author: MARSHALL, J.

text:
    LATAPIE-VIGNAUX, by next friend, v. ASKEW SADDLERY COMPANY, Appellant.
    In Banc,
    January 23, 1906.
    1. ELEVATORS: Manufacturing Buildings: Protecting Opening: Meaning of Statute. The statute (Laws 1891, p. 159), requiring all openings to elevators in manufacturing buildings, etc., to be protected by trapdoors or guard-rails, etc., and all due diligence to be used to keep such trapdoors closed except when in actual use, was not meant to prescribe such precautions in order to protect persons whose duty it is to operate the elevator, while doing so. It leaves the duty of the master to the servant employed in operating the elevator the same as it was at common law. It was meant to prevent persons who work around the elevator while not in use from falling into the elevator shaft.
    2. -: Action Under Statute: Shifting Position. Where the case was tried in the low;er court upon a petition and instruction which predicated plaintiffs right to recover under the statute relating to the protection of elevators when not in use, he will not on appeal, when the facts reveal that the elevator was in use, be permitted to recover as for common-law negligence.
    3. -: -: Common-Law Negligence: When Not Available. A party who predicates his right of recovery upon a statute, and does not invoke the aid of the common law, cannot invoke the rule that the statute did not destroy his common-law right to recover.

      4. -: -: Recovery Under Statute. The statute (Laws 1891, p. 159; sec. 6435, it. S. 1899) does not give to an employee the right to recover for negligently leaving open the opening to an elevator hatchway while the elevator is in actual use. And if plaintiff’s own evidence establishes the fact that it was in actual use at the time he was injured, and being operated by himself, his action based on the statute must fail.
    Appeal from. Jackson Circuit Court. — No». James Gibson, Judge.

    Reversed.

      Lathrop, Morrow, Fox & Moore, Thomas N. Reynolds, James P. Gilmore, George J. Mersereau and Gardiner Lathrop for appellant.
    (1) Plaintiff, in Ms testimony, swore and claimed that at the time he was injured he was in the act of using the elevator, which was, therefore, if plaintiff’s story he accepted, in actual use at the time of the alleged accident, and defendant was not, therefore, guilty of any negligence with respect, thereto at the time and in the manner claimed hy plaintiff, and he cannot recover in this action. Secs. 6435, 6450, R. S. 1899; Malloy v. Real Estate Ass’n, 156 N. Y. 205; Poindexter v. Paper Co., 84 Mo. App. 352; Connell v. Tel. Co., 108 Mo. 459; State v. Bryant, 90 Mo. 137; State v. Howard, 137 Mo. 289; State v. G-ritzner, 134 Mo. 512; Dudley v. Tel. Co., 54 Mo. App. 391. (2) Even if defendant had not complied with the statute in keeping the guard-rail in place (which we deny) plaintiff claimed that he had at times seen it raised when he claims it should have been down; that he knew it was raised shortly prior to the time of the alleged accident, and was so raised when he went to use the elevator, and he therefore, waived any provisions of the statute with reference to keeping the same down or closed. Spiva v. Coal & Mining Co., 88 Mo. 68; Higgins Carpet Co. v. 0 ’Keefe, 79 Fed. 900; Freeman v. Paper Mill Co., 24 N. Y. Supp. 403; Graves v. Brewer, 38 N. Y. Supp. 566; White v. Lith. Co., 131 N. Y. 636; Knisley v. Pratt, 148 N. Y. 372; Bailey’s Personal Injuries relating to Master and Servant, sees. 504 and 505; 20 Am. and Etag. Ency. Law (2 Ed.), 118; Railroad v. Williams, 39 S. W. 967; Portance v. Coal Co., 77 N. W. 875; Bonnett v. Railroad, 89 Tex. 250; Seldomridge v. Railroad, 46 W. Ya. 569; Hughes v. Railroad, 27 Minn. 137; Bengston v. Railroad, 47 Minn. 486; Bancroft v. Railroad, 67 N. H. 466; Linton Coal & Mining Co. v. Pearson, 43 N. E. 651; Goldthwait v. Railroad, 160 Mass. 554; Murch v. Thos. Wilson, Son & Co., 168 Mass. 408.

      Walsh $ Morrison and Virgil Gonkling for respondent.
    (1) Defendant violated a positive statute and its act in so doing was negligence per se. R. S. 1899, sec. 6435; Gratiot v. Railroad, 116 Mo. 463; Calliot v. Mfg. Co., 71 Mo. App. 171; McNown v. Railroad, 55 Mo. App. 590; Lore v. Mfg. Co., 160 Mo. 621; Reynolds v. Hindman, 32 la. 146; Devlin v. Gallagher, 6 Daly 494; Kelley v. Anderson, 15 S. D. 107. (2) The evidence shows that the negligence of the defendant, continuing down to the very instant of the catastrophe, was the proximate cause of the injury. Settle v. Railroad, 127 Mo. 341; Schlereth v. Railroad, 96 Mo. 515. (3) Defendant’s negligence in failing to guard the hatchway, and not the plaintiff’s loss of balance, was the proximate cause of the accident. Lore v. Mfg. Co., 160 Mo. 625; Mustek v. Dold, 58 Mo. App. 322; Henderson v. Kansas City, 177 Mo. 477; Taylor v. Felsing, 164 111. 338. (4) Where a corporation has been guilty of negligence in violating a duty imposed by statute, contributory negligence must be clearly shown in order to constitute a defense." Petty v. Railroad, 88 Mo. 321; Russell v. Receiver, 70 Mo. App 97; Jennings v. Railroad, 112 Mo. 276; Bluedorn v. Railroad, 108 Mo. 449; Bartlett v. Coal Mining Co., 68 111. 174. (5) Plaintiff did not waive the provisions of the statute. Bluedom v. Railroad, 108 Mo. 447. (6) It was no part of plaintiff’s duty to lower the guard-rail, particularly as he had never been instructed to do so. Reber v. Tower, 11 Mo. App. 207; Welsh v. Butz, 202 Pa. St. 65; Allen v. Jakel, 115 Mich. 486. (7) The verdict is authorized under the common law, and the statute should not be held to destroy the common-law remedy. Byalls v. Mechanic’s Mills, 150 Mass. 195; 20 Enc. of PI. & Pr., 603; Col. Mining and E. Co. v. Mitchell, 26 Col. 284; Senn v. Railroad, 108 Mo. 152; Wise v. Ackerman, 76 Md. 375; Curtis v. McNair, 173 Mo. 283; Reichla v. Gruensfelder, 52 Mo. App. 58;-Welsh v. Butz, 202 Pa. St. 65.
   MARSHALL, J.

— This is an action for $35,000 ■damages for personal injuries received by the plaintiff on the 16th of July, 1901, by falling into an elevator shaft on the premises of the defendant, on Third and Delaware streets in Kansas City, Missouri. There was a verdict and judgment for the plaintiff for $7,500, and after proper steps the defendant appealed.

The Issues. The petition alleges that the defendant is a domestic corporation, owning and operating a manufacturing, mechanical and mercantile plant; that plaintiff, at the time of the accident, was in the employ of the defendant, as a common laborer, and was thirteen and a half years old; that, acting under orders of the defendant, and while engaged in his duties as such laborer, he proceeded to the fourth floor of the building for the purpose of loading horse collars upon a certain elevator in said building, and bringing the same, on the elevator, to a lower floor; that while so engaged, his duty compelled him to get into close proximity to the elevator shaft, and, while in the act of causing the elevator platform to arise from the lower floor by pulling on the rope provided for that purpose, on account of the negligence of the defendant, he lost his balance, fell through the elevator shaft and was seriously and permanently injured.

The court withdrew from the jury all allegations of negligence on the part of the defendant except the charge that the defendant negligently and carelessly failed and neglected to protect the hatchway of the elevator hole on the fourth floor by good and sufficient safety catches, or strong guards or rails at least three feet high, and further instructed the jury that defendant was not guilty of negligence in that regard, if the jury believed from the evidence that the plaintiff was actually using the elevator at the time he was hurt.

The answer is a general denial, with a plea of contributory negligence and a plea of assumption of risks. The reply is a general denial.

The uncontroverted facts are, that the plaintiff was employed by the defendant, and had been so employed for four months before the accident, to wash horse collars, shine them and stamp them, and that his station for so doing was on the first floor of the building; he was a bright, intelligent boy; had worked at the Armour Packing House off and on for four months; had worked at Culp’s drugstore for about a month, and had worked at a candy store for about a month. In the rear of defendant’s old building there is a freight elevator extending from the basement to the fourth floor, which had no cage thereto but consisted of a floor or platform with the upright beams and rods usually employed in the construction of freight elevators. In the basement the elevator is not inclosed except by the rock wall at the back thereof. On the first floor the elevator is completely inclosed from the floor to the ceiling, and the entrance to the elevator is through a door which worked on ropes and pulleys like a window, and on the . inside, had a cross-beam guarding the opening when the door was raised. On the second floor the shaft was completely inclosed, and the entrance to the elevator was by a double door, which closed with a catch at the top, and likewise had a bar across the opening on the inside of the door. The same condition existed on the third floor. On the fourth floor the elevator shaft was not inclosed,except by posts that helped to stipport it. Around the sides there were piled a large number of horse collars placed so as to prevent anyone from falling into the shaft. Across the front of the elevator there was a two-by-four oak or pine bar, which worked on a hinge and could be raised on hinges when it was necessary to use the elevator. The elevator was run by means of ropes, which extended from the basement to the fourth floor and connected with the machinery in the basement for moving the elevator. In order to start the elevator it was necessary to pull down on one of these ropes, which could be reached by a person standing on the floor and extending his arm out into the shaft.

