text:
    THE STATE ex rel. HUGH McINDOE and A. W. THURMAN v. DAVID E. BLAIR, Judge.
    In Banc,
    December 16, 1911.
    1. CORPORATION: Suit Against Stockholder of Unpaid Stock: Service by Publication. Before it can be said that a stockholder is indebted to an insolvent and bankrupt corporation for unpaid shares of stock held by him, there must be a trial to determine that question, which under the statute (Secs. 985 and 987, R. S. 1899) cannot be had upon constructive service hy publication. A personal judgment cannot be rendered against a non-resident stockholder of a bankrupt corporation, in an attachment suit brought by publication against him and by personal service against his attorneys as garnishees for moneys turned over to them by the trustee in bankruptcy as his share of the fund, on the theory that he was the holder of unpaid stock, and as such had fraudulently assigned the money to another non-resident. In such case the question of whether the non-resident stockholder, served hy publication, was indebted for unpaid stock held by him, cannot be adjudicated, because the court has not acquired jurisdiction over him.
    2. COMPULSORY INTERPLEADER: Non-Resident: Fraudulent Assignee of Fund. The courts of this State'have no authority to compel or order non-residents-to appear and interplead and litigate their right to property or funds attached. The court cannot compel a non-resident assignee of another non-resident, who it is alleged had fraudulently assigned the attached fund in the hands of the assignor’s attorneys in this State, to appear and interplead for the fund as against the plaintiffs in attachment.
    Prohibition.
    Writ awarded.

      Mclndoe £ Thurman for relators.
    (1) Hhe claims of the Independent Powder Company and the Joplin Supply Company are founded upon an account against the Florence Mining Company, a corporation. The indebtedness claimed is not a direct charge against the defendant, Arthur Kennedy. The petition seeks to charge Kennedy on a personal obligation to the company and to the Joplin Supply Company and Independent Powder Company. It involves personal rights and obligations and a judicial determination of the rights of the Independent Powder Company and of the liability of the defendant, Arthur Kennedy, to the corporation. It involves an accounting of moneys paid by Kennedy to the corporation and the value of the corporate property. It requires a personal judgment. Such a judgment cannot be rendered except on personal service or personal. appearance. It cannot be rendered on service by publication and the court has no jurisdiction to render any judgment on such service. Penover v. Neff, 95 IT. S. 714; Smith v. MeCutchen, 38 Mo. 415; Wilson v. Railroad, 108 Mo. 588; Story on Conflict of Laws, section 639; Fitzsimmons v. Johnson, 90 Tenn. 424; Abbott v. Shepherd, 44 Mo. 273; Elleson v. Martin, 53 Mo. 575. (2) The only affidavit in the writ of attachment and in the order of publication alleged against defendant Kennedy is that Kennedy is a non-resident of this State. Section 575, Revised Statutes 1899, requires that the court or the clerk thereof “shall make an order directed to the non-residents or absentees, notifying them of the commencement of the suit, and stating briefly the object and general nature of the petition.” The publication does not state the nature of the plaintiff's’ claim, nor the object of the suit, and does not charge fraud, which is now sught to be established.'Bobb v. Woodward, 42 Mo. 482; Parker v. Burton, 172 Mo. 85; Winningham v. Trueblood, 149 Mo. 584. (3) The amended affidavit was filed after the publication was made and filed. The court had no right to a-mend or to permit amendment on constructive service. A judgment rendered upon such amended service would be void, as the defendant-could not be held without notice of such amendment. Janney v. Spadden, 38- Mo. 395; Railway v. Atchison, 137 Mo. 230; Milner v. Shipley, 94 Mo. 106. (4) A stockholder cannot be held and cannot be rendered liable on a judgment on service of publication where the defendant resides outside of the State. The statute must be construed as only having application to residents of the State and those who may be served personally within the State. Wilson v. Railroad; 108 Mo. 588; Smith v. McCutchen, supra. (5) The courts of this State have no right or authority to order a nonresident to appear and interplead and litigate their respective rights to property or funds attached. Sheedy v. Bank, 62 Mo. 17; Shinn on Attachment, sec. 673; Wright v. Huck, 193 Mo. 130. (6) Section 987, Revised Statutes 1899; should be construed as applying only to residents of the State. Such statutes cannot be presumed to be binding upon non-residents. Connell v. Tel. Co., 108 Mo. 459,
    J. W. McAntire for respondent.
    (1) This action was brought under Sec. 987,. Revised Statutes: 1899, and is an action at law. Stone Cutter Co. v. Scott, 137 Mo. 527; Van Cleve v. Berky, 143 Mo. 109; Bank v. Gallagher, 43 Mo. App. 482; Shepard v. Drake, 61 Mo. App. 140. (2) Arthur Kennedy was liable for all unpaid balance of such stock, either at law or in equity. Van Cleve v. Berky, 143 Mo. 109; Stone Cutter Co. v. Scott, 157 Mo. 527; Banking Co. v. Mfg. Co., 168 Mo. 643; McClure v. Iron Co., 90 Mo. App. 578. (3) The affidavit was sufficient to authorize writ of attachment and order of publication, and is even amendable. Burnett v. Mc-Cluey, 92 Mo. 230; Avery v. Good, 114 Mo. 290; Tufts v. Volkenning, 122 Mo. 631. (4) The garnishee first disclosing in his answer a claim that the right to money in their hands had been assigned to Henry Knox, it was for their benefit that the order of publication was made as well as ours. R. S. 1899', sec. 3459; McKittrick v. Clemens, 52 Mo. 160; Swartz v. Riner, 66 Mo. App. 476; Goves v. Elliott, 65 Mo. App. 96; Schawacker v. Dempsey, 83 Mo. App. 354; "Wilson v. Mnrphy, 45 Mo. 410;. G-roschke v. Bardenheimer, 15 Mo. App. 359. (5) The court has jurisdiction to try the issue as to whether or not the assignment was made with intent to hinder and delay creditors. Lee v. Tabor, 8 Mo. 322; Humphreys v. Milling Co., 98 Mo. 550; Eyermann v. Krickhaus, 7 Mo. App. 456; Straus v. Ayers, 34 Mo, App. 255; Joseph, Nolke & Co. v. Boldridge, 43 Mo. App. 337; Epstein v. Clothing Co., 67 Mo. App. 226: (6) Jurisdiction in attachment proceedings is acquired by the levy of the attachment regularly issued as this was by order of court in term time and is not ousted by the fact that the subsequent publication was not regularly made. Freeman v. Thompson, 53 Mo. 183; Kane v. McCown, 55 Mo. 181; Holland v. Adair, 55 Mo. 40; Johnson v. Gage, 57. Mo. 160 ; Shea v. Shea, 154 Mo. 606. (7) The authorities quoted by relators upon their claim that the order of publication is not sufficient to grasp the property attached, are not in point in this case. Of those cases, except Janney v. Pedden, all were actions under the tax law of the State to enforce the State’s lien against specific realty, and in those cases it was held that a statement of the object and general nature of the petition which omitted the land against which the lien was sought was wholly insufficient; but the counsel of relators ignore the fact that there is a different rule which applies to attachment cases, and the well-settled principle of law is, in attachment causes, the jurisdiction over any given subject-matter is obtained by levy thereon of a writ properly issued; and no matter what or how great errors or irregularities may subsequently occur, the res remains still in the grasp of the court and its judgment in regard thereto will be valid and binding until reversed on error or by appeal or set aside in direct and appropriate proceeding for that purpose. Harden v. Lee. 51 Mo. 244; Freeman v. Thompson, 53' Mo. 194; Randall v. Snyder, 214 Mo. 32; Shea v. Shea, 154 Mo. 599: Prohibition will not lie in this ease. (8) The circuit court had jurisdiction over the property of defendant, Athur Kennedy, "by reason of the attachment of property in the hands of Mclndoe and Thurman. It was first disclosed in the answer of Mclndoe and Thurman that there is a claim of an "assignment of the funds to Henry Knox. It then became the duty of the court to make an order on Henry Knox to come in and interplead under Sec. 34591, R. S. 1899. If the court had jurisdiction to do this, and it had jurisdiction over the property of Kennedy, impounded by attachment in this case, and also had jurisdiction over the persons of Mclndoe and Thurman, it certainly had jurisdiction to try and determine the issues, and in such cases a writ of prohibition would not lie. State ex rel. v. Elkins, 130 Mo. 90; Railway v. "Wear, 135 Mo. 230.
   WOODSON, J.

This is an original proceeding instituted in this court, seeking to prohibit the circuit court of Jasper county from further proceeding with the trial of two certain causes pending therein, namely: The Independent Powder Company v. Arthur Kennedy, and The Joplin Supply Company v. Arthur Kennedy. Both involve the same issues in fact and propositions of law.

In order to correctly understand the questions here presented, it will only be necessary to set out the return of the respondent, and the report of the special commissioners appointed by this court to hear the evidence, etc. The petition for the writ of prohibition is very lengthy, and it will for that reason be omitted from this statement.

The return (formal parts omitted) is substantially as follows:

Admits that the respondent is one of the judges of the circuit court of Jasper county; that the Independent Powder Company of Missouri and the Joplin Supply Company are corporations, organized under the laws of Missouri; that on November 16th, 1905, each of said corporations instituted a suit and obtained judgments in said court, against the Florence Mining Company, a corporation, for the sums and amounts stated in relator’s petition; and that on the--day of---- 1906, the Florence Mining Company was duly adjudged a, bankrupt, etc.

