execution therefor.”

Plaintiff filed motion for new trial which was by the court overruled and thereupon plaintiff perfected an appeal to this court.

Such facts as shall become necessary to an understanding of the issues will be set forth in connection with the discussion of the legal questions in the opinion.

It will be noted that the decree of the trial court contains a general finding of the issues in favor of defendant and it is impossible therefore to determine the exact ground or grounds upon which -the trial court based its decree. However, as to this, it is sufficient to say that the decree of the trial court should be upheld if any one of the many defenses raised should be found upon investigation to justify the judgment. One of the defenses raised by the answer is that the preliminary resolution required by section 9411, Revised Statutes 1909', was insufficient and void in that it failed to describe the work proposed to be done or the materials to be used, and made no reference-to any other paper or record containing such description.

The resolution thus challenged is as follows:

“Resolved that the hoard of aldermen of the city of Albany, Missouri, deems it necessary to pave, gutter and curb the following parts of streets in said city, to-wit: Clay street in front of and adjoining block two- and from the west side of Polk street to the east side of Smith street; Polk street in front of and adjoining block six, and from the north side of Clay street to the south side of Wood street; Smith street in front of and adjoining block five and from the north side of Clay street to the south side of Wood street; Wood street in front of and adjoining block nine and from the west side of Polk street to the east side of Smith street.
“And it is further ordered that a copy of this resolution be published in the Albany Ledger and the Albany Capital, for two consecutive weeks.”

Section 9411, Revised Statutes 1909, provides: “When the board.of aldermen shall deem it necessary to pave, macadamize, gutter, curb ... or otherwise improve any street, avenue, alley . . . within the limits of the city, for which a special tax is to be levied as herein provided, the board of aldermen shall, by resolution, declare such work or improvements necessary to be done, and cause such resolution to be published in some newspaper published in the city, for two consecutive weeks; and if a majority of the. resident owners of the property liable to taxation therefor shall not, within ten days from the date of the last insertion of said resolution, file with the city clerk their protest against such improvements, then the board of aldermen shall have power to cause such improvements to be made, and to contract therefor, and to levy the tax as herein provided,” etc.

It will be noticed that the resolution above provided for is a matter of much importance. Until such a resolution is passed, published, and a majority of certain interested property owners to be affected, fail, within a given time, to protest against the same, the board of aldermen has no power to cause the improvement to be made. The evident purpose of sueh a resolution and its publication is to give notice to the specified interested property holders that they may exercise their right of protest if they so desire. And to give them notice of what? Notice that the board, of aldermen thinks it necessary that an indefinite something should be done? Clearly not. Such an interpretation would to a large extent nullify one of the vital provisions of the statute, viz., the right of certain interested property owners to protest. The right of protest would be of little use if the person having the right to protest had to first make a guess as to the kind and character of the work and material to be used. The above statute provides that the board of aldermen “shall by resolution declare such work or improvements necessary to be done.” What work or improvement? Certainly that work or improvement which is in fact finally done. And it is difficult to conceive how the work or improvements which are in fact finally done could be declared necessary to be done unless the resolution names or describes the work or improvement which is in final contemplation. And since the statute provides for the right of protest it is clearly within the intendment of the statute that the resolution should name or describe the work and material with sufficient definiteness to enable the person given the right of protest to determine with reasonable accuracy what effect the proposed improvement will have upon the public need and his private interest. Such information should, therefore, be either imparted by the resolution- itself or the resolution should make reference to- other papers such as plans or specifications which contain the required information.

The point here involved has been many times passed upon by the different courts of appeal in this State. In the case of City of Kirksville ex rel. v. Coleman, 103 Mo. App. 215, the Kansas City Court of Appeals speaking through Eimson, J., very ably and correctly discusses the proposition in the following language:

“One of the principal objects and purposes of such resolution is that, by its publication, the property owners affected may be advised of what is contemplated so that they have an opportunity to arrest the proceedings by a majority protest against it. Manifestly, when the improvement is such that it may be done in various ways or be composed of one of many kinds of material, substantially affecting the quality or cost of the work, the council should state in such resolution in what manner it is proposed to improve the street. In the resolution now under consideration, it was declared that ‘it is deemed by said council necessary to improve Brown avenue from Jefferson street south to Michigan street by grading, paving, guttering, curbing and terracing the said avenue.’ There is in this no mention, directly or indirectly, of the kind of paving.. That street pavement consists of a variety of material of widely different cost as well as quality, is a fact of such general knowledge that the courts will take judicial notice of it. And so, too, that various opinions are entertained as to the value, or expediency of the different kinds. This is evidenced by sharp contests which are frequently waged by property owners asserting their choice of material, either as to what is best quality, or what can best be afforded. If a city council is to be permitted to acquire the power to improve a street by use of the very general word ‘pave,’ then they .have a wide range within which to move and the action they finally take may be against the will and wish of the property holders which the law says shall govern. The owners of abutting property may very much desire that the street be paved with certain material and they' may be unalterably opposed to other kinds. In such case, under a resolution couched in the general language of this one, they would be compelled to protest against any pavement, or else give the council a carte blanche to use any material, at any price, it might choose. .The property owner ought not to be put to such dilemma. The resolution should inform the citizen, substantially, of the kind and character of improvement, to the end that he may exercise his election of withholding the power, as contemplated by the statute.”

The Kirksville ease has been consistently followed by the Kansas City Court of Appeals in the following cases: The Barber Asphalt Paving Co. v. O’Brien, 128 Mo. App. 267; Coulter v. Phoenix Brick & Construction Co., 131 Mo. App. 230 (involving the validity of a tax bill of the same series as the one in the case at bar); and by the Springfield Court of Appeals in the following cases: City of Poplar Bluff v. Bacon, 144 Mo. App. 476; Webb City ex rel. v. Aylor, 163 Mo. App. 155; Custer v. Springfield, 167 Mo. App. 354; Schulte v. Currey, 173 Mo. App. 578.

We are aware that the St. Louis Court of Appeals in the recent case of Delmar Inv. Co. v. Lewis, 180 Mo. App. 22, reached a conclusion contrary to the conclusion herein reached and in conflict with the foregoing decisions of the Kansas City and Springfield Courts of Appeal. In the case of Delmar Inv. Co. v. Lewis, supra, the St. Louis Court of Appeals expresses the opinion that the opinion of this court in the case of Gist v. Rackliffe-Gibson Construction Company, 224 Mo. 369, has left in doubt the correctness of the decision of the Kansas City Court of Appeals in the case of City of. Kirksville ex rel. v. Coleman, supra. We are of the opinion that the Gist case in no way conflicts with the ease of Kirksville v. Coleman, supra. It is apparent from a reading of the two cases that the respective charter provisions on the points discussed were so different as that the discussion of the one would furnish no guide or authority for the discussion of the other. That this is true is clearly shown by the statement by Lamm, J., the writer of the opinion, in the following language: “The charter scheme held in judgment in Kirksville v. Coleman, 103 Mo. App. 215, differed in essentials from the one under consideration. We are asked to overrule that case or to disapprove its reasoning. We shall do neither because to do so would be obiter

After a careful consideration of the subject and the briefs of learned counsel for both parties, we have come to the conclusion that the preliminary resolution was fatally defective and that the tax bill by reason thereof is void. Since the conclusion above reached furnishes sufficient ground upon which to uphold the judgment of the circuit court, it becomes unnecessary to discuss other defenses which may or may not have justified in whole or in part the decree entered by the trial court.

The judgment is affirmed.

Boy, G., dissents.

PER CURIAM.

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

All the judges concur.


source: Caselaw Access Project

author: WOODSON, P. J.

license: Public Domain

text:
    REBECCA LOTH et al., Appellants, v. CITY OF ST. LOUIS et al.
    Division One,
    April 13, 1914.
    1. STREET IMPROVEMENT: Reasons for Overriding Remonstrance. Where the charter provides that, in case a remonstrance to the street improvement signed by the owners of of the major part of the area of the land made taxable for the improvement is timely filed with the Board of Public Improvements, the hoard shall consider such remonstrance, and if the board shall nevertheless, by a two-thirds vote, approve the improvement, they shall cause an ordinance to be prepared and report the same, ‘with the reasons for their action,” to the Municipal Assembly, the board need give no. other “reason” for their action than that “the public interests demand this improvement.” No better reason could be assigned.
    2. -: Inequality of Assessment: Unconstitutional Charter Provision. For the reasons stated in Gilsonite Co. v. St. Louis Fair Association, 231 Mo. 589, the provision of the charter of St. Louis that the area to be taxed with the cost of a street improvement shall be ascertained by drawing a line midway between the street to be improved and the next parallel or converging street on each side, except that, if the property adjoining the street to be improved is divided into lots, the district line shall be so drawn as to include the entire depth of all lots fronting on the street to be improved, is not invalid, as violating the due process of law or as denying the equal protection of the laws guaranteed by the State or Federal Constitution, even though, in the exceptional case, there be no parallel or converging street to the one to be improved, and the lots on one side are 1250 feet deep and those on the other are only 150 feet, and the assessments of benefits and costs, according to that charter rule, would work marked inequality per front foot.
    Appeal from St. Louis City Circuit Court . — Hon. W. B. Homer, Judge.