Darcey Smith was the defendant’s foreman, and had employed the plaintiff. Fred Martin was the “straw boss” or assistant foreman, and was likewise the order clerk, and worked on the first and fourth floors. Fred Wagner was the straw cutter, and worked on the second floor, and John Teller was the padder, and worked on the third floor.

The orders were received by the order clerk about nine to half-past nine o’clock every morning. On the morning of the accident there were no unfilled orders left over from the day before. The various employees were engaged in cleaning and straightening the factory preparatory to the business of the day. They went to work at seven o’clock in the morning.

The case made by the plaintiff tends to prove that he went to work as usual about seven o'clock in the morning, and that Smith, the foreman, ordered bim to go to the fourth floor and get two dozen collars and bring them down on the elevator to the first floor; that he carried the collars, six at a time, from the racks on •which they hung, and piled them on the floor close to the elevator shaft; that the bar across the elevator shaft was raised; that he leaned over the shaft and took hold of the rope with both hands so as to bring the elevator up to the fourth floor, the elevator at that time being between the first and second or the second and third floors; that he had to use both hands because he could not start the elevator by pulling on the rope with one hand; that while pulling on the elevator rope, and just after he got the elevator started, he lost his balance and fell; that he struck the elevator, tried to hold to it, failed, and fell through the opening between the floor of the freight elevator and the inelosure around the elevator shaft, and landed in the elevator hole in the basement of the building; that the space between the floor of the elevator and the inclosure of the elevator shaft was large enough for the body of his counsel, Mr. Walsh, a man weighing about two hundred pounds, to pass through; that when he was first employed the then assistant foreman, Mr. Kelley, took him to the fourth floor and instructed him how to run the elevator, and that on several occasions prior to the accident his immediate superior, Martin, had sent him to the fourth floor'to bring collars down on the elevator to the first floor; that on all except one or two occasions when he had been on the fourth floor, the bar at the entrance to the elevator was up and not in place; that on other occasions he had gone to the fourth floor to help clean it up, and that on such occasions he had noticed that the bar was not down or in place. Two other young men, or boys, also testified that while they were working at the defendant’s factory, they saw the plaintiff using the elevator and bringing collars down on it.

The case made by the defendant tends to prove that it was no part of the plaintiff’s duty to bring collars from the fourth floor to the first floor; that Martin had, prior to that time, taken the plaintiff to the fourth floor, using the stairway in so doing, to have him assist in sweeping and cleaning the floor, hnt never for the purpose of assisting in carrying collars; that on several occasions Martin and Wagner and Teller had caught the plaintiff playing on the elevator, and had made him get off of it, and had reported him to the foreman, Smith, who lectured him and told him to keep off of the elevator or he would discharge him; that Smith, Martin, Teller and Wagner were the only persons who were authorized to run the elevator at all, Smith being the general foreman, Martin having charge of the men on the first floor, Wagner on the second, and Teller on the third, and the fourth- floor being used for storing collars; that on the morning of the accident the plaintiff reported for work on the first floor; that there were no orders left over from the night before to be filled; that on the morning of the accident Teller found the elevator at the second floor with a bale of straw on it that had been left there the night before; that he removed the hale, took the elevator to the third floor, put a truck load of sweepings on it, lowered it to the second floor and wheeled the truck to the engine room and then hack to the elevator, and pulled the elevator to the third floor where he turned it over to Martin, who lowered it to the second floor. Martin put some collars on it and lowered it from the second to the first floor. Teller wanted to use the elevator to get a roll of leather from the basement and found it at the first floor with the collars on it. He asked Martin who would help him to unload the collars and Martin said the plaintiff would. Teller looked for the plaintiff and could not find him. Martin, under whom the plaintiff immediately worked, had'not seen him that morning. Wagner, whose place of work was on the second floor within a few feet of the elevator, had not seen plaintiff that morning. Teller lowered the elevator to the basement to get the roll of leather. As he was nearing the. bottom he heard a low cry or moan, which he first thought was a cat, hut when he got near the bottom he heard the moan again, and thinking it was from a human being, stopped and raised the elevator, got off of it and discovered the plaintiff at the bottom of the elevator shaft lying on his face, with a wound in the back of his head, and unconscious.

Neither Smith, Martin, Wagner nor Teller, who were in and around the elevator on the various floors of the bui-lding, had seen plaintiff on the elevator that morning, nor had they heard him fall in the elevator shaft. Smith had seen the plaintiff when he first reported for work that morning, but said that he did not order the plaintiff to go to the fourth floor for the collars, and that it was no part of the plaintiff’s duty to use the elevator, and that there were no orders left over from the night before, and the orders for the day had not then been received. Ted Noland, another employee, testified that he returned to the building about half-past seven o ’clock with some meat for the cat, and found the plaintiff at work at his place in the front of the store, and asked him where the cat was and he told him; that as he went to the back of the store to go upstairs, the plaintiff accompanied him as far as the elevator, where he left him, and that when he got up to the top of the stairs Martin asked him about the plaintiff. On the objection of the plaintiff, Noland was not permitted to say what answer he made or what information he gave Martin about the plaintiff. Munsell, another employee, testified that he arrived at the office late that morning and saw the plaintiff at his place on the first floor, about half-past seven o’clock; that within a few minutes thereafter he learned of the accident to the plaintiff.

None of the employees of the defendant, who were called as witnesses, saw the elevator on the fourth floor that morning. On the contrary, those who were called testified that it was in constant use on the third, second and first floors of the building from seven o’clock until the time of the accident, by Martin, Wagner and Teller. The defendant further showed that the crossbar at the front of the elevator on the fourth floor was systematically kept closed, and that the foreman inspected it at least once every day to see that such was the case. Immediately after the accident an examination was made and it was found that the said crossbar was down and in its place covering the opening to the elevator shaft and that no one else had been on the fourth floor that morning between the time the plaintiff says he was sent there and the time when he was discovered in the elevator shaft in the basement.

The plaintiff testified that there was no one present when Smith, the foreman, gave him the order to go to the fourth floor and bring down the collars. The foreman Smith testified that he gave no such order to the plaintiff. The plaintiff further testified that Smith and Martin, the assistant foreman, had frequently sent him to the fourth floor for collars previously, but they both denied having done so. The plaintiff also testified that the foreman, Smith, as well as Kelley, had taken him to the fourth floor and instructed him how to run the elevator. The foreman, Smith, denied that any such thing had occurred. Kelley was no longer in the employ of the defendant and was not a witness. The plaintiff testified that other boys had also used the elevator. This was also denied by-the other employees of the defendant. The defendant introduced testimony showing that by actual measurement the space between the floor of the elevator and the inclosure of the elevator shaft was twelve and three-quarters inches. Over the objection of the defendant, the plaintiff was permitted to introduce in evidence the American Experience Tables of Mortality, and this is assigned as error. The plaintiff denied that he had ever played with the elevator, or been caught playing with it, or that he had been reported to the foreman therefor, or that the foreman had reprimanded him for so doing.

At the close of the plaintiff’s case, and again at the close of the whole case, the defendant demurred' to the evidence, the court overruled the demurrers and the defendant excepted.

I.

The first error assigned is the ruling of the trial court in overruling the demurrers to the evidence.

This is an action under section 6435, article 17, chapter 91, Revised Statutes 1899, relating to factory inspection in cities of over 5,000 inhabitants. That section provides as follows: “The openings of all hatchways, elevators and well-holes upon every floor of every manufacturing, mechanical or mercantile or public building in this State, shall be protected by good and sufficient trapdoors or self-closing hatches or safety catches, or strong guard-rails at least three feet high, and all due diligence shall be used to keep such trapdoors closed at all times, except when in actual use by the occupant of the building having the use and control of the same.”

The petition is bottomed on this section of the statute, describes the defendant’s place of business as a manufacturing, mechanical and mercantile plant, and charges the negligence of the defendant to be a failure to protect the hatchway by good and sufficient trapdoors or self-closing hatches or safety catches or strong guard-rails at least three feet high.

The theory upon which the plaintiff tried the case and upon which the plaintiff’s instructions are based, is that the defendant did not use ‘ all due diligence” to keep the guard-rail closed when the elevator was not in actual use, using the exact language of the statute, “all due diligence,” and by instruction three declaring that that term meant, such care and caution as reasonably prudent persons would exercise under the same or similar circumstances.

Section 6435, upon which this action is based, is section five of the Act of 1891 (Laws 1891, p. 159) the title to which is, “An act relating to manufacturing, mechanical, mercantile and other establishments and places, and the employment, safety, health and work hours of employees.”

The language of the section, together with the context and the other accompanying provisions of the act, clearly demonstrates that the lawmakers had in mind provisions for the safety of the employees in large factories, and that the section here involved was intended to provide that elevator shafts should be closed on every floor of the building while the elevator was not in use, so as to prevent persons working around the same in the factory from falling into such elevator shafts. It was not the purpose of the framers of the section to prescribe such precautions in order to protect the person whose duty it was to operate or run the elevator, while so doing. The statute leaves the duty of the master to the servant employed to operate the elevator the same as it was at common law. The section of the statute, upon which this action is predicated, does not attempt to create any new right or duty between the employer and the servant with respect to the operation of the elevator. This case is, therefore, wholly unlike the case of Wendler v. People’s House Furnishing Co., 165 Mo. 527, which arose under an ordinance of the city of St. Louis, and where the plaintiff was not engaged in the operation of the elevator.

