author: WALKER, C. J.

text:
    THE STATE ex rel. A. E. TAGGART, Clerk of Circuit Court, v. JOSEPH D. PERKINS et al., Judges of Circuit Court.
    In Banc,
    June 19, 1920.
    CONSTITUTIONAL LAW: Applicable to One Coiinty. A proviso to an act declaring “that the provisions of this act shall not apply to any county which now contains or may hereafter contain eighty thousand and less than one hundred and fifty thousand inhabitants, in which circuit court is held in two or more places in- said county,” is a special law, applicable to only one county as certainly as if it had named Jasper County, and is unconstitutional; and being invalid, it affords no excuse for refusal to obey the rest of the act.

      Mandamus.

    Peremptory writ issued.

      George V..Farris- for relator..
    In the ease of State v. Logan, 268 Mo. 169, the Supreme Court held unconstitutional the Act of 1913, Laws 1913, p. 709, relating to the office of recorder of Jasper County, because the same was class legislation. There could not be any difference whatever in the Logan case and the case at bar, as the acts are couched in exactly the same language, and apply alike to the same County, viz., Jasper County and no other. Bridges v. Mining Co., 252 Mo. 5-3; Hays v. Mining Co., 227 Mo. 288; Henderson v. Koenig, 168 Mo. 356; Murnane v. St. Louis, 123 Mo. 479; . State v. Anslinger, 171 Mo. 600; State ex rel., Kinsey v. Messerly, 198 Mo. 351.
   WALKER, C. J.

This is a proceeding by mandamus brought in this court in which it is sought to compel the judges of the Circuit Court of Jasper County to approve or reject the appointment of the deputies of the Clerk of the Circuit Court of said county, to designate their number and fix their compensation and term of employment. The section of the statute the compliance with which is sought herein, is as follows :

“Every clerk of the circuit court shall be entitled to such number of deputies and assistants, to be appointed by such officials, with the approval of the circuit court, as such court shall deem decessary for the prompt and proper discharge of the duties of his office. The circuit court, in its order permitting; the clerk .to appoint a deputy or assistant, shall fix the compensation of such deputy or assistant, and shall designate the period of time • such deputy or assistant may be employed. Every such order shall be entered of record, and a certified copy thereof shall be filed in the office of the county clerk. The» clerk of the circuit court may, at any time, discharge any deputy or assistant, and may regulate the time of his or her employment, and the circuit court may, at any time, modify or rescind its order permitting any appointment to be made, and ..may reduce the compensation theretofore, fixed by it.” [Sec. 2, Laws 1915, p. 379'.]

The respondents in their return challenge the right of relator to the relief sought on the ground that Jasper County is not within the purview of the Act of 1915 on account of the following provision in Section 1 of same: “Provided, that the provisions of this act shall not apply ... to any county which now contains or may hereafter contain eighty thousand inhabitants and less than one hundred and fifty thousand inhabitants, in which circuit court is held in two or more places in said county.”

The relator contends that this proviso, in so far as it classifies Jasper County according to the number of places in which circuit court is held therein, is obnoxious to that portion of Section 53 of Article IY of the State Constitution, which provides in effect that the General Assembly shall not pass any local or special law when a general law can be made applicable.

This constitutional provision has frequently been construed as applied to classifications of this nature, with the result that such provisos as are here under review have been held purely arbitrary and hence violative of the Constitution: The reason for this conclusion being that' a classification, to meet the requirements of the organic law, must, as applied to any subdivision of the State, be based upon natural present or prospective conditions of such subdivision and not to the possibilities of legislative action. A well recognized basis for such classification being the population of the subdivisions involved. This rule of construction, while definitely defining a present class, makes provision, within the range of reasonable probability, for the addition to the class created of other subdivisions of like nature, while a classification based upon legislative action leaves additions thereto wholly dependent upon conjecture.

The same proviso in the identical words as that at bar appears in an act approved March 25, 1913 (Laws 1913, p. 709) and was held by this court, in State v. Logan, 268 Mo. 169, to be invalid.. The legislative acts in which these provisos are found are, it is true, different in purpose, that of 1913 prescribing the salary of certain county officers, not including the clerk of the circuit court, while that of 1915' is intended to regulate the appointment, etc., of the deputies and assistants of the latter officer. The purpose of the proviso in each, however, was the same, to more definitely fix the classification of the counties to which each act was to apply. The reasoning and conclusion in the Logan case, therefore, as to the invalidity of the proviso in the Act'of 1913 applies with equal force to that in the Act of 1915.

State ex inf. Barker v. Southern, 265 Mo. 275, affords another illustration of an arbitrary or artificial classification, in which the court’s ruling may not inappropriately be cited as a precedent in the case at bar. There was involved in the Barker case a construction of Section 10556, Revised Statutes 1909, which relates to the office of county highway engineer in which a classification of counties was attempted. After other limitations not pertinent here, it was provided that a county or counties containing 150 miles of macadamized roads outside of a municipal corporation should be included within the class to which the section was intended to apply. This proviso dealt - exclusively with existing conditions as to its application, except as to the matter of population, as to which it purported to include such counties as might hereafter enter the particular zone of legislation. The proviso at the time of its enactment could not have applied to any other than Jackson County. Its terms negative any other basis for its enactment than an arbitrary prescription of a specific stage of the growth of the population of the county and a present particular kind and extent of road mileage, and a present payment of a certain salary of a county surveyor. These specifications as infallibly pointed out Jackson County (containing therein Kansas City) as if, instead of such circumlocution, the proviso had mentioned that county by name. The court, in the fur then discussion of the question, said, l. c. 289:

“We recognize as a matter of judical knowledge and public history that when enacted this proviso could not have applied to any other county in this State. It cannot be said that it created a future class into which other counties might fall, for an inspection of its language shows that the determining conditions of its application are expressed in words of present import. [State ex rel. v. Herrmann, 75 Mo. l. c. 352.]

“Our conclusion is that the final proviso of the section (in regard to macadamized roads) . . . affords convincing intrinsic evidence of its repugnancy to the provisions of the Constitution limiting the power of the General Assmbly to enact local or special laws, and that it should be expunged in the eye of the law from the section of the statute of which it forms the conclusion. ’ ’

In Bridges v. Holdout Mining Co., 252 Mo. 53, it was attempted, in construing- Section 4053, Revised Statutes 1909, to classify certain counties as a basis for authorizing the taxing of a docket fee upon the filing of a suit in the circuit court of such counties. In construing this section we held, in effect, that while it contains language usually found in general statutes, such, for instance, as the words “in all counties in this State which now constitute or may hereafter. constitute a separate judicial circuit,” this does not save it from the vice which inheres in local or special laws; but the provisions which restrict its operation to counties having no criminal courts brands it as a special law where a general law could have been made applicable.

The same issue as that presented in the Bridges case was ruled upon by this court in Hays v. Mining and Milling Co., 227 Mo. 288, in which we held, in construing an Act of 1901 (Laws 1901, p. 115) involving the same question which arose in the Bridges case, that the act was invalid for the reason stated in the latter case.

In State ex rel. Kinsey v. Messerly, 198 Mo. 351, in construing a statute (See. 3261, R. S. 1899) in which it was attempted to regulate the fees of justices of the peace in certain cities of a certain population wholly within one township and excepting cities operating under special charters, the court held, page 356, that, “notwithstanding the language of the act purports in some respects to be a general law, the numerous exceptions in the proviso of 1899 pared it down until it was impossible for it to have the slightest effect on the fees and compensation of justice of the peace in any other township in the State. Indeed, the disguise is so flimsy that it needs neither argument nor citation of authorities to show that the proviso of 1899 was and is a mere local law applicable and intended to apply to Sedalia Township alone, and hence is in direct conflict with Section 53 of article 4 of the Constitution herein before recited The duties of a justice of the peace in a township containing a city of the specified inhabitants named in the Act of 1899, are identical in every, particular with the duties of a justice of the peace of a township containing a city of like inhabitants operating under a special charter or a city not lying wholly within one township, so that the act might as well have applied to every city of a certain specified population containing a certain number of churches and school houses. We think the circuit court properly held that the proviso of 1899 to Section 3261, Revised Statutes 1899, was unconstitutional as a local and special law regulating the fees of justices of the peace.”

Rulings of like import to the foregoing will be found in the following cases: State v. Anslinger, 171 Mo. 600; Henderson v. Koenig, 168 Mo. 356; Murnane v. City of St. Louis, 123 Mo. 479.

We find that the proviso under review, in harmony with the foregoing rulings, is unconstitutional and of such a nature that it may be exercised by interpretation from the body of the act (Laws 1915, p. 378) without affecting the other portions of same. The result, therefore, of a ruling as to the invalidity of the proviso will be'limited to its own terms. [State ex inf. v. Southern, 265 Mo. l. c. 390 and cases.]

From all of which it follows that our peremptory writ should issue herein, and it so ordered.

