author: GRAVES, J. BROWN, J.,

text:
    THE STATE ex inf. ELLIOTT W. MAJOR, Attorney-General, v. WILLIAM M. McKAY.
    In Banc,
    April 8, 1913.
    1. TERM OF OFFICE: Ambiguous Statute: Rule of Construction. If the statute fixing the duration of official tenure is ambiguous that interpretation is followed which limits the term to the shortest time. And a statute declaring that the stenographer of a circuit court “shall hold his office during the term of the judge appointing him” is uncertain, indefinite and ambiguous. [BROWN, J., LAMM, O. J., and WALKER, J., dissenting.]
    2. -: Court Stenographer: “During Term of Judge Appointing Him.” Where the statute says that the stenographer of a circuit court “shall hold his office during the term of the judge appointing him,” it means that he holds the office during the time the judge appointing him actually holds the office of circuit judge. So that where Eastin was elected circuit judge for a term of six years and appointed Ford to the office of stenographer of his court for a term of six years, and after two years Eastin resigned, and a successor to Eastin was elected as the law requires, and said successor appointed McKay stenographer, who qualified, Ford’s tenure of the office was thereby terminated. Upon Eastin’s resignation, Ford could not continue to hold the office of stenographer during the balance of the term of six years for which the circuit judge (Eastin) appointing him had been elected, but he was entitled to hold it only during the time Eastin held his own office. Held, by BROWN, J., dissenting, with whom LAMM, C. J., and
    WALKER, J„ concur, that there is no ambiguity in the statute; but as the Constitution distinctly fixed the term of the circuit judge at six years, and the Legislature must have known that fact when it declared the stenographer “shall hold his office during the term of the judge appointing him,” it meant to make the tenure of the stenographer equal to that of the judge appointing him, and not to terminate it with the resignation of such judge.
    3. -:-: -: Word Term: Intent. In ordinary parlance by “the term” of a particular officer is meant the time actually served by him; and that which remains of the term fixed by the statute is designated as “the term” of his successor. The intent of the Legislature in declaring that a court stenographer “shall hold his office during the term of the judge appointing him” was that the stenographer appointed by any individual, judge should serve only so long as that- judge served. The statute means that the sitting judge shall have a stenographer of his own choosing.

      Held, by BROWN, X, dissenting, with whom LAMM, C. X, and WALKER, X, concur, that the word “term,” when used to describe the tenure or time during which an appointee may hold office, carries no ambiguous import, but embraces and means the fixed and definite time prescribed by law for holding said office..
    4. -:-: Aided by Other Statutes. The trend of all the statutes relating to clerks in the various executive offices and stenographers of other courts is to give the appointing power the right to at least designate the appointee, and to authorize the acting chief, who has' the appointing power, to select the subordinate.

      Held, by BROWN, X, dissenting, with whom LAMM, C. X, and WALKER, X, concur, that prior acts of the Legislature may be resorted to to solve, but not to create, an ambiguity; and as the statute under consideration contains no ambiguous or repugnant provision, prior acts are not to be considered in arriving at its meaning.
    Quo Warranto.
    Writ denied.

      John T. Barker, Attorney-General, for relator; Thomas B. Allen and Broaddus & Grow of counsel.
    (1) Whether we take the phrase “term of office” in its ordinary sense, or in its technical import, it means one and the same thing; “A fixed and definite period of time.” State ex rel. v. Stone^treet, 99 Mo, 372; State ex inf. v. Williams, 222 Mo. 278. In State ex rel. Tilley v. Ford, 41 Mo. App. 128, construing the statute in question, the court said: “So, then, .when Judge Spencer entered upon the duties of circuit judge, ... he was authorized to appoint a court stenographer for his said court in that county. And this he did by selecting and commissioning relator Tilley, who took the office for a tenure or term coextensive with that of Judge Spencei.” (2) The words “term of office” do not refer to the incumbent or incumbency in the office — those words refer to the tenure or duration of the office. Jameson v. Hudson, 82 Va. 282. (3) The word “term” has no application to appointive office held at the pleasure of the appointing power. Mechem on Public Officers, sec. 385; Speed v. Crawford, 3 Met. (Ky.) 207; Field v. Malster, 41 Atl. (Md.) 1088. (4) Where no time is definitely fixed for the beginning of the term, the term will begin at the date of the appointment. Mechem on Public Officers, sec. 386; State ex rel. v. Williams, 222 Mo. 268. (5) The mandate of the statute is that words in the statute must he construed in their ordinary sense. Sec. 8057, R. S. 1909. This court will not undertake to construe a statute contrary to the plain intendment of the words used. Henry v. Evans, 97 Mo. 47; State ex rel. v. County Court, 128 Mo. 427; Smith v. Railroad, 143 Mo. 38; State ex rel. v. Riley, 203 Mo. 187.

      Culver & Phillip for respondent.
    (1) The words “during the term of the judge appointing him” mean the time actually 'served by the judge, and not the time for which he was elected. State ex rel. v. Smith, 87 Mo. 158;.Silver v. Magruder, 32 Md. 397; Trial of Andrew Johnson, vol. 2,- p. 194; lb., vol. 3, p. 322. (2) The authorities, defining the words “term of office,” cited by informant, are not in point. (3) Official terms should not be extended beyond the time clearly defined, but rather shortened by implication. 23 Am. & Eng. Ency. Law, p. 409; Me-chera on Public Officers (Ed. 1890), par. 390; 29 Cyc. 1396; Wright v. Adams,-45 Tex. 134; Smith v. Bryan, 100 Ya. 199; People v. Palmer, 154 N. Y. 133; People v. Brenham, 3 Cal. 477. (4) It is not the policy of the law in this State to make the term of the appointee coextensive with the term for which the officer appointing him was elected. State ex rel. v. Gordon, 238 Mo. 168; Hartman v. Adamson, 101 Mo. App. 119. (5) The act of Judge Eastin in appointing Ford for a term of six years was illegal.
   GRAVES, J.

The facts of this case are so succinctly, briefly and fairly stated by counsel for respondent McKay, that I adopt their statement. Such statement reads:

“This is a proceeding by quo warranto, brought by the Attorney-General against William M. McKay, respondent, to require said respondent to show by what authority he holds and exercises the duties of the office of official stenographer of Division No. Two of the Circuit Court of Buchanan county, Sixth Judicial Circuit.
“The undisputed facts as disclosed by the information, and answer and return are as follows:
“At the general election held in November, 1908, one Lucién J. Eastin was duly elected judge of Division No. Two of said court for a term of six years, and duly qualified and entered upon the discharge of his duties on January 1, 1909, following his election. On the fourth day of January, 1909, Judge Eastin duly appointed Harry K. Ford as official stenographer of said court, and said Ford on said date qualified as such stenographer and from said date to the fourth day of January, 1913, has been the .qualified and acting official stenographer of said court.
“On January 3, 1911, Judge Eastin resigned his office, and on said date William K. Amick was appointed as Ms successor by the Governor. Judge Amick qualified and entered upon the discharge of his duties and so continued until the 31st day of December, 1912, when judgment of ouster was- entered against him in a proceeding similar to this in this court. During the time Judge Amick served as such judge the said Ford continued to serve as stenographer without any appointment other than that made by Judge Eastin.
“At the general election held on November 6, 1912, Charles H. Mayer was elected to said office, to fill the vacancy caused by Judge Eastin’s resignation, to hold for the remainder of the term ending on December 31, 1914, and his right to the office for the, time stated was confirmed by this court in the case above mentioned.
“On the first day Judge Mayer held said court, to-wit, January 4, 1913, he appointed the respondent, McKay, as official stenographer for said court, duly entered of record in said court an order to that effect, and the respondent duly qualified and since said time has been acting as such stenographer.
“The case is for determination on the motion filed by information for judgment on the pleadings.”

The statute under which appointments are made in Buchanan county, reads:

“For the purpose of preserving the record in all cases for the information of the court, jury and parties, and for expediting the public business, the judges of the circuit courts of the State of Missouri, for counties having a population of more than forty-five thousand and less than one hundred and fifty thousand inhabitants, shall appoint an official stenographer for each court or each division of said circuit court, who shall be well skilled in the art of stenography, and shall have had at least three years’ actual practice in court reporting. Such stenographer shall be a sworn officer of the court, and shall hold his office during the term of the judge appointing him.” [R. S. 1909, sec. 11244.]

The last clause of this section “and shall hold his office during the term of the judge appointing him” is the real hone of contention. Other side suggestions, if necessary, will he noted in the course of the opinion.

I. That there is an ambiguity in this statute is clearly evidenced hy the well defined diverse views of contending counsel, as well as the diverse views members of this court. We usually do not differ where the legislative act is clear and unambiguous. This statute is uncertain, indefinite and ambiguous. In such case there is at least one well defined preliminary rule of construction. This preliminary rule is stated in 23 American and English Encyclopedia of Law, p. 409, thus:

. “If a statute or constitutional provision fixing or limiting the duration of an official term is ambiguous, that interpretation should be followed which limits the term to the shortest time.”

So too 29 Cyc. 1396 announces the rule thus:

“Where the statute fixing the term is uncertain, that interpretation should be followed which limits the term to the shortest period.”

