author: GRAVES, P. J.

text:
    DES MOINES & MISSISSIPPI LEVEE DISTRICT NO. 1 v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant.
    Division One,
    February 29, 1912.
    1. PARTIES: Levee District: Attaching Railroad: Board or District as Plaintiffs. The levee district, and not the board of supervisors, is the proper plaintiff in a proceeding in a circuit court, under the Act of 1907, to have the right of way and roadbed of a railroad company benefited by the levee included within the district.

      2. LEVEE DISTRICT: Railroad Property: Constitutional: Charter Powers. The law authorizing railroad property to he brought in and made a part of a levee district, if its property is in fact benefited, is constitutional. To require a railroad company to help maintain a levee district is not to require it to do things in violation of its charter. The assessment of benefits are justified under the police power rather than the taxing power; and a law which, in the exercise of that police power, imposes on a railroad corporation only what it imposes on an individual, is not unconstitutional.
    3. -: -: For Benefits for Work Already Done and Paid For. The Legislature has no power to direct that the properties of a railroad benefited by a levee be included in the district and be assessed for work already done and paid for before the property is taken into the district. That part of the Act of 1907, Laws 1907, p. 336, is unconstitutional. The law should at least be limited to benefits to accrue after the lands are brought into the district, or to benefits accruing by reason of work done at the time the railroad’s land is taken in but not yet paid for. But in construing this limitation the issuance of bonds should not be considered as being payment for the work already done, since the payment of the bonds would be the payment contemplated. The law can authorize the bringing into the district of new territory benefited by the levee, and it can authorize the assessments of benefits thereon to pay for improvements to be made, or already made and not paid for as the work progressed, or at the time the new territory is added, and to that extent the Act of 1907, Laws 1907, p. 336, is valid, but beyond that it' is not valid.
    Appeal from Clark Circuit Court. — Hon. Charles D. Steioart, Judge.
    Reversed and remanded.
    O. M. Spencer, F. T. Hughes and Palmer Trimble for appellants.
    (1) The statute was passed after the railroad had been constructed and was an attempt to take from it just that much property and thereby impaired the obligation of the contract and violated both the State and Federal Constitutions. Cooley’s Const. Lim., p. 721; Sturges v. Carter, 114 U. S. 519 ; Bailey v. Railroad, 4 How. (Del.) 389; Bridge Co. v. State, 18 Conn! 53; Railroad v. Chappel, 124 Mich. 72; People v. Railroad, 52 Mich. 277; Klnnie v. Bare, 68 Mich. 625;. Re Cheeseborough, 78 N. T. 232. And the doctrine is supported by the decision of this court in Drainage Dist. v. St. Louis, — Mo. ■ — •. Where the question is raised as' to the power of the State in such cases this court says that the police power of the State may be invoked to make such land's fit for use, productive and habitable. Most certainly the' police power of this State was not invoked in the Act of 1907 to make this railroad habitable or fit for use. This railroad was chartered by the State of Illinois-and impliedly so by this State, when it came in with its railroad, -for the safe and convenient carriage of freight and passengers and it became obligated at its own expense to keep its right of way, track and transportation machinery in the highest possible degree of safety for such purposes,-and it has the right to use all or so much of its revenues therefor. It did not agree to go in partnership with any drainage district to keep the latter’s lands dry for any help back by such drainage district in keeping water off its track. This would necessarily change the relations of the railroad to the public and in so far transfer these duties to the drainage district. Suppose in such cases as shown by this testimony the levee should break and cause damage to shippers and passengers which would not otherwise have been caused, would not the railroad and drainage district be liable for such damages as being themselves a part of the drainage districts? These are important questions and go to show that the taking a railroad in as a part of a drainage district is a matter entirely foreign to the purpose for which the railroad was formed and that in no event should a railroad be a party to such undertakings. It would hardly be contended that a number of railroads owning right of way and depot grounds could form a levee or drainage district to keep the water off their lands and take in a lot of farm lands and make them help hear the costs, -and yet the converse of this is just what, is proposed hy this law and proceedings. (2) Tax is a liability created by statute. City of St. Louis v. Newmons. 45 Mo. 138; Turner v. Burns, 42 Mo. App. 94; Moberly v. Hassett, 127 Mo. App. 11. There can be no tax where there is no law imposing it. There is no implied obligation to pay taxes. They are not contractual obligations, and this is especially so where a local tax is sought to be imposed for the especial benefit of the few. Every dollar’s worth of property in the State stands absolutely exempt from tax unless there is a statutory law imposing it, so then you can not go back with a law and tax property which before that time was exempt any more under sect!on'14, article 2, of the Constitution of this State than you could pass an ex post facto law as to crimes and their punishment. Cases supra; Louisville Water' Co. v. Commonwealth of Kentucky,' 170 U. S. 127; Wain v. Beverly, 55 N. J. L. 544; Livingston v. Railroad, 60 Mo. 515. This law would send the assessing board as far back as the organization of this district, probably in the ninetys, and to charge it and its railroad with a debt and lien on its property, without any question as to the thousands of dollars damages done to it, as shown in this evidence by the levee company, and to a time when even if the law had included the railroad and had the taxes been then properly assessed, such taxes would have been barred by the limitation laws of this State. Moberly v. Has-sett, 127 Mo. App. 1L (3) Retroactive acts are prohibited by the Constitution of Missouri, sec. 15, art. 11. Under this Constitution (and the Constitution of. the United States as well) the Legislature cannot go back and create or impose a tax or assessment on this defendant where during the time such property was exempt from such tax, such a law would be retrospective and void and deprive the party of his property without due process of law. It might go back and provide a remedy for collecting a tax where the property was legally bound but through some omission of the taxpayer or the taxing authorities the property was not legally assessed or the taxes paid, but not otherwise. Yanata v. Johnson, 170 Mo. 269 ; Livingston v. Railroad, 60 Mo. 516; State v. Yoglessing, 183 Mo. 1’7; Wain v. Beverly, 55 N. J. L. 544; Sturgess v. Carter, 114 U. S. 511; Water Co. v. Commonwealth of Kentucky, 170 U. S. 127; Cook v. State, 101 Ind. 446; In re Pequest River, 42 N. J. L. 553.

      G. T. Llewellyn for respondent.
    (1) The fact that this act (Sec. 5708, R. S. 1909) was passed after defendant railroad was built would not effect its constitutionality. The validity of a special assessment does not rest upon any theory of the assent of the property-owner, or upon any theory of contract between the property-owner and the public. 1 Page & Jones Taxation by Assessment, secs. 15 and 35. Every statute will be presumed to be constitutional till the contrary plainly appears and it is only when it manifestly infringes some provision of the Constitution that it can be declared void. Deal v. Mississippi Co., 107 Mo. 464; Kenefick v. St. Louis, 127 Mo. 1; North Park Dist. v. Scarritt, 127 Mo. 642; State ex rel. v. Mason, 153 Mo. 23; Endlick on Statutory Construction, sec. 283. The constitutionality of special assessments for public improvements has always been upheld in this State. Levee Co. v. Hardin, 27 Mo. 486; Eyerman v. Blaksbey, 78 Mo. 145; Morrison. v. Morey, 146 Mo. 543; Construction Co. v. Railroad, 206 Mo. 172; Ross v. Kendall, 183 Mo. 338; Meir v. St. Louis, 180 Mo. 391; Moberly v. Hogan, 131 Mo. 19; Gibson v. Farrell, 106 Mo. 437; St. Louis v. Speck, 67 Mo. 403 ; G-arrett v. St. Louis, 25 Mo. 505; Lockwood v. St. Louis, 24 Mo. 20; Newby v. Platt County, 25 Mo. 258; Land & Stock Co. v. Miller, 170 Mo. 240; State ex rel. v. St. Louis, 67 Mo. 113. And the Legislature has a right to delegate the power to levy local assessments. 1 Page & Jones, Taxation by Asst., secs. 244 and 245; French v. Barber Paving Co., 181 U. S. 324, 158 Mo. 534; Merchants Exchange v. Knott, 212 Mo. 616. (2) There is no exemption from taxation of railroad property in this State. Even if such property was expressly exempted from taxation for county and state purposes, it would not be exempt from special assessments for benefits. Railroad v. St. Joseph, 39 Mo. 476; Railroad v. Passaic, 54 N. J. L. 340. (3) If the.law making body, the Legislature, intended the act to be retroactive when passed, it is so. It is just a question of the intent of the Legislature. State ex rel. v. Walker, 80 Mo. 613; State ex rel. v. Auditor, 52 Mo. 578; State ex rel. v. Auditor, 41 Mo. 25. The act, sec. 5708, only changes the method of procedure, in estimating benefits. There is no vested right in any particular mode of procedure. Railroads were subject to assessment for the benefits before the passage of this act, simply as so much land, so many acres. Now this act subjects them to assessment also, but benefits are to be estimated by the mile instead of by the acre, there is no Vested right impaired. Even if property was once exempt from taxation, the Legislature may subject it afterwards to tax burdens. Washington University v. Rowse, 42 Mo. 308. But the Legislature or Constitution of this State never has exempted railroads from special assessments for benefits received.
   GRAVES, P. J.

