source: Caselaw Access Project

author: GANTT, C. J. LAMM, J.

license: Public Domain

text:
    THE STATE ex rel. SCOTT v. DIRCKX, County Clerk.
    In Banc,
    April 29, 1908.
    1. SHERIFF: Eligibility. A person who was elected sheriff in 1906 and is the present incumbent of the office, is eligible to be elected at the general election in 1908 and to hold the office for a term of four years from January 1st after such election.
    2. -: - — : Constitutional Amendment of 1906. The fact that the constitutional amendment adopted in 1906 fixed the sheriff’s term at four years and said he “shall be eligible only four years in any one period” does not make ineligible a person who was elected sheriff at the same general election at which said amendment was adopted and went into office in the following January thereafter and is now the incumbent of said office, although, if elected in 1908, he will be entitled to hold the office for four years more. By the very terms of the amendment (which repealed the old section which limited the sheriff’s tenure to two years), it is not to have actual operation and practical effect until the election in 1908.

      Held, by LAMM,, J., dissenting, that it makes no difference whether the term relator served was under the old constitutional provision or under the new, so long as it was under the one or the other, and so long as the two terms taken together make a continuous service contrary to either. In no ease can relator have a continuous service as sheriff longer than four years'.

      3. -: -: -: Retrospective. A settled rule of construction, applicable to constitutional and statutory provisions, is that, unless a different' intent is evident beyond reasonable question, they are to be construed as having a prospective operation only. The constitutional amendment of 1906, in saying, “There shall be elected by the qualified voters in each county on the first Tuesday after the first Monday in November, A. D. 1908, and thereafter every four years, a sheriff and coroner,” by express terms is given a prospective operation, and does not apply to sheriffs elected in 1906.
    4. -: ---: Future Sheriffs. The constitutional amendment of 1906 by its own terms confines the eligibility of a sheriff to those sheriffs to be elected in 1908 and those to be elected every four years thereafter.
    5. -: -: -: Public Policy. Various changes have been made in the fundamental law on the subject of the eligibility of sheriffs, by changes in the constitutions, and public policy on the subject is to be ascertained from the Constitution- as it is now, and not from what was provided in previous constitutions.

      Eeld, by LAMM, J., in a dissenting opinion, that the evil struck at by the amendment of 1906, was to put a stop to sheriffs being candidates for reelection while they were exercising the extraordinary responsibilities of the office, and that intent is thwarted by permitting a sheriff already in- office to be eligible for a longer term than he could have obtained under the former constitutional provision.
    6. -: -: -: -: Shortening Eligibility of Incumbents. While considering the public policy of the State in reference to the eligibility of a person now a sheriff to hold his office, after a reeleetion in 1908, for four years more, under the amendment of 1906, it is proper to consider also that under the Constitution prior to the amendment he could be elected to two terms of two years each in succession, and if he is not, under the amendment, eligible to reelection, sheriffs in many cases will be barred from holding more than one term of two years; and, as bearing on the question of public policy, it is also proper to consider that the amendment provides that sheriffs hereafter elected cannot succeed themselves.

      Eeld, by LAMM, J., that eligibility to office is not an inherent right of citizenship, and it could not have been the intendment of the amendment to give incumbents in the sheriff’s office an advantage over sheriffs preceding or succeeding them.
    7. —-: -: -: Exception by Construction. Where no exceptions aré made in terms, in a constitutional provision or statute, none will be made by mere implication or construction. Tbe constitutional amendment adopted in 1906 does not say that sheriffs elected in 1906 and in office at the November election in 1908 are ineligible to be elected in 1908 for a term of four years beginning in January, 1909, and the courts will not read any such exception into it.
    8. -: -: Refusal to File Declaration: Mandamus. Where the county clerk refuses to file the declaration of a candidate for the party nomination for a county office, the candidate has no other remedy to get his name on the party ticket except to bring mandamus to compel the officer to file and accept his declaration.
    Mandamus.
    Peremptory writ awarded.

      Silver & Brown for relator.
    The amendment of 1906 provides that there shall he elected by the qualified voters in each county on the first Tuesday next following the first Monday in 'November, A. D. 1908, and thereafter every four years, a sheriff and coroner. They (those elected in 1908) shall serve for four years and until their successors be duly elected and qualified, unless sooner removed for malfeasance in office. Before entering on the duties •of their offices, they (that is, those elected in 1908, and their successors in office) shall give security in the ■amount and in such manner as shall be prescribed by law, and they (the ones elected in 1908), and their successors shall be eligible only four years in any one period. The very language of the amendment shows that the persons to be elected in 1908 and their successors, and none other, were in the minds of the framers of the constitutional amendment. The amendment is wholly and exclusively prospective in its ehar■acter, and cannot be construed in any other way. For the foregoing and other reasons it is an error to say that the petitioner is holding his present term under the amendment of 190'6, because that amendment was •adopted before petitioner qualified on January 1, 1907; although the amendment was so adopted, it has had only potential, not an actual operation and effect. Obviously the petitioner is now holding under the old provision and old law under which he was elected; otherwise, he is merely an officer de facto. R. S. 1899, sec. 6982; State v. Kyle, 166 Mo., 287; Real v. State, 42 N. Y. 276. A law may be passed to take effect on the happening of a future event or contingency. State, etc., v. Wilcox, 45 Mo. 464; State, etc., v. Pond, 93 Mo. 625.

      Herbert 8. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.
    (1) “The established rules of construction applicable to statutes, are also applied to the construction of constitutions. ’ ’ 8 Cyc., 729; 6 Am. and Eng. Ency. Law, 921. (2) The amendment of a statute or constitution, by including a provision which had also been a part of the statute amended, or constitutional provision stricken out, is construed as remaining in force without a. break in its continuity. Lewis’ Sutherland on Stat. Const, sec. 237; Cooley’s Const. Lim., 96-7. (3) Eligibility to office is not a natural right inherent in a citizen, and it is not a grant or vested right, nor a property right. “A public elective office is a public agency which, barring constitutional inhibition, express or implied, may be abolished, curtailed or regulated by legislative enactment.” State ex rel. v. Sheppard, 192 Mo. 509;'State ex rel. v. Evans, 166 Mo. 347; State ex rel. v. Rackliffe, 164 Mo. 453; 6 Am. and Eng. Ency. Law, 328; Throop on Public Officers, sec. 19; Mechem’s Public Offices and Officers, sec. 64. (4) “If a statute or constitutional provision fixing or limiting the operation of an official term is ambiguous, that interpretation should be followed which limits the term to the shortest time,” 23 Am. and Eng. Ency. Law, 409; Judicial Term of Office, 114 N. O. 123; Wright v. Adams, 45 Tex. 134; Throop on Public Officers, sec. 308. And the same policy and reason are applicable in the case of ambiguity as to eligibility. (5) While it is not controverted that constitutions like statutes are construed as prospective in their operation, a contrary intent not appearing, it is also the law that a constitutional amendment takes effect from the time of its adoption. State v. Kyle, 166 Mo. 287; 6 Am. and Eng. Ency. Law, 909. The fact that by the amendment of 1906 the election at which the four-year term is to begin is that of 1908, does not militate against the contention that the said amendment has been in force ever since its adoption two years ago, and that all of the other provisions of said amendment, as to qualification, giving security, etc., have been in force and have applied to all appointments and elections to fill vacancies since that time, and the sheriffs elected in 1906, since said amendment has been in force, have, therefore, been holding their offices during that period under the said amendment. (6) The words “any period” and “any one period,” as used in the several constitutions of this State prescribing the conditions of eligibility or ineligibility for the office of sheriff, evidently ref erred to a continuous period of the time designated. 6 Words and Phrases Judicially Defined, 5302. (7) Persons appointed or elected to fill a vacancy in the office of sheriff since the adoption of the amendment in 1906 would be ineligible as candidates to succeed themselves but for the saving clause in section 11 of said article. Such sheriffs have held office during such unexpired term under said constitutional amendment, and not under the old provision which was stricken out before they entered upon the duties of their office. Tet, it is manifest that those who were elected in 1906 and are now in office, have been no less holding under the same constitutional provision during the same period as those appointed by the Grovernor or elected at a special election. (8) The amendment of 1906 prescribes a condition of ineligibility to the office of sheriff, viz: that he shall be eligible only four years in any one period.
   GANTT, C. J.

