author: DAVID E. BLAIR, J.

text:
    THE STATE ex rel. CITY OF CARTHAGE v. GEORGE E. HACKMANN, State Auditor.
    In Banc,
    April 1, 1921.
    1. CITY INDEBTEDNESS: Maximum Limit: Last Previous Assessment. The assessment mentioned in Section 12 of Article 10 of the Constitution limiting the indebtedness that a city of the third class may incur in any year to “five per centum on the value of the taxable property therein, to be ascertained by the assessment next before the last assessment for state and county purposes, previous to the incurring of such indebtedness,” means a complete assessment, and the words “previous to the incurring of such indebtedness” mean previous to the authorization of the indebtedness at the election held by'the voters of the municipality. So that where the election was held on September 16, 1919, and the State Board of Equalization had not completed the equalization of the 1918 assessment and certified its action thereon previous to said September 16, 1919, the assessment of 1916 was the “next before the last assessment,” and must be used as the measuring rod in determining whether the bonds authorized at such election, added to the city’s then existing indebtedness, exceeded five per cent of the value of the taxable property therein.
    2. -: -: Existing Indebtedness: Tor City Waterworks. In determining whether bonds authorized at an election to be issued by a city exceeds the five per cent of the value of the taxable property mentioned in Section 12 of Article 10 of the Constitution, existing indebtedness due to the issuance of bonds for the construction of municipal' waterworks is not • to be considered. In view of Section 12a and the amendment of said Section 12a adopted in 1920, the indebtedness authorized by said Section 12a for the purpose of constructing or purchasing waterworks, electric or other light plants, to be owned exclusively by the city, is not to be treated as a part of the existing indebtedness in determining the validity of a subsequent issue of bonds under the authority of Section 12 of Article 10. [Overruling State ex rel. Columbia v. Wilder, 197 Mo. 1.]
    3. CONSTITUTIONAL CONSTRUCTION. The rules laid down by the courts for the construction of constitutional provisions are the same as those governing the construction of statutes.

      4. -: Adoption of Judicial Construction: Subsequent Legislative Construction. It is a mere legal fiction that when the people adopted an amendment to a section of the Constitution they adopted the construction previously placed upon it by the Supreme Court; hut the necessity of adopting that legal fiction is avoided by a legislative act, passed prior to the adoption of the amendment, which places a meaning on the constitutional provision different from that previously placed upon it by judicial construction.
    Mandamus.
    Writ issued.

      Frank R. Birkhead for relator.
    (1) Tile proper assessment to' be used as a basis of determining the city’s debt limit is that based upon the ownership as of June 1, 1917, and not that as of June 1, 1916, as contended by the respondent. The record shows that the 1918 assessment of Jasper County property was practically completed and certified to the county clerk prior to September 16, 1919, the date of the special bond election, although the State Board of Equalization had not actually adjourned. In fact the State Board did not finally adjourn until February 19, 1920. (2) In calculating its debt limit, the City of Carthage is entitled to exclude its outstanding bonds issued to construct its waterworks owned exclusively by the city. Sec. 12a, Art. 10, Mo. Constitution. This question was before this Court in 1906 in the case of State ex rel. City of Columbia v. Wilder, 197 Mo. 1. Judge Valliant, wrote the dissenting opinion, concurred in by Judges Brace and Lamm, and his views are correct. The $100,000 outstanding waterworks bonds was the only indebtedness of said city at the date of the special election on September 16, 1919. Therefore by excluding such indebtedness these street paving bonds are well within the five per cent limit. (3) The construction of a section or provision of the Constitution must not be so strict or technical as to defeat the evident objects and purposes of its creation. Missouri Loan Bank v. How, 56 Mo. 59; State ex rel. v. McGowan, 138 Mo. 187,192; 25 Biding Case Law, 1077; 12 C. J., 700. (4) The act under which these street paving bonds were voted and issued expressly provides that cities in ascertaining their debt limits in issuing bonds under such act, may exclude outstanding waterworks bonds. Sec. 92'56a, p. 570, Laws 1919. (5) The Fiftieth General Assembly proposed two constitutional amendments amending Sections 12 and 12a of Article 10, both of which were adopted by the people at the last general election. One of these amended said article by striking out Section 12 and adding a new section in lieu thereof, to be known as Section 12. The first ten lines of the new Section 1.2 are identical with the same part of the original section, the words “including existing indebtedness” being retained. This same General Assembly enacted the act above referred to (Laws 1919, pp. 569 to 572), which clearly excludes from the “existing indebtedness” the indebtedness of cities incurred under the provisions of Section 12a. It cannot reasonably be said that the law-makers intended that Section 12 requires cities to calculate their outstanding waterworks and light bonds as part of'their “existing indebtedness” in the face of an act passed by the same body which expressly declares that such cities may disregard such bonds, in ascertaining their debt limit. 12 O. J; 714; Cook County v. Healey, 222 111. 310. The other amendment proposed and ratified, amended Section 12a so that said section now applies to all cities with less than 30,000 inhabitants, and provides further that such cities may become indebted in a larger amount than specified in Section 12, not exceeding an additional ten per cent of the value of taxable property therein for the purpose of purchasing or constructing waterworks, lighting plants and ice plants. Here again is seen the dominant idea and purpose of increasing the taxing power of cities that they might own these utilities.

      Jesse TV. Barrett, Attorney-General, and Robert J. Smith, Assistant Attorney-General, for respondent.
    (1) The facts and figures appearing in relator’s petition show that the indebtedness is in excess of the limit fixed by the Constitution of this State. See. 12, Art. 10, Mo. Constitution; State ex rel. v. Wab. Railroad, 251 Mo. 141; State ex rel. v. Gordon, 251 Mo. 309. (2) Petition shows upon its face that said bonds are null and void and should not be registered, and are in excess of limitation fixed by Section 12, Article 10 of the Constitution, and contrary to the provisions of Section 12a, Article 1.0, and are therefore invalid. State ex rel. City of Columbia v. Wilder, 197 Mo. 1; State ex rel. v. Wabash Railroad, 251 Mo. 141; State ex rel. v. Gordon, 251 Mo. 303. Section 9256a, p. 570, Laws 1919, is contrary to the provisions of the Constitution, and did not authorize this election as claimed by relator; it'certainly could not be contended that the proposed amendment by the Fiftieth General Assembly amending Section 12 and 12a of the Constitution approved by the people at the last general election could affect the (lection of September 16, 1919. Sec. 12, Article 10, Mo. Constitution; Sec. 12a, Article 10, Mo. Constitution.
   DAVID E. BLAIR, J.

