(dissenting). — This equitable proceeding has for its object the divesting of the lien of a certain special tax bill for $400, in favor of the Barber Asphalt Paving Company, for work completed by that company on Jefferson avenue, and to cancel such tax bill if issued; if not issued, to restrain its issuance.
The city, McMath, president board of public improvements, and Sturgeon, comptroller, demurred on several grounds, among them that the petition did not state facts, etc. The other defendant, the Asphalt Paving Company, filed an answer.. The lower court denied a temporary injunction, held objections raised by the demurrer well taken, and in consequence of plaintiffs’ refusal to plead further, dismissed their petition, hence this appeal. The only question, therefore, this appeal presents is the sufficiency of the petition. All facts not included in its allegations are dehors legitimate examination.
The petition, of extraordinary length and exceedingly prolix and argumentative, will accompany this opinion, and be referred to and quoted from, from time *104to time as occasion may require. An outline of the grounds of the petition is the following:
First. That the board of public improvements, and the municipal assembly upon its recommendation, have no authority to unite in one contract maintenance and construction or maintenance and reconstruction.
Second. That section 542 of the Revised Ordinances of 1887 is void under the provisions of the charter and as a necessary corollary the board and municipal assembly having no legal right to incorporate the maintenance clause (sec. 6, ordinance 17151) in ordinance 17151, therefore said ordinance 17151 is void; and in addition is void for three other reasons:
a. That ordinance 17151 was not indorsed with an estimate of the cost of maintenance as required by section 27 of article 6 of the city charter: “The assembly shall have no power directly to contract for any public work or improvement, or repairs thereof, contemplated by this charter, nor to fix the price nor rate therefor; but the board of public improvements shall in all eases, except in a case of necessary repairs requiring prompt attention, prepare and submit to the assembly estimates of costs of any proposed work, and,- under the direction of the ordinance, shall advertise for bids, as provided for purchases by the commissioner of supplies, and let out said work by contract to the lowest responsible bidder, subject to the approval of the council. Any other mode of letting out work shall be held as illegal and void. No security or any bond shall be taken unless he shall pay taxes on property equal in amount to his liability on all bonds on which he may be security to the city. And no contract shall be made under this section without a bond for its faithful performance, with at least two sufficient sureties.”
*105b. Because ordinance 17151 does not expressly name the material to be used in the maintenance as■ required by section 15 of article 6, of the city charter: “ All ordinances recommended by said board shall specify the character of the work, its extent, the maternal to be used, the manner and general regulations under which it shall be executed, and the fund out of which it shall be paid, and shall be indorsed with the estimate of the cost thereof.”
c. That, as alleged, there is a monopoly in the material specified in the ordinance.
In the first place the sufficiency of the general structure of the petition considered as a bill in equity will be examined, and, after that, its sufficiency for invoking equitable relief in reference to certain particular allegations.
1. The petition does not affirmatively show on its face by the statement of facts that the plaintiffs have no plain, adequate, and complete remedy at law. Such allegations of facts in the petition are jurisdictional, and their absence may be taken advantage of by the adversary party at any place or at any time or at any stage of the proceedings; or the court of its own motion without suggestion of counsel, or the point being pleaded, may raise the objection. This is the rule laid down by the supreme court of the United States and by the supreme courts of a number of states. Drury v. Conner, 1 Har. & G. 229; Woodman v. Freeman, 25 Me. 561; Trimble v. McGee, 112 Ind. 307. And in this state, Humphreys v. Milling Co., 98 Mo. 542. See Story, Eq. Pl. [10 Ed.], section 473. See, also, Hoey v. Coleman, 46 Fed. Rep. 221.
The latest federal adjudication on the subject is found in Allen v. Car Company, 11 Sup. Ct. Rep. 682, where the supreme court dismissed a bill filed to restrain the collection of a tax, upon the ground that there was *106an adequate remedy at law, notwithstanding the objection was raised in that court in the first instance, and had not been taken by plea, demurrer, or answer in the circuit court.
’ As before stated, facts must be made to appear on the face of the petition that the complainant has no adequate remedy at law; that is to say, the petition on this point must show the equitable jurisdiction of the court “by alleging traversable facts.”
No jurisdiction attaches in a court of equity to grant relief until and unless such allegations of facts are set forth in the petition as being expressly averred, can be expressly denied. Special circumstances must be stated which bring the case within some recognized head of equity jurisdiction, ex. gr.: A complaint charged the intention of the defendant to take and sell property, and then proceeded, “thereby subjecting the plaintiffs to great costs and expense, and involving them in expensive and vexatious litigation and a multiplicity of suits, in order to keep control of their property, and prevent an unjust sacrifice thereof.” And the court held that this statement did not allege traversable facts, but only an inference or prediction as to what would be the consequences of the threatened levy, remarking: “If such statements will make a case for an injunction, it can be made in every case.” Clarke v. Ganz, 21 Minn. 387.
A court'of equity will deny an injunction to restrain the collection of taxes when the complainant has an adequate remedy at law; and if he has not, the failure to show this by positive averment constitutes a fatal defect in his application for relief. Duck v. Peeler, 74 Tex. 272.
General allegations of fraud in the assessment, made in a bill to l’estrain the collection of taxes, will be demurrable and furnish no ground for relief. Sterling *107Gas Co. v. Rigby, 25 N. E. Rep. 660. See, also, Shelton v. Platt, 139 U. S. 596; Carlisle v. Stevenson, 3 Md. Ch. 504; Crisman v. Heiderer, 5 Col. 594; Waldron v. Marsh, 5 Cal. 119.
The wJvy and the wherefore, the facts and the reasons showing that the complainant has no adequate remedy at law, and, therefore, is necessitated to come into a court of equity and invoke relief on one or more of the recognized grounds which authorize the assumption and exercise of equitable jurisdiction, must be plainly and distinctly set forth, because: “An injunction being a harsh remedy,, will not be granted * * * except * * * upon positive, averments of the equities on which the application for the relief is based. * * * He (complainant) must * * * allege positively the facts constituting his grounds for relief. Thus, it is well established that the mere allegation of irreparable injury will not suffice to warrant an injunction, but the facts must appear on which the allegation is predicated in order that the court may be satisfied as to the nature of the injury.” 1 High, Injunct. [3 Ed.], sec. 34.
It will not do to plead such general platitudes and legal conclusions as are pleaded in this instance, to wit: “Plaintiffs allege that by the terms of section 25, of article 6, of the scheme and charter of the said city of St. Louis, the said special tax bills, when so signed, certified, and registered, as provided for by the terms of said charter and by the terms of said ordinance 17151,'will become a lien on the property of petitioners hereinbefore described, and will be a cloud upon plaintiffs’ title to said land, and will damage and injure plaintiffs’ title to, and the value of, said land. Plaintiffs allege that they have no adequate remedy at law in the premises, but can only have a proper and adequate remedy and relief in a court of equity, where all such matters are properly cognizable. Plaintiffs further *108aver that unless the defendant, the city of St. Louis, is enjoined and restrained from issuing, registering, and delivering said special tax bills against plaintiffs’ property as aforesaid, the plaintiffs will suffer irreparable injury.” 1 Spelling, Extr. Relf., sec. 658, and cases cited.
Not only do the plaintiffs fail to plead those essential, affirmative, and traversable allegations which authorize equitable interposition, but on the contrary it is alleged in the petition that: “By reason of the repugnance of said ordinance number 17151 to the provisions of the charter of the city of St. Louis, * "* * the said ordinance is null, void, and of no effect * * *; the said contract, etc., etc., is null, void, and of no effect, and the property of these plaintiffs can not in any manner be legally bound for the payment of the cost of reconstruction provided for in said ordinance.” These allegations certainly show an adequate remedy at law, because if the ordinance is void it must be void on its face, when compared and construed with the charter with which it is alleged to be repugnant. And section 25, of article 6, of the charter, of which courts take judicial notice, provides that special tax bills shall be collected of the owner of the land by the contractor “as any other claim in any court of competent jurisdiction.,”
Cases there are where courts of equity intervene and afford an abundant relief, where the proceedings, though actually void, are apparently valid, where parol evidence or loose papers liable to loss or destruction are necessary to support the charge of invalidity; there, a court of equity will, by its decree, remove the cloud cast on the complainant’s title, by the apparently valid proceedings, but no case can be found in the books where a party coming into a court of equity and merely alleging that the proceedings he seeks to enjoin, can-*109eel, vacate, or annul, are “mill, void, and of no effect,” and that he is not “legally bound thereby,” has ever been accorded equitable relief in any of the forms mentioned.
In Lockwood’s case, 24 Mo. 20, “the church did not claim that the assessment was illegal and void,” but only askecl that it be thus declared. And the deed in Bank v. Evans, 51 Mo. 345, was “not void on its face;” on the contrary, the ruling there is put on the express ground that in order to determine the invalidity of the sale ivould require close investigation by a skillful lawyer, into several acts of congress as well as the authority of the courts to regulate such sales. These two cases are but types of others cited by counsel in support of the allegations of their petition now under review.
These direct admissions by plaintiffs in their petition of the nullity of the proceedings they seek to enjoin, cancel, etc., can not but be regarded as admissions overthrowing the very relief they desire to obtain, because, “if the alleged tax has no semblance of legality; if, upon the face of the proceedings, it is wholly unwarranted by law, or for any reason totally void, so that any person inspecting the record and comparing it with the law is at once apprised of the illegality, the tax, it would seem, could neither constitute an incumbrance, nor an apparent defect of title; and, therefore, in law, could constitute no cloud.” Cooley, Taxation [2 Ed.], 779, and cases cited.
Heywood v. Buffalo was a proceeding in equity to have a certain assessment on plaintiff’s land declared null and void, and enjoin the execution of the same. The lower court gave judgment on demurrer against the sufficiency of the petition, and, in commenting on, and affirming, this ruling, in pointing out what were the defects in the petition, the court, among other things, said: “Indeed, it is still the law that a party *110who brings an equitable action must maintain, it upon some equitable ground; and if his cause of action is of a legal and not an equitable nature, he must bring a legal action, or pursue a legal remedy. Where a matter is clearly or prima facie one of legal cognizance, a party must, in order to maintain an equitable action upon it, state clearly facts sufficient to entitle him to equitable relief, and to show that a perfect remedy can not be obtained at law. * * * The complaint * * * should have alleged, distinctly and plainly, that the proceedings were apparently within the powers of the common council, and upon their face were valid, and created a valid lien; and it should then have alleged that, notwithstanding such apparent validity, the proceedings were wholly void by reason of certain extrinsic matters, which should be stated, and which it should appear by the complaint could only be established by their evidence. These facts are the very groimds of the jurisdiction. Apparent validity, and total invalidity in fact, which can only be- established by proof aliimcle. If partial invalidity only is established, no case is made for the interposition of equity to remove a cloud. It is no cloud if the lien is to any extent valid. * * * The doctrine established by the decisions is substantially this, that if the* proceedings are void upon their face, they form no cloud upon title; and no ground of interference by a court of equity. And if they are not void upon their face, but merely voidable or irregular, a court of equity will not take cognizance of them, unless other facts are alleged sufficient to bring the matter clearly within some acknowledged head of equity jurisdiction. This is a sound and salutary rule, which should be steadily adhered to upon considerations of public interest and convenience, if no other. It is not the business of courts to furnish new remedies to parties aggrieved, even though existing *111ones are found inadequate to afford perfect protection or redress. That falls more properly within the province of the legislature. But if they had the power they would hesitate before extending their equitable jurisdiction over all the acts of these inferior bodies, and allowing everyone assessed to come in and litigate as to the validity of his tax, before he should be required to pay it, who could allege some error in making the assessment.” 14 N. Y. loc. cit. 540, 541, 542.
The same idea is reiterated in Townssend v. New York, 77 N. Y. 542, where it is said: “The action is to set aside and cancel the tax, upon the ground that it is illegal and a cloud upon plaintiff’s title to his lands. It is claimed to be illegal solely upon the ground that the law, in pursuance of which it was imposed, is unconstitutional and, therefore, void. No other reason is alleged or claimed for the maintenance of the action. It is a general rule that the owner of real estate must wait until his title is assailed, or his possession is disturbed, or his rights are actually interfered with, before he can invoke the protection of the courts. The law generally concerns itself only with actual wrongs, and not with such as are merely potential. But there are some exceptions to this rule. Courts will, under certain circumstances, entertain actions to remove a cloud upon title to land to prevent future harm. It is not sufficient that there is a formal title or lien creating the cloud. Where the cloud is claimed to be created by a lien, the lien must be apparently valid, and must exist under such circumstances that it may in the future embarrass or injure the owner or endanger his title. But it has been decided many times in this state that where the lien is invalid upon its face, or where the invalidity will necessarily appear ,in any proceeding taken to enforce title under it, then the jurisdiction of a court of equity can not be invoked to set it aside. Then the owner *112must wait until Ms title is actually assailed under the lien, and his defense will always be at hand. * * * If this tax be invalid upon the ground claimed, its invalidity will always appear. The record proceedings and the statutes will show that it was imposed under the law claimed to be unconstitutional. No valid tax can be imposed under an unconstitutional law.”
