text:
    FRANCIS P. WILLIAMS, by his Next Friend, JOHN T. WILLIAMS, v. SPRINGFIELD GAS & ELECTRIC COMPANY, Appellant.
    Division One,
    March 29, 1918.
    1. ELECTRIC WIRES: Insulation: Utmost Care. An electric company, if reasonably chargeable with knowledge, or of facts making it reasonably probable, that persons may lawfully come into close proximity to its wires, for purposes either of business or pleasure, is obligated to use every accessible precaution to insulate its wires at such places and to use the utmost care to keep them so.
    2. -: -: Knowledge: Children: Anticipation. A public service corporation, stretching its electric wires, in a city, through trees near the roof of a low house which for some time was being constructed and around which small boys played while the construction was going on, must take notice of boyish impulses and anticipate the presence of children in such trees. The rule applies whether or not the company knew that the particular small boy who was injured was in the habit of climbing the tree; the company is required to know the tree, the fact that the wires passed through it, and that, the opportunity being present, it was the kind of tree that children might climb into to play in its branches, since these things any person of practical common sense would know. [Following Temple v. Elec. Co., 89 Miss. 1.].
    3. -: Children: Climbing From Roof to Tree. Nor is the rule inapplicable because the nine-year-old boy did not climb from the ground into the tree where the wires were, but climbed from the roof of a near-by house on which he and other boys had for some time been in the habit of playing. The company is required to anticipate the presence of boys in trees through which their uninsulated wires pass, whether they climb from the ground into the tree or from the roof of a near-by house around which they have been in the habit of playing.
    4. -: -: -: Trespasser. Whether the tree through which defendant’s electric wires ran was on private property or in a public alley, if it was not defendant’s property, a boy who climbed into the tree and was injured by falling on the uninsulated wires, was not a trespasser.
    5. -: -: -: Contributory Negligence: Proximate Cause; The presence of the boy in the tree was not contributory negligence, there being no evidence that he knew that the electric wire upon which he fell was defectively insulated or that he purposely touched it. It cannot be held as a matter of law that the breaking of the limb on which the nine-year-old boy stepped in an attempt to descend from the tree, rather than the non-insulation of the electric wire on which he fell when the limb broke, was the proximate cause of his injury.
    6. INSTRUCTION: Inclusion of Extraneous Matter: Waiver. Appellant waived its right to object to a reference to an extraneous matter in an instruction given for respondent by requesting an instruction including the same matter.
    7. -: Contributory Negligence. Not every omission of a reference to contributory negligence renders erroneous an instruction for plaintiff in a personal injury case. Where the instruction required the jury to find defendant was guilty of acts of positive negligence in leaving the electric wires uninsulated and then required them to find that this negligence was the cause of plaintiff’s injury, and other instructions fully present the issue of contributory negligence, there is no substance in the complaint that this instruction excluded that defense.
    8. REMARKS OF COUNSEL: Excessive Verdict. Where as a result of the injury to the nine-yeay-old boy one of his arms has been amputated below the elbow and his other hand is almost useless, the fingers being burnt and drawn, a verdict for $7500 is far below the amount which the facts would have warranted, and any argument of counsel said to have' affected the size of the verdict was unprejudicial.

      9. -: Greedy Corporation. Plaintiff’s counsel in Ms argument to tlie jury said: “Don’t encourage these wealthy, greedy corporations to justify that which cannot compensate this hoy simply according to law and according to your duty to the law.” Held, that this meaningless and incoherent sentence co.uld not have “distracted the minds of the jury from a calm deliberation of facts,” especially in view of an express disclaimer in other portions of the argument that anything was asked because defendant was a corporation, or because of anything save the law and the evidence.
    Appeal from G-reene Circuit Court. — Hon. Arch A. Johnson, Judge. ,
    Affirmed.

