author: FARIS, J.

text:
    THE STATE ex rel. J. H. EMMONS v. L. D. FARMER et al., Judges of County Court, and E. C. CAMPBELL, Clerk of County Court, Appellants.
    In Banc,
    June 30, 1917.
    1. TITLE TO ACT: Changing Compensation of Circuit Clerk: From Fees to Salary. A title to an act “changing the method of payment of salaries of circuit clerks” is sufficiently comprehensive to embrace provisions in the body of the act changing their compensation from fees to stated monthly installments payable out of the county treasury. Under the existing statute the maximum sums which could be annually retained by circuit clerks from their fees could properly be called “salary,” and hence the title was not misleading.
    2. INCREASE OF SALARY: During Term. The Act of 1915 fixing the salaries of circuit clerks at the same amounts they could retain in any one year from the fees collected by them, is not violative of the constitutional provision declaring that “the compensation of no state, county or municipal officer shall be increased during his term of office.” Even though the fees in some counties in prior years did not equal the amounts they were permitted to retain, yet if the act fixes their salaries at the same amounts they were permitted to retain at the time they were inducted into office, it does not increase their compensation, at least not to the point of being unconstitutional.
    3. TERM OF OFFICE: Reelection. An officer, reelected to a second term, is not bound to content himself with the salary fixed for his office at the time he was first elected thereto. Each official term stands for itself. The constitutional provision forbidding an increase or decrease of compensation during a term of office has reference to the term fixed by the statute only, and in no wise refers to the individual who may incidentally happen to be the incumbent for more than one term.
    Appeal from Callaway Circuit Court. — Hon. David H. Harris, Judge.
    Affirmed.

      Judson Sanderson, N. T. Gave and H. N. Eversole for appellant.
    (1) The circuit court erred in holding that section 1 of an act entitled “Salaries and Fees: Salaries of circuit clerks in certain counties,” approved March 22, 1915, p. 378, was valid and not in conflict with section 8 of article 14 of the Constitution of Missouri. Folk v. St. Louis, 250 Mo. 116; State v. Bland, 91 Kan. 160; State v. Raine, 49 Ohio St. 580; People v. McCord, 143 111. App. 28; Williams v. Garey, 19 Cal. App. 769: (2) The circuit court erred in holding that section 1 of said act was valid and not in conflict with section 28 of article 4 of the Constitution of Missouri. State v. Miller, 45 Mo. 495; State v. Weitzel, 130 Mo. 616; St. Louis v. Wortman, 213 Mo. 139; State v. Per-singer, 76 Mo. 347; State ex rel. v. Heege, 135 Mo. 112; Cooley on “Constitutional Limitations” (7 Ed.), p. 205. (3) The circuit court erred in holding that section 1 of said act applied to any circuit clerk of any county mentioned in the act who was an incumbent of said office on and prior to July 1,1915. Folk v. St. Louis, 250 Mo. 116.

      Frank M. McAllister, Attorney-General, S. P. Howell. Assistant Attorney-General, De Witt C. Chastain, Alex. Z. Patterson, J. R. Baker and Finley & Sapp for respondent; James E. Boggs of counsel.
    (1) The act in question is not in conflict with section 8 of article 14 of the Constitution of Missouri, (a) Courts will not lightly declare statutes unconstitutional. There is a strong presumption of their constitutionality and their invalidity must appear beyond a reasonable doubt. Greene County v. Lydy, 263 Mo. 87; State ex rel. v. McIntosh, 205 Mo. 602. (b) The act in question, Laws 1915, p. 378, does not change the amount of compensation fixed by the prior law, Laws 1913, p. 703. People v. Gaulter, 149 HI.'39; State ex rel. v. Nye, 135 N. W. (Wis.) 126. (c) It does not appear from the record that relator did not earn the full $2000 allowed him by the Act of 1913, and if he did earn that amount, he will be entitled to it, even though it may be collected by his successor. To say that relator’s compensation has been increased, in any sense, is mere conjecture. Pugh v. Evans, 31 Mo. App. 290; Lycett v. Wolff, 45 Mo. App. 489; Allen v. Cowan, 96 Mo. 193; Thornton v. Thomas, 65 Mo. 276; State ex rel. v. Nye, 135 N. W. (Wis.) 126. (2) The act in question is not in conflict with section 28 of article 4 of the Constitution of Missouri. (a) Appellants’ argument on this point assumes that the compensation of circuit clerks has been increased, (b) While this provision of the Constitution is mandatory it should be liberally construed, and mere generality of title will not vitiate an act, unless it shows a design to mislead. State ex rel. v. County Court, 128 Mo. 427; 'State v. Doerring, 194 Mo. 398; Ferguson v. Gentry, 206 Mo. 189; State ex rel. v. Vandiver, 222 Mo. 206; O’Connor v. Transit Co., 198 Mo. 622.
   FARIS, J.

