author: LAMM, J.

text:
    GEORGE C. ORCHARD, Appellant, v. GLOBE PRINTING COMPANY.
    Division One,
    February 29, 1912.
    1. PLEADING: Cause of Action: Demurrer: Admission. A demurrer to the petition does not concede the truth of mere illustrations, conclusions, comments or argumentative allegations made in the petition; hut it does admit the truth of all facts, not absurd or impossible, well pleaded. Where the petition in a libel suit sets out a circular containing certain defamatory facts concerning plaintiff and charges they were false, a demurrer thereto admits those statements of facts were false. So also does the demurrer admit the truth of the allegations of the petition that the plaintiff had demeaned himself as an honest man and good citizen, was a person of good name and fame, and that his neighbors so esteemed him until the circular was published.
    2. -: -: Libel. The petition charged that defendant had published in its newspaper a circular in which it was stated that plaintiff, with other named “self-constituted leaders’' of the Democratic party, had entered “into a contract” with “low” negroes of the town to get, or at least try to get, a pardon for a self-confessed negro thief then in the penitentiary, and in return the negroes were to give their votes and influence to the Democratic nominee for the Legislature at the approaching election; that a petition for the pardon of the thief had already been signed, and presented to the Governor, and he would act upon it immediately after the election; that when the writers “got word of this basest of criminal boodleism” they set out to ascertain the real facts of the case “and upon the closest investigation were horrified to find the facts bear out the report as to the agreement and the persons implicated in it;” and the circular denounced the affair as a “corrupt agreement,” an “unlawful and unwholly agreement,” a “corrupt alliance,” and says it comes from men having “convictions of fight and wrong” and is addressed to men of “the same convictions.” Held, that the petition states a cause of action, though the main object was to defeat the Democratic nominee for the Legislature, and that nominee was not the plaintiff.
    3. -: -; -: Reputation. A man’s good reputation is as much within the protection of the law as is his property; and a petition which charges the publication of a circular which contains charges of a “corrupt agreement” showing, if true, that plaintiff had been guilty of moral turpitude and of conduct forfeiting his right to a reputation as a good citizen and a good man in matters of lively concern to the public, which charges the petition alleges are false and which are, by a demurrer, admitted to be false, states a cause of action.
    4. -: -: -: Pardon of Thief for Votes. To dangle a pardon for a thief before the eyes of his low comr panions as an inducement for their votes at a public election, or to take part directly or indirectly in such disreputable scheme, debauches public morals, hamstrings civic virtue, and is a palpably dishonorable breach of good citizenship; and to be falsely charged with doing that, is libelous; and a petition alleging that defendant published such charges concerning plaintiffs and that they were false, calls on the publisher to either justify, palliate, mitigate or bring itself within some phase of the doctrine of privilege, or, failing to do either, to make reparation.
    5. LIBEL; Definition. Each case of libel should stand on its own facts, since the language used is rarely the same, and libel is as difficult of definition as fraud or negligence. But the statutory definition is good enough for usual purposes. . (Sec. 4818, R. S. 1909).

      U. -: -: Necessary Elements: Malicious Defamation, etc. The published writing must contain “malicious defamation,” that is, the injury of another’s reputation by a slanderous communication, detraction, calumny or aspersion; and the idea of- falsity must be included, for the truth is a defense, and, besides, the idea of falsity is shadowed forth in the words “malicious defamation;” but malice does not necessarily mean express malice (malice personal to the individual), though express malice may be shown to enhance punitive damages, but malice as defined in the law. And the writing must be of a character to provoke the other to wrath, or to expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse.
    7. -: -: Charging Crime. There can be a libel without a crime charged in the libelous writing. If the petition, liberally construed, charges a libel in a broad sense under the statutory definition, it states a cause of action, though it also attempts to charge a crime.
    8. -: -: -: Seif-Curing: No Crime in Strict Legal Sense. - And where the petition charges a libel in a broad sense under the statutory definition, it cannot be held that the published writing was self-curative and carried the antidote along with the poison self-evidently, in that it charges no crime in a strict legal sense. Even if it do not charge a crime as a crime by the use of the words “boodleism” and “bribery,” yet if its sting is not coiled up in the use of those words, but lies in the whole article, which, if untrue, contains the elements of statutory libel, it is libelous.
    9. -: Slander. Libel and slander cannot be put upon the same foot. Many things are libelous per se when put in writing and published that are not slanderous per se.

    Appeal from Butler Circuit Court. — Hon. J. C. Sheppard, Judge.
    Reversed and remanded.

      Reed, Yates, Mastin é Harvey and Orchard <& Cunningham for appellant. ' ■
    (1) It is not necessary tliat language should charge a crime in order that it should he libelous. Any language calculated to bring about the conditions denounced by our statutory definition of libel is libelous per se. Press v. ’Whitely, 50 Mo. 440; Ferguson v. Publishing Co., 72 Mo. App. 465. In which latter case the succinct language of Odgers on Libel and Slander is quoted: “Every libel is actionable per se.” All other cases supporting this doctrine are cited in the last named case, to which we add: McGinnis v. Knapp, 109 Mo. 149; Morse v. Times Republican, 124 la. 708; McDonald v. Press Co., 55 Fed. 264. (2) If the language is libelous no innuendoes are necessary. Farley v. Evening Chronicle, 113- Mo. App. 216. If it appears that the article sued on is libelous within the statutory definition, then the plaintiff had a cause of action, though it fell far short of charging a criminal act, and that part of the petition which charges that the language is 'susceptible of such an interpretation may be wholly rejected and verdict had upon the other theory of the case. Hudson v. Garner, 22 Mo. 423; Michael v. Matheis, 77 Mo. App. 556; Callahan v. Ingram, 122 Mo. 366; Julian v. Star Co., 209 Mo. 65'.

      Lon O. Hooker and LetvB. Thomason for respondent.
    (1) In an action for libel, the words alleged to be libelous are to be construed or interpreted in their plain and popular sense and as they are generally understood. Newell on S. & L. (2 Ed.), sec. 27, et seq.; Diener v. Publishing Co., 230 Mo. 627; Roberts v. Camden, 9 East Rep1. 93; Fallenstein v. Booth, 13 Mo. 306; Moore v. Bennett, 48 N. Y. 472. (2) The article complained of must be construed as a whole, since one part of the publication may explain another part, and since the intent and meaning must be gathered not alone from the words alleged to be libelous, but from the context, the maxim noscitur a sociis applies. Diener v. Publishing Co., 230' Mo. 625; Kilgour v. Evening Star,-96 Md. 27; McAllister v. Free Press, 76 Mich. 338.; Gaither v. Advertising Co., 102 Ala. 452. (3) In order to render words actionable on the ground that they impute criminality to the plaintiff, they must be such as charge him with an offense indictable or otherwise punishable, involving moral turpitude, or subject him to infamous punishment. Brooker v. Coffin, 5 Johns. (N. Y.) 188; Pollard v. Lyons, 91 U. S. 225; Newell on S. & L. (2 Ed.), sec. 10; Cooley on Torts (Ed. 1880), p. 195; Hollingsworth v. Shaw, 19 Oh. St. 430. (4) Although the article complained of may contain words that impute, or charge plaintiff with the commission of a crime, indictable or otherwise punishable involving moral turpitude, or subject him to infamous punishment, or may tend to provoke him to wrath, or expose him to public hatred, contempt or ridicule, or deprive him of the benefit of public confidence or social intercourse; yet if they are accompanied with other words explaining the imputed offense, showing that no crime was or is charged, and explaining the real character and meaning of the language used, so that when taken all together such language is not defamatory, thus sending the antidote along with the poison, said words are not libelous or actionable, and a person suing upon the same cannot recover. Hall v. Atkins, 59 Mo. 144; Trimble v. Foster, 87 Mo. 53; Israel v. Israel, 109 Mo. App. 376; Brown v. Myers, 40 Ohio St. 99; Hayes v. Ball, 72 N. Y. 418; Pawsett v. Clark, 48 Md. 494: Line v. Spies, 139 Mich. 484. (5) The article complained of does not charge plaintiff with any violation of Sec. 6038, R. S. 1909. State ex rel. v. Bland, 144 Mo. 534. (6) The office or purpose of the innuendo in an action for libel is simply to apply the words, it cannot be substituted for an averment. It is not the statement of a fact, but is an inference, being merely explanatory in its functions ; the explanation given must be a legitimate deduction from the facts stated, and not a forced, unreasonable construction, enlarging the meaning of the language to which it refers. Christal v. Craig, 80 Mo. 373; Diener v. Pubfishing Co., 230 Mo. 613; Boyce v. Aubuchon, 34 Mo App. 315; Howell v. Crawford, 107 Mo. 595; Bundy v. Hart, 46 Mo. 464; Cook v. Publishing Co., -Mo. --•. (7) The sufficiency of the pleadings are to be determined by the court, and a demurrer lies to a petition sounding in tort for libel as in any other case. Diener v. Publishing Co., 230 Mo. 620; Heller v. Publishing Co., 153 Mo. 205; Ukman v. Daily Record, 189 Mo. 378. (8) The petition nowhere charges by innuendo or otherwise that the article complained of is libelous because the publication of the same is calculated to provoke the plaintiff to wrath, and for that reason the petition cannot be defended against the demurrer for the reason that it is now claimed in appellant’s brief that it was calculated to provoke him to wrath. An article may be libelous if a reasonable construction of it can be said to provoke the person of whom it is published to wrath. But a publication may so provoke one person and not another, and unless it would so provoke the plaintiff, and is so alleged, the article cannot be said to he libelous, as to him, for simply that reason.
   LAMM, J.

