text:
    WESTERN CATTLE BROKERAGE COMPANY, Appellant, v. GATES.
    Division One,
    October 11, 1905.
    1. APPEALS: Nunc Pro Tunc Order After Appeal: Exceptions: No Appeal. Appellant’s abstract contained none of the evidence contained in the bill of exceptions, but simply stated that facts tending to support the allegations of the petition were introduced, etc. Afterwards appellant procured a imno pro tuno order in the circuit court, correcting the record so as to show that the case was tried in division 5 of the court and the motion for new trial overruled by the judge thereof and time given to file a bill of exceptions, and that thereafter the judge of that division became judge of division 3 of the same court, and as such approved the bill within the time previously allowed by him, and ordered the bill filed in division 5, and respondent excepted to that action and contends that this judge had no power to settle the bill of exceptions or to order it filed therein, and filed a bill of exceptions, but did not appeal from the order complained of. Held, that as these mino pro tunc proceedings took place after this appeal was taken, the matters complained of in connection therewith are not before this court for review.
    2. -: Skeleton Bill. Under Rule 6 which provides that “it shall not be necessary to set out the evidence in the bill of exceptions, but it shall be sufficient to state that there was evidence tending to prove the particular fact or facts,” a motion to dismiss the appeal will not be sustained if the abstract filed sets out the pleadings, and recites that there was a trial on the merits, a verdict for the respondent, a motion for new trial filed and overruled, an appeal allowed and overruled, the approval and filing of a bill of exceptions within time, and sets out in full the instructions and states there was evidence tending to support the petition and the answer.

      3. -: Instructions: No Exceptions. Where the bill of exceptions contains no exceptions saved to the action of the court in refusing certain instructions asked by appellant, that ruling of the court is not open to review on appeal.
    4. FRAUD: Representations: Knowledge. One who makes representations which he does not know to be true, and conscious of the fact that he has no knowledge on the subject, to another who *has no knowledge as to the truth or falsity of the representation, is as much guilty of fraud as if he had actual knowledge of the falsity of the statement; and if the party to whom the representation is made relies upon it and is injured thereby, he is entitled to recover from the party making the representation in an action of fraud and deceit.
    Appeal from Jackson Circuit Court.— Hon. W. B. Teasdale, Judge.
    Reversed and remanded.

      Ward é Hadley for appellant.
    (1) Tke court erred in giving.defendant’s instructions 2 and 3. If a false representation is made and is relied upon and is a material inducement, it makes no difference that other motives or causes contributed. It is equally well-settled law that if several representations are made to induce a party to enter into a contract and any one of them is false and operates as an inducement, an action of deceit may be maintained, though the representations that are true have operated as an inducement. On the same principle, if a party to whom a false representation is made to induce him to enter into a contract does so, partly relying upon such representations, he is entitled to relief on the ground of fraud, though he may also have relied partly upon an examination or investigation made by himself or by others for him. Burnham & Co. v. Elmore, 66 Mo. App. 617; Cahn v. Reed & Bungart, 18 Mo. App*. 130; Saunders v. Mc-Clintock, 46 Mo. App. 216; Becraft v. Grist, 52 Mo. App. 589. It is also established law that a party to whom false representations are made cannot treat them as fraudulent, if he relies solely up on a guaranty and not upon representations, but the mere fact that a party takes a guaranty does not bar relief on the ground of false representations, if he relied partly upon representation's. Holdom v. Ayer, 110 111. 448; Elphick v. Hoffman, 49 Conn. 331; Busch v. 'Wilcox, 82 Mich. 315.' (2) The court erred in giving instruction 5 at request of defendant. This instruction says that Gates must have known that the number of steers set out in said mortgages was untrue, and that Gatch and Buckingham did not own the number therein represented. This is not the law. Koontz v. Kaufman, 31 Mo. App. 397; Hamlin v. Abell, 120 Mo. 188; Paretti v. Rebenack, 81 Mo. App. 494.' This instruction also conflicts with other instructions given for defendant and plaintiff on the subject of knowledge. In other words, this instruction called for actual knowledge on the part of Gates as to the representation as to the-number of cattle-, while the other instructions given for plaintiff and defendant made defendant liable if he were conscious of the fact' that he did not have-any knowledge at all as to the other-representations charged in plaintiff’s petition.

      JR. E. Ball and Johnson & Lucas for respondent.
    (1) The instructions given for respondent, numbered 2 and 3, are plain and explicit. The expression of one state of facts is the exclusion of every other. If plaintiff relied upon the statements of third parties in making its loan or purchase of notes, it did not rely on those of Gates; and likewise if it was relying upon an agreement with Gates and his financial ability to make it good, that excluded the idea of any representations as to value, quantity or kind. It is true that reliance can be had upon a combination of statements, facts or circumstances, but these instructions are not complex. Number 2 says if respondent relied on statements of third parties no recovery can be had of Gates. Number 3 says if reliance was had upon an agreement with Gates to take up the notes, and upon his financial ability to do so, a recovery cannot he had of him for false representations as to value, kind and quantity of cattle. These instructions declared the law. Anderson v. McPike, 86 Mo. 293. (2) If instructions 2 and 3, given for defendant, were defective as alleged by appellant, the defect is fully cured by instructions 1 and 2 given at request of appellant. Meadows v. Ins. Co., 129 Mo. 76; Anderson v. Railroad, 161 Mo. 411; Perrette v. Kansas City, 162 Mo. 338. (3) As to appellant’s attack upon instruction 5 given at request of respondent, it is to be observed that appellant did charge a representation as to ownership of cattle. This instruction, in connection with instruction 2 given for appellant, declares the law.
   MARSHALL, J.

This is an action of fraud and deceit. The plaintiff claims $50,000 damages on account of alleged false and fraudulent representations of the defendant, whereby the plaintiff was induced to purchase from the defendant five promissory notes, executed by C. J. Buckingham and Samuel Gatch, to the order of E. J. Buckingham, and endorsed by him, aggregating $47,976, the plaintiff paying the defendant therefor the sum of $45,794.55. There was a verdict and judgment for the defendant, and the plaintiff appealed.

