author: ROY, C.

text:
    CITY OF ST. LOUIS v. HUGH ALLEN, Appellant.
    Division Two,
    July 16, 1918.
    1. ORDINANCE: Arbitrary WiU of Officer. Neither the Legislature nor the city can commit to the unrestrained will of a single- officer the power arbitrarily to favor one individual in the use of streets and to deny such favor to others.
    2. -: -: Drivers: Obedience to Direction of Police. An ordinance declaring that "drivers must at all times comply with any direction by voice or hand of any member of the police force, as to stopping, starting, approaching or departing from any place" puts the citizen in the arbitrary power of the police officer regardless of the circumstances of the case, is subject to the objection that it deprives persons of equal protection of the laws, and is invalid; and however meritorious may be the city’s case against an offender, he cannot be convicted of its violation.
    3. -: - — : Entrance to Building. A large eight-story office building fronting on a busy street must have an entrance from the street, as well as from the sidewalk; and a proper place marked off between posts and placarded with a sign warning all persons not to stand their vehicles between the posts, is a reasonable regulation; but an ordinance making the use of such placarded entrance dependent upon the direction of a policeman, is invalid.
    Appeal from St. Louis Court of Criminal Correction.— Hon. Benjamin F. Clark, Judge.
    Reversed.

      Leahy, Sanders & Barth for appellant.
    (1) An automobile lias, subject to valid statutory-regulations, the same rights on the streets of a city as any other vehicle. 2 Elliott on Roads and Streets (3 Ed.), sec. 1107, p. 647; 2 Dillon on Municipal Corporations (5 Ed.), sec. 714, p. 1086; State v. Swagerty, 203 Mo. 522; Hall v. Compton, 130 Mo. App. 679; Daily v. Maxwell, 152 Mo. App. 423. (2) The easement acquired by the public in the streets of a city is intended, inter alia, for purposes of travel and transportation and as a means of communication with all the incidental rights which accompany these purposes. 3 Dillon on Municipal Corporations (5 Ed.), sec. 1211, p. 1907. (3) Travelers, whether on foot or in vehicles, have a right to stop along the ways, roads or streets, for a reasonable time, for their own convenience in the ordinary course of business or social life; and they do not thereby lose their rights as travelers to the protection of constitutional guaranties to person and property. 2 Elliott on Eoads and Streets (3 Ed.), see. 1100, p. 640; Smethurst v. Independent Church, 148 Mass. 266; Odom v. Schmidt, 52 La. Ann. 2131; Lacy v. Winn, 3 Pa. Dist. 811; Mark v. Fritschy, 195 N. Y. 283. (4) The ordinance (Sections 1351 and' 1357) provides that drivers of vehicles in said city must at all times comply with any direction of any member of the police force, as to stopping or starting a vehicle, or approaching or departing from any place; or as to the manner of receiving or discharging passengers or freight in any place; makes a violation a misdemeanor punishable by a fine of not over one hundred dollars. It therefore attempts to confer upon the police officer the power to make traffic rules and regulations, and is void because a delegation of legislative power. Seibel-Suessdorf Co. v. Manufacturers Ey. Co., 230 Mo. 82; City of St. Louis v. Howard, 119 Mo. 47; State v. Thompson, 160 Mo. 343. (5) As an agency of the State the city of St. Louis has the power to reasonably regulate the use of its streets by vehicles and pedestrians, by proper legislative action, but the city neither has, nor could the Legislature confer upon it, the right to delegate to its police -officers the unlimited and unregulated power to improvise, make or declare, rules and regulations governing the use of its streets by owners or drivers of vehicles, or pedestrians, because such delegation of power violates the fundamental principle that reasonable regulation is governed by or subject to rules or restrictions duly promulgated and certain in character, and is, in effect, a grant of despotic power. 2 Dillon on Municipal Corporations (5 Ed.), sec. 665, 1002; City of St. Louis v. Heitzeberg Paclring & Provision Co., 141 Mo. 388; Elk-hart v. Murray, 165 Ind. 307; Hays v. Poplar Bluff, 263 Mo. 516; Commonwealth v. Boy, 140 Mass. 433; Cicero Lumber Co. v. Town of Cicero, 176,111. 27. (6) These ordinance provisions, Sections 1351 and 1357, are in conflict with Sections 4 and 30 of Article 2 of the Constitution of Missouri and the Fourteenth Amendment of the Constitution of the United States, because the liberty and property of the citizen are thereby subjected to deprivation and loss in an arbitrary manner, without notice, by arrest and fine, and are not due process, and deny the equal protection of the laws. Freund on Police Power (1 Ed.), sec. 611,,633; Clark v. Mitchell, 64 Mo. 579; State v. Loomis, 115 Mo. 313.

      Charles E. Daues and E. A. Eamilton, for respondent.
    (1) The city of St. Louis has authority to regulate the traffic upon its streets. (2) Section 1351, Revised Code of St. Louis 1912, requires drivers of vehicles to obey the direction of police officers in the use of the city streets. This is not a delegation of legislative authority, and traffic in congested sections cannot bo regulated except by the contant oversight and supervision of the traffic officer.
   ROY, C.

Appellant was tried and fined in the police court of St. Louis. He appealed to the Court of Criminal Correction and met the same fate. He has appealed to this court, a constitutional question being involved.

The complaint, omitting formal parts, is as follows:

“Hugh Allen to the City of St. Louis, Dr.

“To one hundred dollars for the violation of an ordinance of said city, entitled, ‘An Ordinance in Revision of the General Ordinances of the City of St. Louis,’ being ordinance No. 26653, sections 1351, 1357, 1358, approved November 9, 1912.

“In this, to wit: In the city of St. Louis and State of Missouri, on the 9th day of July, 1916, the said Hugh Allen did then and there drive a vehicle over and upon the streets of said city and did fail to comply with the direction by voice or hand of a member of the police force as to stopping, starting, approaching or departing from any place, to-wit, in front of Metropolitan Building, Grand Avenue and Olive Street, contrary to the ordinance in such cases made and provided,” ,

Section 1358 of the ordinance has no application to the case. The other two sections mentioned in that complaint are as follows:

“Sec.' 1351. Drivers must at all times comply with any direction by voice or hand, of any member of the police force, as to stopping, starting, approaching or departing from any place; the manner of taking np or setting down passengers or loading or unloading goods in any place.

“Sec. 1357. Any person violating any of the foregoing provisions, rules and regulations shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not to exceed one hundred dollars.”

In the Court of Criminal Correction and previous to the trial there, the defendant moved to quash the complaint on the ground that it did not state facts sufficient to constitute an offense under the ordinances of the city and because said Section 1351 of the- ordinance is contrary to the Fourteenth Amendment to the Constitution of the United States, in. that it deprives the defendant of his liberty and property without due process of law, and deprives him of the equal protection of the law. The motion was overruled.

The affair out of which this prosecution arose occurred on Grand Avenue in front of the. Metropolitan Building, which fronts west on that avenue about 150 feet, and south on Olive Street about the same distance. It is an eight-story office building, almost entirely occupied by professional men. About the middle of the west front at the curb are two posts twenty-three feet apart, on each of which is the sign, “Don’t stand between these posts.” The defendant was the chauffeur of Mr. Leahy, one of his counsel in this ease. On July 9,1915, near four o’clock in the afternoon, the defendant drove his car to said entrance. The wife of his employer was in the car on her way to the office of her dentist in that building. The defendant backed bis car so that the rear thereof was near the south post, and most of the car was in front of the entrance at an angle of about forty-five degrees. Backed against the north post was an express wagon extending directly into the street, and to some extent in front of the entrance, engaged in receiving and delivering packages. Cars were parked closely on both sides of the street at that point for a distance not definitely shown here. Nat-13. Clark, the traffic officer at that point, testified that, after defendant had occupied that position fifteen ox-twenty minutes, the elevator starter in the Metropolitan Building asked him to make defendant move his car from the entrance. The officer testified:

“I went out and said: ‘You will have to move your machine from the building here, you can’t block this entrance. ’ He said: ‘ Where will I go ? ’ I said: ‘ I don’t know where you will go, but you will have to move, ’ and he said: ‘Where will I park this car?’ I said. ‘You may have to go up to Washington or down on Lindell, but you can’t stop here.’ He said: ‘Huh, the madam was in the building and I will stay here until she comes down, ’ and I immediately placed him under arrest. ’ ’

The elevator boy testified that after defendant had been there fifteen or twenty minutes, he (witness) asked defendant to move, axxd that defendant said there was no other place to go, and that witness asked the officer to compel defexxdant to move.

The defendant on the stand said that after he had beexx there about fifteen or twexxty minutes, the elevator boy asked him to move, and that he (witness) told the boy to make the express wagons move then he would move, and that he told the officer the same thixxg. The arrest followed.

