author: WOODSON, J.

text:
    GEORGE A. C. WOOLLEY and EDWIN S. FISH, Appellants, v. DAVID HENRY MEARS and JOHN D. WOODRUFF, Executors Under Will of MARION V. MEARS, and DAVID H. MEARS.
    Division One,
    March 1, 1910.
    1. REAL ESTATE AGENT: Written Contract: Unconstitutional Statute. The Act of March 28, 1903, Laws 1903, p. 161, providing that any person who shall offer for sale any real property without the written authority of the owner, shall be deemed guilty of a misdemeanor, is unconstitutional and void, for the reason it impairs and infringes upon the rights and liberty of all persons to choose whatever lawful occupation they may choose to follow. And being void, it is no defense to the suit of a real estate agent for the recovery of commissions earned by him in selling defendant’s land.

      2. -: -: -: Special Law. Said statute is also unconstitutional as a special law regulating labor or trade, because it applies only to cities of three hundred thousand inhabitants or more, when, if otherwise valid, there is no good reason why it should not be made applicable to all other cities and portions of the State.
    3. Constitutional Question: Timely Raised. Where the suit originated before a justice of the peace, where no pleadings are required, and on a retrial de novo in the circuit court the court gave an instruction for defendant in the language of the statute, which barred a recovery by plaintiff, the constitutionality of the statute is timely raised by objecting and excepting to the instruction when given and by assailing said statute in the motion for a new trial.
    Appeal from St. Louis City Circuit Court. — Eon. Jesse A. McDonald, Judge.
    Reversed and remanded.

      Lubke & Lubke for appellants.
    (1) A real estate broker, who has found a purchaser for his principal’s property with whom the principal makes a. contract to sell the property and who is ready, willing and able to carry out the same, is entitled to reasonable compensation for his services, in the event no price has been agreed on. Gelatt v. Ridge, 117 Mo. 553 ; Grether v. McCormick, 79 Mo. App. 325; Finley v. Dyer, 79 Mo. App. 604; Lipscomb v. Russ, 81 Mo. App. 53; Sallee v. McMurry, 113 Mo. App. 253. (2) The act of the Legislature approved March 28, 1903, Laws 1903, p. 161, making it a misdemeanor in cities of three hundred thousand inhabitants or more to offer for sale any real property without the written authority of the owner of the property or of his attorney in fact, or of a person who has made a written contract for the purchase of such property, and prescribing the punishment therefor, is void, because' in violation (a) of the Constitution of the United States, art. 1, sec. 10, and of sec. 1 of the Fourteenth Amendment thereto; and (b) of the Constitution of this State, art. 2, sec. 15, and art. 4, sec. 53. Fisher Co. v. Woods, 187.N. Y. 90; Grossman v. Caminez, 79 N. Y. App. Div. 15; Cody v. Dempsey, 86 N. Y. App1. Div. 335; State v. Walsh, 136 Mo. 400; State v. Thomas, 138 Mo. 100; State v. Jnlow, 129 Mo. 163; In re Flukes, 157 Mo. 125; State ex rel. v. Turner, 210 Mo. 77; State ex rel. v. Messerly, 198 Mo. 351; Henderson v. Koenig, 168 Mo. 375; State, v. Buchart, 144 Mo. 83; State v. Grannemann, 132 Mo. 326; Murnane v. St. Louis, 123 Mo. 479; State ex rel. v. Herrmann, 75 Mo. 340; State ex rel. v. County Court, 89' Mo. 237. (3) Even though this Act of 1903 be held valid, plaintiffs were nevertheless entitled to. recover against the defendants, because defendants ratified plaintiffs’ acts and received the benefit of their services. Trust Co. v. Niggemann, 119 Mo. App. 56; Tooker v. Duckworth, 107 Mo. App. 231; Smyth v. Hanson, 61 Mo. App. 285; Prince v. Baptist Church, 20 Mo. App. 332; Prietto v. Lewis, 11 Mo. App. 600; Whitely v. Terry, 83 N. Y. App. Div. 197.

      W. H. Allen for respondents.
    (1) A constitutional question must be timely raised, in some appropriate manner; it is too late to raise it in the motion for a new trial, or in arrest. Lohmeyer v. Cordage, 214 Mo. 685; State v. Gamma, 215 Mo. 100; Hartzler v. Railroad, 218 Mo. 562 ; State v. Boehler, 220 Mo. 4. And it is too late to raise it for the first time in the circuit court, where the case comes there on appeal from a justice of the peace. In re Estate of Strom, 213 Mo. 1. (2) Under the ack approved March 28, 1903, Laws 1903, p. 161, a real estate agent who procures a purchaser for real estate placed in his hands for sale, in violation of the terms of the act, cannot recover a commission from the owner for such sale. Rothwell v. Gibson, 121 Mo. App. 279; Filey v. Handley, 121 Mo. App. 358; Charles v. Arthur, 84 N. Y. S. 284; Kronberger v. Quinn, 86 N. Y. S. 139; Downing v. Ringer, 7 Mo. '585;' Amusement Co. v. Park Co., 192 Mo. 404; Bick v. Seal, 45 Mo. App. 475; Tandy v, Commission Co., 113 Mo. App. 409. (3) There is no such thing in law as the ratification of an act or transaction, which at the time of its performance was prohibited by statute. The parties cannot legalize that which the law has declared illegal. Even if a new contract be made, yet if it grows immediately out of the illegal transaction, it is as much tainted by it as the original contract. Bick v. Seal, 45 Mo. App.' 480; Kronberger- v. Quinn, 86 N. Y. S. 139; Buckingham v. Fitch, 18 Mo. App. 91; Wool-folk v. Duncan, 80 Mo. App. 421; Amusement Co. v. Park Co.,-192 Mo. 404; Tandy v. Commission Co., 133 Mo. App. 409. (4) A general allegation that a statute is unconstitutional is not sufficient. The particular article and section of the State or Federal Constitution which it violates must be specifically and distinctly pointed out, and none other can be considered. Lohmeyer v. Cordage Co., 214 Mo. 688; Ash v. Independence, 169 Mo. 77; State to use v. Lumber Co., 170 Mo. 7; Hardin v. Carthage, 171 Mo. 442. (5) Every presumption is to be indulged in favor of the validity of an act; and courts will not declare a statute to be unconstitutional unless its violation of the Constitution is so manifest as to leave no room for reasonable doubt. State ex rel. v. Fort, 210' Mo. 526; State v. Tower, 185 Mo. 102; Ex parte Loring, 178 Mo. 194; State v. Gregory, 170 Mo. 598; State ex rel. v. Yancey, 123 Mo. 402. (6) The above-mentioned act of the Legislature approved March 28, 1903, Laws 1903, p. 161, is not unconstitutional, as being violative of the Constitution of Missouri, art. 4, sec. 53. State ex rel. v. Wofford, 121 Mo. 69; Ex parte Lucas, 1601 Mo. 235; Owen v. Bear, 154 Mo. 415; State v. Tower, 185 Mo. 87; State v. Layton, 160 Mo. 498; State v. Haynes, 88 Mo. 344; Haynes v. Mo., 120 U. S. 68; Kansas City v. Segmiiler, 151 Mo. 189; State v. Sibley, 131 Mo. 519; State v. Yancey, 123 Mo. 391; Dunne v. Kansas City, 131 Mo. 1.
   WOODSON, J.

This suit was begun before a justice of the peace in the city of St. Louis, to recover the sum of $175, commissions claimed to be due the plaintiffs from the defendants for procuring a purchaser for real estate in the city of St. Louis, belonging to Marion V. Mears, one of the defendants. The trial before the justice resulted in a judgment in favor of the defendants, from which plaintiffs appealed to the circuit court. Shortly after the appeal was perfected, Marion V. Mears died, and the cause was duly revived as to her against her executors. A trial de novo was had in the circuit court, which also resulted in a judgment in favor of the defendants. From this judgment plaintiffs duly appealed the cause to this court.

The evidence showed, that plaintiffs were real estate agents doing business in the city of St. Louis, and that some two years prior to the date of the trial they solicited defendants to let them undertake to sell said real estate, which was located in said city, for the sum of $7000 net. But being unable to sell said property for that sum, they, without authority, made a contract to sell the same to F. H. Kenthan for the price of $6800, and accepted $100 earnest money from him to bind the bargain, subject, however, to the approval of defendants. Upon the submission of this contract to defendants for approval, they declined to accept it, but they again agreed to take $7000 for the property; and at the same time the contract of sale before mentioned was amended by changing the figures therein stated, the amount of the purchase, $6800; to $7000. The contract in this changed condition was presented to the purchaser, Kenthan, who assented to the change, and, on April 17, 1905, indorsed on the back thereof his acceptance of the same.

The evidence for plaintiffs tended to show that during the time the sale to Kenthan was being negotiated, no mention was made by plaintiffs or defendants as to the compensation to be paid to the former by the latter for their services performed in the premises. "While upon the other hand, the evidence for defendants tended to show that they were to receive $7000 net as the purchase price of the property. The usual compensation paid to real estate agents for their services for. making sales of this class of property in that city was, at the time mentioned, two' and one-half per cent of the purchase price.

It was admitted that the purchaser was ready, able and willing to carry out the terms of the contract, but the vendors declined to convey the property to him. Also that plaintiffs had no written authority from defendants, nor from any one authorized to act for them, to sell said property.

The foregoing was substantially all of the evidence introduced at the trial in the circuit court.

At the conclusion of the introduction of all the evidence in the- cause, the defendants asked and the court gave the following declarations of law:

“1. The court declares the law to be that, under the pleadings and evidence in this case, plaintiffs cannot recover.
“2. The court declares the law to be that unless the plaintiffs herein had written authority of the owner of the real property in question, or of his attomey-infact appointed in writing, or of a person who has made a written contract for the purchase of such property, with the owner thereof, to offer said property for sale, plaintiffs cannot recover commissions for procuring a purchaser for said property, and judgment herein must be for the defendants.”

To which action of the court in giving said declarations, and each of them, the plaintiffs duly objected and saved their exceptions.

