author: FARIS, J. PER CURIAM.

text:
    MUNICIPAL SECURITIES CORPORATION v. KANSAS CITY, Appellant.
    In Banc,
    June 1, 1915.
    1. APPELLATE JURISDICTION: U. S. Constitution. If the Fourteenth Amendment to the Constitution of the United States is . pleaded and invoked by plaintiff, and is contended to affect the rights of the parties, appellate jurisdiction of an appeal from a judgment for plaintiff is in the Supreme Court, although the amount of money in dispute is less than $7500.
    2. APPEAL: Affidavit and Motion for New Trial. Although the abstract of the record proper does not contain either the affidavit for an appeal or the motion for a new trial, yet if its recitals show that both the motion and affidavit were timely filed, and they are set out in the bill of exceptions, the abstract, under Rule. 32, is, in those respects, sufficient.
    3. -: Motion for New Trial: Sufficient Assignment. An assignment in the motion for a new trial in a law case, that “the finding is against both the law and evidence and against the law under the pleadings,” warrants the appellate court in determining whether there is any law or evidence to sustain the judgment.
    4. SPECIAL TAX BILLS: Against Property Condemned for City Purposes: Liability of City. By an ordinance approved January 24, 1901, the city authorized the construction of a district sewer, to be paid for by special tax bills issued against the property within the district, and the contract was entered into February 28, 1901. By ordinance approved October 3, 1889, the city authorized the condemnation of certain property within this subsequently-formed sewer district, for a parkway, and judgment in the condemnation proceeding was rendered September 14, 1901, and affirmed in the Supreme Court June 4, 1902, and thereafter the city paid for and took possession of the lots. While said condemnation was pending on appeal, the contractor completed the sewer, and the city issued him tax bills in payment for the work, March 15, 1902, among others, tax bills against lots which had been taken by the city for the parkway, and his contract provided that the ordinance “shall not render the city liable to pay for such work or any part thereof otherwise than by the issue of special tax bills” and the charter provided that “the city shall in no event nor in any manner whatever be liable for or on account of the work done in constructing” said sewer, but that it should be paid for in special tax bills, which should be a lien on the property described in them. The contractor assigned the bills to the plaintiff, who sues the city for the amount of them, as upon contract. Held, that the Constitution of Missouri (Sec. 48, art. 4) and the statute (Sec. 2778, it. S. 1909) absolutely forbid the use of municipal funds in payment of said tax bills, since they forbid the payment of an obligation arising out of a contract unless the same is within the scope of the city’s powers, and the charter prohibited the making of a contract to expend city funds until an appropriation therefor was antecedently made; and as said suit is not founded on tort, that is, as for a conversion or destruction of property upon which the lien of the tax bills would ordinarily attach, no judgment for plaintiff can stand. [Distinguishing In re Paseo, 78 Mo. App. 578, and Ross v. Gates, 183 Mo. 338.]
    5. -: Liens: Condemnation: Title Relating Back to Judgment. The title of the city to lots taken by condemnation for a public highway relates back to the date of the judgment confirming the verdict of the jury, and if an appeal is taken from the judgment and that is affirmed, the title of the city still relates 'back to the date of the judgment; and special tax bills issued after that date against lands taken by the judgment for the city, do not constitute a prior lien, although issued while said appeal was pending in the appellate court.

      Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.
    Reversed.

      John G. Park, A. F. Smith, Ingraham D. Hook, A. F. Evans and Jay M. Lee for appellant.
    (1) Kansas City is not liable. First. Tbe charter of Kansas City provides: (a) No special tax bill shall be issued against city property, but a certificate shall be issued by the Board of Public Works, (b) A street, avenue or highway is exempt from assessments for sewer construction. ' Second. The ordinance for the construction of the District Sewer No. 146 and the contract with Walsh, plaintiff’s assignor, so provides. Third. Walsh released Kansas City from all liability. (2) Plaintiff’s remedy was mandamus. An examination of plaintiff’s petition will disclose that it is virtually a suit upon special tax bills.. There were introduced in evidence seventy-five tax bills identical with those issued against private property. The judgment is upon each one of the seventy-five counts in the plaintiff’s petition, each of which is based upon a tax bill for the face of the tax bill and with interest thereon since the date of its issuance. In the contract with Walsh there was no provision for the payment, by the city of any amount whatsoever, but the whole cost was to be paid for in special tax bills. Charter of 1898, secs. 10, 11 and 14, art. 9. Kansas City is entitled to the possession of land condemned for parks or boulevards when the compensation adjudged to be paid therefor is made or paid into court. Sec. 28, art. 10, charter 1898. The passing of the title to land condemned relates back to the date of the judgment of thó confirmation of the verdict of the jury whenever the proceedings are finally affirmed and the awards paid. In re Paseo, 78 Mo. App. 521. The judgment of confirmation in the condemnation proceeding was rendered September 14,1901; the tax bills for the sewer construction were not issued until March 15, 1902. It is apparent that the city owned the property in fee simple under the “Paseo Extension” condemnation at the time the tax bills were issued to Walsh. It is apparent, too, that the city is not liable on special tax bills issued against land which it owns in fee simple, but a certificate of indebtedness- therefor must be issued by the' Board of Public Works and the amount for which the certificate standp is appropriated for the holder thereof by ordinance of the Common Council. The provisions of the charter relative to taxation or liability for special assessments must be strictly followed and con-' strued. Westport v. Mastín, 62 Mo. App. 654. (3) The charter furnishes a further and, if possible, more' vital reason for non-liability of Kansas City in. this case. Section 10, article 9, provides that the cost of the sewer shall be spread over the area of the sewer district “exclusive of streets, avenues, alleys and public highways.” And section 14, article 9, provides that the certificate heretofore mentioned, which the Board of Public Works shall issue against -property owned by Kansas City in fee simple for special improvements shall not apply to “any land' . . . used as-a street, avenue, alley or public highway. ’ ’ The property against which the seventy-five tax bills were issued was previously condemned by Kansas City for a public highway. The title to ordinance No. 1306-7 discloses its purpose to be: “An ordinance to open and establish a public parkway in the south park district in Kansas City, Missouri.” A description of the property proposed to be taken therein discloses that it is a long ribbon-like piece amounting to a wide street or avenue. Kleopfert v. Minneapolis, '90 Minn. 158. Inasmuch as the city acquired the title to the land against which these tax bills were issued for a public parkway some time previous to the issuance of the tax bills and that the lands were therefore not snch that tax bills eonld be issued against them, this proceeding cannot be maintained.