On 'January 11, 1921, the City of Carthage as relator filed its petition for a writ of mandamus to compel respondent as Auditor of the State of Missouri to register bonds in the sum of $150,000, authorized by the relator at a special election held September 16, 1919, for the purpose of paying a portion of the cost of paving in said city, as provided for by Laws of 1919 at pages 569 to 572 inclusive.

The regularity of the proceedings of said city in said election and the subsequent proceedings before the city council and the authority of such city to issue bonds of this character are not disputed. Respondent refused registration of said bonds on the ground that the issue of $150,000, added to the then existing indebtedness of relator city, exceeded the limit of indebtedness of said city as fixed by Section 12 of Article 10 of the Constitution.

Respondent waived the issuance of the alternative writ of mandamus, and filed his demurrer to the petition, thereby admitting the truth of all facts well pleaded in the petition. Further facts necessary to an understanding of the case will be set out in the opinion.

I. Relator contends that the amount of indebtedness it is authorized to incur under Section 12, Article 10, of the Constitution of Missouri, should be ascertained from and measured by the assessment of 1917, and not by the assessment of 1916. The proV3Si°n of said section limits the indebtedness that relator and other cities may incur in any year to “five per centum on the value of the taxable property therein, to be ascertained by the assessment next before the last assessment for state and county ‘purposes, previous to the incurring of such indebtedness.” The assessments mentioned in this section mean completed assessments., [State ex rel. City of Dexter v. Gordon, 251 Mo. 303; State ex rel. v. Wabash, 251 Mo. 134; Steinbrenner v. St. Joseph, 226 S. W. 890.] The clause “previous to the incurring of such indebtedness” means previous to the authorization of the indebtedness in the election held by the voters of the municipality. [State ex rel. City of Dexter v. Gordon, supra; Steinbrenner v. St. Joseph, supra.] The State Board of Equalization had not completed the equalization of the 1918 assessment and certified its action thereon previous to September 16, 1919, the date of the election, and hence the assessment of 1916 was the “next béfore the last assessment,” and must be used as the measuring rod.

II. The total indebtedness of the City of Carthage existing and' outstanding on September 16, 1919, was $100,000. The value of the taxable' property in said city as determined by the assessment of 1916 was $3,602,153.48, and five per cent thereof was $180,107.67. If the $100,000 existing indebtedness, which is dne to the issuance of bonds for the construction of municipal waterworks, is considered as part of the existing indebtedness, mentioned in Section 12, of Article 10, limited to five per cent of the taxable property, the issue of $150,000 of paying bonds involved in this case is clearly invalid, because it contemplates a bonded indebtedness of $250,-000, or an excess of $69,992.33.

In the case of State ex rel. City of Columbia v. Wilder, 197 Mo. 1, hereinafter referred to as the Columbia Case, the facts were almost identical with those in the instant case, and the decision was adverse to the claims of the City of Columbia. It doubtless was because of the controlling authority of that case that respondent refused to register the bonds of the city of Carthage. In the Columbia Case the facts were that the city had an existing indebtedness of $140,700, of which $110,000 was issued and sold for the purpose of paying for the waterworks and electric light plant. An additional debt of $10,000 for the purpose of constructing sewers was authorized by election and subsequent city ordinances. The State Auditor refused registration, as here. Five per cent of the value of the taxable property of the City of Columbia was found to be $123,-102.50, so that the total indebtedness, including the bonds issued for waterworks and electric light plant purposes, exceeded such five per cent.

The contention made by the City of. Columbia was that, in view of the amendment of the Constitution designated as Section 12a of Article 10, the $110,000 waterworks and electric light plant bonds should not be considered as part of the existing indebtedness, which cannot exceed five per cent., as provided in Section 12 of Article 10, but should be regarded as falling within the additional five per cent allowance at that time provided by Section 12a, Article 10. Treated thus, the proposed sewer bonds would not have created an excessive indebtedness, and the issue would have been held to be valid. Under that state of facts the court held that the $10.000 issue of sewer bonds was excessive because the outstanding waterworks and electric light plant bonds must be considered as part of the existing indebtedness mentioned in Section 12, Article 10. The issue for sewer purposes was therefore void, and the peremptory writ was denied. That decision was rendered by a divided court. Gantt, J., wrote the majority opinion, in which Burgess, Fox; and Graves, JJ., concurred, and Valliant, J., wrote the dissenting opinion, in which Brace, C. J., and Lamm, J., concurred.

The dissenting opinion of Valliant, J., held-that the constitutional amendment, Section 12a of. Article 1.0, was adopted for the purpose of increasing the taxing powers of the cities embraced in its terms, to enable them to acquire their own waterworks and electric light plants, and the order in which the city might increase the indebtedness was overlooked and not thought of by the General Assembly in submitting the amendment, and was immaterial and unimportant.

It necessarily follows, and relator candidly admits, that if the holding in the Columbia Case is adhered to the peremptory writ must be denied in this case. But relator urges the unsoundness of the conclusion reached by the majority of the judges in the Columbia Case, and asks that -we again review the matter.

There are certain wéll-understood rules laid down by the courts for the construction of constitutional provisions, and they are the same as those governing legislative enactnients. .