As was said by Gantt, J., in Lore v. American Mfg. Co., 160 Mo. 621, in speaking of an action under this statute, where it was claimed that the action was not based on the statute: “It is true the pleader does not refer in express terms to the title of the act or aver that the failure of the defendant to safeguard its jute machine was a violation of said act, but this is not at all necessary. It is sufficient when the law, as it is in this case, is a public act, to state the facts which bring his case clearly within the law, and this he has done.”

The plaintiff in this case, both by his petition and Ms instructions, has attempted to bring this case within the provisions of the statute, using the very terms of the statute in describing the negligence of the defendant. But as above pointed out this section of the statute has no application to a case of this character, and if the petition had been attacked by a general demurrer it should have been held insufficient.

The defendant, however, tried the case upon the theory of non-liability, because the elevator was actually in use at the time the plaintiff was injured. There is no testimony in the case on plaintiff’s behalf hearing upon the actual use of the elevator at said time except the testimony of the plaintiff himself, who said that he was directed to go to the fourth floor, get two dozen collars, put them on the elevator and bring them to the first floor; that he saw that the crossbar at the front of the elevator was open; that for the purpose of executing his order and of bringing the elevator to the fourth floor in order to put the collars on it, he stood by the open hatchway, reached out with both hands, took hold of the rope that started the elevator, got the elevator stated on its upward course, and just as he had done so he lost his balance and fell. Upon this undisputed testimony the defendant contends that the plaintiff stated no case under the statute, because the elevator was in actual use on the fourth floor at the time of the accident, and the statute exempts the owner from using “all due diligence” to keep the trapdoors, self-closing hatches, safety catches or strong guard-rails at least three feet high, closed, when the elevator is in actual use.

If the statute applied to a case of this character this objection would be fatal to the plaintiff’s case, under the undisputed facts of the case stated by the plaintiff himself. To avoid these consequences the plaintiff contends that no express reference to the statute is contained in the petition, but that, “where the action is based on facts constituting a cause of action at common law, plaintiff is not confined to the statute or ordinances in making his case. ’ ’ And that, ‘ ‘ this statute was enacted for the benefit of the employee and no construction should be put upon it which would destroy any right which plaintiff would have had at common law.” And counsel cite cases which, without careful discrimination, give color to this contention, but in Hogan v. Railroad, 150 Mo. 36, where the action was predicated upon the violation of a speed ordinance, and where the testimony failed to make out such a case, it was held that the plaintiff could not be heard under such a petition to rely upon common-law negligence; and this is the logical and common-sense view to take.

This case was tried by the plaintiff in the lower court upon a petition and instruction which predicated a right of recovery under the statute, and the plaintiff cannot now be heard to claim a right to recover as for common-law negligence. A statute may or may not destroy a common-law right, and will not be construed to destroy such a right, unless the intention of the Legislature clearly appears to have been to produce such a result. But this rule of construction cannot be invoked by one who predicates a right of recovery upon the stat-, ute, and who does not invoke the aid of the common law. And such is this' case.

II.

But assuming for the purpose of argument, that the statute was intended for the protection of operatives of elevators, then the defendant’s objection, that under the very terms of the statute the defendant is not liable in this case under the facts proved, must be sustained. If, as the plaintiff says, the elevator was in actual use at the time he received the injury, the case falls within the exception specified in the act. The plaintiff testified that he had been instructed in the use of the elevator by both Smith, the foreman, and Kelley, the former assistant foreman, and that while instructing him the crossbar at the front of the elevator on the fourth floor was open. He further testified that it was a part of his duty to go to the fourth floor, get collars, put them on the elevator and carry them to the first floor, and that he had done so many times. His testimony in all these particulars was flatly contradicted by the foreman, Smith, and by all the other servants and agents of the defendant with whom the plaintiff worked, and it was shown by all the other witnesses that it was no part of the plaintiff’s duty so to do, but that when he had been caught playing on the elevator he had been made to get off of it, had been reported to the foreman and had been reprimanded by the foreman and ordered never to get on the elevator again. But assuming that the jury were justified in believing the testimony of the plaintiff, and in discrediting that of all the other witnesses in the case, the fact still remains that, according to the plaintiff’s own testimony, his duty and instructions required him to use the elevator in the exact manner he says he did on this occasion, and to start it while the crossbar was up, out of place. As improbable as such testimony undoubtedly is, the plaintiff was entitled to have the full benefit of it for all it was worth; but giving it its full weight and force, it does not entitle the plaintiff to recover in this form of action, because the statute has conferred no right of recovery under such circumstances, but on the contrary, exempts the defendant from liability because the elevator was in actual use on the fourth floor at the time of the accident.

This argument, however, only accentuates what has been said with reference to the object and meaning of the section of the statute quoted, and the more clearly demonstrates that that section was never intended to afford a right of recovery under circumstances such as are disclosed in this case.

The learning and diligence and skill of counsel have exhaustively covered other features of this case, notably the questions of contributory negligence and assumption of risks, and the eight instructions given for the plaintiff, the eight given for the defendant, the five asked by the defendant and modified and given by the court, and the eight asked by the defendant and refused by the court, have stated the law in all of its phases upon these propositions, but under the view here taken it is not necessary to prolong this discussion by an examination of the various errors assigned, for the reason that, after all, the plaintiff’s right of recovery depends upon the construction of the statute, and the plaintiff has failed to bring himself within the provisions of the statute. Whether or not the plaintiff would be entitled to recover as for common-law negligence is not a legitimate subject of discussion or determination in this case.

For the foregoing reasons the judgment of the circuit court is reversed.

All concur, except Vallianl, J.} who dissents.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    EX PARTE EDWARD BERGER.
    In Banc,

      January 23, 1906.
    1. INTEREST: Criminal Statute: Constitutional. Tile statute which, makes it a misdemeanor to charge a greater rate of interest than two per cent per month, is constitutional. It is within the power of the Legislature to make usury a crime and punish it as such.
    2. LEGISLATIVE POWER: Extent of. While the Constitution does not define leglislative power, yet, generally speaking, the Constitution, in vesting the legislative power in the General Assembly, subject to the limitations therein contained, empowered the General Assembly to enact any law necessary to the welfare of the people not prohibited by the Constitution of the United States or the Constitution of the State.
    3. -: Usury: Public Policy: Enforcement of Interest Laws. Laws against usury are founded on principles of public policy, principles that have for ages been recognized, and a law which makes the charging of a rate of interest in excess of two per cent a month, a misdemeanor seeks only to punish that which for ages has been considered unlawful within itself. It is within the power of the Legislature to fix the maximum rate of interest for the use of money, and to enforce obedience to such law either by forfeiture of the interest or principal, or by making the usury a misdemeanor punishable as a crime.
    4. -: What Usury Criminal: Grading the Offense: Constitutional Rights. It was competent for the Legislature to determine the taking of what usurious interest should constitute a criminal offense. It had the power to declare that the charging of more than eight per cent annual interest should be usury, and to make it a criminal offense to charge more than two per cent a month, and to provide no punishment except forfeiture for those who charge less than two per cent a month but more than eight per cent per annum. And in doing so, it did not violate the constitutional provision which prohibits a State from “denying to any person within its jurisdiction the equal protection of the laws,” nor the other provision which prohibits the Legislature from passing any special law granting to “any corporation, association or individual any special or exclusive right, privilege or immunity,” for the statute making it a crime to charge more than two per cent per month is a general law, applicable to all persons who violate it.
    5. -: -: Raised by Accused. It does not lie in the mouth of one guilty of violating a general law to say that there are other classes of like offenders to which the law might have been applied.
    6. USURY: Criminal Statute: Applicable to all Persons: Commissions: Ejusdem Generis. The statute which declares that “every person, company, corporation or firm, who shall take or receive, directly or indirectly, by means of commissions or brokerage charges, or otherwise,” any rate of interest in excess of two per cent a month, shall be guilty of a misdemeanor, applies to every person who takes any interest, directly or indirectly, by means of commissions or brokerage charges or otherwise in excess of two per cent per month. The words “commissions or brokerage charges, or otherwise,’ do not, according to the rule of ejusdem generis, mean to limit the .act to persons who receive interest by means of commissions or brokerage charges, but the statute applies to all persons who charge interest of more than two per cent per month, whether the charge is directly as interest, or indirectly as commissions or brokerage charges.
    Habeas Corpus.
    Petitioner remanded.