A building such as the Metropolitan must have an entrance from the street as well as from the sidewalk. It must have a mouth as all live creatures must have. That mouth must, as far as practically possible, be kept opexx and unobstructed. In this case twenty-three feet along the curb at the entrance was marked off between posts, axxd the placards on those posts warxxed all persons not to stand there. That space was an entrance, but not a place for parking vehicles. The express wagon was using a small part of it, not as standing ground, but for its entrance purposes. So far as appears, every one bnt the defendant respected the rights of other people in respect to that entrance. The defendant appeared on the scene and claimed a right which no one else claimed or received, the right to stop at that entrance in spite of the remonstrance of its spokesman, the elevator boy, and in spite of the police. It is as if he should say: “It is so nice for the owners of this building, the city authorities and all other persons to leave and keep this entrance open, leaving me as the only one entitled to close it and hold it ad libitum. I claim the special privilege under the Constitution which guarantees to me the equal protection of the laws! I even claim the right to tell the police to move other people and then come to me.”

However meritorious the city’s rights may be if properly presented, the ordinance relied on by the city in its complaint is invalid.

In Mayor of Baltimore v. Radecke, 49 Md. 217, the city ordinance provided that no one should erect a steam engine without the previous sanction of the mayor and council, and that any such engine so.erected should be removed within six months after such permit should be revoked and notice given by the mayor. It was there held that the city by ordinance could prescribe regulations for the use of steam engines, but that it could not commit to the unrestrained will of a single officer the power arbitrarily to favor one individual in that respect and to impose his will on another. It was there said: “In fact, an ordinance which clothes a single individual with such power, hardly falls within the domain of law, and we are constrained to pronounce it inoperative and void.”

That case is cited with approval in 1 Dillon on Mu. Cor. (5 Ed.), sec. 321.

In Richmond v. Dudley, 129 Ind. 112, it was held that city ordinances must specify rules and conditions to be observed in the conduct of business, and must allow all citizens the same privileges undér those rules, and must not empower an officer to arbitrarily discriminate between individuals in that respect. That case is cited with approval in City of Elkhart v. Murray, 165 Ind. 304. That rule is affirmed in Cicero Lumber Co. v. Town of Cicero, 176 Ill. 9, and the long list of cases there cited.

’ In Hays v. Poplar Bluff, 263 Mo. 516, it was held by Court in Banc that though a city can prescribe “fire limits,” yet it has no power to ordain that no building shall be constructed of the proscribed materials without the permission of the mayor and council, and that such permission shall not be given without the written consent of all persons holding property in the block. It was there said that in such matters the ordinance must make rules applicable to all alike, and that such matters cannot be left to the arbitrary will of any one. That case cites with approval the Indiana cases above mentioned.

The ordinance here involved puts the citizen in the arbitrary power of the officer regardless of the circumstances of the case. Its invalidity is so glaring that the respondent has not cited any authority to uphold it. In Bessonies v. City of Indianapolis, 71 Ind. 189, and in City of Elkhart v. Murray, 165 Ind. 304, supra, it was held that such ordinances are violative of the constitutional provision which guarantees the equal protection of the laws. It was there said that what the Legislature cannot do, it cannot authorize a municipal corporation to do.

In our opinion the ordinance in question is subject to the objection that it may deprive persons of the equal protection of the laws, and that, though the city may have a most meritorious case, it cannot be based on that invalid ordinance.

The judgment is reversed.

White, G., concurs.

PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: WHITE, C.

license: Public Domain

text:
    THE STATE ex rel. JOHN MILLS, Collector of City of Aurora, v. KATHARYN FLEMING et al., Appellants.
    Division Two,
    July 16, 1918.
    1. TAXATION: Lots Leased for Military Purposes: Exception. The statute (Sec. 8378, R. S. 1909) providing that “all buildings leased by the State for military purposes shall be exempt from taxation for all purposes during the period of such lease and use” contains no exception, and if it is not in conflict with the constitutional provision which exempts property “of the State” and declares that all laws exempting property other than that enumerated shall be void, property leased for the National Guard is not subject to taxation, whether it is used exclusively for such purpose or not.
    2. -: -: Exception as to Exclusive Use. The decisions which hold that property is not exempt from taxation unless used “exclusively” for educational, charitable or religious purposes, are not controlling in determining whether buildings leased by the State for military purposes shall be exempt, because they interpret a statute requiring such “exclusive use',” whereas the statute concerning the leasing of property for military purposes contains no such provision.
    3. -: -: Buildings Mean Lots. The evident intention of the statute declaring that “all buildings leased by the State for military purposes shall be exempt from taxation for all purposes during the period of such lease or use” was that the lot upon which the buildings are situated should be exempt.
    4. -: -: Constitutionality of Statute: Not Decided. Where in the suit for taxes the defendant pleaded that the lots were exempted by the statute declaring that “all buildings leased by the State for military purposes shall be exempt from taxation for all purposes,” and the plaintiff did not plead that such statute is unconstitutional, the court is not called upon to rule that such statute is violative of the provision of the Constitution which exempts property “of the State” and certain other property enumerated and declares that all laws exempting property other than that enumerated shall be void.
    5. -: Premature Suit. A suit filed in December, 1913, for the taxes assessed in 1912, which were payable in 1913, is premature, because the taxes were not delinquent until January, 1914.

      Appeal from Lawrence Circuit Court. — Eon. Carr Mc-Natt, Judge.
    Reversed and remanded.

      John L. McNatt for appellant.
    (1) The taxes for 1912 were not subject to suit until the first day of January, 1914. Therefore this suit brought on the eighth day of December, 1913, was premature, and the admission in evidence of the tax bill containing such tax was error. R. S. 1909, sec. 11491; State ex rel. Hudson v. Carr, 178 Mo. 229. (2) All Armories owned by the State and all buildings leased by the State for military purposes shall be exempt from taxation for all purposes during the period of such ownership, lease or use. Therefore the testimony that this property was partially used for other purposes was incompetent as a defense, and an attempt to read into the statute something not intended by the Legislature.' . R. S. .1909, sec. 8378.

      'E. E. Bloss for respondent.
    (1) The statutes relating to the bringing of suits is not the same where the party defendants are residents or non-residents. . In cases of non-residents the Statute provides that where service can be had on them the plaintiff is not required to wait one year after the tax becomes delinquent. R. S. 1909, sec. 11506. (.2) Exemption from taxation must be in terms too plain to be mistaken, and should be confined to the strict terms of the law granting it. Pacific Railroad Co. v. Cass County, 53 Mo. 17; State ex rel. v. Railroad Co., 89 Mo. 523; State ex rel. v. Railroad Co., 99 Mo. 30; State ex rel. v. Arnold, 136 Mo. 446. (3) Where a' statute exempts a building from taxation because of its use for some purpose which the State does not desire to tax and exempts because of that reason by such statute and the Constitution, then the building must be exclusively used for that purpose, and where the owners derive a benefit from other businesses through the property, the same is not exempt. North St. Louis Gymnastic Society v. Hudson, 12 Mo. App. 342, 85 Mo. 32; State ex rel. v. McGurn, 187 Mo. 238; Fitterer v. Crawford, 157 Mo. 41. (4) Exemptions being in derogation of equal rights are not to he favored by the courts. State ex rel. v. Johnson, 214 Mo. 656.
   WHITE, C.

The suit is brought by the collector for the city of Aurora to recover taxes for the years 1907 to .1912 inclusive, charged against Lot 7,- Block 6, of the original survey of the city of Aurora. The circuit court rendered judgment for plaintiff for all taxes except for the year 1907.

The answer, among other things, pleads that the lot described in the petition was leased and rented to the State of Missouri for military purposes and was used by the National Guard of the State of Missouri. The reply of the respondent contains a general denial, and other matters which are not set out in the abstract.

On the trial, after the plaintiff introduced the tax-hill and rested, the defendant introduced Colonel W. A.Eaupp, Colonel of the Second Eegiment of the National Guard of Missouri. He testified that Company G of the Second Eegiment, part of the time under a verbal lease and part of the time under a written one, had used the building on the premises as an armory all the time during the years for which the taxes sued for were assessed, excepting a short period of a few months; that fifty dollars a month was paid for the use of the building for the military hand and Company G.

An accurate description of the building does not appear in the record. Enough is shown to indicate that there was a basement, a main floor called the “Auditorium” on the ground floor, and rooms occupying part of the space upstairs; whether the second floor covered all the space or not is not shown. Once a week at night the Company used the main room, called the auditorium, for the purpose of drill, and also at such other times as they desired to use it for the purpose of inspection; the Company was inspected by a Government official at irregular intervals. The military band also occupied portions of the building. During part of the period the basement was used for an arsenal, and the guns were stored there; during all the period it was used for the purpose of bath and toilet by men of the Company. The janitor of the building had rooms upstairs and some of the offices were used by the Company.

