author: SEILER, Judge.

text:
    William E. CRAIG, Burlington Northern, Inc., United States Railroad Retirement Board and James Cowen, Neil Speirs and Wyeth Quarles, Members of United States Railroad Retirement Board, Respondents, v. JO B. GARDNER, INC., J. Amot Hill and Sloan R. Wilson, Individuals d/b/a Hill & Wilson, Appellants.
    No. 60803.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1979.

      Jo B. Gardner, Monett, for appellants.
    E. Eugene Harrison, Ronald S. Reed, Jr., Vernon A. Poschel, Kansas City, Dale G.
    Zimmerman, Gen. Counsel, Railroad Retirement Bd., Chicago, Ill., Philip C. Ehli, Kansas City, for respondents.
   SEILER, Judge.

This case is a consolidation of separate appeals by two law firms, Jo B. Gardner, Inc., and J. Arnot Hill and his associate, Sloan R. Wilson, from a judgment in inter-pleader in the Jackson County circuit court. The main dispute is over a fee. Appeal was originally taken to the western district of the court of appeals, but the cause was transferred to this court prior to opinion because within our exclusive appellate jurisdiction under Mo.Const. art. V, § 3 (1945), since the constitutional validity of a portion of the Railroad Unemployment Insurance Act, 45 U.S.C. § 362(o) (1976) is at issue. Gardner asks us to determine whether the circuit court correctly awarded to Hill attorney fees of 25 percent of a recovery by Craig, plaintiff in the main action (a federal employers liability action, known as an FELA claim) and a defendant in interpleader, from his employer, Burlington Northern, Inc., and 40 percent to Gardner, with Hill’s 25 percent taken from Gardner’s percentage due to the latter’s promise to pay any fees owing to “other attorneys” by Craig. Secondly, we are asked to decide whether the United States Railroad Retirement Board can constitutionally claim a right to recovery under 45 U.S.C. § 362(o) of all sums paid by it to Craig from the amount collected by him in his judgment against Burlington Northern and, if so, can the Board do so without payment of a portion of Gardner’s attorney’s fees. Finally, Hill argues in his cross appeal that the court erred in failing to award him his proportionate share of the income produced on the interpleader fund, in addition to his attorney fees.

The facts are somewhat involved. Briefly, Craig was allegedly injured twice during the course of his employment as a switch-man for Burlington Northern, Inc., a railroad, at its hump yard in North Kansas City. The first accident allegedly occurred on September 5, 1971, the second on September 14, 1971. On December 18, 1971, Craig employed J. Arnot Hill to represent him in a suit against Burlington Northern. The portions of said contract pertinent to the issues before us stated:

“I, the said William E. Craig, hereby employ J. Arnot Hill as my attorney to prosecute my claim against the Burlington Northern Railroad in a claim for damages for injuries to my person sustained as the result of an accident which occurred on or about the 5th day of September, 1971, in Clay County, Missouri.

“As full compensation for his services, I agree to pay my said attorney a sum equal to 25% of whatever amount may be recovered either by settlement, suit or compromise and I hereby authorize my attorney to file suit on the above claim.”

On February 28,1972, Hill filed a petition in one count in the Jackson County circuit court against Burlington Northern, Inc., alleging injury from both accidents. Sometime in 1972, Wilson joined Hill’s firm, and took over the handling of Craig’s case. Hill did not know whether Wilson had had any prior FELA experience. Both Hill and Wilson had had trial experience, although Hill’s experience was mostly in the criminal area. Neither had ever litigated an FELA action like Craig’s although Hill had settled three FELA actions before trial. As detailed later herein, Craig became dissatisfied with their representation.

On July 5, 1973, Craig informed Wilson that he had decided to employ Gardner, who had had broad experience in FELA litigation. Craig and Gardner entered into a contract on July 9, 1973. In relevant part the contract stated that Craig hired Gardner to represent him in:

“the presentation and prosecution of a certain cause of action he has against Burlington Northern Railroad Co., Inc. and against all others liable for personal injuries and damages on or about the 5th day of September and the 14th of September both in 1971, caused by the negligence of said company .
and for its attorney fees second party Gardner shall have thirty-five percent of all sums before case is set for trial and 40% thereafter, after deducting doctor and hospital bills incurred for the purpose of preparing and presenting said claim . . . and in case nothing is recovered, the Second Party shall have nothing for his fees and expenses . .”

Added to the top of the contract, in longhand, appeared the following sentence:

“It is understood that 2nd party shall pay out of its fee any sums due and owing to other attorneys now employed by first party, but does not agree to defend any suit for attorney fees brought on behalf of other attorneys.”

On July 30, 1973, Craig wrote Hill and Wilson, dismissing them as his attorneys. Gardner amended the petition previously filed by Hill extensively, including dividing the suit into two counts, one for each accident. Count I was for the first accident, claiming negligence on the part of the railroad in failing to provide a safe place to work and count II was for the second accident, claiming violation of the federal Safety Appliance Act, where negligence and contributory negligence are immaterial.

On November 12, 1973, a jury returned a verdict for Burlington Northern on the September 5, 1971 accident, but for Craig on the September 12, 1971, accident, in the amount of $20,800.00.

On November 16, 1973, Burlington filed this interpleader action to determine to whom it should pay the judgment. It paid the sum of the judgment, plus interest, into court, and was dismissed from the action. The money was invested and ultimately grew to $24,385.04. At the conclusion of the interpleader hearing, September 9, 1976, the circuit court allowed the Railroad Retirement Board $2,514.60 in reimbursement for the sickness benefits paid Craig by it prior to suit, assessed court costs of $32.50 against the fund, allowed $8,320.00 in attorneys fees (40% of $20,800.00), of which $5,200.00 (25% of $20,800.00) went to Hill and the balance of $3,120.00 to Gardner (the court determined that Hill’s fee should come from Gardner’s share because of Gardner’s promise to pay any attorneys fees due and owing by Craig at the time of his employment of Gardner), $3,774.35 to Gardner for expenses incurred and the balance of $9,753.59 to Craig. Both Hill and Gardner appealed, raising the issues noted above. With the exception of the $5,200.00, the fund has been disbursed to the parties in the respective amounts stated above.

I.

The main controversy is between the opposing lawyers over who receives what fee, into which dispute are interwoven charges and counter charges as to unethical conduct and respective competency in handling railroad cases. Gardner contends Hill had no contract with Craig with respect to the cause of action on which recovery was had, that at the most there was an implied contract between Hill and Craig, on which the remedy would be in quantum meruit, that even then there was no substantial performance by Hill and that Craig was within his rights in discharging Hill. Hill contends that he had a contingent fee contract, represented Craig competently and is entitled to 25 percent of the amount recovered; that Gardner’s conduct was “unbecoming”, that he “snitched” or stole the ease and erroneously assumed there was no substantial performance by Hill. To resolve these matters, we first must set forth more of the facts, particularly those bearing on what Craig’s original lawyers, Hill and Wilson, did or did not accomplish on his behalf prior to their discharge.

Initially we note that the relation between a lawyer and his client is a delicate and exacting one, highly personal, 7 Am. Jur.2d Attorneys at Law, § 92, at 105 (1963). The cause of action or claim which is the subject of the contract between lawyer and client is the property of the client and not the attorney. Mills v. Metropolitan St. Ry. Co., 282 Mo. 118, 221 S.W. 1, 4 (1920). If plaintiff were dissatisfied with his attorneys he had the legal right to discharge them and employ other counsel, Allen v. Fewel, 337 Mo. 955, 87 S.W.2d 142, 145 (1935); In re Downs, 363 S.W.2d 679, 686 (Mo. banc 1963); McLaughlin v. McLaughlin, 427 S.W.2d 767, 768 (Mo.App.1968), subject to the attorney’s right under certain conditions to be paid a fee, In re Downs, 363 S.W.2d at 686; In re Thomasson’s Estate, 346 Mo. 911, 144 S.W.2d 79, 83 (1940).

The petition originally filed by Hill erroneously set forth the places where the accidents alleged to have been sustained by Craig occurred. Hill’s petition alleged that both accidents occurred in a repair building — the first while plaintiff in carrying out his duties as a switchman, was uncoupling a freight car in said building, and the second when he was again working in the same building and reached in to open a knuckle between freight cars when other cars were suddenly set in motion against him. Craig repeatedly pointed out to Hill and Wilson that the two accidents did not happen inside a building at all but occurred in the hump yard on what was known as No. 1 rip-track or repair track No. 1 north of the repair building. Craig himself drafted and delivered to Hill a proposed amendment, in which Craig named the specific paragraphs of the petition which should be amended, setting forth in direct and clear language what had happened and where it took place. Hill and Wilson, however, did nothing about amending the petition, nor did their interrogatories to the railroad inquire as to the location of the accident. Wilson’s explanation was that the railroad lawyers had taken the deposition of the plaintiff, and hence the railroad was aware where plaintiff contended the accident occurred. Therefore, he reasoned, an amendment of the petition just before trial to state correctly the place of the accident would not inject a new issue into the case, so as to produce a last minute delay or continuance. Whether or not Hill and Wilson were correct in this assumption, to Craig, a layman, it appeared his lawyers were ignoring his concern over what he regarded as an important error in the petition.

