author: ROY, C.

text:
    LAFAYETTE WARD v. ELY-WALKER DRY GOODS BUILDING COMPANY, ALEXANDER M. and JAMES C. STEWART and the NATIONAL FIRE PROOFING COMPANY, Appellants.
    In Banc,
    March 1, 1913.
    1. APPEAL: Uncontested Holding. The Supreme Court is not called upon to review a holding of the trial court in favor of an appellant which is contested by no .one.
    2. NEGLIGENCE: Falling Crowbar: Precaution. A workman for the defendant Fire Proofing Company was standing on a scaffold on the fifth floor of a building and using a short crowbar to pry boards out of their setting in a false floor. He laid the crowbar down so that its end protruded a few inches beyond the edge of the scaffold, and reached to take down a large board. In doing that he displaced a small board which in falling struck the end of the crowbar and sent it flying out the front of the building and down upon the plaintiff’s head. Held, that such facts did not constitute negligence. No workman of ordinary care and caution could have anticipated such an occurrence.
    3. PLEADING: ÍViatter in Petition Repeated in Answer: Legal Conclusions. Where, in an action for personal injuries, a certain special ordinance was pleaded in plaintiff’s petition, the defendants were not harmed by the trial court’s action in striking that ordinance from defendant’s answer, nor were they harmed because their allegations of what they conceived to be their rights under that ordinance were also stricken out, since they were mere statements of legal conclusions and therefore unnecessary and superfluous.
    4. -: Striking Matter from Pleading: Evidence Afterward Admitted. Where all their evidence on the subject was admitted, the defendants in an action for personal injuries were not harmed by the action of the trial court in striking from their answer their allegations as to the temporary vacation of the sidewalk upon which plaintiff alleges he was injured on account of defendant’s negligence in failing to cover it while constructing a building.
    5. CITY ORDINANCE: Roofing Sidewalk While Erecting Building: Noncompliance: Injury to Workman. A city ordinance requiring builders to place a roof over the sidewalks while erecting a building more than four stories high, is for the protection of all persons lawfully on the sidewalk, and among those persons must be included an employee of a subcontractor engaged in fire-proofing such building.
    6. -: -: -: -: Persons Liable. Under a city ordinance requiring builders to place a roof over sidewalks near which buildings more than four stories high are being erected, and providing a penalty for its violation, both the owner who caused the erection of a building and the contractor who built it are liable to the plaintiff in damages for an injury which would not have occurred had they not failed to provide the required roof.
    7, -; -: Construction. A city ordinance which provides that at least one-third of any sidewalk near which a building is being erected shall be kept open for traffic, and then, after other clauses, ends by providing that, if the building is more than four stories in height, and near the street line, a roof shall be built “over such sidewalk,” means that whatever part of the sidewalk is left open for travel, whether a third of it or all of it, should be covered by such roof.
    8. -: -: -: -: Breadth of Provisions: Negligence. A provision in a city ordinance, that, if a "building to be erected is more than four stories in height,” and near the street line, a roof shall be built over the sidewalk, to be maintained “as long as material is being used or handled on said street front and above the level of such sidewalk,” is intended to protect persons lawfully on the sidewalk against injury from substances falling from the building, whether falling from the front or hurled from the inside, and that during all hours, at least while work on the building is in progress. Therefore, where plaintiff, as he crossed the sidewalk to enter a building of the kind specified in the ordinance, was injured by a crowbar which had fallen from an upper story through a window near < which workmen on the inside were at that time removing false flooring, and although the injury occurred before the bricklayers began their day’s work outside the building at' the fourth floor, an instruction was propertly refused which told the jury “that the ordinance mentioned in the evidence . . . specifically provides that such roof be maintained only so long as material is being used or handled on the street front above the level of such sidewalk . . . and if you believe and find from the evidence that at the time plaintiff sustained the injuries complained of, no work whatever was being done_ on the building mentioned in the evidence on the street front thereof,” but that the crowbar was knocked out from inside the building, then the owner of the building and the contractor were not under any obligations to maintain a roof over the sidewalk, and verdict must be for them.
    9. INSTRUCTIONS: Proper Comment on Failure to Undergo Surgical Operation After Injury. An instruction set out in the statement is held proper as to the effect to be given to the evidence regarding plaintiff’s failure, after his injury, to have a surgical operation performed which might have helped him.
    10. -: Conflict of Evidence: Province of Jury. Where plaintiff alleges that he was injured while upon a sidewalk over which the defendants, in violation of a city ordinance, had failed to build a roof, and there was a conflict in the evidence as to whether the sidewalk had been completed and as to whether the space was so blocked by material as to put it out of use as a sidewalk, an instruction was proper, and did not ignore the evidence, which left it to the jury to find whether at the time of the injury the plaintiff “was walking on the sidewalk.”
    11. ’ VERDICT: Passion and Prejudice. The Supreme Court refuses to hold that, under the facts in this case, the verdict was the result of prejudice on the part of the jury.

      Appeal from St. Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge.
    . Reversed as to National Fire Proofing Company; affirmed as to other appellants.

      Watts, Gentry & Lee for appellant National Fire Proofing Company.
    The demurrer to the evidence should have been sustained because the undisputed evidence introduced by plaintiff shows conclusively that the fall of the-crowbar upon plaintiff’s head was a mere accident or misadventure, without any negligence on the part of the master. Railroad v. Oldridge, 76 S. W. 58Í; Taylor v. Bush & Sons Co.', 66 Atl. 236; Olson v. Andrews, 168 Mass. 261; O’Neil v. Railroad, 130 Fed. 204; Railroad v. Ryan, 82 Tex. 565; Boyle v. Fire Proofing Co., 182 Mass. 93; Feneff v. Railroad, 82 N. E. 705; Helmke v. Thilmany, 107 Wis. 216; McDonald v. Simpson-Crawford Co., 114 App. Div. (N. Y.) 859; Boldt v. Railroad, 18 N. Y. 432; Mele v. Del. & H. C. Co., 14 N. Y. Supp. 630;. Walsh v. Cullen, 235 111. 91; Roland v. Tift, 63 S. E. 133; Willmarth v. Cordoza, 176 Fed. 1; Ewald v. Railroad, 70 Wis. 420; 5 Am. St. Rep. 178; Higgins v. Railroad, 36 Mo. 418; Nappes v. Shoe Co., 116 Mo. App. 154.

      Seneca N. Taylor and S. G. Taylor for appellants Jas. Stewart & Company and Ely-Walker Dry GroodsBuilding Company.
    (1) The city ordinance pleaded by plaintiff did not enure to his benefit. Its sole object and purpose-was to safeguard sidewalks kept open during the course of constructing the building for pedestrians to-pass and repass on the street. Coal Co. v. Neal, 166 Ind. 458; Faris v. Hobers, 134 Ind. 269; Rohback v. Railroad, 43 Mo. 187; Evans, v. Railroad, 62 Mo. 49. (2) The law is firmly settled that where the act of' negligence complained of as causing injury is at most but the remote occasion,of the injury and a subsequent act of negligence by a responsible person intervening was the immediate and proximate cause of injury there can be no recovery. 16 Am. & Eng. Ency. Law, pp. 428, 433, 436, 440'; Wharton on Law of Negligence (1 Ed.), secs. 134,137,138; Shearman & Redfield on Negligence, sec. 26, on Contributory Negligence (2 Ed.), sec. 31; Hudson v. Railroad, 101 Mo. 14; Railroad v. Kellogg, 94 U. S. 469; Bishop on Non-Contractual Law, secs. 41 and 42; Foley v. McMahon, 114 Mo. App. .447; Powell v. Railroad, 76 Mo. 83; Henry v. Railroad, 76 Mo. 288; Reed v. Railroad, 50 Mo. App. 505; Steep v. Railroad, 85 Mo. 229; Stanley v. Railroad, 114 Mo. 606; Thompson v. Railroad, 14 Mo. 125; Tinsdale v. Norton, 8 Mete. 388; Melntire v. Roberts, 149 Mass. 450; Lewis v. Railroad, 54 Mich. 514; Welfare v. Railroad, 4 Q. B. 693; Mire v. Railroad, 7 So. 473; Railroad v. Powell, 41 S. W. (Tex. Civ. App.) 695; Kappes v. j Shoe Co., 116 Mo. App. 171. (3) The judgment should j be reversed because the court erred in sustaining the i motion of plaintiff to strike out the affirmative defense | pleaded by these defendants based on the special ordi- I nance 41406 authorizing these defendants to excavate i the entire space which had been used as a sidewalk and obligated them thereafter in due course to con- j struct a sidewalk as specified in said ordinance. Campbell v. Railroad, 175 Mo. 166.

      J. F. Merryman for respondent.
    (1) The ordinance was passed for the benefit of the public: — for the benefit of every man, woman and child in the city 'of St. Louis. Dickson v. Railroad, 124 Mo. 140; Cooley on Torts, sec. 336. (2) This is an action founded ou the concurrent negligence of three joint tortfeasors and either one of the three is liable if his negligence concurred with that of the other and was a part of the direct and proximate cause. A definition of joint tortfeasors and a citation of a few only of the many, many authorities bearing on the case at bar will suffice. Cooley on Torts, sec. 37, p. 92; 17 Am. & Eng. Ency. Law (1 Ed.), p. 604; Ldre v. Mfg. Co., 160 Mo. 624; Harrison v. Light Co., 195 Mo. App. 606; Brash v. St. Louis, 161 Mo. 437; Smith v. Builder’s & Trader’s Exchange, 91 Wis. 365, 30 L. R. A. 504.
   ROY, C.