The abstract of the record sets out in full the petition, and then alleges that the answer was a general denial. The abstract then recites that there was a trial on the merits, a verdict for the defendant, a motion for a new trial filed and overruled, and an appeal allowed to this court, time granted to the plaintiff to file a bill of exceptions, and that the bill was filed within the time allowed. The abstract of the record then sets out the bill of exceptions in full. No evidence or abstract or digest or statement of tbe evidence is contained in tbe bill of exceptions. Tbe only reference to tbe facts adduced upon tbe trial being in tbe following language: “Tbe plaintiff introduced evidence tending to support tbe allegations of its petition. Tbe defendant introduced evidence tending to support tbe allegations of bis answer.” Tbe bill of exceptions tben recites that tbe plaintiff “prayed tbe court to instruct tbe jury as follows. ’ ’ Tbe instructions asked ' for tbe defendant and given or refused by tbe court are tben set out. Tbe bill of exceptions contains no exception to tbe action of tbe court in refusing instructions asked by tbe plaintiff. It contains an exception by tbe plajntiff to tbe giving o± tbe instructions asked by tbe defendant and given by tbe court. Tbe bill of exceptions tben recites: ‘ ‘ There was evidence introduced in tbe case by tbe respective parties to prove the facts upon which tbe instructions given by tbe court were based. ’ ’ Tbe verdict of the jury, tbe motion for new trial, tbe overruling of the same, the giving of time for tbe filing of tbe bill of exceptions, and tbe filing of the-bill of exceptions, within tbe time given, are tben set out. This constitutes tbe whole bill of exceptions and tbe whole abstract of tbe record. Heretofore tbe defendant moved tbe court to dismiss tbe appeal, because no bill of exceptions was filed within tbe proper time, and for other reasons stated in tbe motion. Tbe court, In Banc, overruled the motion to dismiss the appeal, on tbe fourth of March, 1903. Thereafter, as appears by an additional abstract of tbe record filed by tbe respondent, certain steps were taken by tbe plaintiff to procure a nunc pro tunc entry in tbe circuit court, correcting tbe record so as to show that tbe time for filing the bill of exceptions was extended by tbe court, and also showing that the case was tried in Division No. 5 of the Circuit Court of Jackson county, presided over by Hon. W. O. Teasdale the then judge of that division of the court; that thereafter, Judge Teasdale became the judge of Division No. 3 of the court and Hon. A. F. Evans became judge of Division No. 5; that the motion for a new trial was overruled by Judge Teasdale while the judge of Division No. 5, and that the bill of exceptions was approved and signed by Judge Teasdale while the regular judge of Division No. 3 of said court and was filed in Division No. 5 after Judge Teasdale had ceased to be the judge thereof. The defendant’s main contention now is that the circuit court erred in entering the nunc pro tuna order, and that judge Teasdale had no power to settle the bill of exceptions after he ceased to be the judge of Division No. 5, and had no power, as judge of Division No. 3, to order a bill of exceptions filed in Division No. 5. The defendant saved exceptions by a separate bill of exceptions to the subsequent proceedings in the case, but did pot appeal from the order and judgment complained of, and as they took place subsequent to the appeal taken by the plaintiff, those matters are not properly now before the court for adjudication and will not be further considered in the case.

The case presented, therefore, is, the petition of the plaintiff, the answer of the defendant, which was a general denial, the statement that the plaintiff introduced evidence tending to prove the allegations of the petition and the defendant introduced evidence tending to prove the allegations of the answer, and that the respective parties introduced evidence tending to prove the facts upon which the instructions given by the court were based, and the instructions given and refused by the court.

The case is, therefore, presented in compliance with rule 6 of this court, which is as follows: “For the purpose of reviewing the action of the trial court, in giving and refusing instructions, it shall not he necessary to set out the evidence in the bill of exceptions ; but it shall be sufficient to state that there was evidence tending to prove the particular fact or facts. If the parties disagree as to what fact or facts the evidence tends to prove, then the evidence of the witnesses may be stated in a narrative form, avoiding repetition and omitting all immaterial matter. ’ ’

The facts stated in the petition may be summarized as follows: The plaintiff is a domestic corporation, engaged in the business of broker, dealing in cattle paper. The defendant and one Vail were and are partners under the firm of Vail & Gates. On the 5th of June, 1899, the defendant had in his possession five promissory notes made by Buckingham and Gatch,'to the order of E. J. Buckingham, and by him endorsed, aggregating $47,976, which purported to be secured by chattel mortgages on 1,732 head of cattle, and which cattle were in various pastures in the State of Kansas. The defendant on said date induced the plaintiff to purchase said notes for the sum of $45,794.55. The petition charges that the defendant falsely and fraudulently represented to the plaintiff that the makers of said notes, secured as aforesaid, owned 1,732 head of cattle covered by said mortgages; that all of said cattle were what is known as Panhandle cattle, and had been- shipped from the Panhandle of Texas in 1898; would weigh from 750 to 850 pounds each, and that they were worth $35 per head, and that the makers of said notes had $10,000' of their own money invested therein, and that the makers of said notes owned the 1,732 head of cattle covered by said mortgages.

The petition then alleges that all the said representations and statements were false and fraudulent, and known to the defendant to be such at the time he made them; that the makers of said notes owned only 1,612 head of cattle; that they were not Panhandle cattle; that they were not shipped from the Panhandle of Texas in 1898, nor at any other time, and never were in the Panhandle of Texas; that said cattle did not weigh from 750 to 850 pounds each and would not exceed 450 pounds each; that they were not worth $35 per head and were worth not exceeding $10 per head; that the makers of said notes did not have $10,000 of their own money invested in said cattle, or any considerable sum of their own money so invested, but that the makers and endorser of said notes were then, and now are, insolvent ; that the character of the cattle as represented by the defendant to the plaintiff was of much higher grade than the cattle owned by the makers of said notes; that said notes were not paid at maturity; that plaintiff had to pay $3,500 pasturage for said cattle in order to get possession of them ; that plaintiff got possession of 1,612 head of cattle and, after the commencement of this suit, sold the same under said mortgages and became the purchaser thereof, for the sum of $22,729.75, and that after deducting the costs of foreclosure and the amount paid for pasturage, there remained the net sum of $18,982.79 applicable to the payment of said notes; that after becoming said purchaser, the plaintiff sold said cattle and realized therefrom the net sum of $29,305.06..

The petition then concludes with a prayer for $50,-000 damages. As above stated the answer is a general denial.

Under this state of the pleadings and under the statements in the bill of exceptions that the plaintiff introduced evidence tending to support the allegations of the petition, that the defendant introduced evidence to support the allegations of the answer, and that the respective parties introduced evidence tending to prove the facts upon which the instructions given by the court were based, the plaintiff claims that the court should have given the instructions asked by the plaintiff and refused by the court and that the court erred in giving the instructions asked by the defendant and given by the court.