The same idea is expressed by Mechem on Public Officers (Ed. of 1890), paragraph 390, in this language: “Where a constitutional provision prescribing the term of a public officer is uncertain or doubtful in its construction, that interpretation will be adopted which limits the term to the shortest time.” This rule may have some application to the case at bar as we proceed later to discuss this statute. It is at least a sidelight in the construction of a statute which we think is ambiguous as to the actual term of the office attempted to be created. The language of the statute is such that we must try to seek the legislative intent from its face. This act we take next.

II. We come now to the statute itself. It says ‘ ‘ and shall hold his office during the term of the judge appointing him.” Does this mean that the stenogra-P^er goes out when the judge making the appointment goes out, or does it nlean that stenographer holds for the term for which the appointing judge was elected? Judges, of the circuit court are elected for a term of sis years, and if the statute means that his appointment holds for that term, irrespective of the holding by the judge himself, the respondent has no standing, here. If, on the other hand, the statute means that the stenographer shall only hold so long as the appointing judge holds, then McKay is right and the -relator wrong. What is meant by ‘ ‘ the term of the judge appointing him” as used in the statute? An answer solves the case. To my mind one’s term of office does not necessarily refer to the time, in years, for which he was elected. That elective term may be sooner terminated. Death may terminate it. Resignation may terminate it.' Removal may terminate it. However the elective term may be terminated, in ordinary parlance we speak of the time actually served, as “tho term” of the particular officer. That which remains we speak of as “the term” of his legal successor. Had the Legislature desired to fix the term of the stenographer more definitely it no doubt would have done so. That body knew what we all know, that the court stenographer is much more closely connected with the judge than any other official. He receives the dictations and writes the official and other letters of the judge. The judge must have confidence in him, or he is at a loss to know what to do in signing bills of exceptions wherein there is a dispute. In fact, above all others, the stenographer is and should be closer to the judge than any other court official. These things the lawmakers knew when they enacted the law now up for construction. The lawmaking body never intended tliat there should be a court stenographer not in full accord with the judge then presiding over the court. The language used may be ambiguous and of doubtful meaning, when read in cold type, but the intent to my mind is plain. That intent was that the stenographer appointed by any individual judge should only serve so long as that judge served. If by death “his term” was ended, the stenographer appointed by him went' with him. So too in case of resignation or removal. In this case when Judge Eastin resigned, his, Eastin’s, term expired. He had no further term of service. With his term¿ likewise expired the term of his stenographer', Mr. Ford. If Ford was permitted to hold on longer it was a pure matter of grace, and not a matter of law. Judge Amick could have appointed his successor. Because Judge Amick did not see fit so to do, does not preclude Judge Mayer from naming his own stenographer. The legal vacancy was there when Judge Mayer assumed office. This statute never contemplated that the sitting judge should not have a stenographer of his own choosing. This, without reference to what his'predecessor in office had done during “the term” of his service.

Counsel for respondent have carefully collected a mass of correlative matter showing that the trend of legislative thought is along the line above suggested. We have compared the statutes and feel that counsel speak correctly. They say:

“The Legislature of this State has been careful in nearly every instance to give the appointing power the right to remove an appointee at pleasure.
“This is true of the assistants and appointees of the Attorney-General. [Sec. 971.]
“It is also true of the assistants, clerks, and stenographers appointed by the circuit attorney. [Sec. 980.]
“Of the assistant prosecuting attorneys. [Secs. 1028-1033.]
. “Of the bank commissioner’s clerks and stenographers. [Sec. 1074.]
“Of all officers and employees appointed by tlie managers of State Institutions except superintendents. [Sec. 1387.]
“Of game commissioners’ deputies. [Sec. 6566.]
“Of the food and drug commissioners’ deputies and clerks. [Sec. 6608.]
“Of the superintendent of insurance. [Sec. 6880.]
“Of clerks of justices of the peace. [Sec. 7620.]
“Of the deputies of constables. [Sec. 7631.]
“Of assistant State librarians. [Sec. 8158.]
“Of stenographers of judges of the Supreme Court. [Sec. 11267.]
“Of stenographers of courts, having jurisdiction of felonies in counties or cities having over 100,000 inhabitants. [Sec. 11259.]
“Of sténographers of courts in counties and cities having 350,000 inhabitants or more. [Sec. 11231.]
“And it has been declared to be the law in this State that where no provision is made as to the term of tenure of an appointive officer, he holds his appointment at the pleasure of the appointing officer. [State ex rel. v. Gordon, 238 Mo. 168; Horstman v. Adamson, 101 Mo. App. 119.]
“It would, therefore, be strange indeed if the Legislature had made an exception in this respect and made the stenographer not only not subject to removal by the appointing judge but fixing his term absolutely at six years.”

In the construction of this ambiguous statute these are glaring facts which we must meet. The trend of all of these statutes is to give the appointing power the right to at least designate the appointee. Not only so, but the trend is, that the subordinate must be one selected by the acting chief, who has the appointing power. In other words the man serving under a bead of a department mast be one in fall sympathy with the head. There is no closer relationship than the one between the judge and his stenographer. The Legislatare never intended by this statate to foist the stenographer appointed by one jndge apon his successor in office, it matters not how that saccession was occasioned.

This law came ander review in the case of State ex rel. Tilley v. Ford, 41 Mo. App. l. c. 127. Discassing this law, Gina, J., said:

“For the purpose of expediting the business of the courts it is there provided, in section 1 of the act, that, ‘The judges- of the circuit courts of the State of Missouri, for counties having a population of more than forty-five thousand and less than one hundred and fifty thousand inhabitants, shall appoint an official stenographer for each court, or each division of said circuit court, who shall be well skilled in the art of stenography, and shall have had at. least three years’ actual practice in court reporting. Such stenographer shall be a sworn official of the court and shall hold his office during the term of the judge appointing him.’ From the reading of this section it seems clearly the intention of the Legislature: First, to create the office of court stenographer, and, secondly, to limit the occasion proper for his appointment to counties, where circuit courts are held, having a population of not less than forty-five thousand or more than one hundred and fifty thousand. It is equally clear that the design was to have as many of these officers as there were, or should be, circuit courts, or divisions thereof, in said counties, and, further, in each case that such court stenographer be commissioned by the individual judge who may at the time preside over such court, or over such division thereof.”

It is the last clause of the quotation that has special significance here — i. e. “in each case that such court stenographer be commissioned by the individual judge who may at the time preside over such court, or over such division thereof. ’ ’ It is true that the question of the stenographer’s term of office was not directly at issue in this case, hut the opinion shows the mental attitude of- that court as to the construction which should be given the statute. The idea expressed is that the stenographer should be an appointee of the judge at the time presiding over the court. Case law upon the question is sparse, because of the peculiar and ambiguous wording of our statute. We are thoroughly impressed with the idea that the clause of the statute “shall hold his office during the term of the judge appointing him” means the term actually served by such appointing judge, rather than the term of six years for which he may have been elected.

Some sidelights may be found in the impeachment trial of President Andrew Johnson. At that time the law relating to Cabinet officers provided that they ‘ ‘ shall hold their office respectively for and during the term of the President by whom they have been appointed, and for one month thereafter.” Edwin M. Stanton was appointed Secretary of War by President Lincoln during Lincoln’s first term. No reappointment was made for the second term of President Lincoln, and, as we know, he was murdered shortly after the beginning of his second term. Andrew Johnson under the Constitution succeeded to the Presidency and shortly thereafter removed Stanton and appointed a successor. This act was one charge in the bill of impeachment. In giving his opinion upon the case against Johnson, Senator Fessenden, Vol. 3, pp. 20 and 21, of “Trial of Andrew Johnson” thus clearly states the situation:

“Again, does Mr. Stanton, come within the proviso? What is the term therein fixed and established for the Secretary of War? Specifically, the term of the President by whom he was appointed, and one month thereafter. ITe was appointed by President Lin-coin, and the term of President Lincoln existing at the time of his appointment expired on the 4th of March, 1865. Can any one doubt that had a law been in existence on that day similar to that of March 2, 1867, Mr. Stanton would have gone out of office in one month thereafter? The two terms of Mr. Lincoln were as distinct as if held by different persons. Had he been then reappointed by Mr. Lincoln, and confirmed, and a law similar to that of March 2, 1867, been then in existence, is it not equally clear that he would have again gone out of office in one month after the expiration of Mr. Lincoln’s second term? If so, the only question would have been whether Mr. Lincoln’s term expired with him, or continued notwithstanding his death, until the 4th day of March, 1869, although he could no longer hold and execute the office, and although his successor, elected and qualified according to all of the forms of the Constitution, was, in fact and in law, President of the United States. How could all that be, and yet that successor be held to have no term at all? To my apprehension, such a construction of the law is moré and worse than untenable.
“The word ‘term” as used in the proviso, when considered in connection with the obvious design to allow to each person holding the presidential office the choice of his own confidential advisers, must, I think, refer to the period of actual service. Any other construction might lead to strange conclusions. For instance, suppose a President and Vice President should both die within the first year of the term for which they were elected. As the law now stands, a new election must be held within thirty-four days preceding the first Wednesday of December then next ensuing. A new term of four years would commence with the inauguration of the new President before the term for which the preceding President was elected had expired. Do the heads of departments appointed by that preceding President hold their offices for three years of the term of the new President and until one month after the expiration of the term for which such preceding president was elected? Such would he the consequence of giving to the word ‘term’ any other meaning than the term of actual service. It must he evident, therefore, that the word ‘term’ of the President, as used in the proviso, is inseparable from the individual, and dies with him. ”

In the same volume, p. 322, Senator Trumbull, among other things said:

"The clause of the Constitution which declares that the President shall hold his office during the term of four years does not mean that the person holding the office shall not die, resign, or be removed during that period, but to fix a term or limit during which he may, but beyond which he cannot, hold the office. If he die, resign, or be removed in the meantime, manifestly the term, so far as he is concerned, has come to an end. The term of the presidential office is four years, but the Constitution expressly provides that different persons may fill the office during that period, and in popular language it is called the term of the person who happens for the time being to be in the office. It is just as impossible for Mr. Stanton to now serve as Secretary of War.for the term of the President by whom he was appointed as it is for Mr. Lincoln to serve out the second term for which he was elected. Both the presidential term of the President who appointed Mr. Stanton and the person who made the appointment have passed away, never to return; but the presidential office remains, filled however, by another person and not Mr. Lincoln.”

