deserving poor; and whether one falls within one class or the other is often a matter of individual opinion. A man who gives of his wealth to relieve the suffering of fellowmen of a class whom he regards as worthy is to be adjudged as actuated by a charitable intent; and that is so, even though he especially limits his benevolence to that class. It is not necessary that a man's charity should be aimed impartially to all suffering mankind in order to credit him with a charitable intent; nor is he to be adjudged as having intended to bestow his bounty on every sufferer, without regard to class or condition, merely because he has manifested a charitable intent in a certain direction.

And what is here said of a charitable purpose is equally true of a religious purpose. There are many kinds of religion, and religious men are generally very particular about the kind. What is religion in the estimation of one is superstition in the estimation of another. There are men who give largely to the support of one church who would regard it as evil to aid the support of another. John Corby, in this clause of his will which we are now considering, says: "The balance of my said property will be given to advance the cause of religion," etc. What kind of religion-Catholic, or Protestant? The will does not say, yet it manifests an intent to advance the cause of religion; and, if the chancellor should undertake to enforce that purpose, he would have as broad a field to gather from as he would if he should undertake to carry out the charitable intent. It is not every general intent that appears in a will that can be put into effect by a court of chancery. For example, the purpose to disinherit an only heir may clearly appear. The testator may say in his will that he gives him $1, and he is to have no more of the estate; yet, unless the testator wills the property to some one else, the heir will take it under the statute of descents. So, in the case at bar, though a general intent to advance the cause of religion and promote the cause of charity appear, yet, in the absence of any provision in the will showing how that purpose is to be put into effect, the court is powerless. If in such case it should undertake to designate the church or charity to be benefited, it would assume to do for the testator what he did not do for himself.

But the testator did not express in this will an intent to advance the cause of religion and promote the cause of charity in general; but he indicated a purpose to advance the cause of some particular religion and promote the cause of some particular charity, but he left us without information as to the particular religion or the particular charity he had in mind. He gives us to understand that he has confided his purpose in that respect to his wife and will be satisfied with whatsoever she may do. How is the court to know whether or not the wife is carrying out those directions; or, if at her

death the court should appoint another trustee, who is to instruct him in his duties? The testator was not willing to put his property in a condition that a chancellor might give it to the advancement of any religious order he might select or any charity he might prefer. He trusted that matter to his wife alone, and, as she is now dead, no one can ever know what his wishes in that respect were. It is unnecessary to say whether or not the wife had any power at all under that clause of the will, as no act of hers under it is in question here. It is sufficient to say that there is no such trust for a charitable use created in the will as a court of equity can enforce.

The judgment is affirmed. All concur, except WOODSON, J., not sitting.

CURTICE v. SCHMIDT et al. (Supreme Court of Missouri, Division No. 1. March 28, 1907.)

1. CONSTITUTIONAL LAW MUNICIPAL CORSTREET IMPROVEMENTS-CHARTER PROVISION-DUE PROCESS OF LAW.

PORATIONS

-

Kansas City Charter, art. 9, § 23, providing that no objection can be urged in an action on a special tax bill, unless the objections were filed with the board of public works within 60 days of the issuance of the bill, violates the constitutional guaranty that no one shall be deprived of property without due process of law. [Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Constitutional Law, §§ 873-875.] 2. TIME-COMPUTATION-SUNDAY.

Under Kansas City Charter, art. 9, § 2, providing that the board of public works may designate the material to be used in paving, where the property owners failed to petition for the use of a specified kind within 10 days after the ordinance for the improvement had been published 10 days, Sunday must be counted in computing the time limit, and hence, where such an ordinance was first published on September 14th, a petition filed October 5th was out of time, and the board had the right to designate the material.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Time, § 34.]

3. SAME-COMPLETION OF WORK-DELAY-EFFECT ON TAX BILL.

Where a paving contract, made November 21st, provided the work should be done within 90 days, unless the engineer should direct otherwise, and stipulated $10 per day as damages for a delay, and the engineer suspended work from November 30th to February 20th on account of freezing weather, but it was completed April 23d, the tax bill issued on the improvement was not void because the work was not completed within the 90-day limit.

4. SAME-CONTRACT-RECOGNITION OF EIGHTHOUR LAW-VALIDITY.

A street paving tax bill is not void because the contract for the improvement required the contractor to observe an eight-hour labor ordi

nance.