The court thereupon in passing upon the case made and filed the following memorandum of its decision:

“The plaintiffs herein having failed to procure the authority which the statute contemplates to offer for sale the defendants’ real estate, they cannot recover the commission which the evidence in this case shows them to have earned. Judgment for the defendants. ’ ’

The motion for a new trial assigned, among others, the following reasons therefor:

“Third. Because the court erred in giving improper and illegal instructions asked by the defendant.
“Fourth. Because the finding and judgment of the court is against the evidence and weight thereof.
“Fifth. Because the finding of the court is against the law and the evidence, and should have been in favor of the plaintiffs and against the defendants.
“Sixth. Because the ruling of the court that the plaintiffs were not entitled to recover in this case because they were not authorized in writing by the defendants to sell their real estate, pursuant to an act of the Legislature, approved March 28,1903, and found in Session Acts of 1903, at page 161, is erroneous, because said act is illegal and void because in violation of the Constitution of the United States, and the Constitution of the State of Missouri, and because said act is particularly in violation of section 32 of article 4 of the Constitution of the State of Missouri, prohibiting special and local laws. ’ ’

The assignments of errors present substantially the same errors complained of by plaintiffs, in the motion for a new trial; and for this reason it will be unnecessary to restate them here.

I. The chief proposition presented by this record for determination involves the constitutionality of section 1 of an act of the Legislature, approved March 28,1903, Laws 1903, p. 161, which reads as follows:

. “Section 1.' In cities of three hundred thousand inhabitants or more, any person who shall offer for s'ale any real property without the written authority of the owner of such property, or of his attorney-in-fact, appointed in writing, or of a person who has made a written contract for the purchase of such property, with the owner thereof, shall be deemed guilty of a misdemeanor and fined in a sum of not less than ten dollars nor more than three hundred dollars.”

It will be observed that this act makes it a misdemeanor for any one to offer for sale any real property without the written authority of the owner thereof or of his attorney-in-fact, or of a person who has made a written contract for the purchase of such property, and prescribes a penalty for its violation in a sum of not less than ten dollars nor more than three hundred dollars.

Counsel for appellants insist that said section of said Act of 1903 is violative of section 15 of article 2 and section 53 of article 4 of the Constitution of Missouri. The foregoing provisions of the Constitution prohibit the Legislature from enacting any law impairing the obligations of a contract, and from making any irrevocable grant of special privilege to any one-; and forbid the passage of any special or local law when a general law may be made applicable, or the enacting of any special law regulating labor, trade, mining or manufacturing. Counsel for appellants insist that said act is violative of all of said constitutional provisions, and cites in support of that insistence the cases of Frank L. Fisher Co. v. Woods, 187 N. Y. 90, and Grossman v. Caminez, 79 N. Y. App. Div. 15.

The statute under consideration in the New York cases was identical with the act involved in the case at bar, except there the statute applies to cities of the first and second class instead of cities of three hundred thousand inhabitants or more, as the act in question does. See Laws of New York, 1901, p. 312.

The New York Court of Appeals in the former case, in the discussion of this question, used the following language:

“The only object and purpose apparent is to shield the landowner from being compelled to pay for services rendered, unless the person rendering them can show written authority therefor. In the real estate business the owner has a shield from unjust claims, that does not exist with reference to many other professions, trades or occupations. The agent is not entitled to his commissions until he brings to the owner a purchaser and their minds meet , upon the terms. The owner can, therefore, always refuse to receive or enter upon negotiations with a person introduced by a real estate broker who has not been authorized by him. If, therefore, the Legislature, in the exercise of its police powers, may, by this act, lawfully make it a misdemeanor for a person to render services to an owner in procuring a purchaser without his written authority, it may also provide that a lawyer should be guilty of a misdemeanor for drawing a contract for a client, or for rendering him any other service, without having authority therefor in writing. It would also be competent to place like restrictions upon every employee in every trade and occupation. It is difficult to see how there could be any limitation to' the power of the Legislature in this direction. To our m'inds this is going too far. It is an arbitrary infringement upon the liberty and rights of all persons who choose to engage in such occupation. Had the act been for the purpose of regulating the business of brokerage, or a statute of frauds, a different question would have been presented; but it is neither. It relates, as we have seen, to any and every person^ and instead of making the oral contract void, it makes the person employed guilty of a misdemeanor and punishable as a criminal. Undoubtedly, the power of the Legislature to- enact what shall amount to a crime is exceedingly large, but, as was said by Peckham, J., in People v. G-illson, supra: ‘That there is a limit even to that power under our Constitution, we entertain no doubt, and we think that limit- has been reached and passed in the act under review. ’ So we conclude with reference to this act.”

And in Grossman v. Caminez, supra, the court in holding this same act invalid, in discussing the power of the Legislature, said: “The Legislature may not,' under the guise of protecting the public interests, arbitrarily interfere with private business, nor impose unusual and unnecessary restrictions upon lawful occupations.”

The reasons given by the New York courts for holding said statute to be unconstitutional and void seems to us to be sound and unanswerable; and it would be a useless waste of time and labor to discuss the question further.

We, therefore, hold that said Act of 1903 is invalid, for the reason that it impairs and infringes upon the rights and liberty of all persons to choose whatever lawful occupation they may deem proper to follow:

II. We are also of the opinion that said act is violative of section 53 of article 4 of the Constitution, for the reason that it is a special law regulating labor, or trade; and because, by its express terms, it applies only to cities of three hundred thousand inhabitants or more, when, if otherwise valid, there is no good reason which could be assigned why it should not- be made applicable to all cities and other portions of the State. If there is any good reason for enacting such a statute for cities of three hundred thousand or more inhabitants, then the very same reason would be a valid reason for making it applicable to all cities of less than three hundred thousand. Statutes- of similar operation in scope have been considered by this court many times.

In State v. Walsh, 136 Mo. l. c. 405, this court, in discussing the Act of 1895, punishing bookmaking when carried on outside of the enclosure of a regular race course, but not when conducted inside of such a course, said: “Now, it is a rule of long established construction in this State, a rule so well settled that it admits no contravention, ‘that a statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of.a class is special.’ [State ex rel. v. Tolle, 71 Mo. 650; State ex rel. v. Herrmann, 75 Mo. 340; State v. Julow, 129 Mo. 163.] In the case last cited, it was ruled that while the Legislature might legislate in regard to a class of persons, yet that they would not be permitted to take what might be termed a natural class of persons, split that class in two, and then arbitrarily -designate the dissevered fractions of the-original unit as two classes, and thereupon enact different rules for the government of each. This is precisely what has been done in the case at bar; the act bestows protection on all who ply their calling and reap their financial harvests inside the precincts of a regular race course, and inflicts punishment on all who do likewise outside.of those artificial boundaries.”

In State v. Thomas, 138 Mo. 100, the Act of 1891, prohibiting the sale of bets on the result of any contest which was to take place outside of the State and prescribing a punishment therefor, came before this court for consideration. It was there contended that said act was unconstitutional, for the reason that by implication bets made upon such contests within the State were not prohibited and made punishable thereby, while all bets made upon such contests without this State were, by express terms, made punishable. In holding that act unconstitutional, this court, on page 100, said: “Is then the Act of 1891 in accord with the Constitution? It is true that act does not in terms designate as exempt those gamblers or other offenders who are not embraced within the penalties it prescribes, but nevertheless it does exempt them as effectually as though they, i. e., those who gamble on results to occur in this State, had been expressly named and exempted. What a statute will imply is as much part and parcel of legislative enactment as though set forth in terms. [State ex rel. v. Buchanan Co., 108 Mo. l. c. 242; Sutherland, Stat. Construe., sec. 334, and cases cited.] And ‘where a statute enumerates the persons or things to be affected by its provisions, there is an implied exclusion of others; there is then a natural inference that its application is not intended to be general.’ [Sutherland, Stat. Construe., sec. 327.] And that act is a special law because it separates offenders who gamble on events to occur outside of this State, or who sell' to minors pools based on such results, from those who do the very same things as to' events occurring within this State; prescribes punishment for the former, and provides protection for the latter, and this as effectually as though such protection were granted in terms. The act thus divides a natural class into two portions, making two classes out of one, and thus in effect arbitrarily enacts different rules for the government of each. [State v. Julow, 129 Mo. 163; State v. Walsh, supra.] ” See also State v. Julow, 129 Mo. 163; In re Flukes, 157 Mo. 125; State ex rel. v. Turner, 210 Mo. 77; State ex rel. v. Standard Oil Co., 218 Mo. 1.

III. Counsel for respondents insists that this court should not consider the constitutional questions before stated, for the reason that they were not timely raised and presented by counsel for appellants.

This insistence is without merit, for the reason that this suit was begun before a justice of the peace, where no pleadings are required; and the trial court based tbe declarations of law upon said Act of 1903, and at tbe time appellant objected to tbe court giving said instructions and to tbe judgment of tbe court because said act was unconstitutional. These objections were overruled, and exceptions were duly saved. According to tbe uniform rulings of this court, appellants were timely in raising said constitutional questions. [Lohmeyer v. Cordage Co., 214 Mo. 685.]

We, are, therefore, of the opinion that tbe judgment should be reversed and the cause remanded; and it is so ordered.

All concur.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    ALFRED BOWMAN v. AMERICAN CAR AND FOUNDRY COMPANY, JOHN LAWLER and HACK CLARK, Appellants.
    Division One,
    March 1, 1910.
    1. NEW TRIAL: Instruction: Reasonable Care. An instruction for a foundry company, on whose grounds plaintiff was working as the servant of an independent contractor of the company, engaged in piling its pig iron, when a pile fell and injured plaintiff, which tells the jury that the company was not the insurer of plaintiff’s safety, nor required to keep its premises absolutely safe, but only to keep them reasonably safe, and if it piled its pig iron in such a manner that it appeared to be secure and safe and the pile had been standing .for four months, then, etc., was not erroneous, and the giving of it afforded no basis for granting plaintiff a new trial after verdict for the company.
    2. NEGLIGENCE: Piling Pig Iron: No Evidence. Where plaintiff was piling pig iron by the side of a pile which had stood for four months and which fell and injured him, and there was no evidence that it was negligently constructed, or contained a defect that was known or could have been known by the exercise of ordinary care, and plaintiff was simply instructed to pile the pig iron, and permitted to choose his own place and had room to choose one farther from t^e standing pile, and saw nothing himself to indicate that it was dangerous or liable to fall, although he was an experienced worker on the grounds, there is no evidence to justify the submission of the case to the jury,

      3. -: -: -: Against Foreman. Plaintiffs testimony that his employer, who was an independent contractor, told him that the company’s foreman told him where to pile the pig iron, was mere hearsay, and having been denied by both, there was no evidence upon which to base a verdict against the foreman.

      i. -: -: -: Dangerous Height of Pile: Conjecture. The only defect in the pile of pig iron which fell on plaintiff that he attempted to prove was that it was higher than usual, but he did not offer any evidence to show its additional height rendered it dangerous. Held, that neither the court nor the jury could take cognizance that a height of seven or eight feet rendered the pile dangerous, and to base a verdict upon such fact, if dangerous it was, would be to base it on conjecture.
    Appeal from St. Charles Circuit Court. — Hon. Jas. D. Barnett, Judge.
    Reversed and remanded (with directions).