This view is illustrated by many eases in this state and elsewhere; there are none to the contrary, thus: “The settled rule is, that when a defect appears upon the face of the record through which the opposite party can alone claim title, there is not such a cloud upon the title as to call for the exercise of the equitable powers of the court to remove it. But when such claim appears to be valid upon the face of the record, and the defect can only be made to appear by extrinsic evidence, particularly if that evidence depends upon oral testimony to establish it, it presents' a case for invoking the aid of a court of equity to remove it, as a cloud upon the title. * * * But if in the investigation, in tracing back the title, a defect appears upon the record, then it is evident there is no cloud, for the face of the record furnishes the means of detecting the error, and apprising parties of the true state of the title.” Clark v. Ins. Co., 52 Mo. loc. cit. 276, 277. The doctrine of this case was affirmed in Mason v. Black, 87 Mo. 344.
A petition showing that plaintiff’s property has been levied upon under an execution issued upon a void judgment and asking for an injunction, presents no ground for equitable relief. Fletcher v. Heth, 10 Mo. App. 594. A deed void on its face is no cloud on the title. Johnson v. Cottingham, etc., Co., 8 Mo. App. 575.
“The sale under such judgment is void, and, hence, Johnson’s deed from the sheriff passed no title and is *113worthless. Hence, the petition states too much. It shows the deed sought to be set aside is void, which leaves nothing for a court of equity to do, and shows the plaintiff has a complete and adequate remedy at law. Janney v. Spedden, 38 Mo. 396; Odle v. Odle, 73 Mo. 289. This conclusion settles the case, and it is not necessary to further examine the questions presented.” Holland v. Johnson, 80 Mo. loc. cit. 38.
“All that the allegations of the bill amount to is, that the city and its street commissioner are about to do an unlawful act, that will impose new burthens on appellant, or his property. If these acts are illegal and unwarranted, then any tax or assessment levied for its payment would be illegal and void, and the tax or assessment could not be enforced. The property owners could resist their payment at law. ’ ’ Brush v. Carbondale, 78 Ill. loc. cit. 76.
“Nor will the court, in any case, interfere to avoid sales, or to cancel conveyances, which, of themselves, afford inherent, intrinsic evidence of their own illegality and invalidity. There is no reason for a judicial interference; for such sale, or conveyance, bearing the evidence of its invalidity, can not create a cloud on the title, nor diminish the security of the true owner. It is not capable of being used as an instrument of vexatious litigation; and the lapse of time can not endanger the means of defense against it, if rights under it should be asserted. * * * The complainants were not in possession of the lands; and if they had been, the sale and conveyance under the decree of the court of probate was void. The illegality vitiating them appeared on the face of the record of the court of probate, which must have been produced as the very source and foundation of any right or title claimed under them; and its exhibition only was necessary to insure its eondem*114nation.” Tyson v. Brown, 64 Ala. 244, loc. cit. 249. See, also, Hannewinkle v. Georgetown, 15 Wall. 547; 2 Beach, Mod. Eq. Jur., sec. 558, and cases cited.
In Van Doren v. New York, 9 Paige, 388, it was held that where a valid legal objection appears upon the face of the proceedings, through which the adverse party can alone claim title to the complainant’s land, there is not in law such a cloud upon the complainant’s title as to authorize him to apply to a court of chancery to set aside such a proceeding.
“If the invalidity of that which is alleged as a cloud appears on the face of the record by which it is shown to exist, equity will not interfere.” Meloy v. Dougherty, 16 Wis. loc. cit. 270.
Moreover, relief against unjust and illegal taxation is not an original head of equity jurisprudence. “The attempt to enforce an illegal tax, or to sell property for its satisfaction, does not alone furnish any ground for interference. To entitle a party to relief by injunction he must present a case coming under some established head of the jurisdiction, such as fraud, mistake, prevention of multiplicity of suits, cloud upon title,- or irremediable mischief. This comprehensive rule has been declared in many cases, and has been given practical recognition in nearly every state, and the courts may be said to hold with unanimity that injunction does not lie against the exercise of the power of taxation unless some special reason be shown for equitable interference.” 1 Spelling, Extr. Rel., sec. 642, and cases cited.
If the power to levy the tax, either general or special, exists, and the property be subject to taxation, or to assessment for benefits, mere error and irregularities, according to the better view, should be corrected by certiorari or other appropriate legal proceedings, because equity ought not to interfere with the *115collection of taxes, unless upon a case coming under some acknowledged head of equity jurisdiction. 2 Dillon, Mun. Corp. [4 Ed.], secs. 906, 923; 1 High, Injunct. [3 Ed.], sec. 347.
Nor will a court of equity in instances like the present, sit as a court of errors to review the action of other tribunals, interfere by injunction to correct mere errors of judgment or irregularity, or- the exercise of discretion not amounting to oppression or fraud in making the valuation or assessment. 1 Spelling, Extr. Rel., secs. 652, 653; 1 High, Injunct., supra, and cases cited.
Certiorari is the remedy and affords full and ample means of redress when the proceedings are had before courts and officers of inferior local jurisdiction. Anderson v. St. Louis, 47 Mo. 479.
In the just cited case, that of Living v. St. Louis, 5 Wall. 413, was approvingly followed, where an assessment for benefits was sought to be enjoined, and it was ruled that as a plain, adequate, and complete remedy by certiorari existed, equity had no jurisdiction, and on that ground a demurrer to the jurisdiction was held well taken. To thelike effect see Heywood v. Buffalo, supra, and cases cited; Steines v. Franklin Co., 48 Mo. loc. cit. 176; State ex rel. v. Dowling, 50 Mo. 134.
Now, in this ease, there are no special circumstances specifically and positively averred, such as would bring it under some recognized head of equity jurisdiction; neither fraud nor oppression are charged; the plaintiffs seek relief for themselves alone, and so no question of multiplicity .of suits is involved, nor is there any sufficient allegation showing “irreparable injury,” nor how or in what way the injury is irreparable. What injuries are irreparable is a question to be decided by the courts on facts stated. McKinzie v. Mathews, 59 Mo. loc. cit. 102. And the same may be *116said respecting the general averment of no adequate remedy at law. And if the last allegation were sufficient, it would be met and answered by Anderson’s case, Ewing’s case, and the other cases cited as to the employment of certiorari. For who can doubt that such a writ could have accomplished all that was necessary, taking plaintiff's allegations as technically correct and sufficiently specific?
Besides, plaintiffs are in possession of the land .to be affected, and, if sued, could, on the facts stated in the petition, to wit, that the ordinance is “null, void, and of no effect,” successfully resist any action on the tax bills, and in doing so would not have to resort to parol or extrinsic evidence to make that defense successful. On this point see Michael v. St. Louis, 112 Mo. 610, where Brace, J., said: “In the suits which they complain the city is about to institute for the collection of such tax bills they have a full, complete, and adequate defense of record, without any necessity for resort to extrinsic evidence to make it good, or for invoking the assistance of the powers of a court of equity. ’ ’ This case was followed and approved in Buddecke v. Ziegenhein, 122 Mo. 239, per Burgess, J. See, also, Boyd v. Selma, 96 Ala. 144; Public Ledger Co. v. Memphis, 23 S. W. Rep. (Tenn.) 51.
If these views are correct, the petition is fatally defective in its general structure, and the demurrer, which is really a demurrer to the jurisdiction of the court (Story, Eq. Plead., sec. 473), was properly sustained. Indeed, under the authorities, the lower court would have been amply justified in dismissing the petition of its own motion.
On another ground the petition is seriously defective ; it is this: There is no allegation therein that suit will ever be brought on the bills if issued, or that any threat to that effect has ever been made, nor to the effect *117that the city had threatened to issue such bills. No case can be found where a petition so lacking in such essential allegations has been held sufficient.
“The appropriate function of the writ of injunction is to afford preventive relief only, * * * and it is only to be used for the prevention of a future injury actually threatened.” 1 High, Injunct. [3 Ed.], sec. 23; Ib., sec. 18; McArthur v. Kelly, 5 Ohio, 139; Owen v. Ford, 49 Mo. loc. cit. 437; Beach, Injunct. secs. 428, 34, 17, 1198; People v. Canal Board, 55 N. Y. loc. cit. 396; Guest v. Brooklyn, 69 N. Y. loc. cit. 512; Scribner v. Allen, 12 Minn. loc. cit. 152; Carroll v. Campbell, 108 Mo. loc. cit. 558.
2. Having thus discussed the legal structure of the petition and found it insufficient to warrant equitable interposition, attention will now be directed to other averments in order to ascertain their alleged sufficiency.
The central point of attack made in the petition is ordinance 542, Revised Ordinances, 1887, which provides, among other things, that “the board of public improvements may submit to the municipal assembly a bill for letting in one contract the work of construcing * * * such street and of maintaining it in good condition for a term of years.” This ordinance is claimed in the petition to be ‘ lnull, void, and of no effect,” by reason of its repugnance to the letter and spirit of the charter of- the city, and especially to the letter and spirit of section 27, article 6, of the charter heretofore set forth.
How or in what way ordinance 542 contravenes, either in letter or spirit, any provision of the charter, I have been unable to discover. The universal rule is, that in construing statutes passed by the general assembly of the state, the courts will lean toward a construction which favors and upholds their constitutionality, and *118it would seem that a similar favorable attitude should be assumed by the courts when construing mu/nicipal ordinances, because when speaking of cities, this court has well said: “Their charters are their constitutions, which authorize the councils to act, and a city council is ‘a miniature general assembly, and their authorized ordinances have the force of laws passed by the legislature of the state.’ ” St. Louis v. Foster, 52 Mo. loc. cit. 515; St. Louis v. Boffinger, 19 Mo. loc. cit. 15.
Because, further, such ordinances bear the same relation to the charter, the organic law of the city, as do our statutes toward our general organic law, and, therefore, such ordinances should only be held for naught upon grounds equally good and reasons equally cogent as would suffice for holding a state law void because repugnant to our state constitution. This point has passed into precedent, and received the direct sanction of this court in Quinette v. St. Louis, 76 Mo. loc. cit. 404, where it is declared that the rule as to a supposed conflict between charter and ordinance is the same as between constitution and statute.
In relation to the investigation of the constitutionality of statutes, and the care to be observed in so doing, and the caution to be exercised in declaring them invalid, it has been said: “As a conflict between the statute and the constitution is not to be implied, it would seem to follow, where the meaning of the constitution is clear, that the court, if possible, must give the statute such a construction as will enable it to have effect. This is only saying, in another form of words, that the court must construe the statute in accordance with the legislative intent; since it is always to be presumed the legislature designed the statute to take effect and not to be a nullity.” Cooley, Const. Lim. [6 Ed.] p. 218.
*119“A legislativé act is not to be declared void upon a mere conflict of interpretation between the legislature and the judicial power. Before proceeding to annul, by judicial sentence, what has been enacted by the lawmaking power, it should clearly appear that the act can not be supported by any reasonable intendment or allowable presumption.” People ex rel. v. Supervisors, 17 N. Y. 235.
The author just quoted says, further, on the point: “It has been said by an eminent jurist that when courts are called upon to pronounce the invalidity of an act of legislation, passed with all the forms and ceremonies requisite to give it the force of law, they will approach the question- with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable -doubt. A reasonable doubt must be solved in favor of the legislative action, and the act be sustained.” Cooley, Const. Lim. [6 Ed.] p. 216.
“This court * * * will not declare an act of the general assembly void, as in conflict with the constitution, unless it is so manifest as to leave no doubt on the subject.” Kelly v. Meeks, 87 Mo. loc. cit. 400, and cases cited.
Thus it will be seen, that in order to convict a statute of unconstitutionality the reasons therefor must be so weighty and cogent that if transmuted into evidence, such evidence would be sufficient to convict an accused person of a felony.
Taking this announcement of a fundamental principle of constitutional construction as a guide when applied to ordinances, let us examine ordinance 542 in connection and comparison with section 27, aforesaid, *120of the charter. Repeating that section for convenient reference, it provides: “The assembly shall have no power directly to contract for any public work or improvement, or repairs thereof, contemplated by the charter, nor to fix the price or rate therefor; but the board of public improvements shall in all cases, * * * prepare and submit to the assembly estimates of costs of any proposed work, and, under the direction of the ordinance, shall advertise for bids, as provided for purchases by the commissioner of supplies, and let out said work by contract to the lowest responsible bidder, subject to the approval of the council. Any other mode of letting out work shall be held as illegal and void. * *
Now, how, or in what way, does ordinance 542 conflict with the above section of the charter? There is certainly no prohibition or intimation of prohibition, against there being united in one contract “the work of constructing or reconstructing such street and of maintaining it in good condition for a term of years.” True, the former work has to be paid for by the taxpayer and the latter by the city, but where can you put your finger on a provision of the charter, either a line or a letter, forbidding the enactment of an ordinance which provides for the letting in the same contract of the two kinds of work? Under the authorities cited, and the reasons they give, and the rule they announce, unless you can do this, it is your contention that goes counter to the charter and not the criticised ordinance.
And the assembly does not “directly contract for any public work or improvement or repairs thereof, or fix the price or rate therefor,” simply by enacting such an ordinance as 542, which merely makes timely and wise provision for work to be done in the future in that way, and, therefore, does not conflict with section 27 in that regard. The assembly by literally pursuing *121ordinance 542 conld not, if they would, array themselves against the city’s organic law, as contained in the section under review, because they would not thereby even attempt to confer on themselves a power to contract “for any public work or improvement, or repairs thereof, or fix the price or rate therefor.” This is the only prohibition section 27 contains, and does not prohibit an enactment of an ordinance which permits the letting of two binds of work in the same contract.