All concur. Woodson, J., absent.


source: Caselaw Access Project

author: GOODE, J.

license: Public Domain

text:
    WALTER S. DICKEY v. FERDINAND C. SEESTED, Appellant. WALTER S. DICKEY, Appellant,v. FERDINAND C. SEESTED.
    In Banc,
    June 19, 1920.
    1. CONSTITUTIONAL LAW: Benefit District: Charter Provision. The charter provision for determining the boundaries of an assessment district for the grading of a street directed that where tracts of land to be taxed with the cost of the improvement are divided into lots and blocks, the line of the district shall extend back from the street line to the middle of the block, and where the tracts are not divided into lots or blocks, the line shall extend back 150 feet from the near line of the street. Held, that this method of fixing the boundary line is hot bound to operate so unjustly in practice as to violate the constitutional right of abutting property owners, or so as to work injustice at all, and is not therefore in violation of the Fourteenth Amendment; for if all the. blocks were 300 feet square, the line of the assessment district would extend 150 feet into the block, and the area included in the district would be the same whether or not the land were laid off into lots and blocks, and no one could know without proof whether or not they are so laid off.
    2. BENEFIT DISTRICT: Narrow Block. Where the charter provided that the boundary line of the assessment district shall extend back to the middle of a tract laid off into blocks and lots, the district cannot be made to include the whole of a block only 76 feet wide, but only half of it.
    3. -: -: Former Street. Where the charter provided that the boundary line of the assessment district shall extend back from the street to be paved or graded to the middle of the tract if laid off into blocks and lots, and 150 feet if not laid off into lots and blocks, and the evidence shows that on an original plat of the addition a street near the middle of a block was dedicated to public use, that it had been used by the public and had not been vacated, and the evidence is sufficient to uphold the finding of the trier of the fact that it was still a public street when the ordinance was enacted, it must be held, on appeal, that the boundary line of the district was midway between this street and the street to bé graded, although - a strip only thirty feet wide is thereby included in the district.
    4. SPECIAL TAX BILLS: No Installments. Where the proper board recommended that the grading should be paid for in tax bills to fall due in four equal annual installments, and the ordinance authorizing the grading merely provided that it should be paid for in special tax bills, and did not purport to repeal or modify the original ordinance- which provided for annual installment bills and was as much- authority for the grading as the other, a single tax bill payable on demand for the total amount of the cost, and drawing interest if not paid within thirty days after its date, is invalid.
    5. -: -: Tender: Estoppel. Nor is the defense that the one tax bill for the whole cost is invalid unavailing because the property owner did not make tender of one-fourth the amount thereof at the end of each year; nor in an action at law can estoppel be raised as a defense that the bill is void for being contrary to the ordinance and charter in- the matter of installments, time for suing on it, and rates and periods on interest, merely because he did not offer to pay at the end of each year one-fourth of the amount of the single bill.
    Appeal from Jackson Circuit Court. — Eon. William 0. Thomas, Judge.
    Reversed.

      Piatt <& Marks and Clarence 8. Palmer for plaintiff.
    (1) The court should have rendered judgment for the full amount of the tax bill. The work was extra work not contemplated by the terms of the charter. It was purely incidental and was necessary ■ to produce a properly graded street, and the city had authority to direct the extra work to be' done and to determine the price thereof. Allen v. Rogers, 20- Mo. App., 290; Johnson v. Duer, 115 Mo. 366; Heman v. St. Louis, 213 Mo. 538; State v. Jersey City, 29 N. J. Law, 441; Wood v. Fort Wayne, 119 U. S. 312;. Slusser v. Burlington, 47 Iowa, 300; White v. City of New Orleans, 15 La. Ann. 667. The taxing district for payment of the cost of grading providing for extending the line back from the street graded to the middle of the block where the land is laid off in lots or blocks is reasonable and logical and not subject to any constitutional objection even though, on account of the different distance of streets on opposite sides of the street graded the district is wider on one side than on the other. Granite Co. v. Gast Realty &• Inv. Co., 259 Mo. 153; Paving Co. v. Fleming, 251 Mo. 210; Gilsonite Co. v. St. Louis Fair Assn., 231 Mo. 589; Gast Realty & Inv. Co. v. Granite Co., 240 U. S. 55; Railroad v. Barber Asphalt Paving Co., 197 TJ. S. 430; Construction* Co. v. Withnell, 269 Mo. 546; Withnell v. Ruecking Const. Co., 259 U. S. 63. (2) The taxing district against which special tax bills were issued for grading Main Street is in accordance with the city charter. Under that charter, as construed by the Kansas City Court of Appeals, no other district would have been valid. Crane v. French, 50 Mo. App. 367; Collyer Est. Co. v. Paving Co., 180 Mo. 262; Granite Co. v. Gast Realty & Inv. Co., 259 Mo. 153; Charter, sec. 26, art. 8; Charter, sec. 37, art. 13; Art 9; City of St. Louis v. Provenehere, 92 Mo. 66; Fowler v. St. Joseph, 37 Mo. 228; Cooley on Taxation, p. 401; Christian v. Tausig, 88 Mo. App. 602; Kemper v. King, 11 Mo. App. 116. But even if the court should determine that the small amount of land which should have been included in the taxing district was omitted, defendant is entitled to no relief, because he should have shown the amount by which his special tax bill would be reduced. Sec. 24, art. 8, Charter; Neenan v. Smith, 60 Mo. 292; First Nat. Bank v.„ Nelson, 64 Mo. 418; Neil v. Ridge, 220 Mo. 233; Embree v. Road District, 257 Mo. 593; Embree v. Road District,. 240 U. S. 242. (3) The fact that the tax bills were not issued as installment bills constitutes no defense. The only ordinance passed under the article of the Charter relating to the issue of tax bills had no provision for installments, but if Ordinance 16750 made it the duty to issue installment bills, the bills, as issued were in effect such bills. Defendant has not been injured, If the bill had been issued as an installment bill at the time suit was brought the first installment was in default and the whole bill became due. Therefore defendant’s burden was not increased one cent, and was decreased one per cent per year. Sec. 3, art. 8, Charter; Granite Pav. Co. v. Mc-Manus, 244 Mo. 184; City of St. Louis v. DeNoue, 44 Mo.' 156; Eyerman v. Scollay, 16 Mo. App. 498; Stadtler v. Roth, 59 Mo. 400; Creamer v. Allen, 60 Mo. 292; Rolla v. Schuman, 189 Mo. App. 252; Barber Asphalt Co. v. Hayward, 248 Mo. 280; State ex rel. v. Reynolds, 218 S. W. 337. (4) An error in the amount of the tax bill or in its form will not subject plaintiff to the loss of interest. If the tax bill is issued for too great an amount defendant could have offered to pay the correct amount and then would have been absolved from both interest and costs. Neenán v. Smith, 60 Mo. 292; Neil v. Ridge, 220 Mo. 233. _

      Scarritt, Jones, Seddon S North for defendant.
    (1) The benefit district was determined mechanically and in blind obedience to the technical language of the city charter and without reference to the benefits conferred by the grading, and thereby certain lands outside the district, which were self-evidently benefited by the grading more than certain lands within the district, were omitted from assessment and so escaped taxation, and defendant’s land was excessively and with partiality charged on that account. Defendant’s land was not within 200 feet,, of the graded street and is charged with a ratable part of the grading cost, while the owners of similar lands, and lands in considerable quantities, lying within 50 feet of the graded street wholly escaped-taxation. This is unlawful discrimination. It is the favoring one owner as against another. It is an attempt to distribute with partiality ■the burdens of taxation and the alleged benefits of a public work and so constitutes the taking of defendant’s property without due process of law and denies him the equal protection of the laws contrary to the Fourteenth Amendment to the Federal Constitution as well as our own constitutional guaranty in that respect. Trust Co. v. Blakely, 274 Mo. 52; Realty & Inv. Co. v. Schneider Granite Co., 240 U. S. 55, 60 L. Ed. 525; Granite Co. v. Gast R. & I. Co., 259 Mo. 153, overruled in 240 U. S. 55. (2) Upon the assumption that the benefit district prescribed by the city charter as applied to the physical situation involved here is unlawful, nevertheless, lands in material quantities which were required by the charter to be assessed with the cost of this grading have been omitted from such assessment and so the tax bill imposes an illegal and excessive burden on defendant’s land; the amount of excess while material is problematical and not ascertainable by the court, owing to the charter method of apportioning the tax, which is according to valuations to be fixed by the city assessor, which have not yet been made, and hence the tax bill is void. Charter and Ordinances of Kansas City, 1909, p. 315, art. 8, sec. 3. (a) As to the definition of a block or square: Standard Dictionary; Century Dictionary; Gilsonite Co. v. St. Louis Fair Assn., 231 Mo. 601; Trust Co. v. Blakely, 274 Mo. 58; City of Ottumwa v. Barney, 10 Kan. 270; Oleson v. City of Topeka, 42 Kan. 709, 21 Pac. 219; Bowlus v. City of Iola, 82 Kan. 774,109 Pac. 405; Town of Fruita v. Williams, 33 Col. 157, 80 Pac. 132; State v. Fire & P. Boárd, 43 Col. 225, 96 Pac. 554. (b) As to excessive charge and void bill: Hamilton on Taxation by Spec’l, Assmts., sec. 542; 1 Page & Jones on Taxation by Assmt., secs. 118, 639, 645; In re New York Protestant Eps., 75 N. Y. 342; Spokane Falls v. Brown, 3 Wash. 84, 27 Pac. 1077; Klein v. Nugent Gravel Co., 162 Ind. 509, 70 N. E. 801; City of Chicago v. Baer, 41 111. 306; Independence v. Gates, 110 Mo. 385; Cole v. Skrainka, 105 Mo. 308; City of Nevada v. Eddy, 123 Mo. 557; Kirks-ville v. Coleman, 103 Mo. App. 215; Mister v. City of Kansas, 18 Mo. App. 217; Wills v. Burbank, 182 Mo. App. 68; In re Klock, 51 N, Y. Supp. 897; State ex rel. v. Reynolds, 218 S. W. 337. (3) The tax hill in suit is required to he paid on demand. And if not so paid suit to enforce it must be brought within two years from its date, the date being June 8, 1915. 'While the ordinance providing for this work, No. 16750, of August 7, 1913, required the tax bills “to be paid in four equal installments in the manner and at the times provided in Section 25, Article 8, of the Charter of Kansas City.” The tax bill is not in accordance with ordinance and charter authority and is therefore void. There is no tax bill. The suit fails. Charter 1908, art. 8, sec. 25; Charter 1908, art. 8, sec. 24. Reference is made to the authorities cited under the preceding proposition. (4) The trial court found, the tax bill in suit to be excessive by about twenty per cent of its face value. The tax bill was undoubtedly illegal as being a demand bill instead of a bill payable in installments as the grading ordinance required. The bill as issued is therefore hot a good bill. It is no tax bill, because wholly unauthorized by law. It did not present, as the charter required it should, the correct amount nor the correct time of payment. Neither its issue nor its existence can be regarded in any sense as a demand that the defendant pay a legitimate, definite claim at a lawful time. But notwithstanding this the trial court allowed seven per cent interest on the amount he found the tax bills should have been issued for from the date the bad tax bill was issued. Under these circumstances no recovery should have been had; the plaintiff made no case, or at least, no interest should have been allowed before suit was begun and then only the statutory rate of six per cent. How can it be otherwise when no legal tax bill was issued? R. S. 1909, sec. 7179; Ry. Co. v. Knapp, 160 Mo. 398; Wolff v. Matthews, 98 Mo. 246; Warren v. Real Estate Co., 121 Mo. App. 432; Shinn v. Wooderson, 95 Mo. App. 6; Trimble v. Ry. Co., 180 Mo. 574; Gilsonite Co. v. St. L. Fair Assn., 231 Mo. 603; Boonville v. Stephens,. 238 Mo, 359; Fruin v. O’Malley, 241 Mo. 255. (5) Tbe contract price of excavation was 96% cents per cubic yard. The total price allowed the contractor was $178, 642.27, which was arrived at by allowing 148,135 cubic yards of excavation at the contract price of 96% cents per yard and 17,846 cubic yards of forced slides as $2 per cubic yard; that is $2 per yard for materials actually excavated from private lands wholly outside of the street lines. This excavation was illegal; a charge for it against other lands was unlawful; the mayor and common council, who alone can authorize street grading and they only by ordinance, did by the ordinance and contract in evidence authorize Main Street to be excavated only within the vertical lines of the street. Charter, art. 7, sec. 1; art. 8, sec. 2. .
   GOODE, J.