Respondent admits that on November 16th, 1907, both the Independent Powder Company and the Joplin Supply Company instituted suits by attachments against Arthur Kennedy, who was a non-resident of the State of Missouri, by petitions which were substantially as follows:

“Comes now the plaintiff and states that it is a corporation organized and existing under and by virtue of the laws of the State of Missouri, and that the defendant Arthur Kennedy is a non-resident of the State of Missouri and resides in and is a resident of .the State of Pennsylvania.
“Plaintiff for its cause of action states that at the dates shown by the itemized account hereto annexed, at the special instance and request of thé Florence Mining Company, a corporation, it sold and delivered to said corporation certain goods, wares and merchandise of the value and for the price of $2706, the items of which, as well as the dates when! the various articles were sold and the prices charged therefor respectively, appear from the bill of items hereto annexed, marked ‘Exhibit A.’ Plaintiff states that the prices charged therefor were reasonable, and that the said corporation promised and agreed to pay the same, but failed to do so. That thereafter, on the ---day of-- — , 1906, this plaintiff sued said corporation in the circuit court of Jasper county, Missouri, and obtained a judgment against it for said claim and interest, being $3040.91. That within four months thereafter, towit, on the 6th day of August, 1906, the said corporation was adjudged a bankrupt by due process of law. That no part of said judgment has been paid. That thereafter this plaintiff presented said judgment to the referee in bankruptcy and the same was filed, and the sum of $3040.91 allowed as a claim against said bankrupt corporation. That there is still due this plaintiff, after giving credit for the amount of $905.99 to be paid by the trustee in bankruptcy to this plaintiff, the sum of $2134.92, said sum being still due upon said judgment so allowed by the referee in bankruptcy and upon the original account and is still unpaid.
“Plaintiff further states that the Florence Mining Company was a corporation organized under the laws of the State of Missouri, and under chapter 12 of the Revised Statutes of the State of Missouri, on or about the —--day of April, 1906', with a capital stock of $100,000 divided into 100,000 shares of the par value of one dollar each. That in May, 1905, a mining lease standing in the name of H. W. Bishop and in ■which Arthur Kennedy had a certain interest was assigned to the corporation for the capital stock of the same.
“Plaintiff further states that at the time that the lease was assigned, with all improvements thereon, the said leasehold interest and improvements were not worth to exceed $12,000’. That the stockholders undertook to set apart 25,000' shares of said stock as treasury stock to be held and used for the benefit of the company. That out of the 75,000' shares of stock there was issued to Arthur Kennedy 30,000 shares representing his interest in the lease, which said interest is alleged to be a four-tenths interest.
“The plaintiff further states that on this 3p,000 shares he paid an assessment or contribution of five cents per share. That thereafter, to-wit, on the--day of--- — , 1905, the Florence Mining Company caused the 25,000 shares of treasury stock to be transferred or to be issued to the said Arthur Kennedy and the owner paid therefor $12,000. The plaintiff further alleges that the said Arthur Kennedy was a party fo the arrangement by which the company was organized and the lease conveyed to it and the stock issued as above recited and that all of the transactions of the corporation were done by and with his consent and active concurrence, and with the full knowledge of all of these facts and of the character and value of the property in payment of its capital stock.
“That the said Arthur Kennedy was at the date and time the plaintiff herein gave credit to said corporation, the owner and holder of 55,000 shares of the. capital stock of the Florence Mining Company. That he had only paid thereon the sum of $18,800', leaving a balance unpaid upon said stock in the sum of $36,200, which he had never paid to said corporation and had never notified this plaintiff that1 the same was unpaid.
“The plaintiff further states that the Florence Mining Company, a corporation, has been dissolved. That on or about the 6th day of August, 1906, it became totally insolvent and bankrupt and a petition was filed in the United States District Court for the Southwestern Division, Judicial District of Missouri, against it by a part of the creditors of said Florence Mining Company, and on the 6th day of August, 1906, the said Florence Mining Company was adjudged and declared a bankrupt. That the total amount of its assets were reduced to cash by the trustee in bankruptcy and realized only the sum of $8250, whereby it became dissolved, being unable by reason of a total want of funds and means to exercise its corporate powers. That the total amount of debts proved up against said bankrupt was as follows: ■
“By Arthur E. Kennedy the sum of $11,102.48, and by other creditors, including this plaintiff, the total sum of $13,764.45, making a total amount of the indebtedness proved np against said bankrupt of tbe •sum- of $24,8i66.93.
“The plaintiff further states that the time Arthur Kennedy procured and acquired the 55,000 shares of stock so held by him, be took and acquired the same with full knowledge of the non-payment of the capital stock and that by failing to pay the full amount of the capital stock so held by him be was guilty of a fraud upon the creditors of said Florence Mining Company, and thereby and under the statutes of the State .of Missouri, became liable to the defendant for such an amount as was due it from the corporation, to-wit, the sum of $2134.92.
“Wherefore plaintiff asks judgment against tbe defendant Arthur Kennedy for tbe sum of $2134.92 and costs of suit.”

Then follow signatures of attorneys.

‘ ‘ That thereupon a writ of attachment was issued against the property and effects of Arthur Kennedy and money claimed to be in the bands of John M. Malang was attached and thereafter, owing to the fact that John M. Malang was trustee in bankruptcy, be was discharged.
“That the publication was in words as alleged by relators and admits that the same was duly published. Respondent alleges that on the 6th day of February, 1908', in open court an order was made in each of said causes that an alias writ of attachment issue against Arthur Kennedy in each of said causes commanding the sheriff to attach goods, tenements and moneys of Arthur Kennedy. That on the 10th day of February, 1908, Mclndoe & Thurman were summoned as garnishees, as alleged by them; that publication was issued and published in each of said causes as alleged by relators, and that the same was duly published, and alleges that proof thereof was made to the said court; that interrogatories were filed as alleged by relators in each of said causes and that answers were filed substantially as alleged by relators in each of said canses. Respondent says that in the first answer filed in said causes the relators did not allege, as claimed by them in tbeir petition herein, that the funds sought to be reached as the property of Arthur Kennedy had been sold and assigned by said Kennedy to Allen Wilson for value and from Allen Wilson to Henry Knox, but said answer did allege as follows: ‘The garnishees further state that any funds sought to be reached belohging to Arthur Kennedy, or supposed property of Arthur Kennedy, sought to be reached in the hands of the garnishees, had been sold and assigned by said Kennedy to Henry Knox, a citizen of the State of New York, long prior to the attachment herein, which the garnishees believe to be true.’
“That as to said first answer, the plaintiffs in each of said causes filed exceptions on account of the alleged insufficiency thereof, which exceptions were by the court sustained. That thereafter the said garnishees on the 18th day of May, 1908, filed in each of said causes their amended answer, in substance as pleaded by them in their petition herein on pages 9 and 10 thereof.
“Admits that plaintiffs in each of said causes filed their respective denials as alleged by relators.
“That on the 26th day of May, 1908, the plaintiffs in each of said causes filed an application to require Henry Knox to interplead, and that said application was in words as alleged by relators in their petition herein on pages 13 and 14 thereof, and thereupon the plaintiffs asked and the court granted an order of publication requiring said Henry Knox to interplead for said funds so claimed to be assigned to him.”

Thereafter the garnishees and Henry Knox, by his special motion, appearing for the purpose of the motion only, moved to quash the service in the Independent Powder Company case against Arthur Kennedy and also in the case of Joplin Supply Company v. Arthur Kennedy. The court sustained the motion to quash the said order as to the Joplin Supply Company, but has not yet passed upon the motion to quash the order as to the Independent Powder Company of Missouri v. Arthur Kennedy.

The said order of publication to Arthur Kennedy was. based upon an affidavit, which is as follows, omitting caption and heading: '

“J. W. McAntire being duly sworn, makes oath and says that he is attorney and agent of the plaintiff above named.
“Affiant further states upon oath that Henry Knox who makes some claim to property and funds belonging to Arthur Kennedy, now in the hands of the garnishees and attached by the plaintiff as the property of Arthur Kennedy, is a non-resident of the State of Missouri and that the ordinary process of law cannot be served upon him in this State.
“Wherefore plaintiff asks that an order of publication be ordered published in some newspaper for three consecutive weeks, notifying the said Henry Knox to be and appear on or before the 30th day of October Term, 1908, in the circuit court of Jasper county, Division No. 2, at Joplin to sustain his claim if any he has to such funds and money now in the hands of the garnishee and attached by the plaintiff in this case.”

Which said affidavit was duly sworn to.

That thereafter the order of publication was issued requiring Henry Knox to appear and interplead in said causes, which order of publication was as follows (formal parts omitted):

“Whereas it appears by the answer of the garnishees in the above entitled cause that the debt owing by them to the defendant, Arthur Kennedy, has been sold and assigned by said Arthur Kennedy to Henry Knox before the attachment writ and writ of garnishment was served herein, and it further appearing that the plaintiff herein contests and disputes the existence, force and validity of such sale and assignment and claims that the same was made without any consideration passing from Henry Knox to Arthur Kennedy, and was made for the purpose of hindering, delaying, defrauding and cheating the creditors of Arthur Kennedy, and it further appearing to the court by the answer of the garnishees herein and by affidavit of plaintiff filed herein that the said Henry Knox is a nonresident of the State of Missouri and that the ordinary process of law cannot be served upon him in this State.
“It is therefore ordered by the court that the said Henry Knox be and is hereby notified to be and appear in the circuit court of Jasper county, Missouri, in Division No. 2, at Joplin on or before the third day of the October Term, 1908, to-wit, on or before October 7, 1908, and by proper pleading sustain his claim to the funds or debt now in the hands of the garnishees claimed by the plaintiff to be the property of said Arthur Kennedy, defendant in the attachment suit herein.
“It is further ordered by the court that a copy hereof be published at least once a week for three consecutive weeks, the last insertion to be at least fifteen days before the first day of the October term of said court and the said publication be made in the Joplin Weekly Times, a newspaper published in said county and designated by the plaintiff as most likely to give notice to said Henry Knox, claimant as aforesaid.
“A true copy.” Properly attested.

Said publication was, as the records show, published for at least three weeks, to-wit, four weeks beginning on August 20, 1908, and ending 10th day of September, 1908, once a week for three consecutive weeks in a newspaper in the city of Joplin, Jasper county, Missouri; that the last insertion of said order of publication was made more than fifteen days before the first day. of the October term, 1908.

That therefore, on the 7th day of October, 1908, a motion was made both by Henry Knox and by the garnishees, Mclndoe and Thnrman, in each of said causes to quash the order of publication made by the court notifying Henry Knox to appear and interplead and the service of said order for the principal reason that Henry Knox was a nonresident of the State and that service obtained upon him by publication was illegal and void. That the motion to quash in the case of the Independent Powder Company is still pending and undetermined as shown by the record.

That in each of said cases there is also now pending and undetermined a motion to strike out a part of plaintiff’s denial to answer of garnishees filed in each of said causes, a copy of deniaLs being shown in relators’ petition.