5. SAME-SPECIFICATION AS TO MATERIAL-VALIDITY EFFECT ON TAX BILL.

Under Kansas City Charter art. 17, § 12, requiring certain city improvements to be paid for in special tax bills to be let by contract to the lowest and best bidder, a provision by the board of public works that the brick of a certain company should be used in paving a street, and a stipulation in the contract to that effect,

were void and against public policy, as tending to favor a monopoly and restrict competition, and hence tax bills issued for the improvement were void; it appearing that vitrified brick for paving use were a common article of manufacture and sale.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, §§ 855, 1065.]

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by J. M. Curtice against Frank F. Schmidt and another in the circuit court. Defendants appealed to the Kansas City Court of Appeals, where judgment for plaintiff was reversed, and the case was certified to the Supreme Court. Judgment of circuit court reversed, and judgment rendered for defendants.

N. F. Heitman, for appellants. Scarritt, Scarritt & Jones, for respondent.

GRAVES, J. Action to enforce the collection of an installment tax bill issued by Kansas City of date April 29, 1897. Judgment was for the plaintiff in the circuit court of Jackson county, where trial was had before the court without the intervention of a jury. Defendants appealed to the Kansas City Court of Appeals, where the judgment was reversed. Plaintiff, who had injected a constitutional question by way of instruction in the lower court. and had preserved it throughout in the Court of Appeals, then instituted a mandamus proceeding in this court to compel the Court of Appeals to certify the cause to this court. The mandamus proceeding was heard by this court, and the peremptory writ of mandamus awarded. State ex rel. v. Smith, 177 Mo. 69, 75 S. W. 625. Thus, the case is here by our Own opinion. It might be well to add that plaintiff filed his motion to transfer to this court before the case was heard and determined by the Kansas City Court of Appeals, and no laches are chargeable to plaintiff in regard to the proper preservation of his point.

In the opinion of Marshall, J., in the mandamus case, supra, the issues of the case at bar are thus stated: "J. M. Curtice sued Frank F. and Mollie Schmidt in the circuit court of Jackson county upon a certain tax bill, issued April 29, 1897, by virtue of Ordinance 7,599, authorizing the paving of Nineteenth street between Tracy avenue and Olive street; said tax bill being issued against lot 58 of Elder's addition to Kansas City and owned by defendants herein. The answer of the defendants in that case is: First, a general denial, except as otherwise expressly admitted in the special defenses. Second, an admission that the plaintiff owns the tax bill and defendants own the land. Third, that the tax bill is void because the work was not completed within the time provided by the contract. Fourth, that the tax bill is void because the contract required the contractor to observe the 'eight-hour' ordinance of Kansas City. Fifth, that the tax bill is void because the ordinance authoriz

ing the paving of the street specified six kinds of materials that might be used in paving the street, and that the owners of a majority in front feet of the lands fronting the improvement selected, as they had a right to do, Trinidad Lake Asphalt as the material to be used for such paving (it being one of the six materials mentioned in the ordinance from which a selection was to be made), but that the board of public works disregarded the selection of the property owners and designated Pittsburg (Kansas) Vitrified Brick Company's vitrified brick as the material to be used. Sixth, that, after the said board wrongfully designated such vitrified brick, specifications for work were prepared, and a contract therefor was let; that the contract was confirmed by ordinance of the city; and that such designation, specifications, contract, and ordinances are illegal and void, first, because they are contrary to the Kansas City charter requiring said pavement to be let to the lowest and best bidder; second, because they were unauthorized by the Kansas City charter, and in violation thereof in excluding from use in the pavement in question all vitrified brick of similar quality, excepting Pittsburg (Kansas) Vitrified Brick Company's vitrified brick. Seventh, that, prior to the passage of the ordinance authorizing the improvement, the board of public works made a pretended designation of the materials which the property owners might select from, but that said designation did not comply with the charter of Kansas City, and that the details specified in the said designation of such materials all specify some particular special kind of material in such way as to promote monopoly and prevent competition, and that such designation violates the charter of Kansas City, which re quires such work to be let to the lowest and best bidder."

The reply is a general denial, with a special plea, as follows: "Further answering, plaintiff states that none of the defendants, nor any owner of the tract of land described in the petition and in the tax bills therein referred to, nor the owner of any interest therein, did, within 60 days from the issue of the said tax bills described in the petition, file with the board of public works of Kansas City a written statement of each and all objections which he or they had to the validity of such tax bills, the doing of the work mentioned in said tax bills, the furnishing of the materials charged for, the sufficiency of the work or materials therein used, or of any mistake or error in the amount thereof, or a statement of any of the objections of facts alleged in the amended answer; and that, by reason of the premises, the defendants ought not to be heard to plead or prove all or any of the facts alleged in their amended answer."

