author: FOX, J.

text:
    THE STATE ex rel. PROCTOR et al. v. WALKER et al.
    In Banc,
    February 26, 1906.
    1. MUNICIPAL INDEBTEDNESS: Refunding Debt: Extension Beyond Twenty Years: Statute: Schooi District.. A school district is not prohibited by the constitutional section requiring that provision he made, at the time of the creation of a debt, for an annual tax sufficient to pay the interest as it falls due and “to constitute a sinking fund for payment of the principal thereof within twenty years from the time of contracting the same,” from funding its debt when it comes due by issuing new bonds for the same amount to run twenty years. And section 5157, Revised Statutes 1899, as amended by Laws 1901, page 52, authorizing counties, cities and school districts, to fund their debts by issuing new bonds to run not less than five nor more than twenty years, is not unconstitutional, even though the time since the old bonds were authorized, when coupled with the life of the new bonds, would make the new bonds fall due more than twenty years after the debt was first created.
    2. ■: -: -: -: -: Case Stated. A school district legally issued ten-year bonds for building a schoolhouse, and the debt not being paid at the end of the ten-year period, the school board issued new bonds of the same amount at a reduced rate of interest to run for twenty years, the proceeds to be used in taking up and paying off the old bonds. Held, first, that the debt was still a binding and subsisting debt of the district, and could be enforced against it by the creditor or an individual, and the constitutional provision which required the board to levy an annual tax to provide a sinking fund for its payment within twenty years was self-enforcing; second, the statute authorizing the board to fund the debt by issuing the renewal twenty-year bonds is not violative of that constitutional provision, but simply provides a new remedy for paying the debt in the least burdensome way.
    3. -: -: Constitutionality: Presumption. The presumption is in favor of the constitutionality of a statute which seems to be a mature legislative evolution, and before the court would be warranted in holding it unconstitutional its invalidity in that regard should appear beyond a reasonable doubt.

      Mandamus.
    Peremptory writ awarded.

      Dysart & Mitchell for relators.
    (1) The statute makes direct provision for refunding such bonds as these. Sec. 5157, R. S. 1899, as amended by laws 1901, p. 52. Such statute authorizes refunding bonds. 1 Abbott on Municipal Corporations, secs. 172, 173; Tiedeman on Municipal Corporations, sec. 197; Simonton on Municipal Bonds, secs. 59, 126, 128; 2 Beach on Public Corporations, secs. 928, 929; City of Huron v. Bank, 49 L. R. A. 534; 2 Smith on Modern Law Mun. Corp., sec. 993. The refunding bonds neither create nor increase the debt. They only change the form of the debt to the advantage of the district. Board of Com. v. Bank, 108 Fed. 505; Galena v. Corwith, 48 111. 423. (2) This section, 5157 Revised Statutes 1899, amended, Laws 1901, p. 52, is not in conflict with either the letter, object or spirit of section 12, article 10 of the Constitution of Missouri. That provision of the Constitution was copied, almost word for word, from the Constitution (1870) of the State of Illinois, and the Supreme Court of that State has passed upon and construed this provision of that Constitution in a case like the one here before the court, Constitution, sec. 12, art. 10; Constitution of Illinois, I Starr and Curtis Statutes, chap. 24, par. 63, clause 5; Kane v. City of Charleston, 161 111. 179; 2 Debates of the Constitutional Convention, State of Illinois, 1870, pp. 1256-1260. (3) The right of municipalities, counties, cities, school districts, etc., to refund their bonds and extend the payment thereof, under lower interest rates, to a time more than twenty years beyond the date of the original issue has for many years, under our present Constitution, been fully recognized by the legal profession. Many corporations, through their officers, have given this long continued and unquestioned interpretation to this statute and Constitution, and so also the registering officers of the State. This all lends strong force to its correcteness. State v. Etchman, 189 Mo. 648. (4) Where the required statutory and constitutional provisions was made, at the time of the issue for payment of interest and principal on the bonds as same came due, the same will not be rendered void or become worthless by neglect by the officials of the municipality to do their duty. 1 Abbott Municipal Corporations, sec. 223; Wade v. Travis County, 174 U. S.v 499; Marion County v. Coler, 67 Fed. 70. It was the duty of- the school district, when the original bonds were issued, to provide for a tax to pay the interest and principal as it fell due. It is alleged and admitted that this was done. Constitution, art. 10, sec. 12; State ex rel. v. Allen, 183 Mo. 283; Evans v. McFarland, 186 Mo. 726. The fact that the revenue officers failed to extend the levy and- collect the tax for the sinking fund did not invalidate the bonds or pay the debt. (5) Statutes should not be held unconstitutional where any other reasonable construction can be given them, and they will not be declared void as in violation of the Constitution except where the violation is clear and plain. Before this court would be warranted in holding it invalid because in conflict with the Constitution, it should be satisfied of its invalidity beyond a reasonable doubt. .State v. Etchman, 189 Mo. 62; State v. Layton, 160 Mo. 498; State v. Harney, 168 Mo. 167; State v. Tower, 185 Mo. 94; Cooley on Const. Lim. p. 216; Sams v. Railroad,.174 Mo. 96; Kane v. City of Charleston, 161 111. 169.
    - Thomas N. Dysart for'respondents.
    (1) The Constitution is supreme. A law cannot be in force in this State no matter when passed nor of how long standing which contravenes the provisions of the Constitution. Bailey v. Gentry, 1 Mo. 164; State ex re-1, v. Maynard, 14 111. 419. (2) The provisions of the Constitution must be construed to mean exactly what they say, and where the words employed when taken in their ordinary sense and in their grammatical arrangement, embody a definite meaning, the meaning thus apparent on its face must be adopted. State v. King, 44 Mo. 285; Gibbons v. Ogden, 9 Wheat. (U. S.) 188; People v. Railroad, 24 N. Y. 487; Hills v. Chicago, 60 111. 86; State ex rel. v. District Board, 7 L. R. A. 337; Stnrges v. Crowninshield, 4 Wheat. (U. S.), 122. And when the language of the Constitution is plain it is not within the province of the court to speculate as to the purpose of the framers. State v. Irwin, 5 Nev. Ill; Carrol v. State, 58 Ala. 396; Hills v. Chicago, 60 111. 86; Sturges v. Crowninshield, 4 Wheat. (U. S.) 122; Purdy v. People, 4 Hill (N. Y.) 384. Nor can surrounding circumstances and conditions, nor the history of the instrument itself, nor of .any similar instrument, be considered in construing it. Test Oath Cases, 41 Mo. 373; Hamilton v. St. Louis County Court, 15 Mo. 23; Forsythe v. Hammond, 68 Fed. 774; People v. Fisher, 24 Wend. (N. Y.) 220; Walker v. Cincinnati, 21 Ohio St. 14; Whallon v. Ingham, 51 Mich. 503. Nor can wisdom, expediency, or justice of the provision be considered in construing the same. Cooley’s Constitutional Limitations (6 Ed.), p. 87; Newell v. People, 7 N. Y. 97. Nor can the fact that the provision may work great inconvenience be considered when the intent is evident. Settle v. Van Evrea, 49 N. Y. 280; Greencastle v. Black, 5 Ind. 571; Newell v. People, 7 N. Y. 97. Nor can the courts give a strained construction 'or astute interpretation to a constitutional provision simply in order to relieve against hardship. Law v. People ex rel., 87 111. 392 (3) The courts should not so construe a section of the Constitution as to invite an evasion of its provisions. Our Constitution provides that a sinking fund must be construed to pay the debt in twenty years. This mandate is self-enforcing. State ex rel. v. Allen, 183 Mo. 283; Evans v. McEarland, 186 Mo. 727; East St. Lonis v. Amy, 120 IT. S. 600. And if obeyed there can be no possible reason for a refunding bond or any further extension or continuation of the debt, because the money will be on hand to meet the obligation at its maturity. (4) There is nothing in the Constitution contemplating a renewal or extension of the debt at the expiration of the twenty years, and such authority can not be implied merely from the power originally conferred to create the debt. 1 Abbott on Municipal Corporations, p. 388; Coquard v. Village of Oquawka, 192 111. 366; Merrill v. Town .of Monticello, 138 U. S. 673; Coffin v. City of Indianapolis, 59 Fed. 221. The refunding bond merely provides an extension of the old debt; the form is changed but not the substance. 2 Beach on Public Corporations, secs. 928 and 929; 15 Am. and Eng. Ency. Law (lEd.), 1263 and 1264; Powell v. City of Madison, 107 Ind. 114. (5) The policy of a constitution containing a provision of this nature is against incurring debts except where it is absolutely necessary, and in such cases the debt should be discharged at its maturity. Mayor v. Jones, 122 Ga. 455; Epping v. Columbus, 117 Ga. 281; City of Dawson v. Water Works Co., 106, Ga. 706. (6) It is plainly against public policy to allow a school district or other political subdivision to continue its obligations indefinitely. Epping v. City of Columbus, supra; City of Dawson v. Water Works Co-., supra. If this were permitted then the school district could create a perpetual debt. Furthermore, they could borrow money to the full extent of the limit of five per cent imposed by the Constitution, and by continually refunding the debt at its maturity could prevent any further improvements in the district. (7) A strict interpretation of the constitutional provision would work no more of hardship on the present generation than would the authority to continue the debt beyond twenty years work a hardship on the next generation. The taxpayer of to-day should not be allowed to shoulder his debts on the taxpayer of to-morrow. (8) The fact that the refunding bond is void does not leave the bondholder without remedy. He can compel a levy sufficient to pay the indebtedness. Evans v. McFarland, 186 Mo. 727; East St. Louis v. People, 124 111. 655; East St. Louis v. Amy, 120 U. S. 600; Law v. People, 87 111. 385; Mayor v. Jones, 122 Ga. 455; Epping v. City of Columbus, 117 Gá. 263. In the case at bar the outstanding bonds have six years yet to run, and the levy could be spread over this time without any great injury to the district.
   FOX, J.

