text:
    THE STATE ex rel. J. L. SPILLERS, County Collector, Appellant, v. THOMAS A. JOHNSTON.
    Division One,
    November 25, 1908.
    1. TAXATION: Military School: Exemption. One acre of ground, within an incorporated city, on which is a private military hoarding school, in which the proprietor resides with his family, having no occupation hut running the school and in which his wife and children participate, is exempt from taxation under the Constitution and statute.
    2. -: Exemptions: Not Favored. Tax exemptions are in derogation of equal rights, and are not to he favored hy the courts, but are to be strictly construed, and confined to the subjects specified, including such as are necessarily within the contemplation of the legislation creating the exemption. But strict construction must nevertheless be a reasonable construction.
    3. -: -: Exclusive Educational Use: Incidental Use. Where the Constitution and statute exempt from taxation real estate “used exclusively for schools,” the words “exclusively used” have reference to the primary and inherent use as over • against a mere secondary and incidental use, such as the residing in the school building by the proprietor and his family, * who for the most part assist him in 'conducting the school. If such incidental use does not interrupt the exclusive occupation of the building for school purposes, but dovetails into or rounds out that use, then the use may be said to be an exclusive school use, and the property is exempt from taxation.
    4. -: -: -: -: Military Pay School. A military pay school, where cadets are received and boarded, as are the officers and teachers, under a family arrangement, is exempt from taxation. To hold that its proprietor, charged with the primary duty of ideally developing the mind, manners and morals of his pupils, may reside in the school house, if he is unmarried and thus have the benefit of exemption from taxation on the property, but that he must lose the exemption if married and resides there with his wife and children, though they in a manner are merged in the school family, is to make the law absurd and harsh.
    Appeal from Cooper Circuit Court. — Now. Samuel Davis, Special Judge.
    Affirmed.

      W. G. & G. T. Pendleton for appellant.
    The trial court erred in declaring as a matter of law that under the evidence relator was not entitled to recover, and in rendering its finding for defendant. The Constitution (art. 10, sec. 6), and the Revised Statutes of 1899 (sec. 9119), exempt from taxation lots in incorporated cities to the extent of one acre only from taxation when used exclusively for schools. “Where a building is xxsed in part for a school house, and in part for other purposes, it is not exempt from taxation. ” Wyman v. St. Louis, 17 Mo. 335; St. Mary’s College v. Crowl, 10 Kan. 442.

      John & J. W-. Cosgrove for respondent.
    (1) The acre of land, with the building thereon, is exempt from the assessment sought to be enforced notwithstanding the fact that respondent’s family, the professors, instructors and servants resided in the building situated on said acre. Blackman v. Houston, Tax Collector, 2 So. (La.) 193; Carter v. Patterson, 39 S. W. (Tex. Civ. App.) 1110; Ramsey County v. Macalester College, 53 N. W, (Minn.) 704; New Orleans v. Arthurs, 36 La. Ann. 98. (2) The word “exclusively” does not so qualify the use to which the property may be put as to take away its exemption because respondent permits his family and most of the teachers and officers to reside in and eat and lodge in the building. As the record shows that a portion of the house is occupied as a residence by plaintiff and his family, appellants argue that the property is not exempt from taxation, because it is thus shown that the same is not used exclusively for school purposes. The fallacy of the argument results from a too narrow construction of the article of the Constitution which exempts from taxation “all buildings and property used exclusively for colleges, or other school purposes.”
   LAMM, J.

By its. suit in the Cooper Circuit Court (the Hon. Samxxel Davis sitting as special judge), the State sought to recover taxes for the years 1900-1-3 on block 3, Houck’s Addition to Boonville, excepting eighty-four feet off of the south side, aggregating all told in principal, penalties, interest and costs, $375.39.

The evidence being in, the court gave a peremptory instruction for defendant. From a judgment following, the State appeals.

No question is made on the petition. It is in conventional form.

Defendant answered confessing owning the land, but denied owing the taxes. For affirmative defense, he alleges that the land taxed consisted of one acre, was within the corporate limits of the city of Boonville, that it and the building thereon were used exclusively for school purposes by him during the years in suit, and, being so used, said acre was exempt from taxation under the Constitution and laws of the State of Missouri.

The reply put in issue the plea of exemption.

The case made on the facts is this:

Plaintiff put in a back taxbill, covering the years and parcel of ground, duly certified by Spillers, collector of the revenue for Cooper county, and rested.