      Watts, Williams & Dines and Wm. R. Gentry for appellants.
    (1) The instruction which the court gave in behalf of the defendant, marked D4, and on account of the giving of which the court granted the plaintiff a new trial, assigning its action in giving said instruction as error, was a perfectly correct instruction, and, therefore, no new trial should have been granted on account of giving same. (2) The demurrer to the evidence should have been sustained, because plaintiff failed to prove that he was injured by the negligence of defendants or any of them. This being true, no new trial should have been granted for a supposed technical error, even if the court had committed error in giving an instruction. Mockowik v. Railroad, 196 Mo. 550; Bradley v. Tea & Coffee Co., 213 Mo. 320; Moore v. Railroad, 17.6 Mo. 528; Wagner v. Light Co., 177 Mo. .60; Lomax v. Railroad, 119 Mo. App. 200. In this case the demurrer should have been sustained, (a) Because plaintiff failed to show that the accident was caused' by negligence in piling or maintaining the pile. Proof of the mere falling of the pile does not show negligence. Beebee v. Transit Co., 206 Mo. 419. It was necessary to show a dangerous place to work, and actual or constructive knowledge on the part of the master, before plaintiff was entitled to g*o to the jury, and plaintiff failed to do this. Wojtylak v. Coal Co., 188 Mo. 260; Bradley v. Tea & Coffee Co., 213 Mo. 320; Machine Co. v. Zakzewski, 220 111. 522; Meixner v. Brewing Co., 60 Atl. 259; Branco v. Railroad, 119 la. 211; Weizenski v. Railroad, 94 N. Y. Supp. 869; Martin v. Royster Guano Co., 57 S. E. 681; McPadden v. Campbell, 34 N. Y. Supp. 136. (b) Because the plaintiff was in a better position than the master to know the condition of the pile, its condition was obvious, the danger of its falling was one of the hazards of the work which he assumed by continuing in his employment. See cases cited under (a), (c) Because the pile may have fallen by reason of either of two causes. 1st. The master’s negligence (though that was not shown); or 2. Because of the act of plaintiff or his fellow-servants. For one of these, the master' would have been liable; for the other it would not have been liable. Wherever this is true, if plaintiff fails, as this plaintiff did, to show which was the cause, he should be nonsuited. Goransson v. Mfg. Co., 186 Mo. 300. (d) Because plaintiff made the inspection for himself, and relied upon his own judgment, not upon any inspection or assurance of defendant as to the safety of the pile of pig iron which he found standing, and which fell upon him. Adams v. Railroad, 78 N. E, 687.

      Edwards & Wilson for respondent.
   VALLIANT, J.

Respondent, plaintiff, while working on the premises of the American Car and Foundry Company, was injured in his person by. the falling on him of a pile of pig iron; he brought this suit praying judgment for $10,000 damages, alleging that his injuries were the result of the joint and concurrent negligence of the three defendants. At the conclusion of the plaintiff’s evidence the court, at the request of the defendant Lawler, gave an instruction that, as to him, the plaintiff was not entitled to recover, but refused a similar instruction asked by each of the other two defendants, and their exceptions are duly preserved. At the close of all the evidence the plaintiff dismissed the suit as to defendant Hack Clark. The case was submitted to the jurjr with an instruction to find for the defendant John Lawler, and instructions pro and con as to the defendant the American Car and Foundry Company. The jury returned a verdict for both the defendants. The plaintiff filed a motion for a new trial, which the court sustained on the ground that it had erred in one of the instructions given for the American Car and Foundry Company. From that order the two defendants have prosecuted this appeal.

The petition alleged that the three defendants, the American Car and Foundry Company, a corporation, John Lawler and Hack Clark, were engaged in operating a car and foundry plant and manufacturing railroad cars; that plaintiff was employed by defendants, and that while under their orders and directions, was engaged in moving and piling a lot of iron for the defendant corporation at a point adjacent to a large pile of pig iron about ten feet high and — feet long, on the premises of the corporation, which bad been placed there by the defendants; that the pile fell over on the plaintiff and inflicted very serious injuries, which are specified. The negligence charged is that the place in which the plaintiff was put to work was in an unsafe and dangerous condition, that the pig iron “had been so piled and placed as that it was liable to fall over at any time, and was so liable to fall over at any time, as to render it dangerous and unsafe for any one to engage in the work of piling iron immediately adjacent thereto; that defendants knew of the dangerous and unsafe condition of said pile of pig iron and knew of the dangerous and unsafe condition of the place at which they ordered and directed the plaintiff to work” or by the exercise of ordinary care could have known it, etc. The answer is a general denial and a plea of contributory negligence; there is also what the counsel call a plea of assumption of risk.

The testimony on the part of the plaintiff tended to prove as follows: The American Car and Foundry Company is a corporation engaged in conducting a foundry and railroad car manufacturing business with its plant in St. Charles. On the day of the accident the plaintiff, with two other men, was engaged in piling pig iron in the yards of the corporation along by the side of another pile that had stood there several months, when the old pile fell over and a number of pieces of the pig iron fell on plaintiff and inflicted very serious injuries. The piles were constructed in the form of piles of cord wood; the pieces of pig iron were about eighteen inches in length, some longer and some less, weighing about fifty or sixty pounds. The pile that fell was constructed in the usual way, except that it was higher than usual; the plaintiff estimated the height at from seven to eight feet; he said the usual height was five or six feet, that is, as high as a man on the ground could reach to put a piece on the top. Plaintiff had been working in that kind of business for several years. He and the two men who were working with him were in the employ of defendant Hack Clark and the two men were working under the plaintiff’s direction. Clark gave the orders to the plaintiff and he to the two men. Clark had directed him where to place the new pile, that is, told him to place it south of the old pile, but did not tell him how close to put it. There was space enough south of the old pile to put it several feet away, but they were piling it close to the old pile, and the stack was about two or two and one-half feet high when the old pile fell. He was asked if there was anything to indicate danger in the situation, to which he answered, “No, sir, I didn’t see anything that looked any ways dangerous; of course, if I had I wouldn’t have worked there; that is all there is to it.” “Q‘. Was there anything about that pile that looked unusual, that looked different from the way the piles ordinarily looked? A. Well, it didn’t hang anyways crooked much, it didn’t look to me like. Q. Piled about like the ordinary pile of pig iron in the yards? A. It was higher. . . Q. And during the time you were piling there was there anything at all that happened, before the crash came I mean, that made you think it would be a little dangerous there, you had better lookout? A. No, sir, nothing occurred. . . . Q. Those pieces weigh fifty or sixty pounds apiece? A. Tes, sir. Q. When you carry them and throw them on the' pile when it’s two or three feet high, they go with considerable jolt? A. Tes, sir. Q. Tou say you piled them so it was against the other pile? A. We was putting it — we didn’t pile it just butt against the other pile so hard, but what I call against the other pile, we left- a little vacancy between the piles. Q. The pieces you were piling were of different lengths? A. Tes, sir. Q. And you couldn’t tell when you threw a piece of pig iron up there, if it was a little longer than the other, you couldn’t tell positively whether the end would touch the pile or not ? A. No, sir. Q. It was just as apt to touch it as miss it? A. Tes, sir. . . . Q. Didn’t you or Green Pollard or Travis (the two men working with plaintiff) have any conversation while working there about the question of whether there’s danger of that falling or not? A. No, sir; that.man once, Green, said, ‘I wonder if that pile will fall?’ I says ‘No, I guess not, I think it’s all right.’ . . . Q. Tou saw no indication of it falling then? A. No, sir, . . . Q. How long had you been familiar with that sort of work, piling pig iron; off and on for a good many years hadn’t you. A. Yes, sir.”

Travis, one of the men working with plaintiff, testified: “Well the pile that fell over on him, I don’t know whether it was dangerous or not, it didn’t look any ways dangerous to me when I went to work there that morning.”

The testimony on the part of the defendants tended to prove as follows: The plaintiff and the men working with him were not in the employ of the American Car and Foundry Company, but of the defendant Hack Clark, who was an independent contractor engaged in doing work for the American Car and Foundry Company in its yards, work of unloading freight cars and piling iron. That Clark did not tell the plaintiff where to pile the iron, only told him to pile it, and he selected the place himself. The old pile which fell had been standing several months, it was about five or six feet high; the usual height, and piled in the usual manner; there was nothing in its appearance to indicate danger.

Among the instructions given was the following:

DA “The court instructs the jury that the defendant American Car and Foundry Company on the occasion in question was not an insurer of the safety of those who came upon its premises, nor was it obliged to keep its premises absolutely safe at all times; and if you find from the evidence that it exercised ordinary care to keep its premises reasonably safe it discharged its duty in that regard. If, therefore, you find from the evidence that the pile of pig iron which fell upon plaintiff had been standing in the same place for four months or more, that it was piled in such a manner that it appeared to be secure and safe and that there was nothing in the appearance of said pile of pig iron which would indicate to a reasonably prudent person that there was danger of its falling, then defendant American Car and Foundry Company is not liable for the injuries resulting to plaintiff from tbe falling thereof, even though you may find from the evidence that said pile was higher than such piles were usually piled. ’ ’

It was upon the giving of that instruction that the court based its order sustaining the motion for a new trial.