      Delaney & Delaney for appellant.
    (1) No evidence should have been admitted under the petition. Because: (a) On the face of the petition and on the opening statement following the allegations of the petition, it does not appear that the defendant owed any duty whatsoever to the plaintiff, even considering him as an immature child incapable of contributory negligence, (b) On the face of the petition and on the opening statement (to be specific) it does not appear that defendant created, or was responsible for the creation of an attraction to children, or an attractive nuisance, or that a condition existed of which defendant had knowledge or was chargeable with knowledge or notice, or that the conditions existing imposed any duty upon defendant in favor of plaintiff, (c) On the face of the petition and upon the opening statement, defendant was not chargeable with the duty of anticipating that children, or that plaintiff, would- be attracted by the house, scaffold and tree into close proximity to its (defendant’s) wires through the tree, (d) On the face of the petition and on the opening statement, plaintiff was guilty of such contributory negligence as precludes a recovery, (e) On the face of the petition and on the opening statement, the omission of defendant to insulate its wires was not the proximate cause of the injury sustained. (2) The defendant did not owe any duty to plaintiff to install or maintain uninsulated wires. The doctrine of “attractive nuisance,” or “attraction to children” is bottomed upon the principle of the so-called “turn-table” cases. The application of the “turn-table” cases was gradually extended until the principle was lost sight of and a halt was made. The tendency is now to restrict the application and, in many jurisdictions, the principle is confined to turn-table cases pure and simple. This is the general trend. In Missouri especially the courts refuse to extend the principle and restrict liability to literal turntable cases. Kelley v. Benas, 217 Mo. 1; Overholt v. . Vieths, 93 Mo. 422-429; Witte v. Stifel, 126 Mo. 295; Barney v. Railroad, 126 Mo. 372; Moran v. Pullman Co., 134 Mo. 641; Schmidt v. Distilling Co., 90 Mo. 284; Curley v. Mo. Pac. Ry., 98 Mo. 1. c. 17; Rushenberg v. Railway, 109 Mo. 112; Smith v. Dold Pkg. Co., 82 Mo. App. 9; Marcheek v. Klute, 133 Mo. App. 280; Stall v.' Tel. Co., 141 Mo. App. 183.- (3) Defendant was not charged with the duty of anticipating that children would be likely to be attracted by the house under construction, the scaffold and the tree, or would be likely by reason of such condition, to climb into said tree. What is probable, must be considered, not what is possible. Sullivan v. Railway, 133 Mo. 1; Brew. Assn. v. Talbot, 141 Mo. 674; Fuch v. St. Louis, 167 Mo. 645; Strack v. Tel. Co., 216 Mo. 601; Porter v. Brew. Assn., 24 Mo. App. 1; Clark v. Railroad, 39 Mo. 184; Balentine v. Railroad, 40 Mo. 491; Davis v. Railway, 89 Mo. 340; Turner v. Haar, 114 Mo. 347; Mill Co. v. Transit Co., 122 Mo. 278; Walling v. Railroad, 101 Mo. 631; Otis v. Railroad, 112 Mo. 622; Flori v. St. Louis, 69 Mo. 341. Even if defendant owed a duty to plaintiff and omitted such duty, such omission, to-wit, the uninsulated wire through the tree, was not the proximate cause of the accident and injury. The proximate cause of this injury and damage is the active, independent, intervening action of the plaintiff himself, in conjunction with the breaking of the limb of the tree caused by his own conduct. Fuchs v. St. Louis, 167 Mo. 647; Luehrmann v. Light Co., 127 Mo. App. 213; Brubaker v. Light Co., 130 Mo. App. 447; Foley v. McMahon, 114 Mo. App. 444; Fulwider v. Trenton Co., 216 Mo. 582; Stone y. Railroad, 171 Mass. 536; Cole v. German Society, 124 Fed. 114; Clifford v. Cotton Mills, 146 Mass. 47; Ins. Go. v. Tweed, 7 Wall. 44; Railroad v. Kellogg, 94 U. S. 469; Railroad v. Hickey, 166 U. S. 521; Read v. Nichols, 118 N. Y. 224; Cuff v. Railroad, 35 N. J. L. 17; Curtin v. /Somerset, 140 Pa. St. 70. (4) On all the evidence and the law, the plaintiff was at least guilty of concurrent, contributory negligence and cannot recover. The evidence shows that he is unusually bright; that he was permitted to go at will about the city and was capable of caring for himself; that in the general sense in which it is understood, he knew what electricity was; that it furnished light and power and that wires were used for the transmission; that electricity would hurt, would shock, was dangerous. Taking his testimony in its entirety on the question, that he knew the wires were there and saw them is established beyond all cavil and doubt. On such a record there was nothing to submit to the jury. There was no room for drawing different inferences. Fink v. Railway, 143 8. W. 568; Fry v. Transit Co., Ill Mo. App. 324; Heinzle v. St. Ry. Co., 213 Mo. 102; Campbell v. Surburban Ry., 175 Mo. 161; Lynch v. St. Ry.' Co., 112 Mo. 420; Schmitz v. Railroad, 119 Mo. 256; Ridenour v. Cable Co., 102 Mo. 270; Mann v. Railroad, 123 Mo. App. 486; McGee v. Railroad, 214 Mo. 530; Berry v. Railroad, 214 Mo. 593. Instruction 1, given at request of plaintiff, does not correctly declare the law and constitutes reversible error. It is an instruction on the whole-case, warrants and directs a verdict for plaintiff if the jury find as true the facts recited, and yet it utterly omits and ignores the issues of plaintiff’s contributory negligence and every other question except to find that the plaintiff was at play. An instruction purporting to cover the whole ease and directing a verdict must submit every issue involved in the case, especially the defenses. Scanlan y. Gulick, 199 Mo. 449. Where two separate instructions are in conflict the correct one does not cure the erroneous one, since the appellate court cannot tell by which one the jury was governed. Shepperd v. Transit Co., 189 Mo. 362; Porter v. Railway, 199 Mo. 82; Glasgow v. Met. St. Ry. Co., 191 Mo. 374; Brokerage Co. v. Gates, 190 Mo. 403. The language used by counsel for plaintiff was highly improper and prejudicial and constitutes ground for reversal. He used language calculated to distract the minds of the jurors from a calm deliberation of facts. He injected into the case elements of damage not allowable. Taken as a whole and especially the parts objected to, the language is not only objectionable on the issue of amount of damage to be awarded, but it distracted the minds of the jury on the vital question of liability or non-liability. Invective, abuse, sympathetic appeal, took the place of evidence, or rather supplied the failure of evidence and the jury tried the case in every phase as individual fathers or brothers or sons —and not as jurors. Haynes v. Trenton, 108 Mo. 123; Evans v. Trenton, 112 Mo.- 390; Morgan v. Durfee, 69 Mo. 469; Ritter v. Bank, 87 Mo. 574; Beck v. Dowell, 111 Mo. '506.

      Talma 8. Ileffernan, Patterson & Patterson and J. M. Johnson for respondent.
    (1) The duty imposed upon a lighting company which for private gain conducts powerful currents of electricity along and over public highways is that of the highest degree of care to use every protection to insulate its wires at all points where people have a right to go or be for business or pleasure. Geismann v. Electric Co., 173 Mo. 674; Gannon v. Gaslight Co., 145 Mo. 502; Dolan v. Gaslight Co., 145 Mo. 550; Hoover v. Elevated Ry. Co., 140 S. W. 321; Brubaker v. H. C. Co., 130 Mo. App. 439; Harrison v. K. C. Co., 195 Mo. 606. (2) There is practically no dispute that the insulation was off of defendant’s wires and had been for sometime, so long that strips of insulation hung down in plain view of pedestrians. And plaintiff’s injuries are further proof of the want of insulation which caused them. (3) Was the plaintiff guilty of contributory negligence to such a degree that it became the proximate cause ? It is undisputed that plaintiff was a licensee of the property owner in playing around the house and premises. The same is true of the tree; if it be on the property of Mrs. Hughes, then plaintiff was a. licensee, and if it be on the street, plaintiff had as much right in it as defendant; he was compelled there by the laws of nature which causes all boys to climb trees, and was not restrained from there by any legal prohibition. The defendant was not rightfully in the tree with uninsulated wires and plaintiff could not be a trespasser against defendant who owned neither the street nor the abutting property. Now the breaking of a limb and falling of plaintiff concurred with defendant’s negligence in causing the injury and the courts of the State have plainly stated the rule of liability in such cases. “The negligence of the party inflicting the injury and not that of the one first at fault is regarded in law as the sole or proximate cause of the injury.” Maginnis v. Railway, 182 Mo. App. 694; Musick v. Packing Co., 58 Mo. App. 322; Lote v. Mfg. Co., 160 Mo. 626; Day v. Light Co., 136 Mo. App. 274; Beverly v. Co., 130 Mo. App. 593; Yon Treba v. Gaslight Co., 209 Mo. 648.
   BLAIR, J.

This cause was transferred here by the Springfield Court of Appeals. The appeal is from a judgment for damages for injuries suffered by respondent, then nine years old, from contact with ap-' pellant’s electric wires. These wires carried a powerful current, and were so placed that they passed through a tree which stood on or very near the line dividing a public alley from a building lot in Springffeld. The tree was thirty or more feet high and its lower branches were near the ground. It was a tree which children could and did climb easily. The insulation of the wires near and in the tree had been in bad condition for a year or more. Respondent was injured on May 9th. Nearly two months before that date the lot owner commenced the erection of a bungalow. From the beginning, without interference from the owner, children played about and in the building. The center of the trunk of the tree near the ground was thirty-two inches from the end wall of the house. Appellant’s nearest wire, as it passed through the tree, was thirty-six inches from the end wall and twelve inches from the edge of the cornice, and was twenty feet high. On May 9tn the house was nearing completion. The roof, at the highest point, next the tree, was twenty-six feet and three inches high. The tree extended several feet above this. On that date respondent and several other boys were playing about the bungalow, and in the course of their games respondent went upon the roof and up to or near the ridge pole. The owner, then present, told the boys to come down. Respondent at once went to the edge of the roof nearest the tree and climbed from the roof to the tree along a limb or bough which extended out over the house. He reached the trunk of the tree or a point very near it and began to descend. He stepped down upon another limb which broke, and he fell against the wires and was severely shocked and burned. He fell to the ground, but there is no evidence he received any injury except those inflicted by the wires. Respondent had not been in the tree before.

