author: GRAVES, C. J.

text:
    BRUCE ROPER v. LOUIS GREENSPON, Administrator of Estate of ROSE GREENSPON, JACOB GREENSPON, ABRAHAM GREENSPON and LOUIS GREENSPON, Composing Firm of JOSEPH GREENSPON & SONS, Appellants.
    In Banc,
    December 1, 1917.
    1. NEGLIGENCE: Speed Ordinance: Invalidity: Pleading. Where defendant pleads and relies upon a certain ordinance as a defense to plaintiff’s charge of negligence, the invalidity of said ordinance should he pleaded, and if not pleaded it cannot be excluded as evidence on the ground that it is invalid.
    2. -: -: Invalidity Raised at First Opportunity: Waiver. The invalidity of an ordinance, relied upon by defendant as a defense to plaintiff’s action for negligence, like the unconstitutionality of a statute, should be raised at the first open door in the course of orderly procedure in the case, and if not so raised its invalidity is waived; and the ordinance being pleaded as a defense in the answer, the first opportunity for asserting its* invalidity in this case was by an averment in the reply.
    3. - — :-: Conflict With State Statute: Waiver. If the answer pleads that plaintiff was guilty of contrihutory negligence in running his taxicab in excess of a certain speed ordinance pleaded, and plaintiff replies that the ordinance was in force and that he was not driving in excess of its speed rates, the court is not required to decide that said ordinance conflicts with a state statute on the same subject, neither can said ordinance be excluded from evidence on any such ground.

      4. -: -: Exclusion Harmless Error. If the ordinance fixed a maximum speed of ten miles per hour and there was evidence tlat plaintiff’s taxicab at the time of his injury was being driven by him at the rate of twenty-five or thirty-five miles, and the instruction made ordinary care the measure of plaintiff’s duty, it was not harmless but prejudicial error -to exclude said ordinance as evidence; for a rate in excess of the ordinance rate was negligencé per se, and a rate in excess of that speed was contributory negligence and defeated plaintiff’s right to recover, and without such ordinance the jury might find that a rate of even thirty-five miles per hour was ordinary care.
    5. AUTOMOBILE SPEED: Power of' City to’ Regulate. The Act of 1911 did not expressly or by intendment withdraw from cities the power to regulate the speed of automobiles upon their streets, nor does such act deprive cities of their power to enact valid ordinances providing reasonable speed and other regulations in the use of streets by automobiles.
    6. ORDINANCE NEGLIGENCE: Unlighted Wagon. Where defendant’s long-reach wagon, loaded with long steel beams, extending some eight feet beyond the hind axle, stalled at the intersection of two streets after nine o’clock at night, they were guilty of ordinance negligence for failure to have lights on the wagon, in obedience to an ordinance requiring all such vehicles, while in use upon the streets between the hours of sunset and sunrise, to “display one or more lights or lanterns on the outside of such vehicles, visible from front and rear,” and are liable to the driver of an automobile who saw the wagon, but did not see the steel beams, with which he came in contact, and which were of the same color as the asphalt pavement — unless his right to recover is barred by his contributory negligence in driving at an excessive speed.
    7. COMMON LAW NEGLIGENCE: Blocking Street. Evidence that a long-reach wagon, loaded with long steel beams, extending some eight-feet beyond the hind axle, stalled after nine o’clock at night at the poorly-lighted intersection of two streets; that it sunk down into the asphalt pavement and remained there for thirty minutes or more; that the street which crossed the one in which it was traveling was a continuously used highway; that the wagon and beams blocked the whole of the south side of that highway, which was the side used by automobiles going east, as plaintiff’s was; that neither the owners of the wagon nor their servants did anything in the way of performing their duty to the traveling public by way of warning or signals, and that plaintiff’s taxicab collided with the steel beams and he was injured, is such evidence of common law negligence as entitled’ plaintiff to go to the jury on that issue.

      8. CONTRIBUTORY NEGLIGENCE: Question for the Jury. Where there is conflicting evidence on every vital question touching the negligence of plaintiff, the question of his contributory negligence is an issue for determination by the jury; and notwithstanding the evidence on that question preponderates in favor of defendants, the appellate court cannot declare as a matter of law that plaintiff was guilty of such contributory negligence as bars a recovery, even though all the testimony except his own, which is positively to the contrary, shows recklessness on his part at the time of the accident.
    Appeal from St. Louis City Circuit Court. — Hon. William N. Kinsey, Judge.
    Reversed and remanded.

      Jones, Hooker, Sullivan & Angert and Vincent L. Boisaubin for appellant.
    (1) The facts in this ease show that plaintiff was guilty of contributory negligence as a matter of law, and therefore the court erred in refusing to give defendants’ instruction in the nature of a demurrer to the evidence at the close of plaintiff’s case and again at the close of the entire case. Solomon v. Duncan, 185 S. W. (Mo. App.) 1141; Lorenz v. Tisdale, 127 N. Y. App. Div. 433; Rebillard v. Railroad, 216 Fed. 503; Const. Co. v. White, 130 Tenn. 520; Ry. Co. v. Vangilder, 132 Tenn. 487; Lauson v. Fond du Lac, 141 Wis. 57; McDonald v. Yoder, 80 Kan. 25; Bucholtz v. Radcliffe, 129 Iowa, 28; Wallower v.-Webb City, 171 Mo. App. 214. (2) The court 'erred in refusing to admit in evidence the speed ordinance pleaded in defendants’ answer and offered in evidence in support of the defense. Said ordinance was not in conflict with the state statute and is valid. The court erred in refusing defendants’ instruction submitting the city speed ordinance to the jury and instructing the jury that if they found a violation of said ordinance and that such violation contributed to the injuries plaintiff could not recover. The state statute did not attempt to regulate the speed of automobiles ; it did not attempt to fix any speed limit upon automobiles; it was silent' on that upon which the city ordinance spoke; it did not expressly repeal the city ordinance regulating and fixing speed. The statute and the ordinance are, therefore, not in conflict, and the ordinance is valid. Laws 1911, p. 322; St. Louis v. Williams, 235 Mo. 518; St. Louis v. Eflausmeier, 213-Mo. 126; St. Louis v. Ameln, -235 Mo. 682; St. Louis v. De Lassus, 205 Mo. 578; State v. Clarke, 54 Mo. 17; St. Louis v. Cafferata, 24 Mo. 94; People v. Bell, 148 N. Y. Supp. 753; Chicago v. Ice Cream Co., 252 111. 311; 2 Dillon on Mun. Corp., sec. 632; St. Louis v. Bernard, 249 Mo. 51; Brazier v. Philadelphia, 215 Pa. St. 297; Christensen v. Tate, 128 N. W. (Neb.) 622; Bellingham v. Cissna, 44 Wash. 397.

