author: BOND, J.

text:
    THE STATE ex rel. INTER-INSURANCE AUXILIARY, as Agent for MERCHANTS RECIPROCAL UNDERWRITERS, v. CHARLES G. REVELLE, Superintendent of Insurance.
    In Banc,
    April 13, 1914.
    1. INSURANCE: Power of State to Regulate. The Legislature has power to regulate insurance contracts, whether entered into by individuals, associations or corporations.
    2. -: -: Discrimination. In the exercise of its power to regulate insurance contracts the General Assembly must make the same regulations as to all members of any particular class, and impose equal conditions and burdens upon them. The Constitution does not permit any discrimination between individuals composing a class of natural persons engaged in any trade or calling the prosecution of which affects the public 257 Mo. 34 welfare, or between tbe members of a class of corporate insurers.
    ■3. -: -: -: Inter-Indemnity Contract Law. Tested by this rule, tbe Inter-Indemnity Insurance contract . law of 1911, Laws 1911, p. 301, permitting individuals, firms and corporations to make contracts providing indemnity among each other from casualty or other contingency, or from fire loss or damage to their. own property, and declaring the making of such contracts shall not constitute the business of insurance and that such business shall not be subject to the laws of this State relating to insurance, is either unconstitutional or it has repealed pro tanto the existing statutes regulating insurance.
    -4. -: Elements of Contract. The essential elements of a contract of insurance are an agreement, oral or written, whereby for a legal consideration the promisor undertakes to indemnify the promisee if he suffer a specified loss.
    5. -: Inter-indemnity Contract Law: Dishonest and Misleading Title: Unconstitutional. To enact a statute repealing another the General Assembly must have before it a bill which contains one subject, which 'must be clearly expressed in its title. The subject must be pointed out by a title which is not designed to mislead either the members of the Legislature or the people, and the title must be a fair forecast of the body of the bill. The title to the Inter-Indemnity Insurance Contract law of 1911, Laws 1911, p. 301, which is, “An act defining certain classes of indemnity contracts, prescribing regulations therefor, and fixing' a license fee,” was misleading and did not clearly express the subject of the bill, because the bill does not define indemnity contracts, and it prescribes no regulation therefor, and is misleading because the bill untruthfully declares that the making of contracts providing indemnity from loss or damage by fire shall not constitute the business of insurance, and the title gives no notice of the fact that the bill says the making of such indemnity contracts “shall not be subject to the. laws of this State relating • to insurance.”
    (6.--: -: Partial Repeal of General Law: Special Law. The Constitution declaring that “nor shall the General Assembly indirectly enact such special or local law by the partial repeal of a general law,” the Inter-Indemnity Insurance Contract law of 1911, Laws 1911, p. 301, which declares that “the making of contracts between individuals, firms or corporations providing indemnity among each other' from casualty or other ■contingency, or from fire loss or damage to their own property . . . shall not be subject to the laws of this State relating to insurance,” thereby restricting the benefits of the bill to sucb persons, and denying,to all other persons special exemption from the laws regulating insurance, is a special law enacted for tbe special benefit of tbe contract-makers mentioned therein, and pro tanto attempts to repeal the general ■laws, regulating insurance, and is therefore invalid.
    Mandamus.
    "Writ denied.

      William J. Jones for relator.
    (1) The Act of 1911 (Laws 1911, p. 301), entitled, “An Act defining certain classes of indemnity contracts, prescribing regulations therefor, and fixing a .license fee,” is not unconstitutional and void. It does not violate section 28 of article 4 of the Constitution of Missouri. The title clearly expresses the general contents of said act. Said act does not contain more than one subject.. (2) The act is not so vague, indefinite and uncertain in its contents as to make , the same void. Said act does define what are contracts for inter-indemnity or inter-insurance; it does say what kind or character of contracts for indemnity, do not constitute the business of insurance and shall not be subject to the laws of this State relating to insurance. Blanchard Co. v. Hamblin, 162 Mo. App. 242. (3) The Merchants Reciprocal Underwriters is an inter-insurance or inter-indemnity association or exchange composed of individuals, firms or corporations for the purpose of exchanging contracts providing insurance or indemnity among its own members or subscribers against loss by fire, lightning and cyclone to their own property. It is not engaged in the general insurance business, and does not write insurance for the general public. (4) The form of contract or policy exchanged by the subscribers of the Merchants Reciprocal Underwriters is a contract of inter-insurance or inter-indemnity, and is not the ordinary form of old line fire insurance policy.

      Boyle & Howell, Joseph 8. Brooks and R. F. Gilkerson amici curiae.

