author: WALKER, J.

text:
    In Re MISSISSIPPI & FOX RIVER DRAINAGE DISTRICT; JOHN BUSCHLING et al., Petitioners, v. JOHN ACKLEY et al., Objectors, Appellants.
    In Banc,
    February 24, 1917.
    1. DRAINAGE DISTRICT: Municipal Corporation. A drainage district is a municipal corporation, and must be provisionally incorporated as such before any step' can be taken looking to the drainage of land embraced therein.
    2. -: Appeal. The right of appeal from a decree incorporating any municipal corporation is limited.
    3. -: Property Rights Affected by Incorporation. That a person or his property has been included in a drainage district in no manner affects his rights, provided his property has not been benefited or damaged.

      4. -: Right to Appeal: For What Things Authorized, Notwithstanding the statute (Laws 1913, sec. 116, p. 241) says that “any person, may appeal from the judgment of the court” in a drainage district case, the subsequent words of the statute limit the inquiry of the appellate court (1) to the compensation allowed for property taken and (2) to the damages allowed for property prejudicially affected by the improvement. It is the taking or damaging of property, and not the incorporation of the district, that affects the owner’s rights and authorizes his appeal.
    5. -: -: Incorporation. Objectors are not entitled to an appeal from the judgment of the circuit court incorporating a drainage district, if the court has jurisdiction of the subject-matter.
    6. -: -: -: Raised in Suit on Tax Bill. Whether a drainage district has been legally incorporated or not can be raised in a suit on the tax bills.
    7. -: -: Incorporated for Unauthorized Purpose. There is a wide difference between a drainage district and a levee district; and while the question of whether a district organized as a drainage district was in fact a levee district may be properly raised on an appeal from a decree incorporating it, since lack of jurisdiction of the subject-matter may be shown in any suit involving it, yet the better practice is to raise the question of legality of incorporation in the suit on the tax bills. [Distinguishing Birmingham. Drainage District v. Milwaukee Ry, Co., 266 Mo. 60, and Elsberry Drainage District v. Harris, 267 Mo. 139.]
    8. -: -: General Statute Inapplicable. The general statute governing appeals does not apply to a drainage district case. The proceeding in such case is purely statutory, and there can be no appeal unless the drainage act, which is a complete code unto itself, authorizes it.
    9. --: -: Why Appeal from Judgment of Incorporation is Not Allowed. The decree incorporating a drainage district is preliminary, informal, tentative and conditional and not a final decree adjudicating any one’s rights from which an appeal will lie.
    Appeal from Clark Circuit Court. — Ron. N. M. Pettingill, Judge.
    Appeal dismissed.

      E. R. McKee and Boyd & McKinley for appellants.
    (1) Respondents’ motion to dismiss this appeal should he overruled, as an appeal from a decree incorporating a drainage district is authorized and has been recognized as a proper procedure for the purpose of having.the action of the 'circuit court incorporating a drainage district reviewed, (a) The circuit court is given original and exclusive jurisdiction of the incorporation of a drainage district such as that sought to be incorporated by respondents. Laws 1913, sec. 3, pp. 234, 235; Sec. 3956, R. S. 1909. Any parts to a civil suit has a right to appeal in every cause, unless there is'a constitutional prohibition against the appeal. Sec. 2038, R. S. 1909. Sec. 36, Laws 1913, p. 253, appears to indicate that there is no limitation or restriction upon the right to take an appeal from any action of the circuit court had under the act. Sec. 1927, R. S. 3.909, authorizes a change of venue in a civil suit and in State ex rel. v. Riley, 203 Mo. 175, 12 L. R. A. (N. S.) 900, it was expressly decided that a drainage proceeding was a civil suit within the meaning of the above statute, (b) Statutes pertaining to appellate procedure are entitled to a liberal construction. Stid v. Railroad, 211 Mo. -411. A final judgment is- one where the court’s jurisdiction over the matter in question before the court is exhausted. State ex rel. v. Bland, 189 Mo. 216. The right of appeal not being prohibited by the Constitution or by the drainage act appellants may appeal under the general provision that there is an appeal from any decision of the circuit court with reference to a civil suit. Sec. 2038, R. S. 1909; Sec. 36, Laws 1913, p. 253; Weston v. Charleston, 2 Peters, 449; Hockemeyer v. Thomuson, 150 Ind. 176; Crune v. Wilson, 104 Ind. 543; Kings Lake Drainage District v. Jamison, 176 Mo. 564; Drainage District v. Yoltmer, 256 Mo. 152; Birmingham Drainage District v. Chicago, M. & St. P. -Ry. Co. 178 S. W. 893; Squaw Creek Drainage District v. Turney, 235 Mo. 80; Elsberry District v. Harris, 184 S. W. 89. (e) The Circuit Court Drainage Act of March 24, 193.3, is not a special statute, but is a part of general legislation on the question of drainage and has connection with other similar statutes and can trace its origin to an act in 1879. It was passed with a view to the harmonious developmcnt of the law on this question and to making it a part of the general laws of the State. Birmingham District v. Railroad,-178 S. W. 895; State v. Taylor, 224 Mo. 393. The decree of incorporation of a drainage district is a final determination by the court on that question. Big Lake District v. Rolwing, 178 S. ~W. 112.

      Charles Hiller, John M. Dawson and T. L. Montgomery for respondents.
    The decree incorporating the district is a purely experimental proceeding, for the purpose of ascertaining if a drainage district can be formed under the supervision of the court to be thereafter determined in its order. It is not a final decree or judgment from Which an appeal lies. The.drainage laws, a special code of procedure, make no provision for this appeal. The motion to dismiss should be sustained, (a) The drainage act is a code unto itself, every step is specifically pointed- out and the procedure designated, and the act is to be liberally construed in carrying out this legislative intent and purpose. Secs. 4, 16, 37 and 62, Laws 1913, p. 232; State ex rel. v. Bates, 235 Mo. 293; State ex rel. v. Bugg, 224 Mo. 554. (b) It was not the legislative intent to allow an appeal at this stage in the procedure. There are no inherent rights of individuals involved in remedial procedure and no constitutional provision, either State or Federal, is violated in denying an appeal. State ex rel. v. Taylor, 224 Mo. 393; St. Louis v. Calhoun, 222 Mo. 44; Clark v. Kansas City Railway Co., 219 Mo. 524. (c) There is no obligation imposed by bringing the individual into the district; if his property is not benefited under the law his rights are in no way affected under the Dráinage Act. Land & Live Stock Co. v. Miller, 170 Mo. 256; Drainage District v. Railroad, 236 Mo. 107; Page •&. Jones on Taxation by Assessment, see. 743; Spencer v. Merchant, 125 U. S. 345; Morrison v. Morey, 146 Mo. 563; Hager v. Reclamation District, 111 U. S. 701; Irrigation District v. Bradley, 164 U. S. 112; C. B. & Q. Ry. Co. v. Drainage Commrs., 200 U. S. 56; State ex rel. v. County Commrs., 87 Minn. 336; Irrigation District v. Williams, 76 Cal. 367. (d) The drainage act being purely a statutory proceeding both as to the tribunal and the character of the proceedings was unknown to the common law and is special and constitutional and the provisions of the code of civil procedure are not applicable thereto. State ex rel y. Spencer, 166 Mo. 285; State ex rel. v. Hough, 193 Mo. 615; Terminal Ry. & B. Co. v. Atchison, 137 Mo. 218; Rothman v. Railroad, 113 Mo. 143; Drainage District v. Campbell, 154 Mo. 151; Anderson v. Pemberton, 89 Mo. 64; Railroad v. Townsite Co., 103 Mo. 457; State ex rel. v. Slover, 134 Mo. 15. (e) The district is not a corporation within the meaning of the Constitution, cannot demand a jury, and the issues are to be tried by the court in a summary manner without delay. Kansas City v. Vineyard, 128 Mo. 78; Sec. 4, Laws 1913, p. 235; ■ Drainage District v. Tourney, 235 Mo. 80, 1. c. 95; State ex rel. v. Eicher, 178 S. W. 173. (f) The only appeal authorized by the act is found in Section 16, p. 241, Laws 1913, and what questions alone to be determined are set' forth. ' The right of appeal is by the act limited. The Legislature has a right to so limit it or to dispense with any appeal at any stage of the proceedings, leaving any judgment rendered liable to be attacked either directly for fraud or collaterally on the ground that it is void on its face. Drainage Dist. v. Railroad, 216 Mo. 715. This appeal does not come within the only statute which can authorize it and the motion to dismiss should be sustained. Sec. 16, Laws 1913, p. 241; Tie Co. v. Drainage District, 226 Mo. 441; Sutherland on Statutory Construction, sec. 234, p. 309.
   WALKER, J.