      Sidney Thorne Able for respondent.
    (1) Plaintiff was not guilty of negligence. Baker v. Pall River, 187 Mass. 53;. Corcoran v. New York, 188 N. Y. 131; Carradine v. Ford, 187 S. W. 291; Strauchon v. Railway, 232 Mo. 587; Bluedorn v. Railway, 108 Mo. 488. On the issue of contributory negligence, plaintiff is entitled to the full force of. all uncontroverted facts, and to all his controverted evidence, and to every reasonable and favorable construction and inference dedueible from all the evidence. Peterson v. Railroad, 265 Mo. 462; Tabler v. Railway, 93 Mo. 79; Buesching v. Gaslight Co., 73 Mo'. 231. Unless the only conclusion that can reasonably be drawn from the evidence is that plaintiff was guilty of contributory negligence — only when there can reasonably be no two opinions on the subject, should a demurrer to the evidence be sustained. Campbell v. Railway, 175 Mo. 161; Buesching v. Gaslight Co., 73 Mo. 233. Where there is a flagrant violation of a law or municipal regulation, resulting in an injury, contributory negligence should be clearly made out before the court relieves the defendant upon that ground. ’ Bluedorn v. Railway, 108 Mo. 437; Coffee v. Carthage, 186 Mo. 573; Towler v. Sedalia, 77 Mo. 443. ■The law will not. concern itself over closely in scrutiHieing and gauging the judgment of men facing confusing perils. Wilson v. Railroad, 169 Mo. App. 405; Corcoran v. New York, 188 N. Y. 140; Underwood v. Railway, 190 Mo. App. 418. (2) The trial court did not err in refusing to admit in evidence the so-called speed ordinance of St. Louis, as the Motor Vehicle Act is “exclusively controlling” on the regulation of the speed of motor vehicles on the public highways throughout the State. The court did not err in refusing defendant’s instruction based upon the ordinance. The State, by the express words used in the act, exercised its prerogative and made the Motor Vehicle Act the exclusive law on this subject in Missouri. Ewing v. Hoblitzelle, 85 Mo. 64; Ferrenbach v. Turner, 86 Mo. 419; Building Assn. v. Telephone Co., 33 Mo. 267; Marie v. Transit Co., 116 Mo! App. 22; St. Louis v. Klausmeier, 212 Mo. 127; St. Louis v. Meyer, 185 Mo. 583; 17 Cyc. 871-872; Byrne v. Drain,'60 Pac. 433; 36 Cyc. 1114 and 1115; State v. Kessels, 120. Mo. App. 233; Peterson v. Railroad, 265 Mo. 462; State v. Yardley, 95 Tenn. 546; Smith on Municipal Corporations, sec. 544; People v. Hayes, 66 Misc. (N.Y.) 608; Buffalo v. Lewis, 192 N'.Y. 193; Frisbie v. Columbus, 80 Ohio St. 686; Helena v. Dunlap, 102 Ark. 131; Christensen v. Tate, 128 N.W. (Neb.) 622; Ex parte Smith, 146 Pac. 82; St. Louis v. Packing Co., 141 Mo. 375; State v. Jaeger, 63 Mo. 405; Brazier v. Philadelphia, 215 Pa. St. 297; Bellingham v. Cissna, 44 Wash. 397.
   GRAVES, C. J.

This case reaches us upon a certification by the St. Louis Court of Appeals. Lengthy opinions upon both sides of the conceived vital questions appear.

The action is one for personal injuries, alleged to have been occasioned by the negligence of defendants. The petition counts upon both ordinance and common law negligence, in this language: “Plaintiff for his cause of action states that on or about the fourteenth of July, 1912, at about nine-forty-five p. m., between sunset and sunrise, plaintiff being then and there a chauffeur in the employ of and driving a taxicab for the St. Louis Taxicab Company, drove in an easterly direction along the right .or south side of Lawton Avenue to Channing Avenue, both being public highways in a residence section of the city of St. Louis, Missouri; that the defendants were at the aforesaid time the owners of a wagon, loaded with heavy steel ‘I’ beams which extended eight or ten feet behind the rear of the wagon, and two horses, in the possession of a driver, the servant and employee of the defendants, who was then and there in charge of same for defendants, which wagon and team were at the time aforesaid facing north on Channing Avenue at the intersection of Lawton Avenue, standing across and blocking Lawton Avenue; that there was no light or lantern displayed on the outside of said wagon; that at said time there was in force a certain ordinance of the city of St. Louis, Missouri, providing that:

“ ‘On every hackney carriage, cab or cabriolet, when driven upon the streets between the hours of sunset and sunrise, shall have fixed on some conspicuous part óf the outer side thereof, two lighted lamps, with plain glass fronts and sides, on which shall be painted in legible figures, at least one inch long, the registry number thereof. Every automobile, when upon any public street, shall carry between the hours of sunset and sunrise at least two lighted lamps showing white lights visible at least' two hundred feet in the direction toward which the automobile is proceeding, and shall also exhibit at least one red light visible in the reverse direction. All other vehicles while in use upon the streets between the hours of sunset and sunrise, shall display one or more lights or lanterns on the outside of such vehicles, visible from front and .rear,’
being Section No. 1349; that on account of the negligence of defendants, their servant and employee in failing to observe the requirements of said ordinance and in failing to display a light or lantern on outside of said wagon at aforesaid time, being between the hours of sunset and sunrise, plaintiff driving taxicab east on right or south' side of Lawton Avenue, as aforesaid, exercising due care for his own safety, was unable to see said unlighted wagon loaded with' heavy steel ‘I’ beams, drove into and against the ends of the heavy steel ‘I’ beams, which extended eight or ten feet from the rear of said wagon, injuring himself as hereinafter stated.
“Plaintiff further states that the defendants, their servant and employee, carelessly and negligently allowed the said wagon, loaded with heavy steel ‘I’ beams, which extended eight or ten feet behind the wagon, to come to a standstill on Channing Avenue across Lawton Avenue, a much' used public highway, on a dairk night at aforesaid time, carelessly and negligently permitting it to remain there for thirty minutes or more while driver, a servant and employee of defendants, of said wagon owned and about the business of defendants at said time, unhitched the team from the wagon, argued the advisability of trading teams with another driver, a servant and employee of defendants driving another wagon for said defendants at said time near said place, and re-hitched same team to said wagon, without giving any signal or warning to approaching vehicle driven by plaintiff and without displaying a light on the heavy steel ‘I’ beams which extended eight or ten feet from the rear of the wagon and in the path "of east-bound traffic on Lawton Avenue; each and all of which acts and omissions on the part of defendants, its servants and employees, proximately and directly contributed to the aforesaid accident and injuries resulting therefrom to- plaintiff hereinafter stated.
“Plaintiff further states that said driver, a servant and employee of defendants, was not a fit or proper person to be intrusted with the said team and .wagon of defendants, loaded with heavy steel ‘I’ beams which extended eight or ten feet from the rear of said wagon, all of which was known by defendants or by the exercise of due and proper care might have been known to the defendants prior to the fourteenth day of July, 1912.”