As time passed, Craig became aware that Wilson, who was the one looking after the case, was not well informed as to the day-to-day work of a railroad switchman and how switching operations were conducted in defendant’s Murray yard in North Kansas City, Missouri. One of Craig’s concerns was that he knew the company’s lawyers were familiar with the railroad and its operation; that railroaders have a language of their own when they are referring to such things as hump yards, or to cut a car, or to shoving, dragging, pulling, and flying switches; that neither Hill nor Wilson showed any familiarity with any of these terms or their meanings.

Although Craig testified that the railroad employees have to work by the rule book and the safety rules, neither Hill nor Wilson displayed any interest in the rules or sought to obtain copies. The attorney for the railroad testified that the rules were directly involved with respect to the second accident and that the rules must be pleaded in order to instruct on them as negligence per se.

Neither Hill nor Wilson at any time sought to go with Craig to the accident scene and have him point out what happened, nor did they do anything about taking any photographs of the place of the accidents, although they alleged, with respect to the September 5, 1971 accident, that plaintiff slipped and fell between the rails on an accumulation of oil and grease and other foreign matter. The railroad lawyer testified he believed pictures should be obtained as soon as possible.

Wilson testified about a settlement conference which he and Craig had with the railroad’s lawyer where the railroad had made a proposition that Craig be “elevated” to the position of hump foreman, which was not as strenuous a job as switchman. Wilson’s testimony was that Craig did not want that job. Craig, however, testified that a hump foreman is no more than a switchman with enough seniority to hold the job. Craig could not have held the job because he did not have enough seniority, so as he put it, there was “no deal there whatsoever”.

Craig also was upset over the way Hill and Wilson handled him with respect to preparing him for the thorough deposition which the railroad lawyers took. Wilson told him over the telephone it was nothing to worry about, that the lawyers were interested in the accident and to tell the truth. Consequently, said Craig, he worked the night before the accident, which left him sleepy and at the deposition it turned out that the railroad lawyers spent little time on the accident, but examined him in detail about his entire life and background up until the accident (Craig apparently had had a major accident prior to his railroad accident). Wilson testified he discussed the case with Craig thoroughly before the deposition, had him read written instructions on what to do in a deposition and told him to tell the truth and not volunteer.

The original petition was prepared by Hill, who said he considered federal employers liability accident cases easier than ordinary cases because the Act “gives you the edge”. Hill included both accidents in a single count, charging the railroad in substance with failing to provide a safe place of work. It was apparent from the allegations contained in Hill’s original petition that the case might involve a violation of the Safety Appliance Act, because he described the second accident as occurring when plaintiff reached in to open a knuckle between freight cars, an act not needed had the coupler been working properly. Under the Safety Appliance Act, obligations imposed on the railroad carriers are of an absolute nature. They do not depend upon the exercise of reasonable care. Liability follows from the mere use or maintenance of defective equipment and contributory negligence or negligence are not issues in the case. Hill admitted he had no knowledge of the Safety Appliance Act. Wilson stated that he was aware of the Safety Appliance Act, but in his opinion it had no application to Craig’s case. The count, however, on which the jury returned the verdict in favor of Craig for $20,800 was the count based on violation of the Safety Appliance Act.

From time to time Craig was after Hill and Wilson to take the depositions of the train crew and fellow workers whom he knew had been contacted by the railroad. He expressed his concern over the failure of Hill and Wilson to take these depositions or obtain statements from such witnesses. According to the lawyer for the railroad usually the depositions of the other railroad employees and supervisory personnel are taken by plaintiff’s counsel at or near the time plaintiff is produced for his deposition.

Wilson was interrogated about the failure to take these depositions. His explanation was that there was still plenty of time to do it, that it could be done shortly before trial. He also was asked about his failure to take the deposition of one George Reitz, a foreman who was in the tower at the time of the accident but was some distance away from where the accident occurred. He defended his failure to do that on the ground that Reitz was a favorable witness and he did not believe in taking depositions of favorable witnesses because this simply gave the other side an opportunity to locate evidence to be used in rebuttal. He conceded the same reasoning would apply in reverse with respect to his taking the deposition of witnesses who might be adverse to plaintiff, but did not explain how these depositions could be taken at the last minute and nevertheless leave him time to obtain evidence if it could be found to rebut such witnesses.

Wilson testified that he interviewed Mr. Craig, talked to him each week, and generally familiarized himself with the case. He prepared two sets of interrogatories, which requested names of witnesses and other information similar to that requested of Craig by the railroad’s attorney. The firm obtained several brief medical reports from Dr. Riller, Craig’s first physician, and two from Dr. Lippman, his second and treating physician, as well as a copy of the medical report prepared by the railroad’s doctor.

In response to an inquiry regarding settlement, Wilson did economic research to determine the value of Craig’s job and made a settlement offer of $25,000 if Craig kept his job, or $150,000 if not, to which the railroad did not respond. He interviewed Mr. Reitz, and had interviewed other witnesses, although he took no statements of the latter. He did not wish to interview favorable witnesses. He was aware of the rule books governing railroad operation and planned to get them before trial. He resisted, but lost, a motion to produce Craig’s income tax returns; filed (and settled two weeks after Gardner entered the main case,) a claim against Craig’s insurance company for medical bills for $650.00 (for which he was paid a fee of $200.00) and reached an agreement with the railroad, following filing of an injunction action, that Craig need not file a new medical report for each day he was unable to complete his shift because of his injuries.

Hill and Wilson argue that there was ample time for them to amend the petition to include a correct description of where the accidents occurred and to correct any other inaccuracies (a note to do so was in Craig’s file), to take depositions if necessary, and to familiarize themselves with the rule books governing operation of the railroad yard, which Wilson was aware existed. Wilson conceded they were not ready for trial at the time of their discharge.

Finally, in July 1973, after the case had been pending some 19 months, Craig called Hill’s office to inquire about the status of his case. He was told by a secretary that the case was set for September 17. He asked to talk to Hill and was told that Hill was on vacation in the Bahamas and would not be back for four or five weeks. Despite the fact that Wilson had been the one to whom Hill had turned over the case, Craig always considered that Hill was his main lawyer and would be the one to try the case. He therefore became extremely concerned because he did not see how, with the case set for September 17, with all the work that remained to be done, and with Hill not scheduled to be back until sometime in August, that Hill could possibly be ready and meet the railroad lawyers on an even basis. It was at this time that he determined to hire some lawyer who was expert in the trial of railroad cases and learned of Gardner and his reputation in that field.

We conclude from the evidence that, although Hill and Wilson accused Gardner of stealing or “snitching” Craig’s case from them, there is no evidence in the record to support any such assertion. Craig is the one who sought out Gardner. He telephoned Gardner and asked him to come to Kansas City. Gardner did so and Craig explained the situation. Gardner said he would be willing to enter the case and work with Hill and Wilson. He called on Wilson and went over the contents of Wilson’s file. Gardner concluded Wilson had done nothing which would be of any material assistance in successfully handling the case. He concluded further that neither Hill nor Wilson had any real knowledge of what was involved in preparing and trying such a case. Gardner therefore decided that he would have to proceed alone but he promised Craig that he would reimburse Craig for whatever fee, if any, it was ultimately determined that Hill and Wilson had coming from Craig. On July 30, 1973, Craig wrote Hill, terminating his services as his attorney and asking for an itemized bill for services rendered to date. On August 6,1973, Gardner entered his appearance as counsel in the case. Hill wrote Craig on September 11, 1973 saying that if Craig had retained additional counsel it was at Craig’s expense. Hill said they were reducing their percentage lien against whatever was recovered to “a reasonable amount” and also said that if Craig in his July 30 letter was guaranteeing payment of their fee based on hours spent then “we shall attempt to reconstruct the number of hours we have spent.” There is no evidence in the record as to hours, however.

Gardner promptly upon his entry into the case, filed the amended petition mentioned earlier, pleading the pertinent safety and operating rules, investigated the facts, interviewed the train crew, took their depositions, took photographs of the scene of the two accidents, filed additional interrogatories, met with the doctors, arranged for additional medical examination, and proceeded to trial, which, as said, took place in November 1973, approximately four months after Gardner entered the case.

II.