This is a proceeding by mandamus, whereby it is sought to compel defendants, who are the judges of the county court of Callaway County, Missouri, and the clerk of said court respectively, to issue to relator a warrant on the county treasurer of said county for the sum of $166.66, in payment of relator’s salary as clerk of the circuit court of Callaway County for the month of August, 1915. The' alternative writ issued herein by the court nisi was upon trial therein made peremptory and defendants appealed.

The facts are few and simple and touching them there is no dispute; they run substantially thus: Relator is now and has been since the 1st day of January, 1911, clerk of the circuit court of Callaway County. He is now serving his second term as such clerk; the term for which he was .first elected having expired on the 31st day of December, 1914. On the 1st day of January, 1915, having been reelected, relator duly entered upon his second term as such circuit clerk.

It is conceded by the pleadings that pursuant to the method pointed out by statute for ascertaining the population of Callaway County, said county contains between twenty-five and thirty thousand population. At the September term of the county court of Callaway County, relator, in all things following the provisions of an act of the Legislature, passed in 1915, and approved March 22,1915, and which act pursuant to the express provisions thereof took effect July 1, 1915, presented to the county court his account for salary as circuit clerk for the month of August, 1915, accompanied by reports in proper form. Defendants refused to order, or to issue and sign, a warrant for relator for such salary on the ground that the Act of 1915 which had put all circuit clerks of this State upon a salary basis of compensation, was unconstitutional.

The act in question is entitled: “An Act changing the method of payment of salaries of clerks of circuit courts, except in any county wherein the clerk of the circuit court is ex officio recorder of deeds of said county; and provided further that the provisions of this act shall not apply'to any county which now contains or may hereafter contain a city of 75,000 inhabitants or more, or to any county which now contains or may hereafter contain eighty thousand inhabitants and less than one hundred and fifty thousand inhabitants in which circuit court is held in two or more places in said county, providing for the appointment and payment of deputies, and requiring clerks to pay into the county treasury all fees collected by them.” [Laws 1915, p. 378.]

The above act in section one thereof provides in brief substance that clerks of the several circuit courts of the several counties of this State shall annually receive for their services in lieu of all fees, a certain specified salary, based upon the population of the given county, and concretely provides in cases of all counties having a population such as Callaway County has, that the circuit clerk thereof shall receive the sum of $2,000 per annum. There are provisions in section 2 of said act for the appointment and payment of deputy clerks, which however have no relevancy here. Section 3 of said act provides that the'salaries of the circuit clerk and his deputies shall be paid by warrants drawn upon the county treasury in monthly installments, at the end of each month, and that the circuit clerk and his deputies shall present their accounts to the county court and such court shall draw its warrant upon the county treasury accordingly. It is provided by section 4 of the act that all fees heretofore retainable by the several circuit clerks as and for their compensation, shall be 'duly collected by them and paid over monthly to the county treasurer.

All of the above facts are either conceded by the pleadings, or they are admitted by the respective parties in the briefs filed. ■ It is contended by defendants, who are the appellants here, that the Act of 1915, pursuant to which relator demanded payment from the county, is void, because it is in violation of the provisions of section 8 of article 14 of the Constitution and of section 28 of article 4’ thereof. These are the only points made or urged upon us and to them alone will our attention be directed in the subjoined opinion. The question whether mandamus is upon the facts a permissible remedy was not raised below, nor is it raised here. Both sides in both courts conceded tacitly its applicability; hence we take the case as it comes up to us, without passing upon the question.

I. It is contended that the Act of March 22, 1915, is unconstitutional for two reasons: (a) The title thereof is not expressive of the contents of the act, and (b) it increases the compensation of clerks of the circuit courts during the terms for which they are elected. It is plain that if either contention he found tenable this case must be reversed.

The constitutional provision first above invoked is a familiar one and, stated in substance, it prohibits the passing of any bill containing more than one subject, “which shall be clearly expressed in its title.” [Constitution, sec. 28, art. 4.] So much of the title of the act as the contention made renders pertinent, reads thus: “An act changing the method of payment of salaries of clerks of circuit courts,” etc.