The answer is (1) a general denial and (2) contributory negligence. The plea of contributory negligence was divided into two parts, i.e. (1) acts of the plaintiff other than the alleged violation of a city ordinance and (2) the violation of the following city ordinance: “No automobile, motor vehicle, locomobile or horseless vehide propelled by the use of electridty, gasoline or steam, by whatever name sncli vehicle may be known, whether nsed for purposes of pleasure or business, shall be moved or propelled along, over or upon any public street, avenue, boulevard or other public place, at a greater rate of speed than is reasonable, having regard to the traffic and use of such street, avenue, boulevard or public place; or so to endanger the life or limb of any person, or the safety of any property, and shall not in any event, while upon any such street, avenue, boulevard or public place, be moved or propelled at a greater rate of speed than-eight miles per hour in the business portions of the city, and not greater than ten miles per hour in the other portions thereof; and when turning a corner of intersecting streets, avenues, boulevards, or public places, or when traversing a curve or turn in a street, avenue, boulevard or public place where the view is obstructed, the rate of speed shall not be greater than six miles per hour. The term and words ‘business portions of the city’ as used in this ordinance shall be construed to mean the territory of the city contiguous to a street, avenue, boulevard or public place, which is at a particular point principally built up with structures devoted to business. ’

The reply placed in issue all the new matters in the answer. Upon a trial before a jury plaintiff had a verdict for $3000, and from a judgment thereon defendant appealed to the St. Louis Court of Appeals, and the case is now here in the manner above stated. Points made and the evidence bearing thereon will be left to the opinion.

I. In the trial of the case the defendant offered in evidence the ordinance as to speed pleaded in the answer, and the court excluded such ordinance, to which action exceptions were well preserved. The defendant further preserved the point by asking an instruction based upon the ordinance, which the court refused, and an exception was duly saved to this action. As we gather it from the record the trial court was of the opinion that this ordinance was in conflict with the statutes of the State. The reply had not pleaded the invalidity of the ordinance, hut denied that plaintiff had violated it in the running of his taxicab.

We think there was error in the exclusion of this ordinance, and for two reasons, (1) because the ordinance conflicts with no state statute, and .(2) because the validity of the ordinance was not challenged in the reply, although the ordinance had been pleaded in haec verba in the answer.

It is true that an ordinance of a city which conflicts with a state statute is void, but if a party is relying upon that fact, such invalidity should be pleaded, where it appears, as here, that the adverse party had pleaded and is relying upon such alleged invalid ordinance. The invalidity of a statute or ordinance should be raised at the first opportune moment, and in this ease that opportune moment was the reply. But this reply in this case proceeds upon the theory that the ordinance is valid, and specifically denies that plaintiff was driving “at a rate of speed greatly in excess of and in violation of an ordinance of the city of St. Louis, Missouri, at said time in forcé, and know as Section 1551. ” From this it appears that the plaintiff, not only did not plead the invalidity, but on the contrary in his reply avers that said ordinance was “at said time in force. ” This amounts to a waiver of the alleged invalidity of the ordinance, and it comes too late, when it is urged for the first time when the ordinance is offered in evidence. We take it that the invalidity of an ordinance, like the unconstitutionality of a law, must he brought in at the first open door under the orderly procedure in the case. [Lohmeyer v. St. Louis Cordage Company, 214 Mo. 685.] If the cause of action be founded upon a. pleaded ordinance, the answer would he the first open door. If the defense in its answer relies upon a pleaded ordinance, then the reply would be the first open door. So that we conclude, as both opinions of the Court of Appeals conclude, that the invalidity of this ordinance is not in the case.

We do not agree with, the minority opinion that its exclusion was harmless error. If this ordinance should have been admitted, as we conclude, then its rejection was potential error. It is true that the plaintiff, testifying in his own behalf, says he was only' running six to eight miles per hour, but much testimony shows that he- was running at a much greater rate of speed. Some witnesses place his speed at from 25 to 35 miles per hour. The defendant, if this ordinance had been in evidence, would have been entitled to an instruction to the effect that if plaintiff was running his taxicab at a rate of speed in excess of the named rate of speed in the ordinance, then he was guilty of negligence, and that if this particular ordinance negligence contributed to his injury, he could not recover although the defendants were guilty of negligence. This character of an instruction the defendants asked, but with the ordinance excluded from the case, they were not entitled to it, and it was refused. Had the ordinance been in evidence they would have been entitled to it.

The harmfulness of the refusal of this ordinance and thereby the preclusion of a proper instruction based thereon, is madé apparent when we examine the principal instruction given for plaintiff. This instruction made the exercise of “ordinary care” the measure of plaintiff’s conduct as he approached the wagon. Thé term “ordinary care” covered the speed o’f his taxicab, as well as his other conduct. Excluding this ordinance a jury might find that a speed of 35 miles per hour was the exercise of ordinary care, whilst under the ordinance such rate would not be the exercise of ordinary care, but -would be' negligence per se, and if such negligence contributed to the injury, no liability would follow. The exclusion of this ordinance was not only error, under the issues raised by the pleadings, but was error of the most harmful kind, and for which the judgment will, at least, have to be reversed.

II. Whilst under the pleadings in the case the invalidity of this ordinance is not really a question, yet we think the ordinance a valid one, and as the question will no doubt come up on a retrial of the case (if we conclude it under an amended reply, we deem it best to discuss the point.

In the year 1911, the Legislature revised the automobile laws of the State. [Laws 1911, p. 322, et seq.] These laws cover divers matters with reference to automobiles, and the running thereof, in this State. Section 1 of this act repeals chapter 83, Revised Statutes 1909, and enacts a new chapter to be known as Chapter 83. The second section reads:

“Except as herein otherwise expressly provided, this article shall be exclusively controlling:
“(1) Upon the registration, numbering and regulation of motor vehicles, and the licensing and the regulation of chauffeurs;
“(2) On their use of the public highways, and
“(3) On the accessories used upon motor vehicles and their incidents and the speed of motor vehicles upon the public highways ;
“ (4) On the punishment for the violation of any of the provisions of this article.”

Section 9 of said act reads: “Every person operating- a motor vehicle on the public highway of this State shall drive the same in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person: Provided, that a rate of speed in excess of twenty-five miles an hour for a distance of one-half of a mile shall be presumptive evidence of driving at a rate of speed which is not careful and prudent.”

The contention of the plaintiff, in effect is, that this Act of 1911 precludes cities from fixing a speed limit. If such is the effect, the sooner it is known the better. When this whole act is read, I do not believe that a speed limit ordinance fixing a rate of less than twenty-five miles per hour conflicts with this state law. The idea that the Legislature designed and intended to preclude speed limit ordinances absolutely in cities, towns and villages, by this act, is a striking one. The only thing said by the act about speed is that a rate of speed in excess of twenty-five miles per hour for a distance of one-half mile shall be presumptive evidence of driving at a rate of speed which is not careful and -prudent. The prior portion provides for prudent driving and a rate of speed so as not to endanger the life or property of another. It will be noted that the last portion of the section only says what shall be presumptive evidence of imprudent driving. The question is, can this section 9, when read in connection with section 2, supra, be held to make all speed ordinances of cities, towns and villages void? Did the Legislature intend to say that an automobile could be driven through the most active street in the great city of St. Louis at twenty-five miles an hour, and the act itself would not be presumptive negligence? Did the Legislature with no practical knowledge of conditions in congested centers, or of the conditions of the streets and highways thereof, intend to preclude the lawmaking bodies of such places from regulating speed of vehicles therein, in the exercise of the police powers ? If it did, it is well to know it, to the end that the -next Legislature may undo such a vicious act. According to plaintiff’s contention, drivers of these machines have practically an unbridled license to run twenty-five miles per hour through the most congested streets of the most populous city in the State, and the municipality, through its legislative body, is utterly helpless. This, because the act itself does not show negligence until a speed in excess of twenty-five miles per hour is reached,'and fixes no speed limit whatever.

