(218 S.W.) II. The propriety of the proceeding having | 631; Zorger v. Greensburgh, 60 Ind. 1; Gates, been established, the sole question seeking etc., v. Richmond, 103 Va. 702, 49 S. E. 965. solution is the validity of the ordinance. The city charter, which constitutes the immediate source of municipal legislative power, is in this regard comprehensive in its terms. It is not deemed necessary to set these out in detail, reference thereto being sufficient. See clauses 14, 23, 25, 26, of article 1, § 1, Charter City of St. Louis. To these more specific powers which include the right to establish, locate, dedicate, and supervise the highways of said city, is added the following general provision: "To do all things whatsoever expedient for promoting or maintaining the comfort, education, morals, peace, government, health, welfare, trade, commerce or manufactures of the city or its inhabitants." Clause 33, art. 1, § 1. [2] These provisions, which have their origin in the police power of the state (State ex inf. Barker v. Merchants' Exchange of St. Louis, 269 Mo. 346, 190 S. W. 903, Ann. Cas. 1917E, 871), are ample to authorize the city by legislative enactment not only to establish and improve its streets but to prescribe the terms and conditions upon which they may be used (State ex rel. Subway v. St. Louis, 145 Mo. loc. cit. 570, 46 S. W. 981, 42 L. R. A. 113; St. Louis v. W. U. Tel. Co., 149 U. S. 467, 13 Sup. Ct. 990, 37 L. Ed. 810), subject only to the Constitution and the laws of the state (section 23, art. 9, Const. Mo.). III. The general power to enact an ordi nance of the character here under review Hence penal ordinances, like pénal statutes, are to be strictly construed. City of St. Louis v. Robinson, 135 Mo. loc. cit. 470, 37 S. W. 110; St. Louis v. Goebel, 32 Mo. 295; U. S. v. Hartwell, 6 Wall. 396, 18 L. Ed. 830. This rule is to be applied when the purpose of construction is to relieve one charged with a violation of such an ordinance, a liberal construction being permissible otherwise to maintain its validity. Swift v. Topeka, 43 Kan. 671, 23 Pac. 1075, 8 L. R. A. 772. Without reference in detail to the requisites of a valid criminal statute, it will suffice to say that an ordinance, to conform to same, must be general in its terms and uniform in its application to the class of persons or subjects to be affected. If the ordinance, therefore, seeks to regulate citizens in the otherwise lawful use of their property or the conduct of their business, the rules and conditions therein required to be observed must be so specified that all of the citizens may alike be required to comply with same; and no opportunity must be afforded by the terms of the ordinance for the exercise of discrimination between citizens so complying. St. Louis v. Con. Co., 244 Mo. loc. cit. 489, 148 S. W. 948. An analysis of the ordinance will enable it to be determined whether it possesses the infirmity indicated. Instead of prohibiting the general personal solicitation of persons for business purposes upon the streets and sidewalks of the city, its application is limited to the prohibition of such solicitations to persons in like lines of trade having been determined, its validity is to be in front of the store or place of business of tested by the rules of interpretation appli- a competitor. Such a classification is neither cable to state legislative enactments. St. general in its terms as to the persons to Louis v. Con. Co., 244 Mo. loc. cit. 488, 148 whom it is intended to apply, or to the S. W. 948; Carroll v. Campbell, 110 Mo. 557, streets the use of which is attempted to be 19 S. W. 809; Holman v. City of Macon, 155 regulated. Mo. App. loc. cit. 402, 137 S. W. 16. [3-6] A prosecution for a violation of the ordinance in question, while technically a civil proceeding (Kansas City v. Neal, 122 Mo. 234, 26 S. W. 695; City of St. Louis v. Vert, 84 Mo. 204; City of St. Louis v. Schoenbusch, 95 Mo. 618, 8 S. W. 791; Ex parte Hollwedell, 74 Mo. 395; City of St. Louis v. Knox, 74 Mo. 79; Kansas City v. Clark, 68 Mo. 588), will, upon a conviction, authorize the imposition of a penalty, and in thus far it partakes of the nature of a criminal action and the ordinance on which it is based is subject to the same rules of construction as a criminal statute, for it is not to be presumed that the state has delegated to a municipal assembly a greater right or conferred upon its acts a more liberal rule of interpretation than is applied to its own legislative enactments. Hays v. Poplar Bluff, 263 Mo. 516, 173 S. W. 676, L. R. A. 1915D, 595; Chicago, etc., v. Salem, 166 Ind. 71, 76 N. E. Certainly, if it be an ill requiring legislative supervision to regulate the solicitation of business upon the streets and highways within the limits prescribed in the ordinance, then it must follow that it is equally an ill to solicit business elsewhere upon any of the thoroughfares of commercial activity in the city. The ordinance therefore cannot be otherwise construed than as special in its terms and local in its application, contravening the constitutional provision that "where a general law