Thereupon, to sustain his plea of exemption, defendant put in uncontradicted proof to the effect following: He is the proprietor of Kemper Military School in Boonville. Block 3 in Houck’s Addition is more than an acre and he owned it all. Deducting eighty-four feet off of the south side, leaves the remainder one acre. He tendered and paid all taxes levied against the south eightv-four feet, upon which were located a barn and certain outbuildings of the school, and got acquittance therefor. The building known as Kemper Military School (a landmark in the history of Missouri) is on said acre. It was built years ago expressly for use as a private military boarding-school for boys, and such school has been kept there right along for many years by defendant since the death of its worthy founder. It accommodates 110 cadets, 10' officers, about 15 servants and defendant’s family, made up of his wife, two daughters and two sons. Some of these children were minors, but attained their majority in the period covered. The school term is a little over nine months per year. During the term the family, officers, and cadets resided in -the school building except at intervals one or another of the children was away at school, and one for a little while clerked for a merchant. During vacations the officers do not reside in the building, but defendant and his family do and are engaged in getting ready for the next school term by advertising, correspondence, repairs, alterations, cleaning the building and otherwise. Mrs. Johnston has charge of what is known as the “home department,” i. e., the boarding of the cadets, teachers and servants, attending to the health of the- cadets, such duties as a good mother (an alma mater in name and fact) would perform for a family of boys. In the school building are eight or nine recitation rooms, a study hall, laboratory and fifteen or twenty rooms devoted to such general purposes as are necessary to the successful conduct of the school. While certain apartments of the building are set apart for the family, yet pupils and teachers have access to them and these apartments at times are used in connection with the school, e. g., social attractions and giving the boys recreation. One of the defendant's said sons was an officer in the school and did school work. One of said daughters was the general assistant to her mother in the home department. Another son and daughter were minors and when they were not elsewhere at school or in the employ of outside parties in outside pursuits, they were merely members of defendant’s family, except that, as said, during vacation all the family performed duties connected with the school in renovating, refurnishing, house-cleaning, etc., and presumably, in correspondence, advertising, etc.

Resting on the foregoing facts, learned counsel insist on one side and deny on the other that the locus to the extent of one acre is exempt from taxation under the following constitutional and statutory provisions:

(1) Section 6-, article 10, of the Constitution: “. . Lots in incorporated cities or towns, or within one mile of the limits of any such city or town, to the extent of one acre, and lots one mile or more distant from such cities or towns, to the extent of five acres, with the buildings thereon, may be exempted from taxation, when the same are used exclusively for religious worship, for schools, or for purposes purely charitable.”

(2) Section 9119, Revised Statutes 1899: “The following subjects are exempt from taxation: . . . .; Sixth, lots in incorporated cities or towns, or within one mile of the limits of any such city or town, to the extent of one acre, and lots one mile or more distant from such cities or towns, to the extent of five acres, with the buildings thereon, when the same are used exclusively for religious worship, for schools or for purposes purely charitable, shall be exempted from taxation, for State, county or local purposes.”

It is not contended by counsel for the State, as we see it, that the exemption does not cover private schools as distinguished from public schools, nor pay schools as distinguished from free schools, nor boarding schools as distinguished from schools having no home department, nor military schools as distinguished from those having no military features. The contention of the State hinges on the phrase, “used exclusively,” found in the tax-exempting clause of the Constitution and statute; and the point for decision is narrowed down to a simple question, which may be stated bluntly and singly to be: If the proprietor of a private military boarding school in Missouri reside in the school building with his family, having no avocation but running the school and in which avocation the family participate, does such residence destroy the exemption?

It is our opinion that viewed from the philosophy of the thing and measured by cardinal standards of legal interpretation, the right answer to that question is, No. This because:

(a) It must be conceded to the State that, whether a tax-exempting clause be viewed from the standpoint of the State down to the people or from the standpoint of the people up> to the State, there be unbending and inviolate rules which as sure words of the: law are always to be reckoned with; and those rules (from the standpoint of the State) are that an abandonment of the sovereign right to exercise the vital power of taxation can never be presumed. The intention to abandon must appear in the most clear and unequivocal terms (Railroad v. Cass County, 53 Mo. l. c. 27); and from the standpoint of the people they are that equality is equity in taxation. That the yoke of taxation — a forced contribution for governmental needs — should rest evenly on the necks of all citizens. That to relieve one but increases the burden of the other. That tax exemptions are in derogation of equal right — are contrary to common right — hence, are not to be favored by the courts, but should be construed strictly and confined to the subjects specified including such as are necessarily within the contemplation of the legislation under review. [Kansas City Exposition Driving Park Co. v. Kansas City, 174 Mo. 425; Fitterer v. Crawford, 157 Mo. l. c. 58, et seq.; City of Kansas v. Kansas City Medical College, 111 Mo. l. c. 146.]

Says Scott, J., in Wyman v. St. Louis, 17 Mo. 335: “Equality is equity, and when one claims exemption from a burden to which all others are subject, and whose freedom will increase their load, he must clearly show himself in the situation which entitles him to the exemption claimed.”