The plaintiff sued the Ely-Walker Dry Goods Building Company, the firm of James Stewart & Company, composed of Alexander and James C. Stewart, and the National Fire Proofing Company for damages for personal injuries, the amount claimed being $15,000.

The verdict was against all the defendants for the full amount claimed. The trial court forced a remittitur of $7000, and judgment was entered for $8000, from which the Fire Proofing Company took a separate appeal and the other defendants took a joint appeal. This opinion covers both appeals.

The Ely-Walker Company as owner of the premises in November, 1906, contracted with James Stewart & Company for the construction of a building of seven stories and a basement on the south side of Washington .avenue between Sixteenth and Seventeenth streets in the city of St. Louis. The Fire Proofing Company subcontracted with Stewart & Company to ■do the fire proofing. The principal contract called for the construction of some other buildings, the total consideration being $1,156,047, and the amount to be paid the subcontractor being $128,000.

There was at the time of the making of those contracts an ordinance of the city, the material parts of which were as follows:

“Sec. 925. Extent of occupation of street and sidewalk.
“The extent of occupation of sidewalk and street to he covered by the terms of a permit for street obstruction or building, shall be as follows: Such permit shall not authorize the occupation of any sidewalk or street or part thereof other than that immediately in front of the premises of the building upon which said permit is issued. During the progress of building operations at least one-third of the permit granted shall at all times be kept free and unobstructed for the purpose of passage and clear of rubbish, dirt and snow.. Such sidewalks must, if there are excavations on either side of the same, be protected by substantial railings, which shall be built and maintained thereon so long as such excavations continue to exist. It is not intended hereby to prevent the maintenance of a driveway for the building site. It shall be permitted, for the purpose of delivering material to the basements of the buildings, to elevate such temporary sidewalk to a height not exceeding four feet, above the curb level of the street; and in case the sidewalk is so elevated it shall be provided with good and substantial steps on both ends of the sides thereof. If the building to be erected is more than four stories in height, and is set at or near the street line, there shall be built over such sidewalk a roof having a framework and covering, composed of supports and stringers of three by twelve timbers, not more than eight feet from centers, covered by two layers of two-inch planks. Said roof shall be maintained as long as material is being used or handled on said street front, and above the level of such sidewalk.”
“Sec. 927. Penalty. Any person who shall himself violate the provisions of the said next two preceding sections, or by another cause the provisions of' the said next two preceding sections to be violated,, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than twenty-five ($25) dollars nor more than one hundred dollars. (R. C. 1892,asec. 278).”

Those sections were re-enacted on March 19, 1907, with the following addition thereto:

“And where excavations are made under or across any sidewalk, the street commissioner is hereby authorized to require such elevated temporary sidewalks to be erected so as to afford safe and convenient passage.”

On March 1, 1907, preceding said re-enactment and while the work was in progress, a special ordinance was enacted, of which the material portion is as follows:

“Section One. That Ely-Walker Dry Goods Building Company, a corporation under the laws of Missouri, its successors and assigns, be and they are hereby authorized and empowered to excavate, build and maintain areas under the sidewalks in city blocks eight hundred and twenty-seven and eight hundred and thirty-two, adjacent to the buildings being erected, or to be erected, on the properties leased to said ElyWalker Dry Goods Building Company, as follows-. Under the south sidewalk of Washington avenue from the east curb line of Robbins lane eastwardly three hundred and forty-three feet and four inches; under the east sidewalk of said Robbins lane from the south curb line of Washington avenue to the north curb line of St. Charles street; under the north sidewalk of St. Charles street from the east curb line of Robbins lane eastwardly three hundred and ten feet and seven inches; under the east sidewalk of Sixteenth street from the north curb line of Locust street northwardly one hundred and seventy-five feet and six and one-half inches, and under the north side of Locust street from the east curb line of Sixteenth street eastwardly, one-hundred and sixty-six feet and ten inches, each such area to be equal in width to the width of the sidewalk over the same, measured from' the building line to the curb line. Also to so construct and maintain the sidewalks over said areas, that for a width of not exceeding seven feet measured from the building line, each of said sidewalks adjacent to the building line shall be composed of illuminating or prismatic glass tiling so constructed as to sustain a uniform distributed weight of two hundred pounds for each square foot thereof. Also to excavate, build and maintain a tunnel seventeen feet wide under and across St. Charles street between the St. Charles street building lines of the respective properties leased to said Ely-Walker Dry G-oods Building Company as aforesaid.”

The building was constructed at or near the street line. There was at no time a roof of any kind erected over the sidewalk. There was a swinging scaffold, o.n the outside all around the building for the use of the brick masons, except that it was not over the main entrance. There was a driveway for vehicles through the main entrance for the purpose of conveying material into the building. The swinging scaffold was fifty inches wide and was about the level of the fourth floor, to which the brickwork had reached at the time of the injury. The steel work was about finished. There was a force of carpenters, of which plaintiff was one, whose business it was to construct the forms on which the concrete flooring was laid. A false floor of boards was laid on temporary framework. The concrete was then laid, and, when it had sufficiently hardened, another set of men removed the false work and the lumber would then be taken up for use on the floor above.

Two men, Wendels and Sonselis, were working very near a point over the main entrance. Wendels was on a scaffold on the fifth floor removing the boards under the floor above. The boards of the false floor were not nailed to the framework which supported them, but were simply laid thereon. When the supporting framework was removed, the boards of the false floor remained adhering to the concrete. Wendels used a crooked bar of iron about three feet long, known as a “goose-neck crowbar,” to loosen • the boards one by one as he removed them. Having loosened one, a long board, lie laid the bar down on the scaffold, the end sticking out over the edge of .the scaffold a few inches toward the front of the building. Conselis was standing on the floor receiving the lumber as it was handed to him by Wendels. When Wendels took down the long board which he had just loosened, a short board two feet long and- ten inches wide fell from its place, above, and, striking the projecting end of the crowbar,.-sent it flying out of the front of the building, where it struck a beam as it went out, and then went on over, out and down upon the head of the plaintiff, rendering him unconscious and leaving a permanentjlepression in the skull. The evidence tends strongly tO^Stew^Eaf^he is incapacitated for work and is permaneuRg. injured. There was also evidence tending to show that the operation of trephining. would probably give relief, and that plaintiff had been advised Jasús^eons to "'have such operation, but had failed to do so. The surgeons testified that such operation would be more or less ¿anger on s- There was strong evidence on both sides as to whether the plaintiff was on the sidewalk or out in the street outside the curb at the time he was hurt; and there was also a conflict of the evidence as to whether the sidewalk from the main entrance to the northeast corner of the building had been so blocked with building material as to put it out of use as a sidewalk for the time being. The old sidewalk had been removed and the area thereunder had been excavated. Over and across such excavation I-beams had been placed and a temporary sidewalk of longitudinal boards had been laid thereon. The evidence for defendants tended to show that only portions of the temporary sidewalk had been rebuilt, while that for the plaintiff was to the effect that it was all rebuilt except some small holes for letting material down into the basement.

Plaintiff’s evidence tended to show that he usually went to work at eight o ’clock in the morning and that he had gone about seven-thirty in the morning to the office of the Fire Proofing Company at the northeast corner of the building and obtained his working check,” which every employee took out every morning, and- walked up over the temporary sidewalk towards the main entrance; and that when about two feet east of the passageway at the main entrance and about three feet inside the curb, he was hit by the bar and injured. The petition alleged that all the defendants negligently failed to erect the roof over the sidewalk, and alleged that the acts of the employees of the Fire Proofing Company in causing the bar to be thrown in the manner stated constituted actionable negligence.

The petition alleged the existence of all the ordinances above mentioned. The answer of the Fire Proofing Company was a general denial. The other defendants filed an answer containing a general denial, and also alleging the existence of the special ordinance of March 1, 1907, above set out, in regard to excavation under the sidewalks, etc., and made the following allegation in regard thereto:

‘ ‘ These defendants further aver that by the terms of said city ordinance, said Ely-Walker Dry Goods Building Company was duly authorized and empowered to excavate the whole width of the sidewalk on the side of the building in question, and to vacate the use of said sidewalk mentioned in plaintiff’s.petition and to have and keep the same vacated from use as a sidewalk during the entire construction of said building; that in pursuance of the authority granted to said ElyWalker Dry Goods Building Company by said ordinance, it did excavate the whole width of what had formerly been the sidewalk immediately north of said building and did cut off from public and private use and fence off tbe space where said sidewalk bad been, thus vacating tbe use of said sidewalk as said building company bad tbe right to do under said ordinance, and that said sidewalk bad been so cut off and vacated as a sidewalk from public and private use for a period of several weeks prior to plaintiff’s alleged injuries, and remained in that condition at tbe time of plaintiff’s alleged injuries.
“These defendants further aver that at tbe time of plaintiff’s alleged injuries and for several weeks prior thereto, there bad been no sidewalk on tbe .north side of said building in question, nor bad tbe time arrived in tbe construction of said building when it became tbe duty or when it was practicable or possible for tbe said Ely-Walker Dry Goods Building Company to reconstruct said sidewalk, covering tbe same with illuminating or prismatic glass tiling as required by said ordinance, and these defendants therefore say that tbe general ordinances pleaded by plaintiffs have no application to tbe case at bar.”

