author: GRAVES, J.

text:
    THE LITTLE RIVER DRAINAGE DISTRICT, J. H. HIMMELBERGER et al., Appellants, v. T. E. TOMLINSON et al.
    In Banc,
    July 2, 1912.
    DRAINAGE DISTRICT: Extending Limits: Ancillary Proceeding: Jurisdiction. The circuit court of the county to which a cause was removed by change of venue, from .the county in which the proceeding for organizing and incorporating the drainage district was begun, has jurisdiction of an ancillary proceeding to enlarge the district to include other wet and overflowed adjacent lands, begun after the court to which the cause was taken had organized the district. The change of venue carried with it the entire cause, and left nothing to be done by the court from which the change was taken.
    Appeal from Butler Circuit Court. — 'Hon. J. C. Sheppard,' Judge.
    Reversed and remanded;

      Oliver <& Oliver for appellants.
    (1) The General Assembly of this State has the inherent right to incorporate drainage districts directly. It also has the power to delegate to the circuit, courts of this State, as its agent, the right to incorporate such districts. It has the right to designate what' particular courts in the State should be possessed with, the power and jurisdiction of incorporating drainage-districts, and how long 'such courts should retain jurisdiction over the corporations thus created. St. Louis v. Russell, 9 Mo. 507; St. Louis v. Allen, 13 Mo. 400; Giboney v. Cape Girardeau, 58 Mo. 141; Kelley v. Meeks, 87 Mo. 396; Levee Co. v. Harden, 27 Mo. 495; Columbia Bottom Co. v. Meier, 39 Mo. 53; Morrison v. Morey, 146 Mo. 561; Land & Stock Co. v. Miller, 170 Mo. 240; Pryor v. Construction Co., 170 Mo. 451; Laws 1859, p. 60; Laws 1879, p. 132; Sec. 5496, R. S. 1909; Laws 1905, p. 190; Drainage District v. Railroad, 139 S. W. 330; Ross v. Board, 1 L. R. A. (N. S.) 431; Hagar v. District, 66 Cal. 54; Hagar v. District, 111 U. S. 701. (2) The statute provides that the owners of a majority of acreage in any contiguous body of swampy or overflowed lands in this State, situated in one or more-counties, may form a drainage district for the purpose of having such lands drained and reclaimed and protected from the effects of water, by malting and signing articles of association, and filing them in the office-of the clerk of the circuit court in the county in which there are situated more of the lands of said district-than in any other county. R. S. 1909, Sec. 5496; Land Co. v. Miller, 170 Mo. 240; Drainage District v. Railroad, 139 S. W. 330. (3) The statute further provides, that the circuit court in which the petition and articles-of association are filed shall thereafter maintain and have exclusive jurisdiction of said drainage district, without regard to county lines, for all the purposes-arising under Art. 1, Ch. 41, of said statute. This requirement of the statute is reasonable and just, as it prevents the splitting up into many fragments that which ought to be kept of necessity as a unit. Its constitutionality and wisdom have been approved in other forums. R. S. 1909, Sec. 549.7; District v. Richardson, 139 S. W. 581; Shaw v. Whitmore, 97 Ind. 23; Crites v. State, 97 Ind. 389 ; Reclamation District v. Hagar, 66 Cal. 54; Meranda v. Spurlin, 100 Ind. 380; Hudson v. Bunch, 116 Ind. 63; Buchanan v. Roeder, 97 Ind. 605; Hagar v. District, 111 U. S. 701; Dredge Works v. Board, 85 N. E. 1. (4) The original petition and articles of association of the Little River Drainage District were first filed in 1905 in the office of the clerk of the circuit court of New Madrid county because that county had in it more lands in the district than did any other county. But later the venue was changed from the circuit court of New Madrid county to the Butler Circuit Court. The Butler Circuit Court therefore became possessed of the same jurisdiction and all of the jurisdiction and power that was originally vested in the New Madrid Circuit Court, “leaving not a shred or patch of jurisdiction over the cause or any of its incidents” in the New Madrid Circuit Court. So that on Nov. 30, 1907, when the circuit court of Butler county, adjudged and decreed the Little River Drainage District to be a public corporation of this State, that court was possessed of exactly the same jurisdiction that was originally conferred by the statute upon the New Madrid Circuit Court. R. S. 1909, Secs. 1935 and 5497; Drainage District v. Richardson, 139 S. W. 576; Ex parte Haley, 99 Mo. 152; State ex rel. v. Riley, 203 Mo. 175; Dredge Works v. Board, 85 N. E. 1. (5) The statute, .in 1910, provided that any drainage district organized under the provisions of Art. 1, Ch. 41, could enlarge its boundaries so as to include other lands that were wet and swampy if contiguous to the drainage district. It provided that the board of supervisors of the district may present a petition to the circuit court, praying that tbe boundaries of tbe district be extended so as to include tbe outlying lands, particularly describing such lands and giving’ tbe names of tbe owners thereof. R. S. 1909, Sec. 5500. It will be observed that this section does not in direct terms designate in what “circuit court” the petition for the enlargement of the boundaries of the district shall be filed. But the-whole context arid spirit of the statute clearly and unmistakably points to the “circuit court” that organized and fixed the boundaries of the district, as the court in which the petition must be filed. A careful examination and study of the entire drainage statute will convince any unbiased mind that the Legislature intended that only one court should have jurisdiction of all questions and proceedings affecting the organization, including the enlargement of the boundaries, management and control of the district — no matter how many counties, nor how many judicial circuits may have lands within the drainage district thus organized. Sec. 549*7 not only so declares in the most positive and direct language, but the context of the whole statute is equally clear and positive in declaring the legislative purpose. R. S. 1909, Secs. 5497, 5499, 5506, 5514, 5515, 5516, 5517 and 5518; Drainage District v. Richardson, 139’ S. W. 581.

      H. G. O’Bryan and Robert A. Anthony for respondents.
    (1) The decree rendered by the circuit court of Butler county incorporating Little River Drainage District and fixing its boundaries, was a final judgment,' rendered in a civil cause and from which an appeal to the Supreme Court would lie. State ex rel. v. Riley, 203 Mo. 175; Land & Stock Co. v. Miller, 170 Mo. 240; Drainage District v. Railroad, 139 S. W. 330. (2) The said decree of incorporation being a final judgment and answering fully the prayer of the petition and authority granted by the statute, the power and authority vested in the circuit court of Butler county by virtue of the change of venue from New Madrid county, became exhausted, and it possessed no jurisdiction over causes arising after the incorporation of said district. R. S. 1909, Art. 1, Oh. 41. (3) This proceeding to enlarge and extend the boundaries of Little River Drainage District is not ancillary to the action brought to incorporate the district, nor is it designed to effectuate or change the incorporating decree, therefore the action was improperly brought in the Butler Circuit Court. Cole v. Cole, 89 Mo. App. 228; Oglesby v. Antull, 12 Fed. 227. (4) After a change of venue it is true that a pleading may be amended, new parties may be brought in, a supplemental petition may be filed and new summons may issue, but the subject matter of the action must remain the same or the court to which the cause has been removed will have no jurisdiction. R. S. 1909, Sec. 1933; Fears v. Riley, 148 Mo. 49. (5) The institution of this action to enlarge and extend Little River Drainage District as originally incorporated, and to take in lands not embraced in the original corporate limits, cannot be considered as an amendment of the “articles of association,” nor a move to add new parties to the action brought to incorporate, nor a supplemental petition to such action. The subject matters of the two actions are radically different; not a particle of the land described in the action to enlarge was embraced in the original petition or articles of association brought for the purpose of incorporating the district. The parties to the two actions are entirely different. In the action brought to incorporate there were certain petitioners' and landowners of the proposed district against all other landowners of such proposed district who refused to join with the petitioners. In the action now before the court brought to enlarge and extend the boundaries of the district, the corporate entity, Little River Drainage District, incorporated since the institution of the original action, is the plaintiff, and the owners of lands lying adjoining and outside the boundaries of said district whose rights so far as said lands are concerned are for the first time brought in question, are the defendants. (6) By the general law, if this be , regarded as a personal action, defendant Tomlinson was entitled to be sued in the county of his residence, or the county of the residence of the plaintiff. Neither resided in Butler county. R. S. 1909, Sec. 1751. (7) If this action is to be considered as one which may ultimately affect the title to Tomlinson’s ■ real estate, then it should be brought in the county within which such real estate is situated. R. S. 1909, Sec. 1753. (8) It must be conceded that an action brought under Art. 1, Ch. 41, to incorporate a drainage district,, is a distinct civil suit and from a decree rendered in such an action an appeal will lie. Therefore, the judgment and decree rendered is final as to that action. So a decree and judgment confirming the report of commissioners appointed under the provisions of Sec. 5518 is final. Under that section and by decree of the court benefits may be fixed, damages assessed and land and other property condemned for the purposes of the district. The effect of such decree is to impose special burdens upon individuals and corporations owning property within the district, hence the .right of appeal from a judgment and 'decree confirming the report of commissioners exists under the general law whether given or not by Art. 1, Ch. 41. The appeal lies because burdens are imposed upon the property of citizens. Appeals have been allowed from judgments of the circuit court in condemnation proceedings under the charter of St. Louis, notwithstanding that there is no provision of the charter providing for an appeal. Drainage Dist. v. Jamison, 176 Mo. 564; Railroad v. Lackland, 25 Mo. 515; Bridge Co. v. Schaubacker, 49 Mo. 555; Ring v. Bridge Co., 57 Mo. 496; Railroad v. Campbell, 62 Mo. 585; Railroad v. Brick Co., 85 Mo. 323; St. Louis v. Thomas, 100 Mo. 223; In re Big Hollow Road, 111 Mo. 326.
   GRAVES, J.

