(dissenting). — The defendants, Dorr and Zeller, were prosecuted in the Second District Police Court of the City of St. Louis for the violation of city ordinance No. 16669, approved April 22, 1892.
The alleged violation consisted in carrying on a business avocation, to wit: that of confectioners, in a certain brick building occupied by defendants situated on the south side óf Washington boulevard, contrary to the ordinance aforesaid.
In 1891 the General Assembly of Missouri passed the act (Acts 1891, p. 47) entitled “An act relating to boulevards in cities having a population of three hundred thousand inhabitants or more.” The first section of the act prescribes as follows:
“Section 1. All cities in Missouri having a population of three hundred thousand inhabitants or more, or which shall hereafter reach said population, are hereby authorized and empowered to establish by ordinance boulevards and provide for maintaining the same; and may regulate the traffic thereon, and may exclude heavy driving thereon, or any kind of vehicle therefrom, and may exclude the institution and maintenance of any business avocation on the property fronting on said boulevard, .......and may convert existing streets into boulevards,” etc.
Pursuant to this power and authority, the Municipal Assembly of St. Louis enacted Ordinance 16669, entitled “An Ordinance Relating to Washington Boulevards,” approved April 22, 1892. By this ordinance that portion of Washington Avenue between Grand Avenue and King’s Highway was established as a boulevard, to be known as Washington boulevard. The third section of the ordinance is as follows: “Section 3. The houses fronting or bordering on Washington boulevard, between Grand avenue and *487King’s Highway, shall be used as residences only, and no business avocations whatever shall be allowed to be followed in same.”
The ordinance makes it a misdemeanor to violate this section.
The case being tried in the Second District Police Court on March 23, 1894, defendants were found not guilty. The city appealed to the Court of Criminal Correction, where, upon a trial being had, it was admitted that the defendants were doing business in said building, number 3924, Washington boulevard, as charged in the pleadings, by carrying on the business of manufácturing and selling confections. The first floor of the building was used as a business house, and consisted of one main store room about thirty feet wide with a driveway running through the building inside of the outside walls of the building, for the purpose of loading and unloading wagons. Defendants had formerly carried on the same kind of a business at the northeast corner of Yandeventer avenue and Washington boulevard, and about March, 1894, completed this building, moved into it and opened up their business at that point.
At the close of the evidence defendants made an oral motion to be discharged, claiming that the ordinance is unconstitutional and void: “In this, that it attempts to deprive the defendants of the use of their property, and it attempts to appropriate and damage the use of their property for either public or private use; also that it does not appear that there had been any steps taken to condemn this property or the use of this property for special use, or for special restriction, and it is to deprive the defendants of the gains of their own industry, that it is in violation' of. the first section of the 14th amendment of the federal Consti*488tution, in attempting to deny these defendants the equal protection of the laws.”
The court granted said oral motion, and discharged defendants, and the city brought error.
The questions thus presented by the record are altogether constitutional ones.
It has been suggested that the act approved March 26,1891, a portion of which has heretofore been quoted, is unconstitutionally invalid because the legislature has no-power to amend the charter of St. Louis. While it is true that the legislature is, by section 58 of article IV of the Constitution in express terms, forbidden to pass any local or special law; regulating the affairs of counties, cities, etc........or incorporating cities, etc. or changing their charters, yet this prohibition only applies to ulocal or special laws” has no application or reference whatever to general latos, because in regard to these, the Constitution is very emphatic.
In section 20, article IX, when providing for a new charter for the city of St. Louis, it is distinctly stated that such charter shall be “in harmony with, and subject to the Constitution and laws of Missouri.” This emphasis touching the subjection in manner as aforesaid, of the charter of the city of St. Louis, is repeated in a subsequent section of the same article of the organic law. Thus in section 22, provision is made for amendments to the charter of the city of St. Louis, and section 23-thereupon says: “Such charter and amendments shall always be in harmony with and subject to the Constitution and laws of Missouri.” Nay more, at the close of the article, as if to make “assurance doubly sure,” section 25 declares: “Notwithstanding the provisions of this article, the General Assembly shall have the same power over the city and county of St. Louis that it has over other cities-and counties of this *489State.” These plain provisions of the Constitution have been enforced by this court on several occasions.