— This is an appeal from a judgment of the circuit court of Clark County incorporating the Mississippi & Pox River Drainage District in said county.

The controversy arose out of a misunderstanding between the landowners and petitioners asking for the incorporation; some contended that they signed the petition under a misapprehension of the facts, others changed their minds and desired to withdraw their names from the petition and that they he included in an adjoining district, and so informed the court; the remainder were content with the proposed district. All of these facts (the details of which are immaterial) finally led to an order of the court .dismissing the cause as to certain objectors, and thereupon the remaining petitioners filed an amended petition asking for the incorporation of the district now in controversy.

The district as described in the amended petition did not meet with the concurrence of all the landowners included, and excluded therefrom, and consequently a new attack was made thereon by certain property owners named therein.

All of their objections were by the court overruled, and a decree was entered incorporating the last proposed district; from that action the objecting landowners appealed to this court.

Upon the cause reaching this court counsel for respondents filed a motion to dismiss the appeal 'for the reasons:

First: “That the decree appealed from is not a final decree, judgment or order of the circuit court of Clark County, Missouri.”

Second: “That the decree appealed from is not a decree, judgment or order on which an appeal will lie to this court.”

Third: “That no appeal is authorized by lav/ in this cause to this court.”

While there are some minor questions presented by the record, they are moré of a personal than a legal character; the major proposition involved herein is one of law pure and simple, and that is, does an appeal, under the statutes of this State, lie from a decree of the circuit court incorporating a drainage district?

Counsel for appellants assert the affirmative, counsel for respondent the negative. Counsel for respondents rely upon section 16, page 241, Laws 1913, in support of their contention. It should be borne in mind that a drainage district is, by express statute, a municipal corporation and must be provisionally incorporated as such before any step can be taken looking to tbe drainage of tbe land embraced therein. The section mentioned reads as follows:

“Sec. 16. The drainage district or any owner of land or other property in said district, may file exceptions to said report or to any assessment for either benefits or damages, within ten days after the last day of publication of the notice provided for in the preceding section. All exceptions shall be heard by the court and determined in a summary manner so as to carry out liberally the purposes and needs of the district, and if it appears to the satisfaction of the court, after having heard and determined all of said exceptions, that the estimated cost of constructing the improvement contemplated in the ‘plan for reclamation’ is less than the benefits assessed against the land and other property in said district, then the court shall approve, and confirm said commissioners’ report as so modified and amended. The court shall adjudge and apportion the costs incurred by the .exceptions filed and shall condemn any land or other property, within or without the boundary lines of the district, that is shown by the report of the commissioners to be needed for rights of way, holding basins and other works, or that may be needed for material to be used in constructing said works, following, as nearly as possible, the procedure that is now provided for by law for the appropriation of land and other property taken for telegraph, telephone and railroad rights of way. The clerk of said circuit. court shall transmit a certified copy of the court decree and copy of the commissioners’ report, as confirmed or amended by the court, to the secretary of the board of supervisors of the district, who shall make and transmit a certified copy of the said decree and that part of the said report affecting land in each county to the recorder of each county having lands in the district, or affected by the said report, where the same shall become a permanent record- and each such recorder shall receive a fee of one dollar for receiving, filing and preserving the same. Any person may 'appeal from the judgment of the court, and upon such appeal there may. be determined either or both of the following questions: First, whether just compensation has been allowed for property appropriated; and, second, whether proper damages have been allotved for property prejudicially affected by the improvements.” [The italics are our.]

The peculiar wording of the first clause of the itali-. cized portion of the statute should he noted, viz: “Any person may appeal from the judgment of the court.” This language is general in its terms, and if it were not limited by what follows, an appeal would bring up all questions involved in the case; but the remainder of the section limits the authority of this court to determine either or both of the questions above italicized.

This is no other statutory provision for an appeal in drainage cases organized under the circuit court article. This is not unusual, because in most if not in all cases arising out of municipal legislation the right of appeal is more .or less limited; especially is this true regarding an appeal from an act or decree incorporating a municipal corporation. In fact, it would be unusual and strange if an appeal from such a decree should be authorized. If it be true that an appeal lies from a decree incorporating a drainage district, or any other municipal corporation, then the question would naturally arise, who should or may take it, and when? This and other courts of this country have repeatedly held that the mere fact that a person or his property has been included in a drainage district, in no manner affects his rights, provided his property has not been benefited or damaged. [Mound City Land & Stock Co. v. Miller, 170 Mo. 240, l. c. 256; Little River Drainage District v. Railroad, 236 Mo. l. c. 107; Ross v. Board of Supervisors, 1 L. R. A. (N. S.) l. c. 437; Spencer v. Merchant, 125 U. S. 345; Morrison v. Morey, 146 Mo. l. c. 563; Hagar v. Reclamation District, 111 U. S. 701; Fallbrook Irrigation District v. Bradley, 164 U. S. 112; C. B. & Q. Ry. Co. v. Drainage Commrs., 200 U. S. 561; State ex rel. v. Board of County Commrs., 87 Minn. l. c. 336; Irrigation District v. Williams, 76 Cal. l. c. 367.]

There is no pretense that the decree of incorporation affects appellants’ property rights, directly or indirectly, hut upon the contrary the Act of 1913, before mentioned, expressly provides that after the district has been incorporated, that is tentatively, and not before, a board of directors shall be elected, etc., and they shall appoint commissioners to assess benefits and damages that may be sustained by the property situate in said district on account of said improvements. [Secs. 5 to 14, Laws 1913, pp. 235-240.]

Sections 15 and 16 of the. same act provide for notice to the property owners of said assessments, and .authorize them to file exceptions thereto to be heard by the court in a summary manner, etc., and to render judgment modifying, confirming or rejecting the report of the commissioners assessing benefits and damages as the evidence may warrant, and from that judgment an appeal may be taken, but the authority of this court is limited, as before shown, first, to' an inquiry as to compensation allowed for property taken, and, second, as to the damages allowed for property'prejudicially affected by the improvements.

