Barret v. City of Mobile Gould, Pl. 57; 9 Bac. Abr. 672; Young v. Cooper, 6 Exch. 259; Kline v. Husted, 3 Caines, 275; Pemberton v. Smith, 3 Head, 18; Miller v. Knapp (Pa. Sup.) 199 Atl. 555. In Gould, Pl., supra, it is laid down that "as the conversion, which is the gist of the action in trover, is ex vi termini a tortious act, which cannot in law be justified or excused, it is manifest that any plea alleging matter of justification or excuse (as a license from the plaintiff, an authority derived from the law, etc.) is equivalent to the plea of not guilty, since it must involve a denial of the conversion. There are decisions opposed to the admission of such a defense without a special plea, and the question seems not to have been expressly decided by this court, though, as favoring the rule we announce, there is an intimation in Hopkinson v. Shelton, 37 Ala. 306, where, in passing on a plea setting up that the property alleged to have been converted was taken under execution, the court said that, in view of our statute allowing a plurality of pleas, "it was no objection to the second plea that it amounted to the general issue. A conversion is necessarily wrongful, and cannot be justified. Where the appropriation is rightful, there is no conversion. Therefore a plea showing that fact directly contravenes the complaint, and is not in confession and avoidance, or in justification. Under the pleading in the present case, it was competent, under the count in trover and in bar of it, to show by proof, if it existed, that the animal was killed in pursuance of a reasonable police regulation, in promotion of the public health. Tied. Cont. Pers. & Prop. 828. The evidence actually introduced tending to show the defendant's official character, the information on which, and the circumstances under which, he acted in ordering the animal to be killed were admissible, under the count in trespass, as tending to show he acted in good faith, and as bearing on the question of exemplary damages. But the evidence did not tend to show an absolute defense to either count. In a general way, the duties and authority of county health officers are prescribed by chapter 58 of the Code. The powers given them as executive officers in respect of the destruction of property to prevent the spread of infectious diseases are required to be exercised "under the direction and control of the county board of health and in accordance with the health laws of the state. Section 2436. The county board of health may investigate "cases of malignant, pestilential, infectious, epidemic and endemic diseases occurring in the county, and the causes thereof, and take such steps as may be necessary for their abatement or prevention." Section 2429. "The court of county commissioners, or the proper corporate authorities of any city or town, may, jointly or separately, invest the county board of health with such executive powers and duties as may be deemed necessary for the preservation and promotion of the public health, and for the prevention of the introduction or spread of contagious or infectious diseases; 6 M C Cas-42 Lebanon Light & Mag. Water Co. v. City of Lebanon such powers to be exercised, and such duties to be performed, under such rules and regulations as may be determined upon between such board and such court, or corporate authorities." Section 2431. And the charter of Mobile (section 21) provides that the general council "may make, ordain and declare such by-laws and ordinances for and concerning the removal of nuisances and the prevention and extinction of contagious or infectious diseases, and in giving effect to these powers may act in co-operation with the board of health." In the absence of some regulation made or special authority conferred by the board of health, the court, or the corporate authorities, the health officer of Mobile, as such, has no authority to destroy property, whether infected or not, except when acting under a warrant from a justice or mayor, as provided by section 2393. Here there was nothing to show that the defendant was authorized in either of the modes indicated, or in any legal mode, to order the destruction of the animal; consequently there was nothing to justify that action, or to devest it of a tortious aspect, and the plaintiff's right to recover was made out. Therefore the refusal to instruct the jury affirmatively in her favor was error, for which the judgment must be reversed. It is unnecessary to specifically pass on the other charges. Let the judgment be reversed, and the cause remanded. LEBANON LIGHT AND MAGNETIC WATER Co. v. CITY OF LEBANON. (Supreme Court of Missouri, Division No. 2, June 11, 1901.) [63 S. W. Rep. 809.] Ordinance Authorizing Contract for Electric Light-Irregularity in Election Adopting Such Ordinance. Where there was no fraud, the holding in one ward, instead of in all the wards, of a city, of an election for the adoption of an ordinance authorizing a contract for electric lighting of a city, was an irregularity, and did not invalidate the elec tion. Same Same.