      Kinealy é Kmealy for petitioner.
    (1) Section 2358 is unconstitutional (Const. U. S. amend. 14, sec. 1; Const. Mo. art. 2, sec. 30), because it denounces and punishes as a crime the doing of an act which it is not within the power of the Legislature to so denounce and punish, and it thereby deprives petitioner of his liberty without due process of law. This conclusion results from a consideration of the following propositions, viz.: (a). Courts will never enforce void contracts, but they will voidable ones. Och v. Railroad, 130 Mo. 27; Mitchell v. Parker, 25 Mo. 31; Ins. Co. v. Railroad, 74 Mo. App. 89. (b) Usurious contracts are not void, but only voidable. Montany v. Rack, 10 Mo. 318; Ferguson v. Soden, 111 Mo. 208; Davis v. Tandy, 107 Mo. App. 437; Smith v. Mohr, 64 Mo. App. 39; Johnson v. Simmons, 61 Mo. App. 395; Am. Rubber Co. v. Wilson, 55 Mo. App. 656. (c) Courts will not enforce contracts which are contrary to our laws or public policy. McDearmott v. Sedgwick, 140 Mo. 172; 15 Am. and Eng. Ency. Law (2 Ed.), 935; McGinnis v. Mo. C. So F. Co., 174 Mo. 225; Guerney v. Moore, 131 Mo. 650. (d) Foreign contracts, if legal in their domicile, will be enforced in Missouri, although usurious under our laws. Bank v. Cooper, 85 Mo. App. 383; Land Co-, v. Rhodes, 54 Mo. App. 129. There is no iniquity or moral turpitude in usury. Bank v. Harrison, 57 Mo. 503; Adler Co. v. Corl, 155 Mo. 149; Webb on Usury, sec. 488, p. 570. (e) The Legislature cannot arbitrarily declare an act a crime if it really be not such, and such an enactment will be declared unconstitutional by the courts. State v. Layton, 160 Mo. 474; In re Flukes, 157 Mo. 125. (f) A crime is a wrong against the public at large, and the power to declare a given act a crime proceeds from the exercise of the police power of the State. 12 Cyc. Law & Proced., 129'; 8 Am. and Eng. Ency. Law (2 Ed.), 248; 1 Tiedeman, State So Fed. Control of Pers. So Prop., p. 179; Clark’s Crim. Law, p. 1; United States v. Eaton, 144 U. S. 677; Const, of Mo., art. 6, sec. 38; Gillespie v. People, 188 111. 176; Black v. Schwartz, 27 Utah 387. (g) An act which is essentially a wrong against the individual can never be punished as a crime if done with the consent of the individual. State v. West, 157 Mo. 309; 1 Wharton’s Crim. Law, secs. 141 and 143; Desty’s Crim. Law, sec. 33. (2) Section 2358 is unconstitutional (Const. U. S., amend. 14, sec. 1; Const, of Mo., art 4, sec. 53.), because it is a special law granting special privileges and immunities, and denies to petitioner the equal protection of the law. Howell v. Stewart, 54 Mo. 400; State v. Walsh, 136 Mo. 400; State v. Thomas, 138 Mo. 95; State ex rel. v. Miller, 100 Mo. 439; Dunne v. Railroad, 131 Mo. 1.

      Reecl, Tates, Mastín & Howell also for petitioner.
    Two points are made by the petitioner in his brief as to the constitutionality of the statute under which petitioner was arrested: 1. The section is unconstitutional because it punishes as a crime the doing of an act which it is not within the power of the Legilature to so punish, and thereby deprives petitioner of his liberty without due process of law. 2. The statute is unconstitutional because it is a special law, granting special privileges and immunities and denies to petitioner the equal protection of the law. In support of petitioner’s second point, we desire to suggest to the court that in addition to the classification of the persons by petitioner into those who take or receive or agree to take or receive usurious interest at a rate greater than two per cent per month, and at a rate less than two per cent per month under the statute, there is another distinctive class aimed at by the statute, and as it appears to us the only class contemplated by the statute, namely, those who shall take or receive or agree to take or receive directly or indirectly by means of commissions or brokerage charges or otherwise, any interest at a greater rate than two per cent per month, etc. A comparison of other usury sections of the statute of Missouri and the statutes of other States show that the words “directly and indirectly” in usury statutes are in common use without language explaining or defining their meaning. Sec. 1, ch. 133, Laws 1889, South Dakota; sec. 1, chi 63; Bank v. Allen, 28 Conn. 101. The Missouri statutes applicable to the subject are as follows: secs. 1934, 2358, 3708, 3709, R. S. 1899. In al'1 the statutes and cases in construction thereof, the words “directly or indirectly” have been deemed sufficient to cover every device invented for the purpose of charging interest, and the words used by section 2358, “by means of commissions or brokerage charges,” are evidently designed as words of limitation. In sections 1934 and 3708, Revised Statutes 1899, the words “directly or indirectly” without more are used. It cannot be contended that these statutes would not cover an indirect charge of interest by means of brokerage and commissions — therefore, the conclusion from an examination of these sections is that the qualifying words used in section 2358 “by means of commissions or brokerage charges,” etc., were designed for the purpose of limiting the effect of the statute to those words. In section 3709, the words ‘ ‘ directly or indirectly” are omitted, and in that section the words are added, “whether paid as commission or brokerage, or as payment upon the principal, or as interest on said indebtness.” Any other construction of this statute would leave the words, “by means of commissions or brokerage charges, ’ ’ wholly without meaning or purpose in the statute, and the words are intended to define the kind of illegal charge of interest aimed at by the statute. It is a common canon of construction that all the words of a statute must be construed in such way as to give them effect if possible, and in connection with the words that accompany them. State v.Gilmore, 98 Mo. 206; State v. Hays, 78 Mo. 600v It will be observed that the act does not make it an offense to' ‘ ‘ directly or indirectly” take or receive or agree to take or receive, for the forbearance or use of money, any interest at a rate greater than two per cent, but the offense consists in taking, etc., suck interest “by means of commissions or brokerage charges or otherwise,” thus placing outside the ban of the statute all of those usurers who take such interest by other or different methods. Inasmuch as the words “or otherwise,” under the well-established rule of statutory, construction ejusdem generis, can apply only to methods similar to those enumerated, it is clear that those affected by the act are only those who exact interest by way of commissions, or brokerage charges. That the words “or otherwise” can have no more extended meaning is clear from our Missouri authorities. State v. Schuchman, 133 Mo. 116; State v. Krueger, 134 Mo. 263; State v. Edwards, 109 Mo. 320; State v. Gilmore, 98 Mo. 213. This being true, the statute leaves all persons free to receve or agree to receive usury in excess of two per cent per month, if haply they can invent some means of providing for its payment other than by way of commissions or brokerage charges. If it be said that section 2358 is susceptible of another construction if the punctuation be changed from that used by the Legislature, we reply that the punctuation is a part of the act, and the act being penal in its nature, a defendant is not to be punished by having resort to this necessity. U. S. v. Voorhees, 9 Fed. 143; U. S. v. Pelletran, 14 Blatchf. (U. S.) 126; Tyrrell v. New York, 159 N. Y. 242; Commissioners v. Elwood, 193 111. 308.

      Herbert 8. Hadley} Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
    (1) In the exercise of its police power, the State may enact any law that is designed to suppress or punish a wrong, to mitigate an evil, to prevent extortion or oppression, or which tends to preserve the general welfare of the community. No person has an absolute right to engage in any business which contravenes these purposes. State ex rel. v. Mercantile Co., 184 Mo. 160; State ex rel. v. Associated Press, 159 Mo. 437; Westport v. Mulholland, 159 Mo. 86; State v. Whitaker, 160 Mo. 59; State Layton, 160 Mo. 474; State v. Searcy, 20 Mo. 489; State ex rel. v. Ashbrook, 154 Mo. 375; State v. Thompson, 160 Mo. 333; St. Louis v. McCann, 157 Mo. 301; State v. Bixman, 162 Mo. 1; State v. Cantwell, 179 Mo. 245; State v. Loomis, 115 Mo. 307; State ex rel. v. Firemen’s Fund Ins. Co., 152 Mo. 1; State v. Adding-ton, 12 Mo. App. 214; Morrison v. Morey, 146 Mo. 543; Durant v. Coal Co., 97 Mo. 65; Humes v. Railroad, 82 Mo. 231; Cofer v. Riseling, 153 Mo. 633; Kreibohm v. Yancey, 154 Mo. 67; State v. Harney, 168 Mo. 167; St. Louis v. Galt, 179 Mo. 8; State v. Loomis, 20 S. W. 332. (2) A statute which relates to persons or things as a class is a general law, while a statute relating to particular persons or things of a class is a special law. If every person within the operation of the act is affected generally by the act, it is a general, not a special law. Phillips v. Railroad, 86 Mo. 540; State ex rel. v. Tolle, 71 Mo. 654; Ewing v. Hoblitzelle, 85 Mo. 64; State ex rel. v. Miller, 100 Mo. 439; Lynch v. Murphy, 119 Mo, 163; State v. Bishop, 128 Mo. 373; State ex rel. v. Yancey, 123 Mo. 391; State ex rel. v. Ins. Co., 150 Mo. 113; Holden v. Hardy, 169 U. S. 394; State ex rel. v. Wofford, 121 Mo. 61; State ex rel. v. Marion Co., 128 Mo. 427; Hamman v. Central Coal Co., 156 Mo. 232; State ex rel. v. Firemen’s Fund Ins. Co., 152 Mo. 1; Ex parte Loving, 178 Mo. 194; State ex rel. v. Wasbum, 167 Mo. .680. (3) Missouri courts have recognized the right of the Legislature to regulate the interest on money, and to fix penalties for exacting more than the law, provides. Such laws are constitutional. Mitchell v. Griffith, 22 Mo. 515; Hilgert v. Levin, 72 Mo. App. 48; Deane v. Howser, 83 Mo. App. 609; Arbuthnot v.Brookfield L. & B. Ass’n, 98 Mo. App. 383; McDonnell v. DeSoto Sav. Ass’n, 175 Mo. 250; Ferguson v. So den, 111 Mo. 208; Adler Clothing Co. v. Corl, 155 Mo. 149; Kreibohm v. Yancey, 154 Mo. 67. (4) The Legislature has the power to pass any law not prohibited by the Constitution. Ex parte Roberts, 166 Mo. 212; Morrow v. Kansas City, 186 Mo. 675. (5) In the supplemental brief filed by counsel for petitioner, it is contended that the words, “by means of .commissions or brokerage charges,” following the words, “directly or indirectly,” are designed as words of limitation. The whole clause should be read together, and when so read, the intention is plainly manifested to cover the exaction of usurious interest, which is “direct;” or the exaction of commissions or brokerage charges, which would be indirect. This is plain enough, but to relieve the matter of all doubt, the words “or otherwise” are inserted after the words “by means of commissions or brokerage charges.” The catch words at the beginning of the section read as follows: “Receiving greater interest than two per cent per month, etc.” These words were not incorporated in the original act as it passed the Legislature and as it appears in the Laws of 1899, but in that act words of a similar import were used, as follows: “Interest in excess of two per cent per month, usurious — penalty.” The act itself is entitled, “An act to prevent the taking of more than two per cent per month interest on the forbearance or use of money or other commodity, making the violation thereof a misdemeanor, and prescribing the penalty therefor.” Laws 1899, p. 167. If that canon of construction, that all words of a statute must be construed in such a way as to give them effect, invoked by the petitioner, is applied here, it will justify, not the confined and limited interpretation he asks for, but will support and sustain a construction which will prohibit all ex-actions, whether in the nature of commissions, or classified as direct interest. (6) All laws are presumed to be constitutional, and will be so declared, unless their unconstitutionality appears beyond a reasonable doubt. State v. Thompson, 144 Mo. 314; State ex reí. v. Aloe, 152 Mo. 466; State ex rel. v. Pike Co., 144 Mo-. 275; Ex parte Loving, 178 Mo. 194; State v. Etchman, 189 Mo. 648.
   GANTT, J.

