Folk v. St. Louis.

question put in issue; and the court has no power to permit either party against the objection of the other to adduce other facts or introduce evidence of any character; and where, without proof of further facts, plaintiff's case is not made out, the court ought simply to render judgment against plaintiff without further suggestions, and it is error to make an order based upon the supposition that plaintiff might establish other facts."

In the opinion of the writer the earning and collection of fees in the classes of cases before enumerated is too uncertain to justify an increase in a stated salary of a public official whose right to collect such fees has been discontinued by the statute creating the salary. In some years such fees might exceed $650, while in other years such fees might not amount to anything; and the mere discontinuance of the right to collect uncertain fees cannot afford a satisfactory reason for raising a specific salary payable out of the public treasury. To do so would be to fritter away the salutary provisions of section 8, article 14, of the Constitution of Missouri by pretending to take from an officer fees which he had not, and might never earn, and give him a block of solid cash out of the public treasury in lieu thereof.

IV. In their motion for new trial and in their brief here plaintiff's counsel assert that, by accepting and retaining the fees to which plaintiff was Estoppel. entitled prior to the enactment of the law of 1901, defendant is estopped to deny the constitutionality of the Act of 1901 giving him $650 additional salary in lieu of such fees.

The facts upon which this alleged estoppel is based are not found in the agreed case, which, as we have seen, stands as and for the pleadings of the parties.

Folk v. St. Louis.

Instead of trying to piece out their pleadings by allegations in a motion for new trial, or by brief filed in this court, it would have been far more appropriate for plaintiff's attorneys to have taken the trial court into their confidence and set out in the agreed case the full facts upon which the alleged estoppel must rest.

However, more as a matter of grace than of proper judicial procedure, we have examined the numerous authorities cited to establish this plea of estoppel. Estoppels may, sometimes, be invoked against municipal corporations and between two or more municipal corporations. It has been held that when a municipal corporation has instituted a suit or other proceeding against an individual under the provisions of a statute, such corporation is estopped from disputing the validity or constitutionality of the law upon which the suit or proceeding is based. [Roanoke v. Berkowitz, 80 Va. 616, 1. c. 623; State ex rel. v. Board of Liquidators, 28 La. Ann. 121; City of Mount Vernon v. State ex rel., 71 Ohio St. 428.]

Under our laws the mere erroneous acts of municipal officers are not sufficient to create an estoppel against a municipality. In the well considered case of Wright v. City of Doniphan, 169 Mo. 601, it was held that a city was not estopped from recovering possession of a street because it had levied and collected taxes on such street while it was in the possession of plaintiff Wright. We have not been cited to, and have not been able to find, any case which sustains the contention of plaintiff in his plea of estoppel. We, therefore, rule this point against him.

V. A further matter of estoppel urged by plaintiff is that defendant's city counselor having advised defendant that plaintiff was entitled to a salary of $5000 per annum under the Act of 1901, and defendant having paid said salary of $5000 to plaintiff during a period of more

Estoppel by
Construction.

Folk v. St. Louis.

than two years, it cannot now dispute the legality

of such payments.

In other words, that the practical construction placed upon the Act of 1901 by defendant's agents for a period of over two years is binding upon defendant, and it must pay him at the rate of $5000 per annum during that part of his term for which he refused to receive any salary.

The actual and practical interpretation placed upon constitutions and statutes by public officers charged with their execution is very persuasive upon the court. [Westerman v. Supreme Lodge of K. P., 196 Mo. 670, 1. c. 709.] Such practical construction is usually adopted by the courts when the meaning of the constitution or statute so construed is doubtful. However, we find nothing doubtful about that provision of the Constitution now in judgment, and we are convinced that it would be an exceedingly unsafe and unwise doctrine to hold that, when the agents of a municipality have paid a larger salary to an officer than he was entitled to receive under the Constitution, such over-payment would act as an estoppel upon the municipality, and it must continue paying such excessive salary. Under such a rule constitutional limitations upon official salaries would soon fade away into an "iridescent dream." When a constitutional provision or statute is unambiguous the acts of citizens or officers in violating its provisions for any length of time, however long, cannot work its repeal. [Lucas v. Brown, 127 Mo. App. 645, 1. c. 653.]