I. The Court of Appeals (187 S. W. 556) gave recognition to the general principle that a company like appellant, if reasonably chargeable with knowledge, or of facts making it reasonably probable that persons may lawfully come into close proximity to its wires for purposes either of business or pleasure, is obligated “to use every precaution which was accessible to insulate its wires at” such places and to use the utmost care to keep them so. [Geismann v. Electric Co., 173 Mo. l. c. 674; Von Thebra v. Gaslight Co., 209 Mo. l. c. 659; Clark v. Railroad, 234 Mo. l. c. 418, 419; Campbell v. United Rys., 243 Mo. l. c. 152.]

II. The Court of Appeals also recognized the rule that a company stretching electric wires, in a city, through trees like the evidence tends to show the tree in this case to have been, must take notice boyish impulses and anticipate the pres-enee of children in such trees. In this connection it quoted from a case (Temple v. Elec. Co., 89 Miss. 1) in which the Supreme Court of Mississippi said: “Whether this appellee knew that this particular small boy was in the habit of climbing this tree or not, it is clear from the averments of the declaration that it did know the tree, the kind of tree, and, knowing that, knew what any person of practical common sense would know — that it was just the kind of tree that children might climb into to play in the branches.” The Court of Appeals cited cases and texts supporting the principle. It is well established. [Mullen v. Gas & Elec. Co., 229 Pa. l. c. 57, 58; Benton v. Public Service Corporation, 165 N. C. l. c. 357; Thompson v. Slater, 193 S. W. (Mo. App.) l. c. 973, 974; Sweeten v. Power & Light Co., 88 Wash. 679; Electric Light Co. v. Healy, 65 Kan. 798; Meyer, Admx., v. Light & Traction Co., 151 Wis. l. c. 279; Talkington v. Power Co., 96 Wash. 386; Birmingham Ry., L. & P. Co. v. Cockrum, 179 Ala. 372; Hayes v. Power Co., 95 S. C. 230; O’Gara v. Electric Co., 244 Pa. St. l. c. 159, 160; Curtis on Law of Electricity, sec. 512; Joyce on Electric Law, sec. 445.] The Temple case often has been cited approvingly in yet other decisions and, so far as we can discover, has been criticised in none. The principle is sound.

III. Having reached these conclusions, the Court of Appeals further held the principle of the Temple case inapplicable. It held there was no reasonable probability of an occurrence like that detailed in the evidence and, therefore, there is no liability, concluding thus: “Applying these principles to this case, we cannot hold that defendant should have anticipated that a hoy, or any one, would climb to the apex of the roof and attempt to go from there to the top of this tree, and in so doing fall on these wires. ’ ’

After a careful examination of the record, we are convinced the Court of Appeals fell into error as to the facts. Two witnesses testified as to the time and manner of respondent’s fall. Both testified he had climbed into the tree and had begun to descend before he fell. That part of the testimony quoted by the Court of Appeals does not negative this idea, and other testimony of the witness quoted, both on direct and cross-examination, is clearly to the effect that respondent had begun his descent before he fell upon the wires. The bough over which respondent climbed into the tree did not give way. Nor did respondent fall while climbing into the tree. The photograph is not conclusive. The photographer testified the position of the camera had much to do with the appearance of nearness or distance between objects shown by a photograph. Mrs. Hughes gave testimony tending to show branches had been cut from the tree after the accident and before the photograph was taken. Even without any of this testimony, it certainly could not be conclusively held there was no evidence the boy climbed into the tree from the house. The decisions cited by the Court of Appeals as warranting the holding last mentioned are, in general, those proceeding upon the principle that an electric company which has placed its wires where they are practically inaccessible or where they can be reached only by overcoming considerable difficulty or danger, i. e., in places where the presence of persons is not reasonably to be anticipated, is not, ordinarily, liable for injuries resulting from contact with them. [Card v. Electric Co., 77 Wash. l. c. 569; Braun v. Electric Co., 200 N. Y. l. c. 494, 495.] Several decisions cited in the opinion are from courts which have approved and applied the rule in the Temple case, and others distinguish it. None of them criticises it. The facts of the record render these cases inapplicable, and bring the case within the principle of the Temple case. That principle, so far as this case is concerned, is that electric companies which stretch wires through trees which children can climb must anticipate the presence of children in such trees and govern themselves accordingly. Everybody knows boys will climb trees. It is the probability of their presence there which brings trees within the general rule of Geismann v. Elec. Co., supra. The rule is not that only such hoys are protected as may climb from the ground into a tree. The thing required to he anticipated is the presence of children in the tree. The method by which they get into it cannot ordinarily he very important. Respondent was not injured by reason of coming into the tree from the house. He did not fall from the house. He had climbed into the tree and was engaged in descending the tree when he came into contact with the wires. Can it be that the company would he liable if the boy had been climbing up and had touched the wires and is not liable because he came in contact with them while attempting to descend? The Court of Appeals does not say so. Neither do' we. The boy had reached a place where he had a right to be and where appellant reasonably might have anticipated his presence. His method of reaching the place may haye been unusual, but that method did not bring about his injury. The trial court was right in its conclusion on this phase of the case.

IV. The Court of Appeals correctly held respondent was not to be treated as a trespasser. This is true whether the tree was in the alley or on private property. It was not appellant’s property. This is the ruje ^ ]\/[igs0llri, as shown by cases cited by the Court of Appeals, and is the rule elsewhere. [Daltry v. Elec. Co., 208 Pa. St. l. c. 412; Thompson v. Power Co., 77 N. H. 92; Nelson, Admr., v. L. & W. Co., 75 Conn. l. c. 551; Birmingham Ry., L. & P. Co. v. Cockram, 179 Ala. 372; Commonwealth Elec. Co. v. Melville, 210 Ill. l. c. 77.]

