State ex inf. Hales v. Walker. the same, and in that case, the court held the judgment of incorporation void. This may be all granted. But there is a radical difference in the facts in this case, and the facts in that case. The court expressly based its decision in that case on the ground that there were no remonstrances filed. [See pp. 207-8.] In the case at bar, there were five remonstrances against including portions of the city of Butler in said district, as proposed by the petition filed, and a portion of the property thus objected to was excluded from the boundaries. The remonstrances were therefore not all overruled. In such case the statute (Sec. 10938) expressly authorized the county court to "make any change in the boundaries of the proposed district as the public good may require and make necessary, and if after such changes are made, it shall appear to the court that such petition is signed by the owners of a majority of all the acres of land owned by residents of the county residing within the district as so changed, the court shall make an order incorporating such public road district, and such order shall set out boundaries of such district as established." All of this is recited and affirmatively appears in the judgment or order of incorporation assailed in this case. It is only in case no remonstrances are "filed or all remonstrances filed overruled," that an amended petition is necessary to enable the county court to depart from the boundaries prescribed in the petition of the property owners. The language of said Section. 10938 in that regard is as follows: "If no remonstrance shall have been filed, or all remonstrances filed are overruled by the court, the court shall determine whether such petition has been signed by the owners of a majority of the acres of land owned by residents of the county residing within the district, and if so, shall make an order incorporating the district with the boundaries given in the petition, or such boundaries as may be set forth in an amended petition signed by the owners of a majority of the acres of land owned by residents of the county residing within the district, affected thereby; and such amend 301 Mo.-9 State ex rel. v. McKelvey. ed petition may be filed at any time before the making of the order establishing a road district. [See also, State ex inf. v. Colbert, 273 Mo. 1. c. 207-8.] We must, therefore, rule this contention against appellants. Finding no error in the record, the judgment below is affirmed. Lindsay, C., concurs. PER CURIAM:-The foregoing opinion by SMALL, C., is adopted as the opinion of Court in Banc. All of the judges concur, except James T. Blair and Graves, JJ., who dissent. THE STATE ex rel. BETTER BUILT HOMES & MORTGAGE CO. v. JAMES N. MCKELVEY, Director of Public Safety of City of St. Louis. In Banc, November 20, 1923. ZONING ORDINANCE: Invalid. For the reasons stated in the companion cases of City of St. Louis v. Evraiff, 301 Mo. 231, and State ex rel. Penrose Investment Co. v. McKelvey, 301 Mo. 1, the "Zoning Ordinance" of the city of St. Louis is held invalid, as not constituting an authorized exercise of the police power. [GRAVES, J., concurs in the result, and bases this limited concurrence upon the grounds stated in his separate opinion in State ex rel. Penrose Inv. Co. v. McKelvey; JAMES T. BLAIR, RAGLAND and WHITE, JJ., dissent, for the reasons expressed by WHITE, J., in the Penrose Case.] Mandamus. PEREMPTORY WRIT AWARDED. Conway Elder and Leahy, Saunders & Walther for relator. George F. Haid and Oliver Senti for respondents. State ex rel. Clayton v. Bland. WALKER, J.—This case, as in City of St. Louis v. Evraiff et al. and State ex rel. Penrose Investment Co. v. McKelvey, Building Commissioner, involves the question as to the validity of Ordinance No. 30199 of the city of St. Louis, designated as the Zoning Ordinance. In those cases we held the ordinance to be invalid as not constituting an authorized exercise of the police power. The issue here being the same as in those cases a like conclusion must follow. Our peremptory writ should therefore issue and it is so ordered. Woodson, C. J., and David E. Blair, J., concur; Graves, J., concurs in the result; James T. Blair, Ragland, and White, JJ., dissent for reasons expressed by White, J., in Penrose Case, 301 Mo. 1; Graves, J., concurs in separate opinion. GRAVES, J. (concurring). In this case I concur in the result of the opinion, but base this limited concurrence upon the grounds stated in my separate concurring opinion in State ex rel. Penrose Investment Company v. McKelvey, 301 Mo. 1. THE STATE ex rel. CHARLES E. CLAYTON v. EWING C. BLAND et al., Judges of Kansas City Court of Appeals. In Banc, November 20, 1923. 