— The facts of this case are few and undisputed, and are correctly stated by counsel for the appellants in the- following language:

“This is a proceeding for the enlargement of the territorial limits of the Little River Drainage District, under See. 5500, R. S. 1909.
“The petition or articles of association, praying for the incorporation of the Little River Drainage District, -were first filed in September, 1905-, in the •office of the clerk of the circuit court of New Madrid county, that county having a larger area of wet and overflowed lands situated within its limits than any other county in said district.
“Afterwards, in 1906, by an order of the circuit court of New Madrid county, the venue in said cause was changed from the circuit court of that county to the circuit court of Butler county, Missouri.
“Afterwards, on the 30th day of November, 1907, the circuit court of Butler county, Missouri, duly declared and decreed the Little River Drainage District a public corporation of this State.
“Subsequent to its incorporation, the landowners ■of the district met, upon the call of the clerk of the Butler Circuit Court, organized by electing John H. Himmelberger, Alfred L. Harty, Charles W. Henderson, A. J. Matthews and S. P. Reynolds supervisors of said district.
“The supervisors organized themselves into a board by electing John H. Himmelberger, president, and A. J. Matthews, secretary. The board of supervisors then appointed a chief engineer and two assistant engineers, who in due time made a complete topographical survey of the lands within the drainage district for the purpose of ascertaining and determining the most economical, feasible and practical way of reclaiming the lands in said district from the effects of overflow and damage by water.
“After these surveys, maps and profiles were made, the board of supervisors employed Isham Randolph of Chicago, and Arthur E. Morgan of Washing City, D. C., then chief of the Bureau of Drainage •Investigation of the Department of Agriculture, as consulting engineers,. who with the chief and assistant engineers of the district formulated and submitted a plan for draining and reclaiming the lands in said district.
“After a thorough investigation of the- plan for drainage, submitted by the engineers, the board of supervisors adopted said plan and caused a copy of the same to be filed in the office of the clerk of the circuit court of Butler county, Missouri, as provided for in See. 5514, R. S. 1909', that court having incorporated said district.
“In making the surveys of the lands within the drainage district it was discovered that there were about forty thousand acres of wet, swampy and overflowed lands adjacent and contiguous to the lands embraced within the district, which were also in need of drainage and reclamation. It was also found that the greater part of these lands adjacent to the lands* in the district were made wet, swampy and unfit for cultivation by reason of the overflow and the spreading of the waters from the Castor river and other streams flowing down from the hill country, north of said drainage district. It was also discovered by these engineers that these outlying lands could be, ■and would be improved, reclaimed and made fit for agricultural purposes by preventing the headwaters of the Castor and the other hill streams from flowing 'down and over them, and that the ‘plan for drainage’ adopted by the board of supervisors would, when executed, improve or reclaim said lands from their wet, swampy and overflowed condition.
“Thereupon the board of supervisors of the Little River Draihage District, for and in behalf of said drainage district, filed in the circuit court of Butler county, Missouri, a petition bottomed upon Sec. 5500, R. S. 1909, setting up the foregoing facts and praying that the boundary lines of the Little River Drainage District, as established at the time of its organization, November 30, 1907, be extended and enlarged so as to include within the limits of the Little River Drainage District all of the outlying wet, swampy and overflowed lands that were contiguous to the lands within the district, and that the lands thus improved and benefited should be subjected to all the assessments and benefits as the lands embraced in the original district.
“Amongst the lands thus sought to be brought within the limits of the Little River Drainage District is 107.06 acres, belonging to this respondent, T. E. Tomlinson, situated in Scott county and being contiguous to and adjoining the eastern boundary of said district.
“At the return term of said cause, to-wit, January term, 1911, of said circuit court of Butler county, Missouri, the respondent, T. E. Tomlinson, appeared and filed a motion to dismiss the plaintiff’s petition and cause of action for want of jurisdiction in the circuit court of Butler county, Missouri. The motion was taken up by the trial court on the 11th day of January, 1911, and after a hearing and argument, the court sustained the respondent’s motion and dismissed the appellants’ cause of action for want of jurisdiction.
“From this ruling and judgment of the trial court, after the filing and overruling of a timely motion for a new trial, the appellants have prosecuted an appeal to this court.
“The main question that is raised by the record in this case is: ‘Which circuit court has jurisdiction to hear this petition of the Little River Drainage Distant for the enlargement of its boundaries?’ 'The circuit court of New Madrid county, in which the articles of association were first filed, or the circuit court of Butler county, to which said articles of association were subsequently sent by change df venue,, and which last court declared and organized said drainage district to be a public corporation of this State,, and still retains jurisdiction of said cause?
“The appellants contend that the. latter court! has sole jurisdiction of the Little River Drainage District without regard to where its articles of association were first filed, and without regard to county and judicial lines; that the statute vests the circuit, court organizing the district into a public corporation with jurisdiction for all the purposes that may arise under Art. 1, Ch. 41.
“If appellants are right in their contention, the judgment of the trial court must be reversed; if they are wrong? the judgment of the lower court should be affirmed.”

While several elementary propositions are stated and discussed by counsel for both the appellants and respondents, yet as a matter of fact, but one legal-question is presented to this court for determination,, and that is: Has the circuit court of Butler county the jurisdiction and authority to enlarge the territorial boundaries of the Little River Drainage District,, heretofore incorporated and established, by adding thereto the lands mentioned in this, an ancillary proceeding?

It is contended by counsel for appellants that said court possesses said authority, while iipon the other hand counsel for respondents deny its jurisdiction and authority to so do. The former contend that this proceeding to enlarge the district is an ancillary or supplemental proceeding to incorporate and establish said Little River Drainage District and consequently must be brought in the circuit court of Butler county, where the original proceeding is now pending, and being a part thereof, cannot be brought elsewhere.

The latter contend that the decree of'the circuit court of Butler county incorporating said Little River Drainage District and fixing its boundaries was a final judgment, and having fully answered the purpose and prayer of the petition filed therein, the power and authority of that court became exhausted, and possessed no further jurisdiction over the cause, or any subsequent or supplementary proceeding which might arise out of or be connected therewith. In other words, the change of venue from the New Madrid Circuit Court to the Butler Circuit Court, did not carry the entire cause to the latter court, but only the authority to incorporate- the district and fix its boundaries, and when that was done, the jurisdiction of the circuit court of Butler county ceased and that the parties should then have returned to the circuit court of New Madrid county and prosecuted all further proceedings, including this proceeding to enlarge the district, in the latter court. .

That precise question was presented to this court, in Banc, in the case of Little Tarkio Drainage District No. 1 v. Richardson, 237 Mo. 49, and after a most careful consideration of the question and all the statutes bearing on it, we hold against» the contention here of counsel for the respondents; that is, that the change of venue carried the entire cause of action to the court to which the change had been sent, and that all proceedings of every kind and character should have been had and prosecuted in the latter court.

No valid reason has been shown why we should depart from the rule there announced. We were then, and are now, of the opinion that the change of venue carried with it the entire cause, and left nothing whatever to be done by the court from which the change was taken, and that all subsequent proceedings must be had in the court to which the change of venue had been taken.

We are, therefore, of the opinion that the judgment of the circuit court dismissing appellants’ petition should he reversed, and the cause remanded. It is so ordered.

All concur, except Valliant, G. Jabsent.


source: Caselaw Access Project

author: FERRISS, J.

license: Public Domain

text:
    THE STATE ex rel. WILLIAM P. EVANS v. JOHN P. GORDON, State Auditor.
    In Banc,
    July 1, 1912.
    1. PUBLIC OFFICER: . Salary: Value of Services. Compensation to a public officer is a matter of statute, not of contract. It does not defend upon the amount or value of the services performed, but is incidental to the office.
    2. -: -: Method of Obtaining. The officer is restricted to the particular method or manner prescribed by statute for obtaining compensation for his official services, and can obtain compensation in no other way.
    3. -: -: Belongs to De Jure Title. Compensation which the statute attaches to a public office as a salary for the officer is an incident to the title to the office, and belongs to the de jure officer; and the de jure officer, on establishing his- title, may recover from the de facto officer the compensation the latter has received.
    4. -: -: Accepting Office with Condition as to Contest Attached. One who accepts a State office does so subject to a statutory condition attached to it, that if a contest is instituted therefor by a defeated candidate, no salary shall be paid him while said contest is pending.

      5. -: -: -: Right to Question Constitutionality of Condition. As the Legislature may fix such compensation to a public office as it sees fit, or none at all, there can be no constitutional objection to its attaching such condition as it seems proper to the payment of the compensation, such condition to be binding upon any one who thereafter enters into such office and performs its duties; and as every :such person accepts it with the statutory condition attached, he cannot afterwards challenge the power of the Legislature to impose such conditions.
    6. -: -: Nonpayment- of Salary During Election Contest: Class Legislation. Sec. 11830, R. S. 1909, declaring that “whenever any office, elective or appointive, the emoluments of which are required to be paid out of the State Treasury, shall be contested or disputed by two or more persons claiming the right thereto, or by information in the. natu're of a quo warranto, then no warrant shall be drawn by the Auditor, or paid by the Treasurer, for the salary by law attached to said office, until the right to the same shall be legally determined between the persons or parties claiming such right,” is not, in that it divides persons whose election to office is being contested into artificial classes, namely, those who draw their salary from the State Treasury and those who draw their salary from a county or city treasury, violative of the constitutional provision which forbids class or special legislation, nor is said act directed primarily to election contests. It relates directly to the payment of funds out of the State Treasury, and by its terms applies to every office whose emoluments are payable from said treasury, and all such officers constitute a natural class, and the act is not invalid as class or special legislation.
    7. -: -: -: Germane to Subject of Statute Amended. An act which prohibits the payment out of the State Treasury of the salary attached to an office during an election contest therefor, is germane to the chapter of the Revised Statutes whose caption is, “Of The State Treasury,” and which relates to the payment of salaries out of the State Treasury. The act appropriately found place in that chapter; and even if the Legislature had an object beyond mere treasury regulation, the subject of the act is still related to the treasury, and naturally connected therewith.
    8. -: -: -: Against Public Policy. The act which prohibits the payment of the salary attached to an office during an election contest between two candidates for the office, cannot be held to be unconstitutional as against public policy, in that it deprives the commissioned incumbent of a just reward for his labor in performing its official duties. In so far as the Legislature is not restrained by the Constitution, it is the judge of the wisdom and fairness of its own enactments, and they will not be set aside unless their nullity and invalidity are placed beyond a reasonable doubt.
    Mandamus.
    We.it denied.