I. Even if we should find that there was evidence sufficient to justify the submission of the case to the jury we see no error in that instruction and no ground therefore to base the order sustaining the motion for a new trial. Respondent suggests no point in the instruction as error, nor does he suggest any other ground sustaining the ruling of the court in that particular. We hold that it was error to have sustained the motion for a new trial on that ground.

II. There was no evidence of negligence on the part of the defendants to justify the submission of the case to the jury. So far as Lawler is concerned his connection with the case consists only in the fact that he was foreman of one of the departments of the American Car and Foundry Company’s business. The plaintiff testified that Clark told him that Lawler told him where to pile the iron, but that was mere hearsay and both Clark and Lawler denied it. There was no evidence that the pile that fell was negligently constructed or that it contained a defect, that was known or could! have been known by the exercise of ordinary care. The pile had stood in place for several months; if it had been cord wood, possibly the length of time might have suggested that some of the pieces had become rotten, but this was pig iron.

The petition charges that it “had been so piled and placed as that it was liable to fall over at any time,” but it does not specify in what particular it was defective. Under that averment (assuming without conceding that it was sufficient to state ah act of negligence) the plaintiff could have introduced evidence to prove any defect in the construction or location of the pile that would indicate its dangerous condition, as that it was leaning to one side, or was not compact or otherwise, hut the only thing he attempted to prove was that it was higher than usual. He offered no evidence to show that the height rendered it dangerous. Men of experience in that business could have been found to testify that the height of seven or eight feet rendered the pile dangerous if such was the fact, hut neither the court nor the jury could take judicial cognizance that such was the fact. Yet with no evidence except that'the pile was seven or eight feet high the jury was left to conjecture that from that fact alone it was' dangerous. Jurors may sometimes draw on knowledge that comes from the common experience of mankind to assist them in reaching a conclusion, hut that is knowledge that men in general have, not a few in particular. If it is knowledge that comes by the experience of a class in a particular business it must be proven by evidence. There was no such evidence in the case; the only evidence that could he considered as bearing on the question was that of the plaintiff himself and his companion in labor and they both testified that viewing the pile and having seen it for months they saw nothing to indicate danger —how then could the jury say that it was dangerous? The plaintiff knew more about piles of pig iron than the average juror, he had been engaged for several years in piling and seeing piles, and he saw no danger, yet he asks the jury to conjecture that there was danger.

The only evidence in the case that tends to show the cause of the falling of the pile is the evidence of the plaintiff himself who testified that in making the new pile they placed it so near the old pile that the end of a piece of iron when it happened to be a little longer than other pieces and when it was thrown on the pile was liable to hit the pieces in the other pile and jar it. The common experience that we have above referred to might help us to see the possible consequence of the force of a jar caused by throwing against the old pile a piece of pig iron eighteen inches long and weighing fifty or sixty pounds. The record before us indicates that that is what the learned trial judge thought was most probably the cause. But it did not devolve on the defendants to point out the cause, the burden was on the plaintiff to show that the pile fell because of its own inherent defect, and that it was a defect which the defendants knew or would have known if they had exercised reasonable care. There was no witness on either side shown to be more experienced or more competent to judge of the condition of the pile than the plaintiff himself and he said he discovered no defect.

The judgment is reversed and the cause remanded to the circuit court with directions to overrule the motion for a new trial and enter judgment according to the verdict.

All concur.


author: GRAVES, J.

text:
    PETERS et al., Commissioners of South Market, Appellants, v. CITY OF ST. LOUIS, and GEORGE WEINBRENNER, City Marshal.
    Division One,
    March 1, 1910.
    1. MUNICIPAL CORPORATIONS: Limited Powers: Notice. A municipal corporation is but a public agency with limited rights and powers, and all persons dealing with it or accepting privileges from it must do so with notice and knowledge of those limitations. If it enact ordinances in excess of its delegated powers, they are void.

      2. -: Ultra Vires: Pleaded By City. The city can plead that its ordinances are ultra vires and void, because the real party is the general public, and not the derelict officials.
    3. -: -: Establishing Market in Street. A city possessed with a power to control its streets, and also clothed with a power of establishing, controlling and regulating market places, cannot exercise such powers to the extent of appropriating a large portion of a street for a brick building to be used as a market place. "Where land has been dedicated to public use as a street, it cannot be diverted from that use by ordinances authorizing the erection of a market place, 36 by 375 feet, in the middle of the street, to be built by funds voluntarily subscribed by individual stockholders, to whom the rents are to be distributed, and to be managed and controlled by three commissioners elected by the stockholders. Such ordinances do not burden the street with an additional public use, but they absolutely withdraw a material portion of it from a general public use.
    4. -: Nuisance: Res Adjudícala: Adversary Parties. Parties to a judgment are not bound by it, in a subsequent controversy between each other, unless they were adversary parties in that action. So that where the circuit attorney instituted a suit in the circuit court to have declared void ordinances authorizing the establishment by private persons of a large market place in the midst of a public street and to have it declared a nuisance, and made a great number of persons defendants, among others the city and the three commissioners ofbhe market, and the city contented itself with a general denial, and other defendants filed an elaborate answer, and the bill was dismissed, the invalidity of the ordinances being thereby denied, the commissioners and the city were not adversary parties, and that suit was not res adjudioata on the question of the validity of the ordinance raised by this suit of injunction brought by the commissioners against the city and its executive officer to enjoin them from removing the market house.
    5. -: -: Limitations. The statutes of limitations do not apply in a suit to remove a market house from a dedicated public street, where its commissioners claim under and by virtue of void ordinances authorizing the market place, and not otherwise.
    Appeal from St. Louis City Circuit Court. — Eon. O’Neill By an, Judge.
    Affirmed.

      Wm. E. Wise and Kehr & Fittmann for appellants.
    (1) The power to establish, erect and regulate markets is not a governmental power of the city, but belongs to it in its proprietary business capacity. (2) The power in question may be lawfully exercised through individuals or associations as agencies of the public. (3) Markets established by the city are public markets, although the cost of erection and the burden of management are borne by private individuals or associations, under arrangement with the city for reimbursement of capital outlay and expense of maintenance. (4) The appropriation of a portion of a street for a market, by virtue of an ordinance of the city, although subject to be complained of by the State, or by individuals specially injured, does not vitiate the grant of the market privilege by the city. The grant is nevertheless good against the city. (5) Whatever infirmities may inhere in this ordinance of 1839 when considered with regard to the rights of the State or the rights of property-holders thereby injuriously affected in a special way, the ordinance is nevertheless a complete contract between the city and the market association. The obligation of this contract is protected beyond impairment by any legislative or executive action by the city. (6) The city is estopped to proceed to destroy this market, as here undertaken: (a) By its own legislation, (b) By investments for the public benefit, in pursuance of that legislation, (c) By long-continued acquiescence and recognition of the market as a public market established and maintained by virtue of a municipal grant and charter, (d) By the opposition of the city to action of the State to abate the market as unlawful. (7) The State is itself barred by the Statute of Limitations to complain of this market as an improper occupation and use of the street. (8) The State is also barred of any action to complain of this market as an unlawful occupation of the street by the judgment in the case of State ex rel. v. Fisse. This judgment is conclusive against the city of St. Louis. The title to the streets is in the State. The city as a subordinate political agency of the State cannot assert rights to or in streets superior to or exceeding the rights of the State itself. (9) This judgment is also conclusive against the city because it was procured and induced by the action of the city, as a party to the cause, affirming the validity of its own ordinances when assailed, and denying all title of its sovereign, subversive of its own ordinance.

      L. E. Walther and B. M. Charles for respondents.
    (1) Once a highway, always a highway. (2) A grant of power to a municipal corporation to establish markets and build market houses does not confer any authority to construct them on the public highways. 1 Dillon on Mun. Corps. (4 Ed.), sec. 383; Wartman v. Philadelphia, 33 Pa. St. 210;' Harrisburg’s Appeal, 19 Am. and Eng. Corp. Cas., 603; Mayor v. Wilson, 49 Ga. 476; State v. Mobile, 5 Porter (Ala.) 279. a. Neither .the State, nor its agent, the city, can abdicate, nor change the character of, its trust over property in which the whole people are interested. Railroad v. Illinois, 146 H. S. 453; Reighorn v. Flinn, 189 Pa. 355; 1 Dillon on Mun. Corps. (4 Ed.), sec. 383, p. 457, and cases cited in note, quoted in Schopp v. St. Louis, 117 Mo. 135; Sugar Co. v. Elevator Co., 82 Mo. 121; Price v. Thompson, 48 Mo. 361; State ex rel. v. St. Louis, 161 Mo. 371; Berry-Horn v. Scruggs-McClure, 62 Mo. App. 93. b. The city had no power to devote the street to any use not consistent with its use as a highway, or different from the object of the original dedication. .1 Dillon on Mun. Corps. (4 Ed.), sec. 383; Sugar Co. v. Elevator Co., 82 Mo. 121; Williams v. Road Co., 21 Mo. 582; Glasgow v. St. Louis, 87 Mo. 678; Lockwood v. Railroad, 122 Mo. 86; Knapp v. Railroad, 126 Mo. 26; Sluder v. Transit Co., 189 Mo. 130'; Richmond v. Smith, 148 Ind. 296;' Pettit v. Grand Junction, 119 la. 358; Cowen v. New York, 113 N. Y. 532; Webb v. Demopolis, 95 Ala. 116; Pfau v. Reynolds, 53 111. 212; State v. Murphy, 134 Mo. 548; Savage v. Salem, 23 Ore. 381; 27 Am. and Eng. Ency. Law (2 Ed.), pp. 150, 151; Mcllhinny v. Trenton, 128 Mich. 380; Patfield v. Strauss, 189 N. Y. 208, citing Glaessner v. Brew. Assn., 10.0 M.o. 508. c. Any building erected on a highway is a public nuisance. 1 Dillon on Mun. Corp. (4 Ed.), sec. 383, p. 477; Galloso v. Sikeston, 124 Mo. App. 380; Richmond v. Smith, 148 Ind. 296; Wartman v. Philadelphia, 33 Pa. St. 202; Harrisburg’s Appeal, 19 Am. and Eng. Cor. Cas., 603; Mayor v. Wilson, 49 Ga. 476; McDonald v. Newark, 42 N. J. Eq. 138; State v. Lava-rack, 34 N. J. L. 201; Smith v. McDonald, 148 111. 51; Barrows v. Sycamore, 150 111. 588; Pettit v. Grand Junction, 119 la. 358; 24 Am. and Eng. Ency. Law (1 Ed.), 47; McIUhinny v. Trenton, 148 Mich. 3801. (3) Those who deal with a municipal corporation are presumed to know what its powers are, and must take knowledge of the limitations thereon. 20 Am. and Eng. Ency. Law (2 Ed.), p. 1142; McGrath v. St. Louis, 215 Mo. 207; Leathers v. Springfield, 65 Mo. 504; Cheeney v. Brookfield, 60 Mo. 54; Campbell v. St. Louis, 71 Mo. 106; McQuiddy v. Braddock, 70 Mo. App. 535; Brick Co. v. Hamilton, 51 Mo. App. 120; Campau v. Detroit, 106 Mich. 414; Electric Co. v. Boston, 163 Mass. 64; Dillon Mun. Corps., sec. 447. (4) Ordinances 399 and 3503 constituted no contract. At best, the plaintiffs’ predecessors were permitted to take possession of the highway under a license revocable at will. Ferrenbach v. Turner, 86 Mo. 416. (5) Parties to a judgment are not bound by it in a subsequent controversy between each other, unless they were adversary parties in the original action. 1 Freeman on Judg. (4 Ed.), sec. 158, p. 289; McMahon v. Geiger, 73 Mo. 149; State Bank v. Bartle, 114 Mo. 276; Carmocly v. ITanick, 85 Mo. App. 666; Springfield v. Plum•mer, 89 Mo. App. 529; O’Rourke v. Railroad, 142 Mo. 353; Van Fleet’s Former Adjudication, sec. 256; Cliand on Res Adjudicata, sec. 77. (6) The Statute of Limitations has no application to this case, (a) On the theory that the market was a public market: In State ex rel. v. Fisse, these plaintiffs alleged that the market was a public market tinder the city’s supervision and that it was the public property-of the city; there could not be any adverse possession on their own theory, (b) On the theory that the maintenance of the market by these stockholders was a private use: An individual cannot acquire a prescriptive right in a highway for any private use. 2 Dillon on Mun. Corps. (4 Ed.), pp. 801, 802; Milling Co. v. Reilly, 133 Mo. 574; Simpson v. Wabash, 145 Mo. 81.
   GRAVES, J.