From this it is evident that it is the taking or damaging of the property, and not the incorporation of the district, that affects the owner’s rights and gives him the right to an appeal. This identical question came before this court in the case of Drainage District No. 4 v. Railroad, 216 Mo. 709. Judge Valliant (p. 715). speaking for the court, said:

“A right of appeal is one given by statute and in order that a party may avail.himself of the right conferred he must conform to the requirements of the enabling statute. The General Assembly might, if it had seen fit to do so, have made the judgment of the county court in such case final and allowed no appeal, in which event the judgment could be attacked only either directly for fraud, or collaterally on the ground that it was void on its face. In this kind of proceeding the statute gives an appeal, but it prescribes the method to be pursued in taking the appeal and limits the questions that may be litigated in the appellate court. The General. Assembly has been careful to express the limitations on this right, and also on the scope of the litigation after the appeal is taken, saying who may appeal, when and how the appeal may be taken, and what questions may be heard by the circuit court when the cause reaches that court. When we notice the changes or amendments .that have been made in the statutes on these points we see that the General Assembly has acted with deliberation.
“Section 8292, as it appears in Revised Statutes 1899, says: ‘Any person or corporation party to proceedings may, ... file exceptions to the apportionment, or to any claim for compensation or damages at any time before the day set for the hearing of said report by the court.’ It then provides that the court may hear the evidence and pass judgment on the exceptions. Then it says: ‘Any person or corporation may appeal from the order of the court, and upon such appeal may determine either of the following questions: First, whether such improvement will be conducive to public health, convenience or welfare, or the location of any part changed; second, whether the route is practicable; third, whether compensation has been allowed for property appropriated; fourth, whether proper damages have been allowed for property affected by the improvements. The appellant shall pray an appeal and file a motion, in writing, specifying therein the matters appealed from, which-motion shall be filed and recorded.’ We will note that it is there specified who may file exceptions, to what the exceptions may relate, who may appeal from the order sustaining or overruling the exceptions, how the appeal may be taken and what questions may be heard on the appeal. In 1903 that section was amended so as to reduce the questions that might be litigated on appeal from four to two: ‘First, whether compensation has been allowed for property appropriated; second, whether proper damages have been allowed for property affected by the improvements.’ The amendment also provided that the appeal should not stay the proceedings in the county court or delay the work, but the proceeding subsequent to taking the appeal should affect only ‘the rights and interests of the property located in such drainage district owned by appellant or appellants.’ [Laws 1903, p. 235.]
“In 1905 the section was again amended, so that instead of the persons or corporations who might file exceptions and who might appeal from the ruling of .the court thereon as specified in the original section and repeated in the amendment of 1903, it was said: ‘Any person whose lands are affected by the proposed improvement’ may file exceptions, etc., and appeal from the ruling of the county court thereon. The Act of 1905 corrects also the awkward wording of the last sentence of the amendment of 1903, so as to read: ‘And any subsequent proceedings in the circuit court shall affect only the rights and interest of the appellant in property located in such drainage district. ’ [Laws 1905, p. 185.] This section 8292, Revised Statutes 1899, rewritten so as to embody the amendments above noted, appears as section 8292 in Mo. Ann. Stats., vol. 4, pages 3922-3, and as it there appears is now the. law.
“Thus we see that the General Assembly has with great particularity limited the subjects to which the exceptions may relate, has limited the right of appeal to the ruling of the court- on those exceptions and limited the questions to he considered by the circuit court on the appeal.”

The only difference between that case and this one is that the statutes there under consideration were the acts of 1903 and 1905 and contained in the article applicable to the incorporation of such districts in the county court, instead of the circuit court, as here, and the grounds of appeal there were four in number instead of two, as in the Act of 1913. By reading the various acts it will be seen that the Legislature, by the last, limited the grounds of appeal from four in the former acts to two in the latter. This shows that it was the policy and purpose of the Legislature to limit the right of appeal in drainage cases.

The same question again came before this court in the case of the Western Tie & Timber Co. v. Naylor Drainage District, 226 Mo. 420. Judge Burgess (p. 440), speaking for the court, said:

‘ ‘ The first question. presented by this record for determination is, will an appeal lie from the judgment of the county court incorporating a drainage district under article 4 of chapter 122, Revised Statutes 1899, to the circuit court?
“This same question was presented to this court in the case of Drainage District v. Railroad, 216 Mo. 709. That was a proceeding instituted, under the same article, in the county court of Chariton County, for the purpose of organizing a similar district.” After quoting with approval the limitations on the. right of appeal in cases of this character as held in Drainage District v. Railroad, supra, Judge Burgess says:
“After the Acts of 1903 and 1905, mentioned in said opinion, became operative, they became applicable to all subsequent proceedings had in the case at bar. [State ex rel. v. Taylor, 224 Mo. 393.]
“We are, therefore, of the opinion that appellant was entitled to an appeal from the order of the county court of Ripley County, organizing said drainage district, etc.; hut by the express terms of said acts, the authority and jurisdiction of the circuit court was limited to the trial and determination of ‘either one or both of the following questions:
“ ‘First, whether compensation has been allowed for property appropriated; and, second, whether proper damages have been allowed for property prejudicially affected by the improvements.’ ”

These are the only cases that have dealt with the question of the right of appeal since the statutes upon that subject have been amended.

The main reliance of counsel for appellants is upon the ease of King’s Lake Drainage & Levee District v. Jamison, 176 Mo. 557. It does not support the contention of counsel. The statute there under consideration, Sec. 8331, R. S. 1899, expressly provided for an unlimited appeal, as follows:

“If the finding of the court he in favor of the validity of the proceedings, the court, after the report shall have been modified to conform to the findings, or, if there be no remonstrance, the court shall confirm the same, and the order of confirmation shall be final and conclusive, and the proposed work be established and authorized and the proposed assessments approved, subject to the right of appeal to the Supreme Court, as in other actions.”

The various amendments of the statute, after the decision in the King’s Lake Drainage District case, supra, was rendered, limiting the right of appeal to specifically designated questions therein stated, is quite significant of the'fact that the Legislature intended to and did take away the right of appeal from the decree incorporating the district, as well as from all other questions not specifically provided for in the act.

The next case relied upon by counsel for appellants is that of In re Drainage District v. Voltmer, 256 Mo. 152. While there is language in that opinion which lends color to counsel’s contention, an examination shows that ■ the appeal was taken from the judgment confirming the report of the commission assessing damages and benefits to property affected by the proposed improvements, and not from the decree incorporating the drainage district. In fact, the district had long before been incorporated by a decree of the circuit court of Andrew County, where the cause had been transferred on change of venue, and after having been certified back to the circuit .court of Holt County, as provided by law, the proceedings complained of were had in the latter court, and had nothing to do with the incorporation of the district in the Andrew County Circuit Court. In fact, the question of the incorporation of the district was not mentioned except as above indicated. Therefore, that case lends appellants no assistance.

The next case cited by counsel for appellants is that of Birmingham Drainage District v. Chicago, Milwaukee & St. Paul Ry Co., 266 Mo. 60. The ruling therein is not in point. . The real question there was whether or not the district was in fact incorporated for the purposes authorized by the Act of March 24, 1913, namely, to drain swamp and overflowed lands, or to construct an extensive levee system along the Missouri River in front of the proposed district, and only incidentally, if at all, drain the lands included therein. In other words, the contention was that the statute enacted for one purpose was applied for .a wholly different purpose from that designated by the Legislature, and therefore the corporation was not in fact a drainage district, but a levee district, and therefore acquired no jurisdiction over the lands embraced therein.

That question could have been and was properly disposed of on appeal; but it also could have been raised in a suit on the tax-bills, for lack of jurisdiction may bé shown in any "suit involving that question; and the better practice would be to raise the question by answer in a suit on such bills. The question involved was not so much as to the validity of the decree of incorporation, as it was to the application of the act to accomplish a purpose foreign to the design of the Legislature. Under those facts, while the validity of the decree of incorporation was involved, it was only incidental to the larger questions, first, is there a difference, within the meaning of said act, between a drainage system and a levee system, and, second, if so, did the act authorize the construction of a levee system instead of a drainage system?