Libel in the Butler Circuit Court. Suit brought November 3, 1906. Plaintiff was cast on demurrer to his petition in 1908. The alleged libel lies in a circular, an appeal to their fellow Democrats of Butler county by Henry and John Lacks, published by defendant November 8, 1904, and which publication, prefixed by certain head-notes and explanation, was followed by a reference to political conditions in that county — the whole, as set forth in the petition, read..ing:

CHARGE DEAL TO GET BLACK VOTE

SAM PHILLIPS ACCUSED.

H. and J. Lacks of Poplar Bluff Appeal to Democrats to Withdraw Support.

Special Dispatch to The Globe-Democrat.

Poplar Bluff, Mo., November 7.

A serious split in the Democratic ranks in Butler county occurred yesterday when the following circular was brought out, signed by Henry and John Lacks, two prominent Democrats with a large following, who are opposing Sam Phillips, the Democratic nominee for Representative from this district.

“Dear Friend: Knowing that you are and always have been a Democrat, with the convictions of right and wrong, and also knowing that you have known us as men of the same convictions, we address you as our personal friend as holding these same views, and also as a straight-forward [sic] Democrat. Our campaign this year has been fought in our State against boodle and boodleism, and we know that you want our county polities fought out on the same line. Now what we want to say to you is this:

“We want you to know that Ed. L. Abington, chairman of the Democratic county committee, and Geo. C. Orchard and others of the same class have gone into a contract, as admitted by them with the knowledge and consent and approval of Sam Phillips, Democratic candidate for Representative, with the lower element of the negroes of Popular Bluff, agreeing with the negroes that they (Abington, Orchard, Stanley, Phillips), will petition the Governor to pardon out of the penitentiary a negro convict who has, before two courts, pleaded that he was guilty of grand -larceny, and who is now serving a term for that crime. The promise was made by Orchard, Abington, Phillips and company to the negroes that Sam Phillips should, in return for this good work, get the negroes’ influence and votes in this election. We got word of this basest of criminal boodleism and set out to find the real facts in the ease, and upon the closest investigation we were horrified to find that the facts bear out the report as to the agreement-' and the persons implicated in it. We learned that the petition for the pardon had already been gotten up and signed and handed to the Governor, when he was here about a week or moré ago, and that the Governor now has the petition, and that he would, act upon it immediately after the election. When the leaders in this disreputable combine found that we had learned of their unlawful and unwholly [sic] agreement they sent word to Henry Lacks by Bert Stanley, saying that Orchard had done all this, and that he did it to get the Republican (black, we suppose) votes. We know that Orchard was implicated already, but we want you to know that there are others implicated as well as Orchard. When we. learned of this corrupt agreement we endeavored to see Sam Phillips and ascertain his connection therewith. He was then out of town, but on returning in tne evening and being told of the disclosure in a bunch of this combine, with some other good men, brazenly admitted that while he was not sure that he had signed the petition, he would do so if necessary, and that he would do all in his power to get the negro pardoned. We have these facts from several reliable sources, and know them to be true. The brother of the negro himself said he had such a promise.
“We sent a message to Prosecuting Attorney Price Stone of Jefferson City asking him to call on the Governor and telephone the names on the petition. This he could not do as he said the petition had not been filed and that the Governor had the same with him in St. Louis, so that we cannot advertise the petition at this time. Now we want to say to you as our friend and what we say is friendship for you as well, and as Democrats that we hope you will not tolerate and submit to this sort of boodleism in Butler county. This negro was a self-admitted criminal, and under the corrupt agreement made by the self-constituted leaders is being sent back to Butler county to prey on the law-abiding public in exchange for a few negro votes for Sam Phillips. Is this Democratic? We say, No. We say it is boodleism and nothing but boodleism. We want to say that we know of no other Democratic candidate that is implicated in this corrupt agreement. We believe there is no other. We are Democrats and are for all other Democratic nominees; but we cannot support Mr. Phillips on account of his part in this corrupt alliance with the low class of the negroes, and we ask you as our friend and as the friend to pure government and honest politics, ¡and as a true and tried Democrat, that you do all you can. as Democrat in the face of the facts to keep our party clear of corrupt officials.
“Yours very truly,
“(Signed) “Henry LAcks,
“John Lacks.”

This city is wrought up to fever heat and the outlook at the present time is for a decisive victory for the entire Republican ticket.

The substantive averments of the petition are that defendant publishes a paper called the St. Louis Globe-Democrat, of large circulation in Butler and surrounding counties, and in the State of Missouri, where plaintiff is well known, and throughout the United States; that plaintiff had always demeaned himself as an honest and faithful citizen of the State and of Butler county, and was reputed and esteemed among his neighbors and acquaintances a person of good name, fame and credit — further (quoting):

“And plaintiff alleges that defendant well knowing such fact and intending wickedly and maliciously to injure plaintiff in his good name, fame and credit, and to bring him into public hatred, scorn, ridicule, contempt, infamy and disgrace, and to deprive him of the benefits of public confidence, and to cause it to be believed by his neghbors and among good and worthy citizens of the State of Missouri, that plaintiff had been guilty of corrupt, dishonest and dishonorable and criminal conduct in and about the soliciting, procuring and obtaining votes for and upon behalf of one Sam Phillips, who was the regularly and 'lawfully nominated candidate for the office of Representative in the Lower House of the General Assembly of the State of Missouri, to be voted for as such at a regular and legal State and county election to be held in the county of Butler and State of Missouri on the 8th day of November, 1904, and in order to cause it to be believed by said hereinbefore mentioned persons that the plaintiff had been guilty of criminal conduct and practices, and of boodleism and bribery in order to induce qualified voters at such election to vote for said Sam Phillips as and for said office, and in order to cause it to be believed by said persons hereinbefore mentioned and-the public generally that the plaintiff had been guilty of a violation of the criminal practice act and laws of the State of Missouri then in force pertaining to elections, and had been guilty of the crime of bribery, by directly or indirectly giving, offering, promising to procure or endeavoring to procure a valuable consideration (and an award) [sic] to or for legally qualified voters at said election so to be held as aforesaid, in order to induce said voters to vote for the said Sam Phillips for said office of Representative or member of the General Assembly of the State of Missouri, and intending to vex, oppress, impoverish and wholly ruin the plaintiff, did, oh the 8th day of November, 1904, in the newspaper known as St. Louis Globe-Democrat, publish of and concerning the plaintiff a certain false, wicked, malicious, defamatory and libelous article, which said article was thereafter by the defendant wickedly published and circulated, to-wit: to the number of more than one hundred thousand copies throughout the county of Butler in said State and throughout the entire State of Missouri, and throughout the United States generally as follows, to-wit:” (Here follows the publication hereinbefore set forth).