In the year 1839, by ordinance'duly passed, the city of St. Louis authorized, or attempted to authorize, the erection, management and control of what is and was known as “South Market,” a market place in Fifth street of said city. By the ordinance this market place was to be erected in what was then and is now recognized as a public street of the said city. The market house was to be built by funds voluntarily subscribed by individuals, in shares of not less than twenty-five dollars each. When erected by subscription, as aforesaid, section 1 of the ordinance provided : “Which building, when erected, shall be a public market for the sale of all kinds of marketing and produce which are or may be allowed to be sold In the market regulations of this city, which said market house shall be called and known by the name of the South Market. ’ ’

By section 2, it was provided that the rents should be distributed among the stockholders until they should receive “the full amount by them expended in the erection, superintendence and management of the same, with such sum or sums as they may be required to pay for any necessary repairs thereon, together with an interest of eight per cent per annum on the whole.”

This ordinance provided for three commissioners to. manage and control the said market place, until the election of others, which election was provided for in the ordinance by an election held by the stockholders. These commissioners were by the ordinance made city officers, and the market place was to be run in conformity to the ordinances of the city. Reports were to be made to the city authorities. Section 6 of said ordinance reads:

“That upon the first annual report having been made to the board of aldermen as required by this ordinance, the city authorities, should they deem it expedient, may then or at any time thereafter, cause to be refunded to the commissioners whatever amount may be justly due to the stockholders of said market house, according to the provisions and meaning of this ordinance ;
“Or, whenever the stockholders shall be fully refunded by the rents and profits of said market as provided by this ordinance, said commissioners shall relinquish, and the mayor and board of aldermen shall resume, for and in behalf of the city, the possession, ownership and government of said market house, for the benefit of the citizens.”

Later, in 1856 another ordinance was passed confirmatory of the one just described, and granting further privileges. In other words, more street space was granted, carrying with it additional privileges to the market place.

Under these ordinances money was subscribed and a market house was erected, thirty-six feet in width and 375 feet in length, containing about forty stalls or places of business. Upon either side of this house was about thirty feet of the street. In other words, the public highway at this point was nearly one hundred feet in width, and the market place occupied thirty-six feet, practically in the middle thereof.

The present suit is one in equity, in which the present commissioners of said South Market seek to enjoin the city and its executive officer, the city marshal, from removing the house built as aforesaid. The ordinances above are pleaded, and the fact of the subscription to a fund for the purpose of building the market place is pleaded, and in addition it is charged that there are 331 shares of stock outstanding, upon which there is yet due twelve dollars per share, and an indebtedness of more than $4000 against said market place, contracted by the commissioners. Taking it altogether it would require some $8000 to liquidate the stock and debt of the concern. The defendants by their answer plead that there was no power in the city to pass the two ordinances aforesaid, as well as other defenses. The reply raises, among other issues, a plea of res adjudicata. We shall not at this point go into detail as to all the matters raised by answer or reply, but leave such matters to be noted as far as may be required in the course of the opinion.

From the evidence it appears that the market place has not done much business in recent years. At or about the date of trial, only two or three stalls were used for market purposes, and for some time prior thereto the greater portion of the building was being used for mere storage purposes. It also appears that the property was becoming more involved in debt as the years pass. Such is evident from the last reports made. This sufficiently outlines the case for a discussion of the questions of law raised.

I. The questions in this case can be reduced to a minimum, notwithstanding the numerous pleas in the answer and reply. In the first place the validity of these two ordinances must be passed upon and determined. The question is, can a city, possessed with the power of controlling the. streets, and also clothed with the power of establishing, controlling and regulating market places, exercise such powers to the extent of appropriating a large portion of a street for a brick building, to be used for a market place? An answer to this query eliminates one question in this case. Those dealing with a municipal corporation of limited powers, must deal with a knowledge of such limitations. Municipal corporations are but public agencies with limited rights and powers, and as such must be so recognized by all parties dealing therewith. If such corporation go beyond its delegated powers, its acts are void. If it pass ordinances which go beyond such delegated powers, the ordinances are void and bind no one. The city, being a public agency, can and should plead that its acts were ultra vires and void, and bind no' one. This, because the real party is the general public and not the officials who have been derelict in duty when the unlawful act was committed. By the two ordinances pleaded plaintiffs claim what rights, if any, they have. The pleadings cannot be read without the conclusion being reached that whatever rights plaintiffs claim, come from the two ordinances described in extenso in the statement. In the briefs, it is true, there is some suggestion of an adverse holding, and to this Ave will come later.

But to the proposition as to the right of the city to pass the two ordinances in question. If the city had such power there is an end to this controversy. It appears that other market places were established about this time and they too were placed in the public streets. This, however, does not change the legal status of all such ordinances and of all such acts. Such could only be considered as tending to show the city’s construction of its own powers, and not further. To dur mind the ordinances in question, as well as all similar ordinances, are void for the reason that they exceed the lawful powers of a municipal corporation, such as we have involved here. Where land has been dedicated as a street and thereby dedicated to public use, the same cannot be diverted from that use in the manner indicated in these ordinances. Licenses may be granted to street railways, which, for a public purpose, will subject the use of the street to additional burdens, but the street itself and no portion thereof is absolutely withdrawn from use by the general public. Under such grants it has been subjected to an additional use. Not so with reference to the two ordinances in question. These ordinances absolutely withdraw. from public use a material portion of a public highway. They do not merely encumber such highway with an additional public use, but absolutely withdraw the same from public use. This we say advisedly; for it is argued that the use to which the street was subjected under these ordinances is a public use. In a sense that is true. The market accommodated that portion of the population adjacent thereto, but not the general public. Public streets are for the general public and not for local interests. Licenses to railway corporations are tolerated on the theory that their limited use of the public thoroughfare is for the general public, but even such licenses cannot be tolerated when they operate in such a manner as to preclude the use of the streets in the usual and ordinary manner by the general public. [State ex rel. v. Railroad, 206 Mo. 251, and cases cited therein.]

Power to establish and control market places does not mean power to usurp the rights of the public in and to public streets. The case law seems to be firmly set this way. Dillon, with á citation of the case law (1 Dillon’s Municipal Corporations [4 Ed.], sec. 383), says: “But power to a municipal corporation to establish markets and build market houses will not give the authority to build them on a public street. Such erections are nuisances though made by the corporation, because the street and the entire street, is for the use of the whole people. They are nuisances when built upon the streets, although sufficient space be left for the passage of vehicles and persons. Such erections may, it seems, be legalized by an express act of the Legislature. But unless so legalized, a nuisance erected and maintained by a public corporation may be proceeded against, criminally or otherwise, the same as erected by private persons.”

In an early case, the Georgia court thus spoke, Mayor, etc., v. "Wilson et al., 49 Ga. l. c. 478: “It is insisted that the market house was only erected temporarily in that street whilst the defendant was pulling down the old and erecting a new permanent market house on the site appropriated for that permanent building. The reply is, that the organic law forbids the defendant from granting away the streets of the city, for any purpose whatsoever, without an act of the General Assembly. It is a question of power in the defendant as a municipal corporation. It has no more power under its organic law to grant away the use of the streets of the city for the erection of a temporary market house, or for any other purpose, than it would have to grant away the use of the streets permanently. It had no power to grant away the use of the street ‘for any purpose whatsoever, so as to deprive the inhabitants of its common use.”

To a like effect is an early Pennsylvania case, Wartman et al. v. Philadelphia, 33 Pa. St. l. c. 210: “But the general right to build market houses and to shift them from place to place, as occasion' may require, does not imply a right to build them on the public highway. High street is a public highway, made so by the words of the Penn charter. The market houses built in the middle of it were a nuisance previous to the Act of 1804. Those who maintained them might have been indicted, and any citizen could have abated them. It required the supreme legislative authority of the State to take away from them tlieir criminal character. The members of the common council were mistaken when they voted, in 1773, that they were satisfied of their right to obstruct the middle of the street, if they left a proper space on each side for the passage of carriages. They could no more obstruct it partially, than close it altogether, and a nuisance erected and maintained by a public corporation in a highway dedicated to the use of the whole people, is as liable to legal punishment, as the same acts done by private parties.”