But, in investigation of this supposed conflict between charter and ordinance, we are by no means confined to section 27; we may resort to its associate sections of the charter in order to shed light on the point in hand. Clause 2 of section 26, article 3, of the charter declares: “The mayor and assembly shall have power by ordinance to establish, open, vacate, alter, widen, extend, pave, or otherwise improve and sprinkle all streets, avenues, sidewalks, alleys, wharves, and public ground and squares, and provide for the payment of the costs and expenses thereof in the manner in this charter prescribed; and also to provide for grading, lighting, cleaning, and repairing the same, and to condemn private property for public uses, as provided for in this charter; to construct, and keep in repair all bridges, streets, etc., and to regulate the use thereof.” That this section is the repository of a broad grant of power to the mayor and assembly, no one will dispute.
It seems equally indisputable that a distinction is made and taken in the clause quoted between the word “repairing” a street and the words, uto construct and keep in repair” a street. By this clause of section 26, two powers would seem to be indubitably granted to the mayor and assembly, one to “repair” all streets, the other to “construct and keep in repair” all streets. This section is the only one in the charter by which *122the powers in question are conferred; but for it no such powers would be expressly granted. So far as streets, etc., in their repair or construction are concerned, this section is the power-conferring section of the charter.
Now, if we apply to the -two phrases employed in the quoted clause of section 26 a very familiar, and, indeed, a well-nigh universal, rule of construction, we must attribute to each phrase thus employed its separate and appropriate meaning, because, under the rule referred to, the words.used in a charter must be held to have been used with a definite purpose in view, and in furtherance of that object, to have had bestowed on each of them its distinct, individual, well defined and usual meaning; and, if possible, such meaning should be accorded to them. For, plainly, it would have been a vain and useless thing to confer on the mayor and assembly power to provide for “repairing” all streets, and also give them power to “keep in repair” all streets, unless these two forms of expression did not have, and were not intended to have, and to bear, a different and distinctive meaning, and that meaning the one in ordinary everyday use.
In short, the first power conferred is authority for “repairing” streets; the second to “construct and keep (them) in repair. ” The latter phrase, it will be noted, is not “construct or keep in repair” but the copulative conjunction is used, thus linking together the words “construct and keep in repair,” thereby indicating an immediate connection between the two and a junction of authority in the mayor and assembly to provide by ordinance for doing both things at one and the same time. In,short, as authorizing the exercise of a power whereby a single contract should embody within itself the construction and keeping in repair of the proposed work on a street.
*123Now, consulting the lexicographers, we find that the verb “maintain” means “to hold in an existing state or condition; keep in existence or continuance; preserve from lapse, decline, failure, cessation; keep up.” Cent. Dict., Webster Internat. Dict., and Worcest. Dict, to same effect.
If, then, we consult the adjudicated cases, we find that a covenant in a lease to “maintain the buildings” binds the lessee to keep them in proper repair at all times during the term, and the lessor may bring action for breach of the covenant during the term or after its expiration. Buck v. Pike, 27 Vt. 529; 14 Am. and Eng. Encyclopedia of Law, 3.
In Luxmore v. Robson, 1 Barn. & Ald. 584, the lease contained a covenant “that the lessee should and would well and sufficiently repair, and keep in proper repair, all and singular, the buildings” etc., and upon this it was contended for the sued tenant, that the covenant to “keep in repair” would be satisfied by the lessee’s “putting the premises into repair at any time during the term,” and, therefore, no right of action lay during the term; but Lord Ellenbobough, C. J., said: “By the terms of the covenant the lessee is bound to keep the premises in repair; then to keep them in repair he must have them in repair at all times during the term; and if they are at any time out of repair, he is guilty of a breach of covenant, which is the proper subject of an action.”
The case just cited marks out very pointedly the difference in meaning between the words “repair” and “keep in repair-,” the former expression indicating, as declared by the standards of our language, “to restore to a sound or good state after decay, injury, dilapidation, or partial destruction” (Webst. Internat. Dict.), while the latter form of expression means, as decided in that case, to keep the premises at all times *124in repair, and if they fall out of repair, the covenant to keep in repair will be forthwith broken, upon which occurrence, their restoration “to a sound or good state after (such) decay, injury, dilapidation, or partial destruction,” by repairing them, will be no answer to an action for a breach of covenant for letting the premises fall out of repair. Thus showing that the act of keeping in repair is a continuous act; an act of forethought and forework,' which keeps the premises in their then existing condition, and so will not permit them to fall into dilapidation and decay, and thus necessitate the application of the restorative process known as “repair;” a process which ex vi termini imports and implies that the former existing condition had been suffered to lapse, resulting in injury and partial destruction.
So that, the two adjudications already cited, when placed in juxtaposition and compared with each other, and with the definitions of the lexicons, mean neither more nor less than that “maintenance” of a street and the keeping of it in repair mean one and the same thing. If so, who can say that ordinance 542, which permits “a bill for letting, in one contract, the work of constructing a street and of maintaining it in good condition for a term of years,” violates or contravenes the second clause of section 26 aforesaid, which confers a direct authority to pass an ordinance “to construct and keep in repair * * * all streets?” In a word, the charter enjoins the duty; the maintenance ordinance paves and provides the way for its uniform and regular performance.
And in this connection the point is at least not unworthy of attention that ordinance 542, under discussion, was formerly ordinance 12304, approved Febuary 28, 1883, revised without change in 1887; has been in existence over twelve years, and, so far as *125appears, its charterality has never been challenged until now. Consequently, we have the right to assume that under a belief in the validity of that unquestioned ordinance, many contracts have been made and many thousands of dollars have been expended and collected in the performance of work authorized by its terms, and, therefore, such circumstances may be said to have created a rule of property, which, unless moved by the most cogent reasons, we shoúld not readily set aside as invalid, even though the faith in the validity of the ordinance has never received the sanction of an adjudication in its favor. Venable v. Railroad, 112 Mo. 103, and cases cited.
In that case two others were approvingly cited, as follows: In Scanlan v. Childs, 33 Wis. 663, the court says: “The general understanding of a law, and constant practice under it for a period of over twenty years, by all officers charged with the execution of it, unquestioned by any public or private action, is strong, if not conclusive, evidence of the true meaning.” In Packard v. Richardson, 17 Mass. loc. cit. 144, the court say: “A contemporaneous is generally the best construction of a statute. It gives the sense of a community, of the terms made use of by the legislature. If there is ambiguity in the language, the understanding and application of it, when the statute first comes into operation, sanctioned by long acquiescence on the part of the legislature, and judicial tribunals, is the strongest evidence that it has been ‘rightly explained in practice.”
In this instance the scheme and charter went into practical operation in March, 1877, so that ordinance 542 may be regarded as almost a contemporaneous, and certainly a practical, construction of the charter. Sutherland, Stat. Constr., secs. 307, 309, 311. After remaining in existence and in everyday operation as *126long -as it has, unchallenged, a court should not feel inclined lightly to question its validity, even were the reasons in support of that validity less weighty and satisfactory than we judge them to be. We, therefore, deem ordinance 512 valid.
3. We come now to consider ordinance 17151, which is assailed because, first, of its conformity to the previous ordinance, in the letting of work of reconstruction and- maintenance in one contract; second, because it fails to specify the material to be used for maintenance; because, third, an estimate of the cost of such maintenance was not indorsed on the ordinance, and because, fourth, there is a monopoly in the material which the ordinance designates for the work of reconstruction.
We have already said that ordinance 512 was not invalid because of embodying two kinds of work in one contract, but it is well enough to say, before passing to other matters indicated for discussion, that under a statute resembling in its essential features the charter provisions under review, it has been held that the board may let several contracts for improving a street in one. contract to one man (Macadamizing Co. v. Williams, 70 Cal. 531), anditisnoiperceivedhowthere is any material difference in point of principle between the letting different portions of a street to one contractor, in one contract, and letting in one contract to one contractor the reconstruction and maintenance of a portion of a street, where there is no charter prohibition of such sort of letting, as is the case here.
In Trimble v. McGee, 112 Ind. loc. cit. 312, a similar conclusion was reached: “It was alleged that the two ditches were let in.one contract, but it was not averred that they were let at too high a price, or could have been let for a less price in two or more contracts. * '*' * It was not shown, nor is it apparent, that *127appellants or their lands were or could be damaged in any way or to any extent by the fact so alleged.”
To the same effect is Emery v. Gas Co., 28 Cal. loc. cit. 375, where it is held that a resolution of the board to improve a street may include a declaration of intention to both grade and macadamize, the court remarking: “Suppose the board intended to order all the different kinds of work requisite to the full improvement of a street upon a given plan to be done, what sense or reason, in the absence of an express and clear provision to that effect, is there in requiring them to pass and publish a separate resolution for each kind of work when, as to all parties concerned, it can be as well, if not better, done in a single resolution setting forth in connected detail all the improvements intended to be made? Such, it seems to us,- would be the more orderly and systematic method, and therefore most advisable?”
This view has found favor with this court in several instances. Thus, in Morse v. Westport, 110 Mo. 502, where the work was done under a general authority for contracting, building, malting, paving, or repaving streets by levying a special tax against the property owners, with no provision permitting the letting of the work in one contract, an ordinance which required a guaranty of the contractor that he would “keep and maintain the street in a state of perfect repair for a period of five years from and after the completion and • acceptance of the same,” was held valid, this court remarking: “It would seem to be the part of wisdom to require the contractor to give such a guarantee as the ordinance requires, as this would tend to stimulate him to do faithful and honest work; such a provision is-clearly in the interest of, and for the protection of, the property owners.”
So, too, in Gibson v. Owens, 115 Mo. loc. cit. 270, *128this court said: “The further objection is made that the contract required that the contractor should keep the curbing and guttering on the street in proper position and in good repair for six months after the acceptance of the work by the engineer. Under the laws in force at the time the cost of the repairs of curbing and guttering was chargeable against abutting property. That provision of the contract was beneficial to the adjacent property owners and for their protection, and does not affect the validity of the contract.”
In Warren v. Paving Co., 115 Mo. 572, the improvements were charged against the abutting property, and the ordinance did not provide that the “entire contract should be awarded to one person,” as has been said through inadvertent quotation, and yet the awarding of the contract • to one person was held valid, Maoeaelane, J., observing: “The work was really only one improvement, viz.: paving the street. The asphalt was only one part of the pavement, the wearing surface. The board of aldermen may have thought that the work could be done cheaper and in a more satisfactory manner as a single improvement, by one contractor, than by dividing it up into parcels, and awarding it to different persons. No charter prohibition being charged, we must assume that the board acted within its discretionary powers in awarding the contract. Gibson v. Owens, ante, p. 258, and cases cited; State v. Council, 30 N. J. L. 365; Williams v. Mayor, 2 Mich. 560.”
In Schenectady v. Union College (1892), 66 Hun, 179, the city, under its charter, was liable for repairs, and its charter only granted general powers to pave and repair streets. It brought suit to recover the cost of street improvements from the property owner, having made a contract with the contractor, containing this provision: “The party of the second part hereby *129covenants and agrees that it will do all the work required by such ordinance, and this contract, in such good and substantial manner that no repairs thereto shall be required for the term of five years after its completion.” And the city was held entitled to recover, and that the contract did not go further than the ordinance which, under the charter, provided for the pavement” of the streets of the city, the court remarking: “The covenant, therefore, to keep in repair for five years is not an independent obligation, but only a guaranty of the quality of the work contracted to be done.” There that case was distinguished from Maher’s Case (1890), 56 Hun, 81, on the ground that the contract in the latter was entirely different from the one in the former.
So, too, in Rosetta Gravel Co. v. Payne, not yet reported, but a certified copy of which is on file here, under a general grant of power, the court of appeals of Louisiana holds, that: “The power and right of municipal authorities of the city of New Orleans, under section 32 of the city charter, Act 20 of 1882, amended by Act 113 of 1886, through contract entered into by them with an undertaker to furnish material and do work under that section, through such contract to bind the owners of the abutting properties, and the properties themselves, for the payments to be made to the undertaker under said section, in our judgment, carry with them by inevitable implication, the power and right to include in the contract a provision for keeping the work in repair for such period as the city authorities may deem expedient.”
If, then, a city may unite in a contract made for street improvements, the whole cost of which is chargeable against the property owner, a guaranty of the contractor to maintain his work good for a term of *130years, and such, contract and guaranty be held valid, why may not the municipal assembly pass an ordinance providing for construction and maintenance to be let together, charging the cost of the maintenance against the general revenues of the city? And especially so, why may not this be done, where, as here, the charter grants express authority to the assembly to provide by ordinance for “constructing and keeping in repair all streets?” If, in the former case, the junction in one contract of the two matters aforesaid is a provision dictated by prudential reasons the most obvious, as tending to bind the contractor by the strong bond of self interest to do faithful and honest work, why not in the latter? And especially why may this not be done in the present instance, when the city is responsible for repairing under the ruling in the Schenectady case, where, though the city was bound for the repair of the streets, the contractor was required to give bond that he would do his work “in such a good and substantial manner that no repairs thereto shall be required for the term of five years- after its completion?”