— This is a proceeding by the relator to obtain a peremptory writ of mandamus requiring the respondent as county clerk of Cole county to file the declaration of the relator as a candidate for the office of sheriff of said county in compliance with section 5 of an act of the 44th General Assembly entitled, “An Act to provide for party nominations by direct vote,” approved March 18, 1907, Laws of Missouri, 1907, page 263. An alternative writ of mandamus was awarded and service thereof waived and the county clerk filed his return thereto. The petition in substance states that the relator is a taxpayer, voter and citizen of Cole county, Missouri, and has been for four years past; that at the general election held on the first Tuesday after the first Monday of November, 1906, he was duly elected to the office of sheriff of Cole county for the full term of two years and until his successor should be elected and qualified; that thereafter he received a certificate to said office and duly qualified as the law required and has since discharged the duties of the said office. That prior to his election and entering upon the discharge of his duties as such sheriff on January the first, 1907, he had not held said office nor been an incumbent thereof; that at the time of the election at which relator was elected' sheriff of said county the following provision of the Constitution of 1875 of this State, to-wit, section 10 of article 9 thereof, was in force:

“Section 10. There shall be elected by the.qualified voters of each county, at the time and places of electing representatives, a shériff and coroner. They shall serve for two years, and until their successors be duly elected and qualified, unless sooner removed for malfeasance in office, and shall be eligible only four-years in any period of six. Before entering on the duties of their office, they shall give security in the amount, and in such manner as shall be prescribed by law. Whenever a county shall be hereafter established, the-Governor shall appoint a sheriff and a coroner therein, who shall continue in office until the next succeeding general election and until- their successors shall be duly elected and qualified. ’ ’

Relator then alleges that at the said general election held in November, 1906, the following amendment to the Constitution relating to the office of sheriff was adopted by the voters of this State:

“Amend by striking out all of section 10' of article 9 of the Constitution of the State of Missouri and adopt in lieu thereof a new section to be known as section 10,. article 9, of the said Constitution and to be in words and figures as follows:

“Section 10. There shall be elected by the qualified voters in each county on the first Tuesday following the first Monday in November, A. D. 1908, and thereafter every four years, a sheriff and coroner. They shall serve for four years and until their successors be duly elected and qualified, unless sooner removed for malfeasance in office. Before entering on the duties of their office they shall give security in the-amount and in such manner as shall be prescribed by law and shall be eligible only four years in any one period. Whenever a. county shall be hereafter established, the Governor shall appoint the sheriff and coroner therein, who shall continue in office until the next succeeding general election and until their successors, shall be duly elected and qualified.”

That by section 5. of the Act of March 18,1907, candidates at said primary election for nomination for county offices shall at least sixty days before the date of said primary election file in the office of the connty clerk of their respective eonntie-s a declaration of their condidacy in which each candidate for nomination for a county office shall state “his full name and residence,, the office for which he proposes as a candidate and the party upon whose ticket he is to be a candidate.” That said act provides that said declaration so' made shall be accepted and filed by the proper official, that is, by the county clerk, in lieu of all other nomination papers required by said act. That relator desiring and intending to become a candidate at the primary election to be held on the first Tuesday in August, 1908,. for the office of sheriff of Cole county, did on March 12, 1908, present to the respondent, the county clerk of Cole county, his declaration in writing of his candidacy at said primary election for the office of sheriff of Cole county, and did request the respondent to- accept the same and file it in his office; that respondent refused to accept said declaration of relator’s candidacy for said office of sheriff and did refuse to file the same, assigning as a reason for his said action that relator having been elected sheriff of Cole county at the general election held in this State in 1906, and being the present incumbent of said office, is not eligible to said office or competent to hold the same for the term of four years prescribed by the amendment to the Constitution relating to the office of sheriff and adopted at the general election in 1906 and hereinbefore fully set. out. That the refusal of respondent to accept said declaration of relator’s candidacy and to file the same in his said office of county clerk is wrongful and in contravention of relator’s rights in the premises and of the-duty of respondent as county clerk under the provisions of the said act of the General Assembly of this State entitled, “An Act to provide for party nominations by direct vote, ’ ’ approved March 18,1907. Wherefore, he prays for writ of mandamus requiring respondent to accept and file relator’s declaration of Ms said candidacy for sheriff as aforesaid.

In his return the respondent demurs to the petition of relator and assigns two grounds of demurrer, to-wit: First. Said petition and alternative writ fail to state facts sufficient to constitute a cause of action. Second. Said petition and alternative writ and the matters and things therein stated and set forth are not sufficient in law and equity to entitle relator to the relief asked for in said petition or to authorize the issuing of said writ of mandamus.

The demurrer admits all the questions of fact in regard to the respective qualifications of the relator and respondent and the regularity of the declaration of the relator’s candidacy, so that the sole question for our consideration at this time is whether the relator, having been elected sheriff of Cole county at the general election held in this State in November, 1906, and being the present incumbent of that office, is precluded, by the terms of the Constitutional amendment of 1906, in relation to the office of sheriff and known as section 10 of "article 9 of the Constitution of this State, from holding the office as his own successor for the term of four years provided by said amendment, to be filled at the general election to be held in this State in November, 1908.

If relator will be eligible to the office of sheriff to be filled at the nest general election to be held in November, 1908, he is entitled to a peremptory writ of mandamus requiring the respondent clerk to accept and file his declaration of candidacy for the office of sheriff of Cole county, as he has no other adequate remedy.

The respondent has refused to accept and file said declaration for the sole reason that the relator Scott is not eligible to the said office because relator was elected sheriff of Cole county in 1906 and duly qualified as such and is now the incumbent of said office and is therefore not eligible or competent to hold the same for the succeeding term of four years prescribed by the constitutional amendment relating to the office of sheriff, adopted at the general election in the year 1906. In other words, respondent insists that the constitutional amendment of 1906 prescribes a condition of ineligibility to the office of sheriff, to-wit, that “he shall be eligible only four years in any one period,” which applies to the case of the relator, and to permit him to be elected and hold such office for the four years after the general election in 1908 would allow him to hold the said office of sheriff for six years continuously in ■direct violation of the express mandate of the organic law of this State, and that in computing the time, the two years which relator has and will have held said office from the election in 1906 to the election in 1908 must he construed as a part of the period during which he can only he eligible for four years. On the other hand, relator contends that, inasmuch as he was elected under the provisions of .section 10 of article 9' of the 'Constitution of 1875, and said section was repealed by the amendment of 1906, and said amendment was and is wholly prospective in its purpose, it has no application to his case and he is eligible. To which contention the Attorney-General replies that it is not a question •of the prospective operation of the amendment but is •one of eligibility, a question of fact; whether the cause •of the ineligibility arose before or after the adoption •of the amendment, he contends is immaterial.

