author: GRAVES, J.

text:
    WILLIAM SHELTON v. J. E. FRANKLIN, Appellant.
    In Banc,
    December 21, 1909.
    1. CONSTITUTIONAL LAW: Local: No Objection at Trial. The constitutionality of a special or local law, making Carle-ton’s Abstracts evidence, offered as a link in' the testimony, will not be considered on appeal, unless objection was made to it when the offer was made.
    2. TESTIMONY: No Objection. Assigned error in the admission of entries in Carleton’s Abstracts as links in respondent’s chain of title will not be considered on appeal, unless objection to their admission in evidence was made at the time they were offered, and an exception saved to the ruling of the court.
    3. CHAMPERTY: Costs. A contract of employment, authorizing an attorney to recover all lands of plaintiff he could and agreeing to pay him for his “services one half of the land recovered,” with nothing said or understood as to paying costs, is not champertous, although the attorney testified that, knowing plaintiff to be good for the costs, he made the cost bond.
    4. QUIETING TITLE: Collateral Attack on Deed: Theory at Trial. Where both sides by their pleadings and at the trial treated the petition as a direct attack upon the tax deed, it will not on appeal be considered a collateral proceeding.

      5. -: Commingling Causes: No Demurrer: Waiver. Where there is in the petition and prayer a commingling of things usually stated in a petition under section 650, Revised Statutes 1899, to quiet title, and what may be called matters of allegation usually stated in an equitable action to quiet title or to remove a cloud upon the title, the defect is patent on its face and it is subject to demurrer, and if no demurrer is filed the defect is waived.
    t». -: Attacking Sheriff’s Deed. The sufficiency of the sheriff’s deed in the tax sale may be attacked by a direct proceeding in equity, and where the petition, aided by the answer, may be after judgment held to be sufficient as a bill in equity to have the deed cancelled, the case will be disposed of as a direct proceeding attacking the sheriffs deed.
    7. -: -: Subsequent Grantee: Notice. Notice of the unlawful and wrongful conduct of the sheriff in selling the'lands for taxes should be brought home to a subsequent grantee of the purchaser at the sheriff’s sale.
    8. -: -: Attacking Judgment. A party applying to a court of equity for the cancellation of a sheriff’s deed is not necessarily required to attack the validity of the judgment. He may attack the validity of the sale and deed, although there be a valid judgment.
    9. -: -: Timely: Alleging Notice. But a bill to> have the sale set aside should be filed within a reasonable time after the judgment debtor becomes informed of the wrongful act of the sheriff; and if brought against a subsequent, grantee of the purchaser at the sheriff’s sale it should allege that the said grantee had notice of the alleged wrongful acts •of the sheriff, for without such notice he becomes an innocent purchaser.
    10. -: -: Sale in Mass: Voidable. A sheriff’s deed, selling land for taxes, in mass, when susceptible to division, is not void, but only voidable; nor can the deed itself be held to sufficiently show a sale in solido.

    11. -: -: Necessary Showing. To have a sheriff’s deed set aside on the ground that he sold the land in mass, it is necessary for plaintiff to show, first, a sale in solido; second, that such a sale was an abuse of the discretion lodged in the sheriff; third, consequent damages and injury to the judgment debtor; fourth, a seasonable application for redress; and, fifth, if the suit is against a subsequent grantee of the purchaser at the sheriff’s sale, knowledge and notice on his part of the sheriff’s wrongful acts.

      12. -: -: Separate Sales: United In One Deed: Presumption. Where the statute required that the lands be sold by separate tracts, the presumption is that the sheriff did his duty and so sold them; and this presumption is not overcome by a recital in the deed, that the separate parcels were bid for and sold to one and the same purchaser. Uniting the tracts in the deed does not even raise a presumption that they were not sold separately. Of itself it is no evidence of a sale in mass.
    13. -: -: No Execution: Not Pleaded. Where the pleadings are construed to be a direct attack upon the sheriff’s deed, it will not be decided whether or not there was an execution issued under which levy and sale were made, unless plaintiff pleads an absence of ' execution as a ground of the deed’s invalidity.
    14. -: -: Levy: Date: Surplusage. A recital in the deed of the date upon which the execution was levied is not required by the statute, and is, therefore, surplusage; and being such, a recital showing a sale prior to levy, will not be held to invalidate the deed.
    15. -: Bill In Equity: Examination of Evidence. Where plaintiff’s petition is construed to be a bill in equity to cancel a sheriff’s deed, and not a collateral proceeding, the appellate court will examine the evidence and reach its own conclusions as to what should be the decree.
    Appeal from Pemiscot Circuit Court.- — Hon. Henry G. Riley, Judge.
    REVERSED AND REMANDED (with directions).

      John A. Hope and Martin L. Clardy for appellant; Oliver & Oliver amici curiae.

    (1) Plaintiff failed to show that he ever had any title to the land!. Under the evidence the title is still in the Government. He introduced certain entries in ‘ ‘ Carleton’s Abstract, ’ ’ but these entries do not prove that plaintiff ever had any title, for these reasons: (a) The act authorizing “Carleton’s Abstract” to be received in evidence, approved March 28, 1901, was the only foundation on which the entries were offered. The act being a special and local law, “changing the rules of evidence,” etc., is unconstitutional; hence, the abstract entries proved nothing. Laws 1901, p. 251; sec. 53, art. 4, Constitution 1875. (b) Even if the abstract law had been valid, the entries were not verified as required by it; without this verification they were inadmissible and prove nothing. Laws 1901, p. 251„ (c) But even if the Abstract had been duly verified, and the act under which the entries were offered could be held valid, the entries would still be secondary evidence, and would not prove that the title had ever passed from either the United States or the State because better evidence exists. The fire that destroyed the Pemiscot county records did not, as the learned trial court seems to have believed, destroy the public land records at Jefferson City and Washington. These records show to whom Pemiscot county lands were originally conveyed, and so long as they exist, no entry in “ Carle ton’s Abstracts,” although duly verified and made evidence by statute, can prove a conveyance from either the State or the United States, (d) Again, even if it had been shown that the Government’s title passed to the county, the abstract entry of the patent from the county to George W. Carleton, through whom plaintiff seems to claim, proves nothing, because the entry shows on its face the existence of better evidence, namely, the record of the patent made on October 1,1885, long after the destruction of the records. Stewart v. Lead Belt Co., 200' Mo. 281. (2) If plaintiff ever had any title, it was closed out and vested in William Hunter, defendant’s grantor, by the sheriff’s sale under the judgment for taxes rendered by the Pemiscot Circuit Court against plaintiff for delinquent taxes on the land. The order of publication, and proof of publication, by which the court acquired jurisdiction in that case, were legal and regular. But plaintiff says the deed the sheriff made to Hunter pursuant to the sale under execution issued upon the judgment is void, because the sheriff sold it in one tract of eighty acres, instead of dividing and selling it in two tracts of forty acres each, and the court adjudged the deed void on that ground. This ruling is erroneous for these reasons: (a) There is no evidence in the record showing, or tending to show, that the sheriff did not sell the land in subdivisions. We have nothing hut the deed itself, and it was introduced, not hy plaintiff, but by defendant. The deed does not prove that the sheriff sold the land as one tract. On the contrary, the presumption is that in selling the land the sheriff did his duty, complied with the statute, and having sold it to Hunter in subdivisions, conveyed it all to him hy one deed. Mathias v. O’Neill, 94 Mo. 526; 1 Cooley on Taxation (3 Ed.), p. 447; Stieff v. Hartwell, 35 Fla. 609; Crieman v. Johnson, 23 Colo. 254; Towle v. Holt, 14 Neb. 221. (b) But if the evidence had established that the sheriff did in fact sell the land to Hunter as one tract, that would not render the sale and sheriff’s deed void. The law applicable to this phase of the case is set forth in defendant’s declarations of law numbered 2 and 4; the refusal of these declarations proves that the trial judge ruled in this case that when a sheriff sells land under execution, unless it can he affirmatively shown that he sold it in subdivisions, the sale is not merely voidable, but void, as against not only the purchaser at the sheriff’s sale, hut any subsequent grantee of that purchaser. Having conceded that defendant, in purchasing’ from Mr. Hunter, acted in good faith, the ruling in this case that an execution sale of land without subdivision is void at all times and against any remote grantee is one of the “new things under the sun.” Until this ruling, it seems to have been settled law that failure of the sheriff to subdivide the land was merely an irregularity which might render the sale voidable, but not void, and that the sale would not be set aside, on account of any such irregularity, in a collateral proceeding against one who had purchased in good faith from the grantee in the sheriff’s deed. Morrison v. Tombaugh, 192 Mo. 444; Jones v. Driskell, 94 Mo. 198; Yeamen v. Lepp, 167 Mo. 61. And if plaintiff ever had a.right of action to set aside the sheriff’s deed there- is plenty of authority for holding him barred hy his long silence and delay as set forth in defendant’s answer and declaration 6, and as shown hy the facts and circumstances in the case. 1 Pomeroy, Eq. Jnr. (3 Ed.), secs. 418-19, pp. 695-98; Morrison v. Turnbaugh, 192 Mo. 447; Dexter v. McDonald, 196 Mo. 400; Underwood' v. Du-gan, 139 U. S. 380; Morgan v. Horsky, 178 U. S. 205; Turner v. Burke, 99 S. W. 76; Osceola Land Oo. v. Henderson, 100 S. W. 896. (3) This is not a proceeding in equity. No grounds for equitable relief are stated. It is a suit in which the plaintiff claims “title, estate and interest in real property” by reason of legal rights alone, and it is, therefore, a suit at law, and is brought under section 650, Revised Statutes 1899, by which it is not meant to say that a suit based on equitable rights may not be maintained under that section, but simply that the plaintiff in this case has not averred, proved’ or attempted to prove any fact which entitles him to relief in equity. After alleging that the deed is void, the petition states the reasons: 1. That the sheriff did not divide the land and sell only so much as would be sufficient to satisfy said taxes and costs, but sold the lands in bulk, and that the lands could have been divided into two tracts of forty acres each. 2. That the deed did not state the amount of taxes for the different years for which the same was sold. 3. That the deed is void because it shows on its face that no levy was ever made. Respondent, it is clear, relies in his petition upon what he assumes to be the defects in the deed as shown by the deed itself. If he does not err as to his interpretation of the law, he could recover- in an action of ejectment if he can recover at all. If the deed is void on its face, as he contends, it could not stand in the way of a recovery. In a sense, it is true that both, parties treated this proceeding as one impeaching the deed, but, so far as the respondent is concerned, he relied upon what he called the irregularities of the deed as entitling him to relief. He asserted no equities in his petition, and he offered no evidence to prove any equities.