Attending the first: In a sense there is a wide difference between the two; a drainage system is designed primarily to drain or draw water from swampy and overflowed lands, and secondarily to prevent water from accumulating thereon by the overflow from streams, backwater, etc.; while a levee system, like a drainage system, may primarily be intended to prevent water from accumulating upon such lands by overflow and backwater, its purpose secondarily may be to collect water -upon such lands and hold the same for commercial or other purposes; most of the latter purposes are usually accomplished by the construction of a dam, but not always so, especially when the purpose is to store large bodies of water for irrigating purposes; in such cases a system of levees, or levees and ditches are resorted to.

It was in the latter sense that the defendant in the Birmingham Drainage District case insisted the district was being constructed, and not all for drainage purposes, within the meaning of the act. That clearly involved a jurisdictional question of the district over the land.

While this court discussed certain other questions presented in that ease, they were minor ones and only incidental to the main question presented and decided, namely, that it was in fact a drainage district and not a levee district. Moreover, the question here presented was not made or discussed by court or counsel in that case. That case has but little relevancy to the question here under consideration, and that only in an incidental manner.

Elsberry Drainage District v. Harris, 267 Mo. 139, is similar to that of the Birmingham Drainage District case. The facts in that case were as follows: the plaintiff undertook to extend the boundaries of its district by adding the lands of the defendants. The evidence showed that the real purpose of the proposed extension was not to drain the objecting defendants’ lands; that the plan would not necessarily effect this result; that the district, as originally constructed, only included lands south of a certain creek, and the extension was to include certain lands lying north thereof, a part of which belonged to the objectors, the appellants; that the lands to be actually drained were to be by a ditch to be constructed under said creek and extended to the district pumping plant; and that the real purpose of the entire scheme was to enable other individuals owning land north of said creek to drain their lands and to reap the profit to be realized from their reclamation at the expense of the objectors. In other words, the objectors’ lands were not included in said proposed extension for drainage purposes, but for the purpose of acquiring lands upon which to construct levees and drains to drain the lands of others, and that, too, at the expense of the objectors.

Clearly that was not the purpose of the Legislature in enacting the statute. Under that view of the ease, the district had no legal authority or power to include the objectors’ lands within its boundaries for taxable purposes. In other words, it acquired no jurisdiction over said lands; and this court in legal effect properly so held in the determination of that case. The incorporation of the district in that case was not questioned, as in the case at bar; only the right to tax objectors’ lands was involved. So far as the incorporation was concerned it was held to be valid. While it is true the objectors could have made the same defense in a suit on the tax-bills, yet they were not' compelled to do so, for the elementary reason that the lack of jurisdiction over the subject-matter may be shown at any time in any suit or proceeding involving that question, even in a collateral proceeding.

It was not the design of the Legislature in limiting the right of appeal in drainage cases to deny to one affected thereby the right to question the jurisdiction of the district over the subject-matter thereof; and if that were the intention then clearly the statute to that extent, at least, would have been unconstitutional. This -is expressly provided for by section 20 of article 2 of the Constitution of 1875, as follows:

. “That no private property can be taken for private use, with or without compensation, unless by the consent of the owner, except for private ways of necessity, and except for drains and ditches across the lands of others for agricultural and sanitary, purposes, in such manner as may be prescribed by law; and that whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and as such judicially determined, without regard to any legislative assertion that the use is public.”

In the Elsberry as in the Birmingham • case, the question here presented was not presented, discussed or decided except as previously stated. That case, therefore, is not applicable to the case at bar. The other two cases cited by counsel for appellants arose under acts antedating the act of 1913 and are therefore inapplicable.

Counsel for appellants also insist that under section 2038, Eevised Statutes 1909, the general statute governing appeals applies in this case, and cite in support thereof State ex rel. v. Riley, 203 Mo. 175. Counsel misinterpret the ruling in that case. There we use this language: “We are of the opinion that in drainage cases the modes of procedure and the rules of practice prescribed by our civil code may be used to supply omissions in the drainage statutes” — clearly indicating that the general statutes could not displace statutes especially applicable to drainage cases.

The drainage act being purely a statutory proceeding, both as to the tribunal and the character of the proceedings, was unknown to the common law and the act is special and constitutional and the provisions of the code of civil procedure are not applicable thereto. In its present amended form it is a code unto itself. It is in all respects as to its provisions like the election law, forcihle-entry-and-detainer law, road law and eminent-domain statutes, and should he strictly followed and so construed, independent of the civil code. This is especially true on appeal. [State ex rel. Hancock v. Spencer, 166 Mo. l. c. 285; State ex rel. Wells v. Hough, 193 Mo. 615; Leavenworth Terminal Ry. & B. Co. v. Atchison, 137 Mo. 218; Rothan v. Railway, 113 Mo. l. c. 143; Nishnabotna Dr. Dist. v. Campbell, 154 Mo. 151; Anderson v. Pemberton, 89 Mo. 64; Railroad v. Randolph Townsite Co., 103 Mo. l. c. 457; State ex rel. Keshlear v. Slover, 134 Mo. l. c. 15.]

The drainage act is a separate and distinct statute. Since the various amendments thereto it is a complete code unto itself. Not being placed in the statute under the civil code of procedure, it is independent of it and is not governed by it. Consequently the procedure thereunder is not as in an ordinary civil case within the meaning of the code of civil procedure and is not governed by it. Section 2038, Revised Statutes 1909, has, therefore, no application.

Section 4 of the act provides that the objections filed be limited to' denial of the statements in the articles of association and be heard by the court in a summary manner without delay. Are they true or false? No other question can be raised. There is but little to try. A reason why no appeal is provided for in the act is evident from the fact that this proceeding to incorporate is preliminary, informal, tentative and conditional and not a final decree adjudicating any one’s rights from which an appeal lies. The incorporation of the district simply organizes an entity with which to further proceed to effect reclamation to be hereafter accomplished, if possible, in orderly and well defined procedure. [Drainage District v. Railroad, 216 Mo. 709; Carder v. Fabius Riv. Dr. Dist. No. 3, 262 Mo. 542; Squaw Creek Dr. Dist. v. Turney, 235 Mo. l. c. 95; State ex rel. Roberts v. Eicher, 178 S. W. l. c. 173.]

From all of which it follows that the motion to dismiss the appeal should be sustained, and it is so ordered.

All concur except Williams, J., not sitting.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    THE STATE ex inf. JOHN T. BARKER, Attorney-General, v. EDMOND KOELN.
    In Banc,
    February 24, 1917.
    1. COLLECTOR OF ST. LOUIS: Elected, in April, 1913. No one could be or was legally elected to tbe office of Collector of tbe Revenue for' the city of St. Louis at tbe April election held in 1913. Said office is a county office, and tbe statute (Sec. 11432, R. S. 1909; Laws 1905, p. 272) requires the Collector to be elected at tbe general election held in November, 1906, and every four years thereafter.