can be made applicable, no local or special law shall be enacted" (section 53, clause 32, art. 4, Const. Mo.), which salutary rule regulating legislation we have shown applies with equal force to an ordinance as well as a state law (St. Louis v. Con. Co., 244 Mo. loc. cit. 488, 148 S. W. 948). [7-11] IV. The authority primarily for the enactment of ordinances of the character here under review must arise from the exercise of the police power. This power, as we have STATE ex rel. ABINGTON v. REYNOLDS et al., Judges. (No. 21564.) (Supreme Court of Missouri, in Banc. Filed MENT ADMITS TRUTH OF ALL FACTS WELL A motion for judgment admits the truth of TLED TO FEES. 95 DE JURE OFFICER ENTI Compensation is an incident to the title to an office, and it belongs to the de jure officer who may, upon establishing his title thereto, recover the fees for the same from a de facto officer who has received them. 3. TOWNS 27-INTRUDER NOT EVEN DE FAC TO OFFICER. before indicated, exists in the state and is held to be delegated to municipal corporations to be exercised in the preservation of the health, safety, welfare, and comfort of the citizens. While this classification may be extended by the more general one that whatever is contrary to public policy or is inimical to the public interest is subject to 1. PLEADING 350(3) — MOTION FOR JUDGthe police power (State v. Smith, 233 Mo. 242, 135 S. W. 465, 33 L. R. A. [N. S.] 179; Silva v. Newport, 150 Ky. 781, 150 S. W. 1024, 42 L. R. A. [N. S.] 1060, Ann. Cas. 1914D, 613), and whether the ordinance is calculated to promote the object of its enactment or not is one with which we have no concern if the municipal legislative will has been clearly expressed (State v. Clarke, 54 Mo. 17, 14 Am. Rep. 471; Crowley v. Christensen, 137 U. S. 86, 11 Sup. Ct. 13, 34 L. Ed. 620; Ex parte Hayes, 98 Cal. 555, 33 Pac. 337, 20 L. R. A. 701; Comm. v. Reinecke Coal Co., 117 Ky. 885, 79 S. W. 287), conformity to constitutional and statutory requirements is as necessary to the validity of ordinances of this character as others. More briefly put, a municipality cannot authorize that which either the organic law or the Legislature has forbidden. Under our system of jurisprudence, therefore, an ordinance enacted in the alleged or ostensible exercise of any of the well-defined purposes of the police power must be general in its nature and applicable alike to all who may properly come within its purview. If, as is probable from its terms, the purpose of the enactment of the ordinance was upon the assumption that its enforcement would promote the welfare and add to the comfort of the public by affording more facilities for the use of the streets, then to avoid the constitutional inhibition it should have been general in its terms and uniform in its application; lacking these requisites, its invalidity inheres despite the purpose of its enactment and will not stand the test of judicial construction. Merchants' Exchange v. Knott, 212 Mo. 616, 111 S. W. 565; Hewlett v. Camp, 115 Ala. 499, 22 South. 137; Flood v. State, 19 Tex. App. 584; Bohmy v. State, 21 Tex. App. 597, 2 S. W. 886. The invalidity of the ordinance having been determined, and the right to enact one not burdened with the infirmities of that at bar being conceded, it becomes unnecessary to discuss whether personal liberty would be impaired by the enactment of a general ordinance; my individual opinion is that it would not. In view of all of the foregoing, the petitioner should be discharged, and it is so ordered. All concur. BLAIR, WILLIAMS, and GOODE, JJ., in result. WOODSON, J., absent. Where the office of township collector in a LECTOR CAN RECOVER FEES COLLECTED AND After Butler county by an election in 1914 Certiorari by the State, on the relation of Carl C. Abington against George D. Reynolds and others, Judges of the St. Louis Court of Appeals, to quash the record of that court in the case of Abington v. Harwell, 211 S. W. 885. Record quashed. Sam M. Phillips and Ed. L. Abington, both of Poplar Bluff, and W. T. Rutherford, of St. Louis, for relator. L. M. Henson and Sheppard & Sheppard, all of Poplar Bluff, for respondents. WALKER, C. J. Certiorari to the St. Louis Court of Appeals to quash its record in Abington, Appellant, v. Harwell, Respondent, designated hereinafter as the "original For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (218 S.W.) and it is for the recovery of the amount of the commissions on collections made by said Harwell during that time and retained by him that the original action herein was brought by Abington. action." The appellant, who was at the time [tinued in the exercise of the duties of the collector of the revenue of Butler county, offices of township collectors in said county, sued the respondent for money had and received consisting of commissions on taxes collected by the latter to the former's use. At the close of a jury trial the court sustained a general demurrer to appellant's evidence, and directed a verdict for the respond- In December, 1914, the Attorney General ent. An appeal to the St. Louis Court of Ap-instituted in the Supreme