— This is an original proceeding by habeas corpus for the release of the petitioner on the ground that section 2358, Revised Statutes 1899, is unconstitutional, and his arrest for violation thereof, therefore, is without any legal authority or justification.

The petitioner was arrested by the constable of Central township, St. Louis county, under and by virtue of a warrant issued by I. W. Campbell, a justice of the peace within and for said township, upon an information filed before said justice of the peace by the prosecuting attorney of said county on the 11th of September, 1905, and was in the custody of said constable at the time the application for this writ was made and issued, and is now under bail awaiting the action of this court upon his application. The information upon which he was arrested charges that the petitioner on the 22nd day of August, 1905, in said St. Louis county, did then and there receive from one Frank T. Henry, interest at a greater rate then two per cent per month, for the use of one hundred dollars, loaned by the petitioner to said Henry on the 19th of July, 1905, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State.

Section 2358, Revised Statutes 1899, is in these words:

“Sec. 2358. Receiving greater mterest than two per cent per month, etc. — misdemeanor, when — penalty. —Every person or persons, company, corporation or firm . . . who shall take or receive, directly or indirectly, by means of commissions or brokerage charges, or otherwise, for the forebearance or use of money or other commodities, any interest at a rate greater than two per cent per month, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, and by imprisonment in. the county jail for a period of not less than thirty days nor more than ninety days. ' Nothing herein contained shall be construed as authorizing a higher rate of interest than is now provided by law.” ■

The constitutionality of this section is challenged on four grounds: -First, that it is in violation of section 1 of article 14 of the amendments of the Constitution of the United States which prohibits any State from depriving “any person of life, liberty or property without due process of law. ’ ’ Second, because it violates section 30 of article 2 of the Constitution of the State of Missouri which provides “that no person shall be deprived of life, liberty or property without due process of law. ’ ’ Third, because it is a violation of that portion of section 1 of article 14, of the amendments to the Constitution of the United States which prohibits “any State from denying to any person within its jurisdiction the equal protection of the laws.” Fourth, because it violates section 53 of article 4 of the Constitution of the State of Missouri which prohibits the Legislature from “passing any special law granting to any corporation, assocation or individual any special-or exclusive right, privilege or immunity.”

I. Prior to the enactment of section 2358 on the 14th of April, 1899, the taking of usurious interest had never been declared a criminal offense by the General Assembly of the State of Missouri, and it is now earnestly insisted by learned counsel for petitioner that this section is unconstitutional, because it is not within the power of the Legislature to make usury a crime and punish it as such.

This is a far-reaching proposition. The Constitution of this State ordains that the legislative power,’subject to the limitations therein contained, shall be vested in a Senate and House of Representatives to be styled The General Assembly of the State of Missouri. [Art. 4, Constitution of Missouri.] This legislative power is not defined; it is a general grant by the people to enact all laws necessary for the welfare of the people of the State. Generally speaking, the Legislature of this State has the power to enact any law not prohibited by the Constitution of the United States or the Constitution of this State.

With much industry the learned counsel for the petitioner has collated a long line of decisions in this State to the effect that usurious contracts are not void, but voidable, and that courts will not enforce contracts which are contrary to our laws or public policy. These two propositions do not require the citation of any authorities, but they have little or no bearing upon the question raised here, to-wit, that the Legislature has po power to declare the taking of usurious interest a criminal offense. It may be conceded that at common law usury was not an indictable ofifense, yet it is a fact that various acts of the British Parliament made usury a crime and the states of Indiana, Massachusetts, New Hampshire, New York, South Dakota and Tennessee all have statutes making the taking of usurious interest a misdemeanor, and in none of these states have we been able to find that the constitutionality of such legislation has ever been denied. The State, through its Legislature, may enact any law that is designed to suppress or punish a wrong, to mitigate an evil, prevent extortion or oppression. Obviously it is no objection to a criminal statute that the crime denounced was not one indictable at common law, or that it should have been prohibited specifically by some prior statute. If such were the case, then there could be no legislation on the subject of crime, however urgent and flagrant the offense had become in the various changes of society. Dr. Wharton in his Criminal Law (10 Ed.), see 14a, says: “It has been often said that at common law indictability and immorality are convertible terms. So far, however, from this being the case, there are indictable acts which are not immoral, and immoral acts which are not indictable.” At common law illegal acts are often declared misdemeanors without any precedent.

In Kreibohm v. Yancey, 154 Mo. l. c. 83, section 3710, Revised Statutes 1899, was challenged on the ground that it was in conflict with the fourteenth amendment of the Constitution of the United States, and sections 4 and 30 of article 2, and section 33 of article 4, of the Constitution of Missouri. Responding to that contention, this court, through Brags, J., said: “The main argument in support of this contention impugns the constitutionality of usury laws generally, on the ground that such laws are in restraint of the right of contract, and are not a legitimate exercise of the police power. It would serve no good purpose to review this argument at length. The power to regulate the rate of interest has been exercised by every civilized nation, ancient or modern, whose laws survive in history. [Dunham v. Gould, 16 Johnson 367.] In Anglo-Saxon civilization, laws against usury have always been in force. By the Canon law interest and usury were synonymous terms, and it was unlawful to take any money for the use of money, and this law was rigidly enforced by the temporal authorities of Ehgland until the reign of Henry VIII., when the legal right to take interest was first created by act of Parliament (37 Henry VIII., cap. 9), and ever since in England and in this country, this right has existed in legal contemplation as the creature of statutory enactment. As was said by Mr. Justice Field in Munn v. Illinois, 94 U. S. l. c. 153, ‘ The practice of regulating by legislation the interest receivable for the use of money, when considered with reference to its origin, is only an assertion of right of the government to control the extent to which a privilege granted by it may be exercised and enjoyed. ’ It was in this light that the right was regarded in the Colonies when the Federal government was organized and the Constitution adopted. And ever since, the right has been so recognized and exercised by the states severally, in all of which, with perhaps one or two exceptions, statutes have been enacted and are in force regulating the rate’ of interest. [27 Am. and Eng. Ency. of Law, 929, note 2; Tyler on Usury, chap. 3.] And however much these laws may have been criticised and inveighed against by some publicists and text-writers, they have been so uniformly sustained by the courts, that now it is conceded by some of the latest of these writers that their enactment has so long been recognized as a constitutional exercise of legislative authority as to render it very unlikely that the courts will pronounce them unconstitutional. [Tiedeman’s Lim. of Police Power, sec. 94; Cooley’s Prin. Const. Law, p. 235.]”

The taking of interest, then, beyond a legal rate is granted to no person in this State, and the act now before us simply makes the unlawful act of taking interest in excess of two per cent per month a misdemeanor. Laws against usury are founded on principles of public policy, principles that have for ages been recognized, and this act seeks only to punish that which has for many ages been considered unlawful in itself. The right'to regulate interest by legislative enactment being one conceded to be within the power of the Legislature, that body can regulate or prohibit it altogether. And if previous legislation on this subject punishing the infractions of usury laws by forfeitures of the .interest have proved ineffectual to check the evil, it was perfectly competent for the Legislature to adopt more drastic measures and make it criminal. If the Legislature had the power to say what rate of interest in its own opinion'transcended a fair and just remuneration for the loan of money or property, it was competent to make any excess over such rate a misdemeanor. In our opinion it would have been perfectly competent for the Legislature to have made it a misdemeanor to exact and receive interest over and above the legal rate fixed by law, but certainly the act now under review is_not open to the objection of being unreasonable, inasmuch as it only denounces the taking of interest beyond two per cent per month as criminal. Certainly it would seem that two per cent per month would gratify the greed of the most unconscionable usurer, and this act is leveled only at that class who take and receive interest beyond that amount. Responding then to the first contention of the petitioner, we hold that the act was not beyond the legitimate powers of the General Assembly.