      W. R. James and Scarritt, Scarritt <& Jones for respondent.
    (1) The appellant’s record is insufficient to confer jurisdiction on this court, (a) The record proper as there abstracted does not show the filing of a motion for new trial. This is fatal. Sheridan v. Post, 140' Mo. App.. 96; Harding v. Bedoll, 202 Mo. 625; Alt v. Dines, 227 Mo. 41&. (b) The record proper as there abstracted fails to set out any affidavit for appeal, or the substance of any such affidavit. This is fatal. Shemwell v. McKinney, 214 Mo. 692; Greenwood v. Parlin-Orendorff Co., 98 Mo. App. 407. (2) There is no merit upon the record in this court in any of the alleged errors of the trial court recited in defendant’s motion for a new trial, because appellant’s abstract of record does not purport to set out all of the evidence adduced at the trial, nor does it recite any exceptions to the. testimony or rejection of evidence by the court, nor does it complain of the law as declared by the court at the request 'of the plaintiff. (3) There is no merit in the city’s contention, advanced for the first time in this court, that the lots or tracts of land described in the tax bills were not chargeable for the cost of the sewer on the ground that they were not then (March 15, 1902) private property, but were a street, (a) No such issue is raised by the pleadings. The petition charges that at the time the sewer work was completed and tax bills issued the lots were owned by and in the possession of private individuals as owners; the answer expressly admits and. states that the tax bills were issued against these lots, but that the certification spread upon the records of the Board of Public Works apportioning a certain charge against each of these lots, followed by the delivery of special tax bills, did not impose a liability upon the city as the owner of the lots in question, in fee simple absolute, as contemplated by section 14, article 9, of the city charter, (b) Under all the proofs construed in the light of the express declarations of the Constitution of the State contained in the Bill of Rights (Art. 2, sec. 21), and the provisions of the city charter in respect to issuance of tax bills to pay for sewer work and the interpretation put upon those provisions by the officers of the city at the time, there can be no question that the officers of the city, whose duty it was to issue special tax bills, could not have done otherwise than issue the bills against these lots. (4) When the tax bills were issued (March 15', 1902) the lands charged were not a street, boulevard or parkway, but were lots and tracts of land owned by and in the possession of private individuals. It is true that on that date a condemnation proceeding was pending, but it is equally true on the showing made in this record that the city had the absolute right at that time and for months thereafter to dismiss its proceeding, take nothing thereby and be liable to no individual for what it had already done. If these lots were private property at that time there can be no question but that the assessing officers did their duty, and their full duty, in' levying the assessments and issuing the bills against-those lots; and in that view of the case it is absurd' to talk of mandamus as a remedy to make them do something different. There is no charter authority for them to do now anything different from what they did then. If these lots at that time were public property they were not a street, nor highway, because property occupied by stores and residences is not a street or highway; and therefore if they were then owned by the city in fee simple absolute they would be chargeable as city property with their pro rata share of the cost of the work. (5) The amounts apportioned against the lands in question could not have been deducted from the condemnation award for these lands because the value of the lands in the condemnation proceeding was fixed at a trial had June 3, 1901, and the improvements for which the assessments were levied were not completed, nor were tax bills issued therefor, until March 15, 1902. In re Paseo, 78 Mo. App. 518. (6) The city, having confiscated the plaintiff’s property in these tax bills by procuring a final judgment long after the tax bills were issued, by divesting the property owners of their title, possession and ownership of the lands charged, and vesting the same in the city for public use and refusing to pay the'amount of these assessments, is clearly liable to the plaintiff’under the State and Federal constitutions guaranteeing persons against the deprivation of their property without due process of law. (7) It is absurd to. assert under this record that the contractor to whom the tax bills were issued by the city in good faith, and receipted therefor in good faith as full settlement of the contract price, is estopped by that receipt from maintaining this suit. Paving Co. v. Denver, 72 Fed. 336; Paving Co. v. Harrisburg, 64 Fed. 283; Electric Light & P. Co. v. Ft. Dodge, 115 Iowa, 568; Pipe & Tile Co. v. Callahan, 125 Iowa, 358; Oster v. City of Jefferson, 57 Mo. App. 485; Fisher v. St. Louis, 44 Mo. 482; Paving Co. v. Chicago, 139' 111. App. 121.
   FARIS, J.

This is an action at law in seventy-five counts for divers sums of money aggregating in all the amount of $3924.42. Plaintiff sues as the assignee of one Michael Walsh, who made a contract with defendant city to construct certain sewers therein.

All of the seventy-five counts in the amended petition were identical. This petition, in the view which we take of the case, is important, and in connection with the tax bills and the assignments thereof, is decisive of the case. In fairness, and for clearness’s sake we set out below one of these counts in full, omitting merely formal parts, as follows:

“Now comes plaintiff and for cause of action against defendant alleges that plaintiff is a corporation duly organized and existing under the laws of the State of Missouri, and the defendant is a municipal corporation duly organized and existing under the Constitution and laws of the State of Missouri.

“That by an ordinance of Kansas City, No. 16219, entitled, ‘An ordinance to establish and cause to be constructed a district sewer in Sewer District-No. 146,’ approved January 24, 1901, said defendant, Kansas-City, provided'that a district sewer should be constructed in Sewer District No. 146- in said Kansas City as designated by said ordinance.

“Plaintiff alleges that bids for doing the work provided for by said ordinance were duly advertised for by said Kansas City and a contract was duly entered into with Michael Walsh to construct the said sewer, he being the lowest and best bidder therefor.

“Plaintiff alleges that pursuant to said contract and ordinance said Michael Walsh constructed the sewer provided for by said ordinance and that by the terms of said contract and ordinance said sewer was to be paid for by special tax bills against the real estate within the said Sewer District 146', as provided by the' charter of Kansas City.

“Plaintiff alleges that Lot 1, Block 1, C. EL Pratt’s Yine Street Addition, is located within said Sewer District No. 146 and that at the time said work was done and tax bills therefor were issued, the owner of said property held the same subject to certain proceedings to condemn said lot for a public parkway in the South Park District in Kansas City, Missouri, known as the ‘Paseo Extension,’ under ordinance No. 13067, entitled, ‘An ordinance to open and establish a public parkway in the South Park District in Kansas City, Missouri,’' approved October 3,18991. That by said ordinance last mentioned it was ordained that said Lot 1, Block 1, and other property should be condemned for the purpose of a public parkway. That under said ordinance, proceedings were begun in the circuit court of Jackson county, Missouri, for the condemnation of land described in said. ordinance as required by law. The owners of said lands at the date said condemnation ordinance was enacted were properly made parties to the proceedings and a hearing was had to determine the value of the property taken and a verdict in said case was rendered in the circuit court of Jackson county, on the 4th day of June, 1901.

“Plaintiff alleges that motions for a new trial were filed in said cause, which were duly overruled and said verdict was duly confirmed and judgment was rendered in said cause on the 14th day of September, 1901, by said circuit court.

“The plaintiff further alleges that said cause was appealed to the Supreme Court of the State of Missouri, October 4, 1901, and that upon said appeal said judgment of the circuit court was suspended until affirmed by the Supreme Court, and was so affirmed June 4,1902; and that subsequently to that date said Kansas City paid for and took possession under said condemnation proceedings of Lot 1, Block 1, C. H. Pratt’s Vine Street Addition, as a public park and now holds the same as such.

“Plaintiff alleges that while said condemnation case was pending upon appeal in the Supreme. Court, said Michael Walsh completed the work under his contract for the construction of district sewers in Sewer District No. 146 under said Ordinance No. 16219; and that the Board of Public Works of said city thereupon ascertained the share of the cost of said work for which the said lot and the owner thereof and the said city were justly liable, and the said board certified the said amount both upon its records and by a certificate or tax bill wbicb it then issued to said Walsh on March 15, 1902, in payment of the proportionate share of .the cost of the work of constructing said sewer chargeable to or on account of said lot as provided by law. That the said certificate or tax bill was No. 84, and was issued against Lot 1, Block 1, C..H. Pratt’s Vine Street Addition, for the sum of $43.20, being the proportionate part of the cost of the said sewer required to be paid on account of said lot under the charter of Kansas City.

“Plaintiff alleges that for valuable consideration, said Michael Walsh heretofore sold and assigned said certificate or special tax bill to this plaintiff, who is now the owner and holder of the same, which is hereto attached, herewith filed and made a part of this petition.