Court a proceeding peals resulted in an affirmance of the judg- by quo warranto to determine the right of ment of the trial court. The writ herein was thereupon invoked on the ground that the ruling of the Court of Appeals was in conflict with certain decisions of this court. The facts, as disclosed by the opinion, are that Harwell had in March, 1913, been elected a township collector of the revenue of Poplar Bluff township in Butler county, then under township organization. At the general election held November 3, 1914, the continuance of township organization was, under the provisions of section 11745, R. S. 1909, submitted to the voters of that county, with the result that a "majority of all the votes cast on the question was against its continuance." On November 28, 1914, the Governor, acting under the authority of section 5828, R. S. 1909, and section 11 of article 5 of the state Constitution in regard to the filling of vacancies in office, appointed and commissioned Abington collector of the revenue of Butler county. The county court of that county on December 1, 1914, under a provision of section 11745, supra, appointed one Duncan collector of the revenue of said county, who qualified by taking the oath of office and tendering an official bond, which was accepted by the county court, but he never attempted to exercise any of the duties of the office. On the same day Abington presented to the county court a bond as collector of the revenue of said county. The court refused to approve the same on the ground that the power to appoint a collector was lodged by the statute (section 11745) in the county court, and not in the Governor. On December 17, 1914, Abington executed and submitted to the county court a new bond as collector of the revenue of said county in the sum of $125,000, the approval of which was refused by the county court on the sole ground as before, that the appointment made by the Governor was unauthorized. The only difference between the two bonds was that the second was $5,000 larger in amount than the first. Duncan to the office of county collector, and that of Harwell and others named to the offices of township collectors of Butler county. This is the action heretofore referred to as State ex. inf. Attorney General v. Duncan. It was held in that case that the provision in section 11745, requiring an affirmative vote of "all those voting at an election to discontinue township organization," was invalid, as in contravention of the constitutional provision (section 9, article 9), which requires only "a majority vote of all of the votes cast upon that question" to discontinue this form of county government. As a consequence of this ruling, the returns showing that a majority of the votes cast on the question were against township organization, it was held to have been thereby discontinued; and it was further ruled that the county court, notwithstanding the provision of section 11745, supra, attempting to empower it so to do, was not authorized to appoint a county collector because of the contravening constitutional provision (section 11, article 5) and the statute (section 5828, R. S. 1909) in conformity therewith, which invest the Governor with this power; that upon the discontinuance of township organization Harwell and the other township collectors were divested of authority to act as such; and, it appearing that the Governor had exercised the power conferred on him by the appointment of Abington as collector of the revenue of said county, that the latter was entitled to said office, and a writ of ouster was directed to issue against all of the respondents named in said proceeding, which included Duncan and Harwell. Following this ruling of the Supreme Court the county court, on the 15th day of April, 1915, approved the second bond of Abington as collector, theretofore submitted to it, and he entered upon the discharge of the duties of the office. Hunter v. The Court of Appeals held that Abington was not authorized to sue for and recover During the time intervening between the from Harwell commissions retained by the election for the discontinuance of township latter on taxes collected by him during the organization in said county in November, time intervening between Abington's appoint1914, and the ruling of the Supreme Court in ment and induction into office. State ex. inf. Attorney General v. Duncan Chandler, 45 Mo. 452, is cited in support of et al., 265 Mo. 26, 175 S. W. 940, Ann. Cas. this conclusion. In that case a demurrer to 1916D, 1, on April 2, 1915, in disregard of the the petition had been sustained by the trial appointment of Abington by the Governor court. In reviewing this ruling we held it and the attempted appointment of Duncan appearing from the petition that Hunter was as county collector by the county court, Har- not at the time in possession of the office, that well and the other township collectors con- his title thereto should have been established in a separate proceeding as a condition pre- [office. Where, therefore, the party sued, as cedent to his right of action for the fees of in the original