      C. G. Shepard, Sam J. Corbett and Duncan & Bragg for respondent.
    (1) Appellant for the first time makes the contention in this court that Carleton’s Abstract was not competent evidence and did not prove the facts therein recited, and that as to the evidence in this case the title to the land in question yet remains in the G-ov-erment. There being no objection made to the introduction of the evidence at the trial of this cause, this objection comes too late at this time; and further, it was shown at the trial of this cause that both plaintiff and defendant claimed through the same common source of title. Appellant cannot now deny the source of title through which he claimed at the trial. (2) The learned counsel for appellant seems to misunderstand the contentions of respondent and the finding of the court as to the question of the land not being divided and sold in its smallest legal subdivision. The claim of respondent is that 'such sales will be set aside on timely motion made for that purpose, or by direct proceeding in equity for that purpose, and that this is a direct proceeding in equity attacking the sale of the land for that reason. This' court has frequently held that sheriffs in selling the land under execution should divide the land, when susceptible of division, and sell only so much thereof as was necessary to pay the execution and cost, and has repeatedly held that while such failure on the part of the sheriff did not make the sale void, yet the sale would be ■ set aside on timely motion to that effect or on a direct proceeding in equity for that purpose. Yeamans v. Lepp, 167 Mo. 61; State ex rel. v. Elliott, 114 Mo. App. 562; Corrigan v. Schmidt, 126 Mo. ‘304; Cordon v. Heckman, 96 Mo. 350. The learned counsel for appellant, realizing the force of this contention, seeks to evade the proposition on the theory that the appellant is an innocent purchaser without notice, and on the ground that the suit was not timely brought, and was not brought against the purchaser at the tax sale. Such a procedure would give the cunning and1 the trickster a chance to defraud the honest citizen out of his rights in a manner unknown to equity or to justice. Such is not the law, neither is such common sense. Corrigan v. Schmidt, supra; Black on Tax Titles, sec. 401. (3) Appellant claims there was no evidence to the effect that the land was sold in hulk. The deed itself is evidence of that fact, and shows conclusively that the land was sold in one body to one person for one price. See. 3210, E. S. 1899. This section requires the sheriff’s deed to recite the place and manner of sale. What is meant by “ manner of sale” unless it he’ the way the steps or the mode pursued by the sheriff in making a sale? It has ever been held by this court as well as by the courts of last resort in most of the states that the recitals in a sheriff’s deed were evidence of the manner in which the land was sold; and that if the land was divided and sold in parcels the deed should recite the necessary facts to show such division and the amount each division sold for. State ex rel. v. Eichardson, 21 Mo. 420; Keene v. Barnes, 29 Mo. 384; Smith v. Williams Cooperage Co., 100 Mo. App. 153; Barnes v. Beardman, 3 L. E. A. (Mass.) 786. Defendant in his answer in the trial court admitted that the land was so sold (in hulk), and cannot now question his admissions made on the trial of this cause. 17 Ency. PI. & Pr. 353. We do not dispute the proposition that a purchaser at a tax sale can have several different tracts of land conveyed in the same deed, and the conveyance he valid; bnt it seems to ns that each tract of land should be separately described. The words 1‘ manner of sale” as used in our statute certainly refer to the method of proceeding, that is, the way in which the land was sold. In numerous cases, even where there was no statute requiring the sheriff to divide the land, it has been held that such a sale was such a fraud upon the rights of the owner of the property that he or anyone claiming under him may have the sale declared void. Noser v. Loan & Trust Co., 118 Ga. 181; Starr v. Shepard, 108 N. W. 709; Stark v. Cummings, 56 S. E. 130; Williamson v. White, 28 S. E. (Ga..) 846; Jungk v. Snyder, 78 Pac. 168; Life Insurance Co. v. Smith, 117 Mo. 293. A subsequent purchaser takes with all the notice the records impart, and subject to the knowledge to be gleaned from the records. Martin v. Barber, 140 U. S. 634. Respondent claims that even should it be conceded that the land was divided as the law requires and sold in subdivisions, or should it be conceded that there is no proof to show the manner in which said land was sold, yet the judgment of the learned trial court must be sustained for the reason of the errors and omissions as shown by the sheriff’s deed introduced in this cause, (a) The tax deed is a mere skeleton in form and fails to show the amount of taxes for each year for which it was sold. The intention of the law can be nothing else than that while the collector is allowed to recover judgment in one suit for the taxes due for several years, yet his tax bill must show the amount due for each year and the judgment must recite that fact, and the tax deed must "make the necessary recitals from the judgment. Guf-fey v. O’Riley, 88 Mo. 424; Hopkins v. Scott, 86 Mo. 140. (bj The sheriff’s deed in question fails to show a levy on the land by the sheriff. The sheriff has no jurisdiction over the res until a levy is made, and an attempt on the part of the sheriff to sell the land in question without first making a levy as the law requires was without authority, and a sale thereunder absolutely void. Duncan v. Matney, 29 Mo. 368; Childers v. Schantz, 120 Mo. 305; Western v. Flanagan, 120 Mo. 61; Hopke v. Lindsay, 83 Mo. App. 85; State v. Sargent, 12 Mo. App. 228; Bush v. White, 85 Mo. 339; Ware v. Johnson, 55 Mo. 500. (4) Instructions have no place in equity proceedings.
   GRAVES, J.

This case reached the Court in Banc on an opinion filed in Division One by the writer, which opinion was concurred in by all the judges then present. Motion for rehearing was filed and upon consideration the writer was considerably shaken in the views he had expressed in the divisional opinion and the motion was sustained and the cause sent to the Court in Banc, on account of the grave character of several questions passed upon in the divisional opinion, and to the end- that further light might be gathered from a reargument of the case.

In course of time it was reargued and submitted and after consultation again assigned to the writer for disposition. Since said time, however, several other cases involving similar questions have been argued. The facts necessary to a disposition of the case are brief, although the case is bristling with points. Going to the facts:

The petition up to a certain point is the usual one filed under section 650. By this we do not want to be understood as condemning this form of petition. After alleging that plaintiff is the owner in fee simple of the property, and that defendant claimed some adverse interest, the petition then avers:

“That the defendant claims some title, estate or interest in and to said premises, the nature and character of which claim is unknown to plaintiff, and cannot Tbe described herein; unless it be that defendant claims through a certain sheriff’s deed for taxes, dated the 10th day of September 1897, and recorded in Book A at page 101, of the deed records of Pemiscot county, Missouri.
“Plaintiff further states and avers that said tax deed should be held void and of no effect for the following reasons: Whereas, the law commands the sheriff, when selling lands for taxes, to divide such land and sell only so much thereof, as will be sufficient to satisfy said taxes and costs, the sheriff wholly disregarded his duty in selling said lands, and failed to divide said lands as he was by law commanded, but sold all of the above lands in bulk for the sum of thirty-seven dollars. That the amount of taxes against said lands were only $4.66, and that said lands were susceptible of being subdivided into two divisions of forty acres each, either of which subdivisions would have brought more than said taxes together with the interest and costs of said suit. Plaintiff further states that said lands at date of sale by said sheriff, were reasonably worth the sum of eight hundred dollars, and' had said sheriff complied with the law in making said sale and have sold only one subdivision of said land, there would have been left to plaintiff one-half of said land after the taxes, interest and cost had been paid out of the subdivision so sold.
“That said deed should be held void for the further reason that said deed does not state the amount of taxes for the different years for which the same was sold.
“Plaintiff further states that said deed should be held void for reason that it shows upon its face that no levy was ever made on said lands prior to the date of the pretended sale.
“Plaintiff here and now offers to pay to defendant, J. E. Franklin; by him or his grantors paid for said lands, at said sheriff’s sale, together with whatever taxes they have paid on said lands, with interest thereon since the date of said sale.”

Prayer is in nsnal form to ascertain and determine title, save and except that it asks, for the cancellation of the sheriff’s deed mentioned as aforesaid.

By answer the defendant denies generally the charges of the petition and avers the ownership of the land to he in him. There are also specific answers as to the charges made against this sheriff’s deed, and further allegation as to the good faith of the defendant as the purchaser from William Hunter, the purchaser at the tax sale. The answer further pleads estoppel in that great permanent and valuable improvements had been by him made, with the knowledge of plaintiff. The next substantial portion of the answer charges that this suit is being prosecuted under a champertous contract.

Replication, general denial.

The trial resulted in judgment for plaintiff as to the title to the land and specifically as to the cancellation of the sheriff’s deed aforesaid. Also decreed that defendant was entitled to lien for $53.76 taxes paid. From such judgment, appeal was duly taken, and thereby the troubles are here. The evidence so far as required, will be noted in the consideration of the points made. Thus far, this sufficiently states the case.