    Affirmed.

      David Goldsmith for appellants.
    (1) The ordinance for the reconstruction of the Old Manchester Road was invalid, because the requirements of the charter of the city of St. Louis were not complied with in the enactment of the ordinance, in that no valid or sufficient reason for the ordinance in opposition to the majority remonstrance, was assigned by the Board of Public Improvements. Charter of St. Louis, art. 6, sec. 14; State ex rel. v. St. Louis, 161 Mo.. 378; Sedalia v. Scott, 104 Mo. App. 604; Tobacco Co. v. Railroad, 174 S. W. 553; State ex rel. v. Birch, 186 Mo. 219; State v. Butler, 178 Mo. 314; 1 Page & Jones on Taxation by Assessment, sec. 229; Norwood v. Baker, 172 TJ. S. 269'. In fact that reason was an illegal reason. -Mayor v. Moore, 6 H. & J. (Mid.) 375'; Burns v. Mayor, 48 Md. 198; Mayor v. Hanson, 61 Md. 462. (2) The provisions of the charter of the city of St. Louis for local assessments for street improvements violate the Constitution of this State and the Federal Constitution, (a) because of the gross inequalities resulting from the charter provisions. People v. Salem, 20' Mich. 474; Hyattsville v. Smith, 105' Md. 322; Davidson v. New Orleans, 96 H. S. 108; Hagar v. Beclamation District, 111 U. S. 708; Independence v. Hates, 110 Mo. 382; Fulkerson v. Bristol, 105 Ya. 561; Preston v. Eoberts, 12 Bush, 585; State v. District Court, 33 Minn. 245; Allen v. Drew, 44 Yt. 174. (b) Because those provisions constitute a denial of the equal protection of the law, contrary to the Fourteenth Amendment to the Federal Constitution, and also constitute special legislation contrary to article 4, section 53, and article 10, section 3, of the Constitution of this State. In re Flukes, 157 Mo. 132; Conolly v. Pipe Co., 184 U. S. 560; Eailroad v. Ellis, 165 TJ. S. 150'.

      William E. Baird and Trumcm P. Young for respondents.
    (1) The Board of Public Improvements had the right to recommend the ordinance for passage, in spite of the remonstrance, and the reason given by it for recommending the ordinance was sufficient. It was not necessary that they should have given as their reason that the improvement would enhance the value of private property. The board could only consider the public interests. Meier v. St. Louis, 180' Mo. 408; Prior v. Buehler, 170 Mo. 439; Construction Co. v. Railroad, 206 Mo. 179; Heman v. Allen, 156 Mo. 534; Miller v. Anheuser, 2 M:o. App. 168; Sheehan v. Martin, 10 Mo. App. 285; Eyermann v. Provenchere, 15 Mo. App. 270; Joplin v. Hollingshead, 123 Mo. App. -602; Heman v. Schulte, 166 Mo. 409; Johnson v. Duer, 115 Mo. 366; Eyermann v. Blakesley, 78 Mo. 150; St. Louis v. Wright Contr. Co., 202 Mo. 462; Railroad v. Pav. Co., 197 U. S. 433; French v. Pav. Co., 181 U. S. 324. (2) The reason given by the board for rec-commending the improvement was sufficiently specific .and definite. It was not necessary for the board to set nut in detail all of the facts and circumstances surrounding the street in question, nor all of the matters necessarily considered by the board in deciding that the public interests demanded the improvement. The ■decision of the municipal authorities in such a case is -conclusive. McCormack, v. Patchin, 53 Mo. 36; Sirnp.-son v. Kansas City, 111 Mo. 237; State ex rel. v. Engelman, 106 Mo. 628; Heman v. Frank, 99 Mo. App. 348; .Skinker v. Heman, 148 Mo. 358; Johnson v. Duer, 115 ,Mo. 366; Miller v. Anheuser, 2 Mo. App. 168; Field v. Asphalt Pav. Co., 194 U. S. 624. (3) The constitutionality of the provisions of the St. Louis charter for the improvement and reconstruction of streets has .already been passed upon. Those provisions have been ■uniformly sustained. Gilsonite Co. v. Fair Assn., 231 Mo. 589; Collier Estate v. PaVi Co., 180 Mo. 362; Fruin-Bambrick Co. v. Shovel Co., 211 Mo. 524; Meier v. St. Louis, 180 Mo. 391.
   WOODSON, P. J.

This suit was instituted in the ■circuit court of the city of St. Louis by the plaintiffs to enjoin the defendants from improving Old Manchester Road between Kingshighway Boulevard and .January Avenue, in pursuance to a certain ordinance duly recommended by the Board of Public Improvements and enacted by.the Municipal Assembly of said .city, fully authorized by the charter thereof.

The trial resulted in a judgment for the defendants and a dismissal of plaintiffs’ bill. In due time and in proper form the cause was appealed to this court.

The facts of the case are practically undisputed; consequently only questions of law are here presented for determination; and judging from the record that this is a test case for the Greatest Of All Courts (on Earth in my opinion) that of the Supreme Court of the United States to finally pass upon, I will accept substantially the statement of the case made by counsel for appellants, which is as follows:

‘ ‘ The plaintiffs base ' their claim to the relief sought upon two grounds. One of these is that the provisions of the charter of the city of St. Louis were not complied with in the enactment of the ordinance, and the qther is that the provisions of the charter of the city of St. Louis for the improvement of streets are in conflict both with the Constitution of this State and the Constitution of the United States.
“With regard to the first of these two grounds the substantial facts appear from the pleadings. The charter of the city of St. Louis provides (article 6, section 14) that no ordinance for the construction or reconstruction of any street shall be passed, unless recommended by the Board of Public Improvements; that the board shall designate a day on which they will hold a public meeting to consider the improvement, and shall give two weeks ’ public notice by advertisement in the papers doing the city printing of tbe time, place and matter to be considered; that if, within fifteen days after such public meeting, the owners of the major part of the area of the land made taxable for the improvement shall file in the office of the board their written remonstrance against the proposed improvement, the board shall consider such remonstrance, and if the board shall, by a two-thirds vote, at a regular meeting, approve of the improvement, they shall cause an ordinance for the same to be prepared and report the same, with the reasons for their action, and the remonstrance, to the Municipal Assembly.
“The petition in this case alleges that the ordinance for the improvement in question was enacted in October, 1907; that prior to the enactment of the ordinance, namely, on February 8,1907, the Board of Public Improvements held a public meeting to consider the improvement; that, within fifteen days after that meeting, the owners of the major part of the area taxable for the improvements filed in the office of the Board of Public Improvements their written remonstrance against the improvement, and that the plaintiffs joined in that remonstrance, and constituted a part of the owners who filed the same; that, notwithstanding that remonstrance, the board approved of the improvement by a unanimous vote of all its members, and caused the ordinance to be prepared and reported to the Municipal Assembly, with the remonstrance, and also transmitted to the Assembly, with the draft of the ordinance, a communication which was as follows (formal parts omitted):
“ ‘Gentlemen:— .
“ ‘I have the honor to report that the Board of Public Improvements has adopted the drafts of ordinance hereinafter named, and respectfully recommends the same for passage by the Municipal Assembly.
“ ‘It is forwarded to your honorable body through' the House of Delegates, and is entitled as follows, to-wit:
“ ‘An ordinance to improve Old Manchester Road between King’s Highway Boulevard and January Avenue.
“ ‘Accompanying the above-named ordinance are written remonstrances of the owners of the major part of the property on the line of the proposed improvements, and I am instructed to say that the Board of Public Improvements, having considered said remonstrances, is nevertheless of the opinion that the’public interests demand this improvement and that it recommends the ordinance above-named for passage by a unanimous vote of all members present. ’
“The petition further alleges that this communication and the remonstrance were the only papers reported or transmitted by the board to the Municipal Assembly in connection with the ordinance, and that the board did not, except as aforesaid, at any time report to the Municipal Assembly its reason for its action approving the said improvement; and that the reason for the action of the board as stated in the aforesaid communication, namely, that the public interests demanded the improvement, was the only reason which caused the board to approve the improvement, or to prepare the ordinance, or to report the same to the Municipal Assembly.
“The petition also shows that this suit was filed before bids were taken for the improvement by the Board of Public Improvements, the members of which, together with the city of St. Louis, are made parties defendant in this case; that the Fruin-Bambrick Construction Company, who is the only other defendant besides the city of St. Louis, and the members of the board, was awarded the contract for the work, but that the original petition in this suit was served upon all of the defendants, with the exception of the Fruin-Bambrick Construction Company, before the bids were opened; that, before the contract for the work was entered into the Fruin-Bambrick Construction Company had full knowledge of the institution of this suit, and of the matters and things set forth in the petition, and that it entered into the contract with that knowledge; and that, up to the time of the filing of the amended petition, nothing had been done by the Fruin-Bambrick Construction Company in the execution of or under the contract.
“One answer was filed on behalf of the Fruin-Bambrick Construction Company and another on behalf of the remaining defendants; but both these answers are similar in substance, and they substantially admit all of the aforesaid allegations of the petition.
“With regard to the second ground upon which the plaintiff’s seek relief in this cause, it appears from the petition that the plaintiffs are the owners of a large tract of land having a front of 1350 feet on the Old Manchester Road, and also on the improvement provided for by the ordinance in question; that, prior to the report of the ordinance to the Municipal Assembly, the Board of Pubic Improvements adopted a tabular statement estimating the cost of the improvements provided for by the ordinance at $58,110'; that the total length of the improvement is 5162 feet, and that the aggregate front of all property fronting thereon on either side is over 10‘,000' feet; that the front of the tract of the plaintiffs is less than one-seventh of the aggregate frontage, but that if the improvement should be made and the cost thereof should be assessed upon the property included in the district according to a plat thereof approved by the board, the property of the plaintiffs would be assessed for the improvement to the extent of one-fourth of the total cost of the improvement. These facts also were admitted by the defendants by their respective answers, excepting that these answers allege the total length of the improvement to be 5162 feet, the aggregate frontage of the property on either side to be 8876.54 feet, and the frontage of the plaintiffs’ tract to be 1392.25 feet, or about one-sixth of the aggregate frontage. The answers specifically admit that, if the cost for the improvement should be assessed upon the property in accordance with the plat approved by the board, the property of the plaintiffs would be assessed for the improvement to the extent of one-fourth of the total cost thereof.
“The petition herein also contains the allegations hereinafter alluded to.
“At the trial the following occurred:
“ ‘Plaintiffs, to sustain the issues upon their part,, offered and introduced the following evidence:
“ ‘Mr. Goldsmith: I desire to offer evidence to' substantiate the allegations made in the second amended petition with respect to the unconstitutionality of the charter provision, being the allegations beginning at the top of page eight of the petition and continuing from there on and including next to the last paragraph on page eleven. Which said allegations are in words and figures as follows:
“ ‘ “Plaintiffs, further show and state that the aforesaid ordinance, after, providing for the aforesaid improvement, further provides that the total cost of the work and all proper connections and intersections required should be ascertained, levied and assessed as a special tax upon all the property within a district defined and bounded by section 14 of article 6 of the charter of the city of St. Louis; that said section 14 of article 6 of said charter provides that all districts for the assessment of special taxes for the improvement of streets shall be established as follows:
“ ‘ “ ‘A line shall be drawn midway between the street to be improved and the next parallel or converging street on each side of the street to be improved, which line shall be the boundary of the district, except as hereinafter provided, namely: If the property adjoining the street to be improved is divided into lots, the district line shall be so drawn as to include the entire depth of all lots fronting on the street to be improved. If the line drawn midway as above described would divide any lot lengthwise or approximately lengthwise, and the average distance from the midway line so drawn to the nearer boundary line of the lot is less than twenty-five feet, the district line shall in such case diverge to and follow the said nearer boundary line. If there is no parallel or converging street on either side of the street improved, the district lines shall be drawn three hundred feet from and parallel to the street to be improved; but if there be a parallel or converging street on one side of the street to be improved to fix and locate the district line, then the district line on the other side shall be drawn parallel to the street to be improved and at the average distance of the opposite district line so fixed and located/
“ ‘ “Plaintiffs further state that the Columbia Bottom Road is a street in said city of St. Louis; that there is not, and at the time of the adoption of the aforesaid provisions of said charter there was not, and that at no time since the time of said adoption has there been, in said city, any street parallel or converging to said Columbia Bottom Road; that there are, and at the time of the adoption of the aforesaid provisions of said charter there were, adjacent to the western limit of said city of St. Louis, some streets on the east thereof, but no parallel or converging street between it and said western limit of said city, and there was and is in every case a parallel or converging street on the eastern side of the street; that each and every of the aforesaid streets as to which this is or was at said time the case, is, and at said time was, less than five hundred feet eastwardly of said western limit of said city, and that some of said streets are much less, to-wit, less than two hundred and fifty feet, eastwardly of said western limit of said city.
“ ‘ “That the aforesaid Columbia Bottom Road is the only street in said City of St. Louis, and at the time of the adoption of the aforesaid provisions of said charter was the only street in said city, having no parallel or converging street on either side thereof; and that the aforesaid streets adjacent to the western limit of said city of St. Louis are, and at the time of the adoption of the aforesaid provisions of said charter were, the only streets of said city having a parallel or converging street on one side thereof, hnt not on the other; that the exception made as aforesaid by said provisions of said charter with respect to the improvement of streets having no parallel or converging street on either side thereof, and also the aforesaid exception made by the aforesaid provisions of said charter with respect to the improvement of a street having a parallel or converging street on the one side, but not on the other are, and at the time of the adoption of said provisions of said charter were, arbitrary, unjust and oppressive, and constituted and still constitute class legislation.
“ ‘ “That the reason for the aforesaid exceptions applies and at the time of the adoption of said provisions of said charter applied to many other streets of said city than those above specified, and to the land fronting upon such other streets, and so apply, and at said, time applied, not only with the same force but moreover with far greater force and cogency than to the aforesaid Columbia Bottom Road and said streets adjacent to said western limit of said city.
“ ‘ “That the distance between said Columbia Bottom Road and the limits of the city of St. Louis on either side thereof is small, being not over six hundred feet, and the distance between the aforesaid streets adjacent thereto is also small, being in no case as much as five hundred feet; that there are, and at the time of the adoption of said provisions of said charter there were, many other unimproved streets in said city having no parallel or converging' street within a distance of two thousand feet of either side thereof, and also many unimproved streets having a parallel or converging street within three hundred feet on the one side, but not within five thousand feet on the other side; and also many other streets which for a part of their course have, and at the time of the adoption of said provisions of said charter had, a parallel or converging street on one side, which was less than three hundred feet dis-taut, but for tbe remainder of their course, have, and at said time had, no parallel or converging street within a distance of five thousand feet; that in consequence of the said conditions existing at the time of the adoption of said provisions of said charter, and still existing, the aforesaid provisions require assessments for thé improvement of streets which are grossly disproportionate, arbitrary and unfair, and confiscatory of property against which they are made, and which place upon a small part of the property benefited by the improvement of a street nearly the entire cost of the improvement of the street; and that this was the case at the time of, and has been the case ever since the time of, the adoption of the aforesaid provisions of said charter, and that this is the case with respect to the improvement provided for by said ordinance and the aforesaid land of these plaintiffs; that the property owned by these plaintiffs as aforesaid is a large unsubdivided tract of land containing over twenty-two acres, and having a depth of over twelve hundred and fifty feet between the north line of said Old Manchester Road on which it fronts and the next parallel or converging street northwardly of said Old Manchester Road, to-wit, Bischoff Avenue, while for the greater part of the remainder of said Old Manchester Road between said Kingshighway Boulevard and said January Avenue, the distance between said Old Manchester Road and the next parallel or converging street on either side thereof, is less than three hundred feet, and for a great part of said remainder said distance is less than one hundred and fifty feet.
“ ‘ “And plaintiffs further state that the aforesaid provisions of said charter of said city of St. Louis are illegal and contrary to the provisions of the Fourteenth Amendment of the Constitution of the United States in that they provide for the taking of property without due process of law, and further in that they deny to persons within the jurisdiction of the State of Missouri, and also to persons within the jurisdiction of the said.city of St. Louis, and particularly to such persons owning land in said city, including these plaintiffs, the equal protection of the law; and that the same are also contrary to and in conflict with the provisions of the Constitution of the State of Missouri, and particularly section 10 of article 2 thereof, and section 30 of said article 2, and section 21 of said article 2, and furthermore, section 23 of article 9 of said Constitution of said State.’ ”
“This evidence was objected to by all the defendants other than the Fruin-Bambrick Construction Company as incompetent and irrelevant; said objection was sustained by the court and the plaintiffs duly excepted to said action of the court in sustaining said objection.
“Furthermore, at the trial, the plaintiffs again tried to establish the allegations of the petition, to which we have referred, by the testimony of Joseph Pasquier, Assessor of Special Taxes of the city of St. Louis for twenty-seven years, but this evidence was excluded on objection on the ground that the constitutionality of the charter provisions had been determined by this court, and that it was a closed question.
“From the answers of all the defendants in this cause it appears that the city of St. Louis owned a large tract of land which was partly situated in the assessment district, and on which the Female Hospital of the city of St. Louis was located; and that of the estimated total cost of the street improvement, namely, $58,110, $9489 was chargeable against that property of the city of St. Louis, so that the part of the city property within the assessment district must have been about one-sixth of the entire district. At the trial it was further admitted that this tract belonged to the city at the time of the enactment of the ordinance.’.’