So we say in this case that the law of Missouri contemplates, an elective term of six years for a circuit judge, but such term for different reasons may be filled by one or more persons. We also say that the official term of the stenographer for such judge is the term of actual service of the appointing judge, and not the elective term of six years. Such construction to my mind comports with the general spirit of all our statutes bearing upon similar appointments and is founded in good reason. Under these views, the writ should he denied. It is so ordered.

Woodson, Bond and Paris, JJ., concur; Lamm, G. J., Brown and Walker, JJ., dissent in an opinion by Brown, J.

DISSENTING OPINION.

BROWN, J.,

I dissent from the views of my learned brother Graves in the majority opinion for the following reasons:

The law which defines the term for which Judge Eastin possessed the power to appoint an official stenographer is that part of section 11244, Revised Statutes 1909, which reads as follows:

“Such stenographer shall be a sworn officer of the court, and shall hold his office during the term of the judge appointing him.”

Respondent earnestly contends that the appointment of Ford only authorized the latter to occupy the office of official stenographer during the period of time that Eastin actually held the circuit judgeship, and that the resignation of Eastin, ipso facto, vacated the office of official stenographer. In support of this contention he cites: Impeachment of Andrew Johnson, vol. 2, p. 194; State ex rel. v. Gordon, 238 Mo. l. c. 181; State ex rel. Tilley v. Ford, 41 Mo. App. 122, l. c. 128; Silver v. Magruder, 32 Md. l. c. 397.

The impeachment case involved the right of President Johnson to remove a Cabinet officer appointed by President Lincoln at the beginning of Lincoln’s first term. The full term of the Cabinet officer so removed had expired under the express provision of the statute which authorized his appointment, and he'had not been re-appointed by President Lincoln upon the election of the latter to a second term.

State ex rel. v. Gordon, supra, determines the fact, and only the fact, that a person holding office at the pleasure of the Governor has no “term of office” within the meaning of that provision of our State Constitution which prohibits the increase of salaries of officers during their “official terms.” It was a suit to collect the salary of an officer, and there was no contention that the officer claiming the salary was not lawfully appointed to the office for which he demanded the salary.

The case of State ex rel. Tilley v. Ford, 41 Mo. App. 122, was an action of quo warranto to oust Tilley from the office of official stenographer of Division No. Two of the Buchanan Circuit Court on the ground that Tilley having been appointed official stenographer of the-circuit court of Buchanan county prior to the creation of Division No. Two of said court, the Legislature was without power to authorize the appointment of another stenographer in that county. In that case it was correctly ruled that having created the office of official stenographer the General Assembly had the power to provide for the appointment of as many additional stenographers as it saw fit, even though the appointment of additional stenographers decreased the income of relator. That action did not, in any way, involve the issue of the duration of the term of an official stenographer of Buchanan county who had been duly appointed.

The case of Silver v. Magruder, 32 Md. 387, is also relied upon by respondent. In that case the Governor of Maryland, whose term was fixed by the Constitution at four years, appointed a State Librarian in the middle of his term under a statute which provided that the librarian should hold office “during the term of the Governor by whom be shall have been appointed.” The librarian so appointed contended that he was entitled to a full four-year term, but the Supreme Court of Maryland ruled that he must retire at the end of the terra of the Governor who appointed him. The phraseology of the Maryland statute prescribing the term of the librarian in that State is very similar to the statute we are now called upon to construe, but there was no contention in that action that the librarian’s term had been terminated by the removal, resignation or death of the officer appointing him. In fact, the Governor who appointed him served out his full term.

It will be observed that neither the issues nor the facts in the eases cited are similar ¡to those upon which we are now called upon to pass judgment; consequently, those cases do not afford much light in determining how this case should be decided.

Respondent calls attention to the fact that the General Assembly has made the terms of many other court stenographers and other appointive officers terminate at the pleasure of the particular officer appointing them, and insists that section 11244 should be so construed as to mate its provisions harmonize with other statutes relating to the appointment and discharge of other stenographers; that the work of a court stenographer is so closely interwoven with the duties of the court that the court appointing such stenographer should always- have the power of removal at pleasure.

The latter argument is quite logical and might, with equal propriety, be applied to the clerks of courts who are- elected by the people. The General Assembly must have recognized the force of the argument put forth in this case by respondent’s learned counsel when it enacted section 11231, Revised Statutes 1909, relating to the removal of stenographers in circuits having over 350,000 inhabitants. The last named statute was enacted in 1887 (Laws 1887, p. 145), while the law now in judgment (Sec. 11244) was enacted in 1883 (Laws 1883, p. 59). This section seems to have been the second law enacted in Missouri making provision for court stenographers. The first of such laws was enacted in 1881, permitting the appointment of stenographers for certain criminal courts and providing that snch stenographers should be appointed from month to month at the pleasure of the court. If the law which we are now called upon to construe (section 11244, supra) has a doubtful or ambiguous import, we may well consider other enactments relating to the same subject to ascertain the true legislative intent, but where a statute contains no ambiguous or repugnant provisions the rule is otherwise. “The whole doctrine applicable to the subject may be summed up in the single observation that prior- acts may be resorted to to solve, but not to create, an ambiguity.” [2 Lewis’ Sutherland on Statutory Construction (2 Ed.), p. 856.]

We are at last forced to fall back upon the “plain, or ordinary and usual” meaning of the words “shall hold his office during the term of the circuit judge appointing him.” [Sec. 8057, R. S. 1909.] We have not been able to discover any ambiguity in the word “term” as applied to the tenure by which Judge Eastin held the office of circuit judge on January 4, 1909. The Constitution had distinctly marked out the duration of his term at six years. [Constitution 1875, art. 6, sec. 25.] The General Assembly must have known of that provision of the organic law when it enacted section 11244, making the tenure of the stenographer equal to that of the judge appointing him.

If it had been the legislative desire to give the official stenographer of the circuit court of Buchanan county an uncertain or contingent tenure of office, the General Assembly was certainly very unfortunate in the language it used to accomplish that result. The word “term,” when used to describe the tenure or time during which an appointee may hold an office, has been held by this court to carry no ambiguous import, but to embrace and mean the fixed and definite time prescribed by law for holding such office. [State ex rel. v. Stonestreet, 99 Mo. 361, l. c. 372, which last named case is cited with express approval by this court, In Banc, in State ex inf. v. Williams, 222 Mo. l. c. 278.] The time-honored maxim that “that is sufficiently certain which can he made certain” sustains the contention of relator in. this case. [6 Cyc. 844.]

Mr. Mayer, the newly elected circuit judge of Buchanan county, can undoubtedly remove Mr. Ford (Judge Eastin’s appointee) from the office of official stenographer, should Ford, upon a hearing, be found guilty of any of the misconduct denounced by section 10204, Revised Statutes 1909. [State ex rel. v. Slover, 113 Mo. 202.]

For the reasons before recited, I respectfully dissent from the views expressed in the majority opinion.

