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In re Webers.

-: Transfer of Causes to Supreme Court. A habeas corpus proceeding involving a question as to the constitutionality of a statute will not be dismissed by the Court of Appeals, but will be transferred to the Supreme Court. HABEAS CORPUS. ORIGINAL PROCEEDING.

TRANSFERRED TO SUPREME COURT.

C. J. Anderson for petitioner.

Holland, Rutledge & Lashly for respondents.

BECKER, J.-This is a proceeding by habeas corpus, instituted by the petitioner, for the purpose of obtaining his discharge from the custody of William Young, Chief of Police of the city of St. Louis, and Robert M. Hanna, Captain of Police of said city, by whom he is held, having been arrested on the 27th day of July, 1917, in the city of St. Louis and State of Missouri, and taken to the Third District Police Station, of said city, charged with having violated an ordinance of the city of St. Louis. Shortly after the arrest, a bond in the sum of $200, in due form, was presented for the release of said petitioner, which bond the officer in charge of said station refused to accept because the petitioner failed and refused to pay the said officer the sum of fifty cents, as provided for by section 3459 of the Revised Statutes of Missouri, 1909, as amended by the Session Acts of 1913, page 193, which provides in part as follows:

"Section 3459.-Fund, how created-police relief association. This fund shall be created in the following manner: all percentages of rewards allowed to members of any police force under the regulations of its department together with a fee of fifty cents for each and every bond taken by any police officer for the appearance of any person charged with violating any city ordinance, which said officer is authorized then and there to collect: Provided, however, that no more than one bond fee shall be taken for any arrest, regardless of the number of charges which may be placed against the person arrested, all of which money herein designated shall be paid to the treasurer of said relief association."

In re Webers.

On the day of the arrest a petition for habeas corpus, in behalf of Mr. Webers, was presented to Hon. GEORGE D. REYNOLDS, Presiding Judge of this court, during the vacation of the court, who issued the writ directed to William Young, Chief of Police of the city of St. Louis, Missouri, and Robert M. Hanna, Captain of the third police district in the city of St. Louis, Missouri, commanding them to produce Mr. Webers before said judge forthwith, which was done, and thereupon respondents were granted leave in which to file returns to the writ before Judge REYNOLDS, which was accordingly done. On a hearing of the matter, on August 2, Judge REYNOLDS transferred the proceeding to the St. Louis Court of Appeals.

Before the day set for the hearing by the court, the respondents filed a motion to dismiss the proceeding upon the ground that the court had no jurisdiction because this case involved directly the construction of article 4, section 53, clause 26; article 4, sections 46 and 47, and article 10, section 3, of the Constitution of Missouri, and on the further ground that this court is without jurisdiction, as this action is brought solely for the purpose of testing the constitutionality of section 3459 of the Revised Statutes of Missouri, 1909.

Whenever an application for a writ of habeas corpus is filed, this court, or any judge thereof, is clothed with the power to, and charged with the duty of issuing a writ of habeas corpus in the first instance, upon proper application therefor; the mere filing of an application for a writ of habeas corpus necessitates that the judge or court to whom such application is made, shall examine into the same at least to an extent sufficient to determine whether or not such judge or court has jurisdiction thereof.

We have carefully examined the record and hold that the constitutionality of section 3459 of the Revised Statutes of Missouri, 1909, and amendments thereof, is involved in the case.

Our jurisdiction to determine the cause has been questioned on the ground that even in habeas corpus

In re Webers.

are without jurisdiction where a constitutional question is involved on the record. As to this matter we entertain grave doubt, which should however, in accordance with the custom of this court, be resolved in favor of the jurisdiction of the Supreme Court. [See Gartside v. Gartside, 42 Mo. App. 513.]