I. (a) The first question urged by appellant is the invalidity of a legislative act approved March 28, 1901, which act authorized entries made in “Carleton’s Abstracts” to be used as evidence of title in Pemiscot county. This act is challenged as being violative of that portion of section 53, article 4, Missouri Constitution of 1875, which provides: “The General Assembly shall not pass any local or special law . . . changing the rules of evidence in any judicial proceeding or inquiry before courts,” etc. The act complained of was passed in strict conformity with, the terms of section 54, article 6, of the Constitution, which prescribes the method of enacting local or special laws. It is urged that the Federal Court of the Eastern Division of the Eastern District of Missouri has held said statute violative of the provision above quoted, and that the bar of Southeast Missouri have so recognized this unconstitutionality and that to obviate this unconstitutionality and recognizing this unconstitutionality, the .Legislature passed a general law in 1907 to meet the emergency of this special law. Laws 1907, p. 271.

The plaintiff offered this special law in evidence and it was admitted without objection. The unconstitutionality thereof was not urged in the court below and is raised for the first time here. The question should have been urged when the law was offered, as objections are made- to other classes of evidence. This local law was but- a link of testimony. For this reason the constitutionality of that act is not before us in this record.

(b) A further sufficient answer would be that the abstract of record fails to show that appellant made any objections to the entries from Carleton’s Abstracts being read as evidence of title in the case. Having been read for the purpose of showing title, and no .objections made or exceptions saved at the time, such objection comes too late when made for the first time in this court. The plaintiff, as appears from the abstract of record, offered in evidence this Act of 1901 and no objection was made as to its admission in evidence. But, be this latter as it may, when appellant permitted the respondent in making his case of title to read seven entries from Carleton’s Abstracts showing a perfect chain of title from the Government to respondent, without objection, he is certainly estopped here. Both sides were then proceeding upon the theory that such entries were evidence of title. By this theory they are bound in this Court.

II. Another charge and complaint made by appellant is that the suit is being prosecuted under a cham-pertons contract. There seems to have been some correspondence between respondent and O. E. Bragg concerning this and other lands which he claimed to own in Pemiscot county. Of this correspondence only one letter found its way into the record. This letter reads:

“October 10, 1904. Stamford, Ky. Dear Sir: In reply to your favor of October 7th I authorize you to recover all you can of my lands in Pemiscot county, Mo., and I agree to pay you for the service one-half of the land you recover. Very truly yours, etc. ¥m. Shelton. ’ ’

One other letter was found but being dated after the employment of counsel the claim that it was a privileged communication was interposed and sustained. Prom the evidence it appears that counsel for respondent made the cost bond given at the institution of the suit, and Mr. Bragg, who was called by the appellant as a witness, said that they made the bond for their client, because they knew that he was good for costs. That they had made similar cost bonds for clients in perhaps a hundred other cases. Bragg further testified that there was no correspondence whatever in regard to the costs. This is the evidence upon this question. Under such evidence the trial court could not have held the contract champertous, even if it be said that champerty in a contract not involved in the suit could affect the case. Concede that there was champerty in the contract of the employment of counsel, could such affect the real issues of the case? We leave our own query unanswered, because of what we first stated, i. e., that under the evidence this contract is not champertous.

III. A vital question in this case is the validity of the tax deed. Respondent contends that by his petition there is made out a direct attack upon this tax deed, whilst appellant proceeds, in this court, upon the theory that the attack upon the tax deed is in a collateral proceeding. It will he observed that the petition does charge that this tax deed should be held void, and assigns some three reasons therefor. The answer avers among other things that if the sale was in fact made in bulk, “such sale did not and does not render the same invalid nor entitle plaintiff, to have it set aside, because the said purchase price of $37 was more than said land was worth at the time of said sale. That said land! could not have been subdivided and sold at that time for more than $37 nor for more than the taxes and costs adjudged against it in said tax proceedings. That said land, whether sold in subdivisions or as one tract, was not worth more than the amount of said taxes and costs and could not and would not, have sold for more than said $37. ’ ’

It then appears that both parties introduced evidence upon the question of value. From this and other portions of the answer and from the conduct of the parties upon the trial, it clearly appears that both parties treated this action as one directly attacking the tax deed. Thus in one part of the answer the defendant says: “Answering further, defendant says that he is now, and was at, and long prior to, the beginning of this suit in actual possession of said land, and that if plaintiff has any claim thereto, he has an adequate remedy at law, and has no right to maintain this suit in equity, and defendant again prays judgment.” In another portion it is said: “and further that there is a misjoinder of causes of action in plaintiff’s petition, in that he has intermingled in the same petition and in one count thereof pretended actions to remove a cloud on his alleged title, to set aside said tax sale, and also statutory action to quiet title.”

Having so treated it below, the ease most proceed here upon that theory. It is true that the failure of a petition to state any cause of action at all may be, as has been held, raised for the first time here. It is not contended here that a canse of action of some kind cannot he gathered from this petition, but appellant says that it is under section 650 and is not a direct proceeding’. Respondent contra.

There is in the petition and prayer a commingling of things usually stated in a petition under section 650 and what might be called matters of allegation usually stated in an equitable action to quiet title, or to remove cloud from title.

Defendant did not demur to this petition. Nor by motion was it attacked. The defect was patent upon the face of the petition. In one clause of the answer it urged that there is a commingling of two causes of action in one count of the petition. This should have been raised by demurrer and not by answer. A failure to demur waives the question.

The petition as a bill to remove cloud from title is to say the least exceedingly scant. It does not charge actual collusion and fraud as in Yeaman v. Lepp, 167 Mo. 61, and Gordon v. O’Neil, 96 Mo. 350, but it does charge the unlawful act of the sheriff and consequent injury. The petition as a bill to cancel the deed, whilst probably not sufficient if it had been attacked below, is we think sufficient after judgment in view of the answer which in a way aids the bill.

We shall therefore proceed upon the theory that this is a direct proceeding attacking this sheriff’s deed. There are two lines of cases in this State, one holding as appellant contends, that this deed cannot be attacked in a collateral proceeding, or rather that it might be sufficient in a collateral proceeding. The other line holds that the sale and deed made thereunder are subject to attack and review, either upon a motion, in the original suit, to set aside the sale, or in a direct proceeding to set aside the deed. The authorities cited by appellant are of the former class, those by respondent of the latter class. It is urged that the judgment is good, and this may be granted. Tbe present proceeding does not attack tbe judgment, but only goes to matters and things occurring after tbe judgment.

In the case of Yeaman v. Lepp, 167 Mo. l. c. 72, we said: “Counsel for defendant cite Rector v. Hartt, 8 Mo. 448; Bouldin v. Ewart, 63 Mo. 330 and Lewis v. Whitten, 112 Mo. 318, as authority for tbe claim that tbe provision of the statutes requiring a sheriff to subdivide a tract of land sold under execution based upon a general judgment or upon a special judgment for taxes is only directory, and contend, that the failure of the sheriff to comply with the statute in this regard does not render the sale void, or affect the title of the purchaser. Those cases, and others that might be-cited, do hold that such violation of duty by the sheriff does not render the sale void so that the title conveyed by the sale can be attacked collaterally, but those cases also hold that the sale may be attacked directly either by a proper motion at the proper time in the court that rendered the judgment and while the matter is still within the control of the court, or by a bill in equity, and in this way the sale may be set aside. This is a direct proceeding in equity, and hence is within the rule.”

In a case attacking the sale by motion in the original case, State v. Elliott, 114 Mo. App. 1. c. 566, the Kansas City Court of Appeals through Ellison, J., said: “Moreover, it is apparent from the opinion of Marshall, J., in Yeaman v. Lepp, supra, that, under the circumstances in this case, the sheriff should not have sold the entire twenty acres of land. It was his duty to sell the twenty acres ‘or so much thereof’ as would satisfy the judgment and costs. The case, just cited, arose under the statute of 1889; but, as that and the present statute of 1899 are alike in the respect here considered, what is there said applies to the present statute. Besides, by reference to the judgment and execution, the sheriff was only authorized to sell so much of the land as would satisfy the judgment. The result is that we will reverse the judgment and remand the cause with directions to the trial court to set aside the execution sale.”

The same doctrine is announced in the following cases: Corrigan v. Schmidt, 126 Mo. 304, and Gordon v. O’Neil, 96 Mo. 350.

Defendant Franklin pleads that he purchased for a valuable consideration and bought in good faith with no knowledge of the alleged defects in the tax proceeding, thus aiding a defect in the bill in this regard. He, however, does not take the stand as a witness upon this question. In fact there is no oral evidence on the question. The sheriff’s deed was on record and was a link in the chain of defendant’s title. Plaintiff claims this gave defendant notice of the delinquencies of the sheriff. Even if this be true, a point we discuss later, yet it wouldn’t give notice of any consequent damages to the plaintiff.

It is true the trial court at the request of defendant gave this instruction:

“The court further declares that there is no evidence in this cause of bad faith on the part of defendant and that it will be presumed that defendant’s purchase of and claim to o'wn said land, was and is in good faith.”

Instructions have no place in equity cases, and this court is not bound thereby. This declaration says, however, that there was no evidence of bad faith, but says nothing about what knowledge or notice the defendant may have had of the alleged defects in the tax proceeding. Defendant being a subsequent grantee and not the purchaser at the tax sale, notice of the unlawful and wrongful conduct of the sheriff should have been brought home to him. [Corrigan v. Schmidt, 126 Mo. 304; 2 Freeman on Executions (3 Ed.), p. 1709.]

IY. Whilst we have said that, owing- to the conduct of the parties in the trial; the statement of the defendant in his answer; the failure to attack the petition prior to trial and judgment; the slight aider from the answer, the petition would he held good after judgment, we do not say it would he good as against an attack made at the proper time and proper manner. The parties below treated it as a proper bill for the cancellation of the deed and upon that theory we try it here.

But treating it as a good hill in equity for the cancellation of the deed, how stands the case? I do not understand that the party applying to a court of equity for the cancellation of a deed under execution, necessarily has to attack the validity of the judgment. He can attack the validity of the sale and deed although there may he a valid judgment. This attack of the sale may he hy motion at the term, or hy a hill in equity filed later. This hill in equity, being in the nature of a motion to set aside the sale, should he filed within a reasonable time after the judgment debt- or becomes informed of the wrongful act of the sheriff. If brought against the purchaser at the sale it need not allege notice of the fact that the property was sold in solido because such notice would he presumed, 'but if brought against a subsequent grantee it should allege that the said grantee had notice of the alleged act of the sheriff, for without such notice he becomes an innocent purchaser.