Is Hill entitled to a 25 percent contingent fee?

The trial court found that Hill had a written contract with Craig to represent him on both claims against the railroad, that Hill was competent in his representation of Craig and was discharged without fault on his part, that Hill had the option of treating his contract as rescinded and recovering the reasonable value of his services or recovering the stipulated contract percentage applied to the judgment recovered by the other lawyer, and that Hill was entitled to 25 percent of the amount recovered, or $5,200. As developed herein, we disagree as to Hill’s having a written (or even an oral) contingent fee contract with Craig as to the second accident (which is the only one on which a recovery was obtained) and from this it necessarily follows that we disagree as to the fee to be allowed, which, in the final analysis, is the crux of this case.

As seen earlier, the only contingent fee contract Hill had was with respect to the first accident, on which the jury awarded plaintiff nothing. The contingency of recovery in regard to that accident, therefore, never occurred. Although it unquestionably is true that there was an implied contract by virtue of what took place as events moved along between Craig and Hill with respect to the second accident on which Hill has rights with respect to quantum meruit recovery, as discussed later herein, there was no written contract on both accidents. Parol evidence may not be used to vary or contradict terms of an unambiguous and complete written instrument absent fraud, common mistake, accident or erroneous omission. Here neither Hill nor Wilson claimed that the second accident was left out of the written contract through such accident or mistake, but rather that the contract by its terms was meant to include the second accident also. But, the contract is not vague on this point. Parol evidence may not be used to create ambiguity in an otherwise unambiguous contract or to show that an obligation is other than that expressed in the written instrument. While collateral facts and circumstances may be introduced to ascertain the subject matter of the contract and to aid in interpreting it, such facts cannot cause the court to read into the contract something which it does not say.

Hill and Wilson nevertheless state that the court properly permitted Hill to testify that the parties understood' the contract to cover both accidents and that Hill had filed his petition as to both accidents. The record shows, however, that the trial court sustained Gardner’s objection to Hill’s conclusion as to how the parties interpreted the contract. The court did permit Hill to go on and state that he filed the petition as to both accidents as a result of the contract. However, this does not aid Hill’s position. We are left with a series of facts which show that Craig claimed two injuries, discussed these with Hill, but signed the contingent fee contract only as to the first injury. Subsequently Hill “as a result of the contract” filed a petition against Burlington Northern, Inc., covering both accidents. We can but conclude, inasmuch as no claim of accidental omission is made, that Hill for some reason chose to contract for a contingent fee only as to the first accident. We could only speculate as to his reasons. Clearly, however, even looking at the surrounding circumstances, no implied inclusion of the second accident in the written agreement may be inferred.

Hill and Wilson make no claim that a second, and oral, agreement for a contingent fee was reached as to the September 14, 1971 accident. An oral agreement for a second contingent fee agreement cannot be implied from the mere fact that Hill and Wilson filed as to the second accident also. While we have not found a Missouri case on the point, what law there is on the subject holds that a contingent fee agreement must be express, never implied. See, generally, Warner v. Basten, 118 Ill. App.2d 419, 255 N.E.2d 72 (1969) (a contingent fee agreement must always be express, never implied); Wells v. Haynes, 101 Ga. 841, 28 S.E. 968 (1897). There can, of course, be an implied contract of employment with an accompanying implied promise to pay the reasonable value of the service rendered. But to imply a contingent fee would be to imply a definite or fixed percentage. This should be the subject of an express agreement, written or oral, and not implication. The canons of ethics stress the advisability of lawyers and clients coming to an early and clear understanding as to the fee, preferably reduced to writing, especially where a contingent fee is involved. Rule 4, EC 2-19. We do not favor attempts at implied contingent fees.

III.

Is Hill entitled to a quantum meruit recovery?

Craig was aware that Hill and Wilson had filed a petition as to both accidents, and he acquiesced in its filing. A promise to pay the reasonable value of an attorney’s services is implied where there is no express contract, if the services are accepted by the client or rendered at his request, Connor Realty Co. v. St. Louis Union Trust Co., 176 Mo.App. 260, 161 S.W. 865 (1913); Woodruff v. Rusk, 229 Mo.App. 119, 76 S.W.2d 709 (1934); Union Electric Co. v. Jones, 356 S.W.2d 857 (Mo.1962), and recovery may be had in quantum meruit, Elliott v. Empson, 555 S.W.2d 46 (Mo.App.1977); Warder v. Seitz, 157 Mo. 140, 57 S.W. 537 (1900); Wells v. Haynes, 28 S.E. at 969, to the extent of the reasonable value of the lawyer’s services to his client.

Gardner contends, however, that Hill has no right to press his claim for recovery in the interpleader action, since the latter sounds in equity, Kearney Commercial Bank v. Deiter, 407 S.W.2d 575 (Mo.App.1966), and quantum meruit is a suit at law. We note that an action for an attorney’s lien is one in equity, rather than at law, Fein v. Schwartz, 404 S.W.2d 210, 228 (Mo.App.1966). The fact that quantum me-ruit relief is normally granted in an action at law is not a bar to our right to grant it herein, assuming such relief is otherwise proper. Once a court of equity has rightful possession of a case, as is true here, it will not relinquish it short of doing complete justice, within the scope of the pleadings and evidence, particularly under a general prayer for relief, State ex rel. Willman v. Sloan, 574 S.W.2d 421, 422 (Mo. banc 1978); Willman v. Beheler, 499 S.W.2d 770, 778 (Mo.1973), even though it must render relief traditionally legal in order to do so, Perry v. Perry, 484 S.W.2d 257 (Mo.1972), and even if the litigant has mistaken the specific relief to which he is entitled, Cannon v. Bingman, 383 S.W.2d 169, 173-174 (Mo.App.1964); Miller v. Haberman, 359 Mo. 1012, 224 S.W.2d 1002 (1949).

Of course, if Hill and Wilson’s petition had been based solely on their contract, we could not sua sponte grant unrequested relief in quantum meruit, Hadley-Dean Glass Co. v. Kay, 118 S.W.2d 31, 32 (Mo.App.1938); Wright v. Fick, 303 S.W.2d 157, 159 (Mo.App.1957). However, it is permissible to ask for alternative relief, either on the contract or in quantum meruit, rule 55.10; see Norman Schuman Interiors, Inc. v. Sacks, 479 S.W.2d 200 (Mo.App.1972). In their answer to the motion for interpleader, Hill and Wilson stated:

“Sloan R. Wilson and J. Arnot Hill request a hearing ... to allow said attorneys to prove their contract with plaintiff, or in the alternative the fair and reasonable value of their services to plaintiff.” (emphasis added).

As such, they did not claim strictly on the contract, and are not limited to relief on the contract. See Leggett v. Mutual Commerce Casualty Co., 250 S.W.2d 995, 998-99 (Mo.1952); Woodruff v. Rusk, 76 S.W.2d at 709. Cf. Mecartney v. Guardian Trust Co., 274 Mo. 224, 202 S.W. 1131, 1136 (1918).

Gardner contends further that his agreement to pay attorney fees owing by Craig was a contract of indemnity and not a third party beneficiary contract for the benefit of Hill, as is claimed by Hill. This is shown, says Gardner, by the clause in the contract which stated that Gardner would not “defend any suit for attorney fees brought on behalf of other attorneys.” We agree that the contract was not a third party beneficiary contract, but neither was it an indemnity contract. Rather, it appears that Gardner intended to reassure Craig that he would not be liable for more than one attorney fee by promising that he, Gardner, would pay out of any fee he collected any sum due and owing other attorneys then employed by Craig. In other words, this is a simple case of a contingent promise by Gardner to pay any sum Craig owed to other attorneys, in addition to the performance of legal services, in return for Craig’s promise to pay Gardner 40 percent of any recovery effected on the accidents after trial.

IV.

We see no need to remand this case, which has already been in the courts a long time, for a hearing to determine the reasonable value of Hill’s services to Craig for the period from the date of original employment, December 18, 1971 to date of discharge July 30, 1973, if we can take care of the matter here.

We are ourselves experts on the question of attorney’s fees, Agnew v. Johnson, 352 Mo. 222, 176 S.W.2d 489, 493-94; Cascio v. Cascio, 485 S.W.2d 857, 861 (Mo.App.1972); Columbian Nat. Life Ins. Co. v. Keyes, 138 F.2d 382 (8th Cir. 1943), cert. denied, 321 U.S. 765, 64 S.Ct. 521, 88 L.Ed. 1061 (1944), and we have by our rule 4, DR 2-106(B) set forth the factors to be considered in determining the reasonableness of a fee.