      Irwin & Peters for relator.
    (1) The act in question is class legislation and' in violation of Sec. 27, Art. 4, of the Constitution of 1875, in that it undertakes to divide a natural class of persons, to-wit, all persons whose election to office has been contested, into artificial classes, to-wit, those who draw their salary from the State treasury, and those who draw their salary from a county or city treasury or receive'their compensation from fees col-' lected, and undertakes to impose a burden upon the one which it does upon the other. A statute which relates to persons or things as a class is a general law, while a statute which relates tó particular persons or things of a class is a special law. State v. Tie Co., 181 Mo. 536; State ex rel. v. Washburn, 167 Mo. 68; Sams v. Railroad, 174 Mo. 53; State v. Walsh, 136 Mo. 400; Dunne v. Kansas City, 131 Mo. 1; Eating v. Hickman, 172 Mo. 237; State ex rel. v. Ins. Co., 150 Mo. 113; State ex rel. v. Wofford, 121 Mo. 61; State v. Julow, 129 Mo. 163; State v. Loomis, 115 Mo. 307; In re Flukes, 157 Mo. 125. A statute which fails to embrace all persons who are or may come into like situations and circumstances is a special law and unconstitutional. State v. Julow, 129 Mo. 163; Eating v. Hickman, 172 Mo. 257; State ex rel. v. Wofford, 121 Mo. 61; State ex rel. v. Tolle, 71 Mo. 645; State ex rel. v. Herrmann, 75 Mo. 340. (2) The statute which retains relator’s earned salary, through the service of a contest notice, is a denial of a right and is a violation of Sec. 30, Art. 2, of the Constitution, and of the fourteenth amendment to the Constitution of the United States, which guarantees to relator the “due process of law.” Asphalt Co. v. Bridges, 169 Mo. 376; State v. Julow, 129 Mo. 163; State v. Auditor, 33 Mo. 287; Railroad v. Chicago, 142 Fed. 844; George v. Railroad, 214 Fed. 551; Railroad v. Commission, 155 Fed. 792; State v. Derry, 171 Ind. 18; Bloom v. Hock, 63 N. J. Eq. 10; Mathews v. People, 202 Ill. 389, Labor is property. Mathews v. People, 202 Ill. 389. A person is deprived of his property not only when it is actually taken from him, but also when its -capability of enjoyment is taken or impaired. Black’s Constitutional Law (3 Ed.), p. 577; In re Jacobs, 98 N. Y. 98; State v. Tie Co., 181 Mo. 536. The services rendered having constituted an executed contract, the State is powerless to abrogate it without due process of law. Ex parte Goodin, 67 Mo. 637; State v. Auditor, 33 Mo. 287; O’Brien v. Ash, 169 Mo. 283. (3) The title to the act under which Sec. 11830, R. S. 1909, was enacted, is misleading and does not express the subject embraced in said act, as required by Sec. 32, Art. 4, of the Constitution of 1865, and Sec. 28, Art. 4, of the Constitution of 1875, and is therefore void. Laws 1873, pp. 90, 91; State v. Distilling Co., 237 Mo. 103; Williams v. Railroad, 233 Mo. 666; State v. Wiethaupt, 231 Mo. 449; State v. Burgoerfer, 107 Mo. 33; State v. Coffee Co., 171 Mo. 643; State v. Fort, 210 Mo. 512; Kansas City v. Payne, 71 Mo. 162; St. Louis v. Weitzel, 130 Mo. 616. (4) The State incurs no liability for ■salary paid to a de facto officer, even though the title to the office is in dispute. State v. Clark, 52 Mo. 508; Brown v. County, 112 Ia. 745; Hall v. Coulter, 117 Ky. 747; Coughlin v. McElroy, 74 Conn. 397; Demarest v. New York, 147 N. Y. 203; Chandler v. Hughes Co., 9 S. D. 24; Samuels v. Harrington, 43 Wash. 603 ; Wright v. Coffee Co., 21 Kan. 478; Hatton v. Babcock, 106 Mo. App. 72; Wilson v. Fisher, 140 Cal. 188; State v. Franz, 55 Neb. 167. The right of a public officer to receive pay for services rendered is regarded in the nature of a contract right. 29 Cyc. 1429; State v. Auditor, 33 Mo. 287; Ex parte Goodin, 67 Mo. 637. The one who becomes a public officer de facto, without dishonesty or fraud on. his part, and who renders the services required of such public officer, may recover the compensation provided by law for such serv-. ices during the period of their rendition. State v. Clark, 52 Mo. 508; Erwin v. Jersey City, 60 N. J. L. 141.

      Elliott W. Major, Attorney-General, Campbell Cummings and Charles G. Bevelle, Assistant Attorneys-General, for respondent.
    (1) Every presumption is indulged in favor of the validity of a legislative act, and it devolves upon him who assails same to clearly establish the invalidity. State ex rel. v. McIntosh, 205 Mo. 602; In re Burris, 66 Mo. 450; In re Bledsoe Hill, 200 Mo. 646; State v. Layton, 160 Mo. 488; State ex rel. v. Aloe, 152 Mo. 477; State v. Douglas, 50 Mo. 597; State v. Addington, 77 Mo. 110; State v. Ranson, 73 Mo. 78. (2) The act in question does not contravene the provisions of Sec. 53, Art. 4, of the State Constitution relating to title. A mere reference to the section or chapter to be amended, without other description of the subject-matter of the amendatory law, is a sufficient title to an amendatory act which deals with the subject of the section or chapter amended. State ex rel. v. County, 128 Mo. 440; State ex rel. v. Heege, 135 Mo. 118; Ferguson v. Gentry, 206 Mo. 189; State v. Doering, 194 Mo. 408; State ex rel. v. Herring, 208 Mo. 708; State ex rel. v. Ranson, 73 Mo. 87; De Both v. Mining Co., 141 Mo. 497. (3) The act is not objectionable on the grounds of special or class legislation. The statute is a general law applying equally to all State officers whose salaries are paid out of the State treasury, and whose office is contested. Ensworth v. Curd, 68 Mo. 282; State ex rel. v. Railroad, 48 Mo. 468; Railroad v. St. Louis, 66 Mo. 228; Hickman v. Craig, 6 Mo. App. 583; State ex rel. v. Garesche, 3 Mo. App. 584; Constitution, 1875, Schedule, Sec. 1; R. S. 1909, p. 143. The constitutional clause prohibiting class legislation is prospective in its operation. State ex rel. v. Railroad, 48 Mo. 468; Railroad v. St. Louis, 66 Mo. 228; Hickman v. Craig, 6 Mo. App. 583; State ex rel. v. County, 41 Mo. 457. 'The history of legislation in this State shows that the lawmaking power may divide persons and business into different classes. O’Connor v. Transit Co., 198 Mo. 640; Elting v. Hickman, 172 Mo. 237; Assn. v. Waddill, 138 Mo. 628; State ex rel. v. Speed, 183 Mo. 186. Moreover, the Constitution does not prohibit local or special leigslation in all cases. Such laws are forbidden upon the thirty-two subjects named, and only such others “where a general law can be made applicable.” State ex rel. v. Speed, 183 Mo. 202. A law is valid that applies equally to all who are, or who may come into like situations and circumstances, "and, for that reason, is not local or special. State ex rel. v. Speed, 183 Mo. 186; 8 Cyc. 1051. (4) Under the Constitution and laws of this State an office is not property, but is a mere public trust, created for the benefit of the public and not for the advancement of the officer. The power that created it can abolish it, subject it to such conditions as it sees fit, and the occupant thereof cannot complain. The incumbent is a mere voluntary servant, and not a contracting party. 23 Am. & Eng. Ency. Law, p. 328; Throop on Public Officers, p. 19, and Secs. 446, 450; Mechem on Public Offices and Officers, Sec. 856; State ex rel. v. McCracken, 60 Mo. App. 656. Again, the right of a public officer to fees is derived from the statute. He is entitled to no fees for services he may perform as such officer unless the statute gives it. When the statute fails to provide a fee for services he is required to perform as a public officer, he has no claim upon the State for compensation for such, services. Gammon v. County, 76 Mo. 676 ; State v. Wofford, 116 Mo. 223; Shedd v. Railroad, 67 Mo. 687; Ford v. Railroad, 29 Mo. App. 616; State ex rel. v. Brown, 146 Mo. 406; Williams v. County, 85 Mo. 645; Bank v. Refrigerator Co., 236 Mo. 414; Hill v. County, 195 Mo. 511. Since the Legislature has the absolute power to determine the compensation of a public officer, and to require him to render official services without pay, it necessarily follows that it can name the terms and conditions upon which he shall receive pay. Railroad v. Kirkwood, 150 Mo. 253; Blanding v. Burr, 13 Cal. 343; State v. Holder, 76 Miss. 181. (5) The act does not violate the principles of public policy, this being a question solely for the lawmaking power. State v. Addington, 77 Mo. 110; State v. Bixman, 162 Mo. 29; Hamilton v. Court, 15 Mo. 20; State ex rel. v. Gordon, 236 Mo. 160; State v. Swaggerty, 203 Mo. 527; Court v. Griswold, 58 Mo. 175; Hannibal v. County, 69 Mo. 571; State v. Clark, 54 Mo. 17; Railroad v. Little, 45 Ga. 388; State ex rel. v. McClelland, 138 Ind. 395; Horton v. Comrs., 43 Ala. 605; People v. Railroad, 34 Barb. 138.
   FERRISS, J.