Lamm, G. J., and Walker, J., concur in the views expressed in this dissent.


source: Caselaw Access Project

author: FABIS, J.

license: Public Domain

text:
    JAMES W. McGHEE et al., Appellants, v. MICHAEL WALSH, COMMERCE TRUST COMPANY and KANSAS CITY.
    In Banc,
    April 8, 1913.
    1. CHARTER OF KANSAS CITY: Superseded Existing Statutes. The freeholders’ charter of Kansas City adopted September 4, 1908, when it went into effect automatically superseded the statutory provisions for the government of cities of the class into which by its population the Legislature had placed that city; suuject, however, to' the limitation that its provisions should be in harmony with the Constitution and laws of the State.
    2. CITY CHARTER: Validity of Statute: Unconstitutionality. The provisions of the freeholders’ charter of Kansas City are to be regarded as having the same fqrce as if they had been enacted into a statute by the General Assembly. They may be invalid for the same reason that a statute may be unconstitutional.
    3. -: District Sewer District: Alteration. The charter of Kansas City permits the city to subdivide, enlarge or change, by ordinance, any sewer district previously established, at any time prior to the construction of a district sewer therein; but thereafter, and automatically by the terms of the charter, the city’s right to enlarge, change or subdivide a sewer district ceases.
    4. -: Alteration of Sewer. But the city is given power • by its charter to construct any needed additional sewers within the district, and to change, enlarge or extend any existing sewer, and to add laterals, inlets and other appurtenances.
    5. -: Sewer District: Establishment: Legislative Matter: Collateral Attack. The matter of establishing sewer districts in Kansas City is intrusted to the municipal assembly, and its action is conclusive in a collateral attack.
    6. —-: Sewers: Assessment of Costs: Area Rule. The whole cost of any sewer constructed within a sewer district, and of any addition thereto, or any alteration therein, at any time, under the charter of Kansas City, may be apportioned against the lands within the district according to the area rule, and that means that all the lands within the district may be assessed with the costs of any such improvement.
    7. -: -: -: Due Process of Law. If before the organization of the sewer district notice and opportunity were given to the land-owners to be heard by the Board of Public Works, which, by the Kansas City charter, is the tribunal having in hand the duty of ascertaining the facts and acting in . the matters leading up to the special assessment of the costs of the construction of a district sewer, then there was also present the due process of law required by the Constitution.
    S. SEWER'CONSTRUCTION: No Benefit: Valid Tax Bill. The common council of Kansas City has power, under its charter and the laws and the Constitution, to establish a district sewer district, and to include therein lands of plaintiffs, and to 1 assess those lands, according to the area rule, with their share of the costs of constructing sewers therein; and the collection of special tax bills issued against those lands will not be enjoined or the tax bills cancelled, although those lands, after the sewers, have been constructed, lie below the bottom of the ,sewers, and cannot now or at any time be drained by them, and the sewers are of no direct benefit to such lands — the sewer district being unchangeable, and there being present the solemn charter promise to later provide an adequate sewer system for plaintiffs’ lands at the expense of all the lands in the district. The law does not require that each property-owner must be "benefited by each sewer constructed. Sewers may be constructed at different times. It will be assumed that the city, at the proper time, when the necessity thereof becomes incumbent, will perform its duty of constructing sewers that will drain plaintiffs’ lands, and that they will be paid for by assessments on all the lands in the district, though they may be of no direct benefit to the lands within the district drained by the sewers already constructed; and especially should this assumption be made, and plaintiffs’ land be charged with their share of the costs of the present sewer, when, owing to a marked slope in the lands of the district and the much rock to be excavated, an adequate sewer system for all the lands can, by separate sewers, be provided at much less cost to the district as a whole.
    9. -;-: Reciprocal Benefit. Nor is it true that plaintiffs’ lands are not benefited though they lie below the bottom of the sewer. The vested right to reciprocal contribution from other land-owners, whenever sewers are needed in plaintiffs’ lands, is of itself a benefit within the purview of the rule that no assessment may be made without benefits accruing. That holding finds strength in two things: first, in the charter provision that the boundaries of the existing district cannot be changed; and, second, in the assumption that the city officials will severally perform their duties rightly, and will, whenever, because of increase in population and buildings in the district, necessity may require it, construct additional sewers, or enlarge and extend existing ones, to care for plaintiffs’ lands not now sewered.
    10. -: -: Collateral Attack. The contention that assessment of costs against plaintiffs’ lands in the sewer district for the construction of a sewer which does not drain those lands is depriving them of their property without due process of law is, in its final analysis, an assertion that the action of the municipal assembly, in establishing the district so as to include their lands, was unreasonable and oppressive; and that attack cannot be made in a collateral proceeding, such as an injunction to cancel and enjoin the collection of the special tax bills.
    11. -: -: Due Process of Law: Notice. Where some of the territory in the sewer district is sparsely settled, and much is vacant; it is physically impossible to build all the sewers over all the district at the same time, and there is no immediate necessity for that, though the city is rapidly growing; there is a charter provision declaring that the boundaries of a district cannot be altered after a Sewer is constructed, but can be before such construction; notice, fully describing the boundaries of the proposed district was given, in the manner provided by the charter, to all property-owners interested to appear and “present their views in respect to the proposed improvement,” and thereafter the district was established including plaintiffs’ lands, which lie helow the bottom of the sewers first constructed, and to pay whose costs the tax hills in suit were issued, it will be presumed that the city officials acted rightly, and that they will continue, as necessity arises, to construct other sewers, and charge the costs thereof against all lands in the district, and if they do that, the assessments for the sewers already constructed, are, in a sense, but installments paid on a comprehensive system of sewerage made necessary by existing exigencies, and the present assessments are not, therefore, without reciprocal benefits, and hence plaintiffs are not about to be deprived of their property without due process of law in such wise as to violate section 1 of the 14th Amendment to the U. S. Constitution.
    Appeal from Jackson Circuit Court. — Eon. Joseph A. Guthrie, Judge.
    AeEIRMED.

      L. A. Laughlin for appellants.
    (1) The theory upon which local assessments for improvements are made in this State is that a special and peculiar benefit is conferred upon the property assessed different from that conferred upon the general public. It follows as a necessary corollary of that proposition that the assessment cannot exceed the special benefit. The burdens of the whole community cannot be shifted to the shoulders of one man, who has only an interest in common with all the rest. t The whole theory of local taxation or assessments is, that the improvements for which they are levied afford a remuneration in the way of benefits. A law which would attempt to make one person or a given number of persons, under the guise of local assessments, pay a general revenue for the public at large, would not be an exercise of the taxing power, but an act of confiscation. In effect it would be transferring the property of one individual to another. McCormack v. Patchin, 53 Mo. 36; Kiley v. Cranor, 51 Mo. 542; Zoel-ler v. Kellogg, 4 Mo. App. 168; Heman Const. Co. v. Railroad, 206 Mo. 177. The tax bill here sued on is not regarded as a tax but as an assessment for improvements, and is not considered as a burden, bnt as an equivalent or compensation for the enhanced value which property derives from the improvement. Shee-han v. Hospital, 50 Mo. 155; St. Louis v. Allen, 53 Mo. 44; 'Wewell v. Cincinnati, 45 Ohio St. 424; Norwood v. Baker, 172 U. S. 269. (2) Land which can be drained by a sewer or drain can alone be deemed to be benefited by its construction. Bennett v. Emmets-bnrg, 138 Iowa, 67; Lawrenceville v. Hennessey, 244 Ill. 464; Lawrence v. G-rand Rapids, 131 N. W. (Mich.) 581; Railroad v. Portland, 25 Ore. 229, 22 L. R. A. 713; Paulson v. Portland, 16 Ore. 450; Gilmore v. Hentig, 33 Kan. 156; Hanseom v. Omaha, 11 Neb. 37; People ex rel. v. Rochester, 5 Lans. (N. Y.) 15. In assessments for the construction of sewers, it is usually provided that land benefited by the sewer shall be assessed for the construction thereof. This includes in the assessment district, land which receives an especial benefit from the construction of the sewer. Hungerford v. Hartford, 39 Conn. 279; Clapp v. Hartford, 35 Conn. 66; Chicago v. Adcock, 168 Ill. 221; Appeal of Wheeler, 80 N. Y. Supp. 204. And ordinarily means the land which can be drained by the sewer for the cost of which the assessment is levied. Duane v. Chicago, 198 Ill. 471; Mason v. Chicago, 178 Ill. 499; Butler v. Worcester, 112 Mass. 541; Warren v. Grand Haven, 30 Mich. 24. Land which is so located that by reason of the slope of the .ground it cannot drain into the ditch in question is not benefited thereby. Klinger v. People ex rel., 130 Ill. 509; In re Yan Burén, 79 N. Y. 384; State v. Pillsburv, 82 Minn. 359; Chicago v. Ad-cock, 168 Ill. 221; Zinser v. Buena Vista Co., 137 Iowa, 660. (3) No assessment can be levied against land which will be benefited by a sewer only, if the sewer is extended. Bickerdyke v. Chicago, 185 Ill. 280; Title Guar. & Tr. Co. v. Chicago, 162 Ill. 505; Vreeland v. Mayor, 58 N. J. L. 126; Hutt v. Chicago, 132 Ill. 352; Edwards v. Chicago, 140 Ill. 440; Clark v. Chicago, 214 Ill. 318. The ordinance projecting this improvement contemplated nothing beyond the construction of the sewers which had been built. No ordinance has been passed or proposed, for an extension or connecting sewer,, which in its operations will benefit the prosecutors ’ lands by draining them: Such connections may never be made. The authorities who may have the control of public affairs, may never conclude to construct a sewer for the drainage of the prosecutors’ land, and if they do they may locate it in such a way that its connections may not be with the present sewer. It is manifest that a probability depending on so many contingencies will have no appreciable influence on the value of the lands on which the burden is imposed and therefore is not an equivalent for the moneys which the prosecutors are required to disburse under this assessment. Railroad v. Elizabeth, 8 Yroom (N. Y.), 330. To impose a present lien and obligation to pay where the special benefit is future and contingent on the will of the municipality, would be a clear violation of the fundamental basis on which all such assessments rest. Appeal of Parker, 169 Pa. St. 433; Beechwood Ave. Sewer Cases, 179 Pa. St. 490; Kansas City v. Railroad, 230 Mo. 369. (4) • Our courts will enjoin the collection of a special assessment where no benefit is conferred. Corrigan v. G-age, 68 Mo. 541; Halpin v. Campbell, 71 Mo. 493; St. Louis v. Richeson, 76 Mo. 485. When it appears that an ordinance passed in pursuance of such power is the creature of fraud or is the product of legislative whim or caprice merely, and in violation of common right, imposing a burden upon the citizen without any corresponding benefits to him, or the community of which he is a constituent, the courts will interfere for his protection. In other words, while the courts may not interfere with the legitimate use of legislative power, delegated to a municipal corporation, they may interfere to prevent its abuse. Skinker v. Hernán, 148 Mo. 355; Iindlmeyer v. Dickinson, 143 Midi. 250; Dillon’s Mnn. Corps. (5 Ed.), sec. 589; Cooley on Taxation, p. 428; Allen v. Drew, 44 Yt. 174. And even where the power to legislate on a given subject is conferred on a municipal corporation, yet if the details of such legislation are not prescribed by the legislation, there the ordinance passed in pursuance of such power must be a reasonable exercisé thereof, or it will be pronounced invalid. St. Paul v. Colter, 12 Minn. 41; Dunham v. Bo-chester, 5 Cow. 462; State v. Belvidere, 44 N. J. L. 350; Plawes v. Chicago, 158 Ill. 653; Wistar v. Philadelphia, 80 Pa. St. 505.