      John T. Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for respondent.
    The Act of 1911 (Laws 1911, p. 301), entitled, “An act defining certain classes of indemnity contracts, prescribing regulations therefor and fixing a license fee, ” is unconstitutional and void: (a) Said act is violative of section 28 of article IV of the Constitution in that the title to said act does not clearly express the general contents of said act, and said act contains more than one subject, which separate subjects are not clearly expressed in the title, (b) Said act is so vague, indefinite and uncertain as to make the act absolutely void for indefiniteness. Sec. 28, art. 4, Constitution; State v. Coffee & Tea Co., 171 Mo. 639; State ex rel. v. County Court, 102 Mo. 537.
    STATEMENT..
    The relator prayed an alternative writ of mandamus to compel the Superintendent of Insurance to issue to its principal a certificate to do inter-insurance business in this State, claiming it was so authorized by compliance with the terms of the Act of 1911, Laws 1911, p. 301. The act in question is, to-wit:
    (H. B. 277.)
    INSURANCE!: Inter-Indemnity Contracts.
    AN ACT defining certain classes of indemnity contracts, prescribing regulations therefor, and fixing a license fee.
    SECTION 1. Contracts for indemnity shall not constitute insurance business.
    2. Declaration shall be filed, where, shall contain what.
    SECTION 3. Agent to procure certificate of authority, fee, etc.

      Be it enacted by the General Assembly of the State of Missouri, as follows:

    Section 1. Contracts for indemnity shall not constitute insurance business. — The making of contracts between individuals, firms or corporations providing indemnity among each other from casualty or other contingency, or from fire loss or other damage to their own property, shall not constitute the business of insurance, and shall not be subject to the laws of this State relating to insurance.
    Sec. 2. Declaration shall be filed, where; shall contain what.— The attorney, agent or other representative acting for such individuals, firms or corporations, shall file with the Superintendent of Insurance of this State, a declaration in writing, verified by the oath of such attorney, agent or other representative, setting forth:
    (a) The name or title of the office through which such individuals, firms or corporations exchange such contracts.
    (b) A copy of the form of contract under or by which such indemnity is to be effected. ’
    (c) The location of the office or offices through which such contracts are to be issued.
    (d) That service of process may be had upon the Superintendent of Insurance in this State in all suits arising out of such contracts.
    Sec. 3. Agent to procure certificate of authority, fee, etc.— Every attorney, agent or other representative through whom are issued or negotiated any contracts for indemnity of the character referred to in this act, shall procure from the Superintendent of Insurance annually a certificate of authority, stating that all the requirements of this act, which are applicable, have been complied with; and upon such compliance, and the payment of a fee of two dollars, the Superintendent of Insurance shall issue such certificate.
    Approved March 9, 1911.
    This court ordered the writ. Thereupon the respondent waived its issuance and filed his return to the petition of relator refusing to issue the license or certificate; first, for that relator, being a corporation, could not legally be the agent of its alleged principal nor could be lawfully incorporated for that purpose; second, that relator had not complied with certain rules established by the Insurance Department for the purpose of ascertaining the nature of its proposed business and its good faith in conducting the-same, and that relator had assumed a name so similar to that of the previous association as to be deceptive and confusing; third, that the act of the Legislature, supra, is unconstitutional.
    To these returns relator filed a reply; whereupon, the case was submitted, after oral argument in this court, upon the pleadings and exhibits and the following admitted facts:
    ‘ ‘ First. That the Inter-Insurance Auxiliary Company is incorporated for the following purposes: to inspect insurance risks of whatever nature or character; to protect property from loss before or after damage by covering, guarding, removal, storage, or otherwise; to adjust and settle losses or claims for loss or damage; to furnish office facilities and experienced clerical and other employees to individuals, insurance, inter-insurance or inter-indemnity and other companies and associations; to act as agent, manager, or other representatives for inter-insurance or inter-indemnity exchanges or associations and for the persons, firms and corporations composing the same; and generally to do any and all things incident and necessary to the carrying out of the above purposes.
    “Secondly, That on July 22, 1913, the date of the filing of relator’s application for a license, the following inter-insurance associations or reciprocal exchanges had been licensed by the Superintendent' of Insurance, viz:”
    Here follows a list of the names of a number of associations so licensed.
   OPINION.

BOND, J.

(After stating the facts-as above). — I. The pivotal point on this appeal is whether the act of the Legislature, supra, relied on by the relator as the authority for the conduct of the business in -which its principal seeks to engage without being amenable to the insurance laws of this State regulating that business, is a constitutional enactment? We think it is not. The power of the Legislature to regulate insurance contracts, whether entered into by individuals, associations or corporations is not an open question either on precedent or principle. [R. S. 1909, secs. 7003, 7041; Laws 1911, p. 271, amending Sec. 7008, R. S. 1909; Laws 1911, p. 283, amending Sec. 7099, R. S. 1909.]

The root of this control lies in the paramount power of the State to regulate its internal affairs for the protection and well-being of its citizens and to that end, to impose salutary and equal conditions or burdens on any trade . and calling, the prosecution of which affects the public welfare. In the exercise of this power, however,- the State must make the same regulations as to all the member of the particular class, for the Constitution does not permit any discrimination between individuals composing a class of natural persons engaged in that calling, nor between the members of a class of corporate insurers. [State v. Stone, 118 Mo. l. c. 401.]

In the pursuance of that policy and within constitutional limitations, the Legislature has provided in this State an insurance department, which is charged with the duty of executing the laws in relation to insurance and insurance companies doing business in this State. [R. S. 1909, sec. 6877.] It is the duty of that department to compel all persons’, whether natural or artificial, to observe the restrictions and safeguards prescribed by law for the transaction of the business of insuring life or property. And as to the obligations assumed by such persons the statute of this State is to-wit: “No individual or association of individuals, under any style or name, shall be permitted to do the business mentioned in this chapter within the State of Missouri, unless he or they shall first fully comply with all the provisions of the laws of this State governing the business of insurance.” [R. S. 1909, sec. 7041.]