I. As previously indicated, the questions of fact have been eliminated and there are but two legal propositions presented for determination.

The first is thus stated by counsel for appellants:

The ordinance for the reconstruction of Old Manchester Road was invalid because the requirements of the charter of the city of St. Louis were not complied with in the enactment of the ordinance, in that no valid or sufficient reason for the ordinance, in opposition to thé majority remonstrance, was assigned by the Board of Public Improvements. ’ ’

By this contention counsel insist that the reason assigned by the Board of Public Improvements, for overriding the protest of the majority remonstrance, is not sufficient to satisfy the charter provision mentioned.

By consulting the statement of the case made by counsel for appellant, it will be seen that the Board of Public Improvements is in no manner hampered' or restricted as to the reasons to be assigned for their refusal to follow the protest of the property owners. It simply provides that in case the board does not agree to the protest, then they may, notwithstanding the protest, recommend the passage of the ordinance, “with the reasons for their action.”

The word “reason” as applied to business and municipal matters, has as many meanings as there are men-engaged in business and governmental officers; and yhat would be a good or valid reason for the action of one man might be nonsense to another.

Returning to the case in hand: The Board of Phblic Improvements assigned the following reason for overriding or1 repudiating the protest filed by the property owners, viz.:

“The Board of Public Improvements having considered said remonstrance, is nevertheless of the opinion that the public interests demand this improvement, and that it recommends the ordinance above mentioned for passage by a unanimous vote of all members present. ’ ’

It seems to me that in dealing with public matters entrusted to public officers, that the reason assigned by the board was about the best that could have been made, and referred to the council. In my opinion no other reason should have entered into the minds of, or should have influenced the action of the board, except the public good; and the mere fact that they stated that reason in plain and terse language should not detract from the force and validity thereof.

In my opinion, there is no merit whatever in this contention of counsel for appellant; and it should be and is disallowed.

II. The second proposition presented for determination by counsel for appellants is couched in this language:

.“Because those provisions (of the charter) constitute a denial of the equal protection of the law, contrary to the Fourteenth Amendment to the Federal Constitution, and also constitute special legislation contrary to article 4, section 53, and article 10, section 3, of the Constitution of this State.

These propositions were fully presented by same counsel here in the case of Gilsonite Co. v. St. Louis Fair Association, 231 Mo. 589, and were by a majority of the members of this court decided against the position there and here taken by counsel for appellant.

"While I do not contend that there is any rule by, which exact justice and equality of taxation can be measured out to each and all, in the assessment of special or general taxes, yet I am firmly of the opinion that no court should lend its assent to the great inequality, unjust and oppressive results that are characterized by the ruling of this court in the cases of Gilsonite Co. v. St. Louis Fair Association, supra; Corrigan v. Kansas City, 211 Mo. 608; and in the case at bar.

While I have not changed my views of the law as expressed in those cases, yet I feel that no good can come from continual dissents; they have a tendency to disturb, if not to unsettle the law of the State, which should be as clear and placid as the sea without a ripple.

Entertaining these views I am of the opinion that the judgment of the circuit court should be affirmed; and it is so ordered.

Graves, J., concurs; Lamm, J., concurs in everything except what is said regarding the Corrigan and Gilsonite cases; Bond, J., not sitting.


author: BOND, J.

text:
    J. McD. TRIMBLE et al. v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant.
    Division One,
    April 13, 1914.
    SERVICES RENDERED: Contractual Relations: Quantum Meruit. Where the petition charged an agreement by defendant to assume and pay the debts and expenses incurred by a committee which had undertaken to reorganize and consolidate several railroad companies, and there was substantial evidence supporting the finding of the trial judge that such agreement was made, that the services rendered by plaintiffs in and about such reorganization was a part of the expense, and that those services were reasonably worth the amount for which judgment was rendered, said judgment will be affirmed on appeal.
    Appeal from Jackson Circuit Court. — How. J. H. Slover, Judge.
    Affirmed.

      S. W. Moore, Cyrus Crane and James M. Souby for appellant.
    The Southern Company is not liable for the debts of the Gulf Company or of the Belt Company upon the theory of a consolidation of these companies. R. S. 1909, secs. 1059, 1061; Harriman v. Securities Co., 197 U. S. 244; State ex rel. v. Leseur, 145 Mo. 322; Railroad y. Missouri, 152 U. S. 301; Burge v. Railroad, 100 Mo. App. 464; Dicky v. Railroad, 122 Mo. 223; Holton v. Railroad, 25 Mo. App. 322; Hagemann v. Railroad, 202 Mo. 249; Pullman Co. y. Railroad, 115 U. S. 587; Peterson v. Railroad, 205 U. S. 364; Hoard v. Railroad, 123 U. S. 222; Jones v. Electric Co., 135 Fed. 153; Lee v. Railroad, 150 Fed. 775; Jessup v. Railroad, 36 Fed. 735; Loan and Trust Co. v. Railroad, 103 Fed. 110; Patón y. Railroad, 85 Fed. 838; Armour v. Bennetts’ Sons, 123 Fed. 56; Adams v. Railroad, 24 So. 211; Telephone Co. v. Telephone Co., 30 So. 725; Railroad y. Cochran, 43 Kan. 225; Commonwealth v. Bridge Co., 64 Atl. 909; Ulmer v. Railroad, 57 Atl. 1004; Bank y. Construction Co., 25 S. E. 326; Railroad v. Ashling, 43 N. E. 373; Foundry Works v. Water Co., 405 Wis. 48. (2) There is no express promise contained in the reorganization plan and agreement for the payment of the floating debt of the constituent companies upon which the plaintiffs are entitled to maintain an action to collect their judgments'against the Gulf Company and the Belt Company. St. Louis v. Contracting Co., 202 Mo. 451; Manufacturing Co. y. Clark, 208 Mo. 89; Howsman y. Water Co., 119 Mo. 304; Bank y. Grand Lodge, 98 U. S. 123; Keller y. Ashford, 133 U. S. 610; Insurance Co. v. Water Co., 33 Sup. Ct. 32; Trust Co. v. Water Co., 132 Fed. 702; Sayward y. Dexter, 72 Fed. 758; Bank v. Railroad, 76 Fed. 130; Mcllvaine v. Lumber Co., 54 S. E. 473; Manufacturing Co. v. Water Co., 37 So. 980; Moyer v. Railroad, 132 Ind. 88; Freeman v. Pennsylvania Co., 173 Pa. St. 274; Armour & Co. y. Construction Co., 78 Pac. 1106; Rochester D. G. Co. v. Fahy, 97 N. T. Supp. 1013'. (3) The Federal Court, in the foreclosure decrees in the cases of the Gulf Company and the Belt Company, retained jurisdiction to hear and determine such claims as those of the plaintiffs. Such retained jurisdiction was exclusive and this court is without jurisdiction to hear and determine this action. Julian v. Trust Co., 193 U. S. 93; Cotton Mills v. Manufacturing Co., 198 U. S. 188; Trust Co. v. Gnilf Co., 12.0 Fed. 398; Trust Co. v. Gulf Co., 110 Fed. 10; Railroad v. Adelbert College, .20'8 U. S. 38; Ex parte Toung, 209 U. S. 123.

      John A. Eaton for respondents.
    (1) There was a consolidation and consequent liability of the constituent company in fact and in law for. the payment of the judgments of Trimble & Braley rendered for services. Improvement Co. v. Steel Co., 201 Fed. 811; Railroad v. Boyd, 228 U. S. 505,177 Fed. 804; Trust Co. v. Railroad, 174 U. S. 674; Railroad v. Howard, 7 Wall. 392; Trust Co. v. Railroad, 171 Fed. 43; Railroad v. Ashling, 160' 111. 373; Sec. 1059, R, S. 1899; Elliott on Railroads, sec. 337; Leavenworth County v. Railroad, 134 U. S. 696; Shields v. Ohio, 95 U. S. 359; Railroad v. Missouri, 152 U. S, 301; Evans v. Transit Co., 106 Mo. 594. (2) The Southern Company is liable by reason of its contractual obligation to pay the judgments rendered in favor of Trimble & Braley against the Gulf and Belt Companies.- (a) Because of the assumption of the obligation, (b) Because it is a direct obligation against the Southern or consolidated Company. Trimble v. Railroad, 180 Mo. 574; Trimble v. Railroad, 199 Mo. 44; Trimble v. Railroad, 201 Mo. 372; Smith v. Railroad, 33 Pac. (Cal.) 53; Ellis v. Harrison, 104 Mo. 270; Howsmon v. Water Co., 119' Mo. 304.