— This is an original proceeding in this court in which the relators ask the court to issue its writ of mandamus commanding and requiring respondents to sign and execute certain refunding bonds as ordered by the school board of the school district of the city of Monroe in the State of Missouri. The facts upon which relators predicate their right to the writ sought in this proceeding are thus stated in the petition :

“Now at this day come relators and leave of court first being had, file their first amended petition and respectfully represent and show to the court that they, along with the respondent R. W. Walker, herein, are the duly elected, qualified and acting members of the school board of the school district of the city of Monroe in the State of Missouri, and that they have been such for many months last past; that the other respondent, Thomas J. Sharp, is the duly appointed, qualified and acting clerk of said school board of the said school district of the city of Monroe, Missouri.

“The relators further state that on July 1, 1892, the said school district, being duly authorized thereto by a vote of more than two-thirds of the qualified voters of the said district, issued bonds of the said district in the amount of $10,000 in the aggregate, bearing-date of July 1, 1892, bearing interest at five per cent per annum, payable semiannually, said bonds and all of them being due and payable July 1, 1912, with an option to pay the same or any part thereof at any interest paying date after ten years from the issue thereof; that the said school district through its said board, on July 15, 1892, being duly authorized thereto by a vote of more than two-thirds of the qualified voters of said district, issued the bonds of the said district to the amount of $5,000, which said bonds bore date of July 15, 1892, and interest at the rate of five per cent per annum, payable semiannually; said bonds were due and payable July 15, 1912, with an option to pay same on any interest paying date after five years from the issue thereof; that on the 2nd day of May, 1893, the said school board of the said district, being duly authorized thereto by a vote of more than two-thirds of the qualified voters of the said district, issued the bonds of the, said district in the amount of $3,000, which said bonds bore interest at the rate of seven per cent per annum, and were payable in five years with the option to pay the same at any time; that at the time each of said issue of bonds was made and ordered, provision was made of record by said district for the collection of an annual tax sufficient to pay the interest on such indebtedness as the same fell due, and to constitute a sinking fund for the payment of the principal thereof within the time same was contracted to be paid; that by failure or inadvertence of the officers the said tax has not been levied and collected to provide for the sinking fund; that it would now be burdensome and oppressive on the taxpayers of said district to pay the interest on said debt and provide for and pay the principal when the same falls due under the original issue of bonds.

‘ ‘ That the said three issues of bonds amount in the aggregate to $18,000, and constitute the only debt of said district and do not now, and never did since their-issue, exceed five per centum on the value of the taxable property of said district, and were each and all issued for the purpose of erecting school buildings and furnishing the same in said school district and for no other purpose, and the proceeds of said bonds were in fact used for said purpose and said bonds are each and all valid, binding and subsisting obligations on the said district, and there'is now in the treasury no money to pay the principal of the said bonds or to form a sinking fund to pay the same at the time of their maturity; that the present school board constituted as above set forth under and by authority of section 5157, Revised Statutes 1899, as amended in the act of 1901, page 52, with the respondent, R. W. Walker, concurring and voting therefor, on November 15, 1905, duly passed and placed of record an order at á regularly called meeting of the said board, at which meeting of the board all the members thereof were present, to refund all said issues of bonds amounting to $18,000', and to issue refunding bonds therefor, to bear date December 1, 1905, and to bear interest at a lower rate, to-wit, at the rate of four per cent per annum, payable semiannually, which said refunding bonds were made payable twenty years after the date thereof, and at the same time said board, by an order of record, made provision for the collection of an annual tax sufficient to pay the interest on said refunding bonds as the same fell due and to constitute a sinking fund for the payment of the principal thereof within the time the same was contracted to be paid; that the said board negotiated and contracted to sell, and did sell, the whole of the said issue of the said refunding bonds of $18,000; that the said bonds were of the denomination of $500 each, payable to bearer, and were negotiated and sold for not less than their par value; that the said bonds were ordered to be prepared, and the same were ordered to be signed and issued for delivery by said respondents, R. W. Walker, as president of the school board, and by Thomas J. Sharp, as the clerk of the said board; that on the 1st day of November, 1905, under section 5166, Revised Statutes 1899, the said board ordered that notice be filed with the State Auditor, that said issues of $10,000, $5,000 and $3,000 as above set forth were called for redemption; that said notice was filed with the State Auditor on the 5th day of November, 1905; that the eaid issue of $10,000 bonds was called for payment on January 1,1906; that said issue of bonds for $5,000 was called for payment on the 15th day of January, 1906; that the said issue of bonds of $3,000 was called for payment on the 1st day of January, 1906; that the said board further caused a notice of said call of the said bonds for payment to be duly published in the Globe-Democrat, a newspaper of large circulation, published in the city of St. Louis, Missouri; that the money and funds to meet and pay for said bonds aggregating $18,000, so issued as aforesaid and called for payment as aforesaid, was to be procured from the issue and sale of the said refunding bonds for $18,000, ordered as aforesaid, on the 5th day of November, 1905; that said refunding of said debt and bonds would lighten the burdens of the taxpayers of said district and would better the financial situation of said district.

“These relators further state that said refunding bonds have been prepared and presented to the said respondents to be signed and executed by them, and the law requires that said bonds be signed and executed by them as the officers of the said board of the said school district, and that the respondents have been requested to sign and execute the said bonds as ordered by the said board, but they have failed and refused, and still fail and refuse to sign and execute the same as ordered by the said board; and these relators say that they and the said school district have no means with which to meet and pay the said bonds heretofore issued by the said district and called as aforesaid for payment, and that they are without remedy in the premises by or through, ordinary process or proceedings at law; that by reason of the premises the matters herein are of far more than ordinary magnitude and importance to a great number of people, and any delay therein, such as bringing this proceeding in the circuit court at the first instance, would work an irreparable injury to the said .district and to the inhabitants thereof, and these relators therefore pray this court to award against the said respondents an order of mandamus commanding and requiring them to sign and execute said refunding bonds as ordered by the school board of the said district, and for such other process, orders and remedies as may to the court seem to be meet and just.”

To this petition respondents filed their return and answer, which is as follows:

“Come now the respondents in the above-entitled cause and waive an alternative writ or any service herein, and for answer to the petition in said above-entitled cause, state that they admit each and every allegation therein contained.
“Respondents further answering, admit that the said R. W. Walker voted to refund the outstanding bonds mentioned in relato x*s’ petition.
“Respondents further answering, state that the proposed refunding bonds were to be issued by the school board of said school district, under authority of section 5157, Revised Statutes 1899, as amended by the Laws of 1901, p. 52.
“Respondents further state that they have been advised by legal counsel, and they verily believe, that said refunding bonds, if issued, would be void, because the. said section 5157, Revised Statutes 1899, as amended by Laws of 1901, page 52, and under which, said bonds are issued, is in direct conflict with section 12 of article 10 of the Constitution of Missouri, and therefore invalid.
“Respondents further answering, state that section 12 of article 10 of the Const! tixtion of Missouri clearly prohibits the said school board to suffer the debt evidenced by said present outstanding bonds to remain unpaid for a period of more than twenty years from the date of incurring said debt, and that said present outstanding bonds have already run for a period of more than twelve years, and the said refunding bonds about to be issued do but evidence a renewal of said original debt for a further term of twenty years, making said debt run more than twenty years from the date of incurring it, and that said proposed refunding bonds are therefore prohibited and void.
“Respondents further answering, state that said proposed refunding bonds are void, because section 12 of article 10 of the Constitution of Missouri prescribed that said school board should provide for the collection of an annual tax sufficient to constitute a sinking fund for the payment of the principal of said debt within twenty years from the time of contracting the same.' And if said constitutional provision has been complied with there should now be on hand a sinking fund sufficient to pay more than one-half of said bonds, and at the maturity of said bonds there should be on hand a sinking fund sufficient to retire the whole indebtedness, and hence there could be no reason for said proposed refunding bonds.
“Respondents further answering, state that no authority could be granted by section 5.157, Revised Statutes 1899, as amended by the Laws of 1901, page 52, to the said school board to issue said refunding bonds, because said section 5157 is unconstitutional as above set out.
“Respondents further answering state that they are advised, and that they verily believe, and for the reasons herein mentioned, they will render themselves personally liable in the event they sign and execute said proposed refunding bonds.
“Respondents further answering admit that the matters set forth in said petition are of far more than ordinary magnitude and importance, and that any delay herein would work an irreparable injury to said school district, provided the said proposed refunding bonds would be a valid and subsisting legal obligation, but that the respondents believing said proposed refunding bonds to be void for the reasons herein set forth, join with relators in asking an early adjudication of the matter by this court.
“Defendants having fully answered, therefore pray this court that the writ of mandamus asked for in this cause be denied, and that the petition of the relators be dismissed.”