The plaintiff, “The Des Moines and Mississippi Levee District Number One,” under its corporate name filed its petition in the circuit court of Clark county, August 24, 1908, asking that the defendant railway company be summoned into court to show cause, if any it had, why its roadbed and .right of way should not be included in and made part of the levee district and be assessed with such benefits as it had received or might thereafter receive hy reason of the improvements made and to be made by the said levee district. The petition was filed under the Act of 1907, and that portion relating to the course of proceedings reads:

“Before the proceedings had in this section shall be had, the board of supervisors shall file in the office of the clerk of the circuit court of the county in which such levee district is, or may be located, a petition reciting the organization of such levee district, the location of such railroad or railroads within its limits, the improvements made, or to be made, as shown by the report, maps, plans and profiles by the topographical survey of the topographical engineer and that the improvements already made or proposed to be made, will be of material benefit to such railroad company or corporation, and asking that such railway company or corporation be summoned into court to show cause why such railroad right of way, roadbed or track belonging to or owned by such railway company or corporation should not be included in and made a part of such levee district, and be assessed with such benefits as will, or have accrued to it-by reason of the improvements made, or proposed to be made. Such railway company or corporation, after having been duly summoned, shall, on or before the third day of the term of court to which it may have been summoned to appear, file its objection or objections in writing, if. any it may have, why it should not be included in and made a part of such levee district, and be assessed with benefits; and all such objections shall be heard by the court in the summary manner, without any unnecessary delay.” [Laws 1907, p. 336.]

The petition follows the language of the statute. The cause upon the petition of defendant was removed to the Federal court, but upon motion of the plaintiff was remanded to the State court. The many points made appear fully in the answer which reads:

“Now comes the defendant Chicago, Burlington & Quincy Eailroad Company, a corporation organized and existing under the laws of the State of Illinois, and for answer and objections to the matters and things stated in plaintiff’s petition herein, states:
“That it has no knowledge or information sufficient to form a belief as to the allegations in plaintiff’s petition contained, and therefore denies each and every one of said allegations therein contained.
“For further answer, defendant states that heretofore the defendant in this cause filed a petition and bond under the provisions of the act of Congress for the removal of causes from the State to the Federal courts. Said petition prayed to have said cause removed to the circuit court of the United States, Northern Division of the Eastern District of Missouri, and that defendant did file papers in said United States court, as provided in the order of removal, and that thereafter said United States court, upon the allegations of plaintiff, and by order of court, remanded said cause to this court, to all of which actions this defendant objected and excepted to the rulings of said court, and herein renews its exceptions and avers that-the cause was properly removed from this court to said United States Circuit Court, and that the cause upon said removal vested in said United States court.
‘ ‘ For further answer, this defendant says that the alleged act of the Legislature of this State, known as section 8365-A of the Legislature of Missouri of 1907 is null and void as against the rights of this defendant in the premises herein, in this, that said act attempts to divest this defendant of its vested right in the premises, and to charge this defendant with a debt of the plaintiff corporation long since created by said corporation upon the property within its jurisdiction and has been in whole or in part paid by the said corporation.
‘ ‘ That said' act deprives this defendant of its rights under the laws of this State existing at the time said drainage and levee district was formed, in this that defendant had no right to participate in or become a member of said levee district, nor have its property assessed with such equal proportion of alleged benefits as were necessary for the purpose therein in proportion and equally with all other owners of land in said levee district.
“Answering further, defendant says that said act attempts to make this defendant a part of said district without its consent and without any right under the laws when said district was formed to participate and become a part of said district when the same was being formed.
“Defendant, further answering, says that the laws relative to plaintiff’s district give no authority to levy and collect taxes other than for the construction and maintenance of such levee district, and that, if defendant shall be assessed as prayed for in plaintiff’s petition, the money so collected upon said assessment would not be thus collected for the construction or maintenance of said levee district, but for the sole and only use of the plaintiff herein, as profit or excessive money in its hands.
* Further answering, defendant says that said act is special and class legislation, and is void within the Constitution of this State and against the defendant in the premises herein.
“That said act is null and void within the meaning of the Fourteenth Amendment to The Constitution of the United States and seeks to take property of this defendant for the use of plaintiff without due process' of law.
“Further answering, defendant says that the acts of plaintiff herein seek to deprive this defendant of the equal protection of the laws within the meaning of the Fourteenth Amendment to the Constitution of the United States.
“Further answering, defendant says that, plaintiff seeks by judgment and order of this court to assess defendant for benefits which it is alleged defendant receives by said levee district, when, in law and in fact, it is the duty of the board of supervisors to appoint commissioners, disinterested freeholders of the county, and assess benefits accruing to each piece of land in whole or in part with the name of the owner thereof.
“Having fully answered and stated defendant’s objections herein, this defendant asks to be dismissed with its costs in this behalf laid out and expended. ’ ’

Reply was a general denial. The cause was tried and a decree entered for the plaintiff. The material findings and the decree proper read:

“That the .right of way, roadbed and embankments owned by defendant corporation, occupied and used for railroad purposes, is within the limits of plaintiff levee district.
“That the board of supervisors of pláintiff levee district have filed in the office of the clerk of this court a petition reciting ‘the organization of plaintiff levee district, the location of defendant’s .railroad within its limits, the improvement made or to be made as shown by the report, maps, plans and profiles by the topographical survey of the topographical engineer and the improvements already made and proposed to be made, will be of material benefit to defendant railroad corporation and asking that such railway corporation be summoned into court to show cause Avhy. such railroad right of way, roadbed and track owned by defendant corporation should not be included in and made a part of plaintiff levee district and be assessed with such benefits as have or will accrue to it by reason of the improvements made or proposed to be made.’ '
“That the improvements already made and to be made are and will be of material benefit to defendant. That all that part of defendant’s right of way, roadbed and track where the same crosses the west line of section thirty-three, township sixty-five, range six west, in Clark county, Missouri, and running thence southeast,1 east and northeast to the east line of section five, township sixty-four, range five west, and from the crossing of Clay and Pine street in the old town of Churchville, now called Alexandria, south and south-west to G-ridley street in Hill’s addition to the old town of Churchville, now called Alexandria, all in Clark county, Missouri, is within the limits of plaintiff levee district.
“ It is therefore ordered and adjudged by the court that the objections of defendant filed herein be and they are hereby overruled and that the defendant’s railroad, right of way, roadbed, track and embankments owned by defendant railroad company within the limits of plaintiff levee district be and the same is included and made a part of plaintiff levee district, and included within said levee district.”

From such decree defendant has appealed and urges all of the divers matters set out in its answer. The evidence is brief and largely formal and can best be taken with the discussion of the points urged for reversal.

I. The question of jurisdiction urged in the answer is not specially urged in the brief here. The Federal court has declined jurisdiction and the • State court has proceeded to judgment. Counsel*in oral argument stated that the question was injected in the answer to the end that it might be urged in the United States Supreme Court should the ease reach that court. We shall not discuss the authorities on this question. In our judgment there was no error upon the part of the State court in proceeding under the facts of this case.

II. The defendant next assails the petition and urges that the district itself has sued, when the action should have been instituted in the name of the board of supervisors. The Act of 1907 (Laws 1907, p. 336) was an act amending article 7 of chapter 122, Revised Statutes 1899. The amendment consisted in adding a new section to be known a.s section 8365a. This sec-tion so far as it relates to the procedure we have set out in the statement. To more fully understand the proceedings, the first part of the section had better be set out. That portion reads:

“If there is or shall be within the limits of'any levee district now, or hereafter organized under this article, any right of way, roadbed or embankment belonging’ to or owned by any railway company or corporation, occupied and used for railroad purposes, that is, or will be benefited by the construction of a levee or levees, dykes, embankments, ditches, drains or other improvements, the same shall be assessed with such benefits, and such assessment hall be made in the manner and by the means provided in section 8365 of this article, and the board of supervisors shall appoint an additional board of commissioners, three in number, possessing the same qualifications as prescribed in said section 8365, who shall proceed as therein provided, and such assessment shall be estimated by the mile in-» stead of by the acre.”