— This is an original proceeding by mandamus on behalf of William P. Evans, Superintendent of Public Schools, to compel John P. Gordon, State Auditor, to issue to relator a warrant for his salary as Superintendent of Public. Schools for the thirteen months ending January 31, 1912, in the sum of $3250, which salary has been withheld by the State Auditor because of a pending contest proceeding against relator instituted by Howard A. Gass contesting relator’s right to the office of Superintendent of Public Schools, which contest has been pending in this court since relator was inducted into office, January 9, 1911. The petition states:

“1. That the relator is now, and ever since the first day of January, 1911, has been, the duly elected, commissioned, qualified and acting Superintendent of Public Schools for the State of Missouri, and during all of said period of time has resided at the seat of government and devoted all of his time to the performance of the duties of his office, as prescribed by law and the Constitution of the State of Missouri.
“2. That respondent, John P. Gordon, is now, and ever since the ninth day of January, 1909, has been, the duly elected, qualified and commissioned Auditor of the State of Missouri; that as such officer it becomes and is the duty of respondent to pay the salaries of the several State officers at the end of each calendar month, the salary earned by such officer for such month, by issuing his warrant upon the State Treasurer, whenever there is any money in the State treasury to the credit of the fund from which such salary is payable.
“3. That the Forty-sixth General Assembly of the State of Missouri appropriated the sum of six thousand dollars to pay relator’s salary for the years 1911 and 1912, which said sum of money is now in the hands of the State Treasurer to the credit of the proper fund, and is available for the payment of relator’s salary, and the sum of money now in said fund is and was on the second day of February, 1912, in excess of relator’s demand, and is available fo.r no other purpose than the payment of relator’s salary.
“4. That there is now justly due and owing to relator his salary for the entire year of 1911, in the sum of three thousand dollars, and his salary for the month ending January 31, 1912, in the sum of two hundred and fifty dollars; that relator has heretofore on the second day of February, 1912, presented to respondent his account for services rendered the State of Missouri covering the time herein mentioned, and has requested respondent to audit said claim and account, and issue to him, the relator, a warrant upon the State Treasurer in the sum of three thousand two hundred and fifty dollars, in payment for the services so rendered as Superintendent of Public Schools of the State of Missouri, but that respondent has refused and still refuses to issue to relator any warrant whatever on account of said services.
“5. That respondent, upon receipt and presentation of relator’s claim and demand for his salary as aforesaid, declined and refused to audit and allow said claim, or to issue to relator a warrant for the whole or any part thereof; that respondent’s refusal to audit said account or to issue a warrant to relator is in words and figures as follows:
“ ‘I wish to call your attention to Sec. 11830', R. S. 1900, which reads as follows:
“ ‘ “Seo. 11830. Whenever any office, elective or appointive, the emoluments of which are required to be paid out of the State treasury, shall be contested or disputed by two or more persons claiming’ the right thereto, or by information in the nature of a quo warranto, then no warrant shall be drawn by the Auditor, or paid by the Treasurer, for the salary by law attached to said office, until the right to the same shall be legally determined1 between the persons or parties claiming such right: Provided, however, and it is hereby further enacted, that in all cases when the person, to whom the commission for such office shall have issued, shall deliver to the party contesting his right to such office a good and sufficient bond, in double the amount of .the annual salary of such office, conditioned that if, upon final determination of the rights of the contestants, it shall be decided that the obligor is not, and that the obligee therein is, entitled to the office in controversy, he shall pay over to the obligee the amount of salary therefor drawn by him as such officer, together with ten per centum interest thereon from the date of the receipt of each installment received by him, then, and in such case, notwithstanding the provisions of this law, a warrant may be drawn by the Auditor, and paid by the Treasurer to the person holding the commission aforesaid, for the amount of his salary, as the same shall become due. It shall be the duty of any person contesting the election of any such officer to give notice of such contest to the State Auditor, and no such contest shall be heard or determined until he shall satisfy the tribunal trying such contest that such notice has been given.”
“ ‘The notice referred to in that section has been given to me, and under that notice and the law itself I am unable to draw you a warrant for said amount.:’
“Relator says that it is true that an election contest is pending against him for said office by Howard A. Grass, and that notice of such contest has been duly served upon respondent, but relator alleges that respondent is not authorized or warranted in withholding, and has no right to withhold, relator’s salary or any part thereof, or to refuse to audit relator’s demand for said salary and to draw a warrant for payment thereof, by reason of the aforesaid election contest and by reason of the notice thereof heretofore served upon respondent, because said Sec. 11830, R. S. 1909, is unconstitutional, void and of no effect whatever, for the following reasons:
“a. That the title to the bill by which said Sec. 11830, R. S. 1909, was enacted by the G-eneral Assembly of Missouri, is in conflict with, and does not conform to, the requirements of Sec. 32, Art. 4, of the Constitution of the State of Missouri, adopted in the year 1865, which said Constitution was then in full force and effect at the time said' section was enacted into law, in this, that it does not express the object and purpose of said bill, to-wit, the withholding of the salary of certain officers whose right to office is contested; but merely purports to add two sections to Ch. 10, as revised and published in 1865, entitled, ‘Of the treasury department,’ which said chapter of said statutes in no manner or form affects or deals with election contests or the salaries to be paid to public officers or the right to withhold the salary of a contestee in an election contest.
“b. That the title to the bill by which said Sec. 11830, R. S. 1909, was enacted is in conflict with said Sec. 32, Art. 4, of the Constitution of Missouri, adopted in the year 1865, in this, that the said title to the said bill is misleading, indefinite, and does not express the subject, and does not set forth the object and purposes of said bill, because it purports to affect only the treasury department of the State of Missouri, whereas the bill itself does not affect the State of Missouri or the treasury department, nor does it relátelo said treasury department in any manner whatever, but its general purpose, object and intent is te undertake to deprive eontestees in certain election contests of the right to receive and appropriate the salaries and emoluments which may be earned by'such eontestees who hold office and discharge the duties thereof during the time that such election contest is pending determination.
“c. That said Sec. 11830, R. S. 1909', is in conflict with, and its enactment was prohibited by Sec. 27, Art. 4, of the Constitution of Missouri, adopted in the year 1865, and Sec. 53, Art. 4, of the Constitution of Missouri, adopted in the year 1875’, and now in force, because said section is a special law, and is class legislation in this, that it divides or attempts to» divide a natural class of officers into artificial classes, and only provides for withholding the salaries and emoluments of officers whose salaries and emoluments are payable by the State Treasurer, while it permits officers of the same class whose salaries and emoluments are payable by counties, cities or other municipalities, to draw and receive their salaries and emoluments notwithstanding their right to office may be contested or in dispute.
“d. That relator, as incumbent of the office of Superintendent of Public Schools of the State of Missouri, from the first day of January, 1911, until the first day of February, 1912, was compelled, under the provisions of Sec. 18, Art. 2, of the Constitution of Missouri adopted in 1875, to reside at the seat of government and devote his time to the performance of said official duties, and did so reside at the seat of government, and did so personally devote his time to the performance of said official duties; wherefore, relator says that said See. 11830, R. S. 1909, by withholding or attempting to withhold relator’s salary and compensation for the aforesaid time and services, deprives him of his property and the fruits of his labor without due process of law, as prohibited by Sec. 30, Art. 2, of the Constitution of Missouri, and as prohibited by the Fourteenth Amendment to the Constitution of the United States.
“e. There being no law whereby the said Howard A. Gass, as contestant in the aforesaid election contest, could collect, receive or appropriate the salary which has been earned by the relator while performing the duties of said office, as hereinbefore recited, that provision of said Sec. 11830, R. S. 1909, which requires relator to give bond to said Howard A. Gass, contestant as aforesaid, for the payment to him of such salary as relator may receive during the pendency of said election contest, is in conflict with Sec. 4, Art. 2, of the Constitution of Missouri, adopted in 1875, guaranteeing to every person the enjoyment of the gains of his own industry.
“f. The relator is a person of small means, and' is'financially unable to ¡comply with the provisions of said Sec. 11830, R. S. 1909, by giving to contestant a bond in the sum of twenty-four thousand dollars or any part thereof; that a certificate of election has been duly issued to relator, and that until final determination of the contest now pending he, the relator, is de facto and de jure a State officer, and under the provisions of the Constitution and laws of the State of Missouri he is required to reside at the seat of government and devote all his time to the discharge of the duties of his said office, and said Sec. 11830, R. S. 1909, which does, or attempts to, deprive him of the emoluments of said office, is unconstitutional and void and against the sound public policy of the State of Missouri, as it tends to deter men of small means from seeking election to a State office; that it places an unreasonable and unjust burden upon an officeholder by' unjustly depriving him of the means of support while discharging the duties of his office, and greatly hinders him in the proper performance of his official duties ; that 'it imposes on the contestee an unjust burden and a usurious rate of interest, and seeks to give the benefit of such burden to the person who has not performed the duties of the office or rendered to the State any services whatever; that it places an unjust burden and penalty upon an officeholder holding a State office, through the mere filing of a contest proceeding against him, which may be the sole result of malice, spite or ill will toward the contestee, and thereby deprive him of the fruits of an office to which he has been legally and fairly elected; that it tends to encourage election contests by offering an inducement to the contestant upon one hand, and by unjustly penalizing the contestee upon the other; that it offers an inducement to the contestant to unnecessarily delay the final determination of a contest proceeding by dilatory proceedings, greatly to the detriment of the contestee and the hindrance of the duty which he owes to the State as an officeholder thereof.
“Wherefore, relator says he has no adequate remedy at law, and prays this court to issue a temporary writ of mandamus against the respondent, requiring him to show cause, if any he has, why he has not issued a warrant to relator for the three thousand two hundred and fifty dollars due him as aforesaid for his salary and services as Superintendent of Pliblic Schools of Missouri.
“Belator further prays that upon final hearing of this cause a peremptory writ of mandamus shall issue against said respondent, requiring him forthwith to issue to relator a warrant upon the. treasury of Missouri for said sum due to relator, as aforesaid, and for such other and further relief as may he proper.”