These two cases are crossrappeals taken by both plaintiff and defendant from a judgment on a special tax bill; the plaintiff, because the judgment was for less than the amount of the tax bill, and the defendant, because he asserts the plaintiff should not have been given judgment for any amount, or, if this is not so, the judgment was for too large an amount.

The tax bill was No. 60, issued under 'Ordinance 18683, approved January 27, 1914, against the south 116 feet of Lot 8 of Thomas M. Jones’s Addition to Kansas City, as evidence of a special tax and assessment for the proportionate share of said lot in the cost of the public improvement provided for in said ordinance, which was for the grading of Main Street in said city, from Twenty-fourth Street to Grand Avenue. The grading work was done under a contract between the city and J. B. and Charles Spitcaufsky, doing business as Spitcaufsky Bros. The tax bill contains these recitals: that the work was completed according to contract by said firm of contractors, • was accepted by the Board of Public Works; the sum mentioned was duly levied, apportioned and charged against said lot; the tax bill was a lien thereon for two years after June 8, 1915, the date of the bill, and it bore no interest if paid within thirty days from its date; otherwise bore interest at seven per cent per annum. The amount of the bill is $1375.79.

Plaintiff instituted the present action as the owner and holder of the bill by assignment from Spitcaufsky Bros. The petition avers the following1; facts; the issuance of the bill to Spitcaufsky Bros, by the Board of Public Works of Kansas City, on June 9, 1915, in part payment of the cost of grading Main Street; on said date the board duly certified to the City Treasurer the apportionment of the cost of. the work; the work was done under the aforesaid ordinance; said Lot 8 is chargeable in favor of plaintiff on account of the cost of grading work in the sum aforesaid, and the defendant owned the lot, or some estate or interest therein.

The tax bill itself is set out in full in the petition, which concludes with .a prayer for a special judgment against defendant for the amount of it, with interest from1 June 8, 1915, at the rate of seven per cent and for the enforcement of the lien of the bill against the lot.

The recommendation and resolution of the Board of Public Works to the Common Council, which the charter required, recommended not only the grading of Main Street, but the opening and widening of it, all as part of one scheme of improvement; and the first ordinance to authorize the work, which was approved August 7, 1913, included the opening and widening of that street; but we are concerned only with the grading; additional authority for which was given by a second ordinance (No. 18683, approved January 27, 1914, as heretofore stated).

The answer opens with a general denial of the averments of the petition, except that of defendant’s ownership or claim of ownership, of the lot. Other defenses are pleaded, the1 averments of which we summarize. First, the Charter of Kansas City, in Section 3 of Article VII, requires the cost of grading a street, such as Main Street, to be apportioned and charged against the several tracts of land within the prescribed district, according to the respective values of the lots, exclusive of any improvements thereon, as fixed by the City Assessor. Said section prescribes the district in which all the tracts assessed for grading a street shall be included, according to several possible contingencies, as follows:

“The cost of all grading, including the grading of sidewalks, shall be charged as a special tax on all lands on both sides of the street, avenue, or public highway, or part thereof, graded, within the following limits, viz.: In case the land fronting on the street, avenue or public highway, or part thereof, graded, be laid off in lots or blocks, property so laid off from the line of the street, avenue or public highway, or part thereof, graded, back to the center line of the block or blocks, shall be so charged, whether fronting on the street, avenue or public highway or not; nevertheless, the Common Council shall have power by ordinance to prescribe that such lands shall not be charged beyond the alleys in such blocks, if deemed just and equitable, and in case any land fronting on such street, avenue or public highway, or part thereof, graded, be not laid off into lots or blocks, then the land not so laid off, and the land in the rear thereof on the line of the street, avenue or public highway, or part thereof, graded, back one hundred and fifty feet, shall be so charged, whether fronting on the street or' not; and land liable for such grading shall be charged according to the value thereof, exclusive of improvements thereon, as herein provided.”- [Charter Kansas City, 1908, Sec. 3, Art. VIII.]

For convenience of reference we have copied the language of the section, instead of the substance of- it, as.set forth in the answer.

The averment is that said method of assessing-for street grading was followed in. .apportioning the cost of grading Main Street and in assessing defendant’s lot; that said method is not based on the benefit conferred on the different assessed tracts by the work, but is arbitrary, technical, unreasonable, confiscatory as to this defendant, and in conflict with the Fourteenth Amendment to the Constitution of the United States, which provides that no state shall deprive any person of property without due process of law, nor deny to any person the equal protection of the law; is contrary to Section 21, Article II, of the Constitution of Missouri, which provides that private property shall not be taken.or damaged for public use without just compensation, and to Section 30, Article II, of the State Constitution, which provides that no person shall be deprived of property without due process of law.

As part of the supposed alleged arbitrary, unjust and “mechanical” determination of what lands should be included in the assessment district, it is further alleged that said district on the west side of Main Street extended back from the street in one place only twenty-seven feet, and in another only twenty-eight feet; that the average depth of the prescribed assessment district, over a distance along the graded street of 281 feet,’is less than thirty-three feet on the west side; while the depth of the district on the east side, where defendant’s land is located, is as much as 270 feet; making the benefit district on the east side from eight to ten times deeper than on the west side, and .taking in for assessment defendant’s lot, which lies more than two hundred feet east of Main Street. It is averred that if the depth on the east side of the street had corresponded with that on the. west side, defendant’s lot would have escaped assessment; whereas, if the district had been extended as far back on the west side as it was on the east, it would have included an area of ground which, on being assessed its part of the cost of the improvements, would have relieved the defendant’s lot of one-half the burden now imposed on it.

In the same connection it was.alleged that the sum of $61,086.15 was assessed against lands lying oh the east side of Main Street, which would have fallen outside the taxed area, if the district had extended no further to the east than to the west.

The second defense is that even though the said charter provision of Kansas City, for determining the district wherein property shall be assessed for grading work, and the particular ordinance which defined the district to be charged with the cost of grading Main Street, are constitutional and valid, nevertheless, in the present instance lands of large extent and great value that properly were chargeable with the cost of grading Main Street and should have been included in the assessment district, were arbitrarily omitted therefrom, and from any portion of the cost of the improvement, whereby the portion of the cost that said omitted land should have borne was wrongfully cast upon this defendant and other persons whose lots were embraced in the assessment district..

One of the tracts said to have been omitted from the assessment district in violation of the charter, is part of a parcel seven hundred feet long, north and south, and six hundred feet east and west, comprising nearly eight acres, lying immediately west of the northwest corner of the assessment district, with its north line abutting on Plaza Avenue or Twenty-fourth Street, and owned by the city, used by it for a public park, known as Union Station Park, and undivided into lots or blocks. The theory is that part of this parcel of land should have been included because it was not laid out in lots or blocks and therefore fell within the charter requirement that lands unplatted in that way shall be assessed for grading to the extent they are within 150 feet of the graded street. It should be said in this connection that the Charter of Kansas City, provides the city’s lands shall bear their proposition of the cost of public improvements. [Charter 1908, See. 26, Art. VIII.]' What was omitted from this parcel that defendant says should have been included in the assessment district, is so much of a strip 150 feet in width lvinajust immediately west of the assessment district, as is within one hundred and fifty feet of the west, side of Main Street, extending from Plaza Road or Twenty-fourth street to ■ Twenty-fifth Street.

The defendant also says that a parcel of ground 65 feet wide by 175 feet long,- and really included in the strip 150 feet wide mentioned in the foregoing paragraph, should have been included in the assessment district, even if his contention as to the one-hundred-and-fifty-f oot strip be wrong. The tract referred to compromises Lots 21 and 22 of Corrected Plat of City View Park and a small part of Lot 29 of Scarritt & Peery’s Subdivision, and a part of the lot just west of the alley west of these lands, the west line thereof being half way between Main Street and Baltimore Avenue. The theory, as we understand it, is, that if these parcels are regarded as still platted into lots and blocks, those parcels fall within the charter requirement that when lands fronting on a graded street" are laid off into lots and blocks, such land shall be assessed for grading back to the center of the block {not the center of the lots); that if this requirement of the charter had been obeyed, the west line of the assessment district would have coincided with the center of the block bounded by Main Street on the east and Baltimore Avenue on the west, these streets being parallel and about 245 feet apart, instead of going through the center of the area lying between Main Street and the alley west of it. The argument regarding those two tracts (one embraced' in the other) runs along two lines: first, if the ground is to be considered undivided into lots or blocks, since the city took it over for a public park, it should be assessed for the grading of Main Street to the depth of one hundred and fifty feet; whereas if it is to be considered as divided into lots and blocks, as originally it was, it should be assessed to the middle of the block.