“That the petition of the Independent Powder Company anda Joplin Supply Company state causes of action against Arthur Kennedy under Revised Statutes 1899, section 987, and attachment writs were properly issued and levy made upon the property of the defendant and defendant was duly notified by publication in a proper way that suit had been commenced against him and his property attached. That plaintiffs in each of the cases attached money amounting to something over $3000, which had been received by relators as his attorneys from money collected from John M. Malang, trustee in bankruptcy of the Florence Mining Company^ bankrupt, in which company Kennedy was a stockholder holding 55,000 shares of the capital stock of said Florence Mining Company. That at the time the Florence Mining Company was adjudged a bankrupt and at the time plaintiff sold goods to said bankrupt previous to the adjudication the said Kennedy had only paid in money and property for said shares of stock the sum of $18,000, and owed to the corporation a balance of $36,200. That he participated in the frauds complained of in plaintiffs’ petitions and was liable to plaintiffs for money due them on their accounts which had. been reduced to judgments.”

The following are the material portions of the commissioner’s report, as filed in this court, viz.:

“I further certify that both sides announced.ready to proceed and that the following admissions were made and offered by the parties to said case, to-wit:
“1. That the Florence Mining Company has been discharged in the bankruptcy proceedings referred te in the petition of relators and the return of respondent.
“2. That in the suit of the Independent Powder Company v. Arthur Kennedy, referred to in the pleadings, there was filed with the petition in that case an itemized statement as set out in relators’ reply, which is marked and referred to as ‘Exhibit A.’
“3. That in the garnishment proceedings against John M. Malang, trustee in bankruptcy of Arthur Kennedy, referred to in relators’ petition, Malang did not plead that the money sought to be reached by said garnishment had been assigned to one Wilson and from Wilson to Knox, but that said Malang based his right to a discharge on the ground that he was trustee in bankruptcy and that the funds were in custodia legis, upon which said answer Malang was discharged.
“4.. That the first answer filed by relators in the garnishment proceedings against them by the Independent Powder Company and the Joplin Supply Company referred to in the pleadings herein, the said garnishees ’ answer contained the allegations quoted in respondent’s return herein.
‘ ‘ 5. That the allegation in relators ’ petition herein ‘that under the answer of the garnishees in the suit of the Independent Powder Company against Arthur Kennedy in which these relators are garnished and under the exceptions filed by the plaintiff therein the plaintiff admits that the said funds had been assigned, ’ is based solely upon the relators’ construction of the pleading filed by the Independent Powder Company to require Knox to interplead.
“6. That the orders of publication in the cases entitled ‘Independent Powder Company and Joplin Supply Company v. Arthur Kennedy, defendant; Hugh Mclndoe and A. W. Thurman, garnishees, and Henry Knox, claimant of the debts and funds attached,’ set out at pages 8 and 9 of respondent’s return, were published for three consecutive weeks, the last publication being more than fifteen days before the October Term, 1908, of the circuit court of Jasper county, Missouri.
“7. That there is now pending and undetermined in the circuit court of Jasper county, Missouri, a motion to strike out a part of the plaintiff’s denial of the amended answer of the garnishees in each of the cases of the Independent Powder Company and the Joplin Supply Company v. Arthur Kennedy, defendant ; Hugh Mclndoe and A. 'W. Thurman, garnishees.
“8. That on April 19, 1909', there were filed in the circuit court of Jasper county in each of the cases of Independent Powder Company and Joplin Supply Company v. Arthur Kennedy; Hugh Mclndoe and A. W. Thurman, garnishees, by said garnishees, the following motion, omitting caption, title and signatures:
“ ‘Come now the garnishees herein and move the court for judgment discharging them under the pleadings and issues tendered and assign the following reasons therefor:
‘ ‘ ‘ 1st. Because the court has no jurisdiction over the principal defendant Arthur Kennedy and thereby acquired no jurisdiction over the defendants or any debts or funds that may be due by them to the defendant sought to be held under the process of garnishment issued herein, in that the order and service of publication is insufficient under the statutes of this State and does not notify the principal defendant Arthur Kennedy of the commencement of the suit and by stating briefly the publication and general nature of said petition.
‘2nd. Because the petition filed by plaintiff is not such an action as to constitute or be a basis upon which an attachment can issue, being of an equitable nature and not upon a liquidated demand and that the court has no jurisdiction over the garnishees by reason of any process issued thereof.
“ ‘3rd. Because the court has no jurisdiction over the defendant and has no jurisdiction over the garnishees of any funds in their hands or any debts that may be owing or any right to prosecute against the garnishees because of the lack of jurisdiction.
“ ‘4th. Because under the issues tendered by the plaintiff and garnishees under the answer and denial made herein the garnishees deny and plead an assignment to Henry Knox a citizen of the State of New York, and the plaintiff admits such assignment, but undertakes to challenge said assignment on the ground that the assignment was fraudulently made, that the adjudication of such question would require a personal judgment and adjudication of the rights of the assignor and assignee which this court has no jurisdiction to hear and determine; that such proceedings are beyond the scope of the attachment against the principal defendant, Arthur Kennedy, and beyond the scope of the publication issued against him, and embraces issues not raised by the pleadings against the principal defendant, Arthur Kennedy, and this court has no right of jurisdiction to determine or conclude the right of Henry Knox in said assignment, said Knox not being before this court and not being a party to this proceedings.
“ ‘5th. Because the court has no jurisdiction over the principal defendant and has no jurisdiction over the garnishees herein and has no jurisdiction over any debts or funds owing by them to the plaintiff.
“ ‘Wherefore the garnishees pray judgment on the pleadings and that the garnishees be allowed to go hence with their costs.’
“And that thereafter on June 5, 1909, the said motions were by the court overruled and at the request of said garnishees they were by order of court permitted to file their bill of exceptions on or before the October Term, 1909, but that ho bill of exceptions was ever filed.
“9. That on February 6, 1908, in open court an order was made in each of the cases of Independent Powder Company and Joplin Supply Company v. Arthur Kennedy, then pending in the circuit court of Jasper county, an order was made that an alias writ of attachment issue against said Arthur Kennedy in each of said cases commanding the sheriff of said county to attach the lands and tenements, goods, chattels, moneys, credits, evidences of debts and effects of said Kennedy.
“10. That after the amended affidavit of the plaintiff in each of the cases of the Independent Powder Company and of the Joplin Supply Company v. Arthur Kennedy, referred to in respondent’s return at pages 10 and 11, were made and filed no further publication was made as to said Kennedy or Knox.
“11. That there is no record or memoranda on the judge’s docket or other records of the circuit court of Jasper county, in the case of Independent Powder Company v. Arthur Kennedy; Hugh Mclndoe and A. W. Thurman, garnishee, showing that the motion of Henry Knox and said garnishees filed therein October 7, 1908, to quash the order of publication made by the court notifying said Knox to appear and inter-plead, has been by said court passed upon and that as shown by the records of said court said motion is yet pending therein and is undetermined in said case.
“I further certify that relators offered to. show that the last-above referred-to motion was filed at the same time that a similar motion was filed in the Joplin Supply Company casé; that both motions were argued on the same date and that the court announced his ruling from the bench sustaining both motions, but that the record entry of the ruling was not made in the Independent Powder Company case.
“To which offer respondent objected for the reason that the same was incompetent, irrelevant and immaterial ; that said offer was refused and relators duly excepted.
“I further certify that the above and foregoing is all of the offers of testimony and admissions and that a copy hereof has been delivered to counsel appearing for the respective parties and that notice has been given to said counsel of the filing hereof.”

I. This record in brief discloses that Arthur Kennedy, a resident of the State of Pennsylvania, was a stockholder in the Florence Mining Company, organized and existing under the laws of this State, for which it is claimed he had not paid the par value. That the Independent Powder Company and the Joplin Supply Company each sold and delivered to the Florence Mining Company certain goods, wares and merchandise, on credit. That the two former companies sued the latter for the purchase price of said goods and received a judgment therefor. In the meantime the Florence Company was duly adjudged a bankrupt; and thereupon the Independent Company and the Joplin Company each presented their claims against the Florence Company, to the referee in bankruptcy for allowance, which were by. him allowed. The trustee in bankruptcy paid the two former companies some $900, on their claims, leaving a. balance due them of some $2100. At the same time Arthur Kennedy also had a claim against the Florence Company, which he likewise presented to the referee for allowance, which was allowed for the snm of $11,102.48. Upon this claim a dividend of some $3000, was declared and paid by the trustee, to the relators, Mclndoe and Thurman, attorneys of said Kennedy. While this money was in the hands of the relators, the Independent Company and the Joplin Company each instituted suit in the circuit court of Jasper county, under sections 985 and 987, Revised Statutes 1899, by attachments against said Kennedy, and garnished said $3000 in the hands of the relators. The relators were personally served, while Kennedy was served by publication only..

Relators only answered, and among other things admitted that Kennedy was a nonresident of this State, as alleged by the plaintiffs, and stated on that account that the circuit court of Jasper county did not and could not acquire jurisdiction .of said Kennedy, by publication, in this character of a suit; also that long prior to the date when the $3000 was paid to them by the trustee in bankruptcy, Kennedy had assigned, sold and transferred his said claim against the Florence Company, to one Knox, a resident of the State of New York.

To this answer the plaintiffs filed a reply denying the new matter stated in the answer, and charged that the assignment to Knox was fraudulently made for the purpose of hindering the creditors of said Kennedy. And thereupon the court made an order that-said Knox appear in'the Jasper County Circuit Court, and interplead for- said $3000; and he was duly notified by publication of said order of the court.

Thereupon Knox and Kennedy, appearing specially for the purpose of the motion only, moved the court to quash the service had upon them, for the reason that the court had acquired no jurisdiction over them by the publications aforesaid. The relators filed a motion to the same effect. Neither of these motions have been passed upon by the circuit court, but the court indicated that it would overrule them and in the return filed here contends that it has jurisdiction of Kennedy and Knox, and expresses a determination to proceed with the trial of the causes.

It was upon this state of the record that relators appealed to this court for a temporary writ of prohibition, which was duly issued; and now they ask that it be made permanent.