Following this is the language quoted in the statement. This levee district had been organized, some years prior to the institution of the present action. It will be observed that the law reads: “Before the proceedings had in this section shall be had, the board of supervisors shall file in the office of the clerk of the circuit court of the county in which such levee district is, or may he located a petition,’,’ etc. The word “proceedings” hereinabove used evidently refers to what precedes it in this section, which language of the section we have hereinabove just quoted. That proceeding is “and such assessment shall be made in the manner and by the means provided in section 8365 of this article, and the board of supervisors shall appoint an additional board of commissioners, three in number, possessing the ¡parné qualifications as prescribed in said section 8365, who shall proceed as therein provided, and such assessment shall be estimated by the mile instead of by the acre.”

In other words taking the whole section it appears that there first must be action by the circuit court to determine whether or not the railroad property can be assessed for benefits, and if this be found in the affirmative, then the other proceeding of actual assessment takes place. Now with this view of the situation can the levee district in its own name properly present the petition to the circuit court asking that court to determine the fact whether the property of the railroad company is subject to an assessment of benefits? Or must this petition be in the name of the board of supervisors ? The law says that the board of supervisors shall file the petition, but it does not say how such petition shall be entitled. By the law these districts when organized are by the court declared and decreed to be public corporations of the State. [R. S. 1899, secs. 8362 and 8253; now R. S. 19091, secs. 5704 and 5499.] It will be seen that the levee act borrows much from the drainage act by express reference thereto. In the case at bar this public corporation is the real party interested. The board of supervisors are but the agents of the corporation. They are not made trustees for the corporation. We therefore are of the opinion that the suit was instituted properly.

But if it were not this matter was not challenged below either by demurrer or answer. The case proceeded there as if the proper parties were in court, and it should so proceed here. The question is raised here for the first time.

II. It is also urged that it is violative of charter rights to require a railroad company to participate in the reclamation of lands. That to so require a railroad to help maintain a levee district would be to require it to do things not provided fox in its charter. As stated in the oral argument, railroads were not organized to reclaim overflow lands. We are not impressed with this contention. The assessments of benefits are justified under the police power of the State rather than the taxing power. The theory is that the general welfare is promoted by this reclamation of overflow lands. The term “general welfare” includes the public health as well as other things which aré the special wards of the police power of the State. We see no reason why the police power may not reach the corporation the same as the individual, and this too without violating constitutional rights. As to whether the corporation’s property will be benefited is a question of fact to be determined, but if such fact is determined and it is properly held that the corporation’s property will be benefited, the assessments of benefits will not deprive it of its property without due process of law, or be violative of any other constitutional provisions. It must be borne in mind that the sole question here involved is whether or not the finding that defendant’s property has been ox will be benefited is proper. The circuit court does not assess benefits. That is done later. Of course, if the law which authorizes the circuit court to determine that fact is unconstitutional, that would end this controversy, but we are not so impressed. The law as above indicated seems to be a just law, and violative of no constitutional provisions. The law simply imposes upon the corporation what it imposes upon the individual. But as said, this imposed duty has its origin in the police power of the State. Nor do we think this holding in any way contravenes what was said in Sugar Creek Drainage District v. Turney, 235 Mo. 80.

This contention is therefore overruled. This of course only applies to the general proposition that a law authorizing the property of a railroad company to be brought into a levee district, if its property is in fact benefited, is constitutional. Other points are urged as to this particular law which we will discuss later.

IV. But it is urged that although it be conceded that the Legislature in the exercise of the police power of the State could pass a law which would subject the property of railroads to the assessments of benefits in levee and drainage districts, yet this particular law is bad because it not only authorizes the bringing of the railroad property into the levee district after the district has been formed, but authorizes the assessments of benefits which had theretofore accrued to its property by reason of the work done,- as well as the benefits to accrue for work to be thereafter done. This is the serious question in the case. The law speaks of assessing the property with ‘ ‘ such benefits as will, or have accrued to it by reason of the improvements made or proposed to be made.” The judgment in the case says: “That the improvements already made and to be baade will be of material benefit to defendant.” Both under the law and the judgment the -property might be assessed with benefits for work done before the property was included in the district. These benefits are only assessed to .pay for the improvements. The closing part of the decree in this case makes thei property of defendant a part of the levee district. In fact the decree covers but two points, (1) that the property has been benefited by the work already done and will be benefited by work to be done, and (2) that such property is made a part of the levee district. Now the question is whether or not that part of the law can stand, which authorizes the assessment of benefits fox improvements made prior to the time defendant’s property became a portion of the levee district. If the law is bad in this regard the judgment is likewise bad, because it follows the statute, and under it the commissioners appointed would no doubt assess for both the benefits by reason of improvements already made, as well as the benefits for improvements to be made.

For the plaintiff it is urged that the property of the defendant was already in the district, and the new law only changed the method of assessmént from the acreage plan to the mileage plan. This contention is not borne out by the record. In the first place the judgment in this case decrees “that the objections of defendant filed herein be and they are hereby overruled and that the defendant’s railroad, right of way, roadbed, track and embankments owned by defendant railroad company within the limits of plaintiff levee district, be and the same is included and made a part of plaintiff’s levee district and included within said levee district.”

The decree, therefore, shows that for the first time, by this proceeding, the property of. defendant is made a part of the levee district. In oral argument it was stated that the defendant was originally made a party to the proceeding and that such fact was shown by the record. The only thing which we find is the judgment above discussed, and a certain admission made of record, which thus reads:

“By Mr. Llewellyn: I offer the articles of incorporation of the plaintiff which is a record of this court.
“Admitted in evidence in words and figures as follows:
“The respondent herein admits that the articles of incorporation referred to show that the plaintiff, respondent company, was organized as such drainage district in 1904, and that it built its levees and drainage districts in the year 1905, and that appellant makes no issue of law or fact on that question. The further agreed statement of facts was then made and entered of record in the court below in words and figures as follows:
“It is agreed that map of the Des Moines and Mississippi River Levees District showing the location of drainage ditches, as in evidence, which said map1 is called Exhibit 1. That the drainage ditch spoken of by the witness Snively starts a mile and a half northwest of the railroad and runs southeasterly to the railroad right of way on the north side of the railroad right of way and then parallel with the right of way east about two miles, then turns and crosses the right of way and the railroad track and goes south direct to Pox river; that this drain collects water from the northwest of the railroad where it starts and carries it down in said direction to Pox river. That the drain has an average width of twenty feet as the top and eight feet deep.”

This falls far short of showing that the defendant was a party to the original proceeding, if that be a material question in the case. So that under this record, we are driven to answer the question: Is that portion of this law which purports to authorize the assessments of benefits for work already done, valid and binding? If so the judgment, nisi, may be right, if right on the facts shown; and if not so, then it is erroneous.

The exact question now confronting us was not discussed in either of our recent cases : Squaw Creek Drainage District No. 1 v. Turney, 235 Mo. 80, and In re Little River Drainage District v. Railroad, 236 Mo. 94.

As said in the preceding paragraph, these drainage and levee districts are organized by the State in the exercise of its police powers. In Morrison v. Morey, 146 Mo. l. c. 561, this court said: “It is a public political subdivision of the State which the State has the power to create, under its police powers, and as such subdivision it exercises the prescribed functions of government in the district. ’ ’

And in the same case, 146 Mo. 1. c. 564, it is said:

“But while it is a public subdivision of the State and not a private corporation, it does not follow that the money to be raised from the landowners to carry out the objects intended, is a tax. It is an assessment which is justified by the benefit, public and private, conferred. The cost of the abatement of nuisances, for the construction of sewers or for the improvement of a street, may be assessed against the property benefited, notwithstanding the public and the owner are .both interested. As a tax it would be unconstitutional, because not uniform (Const.., sec. 3, art. 10), and because not in proportion to the value of the property (Const., sec. 4, art. 10), and because it is prohibited by the limitations of section 12 of article 10 of our Constitution, but being an assessment of benefits and in no sense a tax it is a' constitutional exercise of the power of the State. [Lockwood v. St. Louis, 24 Mo. 20; Garrett v. St. Louis, 25 Mo. 505; Egyptian Levee Company v. Hardin, 27 Mo. 495; St. Louis to use v. Clemens, 36 Mo. 467; Uhrig v. St. Louis, 44 Mo. 458; Sheehan v. Hospital, 50 Mo. 155; Southern Hotel Company v. St. Louis County Court, 62 Mo. 134; Farrar v. St. Louis, 80 Mo. 379; St. Joseph v. Owen, 110 Mo. 445; Clinton to use v. Henry Co., 115 Mo. 557; Roosevelt Hosp. v. Mayor, 84 N. Y. 108; Duke v. O’Bryan, 39 S. W. 444; Nugent v. Levee Com’rs, 58 Miss. 197; State ex rel. v. Stewart, 74 Wis. 620; Dillon, Mun. Corp. (4 Ed.), sec. 755.]
“Assessments for the construction of levees to protect from overflow may be and usually are levied on lands bordering on the stream of water from which the danger is anticipated, and are properly benefits, as contradistinguished from taxes, and laws authorizing them are constitutional. [Crowley v. Copley, 2 La. Ann. 329; Sessions v. Crunkilton, 20 Ohio St. 349; Yeatman v. Crandall, 11 La. Ann. 220; Wallace v. Shelton, 14 La. Ann. 498; Bishop v. Marks, 15 La. Ann. 147; McGehee v. Mathis, 21 Ark. 40; Jones v. Board Aid., 104 Mass. 461; Egyptian Levee Co. v. Hardin, 27 Mo. 495; Hagar v. Supervisors, 47 Cal. 231; People v. Hagar, 52 Cal. 183; People v. Mayor, 4 N. Y. (Com.) 430, 495; Sears v. Cottrell, 5 Mich. 251; Emery v. Gas Co., 28 Cal. 345.]”

This case has been continuously followed by this court, and it is cited even in the late Turney case. But grant it to be true that we have constitutional power to incorporate levee districts, and constitutional power to include railroad properties therein, and constitu-, tional power to assess benefits as against such railroad properties to pay the costs of the work, does that authorize the Legislature to direct the assessment of benefits for work already done and paid for before the property is taken into the district? We think not. It may be that to the extent that the improvements had not been fully paid for the benefits could be assessed, on the theory that as to that unpaid balance all property legally in the district prior to payment should pay for the benefits accruing by reason of the work done in anticipation of the fund, but'we shall not go further. We should at least limit the law to benefits to accrue, after the lands are brought into the district, or benefits accruing by reason of work done, at the time the land is taken in, but not yet paid for by an assessment of benefits on the whole district, including the added lands. In this sense the issuance of bonds should not be construed as being payment for the work. The payment of the bonds would he the payment contemplated. These assessments of benefits are made to pay for improvements as they progress, and not to repay for improvements already made and paid for by other parties. The record does not disclose the exact status of this levee district, but that portion of the law and .the judgment which authorizes the assessment of benefits for improvements already made and paid for is beyond the pale of the constitutional power of the Legislature. In our judgment the Legislature cannot authorize the bringing in of new lands in a levee district and say that it must pay benefits for work already done and paid for by the district as formerly constituted. As we have seen it can authorize the bringing in of new territory and it can authorize the assessments of benefits, to pay for the improvements to be made. But when it goes to compelling benefits for improvements already paid for, the law goes a step too far. Such act is the unauthorized taking* of private property. It is the taking of private property to recompense or repay the district for improvements made. It is not the assessment of benefits for the doing of an advantageous act toward the property, but for the repayment of an expenditure already made. The covering of an existing debt on the district for improvements made before the property is taken in can only be justified on the theory that the improvements are not in law considered as made until paid for by assessments. To hold that the assessments of benefits may be in proportion to the outstanding debt and the proposed new improvements is, in our mind going to the limit, and we will not g;o further.

From what is said it follows that the judgment nisi is too broad. Such judgment is therefore reversed and the cause remanded for further procedure in accordance with the views herein expressed. All concur.


source: Caselaw Access Project

author: LAMM, J. VALLIANT, J.

license: Public Domain

text:
    STAR BOTTLING COMPANY v. LOUISIANA PURCHASE EXPOSITION COMPANY, Appellant.
    Division One,
    February 29, 1912.
    1. NEW TRIAL: Reference Case. There is nothing peculiar to a reference case that prohibits the award of a new trial where a proper motion looking to that end is interposed.
    2. -: -: What Matters May Be Retried. Where there has been a reference by consent of parties, and the referee has made his report, accompanied by the evidence, and exceptions thereto have been ruled upon, the new trial would not necessarily cut behind the order of reference and the report, and call for a new referee or for new evidence covering the whole case and a new report,' but would be confined to the hearing on the exceptions on both sides, etc. However, for good cause shown the court might in a proper case, on a retrial, order the referee to hear further evidence or even order a new reference, if a just determination of the issues required it and .the exceptions were broad enough to cover the point. But as a general rule, a new trial in a reference case only opens, in the first instance, the issues on the exceptions to the report, the rulings thereon and the judgment.
    8. -: Asked by Both Parties: Granted to Plaintiff. Where both plaintiff and defendant filed motions asking for a new trial, and defendant’s was overruled and plaintiff’s sustained, neither party can appeal. If a litigant wishes to preserve the right to complain of a new trial granted to his adversary, he must not ask one himself; for if either get it, both get it, and to that the one who did not get it consented by asking for it himself.. Before a litigant can appeal he must be aggrieved (Sec. 2038, R. S. 1909), and ho one can be aggrieved by that to which he consented.
    [The case of Cramer v. Barmon, 193 Mo. 327, insofar as it conflicts with these views, and insofar as it holds that there can be two appeals from the same judgment, is disapproved. Held, by VALLIANT, C. J., in a separate concurring opinion, that the decision in Cramer v. Barmon does not conflict with the decision in this case, and that that case was correctly decided.]
    4. -: -: -: Reasons for Granting It. Nor, in such case, will appellant be allowed an appeal because the reasons for granting respondent the new trial were unsound. When a new trial is granted the reasons for granting it fill no appreciable office thereafter.
    5. -: -: -: Interlocutory Order Refusing to Dismiss. The fact that the court, by interlocutory order, overruled respondent’s motion to dismiss appellant’s appeal on the ground that it was not entitled to one, is no reason why that error should not be later corrected, when the court, upon full consideration, are of the opinion that the motion should then have been sustained.
    Appeal from St. Louis City Circuit Court. — Hon. M. G. Reynolds, Judge.
    Aeeirmbd.

      F. A. & L. A. Wind, J. Wm. Taylor and Sim T. Price for respondent.
    No error can be assigned for granting a new trial where appellant had asked for a new trial. Dierman v. Bag Co., 144 Mo. App. 474.

      Joseph H. Zumbalen and Henry T. Ferriss for appellant.
    (1) Respondent’s first contention is that appellant cannot complain of the order granting respondent a new trial, because appellant also asked for a new trial, which motion was overruled. This court has heretofore decided that point adversely to respondent’s contention. The respondent filed its motion to dismiss this appeal at the April term, 1909, of this court, basing said motion upon the same ground now again urged in its brief, and said motion was, after consideration by this court, overruled. The respondent is concluded by said ruling and should not be permitted to raise said question again on this appeal. It is the settled rule of practice that an appellate court, having overruled a motion to dismiss an appeal, will not consider a subsequent motion to dismiss based upon the same grounds. Levy v. Levy, 107 La. 576; Ferguson v. Bruckman, 164 N. Y. 481; Murphy v. Stelling, 1 Cal. App. 95; Ellis v. Moon, 40 Wash. 114. Although the respondent has not filed a second motion to dismiss, yet the effect, of his again raising the question in his brief is precisely the same as though he had filed such a motion, and is within the reason of the rule. If, however, the court should nevertheless deem it proper to re-examine the question, we submit that the former ruling thereon was correct and should be adhered to. The statute gives to “any party to a. suit aggrieved” the right to appeal “from any order granting a new trial.” R. S. 1909, sec. 2038; McFarland v. Pierce, 151 Ind. 546; Lamar v. Lamar, 118 Ga. 684; Kinealy v. Macklin, 67 Mo, 99. The motions being based on diametrically opposed theories of' the law governing the case, it would be absurd to say that the same result was secured whichever motion was sustained, or that the court’s action in sustaining plaintiff’s motion is just what defendant asked for, and that therefore defendant cannot be aggrieved. What defendant asked for was something entirely different, and the court refused' to grant it. Cramer v. Barmon, 193 Mo. 327.
   LAMM, J.

Appellant’s charter expired pending this appeal by limitation. By stipulation the (unnamed) trustees of the Louisiana Purchase Exposition Company enter their appearance as party defendant, and are • substituted by consent of respondent.