While we do not know how many hours Mr. Hill or his associate spent on the case, it has been held that time taken to perform the services is only one element considered and is ordinarily of minor importance, Scott v. Home Mut. Tel. Co., 510 S.W.2d 793, 795 (Mo.App.1974), and we do know what Hill and his associate did in the matter and the result accomplished. The federal Employers Liability Act has a relatively short statute of limitations — three years — and one thing which Hill accomplished was to file a petition which unquestionably stopped the statute of limitations from running. Therefore, although 19 months elapsed without much being done toward preparing for trial during the time Hill was in charge of the case, Craig did not have to fear that his law suit would be barred by procrastination in filing suit. Hill’s associate, Wilson, answered interrogatories served by the railroad, a necessity in keeping Craig’s suit alive. He also filed interrogatories for Craig directed to the railroad. The information obtained therefrom does not appear in the record. We repeat what we said earlier as to what Wilson did: Wilson obtained medical reports from two doctors. None was of recent vintage. It is not clear from the record how complete these reports were or what use was made of them. One was from the treating physician. Wilson talked with him on the telephone, but did not feel it necessary to meet with him. Wilson made a settlement proposition to the railroad, to which there was no response. Wilson resisted, but lost, a motion to produce Craig’s income tax returns. He reached an agreement with the railroad, following filing of injunction action, that Craig need not file a medical report for each day he was unable to complete his shift because of his injuries. The details of this aspect of the case do not appear clearly in the record. It apparently was directed more at Craig’s being permitted to work part time than toward preparation for trial of disposition of his action for damages. Hill and Wilson also handled a medical benefits claim for Craig against Travelers Insurance Company, obtaining a $650.00 settlement, for which they received a fee of $200.00. Neither Hill nor Wilson did any of the trial work in the case against the railroad and it is fair to say they did little of the essential trial preparations.

All in all, we believe a fee of $1,500.00 is reasonable and fix the fee of Hill and Wilson at that amount plus whatever interest has been earned on said amount by investment.

V.

Gardner claims that Craig assigned his right to raise the constitutional validity of 45 U.S.C., § 362(o) (1976), as well as the right to recover sickness benefits if such section is unconstitutional, to him. The only evidence of this, however, is the following statement in Gardner’s brief:

“During pendency of appeal and before filing of transcript there was a settlement of all claims between Jo B. Gardner, Inc., and William E. Craig and as part of said settlement it is provided:
‘The undersigned further agree that William E. Craig, Jo B. Gardner or Jo B. Gardner, Inc. will have the right to raise in their own or the others names the invalidity of the Federal Statute (45 U.S. C.A., Sec. 362(o)) for repayment of sickness benefits and that any recovery thereunder for fees and expenses will inure to the sole benefit of Jo B. Gardner, Inc.’ ”

We note, first, that the purported assignment involved only an attempt to assign to Gardner Craig’s right to raise the invalidity of the federal statutes for repayment of sickness benefits and the right to recover fees and expenses recovered if § 362(o) is found invalid. It does not purport to assign the sickness benefits per se, if it is found, as alleged, that payment to the Board violates the 14th Amendment. Secondly, we note that proof of the assignment cannot be made by a simple statement in the brief that assignment has been effected, Slivka v. Hackley, 418 S.W.2d 89 (Mo.1967); Commercial Credit Equipment Corp. v. Colley, 485 S.W.2d 625 (Mo.App.1972), absent concession thereof by the opposing party. Natasio v. Cinnamon, 295 S.W.2d 117 (Mo.1956); Hammack v. White, 464 S.W.2d 520 (Mo.App.1971); Avalon Development Co. v. American Italian Const, and Development Co., 437 S.W.2d 702 (Mo.App.1969).

Gardner has made no attempt to supplement the record to show proof of assignment, which is alleged to have occurred prior to the filing of the transcript in this court, or otherwise to show proof of assignment in the record. Accordingly, we cannot consider any claims which Gardner would have standing to raise only if the assignment were of record, for there is no proof of the assignment before this court. Rawlings v. Taylor, 477 S.W.2d 737 (Mo.App.1972). See rule 81.12.

However, Gardner makes a claim in his own right that he was deprived of his property without due process of law in that under § 363(o), supra, the United States Railroad Retirement Board is entitled to a lien on any sums collected by the injured employee Craig, from the tortfeasor, in reimbursement for and up to the amount of any sums paid or payable to Craig, without concurrent liability for part of the attorneys fees expended in recovering the judgment against the third party. Gardner has failed to allege any injury to him as a result of this argument. He makes no claim that he has not received his fee or was otherwise aggrieved, and thus has no right to appeal under § 512.020, RSMo 1969, or standing to raise the constitutionality of the statute. See Ewing v. City of Springfield, 449 S.W.2d 681, 688 (Mo.App.1970); State v. Mucie, 448 S.W.2d 879 (Mo.1970), cert. denied, 398 U.S. 938, 90 S.Ct. 1842,. 26 L.Ed.2d 271 (1970); Kansas City v. Douglas, 473 S.W.2d 101, 102 (Mo.1971). Compare Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Ryder v. County of St. Charles, 552 S.W.2d 705, 707-08 (Mo. banc 1977).

VI.

To summarize: Hill is entitled to judgment of $1,500.00 plus interest earned from investment of said sum. Gardner is entitled to judgment for the balance of whatever remains of the $5,200.00 and interest earned after deducting the amount due Hill. The costs of this appeal are ordered assessed against Hill and Gardner equally.

The judgment is reversed and the cause remanded for entry of judgment in accordance with this opinion.

BARDGETT, C. J., RENDLEN and MORGAN, JJ., and STOCKARD, Special Judge, and FINCH, Senior Judge, concur.

DONNELLY, J., not sitting.

WELLIYER and HIGGINS, JJ., not participating because not members of the court when cause was submitted.

      . As it turns out, the constitutional issue is not reached, see infra.

      . The contract makes no mention of employment with respect to the accident and injuries of September 14, 1971.

      . Whatever interest Wilson has comes through being an associate of Hill. Wilson had no contract with Craig at any time.

      . Mr. Hill was admitted to the Missouri Bar in 1936. Mr. Wilson was admitted in 1965. Mr. Gardner was admitted in 1936.

      . The case was tried in Kansas City. The trial lasted two or three days. The railroad defended on the ground that the alleged accidents did not take place and that, in any event, Craig was not injured.

      . Failure to adhere to a railroad safety rule is evidence of negligence. Renaldi v. New York, New Haven & Hartford Rds. Co., 230 F.2d 841, 844 (2d Cir. 1956); J. Dooley, Modern Tort Law, Vol. 1, § 3.29 at 58; § 28.12 at 141 (1977); Ann. 50 A.L.R.2d 16 (1956).

      . That this is not necessarily a correct assumption for a plaintiff can be seen by examining the annotations found in 45 U.S.C.A., § 51. This would be particularly true, where, as here, the railroad was defending on the ground the accidents did not actually happen, and that even if they did, plaintiff suffered no injury.

      . “Every railroad case, whether it be an employee or nonemployee action, should be studied, examined, and dissected, to determine whether there is a possible Safety Appliance Act violation.” Dooley, supra, note 6, Vol. 2 at 190.

      . In his reply brief, Gardner states that if the assignment is not properly before this court, we should “let Craig have it back” and they will settle things between themselves. Craig has not appealed from the decision of the circuit court or asked to assert these constitutional claims. We have no authority to address them as if he had.

      . Gardner’s fee was $8,320.00, which is 40 percent of the judgment, as agreed. The $2,514.60 allowed the Board came out of Craig’s share, not Gardner’s.


source: Caselaw Access Project

author: WELLIVER, Judge.

license: Public Domain

text:
    Herman and Alan ARONSTEIN, Appellants, v. MISSOURI STATE HIGHWAY COMMISSION, Respondent.
    No. 60998.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1979.
    Rehearing Denied Oct. 10, 1979.
    Charles C. Shafer, Jr., Kansas City, for appellants.
    Bruce A. Ring, Chief Counsel, Jefferson City, Earl H. Schrader, Jr., James B. Jackson, Asst. Counsel, Mo. State Hwy. Comm., Kansas City, for respondent.
   WELLIVER, Judge.

This case is a direct appeal from a summary judgment entered August 15, 1978, in the Sixteenth Judicial Circuit Court. Appellants seek to recover compensation for alleged damage to property located near the site of a proposed freeway. This court has jurisdiction because the case involves construction of Mo.Const. art. I, § 26. Hamer v. State Highway Commission, 304 S.W.2d 869, 870 (Mo.1957). The case arises out of the proposal to construct a north-south “Midtown Freeway” in Kansas City, Missouri. Plans for the freeway were made in the 1950’s and respondent State Highway Commission began condemnation proceedings along the route of the proposed freeway in 1968. Between 1968 and 1973, respondent purchased and demolished numerous buildings within the proposed Midtown Freeway “corridor”, but at the time this suit was filed respondent had not purchased all of the property required for the project. Respondent had not begun construction of the freeway. In 1973, a federal district court enjoined respondent from acquiring additional property within the freeway corridor pending resolution of a class action suit alleging federal violations, including the failure to provide an adequate environmental impact statement. The Citizens Environmental Council v. Brinegar, No. 73-349 (W.D.Mo., filed June 21, 1973).