However, in view of the proceedings had in Ex Parte Nelson, 251 Mo. 63, 157 S. W. 784, we are constrained to hold that while this proceeding is one beyond our jurisdiction, the cause should not be dismissed but be transferred to the Supreme Court. It is true that the question was not squarely adjudicated in the Nelson case, but that proceeding in habeas corpus was by the Kansas City Court of Appeals transferred to the Supreme Court, when the former court found and determined that the issues made involved a constitutional question. Upon such transfer of the proceeding the Supreme Court took jurisdiction of the cause and disposed of it, thereby sub silentio at least, asserting jurisdiction in the matter.

The motion to dismiss is accordingly overruled and the cause ordered transferred to the Supreme Court for its determination. Reynolds, P. J., and Allen, J., concur.

NOTE: The opinion, In re Albert Webers, was received by the Reporter August 1, 1918,

CASES DETERMINED

BY THE

ST. LOUIS KANSAS CITY AND SPRINGFIELD

COURTS OF APPEALS

AT THE

MARCH TERM, 1918.

CHRISTOPHER & SIMPSON ARCHITECTURAL IRON & FOUNDRY COMPANY, Appellant v. E. A. STEININGER CONSTRUCTION COMPANY, and, MOUND CITY ICE & COLD STORAGE COMPANY, Respondents.

St. Louis Court of Appeals. Opinion Filed July 12, 1918.

1. APPELLATE PRACTICE: Review: Reference: Conclusiveness of Referee's Findings. In a suit at law, involving a long account, such as to make the case one for compulsory reference, the findings of the referee, approved by the court, have the force and effect of a special verdict of a jury, and are binding on appeal if supported by substantial evidence.

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In such case, the appellate court will not review the evidence to determine its weight, but may review it to determine whether or not there is substantial evidence to support the findings of fact.

3. MECHANIC'S LIENS: Lien Claims: Time Indebtedness Accrued: Time in Which to File Lien Claims. Where a subcontractor furnished material and performed labor continuously between August 10, 1906, and October 22, 1906, and the work was not substantially completed until October 22, 1906, and on November 14, 1906, did certain work which was not voluntary for the purpose of extending the lien period, but was required to be done by the architects of defendant owner in order that the work might be com200 M. A.-3] 33

Architectural Iron & Foundry Co. v. Construction Co.

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pleted as required by the several contracts, the demand accrued on November 14, 1906, and the lien claim filed on February 21, 1907, was seasonably filed.

-: Contents of Lien Account: Accuracy. The fact that the lien account proper, contained in the lien paper, consists merely of specified items of material, etc., each item being preceded by a date and followed by a specified price, does not make the account insufficient on its face, where the account in the lien paper bears a heading stating that the account is for materials furnished and work and labor done in the erection of the building, and preliminary to the account it is stated in the lien paper that the lienor, with a view to avail itself of the benefit of the statute relating to mechanics' liens, files the account set forth, for work and labor done and materials furnished, it being evident that the prices charged for the various items were intended to include not only the reasonable value of the materials furnished, but the reasonable value of the work and labor performed in installing in the building the items mentioned in the lien paper.

-: Lien Claim: Construction. In determining sufficiency of the lien paper filed, the paper is to be considered as a whole.

6. TRIAL PRACTICE: Trial Before Referee: Necessity of Objection: Exception to Referee's Report Comes Too Late. Where no objection was made to the lien account on the trial before a referee, and no point made of the matter whatsoever, the attempt to challenge the account on this ground by an exception to referee's report, came too late.

7. MECHANICS' LIENS: Lien Account: Credits. A subcontractor's lien account was not insufficient because of failure to credit the contractor with unliquidated demands one of which was unknown to the subcontractor and the other was a matter in dispute between the parties.

8. CONTRACTS: Building Contracts: Construction: Working Days. Where a building contractor agreed to complete the work within fifty-five working days from the date of the contract, the term "working days" excludes not only Sundays and holidays, but also days upon which no work could be done because of weather conditions, but includes Saturday as a working day, in the absence of anything in the contract to indicate a contrary intention, although owing to labor rules work was suspended on Saturday afternoons. -: Meaning of Words. Words used in contracts are to be construed with reference to the nature of the contract in which they are employed.

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