To this petition respondent filed a demurrer as follows:

“Now comes the respondent John P. Gordon, and demurs to the alternative writ of mandamus heretofore issued, and says that relator ought not to have his writ of peremptory mandamus for • the following reasons, to-wit:
“1. Neither the petition nor alternative writ states facts sufficient to constitute a cause of action.
“2. Said petition and alternative writ, and the matters and things therein stated and set forth, are not sufficient in law to entitle relator to the relief ashed, nor to authorize the issuance of the writ of mandamus herein prayed for, or to any relief whatever.
“3. Because the matters and things therein stated disclose that relator is precluded and prohibited by the laws of this State from recovering a warrant upon the treasury of Missouri for the sum mentioned or any other sum.
“4. Because the matters and things stated disclose that respondent is not only authorized, hut is required, as an officer of this State, to refuse to issue to relator a warrant for said sum or any other sum whatever.
“Wherefore, respondent prays, for the reasons set out above, and for other and further reasons appearing upon the face of relator’s petition and the altentative writ, that the same be dismissed, that the writ be denied, and that he be permitted to go hence without day, and for his costs.”

We have set out the petition in extenso, because it contains a full presentation of relator’s theory of the case.

The points are presented thus in the brief for relator:

“The act of the Legislature, whereby it is sought to deprive relator of his earned salary, is unconstitutional and void for the following reasons:
“1st. Because it denies to relator the enjoyment of that provision of Sec. 4, Art. 2, of the Constitution, which provides, ‘That all persons have a natural right to life, liberty and the enjoyment of the gains of their own industry.’
“2nd. That it deprives relator of the right guaranteed by Sec. 30, Art. 2, of the Constitution, wherein he is assured ‘that no person shall be deprived of life,' liberty or property without due process of law. ’
“3rd. That the act aforesaid violates the Fourteenth Amendment to the Constitution of the United States, which provides: ‘Nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’
“4th. That the act of the Legislature violates the provisions of Sec. 53, Art. 4, of the Constitution of Missouri, forbidding the Legislature to grant ‘to any corporation, association or individual any special or exclusive right, privilege or immunity.’
“5th. That it violates Sec. 53, Art. 4, of the Constitution of Missouri, which declares that ‘where a general law can be made applicable, no local or special law shall be enacted.’
“6th. That the act in question violates Sec. 32 of Art. 4 of the Constitution of Missouri, 1865', which provides that ‘no law enacted by the General AssemPly shall relate to more than one subject, and that shall be expressed in the title. But if any subject embraced in the act be not expressed in the title, such act shall be void only as to so much thereof as is not so expressed.’
“7th. Because it is against the sound public policy of the State to deprive a public officer of his salary earned, while compelling him to perform the duties of the office.”

The first three points may be treated as one, and are so treated in relator’s brief. Points 4 and 5 may also be treated together.

I. Compensation to a public officer is a matter of statute, not of contract; and it does not depend upon the amount or value of services performed, but is incidental to the office.

Throop on Public Officers (Sec. 443) says: “It has been often held, that an officer’s right to his compensation does not grow out of a contract between him and the State. The compensation belongs to the officer, as an incident of his office, and he is entitled to it, not by force of any contract, but because the law attaches it to the office.”

Mechem on Public Offices and Officers says: “Sec. 855. As has been seen, the relation between the officer and the public is not the creature of contract, nor is the office itself a contract. So his right to compensation is not the creature of contract. It exists, if it exists at all, as the creation of the law, and when it so exists, it belongs to him ‘not by force of any contract, but because the law attaches it to the office” The most .that can be said is that there is a contract to pay him such compensation as may from time to time be by law attached to the office.

“Sec. 856. Unless, therefore, compensation is by law attached to the office, none can be recovered. A person who accepts an office to which no compensation is attached is presumed to undertake to serve gratuitously, and he cannot recover anything upon the ground of an implied contract to pay what the service is worth.”

To the same effect are our decisions. [State v. Wofford, 116 Mo. 223; Gammon v. Lafayette County, 76 Mo. 675; State v. Brown, 146 Mo. 406.] In Bank v. Refrigerating Co., 236 Mo. 414, Brown, J.,speaking for the court, says: “When the law requires a specific service to he' performed by a public officer, he must perform that service regardless of whether any provision has been made to pay him for same.”

Not only is the right to compensation dependent upon statute, but the method or particular mode provided, by statute must be accepted. On this point the Kansas City Court of Appeals says: “It seems the general rule in this country, as announced by the decisions and text-writers, that the rendition of services by a public officer is "to be deemed gratuitous, unless a compensation therefor is provided by statute. And further, it seems well settled that if the statute provides compensation in a particular mode or manner, then the 'officer is confined to that manner, and is entitled to no other or further compensation, or to any different mode of securing the same. [Throop on Public Officers, Secs. 446, 450; Shed v. Railroad, 67 Mo. 687, 690; Gammon v. Lafayette County, 76 Mo. 675; Williams v. Chariton County, 85 Mo. 645; Ford v. Railroad, 29 Mo. App. 616.] Such statutes, too, must be strictly construed as against the officer. "[Ford v. Railroad, supra, and Shed v. Railroad, supra.]”'[State ex rel. v. McCracken, 60 Mo. App. l. c. 656.]

It is also settled law that, as the compensation is incident to the title, it belongs to the de jv,re officer. As to the right of the de facto officer to draw the salary during his incumbency, the authorities .are not harmonious. Both Throop and Mechem lay down the rule,, based upon New York decisions, that the de facto officer has no right to the salary, and this because a claim fox salary must be based upon title. [Throop on Public Officers, Sec. 517; Mechem’s Public Offices and Officers, Sec. 331.] And such is the holding in many jurisdictions. Our court, in several cases, adheres to the contrary doctrine. [State v. Draper, 48 Mo. 213; State v. Clark, 52 Mo. 508; State v. John, 81 Mo. 13; Dickerson v. Butler, 27 Mo. App. 9; State ex rel. v. Walbridge, 153 Mo. l. c. 202.] All the authorities, however, agree that the de jure officer, on establishing his title, may recover from the de facto officer the compensation which the latter has received.

Under the Act of 1873 (Sec. 11830, R. S. 1909), the compensation payable to the office which relator is holding in possession was made subject to the condition that it should not be paid pending a contest for the office. Relator accepted the office with knowledge of this condition. As the Legislature may fix such compensation to a public office as it sees fit, or none at all, we can see no constitutional objection to its attaching such conditions as it deems proper to the payment of the compensation, such conditions to be binding upon any one who thereafter enters upon such office and performs its duties. As stated above, the compensation has no relation to the amount or value of the service. There can be no application of the doctrine of quantum meruit. The officer takes the office cum onere. Having accepted it with the conditions imposed by the Legislature, upon whose will he. must depend for any compensation at all, he cannot afterwards challenge the power of the Legislature to impose such conditions.

The relator concedes in his brief that there is no property right in an office which may not be taken away by future legislation, and, further, that an office is accepted subject to future legislation. It is, however, no less true that the office is accepted subject to existing legislation. If, after a man has accepted office, and has performed its duties, and has a right to compensation therefor, a law is passed depriving him of such compensation, the situation will arise which relator argues exists here. He relies upon the case of State ex rel. Register v. Auditor, 33 Mo. 287. In that case, after the services had heen performed by the duly elected and qualified officer, the General Assembly passed a resolution forbidding the Auditor to allow his account for compensation for services rendered. It was held that the officer’s right to compensation was vested before the resolution was passed,, and that the act of the General Assembly, being retrospective, was invalid. Obviously that case does not help the relator here.

It is urged, further, that inasmuch as the relator is compelled by law-to perform certain duties, he is entitled to pay therefor. We have shown that mere incumbency does not entitle an officer to pay. True, if he accepts the office, he must be faithful in the performance of its duties. But the law does not compel him to take the office. He accepts it of his free will, and with full knowledge of the conditions imposed by existing law.

We find one case only in our reports involving a consideration of this Act of 1873. In the case of State ex rel. v. Clark, 52 Mo. 508, the relator presented a petition to this court for a writ of mandamus to the State Auditor, alleging that he was commissioned as circuit, judge on April 20', 1869, and was discharging the duties of that office, and that on April 1, 1873, he presented his account for the previous quarter’s salary to the Auditor, who refused a warrant therefor. In his return the Auditor interposed this same Act of 1873, and stated that a writ of quo warranto was pending to determine title to the office held by the relator. The answer to the return admitted the pendency of the writ, but said that it was issued at the relation of the Attorney-General, and did not involve a contest for the office. The answer further pleaded that the statute was unconstitutional. The court, without noticing the constitutional question, held that the act did not apply where there was no contest pending and where a quo warranto was filed by the Attorney-General at his own relation to determine only whether the respondent was a usurper in office. The validity of the Act of 1873 was apparently conceded by both court and counsel.