To this answer relators filed their reply, in the nature of a motion for judgment upon the pleadings, which was as follows:

“Now at this day come the relators and move the court to order a writ of mandamus prayed for by relators upon the allegations in the return and answer of respondents filed in this cause, because the same gives no good and sufficient and legal reason why the said writ ought not to issue, but shows on the face thereof the allegations of relators’ petition are true, and said writ ought to issue.’”

This constitutes the record in this cause, and it is now before us for consideration.

OPINION.

It is apparent that this record presents but one question for solution, that is, the validity of section 5157, Revised Statutes 1899, as amended by Laws 1901, page 52, which substantially provides that municipalities, counties, cities and school districts shall have the right to refund these bonds and extend the time of payment thereof, under a lower rate of interest. There is no dispute about the essential and necessary preliminary steps leading up to the issuance of the original bonds, evidencing the indebtedness of the school district, nor as to the regularity of the proceedings which authorize the issuance of the refunding bonds in pursuance of the provisions of section 5157, supra. It is admitted by the return of respondents that the petition correctly states all the facts upon which the authority to issue the original bonds, as well as the refunding bonds, sought to be issued are predicated — hence the sole question presented to this court for consideration is, whether or not the action of the school board in ordering the issuance of the refunding bonds in pursuance of section 5157, was and is violative of and in contravention to section 12 of article 10 of the Constitution of this State. In other words, is section 5157 a valid subsisting law and was the school board, upon the facts alleged in the petition, authorized, in pursuance of the provisions of such law, to order the refunding bonds which are in controversy in this proceeding?

Section 5157, so far as it is applicable to the question in controversy in this proceeding, provides that “the various counties in this State for themselves, as well as in behalf of any township or parts of townships for which said counties may have heretofore issued any bonds, and the several cities, villages, incorporated towns and school districts are hereby authorized by their respective county courts, and said cities, villages and incorporated towns by their proper authorities, and the said school districts by their respective school boards, to refund any part or all of their bonded or judgment indebtedness, including bonds, coupons, or any judgment whether based on bonded or other indebtedness at a lower rate of interest, and for that purpose may make, issue, negotiate, sell and deliver renewal or refunding bonds and with the proceeds thereof pay off, redeem and cancel such judgments, or old-bonds as the same are called'for redemption: Provided, that said funding bonds shall not be sold for less than par value thereof, and that in no case shall the amount of the debt of any such county, township, or parts of townships, or city, village, incorporated town or school district, nor the rate of interest on such debt, be increased or enlarged under the provisions of this chapter; and provided, also, that no funding bonds issued under this, chapter shall be payable in less than five nor more than thirty years from date thereof, and that such funding bonds shall be in the denomination of not more than one thousand dollars nor less than one hundred dollars, and shall bear interest not to exceed five per cent per annum, payable annually or semiannually, and to this end each bond shall have annexed interest coupons, and the funding bonds and coupons shall be made payable to bearer: Provided, further, that nothing in this act shall be so construed as prohibiting any county, city, township or school district, that now has or may hereafter have a bonded or judgment debt (except as hereinafter provided) from funding or refunding such debt without the submission of the question to a popular vote whenever such funding or refunding can be done at a lower rate of interest than the debts so funded or refunded bore.”

It is insisted by respondents that the act as above indicated is violative of and in contravention of the provisions of section 12 of article 10 of the Constitution of this State. This constitutional provision provides that “no county, city, town, township, school district or other political corporation or subdivision of the State, shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose; norm cases requiring such assent shall any indebtedness be allowed to be incurred to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the assessment next before the last assessment for State and county purposes, previous to the incurring of such indebtedness:’ Provided, that with such assent any county may be allowed to become indebted to a larger amount for the erection of a court hous'e or jail; and provided further, that any county, city, town, township, school district, or other political corporation or subdivision of the State, incurring any indebtedness, requiring the assent of the voters as aforesaid, shall, before or at the time of doing so-, provide for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for payment of the principal thereof, within twenty years from the time of contracting the same.”

It is made manifest from the terms- employed in this provision of the Constitution that the dominating-thought in the minds of the framers of that instrument was to surround certain municipalities and other subdivisions of the State with constitutional restrictions upon the subject of incurring indebtedness. It is equally clear that it never entered the minds of the framers of the organic law of this State, by the language used in section 12 of article 10 of the Constitution, that after a debt had been incurred in strict compliance with the terms of the Constitution, the General Assembly should be prohibited from enacting appropriate measures -to meet the conditions confronting corporate bodies which had incurred such indebtedness, providing for the extension and settlement of such indebtedness along lines not prohibited by any provision of the Constitution, and which, in view of the conditions surrounding the municipality, would be less burdensome to the taxpayers. This constitutional provision, which was leveled at the creation of debts by municipalities more than at the time within which such debts should be paid, when it undertakes to limit the amount of indebtedness, uses no uncertain terms in doing so; but it expressly prohibits the incurring of a liability exceeding a certain per cent of the taxable property embraced in the territory of the municipality. Then follows the command of the Constitution that provision be made for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due and also to constitute a sinking fund for the payment of the principal thereof within twenty years from the time of contracting the same. Now, while these commands of the Constitution are self-enforcing, it is conceded that the failure to comply with them in no wise invalidates the debt, and the creditor or any taxpayer of the municipality may, by appropriate proceeding, compel the compliance with such constitutional provisions. It is significant, however, that the framers of the Constitution (who were doubtless close observers of human conduct and actions, as well as the many frailties of the human family), must have known that conditions would at sometime arise by reason of the carelessness or neglect of duty of officials or otherwise, in which this sinking fund would not be provided for as commanded by the Constitution, which conditions would necessarily demand some extension of the time of payment of such indebtedness; yet they failed to give any expression in the provisions of that instrument prohibiting an extension of the time of payment or appropriate legislation to meet such conditions, providing for the payment of such indebtedness along lines in harmony with careful and prudent business methods. While it may be said that the Constitution by its terms contemplated that the tax suggested would be levied and collected, and the sinking fund provided to meet such indebtedness when it became due; yet a failure to make such provisions, as commanded by the Constitution, as heretofore stated, in no way invalidated the debt; it is a valid subsisting indebtedness incurred in compliance with the Constitution, and such provision of the Constitution should not, if susceptible of any other reasonable interpretation, be construed as an inhibition upon the lawmaking power to provide for an extension of time of the payment and refunding’ of such indebtedness upon terms satisfactory to the creditor and debtor, provided, of course, that the debt shall not be increased.

We repeat, that, if the bondholder or any taxpayer should insist upon a compliance with the provisions of the Constitution in respect to levying and collecting the tax to meet the indebtedness, there is an appropriate remedy for compelling such compliance; but we are unwilling to say, the debt being in existence, that the terms of the Constitution furnish an absolute barrier to the enactment of appropriate legislation which permits the creditor and debtor to adjust such indebtedness along lines to meet existing conditions and less burdensome to the taxpayers. At least we are of the opinion that if such inhibition upon the lawmaking power was intended by the framers of that instrument, such intention would have at least been manifested or indicated by reasonably clear and definite terms employed in the instrument.

While we do not mean to be understood as saying that the question of the power of the Legislature to enact section 5157, providing for the refunding of indebtedness of the character indicated in this proceeding, is absolutely without doubt, yet we do mean to say that in the absence in terms of any prohibition of extension of time of payment or of legislation of that character, and in view of the many conditions which might arise concerning the indebtedness permitted by the Constitution, and recognizing the Constitution as an instrument of a practical nature, founded upon the common business of life, it is extremely doubtful if any inhibition in respect to extension of time of payment or refunding the indebtedness, was contemplated by the provisions of the Constitution.

No one can apply that practical and common sense rule of interpretation of constitutional provisions as announced by that eminent and distinguished jurist and author, Mr. Story, in his treatise upon the Constitution, without being led to the entertainment of the doubt heretofore expressed as to whether or not any inhibition upon the character of legislation assailed in this proceeding was contemplated by section 12 of article 10 of our Constitution. The rule was thus announced by Mr. Story: “Every word employed in the Constitution is to be expounded in its plain, obvious and commonsense meaning, unless the context furnishes some ground to control, qualify or enlarge it. Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them, with the help of common sense, and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss.” [1 Story, Const. (5 Ed.), sec. 451.]