The sections of the statute before mentioned read as follows:

“If any execution shall have been issued against any corporation, and there cannot be found any property or effects whereon to levy the same, then such execution may be issued against any of the stockholders to the extent of the amount of the unpaid balance of such stock by him or her owned: Provided, always, that no execution shall issue against any stockholder except upon an order of the court in which the action, suit or other proceedings shall have been brought or instituted, made upon motion in open court, after sufficient notice, in writing, to the person sought to be charged; and, upon such motion, such court may order execution to issue accordingly; and provided further, that no stockholder shall be individually liable in any amount over and above the amount of stock owned.” [R. S. 1899, sec. 985.]
“If any company formed under this chapter dissolve, leaving debts unpaid, suits may be brought against any person or persons who were stockholders at the time of such dissolution, without joining the company in such suit; and if judgment be rendered and execution satisfied, the defendant or defendants may sue all who were stockholders at the time of the dissolution, for the recovery of the portion of such debt for which they were liable, and the execution upon the judgment shall direct the collection to be made from the property of each stockholder respectively; and if any number of stockholders, defendants in the case, shall not have property enough to satisfy his or their portion of the execution, then the amount of deficiency shall be divided equally amongst all the remaining stockholders, and collections made accordingly, deducting from the amount a sum in proportion to the amount of such stock owned by the plaintiff at the time the company dissolved.” [R. S. 1899, sec. 987.]

This record presents several legal propositions, but in the view we take of the record it will be only necessary for us to consider two of them, namely:

First: Did the circuit court of Jasper county acquire jurisdiction over Kennedy by virtue of the publication before mentioned? and, second, did the •circuit court of.Jasper county have the power and •authority to require Knox, a nonresident of this State, to appear and interplead for the $3000' in the hands of the relators?

Counsel for respondent affirm both of these propositions while counsel for relator deny both.

We will dispose of these questions in the order stated.

(a) The position of counsel for respondent is, that this is a proceeding in rem, rather an action quasi in rem; the money in question being in the hands of the relators, who are within the jurisdiction of the court, it has the power to adjudicate the rights of the parties thereto, upon personal service had upon the relators, as garnishees, and service upon Kennedy by publication.

As an abstract legal proposition, counsel for relators do not question'that position (Freeman v. Alderson, 119 U. S. 185), but they insist that the doctrine there contended for has no application to the facts of this case.

We fully concur with counsel for the relators in this latter contention, for the reason that before it can be legally said that Kennedy owes or is indebted to the Florence Company, in any sum whatever, for unpaid shares of stock, held by him, there must be a trial had to determine that question, which cannot be had upon constructive service by publication, for the obvious reason that when such a judgment is rendered, if ever, against Kennedy, it must be a personal judg ■ ment against him; and under the statute mentioned there is no other means by which that question can be determined.

That question was so fully and completely discussed and answered by Sherwoob, P. J., in the case of Wilson v. St. Louis & San Francisco Ry. Co., 108 Mo. 588, that there is nothing remaining to be said upon that subject.

The same question has also been answered in the negative in the following cases: Pennoyer v. Neff, 95 U. S. 714; Freeman v. Alderson, 119 U. S. 185; Smith v. McCutcheon, 38 Mo. 415; Bobb v. Taylor, 25 Mo. App. 582; Story on Conflict of Laws, sec. 639; Kemper Paper Co. v. Shyer, 67 S. W. (Tenn.) 856; Fitzsimmons v. Johnson, 90 Tenn. 424; Beyer v. Trust Co., 63 Mo. App. 521; Ellison v. Martin, 53 Mo. 575.

The Wilson case has been cited with approval in the following cases: Moss v. Fich, 212 Mo. l. c. 500, 501; State ex rel. v. Wilder, 196 Mo. l. c. 431; City of Tarkio v. Clark, 186 Mo. l. c. 293; Bartlett v. Tinsley, 175 Mo. l. c. 333; Parker v. Burton, 172 Mo. l. c. 92; and numerous others.

We therefore hold that the circuit, court of Jasper county acquired no. jurisdiction over the person of Kennedy, and for that reason the question as to whether or not he was indebted to the Florence Company for shares of stock held by him, cannot be adjudicated in this case, and for that reason, the motion to quash should be sustained.

(b) The second proposition before mentioned has been answered in the negative by this court, in equally positive terms.

In the case of Sheedy v. Bank, 62 Mo. 17, this court held that the courts of this State have no right or authority to order nonresidents to appear and inter-plead and litigate their respective rights to property or funds attached. The ground upon which Judge Wagner based that decision was that a garnishment proceeding was strictly a proceeding at law, and that the courts of this State had no right or authority to compel nonresidents to appear and litigate equitable matters in such a proceeding. That ruling has never been questioned, and the ruling there made is predicated upon a solid foundation and should be adhered to. [See Reno on Non-Residents, sec. 188.]

We are therefore of the opinion that the circuit court of Jasper county never acquired jurisdiction over Knox, not only for the reason stated in the previous paragraph, but also for the reason that the court had no authority to compel him to appear, and inter-plead for the money in the hands of the relator, even though it be conceded Kennedy had assigned the same to him.

His motion to quash the service should also have been sustained.

We therefore order that a permanent writ of prohibition issue against the circuit court of Jasper county, as prayed.

All concur.


source: Caselaw Access Project

author: KENNISH, J.

license: Public Domain

text:
    THE STATE ex rel. UNITED RAILWAYS COMPANY of St. Louis v. JOHN WIETHAUPT et al.
    In Banc,
    December 16, 1911.
    1. PROHIBITION: Excess of Jurisdiction. A writ of prohibition will be issued to restrain and prohibit an inferior court from entertaining and exercising jurisdiction in a cause, upon a showing that it is assuming to act judicially in a matter over which it is without jurisdiction.
    2. PRIVATE ROAD: Denied by County Court: Appeal to Circuit Court. When a county court denies the petition for the establishment of a private road and dismisses the proceeding, its action is a final judgment against the petitioners, and they are under the statutes entitled to an appeal to the circuit court.
    3. -: -: -: Under Which Statute: Prohibition. But in prohibition against the county court to restrain it from proceeding to establish the road, in pursuance to a judgment of the circuit court granting the petition and remanding the proceedings to the county court for the appointment of commissioners, from which the defendants appeal to the Supreme Court, it is material to determine whether such right of appeal from the county court existed and the appeal was allowed under the provisions of section 10440 or of section 3956, Revised Statutes 1909; for, if under section 10440, the circuit court, upon trial anew, is expressly denied the power to- appoint the commissioners, but if under section 3956, then under section 4091 the circuit court tries the case anew as if it had originated in that court.
    4. -: -: -: -: Under Section 3956; Appointment of Commissioners: Prohibition. An appeal from a final judgment of the county court to the circuit court in the matter of establishing a private road is governed by section 3956, Revised Statutes 1909, and not by section 10440, which-relates wholly to public roads, and has, without amendment or the revision of the article, since 1871, as is shown by its history, whereas section 3956 relates wholly to private roads. In a pri- . vate road case, if the circuit court, upon appeal and trial anew, grants the petition and orders the road to be established, it has no power to remand the proceedings to the county court for the appointment of commissioners, but has complete and exclusive jurisdiction to appoint them itself and to retain the proceeding and to make all needful orders therein; and if the circuit court remands the proceeding to the county court for the appointment of commissioners, etc., the county court, in attempting to make such appointments, acts judicially without any jurisdiction, and will be restrained by prohibition from so acting.
    5. PROHIBITION: Preliminary Writ Restricted: Permanent Writ Unlimited. Where the preliminary writ prohibited a county court from proceeding in the matter of establishing a private road until relator’s appeal from the judgment of the circuit court granting the petition for the road could be heard in the Supreme Court, and the Supreme Court’s decision is that the county court has no jurisdiction whatever over the subject-matter, the writ as to it will be made perpetual.
    Prohibition.
    Writ awarded.

      Boyle & Priest, J. G. Kisltadclon and T. M. Pierce for relator.
    XI) The circuit court did not by appeal acquire jurisdiction of the subject-matter of the petition of said McDermott Realty Company and John W. Bellairs. The appeal of said petitioners from the judgment of the county court purported to be taken by virtue of section 10440, Revised Statutes 1909. This section first appeared in the road law in Laws 1874, p. 142, section 39. Prior to that time no appeal would lie in road cases. Aldridge v. Shears, 101 Mo. 400. All the road laws scattered through the statutes, including the chapter on bridges, were collected into one act and revised and re-enacted at the revising session of the Legislature in 1909. Laws 1909, p. 727. Some changes were made in the phraseology of this section in the revision of 1909, and the proviso was added to the section, but the subject which might be appealed from was not enlarged. Aldridge v. Shears, 100 Mo. 406. This, then, is the test, that the law as an act pertaining to that subject makes its own provisions in respect of appeals. Dittman v. Moeller, 143 Mo. App. 720; Mayes v. Palmer, 206 Mo! 303; Tie Co. v. Drainage Co., 226 Mo. 441; Drainage Dist. v. Railroad, 216 Mo. 715; Big Hollow Road, 111 Mo. 326. That an appeal will not lie from an inferior to a superior tribunal except from a judgment from which an appeal is expressly allowed by statute is decided in the following cases: Flick v. Schenk, 212 Mo. 375; Looney v. Browning, 112 Mo. App. 195; Morris v. Morris, 128 Mo. App. 673; Baker v. Schoeneman, '41 Mo. 391; State ex rel. v. Fowler, 108 Mo. 465; Breed v. Hobart, 187 Mo. 140; State ex rel. v. Cuinotte, 113 Mo. App. 399. It follows that if no appeal lay from the county to the circuit court from a judgment denying the petitioners ’ prayer for the opening of an alleged way of necessity, then the circuit court did not have jurisdiction of the subject-matter, had no power or authority to hear the case anew or otherwise, nor any authority to order the county court to proceed in a cause in which it had already rendered final judgment, and when the county court proceeded to obey the void order of the circuit court it was exceeding its jurisdiction and should be stopped by having the present writ made peremptory. (2) Relator’s appeal with stipersedeas bond from the judgment of the circuit court suspended that judgment and no proceeding can be had under it tending to its enforcement pending the appeal. Parker v. Railroad, 44 Mo. 418; Pratt v. Canfield, 67 Mo. 48; State ex rel. v. Klein, 137 Mo. 679; State ex rel. v. Hirzel, 137 Mo. 443; State ex rel. v. Lewis, 76 Mo. 370; Foster v. Rucker, 26 Mo. 495; Ketchum v. Thatcher, 12 Mo. App. 189; State ex rel. v. Ransom, 86 Mo. 327. The county court heard the case and decided it against the petitioners, rendering judgment accordingly. From this final judgment petitioners appealed to the circuit court. If the circuit court had jurisdiction the only question it could try was whether or not petitioners were entitled to a way of necessity. The circuit court found they were, and this was as final as the ^circuit court could make it. It will be noted that the circuit court did not remand the case to the county court for a new trial. It found and adjudged as a finality that petitioners were entitled to a way of necessity and peremptorily commanded the county court to proceed with the condemnation of relator’s property. There was to be no more trial of .the question whether or not petitioners were entitled to a way of necessity. When the county court had proceeded in obedience to the command of the circuit court, all that relator could subsequently appeal from was from an. assessment of damages. The right to a way of necessity had been finally and conclusively determined. This is a final judgment.