The settled rule of construction in this State, applicable alike to the constitutional and statutory provisions, is that, unless a different intent is evident beyond reasonable question, they are to be construed as having a prospective operation only. [State ex rel. v. Greer, 78 Mo. l. c. 190; State ex rel. v. Frazier, 98 Mo. 426; Leete v. Bank, 141 Mo. 574; Shields v. Johnson County, 144 Mo. 76; Cooley on Constitutional Lim. (6 Ed.), page 77; Shreveport v. Cole, 129 U. S. 36.] In the instant case is there anything in the Constitutional amendment relating to sheriffs and the term of their office that indicates it was the intention that it should have a retrospective effect? While the amendment became a part of the Constitution of this State from the time of the canvass of the vote thereon by the Secretary of State in 1906, by its terms it was not to have actual operation and practical effect until the election in 1908, the first time when an election for sheriff was to be held under its provisions. That a statute or constitutional provision may have a potential existence, but which will not go into actual operation until a future time, is familiar law. [State ex rel. v. Wilcox, 45 Mo. l. c. 464; State ex rel. v. Pond, 93 Mo. l. c. 625; Ex parte Snyder, 64 Mo. l. c. 61.] Having special regard to the provision itself, it will be noted that it provides: “There shall be elected by the qualified voters in each county on the first Tuesday after the first Monday in November, A. D. 1908, and thereafter every four years, a sheriff and coroner.” While it is contended by the Attorney-General that the relator was holding his office under the amendment from the date of his qualification on January 1st, 1907, we think it is obvious that he was holding under old provision under which he was elected, otherwise he would have no title to his office for the two years prior to the election of 1908, because the amendment of 1906 makes no provision whatever for the incumbency of the office of sheriff from 1906 to 1908. After providing for an election, by the qualified voters in each county, of a sheriff, on the first Tuesday following the first Monday in November, 1908, and thereafter every four years, the amendment proceeds, “They shall serve for four years and until their successors be duly elected and qualified. ’ ’ Unquestionably, “they” in this sentence refers to those elected in 1908; the amendment then continues, “Before entering on the duties of their office, they (that is to* say, those elected in 1908, and their successors in office) shall give security in the amount and in the manner as shall be prescribed by law, and shall be eligible only four years in any one period,” evidently again referring to those elected in 1908, and their successors.

But for the unequivocal language of the amendment itself there would be great force in the argument that the provision limiting the term of a sheriff to four years is one of eligibility, which might refer to the past incumbency of the office as well as the future, but when it is borne in mind that the amendment of 1906 leaves nothing to implication but expressly repeals the former constitutional provision, to-wit, section 10 of article 9, of the Constitution of 1875*, it seems to* us that it marks a departure in the law and creates a new rule for the future. Much has been said in regard to the long established public policy of the State in fixing in former constitutions the limitation of the term of a sheriff to four years in certain specified periods; thus, in the Constitution of 1865, section 22, article 5, it is provided that “a sheriff shall be eligible four years in any period of eight years,” and as we have already seen in the Constitution of 1875 he was limited to a term of four years in any six years. While “public policy has been declared to be the handmaiden of sound legal exposition” it has also been declared to be “a very unruly horse.” Judge Story, in his work on Contracts (2 Ed.), volume 1, section 546, says: “It has never been defined by the courts, but has been left loose and free of definition, in the same manner as fraud. This rule may, however, be safely laid down, that wherever any contract conflicts with the morals of the time, and contravenes any established interest of society, it is void, as being against public policy.” [Kitchen v. Greenabaum, 61 Mo. 110.] On the other hand, it has been said by courts of great ability, “When we speak of the public policy of the State we mean the law of the State whether found in the Constitution, the statute or judicial records.” [People v. Hawkins, 157 N. Y. l. c. 12; Vidal v. Girard’s Exrs., 2 How. (U. S.) 127; Dammert v. Osborn, 140 N. Y. l. c. 40.] Having in mind, then, these various changes of our fundamental law on the subject of sheriffs, it is obvious, we think, the public policy of the State has changed from time to time, and we must look to the Constitution itself at the present time to ascertain what the public policy is. As we have seen the language of the amendment ex vi termini confines the ineligibility of a sheriff to those sheriffs to be elected in November, 1908, and those to be elected every four years thereafter. While on the one hand, it may be argued with much plausibility that it was the purpose of the people that no sheriff should hold over four years continuously in any period of time, it may with equal force, we think, be argued that as the fundamental law was being changed, it was deemed best to have it operate entirely in the future, and not render a sheriff, who' has held only one term of two years, ineligible to be elected under its provisions and thus deprive him of the right of re-election, which he would have had under the Constitution before its amendment, inasmuch as his- election under the new amendment would apply only, to those who had held the office of sheriff at the time of the adoption of the amendment, and in the future would work absolute equality to all sheriffs thereafter elected. But, however that may be, it must be borne in mind that in endeavoring to reach the meaning of the provision under consideration, there is a well-settled rule of interpretation, to-wit, “Where no exceptions are made in terms, none will be made by mere'implication or construction. ” [Rhode Island v. Mass., 12 Peters (U. S.) l. c. 722.] This rule of construction has often been applied in this State. [Rogers v. Brown, 61 Mo. l. c. 194; State ex rel. v. Fisher, 119 Mo. 344, l. c. 351.] In Dwarris on Statutes, 199, 200, it is said: “Words cannot be inserted; ‘every day,’ said Patterson, J., in a late case, ‘I see the necessity-of not importing into statutes words which are not to be found there. Such a mode of interpretation only gives occasion to endless difficulties.’ In Lamond v. Eiffe, 3 Q. B. Rep. 910, Lord Denman said, ‘We are required to add some arbitrary words to the section, which would exclude us from acting in certain cases. We cannot introduce any such qualifications ; and I cannot help thinking that the introduction of qualifying words in the interpretation of statutes is frequently a.great reproach to the law. None of the distinctions suggested are contained in the plain words of the act; and we cannot qualify them by any arbitrary introductions.’ So, in Everett v. Wells, 2 Scott’s N. Rep. 531, Tindal, C. J., said, ‘It is the duty of all courts to confine themselves to the words of the Legislature, nothing adding thereto, nothing diminishing. We must not import into an act a condition or qualification which we do not find there.’ ”

While, therefore, holding that the amendment does not render a sheriff, who has held a term under section 10 of article 9 of the Constitution of 1875 immediately before the adoption of the amendment of 1906, ineligible to the office of sheriff to be filled at the election in 1908, and thus enable him to hold.continuously for more, than four years, after all this is but an incident of the change from the Constitution as it was in 1875 to the provision as it exists since the amendment of 1906, and this must have been evident to the author of the amendment and could have readily been avoided by inserting a proviso that sheriffs who had served one or two regular terms should not be eligible to the office at the election in 1908. But the fact that no such provision was made in the amendment supports our conclusion that such was not the intention of the framers of this amendment nor of the people when they adopted it. Our conclusion is that the relator is eligible to the office of sheriff to be filled at the general election in November next and is not precluded by the amendment in regard to sheriffs, adopted in 1906 and known as section 10 of article 9 of the Constitution, and accordingly he is entitled to a peremptory writ of mandamus directing the respondent to accept and file his declaration of his candidacy for said office, and it is so ordered.

Burgess, Valliant, Fox, Graves and Woodson, JJ.} concur; Lamm, J., dissents.

DISSENTING- OPINION.

LAMM, J.

— Under our first Constitution, sheriffs were “ineligible four years in any period of eight years.” [Const. 1820; art. 4, sec. 23.]

Under that of 1865, sheriffs were “ineligible four years in any period of eight years.” [Const. 1865, art. 5, sec. 22.]

Under that of 1875, sheriffs were “eligible only four years in any period of six.” [Const.' 1875, art. 9', sec. 10.]