And Cooley states the sum of the matter to> be [1 Cooley on Taxation (3 Ed.), 357-8]: “It is also a very just rule that, when an exemption is found to exist, it shall not be enlarged by construction. On the contrary it ought to receive a strict construction; for the reasonable presumption is that the State has granted in express terms all it intended to* .grant at all, and that unless the privilege is limited to the very terms of the statute the favor would be extended beyond what was meant.”

Nevertheless, conceding to the State the foregoing-general propositions, yet strict construction must still be a reasonable construction, the product of right and clear thinking, or else reason is no longer the life of the law; and it has been well said by a scholar in jurisprudence that: “The utmost extremity of the law is injustice” (i. e.), “Straining the cords of the law in some eases to their greatest length will produce as much oppression as if there was no law at all” (Apices juris non sunt jus).

(b) The phrase “exclusively used” has reference to the primary and inherent use as over against a mere secondary and incidental use. [People ex rel. v. Lawler, 77 N. Y. Supp. l. c. 842, et seq.] If the incidental use (in this instance residing in the building) does not interrupt the exclusive occupation of the building for school purposes, but dovetails into or rounds out those purposes, then there could fairly be said to be left an exclusive use in the school on which the law lays hold. [First Unitarian Society v. Hartford, 66 Conn. l. c. 375.]

To illustrate: In the. State of New York the following law was on the statute book:

“The real property of a corporation or association organized exclusively for the moral or mental improvement of men or women, or for religious, bible, tract, charitable, benevolent, missionary ... or for two or more such purposes, and used exclusively for carrying out thereupon one or more of such purposes . . . shall be exempt from taxation.”

In a case (People ex rel. Church of St. Mary, the Virgin, v. Feitner et al., Comrs. of Taxes, 168 N. Y. 494), the facts held in judgment were that certain real property consisting of a large church building devoted to religious services was concededly exempt, but there was a mission house1, a clergy house and a rectory adjacent and the i ax controversy arose over them. Referring to the mission house and the clergy house, that court said:

“The first controversy arises with reference to the mission house adjoining the southeast corner of the church. Upon the first floor of this house is a chapel, where there is an altar used daily for religious services. This building is in charge of three sisters, who have a general reception room upon the first floor, where all persons desiring to consult them are received. The second floor is also occupied by a chapel and the third floor by the women’s guild, the rooms being used regularly three times each week, one for the mothers’ meeting, one for the guild girls and one for younger girls and children. The fourth floor is used as the living rooms of the sisters, and the fifth is their kitchen. It appears that the work of the sisters is mainly carried on by the guilds organized for the purpose of doing charitable and missionary work in connection with the church among the poor, and the furnishing of the destitute with food and clothing, looking after them when they are sick, and inducing them to1 attend the meetings of the guilds, with the ultimate object of making them members of the church. The daily use of the chapel for religious services, the constant reception of women and children for counsel and advice, the distribution of charity, with the meeting of the guilds day and night, would seem to make the residence of the sisters in the building necessary and an incident to the work carried on there, and not an appropriation of the building for other purposes than that for which the relator was incorporated. We are, therefore, inclined to the view that this building is exempt.
"The clergy house adjoins the southwest corner of the church building. The first floor consists of a large room known as the St. Joseph’s Hall, used for a Sunday school and other religious services. It is connected with the church and can be utilized as a part of, the seating capacity of the church when it is ov&rerowded. In this building is also located the choir and vestry. The choir boys assemble here before services and put on their vestments. The chapel of the church proper extends to and occupies the second floor for a gallery. The third floor is used for the men’s guild, and consists of a reading room, club room, a billiard room and library. This building is under the care of three curates, who conduct devotional exercises in the chapels and at the guilds. They counsel and advise applicants, and assist in carrying on the work of the church. The fourth floor is occupied by them for sleeping and living rooms, and the fifth floor is occupied by the engineer, who has charge of the heating and the mechanical apparatus of the entire buildings. We incline to the view that the occupation of this building by the curates and engineer is incidental to the work carried on by the corporation, and that it is also exempt.”

To the same effect and more nearly in point on the facts is Blackman v. Houston, Tax Collector, 39 La. Ann. 592. In that case Poche, J., said: "It stands to reason that a college,, with some two or three hundred scholars, who would also be boarders, would not lose its character as being- used exclusively for school purposes, because, forsooth, it would contain rooms for the accommodation of necessary teachers, as well as for the servants required for the preparation of the food of teachers, as well as of scholars, and for the performance of other household duties. It is too plain in our minds for argument that all these incidents are necessary adjuncts to property used exclusively for college purposes. It would certainly he imprudent, if not dangerous, to leave unoccupied at night, or when classes are not being actually taught, a building used for school purposes in a large city; and the argument which would hold that the occupation of such building by a janitor and his family would destroy or even impair its character as being used exclusively for school purposes, would doubtless find no sanction under the true meaning of the article of the Constitution, or even in reason and common sense. Is it entitled to more consideration or to greater weight when applied to the owner of the building, who is the principal and one of the teachers of the school kept therein? This court has held that the right of exemption from taxation [as the manufacturer] of a ‘textile fabric’ was not affected or impaired by the fact that the owner occupied the same building with his family as a residence. [City of New Orleans v. Arthurs, 36 La. Ann. 98.]

