author: WHITE, C. PEE CITEIAM:

text:
    GARY REALTY COMPANY v. E. P. KELLY et al.; H. H. TAMMEN and F. G. BONFILS, Appellants.
    Division Two,
    September 15, 1920.
    1. APPELLATE JURISDICTION: Amount Involved: Value of Relief in Money: Incidental Rights Affected. To determine the amount in dispute, for the purpose of determining appellate jurisdiction, the facts must be ascertained from the entire record. Where relief other than a-money judgment is sought by the proceeding, the value of the right necessarily involved, estimated in money, is the measure of appellate jurisdiction; and the amount involved must be determined by the value in money of the relief to the plaintiff, or of the loss to the defendant, should the relief prayed be granted, or vice versa, should the relief be denied. And it is the value of the right determined in the Supreme Court that settles the Question of appellate jurisdiction, and not the rights which may be incidentally affected by a determination of the case.
    J3, -: -: Forcible Entry and Detainer: Motion to Quash Execution: Rights of Movents. Plaintiff brought suit for forcible entry and detainer, and recovered judgment for $2000 damages and $650 monthly rents, both of which were doubled, and on appeal the judgment was affirmed. Thereafter execution was issued for the accrued damages, which at the time, including rents and profits, amounted to $32,829.29, the writ also commanding the sheriff to deliver possession to plaintiffs. Thereupon, movents, who were not parties to the action or judgment, filed a motion in the circuit court to quash that part ,of the execution awarding possession to plaintiff, leaving the part for the money judgment unaffected, and alleging that they are the owners of the property and the holders of the lease upon it, and said motion being overruled they appealed to the Supreme Court. After the case reached the Supreme Court respondents filed a motion to compel movents to give a new supersedeas bond, on the ground that the appeal bond did not comply with the statutes. The Supreme Court sustained tlie motion, but appellants (movents) failed to comply with the order, and plaintiff was put in possession under an alias writ of restitution, thus being deprived of possession for six months and six days. Held, that the amount in dispute is not double the amount of rents' adjudged in the forcible entry and detainer suit, nor is it the value of the possession from the time the appeal was taken from the overruling of the motion to quash until the property of that ruling is determined in the appellate court, but is the actual value of the possession during the six months and six days movents were, in posséssion, which, being less than $1000 per month, as shown by the evidence taken in support of the motion to quash, does not amount to $7500, and the Supreme Court has no jurisdiction.
    3. -: -: -: -: Plaintiff’s Loss. Where plaintiff in forcible entry and-detainer has recovered a right to possession and double the amount of damages and the monthly value of the rents, and a third party files a motion to quash only that part of the execution commanding the sheriff to restore possession to plaintiff, and as a result of said motion plaintiff loses possession for a time, his right to collect the rents from the defendants is not impaired, and the loss he has sustained at the hands of the movents is the value of the actual possession during the time he was deprived of the same.
    Appeal from Jackson Circuit Court. — Hon. Willard P. Hall, Judge.
    Transferred to Kansas City Court of Appeals.

      Frank M. Lowe for movents and appellants.
    To argue that the original judgment or double rent can be disposed of in this proceeding and made to give this court jurisdiction, is too ridiculous to discuss. We cite a few eases, not that the court is not familiar with the rule, hut that it may have them at hand in this connection. Keleher v. Johnson, 199 S. W. 935; Keleher & Little v. Henderson, 203 Mo. 498; Vanderberg v. Kansas ■ ■ City Gas Co., 97 S. W. 908.

      Coopes, Neel & Wright for respondent.
    (1) This being an action in unlawful detainer and the motion to quash being directed only to the possessory part of the execution, the amount in controversy on the question of this court’s jurisdiction is clearly the value of the possession of the premises in controversy. Such value is the rental value since only possession and not tlie title to the property is involved in this action. The only questions are: what is the value of the possession and for what period of time is this value to be estimated in determining this court’s jurisdiction1? The motion of appellants seeks to stay, enforcement of the judgment by execution issued August 4,1919, and the motion was filed on the, same day. Upon-the overruling of this motion by trial court, appellants secured an order staying the execution by appealing to this court and furnishing a supersedeas bond. Such action kept complainant from getting possession until February. 12, 1920, when a new writ of execution was issued upon appellants’ failure to furnish a new supersedeas bond required by order of this court upon respondent’s motion. So, clearly, the decision of this court on this appeal will determine whether appellants are liable to respondent for continuing to withhold possession of the premises in controversy from respondent from August 4, 1919 to February 12, 1920'. The decision will also determine on the other hand whether respondent was entitled to such possession on February 12, 1920, and if not, then appellants were entitled to continue in possession; this appeal, therefore, will also decide the question of respondent’s liability to appellants for the value of the possession from February 12, 1920, up to the time of the determination of this appeal. The two periods of time aforesaid from August 4, 1919, to February 12, 1920, and from February 12, 1920, to the time of the final determination of this appeal will cover, according to our estimate, some ten months. Evidence was offered in the trial court to show the monthly rental value of the premises at the time of the hearing on appellants ’ motion to quash the execution and disclosed same to be $1,000 per month. The value of the possession at the rate of $1,000 per month for ten months is $10,000. (2) But appellants are liable to respondent for double such monthly rental value, for. this court held on the previous appeal that the lease, under which appellants claim, was terminated July 2, 1915, and that respondent has since been entitled to the possession. It. follows that appellants have wrongfully been withholding possession from respondent, and even if appellants prevail on this appeal that decision will not operate to revive a dead lease, but would only have the effect of requiring us to start all over again in our suit to recover possession of respondent’s property. Since appellants are wrongfully withholding .respondent’s possession after demand by execution at the hands of the sheriff, they are liable during all the time of their detention, including the said period from August 4, 1919, to February 12, 1920, to respondent for double the monthly rental value. Sec. 7879, E. S. 1909. And appellants’ liability in this sort of a proceeding, in which they have intervened and filed a bond, is also doubled by operation of Section 7674 and 7675. So, applying these statutes of double liability, we estimate the amount involved at not less than $20,000, and if allowance of further time for final determination of this appeal by reason of possible motion for rehearing and to transfer to Court in Banc, such as were filed on the previous appeal, is made, then the total amount involved might reach $22,000 or $24,000. In fixing the amount of the new supersedeas bond required of appellants by this court by order made on December 22, 1919, evidently a similar basis of calculation was employed, as the court required the bond to be in the sum of $25,000. (3) But even a larger amount in value is really involved on this appeal. - For the effect of sustaining* appellants’ motion to quash would be to render ineffective the judgment for damages secured by respondent in this action, March 18, 1916. That judgment was in favor of respondent awarding possession of premises in controversy, together with accrued damages to date of judgment in the sum of $4000 and at the rate of $1300 per month thereafter, so long as defendants-continued to withhold possession, the trial court fixing the monthly rental value of the property at $650. At the time of the issuance of execution on August 4, 1939, there was an unpaid balance to respondent on this judgment. of $32,829.91, as shown by the writ of execution . set forth in the record. Interest and costs have accrued thereon since said date, August 4, 1919. Our point is that the effect of sustaining this motion would be to hold the judgment unenforcible as a money judgment as well as a judgment for restitution of possession. So we contend this situation increases the amount in controversy by some $35,000 or to a total figure of over $55,000.
   WHITE, C.

The appeal in this case is from an order of the circuit court overruling a motion to quash a writ of restitution.

The plaintiff brought suit, before a justice of the peace in Jackson County, in unlawful retainer, against the defendants E. P. Kelly, W. LeDoux, A; LeMarquand and Paul LeMarquand; the case was certified to the Circuit Court of Jackson County, where, March 18, 3916, judgment, was entered in favor of the. plaintiff against said defendants, awarding possession of certain premises in Kansas City, assessing damages for the unlawful detention of the property at $2,000, and the monthly rents and profits at $650, which were' doubled by an order of the court and judgment, rendered for $4,000 damages, and $1300 per month for rents and profits until the restitution of the premises. The case was appealed to this court where the judgment of the circuit court was affirmed. [Gary Realty Co. v. Kelly, 214 S. W. 92.] After affirmance of the judgment, August 6, 1919, execution was issued for the amount of the damages and costs then accrued, commanding the sheriff to deliver possession to the plaintiff. The amount of damages accrued at the time, including rents and profits up to the date of the issuance of the execution, and doubled in accordance with the terms of the judgment, was $32,829.29.

On August 7, 1919, G. F. Bonfils and Henry G. Tammen, not parties to the suit or the judgment, filed in the circuit court a motion to quash, that part of the execution awarding possession to the plaintiff, leaving the execution for the money judgment against the defendants unaffected. This motion was presented under Section 2244, Revised Statutes 1909, which provides that any person “against whose property any execution or order *of sale shall be issued” may apply to the circuit court for the purpose of having the same quashed. The motion sets up certain alleged irregularities in the certiorari proceeding, whereby the cause reached the circuit court from the justice of the peace, and alleges, among other things, that, the movents are the owners of the property and the holders of the lease upon it.

The motion thus filed by Tammen and Bonfils, on the second day of September, 1919, was overruled, and the same day the movents filed their application and affidavit for appeal and their appeal was granted to the Supreme Court.

After the cause reached this court, a motion was filed therein by the respondents, November 24, 1919, to require the appellants to give a new supersedeas bond on the ground that the appeal bond given did not. comply with Sections 7711 and 7728, Revised Statutes 1909. This court sustained the motion, but the appellants, movents, failed to comply with the order and the plaintiffs were put in possession of the premises February 12, 1920, six months and six days after the execution was issued.

The appellants then filed a motion in this court to transfer the cause to the Kansas City Court of Appeals on the ground that this court is without jurisdiction, and that motion must now be considered.

L The title to real estate is not involved, and tne only question, to be determined in settling the matter of jurisdiction is the money value of the property in issue. If the amount involved exceeds in value seven thousand five hundred dollars (7,500) then this court bas jurisdiction; otherwise, not. To determine the amount in dispute we must ascertain the facts from the entire record. [Keleher v. Johnson, 272 Mo. 699, l. c. 701; State ex rel. v. Ellison, 272 Mo. 571, l. c. 580; State ex rel v. Reynolds, 245 Mo. 704; Wilson v. Drainage & Levee District, 237 Mo. l. c. 40; Bridge Co. v. Transit Co., 205 Mo. l. c. 179-80; Vanderberg v. Gas Co., 199 Mo. l. c. 459; Kitchell. v. Ry. Co., 146 Mo. l. c. 457.]

“Where relief is sought other than in the recovery of a money judgment, the value of the right necessarily involved, estimate in money, will constitute the measure of jurisdiction.” [State ex rel. v. Reynolds, 275 Mo. 113, l. c. 121.] As otherwise stated in Gast Bank Note Co. v. Fennimore Assn., 147 Mo. l. c. 559, “ ‘the amount involved must be determined by the value in money of the relief to the plaintiff, or of the loss to the defendant, should the relief prayed be granted, or vice versa, should the relief be denied.’ ” This statement of the rule is repeated in several cases. [State ex rel. v. Reynolds, 256 Mo. l. c. 718; McCoy v. Randall, 222 Mo. l. c. 34; Clothing Co. v. Watson, 168 Mo. l. c. 143; Fred A. H. Garlichs Co. v. Anderson, 284 Mo. 200.]

II. It is claimed by respondent that the money value involved, as affected by the ruling on' the motion, is much more than the value of the premises during the period of six months and.six days, when the plaintiffs were kept out of possession, from the time the execution was issued until possession was delivered. They assert that a ruling on the motion will determine the right of possession of the property, and the value of that possession must be ascertained, not only during the period mentioned, but extending afterwards, at least until a final determination of the cause in this court. If the action of the trial court were reversed the ruling would not restore the movents to the possession which they lost February 12, 1920. If they should resort to another action to recover possession, the amount involved in such other action would determine the jurisdiction of the court to which an appeal would lie then; that amount is not involved in this proceeding. On the other hand, if the judgment of the circuit court overruling the motion should be affirmed, the time of possession affected by the result would be merely the period during which the plaintiff was kept out of it; the ruling would determine that the movents were in possession six months and six days when they had no right. It would not affect subsequent actual possession. The ruling might, in a subsequent suit, be res adjudicata as to the right of possession, but the direct loss or gain to plaintiff by the ruling would involve only the possession during that period. It is the amount determined in this suit that settles the jurisdiction and not the right which may be incidentally affected.

III. “The amount in dispute” then must be found in ascertaining the value of the possession of the premises during the period of six months and six days in which 'uTmages plaintiffs were deprived of possession by the motion (it seems to be conceded that'the effect of the motion was to keep the plaintiffs out of possession during that period). [Respondent asserts that inasmuch as the judgment on which the execution was issued awarded doubled damages and doubled rents and profits, the judgment settled the amounts of its loss of the possession during that period.

If the respondent is correct in that, then this court has jurisdiction, because the amount would be in excess of $7,500. If the actual value of the possession of the premises during the period is to be taken as the amount in dispute, then this- court has no jurisdiction. The judgment found the value of the rents and profits at six hundred and fifty dollars a month, and evidence taken at the time of the appeal for the purpose of determining jurisdiction did not show the monthly value to exceed one thousand dollars.

It will be remembered that the movents here were not parties to the original judgment. The execution was not issued against them. If their motion had been sustained, it would not have affected the liability of the original defendants in the execution. According to the statement in respondent’s brief a new execution was issued on the twelfth day of February and possession delivered to plaintiff under it. This new execution is not set out in the record; presumably it is an alias in accordance with the requirements of the statute. So far as this record shows, the plaintiff may have recovered under that execution against the original defendants, the entire doubled damages, rents and profits up to the time possession was delivered. The plaintiff was not prevented by the motion from leveying its execution for the full amount; it was prevented from getting possession. When it was deprived of possession during six months and six days what did it lose? Not the doubled rental value of the possession, but the actual possession. The penalty of doubled damages, which is attached as an incident to being deprived of possession did not accrue to plaintiff because it was damaged in that amount, but because by the judgment defendants had violated the law and incurred the penalty thus inflicted.- The execution, if not already collected, may still be collected of the defendants, not the movents, in double the rental value.

The amount involved in this case is not sufficient, to bring it within the jurisdiction of this court, and the case is therefore transferred to the Kansas City Court of Appeals.

Railey and Mosley, GG., concur.

PEE CITEIAM:

The foregoing opinion by White, C., is adopted as the opinion of the court..

All of the judges concur, except Williamson, J., not sitting.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    THE STATE ex rel. THOMAS B. ALLEN et al., Judges of Circuit Court of Buchanan County, v. JOHN M. DAWSON, Circuit Judge, and JOHN BENDEL et al., Judges of County Court, and BUCHANAN COUNTY.
    In Banc,
    October 1, 1920.
    1. INJUNCTION: Eight to Maintain: No Property Eight. If the petition discloses that no property right is sought to be protected by the writ of injunction, and does not allege that some property right has been or is about to be violated, but merely seeks" to enjoin certain judges from performing a right, duty or privilege conferred upon them by a certain legislative act, on the sole ground that said act is unconstitutional, it invokes no ground of equitable cognizance, and the circuit court is without jurisdiction to hear it. The acts to be performed in pursuance to said act are political in their nature, and a court of equity has no jurisdiction to restrain their exercise.
    2. --: - — : Action at Law: Quo Warranto. Injunction cannot be maintained where plaintiffs have an adequate remedy at law; and an action in quo warranto is an adequate legal remedy to prevent circuit judges from exercising the privilege or duty or right to classify and determine the number of deputies to be employed in the various county offices, conferred upon them by statute, and in such proceeding the constitutionality of such statute may be determined.
    3. QUO WAEEANTO: Scope: Franchise. The statute (Sec. 2631, R. S. 1909) cannot be confined to ousting persons from a public office, but Includes every case where “any person shall usurp, intrude into or unlawfully hold or execute any office or franchise,” and the right given by a legislative act to circuit judges to classify and designate the number of deputies to be employed in the various county offices is a franchise. There are many franchises other than purely corporate franchises.
    4. -: -: Franchise: Definition. The word franchise is a generic term. Unless there is something in the context to indicate to the contrary, the usual sense in which the word is generally understood is that of a positive right or privilege to do something otherwise legally incompetent. To be or to exercise the powers of a corporation, or to exercise the duties and perform the functions of a public office, is a franchise. A franchise is likewise a constitutional or statutory right, or privilege, especially a political one, and particularly, the suffrage or right to vote. And in this case it is hela that the duty or right or privilege of circuit judges to classify and determine the number of deputies to be employed in the various county offices, conferred upon them by legislative act, whether such act be constitutional or not, is a franchise; and hence quo warranto is available to test the legality, or constitutionality, of the act conferring the,power or privilege.
    5. -: -: -: No Precedents. The mere fact that “single instances” arrive late at the bar Of justice is no reason for denying them admission or relief. The fact that no case can be found in the . books which clearly holds that quo warranto is the proper remedy to determine the right of circuit judges to classify and determine the number of deputies to be employed in the various county offices — a privilege conferred upon them by legislative act and one it is alleged they are threatening to exercise — is not conclusive that quo warranto will not lie to prevent them from further exercising such privilege or franchise.
    6. PROHIBITION: Court of Equity: Political Acts. Prohibition is the proper remedy to prevent a court of equity from attempting to exercise jurisdiction of an injunction suit in which it is sought to enjoin acts which are merely political.
    Prohibition.
    Preliminary rule made absolute.

      Strop & Mayer for rélators.
    (1) The petition filed in the circuit court discloses that the only purpose of the suit was to enjoin relators from performing certain official acts for the public imposed upon relators by the statute. .It is not even inferentially alleged that any property right is involved. In such a case, a chancery court has no jurisdiction. State ex rel. v. Aloe, 152 Mo. 466; Arnold v. Henry, 155 Mo. 48; Ex parte Sawyer, 124 U. S. 200, 31 L. Ed. 402; Tappen v. Gray, 7 Hill, 259; Cochran v. McCleary, (Opinion by Judge Dillon), 22 Iowa, 80; Heffran v. Hutchins, 160 111. 550; 10 E. C. L. 342-3, secs. 92-93. (2) Prohibition is the proper remedy. State ex rel. v. Aloe, 152 Mo. 466; Arnold v. Henry, 155 Mo. 48; Weaver v. Toney, 107 Ky. 419, 50 L. R. A. 105.

      Culver é Phillip and Randolph & Randolph for respondents.
    (1) Eel'ators ’ motion for judgment on the pleadings admits all facts s-t up by proper pleading in respondents’ return. State ex rel. Ellis v. Elkin, 130 Mo. 90; Ward v. Ryan, 166 Mo. 646; State ex rel. Henson v. Sheppard, 192 Mo. 497. (2) Relators have an adequate remedy at law. Where there is an adequate remedy at law prohibition will not lie. State ex rel. McNamee v. Stobie, 194 Mo. 45; State ex rel. Warde v. McQuillin, 226 Mo. 256; Schubach v. McDonald, 174 Mo. 163. (3) The statutory remedy by injunction was the proper proceeding. Sec. 2534, R. S. 1909. “Equity will not suffer a wrong to be without a remedy.” (4) The case does not involve political rights, but involves the right of the county to transact the county business, under Section 36 of Article VI of the Constitution of Missouri, and the right of the county court to restrain'these relators from making entries in writing upon the records of the county court. (5) The act in question is in violation ofArticle 3 of the Constitution of Missouri, in that it does not keep separate the three departments of government and confers a power on the judiciary belonging to other departments of government. State ex rel. Young v. Brill, 111 N. W. 639, 100 Minn. 499; State 'v. Rogers, 73 N. E. 461, 71 Ohio St. 203; Schwarz v. Town of Dover, 53 Atl. 214, 68 N. J. L. 576; Supervisors of Election, 114 Mass. 247, 19 Am. Rep. 341; Moreau v. Freeholders of Monmouth, 53 Atl. 208, 68 N. J. L. 480; State ex rel. v. Neble, 117 N. W. 523, 19 L. R. A. (N.^S.) 578. (6) Said act is in violation of Section 1 of Article VI of the Constitution in that it confers a power other than judicial upon the judges of the circuit court; and also in violation of Section 22 of Article VI of the Constitution for the same reason stated. (7) Said act is in violation of Section 28 of Article IV of the Constitution in that the title to said act does not clearly express the contents thereof, and said act contains more than one subject. State ex rel. v. Distilling Co., 273 Mo. 103; State v. Great Western Tea & Coffee Co., 171 Mo. 634; State ex rel. v. Revelle, 257 Mo. 529; St. Louis v. Wurtmau, 213 Mo. 131; State v. Sloan, 258 Mo. 305; State v. McEniry, 269 Mo. 228; St. Louis v. Weitzel, 130 Mo. 131. (8) Respondents, County of Buchanan, John Brendel and Jefferson Sampson, are entitled to be discharged from the rule to show cause. They are assuming no judicial power. Prohibition lies only against judicial ‘officers while assuming to exercise judicial functions. Kalbfell v. Wood, 193 Mo. 675; State ex rel. McAnally v. Goodier, 195 Mo. 551.
   WILLIAMS, J.

This is an original proceeding in prohibition whereby relators (the three circuit judges of Buchanan County) seek to prohibit the Honorable John M. Dawson, sitting as Circuit Judge of the Circuit Court, of Buchanan County, fxom entertaining jurisdiction in a certain injunction suit now pending in said court, on the ground that said circuit court has no jurisdiction -of the subject-matter of said suit.

The injunction suit was instituted by two of the judges of the County Court of Buchanan County, and Buchanan C‘ounty, as plaintiffs, against the.three circuit judges of said county (the three relators herein), as defendants, and in substance alleged:

1st. That by the terms of Act of the General Assembly (Laws-1919, page 670) “it is made the duty of a majority of the judges of the Circuit Court of Buchanan County, Missouri, to fix the number of deputies in each of the offices of Buchanan County, Missouri, .• . and to classify such deputies and assistants into Classes A and B as provided” in said law.

2nd. That said circuit judges are undertaking to act under said law to fix the number of deputies in said county offices and to classify them, and that unless restrained will do all the things required of them by said law.

3rd. That said law is in conflict with the Constitution of the State of Missouri in that: (a) It violates Section 1 of Article VI, because the power conferred upon said circuit judges by said statute is not a judicial power; (b) • It conflicts with Section 22 of Article VI, because it invests the circuit judges with jurisdiction over appointive offices; (c) It conflicts with Section 36 of Article VI, which gives to county courts the right to transact all county business, and said act affects the amount of county revenues which is to be paid for the employment of deputies in the county offices; (d) It conflicts with Section 28 of Article IV in that the title to said act does not clearly express the general contents thereof, and said act contains more than one subject; (e) It violates Article III, because it does, not keep separate the three departments of State government.

4th. That plaintiffs have no adequate remedy at law for the purpose of enabling them to exercise proper control over the affairs of the county in the respect above stated.

The prayer of the petition asks that the defendants be permanently enjoined from performing any of the privileges or duties provided by said act.

The defendants answered in the injunction suit, admitting that unless enjoined they will perform the duties imposed upon them by said act; deny that said act is unconstitutional, and further allege “that plaintiffs have no right or power to institute this suit; that said suit has not been instituted by any person having authority to institute such suit; that no property or property right of any or all of said plaintiffs is affected in any way whatever by said act, whether said act he held to be constitutional or otherwise, and the petition herein shows that the plaintiffs are not entitled to any injunctive or other equitable relief” and “defendants deny the right and power and jurisdiction of this court to interpose in this case for the protection or regulation of rights which are merely political and where no civil or property right is involved.”

All of the judges of the Circuit Court of Buchanan County being parties to the injunction suit and therefore disqualified to try the case, Hon. John M. Dawson, Judge of thé Fourth Judicial Circuit, was called in to sit in the case.

The Act of 1919 (which is intended to apply to counties which now contain or may hereafter contain a city of 75,000 inhabitants and less than 200,000 inhabitants) provides:

“The collector of revenue, clerk of the circuit and criminal courts, clerk of the county court, assessor, recorder of deeds, county treasurer and any other county officer, in the discretion of the majority of the circuit judges of the county, shall each be entitled to such a number of deputies and assistants, to be appointed by said county officer, as the majority of the circuit judges of the county shall deem necessary for the prompt and proper discharge of the duties of their various offices, and such deputies and assistants shall be divided into classes as follows, and be paid in the same manner as the officers: Class A. assistants or deputies; Class B, office clerks and copyists. Class A shall be paid fifteen hundred dollars per year. Class B shall be paid twelve hundred dollars per year. The decision of such majority of circuit judges to be in writing, specifying the number of deputies and assistants for each officer and their classes, and spread upon the record of the county court.” Approved May 26, 1919.

I. A mere reading of the petition filed in the injunction suit discloses that no property rights whatever are in any manner sought to he protected, nor does the petition allege, or attempt to allege, that any ProPerty right has been violated. It merely seeks to enjoin the three persons named from performing the right, duty or privilege conferred upon the majority of them by the Act of 1919, supra, on the sole ground that said act is unconstitutional in the respects mentioned.

It will thus be seen that the injunction suit is, to say the least, unique. We are cited to no case holding that a court of equity has jurisdiction to issue an injunction under such conditions, nor has diligent search upon our part disclosed such a case.

The facts alleged, or attempted to be alleged, in the petition certainly do not invoke any of the recognized •heads of equity jurisdiction.

On the other hand it is a well recognized rule that a court of equity has no jurisdiction to restrain acts which are merely political in their nature and effect. [State ex rel. v. Aloe, 152 Mo. 466, l. c. 480; 4 Pomeroy’s Equity Jurisprudence (4 Ed.), par. 1743 and 1746 and cases therein cited; 10 R. C. L. 342-343; 1 High on Injunctions, sec. 20b; 22 Cyc. 757.]

The facts alleged, or attempted to be alleged, in the petition in the injunction suit disclose the violation of no right other than a purely political one, and since no facts are alleged which invoke any of the different grounds of equity jurisdiction it clearly follows under the numerous authorities above cited that the circuit court in the case at bar is without jurisdiction to grant the injunctive relief, prayed.

II. Neither are we able to agree with respondent that the plaintiffs in the injunction suit have no adequate remedy at law as is alleged in their petition for the injunction. On the other hand we are of the opinion that an adequate legal remedy is furnished by a proceeding m quo warranto.

It is true that title to an office is not involved, because the Act of 1919, supra, does not create.or undertake to create a public office. It merely confers, or attempts to confer, upon certain designated persons certain privileges, rights and duties by them to be performed. These privileges and powers are directly granted by the sovereign State by the legislative act in question, and would not exist but for said grant.

Our statute on qúo warranto, Section 2631, Revised Statutes 1909, includes every case where'“any person shall usurp, intrude into, or unlawfully hold or execute any office or franchise.”

We are of the opinion that the right given by the Act of 1919, supra, to the majority of the Judges of the Circuit Court of Buchanan County to determine the number and to classify the deputies to be employed in the offices of said county is a franchise, within the meaning of the above mentioned statute.

It is true that the great majority of quo warranto cases dealing with franchise rights are cases which deal with corporation franchises. .But there are many franchises other than purely corporate franchises. The word “franchise” is a generic term. Webster’s New International Dictionary, under the title, franchise, gives among others the following definitions: “Franchise is a word of extensive signification. It is defined by Finch, whom all .subsequent writers have followed, to be 'a royal privilege in the hands of a subject.’ 15 Serg. & R. (Pa.) 127-130. . • . . The usual sense (in which it [franchise] is to be generally understood without something in the context to indicate the contrary) is that of a positive right or privilege to do something otherwise legally incompetent; such as, the' right to operate a ferry or a raili'oad; to be, and exercise the powers of, a corporation; to exercise the duties and perform the functions of a public office.” (Italics onrs)

“It is a constitutional or statutory right or privilege, especially a political one, and particularly, the suffrage or right to vote. ”

The fact that no case can he found in the books which clearly holds that quo warranto is the proper remedy to determine the right to exercise the privilege attempted to be exercised by the defendants in the injunction suit is not conclusive that quo warranto will not lie in such cases. The mere fact that “single instances” arrive late at the bar of justice is no reason for denying them admission and relief. The only concern is whether under well established principles of the law relief can be granted. While we find no case holding in express terms^that quo warranto is the proper remedy, neither do we find any authority holding that it is not the proper remedy. However, we find cases announcing principles which point unerringly to quo warranto as the only proper remedy in instances like the one now held in judgment and others which by analogy greatly strengthen the' belief that such is the proper remedy.

There is not much learning to be found upon the exact question under review. The clearest discussion which we have been able to find on the subject is to,be found in Cochran v. McCleary, 22 Iowa, 75. In that case in an able opinion by Dillon, J., it was held that the right t*o preside over the meetings of a city council is a “franchise” within the meaning of the Quo Warranto Act of Iowa and that quo warranto, and not injunction, was the proper remedy to determine who was entitled to exercise that right. In that case many authorities are examined, including: Reynolds v. Baldwin, 1 La. Ann. 162, which held that the right of the recorder who was ex officio president of the council to vote in cases where there was a tie was a franchise, and that the person who usurped that right usurped a franchise and conld be ousted from such usurpation by a proceeding in quo warranto; Rex v. Williams, 1 Burrow, 402, holding that ‘ ' an information in the nature of quo warranto may be granted at common law for illegally holding a court of record within a charter borough and presiding therein in the absence of bailiffs, the defendant not being one of them. The reason is that this is an usurpation of the franchise of holding the court.”

In the case of Cochran v. McCleary, supra, at page 85, Dillon, J., speaking for the court, used the following clear and forceful language:

“The defendant had, as we have seen, no right, by virtue of his office as mayor, to preside over the meetings of the council. That he supposed he had such right, we have no reason to doubt, but this would not make his claim to preside over and act as a member of the council any the less unfounded. Insisting that he had the legal right to preside, the defendant, against the wishes of á majority but probably in accordance with the wishes of a minority of the council, sought to exercise this right by force: so the president pro tern, claimed and sought to exercise his right to preside by force. . . .
“But the inquiry which now concerns us is as to the proper legal mode to test the question, whether the mayor or the president pro tem. had the legal right to 'preside. In England, and in the different states in this county, the law, solicitous to furnish a remedy for every invasion of legal right, has provided that of quo warranto or an information in the nature of a quo warranto, to determine the title of an officer to his office, and to determine the right of any person or corporation to exercise, a public franchise. . . .
“Now our statute (Eev. ch. 151) on the subject of informations, finds its original in the Statute of 9 Anne, 'chapter 20., Ours, however, is broader, and extends to cases not embraced in the English act. Our statute ‘(Sec. 3732) provides that, 'An information may be filed against any person unlawfully holding or exercising any public office or franchise within the State, or any office in any corporation created by the laws of this State,’ ... or ‘when corporation exercise powers not conferred by law.’
“Plaintiffs claim that the statute does not apply, because they do not deny that the defendant is mayor, and do not question his right to discharge the appropriate duties of that office. On the contrary, they admit that the defendant is mayor, and say they only seek to restrain bim from interfering with matters which do not pertain to his official duties or powers.
“The Statute of Anne contains the same words, ‘office’ and ‘franchise’ as ours, although these words are used in our statute without any restriction to municipal franchises or officers. Our statute further provides that, ‘When several persons claim to be entitled to the same office or franchise, an information may be filed against all or any portion thereof, in order to try their respective rights thereto.’ [Sec. 3743, and see Secs. 3744-5, as to form of judgments.]
“It may be conceded that the present is not the case of a contest for an ‘office,’ and that right of presiding over the council is not the ‘holding and exercising of a public office,’ within the meaning of our statute (Chap. 151) of quo ivarranto. [Sections 3732, 3743, supra.]
“But the question remains, whether the right to preside over the meetings of the council is a ‘franchise,’ within the meaning of the same statute.
“If it is, and if the claim to exercise and hold it is unlawful, then an information under Chapter 151 is,the proper legal mode to exclude the illegal claimant from the usurped right..
“We have examined the English and American adjudications with great care, to see whether^ the remedy by quo ivarranto would lie to test the right of a person to preside 'over a public corporation. And upon the subject we have no doubt. The authorities are uniform to the point that, to determine a question of this character, quo warranto is the proper, if not, indeed, the only legal remedy. We cite some of the more pertinent authorities in a note, some of which, it will be observed, are directly in point.
“The adjudications proceed upon this reasoning: a public corporation can' only emanate from proper authority — in this country from the Legislature. The right to preside therein is a legal right conferred by law. This right is a ‘franchise’ or privilege, given by law, and therefore, if invaded, the law affords a means of redress, a remedy, and this remedy is by quo warranto, or information, in that nature.” (Last italics ours).

So in the case at bar, applying the principle announced in the above case, we think the deduction a fair one that the right to determine the number of deputies in the county offices of Buchanan County is likewise a legal right conferred by the sovereign State upon the citizen, and is as clearly within the definition of the word franchise as is the right to preside over a city council.

The Missouri statute on quo warranto is sufficiently similar to the Iowa statute above mentioned that the above case may be considered as persuasive authority here.

We therefore hold that the rule announced in the 'above case is applicable to the facts of this case, and that quo warranto is the proper remedy.

III. In the case of State ex. rel. v. Aloe, supra, it was held that prohibition is the proper remedy to prevent a court ‘of equity from attempting to exercise jurisdiction of a suit which sought to enjoin acts were mereiy political. We see no reason why the doctrine of that case should not be applied here. It therefore follows that the perliminary rule should be made absolute.

It is so ordered.

Walker'C. J., Graves and Williamson, J.J., concur; Blair, J., concurs in paragraph one and the result; Goode, J., concurs in paragaph one and result but expresses no opinion as to paragraph two; Woodson, J., absent.


author: LEAVES, J.

text:
    E. T. BROWNING v. NORTH MISSOURI CENTRAL RAILWAY COMPANY, Appellant.
    In Banc,
    October 1, 1920.
    1. REFERENCE: Discretion of .Trial Court. The discretion of the trial court in ordering a reference is reviewable in the appellate court.
    2. -: Long. Account: Denial of Jury Trial. Even though the items sued on constitute items of account, yet if the account stated is susceptible of easy calculation and computation by a jury it cannot be referred over the objection and protest of defendant. The statute providing for reference of a case involving long accounts is an exception to the right of trial by jury, and should not be extended to apply to any case unless it clearly appears to fall within its letter and spirit. [Following Ice Co. v, Tamm, 138 Mo. 1. c. 389-90.]
    Appeal from St. Louis City Circuit Court. — Hon. M, Hartman, Judge.
    Reversed and remanded.

      Charles G. Revelle and N. T. Gentry for appellant^
    (1) The court erred in denying the defendant its right to a jury trial and in compulsorily referring the cause to a referee, (a) The primary purpose of this action is to obtain damages and such actions cannot be compulsorily reférred. Reed v. Young, 248 Mo. 606; Elks Investment Co. v. Jones, 187 S. W. 71; Martin v. Hall, 26 Mo. 389; Eobinson v. N. Y. Eailroad Co., 12 N. Y. St. 66, 109 N. Y. 658. (b) Demands arising from breach of contract, however numerous and though separately itemized, do not constitute an account. Eeed v. Young, 248 Mo. 606; Tunison v. Snover, 56 N. J. L. 41; Telephone Co. v. Bickford, 142 N. Y. 224; Morrison v. Benthuysen, 103 N. Y. 675; Andrews v. Insurance Co., 73 Wis. 642; Ice Co. v. Tamm, 138 Mo. 385; Wiley v. Logan, 96 N. C. 510; 34 Cyc. 782. (c) Where the substantial issue involved is fraud a reference cannot be ordered. Morrison v. Horrueks, 40 Hun. (N. Y.) 428; Freeman v. Insurance Co., 13 App. P. E. (N. Y.) 124. (d) Where there is but one principal transaction, as where services are all performed under one contract, a long account is not involved. Eussell v. McDonald, 425 App. Div. 844; Smith v. Assurance Corp., 114 N. Y. App. Div. 868. (e) In order to authorize a reference, the account must be directly and not merely collaterally or incidentally involved; in other words, the account must be the primary object of the action. Doyle v. Eailway Co., 136 N. Y. 505; Kamp v. Ingersoll, 86 N. Y. 433; Lumber Có. v. Bernard, 131 Wis. 284; 34 Cyc. 785; Aronin v. Casualty Co., 54 Misc. (N. Y.) 630. (f) The terms “examining a long account” are used in the statute in the sense in which they are ordinarily understood, and do not imply an account stated or a bill of particulars, but refers to a series of charges made at various times covering many transactions between the parties, or to an account kept by one party or the other — a series of charges made at various times as the transactions occurred. Eeed v. Young, 248 Mo. 616; Ice Co. v. Tamm, 138 Mo. 385; Whitwell v. Willard, 1 Metc.‘ 216; Investment Co. v. Jones, 187 S. W. 75; Ittner v. Exposition Assn., 97 Mo. 385; 34 Cyc. 782. (g) Even if the present case involved the examination of a long account, the real issues framed by the answer and reply are such that if the defense prevailed upon the issues-tendered by the answer, plaintiff’s cause would fail. The general rule is that where there is. an issue, the determination of which may render an accounting unnecessary, a reference should not he ordered until such issue is decided and an accounting found necessary. Malone v. Church, 172 N. Y. 269; Duckworth v. Duckworth, 144 N. O. 620; Beagers v. Chappelear, 104 Yt. 44. (h) Even if it could be said that the demands sued upon amount to an account, they do not constitute a long account. Ice Co. v. Tamm, 138 Mo. 385. (i). The contract was conditional and never became operative.

      Fauntleroy, Cullen S Hay and Ralph T. Finley for respondent.
    The court did not err in holding that this is a case for compulsory reference. (1) The .pleadings and evidence in this case show conclusively that the determination of the issues involves the examination of a long, account. Ittner v. St. Louis Exposition Assn., 97 Mo. 567; Lumber Co. v. Stoddard Co., 113 Mo. App. 317; Phillips v. Todd, 180 S. "W. 1039; Smith v. Haley, 41 Mo. App. 6.11; Keifschneider v. Beck, 148 Mo. App. 725; State v. Bailrbad, 24 111. 188; B. S. 1909, sec. 1996. (2) The mere fact that the action is for breach of contract does not prevent a reference, provided the items are proper eharg’es of account under the contract. Craig v. Furniture Co., 187 S. W. 797; Yalleroy v.- Enright, 179 Mo. App. 556; St. Louis v. Parker-Washington Co., 271 Mo. 229; State ex rel. v. Keynolds, 245 Mo. 689; Chicago & N. W. By. Co. v. Faist, 87 Wis. 360, 58 N. W. 745. (3) Compulsory reference is not error as to matters not constituting, a good defense or as to which proof failed. Arensmeyer v. Ins. Co.. 254 Mo. 380; Dee v. Nac'hbar, 207 Mo. 680; B. S. 1909, sec. 2082.
   LEAVES, J.

This is an action for a breach of a contract. Both sides so denominate it. The first count alleges a contract between plaintiff and defendant by the terms of which plaintiff was to furnish to defendant certain railroad ties, and poles for its proposed electric railroad from Mexico, Missouri to North Jefferson, Missouri. With the views that we have of the case the fuller details of the contract will serve no good purpose. Nor are the subsequent agreed modifications of the contract, as alleged, material for our disposition of the case. Suffice it to say in this count of the petition the plaintiff charges:

“Plaintiff now shows to the court that as his duty was under said contract he delivered to the defendant on defendant’s right-of-way on or before the 1st day of May, 1910, 3474 No. 1 ties of the' kind and' character in said specifications mentioned and 421 No. 2 ties of the kind and character in said specifications mentioned, whereby defendant became indebted to him in the sum of $2489.65, for which on the 4th day of May, 1910, defendant executed and delivered to him an acceptance, a copy of which is herewith filed, marked ‘Exhibit D,’ and made a part of this petition.
“That on or before the 30th day of June, 1910, plaintiff under and by virtue of the terms of said contract, delivered to the defendant on defendant’s right-of-way 4638 No. 1 ties and 400 No. 2 ties of the dimensions and character described in said spécifications, whereby defendant became indebted to plaintiff in the further -sum of $3234.70, for which defendant executed and delivered to plaintiff acceptances of date July 7, 1910, copies of which are hereto attached, marked respectively ‘Exhibit E’ and ‘Exhibit F,’ and made a part hereof.
“That on or before June 30, 1910, under and by virtue of the terms of said contract, plaintiff delivered to defendant in the Town of Columbia, Missouri, 1011 No. 1 ties and 76 No. 2 ties of the kind and character required in the specifications attached to said contract, whereby defendant became indebted to the plaintiff in the further sum of $731.56, and for which defendant executed and delivered to plaintiff an acceptance of date July, 7, 1910, a copy of which is herewith filed and marked ‘Exhibit G’ and made a part of this petition.
“That on or before July 31, 191/), under and by virtue of the terms of said contract, plaintiff delivered to defendant at Columbia, Missouri, 1478 No. 1 ties and 147 No. 2 ties of the kind and character contracted for by defendant, for which defendant became indebted to plaintiff in the further sum of $1090.30, for which defendant executed and delivered to plaintiff acceptances of date of July 12, 1910, and July 16, 1910, copies of which are herewith filed, marked 'Exhibit H’ and ‘Exhibit I,’ and made a part hereof.
“That on or before September 20, 1910, under and by virtue of the terms of said contract, plaintiff delivered to defendant on various p.oints on defendant’s right-of-way 11,473 No. 1 cross-ties of the kind and character • contracted for by the defendant, for which defendant then and there became indebted to plaintiff, and bound to. pay him at the rate of sixty-five cents for each tie; and on or before the same day plaintiff delivered to defendant, on defendant’s right-of-way 1,882 No. 2 cross ties of the kind contracted for, for which defendant then, and there became indebted to plaintiff in the sum of fifty-five cents for each tie, amounting’ in the aggregate to $8532.55; that defendant has refused to inspect or accept said ties and that said ties are worth at the nearest market point forty-five cents for the No. 1 ties and twenty-two cents for the No. 2 ties, and that it will cost plaintiff $2374.64 to remove said cross ties from said right-of-way to such nearest market point and the plaintiff shows to the court that the greatest sum that he can realize upon the sale of said ties at the nearest market points is $3202.25, which being subtracted from the contract price agreed to be paid to plaintiff by defendant, leaves due him as his damage upon said ties, the sum of $5330.30.
“‘Wherefore plaintiff shows that defendant became indebted to him by reason of the premises for ties de-, livered and accepted in the sum of $7464.85, and for damages for the ties so delivered, but not inspected or accepted, in the sum of $5287.23.
“That before July 1, 1911, plaintiff could have furnished within the time required by said contract 136,326 cross ties of the kind and character provided for in plaintiff’s contract with the defendant- and 6074 No. 2 cross ties of the kind and character provided for in plaintiff’s contract with defendant, and that plaintiff was then and there and at all times able, ready and willing tó deliver the same, but that defendant stopped and prevented the delivery thereof, as will more fully hereinafter appear, and plaintiff shows to the court that the market values of said ties at the nearest market points are, to-wit, forty-five cents per tie for No. 1 ties and twenty-two cents per tie for No. 2 ties, for which price the plaintiff could have furnished said ties, and that plaintiff will lose in the sale of said ties the difference between the cost of furnishing and delivering the same to defendant, to-wit, the sum of $29,269.62.
“That before July 1, 1911, plaintiff could have procured and furnished to the defendant, under and by virtue of hiá said contract and supplements thereto, in order to fulfill the same, twenty-five hundred cedar poles,' of the dimensions of seven inches at the small end by forty feet in length, and of the kind and character mentioned in plaintiff’s contract with the defendant, for which defendant had agreed and had become bound to pay plaintiff the sum of $7.35 each, and five hundred Northern Cedar poles, of the dimensions of six inches in diameter at the small end by thirty feet in length, and of the kind •and character in plaintiff’s contract mentioned, for which defendant promised and became bound to pay plaintiff the sum of $2.35 per pole; that the larger poles could have been furnished by the plaintiff at the cost to him of $6.35 per pole, and that the said smaller poles could have been furnished by the plaintiff at the price of $2.30 each; that the defendant has refused to accept said poles, although they comply with the poles contracted for between plaintiff arid defendant in every respect.
“Wherefore plaintiff shows to the court that he has suffered damage in the sum of $1,825, because of the refusal of defendant to carry out its contract with him with reference to said poles.
“That before July 1, 1911, plaintiff could have furnished for future delivery to the defendant, under and by virtue of said contract, fifteen sets of switch ties, amounting' to $1236 in the aggregate; that defendant has refused to accept said switch ties, and that the cost to plaintiff of procuring and delivering said switch ties to the defendant would have been five cents per lineal foot and íio more; and plaintiff shows to the court that he has suffered damage in the sum of $766.03 by reason of the failure of defendant to accept said switch ties.”

Following the foregoing are the alleged breaches of the contract, and a prayer for a judgment under this count of $45,897.44, with interest thereon at six per cent from 28th of September, 1910. Such is the first count.

By the second count plaintiff avers that he deposited with defendant in trust and to insure his good faith in carrying out the contract, the sum of $500, and he asks judgment for this sum, with accrued interest, alleging breaches of contract by defendant.

The third count is an action for money advanced to defendant in the aggregate of $784.75, made up of nine specific items, giving the dates of each.

Over the objections and protests of the defendant the trial court ordered a reference in the case. The answer filed by defendant in no wise aids the trial court in the matter of compulsory reference, but there may be some matters therein which may be adverse to that action, and may be relevant in determining the question of the courts right to refer the case. If so, they can be noted in the course of the opinion.

It should be noted that in the first count, there are five items of accepted ties, two items of non-accepted ties (with the claim for damages for the refusal to accept), and the remainder are three claims for damages (1) upon ties that'he could have furnished, (2) for poles that he could have furnished, and (3) for switch ties that he coqld have furnished.

As said the answer in this case in no way adds to the length or intricacy of the account presented by the plaintiff. It challenges (I) the validity of the alleged contract, (2) the validity of the alleged ratification of the alleged contract, by averring that such ratification was procured by fraud, (3) misjoinder, (4) other facts putting in issue the liability for ties alleged to have been delivered. So runs the defense to the first count. We may not have them in full, but enough to show that they contest the right to recovery and do not add to the account. So also as to the answer to the second and. third counts of the petition.

The few items under the first and second counts of the petition arise out of the alleged breaches of the contract pleaded. For the purposes of this case we need not stop to consider whether or not such items, so arising, are items of “long account” as contemplated in the compulsory reference laws, Section 1996, Revised Statutes 1909. We may concede that these few items come within the terms of the statute and that they are items of an account between the parties. But with this concession the troubles of plaintiff are not dissipated. The case must fall within the spirit as well as the letter of the reference law, before a person can be deprived of his right to a trial by jury. The discretion of the trial court in ordering- a reference is reviewable here. [Ice Co. v. Tamm, 138 Mo. l. c. 389-90.]

The case of Ice Co. v. Tamm, supra, is a clear ruling on such an account as we have before us in the present case. In that case (138 Mo. l. c. 392) we have set out the account involved. It is as intricate and practically as long as the one set out in the petition in our present case. We ruled that it was not such a long account as to be within the meaning of the reference law. We closed that case by saying:

“No case in this court is a precedent for holding a case so simple in its nature and so susceptible of easy calculation and computation by a jury as falling within the spirit of Section 2138. Certainly the whole issue could have been tried by a jury in a short time without any unnecessary delay or complication.
“As the statute itself is an exception to the right of trial by jury we; shall not extend it by loose construction. On the contrary a case should clearly appear to fall within the letter and principle of the exception before a party can be deprived of his jury trial. For this error alone the judgment is reversed and the cause remanded for trial in the circuit court.”

The reference in the instant case cannot stand, without overruling’ the Tamm case. In our judgment we should not overrule that case. It is sound in principle. So that even if we concede that the items sued for by the plaintiff constitute items of an account, yet the account stated is not so long or intricate as to bring it within the letter or spirit of the compulsory reference law.

Defendant was entitled to a jury trial in this case, and for the error committed in sending the case to a referee, the judgment is reversed and the cause remanded.

All concur, except Woodson, J., absent.


author: BLAIR, J.

text:
    MACON COUNTY v. BARNETT R. WILLIAMS, Appellant.
    In Banc,
    October 1, 1920.
    1. COMPENSATION OF JUDGES: Traveling Expenses. Actual expenses incurred by a circuit judge while engaged in holding court at any place in his circuit other than the place of his residence, is not compensation, and the allowance by statute of twelve hundred dollars a year for such expenses is not to be considered a part of his salary.
    2. COMPENSATION OF PROBATE JUDGES: Equal to Salary of Circuit Judge. Where the statute provided that the amount of fees a judge of the probate court may retain for his own use shall not exceed “a sum equal to the annual compensation pro-Tided by law for a judge of tbe circuit court having jurisdiction in said county,” tbe word “compensation” does not include the twelve hundred dollars allowed by law to tbe circuit judge for necessary expenses incurred by him while bolding court at any place in bis circuit other than tbe place of bis residence, but means only the two thousand dollars which tbe statute says be shall receive1 2for his services; and tbe probate judge is not entitled to credit on account of salary at tbe rate of $3200 a year, but only at tbe rate of $2000 a year on that account.
    3. COMPENSATION: Expenses. Administrative Interpretation of Statute. Contemporaneous practical construction by tbe State Auditor of a former statute, that tbe words therein providing funds for paying tbe expenses of judges then in office did not include their compensation, but was in addition thereto, is of aid to tbe courts in construing similar words in statutes subsequently enacted.
    Appeal from Chariton Circuit Court. — Eon. Fred1 Lamb, Judge.
    Affirmed. •

      Ben Franklin, Dan R. Hughes and John R. Hughes for appellant.
    (1) The constitutionality and some other pertinent questions involved in Sec. 10695, R. S. 1909, with much research and some patience, seems to be settled in this State. At least no question is made in this case as to its Constitutionality. State ex rel. v. Imel, 280 Mo. 565. (2) Section 10684, providing for $100 per month for expenses of circuit judges, was enacted by the Legislature in 1905, and approved March 10, 1905, Section 10695, was enacted by the Legislature during the session of 1905, and fixed the compensation of probate courts, and was approved April 1, 1905, more than thirty days after the passage of the act providing for $100 per month for expenses of circuit judges. (3) Compensation of a circuit judge for the same year measures the compensation of the probate judge. It fixes the maxium compensation of the probate court not a stated salary of the circuit judge, but the total of all emolument he secured by virtue of his being circuit judge, and constitutes his compensation. State ex rel. McGrath v. Walker, 97 Mo. 162; Cunningham v. Current River Ry. Co., 165 M*o. 270; Bates v. City of St. Louis, 15-3 Mo. 18; 29 Cyc. 1428; 36 Cyc. 1106-7. Compensation is a generic term and includes salary, fees, pay, remuneration for official services performed, in whatever form or manner, or at whatever periods the same may be paid. State ex rel. v. Farmer, 271 Mo. 306; State ex rel. v. Rumbold, 238 Mo. 168; People ex rel. Bockes v. Wemple, 115 N. Y. 309.

      Waldo Edwards, Prosecuting Attorney, George N. Davis and Ed. S. Jones for respondent.
    (1) The right to salary, as a public officer, is a legislative grant and is to be strictly construed against the officer. City of St. Louis v. Banks, 107 Mo. 611; Sanderson v. Pike County, 195 Mo. 605; Green County v. Lydy, 263 Mo. 77. (2) Section 23, Article 6, Constitution of Missouri, provides that, judges of circuit courts and other courts of record receiving a salary shall, at stated times, receive such compensation for their services as may be provided by law, but it shall not be increased or diminished during the period for which they were elected. Cunningham v. Current River Ry. Co., 165 Mo. 277. To such constitutional prohibition, it is the compensation for services to be rendered and not traveling and other incidental expenses that is forbidden to be raised. Kirkwood v. Soto, 25 Pac. 488. (3) Section 10695 provides that the amount of fees collected by the probate judge shall be limited to a sum equal to the annual compensation provided by law for judges of circuit courts having jurisdiction in such county. The $1,200 being here allowed as and for expense money is not. compensation provided by law for circuit judges nor is it compensation of circuit judges for their judical services within the meaning of such statute. Milwaukee County v. Halsey, 136 N. W. 139; Kirkwood v. Soto, 25 Pac. 488; State ex rel. Buchanan Co. v. Imel, 280 Mo. 565; State ex rel. Green Co. v. Lydy, 242 Mo. 316; State ex rel. Gray v. Wilder, 206 Mo. 541; McCoy v. Hamden, L. R. A. 1915 E. 858. (4) A contemporaneous and practical construction given by the Legislature and those concerned in the administration of the law is entitled to great weight. Cook Co. v. Healey, 78 N. W. 623.
   BLAIR, J.

This action grew out of a difference of opinion concerning the maximum amount of fees which the probate judge in Macon County might legally retain for the years 1915, 1916, 1917 and 1918. The judgment is for $3309.33. Approximately one-third of this sum was held by the trial court to be due for each of the years 1916, 1917 and 1918. Nothing was found due for 1915. In 1916, 1917 and 1918, appellant collected, respectively, $3307, $3770.20 and $3941. The trial court credited appellant with salary at $2000 per annum and allowed him credits for clerk hire. Appellant’s position is that he was entitled to credit on account of salary at the rate of $3200 per annum. If he is correct in this, the judgment is wrong. This is the sole question he briefs.

Macon County has a population of less than 150,000. and it and Shelby County constitute the Second Judicial Circuit of this State.

Prior to the Act of April 1, 1905 (Laws 1905, pp. 155, 157; Sec. 10695-, R. S. 1909), the probate judge of Macon County was entitled to retain all fees collected. By the act mentioned this was changed. The amendment provided that:

“Provided further, that whenever, after deducting all reasonable and necessary expenses for clerk hire, the amount of fees collected in any one calendar year by'or for any one probate judge in any county in this-State during his term of office, and irrespective of the date of the accrual of such fees, shall exceed a sum equal to the annual compensation provided by law for a judge of the circuit court having jurisdiction in sach county, then it shall be the duty of such probate judge to pay such excess less ten per cent thereof . .• . into the treasury of the county in which such probate judge holds office, for the benefit of the school fund of such county. ’ ’

Appellant contends the “compensation” of the circuit judge having jurisdiction in Macon County was, in the years mentioned, $3200. Respondent contends, and the trial court held, it was $2000. The meaning of the word “compensation” as it appears in the statute is the key to this case.

Section 9697, Revised Statutes 1899, provided that: “The officers of State shall receive for their services, annually, the following sums: . . . third, the judges of the circuit courts, each, two thousand dollars; . . . ”

Section 9701, Revised Statutes 1899, provided that:

“Every judge of a circuit court or of a criminal court in this State shall be allowed and paid all sums of money actually expended by him in necessary expenses while engaged in holding any regular, special or adjoiirned term of court at any place in his circuit other than the place of his residence therein, or while engaged in going to and from any such place for the purpose of holding such terms of court, and such sums of money for said expenses shall be paid out of the State Treasury-in the same manner that the salaries of circuit judges are now paid by law; but no money shall be paid from the Treasury under the provisions of this section until such judge shall file an itemized account with the State Auditor, showing such actual expenses incurred by him. ’ ’

This section (Sec. 9701, R. S. 1899) was separately enacted in 1895 (Laws 1895, p. 128) and the title of the act was: “An Act to provide for the payment of the expenses of the judges of the circuit courts of this State, while holding court in their circuits.”

March 10, 1905 (Laws 1905, pp. 291, 292), Section 9701, Revised Statutes 1899, was amended. The amendatory act was entitled: “An Act to repeal Section 9701 of the Revised Statutes of' Missouri of 1899, relating to the expenses of the judges of circuit courts and criminal courts, and to enact a new section in lieu thereof relaff ing to the same subject and to be known as Section 9701.” Section 1 of this Act of 1905 follows the title, and the new section enacted (now Section 10683, R. S. 1909) substituted a lump sum of $1200 per annum to cover the expenses provided for in the old section and the amended one.

This question, whether allowances to .officers for expenses comes within the meaning of the word compensation, has arisen in several cases. In Wisconsin, under a constitutional provision somewhat analogous to ours, in so far as the question presented was concerned, it was held that a statute providing for a payment to each circuit judge of $400 per annum “as and for his necessary expenses while in discharge of his duties.” did not constitute additional “compensation” in the constitutional sense. [Milwaukee County v. Halsey, 149 Wis. l. c. 87.] In McCoy v. Handlin, 35 S. D. l. c. 514 et seq., under a more comprehensive, constitutional provision than ours, the Supreme Court of South Dakota held that an allowance of $600 per annum to the supreme judges “in consideration of expenses” was not in violation of the prohibition against increasing the compensation of judges. The court held that the salary provided could not be increased, but that the allowances of expenses, as such, did not have that effect. In considering a similar question with respect to a claim that a Federal judge, who occupied a bouse belonging to the Government in the Canal Zone, must account for the rent thereof, Clayton, J. (Smith v. Jackson, 241 Fed. l. c. 770), quotes from the, opinion in the case of McCoy v. Handlin, as follows:

“There it was said: ‘It is clear that the Legislature did not intend, in the enactment of such legislation, to increase the salaries of the judges, or to grant them any perquisites or emoluments for the discharge of their duties, hut only intended to assure them, in so far as possible, that for the performance of their official duties alone, and not for the performance -of such duties and the payment of the expenses incident thereto, they should receive the salaries provided by law for the performance of such duties. ’ And again, the court said: ‘ These men (the framers of the Constitution of South Dakota) must have known that Section 1, Article 2, of the Federal Constitution declaimed that the President should receive for his services a compensation “which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States or any of them. ’ ’ These men must have known that the word “emolument” was, as recognized by every authority, a term broad and comprehensive, one which includes within it “perquisites,” “salary,” “compensation,” “pay,” “wages,” and “fees.” These men must have known that, with the above provisions of the Federal Constitution in force, the Congress of the United States, a body of men which at all times during the histoiy of this Government has had among its members many of the greatest constitutional lawyers of the day, had enacted legislation under which the President, for nearly a century prior to the framing of our Constitution, had been furnished a home, horses, carriages, servants, household equipment, and many other things incidental to and appropriate to his high office. These men must have” known that such Federal legislation had never been questioned either as regards its propriety or its constitutionality. These men must have known that in practically every State of the Union (in many of which there were constitutional provisions similar to the one above referred to in the Federal Constitution and to the ones relied upon by defendant in this case) there had been legislative enactments making provisions for the several .governors similar to those made by the Federal Congress for the President, as well as innumerable measures appropriating money to be paid other officers to recompense them for expenses incurred in the discharge of their official duties. Is it possible for any one to presume that these men, with all these facts in mind, intended, by the words used in our Constitution, to prohibit allowances for expenses incident to the discharge of public duties 1 Further light has since been thrown upon the construction given to the provision of the Federal Constitution above referred to by the Act of June 23, 1906 (34 Stat. at L. 454, c. 3523; Comp. State. 1913, sec. 225), which provides: £ £ That hereafter there may be expended for or on account of the traveling expenses of the President of the United States such sums as Congress may from time to time appropriate, not exceeding $25,000 per annum, such sum when appropriated to be expended in the discretion of the President and accounted for on his certificate solely.” Under appropriations thereafter made by Congress, Presidents Roosevelt and Taft received, and today President Wilson is receiving, thousands of dollars each' year. So far as we know, it has never been suggested that the money so allowed was an “emolument,” and therefore unconstitutional. No one has ever seen fit to accuse these Presidents of being grafters. The judges of the Federal courts, whose salaries are fixed by a law, declaring that such salaries shall be the “ compensation for their official services,” draw from the United States Treasury a sum not exceeding $10 per day when absent from the places of their residence. [Act March 3, 1911, c. 231, see. 259; 36 Stat; at L. 1161; Comp. Stat, 1913, sec. 1236.] This allowance is not given as an increase of salary but to cover the expenses incident to their being away from home in the discharge of their duties.’ ”

Of this opinion Judge Clayton says it “was well considered, instructive and illuminating.” On error to the district court, the Circuit Court of Appeals for the Fifth Circuit contented itself with saying: “The elaborate opinion of Judge Clayton covers the entire case and fully justifies the judgment rendered. We find none of the assignments of error well taken.” On error to the Supreme Court (Smith v. Jackson, 246 U. S. 388), in an opinion prepared by Mr. Chief Justice Whit®, the judgment of the Circuit Court of Appeals was affirmed. The court referred to the opinion of Judge Clayton as “elaborate and careful, . , . making perfectly manifest the error of the Auditor and his wrong in refusing to observe the ruling of the Attorney-General in the premises,” and characterized the action of the Auditor in prosecuting the writ of error as “a plain abuse . . . of his administrative discretion.”

In Kirkwood v. Soto, 87 Cal. 394, a question similar to that in the McCoy case was decided in. the same way. In State v. Sheldon, 78 Neb. 552, it was held that a statute providing a residence for the Governor was not obnoxious to a constitutional provision which fixed his salary at a definite sum and prohibited him from “receiving . . . any perquisite of office or other compensation. ’ ’

In addition, the Legislatures of 1895 and 1905 provided funds for paying the expenses of judges then in office, and the Auditor paid them under the acts of 1895 and 1905. This was violative of the Constitution if appellant is correct in his present contention. Contemporaneous practical donstruction is frequently relied upon by the courts in the solution of questions of this kind. [State v. Sheldon, supra; Cook County v. Healy, 222 Ill. 310; State ex rel. v. Billheimer, 178 Ind. 83.]

Prom these authorities, the reasoning quoted, and the principle last mentioned, it follows that the provision for the payment of expenses of circuit judges did not provide additional “compensation” in the constitutional sense or in the sense of Section 10695, Revised Statutes 1909, and the trial court was right in holding that appellant could not lawfully retain, in addition to an amount equaling the circuit judge’s salary, an additional sum equal to the amount allowed the circuit judge for expenses.

The allowance, is made to the circuit judges expressly for expenses which the circuit judge must incur in the performance of duties for which there is no counterpart imposed upon probate judges. The judgment is affirmed.

Walker, G. J., Williams, Woodson, Goode and Williamson, JJ,, concur.


text:
    THE STATE ex rel. WABASH RAILWAY COMPANY, Appellant, v. R. D. WILLIAMS et al., as Members of STATE TAX COMMISSION.
    In Banc,
    October 1, 1920.
    1. TAXATION: Franchise Tax: Interstate and Intrastate Commerce. Property in Missouri belonging to a corporation, whether foreign or domestic, engaged in interstate and intrastate commerce, may be taxed, and the tax may be imposed on the corporation on account of its property within the State, and may take the form of a tax for the privilege of exercising its franchises within the . State, if the ascertainment of the amount of the tax is made dependent upon the value of its property situate within the State.
    2, -: -: On Property Within State: In Proportion to Interstate and intrastate Business. Under the Franchise Tax Act of 1917 (Laws 1917, p. 237), declaring that “every corporation, not organized under the laws of this State, shall pay an annual franchise tax to the State of Missouri equal to three-fortieths of one per cent of the par value of its capital stock and surplus employed in business in this State, and for the purposes of this act such corporation shall be deemed to have employed in this State that proportion of its entire capital stock and surplus that its property and assets in this State bears to all its property and assets wherever located,” the right formula is to simply find what percentage of the foreign corporation’s entire assets is located in this State, even though its assets located in this State are used in both interstate and intrastate commerce; and to use the full value of its Missouri assets in ascertaining the amount of tax it should pay, is not a laying of a tax on interstate com- ■ merce in violation of Section 8 of Article II of the Constitution of the United States, although said Missouri assets arc used both in interstate and intrastate business.

      Appeal from Cole Circuit Court. — Hon. J. G. Slate, Judge.
    Affirmed.

      N. S. Brown and L. H. Strasser for appellant.
    (1) The franchise of a foreign corporation to carry-on its interstate business in this State cannot be taxed by the State, either directly or indirectly. Western Union Co. v. Kansas, 216 U. S. 1; Galveston Eailroad v. Texas, 210 U. S. 217. (2) It is conceded that as to a foreign corporation doing business in this State, the State has the right to levy a franchise tax upon that proportion of its capital stock which is used in conducting its intrastate business in the State. St. Louis Eailroad v. Arkansas, 235 U. S. 350; Kansas City Eailroad v. Botkins, 240 U. S. 227. But the act of the State Tax Commission in determining that the amount of appellant’s taxes should be computed upon that proportion of appellant’s outstanding capital stock which the value of all its property in this State bears to the value of all its property wherever located, is erroneous and void, because is is admitted that all of appellant’s property in this State is used by it in carring on both interstate and intrastate commerce. Western Union Co. v. Kansas, supra; Lusk v. Kansas, 240- U. S. 236,.

      Frank W. McAllister, Attorney-General, and John T. Gose, Assistant Attorney-General, for respondent.
    (1) It is now firmly settled, upon principle and authority, that the State, in its imposition of a tax upon property within its jurisdiction, is entitled to tax such property at its value as part of a going concern, and no deducted from such value is required because such property is also used in interstate commerce. St. Louis v. Arkansas, 235 U. S. 350, 367; Adams Express Co. v. Ohio, 165 U. S. 194; Adams Express Co. v. Kentucky, 166 U. S. 171; Fargo v. Hart, 193 U. S. 490, 499; Wisconsin v. Powers, 191 U. S. 379; Pullman Palace Car Co. v. Pennsylvania, 141 U. S. 18; Galveston v. Texas, 210 U. S. 225, 227. (2) By so much the more, then, is the State at liberty to select as a measure of a franchise tax for the privilege of doing intrastate business, the property within its jurisdiction, even though such property be used in part in interstate commerce. St. Louis v. Arkansas, 235 U. S. 364, 367; Atlantic v. Philadelphia, 190 U. S,. 160; Maine v. Grand Trunk, 142 U. S. 217; Baltic v. Massachusetts, 231 U. S. 68, 83; Provident Inst. v. Massachusetts, 6 Wall. 611; Flint v. Stone Tracy Co., 220 U. S. 162, 165; Western Union v. Attorney-General, 125 U. S. 530, 141 U. S. 40; State ex inf. v. Merchants Exchange, 269 Mo. 365; Postal Tel. Co. v. Adams, 165 U. S. 688; Plome Ins. Clo. v. NewTork, 134 U. S. 594.
   WILLIAMS, J.

This is a mandamus proceeding instituted in the Circuit Court of Cole County, whereby relator seeks to compel the members of the State Tax Commission to assess relator’s franchise tax in accordance with the principles of a certain formula hereinafter more fully explained. The.trial court sustained a demurrer to the petition and, relator refusing to plead further, the court entered judgment- in favor of respondents. Thereupon relator duly appealed to this court. The Franchise Tax Act of 1917 (Laws 1917, p. 237) provides in part as follows:

“Every corporation, not organized under the laws of this State, and engaged in business in this State, shall pay an annual franchise tax to-the State of Missouri equal to three-fortieths of one per. cent of the par value of its capital stock and surplus employed in business in this State, and for the purposes of this act such corporation shall be deemed to have employed in this State that portion of its entire capital stock and surplus that its property and assets in this State hears to all its property and assets whereever located.”

The petition is quite lengthy. We do not deem that it is necessary to copy the same in full here.

The following quoted portions of the petition, together with comments on certain portions hot quoted, will, we think, disclose the pleadings sufficiently for an understanding of the case.

It is .alleged: “That relator owns and operates within this State more than six hundred miles of railroad, consisting of mainline tracks, sidings, turnouts, depots, station grounds, terminals and terminal facilities; that said properties of relator are assessed for taxation under the general laws of this State. That upon said line of railroad relator conducts its business as a. common carrier by railroad in the transportation of property and passengers in both interstate and intrastate commerce; that all of said properties in this State are used in intrastate commerce, and also used in interstate commerce, and no part thereof is exclusively used in either intrastate or interstate commerce.”

The petition alleges that relator duly made its report to the respondents showing that the market value of all its- property and assets in this State was $14,039,641; that the market valué of its property and assets without the State was $81,186,709; that the par value of its total paid up capital stock was $139,492,536. 97; that of its entire business transacted in the State of Missouri for the year ending December 31, 1917, 73.34 per cent was interstate business and 26.66 per cént was intrastate business.

The petition further alleges:

“That in determining- the amount of the franchise tax required to be paid by relator under the said Franchise Tax Act, it was the duty of said Tax Commission to determine and take into account, in the manner provided by said act, only that proportion of the clear market valué of all its property and assets in this State which was used in the conduct of the intrastate business of relator in this State during the calendar year ending December 31, 1917.
“That the amount of the franchise tax required to be paid by relator when measured by the provisions of said act as applied to that proportion of the clear market value of all the property and assets of relator in this State which was used in the conduct of its intrastate business in this State during the calendar year ending December 31, 1917, was and is $4,082.07, which said sum is found by apportioning the clear maiTet value of all the property and assets of relator in this State on the percentage relation which its intrastate business in this State bears to all of its business herein. . . .
“And relator avers, on information and belief, that the said predecessors of respondents in determining the amount of tax which relator is required to pay under the provisions of said act, took the; clear market value of all the property and assets of relator within this State to be the sum of $14,039,641, and the clear market value of the property and assets of relator without this State to be $81,186,709, and ascertained that the clear market value of all the property and assets of relator within this State was 14.743 per cent, of the clear market value sof all the property and assets of relator without the State, and applied this percentage to the par value of the outstanding capital stock of relator, $138,492,536.97, thereby ascertaining that the proportion of the entire capital stock and surplus employed by relator in the conduct of all its business in this State was $20,417,954. 72, to which last-named sum was applied the rate of taxation, to-wit, three-fortieths of one per cent, which gives the sum of $15,313.50, or the amount which the said predecessors of respondents wrongfully reported to the State Auditor as the amount of the tax that relator is liable to pay under the provisions of said Franchise Tax Act. . . .
“That the construction so given to the provisions of said Franchise Tax Act by the said predecessors of respondents as applied to the facts in relation to the business and the value of the property and assets of relator in this State, renders the provisions of said act unconstitutional and void, because
“(a) It attempts thereby to assess a tax upon the franchise of relator to do an interstate business in this State in violation of the provisions of Section 8 of Article I of the Constitution of the United States.
. “(b) It thereby deprives relator of its property without due process of law, and denies the relator the equal protection of the laws, in violation of Article XIV of he Amendmens to the Constitution of the United States. ’ ’

The petition alleges that relator is without other adequate remedy and prays that respondents be directed “to correctly determine the proportion of the capital stock and surplus of relator employed in the business in this State, by ascertaining (1) the value of the property and assets of relator devoted to its intrastate business in this State, and (2) that proportion of relator’s entire capital stock and surplus that its property and assets devoted to its intrastate business in this State bears to the value of all its property and assets wherever located; and from the facts so ascertained to determine the amount of the tax relator is liable to pay under the provisions of said Franchise Tax Act, and make a corrected or amended report of the same to the State Auditor, all in accordance with the true meaning of the provisions of said act,-or to show cause at some early date to be named by this court, why they have not done so.”

It stands admitted in this case that the relator corporation owns- property and assets in the State of Missouri of the market, value of $14,039,641; that all ‘of said property is used for both intrastate and interstate commerce, and that none of it is used exclusively for either.

The Franchise Tax Act of 1917, supra, provides that foreign corporations doing business in this State shall pay an annual francliise tax to the State equal to three-fortieths of one per cent of the par value of its capital stock and surplus employed in business in this State and “for the purpose of this act such corporation shall be deemed to have employed in this State that proportion of its entire capital stock and surplus that its property and assets in this State 'bears to all its property and assets wherever located.”

The respondents in determining the amount of relator’s franchise tax for the year 1918 applied the above formula by first finding what percentage of relator’s entire assets was located in this State.

Relator contends that, since its Missouri assets are used in interstate as well as intrastate business, to use the full value of its Missouri, assets in the above formula would in effect violate Article II, Section 8, of the Federal Constitution, in that it would amount to the levying of a tax on interstate commerce and would also violate the Fourteenth Amendment of the Federal Constitution.

After a careful consideration of relator’s contention we are of the opinion that it is not sound and should not be permitted to prevail. We agree with the learned Attorney-General in his assertion that the principle here involved has been squarely ruled against the contention of relator by the Supreme Court of the United States in the case of St. Louis Southwestern Railway Company v. Arkansas, 235 U. S. 350, in passing upon the validity of the Arkansas Franchise Tax Law.

In that case Mr. Justice Pitney, speaking for the court, said at page 363:

“The tax, as will be observed, is not in any wise based upon the receipts of the railroad company from interstate commerce, either taken alone or in connection with the receipts from its intrastate business. Since, therefore, the amount of the imposition is not made to fluctuate with the volume or the value of the business done, we are relieved from those difficulties that arise where state taxes are based upon the earnings of interstate carriers, as in Maine v. Grand Trunk Ry., 142 U. S. 217; Wisconsin & Michigan Ry. v. Powers, 191 U. S. 379; Galveston, Harrisburg & San Antonio Ry. v. Texas, 210 U. S. 217; Oklahoma v. Wells, Fargo & Co., 223 U. S. 298; and U. S. Express Co. v. Minnesota, 223 U. S. 335.
“And we have no hesitation in overruling the contention that the tax is repugnant to the. ‘due process' clause on the ground of being in effect based on property located beyond the limits of the State, as in Western Union Tel. Co. v. Kansas, 216 U. S. 1, 30; and in Ludwig v. West. Un. Tel. Co., 216 U. S. 146, 162; for this tax is measured by reference to property situate wholly within the confines of the State.'
“So far as the commerce clause is concerned, it seems to us that the principles upon whose application the present decision must depend are those set forth in Postal Tel. Cable Co. v. Adams, 155 U. S. 688, 695, where the court, by Mr. Chief Justicé Fuller, said: lit is settled that where by way of duties laid on the transportation of the subjects of interstate commerce, or on the receipts derived therefrom, or on the occupation or business of carrying it on, a tax is levied by a State on interstate commerce, such taxation amounts to a regulation of such commerce and cannot be sustained. But property in a State belonging to a corporation, whether foreign or domestic, engaged in foreign or interstate commerce, may be taxed, or a tax may be imposed on the corporation on account of its property within a State, and may take the form of a tax for the privilege of exercising its franchises within the State, if the ascertainment of the amount is made dependent in fact on the value of its property situated within the State (the exaction, therefore, not being susceptible of exceeding the- sum which might be leviable directly thereon), and if payment be not made a condition precedent to the right to carry on the business, but its enforcement left to the ordinary means devised for the collection of taxes. ’
“So in Atlantic Tel. Co. v. Philadelphia, 190 U. S. 160, the court, reviewing numerous previous cases, laid down certain propositions as well-established, and among them.the following: (a) No State can compel a party, individual or corporation, to pay for the privilege of engaging in interstate commerce; (b) This immunity does not prevent a State from imposing ordinary property taxes upon property having a situs within its territory, although it be employed in interstate commerce; and (c) The franchise of a corporation, although that franchise is the business of interstate commerce, is, as a part of its property, subject to state taxation, provided at least the franchise is not derived from the United States.
“Applying these principles, we have no difficulty in sustaining the tax in question as a legitimate imposition upon a foreign corporation with respect to its exercise of the privilege of transacting intrastate business in corporate form, the tax being based upon the amount and >value of its property within the State. It is fixed at a definite percentage (one-twentieth of one per cent) of ‘the proportion of the outstanding capital stock of the corporation represented by property owned and used in business transacted in this State/ and the act provides machinery for ascertaining the market, value of the entire capital stock and striking a proportion between the value of the property owned and used by the corporation in the State and that owned and used by it outside of the State. In its essence the tax is not distinguishable from that which was sustained by this court in Western Union Tel. Co. v. Massachusetts, 125 U. S. 530, and in another case between the same parties, 141 U. S. 40.”

Relator places its chief reliance upon the case of Western Union Telegraph Company v. Kansas, 216 U. S. 1. We are of the opinion that the rule announced in the above case is not applicable to the facts of this case. In the Western Union ease the law was held invalid because it undertook to levy a tax on property beyond the borders of the state levying the tax. We do'not have a similar situation involved here.

For the reasons stated in the case of St. Lonis Southwestern Railway Company y. Arkansas, supra, the judgment of the trial court is affirmed.

Walker, C. J., Blair, Graves, Goode and Williamson, JJ., concur; Woodson, J., absent.