Appellants reside at 6811 Chestnut, Kansas City, Missouri. Appellants’ house is on the east side of Chestnut. The proposed freeway would be on the west side of the street. Appellants originally commenced an inverse condemnation action in federal district court, alleging a taking prohibited under the Fifth Amendment of the United States Constitution. That action was dismissed on January 26, 1976, .on the ground that there was no direct invasion of appellants’ property rights. Appellants then brought this action in the state circuit court, alleging that respondent had “taken or damaged” their property in violation of Mo.Const. art. I, § 26. Appellants allege that delay in the construction of the Midtown Freeway has depressed the market value of their residence by half, or approximately $15,000. Appellants seek to represent a class of persons “similarly situated by reason of their ownership of real estate either in, immediately adjacent to, facing, or along the route of the proposed Midtown Freeway,” and claim aggregate damages for the class in excess of five million dollars. The parties agreed before the trial court that the property owned by appellants is located outside of, although in close proximity to, the corridor to be condemned. Based upon the pleadings and the stipulation that appellants’ property was located outside of the freeway corridor, the trial court found that there remained no genuine issue of law or disputed material fact and granted respondent’s motion for summary judgment. The court did not rule on certification of the alleged class.

We affirm the trial court’s action in granting the summary judgment.

Article I, § 26 of the Missouri Constitution provides “[t]hat private property shall not be taken or damaged for public use without just compensation.” Appellants contend that respondent’s unreasonable delay in completing the Midtown Freeway has caused a decrease in the market value of their real property. We are called upon to determine whether such diminution in value comes within the ambit of Mo.Const. art. I, § 26.

A similar question was presented in Van de Vere v. Kansas City, 107 Mo. 83, 17 S.W. 695 (1891). In Van de Vere, the plaintiff owned lots adjoining a site on which the city had begun to construct a fire station. The plaintiff sought an injunction and compensation for a projected decrease of 35 to 50 percent in the value of his property. The court acknowledged that the words “or damaged” had not appeared in the Missouri Constitution prior to 1875 and that the outcome of the case depended upon the court’s determination of the meaning of the added words. The court stated that the change in wording “must be construed and applied in view of the evils which it was designed to remedy,” id. at 91, 17 S.W. at 697. The court examined earlier cases that had given a restrictive meaning to the words “taken” and “property”. The court determined “that the old line of decisions overlooked the fact that an easement or incorporeal right annexed to land — as that of ingress and egress, and light — is as much property as the right to the land itself, and that the various constitutional amendments were designed to protect these rights.” Id. at 90, 17 S.W. at 697. The court adopted the rule that a plaintiff who alleges that his property has been damaged for public use “must show that the property itself, or some right or easement connected therewith, is directly affected, and that it is specially affected.” Id. at 91, 17 S.W. at 697. The court held that the plaintiff was not entitled to an injunction against the construction of the fire station, nor to compensation, because he failed to show that a right connected with his property was directly and specially affected. The requirement of direct and special injury to a property right has frequently been reaffirmed in decisions of this court. Wells v. State Highway Commission, 503 S.W.2d 689, 691 (Mo.1973); Marvin E. Nieberg Real Estate Co. v. St. Louis County, 488 S.W.2d 626, 629 (Mo.1973); Hamer v. State Highway Commission, 304 S.W.2d 869, 871 (Mo.1957); State ex rel. City of St. Louis v. Beck, 333 Mo. 1118, 63 S.W.2d 814, 815 (1933); Peters v. Buckner, 288 Mo. 618, 637, 232 S.W. 1024, 1029 (banc 1921) (Graves, J., concurring); Nagel v. Lindell Ry., 167 Mo. 89, 98, 66 S.W. 1090, 1092 (1902); Ruckert v. Grand Ave. Ry., 163 Mo. 260, 278, 63 S.W. 814, 819 (1901); Funke v. City of St. Louis, 122 Mo. 132, 139, 26 S.W. 1034, 1036 (1894).

Appellants in this case have failed to allege or show that any right connected with their property is directly affected, or that any injuries they have suffered are “special” in the sense of being “different in kind, and not merely in degree, from those suffered by other members of the community.” Nagel, 167 Mo. at 98, 66 S.W. at 1092; Ruckert, 163 Mo. at 278, 63 S.W. at 819; Van de Vere, 107 Mo. at 89-90, 17 S.W. at 697. Appellants do not allege a physical invasion of their property, and stated in court that their property was outside the corridor of property to be taken. They allege no deprivation of a right of access to their residence. Appellants do not allege that respondent has taken an easement or invaded any incorporeal right attached to their land. Any inconvenience or annoyance which the appellants allege they have suffered or expect to suffer in the future is not different in kind from that sustained by members of the public generally. On the facts alleged, appellants’ property has not been “damaged for public use” within the meaning of Mo.Const. art. I, § 26.

In each of the cases cited by appellants involving recovery by an abutting landowner, the landowner claimed injury to property that was distinct from that suffered by the general public. These cases do not support appellants’ claim for compensation in the absence of such special injury.

Other cases cited by appellants do not support their claim that “condemnation blight” is compensible in Missouri. Land Clearance for Redevelopment Authority v. Massood, 526 S.W.2d 354, 357 (Mo.App.1975) recognized that “the threat of condemnation proceedings is not an element of damages for a taking in condemnation,” citing State ex rel. State Highway Commission v. Samborski, 463 S.W.2d 896, 902-03 (Mo. 1971); St. Louis Housing Authority v. Barnes, 375 S.W.2d 144, 147 (Mo.1964); State ex rel. City of St. Louis v. Beck, 333 Mo. 1118, 63 S.W.2d 814, 817 (banc 1933). Massood criticized as anachronistic Missouri’s adherence to the rule that the date of valuation in condemnation should not be earlier than the date the condemnor takes title or possession, and suggested that recognition of the notion of “condemnation blight” might ease whatever hardship results to the condemnee from a “grossly premature announcement of condemnation.” 526 S.W.2d at 357-58. This is not an appropriate case to address the problem posed in Massood, because appellants here concede that their property is not among those properties which respondent intends to condemn. Similarly, Flopping v. City of Whittier, 8 Cal.3d 39, 104 Cal.Rptr. 1, 500 P.2d 1345 (banc 1972), and Washington Market Enterprises v. City of Trenton, 68 N.J. 107, 343 A.2d 408 (1975), do not support appellants’ claim for recovery, because those cases involved land which the respective cities planned to condemn.

The trial court did not err in granting summary judgment. The judgment is affirmed.

BARDGETT, C. J., DONNELLY, REND-LEN, SEILER and MORGAN, JJ., and WELBORN, Special Judge, concur.

HIGGINS, J., not participating because not a member of the court when cause was submitted.

      . Behlman v. City of Florissant, 548 S.W.2d 619 (Mo.App.1977) (damage to abutting land resulting from raise in grade level of street two to four feet; substantial evidence that grade change prevented surface water drainage, with loss of trees and shrubbery and seepage of water into basements, and caused plaintiffs difficulty entering and leaving their driveways); Missouri Pub. Serv. Co. v. Garrison, 454 S.W.2d 628 (Mo.App.1969) (power line easement 'A mile long taken across defendant’s farm property); Lange v. City of Jackson, 440 S.W.2d 758 (Mo.App.1969) (raise in grade level of street four to six feet, rendering plaintiffs driveway unusable); State ex rel. State Highway Comm’n v. King Bros. Motel, 388 S.W.2d 522 (Mo.App.1965) (condemnation of land for widened highway, new access ramp, and outer roadway, where condemnee’s house was the only one subjected to glare of traffic headlights on outer roadway); State ex rel. State Highway Comm’n v. Brockfeid, 378 S.W.2d 254 (Mo. App.1964) (loss of easement of access to highway with construction of limited access highway); Lewis v. City of Potosí, 317 S.W.2d 623 (Mo.App.1958) (discharge of sewage from city lagoon into creek crossing plaintiffs farmland, allegedly causing illness in livestock).


author: WELLIVER, Judge. SEILER, Judge,

text:
    STATE of Missouri ex rel. William R. TAYLOR, Relator, v. LAND CLEARANCE FOR REDEVELOPMENT AUTHORITY OF KANSAS CITY, Missouri, a public corporation under the laws of Missouri, Respondent.
    No. 61220.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1979.
    Rehearing Denied Oct. 10, 1979.
    Wm. B. Morgan, Campbell, Gilmore, Erickson, Cottingham, Morgan & Gibson, Kansas City, for relator.
    Lawrence M. Berkowitz, Judson L. Palmer, Jr., James S. Allen, Jr., Stinson, Mag & Fizzell, Thomas W. Tierney, Tierney, Pierce & Ernst, Kansas City, for respondent.
    W. Scott Snyder, Columbia, Irvin Dagen, St. Louis, Howard C. Wright, Jr., Springfield, amicus curiae.
   WELLIVER, Judge.