      STATEMENT.
    The plaintiff, a firm of attorneys, sned the defendant railway, as the successors in title and obligation of two other railways, for the amount of two respective judgments aggregating $11,111.68, recovered by plaintiffs against said railways for personal services alleged to have been performed in and about the matter of carrying out a consolidation of the two railways according to the plan of a reorganizing committee formed for that purpose.
    The roads which were acquired, in pursuance of a contract and plan adopted for that purpose, will be termed for brevity the “Gulf Company” and the “Belt Company;” The reorganizing committee caused the incorporation of the defendant, the Kansas City Southern Railway Company, to acquire the property and corporate control of the two former. The process by which the defendant accomplished this was through a receivership and foreclosure of the Gulf and Belt companies at the instance of the holders of their bonds secured by mortgage, and the foreclosure of the stocks and bonds of the Belt Company, and a subsequent foreclosure of a mortgage therein.
    After the appointment of a receiver for the Gulf Company by the Federal Court, a committee of reorganization at Philadelphia, which had succeeded the New York committee, proposed and published a contract and plan to reorganize the Gulf Company and- its associated companies, which plan as modified on November 7, 1899, was carried out. This plan was adr dressed to the holders of the bonds and stocks of the Gulf Company et al., and was designed for the purchase of the Gulf Company under a foreclosure of the mortgages thereon; and then, to transfer the property to a corporation to be organized (the defendant, the Kansas City Southern Railway Company), which new company was expected to receive the stocks and bonds of two other corporations allied to the Gulf Company and to issue in payment thereof, new securities to be disposed of as thereafter stated.
    By this means it was contemplated: (1) That the new company would own the property of tñe Gulf Company and the stock and bonds of the Belt Company, and' the bonds of its constituent companies, and the bonds and stocks of the Port Arthur C. & D. Company, and thereby unite the corporate control of “all the properties.” The bonds and stock thus acquired were to be pledged as security for the new first mortgage to be executed by the purchasing company. (2) The attainment of efficiency, economy and control of the property; (3) That in case of the failure to acquire the two terminal properties, then the purchase of others at Kansas City and Port Arthur and a corresponding reduction of the new securities.
    The plan further set out the conditions of participation by the persons invited to co-operate therein, and a schedule of the securities to be issued, and the uses and payments to which they were to be put:
    “ (a) Bonds to the extent of $3,802,500 are to be put in the treasury for future requirements.

    “(b) The sum of $5,900,000 arising from a sale of $3,000,000 first mortgage bonds and $3,000,000 preferred stock, and from payments of ten dollars per share by participating stockholders, are to be reserved for the cash requirements of the new company, which includes such payments as may be made upon the 'floating debt, not to exceed the sum of $475,000.
    “(c) All the balance of the securities to be appropriated specifically in exchange for securities of the old companies. ’ ’
    Following the foregoing features was the reorganization agreement, taken as a part thereof, but stipulating that “no estimate, statement, explanation or suggestion contained” in either “should he accepted as a representative warranty or agreement. ’ ’
    This plan and contract, and also the foreclosure decrees and sales and purchases of the property, and the conveyance made thereunder to the defendant, and a full report by its vice-president of the accomplishment of the plan to the New York Board of Trade, were introduced in evidence. Other documents were introduced in the evidence and if necessary will be cited in the opinion.
    The two plaintiffs were called to testify and give a history of the transactions and their connection therewith to the effect that the services rendered by them to the Gulf and Belt' companies and upon which their judgments were based, were performed with the knowledge, consent and approval of the reorganization committee, and through correspondence with its attorney. That the legal steps taken by them were necessary and proper to the accomplishment of the contract and plan of the reorganizing committee, whereby the defendant secured ownership and control of the railway between Kansas City, Missouri, and Port Arthur, Texas, with suitable terminals at’both places. The contract and plan of the reorganizing committee expressly provided that the new company (which the evidence showed was the defendant) should assume and pay all of the expenses incurred by the reorganizó ing committee in the accomplishment of the scheme incurred for the unification of the property described in its plan and contract.
    The case was submitted to the trial court, upon the waiver of a jury, who subsequently rendered a judgment for planitiff, July 6, 1910', in the sum of $16,763.14, with the following memorandum of his reasons.
    “Inasmuch as the services sued for in this case were rendered in accomplishing the scheme from which the reorganization or consolidation in fact was effected, it became and was a‘part of the expense attending such reorganization, and for that reason, if for no other, these plaintiffs should recover in this case regardless of the question whether the defendant company was liable or is liable for the following obligations of the constituent companies. Judgment for the plaintiffs as prayed for.”
    From that judgment defendant, after the overruling of its motion for a new trial, appealed to this court.
   OPINION.

BOND, J.

(After stating the facts as above).— In the view we take of this case it will be unnecessary to rule upon the chief conteiitions of appellant’s counsel, to-wit: (1) That the acquisition by appellant of the property of the Gulf Company and ultimately of the property of the Belt Company, and the purchase by appellant of the stocks and bonds of the Port Arthur Company, were not a statutory consolidation under section 3077 of the present revision; (2) that the degrees of foreclosure and conveyance to appellant thereunder, or the participancy of the individual plaintiffs in the scheme of reorganization and the acceptance of new securities for old ones owned by them, are conclusive against the right to maintain the present action in their firm name. For neither of these contentions, nor any other urged for appellant, touch the question of the right of the plaintiffs to recover from defendant, under the positive terms of the reorganization contract and.plan, whereby the expenses of the reorganizing committee which were incurred in achieving the purpose for which it was formed and to carry out the plan which it had in charge, were to be borne and assumed by the new company, the defendant.

As to their right to recover on this theory the plaintiffs petition set forth in its first count the follow ing allegations:

“Prom time to time between the--day of April, 1899, and the-day of March, 1900', the plaintiffs at the special instance and request of the Kansas City, Pittsburg & Gulf Railroad Company, and at the special instance and request, and with the knowledge and consent of the said New York and Philadelphia committees, rendered and performed valuable professional services as attorneys at law in and about the matter of carrying out and consummating the said consolidation of the said properties and the said reorganization of the said securities, which services were of the reasonable value of ten thousand dollars or more.”

These allegations show that, among other grounds, plaintiffs sought a recovery in this case, not upon the theory of a fraudulent acquisition of the property of their debtors by defendant, but upon the allegations that the services rendered by them were within the direct contractual obligations undertaken by defendant when it obtained the ownership and control of the property through the efforts of the reorganizing committee ánd in accordance with its plan, to pay for all services rendered to that committee or expenses incurred by it in carrying out the plan for acquiring the property.

The oral testimony of the two plaintiffs and the letters received by them from their attorney, tended to prove that the judgments sued on were based upon professional work and expenses rendered and incurred by them in aiding the object of the reorganization committee and in furtherance of its-plan for the unification of the property and corporate control of the several railroads.

.The trial court gave credence to that testimony and grounded its judgment thereon. If that testimony was true, it brought the plaintiffs within contractual relations with defendant (in-view of the agreement by defendant to assume and pay the debts and expenses incurred by the committee of reorganization) and entitled plaintiffs to the judgment rendered in this case. It is wholly immaterial whether plaintiffs could have recovered upon that feature of the plan of the reorganizing committee, which appropriated $475,000| for the payment of the floating indebtedness of the companies to be absorbed. For whether that was such a contract for their benefit, as plaintiffs could legally invoke, need not be decided. It is sufficient to authorize the affirmance of the judgment below, that it should appear, as the record shows, that the amounts recovered were reasonable and fell within the scope of the allegations of the petition and were supported by substantial evidence. The character of the services rendered and the reasonableness of the compensation, were before this court on former appeals. [Trimble v. Railroad, 180 Mo. 574; Trimble v. Railroad, 199 Mo. 44; Trimble v. Railroad, 201 Mo. 372.]

The learned trial court correctly conceived the vital question of law in this case. There was material evidence supporting his finding of fact and the judgment is affirmed.

All concur.


author: GRAVES, J. WALKER, J.

text:
    IN MATTER OF ASSESSMENT OF COLLATERAL INHERITANCE TAX AGAINST ESTATE OF JAMES QUIRK, Deceased.
    In Banc,
    April 13, 1914.
    1. COLLATERAL INHERITANCE TAX: Property Devised to Charity or Education: Life Estate. Under the statute (See. 309, R. S. 1909) Missouri property devised for educational and religious purposes within this State is not chargeable with a collateral inheritance tax. And real estate devised to testator’s sister for life, with remainder for such purposes, the sister having died before administration, is devised to such uses.
    2. -; -; charities Outside of State. The statute does not exempt from a collateral inheritance tax property devised to educational or religious organizations located in another State for educational or religious uses in such State. [WALKER, WOODSON and BOND, JJ., dissenting.]
    3. -: Statutory Construction: Intent. The basic principle of all statutory construction is the legislative intent. This is true whether the intent is drawn from the words of the act or extrinsic aids are used to find it. If there is an ambiguity or uncertainty, then extrinsic aids may be invoked to ascertain the meaning, and these are various.
    4. -: -:--: In the Light of Existing Law: Extra-Territorial Operation. The Legislature in enacting a law is presumed to do so in reliance upon the assumption that it will be interpreted in the light of existing law; and one of the fundamental principles of the existing law at the time the Collateral Inheritance Tax Law excepted charities from taxation, was that a statute would prima-facie be declared to be operative only as to persons and things within the territorial jurisdiction of the law-making body enacting it; and when that rule is applied to that exception in the statute, it must be held that property devised for charitable uses outside the State is not exempt from the tax.