While legislation of the character involved in this proceeding, providing for the refunding of existing indebtedness and issuing renewal bonds, has been upon the statute books of this State for a number of years, yet the precise question, so ably presented by counsel for respondents, involved in this proceeding, has never been in judgment before this court. The Supreme Court of Illinois, however, in Kane v. City of Charleston, 161 Ill. 179, has decided this precise controversy under a constitutional provision nearly identical with ours. In that case, as in the one at bar, the contention was urged that section 12 of article 9, Constitution of Illinois, 1870, put a limit upon the duration of all municipal indebtedness, that every municipal debt created since 1870 must be paid within twenty years, and that bonds issued for the purpose of refunding such indebtedness are but an evasion of the Constitution and therefore void. The response of Mr. Justice Wilkin to the contentions in that case is so appropriate and applicable to the proposition before us in this proceeding that the length of the quotation from such response will, we trust, be pardoned. He said:

“It is not pretended that a municipal indebtedness, otherwise legally incurred, ceases to be valid and binding against the municipality upon the expiration of' twenty years from the date of its being contracted. On the contrary, it is conceded that the obligation of the city to pay the $20,000 outstanding bonds still exists, and that it can be compelled to pay the same in full, notwithstanding more than twenty years have intervened since their issue. Conceding this to be true, it must also be admitted that if the holders of those bonds should take no steps to compel their payment, and the city should not voluntarily, by some means, liquidate the same, they would continue to be binding; obligations upon the municipality, and it could be compelled to pay them at any time within the statutory period of limitation. It cannot, therefore, be said that the Constitution ‘puts a limit upon the duration of all municipal indebtedness,’ or that it requires absolutely all such indebtedness to be paid within twenty years.
‘ ‘ The real question in the case is, can the city council, when its power to do so is questioned by a taxpayer, issue its bonds in place of, or to supply means to meet maturing bonds, or for the consolidation or funding of the same, thereby consenting to an extension of the original indebtedness beyond the period of twenty years ? In other words, is clause 6, section 63, of the statute above quoted, void under section 12, article 9, of the Constitution? That that clause of the statute is broad enough in its terms to authorize, and does expressly authorize, the issuing of bonds like those here in question, cannot be, and is not, denied. Does the language of the Constitution, which requires the municipal authorities to provide for the collection of a tax sufficient to pay the interest on bonds issued, ‘ and also to pay and discharge the principal thereof within twenty years from the time of contracting the same,’ amount to a limitation upon the power of the Legislature to empower such authorities to refund the indebtedness by issuing other bonds at the expiration of the first period? There is no ground for claiming that this language of the Constitution is an express limitation upon such power of the Legislature, and if held to be such at all, it can only be done by construction or implication. That the language is not mandatory to the extent of affecting the validity of the indebtedness is clear from what we have already said, — that is to say, the mere fact that municipal authorities may fail to levy and collect a sufficient tax to pay the interest and principal within twenty years does not affect the validity or binding force of the indebtedness. By this we do not mean that municipal bonds issued without an attempt to make such provision would necessarily be valid. That question is not involved in this case, because the bill expressly states that the original bonds were issued in strict conformity with the provisions of this section of the Constitution. It is a well-known fact, that however honestly, or even wisely, public officers may attempt to provide, by taxation, a sufficient fund to meet an indebtedness maturing twenty years in the future, that effect will often fail because taxes levied can not always be collected, and because what may seem to be a sufficient levy at the time it is made, may, on account of changes in the valuation of assessable property, prove insufficient. And so we held in City of East St. Louis v. People ex rel., 124 Ill. 655 (following the decision of the Supreme Court of the United States in East St. Louis v. Amy, 120 U. S. 600), that if, at the end of twenty years, the provision first made proves insufficient to pay the whole indebtedness, the municipal authorities can be compelled to levy a sufficient tax upon the taxable property within its jurisdiction to pay a judgment recovered for any part of the indebtedness remaining unpaid.
“It being the duty of the city authorities to provide for the payment of this indebtedness, and being given authority to do so by clause 6, section 63, supra, is there any sufficient reason for holding, by construe-, tion or implication, that the Constitution renders that statute void? We think not. The Constitution does not say that the indebtedness must be paid within twenty years. It does not say that if, from any unforeseen circumstances, the debt, or a part of it, remains due at the expiration of twenty years, without a sufficient fund on hand to pay it, the city council may not provide for an extension of the debt. The principle is elementary, and has been' applied in cases almost without number by this court, that statutes should not be held unconstitutional where any reasonable construction can be given them which will avoid that result, and that they will not be declared void, as in violation of the Constitution, except where the violation is clear and plain. ’ ’
It will be observed by an examination of that case that it was argued, as it is here, that it was the object of the people in adopting the latter clause of section 12 of article 9 of the Constitution of Illinois, which is the same as section 12 of article 10 of the Constitution of this State, to indicate a policy of the State that municipal indebtedness should not be created to extend beyond a period of twenty years. The learned judge in that case, responding to such contention, said: “We are not disposed to dissent from that view. On the contrary, we think an intention that such a limit should be placed upon such indebtedness is sufficiently manifested by the language of the Constitution itself. Nor are we disposed to call in question the wisdom of such provision. Evidently it is the duty, under this Constitution, of every city council, when it contracts a municipal indebtedness, to faithfully and honestly provide for the levy of the tax sufficient to pay it within twenty years. Failing to do so, it could doubtless be compelled to perform that duty. But the question here is, when the attempted discharge of that duty has failed to accomplish its object, what is the remedy? Does the public policy which should have been carried out but was not, take away from the city council the power given it by the Legislature, as provided in paragraph 6, supra? It is also a matter of public interest that oppressive taxation should, as far as possible, be avoided, and if, in the judgment of the city council, the emergency which has here arisen can be met with less inconvenience and with less oppression by issuing bonds bearing the lower rate of interest, to mature in the future, than by levying a tax to be collected in a single year, we see no reason why, from the standpoint of public policy, it might not be allowed to do so. It was said in City of Quincy v. Warfield, 25 Ill. 317: ‘It is true, the provisions of the charter authorizing the issuing of bonds do contemplate that the city council will provide, by taxation, for their payment when due, . . . and establish a sinking fund for that purpose, and doubtless that is the true policy.’ Nevertheless, it was held in that case that the failure to perform that duty did not deprive the city council of the power to issue a new bond in payment of the old, if not prepared to pay it at maturity. ’ ’

Legislation substantially in form as that assailed in this proceeding his been in existence in this State for nearly a quarter of a century, and it is but common knowledge that municipalities and other subdivisions of the State have availed themselves of its provisions and put them into practical operation. Its validity has' been fully recognized by the people, the legal profession and all officials of this State who were required to perform any duty under the provisions of such legislation; hence it is important that we be not unmindful of the repeated admonition to courts, when they are called upon to pronounce the invalidity of the acts of the Legislature, passed with all the forms and ceremonies required to give it force, that they approach the question with great caution. The presumption is in favor of the constitutionality of this act, and before this court would be warranted on holding it invalid, because in conflict with the Constitution, it should be satisfied of its invalidity beyond a reasonable doubt. [Ewing v. Hoblitzelle, 85 Mo. 64; Lynch v. Murphy, 119 Mo. 163; State v. Addington, 77 Mo. 110; State ex rel. v. Railroad, 48 Mo. 470.]

We have thus indicated our views upon the proposition involved in this proceeding. The respondents, by their return, challenge the constitutionality of section 5157, Revised Statutes, as amended by the Laws of 1901; hence the burden is upon them to show that said section is plainly and clearly in violation of the provisions of the Constitution; having failed to do so and it appearing that all the provisions of law in respect to refunding the bonds heretofore issued, as well as those sought to be issued, in renewal of them, have been complied with, it is therefore ordered that the peremptory writ of mandamus be awarded as prayed for in the petition.

All concur.


source: Caselaw Access Project

author: MARSHALL, J.

license: Public Domain

text:
    SMITH v. FORRESTER-NACE BOX COMPANY, Appellant.
    In Banc,
    February 26, 1906.
    1. NEGLIGENCE: Proximate Cause: New Issue. A pontention of respondent on appeal that the crankiness of a planing machine and its propensity to suddenly shoot a plank towards the back rollers, etc., was the proximate cause, or one of the proximate causes, of his injury, will not be available to him, on appeal, if neither by his petition nor by his instructions any such issue was submitted to or tried in the lower court.
    2. ——: -: -: Warning.. Where plaintiff charges his master with failure to warn him of certain defects in the machine with which he was working, the master cannot be held for negligence in failing to warn him of certain other defects.
    3. Warning: When Not Required. When the voluntary act which injured the adult plaintiff was such as all men of ordinary intelligence would pronounce dangerous, it was not negligence in his employer not to warn him of the obvious danger in performing that act.
    4. -: Hazardous Act: Performed Before. The fact that plaintiff and other operatives of the planing machine had previously performed without injury the same exceedingly dangerous act which injured plaintiff, does not make the act any the less negligent.
    5. -: -: -: Custom'. The customary way of unelogging a planing machine was, while the machine was running, to place the hand in the eight-inch space between the presser-bar and rollers and take out the clogging shavings and sticks therein. The speed of the machine was such that it moved a plank fifteen inches a second across this space. Plaintiff, an assistant to the operator, forty-five years old and having worked with the machine two or three days, saw a plank three-eighths of an inch thick and three or four feet long in this eight-inch space, and put in his hand with the intention of raising it above the rollers and taking it out. As he took hold of the board the knives seized it and drove it, with his hand, into the rollers. There had formerly been a shield over the rollers, but for two months there had been none, and plaintiff charges his injuries to the absence of this shield and to defendant’s failure to warn him that it was dangerous to undertake to unclog the machine in the absence of such shield. Held, that the custom of removing the shavings and sticks did not cover his act of taking hold of the board, and his act being voluntary and imminently and obviously dangerous, he cannot recover. Held, also, that had the shield been present it would not have entirely obviated his injury, but it would at most have been only less in degree.
    6. -: Hazardous Risk. No man of ordinary prudence will put his hand to the obvious hazard of a half second, and no man has either the legal or moral right to do so unless duty and the exigencies of the situation demand it.
    7. -: Choosing Dangerous Way. Where an employee chose the obviously dangerous way of unclogging a planing machine by removing a plank while it was running, when the machine could have been stopped by simply throwing a lever and this safe way was apparent, he cannot recover.