This is an original information in the nature of quo warranto. It is filed by relator William R. Taylor with the approval of the Attorney General to test the authority of respondent Land Clearance for Redevelopment Authority of Kansas City, hereinafter referred to as “LCRA”, to issue Mortgage Revenue Bonds and Housing Revenue Bonds. The relator is an individual resident, registered voter and taxpayer residing at 9 West 125th Terrace in Kansas City, Missouri, and respondent LCRA is a public corporation organized and existing pursuant to the provisions of §§ 99.300 to 99.660, RSMo 1978.

The information filed by relator challenges the statutory authority for and the legality and constitutionality of respondent’s actions taken in the process of attempting to issue fifteen million dollars of bonds. We find and hold that respondent has exceeded its statutory authority in attempting to issue these Mortgage and Housing Revenue Bonds.

The facts are stipulated or admitted in pleadings. Respondent LCRA of Kansas City, Missouri, has adopted resolutions and is taking actions to issue and sell its Mortgage Revenue Bonds and its Housing Revenue Bonds (collectively, the “Bonds”). The Bonds will not be payable from funds raised by taxation. It is intended that interest on the Bonds will be exempt from federal income taxation.

The proceeds of the sale of the Mortgage Revenue Bonds are intended to be used to make loans to individuals (the “Mortgagors”) who will either be occupiers, developers, or landlord-owners of single-family or two-to-four-family residences in Kansas City, Missouri. Landlords need not reside in the mortgaged premises. Respondent intends to make some loans “involving mortgagors of moderate and high income levels.” It intends “to finance some mortgages without limitation to the maximum amount of the loan or the maximum value of the property”. Respondent intends to contract with other persons who will service some of the mortgage loans by collecting and appropriately applying monthly payments from the Mortgagors and enforcing the terms of the mortgage loans. The proceeds of the sale of the Housing Revenue Bonds would be used to make loans to private lenders (the “Lenders”) who will make loans to Mortgagors.

It is intended that the tax-exempt interest on the bonds will permit respondent to make available loans to the Mortgagors and Lenders at lower rates of interest than conventional market rates, thereby reducing the principal and interest payments of the Mortgagors. The Mortgagors would be required to use the proceeds of the mortgage loans for the purchase, construction or rehabilitation of residential units. These residential units must be located on land necessary or incidental to the respondent’s land clearance or urban renewal projects. Respondent intends to exercise its own discretion with respect-to whether a particular property is “incidental” to a land clearance or urban renewal project.

Respondent would pledge an appropriate portion of the collective monthly payments from the Mortgagors or the Lenders to pay principal and interest due on the Mortgage Revenue Bonds or the Housing Revenue Bonds, respectively. Each mortgage loan made from the proceeds of the Mortgage Revenue Bonds would be required to be insured or guaranteed and the proceeds of such insurance and guarantees along with reserves would also be pledged to the owners of the Mortgage Revenue Bonds. The Housing Revenue Bonds would be secured by securities guaranteed by the Government National Mortgage Association.

Respondent contends that statutory authorization for issuance of these Bonds can be inferred from any of the following statutory provisions.

(1) § 99.480.1 gives the Authority the power to issue bonds “for any of its corporate purposes.”

(2) § 99.420.4 gives the Authority power “to prevent a recurrence of blighted or insanitary areas or to effectuate the purposes of this law” and the power to issue these Bonds can be inferred therefrom.

(3) § 99.420.14 grants the power “[t]o exercise all powers or parts or combinations of powers necessary, convenient or appropriate to undertake and carry out land clearance, redevelopment and urban renewal plans and projects and all the powers herein granted.” \

(4) § 99.420.4 uses the word “develop”.

(5) § 99.320.16 defines “real property” for the purposes of the act to include “liens by way of judgment, mortgage or otherwise and the indebtedness secured by such liens.”

(6) § 99.650 provides that “[t]his law shall be construed liberally to effectuate the purposes hereof. Insofar as the provisions of this law are inconsistent with the provisions of any other law, the provisions of this law shall be controlling.”

Respondent then alleges that there is a proper public purpose for its actions in issuing the Bonds, that the Bonds are constitutional under Article VI, Sections 23 and 25 of the Constitution, and that servicing of mortgage loans would not be an unlawful delegation of powers by the LCRA.

The Land Clearance for Redevelopment Authorities of Columbia, Springfield and St. Louis have filed briefs amici curiae in support of respondent’s asserted authority to issue the Bonds.

Relator urges that the actions and intended actions of the respondent are not within its statutory grant of power. Relator quotes the following language from Taylor v. Dimmitt, 336 Mo. 330, 336, 78 S.W.2d 841, 843 (1934):

It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: (1) Those granted in express words; (2) those necessarily or fairly implied in, or incident to, the powers expressly granted; (3) those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied.

In State ex rel. Mitchell v. City of Sikeston, 555 S.W.2d 281, 288 (Mo. banc 1977), this court reaffirmed the principle that a municipal corporation has only the powers granted to it by the legislature.

To address the question of statutory construction presented, it is helpful to look at the historical development of housing legislation in this and other states. Respondent Authority was created by, and derives its powers from the Land Clearance for Redevelopment Authority Law, hereinafter referred to as the “LCRA Law”, §§ 99.300 to 99.660, RSMo 1978, first enacted in 1951. The LCRA Law is typical of redevelopment authority statutes passed in many states, primarily in the decade following World War II. Such urban redevelopment authorities are commonly authorized to issue revenue bonds to finance projects involving the clearance and redevelopment of blighted and insanitary areas. These statutes commonly empower the redevelopment authorities to acquire property and to pay off liens and encumbrances existing on such property for that purpose. The introductory clause of § 99.420 expressly provides that the powers enumerated therein are those necessary or convenient to carry out the purposes of the LCRA Law, and respondent’s powers must be construed in the light of those purposes. This court considered the purposes of the LCRA Law in State on Inf. of Dalton v. Land Clearance for Redevelopment Authority, 364 Mo. 974, 270 S.W.2d 44 (1954). In Dalton, relator challenged the validity of the LCRA Law on the ground that it violated Mo.Const. art. Ill, § 23, which provides that “[n]o bill shall contain more than one subject which shall be clearly expressed in its title.” The court denied this contention, stating that “[t]he Law here in question deals with one general subject matter and has one purpose: the eradication and redevelopment of blighted and insanitary areas.” Id. 270 S.W.2d at 54.

In the late 1960’s a number of states began to enact legislation to slow the acceleration of urban deterioration caused by shortages in certain neighborhoods of mortgage capital. The legislatures focused attention on practices of private commercial lending institutions of “redlining,” /. e., refusing to grant mortgages and home improvement loans in deteriorating urban neighborhoods. The diversion of investment capital from depositors in redlined neighborhoods to borrowers in other areas is known as disinvestment. The practice developed because such investments are less secure than loans for property elsewhere. The lack of incentive for absentee landlords and real estate speculators to invest funds to maintain buildings is seen as exacerbating the deterioration process. Hearings on S. 1281 before the Senate Committee on Banking, Housing and Urban Affairs, 94 Cong., 1st Sess., pt. 1 at 551-54 (1975) (report by Sternlieb, Burchell & Listokin). The common legislative response to the problem of housing shortages caused by a shortage of mortgage financing was to create a statewide housing finance authority. Most of the housing finance authority statutes concentrate the power to lend money to buyers of homes in a centralized finance agency. The lending power is circumscribed by numerous restrictions. Most such agencies are authorized to make loans only for residential housing and only to low to moderate income borrowers. Frequently such loans may be made only after an administrative determination that they are unavailable from private commercial lenders. Other limitations have been placed on the permissible amount of individual loans and on the aggregate indebtedness that the agency is permitted to incur.

