of incorporation of territory embracing their | over executors, administrators, guardians, curaproperty, and may appeal therefrom, challenging tors, minors, idiots, lunatics and persons of unthe sufficiency of the petition for incorporation. sound mind." Appeal from St. Louis Circuit Court; John W. McElhinney, Judge. "Not to be officially published." Petition in the county court by Otis A. Rugh and others for an order incorporating certain territory as the City of Uniondale. An order of incorporation was made from which Catherine Coyne and others who had remonstrated separately appealed to the circuit court, and from an order dismissing their appeals they appeal. Judgment of the circuit court reversed, and the cause certified to the Supreme Court. Randolph Laughlin, of St. Louis, for appellants. Geo. B. Logan, of St. Louis, for respondents. ALLEN, J. On August 17, 1914, a petition was filed in the county court of St. Louis county for an order incorporating certain territory in said county as a city of the fourth class, under the name "Uniondale." Certain proceedings were thereafer had in said county court under this petition, and on December 3, 1915, that court, by an order and judgment entered of record, ordered and adjudged that the inhabitants of the territory mentioned be "invested with all the rights, powers, and privileges of a city of the fourth class, by the name of Uniondale," etc. Thereafter these appellants Catherine Coyne and others, who had previously filed a petition of remonstrance in the county court, filed in that court their affidavits and bonds for appeal, and were granted separate appeals to the circuit court of St. Louis county. A transcript of the proceedings in the county court was duly filed in the circuit court, and thereafter the city of Uniondale, appearing specially by counsel, moved the circuit court to dismiss the cause upon the ground that the court was without jurisdiction to proceed therein for the reason that no appeal will lie from such an order or judgment of a county court. This motion was sustained, and these appellants, after interposing a motion for new trial, which was overruled, have brought the case which was overruled, have brought the case here by appeal. [1] The only question before us, therefore, is whether or not, under our law, an appeal lies from an order or judgment of a county court incorporating a city. It appears that there is no special statute regulating the matter, and that it is to be determined by a consideration of sections 3956 and 4091, Revised Statutes 1909. Section 3956 provides as follows: Section 4091, supra, is as follows: "In all cases of appeal from the final determination of any case in a county court, such in the same manner as is now provided by law appeal shall be prosecuted to the appellate court for the regulation of appeals from justices of the peace to circuit courts, and when any case shall be removed into a court of appellate jurisdiction by appeal from a county court, such appellate court shall thereupon be possessed of such cause, and shall proceed to hear and determine the same anew, and in the same manner late court, without regarding any error, defect as if such cause had originated in such appelor informality in the proceedings of the county court." It will be seen that section 3956 expressly allows appeals to the circuit court from "judgments and orders" of the county court "in all cases not expressly prohibited by law." And under section 4091, the circuit court is required, in all cases appealed from the county court, to hear and determine the cause de novo. It is to be conceded that no appeal will lie to the circuit court from orders of the county court of a purely administrative or ministerial character; that such orders are not within the contemplation of section 3956, supra. The order here sought to be appealed from, however, is, we think, clearly one in the nature of a judgment, in rendering which the county court acted in a judicial capacity. See State ex rel. v. Buerman, 186 Mo. App. 691, 172 S. W. 454; State ex rel. v. Wiethaupt, 150 Mo. App. 54, 129 S. W. 768; State on Inf. v. Colbert, 201 S. W. 52. It is therefore, we think, appealable under the provisions of section 3956, supra. However, in Hall v. De Armond, 46 Mo. App. 596, the Kansas City Court of Appeals reached a contrary conclusion, holding that an appeal will not lie from an order of a county court incorporating a town. port of that ruling the court cites Aldridge V. Spears, 101 Mo. 400, 14 S. W. 118, where it was held that no appeal may be had from an In sup order of a county court refusing to change a public road. The decision in the Aldridge Case was made necessary by the terms of the special statute (now section 10440, Rev. Stat. 1909) governing the right of appeal in public road cases. Though that section has been amended in the meantime, such amendment is not material. It allows an appeal from a judgment of a county court "assessing damages or for opening, changing, or vacating" public roads, but not from an order refusing to open, change, or vacate a public road. This special statute has no application where the order is one relating to a private road (see State ex rel. v. Wiet"The circuit courts * ** * haupt, 238 Mo. 155, 142 S. W. 323; State ex shall have power and jurisdiction