It was said in State ex rel. v. McGowan, 138 Mo. l. c. 192, in discussing the general rules of construction of constitutional provisions that: “The organic law is subject to the same general rules of construction as other laws, due regard being had to the broader objects and scope of the former, as a charter of popular government. The intent of such an instrument is the prime object to be attained in construing it.”

In 12 Corpus Juris, 700, it is said: “ The court, therefore, should constantly keep in mind the. object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied,”

And also in 12 Corpus Juris, 702, it is said: “If a literal interpretation of the language used in a constitutional provision would give it an effect in contravention of the real purpose and intent of the instrument as deduced from a consideration of all its parts, such intent must prevail over the literal meaning.”

It can hardly be disputed that, under the limitation fixed by Section 12, Ai'ticle 10, the average city was not able to issue bonds for waterworks and electric light plants in addition to indebtedness created for the erection of a city hall, fire-fighting apparatus, jail, sewers, and other very proper objects of extraordinary municipal expenditures. There were few growing cities that had not used their authority to create bonded indebtedness to such an extent as to forbid them engaging in the ownership and operation of municipal light and water utilities. A demand arose for the extension of municipal activity into this field, and this, no doubt, led to the submission and adoption of Section 12a of Article 10, for the purpose of increasing the debt-making or taxing power of such cities to enable them to engage in municipal ownership of such utilities.

The construction adopted in the Columbia Case makes it impossible to issue bonds for city halls, jails, fire-fighting-apparatus, sewers, city paving, and other very proper purposes in cities which had first autharked bonds for light and water plants. It also prevents those citie's, which had existing indebtedness under the constitutional limit under Section 12, Article 10, and thereafter voted additional bonds under Section 12a, -Article 10, for water and light plants, from voting- bonds for any other purpose until the water and light bonds are paid off below the five percent limitation fixed by Section 12, Article 10, notwithstanding every dollar of the debt for other purposes existing at the time the water and light bonds were issued has been paid off.

An amendment to Section 12a, Article 10, submitted and adopted in 1920, extended the operation of that section to all cities of less then 80,000 population, increased the limit for incurring indebtedness from five per cent of the taxable property value in such cities to ten per cent, and. included the purchase or construction of ice plants as an additional use for such increased debt-making or taxing power. The adoption of said amendment only emphasizes the difficulties under which cities will labor in the future if they are shackled by further adherence to the rule laid down in the Columbia Case. Any city that hereafter authorizes bond issues for waterworks, ice plants, and light plants to its full capacity cannot issue an additional dollar of bonds for any other municipal purpose until not only all existing indebtedness for other -purposes has been paid, but also until such time as more than half its water and light plant bonds have been retired. In other words, the existence of outstanding bonds for light and water plants constitutes a positive obstruction in the path of city growth and developement along other ¡lines. To the extent they are availed of the provisions of Section 12a, Article 10, destroy the benefits of Section 12, Article 10. The framers of the Constitution surely cannot be said to have intended any such harsh and narrow construction as this. In construing the section the court should not adopt such construction, unless no other construction can be arrived at from the language used.

It may be urged that when the people adopted the amendment to Section 12a, Article 10, in 1920, they also adopted the construction placed on Section 12 and Section 12a by this court in the Columbia Case. Of course, this is merely a legal fiction. Probably not one voter in a hundred who voted for the amendment had any actual knowledge of what this court decided in the Columbia Case. While it will not be contented that it is competent for the Legislature to put a construction on a provision of the Constitution in conflict with the construction of this court, it is more reasonable to suppose that the voters in the 1920 election were familiar with the directly opposite construction of Section 12, article 10, made by the General Assembly in 1919, than they were with the construction of this court 11 years before the election was held.

“It is an established rule of construction that, where a constutional provision has received a settled judical construction, and is afterwards incorporated into a new or revised constitution, it will be presumed to have been retained with a knowledge of the previous construction, and courts will feel bound to adhere to it. Prior legislative construction is likewise presumed to have been adopted by subsequent adoption of the provision so construed.” [12 Corpus Juris, 717.]
“If the meaning of the Constitution is doubtful, a legislative construction will be given serious consideration by the courts. . . . A contemporaneous legislative exposition of a constitutional provision is entitled to great deference.” [12 Corpus Juris, 714.]

The law under which relator issued the bonds here in question was enacted in 1919, and, to avoid their invalidity under the construction in the Columbia Case, provides:

“Such bonds when authorized by ordinance shall not exceed including existing indebtedness five per cent of the assessed valuation of the taxable property in said city to be ascertaind by the assessment next before the last assessment for state and county purposes, previous to the incurring of such indebtedness, except that any indebtedness incurred under the provisions of Section 12a of Article 10 of the Constitution of the State of Missouri shall not be considered in construing this section.” [Laws 1919, p. 570.]

The existence of the recent legislative construction at least avoids the necessity of assuming that the 1920 amendment adopted the construction in the Columbia Case.

It may be that a strict and technical construction of the language of Section 12a, Article 10, justifies the conclusion reached in the Columbia Case that indebtedness authorized by Section 12a, Article 10, should be treated as part of the existing indebtedness in determining the validity of subseqeunt issuance of bonds under authority of Section 12, Article 10, but such construction waives aside all considerations based on the history of the difficulties, confronting the municipalities, and gives no weight or importance to the real object 'and purpose of the amendment, and absolutely destroys its beneficial and remedial office. It is not- a necessary conclusion that the clause “including existing indebtedness,” found in Section 12, be construed to include bonds issued under authority of Section 12a.