II. Nor does the act in question violate the constitutional provision' which forbids special or class legislation. Dealing as it does exclusively with funds in the State treasury, it applies to each and every officeholder who is paid directly from the treasury. The class thus designated includes every person who could he affected by the law, which does not refer to particular officers, but is general in its application to all persons within the class. The power of the Legislature to designate a class and legislate with regard to the class so created cannot be doubted. It must be a natural class, and the law must apply to all members thereof. In Lynch v. Murphy, 119 Mo. 163, an act was challenged as special which made a class of road districts in all counties where there were dram-shops, and townships which had compromised or might compromise their indebtedness. The act was held valid. The court said, page 172:

“The statute now under consideration refers to all the road districts in all the counties in the State where there are dramshops, and to all townships that are indebted and that have compromised, or that may hereafter compromise their indebtedness. It does not refer or have reference to any particular county, road district or township, and is not local or special in its application. ' . .
“It may be true, and doubtless there are counties in the State which have no dramshops, or that have no township indebtedness, and to which, for that reason, the act does not apply, but it is nevertheless general in its application because it does apply to all road districts and townships including those which have compromised or may thereafter compromise their indebtedness. It could not be more general in its application. ’ ’

In Elting v. Hickman, 172 Mo. l. c. 257, we say: “It is well settled that a law which includes all persons who are in or who may come into like situations and circumstances is not special legislation.” To the same effect are State ex rel. v. County Court, 128 Mo. 427; Hamman v. Cen. Coal & Coke Co., 156 Mo. 232; Ex parte Handler, 176 Mo. l. c. 389.

This court has repeatedly approved the following definition laid down in Wheeler v. Philadelphia, 77 Pa. St. 338: “A statute which relates to persons and things as a class is a general law, while a statute which relates to particular persons or things of a class is special.” [O’Connor v. Transit Co., 198 Mo. l. c. 639.]

In State v. Whitaker, 160 Mo. 59, we sustained a classification which required electric street cars to be equipped with screens to protect motormen, but which did not include cable and horse cars. In Ex parte Loving, 178 Mo. l. c. 214, we say: “It has long been recognized that the Legislature could distinguish classes of subjects to which it would make its legislative provisions applicable.”

The question is, was this a reasonable classification in view of the legislative purpose? The immediate object and effect of the act in question is to retain in the State treasury the salary of an official whose title to the office is contested, pending such contest. It is manifest that the act is as general as possible in its application, inasmuch as it applies to all officials whose pay comes from the State treasury. Applicable to this discussion is the following from 26 Am. ■& Eng. Ency. Law, p. 683:

“In order to determine whether or not a given law is general, the purpose of the act and the objects «on which it is intended to operate must be considered. If these objects are distinguished from others by.characteristics evincing a peculiar relation to the legislative purpose, and showing the legislation to be reasonably appropriate to the former and inappropriate to the latter, the objects will be considered, as respects such legislation, to be a class by themselves, and legislation affecting such a class, to be general.”

The argument of the relator proceeds upon the theory that the Act of 1873 involves a classification of contested election cases. His position is stated in his brief thus: “The act in question is clearly class, legislation, in that it undertakes to divide a natural class of persons, to-wit, all persons whose election to office has been contested, into artificial classes, to-wit, those who draw their salary from the State treasury, «on the one hand, and those who draw their salary from a county or city treasury, or receive their com-pensation from fees collected, on the other.” And again: “Contestants in election contests form a class •of which no division or distinction can be made without violating the constitutional prohibition.”

All his citations of authorities are upon this theory. In our judgment, relator misapprehends the nature and scope of the act, in so far as he regards the act as directed primarily to election contests. In point of fact, it relates directly to payment of - funds ■out of the State treasury, and inasmuch as by its terms •it applies to every office whose emoluments are payable from the treasury, such offices naturally constitute the class to which the legislation applies, and inasmuch as it applies equally to all members of that ■class, it cannot be regarded as special legislation.

III. Relator contends that the Act of 1873 violates this provision of the State Constitution: “No-law enacted hy the General Assembly shall relate to-more than one subject, and that shall be expressed in the title.” [Sec. 32, Art. 4, Constitution of 1865.]

The act in question, now Sec. 11830', R. S. 1900',. was enacted in 1873 (Laws 1873, p. 90), under the following title: “An act to amend chapter ten of the general statutes of Missouri, being chapter one hundred and -thirty-seven of Wagner’s Statutes, by adding two new sections thereto.”

Chapter 10, R. S. 1865, hears this caption: “Of the State treasury.” It must he, and is, conceded' that the title of the act, by reference to the chapter-amended, is broad enough to include the subject of the Act of 1873’, if that subject is germane to the subject of said chapter 10. [State ex rel. v. County Court, 128 Mo. 440; State v. Doerring, 194 Mo. 398.] Chapter 10 prescribes in detail the duties of the State Auditor and State Treasurer- regarding the disbursement of the funds in the State treasury. It is made-the duty of the Auditor to audit, adjust and settle all claims against the State payable out of the treasury, and draw his warrant upon the treasury therefor. The statute, in great detail, imposes conditions and limitations upon the authority of the Auditor in allowing and auditing claims. Sec. '28 of said chapter makes-it the duty of the Auditor to draw his warrant in pay-' ment of all salaries and pay allowed hy law.

The act in question forbids the State Auditor to-pay the salaries of certain officers when and during the time the office is being' contested, unless a bon’d be given as provided in the act. We think the subject ,of the act is germane to the chapter to which it is-added as an amendment.

It is urged that the State has no interest in the' matter of a contest, and that it is protected in paying the salary to the de facto officer. This insistence is-apart from the question whether the subject of the bill is germane to chapter 10, which treats of the treasury. As the object of this statute is to withhold payment from the treasury of a salary, pending a contest for the office, we can conceive of no more appropriate place for the law than in the chapter relating to payment of salaries out of the State treasury. Even if the Legislature had an object beyond mere treasury regulation, the subject of the act is still related to the treasury, and naturally connected therewith. [State ex rel. Tolerton v. Gordon, 236 Mo. 142.] This provision of the Constitution has often been construed by this court, and always liberally, so as not. ■to hamper the Legislature. [Coffey v. Carthage, 200; Mo. 616; State ex rel. v. Miller, 100 Mo. 439; Ferguson v. Gentry, 206 Mo. 189.]

IV. Finally, it is urged that this act is against public policy, in that it deprives a man of the just reward for his labor. This argument could appropriately be made to the Legislature. In so far as that, body is not' restrained by the Constitution, it is the-judge of the wisdom and fairness of its enactments.. We have no right to set aside a statute unless it is-clearly violative of the Constitution. This court has. again and again announced its adherence to this position. It is well expressed by Wagner, J., in State v. Railroad, 48 Mo. 470, as follows:

“When courts are called upon to pronounce the invalidity of an act' ,of the Legislature, passed with, all the form and ceremonies requisite to give it force,, they always approach the question with great caution, and view it with the most careful and attentive deliberation, and never declare a statute void unless-in their judgment its nullity and invalidity are placed beyond a reasonable doubt. No rule of construction is better established, both upon principle and authority, than that acts of the Legislature are to be presimaed constitutional until the contrary is clearly shown; and it is only when they manifestly infringe -on some provision of the Constitution that they can be declared void for that reason. In case of doubt, every possible presumption not directly and clearly inconsistent with the language and subject-matter, is to be made in favor of the constitutionality of the act.”

In our judgment, the demurrer should be sustained. It is so ordered.

All concur, except Kennish and Brown, JJ., not sitting.


author: KENNISH, J. GEAVES, J.

text:
    THE STATE ex rel. JAMES D. RAINWATER, Appellant, v. J. C. ROSS et al., Judges of County Court.
    In Banc,
    July 2, 1912.

      1. LOCAL OPTION LAW: Title: Election Contest: Amendment of 1909. The title to the Local Option. Act of 1887, which was: “An act to provide for the preventing of the evils of intemperance hy local option in any county in this State, and in cities -of twenty-five hundred inhabitants or more, by submitting the •question of prohibiting the sale of intoxicating liquors to the qualified voters of such county or city; to provide penalties for its violation, and for other purposes,” is sufficient to uphold section 7242 of the act, declaring that “the election in this act provided for, and the result thereof, may be contested in the same manner as is now provided hy law for the contest of county officers,” and to contemplate the Amendment of 1909 to said section 7242, declaring that said election contest could be brought “by any qualified voter of the municipal body or of the county in which said local option election shall be held by an action to contest as herein provided, and which shall be brought against the municipal body or county holding said election.” The title purports to cover the subject of an election for the purpose of prohibiting the sale of intoxicating liquors, and the provision in the body of the act for the contest of an election so held is clearly germane and directly connected with the subject expressed in the title.

      Meld, by G-RAVES, J., that the Constitution only speaks of contests for office and not contests of elections upon public questions; and it is a question whether there is any constitutional warrant for said Amendment of 1909.

      2. -: Election: Validity Contested by Mandamus. Where the only ground upon which relator was refused a dramshop license was that the Local Option Law had been adopted in the county, his remedy to contest the validity of that election is not the writ of mandamus to compel the county court to issue him a license. Since section 7242 of the act and thcamendment thereof in 1909 provide that a local option election may be contested, “in the same manner as is now provided by law for the contest of the election of county officers,” and as that is an adequate remedy, relief by mandamus must be denied.
    S. -: -: -: Statutory Remedy Exclusive. It is within the power of the Legislature to designate the tribunal, the parties and the procedure for the contest of an election: and when it does so, the statutory remedy is exclusive, since the right to contest an election did not exist at common law. And when the General Assembly provided that a local option election may be contested in the same way in which, under the general election statutes, an election to a county office may be contested, it provided a complete and adequate remedy for any qualified citizen of the city or county to contest the validity of an election at which the county court has declared the-Local Option Law was or was not adopted, by giving notice within twenty days after the votes shall have been officially counted, etc.