The bill of exceptions contains no exception saved by the plaintiff to the action of the court in refusing the instructions asked by the plaintiff, and therefore that ruling of the court is not open to review here.

In order to correctly understand the ruling of the court it is necessary to reproduce in full the instructions given for the plaintiff and for the defendant, with the exception of the instructions given for the plaintiff relating to the measure of damages, which it is not necessary to reproduce inasmuch as the verdict was for the defendant.

The instructions given for the plaintiff were as follows:

“1. Plaintiff is entitled to a verdict in this case against the defendant, Charles W. Gates, if the jury find from the evidence the following facts: First. That on June 5th, 1899, the plaintiff bought from Gates, or from E. J. Buckingham, or from both of them, five promissory notes aggregating $47,976,- signed by C. J. Buckingham and Samuel Gatch and endorsed by E. J. Buckingham, dated May 15th, 1899, payable November 15th, 1899, and bearing 8 per cent interest per annum after maturity, paying therefor $45,794, which was more than the notes were in fact worth. Second. That Gates for the purpose of inducing plaintiff to buy the notes and convincing it that they were well secured, either orally or in writing, or in both ways, made, as statements of facts, any one or all of the following representations : (a) That said notes were secured by mortgages upon 1,732 head of cattle; (b) that they were what is known as Panhandle cattle; (e) that they were shipped from the Panhandle of Texas in 1898 ; (d) that they would weigh from 750 to 850 pounds each, and that they were worth $35 per head; (e) that Buckingham and Gatch had $10,000 of their own money invested in the cattle. Third. That any or all of said representations were false and fraudulent and plaintiff upon the faith of and reliance upon same parted with his money.
“2. If, to induce the plaintiff to act thereon, Grates falsely made any one of the representations of the character and for the purposes as submitted in the foregoing instruction 1, knowing at the time that it was false, then the jury must find that it was fraudulent. Or if Grates, without knowledge of its falsity, did make any one of such representations to induce plaintiff to act thereon, assuming or intending to convey the impression that he had actual knowledge of its truth though conscious that he had no such knowledge, then such representation was just as fraudulent as if he had made it actually knowing that it was false. If any representation was so made and was fraudulent, as that word is herein defined, then Grates cannot claim that he did not intend thereby to actually injure or to actually defraud plaintiff, or that he was innocent and acted honestly and in good faith in relation thereto. ’ ’

The instructions given for defendant were as follows:

“1. The burden of proof rests upon the plaintiff to establish by a preponderance or the greater weight of the evidence, each and every material fact necessary to entitle the plaintiff to recover. And the burden of establishing its claimed right to recover rests up-' on the plaintiff throughout the entire case and does not at any stage of this action shift upon the defendant.
“2. If the jury believe from the evidence that the plaintiff relied, in making the loan to Gatch & Buckingham, upon the report of George Neal or upon representations and statement made by E. J. Buckingham, then the plaintiff cannot recover in this action against the defendant and your verdict must be accordingly, •
“3. If the jury should find and believe from the evidence that the plaintiff in purchasing the notes and mortgages in question, relied, in doing so, upon the agreement of the defendant claimed to have been made to take up the same, if not satisfactory, and upon defendant’s financial ability and standing to make good such agreement if same was made; and if the jury should further find that but for the plaintiff’s reliance on the financial standing and ability of defendant and his said alleged agreement, the plaintiff would not have purchased said notes, then plaintiff cannot recover in this action and the verdict should be for the defendant.
“4. The plaintiff is not entitled to recover anything in this action on account of pasture bills which it may have paid to secure possession of said cattle, or for expenses laid out and incurred by it in caring for said cattle after taking possession of the same.
“5. In order for plaintiff to recover anything in this action, upon the ground of a misrepresentation by the defendant as to the number of steers owned by Gatch and Buckingham on the 5th day of June, 1899, the plaintiff must establish by a preponderance of the evidence thatvGatch and Buckingham did not in fact own the number of steers recited in said mortgages; that C. W. Gates knew the number of steers set forth in the mortgages and knew that the same was untrue, and that said Gatch and Buckingham did not at that time own the number therein represented, and knowing all of such facts, represented to the plaintiff that the said Gatch and Buckingham did in fact own the number of cattle recited in said mortgages and the plaintiff relied upon such representations in making said loan.
“6. Even though you should find from the evidence that the defendant represented to the plaintiff that the steers would weigh from 750 to 850 pounds each, nevertheless, if you should find that the defendant had never weighed steers and did not know what their correct weight was, hut said statement was made merely as his individual opinion as to their weight, then and in that event, such a statement was not a representation of fact, hut merely an expression of opinion, which, even though false, forms no ground whatever for recovery on the part of the plaintiff in this action.
‘‘ 7. Even though you should find from a preponderance of the evidence in this case that the defendant represented these steers as being Panhandle steers, nevertheless,, if you should further find that the term 'Panhandle steers’ is applied to animals of great diversity of grade, kind, breeding and value, then, so far as such representation is concerned, said term is meaningless and its wrongful use by the defendant as descriptive of the steers in question, furnishes no ground for recovery by the plaintiff in this action.
"8. If you believe from the evidence that on the 5th day of June, 1899, all of the country lying north and west of the quarantine line in the State of Texas was generally known among cattle men as the 'Panhandle’ and that the stock shipped therefrom was generally known as Panhandle cattle, then there can be no recovery herein on the ground that the defendant misrepresented that the cattle were shipped from the Panhandle and that they were Panhandle steers.
"9. If you believe from the evidence that the cattle were known among cattle men as Panhandle cattle, then your finding on that issue will be for the. defendant.
‘' 10. If you find and believe from the evidence that the steers in controversy were shipped from what was commonly known among cattle men as the Panhandle of Texas your finding must be for the defendant upon that issue, irrespective of the quality or value of said steers.
"11. The term ‘Panhandle’ for the purpose of this case must be understood in the sense in which it is generally used among cattle men. Although you may believe that, geographically, the term is applied to a limited area in the northwestern portion of the State, this does not authorize you to so apply it in this case. It is for the purposes of this case to be used as generally understood among cattle men, and embraces all that portion of the State to which it is so understood to apply, without reference to how it may be used by dictionaries, maps or geographies.
‘ ‘ 12. Even though you should find for the plaintiff upon all the issues herein, nevertheless, if you find that the steers covered by the mortgages in controversy were equal in value to Panhandle steers of the same age and condition, then in that event the plaintiff is not entitled to recover anything herein and your verdict must be for the defendant.”