The bottling and exposition companies entered into an extensive contract giving the bottling company a “soft drink concession” at the World’s Fair in St. Louis in 1904. That concession gave the bottling company the right to manufacture and sell on the exposition grounds carbonated water, flavored and unflavored, lemonade, orangeade, cider, root beer, pearine, ice creams, ices, soda water and all hot and cold drinks usually served at soda fountains, and all other so-called “soft drinks.” Certain reservations were made in favor of restaurants,- lunch stands and exhibitors of spring, mineral or other-water, root beer, malto grapo, orangeade-, cider, grape juice, chocolate, cocoa, coffee and tea, and. the right to provide free drinking water was reserved to the exposition company.

During the whole life of the exposition there was friction in the relations of the contracting parties. Complaints were made by the bottling company, and rasping controversies arose on the meaning of this, that or the other term of the contract — for example: On the contract authority of a certain officer of the exposition company to settle controversies, on whether the bottling company held divers and sundry exclusive rights, on whether it got at the hands of the exposition company the number of stands contemplated by the contract as well as sewerage, water and light, on whether the exposition people dealt fairly with the bottling people in changing stands, on whether water was a “soft drink” and could be sold by the bottling-company after the exposition company permitted' the sale of drinking water on the ground, on the meaning of “hot drinks,” on whether ice cream cornucopias (yclept “gopherettes”) pertained-to an ice cream concession or were a food because of the edible wafer wrapping the ice cream and pertained to a restaurant or lunch, stand concession, on whether the bottling company could make and sell coffee as restaurants make and sell it or must be confined to a kind of coffee usually prepared and drawn at soda fountains, and so on and so on.

When the exposition closed plaintiff sued, alleging performance on its part and non-performance on the other side. Issue was joined on its fifth amended petition. Thereby it formulated a long list of grievances, alleged breaches of the concession contract m many ways, claiming damages in the sum of $257,351.24.

In its answer the exposition company set forth its theory of the contract, pleaded compliance therewith and non-compliance by the bottling people, and then set np a counterclaim with many specifications, claiming damages fox breaches of the contract on the part of its adversary in the sum of $14,143.59.

A reply came in consisting of allegations of confession and avoidance, waiver, estoppel and denial.

By consent of all parties the cause was referred to John M.-Holmes, Esq., of the St. Louis bar, “to try all issues and report his decision with all convenient speed.” The learned .referee heard a volume of testimony and made and filed his report. To that report in due time both the bottling and the exposition company filed formidable written exceptions. Presently the court overruled all exceptions, approved the report of the referee and judgment followed. Thereat both companies filed their several motions for a new trial. Presently that of the exposition company was overruled, that of the bottling company sustained (the court giving reasons in a memorandum filed) and a new trial was granted. From that order the exposition company on apt steps and in due time appealed.

The first question is: Will an appeal lie from an order, nisi, granting a new trial uihen both parties litigant ashed a neiv trial and one is grmited to eitherf Or to put the question more pointedly: Will an appellate court review and pronounce upon the reasons assigned below for granting a new trial, when both parties litigant ashed for one and one is granted to either?

Any court of general jurisdiction in Missouri may award a new trial on any issue on cause shown. [R. S. 1909, sec. 1994.] So, at a pinch, ex debito justiciae, and of inherent right, it may award one on its own motion during the term. [Ewart v. Penniston, 233 Mo. 695.] The statute quoted means, of course, that a new trial may be awarded generally (as here) on all the issues, for a power to award on any issue is broad enough to cover all.

There is nothing peculiar to a reference case prohibiting the award of a new trial where a proper motion looking to that end is interposed. Such is within the reasoning of State ex rel. v. Hurlstone, 92 Mo. 327, and cases cited, and Maloney v. Railroad, 122 Mo. 106.

What is a new trial where one is granted generally by a trial court? To attempt to define a term that defines itself is to invite danger of making obscure what is already clear- — to conceal the fruit with leaves. The term “new trial” means what it says— i. e., a trial anew, de novo, — “with as little prejudice to either party as if it had never been heard before. No advantage is taken of the former verdict on the one side, or the rule of court for awarding such second trial on the other.” [3 Black. Com., *391.]

In a case where there has been a reference by consent of parties, as here, and the selected referee qualified, took evidence, made his report, accompanied by the evidence, and exceptions have been filed thereto and ruled upon, as here, then (whatever conclusion might arise by mere cold definition and a chopping of logic) the common sense of it is that a new trial would not necessarily cut behind the order of reference and the report, and call (whether or no) for a new referee or for new evidence covering the whole case and a new report; but a new trial would be confined to the hearing on the exceptions on both sides, the action of the court thereon which led directly up to and produced the judgment and the mischief to be abated. Those exceptions, those rulings and that judgment each and all would be opened up for re-examination and redetermination in the light of the evidence on file. We do not mean to rule that for good cause shown a court might not in a proper case on a retrial order the referee to hear further evidence, or even order a new reference, if a just determination of the issues required it and the exceptions were broad enough to cover the point. What we want to say is that, as a general rule (and this has a bearing on a contention made here that we should go into the reasons for granting a new trial) a new trial in a reference case only opens, as said, in the first instance, the issues generally on the exceptions to the report, on the rulings and the judgment — the exceptions and the report standing somewhat in the nature of pleadings on the final hearing, and the judgment following as a legal conclusion from the hearing and rulings on those exceptions.

We have been moved to say what we have about a new trial in a reference case because logically, on strict and last analysis, a new trial might mean beginning all over again in hearing testimony. It would mean that in a jury trial. But the trial undone here by the court’s order is not a jury trial. It is a trial by the judge after the trial by the referee is over.

Speaking of logic in connection with legal exposition, it will do to say that no argument against the use of a thing can be drawn from the abuse of the thing {Ex abusu non arguitur ad usum) and yet the use of logic may be abused and care is due on that score. For instance: Logic was logic in the poetical story of the “Deacon’s Masterpiece, or, the Wonderful One-Hoss Shay” (q. v.). But the result was not satisfactory as the whole bar of Missouri know. Logic has its uses in administering law — high uses and many of them. But, after the last word is said, “the life of the law has not been logic. It has been experience.” [Holmes, Com. Law, p. 1.] Law, having to do with the practical, everyday affairs of mankind, should sub-serve the ends and purposes of good sense and broad justice, not those of mere logic, though when the two go hand in hand they are a helpful and pleasant pair of judicial handmaidens, and pexadventure, when they sit smiling as they often do on either side of a good judge at labor he feels restful. Why in a new trial in a reference ease, having regard to experience, order a new reference or further evidence at great delay and expense when the data for a just result is at hand?

An appeal was unknown at common law. It rests alone on statute. Before a litigant can appeal.he must be “aggrieved.” [R. S. 1909, sec. 2038.] If he is not aggrieved he cannot appeal. What grievance can a litigant have who gets what he asked for? How can he be injured in the way lie gets it, so long as he gets it? If the bottling company was alone loosed by the new trial, and the exposition company was left bound by the old trial, then indeed would it have a grievance. But it is not so, a new trial for one is a new trial for both in all that term implies. It is a loaf baked in the oven of the law to be sociably shared by both parties. Verity, withal, the benefits of a new trial, like the rain and the dew, descend alike upon the just and the unjust, on defendant as well as plaintiff — the terms “just” and “unjust” being used only for the purpose of the simile.

As appellant is not aggrieved, it was not entitled to an appeal in a case where its antagonist was granted a new trial and its own motion is overruled. [Deiermann v. Bag Company, 144 Mo. App. 474.] In that case Gray, J., speaking for the Springfield Court of Appeals, holds language in point, viz.: “If the court had sustained appellant’s motion for new trial and overruled respondent’s motion therefor, the case would have been in the identical condition that it was when the court overruled appellant’s motion and sustained the respondent’s. And this being true, the appellant was not aggrieved by the action of the court in granting a new trial, and the appeal is without merit.”

It is suggested that the Springfield Court of Appeals was without jurisdiction in the Deiermann case, it having gone there from St. Louis and the statute warranting that transfer having been declared unconstitutional (State ex rel. v. Nixon, 232 Mo. 496) and, therefore, that ruling is in the nature of obiter. That is so. But it arises to the dignity of sound exposition, and, with the benediction of our present vise, the brand “.obiter,” may be taken as effaced.

There is a maxim running that every consent removes error (Omnis consensus tollit errorem). Sometimes it is expressed in other ways' — for- example, consent always removes the effect of error, or consent heals error, or participating in error cures the error. Courts are fond of applying that maxim in many ways, for it is a fair and convenient rule. (For instance, Crum v. Crum, 231 Mo. l. c. 639, illustrates its application in one phase, and other illustrations abound in any volume of our reports.) We think the rule applies in this case, for do we not announce a proposition hitherto accepted and acted on by the bar, nisi, when we say that when both sides asked a new trial and one is granted to either, both are bound by the order and an appeal will not lie? We take it that ever since the statute allowed an appeal from an order granting a new trial (Laws 1891, p. 70) it has been the understanding of the bench and bar on the circuit that if a litigant wishes to preserve the right to complain of a new trial he must not ask one himself; for if either get it both get it and to that appellant consented. At least in the fifth of a century since the statute has been in evidence no appeal has come here of that sort.