The essential elements of a contract of insurance are an agreement, oral or written, whereby, for a legal consideration the promisor undertakes to indemnify the promisee if he shall suffer a specified loss. [1 May on Insurance, secs. 1, 2, and 43; Duff v. Fire Assn., 129 Mo. l. c. 465; State v. Phelan, 66 Mo. App. l. c. 558.] That-the contracts proposed by the relator as the representative of its principal were of this character is not denied, and is fully proved by the terms and form of the policy attached to its petition for the writ.

In the matter in hand the relator is a corporation which assumes to be the agent with plenary power to represent an association of individuals, firms or corporations known as the “Merchants Reciprocal Underwriters.” This body is made up of such persons, firms or corporations as shall first accept one of its policies of insurance and in the application therefor, shall have executed a power of .attorney to relator to underwrite for the applicant in the name of “manager,” policies of insurance against loss or damage by fire, etc. In substance to do any and all things which such “manager,” if insurer, could do of his own initiative. The applicant is also required to appoint the corporate relator as “manager” of the body which he seeks to join and his grant of said power of attorney is “to form part of” his contract of insurance with this exchange.

By the term “exchange” the policy says “is meant” the persons who are subscribers at the insurers’ exchange, to Merchants Reciprocal Exchange. From this we take it, the general body has insurers’ exchanges at different points, for the printed application speaks of the power to “transfer the office” where the indemnity contract is made from St. Louis to any other point. Among other powers granted to the “manager,” the right to take fifteen per cent of the cost of insurance and expenses, from the funds which each member is to pay, is not overlooked.

It is perfectly plain from the outline of the business which relator seeks to do as the agent or manager of all persons to whom relator shall issue policies, that it is a state-wide plan with no other requirements as to membership than that the applicant shall insure his property and give the “manager” the power to do all things, simply by using the name “manager,” which the member could do himself. The-plan provides no guaranty of solvency beyond what may be left of the “funds payable by the single subscriber” after the subtraction therefrom, by the manager, of his stipulated per cent and all.the cost and expenses which the manager may be put to in carrying' on the insurance business. Moreover, the policy itself provides that no joint liability shall be incurrable by the insurer and it is not suggested that the association or its corporate alter ego, relator, is to be liable in any way whatever in case of the accrual of a right of action on one of the policies. Indeed, the policy itself expressly provides that one only of the members of the Merchants Reciprocal Underwriters shall be suable in-case of a default, and that the other members shall abide that action as to their separate responsibility which shall bear the same proportion to the entire loss which his premium bears to all other premiums then in force.

In order to enable the promoters thereof to carry out the above scheme, it was indispensable that the statutes safeguarding the insurance should be repealed. This was comprehended, and the result was the legislative act under which relator is now demanding that its principal be licensed to do insurance business in this State free from burdens or restrictions imposed on that business by the General Assembly. It is apparent that unless the legislative act under review has repealed pro tanto the existing statutes regulating insurance, the Superintendent of Insurance would violate the law if he gave his official sanction to the business of relator’s principal. As the necessary effect of the act in question is to repeal the insurance laws in favor of the persons mentioned in the act, it becomes important to determine if it was constitutionally enacted.

II. Before the Legislature can enact a repealatory act it must have before it a bill which contains “one subject” which “shall be clearly expressed in its title.” [Constitution, art. 4, sec. 28.] This is a mandatory provision though liberally construed. It will not annul an act where all its provisions radiate from the “single subject” of the bill and are within its just scope and reasonable application, and where that subject is pointed out by a title which is not designed to mislead either the members of the Legislature or the people, but which contains a fair forecast of the contents of the bill. [State ex rel. v. County Court, 128 Mo. 427; O’Connor v. Transit Co., 198 Mo. l. c. 639; State v. Burgdoerfer, 107 Mo. l. c. 30; City of Kansas v. Payne, 71 Mo. l. c. 162.]

In the matter in hand we need not consider any question of unity of subject in the body of the bill, for the fault with this act lies in the fact that the title does not “clearly express” the subject of the bill. A simple glance at the enacting clause of the bill shows that it was fashioned so as to abrogate the application of the insurance laws to every policy issued in this State to a person, firm or corporation who should become a member of the body issuing the policy. Such a business would necessarily accommodate itself to the demand for insurance of a large percentage of the citizens of this State. To put it in operation it was necessary, however, to repeal the existing statutes governing insurance, and the body of the bill, if valid, accomplishes that ■ object. But it does not do so openly. It resorts to the device of stating what is not true (except this statute can be held to make it true) that contracts of indemnity made for fire losses -or other damages to property are not insurance contracts, .and hence, shall not “he subject” to .the insurance, laws of this State. Or to put the matter in another form, the bill provides that insurance is not insurance.

