author: WALKER, J. WOODSON, J. PER CURIAM: BOND, J.

text:
    THE STATE ex rel. UNITED RAILWAYS COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION.
    In Banc,
    March 24, 1917.
    1. PUBLIC SERVICE COMMISSION": Powers: Limited by Constitution. Despite the fact the statutes of other States creating public service commissions and defining .their powers may be similar to and are often identical with our own, in construing the Missouri act little aid is afforded by the decisions of such States, since their organic laws are different from ours, and- our legislative acts are restricted by plain constitutional -provisions.
    2. -:-: To Direct Construction of Street Railway. The Public Service Commission has no power to order an existing private corporation to apply to a municipal authority for a franchise to construct and operate a street railway in the public streets of a city.
    3. *-: -: -: Consent of City. Since the Constitution (Art. 12, see. 20) prohibits the General Assembly from enacting a law granting the right to construct and operate. a street railroad in any city “without first acquiring the consent of the local authorities having control of the street or highway proposed to be occupied by said street railroad,” the Public Service Commission has no power, although a statute attempts to authorize it to do so, to order a private company, operating a street railway on certain streets of a city, to apply to the municipal authorities for a franchise to construct and operate a street railway on other streets.
    4. -: -: -: -: Source of Power. The source of the power to consent to the construction of a railway on a public street is the local authorities; the language of the constitutional provision (Art. 12, sec. 20) is not directed solely to corporations seeking the privilege to construct and operate a street railroad; a condition precedent to the validity of a statute authorizing such use of-a public street is that the consent of the local authorities be first obtained.
    5: —-; -: -: Exceptions to Constitutional Inhibition. Modifications in the application of a constitutional provision are permissible only in the presence of clearly defined exceptions, and where such are neither expressed nor implied neither courts nor the General Assembly have any authority to make them.
    6. -: -: --: -: Legislative Modification. In a conflict between the Constitution and a statute the latter must yield. Subsequent legislation cannot modify the Constitution.'
    7. -: -: Consent: Compulsion: By Indirection. Consent such as the law recognizes cannot be the subject of compulsion. Its existence depends on the exercise of the voluntary will of those from whom it is obtained. The Public Service Commission cannot by an order directing a private corporation to extend its railway tracks upon unoccupied public streets and to obtain within thirty days the permission of municipal authorities to do so, compel, in this indirect' way, said authorities to consent to such extension.
    8. -: - — : Statute Restricted to Constitutional 'Limitations. It will not be presumed that the Legislature intended to enact an invalid law. The extensive powers given by section 49' of the Public Service Act, Laws 1913, p. 588» to the Commission to order a street railway to construct additional tracks and make such changes, improvements and additions as may promote the security and convenience of the public or secure adequate service or facilities for the transportation of passengers, are to be construed as subservient to and in harmony with the constitutional provision forbidding such extensions until the municipal authorities consent to such construction, and not as authorizing the Commission to order the railway company to take the initiative in procuring the required consent.
    9. -: -: Scope of Statute: Incidental Facilities. The Public Service Commission has power to order the construction of such sidetracks, switches, cross-overs and terminals as are incidental to tbe operation of tbe main lines of an existing railway corporation; but the Legislature has no constitutional authority, and hence the Commission is not empowered, to compel such corporation, in the absence of authority in its charter, to enter new territory by the extension of its lines of railway upon other public streets.
    10. -: -; St. Louis Charter: Statute Paramount. Under the provision of the Constitution authorizing the city of St. Louis to frame and adopt a charter for its own government, the city did not acquire the right to assume all powers the State may exercise within the city limits, but only those incident to it as a municipality or which concern matters of purely local government.
    11. -: -: -: Control of Public Utilities. The provisions of the present St. Louis charter which attempt to vest in the Board of Aldermen full power to regulate the construction, operation, charges and facilities of a public utility, not being a matter of purely local or municipal concern, must yield to the paramount authority of the statute investing such regulation in the Public Service Commission.
    12. -: -: Abandonment of Franchise'by Non-User. The right or franchise granted to a company to build a railway on a named street, unused for twenty-four years, is to be considered as abandoned by the company; and the Public Service Commission is not authorized by reason of the original grant to direct the company in regard to its exercise. [On Motion to Modify Opinion.]
    13. -: -: -: Judicial Forfeiture. The consent of the city to the occupancy of its streets by a railway company is not technically a contract, but a privilege or license, and being such and being unused for such a length of time as to constitute an abandonment, a judicial proceeding to effect its .forfeiture is not necessary. [On Motion to Modify Opinion.]
    Appeal from St. Louis City Circuit Court. — Hon. George H. Shields, Judge.
    Reversed .and remanded (with directions).

      Boyle & Priest and William E. Baird for appellant.
    (1) The Constitution provides that the privilege of operating a street railroad shall he acquired by securing the consent of the local authorities and this is the only manner in which such privilege can lawfully be acquired. Mo. Constitution, art. 12, sec. 20; Grand Ave. Railroad v. Lindell Railroad, 148 Mo. 637; State ex rel. v. Lindell Railroad, 151 Mo. 162. (2) While this consent may impose upon the grantee duties which are essentially public, it creates a relation ■which, in many respects is wholly contractual between the street railroad and the city as a corporation. Springfield Railroad v. Springfield, 85 Mo. 674; State ex rel. v. Railroad, 85 Mo. 282; Railroad v. Kirkwood, 159 Mo. 252; Cleveland v. Electric Co., 201 U. S. 529. (3) In the city of St. Louis this consent can be given only by ordinance and an acceptance by the street railroad; this is purely a legislative act, the city acting as the delegated agent of the State. City Charter, art. 1, .sec. 1, clause 12; Railroad v. Railroad, 148 Mo. 645; State ex inf. v. Railroad, 151 Mo. 183; Township v. Railroad, 130 Mich. 363; People ex rel. v. Railroad, 178 111. 594; State v. Railroad, 51 Kan. 609; Railroad v. Brown, 97 Va. 26; City v. Railroad, 95 Mich. 456. (4) The power of the commission is limited to the regulation of the service afforded and which may be-afforded under existing franchises ; it has no power to grant the privilege to operate or to compel a street railroad to make a contract with the city. Pub. Ser. Comm. Law, sec. 49; Towers v. Pub. Ser. Comm., 95 Atl. 170; Railroad v. Dustin, 142 U. S. 492; Pub. Ser. Comm. v. Railroad, 89 Atl. 726; Laird v. Railroad, 88 Atl. 347; Railroad v. Towers, 94 Atl. 330; Railroad v. Willeox, 94 N. E. 212. (5) The regulation of rates charged by a public utility as well as the character of service afforded by it under existing franchises is a matter of general State concern. State ex rel. v. Telephone Co., 189 Mo. 83; Dillon, Mun. Corp. (5 Ed.) sec. 63. . (6) The charter provision purporting to give this power to the city, being in conflict with the State law on the same subject, is unconstitutional and void. It was not competent for the city to make such provision in its charters. State ex rel. v. Court, 120 Pac. 861; Elec. Co. v. Seattle, 206 Fed. 955; Power Co. v. Grant’s Pass, 203 Fed. 173.