Tbe answer also pleaded contributory negligence. Tbe plaintiff filed a motion to strike out all that portion of the answer in regard to tbe last mentioned ordinance and tbe rights and doings of tbe defendants thereunder for tbe following reasons:

“1st. That said special ordinance does not repeal tbe general ordinance of tbe city of St. Louis as set out in full in plaintiff’s petition.
2d. That said special ordinance on its face shows and in its title declares, that it simply authorizes ElyWalker Dry Goods Building Company to erect, build and maintain areas under certain sidewalks and to build and maintain a tunnel under and across St. Charles street, and tbe title and tbe ordinances show absolutely on its face that it does not even attempt to repeal tbe general ordinances of the city of St. Louis as set out in plaintiff’s petition, and is therefore no defense to plaintiff’s cause of action.”

The motion was sustained, exceptions were taken, a term bill of exceptions as to that matter filed, but such action of the court in sustaining that motion was not mentioned in the motion for a new trial.

The trial court held that the Fire Proofing Company was not liable for the failure to construct the roof over the sidewalk, and held that all the other defendants were liable for such failure if one of them was. The court refused instructions in the nature of demurrers to the evidence asked by each of the defendants. '

Instructions 1 and 2 given for plaintiff were as follows :

“1. The court instructs the jury that the ordinances read in evidence declare that if a building to be erected in the city of St. Louis is more than four stories in height, and is set at or near the street line, there shall be built over such sidewalk, immediately in front of the premises upon which said building is to be built, a roof having a framework and covering composed of supports and stringers of 3x12 timbers, not more than eight feet from centers, covered by. two layers of two inch plank; and that said roof shall be maintained as long as material is being used or handled on said street front and above the level of'said sidewalk;
“And if the jury find and believe from the evidence that the defendants Alexander M. Stewart and James Stewart, doing business under the firm name of James Stewart and Company, were, on or about the 6th day of June, 1907, engaged in erecting the building referred to in the evidence and had charge of the construction of said building, that said building was more than four stories in height and was at or near the street line of an open public street known as Washington avenue between Sixteenth and Seventeenth streets in the city of St. Louis, Missouri, and if the .jury finds from the evidence that the said defendants failed to build or failed to cause to he built over the sidewalk immediately in front of said building on Washington avenue a roof of any nature or description, and that at said time material was being used and handled-on said street front and above the level of said sidewalk; and if the jury further finds from the evidence that plaintiff on or about said 6th day of June, 1907, at about 7:30 o’clock in the morning, was walking on the sidewalk referred to above and while so walking on said sidewalk was struck on the forehead by the bar of iron referred to in the evidence, which said bar of iron had been negligently knocked off of one of the upper stories of said building by a servant of the National. Eire Proofing Company, and that plaintiff thereby sustained the injury mentioned in the evidence; and if the jury further find and believe from the evidence that the failure of the defendants mentioned in this instruction, to-wit, Alex. M. and James Stewart, to erect the roof over the sidewalk as set out above directly concurred with the act of the party referred to above in causing plaintiff’s said injury; and if the jury further finds from the evidence that plaintiff was exercising ordinary care at the time of his injury for his own safety, then he is entitled to recover against the defendants Alexander M. and James Stewart, doing business as James Stewart & Company.
“2. The court instructs the jury that if they believe and find from the evidence that the defendant the Ely-Walker Dry Goods Building Company entered' into a contract with the defendants Alexander M. and James Stewart, doing business under the firm name of James Stewart & Company, whereby the building mentioned in the evidence was caused to he erected for it, and that said James Stewart & Company were the general contractors of the defendant, the ElyWalker Dry Goods Building Company, for the erection of said building, and were such contractors on or about the 6th day of June, 1907, and if the jury •further find that no roof was erected over the sidewalk as referred to in instruction No. 1, and if the jury further find that under instruction No. 1 the plaintiff is entitled to recover against the defendants Alexander M. and James Stewart, doing business under the firm name of James Stewart & Company, then yon should also find in favor of plaintiff against the defendant the Ely-Walker Dry Goods Building Company.” '

And the court refused the following instructions asked by the Ely-Walker Company and by Stewart & Company:

“B. The court instructs the jury that the ordinance mentioned in the evidence, after providing for the erection of a roof over sidewalks in certain cases, specifically provides that such roof be maintained only so long as material is being used or handled on the street front above the level of such sidewalk. And the court instructs the jury that if you believe and find from the evidence that at the time plaintiff sustained the injuries complained of, no work whatever was being done on the building mentioned in the evidence on the street front thereof, but that the pinch-bar mentioned in the evidence was knocked off one of the stories of the building, and was knocked from a point inside the front wall of said building and out through the wall of said building, then and in that case neither defendant Ely-Walker Dry Goods Building Company nor defendants Alexander M. and James C. Stewart were under any obligations to maintain a roof over the sidewalk mentioned in the evidence on said day, and were guilty of no violation of the ordinance mentioned in plaintiff’s petition and your verdict should be for said defendants.
“C. The court instructs the jury that if you believe and find from the evidence that the pinch-bar mentioned in the evidence was knocked out from one 'of the stories of the building mentioned in the evidence by an employee of defendant National Fire Proofing Company, and that said employee of said National Fire Proofing Company, in so knocking said pinch-bar out of the front of.said floor, was guilty of negligence, then and in tñat case your verdict must be for the defendants Ely-Walker Dry Goods Building Company and Alexander M. and James C. Stewart, even though you believe and find froin the evidence that said defendants failed to maintain, at the time plaintiff was injured, a roof' over the sidewalk mentioned in the evidence.
“D. The court instructs the jury that the ordinance mentioned in plaintiff’s petition, after providing' for the erection of a certain roof over sidewalks under certain conditions, further provides that such roof need only be maintained so long as material is being used or handled on such street front above the level of such sidewalk. And the court instructs the jury that plaintiff alleges in his petition that on the 6th day of June, 1907, defendants failed to erect and maintain a roof though building materials were still being used and handled on the street front mentioned in the evidence above the level of the sidewalk. And the court instructs the jury that there is no evidence whatever in this case to sustain said allegation of plaintiff’s petition that on said date any building materials were still being used and handled on the street front mentioned in the evidence in the erection of the building mentioned in the evidence above the level of such sidewalk.
“E. The court instructs the jury if you believe and find from the evidence that the plaintiff on the occasion in question was injured by a pinch-bar falling from the fourth floor of the building mentioned in the evidence, and that a servant of defendant National Fire Proofing Company placed said pinch-bar on a scaffold and thereafter, while removing a certain temporary flooring, caused or allowed a piece of wood to fall, and strike the said pinch-bar in such a manner as to cause it to fall from the fourth story; and if you .further believe and find from the evidence that said act of said servant of said National Fire Proofing Company in so causing said pinch-bar to fall was negligent; and if you-further believe and find from the evidence that plaintiff himself was in the exercise of ordinary care at the time in question, your verdict must be in favor of plaintiff and against defendant National Fire Proofing Company. And the court instructs you that if you find the facts to be as above set out, then and in that case your verdict must be against defendant National Fire Proofing Company, whether you believe and find from the evidence that at the time plaintiff was injured he was standing on the sidewalk mentioned in the evidence or in the street. But if you believe and find from the evidence that the plaintiff at the time he was struck was standing in the street, you cannot, under any circumstances, find against defendant Ely-Walker Dry Goods Building Company or defendants Alexander M. and James C. Stewart.
“F. The court further instructs the jury, that the plaintiff alleges that the ordinance read in evidence required that one-third of the width of the sidewalk in question should be kept free and unobstructed for the purpose of passage, and clear of rubbish, dirt and snow; and it required in no event more than this one-third in width that was thus to be kept free and unobstructed for the purpose of passage should be covered with a roof; and the court further instructs the jury, that it was at the option of those whose duty is was to maintain such temporary sidewalk, to determine what particular part of such sidewalk should be so kept unobstructed for travel and covered with a roof Tf, therefore, the jury believe and find from the. evidence, that if those whose duty it was to keep one-third of said sidewalk free and unobstructed for the purpose of passage had been so kept and had been covered with a roof it would not have prevented the pinch-bar in question from striking plaintiff, then it is your duty to find a verdict in favor of the defendant Ely-Walker Dry .Goods Building Company, and Alexander M. and James C. Stewart, even though under the evidence and instructions of the court you find for plaintiff and against the National Fire Proofing Company, on the alleged ground that an employee of said Fire Proofing Company negligently caused said pinch-bar to be thrown out of the building and injure plaintiff.” !y'f, -

Instructions 11 and 12 given for. plaintiff were ■ as follows:

“11. The court instructs the jury that if you believe and find from the evidence that the plaintiff was struck by the pinch-bar mentioned in the evidence and that when he was so struck he was not on the sidewalk north of the building mentioned in the evidence, but was north of the curb of said sidewalk in the street proper, then and in that case the plaintiff cannot, under any circumstances, recover against the defendants, or any of them, on the ground that the defendants or any of them had failed to build a roof over the said sidewalk.
“12. The court further instructs the jury that it was the duty of the plaintiff when injured to take such steps as an ordinary careful and prudent man would have taken in the exercise of ordinary care under the same circumstances to reduce his damages to the minimum." And if you find from the evidence that the plaintiff could, after his injuries, have had an operation performed on his head which would have firm proved his.condition; and if you further find from the evidence that he was advised by a competent ..surgeon that such operation was necessary to be performed in order to improve his condition; and if you further find from the evidence that such operation, had it been performed, would have greatly lessened his physical pain and mental anguish and greatly improved'his health; and if you further find from the evidence that plaintiff in failing to have such operation performed failed to exercise ordinary care to improve his condition, then if you find for the plaintiff you should only allow him as damages such amount, or sum as his damages would have aggregated if he had at said proper time had such operation performed.”