      Held, by WALKER, J., dissenting, with whom WOODSON and BOND, JJ., concur, that it was the purpose of exemption from the tax which the Legislature had in mind, and not the location of the benevolence to be aided; and the statute is clear, and exempts from the tax property granted or given for educational, charitable or religious purposes, in total disregard of their location, and the courts are, not authorized to read into it a clause limiting it to charities located in this State.
    Appeal* from Nodaway Circuit Court. — Hon. William G. Ellison, Judge.
    Reversed and remanded.

      John T. Barker, Attorney-Gfeneral, George Pat Wright and F. C. Donnell for appellants.
    (1) A fundamental principle of statutory construction is that the real intention of the Legislature must prevail. Black on Interpretation of Laws (2 Ed.), p. 180; Verdin v. St. Louis, 131 Mo. 26; Church of Holy Trinity v. U. S., 143 U. S. 457; Perry y. Straw-bridge, 209 Mjo. 621; Decker v. Diemer, 229 Mo. 296; State ex rel. v. Walker, 240 Mo. 708. (2) In the construction of a statute the real intention of the Legislature is ascertained by the light of the common law and with reference to its cognate or allied principles. Johnson v. Fluetsch, 176 Mo. 452. (-3) The common-law principles of construction applicable to the case at bar are: First, the Legislature will be presumed to have acted ‘ ‘ consonant to reason and good discretion. ’ ’ Second, the Legislature will be presumed, in enacting a statute, to have done so with a knowledge of existing law and to have passed the statute relying upon and knowing that it will be interpreted by the rules of existing law. Three of the cardinal principles which are existing now and were at the enactment of Sec. 309, R. S. 1909, are: (a) That a statute is primo-facie confined in its operation to persons within the territorial jurisdiction of the Legislature which enacted it. State ex rel. v. Wright, 251 Mo. 343. (b) That general words are not to be so construed as to alter the previous policy of the law unless no sense or meaning can be put upon them consistent with the intention of preserving the existing policy unchanged, (c) That in order for legislation to relieve any species of property from its proportion of taxation such legislation should be so clear that there can be neither reasonable doubt nor controversy about its terms. Biesterer v. Land Co., 160 Mo. 141; Beale on Cardinal Buies of Interpretation, p. 232; State ex rel. v. Wright, 251 Mo. 343; Jeffrys v. Boosey, 4 H. of L. Cas. 815; Black on Interpretation of Laws (2 Ed.), p. 107; Sutherland on Statutory Construction, sec. 513, and p. 1004; 12 Am & Eng. Ency. Law (2 Ed.), 285, 292; Minot v. Leman, 20 Beav. 269; State ex rel. v. Johnston, 214 Mo. 656; State ex rel. v. Casey, 210! Mo. 235; Ford v. Land Co., 164 U. S. 662; Fitterer v. Crawford, 157 Mo. 51. (4) Guided by these principles Sec. 309, B. S. 1909, should be so construed as to exempt from taxation only such charitable, religious or educational purposes as áre to be carried out in tbe State' of Missouri, for had it been the intention of the Legislature to exempt foreign charities as well as domestic the statute would have so stated. Eiesterer v. Land Co., 160 Mo. 154.; In re Prime, 136 N. Y. 347; Eoss v. Kentucky, 111 Mo. 18; In re Speed, 216 111. 23; Board of Ed. v. Illinois, 203 U. S. 553; University v. Hancock, 69 N. J. Eq. 470; In re Hickoks, 78- Yt. 259; Humphrey v. State, 70 Ohio, 67; Davis v. Treasurer; 208 Mass. 343; People v. Society, 87 111. 249; Carter v. Whit-comb, 74 N. H. 482; Venable v. Eailroad, 112 Mo. 103.

      Frederick N. Judson, amicus curiae.

      Ira K. Alderman and M. E. Ford for respondent.
    (1) Sec. 309, E. S., 1909, is unambiguous, hence : (a) In order to ascertain the legislative intention, the primary rule is that a statute is to receive.that meaning which the ordinary reading of its language warrants. 26 Am. & Eng. Ency. Law (2 Ed.), 598, sec. VI, 4-a (1). (b) If the language is clear and admits of but one meaning, the Legislature should be intended to mean what it has plainly expressed; and there is no room for construction. Seldon v. Hall, 21 Mo. App. 452; St. Louis, etc., E. Co. v. Clark, 53-Mo. 214; United States v. Fisher, 2 Cranch (U. S.),, 386; Swarts v. Siegel (C. C. A.), 177 Fed. 13; Johnson v. Eailroad Co. (C. C. A.), 177 Fed. 462; Wood-bury v. Berry, 18 Oh. St. 456; Tynan v. Walker, 35 Cal. 634; Bich v. Keyser, 54 Pa. St. 86; see also p. 182, ibid; U. S. v. Hartwell, 6 Wall. (U. S.) .395;. (c) The plain and sound principle is to declare tia lex scripta est, although so understood the statute leads to an absurd and mischievous result, or. to consequences not contemplated by the Legislature, for courts are not to inquire as to the motives of the Legislature, nor to depart from any meaning clearly conr .veyed in unambiguous words, because the statute, as literally understood, appears to lead to unwise consequences or to contravene public policy. Coffin v. Rich, 45 Me. 507, 71 Am. Dec. 559; United States v. Fisher, 2 Cranch, 399; Farrell Foundry v. Dart, 26 Conn. 376. (2) The rule of statutory construction of statutes purporting1 to grant exemptions from general taxation are to be strictly construed against the claimant and in favor of the government, but special tax laws are to be construed strictly against the government and most favorable to the tax payer. Dos Passos (2 Ed.), sec. 32, pp. 74 and 75; 27 Am. & Eng. Ency. Law (2 Ed.), 340', Sec. Ill; Lambart, Appellant, 88 Me. 587; Cooley, Taxation (2 Ed.), 74. (a) No authority predicated on property tax can be applicable to case at bar for the tax in question is not a property. State ex rel. v. Henderson, 160 Mo. 217. (b) A succession tax is a special tax and the rule is that special tax laws are to be considered strictly against the government and favorably to the tax payer. Lambart, Appellant, 88 Me. 587; 27 Am. & Eng.'Ency. Law, 340'; Hooper v. Bradford, 178 Mass. 96; Matter of Fayer-weather, 143 N. T. 114; Cooley, Taxation (2 Ed.), 205; Tucker v. Ferguson, 22 Wall. 527; In re Enson’s Will, 113 N. T. 174. (3') The Missouri statute is different from the statutes of all other States. Therefore the constructions put upon the statutes of other States by the courts of those States do not aid in construing our statute in this case, further than to show the courts’ adherence to the language of their statutes, and by contrast, as will be contended, aid the respondent by points or marked and material differences, and in showing that the purpose of the Missouri statute is directly met in the admitted purpose of the testator’s devise.
   GRAVES, J.