Conceding the power of the Legislature, absent constitutional restrictions, to change or abolish any rule or principle of law, still its act in so doing, must be by a bill whose title shall truthfully describe its object. It is as clear as consciousness, that no- title would perform that office if it stated the bill to which it was prefixed was one' to “define” certain insurance contracts, and the body of the bill undertook, not to alter the legal rights and liabilities of the parties to such contract, but simply to exempt them from the application of laws governing similar contracts. In such a case the bill would define nothing. A definition means to state in other words the meaning of certain terms or language. The bill under review did not set forth the meaning of the terms “indemnity contracts” nor did it explain that they were’ synonymous with insurance contracts as has been universally adjudged. On the contrary, the bill in question instead of so defining the “indemnity .contracts” mentioned in its title, bluntly destroyed the definition attached -to them by law and gave no other. This was in clear and direct contradiction to the words contained in the title to the bill, for they pointed out the sole object of the bill to be the “defining” of certain classes of indemnity contracts.

The Constitution says that the subject “of the bill” shall be “clearly expressed” in its title. No liberality of construction or breadth of interpretation could bring the subject of this bill within the natural meaning and scope of the words of its title. The only effect of the enacting terms of the bill was to exempt •certain contracts — which were insurance contracts— •by miscalling them, from the burden imposed upon that business by the policy of the State. The bill did not seek in any wise to alter the intrinsic character or legal efficacy of such contracts. It contemplated that their full obligations should remain unchanged. Its-only purpose was to declare that the “making” of them “shall not constitute insurance business.” It is incontrovertible that it was the aim of the act not to abolish insurance business, but to enable certain persons to-carry it on free from the supervision of that department of government and released from application of the general statutes which are designed to enforce and secure for the benefit of the people contracts of insurance made with them against loss to their property by fire or otherwise.

If the constitutional requirement that the title to any bill, other than appropriation bills, shall “clearly express” the one subject with which its enacting clause proposes to deal, can be contravened, then in our judgment that has been done in this case. We therefore, conclude that the Act of 1911 (Laws 1911,. p. 301) now under review, was foisted upon the Legislature and adopted by it in the face of the Constitution and hence did not become a law of this State.

III.

The same conclusion necéssarily follows when the act under review is considered in relation to the limitation of the power of the Legislature to enact special laws of a particular kind. The Constitution deals with this subject in article 4, section 53, and subsequent paragraphs including, to-wit: “ (33) Nor shall the G-eneral Assembly indirectly enact such special or local law by the partial repeal of a general law.” From the terms of the act of the Legislature and by the admitted facts it appears that the beneficiaries are to be associations made up of the particular individuals, firms or corporations which shall make the forms of contracts of insurance hereinbefore described, and the benefits of the bill are restricted to the special members of this particular association. The parties to all other forms of insurance contracts are denied the special exemption from the laws regulating that business which is accorded to the beneficiaries of the present bill, and this dicrimination is effected by the exact method prohibited by the Constitution, in this, that the bill under review, if valid, would amount to “the partial repeal of a general law,” and thereby, “indirectly” enact a special law for the benefit of the special contract makers mentioned in the bill. That the Legislature cannot in this way violate the prohibition of the Constitution against the enactment of special laws, has been repeatedly held. [Henderson v. Koenig, 168 Mo. l. c. 371; State ex inf. v. Ins. Co., 150 Mo. l. c. 135; In re Flukes, 157 Mo. l. c. 132.]

In conformity with these views the writ herein-before granted by us is quashed.

All concur, except Woodson, J., who dissents as to paragraph one and concurs in paragraphs two and three and in result, and excepting Lamm, G. J., and Brown, J., who concur in everything except what is said in approval of the Henderson case.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    CITY OF ST. LOUIS, Appellant, v. CHRISTIAN BROTHERS COLLEGE et al.
    In Banc,
    April 13, 1914.
    1. CHANGING BOULEVARD INTO STREET: Consent of Abutting Owners: No Actual Construction. The provisions of the charter of the city of St. Louis which requires the written consent of the persons owning two-thirds of the land fronting on a boulevard before the ordinance declaring it to be a boulevard can be repealed by another changing it into a street, refers to boulevards which have an actual physical existence. Where nothing has been done under the ordinance declaring a certain street to be a boulevard and directing the city counselor to cause same to be established, changed and widened as a boulevard, no attempt to widen it having been made, and no houses or sidewalks built with reference to its prescribed lines, it is not a boulevard in fact, and no consent of the abutting property owners is required as a precedent condition to its valid repeal.
    2. INTENT OF LAWMAKERS: Limiting Meanings of Words Used. In arriving at the intent of the lawmaker it is permissible to either expand or limit the meaning of his words, when that becomes necessary to make the law harmonize with reason.
    3. CHANGING BOULEVARD INTO STREET: Contractual Relation with Abutting Owner. In the absence of any evidence that the owner of land abutting on the street which the ordinance declared was changed into a boulevard and was to be widened, has accepted the ordinance and expended money in improving his property in harmony with its prescriptions as to building lines and sidewalks, no contractual relations exist between him and the city. There must be an acceptance of its provisions by some expenditure of money to create such a relation. Where the ordinance prohibited the erection of structures on private property nearer than fifteen feet of the boulevard’s lines, the mere refraining from erecting any structures within that line for two years after the ordinance was enacted does not establish such contractual relations.
    4. -: -: Condemnation Ordinance: Encumbrance. Whether or not the enactment of an ordinance requiring a street to be widened creates an encumbrance upon the abutting .land to be taken for such public purpose before any suit or other proceeding is instituted to effect such condemnation, the repeal of the ordinance does not violate a contract between the city and the owner of such abutting land or invade any of his constitutional rights, for the repeal of the ordinance removes such a cloud or encumbrance if one is created by it.
    Appeal from St. Louis City Circuit Court. — Eon. C. C. Allen, Judge.
    Reversed and remanded.