Ah! but it is said that such a union in one contract of construction and maintenance would enable the contractor to charge a higher price for reconstruction than otherwise he would, and this at the expense of the taxpayer. But such an argument does not go a hair toward abating by one jot or one tittle the power of the city to pass such an ordinance as 542, because the whole theory of procedure of such arguments is to deny the existence of a power or jurisdiction, because such power or jurisdiction might result in abuse. 1 Story, Const., sec. 425; Potter’s Dwarr. Stat. 215; Powell v. Pennsylvania, 127 U. S. loc. cit. 686. Holding, as we do, the ordinance valid, all question as to *131the powers it contains being affected by their abuse vanishes.
4. Passing, now, to the consideration of ordinance 17151, it is sufficient to say that its validity as authorizing the letting of reconstruction and maintenance in one contract has been sufficiently discussed in disposing of ordinance 542; the arguments which uphold the one, support the other.
Taking up, then, the second point above indicated, is ordinance 17151 obnoxious to the objection, that it fails to specify the material used for maintaining the streets, and, therefore, void?
In answering this question, it is proper to examine the provisions of that ordinance; there will be found designated the materials required to be used in the process of construction. So that when we turn to the sixth section of the ordinance we find that “the cost of the maintenance shall be paid by the city of St. Louis out of the fund set apart annually for street repairs.— Reconstructed streets.” Now, if we attribute to the word “maintain” its hitherto accorded and accustomed meaning, that of keeping in an existing state or condition, keeping without change, whenever the material with which the work of reconstruction is to be done has been designated, this of necessity specifies the material with which the work done is to be maintained, kept up, or held in the original condition it was in when completed by the contractor and accepted by the city. Inasmuch, therefore, as Trinidad lake asphalt was the material with which to do 'the work, so, also, must Trinidad lake asphalt be the material used to maintain it, or keep it in repair. This being the case, it stands both to reason and to lexicography, that the ordinance under review complies with the charter in the matter of designating the material for maintenance, because what the law will imply is as much part and parcel of a statute, ordi*132nance, or contract, as though set forth in terms. State ex rel. v. Board of Equalization, 108 Mo. loc. cit. 242; Sutherland, Stat. Constr., sec. 334, and cases cited.
An unconscious and involuntary recognition of this necessary implication aforesaid, and the legal distinction between maintenance and repairs, is found in plaintiffs’ brief number 1, where it.is said (pp. 13 and 14):
“ While it is to be presumed that, inasmuch as the reconstruction was to be of Trinidad lake asphaltum, and the same contractor was to bid for the maintenance, an inference might be indulged that the material to be used in the maintenance was to be Trinidad lake asphaltum, nevertheless the ordinance does not so 1specify.’ ” This little excerpt may serve to show how difficult it is, even for the most adroit,
“The struggling pangs of conscious truth to hide,”
while endeavoring to .quibble away the plain meaning of plain words.
But when penning that brief, counsel seem to have forgotten that a much broader admission than that just quoted had been made in their petition, for it is there said: “Plaintiffs further state that while the said ordinance does not prescribe that said street, after being reconstructed, should be maintained by the use of Trinidad lake asphalt, yet by necessary implication, and by the fact that the maintenance of said street is coupled with the reconstruction thereof, and required to be let in the same contract and to the 'same contractor, the use of Trinidad lake asphalt in said maintenance is enforced and made necessary.”
If the foregoing is not an admission as to what maintenance means, and as to the nonnecessity to “specify the material to be used” for that purpose, then ordinary language fails to perform its accustomed office. And it would seem that this court should not be very loath to accept a definition which accords, not *133only with established usage and is sanctioned by authority, but which, in their very petition, is confessed by plaintiffs to be the cor rect meaning!
But it is urged that the cost of such maintenance was not indorsed on the ordinance in question. There are several answers to this contention.
a. In the first place, the indorsement on an ordinance of the estimate of the cost of any work is almost a perfunctory matter. This is obvious from the following considerations:
b. There is nothing in the charter requiring the board to keep within the estimate when it comes to awarding a contract for work.
c. The estimate when indorsed, is not to be followed; the contract may be let for a less or a greater sum. This shows that the requirement of the indorsement of the estimate is, at best, but directory, and not of the essence of the thing to be done. Where this is the situation, the failure to do a nonessential thing does not invalidate that which is essential and which is done, and this upon the principle of the maxim, “Utile per inutile non vitiaüir.”
This point finds illustration in many cases and meets nowhere with denial. Thus, in Cape Girardeau v. Riley, 52 Mo. loc. cit. 427, this court said: “ ‘The course required to be observed in the performance of an act is not always of its essence or vitality. When an act is directed to be done in a particular way, the direction may be merely directory — that is, it is not of the essence of the act, but the act may stand in law notwithstanding the direction was not strictly observed. This is a familiar principle. * * * All we design to hold is that there are forms to be observed in the enactment of laws; that the members of the legislature are sworn to observe those forms, and yet, if they are violated, the constitution never intended that their acts *134should be void.’ ” (Railroad v. Governor, 23 Mo. 353).
“If the provision is to be held as directory only, and not mandatory, the rule is that it may be disregarded without rendering the act void. The rule declared by Lord Mansfield in Rex v. Loxdale (1 Burr. 447) that, ‘there is a known distinction between circumstances which are of the essence of a thing required to be done by an act of parliament, and clauses merely directory’ has been followed by a long train of cases, and is now universally recognized. And where the language used does not import that it is of substance, the clauses of a law directing its observance are regarded as directory simply, for that is directory which is not of the essence of the thing to be done.” To the same effect is St. Louis v. Foster, 52 Mo. loc. cit. 514, et. seq.
In People ex rel. v. Supervisors, 4 Seld. 317, Willard, J., observed: “The provision of the constitution requiring the question upon the final passage of a bill to be taken immediately upon its last reading, and the yeas and nays to be entered on the journal is only directory to the legislature. There is no clause declaring the act to be void if this direction be not followed.”
In this case it will be observed that section 27 of article 6 of the charter does not declare that the failure to indorse an estimate upon the ordinance shall invalidate the ordinance. The section does say that “the board shall, in all cases, except, etc., prepare and submit to the assembly estimates of costs of any proposed work, and under the direction of the ordinance shall advertise for bids, as provided for purchases by the commissioner of supplies, and let out said work by contract to-the lowest responsible bidder, subject to the approval of the council. Any other mode of letting out work shall be held as illegal and void.”
It will be here noted that the wording of the declaration of nullity only extends in terms to “any *135other mode of letting out work,” which can only refer to the manner of contracting for the doing of work, advertising for bids, etc. Had the section declared that any ordinance- which fails to comply with the preceding requirements of the section should be illegal and void, a different question would be presented.
In Nowell v. Mayor, 9 Exch. 456, the precise question here being considered was presented, and even more prominently presented, for there the act of parliament declared that every contract so entered into is binding on the board, provided “that, before contracting for the execution of any works under the provisions of this act, .the said local board shall obtain from the surveyor an estimate in writing, as well of the probable expense of executing the work,’’.etc. No estimate, as required, was obtained from the surveyor, and this fact was specially pleaded as a defense, but it was ruled peí Pollock, Chief Baron, with whom concurred Parke, Alderson, and Martin, BB., that the proviso did not constitute a condition precedent, but was merely directory. Of like effect is Matter of New York, etc., School, 47 N. Y. 556. State ex rel. v. Mead, 71 Mo. 266, enunciates the same principle. See, also, Saleno v. Neosho, 127 Mo. 627, of similar purport.
The foregoing authorities authorize the conclusion that the failure to indorse an estimate of the maintenance on the ordinance was not a fatal omission; at the worst, it was but a nonessential irregularity.
Other reasons conduce to the same result. The petition alleges that the board had made it an unwritten law for their guidance, and had verbally announced it, that no bid for maintenance would be considered or recommended by the board, which should exceed fifty cents per square. This, it would seem, was well understood by all contractors, and, at least, there is no allegation that all proposed contractors were not fully *136aware of the existence of such rule. If so, such-a rule well known and well understood would be equivalent to the filing of specifications in the office of the city clerk, and then referring to them in the ordinance, and this was held sufficient in Becker v. Washington, 94 Mo. 375, and this on the principles of id cerium, etc. The same principle finds recognition in Moran v. Lindell, 52 Mo. 229; Sheehan v. Gleeson, 46 Mo. 100, and in the more recent case of Cole v. Skrainka, 105 Mo. 303.
Here the ordinance calls for maintenance which was recommended to the council, and specifies that the cost thereof shall be paid by the city out of the fund set apart annually for street repairs, and the contract conformed to the ordinance, and was approved by the council. This, under the authorities cited, was tantamount to an indorsement of the estimate of the cost for that purpose on .the ordinance. And the board did estimate the cost of maintenance in its general announcement applicable alike to all maintenance ordinances, that no higher bid than fifty cents per square would be in any case accepted. Who shall say that such announcement thus made, in the absence of any fraud charged, was an abuse of that discretion of the board which the law has confided to them, and to them alone! And is this not especially the case where, as here, the petition admits that such price is uat or about the cost” per year of such maintenance!
." Had the ordinance in terms alleged the price as heretofore stated, and that no greater price than fifty cents per square would be allowed, this would certainly have been definite enough, and certainly it could not be less definite under the general rule and general and well understood announcement as aforesaid. The law deals with the substance of things, not their shadows, and the reason of it is the life of it.
*1375. But granting that ordinance 17151 did not comply with the charter as to indorsement thereon of an estimate for maintenance, does it thence follow that the whole ordinance is null? It must be remembered that the present ordinance separates in distinct sections the work of reconstruction and that of maintenance, and that the contract conforms to it. In such a condition of affairs, many a statute, valid in one portion, but invalid in another and separable portion, has been held valid as to the former, but invalid as to the latter. This is the immutable rule where, as here, the eliminable section is not so closely connected with the valid section as to preclude elimination of the former because of the fact that the valid is so blended with the invalid that both must stand or fall together as an entirety, incapable of diminution without entirely defeating the legislative intent, when framing the statute as a whole. State v. Clarke, 54 Mo. 36; State v. Williams, 77 Mo. 313.
A like rule of elimination is applicable to municipal ordinances. St. Louis v. Railroad, 89 Mo. 44; Railroad v. Railroad, 105 Mo. 590; Lamar v. Weidman, 57 Mo. App. 514; 1 Dillon, Mun. Corp. [4 Ed.], sec. 421.
The rule mentioned finds enunciation in the declaration: “For the common law doth divide according to common reason; -and having made that void that is against law, lets the rest stand.” 2 Kent [13 Ed.], 468. An analogous rule is applied even in indictments for the highest crimes, by rejecting the surplusage. State v. Meyers, 99 Mo. loc. cit. 114, and cases cited.
“When the statutory proceedings necessary to secure a tax bill have not been observed in some particulars, the tax has been held invalid only as to what was done outside the authority of law. Neenan v. Smith, 60 Mo. 292; Farrar v. St. Louis, 80 Mo. 393.” Johnson v. Duer, 115 Mo. 379.
*138Under the authorities, the maintenance section (6) of the ordinance may ha stricken out and still leave those sections which provide for reconstruction intact. So that striking out the objectionable section which relates to maintenance, enough of the ordinance will still be left to hold the reconstruction portion of it entirely valid, and the contractor may enforce his claim for compensation for reconstruction against the abutting property owner. And even the objectionable words of a section of a statute may be stricken out, and yet leave the unobjectionable and separable portions thereof remaining valid. This is the doctrine of all the books, and has found forcible and apt illustration in two quite, recent cases: Leep v. Railroad, 25 S. W. Rep. loc. cit. 76, 85; Railroad v. Jones, 149 Ill. loc. cit. 387. Judge Cooley announces the same view. Const. Lim. [6 Ed.], 211, 213.
Besides, if the portion aforesaid of the ordinance be rejected as invalid, then a case is presented of partial invalidity; but, “if partial invalidity only is established, no case is made for the interposition of equity to remove a cloud. It is no cloud if the lien is to any extent valid. ’ Heywood v. Buffalo, supra (14 N. Y. loc. cit. 542).
6. In regard to the point that the defendant company had a monopoly of the material required in the ordinance and contract, to wit, Trinidad lake asphalt, and, therefore, was the sole bidder under the ordinance, and could have no competitor, it is quite sufficient to say that the point now made was formerly made in Barber, etc., Co. v. Hunt, 100 Mo. 22, but unsuccessfully, this court holding that, notwithstanding the provisions of section 27 of the charter that the. board of public improvements should “let out said work by contract to the lowest responsible bidder, subject to the approval of the council,” this would not *139prevent the board from contracting for a species of work covered by letters patent.
The point was first thus ruled by Barclay, J., at nisi prius and our judgment in'the case was simply in affirmance of his prior decision and opinion. To the same effect see Transfer Co. v. Huling, 22 Mo. App. 654.
In the former opinion herein, the right of the city in the premises as heretofore recognized was reaffirmed. So that this point must be considered as settled.
In intimate connection, however, with the subject of monopoly are some matters of pleading hitherto unnoticed or undeveloped which it is our purpose briefly to discuss.