      2. -: Charter Provisions: Special Laws. It was not intended that the provision of the Constitution of 1875, which provided that the charter to be framed for the city of St. Louis “shall supersede all special laws relating to St. Louis County,” - should for all future time be the controlling law upon the subject-matter covered by . said existing special laws; for the Constitution also says that such charter “shall always be in harmony with and subject to the Constitution and laws of this State,” that the city shall “collect" the State revenue and perform all other functions in relation to the State in the same manner as if it were a county,” and that “the General Assembly shall have the same power over the city and county of St. Louis that it has over other cities and counties;” and although there was a “special law” applicable to the county of St. Louis providing for the election of a collector for said county when the Constitution of 1875 was adopted, and the charter as framed named the collector as a city officer and provided for his election, the General Assembly, under these constitutional provisions, had authority to enact a statute applicable to all counties, including the city of St. Louis, and to require the election of a collector of the revenue in each at the general election held in November, 1906, and every four years thereafter, as it did in 1905, Laws 1905, p. 272..
    8. -: Elected for TJnexpired Term: Entrance into Office. The office .of Collector of the Revenue begins in March, and the general statute provides that in case of a vacancy occurring, in said office it shall be filled by appointment by the Governor and that, such appointee shall hold office until March. The person elected at the preceding November election to fill an unexpired term does not take possession of the office immediately upon his election, nor until the next March, whether the Governor filled the vacancy by appointment prior or subsequent to such election.
    4. -: -: -: Appointment After Election. The fact that the Governor failed to appoint some one to fill the vacancy in the office of Collector of Revenue, which had existed for sometime, until after the election of respondent to fill the unexpired term, did not authorize respondent to assume the duties of the office. " The statute does not declare when the appointive power sha1 be exercised, and he may therefore exercise it at any time before the expiration of the time the statute says his appointee shall occupy the office. Besides, respondent’s title to the office comes through and by virtue of the rights incident to his election, and not through any default or delayed action of the Governor.

      Quo warranto,

    Writ granted.

      Frank W. McAllister, Attorney-General, John T. Gose and S. P. Howell, Assistant Attorneys-General, for relator; Benjamin H. Charles, of counsel.
    (1) The burden is on the respondent to establish his right to the office. State ex rel. v. McCann, 88 Mo. 386; State ex rel. v. Powles, 136 Mo. 376. (2) (a) The legal requirement that collectors should be elected in 1906, and every four years thereafter, is, substantially, a direction that no election for that office shall be held in any intervening year. State ex rel. v. Roach, 269 Mo. 500. The designation by the statute of the years in which collectors are to be elected was intended to prevent collectors being elected in presidential years. State ex rel. v. Roach, 269 Mo. 500. (b) The General Assembly had the power to prescribe the term of office of collector, and to fix the time of elections therefor. Constitution, art. 9, sec. 14; State ex inf. v. Herring, 208 Mo. 727. The term is those four years ending on the first Monday in March of the year in which the collector is required to make his last final settlement for the tax book to be collected by him. R. S. 1909, sec. 11448; State ex inf. v. Herring, 208 Mo. 728. The vacancy admitted by respondent extended to the end of the four years which began in March, 1915. State ex inf. v. Herring, 208 Mo. 726. The Governor had the constitutional right to fill that vacancy. Constitution, art. 5, see. 11; State ex inf. v. Herring, 208 -Mo. 726. (c) In the exercise of its legislative discretion the General Assembly has fixed a regular time for the holding of an election for the office of Collector of the Revenue. "When so fixed, no valid election can be held at any other time. State ex inf. v. Smith, 152 Mo. 521; State ex inf. v. Dobbs, 182 Mo. 367; State ex rel. v. Jenkins, 43 Mo. 265; In re Wooldridge, 30 Mo. App. 618. (d) Sec. 11432, R. S. 1909, “makes no provision for the election of a collector for an unexpired term.” State' ex inf. v. Herring, 208 Mo. 729. The statutes make no provision for an election for collector except for a regular, full, four-year term. State ex inf. v. Herring, 208 Mo. 729. (3) The city of St. Louis is not only a city but also a county charged with the same functions, in its relations with the state at large, and with the State government, as all other counties. Constitution, art. 9, secs. 20 to 25; State v. Rebenack, 135 Mo.'350; Staub v. St. Louis, 175 Mo. 414; Brown v. Marshall, 241 Mo. 738. The collector of a county is a State officer, performing functions within the limits of his county. Henderson v. Koenig, 168 Mo. 356. The office of collector in the city of St. Louis is a State office. It was so treated prior to the Constitution of 1875. Laws 1871-1872, sec. 105. It was so treated by the Constitution of 1875, Constitution, art. 9, sec. 23. It has been so treated by subsequent legislation. Laws 1905, p. 272, now Sec. 11432, R. S. 1909. By the Constitution itself the Legislature has the same power over the city of St. Louis as it has over other cities and counties. Constitution, art. 9, sees. 20 to 25; State v. Telephone Co., 187 Mo. 83; State ex rel. v. Stobie, 194 Mo. 53. The collection of revenue in St. Louis is a subject under control of the Legislature, just as in all other counties in the State. State ex rel. v. Alt., 224 Mo. 510. The collector in St. Louis, being a county officer prior to the adoption of the - Constitution of 1875, and being so treated by the Constitution itself and by subsequent legislation, the adoption of the charter could not change the character of the office. It still remains a county or State office. Henderson v. Koenig, 168 Mo. 367. Sec. 11432, R. S. 1909 (being the Act of 1905), cannot be construed so as to exclude the city of St. Louis. To do so would be to construe that act as special or local. The general law is not only capable of being construed so as 'to apply to all collectors in the State, including the collector in St. Louis, but the statutes specifically so provide. R. S. 1909, secs. 8057, 11434, 11448, 11460, 11464, 11471, 11476, 11481-XIV, 11481-XV.

      Charles W. Bates and Edward W. Foristel for respondent.
    (1) Sec. 11432, R. S. 1909, annuls section 1, article 4, of' the old charter' of the city of St. Louis in so far as it relates to the office of Collector of Revenue; also section 34 of article 5 of the old charter, which section undertakes to define his duties. Constitution 1875, art. 9, secs. 14, 20, 23, 25; St. Louis v. Dorr, 145 Mo. 482; State ex rel. v. Railroad, 117 Mo. 1; Ewing v. Hoblitzelle, 84 Mo. 64; State ex rel. v. Jost, 265 Mo. 72; Peterson v. Railroad, 265 Mo. 506; Kansas City v. Scarritt, 127 Mo. 642; State v. Bennett, 102 Mo. 356; State ex rel. v. Bell, 119 Mo. 70; State ex rel. v. Mason, 153 Mo. 23; Kansas City v. Hallette, 59 Mo. App. 160; Sec. 8057, R. S. 1909. (2) Unless the Act of 1905, providing for collectors of the revenue, now Sec. 11432, R. S. 1909, applies to the city of St. Louis, then it is a special law and a local act within the meaning of section 53, article 4, of the Constitution, and is void as being in contravention of the express terms of the Constitution. Henderson v. Koenig, 168 Mo. 356. (3) Respondent was legally elected Collector of the Revenue of the city of St. Louis at the general election held on November 7, 1916, and by virtue of such election assumed the duties of collector, the office at that time being vacant, there never having been an incumbent. State ex rel. v. Roach, 269 Mo. 500; State ex rel. v. Herring, 208 Mo. 729; Constitution, art. 5, sec. 11; Sec. 5828, R. S. 1909; State ex inf. v. Amick, 247 Mo. 292. (4) Respondent assumed the duties of the office to which he was elected November 7, 1916. The office of Collector of the Revenue having been established in the city of St. Louis by the Act of 1905, now Sec. 11432, R. S. 1909, and the office having been vacant from the time of its establishment by the Act of 1905, the Governor of Missouri having failed to act in filling the vacancy the people at the general election in 1916 undertook to elect, and did elect, respondent to fill the office of Collector of Revenue of the city of St. Louis. Thereafter, respondent received his certificate of election to such office from the election commissioners of the city of St. Louis, qualified by filing his bond, taking the oath of office and entering upon the discharge of his duties, and was filling the office when the Governor appointed May, so that there was no vacancy when the Governor, after having failed for four years to fill the office hy appointment, undertook to appoint May. Sec. 5828, R. S. 1909.