      JB. L. Matthews and Joseph G. McAtee for respondents.
    It is apparent from reading section 10440, Revised Statutes, 1909, that the Legislature intended that in road matters final judgments could only be entered by the county court. The power of the circuit court is limited, as it expressly prohibits it from appointing commissioners, and the appointment of commissioners is merely interlocutory — likewise the qualifications of the commissioners and their assessment of damages. The final judgment can only be made when the amount assessed has been paid into the county treasury for the use and benefit of the owner of land, appropriated. This is provided by section 10454, Revised Statutes, 1909. The language of this section is specially significant. It provides “if any owner of real estate against whom final judgment has been given as designated in the preceding section,” showing clearly that the final judgment contemplated shall be made after the appointment of commissioners and the expiration of the time allowed for fencing. It has been repeatedly held in Missouri and other jurisdictions that tlife appointment of commissioners in a condemnation proceeding is merely interlocutory and in no sense a final judgment. It has also been held in Missouri that the decision of a nisi prius court upon the nature and character of the proposed use is likewise merely interlocutory. It is pertinent at the outset to ask the question, “what is a final judgment 1 ’ ’ A large number of definitions can be given. A final judgment must appear to be in favor of one party and against the other. It must purport to be the actual and absolute sentence of the law as distinguished from a mere finding that one of the parties is entitled to a judgment. Black on Judgments, sec. 3; State v. Sutterfield, 54 Mo. 394; Eailroad v. Eailroad, 94 Mo. 542; Stickler v. Tracy, 66 Mo. 465. A judgment, though upon the merits or determining some substantial right, which leaves necessary further judicial action before the rights of the parties are settled, is not final. 1 Freeman on Judgments, sec. 16; State ex rel. v. Klein, 140 Mo. 510; State ex rel. v. Woodson, 128 Mo. 513; Eailroad v. Express Co., 108 N. C. 24; Pfeifer v. Crane, 89 Ind. 485. The rule that an appeal lies only from a final judgment, order or decree, seems to prevail throughout the states; and that it cannot be taken upon an interlocutory order unless expressly allowed by statute. A judicial decision is essential as the foundation of an appeal. Powell, Appellate Procedure, sec. 367. The policy of the laws of the several states and of the United States, is to prevent unnecessary appeals. The appellate courts will not review cases by piecemeal. The interests of litigants require that cases should not be prematurely brought to the higher courts. The errors complained of may be corrected in the courts in which they originated; or the party injured might, notwithstanding the injury, have final judgment in his favor. If a judgment, interlocutory in its nature, were the subject of appeal, each of said judgments rendered in the case could be brought before the appellate courts, and litigants harassed by useless delay and expenses and the courts burdened with unnecessary labor. 1 Freeman on Judgments, sec. 33. Not even by agreement could parties take an appeal to the Supreme Court unless there is a final judgment. Shroyer v. Lawrence, 9 Ind. 322; Wingo v. State, 99 Ind. 343; Elliott on Roads and Streets (3 Ed.), sec. 413; Railroad v. Railroad, 94 Mo. 535. The finding of the circuit court that the property sought to be appropriated from relator constituted a way of necessity, was a decision of but one issue in the case, and consequently not a final determination. Express authority for this statement is to be found in the case of State ex rel. v. Engelman, 106 Mo. 628; State ex rel. v. Edwards, 104 Mo. 125; Luxton v. North River Bridge Co., 147 U. S. 337; Telephone Co. v. Railroad, 87 Ya. 349; Ludlow v. Norfolk, 87 Ya. 319. The order of a county court appointing commissioners to ascertain what would be a just compensation to the plaintiff in error for establishing a road across a strip of ground owned -by it was not a final order and the appeal therefrom to the circuit court was improvidently awarded and should have been dismissed. Richmond T. & P. R. Co. v. Johnson, 38 S. E. (Va.) 195; Village of St. Johnsville v. Smith, 61 App. Div. N. Y. 380; Railroad v. Newton, 133 N. C. 132; Aull v. Day, 133 Mo. 347; Walker v. Walker, 119 Mo. App. 503. It is plain that relator has misconceived its remedy. Prohibition will not lie in a case of this kind, as any party aggrieved has a full remedy by appeal ' to the circuit, where the case is tried anew. The action of the county court, therefore, in the present instance, is not a usurpation of judicial authority, but at most error for which the proper remedy of the party aggrieved is by appeal. State ex rel. v. Seay, 23 Mo. App. 623. The county court has power to hear and determine petitions in condemnation proceedings, and while that jurisdiction is statutory and limited, the law provides ample means to prevent its erroneous exercise, as it is settled that appeals lie from its judgments in such proceedings. And while proceedings before the county court are pending, this court cannot determine whether its ultimate action will result in a judgment beyond its jurisdiction. It follows that the writ must be denied. State ex rel. v. Heege, 39 Mo. App. 49. If, at any stage of the proceeding, it appeared that the proposed use was not a public one (way of necessity), the appropriation of property would be denied. Shoppert v. Martin, 137 Mo. 455; Railroad v. Railroad, 94 Mo. 535.
   KENNISH, J.

This is an original proceeding by • prohibition. Upon the filing of the petition a preliminary rule in prohibition was granted as prayed, and for return respondents filed a general demurrer to the petition. Relator is the United Railways Company of the city of St. Louis. The respondents áre the judges of the county court of St. Louis county, and three commissioners appointed by the said court in the matter of a proceeding for a private road petitioned for through relator’s land.'

It appears from the facts stated in the petition, and admitted by the demurrer, that the McDermott Realty Company and John W. Bellairs (hereinafter referred to as petitioners), after having given due notice to relator, filed a petition in the county court of St. Louis county, asking for the establishment of a private road through relator’s land to a public road. Upon the presentation of the petition to the county court, relator filed objections thereto which, upon a hearing, were sustained and the petition denied. The petitioners appealed to the circuit court. The record before us does not contain the objections filed in the county court, nor the judgment of the court denying the petition, and we are left in the dark as to the character of the judgment from which the petitioners appealed. However, in the view we have taken of the case, we do not regard this omission as important.

The case was tried on appeal in the circuit court and judgment rendered that “the petition of the petitioners for a private road be and is hereby granted, and that these proceedings be now remanded to the county court of the county of-St. Louis for the appointment by that tribunal of three disinterested commissioners to view the premises and mark out said private road and assess the damag’es to the owner or owners of the land through which it will pass, and make report to said county court as required by law, and for such other and further proceedings in and by said county court as provided by law.” Prom the judgment of the circuit court'relator appealed to this court and filed a supersedeas bond in the sum of one thousand 'dollars. After the cause was remanded to the county court for further proceedings in conformity with the judgment of the circuit court, the county court appointed commissioners to view the premises, mark out the road, etc., whereupon relator applied for and obtained from this court the preliminary rule in prohibition against the judges of the county court and the commissioners so appointed, prohibiting them from entertaining or exercising further jurisdiction in the cause until the appeal of the said relator from the judgment of the circuit court to this court should be finally determined, and that respondents be required to show cause, if any they have, why said writ of prohibition should not be made perpetual.

By filing the demurrer to relator’s petition, respondents challenge relator’s right to the writ of prohibition upon the facts stated, and the issue of law is thus raised, Was the county court acting within its jurisdiction, in the proceeding to establish the private road petitioned for, at the time of the issuance of the preliminary rule by this court? It is the settled law of prohibition that the writ will be issued to restrain and prohibit an inferior judicial tribunal from entertaining and exercising jurisdiction in a cause, upon a showing that such tribunal is assuming to act judicially in a matter in which it is without jurisdiction, and if there was a want of jurisdiction in respondents, as judges of the county court, to act judicially in the matter complained of in the petition and under the facts as therein stated, then relator was entitled to the writ. [Morris v. Lenox, 8 Mo. l. c. 253; State ex rel. v. Stobie, 194 Mo. 14; State ex rel. v. Tracy, 237 Mo. 109.]

There is no disagreement between the parties hereto as to the exclusive original jurisdiction of the county court in a proceeding for the establishment of a private road. The controverted propositions are as to (1) the right of the petitioners to an appeal to the circuit court from the judgment of the county court dismissing the petition; (2) the section of the statutes under which an appeal is allowed, if at all, in such a case; and (3) the effect of such an appeal as to the subsequent proceedings in the cause.

The statutes to be considered in determining the questions thus presented are sections 10440’, 3966 and 4091, Revised Statutes 1909, and, so far as material, are as follows:

“Sec. 10440. Appeals to the circuit court shall be allowed either party from the judgment of the county court assessing damages, or for opening, changing or vacating any road, and upon such appeal the circuit court shall proceed to hear and determine the same anew; but no commissioner shall be appointed by the circuit court, nor shall any appeal, prior to the determination thereof in the circuit court, operate as a supersedeas of the proceedings of the county court. . . .
“Sec. 3956. The circuit courts in the respective' counties in which they may be held shall have power and jurisdiction as follows: . . . Fourth. Appellate jurisdiction from the judgments and orders of county courts, probate courts and justices of the peace, in all cases not expressly prohibited by law. . . .
‘ ‘ Sec. 4091. In all cases of appeal from the final determination of any case in the county court, such appeal shall be prosecuted to the appellate court in the same manner as is now provided by law for the regulation of appeals from justices of the peace to the circuit courts, and when any case shall be removed into any court of appellate jurisdiction by appeal from a county court, such appellate court shall thereupon be possessed of such cause, and shall proceed to hear and determine the same anew, and in the same manner as if such cause had originated in such appellate court, without regarding any error, defect or informality in the proceedings of the county court.”