“Plaintiff alleges that it is advised by counsel and believes, and therefore charges the fact to be, that by reason of the prior judicial determination of the value of said property and the judgment of condemnation thereon, in said condemnation proceedings, said tax bill never became a lien upon the value of said lot awarded to the owner thereof, in said condemnation proceedings, but that upon the final determination of said condemnation case, the defendant, Kansas City, became and is liable to pay said amount of the said certificate or tax bill with interest thereon, and that Kansas City cannot by an act of itself not consented to by the plaintiff, either by judicial proceedings in the nature of condemnation or otherwise, destroy the plaintiff’s right to collect the cost of the said work according to its said contract, and in support of this claim the plaintiff invokes the Fourteenth Amendment to the,Constitution of the United States guaranteeing the protection of its property by due process of law and as against the acts of states.

“Plaintiff alleges that prior to the commencement of this action it offered to surrender to the Board of Public Works and to Kansas City said certificate or tax bill issued as aforesaid if the said city or said board should believe aud hold that the said certificate or tax bill was not a certificate of said Board of Public Works conformable to the provision of section 14, article 9, of the charter of Kansas City, and to accept in lien thereof such a certificate as is provided for by said section 14, but said city and said board refused to accept the same or issue a new certificate in lieu thereof and denied all liability for the said charge.

“Plaintiff states that defendant has failed to pay the amount of said certificate or tax bill, although payment thereof was demanded March 15, 1902.

£ £ Plaintiff alleges that by reason of failure to pay said certificate or bill, of any part thereof, and by reason of its action in the premises, plaintiff is entitled $o recover of defendant the amount so certified by said board as lawfully chargeable against said lot, with interest as therein provided at the rate of ten per cent per annum.

££ Wherefore, plaintiff asks judgment against defendant for the sum of $43.20 with interest from March 15, 1902, at the rate of ten per cent per annum and for costs of this action.”

The tax bill referred to and made a .part of the foregoing petition seems to have been the usual and ordinary special tax bill issued in payment for improvements, the costs of which are apportioned against the adjacent or abutting private real property. Said tax bill was payable in four annual instalments (including the first or initial cash payment), and as to the attachment and nature of the lien created thereby, a pertinent part of the said tax bill thus provided:

KANSAS CITY SPECIAL TAX-BILL.
ISSUED ON THE INSTALMENT PLAN.
This certifies that the following' described real estate in the corporate limits of Kansas City, county of Jackson, Missouri, as follows, to-wit: Lot 1, Block 1, C. H. Pratt’s Vine Street Addition, has been charged with the sum of forty-three dollars and twenty cents, as a special tax for constructing a sewer in Sewer District No.146, as provided by Ordinance No. 16219, of Kansas City, Missouri, entitled, “An Ordinance to establish and cause to be constructed a district sewer in Sewer District No. 146,” approved January 24, 1901. Said work has been completed according to contract by Michael Walsh, contractor, to whom this special tax bill is issued in part payment therefor, and the sum mentioned has been duly assessed and apportioned against the aforesaid land, being the exact amount chargeable against said land, as provided by law for its proportion of the cost of such work as a lien against said land for a period of one year after the last installment specified herein shall have become due and payable, and no longer, unless within such year suit shall have been instituted to collect this tax bill, and notice of the bringing of such suit shall have been filed with the city treasurer, in which case the lien of this tax bill shall continue until the termination of such suit, and until the sale of the property under execution on the judgment establishing the same, and no default in the payment of any previous instalment hereinafter mentioned shall' operate to diminish the period during which such lien shall continue.

Upon the trial below judgment was rendered for plaintiff upon each of tbe said seventy-five counts, aggregating tbe sum mentioned, and defendant, according to tbe usual procedure, has appealed.

Other details necessary to an understanding of tbe case will be found set out in tbe opinion, where additional facts are stated in connection with tbe point's discussed.

OPINION.

I. We get jurisdiction because tbe Fourteenth Amendment to tbe Federal Constitution is pleaded and invoked and said to be involved.

At tbe outset two contentions of respondent meet us: (a) that tbe record proper shows neither an affidavit for appeal nor tbe filing of a motion for a new trial, and (b) that no legally tangible matter is presented for our review by tbe motion for a new trial.

Counsel for respondent have evidently not read the appellant’s abstract with care, and also they have overlooked the provisions of Rule 32 of this court adopted December 10, 1912. The record entries showing the filing of, and the orders of court touching the motion for a new trial, and the affidavit for appeal, as the abstract sets them out, are as follows:

“Thereafter on January 25, 1910, during the said January term, 1910, of said court and within four days after said finding and judgment, defendant filed its motion for a new trial. Said motion is hereinafter set out in the bill of exceptions and is hereby adopted and made a part of this abstract of the record as though printed in full at this place.

“January 29,1910, during said January term, 1910, of said court, said motion for a new trial was submitted to the court and upon due consideration, by an order duly entered and made of record, was, upon January 29,1910', during said January term, 1910, of said court, by the court overruled; to which action of the court in overruling defendant’s said motion for new trial the defendant at the time excepted and still excepts.

“March 22, 1910, and during the said January term, 1910, of said court, defendant filed its application and affidavit for an appeal to the Kansas City Court of Appeals, which appeal was upon March 22, 1910', by an order duly entered and made of record, allowed as prayed to the Kansas City Court of Appeals. ’ ’

The bill of exceptions, as the record shows it, contains the motion for a new trial in full, as also exceptions to the action of the trial court in overruling it. The affidavit for appeal is copied in full in the bill of exceptions and the contents of such affidavit fully comply with the law. This contention is therefore disallowed.

II. Upon the point (b) made by respondent .that the motion for a new trial presents no matter for our review when viewed in the light of the record, we note that complaint is made of error in refusing declarations of law, when none was asked; of the refusal to admit evidence of defendant, when none was refused, and of the admission of incompetent evidence for plaintiff when no such objection is kept alive' here in the briefs for our examination. But defendant has in ‘five separate assignments of error rung* the changes upon the complaint, in haec verba, “that the finding is against both the lato and evidence and against the lata under the pleadingsand while this is a jury-waived law case, we think we are warranted in looking to see whether there is any law or evidence which can sustain this judgment. Y7e may not weigh the evidence ; for the trial judge alone had that privilege and duty. We may only look and see if there be any substantial evidence whatever in the case, which, when applied to the case made by the pleadings will, as a matter of law, permit this judgment to stand. We disallow this point to respondent, conceding, however, that it is well taken as to all but the point last above noted.

III. Coming now to the contentions of appellant (whom for clarity we shall call defendant), we note that the only point made and saved properly for review is that we mention above, which we repeat, is ■ saved, or so sought to be, by five separate assignments in defendant’s motion It would be doleful satire, indeed, if no point could'be said to be preserved'after so great labor and effort to save it. for a new trial.

The facts are neither contradicted nor disputed. The dispute is alone upon the legal effect of the facts. The defendant offered no evidence whatever, except a receipt to the defendant city, given on March 15, 1902, by the contractor Walsh, when the tax bills here sued on were issued to him. This receipt, omitting formal parts, sewer number and signature, is as follows:

“Received this day the above mentioned special tax bills, amounting to the sum of $71,521.32; in full for work done on sewer constructed in above named district, and of all claims against Kansas City on account of above mentioned work.”

The contract made by said Walsh with defendant, among other provisions, contained the following:

“Section'12. General Stipulations. It is further agreed that the passage of the ordinance hereinabove referred to and the doing of the work embraced in this contract without any proper petition of the Common Council from the real estate owners to have said work done, shall not render the city liable to pay directly or indirectly, for such work or any part thereof otherwise than by the issue of special tax bills, and the said first party shall assume all risks as to the validity of such special tax bills and take the same without recourse against Kansas City in any event.

“Sec. 15. And the said party of the first part further agrees that he will not be entitled to payment for any portion of the aforesaid work or materials, until the same shall have been fully completed in the manner set forth in this agreement to the satisfaction of the city engineer, and that he will then receive pay according to the above schedule of prices in certified bills of assessments of special taxes against and upon the lands in said sewer district, as provided by law, and that his receipt therefor shall be in full of all claims against the city on account of said work.