We think the dissenting opinion in .the Columbia Case is sound. We quote with approval two paragraphs therefrom as follows:

“It is thought, however, that because the waterworks bonds were issued first, that power is exhausted, and that is so if we take the water bonds into this account, because counting those bonds the original five per cent limit has been passed, and the bonds now to be issued are not for the purpose expressed in the amendment. But we do not think that the accidental fact that the water bonds were issued first will deprive the city of the privilege the amendment of 1902: was intended to confer. The purpose — the main purpose — the only purpose of the amendment of 1902, was to increase the taxing power of the cities embraced in its terms to enable them to own their waterworks and lighting plants; that is what the General Assembly had in mind when it proposed the amendment, and it is what the people had in mind when they adopted it. The conferring of taxing power was the dominant thought in the amendment, the order in which the city might incur its obligations was overlooked, was not thought of, it was of no importance, and at most it can now be deemed as an accident of only secondary consideration, yet if we should adopt the strict literal construction contended for by the respondent we would allow the altogether unimportant accidental fact to defeat the main purpose of the amendment. That would be misconstruction. When there is a seeming conflict between the dominant purpose and an unimportant or secondary consideration, the dominant idea must prevail.
“We construe Section 12 and 12a of Article 10 of the Constitution, taken together, to mean that when the amount of indebtedness that the city may incur under the terms of Section 12 is to be estimated, the amount of its indebtedness incurred since the amendment and within the extra five per cent limit of Section -12a, incurred ‘for the purpose of purchasing or constructing waterworks, electric or other light plants, to be owned exclusively by the city so purchasing or constructing the same,’ is not to be taken into the estimate.”

It follows that the case of State ex rel. City of Columbia v. Wilder, 197 Mo. 1, should not longer be adhered to, and should be overruled, and that this court should issue its peremptory writ of mandamus, requiring the registration of the bonds issued by relator. It is so ordered.

Walker, G. J., and J. T. Blair, Higbee, and Elder, JJ., concur; Graves, J., dissents, and adheres to views in case- of State ex rel. City of Columbia v. Wilder, 197 Mo. 1; Woodson, J., dissents.


source: Caselaw Access Project

author: ELDER, J.

license: Public Domain

text:
    CHRIST H. ASEL, Appellant, v. CITY OF JEFFERSON et al.
    In Banc,
    April 1, 1921.
    1. CONSTITUTIONAL LAW: Title: Construction. The constitutional provision requiring the subject of a law to be clearly expressed in its title must be reasonably and liberally construed and applied, due regard being had to its object and purpose, the principal purpose being to prevent surprise and fraud upon the members of the General Assembly by barring the insertion of matter in the body of the bill of which the title gives no intimation.
    2. -: -: Subject: General. So long as the title to a law does not cover legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection, it is not subject to -an objection for generality.
    S -: -: -: Reference to Prior Statute. The mere reference in the title of an act to a previous act, without other description of the subject-matter, gives notice that the new section to be enacted will deal with the same subject contained in the section to be repealed. So that where the title of the Act of 1915 was, “An Act to amend Chapter 84, Article 4, of the Revised Statutes of the State of Missouri, 1909, in relation to. municipal corporations, by adding thereto a new section to be known as Section 9237a,” the title to the Act of 1919, which was, “An Act to repeal ‘An Act to amend Chapter 84, Article 4, of the Revised Statutes of Missouri, 1909,’ in 'relation to municipal corporations as it appears in the Laws of Missouri, 1915, at page 359, and approved March 24, 1915, and to enact a new section in lieu thereof to be known as Section 9237a,” did not violate the constitutional provision requiring the subject of a law to be clearly expressed in its title, although the Act of 1915 provided only for the sprinkling and oiling of streets, and the Act of 1919, in addition to providing for the sprinkling and oiling of streets, provided for their repairing, surfacing and re-surfacing.
    4. -: -: -: -: Caption or- Head-Note of Prior Act. By the title of said Act of 1919 the members of the Legislature were informed that the bill related to municipal corporations and proposed to repeal an act amending Chapter 84 of Article 4 of the Revised Statutes of 1909, appearing in the Laws ot 1915, at page 359, and to enact a new section in lieu thereof, and by reference thereto their attention was directed to said Act of 1915; and by turning to the Act of 1915, they would have found its caption or head-note to be: “Municipal Corporations— Cities of the Third Class — Oiling and Sprinkling Streets — Special Tax Bills,” which, for the pruposes of such reference, became a part of the title to' the Act of 1919, then under consideration, and they would thereby have been specifically informed as to the general subject and nature of the legislation sought to be enacted by the Act of 1919; and since the caption or head-note of the Act of 1915 referred to the “oiling and sprinkling of streets,” the legislators, by referring to it, would readily have realized that the subject of the new section to be enacted by the proposed Act of 1919 would necessarily relate to the care and maintenance of streets, a subject closely related thereto; and since the body of the Act of 1919 continued to treat of the “oiling and sprinkling” of streets, together with the kindred subject of “repairing, surfacing and re-surfacing” thereof, it cannot be held that the Legislature was misled by the title of the Act of 1919, or that said title did not give notice that the body of tha Act of 1919 would contain additional provisions for' repairing, surfacing and re-surfacing of streets.
    5. -: --: Congruous Subjects. The “repairing, surfacing and re-surfacing” of streets are cognate and related to the “oiling and sprinkling” of streets.

      6. CONFLICTING STATUTES: Resurfacing and Reconstruction of Streets: Later Enactment: Remonstrance. Although the Act oí 1919 conflicts with Sections 9254 and 9255 of the Act of 1911, Laws 1911, page 337-341, since the two acts provide for an entirely different method of procedure as to the paving and resurfacing of streets, and in that respect are inconsistent and hoth cannot operate together, yet the Act of 1919, being a later enactment, necessarily repeals the Act of 1911, and proceedings for resurfacing a street based on the Act of 1919 are not invalid because of said conflict, notwithstanding the Act of 1911 makes provision whereby resident owners may protest against any proposed paving while the Act of 1919 contains no such provision.
    7. STREET IMPROVEMENT: Unequal Assessment. Proceedings for the improvement of a street are not, invalid because all propertj owners will be charged the same amount per front foot, regardless of whether the street in front Of the particular property is entirely resurfaced or only holes or depressions therein are patched, the proposed contract being for the whole .improvement, and the cost to be defrayed by a special tax bill on the property fronting or abutting on the streets where the work is done, in the proportion that the linear feet of each lot fronting thereon bears to the total number of linear feet of all property chargeable with the cost. All property in the improvement district is benefited alike and all should bear proportionately the cost, without regard to what particular work is done in front of a given lot; and there is no such unequal assessment as renders the proceeding invalid.
    8. -- — : Tax Bills to Contractor. Under the Act of 1919 special tax bills for the re-surfacing of a street may be issued directly to the contractor dóing the work, or to the city and by it assigned to the contractor.
    Appeal from Cole Circuit Court. — Hon. J. G. Slate, Judge.
    Affirmed.

