text:
    MERYL REALTY COMPANY v. GRANITE BITUMINOUS PAVING COMPANY, Appellant.
    Division One,
    July 19, 1920.
    1. DEED TO RAILROAD: Acquired by Street Railway: Determinable. The right acquired by unrestricted deed by a street railway from a railroad company to which was conveyed the fee to a strip of land, is as broad as that of the railroad company, the original grantee; and whether said right is determinable is not suggested in this suit on street improvement tax bills, and is not therefore considered; for whether determinable or not, it has not been abandoned and is still claimed by the street railway company.
    2. STREET IMPROVEMENT: Abutting and Fronting: Definition. The words “fronting or abutting,” used in the statute relating to street paving, have distinct and separate meanings, and together they indicate that the Legislature intended to include all lands bordering on any part of the street to be improved. “To abut,’’ in its most ordinary sense, is to border on, and “abutting” means adjoining; and the two words “fronting or abutting” imply lands other than those lots which front on one side of a street.
    3. -: Railroad Right of Way: In Middle of Street: Benefit Assessment. A strip of ground thirty feet wide in the middle of a street,, conveyed in fee to a railway company as a right-of-way and roadbed, is, under the statute (Sec. 9254, R. S. 1909), chargeable with its proportionate part of the cost of paving two strips of the street, one on each side of the right-of-way and each ten feet and a half wide; and tax bills, issued to the contractor in payment for paving said two strips and assessed against the lots fronting thereon alone for the entire cost, are void.

      4. -: —■——■: -: -: Owner in Fee. A railway company which has deliberately elected to purchase a strip of ground thirty feet wide from a private owner in fee, for its exclusive use as the right-of-way for its tracks, in the middle of a wider tract the balance of which is about to be dedicated, by the owner to public use as a street, stands precisely, after said street is established and the city undertakes to pave the two strips of street on each side of the right-of-way, as it would have stood had the entire street been dedicated along one side of the said right-of-way.
    5. -= — : Assessment Againt Street Railway.. The statute (Sec. 9254, R. S. 1909) in reference to the assessment of the<cost of a street improvement makes no distinction between a railroad and a street railway. The tax is a charge upon the land adjoining the street owned by any kind of a railroad corporation.
    Appeal from St. Louis City Circuit Court. — Ron Q. A. Wurdeman, Judge.
    Affirmed.

      Sturdevant & Stu'rdevant and Charles A. Powers for appellant.
    (1) The cost of the improvement is chargeable against the lots and tracts of land fronting or abutting upon the part of the street improved, in proportion to the number of fronting or abutting feet. Laws 1911, pp. 337-8. (2) The deed from the Cartan Real Estate Company vested in said railroad corporation a right-of-way for railroad uses only in the said thirty-foot strip during the period only of its use .thereof for railroad purposes; and the interests of such railroad in said land has never been and is not now'more than an easement and right-of-way. Sec. 3049, art. 2, eh. 33, R. S. 1909 ; Kellogg v. Malin, 50 Mo. 496; State ex rel. v. Road Co., 207 Mo. 85; Railroad v. Sandlin, 173 Mo. App. 384. (3) The deed clearly reserves the right to dedicate to public use a street sixty feet wide, and the dedication following clearly dedicates a street sixty feet wide; and there is nothing in the language of the instrument to point or imply an intention of the parties to vest the railroad with more than a right-of-way for its use, when the granting and habendum clauses are both considered in connection with the reservation in regard to the sixty-foot street. Linville v. Greer, 165 Mo. 380; Carrett v. Wiltse, 252 Mo. 1. c. 712. (4) In the deed the grantor reserves the right to dedicate a street sixty feet wide, of which the railroad right-of-way should be the center; and it subsequently filed a plat and dedication of Cartan Avenue sixty feet wide to public use, subject only to the right-of-way previously granted said railroad company. Adjoining, or abutting property within the meaning of the statute above, is property which adjoins or abuts laterally upon the street proper which, in this instance, is the sixty-foot strip dedicated as aforesaid, as Cartan Avenue; and the above statute designating the property which shall pay the cost of a public improvement of this kind did not contemplate and does not include a railroad right-of-way lying wholly within, and being a part of, the street itself, 'because such strip of ground does not front or abut upon Cartan Avenue, the street improved. Indianapolis Ry. Co. v. Capitol Paving Co., 24 Ind. App. 114; South Park Comr. v. Chicago Ry Co., 107 111. 105; O’Reilley v. City of Kingston, 114 N. Y. 439; Oshkosh Ry. Co. v. Winnebago Co., 89 Wis. 435; 1 C. J. p. 376.

      'William Hilkerbaumer for respondent.
    (1) The-strip of land used by the railroad company as a right-of-way, whether owned by it in fee simple or for use as a right-of-way, subject to reversion in case of abandonment, is subject to special improvement taxes when fronting or abutting on the proposed improvement along the distance improved. R. S. 1909, see. 9254, as amended by Act of 1911, Laws 1911, p. 337; 4 Dillon on Mun. Corp. (5 Ed.) sec. 1451; Heman Const. Co. v. Wabash Railroad, 206 Mo. 172; Gilsonite Const. Co. v. Railroad, 240 Mo. 650; Railroad v. Paving Co., 197 U. S. 430; Shreveport v. Shreveport Traction Co., 134 La. 568; Des Moines Railroad v. Des Moines, 159 N. W. 450; City of Kankakee v. HI. Central Railroad, 258 HI. 368. (2) The grant contained in the deed is a grant of the fee-simple title to the strip in controversy. R. S. 1909, sec. 3316; Polebetzke v. Week Lbr. Co., 157 Wis. 377; Wiehe v. Lorenz, 254 HI. 195; Newpoint Lodge v. Town of Newpoint, 138 Ind. 141; Barker v. Barrow, 138 Mass. 578; Herman Ev. P. Congr, v. Schreiber, 209 S. W. 914. (3) Even though it be held that the deed does not convey the fee-simple title, the strip is clearly a private right-of-way, and constitutes property abutting or fronting upon the proposed improvement, and as such is subject to special improvement tases. R. S. 1909, see. 9254, as amended in 1911, Laws 1911, 337; Des Moines Railroad v. Des Moines, 159 N. W. 450; Shreveport v. Shreveport Traction Co., 134 La. 568; City of Kankakee v. 111. Central Railroad Co., 258 HI. 368. (4) It is only when the right-of-way, if such it may be called, consists of the right to lay tracks in a public street that such right-of-way can be said not to front or abut upon a proposed improvement. S. Park Com. v. Chicago Railroad, 107 111. 105; Ind. & Vincennes R. R. Co. v. Capital Paving Co., 24 Ind. App. 114. (5) There having, been no abandonment of its right-of-way, there can be no' question of' a reversion in this case. Des Moines Railroad v. Des Moines, 159 N. W. 450. (6)- “Abut” means adjoining, or where there is no intervening land. People v. Willison, 237 111. 584; Millan v. Charitan, 145 Iowa, 648.
   BROWN, C.

This suit was instituted in the Circuit Court of St. Louis County, December 22, 1916, for the purpose of cancelling certain tax bills issued to defendant corporation by the City of Maplewood for the paving, curbing and guttering of Cartan Avenue in said city, on the ground that, while regular on their face, they are in fact void and constitute a cloud upon plaintiff’s title to the lands against which they were issued, which consists of a great number of lots fronting upon said street between Big Bend road and Laclede Station road, where the work was done.

These tax bills amount, in the aggregate to $11,069. 96, and were issued and delivered to the defendant corporation August 14, ,1915. Their cancellation is asked on three distinct grounds: (1) That a strip of land thirty feet wide, extending through the middle of the street throughout the entire distance covered by this work and the contract therefor, was not included in the assessment, nor charged with any part of the costs; (2) because the work was neither begun nor finished until long after the time specified in defendant’s contract with the city and the ordinance by which it was authorized, and (3) because the assessment made was unreasonable, oppressive and confiscatory. No question is made as to the sufficiency of the petition to state the facts relied on by plaintiff as they were developed in evidence, and it is therefore unnecessary to notice it further.