I.

Instruction number five given for the defendant cannot be harmonized with instructions one and two given for the plaintiff. The instructions given for the plaintiff declared the law to be that if the defendant, for the purpose of inducing the plaintiff to purchase the notes, represented that the notes were secured by mortgages on 1,732 head of cattle; that they were what are known as Panhandle cattle; that they were shipped from the Panhandle of Texas in 1898; that they would weigh from 750 to 850 pounds each and were worth $35 a head; and that the makers of the notes had invested $10,000 of their own money in the cattle, and that any or all of said representations were false and fraudulent, and plaintiff upon the faith of and reliance upon the same, parted with his money, and that the defendant made any one of said representations knowing at the time that it was false or without knowledge of its truth or falsity did make the same, assuming or intending to convey the impression that he had actual knowledge, then snch representation was as fraudulent as if he had made it actually knowing that it was false. And that if such representation was made and was fraudulent as that word is defined in the instruction, then the defendant cannot claim that he did not intend thereby to actually injure or actually defraud plaintiff or that he was innocent or acted honestly and in good faith in relation thereto.

Instruction number five asked by the defendant and given by the court declared the law to be that the plaintiff could not recover upon the ground of a misrepresentation by the defendant as to the number of cattle owned by the makers of the notes, unless the plaintiff established by a preponderance of the evidence that the makers of the notes did not in -fact own the number of steers recited in the mortgages, and that the defendant knew the number of steers set forth in the mortgages, and knew that the same was untrue, and that the makers of the notes did not own the number therein represented, and knowing such facts represented to the plaintiff that the makers of the notes did own the number of cattle recited in the mortgages and that plaintiff relied upon such representations in making said loan. In other words, defendant’s instruction number five limited the defendant’s liability to his actual knowledge of the number of cattle owned by the makers of the notes and ignored the question of the representations actually made without actual knowledge of their truth or falsity. Or, otherwise stated, the theory of the defendant’s instruction is that the defendant is not liable unless he actually knew the representations to be false, whereas the theory of the plaintiff’s instructions is that the defendant is liable if he made the representations actually knowing them to be false, and also if he made the representations without knowing whether they were true or false, and while conscious that he had no knowledge of their truth but intended to convey the impression to the plaintiff that he had actual knowledge of their truth.

One who makes representations which he does not know to he true, and conscious of the fact that he has no knowledge on the subject, to another whom he knows has no knowledge as to the truth or falsity of the representation, is as much guilty of fraud as if he had actual knowledge of the falsity of the statement, and if the party to whom the representation is made relies upon it and is injured thereby, he is entitled to recover from the party making the representation.

In Bank of North America v. Crandall, 87 Mo. l. c. 211, it was said: “And if a party intentionally misrepresents a material fact, or produces a false impression in order to mislead another, or to entrap or cheat him, or to obtain an undue advantage of him,- this constitutes positive or actual fraud, in the- truest sense of the terms. And the misrepresentation is not confined to words or positive assertions; it may well consist of deeds, acts or artifice to mislead. [1 Story, Eq. Jur., sec. 192.]”

In Dunn v. White, 63 Mo. l. c. 185, it is said: ‘ ‘ The now generally recognized doctrine is, that in order to support a personal action for fraudulent representations it-is not sufficient to show that the party made statements which he did not know to be true, and which were in fact false; there must be fraud as distinguished from mere mistake. It is not, however, always absolutely necessary that an actual falsehood should be uttered to render the party liable in an action for deceit; if he states material facts as of his own knowledge, and not as a mere matter of opinion or general assertion, about a matter of which he has no knowledge whatever, this distinct, willful statement in ignorance- of the truth, is the same as the statement of a known falsehood, and will constitute a scienter. These principles have been recognized and enforced in the courts of this. State from a very early period. ’ ’

In Dulaney v. Rogers, 64 Mo. l. c. 203, it was said: “It seems to he established that an action based upon the deceit or fraudulent representations of another, cannot be maintained in the absence of proof that the party making them believed or had good reason to believe at the time he made them that they were false, or that he assumed or intended to convey the impression that he had actual knowledge of their truth, though conscious that he had no such knowledge. When the above facts are proven the scienter necessary to maintain the action for deceit, founded on false representations, is established.”

In Nauman v. Oberle, 90 Mo. 669, it was said: “On the part of plaintiff the court instructed the jury to the effect that, if they believed that it falsely and fraudulently represented the number of the hides to be not less than three hundred and forty, and knew the representation was not true, and that the representation was made to induce plaintiff to buy, or that, if they believed defendant made such representations as of his own knowledge, not knowing them to be true, and plaintiff made the purchase, relying thereon, the plaintiff was entitled to recover. These instructions are in harmony with the principle announced in the following cases: Dulaney v. Rogers, 64 Mo. 201; Walsh v. Morse, 80 Mo. 568; Jones v. Railroad, 79 Mo. 92.” [See, also, Bank v. Trust Co., 179 Mo. l. c. 664.]

The effect of the giving of plaintiff’s instructions one and two was to tell the jury that the defendant was liable if he made the representations knowing them to be false, and also if he made them, without knowing whether they were true or false, though conscious that he had no such knowledge, but intending to convey the impression that he had such knowledge; whereas the defendant’s instruction number five told the jury that the defendant was not liable unless he knew the number of cattle set forth in the mortgages and knew that his statements in reference thereto were false, thereby leaving the jury in hopeless confusion as to which was the rule of liability in law, or in other words, producing a hopeless conflict between the two instructions.

The instructions given for the plaintiff correctly declared the law. The fifth instruction given for the defendant was erroneous.

In the present state of the record it is not deemed necessary to further examine or discuss the case, inasmuch as what is hereinbefore said necessarily results in the reversal of the judgment below.

The judgment of the circuit court is reversed and the cause remanded for a new trial.