as follows: * * * Fourth rel. v. McElhinney, 246 Mo. 44, 151 S. W. -Appellate jurisdiction from the judgments and 457); and in the cases last cited the Suorders of county courts, probate courts and preme Court has distinctly held that an apjustices of the peace, in all cases not expressly prohibited by law, and shall possess a superin- peal will lie to the circuit court from an ortending control over them, and a general control der of the county court denying a petition for the establishment of a private road; | has no power to act on a trial de novo," citthe right of appeal in such cases being given ing Scott County v. Leftwich, 145 Mo. 26, 33, by the general provisions of section 3956, 46 S. W. 963. The last-mentioned case was supra. We regard it as clear that the deci- a mandamus proceeding in which, in dission in Aldridge v. Spears, supra, is not au- cussing relator's right to the writ, it was said thority for the ruling in Hall v. De Armond, that "he could not have appealed from the supra. And we are of the opinion that an order of the county court refusing to levy a appeal will lie from the county court to the tax, because no appeal is provided in such circuit court in the case before us. See State cases." We think it clear that the act of the ex rel. v. Wiethaupt, supra, 238 Mo. 155, 142 county court in refusing to levy a tax was S. W. 323; State ex rel. v. McElhinney, su- not judicial in its nature and not within the pra. contemplation of section 3956, supra. And to say that the test is whether the circuit court has power to act on a trial de novo does not appear to clarify the matter. What proceedings originating in the county court are triable de novo in the circuit court? The answer must be, "Those wherein an appeal is allowed to it by the statute;" for such is the provision of section 4091, supra. It is argued for respondents that the cir cuit court is vested with no jurisdiction to enter a decree incorporating a city, and that this is what it must be permitted to do if an appeal lies in this case, since the cause must be tried de novo. It is quite true that the circuit court had no original jurisdiction to incorporate a city; such proceedings can only be instituted in the county court. But it does not follow that the circuit court may not acquire jurisdiction upon appeal to try the cause anew and render judgment therein. This is precisely the situation with respect to private road cases, supra. The circuit court has no original jurisdiction to entertain a petition for the laying out, changing, etc., of a private roadway; but on appeal from the county court the circuit court has full jurisdiction to try the cause de novo and render judgment therein. State ex rel. v. Wiethaupt and State ex rel. v. McElhin ney, supra. [2] The right of appeal is purely statutory, and touching the matter in hand the language of section 3956, supra, is extremely broad and comprehensive. By its terms the circuit court is vested with "appellate jurisdiction from the judgments and orders of county courts-in all cases not expressly prohibited by law." While there are necessarily some limitations upon the right, since the county court in its ministerial or administrative capacity is vested with authority to make "orders" which from their nature do not come within the contemplation of the statute, we apprehend that the courts may The foregoing has been heretofore filed as not deny or curtail the right of appeal thus the opinion herein, together with an order granted except where it is entirely clear that reversing and remanding. But as the de- the proceeding is not one within the purview cision was in conflict with that of the Kan- of the statute, or where the right is attemptsas City Court of Appeals in Hall v. De Ar-ed to be invoked by one who has not such inmond, supra, we ordered the cause certified terest in the matter as to entitle him to comto the Supreme Court. Shortly thereafter plain. the decision of the Springfield Court of Appeals in the cause entitled In re Town of Arcadia, 201 S. W. 359, came to our attention. We thereupon withdrew the opinion and orders, set aside the submission of the cause, and placed it upon our docket for a rehearing. It has now been reargued and resubmitted. Assuming that the party invoking the right has such an interest in the matter as to entitle him to complain of the action of the county court, it appears to us that the question is well disposed of in the language of Gantt, P. J., in Scott County v. Leftwich, supra, where it is said: 3956, supra) is exceedingly broad and compre- In the last-mentioned case the Springfield Court of Appeals held that no appeal would lie to the circuit court from an order of a county court disincorporating a town, following the ruling of the Kansas City Court of Appeals in Hall v. De Armond, supra. The opinion proceeds in part upon the theory that though an order such as that here involved is judicial in its nature, and not ministerial or legislative, "it is not judicial in the sense used in determining the right of appeal." Why the proceeding should be termed judicial in one sense and not in another is not made clear. In the course of the opinion it is said that "the better test of whether an appeal will lie is whether the proceeding is one which the law vests in the county court It is