Missouri’s Housing Development Commission Act of 1969, §§ 215.010 to 215.250, RSMo 1978 represents our General Assembly’s response to the general problems of financing of low cost housing and the related problems of disinvestment and redlining of neighborhoods by commercial mortgage lenders. It empowers the Housing Development Commission to issue revenue bonds to raise funds to “make, purchase or participate in the purchase of uninsured, partially insured or fully insured first mortgage loans ... to finance the building or rehabilitation of residential housing” for low or moderate income persons. § 215.-030.1. Unlike the LCRA Law, the Housing Development Commission Act provides for the centralization of delegated powers in a single state agency. § 215.020. The Commission’s power to purchase and insure first mortgage loans is limited to loans for residential housing, and only loans to low to moderate income borrowers are authorized. § 215.030.1 and .2. The power of the Commission to make construction loans is limited to federally insured loans to sponsors of residential housing for occupancy by persons and families of low to moderate income. § 215.030.3. Construction loans are further required to “be made only upon determination by the commission that construction loans are not otherwise available, wholly or in part, from lenders upon reasonably equivalent terms and conditions.” Id. Originally, the Housing Development Commission was authorized to issue no more than $100 million in bonds, but this was raised in 1974 to $200 million of bonding authority. § 215.160, RSMo 1978; Laws of Mo.1969, p. 362; Laws of Mo.1974, pp. 826-27.

We are persuaded that the LCRA Law does not explicitly extend the power to the respondent to act as a mortgage lender, nor is such power fairly implied in or incident to powers expressly granted in the statute, nor is such power essential or indispensable to attaining the purposes expressed in the statute. No case has been cited to or found by this court in which this or any other state has construed the language of its LCRA Law to include the authority to issue revenue bonds to become a mortgage lender as respondent proposes to do. The provision in § 99.650 that the LCRA Law should be liberally construed to effectuate its purposes and the provision in § 99.420.14 granting all necessary and appropriate powers for attainment of the purposes of the law, place no obligation on this court to infer new and additional purposes over and beyond those purposes originally contemplated by the legislature. Respondent’s argument that its authority to “develop” buildings in carrying out its statutory purpose “includes providing financing for the ultimate purchaser” severs the word from context and attributes to it a sense that is far removed from the meaning of the term in the series in which it appears. We find no merit in respondent’s contention that the difference in wording between the grants of power in the LCRA Law and the grants of power in the Housing Development Commission Act represents only an evolution in the General Assembly’s writing style over the eighteen years that elapsed between the passage of the two statutes.

Historically, housing finance laws have followed and supplemented the LCRA Laws of the various states.

We find no state which has by judicial interpretation read into its LCRA Law, the mortgage financing powers herein sought to be established by respondent. We find no special provisions distinguishing the Missouri LCRA Law in this respect and from which we can infer the alleged power to issue revenue bonds and engage in mortgage financing. For the reasons stated, we find and hold that respondent, LCRA of Kansas City, has exceeded its statutory authority in attempting to issue its Mortgage Revenue Bonds and Housing Revenue Bonds.

Having found the lack of statutory authority to act, we find it unnecessary to address the constitutional questions briefed by the parties. The requested ouster is granted and judgment is entered in favor of relator.

DONNELLY, RENDLEN and MORGAN, JJ., and HENLEY, Senior Judge, concur.

SEILER, J., dissents in separate dissenting opinion filed.

BARDGETT, C. J., dissents and concurs in separate dissenting opinion of SEILER, J.

HIGGINS, J., not participating because not a member of the court when cause was submitted.

SEILER, Judge,

dissenting.

I must respectfully dissent. I am unable to believe that we should interpret the statutory provisions before us according to language quoted in the principal opinion from Taylor v. Dimmitt, 336 Mo. 330, 78 S.W.2d 841, 843 (1934), whereby the Land Clearance for Redevelopment Authority has only such powers as remain after resolving any reasonable doubts as to the existence of power against the corporation. I say this because the statute before us contains in its body the construction which is to be placed upon it and it seems to me that we are bound by such declaration on the part of the lawmakers. I refer to § 99.650, which contains the following sentence: “This law shall be construed liberally to effectuate the purposes hereof.” Where a rule of construction is contained in the statute itself, that rule should be applied if it is necessary to use any rules of construction in determining the meaning or effect of the law. State ex rel. Triay v. Burr, 79 Fla. 290, 84 So. 61, 74 (1920). See also, 82 C.J.S. Statutes § 315, as follows: “The legislature may define certain words used in the statute, or declare in the body of the Act, the construction to be placed thereon, and the court is bound by such definition or construction, and will apply it although otherwise the language would have been construed to mean a thing different from that contemplated by such . . . rule of construction.”

The principal opinion refers to State ex rel. Mitchell v. City of Sikeston, 555 S.W.2d 281, 288 (Mo. banc 1977). There the court quoted the same language from Taylor v. Dimmitt relied upon here, but the Sikeston case was dealing with § 91.010, RSMo 1969, which authorizes municipalities to purchase power from vendor cities and which contains no language about how it shall be construed, unlike the statutes before us. In addition, the court in City of Sikeston distinguished Taylor v. Dimmitt upon its facts, pointing out there were two statutes there involved, both dealing directly with municipalities and the only question before the court was whether these statutes authorized the vendor municipality to erect transmission facilities outside the city. The court pointed out that the second of the two statutes explicitly gave this authority to the purchasing municipality, thus evidencing a desire on the part of the legislature to preclude vendor municipalities from the field. Assuming that a Land Clearance for Redevelopment Authority is to be considered the same as a municipal corporation in determining what powers it can exercise, I do not believe City of Sikeston supports the narrow interpretation of powers used in the principal opinion, despite its reference to Taylor v. Dimmitt.

One of the exhibits before us is exhibit D, the urban renewal map for Kansas City, Missouri. There are some 17 areas designated for urban renewal activity in Kansas City. Some of these areas are quite extensive, covering hundreds of city blocks. Each proposed area has received the approval of the Kansas City city council.

There is more to successful urban renewal than the leveling of structures in slum areas and the clearing of the land. The area must then be put to some constructive use. Section 99.310, which states the legislative declaration as to the purpose of the law, makes it clear that the construction of housing, not merely the razing of slum or delapidated areas, is the final objective of the Act. One of the ways to do this is to make money available to developers, builders, and owners.

As is suggested in one of the amici briefs, inflation makes it more and more difficult to build new or renovate older family residences and to attract the necessary mortgage funds for inner city residential neighborhoods. One incentive would be a lower mortgage interest rate which can be achieved by use of the proposed bonds. Counsel suggests, and I believe accurately, that “[i]f ever there was a need which has • caught up with the intent of the law, it is in the present instance, wherein the Respondent contemplates the utilization of the Redevelopment Act for the issuance of its mortgage bonds for home renovation and construction.”

Section 99.480 gives the authority the power to issue bonds. It states:

“(1) An authority shall have the power to issue bonds from time to time in its discretion for any of its corporate purposes including the payment of principal and interest .
“(3) An authority may issue such types of bonds as it may determine, including (without limiting the generality of the foregoing) bonds on which the principal and interest are payable: [from proceeds of the projects whether or not that project was financed by the bonds].” (emphasis added)

From this, given the liberal construction provision in particular, it appears that the authority is given discretion to issue any type of bond it finds appropriate to effectuate any of its corporate purposes. Thus, it would seem that bonds to finance mortgages and loans to lenders should be proper if they effectuate a corporate purpose.

The question then becomes, what are the authority’s corporate purposes? If this refers to the declaration of policy in § 99.310, then that section must be analyzed. Indeed, the principal opinion points out that respondent’s powers must be construed in the light of those purposes. That section sets out the evils of unsafe and insanitary housing and housing areas, and says that unsafe conditions, etc., are beyond control by conventional methods and: “that the elimination or prevention of the detrimental conditions in such areas, the acquisition and preparation of land in or necessary to the development, renewal or rehabilitation of such areas and its sale or lease for development, renewal or rehabilitation in accordance with general plans and redevelopment or urban renewal plans of communities and any assistance which may be given any public body in connection therewith are public uses and purposes for which public money may be expended and private property acquired” and that certain areas may be beyond help and need to be cleared, but, where possible, rehabilitation shall be used. It concludes that a municipality shall, to the greatest extent feasible in carrying out this law, “afford maximum opportunity, consistent with the sound needs of the municipality as a whole, to the rehabilitation or redevelopment or renewal of areas by private enterprise.”

Thus, the policy provisions state that the purpose of the law is to end blight through clearance and redevelopment, with a preference toward redevelopment through rehabilitation and through the use of private enterprise. What more appropriate method of carrying this purpose out than through a bond issue which enables the authority to make loans to individuals for mortgages for redeveloping one-to-four-family residences, and through loans to private lenders who will in turn make loans to individual mortgagors? The latter will allow maximum involvement from private enterprise within the confines of the purposes of the Act to remove blight and to redevelop.