All concur.


source: Caselaw Access Project

author: MARSHALL, J.

license: Public Domain

text:
    CITY OF SEDALIA to use of SEDALIA NATIONAL BANK, Appellant, v. DONOHUE.
    Division One,
    October 11, 1905.
    1. STARE DECISIS: Decisions of Inferior Courts. Prior decisions of an inferior court cannot afford a basis for the application of the doctrine of stare decisis in the Supreme Court. The decision of one of the courts of appeals is in no proper sense binding on the Supreme Court.
    2. -: Rights of Property: Judicial Legislation. The doctrine of stare decisis is not applicable where the prior decision is wrong, or is in conflict with positive law, or where a further adherence thereto would amount to judicial legislation.
    3. IMPAIRMENT OF CONTRACTS: By Judicial Interpretation. The inhibition of the Constitution in reference to the impairment of contracts refers to impairment by some act of the legislative power of .the State, and not by a decision of the courts. Where a court has rendered an erroneous decision interpreting a statute, and a city in reliance upon that decision has issued taxbills and the plaintiff has bought them, the Constitution declaring that “no State shall enact any law impairing the obligation of contracts,” does not, on the theory that that decision became a part of the statute, inhibit the courts from holding such taxbills invalid.
    4. STREET IMPROVEMENT: Assessment: By Resolution. A street improvement in a city of the third class cannot be authorized by a resolution of the council. The power to order the improvement to be done, and to contract therefor, and to levy the taxes to pay for the same, can be exercised only by ordinance.
    5. -: -: Before Work is Done. The city council cannot levy and assess a special tax for a street improvement before the work is done, because it cannot know what the cost will be until the contract for doing the work is let.
    6. -: -: By Clerk. Nor can it delegate to the city clerk, upon the coming in of the written calculations of the engineer, the power to apportion the cost, assess each lot with its share, and issue taxbills therefor. The power to levy taxes to pay for street improvements is vested in the council, and it can exercise the power only by ordinance.
    Appeal from Pettis Circuit Court. — Hon. Geo. F. Longan, Judge.
    Aeeirjvted.

      J. H. Bothwell and Charles E. Yeater for appellant.
    (1) Tlie contractors having invested their money and labor and the Sedalia National Bank, the present owner of the taxbills in suit, having bought the same on the faith of the case of Nevada to use v. Morris, 43 Mo. App. 586, which construed the statutes in question, the court under the doctrine of stare decisis must hold these particular bills valid, even though it upholds the defendant’s contention that an ordinance assessing the special tax was necessary after the acceptance of the work. Railroad v. Fowler, 142 Mo. 687; Long v. Long, 79 Mo. 656; Wilson v. Beckwith, 140 Mo. 381; Dunklin Co. v. Chouteau, 120 Mo. 593; Pittelkow v. Milwaukee, 94 Wis. 655; Sutherland on Statutory Construction, sec. 317; cases cited under point 4, post. (2) The contractors and the hank had a particular right to rely on the construction set forth in the Morris case, because the statutes construed in that case (secs. 1495 to 1501, R. S. 1889),.were re-enacted in the same terms in sees. 108 to 110 of the act of April 19,1893, by which the Legislature adopted the construction of the Morris case. Handlin v. Morgan Co., 57 Mo. 116; Northcut v. Eager, 132 Mo. 277; Sanders v. Anchor Line, 97 Mo. 30; State ex rel. v. Withrow, 133 Mo. 515; Schawacker v. McLaughlin, 139 Mo. 341; Railroad v. Railroad, 138 Mo. 597. (3) Neither of the grounds for departing from a decision, (1) the necessity of preventing further injustice and (2) the necessity of vindicating clear and ob-' vious principles of law, exist here because, (a) conceding the Eddy case to require an ordinance after the completion of the work assessing the tax, this court can refrain from applying the Eddy decision to this particular case, and yet avoid the continuance of a bad precedent, and because all parties acted on the faith of the Morris case, the only existing construction pf the statutes, and (b) because under the modern rule the doctrine of stare decisis, as to existing rights, is applied at the same time the erroneous precedent is overturned, by providing that the decision shall not be retroactive nor affect rights based on the case' declared to be erroneous. Sutherland on Statutory Construction, sec. 317; Long v. Long, 79 Mo. 656; Railroad v. Clark, 119 Mo. 375; Railroad v. Fowler, 142 Mo. 687. (4) Plaintiff bought the taxbills on the faith of the ruling in the Morris case. Therefore, to hold after such a purchase was made, in this particular case, that the ruling in the Morris case is not binding, would be in violation of the tenth section of the first article of the Constitution of the United States, prohibiting the impairment by a State of the obligation of a contract. Douglas v. County of Pike, 101 U. S. 686; Ins. & Trust Co. v. Debolt, 57 U. S. (16 How.) 432; Olcott v. Supervisors, 83 U. S. (16 "Wall.) 690; Kenosha v. Lamson, 76 U. S. (9 Wall.) 485; Taylor v. Tpsilanti, 105 U. S. 72.

      George W. Barnett and Montgomery S Montgomery for respondent.
    (1) There was no impairment of the obligation of a contract by the decision of the Supreme Court in City to use v. Eddy, 123 Mo. 546, overruling City ex rel. v. Morris, 43 Mo. App. 590. Sec. 10, art. 1, of the Constitution of the United States provides that no State shall pas's any law impairing the obligation of a contract. The decision of a court, construing a statute, is not within the inhibition of the Constitution. Storrie v. Cortes (Texas), 18 S. W. 154; Liffinwell v. Warren, 2 Black (U. S.) 603; Gelpcke v. Dubuque, 1 Wall. 205; Stanly County v. Coler, 190 U. S. 444; Bacon v. Texas, 163 U. S. 221; Land Co. v. Ladie, 158 U. S. 109 ; B. & L. Assn. v. Brahan, 193 U. S. 647; McCulloch v. Virginia, 172 U. S. 127; Weber v. Regan, 188 U. S, 14. (2) Appellant had no justification or warrant for relying upon the decision of the Court of Appeals in the Morris case, (a) Because it was not a decision of the highest court of the State, but only of an inferior appellate tribunal. Art. 6, sec. 3, Const.; Pisher v. Perkins, 122 U. S. 525; Stanley v. Schwalby, 162 U. S. 255; Liffinwell v. Warren, 2 Black 599; Gelpcke v. Dubuque, 1 Wall. 205; Stanly County v. Coler, 190 U. S. 444. The decisions of the Kansas City Court of Appeals are in no manner binding upon the Supreme Court. Hennessy v. Brewing Co., 145 Mo. 104; Paddock v. Railroad, 155 Mo. 524. (b) One decision is never regarded as sufficient, even when rendered by the highest tribunal, unless the decision has stood long enough to become settled law, and therefore a rule of property, and until titles have become vested on the strength of it. Wells on Res. Ad. and St. Dec., sec. 599; Callenders v. Ins. Co., 23 Pa. St. 475. Bnt even then, the rule is not imperative. A decision, though long concurred, in, will not be followed where a palpable wrong or injustice will be done, or where the mischief to be cured far out-weighs any injury which might be done in a particular case. Bank v. Douglas, 146 Mo. 42; Storrie' v. Cortes, 18' S. W. 154; McDonald v. Davery, 60 Pac. 1116; Butler v. Van Wyck, 1 Hill 459; Wells on Res. Ad., etc., sec. 624; Hibbitts v.. Jack, 97 Ind. 578; Paul v. Davis, 100 Ind. 426; Ocean Beach Assn. v. Brinley, 34 N. J. Eq. 448; Pratt v. Brown, 3 Wis. 603; Smith v. Smith, 13 La. 441; Griffin v. Creditors, 6 Rob. 225; Lagrange v. Barre, 11 Rob. 302. (3) The statute received the proper construction in| City ex rel. v. Eddy, 123 Mo. 546. Wheeler v. Poplar Bluff, 149 Mo. 36; Moore v. Cape Girardeau, 103 Mo. 470; City of Westport v. Mastín, 62 Mo. App. 647; City of Westport v. Jackson, 69 Mo. App. 148; Poplar Bluff v. Hoag, 62 Mo. App. 672.
   MARSHALL, J.