Under each of said constitutions the term of office of sheriffs was two years, and sheriffs in Missouri have always been on the dignified plane of constitutional officers, constitutionally regulated.

By an amendment in 1906, section 10 of article 9, supra, was stricken out and a new section adopted which, so far as material, reads:

“Section 10. There shall be elected by the qualified voters in each county on the first Tuesday next following the first Monday in November, A. D., 1908, and thereafter every four years, a sheriff and coroner. They shall serve for four years and until their successors be duly elected and qualified, unless sooner removed for malfeasance in office. Before entering on the duties of their office, they shall give security in the amount and in such manner as shall be prescribed by law and shall he eligible only four years in any one period.”

The constitutional provisions now in force relating to sheriffs are section 10, supra (i. e., the amendment of 1906), and section 11 of article 9 of the Constitution of 1875, relating to vacancies, the last clause of which reads: “No person elected or appointed to fill a vacancy in either of said offices [sheriff or coroner] shall thereby be rendered ineligible for the succeeding term.”

Relator was elected sheriff of Cole county at the same general election in November, 1906, adopting section 10, supra, and repealing the old section 10. Having qualified, he took office on January 1st, 1907. The question here is: Is he eligible to a term of four years more, making an official incumbency of six consecutive years in the office of sheriff? Indeed under the construction given to the Constitution by my learned brother Gantt, concurred in by five of the brethren, it is a matter of no consequence whatever whether he held his term of office for only two years, or whether he held four years in the preceding six. In other words, the argument runs that the restrictions of the old Constitution no longer amount to anything, and; old things having passed away and all things having become new, a sheriff, ineligible under the old was made eligible by the new provision, and may thus serve eight consecutive years in a pinch.

I do not concur in that interpretation of the Constitution and put my non-concurrence on the following grounds:

(a.) Section 10, article 9 (the amendment), must be read in connection with old section 11 of the same article, which, was not repealed but remains live law. The two sections, the new and the old, must be made to dove-tail into each other without joint or seam if possible in order to make a harmonious and sensible fundamental law. Now, by said section 11 it is provided that a sheriff who is elected or appointed to fill a vacancy shall not (by that fact) be rendered ineligible for a succeeding term. In this condition of things,, by a familiar principle of construction, the maxim expressio unius, a maxim peculiarly applicable to the-interpretation of constitutional provisions (Henderson v. Koenig, 168 Mo. l. c. 369), should be held to apply— i. e., by pointing out and including the term of a vacancy filled by appointment or election as not constituting an element of ineligibility for a succeeding term, it should be held that any term not coming within the designation of filling a vacancy does constitute an element of ineligibility where by adding two terms you have more than “four years in any one period.’’

(b) So, too, I am unable to perceive that it makes any difference whether the term relator served was under the old constitutional provision or under the new, so long as it was under one or the other, and so long as the two terms taken together make a continuous-service contrary to either. The question is one of eligibility and to my mind how the fact of ineligibility arose is wholly beside the case so- long as it actually exists.

(c) A constitutional amendment is merely a provision of paramount law — -a plebiscitum — a law initiated by the General Assembly and adopted by the people by way of referendum. Rules of constitutional construction do not essentially differ from rules of statutory construction [8 Cyc. 729.] The object of construing either statutes or Constitution, in order to do* refined and exalted justice, is to discern the intendment of the law and enforce that intendment. To get at that end it is trite doctrine that we should consider the former state of the law, the new provision, the evil sought to he removed, as well as the remedy provided, and so construe the law as to further the remedy and retard the evil.

In Hey don’s case, 3 Coke 18, the rule was quaintly and strongly put in this way: ‘ ‘ That for the sure and true interpretation of all statutes in general (he they penal or beneficial, restrictive or enlarging of the common law,) four things are to he discerned and considered : 1st. What was the common law before the making of the act. 2nd. What was the mischief and defect for which the common law did not provide. 3rd. What remedy the parliament hath resolved and appointed to cure the disease of the commonwealth. And, 4th. The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief .... and to add force and life to the cure and remedy, according to the true intendment of the makers of the act, pro bono publico.”

Dropping the phrase “common law” and substituting for that phrase the word “constitution,” we may paraphrase Sir Edward Coke’s rule and ask (1) what was the provision of the Constitution in the particulars in hand before the amendment? (2) What was the mischief and defect for which the Constitution did not provide? (3) What remedy did the people resolve and appoint to cure the disease? (4) And what was the true reason for the remedy?. When true answers to these questions are discerned, it would seem to be our bounden duty to make such construction as shall, without doing violence to the language employed in the Constitution, suppress the mischief and advance the remedy.

What were the provisions of the Constitution in the particulars in hand before the amendment of 1906? Those provisions have been set forth and are in no wise dark. In every constitution since Missouri has been a State there has been an express, definite limitation on the continuous service of a sheriff in office for more than four years in six. It was not said that every man shall serve as sheriff four years in six, but that no man shall serve more. In the two earlier the limit was four years in eight, but as the greater includes the less, so eight includes six, therefore under the two earlier, as in that of 1875, a continuous service of more than four years in six would have been in violation of those constitutions. What was the mischief struck at by the amendment of 1906 ? Did the framers of the act and the people adopting that act mean to lengthen the possible continuous service of any sheriff? Not at all. To the contrary, the amendment ex vi termini is an-interdiction on a continuous official term of more than font years, precisely as it was before. Obviously the mis - chief struck at was to do away with sheriffs running for re-election while occupying official terms and armed with official power as such, with the proviso that any term because of a mere vacancy was not an element of ineligibility.

The question has valuable historical side-lights showing a settled public policy (not only of our own constitutions but of the common law) in a rooted jealousy by the people of long official terms for sheriffs since the day of Alfred the Great. For instance, the sheriff at common law did the king’s business in the county. Anciently, in some counties, the office of sheriff was hereditary, but it was provided as to others “that the commons might choose such as would not be a burden to them,” and Blackstone points out that “sheriffs, by. virtue of several old statutes, are to continue in their office no longer than one year. ’’ He was the keeper of the king’s peace, the first man in the county, and superior in rank to any nobleman therein, during his office. He had power to apprehend and commit to prison all persons who broke the peace, or attempted to break it; and might bind any one in recognizance to keep the king’s peace. He was bound eco officio to pursue and take all traitors, murderers, felons and other misdoers and commit them to jail for safe custody. He was also to defend his county against any of the king’s enemies when they came into the land, and for this purpose as well as for keeping the peace and pursuing felons he might command all male inhabitants of his county between, certain ages to attend him as a posse comitatus. In his ministerial capacity the sheriff was bound to execute all process issuing from the king’s courts of justice. In the commencement of a civil cause he was to serve the writ, to arrest and to take bail; when the cause came to trial he summoned and returned the jury; when determined, he saw the judgment of the court carried into execution. In criminal matters he also arrested and imprisoned. He returned the jury, had the custody of the delinquent, and executed the sentence of the court though it extended to death itself. [1 Blackstone, pp. 342-3-4] He is now, as at common law, the chief citizen of the county, having in his keeping as a sacred charge, the public weal. For example: Many of these common law duties still attend the office of sheriff. He is now defined to be: “A county officer representing the executive or administrative power of the State within his county.” [25 Am. and Eng. Ency. Law (2 Ed.), 662.]

By section 10044, Revised Statutes 1899, he is conservator of the peace witbin his county and. is commanded to cause all offenders against the law, in his view, to enter into recognizance, with security, to keep the peace and to appear at the next term of the circuit court of the county, and to commit to jail in cases of failure to give such recognizance. By section 10046-he is required to quell and suppress assaults and batteries, riots, routs, affrays and insurrections, to apprehend and commit to jail all felons and traitors and execute all process directed to him by legal authority. By other provisions he summons jurors, grand and. petit, attends courts as the ministerial arm of the court,, levies executions and summons witnesses.