      8. -: Statute: Guarding Drums. The statute requiring “the belting, shafting, gearing and drums” in factories to be guarded has no application 'to the rollers of a planing machine.
    Appeal from Jackson Circuit Court. — Row. J. R. Slover, Judge.
    Reversed.

      Earhless, Crysler & Eisted for appellant.
    (1) The evidence failed to show any negligence on the part of defendant. (2) The mere failure to cover the rollers with a shield did not establish negligence per se, or show that it was the proximate cause of plaintiff’s injury. McGuerty v. Hale (Mass), 36 N. E. 682; ■Carroll v. Williston (Minn.), 46 N. W. 353. (3) A failure to instruct the servant as to dangers of a machine, which are obvious, does not constitute negligence. Nugent v. Milling Co., 131 Mo. 241; Herbert v. Boot & Shoe Co., 90 Mo. App. 305; Jones v. Roberts, 57 111. App. 56; Doolittle v. Pfaff, 92 111. App. 301; Groth v. Thomann, 86 N. W. 178. (4) Plaintiff was guilty of negligence precluding his right of recovery. Doerr v. Brewing Ass’n, 176 Mo. 574; George v. Mfg. Co., 159 Mo. 333; Meily v. Railroad, 81 S. W. 639; Richardson v. Mesker, 171 Mo. 667. (5) Plaintiff having voluntarily attempted to remove the obstruction from the knives while the rollers were in motion, instead of stopping them, is bound by the consequences resulting from his choice of the more dangerous of the two courses of procedure which were open to him. Moore v. Railroad, 146 Mo. 572; Palmer v. Kinloch & Co., 91 Mo. App. 106.

      L. B. Sawyer and Porterfield S Conrad for respondent.
    (1) The petition states a cause of action and defendant makes no objection in its brief and argument on that score. The allegations of negligence in the petition were abundantly proven. The evidence on the part of plaintiff thoroughly established defendant’s negligence in not furnishing plaintiff with reasonably safe machinery about which to work in the performance of his duties, and as to the failure of defendant to warn or instruct plaintiff how to unclog the planer, defendant knowing the plaintiff to be inexperienced and untutored. Sec. 6433, R. S. 1899; Lore v. Mfg. Co., 160 Mo. 621; Bair v. Pleibel, 103 Mo. App. 633; Nichols v. Plate Glass Co., 126 Mo. 55; Curtis v. McNair, 173 Mo. 270; Porter v. Railroad, 71 Mo. 71; Bowen v. Railroad, 95 Mo. 276; Hamman v. Coal & Coke Co., 156 Mo. 243; Doyle v. Trust Co., 140 Mo-. 15; Hamilton v. Mining Co., 108 Mo. 364; Henry v. Railroad, 109 Mo. 488; Wheeler v. Mfg. Co., 153 Mass. 294; Ertz v. Pierson, 86 N. W. 680; Verdelli v. Gray Harbor, 115 Cal. 517; Jarvis v. Wrench Co., 177 Mass. 170; Laundry Co-, v. Crawford, 13 Am. Neg. R.ep. 355; Atkins v. Merrick, 142 Mass. 431. (2) The shield was broken off from its place on the top back roller two or three months before plaintiff was injured and allowed to remain off until after the injury occurred. It was clearly possible and practicable to guard the back rollers as they were guarded in the construction of the planer. The failure of defendant to replace the'shield when it was broken off and keep it replaced is, under section 6433, Revised Statutes 1899, negligence per se. Lore v. Mfg. C'o., 160 Mo. 621; Bair v. Pleibel, 103 Mo. App. 633; Colliott v. Mfg. Co., 71 Mo. App. 171. (3) The question of contributory negligence was, under the evidence in this case, and the law of this State, a question' for the jury. Cole v. Railroad, 183 Mo. 81; Pauck v. St. Louis Beef & Provision Co., 159 Mo. 467; Hamman v. Coal & Coke Co., 156 Mo. 243; Bender v. Railroad, 137 Mo. 240; Weller v. Railroad, 120 Mo. 649; Hamilton v. Mining Co., 108 Mo. 365; Dean v. Woodenware Works, 106 Mo. App. 167; Palmer v. Kinlock Tel. Co., 91 Mo. App. 106; Herbert v. Boot & Shoe Co., 90 Mo. App. 305; Ingerman v. Moore, 90 Cal., 410; Evans Laundry Co. v. Crawford, 13 Am. Neg. Rep-. 355; Jarvis v. Wrench Co., 177 Mass. 170; Atkins v. Merrick, 142 Mass. 431; Ertz v. Pierson, 86 N. W. 680; Wheeler v. Mfg. Co., 153 Mass. 294; Norris v. Packing Co., 17 Am. Neg. Rep. 48. (4) Defendant also pleaded assumption of risk on the part of plaintiff. The fact that plaintiff was not engaged at the time he was injured in the work he was employed to do makes that defense ineffective. To say the least, the question was properly submitted to the jury. Pauck v. Beef & Provision Co., 159 Mo. 467; Settle v. Railroad, 127 Mo. 336; Herdler v. Stove & Range Co., 136 Mo. 17; Wendler v. People’s Co., 165 Mo.- 527; Blanton v.- Dold, 109 Mo. 64; Hurst v. Railroad, 163 Mo. 309; Hamman v. Coal Co., 156 Mo. 232; Palmer v. Kinloch Tel. Co., 91 Mo. App. 106; Shore v. A. B. Co., 86 S. W. 905; Dean v. Woodeuware Works, 106 Mo. App. 167; Wheeler v. Mfg. Co., 153 Mass. 294; Keegan v. Kavanaugh, 62 Mo. 232. (5) The defective or unsuitable condition of the planer which resulted in its frequently choking up and requiring unclbgging, together with the absence of the shield, was the proximate cause of the injuries to plaintiff. -Lore v. Mfg. Co., 160 Mo. 608; Musick v. Dold Packing Co-., 58 Mo. App. 322; Bassett v. St. Joseph, 53 Mo. 290. (6) It was the hidden and unexpected danger of the shooting of the board toward and between the back rollers that proximately caused plaintiff’s injuries. The hidden danger hurled his hand between the rollers. See cases cited to point 5. (7) The defendant knew that plaintiff was totally inexperienced and uninstructed in the matter of working with a planer and that the planer was a dangerous piece of machinery. It was therefore the legal duty of defendant to instruct plaintiff as to the proper method of unclogging the planer and warning him of the dangers connected therewith. Nichols v. Plate Glass Co., 126 Mo. . 55; Curtis v. McNair, 173 Mo. 270; Pauck v. St. Louis Beef & Provision Co., 159 Mo. 467; Dean v. Woodenware Works, 106 Mo. App. 167; Evans Laundry Co. v. Crawford, 13 Am. Neg. Rep. 355; Thomas Jaroszeski v. Mfg. Co., 8 Am. Neg. Rep. 481; Wheeler v. Wason Mfg. Co., 153 Mass. 294; Atkins v. Merrick, 142 Mass. 431; Jarvis v. Wrench Co., 177 Mass. 170; Hamilton v. Mining Co., 108 Mo. 364. (8) Plaintiff being inexperienced and uninstructed by defendant in the matter of unclogging the planer, he employed the same methods as were used by the experienced men in defendant’s factory and the methods that were customary therein and tacitly approved by the foreman who was present every few minutes superintending the work. Under the circumstances the court could not hold, as a matter of law, that plaintiff was guilty of contributory negligence. The same applies to the fact that it was customary to unclog the planer while it was running. It was the custom and practice in defendant’s factory to unclog the planer while it was running, except only when it was clogged up so that it could not be cleaned out without stopping it. See cases cited to points 5 and 7. (9) All the witnesses agreed and the defendant concedes that if the shield had been in its place plaintiff’s hand and arm would not have been injured. Witness Kline was competent, by reason of his long experience, to testify as to the purpose of the shield and his evidence upon that point was properly admitted. That evidence could have had very little, if any, influence with the jury, however, because it was conceded that if the shield had been in its place the injuries would not have occurred, and, more particularly, because the jury personally inspected the planer with the shield off and on. Doyle v. Trust Co., 140 Mo. 20.
   MARSHALL, J.

— This is an action for ten thous- and dollars damages for personal injuries received by the plaintiff on the 31st of December, 1901, while in the employ of the defendant as a helper in operating a planer used by the defendant in manufacturing boxes. The plaintiff recovered a judgment of seven thousand dollars, from which the defendant, after proper steps, appealed.

THE ISSUES.

The petition after alleging the corporate capacity of the defendant and the fact that the plaintiff was engaged as a helper in operating a planer in the defendant’s factory charges: “That the said planer was defective and out of repair in this, to-wit: the shield which acts as a protection to the operator and helper was broken off and had been off for at least two' months prior thereto; that said machine was so defectively constructed and out of repair that it would clog up when used in planing short, thin lumber, which condition of said machinery was unknown to plaintiff; ’ ’ that on the day of the accident by reason of its defective condition, the planer became clogged up with the short, thin lumber, and it was the duty of the plaintiff, in the exercise of his employment, to clean out the same; that in doing so plaintiff, in the exercise of ordinary care and with no fault on his part, took hold of a piece of lumber, and by reason of the defective condition of said planer and the absence of the aforesaid shield, plaintiff’s left hand came in contact with the said planer, and was greatly injured.