Now in this case it is urged that there is no testimony to the effect that this sale was made in solido and therefore the case should be reversed; This is true unless it can be said that the deed itself shows such fact. In division, following a case from Massachusetts, Barnes v. Boardman, 3 L. R. A. l. c. 787, we held that the deed showed such fact. There was also a Federal case cited, which we did not then, nor do we now, consider in point. From a more thorough examination of authorities we are convinced of our error in the divisional opinion. The part of the petition which charges that the deed should he held void because of the act of the sheriff proceeds upon the theory that the deed is not void hut only voidable, upon proof of extraneous facts, i. e., (1) proof of the wrongful act of the sheriff and (2) proof of consequent damages and injury to the judgment debtor. If the deed for this and other reasons assigned is void on its face, then there is no occasion for equitable relief, because it convicts itself and no title passed thereby, and if clearly void on its face, casts no cloud upon title. It is on the theory that the deed is voidable only that a bill in equity will lie.

It has long been held in this State that the mere fact that there was a sale in sólido does not render the sale nor the deed ipso facto- void. The statute regarding sheriff’s sales of real estate has been practically the same since 1825. The statutes at the time this sale was made and now, reads:

“Sec. 3185. When an execution shall be levied upon real estate, the officer levying the same shall divide such property, if susceptible of division, and sell so much thereof as will be sufficient to satisfy such execution, unless the defendant in the execution shall desire the whole of any tract or lot of land to be sold together, in which ease it shall be sold accordingly.”

Having under consideration the statute of 1825-, Scott, J., in Rector v. Hartt, 8 Mo. l. c. 461, said: “We regard this statute as directory. A violation of its injunctions will not make a sale void, although it may be good cause for setting it aside on proper application. A similar statute in New York has received a similar construction, Groff v. Jones, 6 Wend. 522, an authority entitled to respect, not only from the acknowledged ability of her judges, but' from the fact that her mode of conducting sales of real estate under execution conforms more nearly to ours than most of the states. . . . Let it not be supposed that we entertain. the opinion that a sale cannot be set aside when an officer has been guilty of an abuse of discretion in making it. It would be a stain upon our jurisdiction if such a power did not exist in the courts. All that is intended to be said is, that a sale in mass by a sheriff, of distinct parcels of real estate, is not ipso facto void. None of the authorities cited by counsel maintain such a principle.” And on page 462, the learned judge further says: “We subscribe to the principle to be extracted from these cases, that a sale in mass, by a sheriff, of distinct parcels of real estate, may be set aside on motion, or by a bill in chancery, and they, in our opinion, furnish no foundation for the contrary rule attempted to be set up, that such a sale is ipso facto void, and will be so regarded in a collateral proceeding.” In the same case, it is further said: '“The law has entrusted the officer with a discretion in conducting sales of land, and confides that he will exercise that discretion in a manner most beneficial to all concerned, reserving a power in the courts to control and correct that discretion, when it has been abused, by setting aside his sales.” Again, in Fine v. St. Louis Public Schools, 30 Mo. l. c. 173, this court said: “On the trial the plaintiff read in evidence, among other conveyances, a deed from the sheriff of St. Louis county to Joshua Fine for the tract of which the land in controversy is a part. The defendant objected to the evidence on the ground that the deed was void, the whole tract having been sold in one mass without being divided. The statute relating to the levy and sale of property under execution is directory, and a violation of its injunctions will not make void a sale for such cause, although it may be good ground for setting it aside, on proper application. ’ ’

And in Bouldin v. Ewart, 63 Mo. l. c. 336, we again said: “Objection is further made that the land was sold in mass, and not in parcels, as provided by law. Such a sale, it has been held, is not ipso facto void, hut is subject to he set aside on motion, or by hill in equity, where injury has resulted therefrom to the judgment debtor. [Rector v. Hartt, 8 Mo. 448; Fine v. Public Schools, 30 Mo. 166; Kelly v. Hurt, 61 Mo. 468.] The same rule applies to the inadequacy of the consideration, which is also urged.”

Similar expressions to the ones quoted above are those of Henry, J., in Wellshear v. Kelley, 69 Mo, l. c. 355; Black, J., in Hays v. Perkins, 109 Mo. l. c. 108. Brace, J., in Lewis v. Whitten, 112 Mo. l. c. 328, and Lamm, J., in Morrison v. Turnbaugh, 192 Mo. 1. c. 444.

Prom the cases we take the rule to he (1) that the statute is directory, (2) that by it some discretion is allowed the officer, (3) that an abuse of this discretion may he and should he reviewed by the court either upon motion or direct attack by a hill in equity, (4) that this attack should he made in seasonable time, (5) that the abuse of the sheriff’s discretion by a sale in solido is only an irregularity which may render the deed and sale voidable and not void.

To these conclusions may he added that the attack by hill in equity is good as against a subsequent purchaser with knowledge or notice of the unwarranted violation of the sheriff’s discretion and knowledge or notice of the injury done the execution debtor thereby.

So that under these authorities, the deed in question is not void upon its face for the reason now under discussion, but is only voidable. To make a case the plaintiff would have to show (1) a sale in solido, (2) that such was abuse of the discretion lodged with the sheriff, (3) consequent damage and injury to the judgment debtor, (4) a seasonable application for redress, and (5) if against a subsequent grantee knowledge and notice upon his part of the things mentioned in the preceding paragraph, and reiterated in the first three numbered subjects in this paragraph.

Was there such proof in this record? We are now convinced that there was not. There is no oral proof as to the sale being in solido and' there is a presumption that the officer did his duty in. conducting tlie sale. [Owen v. Baker, 101 Mo. 1. c. 413; State v. David, 131 Mo. l. c. 393; State ex rel. v. Crumb, 157 Mo. l. c. 556 and cases cited therein.] Plaintiff relies upon the recitals of the deed. The recital so far as applicable, thus reads: “I did.expose for sale at public auction, for ready money, the above described real estate, and William Hunter being the highest bidder for the following described real estate, viz.: n. ½ ne.¼ , Sec. 35, Twp. 17, R. 12, the said last, above described tract was stricken off and sold to the said William Hunter for the sum bid therefor by him as above set forth.”

We have gone into the authorities on this question, both those cited and such others as we could ourselves find, and conclude that this recitation in the deed is not sufficient to raise a presumption even that the sale was made in solido. In Cooley on Taxation (3 Ed.), p. 951, it is said: “But where parcels are 'separately sold, there is no objection to their being united in one conveyance if purchased by the same person, and their being so joined raises no presumption that they were not separately sold.” So, too, says Black on Tax Titles, see. 401: “But where parcels are in fact separately sold, there is no objection to their being united in one conveyance, if sold to the same person, and the joinder of two separate tracts of land in the same tax deed will not of itself be sufficient to raise a presumption that they were sold in gross.” To a like effect is 2 Blackwell on Tax Titles, sec." 782, whereat it is said: “The mere fact that a deed comprises several tracts raises no presumption of sale en masse.”

In the case of Bennett v. Darling, 86 N. W. (S. D.) 1. c. 751, the South Dakota court says: “In support of their second assignment of error, appellants contend that respondent’s tax deed offered in evidence is void upon its face ‘for the reason that it shows that all the lands and lots described in the complaint and in said tax deed were sold in gross or in lump for the sum therein specified, and that the same were not sold in separate tracts or parcels.’ Although the appeal is from the judgment alone, and the findings of fact and conclusions of law are not in the abstract, the right to have the foregoing point considered, as an error of law occurring at the trial, is preserved by a proper objection and exception to the introduction of the deed in evidence. A careful examination of such instrument fails to disclose anything to indicate that the different lots therein described were sold together for a gross sum, instead of being sold in separate tracts or parcels, and the deed is not rendered void by the mere fact that the property described in the various certificates was included in such conveyance. In the absence of an authorizing statute, when separate parcels or tracts of land are sold to the same person there is no objection to uniting them in one tax deed, and such joinder raises no presumption that they were sold in gross.”

The Supreme Court of Nebraska, in Towle v. Holt, 15 N. W. l. c. 205, having a similar question to deal with, uses this language: “Objection was made to the deed because two separate and distinct tracts of land not contiguous were taxed and sold together for a sum in gross. It is a sufficient answer to say that it is not sustained by the record. While two separate and distinct tracts were included in the deed, as the statute provides they may be, yet it does not appear that they were sold together. The court, therefore, erred in sustaining this objection.”

The case of Waddingham v. Dickson, 17 Colo. l. c. 229, lends some light upon the question by the following, language: “It is a sufficient answer to the third objection made to this deed, to say there is nothing in onr statute which requires separate deeds for each piece of property sold, where the purchaser of the several tracts is the same person. In the absence of a statute to the contrary the common law rule must prevail. This certainly sanctions the conveyance in the same deed of any number of separate parcels of land.”

We are therefore of the opinion that the deed itself is no evidence of the fact of a sale en masse. This being true there is no evidence in this record that there was an abuse of discretion upon the part of the sheriff, or a violation of this statute by the sheriff. Without this, so far as the point under consideration is concerned, the plaintiff’s case must fail, as it also must fail on account of no proof showing notice to the subsequent grantee, the defendant herein.