This is an action on a special taxbill for $41.35, being one-third' of the total sum assessed against the defendant’s lot for the improvement of Main street between Moniteau and Washington avenues in Sedalia. At the close of the plaintiff’s case, the court directed a verdict for the defendant, and judgment was entered upon the verdict, and thereupon the plaintiff appealed.

The petition alleges that the city of Sedalia is a city of the third class; that the Sedalia National Bank is a national bank organized under the laws of the United States; that on the 7th of August, 1893, the city of Sedalia passed an ordinance providing for the macadamizing of Main street between Moniteau and Washington avenues, which ordinance was approved on August 8, 1893; that pursuant to the ordinance; the mayor and council awarded a contract for the doing of the work to White Bros.; that they did the work; that the work was received, approved and accepted hy the mayor and council, hy resolution, duly passed on the 4th of January, 1894; that after the completion and acceptance of the work, the cost thereof was duly computed and apportioned among the lots to be charged therewith according to law; that the council did by ordinance levy and assess the cost of the work on the abutting property in proportion to the front feet thereof; that the city clerk apportioned the cost of the work among the property holders and made out and certified taxbills therefor; that pursuant to statute the defendant elected to pay the taxbills in three annual installments, and accordingly three taxbills for $41.35 each were issued, against the property, by said city clerk.

The suit is to recover on the first of said three tax-bills. The defendant’s answer admits the passage of-the ordinance and the letting of the contract, but denies that the work was completed or accepted by the city; denies that the council and mayor of the city, by ordinance, levied and assessed the cost of the work; denies that the city clerk apportioned the cost of the work among the property-owners, but admits that the city clerk issued and delivered to the contractors the taxbills set out in the petition; denies any demand for the payment thereof; avers that the work was not done according to contract or in a workmanlike manner; avers that after the contractor had completed the work, to-wit, on the 2nd of June, 1894, he reported the same as completed to the city engineer, and thereupon the city engineer reported to the council that the work was finished, and the city council referred the report of the city engineer and the question of the acceptance of the work to the committee on streets and alleys, but that said committee had never -made any report thereon; avers that on the 4th of June, 1894, the council passed a resolution directing the city clerk to issue the taxbills sued upon, and that the clerk then issued taxbills for such amount as he believed to be their just proportion for the work done; that afterwards, the contractors, not being satisfied with the taxbills and claiming that they were not large enough, returned them to the city clerk and had him declare them void and so mark them on the records in his office and issue new taxbills for a larger sum against the respective property-owners, amongst them the taxbills sued on; .avers that said tax-bills are void and of no effect for said reasons; alleges that the mayor and city council did not by any ordinance levy any tax or make any assessment upon the defendant or his property, but that the taxbills sued on were issued without authority of law by the city clerk.

The reply is a general denial, with express admissions and pleas, among which are, that no ordinance was passed by the city after the work was done, levying or assessing a special tax therefor; that the plaintiff purchased the taxbills on the faith of and reliance upon the decision of the Kansas City Court of Appeals in the case of City of Nevada to use of Gilfillan v. Morris (43 Mo. App. 590), rendered February 2,1891, and that said taxbills were issued upon the authority of. that case; alleges that said case was, at the time plaintiff advanced money to the contractor to do the work and at the time plaintiff acquired the taxbills, the only adjudication in this State on the subject, and that that case held that the city clerk had authority to levy such special assessments and issue such taxbills; admits that thereafter, on the 26th of June, 1894, the Supreme Court of Missouri in the case of City of Nevada to use of Gilfillan v. Eddy (123 Mo. 563), held that the city council had no lawful right to delegate to the city clerk the right to levy a special assessment for street improvements, and to issue special taxbills therefor, and expressly disapproved and-overruled the decision of the Kansas City Court of Appeals in the Morris case, hut the plaintiff, in said reply, averred that the ordinance and work done thereunder and the'taxbills issued therefor, antedated the decision of the Supreme Court in said Eddy case, and that “to apply the rule therein laid down to the facts in this case as alleged in the petition and this reply, would give the same retroactive effect, and would impair the obligation of the contracts respectively entered into as aforesaid, by said White Brothers, contractors, and said bank, and would be in violation of the tenth section of the first article of the Constitution of the United States, prohibiting the impairment by a State of the obligation of a contract.”

Thus, it will be observed that the petition charges that the council and mayor of the city," by ordinance, levied and assessed the cost of the improvement, whereas the reply admits that the council and mayor passed no ordinance levying and assessing the special taxes, but by implication admits the truth of the answer that the taxbills were issued by the clerk pursuant to a resolution of the council, and that the clerk levied, assessed and apportioned the cost of the work, and avers that the taxbills so issued had been declared legal by the Kansas City Court of Appeals in the Morris case, and that, upon the faith of that ease, the plaintiff purchased said taxbills before the decision of this court in the Eddy case, and that to apply the rule laid down by this court in the Eddy case would impair the obligation of the contract between the city and White Brothers, and between White Brothers and the plaintiff, and hence would violate section 10 of article 1 of the Constitution of the United States.

I.