Confining the contention to yet narrower limits, it is urged by defendants that the act does not in fact change the method of payment of the salaries of circuit clerics, because before the act passed they had no salaries, but what it actually does is to change their compensation; that is, concretely applied to the facts here, it raises the amount of compensation of circuit clerks, and therefore, since before the passage of this act their pay was compensation and not salary, the nse of the latter word in the title of the act is misleading.

It is obvious that counsel seek to draw a distinction between remuneration by fees, which they somewhat arbitrarily denominate “compensation,” and payment in cash in regular monthly installments, which they denominate ‘ ‘ salary. ’ ’ Therefore they urge, since under the law existing when the Act of 1915 was passed the remuneration paid to circuit clerks was not salary but was compensation, that is, fees, the use of the word salary was not properly descriptive of the contents and purposes of the latter act.

Obviously, if the Legislature had in mind the maximum sums fixed'by statute (Laws 1913, p. 702), which could be annually retained by circuit .clerks, then such remuneration so fixed could properly and without misnomer be called a salary. For we have had this word salary defined for us in this State thus: “ £A periodical allowance made as compensation to a person for his official or professional services or for his regular work.’ [Standard Diet.] ‘Salary is regarded as a per annum compensation.’ ” [Henderson v. Koenig, 168 Mo. l. c. 367.] The Legislature manifestly held in mind, as it had the right in law to do, that the statutory provision existing when relator entered upon his current term of office was, considered as a whole, “per annum compensation.” So, the title was not misleading so far as concerns this specific contention.

Moreover, the language of the Constitution includes both fees and salary under the comprehensive term compensation as witness this"language: “The compensation or fees of no state, county or municipal officer shall be increased during his term of office. ” [Sec. 8, art. 14, Constitution.] Clearly fees are not salary; so if the provision of the section quoted .supra includes salary at all — and no one would be so bold as to deny that it does — then the word compensation is the generic term and includes as used in the above provision of the Constitution, salary, fees, pay, remuneration for official services performed, in whatever form or manner, or at whatsoever periods the same may be paid. As stated, no one will deny that tbe word ‘ compensation, ’ ’ as used in tbe above provision, includes salary. We have time and again tacitly so ruled by considering without question cases in which that form of remuneration which we call salary was alone involved. [State ex rel. Rumbold v. Gordon, 238 Mo. 168.] It is clear that the makers of our Constitution used the word compensation as the comprehensive generic term, and thereafter added the word “fees” as an inclusive and explanatory second-thought, although remuneration by fees was already ixlcluded by the use of the term compensation, as witness the punctuation, which lacks the comma after the word compensation.

Counsel for defendants ask us to rule whether the title to the Act of 1915, apposite parts of which we quote above, fairly informed the members of the Legislature that they were considering a bill which changed the compensation of the circuit clerks in this State, and counsel argue from the question they thus formulate that a lawmaker might have no objections to changing the method of payment of an officer’s salary, but yet entertain serious objections-to an increase of such officer’s compensation during the term for which he was elected. It is fairly obvious that this specific contention begs the other constitutional question, which we have found to be lodged in the case. For if the effect of the act is to change the compensation by raising it during the term for which relator wás elected to the office of clerk of the circuit court, then of course, by reason of the other contention of unconstitutionality made, the act is wholly void as to relator and as to all incumbents of these offices standing in like position with relator. But the Legislature must evidently have believed, and relator urges that view on us, that the act did not increase the compensation of the several circuit clerks, but that what it does, and all that it does, is to change the method of paying such compensation from the fee system to a fixed monthly salary. From this it will be seen that this contention is well taken, according as we shall conclude that the other one is likewise well taken, and there is therefore so far as this specific contention goes, bnt one question in the case.

II. .Coming to the second and decisive constitutional question reserved we have to ascertain and rule whether the act here under discussion did increase the compensation of relator and of other circuit clerks similarly situated during their terms.

It is admitted that Callaway County has a population of between 25,000 and 30,000. Relator qualified as circuit clerk in his current term on the first day of January, 1915. When he so qualified his compensation was fixed upon a fee basis and he was allowed to retain the fixed sum of $2,-000 from his fees as clerk of the circuit court if he earned so much; the sum so allowed to be retained being then governed by the below statute, to-wit:

“The aggregate amount of fees that any clerk under articles 2 and 3 of this chapter shall be allowed to retain for any one year’s services shall not in any case exceed the amount hereinafter set out. . .'In all counties having a population of twenty-five thousand and less than thirty thousand persons, the clerks shall be permitted to retain two thousand dollars for themselves, and be allowed to pay for deputies or assistants not exceeding fifteen hundred dollars. ’ ’ [Laws 1913, p. 702.]