      Lathrop, Morrow, Fox & Moore and Clarence 8. Palmer for respondents.
    (1) In the absence of fraud the establishment of sewer districts is determined solely by the mayor and common council with the approval of the board of public works.. Sec. 7, art. 8, Kansas City Charter; Johnson v. Duer, 115 Mo. 266; Pieman v. Schulte, 166 Mo. 417; Meier v. St. Louis, 180 Mo. 531; Webster v. Fargo, 181 U. S. 912; Prior v. Construction Co., 170 Mo. 439; French v. Asphalt Co., 181 U. S. 324. (2) All the land in. a sewer district is assessable for the cost of sewers, although the sewers built at one time do not directly furnish drainage for the entire district. Pieman v. Schulte, 166 Mo. 417; Prior v. Construction Co., 170 Mo. 439; St. Joseph ex rel. v. Gibson, 110 Mo. 455. (3) The continuation of sewers, by making sewer district 305 unchangeable, conferred a benefit on all the land in the district. Sec. 7, art. 8, Kansas City Charter; Parsons v. Dist. of Columbia, 170 U. S. 45.
   FABIS, J.

Suit in equity, brought in the circuit court of Kansas City, by James W. McGhee and eighty-two others, similarly situated and affected, as plaintiffs, against Michael Walsh and the Commerce Trust Company, as holders of certain tax bills which were issued against plaintiffs and made liens on their property, for the construction of sewers in Sewer District No. 305 of said city, to enjoin the sale and transfer and to cancel said tax bills.

Plaintiffs are the owners of certain parcels and lots of real estate, situate in said Kansas City in Oliver Park Addition, Niagara Place and Warder’s Addition thereto, and lying within the sewer district aforesaid.

The tax bills in question amount, in the aggregate, to $7313.04, out of the total of $59',910.37, issued for the whole work as done when the action was begun. Defendant Walsh obtained the tax bills for, doing the work of constructing the sewers; the manner in which defendant Commerce Trust Company got them, or part of them, is not disclosed, nor is it pertinent.

The further facts, history, chronology and the bone of contention, are these:

On May 7, 1909, Kansas City, acting under authority of section 7, article 8, of the charter, established Sewer District No. 305. By Ordinance No. 3524, approved December 10, 1909, the construction of the sewer in question was authorized; The resolution of the Board of Public Works providing for the construction of the sewer in question was adopted May 25,1909. June 11,1909, was fixed as the date of hearing concerning the proposed improvements,. when any and all property-owners interested in such improvements might, by written petition or otherwise, present their views regarding the improvement. The resolution and the notice of the date of hearing were duly published in the paper doing the city printing from May 30 to June 10, inclusive, 1909. After the hearing the board determined that said improvements should be made, and the contract was awarded to Michael Walsh, one of the respondents. There seems to be no claim that the proceedings were not taken in accordance with, the charter of Kansas City, nor is there any claim that the work was not done in accordance with the contract. The’ facts upon which appellants rely are all stated in this brief paragraph of the petition:

“That all said lots or parcels of land owned by plaintiff lie below the bottom of the sewers constructed by defendant "Walsh under said ordinance 3542 and cannot be drained into said sewers, and all of said sewers are of no benefit whatever to the lots or parcels of land owned by the plaintiffs.”

Defendants contended in the court below, and contend here, that the petition answers itself when it alleges that the sewer district was created by city ordinance and that proceedings in accordance with the charter were taken to construct the district sewer, yet in addition to those facts, the record discloses alleged engineering reasons why it was not only proper, but the only reasonable thing to do, to construct sewers at the time this work was done only in the west part of the district, and to leave the property upon the streets where plaintiff’s lots are located to be taken care of by subsequent sewers.

' Appellants offered in evidence an ordinance describing a former sewer district, No. 252; the ordinance establishing the district was excluded by the court, but, appellants make no special complaint of this action. It appears that the most easterly line of Sewer District 252 coincided with the easterly city limits as existing prior to the extension in 1909. Sewer District .305, as created, lies on the west side of the slope of a water-shed, the drainage line of which runs practically north and south. Prior to the extension of the city limits, which occurred April 6, 1909, and the case involving the authority for which is reported in State' ex inf. v. Kansas City, 233 Mo. 162, there was only a narrow strip between the eastern line of a little stream running through this low ground and the eastern city limits, and at the time of the passage of. the original ordinance in 1903, it was deemed advisable to include the tract np to the city limits for part of the eastern boundary of the district. After the extension of the city limits, however, the council created the present sewer district 305, with its eastern line following generally the lowest point of the watershed and extending up the hill westerly, so that there was a large difference in the elevation between the eastern and western boundaries of the district. The district also sloped to the south. The record shows that prior to the commencement of the proceedings for the construction of the sewer in question a joint-district sewer had been built following generally the line of the stream 'on the east side of sewer district 305. ' With the development of the city this joint sewer had become inadequate, and the expert testimony of the engineers shows that a larger joint-district sewer was necessary. It seems that under the Kansas City charter, joint-district sewers are paid for hy the land in the different sewer districts which are united to form the joint-sewer district, and that there was a tract of about 260 acres of land which lay outside the old city limits, but within the new city limits, which could properly be assessed for a proportional cost of the new joint-district sewer. While the extension of the city limits occurred in-1909, yet litigation attacldhg the validity was begun and was not decided until March 2, 1911, by the Supreme Court. While this litigation was pending contractors would not take substantial contracts involving that question. It was, it is urged, therefore impracticable for the city to build a larger joint-district sewer without leaving out of the assessment this tract of land of 260 acres. In the meantime the western part of this district was being built up so that sewers were needed; the council therefore passed an ordinance providing for the construction of sewers except on two or three streets lying on the eastern border of the district, and on which streets is sitnate the property of plaintiffs; those streets were left for future action of the council.

The record also shows that the rock encountered in the construction of sewers in the eastern part of this sewer district was especially hard to excavate. It shows the. judgment of an engineer of the city engineering department, of eleven years service, that the method taken of including the whole territory in Sewer District No. 305, and in building part of the sewers at that time and leaving the remainder to he taken care of as needed, was cheaper for the property-owner than to have made two districts out of the present territory of district 305. It was in evidence by defendant that proper engineering would require that the discharge of the sewers from the part of the district not sewered at that time was properly into the new joint-district sewer which was not then constructed, and that if an attempt were made to discharge into the creek, instead of the new joint-district sewer, the outfall would he carried across private property. There was evidence tending to show that the sewers which were constructed took care of part of the surface water that formerly came down on to the property at the bottom of the ravine. While this fact was disputed by the witnesses, yet the testimony of the engineers, and the laws of gravity, the lay of the land regarded, make it probable that this was a fact. This testimony was introduced to explain the engineering reasons why the plan was worked out in the present way, instead of some other way to suit the theory of plaintiffs.

The case was tried in the lower court on July 1, 1911, and the court found for the defendants and entered judgment accordingly. From this judgment plaintiffs have appealed, alleging both in the petition and the motion for a new trial, that the special tax-bills were issued in violation of section 30, article 2, of the Constitution of Missouri, and of' section 1 of the 14th Amendment to the Constitution of the United States.

I. It is contended by appellant “that all of the lots or parcels of land owned by plaintiffs lie below the bottom of the sewers constructed by defendant Walsh under said ordinance 3542, and cannot be drained into said sewers, and all of said sewers are of no benefit whatever to the lots or parcels of land owned by plaintiffs.” Defendants, by answer, frankly admit the truth of all this, except matters of benefits, which they say accrue indirectly, and generously add the further admission that no sewers can be constructed which will afford to plaintiffs drainage facilities, without prohibitive and unreasonable Cost, until a joint sewer is built.