      William B. Baird and E. E. Pearcy for appellant.
    (1) Tbe passage of the ordinance authorizing the city counselor to cause Kingshighway to he established as a boulevard, is not a condemnation of the property-described in the ordinance. Mining Co. v. City of Joplin, 124 Mo. 138; City v. Hill, 116 Mo. 527; St. Louis v. Dorr, 145 Mo. 485; 3 Dillon on Municipal Corporations (5 Ed.), p. 1640, sec. 1036; 2 Lewis on Eminent Domain (3 Ed.), p. 911, sec. 505, and p. 913, sec. 506; Secs. 1 and 2, art. 6, Charter of St. Louis. (2) Whatever the English rule may be, the well established American rule is that no contractual relation is established by the mere passage of an ordinance authorizing the condemnation of property by a municipal corporation for public use and that the proceeding-may be dismissed before the property is condemned and paid for. Kansas City v. Railroad, 189 Mo. 245; Simpson v. Kansas City, 111 Mo. 242; Brewing Assn, v. St. Louis, 168 Mo. 44; Real Estate Co. v. St. Louis, 170 Mo. 31; Eyssell v. St. Louis, 168 Mo. 607; District of Columbia v. Hess, 35 App. D. C. 38; 28 L. R. A. (N. S.) 91 and note; Nixon v. Marr, 190 Fed. 915; 2 Lewis on Eminent Domain (3 Ed.), p. 1669-83, secs. 954-955; Charter of St. Louis, art. 6, secs. 1, 2, 9 and 10; 3 Dillon on-Municipal Corporations (5 Ed.), p. 1651, sec. 1044, and note 1; Art. 2, sec. 21, Constitution; Sec. 9762, R. S. 1909. (3) As the boulevard authorized to be established by the ordinance had not been established by law, the provision of the charter requiring the consent in writing of the owners of at least two-thirds in frontage thereon did not apply. Charter' of St. Louis, art. 6, secs. 1 to 11; Authorities cited above.