STARE DECISIS. The plaintiff invokes the doctrine of stare decisis. The contention of plaintiff is, that in the case of City of Nevada to use of Gilfillan v. Morris (43 Mo. App. 586), the Kansas City Court of Appeals held that it was competent for a city clerk of a city of the third class to levy, assess and apportion the cost of a street improvement, and that it was not necessary, under section 1498, Revised Statutes 1889, for the council and mayor, by ordinance, to levy and assess the same, but the act of so doing was a purely ministerial act, which the council might' delegate, by resolution, to a city clerk; that the contract with the White Brothers was entered into after said decision, the work was all done and the taxbills issued by the clerk before the decision of this, court in the Eddy case, supra, and therefore under the doctrine of stare decisis this court should enforce the rule laid down by the Kansas City Court of Appeals in the Morris case and should not follow the rule laid down by this court in the Eddy case; that the decision in the Morris case, interpreting section 1498 of the Revised Statutes 1889, which the plaintiff says is substantially the same as the act of April 19th, 1893 (Laws 1893, p. 90, et seq.), must be regarded as a part of the statute, and that to enforce the rule laid down by this court in the Eddy case would act retrospectively upon the contracts of the plaintiff and of White Brothers.

Or, otherwise stated, the position of the plaintiff is, that the doctrine of stare decisis requires this court to enforce the decision of one of the courts of appeals with respect to the construction of a state statute,'which decision has been expressly disapproved and overruled by this court.

Prior decisions of inferior courts cannot afford a basis for the application' of the doctrine of stare decisis in this court. The decision of the Kansas City Court of Appeals in the Morris case is in no proper sense binding upon this court. [Hennessy v. Bavarian Brewing Co., 145 Mo. l. c. 115; Paddock v. Railroad, 155 Mo. l. c. 534.]

In Bank v. Douglas County, 146 Mo. 42, it was contended that the warrants in controversy had been purchased upon the faith of the decision of this court in Potter v. Douglas County, 87 Mo. 239, and that the decision in that case constituted a rule of property, and that warrants issued upon the faith of it were not affected or invalidated by the subsequent decision in Barnard v. Knox County, 105 Mo. 382. The contention, however, was held untenable. There is no difference in principle between the contention in that case and the contention in the case at bar. The doctrine of stare decisis was invoked in that case just as it is in this case. In fact the same was true of the Barnard case, for it was then claimed that the debt there sought to be enforced had been contracted upon the faith of the decision of this court in the Potter case, but the contention was held untenable.

The doctrine of stare decisis is a valuable rule of conduct, and has been applied in proper cases for the purpose of avoiding changes in judicial decisions, but it is not a fixed and iron-clad rule that applies to all cases, and is not observed or enforced where the prior decision is palpably wrong, or is in conflict with positive law, or where a further adherence thereto would amount to judicial legislation.

II.

The plaintiff invokes the protection of section 10 of article 1 of the Constitution of the United States, which prohibits any State from passing any law impairing the obligation of contracts.

It is not pointed out or claimed that any law has been enacted by the law-making power of this State that in any manner impairs the obligation of any contract the plaintiff has with anyone. This point is, that the decision of the Kansas City Court of Appeals in the Morris case, construing section 1498, Revised Statutes 1889, became a part of that section of the statutes, and that to apply the decision of this court in the Eddy case to the case at bar would violate the guarantee of the Federal Constitution invoked. The law has been declared otherwise by the Supreme Court of the United States.

In Central Land Co. v. Laidley (159 U. S. l. c. 109), the Supreme Court, in passing upon a contention like that here made, said: “In order to come within the provision of the Constitution of the United States, which declares that no State shall pass any law impairing the obligation of contracts, not only must the obligation of a contract have been impaired, but it must have been impaired by some act of the legislative power of the State, and not by a decision of its judicial department only.”

In Bacon v. Texas (163 U. S. l. c. 220), it was said of such a contention: therefore void. Such are the eases of Gelpcke v. City of Dubuque, 1 Wall. 175, and Douglas v. County of Pike, 101 U. S. 677. In cases of that nature there is room for the principle laid down that the construction of a statute and admission as to its validity made by the highest court in the State prior to the issuing of any obligations based upon the statute, enters into and forms a part of the contract and will be given effect to by this court as against a subsequent change in decision by the State court by which such legislation might be held to be invalid. But effect is given to it by this court only on appeal from a judgment of. a United States Court and not from that of a State court. This court has no jurisdiction to review a judgment of a State court made under precisely the same circumstances, although such State court thereby decided that the State legislation was void which it had prior thereto held to be valid. It has no such jurisdiction, because of the absence of any legislation subsequent to the issuing of the bonds which had been given effect to by the State court. In other words, we have no jurisdiction, because a State court changes its views in regard to the proper construction of its State statutes, although the effect of such judgment may be to impair the value of what the State court had before that held to be a valid contract. ’’

“The argument involves the claim that jurisdiction exists in this court to review a judgment of a State court on writ of error when such jurisdiction is based upon an alleged impairment of a contract by reason of the alteration by a State court qf a construction theretofore given by it to such contract or to a particular statute or series of statutes in existence when the contract was entered into. Such a foundation for our jurisdiction does not exist. It has been held that where a State court has decided in a series of decisions that its legislature had the power to permit municipalities to issue bonds to pay their subscriptions to railroad companies, and such bonds had been issued accordingly, if in such event suit were brought on the bonds in a United States court, that court would not follow the decision of the State court rendered after the issuing of the bonds and holding that the legislature had no power to permit a municipality to issue them, and that they were

In Weber v. Rogan (188 U. S. l. c. 14), it was said: “We agree with the Supreme Court of the State that no contract was created by this statute. Hence, there was none to be impaired. We had occasion to hold in Central Land Co. v. Laidley, 159 U. S. 103, that we have no jurisdiction of a writ of error to a State court upon the ground that the obligation of a contract has been impaired, when the validity of the statute under which the contract is made is admitted, and the only question is as to the construction of the statute by that court; and in the same case, as well as in Hanford v. Davies, 163 U. S. 273, we held that the constitutional inhibition applies only to the legislative enactments of the State, and not to judicial decisions or to acts of State tribunals, or officers under statutes in force at the time of the making of the contract, the obligation of which is alleged to have been impaired. ’ ’

The question was thus summarily disposed of in National Mntual B. & L. Assn. v. Brahan (193 U. S. l. c. 647): “The Federal questions presented by the record are reducible to two, to-wit: (1) That the decision of the Supreme Court of Mississippi was in effect an impairment of the contract between the plaintiff in error and the defendant in error. (2) That full faith and credit were not given to the public acts, records and judicial proceedings of the State of New York.