The negligence charged in the petition is: “First, that defendant was careless and negligent in furnishing plaintiff with machinery which was, on December 31, 1901, and had been for a long time prior thereto, in a dangerous and defective condition, as hereinbefore stated, which defects were known, or by the exercise of ordinary care might have been known, to defendant. Second, that defendant was negligent and careless in not warning plaintiff of the danger in connection with said work and said defective machine, knowing plaintiff to be inexperienced in such work, and that plaintiff did not know of said' defect in said machinery. Plaintiff says that he is not able to state more definitely or with' more certainty than is hereinbefore stated, the defective condition of said planer or the time, place and circumstances, when, where and how he received the said injuries.” The petition then sets out the nature and character of the injuries received, and asks judgment for $10,000.

The answer is a general denial, coupled with a plea of contributory negligence and assumption of risks. The reply is a general denial.

The case made is this:

About the 1st of December, 1901, the plaintiff entered into the employment of the defendant and worked in the yard handling lumber. Two or three days before the date of the accident he was assigned to duty as helper to the operator who was running' the planer, his duties being to carry off the lumber from the machine and to help clean it out when it got clogged. The planer could be so adjusted as to plane lumber varying in thickness from three-eighths of an inch to sis inches. During the time the plaintiff was engaged as such helper the machine clogged quite frequently. Two or three times the plaintiff and the operator stopped the planer to clean it out. At other times they cleaned it while it was running. No instructions had been given to the> plaintiff or the operator as to stopping or not stopping the machine when unclogging or cleaning it. That was a matter that was left entirely to the discretion and judgment of the operators and they stopped it or not as they chose and as they deemed best. Plaintiff thus describes the planer, and for the purposes of this case the description will be accepted as correct: “The planer was about hip high. At the front of the planer there wás a pair of rollers, one above the other, to lift the boards into the machine. A little further back was another pair of rollers to start the boards under the'knives —then the knives. There was a space of eighteen inches between the knives and another pair of rollers at the back end of the planer. In this eighteen-inch space there was an iron bar, called the presser-bar, crossing the planer. The presser-bar did not in any way interfere with anyone working about the machine as plaintiff was when injured. From the presser-bar to the back rollers there* was a space of from six to eight inches. The back rollers carried off the finished boards to the plaintiff, who bore them to their place in the factory. The planer was constructed with a shield made of east iron, oval in shape to conform to the shape of the top roller, and fitted down over the front part of the top of the back rollers. The shield was fastened to the roller so that when the roller was raised by a thick board passing under it, the shield raised with it. The shield came down over the front roller so that the lower edge of the shield nearly touched upon the boards as they passed between the back rollers, no matter what their thickness was.” In addition to the foregoing descrip1tion, it is only necessary to say that the presser-bar, which crossed the roller in the eighteen-inch space between the knives and the back roller and which was within six or eight inches from the back rollers, was simply a piece of round iron or steel, the purpose of which is not very definitely stated in the testimony, but the object of which could only have been to hold the board in place while passing through the machine so as to conduct it to the back rollers and to prevent it from rising out of the machine before it reached the back rollers. And further to say, that the shield that had formerly been over the back rollers extended to within a fraction of an inch of the board that passed through the back rollers and had a piece of leather at its lower end which touched the board as it passed through the roller. • The knives were covered so as to prevent anyone working around the machine from coming in contact with them, and did not cause the accident in question, nor were they charged or shown to have been defective. •

The gravamen of the negligence charged in the petition is the failure of the defendant to provide a shield over the back rollers and the failure to warn the plaintiff of the danger arising from the absence of such shield. Originally the machine had such a shield over the back rollers, but about two months prior to the accident it was broken and had not been replaced at the time of the accident. There is a sharp conflict in the evidence as to the purpose of the shield. The testimony for the plaintiff tends to show that the shield was intended to prevent the hand of the operator when placed in the eighteen-inch space, aforesaid, to take hold of a board or other obstruction that clogged the machine, from being carried into and crushed by the back rollers, and that this was its only purpose. On the other hand, the testimony for the defendant tends to show that the purpose of the shield was to sweep off the shavings that remained on the board and prevent them from scarring or scratching the planed or finished surface of the board as it passed through the back rollers. The planer was run by machinery and the machinery could be stopped or started by a lever attached to the planer and in close proximity to the operator, which would throw off the belt that ran the planer without stopping the running of the other machinery. As before stated, it was discretionary with the workmen whether they would stop the planer while unclogging it or whether they would unclog and clean it while it was running, and it was customary for the workmen to do the one or the other as they saw fit. The plaintiff had done the work both ways during the time he was so employed, but generally cleaned it out while it was running. Sometimes the machine would run quite a while without being clogged and at other times it would clog every few minutes. The defendant’s foreman testified, and his testimony is uncontradicted in this regard, that whether it clogged or not depended largely upon the character of the lumber that was being plimed, and somewhat upon the manner of handling the machine. On the day of the accident the plaintiff and the operator were engaged in planing short, thin lumber about three-eights of an inch thick and from three and one-half to four feet long. It was what is called rough lumber. The machine became frequently clogged or choked that day. Some witnesses say it had choked every five, ten or fifteen minutes. About eleven o ’clock on the morning of the accident the machine became clogged again. Without stopping the machine the plaintiff and the operator undertook to unclog it. They were engaged in so doing about five minutes and supposed they had unclogged it when the plaintiff discovered a board, in the machine which had not passed out through the back rollers. The end of the board extended to within four or five inches of the back rollers. The plaintiff stood on the right hand side of the planer and the operator on the left. With his left hand the plaintiff reached into the space of four or five inches, aforesaid, between the end of the board and the back rollers, and between-the presser and the back rollers, and took hold of the board and attempted to raise the end so as to take it out of the planer without having it pass through the back rollers, as he claims was his purpose. The evidence does not disclose whether he took hold of the end of the board or of the side of the board near the end. In the briefs of counsel for plaintiff it is stated that he took hold of the loose end of the board. In oral argument counsel stated that he took hold of the side of the board near its end. The materiality of the manner in which he so took hold of the board will appear later. Just as the plaintiff got hold of the board it started suddenly and rapidly toward the back rollers and carried plaintiff’s hand into the rollers and injured it. The only evidence in the record as to the speed of the planer was that introduced by the defendant which showed that “the speed is eighty-five lineal feet per minute,” that is, it would plane 85 feet of board per minute or about 15 inches per second.

The plaintiff was forty-five years of age and a man of ordinary intelligence. He had formerly worked in lumber yards, but had no experience with planers or machinery, although he had frequently seen them at work. He says he knew that if he put his hand in the rollers he would get hurt, but that he did not intend to place his hand where it would get hurt. He says he intended to put his hand in the six or eight inches of space between the presser and the rollers and to lift up the board and pull it out of the planer, and not for the purpose of pulling it through the back rollers. The plaintiff says he does not know what caused the board to start unless it was that as he raised it the knives got a little more hold on to the board and started it towards the back rollers and thus carried his hand between them.

Over the objection of the defendant the plaintiff was permitted to testify that the defendant did not warn him of the danger to be incurred by running or helping to operate the machine. There was some testimony to the effect that the lever did not always stop the running of the machine promptly, but no evidence that there was any other method of stopping the planer without stopping the machinery, and the undisputed evidence was that when the planer got too badly choked it was stopped and an attempt was made to clean it; and the evidence is further undisputed that, although the lever did not always stop the running of the planer immediately upon being applied and that it sometimes would make two or three revolutions before it stopped, still the evidence is uneontradicted that by the application of the lever and the throwing of the belt the planer would stop. Inasmuch as counsel differ as to whether the plaintiff took hold of the end of the board or the side of the board near the end, it is necessary to state fully all that is disclosed by the evidence in this regard. The.testimony of the plaintiff was as follows: “I had reached over and took hold of this board to pull it out and just as I took hold of the board and started to raise up the hoard, the hoard started in, drawing my hand between the rollers of the machine.” Plaintiff’s witness Elmer Trewell, the operator of the machine, testified as follows: “ Q. Now, did you see Smith, take hold of this piece of board that was stuck in the machine? A. Yes, sir.” This is all Trewell said in reference to the manner in which plaintiff took hold of the board, and this is all the evidence in the record upon that question.