V. Was respondent guilty of contributory negligence as a matter of law? Of course, his presence in the tree was not such negligence. Nor does the fact that he slipped or fell upon the wires bar the action. In Thompson v. Slater, 193 S. W. (Mo. App.) l. c. 974, 975, the St. Louis Court of Appeals decided an analogous question. A limb on which a boy was sitting broke and he fell against uninsulated wires passing through the tree. The court held the non-insulation and not the fall was the proximate cause of the injury. In Lydon v. Edison Co., 200 Mass. 529, decedent, while destroying moths in a tree, was killed by contact with defendant’s uninsulated wires. The court held that had there been proof decedent “accidentally slipped or lost, his balance and instinctively or naturally threw up his hand and happened in that way to touch the wire, that would not be inconsistent with due care on his part.” The lacle of such evidence resulted in a judgment for the company, the rule as to the burden of proving due care being not like ours. The court cited Garant v. Cashman, 183 Mass. l. c. 18. In that ease a laborer standing on a bench in performing his work, lost his balance and fell against an insufficient guard or barrier which gave way. The court said no negligent act appeared, and held the facts justified a finding of due care. In Union Pacific Ry. v. McDonald, 152 U. S. l. c. 281, a boy in running beside a slack heap slipped and fell into it. The Supreme Court of the United States held that “his falling into the slack heap was accidental and in no proper or just sense the result of negligence.” In Birsch v. Electric Co., 36 Mont. l. c. 579, a workman engaged in building a wall near wires improperly insulated stepped upon a mortar board and slipped. He threw out his arms involuntarily and struck the wires. The court held the slipping accidental, the contact with the wires involuntary, and the fact no bar to plaintiff’s case. In Wade v. Electric Co., 98 Kan. l. c. 370, appellant company insisted the judgment should be reversed because the evidence failed to show that decedent slipped and fell upon the wires, as alleged in the petition. In Humphreys v. Coal & Coke Co., 73 W. Va. 495, a coal-mine track-layer slipped and, in falling, caught a live wire stretched nearby. The court held there was “no evidence of contributory negligence.” In Colusa Parrot M. & S. Co. v. Monahan, 162 Fed. 276, a laborer upon a wet roof slipped and, in falling, grasped a live wire. The circuit court of appeals held this did not bar plaintiff. In the case of Elliott v. Light Co., 204 Pa. 568, a ladder, on which a painter was at work, slipped. The painter, endeavoring to save himself, grasped a near-by wire. He was shocked by the wire and, it seems, injured by the fall. The court held the proximate cause of the injury was the fall; that defendant was not responsible for the fall of the ladder; that it would be speculation to attempt to “differentiate between the extent of the injury he did receive and that which he would probably have received if he had not come in contact with the electric wire in the course of his fall. It is quite possible the wire helped break the fall and thus lessen the extent of the injury,” but that, in any event, the presence of the wire did not bring about the accident. Whatever view is taken of the correctness of this decision (Birsch v. Elec. Co., 36 Mont. l. c. 582), the facts distinguish it. In no event does it unsettle the principle of the cases previously cited. In the circumstances it cannot be said this nine-year-old boy is barred of redress by the facts shown by this record. The boy’s presence in the tree did not constitute contributory negligence. There was no direct evidence he knew of the defect of insulation. There was no evidence he purposely touched the wires. The uncontradicted evidence shows he did not.

YI. Appellant criticises Instruction 1 given at respondent ’s instance.

(a) The criticism directed at that part of the instruction referring to the scaffolding need not he coh-sidered since appellant requested an instruction including the same matter.

(b) The contention that the instruction excluded the defense of contributory negligence has a semblance of substance, hut must he ruled against appellant. The instruction required the jury to find, before £or respondent, that appellant was guilty of acts constituting positive negligence in leaving the wires uninsulated, and then required a finding that this negligence was the cause of the injury. Numerous other instructions, given at the instance of respondent and appellant and on the court’s own motion, ring all the changes on the subject of contributory negligence. Not every omission of a reference to contributory negligence renders erroneous an instruction for' a plaintiff. [Owen v. Ry. Co., 95 Mo. l. c. 180, 181.] The instruction criticised might have been improved in this respect, but the principle referred to shows there was no prejudicial error. The question whether there was any substantial evidence of contributory negligence, the age of' the child being considered, is a serious one, but in view of the fact that appellant had the advantage of having the issue submitted, it need not be- discussed.

VII. The verdict was for $7500. As a result of the injuries one of respondent’s arms was amputated below the elbow. His other hand is almost useless, the fingers being burned and drawn. He suffered senous burns on the body. It is unnecessary to cite authorities to show that the judgment is far below the amount which the facts would have warranted. The objection to argument of counsel said to affect the amount of recovery mus't, in view of the result, be held unprejudicial.

The only other exception to argument' properly preserved was taken to this statement: “Don’t encourage these wealthy, greedy corporations to justify that which cannot compensate this boy simply according to law and according to your duty to the law.” This is probably incorrectly reported, hut we must deal with it as presented. That this incoherent and meaningless sentence could have “distracted the minds of the jury from a calm deliberation of facts,” as counsel argue, is beyond comprehension. Other portions of the argument for respondent are shown to contain an express disclaimer that anything was asked because appellant was a corporation or because of anything save the law and the evidence. Appellant was not prejudiced.

The judgment is affirmed.

All concur except Bond, P. J., absent.


source: Caselaw Access Project

author: BROWN, C.

license: Public Domain

text:
    MASSACHUSETTS BONDING & INSURANCE COMPANY, Appellant, v. WALTER K. CHORN, Superintendant of Insurance.
    Division One,
    March 29, 1918.
    •1. INSURANCE TAXATION: Returned Premiums: Reinsurance. A foreign insurance company engaged in issuing indemnity policies, health and accident policies and surety bonds in this State, is taxable on the entire amount of premiums received by it during the previous year, including premiums refunded on policies can-celled and premiums received from other companies for reinsurance.
    2. -: Foreign Corporation: Subject to Laws of State. The right of a foreign corporation to engage in business within this State depends upon the will of this State, except where its business involves interstate commerce.
    3. -: -: Citizenship. The only rights of citizenship which a State is forbidden by the Fourteenth Amendment of the TI. S. Constitution to abridge pertains to birth or naturalization. The clause of that amendment declaring that “all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside’’ does not include such citizenship as is possessed by a corporation in its corporate capacity. Such a corporation is the creature of the State creating it, and the laws of its creation do not have any extra-territorial force, except in so far as it may be the instrument of the Government in the exercise of powers with which it is invested by the U. S. Constitution.
    4. -:-: Due Process and Equality: Penalty. A statute which fixes a tax of two per cent on “the premiums received, whether in cash or notes, in this State, or on account of business done in this State,” is broad enough to embrace all premiums received by a foreign corporation, including the premiums returned on can-celled policies and the premiums received from other companies for reinsurance, makes a reasonable exaction for the protection aHorded to the entire business transacted by the foreign corporation licensed to do business in this State, and does not, because it authorizes a cancellation of its license for failure to pay the entire tax, violate that provision of the Fourteenth Amendment which declares that no State shall “deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
    5. -: Classification: Uniformity: Accident and Indemnity Companies. Separate classification of fire insurance companies and companies. engaged in issuing indemnity policies, health and accident policies and surety bonds, violates no just rule; and the fact that the statute authorizes the Superintendent of Insurance, in imposing the two-per-cent tax on the premiums received by fire insurance companies, to deduct the amount paid for. reinsurance, while it does not authorize him to reduce the premiums on which such other companies are to pay taxes by the amount paid for reinsurance, does not violate that provision of the Missouri Constitution which requires that taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax. That constitutional provision refers to property taxes, and as to excise taxes is met by a reasonable classification of the subjects of taxation and the imposition of a tax that is uniform as to all subjects within the class. There is a reasonable ground, demonstrated by great fires in large cities, for an exception in the statute that encourages fire insurance companies to reinsure their risks, which is not pertinent in indemnity and accident insurance.
    6. -: Excise Tax. A tax of two per cent of all premiums received in this State, or collected on account of business done in this State, by a foreign insurance company, is not a property tax, but an excise tax, and is payable although no dollar of the premiums ever came within the jurisdiction of the State.