When the case came on for trial, the plaintiff introduced a resolution of the board of public works relating to the issuance of spe

cial tax bills, and the special tax bill sued on, and then rested. The defendants offered in evidence the ordinance authorizing the improvement, and also section 811 of the Revised Ordinances of Kansas City for 1898, regulating the advertising for bids for public work, and requiring the time for the completion of the work to be specified. Thereupon the following proceedings were had: "By Mr. Scarritt: We object to the introduction of any evidence on behalf of defendants relative to objections to the tax bills sued on, for the reason that no objections thereto have been stated in writing and filed with the board of public works of Kansas City, by the defendants or any of them or those under whom they claim within 60 days after the date of the issue of such tax bills; and especially we object, for the same reasons, to any evidence as to the petitions addressed to the board of public works in respect to the material with which the street should be paved, and also as to the time consumed in the execution of the work. (Which objection was by the court overruled, to which ruling of the court plaintiff then duly excepted.) By Mr. Heitman: It is admitted that no objection whatever to the tax bills sued on was stated and filed with the board of public works of Kansas City within 60 days after the issue of those tax bills." The court then permitted the defendants to introduce evidence in support of their several defenses, and also heard evidence offered by the plaintiff bearing upon the several defenses.

At the close of the evidence, the plaintiff asked the court to declare the law to be as follows: "(1) The court declares the law to be that, under the pleadings and the evidence, the findings and judgment should be for the plaintiff. (2) The court finds the facts to be, under the pleadings and admissions of the parties, that none of the defendants, nor any owner of the land described In the petition are of any interest therein, did, within 60 days after the date of the issue of the tax bill sued on, file with the board of public works of Kansas City a statement of any objections, which he or they had to the validity of the tax bill sued on, the doing of the work mentioned therein, the furnishing of the materials charged for, the sufficiency of the said work or materials therein used, or any mistake or error in the amount thereof. (3) The court declares the law to be that all the evidence offered and introduced tending to prove that the work of paving Nineteenth street, for which the tax bill sued on was issued, was not completed within 90 days after the contract therefor became binding, is irrelevant and immaterial under the pleadings and admissions of the parties, and is not considered by the court in determining the issues in this case. (4) The court declares the law to be that the contract between Kansas City and Fred Feigel for paving Nineteenth street, in evidence, is a valid contract; that it was con

firmed by ordinance of Kansas City, November 21, 1896, and defined and established the rights of the respective parties thereto; and that to hold said contract void, in whole or in part, is to deprive the plaintiff of his property without due process of law and contrary to the terms of the fourteenth amendment to the Constitution of the United States. (5) The court declares the law to be that section 23, art. 9, of the charter of Kansas City, is constitutional and valid, and is to be taken and considered as incorporated in and forming a part of the ordinance authorizing the improvement in question, and the contract therefor, which are in evidence, as though written into each of them, and that to hold such section void, and permit the defendants in this suit to plead or prove any objection or objections to the tax bills sued on, when no such objection or objections have been stated in writing and filed with the board of public works of said city within 60 days from the date of the issue of the tax bill sued on, is to violate the obligations of the said contract, and to deprive the plaintiff of his property without due process of law, contrary to section 10, art. 1, of the Constitution of the United States, and contrary to the provisions of sections 15 and 30, art. 2, of the Constitution of Missouri. (6) The court finds that the contract for the work in question provides that said work shall be begun within 10 days after said contract binds and takes effect, and shall be prosecuted regularly and uninterruptedly thereafter (unless the engineer shall specially direct otherwise in writing), with such force as to secure its full completion within 90 days from the date of its confirmation; that, within said 10 days after said contract bound and took effect, the said engineer did specially direct in writing that, owing to freezing weather and the lateness of the season, the contractor for said work is hereby ordered to cease operations until further notice; that said contractor was not notified by said engineer to proceed with the said work before February 20, 1897; that the said work was completed on April 23, 1897; and that, deducting the period of the suspension of the said work as ordered by the said engineer, the same was completed within 90 days after the confirmation of the contract for said work."