      Charles H. Daues and William H. Killoren, amici curiae.

    (1) Under the Constitution the city of St. Louis is authorized to frame a charter for the government of the city. Article 9, sec. 20, Constitution. (2) Under the Constitution and laws the city of St. Louis is authorized .by charter and ordinance to provide for the collection of State revenue. Sec. 11546, R. S. 1909; Art. 9, sec. 23, Constitution; State ex rel. v. Finn, 8 Mo. App. 348; State ex rel. v. Walsh, 69 Mo. 408; State ex rel. v. Mason, 4 Mo. App.. 379. (3) The repeal of a special act could not of itself put in force within the county of St. Louis the provisions of the general law applicable to the remainder of the State, notwithstanding the fact that the provisions of the general law are the same as those contained in the special law. State ex rel. v. Watson, 71 Mo. 470. (4) The city of St. Louis can only act through the instrumentality of its officers. State ex rel. v. Walsh, 69 Mo. 408; State ex rel. v. Mason, 4 Mo. App. 377; State ex rel. v. Finn, 8 Mo. App. 341. (5) All elective officers of the State are chosen at the general election held biennially on the Tuesday next following the first Monday in November. Article 8, sec. 1, Constitution. (6) The charter of 1876 as well as the charter of 1914, adopted hy the people of the city of St. Louis, provides that all elective officers required hy the charter or ordinance shall he chosen on the first Tuesday in April, and every four years thereafter. Pursuant thereto the Collector of the Revenue for the city of St. Louis, for the past forty year's has been elected in April. Art. 2, sec. 1, Charter of 1876; Art. 2, sec. 1, Charter of 1914.
   WILLIAMS, J.

— This is a proceeding in quo warranto instituted in this court hy the Attorney-General to oust respondent from the office of Collector of the Revenue of the city of St. Louis.

The facts of the case, concerning which there is now no dispute, are correctly stated in his brief, by the learned Attorney-General, as follows:

“The first count of the petition is in the customary form in quo warranto.
“The second count informs the court and alleges that the respondent received the highest number of votes for the office of collector at a certain election held in St. Louis in April, 1914 (1913), but that the respondent was not elected and could not be legally elected at that time, and that by section 11432 of the Revised Statutes of 1909, it is provided that collectors should be elected at the general election in 1906 and every four years thereafter, but that respondent was not elected in 1906, nor at any general election occurring' thereafter.
“That certain proceedings were taken by the Republican City Central Committee in October, 1916, in attempting to nominate the respondent for the office of collector, to fill a vacancy then existing in said office for the term ending in March, 1919; and the respondent appeared before the Board of Election Commissioners of said city and urged that there was a vacancy then existing in the office, employed counsel to represent him before the said board, and filed a brief in support of his contention.
“That thereafter the Board of Election Commissioners caused ballots to be printed for the generál election to be held on the 7th day of November, 1916, whereon they printed the name of the respondent as a candidate for the office of collector for the said unexpired term; and at that election he received the largest number of votes cast.
“That on December 14, 1916, the Governor of the State, Hon. Elliott W. Major, appointed and commissioned Sidney S. May to the office of Collector to fill the said vacancy alleged and claimed by the respondent. Mr. May executed the bond required by the statute, in duplicate, in the sum of seven hundred and fifty thousand dollars, with the United States Fidelity and Guaranty Company as surety thereon, this company being authorized to do business in Missouri and to become surety on such bonds. Mr. May filed one of the duplicate bonds with the State Auditor, and procured his certificate of approval thereof. He then presented the other duplicate of said bond to Hon. Henry Kiel, Mayor of St. Louis, requesting his approval thereof. (Mayor Kiel refused to approve the bond upon the sole ground, as found by the special commissioner, that he had already approved the bond of defendant Koeln.) Mr. May then offered to file his bond with the City Register, the official custodian of such documents in St. Louis, and on the same day, December 16, 1916, he exhibited his commission and the certificate of approval of his bond by the State Auditor to the respondent and demanded of him. the possession of the office, together with the papers and documents belonging to it. Respondent refused to surrender the office.
“The respondent’s return alleges his own qualifications to hold the office, and these are not denied by the relator. He also alleges the fact of a city election in April, 1913, substantially as does the relator, and the fact that he received the highest number of votes and his subsequent qualification and assumption of the duties of the office by him. Respondent then alleges that for a long time prior to October, 1916, a vacancy existed in the office of Collector of Revenue in St. Louis and that he was nominated by the Republican City Central Committee, no person having filed any declaration for nomination under the primary law; that the Democratic City Committee nominated H. C. Menne, and that at the election respondent received the highest number of votes. He then alleges that the election commissioners of said city issued to him a certificate of election for said unexpired term; that on December 8, 1916, he qualified by giving bond, which was duly approved by the Mayor and the State Auditor, and took possession of the office.
“In answer to the second count the respondent repeats his allegations respecting the city election in April, 1913, .and denies that he was not legally elected at said election. He then admits the provisions of section 11432, Revised Statutes 1909, admits that he was not elected Collector at the general election in 1906, and alleges that he was elected at the general election November 7, 1916, to fill the unexpired term ending March, 1919.
“He admits that he contended, before the Board of Election Commissioners in St. Louis, that a vacancy existed in 1916, and that he ran for the office for the unexpired term on a nomination by the Republican City Central Committee.
“Respondent also admits that the Governor appointed Mr. May on December 14, 1916, but denies that the appointment was valid, and also alleges that Mr. May was ineligible to hold the office because of the fact that he had been appointed a member of the Board of Election Commissioners for a term expiring January 15, 1917.”

If respondent has legal title to the office in question it is by reason of having been duly elected thereto. He presents no other basis for his claim. If he was legally elécted thereto then it must have been either at the April, 1913, city election or the November, 1916, general election, because reference is made to no other election.

The legal questions calling therefore for an answer upon the issues of the present record may be summarized broadly as follows:

1. Was respondent legally elected to this office at the April, 1913, city election for a term of four years?

2. If the above question is answered in the affirmative, it will determine the case. If that question is answered in the negative then the next question arising is: Was respondent legally elected at the general election held November 7, 1916?

3. If the second question is answered in the negative the case is again at an end; but if the second question is answered in the affirmative then the next question arising is: When, after the November, 1916, election should respondent he permitted to enter upon the discharge of the duties of the office?

These in their order.

I. Was respondent legally elected to this office at the April, 1913,' city election? We not- Both the relator and respondent in their respective hriefs agree with ug Up0n this proposition.

Learned attorneys, in behalf of the city of St. Louis, appearing, by leave of this court, as amici curiae, alone question the soundness of this position. And since the question is one which must be determined by the law and not by consent or desire of parties, it is but proper that we consider the advice of our friends before passing to the other questions involved.

The view expressed by amici curiae is that at the time of the 1913 city election (and even yet), the office of Collector of the Revenue in the city of St. Louis, was and is a city office as contradistinguished from a county or State office and that the law governing the elections held for the purpose of filling such office was contained in the charter of said city rather than in the general statutes of the State.

If the above legal contention is correct respondent would now be entitled to hold the office, because the admitted facts show that in pursuance of said charter provisions he was at the April, 1913, election elected to hold -this office for a term of four years, which term would carry him safely by the present date of controversy.