      7. -: - — : On Business Done. Said excise tax is, by the statute, imposed “on the business done,” and not upon the insurance furnished. When a contract of insurance has b'een executed and the consideration paid, the business has been done. Therefore said statute does not express the legislative intention that premiums received and, returned upon the cancellation of the policies, together with all sums expended for reinsurance, or contracts of indemnity against the companies’ own losses, are to be deducted from the amount of the receipts upon which the tax is to be computed.
    Appeal from Cole Circuit Court. — Hon. J. G. Slate, Judge.
    AFFIRMED.

      Harding, Deatherage, Murphy & Harris for appellant.
    (1) Sec. 7099, R. S. 1909, is unconstitutional and void. Sec. 3, Art. 10, and Sec. 4, Art. 10,’ Constitution of Missouri; Sec. 1, Art. 14, TJ. S. Constitution. (2) Even though Sec. 7099, R. S. 1909, he valid, it does not require appellant to pay a tax upon: (a) Premiums it never did receive; (b) premiums returned because of the refusal of the assured to take the policy; (c) premiums which were never earned and which were returned to the policy-holders. Insurance Co. v. Van Cleave, 191 Ill. 410; People ex rel. v. Miller, 177 N. Y. 515; State ex rel. v. Fleming, 70 Neb. 540; State v. Ins. Co., 38 La. Ann. 465; Ins. Co. v. Commonwealth, 128 Ky. 174; Ins. Co. v. Herold, 198 Fed. 199. (3) Section 7099 should be so construed as to allow appellant to deduct from its gross premium receipts either the amount paid by it to other companies in this State for reinsurance or the amount received by it from other companies. In other words, appellant should not be compelled to pay a double tax. Authorities above.

      Frank W. McAllister, Attorney-General, and John T. Gose, Assistant Attorney-General, for respondent.
    (1) The proviso to Sec. 7099, R. S. 1909, is not obnoxious to Sec. 3, Art. 10, of the Mo. Constitution, requiring uniformity upon the same classes of subjects. The Legislature had the right to place fire insurance companies in a class by themselves because they do not follow the same business under the same conditions and circumstances as do life, bonding, or casualty insurance companies. The difference between fire insurance companies and other insurance companies is of such character as to justify the Legislature in making a separate class thereof if it so chooses. People v. Insurance Co., 24 N. T. Supp. 192; Aurora v. McGannon, 138 Mo. 49. “The requirement of equality and uniformity does not preclude the division of things taxable into classes and the imposition of taxes which, while hearing equally upon different members of each class, bear unequally upon the classes in the aggregate; and a legislative division of this sort cannot he interfered with by the court.” Kansas City v. Richardson, 90 Mó. App. 456; Glasgow v. Rouse, 43 Mo. 479; St. Louis v..Green, 7 Mo. App. 468; City v. Green, 70 Mo. 562; Masonic Aid v. Waddell, 138 Mo. 637; Express Co. v. City, 66 Mo. 680; 2 Dill, on Municipal Corporations, sec. 593; Veazie Bank v. Fenno, 8 Wall. (IT. S.) 533; McCrary v. United States, 195 U. S. 27; State ex rel. v. Henderson, 160 Mo. 216. That there are fundamental and well-defined differences between fire insurance companies and life insurance companies and premium insurance companies and assessment insurance companies is too well known to admit of question. (2) The contention of appellant that said ' section 7099 violates section 4 of article 10 of the Constitution, which requires all property to be taxed in proportion to value, is based upon a misconception ot the nature of the tax imposed. This constitutional guaranty is limited to a property tax. Section 7099 does not impose a tax upon property, but upon an occupation or privilege. Kansas City v. Richardson, 90 Mo.. App. 456; St. Joseph v. Ernst, 95 Mo. 367; Glaseow v. Rowse, 43 Mo. 479 ; City v. Green, 7. Mo. App. 473; Flint v. Stone-Tracy, 220 U. S. 163. (3) Appellant’s contention that section 7099 is in violation of section 1 of article 14 of the Constitution of the United States, which guarantees the equal protection of the laws of the State to every citizen of the United States, is based upon the same misconception that led it to contend that such section of the statutes was in violation of the constitutional requirement relating' to taxation in proportion to value. Southern B. & L. Assn. v. Norman, 31 L. R. A. 42; Society v. Coite, 73 U. S. (6 Wall.) 594; People v. Ins. Co., 92. N. T. 328; Flint v. Stone-Tracy Co., 220 U. S. 107; Express Co. v. Seibert, 142 U. S. 350; State ex rel. v. Henderson, 160 Mo. 216. (4) Appellant’s contention that, even though section 7099 be valid, it should be so construed as to permit appellant to make deductions on account of premiums returned, must be denied. In order to give the section such a construction, appellant interprets the words “premiums received” to mean premiums received, earned and retained, and cites cases from other states in ydiich those words have been so interpreted. But those decisions of other states are not even persuasive in this case, because this is an act of the Missouri Legislature and that Legislature has by its different enactments upon this subject precluded such an interpretation of the words “premiums received.” Sec. 6057, R. S. 1879; Sec. 5958, R. S. 1889; Laws 1895, p. 198, sec. 2; Sec. 8043, R. S. 1899; Laws 1905, p. 172; Sec. 7099, R. S. 1909. ■ The failure of the Legislature through all these years to re-incorpórate in subsequent enactments returned premiums which it had once permitted insurance companies to deduct is not the only evidence of the intent of the Legislature. The last enactment specifically provides that in the case of fire insurance companies credits may be given for premiums paid for reinsurance. This proviso in itself and apart from the • history of prior legislation precludes the idea that other deductions or credits were to be permitted. Appellant is concluded by the maxim of statutory interpretation, Expressio unius est exclusio alterius.

   BROWN, C.