In Carter v. Patterson, 39 S. W. (Tex.) 1110, it was said (quoting the syllabus): “A building used as a boarding school is not deprived of its exemption from taxation as a building used exclusively for school purposes by the fact that the owner and his wife, who were both teachers in the school, resided in the building, and that he permitted the use thereof on several occasions for entertainments, charging no more than the expense of the lights and the arrangement of the furniture.” [See, also, North St. Louis Gymnastic Society v. Hudson, 12 Mo. App. 342; State ex rel. v. Powers, 10 Mo. App. 263. And (arguendo) Bishop’s Residence Co. v. Hudson, 91 Mo. 671.]

The foregoing cases illustrate that, in getting at the meaning of the constitutional and statutory exemption, courts while applying the rules of strict construction yet take the road the guide-post of common sense points.

(c) If the Constitution or statute had excluded from tax exemption pay private schools or military boarding schools, another ease would be here, But as the language of the exemption undeniably includes boarding schools, we must take such schools as we find them and as the Constitution-makers in 1875 found them and as the Legislature enacting the law carrying out the constitutional power of exemption found them. In this view, to keep a private boarding school means to have a family arrangement for pupils and head-masters. A family arrangement means, practically, a family association under a common roof, by a common fireside, in a common lodging and at a common table — all mere incidents to such school use, To hold that the proprietor of such school, charged with the primary duty of ideally developing the mind, manners and morals of his pupils, may reside in the school house if he is unmarried and thus have the benefit of the exemption, and may lose it if he is married and reside there, or to hold that if married his wife and children must be banished though his family be in a manner merged in the school family, is to make the law absurd and harsh. Such construction is to be avoided. [Keeney v. McVoy, 206 Mo. 42.]

No man (who, sometime as a wholesome boy, poring over the pages of Tom Brown At Rugby, glowed with delight) need be told that a boys’ private school, alive with the uplifting influences of an ideal family arrangement, mater and pater familias included, is within the pale and reason of general provisions of law exempting school property from taxation.. To> such a man, the thing speaks, for itself; and to such a man, as a judge on the bench, it is p-ut beyond argument. No patriotic citizen who in sober reflection must realize that if a free self-governing people would escape the evils of an overpowering standing- army, it must rest its protection upon the sensible military ardor and training of its youth, need be told that a military pay school is within the reason and the pale of general provisions of law fostering schools.

(d) In interpreting- the phrase, “used exclusively,” commonly found in constitutional and statutory tax-exempting provisions, it has uniformly been held that if certain parts of the school building be rented for stores or other income purposes, not merely incidental to the school itself, it destroys the exemption. To that class of cases the two' relied on by appellant [Wyman v. St. Louis, 17 Mo. 335; St. Mary’s College v. Crowl, 10 Kan. 442] must be assigned. Many others of similar import might be cited [Fitterer v. Crawford, supra; Cincinnati College v. State, 19 Ohio 110; People ex rel. v. Y. M. C. A., 157 Ill. 403; United Brethren v. Commissioners, 115 N. C. 489]. But such cases are not this case.

Courts have been astute to see to it that the exemption be not enlarged by construction beyond necessary implications. Indeed, cases may be found that deny the exemption where the owmer of the school uses the school building as .a residence for himself and family. [Red v. Johnson, 53 Tex. 284.] In another Texas case (Edmonds v. San Antonio, 14 Tex. Civ. App. 155), the exemption was denied where a practicing* attorney owned a building, resided in it and his wife kept the school. But that case recognizes the justness of our holding here; for it was there said: “If appellant had been a teacher in the school, and had no other profession, the property might have been exempt from taxation; hut when there is appended to the teaching the practice of law, or to the practice of law the teaching of children is appended, the premises were not used exclusively for school purposes.” [See, in this connection, Red v. Morris, 72 Tex. 554, and Cassiano v. Ursuline Academy, 64 Tex. 673.]