It is argued, however, that we should go into the reasons given by the court for granting a new trial, and if we find them insufficient we should set the order aside — this, on the theory that by asking a new trial appellant consented to one, but not to the one it got. Otherwise, the argument runs, the court will be in the leading strings of its erroneous reasons when the new trial comes on, and in that way appellant is aggrieved. There would be much force in this argument if there was any rule, practice or good reason requiring a trial court to continue in the same mind it was when the new trial was granted, and was bound to rule in accord with its reasons for granting one; or if the successor of a trial court was in anywise precluded or handicapped by the reasons assigned by his predecessor in granting a new trial. But we know of no rule of that sort. To the contrary when a new trial is granted the reason for granting one, the ratio decidendi, fills no appreciable office thereafter. It has served its purpose and is drowned in the order. At the new trial the court presumptively will proceed to try and determine issues presented for its judgment in accordance with the law and the very right of the case. We have no call to presume or anticipate that error will be committed at the new trial. Yre deal here with error actually committed, not with imaginary or non-existing error, sounding in prophecy and hid away in the womb of the future. Both parties are at liberty to make their contentions below at the new trial, with the presumption they will be heard fairly and determined well. If they are not determined in that way it will be time enough for us to ’ interfere after the fact, and in the course of orderly procedure. If we were reversing and remanding a case for errors a different rule would apply. We ought to point them out, in such a case, so they could be avoided.

But it is argued this court overruled a motion to dismiss the appeal on the very point discussed in this opinion. We did overrule such a motion. But the question was novel in this court, we did not have the record before us at that time, nor did we stand informed by briefs and arguments of counsel. That interlocutory ruling was wrong. When a ruling is sharply wrong it accords with correct practice to correct it at the first opportunity in the same case. [Gardner v. Robertson, 208 Mo. l. c. 610.]

Finally we are referred to the ease of Cramer v. Barmon, 193 Mo. 327. The case is reported with a wrong title in the Kansas City Court of Appeals for we find it reported in 126 Mo. App. 54, as Cramer v. “Harmon.” We make two observations on that case, to-wit: First, it is not in point. Second, if in point, we would not follow it. Apropos to the last observation we make' some further observations, viz.: On a fiction (wholly contrary to the fact, based on a notion of the common law) that a judgment is not entered until a motion for a new trial is disposed of, it was reasoned out that since there can be but one final judgment in a ease where there are separate counts, or issues, or separate trials (R. S. 1909, secs. 1971, 2097) plaintiff could not, at one stroke, appeal from a judgment against him on the first count and from an order granting defendant a new trial on a second count. In that case plaintiff asked for $5000 on his first count, and the jury, coerced by the court, found against him. On the second count he got a verdict for $1500. The court granted defendant a new trial on the second count, refused plaintiff one on the first, and plaintiff undertook to appeal here from the result of tlie trial on the first and from the order granting a new trial on the second count. At that time we had jurisdiction' where the amount in dispute was over $4500. On that condition of things, we ruled we had no jurisdiction, that the only question here was on the order granting a new trial on the second count, of which the Kansas City Court of Appeals had jurisdiction. It was further held that if plaintiff desired to test the correctness of the result at the first trial as to the first count he must stand by with folded arms, await a determination of the appeal 'on the second count, and when that was determined on a first appeal he must then take-a second appeal on a new final judgment to be renclered below. That ruling was not administering justice without “delay” as the Constitution requires. Moreover, that case introduced an anomaly in the practice and by over nice reasoning and speculative refinements reached a result never in the mind of the lawmaker. "We assert boldly that there is no warrant in the written law for forcing tioo appeals when one will serve the purpose. Properly construed, section 2038, Revised Statutes 1909, does not forbid taking-up a final judgment on one count together with an order granting a new trial on a second count. Why force two, absent a mandatory statute? Is it the policy of our law to make two bites of one cherry and' multiply appeals? It is one of the comedies of case law that the Kansas City Court of Appeals quite missed our dainty reasoning. We sent that court the case. It took it and passed on the entire appeal on both counts and made an end of it. [Vide, Cramer v. Harmon, 126 Mo. App. 54.] I agreed to the Cramer case and make amends by retracting. Again, for appellate purposes in that ease, there was a final judgment in point of fact on the first count. It stood there a menace to plaintiff and he was entitled to be eased of it if erroneous. Could not plaintiff have appealed at once if the verdict had not been disturbed on the second count — this because of error in the trial on the first? It was so held in the Scott case, infra. Why does he lose that right because he got an additional right to appeal from the order on the second? In law do I lose what I have because the law gives me something-more? In effect, the entire case was disposed of below on both counts. Strictly, by the reasoning- adopted in the Cramer case, the first appeal could not itself be heard for it was premature, since (so ran the case) there was no final judgment settling all the issues of the case. In that sense the Cramer doctrine is a two-edged sword which, cutting both ways, cut out any appeal at all — a palpable absurdity. We have given a construction of our statutes in that behalf in Stone v. Perkins, 217 Mo. 586; Mann v. Doerr, 222 Mo. 1; Smith v. Kiene, 231 Mo. 239, and in Scott v. Parkview Realty Co., 241 Mo. —, on reasoning running counter to the Craméx case.

The premises all considered, the order granting a new trial is affirmed because appellant cannot question it — not because the reasons granting one are sound or unsound.

All concur; Valliant, J., in result in separate opinion.

SEPARATE CONCURRING OPINION.

VALLIANT, J.

I concur in the result reached in the opinion of my learned brother Lamm in this case, but I do not think that it conflicts with the decision of this court in Cramer v. Barmon, 193 Mo. 327, and I do not concur in the criticism of that. case, which in my opinion was decided correctly. The argument on which the criticism of that case is based is that although the law does not contemplate a judgment until the time allowed for the filing of a motion for a new trial has passed, and until such motion is overruled if filed, yet. in practice the judgment is usually entered as soon as the verdict is rendered, therefore there is in such case a judgment in fact though not rendered according to law, and it is argued that this court in the Cramer case should have treated the judgment in that case, entered in accordance with that practice, as if it had been a lawful final judgment on that count, notwithstanding it was entered before the motion for a new trial thereon had been overruled, and notwithstanding the positive mandate of the statute that in case of two or more counts no final judgment can be rendered on the verdict on one count until the issues on all the counts are tried and the whole case is ready for final judgment. But conceding, for the sake of the argument, that the long practice of entering a judgment as soon as a verdict comes in gives such, a judgment full force, what becomes of that judgment when the court sustains a motion for a new trial? Let us suppose one count, one verdict, and one judgment immediately following the verdict, then a motion for a new trial and an order sustaining the motion, what becomes of that judgment? The statute says if there are several counts a verdict on one count must wait until the issues in all the others are tried and all are' ready for final judgment. In the Cramer case there were two counts, a verdict for the defendant on the first count, a verdict for the plaintiff on the second, the court overruled the plaintiff’s motion for a new trial on the first count and sustained defendant’s motion for a new trial on the second count; there was therefore no final judgment on the second count, and if a judgment was in fact entered on the first count it was so entered in violation of the statute which positively forbade it. The order sustaining the motion for a new trial on the second count was not a final judgment, and no appeal could have been taken from it except for the express provision of the statute. On appeal from an order sustaining a motion for a new trial, the only question is, did the trial court err in sustaining the motion?

In the Cramer case as soon as the trial was ended the clerk entered judgment for the defendant on the, first count and for the plaintiff on the second count; plaintiff filed a motion for a new trial on the first count, which the court overruled; defendant filed a motion for a new trial on the second count, which the court sustained; the sustaining of the defendant’s motion left the issues under the second count open for trial;.there could therefore be no final judgment on that count while the order granting a new trial stood; the order had the effect to vacate the judgment which the clerk had entered immediately on the return of the verdict in that case, and since the statute says there shall be no final judgment on either count until the ease is ready for final judgment on all the counts it follows that the order sustaining the motion for a new trial on the second count vacated the judgment that had been entered on the first count. There being no ■final judgment on either count, the only thing the plaintiff could appeal from was the order sustaining the motion for a new trial on the second count. "With the second count open for a new trial the plaintiff could not have appealed from the judgment that had been entered against him on the first count, nor could he have injected into his appeal from the order sustaining the defendant’s motion for a new trial on the second count errors committed against him in the trial of the first count. That is what he attempted to do in that case, but this court said it could not be done. The only thing he could do was to complain of the error in granting the new trial on the second count, and then bide his time as to the first. But it is said that this might force the party to two appeals in the same case, and that is so, but it is so only because the statute expressly authorizes an appeal from-an order sustaining a motion for a new trial.