The further allegations are that the statements made in the circular were well known by defendant to be absolutely false and untrue; that they were published with the malicious and express purpose of defaming and injuring plaintiff; that the Globe-Democrat is generally considered of great influence and power and is reasonably worth more than $1,000,000; and that by reason of the premises plaintiff has been brought into public hatred, scorn, ridicule, contempt, infamy and disgrace, has been deprived of public confidence, has suffered humiliation, pain and anguish of mind, and in his reputation — wherefore he has been damaged in the sum of $100,000 actual and $100,000 punitive damages.

(Nota bene: The words “and an award,” appearing in parenthesis, whatever they may mean, were inserted by leave of court by way of amendment, after demurrer filed.)

Eliminating expansive and argumentative matter from the demurrer, its gist is a general challenge' to the petition for that it does not state facts sufficient" to constitute a cause of action.

As said, the court sustained it, and plaintiff, refusing to plead over, stood on his petition, suffered judgment and comes up by appeal.

We are of opinion the demurrer was badly ruled. It is a trite doctrine that a demurrer concedes the truth of all facts, not absurd or impossible, well pleaded. It does not concede the truth of mere illustrations, conclusions, comments or argumentative allegations made by the pleader.

We must assume then, on demurrer, that the facts stated in Lacks ’ circular relating to Orchard are false, for plaintiff makes that averment in his petition. What are those facts as given tang and flavor by the descriptive epithets used by the writers of the circular? Briefly that Orchard with other named “self-constituted leaders” of the Democratic party, went “into a contract” with “low” negroes of Poplar Bluff to get, or at least try to get, by way of petition, a pardon for a self-confessed negro thief then in the penitentiary. In return for that “good work” the agreement ran that said negroes were to vote and give their influence to the Democratic nominee for the Legislature at the election shortly approaching. The circular, in effect, goes on to charge that such contract was entered into with and “promise” made to the negroes, and that a petition for a pardon had actually been signed and sent to the Governor. In other words, the agreement had been performed on the part of Orchard' et al., whereby the thing had reached a stage where there was nothing left but for the Governor to act upon the petition which he would do after the election, and for the negroes to perform on their part. The circular says the agreement was made with the approval of the Democratic candidate- for the Legislature, who, when charged with consenting thereto, had admitted in a “bunch of the combine” that he would do all in Ms power to get the negro pardoned. It is instructive to further notice the language used, to-wit, the circular denounced the affair “as the basest of criminal boodleism,” a “corrupt ageement,” an “unlawful and unwholly agreement,” a “corrupt alliance.” In short it is, of set purpose, censorious of Orchard in a high degree. Witness, its denunciatory language. For example: The circular comes from men who describe themselves as having “convictions of right and wrong” and is addressed to men of “the same convictions.” That is, ostensibly, it is written by good citizens to good citizens against bad citizens. It says the campaign of 1904 in Missouri is against “hoodie and boodleism,” that the “closest investigation” “horrified” the writers because the facts ascertained thereby show the agreement was made. The words, “basest,” “criminal,” “disreputable,” “combine,” “implicated,” “corrupt,” “brazenly,” “unlawful,” “unwholly” (meaning, doubtless, unholy) and others filling an exclusively denunciatory and censorious office are freely used. The scope and purpose of the agreement is designated as being that the negro convict is to be “sent back to Butler county to prey on the law-abiding public in exchange for a few negro votes for” the Democratic candidate for the Legislature.

It will be observed that Orchard was not a candidate for any office in the gift of the people, and that the main object of the circular was to defeat Mr. Phillips at the polls. Orchard cannot take advantage of the libel, if any, on Phillips. [Diener v. Chronicle Pub. Co., 230 Mo. l. c. 625 et seq.] He can only complain of a libel on himself. But a blow may be so aimed at one man as to intentionally hit another. One may kill two birds with one stone in libel and the circular shows that is what was likely to happen in this case. The question, then, whether the blow was wrongfully aimed is up to be reckoned with.

The petition alleges that Orchard had demeaned himself as an honest man and good citizen, was a person of good name and fame and that his neighbors so .esteemed him until that circular came out. On' demurrer these allegations are taken as true.

A man’s good reputation is within the protection of the law. It would be a sad commentary on the law if it did not sedulously protect a citizen’s right to a good reputation from wrongful attacks precisely as it sedulously protects his other property rights from like attacks. His life, his limb, his. real estate and moveables, are in the keeping of the" same laws that shield his reputation. Now, a dispassionate and intelligent reading of the circular, as reprinted by defendant, tells the story, among others, that its writers' wanted the world to know that Orchard had been guilty of moral turpitude, of conduct forfeiting his right to a reputation as a good citizen and good man in matters of lively concern to the public. If he did in fact, or substantially or through others, what the circular says he did then every word of condemnation was well bestowed, all the licks of the Lacks were well laid on, and they and defendant did excellent and prime public service in publishing the facts and comments to the world in connection with the election to be held that day* All of which is saying no more than if the facts stated by the circular are true, then the comment was timely, however sharp. But if Orchard is falsely accused, what then? His petition says the circular was false. That means he took no part in the negro dicker and made no such promise. That is the view, as said, we are to take on demurrer to his petition, and, in that view of it, was the circular not well calculated to wrongfully take from him his good fame and reputation? -

To dangle a pardon for a thief before the eyes of the low companions and friends of the thief as an inducement for their votes at a public election, as one would hold out an ear of corn to an ox or ass to halter him, or to take part directly or indirectly in stick disreputable scheme debauches public morals,' hamstrings civic virtue and militates against the best interests of society. It is a palpably dishonorable breach of good citizenship. To be falsely charged with doing that is libelous and calls on defendant to either justify, palliate, mitigate, or bring itself within some phase of the doctrine of privilege, or, failing, make just reparation.

There are many technicalities and niceties in the law of libel and slander involving the offices of inducements, innuendoes, colloquiums and nice shading in the definition of terms. The subject-matter is tender, society is not organized on an ideal basis, men are not perfect and the law doing the best it can seeks practical and attainable results, keeping in mind not only the rights of the individual man but the good of society at large. He would he a bold judge who would say that some of the learning is not incomprehensible or that there is not much discord in the cases. It seems settled that each ease, should stand on its own facts, since the language used is rarely the same. Such is the rule in the kindred matter of interpreting wills.

Libel is as difficult of definition as fraud or negligence. There are many pointed ones in the books, but all of them are necessarily couched in general language. In Missouri the lawmaker has given us one, good enough for óur purpose, viz.:

“A libel is the malicious defamation of a person made public by any printing, writing, sign, picture, representation or effigy tending to provoke him to .wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, or any malicious defamation made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives and friends.” [R. S. 1909, sec. 4818.]

Any published writing that fills' the bill of that statutory definition is a libel in Missouri. There must be “malicious defamation,” that is, the injury of another’s reputation by a slanderous communication, detraction, calumny, aspersion. [Web. tit., “defamation;” Diener v. Star-Chronicle Pub. Co., 232 Mo. l. c. 433.] In the present state of our law in this jurisdiction the idea of falsity must be included; for the truth is álways a defense. Indeed the idea of falsity is shadowed forth in the statutory phrase, “malicious defamation. ’ ’ Malice is an ingredient under the definition, but that does not necessarily mean express malice — malice personal to the individual injured. It means malice as defined by the law, though express malice may be shown to enhance punitive damages and reap smart money. So the writing must be of a character to provoke him to wrath, or to expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse.