It would subserve no good purpose to review all the various distinctions of crime given by the various courts or text-writers from time to time. Under our system of government the people through their Legislatures have the power to define or punish crimes when not restrained by the organic law of the State or the Federal government. It is sometimes announced by some of the courts and some of the ablest law-writers of this country, that no act of the Legislature can be declared void unless it contravenes some specific section or provision of the State or Federal Constitution; on the other hand, it has been held that there are limits beyond which legislation cannot rightfully go, even though the courts may not be able to point to a positive prohibition against it in the Constitution, but this case does not call for any discussion.of that power, holding as we do that it is within the power of the Legislature to fix a maximum rate of interest for the use of money, and we have no doubt of the power of the Legislature to enforce obedience to such a law, whether by forfeitures of the interest or the principal, or by making it a misdemeanor punishable as a crime, and certainly there is nothing in the particular act before us which requires any vindication of the moderation of the Legislature in making the receiving of interest beyond two per cent per month a misdemeanor.

II. It is urged, however, that the act is unconstitutional in that it violates that portion of section one of article 14 of the amendments to the Constitution of the United States, which prohibits any State from denying “to any person within its jurisdiction the equal protection of the laws,” as well also section 53, article 4, of the Constitution of Missouri, which provides that the Legislature shall not pass any special law granting to “any corporation, association or individual any special or exclusive right, privilege or immunity.” To sustain this latter contention it' is urged that our statute relating to interest authorized the taking of certain prescribed rates, the highest being eight per cent per annum, thus money-lenders are divided into two classes, those who receive or agree to receive interest within the statutory provisions, and those who receive or agree to receive amounts in excess of the statutory limit, and it is insisted that section 2358, Revised Statutes 1899, takes this latter natural class and arbitrarily divides it into two sub-classes, to-wit, those who receive or agree to receive interest at the rate of two per cent or less, per month, and those who receive or agree to receive unauthorized interest in excess of that amount, and make criminals of the latter sub-class, but not of the former, and thus the Legislature has been guilty of class legislation. It is the rule of long established construction in this State “that a statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is special.” [State ex rel. v. Tolle, 71 Mo. l. c. 650.] It is insisted that all usurers stand upon exactly the same footing, inasmuch as they are all doing something which the law does not authorize them to do, and that, therefore, it was not competent for the Legislature to select that particular class of usurers who receive or agree to receive interest in excess of the rate of two per cent per month, and exclude those usurers who receive or agree to receive more than eight per cent per year and not over two per cent per month. We cannot agree to this contention. In onr opinion it is perfectly competent for the Legislature to determine for itself what amount of usurious interest, the taking or receiving of which should constitute a criminal offense. It had already provided for the forfeiture and penalties which should attach for the taking of all usurious interest, hut in denouncing for the first time as a crime a class of usurers, it had the power to select that class which takes or receives greater interest than two per cent per month. It did not attempt to affect any other class and it is a general law as far as this class is concerned. The law operates upon every person within the limits of the State who violates it. It does not lie in the mouth of one guilty of transgressing it, to say to the Legislature, there are other classes to which this law might apply. The same could he said of nearly any other criminal statute. Had this law exempted any person who exacted more than two per cent per month hy mere arbitrary provision, there would be force in the argument of counsel, but there is no such exception to be found in the act. It applies to all persons who are in or who may come into like situations and circumstances and is therefore not special or class legislation within the the meaning of either of the constitutional provisions above relied on.

HI. But it is further insisted that the act by its very terms excludes all usurious interest except such as is taken “by means of commissions or brokerage charges,” and when thus read is clearly unconstitutional, because the equal protection of the law is not granted to. all persons by this act, because it attempts another arbitrary distinction, in this, that its provisions are plainly leveled only at that class of usurers who charge more than two per cent per month directly or indirectly, “by means of commissions or brokerage charges or otherwise,” thus excluding all other classes who receive or agree to receive such usury directly or by any other method than by means of commissions or brokerage charges. In aid of this construction the rule is invoked that in the interpretation of a statute every word and clause should, if possible, have assigned to it a meaning, leaving no useless words, and it is insisted that the clause “or otherwise” under the well-established rule of statutory construction of ejusdem generis can apply only to methods similar to those enumerated and, therefore, the act applies only to those who exact interest “by way of commissions or brokerage charges,” and not to the receiving of interest directly or indirectly. The canon of construction that all the words of the statute must be construed in such a way as to give them effect does not justify the confined and limited interpretation which counsel for petitioner would place upon the act, but will support a construction which prohibits all exactions of interest directly or indirectly by means of commissions or brokerage charges or otherwise at a greater rate than two per cent per month. We have no doubt whatever, when the whole act is read together, that it was the intention of the Legislature that it should apply to every person who should take any interest directly or indirectly by means of commissions or brokerage charges or otherwise in excess of a rate of two per cent per month, and, after all, the purpose of all rules of construction is to arrive at the intent of the lawmaking power. The whole section when read together manifests an intention to cover the exaction of usurious interest which is direct and also an exaction of usurious interest of more than two per cent per month by means of commissions or brokerage charges, and hence this third constitutional objection to the act based upon verbal criticism is without foundation.

It results that in our opinion the law assailed in this case is a perfectly constitutional enactment and that the petitioner was in lawful custody at the time of his application to this court for a writ of habeas corpus, and it is therefore ordered that the prisoner be and he is hereby remanded to the custody of the constable, and that he pay all the costs of this application.

All concur.


text:
    THE STATE ex rel. JACKSON v. BRADLEY, Judge.
    In Banc,
    January 23, 1906.
    1. JURISDICTION: Defendants. Section 562, Revised Statutes 1899, stating -where actions must be begun and referring to “defendants,” must be read in connection with section 539, Revised Statutes 1899, which denominates the parties to an action by referring to plaintiff as the complaining party, and to the defendant as the “adverse” party.
    2. -: -: Motion to Dismiss: Admission. The petition in prohibition, brought to restrain a circuit judge from assuming jurisdiction in a certain cause against defendant, on the ground that the petitioner was not a resident of the county where the suit was brought, charged that the only other defendant in that suit was joined as such for the purpose of attempting to give jurisdiction to the circuit court there. Held, that respondent’s motion to dismiss admits that charge.
    3. -: -: Adverse Party. A defendant joined as such for the sole purpose of giving jurisdiction to the circuit court over other defendants, is not an adverse party, and jurisdiction cannot be obtained that way.
    4. -: -: -: Apparent From Petition. Where one of the defendants is not an adverse party to plaintiff, and not a necessary party to the determination of the suit, and no judgment is asked against him and nothing is stated in the petition which would authorize any judgment against him, the court does not, by his being joined as a defendant, get jurisdiction over the other defendant who does not reside in the county.
    5. -: -: -: Case Stated. The petitioner, an attorney residing in St. Louis, brought a suit for merchants for damages against a corporation. The suit was tried in Johnson county, and two attorneys residing there assisted in the trial, which resulted in a judgment for plaintiffs. Afterwards petitioner collected a fee of $17,548.10, and one of the Johnson county attorneys brought suit there against petitioner and the other local attorney for one-fourth of the amount, alleging that the other local attorney was entitled to another fourth, but refusing to join as plaintiff had been made a defendant. Held, that the right of either local attorney to recover is in nowise dependent on the right of the other, and the local attorney made a defendant was not an adverse party, and the court acquired no jurisdiction over petitioner.
    6. —:-: -: Trust: Accounting. Nor is such suit one in equity to enforce a trust, nor is an accounting necessary to ascertain the interest in the fee of either of the local attorneys. Each claims one-fourth of the fee already paid, a definite sum, and each has a full, complete and adequate remedy at law.
    Prohibition.
    Rule made absolute.