Under the act here attacked relator’s compensation, was commuted to the sum of $2000 per annum in cash, payable by the county monthly in lieu of all fees, which were thereafter payable to the county, pursuant to the below provision, to wit:

“The clerks of the circuit courts of this State shall receive for their services, annually, the following sums: In counties having a population of 7000 persons and less than 10,000 persons, the sum of eleven hundred dollars; in counties having a population of 10,000 persons and less than 15,000 persons, the sum of twelve hundred and fifty dollars; in counties having a population of 15,000 persons and less than 20,000 persons, the sum of sixteen hundred dollars; in counties having a population of 20,000 persons and less than 25,000 persons, the sum of nineteen hundred and fifty dollars; in counties having a population of 25,-000 persons and less than 30,000 persons, the sum of two thousand dollars.” [Laws 1915, p. 378.]

While defendants concede that the amount of cash salary relator is entitled to receive under the provisions of the Act of 1915, does not exceed but exactly equals the amount he was entitled to retain under the act of 1913, out of his fees collected, yet they contend that unless the fees which he actually earned and collected amount each year to a sum equal to the $2000 yearly cash salary, the provisions of the Act of 1915 are unconstitutional, for that they in fact bring about an increase in his compensation during the currency of a given term.

In passing we note that it seems to be' hinted that relator having already served one full term beginning January 1,1911, and having been re-elected to a second term, is bound during such second term to content himself with the salary fixed for his office when he was first elected thereto for his first term. It is so plain that this view is wrong that we but pause to state the contention and content us with so characterizing it. Each official term stands by itself. The constitutional provision forbidding an increase or decrease of compensation during a term of office has reference to the period fixed as a term by statute only, and in no wise refers to the individual who may incidentally happen to be the incumbent for more than one term.

So, while it is conceded as the figures indicate, that there has been no increase in the stated amount fixed by law as the pay of a circuit clerk during the current term of this relator, yet it is urged there has been an increase in fact, unless the fees collected each year amount to as much as $2000, regardless of the statutory provision existing when relator took office of retaining as his annual compensation $2000 out of the fees earned and collected.

The Act of 1915 (Sec. 6, p. 380, Laws 1915) went into effect on the 1st day of July, 1915. This instant action seeks to compel payment of relator’s salary for the month of August, 1915. There was no possibility of making proof, and none was made, as to what the compensation of relator was for any one year of his current term, for only six months of that term had elapsed when the law took effect, and only eight months thereof had elapsed when this action was begun. We could well dispose of defendants’ contention on the ground that even if it be as a matter of law well taken, there is yet no proof of the fact on which it is bottomed and so they must lose. But such a view would be narrow and unprofitable and but put off the day of certain adjudication without definitely settling the important questions involved. As persuasive evidence defendants did put in proof that in a prior term of office just preceding the current one, relator collected fees which he retained for his services as circuit clerk in the following sums for the years named: For the year 1911, the sum of $1056.42; for the year 1912, the sum. of $1507.76; for the year 1913, the sum of $1689.04, and for the year 1914, the sum of $1840.84. These figures, competent only because admitted by the pleadings, prove but little. The best that may be said of them is that they are mildly persuasive. For, since all of us have been lawyers in active practice, we judicially notice the delays incident under our practice, statutes and system of appellate review between the earning of fees by a circuit clerk and his actual collection thereof. Payments of costs, which include the fees of circuit clerks, are delayed in a large number of cases till an appellate court has passed finally upon the case. Hence it is (and the annually increasing collections of relator above set forth clearly illustrate this fact), that the yearly sums collected by a circuit clerk increase annually till a maximum is reached; such increase being due to the belated coming in of fees earned, but not collected, till after the determination of appeals. Sometimes we know fees are not actually collected by a circuit clerk till years after he has gone out of office, though actually earned by him when he was an officer. We have held that he could apply an excess collected over the statutory limit in one year to a deficiency under that limit for another year (Allen v. Cowan, 96 Mo. 193), which holding accentuates the thought that the Legislature was not far wrong in denominating as salary the annual statutory stipend of a circuit clerk.