      Pope & LoJiman for appellant.
    (1) The proceedings are based upon Section 92;37a of the Act of 1919, Laws 1919, p. 572. This act repeals the Act of 1915.. Laws 1915, p. 359. The Act of 1915 provides for only sprinkling and oiling. The Act of 1919, repealing the 1915 Act and enacting a new section in lieu thereof, known as 9237a, in addition to sprinkling and oiling*, provides • that streets may be repaired, surfaced and re-surfaced, while no mention of the repairing, surfacing and re-surfacing thereof appears ill the title. The real subject of the legislation is not clearly expressed in its title, and does not indicate to the people in clear terms the general contents of the bill, but on the contrary, shows a design to mislead and keep from the people the real subject of the legislation. It is unconstitutional so far as it relates to repairing, surfacing and re-surfacing streets. Sec. 28, Art. 4, Mo. Constitution; State v. McEniry, 269 Mo. 228; Wood-wear Hardware Co. v.'Fischer, 269 Mo. 276; State ex rel. v. Revelle, 257 Mo. 538 ¡Williams v. Railroad, 233 Mo. 676; State ex rel. v. Heege, 135 Mo. 112; State ex rel. v- County Court, 102 Mo. 531; State ex rel. Greene County v. Gideon, 210 S. W. 358. (2) Section 9237a provides that streets may be repaired, surfaced and re-surfaced, at the cost of the property owners, without an opportunity to protest, and is directly contrary to Sections 9254, 9255 and 9256, R. S. 1909, as amended by Laws 1911, pages 337-341, in which it is provided by Section 9254, that “repaired as here used shall not include an improvemem where the entire surface of a paving is renowned, but such renewals shall be considered paving,” and by which it is provided by Section 9255 that, before the council shall be authorized to pave any street, they shall declare by resolution such improvement necessary, and cause the resolution to be published in a newspaper in the city, and if no sufficient protest is made, then the council shall have power to cause the improvement to be made. Ranney v. Cape Girardeau, 185 Mo. App. 229; Sec. 9237a, Laws 1919, p. 572; Secs. 9254, 9255 and 9256, Laws 1911, pp. 337, 341; State ex rel. Major v. Aroick. 247 Mo. 290; State ex rel. Gregory v. Brodíe, 161 Mo. App. 545. (3) Under the proceedings contemplated, there will be an equal assessment for an unequal amount of work. Improvements made under Specification No. 1 provide for the re-surfacing of the entire street, while under Specification No. 2, only holes or depressions shall be patched, all property owners paying the same amount per front foot, regardless of the improvement made in front of their property. (4) Under the present proceedings and the notice to paving contractors, the contractor is to be paid with special tax-bills, issued in favor of the contractor. There is no authority under Section 9237a, Laws 1919, authorizing tax-bills to issue to the contractor, or to pay the contractor in tax-bills. The city must do the work and issue tax-bills in its own name, and has no authority to pay the contractor with tax-bills issued to him.

      Leonard M. Bice and Vance J. Higgs for respondent.
    (1) The Act of 1919 does not violate Section 28 of Article 4 of the Constitution. . State ex rel. v. Gordon, 261 Mo. 639; State ex rel. v. Williams, 232 Mo. 56, 75; State v. Brodnax, 228 Mo. 25, 53; State ex rel. v. Yandiver, 222 Mo. 206, 219; State ex. inf. v. Herring, 208 Mo. 708; State ex inf. v. Jockey Club, 200 Mo. 56; O’Connor v. Transit Co., 198 Mo. 622, 633; State v. Doerring, 194 Mo. 398; Elting v. Hickman, 172 Mo. 251; State v. Bixman, 162 Mo. 16; St. Louis v. Weitzel, 130 Mo. 614; State ex rel. v. Bronson, 115 Mo. 275; State v. Morgan, 112 Mo. 212; State ex reí. v. Miller, 100 Mo. 444; Ewing v. Hoblitzelle, 85 Mo. 64; State v. Miller 45 Mo. 495. The purposes of the act are clearly expressed in its title. State ex rel. v. Roach, 258 Mo. 561; State ex rel. v. Assurance Co., 251 Mo. 244;-State ex rel. v. Weithaupt, 231 Mo. 294; State v. Distilling Co., 236 Mo. 294; State ex rel. v. Van-diver, 222 Mo. 206; State v. Cantwell, 179 Mo. 260; State v. Bengsch 170 Mo. 105; City of St. Louis v. Tiefel, 42 Mo. 578; State v. Mathews, 44 Mo. 523; State v. Miller, 45 Mo. 495; Hannibal v. County of Marion, 69 Mo. 571; State ex rel. v. Mead, 71 Mo. 268. (2) The Act of 1919 is not in conflict with Section 30 of Article 2 of the Constitution. Embree v. Road Dis., 257 Mo. 611; Hager v. Reclamation Dist., Ill U. S., 701; Springfield ex rel. v. Weaver, 137 Mo. 672; Bank v. Carswell, 126 Mo. 436; Kansas City v. Huling, 87 Mo. 203; St. Louis v. Richedon, 76 Mo. 470. (3) The Act of 1919 is not in direct conflict with Section 9254, Revised Statutes 1909. A canon of construction of statutes is to get at the intent of the Legislature and to give force and effect to this intent. Curtis v. Section, 252 Mo. 245; State ex rel. v. Gmelich, 208 Mo. 152; Kenney v. McVoy, 206 Mo. 42; Grimes v. Reynolds, 184 Mo. 679. Statutes relating to the same subject must be treated prospectively and construed together as though they constituted one act. State ex inf. v. Koelen, 2:70 Mo. 191; State ex inf. v. Standard Oil Co., 218 Mo. 355; Sales v. Paving Co., 166 Mo. 671. If there is, however, an irreconcilable conflict between Section 9254 and this act, the act, being subsequent legislation and a special provision, must prevail. State ex rel. v. Foster, 187 Mo. 611; State v. Green, 87 Mo. 587; State v. DeBar, 58 Mo. 395. (4) The ordinances questioned do not admit of an unequal assessment of benefits. Ruecking Const. Co. v. Withnell, 269 Mo. 556; Land Co. v. Kansas City, 241 U. S. 419; Wagner v. Baltimore, 239 U. S. 217; Houch v. Drainage Dist., 239 U. S. 254; French v. Paving Co., 181 U. S. 343; Webster v. Fargo, 181 U. S. 395; Municipal Sec. Co. v. Met. St. Ry. Co., 196 S. W. 400. (5) The city, under the provisions of the Act of 1919, has authority to issue -tax-bills to itself and assign the same to the contractor, or to issue such tax-bills directly to the contractor. Sec. 8301, R. S. 1919.
   ELDER, J.