The court gave all these instructions, except the fifth, and refused that. The defendant asked 16 instructions, covering all the phases of their several defenses; but the court refused them all. The court then entered judgment for the plaintiff, and the defendants appealed. The appeal was allowed to the Kansas City Court of Appeals. The plaintiff moved the court to transfer the case to this court; but the court overruled the motion, proceeded with the case, and reversed the judgment of the circuit court, without remanding the case. The opinion of the Kansas City Court of Appeals, by Broaddus,

J., is likewise found in this opinion by Marshall, J., supra. This, with such further excerpts from the evidence as will be made in the course of the opinion, states the case. 1. Instruction No. 5, supra, refused by the trial court, squarely raises the validity of section 23 of article 9, of the charter of Kansas City, and it was on the constitutional question here raised that this court compelled the Court of Appeals to certify the cause to this court. The identical question was before division No. 2 of this court in the case of Barber Asphalt Pav. Co. v. Ridge, 169 Mo. 376, 68 S. W. 1043, and again in Paving Co. v. Munn, 185 Mo., loc. cit. 566, 83 S. W. 1062. Judge Gantt, who wrote the opinion in both cases, after a review of the law in the Ridge Case, and in an opinion full of reason, holds such charter provision void. In that opinion, and the one following it, we concur, and further discussion of the point is unnecessary.

2. The second proposition is as to the time within which the property owners undertook to select the character of the material to be used in the construction of the street pavement. Upon this question we think that the Court of Appeals held correctly under this record. The ordinance authorizing the paving to be done was approved September 9, 1896, and was first published on September 14th. The defendants claim that, by a petition signed by the resident property owners of the city, who owned the majority in front feet of the land fronting on the part of the street to be improved, Trinidad Lake asphalt was selected as the material for the pavement, which petition was filed with the board of public works on October 5, 1896. This selection they had a right to make, under section 2 of Ordinance No. 7,599; the ordinance authorizing the work as well under section 2 of article 9 of the charter of Kansas City. Section 2 of article 9 of the charter says: "Provided further however that if the board of public works shall unanimously recommend to the city council that any business street or part thereof be paved * and the payment thereof

is to be made in special tax bills, and the common council shall, by ordinance, order such work to be done by a vote of two-thirds of the members elect of each house of the common council, then such work may be done without any resolution, as hereinbefore provided and regardless of such remonstrance. When the work shall be so recommended by the board of public works and so ordered by the common council as last above mentioned, the resident owners of the city who own a majority in front feet of the lands belonging to such residents and fronting on such street or part thereof

to be improved shall have the right to select the material with which such street * or part thereof shall be paved from not less than two kinds of materials, to be designated by the board of public works. Such selec

tion to be made by them within ten days after such ordinance shall have taken effect and been published for ten days in the newspaper at the time doing the city printing, which selection shall be by petition addressed and delivered to the board of public works. If such selection be not made within such time, then the board of public works shall designate the material with which said street * or part thereof shall be

improved."

The board of public works had unanimously recommended the paving of the street as a business street, and the ordinance therefor passed the council by the required two-thirds vote. It is a disputed question as to whether or not the petition designating Trinidad Lake asphalt was signed by the requisite number of qualified signers, and much evidence was introduced thereon. A consideration of this dispute is not necessary. Under the charter provision, and the ordinance, the petition was not filed within the 10 days allowed, unless Sunday be excluded in computing the time. This should not be done. Sunday should be counted. City of St. Joseph ex rel. v. Landis, 54 Mo. App. 315; Clapton v. Taylor, 49 Mo. App. 117; German Bank v. Stumpf, 73 Mo. 315; State v. Green, 66 Mo. 631. It therefore appears that the property owners failed to avail themselves of the privilege given them. On October 20th the board of public works made the designation of the material to be used, in this language: "The board designates Pittsburg (Kansas) Vitrified Brick Company's vitrified brick on concrete to be laid according to detail one (1), of brick pavement approved by said board August 11, 1896. and on file in the office of said board as the material with which Nineteenth street from the east line of Tracy avenue to the west line of Olive street shall be paved as a business street, as provided by Ordinance No. 7,599." The validity of this order as to its substance will be discussed in a succeeding proposition. Suffice it to say here, that the property owners, under the law, failed to make their designation in time, and the board of public works then had the right to designate, and had that right October 20th, when the designation was made.

3. Nor is the tax bill void because the work was not finished in proper time. The contract provides: "(6) The work embraced in this contract shall be begun within ten (10) days after this contract binds and takes effect, and shall be prosecuted regularly and uninterruptedly thereafter (unless the engineer shall especially direct otherwise in writing) with such force as to secure its full completion within ninety (90) days from the date of its confirmation; the time of beginning, rate of progress and time of completion being essential conditions of this contract. And if the contractor shall fail to complete the work within the time above specified, an amount equal to the sum of ten (10) dollars

On

per day for each and every day thereafter, until such completion, shall be deducted as liquidated damages for such breach of this contract from the amount of the final estimate of sald work." The ordinance authorizing the work fixed no time within which it was to be begun or completed. The contract was confirmed by Ordinance No. 7,869 and became binding November 21, 1896. The work was commenced within 10 days. this contract the city engineer made the following notation: "November 30th, 1896. Owing to the freezing weather and the lateness of the season, the contractor for this work is hereby ordered to cease operations until further notice from this office. Henry A. Wise, City Engineer." This order remained in force until February 20, 1897. The work was completed and accepted April 23, 1897, and the tax bills issued April 29th, six days later.