The premises considered, we are of opinion the judgment should be affirmed. It is so< ordered.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    AMOS R. PHILLIPS, Appellant, v. ST. LOUIS UNION TRUST COMPANY et al.
    Division One,
    November 25, 1908.
    1. COUNTY LANDS: Evidence of Purchase: Register’s Certificate and Treasurer’s Receipt. A certificate of purchase of county lands, dated May 23, 1857, signed by the county register certifying that “August E. Shields purchased of the register of this office” certain lands described, at the price of $1,729.20, and that “on presentation of this certificate to the receiver of public moneys and upon full payment to him of the said sum of $1,729.20, the said August E. Shields shall be entitled to receive a patent for said land;” and a receipt by the county treasurer reciting, “Received of Shapley R. Phillips, $2,233.74 in payment of land bought of the county by Edward Coleman, Wm. D. Waldrop and August E. Shields, and in final payment for all land they bought at the May term of our county sales in 1857,” do not establish any equitable title in August E. Phillips, or in Shapley Phillips, August’s assignee, to the lands described in the certificate. The certificate does not show any money was paid, and the receipt in express terms acknowledges the receipt of the purchase money for undescribed lands sold by the county to three men as tenants in common. Such evidence does not show that the lands described in the certificates were ever paid for, and therefore does not establish the legal conclusion that the county held the legal title for the benefit of August E. Phillips’ heirs.
    2. -: Notice to Subsequent Purchasers. Even if the certificate of purchase and receipt of the payment of the purchase money for county lands sufficiently described the lands, yet if tlie evidence fails to disclose that the subsequent grantees from the county had any knowledge or notice of the purchaser’s claim of title to the lands, the court will not divest the subsequent grantees of the title.
    3. -: -: Conflicting Testimony: Equity Case: Deference to Trial Court. Even in equity cases, where the appellate court has the right to review and weigh the evidence, the usual practice is, where there is evidence tending to prove that subsequent purchasers from the county had notice of plaintiff’s prior attempt at purchase, and equally substantial evidence to the contrary, to defer largely to the finding of the trial court on that and other issues of fact, and refuse to disturb its judgment on the assignment that its findings were against the weight of the evidence.
    Appeal from New Madrid Circuit Court. — New. H. G. Riley, Judge.
    Appikmed.

      Brown & Éubhard for appellant.
    (1) The court said, iu the case of Wicker sham v. Woodheck, 57 Mo. 59, that the registrar’s and receiver’s receipt is evidence that the State has passed the title, although the formality of a patent is wanting. The equitable title is at least passed, for the purchase money is paid, and the State cannot transfer its title, which is a mere naked legal title, to another. Where one has the equitable title to land and another obtains the legal title with knowledge of such equitable title, the former has the superior equity and the latter will be held to hold such legal title in trust for him, and under the statute of this State may be divested of such legal title without a conveyance. Sensenderfer v. Kemp-, 83 Mo. 581; Bailey v: Winn, 101 Mo. 649; Grove v. Robert, 36 Mo. 523; Morton v. Blankenship, 5 Mo. 200: (2) Notwithstanding the fact that the assignment of the certificate of registry from Augustus E. Shields to Shapley R. Phillips was irregular, there is no fraud charged by defendant, and as said Phillips was the holder of said certificate when same was presented to Geo. W. Dawson, treasurer of New Madrid county, and furnished the full consideration for the purchase of said land, which was received by said Dawson as agent of said county, and a receipt issued to Phillips showing that the county had received said money, signed by the county’s agent; then said Shapley R. Phillips, or this plaintiff, claiming under him, could enforce in equity the trust which arises from those facts in the absence of anything shown to indicate a different intent of the parties. That the muniment of title held by defendant is a county patent for land does not prevent the application of that rule of equity and justice. ' All parties claiming this land are before the court, and there is no difficulty in giving the appropriate relief which the facts demand. Boyd v. Mammoth Springs Imp. & W. P. Co., 137 Mo. 482. The registry certificate and treasurer’s receipt are primafacie evidence of the payment of the purchase money by Shapley R. Phillips; defendant had the right, and it devolved upon him, to dispute the prima-facie case made by them. Massey v. Smith, 64 Mo. 347. (3) Upon the theory that, when the county issued the patent to defendant, defendant had notice .of plaintiff’s equitable title and interest in and to the lands, plaintiff introduced tax books showing that said land had been assessed to him, and the taxes paid by him as far back as the year 1883, and down to and including the year 1896. Also a copy of the partition proceedings in the circuit court of New Madrid county, in the year 1872, and which was a matter of public record, as well as evidence showing that he and those under whom he claimed have had open, notorious and exclusive possession of said lands since the year 1860, down to the present time, for such purposes as it is fit for. Actual notice, required by the statute, does not mean that there must necessarily be direct and positive evidence of such notice. Any proper evidence tending to show it — facts and circumstances coming to one’s knowledge, or of which he could have known by exercising ordinary care, that would put a man of ordinary circumspection on his inquiry, or facts that would naturally suggest it1 — is all that is required. Maupin v. Emmons, 47 Mo. 304; Morrison v. Judson, Í45 Mo. 298; Ins. Co. v. Smith, 117 Mo. 292; Hagan v. Ellis, 4 A. & E. Dec. E. 220. (4) Under the contract made by the county to defendant and those under whom it claims, the county undertook to convey only .such swamp lands as it had title to-, which was notice of itself sufficient to put defendant on inquiry. The actual notice required by the'Registry Act is not certain knowledge, but such information as men generally act upon in the transactions of life. Vaughn v. Tracy, 22 Mo. 415. (5) The deed from Himmelberger and wife to Himmelberger-Luce Land & Lumber Co., dated August 11, 1899, is a quitclaim deed. The Himmelberger-Luce Land & Lumber Co. and the Iiimmelberger-Harrison Lumber Co., this defendant, are virtually one and the same corporation, under a reorganization. When the said Himmelberger-Luce Land & Lumber Co. received said quitclaim deed it was sufficient notice to put it on inquiry, and that it was getting only a doubtful title, and is, therefore, not an innocent purchaser for value in good faith and without notice. Stule v. Bank, 7 L. R. A. 524.