This suit was instituted by petition for injunction filed in the Cole County Circuit Court April 30, 1917. A preliminary restraining order was granted on the same day. On the first day of the following June term the defendant appeared and demurred generally to the petition. On the fifth day of the same term the plaintiff filed an amended petition in words and figures (omitting caption and signatures) following:

“Now comes the plaintiff and for its cause of action against the defendant states that it is a corporation organized under the laws of the State of Massachusetts and authorized to transact business in the State of Missouri as a foreign insurance company; that Walter K. Chorn is the duly elected, qualified, and acting Superintendent of Insurance in the State of Missouri.
“Plaintiff further states that during the year ending December 31, 1916, plaintiff issued a great number of contracts of insurance in the State of Missouri, consisting of policies of indemnity, known as liability policies, health and accident policies, surety bonds, and so forth; that the premiums on all of said contracts of insurance received by the plaintiff under sections 7099 and 7100, Revised Statutes 1909, as construed by the defendant, amounted to $195,384.61; in other words, under the construction placed upon said sections 7099 and 7100 of the Revised Statutes aforesaid by the defendant, the plaintiff received as premiums under said year on its business done in the State of Missouri dur-. ing the said year the sum of $195,384.61; that in truth and in fact plaintiff did not receive the said sum of $195,384.61 on business done in the State of Missouri during said year; that part of the contracts issued by it in the State of Missouri during said year were returned and the premiums refunded to the persons to whom, on the face of said contracts, said contracts were issued; that by the terms of a large number of said contracts the parties to whom they were issued were given the right to cancel the same, in which event the plaintiff was required to refund the unearned premium from the date of the cancellation, and the plaintiff was given the right to cancel the same by refunding the unearned premium; that of the amount of $195,384.61, the plaintiff returned to applicants for its contracts of insurance the sum of $23,504.11 on account of policies and bonds not taken or cancelled during said year; that during said year the plaintiff paid out of said sum of $195,384.61 to other insurance companies transacting business in the State of Missouri under the authority of the laws of the State of Missouri the sum of $23,096.85 for reinsurance on policies and bonds on account of which it had as aforesaid received the sum of $195,384.61, and that therefore it has only actually received on business done in the State of Missouri during said year the sum of $148,783.65, which amount includes premiums received from other companies authorized to transact business in the State of Missouri for reinsurance written by plaintiff for such other companies.
“Plaintiff further states that the defendant, acting under the assumed authority of sections 7099 and 7100, Revised Statutes 1909, has demanded from the plaintiff as a tax the sum of $3,907.68, which is two per cent on said sum of $195,384.61.
“Plaintiff further states that as construed by defendant, said section 7099 is violative of and is in conflict with section 3, article 10, of the Constitution of Missouri, and with section 4, article 10, of the Constitution of Missouri, in that said section imposes a double tax on the property of plaintiff and all companies similar to plaintiff, and in that it imposes a tax that is not uniform upon objects of the same class, and in thgt it imposes a tax that is not in proportion to the value of plaintiff’s property sought to be taxed.
“Plaintiff further states that it is willing to pay a tax of/two per cent on said sum of $148,783.65, amounting to $2,975.68, and has offered to pay the same to G-. H. Middlecamp, State Treasurer of the State of Missouri, and has tendered said sum to said State Treasurer and now offers to pay tlie same into court, and that said State Treasurer has refused to accept the same.
“Plaintiff further states that defendant, acting under the assumed authority of section 7100, Revised Statutes 1909, has threatened to suspend plaintiff from the further transaction of its business in the State of Missouri and will, unless restrained by this court, suspend plaintiff from the further transaction of business in this State. Plaintiff states that if the defendant is permitted to suspend plaintiff from the further transaction of business in this State, it will be irreparably damaged and that it has no adequate remedy at law.
“Wherefore, plaintiff prays for an order of this court perpetually enjoining the defendant from suspending the plaintiff from the transaction of its business in the State of Missouri, because of its failure to pay said illegal tax of $3,907.68, and for such other and further relief as in equity and in good conscience the plaintiff may be entitled to.”

The demurrer previously filed was, on the same day taken upland, being treated as applicable to the amended petition, was sustained, and the plaintiff declining to plead further, final judgment was entered dismissing its petition, from which this appeal was duly taken.

I. As will be seen from the foregoing statement, the object of this suit is to enjoin the defendant, in his- capacity of Insurance Commissioner of this State, from suspending the plaintiff, a corporation of the State of Massachusetts, from the further transaction of its business in this State as a foreign insurance company, until it shall have paid the full sum of $3,907.68 demanded of it as tax assessed upon premiums received in this State, or upon business done in this State, under the provisions of Section' 7099, Revised Statutes 1909.

The petition states, in substance, that during the year ending December 31, 1916, plaintiff issued a great number of contracts of insurance in the State “consisting of policies of indemnity, known as liability policies, health and accident policies, surety bonds, and. so forth,” the premiums received on all of which amounted to $195,384.61, as construed by defendant, while in fact it did not receive that amount, because out of the said amount of premiums so received it returned to applicants for its contracts of insurance the sum of $23,504.11 on account of policies and bonds not taken, or cancelled during said year, and paid to other insurance companies lawfully transacting business in this State the further sum of $23,096.85 for reinsurance on policies and bonds on which it ha'd received premiums included in said amount on which the tax was • charged, so that it had actually received on business done in the State during that year the sum of $148,783.65, which included premiums received from other companies authorized to transact business in this State for insurance written for them by plaintiff. On this sum the plaintiff offers to pay the two per cent tax imposed by the section cited.

The exactions complained of are, it will be observed, divided into two classes only: (1) the tax on premiums returned to the insured on policies undelivered or can-celled, and (2) the tax on premiums expended for re-insuranee by plaintiff on the same, risks in other companies doing business in the State. It is, perhaps, intimated, but not stated in the petition, that the first of these includes three sub-classes: (1) premiums collected on contracts issued and returned and the premiums refunded; (2) premiums collected and returned on policies cancelled by plaintiff, at its own instance; and (3) premiums collected and returned on policies cancelled at the instance of the insured under the terms of such policies. There is nothing, however, in the terms of the petition which indicates the amount of the returned premiums, if any, belonging to any one of these three sub-classes. Its theory seems to be that all premiums received and returned to the insured, either by reason of the non-delivery of the policies for which they had been paid or on account of their subsequent cancellation for any reason, are exempt from the tax. There is, therefore, no reason why this court should, independently of the issues raised by the pleading, enter upon a purely academic discussion as to the status, for purposes of taxation under this section, of sums paid by and held for prospective policy-holders, for application as premiums when the contracts take effect.

II. The appellant, in its brief says that Section 7099 of Revised Statutes 1909, under which this tax is claimed by the State, “is unconstitutional and void,” citing, without comment or argument, Section 1 of the Fourteenth Amendment of the Constitution of the United States as sustaining that position. It does not call our attention to the particular clause of that section upon which it depends to sustain the assertion. This is, perhaps, owing to the fact that during the fifty years since it became a part of the supreme law of the land it has been frequently before the distinguished court which has the final word in its interpretation, and has foreclosed every avenue through which it might reach and apply to the questions involved in this case.