‘ ‘ Sec. 16. . . . That special tax bills be issued for the work of improvements herein provided for and shall be made payable in four equal installments payable and collectible and in all respects in compliance with the provisions of section 23, article 9 of the charter, of Kansas City.”

The provisions of the charter of Kansas City in effect when the contract was made with Walsh and likewise when the tax bills were issued to him, provided, relevant to the questions here troubling ns, thus:

“As soon as the work of constructing, changing, diminishing, enlarging or extending any district sewer shall have been completed under a contract let for the purpose, the board of public works shall compute the whole cost thereof, and apportion and charge the same as a special tax against the lots of land in the district, exclusive of the improvements, and in the proportion that their respective areas bear to the area of the whole district, exclusive of the streets, avenues, alleys and public highways, and shall, except as hereinafter provided, make out and certify in favor of the contractor or contractors to be paid, a special tax bill for the amount of the special tax against each lot in the district. The city shall in no event nor in any manner whatever be liable for or on account of the cost of work done in constructing, changing, diminishing, enlarging or extending any district sewer, except as hereinafter provided.” [Sec. 10', art. 91, p. 147, Charter of Kansas City 1898.]

The exceptions creating liability against the city, noted in the last four words of the concluding clause of the above excerpt, are to be found in sections 11 and 14 of article 9, pp. 148 and 150, charter of Kansas City of 1898. The said exception in the section first above, in substance provides that in cases of the construction of joint district sewers the city may, if it be so provided both in the ordinance and in the contract, pay a specific part of the cost of such sewers. Neither the ordinance nor the contract so provided in this case. The other exception may be best shown by setting out, as we do below,-the whole of said section 14, in which said exception occurs, thus:

“When the city shall own in fee simple absolute any . lot or parcel of land, or hold any land not used as a street, avenue, alley or public highway, it shall out of the general fund pay its proper share of the cost of any such work to be paid for in special tax hills as though a private owner of such laud, but there shall be no tax bill against any land so owned or held by the city. The board of public works shall ascertain the share for which the city shall be justly liable, and the amount so ascertained shall be certified to by the board of public works.”

The Constitution of Missouri forbids the use of municipal funds in payment of any obligation arising contractually under circumstances such as are before us. [Sec. 48, Art. 4, Constitution 1875; State ex rel. v. Dierkes, 214 Mo. 578.] The statute of the State likewise forbids the expenditure of such funds upon obligations arising from contract, as will be seen by an examination of section 2778, Revised Statutes 1909, which reads thus:

“No county, city, town, village, school township, school district or other municipal corporation shall make any contract, unless the same shall he within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing.”

The charter of Kansas City had in it at all the times within the period of the record herein, another provision which is pertinent and which prohibits the making of a contract to expend city funds till an appropriation therefor has been antecedently made and making void ab initio any contract made in contravention thereof. [Sec. 30, Art. 4, Charter Kansas City 1898,]

It follows from a consideration of all of the above prohibitions that no liability for the tax bills, or for the payment of the money therein mentioned and which is based in anywise upon contract, conld possibly arise against the defendant upon any view. The suit here is upon a tax bill in some aspects and upon a tort as for conversion in others. The petition is sui generis, being possibly;what is meant by learned counsel for plaintiff when they say of it in their brief that it is “ typical in form. ’ ’

We need not consider whether a recovery could have been had upon tort, as for the alleged conversion, or destruction, of the property upon which ordinarily the lien of the tax bills would have been fixed. The assignment is not of the tort, nor of the contract, nor of the right to recover u,pon a quantum meruit, but of the-tax bill pure and simple, for it says: “For value received - assign this special tax bill and the lien■ thereof to Municipal Securities Corporation,” etc. The: lien assigned was upon the lots and not against defendant; but the law is fairly well settled that the title of the city to these lots for use as a street attached by relation back under the facts here to the date of the judgment confirming the verdict of the jury, to-wit, September 14, 1901, a date long prior to the issuing of the tax bills, which were issued March 15, 1902. [In re Paseo, 78 Mo. App. 518.] The best that can be said for plaintiff’s insistence touching this lien is that the lien of the tax bills attached conditionally to these lots; the condition of attachment being that the defendant would dismiss its condemnation case short of final judgment and payment of the money into court, as under the general law, absent a charter provision forbidding, it had the right to do. [State ex rel. v. Fort, 180 Mo. 97; Railroad v. Second Street Imp. Co., 256 Mo. l. c. 407.] The city did not so dismiss the-proceeding and the right of the city, temporarily suspended, as we may express it, by the appeal, attached upon the affirmance here of the judgment of condemnation as of the date of such judgment (In re Paseo, supra), and had the effect to convert these lots of private persons into integral parts of the highway, or street system of Kansas City, and to take them out of the category of property of private person upon which liens of tax bills would attach; but since these lots became parts of public highways the judgment condemning them did not have the effect of converting them into that class of city property, the sewering of which created a liability against the city for which certificates evidencing such liability against the city were issuable by charter. [Sec. 14, art. 9, Charter of Kansas City 1898.]

If Walsh himself had sued for the tort of conversion alleged in effect by the briefs and contentions of counsel for plaintiff, a different and much more serious question would confront us; but it seems idle to insist that upon the petition here and upon the assignment above quoted, that plaintiff may recover upon the theory of tort. We have seen already how futile and idle is the view that plaintiff may recover upon contract. Moreover, no such tort is assigned. Nothing is assigned but the tax bill and the lien thereof. The logic of the situation manifestly suggests the rulé that all of the taxpayers of a city ought not to be taxed for the default of the city to properly levy a special improvement tax against the property of an infinitesimal part (e. g. a sewer district) of such city. [1 Dillon, Munic. Corp. sec. 482; 1 Elliott; Roads and Streets, sec. 657.] There are on this point, however, a respectable number of authorities which adhere to the contrary view. [Fort Dodge Electric L. & P. Co. v. Fort Dodge, 115 Iowa, 568; Iowa Pipe & Tile Co. v. Callanan, 125 Iowa, 358; Barber A. P. Co. v. Chicago, 139 Ill. App. 121; Barber A. P. Co. v. Denver, 72 Fed. 336; City of Pontiac v. Talbot Paving Co., 94 Fed. 65; Donnelly v. Brooklyn, 121 N. Y. 9;. Galveston v. Heard, 54 Tex. 420.] Cases from other jurisdictions which are not affected or hedged about by so many and such stringent, forbidding constitutional provisions, statutes and charter limitations, are of small, if any value in determining the question vexing us here. But be this as may be, the point of peculiarity in the instant case that plaintiff cannot in any event recover upon any theory of contract, but that it must recover, if at all, upon the theory of liquidated compensation for a tort, which tort was not assigned to it and on which it does not sue, destroys in our view any helpful analogy between the above cases from other jurisdictions and this one at bar.

Neither are we impressed with the view that since it was under certain circumstances (which, however, do not exist in the instant case) the duty of the defendant’s Board of Public Works to issue certificates showing the liability of the city, the plaintiff, as the assignee of the contractor, in the absence of the performance of said Board of Public Works of the alleged duty to issue such certificates, may sue the city upon a bare tax bill issued against the property of private citizens. If the lots upon which the liens are averred to exist had been purchased or taken and condemned by the city for a park or for a city hall, or for some such use as produced in the city a title in fee, then it would have been the duty of the Board of Public Works to issue certificates for the city’s proportionate part of the cost of the improvements. [Sec. 14, Art. 9, Charter of Kansas City 1898.] But as a parkway is a street, or highway, of a certain kind and not a park within the purview of the above section of the charter (Kleopfert v. City of Minneapolis, 90 Minn. 158; Century Dictionary), the said Board of Public Works neither issued, nor had authority to issue, any certificate on behalf of the city thereon. It is clear, therefore, that no liability can arise upon a tax bill, regarded as merely standing in the place of such a certificate, ■when, the issuance of such certificate itself would have . been unwarranted.