      Alex. Z. Patterson and James D. Lindsay for respondent.
    (1) The legislation embodied in the Public Service Commission Act and the finding and order of the Commission in the instant case constitute an exercise of the police power of the State, which is never to he abridged, or so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals, or the general well-being of the State. Constitution, art. 12, sec. 5; Public Service Commission Act, Laws 1913, and especially section 47, subdivision 2, and sections 49 and 127. (2) The finding of the Public Service Commission in this case is a determination of the coexistence of the conditions prescribed by the legislative power, as authorizing the direct exercise of -that portion of the police power of the State delegated to the Commission, and expressed in .its order, in this proceeding. Public Service Comm. Act, Laws 1913, sec. 49; Lime Co. v. Railroad Comm., 144 Wis. 523; Florida v. Railroad, 56 Fla. 617, 32 L. R. A. (N. S.) 639. It is not necessary to decide whether the Legislature, by the Public Service Commission Act, delegated either judicial or legislative power, or neither of them, to the Public Service Commission. The Commission was empowered by said act to ascertain whether certain specified conditions exist in- a given case, and to act upon the same pursuant to a prescribed method, and in accordance with the conditions found to exist. Monongahela Bridge v. United States, 216 U. S. 177; Railroad v. Taylor, 210 U. S. 281. (3) The Public Service Commission of Missouri has the ■ power, having found the coexistence of the required conditions, to order the Railways Company to make extensions of its lines in the city of St. Louis, and to extend and operate such lines upon streets not covered by existing franchises, subject, however-, to the concurrent constitutional right of the authorities of said city, to withhold consent to the use by the company of such streets, or to grant such use upon conditions; such conditions to be consistent with the powers possessed by the city, local, and incidental to its government as a municipality only, closely appurtenant to such constitutional right, and not violative of, but “subject to, and in harmony with,” the general and paramount police power of the State. Public Service Commission Act, Laws 1913; Constitution, secs. 5 and 20, art. 12, and secs. 20, 21, 22, 23, 25, art. 9; State ex rel. v. Telephone Co., 189 Mo. 83; State ex rel. v. Stobie, 194 Mo. 14; Railroad v. State, 29 Okla. 640; Griffin v. Railroad, 150 N. C. 312; Dewey v. Railroad, 142 N. C. 392; State v. Railroad, 164 S. W. 491; Railroad Comm, v. Railroad, 185 Ala. 354, L. R. A. 1915-D, 98. (4) The power granted to the Public Service Commission to order public service corporations to make extensions, additions and improvements in plants, and in service, carries with it, by implication, the power to require all those intermediate things to be done, which are reasonably necessary for the accomplishment of the ultimate object. Railroad v. State, 29 Okla. 640; Railroad Comm.' v. Railroad, 185 Ala. 354; State v. Railroad, 164 S. W. 491;. Railroad v. Jacobson, 179 U. S. 287, 302; Railroad v. Minnesota, 186 U. S. 257-260; Griffin v. Railroad, 150 N. C. 312; Atlantic Coast Line v. Corporation Comm., 206 U. S. 1-27; Staton v. Railroad, 147 N. C. 428; Mayor v. Railroad, 109 Mass. 103; Railroad v. Railroad Comm., 231 U. S. 457; Railroad & N. Co. v. Fairchild, 224 U. S. 510. (5) The Railways Company was chartered by the State for the purpose of voluntarily acquiring, constructing and operating street railways, for public use, in the conveyance of persons and property in the city of St. Louis, with the consent of the said city, and with the reserved right in the State to alter and amend such charter in such manner, and to such extent as might be necessary for the well-being of the State; and, under this reserved right to alter, and amend, and to prescribe and impose duties from time to time in accordance with changed conditions, the State has the right to require the Railways Company to' take those steps, necessary to be taken, to extend its transportation facilities for the public use,' and for the satisfying of the public needs in the city of St. Louis. Sec. 5, art. 12, Constitution; Shields v. Ohio, 95 U. S. 319-324; Railroad v. New Haven, 203 U. S. 379-388; Stanislaus Co. v. Canal and Irrigation Co., 192 U. S. 201; and authorities cited under points 3 and 4. (6) The new charter provisions of the city of St. Louis undertaking to give the city power to compel street railways to make extensions, being out of harmony and inconsistent with the general laws of the State, are invalid. The power of consent or denial that may be exercised by the city, to the. application of the Railways Company, partakes less of contractual than of governmental power. The court will not presume that the city will deny the application of the company, or that it will attempt to make its consent thereto dependent upon conditions inconsistent with the Constitution and general laws of the State. Sec. 23, art. 9, Constitution; Public Service Commission Act, Laws 1913; Hayes v. Railroad, 111 U. S. 228.
   WALKER, J.

— In April, 1914, complaints were filed with the Public Service Commission praying that an inquiry be made into the character of service rendered by the United Railways Company of the city of St. Louis. The specifications in said complaints were comprehensive and embraced many phases of street railway service. The Commission, after hearing evidence and making such other investigations and inquiries as it deemed proper, made an order, set forth under six headings or subdivisions. The first, third and fourth related to the manner in which the Railways Company was to operate, manage and conduct its cars; the fifth and sixth prescribed the time and manner of the company’s acceptance and compliance with the order; and the second required the company within a specified time to apply to the city authorities for permission to ■ construct and operate certain extensions of the company’s system as designated in the order. The company form-, ally expressed its willingness to comply with the order except as required by the second subdivision, which is as follows:

“Ordered 2nd, That the United Railways Company, defendant herein, be and it is hereby directed and required to make application, within thirty days from the effective date of this order, to the proper municipal authorities of the city of St. Louis, Missouri, for the necessary franchises, permits and authority, and to the property owners for the necessary consents, authorizing said defendant company to construct all of the following sections of track, and that the construction of all of said tracks, which may he so authorized, shall be made within the time herein specified.”

Following this the particular lines of the company required to be extended are designated and the times prescribed within which each extension is to be made. Upon the promulgation of this order the company filed a motion for rehearing, and upon its denial made application to the circuit court of the city of St. Louis for a writ of review to determine the validity of that portion of the order to which objection had been made. The circuit court sustained the order of the Commission and the company appeals.

While the proceedings were pending before the Commission the city of St. Louis adopted a new charter, which ‘provides that the city shall have power to regulate rates, quality of use, service and products and methods of conduct and operation of public utilities and at certain times to buy the plant and property of such utilities; and to compel from time to time reasonable extension of facilities for such service. [Sec. 1, art. 1, and sec. 2, art. 19, Charter of St. Louis.]

There is no controversy as to the facts or the regularity of the proceedings and the parties stipulate that the only issues are questions of law, viz., (1) the power of the Commission to order the Railways Company to apply to the municipal authorities of the city of St. Louis for franchises to operate a street railway or extensions thereof in the public streets of said city, and (2) the constitutionality of that portion of the charter of said city authorizing a municipal regulation of public utilities as therein prescribed.

I. Acts creating public service commissions and defining tbeir powers are comparatively new ventures in legislation. Their newness, coupled with their comprehensive character, usually co-extensive with the State, has, . as is usual with new laws, caused frequent applications to be made to the courts to secure their construction. This has been especially true in regard to the Missouri law, although it was but recently enacted. Despite this fact, the vexed questions here have not received judicial interpretation, and, except by analogy, little aid is to be derived from the construction given to statutes of'this character by courts of last resort in other jurisdictions. The statutes may be, and often are, similar to, if not identical with, our own. But the 'organic laws of these states are different from ours. In construing our own statute, therefore, the plain limitations of our Constitution must, in conformity with one of the elementary rules of construction, always be kept in mind. It is appropriate in this' connection that the provision of our Constitution applicable in the construction of the statute here under review should be quoted. It is as follows:

“No law shall be passed by the General Assembly granting the right to construct and operate a street railroad in any city, town, village or on any public highway without first acquiring the consent of the local authorities having control of the street or highway proposed to be occupied by said street railroad and the franchises so granted shall not be transferred without similar assent first obtained.” [See. 20, art. 12, Constitution of Missouri.]