      John E. McKeighan and Jos. S. Laurie for relator.
    (1) The circuit court of Johnson county did not acquire jurisdiction over Jackson by service of summons issued to and served in the city of St. Louis. Although Suddath was named as a defendant, there was no joint liability by him and Jackson. In such case, section 562, Revised Statutes, relied on, does not apply. Graham v. Ringo, 67 Mo. 324; Haseltine v.' Messmore, 184 Mo. 314. It clearly appears from the petition that Suddath and Jackson are not jointly liable to Ilouts, and there was therefore no authority for serving Jackson with process in St. Louis. (2) The case of Houts v. Jackson and Suddath is not within the scope of sec. 562, Revised Statutes 1899, because Suddath is not a “defendant” in the meaning of the statute. Section 539 prescribes who is a defendant in the practice in this State — that is, “the adverse party” to the plaintiff. Since Suddath is not a party adverse to Ilouts, the suit could not be instituted in Johnson county and jurisdiction acquired over Jackson by service in St. Louis. 22 Ency. of PI. and Pr., 800, note; Allen v. Miller, 11 Ohio St. 378; Thompson v. Massie, 41 Ohio St. 307; Barry v. Wachosky, 57 Neb. 534. (3) That one may be joined as a plaintiff does not authorize the making him a defendant, if he refuses to join as plaintiff. The statute requires that he should be a necessary plaintiff before his refusal to act as such permits his being named a defendant. Sec. 544, R. S. 1899; Bliss on Code Pleading, sec. 61; McNear v. Williamson, 166 Mo. 369. Houts and Suddath, claiming distinct sums of money (although the same in amount), under separate employments, had no such joint interest as required them to sue jointly. 15 Ency. of PL and Pr., 735 ; 16 Ency. Law and Pro., 182, 183, 184. (4) The proceeding in Johnson county is not a suit in equity, and cannot be maintained as such, because from the face of the petition it appears thát Houts has a complete and adequate remedy at law, on his alleged cause of action. An action for money had and received, or in assumpsit on a promise for the benefit of another, is perfect remedy on the allegations of the petition. Equity will not entertain a case where a party seeks to recover an aliquot part of a fund, even though the fund is held in trust. 15 Ency. Pl. and Pr., 658; 22 Ibid, 100'. Although a case may nominally fall under one of the heads of equity jurisdiction, still if there is an adequate remedy at law a suit in equity cannot be maintained. 1 Pomeroy’s Eq., sec. 178 and notes; 22 Ency. PI. and Pr., 12; Cane v. Bloodgood, 7 Johns. Ch: 90; Benton Co. v. Morgan, 163 Mo. 677; Gaines v. Miller, 111 U. S. 395; Buzard v. Houston, 119 U. S. 341; Patón v. Major, 46 Fed. 210; Loan Assn. v. Buchanan, 66 Fed. 801. (5) The joining of Suddath as a defendant was a subterfuge for the purpose of acquiring jurisdiction in Johnson county over Jackson, a resident of St. Louis. This stands admitted by the pleadings, and is a practice which will not be tolerated by the courts. Bank v. Knox, 47 Mo. 333; Byler v. Jones, 79 Mo. 261; Diffenderffer v. Rowden, 83 Mo. App. 268.

      O. L. Houts, for respondent.
    (1) Under the allegations of the petition the amount due each, Jackson, Suddath and Houts, is dependent upon proof of matters of fact and calculation and can he determined only by an accounting in which all are parties. Under the allegations of the petition Jackson, Suddath and Houts all had an undivided, unascertained interest in this balance in the hands of Jackson, and he holds it as trustee for himself and them. Houts therefore properly sued in equity for an accounting, and made Jackson and Suddath defendants. R. S. 1899, sec. 543; Carr v. Waldron, 44 Mo. 393; Dillon v. Bates, 39 Mo. 292; Harrison v. Murphy, 106 Mo. App. 465; Frost v. Bedford, 54 Mo. App. 353; Wolff v. Ward, 104 Mo. 155; Gartside v. Gartside, 113 Mo. 358; Goodwin v. Goodwin, 69 Mo. 617; Roselle v. Bank, ■ 119 Mo. 84; Reilley v. Cullen, 159 Mo. 322; Roselle v. Beckemeir, 134 Mo. 391. It is so held by the United States Courts: McKey v. Lamon, 159 U. S. 317; Minnesota v. Northern Securities Co., 184 U. S. 199; Belding v. Gains, 37 Fed. 817; Ins. Co. v. Svendson, 74 Fed. 736; Jessup v. Railroad, 36 Fed. 736. The rule is fundamental and prevails everywhere. 16 Cyc., p. 181; 15 Enc. Plead, and Prac., 672-3-4, 735-736-614; Husted v. Thompson, 158 N. Y. 328; Bundy v. McClain, 104 Wis. 363; Bue v. Mechanics Bldg A'ss’n, 74 N. G. 17; Bank v. Gardner* 3 Gray (Mass.) 304; Perry on Trusts, p. 843; Hill on Trusts, pp. 518-847; Jones on Mortgages, sec. 1369; Adams’ Equity (8 Ed.), 314; 1 Pomeroy’s E'q. Jur. (2 Ed.), sec. 114. (2) Suddath was properly and necessarily made a defendant with Jackson in the action by 'Houts, because their interests in the trust were and are unascertained, and an accounting was necessary. Suddath and Houts were and are alike interested in having Jackson declared a trustee, but then and there the indentity of the interests of Suddath and Houts ceases. Houts seeks to recover for himself, and not for himself and Suddath jointly, his reasonable fee for the services rendered. When Jackson is declared a trustee, the interests of Suddath and Houts become adverse, because each claims for himself an unascertained interest in the same trust fund. ’ Jackson cannot, therefore, deprive the circuit court of Johnson county of jurisdiction of the case of Houts v. Jackson and Suddath by this writ or by asserting that Suddath should have been made plaintiff instead of defendant. And making Suddath a defendant in the action did not amount to collusion for the purpose of giving the circuit court of Johnson county jurisdiction, because Suddath was an indispensable party defendant in this suit, and where that is the case there can be no collusion. This is the law of this State, it is submitted, settled by statute and a long line of decisions. R. S. 1899, sec. 543; Carr v. Waldron, 44 Mo. 393; Dillon v. Bates, Trustee, 39 Mo. 292; Harris v. Murphy, 106 Mo. App. 465; Wolff v. Ward, 104 Mo. 155; Frost v. Bedford, 54 Mo. App. 353. This is the law in the Federal Courts and everywhere. Belding v. Rains, 37 Fed. 817; McKey v. Lamon, 159 U. S. 317; Jones on Mortgages, sec. 1369; 5 Ency. Plead, and Prac., 672-3-4, and note. The interest of Suddath was not joint with that of Houts. Richey v. Bronson, 33 Mo. App. 424.
   MARSHALL, J.

— This is an original prohibition to prevent the respondent from entertaining jurisdiction in a certain case in Johnson county, Missouri, wherein O. L. Houts is plaintiff, and the relator and James W. Suddath are the defendants, on the ground that the respondent has no jurisdiction over the person of the relator in that case. A preliminary rule in prohibition was issued by this court, and at the return term thereof, the respondent appeared and moved to dismiss the cause on the ground that the petition and exhibits upon which the preliminary rule in prohibition was granted, show that the respondent had jurisdiction of the subject-matter of the action, and of the parties thereto, including the relator, and had not exceeded his lawful powers; and further because upon the facts stated in the petition this court would necessarily have to pass upon the merits of that action in a proceeding by prohibition; and further because the petition is insufficient in law.

The case, therefore, stands for judgment upon the facts stated in the petition, which so far as the same are well pleaded, are confessed by the motion to dismiss. The essential facts stated in the petition are these:

The respondent is the judge of the circuit court of Johnson county. On the 14th of January, 1904, Houts instituted a suit against Jackson, in the circuit court of the city of St. Louis, to recover the sum of $4,378, alleged to be due him for his services as attorney in a certain suit heretofore prosecuted to final judgment and recovery, in a case wherein Minter Brothers sued Bradstreet Commercial Agency for libel and recovered $27,000 with interest, and wherein Jackson collected, as principal, interest and costs, the sum of $36,-298.10 and retained thereof the sum of $17,548.10, for the purpose of covering the fees of Jackson, Houts and Suddath. Suddath alsojnstituted a similar suit against Jackson in the city of St. Louis. It was agreed in those suits that the judgment in one should settle both. Both of those cases are pending and undetermined. While those cases were still so pending, Houts instituted a similar suit in the circuit court of Johnson county against Jackson and Suddath, alleging that he and Suddath were each entitled to one-fourth part of the $17,-548.10 retained by Jackson as aforesaid, and that Suddath refused to join as a party plaintiff, and therefore he was made a party defendant. Summons was issued and served on Suddath in Johnson county, but Jackson not being found therein, a summons against him was issued and sent to the sheriff of the city of St. Louis, who served the same upon Jackson in that city. At the return term Jackson appeared, limiting his appearance for the purposes of the motion, and moved to quash the summons and dismiss the suit, on the ground that the court had no jurisdiction over him, because he resided in the city of St. Louis and the plaintiff resided in Johnson county. The court overruled the motion to dismiss, and thereupon Suddath filed an answer in which he admitted all the allegations of the petition and affirmatively prayed judgment, against Jackson for one-fourth of the $17,548.10, which Houts alleged Jackson had received. Jackson then applied to this court for this writ of prohibition.

I.

Jurisdiction.

Section 562, Revised Statutes 1899, provides: “Suits instituted by summons shall, except as otherwise provided by law, be brought: first, when the defendant is a resident of the State, either in the county within which the defendant resides, or in the county within which the plaintiff resides and the defendant may be found; second, when there are several defendants, and they reside in different counties, .the suit may be brought in any such county,” etc.

There were several defendants in the action of Houts against Jackson and Suddath. They resided in different counties. The question, then, is, whether, under the second subdivision of the section quoted, the circuit court of Johnson county could acquire jurisdiction over Jackson, who resided in the city of St. Louis, on the ground that he was a defendant in the suit in which Suddath, who was a resident of Johnson county, was also defendant.

This provision of the statutes underwent adjudication by this court in Graham v. Ringo, 67 Mo. 324. That was an action against Ringo, as maker, and Hector, as guarantor, of a certain promissory note. Hector resided in Cape Girardeau county and Ringo resided in and was served in Scott county. The action was instituted in the Cape Girardeau Court of Common Pleas. After judgment by default, Ringo, appearing specially, moved to set aside the judgment, for the reason that he could not be jointly sued with Hector, and being a resident of Scott county, the common pleas court of Cape Girardeau county acquired no jurisdiction over his person by the service of process on him in Scott county. The lower court sustained the motion and the plaintiff appealed. This court held that the obligation of Ringo and Hector was not a joint engagement, and therefore they could not be sued jointly. It then held (l. c. 326): “Nor could any judgment have been rendered in this action against Ringo alone. He was not jointly liable with the defendant Hector, and did not reside in the county in which the action was brought, and was not served with process in said county, and the court acquired no jurisdiction over his person. Our statute provides that when there are several defendants, residing in different counties, suit may be brought in either of said counties, and in such case, a separate summons shall be issued to each county for all the defendants residing therein. But this statute evidently contemplates a case in which there is a joint liability on the part of all the defendants. It was not necessary for the defendant Ringo to appear and plead to the jurisdiction of the court, as was done in the case of Capital City Bank v. Knox, 47 Mo. 333, as it sufficiently appeared from the face of the petition that the défendants were not jointly liable, and that the defendant Hector was joined for the purpose of acquiring jurisdiction over the defendant Ringo.”