This is an equitable action wherein plaintiff (appellant herein) seeks to enjoin defendants from contracting for the sprinkling, oiling, repairing, surfacing and re-surfacing of certain streets in Jefferson City, Missouri.

Respondent having agreed to appellant’s statement of the facts, we adopt the same, with some slight modifications.

On February 9, 1920, the city council of the said City of Jefferson passed an 'ordinance dividing the city into six sprinkling, oiling, repairing, surfacing and resurfacing* districts, one of which is known as District No. 4, and established the boundaries thereof.

Plaintiff is a citizen and resident of the City of Jefferson, owning real estate in said District No. 4, fronting 48 feet on Madison Street and 98 feet on Ashley Street.

On May 7, 1920, the city council of said city passed an ordinance providing for the sprinkling, oiling, repairing, surfacing and re-surfacing of certain streets within the limits of District No. 4, by the terms of which the streets upon which plaintiff’s property abuts, were proposed to be improved. The city engineer was instructed to prepare plans and file the same with the city clerk and advertisements for bids for the work were authorized. It was provided in said ordinance that the costs of sprinkling, oiling, repairing, surfacing and resurfacing should be defrayed by special tax to be assessed in favor of the City of Jefferson on the property fronting on or abutting the streets improved, in proportion that the lineal feet of each lot fronting or bordering on the improvement bears to the total number of lineal feet of all property chargeable with the tax aforesaid, in the territory embraced by the contract for which advertisement was directed to be made.

Two specifications were made by the city engineer, one for re-surfacing the streets as an entirety, and the other for patching holes and depressions. The city engineer testified that under Specification No. 1, they proposed to scarify the streets and give them surface treatment, where they' were too far gone to be retreaded under Specification No. 2, and that under Specification No. 2 they proposed to fill the holes with a bituminous concrete mixed.

After the specifications were filed, due notice was given to contractors, which was duly published according to law. The Pope Construction Company, a partnership composed of Joseph Pope and E. J. Kersting, submitted the lowest bid for the work proposed to be done, 108,133 square yards, at $0,321 per .square yard, amounting in all to $34,724.80, which sum the city engineer testified would not exceed sixty cents per front foot on the streets proposed to be improved.

The bid of the Pope Construction Company was accepted by the city council, by resolution adopted July 6, 1920, and the mayor of the city was authorized by the council to enter into a contract with the Pope Construction Company for the faithful performance of the contemplated work.

Before the contract was entered into the plaintiff herein gave notice to defendants of his - intention to file an application for an injunction on the 13th day of July, 1920, and on said 13th day of July he filed his petition and exhibits and a temporary injunction was granted, enjoining the defendants from proceeding further in any way from entering into the contract for sprinkling, oiling, repairing, surfacing and re-surfacing the streets within District No. 4, as provided in the city ordinances.

The petition for injunction recites that the city council of the City of Jefferson in attempting to establish the sprinkling, oiling, repairing, surfacing and re-surfacing district and providing for the improvement thereof, was acting under the provision of an act of the Missouri Legislature, approved May 29, 1919, entitled, “An Act to repeal ‘An act to amend chapter 84, article 4, of the Revised Statutes of the State of Missouri, 1909,’ in relation to municipal corporations as it appears in the Laws of Missouri 1915, at page 359, and approved March 24, 1915, and to en^ct a new section in lieu thereof to be known as Section 9237a;” that said act is unconstitutional and void and in violation of Section 28, Article 4 of the Missouri Constitution; that it is in conflict with and contrary to Sections 9254, 9255 and 9256, Revised Statutes 1909, as amended by Laws of Missouri, 1911, pp. 337-341; that the City of Jefferson, its officers an' agents, were acting without authority of law and will east a cloud upon the title to plaintiff’s real estate, with a pretended lien for street improvement, nnder and by virtue of illegal acts, and deprive plaintiff and those similiarly situated of their property without due process of law, contrary to Section 30 of Article 2 of the Constitution of Missouri; and that said city proposes to create a lien for the work and improvements in favor of the City of Jefferson, instead of the contractor, who does the work.

The defendants answered, admitting that plaintiff was the owner of property in District No. 4, and a citizen of the City of Jefferson, and admitting the existence of all the ordinances and proceedings of the council, but denied that the provisions thereof would cast a cloud upon plaintiff’s title to his real estate and denied that they were illegal, or would deprive plaintiff of his property without due process of law, and denied that said act of the General Assembly of 1919 is contrary to other pre-existing laws of the State of Missouri. The answer practically admits all the facts stated in plaintiff’s petition, but denies the legal effect thereof.