It is aptly charged in the petition that the alleged libelous article is one of that character. We think on. its face it meets that statutory definition on demurrer; for, if false, does it not plainly indulge in aspersion, calumny, defamation? Are its arrows, on that theory, not winged and tipped with biting epithets and is its studied terminology not that of denunciation and detraction? Among good people, keenly alert to a clean election of good officials and a decent and manly performance of the most solemn duties of good citizenship in casting their ballots for the general weal, the natural and certain tendency of a false circular like that in hand is alleged to be, would be to expose Orchard to public hatred, contempt and ridicule, or to deprive him of the benefits of public confidence and social intercourse, for moral turpitude is brought home to him by the charges. Even in polities to do evil that supposed good may come of it; and the end justifies the means, are not acceptable precepts among right thinking people.

It is argued on behalf of respondent that the petition charges the commission of a crime, and that such construction cannot fairly be put upon the words of the circular, therefore the demurrer was well ruled. If ■there could be no libel without a crime charged in the libelous writing, it would be well worth while to look into that question closely. But such is not the law of libel. Or if the petition counted only, as some petitions have done, on the theory a criminal charge is made in the writing, then it would be well worth while to critically analyze the petition to see whether it charged a crime in fact; for in that view of it the pleader would be held to his preclusive allegation, and if the allegations by way of innuendo were strained construction put upon the language of the writing a demurrer would lie to the petition, precisely as a demurrer wonld lie to the evidence if no case was made on behalf of plaintiff. But in this case the petition, as heretofore pointed out, does not alone attempt to charge a crime. Liberally construed it also charges a libel in a broad sense under the statutory definition we have been discussing.

The law is that defamatory words published of one, if false, are actionable — keeping steadily in mind the definitions of “libel” and “defamation” heretofore given. [McGinnis v. Knapp & Co., 109 Mo. 131; Farley v. Publishing Co., 113 Mo. App. 216; Julian v. Star, 209 Mo. l. c. 89 et seq.] Wherefore we have no call at this time to pass on the question whether the circular also charges a crime under the Corrupt Practice acts relating to elections; for the demurrer, as we have shown, does not break on that question as decisive ; and it will be time enough to pass on it when the .case, if ever, reaches an appellate court on the evidence and instructions and such question be well lodged ;in the case for decision.

Jt is also argued for respondent that on the very Tace of the circular the thing cured itself, that the antidote went with the poison, if any- — that is that self-evidently there conld be, under the wording of the circular, no “boodle” oN “boodleism” as those slang words are defined by those harmless drudges that busy themselves (see Johnson’s dictionary, tit. “Lexicographer”) in tracing the originals and detailing the signification of words, yclept lexicographers (Web., tit. “Boodle;” Boehmer v. Free Press Co., 94 Mich. 7), and no “bribery” in a strict legal sense; therefore there was no crime charged and no libel — this under a line of eases of which Hall v. Adkins, 59 Mo. 144, is a specimen.

We pause to remark, by way or moralizing, that the antidote (or other palliative) theory must be well looked to when called into use; for,' if I wrongfully wound a man it stands me smartly in hand to see to it that I put oil, not salt and pepper, in the wound. [Morse v. Printing Co., 124 Ia. l. c. 717.]

But this view of the matter is but a phase of' the proposition just discussed and' ruled against respondent. We hold that the entire libelous sting in the circular does not lurk coiled up in the words “boodle,” “boodleism” and “bribery,” that is, in the charge of a commission of a crime, qua crime, but lies as well in the whole article, which, if untrue, covers the statutory elements constituting a libel as hereinbefore determined. And the pleading with the innuendoes seems broad enough to take in that view of it. [See authorities cited by appellant.]

Respondent’s learned attorneys cite us to many cases relating to slander which they contend sustain their position. [Pollard v. Lyon, 91 U. S. 225, a leading case and others from our own court on the same line.] But they inadvertently fall, we think, Into the error of putting libel on the.same foot with slander. The learning on the matter teaches us that many things are libelous per se, when put in writing and published that are not slanderous per se, or at all, when spoken by word of mouth. The kernel of the matter in these subtle distinctions lies in the axiom: The spoken word flies; the written letter remains. (Vox emissa volat; litera scripta manet.) [Odgers on Libel (4 Eng. Ed.), 2, et seq.; Ukman v. Daily Record Co., 189 Mo. l. c. 391, and cases cited.]

The suit was belated, yet it comes within the limitation period by five days, and the damages asked, $200,000, are so inflamed as to be impossible. Such prayer is but the child’s cry for the moon. It cannot be said, however, that there is no fad or fashion in these latter days in that direction in libel suits. But none of these matters are before us on demurrer.

The judgment is reversed and the cause remanded with the option to defendant to further plead.

All concur, Woodson, J., in result.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    HENRY CHAPMAN et al., Appellants, v. ST. LOUIS BELT AND TERMINAL RAILWAY COMPANY.
    Division One,
    February 29, 1912.
    1. NEGLIGENCE: Excavating for Railroad: After Condemna- . tion: Question of Fact. Where there is substantial evidence for plaintiff landowners to the effect that the defendant railroad company, after the judgment of condemnation awarding damages, so negligently excavated its roadbed as to cause the high banks on the side thereof to cave and thereby destroy the lateral support which the landowner is ordinarily entitled to, and equally substantial evidence that the railroad company was not negligent in the manner of construction and the amount of' slope allowed, the question of whether or not defendant was negligent becomes one of fact, for the jury’s determination, under proper instructions, and a verdict for defendant rempves the question of negligent excavation and construction from the case.
    2. -: -: -: Additional Damages. Where there has been no negligence in the excavation through the landowner’s land for -a roadbed by a railroad company, after condemnation and an assessment and payment of damages in which were included the value of the land taken and damages to that which remained, the landowner is not entitled to recover additional damages due to the caving of the embankment in consequence of the excavation. The word “damages” used in the constitutional provision stating that private property cannot he taken or damaged for a public use without just compensation, includes damages which are incidental to, or which reasonably flow from, the construction, maintenance and operation of the road, he they present, past or future; and if there was no negligence in the excavation or in the amount of slope, the landowner cannot recover additional damages because the embankment thereafter caved in.
    3. EVIDENCE: Damages: Exclusion. Where the plaintiff was not entitled to recover any damages, the court did not commit reversible error in excluding competent evidence on the measure of damages.
    Appeal from St. Louis County Circuit Court. — Non. J. W. McElhinney, Judge.
    Aeeibmed.

      Lee Meriwether for appellants.
    (1) It was defendant’s contention that the character of soil of this particular cut was such that its sides had a tendency to slide and cave in even though the cut was sloped at an angle less sharp than usual; defendant introduced expert witnesses to support this-contention. Admitting this contention (that the shale and clay sides of this cut presented unusual difficulties because of their extraordinary tendency to slide and cave in), then defendant should have exercised a high degree of care in constructing the cut; and it was error to give instruction 3 (that defendant needed to exercise only ordinary care). (2) The damages paid to plaintiffs by defendant,.in the condemnation suit, were only such damages as could be reasonably expected to result from the construction and operation of a railroad in a legal and proper manner (the noise of engines,' cinders, vibration of trains and the like); they did not include — and could not lawfully include — damage done to plaintiffs’ remaining land by reason of defendant’s improper construction of the cut. For such damage a separate suit must be brought — as plaintiffs have done in the case at bar. Railroad v. Haines, 10' Kan. .439; Lewis on Eminent Domain, «p. 1245. Damages from improper construction or use are excluded. Lewis, Eminent Domain, sec. 714, p. 1249'. (3) The owner of land is entitled to lateral support of it, and his neighbor has no right to dig away the adjacent earth so as to cause the ground to crumble. Carpenter v. Railroad, 53 Mo. App. 369; Hanlan' v. McManns, 42 Mo. App'. 551; Charless v. Rankin, 22 Mo. 566; Mining Co. v. Star Co., 50 Mo. App. 525; Walters v. Hamilton, 75 Mo. App. 237; Murphy v. Gillum, 73 Mo. App. 487.