Colonel Raupp testified that a couple of rooms were cut out down-stairs for offices and used by someone else, and possibly two rooms upstairs. It was also shown that there were billiard tables in the basement, but whether they were used by the Company, in connection with the military occupation, or by other tenants was not shown. At times some part of the building “was made into a theatre and used for a skating rink.-” That appears to be the room used by the Company for its drills. Whether this use-was merely permissive by the military authorities in charge, or whether there were other tenants that had exclusive use of the Auditorium at certain periods, is not shown. The evidence is very indefinite as to the extent of the use of the building, but the military band and Company G had access to practically all parts of it. There was no definite restriction of their right either as to the time of use or párts to be occupied. No evidence appears as to whether anybody paid rent to the owners for the use of any part of the building other than that paid by the military organization. But it seems the military authorities paid a reduced rent on account of the supposed exemption of the building from taxation.

The statute under which the defendants claim exemption from taxes is as follows:

Section 8378, Revised Statutes, 1909: “All armories owned by this State or by any organization of the National Guard, and all buildings leased by the State for military purposes, shall be exempt from taxation for all purposes during the period of such ownership, lease and use.”

The respondent cites several cases showing that certain property claimed as exempt from taxation must he “exclusively used” for the purpose for which the statute creates the exemption. [State ex rel. v. Johnson, 214 Mo. 656; Fitterer v. Crawford, 157 Mo. 51; N. St. L. Gymnastic Soc. v. Hundson, 12 Mo. App. 342.] These cases, and many others of like character, construe Section 11335, Revised Statutes, 1909. That section creates exemption from taxation for certain kinds of property, and among them real estate and buildings thereon, which “are used exclusively” for religious worship, schools or charitable purposes. In all cases where property is claimed to be exempt on the ground that it is used for such purposes the exemption is not allowed if a part of the premises is used for commercial purposes. For instance, a building used for a Young Men’s Christian Association, where a portion of the ground floor of the building was rented for stores was not exempt. [State ex rel. v. Y. M. C. A., 259 Mo. 233.] In a case.where the premises owned by the Order of Elks, a charitable organization, were used for danc-. ing and social parties where meals and refreshments, including liquors, were served to the members and guests, it was held subject to taxation because not exclusively used for the charitable purposes of the order. [B. P. O. E. v. Koeln, 262 Mo. 444.]

Such cases are not controlling, because they interpret an entirely different statute from the one under consideration here, The “exclusive use” provided for in the section mentioned and its absence in the statute relating to armories, indicates a clear intention of the lawmakers to have a different test applied. Section 8378 quoted above provides that “all buildings leased by the State for military purposes shall be exempt from tax-ation for all purposes during the period of such . . . lease and use.” No exception is provided in ease the building may also be used for other purposes during the period. The exemption applies in every case where the building is so leased and used.

There is no provision in the taxation laws for separation of a building from the ground for taxation purposes ; when the building is exempt from taxation it necessarily exempts the ground upon which it is situated; evidently that was the intention.

The reply of the plaintiff is not set out in full, and if the constitutionality of Section 8378 is raised in the pleading it does not appear from the abstract of the record, though it could have been so raised, because the answer pleads a defense under that section. From the argument presented in the briefs it appears that it was not so raised. Therefore, we are not called upon to decide whether that part of that section which provides that armories “leased by the State for military purposes” is constitutional, under Section 6 of Article 10 of the Constitution which exempts property “of the State,” with other property enumerated, and Section 7 of that article which provides that all laws exempting property other than that enumerated “shall be void.”

The suit was filed December 8, 1913. In that ease the taxes assessed for the year 1912, which were payable in-1913, were not delinquent until January, 1914, and the suit was premature in any case as to that part of the bill.

The judgment is reversed and the cause remanded.

Boy G., concurs.

PER CURIAM — The foregoing'opinion by White, U, is adopted as the opinion of the court.

All of the judges concur.


author: WILLIAMS, J.

text:
    In Matter of Petition of W. W. CRITZER et al. For Public Road.
    Division Two,
    July 16, 1918.
    1." PUBLIC ROAD: Evidence: Transcript of County Court Record. In the trial in the circuit court of a proceeding to establish a public road, where the issue as to damages is not being tried, but the only issue is the one of the public necessity of the proposed road, certified copies of the roll and record of the proceedings in the county court are proper evidence.

      2. -: Necessity: Established Cross Road. The existence or nonexistence of a parallel road one half mile distant from the proposed road, and whether it has been established by dedication or general use, or has a definite location, it not conclusive of the public necessity of the proposed road. Under the statute (Sec. 10437, R. S. 1909) the public necessity of a proposed road does not depend upon a showing that no other possible egress or ingress for the public use exists.
    3. -: -: Conflicting Evidence. A proceeding to establish a public road is an action at law, and if the evidence on the question of its public necessity is conflicting and there is ample evidence to justify the court’s finding that there is a public necessity for the road, the Supreme Court will not interfere with the finding.
    4. -: Notices: Certified Copy of Affidavit. An objection that a certified copy of the affidavit filed in the county court showing proper posting of notices of the intended application for the establishment of a proposed public road is not the best evidence and should not have been admitted in evidence in the trial on appeal in the circuit court until the loss of the original was accounted for, made for the first time in the Supreme Court, will not be ruled.
    5. -: Damages: Jury Trial: After Appeal. Upon an. appeal from .the judgment of the county court “in ordering the establishment of a public road,” the appellants are not entitled to a jury trial to determine the amount of damages sustained by them by reason of the appropriation of their land, or to have the question of damages considered at all. An appeal from the judgment of the county ' court opening or establishing the road, and from that order alone,' does not give the circuit court jurisdiction to try de novo the question of damages adjudged by separate judgments in the county court.
    6. -: -: No Request for Jury Trial. If appellants made no attempt in the circuit court to have a retrial of the question of damages, they cannot be heard to complain in the Supreme Court that they were denied a jury trial on that question.
    Appeal from Lawrence Circuit Court. — Hon. Carr McNait, Judge.
    Affirmed.

      M. S. Ginn, William B. Skinner and Robert Stemmons for appellants.

      (1) It was an error to permit to be read in evidence tbe roll and record of the entire proceedings of the cause in the county court. Railroad v. Pfau, 212 Mo. 407; Railroad v. Roberts, 187 Mo. 407. (2) It is not necessary that a public road be established by an order of the county court, nor is it necessary that public money be expended upon it, but a public road may exist by dedication and acceptance by the public, which may be implied by long user by the public. State v. Muir, 136 Mo. App. 118; Rector v. Hart, 8 Mo. 323; Benton v. City of St. Louis, 217 Mo. 687. (3) The county court had no initial jurisdiction to establish a new public road, when the requisite notice had not been given. Unless the notice had been given according to the- statute, the circuit court had no appellate jurisdiction to try the case de novo. The copy of the affidavit as to the posting of the notices was not admissable in evidence in the absence of evidence accounting for the original affidavit. The testimony of petitioners witness shows that the notice was not given according to the statute. Sec. 10436, R. S. 1909; Daugherty v. Brown, 91 Mo. 26; Ellis v. Railroad, 51 Mo. 200; Jefferson County v. Cowan, 54 Mo. 234; Whitely v. Platte County, 73 Mo. 615. (4) The appeal in this case transferred the entire cause to .the circuit court for trial de novo, and the judgment should have settled all the rights of the parties. The appeal presented two issues to be tried anew in the circuit court, namely, the public necessity of the road in question, and the measure of the damages or the amount of compensation to the landowners whose land was appropriated for a public use. The exceptors were entitled to a trial by a jury upon the issue of the measure of damages, and it was just as essential for the court to accord them that right and award them damages as it was to find the road to be a public necessity. Sec. 10440, R. S. 1909; Sec. 21, Art. .2, Mo. Constitution; In re Petition of Gardner, 41 Mo. App. 593; Colville v. Judy, 73 Mo. 653; Mayes v. Palmer, 206 Mo. 293.

      James A. Sater and John L. McNatt for respondent.
    (1) It was not error to call the trial judge’s attention to the roll and record in this case, as the question of the amount of damages to the remontrators was not before the court. Certified copies of records are admissible in evidence. R. S. 1909, secs. 6331, 10438. (2) Appellants objected to petitioners showing anything other than the affidavit as to the posting of notices, which was done and not disputed by appellants and was taken as true by the court. A litigant cannot assume inconsistent positions, in the Appellate Court from that taken in the trial court. Paul v. Western Union, 164 Mo. 241; R. S. 1909, sec. 10436. (3) The affidavit for appeal did not bring before the circuit court a reconsideration of the award for dámages. R. S. 1909, see. 10440; Bennett v. Woody, 137 Mo. 377.
   WILLIAMS, J.

This proceeding, originally im stituted in the county court of Lawrence County, seeks to establish a new road one-half mile in length along -the north half of a line running north and south through the center of Section 9, Township 29, Range 27, Lawrence County, Missouri. The proposed road is an extention of a north-and-south road coming down from the north, and will also connect two parallel roads running east and west, one along the north and the other along the center line of said Section 9.