So much being admitted, plaintiffs say that to enforce against them the taxbills in question would be to violate section 30, article 2 of the Constitution of Missouri of 1875, and section 1 of the 14th Amendment to the Constitution of the United States. Defendants urge that such result is a legal non sequitur, for the reasons (1) arising upon the facts; that (a) the sewer districts are by the charter of Kansas City fixed and unchangeable, like the laws of the Medes and Persians; that (b) a similar sanitary and storm sewer system as now enjoyed by the west part of District 305, will be, when and as soon as feasible, provided for the east part of the district where plaintiff’s property lies; that (c) a joint sewer will be necessary and is in actual contemplation, and the same will be paid for by the whole of District 305 and the adjoining benefited district; that (d) such sewers will be provided for plaintiffs when this can be done without unreasonable and prohibitive cost, which sewers, though solely for the use and benefit of plaintiffs, ivill be paid for by the whole of District 305, and that under this state of facts, absent fraud, the legal reason (2) concludes plaintiffs, viz.: “That under the law the establishment of sewer districts is determinable solely by the .mayor and common council, with the approval of the Board of Public Works.”

The provisions of the charter of Kansas City, which furnish the authority under which said city acted in establishing Sewer District 305, and which provides the scheme and method of assessing and apportioning the costs of the construction of sewers therein, are found in section 7, article 8, which is as follows:

“Sec. 7. District sewers shall be constructed or reconstructed within the limits of the district heretofore or hereafter established by ordinance, as the case may be. Any sewer district heretofore or hereafter established may be subdivided, enlarged or changed by •ordinance at any time previous to the construction of any district sewer therein. But no such district shall be subdivided, enlarged or changed after a district sewer shall have been constructed therein. The city may, with the approval of the Board of Public Works, from time to time, cause a district server or sewers to be constructed or reconstructed in any sewer district heretofore or hereafter established, and such sewer or sewers shall be as shall be prescribed by the Board of Public Works and confirmed as herein required by ordinance. Any district sewer heretofore or hereafter constructed, may be changed, diminished, enlarged or extended, and shall have such laterals, inlets and other appurtenances as may be prescribed by the Board of Public Works and confirmed by ordinance. As soon as the work of constructing, changing, diminishing, enlarging, or extending any district sewer shall have been completed under a contract let for the purpose, the Board of Public Works shall compute the whole cost thereof, and- apportion and charge the same as a spe■cial tax against the lots of land in the district, exclusive of the improvements, and in the proportion that their respective areas bear to the area of .the whole district, exclusive of streets, avenues, alleys and public highways, and shall, except as in this article provided, make out and certify in favor of the contractor or contractors to be paid, special taxbills for the amount of the special tax against each lot or parcel of land in the district. The city shall in no event, nor in any manner whatever, be liable for or on account of the cost of work done in constructing, changing, diminishing, enlarging or extending any district sewer, except as in this article provided.”

That no benefits whatever have accrued, or can directly accrue from the construction of the identical sewers, in payment- for which the taxbills attached here were issued, stands conceded upon the record, or is proven in the case, save and except only such small benefit as flows from the diversion through the storm sewers already built, of some small portion of the surface water, which theretofore flowed from the drained dominant estate over the servient estate of plaintiffs. Without discussion, it may be perhaps accepted as true, that the relief afforded is infinitesimal and out of proportion to the sums severally assessed against the plaintiffs’ property. We take it from this fact alone, that fairness will not permit of .a finding for defendants. An excuse in law must be found bottomed on sounder and more equitable premises. It must be held that the municipality, from its charter right to establish immutable sewer districts," has the right to tax property presently, and by the improvements presently made, un-benefited in any wise, by virtue of the solemn charter promise to latterly provide an adequate sewer system for plaintiffs and others similarly situated, at the expense of the whole of the property in District No. 305. It must be based, in other words, upon a sort of reciprocal taxation, whereby the east part of the district is now taxed witliont appreciable benefit accruing, wbicb taxation is subsequently to be compensated by tbe taxing of tbe west part of tbe district, likewise without benefits accruing. If tbe law will permit tbis; tbe existing conditions; tbe unalterable establishment of tbe district’s boundaries; tbe physical impossibility of doing all tbe work at one instant of time; tbe presumptions indulged in favor of right acting of officers, and tbe equities in tbe last analysis, all regarded; then tbe judgment should be for defendants.

The city of Kansas City is organized under a special charter pursuant to the provisions contained in the organic law (Sec. 16, art. 9, Constitution), and the statutory authority conferred by an act of the General Assembly, approved March 10, 1887 (Laws 1887, pp. 42-51), and divers amendments thereto, subsequently passed. Tbe charter under wbicb this city is now working, was adopted and went into effecter September 4, 1908. By the statute such charter when it went into effect automatically superseded tbe statutory provisions for tbe government of cities of tbe class into wbicb by its population tbe Legislature had placed Kansas City (Sec. 6360, R. S. 1899); subject, however, to tbe limitation, that the provisions of such charter should be in harmony with tbe Constitution and laws of the State. [Sec. 6359, R. S. 1899.]

That such is tbe legal effect of tbe adoption of such a charter, aside from tbe statute (which is lucid and clear), has been judicially determined by tbis court in several cases which came before us. [Kansas City v. Marsh Oil Co., 140 Mo. l. c. 471; St. Louis v. DeLassus, 205 Mo. l. c. 585; St. Louis v. Liessing, 190 Mo. l. c. 480.] In the case of Kansas City v. Marsh Oil Co., supra, it was said by tbe court:

“A charter is tbe organic law of a city in this State, whether it emanate from tbe G-eneral Assembly, or is framed and adopted by tbe people of tbe municipality by authority of the Constitution. Being a law for the government of the municipality, it is binding upon all courts, and it violates no principle of our government to say that the courts, when called upon, must enforce these municipal laws unless they conflict with the Constitution, and are not in harmony with the Constitution and laws.”

The further objection inevitably arising, that such a power conferred upon the people of a city may be in violation of the rule or maxim that legislative power is not delegable, has been ansAvered in the negative by this court, in so many cases that in this State the question may be regarded as settled. [Metcalf v. St. Louis, 11 Mo. 102; State v. Field, 17 Mo. 529; State ex rel. v. Francis, 95 Mo. l. c. 49; Morrow v. Kansas City, 186 Mo. l. c. 683; Sluder v. Transit Co., 189 Mo. l. c. 128.]

This court, in the case of Morrow v. Kansas City, supra, said:

“The poAver to grant these municipal charters was nowhere expressly granted in either the Constitutions of 1820 or 1865, but was upheld on the ground that it fell, within the general grant of the legislative power, which was plenary, save where restricted by some constitutional prohibition, and as there were no such inhibitions, it was construed to be an unquestioned and continuing power.
“The powers of legislation conferred upon these municipal corporations to regulate and manage their local municipal affairs in conformity to ordinances adopted by themselves, Avere held no infringement upon the maxim that legislative power could not be delegated.”

These considerations lead us to the conclusion that the provisions of section 7 of article 8 of the charter of Kansas City of 1908, are to be regarded as having the same force as if they had been enacted into a statute by the General Assembly of the State. As a statute passed by the General Assembly.may be unconstitutional, so also may a provision of tlie charter of a city likewise be, in a sense, unconstitutional.

The sewers in question, and in payment for which the tax bills involved were issued, are district sewers,” as distinguished from other classes sewers provided for by section 5 of article 8 of the city charter. The provisions of the latter section may be pertinent to an understanding of the provisions of section 7 of the charter, and as indubitably fixing upon the facts, the status of the sewers here involved, as “district sewers!.:” Said section says:

“The general sewer system of the city shall be divided into four classes, to-wit: Public, district, joint district and private sewers. The city may, by ordinance, find and determine the class to which any sewer belongs, and the finding and determination of the city in that respect shall be final-and conclusive.”

In the instant case the ordinance passed by the city designated the sewers about which this case revolves, as “district sewers.”

Analyzing section 7 of the charter, we see that the right is conferred upon the city acting through its legislative branch, to subdivide, enlarge or change by ordinance, any sewer district heretofore or hereafter established, up to and until a district sewer shall have been constructed in such district. Immediately upon the construction of any district sewers in such district, and automatically thereupon by the terms of this section, the right to enlarge, change or subdivide a sewer district ceases. For, continuing, this section says: “But no such district shall be subdivided, enlarged or changed after a district sewer shall have been constructed therein.”

By the further provisions of section 7 of the charter, the city (by ordinance) with the approval of the Board of Public Works, may cause all necessary sewer or sewers to be constructed in a sewer district, and any district sewer theretofore constructed, may be changed,, enlarged, or extended with such laterals, inlets and other appurtenances as may be prescribed by the Board of Public Works, and confirmed by ordinance. When any such work of constructing, changing, enlarging or extending a sewer or sewers is completed, the Board of Public Works is required to compute the whole cost thereof and apportion and charge the cost thereof against all of the parcels of land in the district (exclusive of improvements) upon the basis of what is called the “area rule.” The validity of an assessment made upon the “area rule.” is not questioned here; per contra, it is urged, that an assessment of plaintiffs upon any rule for the sewers in question, would be to deprive them of their property without “due process of law.”