      R. H. Stevens for respondent; T. M. Pierce of counsel.
    (1) Unless defendant constructed the cut for its roadbed in a negligent manner, plaintiffs cannot recover, because the commissioners awarded to plaintiffs all damages past, present and future, which would reasonably result to plaintiffs land by reason of the construction, operation and maintenance of its railroad. Watts v. Railroad, 23 L. R. A. 674; Clark v. Railroad, 35 Mo. 202; Benson v. Railroad, 78 Mo. 504; Abbott v. Kansas, 83 Mo. 271; Harrelson v. Railroad,-151 Mo. 496; Moss v. Railroad, 85 Mo. 86; Asten v. Nalson, 63 Cal. 279; Hortsman v. Railroad, 18 B. Mon. 218; Boothby v. Railroad, 51 Me. 318; Gates v. Fulkerson, 129 Mo. App. 620'; Jones v. Railroad, 84 Mo. 151. (2) The petition of plaintiffs in this case is founded upon negligence in the construction of the cut and in removing lateral support. Therefore plaintiffs are bound by the allegations in their petition and this question was the question submitted to the jury and to which all of plaintiffs’ testimony was directed. Defendant met this issue and a jury upon the evidence found there was no negligence in the construction of the cut and rendered a verdict on the whole ease for the defendant. Therefore, it follows that all other propositions are simply of no importance in this case.
   WOODSON, J.

This is a suit brought by the plaintiffs against the defendant to .recover $25,000 damages sustained by them through the alleged negligence of the latter in grading its right of way along and adjacent to their property, and thereby causing it to cave in.

The facts are few, and most of them are undisputed. They are as follows:

Some time prior to the institution of this suit,, the defendant brought another suit against the plaintiffs, for the purpose of condemning a strip of land through their property for its right of way. In due time the latter came on regularly for trial, and. after the commissioners heard the evidence pro and con, awarded the defendants, the plaintiffs here, the sum of $28,975 for the value of the land taken for said purpose and for the damages done thereby to the remainder of the tract not taken.

Shortly after the trial of the former case, the defendant here took possession of the said strip of land, and graded it for the purposes of its right of way.

In the present suit, the plaintiffs charge that the defendants so negligently graded the strip that the banks on the sides thereof caved in, and carried with them large portions of their land and soil, to their damage in the sum of $25,000.

The answer of the defendant denied the charge of negligence, and affirmatively alleged that whatever damages the plaintiffs sustained, if any, in consequence of the grading, was compensated for in the previous condemnation proceedings.

This new matter was traversed by a reply.

The evidence for both parties showed substantially, the following facts:

That a proper grade or slope of the banks of the cut was from one and a quarter feet horizontal to one foot in depth, and that if there was still a tendency to slide, the horizontal slope should be increased in extreme cases to two feet horizontally to one foot in depth.

There was substantial evidence introduced on the part of the plaintiffs which tended to show the foregoing rules of excavation were not observed or followed by the defendant; and that it cut-the banks almost perpendicular for the first twelve feet, and that much less slope than one and a quarter feet to one was made for the remaining distance, which was about twenty feet.

Upon the other hand, the defendants introduced equally credible evidence, it seems to us, tending to contradict the evidence introduced by appellants; and also to show that in excavating the cut the railway company left a slope for the banks thereof of from one and one-half to two feet horizontal to one foot in depth.

The evidence for the defendant also tended to show, that there was no sliding or caving of the banks during the course of the excavation, but that near the bottom of the cut there was what is called a bed of shale or joint clay, and subsequently thereto, during wet weather, water seeped through the upper soil and flowed over the surface of the shale, and thereby caused the latter to become greasy-like or slippery, and caused the former to slide and cave into the excavation.

In rebuttal, the evidence for appellants tended to show that by the exercise of ordinary care, and by the expenditure of a reasonable sum of money by the company, the latter condition could have been remedied by driving piles near the bottom of the cut, and filling in behind them with brick-bats, or other materials of similar character, and by planting trees thereon.

The evidence of defendant tended to contradict the feasibility of the latter scheme.

At the close of the'introduction of all the evidence, the court, at the request of the defendant, and over the objections of plaintiffs gave to the jury the following instructions, viz.:

“3. The jury are instructed that if you believe and find from the evidence that defendant, St. Louis Belt & Terminal Railway Company, exercised ordinary care in erecting, constructing and digging the cut for the establishment and construction of its roadbed, then your verdict must be for the defendant and against the plaintiffs, even though you further find and believe from the evidence that the plaintiffs ’ land cracked open on the north, sloughed off and caved in, to plaintiffs’ damage.
“4. The court instructs the jury that the defendant, St. Louis Belt & Terminal Railway Company, leave being duly had, on the 29th day of October, 1904, applied to the circuit court of St. Louis county, by a petition setting forth the general directions in which it was desired to construct its road, together with the description of the plaintiffs ’ land, and prayed therein • for the appropriation, for the purpose of constructing, maintaining and operating with all convenient speed its railroad, and for the purpose of cutting embankments necessary for the proper construction of said road, a strip of land on the south side of plaintiffs’ land 210 feet wide, which said strip was 135 feet south of the center line of the proposed route, and seventy-five feet north of said center line. And in said petition also prayed for the appointment of three disinterested freeholders as commissioners tó assess the damages plaintiffs might sustain in consequence of the establishment, erection and maintenance of said railroad, and the appropriation of said strip of land 210 feet wide as right of way. The circuit court of St. Louis county granted said petition, and thereafter on the 16th day of November, 1904, duly appointed J. S. Sidebotham, Chas. J. Harwood and ¥m. W. Heaps, disinterested freeholders, to assess said damages aforesaid; that thereafter said commissioners viewed said land and returned under oath their assessment to the clerk of the court, together with a description of the land for which such damages were assessed,, and by which report said commissioners awarded to these plaintiffs in said cause the sum of $28,975, and said award of $28',975 so awarded by said commissioners was paid by the defendant to these plaintiffs and accepted by them.
“Therefore you are instructed by the court that plaintiffs can not recover against the defendant in this suit, and your verdict must be for the defendant, unless you find and believe from the greater weight of the evidence that the defendant in erecting, constructing and digging a cut on said strip of land so condemned did so in a negligent manner, and that said negligence directly contributed to the sliding and caving in of said land.
“5. The court instructs you that by the payment of the award of $28,975 in the' condemnation suit against plaintiffs, evidence of which has been introduced at the trial, the defendant fully compensated plaintiffs for all lands taken by it for its use as a right of way and described in the petition in condemnation, as well as for all damages done to the remainder of said tract of land by reason of said taking and by reason of the occupation, improvement and use thereof for railroad purposes; that said damages so assessed, awarded and paid plaintiffs included full compensation to plaintiffs for all damages resulting to their remaining land along and through which said right of way extends by reason of the construction of the cut in question, the sloping of its sides and the establishing of its grades so far and to such an extent as the same was done in the usual and customary way, and with reasonable and ordinary care and skill, and if you find that said cut was so constructed, your verdict must be for the defendant even though you believe from the evidence that the slipping or caving of plaintiffs ’ lands referred to in the evidence was caused hy the construction of said cut.
‘ ‘ 6. The court instructs the jury that the defendant railway company is not' responsible in damages to these plaintiffs merely because of the sliding and caving in of the land in question.
“7. The court instructs the jury in this case that it was not the duty of the defendant to build a retaining wall. ”

And the plaintiff asked among others, the following instruction, which the court refused:

“1. The court instructs the jury that the owner of a parcel of land is entitled to the lateral support of it, and his neighbor has no right to dig away the adjacent earth so as to cause the ground to crumble.
“2. The court instructs the jury that the owner of land has the right to have his soil preserved intact as against its own weight and the effects of the elements.”

Objections and exceptions were duly made and saved to all instructions given and refused.