      W. B. & Ford W. Thompson for respondent W. B. Thompson.
    (1) Ordinance No. 22946 was a partial performance of a contract made with the taxpayers of St. Louis to establish, open, and construct Kingshighway boulevard, which contract is both express and implied: (a) Under section 1 of article 6 of the amendment to the charter of the city of St. Lonis authorizing the .construction of boulevards, (b) Under section 12 of .article 10 of the amendment to the Constitution of the .State adopted at an election held November 4, 1902, .authorizing the issuance of additional bonds by St. Louis, (c) By the terms and provisions of paragraph 1 of section 26 of article 3 of the charter, as amended on June 12, 1903, providing for the issuance of negoT liable bonds within the limits prescribed by the above .amendment of the Constitution of the State, (d) By the provisions of sections 6350-6354, R. S. 1899, and the amendments thereto, (e) Under the provisions of -Ordinance No. 22,366, entitled, “An ordinance authorizing the issue of bonds of the city of St. Louis, not ■exceeding, in aggregate, $11,200,000 in the respective .amounts and for the respective purposes herein spe■cifically stated, upon two-thirds of the voters of the ■city of St. Louis voting thereon and assenting thereto, .and the holding of an election for the purpose of submitting said proposition to the voters,” approved April 3, 1906, and in pursuance of the election held by the voters of the city on June 12,1906, in which nine ,• separate propositions for increasing the indebtedness <of said city, as set forth in said ordinance were ratified "by more than two-thirds of the qualified voters of the ■city, (f) By the provisions of Ordinance' No. 22,674, ■declaring the result of a special election called by Ordinance No. 22,366, held on June 12, 1906, and directing the issue of the bonds of the city of St. Louis in the sum of $11,200,000, as authorized by the vote at said election, (g) By the construction placed upon .all of these acts by the State and by the city of St. Louis, in the case of Haeussler v. St. Louis, 205 Mo. ■656. (h) By the assessment of taxes by the city of ‘St. Louis to pay the interest on said bonds. (2) The ^ordinance in terms provides for the establishment, ^opening and construction of said Kingshighway boulevard, in accordance with, section 1 of article 6 of the charter of the city of St. Louis, in this (a) By its name; (b) by its boundaries; (e) by its construction; (d) by its restrictions as to structures to be erected thereon, together with its restrictions of its building lines; (e) by the exclusion of any business house; (f) by the penalties for any violation of the provisions of the ordinance; (g) it gives authority to the city counselor to proceéd for condemnation in any manner authorized by law. (3) The repealing ordinance is by its terms in violation of the provisions of section 1 of article 6 of the charter, because: (a) Section 1 is an attempt to repeal the boulevard ordinance, without complying with the provisions of section 1 of article 6 of the charter, (b) Section 2, on its face, shows that Kings-highway boulevard, from Easton avenue to Penrose street, was established, and that said section recites that it is an effort to change a boulevard that was established into a street, (c) Section 3 is an attempt to define the lines of a public highway that was already established as a boulevard, but does not refer to any public highway that existed before the adoption of the boulevard ordinance, (d) Section 4 is simply a provision authorizing the city counselor to cause Kings - highway street to be opened according to law. (4) It appears affirmatively by the recitals of the Ordinance No. 22,946, known as the “Boulevard.Ordinance,” that the highway was already established between Easton avenue and Penrose street, and that such highway was changed by that ordinance into a boulevard, in compliance with section 1 of article 6 of the charter, and that Ordinance No. 24,220 did not, by repealing Ordinance No. 22,946, affect in any manner the highway that was already established before the passage of the boulevard ordinance: (a) because said ordinance on its face does nothing but repeal the boulevard ordinance; (b) it establishes a highway and does not in any manner attempt to change the former highway that existed before the adoption of the boulevard ordinance, and does not create a new highway, (e) If it does anything, it creates another highway where one is already established, without repealing the ordinance creating the first highway. (5) Section 1 of article 6 of the charter provides a right to the property holder to insist upon the assessment of damages for the repeal of the ordinance, and which, if denied, is a breach of the provisions of the charter, and entitles him to damages in the manner provided for in the charter: (a) for the loss of the boulevard; (b) for the delay of the city in proceeding with the boulevard ; (c) for the loss of the use of his property before the repeal of the ordinance; (d) for the damages resulting fiom the restrictions of building on his property; (e) for the damages for the taking of his property up to the building lines; (f) for the procedure of condemnation by the city to ascertain the damage. (6) The right created in section 1 of article 6 of the charter in favor of abutting property whenever a boulevard ordinance is repealed, is. analogous to the situation of a vendor and vendee of property as established in the English rule on this subject, where public authorities have announced their intention to take private property for public use. 3 Dillon (5 Ed.), sec. 1014, note 1, on page 1652; King v. Market Commrs., 1 K & Ad. 335; King v. Market Commrs./ Id., 327-332, 1. c.; Stone v. Railroad, 4 M. &. C. 124; Towney v. Railroad, 16 L. j. (N. S.) Eq. 282; Walker v. Eastern Counties Co., 6 Hare, 594; Haynes v. Eastern Counties Co., 1 Drew & 8. M. 426; In re Park Commrs.,, 56 N. Y. 148. (7) In every decision in this State construing the power of cities to exercise the right of eminent domain in opening streets, the general rule is that the project may be abandoned and the proceedings discontinued at any time before vested rights in others have attached. Such general rule does not apply where there is an express legislative enactment limiting the city’s power to abandon. Charter of St. Lonis, art. 6, secs. 4, 5, 8, 9, 11, 14; Nixon v. Marr, 190 Fed. 913; 3 Dillon (5 Ed.), sec. 1044; 2 Lewis on Eminent Domain (3 Ed.), secs. 954-955, pp. 1669, 1683; Kansas City v. Railroad, 189 Mo. 258; D. C. v. Hess, 35 App. D. C. 38, 28 L. R. A. (N.' S.) 91. (8) It is an elemental rule of law that all grants by the government must be strictly construed. This is especially true of the power of eminent domain, which is more harsh and peremptory in its exercise and operation than any other. 1 Lewis on Eminent Domain (3 Ed.), sec. 388; Belcher v. St. Louis Grain Co., 82 Mo. 121; Railroad v. Davis, 197 Mo. 669; Cox v. Tifton, 18 Mo. App. 430; Chandler v. Reading, 129 Mo. App. 63; Note in Woerner’s Revised Code, p. 386. And courts cannot dispense with the forms and conditions prescribed by law, on the notion that they are not essential. The very fact that they are prescribed makes them matters of substance. 1 Lewis on Eminent Domain, 397. And “if there remains a doubt as to the extent of the power, after all reasonable intendment in its favor, the doubt, should be received adversely to the claim of power.” 1 Lewis on Eminent Domain, sec. 388; Parker v. Adams, 55 N. J. L. 334.

      Eliot, Chaplin, Blayney & Bedal for respondent Hydraulic Press Brick Co.
   BROWN, J.

Action to widen street. From a judgment for defendants plaintiff appeals.

In the city of St. Louis there has existed for many years a thoroughfare extending from Easton avenue to Penrose street, known as “Kingshighway Boulevard,” which is not a boulevard in fact, but a street. Said street probably traverses other parts of said city, but that fact is not pertinent to the issues before us.

On March 27, 1907, the legislative department of St. Lonis enacted, in due form, an ordinance having for. its purpose the making of a real boulevard out of said Kingshighway Boulevard. This ordinance will hereafter be referred to in our opinion as the boulevard ordinance. Its purposes are quite fully indicated in the first and last sections thereof, which read as follows:

‘ ‘ Section One. The present Kingshighway boulevard from Easton avenue to Penrose street in the city of St. Louis, Missouri, is hereby changed into a boulevard to be known as ‘Kingshighway.’
“Section Seven. The city counselor is hereby authorized and instructed to cause said ‘Kingshighway’ to be established, changed and widened as a boulevard according to law.”