action, admitted not only the same. This conclusion was but an application of the general rule that a right of action in any case is dependent upon it appearing from the petition that the plaintiff has a substantial interest in the matter in controversy. Where the matter involved is the fees of an office, it must appear that the plaintiff's title to the office has been determined. With the correctness of this conclusion under the facts in that case we have no controversy. The vexing question is whether the allegations of Abington's pleadings, as disclosed in the opinion of the Court of Appeals, show that his title to the office had been determined at the time of the institution of the original action. plaintiff's title to, but his possession of, the office, what principle of justice or private right demands as a prerequisite to his right to sue for the fees of such office that he shall establish his title to same in a separate proceeding? A fact established needs no proce dure or proof for its further establishment and the separate proceeding required by the Court of Appeals ruling would have served no substantial purpose in the administration of justice. Its only effect would have been to impose an onerous and unnecessary prerequisite upon the plaintiff. Abington's right of action having been established by the admission of the truth of his pleadings, a discussion as to the effect, [1] Preliminary to a discussion of the suffi- except as stated, of the quo warranto proceedciency of the petition, it is pertinent to say ing instituted by the Attorney General (State that the elementary rule which the Court of ex rel. v. Duncan, supra) may be eliminated Appeals ignored should have been applied; as unnecessary to a determination of the matthat upon the filing of a motion for a judg-ter at issue. The regularity of Abington's ment on the pleadings, as was done in this appointment and commission, and that he case, the mover admits, either directly or pursued the course directed by the statute impliedly, the truth of all facts well pleaded to authorize him to be inducted into the ofby the opposite party. State ex rel. Hadley fice, are conceded; his failure, therefore, to v. Railroad, 237 Mo. loc. cit. 346, 141 S. W. secure the possession of same was not due 643; State v. Goffee, 192 Mo. 670, 91 S. W. to his neglect or remission, but the unauthor486; State ex rel. Attorney General v. Sim-ized refusal of the county court to approve mons Hardware Co., 109 Mo. loc. cit. 123, his bond, made and executed as the law re18 S. W. 1125, 15 L. R. A. 676. [2-4] It will be sufficient to say, without setting forth the petition at length, that the appointment, qualification, and induction into office of Abington as collector of Butler county is affirmatively pleaded therein, and that he was in the possession and exercise of the duties of the office at the time of the institution and prosecution of the original action. This being true, his title to the office, as evidenced by the express declaration to that effect in the opinion rendered by this court in the quo warranto proceeding of State ex rel. Attorney General v. Duncan, supra, need not, except as an affirmative judicial recognition of such title, be held to be determinative of his right to institute the action for the recovery of his fees. That right was sufficiently determined by the admitted declarations of his pleadings, and instead, therefore, of the case of Hunter v. Chandler sustaining the conclusion reached by the Court of Appeals, it is, under the facts in the original action, an authority to the contrary, in that, if it had been shown therein, as it was in the original action, that the plaintiff was in possession of and entitled to the office, his right to the action for the fees of same would have been upheld instead of denied. The Court of Appeals' opinion, therefore, while not in this particular in direct contravention of our rul- | ing in Hunter v. Chandler, supra, is contrary to its spirit and purpose, and fails to correctly limit its application to one suing to recover fees who is not an incumbent of the quired. It follows as a necessary consequence of these facts that upon his submission to the county court of the required bond on December 17, 1914, he became the de jure collector of the revenue of the county, and as such entitled to the fees of same (Auditor v. Menominee County, 89 Mich. 552, 51 N. W. 483; Hamlin v. Kassafer, 15 Or. 456, 15 Pac. 778, 3 Am. St. Rep. 176; McMil lin v. Richards, 45 Neb. 786, 64 N. W. 242; Stott v. Chicago, 205 Ill. 281, 68 N. E. 736; People v. Staton, 73 N. C. 546, 21 Am. Rep. 479); and upon his induction into the office on the 15th of April, 1915, he was authorized to sue for and recover any fees collected by another from the time he became entitled to such fees, of which he had been deprived through no fault of his. In ruling to the contrary the Court of Appeals contravened the opinion of this court in State ex rel. Evans v. Gordon, 245 Mo. loc. cit. 28, 149 S. W. 638, in which we held it to be settled law that compensation is an incident to the title to an office, and