The cause was submitted to the jury and they found for the defendant and plaintiffs duly appealed.

I. By reading the instructions given by the court, on behalf of the respondent, and those refused asked by the appellants, it will be seen that there are hut two questions presented to this court for determination. One is a question of fact, and the other is a proposition of law, which will be considered in the order stated.

Attending the first: Did the respondent so negligently excavate its roadbed, as to cause the banks on the sides thereof to slide and thereby destroy the' lateral support which the appellants were ordinarily entitled to, and in consequence thereof cause their land to cave in?

From reading the statement of the case, it will he seen that there was ample evidence introduced by the respective parties tending to prove their theory of the case. In fact, if we were the judges of the weight of the evidence, we would he inclined to hold that it preponderates in favor of the respondent.

That issue was fairly submitted to the jury, under proper instructions given by the court; and the jury having found against the appellants, they are bound bv the verdict.

We, therefore, rule the first question against the appellants.

II. It will also be seen by reading the refused instructions ashed by appellants, and those given on behalf of the respondent, that the legal proposition involved in this case is this:

In the absence of negligence, and we have held there was none' in this case, is a landowner entitled to recover damages from a railroad company after condemnation proceedings are had and the damages paid, for injury sustained by reason of his land caving, in consequence of the excavation of the roadway adjacent thereto ?

Counsel for appellant affirm this proposition, and respondent denies it.

The .right of a railroad company to take private property for its right of way is conferred upon it by the supreme or sovereign authority of the State; and under our Constitution private property cannot be taken or damaged for public use without just compensation being first paid. [Sec. -21, art. 2, Bill of Rights.]

The authorities are quite uniform in holding that the damages mentioned in the Constitution are those which are incidental to, or which reasonably flow from> the construction, maintenance and operation of the road, be they past, present or future. This proposition has. been so frequently and fully discussed and settled by this and other courts of the country, it would be a supererogation of labor to do more than cite a few of the cases so holding. [Watts v. Norfolk & Western Ry. Co., 23 L. R. A. 674; Clark v. Hannibal & St. Joe R. R. Co., 36 Mo. 202; Benson v. Chicago & Alton R. R. Co., 78 Mo. 504; Abbott v. Kansas City, St. Joe & C. B. Ry. Co., 83 Mo. 271; Harrelson v. Kansas City & Atlantic Ry. Co., 151 Mo. 482, subdivision 3, p. 496; Moss v. St. Louis, Iron Mountain & Southern Ry. Co., 85 Mo. 86; Aston v. Nolan, 63 Cal. 269; Hortsman v. Covington & Lex. Ry. Co., 18 B. Mon. 218; Boothby v. Androscoggin & Ken. Ry. Co., 51 Mo. 318; Gates v. Fulkerson, 129 Mo. App. 620; Jones v. St. Louis, Iron Mountain & Southern Ry. Co., 84 Mo. 151.]

In addition we might add that, if we correctly understand the petition, it only counts on damages done in consequence of negligence and not upon the absolute right to lateral support. But be that as it may, the damage's caused by the sliding and caving of appellants ’ property, which was purely incidental to the construction of the railroad, was assessed. and paid for' in the condemnation proceedings; and it would be highly unjust to compel the company to pay that damage again.

III. Counsel for appellants also complains of the action of the trial court in the rejection of certain evidence offered.

The evidence so excluded only went to the measure of damages, if any, appellants had sustained; and if as we have held, they are not entitled to recover under any view of the case, then clearly, there was no reversible error in the exclusion of the evidence mentioned.

We are, therefore, of the opinion that the judg•ment should be affirmed. It is so ordered.

All concur.


text:
    R. F. HOLLOWAY et al., Board of Commissioners, To the Use of Willow Springs Special Road District et al., Appellants, v. HOWELL COUNTY.
    Division One,
    February 29, 1912.
    1. ACCOUNTING: When Right Exists. In no way can an ac; count exist or a right to an accounting spring except the relation of debtor and creditor exist between plaintiff and defendant by contract, express or implied, or some obligation to pay arises out. of some fiduciary relation between the two.
    2. SPECIAL ROAD DISTRICT: County Revenue: Application for. A special road district cannot, in after years, recover from tbe county its share of the county revenue to which, under the statute, it was, within some previous year, upon timely application, entitled.
    3. —-: --: -: Necessary. Under Sec. 10594, R. S. 1909, requiring the county court, in counties wherein special road districts have been organized and money has been collected as county taxes upon property therein, “as such taxes are collected and as the board of commissioners of such special road district shall make application to such county court,” to draw warrants for the district’s proportionate share of such taxes, the application by the commissioners is a condition to the district getting any of the fund. Without the application the court is not required to draw a warrant in' favor of the district; and if the year has been permitted to go by without such application, the district cannot in a subsequent year recover the amount it might then have had.
    4. -: -: -: Unused Funds. Because a special roa,d district, which made no application therefor, did not get its proportionate share of the county revenue during a previous year, it does not follow that its share is still in the county treasury when it sues for the same. Even if there was “county revenue” left in the treasury at the end of the year after the payment of the indebtedness and expenses of that year, the county court had the right under the law to transfer the unused part to other proper funds and use it for county purposes for' ensuing years or existing deficits.
    5. -: -: -: Cash System. The theory of our system of county government is that counties must run their business affairs on a cash system; and it would throw that system into endless confusión to permit a special road district, long after events it apparently acquiesced in by not applying for its share of the county revenue, to hark back to past years and recover judgments for alleged past deficiencies, which, under the cash system, presumably the county has no present ability to pay.
    Appeal from Howell Circuit Court. — Ho». Henry D. Green, Special Judge.
    Aeeikmed,

      N. B. Wilkinson and W. P. Campbell for appellants.
    (1) The action is for an accounting to determine the amount of money withheld by the county which belongs to'the special road district; not a mandamus to compel immediate payment. Therefore it is not a defense that there will not be a surplus of revenue for 1908 with which to pay the judgment; nor is the fact as alleged in the answer that the county has spent the money in payment of its current expenses. Vaughn v. Appleby, 136 Mo. 408; State ex rel. v. Johnson, 162 Mo. 261. (2) Under the proviso at the close of section 9618 the road district is entitled to at least one-fifth of the taxes collected from property within the district under the levies for county purposes for the years 1903 and 1906; and one-fourth for the years 1904 and 1905, the sum sued for. R. S. 1899, sec. 9618-9619. (3) Under the act in question the county court does not levy a road tax on the property within the road district, but levies a tax upon all property within the county for county purposes, and appropriates a portion of the revenue so derived to the road district as a road fund. Within certain limits as to the amount to be appropriated, the county court is invested with discretion, otherwise its functions are ministerial. (4) The provisions of the statute regulating the proceedings; the methods; and the duties of the officials through whom the purpose of the Legislature is accomplished, are directory; so that the laches of the county court and road commissioners cannot deprive the public of the benefit of this road fund. Parks v. State, 1 Mo. 185; Marion County v. Moffett, 15 Mo. 604. (5) For the misappropriation by the county court of the road fund of the special road district, the county is liable to an action. It is immaterial whether this is treated as a suit in equity to declare and enforce a trust, or at law on a running account for money had and received. Strough v. Jefferson County, 119 N. Y. 212; Bridges v. Sullivan County, 92 N. Y. 570 ; Bush County v. State, 103 Ind. 497; Potter County v. Oswego Township-, 47 P'a. St. 162; Port Richmond v. Richmond County, 11 App. Div. (N. Y.) 217; Spiclell v. Johnson, 128 Ind. 235; Bush County v. Trees, 12 Ind. App. 478; White Sulphur Springs v. Pierce, 21 Mont. 430; Oneida v. Madison County, 136 N. Y. 269-; Soderberg v.' King Co., 15 Wash. 194; Pimental v. San Francisco, 21 Cal. 352; Bayne v. United States, 93 U. S. 642; Attorney-General v. P'erry, 2 Comyn, 481; 11 Cyc. 517. (6) Where money is paid into the county treasury without right o,r consideration, and which it would be inequitable for the county to retain, assumpsit may be maintained against it to recover such moneys. Soderberg v. King Co., 15 Wash. 194; Pimental v. San Francisco, 21 Cal. 352; Bayne v. United States, 93 U. S. 642; Attorney-General v. Perry, 2 Comyn, 481.