After the filing of the answer, defendants filed a motion to dissolve. The case was tried on July 24, 1920, and the court dissolved the temporary injunction theretofore granted. On the same day plaintiff filed a motion for rehearing and review and a motion in arrest of judgment, both of which were overruled, to which plaintiff excepted, and an appeal was granted to this court.

I. Plaintiff’s first contention is that the act upon which the establishment and proposed improvement of the district in question is based, being Section 9237a, Laws of Missouri 1919, pages 572, 573, approved May 29, 1919, (now Section 8301, R. S. 1919), is violative of Section 28, Article 4 of the Constitution of Missouri, in that the subject of the act is not clearly expressed in the title thereof. Learned counsel for plaintiff argue that this act repealed all act aproved March 24, 1915, Laws of Missouri 1915, pages 359, 300, providing for the sprinkling and oiling of streets, and enacted a new section in lieu thereof; that the said Act of 1919, in addition to providing for the sprinkling and oiling of streets, also provides that the same may he repaired, surfaced and re-surfaced, but that “ no mention of the repairing, surfacing and re-surfacing thereof appears in the title,” and that therefore so far as the act relates to repairing, surfacing and re-surfacing it is unconstitutional.

In approaching the question presented, we do so with full recognition of the rule that the constitutional provision as to the necessity of clearly expressing the subject of a law in the title thereof must be reasonably and liberally construed and applied, clue regard being had to its object and purpose.

As has been declared, the principal purpose of the provision was to prevent surprise or fraud upon the members of the Legislature by barring the insertion of matter in the body of the bill of which the title gave ho intimation. [City of St. Louis v. Tiefel, 42 Mo. l. c. 590; State ex rel. v. Ranson, 73 Mo. 78; State v. Doerring, 194 Mo. l. c. 412; State v. Cantwell, 179 Mo. l. c. 260.] Also, as said by Sherwood, J., in St. Louis v. Weitzel, 130 Mo. l. c. 616: “ The evident object of the provision of the organic law relative to the title of an act was to have the title like a guide board, indicate the general contents of the bill, and contain but one general subject which might be expressed in a few or a greater number of words. If those words only constitute one general subject; if they do not mislead as to what the bill contains; if they are not designed as a cover to vicious and incongruous legislation, then the title can stand on its own merits, is an honest title and does not impinge on constitutional prohibitions.” Furthermore, so long as the title does not cover legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection, it is not subject to objection for generality. [City of St Louis v. Tiefel, 42 Mo. l. c. 592; Lynch v. Murphy, 119 Mo. 163.]

With these general principles in mind, and passing to a minute consideration of the question before us, we find the title to the Act of 1915 to be as follows: “ An act to amend Chapter 84, Article 4, of the Revised Statutes of the State of Missouri, 1909, in relation to municipal corporations, by adding thereto a new section to be known as Section 9237a.” The title to the Act of 1919 is as follows: “ An act to repeal ‘ An act to amend Chapter 84, Article 4, of the Revised Statutes of the State of Missouri, 1909,' in relation to municipal corporations as it appears in the Laws of Missouri, 1915, at page 359, and approved March 24,1915, and to enact a new section in lieu thereof to be known- as Section 9237a.” The mere reference, in the title of the Act of 1919, to the Act of 1915, without other description of the subject-matter, under the rulings of this court gave sufficient notice that the new section to be enacted' would deal with the same subject as contained in the section of the Act of 1915 to be repealed. [State ex rel. v. Imel, 242 Mo. l. c. 303; State ex rel. v. County Court, 128 Mo. l. c. 440; State ex rel. v. Heege, 135 Mo. l. c. 118; Burge v. Railroad, 244 Mo. l. c. 87; City of St. Louis v. Tiefel, 42 Mo. 578.] Moreover, by the title of the Act of 1919, the members of the Legislature were informed that the bill related to municipal corporations and proposed to repeal an act amending Chapter 84, Article 4, of the Revised Statutes of 1909, appearing in the Laws of 1915, at page 359, and to enact a new section in lieu thereof. By reference thereto, their attention was directed to the Act of 1915. Upon turning to the Act of 1915, the legislators would find the caption or head-note: Municipal Corporations — Cities of the third class — Oiling and sprinkling of streets — Special tax bills,” which by reference thereto became a part of the title to the Act of 1919, under consideration by them. [Barnes v. Pikey, 269 Mo. 398; State v. Doerring, 194 Mo. l. c. 412; State ex rel. v. Ranson, 73 Mo. l. c. 88; State v. Murlin, 137 Mo. l, c. 305.] They would thereby be specifically informed as to the general subject and nature of the legislation sought to be enacted. The caption or head note to the Act of 1915, having reference to the oiling and sprinkling of streets,” they would readily realize that the subject of the new section to be enacted would necessarily relate to the care and maintenance of streets, or a subject closely related thereto. And the body of the Act of 1919, continuing to treat of the oiling and sprinkling ” of streets, together with the kindred and germane subjects of “ repairing, surfacing and re-surfacing ” thereof, manifestly it cannot be effectively urged that the Legislature was misled.

Were the subjects incongruous or disconnected, or had they no natural connection with each other, plaintiff might well contend that the act was violative of the section of the Constitution cited, in that it contained more than one subject. But neither can that insistence prevail. By a fair interpretation the matters of “ repairing, surfacing and re-surfacing ” are cognate and related to the other subject-matter of the act and are accordingly not vulnerable to the objection that they constitute a separate and distinct subject. [State ex inf. v. Delmar Jockey Club, 200 Mo. 34; State v. Brodnax and Essex, 228 Mo. 25; State ex rel. v. Williams, 232 Mo. 56; O’Connor v. Transit Co., 198 Mo. 622; State ex rel. v. Gordon, 261 Mo. 631; State ex rel. v. Miller, 100 Mo. 439; Elting v. Hickman, 172 Mo. 237; Ewing v. Hoblitzelle, 85 Mo. 64.]