A remonstrance was properly filed, attacking the public necessity of the proposed road. The matter proceeded in the regular way in the county court, resulting in a judgment finding the proposed road was a public necessity and ordering the same established. Three persons whose lands were taken by the new road filed exception to the commissioners’report on damages, and a trial was had before a jury in the county court, which resulted in a separate judgment re-assessing the damages:

The remonstrators filed in the county court the following affidavit for appeal to the circuit court (caption and signatures ommitted):

“Before the clerk of -the Lawrence County Court, of Lawrence County, Missouri, M. S.- Ginn, attorney for defendants, being duly sworn, upon his oath says, that he is attorney for the defendants and that their application for appeal is not made for vexation or delay, but because they believe the appellants to be injured by the judgment of the Lawrence County Court, in ordering the establishment of a public road in the north half of Section Nine, Township Twenty-nine of Eange Twenty-seven, in Lawrence County, Missouri.” (Italics ours).

The county court made an order granting an appeal to the circuit court.

The question as to the public necessity of the proposed road was tried de novo in the circuit court. Upon the trial in the circuit court the petitioners offered substantial evidence tending to prove that the proposed road was a public necessity. On the other hand the remonstrators offered evidence tending to show that the proposed road was not a public necessity. After hearing the evidence the circuit court entered judgment finding that the proposed road was a “public necessity and practical,” that all necessary steps required by law had .been properly taken by the petitioners, and ordered that the proposed road be established.

Thereupon the remonstrators duly perfected an appeal to this court.

Any additional facts found to be necessary to an understanding of the points raised will be mentioned'in the course of the opinion.

I. Appellants first contend that the circuit court erred in admitting the certified copies of the roll and record of the entire proceedings in this cause m the county court m evidence.

At the time the above documents were offered in evidence it does not appear that appellants- made any objection thereto. Furthermore, even though objection had been properly made, we are unable to see wherein this constituted error in the present case. The certified copies of documents offered in evidence were contained in the transcript of the case on appeal from the county court to the circuit court, properly certified to by the county clerk. All portions relating to jurisdictional matters, such as the pleadings, etc., properly contained in the transcript, were proper matters for the court’s consideration, and it was not even necessary that they be formally offered in evidence. So far as the trial in the circuit court was concerned the transcript of such matters, took the place of original pleadings, etc.,'

The case of Railroad v. Pfau, 212 Mo. 398, relied upon by appellant, has no application to the present case. In that case it was held erroneous to read the commissioners’ report or award of damages in a condemnation case to the jury empaneled to try the same issue of damages upon exceptions to the commissioners’ report.

In the present case, the issue as to damages was not being tried before the circuit court, and that being true those portions of the admitted transcript showing the amount of damages reported by the commissioners in the county court could in no manner have operated to appellants’ prejudice upon the trial of the issue before the court as to the public necessity for the proposed road. We therefore rule this point against appellants.

II. The second assignment of error is as follows: “The court erred in finding that the road between Sections Nine and Ten was not established by dedication and in finding that the road in controversy was a public necessity.”

There was evidence tending to show that for many years the public had been using, as a road, a way running north and south between Sections Nine and Ten, one-half mile east of the proposed road. There was likewise testimony tending to show that said road had no definite location — that it ran over rough and hilly unfenced land— the exact point of passage being determined more by the conditiou of the ground or weather than by any fixed or definite boundary of the road. There was evidence to the effect that some of these appellants shortly before or at about the same time this proceeding was instituted made unsuccessful! attempts to have the county court establish a road at the very point where they now say there had been a road for many years. There was some evidence to the effect that it was such a, road as to answer the needs of the public in that vicinity. On the other hand, there was testimony that it was impossible to haul loads over the same, because of the hills and unimproved • condition of the indefinite roadway, and that no public money had ever been expended on said road.

Of course the only purpose of the evidence concerning the above road was to throw some light upon the question of the public necessity of the proposed road.

The existence or non-existence of a road at the above place would not be conclusive one way or the other as to ,±he public necessity of a proposed road at another place. We think the existence of the “public necessity” of a proposed new road (as that term is used in Sec. 10437, R. S. 1909) does not depend upon a showing being made that no other possible ingress or egress for the public existed. Certainly the condition, location, and the inconvenience of the existing routes and the added conveniences to the public arising from a new route are elements (among others) to be considered. The evidence tends to show that the proposed road (which before the trial in the circuit court had become opened for travel) runs over level ground, that it supplies a much better route for heavy hauling, as well as traveling by buggies or automobiles, and that the new road is used by many people in going to and from the town of Miller, their trading point.

This is an action at law. The evidence upon the question of public necessity was' conflicting. There was ample evidence to support the court’s finding that the proposed road was justifiable on the ground of public necessity. Under such circumstances this court cannot interfere with the finding of facts so made.

III. It is next contended that the court erred in admitting in evidence a certified copy of an affidavit filed *n county court showing proper posting of notices of the intended application for the establishment of the proposed road.

It is now contended in this behalf that the certified copy was not the best evidence and that the loss of the original should have been established before the copy was competent.

Concerning this point it is only necessary to say that the above objection was made for the first time in this court. It is therefore unnecessary to determine what would have been the result had the objection been timely made upon the trial.

IY. Appellants’ next and last assignment of error is as follows :—

“The court erred in denying the remonstrators and exceptors the right to a jury trial to determine the amount of damages sustained by them by reason of the appropriation of their land for a public road and in taking private property for a public use without first awarding just compensation therefor.”

This assignment is without merit. No appeal was taken by appellants from the judgment of the county court assessing damages. The judgment of the county court appealed fróm was the judgment opening or establishing the new road (see affidavit for appeal in the foregoing statement).

Section 10440, Revised Statutes 1909, provides for amappeal in such cases “from the judgment of the county court assessing damages, or for opening, changing or vacating any road.”

The appeal from the judgment of the county court opening or establishing the road did not give the circuit court jurisdiction to try de novo the question of damages which were adjudged by a separate judgment of the county court. [See Bennett v. Woody, 137 Mo. 377, 1. c. 380; Howell v. Jackson County, 262 Mo. 403, 1. c, 415 et. seq.]

Appellants’ present contention must have been an afterthought. The record does not show any attempt on their part to have a re-trial in the circuit court of the question of damages. That, in and of itself, would also he sufficient reason for disallowing the above assignment of error.

The judgment is affirmed.

All concur.


author: BOND, C. J.

text:
    THE STATE ex inf. FRANK W. McALLISTER, Attorney-General, v. CONSOLIDATED SCHOOL DISTRICT NO. 2 OF PLATTE COUNTY, Appellants.
    In Banc,
    July 19, 1918.
    1. CONSOLIDATED SCHOOL DISTRICT: Valid Statute. Section 10776, Revised Statutes 1909, is a valid enactment and applicable to “school districts that may be hereafter organized under the laws of this State,” and is therefore applicable to a consolidated school district organized in pursuance to a subsequent statute.
    2. -: Forfeiture of Franchise: Failure to Maintain Eight Months’ School. Section 10776, Revised Statutes 1909, declaring that “whenever any school district . . . shall fail or refuse, for a period of one year, to provide for an eight months’ school in such year, provided a levy of forty cents on the one hundred dollars’ valuation, together with the public funds and cash on hand, will enable them to have so long a term, the samo shall bo deemed to have lapsed as a corporate body,” was only intended to affix a forfeiture for failure to provide an eight months’ school when such omission did not result from inability to have so long a term, or where the failure was purposeful or intentional on the part of the school district. It has no application to a consolidated school district to" which, during the pendency of litigation in which the validity of its organization is drawn in question, the county officers refuse to credit or pay the school taxes, and which because of those facts is unable to conduct a school, but nevertheless in entire good faith endeavors, as far as possible, to exercise its corporate franchise.
    8. -: -: Failure to Maintain Elementary Schools. The terms of Section 4 of the Act of 1913 (Laws 1913, p. 723), making it the duty of a consolidated school district to maintain an elementary school within a named distance of pupils, in case no transportation is provided for, do not condition an automatic fortfeiture of the district’s corporate franchise upon its nonobservance, and the courts will not make a failure to observe its requirements a ground of forfeiture. [Criticizing State cx rel. v. School District. iá5 Mo. App. 507.]
    Appeal from Platte Circuit Court. — Hon. Alonso B. Burnes, Judge.
    Reversed and remanded (with directions).

      N. B. Anderson, Guy B. Park, and Irwin & Haley for appellant.
    (1) The lav? abhors forfeitures, and never declares one except upon the ground of absolute necessity. McFarland v. Accident Assn., 124 Mo. 204; Stout v. Mo. Fidelity & Casualty Co., 179 S. W. 993. (2) The provisions of See. 10776, R. S. 1909, which relators' here seek to revoke, were never intended to apply, except in a case of a wilful refusal of the district to maintain an eight months’ school, providing the same could be done by a levy of forty cents on the one hundred dollar valuation, together with the public funds and cash on hand, and the statute should be. given a- construction with the law relating to forfeitures. (3) Relators will not be heard to complain of the default of the officers of the consolidated district caused by their own intentional and unlawful interference.