It is well-settled in this State that the matter of establishing sewer districts in a city is intrusted by the Legislature to the common council thereof, and that the action of such common council is conclusive in a collateral attack. [Johnson v. Duer, 115 Mo. l. c. 376; Heman v. Schulte, 166 Mo. l. c. 417; Meier v. St. Louis, 180 Mo. l. c. 409; Prior v. Construction Co., 170 Mo. l. c. 448.]

In the case of Prior v. Construction Co., supra, Marshall, J., speaking for this court, In Banc, and in an opinion' in which all concurred, said: . “ The constitutionality of charter provisions providing for the construction of streets, alleys, or sewers, and charging the cost of such construction proportionately upon all property abutting the improvement or within the established benefit district, either according to the front-foot rule or according to the area rule, is no longer open to debate. All such questions have been settled by the decisions of this court and those of the Supreme' Court of the United States. [St. Louis v. Oeters, 36 Mo. 456; Kansas City v. Ridenour, 84 Mo. 253; St. Joseph v. Owen, 110 Mo. 445; Heman v. Allen, 156 Mo. 534; Barber Asphalt Pav. Co. v. French, 158 Mo. 534; Hill v. Swingley, 159 Mo. 45; Schumate v. Heman, 181 U. S. 402; French v. Barber Asphalt Paving Co., 181 U. S. 324.]”

And in the case of Meier v. St. Louis, snpra, likewise an opinion In Banc in which all concurred, Gantt, J., said: “It is now the settled law in this court that special assessments for local improvements are referable to the taxing power. [Garrett v. St. Louis, 25 Mo. 505; Heman v. Allen, 156 Mo. 534; Barber Asphalt Co. v. French, 158 Mo. 534; Ibid. v. Ibid., 181 U. S. 324.] It is within the power of the Legislature to create special taxing districts, and to charge the cost of a local improvement, in whole or in part, upon the property in said districts, either according to valuation or superficial area or frontage. [Webster v. Fargo, 181 U. S. 394; Prior v. Construction Co., 170 Mo. 439; Asphalt Co. v. French, 158 Mo. 534; Spencer v. Merchant, 125 U. S. 345; Egyptian Levee Co. v. Hardin, 27 Mo. 495.]”

Present, notice and opportunity to be heard before the Board of Public Works, as was given to the plaintiffs, by the tribunal having in hand of duty of ascertaining the facts and acting in the matters leading up to and in the special assessment procedure, there is also present that “due process of law” required by section 30 of article 2 of our Constitution. [Meier v. St. Louis, supra; Gist v. Construction Co., 224 Mo. l. c. 392.]

The Common Council of Kansas City in the exercise of a right, which, in the case at bar, was intrusted solely to such council, has seen fit to establish Sewer District 305 and to include the property of plaintiffs therein. The whole case of plaintiffs, in the last analysis, is referable to the correctness of this action. The illogical results of an interference in a proper case will be seen, when we regard the physical and topographical situation. The proof shows that at certain places rock of a most refractory sort, difficult and costly to excavate, exists; that there is a varying broken slope both toward the east and southeast, and that within the boundaries of the sewer district as formed, the height of the land varies from 220 feet at the highest point to sixty feet at the lowest point.

No hardships upon plaintiffs in the ultimate working out of the scheme of building sewers in District 305, as established by the council, can occur. The council by ordinance, with the approval of the Board of Public Works, may build new district sewers and enlarge and extend those already built. When such sewers which are now constructed are extended, and when new sewers for the use, and it may be for the sole benefit of plaintiffs, are constructed, the cost thereof will be borne by the entire property in the district, according to the “area rule;” in other words, all of the seioers constructed in the district will, and must he paid for hy assessment against all of the property in the district. In the last analysis, no other rule is feasible or sensible. If we concede that as a matter of law each property-owner must be specifically benefited by each sewer, then the power to extend a sewer is futile. The moment a sewer is extended the benefits to property in the district already sewered would cease and no legal right to extend would exist. The city would, in effect, be compelled to build and complete every part of a finished and complete and final sewerage system at the identical instant of time — a thing not possible in practice.

If we presume, as we must, that the Common Council of Kansas City and the Board of Public Works thereof will perform the duties enjoined upon them when those duties shall, by public necessity, become incumbent, we must conclude that at the proper time sewers will be constructed for plaintiffs’ sole be-hoof; which sewers will he paid for by the whole district, and no .hardship to plaintiffs will ensne. We must assume that as the necessity of the case becomes equal to the expenses entailed, sewers will be con-' strncted as such necessity requires, and at the expense of the ivhole district. Indeed, circumstances may be conceived wherein any other view would itself be unreasonable and confiscatory.

As was said touching a similar case, that of St. Joseph to use v. Owen, 110 Mo. l. c. 454: “Circumstances will readily suggest themselves where an ordinance for the construction of a sewer would justly be regarded as most unreasonable, which should require a sewer to be constructed throughout the entire district, regardless of the needs of the district, or whether portions of the same were inhabited, or indeed uninhabitable. We see nothing in the charter requiring us to give it such an extreme construction. The burdens of the taxpayers are not one whit increased by the construction of the character here suggested; he simply pays, as does his neighbor, by the front-foot or ‘area rule,’ authorized by the charter, a rule quite recently approved in the case of St. Joseph v. Farrell, 106 Mo. 437.”

We conclude, therefore, that the assessment of benefits against plaintiffs, whose property is presently benefited by the sewers in question, only in that' some part of the surface water formerly flowing from the dominant estate over the lands of plaintiffs is now diverted through the sewers, cannot be assailed upon the facts in the instant case, for the reason that a contrary view inevitably takes us back to the reasonableness and fairness of the action of the Common Council in establishing Sewer District 305. This matter of establishment of such districts, as we have seen, is intrusted to the common Council by the Legislature, and the settled rule of law in this State is that the action of the Common Council in establishing such districts is not subject to collateral attack. The rule in a large majority of other jurisdictions would seem to be otherwise. [1 Page & Jones on Taxation by Assessment, pp. 896, 902, 980; Ellwood v. Rochester, 122 N. Y. 229; Hamilton on Special Assessments, secs. 602-603.] When we regard the whole of the facts here; when we consider that the boundaries of the district and the area therein cannot be enlarged, diminished or changed by any act of the city; that under the proof, the plan devised was the only féasible one; that the adoption of any other scheme would have been, as to cost thereof, unreasonable and prohibitive; that as plaintiffs’ lots now pay a part of the costs of sewers therein, the benefits accruing to them are negligible; so will the lots of those in the western part of the district be compelled to bear a part of the costs of sewers, from which, in turn, their owners obtain no benefits; can it be said that from such a scheme and system, benefits do not accrue? Is not the vested right to reciprocal contribution, whenever and as soon as sewers are needed in the presently taxed but unsewered part of the district, in itself a benefit within the purview of the rule that no assessment may be made without benefits accruing? But for the provision that after a sewer has been constructed, no change in the district’s boundaries may be made, we would of necessity say that plaintiffs cannot be taxed. With this provision, however, indulging, as we must, the presumption that the Common Council and the Board of Public Works will severally perform their duties rightly, and that these officers will, whenever, by increase of population or by the upbuilding of the district, necessity may require, construct and extend and enlarge the sewers of the district so as to properly care for the lands of plaintiff not now sewered, can we say that the action of the council was unjust, unreasonable, oppressive, or subversive of the rights of plaintiffs? We think not. Any other view, the immutable clause of the charter considered, would, in the last analysis, lead to an absurdity. For convenience, certain parts of the city are, by the best judgment of the Common Council, the city engineers so advising, presumably, cost and outlet and topography considered, found to be adapted for improvements as a unit. The council by solemn ordinance so ordains such territory, for cheapness and convenience of improvement, into a sewer district. If every lot owner must, as a condition precedent to assessment, draw some benefit from every line of sewer, then by the same token some benefit should enure from the laying of each section of sewer pipe. No lateral structures could be built; for any property owner on Car-field avenue might well urge that the main line of sewer down said avenue and into the creek at Forty-fifth street furnished for his property all and sufficient drainage, and no duty in law arose which'required unbenefited property along Garfield avenue to bear any of the assessment for a lateral on Forty-third street, leading from Woodland avenue to Garfield avenue. Garfield, Woodland, Euclid and Michigan avenues are parallel and run in an easterly and westerly direction. Along each of these avenues, either for a part or the whole of the distance, the sewers in question were laid; cross-connecting sewers were also laid, in whole or in part, on Forty-first, Forty-third, Forty-fourth and Forty-fifth streets. All these came together for a common outlet at Forty-fifth street and Garfield avenue. Strictly speaking, any one of the avenues already provided with sewers could have drained independently into the creek, without reference to the other avenues and cross-streets, and if the hard-and-fast rule of no assessments without benefits is to be applied, this method, instead of a cheaper and more feasible one involving a community of interests, should have been adopted. The ultimate noces-sity of a joint-district sewer is shown by the proof. This joint-district sewer will serve the whole district and an adjoining district. Into this joint-district sewer the west lots now partially sewered by the improvements in question, as well as the complaining east lots, will drain; thus establishing a community of interest justifying the act of the council in erecting the territory into a single district, when we consider the question in the light of the other facts, duties and presumptions existing, entrusted and entertained.