Thus in Ewing v. Hoblitzelle, 85 Mo. 64, a law in relation to registration in cities having*a population of one hundred thousand inhabitants or more, was held to be not a local or special law but a general law and as such it was competent for the Legislature to pass such a law, and that under the sections in article IX of the Constitution already cited and quoted, such law providing for the appointment by the Governor of a “recorder of voters,” would prevail over and abrogate section 15 of article II of the charter of St. Louis by which section the mayor was given power to appoint four judges of election.
In State ex rel. Atty. Gen. v. Dolan, 93 Mo. 467, the charter of the City of Kansas provi ded for the election of a supervisor of registration, but afterwards the act of 1883, created the office of recorder of voters, and this court held that the act of the legislature on that point repealed the charter. Ewing v. Hoblitzelle, supra, was cited as confirmatory of that position.
In State ex rel. v. Miller, 100 Mo. 439, it was ruled that an act which fixed the number of directors in public school boards by providing that “in all cities of this State now having, or hereafter attaining, a population of over three hundred thousand inhabitants,” etc., etc., was a general law although judicial notice would be taken of the fact that only one city in this State at the time had such a population.
So, also, in State ex rel. Ziegenhein v. Railroad, 117 Mo. 1, it was ruled that the general law for the extension of taxes levied on railroad property, was in direct conflict with the charter of the city of St. Louis, but that notwithstanding this, the general law should prevail, and this on the ground that the Legislature had *490the power to alter or amend the charter of the city of St. Louis, citing Ewing v. Hoblitzelle, supra.
So, also, in State ex rel. Hunt v. Bell, 119 Mo. 70, the act of 1893 Was discussed, which created the office of excise commissioner. Its first section made it applicable to all cities “which now have or may hereafter have a population of two hundred thousand inhabitants.” And it was ruled that it was a general law and not a local or special one, and that although by the terms of its charter the city had the power to “license, tax and regulate dramshops” (art. III, sec. 26, par. 5), and although the ordinances of the city passed pursuant to the charter had theretofore required the collector to issue licenses for dramshops both for state and city purposes (art. IV, sec. 1461, Bev. Ord. 1892) and to collect all revenues (sec. 40, chap. III, Rev. Ord. 1892, p. 439), yet that the law thus passed by the legislature repealed the ordinances in conflict therewith, and turned over the issuance of all licenses both for State and city to such excise commissioner.
Another and different class of cases will now be ‘mentioned, and which are easily distinguishable from those heretofore examined, where the acts in question were held to be general laws.
Thus in State ex rel. Harris v. Herrmann, 75 Mo. 340, the act of 1881 provided in its caption as well as in its first section applied only to “all cities having a population of 100,000 inhabitants or more;” and section 4 of that act repealed all inconsistent acts and abolished “the office of auy notary public in such city holding a commission bearing date prior to the passage of this act, and whose term of-office as such notary public has not expired at the time this act becomes a law.” And it was there held that inasmuch as we took judicial notice of the population of cities and of the fact that St. Louis was the only city in the State that at the *491time of the passage of the act, or which by the usual increase of population could be expected to have that number when the act took effect, and therefore it was to be regarded as intended to apply alone to the city of St. Louis, as much so as if named therein. And further, it was held that inasmuch as section 4 of the act could only apply to an u existing state of facts,” and could not apply to matters which might arise in the future, that therefore, the act was a local and special law.
So, too, in State ex rel. Board v. County Court, etc., 89 Mo. 237, the act in terms applied to “all counties in this State in which there is located a city of over fifty thousand inhabitants,” was held to be a local and special law for like reasons as last above stated.