      Frank W. McAllister, Attorney-General, James H. Hull and George W. Day of counsel.
    (1) The consolidated district organization lapsed when it failed to establish and maintain a high school, as provided by Laws 1913, 721. State ex inf. v. Consolidated School District, 195 Mo. App. 507. (2) Consolidated District No. 2 forfeited its rights and privileges as a school district, by failing, for the period of one year, to provide an eight months’ school in such year, when a levy of forty cents on the one hundred dollars’ valuation, together with the public funds and cash on hands, enabled it to have so long a term. R. S. 1909, sec. 10776; State ex rel. v. Claxton, 263 Mo. 701. (3) Consolidated District No. 2 lost its corporate rights as a school district, by failing to conduct a school of any kind in all of the original school districts comprising it, and in failing to maintain an elementary school within two and one-half miles by the nearest traveled road of the home of every child of school age within said district, there being no transportation provided therein. Laws 1913, p. 723, sec. 4; State ex inf. v. Consolidated School District, 195 Mo. App. 507.
   BOND, C. J.

— I. In the spring of 1914, Consolidated School District No. 2 of Platte County, Missouri, was duly organized over a territory theretofore embracing several school districts. These, with a few exceptions, denied the validity of the consolidation and attempted to act independently. Thereupon the Attorney-General filed proceedings in the nature of a quo warranto to oust the'directors of one of the former school districts. The judgment of ouster was rendered in the trial court and affirmed on appeal in this court, where all the facts relating to the organization of the consolidated district and the attacks made upon its validity are fully stated. [State ex inf. v. Smith, 271 Mo. 168.] Following that decision of this court, the present information in the nature of a quo ivarranio was brought by the Attorney-General, seeking a forfeiture of the franchise of the Consolidated School District, upon the allegation that this had happened because of its failure “to provide for an eight months’ school” as required by Section 10776, Revised Statutes 1909. The present information also charged a failure to comply with the statute governing the formation of the consolidated school districts, and prescribing their duties.

The answer sets up the refusal of the former school districts to recognize the lawfulness of the consolidation. and failure of the county clerk to extend the taxes for its benefit until the decision of this court affirming the validity of its corporation. [State ex inf. v. Smith, 271 Mo. 168, supra.] The answer further averred that respondent did maintain a high school and others required by law, as far as possible, and that the section of the statute (Sec. 10776) was unconstitutional.

Upon a trial, the evidence tended to show that in the year 1915, and subsequently, until the ruling of this court in 271 Mo. 168, supra, the county cmr. uniformly extended the taxes for the benefit of the original school districts; that they never turned over the school property to the consolidated district; that the consolidated district did maintain a high school in one of the old districts, Ca~Men Point, where it seems a district school was also maintained; that in 1915 the consolidated board employed an attorney to recover the school funds properly belonging to it, who made demand therefor to- the county treasurer, which was refused. Shortly after the present proceeding, the consolidated district sought to enforce that demand by a mandamus suit; that up to the trial, owing to the obstructive tactics of the directors of the old school districts, and the inability of the consolidated district to recover the funds and property belonging to it, the teachers, employed by the board of .the consolidated district, were also employed by the officers of the old district and were paid out of the moneys deceived of the latter. The evidence further discloses that after the county clerk signified his willingness, following the decision of this court supra, to extend the taxes for the benefit of the consolidated district, the present action was brought on the grounds stated above.

The trial court, upon a consideration of the testimony, adjudged the corporate existence of respondent to have been forfeited, and that its powers under its organization had lapsed. From that decision, this appeal was duly taken.

II. There is no merit in the suggestion of the respondent’s answer that the Section 10776, upon which this decision is chiefly rested, is unconstitutional, nor is any argument for that contention made in brief.. That section is a valid enactment and applicable according to its term “to school districts . . . that may be hereafter organized under the laws of this State,” and, therefore, ex necessitate, applicable to a consolidated school district organized in pursuance of a subsequent statute. [Laws of 1913, pp. 721-2 et seq.)

The pith of this case is, whether, under the facts of the present record, the statute (R. S. 1909, sec. 10776) is in vocable. Our conclusion is that neither the evidence adduced ón the trial, nor the terms- and intent of the statute, entitled the relator to set it up as a ground of forfeiture of the corporate rights of the respondent.

It will be observed, that the pertinent part of the section under review, is couched in the following terms:

“Sec. 10776. Forfeiture of organisation, etc.— Whenever any school district in this. State, now organized or that may be hereafter organized under the laws of this State, shall fail or refuse, for the period of one year, to provide for an eight months’ school in such year, provided a levy of forty cents on the one hundred' dollars’ valuation, together with the public funds and cash on hand, will enable them to have so long a term, the same shall be deemed to have lapsed as a corporate body, and the territory theretofore embraced within such lapsed district shall be deemed and taken as unorganized territory. ’ ’

It will be seen at a glance, that the above provision for forfeiture is wholly inapplicable unless it shall be shown by the evidence that the funds in the hands of the school district, together with the levy of forty cents on the one hundred dollars’ valuation, are sufficient for the maintainence of an eight months’ school in one year. There is no substantial evidence in the present record to that effect, for until the final decision of this court validating the organization of respondent, it did not receive the public funds and cash on hand belonging to the former school district to which it was entitled. [Laws 1913, p. 723, sec. 6.] Indeed, the mandamus suit, brought for that purpose by respondent, is still pending. This fact, in connection with the evidence showing an appropriation of such funds, and also intervening revenues from taxation belonging to respondent, by the officers and directors of the old school districts, thereby preventing respondent from the direct handling of such funds for the payment of teachers employed by it and compelling it, in order to maintain schools, in many instances, to employ the teachers selected by the old districts and to acquiesce'in the payment of their salaries by the directors of the former school districts, are sufficient to exclude respondent from the purview of the statute in question, which shows on its face and by its terms, that it was only intended to affix a forfeiture for failure to provide an eight months’ school in one year, when such omission did not result from inability “to have so long a term,” or where the failure was purposeful or intentional on the part of the school district.

A thorough review of the testimony in this ease, satisfies us of the entire good faith of respondent in the exercise, as far as possible, of all its corporate franchises. It did maintain a high school in one 0£ ppe districts, and seems to have maintained also, as far as possible, schools in the other localities where they had been theretofore maintained, through the medium of a payment of the salaries of teachers out of the revenues that were improperly in the hands of the directors of the former school districts. In these circumstances, the statute relied upon by relator is wholly inapplicable, for giving that statute its full scope and effect, as was done in the case of State ex rel. v. Claxton, 263 Mo. 701, it does not appear in the present case, as it did appear' in that case, that the forty-cent levy and the public funds and cash on hand, provided a fund sufficient to maintain a school for eight months in one year. In that case, the sufficiency of the revenues of the school district was shown by an express agreement. In the present ease, the record does not show that the “public funds and cash on hands” belonging to the former school district has ever been turned over to respondent, nor its ability, without such funds, to have independently paid all of the teachers employed by it. Under the authority of that case and the facts of the present one, therefore, the statute invoked by relator has no application whatever to the present record.

Some reliance seems to have been placed by the learned trial judge, in his judgment forfeiting the franchise of respondent, upon the evidence tending to show the failure of duty on the part of respondent in the matter of maintaining an elementary school within the statutory distance of its pupils (Transportation not being provided for). [Laws 1913, p. 723, sec. 4.] It is needless to say, that the terms of the section referred to do not condition an automatic forfeiture upon its non-observance, and the courts are not willing to interpolate such a result in the terms of the statute.

In the case of State ex rel. v. School District No. 5, 195 Mo. App. 507, the judgment annulling the organization of the consolidated school district for failure to maintain schools, construed by that court to be within the-purview of the act providing for the creation of such consolidated school district, was stob silento affirmed without particular discussion as to whether the duty of the consolidated school district might not have been properly enforced by mandamus and without connoting the fact that the statute then under review did not affix forfeiture eo nomine to a mere omission to perform that duty, absent any intent to disobey the statute, or when compliance with its terms was wrongfully prevented. It is not necessary to say more as to the correctness of the views expressed in that opinion.

For the reasons heretofore given, the judgment in this case is reversed and the cause remanded with directions to the trial court to dismiss this proceeding.