The facts are as follows: The City of Maplewood is a city of the third class existing, in that capacity during all the time covered by this case. By deed dated December 24, 1896, the Cartan Real Estate Company, a corporation, owning the land, conveyed to the St. Louis & Meramec River Railroad Company, the thirty-foot strip in question here, in the following words:

' “This deed, made and entered into this 24th day of December, 1896, by and between the Cartan Real Estate Company, a corporation of the State of Missouri, party of the first part, and the St. Louis & Meramec River Railroad Company, a corporation of thp State of Missouri, party of the second part:
“Witnesseth, that the said party of the first part, in consideration of the sum of one dollar, to it paid by the said party of the second part, the receipt of which is hereby acknowledged, does by these presents, grant, bargain and sell, convey and confirm unto the said party of the second part, for a right-of-way and roadbed, a strip of ground thirty feet wide in United States Survey 2844, in the County of St. Louis, State of Missouri, and correctly represented on the foregoing and above plat by pink shading, with privilege to place poles for carrying the necessary overhead wires of said railroad outside of said right of way and within ten feet of either side of same, the strips in which this privilege is granted are correctly represented on the foregoing and above plat by blue shading.
“The said party of the first part reserves the right at any time to dedicate to public use, when graded as a street, a strip not less than sixty feet wide, the outer lines of said strip to be equi-distant from and parallel with the center line of said right of way. Said public use as a street, when dedicated, to apply to all the space from the outer limits of the strip so dedicated to the outer ends of the ties under the tracks of the second party, but said dedication shall be subject to the right-of-way use for roadbed and privilege herein granted to the party of the second part, said party of the second part agrees that no fences or other obstructions will be placed at the sidés or edges of said strip shaded in pink, and in ease any intersecting streets shall hereafter be made or dedicated then and in that case free passageway across said right of way and tracks shall be maintained by. said party of the second part.
“To have and to hold the same unto the said party of the second part and unto its successors and assigns forever, for right of way for railroad use as roadbed for said railroad, privilege to place poles for carrying the necessary overhead wires.”

Attached to and forming a part of this deed was the plat mentioned. The strip shown thereon was the same as now occupied by the railroad. It is more than one thousand seven hundred feet long with no street crossing it. Afterward the Cartan Real Estate Company filed its plat of Cartan Subdivision containing the following dedication: “Cartan Avenue, 60 feet wide, shown in etching, is hereby dedicated to the public use forever, subject to the right of way and other conditions and stipulations described in deed of Cartan Real Estate Company to the St. Louis & Meramec Railroad Company, recorded in Book 94, page 619, St. Louis County records.”

It is assumed in argument and not questioned, that the grantee in the foregoing deed was a railroad company organized under the laws, applicable to such corporations, and that before the beginning of the proceedings resulting in these tax bills the property had been acquired and occupied by the United Railways Company, a street railroad corporation which maintains and operates its double-track street railway thereon. No street has ever been located across this strip, but the railroad company has filled its track with crushed rock so that it can be crossed by vehicles in one place.

These tax proceedings began with the passage by the City of Maplewood of Ordinance Number 506, the relevant provisions of which are as follows:

“Section 1. That the roadway of Cartan Avenue in the City of Maplewood, between Big Bend road and Laclede Station road, be brought to the established grade, including the squares and areas formed by the meeting of said street with other streets and public places, and improved in the following manner, namely: By constructing on each side of the roadway a combined Portland cement concrete curb and gutter 6 by 24 inches and paving the roadway between the outside of each gutter and a point one foot outside of the outside rail of the street car tracks of the St. Louis & Meramec River. Railroad Company, its successors and assigns, at the present time occupying the center of said street on each side, by preparing the roadway for the superstructure and laying first a course of Portland cement-concrete five inches thick, upon which shall be laid á surface or wearing course of bithulithic pavement two inches in thickness, and constructing all the necessary storm-water sewers, inlets, catch basins and other apjÉirtenances for said street.
“Section 2. The above described work of improvement shall be begun by the successful bidder within ninéty days after signing of a proper contract, and filing and having his bond approved, and shall be carried on to its completion within ninety days from the date of beginning, unless the time shall be extended by the council by ordinance, said work to be done in strict accordánce with the plans and specifications filed for said street by the city engineer, which are hereby approved and adopted, and shall further be done in accordance with the terms and provisions of the contract hereafter to be embodied in an ordinance and shall be subject to the provisions of the laws of the State of Missouri affecting improvements' in cities of the third class and with the provisions of the general ordinances of the City of Maplewood.”

Section 6 provided for the execution by the successful bidder for the work, of a contract and bond for its faithful performance.

Section 7 is as follows:

“The St. Louis & Meramec River Railroad Company, its successors and assigns are hereby requested to bring to the established grade of said street the space occupied by their tracks and ties, and pave the said space so occupied and used by them in the same or equally as good a paving as that herein provided for the paving of the remainder of the roadway of said street.” The contract was executed and the .bond approved February 19, 1914.

On July 20, 1914, the defendant wrote to the mayor and council of the city as follows: - .

“We would thank you to give us an extension of time on the contract covering the improvement of Cartan Avenue from Laclede Station road to Big Bend road. ■ Owing to a controversy between the city and the street railway company regarding the paving of their right of way, if has been impossible for us to commence the work on the improvement of Cartan Avenue, and we would thank you to grant us an extention of 90 days.” On this letter an extension was granted to November 18,1914. On October 28,1914, the defendant again wrote the mayor and council as follows:,
“We would thank you to grant us an extension of time on the contract covering the improvement of Cartan Avenue from Laclede Station road to Big Bend road. It has been impossible for us to start the work of improvement of Cartan Avenue on account of the controversy between the city and the street railway company regarding the improvement of their right of way on Cartan Avenue, and would thank you to grant us an extention of 90 days on this contract.”

The council again extended the time for the completion of the work for ninety days. On- the following day the council extended the time for the completion of the work until April 1,1915. On March 19,1915, defendant made another application for extension, giving the same excuse for its failure to complete the work as in its first application and added, “We understand from Mr. Jones, your city attorney, and also from Mr. Shinkle, your city engineer, that there will soon be a definite understanding between the city and the street railway company, which will permit our carrying out our contract to improve this street, and yon may be sure that we will commence the work, at the earliest possible time, and rush same to completion. ’ ’ An extension was granted to July 31, 1915, and on July 27th the work was completed and received by the city.

The testimony shows that the improvement for which these tax bills were issued consists of a curb and gutter on each side of the street, and ten feet and six inches of pavement on each side extending from the gutter to the railroad tracks; that these tracks do not conform to the grade of the pavement; that there, is no-room on the strip of pavement on each side of Cartan Avenue for vehicles to pass one another; that a vehicle standing in front of a house, of which there are quite a number, would make it impossible for another vehicle to pass that point, and that there is only one place in the seventeen hundred feet included in this work where the railroad company has filled its track so that vehicles can pass across it.

I. The first and most important question presented is whether the railroad right of way, consisting of a strip thirty feet wide along the center line of Cartan Avenue, is subject to assessment for this improvement. This depends upon the provisions of Section 9254,. Revised Statutes 1909, as amended by the Act of April 3, 1911 (Laws 1911, p. 337). It is evident that the title of the railroad company stands at the door of the inquiry. It did not originate in permission of the city to lay its rails and operate its cars upon a public street, for there was no public street there. It was acquired by voluntary grant from a' private owner, the Cartan Real Estate Company, years before the street Was dedicated. The deed by its terms> conveyed the fee. Whether this was determinable or not by the failure of the purpose of the grant makes no difference, because there is no suggestion that it has been so determined. Some suggestion is made that this use has been changed by a change in the character of the ownership; that whereas the thirty-foot strip was origiginally conveyed to a railroad company the possession has since passed by some unmentioned process to a street railroad company. While this does not appear in the record it is tacidly admitted in argument, although it is not denied, that the present owner is seized of all the title which passed by the deed of the Cartan Real Estate Company, so far as it is authorized by law to hold and use the land for its corporate purposes. Its right to acquire the land is as broad as that of the original grantee. [R. S. 1909, sec. 3316.] The present owner is therefore seized in fee of this thirty-foot strip of land for the uses incident to its incorporation to the extent indicated by the terms of its deed, and also of an easement for the purpose of setting its poles on the land immediately adjoining it. This is clearly stated in-the habendum as follows: “To have and to hold the same unto the said party of the second part and unto its successors and assigns forever, for right of way for railroad use as roadbed for said railroad, privilege to place poles for carrying the necessary overhead wires.”

The deed reserves the right to dedicate the sixty-foot strip now described as Cartan Avenue,, such dedication “to apply to all the space from the outer limits of the strip so dedicated to the outer ends of the ties under the tracks of the second party.” This deed, which is copied in full in our statement, seems to be the product of infinite pains to avoid the inference of any right of the city to interfere in any manner with the thirty-foot strip in question. The right to dedicate, and the dedication itself, applied only to two distinct strips of land lying, on either side of the right of way between the ends of the ties of the railway company and the boundary of the street. The dedicator had no title in the right of way and the dedication did not purport to include it.