By the emergency clause of the Act of 1901, before quoted, it is apparent that said act was made to take effect immediately because it gave the circuit attorney the right to appoint an additional assistant and a stenographer.

Section 9 of said act which increased the salary of the circuit attorney of St. Louis did not and could

Walsh v. Pulitzer Pub. Co.

not, under the Constitution, take effect until the end of plaintiff's term.

It follows that the judgment of the circuit court should be affirmed, without prejudice, however, to the plaintiff, to collect from defendant in a separate action the fees, if any, earned by plaintiff between March 18, 1901, and December 31, 1904, which he would have been entitled to collect and retain if the law of 1901 had not been enacted, which fees have been collected and retained by defendant, provided defendant has no proper defense to interpose against the recovery of the fees, if any, so collected and retained by it.

It is so ordered. Walker and Faris, JJ., concur.

2.

HENRY M. WALSH, Appellant, v. PULITZER PUBLISHING COMPANY.

Division Two, May 20, 1913.

1. LIBEL: Words When Libelous. Words to be actionable should be unequivocally so. The libelous language published is to be given its ordinary import and meaning, unless an explanation accompanies the words which gives them a different meaning, or unless all the hearers understand that they refer to a transaction which cannot constitute the crime which the words imply. -: Innuendo: Colloquium. A court will not in support of a pleading in a libel suit infer a criminal intention when the pleader has not directly averred its existence. Even under our statute, all the averments necessary to a common law pleading to show the meaning of the words must still be made. Where the words are not libelous per se, the use of the innuendo in a petition based thereon is not sufficient, but there must be a colloquium to show they were used in such connection and in such sense as to make them libelous.

3.

:

No Cause of Action Stated. The publication concerning a candidate for circuit attorney that "the mere candidacy of such a person as Walsh for such an office should fill the city with alarm. He has no qualifications for the place. His sponsors and his associates are survivors of the

Walsh v. Pulitzer Pub. Co.

most degraded regime that St. Louis ever knew. He can have no proper motive in aspiring to the place," is not libelous per se, and in order to make them libelous it was necessary to state extrinsic facts to bring out the defamatory meaning, and that not having been done the petition does not state a cause of action.

4. — -: Unfit for Office: Sting Removed. Any sting in the statement that "the mere candidacy of such a person as Walsh for such an office should fill the city with alarm" was removed by the statement which immediately follows, that "he has no qualifications for the place," thereby freeing the publication from any reflection upon his personal or professional character, and confining the criticism to his fitness for the place sought, which is permissible to a newspaper.

5.

6.

-: Degrading Associations: No Crime Imputed. A publication of a candidate for office that "his sponsors and his associates are survivors of the most degraded regime that St. Louis ever knew. He can have no proper motive in aspiring to the place" does not use words that are libelous in themselves. They do not impute a crime; and to have rendered them libelous it was necessary for the petition to state, in addition thereto, facts pointing to the crime imputed, if one was imputed.

Candidate for Office: Newspaper Right. While a candidate for a public office is not to be subjected to a discussion in the public press of his reputation or character at the expense of truth, for a lie is never privileged, it is the right and duty of a newspaper to discuss his fitness for the place he seeks, in such a manner as to present the full facts to the electors, either by contrast or comparison with other candidates, or by an analysis of his individual qualifications.

Appeal from St. Louis City Circuit Court.-Hon. James E. Withrow, Judge.

AFFIRMED.

Henry M. Walsh pro se.

(1) With regard to the possible effect of the words printed and the language used and their effect in the community it has been held that language used affecting a person, particularly in his business or profession are actionable without special damage proven. Coal Co. v. Rose, 2 L. R. A. (N. S.) 743; Minter v.