      Oliver & Oliver for respondents.
    (1) The trial court did right in excluding the blank assignment of the so-called register’s receipt. Bank v. Donnell, 35 Mo-. 374; Bank v. Pennington, 42 Mo. App. 355; Huguwein & Co. v. Hinds, 97 Mo-. App. 352; Mayer v. Old, 51 Mo. App. 217. (2) The result would necessarily have been the same even though this blank, unsigned assignment had been admitted in-evidence. No patent was ever issued by the Governor or the county court to either Shields or Phillips. There is no evidence in this record that either Shields or Phillips paid one cent for this land. Section 16 of the Act of 1855 limits the quantity of swamp land that any one man can buy, either at public auction or private entry. For all this court knows Shields or Phillips may have exhausted their rights in buying this character of land from New Madrid county, and that “may have been” the reason that no patent was ever issued for it; no triplicate register’s receipt was ever given, nor was any register’s receipt ever filed in Jefferson City. Stephenson v. Stephenson, 71 Mo. 127; Kelly v. Yandiver, 75 Mo. App'. 438. (3) Respondents’ record title to this land is perfect. Appellant concedes this in his petition and has never denied it. Secs. 8197, 8198, 8199; R. S. 1899 ; State ex rel. v. County Court, Wayne County, 98 Mo. 362; Railroad v. Wayne County, 125 Mo. 357; Simpson v. Stoddard County, 173 Mo. 421. (4) Respondents deny appellant’s allegation that in making said patent to Himmelberger on the 25th day of May, 1899; said “county court and the county for whom it acted was misinformed, and through misinformation, oversight, accident, mistake, patented land in controversy to which said county had no right of disposal or sale, if perchance said facts were known to them.” Appellant has not offered a syllable of testimony to support this allegation in lfig bill. Not a scintilla of testimony can be found in this record tending to prove that the court was misinformed or that it acted upon misinformation. On the contrary, this record does show that the county court did act carefully and intelligently and appointed its then clerk to make an investigation and inform it of what lands the county owned and of what lands they could convey to defendant and its grantors in payment of the work performed. No member of the county court was offered as a witness in support of this allegation in plaintiff’s petition. Nor was there any other officer of New Madrid county or of any citizen of said county put upon the witness stand to prove the allegations. (5) If plaintiff ever had a cause of action, he is barred by laches and the Statute of Limitations. Shelby County v. Bragg, 135 Mo. 300; Funkhouser v. Lay, 78 Mo: 466; Hughes v. Littrell, 75 Mo. ,573; Loomis v. Railroad, 165 Mo. 394.
   WOODSON, J.

This was a bill in equity, filed in the circuit court of New Madrid county by the plaintiff against the defendants, which sought to have the legal title to two hundred and eighty acres of land located in that county divested from the defendants and invested in the plaintiff. There was a trial had before the court which resulted in a judgment in favor of the defendants. After an unsuccessful motion for a new trial, plaintiff appealed the cause to this court.

The bill was couched in the following language:

“Plaintiff states that codefendant, Himmelberger-Ilarrison Land Company, is a corporation organized under the laws of the State of Missouri. That the St. Louis Union Trust Company is a corporation organized under the laws of the State of Missouri. That heretofore, on May —, 1857, at the May Term of the —!— court of New Madrid county, Missouri, there was legally <sold the land hereinafter §et out and described, and that at said sale one Augustus E. Shields purchased the following described swamp1 lands belonging to the county of New Madrid, Missouri, to-wit: Forty acres of land, being the southeast quarter of the southwest quarter in section No: 26; also 160 acres, being the southeast quarter of section No. 26; also eighty acres, being the north half of the northeast quarter of section No. 35, township 23, range 13, being in all 280 acres, for the price and sum of $1,729.20'.
‘ ‘ That said lands being a part of the swamp lands granted to the State of Missouri by the United States by the Swamp Land Act of Congress, approved 27th September, 1850, and that on, to-wit, 23d day of May, 1857, after the purchase of said lands by said Shields, and under and by virtue of said purchase and the laws governing such sales, the register of swamp lands within, and for said county by John T. Scott issued and delivered to said Augustus E Shields a register certificate of purchase therefor, describing said lands then and reciting "the purchase price, sale and name of purchaser, which sale and certificate of purchase was duly recorded in the register office in the records provided for by law for that purpose, which record was a public record of said county.
“That after that, to-wit, said Augustus E. Shields sold his interest in said lands to one Shapley R. Phillips and assigned and transferred his register certificate of sale to him for a valuable consideration.
“That after that, to-wit, on the 14th day of August, 1860, Shapley R. Phillips paid to George W. Dawson, the treasurer of New Madrid county, Missouri, for said county, the sum of $2,233.70', being the full amount due for the balance due on the purchase price of the above-described lands and other lands entered by Edward Coleman and Wm. D. Waldrop; and said George W. Dawson as such treasurer on said date executed and delivered to said Shapley R. Phillips his treasurer’s receipt therefor, and thereby said Shapley R. Phillips became the equitable owner and had the equitable title to said lands, but the legal title remained in the county, who in equity held the same in trust for the use and benefit of said Phillips.
“That since said date, August 14, 1860, and till his death, said lands were taxed to Shapley Phillips and lie paid the taxes on same- cnt and sold timber from same; and cnt and used timber from same; and under his equitable title claimed the ownership thereof and made such use thereof as it wasi fit for.
“That said Phillips died and the property sued for with other property was set off and allotted to plaintiff in a suit in partition in the New Madrid Circuit Court in the year 1872; and has since then been held by plaintiff and taxed to plaintiff, and plaintiff has paid all taxes on same and used the same for wood and timber and for such purposes for which it was fit. And, so, he says, he and his grandfather, Shapley R. Phillips, under whom he claims, have held the equitable title claiming' the property in. this suit since August, 1860, using the same for such purposes for which it was fit; paying taxes on same, and that these rights and claims through all these years have been undisputed and notorious, and was known to the Himmelbergers and Luces and others who have since been grantees from the county and under them, and could have been known by ordinary inquiry;, investigation and observation.
“He states that he is informed that the register record of sale of lands and register record of certificate of sale of land were destroyed by fire during the period of the Civil War, between the years 1861 and 1865.
“He further states that about the first day of December, 1885, the county court of New Madrid county, Missouri, contracted with C. L. Luce (now dead) to dig a certain ditch or drain therein described and to be finished and completed in a limited and stated time in said contract specified, and upon its completion, according to plans and specifications, within the time named, to pay therefor a stipulated sum; but not to' be paid in money, but in certain swamp lands at an agreed price per acre.
“That Luce died shortly after the commencement of said work, and said contract determined; that later on, to-wit, 20th May, 1893, said contract, with certain modifications, extensions and provisions not embodied in the original, was renewed with the heirs of C. L. Luce, namely, Elmira Lnee, Ella G-ould, A. B. Luce, Carrie Brown, Lilia Harrison and Frederick Bundle, by which the county of New Madrid contracted to pay to said parties on the completion of said ditch, according to the plans, within the time limited, a stipulated sum, but not in money but in such lands as the county owned valued at $1.25 per acre. That the time for completing said contract was afterward extended; and that the said Luces, with the consent of said county, assigned said contract to John H. Himmelberger.
“That after that, on the 25th May, 1899, said New Madrid county court caused a patent to be executed and signed |>y the president thereof, and countersigned by the clerk thereof, and to be delivered to John H. Himmelberger to the lands above described, together with a large body of other lands, in payment for said diteb, which is recorded in the recorder’s office of New Madrid county, Missouri, in deed record, volume 37, page 421 and others.
“That on, towit, 11th day of August, 1899, John H. Himmelberger and wife (who had taken patent as trustee for himself and Luce heirs) executed and delivered a deed to all the lands described in said patent, including the lands in this suit, to Himmelberger-Luce Land & Lumber Company, a corporation, which is recorded in deed record, volume 37, page 449 and others.
“That on the 31st day of March, 1902, the Himmelberger-Luce Land & Lumber Company, a corporation, executed and delivered a deed for the lands patented, including the lands in this suit, to Himmelberger-Harrison Land Company, a corporation, which deed is recorded in. record of deeds, volume 41, page 517-518 and others.
“That on, to-wit, 2nd April, 1902, the Himmelberger-Harrison Land Company, a corporation, executed and delivered to St. Louis Trust Company, a corporation, a deed of trust for $350,000 to the lands patented, including the lands sued for, which deed of trust is recorded in deed records, volume 41, pages 499-500 and others.
“That on the 11th February, 1902, said St. Louis Trust Company consolidated with the Union Trust Company under the name of St. Louis Union Trust Company, which owns said notes and trust securities.
“Plaintiff further states that since the payment of the purchase price for said lands by Shapley R. Phillips to the treasurer on 14th day August, I8601, said Shapley R. Phillips became vested with the equitable title to said lands, and the legal title, held by the county in equity, was held in trust for him and his heirs and assigns. He further states that in making said patent to said Himmelherger on the 25th May, 1899, said court and the county for whom it acted was misinformed and through misinformation, oversight, accident, mistake, patented land in controversy, to which said county had no right of disposal or sale, and if perchance said fact were known to them, said act in patenting said land was a fraudulent diversion of trust property, which operates in either and both events and contingency as a fraud upon plaintiff’s rights.
“That plaintiff’s purchase and payment for said land was not only a matter of public record, but his claim and title were notorious through the ag*ency of the partition suit, through the tax records and the acts of user that were notorious, extending over a period of time from 1860 to the present time, which facts were known to the county court who ordered and made the patent and to J. H. Himmelherger, and to the Himmelberger-Luce Land & Lumber Company, and to the Himmelberger-Harrison Land Company, and to the St. Louis Union Trust Company, and could have been known by ordinary care, investigation or observation.
“That all of said titles are hurtful and damaging clouds on plaintiff’s right and estate and in fraud thereof. Wherefore, plaintiff prays that said titles so acquired under said several conveyances be deemed to be held in trust for him and that the legal title to said lands be divested out of said defendants and vested in this plaintiff by the decree of this court and for general equitable relief and for his costs.”