But in Murnane’s case, 123 Mo. 479 on which defendants rely, the law of March 14, 1893, was under discussion which provided that: “In all cities of this State which now have or may hereafter have a population of three hundred thousand inhabitants or over, the whole cost of paving, .... shall be charged upon the property adjoining such improvement as a special tax, and levied, collected and paid in the manner and at the time now provided by law or charter of said cities for the levy, collection and payment of special tax bills for the street improvements in said cities.” And this law was held unconstitutional. ,This ruling seems to be based on two grounds: First, that the act was a local and special law; second, that it changed the classification of cities as provided for in section 7, article IX of the Constitution. It can not be gainsaid or denied that the act aforesaid by its very terms, applied to all cities which then possessed or might thereafter become possessed of three hundred thousand inhabitants or over. If this be true, then obviously it was a general law as *492it was not confined'in its operation to an “existing state of facts,” to wit, to cities then possessed of a certain population, but embraced within its comprehensive scope all the cities in this State which thereafter might attain such population. But it was said in effect in the case under comment, that the words, to wit, unow provided.^ law or the charter of said cities,” etc., (two of which words were italicized), caused the real character of the act to appear, and thus turned that which otherwise would have been a general, into á local or special law. The learned judge when writing this opinion seems to have forgotten his brief filed in Herrmann’s case, 75 Mo. 341, wherein he said, touching the point in hand: “Law is made theoretically, ‘not for a day, but for all time.’” If this is the correct theory on which and by which a law or charter is to be construed, and its force and effect determined, then assuredly the provisions in laws or charters in existence when .the law of .1893 was passed or went into effect, might well apply to cities which then were governed by a law or charter, but which did not then possess the requisite population, and so could await the necessary increase in that respect. In a word, the law of 1893 provided for and anticipated the wants of the future, and could not be and should not have been balked of its manifest purpose, nor be regarded as a local or special law from the mere fact that such purpose by then existent laws or charters was in the future, as occasion might require, to be effectuated. And just here it is well enough to remark that neither the statute in Herrmann’s case, supra, nor in State ex rel. v. County Court, supra, as already seen, bear the least resemblance to the statute in Murnane’s case, although it is there said that those cases were directly in point. Now, as every lawyer knows, the language referred to and italicized in Murnane’s case, is by no means lipeculiar” since it is not at all uncommon *493for one statute to refer to another act. Sedgwick Stat. Construe. 229; 'Sutherland, Stat. Const., section 257, and even in criminal cases an act which creates and defines a new offense, often provides for its punishment “in the manner now provided by law” for the punishment of such and such offenses; and yet in the face of this well known legislative custom, attested as it is by every statute-book in the land, Murnane’s case when reduced to its last analysis gives utterance to the startlingly anomalous doctrine that a statute general in form, in every particular, will at once become a local or special law should it happen to refer for its future execution to present methods of procedure. Just as if laws and charters like hot cakes have to be served or used as soon as done.
And in this connection it is proper to state that the adverb llnow” does not necessarily mean at the present time. This view finds illustration in Clark v. Lord, 20 Kan. 390, where the statute provided that: “All instruments of writing now copied,” etc. This act was approved February 20,1868, and notwithstanding this it was held that the word “now” referred to the time when the act regulating conveyances of real estate took effect in the subsequent October.
In another instance, Waugh v. Middleton, 8 Ex. 352, the language of the Bankrupt Act of 1849, was “every deed or memorandum of arrangement now or hereafter entered into,” did not apply to such instruments as were entered into and completed before the passing of the statute, and this was done upon the ground that in order to prevent injustice and to carry out the intent of the act, that the court felt justifiable in resorting to any means to get rid of the apparent effect of the word unoiv,” and accordingly held it not to have been used in the sense of “heretofore” but to apply to transactions not yet completed when the act *494took effect. This desire of carrying .out the' intention of the legislature by enlarging or restricting the meaning of certain words, is abundantly illustrated in many text-writers and reports; you can scarcely go amiss of them. Thus in Kugler’s Appeal, 55 Pa. St. 123, where an act allowed an appeal by words of general reference, the same as another act, the only one which allowed appeals, and thereupon it was said that the words in the case provided for by the earlier act were intended “as a rule of for future conduct, a rule always to be found, when it is needed, by reference to the law existing at the time when the rule is invoked.”