1. CONTRACT: To Be Completed in 130 Days: Computation of Time: Sundays Included. In computing the time within which a public work is to be completed, under a contract requiring the contractor to complete the work within one hundred and thirty days and making time of completion an essential condition, Sundays are to be counted, and the work must be completed within one hundred and thirty days including Sundays. 2. : -: Exception: Violation of Statute Prohibiting Work on Sunday. The contract for the paving of a street required the work to be completed within one hundred and State ex rel. Clayton v. Bland. thirty days, and to be "prosecuted regularly and uninterruptedly," the "rate of progress and time of completion being essential conditions," but the time fixed for completion to "be extended for such length of time as the contractor may be actually and necessarily prevented from pursuing said work by reason of bad weather, a general strike of his employees, or injunction against him." Excluding all Sundays from the count the work was completed within one hundred and thirty days, but otherwise not. Held, that it is clear that the contract, by excepting bad weather, injunctions and strikes, did not except Sundays from the computation, and there being no express exception of Sundays they must be counted; and said contract did not require work to be done on Sundays and was not violative of the statute prohibiting work on Sunday, but meant that the work must be performed within the work days embraced in the one hundred and thirty days after the days consumed by strikes, bad weather and injunctions are eliminated, and the contract not having been performed within such one hundred and thirty days a suit on a special tax-bill issued in payment for the work must fail; and the opinion of the Court of Appeals, ruling that Sundays must be excluded from the computation and that if not excluded the contract violated said statute, contravened many decisions of the Supreme Court. Certiorari. OPINION OF COURT OF APPEALS QUASHED. Strop & Silverman for petitioner. (1) The rule adopted in this State for the computation of time is that Sundays and holidays are to be counted, except where excluded by statute or by necessary implication. In ruling the contrary in the case at bar, the Court of Appeals has failed to be governed by the following controlling cases of this court: Curtice v. Schmidt, 202 Mo. 703; State ex rel. v. Smith, 177 Mo. 69: i State v. Railroad, 239 Mo. 239 to 247; State v. Green, 66 Mo. 644; Patchin v. Bonsack, 52 Mo. 431. (2) In ruling that "in the face of the statute forbidding labor on Sunday, the contract must be construed as having excluded Sundays from the one hundred and thirty days specified therein," the Court of Appeals failed to follow the controlling decision of this court in Sheffield v. Balmer, 52 Mo. 474. (3) The Court of Appeals has failed to State ex rel. Clayton v. Bland. give to the words of the contract their plain, ordinary and usual sense, and in so doing has failed to follow controll ́ing decisions of this court. Liggett v. Bank, 233 Mo. 601; State ex rel. v. Ellison, 266 Mo. 590; Donovan v. Boeck, 217 Mo. 87; Patchin v. Bonsack, 52 Mo. 433. John E. Dolman for respondents. (1) Whether the construction of the contract by the Court of Appeals be correct or incorrect this court has no authority to quash its judgment on that ground. State ex rel. v. Reynolds, 233 S. W. 485; State ex rel. v. Allen, 236 S. W. 870; State ex rel. v. Reynolds, 230 S. W. 642; State ex rel. v. Allen, 242 S. W. 78; State ex rel. v. Reynolds, 272 Mo. 588; State ex rel. v. Reynolds, 214 S. W. 369; State ex rel. v. Allen, 246 S. W. 540. (2) The last previous decision of this court concerning the computation of time and wherein the statute prohibiting labor on Sunday is applied, is the case of Porter v. Paving Co., 214 Mo. 1, cited and followed by the Court of Appeals in its opinion, and which case, as stated by that court in its opinion, was approved by this court in State v. Railroad, 239 Mo. 1. c. 246. (3) In State v. Railroad, 239 Mo. 196, cited by petitioner as one of the last controlling decisions of this court, announcing a different rule than that announced in the Court of Appeals' decision in the case at bar, is not applicable in any respect, the only question decided being that the running of passenger trains upon Sunday was a work of necessity and therefore came within the exception stated in the Sunday Statute. (4) The Sunday Statute was not involved in Curtice v. Schmidt, 202 Mo. 703, or in State ex rel. v. Smith, 177 Mo. 69, cited by petitioner in support of his contention. (5) The case of State v. Green, 66 Mo. 631, cited by petitioner, has reference to time in which to make challenge of jurors, does not involve the Sunday labor statute, and is in no wise similar to the case at bar, either upon the facts or the principal of law announced. The same is true of the case of Patchin v. Bonsack, 52 Mo. 431, cited by petitioner. (6) The only case cited by petitioner |