The Missouri cases cited are not in point. The case of Oster v. City of Jefferson, 57 Mo. App. 485, was a suit upon contract and for the contract price of doing certain macadamizing, curbing and guttering, and not upon an assigned tax bill; besides this, the case rode off upon the peculiar terms of the statute (now changed by amendment) under which the work was done. . ■

The case of Fisher v. City of St. Louis, 44 Mo. 482, was a suit upon contract, and not an action either upon a tax bill or by the assignee of a tax bill. Be•sides, the cause of action accrued and the action was brought prior to the adoption of our present Constitution.

Neither the case of In re Paseo, 78 Mo. App. 518, cited and strongly relied on by plaintiff, nor that of Ross v. Gates, 183 Mo. 338, cited and largely relied on by defendant, is in our view decisive of the questions in this case. In fact in the Ross-Gates case it is affirmatively found by this court that the jury which sat in the condemnation suit took into account and added to their award, the increase in value of the condemned property by reason of the identical improvement represented by the tax bills there sued on. Manifestly then no two views could exist as to the right of the holder of the tax bill to recover such excess sum so-held out of the award by the city. A further comparison of the chronology of the happenings in the case at bar with those in the two cases supra, so strongly relied on, respectively, by counsel on opposing sides here, discloses such a difference as to make them of little value, unless it be upon the point whether plaintiff was entitled to a lien upon the jury awards to pay his tax bills. If we were to follow the case of In re Paseo, supra, we must needs hold that no lien attached in favor of Walsh- or his assignee upon the award made upon condemnation of the several lots against which the tax hills were issued. But the latter point is not in the instant case; besides, the differences in the nature of the action at bar and that in the said case of In re Paseo, would make it wholly unnecessary for us to pass, and we do not pass, upon the latter question. But let us look to these several facts: In the instant ease the ordinance of condemnation was passed October 3, 1899; the contract for the construction of the sewer was made with Walsh on February 28, 1901. The jury in the condemnation suit rendered its verdict June 8, 1901; judgment was entered thereon September 14, 1901; two persons — Mastin and another, charged with a part of the betterment expenses, but whose property was not condemned — appealed; the tax bills were issued to Walsh March 15, 1802, and this court affirmed the condemnation suit on Mastin’s appeal on June 4, 1902. [Kansas City v. Mastin, 169 Mo. 80.]

In the Paseo case the ordinance condemning the Scarritt land and other lands was passed on November 15, 1805; the paving and curbing ordinances were passed October 16, 1895, and November 23, 1895, respectively (the date of the contract for the improvements does not appear); the verdict of the jury of condemnation was rendered September 26, 1896, and judgment was entered thereon on November 14, 1896, and subsequently, on to-wit, December 16, 1896, and April 1, 1897, respectively, the tax bills were issued to the contractor.

In the case of Boss v. Gates, supra, the condemnation ordinance passed November 13,1895; the contract for the paving was made December 24, 1895; the tax hills were issued December 15, 1896; the verdict of the jury condemning the land was rendered January 23, 1899, and judgment followed January 13, 1900, and the jury took into consideration the amount of the several tax bills, and added the same to their award.

We feel no manner of doubt that defendant may not be held under the law in this sort of action for this sort of claim. [Cotter v. Kansas City, 251 Mo. 224; Likes v. Rolla, 184 Mo. App. 296; Thornton v. Clinton, 148 Mo. 648.]

Pertinent to the inherent, or at least apparent, unfairness and hardship of the uniform enforcement of these hard-and-fast rules, the learned Springfield Court of Appeals, in the ease of Likes v. Rolla, supra, at page 307, in a well-considered opinion by Sturgis, J., said:

“The apparent hardship and injustice resulting to one who has acted in good faith arising from enforcing the strict rules laid down by our statutes in making contracts with public corporations has often been weighed against the abuse and squandering of public money growing out of a disregard of such restrictions. We refer any interested reader to Crutchfield v. Warrensburg, 30 Mo. App. 456, and Cotter v. Kansas City, 251 Mo. 224. It is sufficient to say that this State has tried both systems, and until the Legislature sees fit to adopt a less strict rule, or permits the courts to do so, we must enforce the law as we find it. ’ ’

In the case of Cotter v. Kansas City, supra, at page 230', our learned Commissioner Roy said:

“We appreciate the hardships of this case. At the same time we call attention to the fact that both parties to the contract acted in apparent good faith. Both contemplated the possibility that the special tax bills might be invalid; and it was mutually agreed that the city should in no event be liable.”

It follows from what is said that this case must be reversed, which is accordingly ordered.

PER CURIAM.

The foregoing opinion of Faris, P. J., written in Division Two, is concurred in and adopted as the opinion of Court in Bane.

Brown, Bond, Walker and Blair, JJ., concur; Woodson, G. J., dissents ; Graves, J., dubitante.


source: Caselaw Access Project

author: BOND, J.

license: Public Domain

text:
    THE STATE ex inf. JOHN T. BARKER, Attorney-General, v. ALLEN C. SOUTHERN and OLIVER C. SHELEY. THE STATE ex rel. ALLEN C. SOUTHERN v. MILES BULGER et al., Judges of the County Court of Jackson County.
    In Banc,
    June 1, 1915.
    1. COUNTY HIGHWAY ENGINEER: Qualifications. That part of the statute which forbids the county court to appoint to the office of county highway engineer a person lacking certain prescribed qualifications, has no application to a highway engineer elected by the people or appointed by the Governor to fill a vacancy.
    2. SPECIAL AND GENERAL LAWS: Population and Weálth: Restrictions. A statute which relates to a class of persons or a class of things is general, and one which applies to particular persons or things is special. The classification made by the General Assembly must rest upon a reasonable basis, and not upon a mere arbitrary division made only for the purposes of legislation; for instance, a classification of counties based upon population may be reasonable and valid; nor will a general classification based upon population be rendered special, by a further restriction requiring the county to possess a named amount of assessed wealth or requiring it to embrace or adjoin a city containing a specified population; but when the restrictions so narrow the classification by population or wealth, as to make it unmistakably apparent that only one county.was intended to be included therein, then such classification is not general, but is special and void.
    3. -: -: —:-: County Highway Engineer. The first proviso to section 10556, Revised Statutes 1909, which says that “in all counties in this State which contain or which may hereafter contain more than fifty thousand inhabitants, and whose taxable wealth exceeds or may hereafter exceed the sum of forty-five million dollars, or which adjoin or contain therein, or may hereafter adjoin or contain therein, a city of more than one hundred thousand inhabitants by the last decennial census, the county surveyor shall be ex officio county highway engineer,” does not violate the constitutional provision inhibiting the enactment of special or local laws.