-Where, in the election for the adoption of an ordinance authorizing a contract for electric lights, the fact that many of the ballots voted did not contain the words "tax levy," while they were counted for electric light contract and tax levy, was a mere irregularity, which did not invalidate the election, there being no fraud. Action Ex Contractu against City-Pleading Question RaisedObjections. Where, in an action on a contract with a city, the pleadings did not raise the question that no notice was given that an election for the adoption of an ordinance authorizing the contract would be held, defendant cannot object that there was no evidence of such notice. Claims against City-Where Statute Prefers Certain Claims None Others Can Be Preferred over Judgment Claims.-Under Rev. St. 1889, § 4977, providing that the necessary expenses for maintaining a city government which have a preference over contract obligations are the reasonable salary allowed by law to the mayor, council, assignor, marshal, constable, attorney, and a reasonable police force of the city, it was error, in an action on a contract, to allow other items of expense, whereby the city funds applicable to the contract, and for which plain Lebanon Light & Mag. Water Co. v. City of Lebanon tiff obtained judgment, were reduced below the amount due on such contract. Defendant Cannot Complain of Error in His Favor.--The error of the court being in favor of defendant, it cannot complain thereof. Appeal from circuit court, Laclede county; L. B. Woodside, Judge. Action by the Lebanon Light & Magnetic Water Company against the city of Lebanon. From a judgment in favor of plaintiff for less than the amount demanded, both parties appeal. Reversed on plaintiff's appeal. This is an action by plaintiff, as assignee of the Lebanon Light & Water Company, against the city of Lebanon, for the rental of 23 arc lights, of 2,000 candle power each, furnished said city during the year 1897. On January 5, 1891, said city, by Ordinance No. 90, granted the Lebanon Light & Water Company the right, for a period of 20 years, to operate a plant for making and furnishing the city of Lebanon with electric light, and which also provided that said company and its assigns should during this period supply the citizens of Lebanon with electric light; and said city expressly agreed by said ordinance to pay said company and its assigns $3,0co per annum for 23 arc lights, of 2,000 candle power each; and the same to be payable quarterly, and, if not paid when due, to bear 8 per cent. from the time payments become due until paid. This ordinance was duly submitted to a vote at an election called for that purpose, and the trial court found that at said election said franchise was duly adopted, and became a binding contract on the city. The trial court decided that the plaintiff, out of the revenues and income provided by the defendant city for the year 1897, was only entitled to the sum of $2,214.40, and not the full amount contracted for, and that the balance of said revenues provided for said year was properly appropriated to the payment of the expenses of the city government for that year. The correctness of this ruling is the only question challenged by the plaintiff's appeal. The trial court, by declarations of law, found that the "actual income of the city of Lebanon for the year 1897 was $4, 197.27. Plaintiff asked the following declarations of law: "The court finds and declares the law in this case: That the contract entered into between the city of Lebanon and the Lebanon Light & Water Company is a binding contract on the said city, and, further, that the plaintiff should have judgment for three thousand dollars, and eight per cent. on deferred payments, for the 23 arc lights furnished defendant during the year 1897: provided, that the same could be paid out of the income and revenue provided by said city for the year 1897, after deducting therefrom the amount that might be necessary to pay the reasonable salary allowed by law and the ordinances of said city, if any, to the mayor, council, assessor, marshal, attorney, and a reasonable police force for the defendant city; and if the court shall find that the income Lebanon Light & Mag. Water Co. v. City of Lebanon provided by the said city of Lebanon for the year 1897, after deducting the said expenses of the city government, leaves any sum whatever, the plaintiff is entitled to a judgment to an amount equal to such remainder. That, in estimating the necessary expenses to run the city government of Lebanon for the year 1897, only the following items will be considered and allowed, that is to say, the salary allowed by ordinance of the city of Lebanon to its marshal, assessor, and for a reasonable amount to sustain a reasonable police force, which amount will be the sum actually expended in that year for the police force; and it appearing by the evidence in this case that the charge and payment of the other city officers were in fees, and that they received no salary for their services, the sums received by them as fees should be excluded from such estimate. The court declares that the rule, as applied to this case, for estimating the necessary