Other sections of the ordinance prescribe that the proposed boulevard shall be 150 feet wide, with sidewalks, driveways and parkways planted to shrubbery and trees, together with certain restrictions as to the character of travel upon said proposed boulevard. To secure a width of 150 feet it would have been necessary to condemn additional land fronting on said street.

Said ordinance also contains the following section regarding the construction of buildings near the proposed boulevard and the removal of other buildings:

“No structure of any kind whatever shall hereafter be erected on private property fronting upon saicb ‘Kingshighway’ between Easton avenue and Natural Bridge Road, nearer than fifteen feet from the respective east and west lines of said boulevard, and all existing structures of any kind whatsoever upon the private property fronting upon or adjacent to said ‘Kingshighway’ between the east and west lines of said highway and lines fifteen feet from and parallel to the said east and west lines, respectively, shall be removed therefrom.”

No buildings were in fact removed as- contemplated by tbe last quoted section of tbe ordinance, nor were any structures erected within fifteen feet of the proposed boulevard.

This boulevard ordinance continued in force nearly two years, during which time nothing was done by the city to convert the aforesaid street into a boulevard. No action was instituted by the city to condemn the additional lands called for, nor did the owners of said lands convey the same to the city or spend any money towards the construction of the proposed boulevard.

On March 17, 1909, a new ordinance was enacted by the city, which, in addition to repealing the boulevard ordinance, directed the widening and improvement of Kingshighway as a street between Easton avenue and Penrose street.

This last mentioned ordinance will hereafter be designated as the repealing ordinance, and it was under its provisions that the plaintiff city instituted the present action to condemn lands of defendants for the purpose of widening Kingshighway as a street.

It is conceded that the repealing ordinance was enacted in exact conformity with the charter of St. Louis, except that the persons owning two-thirds of the property fronting on. the proposed boulevard did not consent in writing to such repeal.

The appellant contends that no such consent was necessary to repeal the boulevard ordinance, because nothing had been done towards carrying said ordinance into effect.

Two of the defendants filed answers asserting that such consent of the property-owners was necessary to a repeal of the boulevard ordinance; that the enactment of the boulevard ordinance in 1907 increased the value of their property, and that its repeal, without the consent of the property owners, violated sundry provisions of the State and Federal constitutions.

The learned trial court sustained the contention of defendants, and gave judgment in their favor, dismissing the plaintiff’s petition, from which it prosecutes this appeal.

I. The charter of St. Louis provides for the establishment of boulevards-, the cost of which shall be taxed against the lands fronting thereon.

The provisions of said charter pertaining to the abandonment or discontinuance of boulevards read as follows:

“The Municipal Assembly may at any time repeal any ordinance establishing or opening a boulevard, or changing an existing street into a boulevarc ^ aild thereupon such boulevard shall be and become a street in all respects' like other streets of the city, and the property abutting thereon shall be relieved from the restrictions imposed by such ordinance; provided, however, that such ah ordinance shall not be repealed without the consent in writing of the owners of at least two-thirds in frontage of all the property fronting on such boulevard, nor unless such repeal shall be recommended by the board of public improvements; and, provided further, that the procedure provided in this article for the establishing and opening of boulevards'shall be pursued for the ascertainment and payment of damages and benefits resulting from such repeal; except that no compensation shall be allowed or paid to any person consenting to the repeal of such an ordinance.” [Sec. .1, art. 6, Charter of St. Louis.]

It is apparent that in the letter of the charter provisions above quoted there is strong support for the contention of defendants, but plaintiff asserts that to construe this charter according to its letter would be to nullify its spirit. That, in order to give the charter a construction in harmony with the intent of its framers, we should hold that the assent in writing of property owners to the repeal of a boulevard ordinance is only necessary after a boulevard has actually been established by the construction of driveways, sidewalks, parkways, etc.

Section 1 of the boulevard ordinance enacted in 1907 declares in express terms that Kingshighway “is -hereby changed into a boulevard;” but it would contravene the- law of physics to say that a mere legislative enactment speaks into actual existence a boulevard, the eontsruction which we judicially know always requires the expenditure of money and labor. The Municipal Assembly, however, recognized this axiomatic truth, for, in the 7th section of the same ordinance, it directed the city counselor “to cause said Kingshighway to be established, changed and widened as a boulevard according to law.” This last quoted section may be considered a confession on the part of the eity’s lawmakers of a lack of that omnipotent power to consummate such physical changes in a street as defendants assert were effected eo instanti by the enactment of the boulevard ordinance.

Defendants, in seeking to support their contention by section 1 of the boulevard ordinance (before quoted) seem to overlook the vital difference between words and acts. The physical acts of taking possession of a street and adjacent lands, constructing sidewalks, driveways, parkways, etc., are what create a boulevard. The mere enactment of the boulevard ordinance fell short of establishing such a highway.