'With such power in his hands to bind or loose, to-blink or see, the amendment of 1906 left him eligible-to hold four consecutive years of office but struck down the mischief of his running for re-election. It cast all motes and beams from his official eye and left him an. eye clear and single to his duty — an excellent eye for a sheriff to have. Behold, then, the mischief and the remedy. The mischief was in his canvassing for votes to secure a re-election tempting him, peradventure, beyond his strength, to misuse his official power or blink official duty. The remedy was to do away with biennial elections to the office and leave him four years as one term, not six years in two terms, as here.

The opinion of my brother it seems to me neither advances the remedy nor retards the mischief. Such interpretation is equivalent to adding a proviso to the-amendment not there, to-wit: “Provided that sheriffs, ineligible under the old Constitution because of length of service are made eligible by the new;” or a pro vis o-to this effect: “Provided that all sheriffs now in office whether for the first or second term shall be eligible to re-election in the general election of 1908 for another term of four years.”

(d) Could it possibly have been within the intendment of that act to give' so singular an advantage to the then incumbents of the office? — an advantage denied for nearly- a hundred years to all former sheriffs and denied to all that come after the present official termt If that be so then the amendment did not disclose all its purpose. It was a Greek gift — a Wooden Horse with mischief in its bowels. It should have been written under the caption: “An Amendment to the State Constitution making the official Term of the Sheriff Four Years, and Removing all Restrictions on the Present Incumbents of that Office Succeeding, themselves. ”

It cannot be that any hardship to those persons who were elected to the office in the general election of 1906 was within the purview of the amendment; because the grim humor of the situation is that those persons voluntarily ran for the office at the time the amendment was submitted and took their chances of its being adopted. All they have to do is to wait four years and run again if they choose. Eligibility to office is not an inherent right of citizenship, but is regulated by law.

(e) Again: the learned Attorney-General argues that “it is a settled principle of law, applicable alike to constitutions and statutes, that where an amendment is made which, in addition to the new and amendatory features, contains provisions which were also in the law superseded, the provisions common to both shall be construed as remaining in force, without break in continuity, in the transition from the old to the new.” I take that proposition as sound law. [Cooley on Const. Lim. (7 Ed.), pp. 96-7.] Any other makes a gap in the law — a chaotic condition never to arise by construction, unless that interpretation be inevitable. It involves the idea that there was a space of time between 1906 and 1908 when there was no constitutional provision operative. Applying the above proposition to this case we find that the old constitution did not allow more than four years continuous service. We find the new contains the same provision. Hence, the provision being common to both continued in force during the transition period. Being in force at all times, I cannot understand why the interpretation placed upon the Constitution by nay brother is not in the face of both its spirit and letter; for the construction is that the present incumbents of the sheriff’s office may have six consecutive years — nay, possibly eight. Whereas the construction suggested by the Attorney-General may allow them four years in the past, and, at most, denies but two years of a possible four, with a rest from official cares to be followed by eligibility at the end of such rest. The law was passed for the benefit of the people, not of the sheriffs, and the welfare of the people should be the touchstone of interpretation; for,-observe, the welfare of the people is either the supreme law or we should get another motto for our great seal.

(f) In Wright v. Adams, 45 Tex. l. c. 140, Moore, J., well said: “It is believed, moreover, to be a sound rule of construction which holds, when the duration or term of office which is filled by popular election is a question of doubt or uncertainty, that the interpretation is to be followed which limits it to the shortest time, and returns to the people at the earliest period the power and authority to refill it.” See, also, “Opinion of the Judges,” 114 N. C. (Appendix) loc. cit. 929; Throop’s Public Officers, section 308. Therefore, even if we were to hold (as we may) that the amendment left the matter somewhat uncertain and ambiguous, we ought further to hold as indicated in other paragraphs of this opinion, and thus solve the doubt in favor of the shortest term under the doctrine of Wright v. Adams, supra.

In my opinion the final writ should not go.


author: GRAVES, J.

text:
    THE STATE ex rel. SKRAINKA CONSTRUCTION COMPANY v. CITY OF ST. LOUIS et al.
    In Banc,
    May 9, 1908.
    1. CHARTER PROVISIONS: Assessment of Lots Full Length and Half Way: Constitutional. Even if the charter of St. Louis permitted some lots abutting on. the improved streets to be assessed half way of their depth, and others in the same subdivision and bearing the same relation to the improvement to be assessed their full depth, it would not, on that account, be unconstitutional.
    2. MANDAMUS: To Cancel Tax Bills. A mandamus, brought in the Supreme Court, to cancel tax bills issued in payment of a public improvement against a district improperly defined, and to compel the issuance of new tax bills against one' properly defined, is an appropriate remedy.
    3. CHARTER: Improvement of Street: Assessment of District: Lot: Subdivisions: Plat. The question in this case is how is a benefit assessment district in St. Louis for a street improvement to be bounded. The charter provides: “A line shall be drawn midway between the street to be improved and the next parallel or converging street .on each side of the street to be improved, which line shall be the boundary of the district, ex7 cept as hereinafter provided, viz.: If the property adjoining the street to be improved is divided into lots, the district line shall be drawn so as to include the entire depth of all lots fronting on the street to be improved. . . . The word ‘lot’ as used in this section shall be held to mean the lot as shown by the recorded plat, or if the owners of the lots have disregarded the lots as platted, and have treated two or more lots or fractions thereof as one lot, then the whole parcel of ground or lots so treated as one shall be regarded as a lot for the purposes hereof.” The lots by the recorded plat extended from the improved street to the next parallel street. Reid,

    1. The general plan of establishing the district is. to bound it by a line midway between the street to be improved and the next parallel street.
    2. Where the lot as platted is owned by one person and all is used together, with the chief improvements fronting the street to be improved, the district line should be so drawn as to include the whole of such lot; that is, the district’s boundary line should be the next parallel street.

      3. The word “lot” as used in the charter does not necessarily mean a lot as platted. • The charter expressly recognizes that a platted lot may be changed by use, and what can be done by use can be done by deed. And use or deed does away with platted lines for lots, and makes the segregated or consolidated parts independent lots for the purposes of assessment.
    4. Where the owners of platted lots extending through from street to street have sold parts thereof to the midway line, the parts fronting on the street to be improved should be included in the assessment district, and the balance excluded.
    Mandamus.
    Peremptory writ denied.

      Walther S Muench for relator.
    (1) It was the intention of the framers of the ■amended charter of St. Louis that the boundary of the taxing district should be placed at a line midway between the street improved and the next parallel street, wherever that is practicable. Collier v. Western P. & 'S. Co., 180 Mo. 283. (2) The exception that if the property adjoining the street to be improved is divided into lots the district shall be so drawn as to include the •entire depth of all lots .fronting on the street to be improved, was not intended to apply where the lot fronting the improvement has a depth through to the next parallel street. (3) If the exception in the charter •does apply to platted lots fronting the improvement and extending to the next parallel street, then it must apply to all such lots fronting the improvement. The division of- a platted lot in ownership or usage cannot except it from the charter definition of the term “lot.” State ex rel. v. City, 183 Mo. 230; Collier v. Western P. & S. Co., 180 Mo. 283. (4) The intention of the framers of the law should be carried out, even though contrary to the strict letter of the law, and where a single section would conflict with the entire scope or manifest intent of the law, the literal construction of such section should be departed from in an effort to harmonize it with the other provisions of the act. Cole v. Skrainka, 105 Mo. 303; State ex rel. v. Hernán, 70 Mo. 441; State ex rel. v. Talty, 166 Mo. 529. (5) It is proper to consider the effect and consequences of'a proposed interpretation of law to ascertain what is probably its true intent. Bowers v. Smith, 111 Mo. 45; Lamar v. City, 128 Mo. 188; Chouteau v. Railroad, 122 Mo. 375; State ex rel. v. Slover,126 Mo. 652. (6) Taxation, whether general or special, must be uniform. Independence v. Gates, 110 Mo. 374; K. C. Grading Co. v. Holden, 32 Mo. App. 490; Iialpin v. Campbell, 71 Mo. 493. (7) "Where a special tax results in inequality or injustice, every question of doubtful construction must be resolved against the tax. Halpin v. Campbell, 71 Mo. 493; Verdin v. City, 131 Mo. 26.