In my judgment there is nothing in this act which tends to show a legislative intent to withdraw from cities, towns and villages the police power which they now possess, and for years, have possessed, to regulate traffic upon their streets. That prior to this Act of 1911 the city of St. Louis, in the exercise of its police power, theretofore delegated to the city by- the State, had the right to pass and enforce the ordinance in question, there can be no doubt.

Was it the intent of the Legislature, by this Act of 1911, to withdraw from the city the grant of police power theretofore made in this behalf! We think that no such intent can be gathered from the act, when read in its entirety. That the city had the right, under its police power, to pass speed ordinances prior to this act must be conceded, and if there is no intent of the law makers expressed in the Act of 1911 to withdraw this police power, the city still possesses it. All over this State were cities, towns and villages having regulatory ordinances with reference to traffic upon their streets by motor vehicles, and the Legislature knew this fact, and further knew that such ordinances had been enacted and enforced through the police powers granted to such municipalities of the State by the Legislature, and yet we find no language in this Act of 1911 indicating an intent to amend the divers municipal charters, by the withdrawal from such municipalities of the police power, under which they could control their streets in this regard. Before we hold that this police power has been withdrawn from these municipalities of the State, the legislative language will have to be more explicit than that found in this Act of 1911. We hold the ordinance in question a valid one, and that for this reason there was error in refusing to admit it in evidence.

III. It will be noticed that the plaintiff’s petition is predicated both upon ordinance negligence and common-law negligence. Both opinions from the Court of Appeals hold that there was no liability under the facts, growing out of the alleged ordinance negligence. This calls for a short detail of the facts. Defendants were engaged in the iron and steel business, The accident occurred in the night time. Plaintiff was driving his' car east on Lawton Avenue, and the collision occurred at the intersection of Lawton Avenue and Channing Avenue. Defendants had a long “reach wagon” loaded with some large “I” beams. These beams extended some eight feet or more beyond the hind axle of the wagon. The evidence conflicts on how far they extended. They were about the color of the asphalt street surface below them. The wagon wheels had cut into the soft asphalt street and the wagon was stalled there. Another team and wagon of the defendants with its driver was near. The two drivers were devising means of extricating the “stalled” wagon, when the accident occurred. This “stalled” wagon was across Lawton Avenue in Channing Avenue. The evidence conflicts as to whether the wagon with its protruding beams was so located as to stop'all passage of automobiles on the south side of Lawton Avenue, the side to be used by vehicles going east. There is testimony for the plaintiff to the effect that a vehicle could not pass between the ends of the iron beams and the curb, or in other words that the wagón and its protruding beams blocked the whole south side of Lawton Avenue. Plaintiff says that he discovered the wagon before he got to it, but could not see the beams. That upon seeing the wagon he veered his machine so as to miss the wagon, and struck the beams. There is evidence that defendants had no lights upon the wagon, and that the only lights at this street intersection on this Sunday night were two single-burner gas lights situated on diagonal corners of the intersection, which gave very little light upon this place where the wagon was standing. As stated the evidence tends to show, from plaintiff’s side of the case, that these iron beams were near the color of the asphalt below them, and therefore hard to distinguish from it.

The portion of the ordinance, which is applicable to this wagon, reads: “All other vehicles, while in use upon the streets between the hours of sunset and sunrise,- shall display one or more lights or lanterns on the outside of such vehicles, visible from front and rear.”

The point made by our brothers of the Court of Appeals is that a failure to comply with this ordinance, was not the proximate cause of the injury, for the reason that plaintiff actually saw the wagon, according to his own testimony. It is true that he did see the wagon (in dim outline), as can be inferred from Ms testimony, yet he says that he did not see the iron beams thereon.. It is also true, as suggested by our brothers, that a lantern placed on the front portion of this load, so as to be visible both from front and rear, would be a compliance with the ordinance, but it does not follow from this that the jury could not conclude, from all the facts, that the absence of this light (even on the front end of the load) was the cause of the injury. Such a light, so located, might have, and no doubt would have, indicated to plaintiff the true character of the load on the wagon. A glance at such beams would or might have indicated to him that they were liable to extend beyond the rear wheel, although it be granted that the light on the front end of the load might not have so lighted the protruding ends of the beams as to make them visible. In other words, this light would have shown the character of the load on the wagon, and with a knowledge that the wagon was so loaded, might-have indicated to plaintiff that the beams protruded beyond the rear wheels. We think that ordinance was a proper matter for the consideration of the jury under proper instructions. To this extent we agree to neither of the learned opinions from the Court of Appeals. The case, in so far as ordinance negligence is concerned, should go to the jury, unless the plaintiff is barred by his contributory negligence, a question we get to later.

IV. Going now to the common-law neligence. If it be a fact that the intersection was poorly lighted, as there is evidence tending to show; and, if it be a fact that this wagon and its load blocked the whole so^h side of Lawton Avenue, and most of the north side, as there is some evidence tending to show; and, should it further appear that this highway running east and west was being continuously used, and that the travelers to the east used the southern portion of the street, we are not prepared to say that this negligence should not likewise have gone to the jury. True it is that the mere stopping of the wagon under the circumstances was not negligence, nor was the delay of thirty minutes or more in getting it out, negligence, but if it was dark and the wagon’s contents could not be seen, and the wagon and its contents did in fact block the travel of that portion of the avenue, we are inclined to think that the defendants and their-agents owed some duty toward the traveling public, by way of warning or 'signals of some kind. The Court of Appeals in the majority opinion makes no direct ruling contrary to these views, but passes to the question of plaintiff’s contributory negligence as a matter of law, and holds that plaintiff was barred by his contributory negligence, and it is largely upon this question that the two opinions differ. The question of contributory negligence we take up next.

V. In the Court of Appeals, as here, the real crux of the case is the alleged contributory negligence of the plaintiff. It was upon this point that the Court of Appeals divided, the majority being of the view that the plaintiff should be declared guilty of contributory negligence as a matter of law. The question is one of fact, and we do not believe that the facts in the record call for a peremptory instruction to find for defendant on the ground of plaintiff’s contributory negligence. To do so would require us to ignore as unworthy of belief the testimony of the plaintiff when testifying in his behalf. As we have already indicated, the evidence conflicts as to the speed at which plaintiff was driving. The testimony of the plaintiff, if believed, shows that he was not negligent in this regard. It is true much testimony tends to show his recklessness at the time, but the credibility of all this testimony was for the jury.