I. There are many questions raised on the appeal of the Eire Proofing Company which it is unnecessary to discuss here, for the reason ^at We that aily case was ma<3-e against that defendant. The trial court held that it was not liable for- the failure to erect a roof over the sidewalk, and we are not called on to review that holding, as it was in favor of the appellant, the Fire Proofing Company, and no one is contesting the correctness of that holding.

The facts as to the falling of the crowbar did not constitute negligence on the part of the Fire Proofing Company. No workman of ordinary care and caution could have anticipated such an occurrence. It may very well be said that he could expect that a plank might probably fall from the ceiling to the scaffold, but it would be almost a gift of prophecy that would enable him to foresee that it would fall on the projecting end of the crowbar, and would so fall as to hurl it out of the building. “The requirement is only to use such reasonable precautions to prevent accidents as would have been adopted by prudent persons prior to the accident. The prudence and propriety of men’s doings are not judged'by the event, but by the circumstances under which they act;” [Fuchs v. City of St. Louis, 167 Mo. l. c. 646; Chandler v. Gas Co., 174 Mo. l. c. 329.]

Such being the case, the demurrer of the Fire Proofing Company to the evidence should have been sustained. [Christensen v. Metropolitan Street Ry. Co., 70 C. C. A. l. c. 661.] Having thus disposed of the appeal of the Fire Proofing Company, all further references to the appellants must be understood as meaning the appellants other than the Fire Proofing Company.

II. Regardless of the question as to whether the action of the trial court in striking out a part of the answer has been properly brought to this court by the motion for a new trial, we hold that the defendants have not been injured by such action. The special ordinance of March 1, 1907, was pleaded in the petition, and it served no purpose to repeat it in the answer. That part of the answer setting out what the defendants conceived to be their rights under that ordinance was a mere statement of legal conclusions and therefore unnecessary and superfluous. The striking out of the allegations as to the temporary vacation of the sidewalk did not harm defendants, for the reason that all of the defendants’ evidence on that subject was admitted by the trial court.

III. ordinance We do not agree with appellants that the requiring a roof over the sidewalk was not intended for protection against injuries inflicted on this plaintiff under the circumstances of this case. The position of the appellants is stated in their brief as folfows:

“The will show, in to the ment that plaintiff was hurt, as the undeniable- proof as he was about to pass over the driveway building in question. There is no require-the driveway should be covered with a roof. The plaintiff was not using the sidewalk as a pedestrian of the type the ordinance was intended to protect, but he was about to enter the building over the driveway to begin work with the National Fire Proofing Company, for whom he had been working some days before his injuries. This ordinance was not designed or intended for the protection of employees of a subcontractor in any sense of the word; it was designed and intended for the protection and benefit of pedestrians who would have occasion to use the sidewalk, passing up and down the street.”

In support of their position they, cite Bell v. Railroad, 72 Mo. 50, which was for personal injuries to one who was on the railroad track, but not at a public crossing. The plaintiff claimed that the failure of the operatives on the engine to give the signals for a nearby road crossing was the cause of the injury. This court said that the statute “was for the benefit of persons at the crossing or approaching it.” That case does not support the contention of thé appellants. Is not the language of the court in that case broad enough to cover the case of any person “at the crossing” regardless of the question as to who he was, whence he came or whither he was going?

■ The case of Racine v. Morris, 201 N. Y. 240, was for personal injuries to a policeman who went through an open door into a freight elevator shaft in the building of the defendant. An ordinance required that such doors should be kept closed. The court said, speaking of the ordinance: “Its language does not, nor does the language of the sections related thereto, limit its operations to any designated class or classes of persons. Upon the other hand, there are within it indications that all persons lawfully within the designated buildings were through it to be shielded.’,’ We hold that the ordinance in this case was for the protection of all persons lawfully on the sidewalk,

IV. The ordinance requiring a roof over the sidewalk imposed a duty upon the defendants making them liable for injuries occurring by treason o:*- suc-*1 £aüurej °r which would not have occurred had such duty been performed.

It was said in Willy v. Mulledy, 78 N. Y. 310: “It is a general rule that whenever one owes another a duty, whether such duty be imposed by voluntary contract or by statute, a breach of such duty, causing damage, gives a cause of action. Duty and right are correlative ; and where a duty is imposed, there must be a right to have it performed.”

In Koch v. Fox, 75 N. Y. Supp. 913, 917, the court said: “It may he conceded that in a proper case it is competent for the Legislature, under its general police power, to impose a new duty for the protection or safety of the public, or of persons occupying or in buildings, the violation of which, if it directly and without any intervening cause results in injury or damage, will give rise to a cause of action; and doubtless the Legislature may delegate this authority to a municipal legislature.” And that case cited a long list of cases in support of the proposition.

It was held in Pauley v. S. G. & L. Co., 131 N. Y. 90, that there was no obligation at common law requiring the owner of a building which was not peculiarly subject to fire by reason of the character of the work to be carried on in it, to construct fire escapes. In 1887 a statute of New York required fire escapes for all factories three or more stories in height, and imposed a penalty for its violation. The court said: “I am unable to agree with the contention of appellant that the sole remedy under the statute was the public remedy which consisted of an enforcement of the penalties provided. The requirement of fire escapes was for the direct and special benefit of the operatives in such factories, and intended for their protection, and the rule applies that when a statute commands or prohibits a thing for the benefit of a person, he shall have a' remedy upon the same statute for the thing enacted for his advantage, or for a wrong done to him contrary to its terms.”

The case of Brannock v. Elmore, 114 Mo. 55, was for negligence in blasting without protecting the blast with timber as required by the ordinance. The court said: “The disregard of the ordinance was in itself an omission of duty sufficient to justify a verdict for plaintiff. ’ ’

As to whether the failure to erect the roof over the sidewalk was the causa causans of the injury, we quote from the opinion of Justice Mathews in Hayes v. Railroad, Ill U. S. l. c. 241: “It is further argued that the direction of the court below was right, because the want of a fence could not reasonably be alleged as the cause of the injury. In the sense of an efficient cause, causa causans, this is no doubt strictly true; but that is not the sense in which the law uses the term in this connection. The question is, was it causa sine qua non, a cause which if it had not existed, the injury would not have taken place, an occasional cause?”

It was held by the trial court that if either the Ely-Walker Company or Stewart and Company were liable, the other would be also, and the appellants so concede in effect in. their brief. It was said in Koch v. Fox, 75 N. Y. Supp. l. c. 917: “Even though the owner lets the entire work to an independent contract- or, still manifestly he causes the erection of the building.” In other words, the Ely-Walker Company caused the erection of the building and failed to provide for a roof over the sidewalk, and Stewart and Company built the building without such roof. They are both liable for the result of such failure.

V. It may be conceded that under the ordinance defendants ' were not bound to keep more than one-third of the width of the sidewalk open for travel. But it is the clear meaning that whatever part was open for travel, whether a third or more, should be protected by such roof.

VI.The court properly refused instruction B asked by the' defendants. It was shown by all the evidence in the case on both sides that the work on the building was still in progress. The steel work was . not quite complete. The brickwork was at the fourth floor. Certainly, within the meaning of the ordinance, material was still being used or handled on the street front above the level of the sidewalk. The brick masons had not gone to work that day, it being before eight o’clock, their hour of beginning work. The ordinance does not mean that it is for protection only during the hours when material is being used on the street front and only against injuries caused by the falling of material which is being used on the street front. It is intended for the protection of persons lawfully on the sidewalk against injury from substances falling from the building, whether falling from the front or hurled from the inside, and that during all hours, at least while work on the building is in progress.

VII.The question as to the effect to be given to the evidence on the subject of plaintiff’s failure to have a surgical operation performed was properly submitted to the jury m 12.

VIII.Instruction 1 given for the plaintiff is criticised by appellants, who say: “This instruction utterly ignored the fact that the entire space where the sidewalk had been was removed by these defendants by authority of special ordinance granting to them the right to do so, and the space had been excavated; and that the sidewalk had been closed in such manner that the public could not pass or repass over the space where the sidewalk had been; and that the time had not arrived when these defendants could construct the new sidewalk as contemplated, and as they were bound to do by said special ordinance.”

It is sufficient to call attention to the terms of the instruction, which required that the jury shall find that- the plaintiff “was walking on the sidewalk referred to above.” The jury could not so find if there was no sidewalk there, or if it was so obstructed that it could not be used as a sidewalk. If appellants desired that subject tc be more fully covered by instructions it was their duty to ask proper ones on that subject.

It is tru.e that the old sidewalk had been removed and the area thereunder excavated, and that the new permanent sidewalk had not been constructed. But it is also true that a part of the temporary sidewalk had been constructed, as conceded by the evidence on both sides.

There was a conflict in the evidence as to whether it had been completed, and there was a conflict of evidence as to whether that sidewalk was so blocked by material piled thereon as to put it out of use as a sidewalk. The instruction complained of left it to the jury to find whether at the time of the injury the plaintiff “was walking on the sidewalk.” They could not so find if there was no sidewalk at that place, nor could they so find if the sidewalk was so blocked as to destroy its use as a sidewalk. That instruction did not overlook any part of the evidence, nor did it assume the existence of controverted'facts, and was properly given.