This action arose in the probate court of Nodaway county, and is one wherein it is sought to collect certain collateral inheritance taxes from the estate of James Quirk, deceased. The casé. involves the construction of the exemption clause of section 299 of article 16 of chapter 1, Revised Statutes 1899. The case in both the probate and the circuit court of Nodaway county was tried upon the following agreed statement of facts:

“AGREED STATEMENT OF FACTS.
“It is agreed by and between the parties hereto that the facts in the above cause are as follows:
“That James Quirk prior to and at the time of his death was a resident of the State of Illinois; that he died testate on the 13th day of November, 1906, seized of a three-fourths interest in fee in the following described real estate, lying, being and situated in the county of Nodaway, in the State of Missouri, to-wit: An undivided three-fourths interest in and to the north half of the southeast quarter of section ten, in township sixty-three north, of range thirty-six west of the principal meridian, in' Nodaway county, Missouri; that by the last will and testament of the said James Qhirk, dated the 18th day of November, 1902, he bequeathed and devised to Mary Quirk, his sister, also a resident at all times herein mentioned of the State of Illinois, the use, rents, income and profits of all his estate, both real and personal, including the above lands, so long as she should live; that all the remainder of his estate, including the above lands, both real and personal which should be left after the death of his said sister, Mary Quirk, and after paying the legacies therein mentioned and expenses of administration, he directed his executors, named in said will, to convert into money, and to pay the same over to the Bishop of Peoria, Illinois, the same to be used by him for the use and benefit of the Church of the Visitation of Kewanee, Illinois, and the Dominican Sisters’ School of Kewanee, Illinois, as he might deem best, and he, the said James Quirk, by Ms said last will, bequeathed the said remainder of his estate so converted into money to the said Bishop of Peoria, Illinois, in trust for such use and purposes; that on the 5th day of August, 1907, the said Mary Quirk died; that on the death of said Mary Quirk, all the rest and residue of the property of James Quirk, including the lands above, when converted into money by his executors, and after paying legacies and expenses of administration, passed to and vested in the Bishop of Peoria, Illinois, in trust, for the uses and benefit of the Church of the Visitation, of Kewanee, Illinois, and the Dominican Sisters’ School of Kewanee, Illinois; that on the 18th day of May, 1908, Joseph Jackson, Sr., a resident of the city of Maryville, Nodaway county, Missouri, was by the probate court of Nodaway county, Missouri, duly appointed as administrator, with will annexed, of the estate of said James Quirk, in Nodaway county, in the State of Missouri; that said Joseph Jackson, Sr., as such administrator, under the powers and terms of the will of said James Quirk, sold the lands above described for the sum of $6400'; .that the interest in the same of the said James Quirk amounted to three-fourths of said sum, or $4800; that sum was and is the fair market value of said lands; that the debts and legacies of said estate have all been paid except expenses of administration, wMch amounts to $550, and which amount said administrator now retains in his hands; that the said Joseph Jackson, Sr., as such administrator of said estate, has paid to the Bishop of Peoria, Illinois, the sum of ,$4250'.
“It is further agreed that the Bishop of Peoria is not a resident of the State of Missouri, but is a resir dent of the State of Illinois; that the Church of the Visitation and the Dominican Sisters’ School are educational, charitable and religious institutions exclusively, devoted to such purposes in the State of Illinois; that said Church of the Visitation and the Dominican Sisters’ School are located in the city of Kewanee, in the State of Illinois.
“It is further agreed that if the court decides that said bequests to said Church of the Visitation and Dominican Sisters’ School are liable to pay a collateral inheritance tax, that the amount of'such tax is $212.50, and the penalties of $55.25.”

Upon these facts the probate court found that the property was not exempt from the collateral inheritance tax, and the administrator appealed to the circuit court. The circuit court found that it was exempt, and reversed the judgment of the probate court and from that judgment the opposing parties have api pealed and invoke the judgment of this court. The case is one purely of law.

I. At'the institution of this suit the statute involved was section 299, Revised Statutes 1899. The statute has not been amended, and is now section' 309', Revised Statutes 1909. The statute so far as material reads:

“All property which shall pass by will, or by the intestate laws of this State from any person who may die seized or possessed of the same while a resident of this State, or, if decedent was not a resident of this State at the time of death, which property or any part thereof shall be within this State, or any interest therein or income therefrom, which shall be transferred by deed, grant, bargain, sale or gift, made or intended to take effect in possession or enjoyment after the death of the grantor,, bargainor, vendor or donor, to any person or persons, or to any body politic or corporate, either directly or in trust or otherwise, or by reason whereof any person or body politic or corporate shall become beneficially entitled in possession or expectancy, to any property or the income thereof, other than to or for the use of the father, mother, husband, wife, legally adopted children, or direct lineal descendant of the testator, intestate, grantor, bargainor, vendor or donor, except property .conveyed for some educational, charitable or religious purpose exclusively, shall be and is subject to the payment of a collateral inheritance tax of five dollars for each and every one hundred dollars of the clear market value of such property.”

We have italicized the clause which is the crux of this case. Under the agreed facts the beneficiaries of the fund bequeathed by • James Quirk are educational and religious organizations, and the funds go to educational and religious purposes. The only question is whether it was the intent of our law to grant a tax exemption for charities' located outside of Missouri. Differently stated did the Missouri Legislature intend this exemption clause of our statute to apply to all charities wherever located, or was it the intent to have it apply only to resident charities. We use the word “charities” to cover all the exempted subjects named in the statute. We have concluded that the legislative intent was to make this exemption apply to Missouri “charities” alone, and for reasons which follow.

II. The following rules of statutory construction are invoked by the respondents.

First, it is said that where the language of the statute is clear and unambiguous the intent of the General Assembly must be found in the statute. Secondly, that there is no pre- ,. • , ,. £ . , sumption against exemption from special taxation, and that the rule of presumption against tax exemptions in general taxation has no application to this case. Thirdly, it is contended that by the use of the words ‘ educational, charitable or religious purposes” the Legislature meant to make our law different from the laws of other states, wherein the exemption is extended to “institutions” or “corporations.” In other words, the word “purposes” is emphasized by respondents, as having a peculiar and saving grace in our statute. And, fourthly, it is conceded that the legislative power of the State is limited to persons or property within the State, but it is averred that such principle has no application to the case at bar “where it is sought by judicial construction to limit by taxation the right of a citizen of another State to exercise his charitable disposition over his property for the benefit of the institutions in his own home. ’J

We are not prepared to say that the statute is so plain in terms as not to require judicial construction as to the legislative intent. From statements in the briefs, and in oral arguments, it appears that the circuit courts of the State have not been of one voice in the construction of the statute. In most instances such courts have held that it is not the legislative intent to exempt foreign charities, or charities outside of the State. In the case at bar the learned circuit judge took a different view, and in so doing was opposed in judgment to some of his fellow circuit judges of the State, as well as the probate judge of his county. When the limits and bounds of the legislative acts are considered, it is by no means clear what was intended by the act in question. The words used must be considered from all the surroundings. But this matter we discuss later. Suffice it now to say that we believe the wording of the statute is such as to call for judicial determination of the legislative intent, as to the subjects of exemption, and on this theory we shall proceed.

III. We do not deem it material to discuss the question as to whether or not the general presumption against exemption from taxation applies to this kind of a case. That presumption is a valuable one in the trial of cases, because it forces those claiming the exemption to show that the property sought to be exempt clearly falls within the exempted class. But if we find that the legislative intent in the instant law was not to extend the exemption to ‘ ‘ charities ’ ’ outside of the State, then there- is an end to this controversy, and the reasoning as to whether or not the presumption as to exemptions applicable in general taxes applies to this case, is but a side question, upon which there is learning upon both sides. If the law is one requiring judicial construction as to the legislative intent, as we hold, then a determination of that question will forego all other questions.

The basic principle of all statutory construction is the legislative intent. This is true whether such intent must be drawn from the words of the act, or whether we go to extrinsic aids to find the intent. [Black on Interpretation of Laws (2 Ed.), p. 180; Verdin v. St. Louis, 131 Mo. 26; Sedalia ex rel. v. Smith, 206 Mo. l. c. 361; Perry v. Strawbridge, 209 Mo. 621; Decker v. Diemer, 229 Mo. 296.] So at the very thresh-hold of all statutory construction we are met with the paramount question, “What was the legislative intent ?” If no ambiguity appears, the courts go to the language of the law itself. If there is an ambiguity or uncertainty, then extrinsic aids may be used in detérmining the meaning, and these are various. [State ex rel. v. Smith, supra.] in getting at the legislative intent one of the prime considerations is the condition of the law at the time the new law was enacted, because words, general in meaning, are often used in legislative acts, because the law-making power knows that such broad general meaning is curtailed and limited by general laws, rules of law or public policies. To these we must ofttimes go to gather the real intent. As stated, one of the things always -in the mind of the legislative body is that their language will be construed in the light of existing laws, rules of law and public policies, and this perhaps accounts for the use of many general terms, rather than more limited ones.

To start with in this case, it must be presumed, that the General Assembly in passing this law, and making this exception, did so relying upon the fact that it would be interpreted in the light of existing law. One of the fundamental principles of the then existing law was that a statute would prima-facie be declared to be operative only as to persons and things, within the territorial jurisdiction of the law-making power which enacted it. In the very recent case of State ex rel. v. Wright, 251 Mo. l. c. 343, our brother Paris has well stated the rule:

“Besides this reductio ad ab sur dam, which would seem to settle this contention, certain presumptions confine us to our own State. A. statute is prima-facie confined in its operation to persons and conditions within the territorial jurisdiction of the Legislature. [Beale oh Rules of Legal Interp., p. 232.] ‘Primafacie every statute is confined in its operations to the persons, property rights or contract which are within the territorial jurisdiction of the Legislature which enacted it.’, [2 Lewis’s Sutherland on Stat. Con. 513.] We elect to our offices our own citizens, of our own State, under the provisions of our own laws. We never elect by direct suffrage a citizen of another State to-any office; these are the elections at which the election commissioners act, and the elections which they are required to hold. We conclude then that it is too clear for argument that by the ‘leading party politically opposed to that to which the Governor belongs ’ is meant the ‘leading party’ in this State.”