Blair, Walker, Woodson, Williams, and Graves, JJ., concur.


text:
    KANSAS CITY BOLT & NUT COMPANY, Appellant, v. KANSAS CITY LIGHT & POWER COMPANY.
    In Banc,
    July 24, 1918.
    1. PUBLIC SERVICE UTILITY: Contract Bate: Commission Bate. Where a public service corporation by written contract agreed to supply electric energy to a private manufacturing company for a designated length of time at designated rates, higher rates subsequently fixed by the State Public Service Commission by the adoption of a schedule of rates applicable for all service of the kind furnished by the public utility, if reasonable, supersede such contract rates, and the manufacturing company is not entitled to an injunction restraining the public service corporation from discontinuing the service upon a refusal to pay such higher rates.
    2. -: -: Police Power. The power to fix the price at which a public utility corporation is to furnish electricity to the public arises from the police power of the State, which under the Constitution cannot be abridged by contract between the corporation and private citizens; and where the Legislature has by statute designated the Public Service Commission as the instrumentality to exercise such rate-making power, and it In conformity with the statute fixes a schedule of reasonable rates for public service within the bounds of a city, its rates automatically supersede all contract rates coming in conflict with them.
    Appeal from Jackson Cirenit Court. — lion. Willard P. Hall, Judge.
    Aeeibmed.

      Rees Turpin for appellant.
    (1) The contract upon which this case turns was lawful and valid when made and was made before the Public Service Commission Act of 1913 was enacted. Bell v. Mnlholland, 90 Mo. App. 612; Sec. 3367, R. S. 1909; Moorshead v. United Railways Company, 203 Mo. 121; State ex rel. St. Joseph Water Company v. Eastin, 270 Mo. 193, 192 S. W. 1006; Door Company v. Fuelle, 215 Mo. 421; Johnson v. United Railways, 247 Mo., 326; State ex inf. v. Standard Oil Company, 218 Mo. 1; State ex rel. v.. Water, Light & Transit Co., 249 Mo. 649. (2) The Legislature did not intend that the Public Service Commission Act should disturb contracts made before its enactment. State ex rel. v. Railroad, 262 Mo. 720. '(3) It was beyond the power of the Legislature, by the enactment of the Public Service Commission Law or otherwise, to impair the obligation of. a contract lawfully made. State v. Hawthorn, 9 Mo. .389;' State-v. George Miller, 50 Mo.-129; State ex rel. v. Miller,. 66 Mo. 328; St. Vincent’s College v. Schaefer, 104 Mo. 261; State ex rel. v. Board of Trustees of Westminister College, 175 Mo. 52; State ex rel. v. Trustees of William Jewell College, 234 Mo. 299; Home Telephone Co. v. Sarooxie Light - & Telephone Co., 236 Mo. 114; Detroit v. Detroit United Ry. Co., 173 Mich. 314, 242 U. S. 238; Boswell v. Security Mutual Life Insurance Company, 193 N. Y. 465, 19 L. R. A. (N. S.) 946. (4) This court has said definitely that the Public-Service Commission Act does not impair the obligation of contracts made before its passage. State ex rel. v. Railroad, 262 Mo. 720; Public Service Commission y. Union Pacific Ry. Co., 197 S'. W. 39; Quinn v. American Bankers Assurance Company, 183 Mo. App. 8; Zachra v. Manufacturing Company, 179 Mo. App. 683; Sweeney v. Heap Company, 194 Mo. App. 140. (5) The contract is enforceable against the defendant. K. C. Southern Ry. Co. v. Guardian Trust Co., 240 U. S. 166; Northern Pacific Ry. Co. v. Boyd, 228 U. S. 482; Johnson v. United Rys. Co., 247 Mo. 360. (6) Plaintiff is entitled to injunctive relief. Sedalia Brewing Co. v. Sedalia Water Works Co., 34 Mo. App. 49; Jaceard Jewelry Co. v. O’Brien, 70 Mo. App. 432; Burke v. Olquott Water Co., 84 Vt. 121, 33 L. R. A. (N. S.) 1015; Gordon v. Mansfield, 84 Mo. App. 367; Overall v. Ruenzi, 67 Mo. 203; Western Union Telegraph Co. v. Guernsey & Scudder Electric Light Co., 46 Mo. App. 120; Albers v. Merchants’ Exchange, 39 Mo. App. 583; Wills v. Forester, 140 Mo. App. 321.

      John H. Lucas for respondent.
    (1) The bill states no ground of equity. R. S. 1909, sec. 2534; Burgess v. Kattelman, 41 Mo. 480; Hopkins v. Lovell, 47 Mo. 102; Sternes v. Franklin' Co., 48 Mo. 167; Carpenter v. St. Joseph, 263 Mo. 713; Primm v. White, 162 Mo. App. 605; School Dist. v. McFarland, 154 Mo. App. 419; Graden v. Parkville, 114 Mo. App. 533; Strother v. Cooperage Co., 116 Mo. App. 518; Victor Mining Co. v. Morning Star Min. Co., 150 Mo. App. 525. (2) The contract is against public policy, and void at common law. Mo. Constitution, art. 12, see. 5; Collyer on Public Service Companies, sec. 126, p. 274; lb., secs. 127 and 129, pp. 276 and 281; State ex rel. v. Ins. Co., 152 Mo. 1; Karnes v. Ins. Co., 144 Mo. 413; 2 Purdy Beach on Private Corporations, p. 1367, par. 609; lb., pp. 1287, 1370, 1438, 1474; Laws 1891, p. 186; R. S. 1909, chap. 98; R. S. 1909, sec. 10316; R. S. 1909, sec. 10319; 2 Wyman on Public Serv. Corp., pars. 1314, 1316, 1318; Plome Tel. Co. v. Coxey Tel. Co., 236 Mo. 114; Tranberger v. Railroad Co., 250 Mo. 55; Powell v. Railroad Co., 250 Mo. 462; State ex rel. v. Roach, 267 Mo. 315; State ex rel. v. Roach, 267 Mo. 314. (3) The contract is void under Commission Act. Atlantic Coast Line v. Riverside Mills, 219 U. _S. 186, 208 L. Ed. 167; Louisville & Nashville v. Mottley, 219 U. S. 467, 55 L. Ed. 297; Penny & Boyle Co. v. Los Angeles Gas & El. Co., L. R. A. 1915-C, p. 282; Pulitzer v. McNiehols, 172 Mo. App. 709; Rosenberger v. Express Co., 258 Mo. 97; Plarvest King Distillery v. Express Co., 192 Mo. 173; State ex rel. v. K. C. Gas Co., 245 Mo. 515; Public Service Com. Act, Laws 1913, secs. 68-69; Public Service Comm. v. Union Pacific, 197 S. W. 40. (4) The Public Service Commission Act controls alleged contracts made before its passage. State ex rel. Roach, supra.
   WILLIAMS, J.

The plaintiff seeks to enjoin the defendant from discontinuing the supply of electric energy to plaintiff’s manufacturing plant as provided under the' terms of ascertain contract entered into on the 6th day of September, 1912, by and between the plaintiff and defendant’s predecessor. Upon a trial had before the circuit court of Jackson County judgment went for defendant. Plaintiff duly appealed.

The facts necessary to an understanding of the issues involved are few and simple and may be summarized as follows:

On September 6, 1912, the predecessor of the defendant power company, a public service corporation located at Kansas City, Missouri, entered into a contract with the plaintiff corporation whereby, for a certain specified price and- during the' life of the contract, it agreed to supply electric energy for the operation of the plaintiff’s manufacturing plant located within the corporate limits of said city.

On April 17, 1917, the Public Service Commission, proceeding in conformity with the provisions of the Public Service Commission Act, after a valuation was made and full hearing had, made an order establishing a schedule of rates which the defendant company should be permitted to charge for electric energy at Kansas City, Missouri.

It is not necessary that the details of the contract rates nor of the rates established by the Commission be given (because the legality of the Commission rate is not involved upon this appeal), but it is sufficient for the purpose of this case to say that the cost to plaintiff for the - electric energy required to operate its plant was higher under the rates established by the Commission.

The defendant threatened to discontinue the service if the appellant longer refused to pay the rate which had then been placed on file with the Public Service Commission and which was afterwards established as the proper rate by the Commission.

The appellant relying upon the contract refused to pay the amount demanded and' instituted this suit.

While there are some minor propositions discussed in the'briefs there is one main question which will dispose of the case. We shall therefore confine our discussion to the one main question, viz.:

Did the order of the Public Service Commission fixing the rates which the defendant company could charge for electric energy at Kansas City, Missouri, supersede the rates fixed by the contract theretofore existing between the parties?

Under the recent holding in the cases of State ex rel. City of Sedalia v. Public Service Commission et al., 275 Mo. 201, and City of Fulton v. Public Service Commission, 275 Mo. 67, the above question must be answered in the affirmative.

In the Sedalia case supra it was held by Division One that the schedule of reasonable water rates fixed by the Public Service Commission superseded the rates fixed by contract between the municipal corporation and the public service corporation. It was there held (1) that the power to make rates for public service arises from the police power of the State; (2) that the instrumentality designated by statute to exercise such rate-making power is the Public - Service Commission; (3) that under the provision of Section 5 of Article 12 of the Constitution of Missouri the police power cannot be abridged by contract; (4) that therefore when the Public Service Commission fixes a schedule of reasonable rates for public service in conformity with the provisions of the Public Service Commission Act such rates automatically supersede all contract- rates coming in conflict therewith.

The above case was cited and approved by Court in Banc in the Fulton case supra.