When the county court denied the petition and dismissed the proceeding for the private road, that action was a final judgment against the petitioners, and they were clearly entitled to an appeal to the circuit court. [Sec. 3956, R. S. 1909; Colville v. Judy, 73 Mo. 653; Fitzmaurice v. Turney, 214 Mo. 610; Cox v. Tipton, 18 Mo. App. 450.] It is material in the decision of this case to determine whether such right of appeal existed and the appeal was allowed under the provisions of section 10440 or of section 3956. For, if under the former, the circuit court, upon trial anew, is expressly denied the power to appoint the commissioners, such power remaining exclusively in the county court. But if the appeal was taken by virtue of said section 3956 then, under section 4091, the circuit court became possessed of jurisdiction to try the case anew, “in the same manner as if such cause had originated in such appellate court, without regarding any error, defect or informality in the proceedings of the county court.” An inspection of these several statutes makes it apparent that if section 10440 was not applicable, then the circuit court was unrestricted as to the appointment of commissioners upon a trial de novo, and, as under the express provisions of section 4091, the circuit court was required to try the case as if it had originated in that court, the appeal completely divested the county court of all jurisdiction and vested the same in the circuit court, with full power to proceed and to take all steps necessary to a final determination of the cause.

The learned circuit judge who tried the case on appeal from the county court held, as shown by a memorandum filed in the case and set out in respondents’ reply brief, that an appeal from the county court to the circuit court, in a private road case, is now.governed by section 10440-, and remanded the case to the county court for the appointment of commissioners and such further proceedings in said county court as are required by law. In this view of the law we cannot concur. Until the revision of 1879 the public road law and private road law were placed in separate articles of the statutes. [See Wagner’s Statutes 1872, chap. 120, arts. 1 and 2.] What is now section 10440 was then found in the article applicable to public roads, but not in the private road law. In that revision the entire road law, both as to public and private roads, was placed in one chapter, but not in separate articles as before, and so it has remained through all subsequent revisions. Although placed in the same chapter and article since 1879, all of the provisions of the law as to each kind of road are found connectedly and separately in the statutes, forming two systems, and the provisions of one are not made applicable to the other.

In the case of Colville v. Judy, 73 Mo. 653, decided in 1881, this court held that an appeal from the county court to the circuit court, in a proceeding for the establishment of a private road, was allowed, not under what is now section 10440, but by authority of section 3956.

If no amendment has been made to section 10440, since the decision in the Colville Case, that would broaden its scope so as to include appeals in private road cases, it must follow that the appeal from the judgment of the county court was not governed by the provisions of that section. The only amendment that has been made to section 10440, since the Colville Case was decided, was that of 1909. Prior to that amendment the law had existed unchanged for a period of nearly forty years, and was as follows:

“In all cases of appeals being allowed from the judgment of the county court, assessing damages, .or for opening, changing or vacating any road, the circuit court shall be possessed of the cause, and shall proceed to hear and determine the same anew; but no commissioner shall be appointed by the circuit court, nor shall any appeal prior to the determination thereof in the circuit court operate as a supersedeas of the proceedings of the county court.” [Laws 1871, 1872, p. 148; Sec. 9419, R. S. 1899.]

Under the law as it then stood, this court-held that an appeal would lie in a public road case only from a judgment of the county court “assessing damages or for opening, changing or vacating any road,” and would not lie from a judgment refusing to open, change or vacate such road. [Aldridge v. Spears, 101 Mo. 400; In re Big Hollow Road, 111 Mo. 326.] The petitioners were thus denied an appeal from an adverse judgment in the cases mentioned, except from a judgment assessing damages. By the amendment of 1909 either party was given the right of appeal from such judgments, but such right of appeal remains only as to judgments “assessing damages, or for opening, changing or vacating any road.” The right was not extended except as to the parties entitled to an appeal. The words ‘ ‘ any road, ’ ’ as used in section 10440, in connection with the judgment from which an appeal is provided for, were not intended to include" a private road, for they were in the law when the Colville Case arose and have remained there until the present time. The section as amended retains its former place as a part of the public road law, and no changes were made by the amendment indicating an intention to extend its scope so as to include the case of a proceeding for the establishment of a private road.

Our conclusion is that an appeal in a private road case is still authorized by section 3956, and not by the section governing appeals under the'public road law. It follows that when the circuit court became possessed of jurisdiction on the appeal of the petitioners, it had complete and exclusive jurisdiction to proceed therein to a final determination of the case. No part of the jurisdiction remained in the county court for any purpose. And as the county court was not authorized to appoint commissioners or to exercise' any jurisdiction whatever in the matter after the appeal to the circuit court, it was, under the facts stated in the petition, attempting to act judicially in a matter in which it was without jurisdiction, and the relator was entitled to the writ.

The preliminary writ prohibited respondents from entertaining or exercising jurisdiction in the matter of the petition for a private road as described “until the appeal of. said relator from the judgment' and decision of the said circuit court to the Supreme Court of said State be finally ended and determined in said Supreme Court,” etc. In accordance with the views herein expressed, the preliminary writ is modified so as to perpetually prohibit the respondents from entertaining or exercising any jurisdiction whatever in said case.

The preliminary writ, as modified, is made perpetual.

All concur.


author: LAMM, J.

text:
    THE STATE ex rel. FRANK M. RUMBOLD, Adjutant-General, v. JOHN P. GORDON, State Auditor.
    In Banc,
    December 16, 1911.
    1. MANDAMUS: Practice: Petition for Writ: Motion for Judgment. Where respondent in mandamus makes return without service of the writ, the petition is taken as and for the writ; and if thereupon, the return coming in, relator moves for judgment on the pleadings,- such motion is in the nature of a demurrer to the return; relator thereby, barring mere legal conclusions, inferences and comments in the return, electing to stand on the admissions, and allegations of .fact well pleaded in the return.
    2. SALARY OF OFFICER: Increase: No Fixed Term. A statute declaring “the Governor shall appoint the Adjutant-General, who shall hold office during the term of the Governor and may be removed by him at his pleasure,” does not fix any term to the office, does not give it either a definite time of beginning or ending, but makes the tenure dependent on the Governor’s pleasure, and therefore the constitutional provision that says “the compensation or fees of no State, county or municipal officer shall be increased during his term of office” does not apply. The General Assembly has the power to increase the salary of the Adjutant-General from $2000 to $2500 during the time he holds office under appointment of the Governor,, and an incumbent of the office who had been appointed while the salary was $2000 and continued in office until after the act increasing the salary to $2500 became effective is entitled to receive the increased salary.
    3. TERM OF OFFICE: At Pleasure. An officer who may be removed at the pleasure of the Governor has no certain fixed term of office. The statute declaring that the Adjutant-General shall hold office “during the term of the Governor and may be removed by him at pleasure” means that at most he can hold only for . such time as the Governor does, but may be removed at any time. So interpreted no part of the statute perishes, but all the words are given a natural meaning. The Adjutant-General does not have a “term of office” in the constitutional sense.
    Mandamus.
    Writ awarded.

      Harvey G. Ciarle, Arthur L. Oliver and Allen C. Orricle for relator.
    (1) The General'Assembly is vested with power to provide for the office of Adjutant-General and to fix the status, compensation and term of the incumbent. The Militia Act of 1905, under which relator was appointed and held office, having been repealed, section 8 of article 14 of-the Constitution does not deprive him of his right to draw the salary fixed by the present law, which provides for an Adjutant-General with qualifications, duties, status and compensation different from those prescribed in the repealed law. He is not within the inhibition of the above named section of the Constitution because: First. Irrespective of .the power of the General Assembly to abolish the office, the act repealing the Act of 1905 and reorganizing the National Guard and which incidentally increased the compensation of the relator, does not prevent his drawing the increased salary, because such incidental increase is not in violation of the letter and spirit of the section of the Constitution relied upon by the respondent. Sec. 8, art. 14, Constitution; State ex rel. v. Ransom, 73 Mo. 89; State ex rel. v. McGoonney, 92 Mo. 248; 23 Am. and Eng. Ency.- Law, 407. Second. With the repeal of the Act of 1905 under which he was appointed and commissioned, relator’s office under such statute was abolished and he now holds office under and by virtue of an appointment under section 8334 of the present law which is another and different office, requiring different qualifications and duties and in which the status and compensation of the incumbent are. different. (2) In paragraph 15 of his return, respondent sets up the alleged failure of relator to qualify by filing his bond within a certain time, etc. Relator’s title to this office cannot be determined in a mandamus proceeding to compel the payment of his salary. State ex rel. v. Churchill, 41 Mo. 41; Meehem on Public Officers, 265. (3) If, as respondent contends, the repeal of the Act of 1905 under which relator held office did not terminate his incumbency of such office, then his resignation did have that effect and he is not prevented by the Constitution from drawing’ the salary of the office created under section 8334 to which he was appointed. If, as respondent contends, -relator holds office under the appointment made pursuant to the provisions of section 4 of the Act of 1905, he does not fall within the inhibition of section 8 of article 14 of the Constitution for the reason that he was not and is not an officer within the meaning of this provision, not having a fixed, certain and definite term of office, but holding during the pleasure of the Governor. 23 Am. and Eng. Ency. Law, 404. The word “term” used with reference to the tenure of offices means a fixed and definite time and does not apply to appointive offices held at the pleasure of the appointing power. Throop on Public Officers, sec. 303; Speed v. Crawford, 3 Met. (Ky.) 207; In re Baty, 52 N. Y. 871; Gibbs v. Morgan, 39 N. J. Eq. 126; City of Lexington v. Remick, 50 S. W. (Ky.) 1106; Somers v. State, 58 N. W. 804; State ex rel. v. Stonestreet, 99 Mo. 371; State ex rel. v. Johnson, 123 Mo. 43; Summers v. State, 5 S. D. 321.