The foregoing opinion covers substantially all the points made by the appellants except the one that the verdict was the result of prejudice on the part of the jury. Under, the facts in the * , , , , , case we are not prepared to so hold.

The judgment as against the National Fire Proofing Company is reversed, and it is affirmed as to the other appellants.

Blair, G., concurs.

PEE CURIAM. — This cause coming into Banc from Division on a dissent, the opinion of Roy, 0., is adopted, as modified, as that of the court.

All concur, Graves and Bond, JJ., in result.


source: Caselaw Access Project

author: BBOWN, C.

license: Public Domain

text:
    LOUIS HOUCK et al., Appellants, v. LITTLE RIVER DRAINAGE DISTRICT et al.
    In Banc,
    March 1, 1913.
    1. CORPORATIONS: Public: Drainage Districts: Powers:. Taxation. The State has the power to create corporations for the purpose of reclaiming or improving swamp and overflowed lands. Such instrumentalities may be invested with power and authority to construct and maintain whatever works may be necessary to accomplish their object, and to raise the funds to pay for the same by assessment on the lands to be benefited thereby.
    2.--:-:-: Special Taxes: Constitutional Question. The special taxes which drainage corporations in Missouri are authorized to levy and collect upon and for the benefit of the lands included in their districts do not come within the provisions of article 10 of the Missouri Constitution, entitled “Revenue and Taxation.”
    3. TAXATION: Legislative Discretion: General and Special Taxes. The taxing power is an incident to every function of the State, but under our system of government it cannot stand alone. Every tax must rest on a public purpose to which its proceeds must be devoted. General taxation compensates the taxpayer with all the advantages of government. In selecting the subjects of general taxation and in the assessment and levy of the taxes, the discretion of the Legislature, subject only to . the Constitution, must be full and untrammeled; otherwise revenue laws would never pass the region of judicial debate into the region of execution. And this discretion applies equally to the field of special taxation.

      4.--: -: - — : Benefits. The right to tax through governmental agencies, such as drainage corporations, depends upon the truth that the development of the lands of the State in productiveness and value, as well as the promotion of the health and comfort of the people, is a matter of governmental concern; and where such improvements are made necessary by . local conditions which greatly impair the value of the lands of an entire district, and the primary result of their accomplishment will be a corresponding benefit to all, experience has shown that the State is the only power that can so combine the elements involved that each may bear a fair and just proportion of the cost. That this proportion should bear some relation, in theory at least, to the benefits accruing to the property, seems fair and just, and is the general result towards which the legislative efforts are directed.
    5. -:--:--: -: Drainage Districts; Manner of Assessment. The Legislature of Missouri may fix the territorial limits of special taxing districts, and may also fix the actual or maximum amount of special assessments, which it may place at a level rate, founded upon a unit of area or frontage, or at a rate founded upon a proceeding to ascertain the actual benefit accruing to each particular tract; or it may delegate any or all of these powers to an appropriate agency to be chosen or created by it. When' all this has been done by valid legislation, the owner of property in the district cannot be heard to contend that his property was not in fact benefited, or that the benefit was less than the amount assessed.
    6. -:--:---:-: Sec. 5538, R. S. 1909: Constitutional Question. Section 5538, R. S. 1909, provides: “As soon as any drainage district shall have organized under order of the circuit court, and a board of supervisors are elected and qualified, such board of supervisors shall have the power and authority to levy upon each acre of land in the district, not to exceed twenty-five cents per acre, as a level rate, to be used for purpose of paying expenses of organization, for topographical and other surveys, for plans of drainage, for expenses of assessing benefits,” etc., “before entering upon the main work of drainage. Any district which may have proceeded without such levy may . . . make such level assessment, . . . and such levy may be made although the work proposed may have failed or have been found impractical.” Held, that the section is constitutional. If it be objected that no judicial finding of benefits is required, it will be answered that the Legislature has seen fit to entrust to the judicial department the establishment and territorial limitation of the benefit district in a proceeding in which the question whether or not each tract included will be benefited is directly involved. Having expressed its will as to the principles which should govern the distribution of these taxes upon the land so found to be benefited the Legislature has left the necessary amount of the assessments to be ascertained by the authorities of the district, as it leaves like questions of municipal taxation to its municipal. agencies. Again, if it be objected that it might be developed by the work, and therefore it must be assumed to have been contemplated by the law, that there will be no resulting increment, which, under the name of benefits, constitutes the only constitutional support for this class of taxation, it will be answered that, when the organization of a drainage district has reached the stage where the tax in question may be levied, the situation is: The Legislature has designed an important public wo'rk and has found that its accomplishment will result in such benefit to the lands included in its scope as to justify the assessment of the entire cost as a special tax against them. The power to tax necessarily includes the power to raise the money in such time and manner as is necessary to accomplish the purpose for which the tax is levied.
    7. CORPORATIONS: Charter: Retrospective’ Laws: Obligation - . of Contract. The charter of a public corporation does not constitute a contract with its members that the laws it was created to administer will not be changed; and the State is still at liberty, as to them and as to the corporation, to continue, for example, its efforts to improve its methods of taxation.
    Appeal from Cape Girardeau Circuit Court. — Hon. Charles B. Faris, Judge.
    Aeeirmed.

      Giboney HoucTt and Davis & Hardesty for appellants.
    (1) “The constitutionality of a law is to be tested not by what has been done but what may by its authority be done.” Stuart v. Palmer, 74 N. Y. 183; Agens v. Mayor, 37 N. J. L. 420; Norwood v. Baker, 172 U. S. 269. (2) Sec. 5538, E. S. 1909, violates sections 21 and 30 of article 2 of the State Constitution and amendment 5 and section 1 of amendment 14 of the United States Constitution by depriving plaintiffs of property for public use without compensation apd without due process of law. (a) Due process of law includes the idea of compensation for property taken for public use. Railroad v. Chicago, 166 U. S. 241; Water Supply Co. v. Brooklyn, 166 U. S. 695; Norwood v. Baker, 172 U. S. 269. (b) “Special assessments” are unconstitutional unless founded upon either a legislative or a judicial finding of “special benefits,” i. e. “compensation,” for the asséssment exacted for public use. Morrison v. Morey, 146 Mo. 561; Land & Stock Co. v. Miller, 170 Mo. 249; Levee Co. v. Hardin, 27 Mo. 496; St. Louis v. Oeters, 36 Mo. 456; Kansas City v. Ridenour, 84 Mo. 258; St. Joseph v. Anthony, 30 Mo. 537; St. Louis v. Rankin, 96 Mo. 497; Independence v. Gates, 110 Mo. 374; Kansas City v. Ward, 134 Mo. 172; Clinton ex rel. v. Henry County, 115 Mo. 557; Norwood v. Baker, 172 U. S. 269. (c) A legislative finding of such “special benefits” under section 5538, in the case, at bar, will be vacated as a thing palpably false. Norwood v. Baker, supra; McCormick v. Patehin, 53 Mo. 36; Zoeller v. Kellogg, 4 Mo. 163; Corrigan v. Gage, 68 Mo. 541; Cooley on Taxation (2 Ed.), chap. 20; Hammett v. Philadelphia, 65 Pa. St. 146; Agens v. Mayor, 37 N; J. L. 416; Davidson v. New Orleans, 96 U. S. 97; Loan Ass ’n v. Topeka, 20 Wall. (U. S.) 655. (d) No judicial finding on the amount of “benefits” assessable to the 'land is, by any section of the drainage law, required, or provided for, as a foundation for levying the assessment under section 5538. Secs. 5496 to 5499, 5519 and 5538, R. S. 1909; Charles v. City of Marion, 98 Fed. 166; Moss ,v. Whitzell, 108 Fed. 579; Railroad v. Chicago,166 U. S. 241; Davidson v. New Orleans, 96 U. S. 104; Cooley on Constitutional Limitations, pp. *356, *357; 2 Story’s Const. (Cooley’s Ed.) sec. 1956; Stuart v. Palmer, 74 N. T. 191; Violett v. Alexandria, 92 Va. 561. (3) The benefit principle being absent from sec. 5538, the assessment therein provided for is clearly general, and, if general, then violative of the Missouri Constitution in respect to section 3 of article 10 requiring taxes to be uniform, section 4 of article 10 requiring all property to be taxed in proportion to its value, and sections 11 and 12 of article 10 limiting the amount of tbe aggregate rates of taxation. Agens v. Mayor, 37 N. J. L. 416; Norwood v. Baker, 172 U. S. 269; Morrison v. Morey, 146 Mo. 564. (4) Its retrospective character is another reason why section 5538 conflicts with the “due process of law” requirement of both the State and Federal Constitutions. Furthermore, being retrospective, it impairs the obligation of contracts in violation of section 15 of article 2 of the State and section 10 of article 1 of the Federal Constitution, and comes within the direct prohibition of section 15 article 2 of the Missouri Constitution, forbidding retrospective legislation. Leete v. Bank, 115 Mo. 200; Westervelt v. Gregg, 12 N. Y. 202; Norris v. Beyea, 13 N. Y. 273; Holmes v. Holmes, 4 Barb. 295; St. Louis to use v. Clemens, 52 Mo. 144; In re Pell, 171 N. Y. 48; State ex rel. v. Adams, 44 Mo. 570; Dartmouth College v. Woodward, 4 Wheat. 518. (5) If this court declare the ‘ ‘ preliminary information ’ ’ constitutes a “betterment to the land” which can be taxed as a “benefit,” it takes a position adverse to all prior adjudications on kindred cases in England and America. The single case cited by respondents (Railroad v. Pierce, 23 L. R. A. [N. S.] 286) intensifies this statement, for the preliminary tax was there laid by virtue of an election within the district, and the tax was therefore voluntary and self-imposed. Furthermore, this court would be bound to recede from the doctrine in the future application of such a principle to public improvement cases constantly coming before this court. Kansas City v. O’Connor, 82 Mo. App. 660, shows one line of cases that would have to be overruled in order to uphold this law, namely, those declaring special assessments for sprinkling invalid for lack of the benefit principle. Kansas City v. Railroad, 28 L. R. A. (N. S.) 669, is the most important decision on which we rely — a decision by this court— virtually declaring that the landowner must be guaranteed the “special benefits” for which he is charged, before this court will uphold an assessment for such special benefits. But the law in question boldly says it ignores the principle of benefits. If this court upholds this law it will overrule and upheave its adjudications on public improvements and then later on be bound to come back to those adjudications and reinstate them.