It is contended for the plaintiff that the evidence discloses that the plaintiff in putting his hand into the machine as aforesaid pursued the usual and customary manner of unclogging the machine that obtained in the defendant’s factory. The evidence in reference to the manner in which the machine had previously been unclogged, as disclosed by the record, was as follows: The plaintiff testified: “Q. Now, you tell us you had been doing this before? A. Yes, sir. Q. How long had you been doing it? A. Two or three days.” Trewell testified: “Q. Was it customary there to clean out the planer when it was running?” This was objected to. The objection was not passed upon and the question was not answered. He was then asked: “Q. What did you do about cleaning it out when running?” This was objected to and the court said: “You can ask him whether it was running or standing still.” The plaintiff then asked: “Q. You say it was running when you cleaned it out? A. Yes, sir. Q. Every time that morning ? A. I think so, but I do not remember whether I stopped it at any time or not, but I do not think I did.” He further testified: “Q. Did you see Smith take hold of this piece of board that was stuck in the machine? A. Yes, sir. Q. Did you have it all cleaned out except that? A. I think so. We thought it was all cleaned out when he found this board. Q. And that piece when he took hold of it drew his hand into the rollers? A. Yes, sir. Q. How long had you been cleaning it, this machine, in that way? A.. Ever since we had been running it; all the time. ’ ’ He further testified: “Q. There were other times when you attempted to clean it out while it was running? A. Yes, sir. Q. Now, you never stopped it? A. Yes, sir; I have stopped it lots of ‘times. Q. For what purpose ? A. To oil it or fix it or do anything around it. Q. Did you ever stop it to get it cleaned out when it was choked up? A. Once in awhile, hut not often. Q. Did you ever do it? A. Yes, sir. I have stopped it. Q. To clean it? A. Yes, sir. Q. When you stopped it to clean it you cleaned it with your hands? A. Yes, sir. Q. Sometimes cleaned it while it was running with your hands ? A. Yes, sir. I have cleaned it many times with my hands while it was running. Q. So the question of whether the machine would he stopped to clean it or whether or not you would clean it while it was running was a question that you decided ? A. Yes, sir. Q. The workmen decide that? A. Yes, sir. Q. If you thought you ought to stop it before you cleaned it with your hands, it was your right to do so ? A. Yes, sir. Q. And you would do so? A. How is that? Q. Whenever you found it was choked up so you thought it ought to be stopped to clean it you did so? A. Whenever it was choked up so I could not clean it any other way. Q'. But you, yourself, determined the question whether it should be stopped or not? A. I used my own judgment about that.” On being recalled the plaintiff testified as follows : “ Q. Mr. Smith, when this machine would sometimes he clogged up you would use a stick to unclog it? A. Sometimes when it was under the rollers so tight that we could not pull it out we would push it on the other side to the other man to get hold of it. Q. Why did you use a stick? A. Because we could not reach it with the hand. Q. If it was close enough you would ^do it with your hand and it was safe enough? A. Certainly. Q. Why didn’t you use a stick when it was close to you? A. Because I could not get hold of it. Q. Is that the only reason why? A. Certainly. Q. Your deposition was taken in this case at one time, wasn’t it? A. Yes, sir. Q. Was this question asked you in your deposition: ‘Q. When was it yoii used a stick? A. Sometimes we would use a stick when the stuff would he broken up and piled between the middle rollers of the machine and then we would have to take our hands and ' reach over there and pull it out. ’ Q'. Did you say that ? A. Yes, sir.”

Kline, a witness for plaintiff, testified as follows: ‘ ‘ Q. When it clogged up what would you do ? A. Clean it out — take our hands and clean it out. Q. I will ask you what you did. when you found it clogged up? A. Why, we cleaned it out. Q. Tell how you cleaned it out. A. With our hands — pulled the sticks out. Q. Was the machine at these times running or stopped? A. Well, it was running most of the time.”

Trewell testified on cross-examination as follows: “Q. Had you been in the habit during the time you were operating this machine of putting in your hand and pulling out the choke-up ? A. Yes, sir. Q. That had been your habit and practice always? A. Yes, sir.”

At the close of plaintiff’s case and again at the close of the whole case, the defendant demurred to the evidence. The court overruled the demurrer, and the defendant excepted, and that ruling is now assigned as the chief error.

At the request of the plaintiff the court instructed tlie jury that if the machine was defectively constructed and out of repair and dangerous, in that, it would clog up and require cleaning out, and that in the absence of the shield spoken of in the evidence it was liable to catch the hand of the person so cleaning it out and injure him, and that the defendant knew, or by the exercise of ordinary care could have known, of such defect and danger, then the plaintiff was entitled to recover unless he was himself guilty of negligence, or that he assumed the risk of doing the work as defined in the other instruetions. The court also instructed the jury upon what constituted negligence and upon the assumption of risks. In addition to the demurrers to the evidence, the defendant asked the court to instruct the jury that if the plaintiff had the option to turn the lever and stop the machine before undertalcing to remove the piece of board that clogged the machine, and did not do so, then he could not recover. The court refused the instruction in this form, but modified it by saying that if he negligently failed to do so he could not recover, and gave it in the modified form. The defendant further asked the court to instruct the jury that if the plaintiff put his hand between the pieces of machinery and near the rollers while they were in full operation and with full knowledge of what he was doing and of the surrounding conditions, and that the same was a dangerous thing to do, and that injury might have reasonably been expected to result from such act, then their verdict should be for the defendant. This instruction the court refused to give.

Although the petition assigned as negligence the inexperience of the plaintiff and the failure of the defendant to warn the plaintiff of the dangers to be apprehended, and the failure to. instruct him how to operate the planer, and although over the defendant’s objection the plaintiff was permitted to show that the defendant had not instructed the plaintiff as aforesaid, the plaintiff did not ask any instruction and the court did not instruct the jury on this feature of the case. As be-. fore stated, the plaintiff recovered a judgment -for $7,000, and, after proper steps, the defendant appealed.

I.

The second ground of negligence assigned by the plaintiff is the failure of the defendant to notify the plaintiff of the danger incident to the operation of the planer. As hereinbefore noted, this feature of the case was not submitted to the jury at all, and except for the fact that the evidence offered by the plaintiff in support of this allegation of negligence was admitted by the court over the objection of the defendant, and except for the further fact that in oral argument and in brief plaintiff’s counsel now lay great stress upon what •they designate as the crankiness of the planer in its erratic way of suddenly impelling a board to pass through it and shooting unexpectedly toward the back rollers, which constituted a hidden danger that was not known to the plaintiff and which is now said to be the proximate cause of the injury, or at least one of the proximate causes of the injury, it would not be necessary to further consider this assignment of negligence.

The crankiness of the machine and its propensity to suddenly shoot a plank toward the back rollers is not charged in the petition as a defect in the machine, nor was it made an issue in the pleading. The sole defect alleged in the petition was the absence of the shield aforesaid. The case was put to the jury by the instructions of the plaintiff solely upon, the ground that the defect in the machinery consisted in the fact that it would clog up and required cleaning and that in the absence of the shield it was liable to catch the hand of a person and injure him. The argument now made that the crankiness of the machine is the proximate cause, or one of the proximate causes, of the injury, cannot be allowed to avail the plaintiff in this court, for neither by petition nor by instruction was any such theory submitted to or tried in the lower court. The same is true as to the second ground of negligence alleged in the petition, for there the warning, which it was alleged the defendant failed to give the plaintiff, referred solely to “said defective machine,” and the petition contained no averment of any other defect than the absence of the shield. This contention, therefore, need not be further referred to, and the failure to warn the plaintiff need only be considered with reference to the dangers to be apprehended from the failure to have the shield over the back roller. It is true the plaintiff had no prior experience in the operation of machinery, but he was a man forty-five years of age and possessed of ordinary intelligence. He was certain that if he put Ms hand into the machine so that it would come in contact with the back rollers the result would be that he would be hurt.. Whether he made this admission or not, the danger resulting from allowing one’s hand to come in contact, with those rollers was perfectly obvious and it needed no warning to advise the plaintiff, or any one of ordinary common sense, of such danger. The plaintiff saw when he first began to work on the planer that it had no shield over the back rollers. He also saw and knew that the board in passing through the planer passed under the presser-bar and through the back rollers. The presser-bar was within six or eight inches of the back rollers. The speed of the planer was fifteen inches per second. At the time of the accident it was running at full speed. There was a space of about five inches between the end of the board and the back rollers. The plaintiff put Ms hand into the space between the presser-bar and the back rollers while the macMne was running at full speed, for the purpose, as he says, of lifting the board out of the planer, and not for the purpose of pulling it through the back rollers. Whether he took hold of the end of the board, as his counsel state in the brief, or the side of the board near the end, as counsel state in oral argument, the fact remains that it needed no warning from anyone to tell Mm that if the knives engaged the plank it would drive the plank the distance of five to eight inches and against or between the back rollers in about one-half of a second. No warning that could have been given by anyone could have served to instruct any man of the danger of so doing any more effectually than the object lesson presented to the eye of the plaintiff at the time he put his hand into the planer.

The fact that other operatives and the plaintiff had previously so done did not in any way make the act any the less a negligent act, and it is inconceivable that any man possessed of ordinary intelligence would have attempted to do such a thing. Moreover, while there is evidence that the customary way of cleaning the machine when it was clogged was to put the hand in this eighteen-inch space and take out'the shavings or sticks therein that clogged the machine, nevertheless there is absolutely no evidence in the case that anyone had ever before placed his hand in the space between the presser and the back rollers for the purpose of taking hold of a board that was clogged there and attempting to lift it out of the planer without having it pass through the back rollers. It is manifest that there is a great difference between taking hold of shavings or sticks that were in that space and taking hold of a plank that was in that space. Shavings or sticks could not be propelled forward by the movement of the knives, for the knives did not engage or touch them, whereas when a plank was caught between the knives, the instant the obstruction was removed the knives would force the plank forward. In short, the custom to which the evidence relates does not cover conditions such as are here presented, and even if a negligent custom could be accepted as a good excuse, no such negligent custom is shown in this cause as to taking hold of boards. As was well and aptly said by Brace, J., speaking for this court, in Doerr v. Brewing Assn., 176 Mo. l. c. 556: That pit was a dangerous place for a human arm to be in at any time while the shaft was in motion, whether moving at the rate of one revolution every one, two or three seconds. No man has the moral or legal right to put his life or limb to the hazard of a second, unless duty and the exigencies of his situation imperatively demand it. No man of ordinary prudence will do so. There was no such demand in this instance. The plaintiff was a man of mature years. He had been oiling this machine for four months. He knew the danger of thrusting his arm into this pit, when the shaft was in motion. The risk was manifest, the danger imminent. The discharge of no duty within the scope of his employment called for the assumption of such risk. The recovery of the funnel was a matter of little or no importance, and could have been easily effected without incurring risk. The fact that the plaintiff had before this accomplished the feat of recovering the funnel by hand when the shaft was in motion, or that others may have done so, affords no excuse for his action, nor furnishes any reason for charging his employer with the consequences of his folly. Hence, conceding that the marvelous instantaneous acceleration of the speed of the shaft took place as testified to by the plaintiff, this eccentric movement could at most have been no more than a cause contributing with his own negligence and want of ordinary care to his injury. The court erred in refusing to sustain the demurrer to the evidence, and for this error the judgment will be reversed.”