In opposition to this view, however, both the relator and respondent in their briefs contend that the Collector of Revenue for the city of St. Louis is a State (county) officer and his election is to be governed by the statutes of the State and that since the statutes of the State made no provision for an election to be held in April, 1913, a legal election was not then held which would entitle the respondent to now hold the office.

Article 4, section 1, St: Louis Charter of 1876, then in force, was as follows:

“The following named city officers shall he elected by the qualified voters of the city, and shall hold their office for a term of four years, and until their successors shall be duly elected and qualified, viz: a mayor, comptroller, auditor, treasurer, register, collector, recorder of deeds, inspector of weights and measures, sheriff, coroner, marshal, public, administrator, president of board of assessors, and the president of the board of public improvements.”

Article 2, section 1, of the same charter provides:

“A general election, of all elective officers required by this Charter, or by any ordinance of this city, shall be held on the first Tuesday in April, 1877, and every four years thereafter, except as otherwise provided in this charter and the scheme.”

Section 11432, Revised Statutes 1909 (Laws 1905, p. 272), provides:

“The offices of. sheriff and collector shall be distinct and separate offices in all the counties of this State, and at the general election in 1906, and every four years thereafter, a collector, to be styled the collector of the revenue, shall be elected in all the counties of this State, who shall hold their office for four years and until their successors are duly elected and qualified: Provided, that nothing herein contained shall be so construed as to prevent the same person from holding both offices of sheriff and collector. ’ ’

Section 8057, Revised Statutes 1909 (Act of 1879), provides:

“Whenever the word ‘county’ is used in any law, general in its character to the’ whole State, the same shall be construed to include the city of St. Louis, unless such construction be inconsistent with the evident intent of such law, or of some law specially applicable to such city.”

It will appear from the foregoing quoted sections of the charter and statutes that there is an apparent. conflict of law with reference to the election of a collector of the city of St. Lonis.

The following provisions of the Constitution of Missouri, 1875, may he briefly mentioned as applicable, viz: Article 9, section 20, gives to the city of St. Louis the right, in the manner therein designated, to adopt “a scheme” and “a charter in harmony with and subject to the Constitution and laws of Missouri,” and provides that the charter and scheme when adopted shall “take the place of and supersede the charter of St. Louis and all amendments thereof and all special laws relating to St. Louis County.”

Section 23 of the same article provides that “such charter and amendments shall always be in harmony with and subject to the Constitution and laws of Missouri. . . . The city as enlarged shall . . . collect the State revenue and perform all other functions in relation to the State in the same manner as if it were a county as in this Constitution defined.”

Section 25, same article, provides:

“Notwithstanding the provisions of this article, the General Assembly shall have the same power over the city and county of St Louis that it has over other cities and counties of this State.” (Italics ours.)

The process of logic by which is determined whether the Collector of the city of St. Louis is a city officer or a State officer is apt to become confused by reason of the singular and peculiar relationship which the city of St. Louis bears to the State. Loosely speaking any officer elected by the suffrage of the city of St. Louis might be termed a city officer, at least in the sense that he is elected by the. vote of the city. The character of the electorate, however, should not necessarily determine the character of the office. The territory confined within the boundaries of the city of St. Louis forms a political subdivision of the State. This territory has no county organization in the ordinary use of that term, but by the Constitution the said city is to “collect the State revenue and perform all other functions in relation to the State in the same manner as if it were a county as in this Constitution defined.” If this political subdivision of the State were styled a county no confusion would arise in arriving at the conclusion that the person whose duty it was to collect the State taxes was an officer of the State and that his election would be a subject of legislative control.

Why then should the election of the Collector of the Revenue of the City of St. Louis (a separate political subdivision of the State which, under the Constitution, hears the same relationship to the State as a county), who, at least so far as collecting the revenue ordinarily collected by a county collector is concerned, performs the same governmental function, be controlled by a law different from that which controls the election of collectors in the other political subdivisions (counties) of the State? No reason is apparent why the election of one should be controlled by a law different from that applying to other officers exercising a like governmental function, and none can be said to exist unless perchance the power of control over the election of this officer in the city of St. Louis was, by the Constitution, permanently transferred to the charter making power of said city.

It is unnecessary here to enter into a detailed historical discussion of the' well known events surrounding and leading up to separation of the city of St. Louis from the county of St. Louis whereby the city of St. Louis became a separate political subdivision of the State; but a statement of a few of the conditions then existing and a review of the constitutional provisions with - reference thereto will be sufficient.

Prior to the separation of the city from the county of St. Louis, which occurred in the year 1876 a special law applicable to the county of St. Louis was in existence providing for the election of a collector for said county. [Laws 1871-2, sec. 104, p. 105.]

Under the Constitution existing in 1872 such special laws were permissible. It has been shown above that the Constitution of 1875, which provided for the separation of the city from the county and authorized the making of a scheme and charter, provided also that said scheme and charter when adopted should take the place of and supersede all special laws relating to St. Louis County. This was undoubtedly a very wise provision, making for harmony rather than chaos- and confusion upon the occurrence of the act of separation then in contemplation, but of course not definitely foreknown.

The charter (Charter, art. 4, sec. 1, and art. 2, sec. 1, supra) did provide for electing a collector to collect the revenue from the territory embraced within the city after separation.

But was it intended -by this constitutional provision that the charter provision thus superseding the said special laws should for all future time be the controlling law upon the subject-matter covered by said special laws? In other words, was it the intention of the Constitution to forever withdraw from general legislative control the right to prescribe the manner of electing a collector of the revenue for the political subdivision of the city of St. Louis? Or was it the intention merely to provide a convenient rule of conduct in such matters until such time as the General Assembly of the State should, in a legal way, otherwise provide? That the latter was intended, is, we think, clearly evident by the language of section 25, supra, appearing in the same article of the Constitution, viz: “Notwithstanding the provisions of this article, the General Assembly shall have the same poiuer over the city and county■ of St. Louis that it has over other cities and counties of this State.” [Ewing v. Hoblitzelle, 85 Mo. 64, l. c. 76 et seq.] The following authorities also support the -general principles here underlying: State ex rel. v. Railroad, 117 Mo. l. c. 11-12; St. Louis v. Klausmeier, 213 Mo. 119, l. c. 129-130; Peterson v. Railroad, 265 Mo. 462, l. c. 504.

That the General Assembly has the power to legislate with reference to the subject of electing collectors of revenue in the different counties of the State there can be no doubt. Having that power over the respective counties, it necessarily follows from the above constitutional mandate that it also has this same power over the political subdivision of.the State known as the city of St. Lonis.

Having reached the conclusion that the General Assembly has the power to so legislate, we have next to ascertain whether it has exercised that power.

Section 11432, supra (Act of 1905), provided that, “at the general election in 1906, and every four years thereafter, a collector, to be styled the Collector .of the Revenue shall be elected in all the counties of this State, who shall hold their office for four years.” Section 8057, supra (Act of 1879), provides that “Whenever the word ‘county’ is used in any law general in its character to the whole State, the same shall be construed to include the city of St. (Louis, unless such construction be inconsistent with the evident intent of such law, or of some law specially applicable to such city.”

Whether the General Assembly had exercised this power to legislate upon this subject prior to 1905, we need not here stop to consider. We have no hesitancy, however, in saying that by the Act of 1905, supra, it did exercise such power. And it not being apparent that a valid reason exists for electing a collector in the political subdivision of the city of St. Louis at a time different from that in the other political subdivisions of the State, we hold that the law should apply to each political subdivision thereof. To hold otherwise would be to give the act a construction which would render the same unconstitutional as in violation of article 4, section 53 (32) of the Constitution (the inhibition against special laws where a general law can be made applicable). And such a construction, under the circumstances here presented, would violate one of the well known canons of statutory construction. [State ex rel. v. Mason, 153 Mo. 23, l. c. 49; 6 R. C. L. 78, sec. 77; 2 Lewis’s Sutherland, Statutory Construction (2 Ed.), par. 498.]