In a market place case, the Indiana court, City of Richmond et al. v. Smith, 148 Ind. l. c. 296, thus expresses itself: “No good reason can be given to show that the judgment should not be affirmed. The streets are primarily for the use of the traveling public. Certain other uses in which the public and the abutting property-owners are interested are also allowed, but only in such manner and to such extent as may not appreciably impede the use for public travel. Such uses are those for sewers, gas and water pipes, also telegraph and telephone lines. Provision, too, is made for shade trees along the curb and between the roadway and the sidewalks. No right, however, as we think, could be exercised by a city for such an occupancy of a public street as that which was here attempted.”

The New Jersey court had to pass upon a case wherein the citizens sought to enjoin the use of a public street as a market place. [McDonald v. Newark, 42 N. J. Eq. 1. c. 138.] That court therein said: “In the case in hand, the use of the streets for a market place is, under the. circumstances, a public nuisance. Such use of the highway is wholly unwarranted. The entire street is for the use of the public at large, and the unauthorized use of part of it for a market is a public nuisance. [State v. Laverack, 5 Vt. 201.] Nor does the grant by the officers of the city, of permission so to use the street, legalize such use. The use is not only a public nuisance, but it is, so far as the complainant and others similarly affected are concerned, a private nuisance also.”

Many eases could be cited, but they all follow the trend of the original cases, and all are in harmony with the cases from this State, reviewed in State ex rel. v. Wabash Railroad, supra. A municipal corporation has no right to obstruct a public highway, by ordinance or otherwise, in the manner in which this highway is obstructed. What the city cannot do, it cannot by ordinance authorize individuals to do. The .ordinances in this case upon which plaintiffs rely are void. They exceed the granted power of the city. Being ultra vires and void the city can urge its incapacity to grant the rights claimed by the plaintiffs unless for other reasons presently to be noted; in such course the city has been estopped. Summarizing the point now under discussion, the city exceeded its powers in attempting by these ordinances to grant to plaintiffs the privileges now claimed by them.

II. Whilst it appears that plaintiffs claim all their rights by and through the city, yet they say that by reason of the attitude of the city in a former suit the validity of these ordinances has been adjudicated and cannot now be questioned. It appears that some years prior to this action the circuit attorney of the city of St. Louis instituted an action in the circuit court of that city, the general purpose of which was to have the ordinance described in our statement declared void for want of power in the city to pass the same, and to have the market place in question declared a purpresture and nuisance. A great number of persons were made parties defendant to this action, including the three commissioners of the said market place, as well as the city of St. Louis. Other defendants filed an elaborate answer, but the city contented itself with a general denial. By the judgment, the plaintiffs ’ bill was dismissed. By reason of this judgment, it is claimed that the city is estopped from now denying the validity of these ordinances. Plaintiffs say that the matter is res adjudicata. Defendant, the city of St. Louis, says that in such suit it was not an adversary party to the plaintiffs or their privies, and therefore there can be no res 'adjudicata. In this contention, we think the city is right. The most that was then done by the city was to deny the invalidity of its ordinances. In so doing it joined to that extent the answer of the other defendants in the case. It was not an adversary party to the present plaintiffs in that proceeding. As said by Freeman on Judgments (4 Ed.) vol. 1, sec. 158: “Parties to a judgment are not bound by it, in a subsequent controversy between each other, unless they were adversary parties in the original action.” This doctrine was quoted with approval by this court in McMahan v. Geiger, 73 Mo. l. c. 149. Following the same thought is Yan Fleet’s Former Adjudication, vol. 1, sec. 256, 'whereat the writer says: “Unless the defendants contest an issue with each other, either upon the pleadings between them and the plaintiffs, or upon crossrpleadings between themselves, it will not be res judicata in a litigation between them. Of course, a judgment determining the rights of the defendants between themselves, under proper pleadings, is conclusive upon them. But a judgment against them, if there are no issues between them, does not bind them as against each other.”

In the case herein pleaded in bar there are no issues made or joined between the city and the plaintiffs in this case. They were upon the same side of the suit. In Chand upon the law of Res Judicata, sec. 77, it has been well said: “It is a general principle, however, that a decision in a suit does not operate as res judicata against all the parties to the suit, but only against those between whom the matter adjudicated upon was in issue. . . . It is on the same principle, that parties to a suit are held not to he hound by a decision in it, in a subsequent suit between them, unless they were at arms ’ length and on opposite sides in the former suit; and a decision in favor of a person is held to be not res judicata against other persons ranged on the same side with him in the former suit. An issue in fact is, as a general rule, open to determination although a finding thereon has been arrived at between the parties in a former suit in which they both were defendants. This is on the broad ground that a judgment in a suit for or against two or more persons ordinarily determines nothing as to their respective rights and liabilities as against each other.”

Considering the authorities there is no res adjudicata in this case. With this question eliminated, there is not much left in view of what we hold as to the force and effect of the two ordinances involved. Something is said as to the Statute of Limitations, but this does not, and cannot apply, for the reason that the plaintiffs throughout recognize that the building in question is one within a dedicated street. Plaintiffs claim under and through the city by reason of these ordinances and not otherwise. They have never asserted an independent right of possession and do not in the pleadings assert it now. From first to last their claim has been one under the grant made by these two ordinances. If the ordinances are void, as we think they are, and if the plea of res adjudicata is unavailing, the plaintiffs have no rights. The plea of res adjudicata is unavailing. With these questions passed upon, it is not necessary to go further. The judgment of the trial court which dismissed plaintiffs’ bill should be and is affirmed.

All concur.


author: LAMM, P. J.-

text:
    WALTER B. OWENS v. J. A. MATHEWS et al., Appellants.
    Division One,
    March 1, 1910.
    1. TRANSCRIPT: Commingling Matters of Record and Exception. Where the cause is brought up on a full printed transcript in which record entries and record proper are commingled with matters of exception in an undistinguishable mass, neither the evidence, motion for new trial, nor motion in arrest can be considered.
    2. MOTIONS. Exceptions to an overruling of the motions for a new trial and in arrest should appear in the bill of exceptions, and not as a part of the record proper.
    3. APPEAL: Statutory Right. No litigant is entitled at common law to appeal, nor as a matter of natural justice. His right to appeal was created by statute and is limited and controlled by the statute and by the written rules of the appellate court.
    Appeal from Hickory Circuit Court. — Hon. Argus Cox, ■ Judge.
    Affirmed.

      J. C. Hargus, Jno. A. Gilbreath, T. O. Williams and W. A. Dollarhide for appellants.

      Wm. L. Pitts for respondent.
   LAMM, P. J.-

Plaintiff sued to cancel a mining or prospecting lease because of an alleged wrongful alteration and a failure to perform certain essential conditions and covenants upon the part of the ]essees. Second count in ejectment. Judgment for plaintiff on both, and defendants appeal.

The cause is here on a full printed transcript in which record entries and record proper are commingled with matters of exception in an undistinguishable mass. No caption or word tells where the bill of exceptions begins or leaves off. A bill of exceptions was filed bnt what it contains we do not know. We look in vain to see if the exceptions presented are preserved in snch bill. Nor can we consider the evidence because we cannot tell whether it was preserved in a bill,of exceptions; nor the motions in, arrest and for a new trial for like reason. Exceptions appear to have been taken to the overruling of those motions but apparently they were saved by a court entry (precisely where they ought not to appear), and if saved in a bill of exceptions that fact is not made to appear. We might pick and choose, sort out and rearrange the matter presented to us and hazard a guess one way or the other on such vital .matters, were it not that for obvious rules of reason and justice we are precluded from guessing at all. No litigant is entitled to appeal at common law, nor as a matter of natural justice. His right to appeal was created by statute and is limited and controlled by the statute and by the written rules of appellate courts. It is a matter of profound regret that abstracts are often constructed on a plan under judicial ban, and 'we see no remedy except to patiently but firmly enforce our rules as interpreted by our decisions, and the statutes controlling the matter. Peradventure, this course will finally result in records being prepared with an eye to the fact that an appeal is an idle formula and worthless unless attention is paid to the rules governing the preparation of the record. Such is the moral taught by Reno v. FitzJarrell, 163 Mo. 413; State v. Baty, 166 Mo. 561; Clay v. U. W. Pub. Co., 200 Mo. 672 et seq.; Stark v. Zehnder, 204 Mo. 448 et seq.; Gilchrist v. Bryant, 213 Mo. 443; Thompson v. Ruddick, 213 Mo. 561; Harding v. Bedoll, 202 Mo. 629; Groves v. Terry, 219 Mo. 595; Pennowfsky v. Coerver, 205 Mo. 135; Kolokas v. Railroad, 223 Mo. 455; Hayes v. Foos, 223 Mo. 421, and many more cases.

Objection was made to tbe sufficiency of the petition in the motion in arrest; but that motion cannot be considered for the reasons stated. We find no point made in appellants’ brief that the petition does not state a cause of action, and, at first blush, we can see nothing wrong with it. The judgment is responsive. There being no error perceivable in the record proper, the judgment is affirmed.