Although there is no time limit in the ordinance itself, yet such ordinance would be authority for a contract to complete the work within a reasonable time. The contract, by the clause above quoted, fixes a time limit, with a qualifying provision. This identical question was discussed in Heman v. Gilliam, 171 Mo. 258, 71 S. W. 163. In that case, Brace, P. J., overruled the case of Ayres v. Schmohl, 86 Mo. App. 349, for holding just what the defendants would have us hold in this case. In speaking of Ayres' Case, Judge Brace says: "With the reasoning of the opinion in that case we have no fault to find. The fault is in the application of the reasoning to the facts of the case. If the contract in that case had fixed a certain and definite time within which the work must have been completed at all events, then the conclusion reached that the tax bills were invalid would follow. But the argument leaves entirely out of view the qualifying provision as to time in that contract, similar to the one in the contract at bar, by which the time within which the work was to be completed was rendered indefinite, as we have seen. It is true a time within which the work was to be completed was specified in the contract; but, in immediate connection therewith, it was also specified that, if not completed within that time, the contractor should suffer a forfeiture, not of all his pay under the contract, as would have been the case but for that provision, but only of a certain proportion thereof. The contract contemplated that the work might not be completed within the time stated, and made provision for such a contingency, and, upon its happening, for an extension of such time upon terms. All that the ordinance required was that the work should be completed within a reasonable time. All that the contract required was that the work should be completed within a stated time, or, in case it was not completed within that time, that certain deduction should be made from the moneys payable under the contract, as therein stated. Although the contractor may not have completed the work within the time 101 S.W.-5

stated in the contract, yet, if he completed the work within a reasonable time, the ordinance was complied with, and, if the deductions required by the contract are made from the tax bills, the contract is complied with, and, when the requirements of both ordinance and contract are fully satisfied, surely neither the city, the property owner, nor anybody else has any ground of complaint against the contractor; and in such case he should be entitled to have tax bills against the property owners for his proportionate share of the contract price, less the amount of such deductions, and to that extent the tax bills would be good. Hence, in this case we do not think the court committed error in refusing to declare the tax bill void from the mere fact that the work may not have been completed within the specified time stated in the contract, and, finding none of the errors well assigned, the judgment of the circuit court is affirmed."

Heman v. Gilliam, 171 Mo. 258, 71 S. W. 163, is cited with approval in Heman Construction Co. v. Loevy, 179 Mo., loc. cit. 470, 78 S. W. 613, in this language: "In Heman v. Gilliam, 171 Mo. 258, 71 S. W. 163, it was held that delay in completing the work did not make the tax bill void, but that the property owner was entitled to have the proportion of the penalty properly apportionable to his lot deducted from the tax bill against the property. The defendant is not in position to claim such a deduction in this case, for two reasons: First, because he made no such demand for a deduction in the trial court, but, on the contrary, as shown by his tenth instruction, tried the case in that court upon the theory that the delay rendered the tax bill void; and, second, because there is no substantial evidence in the record that there was any delay whatever."

And, again, Gantt, P. J., in Paving Co. v. Munn, 185 Mo., loc. cit. 569, 83 S. W. 1062, couches his approval of the Heman Case in this language: "But it is urged that a different conclusion was reached by this court in Heman v. Gilliam, 171 Mo. 258, 71 S. W. 163, and that Neill v. Gates, 152 Mo. 585, 54 S. W. 460, and the decisions of the Kansas City Court of Appeals, on this point, are not in harmony with this latest decision of this court on that question. In Heman v. Gilliam, supra, there is a clear and admirable review of all the cases above quoted on this point by Judge Brace, and he points out that in that case the ordinance under which the work was done, for which the tax bill was issued, 'did not require the work to be completed within any specified time. The ordinance is silent upon the subject, and says nothing as to when the work shall be commenced or completed.' Our learned Brother in that case clearly distinguishes that case from Neill v. Gates [152 Mo. 585, 54 S. W. 460], Rose v. Testrail [62 Mo. App. 352], McQuiddy v. Brannock [70 Mo. App. 535], Whittemore v. Sills, 76 Mo. App. 248, Safe Deposit Co. v.