that it belongs to the de jure officer, who may, upon establishing his title thereto, recover the fees of same from a de facto officer who has received them. The rule should and does apply with more strictness to one who has usurped an office belonging to another and has received the fees of same. Mayfield v. Moore, 53 Ill. 428, 5 Am. Rep. 52; Glascock v. Lyons, 20 Ind. 1, 83 Am. Dec. 299; 22 R. C. L., title, Public Officers, § 244. There is no claim here of a de facto incumbency of the office. Harwell was a mere (218 S.W.) intruder. The office of township collector had | 3. MUNICIPAL CORPORATIONS 723, 108 S. W. 563. The conclusion of the Court of Appeals that Abington did not become an officer de jure until his bond had been approved by the county court is without merit. Sections 11434 and 11440, R. S. 1909, which define the conditions of a collector's bond, are cited in support of this conclusion, in that they require that such bond shall be given "to the satisfaction of the county court." This simply means that such a bond shall be given as the law requires, and such requirements are clearly defined in the statute. It is conceded that they were in this instance fully complied with, and the record affirmatively shows that the reason assigned by the court for its refusal to approve the bond was wholly unauthorized. The logic or lack of same of the conclusion is therefore that it results in the denial of a conceded right for an unauthorized reason. Contravening, as the Court of Appeals opinion does, the rulings of this court as to the effect of a general demurrer or a motion for a judgment on the pleadings and in regard to the right of the relator to sue for the fees herein, it follows that its record should be quashed; and it is so ordered. 485(2)-SEP ARATE TAX BILLS FOR SEWERS VALID; "LOT." Where seven special tax bills for construction of a district sewer were issued against an addition in the city of St. Louis, which it was claimed was a single parcel of land, so that only one tax bill should have been issued, notwithstanding the addition had been platted into lots, held, that under St. Louis Charter, art. 6, §§ 21 and 22, relating to district and joint district sewers, the tax bills were valid; the word "lot" as used in section 21 having an indefinite meaning, which may refer to piece, division, or parcel of land, and not the meaning given in struction of sidewalks. section 14 of the Charter, relating to the con [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Lot.] 4. COURTS 231(4)-DECISION OF COURT OF APPEALS THAT SPECIAL TAX BILLS FOR DISTRICT SEWER WERE INVALID HELD IN CONFLICT WITH DECISION OF SUPREME COURT. peals that seven special tax bills for the conA decision of the St. Louis Court of Apstruction of a district sewer issued against a so-called addition which had been platted into lots were invalid under St. Louis Charter, §§ 14, 21, and 22, because one tax bill should have been issued against the entire parcel which was inclosed, held in conflict with the controlling decisions of the Supreme Court. relation of the Boatmen's Bank, against Certiorari by the State of Missouri, on the George D. Reynolds and others, Judges of the St. Louis Court of Appeals, to quash the record of that court in the case of Boatmen's Bank v. Semple Place Realty Co., 213 S. W. GRAVES, WILLIAMS, and WILLIAM-900. Record quashed. BLAIR and GOODE, JJ., concur in result. In obedience to our writ of certiorari, the St. Louis Court of Appeals has transmitted here the record in the case of Boatmen's Bank against Semple Place Realty Company et al. In that case the Court of Appeals affirmed a judgment declaring void certain sewer tax bills issued by the city of St. Louis against seven separate lots in that city own STATE ex rel. BOATMEN'S BANK v. REYN-ed by the defendants in that suit, and formOLDS et al., Judges. (No. 21601.) (Supreme Court of Missouri, in Banc. Jan. 26, 1920.) 1. CERTIORABI 64(1)-SUPREME COURT ON On certiorari to quash a decision of the Court of Appeals, the Supreme Court cannot consider whether the decision is unjust, and may interfere with it only if it conflicts with a previous controlling decision of the Supreme Court. 2. EVIDENCE 31-JUDICIAL NOTICE OF CITY CHARTER. The Supreme Court will take judicial notice of the provisions of the charter of the city of St. Louis. ing a part of an addition known as Semple place. Relator claims that the St. Louis Court of Appeals failed in its opinion to follow the last controlling decisions of this court as applicable to the facts stated. More specifically, the relator claims that the opinion in question fails to follow our rulings in the following cases: Bambrick Bros. Construction Co. v. Semple Place Realty Co., 270 Mo. 450, 193 S. W. 543; State ex rel. v. St. Louis, 211 Mo. 591, 111 S. W. 89; Sheehan v. Owen, 82 Mo. 458; and Neil v. Ridge, 220 Mo. 233, 119 S. W. 619. We turn to the opinion of the Court of Appeals for the following statement of the facts: "This is an appeal by plaintiff from a judgment of the circuit court of the city of St. Louis For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |