*1 508 Menaugh 805; Brooks (Mo.), 284 S. (Mo. W. Schneider v. Hawks App.), 211 681(1); S. W. (Mo. Freeman v. Green 186 S. App.), 1168(5) ; W. (Mo. Parsons v. Himmelsbach App.), W. S. (2d) 841, 845(3).] foregoing The applies the intersection of north lane of Park Forest and Spring Boulevard Park Avenue. Forest Boulevard ais thirty street with two traffic each ways, width, feet in awith parkway forty forty-five of from feet in width between. In the application law with reference to the ve motor highways upon ways hicles of this State of said traffic is to each intersecting highway. separate be treated as a alleged specifically
The for all not hereinbefore occasion errors recurring easily prevented a retrial so discussed affecting rights respondent any discussion of such without her unnecessary. issues is finding Ellsberry has of the appealed.
Defendant present issue as jury final as him. does not necessitating a retrial damages The error awarded. the amount liability. Following de appellant’s only affects the issue of and Pacific Chicago, Rock Island J., in Hoelzel v. cision of Frank, (overruling (2d) 337 Mo. S. W. Railway al., Company et (2d) 543, 558(34), and W. 389, 421, 41 S. Curtis, Neal v. (2d) Baking 423, 436, S. W. 328 Mo. Nafziger Co., Barr v. hold the permitted respondent should issue),
565(13), on this the cause judgment reversed verdict; and the amount abeyance hold court to to the trial with directions is remanded against damages de liability amount as to both the verdict lia as to the disposed of Ellsberry case is until the Oliver fendant the issue of and, retrial on Fellis, after Walter bility appellant, the ver judgment amount enter liability appellant, finally held liable. against all defendants abeyance held dict Westhues, CC., concur. Cooley and adopt- by Bohling, C., opinion foregoing PEE CUEIAM:—The judges concur. All court. opinion of
ed as the County. S. (2d) 57. W. Colley, Appellant, Walter Two, July 11, 1935. Division *2 n McReynolds n
Chas. F. Flanigan Newman and <& appellant. respondent. C. Walden, Gray B. Dan Howard Nee and *3 COOLEY, Plaintiff, County Superintendent of Public Schools C. of Jasper County, sued to recover $312.50, claimed to be the un- paid balance of him due as such for the month July, regular 1931. He was elected at school election April, 1931, following. and July assumed his duties on first case turns on 9464, constitutionality of of Section (Mo. 7258). Revised Statutes Ann., p. Stat. If that section is plaintiff' valid recover; is entitled if unconstitutional, as defendant contends and held, as the circuit paid court he has been in full and judgment below for defendant is correct. Defendant in its an- being viola- said statute as challenged constitutionality of
swer (cid:127) Sec- IV, and Article tive of subsections Said Section Constitution. IX, of the State Article many special law” on enu- “any or local prohibits the enactment 33 thereof read: 32 and subsections subjects. Said merated can be general law where a cases “(32) . . all other enacted; be law shall special local applicable, no made any case applicable made have been general law could whether judicially shall and as such judicial question, hereby declared sub- legislative assertion on regard determined, without ” ject. “(33) Assembly Nor shall indirectly the General such enact special partial general law; law repeal or local of a but laws repealing passed.” local or acts IX,
Said Section reads: Assembly General shall, operation, “The a law uniform provide regulate county officers, all for and the fees of and for may classify by population.” this purpose the counties .fixing Prior to 1919 there existed a statute the salaries classifying superintendent, counties for. purpose applying to all counties in the State. having 50,000 population at fixed such salaries for counties over per section, $1500 a new similar ex- repealed It was annum.. salaries, fixing sal- cept as amounts of was enacted such per at annum. population, aries in all of over counties appears as Revised Statutes That statute now 7257). (Mo. indicated references Ann., p. Stat. otherwise [Unless ap- section numbers will be to the statutes hereinafter *4 Legislature 1919 enacted a law pearing in R. In S. Mo. 1929.] viz., apply only county, that it could to one which was worded so $4000 which for the provided St. Louis that superintendent. parties hereto seem to treat county school Both question which, having unconstitutional, how- been act as —a Legislature 1929 re- In ever, we not concern ourselves. need validity 9464, supra, the present Section pealed that act and enacted having in all counties provides It of which here involved. may thereafter have passage or that at the time of 350,000 superin- less than than more only apply can to per annum. salary shall be tendent’s Buchanan, Greene, Jasper and St. State, viz., four counties Louis counties. in question constitutional Preliminary consideration of the
I. question that such appellant’s contention we notice volved the circuit timely raised review because not properly here for 507 court. The suit September succeeding 2, was-filed 1931. At the next term of court September and on 23, 1931, defendant filed a demurrer plaintiff’s petition which overruled, was and defendant given was leave to answer on or 1931. 28, before October an swer was filed October 31st. point No is made that the answer was filed out of time or without leave of court. In that answer defend challenged ant for the first constitutionality time statute upon plaintiff which The general bases his claim. in demurrer was effective question, to raise the constitutional as is conceded. [See State ex rel. Co., 522, Franklin v. Tibbe Electric 250 Mo. 635;
157 S. W. Nolte, State ex rel. Schuler Mo. 285 S. W. question contends that a must constitutional 501.] opportunity failing raised at the first by and that to file de specifically question presenting murrer the defendant waived it cited, and could not thereafter assert in his answer. Cases are it Dubowsky Binggeli, such as Mo. W. S. holding question supra,
State ex rel. v. that a constitutional Nolte, appears if plaintiff’s peti be raised demurrer it from the upon which the tion that his cause of action is founded a statute case, 315 In Nolte Mo. defendant claims is unconstitutional. . . . “In l. c. 285 S. W. l. c. it is said: Missouri questions may be raised demurrer
it held that constitutional pleading . . whatever but the mode well as answer as provision provi or particular constitutional point must out the it we have cited, however, nor in In case sions violated.” no ques aof constitutional found, has court held that the assertion this defend the first time appears it late when tion comes too by appellant In cases cited and relied ant’s answer. answer, when it could question was not raised either demurrer stage of later first raised at some but was presented, have been so presented have been was held to reason proceedings and for that too late. Lohmeyer Cordage v. St. Co., Louis 685, 689-90, (cited by W.
S. both parties), it is stated be the settled law lodged that a constitutional “should the case at the good earliest pleading orderly procedure moment that ad- will case, mit under the given circumstances of the otherwise will be case, hereinafter, required waived.” In the instant appear will proof plaintiff’s appearing petition of facts not on the face of grounds challenged present order which on defendant constitutionality of the statute and enable the court to determine *5 question. practice proof properly Under that our such could not petition. have and on a demurrer been heard considered ‘; thing as Whatever the there is no such doctrine elsewhere jurisprudence of this State— ‘speaking a known to the demurrer’ which, is, alleges that a taken demurrer that affirmative matter allegations no action is stated. petition, in the shows cause of that face squarely . . at the of this State a demurrer strikes Slavens, 218 else.” petition and nowhere [Hubbard Gypsum 1111. Pacific Lime & Co. See, also, S. W. Bridge Co., 286 Mo. 226 S. W. Without & Iron Missouri intimating 853.] might had the de different be reached that a conclusion required of question consideration of the constitutional termination is clear petition, in the it that than those stated no facts other answer, lodged raising defendant, by said its this case the good orderly procedure per and early pleading as it in the case as is here for consideration. under circumstances. mitted II. At the trial below the parties part as introduced of their proof evidence, by reference to the biennial manual known as the 1928-1929, Book showing, among Blue statistics, other the 1928 presidential electors; vote for by this because Section provided determining purpose salary county for the of of a superintendent school the population county of the shall ascer- by highest multiplying tained a half and of three number county presidential votes cast in preceding such at the last election. By Superintendent similar report reference to the of the annual State (the prior of Schools for 1928 last report present to the enactment of 9464), Section report' in that statistics shown were introduced. shall, opinion, reference, We make specific this such without use necessary. the data Plaintiff presented may appear of thus vol- untarily laboring data, evidently took presenting oar in said purpose showing made that the classification Section logical was arbitrary but based reasons. upon sound and Ascertaining population in manner Section prescribed appears Buchanan, Greene, St. Louis each counties had, enacted, when a than was more 100,000 more 350,000, than had less but Jackson Sec- being of said 350,000, operation than thus from excluded city contains 9464. Buchanan and Jackson counties each Joseph Buchanan'County and inhabitants, than more —St. cities, by provisions City County. Those Kansas in Jackson 1929, have their own school 16, Chapter 57, Revised Statutes and functions management duties supervision in them the practically so. superintendent nil or are ascertained population, County' had outside 111,000, Buchanan Coun- mentioned, while method above of over in- 26,000. had Buchanan ty Joseph about of St. oiitside said section under so that cluded per annum. gets county school *6 while Jackson because of the-existence within its-borders of large its with population, is excluded and under Sec- its is only entitled to per annum. Appellant refers to Section IX of Article of the Constitution as authorizing expressly the General Assembly classify to the counties by population the purpose regulating for the fees of county offi- gives cers. Assembly Said section power the “by so to do a uni- law ’’ operation. form in its But we do not appellant understand con- to tend such classification may be arbitrarily made when there logical exists no sound reason or distinction to Appel- warrant it. says lant in his brief: having forepart “It been made argument manifest of this Assembly power that the under the constitution classify had to coun- fixing ties purposes, inquiry arises omitting Assembly, whether the from Section logical was actuated considerations or whether omis- purely arbitrary sion was and unreasonable.” quotes Barrett, from State inf. Atty. ex Gen., ex rel.
Bradshaw, Hedrick, 21, 74, 294 Mo. 241 S. W. 420: legislative basis of is.similarity
“The sound classification of situa- respect tion or condition with the feature which renders the law applicable. whether, . . appropriate and . is not The considering exist, Legislature might all which the circumstances constitutionally larger which a law make trould include a class. On it whether contrary, appears beyond is it a reasonable doubt appertaining are no distinctive circumstances class there respect legislated reasonably justify which it has which its restricting persons, the law ob- action jects places applicable.” which law made or is (indicating part . however,'omits .), what Appellant, of. reads;.“A portion said. omitted not include
the court law and, similarly does, special are If it is less than all who situated. it invalid, part therefore, it a those the na because omits which in case, things law includes.” In the ture the reason same quoted following, c. 241 W. we find the l. S. l. c. Hancock, L. 1023: from N. J. Atl. approvingly Budd when, “A sense force of an special law is a constitutional places limitation, arbitrarily separates persons, some inherent op- upon which limitation would things others but such from provi- of its special appropriateness law the The test erate. therefore, a law not, objects that it excludes. what sions nothing If excludes. special, but what it makes it includes that general. contained, Within this law excluded, that should law, question between distinction every ease is object whether appropriate is excluded to which the law, but for limitations, its apply. only would If the limitation con- legitimate tained in lawa is a objects, gen- classification it is a *7 eral Hence, law. object if the of a law have characteristics so dis- reasonably tinct as form, purpose legislated for upon, a class by itself, the law general, notwithstanding is operates it upon a sin- gle object only; general for a law operates upon is not because every person in State, every person but because that can be brought predicament subject within its becomes its operation.
In v. 168 Koenig, Henderson Mo. S. W. the court held unconstitutional, as violative of subsections of Section fixing IY of the a Constitution, statute pro for the judge City bate in the St. Louis, which provisions ap could ply only questions city. legislative to said of classification for general purposes special and of laws length. are discussed at may quote decision, not be amiss'to from that as indicative of the principles applicable only particular which laws localities upheld. said, have sometimes been 168 Mo. l. The court c.
68 S. 72:W. made cases
“But the assertion is have been decided this legislation special legislation, say, court or ap- where local that is to plicable city Louis, City, alone to of St. or alone to Kansas has true, been valid. This decisions in none of held but in the those ruling slight- any expression impinges cases there which was degree against prohibition est a local or on constitutional being general appli- law where a law could have been made enacted recognition cable; implied either or else contrary, on the distinct given owing constantly that, to the idea circumstances exigencies been particular case, law could'not have of the applicable made applicable, or where it could not have been made legislation questioned was the result fact reason of the specific command of the Constitution. to some of direct obedience this all the cases decided on will be found to embrace This statement ’’ subject. for question of classification discussion of the comprehensive For supra; ex rel. Koenig, State legislative see: Henderson v. purposes 83; rel. Garesche (2d) State ex Moseley Lee, 319 S. W. v. Mo. Barrett, rel. 1008; inf. ex 541, 167 State ex Roach, 258 S. W. Hedrick, supra. Bradshaw, the de- conceded that to be effect case seems the instant not, at whether or question, question, least a decisive at cisive any reasonable enacted, existed was there time operation County from the Jackson exclusion of grounds for the he'’asserts, said why, suggests several reasons Appellant
the act. reasonably excluded. have been so county says it appears report from the Super- State intendent of Schools that the rural districts County Jackson had fewer teachers and pupils fewer than either of the four counties to which Section 9464 applies. compiles He from said report a table showing respective number of teachers as: County, Buchanan 586; County, Greene 510; Jasper County, 554; St. Louis 938; County and Jackson 386. But in the number of teachers claimed for Buchanan County appellant employed includes city those in the Joseph, St. who do not come under superin- tendent’s supervision, who, if we understand report, said school number, as there shown, 472, leaving only for the rural dis- tricts of Buchanan County. figures given In the County Jackson appellant does not employed include those City. By similar process erroneous compilation appellant arrives at the conclusion that in the rural districts of Jackson there are pupils fewer than in Buchanan County or either of the other three. again giving figures
He omits Kansas *8 Joseph but includes St. in his County. for Buchanan total Another reason advanced for the omission County of Jackson is county that “the number of certificates issued County in Jackson is less than the number issued in any other of the four counties in- volved.” by argument sought The tabulation which this is to way regarding sustained is made in the same as that teachers and pupils just arriving to which we have referred. at the number of County certificates Joseph for Buchanan St. is in included while County City making Jackson Kansas computation. is excluded in 75,000 If in both counties said said cities of over are ex- larger cluded the number of certificates is for Jackson than for County. By Chapter 57, Buchanan Article 13 of Revised Statutes 1929, comprising 9470-9480, provision Sections is made for the ex- granting of of by county amination teachers and certificates superintendents. But, by article, appellant, school as stated that statutory by express provision, Sections 9544 and does in Joseph City. cities the size of St. apply not and Kansas There- fore, might though, appellant says, such facts make a even dis- county superintendents tinction between the duties of school in coun- Greene, Jasper and St. Louis such as and the duties of such ties counties, they in Buchanan and Jackson can afford superintendents higher County placing Buchanan in a bracket reason for no County. says Jackson further salary purposes than (which duties,” specify), does not by 13, supra, “certain he Article that, county superintendent upon the but since stat- imposed are applicable popula- in cities or more of article not ute said Assembly justifying in exclud- difference tion, “here another fixing salary of County from the statute ing Jackson 512
superintendents Buchanan, Jasper Louis, St. Greene Coun- holding ties.” Whether “certain duties” referred to are the of granting' examinations duties, since certificates other said 13 apply Joseph any Article does St. not more than City are appellant attempt we unable to see and hot point does (cid:127)out how could such duties constitute reason for placing Buchanan higher County in a bracket than Jackson when the larger latter a much population' has outside Kansas than has Joseph. the former outside St. argument appellant
Another advanced Sections county superintendent “the is burdened concerning appeals in with duties the matter of formation certain County (Sec. of new school districts. The to Jackson statute as impose 1929), superintendent those on R. S. does duties County.” relating is found the article to “common schools.” Section upon certain place It duties does school changing (cid:127)concerning districts, formation new appeals boun- 9343 makes districts, provisions etc. daries between Section changes “relating boundary lines of common districts,” “town, city applicable and consolidated dis- Chapter 57, re- is found tricts.” Said Section may be ob- lating “City, Town and Consolidated Schools.” appeal therein provides served here that appoint four being county superintendent shall provided for taken shall constitute board arbitra- who, himself, persons other payment of fee to such dispute, provides for to settle county superin- It would seem that for such services. board than compensated are otherwise in such matters duties tendent’s *9 ground for this, afford no dis- Regardless such duties salary. of his higher than in Jackson salary in Buchanan of a in favor tinction 16, supra, applying to 9536 is in Article County. found Section 350,000. Joseph It affects St. 75,000 therefore and less than of cities County. City Jackson County Kansas and the same as Buchanan and taking city of in such districts ad- for the provision It makes provide ap- not for an proceedings sueh does jacent territory, and in section, similar We find a superintendent. county school to peal the Schools. relating City, Town and Consolidated 9342, in Section of said discussing provisions in detail Without basis for the ex- no reasonable say can afford that'it is sufficient 9464 that operation of Section County from the Jackson of clusion County. And we can see equally to Buchanan apply would concerning appeals why “duties suggested none is no reason by Sec- imposed districts” school of new of formation matter in the of Jackson county superintendent upon the not devolve 9275 do County county for part that of the Kansas City outside as well as superintendent of Buchanan for County territory out- Joseph. side St. As we have pointed population out the outside of a city 75,000 of than more inhabitants is more than four times as large in County Jackson County. as in Buchanan As to all of the alleged reasons referred to above which are advanced for the ex- clusion of County operation from scarcely of this law it requires argument they demonstrate necessarily would call equal greater with force for the exclusion of County, Buchanan with its population. smaller rural suggests that “rural problems school are the
province county superintendent,” of a citing Section which requires such time study to devote certain of school problems. rural Again, out, for the we have pointed reasons ground we can find no for the exclusion of Jackson
population which, City, outside Kansas provided ascertained as 9465', is more than four times that of Buchanan St. Joseph, population outside more than Jasper the entire Coun- large ty, nearly population County. as as the entire of Greene suggested as a distinction between Jackson and the counties 9464 applies four to which Section the voters Kansas county Ap- superintendent. have no voice in election of the 75,000 pellant says in that electors cities of over inhabitants do not fact, county If superintendents. vote at such be the elections question salary superin- we fail to see how it affects the of what such tendents no dis- should receive. But event constitutes con- tinction between Jackson and Buchanan counties because each city tains a of over inhabitants. superintendents coun- Buchanan and Jackson county
Since the responsibilities in matters substantially no ties have duties or City respectively it dif- Joseph St. within the cities of substantially can af- those cities population to see how ficult logical relation to the of the have and substantial fect or only superintendents. If paid to such should , which counties over population parts those two in which has duties jurisdiction he extends superintendent’s discharge responsibilities were considered there perform and than those includ- in the State other of counties number would great and duties 9464 in which the as in Section ed county superintendent as either said as onerous and labor County. Such coun- other example, or, two counties from the along excluded Jackson are ties *10 need not But are included. and Buchanan while we 9464, in the mat- question. unable to find We are phase of pursue this by the facts and data submitted urged by or in appellant ters per- record substantial differences in the situation and conditions taining county superintendent in Jackson to the office of of schools compared coming with the counties within the Section classi- could afford a reasonable or sound basis for fying regards a lower bracket as su- perintendent’s salary than act. That is the counties included special prohibited sufficient condemn the act in as a law by IY of subsections and Section the Constitution. said, also, we think it well be that in view the facts and And opera- above said act is not uniform in circumstances mentioned general by applicable a could be made tion. Whether or not law question. judicial á That express'provision Constitution cleár, general a think is as evidenced the fact that could we years many was in forcé law, Section had been enacted Koenig, 9464. Henderson prior passage of Section See repealed supra.' partially law the enactment That was effect so as it repealed applied in effect far is, Section Koenig, 9464. coming under Henderson four counties supra, indirect supra. forbids the enactment of Subsection partial repeal opinion law. It is our law the void. is unconstitutional and hold that said and we Bohling, affirmed. circuit Westhues court judgment of the concur. GG., adopted Cooley,’C., foregoing'opinion CURIAM:—The PER judges All court. concur. opinion of
as the County, Appellants, Pike Treasurer of W. A. Pike White, Special Deputy C. A. Commissioner Greenlee, v Finance, Harrison, Commissioner of R.D. Finance, Eolia (2d) S. W. Corporation. 112. Bank, 30, 1935. One, Division July