The ordinance under which this improvement was made carefully conformed to the condition of the title as we have stated it. It provided for “paving the roadway between the outside of each gutter and a point one foot outside of the outside rail of the street car tracks of the St. Louis & Meramec River Railroad Company, its successors and assigns, at the present time occupying the center of said street on each side.” It will be seen that this provides for two distinct roadways: one on each side of the railroad strip, each of which would be almost useless for the purpose of travel, because there was no room for vehicles to pass each other or to pass a vehicle standing in front of a residence on the street. Each strip was a third of a mile in length. It appears from the record that the ordinance was passed in that form in expectation that some arrangement could be made for the pavement of that half of the street covered by the railroad tracks, and more than a year was spent in unsuccessful effort to accomplish that result. The time for beginning to work passed without anything having been done, and before the time set in the ordinance for completion the council extended the time and continued to extend it until the following summer when, the negotiation having failed, the city’s part of the work was begun and completed, and this assessment was made by charging it to the owners of property on each side of the hybrid'street to the exclusion of the railway property in the middle. The propriety of this assessment must be' determined by the provisions o,f thé statute under which it was made.

Section 9254, Revised Statutes 1909, as amended by the Act of 1911 (Laws 1911, p. 338), relating to cities of the third class, ■ provides that the “cost of paving, guttering and otherwise improving any alley and the roadway part of any street, that is ■ the part between curb lines, including street intersections, shall be charged against the lots and tracts of land fronting or abutting on the street or alley so improved along the distances improved, in proportion to the number of fronting or abutting feet/” Did this provision stand alone we might well speculate upon its exact meaning in this connection. The use of the expression “fronting or abutting,” words having distinct and separate definitions, indicates that the Legislature intended to include all lands bordering on any part of the street covered by the improvement. The fact that this railroad property is no part of the street, but borders on each of the two portions improved, is worthy of notice. Without any connection between them, they are united by name only. Were one of them named North Cartan Avenue and the other South Cartan Avenue the situation, from a legal standpoint, would be the same. It is made plainer by the substitution of the word “improvement” for the words street or alley in the following provision of the same section: “All lands owned by any county, or city, and all other public lands, cemeteries and railroad rights of way, fronting or abutting on any of said improvements shall be liable for their proportionate part of the cost of such improvement.” To abut is, in its most ordinary. sense, to border on, and abutting means adjoining, and this right of way abuts on both lines of this improvement its entire length. Did the improvement consist of a single line of paving, along which the private right of way of the railroad extended no one could doubt the liability of its owner to taxation under the express words used in this statute, yet there would be nothing in principle to distinguish that situation from the one before us.

In this ease the railway company has deliberately elected to purchase its right of way from, the private owner of the land in fee for its own exclusive use. It stands precisely as it would have stood had the entire street been afterward dedicated upon and along one side of it. Had it acquired the same right of way from the city after the dedication of the street it might have been burdened with such duties of improvement and repair as the city saw fit to impose, but this transaction would seem to have been made for the purpose of obtaining all the advantages of a street location without any of its burdens. -It had the choice to come into the street for all purposes or to remain out of it for all purposes, and chose the latter course and became an adjoining proprietor with all the burdens incident to that relation. One of them is participating in the burden of taxation as an abutting proprietor with reference to this improvement and we hold that it is so liable to the same extent as if it had been incorporated for horticultural purposes and the land had been conveyed to it for use as an orchard.

II. It is suggested by appellant in argument that the provisions of the statute with reference to the assessment'of the cost of these improvements against railroad rights of way do not apply to street railways,' and that the owner of this right of way is a street railway company and that its road is a street railway. While this does not appear in the record it may he the fact. But the statute makes no such distinction. It applies alike to all lands owned by railroad corporations for use as right of way, and we can see no ground for the distinction. The tax is chargeable upon the land as such, and relates in no way to the character of the business of the company operating the railroad for which it is used. The status in this respect of a railroad operated by permission upon a public street is not involved here, but only the taxation of lands owned and used for that purpose.

III. Having arrived at the conclusion stated it is unnecessary to consider whether or not the ordinance which we think is shown by the record to have been Passe(^ f°r the purpose of joining with the railroad company in paving the entire sixty feet is sufficient to authorize this fragmentary improvement after more than a year spent in ascertaining that the company would not join in the work. We do not therefore express any opinion either as to the reasonableness of the ordinance or effect of the delay in beginning the work. The judgment of the Circuit Court for St. Louis County is affirmed.

Ragland, G., concurs: Small, G., not sitting.

PER CURIAM:

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

All of the judges concur.


source: Caselaw Access Project

author: GOODE, J.

license: Public Domain

text:
    CLARENCE A. SHUNK, Plaintiff in Error, v. J. G. L. HARVEY et al., Receivers.
    Division One,
    July 19, 1920.
    1. SUBMISSION OF ISSUE: Wrongful Theory: No Evidence. Although the trial court may have refused to submit the jury the issue whether the ladder to the dump car from which plaintiff fell was a reasonably safe applicance, on the erroneous theory that plaintiff had assumed the risk of using them in the condition in which they were, yet if there was no evidence that neither was not reasonably safe, a judgment for defendant cannot be reversed because the court refused to submit the issue of a reasonably safe appliance. If no evidence is put in or offered which tends to support an issue, it would be error to submit it to the jury, and the reason for refusing to submit it is immaterial.
    2'. NEGLIGENCE: Proximate Cause. Negligence creates no liability for an injury not shown to have been caused thereby.
    Appeal from Jackson Circuit Court. — Hon. Thomas B ' Buckner, Judge.
    Affirmed.

      Wilkinson, Wilkinson & Dabbs for appellant.
    (1) The trial court was in error in the alteration by the court of plaintiff’s Instruction No. 1, by running the pen through those phrases of the instruction which refer to the “platform,” and the refusal to give the instruction as originally offered. Patrum v. Railway Co., 259 Mo. 124; Fish v. Railway Co., 263 Mo. 125; "Williams v. Pryor, 272 Mo. 613; Johnson v. Coal Co., 205 S. W. 615; Curtis v. McNair, 173 Mo. 270; Brady v. Railway Co., 206 Mo. 509; Tinkler v. Railway Co., 212 Mo. 445; Huston v. Railway Co., 129 Mo. App. '576. (2) The trial court was in error in the alteration by the court of plaintiff’s Instruction No. 2, by running the pen through those phrases of the instruction which referred to the “platform,” and the refusal to give the instruction as originally offered. Same authorities as above. (3) The trial court was in error in the giving by the court at the request of the defendant of Instruction No. 8, which took ' away from the jury all questions of negligence in regard to the alteration or construction of the “Oliver air dump.” Same authorities as above. (4) The trial court was in error in the exclusion of certain testimony in regard to negligence in the construction and alteration of the “platform” of the “Oliver air dump.” Greenleaf on Evidence (15 Ed.), sec. 260-A. and note; Lee v. Railway Co., 195 Mo. 400.
    Cooper, Neel & Wright for defendant in error.
    (1) The trial court did not err in the corrections he made in plaintiff’s instructions numbered 1 and 2, as offered. Glover v. Meinrath, 133 Mo. 303; Labbatt on Master and Servant (2 Ed.), p. 2500, sec. 931 et seq.; Winkler v. St. L. B. & B. Co., 137 Mo. 399; Hulett v. “Railway Co., 67 Mo. 242; Bohn v. Railway Co., 106 Mo. 433; Smith v. Railway Co., 69 Mo. 35; Chrisner V. Bell Tel. Co., 194 Mo. 208, 209; Jackson v. Mo. Pac. Railway Co., 104 Mo. 457; Mathis v. Stock Yards Co., 185 Mo. 444. (2) The court would have been justified in refusing plaintiff’s instruction numbered 1 as originally written, because it assumed controverted facts. (3) The trial court did not err in giving Instruction, 8, as requested by defendant. Same authorities above cited. (4) Under the testimony plaintiff was not entitled to recover in any event because he was guilty of contributory negligence. Same authorities above cited. (5) Under the testimony plaintiff was not entitled to recover in any event because he'assumed the risk of any injury in doing what he did at the time and place complained of. Same authorities above cited.
   GOODE, J.

This plaintiff lost his left foot in consequence of the wheels of a car passing over it — a car which belonged to the defendant, Kansas City, Clay County & St. Joseph Eailway Company, but operated on the day of the accident, March 15, 1916, by the defendantants J. G. L. Harvey and Ingraham D. Hook, as the receivers of said railway company. The receivers have since been discharged and the railway properties turned back to the company, which assumed all pending liabilities incurred while the property was in the hands of the receivers, whether contractual or in tort. Plaintiff was the conductor in charge of a construction train, consisting of an electric-motor car, or engine, a flat car, called a “ditcher,” which carried a crane that raised and lowered a large scoop or shovel used to scrape up dirt, and a dump car, known as the Oliver Air Dump Oar, into which, as we understand, the dirt was spilled. A platform extended across each end of the dump car, and possibly three feet below the top edge of the body of it, and about four feet and a half above the gronád or railway track. This platform was a board, say three-quarters of an inch thick and a foot wide. Prom either end of it hung an iron ladder of two steps, of which the lower one was a little over two feet from the surface of the railway bed. The photographs which accompany the abstract of defendants show the arrangement of the dump car, the platform and ladders, and they are reproduced to aid the' reader to understand the facts of the case. According to the testimony the platform as constructed, and as it was when the car was purchased by the railway company, extended out flush with the sides of the body of the dump car; but when the train was at work, the chain by which the shovel was lifted would catch upon the ladders as the shovel was hauled up by the crane, and to correct this interference, the railway company cut eight inches off each end of the platform, thereby bringing the ends of it and the ladders fastened

to the ends, inside the outer sides of fhe car. It is charged and contended that this alteration rendered the ladders unsafe appliances for the use of employees who might have occasion to mount them.

About 10:30 o’clock in the morning, of March 15, 1916, the construction train and its crew were occupied on the part of the line of the defendant company north of Kansas City, known as “Rattlesnake Curve,’'’ which is described as a sharp curve, where a keen lookout for trains should be kept. A passenger train going north being about due at said hour, the construction train was run on a switch or siding to let the passenger train pass, and so was a car known as a “line car,” used by employees called “linemen” and propelled by its own motor. After the passenger train had gone by, the “line car” left the siding first, moving northward onto the main track, and plaintiff went with it ahead of his own train, apparently to give signals to the latter train, so it would not run into the “line car.” The plaintiff soon dismounted and stood by the track, to wait for the construction train which was six hundred yards behind. As it approached he signalled the engineer to slow down, the signal was obeyed, and the train drew up to plaintiff at the speed of about six miles an hour, the dump car in front, the “ditcher” next and the motor car pushing in the rear. Just as the ladder on the east side of the dump car was opposite plaintiff, who was standing on the ground east of the railway track, he took hold of the handhold and had placed his left foot on the lower rung or stirrup and had lifted his other foot off, or almost off, the ground, when a lurch of the car caused his left foot to slip off the stirrup and onto the rail below, where the wheels of the front truck Of the dump car passed over it and crushed it so badly that amputation was necessary. It should be stated that the ladder from which plaintiff slipped had been bent in two inches or so at the bottom and hung that far out of a perpendicular line. We copy from the petition:

“Said defendants disregarding their duty, negligently and carelessly placed in the train on which plaintiff was engaged to perform services as such conductor, a dump car of the type above described, 'having an unsafe and defective running board and ladder, in this that said running board, instead of extending out almost even with the bed or box of the car as originally designed and constructed, had been altered by said defendants, their agents, servants and employees, by having been negligently and carelessly sawed off or cut off, so that said running board was several inches shorter than it was as originally -constructed, and that this caused each end thereof to be set in about even with the front wheel of the nearest truck of said car; that said ladder was fastened onto the end of said running board, the ends of which running board had been negligently and carelessly altered and cut off by said defendants, their agents, servants or employees, until said ladder hung directly over and within a few inches of one of the wheels of said car; and further that the lower end of said ladder was negligently and carelessly allowed to become slanted and bent in toward said wheel so that its lower rung was by reason thereof several inches nearer said wheel than it should have been or would have been had it remained in the upright position it occupied as originally constructed; that said ladder was'so placed and constructed and further had been allowed to become bent in so that a person who might attempt to mount the same would be liable to be thrown from the same onto the rails and under the wheels of said car and receive great injury; furthermore, that said ladder was unsafe and defective in that it was too short to permit a man of ordinary and usual height to stand up .vertically thereon in any position and retain the handhold at the top thereof.”

The charge is that the mishap to plaintiff was caused by these, neglects of the defendants.

A general denial, a plea that plaintiff assumed the risk incident to using the ladder, and the plea that by his ■ own carelessness he contributed to his injury, compose the answer.

A verdict was returned for the defendants, judgment was given upon it, plaintiff appealed, and assigns as errors the refusal of the court below to leave to the jury the issue of whether defendants were negligent in -furnishing for plaintiff’s use the dump ear with its platform shortened so the ladders hung over the rails; and also that the court excluded competent evidence offered by plaintiff regarding the alteration of the car.

The question of whether the court erred in refusing to submit the proposition. that defendants were negligent in having plaintiff use the dump car if the platform and ladder on it were not reasonably safe, is to be answered in the light of the facts as shown by the attendant physical conditions and the testimony. An expert witness expressed the opinion that a platform shortened to the length of the one on the dump car was less safe' for use than a platform of the usual length. But the sole reason given for this opinion was that the short platform made it necessary for an employee in ascending the ladder, to go between the dump car and the one next to it. He said:

“Q. What was it you said about — if the length of these running boards was decreased by cutting off part of it, it would increase the danger — what was it you said? A. It would make it more dangerous for the car men to mount the car or to uncouple the car.
“Q. How much more dangerous? A. That is a hard question.
“Q. It would depend on how much was cut off? A. Yes, sir.
“Q. Always a certain amount of danger connected with catching a moving train, or jumping on the running board of any moving train or car, isn’t there? A. Yes, sir.
“Q. And if a man had been working on one of these cars that had the running board shortened some, and had been using it, switching with it, and getting off and on for some length of time, would you say that was any more dangerous to him than a car would be with the running board extended out flush with the sides of the car? A. It would always be more dangerous, because it necessitates his getting more between the cars and therefore he would be more liable to miss his footing or handhold.
“Q. The danger from getting between the cars is the danger of being crushed by the cars coming together, is it not? A. Not so much. Of course there is one danger, but there is more danger of a man becoming tripped and falling upon the track, because he has to get further in and there is a larger part of the ear projecting out to strike him.
“Q. If a man wants to swing on to one of these cars while in motion, even though the running board should be shortened a little bit, as suggested to you, it would not be necessary for that man to get in between the ears to swing on, would it? A. It depends on how much it is shortened.
Q. Suppose two or three inches ? A. Of course it is just that much. It just makes it that much more dangerous; the further he had to go the more liable he is to be struck. . . .
• “Q. Which one of these steps would a mart grab in stepping on one of these dump cars while in motion? A. He would probably make two grabs; one for the handhold on the end of the car, and the other probably for the one on the end of the platform, or side of the platform, but of course those things depend upon the man. ...
“Q. If these platforms are shortened several inches, a man in making that grab would not have to get in between the dump cars, would he? His body would still be on tbe outside? A. That depends on how much it is shortened, and his method of getting hold; but at the best, you can’t stay- far away.”

Probably the opinion, of the expert witness that the danger of an accident would be increased by the trainman being compelled to go between cars to climb the ladder, is, to some extent, correct. But that necessity did not exist when the plaintiff attempted to climb the ladder to the platform; for there was no car, at the time, in front of the dumper. The injury was due, proximately, to the slipping of plaintiff’s foot in response to a swing of the oar, a pure accident for which the company was in no way to blame, unless the bent condition of the ladder caused it.

It is said if the platform had been of the proper length, plaintiff’s foot would have slipped to the ground instead of onto the rail. But this is speculative and a mere conjecture, not a fair inference from the evidence; for no one can conclude with any assurance where his . foot would have lighted.

It is contended the lower court’s refusal to refer to the jury the matter in question as ground for a verdict for plaintiff, was due to the opinion that plaintiff had assumed the risk of using the ladder and platform as they were, a fact which would not prevent him from recovering under the doctrine established in this State regarding the defense of assumption of the risk, if the ladder was not reasonably safe. ' Whatever reason the lower court may have had for not permitting the plaintiff to go to the jury upon the question of whether, in consequence of the shortening of the platform, the ladder was no longer a reasonably safe appliance, • the ruling was correct; for no evidence was put in or offered that tended to prove it was more dangerous to use than a ladder suspended from a platform of the usual length would have been, except when to climb the ladder it was necessary to go between the cars.