      Charles W. Bates and David Goldsmith for- respondents.
    (1) The first question is whether the lots which were not changed by sale or use after they were platted, but which still remained as originally platted, and which admittedly fronted on Lee avenue, were properly assessed for their entire depth. This question is disposed of by the express provisions of the charter and the direct adjudications of this court. Lots in use as originally platted must be assessed to their entire depth. Collier v. "Western, etc., Co., 180 Mo. 362; Meier v. St. Louis, 180 Mo. 391; State ex re-1, v. St. Louis, 183 Mo. 230. (2) Lots which, as originally platted, and also as now used, extend beyond the midway line, must be assessed for their entire depth. Collier v. "Western, etc., Co., 180 Mo. 386; Asphalt Co. v. Haeussler, 100 S. "W. 14. (3-) Assessments for local improvements must be made against each lot separately. Fowler v. St. Joseph, 37 Mo. 238; Kemper v. King, 11 Mo. App. 126; Wolfort v. St. Louis, 115 Mo. 144. (4) The charter definition constitutes merely a prima-facie definition, and the word “lot” as used in the charter provision under consideration must he interpreted according to the ordinary definition of the word; and in the definition and application of the word the use to which land is put overrides divisional lines established by plats. Fitzgerald v. Thomas, 61 Mo. 500; Chouteau v. Thompson, 2 Ohio St. 123; Chester v. Eyre, 181 Pa. St. 642; Lax v. Peterson, 42 Minn. 214; Pitz v. Kullingsworth, 20 Or. 432; Bohan v. Ozaukee Co., 88 Wis.. 498.
   GRAVES, J.

— This is an original action by mandamus, the general purpose of which is to require the city of St. Louis, the Board of Public Improvements of said city and the City Comptroller, to cancel certain tax bills which were issued to relator in payment of work done and material furnished in the reconstruction of a portion of Lee avenue in said city. The alternative writ was issued and return duly made, and the questions involved are ones which appear from these pleadings.

From the alternative writ it appears that the relator was the contractor for reconstructing a portion of Lee avenue in the city of St. Louis. That an ordinance authorizing said improvement had been duly passed, which ordinance is fully set out in the writ, but it is not necessary to set it out here, as the validity thereof is unquestioned. That relator had done the work and tax bills to pay therefor had been issued, but relator avers, that the taxing district was not properly laid out and defined, and that thereby such tax bills are void, and he desires the cancellation thereof, and the reissuanoe of the same after a properly defined district has been made. The charges as to the illegality of. the taxing district are couched in this language:

“That the assessment district for said work, upon which said special tax bills were issued, was not establisted in accordance with the provisions of the charter of said city and amendment thereof, in the following respects:

“That the total cost of said improvement of Lee avenne under the said ordinance amounted to $35,-026.19, of which one-fourth, to-wit, $8,756.57, has been assessed and made chargeable against the property fronting on the improvement on Lee avenue and three-fourths of said amount, to-wit, $26,269.62, has been assessed and made chargeable against the area of a district erroneously established by the said city and which district, so erroneously established, contains an area of 1,267,936 square feet. That the said assessment district (upon which said special tax bills were issued) was not established in accordance with the provisions of the charter of the said city of St. Louis in this:

‘ ‘ 1. The property of the north side of said Lee avenue, throughout the length of said improvement, is situated in the McCune and Yandeventer addition to St. Louis, a plat of which subdivision was duly and legally certified and filed in the office of the Recorder of Deeds of the city of St; Louis on the 4th day of June, 1867, and is recorded in the office of the said Recorder of Deeds in plat book No. 7 at page 61. That in said recorded plat of said subdivision, the street bounding the subdivision on the south is designated as ‘Moore’ street. That subsequently by an ordinance of the said city of St. Louis, duly enacted and approved, the name of said street was changed to Lee avenue and is the street improved as, aforesaid. That the names of the streets designated in said plat as ‘Bryan,’ ‘O’Fallon’ and ‘Carolina’ avenues have since, by duly enacted and approved ordinances of the city of St. Louis,, been changed to ‘Prairie,’ ‘Warne’ and ‘Fair’ avenues, respectively. That block number one of said subdivision is also known as City Block number 2488, block number two as City Block number 3305, block number three as City blocks numbered 3577 and 3578, block number four as City Block number 3576 and block number five as City Block number 3575. That the lots in blocks three, four and five of said subdivision (City blocks 3578, 3577, 3576, 3575) as laid out on said plat, front on said Moore street (now Lee avenue) and have a depth southwardly of 217.17 feet. That in said plat the lots in block three of said addition are bounded on the north by a strip of land eight feet and four inches in width, and the lots in blocks four and five of said addition by a strip of land one foot wide, the said strip being designated upon the said plat and in the certifícale appended thereto as being reserved for public use for street purposes whenever the owners of the property adjoining the strip on the north should dedicate an additional strip thirty feet in width off the south line of their property, the whole to be used as a public street, and the said reserved strip to be then dedicated for street purposes. That the adjoining property on the north of the said blocks of said subdivision was thereafter dedicated for a street, and by ordinance of said city of St. Louis, duly enacted and approved, a public-street having a width of sixty feet, and known as Pen-rose street, was opened and established along the northern boundary of the lots in said subdivision, and that after the establishment of said street said lots as platted ran from Lee avenue to Penrose street. That the said Penrose street is the next parallel street north of said Lee avenue, the- street improved. A copy of said recorded plat of said subdivision is hereto attached, marked Exhibit A, and made part hereof. That in the said blocks three, four and five of said subdivision, otherwise known as City blocks numbers 3578, 3.577, 3576 and 3575, respectively, the said taxing- district line was placed at the northern boundary line of lots four, five, six, twelve, thirteen and western half of lot eleven in City block 3575, lots- three, four, seven, eight, twelve and western half of lot eleven in City block 3576, and lots three, four, five, eight, nine, thirteen, fifteen, sixteen, eighteen and twenty in blocks 3577 and 3578', said northern boundary line of said lots being the southern line of said Penrose street; that is to say, the said lots have been assessed their entire depth from Lee avenue,, the said improved street, to Penrose street, the next parallel street to the north. That the remaining lots in said blocks (except lots one and two in block 3578) have been assessed from Lee avenue to a line midway between said Lee avenue and said Penrose street. That all of said lots in the said blocks are in the same relative position to th.e street improved. That the said lots which have been assessed their full depth are either vacant or improved by dwelling buildings erected on' the Lee avenue front, and have no improvements on Penrose street other than sheds, stables or other outbuildings used in connection with the dwelling buildings erected on Lee avenue. All of the remaining lots in the said blocks of said subdivision, which have been assessed only to the midway line (except lot five in block 3576 and lot three in block 3578) are improved by a dwelling building fronting on Lee avenue and another such building fronting on Penrose street, and half of the lot, as platted, used in connection with each building, or the ownership of .the lot has been divided by a sale of half of the lot, that is, one person owns part of a lot with a Lee avenue front by a depth to the midway line and another person owns the remainder of the lot.