Defendants are not supposed to have expended any money in securing the enactment of the boulevard ordinance. Therefore, no reason is apparent why the charter-framers should grant the property owners the power to obstruct its repeal before the contemplated boulevard was actually constructed, or work done or money expended thereon. On the other hand, if we concede the contention of plaintiff that the quoted provisions of the charter were only intended to apply in cases where boulevards have been constructed, a reason will at once appear. The granting of a right-of-way for such boulevard; the payment of special taxes or other outlays to construct driveways, sidewalks, parkways, and the removal of houses or other structures which may have been built on or too near the boulevard, will give the adjacent property-owners equities in the boulevard itself which might be swept away by changing the constructed boulevard into a street.

Our holding will be that the quoted charter provision which requires the consent of the persons owning two-thirds of the lands fronting on a boulevard before such boulevard may be changed into a street, refers to boulevards that have an actual physical existence. This construction limits the words of the charter relating to repeal, but we think the limitation is in accord with reason and justice. On this point we will say that, in construing laws, it is permissible in arriving at the intent of the lawmaker to either expand or limit the' meaning of his words, when it becomes necessary to make the law harmonize with reason. [Kane v. Railroad, 112 Mo. 34, l. c. 39; Keeney v. McVoy, 206 Mo. 42, l. c. 68.]

The rule of reason is quite firmly rooted in the jurisprudence of our State, and can be traced back to the early case of Fanny v. State, 6 Mo. 122, l. c. 142. In the case of State ex rel. v. Railroad, 105 Mo. App. 213, Smith, J., in speaking for the Kansas City Court of Appeals, said: “The reason of the law should prevail over its letter, and general terms should be limited in their application so as not to lead to injustice, oppression or an absurd consequence, the presumption beine that the Legislature intended no such anomalous results.” To the same effect are the cases of Verdin v. City of St. Louis, 131 Mo. 26; State ex rel. v. Turner, 141 Mo. App. 323; State ex inf. v. Talty, 166 Mo. 529, l. c. 560; and Westerman v. Supreme Lodge of K. P., 196 Mo. 670.

II. Two of the defendants, in their arguments and briefs, have cited numerous authorities to establish the alleged fact that by the very passa§"e °f the boulevard ordinance in 1907, the city has established contractual relations with the owners of land fronting’ on Kingshighway, which contractual relations cannot be abrogated by the city without the consent of the persons owning lots fronting on said street.

We are unable to see how any such contractual relations came into existence in the absence of evidence that defendants have accepted the boulevard ordinance of 1907 and expended money in carrying its provisions into effect.

Laws are sometimes enacted which establish contractual relations between a city or the State and one or more of its citizens, but such laws usually require specific acceptance, or an expenditure of money or labor by the party, or parties, for whose benefit they are enacted. In a general sense, no contractual relations spring up between a city and its citizens simply because its citizens obey a law which the city has enacted. These views find support in Judge Cooley’s work on Constitutional Limitations (7 Ed.), p. 402. The most that defendants claim to have done under the boulevard ordinance of 1907 is that they refrained from erecting any structures within fifteen feet of the proposed boulevard. They did not move any houses or expend any money in obeying said ordinance, and, therefore, they did not obtain any vested rights under it.

If a citizen obey a law and find that its enactment and enforcement has proven beneficial to him, he may not, solely for that reason, say to the lawmaker: “That law has helped me and you cannot repeal it without my consent.”

A large part of the brief filed by defendants ’ able counsel tends to support the proposition that a city, or other corporation, has no moral or equitable right to abandon a condemnation proceeding once begun. On this point we will only say that we find nothing in defendants ’ answer which may properly be classed as an equitable defense. In some of the cases cited the rule is announced that the enactment of a law requiring the land of an individual to be condemned for public purposes creates an encumbrance upon such land before any suit or other proceeding is instituted to affect such condemnation. [Cavenaugh v. McLaughlin, 38 Minn. 83; Foster v. Scott, 136 N. Y. 577; Graybill v. Ruhl, 225 Pa. St. 417.]

Conceding that the law is correctly announced in-the above quoted cases, we are unable to understand how they help the defendants in any respect. If the enactment of the boulevard ordinance in 1907 cast a cloud, encumbrance or restriction upon the lands of defendants, is it logical to say that the removal of such cloud, encumbrance or restriction by the repeal of the boulevard ordinance violated a contract or invaded defendants’ constitutional rights? The placing of a burden on an individual or his property does sometimes invade his constitutional rights, but lifting that same, burden from his shoulders cannot have any such effect. Therefore, we hold that on the admitted facts there is no constitutional question in this case.

In their briefs the parties to this action have referred to the issuance of bonds by the plaintiff city to defray- the expenses of constructing boulevards. Also’ to the conversion of other parts of Kingshighway into a real boulevard. No such facts are found in the pleadings or evidence upon which the judgment below is based, and we decline to consider them here.

Being convinced that the trial court erred in holding that the boulevard ordinance enacted in 1907 had not been repealed, and in dismissing the action, we reverse its judgment and remand the cause to be further proceeded with in harmony with the views herein expressed.

Lamm, G. JWoodson, Graves and Walker, JJ., concur; Faris and Bond, JJ., dissent.