Complaint is made of the exclusion of testimony to prove the ladder was less^safe because of the shortening of the platform. A statement to that effect by the car expert, put on the stand by plaintiff, and the reason why it was less safe (namely, that a trainman would need to go between car.s to ascend the ladder), was excluded when the witness was testifying in chief, but was admitted in the cross-examination, and we have copied it above.

It is so obvious from the evidence, including both the physical facts and the testimony of the only witness who touched upon the question, that the short platform was in no degree the proximate cause nor any cause of the injury to plaintiff, that the exclusion of evidence regarding the rules prescribed for dumper cars by the Master Car Builders Association, a group of master mechanics of some raliroads, was not erroneous, even if it is allowed the testimony would have been competent in a case wherein the facts gave room for a fair inference that an accident was caused by a platform too short to he reasonably safe. Negligence creates no liability for an injury not shown to have been caused thereby. [Jackson v. Butler, 249 Mo. 342.]

The issue of whether the bent state of the ladder made it unsafe and caused the accident, was left to the jury under correct instructions, and found against the plaintiff.

The judgment must be affirmed, and it is so ordered'.

All concur, except Woodson, J., absent.


author:
WALKER, C. J.
      LEAVES, J.

text:
    C. C. CARSON, Appellant, v. JOHN L. SULLIVAN, Secretary of State, et al.
    In Banc,
    July 28, 1920.
    1. INJUNCTION: Against State Officers. The State itself cannot 'be enjoined, but the Secretary of State and other state officers can be enjoined by the courts when they are about to act in an unconstitutional or illegal manner.
    2. -: -: Parties:' Taxpayer. A taxpaying citizen is entitled to maintain injunction against the Secretary of State and Attorney-General to restrain them from preparing and certifying a ballot title to a proposed referendum to the legal voters of a resolution adopted by the Legislature.
    3. REFERENDUM: Amendment to U. S. Constitution: Legislative Ratification. The Supreme Court of the United States has ruled (1) that the- Eighteenth Amendment prohibiting the manufacture, shipment or sale of intoxicating liquors for beverage purposes is within the power to amend reserved by Article V of the Constitution of the United States, and (2) that the provisions of said article declaring that a proposed amendment “when ratified by three-fourth of the legislatures of the several states’’ shall to all intents and purposes become a part of the Constitution, have reference to legislative bodies as they were known at the time the Constitution was adopted, and not to any other body or the people generally; therefore, Held, that the joint and concurrent resolution by which the two houses of the Missouri Legislature ratified said Eighteenth Amendment cannot be referred by referendum petitions to the legal voters for their approval or rejection.

      Held, by GRAVES and BLAIR, JJ., concurring in the result only because a Federal question is involved and the prior ruling of the Supreme Court of the United States has foreclosed freedom of action, (1) that the people become as much a part of the Legislature in states which have made the initiative-and-referendum provision a part of their Constitution as are the two houses of the legislative assembly, and (2) that the term “legislatures” used in Article V of the Constitution of the United States means the legislative processes of the states at the time the Federal amendment it submitted for State action, and does not mean the legislative process or procedure at the time of the adoption of said Constitution.

      Appeal from Cole Circuit Court. — Hon. J. O. Slate, Judge.
    Reversed and remanded (with directions).

      J. Elmer Ball for appellant.
    (1) Respondents are executive or administrative officers of the State of Missouri and are amenable to injunction when they attempt to do what they ought not do. Sec. 6750, R. S. 1909; Merchants’ Exchange v. Knott, 212 Mo.. 616; Ex Parte Young, 209 U. S. 123, 28 Sup. Ct. Rep. 441; Symth v. Ames, 169 U. S. 466, 18 Sup. Ct. Rep. 41.8. (2) Appellant, as a taxpayer and citizen of the State of Missouri, is authorized and entitled to prosecute this action. Sec. 6750, R. S. 1909; Newmeyer v. Railway, 52 Mo. 81; State v. Curators, 57 Mo. 178; State ex reí. v. Woodside, 254 Mo. 580. (3) The Eighteenth Amendment was proposed to the several states of the United States by the Sixty-fifth Congress in the same manner as the preceding seventeen amendments to the Federal Constitution were proposed by the Congress, and as provided by the terms of Article Y of the Constitution of the United States. Black’s Const. Law (3 Ed.), pv 45; 12 C. J. 681-682, secs. 14, 15, 16, 17. (4) Said resolution is not an “act of the legislative assembly” within the meaning of Section 57, Article IY, of the Constitution of Missouri. 1 C. J. p. 912, note 75. (5) The Constitution of Missouri distinguishes within itself between acts and resolutions and uses the terms “act” and “law” interchangeably. Secs. 24, 25, 30, 37, 38, 40, Art. 4; Secs. 12, 14, Art. 15. (6) It was not the intention of the General Assembly of Missouri or of the people of this State to include resolutions of the character of said “Senate Joint and Concurrent Resolution No. 1” within the provisions of the Constitution of Missouri relating to the referendum. In re Opinion of the Justices of Maine, 107 Atl. 673; Hebring v. Brown, 180 Pac. (Ore.) 328; Whittemore v. Terrall, 215 S. W..686. (7) The submission of said “Senate Joint and Concurrent Resolution No. 1” to the voters of the State of Missouri for their approval or rejection is contrary to the terms and provisions of Article Y of the Constitution of the United States and is therefore a nullity, illegal and void, (a) The debates and proceedings of the members of the convention which framed the Federal Constitution sustain this view. Madison’s Journal, pages, 111, 112, 199, 200, 410, 416 and 452; 4 Elliott’s Debates on Fed. Con., pp. 177, 176. (b) The definitions of the term “Legislature” sustain this view. 25 Cyc. 182. (c) The meaning and use of the term “legislature” in other sections of the Federal Constitution sustain this view. Clause 1, Section 2, Article 1; Section 3, Article 1; Section 4, Article 1; Clause 2, Section 1,- Article II, U. S. Constitution. (5) The decisions of the United States Supreme Court on sections of the Federal Constitution containing the term “legislature” sustain this view. State ex rel. v. Hildebrant, .241 U. S. 565. (8) A provision of a State constitution which contravenes the Federal Constitution is null and void. Article YI, U. S. Constitution; 12 C. J. p. 743, par. 3b; Dodge v. Woolsey, 18 How. 331-338, 15 L. Ed. 401; Gibbons v. Ogden, 9 Wheat. 210; Northern Securities Co. v. United States, 193 U. S. 347.

      Frank W. McAllister, Attorney-General, for respondent.
    (1) Appellant’s contention hinges upon the meaning of the word “act,” as employed in that part of Section 57 which defines the power reserved to the people to refer, commonly known as the referendum, the contention being that, as there used, it means only an act of the legislative assembly in the enactment of hills into laws, and does not include resolutions of any character upon any subject. Among the well established and generally recognized rules of. constitutional construction are the following, which are important in the matter at hand: - (a) The primary purpose is to ascertain and give effect to the intent of the farmers and the people who adopted it. (b) It is presumed that words are employed in their natural and ordinary meaning. (c) The construction should not be technical, and should be neither liberal nor strict, (d) The object sought to be accomplished and the evils sought to be prevented should be constantly kept in mind, (e) An exception stated excludes all other exceptions. 12 Corpus Juris, pp. 700, 703. (2) The people of the State wrote into their Constitution in 1875 and into that part of it known as the “Bill of Rights,” which is an express limitation upon the legislative and other power of the state government, the following provision, Section 3 of Article II: “That Missouri is a free and independent State, subject only to the Constitution of the United States; and as the preservation of the States and the maintenance of their governments are necessary to an indestructible Union, and were intended to co-exist with it, the Legislature is not authorized to adopt nor will the people of this State ever assent to any amendment or change of the Constitution of the United States which may in -any wise impair the right of local self-government belonging to the people of this State.” The reference to the people, for their approval or rejection, of the action of the General Assembly in. ratifying the Eighteenth Amendment is strictly in line with the spirit and purpose of this provision. A fundamental canon of 'construction is that “in interpreting clauses we must presume that words have been employed in their natural and ordinary meaning.” Cooley on Const. Limitations (7 Ed.), p. 92; Gibson v. Ogden, 9 Wheat. 188; 12 C. J. p. 705; State ex rel. v. Railroad, 263 Mo. 696. (4) Appellant seeks to give to the word “act” a narrow, technical meaning, which limits its application to one form of legislative action, to acts taken in a particular way and in a particular manner. Legislative action by resolution is frequently taken and is a well recognized method of expression for the legislative will. Applying the rule and giving to the- words ‘ ‘ any act ’ ’ their natural and ordinary meaning, they mean any action the legislative assembly may take within the scope of its power, and certainly include action by resolution, as well as by bill. (5) A settled conviction in the minds of the majority of the people of this State that their legislative representatives did.not always reflect their wishes, led to the adoption of the initiative and referendum. They believed that legislative action in.many instances was not in accord with the will of a majority of the people. Their purpose in the amendment was to provide a means by which the people might reject the action of their representatives in the Legislature and themselves declare and accomplish the will of the majority. Certainly no more important duty comes to the representatives of the people of a State than the approval or rejection of amendments to the Federal Constitution. (6) The provision expressly excepts certain subjects from the operation of the referendum, namely, “laws necessary for the immediate preservation of the public peace, health or safety and laws making appropriations for the current expenses of the state government,-for the maintenance of the state institutions and for the support of public schools.” A glance at these exceptions will disclose that they all belong to one class, that is, that they are all of such character that the delay incident to their reference,to the people at a subsequent election would stop the wheels of government and leave its institutions and those dependent upon it for support from day to day, helpless. It is evident that it is only measures which meet emergencies of this character that are excepted. 25 Ruling Case La.w, p. 230; 12 C. J. p. 699. (7) Appellant’s contention is that the term “legislatures,” as used in the clause “when ratified by the legislatures of three-fourths of the several states,” does not mean the body which exercises the power of legislation for the state, but that the elected members of the legislative assembly are constituted a special body, by Article Y, for ■the purpose of ratifying or rejecting proposed amendments, and that they act under the special authority of that article and not as the representatives of the legislative or sovereign power of the people. Upon this theory rests the contention that the action of the legislature in ratifying or rejecting amendments to the Federal Constitution cannot he referred, to the people under the referendum provisions of the State Constitution, whatever the provisions of the State Constitution may be. Under the American system of government, the people are the repository of all governmental power. Both the national and state governments are republican, or representative, in form, and the distribution of the powers of government into three separate and distinct departments or branches, namely, the executive, legislative and judicial, is an essential principal and element of republican government. The legislative is the law-making branch of the state government and is the representative of the sovereign power of the people. It represents the people in their sovereign capacity and exercises sovereignty, under prescribed rules and limitations, for the people. Because the legislative branch of the state government was and is the repository of the sovereign power of the people of the state and directly representative of the people of the state, the framers of the Constitution provided that proposed amendments to the Federal Constitution should be submitted to the legislatures of the several states. The intention was that the people of the state, in the exercise of their sovereign power, should ratify or reject amendments. At the time of the adoption of the Constitution there was no recognized or practical method of submitting questions of this character to the people directly. The states had no machinery under which a popular expression might be had and the theory and system of the initiative and referendum was undeveloped and practically unknown. In the absence of any means to submit amendments directly to tbe people, tbe convention adopted tbe plan of submitting them to the -people through the representatives of their sovereign power. In this State the body of persons clothed with authority to make laws is the qualified members of the General Assembly and, in certain instances and under some circumstances, the qualified voters of the State. The framers of Article Y of the Constitution had in mind to refer proposed constitutional amendments “to the body of persons in the State clothed with authority to make laws.” They intended that they should go to the legislative branch of the State government for ratification or rejection, and they so intended because that branch was the sole representative of the sovereign power of all the people of the State. State ex rel. v. Polley, 26 S. D. 5; State ex rel. v. Hildebrant, 94 Ohio, 154; Davis v. Ohio, 241 U. S. 565; State ex rel. v. Howell, 181 Pac. (Wash.) 920.

      Henry Kortj.ohn, Jr., for amicus curiae.

    / (1) Missouri having adopted in its Constitution the initiative and referendum as part of its legislative department of the government, the term “legislature” in this State means legislative power or law-making department of the government, and not merely the réppresentative assembly known as the two houses of the Legislature. Mo. Constitution, Art. IY, secs. 57, 44; Art. II, secs. 1, 2, 3; Art. V, sec. 14; Allen v. State, 130 Pac. 1114; Davis v. Ohio, 241 U. S. 565; Pac. Tel. Co. v. Oregon, 223 U. S. 118; State ex rel. v. Howell, 181 Pac. 920; State ex rel. v. Polley, 26 S. D. 5; 18 Am. & Eng. Ency. Law, 822; 25 Cyc. 182. (2) Article V of the United States Constitution, providing among other things that amendments shall become parts of the Federal Constitution “when ratified by the legislatures of three-fourths of the several states, ” means the legislative department of the state government, and is not restricted to the legislature- composed of the two houses. State ex rel. Davis v. Hildebrandt, 94 Ohio St. 154, 241 IT. S. 565; Pac. Tel. Co. v. Oregon, 223 U. S. 118; Art. I, see. 4, Federal Const.; Art. IV, sec. 4, Federal Const. (3) Under the Missouri Constitution it is mandatory that the provisions of the proposed Eighteenth Amendment to the Constitution of the United States be submitted to the people of the State for their approval or rejection. Section 3, Art. II, Mo. Constitution; Chisholm v. Georgia, 2 Dali. 419; Cohens v. Virginia, 6 Wheat. 264; Able-man v. Booth, 21 How. 506; McCulloch v. Maryland, 4 Wheat. 316; Collector v. Day, 11 Wall. 113; Passenger Cases, 7 How. 283; ' Hammer v. Degenhart, 247 U. S. 251; Texas v. White, 7 Wall. 700, 725; State ex rel. v. Roach, 230 Mo. 435.
   WALKER, C. J.

This is a proceeding by injunction instituted by the appellant in the Circuit Court of Cole County to restrain the respondents from preparing aud certifying a ballot title to the proposed referendum -on Senate Joint and Concurrent Resolution Number One adopted by the 50th General Assembly ratifying the Eighteenth Amendment to the Constitution of the United States prohibiting the manufacture, sale or transportation of intoxicating liquors within, the importation thereof into, or thq exportation thereof from the United States, etc., and to enjoin the Secretary of State from furnishing his certified copy of said proposed referendum on said Senate Joint and Concurrent Resolution to be placed upon the ballots of the election to be held in November, 1920.

The respondents’ demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action and for other reasons supplemental to the foregoing and more particularly definitive of the alleged failure of the petition to show that appellant was entitled to the relief prayed for. The circuit court sustained the demurrer, and from the judgment rendered thereon this appeal has been perfected.

I. The amenability of respondents as executive or administrative officers of the State to the restrictive power of the courts in a proceeding of this character has been frequently declared in a number of cases sufficiently similar in their substantial facts to authorize c-pation in support of the regularity of this action. [State ex rel. v. Johnston, 234 Mo. l. c. 350: State ex rel. v. Roach, 230 Mo. l. c. 446; Merchants Exchange v. Knott, 212 Mo. 616; State ex rel. v. Adcock, 206 Mo. 550; State ex rel. v. Goodier, 195 Mo. l. c. 560; State ex rel. v. Public Schools, 134 Mo. l. c. 304; State ex rel. v. Lesueur, 103 Mo. l. c. 262.]

It is not to be understood from these cases that' the State itself can be enjoined, but when its officers act in an unconstitutional or illegal manner they are not to be regarded as acting for the State, and they may be enjoined. [Ex parte Young, 209 U. S. 123; Smyth v. Ames, 169 U. S. 466; 22 Cyc. p. 881, par. b.]

II. Appellant, being, a citizen of the State and a taxpayer, was entitled to prosecute this action. [Sec. 6750, R. S. 1909; Newmeyer v. Railroad, 52 Mo. 81; State v. Curator’s 57 Mo. 178; State ex rel v. Woodside, 254 Mo. 580; 22 Cyc. pp. 886, par. 4a and 897, par. B. n. 94.]

III. These preliminary matters concerning the right of action, the proper parties thereto and the sufficiency of the pleading having been affirmatively settled, there remains for determination the main or vital question as to the right to refer under our State constitutional referendum law an amendment to the Federal Constitution. . ^

The contention of the appellant, which runs counter to and challenges the correctness of the ruling of the trial court, is that the submission pf the ratification of a proposed amendment to the Federal Constitution to the electorate of the State by a referendum is not within the purview of our organic law authorizing that procedure (Sec. 57, Art. IV, Con. Mo.); and that it is contrary to Article Y of the Constitution of the United States, which provides, among other things not pertinent hero, that an amendment thereto shall become a part of the Constitution when ratified by the legislatures of three-fourths of the states.