A similar view was expressed in another case where a statute prohibited contests of speed of animals “excepting such as are by special laws for that purpose expressly allowed,” and it was held that this expression was not limited to the adoption of the statute then existing, but that such exception would operate to include such special laws as might subsequently be passed. Harris v. White, 81 N. Y. 532.
So, also, in Jones v. Dexter, 8 Fla. 276, an act adopted the provisions of the law regulating descents as furnishing the rule for the distribution of personal estate, was held intended to refer to any law of descents which might be in force at the time the right to distribution became vested. See, also, Endlich Interp. Stats., sec. 493. All laws are presumed to be intended to operate prospectively and not otherwise, unless language to the contrary be expressed or the implication of such intention from the language employed be indubitably clear. This is the inflexible and universal rule. The authorities already cited illustrate the strong tendencies of the courts in this direction, when construing statutes of doubtful import; and besides that, the act of 1893 as above quoted, gives very strong tokens that that act shall apply alone to future events not only by the beginning of the first *495section, but also by the words: “shall be charged upon the property,” etc. These words clearly indicate future operations, and if the authorities cited are to be followed, should not be dwarfed of their proper significance nor shorn of their legitimate meaning, by the use of words which only point out the method of procedure when such future operations begin. Surely the meaning of such words of future aspect should not be frustrated and overthrown by the single adverb “now,” meaning the present time, which (as Pollock, C. B., remarks in Waugh v. Middleton, supra) “if it does mean this, certainly means it by the smallest amount of expression that can be used-to convey it.”
Furthermore, to resort to such a construction of a statute, which allows a single isolated word to defeat and render null an entire legislative enactment, is at war with that wholesome canon of construction which gathers the intention of a’ statute from the whole of it and allows such intention to prevail over the strict sense of the terms used, in order to avoid injustice and to prevent absurdity, contradiction and unreason, as it will always be presumed that the legislature intended exceptions to its language which would avoid results of this character. Bishop Writ. Law, sec. 93; Endlich Interp. of Stats., secs. 258, 35; Sutherland Stat. Const., secs. 260, 218, 239-246, 325.
“If possible, a statute must be so construed as to make it effect the purposes for which it was intended.” Endlich, sec. 29. Yague conjecture, slight implication, or the abstract and hypocritical niceties of a finical taste are not to be employed in the constitutional construction of a statute. Prima facie a law is constitutional; prima facie it conforms in all essential particulars to the requirements of the organic law, and the well known rule of construction applies in cases of this sort, that a statute is not to be presumed repugnant to *496the Constitution until such repugnancy is made to appear beyond a reasonable doubt. Touching this point Judge Cooley very pertinently observes:
“The duty of the court to uphold a statute when the conflict between it and the Constitution is not clear, and the implication which must always exist that no violation has been intended by the Legislature, may require it in some cases, where the meaning of the Constitution is not in doubt, to lean in favor of such a construction of the statute as might not at first view seem most obvious and natural. Por 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.] 218. And when speaking of presumptions attendant on the validity of, a legislative enactment, it has been very forcibly said: “The presumption against absurdity in the provision of a legislative enactment is probably a more powerful guide to its construction than even the presumptions against unreason, inconvenience or injustice. The legislature may be supposed to intend all of these; but it can scarcely be supposed to intend its own stultification. Accordingly, it has been said that, when to follow the words.of an enactment would lead to an absurdity as its consequences, that constitutes sufficient authority to the interpreter to depart from them.” Endlich, sec. 264. Moreover, it is abundantly established as a rule of construction, that:
“Notwithstanding the general rule that full effect must be given to every word, if no sensible meaning *497can be given to a word or phrase, or if it would defeat the real object of the enactment, it may, or rather it should, be eliminated.” Endlich, secs. 301, 302; Sutherland Stat. Const., sec. 260.