Y. (a) It is urged in brief of counsel for the plaintiff that there was no execution issued under which levy and sale were made. The deed recites that a levy and sale were made under an execution of date May 7, 1897, for $4.66 taxes and $29.92 costs, making a total of $34.54. No execution was found in the files. The defendant offered the execution docket, as pertains to the case, which showed an execution of date April 30, 1897, in the total sum of $57.87, on the judgment of date February 16, 1897, being the date of the judgment in this case. This record also shows the delivery of this execution which was returnable to the •September term, 1897, to the sheriff, and that'it was returned satisfied September 11, 1897. The deed in this case “was acknowledged on that day, although it shows the sale to have been made on September 8th. These execution dockets are required to be kept, and called at each term of the court, and it is made the duty of the court to see that such dockets are made out for each term, and that the return of executions are entered therein. [R. S. 1899, secs. 1594 and 1675.] The recital in the sheriff’s deed is, therefore, contradicted by the record of the court. The' prima-facie proof is overcome by positive proof.

But defendant whilst contending that this is a collateral attack and not a direct proceeding, says that this question is outside of the pleadings. That plaintiff only pleaded three grounds, and the absence of an execution was not one. This latter contention is correct. However, we have taken the view that this is a direct attack upon this deed, and in such case, the matter should have been pleaded, as were the other grounds. For this reason ánd without passing upon this question, we hold this contention of plaintiff untenable.

(b) The petition does charge “that said deed should be held void for the reason that it shows upon its face that no levy was ever made on said lands prior to the date of the pretended sale.” This refers to the following language in the deed: “by virtue of which said execution, I, the said sheriff, did, on the-day of--A. D. 19—, levy upon and seize the above described real estate, situated in my said county.”

It will be noticed that the day, month and year are left blank. That for the year is used “19... ’’when the sale was made in 1897. Plaintiff contends that this shows no levy. If such a recital as to levy were required in a sheriff’s deed, this would become a serious question and to our mind a fatal one. A reading of section 3210, shows that no such recital is required in a sheriff’s deed. This section of the statute has remained the same in words since 1835.

Discussing this point in Hunter v. Miller, 36 Mo. l. c. 147, this court said: “And it is still more difficult to see the objections to the deed; it contains all the recitals that the statutes require, and indeed more, for it recites a levy made by the sheriff upon the real estate, which was unnecessary. And herein is perhaps the objection which the court below had’ to the deed, for it is recited in the deed that the sheriff, Bnrch, levied npon the real estate; while the execution shows that the sheriff, Kier, endorsed the levy npon the execution. It is not deemed that the variance would invalidate the deed even had the recital been material, but it surely could not affect it when the recital in the deed was mere surplusage that might be entirely omitted without injury.”

If it is mere surplusage as that case holds then these meaningless blanks are harmless. They can be rejected. This point is therefore ruled against plaintiff.

YI. Having reached the conclusions expressed in the preceding paragraph it is not necessary to discuss the defense of estoppel in pais pleaded by defendant.

We have throughout taken the contention of the plaintiff that his petition was a bill in equity to cancel this deed. Had we taken the contention of defendant as made in this court, that the petition was one under section 650', then we would have a collateral attack upon this deed and the deed is undoubtedly good as against collateral attack.

But as we took plaintiff’s contention, and treated the case as a case in equity, we have the right to examine all the evidence and reach our own conclusions as to what should be the decree entered. Under the evidence no equitable relief can be granted the plaintiff, nor should it have been so granted by the learned chancellor below. We could enter the decree here, but the better practice is to have the conclusion we reach entered by the circuit court. The case is therefore reversed and remanded with directions to the circuit court to enter its judgment and decree dismissing plaintiff’s bill, the same to carry the costs against plaintiff.

All concur.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    CARL GIST v. RACKLIFFE-GIBSON CONSTRUCTION COMPANY, Appellant.
    In Banc,
    December 21, 1909.
    1. PUBLIC IMPROVEMENTS: Ordinances: How Construed. Street improvements are a necessity of modern city life, and all streets and alleys must be eventually graded and paved; and city ordinances providing for them should not be considered from the viewpoint that street contractors are naturally careless and procrastinating, or city councils are prone to draw ordinances so loosely and accommodatingly as to encourage such carelessness or procrastination or as to unnecessarily inconvenience the public. All laws should be assumed to have been passed in a spirit of justice and for the welfare of the community, and courts should not indulge in any sour or frosty presumption in regard to them.
    2. -: Extension of Time: Bad Weather, Etc. An ordinance requiring the public improvement to be completed within - ten months, and excluding from that time all days lost because of bad weather, strikes, fires in the factory making the material, injunction suits, etc., is not violative of the statute (Laws 1903, p. 64, sec. 9) prohibiting an extension of time for a longer period than four months, and not more than two extensions in all, and no extension at all until the contractor shall in writing agree to reduce his contract price by five per cent. [Disapproving Rackliff v. Peters, 136 Mo. App. 168.]
    3. -: -: Upon a Price: Meaning of Statute. The extensions intended to be interdicted by the statute were those of such class and character as in the very reason of things ought not to be granted except on condition and at a price named, to-wit, a reduction of five per cent for such extension from the whole contract price. It was not the intention of the Legislature to take from the city council the power to relieve the contractor for losses of time for which he was in no sense responsible. The charge of five per cent as the price of an extension of time have reference to those extensions, made necessary or convenient by the acts, procurement, omissions, slips, lapses, misadventures, negligences and inadvertences of the contractor and his associates.
    4. -: -: Fixing Time: Meaning of Fix. The statute in requiring that “every ordinance for a public improvement shall fix the time within which such work shall he completed after the contract therefor shall he awarded,” did not use the word “fix” in its sense of inflexibility, but the language means to prescribe or fix the rule by which the time is to he determined, and that implies that the ordinance may excuse the contractor for loss of time due to strikes, injunction suits, bad weather, etc. ■
    5. -: Ordinance: Proviso: Void and Act Valid. Provisions in an ordinance and contract for a public improvement, inserted by way of a proviso, if repugnant or inconsistent with the purview of the act, may be held to be void, and the balance ' upheld as valid and binding. A proviso in a contract, if inconsistent and repugnant to its other' parts, and all the parts are not interdependent, will not be permitted to prevail over the other parts.
    6. -: Notice. The “designating notice,” required to be given for five days, by section 8, Laws 1903, page 64, notifying the abutting property-owners that the street is to be improved in certain particulars and of the time and place where the citizens may meet with the board of public works and make objections and advise with the board, is not insufficient because it does not briefly state the terms of the ordinance as to grade, time and materials. It need not particularize those things. Other provisions of the statute specifically contemplate subsequent steps providing for them will he taken.
    7. -: Due Process. Special assessments for local public •improvements are referable to the taxing power; and publications of notice to the property-owners and opportunity to be heard before the tribunal having the duty of ascertaining the facts and acting in the special assessment procedure, satisfy the constitutional requirement and amount to due process of law as to those matters.
    Appeal from Buchanan Circuit Court. — How. G. A. Mosman, Judge.
    Revebsed aud kemanded (with directions).

      Fulkerson, Graham & Smith for appellant.
    (1) The petition did not state a cause of action, (a) The ordinance “fixes” the time at ten months. This is definite and obeys-the mandate of the statute requiring the ordinance to “fix” the time within which such, work shall he completed, etc. Then follows in the ordinance, a proviso clause extending the time (for the completion of the work) under certain conditions that may happen. Does this proviso nullify the main text? If the proviso is not in harmony with the main text, should not the proviso clause alone he construed as non-effective, and therefore mere surplusage? Why give to it, as the trial court has done, the effect of rendering the whole enactment void? For the validity of appellant’s contract does not rest in any way upon the validity of the proviso clause in the ordinance. Appellant was not compelled to rely upon its provisions. Where a proviso is repugnant to or inconsistent with the purview of the act, the latter must prevail. Penick v. High Shoals Mfg. Co.,'38 S. E. 973; Jackson v. Moye, 33 G-a. 302; 26 Am. and Eng. Ency. Law (2 Ed.), p. 681; Dugan v. Bridge Company, 27 Pa. St. 303; Ex parte Mayor’s Court of Lancaster, 4 Clark 315; Barksdale v. Elam, 30 Miss. 694; St. Louis, J. & C. R. Co. v. Mathers, 71 Ill. '592; Benjamin v. McConnell, 46 Am. Dec. 474; Dugan v. Bridge Co., 67 Am. Dee, 464; Myers v. Davies, 49 Ky. (10 B. Mon.) 394; In re Webb, 34 How. Prac. 247. (b) Even though the court may find the proviso clause void, still that does not make void the entire ordinance. The ordinance itself would still be good. St. Louis v. Turnpike and Perry Co., 14 Mo. App. 216; St. Louis v. Railroad, 89' Mo. 44; Lamar v. Weidman, 57 Mo. App. 507; Rockville v. Merchant, 60 Mo. App. 365; State v. Clark, 54 Mo. App. 36; State ex rel. v. Pond, 93 Mo. 635; State ex rel. v. Field, 119 Mo. 612; Railroad v. Evans Brick Co., 85 Mo. 307; State v. Bockstruck, 136 Mo. 335. (2) The designating notice was sufficient. It is all that is required by the statute.