      Oliver S Oliver for respondents.
    (1) The Legislature may by its own act fix the territorial limits of special assessment districts, and by its own act determine the amount of. the assessment, or the Legislature may delegate those powers to an agency created by it. Drainage Dis. v. Railroad, 139 S. W. 330; Land and Stock Co. v. Miller, 170 Mo. 240; Levee Co. v. Hardin, 27 Mo. 495; Levee Co. v. Meier, 39 Mo. 53; Morrison v. Morey, 146 Mo. 543; Prior v. Construction Co., 170 Mo. 439; Asphalt Co. v. French, 158 Mo. 534; Meier v. St. Louis, 18Q Mo. 391; Hernán v. Railroad, 206 Mo. 179; Hernán v. Allen, 156 Mo. 534; Spencer v. Merchant, 125 U. S. 345; French v. Asphalt Co., 181 U. S. 324; Webster v. Fargo, 181 U. S. 394; Ross v. Supervisors, 1 L. R. A. (N. S.) 431; Catón v. Drainage Dis., 112 S. W. 145; Cooley on Taxation (1 Ed.), p. 449. (2) It is within the power of the Legislature to charge the property within the special assessment district, at a level rate, with the cost of the improvements, and apportion the same either according to the front foot rule, or according to the area (acreage) rule. In either event it acts within constitutional limits. Drainage Dis. v. Railroad, 139 S. W. 330; Levee Co. v. Hardin, 27 Mo. 495; Levee Co. v. Meier, 39 Mo. 53; Prior v. Construction Co., 170 Mo. 448; Meier v. St. Louis, 180 Mo. 391; Asphalt Co. v. French, 158 Mo. 534; N. P. R. Co. v. Pierce Co., 23 L. R. A. (N. S.) 286; Paving Co v. Fair Assn., 231 Mo. 589; Pleadwell v. Glass Co., 151 Mo. App. 51; Construction Co. v. Shovel Co., 211 Mo. 531; Spencer v. Merchant, 125' TJ. S. 345; French v. Asphalt Pav. Co., 181 TJ. S. 324; Wright v. Davidson, 181 TJ. S. 371; Farm Co. v. Detroit, 181 TJ. S. 395; Detroit v. Parker, 181 TJ. S. 399; Webster v. Fargo, 181 TJ. S. 394; Munsen v. Board, 43 La. Ann. 15; Wallace v. Shelton, 14 La. Ann. 498; Catón v. Drainage Dis., 112 S. W. 145; Sheley v. Detroit, 45 Mich. 431; Cremer v. Allen, 3 Mo. App. 548; Cooley qn Taxation (1 Ed.), p. 454. ((3) The Legislature may apportion the cost of the improvement upon the property in the district according to the frontage or area rule without judicial inquiry as to the value or benefits the property assessed will receive, and this will not constitute a taking of private property without due process of law, under either State or Federal Constitution. Spencer v. Merchant, 125 TJ. S. 345; French v. Paving Co., 181 TJ. S. 324, 158 Mo. 534; Tonawanda v. Lyon, 181 TJ. S. 389; Webster v. Fargo, 181 TJ. S. 394; Farm Co. v. Detroit, 181 TJ, S. 395; Detroit v. Parker, 181 TJ. S. 395; Wormley v. District of Columbia, 181 TJ. S. 402; Shumate v. Heman, 181 U. S. 402; Heman v. Allen, 156 Mo. 534; Keithe v. Bingham, 100 Mo. 300; Smith v. Worcester, 182 Mass. 232; Heman v. Gilliam, 171 Mo. 264; St. Charles ex rel. v. Deemar, 174 Mo. 124; Meier v. St. Louis, 180 Mo. 391; Ross v. Gates, 183 Mo. 347; Asphai Co. v. Munn, 185 Mo. 565; People ex rel. v. Pitt, 169 N. Y. 521; Arnold v. Knoxville, 115 Tenn. 210; Hagar v. Reclamation Dist., Ill TJ. S. 701: on Taxation (1 Ed.)r p. 36; Prior v. Construction Co., 170 Mo. 439; Construction Co. v. Shovel Co., 211 Mo. 532; Williams v. Eggleston, 170 H. S. 304; Roofing Co. v. Fair Assn., 231 Mo. 589; Ross v. Supervisors, 1 L. R. A. (N. S.) 437; Page & Jones on Taxation by Assessment, see. 123. (4) The constitutional provision prohibiting the taking of private property for public use without compensation, is a limitation on the exercise by the State of the right of eminent domain, and not a limitation on the taxing power. Drainage District v. Richardson, 139 S. W. 576; Keith v. Bingham, 1 on Mo. 306; Hernán v. Schnlte, 166 Mo. 419; St. Louis v. Buss, 159 Mo. 12; Oilman v. Sheboygan, 67 U. S. 510; Dillon on Municipal Corporations (3 Ed.), sec. 738; Page & Jones on Taxation by Assessment, sec. 110; Construction Co. v. Shovel Co., 211 Mo. 531; Asphalt Co. v. French, 158 Mo. 534; 181 U. S. 324; St. Joseph v. Farrell, 106 Mo. 437; Cooley on Taxation (1 Ed.), p. 430, 431. (5) A legislative determination of the benefits derived! or' the necessity and advisability of a local assessment is conclusive and final, and is not subject to judicial review. Prior v. Construction Co., 170 Mo. 451; Asphalt Co. v. French, 158 Mo. 534, 181 U. S. 324; Levee Co. v. Hardin, 27 Mo. 495; Chadwick v. Kelly, 187 U. S. 540; St. Joseph v. O’Donoghue, 31 Mo. 345; Meier v. St. Louis, 180 Mo. 391; Hagar v. Reclamation Dist., Ill U. S. 701; Railroad v. Paving Co., 197 U. S. 430; Irrigation Dist. v. Bradley, 164 U. S. .112; People v. Brooklyn, 4 N. T. 419; Railroad v. Seattle, 12 L. R. A. (N. S.) 121; Smith v. Worcester, 182 Mass. 232; Spencer v. Merchant, 100 N. T. 585, 125 U. S. 345; Cooley on Taxation (1 Ed.), p. -446. (6) A legislative finding of benefits will be presumed, after an assessment has been authorized. Both courts and legislatures take notice of the topography of the State, and that wet, swampy lands subject to overflow will be rendered more habitable and productive, and that the public health will be benefited by removing the water which causes the unhealthy conditions. Railroad v. Seattle, 12 L. R. A. (N. S.) 121; Drainage Dist. v. Railroad, 139 S. W. 330; Land Co. v. Miller, 170 Mo. 240; Construction Co. v. Shovel Co., 211 Mo. 554; Prior v. Construction Co., 170 Mo. 439; Meier v. St. Louis, 180 Mo. 391; Irrigation Dist. v. Bradley, 164 U. S. 112; Railroad v. Drainage Com’rs, 200 U. S. 561; Hagar v. Beclamation Dist., Ill U. S. 701; French v. Asphalt Co., 181 IT. S. 324; Bailroad v. County, 23 L. B. A. (N. S.) 286; State ex rel. v. Commissioners, 60 L. B. A. 161; Smith v. Worchester, 182 Mass. 232; Bailroad v. Asphalt Co., 197 IT. S. 430; Cooley on Taxation (1 Ed.), p. 430, 450. (7) The act of the Legislature in levying an assessment for a definite sum against each lot of land for special improvements is conclusive alike of the necessity of the work and of its benefits to the property assessed, and the Legislature in so doing is not compelled to give notice to the parties resident within the district or to give a hearing before itself, or one of its committees, dr any other tribunal, as to the question whether the property so included within the district is in fact' benefited. Parson v. District of Columbia, 170 IT. S. 45; Goodrich v. Detroit, 184 IT. S. 432; Chadwick v. Kelly, 187-IT; S. 540; Bailroad v. Paving Co., 197 IT. S. 430; Cooley on Taxation (2 Ed.), p. 149; Williams v. Eggleston, 170 IT. S. 304; Bamsey County v. Lewis Co., 82 Minn. 400; Jones & Page on Taxation by Assessment,, sec. 123. (8) “The provisions of article 10 of the Constitution of Missouri in regard to taxation, are applicable to taxation in the ordinary acceptation of the term, and are inapplicable to (these) special assessments.” Meier v. St. Louis, 180 Mo. 408; Farrar v. St. Louis, 80 Mo. 379; St. Joseph v. Owen, 110 Mo. 445; Mobile Co. v. Kimball, 102 IT. S. 691; Levee Co. v. Hardin, 27 Mo. 495; Cooley on Taxation (1 Ed.), p. 444; Page & Jones on Taxation, by Assessment, sec. 147; Construction Co. v. Bailroad, 206 Mo. 179.
   BBOWN, C.