The Act of 1915 putting circuit clerks upon a salary basis, was, it is plain, designedly enacted so that the several salaries fixed thereby and made payable monthly in cash should exactly equal the amounts fixed by statute in 1913, as the amounts which could be retained by each circuit clerk as his annual compensation out of the fees he earned. As we gather the position and contention of defendants, they concede that in all cases and counties wherein the fees actually earned by the several circuit clerks amount in any one year to the sum fixed as their salaries by the Act of 1915, the act is constitutional. At least, if defendants do not concede this, the logic of their contention concedes, it for them. The result of such a construction is that some circuit clerks in some counties which contain from twenty-five to thirty thousand population would get the salary fixed by the Act of 1915 some years, and get fees other years, and it would be impossible ever to tell what method of payment should be employed, or how much compensation the circuit clerk was to get till the end of the year. Likewise in some of the counties these officers would be paid' salaries and in others still remain upon a fee basis of compensation. Such results could not have been in legislative contemplation; since two cardinal canons of construction upon the attack of unconstitutionality confront us: One of these is that we must be convinced beyond a reasonable doubt that an act is void under the Constitution before we are warranted in so declaring it (State v. Baskowitz, 250 Mo. 82); the other is that where one construction of a statute would render the act absurd and unenforceable and the other the converse, we are required to adopt the latter rather than the former. [State ex rel. v. Gordon, 266 Mo. l. c. 411.]

Our attention is directed toward the late case of Folk v. St. Louis, 250 Mo. 116, as furnishing authority for the position defendants take here. We do not think thé Folk case is at all persuasive. In a way that case is the antithesis of this. There an act was passed during a certain current term increasing the salary of the circuit attorney of the City of St. Louis to $5000 per year. The acts in force when he took office gave this official $4000 payable by the city and $350 payable by the State, a total fixed salary falling short of the amount fixed by the act attacked. 'It was urged that as other services were performed wherein the services performed were worth more than the difference, there was in fact no increase. We held against this contention. So that case furnishes no authority for this.

We are constrained therefore to bold that the Act of 1913 (Laws 1913, p. 702) fixed the basic compensation for clerks of the circuit courts and that the amounts severally set forth in that act as the sums in fees which such clerks could each retain as their several compensations, constitute the salaries from which we are to determine whether the Act of 1915 increases such compensation. We have seen that the amounts are the same in counties of the class here in question and conclude that as to the relator there has been no increase and the act is constitutional. Let the judgment of the learned judge nisi be affirmed.

All concur.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    DELMAR INVESTMENT COMPANY et al. v. EDWARD G. LEWIS et al., Appellants.
    In Banc,
    June 30, 1917.
    1. SUIT ON BOND: Proof of Damages: Indemnity or Covenant? If tlie principal in the bond thereby obligated himselr to hold the obligees harmless and to pay as and when required by law all special taxes levied by a city against specified property for improving a certain boulevard, the obligation is not a contract of indemnity under which damages must be sustained and proven before a recovery on the bond can be had, but an affirmative covenant on which a right of action accrues on failure of the obligors to pay.
    2. -: To Pay Special Tax Bills: Prima-facie Evidence. In a suit on a bond • whereby the obligors covenanted to hold the obligees harmless and to pay all special tax bills levied by a city against specified property for street improvements, the tax bills are prima- ‘ facie evidence of the regularity of the proceedings underlying their validity. The statute malting the tax bills prima-facie evidence of certain things is not to be limited in its application to suits brought by holders of the tax hills against the owners of the property.
    3. SPECIAL TAX BILLS: Presumption: Construction of Statute. Section 9408, Revised Statutes 1909, making special tax bills issued for a public improvement, in any action thereon, prima-facie evidence of certain things, is to be liberally construed, and the probative force of such tax bills, when admitted in evidence, is accompanied by the presumption indulged in favor of the authorized acts of public officers and of the validity of public records.
    4. STREET IMPROVEMENT: Defective Resolution of Council. A resolution of the board of aldermen declaring “that it js deemed necessary to improve Delmar Boulevard in the city of University City, between the easterly city limits and the west line of Oberlin Avenue, by bringing to grade and paving and curbing the same, such curbing to be set out into the street beyond the sidewalk, and the board of aldermen hereby declares such work of improvement necessary to be done, and that in its judgment and opinion the general revenue fund of the city is not in a condition to warrant an expenditure therefrom for bringing the said • boulevard to the established grade,” is defective, in that it is not so framed as to impart definite information concerning the proposed work and does not meet the requirements of the mandatory statute (Sec. 9411, R. S. 1909) which declares that the resolution, among other things, “shall declare such work or improvement necessary to be done.” [Following Brick Const. Co. v. Gentry County, 257 Mo. 1. c. 395; overruling Delmar Co. v. Lewis, 180 Mo. App. 22; approving City of Kirksville v. Coleman, 103 Mo. App. 215; and distinguishing Gist v. Construction Co., 224 Mo. 369.]
    ' Appeal from St. Louis City Circuit Court.— Mon. Eugene McQuillin, Judge.
    Reversed.