In wandering through the wilderness of words of the petition, there is one idea which is the dominant one; it is the idea of “monopoly.” It is the warp and woof of' the plaintiffs’ complaint. It is the gravamen of their grievance. This fact stands forth conspicuous in most parts of the lengthy petition; without it that petition would have no basis on which to rest. But this court has decided that such monopoly is valid, and with this element eliminated what becomes of plaintiffs’ case as made by the petition1? It is not therein pretended that if the ordinance and contract respecting the use of Trinidad lake asphalt are to stand, as valid, any lower bids for the performance of the work of reconstruction could be obtained; so that the whole matter centers and hinges at last upon the validity of the use of that particular material. That use being held lawful, it is not averred that any lower price could be obtained from any other bidder, but on the contrary the complaint as stated in the petition is that as long as the Asphalt Paving Company has the ownership or control of the Trinidad lake asphalt “there can be no competition’ ’ and ‘ fit is of necessity the sole and *140only bidder on all such contracts,” and “was of necessity the only bidder for the work of reconstruction on said Jefferson avenue; and the said company was practically given a monopoly and exclusive control of other material,” etc. And it is further stated that: “By so limiting the reconstruction of its streets to the material known as Trinidad lake asphalt, all such reconstruction is thrown into the hands of the defendants, the Barber Asphalt Paving Company, which results in the city and its property owners being required to pay a larger price for such reconstruction than they would have to pay if the material for reconstruction were not limited to Trinidad lake asphalt.”
Granting this to be true, how is this consequence to be escaped so long as the particular material is owned by one party, and that party is employed, and, it must be conceded, lawfully employed, by the board of public improvements to use that material in the process of reconstruction?
So that the whole matter comes back to the simple question of the monopoly of the material, and this holds good. Now, if, as has been decided, it is perfectly competent for the city to contract with one who is necessarily the sole bidder, because the sole owner of a certain material, who is to determine what is the proper and reasonable price to be paid for reconstruction?
Under the provisions of section 27, article 6, of the charter, the power is delegated to the board of public improvements to let out the work “to the lowest responsible bidder subject to the approval of the council.” And with that board, subject as aforesaid, is dodged the authority, judgment, and discretion to determine who is the lowest responsible bidder; and with that discretion and judgment — absent fraud and collusion, neither of which are charged against the *141board, assembly, or council — the courts will not, indeed can not, interfere. And the presumption is that the city authorities have done their duty and have not abused their discretion. Elliott, Roads and Streets, 410, 411; State ex rel. v. McGrath, 91 Mo. 386; Clapton v. Taylor, 49 Mo. App. loc. cit. 123.
In Morse v. Westport, 110 Mo. 508, it was said: “The authorities of a city are invested with a large discretion in determining the necessity or expediency of ordinances they shall adopt; and when those powers are exercised within the bounds of reason and apparent necessity, they should not be held null by the courts. Corrigan v. Gage, 68 Mo. 541.”
In a later case, Macfaelane, J., speaking for the court observed: “In the performance of duties in which discretion is lodged with the governing authorities of a city, we think objections to the methods adopted by them, which, are within such discretion, should be made before the work is done, unless fraud or collusion is shown. It would be unjust to a contractor who has completed an improvement in full compliance with a contract awarded him by the board of aldermen, which is within the general powers conferred upon it, to refuse payment for the simple reason that the courts may conclude that the means or methods adopted by the board were not of the best or cheapest. If contracts could be vacated for such reasons, all security to contractors would be destroyed and the cost of improvements necessarily increased in order to insure against such contingencies. Sheehan v. Owen, 82 Mo. 464; Ross v. Stackhouse, 114 Ind. 200; Cole v. Skrainka, 105 Mo. 309; Gibson v. Owens, ante, p. 258; Morse v. Westport, 110 Mo. 502; Johnson v. Duer, ante, p. 368.” Warren v. Paving Co., 115 Mo. loc. cit. 580.
Again, recurring to the question of maintenance once more, it is not alleged that the price bid by *142defendant company for maintenance is les.s than the work can be -done for; the allegation is, “about the cost thereof ’ etc., which may very well include and mean something more than cost, indeed, & profit to the contractor therefor. Nor is there a statement in the petition that anyone would have bid less, or indeed, could, in view of the monopoly aforesaid, have lid less, because of the insertion of the maintenance clause in the ordinance which authorized the improvement. Nor does the petition allege that plaintiffs have been damaged to the extent-of a penny by reason of the failure to indorse the maintenance clause on the ordinance. In the circumstances, it is not seen how plaintiffs have been injured; if they have not, they certainly have no ground of complaint, and no standing in a court of equity.
7. Complaint is made that the notice published for the time required by law by the board of public improvements of the intended meeting to consider the question of the reconstruction of certain streets, among them the one involved in this case, was insufficient upon the ground that it specified asphaltum, and not Trinidad lake asphaltum, as the material to be used on the proposed work.
Inasmuch, however, as section 14 of article 6 of the charter is the only authority concerning the publication of notice, in such circumstances, and no requirement of the specification of any material -is mentioned therein, and as the notice in question contained all that was necessary, the failure to -specify Trinidad Lalce asphaltum can not be deemed a defect 'in such notice; it simply contained more than was required.
8. In the case at bar there can be no doubt that the board of public improvements acquired jurisdiction, thorough and complete, to have the work of reconstruction performed. If anything irregular inter*143venecl, it was in relation to the maintenance and to that alone; but that, under the authorities, was but an irregularity at the worst, and could not overthrow the jurisdiction previously acquired, nor defeat and render valueless the bill for compensation for valuable services rendered whereby the property of plaintiffs has been greatly benefited and enhanced in value.
a. In such circumstances, where the party complaining has stood by and seen the beginning, progress, and completion of the work, costing large sums of money invested on the faith of the validity of the ordinance and consequent contract, he will not be allowed at that late day to attack the validity of the assessment, and all of its precedent proceedings, and thus get something for nothing; thus “reap where he has not sown, and gather where he has not strewn.” This is illustrated in many cases, and denied by none.
Thus, in a proceeding to enjoin the collection of certain special taxes, it is said: “Could the plaintiff in this action complain of any irregularity in levying the taxes or the assessment of the property? He stood silently by and saw the old sidewalk repaired and all the new ones built, before he made any complaint. He knew of the city ordinances, and without objection permitted the expenditure of large sums of the public money; saw his property benefited and enhanced in value by the building of long lines of sidewalk in front of his property fronting these streets, and after all the work had been completed he complains of irregularities in order to defeat the collection of taxes to pay in part for these improvements. If he wished to test this question, he should have done so before the work was finished. He ought not to be allowed to do it now.” Ritchie v. South Topeka, 38 Kan. loc. cit. 374.
In another proceeding instituted by the plaintiff and twenty-four others to restrain the execution of certain *144tax deeds and to have the special assessments declared illegal and void and canceled on the county records as clouds on plaintiff’s titles to their respective tracts of land, the court said: “They waited until it (improvement) was done so that they could reap the benefit in the enhanced price of their lands. * * * They do not offer to do equity by paying what is justly due, but seek to be relieved entirely from liability. This can not be permitted in a court of conscience. The burden of constructing the ditch must be borne by some one or more, and it is but justice that those receiving the benefit should assume the obligation. In Barker v. Omaha, 16 Neb. 269, this court required a lot owner who sought to enjoin the assessment for want of notice to do equity by paying the amount which his property had been benefited by the improvement. The same rule will be applied in this case.” Darst v. Griffin, 31 Neb. loc. cit. 673.
In this court the same doctrine has • been announced where plaintiffs instituted a proceeding in equity to cancel and set aside a special tax bill which had been properly issued to the defendant in payment for work done, etc., in reconstructing a street. The circuit court found the issues for the defendant and dismissed the bill, and on appeal this judgment was affirmed, in the court of appeals, and also here. This court, after discussing cases where the defect was jurisdictional, proceeds to discuss others differing therefrom, where the defect was not of such a radical nature, remarking: “On the other hand, it was held,- in a suit to collect the cost of macadamizing a street, that a substantial compliance with the law must be shown, but that an observance of all the formalities prescribed by ordinance would not be required. City of St. Joseph v. Anthony, 30 Mo. 538. Again, this courts said, in Sheehan v. Owen, 82 Mo. 458: ‘We are not inclined to *145turn a plaintiff out of court, who has given his time and expended his money in the improvement of their property, on mere technicalities which in no manner affect the substantial rights or interests of the parties. If, in any material respect, the ordinances of the city bearing upon the question involved had been disregarded by the city authorities or the plaintiff, his suit on his tax bill could not be maintained.’ These cases are sufficient to show that this court has never adopted the extreme view that, in order to recover for these local improvements, the plaintiff must show a literal compliance with all the provisions of the ordinances. Distinction must be made between those matters which affect the substantial rights of the parties and those which are formal or directory.” Cole v. Shrainka, 105 Mo. loc. cit. 309.
In Gibson v. Owens, 115 Mo. 258, this court, by Macfarlane, J., ruled that: “Where all the jurisdictional steps which authorize a contract for a street improvement have been taken, a property owner, who has made no objection till the work has been completed and has received the benefit of it, is estopped in a suit on a special tax bill therefor to question the validity of the action of the proper officer in awarding the contract.”
In ‘another case, when speaking on the point in hand, it was observed by the same learned judge: “When the relief is not sought until after the work has been completed, at a great cost to the contractor, and when the complaining landowner has received the benefits of the improvement, the relief should not be granted except upon an exceedingly strong showing. As was well said by Elliott, O. J., in a recent Indiana case: ‘The assessment is made upon the theory that the benefit to the property is equivalent to the expense. *146The owner, therefore, receives a thing of value, and he ought, in equity and good conscience, to pay for it, notwithstanding the fact that the local officers may not have obeyed the statute in every regard. It is just to protect his title when he offers to pay for the things of value rendered him in the form of the benefit resulting from the improvement; but it is not just to relieve him from paying the assessment because the local officers have made mistakes.’ Jackson v. Smith, 22 N. E. Rep. 432.” Johnson v. Duer, 115 Mo. loc. cit. 378.
A distinguished author touching the topic under discussion, says: “Irregularities or errors not jurisdictional can not ordinarily be made available in a suit for injunction. The question whether the work has been done according to contract is one to be tried at law and not in injunction proceedings. In a suit for injunction the question whether the yeas and nays were ■taken on the passage of the ordinance directing the improvement can not be litigated. It may safely be affirmed, without multiplying illustrations, that where nothing more than errors or irregularities in the proceedings appear, an injunction will not be awarded, unless it is applied for before the work has been done, and even then the writ will not issue if the errors are not of a material character, nor will it issue if there is an adequate remedy at law.” “In cases where there is jurisdiction, property owners may be estopped from questioning the validity of the proceedings of the highway officers by standing by and permitting the work to be done without interposing any objection. The weight of authority is very decidedly in favor of the rule that where there is jurisdiction the property owner who sees the improvement made and offers no objection until after the work has been done can not defeat the assessment upon the ground that the pro*147ceedings have not been regular.” Elliott, Roads and Streets, pp. 442, 418, 419.
Numerous other authorities attest and enforce the just and reasonable rule here announced.
b. And in cases like the present, a party who desires redress from a court of equity must act promptly; he must ask for injunctive relief at or before the inception of the contemplated work. In a proceeding to enjoin the collection of certain assessments for street improvements, it was pertinently observed: “The property owners could not stand by and see the improvement made without making any effort, by injunction, to prevent it, and then, after the work is done, or nearly done, refuse to pay for it. This rule has been applied by this court in several cases very similar to this one. Hellenkamp v. The City of Lafayette, 30 Ind. 192; Palmer v. Stumph, 29 Ind. 329; Lafayette v. Fowler, 34 Ind. loc. cit. 146.
c. Besides, it has also been ruled that a mere notice or threat to the contractor of intention to institute legal proceedings against him if he goes on with the work, will count for nothing, nor relieve the notifier of his subsequent laches or acquiescence in seeing the work progress to completion. Traphagen v. Mayor, 29 N. J. Eq. loc. cit. 209; Easton v. Railroad, 9 C. E. Green, loc cit. 57.
Alike observation was made by Burgess, J., in Planet Property, etc., Co. v. Railroad, 115 Mo. loc. cit. 620, as to the ineffectuality of notice in similar circumstances, and of the necessity of resort to preventive measures. This case is approvingly referred to, oh this point, in 1 Beach, Injunction, section 42.
Accepting these rulings as correct, the notice in writing given by plaintiffs to the contractor, at the beginning of the work, that they would contest and *148deny the validity of ordinance 17151, etc., etc;, etc., should be held as without any legal force or effect.
And certainly it would be very hard on, and very embarrassing to, a contractor, if, after he had entered into a contract and given bond for its faithful performance, he could be stopped from going on with the contract work, by simply notifying him not to do so, when he wouldbe held liable on his bond, also, if he failed to comply with his contractual obligations. If a party desires to stop the proposed work, or to cancel the whole proceedings, he had just as well initiate proceedings by injunction first as last. A court of equity would certainly.look upon him with more favor, did he resort to preventive procedure, than if he leisurely delayed action until rights then incipient had ripened into rights which a court of equity will not willingly disturb.
d. Furthermore, the recital heretofore of the previously stated facts herein, shows that the contractor is at least entitled to payment for the work of reconstruction; but there is no tender thereof, nor offer' to pay same, in the petition. This failure makes the petition demurrable. Without such tender or offer in the petition to pay what is justly due, a court of equity will refuse to grant relief either by injunction or otherwise, but will dismiss the petition, on the ground that it states no reason for equitable interposition. Board of Com’rs v. Elston, 32 Ind. loc. cit. 34; Fanning v. Dunham, 5 Johns. Ch. loc. cit. 143; Powell v. Hopkins, 38 Mo. loc. cit. 13; Corby v. Bean, 44 Mo. loc. cit. 381; High, Injunct., sec. 76; Johnson v. Duer, 115 Mo. loc. cit. 382; Darst v. Griffin, 31 Neb. 673, supra.