This is a suit by the owners of lands in the defendant drainage district, which was incorporated by the judgment of the Butler County Circuit Court, November 30, 1907, under the provisions of article 3, chapter 122, Bevised Statutes 1899, as amended by the Act of April 8, 1905. The object of the suit is to enjoin the collection of a tax of twenty-five cents per acre upon the lands of plaintiffs, in common with other lands of the district, levied under the provisions of the Act of June 1, 1909, which is now section 5538, Revised Statutes 1909. The defendants demurred to the petition, and the issue of law so raised was tried upon the following stipulation:

“It is admitted that the only question in controversy in this cause is as to the constitutionality of section 5538 of the Revised Statutes of Missouri 1909.
“If the court should find on demurrer to plaintiffs’ petition that section 5538 is a valid and legal section under the Constitution of Missouri and of the United States, the demurrer should be sustained and plaintiffs’ bill dismissed.
“If on the other hand the court shall find said section violates either the Constitution of Missouri or of the United States, then said demurrer should be overruled and judgment entered accordingly. Each party reserves the right to appeal from the judgment of the said circuit court.”

The demurrer was sustained and final judgment for defendants entered, from which this appeal is taken.

It was contended in the trial court that the section referred to (Sec. 5538, R. S. 1909) is in contravention of sections 3, 4, 11, and 12 of article 10, and sections 4, 15, 21 .and 30, of article 2, of the Constitution of Missouri, and of section 1 of the Fourteenth Amendment to the Constitution of the United States. If this position is well taken on any of these grounds the judgment of the trial court should be reversed; otherwise it must be affirmed.

I. That the State, by the Legislature, has the power to create corporations for the purpose of reclaiming or improving swamp and overflowed lands by ditches and drains and levies, in districts prescribed by it, or to be ascertained and fixed by such appropriate instrumentalities as it may provide, is no longer a question in this State. Nor is it an open question that the instrumentality so created may be invested with all the necessary power and authority to • construct and . , . , , . . maintain whatever works may be necessary to accomplish such object, and to raise the funds to pay for the same by assessment on the lands to be benefited thereby. [Egyptian Levee Co. v. Hardin, 27 Mo. 495; Columbia Bottom Levee Company v. Meier, 39 Mo. 53; Mound City Land & Stock Company v. Miller, 170 Mo. 240; Squaw Creek Drainage District v. Turney, 235 Mo. 80; Morrison v. Morey, 146 Mo, 543; State ex rel. v. Chariton Drainage District, 192 Mo. 517; State ex rel. v. Taylor, 224 Mo. 393; Little River Drainage District v. Railroad, 236 Mo. 94.] These corporations, as is said in the most of the cases cited, are, when formed, public subdivisions of the State, exercising the powers granted them for the purposes of their creation, within their territorial jurisdiction, as fully, and by the same authority, as the municipal corporations of the State exercise the powers vested by their charters. That the special taxes they are authorized to levy and collect upon and for the benefit of the lands included in their disc|0 no-(; come within the provisions of article 10 of the State Constitution invoked by the appellants; has long been settled, and has passed from the realm of legitimate discussion. Appellant contends, however, that the flat tax of twenty-five cents per acre has no relation whatever to benefits to the land so taxed. In other words, it must either be an assessment for benefits to the lands to which it is applied, or such a general tax for governmental purposes as is required by the Constitution to He uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and with respect to which all property subject to taxation must be taxed in proportion to its value. No kind of governmental exaction imposed upon property under color of the taxing power, and lying between or outside these two classes, it is contended, constitutes due process of law, and every such exaction is a taking of private property for private use, or for public use without just compensation.

The taxing power is an incident to every function of the State, but under our system of government it cannot stand alone. Every tax must rest on a public purpose to which its proceeds must be devoted. The police powers on the other hand, as was said by Chief Justice Waite in Munn v. Illinois, 94 U. S. 113, 125, quoting from Chief Justice Taney in the License Cases, 5 How. 583, “are nothing more or less than the powers of government inherent in every sovereignty, . . . that is to say, . . . the power to govern men and things.” It calls to its aid the subordinate powers — the taxing-power, and the power of eminent domain — and their extent is then measured by its purposes. These subordinate powers, each in its sphere, have for their purpose the absolute taking of private property for public use. General taxation compensates the taxpayer for this taking with all those advantages which result to him from the maintenance of the government; such as the protection of person and property, the making and execution of laws for the promotion of the general welfare of the people with respect to both person and property, and the general readiness of such an organization to meet all contingencies involving their interests. In selecting the subjects of this class of taxation, and in the assessment and levy of the taxes, it is not expected that even approximate perfection will be attained. The discretion of the Legislature, subject only to well-defined constitutional restrictions, must be full and untramelled; otherwise revenue laws would never pass the. region of judicial debate into the region of execution. They would be relegated to that field of discussion now occupied by theories being tried out in the forum of the people, to be adopted or rejected as the public judgment shall determine. In these respects the Legislature is within its discretion where it has kept in view those fundamental principles prescribed by the Constitution, and exercised the legislative judgment in the methods adopted for carrying them out. This legislative discretion applies equally to the field of special taxation which lies between the imposition of taxes for general governmental purposes and the exercise of the right to eminent domain, and sometimes so close to either that they seem to overlap and mingle.

The right to tax through governmental agencies in cases like this depends upon the truth that the development of the lands of the State in productiveness and value, as well as the promotion of the health and comfort of the people, is a matter of governmental concern; and where such improvements are made necessary by local conditions which greatly impair the value of the lands of an entire district, and the primary result of their accomplishment will be a corresponding benefit to all, experience has shown that the State is the only power than can so combine the elements involved, that each may bear a fair and just proportion of the cost. That this proportion should bear some relation, in theory at least, to the benefits accruing to the property, seems fair and just, and is the general result toward which the efforts of different legislatures, including our own, are directed. Referring to the legislative discretion in this respect, Judge Napton, in Egyptian Levee Company v. Hardin, 27 Mo. 495, 498, said:

“In every form of taxation, whether general or local, it is certainly desirable and proper that the burden should be distributed as near as may be in proportion to the benefit derived; and constitutional injunctions and restrictions, where they have been attempted on this subject at all, are designed to promote this end. But where there is an absence of constitutional provisions, it is not in the power of the courts to enforce any fancied scheme of equality seeming to them more just than the. one adopted by the Legislature. The latter department of government is wisely entrusted with the entire control of this subject; and if practical injustice is done, the remedy is in the hands of the people. Equality of taxation may however be regarded as one of those Utopian visions which neither philosopher nor legislator has ever yet realized.”

That is probably the pioneer case in this court involving the subject of land reclamation in this connection, and but few cases have had the fortune to be approved by this court as frequently and unreservedly, or cited with more favor in other jurisdictions. The levee district had been chartered and organized under an act of the General Assembly approved March 2, 1855 (Laws 1855, p. 73), authorizing the assessment and collection of a flat tax of fifty cents per acre for the prosecution of the work contemplated. This amount was, by a subsequent act, raised to one dollar per acre and was, under the original act, to be levied by the directors of the corporation. As indicated by the extract quoted, the act was sustained by this court. It is safe to say that the doctrine is firmly established in this State that the Legislature, acting within its constitutional powers, may fix the territorial limits of special taxing districts, and may also fix the actual or maximum amount of special assessments, which it may place at a level rate, founded upon a unit of area or frontage, or at a rate founded upon a pro* .seeding to ascertain the actual benefit accruing to each particular tract; or it may delegate any or all these powers to an appropriate agency to be chosen or ■created by it. [Little River Drainage District v. Railroad, supra; Columbia Bottom Levee Company v. Meier, supra; Meier v. St. Louis, 180 Mo. 391, 408, and cases cited; Mound City Land and Stock Company v. Miller, supra; St. Joseph to use v. Farrell, 106 Mo. 437; Prior v. Construction Co., 170 Mo. 439, 448, and cases cited.] When all this has been done by valid legislation, founded upon those principles of public expedience to which we have referred, “the owner of the property in the district cannot be heard to contend in the court that his property was not in fact benefited, or to the amount assessed in accordance with such apportionment.” [Meier v. St. Louis, supra; Prior v. Construction Co., supra.]

II. The section against the constitutionality of which, as a whole, this attack is made is as follows:

“As soon as any drainage district shall have been organized under order of the circuit court, and a board of supervisors are elected and qualified, such board of supervisors shall have the .power and authority to levy upon each acre of land in the district, not to exceed twenty-five cents per acre, as a level rate, to be used for purpose of paying expenses of organization, for topographical and other surveys, for plans of drainage, for expenses of assessing benefits and damages and other incidental expenses which may be necessary before entering upon the main work of drainage. Any district which may have proceeded without such levy may, if in the opinion of its board of supervisors it be desirable to do so, make such level assessment for such purpose, and if such items of expense have already been paid in whole or in part from other sources, the surplus shall be paid into the general fund of the district, and such levy may be made although the work proposed may have failed or have been found impractical.”