      Held, by GRAVES, X, dissenting, that the statutory method is not exclusive, but only cumulative; second, that the general election laws are not available for declaring invalid a whole election, but a contest for office, for which they provide,’ necessarily admits that a valid election has been held; and; third, many defects may arise in a local option election, such as a valid petition or a requisite notice or a proper count, for the investigation of which the general election laws make no provision, and therefore the statutory method of contesting the validity of such an election is not an adequate remedy in all cases.
    Appeal from Jasper Circuit Court. — Ron. B. G. Thurman and Ron. J. D. Perkins, Judges.
    Aeeirmed.

      A. L. Thomas and MoBeynolds & Halliburton for appellant.
    (1) These provisions of the statute are mandatory. Ballots without numbers were counted in the Fifth ward, and the ballots in the Fifth ward were not sealed up in a package, but were returned loose on a ■string in an unfastened box, and should not have been counted. West v. Ross, 53 Mo. 350; Ledbetter v. Hull, 62 Mo. 422; Donald v. Lee, 101 Mo. App. 191; McKay v. Minor, 154 Mo. 608. (2) The admission in evidence of the news report in the “Press” of the action •of the council ordering election to be held at certain places in the various wards was error. Southworth v. Mayor, 232 Mo. 108, where the court says: “If •statutory notice of election is insufficient the election must fail.” McPike v. Pen, 51 Mo. 63. (3) The law governing special elections must be strictly followed. And there must be reasonable notice of time and polling places, and where the time and place is to be designated by some board, then notice of time and place must be given by such board. Haddox v. County, 79 Va. 677; Morgan v. Gloucester, 44 N. J. L. 137; People v. Weller, 11 Cal. 49; George v. Township, 16 Kan. 88; Stephens v. People, 89 Ill. 337; Westbrook v. Rosebrough, 14 Cal. 180. (4) The election should be held void for the reason that the uncontroverted evidence in the case shows that open and flagrant bribery was resorted to in at least four of the five voting precincts in the city of Carthage. When fraudulent and corrupt methods in the holding of an election are shown to have been resorted to in any precinct the burden is then cast on those asserting the validity of the election to show 'that the election was not improperly affected by said means. Littlefield ex rel. v. Newell, 27 Atl. 156; State ex rel. v. County, 35 Kan. 640; State v. Marston, 6 Kan. 538; Russell v. State, 11 Kan. 322; State v. Stephens, 23 Kan. 456; Patten v. Coats, 41 Ark. 111; Thompson v. Ewing, 1 Brewster, 67; Wallace v. Simpson, 4 Brewster, 457; People v. Thacher, 55 N. Y. 525; Howard v. Cooper, Contested Elections in Congress, 1834, 1865, p. 275; Blair v. Barrett, Contested Elections in Congress, p. 308; Reed v. Julian, Contested Elections in Congress, p. 821; McCrary on Elections, Sec. 436, et seq.

      W. N.. Andrews, H. F. Walden and Shannon & Phelps for respondents.
    (1) An election contest is the exclusive remedy to determine the validity of a local option election held for the purpose of adopting Art. 3, Ch. 63, R. S. 1909. Opinion of Nixon, P. J., in State ex rel. v. Ross, 143 S. W. 511. (2) In determining that the Local .Option Law was in force in Carthage, the county court of Jasper county acted judicially, and its judgment is conclusive against a collateral attack. State v. Mackin, 51 Mo. App. 308; State v. Evans, 83 Mo. 319; State ex rel. v. Weatherly, 45 Mo. 17. (3) In investigating as to whether the Local Option Law was in force in Carthage, the county court, on an application for a dramshop license, could only look to the records to determine whether a valid election had been held for the purpose of adopting said law. The conclusion of the city council, if supported by the record, is conclusive as against a collateral attack. State ex rel. v. Young, 84 Mo. 90; 28 Cyc. 1062. (4) Every question which was raised and every question which might have been raised at the hearing before the county court on the application of relator for a dram-shop license is res adjudicata. Greenabaum v. Elliott, 60 Mo. 25; Brown v. Woody, 22 Mo. App. 253; Ketcham v. Christman, 128 Mo. 38; Donnell v. Wright, 147 Mo. 639; Hamilton v. McLean, 169 Mo. 61. (5) It is contended by appellant that relief by a mandamus proceeding is available to him, because he has no adequate remedy at law. Sec. 2055, R. S. 1909, provides that writs of error shall issue on demand, as a matter of right, on the final decision or judgment of a county court, from the circuit court. Sec. 2028 provides that in any civil suit in any court of record the person composing the court shall sign a bill of exceptions, when any party to such suit shall write his ■exceptions and pray the court to allow and sign the same. A proceeding on an application for a license to keep a dramshop is a civil suit. Conuty v. Philpot, 66 Ark. 243. A county court is a court of record. Under the law a bill of exceptions becomes a part of the record. Therefore, could not the relator obtain adequate relief at law by means of a writ of error? (6) A county court may be compelled to take cognizance of a matter of which it has jurisdiction, but it will not be compelled by mandamus to enter up a specific judgment, although it may appear from the facts of the cask that such judgment would be proper. It must exercise its own judgment as to how the matter shall be determined, and no other court can require it to decide in any particular way. Miltenber v. County, 50 Mo. 172; State ex rel. v. Court, 87 Mo. 376; Hulse v. Marshall, 9 Mo. App. 148; State ex rel. v. Smith, 105 Mo. 9; State ex rel. v. Buhler, 90 Mo. 560; State ex rel. v. Lesueur, 126 Mo. 413; State ex rel. v. Wooten, 139 Mo. App. 226.
   KENNISH, J.

— This proceeding by mandamus was brought by the relator in the circuit court of Jasper county, against the respondents as judges of the county court. The purpose of the suit was to compel the respondents as such judges to grant a license to relator to keep a dramshop in the city of Carthage, a city of over. 2500 inhabitants in said county. Upon a trial a peremptory writ of mandamus was denied and relator appealed to the Springfield Court of Appeals, in which court the judgment was affirmed. After 'the affirmance of the judgment the case was transferred to this court upon the motion of appellant, on the ground that the construction of the Constitution of this State was involved in the case.

In the petition for- mandamus facts were alleged showing that relator had complied with all the statutory requirements entitling him to a dramshop license, including an allegation that the petition was-■signed by two-thirds of the persons qualified as petitioners. It was also alleged that a hearing was had in the county court, and although relator established all of said facts and respondents found such facts to be true, respondents wrongfully denied relator’s application and petition. The prayer was that as relator “had no other legal remedy whatever in the premises,” a writ of mandamus be issued as prayed. Eespondents made return to the alternative writ, admitting that as judges of the county court they denied relator’s petition for such license, and responding to the command of the alternative writ to show cause for such action, made three separate defenses, which, in substance, were but two, namely: First, that the Local Option Law was regularly adopted by the voters ■of said city and was in full force and effect therein .at the times mentioned in the alternative writ. Second, that at the hearing in the county court, upon relator’s application for such license, the question as to whether the Local Option Law was in force in said city of Carthage was heard and determined by the county court and was therefore res adjudicata. Eelator filed answer to the return, admitting that an election was attempted to be held in said city to determine whether the Local Option Law should be put Into force and effect therein, but denied that said law was legally adopted at the said election, and the legality of the election was challenged upon a number -of grounds, such as that the notice of the election was Insufficient; that the law against electioneering within one hundred feet of the polling places was violated; that one of the ballot boxes used remained unfastened ■during the election; and that many ballots were counted ■on which no numbers had been indorsed as required ■by law. The answer also contained a general denial.

Much testimony was introduced upon the issues-thus made, at the close of which the court filed a written memorandum set out in the record, learnedly reviewing the law and the evidence, and concluding, as before' stated, with a judgment denying the peremptory writ. Upon the hearing in the Court of Appeals one member thereof did not sit in the case, and each of the other two delivered an able opinion in affirmance of the judgment. The concurring opinion of Nixon, J., holds that as the Local Option Law, as-amended in the year 1909, provided an adequate remedy for the contest of an election held under said law, such remedy was exclusive and that mandamus would not lie under the facts of this record. If that view is well founded, and the statute as amended by the Act of 1909 is constitutional, it is decisive of the ease and renders unnecessary a review of the many other' interesting questions presented by counsel.

Sec. 7242, R. S. 1909, a section of the Local Option Law, as enacted in 1887, contained this provision: ‘ ‘ The election in this act provided for, and the result, thereof, may be contested in the same manner as is now provided by law for the contest of the elections of county officers in this State.” In the case of Kehr v. Columbia, 136 Mo. App. 322, it was held that the foregoing provision was unenforceable for the reason that no party was authorized to bring such a proceeding, or to defend against it if brought. Pursuant to that decision the Forty-fifth General Assembly (Laws 1909, p. 470) amended said section by adding thereto- and to the foregoing provision, the following: “by any qualified voter of the municipal body or of the county in which said local option election shall be held by an action to contest as herein provided, and which shall be brought against the municipal body or the county holding said election.” As heretofore stated, Nixon, J., concurred in affirming the judgment of the trial court, upon the ground that the foregoing statute as amended provided an exclusive remedy for the contest of a local option election, and that the remedy by a writ of mandamus was without authority of law. Relator thereupon alleged, by motion to transfer the cause to this court, that said section 7242, in so far as it authorized the contest of an election, was in contravention of Sec. 28, Art. 4, of the Constitution of this State, in that such provision was not clearly expressed in the title of the act, and upon that ground rests the jurisdiction of this court. That the constitutional question was regularly raised and is properly presented by the record, is not contested by respondents.