      Elliott W. Major, Attorney-General, and Cha,rles O. Bevelle, Assistant Attorney-General, for respondent.
    (1) The State militia and the office of Adjutant-General are creatures of the Constitution, and made permanent branches of the State-government. They cannot be abolished by the Legislature, and that body has never so attempted. Constitution 1865, sec. 1, art. 10; State ex rel. v. Hawes, 177 Mo. 360; Constitution 1875, art. 13, sec. 6. By this article the State militia and the office of Adjutant-General were made a permanent part of the State government, and it is no more within the power of the Legislature to abolish them than it is to abolish the Supreme Court, or the offices of its members, or to deprive it of the jurisdiction conferred by section 3, article VI in cases of quo warranto (State ex rel. v. Standard Oil Company, 218 Mo. 346), or to remove an officer from office (State ex rel. v. Gordon, 238 Mo. 142), or to provide that some person, other than the Governor, shall appoint the Adjutant-General (State ex rel. v. Gordon, supra). The addition of section 6 to the organic law in 1875 is' significant and was made for a purpose. Section 7, article 5 of the Constitution also recognizes the permanency, and necessity of the State militia as a governmental institution, and makes it a means and agency to preserve order and execute the law. It is no more within the power of the Legislature to cripple the executive arm and deprive the Governor of this means of executing his power and prerogatives than it is to take from this court the means and power of enforcing its lawful orders and decrees. State ex rel. v. Stone, 120 Mo. 428; State ex rel. v. Shepard, 177 Mo. 238. (2) Relator was appointed for a fixed term of office, beginning on the second Monday in January, 1909, and ending on the second Monday in January, 1913, and section 8, article 14, of the Constitution precludes him from recovering an increased compensation during that period. The Adjutant-General is required to take an official oath, give an official bond, and can be called to account, as a public officer, for misfeasance or nonfeasance in office. He is on a regular salary basis, and has continuing public duties, the nature and performance of which are prescribed by law and not by contract. He is an officer within the meaning of that term, and as the same is used in the Constitution. State ex rel. v. May, 106 Mo. 507; State ex rel. v. Mason, 153 Mo. 23; City of Brookfield v. Tooey, 141 Mo. 619; State ex rel. v. Maroney, 191 Mo. 545; 23 Am. and Eng. Ency. Law, 435 ; 29 Cye. 1371, 1396; State ex re] v. Hawes, 177 Mo. 360. It necessarily follows that if the Legislature had intended that relator should not have a fixed term of office, as those words are understood and defined, and was to Be appointed as a mere-locum tenens, it would not have expressly stated that which would have been the law in the absence of such a statement, viz.: that he could be removed" at the pleasure of the appointing power. It is also well established that where a statute attaches to an office a fixed term and the officer is appointed for that term, and when the power of removal is not expressly declared by that particular law to be discretionary, such officer is not removable, except for cause. State v. City of St. Louis, 90 Mo. 19; Hallgreen v. Campbell, 82'Mich. 235 ; State ex rel. v. Maroney, 191 Mo. 549’. (3) The legislative Act of 1909 did not have the effect of ending or abridging relator’s term and did not affect his status as an officer. The State militia and the office of Adjutant-General a^e created by .the Constitution, and are made a permanent branch of the State government, being placed wholly beyond legislative destruction. By the Act of 1909, revising ■ and amending the law on this subject, the Legislature, therefore, did not intend, and it was not within its power, to abolish relator’s office. 23 Am. and Eng. Ency. Law 4101; Farr el v. Pingree, 5 Utah, 443; Bird v. Johnson, 59 N. J. L. 59; Moss v. Fitch, 212 Mo. 484; Peters v. Auditor, 33 Gratt. 368 ; State ex rel. v. Haskell, 5 Cal. 357; State ex rel. v. McKinney, 52 N. T. 374; State ex rel. v. Ferguson, 62 Mo. 77; .State ex rel. v. Thompson, 41 Mo. 25; State ex rel. v. May, 106 Mo. 488; Brookfield v. Tooey, 141 Mo. 619. (4) If the Act of 1909 were construed to affect his term or incumbency, he is, nevertheless, holding as a locum tenens under his original appointment, and can avail himself of no provision of this act. Even if it were possible to contend that the act had the effect to end his term, he is still holding over under and in pursuance of his original appointment, because he has at no time lawfully and in' good faith resigned, nor has he been removed from office, nor has he been legally reappointed or qualified. Even upon this theory, his compensation could not be increased. State ex rel. v. Smith, 87 Mo. 158. (5) Relator’s pretended resignation and reappointment had no legal force, and is unavailing as a means to evade the fundamental law. Larew v. Newman, 81 Cal. 588; Green v. Freeholders, 44 N. J. L. 388; 23 Am. and Eng. Ency. Law, 401. (6) By reason of his failure to qualify under the alleged new appointment, he can enforce no demands thereunder. 23 Am. and Eng. Ency. Law, 354, 355; People v. Whitman, 101 Cal. 38; Hull.v. Sup. Ct., 63 Cal. 174; Wells v. Atlanta, 43 Ga. 77; Poster v. Justices, 9 Ga. 185; Jones v. Gridley, 20 Kan. 590; Jump v. Spence, 28 Md. 1; George v. School District, 6 Met. (Mass.) 497; Oregon v. Colvig, 15 Ore. 57; Commonwealth v. Slifer, 25 Pa. St. 23. In this connection, it is also well established that an officer who has not complied with the requirement, as to giving bond, cannot recover compensation for services rendered in his official capacity. 23 Am. and Eng. Ency. Law, 355; Payne v. San Francisco, 3 Cal. 122; Albaugh v. State, 145 Ind. 356; State v. Schram, 82 Minn. 420; State v. McLeod County, 27 Minn. 90; Mc-Veany v. New York, 80 N. Y. 185; Wiley v. Worth, 1 Phil. L. (61 N. C.) 171; State v. Eshelby, 1 Ohio Cir. Dec. 592; Commonwealth v. Slifer, 25 Pa. St. 23; Riddle v. Bedford County, 7 S. & R. (Pa.) 386; Philadelphia v. Given, 60 Pa. St. 136; Kottman v. Ayer, 3 Strobh. L. (S. C.) 92; McBee v. Hoke, 3 Spears’s L. (S. C.) 138; Thomas v. Owens, 4 Md. 189.
   LAMM, J.

Relator, contending his salary as Adjutant-General is $2500 per annum, and respondent, State Auditor, contending it is but $2000 per annum, sues by mandamus to compel an audit and payment of his salary at the former figure. Respondent appears without service of an alternative writ and makes his return. By that course the petition stands as and for the writ itself for the purposes of the case and the return. On the return coming in, relator filed a motion for judgment on the pleadings. Such motion is in the nature of a demurrer to the return. Thereby (barring mere legal conclusions, inferences and comments in the return) relator elects to stand on the admissions, and allegations of fact well pleaded in the return. They are taken as true and all allegations of the petition sufficiently traversed by the return are taken as false.

Attending to respondent’s return, it appears therefrom there is a main question which if ruled in favor of respondent, then (and not till then) other questions raised by the return demand determination. If, however, it be ruled in favor of relator then such other questions have no place in the case and may be laid out of view, as will presently appear. Before formulating that main question we shall state those admissions and averments of the return on which it arises, viz.:

The return admits, to-wit:

(1) That the Forty-sixth General Assembly passed an act approved by the Governor with an emergency clause, putting it into effect March 15, 1911, whereby $5000 was appropriated to pay the salary of the Adjutant-General for the years 1911 and 1912. [Laws of 1911, p. 32, sec. 8.]

(2) That there are funds in the treasury available to pay said appropriation.

* (3) That in 1909 an act was passed fixing the salary of the Adjutant-General at the sum of $2500 per annum, payable monthly. [Laws 1909, p. 674, sec. 3; E. S. 1909, sec. 8334.]

(4) That prior to that, in 1905, an act was passed making the salary of the Adjutant-General $2000 per annum, payable monthly. [Laws 1905, p. 221, sec. 4.]

(5) That the same section 4 provides in its final clause that: “The Governor shall appoint the Adjutant-General and his honorary staff, who shall hold office during the term of the Governor and may be removed by him at his pleasure. ’ ’ It also provides that the staff of the Governor shall consist of an Adjutant-General and other named officers,- and that he (the Adjutant-General) “shall be the military secretary to the Governor.”

(6) That relator was duly appointed and commissioned Adjutant-General of the State on the 11th day of January, 1909, on that day qualified and (quoting) “entered upon the discharge of his official duties as Adjutant-General under such appointment and commission . . . and has been filling said office of Adjutant-General and acting as such officer continually from said 11th day of January, 1909, to the present time.”

(7) That relator was so appointed and commissioned under said Act of '1905, fixing his salary at $2000 per annum, and that his appointment was for a certain fixed and definite time, to-wit, four years after the second Monday of January, 1909.

(8) That, the premises considered, his salary could not be legally increased during his said official term because of a constitutional interdiction (Constitution, sec. 8, art. 14), viz.: “The compensation or fees of no State, county or municipal officer shall be increased during his term of office; nor shall the term of any office be extended for a longer period than that for which such officer was elected or appointed.”

(9) That the Legislature was without power to increase relator’s salary during his said term.

(10) That relator presented to respondent his accounts for a certain three months in 1911 for $625 (i. e., on a salary basis of $2500'), whereupon respondent made no objection thereto except to the amount, which said amount should have been on a salary basis of $2000 per annum instead of $2500.

(11) The. return further alleges, to-wit: “Respondent states that relator has not been removed from office, but has acted continuously as the Adjutant-General of the State of Missouri from the 11th day of January, 1909, to the present time and is now Adjutant-General of said State.”

Such are the admissions and averments of the return from which the main ' question spontaneously springs, viz.: Is the Adjutant-General of the State of-Missouri an officer of the class coming within the words and intendment of the constitutional provision invoked? If he is not, then the constitutional bar can not be put up in the way of an increase in his salary. If he is, then, as said, other questions are sprung for decision.

Attending to the main question, its answer finds itself in the very words and intendment of the Constitution. Those words are common to many Constitutions. They were carefully chosen, have been frequently under judicial scrutiny, and have received a definite judicial construction, as will be seen further on. Observe, the Constitution does not say that the salary of no officer can be increased at any time. It says such salary shall not be increased during a certain time or while a certain thing lasts. What is that time or thing? It is “his term of office.” Therefore the officer in mind is not any officer, but is one of a definite kind, one who has an official term. If an officer has no “term of office” he,does not measure up to the constitutional subject-matter and is not within the words or intendment of the Constitution. Undoubtedly the Adjutant-General is an officer and has an office, but has he a “term of office?” Or, to turn the phrase end for end, to let it interpret itself, has he an office with a term? In the nature of things there cannot be a term of office unless the office has a term. The idea is fortified by the constitutional interdiction against lengthening a term of office; for it is a logical absurdity to speak of not extending a term of office unless the term exists to extend.