true that in the Scott County Case, 145 Mo. loc. cit. 33, 46 S. W. 965, the court further said: "This court has held also that appeals from the county to the circuit court are only allowed where, in the nature of the case, the circuit court can try the matter anew, and give such judgment as the county court should have given. Sheridan v. Fleming, 93 Mo. 321 [5 S. W. But as pointed out above this was said in a mandamus proceeding against the judges of a county court to compel the levy of a tax. And in St. L., I. M. & S. Ry. Co. v. City of St. Louis, 92 Mo. loc. cit. 165, 4 S. W. 664, while it is said that the two sections of the statute, supra, when taken together, "apply to such judgments and orders only as are in their nature susceptible of a trial anew inter. the circuit court-to cases in which the circuit court may enter up a judgment of its own," the court adds: "In other words the appeal can only be taken when the judgment or order appealed from is judicial." (Italics ours.) tend, that such is the effect of the cases in- It appears to us that where the county court enters a "judgment" or an "order" of a judicial nature and tantamount in its effect to a judgment, an appeal will lie in behalf of any party having an interest entitling him to complain of the action of the county court. If the act of the county court complained of is indeed judicial in its nature, having the effect of a judgment, then it would seem that the circuit court has ample power and authority to try the proceeding de novo and enter such judgment as the county court should have entered. And, as said, it has been authoritatively determined in this state that an order incorporating a municipality is judicial in its nature, in effect a judgment. And there appears to be no reason why the circuit court, if vested with jurisdiction on appeal, may not enter a judg-ceeding, and had no right to make themselves ment incorporating a municipality. Respondents' learned counsel says that the decision of the Supreme Court in State ex rel. v. Wiethaupt, 238 Mo. 155, 142 S. W. rel. v. Wiethaupt, 238 Mo. 155, 142 S. W. 323, to which we have referred supra, is out of line with certain decisions of that court subsequent to Colville v. Judy, 73 Mo. 651, cited in the opinion therein. We do not agree that counsel is correct in this, but in any event it is a matter with which we cannot reckon, since the last ruling of the Supreme Court, so far as applicable to the matter under consideration, is controlling upon us. Indeed, we think that the ruling in the Wiethaupt Case last cited is entirely sound, and that it furnished authority for the view which we are constrained to take of the matter before us. The usual method of testing the validity of municipal corporations is, of course, by quo warranto, and our reports abound with cases of that character. After it has become a finality, the order or judgment of incorporation is immune from collateral attack, and can be assailed only in a direct proceeding as by quo warranto. Such is the tenor of many of the decisions of our Supreme Court. But questions arise in such proceedings which cannot be reached by quo warranto. And the Supreme Court, so far as we are advised, has never determined that an appeal, timely taken, will not lie in such cases, unless it be, as respondents con remon Harris v. Millege et al., 151 Ind. 70, 51 N. E. 102. The opinion in the Arcadia Case, supra, concludes as follows: "These objectors were not parties to the pro such merely because they were citizens and taxpayers. Their interests are merely in common with those of other citizens and taxpayers, and they have no such special interest involved as will give them a right of appeal. Haynes v. Cass County, 135 Mo. App. 108, 114, 115 S. W. 1084." The case there cited was one involving the right of appeal from an order of a county court submitting a local option election-a matter concerning the public welfare and in which no citizen may be said to have any special or peculiar interest. [3] It may be that the right of appeal may properly be denied on the ground that these objectors-here 53 in number-have no such private interests affected as to entitle them to intervene and to prosecute an appeal. We are not persuaded, however, that this view should prevail. We are constrained to look upon the proceeding as one which may properly be said to affect the private rights of objecting property owners within the district sought to be included within the municipality, since if successful it results in constituting such persons members of a "body politic and incorporate," causing, inter alia, their property to at once become subject to the burdens of municipal taxation. And while the statute does not expressly provide that parties to be affected may appear and oppose the incorporation, it does provide that the county court shall be "satisfied" that a majority of the taxable inhabitants have the intervention of city employ its entire poThe Legislature could directly and without lice force or its entire fire department at such salaries as it deems wise. signed the petition. The duty to be satis- | 8. MUNICIPAL CORPORATIONS 67(1)—Powfied as to the sufficiency of the petition may ERS OF LEGISLATURE. be said to imply the duty to hear objections to its sufficiency, carrying with it the right