The only phase involved here of the absence of “due process of law” under our Constitution being in the final analysis the alleged unreasonableness and oppressiveness of the council’s action in erecting into the sewer district the property of plaintiffs, we hold that plaintiffs

cannot in this manner and at this stage assail this action. [Johnson v. Duer, supra; Heman v. Schulte, 166 Mo. l. c. 417.] If a timely question had been raised as to the alleged unreasonableness and oppressiveness of the action of the council in erecting and establishing the sewer district, so as to include plaintiffs’ lots, by some appropriate proceeding, a different question might be before us. Touching this, however, we. are not called on to pass.

II. Under the law and the facts here, are plaintiffs being assessed without accruing benefits in such wise as to violate section 1 of the 14th Amendment to the Constitution of the United States?

No contention is made by plaintiffs of lack of notice, nor upon the fact can such contention be maintained. Before any district sewer was constructed in the sewer district and before therefore its territory became by charter immutable, notice, daily for ten days, was given by publication in a newspaper, to the effect that on the 11th day of June, 1909, at the hour of 3 o’clock p. m., at the office of the Board of Public Works, a hearing would be had by said board “concerning the proposed improvements, and that any and all property-owners interested in such improvement may then and there, by written petition or otherwise, present their views in respect to the proposed improvement.” The notice also recited the number of the proposed sewer district, the number and date of approval of the ordinance by which the said district was created and established, and the kind of sewers proposed to be constructed, as well as the streets, avenues and alleys along which sewers would be constructed. Ordinance No. 1872, so creating and establishing Sewer District No. 305, and to which specific reference was made in the published notice, set out fully and at length the boundaries of the proposed district, and when taken in connection with the knowledge of plaintiffs as to the situs of their own parcels of land, must have indicated conclusively to plaintiffs khat their lands were included therein.

Setting aside then as not raised, and as not capable of arising, on the facts, the matter of notice and of opportunity afforded for a hearing, was the inhibition of section 1 of the 14th Amendment to the Federal Constitution violated in that, by the assessment made, plaintiffs are deprived of their property without “due process of law?”

In the case of French v. Barber Asphalt Paving Co., 181 U. S. 324, which was an action to enforce a tax bill for paving, the assessment for the cost of which, it was contended, was void as violating the section of the 14th Amendment under discussion, in that the assessment was based on the front-foot rule without regard to benefits accruing, the Supreme Court of the United States said: “It was also said that the class of lands to be assessed for the purpose may be either determined by the Legislature itself, by defining a territorial district, or by other designation; or it may be left by the Legislature to the determination of commissioners, and be made to consist of such lands, and such only, as the commissioners shall decide to be benefited; that the rule of apportionment among the parcels of land benefited also rests within the discretion of the Legislature, and may be directed to be in proportion to the position, the frontage, the area or the market value of the lands, or in proportion to the benefits as estimated by commissioners.”

It was also said in the French v. Asphalt Co. case, supra:

“In Fallbrook Irrigation District v. Bradley, 164 U. S. 112, was involved the validity of the Irrigation Act enacted by the Legislature of the State of California. One of the objections urged against the act was that it permitted the whole cost to be levied by a board of directors of the district upon all of the real estate of the district according to value, with no reference to the degree of benefit conferred. As to this it was said by this court, through Mr. Justice Peckham:
“ ‘Assuming for the purpose of this objection that the owner of these lands had by the provisions of the act, and before the lands were finally included in the district, an opportunity to be .heard before a proper tribunal upon the question of benefits, we are of opinion that the decisions of such a tribunal, in the absence of actual fraud and bad faith, would be, so far as this court is concerned, conclusive upon that question. It cannot be that upon a question of fact of such a nature this court has the power to review the decision of the State tribunal which has been pronounced under a statute providing for a hearing upon notice. The erroneous decision of such a question of fact violates no constitutional provision.”

Clearly the case of Norwood v. Baker, 172 U. S. 269, cited by learned counsel for plaintiffs, is not upon the facts before ns, in conflict with the views above quoted. “That was a case where by a village ordinance, apparently aimed at a sing’le person, a portion of whose property was condemned for a street, the entire cost of opening’ the street, including not only the full amount paid for the strip condemned, but. the costs and expenses of the condemnation proceedings, was thrown upon the abutting property of the person whose land was condemned. This appeared, both to the court below and to a majority of the judges” of the Supreme Court of the United States, “to be an abuse of the law, an act of confiscation, and not a valid exercise of the taxing power.” [French v. Barber A. P. Co., supra, l. c. 344; Norwood v. Baber, supra.] Again in the French-Barber case, at page 342, the court said: “If the Legislature in taxing lands benefited by a highway, or other public improvements, mabes provision for notice, by publication or otherwise, to each owner of land, and for hearing him, at some stage of the proceedings, upon the question what proportion of the tax .shall be assessed upon his land, his property is not taben without due process of law.” Thus, apparently reaching a conclusion upon the question of “due process of law,” under section 1 of the 14th Amendment to the Federal Constitution, stribingly like that already set forth above as having been reached by our own court upon the similar provision of our Constitution. [Meier v. St. Louis, supra; Grist v. Construction Co., supra.]

Bearing in mind the status and effect of the charter of Kansas City, it would seem that the principles enunciated in the case of Spencer v. Merchant, 125 U. S. 345, indicate clearly the position of necessity taben by the Supreme Court of the United States upon questions of local assessments for improvements. In this case the court said:

“ ‘The Act of 1881 determines absolutely and conclusively the amount of the tax to be raised, and the property to be assessed and upon which it is to be apportioned. Each of these things was within the power of the Legislature, whose action cannot be reviewed in the courts upon the ground that it acted unjustly or without appropriate and adequate reason. . . . The Legislature may commit the ascertainment of the sum to be raised and of the benefited district, to commissioners, but it is not bound to do so, and may settle both questions for itself; and when it does so, its action is necessarily conclusive and beyond review. Here an improvement has been ordered and made, the expense of which might justly have been imposed upon adjacent property benefited by the change. By the Act of 1881, the Legislature imposes the unpaid portion of the cost and expense, with the interest thereon, upon that portion of the property benefited which has thus far borne none of the burden. In so doing, it necessarily determines two things, viz., the amount to be realized, and the property specially benefited by the- expenditure of that amount. The lands might have been benefited by the improvement, and so the legislative determination that they were, and to what amount or proportion of the cost, even if it may have been mistakingly unjust, is not open to our review. The question of special benefit and the property to which it extends is of necessity a question of fact, and when the Legislature determines it in a case within its general power, its decision must of course be final.’ ”

If it be insisted (as we do not think it can be successfully done under the charter provision and the facts here), that' a benefit direct and presently in existence must always be shown to accrue, we hold that such benefit was in existence in the instant case. That it was not unreasonable and oppressive for the city through its Common Council, after giving (before the right to alter the district was foreclosed) due notice of a hearing to plaintiffs, and all others interested, to assess against the lands of plaintiffs a part of the cost of the sewers in question npon the solemn charter promise that the sewer district established was unchangeable, and that as the necessities arose other sewers wonld be constructed in the district for the use of plaintiffs and others in the district, at the cost of all of the lots in all the district. This plan, and scheme is but part of a continuing and growing system of constructing and maintaining sewers, and one particularly applicable and necessary on account of the broken topography and rapid growth of Kansas City. 'Indisputably, if the present necessities permitted, it is physically impossible to build all the sewers over all the district at the same time. Some of the territory in this sewer district is but sparsely settled, and much is vacant. If the city had ordered a full and complete system of storm and sanitary sewers to be constructed.over all the streets and alleys of the district, we apprehend this action would not be here. Yet, if this had been done, such action might well be said to be oppressive and unreasonable, the cost and lack of present necessity therefor, considered: The present plan we must presume to have been the result of honest, careful judgment on the part of the city’s officers. We must, prima facie, presume that they acted rightly, and we must presume that in the future they will so continue to act, and that they will promptly do and perform their several duties under the charter of the city. [Gist v. Construction Co., supra.] If they thus do, and follow the charter’s provisions, the assessments set forth in the tax bills are but in a sense instalments paid on a comprehensive system of- sewerage made necessary by the exigencies existing.

Cases cited from other jurisdictions by learned counsel do not seem to have had under consideration the feature of immutability of area and boundary of the sewer district arising here. Be that as it may, to hold the tax bills in question invalid, under the fact's here and upon the attack here, would be but to hinder and stilt improvements, without adding in the least to fairness or justice; since plaintiffs in the honest and fair working out of the system of sewerage adopted, are in no wise hurt,' or taxed out of proportion to their ultimate benefits.

We rule the last point and the whole case against appellants, and hold that affirmance should be ordered, which is done accordingly.

All concur.