It was said by the Supreme Court of the United States in Hooper v. California, 155 U. S. l. c. 652, that “the principle that the right of a foreign corporation to engage in business within a State other than that of its creation, depends upon the will of such other State, has been long settled, and many phases of its application have been illustrated by the decisions of this court.” Many cases are cited in support of this statement,. which it is not necessary to otherwise name. The only exception to this rule is where a corporation created by one State rests its right to enter another and to engage in business therein upon the Federal nature of its business. [Ibid.] This exception and the nature of the distinction which it involves, was fully discussed by that court in Text Book Co. v. Pigg, 217 U. S. 91, as well as by this court in a cause in which the same plaintiff sued upon a similar cause of action. [International Text Book Co. v. Gillespie, 229 Mo. 397.] Even were there room for it somewhere in the facts in this case it is not in issue here, because no question under the commercial clause is raised by the pleading or urged in the appellant’s brief. It is not for us. to make the objection. [Southwestern Oil Co. v. Texas, 217 U. S. l. c. 118.] The section referred to is introduced by its own definition of citizenship as follows: “All persons born or naturalized in the United States and subject to the jurisdiction' thereof áre citizens, of the United States and of the State wherein they reside.” The only road to the citizenship the privileges or immunities of which the State is here forbidden to abridge, lies through birth or naturalization, and does not include such citizenship as is possessed by corporations in that capacity. [Orient Insurance Company v. Daggs, 172 U. S. 557.] These are creatures of the State which creates them, and the laws of their creation have no extra-territorial force except in so far as srtch corporations may be instruments of the general government in the exercise of the powers with which it is invested by the Federal Constitution. As we have already said, no infringement of these powers is in question in this case.

III. The only provision of the section of the Fourteenth Amendment invoked by the appellants which can give plausibility to its contention is as follows: “Nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” Under this provision the .question arises whether the provision of the State statute under which this tax is sought to be imposed, in connection with the proceeding provided for its assessment and collection, including the penalty by suspension from business in this State for its nonpayment, constitutes due process of law or deprives it of the equal protection of the laws. If it has that effect in either of the respects mentioned the provisions and all proceedings under it are void, because they are forbidden by the supreme law of the land.

In American Manufacturing Co. v. St. Louis, 270 Mo. 40, we said, quoting-; from Judge Cooley (1 Cooley on Taxation, 25), “the power of taxation, however vast in its character, and searching in its extent, is necessarily limited to subjects within the jurisdiction of the State;” and that “the State may exercise this sovereign right with respect to all persons, things and business activities which exist under the protection of its laws,” and that, “unless restrained by provisions of the Federal Constitution, the power of the State as to the mode, form and extent of taxation is unlimited, where the subjects to which it applies are within her jurisdiction.” The thing taxed in this case is the right to transact the business of various kinds of so-called insurance, relating, among other things, to the life, health and safety of individuals, indemnity against liability of employers to employees injured in their service and loss incurred by reason of their defaults. All these kinds are included under the general name of insurance, and, so far as this appellant is concerned, are under the jurisdiction of the Insurance Department of the State by which the tax is ascertained and assessed. The payment of the tax entitles it, under the laws of the State, to transact this business in its capacity as a corporation. The amount of the tax is fixed at two per cent on “the premiums received, whether in cash or in notes, in this state,,, or on account of business done in this state.” That this is a tax upon business done in this State under the protection of its laws there can be no doubt. The penalty provided for its collection against which this proceeding is especially directed consists merely in withholding the right until the consideration prescribed for its exercise shall have been paid. That this is, in its nature, reasonable, appears from its statement. The principle upon which the tax is assessed is a just and reasonable one. Tbe business of which the State necessarily assumes the oversight and protection, is measured by the financial magnitude of its licensed and protected activities, "which constitute a standard which we have lately had occasion to approve in American Manufacturing Co. v. St. Louis, supra. The State does not assume to guarantee profit from any of the licensed and protected operations. If the position now taken by the State is correct it receives nothing on account of work done in its offices in this State in the cancellation of policies and reinsurance of risks which may have become too heavy when measured by the standard of its own capital, but is satisfied with the rate fixed upon the initial transaction. The only interest of the State lies in the additional facility it affords its people and its only duty is the protection of that facility.

This question, so far as it is' governed by the provisions of the Fourteenth Amendment to which we have referred, is completely disposed of by the decision of the Supreme Court of the United States in Southwestern Oil Co. v. Texas, supra. It was there held, in the opinion by Mr. Justice HablaN, in which the entire court concurred, that:' “The State, keeping within the limits of its own fundamental law, can adopt any system of taxation or any classification that it deems best for the common good and the maintenance of its government, provided such classification be not in violation of the Fourteenth Amendment.’’ The case is interesting in its facts and will receive further notice in this opinion. We therefore hold that the statute under which this tax is attempted to be imposed is not, as interpreted by the respondent, violative of any provisions of the first section of the Fourteenth Amendment of the Federal Constitution.

IV. It is contended by the appellant that in the matter of classification it is violative of section three of article ten of the State Constitution, which requires that taxes shall be uniform upon the same class of subjects -within the territorial limits of the au-thority levying the tax, because, as interpret-ed hy the Insurance Commissioner, it subjects all other insurance companies, including the plaintiff, to a greater tax than that imposed upon fire insurance companies. In other words, in the calculation of the amount of the two cent tax, fire insurance companies are authorized to deduct the amlount paid for reinsurance, while the plaintiff is not permitted to make such deduction. It is argued therefrom that the power of the Legislature to classify insurance companies for the purposes of taxation is withheld from the lawmaking branch of the government. It is not, nor can it ever be, plausibly contended that if such a classification is admissible it can be created by any form of words that clearly and unmistakably expresses the legislative intention to do so, so that the clause in Section 7099 which expressly permits fire insurance companies to deduct from premiums received, premiums paid for reinsurance of the same risks for their own benefit, so that in that respect and to that extent fire insurance companies are placed in a class by themselves for the purposes of this taxation. Of this there can be no doubt. This same question in a simpler form! was lately decided by this court in Bankers’ Life Insurance Company v. Ohorn, 186 S. W.’ 681. • It was contended in that case that the exemption of life insurance companies on the assessment plan from the very occupation tax we are now considering violated this constitutional provision. This court in its opinion by Bond, J., said: “That section (7099) as has been shown, in no way relieves either a foreign or a domestic insurance company, working on the assessment plan, from the payment of taxes on their property. The Legislature would have no power to exempt any real or personal property from taxation, other than specified under the Constitution . . . Neither has it done so in this instance. It only exempts all ‘assessment’ insurance companies from paying an excise of two per cent on the money assessed .against their living policy-holders to pay the beneficiaries of deceased policy-holders.” The rule is there already stated, and none is more firmly settled, than that while this provision of the Constitution prescribes a definite rule for the imposition of property taxes, no such rule can he or was intended to be formulated to cover the imposition of an excise tax on occupations like the one in question. It is necessary in all such cases that the Legislature classify the subjects of such taxation so as to reasonably distinguish them from each other and a uniform tax upon any class is all that is required. [State ex rel. v. Henderson, 160 Mo. l. c. 216-17.] “The.requisites of the Constitution may he carried out by a uniform tax on licenses to persons following the same pursuit, under the same conditions and circumstances; a difference therein will justify a discrimination in the tax.” [City of Aurora v. McGannon, 138 Mo. l. c. 49.] See also Masonic Aid Assn. v. Waddill, 138 Mo. l. c. 637, where this court said that: “It is well settled law, Ghat the requirement of equality and uniformity does not preclude exemption from taxation, nor the division of things taxable into classes, and the imposition of taxes which, while bearing equally upon the different members of each class, bear unequally upon the classes in the aggregate.’ ”

The separate classification of fire insurance companies and companies engaged in the business transacted by plaintiff violates no rule to which our attention has been directed in argument.' While the plaintiff’s business has some points of contact with trust companies, it has none with fire insurance companies. We see no reason to disturb the holding of the circuit court that there had been no showing that this separate classification was unjust, unreasonable or unauthorized.