It is further true that a witness testified that the protruding beams could be seen for a hundred feet or more, and were so seen that night, but plaintiff testi-. fies that he could not and did not see them. It is further true that the evidence largely predominates to the effect that there was ample room between the ends of these beams and the curb for the safe passage of a taxicab, and that vehicles did actually so pass whilst the wreck of the collision was there, yet on the other hand one witness for plaintiff, who drove up to the place with a motor car, says that he arrived there whilst the taxicab was yet under the beams, and that the beams extended closer to the curb than the taxicab which had been driven by plaintiff, and that a taxicab could not pass between these beams and the-curb. This witness even says that he looked over the situation with the view of driving his car through. So, throughout this testimony upon all vital questions touching the negligence of the plaintiff there is a conflict. It is true that the preponderance is against the plaintiff, but whilst this matter is one of material consideration by the trial court, it is not a question here after verdict and judgment. Without further details of the evidence, it is sufficient to say that there was evidence which would carry the question of contributory negligence to the jury. The conditions as to the character of the light at this crossing at the time is in conflict. In fact, every question upon which might be predicated the negligence of the plaintiff is wrapped up in conflicting evidence. What we might do, if sitting as a jury, is-beside the question. The demurrer to the evidence was rightfully overruled, but for the error heretofore pointed out the judgment nisi should be reversed, and the cause remanded for a new trial. It is so ordered.

Walker, Faris, Woodson and Williams, JJ., concur; Bond, J., concurs in result; Blair, J., concurs in paragraphs 1, 3, 4 and 5 and in result.


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    THE STATE ex rel. E. R. CLARK et al. v. C. S. WEST et al.
    In Banc,
    December 1, 1917.
    1. MANDAMUS: Demurrer to Alternative Writ: Admissions and Pacts, A demurrer by respondents to the alternative writ in mandamus confesses the truth of the allegations therein contained, and the facts of the case are to be ascertained from the writ.

      2. -: Discretion: Controlled by Mandamus. If the county court was not compelled by the statute to make a different order from the one it did make, but was invested with a discretion to exercise judgment in the matter, its action cannot be controlled by mandamus, unless its exercise was palpably arbitrary.
    3. -: County Court Drainage Act: Amendment of 1913: Discretion as to Necessity for Improvement. Section 5583 of the County Court Drainage District Act of 1913, Laws 1913, p. 272, if considered alone, without reference to the context, or to the succeeding sections of the act, requires the county court to make an order incorporating a drainage district in cases where the owners of a majority of the acres in the proposed district petition therefor. But such a construction would render the next section (Sec. 5.584, Laws 1913; p. 273) meaningless and futile, and Section 5583 itself unconstitutional and void. The two sections must be read together, and when that is done, they authorize the county court, even when a petition for incorporation signed by the owners of a majority of the acres in the proposed district is presented, to determine whether or not the improvement is “necessary for sanitary or agricultural purposes, or would be of public utility or conducive to the public health, convenience or welfare,” and a determination by the court, after the filing of a remonstrance and an orderly public hearing, that the proposed improvement is not necessary for any of these purposes, cannot be nullified by mandamus.
    4. -: -: Constitutionality: Who May Raise Question. The court in construing a statute may take a view of it which renders it constitutional', whether or not respondents, being mere officers, have a right to raise the question of constitutionality, even when a contrary construction would render it invalid.
    5. -: -: -: — : Private Property for Public Use: Judicial Question. Whether the use to which it is proposed to devote private property by the organization of a drainage district is a public or private use, is a judicial question.
    6. -:-:-:-: No Hearing. A statute which would authorize the taking of private property for the use of a drainage district without affording the owner an opportunity to have the question of whether the use is a public or private one judicially determined, would be unconstitutional; and a statute which would compel the county court, upon the presentation of a petition signed by the owners of the majority of the acres in a proposed drainage district, to make an unconditional and final order incorporating such district with powers to construct ditches and levees, and levy taxes on all lands therein to pay for same, with no opportunity on the part of the owners of the remaining acres to be heard on the question of the necessity and public utility of such improvement, would be such a statute.

      Mandamus.
    Writ denied.

      N. M. Bradley and W. D. Summers for relators.
    (1) Section 5883', as amended, says: “If the court finds that the owners of a majority in acreage of the proposed district are petitioners, or have joined in prayer of said petition for said district or improvement, hy motion, then the court shall . . . find in favor of making the improvement.” Reagan v. County Court, 226 Mo. 79. (2) Mandamus is the proper remedy in this case. State ex rel. v. Cramer, 96 Mo. 84; State ex rel. v. Public School, 134 Mo. 307; 26 Cyc. 162; State ex rel. v. Brown, 172 Mo. 374; State ex rel. v. Buhler, 90 Mo. 560; State ex rel. v. Phillips, 97 Mo. 331. “It has been said that it would be a monstrous absurdity in a well-organized government that there should be no remedy, although there should appear a clear and undeniable right.” State ex rel. v. County Court, 48 Mo. 475; Sheridan v. Fleming, 93 Mo. -321; State ex rel. v. County Court, 41 Mo. 225; In re Dunklin County v. Distr. Co., 23 Mo. 449; State ex rel. v. McCracken, 60 Mo. App. 651. “Ever since the 12 Mo. 166, mandamus has been regarded as- the proper proceeding to compel recalcitrant county courts to do their duty.” State ex rel. v. Fraker, 166 Mo. 140; citing Riley v. City, 31 Mo. App. 439. “Plearing evidence does not convert the matter into a judicial inquiry. ’ ’ State ex rel. v. Gruinote, 113 Mo. App. 407; State ex rel. v. Reynolds, 121 Mo. App. 699. The county court can be required hy mandamus to do their duty. State ex rel. v. Butler County Ct., 164 Mo. 214; State ex rel. v. Patterson, 207 Mo. 129. Section 5583', withholds the right to remonstrate, if a majority sign the petition, and makes it mandatory that the county court incorporate the ditch. Laws 1913, p. 271, “A formal finding or declaration 'of the necessity of improvements is not necessary, unless the statute specifically requires the same.” 2 Page & Jones on Taxation, secs. 803, 832; Joplin v. Freeman, 125 Mo. App. 717; State ex rel. v. Grim, 220 Mo. 489; State ex rel. v. Bidwell, Í36 Mo. App. 503; State ex rel. v. Keeze, 40 Mo. App. 650. (3) The constitutionality of a law is never presumed and it must he shown clearly to he unconstitutional. State ex rel. v. Pike County, 144 Mo. 275. General allegation that a statute is unconstitutional does not raise the issue. The provision of the Constitution violated must he pointed out. Ash v. Independence, 169 Mo. 77; State ex rel. v. Smith, 176 Mo. 44. (4) The respondents, not being personally interested and their rights not being affected, cannot raise or urge the question of the constitutionality of the statute. The demurrer admits that the question was not raised by the objectors in the county court, and the respondents cannot urge the same for them here. 25 Am. & Eng. Ann. Cases, 151; State ex rel. v. Williams, 23’2 Mo. 56.