I. The title of the Local Option Act (Laws 1887, p. 179) is as follows: “An act to provide for the preventing of the evils of intemperance by local option in' any county in this State, and in cities of twenty-five hundred inhabitants or more, by submitting the question of prohibiting the sale of intoxicating liquors to the qualified voters of such county or city; to provide penalties for its violation, and for other purposes.’5' Is such title sufficient to uphold the provision for the contest of the election referred to and provided for in the act? We think it is.

The title purports to cover the subject of an election for the purpose of prohibiting the sale of intoxicating liquors, and a provision in the act for a contest of the election so held is so clearly germane and directly connected with the subject expressed in the title that we entertain no doubt as to its constitutionality upon that ground. An attack upon the validity of a statute because of alleged conflict with the constitutional provision now under consideration is so frequently made and has been considered in so many cases by this court that we deem it unnecessary to do more than state our conclusion, and cite a few of the authorities which discuss the question and fully sustain the conclusion reached. [Coffey v. City of Carthage, 200 Mo. 616; State v. Doerring, 194 Mo. 398; State ex rel. v. Slover, 134 Mo. 10.]

II. Is relator entitled to relief by writ of man-damns, under the facts of this record? We are of the opinion that he is not. Mandamus is an extraordinary writ and will be granted only when the relator, as alleged in the petition in this case, is without “other legal remedy.” This principle of law is well established, and the decisions of this court are in full accord with it. As said by this court in the case of State ex rel. v. McAuliffe, 48 Mo. l. c. 114: “The principle is unquestioned, laid down by the text-writers and established by the adjudged cases, that mandamus will only lie where the relator has a specific right and the law has provided no other specific remedy.” See, also, State ex rel. v. Engelmann, 86 Mo. l. c. 561; State ex rel. v. Smith, 104 Mo. 661; 2 Spelling on Extraordinary Remedies, 1374; 26 Cyc. 175; 19 Am. and Eng. Ency. Law (2 Ed.), 745.

It is shown by the pleadings herein and by the records of the county court introduced in evidence that the ground, and the only ground, upon which the respondents refused the dramshop license to the relator, was that an election had been held under the Local Option Law in the city of Carthage, where relator proposed to keep his dramshop, and that as the result of such election the law had been declared in force and effect in that city. If the law had been so adopted it necessarily followed that respondents rightly refused the license. That much relator concedes, but he attacks the legality of the election and asserts the right to contest it by mandamus upon a number of grounds, every one of which would have been available in the statutory proceeding provided for that purpose in the Local Option Law. It therefore follows that as a specific and adequate remedy was provided by the statute, relief by mandamus must be denied.

The same result is reached if we consider the question from the point of view of the rights of the parties and the remedy as provided by the Local Option Law.

It was within the power of the Legislature to designate the tribunal, the parties and the procedure for the contest of an election. [Sec. 9, Art. 8, Constitution of Missouri; State ex rel. v. Slover, 134 Mo. 10; State ex rel. v. Mason, 77 Mo. 189; State ex rel. v. Francis, 88 Mo. 557.] In the exercise of that power the General Assembly of this State enacted Art. 67 Ch. 43, R. S. 1909, prescribing a complete remedy for the contest of an election to office by a private citizen. Such right of contest did not exist at common law, and therefore the statutory remedy is exclusive. [State ex rel. v. Slover, supra; State ex rel. v. Mason, supra; 15 Cyc. 394; 7 Ency. Pl. & Pr. 377; Sedgwick, Const. Stat. and Cons. Law, 343.] In the Slover case, supra, l. c. 14, this court said: “It was clearly competent for the Legislature to create the office of marshal of Jackson county and to provide a tribunal to hear and determine all contests therefor and having done so in one and the same act the jurisdiction thus conferred is exclusive unless otherwise expressed or plainly manifested,” and, l. c. 15: “A contested election is a purely statutory proceeding in Missouri, both as-to the tribunal and the character of the proceeding* and was unknown at common law.”

In providing that the election under the Local Option Law “may be contested in the same manner as is now provided by law for the contest of the election of county officers in this State,” the Legislature adopted another statute or mode of procedure by reference, a practice in legislation discussed at length and upheld by this court in a number of recent decisions. [State v. Peyton, 234 Mo. 517; State v. Cox, 234 Mo. 605; State ex rel. v. Taylor, 220 Mo. 618.]

The 1909 amendment of the Local Option Law not only conferred the right upon “any qualified voter” to contest the election in accordance with the procedure in election contests, but it also conferred upon “'the municipal body or the county holding such ■election” the rights of a contestee in case of a contest under the general election law. That means, among ether things, the right to be heard in court in any action contesting -the legality of the election, and the .right to notice of such contest “within twenty days after the votes shall have been officially counted,” a failure to give which notice works a forfeiture of the right to contest. [Sec. 5924, R. S. 1909; Castello v. St. Louis Circuit Court, 28 Mo. 259.]

The statutory remedy recognizes the right of the municipality or county holding the election to have its day in court to defend against an attack upon the result of the election as declared, whether such result be in favor of or against the adoption of the law, and likewise the right of the qualified voter to contest the election. Suppose the result should be wrongfully declared and promulgated as against the adoption of the Local Option Law, when the fact was otherwise. It is plain in such case that those favoring the adoption of the law could not have the legality of the ■election and the result thereof litigated, either by a proceeding in the county court or by mandamus in the circuit court. They would have but one remedy and that the remedy provided by contest under the statute. And if that remedy is exclusive as to those favoring the adoption of the law, no good reason can be given why it should not also be exclusive as to those opposed.

As shown by the facts of this record the relator appeared in the county court a year after the Local Option Law had been adopted and was in force and effect in the city of Carthage, and upon an application for a dramshop license, without the municipality or any legal representative of the State being a party to the proceeding, asked the court to hold the local option election and the result thereof invalid, and that an important public statute was not in force in the city ■of Carthage, although it had been otherwise declared by the regularly constituted authorities, pursuant to an election for that purpose. That the respondents, as members of the county court, properly refused to take such action, and that the circuit court properly denied the peremptory writ of mandamus against the respondents, is fully sustained by the law governing the ■contest of elections, and by the foregoing principles ■of the law of mandamus. The judgment is affirmed.

All concur except Graves, 3who dissents in an opinion filed.

DISSENTING OPINION.

GEAVES, J.

— The principal opinion is predi-cated on the theory that, because we have a statute which authorizes a contest in local option elections, fhat therefore this relator had an adequate remedy -other than by mandamus, and for that reason the writ should be refused. It proceeds further upon the theory that the contest proceeding is an exclusive remedy, and there having been no contest within the time, the whole matter is foreclosed. To these propositions' I ■cannot assent. What the real merits of the case are, I have not investigated and therefore express no opinion, but if these two are the only reasons for refusing “the writ, I can see no reason why it should not go. There may be other reasons in the record, which would preclude the issuance of the writ, but it is only my purpose to voice my dissent as to the two pivotal •questions discussed in the principal opinion. These I take in inverse order.

1. Failure to contest an election does not preclude one having an interest from attacking the validity of the election. Suppose the record of the county court failed to disclose a petition sighed by the requisite number of petitioners. Suppose the record failed to show the requisite notice. Suppose the record failed to show a proper canvass of the returns. In fact we might designate a dozen things which go to make up the county court’s record which might be challenged. Not only challenged, but successfully challenged. In other words its silence upon jurisdictional questions might itself render an otherwise valid election nugatory. These are not things investigated in what we understand to be contest proceedings. The statute-of 1909 simply places this election in the category of election for officers, so far as contests are concerned. It designates the contestant and the contestee, but it. does not add to the procedure things which are not contemplated in ordinary contests for office. Now in contests for office the proceeding is based upon the theory that the election as a whole is not defeated,, but that by some acts during the election contestant or contestee has been defrauded of his rights. The contest mentioned in the statute proceeds upon the-theory that there has been an election, and the only question is as to what the result has been as between contestant and contestee. Both are claiming under the election.

But in local option elections and other special elections there are other things which of themselves render the whole proceeding void. Some of those things we have named. It will not do therefore to-announce the broad rule, as the principal opinion seemingly announces, that all matters are set at rest by a*, failure to contest within the statutory period.

2. Nor do we believe that the statutory proceeding by contest is an exclusive remedy. Prior to the statute we had a remedy by mandamus. The remedy has been so often recognized by the courts, that citation of the cases wherein the remedy has been recognized in local option cases would be useless. As lawyers we have tried them at the bar, both in circuit and appellate courts. There is nothing in this statute-as to contests which attempts to make it an exclusive remedy. Usually when there is an existing remedy and a statute is passed which does not within itself purport to make it the exclusive remedy, the statutory remedy is a cumulative one, and not pn exclusive one. Such has been the general construction given to statutory remedies. For this as well as the . reason first above assigned, I do not believe the contest proceeding provided for by the statute is an exclusive remedy. If these are the only grounds in this record for refusing the writ I am satisfied that we have another ‘ ‘ guess coming.” .

3. I said that I would not go beyond the principal opinion, and would express views upon hut the two points. I shall, however, go a step further, but still within the question discussed by the opinion. I agree that the title of the bill is not such as to make the new contest law invalid, hut will suggest that Sec. 9 of Art. 8 of the Constitution only speaks of contests for office and not of contests of elections upon public questions. When that section authorizes the Legislature to act, might not its authority he limited to the subject expressed in the Constitution? The Constitution closes the ballot boxes except as to “contested elections.” [Sec. 3, Art. 8, Const, of 1875.] The only contested elections spoken of in the Cons fitution are “of all public officers, whether state, judicial, municipal or local.” Not a word in the Constitution about contests over other matters. It is a question whether there is any constitutional warrant for the Act of 1909. This we offer only as a suggestion. What I desire to do is to dissent from the doctrine announced by my brother as above indicated under points 1 and 2 of these remarks.