We, therefore, hold that the Act of 1905, sec. 11432, supra, applies to the city of St. Louis, and that, at least since the Act of 1905, supra, the general statutory law of the State, and not the charter of the city, controls the matter of electing or filling the office of Collector of the Revenue for the city of St. Louis.

The points above ruled do not conflict with the rulings upon the points held in judgment in the cases of State ex rel. v. Finn, 8 Mo. App. l. c. 348; State ex rel. Burden v. Walsh, 69 Mo. 408; State ex rel. v. Mason, 4 Mo. App. l. c. 379-80; State ex rel. v. Watson, 71 Mo. 470, cited and relied upon hy amici curiae.

II. Was respondent legally elected at the November, 1916, general election? We have reached the conclusion that this question must he answered in the affirmative.

It stands conceded upon the facts disclosed hy this record that if there was authority of law for electing a Collector for an unexpired term then respondent was duly elected. No point is made of any existing irregularities which would invalidate respondent’s election if an election were authorized.

But the contention of relator is that since section 11432, supra (Act of 1905), definitely fixing the term of office at four years and the time of election in 1906 and every four years thereafter, did not make specific provision for elections to fill unexpired terms, upon vacancies occurring, it thereby evidenced a legislative intent that no elections should he held in off years to fill an unexpired term of that office, and that therefore the prior enactment on elections for unexpired terms to fill vacancies (Sec. 5828, R. S. 1909) should not apply.

Relator relies upon State ex rel. Evrard v. Roach, 269 Mo. 500, and State ex inf. v. Herring, 208 Mo. 708.

The Evrard case deals with the question of election with reference to the office of State Superintendent of Public Schools and holds that the constitutional provision, viz., “the Superintendent of Public Schools shall be elected, at the general election in* the year one-thousand-eight-hundred and seventy-eight and every four years thereafter,” was controlling with reference to the subject of elections held to fill that office and that the Legislature was without authority to provide for an election for that office at any different time. That case cannot be said to be an authority upon the point here presented. Here we have no constitutional provision directing the time for holding elections of collectors. The point here for determination is not whether the Legislature has the power to provide for election of collectors for an unexpired term (a point which will be conceded by all), but whether the Legislature has exercised its conceded power in so providing.

A careful reading of the Herring case, supra, will also disclose that it is not in point. In that case the court was dealing with the question with reference to the time the relator, elected at the general election in the year 1906 for a full term as county collector, should be entitled to the office, or stated the other way, how long should the respondent, an appointee of the Governor, appointed to a vacancy occurring during the last year of a full term, be permitted to hold the office. It should not be 'said that that case undertook to settle the law on a question not before it, to-wit: Can there be an election of a collector in an off year to fill the unexpired term, a vacancy in-such office having occurred prior thereto, as in this case?

Section 5828, Revised Statutes 1909, is as follows:

“Whenever any vacancy, caused in any manner or by any means whatsoever, shall occur or exist in any State or county office originally filled by election by the people, other than the office of Lieutenant-Governor, State Senator, Representative, Sheriff or Coroner, such vacancy shall be filled by appointment by the Governor; and the person so appointed shall, after, having duly qualified and entered upon the discharge of his duties under such appointment, continue in such office until the first Monday in January next following the first ensuing general election — at which said general election a person shall be elected to fill the unexpired portion of such term, or for the ensuing regular term, as the ease may b.e, and shall enter upon the discharge of the duties of such office the first Monday in January next following said election: Provided, however, that when the term to he filled begins or shall begin on any day other than the first Monday in January, the appointee of the Governor shall be entitled to hold such office until such other date. ’ ’

That the language of the above section is sufficiently comprehensive to include the office of county collector all will concede. This section was a part of the existing law when the Act of 1905, section 11432, supra, was passed. It was therefore unnecessary that the Legislature in the Act of 1905 should have specifically provided for elections to fill unexpired terms. Their failure so to do is evidence of the fact that they knew of the then existing statute which would apply and cover the 'matter of elections for unexpired terms rather than evidence of an intention to have no statute on the subject. It is a well established rule of statutory construction that statutes in pari materia, even though enacted at different dates, are to be construed together and if possible given such construction as will harmonize and give effect to all the provisions. [State ex inf. v. Standard Oil Co., 218 Mo. 1, l. c. 355, and cases therein cited'; 2 Lewis’s Sutherland, Statutory Construction (2 Ed.), par. 443; Frost v. Wenie, 157 U. S. l. c. 58.]

Applying the above rule, we hold that section 11432, supra, providing the time of holding elections for a full term does not coüflict with the provisions of section 5828, supra, providing for elections to fill unexpired terms, but that the two are in harmony with each other, supplying a complete statutory rule with reference to elections for this office.

III. Having reached the conclusion that respondent was legally elected for an unexpired term at the November, 1916, general election, we are now to determine when respondent takes his office by virtue of said election.

Relator contends that respondent should not enter upon the discharge of the duties of the office until the first Monday in March, 1917. Respondent contends that he was entitled to take the office immediately after the election. Nó-authorities are cited.

The term of the office of collector begins on the first Monday in March. [Sec. 11448, R. S. 1909; State ex inf. v. Herring, 208 Mo. 708, l. c. 728.]

Section 5828, supra, in effect provides that a person elected for an unexpired term shall enter upon the discharge of the duties of such office the first Monday in January next following such election unless the term to be filled (here the term of the office of collector) begins or shall begin on any day other than the first Monday in January, then upon such date (in this case the first Monday in March, 1917).

It will be noticed that said section which provides for an election for an unexpired term also provides for an appointment by the Governor to fill such vacancy until the time therein specified.

Under the admitted facts in this case the vacancy existed at least prior to June 1, 1916. How long prior thereto the purposes of this case do not call for an answer. The Governor, however, did not undertake to exercise his power of appointment until December 14, 1916.

Respondent in his brief admits .that had the Governor made his appointment prior, instead of after, the general election of 1916, the respondent could not have taken office under such election until the first Monday in March, 1917, but contends that since the Governor failed to appoint prior to said election he had no right to appoint thereafter, and, for that reason, respondent (no one else having a better title), had the right to assume the duties of the office.

Since the above mentioned section, upon the occurrence of a vacancy as here existed, gave the Governoi the power to appoint a person who, under the terms of the statute, would hold until the first Monday in Márch, 1917, and since the act does not declare when the appointive power must he exercised, we are of the opinion that the fair construction of the statute is that the Governor may exercise that power at any time before the expiration of that period and the man so appointed would hold until the first Monday in March, 1917. There is no proviso in the statute which says in the event the G-ovemor fails to appoint prior to the date of election that thereupon the elected person shall immediately assume the office, and we are without the authority to write such a proviso in the statute.

Under the statute, therefore, respondent’s title comes through and by virtue of the rights incident to his election, and not through any default or delayed action upon the part of the appointing power.

Prom the conclusions reached above, it follows that the respondent is not entitled to enter upon the discharge of the duties of said office until the first Monday in March, 1917, and that the writ of ouster should be awarded. It is so ordered.

Graves, C. J., Walker, Faris and Blair, JJ., concur; Bond, J., concurs in result; Woodson, J., dissents.