What is there said applies with full force to the case at bar; the only difference between the two’ cases being that in the one instance the man had had four months experience, while in the case at bar he had only three days experience, which considering the obvious character of the danger to be incurred and the fact that such danger was imminent, makes the difference in the experience of the operatives in the two' cases wholly immaterial.

The case at bar also falls within the principles announced in George v. Manufacturing Co., 159 Mo. 333, where it was said: ‘ ‘ The machine was in perfect running order; reasonably safe of its character, for the purposes for which it was being used. The plaintiff was familiar with its construction and operation. He was furnished a safe place for the discharge of ‘the duties of his employment in connection with the machine. In the discharge of those duties with ordinary care it at no time became necessary that his arm should be placed in dangerous proximity to the edge of the rapidly revolving knives from which he received the injury. Even if the holes into which the shavings fell did become clogged, they could have been easily removed with ordinary care without exposing plaintiff to any risk of injury. The use of a longer stick even for the purpose of punching the shavings through the hole would have obviated any possible danger on this occasion. It is so evident upon the face of the plaintiff’s Own statement that his misfortune was the result of his own want of care and of no failure upon the part of his employer to discharge any of its duties to him, that argument in the ease would be superfluous. ’ ’

And in Nugent v. Milling Co., 131 Mo. l. c. 256, a case very analogous to the case at bar, it was held that the failure of a master to instruct his servant as to the danger of a machine which was obvious does not constitute negligence, the court saying: “He knew as well as any one connected with the mill that if his hands came in contact with the revolving cylinders they would be crushed to pieces, and it is a matter of no concern that he was not so informed by the manager of defendant’s mill. Whatever there was ,of danger or risk he could see and appreciate as well as any one, and as it was known to him he was as legally responsible for his own protection as was the foreman in charge of the mill for his protection — he needed no special instruction as to the danger.”

Plaintiff admits that he knew if his hand came in contact with the rollers it would be injured. His only excuse for putting his hand into that small space between the presser and the back rollers is that he did not intend to put his hand where it would come in contact with the back rollers. But any man of ordinary intelligence would know that if he did so, the danger of injury was imminent, for the danger was obvious. Such an act itself suggests the inevitable consequences. If he took hold of the end of the board and the board started with the speed of the planer, his hand wonld be hurt whether there was a shield on the back roller or not, for whilst with the shield the hand would not be carried between the rollers, possibly, still his hand wonld be crushed between the end of the board and the shield. If he took hold of the side of the board near the end, and there was only eight inches of space between the presser and the back rollers, he wonld have taken hold of the side of the board within eight inches of the back rollers, and he must have known that when the plank was propelled forward by the knives, his hand wonld come in contact with the shield if there was a shield or with the back rollers if there was no shield. Having hold of the side of the plank, the effect might have been to break his hold on the plank and loosen his hand from the plank, and thus his injnry would not have been as serious as if he had had hold of the end of the board, but in either event some injury wonld have ensued. And, therefore, whether he had hold of the end of the plank or the side of it, the injnry to be apprehended was certain and the extent only one of degree.

This, therefore, is not a case where the master can be adjudged guilty of negligence in not having warned the servant of the dangers to be incurred, for such dangers were perfectly obvious and imminent.

II.

The plaintiff says he intended to take hold of the plank and lift it out of the planer and not to pull it through the back rollers. How this could have been accomplished surpasses comprehension. The plank was three-eighths of an inch in thickness and three and one-half to four feet long. The distance the plank was below the top of the planer does not accurately appear from the evidence, but at any rate it was lower than the top of the planer, for it was intended to pass under the presser and between the back rollers. Upon the principles of applied mechanics it is impossible to conceive that any one of even the most ordinary intelligence could have expected to take hold of the end of the plank between the presser and the back rollers where only eight inches of the plank at most was exposed, and lift it out of the planer. A plank of the length described and three-eighths of an inch in thickness could not be bent by hand in that way, but whether it could or could not have been accomplished, the danger of attempting so to do was perfectly obvious, and it was negligence for the plaintiff to attempt to do so.

■ III.

The evidence clearly shows that the plaintiff could have stopped the planer by merely throwing the lever, which was provided for that purpose and was easily within reach, and could have thus safely unclogged or cleaned the machine while it was at rest. Instead of so doing he undertook to unclog it while it was in motion.

In Moore v. Railroad, 146 Mo. l. c. 582, this court quoted with approval the rule laid down in Bailey on Personal Injuries Relating to Master‘and Servant, vol. 1, sec. 1121, where it is said: “It is a familiar principle, which common sense as well as the rules of law ought to teach any one, that where an employee of a railroad knowingly selects a dangerous way when a safer one is apparent to him, and is thereby injured, he is guilty of contributory negligence. ”

And in section 1123 the same authority says: “Where a person having a choice of two ways, one of which is perfectly safe, and the other of which is subject to risks and dangers, voluntarily chooses the latter and is injured, he is guilty of contributory negligence and cannot recover.”

The plaintiff here selected an obviously dangerous method when a perfectly safe one was available to him, and when it was a matter entirely for his determination which course he would adopt, and must be held to the consequences of his own act.

IV.

The plaintiff, however, contends that this case falls within the rule prescribed by section 6433, Revised Statutes 1899. That section is as follows: “The belting, shafting, gearing and drums in all manufacturing, mechanical and other establishments in this State, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, shall be safely and securely guarded when possible; if not possible, then notice of its danger shall be conspicuously posted in such establishments.”

In Lore v. American Manufacturing Co., 160 Mo. 608, it was held that it was not necessary for a pleader to invoke the aid of the statute by any special reference thereto, but that it is sufficient to state the facts which bring his case clearly within the law; and that case correctly stated the rule of law. But the most casual reading of the statute demonstrates that it has no application whatever to the case at bar. The statute is confined to belting, shafting gearing and drums in manufacturing establishments. Neither the allegations of the petition nor the evidence in this case bring this case within the letter or spirit of the statute. The injury complained of was not caused by any belting, shafting, gearing or drums of the machine. And there is nothing in the case to show whether or not those features of the establishment were or were not properly safeguarded as the statute requires. The statute does not, either in letter or spirit, cover a case like the case at bar, and especially does not require rollers of a planer to have a shield or guard to prevent the hand of an operative from being injured by being thrust into it when the operative had taken hold of an obstruction in the planer as the plaintiff did in this case. Moreover, as hereinbefore pointed out, the plaintiff’s hand would necessarily have been injured in some degree even if there had been a shield over the back rollers.

Y.

The remaining negligence of the defendant complained of is that originally there was a shield in front of the hack rollers, which had been broken off about two months before the accident, and that in consequence thereof the machine was defective, and that the plaintiff did not know of such defect, and in consequence of the defect was injured.

' The shield was broken off at the time the plaintiff was assigned to duty as helper. The fact that there was no such shield was obvious to the plaintiff, and he admits that he knew there was no shield there during the time he worked with the planer. As before pointed out, if there had been a shield there the plaintiff would have been necessarily injured in some degree, perhaps less than if there was no shield; but whether the shield was originally intended to prevent the hand of the operator from coming in contact with the back rollers, as the plaintiff’s testimony tends to show, or whether its purpose was to sweep off the shavings from the board and prevent them from marring the planed surface of the boa:rd, as the defendant’s testimony tends to show was the purpose of the shield, is not for this court to decide, nor is it at all material to the ultimate determination of this case. The fact that being without a shield made it more dangerous to put a hand into the space between the presser and the back rollers was a fact which was obvious to the plaintiff, and, therefore, if it was negligence for the master not to have such a shield, it was equally contributory negligence for the servant to so place his hand in that space when there was no shield. So that the absence of the shield cuts both ways. Upon the whole case, it is plain that even if there had been a shield over the back rollers the plaintiff would have been injured in some degree by placing his hand in the space between the presser and the back rollers while the machine was in motion, and the fact that others had placed their hands in that space for the purpose of taking out shavings and sticks was no excuse for the plaintiff or such others to do so, and especially was no excuse for the plaintiff so to do' in order to raise the hoard out of the planer as he said he expected to do.

Upon the case made, therefore, whether considered from the standpoint of the plaintiff or of the defendant, the conclusion is irresistible that no case of actionable negligence has been made out against the defendant^ but that the" plaintiff’s misfortune must be attributed solely to his own negligence.

For these reasons the judgment of the circuit court is reversed.

Brace, G. J., Gantt, Burgess, Fox and Lamm, JJ., concur; Valliant, J., dissents.