If “corporate purposes” in § 99.480 refers to more specific corporate powers, then § 99.420, defining corporate powers (as opposed to policy) becomes relevant. The section begins: “An authority shall constitute a public body corporate and politic, exercising public and essential governmental functions, and having all powers necessary or convenient to carry out and effectuate the purposes and provisions of this law, including the following powers in addition to others herein granted.”

The final subsection of § 99.420 states: “(14) To exercise all powers or parts or combinations of powers necessary, convenient or appropriate to undertake and carry out land clearance, redevelopment and urban renewal plans and projects and all powers herein granted.”

Thus the bond power could properly be combined with some other powers set out in § 99.420 to help carry out the purposes of land clearance and redevelopment.

Section 99.420(4) states: “Within its area of operation [the authority shall have the power] to purchase, lease, obtain options upon, acquire . . . any real or personal property or any interest therein . necessary or incidental to a land clearance project or urban renewal project; to hold, improve, clear or prepare for redevelopment or urban renewal any such property; to develop, construct, reconstruct, rehabilitate, repair or improve residences, houses, buildings, structures and other facilities . to enter into contracts with redevelopers of property . . . regarding the use of such property for residential, commercial, industrial, recreational purposes or for public purposes . . . .”

“Land clearance project” is defined by § 99.320(10)(d) as “any work or undertaking: ” “[t]o develop, construct, reconstruct, rehabilitate, repair or improve residences, houses, buildings, structures and other facilities.”

A “redeveloper” is defined by § 99.320(17) as “any person, partnership, or public or private corporation or agency which enters or proposes to enter into a redevelopment or rehabilitation or renewal contract.”

Subsection (16), § 99.320 defines real property to include “liens by way of . mortgage.” Thus, the authority can acquire mortgages, and can hold, improve, or prepare for redevelopment such property: that is, it can use the mortgages to help in redevelopment. This is exactly what both the proposed mortgage revenue bonds and housing revenue bonds will ultimately do, and it seems to me the Act, reasonably construed, authorizes their issuance.

The principal opinion refers to the Housing Development Commission Act of 1969 as representing the legislature’s response to the general problems of financing of low cost housing and the related problems of redlining of neighborhoods by commercial mortgage lenders. However, I fail to see how this later statute controls what the proper interpretation should be of the much earlier adopted Land Clearance for Redevelopment Law. Particularly is this true in light of the express provision at the close of § 99.420(4) of the Land Clearance Act “that no statutory provision with respect to the acquisition, clearance or disposition of property by other public bodies shall restrict an authority or other public bodies exercising powers hereunder, in such functions, unless the legislature shall specifically so state.” I do not believe that the Housing Development Commission Act contains any such restriction or that it can be regarded as preempting or excluding power of the authority to issue the bonds under consideration.

The principal opinion mentions that the authority says that it may finance some loans or real property located outside the urban renewal projects but within the city limits of Kansas City, which the authority considers incidental to a specific land clearance or urban renewal project. If the development is “incidental” to a project, then it is associated, related, linked or connected with the project. It seems to me that is sufficient to keep the authority within proper bounds in this respect. If a case arises where this is not true, the matter can be dealt with accordingly from time to time as needed. I do not believe the fact that the authority has in mind such incidental matters means that the issuance of the bonds under consideration is beyond the powers of the authority.

I fear that for us to turn down what seems to be a highly practical and legally permissible means of developing urban renewal areas would be to strike a crippling blow at the Land Clearance for Redevelopment authority and would be contrary to the intention of the legislature as to what such an authority may do. I therefore would uphold the issuance of the bonds by the authority and for these reasons I dissent.

      . Among these are Alaska’s City Housing Law of 1935, Alaska Stat. §§ 18.55.480 to 18.55.996 (1978); California’s Limited Dividend Housing Corporations Law of 1951, Cal. Health and Safety Code §§ 34800 to 34948 (1973); Colorado City Housing Law of 1935, Colo.Rev.Stat. §§ 29-4-101 to 29-4-123 (1977); Georgia’s Housing Authorities Law of 1937, Ga.Code Ann. §§ 99-1101 to 99-1170 (1976); Iowa’s Urban Renewal Law of 1957, Iowa Code Ann. §§ 403.1 to 403.18 (West 1976); Maine Housing Authorities Act of 1954, Me.Rev.Stat. tit. 30, §§ 4551 to 4788 (1978); Michigan’s municipal rehabilitation legislation of 1945, Mich.Stat. Ann. §§ 125.71 to 125.84 (1976); Minnesota’s Municipal Housing and Redevelopment Act of 1947, Minn.Stat.Ann. §§ 462.411 et seq. (West 1962); Montana’s Housing Authorities Law of 1935, Mont.Rev.Codes Ann. §§ 35-101 to 35-146 (1961); North Carolina’s Urban Redevelopment Law of 1951, N.C.Gen.Stat. §§ 160A-500 to 160A-526 (1976); Oregon’s Housing Authorities Law, Or.Rev.Stat. §§ 456.055 to 456.230 (1977); Pennsylvania’s Urban Redevelopment Law of 1945, 35 Pa.Cons.Stat.Ann. §§ 1701 to 1747 (Purdon 1977); Rhode Island’s Redevelopment Act of 1956, R.I.Gen. Laws §§ 45-31-1 to 45-33-17 (1971); Tennessee’s Housing Authorities Law of 1935, Tenn.Code Ann. §§ 13-801 to 13-833 (1973); Utah’s Community Development Law of 1965, Utah Code Ann. §§ 11-15-1 to 11-15-152 (1973); Vermont’s Urban Renewal Act of 1957, Vt.Stat.Ann. tit. 24, §§ 3201 to 3221 (1975); West Virginia’s Urban Renewal Authority Law of 1951, W.Va.Code §§ 16-18 — 1 to 16-18-29 (1972); and Wisconsin’s Urban Redevelopment Law of 1943, Wis.Stat.Ann. §§ 66.405 to 66.425, 66.431 (1965).

      . The way in which the unavailability of mortgage loans causes deterioration of a redlined neighborhood is outlined in Note, Attacking the Urban Redlining Problem, 56 Boston U.L.Rev. 989, 997 (1976):
      Current homeowners, recognizing both the lower demand for housing in their neighborhood and its resultant effect on property values, realize that the sale of their homes will no longer yield a return equivalent to their investments. Owners of multi-family homes no longer feel capable of refinancing their properties in order to retrieve capital for further investment purposes. Thus, the homes in the area become nothing more than costly burdens to their owners. Any further expenditures seem both unwarranted and wasteful. As a result, homeowners keep maintenance and repair costs at a minimum, and the neighborhood deteriorates.

      . Cal.Health and Safety Code §§ 37910 to 37964 (Supp.1979); Colo.Rev.Stat. §§ 29-4-701 to 29-4-732 (Supp.1978); Ga.Code Ann. §§ 99-3601 to 99-3612 (Supp.1978); Iowa Code Ann. §§ 220.1 to 220.36 (Supp.1979); 30 Me.Rev. Stat. § 4601A (1978); Mich.Stat.Ann. §§ 125.-1401 to 125.1496 (1976); Minn.Stat.Ann. §§ 462A.01 to 462A.24 (Supp.1979); Mont.Rev. Codes Ann. §§ 35-501 to 35-526 (Supp.1977); N.C.Gen.Stat. §§ 122A-1 to 122A-23 (Supp. 1977); Or.Rev.Stat. §§ 456.550 to 456.720 (1977); 35 Pa.Cons.Stat.Ann. §§ 1680.101 to 1680.603a (Purdon 1977); R.I.Gen.Laws §§ 42-55-1 to 42-55-27 (1977); Tenn.Code Ann. §§ 13-2201 to 13-2214 (Supp.1978); Utah Code Ann. §§ 63 — 44a-1 to 63-44a-20 (1978); Vt. Stat.Ann. tit. 10, §§ 381 to 398 (Supp.1978); W.Va.Code §§ 31-18-1 to 31-18-25 (1975); Wis.Stat.Ann. §§ 234.01 to 234.44 (Supp.1979).
      It has been reported that thirty-nine states had enacted legislation creating state housing finance agencies by 1976. Note, State Housing Finance Agencies: The Iowa Blueprint, 62 Iowa L.Rev. 1524, 1524 n. 12 (1976-77).

      . This proposition seems to me to be somewhat questionable, as the statute, § 99.320(2) defines the authority as “a public body corporate and politic” and does not call it a municipality. Compare § 99.020(2), RSMo 1978 where under the Housing Authorities law a “housing authority” is expressly declared to be a municipal corporation.

      . The authority is expressly given the power by § 99.420(4) to purchase, lease or otherwise acquire real estate “necessary or incidental” to a land clearance or urban renewal project and to “improve, clear or prepare for redevelopment or urban renewal any such property,” within its area of operation, which is defined by § 99.-320(1) to be “the area within the municipality.”