A “term,” at root, is the same as terminus, a boundary limit, and there can be no boundary limit without a fixed or certain beginning and a fixed or certain ending. A serviceable sidelight is thrown on the matter by reference to some familiar principles of real estate law. The word term is of common use in conveyancing. A lease for years is a term, and before an estate for years can be a term it must have a certain beginning and a certain ending, its duration must “be measured by fixed periods, as by years, months, weeks, etc.” [2 Preston on Conveyancing, p. 158.] Again [Ibid, 159, et seg.] : “"When it is said, ... in the language of Lord Coke, ‘regularly in every lease for years, the term must have a certain beginning and a certain end,’ this is to be understood in its legal and technical sense. The only circumstance required in limitations of terms for years is, that a precise time shall be fixed for the continuance of the terms; so that when the commencement of the term is ascertained, the period of determination, by effluxion of time, may be known with certainty.” [Idalia Co. v. Norman, 232 Mo. l. c. 670, et seg.] So, agreeably to the same end, it is good doctrine that the maxim, That is certain which can be made certain (Id certam est, etc.), is applied in resolving any doubt on whether a term is granted. Thus, if the beginning is certam, and if the end can be made certain by reference to some mentioned certainty, a term is granted. By the same token a lease without -a term creates a tenancy at will, unless by reservation of annual rent it may be construed' on equitable principles as a lease from year to year. [See Idalia Case, supra.]

But the matter need not rest on mere parity of reasoning’. Says a sound author (Mechera’s Public Offices and Officers, sec. 385): “The word ‘term,’ when used in reference to the tenure of office, means ordinarily a fixed and definite time, and does not apply to appointive offices held at the pleasure of the appointing power. ’ ’

In accord therewith in another standard work (Throop on Public Officers, sec. 303): “The word ‘term’ is uniformly used to designate a fixed and definite period of time. . . . And an officer, who holds his office at the pleasure of another officer . . . has no official term, within the meaning of a constitutional or statutory provision relating to such term. ’ ’ Again (Sec. 304): “Where an office is filled by appointment, and a definite term of office is not fixed by a constitutional or statutory provision, the office is held at the pleasure of the appointing power, and the incumbent may be removed at any time.”

In other States appellate tribunals seem in uniform accord with the texts of the quoted authors: Vide, Speed v. Crawford, 60 Ky. (3 Met.) l. c. 213. In re Batey, 52 N. Y. Supp. l. c. 872; Gibbs v. Morgan, 39 N. J. Eq. 126.

In City of Lexington v. Renick, 105 Ky. l. c. 779, in discussing an equivalent constitutional provision the court adopts the cited text from Mechem (p. 783). The Kentucky Constitution is leveled at any change in the compensation of an officer ‘ ‘ during his term of office. ’ ’ In interpreting that provision the court in that case said: “It was designed to protect an officer during his term in the enjoyment of the compensation attached to it when he was elected, and to prevent his appealing to the city authorities for more; but it can have no -reasonable application to an officer who may be turned off at pleasure, because if the city may turn him off, and then hire him or somebody else any day at another price, we see no reason why it may not reach the end directly, and cnt Ms salary down in the first place. Such constitutional provisions are common, and are uniformly, so far as we have seen, confined to officers having definite terms.”

The inquiring student may further consult Somers v. State, 5 S. D. l. c. 325; Ida, etc., Bank v. Seidensticker, 92 N. W. (Iowa) l. c. 866; Crovatt v. Mason, 103 Ga. l. c. 254; State ex rel. v. Breidenthal, 55 Kan. l. c. 312; State ex rel. v. Tallmann, 24 Wash. l. c. 430.

“A term of office,” says the Court of Appeals of New York, speaking through Church, C. J., “is a fixed period prescribed for holding the office.” [People v. Brundage, 78 N. Y. l. c. 407.]

Speaking to a kindred matter, the Supreme Court of Maryland in Field v. Malster, 88 Md. l. c. 695, says: “The power of removal is essentially incident to and included in the power to terminate the tenure of an officer, and the power to terminate a tenure is inseparable from a holding at the pleasure of another.” Further along, in defining a term of office and applying that definition to the facts in judgment, it is said in the same case: “The beginning of the term is fixed; the time when the successors of the incumbents shall enter is also fixed, and this marks the end of the term; and the selections are to be made biennially, and this designates the duration of the term. Every element that is necessary to make a definite term is present— the beginning, the end and the duration.”

In full accord with the general doctrine of the cited cases are our own appellate courts. [State ex rel. v. Alt, 26 Mo. App. l. c. 675-6 (arguendo); State ex rel. v. Stonestreet, 99 Mo. l. c. 371, et seg.] In State ex rel. v. Johnson, 123 Mo. 43, relator Kane, chief of the fire-department of St. Joseph, had his salary increased. He held office during the pleasure of the city council. In holding that the constitutional inhibition did not apply, we said (p. 49): “It will be. observed that this section of the Constitution only embraces within its provisions officers who are elected or appointed for some specific or definite time, and that it has no application whatever to the case in hand, when the relator’s term of office is not fixed by any law or ordinance and he simply holds at the pleasure of the appointing power. This is manifest from the fact, that it also provides that the term of office shall not be extended for a longer period than that for which such officer was elected or appointed. The relator was not elected, nor was he appointed for any definite time. There does not seem to be room for argument in regard to the proper meaning of this section, so plain is it in its construction. ’ ’

The gist of the holding is put by our reporter in the first paragraph of the head-notes, viz.: “A city officer appointed by the council and subject to removal by it at pleasure is not an officer within the meaning of the Constitution, article 14, section 8, prohibiting the increase of the salary of an officer during his term of office.”

Indeed in every decided case coming under my eye, in which we held the constitutional provision did apply, the officer had a fixed and definite term of office, 'and if subject to removal at all it was only for cause shown, on a hearing in which he was entitled to due process of law in the form of a notice and charges preferred.

Recognizing the precision of definition judicially indulged in the exposition of the constitutional provision now up, as already indicated, we now come to a closer view of the case and to the application of the doctrines announced to the facts in judgment. The final question is: Considering the terms of the law of 1905 under which relator was appointed, does he have a “term of office” in a constitutional sense? Clearly no. . The statute provides that the Adjutant-General shall be appointed by the Governor, that he shall be military secretary to the Governor and that he “shall hold office during the term of the Governor 'and may he removed by him at his .pleasure.” If the statute had said he should hold office “during the term of the Governor” and had broken off át that point we would have a different case to deal with. In such case his term would have the same boilndaries as the Governor’s term. By referring to this certainty, the term of the Adjutant-General would be made certain and the maxim, id cerium est, would control the situation. But the law does not break off there and neither should we in the exposition of it. It goes on to say in the same breath that the Governor may remove him at “his pleasure.” The Governor’s breath, under the law, made him, and the Governor’s breath is left to unmake him. The appointing power has left to it the disappointing power unchecked, free of limit in time, place or circumstance. No man who holds office at the pleasure of another can. be said to have a certain fixed term of office. The two ideas are radically antagonistic and in right reason they cannot both apply at the same time to the same thing. The Governor’s “pleasure” has no fixed bounds discernible to the judicial eye.

It seems to us that the cited authorities directly apply to the situation thus presented; for the sum of the matter is that any one that holds office at the pleasure of the appointing power has no “term of office” in the sense that phrase is used in the Constitution. This view of it does not make the words “hold office during the term of the Governor” perish by construction. Those words are still left as a legislative direction that in any and all events the military secretary of the Governor shall step down and out with the Governor himself. The Governor is the commander in chief of the National Guird by virtue of his office, and when he lays down his official sword his military secretary must lay down his official pen. The construction given but makes the whole law alive by giving some sensible office to all its words.

Hitherto, we take it, such has been the administrative policy in dealing with a legislative increase of salary where the officer interested holds his office during the pleasure of the appointing power.

Let us put one case as an example. The statute authorizes us to appoint a librarian. The condition is such that he holds under our pleasure. Twice during the present librarian’s official life his salary has been increased by the General Assembly, once from nine to twelve hundred dollars (Laws 1905, p. 304), and again from twelve to fifteen hundred dollars (Laws 1907, p. 355). In each instance he has been allowed to take, as was right, his increased salary.

Our learned Attorney-General makes an ingenious argument against such construction. As we grasp it his contention is that relator’s term of office has a fixed and definite tenure, to-wit, that.of the Governor, and that the removal part of the statute brings into view a new and independent matter, viz., the power of removal which may be exercised at pleasure. But we do not think a fair construction of the law allows it to be taken apart and then joined together so as to make of it two independent provisions. The clause in hand is inseperable, relates to the same subject-matter and what the Legislature hath joined together we ought not put asunder. Our conclusion is an absolute writ of mandamus should go on the return of respondent.

As already said this view of the case renders a con-, sideration of other features of the return unnecessary. The statute of 1909 seems to repeal all former militia laws (Laws 1909, p. 673). In those repealed statutes were the provisions for the appointment of an Adjutant-General, prescribing his duties and regulating his pay. Relator had been in office but a short time when that repeal went into effect. The new act provided for the appointment of an Adjutant-General, prescribed (with some of the old) different duties, and an increased pay. It seems relator resigned and was at once reappointed. Our Attorney-General argues that this resignation and appointment were not rendered neecessary on the theory the new act abolished the old office and created a new one. He argues the office was a constitutional office and'could not be abolished by the lawmaker. But we heed not pursue the matter. Respondent alleges in his return that the resignation and reappointment were simulated and for the purpose of getting around the constitutional provision we have been discussing. That it amounted to nothing in fact and left relator always in office. . It is obvious that with a return of that character, demurred to, we confront the fact that for the purposes of this case, whatever the real fact may be, relator has always been Adjutant-General without let or intermission since the day of his original appointment to this very time. Such is the theory of our Attorney-General and that theory on the return here we must adopt and have adopted with the result stated.

An absolute writ of mandamus is ordered to issue commanding the Auditor to audit and allow the claim of the Adjutant-General to an annual salary of $2500, payable monthly. Such writ will make effective the plain legislative intent evidenced by the Appropriation Act of 1911.

All concur.