A recent decision of the Supreme Court of the United States, State of Rhode Island v. Palmer, 40 Sup. Ct. Rep. 486, has foreclosed all discussion of this question in holding that the referendum provisions of state constitutions and statutes cannot be applied consistently with the Constitution of the United States in the ratification or rejection of amendments to that constitution; and that the Eighteenth Amendment prohibiting the manufacture, etc., of intoxicating liquors for beverages is within the power to amend reserved by Article Y of the United States Constitution. In other words, that the “legislatures of three-fourths of the states,” as the words are employed in that article (V), has reference to legislative bodies as they were known at the time of the adoption of the Constitution and not by any other body or the people generally. The action of the respondents, therefore, in attempting to refer the legislative ratification of the Eighteenth Amendment to the people was without authority, and the trial court was in error in so ruling. Prom this it follows that the appellant is entitled to the relief sought. We therefore-reverse and remand this cause with directions to the circuit court to set aside its judgment and enter a decree herein in favor of the appellant perpetually enjoining the respondents from attempting, to refer the legislative ratification of said Eighteenth Amendment to the Constitution of the United States to the voters of the State for approval or rejection.

It is so ordered.

Williamson, Graves, Goode, Williams, and Blair, JJ., concur; Graves, J., in separate opinion, ip which Blair, J., concurs; Woodson, J., absent.

LEAVES, J.

(concurring). — I concur in paragraphs one and two of this opinion and in the result of the opinion. I thus concur solely for the reason that there is a Federal question in the case, and our freedom of action is foreclosed by the ruling of the United States Supreme Court in State of Bhode Island v. Palmer, cited in the opinion of Walker, C. J. I do not agree to the line of reasoning in the Palmer case, supra, and hence this separate concurrence. Nor do I agree to the ruling in Hawke v. Smith (the Ohio case), decided by the United States Supreme Court, 40 Sup. Ct. Bep. 495. In my judgment, the people become as much a part of the Legislature in states having the initiative and referendum in their constitutions, as the two branches of the legislative body. I further believe that the term “Legislature,” as used in the Federal Constitution, means the legislative processes of the State at the time the Federal amendment is submitted for State action, and does not mean the legislative processes or procedure at the time of the adoption of the Constitution. But we are bound by the views of the Federal court, and I therefore concur as above indicated.

Blair, J., concurs in these views, and withdraws his absolute concurrence in the majority opinion.


author: WILLIAMS, P. J.

text:
    VERONICA TROEGER, Appellant, v. JOHN N. ROBERTS et al.
    Division Two,
    September 15, 1920.
    1. DRAINAGE DISTICT: Condemnation of Land: Notice. A notice published by the county court on behalf of a drainage district organized therein, and directed to a number of land-owners “and to all other persons who may own the land hereinafter described or any part thereof or any interest therein and affected by said petition and proceedings, whether specifically named herein or not,” is sufficient under the statute (Sec. 5587, R. S. 1909) to give notice to a land-owner who was not specifically named therein, and to authorize the condemnation of her land for right-of-way of a drainage ditch, and is due process of law, although it names her husband as one of the owners whose land would be affected.
    2. -: -: Assessment of Damages. The statutes (Secs. 5584 and 5585, R. S. 1909) do not require that the viewers and engineer shall assess the damages for lands damaged or condemned for right-of-way of drainage ditches in favor of a person named in their report; they merely provide for assessing damages in favor of each tract of forty acres or less. But when the assessment is made in favor of the land it necessarily follows that the assessment is made in favor of the owner of the land, although the owner’s name is not mentioned in the report or county court order. Hence, if the assessment was made in the manner provided by those statutes, it was an assessment in favor of an owner whose lands were taken.
    3. -: -: Reduction of Damages by County Court: Constitutional Question. The point that the statute (Sec. 5588, R. S. 1909) under which the county court reduced the damages for plaintiff’s land taken for a drainage ditch from $3088.50 to $1088.50 is violative of Section 21 of Article 2 of the Constitution, if not raised in either the petition or reply, but is mentioned for the first time in the motion for a new trial, is not timely raised, and cannot be considered on appeal.
    4. -: -: Damages: Reduction by County Court: Collateral Attack. Whether or not, in an injunction to restrain defendants from going upon plaintiff’s land for the purpose of constructing a drainage ditch, the question whether there was an assessment of damages made in favor of plaintiff, and the question whether the statute in pursuance to which the county court reduced the' damages allowed by the commissioners is constitutional, can be raised, is adverted to, but not decided for the reason that it is not discussed in the briefs, but it is said that the facts that said questions are considered is not to be taken as a holding that either of them. can be raised in such collateral proceeding.
    Appeal from Livingston Circuit Court. — Hon. Arch B. Davis, Judge.
    Affirmed.

      W. W. Davis, Thos. H. Hicklin and Scott J. Miller for appellant.
    (1) There was no notice to the plaintiff of the condemnation proceedings and they are void as to her. There was no assessment of damages in favor of plaintiff. The $3000 allowed by the viewers and attempted to be reduced by the county court to $1000 was not made in her favor or to unknown owners, but to William Troeger, and he, and no other, could be entitled to demand it. Holmes v. Kansas City, 209 Mo. 513; Municipal Security Co. v. Kansas City, 195 Mo. App. 467.
    (2). If Section 5588, page 274, Laws 1913, was intended to authorize the county court to amend the report of viewers by changing the amount of damages allowed, then the section is in conflict with the Constitution of Missouri, Section 21, Article 2, and is void and the act of the county court in amending the report by reducing the damages as assessed by the viewers and confirming the report as amended, and eo'ndeming the land of plaintiff on such amended report, was without authority and is void. Rochester Water Co. v. Wood, 41 How. Prac. 53; In re Middleton, 82 N. Y. 202.

      Paul Di Kitt-for respondents.
    (1) Appellant was duly notified of the condemnation proceedings in which her land was taken -for right of way for drainage ditch. Appellant was legally notified and made a party to said proceedings. Barnes v. Construction Co., 257 Mo. 193; State ex rel. v. Blair, 245 Mo. 696; sec. 5587, R. S. 1909; Bledsoe v. Stallard, 250 Mo. 154. (2) Appellant’s land was condemned as required by the law in force at that time. Art. 4, Chap. 41, R. S. 1909; Laws 1913, pp. 267-281; Laws 1915, pp. 269-275;, Secs. 5584, 5588, Laws 1913, pp. 273-4; Sec. 5596, Laws 1915, p. 270; Secs. 5587, 5592, 5594, R. S. 1909; Sec. 2, p. 281, Laws 1913. In re Drainage District v. Rowling, 269 Mo. 169-171. Appellant was duly notified of these proceedings and was legally in court at the time the report of the viewers was heard. See. 5587, R. S. 1909; Barnes v. Construction Co., 257 Mo. 193. (3) The statutes in question are not unconstitutional. None of appellant’s rights, given by Section 21, Article 2, Constitution of Missouri, 1875 were denied. Sec. 5584, Laws 1913, p. 274; Sec. 5586, Laws 1915, p. 270; Secs. 5587-5589, R. S. 1909; In re Essex Avenue, 121 Mo. 103; Turlow v. Ross, 144 Mo. 239; Shively v. Lankford, 174 Mo. 548-551; Grossman v. Patton, 186 Mo. 668. (4) The sole issue made by the pleadings, and involved on this appeal, is whether appellant was properly notified of, and a party to, the proceedings to take her land for a drainage ditch; the question of the amount due her as damages, whether she is entitled to $3,000 or $1,000 as her damages, is not properly here. That question was not within the issues made by the pleadings. Spindle v.‘Hyde, 247 Mo. 52; Newham v. Kenton, 79 Mo. 385.
   WILLIAMS, P. J.

This suit, originating in the Circuit Court of Livingston County, seeks to enjoin defendants from going upon certain described land of plaintiff’s for the purpose of constructing a drainage ditch.

A temporary injunction was first issued and after a final hearing the temporary injunction was made permanent until such time as defendants paid plaintiff the sum of $1088.50, that being the sum allowed as damages in the condemnation proceeding in favor of the land owned by plaintiff. Thereupon plaintiff duly appealed. There is no dispute as to the facts.