      K. B. Randolph for respondent.
    (1) It is provided in Laws 1903, page 64, section 9, as follows: “Every ordinance for public improvements of any kind to be let to tbe lowest and best bidder shall fix the time within which such work shall be completed after the contract therefor shall be awarded.” If the language of the contract above quoted is in harmony with, and not inconsistent with the laws we have just quoted, then of course, this contract and the ordinance authorizing it, are both valid1, and the demurrer, so far as that point is concerned, shall have been sustained. This question has been recently passed on by the Kansas City Court of Appeals. Racldiffe v. Peters, 136 Mo. App. 168. In that case it is held that the ordinance containing those provisions and consequently the contract following the provisions of the ordinance, is void in that it wholly fails to meet the requirements of the charter of the city. The positive direction of the charter is that the ordinance providing for the work must “fix” the time, and while there are several definitions of the word “fix,” they are all in harmony; and we find that the word means, to make certain or sure; to permanently settle; to set a limitation upon. San Francisco Woolen Company v. Brick'weddle, 60 Cal. 166; City v. King, 38 App. Div. 610’, 57 N. Y. Supp. 162. (2) The notice published by the board of public works and set forth in the petition, is not in compliance with sec. 8, Laws 1903, p. 63. The section requires that notice shall be published for five days, giving notice of the time and place when and where said board will hear objections to said proposed ordinance: The provision is not as to the proposed work, but as to the proposed ordinance. The terms of the ordinance should be briefly stated and a notice of what work was contemplated is not a notice as to a. proposed ordinance. The property-owners might be interested as to whether or not the paving was to be laid to the established grade, as to whether or not the contractor was to have three months or ten months in which to complete the work, and as to what material was contemplated, whether brick, asphalt, macadam, etc. The property-owners might he satisfied as to some ordinances and not as to others. This section of the charter evidences that the ordinance must he prepared before the notice is published; then why are not the board of public works required by that section to give notice as to the ordinance and ask for objections to the ordinance, instead of simply saying that they intend by ordinance to improve the street by paving? This question all turns upon the proper construction of said section 8. City of Kirksville ex rel. v. Coleman, 103 Mo. App. 215.
   LAMM, J.

Coming here from the circuit court of Buchanan county, this case was advanced for hearing In Banc.

St. Joseph is a city of the second class. In 1903 the General Assembly (Laws of 1903, p. 60) passed an act creating a Board of Public Works in cities of. that class and giving such board great power along the line of supervising, grading, paving and cleaning streets and alleys, etc. Section 8 of the act ordains, among other things, that: “The board, of its own motion, if approved by all of its members, may, and upon presentation of a petition, signed by the majority in front feet of the resident real estate owners, required by law, shall prepare an ordinance for the im-. provements therein contemplated, and submit such ordinance, together with a copy of the petition for such improvements, if there be a petition, together with all objections thereto that may have been filed with the board, and accompanied with such recommendations as it may desire to make to the common council, and' also transmit to the common council, with the proposed ordinance for any improvements full plans and estimates of the costs of the improvements contemplated, provided that before said board shall, on its own motion, or on the petition of others, submit an ordinance for the making of such improvements it shall, by an advertisement in the official paper of the city publish [sic], for five days, notify all persons interested of the time and place, when [sic] and place [sic], when and where the said hoard will hear objections to such proposed ordinance, at which time and place the hoard shall attend and hear and pass upon all objections that may be presented. And if the board shall overrule such objections, then the matter shall be continued for fifteen days, and within that time the owners of a majority of front feet abutting on the part of such highway or public place sought to be improved and owned by residents of said city, shall have the right to select, in writing, any material they may desire to be used in making said improvement, and such selections only shall be embraced in the ordinance which the board may recommend, and no ordinance specifying any material other than that so selected shall have any validity, provided that the material so selected shall be reasonably available. If no such election shall be made by the property-owners, then the board may recommend and the city council pass an ordinance for doing the work with any desired material.”

Section 9 provides, among other things, as follows: “The common council shall not give its consent by ordinance, resolution or otherwise more than twice for any extension of the time for the completion of the work under any contract for street improvement, •nor for a longer period than four months each time, and not then, unless the contractor, together with the securities on his bond, shall first file with the comp.’troller their written requests for such extension, and .consenting for each extension asked for that the contract price for the whole work covered by the contract shall be reduced five per cent, and if such extension is granted, it shall operate as a reduction of the contract price for the whole work in conformity with the consent so given. Every ordinance for public improvements of any kind to be let to the lowest and best bidder shall fix the time within which such work shall he completed, after the contract therefor shall he awarded. Nor shall any extension for the completion of a contract for public improvements he granted after the expiration of the time named in the ordinance authorizing the work, except that where a first extension is made before the expiration of the time for completing the original contract a second extension may he granted before the first extension expires — all upon the terms and conditions in this section provided.”

At a certain time the Board of Public Works of St. Joseph, desiring to improve Twenty-second street, from a designated point at the south, viz., Highway Bridge, to the north line of a street known as Frederick, caused to he published the five-day notice provided by said section 8, such notice having come to be called a “designating notice.” Such designating notice was as follows (matter pertinent to other pending improvements being omitted):

“Office of the Board of Public Works, City of St. Joseph. Public notice is hereby given that all parties interested are required to take notice that the Board of Public Works, of its own motion, approved, by all of its members, will as soon as practicable, after five days from May 21st, 1907 cause to be introduced in the Common Council of said City of St. Joseph, Missouri, ordinances providing: . . . ‘For improving Twenty-second street from the south end of the Highway Bridge, located between Douglas street and Grand avenue, to the north line of Frederick avenue, by preparing the roadway, alleyways and sidewalk space, constructing new curb, reeutting or resetting the old curb, where necessary, laying or relaying of the sidewalks, gutters and crosswalks, where necessary, and paving the roadways and alleyways, excepting between the rails and eighteen inches outside thereof of the St. Joseph Railway, Light, Heat and Power Company’s tracks.’
“And that'the Board will meet at its office in the City Hall, St. Joseph, Mo., Monday, May 27th, 1907, at 10 o’clock' a. m., to hear and determine any objections that may be offered to said motion, 'work and ordinance.”

The proper time having elapsed and dne steps having been taken, an ordinance was prepared by the board and submitted to and passed by the common council of St. Joseph for the improvement of said street. Said ordinance provided, among other things, as follows: ‘ ‘And that the work be completed within ten months after the contract shall be áwarded, provided the days’ work lost in consequence’of injunction or court proceedings, bad weather, work which is being done by other persons over whom the contractor has no control, organized general strikes or burning of any plant where material for the work provided in this ordinance is manufactured, shall be added to the number of days above specified. All in accordance with plans and specifications therefor on file in the office of the Board of Public Works.”

Under that ordinance bids were called for and defendant corporation was the lowest bidder. Following the aceptance of such bid, a contract with apt narrations was duly entered into on the 30th day of July, 1908. One of its clauses carries forward the above ordinance provision relating to adding to the ten months the days lost'by injunctions, bad weather, etc.

Presently defendant corporation began work. Thereupon Mr. Grist, as owner of real estate abutting on the part of Twenty-second street to be improved, brought a suit in equity. His bill, after narrating in detail all steps taken leading up to the ordinance, the contract and the beginning of the work, charges that the ordinance was void and of no effect and that the contract was infirm (quoting) “for the reason that no time is specified in either ordinance or said contract in which the work must he completed as required by the charter of the city of St. Joseph;” and for the further reason (quoting): “That the pretended notice issued by the said Board of Public Works of the city of St. Joseph, commonly called a designating notice, and hereinbefore set forth, is not in conformity with the charter and laws governing cities of the second1 class, and is in violation of section 30 of article 2 of the Constitution of the State of Missouri in this, that it seeks to deprive the plaintiff of his property by assessing thereon special taxbills for the doing of said work without due process of law. ’ ’

The life of his bill was injunctive relief, on the theory that the special taxbills (to be issued under the void ordinance and contract scheme) would cast a cloud upon his title.

Defendant Construction Company demurred generally. The demurrer was overruled, and defendant, refusing to plead over, elected to abide its demurrer. Thereupon a decree went granting the relief prayed, cancelling the contract, finding the supporting ordinance null and void, perpetually enjoining defendant from prosecuting work under either, and for costs. Thereat defendant appealed.

The propositions to be ruled are three.

First, was the designating notice a violation of section'30, article 2, of the Constitution in seeking to deprive plaintiff of his property by assessing thereon taxbills for the doing of said work without due process of1 law?

Second, was the designating notice in conformity with the charter and laws governing cities of the second class?

Third, was the ordinance void because it fixed no time for the completion of the work?

I. The point presented in the third proposition was ruled in Rackliff v. Peters, 136 Mo. App. 168. That learned court ruled that the same ordinance provision here failed to meet tlie requirements of the city charter (section 9, supra), “was a manifest evasion of the positive mandate of that instrument;” and that the ordinance was void as were the taxbills issued thereunder. It was said, arguendo, in that case: “In the ordinance in this case a time was fixed and immediately unfixed, without time for a breach between the doing and undoing, by inserting exceptions, provisos, and contingencies sufficient to cover every wish of a careless and procrastinating contractor. So as to put the matter in such way that no chance would arise for doubt or evasion, the charter itself provided how a time once fixed by an ordinance might be altered. It provided, as is shown by what we have above quoted from it, that if matters afterwards arose which, in the judgment of the council, demanded a change of time, the council would then pass upon the merit of the contingency urged in writing in support of the extension, and act accordingly, exacting for the property-owner the reduction named. These provisions were thus made a part of the charter- in order to protect the property-holders, and to save the public generally that inconvenience which follows public work in the streets.”

It is plain, therefore, that if we follow the doctrine of that case our task is done and the decree should be affirmed. But we all with one accord agree that the case should not he followed. This because:

(a) The law must not be written from the viewpoint that street contractors have a natural bent to be careless and procrastinating; that city councils are prone to draw ordinances so loosely and accommodatingly as to encourage such carelessness and procrastination and unnecessarily inconvenience the public; or that courts of justice must assume, at the outstart of a given investigation, that the abutting property-owner at all times needs judicial protection against natural, preying enemies, to-wit, careless and procrastinating street contractors and accommodating city councils. No principle of law known to us requires' that abutting property-owners, be taken as standing rectus in curia to be viewed with a tender eye, while the others stand as objects of suspicion to be viewed with a cold, a calculating, or averted eye. In court contractor, city council and abutting owner meet upon a level. Neither has any advantage of the other. The law assumes that contractors are honest, prompt and efficient, i. e., do their duty until the contrary appears. City councils may repose in the bosom of the same friendly assumption. So may the owner of abutting property who is paymaster. No doubt there are street improvements wronging the abutting property-owner, and others in which the contractor suffers wrong. It is the business of courts to right those wrongs when shown to exist. It is not their business to assume they are likely to exist or to indulge in any frosty presumption that either party to such controversy has a predilection or predisposition to perpetrate such wrongs.