In' my opinion the Cramer case was decided correctly.

But there is nothing in the Cramer case contrary to the law as declared in the main opinion in the case at bar; here we have a petition of only one count, an answer containing a counterclaim, findings on all the issues and a judgment covering the whole case; each party filed a motion for a new trial, the court sustained the motion of one and overruled that of the other; sustaining the motion- of one opens the case for trial for the other as well.


author: BOND, C.

text:
    A. C. LUCAS and JOHN LUCAS v. JAMES W. TINSMAN, Appellant.
    Division One,
    February 29, 1912.
    Appeal from Knox Circuit Court. — lion. C. D. Steimrt,, Judged
    Reversed and remanded (according to stipulation).

      C. G. Fogle, L. F. Cotbey and Berlcheimer é Dawson for appellant.

      Campbell & Ellison, N. A. Franldin, F. II. McCullough and Iligbee & Mills for respondents. .
   BOND, C.

Since the argument and submission of this case a stipulation has been entered into by the parties whereby it is agreed that this cause shall be reversed with directions to the circuit court of Knox county to order the probate of the will of Sarah F. Tinsman, deceased. In accordance with the terms of said stipulation, the judgment of said circuit court will be reversed, and the cause remanded with directions to enter a judgment ordering the probate of the will of Sarah F. Tinsman; and the clerk of this court is hereby ordered to file the aforesaid stipulation with this opinion.

PER CURIAM. — The foregoing opinion of Bond, C., is adopted as the opinion of the court.

All the judges concur.


author: WOODSON, J.- GRAVES, J.-

text:
    THE GILSONITE CONSTRUCTION COMPANY v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
    In Banc,
    March 1, 1912.
    1. STREET IMPROVEMENT: Right of Way of Railroad: Liability to Assessment. The night of way of a railroad company, under the charter of St. Louis, is subject to taxation for local improvements the same as other lands abutting upon the street improved.

      Held, hy GRAVES, J., dissenting, that, since no lien against the small segment of the right of way against which the taxbill attaches, if legal, could be enforced, and since it is the established law of this State that a segment of a railroad cannot be sold under execution, the right of way of a railroad company cannot be assessed with a special taxbill issued in payment of a street improvement.
    2. -: -: -: Under Constitution. The Consta tution and laws of this State do not exempt the right of way of a railroad company from the assessment of special benefits. Such a right of way is not a public highway within the meaning of the constitutional provision exempting “public highways” from taxation.
    3. -: -: -: Due Process of Law: Equal Protection of the Law. The' charter provisions and ordinances of the city of St. Louis imposing special benefit assessments upon the right of way of a railroad company in payment for a street improvement, do not deprive the railroad company of its property without due process of law, and do not deny to it the equal protection of the laws, and are not violative of either the Federal or State Constitution.
    Appeal from St. Louis City Circuit Court. — Hon. Virgil Rule, Judge.
    Affirmed.

      R. T. Railey and James F. Green for appellant.
    (1) The judgment of the trial court makes the railway company liable without regard to the question of benefits to its property. It tbns violates, the ‘ ‘ due process” clause of the Fourteenth Amendment of the Federal Constitution, and of section 30, article 2, of the Constitution of Missouri. Norwood v. Baker, 172 U. S. 269; French v. Paving Co., 18l U. S. 324; Martin v. District of Columbia, 205 U. S. ■ 135; Lyon v. Tonawanda, 181 IT. S. 389; Farm Co. v. Detroit, 181 IT. S. 395; Detroit v. Parker, 181 IT. S. 399; Elliott on Eoads and Streets (2 Ed.), sec. 566. (2) The charter and ordinances of the city of St. Louis, if construed to authorize the levy of a special tax against the right of way of the railway company other than as to property fronting on the street to be improved, are opposed to the State law and therefore invalid. Laws 1905, p. 100; Secs. 22 and 23, art. 9, Constitution of Missouri; St. Louis v. Williams, 139 S. W. 340; St. Louis v. Worthman, 213 Mo. 131; St. Louis v. Klausmeier, 213 Mo. 125; St. Louis v. Telegraph Co., 96 Mo. 623; Ewing v. Hoblitzelle, 85 Mo. 78; St. Louis v. Dorr, 145 Mo. 478. (3) Defendant’s right of way is not liable to the lien of the special taxbills sued on. Laws 1905, p. 100; Page & Jones on Taxation by Assessment, sec. 594; 2 Elliott on Eailroads, sec. 786; Sweeny v. Eailroad, 54 Mo. App. 265; Dunn v. Eailroad, 24 Mo. 493; Dugan v. Eailroad, 43 Mo. App. 675; Village of Forest Eiver v. Eailroad, 197 111. 344.

      Echo. G. Kehr for respondent.
    (1) A special taxbill constitutes prima facie evidence of the liability of the property for the charge stated in the bill. The admission in evidence of the fourteen special taxbills sued on established a prima facie case in favor of the plaintiff. Charter of St. Louis, art. 6, sec. 25; Hernán v. Farish, 97 Mo. App. 393; Hernán v. Larkin, 108 Mo. App. 394; Paving Co. v. McManus, 144 Mo. App. 594; Eyerman v. Blakesly, 78 Mo. 147; Moberly v. Hogan, 131 Mo. 19; Paving Co. v. Ullmann, 137 Mo. 544. (2) Article 6, sec. 14, of the Amended Charter of St. Louis has been passed on and its construction and validity determined by this court. Collier Estate v. Pav. & S. Co., 180 Mo. 362; Meier v. St. Louis, 180 Mo. 391; State ex rel. v. St. Louis, 183 M'o. 230; Construction Co. v. Shovel Co., 211 Mo. 524. (3) The right of way of a railroad company in the city of St. Louis is subject to assessment for local improvements. Charter of St. Louis, art. 6, sec. 14; Construction Co. v. Railroad, 206 Mo. 172; Corrigan v. Kansas City, 211 Mo. 626; City to use v. Eddy, 123 Mo. 559; Railxoa'd v. Paving Co., 197 U. S. 430; Railroad v. Joliet, 153 111. 649; Railroad v. Mo-line, 158 111. 64. (4) Assessments for local improvements do not violate section 30, of article 2, of the Constitution of Missouri. Eyerman v. Blakesly, 78 Mo. 145. (5) It is conclusively settled by the decisions of this court and of the Supreme Court of the United States that special taxbills for local assessments do not violate the Fourteenth Amendment to the Federal Constitution. Paving Co. v. French, 158 Mo. 334; Meier v. St. Louis, 180 Mo. 391; French v. Paving Co., 181 U. S. 324; Shumate v. Heman, 181 U. S. 403; Tonawanda v. Lyon, 181 U. S. 389; Chadwick v. Kelly, 187 U. S. 540; Schaefer v. Werling, 188 U. S. 516; Railroad v. Paving Co., 197 U. S. 430; Davidson v. New Orleans, 96 U. S. 97; Railroad v. Pennsylvania, 134 U, S. 232; Bank v. Pennsylvania, 167 U. S. 461. (6) The charter of the city of St. Louis has all the force and effect of an act of the General Assembly. St. Louis v. Fisher, 16-7 Mo. 660; Meier v. St. Louis, 180 Mo'. 409; Construction Co. v. Sliovel Co., 211 Mo.' 533.
   WOODSON, J.-

This is a suit to collect fourteen special taxbills, duly issued by the city of St. Louis, in favor of the plaintiff and against the defendant, in payment of materials furnished and labor performed in the reconstruction of a street in said city, known as Broadway, cloné in pursuance to a contract made by and between it and the city, in conformity to the charter and ordinances thereof. The petition contained fourteen counts.

The property .of the plaintiff charged with said taxbills consists of its right of way, and is located within the area of the district defined by the ordinance under which .the work was done.