In Pennsylvania, this case arose: On a bill filed for the cancellation of a lien and for an injunction, the plaintiffs-sought to restrain the collection of the lien filed against them for grading, curbing, and paving a *149street, and to ■ secure the cancellation of the lien. Judgment had been entered on the lien in a court of law, but, could not be enforced by reason of some defect in the statute, which had been held unconstitutional as to the foot-front rule so far as concerned rural property, and cancellation was asked as to such lien. The property of plaintiffs had been greatly enhanced in value; but they stood on their strict legal rights, and asked the removal of the lien as a cloud on their title, without paying or offering to pay what was justly due, and because of this failure their bill was dismissed as stating no equity, the court remarking: “The plaintiffs have strenuously resisted all efforts to collect the cost of this improvement or any part of it, and have neither contributed nor offered to contribute their equitableproportion toward it. They have waited until their lands have become practically urban, and are in demand for building purposes in consequence of the work done by the city, and now they come into a court of equity and ask the court to enjoin the city against making any further effort to enforce its lien for the work which has brought their lands into market at greatly increased prices, and that the lien be canceled so that they make a title to purchasers free from all future liability therefor. It is incumbent on one who seeks equity to do equity. The plaintiffs have derived great benefit from the expenditures of the city on Forbes street, for which they have paid nothing. If they have made any effort to do equity, to settle upon. any fair and conscionable basis with the city, the evidence fails to disclose it. They stand, so far as the bill or the report of the master informs us, upon their strict legal rights. * * * It may be that the rule they invoke will prevent the enforcement of the lien in the court in which it is entered. If so, a court of law will apply the rule; but we must leave them to such *150relief as a court of law can give, until they can present some equitable ground for our interference. It is neither against law nor good conscience for the city of Pittsburgh to seek compensation for its expenditures in grading, paving, and curbing Forbes street.” Pittsburgh’s Appeal, 118 Pa. St. 466, 467.
For the foregoing reasons it seems to us that the demurrer to the petition was well taken; that the petition neither in its general structure, nor in its more particular allegations states any ground for equitable relief, and, therefore, that the judgment of the circuit court should be affirmed.
The foregoing remarks were addressed to the opinion of this court as first announced, in this case, which appeared in 27 S. W. Rep. 447. Since my former remarks, however, were written and read, a new opinion has been formulated and read by the same learned judge who wrote the first opinion, touching which I desire to offer some additional obeservations which I deem pertinent and responsive thereto, although, in so doing, I may have to thresh over a good deal of old straw, for which, unfortunately, no patented thresher has yet been invented.
1. And first, as to the demurrer to the petition herein:
No lawyer doubts the hackneyed assertion that a demurrer admits for the purpose of the demurrer as being true the allegations of the petition against whose sufficiency the demurrer is directed; but it is a truism equally as trite as the former, and as well understood by lawyers, that no allegations in a petition are admitted by the demurrant to be true, unless “well pleaded.” Bliss, Code Plead. [3 Ed.], sec. 418; Com. Dig., Pl. Q. 6; 1 Chit. Pl. [16 Am. Ed.] *613, and cases cited.
Mere statements that a cloud will be cast on plaintiffs’ title to certain land, or that plaintiffs will suffer *151irreparable injury, or that plaintiffs have no adequate' remedy at law, are but statements of legal conclusions, and sucb statements not being statements of isstiable facts, being mere conclusions of law, are treated as no statements at all, and, therefore, obnoxious to attack by general demurrer. Bliss, Code Plead. [3 Ed.], sec. 413, and note, secs. 210, 212; Craft v. Thompson, 51 N. H. loc. cit. 540; McKinzie v. Mathews, 59 Mo. loc. cit. 102.
Under our. code, the facts in a pleading are constitutive, and, in order to be proved, must be distinctly alleged. Pier v. Heinrichoffen, 52 Mo. 333, and other cases. Every substantial fact which the plaintiff, in order to recover, must prove, he must, also, allege so that an issue can be made thereon. Lanitz v. King, 93 Mo. 513.
Chitty says: “An averment signifies a positive statement of facts in opposition to argument or interference.” Yol. 1, 351.
In paragraph 1 of my former opinion, I have stated that no case could be found reported where any court had held that injunctive relief should go, where the party applying therefor has alleged in his pleading that the proceeding he sought to enjoin or cancel are “null, void, and of no effect,” and that he is not “legally bound thereby.” Since expressing this view, it has been my good fortune to encounter a similar view expressed in Russell v. Interstate Lumber Company, 112 Mo. 40. There the plaintiffs alleged that a threatened sale under execution would cast a cloud on the title to property about to be sold. He also made further allegation that the judgment and execution were void for want of jurisdiction, and because of other grounds appearing in the record of the suit to enforce the mechanics’ lien, and upon such allegations an injunction was asked. The lower court dismissed the petition as containing no *152equity, and, on appeal to this court, Brace, J., speaking for this court in affirming the judgment, said:
“From these facts substantially set out in the petition, the plaintiff'therein deduces the conclusion, and avers: That said judgment and execution are null and void, because said Harford and Groodin, at the time the judgment was rendered, had no interest in the property, and the ‘court had no jurisdiction over the subject-matter of said suit or the persons of the defendants against whom judgment was given” nevertheless, he avers that the sale of the property will cast a cloud upon his title; wherefore he prays that the sale be restrained. If the deduction drawn by the pleader be correct, that the judgment is null and void for these reasons, more particularly assigned in his brief, as: That the suit was dismissed as to Harkness & Russell before judgment; that the lien was not verified, as required by law, and that the defendant Harford was not legally summoned therein — all of which facts are necessarily matters of record in the lien suit, under the judgment in which the defendant alone • is shown to have, or to claim, any right whatever in the premises; then the plaintiff’s interest can be in no way-injuriously affected by the sale, at which the purchaser can only acquire just such title as the judgment of the lienor warrants. The plaintiff, upon his petition and proof, shows no ground for the interposition of a court of equity by way of injunctive relief, as prayed for. He will be in just as good a position the day after the sale is made as he was the day before.”
But it is well enough before entering further upon a discussion of the merits of the petition and the pertinency of the authorities bearing on the point in hand, to lay a premise by asking and answering this question: What is a cloud on title? And the answer is: “A cloud upon title is a title or incumbrance apparently *153valid, but in fact invalid.” 2 Am. and Eng. Encyclopedia of Law, 298, and eases cited.
In order, therefore, to make a petition good, which seeks to remove a supposed cloud, it must be made to appear by facts alleged that it is really a cloud that is sought to be removed; this could only be done, in the language of Heywood v. Buffalo, 14 N. Y. 541, supra, by alleging, “distinctly and plainly, that the proceedings were apparently within the powers of the common council, and upon their face ivere valid, and created a valid lien,” and the complaint “should then have alleged that, notwithstanding such apparent validity, the proceedings were wholly void by reason of certain extrinsic matters, which should be stated, and which, it should appear by the complaint, could only be established by other evidence.”
Of the doctrine asserted in the quotation just made, I here venture the assertion that it has never been doubted, denied, or even so much as questioned by intimation or suggestion, by any authority on equity jurisprudence; that doctrine indeed is buttressed by the fundamentals of common sense, the logic and science of good pleading, and by a felicitous accuracy of perception which is able to distinguish between specific allegations of fact and lumping conclusions of law, between the validity of the former and the indigenous insufficiency of the latter. Of course there are cases to be found like that of Lockwood v. St. Louis, 24 Mo. 20, where utterance is given to the shopworn platitude that equity will enjoin a sale of real property where it is about to be sold for taxes assessed by a municipal corporation, on the ground that the contemplated sale will cast a cloud on the title, where in similar circumstances equity will refuse such relief in respect to personal property. No one doubts or denies this doctrine; but it is one thing to say that a court of equity will *154enjoin a sale in order to prevent a cloud from being cast, and quite another thing to define and determine what are the requisites of a petition considered solely as a pleading, which seeks the equitable relief aforesaid.
Obviously, the assertion of the general and undisputed doctrine that equity will prevent by injunction, etc., or remove by cancellation, etc., a cloud on title, has no pertinency or relevancy to questions which relate to the component parts which can only validly constitute a petition which will stand the test of judicial scrutiny, as it invokes the application of the general doctrine to the particulars of specified facts.
Through inadvertence sometimes this court, without its attention being called to the fact, has overlooked the vital characteristics of a bill to enjoin a sale which would cast a cloud; but whenever its attention has been directed to the point it has never failed to declare that the constituent elements of a cloud on title are apparent validity, associated with real, though hidden, invalidity, an invalidity which could only be disclosed by evidence aliunde the record on which the proposed or perfected sale had occurred or would occur. This is exemplified in Harrington v. Utterback, 57 Mo. 519, where the plaintiff; acquired a homestead, and, after such acquisition, his homestead was sold under execution, and defendants becoming' the purchasers placed their deed on record, and it was ruled that the deed of defendants was a cloud which it would require parol evidence to .remove, and thus show that their apparently valid title was really invalid, and so plaintiff was afforded relief as prayed. This case was approvingly followed in that of Gardner v. Terry, 99 Mo. 523, where a proceeding was instituted to prevent a sale under a deed of trust, and the petition being held in the lower court insufficient on demurrer, it was said, *155loc. cit. 527, “The present invalidity of the deed of trust does not appear from the face of the records. It only appears by a resort to other evidence, and parol evidence at that; so that there can be no objection to the petition on the ground that the proposed sale will be void on the face of the records. It is to the interest of all parties that the present validity of the deed of trust should be settled before a sale thereunder, and our conclusion is that the demurrer should have been overruled.”
This quotation not only reiterates the established doctrine aforesaid, but enforces by clear and indubitable intimation and recognition what issaidin Michael v. St. Louis, 112 Mo. 610, and Russell v. Lumber Co., Ibid., 40, supra, that it would have been “an objection to the petition” if the “proposed sale ivould be void on the face of the records.” To the same effect see Clark v. Ins. Co., 52 Mo. 276; Holland v. Johnson, 80 Mo. 38; Odle v. Odle, 73 Mo. 289; Janney v. Spedden, 38 Mo. 396; Mason v. Black, 87 Mo. 344; Cooley, Tax. 779; and Heywood v. Buffalo, supra.
In Peirsoll v. Elliott, 6 Pet. 95, Chief Justice Marshall, speaking for the court, dismissed the bill because the deed therein mentioned being void at law, for matter apparent on its face, the plaintiffs had not shown any circumstances which disclosed a case proper for a court of equity to relieve against such void deed.
Recurring, now, to other cases adverted to in the opinion under comment, that of State ex rel. v. Philips, 97 Mo. 331, was a proceeding by mandamus to compel the reinstatement of a proceeding, dismissed by the court of appeals, which was instituted by Bayha to have canceled certain special tax bills, which, though void, were an apparent lien on his land, and, therefore, furnished ground for the relief prayed.
Parks v. Bank, 97 Mo. 130, was another case of *156the same sort and affording illustration of the meaning of the words a cloud on title, to wit, that it is an apparently valid, though really invalid, title or lien, and Barclay, J., in commenting on the facts elicited in that case, said: “Plaintiff’s equitable estate and ownership antedated the judgment, but that fact did not appear in the public record of titles. The proof thereof rested on facts outside. A sheriff’s deed under the judgment would, therefore, apparently carry the title as against the judgment debtor’s deed, recorded befoi*e the execution sale, but executed after the judgment. That consequence of the sale justified the exercise of the preventive jurisdiction of equity to avoid the casting of a cloud on plaintiff’s title.”
Railroad v. Apperson, 97 Mo. 300, was one where a sheriff levied on a train of cars loaded with live stock and perishable property, chained it to the track, thereby obstructing traffic on the road and injuring the live stock and perishable property by the delay. This levy was made to collect taxes, and there was abundant other personal property out of which the illegal levy could have been satisfied. It would seem the injunction was granted because of the extortionate and oppressive character of the act of making the levy.
In Johnson v. Milwaukee, 40 Wis. 315, the complaint did not allege that the contract made with the city for work was void, but only asked that it “might he declared void.” In that case, that of Judd v. Fox Lake, 28 Wis. 583, is approvingly cited, followed, and quoted, where, in defining such a contract respecting a municipal assessment for street improvements as would create a cloud on title and authorize equitable interposition, it is said: “An apparently valid contract entered into by the officers of the corporation, but which is in reality invalid by reason of some extrinsic defect.” Besides, in Judd’s case, Heywood v. Buffalo is approved, so that *157the indorsement of Johnson’s case is really an unwitting indorsement of the doctrine in Reywood’s case, approvingly quoted from by Mr. Justice Field in Dows v. Chicago, 11 Wall. 108.