Two other parcels said to have been left out of the district that should have been included in it, are Lot 1, and part of Lot 2! and Lot 56 and part of Lot 55 of Vineyard’s Fourth Addition and lying on the west side of Main Street and on the north and south side of 25th Street. The line of the assessment district was made to run through said Lots 2 and 55, leaving outside part of those lots and all of Lots 1 and 56. This was done by the city on the theory that those lots (1 and 56) were bounded by a street on the west, which in connection with Main Street on the east, 25th Street on the south and City View Avenue on the north, made a block of the lots, and under the city charter the line ought to run through the middle of the block. But defendant contends there was no street on the west; hence'no block there; and therefore the assessment district should have been carried back 150 feet.

We have marked the rough plat which accompanies this opinion with the letters A, B, C, D and E to indicate the tracts said to have been wrongly excluded from the taxed area. The heavy line on said plat defines the boundaries of the district, and the dotted line shows where the defendant contends the east line of the assessment district should have been drawn in order to make the apportionment for the work approximately equal as against the properties respectively on the east and west sides of Main Street.

The third defense is that the ordinance under which the work was done, required the tax bills issued to pay for it should be payable in four equal installments; the first to fall due June 30,1916 and each of the other installments annually thereafter; the installments to .bear seven per cent interest until due and eight per cent after default; that instead of issuing against defendant’s lot bills thus payable, the Board of Public Works issued a bill payable on demand for the total amount of the cost of grading assessed against the lot, and drawing interest at the rate of seven per cent annum if not paid within thirty days after its date.

The fourth defense is that the tax bills were issued to pay for the total cost of the work to the amount of $178,642.27, including therein the cost of excavating 17,846 cubit yards of “forced slides” at the rate of two dollars per cubic yard. These so-called “forced slides” were material loosened by blasting or otherwise, from the walls of the cut made in Main Street in bringing it to grade. The contract provided that the walls should be left vertical; but as reducing the street to the established grade made a cut ranging from thirty to eighty feet in depth, and averaging about sixty feet, the walls on either side could not be retained in a vertical condition, but earth, rock and. shale would loosen from them and slip into the street. To prevent these slides the City Engineer, after the street had been cut down to grade, ordered the contractors .to cause the walls to be sloped back from the base; but it seems slides continued to happen in spite of the efforts made to prevent them. For this work the contractors were allowed pay at the rate of two dollars per cubic yard, and the cost of it was included in the tax bills; the defendant contends and the court found, wrongly included, for the judgment in plain - tiff’s favor was for onlv $1100.90, with interest at seven per cent, due June, 1915, instead of for the face value of the bill with interest.

The appeal taken bv the plaintiff auestions the correctness of the judsment for deducting from the tax N'1’ defendant’s proportionate part of the cost of the extra work done to prevent slides.

It will have been perceived from the part of the Kansas City Charter of 1908 quoted above that the method of assessing’ property for street grading is not by the front-foot. nor bv the area of the parcels of land within the defined benefit district, butbv a pro-rata assessment fof the value of said lands as fixed by the City Assessor.

"We show in figures some -other facts. All the grad-ins' work consisted of excavating and the total number of cubic yards excavated was 165,981. The number of cubic-yards paid for at the- contract price of 96% cents per cubic yard, was 148,135.

The total cost of. that part of the work was $142,-950.27; and for defendant’s proportionate part of that amount judgment was rendered for plaintiff.

The number of cubic yards of excavating paid for at two dollars per cubic yard (work done to prevent slides) was. 17,846. The total cost of that work was $35,692; and this amount the court held could not be charged against the ground in the assessed district. The total cost of the grading was $178,642.27.

The total amount assessed against the parcels of ground on the east side of Main Street, as we compute it from the figures on the map (No. 7%) put in evidence and conceded to be correct, was $124,102.44. The total amount assessed against the parcels of ground on The west side of Main Street, as we compute it from said map, was $54,539.83. The excess of assessment against property on the east side over the assessment against propertv on the west side, was $69,526.61. These calculations probably are not exact; but they sufficiently approach ae- ■ curacy to show the large difference in the amounts assessed on the two sides of the street. The part of said excess that fell upon property on the east side, which lies beyond the dotted line (to-wit, east of the line defining a depth of east side property corresponding with the property on the west side) is $64,086.15.

The comparative areas of the lands assessed on the two sides run in these ratios:

“Q. Have you at my request computed the areas of the private property in each block on either side of Main Street from Twenty-fourth to Twenty-sixth Street between the benefit district shown upon this plat Exhibit 7 in evidence ? A. I have.

“'0. Will you state, if you please, within tlm are" the result of that computation? A. From Twenty-fourth to .Esplanade the area on the west side, 12,785 square feet: east side, same block, 59,006 square feet.

“Q. About what is the ratio or proportion? A. Their ratio is 4.6. In block Esplanade to City View on the west side 26,600. On#ithe east side 77,4Í9. Their ratio 2.9. In block City View to Twenty-fifth Street on the west side, 8,197 square feet; on the east side, 46,678. Their ratio 5.7. In block Twenty-fifth to Twenty-sixth Street the are’a on the west side, 18,181 square feet; on the east side, 76,858 square feet. Their ratio 1.6.” [Testimony of Charles D. Woodward, Civil Engineer.]

Other facts will be stated as we proceed if necessary.

I. A full statement of the facts of the case was made for the purpose of passing on all the questions raised; but we have come to the conclusion that the tax bill in suit is invalid for the reason that installment tax bills should have been issued. Hence it seems best to leave undecided some of the propositions raised in order that other tax bills may be issued; the time for doing which, it has been stated, is brief. The questions not decided can be raised in an action, if any is brought, on the new tax bills.

Constitutionality.

But one or two matters other than that relating to the form of the bill ought to be determined, particularly +hc cuestión of the constitutionality of the .. „ , ' revisions of the city charter for laying out assessment districts: for if that part of the charter is void, no good tax bill could be issued under it.'

The proposition is unsound that the scheme of assessment for grading streets prescribed in the charter is unconstitutional and void, in denying to property owners the equal protection of the law and depriving them of their property without, due process' of law. It is true the charter automatically determines the boundaries of the assessment; district, or directs how it shall be determined, and citv officials have no power to deviate from the charter method. , In substance that method directs that where tracts of land to be taxed for improvements are divided pito lots and blocks, the line of the taxation or benefit district shall extend back to the middle line of the block: and that where the tracts are not divided into lots "or flocks, the line shall extend back one hundred and fifty feet from the near line of the street. But it does not follow that the scheme is bound to operate so unjustly in practice as to violate the constitutional rights of property owners, or .so as to work injustice at all. If all the blocks in the city were three hundred feet deep, the line of the assessment district would extend one hundred and fifty feet into the blocks, and the area included in the district would be the same whether the land was laid off into lots and blocks or not; and no one could know without proof, whether they are or not.

We are cited to the decision of the Supreme Court of the United States in Gast Realty & Investment Company v. Schneider Granite Company, 240 U. S. 55, as authority for the proposition that the charter of Kansas City in this particular is unconstitutional. That decision dealt with the charter of the City of St. Louis, which, in its terms, is much like that of Kansas City, except that’the mode of assessing for the St. Louis improvement involved in the case, namely, the paving of a street, was partly by the frontage of the abutting properties and partly by the area. The assessment district as defined by an ordinance and according to the charter, took in four or five hundred feet in depth of the Gast Company’s land; whereas other parcels, some on the same and some on the opposite side of the street, were assessed to a depth of 100, 150 or 240 feet. What the Supreme Court of the United States decided was not that the scheme of assess.rnent provided by the St. Louis Charter was inherently in conflict with the National Constitution, but that the ordinance enacted pursuant to it and defining the assessment district under examination, worked out in such a mode as to deprive the Gast Company of its property without due process of law, and, therefore, was void as to said comnany and other property owners similarly discriminated against. So this court, in construing the scheme of the Kansas City Charter for taxing ground for the cost of grading a street, held, not that the charter scheme was void, but that the ordinance enacted under it in that case, operated so unequally by reason of the inequality of the assessed land included in and omitted from the benefit district, as to be unconstitutional against the defendant sued, because it deprived him of property without due process of law. [Commerce Trust Co. v. Blakely, 274 Mo. 52.]

Tracts'4 a ’

II. As regards the supposed omitted tracts that ought to have been included in the assessment district, we take up'first the tracts in the northwest comer of the assessment district, marked A, B, and C. Various documents were put in evidence to prove those tracts were not laid off in lots and blocks and should have been included in the district through 150 feet back from the west line of the street. Those parcels had been laid off in lots and blocks; but the documents in evidence are supposed to prove the streets had been vacated by the city in turning the ground into the public park known as Union Station Park, after it had been conveyed to the city by the Kansas City Terminal Railway Company, pursuant to a contract between the city and the railway company which bound the city to grade it. Of course, if the streets had been vacated when the benefit district was established, the land no longer lay in blocks; but the evidence does not prove the streets had been vacated as yet, or that proceedings to that end, prescribed by the charter, had been taken. The court below may have found the land still lay in lots and blocks, and there was evidence to support the finding. .

But it is said, even if the streets were still open and the land divided into lots and blocks, as it was originally laid off, nevertheless the line of the benefit district should have been carried seventy-five feet from the west line of Main Street. But this would have been a violation of the charter requirement that the line should extend only to the middle of the block, if the block in this instance was only 76 feet in width, or thereabouts, as the evidence tended to prove. We see no reason to disturb the court’s conclusion from the facts about those tracts.