“2. On the south side of Lee avenue, the street improved, City blocks 1928, 1929 and 3304 are located in Hull’s subdivision, a plat of which subdivision was properly certified and duly filed in the office of Recorder of Deeds of the city of St. Louis in plat book four, page seventy. That in block 1927, lots 38, 39, 40’ and 41 and in block 3304, lots 27, 28, 29 and 30 as platted, have a depth of 272 feet and 7-8 inches from Lee avenue to an alley running east and west in said blocks. That the next parallel street south of Lee avenue is Kossuth avenue, and the midway line between Lee avenue and Kossuth avenue in the said blocks 1929' and 3304 is 213 feet south from Lee avenue. That' the said lots 38. 39, 40 and 41 of said block 1929 were not assessed their full depth, but were only assessed to the line midway between Lee avenue and Kossuth avenue. That the said lots 38, 39, 40 and 41 of block 1929 are owned by John Mengerson to a depth of 125 feet from Lee avenue and the remainder of said lots from said Mengerson’s. southwardly to the alley, is owned by William Blase and has a depth of 147 feet and 7-8 inches. In said block 3304, lots 28 and 27 are assessed their full depth as platted, but lots 29 and 30 of said block are assessed only to the line midway between said Lee avenue and Kossuth avenue. The last two mentioned lots, to a depth of 206 feet, are owned by George Griffiths, and the remainder of said lots running from Griffiths’ southern boundary to the alley, are owned by James and Sarah Nelson.

“3. Lot five, in block 3576 and in the McCune and Yandeventer subdivision, has been assessed only to the midway line. The said lot is improved by a dwelling on Lee avenue, but has no dwelling or outbuilding of any kind on Penrose street. The outbuildings and fence used in connection with the said building fronting on Lee avenue are located at about the middle of the depth of said lot, and that only so much of said lot as lies between said Lee avenue and said midway line is used as the lot for said building.

“Petitioner further states that it is the intention and meaning of the provisions of said charter of the city of St. Louis to have the district line fixed midway between the street improved and the next parallel or converging street, if there be such parallel or converging street; and that it is not the intention or meaning of the provisions of said charter that lots fronting upon the street improved, and which have a depth extending to the next parallel or converging street, shall be assessed their entire depth, but that by the provisions of said charter it was intended to have the entire depth of a lot, fronting upon the street, assessed, only when snch lot extended beyond the midway line a short distance, and did not extend to the next parallel or converging street. Petitioner further states that .the district line in the said City blocks 3575, 3577 and 3578 should in pursuance to the provisions of said charter have been placed midway between Lee avenue and Pen-rose street, and that the said district, as defined by said officials of the city of St. Louis and upon which the said tax bills are based, is erroneous in that the lots hereinbefore particularly mentioned and situated in the said blocks, have been assessed their full depth instead of to the midway line; or, if the correct meaning of the said provisions of said amended charter of the city of St. Louis be that any lot in fronting upon the street improved shall be assessed its full depth, even though it extends to the next parallel or converging street, then the said district, as defined by said officials of city of St. Louis, and upon which said tax bills are based, is erroneous in that the lots hereinbefore particularly designated situated in said City blocks 3575, 3576, 3577 and 3578 in the McCune and Yandeventer addition, have not been assessed their entire depth, but have been assessed only to a line midway between Lee avenue and Penrose street. A plat of said district as defined by said city is hereto attached and marked ‘Exhibit B’ and made part hereof.

“Petitioner further states that the said district has been erroneously defined in that the lots in blocks 1929 and 3304 hereinbefore particularly mentioned, have not been assessed their entire depth, although said lots extend beyond the midway line, do not extend to the next parallel street and are lots shown by a recorded plat of Hull’s subdivision.”

Appertaining to these allegations, the return made says:

“Respondents deny that the assessment was made contrary to the charter provisions of the city of St. Louis, and on the contrary, allege that the assessment was made in strict conformity to said charter provisions, and that the tax bills made and issued to the contractor are legal and valid tax bills.

“Respondents further admit the original subdivision and platting of the property as alleged in said writ, and also admit the change of names of the streets as stated in said writ, and also admit that the block numbers of said Me Cune and Vandeventer addition to St. Louis became the respective City Block numbers as stated in said writ.

“Respondents admit and allege that prior to any proceedings being taken for the improvement of Lee avenue Penrose street, the next street north of Lee avenue, was duly - established and opened as a public street of the city.

< t respondents further admit the numbering of lots in said City blocks as stated in the alternative writ, and also admit the relative situation of said lots as originally platted with respect to Lee avenue and Pen-rose street as stated in said writ and shown on Plat B filed therewith. Respondents allege that subsequent to the platting of said land and prior to any proceedings being taken for the improvement of Lee avenue some of said lots were subdivided, in the manner hereinafter stated, thus making two or more lots out of what was originally one platted lot, and that special tax bills were issued in payment of the improvement of Lee avenue as aforesaid, against each of the lots fronting upon said Lee avenue to the entire depth of such lots in the proportion required by the charter provisions of the city of St. Louis, namely, one-fourth of the cost of the improvement being assessed upon all lots fronting upon Lee avenue in proportion to the frontage and three-fourths of the cost of said improvement being assessed in proportion to the area on all lots lying between said Lee avenue and the midway line between Lee avenue and the next parallel street, extending, however, to the entire lot where such lot fronting on Lee avenue extends beyond the midway line.

“Respondents further state that where said original lots were subdivided by the owners thereof, making more than one lot out of such original lots respectively, the city in issuing said special tax bills recognized said subdivision by such owners and recognized the creation by such owners of new lots and such new lots being taxed as lots. That in a number of instances, as shown by the plat filed with the petition in this cause, the ownership of the lots as originally platted was divided, one proprietor owning one-half of the original lot running through from Lee avenue to Penrose street, or owning one-half of such original lots, such one-half running back to the midway line between Penrose street and Lee avenue, and in some cases said lots were divided in' ownership by more minute subdivisions. In some cases as shown by said plat while the same person owns the entire lot he had divided the same by his improvements and fences thereon, in which case where such lots fronted Lee avenue they are included in the assessment to the midway line, because all of that portion of the original lot was by such use segregated from the balance of the lot and used as a part of the premises of said fronting, while the one-half of lot beyond the midway line and fronting on Penrose street was thus disconnected from the one-half fronting on Lee avenue, and in making the assessment the city merely recognized the establishment of new lots by the proprietors and in all cases followed the lots as platted in making the assessment unless the owners had subdivided original lots and made more than one lot in fact out of the original platted lot.

“Respondents admit that in locating the taxing district line as described in the charter, the city through its proper official, placed the same in accordance with existing lot boundaries as above stated as shown by said plat and as stated in said writ except lot 12 in the City Block 3576 was assessed only to the midway line between Lee and Penrose. The reason for assessing this lot only to the midway line being that one-half of said lot twelve fronting on Lee avenue is and was owned by one party, and the half of said lot fronting on Penrose street is and was owned by another and different party, each one of which owners uses his respective lot for his own separate purpose, and except that entire lot 11 in the City Block 3575 was assessed, the reason being that said lot was owned by one person who had improvements fronting on Lee avenue and who used the entire lot back to Penrose as a part of a dwelling house premises.