It is idle, however, to talk of an apparently valid contract in reality invalid by reason of some extrinsic defect, because there is no such contract here pleaded, and by the case as made by his pleading the plaintiff must stand or fall, because the court will not supply by intendment an averment the pleader has failed to make. Cook v. Putnam Co., 70 Mo. 668.
As to the case of Bank v. Evans, 51 Mo. 335, which announces the “ legal acumen” doctrine, I am persuaded, on mature reflection, it should no longer be recognized as a sound exposition of the law. It is directly opposed to the doctrine asserted in the later and far better considered case of Clark v. Ins. Co., 52 Mo. 272, and cases which followed that one.
Under the teaching of Bank v. Evans, if the doctrine therein asserted be reduced to its last and logical analysis, be put to an every day working test, every case where a layman has to consult a lawyer respecting the validity of proceedings where realty is involved, will resolve itself into a case of cloud upon title, which is simply preposterous.
For these reasons as well as others heretofore given, I am convinced that the circuit court was entirely correct in holding that the petition was wholly insufficient.
2. The second and third paragraphs of the opinion under review may be considered together, inasmuch as the former as well as the latter touch upon and treat of the insufficiency of the notice given by the board of public improvements to the effect that a special meeting would be held, etc., to consider the matter of reconstructing with asphaltum, Jefferson avenue and other *158streets. The third paragraph also treats of the matter of monopoly in awarding the contract of reconstruction. Of these, in their order.
Respecting the subject of notice, it is said: “The notice of the letting of the contract said nothing as to the different kinds of work to be done or materials to be furnished in reconstruction, although estimates for such work and materials were properly made, but simply gave notice that the board of public improvements would hold a special meeting at a time fixed, at its office in the city hall, for the purpose of considering the matter of reconstructing with asphaltum, Jefferson avenue and other streets.” No complaint is made in the petition that proper notice was not given of the letting of the contract, and certainly the letting of the contract could not occur if the charter is to govern, until after an ordinance recommended by the board had been passed by the assembly. So that the language just quoted seems quite remarkable, in that it strangely commingles and confuses the duty of the board when publishing a notice calling a special meeting to consider whether certain streets should be reconstructed, and the duty of that board in reference to publishing notice of bids to be received for contracts for work in reconstructing certain streets.
The only complaint I find in the petition in respect to the meeting of the board is that the notice of such meeting, which is copied in full, does not specify that Trinidad asphaltum was to be employed in the work of reconstruction.
But in reference to the omission of the word “Trinidad,” it is held not prejudicial, and it is said respecting this point: “The notice seems to be a compliance with the city charter in so far as reconstruction with asphaltum is concerned, and contained all that it required as to the asphaltum.” The plain inference *159from this assertion is that the notice by the board calling the meeting is bad because it fails to specify other material besides the one mentioned.
An easy answer is found to this objection to the notice, and it lies in the simple fact that section 14, of article 6, of the charter, relied on by plaintiffs in their petition, requires nothing of the hind. Look at that section now presented, and see if it does. It provides that:
“Sec. 14. No ordinance for the construction or reconstruction of any street, alley, or public highway of the city, shall be passed unless recommended by the board of public improvements, as hereinafter provided. The board may, of its own motion, and upon the petition of any reputable' freeholder of property on any street, alley, or highway, designate a day on which they will consider the improvement of such street, alley, or highway, and shall give two weeks’ public notice in the papers doing the city printing of the time, place, and object of their meeting.”
This quotation plainly shows that no material need be specified in the notice, so that the insertion in the notice of the word “asphaltum” was ultra vires the duty of the board, and wholly unnecessary. Under the terms of that section, an ordinance is perfectly valid on the bare recommendation of the board, and it is only where, after notice is given, a remonstrance occurs that it becomes necessary for a unanimous vote of the board “to approve such proposed improvement.” It is not alleged that there was any remonstrance in this instance, and if there had been it would not have affected any question of material to be used, but only a imanimity of vote.
The nest section of the same article, however, does provide for the specification of the material to be used, for it says:
*160“Seo. 15. All ordinances recommended by said board shall specify the character of the work, its extent, the material to be used, the manner and general regulations under which it shall be executed, and the fund out of which it shall be paid, and shall be indorsed with the estimate of the cost thereof.”
It is conceded that the provisions of this section were complied with by the ordinance passed, and -it is but a fair, legitimate, and legal inference, as well as an orthodox rule of construction, that as this section does require that an ordinance passed in pursuance thereof shall specify the character of the work, its extent, the material to be used, etc., etc., while its associate, section 14 of the same article, does not require such specification, that, therefore, the maxim, expressio u/nms, etc., applies, and anything more is but a work of supererogation ; and it does not admit of doubt that it lies within the province and power of the board to recommend any material it may see fit; and if the ordinance specifying the material to be used, be adopted, who can doubt the validity of such Ordinance? For it must be observed that, by the provisions of section 27, article 6, of the charter, the board of public improvements, “under the direction of the ordinance shall advertise for bids,” etc.
The ordinance in such cases, as in the case at bar, fixes the character of the material, and no subsequent action in advertising for bids could by any possibility change the nature of that material. And, besides, the penalty of nullity is not denounced against the validity of the ordinance because certain materials are specified, but that sentence of nullity only extends to the mere method of letting out work; that and nothing more.
And it is well settled in this state that, as here, a legislative declaration against the validity of a specified act, unless performed in a specified way, has *161no force or detrimental bearing against other acts not thus specifically declared to be null for failing to be done in that particular way. State ex rel. v. Mead, 71 Mo. 267; Barber, etc., Co. v. Emit, 100 Mo. 22.
Now, if it lies, as no doubt it does, within the exclusive province and power of the board to recommend any material it may see fit, and if'the ordinance specifying such material to be used be passed, who can doubt the validity of such ordinance! If the ordinance be valid at its passage, could the happening or nonhappening of subsequent occurrences defeat its validity! Who will -dare answer this interrogatory in the affirmative!
But it is said in the paragraph under consideration, that section 29 of article 1 of the charter is applicable to street improvements. Let us examine this position, That section reads as follows:
“Seo. 29. The commissioner of supplies shall purchase all articles needed by the city in its several departments. The municipal assembly shall provide, by ordinance, for the purchase of all articles, so far as practicable, by advertising for proposals at stated periods. All purchases made by him without advertising for proposals shall be approved by the comptroller before the same shall become binding on the city. In advertising for proposals to furnish supplies, quantity and quality of all articles shall be fully stated, and any bidder may bid for any one article named. The award for each article, shall, in all cases, be made to the lowest bidder therefor. The commissioner of supplies shall furnish to the bidders printed blanks, which shall be filled up by the bidders with the price of the article to be furnished, and shall, in specifying 'the quantity and quality of any article, recite the advertisement. All bids shall be sealed, and opened at an hour and place to be stated in the advertisement for proposals, in *162the presence of as many of the bidders as may desire to be present, and shall be subject to the inspection of the bidders. All bids having any alteration or erasure upon them shall be rejected. All contracts shall be approved by the mayor before they shall become binding upon the city.”
And it is asserted in the paragraph mentioned that this section requires each material which is to be used in the construction of a street to be advertised for separately, and separate bids to be taken for each of said materials.
A glance at this section of the charter it seems should convince anyone that it applies only to the commissioner of supplies and does not apply, only to a limited extent as hereafter explained, to the board of public improvements, when performing the very important duties assigned to it, under the provisions of section 27, article 6, of that charter.
That section provides that: “The assembly shall have no power directly to contract for any public work or improvement * * * but the board of public improvements shall in all cases * * * prepare and submit to the assembly estimates of the cost of any proposed work, and, under the direction of the ordinance, shall advertise for bids, as provided for purchases by the commissioner of supplies, and let out said work by contract to the lowest responsible bidder, subject to the approval of the council.”
Contrasting these two sections of the charter many points of essential difference are discovered. Under section 29, article 4, the commissioner receiving the bids for the articles advertised for passes upon them, and awards the contract to the “lowest bidder,” subject, however, to the approval of the mayor, while under section 27, article 6, the board advertises as provided “for purchases by the commissioners of supplies,” *163receives the bids and lets out the said work'by contract to the lowest responsible bidder, subject to the approval of the council, and not to the approval of the mayor. In the one case, it is a contract of purchase; in the other, a contract for work, and the board of public improvements has no more authority to contract for material than has the commissioner to contract for work. In the one case the commissioner awards the contract of purchase to the “lowest bidder,” and is accorded no discretion; in the other, the board lets the contract of loork to the “lowest responsible bidder.” In other words, lets the contract to that contractor which the board in its discretion thinks will most satisfactorily perform the work; the board having a margin of discretion in the matter, the commissioner having no discretion whatever.
It seems quite plain, therefore, that section 27 of article 6, in so far as it refers to advertisements as provided for purchases by the commissioner of supplies, means only the form of the advertisement, the number of times it is to be inserted, etc. This view is sanctioned by abundant authorities which hold that the letter of a statute may be enlarged or restrained, according to the true intent of the framers of the law. Whitney v. Whitney, 14 Mass. 92; State ex rel. v. Emerson, 39 Mo. 80; State ex rel. v. King, 44 Mo. 283; Riddick v. Walsh, 15 Mo. 519. In such cases, the reason of the law prevails over its letter, and general terms are so limited in their application as not to lead to injustice, oppression, or an absurd consequence, the presumption being indulged that the legislature intended no such anomalous results. United States v. Kirby, 7 Wall. 482; People ex rel. v. McRoberts, 62 Ill. 38; Fusz v. Spaunhorst, 67 Mo. 256; Sutherland, Stat. Constr., p. 288.
These two sections of the charter, section 29 of article 4, and section 27 of article 6, are so essentially *164different in their objects and operation that it is passing strange that they should be confused.
There are other cogent reasons why it is impossible that the several constituent elements of a street should be advertised for separately and separate bids received therefor. It is a matter of common knowledge that a street is a homogeneous whole from the substructure of earth upon which the superstructure rests, up through that superstructure to the top of the wearing surface; all of the elements which enter into its construction, sand, lime, cement, broken stone, wood, or .asphalt, compose nothing more nor less than a competed street. It is a matter of serious doubt whether it would be possible for the board to advertise for the component parts of a street — sand, broken stone, cement, etc., etc. — in their proper and just proportions.
However this may be, there are several reasons, the first a legal reason, why the construction being combated is untenable and should not prevail, but leads to manifest and manifold absurdities. Now, first, the' legal reason:
By section 18 of article 6 of the charter it is provided that: “The cost of construction of all the foregoing improvements within the city shall be apportioned as follows: The grading of new streets, alleys, and the making of crosswalks, and the repairs of .all streets and highways and cleaning of the same, and of all the alleys and crosswalks, shall be paid out of the general revenue of the city; and the paving, curbing, guttering, and sidewalks, and the material for the roadways, repairs of all alleys and sidewalks, shall be charged upon the adjoining property as a special tax, and be collected and paid as hereinafter provided.”
Section 24 of article 6, declares that: “All special tax bills for work contemplated by this charter shall be made out by the president of said board, and by *165him registered in his office in full, and certified and delivered to the comptroller, and his receipt taken therefor and by him registered and countersigned and delivered to the party in whose favor it is issued for collection, and his receipt taken in full for all claims against the city, on account of said work.”
Section 25 of article 6 of the city charter provides: “Said tax bill shall be and become a lien on the property charged thereunder and may be collected of the owner of the land in the name of and by the contractor, as any other claim, in any court of competent jurisdiction, with interest at the rate of ten per cent per annum after thirty days from date of demand, and if not paid within six months after such demand then at the rate of fifteen per cent per annum from the date of said demand. In case the owner of the ground is a nonresident of the state, suit may be brought against him by attachment which shall be a demand of its payment.”
It will be readily seen that these sections of the charter provide for the issuance of a special tax bill for a completed street, and that there is no provision for the issuance of a special tax bill for each material of which the completed street shall be composed.
Why the advertisement calling for bids should set forth the amount and quality of each material which shall compose the completed street, and why separate bids should be taken for each of said materials, when the board would have no authority to award separate contracts for each material, for the plain reason that the board would have no authority to issue separate tax bills to each contractor, is a very difficult question to answer. If the board has no power to issue a special tax bill to pay each contractor for the proportion of the work done by him, it seems that to advertise for *166separate bids and attempt to award separate contracts would be a very vain and nugatory proceeding.
If a separate advertisement is necessary and separate bids must be received for each material which is to compose a completed street, then, as a matter of course, each contractor must be paid separately the amount to which he is entitled. He can only be paid this amount by a special tax bill, because the section of the charter just quoted provides that the cost of the improvements shall be charged as a lien on the adjoining property. So that we would have separate advertisements for the different materials that compose the completed street, separate bids therefor, and separate awards, and then the board would find itself in the position of being without the power to issue a tax bill to each contractor for the work done by him. The charter contemplates and provides for the issuance of but one tax bill against each property owner, and that tax bill is for the proportion of the cost of the completed street in front of his property. So much for the legal reason.
But there are practical reasons why such a theory as is now being combated is not a true construction of the charter provisions..