      Fauntleroy, Cullen & May, Anderson, Gilbert, Mayden & Levi and John A. Blevins for appellants.
    (1) The bond sued on was one of indemnity, and as there was no evidence of the payment of any money by respondents or that they were damaged, they could at most recover only nominal damages. Walker v. Deaver, 79 Mo. 664; Hunt v. Marsh, 80 Mo. 396; Kellog v. Malin, 62 Mo. 433; Burén v. Hubbel, 54 Mr. App. 617; Bartlet v. Tinsly, 175 Mo. 329. (2) The court erred in holding that the tax bills in,question were prima-faeie evidence of the regularity of the proceedings for such special assessments and the validity of the tax bills. See. 9408, R. S. 1909. (3) It was not shown by the evidence that the city of University Oitv or the board of aldermen had taken the necessary legal steps to authorize the issuance of the special tax bills and the same were therefore void, (a) The resolution of the board of aldermen was fatally defective. It did not give the board jurisdiction over the improvement of said street, (b) Said resolution was defective in that it did not set forth a description of the material and the kind of work to be done in the improvement of the street in question, and failed to contain or refer to any specifications for said work, (c) Said resolution included the cost of bringing said street to the established grade, at the expense of the property owners, without describing the work of bringing such street to the established grade, as required by Sec. 9410, R. S. 1909. Smith v. Westport, 105 Mo. App. 221; Kirksville v. Coleman, 103 Mo. App. 215. (d) Said resolution failed to describe the proposed work or to give any description of the materials to be used or any intimation of the cost. Coulter v. Construction Co., 131 Mo. App. 230; Kirksville v. Coleman, 103 Mo. App. 215. (e) The said resolution contained no specification or reference thereto, whereby the property owners might inform themselves as to said improvement and its cost, (f) There is no evidence that the board of aldermen notified the property owners by publishing said resolution, as required by See. 9411, R. S. 1909. (4) There was no evidence that the board of aldermen received or did not receive any protests against said improvement by the property owners. There is no finding by the board of aldermen that a majority of the property owners failed or neglected to file a protest against said improvement, as required by the statute.

      Boyle & Priest, W. B. Priest and Charles T. Abeles for respondents.
    (1) The bond on which this action is brought contains an express covenant to pay all taxes levied against respondents’ property. It is not, therefore, merely an indemnity bond, bnt one upon which liability arises immediately its conditions are broken, regardless of whether or not respondents have paid the tax bills- or have been damaged by reason of appellants’ failure to do so. Ham v. Hill, 29 Mo. 275; Bank v. Leyser, 116 Mo. 51; Loewenthal v. McElroy, 181 Mo. App. 399; Pierce v. Plumb, 74 111. 326; Shattuck v. Adams, 136 Mass. 34; Trust Co. v. Surety Co., 214 Pa. St. 163. (2) The special tax bills were properly introduced in and received as evidence, (a) Sec. 9408, R. S. 1909, is operative in the case at bar. Fruin v. Meredith, 145 Mo. App. 605; Gist v. Construction Co., 224 Mo. 378. (b) The legal, relationship of appellants and respondents is similar to that of principal and surety, and the respondents are entitled in this action to all the rights and remedies of the holder of the tax bills. 32 Cyc. 20; Rubey v. Watson, 22 Mo. App. 434. (c) The tax bills are required by law to be issued. They are, therefore, admissible to prove that which they purport to show, and being once admitted they are prima-facie valid.' Ronkendorff v. Taylor’s Lessee, 4 Peters (U. S.), 349; Paving Co. v. Ullman, 137 Mo. 568; State ex. inf. v. Heffernan, 243 Mo. 453. (3) The tax bill cannot be presumed invalid, but must be proved so by affirmative evidence. The evidence touching upon the preliminary procedure failed to reveal the defects urged by the appellants against the tax bills, (a) The statutes do not require the work other than grading to be described in the resolution, and it would be a piece of judicial legislation so to hold. Lexington ex rel. v. Bank, 130 Mo. App. 695. (b) The failure to describe the work of bringing the street to grade is, in this instance immaterial. Haag v. Ward, 186 Mo. 325. (c) The publication of the resolution is not only presumed, but was satisfactorily established.
   WALKER, J.

This is a suit on a bond made by Edward G. Lewis as principal and James F. Coyle as surety, to the plaintiffs. The conditions of same are that the makers will hold the plaintiffs, the Southern Real Estate & Financial Company and Charles J. Celia and their property on the north side of Delmar Boulevard within the limits of University City harmless against and pay as and when payable all the special taxes that may be levied by the said nity of University City against the property aforesaid called the “Delmar Eace Track” for the grading, construction, paving and improvement of Delmar Boulevard within the limits of said University City, including the curbs and sidewalks. The breach assigned is the failure of the obligors to pay two certain tax bills alleged to have been levied against the property in question, for the grading, construction, paving and improvement of Delmar Avenue, one of said tax bills being in the sum of $5260.32 and the other for $321.28, each hearing interest at the rate of eight per cent, per annum from September 30, 1910. The petition alleges that upon the completion of the work August 31,1910, University City by its officers issued and delivered to the Fruin-Colnon Construction Company these tax bills; that notice of the issuance of same and demand for their payment was made upon plaintiffs by said Construction Company September 13, 1910, and that the principal due thereon, with interest as stated, was by virtue of the levying of such tax bills justly due and payable; that payment has been demanded and refused; that said tax bills became and are by their issuance and delivery valid and subsisting liens upon the property. Judgment was demanded for the penalty of the bond, $25,000, and that execution issue for $5491.60, with interest at eight per cent per annum from September 30, 1910.

The answers were general denials.

A trial before a court and jury resulted, under the direction of the court, in a verdict in favor of plaintiffs in the sum of $6098.01 and costs, from which defendants appealed to the St. Louis Court of Appeals, which affirmed the judgment of the trial court (180 Mo. App. 22), but certified the case here for final determination on the ground that “the Kansas City Court of Appeals had placed a different construction on sections 9410 and 9411, Revised Statutes 1909, than that of the St. Louis Court of Appeals in City of Kirksville ex rel. v. Coleman, 103 Mo. App. 215, and the Supreme Court in Gist v. Construction Co., 224 Mo. 369.”

I. It is contended that the obligation herein is one of indemnity alone and that proof of damage must precede a right of recovery. The principal, Lewis, obligated himself by this undertaking to hold the plaintiffs harmless and to pay as and when required by jaw j-pe Spec¿ai taxes levied by the said city against the property specified for improving Delmar Boulevard. This constituted a promise to pay the special taxes when due and thus discharge the obligees. An obligation of this character is not a contract of indemnity under which damages must be sustained before recovery can be had, but an affirmative covenant on which.a right of action accrues on failure to pay. [Salmon Falls Bank v. Leyser, 116 Mo. l. c. 74; Loewenthal v. McElroy, 181 Mo. App. l. c. 405.]

II. It is insisted that the trial court erred in holding that the tax bills were prima-facie evidence of the regularity of the proceedings underlying their validity. This contention arises from the construction given the statute in relation to the probative force of special tax bills, which is as follows:

Such special tax bills shall, in any action thereon, be prima-facie evidence of the regularity of the proceedings for such special assessment, of the validity of the bill, of the doing of the work and of the furnishing of the materials charged for, and of the liability of the property to the charge stated in the bill.” [Sec. 9408, R. S. 1909.]

Thus construed this statute is limited in its application to suits brought by holders of such tax bills as are here under consideration, against the owners alone of the property. We are not impressed with the force of this contention. This statute is a part of the general code relative to cities of the fourth class and has particularly to do with public improvements therein. Such laws are looked upon ■with a kindly eye by the courts, or to put it on stereotyped phrase, are liberally construed. [Gist v. Construction Co., 224 Mo. l. c. 378; Fruin v. Meredith, 145 Mo. App. l. c. 605.] This construction is not limited merely to statutes which have immediately to do with the enforcement of special tax bills themselves, but, as illustrated in the Gist case, supra, which was an action for injunction relief, the rule is applied generally to statutes which have to do with public improvements. Limited, therefore, as is the letter of the particular statute (9408), “to actions on tax bills,” under the rule, that such laws should be liberally construed, the trial court’s classification as to the nature of such bills as evidence was not error. Furthermore, these bills were required by law to be issued and they were registered and attested by the proper officer. [Sec. 9406, R. S. 1909.] When admitted in evidence their probative force is accompanied by that presumption indulged in favor of the authorized acts of public officers and of the validity of public records. Confirmatory of this conclusion we said in State ex inf. v. Heffernan, 243 Mo. l. c. 453:

“No proposition is better settled or more universally recognized than that every intendment of law is made in favor of the regularity of corporate acts and proceedings. Where records are kept of municipal acts and proceedings the law is clearly defined that the same are receivable in evidence of the truth of the facts recited; and it would seem to be a rule that when so produced they establish themselves; because they are made by accredited agents, are of a public nature and notoriety, and are usually made under the sanction of an oath of office.”

As was said in argument by plaintiffs: Such bills are not only evidence of indebtedness; they are official declarations in documentary form that the property therein has been taxed, and are to be looked upon with favor as public documents and hence entitled to be self-proving. If, however, a doubt can arise as to the evidentiary character of these bills to prove the regularity of the proceedings, substantial proof was made in addition to establish that fact by a showing that the bills were regularly issued, that the material necessary for the performance of the work was furnished, that the work was performed and that the property was liable to the charge.

III. It is contended that the resolution passed and published by the board of aldermen as a requisite precedent condition to the letting of the contract for the improvement of the boulevard, was defective. compjajn^ urges that the purpose of this resolution under the statute was to inform the resident owners of property liable to taxation of the nature of the proposed improvement, that they might be enabled to intelligently protest against the same. The resolution is as follows:

“Resolved. That it is deemed necessary to improve Delmar Boulevard in the city of University City, between the easterly city limits and the west line of Oberlin Avenue, by bringing to grade and paving and curbing the same, such curbing to be set out into the street beyond the sidewalk, and the board of aldermen hereby declares such work of improvement necessary to be done, and that in its judgment and opinion the general revenue fund of the city is- not in a condition to warrant an expenditure therefrom for bringing the said boulevard to the established grade. ’ ’

The statute (Sec. 9411, R. S. 1909) in regard to the adoption and publication of this resolution, provides among other things that it “shall declare such work or improvements necessary to be done.” The statute is mandatory and to hold that its purpose was other than for the information and guidance of those whose property was to be affected would render it practically useless.' It should therefore be so framed as to impart some definite information concerning the proposed work. This resolution does not meet these requirements, and hence, in conformity with our ruling in Brick Const. Co. v. Gentry County, 257 Mo. l. c. 395, in which Williams, J., speaking for the court declared a like indefinite resolution to be insufficient, we so hold here. This conclusion is not in harmony with that reached by the St. Louis Court of Appeals in Delmar Co. v. Lewis, 180 Mo. App. 22, and that opinion in so far as in conflict herewith is overruled and the opinion of the Kansas City Court of Appeals in City of Kirksville v. Coleman, 103 Mo. App. 215, is approved. Whether the work to he done is in the making of a street or the improvement of one already made, our holding does not contemplate that the resolution shall embrace the minutiae of plans and specifications, but instead of meaningless generalities that it shall give some definite practical information of the nature and character of the proposed work to those entitled to be informed thereon that they may govern themselves accordingly.

This ruling is not in conflict with that in Gist v. Construction Co., 224 Mo. 369. In that case.the statute construed (Laws 1903, p. 69) concerned street improvements in cities of the second class, and was not only different in phraseology but in its requirements from that now under consideration. While we approve the reasoning in the Gist case as to the manner statutes regulating public improvements should be generally construed, the reason for the specified requirements in the resolution here do not exist in the statute construed in the Gist case.

IV. If, as we hold, the resolution did not meet the requirements of the law, it is not necessary to determine whether there was any affirmative showing that no protests were filed. If the resolution had been sufficient then the presumption as to the regularity of the proceedings of the board of aldermen as a public body, might, in the absence of proof to the contrary, as held by the St. Louis Court óf Appeals (180 Mo. App. l. c. 31), be regarded as persuasive evidence that no protests were filed.

Other contentions made by defendants, not having been properly preserved for review, must be disregarded. Our holding as to the insufficiency of the resolution required by section 9411, Revised Statutes 1909, necessitates a reversal of this case and it is so ordered.

All concur except Woodson, J., who dissents, and Bond, J., not sitting.