The proper construction of section 562, Revised Statutes 1890, again came before this court in Haseltine v. Messmore, 184 Mo. l. c. 314. After quoting the first clause of that section, it was said: “It was held in the case of Graham v. Ringo, 67 Mo. 324, that where two persons who are not jointly liable are joined as defendants in one action, if one of them resides and is served with process in a county other than that where the action is brought, the court acquires no jurisdiction over him; and if the misjoinder appears from the face of the petition, the question of jurisdiction may he raised after judgment.” It was further held that “unless there is a joint liability between the defendants, an action cannot be maintained against them jointly.”

The respondent contends that Graham v. Ringo is in effect overruled in Maddox v. Duncan, 143 Mo. 613. Of this it is sufficient to say that the question of jurisdiction decided in Graham v. Ringo, and involved in this case, was not present in Maddox v. Duncan, and Maddox v. Duncan was not intended by the writer thereof as overruling what was said in Graham v. Ringo, on the question of jurisdiction. For Burgess, J., who wrote the opinion in Maddox v. Duncan, also wrote the opinion in Haseltine v. Messmore, 184 Mo. l. c. 314, and expressly cited and followed Graham v. Ringo, on the question of jurisdiction.

Section 562, in speaking of where actions must be begun, and in referring to “defendants,” must be read in connection with section 539, Revised Statutes 1899, which denominates the parties to an action by referring to the plaintiff as the complaining party, and the defendant as the “adverse” party.

The petition charged the fact to be that Houts joined Suddath as a party defendant with Jackson in the case in Johnson county for the purpose of attempting to give jurisdiction to the circuit court of Johnson county, and the motion to dismiss this case admits that fact. In such cases a defendant so joined is not really an adverse party to the plaintiff. No judgment is asked in the petition against Suddath, and no facts were stated which would entitle Houts to a judgment against Suddath. On the contrary, the petition alleges facts, which, if true, would entitle Suddath to an aliquot part of the $17,548.10, and which would entitle Houts to a separate aliquot part thereof, but the question of the right of either to recover is not in any manner dependent upon the right of the other to recover, and a judgment in a suit by either against Jackson would not be res adjudicata of the right of the other to a judgment against Jackson. It is, therefore, manifest that Suddath was neither an adverse nor a necessary party to the determination of the controversy between Houts and Jackson, and that the mere joining of Suddath'in the suit in Johnson county, was, as the petition charged, for the sole purpose of vesting jurisdiction over Jackson in the circuit court of Johnson county. Such a practice has been expressly condemned by the highest courts in the other States and by the text-writers. [22 Enc. Pl. and Pr., p. 800, note; Allen v. Miller, 11 Ohio St. l. c. 378; Thompson v. Massie, 41 Ohio St. l. c. 317; Barry v. Wachosky, 57 Neb. 534.]

The Supreme Court of Ohio, in Allen v. Miller, supra, aptly determined the question here involved as follows:

“Now, these assignors, in so far as they had any ‘interest in the subject of the action,’ were interested, with the plaintiff, ‘in obtaining the relief demanded,’ and ought, if made parties at all, to have been made parties plaintiff. True, they might have refused their consent to become plaintiffs, and then they might have been made defendants, ‘the reason being stated in the petition.’ This was not done. But if it had been done, we think it would not have affected the question. Consent might be withheld for the express purpose of conferring jurisdiction upon a court, whose jurisdiction it is the policy of the law to exclude. And the important question of jurisdiction must not be permitted to turn upon individual caprice, or fictitious and colorable arrangements. It seems to us, that the words, ‘defendant’ and ‘defendants,’ as employed in those sections of the code to which reference has been made, in so far as they affect the question of jurisdiction, must be held to mean not nominal defendants merely, but parties who have a real and substantial interest adverse to the plaintiff, and against whom substantial relief is sought; and that to hold otherwise would open wide a door to all sorts of colorable devices, to defeat the policy of the law in respect to jurisdiction — devices difficult to detect, but oppressive and wrongful in their practical operation.”

And in Barry v. Wachosky, 57 Neb. 534, it was said: ‘ ‘ The test for determining whether an action is rightly brought in one county against a defendant found and served therein so that the other defendants may be served in a foreign county, is whether the defendant served in the county in which the action is brought is a bona fide defendant to the action — whether his intrest in the action and the result thereof is adverse to that of the plaintiff.”

The code of this State recognizes and proceeds upon the same theory. Section 543, Revised Statutes 1899, provides: “Any person may be a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein.” And section 544 provides; “Parties who are united in interest must be joined as plaintiffs or defendants, but if the consent of any one who should be joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the petition. This section shall apply to both actions at law and suits in equity. ’ ’

In 15 Ency. Pl. and Pr., 735, it is said: “The test of unity of interest intended by the statute is such joint connection with the subject-matter as will preclude a separate action.”

In 16 Cyc. of Law and Proc., 184, it is said: “No person is a necessary party to a suit in equity, although he may have an interest in the subject-matter, if such interest cannot be affected by the decree. Therefore, the object rather than the subject of the suit must be looked to, and only those are necessary parties whose rights' are involved in the purpose of the bill. Therefore, also, the prayer for relief is important in determining the requisite parties, as one need not be made a party against whom no relief is demanded, provided his rights will not necessarily be affected. It follows that where others are not thereby affected, plaintiff may dispense with a party otherwise necessary by waiving his claim against him. ’ ’

In McNear v. Williamson, 166 Mo. l. c. 369, this court said: “Arthus Jennings was not a necessary party to this suit and it was therefore improper to- have made him a defendant. Section 544, Revised Statutes 1899, providing that parties united in interest with the plaintiff and refusing to join in the suit may be made defendants, does not apply to a case in which the plaintiff may sue for and recover his interest, independent of another party who has a like interest.”

To the same effect also is 15 Ency. of Pl. and Pr., 658; 22 Ency. Pl. and Pr., 100; Story’s Equity Pleading, 207a; Pomeroy’s Eq. Juris., sec. 178, and notes; Hubbard v. Burrell, 41 Wis. 365; Gaines v. Miller, 111 U. S. 395.

The defendant, however, contends that this suit is a proceeding in equity to enforce a trust, and that Suddath is a necessary party, because he has an interest in the fund, and that the interests of Houts and of Suddath have not yet been ascertained, and that in order to ascertain them, an accounting must be had.

An examination of the petition in the case of Houts v. Jackson and in Suddath v. Jackson, pending in the circuit court of St. Louis City, as also an examination of the petition in the case of Houts v. Jackson and Suddath, pending in the circuit court of Johnson county, clearly demonstrates that this contention is wholly untenable. Houts claims one-fourth of the amount retained by Jackson independent of any claim Suddath may have against Jackson. Likewise Snddath claims one-fourth of that amount irrespective ■ of any claim that may he asserted or maintained hy Honts against Jackson. The employment of Honts and Snddath, although for a contingent fee, was wholly independent of each other. A judgment in either case would not affect the other case. Honts neither has nor claims to have any rights against Snddath, and vice versa. Each claims a certain portion of the fee collected by Jackson. No accounting is necessary, for the amount received by Jackson is admitted by all parties. The only question that could be determined in either of the suits of Honts against Jackson or Snddath against Jackson, is whether the plaintiff in each suit was entitled to recover from Jackson, and if so, how much. In other words, the action of Houts against Jackson in St. Louis, and the action of Snddath against Jackson in St. Louis, is purely an action at law for money had and received. The same is true of the action of Houts against Jackson and Snddath in Johnson county. The plaintiffs in those cases have a full, complete and adequate remedy at law, and therefore the action in equity will not lie. The action here sought to be prohibited is in no sense a proceeding in equity. It is a plain action at law to recover $4,378 from Jackson as for money had and received by him to the use of the plaintiff, and is in no sense an action against Snddath. .

The reason and logic of the foregoing leads to the inevitable conclusion that the plaintiff Houts joined Snddath as a defendant with Jackson in the Johnson county suit for the purpose of giving jurisdiction to that court, but not with any idea or expectation of obtaining any judgment whatever against Snddath; that the object of that suit was to recover a certain portion of a certain and ascertained fee collected by Jackson, and that the judgment in that case would have no effect whatever upon any claim Snddath might have against Jackson. Under such circumstances the circuit court of Johnson county had no jurisdiction of the case. Jackson resided in St. Louis, was entitled to he sued there, and had actually been sued there before the suit in Johnson county was instituted. It follows that the preliminary rule in prohibition must be made, and is made, absolute.

Gantt, VaUiant, Fox and Lamm, JJ., concur; Burgess, J., concurs in what is said as to the law, but dissents from the judgment on the ground that relator had an adequate remedy by appeal from the ruling of the" trial court; Brace, G. J., absent.