It is a fundamental proposition that laws, whether state or municipal, are presumed passed in a spirit of justice and for the welfare of the community. It follows they should be so interpreted, if possible, as to further that purpose. Therefore, while laws and ordinances anent the improvement of streets should be subjected to reasonable analysis and construction, yet they should not be subjected to an over-nice analysis or to any unfriendly construction, springing from the notion that the contractor is prone to mischief or that street improvements are evils to be judicially circumvented. This, because it will be found that such view is bound to end in hardship on the abutting owner as well as the general public. We take it as a self-evident truth that the more technical and sour courts become in interpreting street improvement contracts, ordinances and laws, the more danger and moral hazard to the contractor creeps into every such improvement. So (as in insurance) the more the danger and moral hazard, the higher the bid of the contractor for his own self-protection in discounting that danger and moral hazard. Now, the higher his hid, the greater the cost for a given improvement. No one would deny that street improvements are a necessity of modern city life and that all streets and alleys must be eventually graded and paved. In that behalf every citizen of a town must at some time dance and pay the fiddler. Hence, he has an abiding and substantial interest in having ordinances, laws and contracts relating to such improvements construed with the utmost fairness and justice and without such nice particularity and over-refinement as unduly increase the risk of the contractor, drive up his bid and (as surely as night follows day) end in burdening those who have the bills to pay. In other words, those who live in towns are vitally interested in a situation producing the lowest responsible bidding in street improvement and inviting the most efficient competition, therefore courts can do no better service than to aid that happy consummation with every allowable art and reason of the law. If, now, instead of a spirit of friendliness to such improvements, contracts, ordinances and laws (that is, assuming they are legal and just until the contrary appears), courts assume a frosty attitude, searching as with a lighted candle for technicalities, inadvert-ences and minor defects, not of substance, and assigning them an office in overturning an improvement scheme and defeating the collection of taxbills, then the hazards of street contracting are enhanced, competition is stifled and the price bid is swollen to the extent that the extra hazard is met with extra pay.

(b) Section 9, supra, should be construed in the light of the foregoing general observations. It evidently was the legislative intention to prohibit ordinances granting more than two extensions of time for the completion of street work and neither of snch extensions should be for more than four months. The extensions expressly struck at are such as arise after the passage of the street-improvement ordinance and the execution of the contract, and neither the language nor intent of the statute, up to this point, was intended as a limitation of power on the city council in passing the original street-improvement ordinance. However, there is a limitation on such power in a subsequent clause requiring the original ordinance to fix the time within which such work shall be completed after the contract therefor shall be awarded. It becomes vital, then, to ascertain from the language and reason of the statute what sort of extensions were within the contemplation of the lawmaker and what is meant by fixing the time in the original ordinance.

(1) In the first place it is evident (if we are to credit the lawmaker with fairmindedness) that the extensions intended to be interdicted by the statute were of such class and character as in the very reason of things ought not to be granted except on condition and for a price named, to-wit, a reduction of five per cent for each extension from the whole contract price. It looks reasonable that a Legislature would not exact a quid pro quo or raise a charge for a thing which in just and fair dealing should go as of course and gratis, therefore the fact that a price is put on the extension throws some light on what was in the mind of the lawmaker. Let us see, then, what sort of extensions of time for street work should be paid for. Extensions naturally divide themselves into two sorts, viz.: First, those springing from an independent force or cause (akin to vis major) operating to the detriment of the contractor, over which he had no control and for the existence of which he was not to blame; and, second, those made necessary or convenient by the acts, procurement, omissions, slips, lapses, misadventures, negligences or inadvertences of the contractor or his associates in the enterprise. It is plain that an extension of the latter sort conld not of right he claimed without money and without price. It is not so clear, as will presently appear, that an allowance of time for delays-springing from independent causes is the proper subject of a charge. We would naturally expect, therefore, that a statute would provide for a charge in one case and not intend one in another. Is the statute in hand susceptible of the construction suggested?

What justification exists in the realm of good sense for punishing the contractor with a five per cent rebate for allowing him time lost by enumerated controlling independent causes for which causes he was in nowise to blame?

Take a case: A contractor has two months to complete a job. He furnishes material and labor, say, for one month. At this stage he is stopped by the strong arm of the law, viz., an injunction writ on a bill challenging the validity of the contract and its .supporting ordinance. After three weeks the injunction is lifted. He then goes on with his work relying on the proviso in his contract and ordinance. Was it the intention of the Legislature that such a contractor should apply to the city council for an extension and be mulcted in a five per cent rebate, on the hard alternative of otherwise losing all his time, labor and material? If so, what public policy is subserved by such unjust and harsh regulation?

Or take another case: A contractor has three months to grade and pave a street. The city council, as may well happen, concludes to lay water and gas mains while the street is under reconstruction so that the new pavement may not be presently broken and torn up for such purposes. Accordingly it proceeds to Jay such mains or cause them to be laid, during which time work on the paving contract is necessarily suspended'. A month goes by and the paving contractor resumes work. He now finds his time short unless the proviso in the ordinance and contract save him. Are we to understand that the Legislature intended he could have no relief except by getting an extension ordinance and forfeiting five per cent of his contract, price? If so what sound public policy is subserved by that view?

Look at the matter from still another side. Contractors, for private as “well as municipal work, up to the time of the passage of the Act of 1903, now under review, had always been able to protect themselves against loss or damage by reason of a time limit by inserting a proviso in the contract (if between private individuals) that the time lost on the happening of strikes, injunctions, bad weather in which they could not work, etc., should be allowed them. If the contract was for street improvements it was the settled doctrine of this court to permit a flexibility and adjustability in the ordinance and contract of the same sort. [Allen v. Labsap, 188 Mo. 696-7, and cases cited.] The history of street improvements, as gleaned from the records of this and other appellate courts in Missouri, shows that in one form or another somewhere along the line the contractor has been protected on a time limit against the hazard, of being interrupted’ in his work by causes over which he has no control. It is plain as a pike staff that such reasonable flexibility, by shielding the contractor from dangers of that ilk, would tend to lower the costs of street improvements. Now, in construing a law we must consider the condition of things presented to the lawmaker at the time he is called upon to act, and keep in mind the mischief to be avoided and the cure provided. Is it thinkable that the Legislature would deny to a city council the common-sense power to put into its ordinance and contract a provision that the whole contracting world enjoys and which city councils had been wisely using up to that time? If such had been the legislative intent would it not have been plainly so written in the law by express words or by inexorable implication? It was doubtless on the theory that the statute in hand did not intend to take away from city councils a power so essential in obtaining a reasonable contract price in street work that the city council of St. Joseph put into its ordinance and contract the proviso that “the days’ work lost in consequence of injunction or court proceedings, had weather, work which is being done by other persons over whom the contract has no control, organized general strikes,” etc., shall be added to the ten months in which the contract is to be completed. Does it follow that the public are inconvenienced by that arrangement as indicated by Rackliff v. Peters, swpraf We think not, because unless an ordinance and contract are allowed flexibility enough to permit such provision then a hard- and-fast time limit would have to be agreed to of such extreme duration as would cover all possible accidents of that sort and keep the public streets of cities torn up as long as or longer than under the other plan.

(2) Nevertheless, it must be conceded to respondent that the Legislature of the State of Missouri has at present the inalienable right to act unreasonably in passing a law. It is not presumed to act in that way and courts will labor mightily in interpreting statutes to save it from the charge of having done so, but, if worst comes to worst, it may pass an unjust law or one sounding to folly, which courts will enforce because there are no two ways about it, or any way outofit. For in the construction of laws it sometimes happens that the intent of the Legislature is so clearly manifest that courts are relieved from searching out the reason of the law. In such case they must content themselves with the words of the law without inquiry into its reasons. (Ita lex scripta est.) So that the question narrows itself to this: Has the Legislature by the language of the Act of 1903, viz., “every ordinance for public improvement . . . shall fix the time within which such work shall he completed after the contract} therefor shall be awarded,” taken away the sensible municipal power of passing a fair ordinance and making a fair contract, permitting contractors to bid for street work on the theory there shall be counted out of the period prescribed for the completion of the work days lost for causes enumerated in the ordinance in question ?

“Fix,” as defined by lexicographers, is used sometimes to accentuate the idea of firmness, stability, immobility, permanence, without variation—but in laws, documents and conversation it is not always used in that strong way. It may mean (depending somewhat upon the context and sense of the thing) prescribe, allow, designate, arrange, determine, decide.

In Cricket v. State, 18 Ohio St. 9, the following provision of the Constitution was under exposition: “The General Assembly, in cases not provided for in this Constitution, shall fix the term of office and the compensation of all officers.” It was there ruled (p. 21) that: “The duty enjoined by this section in regard to fixing the compensation of officers, does not require the General Assembly to fix the sum or amount which each officer is to receive, but only requires that it shall prescribe or ‘fix’ the rule by which such compensation is to be determined.”

A provision of the Constitution of the State of Mississippi required the compensation of the district attorney to he “ a fixed salary. ’ ’ Another provision allowed the Legislature to regulate by law cases in which deductions should be made from salaries of public officers “for neglect of official duty.” There was a provision in the statutes of that State directing a deduction from the salary of the District Attorney for absence from the circuit court of his district, “arising from whatever cause.” The State Auditor deducted from the salary of Mr. Humphries, District Attorney, $295 for absence from court by reason of sickness. The matter coming before the Supreme Court (Cole v. Humphries, 78 Miss. 163) it was ruled that the constitutional provision permitting the Legislature to regulate the deduction from the salaries of the public officers for the neglect of official duty was not preclusive. It did not interdict the Legislature from passing laws providing for reductions in the salaries of public officers failing for any cause to perform the duties of their office. It was argued that the constitutional term “.fixed salary” forbids reduction for sickness. On that argument it was ruled: “We regard the word 'fixed’ in that section, as having no more significance than to mark the change'from a system of fees and salaries to one for a salary alone.”