The pertinent parts of the Public Service Act, under which the Commission is seeking to exercise the power here complained of by appellant, is as follows:

“If in the judgment of the Commission, additional tracks, switches, terminals or terminal facilities , . . or any other property, construction, apparatus, equipment, facilities or device for use by any . . . street railroad corporation in or in connection with the transportation of passengers . . . ought reasonably to be provided, or any repairs or improvements to or changes in any thereof in use ought reasonably- to be made, or any additions or changes in construction should reasonably be made thereto in order to promote the security or convenience of the public . . . or in order to secure adequate service or facilities for the transportation of passengers . . . the Commission shall, after a hearing, . . . make- and serve an order directing such repairs, improvements, changes or additions to be made within a reasonable time and in a manner to be specified therein, and every . . '. street railroad corporation is hereby required as directed to make all' repairs, improvements, changes and additions required of it by any order of the Commission served upon it . . .” [Sec. 49, Public Service Commission Act, p. 588, Laws 1913.]

The constitutional provision quoted is definite in its terms; discussion as to its purpose would therefore seem superfluous. Under ordinary circumstances little or no question can arise as to the uses and purposes of streets and public highways; and the wisdom in confiding their supervision and control to local authorities, being evident, need not be commented upon. The Constitution hut gives affirmative recognition to these facts. However, the enactment of the statute creating the Public Service Commission to effectuate its purpose in the supervision of public utilities, among others street railways, has, under section 49, supra, given or attempted to give certain powers to the Commission over streets and highways. The extent of this power under the Constitution is the matter here to be determined. While recognizing the rule that constitutional limitations upon legislative action must be construed in favor of the power of the Legislature- and he either expressly declared or clearly implied (State v. Wilson, 265 Mo. 1), it must also he borne in mind that when so expressed or implied they are to be construed as mandatory rather than directory (State ex rel. v. Hitchcock, 241 Mo. 433) and consequently exclusive in their terms.

It not infrequently occurs that words employed in a constitution or statute are so clear and explicit that an attempt to define them serves but to confuse rather than enlighten. The words “construct” and “operate” as employed in the constitutional provision under consideration are illustrative of this truth. We therefore hazard no further comment as to their meaning and application than to say that to construct as here used means to build upon‘the street or highway, whether by initial location or extension; and to operate means to use for the purposes of the construction.

The constitutional provision plainly requires as a prerequisite to the enactment of a valid statute for the construction and operation of street railroads that the consent of the local authorities therefor he. first acquired. While the language employed in the Constitution, if literally construed, may be held to be directed only to corporations seeking the privilege to construct and operate such public utilities, a reasonable construction of the provision will not justify this limitation upon its meaning; its purpose is not so much to limit the power and define the course to be pursued in securing the right to construct and operate as it is to declare where the power rests which is necessary to he invoked before the rights sought are granted.

The source of this power, viz., the local authorities, having been defined, the terms under which it is granted authorize the conclusion that it is absolute. It is a general rule, applicable here as elsewhere, that constitutional provisions are mandatory; their prohibitions and injunctions must therefore be obeyed. [State ex rel. v. Hitchcock, 241 Mo. 433; 8 Cyc. 762, and cases.] This being true, it is immaterial, so far as the application and extent of the power is concerned, whether the statute enacted in relation thereto he simply permissive, as is usually the case, or mandatory, as in the instant case; a condition precedent to the validity of the statute in any case is that the consent of the local authorities be first obtained. To obviate the application of the Constitution to the statute and as a consequence render the order of the Commission effective, it is contended by respondents that the statute is either not within or is excepted out of the limitation of the Constitution. The words employed in the Constitution are general and include within their terms any law enacted by the General Assembly in regard to the construction and operation of street railroads. The only limitations are in the designation of the particular class of utilities referred to and the places where they may be constructed and operated. Modifications in the application of the constitutional provision are permissible only in the presence of clearly defined exceptions. We find these neither expressed nor implied and we are consequently not authorized to make them. Subsequent legislation cannot modify the Constitution. It is elementary that in a conflict between the Constitution and a statute the latter must yield. [State ex rel. v. Wabash Railroad Co., 251 Mo. 134; State ex rel. v. C. B. & Q. Ry. Co., 251 Mo. 146.] The creation, therefore, of the Public Service Commission since the adoption of the Constitution and the clothing of it with comprehensive and plenary power in the regulation and control of- all public utilities will in no wise modify the course defined by the Constitution as necessary to be observed in the establishment or extension of street railroads.

The purpose of the order here sought to be enforced is to require, the appellant to extend its road; that this is sought to be accomplished by indirection is not material ; the resultant effect is the same. The order, while not directly requiring the appellant to make the extension, does require it to procure the consent of the proper authorities that (using the language of the order) “the construction of all of said tracks which may be so authorized shall be made within the time herein specified.” The purpose of the order is therefore evident, although it is mandatory more by inference than express declaration. Plowever this may be, the very words of the order carry with them a concession that consent is a prerequisite to its , enforcement. Consent such as the law recognizes cannot be the subject of compulsion; its existence depends upon the exercise of the voluntary will of those from whom it is obtained. It is well said in a South Carolina case (Gray v. Walker, 16 S. C. 143) that consent “implies an agreement to that which, but for the consent, could not exist,' and which the party consenting has the right to forbid. ” It is even more graphically stated in a Kansas case (Locke v. Redmond, 6 Kan. App. 76) where it is said that consent “supposes physical power to act, a moral power of acting, and a serious, determined and free use of these powers.” The order, therefore, no matter how mandatory may be its terms, is self-limiting. If, as a prerequisite to its enforcement, the appellant be required, as he is, to secure the consent thereto of the local authorities, and after reasonable effort fails, the order becomes inoperative and loses whatever characteristics it may have had, on its face, as a mandate, because it is incapable of enforcement without the precedent procurement of the necessary consent. A permissive order, such as here seeks judicial sanction, is a contradiction in terms and is unknown to the law. A mandatory order is burdened with no modifications and emanates from a source having power to enforce it. Lacking these essentials it is a mere nullity.

This is not true of the remainder of the order made by the respondents, to which appellant has given compliance; its terms are well within the broad and full power given respondents to regulate and control public utilities, which power, so far as exercised, has not contravened any constitutional provision.

Holding, as we do, subdivision 2 of the order to be inoperative for the reasons stated, it has not been deemed necessary to discuss the question as to whether or not the attempted enforcement of said subdivision involves the -making of a contract; nor does the extent of the police power of the State enter into the question when the attempted exercise of the same would result in a violation of the organic law.

In the discussion of the question as to the binding force of subdivision 2, we have proceeded upon the assumption that section 49 of the Public Service Act, which we have quoted, is sufficiently comprehensive to authorize the order for the enforcement of said subdivision, provided same had not been obnoxious to the Constitution. An analysis of said section renders it questionable whether it can be fairly given that construction. "While it provides that the Commission may order, for example as applicable to this ease, a street railroad, to construct additional tracks and make such changes, improvements and additions as may “promote the security and convenience of the public ... or secure adequate service or facilities for the transportation of passengers,” these powers are to be construed as subservient to and in harmony with the organic law, for it will not be presumed that the Legislature intended to enact an invalid statute. [Lumber Co. v. Mo. Pac. Ry. Co., 216 Mo. 658; State v. Fawcett, 212 Mo. 729.] A more reasonable construction is that while said section is very broad and contemplates the exercise of many powers in regard to the control of public utilities not heretofore granted, the exercise of these powers was intended to be limited to directing that to be done by the public utility which it is authorized to do under its charter and not that it be compelled, as a prerequisite to a compliance with the order, to procure from the State other rights than those already granted. [Towers v. United Rys. & Elec. Co., 95 Atl. (Md.) 170.]

That the Public Service Commission has ample power to order the construction of such sidetracks, switches, cross-overs and terminals as are purety" incidental to the operation of main lines is not questioned; but the Legislature has no constitutional authority, did not intend, and hence the Commission is not empowered, to compel public utilities, in the absence of authority in their charters, to enter new territory by the extension of their lines of roads.

Furthermore, the Public Service Commission, being a creature of the statute, can only exercise such pewers as are expressly conferred on it; and the statute conferring such powers, to authorize action thereunder, should clearly define their limits. Nothing should he left to inference or seek refuge in implication or the exercise of a discretion. The language of the New York Court of Appeals in People ex rel. v. Willcox, 200 N. Y. l. c. 431, 94 N. E. l. c. 215, is apposite in this connection; that: “The public service commissions were given extensive powers; hut they should not be extended by implication beyond what may he necessary for their just and reasonable execution. They are not without limits, when directed against the management, or the operations, of railroads, and the commissions cannot enforce a provision of law, unless the authority to do so can he found in the statute. . . . Nor should they reach out for dominion over matters not clearly within the statute.” Under this rule we hold, in addition to the other reasons urged against the operative force of that part of the order under consideration, that the terms of section 49 are not sufficiently definite and explicit to empower respondents to order the appellant to take the initiative in procuring the required consent to authorize the extension of its road 'and that it was not só intended by the Legislature.

II. The validity of certain sections of the charter of the city of St. Louis is assailed as being in conflict with the Public Service Act. These sections, so far as pertinent to this inquiry, are as follows:

.That the city shall have power “to regulate the construction, maintenance, equipment, operation, service, rates and charges of public utilities, and compel, from time to time, reasonable extensions of facilities for such service. ” [Clause 13, sec. 1, art. 1, Charter, City of St. Louis.]

“The Board of Aldermen shall at all times have full power, to-be exercised by ordinance, over all public utilities now or hereafter existing in the city, and may regulate the charges for the use, service or product thereof and establish whatever requirements may be necessary to secure efficient use, service or products, and no terms or conditions contained in any grant shall limit or impair this power.” [Sec. 2, art. 19, Charter, City of St. Louis.]'

While not material to the validity of these sections, it is a matter of historical interest that they were adopted as a part of the new charter of the city of St. Louis which became operative about two years after the enactment of the Public. Service Act. The purpose of the latter was to provide a uniform system throughout the State for the regulation and control of public utilities, and to create and establish a board clothed with ample administrative powers to investigate, hear and determine all-matters concerning the conduct and management of such utilities, whether complaints in regard thereto were submitted by the representatives of the latter or their patrons. In thus providing by a State law a means whereby all questions of the character referred to might be heard and determined, it was evidently contemplated by the Legislature that local regulations, such as municipal charters and ordinances adopted for a like purpose as the State law, should, upon the enactment of the latter, become thereby superseded or abrogated; or, if adopted later than the State law, that they should be inoperative and void, otherwise confusion and the consequent defeat of the purpose of the statutes would result from conflicts of authority which would inevitably arise. While the freeholders in certain municipalities, for example the city of St. Louis, may, under the express authority of the Constitution (Sec. 16,# art. 9), frame and adopt a charter for their government, they do not thereby acquire the right to assume all powers the State may exercise within its limits, but only those incident to it as a municipality or which concern matters of purely local government. Judge Dillon (Mun. Corp. [5 Ed.], sec. 63), in discussing the rule as above announced, says in effect: “While a city may frame a charter for its government as a city, including all that is necessary to its conduct and management as a municipality, it does not thereby incorporate into its government all the power the State has for the protection of the rights and the regulation of the duties of the inhabitant's of such city as between themselves.”

We have' several times given express approval to this rule, notably in State ex rel. v. Telephone Go., 189 Mo. 83, where, in defining the meaning of the Constitution in providing that certain cities may frame charters for their own government, we said that “this provision is to be limited as stated in the foregoing rule,” and, further elaborating the application of the doctrine, declared that the Constitution does not “confer unlimited power on the city to regulate by its charter all matters strictly local, for there are many matters local to the city requiring.governmental regulation, which are foreign to the scope of municipal government. In none of the cases that have been before this court bringing into question the charters of St. Louis and Kansas City under the Constitution of 1875 (Sec. 16, art. 9) have we given to the constitutional provision any broader meaning than above indicated.” (Citing many Missouri cases.)

The power of the freeholders of the city of St. Louis in framing and adopting the present charter must be held, when properly exercised, to have been limited as in the rule stated. The control a-nd management of public utilities had then been provided for by the Public Service Commission Act; and such control was not a matter of purely local or municipal concern, but one subject to the State legislative will. The power having been thus classified and defined, the attempt of the framers of the charter to also provide for such control constituted an unwarranted invasion of a province clearly within the purview of the State. In so far, therefore, as clause 13 of section 1 of article 1 and section 2 of article 19 of the present charter of the city of St. Louis attempt to provide for the regulation of public utilities for the management and control of which express provision has been made in the Public Service Act, such clause and sections of said charter are declared to be inoperative and of no effect.

In consequence of the foregoing conclusions the 'judgment of the circuit court is reversed and remanded with directions that it enter a judgment setting aside and annulling the order herein, of the Public Service Commission.

All concur; Blair and Williams, JJ., in paragraph two and in the result.

WOODSON, J.

(concurring) — I fully concur in the opinion filed in this case, except as to that part of it which I understand holds that section 49 of the Public Service Commission Act, page 588, Laws 1913, empowers the Commission to order the company to construct and operate new and additional main lines of street railroads, - as distinguished from what are generally designated ás switches, side tracks, cross-overs and terminals, which 'are used in conjunction with main lines, to assist and facilitate the transportation of passengers over main lines the company has voluntarily constructed. Such side tracks, etc., are purely incidental to the operation of the main lines, and the Commission has and should have full and ample power to compel their construction; but I do not believe the Legislature intended or has the constitutional authority to compel the company, in the absence of an agreement by charter, or otherwise, to go into new territory and construct new main lines and operate cars over them for the transportation of passengers. That would compel the company, against its will, to invest its means in the construction of lines and conduct a transportation business, perhaps at a dead loss from start to finish. I can conceive nothing which would be more hazardous to capital than that, or which would more completely deprive a person of his property without his consent or without due process of law.

T might be perfectly willing to construct a railroad from Jefferson City to Columbia, and operate cars over the same for the transportation of freight and passengers, but that .is no reason why I should be compelled to extend the road north and west to the Iowa line for the same purposes; the former might be a good and paying investment, while the latter might he a bad investment and a dismal failure.

I know of no law or morals which require anyone to invest his means in a new business enterprise; but where he owns a public franchise of course he should be required to so use it as to yield the greatest good to the public, consistent with earning a reasonable remuneration on the investment.

For the reasons stated, I concur in the result.

ON MOTION TO MODIFY OPINION.

PER CURIAM:

— The right to build a street railroad on Lee Avenue may be conceded to have been granted to the predecessor of the United Railways Company, as well as the right of the former to transfer its franchise to the latter company. This latter right is authorized under the 8th subdivision of section 3316, Revised Statutes 1909. The question confronting us here, however, is how long does this privilege or right continue? It was granted to the original company in April, 1892, and in April, 1893, the right was extended, no limitation being stated in the ordinance of extension. Almost twenty-four years have therefore elapsed since the extension of the right, 'and yet the attitude of the company holding the same has been one of complete inactivity. Under this state of facts is the presumption authorized that the company has abandoned its purpose of extending its line, and if this be true, can it, after the expiration of the period of time stated, now exercise the right originally conferred? If it cannot enforce this right, then it does not exist; and if it does not exist the Public Service Commission should not now be authorized by reason of the original grant to direct the railroad company’s conduct in regard to said street as the Commission is empowered to do cpncerning any other operative portion of the company’s franchise. Under the common law an easement may be lost by nonuser in twenty years. [3 Bl. Com. 262; Given v. Wright, 117 U. S. 648.] We need not concern ourselves as to ■whether or not judicial action is necessary to render operative the forfeiture or loss of the right of the corporation to occupy the street, because the determination of the question here under consideration does not involve the forfeiture of the company’s charter or all of its franchises, but simply one of same, or a right granted under such charter. It may be conceded that a judicial forfeiture is necessary if the right to exercise the charter be involved, but the consent of a municipality to the occupation of its streets by a railroad company, while involving a grant of power to the railroad company and the right to exercise such power when granted, is not technically speaking a contract, but is in the nature of a privilege or license extended to the company so as to secure facilities for the accommodation and convenience of its citizens. [G. C. Ry. Co. v. G. C. S. Ry. Co., 63 Tex. 529; Chicago City Ry. Co. v. People ex rel. Story, 73 Ill. 541.] The right must of course be based on a charter, but it is but one of the rights granted thereunder. This being true, the conclusion is authorized that the failure by the corporation to exercise this right may be lost through lapse of time, and that a judicial forfeiture necessary when the existence of the charter is involved is not necessary in a case of this character to render the particular forfeiture effective. A ruling illustrating the correctness of this conclusion is to be found in the case of Oakland R. R. Co. v. Railroad, 45 Cal. 373, where a corporation was granted the right to construct and operate a railway in the streets of a city, but the work was to be commenced within six months and completed within five years, otherwise the privileges were to cease and be forfeited. The work was not commenced or completed within the time specified. Thereafter the right to use the street for like purposes was granted to another corporation; a contest arising between the two corporations, the former was held to have forfeited its franchise and a judicial proceeding to effect that end was not held to be necessary. A like ruling under a similar state of facts is to be found in N. Y., H. & N. R. R. Co. v. Boston, H. & E. R. R. Co., 36 Conn. 196; In the Matter of Brooklyn, W. & N. Ry., 72 N. Y. 245, and In the Matter of Kings County Elevated Ry. Co., 41 Hun, 425. Our own court, in State ex inf. Jones v. Light & Development Co., 246 Mo. 618, where the grantee . of the franchise was authorized to place wire, tubes and cables conveying electricity for the production of light and power along the streets, alleys and public pla'ces of the city of St. Louis, failed for a long period of time to exercise its rights under said franchise, the same was held to be a wilful non-user and a practical abandonment of any rights granted thereunder, In the subsequent case of State ex inf. v. West End Light & Power Co., 246 Mo. 653, it was held that the law will be strictly construed as against the existence of the particular franchise and in favor of the public, and that where it is shown that the company'has made no effort to exercise the franchise for twenty years after the granting of same, such non-user works a forfeiture. These cases, however, were proceedings in qiio warranto.

Despite the fact that these rulings were rendered in cases in which judicial action was invoked to forfeit the franchises, they constitute persuasive arguments in favor of the conclusion that when the facts, as in the instant case, involve the right to use the street, Lee Avenue, for the purpose of a street railway and same has not been exercised by the railway company for the period of time stated, the right cannot be enforced by the company and the converse of the proposition must be true, that the Public Service Commission is not authorized to enforce action by the railway company.

That the right of the Commission to direct the action of the railway company under its original grant to construct its road upon Lee Avenue does not now exist finds support by analogy in our ruling in State ex rel. v. Associated Press, 159 Mo. 410. This was an application for a writ of mandamus to compel the Associated Press to grant relator certain privileges which had been possessed under its charter by the respondent. In ruling upon the right of the relator to the writ, we held that whatever power the respondent had possessed under its franchise in regard to the matter in question, it had abdicated or lost same through non-user and hence the writ was denied. The motion, therefore, to modify- the opinion is overruled.

BOND, J.

(concurring in-Per Curiam Opinion).— Whether the Railways Company -had abandoned its franchise by twenty-four years of non-user, was a judicial question (State ex rel. v. Railway Co., 140 Mo. l. c. 552; Roanoke Inv. Co. v. Railroad, 108 Mo. l. c. 64) which it was not the. province of the Public Service Commission to determine. Hence that body had no authority to direct the- appellant under the circumstances! disclosed <by the record, to begin work anew' under the fra-nchisé granted to its predecessor in April, 1892, and its order to that effect was properly set aside in the original opinion. Wherefore there is no merit in the motion for a rehearing.


source: Caselaw Access Project

author: BOND, P. J.

license: Public Domain

text:
    BAMBRICK BROTHERS CONSTRUCTION COMPANY v. SEMPLE PLACE REALTY COMPANY; J. DENNISON LYON, Trustee, et al., Appellants.
    Division One,
    March 30, 1917.
    1. SPECIAL TAX BILL: Sewer District: Description by Parcels Instead of by Entire Enclosure. Where the charter provided for the issuance of a “special tax bill against each lot or parcel of ground in the joint sewer district, giving the name of the owner,” and declared that “the word ‘lot’ as used in this section shall be held to mean the lots as shown by recorded plats of additions or subdivisions, but if . the owners of property have disregarded the lines of 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,” -tax bills which describe the property by subdivisions and boundaries according to the recorded plat are not void, although the area (Semple Place) covered by the plat has been sold as a body under a prior deed of trust, if there is substantial evidence that there were “parcels of ground” subtantially commensurate with the subdivisions outlined in the recorded plat and that they had been so treated by the owners; and there being substantial evidence to support the finding of the trial court on the question, it is not for review on appeal.
    2. CONSTITUTIONAL LAW: Statute Applicable to Only One City. A classification according to population which applied at the time of its enactment and up to the present time to only one city, does not render the statute unconstitutional.
    3. -: Notice of Suit: Filing With Comptroller. Sections 9848 and 9849, Revised Statutes 1909, requiring notice of suit brought on a special tax bill to be filed within ten' days with the city comptroller, and declaring that unless such notice is filed and suit is brought within two years the lien shall cease, do not condition the right to sue, or to maintain the suit after its institution, upon the filing of said notice. All legitimate objects of the notice are subservedif it is filed before the trial and the expiration of the lien.
    4. ATTACHMENT: Abatement: Entrance of Appearance: Special Tax Bills. The judgment should not sustain an attachment sued out in the action on a special tax bill on the ground of non-residence, or adjudge the costs of the attachment against the defendant, if he enters his personal appearance to the action.
    Appeal from St. Louis City Circuit Court. — Eon. James ' E. Withrow,- Judge.
    Affirmed (conditionally).

      C. R. Skinker for appellants.
    (1) The trial court erred in rendering judgment for plaintiff on the bills, and overruling appellants’ motions for new trial, because the city had no power to assess according to the Semple Place plat, and to divide the land according thereto, for the reasons: (a) The definition of “lot” in section 14 of article 6 of the charter applies to “lot” in section 22 of the same article. Powell v. Sherwood, 162 Mo. 614; Dixon v. Caudill, 143 Ky. 623; State v. Allison, 155 Mo. 330; United States v. Miller, 208 U. S. 37; Plummer v. United States, 224 U. S. 137; Eailroad v. United States, 208 U. S. 452; Crossan v. City, 80 N. J. L. 511; Snyder v. Compton, 87 Texas, 879; Parshall v. State, 138 S. W. 765; Bains v. Stone, 123 Pac. 871; In re Kohler, 79 Cal. 313. They, are parts of one system of law in pari materia. Sales v. Paving Co., 166 Mo. 671; State ex rel. v. Patterson, 207 Mo. 145; State ex rel. v. Gordon, 261 Mo. 646. (b) The tax bills divided the land according to the Semple Place plat, which had many years before been nullified by sale under deed of trust, a matter of public record long prior to the initiation of the sewer project. McShane v. Moberly, 79 Mo. 43; Paving Company v. McManus, 244 Mo. 184. (c) Such division was without legal authority and the bills are therefore void.- St. Louis Charter, sec. 14, art. 6; Cooley, Con. Lim. (3 Ed.), p. 738; Upton v. People, 176 111. 632; People v. Clifford, 166 111. 165; People v. Bailroad, 96 111. 372. (d) The power of the city to assess is measured by the mode' granted by said section 14, but the power actually exercised was not granted and is ultra vires and the whole proceeding is void. Buggies v. Collier, 43 Mo. 377; Verdin v. St. Louis, 131 Mo. 97; Zottman v. San Francisco, 20 Cal. 96; St. Louis v. Clemens, 43 Mo. 404; Kiley v. Oppenheimer, 55 Mo. 374; Leach v. Cargill, 60 Mo. 316; Trenton v. Coyle, 107 Mo. 193; Nevada'v. Eddy, 123 Mo. 558; Perkinson v. Hoolan, 182 Mo. 189; Whitworth v. Webb City, 204 Mo. 601; Albers-v. St. Louis, 188 S. W. 83'. (e) The enforcement of the bills by the judgments according to the Semple Place plat violates section 30 of article 2 of Missouri Constitution. Chicaso v. Wells, 236 Til. 130; St. Louis v. Hill, 116 Mo. 527. And the Fourteenth Amendment to the Federal Constitution, since both charter and ordinance followinp’ it are State laws. Waterworks v. Befining Co., 125 IT. S. 31; Gast Co. v. Schneider Co., 240 U. S. 55. (2) The judgments below were further erroneous because in defiance of Secs. 9848 and 9849, B. S. 1909, which is (a) not a special law within the prohibition of section 53 of article 4, Missouri Constitution. State ex inf. v. Southern. 265 Mo. 286; State ex rel. v. Speed, 183 Mo. 201; Board v. St. Louis, 267 Mo. 366; State ex rel. v. Mason, 153 Mo. 35; State ex rel. v. Mason, 155 Mo. 502. (b) And is not directory, but mandatory by phraseology. Cooley, Taxation (3 Ed.), p. 479; Stayton v. Hulings, 7 Ind. 144. (c) Mandatory, because for.the protection of the land owner. Cooley, Taxation (3 Ed.), pp. 480, 484; Leslie v. St. Louis, 47 Mo. 477; St. Louis v. Glasgow, 254 Mo. 277; Leavitt v. Eastman, 77 Me. Í20; In re Bledsoe Hill, 200 Mo. 643. The statutory requirement of additional notice to process does not invalidate the act. In re Powers, 29 Mich. 504; Davis v. Sawyer, 66 N. H. 34; Tinslar v. Davis, 12 Allen, 79; Coulter v. Stafford, 56 Fed. 565; Oulahan v. Sweeney, 79 Cal. 537; Grant v.. Berrisford, 94 Minn. 49; Surety Co. v. Architectural Co., 226 U. S. 281; Henley v. Myers, 215 U. S. 273. The analogous statute, Sec. 8231, E. S. 1909, prescribing recording of notice of intention to file a mechanic’s lien against a non-resident owner within a time certain, requires exact obedience as to time. Schubert v. Crowley, 33 Mo. 564. So' does the analogous Sec. 9111, E. S. 1909, prescribing notice of injury and claim against certain municipalities. Lyon v. St. Joseph, 112 Mo. App. 681; Eeno v. St. Joseph, 169 Mo. 642. The presumption of payment and extinguishment of the lien raised by the act is conclusive and not rebuttable by evidence. Wilson v. Iseminger, 185 U. S. 55; Waterworks v. Oshkosh, 187 H. S. 444. The law may extinguish the claim as the result of failure to give the notice as prescribed by statute. Champion v. Ames, 188 U. S. 358; Frisbie v. Hnited States, 137 U. S. 166; Karnes v. Insurance Co., 144 Mo. 417. No other time than that prescribed by the act can suffice. Anderson v. Pemberton, 89 Mo. 64; Mears v. Spokane, 22 Wash. 323. (3) The trial court further erred in sustaining the attachments after appearance and answer of appellants to the merits, plaintiff having given no bond and the sole ground of attachment being non-residence. Sec. 2298, E. S. 1909. And in taxing costs thereof against appellants. Secs. 2298, 2335, E. S. 1909: Hill v. Bell, 111 Mo. 41; Tootle v. Lysaght, 65 .Mo. App. 145. .Costs are never visited upon a party unless the statute strictly construed in his favor makes him liable therefor. Shed v. Railroad, 67 Mo. 690; State ex rel. v. Gordon, 245 Mo. 28.

      T. J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe for respondent.
    (1) The defense set up in answer that plaintiff did not comply with' the provisions of the act entitled “An Act for the giving of notice of suit on special tax bills in cities of 300,000 or more and limiting the lien of special tax bills” (Laws 1909, p. 704; Secs. 9848-9849, R. S. 1.909) is without merit because; (a) the act is unconstitutional, being special legislation; (b) • the first section of the act is merely directory, and the plaintiff can at any time before final judgment is entered in the cause file the notice, required by said section, with comptroller; and (c) the suits mentioned and described in the petition herein were not commenced in any city— 'they were commenced in the circuit court of the city of St. Louis. No suit can be commenced in a city; it must be commenced in a court. Art. 4, sec. 53, subdiv. 17, Constitution. .(2) The finding of facts by the trial court in, favor of the plaintiff are .conclusive and this court will not review the facts so found by the trial court. . Pruin v. Meredith, 144 Mo. App. 586. ■ (3) The parcels of property can be identified by the description contained in the several tax bills; therefore,'the special 'tax bills are valid and the judgment should be sustained. 'Const. Co. v..Levv. 64 Mo. App. 430; Adkins v. Quest, 79 Mo. App. 36; St. Louis v. Calhoun, 222 Mo. 54; St. Louis v. Koch, 169 Mo. 587.
   BOND, P. J.

— I. Plaintiff, the Banabrick Brothers Construction Company, a corporation, instituted twenty-one separate actions to enforce the lien of as many special tax bills against separate par-eels of land in St. Louis' owned by the various defendants, said tax bills covering the cost of the construction of the second section of the South Harlem Joint District Sewer. The petition in ehch case was similar in form, the variance being the parties defendant and the description of the parcels of land against which the tax bills were issued.

The petition pleaded the passage of an ordinance by the city of St. Louis to establish a sewer district to be known as the South Harlem Joint Sewer District; that said district was established and an ordinance passed for the construction of the second section of said Joint District Sewer; that provision was made for the payment of the city’s portion of the cost of same; that plaintiff entered into a contract with the city in accordance with the charter and ordinance; that upon the completion of the work, the President, of the Board of Public Improvements computed the cost and assessed the same as a special tax upon all the property in the South. Harlem District and special tax bills were made out, registered, countersigned and delivered to plaintiff. The petition then alleged the ownership of the lot, the amount computed, assessed and charged against the lots described, the designation of the Franklin Bank as the depositary to receive payment; delivery of notice of the tax bill to the City Marshal, the return on the tax bill that the persons named could not be found, and prayed judgment for the amount of the special tax bill and that .same be adjudged a lien on each particular parcel of land and-that same be sold to pay the amount of the .special tax and costs.

■ • The answer in nineteen of the suits, besides a general denial, averred that plaintiff did not file with the comptroller of St. Louis a written notice of the filing. of the. suits, and in certain of the suits it was averred that certain. proceedings were still pending on behalf of the city of. St. Louis for the condemnation of specified streets.

■Plaintiff’s reply was a general denial and a denial of the new matter of the various. answers.

By agreement all of the suits were tried together in Division No. 8 of the circuit court of the city of St. Louis. . '

The court rendered final judgment in each of said cases in favor of the plaintiff and against the various defendants and declared -each of said special tax bills a lien upon the particular parcel of land described therein,- together with interest and costs and ordered that the land be sold to pay the same. The defendents appealed. Seven of these appeals are comprised in this record; three are comprised in our Docket No. 18472 and eleven in No. 18473.

II. There is no question that the work done by the contractors in this case has gone into the betterment of the property of defendants, nor that it was performed in accordance with the contract under which the work was let; nor that it has enhanced the value- of the property of the defendants as contemplated when the improvements were ordered by the city authorities. [Sheehan v. Owen, 82. l. c. Mo. 465.]

The only questions presented by the appeal are certain objections to the validity of the tax bills under the charter provisions of the city of St. Louis.

The first position taken by appellants is that the tax bills are void because not issued-in accordance with section 22 of article 6 of the St. Louis charter, which provided for the issuance of a “special tax bill against each lot or parcel of ground in the joint sewer district, giving the name of the owner thereof,” etc. It is contended that the phrase “lot or parcel of ground” is defined by the following language contained in section 14 of article 6 of the St. Louis charter:

“Lot defined — The word ‘lot’ as used in this section shall be held to mean the lots 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 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.”

Also that in view of the evidence showing that at the time of the issuance of the tax hills in suit, the area covered by the recorded plat (according to the subdivisions and boundaries of which the tax bills were issued, known as Semple Place) had been sold out as a body under a prior deed of trust, leaving nothing thereafter but one enclosure for the entire tract; therefore one tax bill should have been issued against the whole tract.

It will be noted in comparing the two provisions of the charter that the' latter defining the word “lot” and the sense in which-it is to be used, does not purport in any way to define what shall be the significance of the phrase “parcel of ground.” Unless, therefore, appellants are able to show that the property affected by the tax bills in suit does not disclose the several “parcels of ground” designated in the tax bills, there is no merit in their contention that the judgment in this case fixing a lien on these several parcels of ground, violated the charter. On that- point not only was the recorded plat of Semple Place, as it was subdivided prior to the enforcement of the mortgage on the entire tract, before the trial court, but all the facts and circumstances in evidence bearing on the question of the usage by defendants of the several tracts of land formerly described by that plat, including the testimony tending to show one enclosure, and from all the evidence the learned trial judge evidently found that there were “parcels of ground, the subdivisions whereof were substantially the same as those contained in the recorded plat of Semple Place, against which the tax bills in suit were issuable. The question of fact having been resolved against alpellanfs’ contention that no such distinct parcels of ground” existed at that time, nothing is left for review. [Gannon v. Gas Light Co., 145 Mo. 502.] We conclude, therefore, that the tax bills in this case were not issued without authority under the charter, and that the judgmerits recovered bv plaintiff were not, for that reason, erroneous.

It necessarily follows from this conclusion, that the enforcement of the tax bills-did not contravene the terms of the charter, supra, providing for their issuance, and hence does not amount to a taking of the property of appellants without due process of law.

III. It is also urged by appellants that the judgments in these cases were erroneous for the reason that respondent failed to give written notice within ten days after the institution of the suits, setting forth when and in what court they were brought, and to file the same in ,the office of the comptroller of the city as required by sections 9848, 9849, Revised Statutes 1909, which prescribe the giving of such notice and also the time within which a lien of tax bills shall cease, and the time within which, in the absence of such suits or notices, the tax bills shall be presumed to have been paid and requiring an entry of the expiration of the liens.’ All these suits were commenced in December, 1912, and the notices in question were not given by plaintiff until September 15, 1913.

These sections of the statute were not unconstitutional for that, until the present time, no city of the State had attained the population of three hundred thousand except the city of St. Louis, which is the only municipality falling within the description to which the acts under review are applicable. [See title to acts in question, Laws 1909, p. 704.] The propriety, of such a classification according to population has been settled in this State. [State ex inf. v. Southern, 265 Mo. l. c. 286.] Whether the act in question, is obnoxious to the constitutional provision forbidding. the Legislature to pass any local or special law which regulates .“the practice or jurisdiction-of . . .. any judicial proceeding or inquiry before-the courts,’’.etc. . (Constitution, art. 4. sec. 53, par. 17), or whether these acts violate paragraph 32 of section 53 of article 4 of the Constitution, are questions which need not be ruled in the view we take of. the meaning and purpose expressed by the acts.

It will be observed that' section 1 of the act under review deals wholly with the manner of giving notice in writing within ten days thereafter of the filing of a suit to a special tax bill and the record of such notice 'in the office where the record of such special tax bills •is required to be kept. . ’

“Sec. 1. .'Whenever any suit shall be commenced in any city of this State now having, or which may.hereafter have a population of three hundred thousand or more inhabitants, on aiiy ’Special tax bill to enforce the payment of the lien thereof, th.e party'or parties plaintiff shall, within ten days after the commencement of such suit, file with the' comptroller or other officer of such city, in whose office the record of sueh special tax bills is required to be kept, a written notice setting forth when and in which court such suit was brought; and the comptroller or such other officer shall immediately note such facts on the record of such tax bill.

“Sec. 2. Tlie lien of every such tax bill shall cease, end and determine in two years after said tax bill, or the last installment thereof, if the same be payable in installments, shall have become due and .payable, unless suit shall have been brought on such tax bill, -and notice of such suit, as hereinbefore required, shall have been given and filed within that time. If within said time no such suit was brought or if within said time no such notice of suit shall have been filed, the tax bill shall be presumed to have been paid, and the comptroller, or other proper officer, shall make am appropriate entry on the record of the tax bill in his office that the lien thereof has expired by lapse of time.” [Laws 19.09, p. 704.]

These sections are intended to direct that notice thereof shall be given ten days after suit. They do not condition the right to sue upon the giving of a subsequent. notice, nor the right to maintain a suit for failure to give notice after its institution. Such a notice is not in any sense a summons or other method of giving the court jurisdiction and could answer neither purpose, since it is only enjoined after the suit has been brought and after jurisdiction of the person or property have attached. All the objects legitimately within the scope of this notice are subserved if it, as was done in the present cases, is filed before the trial and expiration of the time fixed for the lapse of the. lien of the tax bills. We hold, therefore, that the statutes under review, if valid, do not affect the right of respondent to the judgments obtained under the tax bills in suit.

IV. It is finally contended that the judgments should not have sustained the attachments in those cases sued out on the ground of non-residency, nor have awarded the costs of such attachments against the appellants, since they entered their personal appearance To the actions. This assignment of error is well taken. [R. S. 1909, sec. 2298; Bambrick Bros. Const. Co. v. McCormick, 157 Mo. App. l. c. 204.]

The judgments herein on the merits were correct and will be affirmed, provided respondent within ten days enters a remittitur of all the costs of the attachments adjudged in its favor. The costs of this appeal are adjudged against respondent.

All concur, Blair, J., paragraphs 1, 2 and 3 and result.


text:
    BAMBRICK BROTHERS CONSTRUCTION COMPANY v. LOUISE S. CLARKE et al., Appellants.
    Division One,
    March 30, 1917.
    SPECIAL TAX BILLS: District Sewer: Suit Pending to Establish Street. If the proceeding to condemn .land for streets through the area taxed with the costs of a joint district sewer, is undetermined and open to cessation on the part of the city authorities at the time of the trial of the action on the special sewer tax bills, the projected streets are not streets in the sense of the charter excluding them as a part of the area assessable for sewer taxes, and if they become streets the money paid for them will stand in lieu of the land taken, and hence the tax bills issued against subdivisions of the area are not void because those projected streets were not excluded.

      Appeal from the St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.
    Affirmed.

      C. R. Skinker for appellants.
    (1) Each of the pretended parcels described in each of the tax bills was divided into two or more parcels by streets established by the same authority which issued the bills, and prior to the establishment of the boundaries of the sewer district, and the bills are therefore void since they do not describe the land as required by section 14 of article 6 of the charter, (a) Ordinances Nos. 24021 and 24020, respectively establishing Ashland and Lexington avenues, operated as a taking of the strips therein designated for the public use upon the dates they respectively took effect, within the meaning of sections 2 and 30 of article 2 of Missouri Constitution. St. Louis v. Hill, 116 Mo. 527; St. Louis v. Brown, 155 Mo. 562; Parks v. Boston, 15 Pick. 198; Burt v. Insurance Co., 115 Mass. 7; Edmands v. Boston, 108 Mass. 547; Dorgan v.. Boston, 12 Allen, 231; Whitman v. Railroad, 7 Allen, 326; Hampden Co. v. Railroad, 124 Mass. 119; Railroad v. Miller, 125 Mass. 13; In re Public Parks, 99 N. Y. 580; In re Public Parks, 53 Hun, 290; Rexford v. Knight, 11 N. Y. 308; Commissioners v. Armstrong, 45 N. Y. 234; In re Delafield, 109 Fed. 577; Johnston v. Callery, 225 Pa. 417; G-raybill v. Ruhl, 225 Pa. 417-; Railroad v. Burson, 6Í Pa. 369; Rubottom v. McClure, 4 Blackf. 507; Hankins v. Lawrence, 8 Blackf. 266; Railroad v. Murdock, 68 Ind. 137; Kennedy v. Indianapolis, 103 U. S. 602; Cavenaugh v. McLaughlin, 38 Minn. 83. (b) The taking and the ascertainment of compensation upon which investment of title by payment depends are two totally different things. The former is the act of the sovereign Legislature. • Bridge Co. v. Stone, 174 Mo. 22; Lankford v. Shively, 174 Mo. 551; Uh-rig v. St. Louis, 44 Mo. 463. The latter involves merely the exercise of judicial power. Plum v. Kansas City, 101 Mo. 531. (c) The taking is fully accomplished when the land is designated by the Legislature for the public use, notwithstanding the. title, jn.ay .not vest by payment of compensation for the taking until long afterward. Taking and investment of title are not contemporaneous, nor is the latter necessary. to accomplish the former. St. Louis v. Hill, 116 Mo. 527; Burt v. Insurance' Co., 115 Mass. 7; In re Public Parks, 99 N. Y. 580; Re Delafield, 109 Fed. 577; Kennedy v. Indianapolis, 103 U. S. 602. (b) The only effect of default in payment of compensation is to render the condemnor a trespasser ab initio. Kennedy v. Indianapolis, 103 U. S. 602. (e) The strips taken by said ordinances for said avenues long before the boundaries of the sewer district were ever established by the same authority, divide each of the parcels described in the bills into two or more parcels. (2) To exact from defendants assessments for this sewer upon the same land taken by the same authority for avenues, is a deprivation of their property without due process. St. Joseph v. Crowther, 142 Mo. 162. (3) This court cannot now recede from the .construction placed on section 21 of article 2 of Missouri Constitution in determining the effect of similar ordinances in St. Louis v. Hill, 116 Mo. 527, and St. Louis v. Brown, 155 Mo. 545, existing when Charles J. Clarke bought -the land in question at trustee’s sale, without impairing the obligation of his contract of purchase within the inhibition of the Federal Constitution. Muhlker v. Railroad, 197 U. S. 544; Louisiana v. Pillsbury, 105 U. S. 294; Butz v. Muscatine, 8 Wall. 584; Sec.- 25, art. 6, Charter; Maguire v. Savings Assn., 62 Mo. 344; United States v. Macon County, 99 U. S. 582; Williamson v. Brown, 195 Mo. 328; Kansas City v. Association, ,145 Mo. 53; St. Louis v. Contracting Co., 202 Mo. 465; Perkins v. Thornburgh, 10 Cal. 191; Gegiow v. Uhl, 239 U. S. 3. The tax is an inseparable entirety. Williams v. Talladega, 226 -U. S. 404; Leloup v. Mobile, 127 U. S'. 640, 647; Kansas City v. O’Connor, 82 Mo. App. 660; Warren v. Commissioners, 181 Mass. 11; Dyer v. Chas'e, 52 Cal. 441; Bennett v. Emmetsburg, 138 Iowa, 81. To do so without statutory authority would convert the court into the assessing authority which is not permissible. Ee New Tort School, 75 N. T. 329.

      T. J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe for respondent.
    The area of the proposed streets was properly included in the parcels .of property described in the tax bills. In describing the parcels these proposed • streets were properly, disregarded. (1) Ashland, Lexington and Belt Avenues have never been opened through the property, and condemnation proceedings were and had been for several years pending, at the time of the trial of this case, for the opening of these streets, exceptions to the report of the commissioners having been filed by J. Denniston Lyon. These proceedings are still penfiing. Such being the ease, these proposed streets, through the property are not streets within the meaning of the section of the charter requiring the cost of sewers to be assessed against the property exclusive of streets, avenues, public highways and alleys. The area of these .streets was properly included. Charter of St. Louis (1876), art 6, secs. 9, 22; Kansas City v. Ward, 134 Mo. 183'-; Plum v. Kansas City, 101 Mo. 525; Shoemaker v. U. S., 147 U. S. 321. (2) The condemnation proceedings may be abandoned at any time, the purpose of the proceedings being to ascertain the cost of opening the streets,- and, if loo great, to permit an abandonment. Charter of St. Louis .(1876), -art. 6, -sec.-10; Eyssell. v. .St: Louis, 168 Mo. 613; Silvester v. St. Louis, 164 Mo. 601; State ex rel. v. Hug, 44 Mo. 116; Simpson v. Kansas City,' 111 Mo. 237; Whyte v. Kansas City, 22 Mo. App. 409. • (3) The commission to assess some property within the improvement district does not invalidate the tax bill. Creamer v. McCune, 7 Mo. App. 91; Walsh v. Bank, 139 Mo. App. 648; Neil v. Eidge, 220 Mo. 242: O’Dea v. Mitchell, 144 Cal. 374.; Eich v. Chicago, 152 111. 18; Allen v. Commissioners, 176 111. 113; State v. Bayonne, 60 N. J. L. 406; Granite Co. v. Eealty & Inv. Co., 259 Mo: 153. (4) When the streets are actually condemned and the money paid into court, the money stands in lieu of the land as regards the lieu of the special tax bill. Ross v. Oates, 117 Mo. App. 237, (5) If the amount of the assessment against this property is wrong because of the inclusion of streets and alleys that ought not to have been included, the excess is a mere matter of mathematical computation and can be deducted from the amount of the bills in rendering final judgment. Walsh v. Bank, 139 Mo. App. 648. (6) The defendant cannot complain in a special assessment that he was undertaxed; nor can he complain of overassessment, unless he tenders the amount due. Staté ex reí. v. Piad, 26 Mo. App. 500; Overall v. Ruenzi, 67 Mo. 207; Dickhaus v. Olderheide, 22 Mo. App. 79. '
   BOND, P. J.

— The record in this case contains the appeals in three of the tax bills suits brought by respondent against appellants wherein, in addition to the points presented in Bambrick Bros. Con. Co. v. Realty Co., ante, page 450, and which we have decided as shown' in the opinion in that case, the further defense is made that condemnation proceedings had been begun to open streets through portions of property described in the tax bills.

We conclude that the assignment of error based on this fact is untenable under this record, which shows that the proceedings to condemn were in fieri at the time of the trial, being then undetermined and open to cessation on the part of the city authorities. [Municipal Code, p. 362; City Charter, art. 4, sec. 10, art. 6, sec. 9; Eyssell v. St. Louis, 168 Mo. l. c. 613; Silvester v. St. Louis, 164 Mo. 601; Kansas City v. Ward, 134 Mo. 172.] Por the above reason the projected streets were not then streets in the sense of the charter excluding them as a part of the proportional area of the whole district assessable for sewer taxes (Charter, art. 6, sec. 22), and if they ever become streets, the money paid for them will stand in lieu of the land taken. [Ross v. Gates, 183 Mo. l. c. 347, 117 Mo. App. l. c. 243.]

For these reasons and those stated in the opinion in Banmbrick Bros. Construction Co. v. Realty Co., ante, page 450, the same judgments are entered in these cases.

All concur, Blair, J., in result.