The taxbills remaining unpaid, after demand made, plaintiff brought suit on them in the circuit court of the city of St. Louis. The appellant answered, admitting its ownership of the property against which the taxbills were issued, but averring that none of the property described in the several counts of the petition abuts upon the street paved by plaintiff, but on the contrary, each of said described pieces of property is distant from Broadway and constitutes the defendants’ right of way and is occupied by its main tracks solely for the passage of trains thereover, and is not devoted to yard, loading or depot purposes or for any other purpose than the passage of trains there-over, and therefore can derive no possible benefit from the paving of Broadway, and hence cannot be chargeable with the cost of said paving or other improvement of said street; that to hold said property chargeable with the cost of said improvement would violate section 1, article 14, of the Constitution of the United States, in that it would deprive the defendant of its property without due process of law and deny to it the equal protection of the laws, and that it would also violate section 30, article II, of the Constitution of Missouri, in that it would deprive defendant of its property without due process of law; that defendant is a railway corporation and public carrier of passengers and freight for hire and holds said property for a public use and as a public highway.

The plaintiff filed its motion to strike out' the affirmative matter of the answer above set out, which motion was sustained.

Upon the trial of the -cause plaintiff offered the fourteen special taxbills in evidence, and the signature to the same by the president of the board of public improvements, and notice and demand upon each tax-bill being admitted, the plaintiff rested its case.

The defendant then offered to prove the facts stated in that part of its answer theretofore stricken out, which proof, the court, upon the plaintiff’s objection, refused to receive.

The defendant offered no further evidence, but requested the courts to give an instruction in the nature of a demurrer to the evidence, denying the plaintiff’s right to a recovery on any of the counts in the petition. That instruction was, by the court, refused and the defendant duly excepted.

The findings pf the court were for the plaintiff on all the counts of the petition, and judgment was rendered accordingly. After taking the proper preliminary steps, the defendant appealed the cause to this court.

Since it is practically conceded that the contract, under which the improvements were made, and in payment of which the taxbills in suit were duly issued, was authorized by the charter and ordinances of the city of St. Louis, there are but three legal propositions remaining for determination, and they are: First, is the right of way of a railroad company, under the charter of the city of St. Louis, subject to taxation for local improvements, the same as other lands abutting upon the street improved?

This precise question was presented to this Court in Banc, at the April term, 1907, in the case of Heman Construction Co. v. Wabash Railroad Company, 206 Mo. 172. After an exhaustive review of the authorities and a most able consideration of the question, it was there held that the right of way of a railroad company was liable for special assessments for local street improvements the same as those made in pursuance to the contract now under consideration. Nothing has since been said, nor have any additional authorities been cited on the presentation of this case, which would justify this court in overruling that case, or authorize the announcement of a rule different from the holding there expressed.

Second, Do the Constitution and laws of this State exempt the right of way of a railroad company from the assessment of special benefits? It was also held in the case before mentioned, that the right of way of a railroad company was not a public highway within the meaning of the Constitution of this State, exempting “public highways” from taxation. No valid reason has been suggested to this court which would justify us in departing from that holding. [Also, see City to use v. Eddy, 123 Mo. l. c. 559-563, and cases cited.]

The third question is, are the charter provisions and ordinances of the city of St. Louis, imposing such special benefits upon the right of way of the appellant, violative of either the State or Federal Constitution? It is no longer a debatable question in this State, but what finder the laws and ordinances of the city of St. Louis, the rights of way of railroad companies, as previously stated, may be assessed for special benefits received by local improvements, such as those provided for in the contract here involved. [Charter of St. Louis, art. 6, sec. 14; Heman Construction Co. v. Wabash Ry. Co., supra; Corrigan v. Kansas City, 211 Mo. l. c. 626, and 650; City to use v. Eddy, 123 Mo. l. c. 559-563; L. & N. R. R. Co. v. Barber Asphalt Co., 197 U. S. 430-4; Chicago & Alton R. R. Co. v. City of Joliet, 153 Ill. 649; Chicago, Rock Island & Pacific Ry. Co. v. City of Moline, 158 Ill. 64.] And it is equally well settled that such assessments do not violate either the State or Federal Constitution. [Naylor v. Harrisonville, 207 Mo. l. c. 353; Eyerman v. Blaksely, 78 Mo. 145; Barber Asphalt Paving Co. v. French, 158 Mo. 534; Meier v. St. Louis, 180 Mo. 391, 408-9; French v. Barber Asphalt Paving Co., 181 U. S. 324; Tonawanda v. Lyon, 181 U. S. 389; Chadwick v. Kelley, 187 U. S. 540; Shumate v. Heman, 181 U. S. 403; Schaefer v. Werling, 188 U. S. 516; L. & N. Railroad Co. v. Barber Asphalt Paving Co., 197 U. S. 430; Davidson v. New Orleans, 96 U. S. 97; Bell’s Gap Railroad Co. v. Pennsylvania, 134 U. S. 232; Merchant’s & Mfg. Bank v. Pennsylvania, 167 U. S. 461.]

We are therefore of the opinion, that the laws and ordinances of the city of St. Louis authorizing the assessment -of benefits for local improvements against the appellant’s right of way do no violence to either the State or Federal Constitution.

The judgment should be affirmed, and it. is so ordered.

All concur, except Lamm, Graves and Ferriss, JJwho dissent.

DISSENTING OPINION.

GRAVES, J.-

This case furnishes me an opportunity to place myself right in my own mind without changing the heretofore written law. When the case of Heman Construction Company v. Wabash Railroad Company, 206 Mo. 172, was before this court, I voted to sustain the lien of a special taxbill as against, a railroad right, of way. I have never been fully reconciled to that vote. Upon reflection thereafter, I became convinced that my brothers Pox and Lamm were right in their dissent, and so feel at this time.

In the Wabash case we used this language: “As to the proposition urged against this lien, that the i-oadbed or right of way of the defendant, or a part thereof, could not be sold under .execution to satisfy any judgment which may be rendered in favor of plaintiff: in this case, it is not necessary for us to express an opinion at this time. What we do hold is that, -under the charter and ordinance, the taxbill sued on in this case is a -lien ag’ainst that part of the right of way of the defendant company described in the tax-bill, We do not feel, called upon to determine how such judgment can be enforced, but it is probable that counsel will be able, if necessary, to accomplish such' result. ’ ’

If it be a fact that there is no way of enforcing a lien, it is persuasive to my mind that no lien could or should be decreed. Why say a lien does exist, and yet say that it cannot be enforced by process from a court. We have held that segments of a railroad’s right of way cannot be sold under special execution enforcing a lien.

In Knapp v. Railroad, 74 Mo. l. c. 378, we said: “It has been several times declared by this court to be against public policy to permit detached portions of a railroad to be sold under an ordinary execution, or under a judgment enforcing a mechanic’s lien. [Dunn v. N. Mo. R. R. Co., 24 Mo. 493; McPheeters v. Merimac Bridge Co., 28 Mo. 467; Schulenburg v. C. & N. Ry. Co., 67 Mo. 442.] In the case of the St. Louis Bridge & Construction Co. v. Memphis, C. & N. W. Ry. Co., 72 Mo. 664, the question now before us was not discussed, but it was taken for granted that the lien extended to the whole of the road lying within this State, and so stated- In Schulenburg v. M. C. & N. W. Ry. Co., supra, the act now under consideration was reverted to, but- not construed, as the lien sought to be enforced in that case was based upon the general law in relation to mechanic’s liens; but the views of this court previously expressed against the policy of permitting a railroad to be sold out in detached parcels, were distinctly reasserted.”

In Ireland v. Railroad, 79 Mo. l. c. 573, we announce the same doctrine thus: “It is intimated in the brief of appellants that the demurrer was sustained on account of the supposed impossibility of enforcing such liens against a railroad whose roadbed was not wholly within the State. This objection has been disposed’ of in the case of the St. Louis Bridge & Construction Co. v. M. C. & N. W. R. R. Co., 72 Mo. 664, in which it was held that a lien could be adjudged and enforced against such part of the roadbed as lay within the State. It has also been decided that no lien under this law can be adjudged or enforced against only a part of the roadbed lying within the State. The lien must be adjudged against the whole of the roadbed, or against none of it, within the State. [Knapp v. St. Louis, K. C. & N. Ry. Co., 74 Mo. 374; Cranston v. Union Trust Co., 75 Mo. 29.] ”

Other cases are cited in the quotation first above given.

Liens of the character sought to be enforced in this case must be as against the property benefited by the improvement, and hence only against a small segment of the right of way. If public policy forbids a part or a segment of á right of way being sold as indicated by these cases, then there is no means by which our judgment can be enforced, because no personal liability attaches in such cases. My reflection upon these cases and the reasons given therein have shaken my confidence in the judgment given by this court in the Wabash case, supra, and I now desire to dissent from that doctrine and hence dissent in this case.

Lamm and Ferriss, JJconcur in these views.