In People ex rel. v. Loeffler, 175 Ill. 585, the following provision of the Constitution was under exposition: “An office is a public position, created by the Constitution or law, continuing during the pleasure of the appointing power, or for a fixed time, with a successor elected or appointed.” Under the civil service act of that State it was ai-gued that office may be held during good behavior, or until removal or discharge for cause, and that such tenure is not recognized by the Constitution. In this connection stress was laid upon the above constitutional words “fixed time.” Upon that argument it was ruled: “But the words, 'fixed time,’ as here used, do not necessarily mean a definite period, as for instance one year, two years or three years. On the contrary, they refer to a term of office which is established or settled, as contradistinguished from' a term which depends upon the mere will or pleasure of the appointing power. A man who is appointed to hold his office during good behavior, or until removal or discharge for cause, occupies it for a settled and. established term; and the time for which he occupies it, is in a certain sense a fixed time, because it does not end at the pleasure of the appointing power.”

That the word “fix” may he used in the sense of “allow” has been often ruled. [Hinds v. Marmolejo, 60 Cal. 229; Guild v. Bank, 4 S. D. 566; Wolverton v. Bank, 11 Wash. 94; Polk v. County, 5 Dak. 129.]

White v. Harris, 103 Cal. 528, was an action to foreclose a lien arising from the assessment of a lot for the construction of a sewer. The law provided, among other things, that the superintendent of streets “shall fix the time for the commencement (referring to the work to be performed under the contract), which shall not be more than fifteen days from the date of the contract.” The contract provided as follows: “Work to.be commenced within fifteen days.” It was argued that the contract did not fix the date for the commencement of the work as provided by law. Upon that contention the court ruled: “The word ‘time’ as here used was not intended to mean a particular day to be fixed by the superintendent of streets for the commencement of the work, but that the time fixed by him for that purpose should not he more than fifteen days from the date of the contract.”

The foregoing authorities illustrate that the word “fix” is sometimes used in a broad sense and sometimes in a narrow sense; that there is no charm about the word itself dominating the situation so that it may not he construed to make the statute comport with reason. The phrase ‘ ‘ shall fix the time within which such work shall he completed after,” etc., does not mean to fix the date at which work shall commence nor the date when it shall end. The very bowels of the text, therefore, import flexibility. The contractor under that provision having ten months time might complete his work within one week and that week the last one or the first one. We are of the opinion that the maxim, That is certain which can be made certain, has application and that the statute means no more than the language meant in the Cricket case, supra, to wit, prescribe or fix the rule by which the tune is'to be determined. If then the ordinance had said the work should he completed in ten months of thirty days each, Sundays and legal holidays excluded in computing the time, it would have been sufficiently certain. Instead of saying that, it says that those days shall not he counted as part of the ten months which are lost by injunctions, etc. Are not all the days to be counted out, if any, easily susceptible of being ascertained? We can see no injury resulting to the property-owner from the arrangement and we consider it not obnoxious to the language of the statute when justly construed.in the interest of the integrity of contracts and the public welfare. Those courts, says Lord Iiobart, are to be condemned “that either out of pleasure to shew a subtle wit, will destroy, or out of incuriousness or negligence will not labor to support, the act of the party by the art or act of law. ’ ’ [Pits v. James, Hob. l. c. 125a, 125b; Clanrickard v. Sidney, ibid, 277 b.]

The premises considered, we rule the ordinance in question is not obnoxious to the charter of St. Joseph (section 9, supra, Laws of 1903), and this holding necessarily overrules Rackliff v. Peters, supra.

(c) The matter alleged to be obnoxious in the ordinance and contract is inserted by way of proviso. Where a proviso is repugnant or inconsistent with the purview of the act it is common learning that the latter must prevail. A void part of an ordinance, law or contract (absent elements of fraud in the latter) does not necessarily make the whole void unless made void by the statute itself. It was a famous saying of the same great judg’e just quoted that where a contract is void by statute it is wholly void, “for the statute is like a tyrant; where he comes he makes all void; but the common law is like a nursing- father, makes void only that part where the fault is, and preserves the rest. ’ ’ [Maleverer v. Redshaw, 1 Mod. 35.] If the void part is so interwoven with other provisions as to make them all interdependent or enough of them interdependent to spoil the symmetry and perfection—the one resting on the other or furnishing a motive for the other—then the void provision strikes down the whole, but where the void part stands as an independent clause segregated from the main body and where, if eliminated by judicial construction, a perfect ordinance and contract would remain, as is the case here, the void part might be pruned away as a dead limb and leave the ordinance and contract intact as live and enforceable. [See authorities cited in appellant’s brief in chief.]

In- the case at bar the contractor had asked no extension of time. He was acting within his ten months. He asked nothing on the strength of the proviso. Therefore, if we were to hold the proviso void as obnoxious to the statute, we would still have to hold that the petition stated -no case for equitable interference. But we prefer to let the case on the point in hand, break on what is said in paragraphs a and b.

II. Another proposition discussed in the briefs relates to the ‘ ‘ designating notice. ’ ’ It. is insisted that such notice was insufficient and therefore the whole improvement scheme falls to the ground. It is argued for respondent, and alleged in his bill, that the notice is, first, not in conformity with the charter governing cities of the second1 class, and, second, is in violation of section 30 of article 2 of the Constitution of the State of Missouri as seeking to deprive the plaintiff of .his property by assessing thereon taxbills for the doing of said work without due process of law. Is there substance in either of these contentions'? We think not, because:

(a) The charter scheme for street improvements in cities of the second class (section 8, Laws of 1903, p. 60, supra) contemplates that a street improvement may be initiated in two ways: First, by the board of public works moving unanimously on its own motion; second, upon a petition by tbe resident owners of a majority of front feet abutting on the street. That scheme contemplates that the board of public works may, in the first instance, and shall in the second instance, prepare an ordinance for the improvement contemplated to be submitted to the city council, but before- such ordinance shall be submitted an advertisement must be inserted for five days in the official paper of the city. The charter ordains that such advertisement shall “notify all persons interested of the time and place .... when and where the said board will hear objections to such proposed ordinance, at which time and place the board shall attend and hear and pass upon all objections that may be presented. ’ ’ If the board shall overrule the objections the scheme contemplates that the matter shall be continued for fifteen days. When that time comes the resident owners of the majority of front feet abutting on the street to be improved have the right to select in writing any material desired by them to be used in making the improvement. The scheme further contemplates that only the materials so selected shall be embraced in the ordinance the board may recommend and that no ordinance specifying any other material shall be valid, provided the material selected shall be reasonably available. If, however, the resident abutting property-owners make no selection in writing the board of its own motion may select and recommend the material to be used. The scheme further contemplates that-finally the proposed ordinance and a copy of the petition for the improvement, if any, together with all objections that may have been filed with the board, together with such recommendations as the board may desire to make, together with the full plans and estimates of the cost of the contemplated improvement shall be transmitted to the city council for its action.

Keeping in view the charter scheme thus outlined, it is argued by learned counsel for respondent that the “designating notice” should briefly state the terms of the ordinance as to grade, time and material. But it is self-evident that whatever notice may be necessary under other charter schemes, the notice contemplated by section eight, supra, need not descend to such particularity. This for the very good reason that section eight does not contemplate that the proposed ordinance shall have been already licked into shape when the citizens meet to offer their advisory objections, if any. They have the right to select their own material at the end of another period of fifteen days and that material must be inserted in the ordinance if selected as provided by the charter. The dominating idea, we think, is that notification be given that the street is to be improved in certain particulars and of the time and place when the citizens may meet and advise with the board. The preliminary question is: Shall it be improved at all in curb, grade, pavement? To that end those who pay the bills are notified to come together and make their suggestions and objections after an interchange of views and an- examination of the data at hand in the office of the board of public works. After this hearing the ordinance is shaped up and then it, the estimates, objections and petition, if any, are bundled up and sent to the city council for its consideration, The charter purposely avoids particulars in the notice. The time is regulated by the ordinance and if the notice particularized by suggesting a- time limit, say, one month, and the citizens met to consider that proposition and approved it or did not object to it and then the ordinance allowed ten months, such variance would work a wrong upon the citizen. The notice wisely omits the contemplated time limit. So leaving the grade out of the notice leaves the whole matter to be adjusted by the board after hearing from interested citizens. So, as to material. Why mention materials in the notice when the citizens fifteen days later may select their own?

The charter scheme held in judgment in Kirksville v. Coleman, 103 Mo. App. 215, differed in essentials from the one under consideration. We are asked to overrule that case or to disapprove its reasoning. We shall'do neither because to do so would be obiter. The case is no authority for appellant’s positioh in this case. The designating notice heretofore set forth substantially complied with section eight of the charter scheme.

The point is ruled against respondent.

(b) But it is argued that plaintiff was denied due process of law. Section 30’, article 2, of the Constitution reads: ‘ ‘ That no person shall he deprived of life, liberty or property without due process of law.” Special assessments for local improvements are referable to the taxing po'wer. Publications of notice to the property-owners and opportunity to be heard before the tribunal having the duty of ascertaining the facts and acting in the special assessment procedure satisfy the constitutional requirement and are due process of law as to those matters. [Meier v. St. Louis, 180 Mo. 1. c. 409, and authorities cited. See, also, Springfield v. Weaver, 137 Mo. 650; Naylor v. Harrisonville, 207 Mo. 1. c. 353; St. Joseph v. Truckenmiller, 183 Mo. 1. c. 16; Eyerman v. Blaksley, 78 Mo. 145; Keith v. Bingham, 100 Mo. 300.] The point is ruled against respondent.

The judgment should be reversed and the cause remanded with directions to the .lower court to sustain defendant’s demurrer. It is so ordered.

All concur,

Valliant, G. J., in result.