      4. -: -: -: -: Intended by Circumlocution to Apply to Only One County. On the other hand, the further proviso in said section which says that “in all counties in this State which contain or may hereafter contain two hundred thousand and less than four hundred thousand inhabitants, and which county or counties contain one hundred and fifty miles or more of macadamized roads, outside of municipal corporations, and which county or counties pay to the county surveyor a salary of three thousand dollars or more annually, the county surveyor of such county or counties shall be ex officio county highway engineer,” is a special and local law, which by its specifications and circumlocutions points out Jackson county as the only county to which it could apply; and being a separate and independent attempt to create an additional class of counties, the prior valid proviso is not affected by its elimination.
    5. COUNTY HIGHWAY ENGINEER: Vacancy: How Filled. Since the second proviso of section 10556, Revised Statutes 1909, is unconstitutional and invalid, and the first proviso thereof, providing that the county surveyor shall be ex officio county highway engineer, is general and valid, the county court of Jackson county has no power to fill a vacancy in the office of county highway engineer, caused by the death of the county surveyor, but such vacancy is to be filled by the appointment of the Governor of a person to fill the office of county surveyor, and such appointee by virtue of such appointment becomes ex officio county highway engineer.

      Quo warranto and Certiorari.

    Writ ok quo warranto quashed as to respondent Southern and sustained as to respondent She-LEY.
    Judgment ok county court quashed on certiorari.

      Sparrow & Page for Allen C. Southern, relator and respondent.
    See. 10556, R. S. 1909, is a general, and not a special law, and is therefore, not violative of Pars. 2, 32 or 33, Sec. 53, Art. 4. Constitution of Missouri. Ex parte Loving, 178 Mo. 203; State ex rel. v. Pond, 93 Mo. 620; State v. Walsh, 136 Mo. 405; Elting v. Hickman, 172 Mo. 257; State ex rel. v. Yancey, 123 Mo. 391;. Lynch v. Murphy, 119 Mo. 163; State ex rel. v. County Court, 128 Mo. 427; State ex inf. v.. Insurance Co., 150 Mo. 113; State'v. ITays, 88 Mo. 344; State ex inf. v. Fleming, 147 Mo. 1; State v. Keating, 202 Mo. 197; State ex rel. v. Speed, 183 Mo. 186. The Attorney-General, in his reply to the return of respondent Sheley, having relied upon the constitutionality of section 10556, is estopped in his action against respondent Southern, from asserting that the section is unconstitutional. 8 Cyc. 793; State ex rel. v. Board of Liquidators, 28 La. Ann. 121; New Orleans v. Bank, 167 IT. S. 371; Driving Park v. Kansas City, 174 Mo. 425.

      Hadley, Cooper.<3 Neel, W. M. Williams and John S. Wright for respondent Sheley; Edward L. Scarritt and Cyrus Crane of counsel.
    (1) The matter in controversy is properly before this court under the quo warranto and not the certiorari proceeding, as the action of the county court in appointing Sheley was purely administrative. State ex rel. v. Harrison, 141 Mo. 12. (2) Sheley is the lawfully constituted and appointed highway engineer of Jackson county, because: 1st. The last proviso in Sec. 10556', R. S. 1909, applicable to Jackson county alone, and the two preceding provisions, both applicable to Jackson county and- St. Louis county and one to Buchanan county and Clay county, to the effect that the County Surveyor shall be ex officio Highway Engineer, are void as violative of pars. 2, 15, 32 and 33, Sec. 53, Art. 4, Constitution of Missouri, (a) The provisions are local and special legislation, not ap-plicable to other counties generally and not justified by any peculiar necessity therefor. State ex rel. v. Roach, 258 Mo. 561; State ex rel. v. County Court, 89 Mo. 337; State ex reí. v. Hermann, 75 Mo. 340; State ex rel. v. Williams, 232 Mo. 53; State ex rel. v. Miller, 100 Mo. 477; State ex rel. v. Railroad, 246 Mo. 512; Bridges v. Mining Co., 252 Mo. 53. (b) Such local legislation is unconstitutional where, as here, a general law existed and could have been made applicable. State ex rel. v. Roach, 258 Mo. 566; Wooley v. Mears, 226 Mo. 41; State ex rel. v. Williams, 232 Mo. 74; Hays v. Min- • ing & Milling Co., 227 Mo. 300; Murane v. St. Louis, 123 Mo. 479; 1 Lewis’s Sutherland on Statutory Construction (2 Ed.), sec. 191. (c) The last proviso-aforesaid is special legislation because it prescribes, local conditions existing at and limited to the time of the passage of the act. State ex rel. v. Herrmann, 75 Mo. 340. (d) Except for such void provisos, the county court had full power and discretion to appoint Sheley. Section 10551, R. S. 1909. 2nd. Even if the provisos were unconstitutional, they must be construed, when taken together with the remaining sections of the act and the manifest intent of the Legislature, to require the appointment by the county court of a competent, qualified engineer when the county surveyor was unqualified, and Southern’s appointment was void insofar as the ex officio function of Highway Engineer was concerned because he was not qualified. Sec. 10551, R. S. 1909; State ex rel. v. King, 44 Mo. 283; Gist v. Construction Co., 224 Mo. 379, 388;. Perry v. Strawbridge, 209 Mo. 636; Rutter v. Car-others, 223 Mo. 642; State ex rel. v. McQuillin, 246 Mo. 534; State ex rel. v. Seehorn, 246 Mo. 576; State ex inf. v. Amick, 247 Mo. 282; Gasconade County v. Goodson, 241 Mo. 581; State ex rel. v. Ryan, 232 Mo. 92; Glaser v. Rothschild, 221 Mo. 209; State v. Eckhardt, 232 Mo. 53. 3rd. Independent of statute, Southern’s appointment was void as a matter of law, insofar as the ex officio function of Highway Engineer was concerned because he was not qualified. State ex rel. v. Niewman, 91 Mo. 445; State ex rel. v. Meek, 129 Mo. 437; Mechem’s Public Offices and Officers, sec. 83, p. 31; Throop on Public Officers, sec. 73; People ex rel. v. Board, 129 N. Y. 360’.

      A. L. Cooper for respondent Judges of County Court.
   I.

BOND, J.

Two original proceedings were instituted in this court. One is a certiorari sued out by Allen C. Southern, as shown in the above caption, against the three justices of the county court of Jackson county, Missouri, to quash its judgment entered on the 8th of March, 1915, in the following form

“The court finds.that a vacancy exists in the of- ' fice of County Highway Engineer of this county.

“Wherefore, it is now ordered by the court that Oliver C. Sheley, Jr., a resident of Jackson county, Missouri, who possesses the qualifications required by law, be and he is hereby appointed County Highway Engineer of Jackson county, Missouri, for a term ending on the first Monday in February, 1916. His compensation is fixed at two thousand dollars per annum, payable in equal monthly installments. He shall furnish a bond, conditioned as required by law, in the sum of fifty thousand dollars, to be approved by this court. The bonds of his assistants are fixed at one thousand dollars, each to likewise be approved by this court. ’ ’

Two of said justices concurring in the above and one dissenting thereto.

After notice of the application for said writ of certiorari, the Attorney-General, on the 5th day of April, 1915, brought the second proceeding shown in the above caption as an information in the nature of a quo warranto, charging that the defendants thereto, to-wit, Allen C. Southern and Oliver C. Sheley, Jr., were unlawfully exercising the office of County Highway Engineer within and for the county of Jackson and State of Missouri. An order to show cause was made by this court on said date, to which the defendants respectively made returns. Defendant Allen C. Southern stated in his return in substance that he was appointed by the Governor of this State on February 3, 1915, to be County Surveyor of Jackson county, Missouri, to succeed Rowland T. Proctor, who had been elected to that 'office but had died prior to the expiration of his term; that respondent Allen C. Southern was duly commissioned and having duly qualified himself as required by the laws of Missouri, entered upon the duties of said office; that by virtue of his said appointment and qualification and the provisions of section 10556, Bevised Statutes 1909, he became ex officio County Highway Engineer of said county,' and ■with legal right and authority has continued to exercise and perform the duties of said office.