The pleadings may be sufficiently understood from the following summary:

The petition alleges: (1) that defendants Hill, Beat and McCarthy are the members of the County Court of Livingston County, Mo., and as such county court have laid out and are preparing to construct a certain drainage ditch across the land of plaintiff; (2) that defendant Broaddus is the civil engineer appointed by said county court to act with the viewers appointed by said court in locating etc., said drainage ditch, and that said engineer under direction of said court has entered into a contract with defendant Roberts whereby said Roberts agrees to contract said drainage ditch across the land of plaintiff, describing it; (3) “That defendants have never acquired any right or license to construct said drainage ditch through and across the said-land of plaintiff; that plaintiff has never been paid anything, by defendants or any other person or persons’ for the privilege of constructing said drainage ditch through and across plaintiff’s said land. That should said drainage ditch be constructed as so contracted for and contemplated, Grand River, which is a large stream of water, would be thereby caused to flow through said ditch, through and across plaintiff’s said land and plaintiff’s said land would be thereby cut in two, leaving plaintiff’s residence and about twenty acres of her land on one side of said river and the remainder of plaintiff’s land, about fifty-five acres on the other side thereof without any convenient or practical way of crossing said river for the purpose of farming and cultivating said land. That the said defendants are threatening to and are about to, and will unless restrained by this court, enter upon said land of plaintiff and construct said drainage ditch through and across the same without the consent of and to the irreparable damage and injury of plaintiff, in violation of Sections 20, 21 and 30 of Article 2 of the Constitution of the State of Missouri, and also in violation of Article 14 of the Amendment of the Constitution of the United States of America. That no proceedings have been taken by defendants as required by law, for the ascertainment and payment of damages to plaintiff in consequence of the construction and maintenance of said drainage ditch through and across plaintiff’s said land. That plaintiff has no adequate remedy' at law in the premises.”

The prayer of the petition asks that defendants “be forever perpetually enjoined from in any manner proceeding with the digging of said ditch across the plaintiff’s land.”

The answer contains (1) general denial, (2) alleges that Drainage District No. 26, Livingston County, Mo., has been duly organized under Article 4 of Chapter 41, Revised Statutes 1909, and that a contract has been entered into with defendant Roberts for the construction of said drainage ditch. ‘ ‘ That all legal steps have been taken and notices given and due process of law had in the organization of said district and in the condemnation of the right of way for the ditch and other improvements in said district, and over and across the lands claimed to be owned by this plaintiff and in her petition described; the right of way over said lands has been duly and legally condemned, had and obtained, and said district and the contractor has the right to go on and over said lands for the construction of the ditch and other improvements therein, and for the purpose of carrying out the object of the organization of said district. Defendants say that damages have been allowed for land taken and otherwise, which will accrue to said land described in plaintiff’s petition by reason of the location, construction and maintenance of the ditch and other improvements in said district in the sum of one thousand eighty-eight dollars and fifty cents, which said sum is here now brought into court, and if plaintiff owns said land same is now tendered to her as the owner of said land. Plaintiff says that this suit was instituted immediately upon the execution of the contract with defendant Roberts for the construction of said ditch and other improvements in said district and before any attempt or offer had been made to enter said land or any part thereof, for any purpose, and before a tender of the amount of damages so allowed could be made. Defendants having fully answered, ask that the preliminary restraining order issued herein be set aside and annulled and plaintiffs petition dismissed, and for nought held, and for such further relief in the premises to which they may be entitled.”

We find no reply in the record. Reference will be made to the facts as occasion requires in the course of the opinion.

I. It is first contended that plaintiff’s land was never properly condemned for the reason that the county court never acquired jurisdiction over the person of plaintiff.

The exact point relied upon by appellant is that her name was not mentioned in the notice which was published by the county court as provided by Section 5587, Revised Statutes 1909. No other objection is made to the notice other than that it does not contain the name of plaintiff.

It is true the notice contained the name of plaintiff’s husband as the owner of the land, but it does not contain the name of plaintiff. Plaintiff’s land together with other land affected was properly described and the amount of damages allowed each tract of land was stated in the said notice. The notice after setting forth the names of about twenty alleged landowners contains the following: “and to all other persons who may own such land hereinafter described or any part thereof or any interest therein and affected by said petition and proceedings, whether specifically named herein or not.”

The above provision was sufficient under Section 5587, Revised Statutes 1909, to give plaintiff notice of the proceedings, although not specifically named therein, and by the notice thus given the county court acquired jurisdiction over the person of plaintiff. This exact point was ruled against appellant’s contention in Barnes v. Construction Company, 257 Mo. 175, l. c. 193; and State ex rel. Coleman v. Blair, 245 Mo. 680, l. c. 685, In the Barnes case, supra, Brown, J., speaking for Court in Banc, said:

“The notice issued to landowners on July 3, 1911, by the County Clerk of Platte County was directed to some of the plaintiffs in this action and generally to all other persons owning lands to he affected hy the pro posed drainage ditch. That notice complied with Section 5587, Revised Statutes 1909, and was sufficient to give the court jurisdiction over each and every person owning lands within the drainage district, and the appellants, who were then part owners of the D. W. Hutson lands, were accorded every opportunity required hy law to appear in the county court and resist the judgment condemning the right of way for the proposed ditch.
“In the case of State ex rel. Coleman v. Blair, recently decided hy this court (245 Mo. 680), it was held not necessary in the notice to landowners of the assessment of benefits and awarding of damages arising out of the construction of a proposed drainage ditch to designate every person appearing by the deed records to own lands within the district. The names to be inserted in the aforesaid notice are usually obtained by the viewers while inspecting and locating the right of way for the ditch, and such notice should, in addition to the names returned by the viewers, also designate generally all other persons whose lands will be affected by the proposed improvements. Such notice, when duly published, is due process of law.”

For the reasons stated in the Barnes case we disallow appellant’s contention.

II. It is further contended that there was no assessment of damages made in favor of plaintiff. Whether or not this point can properly be made in this a collateral attack upon the finding and order of the county court we do not determine. This phase of the matter is not discussed in the briefs of learned counsel. ' We make mention of the matter so that this case may not be considered as holding that such an attack can be made in this kind of a proceeding. We will leave that point where counsel have left it. What we say herein should not be construed as passing either way on the question.

But even though it be conceded arguendo that such an attack can properly be made in this proceeding, still we find nothing of merit in the point. The report of the •viewers as provided by Section 5584, Revised Statutes, 1909, makes a finding as to “the damages to each tract of forty acres or less.” We find nothing in said section requiring that this damage he assessed in favor of any designated person. The section requires that an engineer shall “make and return a schedule of all lots and lands and of public and corporate roads or railroads that will be benefited, damaged or condemned by or for the improvement and the damage or benefit to each tract of forty acres or less and make separate estimates of the cost of location and construction, and apportion the same to each tract in proportion to the benefits or damages that may result to each.” (Italics ours).

Section 5588, Revised Statutes 1909, undertakes to give the county court power to amend the said report of the viewers and engineer.

It will thus be seen that the statutes in question do not-require that the viewers and engineer shall assess the damages in favor of a person to be named in the report. They merely provide for assessing damages in favor of each tract of forty acres or less, and when the assessment is made in favor of the land it necessarily follows that the assessment is in favor of the owner of said land, although the owner’s name is not mentioned in said report or order. We are therefore of the opinion that in the case at bar the assessment of damages in favor of appellant’s land describing it in forty-acre tracts, the court having acquired jurisdiction of the person and property of said appellant, wás in fact in favor of appellant and that for this reason, if for no other, appellant’s present contention must fail.

Ill The county court, acting under Section 5588, Revised Statutes 1909, reduced the amount of damages assessed by the viewers and engineer in favor of appellant’s land from $3088.50 to $1088.50. Appellants now contend that Section 5588, supra, which undertakes to give the county court power to reduce the amount of damages, is void because in conflict with. Section 21 of Article 2 of our State Constitution.

Again calling attention to the fact that what is said in this behalf should not be construed as a holding one way or the other on the point as to whether such attach could, if raised in time, be made in this sort of a proceeding, we dispose of the contention by calling attention to the fact that the point, even if one properly to be made in this proceeding, was not timely made.

A constitutional question should be raised at the first opportunity. In this ease appellant had an opportunity to raise the question in her petition and also in her reply. She mentions it in neither, but mentions it for the first time in the motion for a new trial.

This was too late under many former rulings of this court (Speer v. Railroad, 264 Mo. 265; Sheets v. Insurance Co., 226 Mo. 613, l. c. 618 and cases therein cited), and the point is for that reason disallowed.

No other attach is made upon the judgment below. The judgment is therefore affirmed.

All concur.