      J. B. Nicholson, A. A. Whitsitt, J. S. Brierly and T. N. Haynes for respondents.
    (1) Before the county court had the power to incorporate the proposed drainage district it was necessary that they should hear evidence in addition to the report of viewers, as to whether or not the proposed improvements were necessary and conducive to the public health, convenience or welfare, or would be of public utility and benefit. R. S. 1909, sec. 5578. (A) In order that the court might be correctly informed to pass upon the questions and matters necessarily required by section 5578 to give the court jurisdiction and power to act and incorporate, the statute provides that the court shall appoint viewers and an engineer who shall report their findings in writing, with such maps, profiles and drawings as are necessary to advise the court, and that after the report of viewers is filed the court shall hear and determine the petition, the report of viewers and the grievances set forth in the remonstrance. Secs. 5583 and 5584, Laws 1913, p. 271. (B) The report of viewers is advisory only as to the matters set forth in their report, and is not binding upon the court. State ex rel. v. Taylor, 224 Mo. 475; Drainage Dist. v. Railroad, 236 Mo. 107. (C)' In the county court proceedings it was incumbent uipon relators to satisfy respondents, sitting’ as such county court, as to the practicability of the proposed improvements, and whether or not such proposed improvements were necessary and conducive to the public health, convenience or welfare, or would be of public utility and benefit; to do this it was necessary that respondents, sitting as such county court, hear evidence as to the questions of fact at issue; and repondents, having heard the evidence and made a finding, as alleged in relators ’ petition, their acts in so doing were judicial, and whether the conclusions arrived at were right or wrong, they are not subject to review by mandamus. Hernán v. Fiad, 108 Mo. 614 ; State ex rel. v. Broaddus, 209 Mo. 107; State ex rel. v. Hudson, 226 Mo. 239; State ex rel. v. Gentry, 112 Mo. App. 589; State ex rel. v. Oliver, 116 Mo. 188; State ex rel. v. Thorn-hill, 174 Mo. App. 469; High on Extraordinary Remedies, 230,102; 18 Ruling Case Law, p. .124, see. 38; State ex rel. v. Johnson, 266 Mo. 662; State ex rel. v. Jones, 155 Mo. 576; 26 Oyc. 158-161; In re Drainage Dist., 90 Wis. 301; Fleming v. Hall, 73 Iowa, 592. (2) If, as contended by relators, the word “shall” as used in Sec. 5583, R. S. 1909, as amended by Laws 1913, p. 272, be construed to- make it mandatory upon the county court to grant the prayer of. the petition and incorporate the drainage district upon a finding by the court that the majority of owners in acreage are petitioners, or join in the prayer of the petition, regardless of a finding by the court as to whether or not the proposed improvement shall be conducive to the public health, convenience or welfare, or where the same will be of public utility or benefit, and necessary to drain any lots, lands, public or corporate roads or railroads, as required by section 5578, then said act attempts to usurp the judicial functions of the courts, and is null and void, because violative of the provisions of both the Federal and State Constitutions. U. S. Constitution, see. 1, art. 14, second subdivision of article 6, and secs. 1 and 2, art. 3; Mo. Constitution,, sec. 20, art. 2, section 30 of article 2, subdivisions 17 and 33 of section 53 of article 4; and section 1 of article 6; Savannah v. Hancock, 91 Mo. 54; Mining Co. V. Joplin, 124 Mo. 129; Aldridge v. Spears, 101 Mo. 400; Mills on Em. Domain, sec. 11;- Lewis, Emi-. nent Domain, see. 238; 10 R. C. L., p. 18, sec. 15, page 30, sec. 27; 15 Cyc. 580; Cooley on Constitutional Lim. (7 Ed.), pp. 132, 244 ; 9 R. C. L., p. 623-4, secs. 8 and 9; 6 R. C. L., pp. 453, 456.
   FARIS, J.

This is an original proceeding by mandamus, whereby relators seek to compel respondents, as judges of the County Court of Cass County, to make an order organizing certain lands of relators and others situate in Cass County into a drainage district, under the provisions of article 4, chapter 41, Revised Statutes 1909, as amended by an act approved March 27, 1913. [Laws 1913, pp. 271-281.] This is the County Court Act, so-called to distinguish it from a similar but procedurally different proceeding whereof the jurisdiction lies in the circuit courts.

Upon the issuance of our alternative writ respondents demurred, thus in effect confessing, for the purpose of this inquiry, the truth of all allegations contained therein. The facts in the case are therefore to be found in the alternative writ. This writ is lengthy and since no point is made touching its form, we may more briefly state the facts by epitomizing it and making excerpts from it. Reached in this way, the facts run thus: Petitioners are the owners of certain swamp and overflowed lands situate on and along Big Creek, in Cass County, Missouri; desiring to ditch and drain said lands, and having in contemplation the construction of ditches and improvements more than five miles in length, petitioners to the number of more than five, being the owners of a majority in acreage of the lands, in the proposed district, filed with respondents, as members of the County Court of Cass County, a petition with the necessary allegations touching the nature of the proposed improvements and the route- and termini of the same. They likewise filed a proper bond, which was approved by respondents. Respondents thereupon, as such court, appointed three disinterested freeholders, and an engineer, who properly qualified and proceeded to view the lands proposed to he embraced in the district. Said viewers and engineer found, and so reported to the respondents, that the proposed improvement was necessary, practicable, and would be of public utility, and conducive to the public health, convenience and welfare. The viewers and engineer also indicated in and by their report the character, dimensions, location and probable cost of the drainage necessary to accomplish the objects of the petition.

After the filing of the report of the viewers and engineer, respondents made the proper orders of record, and caused a proper notice to be given by publication in a newspaper of the pendency of said petition, together with such other facts as are required in that behalf by the statute, and fixed a day at which the petition and the report of the viewers would be heard. Upon the day so fixed for the hearing of the petition “a remonstrance was filed by persons interested in land that would be affected by said proposed ditch and improvement, in which said remonstrance it was admitted that the proposed improvement contained swamp and overflowed land,” but said remonstrance objected to the location of the improvements, as fixed by the petition and viewers’ report, and set forth other grievances. Respondents thereupon proceeded to hear both the petitioners and the remonstrators, and at the conclusion of the hearing dismissed the petition, as will appear by their order made in the premises, which in full reads thus:

“Now on this 6th day of December, 1916, the day set for the hearing of the petition, the report of the viewers heretofore appointed thereon and any objections on the part of any of the landowners within the boundaries of the proposed drainage district who might remonstrate or object to the proposed improvement and report of viewers, and it appearing to the court that due notice of the filing of. said report was given according to law, and come now the petitioners and also T; J. George, W. W. Linn, N. Mickelson, T. W. Dean, Clara Reed, Addie Harris, C. L. Harris, M. Gray, Mark H. B earner, N. N. Mills, G. W. Everett, H. K. Temple-ton, J. A. James, S. A. Thompson, Edna and W. E. Templeton, H. H. Sides, O. T. Sonther, as remonstrators, and filed herein their remonstrances and objections to the formation' and incorporation of said proposed improvements, and thereupon this cause is by the court now taken up for hearing and the court having heard the pleadings, evidence and arguments of counsel and being fully advised in the premises, doth find that the petitioners, and those joining by motion in the prayer of said petition, own a majority of the acreage of the lands within the boundaries of said proposed district, and the court doth further find by the great preponderance of the evidence adduced that the proposed ditch, .levee and other improvements are not necessary for sanitary or agricultural purposes, nor would they be of public utility, nor conducive to the public health, convenience or welfare nor are they practicable and the court doth find against such proposed improvements and doth dismiss- the said petition and proceedings at the cost of the petitioners.
“It is therefore considered and adjudged by the. court that the petition and proceedings be and the same are hereby dismissed and that remonstrators go hence without day and have and recover from and against the petitioners as follows: E. R. Clark, L. W. Bixler, S. R. Sankey, James S. Gosnell, Louise Naden, II. II. Hodgson, E. S. Burroughs, Ema Schappert, G. W. Lightner, U. J. Groves, M. E. Seaton, J. R. Beasley, Mabel Beasley, S. V. Tobin, Nellie Tobin, O. II. Beasley, D. E. Nichols, Mary Nichols, Geo. Dahman, John T. McDaniel, Pearl McDaniel, L. B. Singleton, O. E. Burris, H. J. Dahman, Millie Schmoll, Geo. W. Davis, Essie B. Hodgson, S. N. Mills, S. J. Mills, W; C. Johnson, R. B. Bronough, Independence Hunting Club, by Sami. H. Woodson, Pres., Attest. H. A. Major, Secretary, Jessie L. Kerr, by Chas. C. Clasby with power of attorney, all costs and charges herein laid out and expended and that due process issue in this behalf.”

Thereupon E. R. Clark, and thirty-seven others, averring that it is the bounden duty of respondents, as judges of the County Court of Cass County aforesaid, upon the showing by them made to make an order organizing the proposed drainage district as a body corporate, and that they are remediless in the premises by and through any ordinary process or proceeding at law, prayed our writ of mandamus commanding respondents to find in favor of making the improvements, and in favor of incorporating said proposed district as a body corporate. Upon filing the above petition we issued our alternative writ, to which as stated, respondents have duly demurred, and therefore this case is here for determination upon the law applicable to the facts averred in the alternative writ. To the law of the case then we will address ourselves.

The order of the county court, made by respondents as judges thereof, conclusively shows that the county court refused to organize the proposed drainage district, because it found “by the great preponderance of the evidence adduced that the' proposed ditch, levee, and other improvements, are not necessary for sanitary or agricultural purposes, nor would they be of public utility, nor conducive to the public health, convenience or welfare, nor are they practicable.” Thereupon, and for the reasons quoted, respondents dismissed the petition and proceedings at the cost of the petitioners therein.

Relators, as we understand their position, insist that the amendment of 1913 (Laws 1913, p. 272), by providing that “if the court finds that the owners of a majority, in acreage of the proposed district are petitioners, or have joined in prayer of said petition for said ditch or improvement, by motion, then the court shall, or if less than a majority, the court in its discretion may find in favor of making the improvement,” in a case which meets the conditions stated, has made it a mandatory and merely ministerial duty of the county court to order the incorporation of the district. Since, therefore, the petition presented to the county court in the case at bar contained the names of the owners of a majority of the acreage to be embraced in the proposed district, there was left in the county court no discretion whatever, and it became its mandatory duty to make the order. Stating their position thus relators earnestly insist that mandamus will lie, and that our alternative writ herein should be made peremptory.

Bespondents contend, among other things urged, that the amendment of 1913 did not so- change the statute as to take away from the county court all discretion and make of the duties incumbent merely ministerial acts; hence they urge mandamus will not lie. They also contend that if the statute does have the effect to shear the county court of all discretion to determine questions of public welfare, health, utility, convenience and sanitation, then the statute is unconstitutional. This, for the reasons, (a) that it permits private persons to determine these questions of public use for themselves, and through the resultant construction of ditches on and across, and by levying taxes against, the lands of non-consenting citizens, takes the property of the latter without due process of law, ;(b) and that such a taking lacking a judicial determination of public utility would constitute the taking of the private property of a citizen for a private use.

As we gather the trend of relators’ argument, they do not contend that mandamus will lie, if the statute has left in the county court any discretion^ or if there are left to be determined any questions of fact; but in such case they, tacitly concede that it will not lie. If they do not concede this, the settled law which governs the issuance of the writ of mandamus concedes it for them. Bearing in mind that the county court did act, and did by the action it took refuse to organize the district upon the ground that the improvement prayed for did not involve matters of public use, and others involving a lack of public interests, which appears from the excerpt quoted from their order, we think there can be no doubt that if the court had any discretion left in it, and to be exercised by it before it made the order which it did make, man-damns will not lie. Mandamus in such case will lie to compel the taking of action, but it will not lie to dominate the nature of the action to be taken, nor to compel the taking of action contrary to that already taken. [State ex rel. v. Jones, 155 Mo. 570; State ex rel. v. Oliver, 116 Mo. 188; State ex rel. v. Board of Health, 103 Mo. 22.] This rule is well settled and is stated with much accuracy and more at length in a late work upon this subject, thus:

“It is a well recognized rule that where the performance of an official duty or act involves the exercise of judgment or discretion, the. officer cannot ordinarily be controlled with respect to the particular action he will take in the matter; he can only be directed to act, leaving the matter as to what particular .action he will take to his determination. Therefore, where an officer, in the exercise of a discretionary power, has considered and determined what his course of action is to be, he has exercised his discretion, and his action is not subject to review or control by mandamus.” [18 R. C. L. 124.]

To this rule the only exception is that in some cases where discretion is involved and has been exercised, the law will yet afford relief by mandamus, when there has been a palpably arbitrary exercise of the discretion given in the very face of -the law and of the conceded facts. [State ex inf. v. Talty, 166 Mo. 529; State ex rel. v. Harris, 176 S. W. 9; State ex rel. v. Adcock, 206 Mo. 550; 18 R. C. L. 126.] But for reasons which are fairly apparent, we do not think the facts here present bring this case within the exception noted. Which brings the argument back to a consideration of the amendment of 1913, and the effect of this amendment upon the duty to exercise- discretion, with which the applicatory statutes concededly vested the county court before they were amended. This question is decisive of the case.

After a careful consideration of these statutes, and after construing them in pari materia, we are constrained to hold that they still make it the duty of the county court to exercise its discretion in any case and to make a finding (after hearing the evidence upon the question if' necessary), whether the improvements prayed for are “necessary for sanitary or agricultural purposes, or would be of public utility or conducive to the public health, convenience or welfare.” We reach this conclusion because^(a) the amendment of 1913,_ itself, specifically says that if the county court shall find the above matters and things, it shall cause such finding to be entered upon the record of the court, and shall direct said viewers and engineers (Laws 1913, p. 272) to proceed to locate the improvements, make surveys, and make and file a schedule of the lands which will be benefited, damaged or condemned, etc., and because (b) any other construction, or the construction contended for by relators, would in our view inevitably render Section 5583, as amended by the Act of 1913 (Laws 1913, p. 272), unconstitutional and void. We discuss these propositions in their order.