V. Section four of Article ten of the Constitution requiring property to be taxed in proportion to its value does not, nor can it by its terms, apply to any tax other than a property tax. This was long ago decided ^ this conrt in Express Co. v. City of St. Joseph, 66 Mo. 675. In addition to what we have incidentally said on that subject in the preceding paragraphs we will say that this tax is not imposed upon property in any sense. The only property right involved in this tax is the right of appellant to acquire property by the exercise of its corporate capacity in this State, purchased and paid for by the payment of this tax. It is measured by money collected in this State or on business done in this State. The tax is payable although no dollar of the premiums even came within our jurisdiction.

VI. It is finally contended that Section 7099 expressed the legislative intention that premiums received and returned in whole or in part upon the cancellation of the policies or other contracts upon which they had been paid, together with all sums expended for reinsurance, or contracts of indemnity against its own losses, shall be deducted from the amount of receipts upon which the tax is to be computed.

It is perfectly true that the Legislature, in the imposition of a tax by way of compensation for the right of a foreign corporation to do business in its corporate capacity in this State, might have measured it by the profits it should earn in this State, or permitted the compensation of its agents to be deducted from the gross or other premiums received from it. It might also have deducted its losses, or the cost of reinsurance to indemnify it against such losses, which would, pro tanto, amount to the same thing. In any case we would have to look to the law to find the legislative will and give it judicial effect. When found, we can only inquire if it be within its constitutional powers. We have no right to modify it, even though we think we might have done better.

The statute is as follows:

‘‘ Every insurance company or association not organized under the laws of this State, shall, as hereinafter provided, annually pay a tax upon the premiums received, whether in cash or tin notes, in this State, or on account of the business done in this State, for insurance of life, property or interests in this State, at a rate of two per cent per annum in lieu of all other taxes except as in this article otherwise provided, which amount of taxes shall he assessed and collected as hereinafter provided: Provided, that fire insurance companies shall he credited with premiums on reinsurance with companies authorized and licensed to transact business in Missouri, which reinsurance shall he reported by the company reinsuring such business; but no credit shall be allowed any fire insurance company for reinsurance in companies not licensed to transact business in Missouri. ’ ’

It will be observed that the nature of the tax is a tax on “business done” and not upon “insurance furnished.” It is too plain for argument that when a valid contract of insurance has been executed and full consideration paid, the business has been done and the premium received. Were the same language used in a private contract between the insurance company and the soliciting agent with respect to his compensation, is it possible that it would be construed as an obligation on his part to return the amounts received by him whenever the company shoujtd see fit to cancel the policy and return the premium1? And is it not to be presumed that in such cases the company, if it should consider that its interest required it would, by the terms of the cancellation, take care of the cost of effecting' the insurance? We make these suggestions solely by way of illustration ; for the appellant, in its petition, has stated as little as possible of the nature and terms of all these transactions, thus placing before us the naked question whether the return of any part of the premium received, will, of itself, operate as a pro rata reduction of the tax subsequently payable.

This statute, omitting the proviso relating to fire insurance companies, was first incorporated in the Revised Statutes of 1879, as Section 6057, and has frequently, since that time, passed under the eye of the Legislature, with slight amendments having no connection with this case until 1905', when that proviso was added, and fire insurance companies were placed upon a footing of their own in respect to the taxation of premiums expended for reinsurance. This was done for reasons apparent to all the world excepting, perhaps, companies which, like this appellant, were exclusively engaged in the business of furnishing, for a consideration called premiums, other classes of indemnity. The great fire in Boston followed by the one in Chicago, and later in other great cities, with their enormous investments in costly buildings, the destruction of which had carried with it the destruction of many insurance companies, directed the attention of the people to the weak point in their fire indemnity. While life and accident sometimes receive shocks like that which has since come in the destruction of the Lusitania, these were weak and harmless in comparison with the dangers from fire which attended the phenomenal growth in costly architecture as well as in population of the great cities. The desirability of encouraging a wider distribution of insurance capital in this class of enterprise had come home with much force to all who depended upon fire insurance, and it seems to us natural that this should suggest the encouragement of reinsurance. The form which it took in this proviso' naturally protected the interests of the people of the State in this respect, by encouraging reinsurance and by inviting companies to come into the State to write it. The classification of fire companies for this purpose was both natural and wise.

In enacting this proviso the attention of the Legislature was evidently directed to the fact that it was thus separating fire insurance companies from all others under the control of the Insurance Department, in the matter of exempting a portion of their gross receipts for premiums from the taxation which had before fallen upon all alike. This was, of itself, evidence that they were satisfied with the plain grammatical meaning in other respects, of the words they had used in the original enactment. Any legislative attempt to forestall the artificial construction contended for by the appellant would have discredited its expressed purpose, and opened the way to endless confusion.

There seems to be a wide difference in the views expressed by the courts of other States upon statutes having more or less similarity to our own, with reference to the premiums returned upon the cancellation of policies. These are fairly represented by the Indiana case of State ex rel. v. Continental Insurance Company of New York, 116 N. E. 929, decided by the Appellate Court of Indiana last June, and cited here by appellant, and Fire Association of Philadelphia v. Love, 101 Texas, 376, decided by the Supreme Court of Texas in 1908, cited by respondent.

While we have great consideration for the opinions of the appellate courts of our sister states-, when these differ on a question actually before us we must choose between them:. In construing a statute of our own State it is our first duty, however, to fairly ascertain, as best we can, the constitutional intent of our own Legislature, and adjudge accordingly.

We therefore hold that the tax in question is assessable upon the gross amount of appellant’s premiums received in this State, or on account of its business-done in this State, without deduction of premiums- returned on account of cancellation of policies or amounts paid for reinsurance of its risks.

It follows that the judgment of the circuit court for Cole County is affirmed.

Bailey, C., concurs.

PER CURIAM: — The foregoing opinion of Be.owu, C., is adopted as the opinion of the court.

All of the judges concur.