A familiar rule requires that all of the provisions of the charter bearing on the subject be construed together, so that a consistent, sensible course of conduct shall be pursued. Now, if a contract have to be invited and may be awarded by the board for each separate material or kind of work included in this thing we know as a completed street, then there may be as many contractors as there are different materials or kinds of work. So that all the contractors in turn would be dependent on the first and delayed by his delay of the work, and each contractor would in turn be dependent upon and delayed by the contractor just ahead of him. Each one of the contractors would have *167to carry out faithfully his portion of the work. But the action of the elements, the vicissitudes of the weather during the progress of the construction of the street, might destroy or greatly impair the work done by a preceding contractor; the contractor next in turn could neither be expected nor compelled to put in suitable condition his portion of the work, that portion which had just been destroyed or seriously impaired by the elements, and the same is true of the contractor who had already completed his portion of the work; he would not be required to “maintain” it at what it was when he gave it the last stroke of his labor, nor to “repair” it after it had suffered detriment, because he has completed his portion of the work; and so on, thus resulting in interminable delay and confusion for no useful purpose.
Again, if the theory be correct that the board must' award contracts for each separate material that enters into the make-up of a completed street, just as does the commissioner of supplies, then this result will indubitably follow: The city, through its agent, the board, having advertised for and awarded contracts for certain materials, of course must pay for them, although the charter provides that the city shall not be .liable for the construction or reconstruction of streets. Well, then, the city having bought this lot of material, for the purchase of which by the city or by its board there is not one word nor shred nor patch of legislative authority, must of course, sell it again in order to reimburse and make itself whole!
This illustration shows that the theory advanced would compel the city and its board to do a useless and absurd act. A child’s game of cross purposes would not have a more singular termination.
Now as to the monopoly question. The opinion in this case as in 27 S. W. Rep. reported, followed with *168express approval Barber, etc., Co. v. Hunt, 100 Mo. 22. But the opinion under revision has changed front on the question, and now asserts the contrary doctrine.
The opinion in Hint’s case is amply supported by authority. Hobart v. Detroit, 17 Mich. 246; Yarnold v. Lawrence, 15 Kan. 126; In re Dugro, 50 N. Y. 513; Baird v. Mayor, 96 N. Y. 567; Mayor v. Bonnel, 31 Atl. Rep. 408. These two cases in the New York court of appeals directly repudiate the rule announced in Dolan’s case, 4 Abb. Pr. (N. S.) 397, and People ex rel. v. Van Nort, 65 Barb. 331. "When thus repudiated by the court of last resort, it is not customary to cite any longer the ruling of the lower courts as authority.
The view in Dean v. Charlton, 23 Wis. 590, was expressed by a divided court. There was a vigorous dissenting opinion by Dixon, C. J., and shortly thereafter the legislature changed the rule announced by the majority, and permitted municipalities to have the benefit of patented articles.
In Louisiana views in accord with that first announced in Wisconsin have been expressed. Burgess v. City of Jefferson, 21 La. Ann. 143. To the same effect is Nicolson Pavement Co. v. Painter, 35 Cal. 699, and an earlier case in that state. The ease in 35 N. J. L. 351, State v. City of Elizabeth, has been recently decided in New Jersey not to have ruled the point in question, which last case, Mayor v. Bonnet, 31 Atl. Rep. 408, approves Hobart’s case in Michigan and also that of In re Dugro, 50 N. Y. 513.
In such conflict of authority, it would seem that a rule once adopted by the unanimous opinion of a court of last resort, and which has remained unchallenged for years, should not be lightly departed from. . And this is especially the case where the doctrine thus established has become a rule of property, as is the case here.
*169Even a single decision not questioned for years has been held to create a rule of property, and has been respected as such. See 23 Am. and Eng. Encyclopedia of Law, p. 28, sec. 3; Wilson v. Lumber Co., 67 Fed. Rep. 674, per Philips, J.; Wells, Stare Decisis, sec. 598.
In Bates v. Relyea, 23 Wend. 340, Cowen, J., said: “The decisions of this court, while unreversed, always formed the absolute law of the cases, and entered with very decisive effect into the body of precedents. They must, from the nature of our legal system, be the same to the science of law, as a convincing series of experiments is to any other branch of inductive philosophy. They are, on being promulgated, immediately relied upon according to their character, either as confirming an old, or forming a new, principle of action, which perhaps is at once applied to thousands of cases. These are continually multiplying throughout the whole extent of our jurisdiction. Numerous and valuable rights, offensive and defensive, may be claimed under them. * * * Sir William Jones has written an excellent commentary on the maxim stare decisis, etc., by way of reply to a remark of Powell, J., who said, ‘Nothing is law that is not reason.’ ‘This is a maxim,’ says Jones, ‘in theory excellent, but in practice dangerous, as many rules, true in the abstract, are false in the concrete; for, since the reason of Titius may, and frequently does, differ from the reason of Septimius, no man who is not a lawyer,'would ever know how to * * * advise, unless courts were bound by authority as firmly as the pagan deities were supposed to be bound by the decrees of fate.’ Jones on Bailm. 60, Am. Ed., 1804. The court almost always, in deciding any question, creates a moral power above itself; and now when the decision construes a statute, it is legally bound for certain purposes, *170to follow it as a decree emanating from a paramount authority, according to its various applications in and out of the immediate case. * * * This would be so of such a constructive decision, even were we to rule it as erroneous, by a subsequent one.”
And on this point Chief Justice Taney said in Ohio Life Ins., etc., Co. v. Debolt, 16 How. loc. cit. 432: “The sound and true rule is, that if the contract when made was valid by the laws of the state, as then expounded * * * and administered in its courts of justice, its validity and obligation can not be impaired by any subsequent act of the legislature of the state, or decision of its courts, altering the construction of the law.”
In other words, in the circumstances mentioned, such subsequent conduct on the part' of the legislative or judicial departments of a state, would impair the obligations of a .contract, something forbidden by the constitution of the United States.
But apart from’ the binding force of a unanimous opinion which has become a rule of property, the ruling in Barber, etc., Co. v. Hunt, supra, commends itself to our approval on other and independent grounds, to wit: That in this era of progress, when nearly every first-class article, not in its raw or original state, bears the stamp of a government patent upon it, a municipality should not be debarred from using the patented article as does the world at large, no matter how urgent the need for its use, until fourteen years have expired, and the article has ceased to bear the odious insignia of governmental approval.
A ruling which would enforce such a retrogressive prohibition would be most unreasonable and disastrous to the material interests and welfare of cities and their citizens, and should not be permitted to prevail upon a mere surmise or implication, but only upon the basis *171of a clear and emphatic declaration; because the legislature should not be presumed to have intended such a hurtful and unreasonable result.
But even did the charter plainly announce the prohibition claimed for it, unless such prohibition is free from absurdity, oppressive and unreasonable consequences, the ruling which accords it recognition should be rejected. Sutherland, Stat. Constr., sec. 218, p. 288, and other authorities supra.
This was the view taken in In re Dugro, 50 N. Y. 513, supra. There the common council of the city .had a similar general grant of power in relation to the construction of streets, choice of material, etc., as in the case at bar. Subsequently, the act of 1870 was passed. Section 104 of that act required all work to be done and supplies to be furnished by contract * * * and directed all contracts to be made or let after an advertisement for proposals, to the “lowest bidder.” Under this condition of things, a contract was let and finished for a “Nicolson pavement,” and the objection was urged that as the right to lay such pavement was in a single person or corporation, therefore, the contract was void, and the assessment for the work illegal. In answering this objection, Allen, J., said:
“It is urged that because-a statute prescribing general rules for the exercise of the powers granted to the municipal corporation are not in all their .detail applicable to every ease that may arise, that to the extent they can not be applied, the powers are annulled and can not be exercised. This would be to give undue effect to the act prescribing the forms of procedure, and modal in its character, at the expense of the general grant of power. * * * The general rule is, and this case does not form an exception, that statutes prescribing forms of procedure, and providing for the orderly conduct of proceedings by public officers or *172bodies, are only obligatory to the extent, and in cases to which they are by their terms applicable. The legislature can not be presumed to have intended to declare that no power should be exercised, or work done, or supplies furnished, unless of a character that would admit of competitive bids. * *' * A thing within the letter is not within the statute, unless within the intention. The act of 1870 can have full effect in cases to which it can be applied, but if there are cases to which it could not be reasonably applied, they are not within the intention, and, therefore, not within the statute. * * * If, as alleged, there could be no competition for the paving with the Nicolson pavement, the common council had nevertheless the power to cause the street to be paved with it, and it is simply a case not within the statute, although the words are broad enough to include it. It constitutes one of the necessary exceptions to it.”
But it is not really true that because an article belongs to the patented class therefore competition for its purchase is beyond the range and reach of reasonable competition, and of being contracted for and purchased just as unpatented articles are. This view was taken in Hobart v. Detroit, supra, by Cooley, C. J., who, with admirable prevision, discerned, that the fact that an article was patented did not prevent it from being contracted for even by a person not having, it at the time of contract made. This clear perception of the distinguished jurist as to the nonmonopolistic character of patented articles, though owned by a single-person or corporation, has found ample vindication in actual practice. Thus, in Barber, etc., Co. v. Gogreve, 5 So. Rep. 848, upon evidence adduced, it was judicially ascertained and determined that competitive bids could be had in the circumstances men*173tioned. So that this question of monopoly in its bearing on the case at bar may be thus summarized:
In the first place it can not be applied to the material to be selected by the board for the construction or reconstruction of a street, for the simple reason that such material is unalterably settled and fixed by the 'board, when in the exercise of its discretion, a discretion not reviewable by the courts, it submits to the assembly an ordinance, which specifies “the character of the work, its extent, the material to be used,” etc., and such ordinance is passed by the assembly.
Because, second, the declaration of nullity mentioned in section 27, article 6, only applies to the mere formal method of “letting out work,” and not to the previous action of the board and assembly.
Because, third, even if the declaration of nullity is within the letter of section 27, it ought to be held, for reasons already given, and under the authorities cited, as not within the intent of that section.
Because, fourth, waiving all previous considerations, the rule “stare decisis” should inflexibly be applied to the circumstances of this case, where, upon the faith of the unanimous decision of this court, rendered years ago, a contract valid when made according to that decision is now assailed and its obligatory force attempted to be broken. This can not be done without impairing the obligation of that contract, which, valid when made, must so remain, no matter what changes may occur by reason of judicial vacillations.
“The national constitution forbids the states to pass laws impairing the obligation of contracts. * * * That end can be accomplished unwarrantably no more by judicial decisions than by legislation.” Pine Grove v. Talcott, 19 Wall. loc. cit. 678.
“After a statute has been settled by judicial construction, the construction becomes, so far as contract *174rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is to all intents and purposes the same in its effecon contracts as an amendment of the law by means of a legislative enactment. Douglass v. County of Pike, 101 U. S. loc. cit. 687. See, also, Gelpcke v. Dubuque, 1 Wall. 175; New Buffalo v. Iron Co., 105 U. S. 73.
3. Under quotations already made from the charter, the board, independent of any notice given or of any special meeting, had full power and exclusive jurisdiction to recommend to the assembly, by ordinance to that effect, any material the board deemed best for the reconstruction of the streets mentioned in that ordinance. And, besides, as heretofore shown, the requisite notice was given of such special meeting, which notice fully complied with the provisions of section 14, article 6, of the charter.
• This being the case, and the ordinance recommended by the board having passed the assembly, the jurisdiction of the board became complete to take the further steps it did take, and no subsequently occurring error, omission, or irregularity could divest or defeat such previously acquired jurisdiction. Wells, Jurisdict., sec. 79.
And the same rule applies as to the acquisition of jurisdiction by quasi tribunals and officers as applies to regularly organized courts. State ex rel. v. Bank, 120 Mo. loc. cit. 172; Cooley, Torts [1 Ed.], 417.
In the case at bar, all the precedent steps were taken by the board, down to, and inclusive of, the time when the contract for letting out the work of reconstruction was approved by the council and awarded by the board, and these things are shown by the questioned petition. So that the contract was by no means '■'■void wider the charter, for the want of authority in the city to enter into it.”
*175The contract, then, being valid and in accordance with the charter, that contract is capable of enforcement so far, at least, as the work of reconstruction is concerned, because under the authorities which have been cited, even if the contract as to maintenance be invalid, the maintenance section may be stricken out and still leave those sections which provide for reconstruction intact, and in full force and operation.
In such circumstances as the foregoing, cases like Keating v. Kansas City, 84 Mo. 415, can have no possible application to the case in hand, for there no ordinance at all had teen passed by reason of the ordinance not having been properly authenticated, as will be seen by reference to Keating v. Skiles, 72 Mo. 97, on which the action in the former case was based.
Here, on the contrary, the ordinance and contract are valid so far as reconstruction is concerned, and when this is the case, when any separable portion of the contract is valid, there can be no cloud on the title. Heywood v. Buffalo, 14 N. Y. supra. And the owner who seeks to enjoin the collection of the special tax must perform the condition precedent of tendering the amount justly due. Johnson v. Duer, 115 Mo. 366, and other cases.
In reference to other matters, the maintenance clause of the contract, the validity of ordinances 542 and 17151, the existence of remedies at law, etc., they have been so fully discussed in my former opinion herein that it is thought unnecessary to dwell upon them any further.
I think now, as I thought when concluding my former opinion, that abundant and cogent reasons exist and have been presented for the affirmance of the judgment of the circuit court. Brace, C. J., concurs in all that has been said, except that he expresses no opinion on the third paragraph of the present opinion.
Robinson, J., concurs.