“1. This contention is untenable. We said in Bacon v. Texas, 163 U. S. 207, ‘Where the Federal question upon which the jurisdiction of this court is based grows out of an alleged impairment of the obligation of a contract, it is now definitely settled that the contract can only be impaired within the meaning of this clause in the Constitution,- so as to give this court jurisdiction on a writ of error to a State court, by some subsequent statute of the State which has been upheld or effect given it by the State court. [Lehigh Water Co. v. Easton, 121 U. S. 388; New Orleans Water Works Co. v. Louisiana Sugar Refining Co., 125 U. S. 18; Central Land Co. v. Laidley, 159 U. S. 103, 109.] ’ in the case at bar there was no subsequent statute. There was a change in decision, it is contended, but against a change of decision merely, section 10, article 1, cannot be invoked.”

In Stanley County v. Coler, 190 U. S. 437, it was pointed out by the Supreme Court of the United States, that the rule above announced did not apply where the decision of the State court pertained to matters of commercial law or to general jurisprudence, but was limited to decisions of State courts construing State statutes.

The ease at bar falls within the general rale and not within the exception stated in the last case cited.

There is, therefore, nothing in the contention of the plaintiff in this regard, and no guarantee of the Constitution of the United States requires this court to ignore its own decision and to follow a decision of an inferior court, which it has disapproved and overruled, or which it believes does not correctly state the law.

III.

The plaintiff’s third contention is, that the decision of this court in the Eddy case, supra, does not correctly state the law, and that neither section 1498, Revised Statutes 1889, nor the act of April 19th, •1893, requires that the council and mayor shall, by ordinance, levy and assess the cost of street improvements after the work is done, and that in this case the ordinance authorizing the work at the same time levied the taxes and directed the clerk to issue the special taxbills.

Section 3 of the ordinance authorizing the work directed the engineer to calculate the cost of the work, to ascertain the relation of the number of front feet to the total frontage abutting the improvement, and to return his calculation, in writing, to the city clerk, and then directed the city clerk, “on receipt of said calculations, and upon approval of the city council of the worTe done, to assess each block separately upon all lots or pieces of ground on either side of said street,” etc. It is claimed that the law is satisfied by the passage of an ordinance of this character before the work is done.

The contention would avail the plaintiff nothing in this case even if it was true, for the ordinance did not confer the power upon the city clerk to levy and assess the special tax until he had received the calculations from the city engineer, nor until the city council had approved the work, and in this case the city clerk, under a resolution of the council, levied and assessed the special tax before the work was approved or accepted by the city council. So that, in any event, these taxbills were not issued even in conformity to the ordinance. But there is a deeper and broader question involved in the contention. Section 1498, Revised Statutes 1889, relating to street improvements by cities of the third class, confers upon the council the power to cause such improvements to be made, and to contract therefor, and to levy the tax as therein provided. Section 1495 confers upon such cities the power to enact ordinances for the improvement of streets, etc.; and section 1496 provides that assessments for such purposes shall be known as special assessments for improvements, and shall be levied and collected as a special tax and a special taxbill shall be issued therefor, and shall be paid in the manner provided by ordinance.

The Act of 1893 confers upon cities of the third class the power to enact ordinances, inter alia, for the improvement of streets, etc.; requires the cost to be levied as a special assessment on the abutting property according to the front foot rule; and provides that such assessments shall be known as special assessments for improvements, and shall be levied and collected as a special tax, etc.; and section 109 of that act provides that the city council may, “by ordinance, include in the special assessment the cost of bringing to the established grade any street to be improved, when in its judgment or opinion, the general revenue fund of the city is not in a condition to warrant an expenditure therefrom for bringing the same to the established grade. ’ ’ And section 110 of the act is very similar to, if not identical with, section 1498, Revised Statutes 1889, in respect to the matters here in controversy, and provides that when the council shall deem it necessary to improve a street, it shall so declare by resolution, which shall be published in a city newspaper for two consecutive weeks, and if a majority of resident owners of property liable to be taxed therefor shall not within ten days file with the city clerk their protest against said improvement, then “the council shall have power to cause such improvements to be made, and to contract therefor and to levy the taxes as herein provided.”

Prom the foregoing provisions it is manifest that the power to order the improvement, to contract therefor, and to levy the taxes to pay for the same, is vested in the council, and that the council can only act with respect thereto by ordinance and not by resolution. As pointed out by this court in the Eddy case, this has been the uniform construction placed by this court upon similar municipal powers and charters ever since the decision in Ruggles v. Collier, 43 Mo. 359. The power being vested in the city council to be exercised by ordinance, it was not competent for the city council to delegate the power to levy and assess the cost of the street improvement to the city clerk. Neither is there any merit in the contention that such levy may be made before the work is contracted for by the ordinance authorizing the improvement to be made. Section 110 of the act of 1893, as also section 1498, Revised Statutes 1889, gives the council the power to cause the improvement to be made, to contract therefor, and to levy the tax for the payment thereof.

It is manifest that the ordinance authorizing the work to be done, which is required to be based only upon an estimate of the cost, could not levy and assess the special tax for the doing of the work, for the council would not at that time know what the cost of the work would be, and therefore could not apportion it by the original ordinance. Until the contract for the doing of the work was let, no one could know what the cost of the improvement would be. The statute clearly contemplates, therefore, that the-city council shall authorize the doing of the work, shall enter into the contract therefor, and shall afterwards levy the cost as a special tax. It has always been held that the work conld not be authorized by a mere resolution of the council. It has also been held that the contract could not be entered into by a mere resolution. - [Wheeler v. Poplar Bluff (149 Mo. 36).] And it was held in City of Nevada to use of Gilfillan v. Eddy (123 Mo. 546), that the city council could not delegate to the city clerk the power to levy and assess the cost and issue a special tax therefor, but that the city council must do so by ordinance and not by resolution. No good reason has been shown, and none suggests itself to the court, for changing the rules so announced, which have been uniformly enforced by this court since the subject first underwent adjudication by this court. Experience has proved the wisdom of strictly adhering to the principles so announced. And whilst hardships may result in sporadic cases from the rigid enforcement thereof, such experience has clearly demonstrated that the general welfare is best subserved by strictly construing municipal actions in such matters, and by requiring a faithful compliance with the rule and the spirit of the law.

The taxbills in this case were not issued in conformity to the requirements of the law, nor even with the ordinance itself.

The judgment of the circuit court is right and is affirmed.

All concur.