Respondent Oliver C. Sheley, Jr., in his separate return averred that he was lawfully holding the office of County7 Highway Engineer in that the section of the statute relied upon to support the title of respondent Southern under the appointment by the Governor was unconstitutional, and hence the county court of Jackson county ‘‘on March 8,1915” (by virtue of the terms aforesaid), there then being a vacancy in the office' of County Highway Engineer, appointed him, the said Sheley, pursuant to section 10551, Revised Statutes 3909, for a term expiring at the first meeting of said court in February, 1916, and that he accepted said appointment and qualified and entered upon the duties of said office. He further avered that the said Southern was ineligible to the office in question, and concluded his return by praying judgment sustaining his title to said office. It was stipulated by the jjarties that the two proceedings should be heard together, and they further stipulated upon an agreed state of facts ■whereon they should be disposed of in this court in the following form:

“For the purpose of the hearing of this cause in the above court, it is hereby agreed and stipulated by and between John T. Barker, Attorney-General, informant, and Sparrow & Page, attorneys for Allen C. Southern, respondent, in the above entitled cause, as follows:

“1. It is agreed that Rowland T. Proctor was at the general election held November 5, 1912, elected to the office of County Surveyor of Jackson county, Missouri, for a term of four years; that said Proctor qualified as such County Surveyor as required by law; that on or about January 6, 1915, said Proctor, while holding said office of County Surveyor of Jackson . county, departed this life.

“2. It is further agreed that on February 3, 1915, respondent Allen C. Southern was by Elliott W. Major, Governor of the State of Missouri, appointed and commissioned County Surveyor of said Jackson county, to succeed said Rowland T. Proctor, deceased, and to serve the unexpired term of said Proctor; that thereafter, and on or about February 17, 1915, said Southern qualified in the manner, within the time, and as required by law, as such County Surveyor of Jackson county.

“3. It is further agreed that at the date of the election of said Rowland T. Proctor, County Surveyor of Jackson county, and of respondent Southern’s appointment and commission as his'successor, said Jackson county had, and now has, a population of more than fifty thousand inhabitants; that during all said time the taxable wealth of said county, exceeded, and now exceeds, the sum of forty-five million dollars; that during all said time, said Jackson county contained, and now contains therein, a city of more than one hundred thousand inhabitants by the last decennial census, to-wit, the city of Kansas City.

“4. It is further agreed that at the time of the election of said Rowland T. Proctor to the office of County Surveyor of said Jackson county, and of respondent Southern’s appointment and commission as his successor, said county contained, and now contains, two hundred thousand and less than four hundred thousand inhabitants; that at said time, said county had, and now has, 150 miles or more of macadamized roads outside of municipaPcorporations, and paid, and now pays, its County Surveyor, an annual salary of three thousand dollars or more.”

It is upon the foregoing pleadings and stipulation that this cause is now before the court for final determination.

The two statutes, whose interpretation is necessary to a decision of this case, are, to-wit:

“Sec. 10551. There is hereby created in the several counties of the State of Missouri the office of county highway engineer, and the county courts of each county in this State are hereby authorized and empowered to appoint, and shall appoint, a highway engineer within and for their respective counties at the first meeting of such court in the month of February, 3910, and each year thereafter. Such county highway engineer so appointed shall serve for a period of one year and until his successor is appointed and qualified. Any vacancy occurring in the office of county highway engineer, from any cause, shall be filled by appointment by the county court.”

“Sec. 10556. The county court of the several counties in this State may, in their discretion, appoint the county surveyor of their respective counties to the office of county highway engineer, provided he be thoroughly qualified and competent, as required by this article; and, when so appointed, he shall receive the compensation fixed by the county court, as provided in section 10553, in lieu of all fees, except such fees -as are allowed by law for his services as county surveyor: Provided, that in counties in which the provisions of this article with reference to the appointment of a county highway engineer have not been suspended as hereinafter provided, the county surveyor may refuse to act or serve as such county highway engineer, unless otherwise provided by law. In the event that the county highway engineer cannot properly perform all the duties of his office, he shall, with the approval of the court, appoint one or more assistants, who shall receive such compensation as may be fixed by the court: provided, however, that in all counties in this State which contain or ivhich may hereafter contain more than fifty thousand inhabitants, and ivhose taxable wealth exceeds or may hereafter exceed the sum of forty-five million dollars,-or which adjoin or contain therein, or may hereafter adjoin or contain therein, a city of more than one hundred thousand inhabitants by the last decennial census, the county surveyor shall be ex officio county highway engineer, and his salary as surveyor and ex officio county highway engineer shall be not less than two thousand dollars and not more-than three thousand dollars, as may be fixed by the county court, and all fees collected in such counties by the surveyor, for .his services as surveyor, shall be paid into the county treasury, to be placed to the credit of the county revenue fund; provided, also that in the counties last above mentioned the county surveyor, as surveyor and ex officio county highway engineer, may appoint, subject to the approval of the county court, such assistants as may be necessary, and no assistant shall receive more than twelve hundred dollars per annum; provided further, that in all counties in the State which contain or may hereafter contain tioo himdred thousand and less than four hundred thousand inhabitants, and which county or counties contain one hundred and fifty miles or more of macadamized roads. outside of municipal corporations, and which county er counties pay to the county surveyor a salary of three thousand dollars or more annually, the county surveyor of such county or counties shall be ex .oficio coumty higlnvay engineer. [Laws 1909, p. 755.] ” — - (Italics ours).

II.

The question upon which the relative rights of the rival claimants to the office of Highway Engineer for Jackson county depends, is whether the portion of the statute applicable in terms to the agreed statement of facts is violative of the Constitution, article 4, section 53, or any of its paragraphs.

Aside from the particular, special and local laws prohibited by the Constitution, the Legislature is untrammeled in the enactment of such laws and may do so in all other cases. [State ex rel. v. Speed, 183 Mo. 186; Haeussler v. City of St._ Louis, 205 Mo. 656; State v. Christopher, 212 Mo. 244.]

To bring a statute under this ban of the Constitution, the specific subdivision violated must be pointed out, and the fact must be established beyond any reasonable doubt, for it is a canon of construction that no act of the lawmaking power of this State will be annulled by the judiciary when it can be upheld on any rational theory of the limitations imposed by the Constitution on the otherwise plenary power of the Legislature to enact any law, not opposed to the Federal Constitution, ón any subject which its views of State polity may suggest.

Before discussing the question of the validity of the portion of the statute in hand, it is well to say that there is no merit in the suggestion' of respondent Sheley that respondent Southern is ineligible to the office of County Highway Engineer for lack of certain statutory qualifications prescribed in those cases where the county court has power to appoint a Highway Engineer. For those restrictions are neither within the words nor the intendment of the portion of the statute, which deprives the county court of the right to exercise the appointing power. Hence, if this portion of the statute is constitutional, then the appointment is automatically vested in the person holding the office of County Surveyor, and upon the death of such person (as in the case at bar), thereby creating a vacancy his successor, whose appointment is confessedly within the power of the Governor of the State, succeeds also ex officio to the office of County Highway Engineer. And as no provision appears anywhere in the statute, which makes the ex officio right of a person elected by the people to the office of County Surveyor, to the office of County Highway Engineer, dependent upon any of the statutory qualifications which apply to those cases in which the county court is permitted to appoint the County Highway Engineer; so no such qualification can extend to the ex officio rights of the successor of a deceased county surveyor. It is clear, therefore, that the single question on this appeal is as to the constitutional validity of the clauses of the act providing in certain contingencies that an elected County Surveyor shall be ex officio a County Highway Engineer.