All concur.


text:
    B. B. REAGAN et al., Appellants, v. COUNTY COURT OF IRON COUNTY; BUFORD et al., Judges; LEWIS, Treasurer; and IRON COUNTY BANK.
    Division One,
    March 1, 1910.
    1. COUNTY DEPOSITARY: Highest Bidder: Discretion of County Court. Under the statute the county court is not bound to accept as the depositary of the county funds the bank which makes the highest bid. The court has a discretionary power in determining to which of the several bidding banks it will award the funds. That discretion is lodged in the court by the proviso of the statute (Sec. 6819, R. S. 1899) which says that “the court shall have the right to reject any and all bids.”
    2. PROVISO IN STATUTE: Purpose. The whole of a statute, including the proviso, must be so construed as to give force and effect to the act as a whole, not overlooking, however, the purpose of the proviso. That purpose is to take back or remove a restriction imposed by so much of the statute as precedes it.
    3. COUNTY DEPOSITARY: Highest Bidder: Bond: Interest: Discretion in County Court. The statute gives the county court, in selecting among banks the one it will designate as the depositary of the county funds, the right to consider bids from all standpoints, and not merely from the standpoint of the highest rate of interest offered or tendered by any particular bank. Nor is that discretion altered or lessened by the fact that the successful bidder must give a satisfactory bond. Though the county • may be protected against ultimate loss by suit thereon, the county court has the right to consider whether or not the funds would at all tipies be subject to check for the use of the county or several school districts, and an action on the bond does not always guarantee that the funds will at all times be on hand with the depositary, subject to be checked out.
    4. -: Discretion of County Court: Abuse. A proper exercise of the discretion of the county court in choosing a depositary of the county funds will not be reviewed by the courts of law.
    5. -: -: -: Reasonable Exercise. Two banks filed bids to become the county depositary. One offered to pay two per cent interest on daily balances, and the other four and three-eighths per cent. The higher bidder had its attorney present when the bids were opened. He insisted that the bids be opened on the day named at high noon, and that was done; he insisted that the award be made at once; the court wanted further time to consider, but in obedience to his insistence the award was made before adjournment for dinner, and to the lowest bidder. The unsuccessful bank had been recently organized; the plaintiffs are mostly persons interested in that bank; its capital stock was $15,000, half paid up; it was running its business in the back of a hardware store; its cashier was unknown to the county court, had recently come from another State, and another business. The other bank had for some years been the county depositary; its officers and their responsibility were known to the court. Held, that if investigation should have been made by the court, the unsuccessful bidder is to blame that none was made, and under the circumstances there is no showing of an improper exercise of the court’s discretion.
    6. -: Awarding Funds: Hour and Adjournment. A bank which has filed a timely bid to become county depositary has a right to insist that the bids be opened at noon on the day fixed, but it has no right to insist that the award be immediately made by the court without a recess or adjournment for consideration or an investigation of the responsibility and surroundings of the bidders.
    Appeal from Iron Circuit Court. — Hon. Joseph J. Williams, Judge.
    Affirmed.

      Geo. D. Reynolds and Geo. V. Reynolds for appellants.
    (1) It was the duty of the county court to designate as the county depositary the hanking corporation or individual banker offering to pay to said county "the largest rate of interest per annum.” Ever since 1889, when it was first made the duty of the county courts to let out the county funds, the law has ordered that they be let to the highest bidder, to the bidder offering the largest premium or "the largest rate of interest per annum.” Laws 1889, p. 81; R. S. 1889, secs. 3212 to 3222; Laws 1891, p. 103; Laws 1895, p. 126; R. S. .1899, secs. 6817 to 6829; Laws 1901, p. 101. (2) This law, in sec. 6819, R..S. 1899, is mandatory, and does not vest discretion. Where a law requires the letting to "the lowest responsible bidder,” or gives the right "to select the bid most advantageous to the State,” or city, or to let the contract "at such price as the board may deem best calculated to secure the object required,” or gives the board a right "to reject any and all proposals as may be deemed best to the interests of the State,” or where the law requires the letting "to the lowest reliable and responsible bidder,” the body authorized to act has discretion; but when the command of the law is that the letting shall be to the "lowest” or to the "highest bidder,’’ without any qualifying words, there is no discretion left to be exercised. This is the effect of our law, provided only, that the highest bidder is, in the judgment of the court, high enough. High, Extraordinary Legal Remedies, sec. 92; Commonwealth ex rel. v. Mitchell, 82 Pa. St. 343; People v. Dorsheimer, 55 How. Pr. 118; State ex rel. v. McGrath, 91 Mo. 386; State ex rel. v. Jones, 155 Mo. 570; Brady v. Mayor, 20 N. Y. 312; Appleby v. Mayor, 15 How Pr. (N. Y.) 423; Dickenson v. Poughkeepsie, 75 N. Y. 65.; People v. Contracting Board, 46 Barb. (N. Y.) 250'; Kelley v. Chicago, 62 111. 279; Boran v. Commissioners, 21 Oh. St. 311; Ross v. Board of Education, 42 Oh. St. 374; Bank v. Stranathan, 43 Kan. 618; Dillon, Mun. Corp., sec. 98; Henry County v. Salmon, 201 Mo. 169'. (3) ,The requirement of section 6819 of this law that the award shall be to the one “offering to pay the highest rate of interest per annum,” is positive. It is a canon of construction of universal recognition that every positive requirement, which, if disregarded, would necessarily defeat the object of the statute, is to be held mandatory, and when the prescribed requisites are for the protection and advantage of the citizen and disregard of them affects the citizen unfavorably or unjustly, they are to be held to be mandatory. Rose v. Trestrail, 62 Mo. App. 358; State ex rel. v. St. Louis, 158 Mo. 510'; Hall v. Schoenecke, 128 Mo. 668; Hope v. Plentge, 140 Mo. 401. (4) If the proviso in section 6819, giving the court the right “to reject any and all bids,” is to be construed as authorizing the county court to reject the bid of the one offering the highest rate of interest and to accept the bid of the one offering to pay a lower or the lowest rate of interest, then it is inconsistent with the body of the law, is in conflict with its spirit, and is repugnant to the whole scheme, as laid down by article 6. If to be so construed, it is void. Endlich on Interp. Stat., sec. 185. But it is, if possible, to be so construed as to be in harmony with the whole law, the intent of which obviously is to secure the largest premium or highest rate of interest for the privilege of holding on deposit the county funds. It is a familiar rule of construction that words in a statute, which, if interpreted literally, destroy or pervert the manifest purpose and object of the statute, are to be disregarded; common sense and good faith are the leading characteristics of all interpretations. St. Louis v. Herthel, 14 Mo. App. 467; Bank v. Haywood, 62 Mo. App, 556; State ex rel. v. Slover, 126 Mo. 652; Ross v. Railroad, 111 Mo. 18; Bank v. Skeen, 101 Mo. 687; State v. Hernán, 70 Mo. 441; State v. Hernán, 70 Mo. 451; Cole v. Skrainka, 105 Mo. 310; Kane v. Railroad, 112 Mo. 39; Connor v. Railroad, 59 Mo. 293. Of necessity the strict letter of the law' must yield to the manifest intent. Riddick v. Governor, 1 Mo. 147; State ex rel. v. Emerson, 39 Mo. 89; Hernán v. McNamará, 77 Mo. App. 10. (5) The county court is to exercise a wise discretion in seeing that the county funds are safe, when let on deposit; that' they are on deposit with a safe depositary. The law itself, by section 6820, provides for this in requiring and specifying the kind of bond to be exacted, and authorizes the county court to withhold the award until a proper bond is given or to withdraw the fund, if, for any reason, the security given falls below what the county court deems safe. This is the expression of the' legislative intent as to how the county funds are to be secured and safeguarded, and it disposes of the contention that the county court, in passing on the bid, at which time it does not have the question of the bond before it, has any right to take into consideration the solvency of the bidder. Boran v. Com., 21 Oh. St. 311. (6) If any discretion was vested in the court, the facts show that it was abused, and the award made, not as a matter of judgment, but arbitrarily and without lawful basis. This amounts to abuse of discretion and is within the corrective control of the courts. State ex rel. v. Board of Public Schools, 134 Mo. 307; St. Louis v. Weitzel, 130 Mo. 600; St. Louis v. Mfg. Co., 139 Mo. 570; People ex rel. v. Gleason, 121 N. Y. 631; Brady v. Mayor, 20 N. Y. 312; McDonald v. Mayor, 68 N. Y. 23; Dickinson v. Poughkeepsie, 75 N. Y. 65.

      C. P. Damron for the county court; Wm. R. Edgar, M. L. Clardy and C. D. Corum for the bank.
    (1) The statute authorized the county court to exercise its reasonable discretionary powers. The county court did exercise reasonable and wise discretion, and under such circumstances the. courts will not interfere by mandamus, injunction, prohibition, or in any other manner. State ex rel. v. Hawkins, 130 Mo. App. 41; State ex rel. v. Gregory, 83 Mo. 137; State ex rel. v. Fort, 180 Mo. 108; High on Extra. Leg. Rem., secs. 24, 92, 94; Mechera on Pub. Officers, sec. 991. (2) Where discretion is vested in a public officer the courts will not direct how it shall be executed nor what conclusion or judgment shall be reached, in the absence of an arbitrary abuse of power. State ex rel. v. Jones, 155 Mo. 576; State ex rel. v. McGrath, 91 Mo. 386; State ex rel. v. Francis, 95 Mo. 44. (3) The fact that the successful bidder must file a bond for the faithful performance of its duty does not deprive the county court of discretionary power, nor preclude it from rejecting any bid. State ex rel. v. Hawkins, supra; Commonwealth v. Smith, 92 Pa. St. 349; People v. Dorsheimer, 55 How. Pr. 118.
   GRAVES, J.