This course of construction has been pursued in this State ever since State v. Beasley, 5 Mo. 91; State v. Acuff, 6 Mo. 54; State to use v. Heman, 70 Mo. 441; Bingham v. Birmingham, 103 Mo. 345, in which last case eight words were stricken out of a section of a statute in order to promote the plain intent of the legislature to make all sections of the law harmonize; in short, to “make sense” out of the act.
It is scarcely necessary to say that none of the well-grounded canons of construction above mentioned, sanctioned as they are by the wisdom and experience of ages, and none of the authorities in which those rules are embodied, are noted or even alluded- to in Murnane’s case; on the contrary, the meaning of the whole act of 1893, with all its extended and varied phraseology, is made to turn (like the toss of a copper or one throw of the die) upon the import of a single monosyllablic word of three letters. If this is not “sticking in the hark,” then the general utility of the maxim “qui haeret in litera haeret in cortice” is not altogether self-evident.
G-uided by the authorities aforesaid, and all legitimate deductions therefrom, we are constrained to hold that the act of 1893 was not a local or special law, but a general law in the fullest and most complete sense of that term. But making for the sake of argument, the enormous concession that the act of 1893, just discussed, is a local or special law, still such concession can not affect the act of 1891, as that act does not “bear its death wound bn its face,” to wit, that fatal adverb “now,” and consequently there is no “slight blemish in the veneering” of that act.
*498II. It is said, however, that the legislature has no power to amend the charter of the city of St. Louis, even by a general law. It is to be especially noted that no mention nor citation of, nor quotation from sections 20, 23 and 25 of article IX of the Constitution heretofore set forth is made in M.urnane’s ease, although section 7 of the same article is quoted in full, and also the prohibitions of section 53 of article IV of the Constitution with regard to passing any local or special law: “Regulating the affairs of counties, cities, etc........or incorporating cities, etc., or-changing their charters,” are carefully copied. Why the other sections of the article directly relating to the city of St. Louis, though that city is mentioned by name three times in section 20, once in section 23 and again in section 25, were omitted is beyond ken and comprehension. It would seem that judicial fairness should have required that sections 20, 23 and 25 aforesaid should have been cited and commented on. But it matters little, in one sense, what the cause or occa-' sion of such omissions, because a general law and a special or local law are correlative terms, and each indicates the existence of each other. An approvéd text-writer, already cited, on this topic says: “The requirement of general laws.......is an implied prohibition of special or local laws; so the express prohibition of local or'special laws is an implied requirement that legislation shall be general. Individual cases of the enumerated class can not be provided for. These are converse forms of similar constitutional regulation.” Sutherland Stat. Const., sec. 126.
When the Constitution by section 53 of article IV forbade the legislature to pass any local or special law: “Regulating the affairs of counties, cities, etc....... or incorporating cities, etc., or changing their charters,” it thereby by inevitable implication granted permission *499to the legislature to legislate on those subjects hy general latos, and this upon the principal of 11 expressio unius exclusio alterius.” But not content with such plain implication, the framers of the Constitution super-added thereto the explicit provisions in sections 20, 23, and 25, which included in section 23 even the amendments to the charter of the ,city of St. Louis, and section 25 winds up with the sweeping and conclusive declaration: “Notwithstanding the provisions of this article, the General Assembly shall have the same power over the city and county of St. Louis it has over other cities and counties of this State.” Does any one doubt that the General Assembly can, by general laws, control the local affairs of the counties of this State? Certainly not. Then by the , same token it possesses the same power over the cities of this State. The Constitution furnishes no warrant for the assertion that the power of the legislature is restricted to the “local concerns” of such cities, at least of the city of St. Louis, which is the subject of the present investigation.