In that case we were called upon to determine what was meant by the general term “leading party politically opposed to the Governor.” It was urged that we should give the phrase such a meaning as to say that the strongest party, nationally speaking,. which was opposed to the political principles advocated by the Governor, was the “leading party” within the meaning of the act then under consideration. This we declined to do, because of the general existing law which confined all laws to persons and things in the State. The same doctrine should apply here. We should say that the Legislature in using the general terms, “some educational, charitable or religious purpose exclusively” had reference to such charities as were within the territorial limits of the lawmaking-power.

In other words the general doctrine seems to be that prima-facie the law should be held to have reference to persons and things within the territorial jurisdiction of the body enacting it, unless it clearly appears that another and different purpose should be gathered from the act itself. Presumptively the law making power is acting in the interest of persons and things within the State. Presumptively the lawmakers in this case were looking after the interests of Missouri, and not legislating for charities in other States, and especially is this so when they were unloosing our own purse strings by this exemption clause. It means, if given the construction urged by the respondent, that a Missouri lawmaking body was releasing its hold upon a source of revenue for charities outside of the State. To give it that construction, would in effect be to say that the lawmaking body was taking Missouri money to support foreign charities. In Ross on Inheritance Taxation, sec. 146, it is said:

“It has been contended that the exemption of charitable institutions from inheritance taxation applies to all such institutions, regardless of their location within or without the State granting the exemption, for, it is argued, the exemption is in recognition of the beneficent purpose of these institutions, and inasmuch as the purpose is common to them all, wherever located, the exemption should be universal. But tbe courts have not yielded to this argument. They have held, with unanimity it is believed, that in the absence of any language plainly indicative of a different intent, the Legislature must be deemed to have made the exception for the benefit of its own institutions, only, and that foreign corporations, or institutions without the State, must pay the inheritance tax, although exempt in the State of their domicile, and although some of their charitable work and enterprise are carried on within the State enforcing payment of the tax.”

So, too, as said by Andrews, C. J., in the Matter of Estate of Prime, 136 N. T. l. c. 362:

“It is the policy of society to encourage benevolence and charity. But it is not the proper function of a State to go outside of its own limits and devote its resources to support the cause of religion, education or missions for the benefit of mankind at large. The argument may have force, that the State might, consistently with its proper function, give immunity from taxation to some of the foreign corporations engaged in the work of education or charity. But, however, this may be, we are convinced that the statute of 1891 has no application to foreign corporations, and having reached that conclusion our duty is ended.”

Again in Carter v. Whitcomb, 74 N. H. l. c. 489, it is said:

“When however, an auxiliary body like the Auxiliary of the Woman’s Foreign Missionary Society, though connected with a local church and existing within the jurisdiction as an association, seeks as its principal object ‘the evangelization of heathen women’ and the raising of funds for that purpose alone, it is difficult to discover how the public represented by the people of this State is benefited by the supposed benevolence. Even if there are ‘heathen women’ in our midst, this society can do nothing for their enlightenment and civilization; for, as found in the case, none of its funds ‘are or can he devoted to charitable objects within the State of New Hampshire. ’ Its money may be sent, and presumably the principal part of it is sent, to assist in the conversion of people, living in remote parts of the earth, from their native religion to that of Christianity. The expenditure of large sums of money for the enlightenment upon religious subjects of the natives of the antipodes evidently was not one of the objects the' Legislature intended to encourage, when in 1895 the property of charitable associations ‘devoted exclusively to the uses and purposes of public charity’ was exempted from taxation, or when in 1905 legacies to such associations ‘in this State’ were exempted from the inheritance tax. The benefit to' the public of this State of such a trust is so visionary, problematical, and uncertain that’it cannot be deemed for the purposes of this case a public charity, without imputing to the Legislature motives which it is reasonably certain they did not entertain. The State is not itself a charitable institution, and does not authorize its representatives to' expend the public money, by exemptions from taxation or otherwise, for purposes having little or no relation to the welfare of the inhabitants of the State. The purpose of such laws is the acquisition of some supposed public advantage. . [Opinion of the Court, 58 N. H. 623; Perry v. Keene, 56 N. H. 514.] If it is impossible to see how the public good of the State is promoted by a claimed exemption from the tax burden, it cannot be inferred that the Legislature intended such a result from language which does not necessarily require such a construction. ‘If a statute is capable of two meanings, and one is more reasonable and therefore moré probable than the other, this fact is necessarily considered, with all other competent evidence, on the question of intent. The evidence of intention may' include various inherent probabilities and the probative force of many circumstances, as well as the literal sense of the words used. When the meaning is found by giving due weight to everything that legally tends to prove it, it is not a matter of discretion whether it shall be adopted or rejected. If the evidence establishes the fact that the literal sense is not the .true sense, a literal construction would be an alteration of the law.’ [Opinion of the Justices, 66 N. H. 629, 651.]”

And further on at page 491, in the same ease it is said:

“As a matter of practice, it has devoted substantially all of its funds to the support of charities outside of New Hampshire, and presumably it will continue'that practice. If its object was to maintain an orphans’ home or a hospital for poor people on the Pacific coast,- and all its resources were devoted to that purpose, the public benefit of such a charity in New Hampshire would not be apparent. Perhaps it would be no more evident than the maintenance of missions in China. Its relation to the public interests of this State, which alone the Legislature is ordinarily presumed to have in view, would be so slight, arising merely from a general community of interstate interests, that it is not probable such a charity would be the object of legislative bounty and encouragement.. Nor should we expect to find the law>mahers exempting from the common burden of taxation a society whose purpose is, as established by long practice, to use its funds exclusively in the promotion of charities in other states. If some substantial local benefit accrues of a public nature by the actual use of some of its funds for charitable purposes in this State, it might be found that it was included within the exemption, though it used the balance of its funds in other jurisdictions. [Balch v. Shaw, 174 Mass, 144.] The question would be, whether its charity was of such, a character and so administered as to be of any substantial benefit or advantage to the public of this State; and this would be principally a question of fact, to be determined upon competent evidence.” (The italics are ours.)

Quite a number of cases are cited by Ross in his work on Inheritance Taxation, supra, but these suffice to illustrate the rule and the reasons of the rule. There is no deep-seated meaning in the use of the word “purposes” in our act which can avail the respondents.

Under the great weight of the case law we are constrained to hold that it was not the legislative intent by the exemption clause of our statute to include property conveyed for educational, charitable or religious purposes outside of this State. In this view of the law other questions are immaterial.

Prom this it follows that the property in question is-subject to a collateral inheritance tax under section 309, Revised Statutes 1909-, and the circuit court was wrong in holding contra.

The judgment is reversed and the cause remanded to he proceeded with in accordance with this opinion.

All concur except Woodson, Bond and Walker, JJ., who dissent in an opinion by Walker, J.

WALKER, J.

I do not concur in the majority opinion. The statute (Sec. 299, R. S. 1899, now Sec. 309, R. S. 1909') is general in its terms and unmistakable in its meaning. Under its provisions property which passes by deed, grant, bargain, sale or gift, to other than the father, mother, husband, wife or natural or adopted children, is subject to the collateral inheritance tax, except when conveyed for educational, charitable or religious purposes. These clear and definite provisions do not, in my opinion, require adventitious aid in their interpretation. There is no'indicaton that the exemption of the property conveyed for the purposes mentioned was to be limited to that bequeathed to benevolences located within the State. If the terms of the statute demanded a liberal interpretation, it certainly should be given when the purpose of the exemption is beneficent in its nature; but.the terms of the statute are brbad and clear enough in themselves without recourse to any rule in regard to liberal interpretation. The framers of the law having in view the encouragement of bequests and grants for the general good, did not intend that the statute should be limited to geographical lines; and it is immaterial whether the property granted or bequeathed passes to an institution wdthin the borders of Missouri, or to one in a sister State or a foreign country; it is the purpose of the grant which the Legislature had in mind, and not the location of the benevolence to be aided. If I am correct in my conclusion, then it is necessary, before the statute can be construed as it has been by the majority, for these words: “within the State of Missouri,” to be inserted after the exceptions in the statute, so that the same shall read as follows: “except property conveyed for educational, charitable or religious purposes exclusively within the State of Missouri.” Under no rule of construction with which I am familiar, is this interpolation authorized.

A tax, under any view that may be taken of it, is a burden; an express statute is necessary to authorize its imposition; here, instead of such a statute, we have an express exemption. Under this state of- facts, I am of the opinion that the taxation of the property specified as exempt under section 309', supra, is unauthorized.

So much for the grounds of my difference with my brethren as to the rules of construction applicable to this statute.

Woodson and Bond, JJ., concur herein.