The principle involved in the case at bar is the same as that involved in the two cases cited.

No valid reason can be stated why a rate contract entered into between a private manufacturing corporation. and a public service corporation (as is the situation here) would not (if permitted to stand) be just as much an abridgement of the rate-making power of the State as would a rate contract between a municipality and such public service corporation (as was the situation held in judgment in the cases above cited).

Appellant’s present contentions have been fully answered in the cases above cited. Further discussion is therefore unnecessary.

For the reasons stated in those.cases we hold that the contract rates involved in the case at bar must give way to the rates fixed by the Commission. .It therefore follows that the judgment should be affirmed. It is so ordered.

Walker, Faris, Blair and Woodson, JJ., concur; Bond, G. J., concurs in the result.


text:
    THE STATE ex rel. AUDRAIN COUNTY v. GEORGE E. HACKMANN, State Auditor.
    In Banc,
    July 24, 1918.
    1. CONSTITUTIONAL LAW: Hospital Act: Purpose. The Act of 1917 (Laws 1917, p. 145) authorizing counties to establish and maintain public hospitals, and to levy a tax and issue bonds therefor, has for its primary purpose, as shown by its terms, the providing for the construction of public county hospitals and the creation of a public debt for that purpose. The rate of taxes to be levied for the purpose of paying the debt was not the main purpose nor a vital element of the act.
    2. -: -: Rate to Pay Debt: Self-Enforcing. That part of the Constitution requiring a municipality, when creating a debt beyond the income and revenue of the current year, to “provide for the collection of an annual tax sufficient to pay interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof within twenty years,” is self-enforcing, and is effective without legislative action.
    3. -: -: -: Limited to Two Mills Tax. So much of the County Hospital Act of 1917 as undertook to fix a maximum rate of two mills on the dollar-valuation of property as the tax to be levied to pay the bonds was a work of supererogation, since the Constitution itself requires “an annual tax sufficient’.’ to pay the interest and principal of the debt within twenty years, which is as much a part of the act as if it had been written into it. If the rate of two mills on the dollar is sufficient then it is a valid rate; and if not sufficient, then the limitation to two mills is harmless, because the constitutional requirement proprio vigore was substituted for it.
    4. -: -: Limitation of Tax Bate: Separate From Best of .Act. Where some portions of a legislative act are invalid and, after they are separated from what is valid, a law in all respects complete and susceptible of constitutional enforcement is left, which the Legislature would have enacted had it known that the ex-scinded portions were invalid, the act will he upheld. It is apparent from the terms of the County Hospital Act of 1917 that the Legislature would have enacted it had it contained no provision limiting the rate of taxation to pay the bonds to two mills on the dollar; and disregarding all its provisions relating to the rate of taxation, since the Constitution itself supplies them, a valid and complete act remains.

      5. -: -: Anticipation of Eevenue. The County Hospital Act of 1917 was not enacted in pursuance of the powers or with reference to the objects specified in Section 11 of Article 10 of .the Constitution, and hence it is not invalid as an attempt to authorize the issuance of bonds in anticipation of collection of increased rate of taxation.
    Mandamus.
    Peremptory writ issued.

      R. D. Rogers and Charles é Rutherford of counsel for relator.
    (1) A county hospital is a public building, and, therefore, the erection and maintenance of a county hospital is a public, purpose. In re Board' of Commissioners v. Peter, 253 Mo. 352. (2) Every presumption in favor of the validity and constitutionality of the Act of April 9, 1917, will be indulged by the courts, and the act will not be held to be unconstitutional unless it so plainly violates some provision of the Constitution that there is no escape from .such conclusion. Board of Commissioners v. Peter, 253 Mo. 520. (3) Such a construction of a statute should be adopted as will save the statute and make it operative. State ex rel. v. Duncan, 265 Mo. 47. And as will give effect to the intent of the lawmakers. State ex rel. v. Duncan, 265 Mo. 26. (4) The main and essential purpose of the act is to authorize the different counties to proceed under the provisions of Section 12 of Article 10 of the Constitution in the incurring of indebtedness by the voting of bonds to provide funds for a public purpose, (a) This section requires the levy and collection of taxes sufficient in amount to retire such an indebtedness within twenty years. A provision in the Hospital Act for a tax for twenty years, indicates, therefore, the legislative intention that the bonds are to be retired within the time required by the Constitution for a bonded indebtedness. (b) It would be absurd to assert that the tax provisions of the act constitute the main features, the essentials, of the act; because the tax is for a period of twenty years only. And this conclusively shows an intention on the part of the Legislature that the tax should be for the retirement of an indebtedness in twenty years, as provided in the Constitution; and not for the support of the hospital, for that would mean a cessation of the tax, and an abandonment of the whole hospital project, at the end of that period, (c) The form of ballot prescribed by the act indicates that the main purpose and subject of the act has reference to the incurring of debt, (d) That part of the ballot referring to a tax may even be disregarded; because any form of ballot giving the voter full knowledge of the issue involved, viz, the incurring of debt, is sufficient. Dick v. Scarborough, 73 S. C. 150; State ex rel. v. Stangyer, 197 S. W.' (Mo.) 251; State ex inf. v. Clardy, 267 Mo. 384; Russell v. Croy, 164 Mo. 95. (5) Even assuming that certain portions of the Act of 1917 may appear to be invalid, this does not invalidate the whole act. Such invalid portions do not go to the essential features of the act. They may be elided, and a complete and workable statute will still remain, under the provisions of which the bond issue is valid. State ex rel. v. Gordon, 268 Mo. 713; Hislop v. Joplin, 250 Mo. 588; Home Telephone Co. v. Carthage, 235 Mo. 668. A part of a statute may be constitutional ’ and a part unconstitutional; in which events, if the part which is unconstitutional can be eliminated without destroying the law, then it will be declared valid. State ex inf. v. Duncan, 265 Mo. 46; State ex rel. v. Gordon, 236 Mo. 170; Shively v. Lank-ford, 174 Mo. 549; State ex rel. v. Field, 119 Mo. 612; State ex inf. v. Washburn, 167 Mo. 680. (6) Section 11 of Article 10 of the Constitution has no application. The essential purpose of the act, the incurring of indebtedness for the establishment of hospitals, is referable to Section 12 of Article 10 of the Constitution. (7) The provision of Section 12 of Article 10 of the Constitution requiring the levy of a tax to pay a debt incurred and interest thereon is self-executing. Evans v. McFarland, 186 Mo. 703; Black v. Early, 208 Mo. 281; State ex rel. v. Allen, 183 Mo. 292; 1 Dillon on Munie Corps. (5 Ed.), sec. 191, p. 342. (a) The tax provisions of the statute can add nothing to the Constitution; are mere surplusage; and may be disregarded, (b) No vote on the levy of a tax was necessary to make valid the bonds voted for a public hospital. Evans v. McFarland, 186 Mo. 726.

      Frank W. McAllister, Attorney-General, S. P. Howell, Assistant Attorney-General, Thomas J. Cole, of counsel for respondent.
    (1) It is the duty of respondent, as State Auditor, to determine whether there is authority of law for the issuance of the bonds; and if such exists, whether all the conditions of the statutes, applicable thereto, have been complied with in the particular issue presented for registration. Sec. 1275, B. S. 1909; State ex rel. Dexter v. Gordon, 251 Mo. 313, Thornburg v. School District, 175 Mo. 12; State ex reh Pike County v. Gordon, 268 Mo. 326. (2) The Act of April 9, 1917, is violative of and in conflict with the first proviso contained in Section 11 of Article 10 of the Constitution. Laws 1917, 145; State ex rel. v. Wilder, 200 Mo. 105; Haussler v. St. Louis, 205 Mo. 690. Section 11 of Article 10 of the Constitution restricts the amount of tax rate, and then' contains a proviso under the authority of which, upon meeting the conditions therein set out, and increased rate may be levied for the purpose designated, namely, the erection of public buildings; but it grants no authority to vote .such increased rates for the support and maintenance of such buildings. Black v. McGonigle, 103 Mo. 202; Barnard v. Knox Có., 105 Mo. 389; State ex rel. v. Columbia, 111 Mo. 379; Brooks v. Schultz, 178 Mo. 226. (3) The act in question is unconstitutional for the further reason that its terms specifically and directly violate and conflict with the provisions of Section 12 of Article 10 of the Constitution. Sec. 1, Laws 1917, p. 145; Black v. Early; 208 Mo. 312; State ex rel. v. Gordon, 217 Mo. 118; State ex rel. v. Allen, 183 Mo. 293; Evans v. McFarland, 186 Mo. 727; State ex rel. v. Walker, 193 Mo. 706. Whether or not a legislative enactment impinges upon a constitutional provision is to be determined, not by what has been done under it, but by what may under its authority be done. Sterrett v. Young, 82 Pac. 946; Board of Education v. Aldredge, 13 Okla, 205; Lumsden v. Milwaukee, 8 Wis. 485. (4) The said Hospital Act further violates the provisions of Section 11 of Article 10 of the Constitution, in that said section grants no authority for the issuance of bonds in anticipation of the collection of an increased rate of taxation beyond the rate allowed by said Section 11, although such increased rate may be authorized by two-thirds of the qualified voters of such county voting therefor. Secs. 1, 2, 4 and 6, Laws 1917, p. 145; Benton v. Scott, 168 Mo. 3’97; Lamar v. City of Lamar, 128 Mo. 216; Harris v. Bond Company, 244 Mo. 693.
   BOND, C. J.