The other parcels alleged to have been, omitted from the taxation district, although they should have been included, are tracts marked D and E in Vineyard’s Fourth Addition. The district there is thirty feet wide, and the defendant contends it should have been run back that much further, because there is no street to the west of the Lots 1 and 56; therefore, the middle line of the block runs about twice as far to the west of Main Street as the assessment line runs. Evidence was put in to show a street running north and south immediately west of Lots 1 and 56, had been marked on the original plat of the addition and that said plat contained a recital of dedication to the public of all the streets and alleys marked on it. It seems the street to the west, if there was one, had not been used, or had been used but little; yet there „was evidence to uphold the conclusion by the court below as trier of the facts, that there was a public street there. If so the assessment line properly was run in the middle of the block, between Main Street and said other street to the west. It appears said other street was twenty-five feet wide and was denominated Main Street on the plat of the addition, perhaps because the principal Main Street was not then. recognized as a street or was expected to run into the other street. Whatever the reason may have been, the latter street was called Main Street on the plat where it was shown to be dedicated.

As the judgment in the present case must be reversed, we are not to be understood as determining finally that said omitted parcels were rightly left out of the district. What we mean to determine regarding them is that if they were laid off in lots and blocks, and if there was a street in Vineyard’s Fourth Addition where the plaintiff contends and the evidence tends to prove one was, then and in such case the charter required the west line of the district to be- run through the middle of the blocks. The effect of such a requirement on the validity of the tax bill; also the effect on it of the width of the lands included in the district on the east side of Main Street in comparison with the width of those on the west, and the further question of whether, under the charter or the general principles of the law, any inequalities and injustices in those matters, can be cor-reeled by abatement from tbe amount assessed against defendant’s lot, are left undetermined.

The question, too, of the soundness of the rulings below, regarding the inclusion of the cost of the forced slides, is left open.

There is a provision in the city charter that reads like the determination of whether a tract has been laid off in lots or blocks, is left to the Council in doubtful cases,. which determination is conclusive for all purposes. [Charter 1908, Art. VIII, sec. 3, p. 315.] Nothing has been said about the provision and we decide nothing as to its bearing on this assessment.

III. The recommendation of the Board of Public Works for the grading and the ordinance authorizing the work, provided it should be paid for in tax bills to fall due in four equal annual installments.

It is pointed out that Ordinance No. 18683, which again authorized the grading, said nothing about installment tax bills, and that said ordinance controlled, as to the kind of bills to be issued, because it was the ordinance under which the work was done. Said ordinance merely provides that the work shall be paid for in special tax bills. It does not purport to repeal or modify the original ordinance (No. 16750) which provided for installment bills, and was as much authority for the grading as No. 18683; in truth, was the real authority, for it does not appear a second ordinance was needed, unless it was needed to validate the contract between the city and Spitcaufsky Brothers. The first ordinance remained in force, and determined the kind of bills which should be issued, in the absence of any repeal or amendment of its provision as to that matter. The work was bid for on those terms and the owners of lots which would be taxed to pay for it and who were allowed a hearing in advance, must have taken for granted payment would be in installment bills as the ordinance so -declared, thereby according them a valuable privilege and one 'the charter authorized. Moreover, the rates of interest in the two classes of bills were different, as were the dates from wbicb the interest ran. The bills issued might be sued on at any time and had to be sued or withiii two years or they could not be collected; that is, the property owners were bound to pay the bills in any event within two years; whereas the installment bills would fall due annually through four years.

It is argued that' defendant should have tendered one-fourth of the bill in suit at the end of the first year; and so on- that is to say, should have demanded the right to pay the bill issued against him in four installments. We are of the opinion that this argument does not meet the point pressed. The tax bill declared on as a cause of action was issued in violation of the ordinance for the work and of the charter; therefore, is invalid and is no basis.for a cause of action against the defendant.

In this action at law no estoppel can be raised against the defense that the bill in suit is void for.being contrary to the ordinance and charter in the matter of installments, time for suing on it, and rates and period of interest, merely because the defendant did not offer to pay one-fourth of the assessment against his property.

It is not to be understood that we hold the assessment void; for if time permits the proper bill may be issued. The judgment is reversed.

All concur, except Woodson, Jabsent.


author: WILLIAMS, J. GRAVES, J.

text:
    CHARLES F. SMITH, Appellant, v. CLEM A. DIRCKX, County Clerk.
    In Banc,
    June 19, 1920.
    1. INCOME TAX: Act of 1919: Applied to Entire Year. The Legislature intended that the Act of 1919, increasing the income tax from one-half of one per cent to one and one-half per cent, should apply to “the entire net income received in the calendar year 1919.”

      2. -: Retrospective Act: New Obligation. So much of the amendment of 1919 to the Income Tax Daw as undertook to assess an additional tax of one per cent upon that portion of the net income for the year 1919 which was received by the taxpayer prior to the time said amendment went into effect on August 7, 1919, created a new obligation and imposed a new duty, and was violative of the provision of the Constitution (Art. 2, sec. 15) declaring that no law “retrospective in its operation” can be passed by the General Assembly.

      Held, by GRAVES, J., dissenting, that the Act of 1919 was in effect a repeal of the prior act, and the Legislature could have entirely repealed the prior law and enacted a new income-tax law imposing a tax on all the income received during the year 1919 prior to December 31, and that was in effect what was done; and the taxpayer cannot complain that the Legislature enacted a law in May, effective in August, which imposed a tax upon his entire income received during the year the law was enacted, for such a law would not create a new obligation or impose a new duty, and would not be retrospective. The basis for an income tax is the income for a whole year, and the,amount of the income cannot be ascertained until the year ends, and a law which imposes a tax on the income for the entire year, enacted before the year ends, is not retrospective.
    3. --: -: Extent of Operation. But the fact that the amendment of 1919 to the Income Tax Law, in so far as it undertook to increase the tax on the income- received by the taxpayer prior to the time said amendment went into operation on August 7, 1919, was retrospective, did not make invalid the tax imposed by the former law upon so much of the income as was received prior to August 7, at the old specified rate, for that portion of the amended rate which did not exceed the old rate did .not impose a new obligation.
    4. -: -: Power of General Assembly. The General Assembly, unless restricted by the Constitution, may enact a valid retrospective law, unless inhibited by some other constitutional provision. But it has no power to enact such a law when the Constitution, specifically says that no law “retrospective in its operation” can be passed.
    Appeal from Cole Circuit Court. — Hon. J. G. Slate, Judge.
    Reversed and remanded.

      A. L. McCawley and Adolph McGee for appellant.
    (1) The Legislature has no power to make an income tax rate retrospective in its operation. Sec. 15, art. 2, Mo. Constitution; Gladney v. Sydnor, 172 Mo. 318; Reed v. Swan, 163 Mo. 100; City of St. Louis v. Clemens, 52 Mo. 143; Toll v. Eastern Railroad, 18 N. H. 547; MeKeown v. Davidson, 43 Ga. 480; Rosche Bros. v. Commissioners, '50 Ohio St. 103; Young v. Town of Henderson, 76 N. C.,420. (2) If the Legislature has the power to make an income tax rate retrospective in its application, it did not in the passage' of the Act of 1919 amendatory of the Income Tax Law of 1917, intend to exercise that power. Walton v. Fudge, 63 Mo. App. 52; Reed v. Swan, 133 Mo. 1; Leet v. State Bank of St. Louis, 115 Mo. 184.

      Jamison é Thomas as Amicus Curiae.

    (1) The Legislature is prohibited by the State Constitution (Art. II, sec. 15, and Art. XII, sec. 19) from passing a law retrospective in its operation, or which imposes upon the people of the State a new liability in respect to transactions or considerations already past. Hence, the Income Tax Law of 1919 (Laws 1919, pp, 718-721), which went into effect on August 7,1919, and which assessed a tax upon income accruing prior to said date, is retrospective, in that it imposes a new liability in respect to transactions or consideration already passed, and is, therefore, in violation of above named sections of our Constitution. Hope Mut. Ins. Co. v. Flynn, 38 Mo. 483; Skate v. Hernán, 70 Mo. 441; Barton County v. Walser, 47 Mo. 200; Leete v. Bank, 115 Mo. 198; Gladney v. Sydnor, 172 Mo. 330 ; State v. Railway, 97 S. W. 71, 100 Tex. 153; Young v. Town of Henderson, 76 N. C. 420; Cooley on Taxation (3 Ed.), 492; 1 Bouvier Law Diet., p. 1104; Sedgwick on Construction of Const, and Statutory Lav (2 Ed.), p. 160. (2;) Where the language of an act plainly makes it applicable to past acts and transactions, it must be given a retrospective operation — even though it thereby becomes invalid because it conflicts with the constitutional prohibitions of retrospective legislation, the impairment of contracts, or the disturbing of vested rights. 25 R. C. L. p. 790; Cooley on Taxation (3 Ed.), 494. (3) Prior statutes being expressly repealed by an act, are no longer in force, even though such act, by reason of some provision, be unconstitutional. State ex rel. v. Wardell, 153 Mo. 319; Blankenship v. Ry, Co., 160 Mo. App. 637.

      Frank W. McAllister, Attorney-General, and John T. Gose, Assistant Attorney-General, for respondent.
    (1) When a statute treats the year’s income as one entire thing, it is not retrospective in the constitutional sense, because in that entirety there is included some portion of the year’s income which was earned or received prior to the date of the law. State v. Frear, 148 Wis. 514; Black on Income Taxes (4 Ed.), sec. 22, p. 28; Glasgow v. Rowse, 43 Mo. 479'; Endlich, Interpretation of Statutes, sec. 280, p. 377; Moore v. Miller, 5 App. D. C. 427; Murchison v. McNeill, 60 N. C. 226; People v. Spring, 92 N. Y. 390; Drexel v. Commonwealth, 46 Penn. 40; Edwards v. Keith, 224 Fed. 587; Stockdale v. Ins. Co., 87 IT. S. 331; The Queen v. St. Mary, 12 Q. B. 127; The Queen v. Christchurch, 12 Q. B. 149. (2) Our statute not only deals with the income of 1919 as an entirety, but the income which it takes as the basis of the tax is an income which cannot be split up into parts and some parts or parts be referable to any particular month or months prior to the enactment of the law. Our act concerns itself with only the entire net income for the calendar year 1919. Such entire net income has, and can have no existence prior to the 31st day of December, 1919. It becomes net income only after the deduction of all exemptions and allowances permitted by the act. No part of the net income of any year is or can be referable to any particular month. It is an entirety; indivisible and indissoluble. Tbe law, as a law, is wholly prospective, both as to the time taxed and the purpose of the tax. Sec. 1, Laws 1919', pp. 718-719. When the net income is finally determined, it is something quite distinct from the gross income as received month by month. It is impossible to pick out any part of such net income and say that it is the result of the labor or earnings of any particular month. (3) Apart from the foregoing, the power of the General Assembly to enact such statute is no longer open to question, because this court has determined that the Legislature is no more restricted in taxing incomes than it is in laying occupation and other taxes relating to the activities of the individual taxed. Under this construction of the income tax, the income of any year is but the measure of the tax. The objection of retrospectivity, therefore, being merely to the measure of the tax, is obviously without merit. Ludlow-Saylor Wire Co. v. Wollbrinck, 275 Mo. 339; Glasgow v. Rowse, 43 Mo. 479; City of Richmond v. Creel, 253 Mo. 257; St. Louis v. McCann, 157 Mo. 301; City of Aurora v. Mc-Gannon, 108 Mo. 38; St. Louis v. Sternberg, 69 Mo. 301; Express Co. v. St. Joseph, 66 Mo. 675.
   WILLIAMS, J.

This is an appeal from the judgment of the Circuit Court of Cole County, sustaining a demurrer to the plaintiff’s petition. The suit involves the Construction and validity of a portion of an amend' ment to the Income Tax Law of this State, approved May 6, 1919. [See Laws of Missouri of 1919, page 718, et seq.] The petition omitting caption and signature is. as follows:

“Comes now the plaintiff herein for himself and in behalf of all other persons similarly situated, and files this, his bill in equity, alleging:

“First. That he is now and, at all times herein mentioned, was .a citizen and resident and taxpayer of the City of Jefferson, County of Cole and State bf Missouri.

“Second. - That defendant, Clem A. Dirckx, is the duty elected, constituted and acting county clerk of said Cole County, Missouri.

“Third. That plaintiff is now and was at all times hereinafter mentioned, engaged in the real estate business in said City of Jefferson, in Cole County, Missouri; that he is now and was at all times herein mentioned the owner of real and personal- property in said City of Jefferson; that during the calendar year 1919 he earned and received a net income from his said property and business in the amount of three thousand dollars, and that one-half thereof, to-wit, the sum of $1,500, was earned and received on and prior to the 7th day of August, 1919; that after deducting the amounts permitted by law there remained of said net income of $3,000 a balance of $800, upon which an income tax was due the State for the year 1919, to be assessed and paid during the year 1920; that on the . . . day of February, 1920, plaintiff, made out and filed with the assessor of Cole County, Missouri, a return of the total net income of plaintiff for the year 1919 in pursuance of the requirements of the Act of the G-eneral Assembly of the State of Missouri, approved April 19, 1917, Laws of Missouri 1917, pages 524 to '538, inclusive, entitled, ‘An Act providing for the assessment, levying, collecting and paying of income tax,’ and amendment thereto approved May 6, 1919, Laws of Missouri 1919, pages 718 to 721, inclusive; that said assessor duly entered said return upon his income tax books as provided by law, and has certified the result to the defendant for the .purpose of computation of the income tax thereon and the entry thereof upon the tax books for collection from plaintiff herein; that defendant is. threatening and has declared his intention.to compute the taxes thereon at the rate of one and one-half per centum upon the entire taxable income for the year 1919, and-deliver the same to-the county collector for collection- against this plaintiff, and is threatening to .expend funds- of the State of Missouri derived from taxpayers, of whom plaintiff is one, in the enforcement of such unlawful and unauthorized rate.

“Fourth. Plaintiff says that the declared intention and threats of defendant to tax his entire taxable income for the year 1919 at the rate of one and one-half per centum of said income, is based upon defendant’s interpretation of Section 1, Laws of 1919, pages 718 and 719; that said interpretation so placed by defendant upon said law is unauthorized by and in violation of said law; and that said section as so construed by defendant would he-unconstitutional, null and void, in that said section so construed would be in direct violation of Sections 15 and 30 of Article II and Section 19 of Article XII of the Constitution of Missouri, and the Fifth Amendment of the Constitution of the United States, because, so construed, it is retrospective and retroactive in its operation and imposes upon plaintiff and the people of each county of this State a new liability in respect to transactions or considerations already past and takes the property of plaintiff, and those similarly situated, without due process-of law.

“Fifth. That, notwithstanding said interpretation so'placed upon said law by defendant is unauthorized by and in violation of said law, and notwithstanding the unconstitutionality of said section of said income tax law as construed by defendant, he has declared his intention and 'is now threatening to proceed under such construction to compute ahd enter income taxes thereunder against many and diverá and numerous individuals and corporations in said Cole County, Missouri, at the rate of one and óne-half per centum upon the entire net income for the year 1919, and that unless this court interferes ' by injunctive process, a multiplicity of suits to. collect taxes so computed and certified forvcollection, will of necessity result; '

“Sixth, Plaintiff further states that defendant’s threatened unlawful, wrongful and unauthorized action is the result' of misinterpretation of said Section 1 of the Laws of 1919, pages 718 and 719; that said amendment of the Income Tax Law of 1917, Laws of 1919, pages. 718 to 721, of which said Section 1 is a part, was approved May 6, 1919, and became effective August 7, 1919; that said section of said law when properly and rightfully construed causes said rate of one and one-half per centum to be applied only to that part of the income of 1919 earned and received on and subsequent to August 7,1919, and that the balance of said income, to-wit, that earned and received on and prior to Auvust 6, 1919, is taxable at the rate prescribed by the original act of 1917, to-wit, the rate of one-half of one per centum; that for defendant to compute and certify to the collector for collection the entire net taxable income of plaintiff for the year 1919 at the rate of one and one-half per centum as defendant has declared his intention and is now threatening to do, is in violation and unauthorized by said law, and is an impairment of plaintiff’s vested right, an imposition upon him of a new liability in respect to transactions and considerations already past, and the taking of his property without due process of law.

‘£ Seventh. Plaintiff has no adequate redress or remedy by suit at law, and is without adequate remedy except by writ of injunction in a court of equity.

££Wherefore, by reason of such wrongful, unauthorized and unlawful interpretation of said law so construed by defendant in violation of said law, and by reason of the unconstitutionality of said income-tax law as construed by defendant, and by reason of his declared intention and threat to unlawfully, wrongfully and without authority of law compute and extend the tax upon plaintiff’s entire income for the year 1919 at the rate of one and one-half per centum, and by reason of each and every of the fáets hereinbefore set out, plaintiff prays the court to permanently enjoin and restrain defendant from computing and entering upon his income-tax book, for delivery to the collector of Cole County, for enforcement against plaintiff, a tax upon his entire net income for the year 1919 at the rate of one and one-half per centum, and to limit and restrain the computation and entering of said income tax at the rate of one' and one-half per centum to that part of plaintiff’s taxable income for the year 1919 earned and received on and subsequent to the date of the taking effect of said amendment, to-wit, August 7, 1919, and to permanently enjoin and restrain said defendant from computing and entering upon his income-tax book that part of plaintiff’s income earned and received, to-wit, the sum of $400, prior to the date of the taking effect of said amendment, at a greater rate than, one-half of one per centum thereon, and for such other" and further relief as may be just and equitable, and for his costs in this behalf expended.”

The Income Tax Act as originally passed in this State (Laws 1917, p. 524) provided the rate of taxation upon net income for the last half of the calendar year of 1917, and each calendar year thereafter, at one-half of one per centum.

This law was amended by an act approved May 6, 1919, (Laws 1919, p. 718), providing that the rate of taxation upon net incomes for the calendar year of 1919, and in each calendar year thereafter, should be one and one-half per centum.

I. There are but two questions presented upon this appeal. They are purely legal ones and may.be stated as follows:

1st. Did the General Assembly by the amendment of 1919 (Laws 1919, p. 718) undertake to apply the increased, rate to the net income received during the entire calendar year of 1919?

2nd. If the above amendment did so provide, does that portion of the amended rate which was an increase over.the-old rate operate retrospectively, in violation of article 2, section 15, of the Missouri Constitution, as to that portion of the net income received by appellant during, the calendar year 1919, and prior to • August 7, 1919, the date upon which the amendment became- effective? These questions will be treated in their order.

II. We are of the opinion that the General Assembly intended that the amendment of 1919 should apply to the net incomes for the entire year of 1919. Section 1 of the amendment reads as follows:

Titltr^A ”X"ScWT

“There shall be levied, assessed, collected, and paid annually upon the entire net income received in the calendar year nineteen hundred nineteen from all sources by every individual, a citizen or resident of this State, a tax of one and one-half per centum upon t such income; and a like tax shall be levied, assessed, collected, and paid annually supon the entire net income received in the year nineteen' hundred and nineteen from all sources within this State by every individual, a non-resident, including interest on bonds, notes or other interest-bearing obligations of residents, corporate or otherwise. The foregoing tax shall apply to the entire net income, except as hereinafter provided, received by every taxable person in the year nineteen hundred and nineteen and in each calendar year thereafter.”

It will thus be seen that the amendment specifically provides that the tax shall apply to the entire net income received by every taxable person in the calendar year 1919. We therefore have no hesitation in saying that income received in 1919 and prior to the taking effect of the amendment was intended to be included.

Law°SPeCtlVe

III. Does the additional one per cent operate retrospectively upon that portion of the net income for the year 1919 which was received by appellant prior to the going into effect of the amendment and thereby violate Article 2, Section 15, of our State Constitution1? After very careful consideration of this point we reach the conclusion that the same must be answered in the affirmative.

Section 15 of Article 2 of oar Constitution provides: “That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its ■operation, or making any irrevocable grant of special privileges or immunities, can be passed by the General Assembly.” (Second italics ours).

It will thus be seen that our Constitution contains an express inhibition against the passage of a “law retrospective in its operation. ’ ’

In the case of Reed v. Swan, 133 Mo. 100, l. c. 108, Gantt, P. J., speaking for the court quoted with approval Mr. Justice Story’s definition of a retrospective law as follows: “Every statute which takes away or impairs vested rights acquired under existing laws, or creates a ne%o obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective.” .(Italics ours.)

To the same effect are the following decisions: Leete v. State Bank, 115 Mo. 184, l. c. 198; Bartlett v. Ball, 142 Mo. 28, l. c. 36; Bartlett v. Tinsley, 175 Mo. 319, l. c. 332; Ruecking Const. Co. v. Withnell, 269 Mo. 546, l. c. 558.

. Applying the above definition to so much of the amendment of 1919 as undertook to assess an additional one per cent upon that- portion of the net income for the calendar year of 1919, which was received by appellant prior to the going into effect of said amendment we are clearly of the opinion that it “did create a new obligation or impose a new duty” in regard thereto and that the amendment does to that extent operate retrospectively and is in violation of the above mentioned constitutional inhibition against retrospective laws. It would be difficult to reach any other conclusion while looking the constitution squarely in the face.

However, this should not operate to prevent the collection of a tax not exceeding one-half of one' percent for the period above mentioned. This for the reason that since the old law imposed a tax of one-half of one per cent upon that portion of his income which appellant received prior to the taking' effect of the 1919 amendment, that portion of the amended rate which did not exceed the old rate did not create a new obligation or impose a new duty. It therefore follows that a tax not to exceed one-half of one per cent may be collected under the amendment with reference to the net income received by appellant prior to the going into effect of the amendment, without violating the Constitution.

We have been unable to ■ find any decision which may be considered as exactly in point on the retrospective feature of the statute under review. The nearest to it and one which in principle may be said to. be in point is the-case of Texas v. Railway, 100 Texas, 153. In that ease the Supreme Court of Texas had under consideration the Texas'Act of July 5, 1905, which undertook to impose a tax on the gross receipts of all railways in that State, for the entire year of 1905. The constitution of Texas provided that “no bill of attainder, ex post facto laws, retroactive laws, or any law impairing the obligations of contracts shall be made.” In passing upon the question as to whether the act was retroactive with reference to that portion of the gross income received prior to the passage of.the act the court said, at page 175:

“If the act,in question be construed to embrace the whole of the year 1905 and entitles the State to collect the full annual tax for that year, it would confer upon the State a right against the railroads which did not exist before the law took effect, and it would impose upon each railroad’ a burden to which it was not liable before the law became effective. It is quite plain that the act comes within the provision of the section of the Constitution above quoted and is retroactive in its effect. [Sutherland v. DeLeon, 1 Texas, 250.] The defendants in error claim that because the Legislature could not impose the tax for the portion of the year which expired before the law became effective it can not be enforced for any portion of the taxes for the year 1905. The fact that the Legislature had no power to levy the tax for the time anterior to that at which the law took effect does not render it void as a whole, but the court will give effect to it for that proportion of the time which expired after it‘became effective; that .is, the court will sustain the tax so far as the Legislature had authority'to impose it.”

The learned Attorney-General cites many authorities in support of his contention that the act in question does not in any sense violate the constitutional provision against retrospective laws. The most important cases and authorities cited by him are: State v. Frear, 148 Wis. 456, l. c. 514; Black on Income Taxes (4 Ed.), sec. 22, p. 28; People v. Spring Valley Gold Co., 92 N. Y. 383, l. c. 390; Drexel v. Commonwealth, 46 Pa. l. c. 40; Stockdale v. Atlantic Ins. Co., 87 U. S. 823, l. c. 331.

A careful investigation of the above authorities discloses that in none of them was the court or author dealing with a constitution which contained an express provision against retrospective laws, as is the case with our Constitution. It is a well settled rule of law that, absent an express constitutional inhibition to the contrary, the General Assembly of a State or the Congress of the United States may pass a retrospective law, provided the law so passed does not violate some other constitutional provision. [Cooley’s Constitutional Limitations (7 Ed.), 529; 12 C. J. 1085.] But when the ■Constitution expressly prohibits such a law, as is the situation with which we are now dealing, quite a different situation is presented, and those authorities dealing with legislative action passed by legislative’ bodies not thus limited serve no useful purpose in the solution of the problem now presented.

In the case of Leete v. State Bank, 115 Mo. 184, l. c. 198, Sherwood, J., in discussing this question said: “But few states have organic laws like our own on the point now being considered, and this will account for the most part for an apparent divergence of adjudication in regard to it. Touching this subject Judge Cooley (Constitutional Limitations- (6 Ed.), 454, 455) observes: ‘There are numerous cases which hold that retrospective laws are not obnoxious to constitutional objection, while in others they have been held to be void. The different decisions have been based upon diversities in the facts which make different principles applicable. There is no doubt of the right of the Legislature to pass statutes which, reach back to and change or modify the effect of prior transactions, provided retrospective laws are not forbidden, eo nomine, by the state constitution, and provided further that no other objection exists to them than their retrospective character.’ ” (Italics ours).

Prom the foregoing it follows that the trial court erred in sustaining the demurrer to plaintiff’s petition and that the judgment should be reversed and the cause remanded for further proceeding not inconsistent with the views herein expressed.

All concur, except Graves, J., who dissents in a separate opinion, and Woodson, J., absent; Goode, J., concurs in the result.

GRAVES, J.

(dissenting). — I cannot agree to the opinion of my learned brother in this case. The Act of 1919, in effect, was a repeal of the Act of 1917, and the enactment of a new law. It clearly repealed the substantial parts of the Act of 1917, and enacted new sections. It repealed the'section as to the rate of taxation, and other important sections.

That the Legislature could have repealed the Income Tax Law of 1917, without affecting the rights of plaintiff, there can be no question. In effect this is what was done. That it could have immediately thereafter passed a new income tax law there can be no question. This in effect is just what was done by the Act of 1919. To my mind the question of retrospective action of the Act of 1919 is not an element in the case further than determining the fact whether the Legislature can, in the middle of the year, pass a law providing for an income 'tax on the income of the whole year. Suppose the Legislature of 1919, in the early portion of the session, had passed an act repealing outright the Act of 1917. Suppose further, that before the clos'e of the session the present amended act had been passed as a new income-tax law, .where could plaintiff find room for complaint1? His only complaint would be that the Legislature passed a law in May, effective in August, which levied an income tax upon the net income for the whole year of 1919. To my mind this is the only question in this case. I do not agree to the idea that half of one-per cent can he collected on income prior to August, and one and one-half per cent on income thereafter. This, because the basis of the tax, by very act itself, is the income for the year, and not a part of the year. There is no authority in either act (1917 or 1919) for fixing a tax upon income for portions of the year.

II. As suggested above, the only question is, whether or not by an act passed in May, and effective in August, an income tax can be levied upon the net income for the entire year of 1919? If so, the law is valid.

The usual basis for an income tax is the income for a year’s time. This cannot be fixed and determined until the end of the year, the income of which is to be taken as the basis for the tax. So that a law passed in May and effective- in August does not reach backward, or act retrospectively, because the thing upon which it acts does not come into existence until December 31st of the year in which the law became effective. The law operates upon the income of the year, as such income is determined on the last day of the year. The law imposes no new liability upon transactions already past but it only imposes a liability upon a transaction which-closed on December 31, 1919. The law of 19.19 was in force long before the transaction here involved was completed, or even came into existence. The individual income of 1919 might be made up of items, ■ but the income for the year did not come into existence until December 31, 1919. In Black on Income and Other Federal Taxes, sec. 22, p. 28, it is said:

“On general principles and irrespective of explicit constitutional limitations, a statute imposing an income tax may subject to taxation the income of the citizens for the whole of the current year in which the statute is passed, that is, not only so much of the income as accrued from the date of the enactment of the law to the end of the year, hut also that portion which- accrued or was earned from the beginning of the year to the date of the law. For the year’s income is treated and considered as one entire thing, not as made up of several portions or items. And. hence, although the statute might be called retrospective in its operation upon a part of the first year’s income, it is not retrospective in such a sense as to render it unconstitutional.”

To similar effect is Endlich on Interpretation of Statutes, sec. 280, p. 377, thus: “But a statute is not retrospective in the sense under consideration, because a part of the requisites for its action is drawn from a time antecedent to its passing.”'

But to my mind the real answer do all contentions is that the income of the year does not and cannot come into, or have an existence, until the end of the year, and the law being in force prior to that time, is in no sense retrospective in action. For these reasons, hurriedly expressed, I dissent.


text:
    THE STATE ex rel. GEORGE A. CURRIER et al. v. VICTOR H. FALKENHAINER, Judge of Circuit Court.
    In Banc,
    June 19, 1920.
    1. APPEAL BOND: Buie of Trial Court: Examination in Open Court: Directory. The rule of the trial court required appellant, when offering an appeal bond, “to examine the persons proposed as sureties or otherwise to satisfy himself of their responsibility” and to give notice to the proposed sureties to “be present in court for examination.” Belcl, that the rule is not in terms violative of the Constitution or statutes, but a literal conformity therewith by an examination in open court cannot be approved if it works a denial of Justice. It is to be considered as directory, and any method of determining the qualifications of the proposed sureties, which is within the reasonable exercise of the court’s discretion and which will not lesson the integrity of the judgment, should be pursued.

      2. -: -: -: Affidavit: Technical Error: Eight Conclusion. Appellant filed an appeal bond signed by three sureties. Two of them appeared in court, according to notice, and were examined as to their qualifications. The other was’ at the time confined in a hospital because of an infectious disease, but his affidavit, in which was given the description of his real and personal property and its value over his liabilities, was filed by appellant. The court declined to consider the affidavit, because the rule required an examination in open court and ruled that the property of the other two sureties was insufficient. Held, that the exclusion of the affidavit was technical error; but an examination of its statements, together with the testimony of the other two sureties, shows that the three did not possess enough property above their liabilities to make the bond good and sufficient, and therefore the technical error did appellant no harm, and the trial court cannot be compelled by mandamus to approve the bond.
    3. -: -: -: Mandamus. Where the trial court has exercised its discretion, relief cannot he afforded by mandamus, unless there has been a palpably arbitrary exercise of the discretion in the very face of the law and the conceded facts; and though the trial court committed technical error, yet, if in view of the conceded facts it did not abuse its discretion, mandamus is not available.

      Mandamus.

    Writ quashed.

      Christian F. Schneider for relators.
    (1) This court has the power to issue a writ of mandamus in this case. Sec. 3, art. 6, Constitution; State ex rel. v. Grimm, 220 Mo. 483; State ex rel. v. Patterson, 207 Mo. 129; State ex rel. v. Smith, 172 Mo. 446, 619; State ex rel. v. Weeks, 93 Mo. 499'. (2) The bond offered was sufficient. Secs. 2038, 2042, R. S. 1909. (3) Rule No. 40 of the St. Louis Circuit Court is null and void because it is in contravention of the provision of said Section 2040, because it shortens the time given defendant by said statute in which to give such bond and makes requirements in the giving of such bond not provided in said statute. Said rule is therefore “unconstitutional.” State ex rel. v.' Withrow, 133 Mo. 500; Pelz v. Bottinger, 180 Mo. 261; State ex rel. v. Cockrell, 217 S. "W. 52;9. Under the law, the pleadings in this case, and the facts as shown herein, the peremptory writ of mandamus ought to issue directing the respondent to file, read and consider the affidavit of Stephen L. Smith, and to approve and order filed as a supersedeas bond'herein the said appeal bond signed by the said relators as principals and said Smith, Houghton and Currier as sureties.

      Glen MoMer for respondent.
    (1) The St. Louis Circuit Court has the authority to adopt reasonable rules of procedure for the orderly conduct of its business. Mo. Constitution, art. 6, see. 27; Sec. 3859, R. S. 1909; Rigdon v. Ferguson, 172 Mo. 49. (2) The construction of Rule 40 placed upon it by that court, and giving to the person in whose favor an appeal bond is to be given the right to examine the proposed sureties as to their solvency, will be adopted by this court as the true construction. Mutual Life Ins. Co. v. Board of Assessors, 56 Mo. 510; State v. Fenly, 18 Mo. 445; 1 Elliott’s G-eneral Practice, sec. 189; State ex rel. v. Ellison, 267 Mo. 326. (3) The burden is on the proponents of an appeal bond to establish its sufficiency to the satisfaction of the court whose duty it is to pass upon it. 3 C. J. 1175 ; Hagerty v. Lierly, 109 Mo. App. 631. (4) An affidavit is inadmissible as evidence unless expressly authorized by statute. 2 Wigmore on Evidence, sec. 1384; Hudson v. Applegate, 87 Iowa, 605; Patterson v. Fagan, 38 Mo. 70; Hancock v. Whybark, 66 Mo. 672; Walsh v. Rogers, 13 How. 287; Pickering v. Townsend, 118 Ala. 351; Smith v. Feltz, 42 Ark. 355; Smith v. Weaver, 41 Pa. Super. 253; 2 Blackstone (Jones) p. 1983; 2 C. J. 373. (5) Rule 40 contravenes no law and is valid, and, as such, has the force and effect of law. Pelz v. Bollinger, 180 Mo. 252; Bank of Escondido v. Superior Court, 106 Cal. 43; Rigdon v. Ferguson, 172 Mo. 49; Brooks v. Boswell, 34 Mo. 474; 15 C. J. 904. (6) Mandamus does not ordinarily lie to control an inferior court iu the exercise of its judicial discretion. High on Extraordinary Legal Remedies (3 Ed.), p. 254; State ex rel. Hernán v. Fiad, 108 Mo. 614. (7) To pass upon the sufficiency of an appeal bond involves the exercise of judicial discretion, and unless it is charged and clearly shown by relators that the decision of the respondent is not in the exercise of good faith of the discretion vested in him, mandamus does not lie to compel him to accept the bond. State ex rel. Heckel v. Klein, 137 Mo. 673; State óx rel. Reifsnider v. Goldstein, 200 Mo. App. 60; Linderholn v. Walker, 102 Kan. 684, 171 Pac. 603; State ex rel. Hubbard v. Speer, 173 Pac. 955; United States ex rel. Beal v. Cox, 14 D. C. App. 368; 3 C. J. 1302. (8) The demurrer to the return admits all facts properly pleaded therein, inter alia that the proposed surety Smith has, prior to the hearing, become insolvent, and is hot sufficient to become surety on the appeal bond. State ex rel. Taylor v. Moss, 35 Mo. App. 441; Moses on Mandamus, p. 214; State ex rel. Witmer v. Conrad, 147 Mo. 654; State ex rel. Fitzpatrick v. Myers, 80 Mo. 601; 26 Cyc. 466.
   WALKER, C. J.

This is a proceeding by mandamus brought in this court to compel the respondent, a judge of the Circuit Court of the City of St. Louis, to file and consider an affidavit touching the qualifications as surety of the person therein named, on an appeal bond, and to require such court, if said bond is found otherwise sufficient, to approve same.

' In a judgment rendered in said circuit court in favor of one Duncan S. Werth and against relators and others, the relators appealed to this court, the amount of the appeal bond was fixed and time was given within which to submit testimony as to the sufficiency of the sureties. Within the time fixed the relators gave counsel for the plaintiff: notice that they would on a day named present to the court for its approval their appeal bond. Said notice contained the names of the proposed sureties, with their places of residence and vocations, in conformity with rule numbered forty of said circuit court, which is as follows:

“Rule 40. In case of appeal from this court, it shall be the duty of' any party in whose favor bond is to be given to examine the persons proposed as sureties or otherwise to satisfy himself of their responsibility. To this end the party offering such bond shall give the adverse party at least one day’s notice in writing of .the .time when the persons proposed as sureties, will be present in court for examination, and shall in.such notice state the names, residence and occupations of such persons. ’ ’

After the signing of said bond by the sureties and' the giving of said notice, but before the day fixed for. the presentation of the bond to the court, Stephen L. Smith, one of said sureties, became ill with an infectious disease, was removed to a hospital and could not be present in court at the time of the presentation of the appeal bond. Relators secured a sworn statement from him as to Ms age, residence and the description and value of his personal and real property over and above his liabilities. TMs affidavit was filed with the bond for the consideration of the court. An examination was made of the other two sureties .as required by Rule 40. The court declined to consider the affidavit of' the surety, Smith, as conforming to the requirements of said rule and held that the showing as to the property of the other two sureties over and above their liabilities did not authorize the approval of the bond, the amount of which had been fixed at $4000.

The discussion of other facts of more material relevance than the construction of the court rule quoted will suffice to determine the matter at issue. .In passing, it may not be inappropriate to say that while this rule, in its terms, is not violative of the Constitution or our code of procedure, where, within a reasonable exercise of the court’s discretion, another method than a literal conformity therewith will better' serve to .determine the pecuniary qualifications, of sureties, without lessening the integrity of the judgment, that course should be pursued; and no hard and fast adherence to the letter of the rule should regulate the examination of the trial court; but, while protecting the integrity of the judgment, it should see that the appellant is denied no opportunity to establish his right to the suspensive effect of a bond pending the appeal. In other words, that part of the rule requiring the personal presence of a proposed surety in court for examination should be held to be directory when such a holding will add to the opportunity of the appellant to secure a stay pending an appeal without proving inimical to the rights of the prevailing party. A rule should never be so interpreted or a law so construed as to work a denial of justice.

But, considering, as we premised, the more relevant facts, we find that the trial court carefully examined the other two sureties and found the aggregate amount of their property not sufficient to authorize an approval of the bond within the requirements of the statute (Sec. 2042, E. S. 1909). • •

That no injustice might be done to the appellants, the relators herein, we have examined the proof offered, including the affidavit to establish the pecuniary qualifications of the proposed surety, Smith. While the trial court rejected this testimony on account of the nature of same, which was a technical error, appellant was not thereby injured, as the proven value of this surety’s property, with that of the others, was insufficient to afford that protection to the plaintiff which the law contemplates to authorize an approval of the bond. Aside, therefore, from the error noted, which, for the reasons stated, may be disregarded, the exercise of the court’s discretionary power was necessary to a determination of the matter submitted, viz., the sufficiency of the sureties.

The statute (Sec. 2042) only defines the number of the sureties and fixes the amount of the bond, leaving the sufficiency of the former, so far as concerns their pecuniary qualifications, to the judgment and discretion of the trial court. Where, as here, that finding, after an oral examination of the sureties, is adverse to their sufficiency, we will not disturb the same, especially so where our review of the facts confirms the conclusion that the decision was a rightful one. Where discretion has been exercised by a court, as in the instant case, we have refused to afford relief in the manner here sought to be invoked except where there has been a palpably arbitrary exercise of the discretion in the very-face of the law and of the conceded facts. There is no room for the exception under the facts at bar. [State ex rel. Clark v. West, 272 Mo. l. c. 314 and cases; 26 Cyc. p. 217 and notes; 2: E. C. L. top page 116.]

Prom which it follows that our alternative writ should be quashed and it is so ordered.

All concur; Woodson, J., absent.