Whilst the pleadings in this case are lengthy, the facts thereof, and the issues therein can be stated in short form. Under the law, Revised Statutes 1899, section 6817, the county court of Iron county advertised for bids from such banks or bankers as might desire to become the county depositary. In response to such notice two banks of the county filed their bids. Each complied with the law in filing such bid. When the bids were opened it was found that the Bank of Ironton had offered to pay four and three-eighths per cent interest on the daily balance of county deposits, and the Iron County Bank had offered to pay two per cent on such daily balances. The latter bank also offered to receive at par items on other banks, and to issue drafts upon other banks free of charge whenever requested by county officials. The bids were opened at the hour designated by law, and owing to the insistence of counsel for the Bank of Ironton, the matter was passed upon by the county court before adjournment for dinner. The statute prescribes that the bids shall be opened at high noon, and they were so opened. It would appear that members of the court desired timé to look into the matter. but counsel for the Bank of Ironton insisted that they should then and there make the award. Following this insistence the award was made, but to the Iron County Bank rather than to the Bank of Ironton. Relators, as taxpaying citizens, many of whom were interested in the defeated bank, brought this action, (which action and the proceedings, nisi, are well set forth in a written opinion filed in the cause by the chancellor, thus:

“The plaintiffs, by their petition in this case, and in their capacity as taxpaying citizens of Iron county, Missouri, ask this court for a mandatory injunction to restrain and enjoin the county treasurer of said county from hereafter depositing the county funds, or district school funds, or capital school funds, or any part thereof, of said county, in the Iron County Bank, under, and by virtue of an order of the county court of said county, designating and selecting that bank, as the depositary of such funds, made on the first day of May, 1905, for the then ensuing two years; to restrain and enjoin the Iron County Bank from receiving or retaining such funds, or any of them; requiring the treasurer to withdraw all of such funds, as may, by virtue of said order of court, have been, by him, deposited in said bank; restraining and enjoining the county court of said county from further recognizing its said order of May 1, 1905, and requiring it to proceed, under the statute, in such cases made and provided, to designate and select some depositary of said funds. The petition, as originally drawn, contained no averment of any abuse of discretion, on the part of the county court, in the making of the order designating and selecting the Iron County Bank as the depositary of said funds, nor did it, in terms, or by implication, charge any partiality or improper motive upon the part of that court. On a demurrer being interposed, and sustained, the plaintiffs amended their peti-. tion, by inserting an allegation to the effect that the action of the county court in making the order designating and selecting the Iron County Bank as the depositary of said funds, was arbitrary, and without any good, sufficient or lawful cause, and in violation of its duty, and of the law. This amounted to no averment of any substantial fact, tending even by necessary implication, to charge any abuse of discretion or any partiality, or corrupt or improper motive, on the part of the county court, in designating and selecting the Iron County Bank as the depositary of the funds, or in rejecting the application and bid of the Bank of Iron-ton.
“At the time of the amendment, counsel for the plaintiffs distinctly stated to the court that the plaintiffs neither charged nor intended to charge that there had been any partiality, or improper motive, on the part of the county court in accepting the bid of the Iron County Bank, and in rejecting the bid of the Bank of Ironton, and informed the court that they relied upon the sole contention that the county court was, as matter of law, bound to accept the bid of the Bank of Ironton, and to reject that of the Iron County Bank, for the reason that the Bank of Ironton offered the highest rate of interest, and that the county court had no discretion in the matter,, and could exercise none.
“Notwithstanding the fact that this court sustained the demurrer to the original petition, on the ground that no abuse of discretion or partiality, or improper motive on the part of the county court, in accepting the bid of the Iron County Bank, and in rejecting that of the Bank of Ironton, was alleged, and notwithstanding the further fact that the amendment made it no better, in that respect, the court proceeded to hear the case, with the intent to order an amendment of the petition to conform it to the facts proved, so that appropriate equitable relief might be granted, if the evidence should warrant it.
“On the trial the evidence wholly failed to disclose any abuse of discretion, partiality, corruption, or improper motive, on the part of the county court, in the acceptance of the hid of Iron County Bank or in the rejection of the hid of the Bank of Ironton.
“Upon the pleadings and evidence in the case this court is of the opinion that the statute — Art. 6, chap. 97, E. S. 1899 — clothes the county courts of the several counties of this State with the power and authority to exercise a proper discretion, in the matter of the acceptance or rejection of bids of banks or bankers for the county moneys; that the authority given by section 6819, Revised Statutes 1899, to reject any and all bids is a plain grant of discretion, authorizing a proper consideration of all bids, with the power to reject any or all, and to accept such bid, as in the judgment of the court may be the best, in view of all the facts within the knowledge of the court.
“The plaintiffs having failed to allege or prove any abuse of such discretion, or any partiality, or corruption, or improper motive on the part of the county court of Iron county, are not entitled to the relief sought by them, and their bill will be dismissed.”

The case was fully tried out upon oral testimony, none of which imputed bad motives to the members of the county court. In fact such theory was openly disclaimed by counsel for relators. Judgment went in accordance with the written opinion above quoted, and relators bring the case here by appeal. Such sufficiently states the case.

I. In this case we are met first with the proposition that there was an imperative duty upon the part of the county court to award the contract to the highest and best bidder for the county funds. In other words, it is claimed that there is no discretion in the county court. The case is one of first impression in this court. That is to say, this particular statute has not been a subject of construction by this court, whatever we may have said as to other statutes. The importance of the question demands thorough consideration and this we have attempted to give. We are not of opinion that there was an imperative duty upon the part of the county court to grant the contract-to the party making the highest bid for the use of the county funds. We are of the opinion that there is a discretionary power in the county court in determining the award to be made in such case. It may be true that a wrongful and unauthorized discretion might be the subject of review, but the point now to be discussed is whether or not, under the statute, there is a discretion at all. The other question we will discuss later in view of the proven facts. The statute, section 6819, as amended in 1901, under which such awards are made, eliminating surplus language, reads:

“It shall be the duty of the county court . . . to select as the depositary of the county funds, district school funds and capital school funds, not otherwise invested according to law, the banking corporation, association or individual banker offering to pay to said county the largest rate of interest per annum for said fund: Provided, that the court shall have the right to reject any and all bids.”

The trouble arises between the terms of the body of the act and the proviso thereto. As to this section 6819 the Act of 1901 made no material change. The verbiage used is a little different from the original section, but in substance it is the same. The proviso is the same in both statutes. As it originally stood the proviso is there for what it is worth, just as it is there now. That the purpose of this proviso is to lodge discretion in the county -court, we have no doubt. The words thereof preclude a different view. Under it the court has the right “to reject any and all bids.” From any standpoint it means discretion. If the law meant that after advertising for bids the county court must accept the highest bid, then such court could not reject all bids. The very fact that the proviso allows the rejection of all bids demonstrates that there was intended to be left a discretion in the county court. But further this proviso allows the county court not only to reject all bids, but goes further and allows it to reject “any and all bids.” Such provision but emphasizes the fact that the Legislature was lodging a discretion with the county court. Grant it that the provision in the body of the act might be construed to mean that there was an imperative duty upon the part of the county court to designate the highest bidder as the county depositary, yet the very purpose of a proviso, under the law, is to modify the broad and general terms of the act to which it is attached. This question we have recently reviewed in the case of Brown v. Patterson, 224 Mo. 639.

A fundamental rule of construction is that the whole act, including the proviso, must be construed so as to give force and effect to the act as a whole, not overlooking, however, the purpose of a proviso. This purpose has well been defined by the New York court, as mentioned in the Brown case, supra, thus: “A proviso in a grant or enactment is something taken back from the power just declared. The grant or enactment is to read, not as if the larger power was ever given, but as if no more was ever given than is contained within the terms or bonds of the proviso.”

The terms of the proviso limit the general terms of the broad act and it can make no difference as to the force and effect of a proviso, whether its purpose is to limit the terms of a statute which grants rights, or whether it limits the powers of a' statute which restricts rights. It is argued in this case that the first provision of this statute restricts the rights of the county court, but granting that to be true, the proviso, which is the later legislative expression, removes some of the restrictions.

Construing this statute as a whole we have no qoubt that discretionary power is lodged in the county court in the matter of selecting a county depositary. Nothing’ in Henry County v. Salmon, 201 Mo. l. c. 169, cited by appellant, is to the contrary. Such was the holding in State ex rel. v. Hawkins, 130 Mo. App. 41, by Bland, P. J., in the St. Louis Court of Appeals, after this case was tried below. Such is the reason of the thing. Whilst it is true that it provides for a bond, and the bond may preclude the county from ultimate loss at the end of a lawsuit, yet it cannot be said that the county court, the agent of the county, should be required to place the public funds in the hands of unknown and irresponsible institutions simply because such institutions offered a higher rate of interest, and tendered a good bond. With the county there is something more than the mere ultimate recovery' of the county and other public funds from the bondsmen. Such funds are needed in the progress of municipal affairs, and this must be held in view by the county court. No better illustration can be cited than Henry County v. Salmon, supra. There, the county, after prolonged litigation, obtained from the sureties on the depositary bond the funds of the county, but how about the county, school and road finances in the mean time ? To our mind the very purpose of this proviso was to give the county court a right to consider the bids from all standpoints and not merely from the standpoint of the highest rate of interest offered or tendered by any particular applicant. Such court should consider not only the rate of interest offered, but also the fact whether or not the funds would at all times be subject to check for the use of the public interests of the county. An action upon a solvent bond does not always meet the conting'ency of the municipality.

We, therefore, hold that under this statute there is a discretion in the county court in the selection of a county depositary.

II. That the proper exercise of discretion will not be reviewed, we take to be unquestioned1 law. Notwithstanding scanty pleadings npon the part of relators the trial court heard evidence as if the case was being tried upon the theory of a failure to exercise proper discretion by the county court in the selection of a county depositary. It is not necessary for us to pass upon some questions urged, for the reason that whatever be our view of the law, it would not change this case. It does appear that this case was tried by relators largely upon.the theory that it was the imperative duty of the county court to award the contract to the highest bidder. The views above expressed preclude this idea. But if we even go to the question of the abuse of discretion upon the part of the county court, for which there may be remedy, yet under the facts, such abuse of discretion is not in this case.

Under the facts the Bank of Ironton had its attorney present when the bids were opened. He insisted, as under the law he had a right to insist, .that the bids be opened on the day named at high noon; he insisted, as under the law he did not have the right to insist, that the award be made at once on the bids; at least two members of the court wanted further time to consider, but in obedience to the insistence of counsel for the unsuccessful bank, they passed upon the question without adjourning for dinner. From the evidence it appears that the Bank of Ironton had only been recently organized; that the relators are largely persons interested in this bank; that its capital stock was but $15,000, with only half thereof paid up; its officers were unknown to the court; it was running its business in the back end of a hardware store; its-cashier was unknown to the county court; his experience in banking was unknown; he came from another state and another business, i. e., the patent medicine business; the other bank had been the county depositary; its officers and their responsibility were known to the county court; for some years the public funds had been deposited there. Under these circumstances counsel for the Bank of Ironton was insisting that the decision for the award be rendered before the court adjourned for dinner. If investigation should, have been made, relators or the Bank of Ironton are responsible for such failure. It is hardly necessary to discuss this question in view of the admissions made by relators as to the good faith of the county court. However, even if the reasonable exercise of discretion be a vital question in the case at bar, we could not say that there had been a breach of such discretion under the facts.

The judgment is, therefore, affirmed.

All concur.