of timely intervention on the part of dissenting taxable inhabitants. See Harris et al. v. Millege et al., supra, 151 Ind. loc. cit. 72, 51 N. E. 102. In spite of the opposing views taken by the other Courts of Appeal, for which we have much respect, we have concluded to abide by our former ruling. Our order will therefore be that the judgment be reversed and the cause remanded; but since the decision is contrary to the decision of the Kansas City Court of Appeals in Hall v. De Armond, 46 Mo. App. 596, and to that of the Springfield Court of Appeals in the cause entitled In re Town of Arcadia, 201 S. W. 359, the cause should be certified to the Supreme Court, which is accordingly done. 67(5) 9. MUNICIPAL CORPORATIONS Priv. Acts 1917, c. 488, amending charter of Memphis by increasing salaries of employés of fire department, except the chief, 12 per cent. is not unconstitutional. 10. CONSTITUTIONAL LAW 50 - POWER OF LEGISLATURE. State Legislature has the power to do all acts not forbidden by state or federal Constitution, expressly or by necessary implication. 11. MUNICIPAL CORPORATIONS 199- Ac. CEPTANCE OF SALARY RECOVERY OF BAL ANCE. Plaintiff, fireman of city of Memphis, who appeared before city council and sought to have increase in salary provided by Priv. Acts 1917, c. 488, put into effect by proper action, would not, by accepting salary at the old rate between such date and date when increase was REYNOLDS, P. J., and BECKER, J., con- put in force, waive his right to collect increase, A municipal corporation has the rights of an individual, and as such, in the exercise of these rights, may enjoy the privileges and immunities guaranteed to individuals by Const. art. 11, § 8. 2. MUNICIPAL CORPORATIONS 64-GOVERNMENTAL FUNCTIONS-CONTROLLED BY LEGIS LATURE. A municipal corporation, in the exercise of its governmental functions, is to be treated as a political subdivision of the state, and its governing or political rights regulated by those provisions of the Constitution referring to it in its capacity as a branch of the state. 3. MUNICIPAL CORPORATIONS 44-AMENDMENT OF CHARTER-POWER OF LEGISLATURE. The power to abolish a municipal charter includes the power to amend it, if the amend ment is otherwise valid. 4. MUNICIPAL CORPORATIONS ERNMENTAL FUNCTION." 724-"Gov The act of adopting, installing, equipping, and operating a fire department is a "governmental function" and not a municipal one. [Ed. Note. For other definitions, see Words and Phrases, Second Series, Governmental Function.] 5. MUNICIPAL CORPORATIONS ERNMENTAL FUNCTION." he not having agreed to postponement of action by council. Appeal from Chancery Court, Shelby County; F. H. Heiskell, Chancellor. Suit by John T. Smiddy against the City of Memphis and others. Decree for plaintiff, and defendants appeal. Affirmed. H. J. Livingston, of Memphis, for appellants. I. H. Peres and R. E. King, both of Memphis; for appellee. LANSDEN, J. This suit was brought by complainant to recover from the city of Memphis a balance alleged to be due as salary as a member of the fire department. The suit is intended as a test case; and, while the amount claimed by complainant is small, the total amount due, or alleged to be due, those within complainant's class is $7,500. Prior to the passage of the act hereafter mentioned, complainant was receiving a salary of $100 per month as a member of the fire department of the city of Memphis. By an act of the Legislature passed April 3 and approved April 6, 1917, the city of Memphis was mandatorially directed to pay complainant an increase of salary of 12 per cent. from and after the passage of the act. Complainant and others appeared before the city council, and sought to have the increase put into 205-"Gov-effect by a proper action upon the part of the government, which up to that time had failed and refused to do so. The city government and refused to do so. did not agree to put the increase in force, but did agree to take the matter under consideration. Complainant did not agree to any postponement of action upon the part of the city, but nothing more was done about the matter at the time. The complainant continued to receive his salary at the rate of $100 monthly until the city placed the increase into effect, September 1, 1917. This suit is brought to recover from the city the amount alleged The operation of a water plant being a governmental function, a decision to employ persons to operate it as well as the fixing of their salaries is also a governmental duty. 6. CONSTITUTIONAL LAW 102(1) - VESTED RIGHTS. A city has no vested rights to fix the rate of pay which the employés of its fire depart ment must receive. 7. MUNICIPAL CORPORATIONS IN GENERAL. 