expenses for the city of Lebanon for the year commencing on January 1, 1897, and ending on January 1, 1898, is laid down in section 4977 of chapter 63 of the Revised Statutes of Missouri for 1889, and is the reasonable salary allowed by law and ordinance of the city of Lebanon, if any, to the mayor, council, marshal, constable, attorney, and a reasonable police force for said city; and in this case, it appearing from the evidence that during the said year 1897 there was no salary allowed by law to the mayor, constable, and attorney of the city of Lebanon, and that they received no salary, the only necessary expenses for the year 1897 that should be allowed in this case are the amounts of salary allowed and received by the city assessor, marshal, and a reasonable police force, not to exceed the amounts actually received." The court refused to give these declarations of law, and the plaintiff duly excepted. The court then, of its own motion, gave the following declarations: "The necessary current expenses of said city, within the meaning of the foregoing instruction, are the reasonable amounts that said city would be required by law to pay under all laws and ordinances existing at the time of making such contract. Any person or corporation contracting with any such city for the purpose of furnishing electric lights will be deemed to have made said contract with the knowledge of the provisions of section II, art. 10, of the constitution of the state of Missouri, and also with the knowledge of all laws and ordinances in force at the time of making such contract; and all reasonable sums that may be required to be paid by said city under the laws and ordinances that are in force at the time of making such contract will take precedence over such contract, and be a prior claim upon the revenues of said city for any year. The court further finds that the sums testified to by the witness Stebbins, of $1,982.87, paid, for current expenses of said city for the year 1897, were all reasonable amounts, and were paid under and by provisions of laws and ordinances that were in force at the time of making, the con Lebanon Light & Mag. Water Co. v. City of Lebanon tract sued on, and the authorities of said city were justified in making such payments in advance of the claim of the plaintiff herein. The court further finds that there is the sum of $2,214.44 of the revenues and income of said town in excess of the current expenses of said town as above set forth, and that, under the evidence in this case, the plaintiff is entitled to recover said sum upon the contract sued on. To the giving of these declarations of law the plaintiff duly excepted. The only evidence in this case concerning the expenses of the city government for 1897 was the testimony of Clerk Stebbins. He testified that the amount, under the laws and ordinances of said city, allowed as salary to mayor, council, assessor, marshal, attorney, and a reasonable police force was the sum of $441, and that, after deducting that amount from the total revenues of the year 1897, there would remain the sum of $3,702.27. After unsuccessful motion for new trial, plaintiff appeals. Defendant appeals from the judgment of the court upon the ground that the election held for the adoption of said Ordinance No. 90 was null and void, as well, also, as the tax levied and collected in pursuance thereof, and that the judgment should have been for defendant. Wallace & Nixon, for plaintiff. BURGESS, J. (after stating the facts). It is claimed by defendant that, as it is a city of the fourth class, it is divided. into three wards, and, as the election was held in only one ward, it was in violation of the statute, and that as many of the ballots voted were not in accordance, in that they did not contain the words "and tax levy," while they were counted "for electric light contract and tax levy," the election was void, and the contract without authority. But these were, at most, but irregularities, and, in the absence of fraud, did not vitiate the election. State v. Town of Westport, 116 Mo. 582, 22 S. W. 888. Defendant also asserts that there was no evidence adduced at the trial that notice of said election would be held was given by the mayor, but no such question was raised by the pleadings. All of the defenses were special defenses, and it is not alleged in any of them that such notice was not given, and the point cannot be raised outside of the record. It is further insisted by defendant that the contract to pay $3,000 per annum was clearly a contract in excess of the annual income and revenue for any such year, and was not authorized by the voters in the manner required by law, and was in conflict with the constitution and statutes of this state. The total income and revenue of the city for the year 1897 was $4, 197.27, which sum, less the necessary expenses to run the city government for that year, and any amount not in excess of the amount of plaintiff's claim, if any, plaintiff was entitled to judgment. What were necessary expenses of maintaining the city government, specified in section 4977, Rev. St. 1889, as those which |