Our conclusion is that the Act of 1919 is in entire harmony with Section 28, Article 4, of the Constitution of this State, and we so rule. [State v. Doerring, 194 Mo. 398; State ex rel. v. Imel, 242 Mo. 293; Barnes v. Pikey, 269 Mo. 398; State ex rel. v. Ranson, 73 Mo. 78.]

II. Plaintiff next contends that the Act of 1919 is in direct conflict with Sections 9254 and 9255, Laws of Missouri 1911, pages 337-341. The Act of 1919 relates to the sprinkling, oiling, repairing, surfacing and resurfacing of streets, avenues, alleys and public places. Sections 9254 and 9255 relate to the grading, paving, grading, guttering and curbing, and alleys, the reconstruction and repairing oj paving, grading, guttering and curbing, and the making and repairing of sidewalks, bridges, culverts and crosswalks. Section 9254 provides that “where the entire surface of a paving is renewed,” such renewal “shall he considered as a paving.” 'By Section 9255 provision is made whereby resident owners may protest against any proposed paving, but not so under the Act of 1919. Learned counsel for plaintiff argue that “under the proposed improvement' in the case at bar, it is clear that the work contemplated is to renew the entire surface of the street (See Specification No. 1), and constitutes a paving, against which property owners have the right to protest, which was denied them under the proposed improvement in the case at bar.” Specification No. 1, referred to by counsel, which was introduced in evidence, provides in general that the “present wearing of the roadway” shall be loosened by means of a scarifier or by hand labor to a depth of not less than three inches; that the roadway “shall be thoroughly harrowed several times until a maximum density is obtained;” that it shall then be “shaped to the proper crown and grade as shown on the plans and profile or as directed by the engineer;” that all surplus material shall be removed and “such additional stone as may be required to bring the roadway to the proper grade” shall be furnished by the contractor; that the surface shall then be thoroughly rolled until an even and firm surface is produced, when it shall be cleaned of all dust, dirt and excess material; that to the surface so prepared there shall be applied a coat of tarvia, which shall be allowed to stand at least twenty-four hours; that over this surface shall then be spread “a sufficient quantity of torpedo gravel to fill the surface voids,” after which the roadway shall be lightly rolled and swept clean; and that thereupon a second or final application of tarvia shall be made. From this specification it clearly appears that the entire surface of the street is to be renewed (as is argued by counsel), which character of improvement is defined by Section 9254 to bo a “paving.” However, the improvement also constitutes a “resurfacing” within the meaning of the Act of 1919. [Collins v. Jaicks Co., 279 Mo. l. c. 427, 214 S. W. l. c. 398.] It follows that the two acts, providing for an entirely different method of procedure as to the paving and re-surfacing of streets respectively, are in that respect so inconsistent and repugnant that they both cannot operate together. But, the Act of 1919, having been enacted subsequent to the Act of 1911, necessarily repeals the latter. [State ex rel. v. Shields, 230 Mo. l. c. 100; Gasconade County v. Gordon, 241 Mo. l. c. 582; State ex rel. v. Clayton, 226 Mo. l. c. 302; State ex rel. v. Heidorn, 74 Mo. 410; State ex rel. v. Draper, 47 Mo. 29; State ex rel. v. Lawrence, 38 Mo. l. c. 535.] Accordingly, even though plaintiff’s contention is well founded, nevertheless, the proceedings in the instant case having been based on the Act of 1919, which is controlling, are valid.

III. Plaintiff further insists that under the proceedings contemplated, there will be an unequal assessment in that all property owners will be charged the same amount per front foot, regardless of whether the-street in front of the particular property is entirely re-surfaced or only holes or depressions therein are patched. This argument, although advanced in a different form, is the same as has often been made against the constitutionality of assessments of the character here presented, a question which has long* been settled by this .court and the Supreme Court of the United States. •

In the instant case the proposed contract is fop the whole improvement, and the cost thereof is to be defrayed by a special tax on the property fronting or abutting on the streets where the work is done, in the proportion that the linear feet of each lot fronting there on bears to the total number of linear feet of all the property chargeable with the tax. All property in the improved district is to be benefited alike and all should bear proportionately the cost of the improvement, without regard to what particular work is done in front of a given lot. As was held in Paving Co. v. Munn, 185 Mo. 565, “it was clearly within the municipal authority to determine what street improvement and the extent thereof should he made and what property would be benefited thereby and to fix the benefit district and apportion the tax.” [See also Municipal Securities Corp. v. Street Ry. Co., 196 S. W. 400; City to use of McGrath v. Clemens, 49 Mo. 552; Heman Constr. Co. v. McManus, 102 Mo. App. 649; Ranney v. Cape Girardeau, 255 Mo. 514.]

We therefore rule the point against plaintiff.

IY. It is finally contended by plaintiff that, under the notice to paving contractors, advertising for bids on the improvements proposed, the contractor is to be paid by special tax-bills, issued in his favor, +or which there is no authority in the Act of 1919. Counsel argue that the city must do the work and issue the bills in its own name.

The Act of 1919 specifically provides that the work shall be done by the city “or shall be contracted for” as provided by ordinance, that the cost shall be defrayed “by a special tax assessed in favor of the city,” and that special tax-bills shall be “issued and collected in the manner hereafter provided by ordinance,” Sections 22 and 23 of Ordinance 42 of the City of Jefferson, introduced in evidence, provide for the levy of an assessment for the cost of improvements and the issuance of special tax-bills against the property charged, and Section 25 of said ordinance provides that such tax-bills “shall be assignable.” The exact language of the notice to contractors, with respect to payment, is: “Payment is to be made by special tax-bills issued against the property abutting the streets intended to be improved.” It follows that tax-bills may be issued directly to the contractor of may be issued to the city and assigned by it to the contractor doing the work. The point made is wholly without merit and we rule it against plaintiff.

This concludes all the questions raised by appellant. Prom wdiat has been said it follows that the judgment must be affirmed. It is so ordered.

All concur, except Walker, C. J., and James T. Blair, J., not sitting.