64-POWERS A city has no governing power separate from the power which the Constitution has given to the Legislature. to be due from the date of the passage of the [ing District, 2 Lea, 425. The power to abolact until September 1st. The defenses are: (1) That the act referred to is unconstitutional and void; and (2) that complainant has waived his right to receive the increased pay from April 6th to September 1st, because he accepted pay at the old rate without protest. It is said for the city that chapter 488 of the Private Acts of 1917, in so far as it undertakes to command an increase in the rate of pay which complainant should receive, is unconstitutional and void because it undertakes to grant to certain individuals rights, privileges, and immunities not granted or extended to others, and also undertakes unlawfully to diminish the powers of the city of Memphis, and to interfere with its vested rights, and is illegal class legislation in conflict with section 8 of article 11 of the state Constitution; also that the act undertakes to deprive the city of its property arbitrarily and capriciously without due process of law, and is contrary to, and in conflict with, section 8 of article 1 of the Constitution; and that the act in so far as it purports to be mandatory undertakes to deprive the city of its property, and arbitrarily to dispose of its property and funds, and to arbitrarily make contracts for the city resulting in confiscation of its property, and undertakes to interfere with the city's private and local affairs, the conduct of which properly belongs to the governing authorities of the municipality under the implied provisions of the state Constitution. [1] It may be conceded at the outset that a municipality, in so far as its rights are controlled by the Constitution of this state, has a dual existence. It has the rights of an individual, and as such, in the exercise of those rights, may enjoy the privileges and immunities, and must bear equal burdens with other citizens of the state. In such capacity it is under the protection of article 11, § 8, of the state Constitution. Fleming V. Memphis, 126 Tenn. 331, 148 S. W. 1057, 42 L. R. A. (N. S.) 493, Ann. Cas. 1913D, 1306; Stratton v. Morris, 89 Tenn. 522, 15 S. W. 87, 12 L. R. A. 70; Malone v. Williams, 118 Tenn. 425, 103 S. W. 798, 121 Am. St. Rep. 1002; State v. Railroad, 124 Tenn. 1, 135 S. W. 773, Ann. Cas. 1912D, 805. [2, 3] However, in its capacity as an arm or branch of the state government, and in the exercise of its governmental functions, it is to be treated as a political subdivision of the state, and its governing, or political rights, are all to be regulated by those provisions of the Constitution which refer to it in that capacity, and by the Legislature in its unrestricted sovereign capacity. Redistricting Cases, 111 Tenn. 234, 80 S. W. 750. In In this view it was held at an early day that the Legislature had complete control of municipal corporations, and may abolish them at any time in its discretion. Luehrman v. Tax203 S.W.-33 ish a municipal charter necessarily includes the power to amend it if the amendment is otherwise valid. In Luehrman v. Taxing District, supra, there is to be found a wide discussion of the relationship which municipalities bear to the state government. It is shown in that case that political power conferred by the Legislature upon a municipality cannot become a vested right as against its creator, and that municipal grants of franchise are always subject to the control of the legislative power for the purposes of amendment, modification, or entire revocation. City of Memphis v. Memphis Waterworks, 5 Heisk. 495; Governor v. McEwen, 5 Humph. 241; McCallie v. Mayor, etc., 3 Head, 317; Lynch v. Lafland, 4 Cold. 96. Judge Cooper says in that case: "There cannot be a doubt, therefore, that Act 1879, c. 10, to repeal the charters of certain municipal corporations is constitutional." This case is a fair illustration of the dual nature of municipal corporations. State v. Wilson, 12 Lea, 246. [4-8] The act of adopting, installing, equipping, and operating a fire department is a governmental function, and not a municipal one. Foster v. Water Co., 3 Lea, 42; Irvine V. Chattanooga, 101 Tenn. 291, 47 S. W. 419; Chattanooga v. Reid, 103 Tenn. 616, 53 S. W. 937; Nashville v. Mason, 137 Tenn. 170, 192 S. W. 915. The operation of a water plant being a governmental function upon all of the authorities, we think it equally clear that the decision to employ persons to operate it, as well as the fixing of their salaries, is also a governmental duty. It may be true that the city's liability for wages to the employés of such a department is munic ipal, and the act of selecting the proper employés and fixing their compensation is the act of an individual, but there is no vested right in the city to fix the rate of pay which the employés of the fire department must Legislature and assume that it has acquired receive. It cannot ignore the mandate of the Legislature and assume that it has acquired a vested right in the power of government. It has no governing power separate and apart from the power which the Constitution has given to the Legislature. As shown in Luehrman v. Taxing District, supra, both upon principle and upon authority, the Legislature can abolish the municipality altogether, and, except where it has a vested right so as to secure the benefits of the Constitution, it is at the mercy of the Legislature. The Legislature could employ its entire police force or its entire fire department at such salaries as it should deem wise, directly and without the intervention of the municipality. We say this upon the authority of the Luehrman Case and the following authorities: lowing authorities: Demoville v. Davidson Co., 87 Tenn. 214, 10 S. W. 353; State ex rel. v. Cummings, 130 Tenn. 566, 172 S. W. 290, L. R. A. 1915D, 274. [9, 10] The learned city attorney treats the |