The Constitution has made no exceptions to its general grant of power to the legislature, and the courts without judicial usurpation can make none. But it is urged that if you admit- the power of the legislature by general law to amend the charter of the city of St. Louis, you thereby change the classification of the cities of this State as provided for in section 7 of article IS of the Constitution. But it is enough to say of such section that it has nothing whatever to do with the city of St. Louis, since that city is by the Constitution singled out and segregated from all other cities in this State, by express mention by name, as well as by peculiar and special provisions, shared by no other city. That section has no more to do with the city of St. Louis, than has section 16 of the same article, which *500confessedly has no application to that city, and no more has section 17. But granting that the city of St. Louis belongs to the 11 first class,” it is insuperably difficult to see how any change could occur in’ the classification of the cities of that class, if the following remark made, Murnane’s case, loc. cit. 489, is to stand:
“If the charter of St. Louis is repealed by the legislation of 1893, so also is repealed the like provision of the charter of cities of the first class. It is this obvious result which renders the act of 1893, in my opinion, void and of no effect.”
Because if the act of 1893 repealed the charter of all cities of that class, then indubitably it made their charters all alike in so far as it operated, and so worked no change in their classification. This result is too plain for argument. And it is conceded that the State may amend the charters of cities in “ Slate affairs” and certainly this is a change, and therefore to be followed according to the theory announced, by all the horrible consequences incident to a change in classification.
III. Having thus gotten rid of the debris, caused by the discussion of Murnane’s case, we are at liberty to devote attention to the case at bar; it lies within a very small compass.
In St. Louis v. Hill, 116 Mo. 527, where another section of the act of 1891, and an ordinance based thereon, underwent discussion, we there held that the city could not deprive the owner of the use of a portion of his property, by compelling him to set his dwelling house forty feet back from the “building line” of Forest Park boulevard on the ground that the ordinance which authorized such building line and compels its observance, was null and void because, first, it deprives the owner of his property without due process of law, thus violating section 30 of article II of the Constitution; second, because suoh ordinance took the property of *501the owner without affording him compensation therefor in violation of section 21 of the same article.
In other words, we' held in that case, that the use of property was property itself, within the meaning of the Constitution. We still adhere to that view.
We regard that case as decisive of this one, the only difference between them being that in the former the ordinance only deprived the owner of a portion of his lot, while in the latter he is deprived of all of his property unless he will conform its use to the unconstitutional demands of the city authorities.
In the exercise of legitimate police regulations a municipality may do many things delegated to it as powers to be exercised for the public good. “Of this nature is the authority to suppress nuisances, preserve health, prevent fires, to regulate the use and storing of dangerous articles, to establish and control markets, and the like........This power to restrain a private injurious right of property, is essentially different from the right of eminent domain. It is not a taking of private property for public use, but a salutary restraint on a noxious use by the owner contrary to the maxim, sic títere ttio tit aliemm non laedas.'” 1 Dillon, Mun. Corp. [4 Ed.], sec. 141.
Doubtless a municipality when properly authorized may forbid the noxious use of property by the owner, or of property that has a tendency or likelihood of becoming noxious. St. Louis v. Russell, 116 Mo. 254, but beyond this a city can not go without infringing the constitutional rights of the owner. And though a city has power conferred upon it by the legislature to pass ordinances of a specified and defined character, and though such ordinances thus passed by virtue- of such authority can not.be impeached as invalid because unreasonable, yet such ordinance can not stand if in conflict with the Constitution. 1 Dillon, Mun. *502Corp. [4 Ed.], sec. 328. Now in this case the proposed use is entirely innocuous, and with no tendency to become otherwise. Therefore, judgment affirmed.
Buegess, J., concurs.The foregoing opinion which was adopted in Division 2 has been rejected in banc and for the reasons given in my opinion Judge Buegess and myself dissent.