“Respondents further admit that lot 5' in City Block 3576 was assessed only to the midway line between Lee avenue and Penrose street, the facts being that the west half of said lot 5 is and was owned by one Russell, who had and has a house thereon fronting Lee avenue, using the lot half back to Penrose street as a part of his dwelling house premises, which dwelling house premises are separated from the Penrose end of said lot by a fence placed at the midway line. The east half of said lot 5 is divided in ownership, the portion fronting on Lee avenue is owned by one Herwig who has a dwelling house fronting Lee avenue. The premises used in connection with which runs back to a fence which is placed upon a line midway between Lee avenue and Penrose street, and the portion of said east half of said lot fronting on Penrose street is owned by one Metz, who has a dwelling house fronting Penrose street, and whose dwelling house premises extend from Pen-rose street back to the midway line between Lee avenue and Penrose street. Said lot 5 being thus divided by its owners and proprietors, was assessed in accordance with said division, the city recognizing as separate lots the portion of said original platted lot that had been made separate lots by the owners thereof.”

As to all the other allegations the return specifically admits the allegations of the alternative writ.

As said, in the record before us we have only the alternative writ and the return. Under such eircumstanees the case was submitted on briefs, which seem to fully recognize the facts alleged in the return. At any rate there being no denial of the averments made in the return the allegations therein must be taken as true for the purposes of this case.

Such are the facts for our consideration.

The relator makes a fair summary of his contentions in this language:

“ (1) The taxing district as established is not in acordance with the charter, because some of the lots, in a platted subdivision which front the improvement have been assessed only to the midway line, and others their full depth to the next parallel street.

“ (2) That the proper interpretation of the charter of the city of St. Louis requires the placing of the district boundary at a line midway between the improved street and the next parallel or converging street, where the platted lots fronting the improvement extend through to such parallel or converging street.

(3) If, however, the exception in the charter, that a lot fronting the improvement shall be assessed its full depth, applies in snch a case, then all of the platted lots should be so assessed, irrespective of the use that is being made of them.

“ (é) That if the charter should be construed as permitting some of these lots to' be assessed only half way, and others, in the same subdivision and bearing exactly the same relation to the improvement, to be assessed their full depth, it would be unconstitutional.”

I. Of these contentions we take the last first. It might suffice to say that the constitutional question thus injected is not raised in the pleadings. However, the constitutionality of the act has been before us and decided adversely to claim of relator. [Meier v. St. Louis, 180 Mo. 391; Collier Est. v. Western Pav. & Supply Co., 180 Mo. 362; Fruin-Bambrick Construction Co. v. St. Louis Shovel Co., ante, p. 524.]

With this the constitutional question will be dismissed. The constitutionality of this charter provision has received due consideration by this court, and if there be a serious Federal question, our action is subject to the proper review.

II. The remedy here sought, that of cancelling the tax bills upon a district improperly defined, and issuing new ones upon one properly defined, has been fully recognized by this court. [State ex rel. Paving Co. v. St. Louis, 183 Mo. 230.]

The first question for determination is whether or not, where a street is being improved, lots fronting on such street and running through to the next parallel street, should be included in full or only to the midway line. It will be observed that a number of the lots as originally platted run through from Lee avenue to Pen-rose street. It will also be observed that since the original platting of the lots, some of them have been divided by deed, so that the half fronting upon Lee avenue is owned and used by one party and the half fronting upon Penrose street is owned and used by another party. In some instances the same owner has the entire lot, but by use has divided it at the midway line and has improved and is using the two halves separately. But first, where the lot as platted is owned by one party and all used together, with the chief improvements in Lee avenue, how should the district line be drawn as to such lot? Should the district line include the whole lot, or should it stop with the midway line ? If the former, of course this would carry the district line to the next parallel street, whenever we had a lot of this character. In other words, what does the charter mean in a case of this character?

The charter provision reads: “A line shall he drawn midway between the street to be improved and the next parallel or converging street on either side of the street to he improved, which line shall he the boundary of the district, except as hereinafter provided, viz.: If the property adjoining the street to he improved is divided into lots, the district line shall he so drawn as to include the entire depth of all lots fronting on the street to he improved. If the line drawn midway, as above described, would divide any lot lengthwise, and the average distance from the midway line so drawn to the nearest boundary line of the lot is less than 25 feet, the district line shall in such case diverge to and follow the said nearer boundary line. ’ ’

Prom this it will he observed that the general plan of establishing a district is to establish a midway line between the street to he improved and the next parallel or converging street. This general plan appears from the first clause, hut to this plan there are certain exceptions. The exception covering this point is fully set out, and is to the effect that the whole of a lot which fronts on the street to he improved, must he taken into the district, though the district line would thereby he changed from the midway line first mentioned. Relator would have us write into the charter an exception which is not there, i. e., in the event that the lots extended through to' the next parallel street, then only half of the lot should he included. This we do not feel should he done. Had the people adopting the charter desired the additional exception, it would have been made. Nor is it unreasonable, as might he urged, that in the event the other abutting street is improved the lot would he again assessed. Benefits are at the foundation of assessments of this character and a lot abutting two improved streets has its advantage over one adjoining hut one. At any rate there are no sufficient reasons to authorize this court to reconstruct, by interpretation, the charter of the city of St. Louis, and it will not be done. So that with the exceptions to be discussed later, we are of the opinion that such lots are properly included in the district.

III. The further contention is that inasmuch as in the formation of this particular taxing district, some of these lots running through from the street being improved to the next parallel street, were included in full, then all such lots, as originally platted, should have been so included, and for that reason the district has not been properly established. It will be observed from the return it stands admitted that in some instances the original owners of lots extending through from street to street, had sold parts thereof, and in such case in forming the district these parts were recognized as lots, and treated as independent lots. In this way if the original lot had been divided by sale and deed at the midway line, then only the half fronting on Lee avenue was taken, and the portion fronting on Penrose was left out. Relator contends that the word “lot” as used in the charter means a platted lot, and, therefore, either the half or the whole of all such lots should be taken. Relator’s contention is based on the following charter provision:

“The word ‘lot,’ as used in this section, shall be held to mean the lot as shown by recorded plats of additions or subdivisions, but if there be no such recorded plat, or if the owners of property have disregarded the lines of lots ais platted, and have treated two or more lots or fractions thereof as one lot, then the whole parcel of ground or lots so treated as one, shall be regarded as a lot for the purposes hereof.”

From this charter provision which undertakes to define the word “lot,” it by no means follows that a platted lot is always meant, but the latter clause expressly recognizes the changing of lots by use. What can he done by use can be done by deed. If by use or deed one lot may be made up of many lots, then by similar acts why can’t several lots be made of one? To our mind the latter portion of the charter clause last quoted is authority for the recognition of the use of the lot, in determining what is the lot, when forming the district. Under this clause if one man purchased several lots, and used them all as one lot, thereby disregarding the platted lines, such use and treatment made the consolidated tract but one lot for the purpose of these assessments. The use and treatment does away with platted lines and lots. And in our judgment the use and treatment of a part only of such platted lot, would make such portion an independent lot for the purposes of such assessment. Suppose A and B own adjoining lots. A sells his lot to C and B sells one-half of his lot to C. In the course of time C improves the lot and one-half lot as one tract, and uses it for the one purpose; under the charter provision aforesaid the lot and the half lot so used must be considered as one lot. If so, what- becomes of the remaining half lot belonging to B? By force of circumstances it necessarily becomes a lot within itself, for the purpose of these assessments. We, therefore, conclude that these original platted lots may be divided into one or more lots, either by deed, or by separate and distinct use, but where the lots run from street to street and have not been separated either by deed or distinct and separate use and treatment, it still remains a single lot and must be included in the taxing district. This is the reasonable construction to be given to these charter provisions. It was never contemplated that once a lot by reason of a plat, always a lot, notwithstanding the division thereof by later acts.

From this it follows that the peremptory writ should be denied, and it is so ordered.

All concur.