I. This is an orginal proceeding, seeking our writ of mandamus to compel respondent, George E. Hackmann, as Auditor of the States ^ Missouri, to register Bond No. 1 of an issue of $75,000 of bonds of Audrain County. Respondent waived the issuance of an alternative writ of mandamus and the case was submitted to the court upon the petition which stands as and for the writ and the return made thereto. The undisputed facts are as follows:

In December, 1917,'a petition, signed by more than one hundred resident freeholders of Audrain County, more than fifty of whom were non-residents of the city of Mexico, was filed in the county court of said county, in which the intention to erect and maintain a public hospital in the city of Mexico was stated and asking that an annual tax be levied for its establishment and maintenance, the sum of $75,000 being the maximun amount proposed to be expended therefor. The petition further asked the court to submit the question to the qualified voters of Audrain County at a special election, duly called for that purpose upon proper notice to said voters, limiting the rate of the tax to be levied to one-half mill on the dollar for a period not longer -than twenty years, and also providing for the issue of .bonds to advance said project.

Said special election, after due notice, was held on April 5, 1918, and the question whether said tax of one-half mill on the dollar should be levied on the taxable property of said county for the erection of said public hospital, was duly submitted and carried by a two-thirds vote of the qualified voters. Following said election, the county court ordered' and directed that .certain negotiable coupon bonds of said county, to be known as “public hospital bonds,” be prepared, executed, and registered in the office of the State Auditor; that said bonds should bear the date of May 1, 1918, be seventy-five in number, $1000 each in denomination, and to mature serially $15,000 each year from 1923 to 1927, both inclusive, with interest at five per cent per annum, payable semi-annually.

The petition further states that afterwards, in compliance with said court order, “Public Hospital Bond No. One” of said Audrian County, maturing May 1, 1923, was duly executed and presented to respondent, George Hackmann, State Auditor, together with the proper registration fee, who refused and still refuses to register said bond.

In his return respondent admitted every allegation •of fact alleged in the petition and averred that there was passed by the 49th General Assembly of the State of Missouri an act (Laws 1917, page 145) to enable counties to establish and maintain public hospitals, levy a tax and issue bonds therefor, etc; that said act was approved April 9, 1917; that the bond relator seeks to have registered was authorized and executed in pursuance of a special election held under and by virtue of the provisions of said act; that respondent should not be required to register said bond because said act is in violation with the first proviso of Section 11 of Article 10 of the Constitution of Missouri which authorizes an increase of the rate of taxation for the purpose of erecting public buildings in counties when properly authorized, while the Act of 1917 purports to authorize the levy of an increased rate of taxation for the support and maintenance of public hospitals; that the Act of 1917 is also in violation of the second proviso of Section 12 of Article 10 of the Constitution in that, although said proviso makes it mandatory to provide for the collection of a tax sufficient to pay interest and provide a sinking fund for the retirement of the principal within twenty' years, yet the 1917 enactment limits the rato of taxation proposed not to exceed two mills on the dollar of property valuation; that the 1917 act is in violation of Section 11 of Article 10 of the Constitution in that it attempts to authorize the issuance of bonds in anticipation of collection of increased rate of taxation, which is not authorized by and would conflict with said section of the Constitution.

II. A fair consideration of the terms and purposes of the act under review demonstrates that the Legislature intended the primary purpose of providing for the construction of public county hospitals and the creation of a public debt for that purpose. This design is manifested not only in the title to the act, but in each of the succeeding sections and is inescapable when it is read and interpreted as a totality. [Laws 1917, page 145 et seq.] In considering the particular sections and provisions of the act, the paramount object of the Legislature to grant to the counties of the State the right to “establish a public hospital” and to incur an adequate indebtedness to carry out that purpose, must be constantly borne in mind. When this is done, it becomes at once apparent that the Legislature framed its enactment under the authority of that provision of the Constitution restricting the power of counties and other sub-divisions of the State from becoming indebted beyond the income and revenue of the current year “without the assent of two-thirds of the voters thereof voting at an election to he held for that purpose; . . . and provided further, that any county, . . . incurring any indebtedness requiring the assent of the voters as aforesaid, shall, before or at the time of doing so, provide for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and aiso to constitute a sinking fund for the payment of the principal thereof, within twenty years from the time of contracting the same.” [Constitution of 1875, Art. 10, Sec. 12.]

It is the established law in this State, that the clause above quoted relating to a provision for the payment of the interest and principal of such indebtedness is a self-enforcing edict of the Constitution not requiring for its effectiveness any - legislative action whatever. [Evans v. McFarland, 186 Mo. 1. c. 727; Black v. Early, 208 Mo. 281; State ex rel. v. Allen, 183 Mo. 1. c. 292; Dillon On Municipal Corporations (5 Ed.), sec. 191, 342; East St. Louis v. Amy, 120 U. S. 600.] In the latter case, the doctrine governing such a constitutional provision, is thus expressed:

“This provision'for the tax was written'by the Constitution into every law passed thereafter by the Legislature allowing a debt to be incurred; and, in our opinion, it took the place in existing laws of all provisions for taxation to pay debts thereafter incurred under old .authority which were inconsistent with its requirements. It was made by the people a part of the fundamental law of the State that every debt incurred thereafter by a municipal corporation, under the authority of law, should carry with it the constitutional obligation of the municipality to levy and collect all the necessary taxes required for its payment.”

That the constitutional provision (Sec.' 12, Art. 10) under which the act under review was framed, is the one which specifically provides for the creation of county indebtedness beyond its annual income and revenue for any year, was directly adjudged in a case where its scope and purpose were distinguished from that of Section 11 of Article 10 of the Constitution. [Lamar v. City of Lamar, 128 Mo. 1. c. 216.] It necessarily follows, that so much of the act under review, as undertook to fix a maximum rate of two mills for the taxation therein prescribed was a work of supererogation, since the constitutional requirement that the county should provide an “annual tax sufficient” to pay the interest and principal of indebtedness was as‘much a part of the act under review as if it had been set out therein in so many words. If the specfic limitation of two mills on the dollar, contained in the act, is “sufficient,” then it would be a valid rate to be fixed by the county. If not, it was a harmless provision since the Constitution proprio vigore was substituted therefor.

We therefore overrule the contention of respondent that the insertion of a fixed rate in the legislative act, violated any provision of the Constitution of this State.

III. It also necessarily follows, that the inclusion within the act under review of a provision limiting the rate of taxation to two mills on the dollar, was not an interdependent portion of the entire act providing for the establishment of a public hospital and the incurring of an indebtedness to that end, and, hence, if it should turn out that a higher rate of taxation is necessary to accomplish the objects and purposes of the act, that would constitute no valid reason why ’a mistake on the. part of the Legislature, as to the proper rate of taxation, or proper means of enforcing and carrying out their purpose to provide for public hospitals in the counties of the State, should be held to destroy an entire act which is otherwise susceptible of being effectuated under the substitutional clause of the Constitution. [State ex rel. v. Taylor, 224 Mo. 1. c. 474.]

The test of the right to uphold a law, some portions of which may be invalid, is whether or not in so doing, after separating that which is invalid, a law in all respects complete and susceptible of constitutional enforcement is left, which the Legislature would have enacted if it had known that the exscinded portions were invalid. [State ex inf. v. Duncan, 265 Mo. 1. c. 45.] There is no room for doubt in the present case, that the Legislature, in the exercise of the power devolved upon it under Section. 12 of Article 10 of the Constitution, would have enacted a law for incurring an indebtedness to carry out its design of enabling counties of the State to build and maintain public-hospitals, irrespective as to the sufficiency of two mills on the dollar to furnish sufficient revenue for the indebtedness thereby incurred. And it would necessarily thwart this purpose on the part of the law-making body to hold, as insisted by respondent, that the act in question would not have been framed except for the purpose of limiting the rate of taxation to the amount therein prescribed.

Our conclusion is that, disregarding any and all provisions in the act in review relating to the limit of taxation, an independent enactment, valid and complete, remains, the means of enforcing which was completed by the Legislature itself.

IY. Prom what has been said, we are unable to concur in the view that the act in question is in contravention of Section 11 of Article 10 of the Constitution of the State. It was not enacted by the Legislature in pursuance of the powers or with reference to the objects specified in that section, as has been shown. Our conelusion is that the writ in this case should be made peremptory.

It is so ordered.

All concur except Faris, Jabsent.