      O. F. Wayland and J. L. Van Wormier for respondent.
    (1) The plaintiffs have failed to follow the plain requirements of the section of the statute under which they claim the right to recover, which section requires them-to first make application to the county court by the board of commissioners of such special ,road district ; no proof of which was ever offered by them. B. S. 18991, sec. 9618. (2) Plaintiffs have mistaken their remedy; they should first have made application for, and presented their claim for allowance, and on rejection of same have appealed to the circuit court, or instituted mandamus proceedings to compel the county court to appropriate funds, allow their claim and draw warrants on some. B. S. 1899, secs. 1798,1799, 9287. (3) The tax levy of Howell county for the .years 1904, 1905 and 1906 having been only forty cents on the one hundred dollars valuation plaintiffs might have had a remedy for enforcing their claim under the provisions of Sec. 9274, R. S. 1899, if they had taken the proper steps in the year 1906 and had a special tax levied and collected for the payment of this indebtedness, if any, claimed to be dne the "Willow Springs Special Road District, but failing to do so they are now without any remedy. State ex rel. v. Railroad, 169- Mo. 563. (4) For county purposes the annual rate of taxation on property in counties having six million dollars, or less, shall not, in the aggregate, exceed fifty cents on the hundred dollars valuation. The valuation of property in Howell county is now, and was at all times stated in plaintiffs’ petition less than six million dollars, and having gone to the extreme constitutional limit and levied a tax of fifty cents on the hundred dollars valuation in Howell county- for the years 1907 and 1908, and all the revenue derived from said levy and all other sources being required and used to pay the ordinary necessary expenses of the county for the current year 1908', the Willow Springs Special Road District was not entitled to, and could not receive anything from the county treasury. Sec. 11, art. 10, Constitution; R. S. 1899, see. 9282. " (5) No county, city, town, township, school district or other political corporation or subdivision of the State, shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose. To have been entitled to recover in this case, it would have been necessary for plaintiffs to have alleged and proven that there would be a surplus in the years 1903, 1904, 1905- and 1906, and the current year 1908, after paying all the current expenses of each of said years. Sec. 12, art. 10, Constitution; State ex rel. v. Payne, 151 Mo. 663; Railroad v. Thornton, 152 Mo. 570; Book v. Earl, 87 Mo. 246; Andrew Co. ex rel. v. Schell, 135 Mo. 31. (6) The burden of proof is not on the county to show that the revenue appropriated for the payment of current county expenses was not exhausted. Plaintiffs must allege and prove this fact. Bank v. Douglas Co., 146 Mo. 43. (7) It is doubtful if funds appropriated for special road districts come under the second subdivision of said Sec. 9283 (and therefore constitute a part of the necessary ordinary county expenses), as this provision of the statute refers to the general county road fund, and not a special road district, or a small subdivision of the county. State ex rel. v. County Court, 142 Mo. 575. But even if so construed, it would not help plaintiffs in this case, for the reasons mentioned in the next two points. (8) The amount claimed by plaintiffs to be owing from Howell county to said Willow Springs Special Road District, if any, is all past indebtedness, being for the years 1903, 1904, 1905 and 1906, and being for past indebtedness, could only be paid out of any surplus remaining in the county treasury after first paying the necessary expenses of the municipal government for the year 1908 and having failed to show that fact, plaintiffs were not entitled to recover. Sec. 12, art. 10, Constitution; R. S. 1899; sec. 6771; State ex rel. v. Railroad, 169 Mo. 563; Andrew Co. ex rel. v. Schell, 135 Mo. 31. (9) This past indebtedness, claimed by said special road district, even if held to be valid, cannot he paid from the revenue provided for current county expenses, until all warrants drawn fo.r .expenses .of the year 1908, for which taxes were levied, have been paid, and having failed to show any excess of receipts over expenditures for the year 1908, plaintiff cannot recover. Andrew Co. ex rel. v. Schell, 135 Mo. 31; State ex rel. v. Railroad, 169 Mo. 574; Anderson v. Ripley County, 181 Mo. 46; Bernard & Go. v. Knox Co., 105 Mo. 382.
   LAMM, J.

Suit in equity for an accounting ‘ ‘ and for all equitable relief which the facts of the case warrant.”

Brought in the Howell Circuit Court in 1908, the regular judge disqualified himself, and Henry D. Green, Esq., of the Howell bar, was selected as special judge. Qualifying, he tried the case. From a decree for defendant, plaintiffs appeal.

According to the proof the individuals in part composing the aggregation of plaintiffs bear the official relations to the Willow Springs special road district indicated in the title of the cause and alleged in the bill. It appears, also, that the real plaintiff, the Willow Springs special road district (for convenience, hereinafter called the “district”), is a special road district six miles square, including Willow Springs, a city of the fourth class, which district was organized in March, 1903, under the Act of March 9, 1895, Laws 1895, p. 253 et seq.

That act was carried forward as article 10, chapter 151, Revised Statutes 1899, and is again carried forward with amendments made in 1903 (Laws 1903, p. 260-1) and in 1909 (Laws 1909, p. 765) and in 1907 (Laws 1907, p. 414) into Revised Statutes 1909, as article 4 of chapter 102. It was further amended in 1911. [Laws 1911, p. 370 et seq.]

The original act apparently gave the commissioners of the district the same power to contract given road overseers. There is, however, by design or inadvertence a remarkable omission, viz., in the act not maldng the district a body corporate or giving it a name or any power to sue or be sued. Its corporate name, body and power to sue and be sued were first given by legislative grant in the Laws of 1909, p. 765. No point is made on such legislative lack of power, and we pass the matter by without inquiring into the legal significance of such omission.

The object of this suit is to have an accounting in equity against the county for an alleged share of the taxes levied and collected by Howell county as “county revenue” in the years 1903, 1904,1905, and 1906. That is, the suit travels on the theory the relation of debtor and creditor existed between the county and the district by contract, express or implied, o.r that the obligation to pay arose out of some fiduciary relation between' the two. In no other way could an “account” exist, or the right to an “accounting” spring. The allegation of the bill is that there is ‘ ‘ due ’ ’ the district for 1903, the sum of $389.82; for 1904, the sum of $389.-82; for 1905, the sum of $427.68; for 1906, the sum of $451.50; for which total, with interest, judgment is asked. The proof is of such sort that if any recovery is proper, the total of those sums is the measure of recovery.

It is alleged in the bill that in 1903, the county court of Howell county levied fifty cents to the one hundred dollars of valuation on all property subject to taxation in the district “for county revenue” for the current year; in 1904, forty cents; in 1905, forty cents; in 1906, fifty cents. The proof, as we gather, is that these levies were on property in the whole county, including of course the district in question. The district got no part of those levies and on that fact the right to relief is predicated.

In addition to the fifty cents ’ levy above in 1903, the county court levied a tax on all property in the county of ten cents on the one hundred dollars valuation for “road purposes;” in 1904 in addition to the forty cents’ levy above it levied on property in the district outside of the city of Willow Springs twenty cents “as a road tax;” in 1905 in addition to the forty cents’ levy above it levied on such property in the district twenty cents “as a.road tax;” and in 1906 in addition to the fifty cents ’ levy above it levied twenty cents for road purposes.

■While the record is not quite clear yet the ease seems to have proceeded below on the theory that the district got whatever taxes were collected under these special levies, and its share of the general ten cents’ road levy in 1903. On the maxim that public officers are presumed to do their duty (absent countervailing testimony) the case may proceed here on the theory the district got its share of all such taxes collected and put in defendant’s treasury.