Up to the time of the passage of this provision in 1909, the Legislature, in dealing with this subject, acted upon the theory that a greater measure of justice would result from an intelligent attempt to ascertain the actual and comparative benefit that would result to each tract, than from any arbitrary method of assessment, and the original act was drawn on this plan. It was soon developed that in order to approximate the desired result, it was necessary that expensive preliminary work be done to develop the contour of the different tracts of land involved in the scheme with reference to the positions and levels available for the contemplated drainage. It. was also thought that the feasibility of the entire enterprise might in some instances depend upon this information. In such cases it is evidently to the interest of all concerned that the facts should be ascertained at the earliest moment and with the least possible expenditure. In these respects the preliminary work was for the purpose of relieving those who should be found to receive the least benefit from the execution of the contemplated plan from an unjust burden, as well as to obtain such data that the cost might be imposed upon those who ought in equity to bear it. Those relieved would in this way become, to that extent, the real beneficiaries. It is not within our province to find fault with the legislative reasoning, and if it were, we doubt whether we could substitute a better or more equitable plan. The appellant attacks it because (1) no judicial finding of “benefits” is required by the law as a foundation for levying this assessment, and (2) that it might be developed by the work, and. we must therefore assume it to be contemplated by the law, that there will be no resulting increment that, under the name of “benefits,” constitutes the only constitutional support for this class of fjL ,. . , taxation. As to the first of these points, we ^iave already seen that the question of benefits is primarily a legislative one. In this case, however, the Legislature has seen fit to entrust to the judicial department the establishment and territorial limitation of the benefit district in a proceeding in which the question whether or not each tract included will be benefited is directly involved. Having expressed its will as to the principles which should govern the distribution of these taxes upon the land so found to be benefited, the Legislature has left the necessary amount of the assessments to be ascer-' tained by the authorities of the district, as it leaves like questions of municipal taxation to its municipal agencies.

What is a“Benefit ” III. The second point stated is predicated upon, or at least strongly illustrated by, that clause of the section which provides -that “such levy may be made although the work proposed may have failed or have been found impractical. ’ ’ Of this provision the appellant argues: “If those landowners to whom the drainage proceedings are in invitum can be compelled to pay this preliminary tax for drainage which, prior to the levy of the tax, had failed and been abandoned as impracticable, then they are made to pay, not on the principle of benefits, but simply to defray the expenses of a fruitless undertaking on the part of the State, and an undertaking in invitum as to them.” This, it is claimed, would violate the several provisions of the State and National Constitutions designed for the protection of private property against the public. The case is not, however, so presented in the record. At the time of the filing of the petition the surveys had been made by the board of engineers constituted as provided by the statute, a plan of drainage reported to and adopted by tbe board of supervisors, tbe commission for viewing the lands and assessing benefits and damages bad been appointed and was then engaged in that work, and tbe tax bad been levied and extended on tbe tax books in tbe bands of tbe collector of tbe revenue for tbe county in which tbe lands are situated. It was stipulated by tbe parties that the constitutionality of tbe section we have quoted is tbe only question in controversy; that if it is a valid and legal section under the State and Federal Constitutions tbe bill is to be dismissed; if not, judgment shall be entered accordingly. If tbe section is valid according to its terms its application to tbe facts of this case is not questioned.'

We have already shown that tbe Legislature bad tbe power to fix tbe boundaries of tbe district to be benefited by tbe work by referring tbe same to judicial ascertainment, and that,' having done this, its power extended to tbe levy of a tax by special assessment upon tbe entire property of tbe district so ascertained to be benefited, to be distributed in such manner as, in tbe legislative judgment, would secure equality. It no longer lay in tbe mouth of tbe owner of the included property to deny that be was benefited to tbe extent of tbe burden so imposed, whether by a uniform assessment founded upon tbe unit of area, or by attempting to differentiate tbe peculiar conditions pertaining to each tract. In this case the Legislature combined, tbe two, and in so doing was equally within its powers. Tbe last clause of tbe section in dispute gives no warrant for tbe discontinuance of tbe work. It simply recognizes, as tbe court would recognize bad it not been written, that after expensive preliminary work such enterprises may possibly be found unfeasible, and that unforeseen accidents or conditions either physical or financial frustrate tbe wisest plans.

Our sediment-carrying rivers may change their courses through their alluvial plains so that a scheme founded upon conditions of this year may be entirely unsuitable, as respects both cost and working details, to the conditions of next year; or financial disaster may sweep money from its ordinary channels so that the excavation that was made yesterday may lie incomplete until obliterated by the floods of tomorrow. All these things are in human ■ contemplation and even Justice is not so blind that she will not take notice of them.

It is not to be contemplated that in such cases the loss should be made to fall upon the individual whose hands and head with infinite labor have accomplished the details of plan and execution up to that point. These things must be paid, and this case resolved itself into a question of raising money for such purpose which may be concretely stated as follows: Is it within the statutory powers of the Legislature, in providing for a work of this # character, to assess its cost against the property to be benefited by its completion, so that payment shall be exacted from time to time as it shall become necessary to expend the money for.its execution? It is plain that in answering this question there can be no difference in principle resulting from the character of the work, if any, already completed when the collection is sought to be made; for all work,- whether purely preliminary or purely constructive, is alike a necessary part of the whole.-

. Whether we consider the public interest in these enterprises from the standpoint of public health or material prosperity, they are alike local in their character in all those senses in which the sanitation and traffic conveniences of the city are local to the municipality. The growth and prosperity of the city resulting from these things are matters of great public concern affecting the State at large. So the prosperity and growth of the productive communities represented by its farms are equally matters of general public concern. That concern is represented by the differenee between a State composed of bogs and marshes not only unproductive but unhealthy, and a State in which the lands yield bountifully to the call of the husbandman, and breathe health instead of miasma. In a material sense improvements which produce those desirable changes find their first and most direct effect in the values of land. In the city, farms become lots, and their value is frequently multiplied by thousands; while in the reclamation districts we find localities where large bodies of land not worth the taxes, have, by reclamation, become very valuable. All these direct benefits may be foreseen and to some extent estimated in figures, and it is just that each community affected by them should take care of the local improvements that produce them, along the same lines that other municipal subdivisions of the State government take care of similar interests. These public enterprises differ from individual enterprises of the same character only in the element that the conditions in which they exist are such that the property of one can only be improved by expenditure that is of like advantage to many, but the political community having been substituted for the individual it is confronted with conditions requiring the same treatment, and its powers are sufficient to the task. The man who contemplates such an improvement, starting only with what an unaided eye tells him of the situation, determines that if will pay him to attempt to apply the remedy. He makes accurate surveys with plans and- estimates, and finds it feasible and does the work, and every class of expense in carrying out the experiment from the time it existed in his mind alone, is a part of the cost of the completed enterprise. If at any time before the completion his work proves the enterprise to be impracticable, he has still accomplished in behalf of his land one of the things which he set out to do. He has demonstrated once for all either that the work'is impracticable, or that the conditions are not yet ripe for its accomplishment. If this result cannot be said to he a benefit, then every man who expends time or money in tentative experiment upon his land is justified only if he succeeds and has done nothing useful if he has failed.

Applying these principles to this case we find that the Legislature has designed an important public work and has found that its accomplishment will re suit in such benefit to the lands included in its scope as to justify the assessment of the entire cost as a special tax against them. That it has the power to do this is, as we .have seen, no longer open to question. To accomplish the purpose it is necessary to pay for the property used and labor employed in the work and' this can only be done by the proceeds of public taxation, and taxes, as we have already said, can only he levied for the accomplishment of a public purpose. The power to tax necessarily includes the power to raise the money in such time and manner as is necessary to accomplish the purpose for which the tax is levied. Were this not true the power would he an empty one existing only in impracticable theory and not in fact. These principles necessarily apply to every class of taxation, genéral and special. This whole question was necessarily before the court and decided in Corrigan v. Kansas City, 211 Mo. 608, in which a special tax was levied and sustained “for the purpose of maintaining, adorning, constructing, repairing and otherwise improving the parks, parkways, roads, boulevards or avenues” located in West Park District. This tax was an annual one designed to provide for future work and was held to he collectible.

It will hardly he disputed that the State might, out of its general revenues resulting from taxation, pay for The very preliminary work provided for in the section we are considering, or it might authorize the same to he paid out of the contingent fund of the county as was done in State ex rel. v. Taylor, 224 Mo. 393. This can only be done because the purpose is a public one to which the proceeds of taxation may be lawfully applied. The public purpose which justifies this application can only be the promotion of the health and general welfare of the community by the betterment of the condition of its lands, and is of itself the same purpose upon which the power to impose the special assessment rests. It follows that in this respect it is a valid assessment.

IY. It is contended that the section in question is void because it creates a rule of taxation not in existence at the time the defendant drain-aS’e district was organized and the plaintiffs became members of it, and it is therefore retrospective as to them and impairs the obligation of a contract constituted by its charter. This question does not some within the terms of the stipulation under which the sole issue was tried upon the petition and demurrer. Instead of questioning the constitutionality of the law, it simply goes to its application to the facts of this case. We do not hesitate, however, to say that the charter of a public corporation does not constitute a contract with its members that the laws it was created to administer will not be changed; and the State is still at liberty, as to them and the corporation, to continue its efforts to improve its methods of taxation with respect to these subjects.

The judgment of the circuit court for Cape Girardeau county is affirmed.

PER CURIAM HST BANC. — The foregoing cause coming into Banc from Division One and being reheard there, the opinion of Brown, C., is adopted as the opinion of the court,

Brown, J., concurring in the result, Bond, J., dissenting, and Faris; Jv not sitting.