Reading amended Section 5583, alone, and without reference to the context, or to the succeeding section of the same act, we would be forced to conclude that the Legislature intended to make mandatory a finding in favor of the incorporation of the district prayed for, in all cases wherein the owners of a majority of the acreage in the proposed district petitioned therefor. Such a view would render meaningless and wholly unnecessary the provisions of Section 5584, as amended (Laws 1913, p. 273), for, manifestly, if the county court is to be compelled .to incorporate a drainage district in every case wherein a majority of the owners of the acreage ask for such incorporation, any consideration of whether the improvement is “necessary for sanitary or agricultural purposes, or would be of public utility or conducive to the public health, convenience or welfare,” goes out of the ease, and such finding (though the statute still says it is a condition precedent to the making of further orders in the case), is a wholly vain and futile thing. It seems impossible to reconcile these two sections with the view that the Legislature intended to take from the county court all discretion, and in effect vest in the owners of a bare majority of the acreage the right of passing upon these important questions of whether a public interest is involved, or a public use is to be subserved by the proposed improvement. Since it is not number of individual owners of tracts of land, but the owner or owners of a majority of the acreage in the proposed district, who are to be considered, it becomes possible (upon the view that the Legislature by the amendment ousted the county, court of all discretion in the premises), for one single landowner to force the organization of a drainage district containing a five-mile ditch, and five or more such owners to force the organization of an improvement of any size or cost, over the protest of hundreds of other owners who together own but a bare minority of the acreage. At the same time such single owner would be, and under the view taken by relators, is in effect empowered to pass upon the question of. whether the' proposed improvement is necessary for sanitary or agricultural purposes, and whether it would be conducive to the public health, convenience or welfare. And such owner determines and forecloses these questions by his act of filing a petition and procuring thereon a mere preliminary and cursory report of the viewers and engineer. For automatically these findings follow the view urged on us by relators, without the necessity of taking evidence upon the question, and without the necessity of any court or other public body possessing judicial functions passing upon the matter.

This view that the Legislature must have intended to leave to the county court, and not to the owner or owners of a majority of the acreage, the discretion to determine the existence of the public use is also aided by the fact that amended Section 5583 (Laws 1913, p. 272), provides-for the filing of remonstrances against the organization of the district, wherein the grievances of the' remonstrators shall be set forth in writing. If it is mandatory upon the county court to organize every proposed district, and if they have no discretion otherwise, when one owner, or five or more owners of a majority of the acreage petition therefore, it is difficult to perceive what relevant matters could be urged by the remonstrators, which would be of any force and. effect in preventing' the organization of such district. Section 5592, Revised Statutes 1909, permits an owner of land to file exceptions to the report of the viewers, to have such exceptions heard, and if aggrieved by the judgment had thereon, to take an appeal upon the questions of (a.) whether compensation has been allowed for property taken, (b) whether proper damages have been allowed for property “prejudicially affected,” but nowhere is there any time or place left, if the contention of relators is correct, whereat any owner may successfully object or remonstrate against the organization of the district, for that the improvements proposed subserve none of the public uses mentioned in the statute and in our Constitution. By Amended Section 5583, supra, such owners may remonstrate upon the latter ground, and this is the only place provided in the statute for a remonstrance upon such a ground; but if the owner of a majority of the acreage asks for the formation of the district, the county court upon such a view would have no discretion to hear any objection, any remonstrance, or any evidence upon the contention that the improvement will subserve none of the public uses set forth in and declared to be requisites by the statute. Neither is the legality of the organization open to collateral attack. [State ex rel. v. Wilson, 216 Mo. 215; State ex rel. v. Blair, 245 Mo. 680; Barnes v. Construction Co., 257 Mo. 175.]

The above discussion demonstrates that if the construction of this amendment urged on us by relators, be the proper one, then the amendment is unconstitutional. But it is contended by relators that respondents are not in a position to raise this question of the unconstitutionalty of the amendment of 1913, because they are merely officers, and because they are not themselves personally affected. This is a much mooted and disputed question, and the law seems presently to lean to the view of the relators. [State ex rel. v. Williams, 232 Mo. 56.] But we need not pass and do not pass upon this precise question. For this is not accurately the situation presented. Here we have a section of the statute, which, by reason of its own language, as well as by reason of conflicting language in both the section preceding and the section following it, is ambiguous. In construing it we are asked to take' one view of its meaning, which renders it obviously unconstitutional, and to take another view which saves it from unconstitutionality. This we may do, whether respondents have the right to raise the question of constitutional invalidity or not. We do not pass upon its constitutionality; we simply construe it, and as an aid to that construction, say that if it means what relators contend it means it is unconstitutional. For upon such a view it permits the 'taking of private property for private use, which is prohibited by the Constitution. [Sec. 20, art. 2, Constitution 1875.] Neither does the procedure provided serve to bring such a taking within the exception here pertinent; that private property may be taken “for agricultural and sanitary purposes.” This for the reason that the question whether the use intended to be made of private property, is a public one, is not one to be determined by the Legislature, but is solemnly declared by the organic law to “be a judicial question, and as such judicially determined.” [Sec. 20, art. 2, supra.] This question of a public interest, or a public use, must of necessity then be relegated for its determination to some court possessing for the nonce at least the power of judicially determining it, and by its order adjudging it. Under the Constitution this determination of a public use vel non cannot be left to the viewers and an engineer; certainly not to these persons when no notice, and no day in court is afforded to those-whose property is injuriously affected or taken by the viewers and engineer’s report. Neither, we apprehend, ought the one single owner, or the five owners of a majority of the acreage in the proposed district, be permitted to determine this question of a public use for themselves, by the mere act of filing a petition and a bond.

Without doubt the Legislature has the right to declare by a general statute that the drainage of lands for sanitary or agricultural purposes is an act of public utility, that it constitutes a public use. For the Constitution in express terms declares such uses to he public and not private uses. [Sec. 20, art. 2, Constitution 1875.] But the determination of this, question in any given instance is necessarily to be relegated to a judicial determination. There is always left to be judicially determined the question whether any particular improvement proposed will inure to the public health or welfare; in short, whether it connotes in the instance at hand a public use of the private property proposed to be taken. In the view of the amendment taken by relators, no provision exists for such determination, and the statute would be void. Since we are enjoined by the ruled cases to so construe an ambiguous or doubtful statute as to preserve if possible its constitutionality (Kenefick v. St. Louis, 127 Mo. 1; Dorrance v. Dorrance, 242 Mo. 625), it is manifest that we can not do this and follow that construction of this amended statute, for which relators contend.

We conclude that as the amended statutes under discussion (Laws 1913, pp. 272 and 273) do not, when construed in pari materia and in the light of the Constitution, so change the law as to oust the county courts of all discretion in passing upon the question of whether there is a public use involved, mandamus will not lie to compel the county court to act in any particular way. Since, therefore, respondents have already exercised their discretion and have already passed upon this matter, our writ herein was improvidently granted, and it ought to be quashed. Let this be done.

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