The statute proposes to accomplish this by two distinct and separate provisions, which will be useful to consider in the order in which they appear in the statute. The first is, to-wit:

“Provided, however, that in all counties in this State which contain or which may hereafter contain more than fifty thousand inhabitants, and whose taxable wealth exceeds or may hereafter exceed the sum of forty-five million dollars, or which adjoin or contain therein, or may hereafter adjoin or contain therein, a city of more than 100,000 inhabitants by the last decennial census, the county surveyor shall he ex officio county highway engineer.”

Then follow provisions as to his salary and as to his appointment of assistants.

The rule that a statute which relates to a class of persons or a class of things is general, while one which only applies to particular persons or things is special, has been generally announced in this and other jurisdictions. [State ex rel v. Taylor, 224 Mo. l. c. 477, 478, and cases cited; Elting v. Hickman, 172 Mo. 257, and cases cited; The State ex rel. Dickason v. County Court of Marion County, 128 Mo. 427; Lynch v. Murphy, 119 Mo. 163; State ex rel. Lionberger v. Tolle, 71 Mo. l. c. 650.]

It is, however, an essential adjunct of this rule that , the classification made by the Legislature shall rest on a reasonable basis and not upon a mere arbitrary division made only for purposes of legislation. [State ex rel. v. Roach, 258 Mo. l. c. 563; Hawkins v. Smith, 242 Mo. l. c. 696.] "When this is borne in mind, and a statute is enacted upon a basis justifying its classification and is made to apply to all persons who may hereafter fall within its purview, it is not special legislation.

The clause of the statute now under review classifies the counties of the State as they should then or thereafter contain more than fifty thousand inhabitants, and should have then or thereafter taxable wealth exceeding forty-five million dollars, or as they should adjoin or contain then or thereafter a city of more than one hundred thousand inhabitants.

It has been repeatedly decided in this State that classification according to population was sufficient to render an act containing such a classification a general law. [State ex inf. Crow v. Continental Tobacco Co., 177 Mo. 1; State ex rel v. County Court, 128 Mo. l. c. 442; State ex rel. v. Bell, 119 Mo. 70.] Nor has the rule as to such a standard been altered by the fact that. such an act has been found applicable only to one city. [State ex inf. Crow v. Fleming, 147 Mo. 1; State ex rel. v. Mason, 55 Mo. 486; State v. Keating, 202 Mo. 197; State ex rel. v. Speed, 183 Mo. 186; Ex parte Lucas, 160 Mo. 218.] The evident motive of the Legislature in the enactment of the clause under consideration was to classify the counties .of the State as they then or in the future might have a population exceeding fifty thousand and taxable property exceeding forty-five million dollars, for the reason that the counties which should fall within such a class would naturally have different and greater needs, corresponding to the differences between their condition and other counties of less population and less wealth. Neither did the Legislature lose sight of this object in’the disjunctive part of the sentence, which provided that counties adjoining or containing then or in the future a city of more than one hundred thousand inhabitants should belong to the same class. The purpose in each clause of the sentence was to create a distinction based upon differences in population and in wealth, for, if, as the Legislature rightfully assumed, counties of fifty thousand inhabitants would acquire coincidentally a taxable wealth of forty-five million dollars, it might be well assumed that such counties would not have less wealth when they should embrace or adjoin cities containing one hundred thousand inhabitants. We judicially know that such classification would cause the act in question to apply to a number of counties in this State, and we are unable to see any good reason why the lawmaking power should not have created the classification as set out in the above quoted portion of the statute with a view of having it applied as it does in terms to all counties that may hereafter become subject to its provisions, in view of the evident fact that it will necessarily apply to an increasing number of counties as the State shall progress in wealth and population. Our conclusion is, that this provision of the statute is not obnoxious to the provisions of the Constitution forbidding the enactment of certain special laws.

III.

There remains to consider a final proviso contained in the section of the statute and its relation to the one construed in the preceding paragraph. That proviso is, to-wit:

“Provided further, that in all counties in this State which contain or may hereafter contain two hundred thousand and less than four hundred thousand inhabitants, and which county or counties con-tain one hundred and fifty miles or more of macadam- • ized roads, outside of municipal corporations, and which county or counties pay to the county surveyor a salary of three thousand dollars or more annually, the county surveyor of such county or counties shall be ex officio county highway engineer.” ' (Italics ours).'

It will be perceived by the language of this concluding clause the Legislature attempted to create a classification of counties falling within the limits of population of two hundred thousand minimum and four hundred thousand maximum, eschewing all others,' and further specifying that such counties should novo contain a certain number of miles of macadamized roads, which should be outside of other cities, and that their county surveyor should receive a salary of three thousand dollars or more. This proposed classification is not based upon a natural division of counties according to general standards of-population and wealth, but purports to rest upon a selected number of inhabitants not less than a given amount and not beyond a fixed limit. The Legislature must have known that this favored intermediary state had only been reached by Jackson county, Missouri. It also must have been aware that said county alone possessed outside of its towns 150 miles of macadamized roads and was then paying its County Surveyor a salary of three thousand dollars per year, [R.- S. 1909, see. 10737.] It is seen at a glance that this proviso dealt exclusively with existing conditions as to its application, except as to the matter of population, as to which it purported to include such counties as might hereafter enter the particular zone of legislation. The proviso at the time of its enactment could not have applied to any other than Jackson county. Its terms negative any other basis for its enactment than an arbitrary prescription of a specific stage of the growth of population of the county and a present particular kind and extent of road mileage, and a present payment of a certain salary of a county surveyor. These specifications as infallibly pointed out Jackson county (containing therein Kansas City) as if, instead of such circumlocution, the proviso had mentioned that county by name.

We recognize as a matter of judicial knowledge and public history that when enacted this proviso •could not have applied to any other county in this State. It cannot be said that it created a future class into which other counties might fall, for an inspection of its language shows that the determining conditions of its application are expressed in words of present import. [State ex rel. v. Herrmann, 75 Mo. l. c. 352.]

Our conclusion is, that the final proviso of the section set out in this paragraph affords convincing intrinsic evidence of its repugnancy to the provisions of the Constitution limiting the power of the General Assembly to enact local or special laws, and that it should be expunged in the eye of the law from the section of the statute of which it forms the conclusion.

It remains to inquire whether the invalidity of the proviso set out in this paragraph affects, by interrelation or inter-dependence, the prior valid proviso contained in said section? It does not. It is a distinct, separate and independent attempt to create an additional class of counties wherein the surveyor shall be also highway engineer, which does not in any way or method affect the creation of the class defined in paragraph two of 'this opinion. In such cases, the rule is clear that the unconstitutionality' of one class or portion of an act or section of a statute will not affect others not subject to its infirmity. [Simpson v. Iron Works, 249 Mo. l. c. 391, and cases cited; Haag v. Ward, 186 Mo. l. c. 341; St. Louis & San Francisco Ry. Co, v. Evans & Howard Brick Co., 85 Mo. 307.]

IY.

It results from the conclusions stated above that the respondent Southern, under the facts in this record and by virtue of his appointment as County Surveyor of Jackson county, is also ex officio County Highway Engineer, and hence the action of the majority of the county court of Jackson county adjudging a vacancy to exist in the office of County Highway Engineer and purporting to appoint respondent Shelev thereto, was' in excess of its lawful power and jurisdiction. It is therefore ordered that the writ of quo warranto be quashed as to. defendant Southern and be sustained against respondent Sheley, on the ground of unlawful •intrusion into the office of County Highway Engineer, and that he be ousted of any right or authority fo exercise any of the duties of said office, and that the judgment of the county court declaring a vacancy to exist in said office be quashed and for naught held upon the certiorari in this case. It is so ordered.

All concur except Paris, J., who dissents.