In this connection it appears that Howell county has less than six million inhabitants. On the theory (a sound one) that road taxes, in the years in hand, are but part and parcel of the taxes for “county revenue” or for “county purposes” (R. S. 1899, sec. 9283; now Sec. 11423, R. S. 1909; Ibid, sec. 10695, infra), it is suggested by plaintiffs ’ counsel that all these road levies were void as being in excess of fifty cents on the one hundred dollars’ valuation allowed for counties of that size. [Const., art. 10,'sec. 11.] Whether the road tax levies were partly or wholly void as excessive, or for other reason, or whether the infirmity was in the levies for county purposes, we need not inquire. There is nothing in the pleadings or proofs to show that such issue was sprung or threshed out below, nor anything in the record to show that the road levies were not in fact collected by the county and then paid to and used by the district. Under such circumstances it is not apparent how the alleged illegality of these special road levies affects the merits a whit, or why we should go into that question at all.

We pause long enough to remark there is a precept that every man is presumed to know the law. But should not that precept be amended so as to read, every man is presumed to know the law, except the road lato? Certain it is that in some of its features it is a tangled skein of incongruities and ambiguities, if not absurdities. Some of its provisions overlap, they do not make a neat joint with cognate sections and the law needs scientific revision. It would be a. bold court that did not approach the road laws of Missouri with a questioning eye and a modest degree of doubt, Doubtless the county court, in the light it had, thought it was tracking the law and dealing fairly by the district in making those special levies, which if taken as separate from the levies for county revenue, overleaped constitutional barriers.

There are two sections of the statutes bearing directly on the subject-matter of this suit, viz.: Sections 10594 and 10595’, Revised Statutes 1909',- both brought forward from the original act of 1895.

Section 10594 reads: “In all counties wherein special road districts may be organized under this article, where money shall be collected as county taxes upon property within such special road district, or as dramshop, pool or billiard table licenses on business within such special road district, the county court shall, as such taxes or licenses are collected, and as the board of commissioners of such special road district shall make application to such county court, draw warrants upon the county treasurer, payable to the treasurer of such board of commissioners, or to such other persons as the board may from- time to time designate, for an amount bearing such proportion to the entire amounts of the year’s taxes so collected upon said property as the amounts annually appropriated or expended for road and. bridge purposes shall bear to the total county revenue for such year, and also to an amount equal to one-half of all the dramshop, pool or billiard table licenses collected by the county as county licenses from such businesses carried on within the limits of such special road district; and all such sums so paid out shall be expended upon the roads under the charge and control of such board of commissioners, as in this article provided: Provided, that the amount of the taxes collected by the county on the property within such special road district, and thus applied to the improvement of the roads, shall not be less than ten cents nor more than twenty cents on a hundred dollars of assessed val-nation of the property within such special road district. ’ ’

Section 10595, reads: “The county courts of the counties wherein all or part of such road district may he situated, at the term when other taxes are levied, shall levy upon every male inhabitant in said district and without the limits of an incorporated town or city, over twenty-one and under sixty years of age, a poll tax of two dollars and fifty cents, and upon all real and personal property in said district, taxable for state purposes, a tax of not less than ten nor more than twenty cents on the hundred dollars’ valuation, which shall be a part of the tax which may be levied for county purposes; which levy of taxes shall be collected as state and other county taxes are collected.”

(Nota bene: If there were any pool, billiard or dramshop businesses carried on .in Willow Springs and licenses granted by Howell county therefor in 1903-4-5 or 6, the district does not complain of not getting its ratable share of such licenses.)

It will be observed that by the body of section 10594, supra, the amount to be drawn by the district must bear such proportion to the amount collected as the amounts annually appropriated or expended for road and bridge purposes bear to the total county revenue of such year. That phraseology connects itself with other cognate sections (for instance, with Sec. 11423, R. S. 1909, and Sec. 9436, R. S. 1899). Those sections allow a discretion to the county court possibly wider than section 10595,. supra, or the proviso in section 10594, supra. But the ease at bar does not call for an exposition of the statutes in that regard.

It is not alleged in the bill nor does the proof show that the hoard of commissioners of the district contracted for labor, material or implements with the view to sharing in the “county revenue” for any of the years in question, or that any contractor for labor, material or road tools holds any claim against the district fox those years. If contracts were outstanding or district debts existed for those 'years we might have a different case to deal with.

Closer home and more to the point, it is not alleged in the bill or shown by the proof that the board of commissioners of the district made application to the county court in any of those years for a share of the county revenue raised by the tax levies in question.

Observe, section 10594, supra, only required the county court to draw warrants upon its treasurer ‘ ‘ as the board of commissioners of such special road district shall mate application to such county court.” Such application is made a condition to getting any of the funds. Why was that condition made by the lawmaker? The reasons are manifest. The district might not need the money. So, the county court, charged with the duty of distributing the county revenue and keeping the county on a cash basis, might stand informed by such application of the need and demand and thereby take care to close up the year’s business on such basis by adjusting its general expenditures accordingly.

If such application had been made in this case and refused, we do not say the district could have sued in equity as here, but we do say it might have had a timely legal remedy by mandamus or otherwise.

The bill alleges that the share of the district is still in the county treasury, but the proof shows nothing of the sort. Whatever mere theory be indulged by way of inference, one way or the other, the actual fact is, as shown by the proof, the money levied for county purposes was used for county purposes, presumably for paupers, insane persons, the salaries of officials, the expenses of running the courts, jury fees, expenses of elections, criminal costs and roads and bridges elsewhere. {Vide, R. S. 1909, see. 11423.] It is not .clear there was any “county revenue” left at the end of any year after paying the indebtedness and ■obligations of tbe county for the current year. But if there was, then under certain statutory conditions, the county court had the right to transfer it to other proper funds and use it for county purposes for ensuing years or existing deficits, if any. after all contracts entered into with reference to the current year creating present indebtedness had been complied with and all outstanding current county obligations had been satisfied. [State ex rel. v. Johnson, 162 Mo. 621; State ex rel. v. Appleby, 136 Mo. 408; Decker v. Diemer, 229 Mo. 296.]

■ This view of the law but establishes a sensible and practical working plan for transacting the business affairs of the county. In the Decker case the legality of a court house fund made up in part of the odds and ends of unused funds was sustained. There is in that case an extensive discussion of the statutes relating to the administrative details in handling county funds. We will not repeat what is there said.

The theory of our present system of county government is that counties must run their business affairs on the “cash system.” [Decker v. Diemer, supra, l. c. 330.] Running in debt is easy and pleasant while it lasts. Paying is “another story.” The pleasure of debt making is denied by law to Missouri counties; they can anticipate their revenue, but only for the current year. [State ex rel. v. Railroad, 169 Mo. l. c. 574-5.] The road fund claimed in this case, as said, was levied as county revenue. It was county revenue; any part of it not called for, for current year purposes, became, under the facts of this case, an unexpended and unused part of the county revenue, subject to be disposed of as indicated in the Decker, Johnson and Appleby cases, supra. As near as we can make out it was so used. It would throw into needless confusion the whole cash scheme of county government to permit a special road district long after events it apparently acquiesced in to hark back to past years and' recover judgment against a county for alleged past deficiencies, which., under the cash system, presumably the county has no present ability to pay. Especially so where no timely and statutory application was made for the fund as here. Something is made of the fact that in September, 1908 (at the time of the trial), there were several thousand dollars in the county treasury to the credit of the county revenue fund. We see no logical connection between that fact and defendant’s liability.

We are cited to many interesting eases iu other States, of which The Village of Oneida v. Madison County, 136 N. Y. 269, and Spidell v. Johnson, 128 Ind. 235, are samples. There actions for money had and received were allowed against counties that had used funds collected for a specific purpose and belonging to other public corporate bodies to pay their debts. But the facts in those cases are dissimilar to those here in obvious particulars, and we are not familiar with the statutes of those States which may have lent color to those decisions.

There are other questions raised we deem immaterial.

Let the judgment be affirmed.

All concur.