The answer in substance admits that:

John H. Himmelberger took from the county of New Madrid, as trustee, for his company, a patent to this and other lands, in payment for the work done and performed by his company, and its grantors, for the county of New Madrid, under its contract with the Luces; and avers and charges that neither Himmelberger nor any of the other parties under whom the defendants claim title had any notice or knowledge of the plaintiff’s claim to this land; that both Himmelberger and the county court and all the parties and persons connected with the making of said patent acted in good faith and without any knowledge or information whatever that the appellant had or asserted any claim to this land.

Respondent further answered that if it was true, as alleged by plaintiff (but defendant denied its truthfulness), that said land was contracted to be sold to Augustus E. Shields, and by him to Shapley R. Phillips, yet plaintiff and those under whom he claims were grossly negligent and careless of their rights by failing to procure a deed or patent from the county, and in failing and neglecting to place the same on record; and that it would be inequitable and unjust to permit the plaintiff to now take this land from defendants who liad paid for it in good faith, and that plaintiff was ■guilty of gross laches.

The plaintiff introduced in evidence a certificate of purchase of the land in controversy from the register’s office of New Madrid county to Augustus E. Shields, dated May 23rd, 1857, which reads as follows:

“No.--Register’s Office at New Madrid, May 23rd, 1857.
“It is hereby certified that in pursuance of law Augustus E. Shields of New Madrid county, Missouri, on the--- day purchased of the register of this office the southeast quarter of southwest quarter and southeast quarter of section No-. 26, and north half of northeast quarter of section No. 35, in township' No. 23, north,' range- No. 13 east, containing 280 acres and-hundredths of an acre, at $ — •— per acre-, amounting in the ag’gregate to seventeen hundred and twenty-nine dollars and twenty cents.
“Now, therefore, be it known that on presentation of this certificate to the receiver of public moneys for New Madrid county, and upon full payment to him of the said sum of seventeen hundred and twenty-nine dollars and twenty cents, the said Augustus E. Shields shall be entitled to receive a patent for said land.
“$1,729.20.
“ (Duplicate).
“John T. Scott, Register.”

He then offered in evidence the- following unsigned assignment of the above certificate to- Shapley R. Phillips :

“For value received, I, Augustus E. Shields, to whom the within certificate was issued, do> hereby sell and assign unto Shapley R. Phillips, of New Madrid county, and to his heirs and assigns forever, the said certificate, and authorize him to receive from the county -court and said county a patent therefor.
“Witness my hand and seal this —— day of June, eighteen hundred and fifty seven.
“Attest:
.(Seal.) ”

The introduction of which was objected to by the defendant, and was sustained by the court. To which action of the court plaintiff duly excepted.

.Plaintiff next introduced the following receipt given by the treasurer of New Madrid county to Shapley' E. Phillips:

“Eeceived of Shapley E. Phillips two thousand two hundred and thirty-three dollars and seventy-four cents in payment of land bought of the county by Edward Coleman, Wm. D. Waldrop and Augustus E. Shields, and in final payment for all land they bought at the May term of our county land sales, in 1857.
“August 14th, I8601.
“Geo. W. Dawson, Treasurer.”

All record entries of this sale were destroyed by fire during the civil war between the years- 1861 and 1865.

The plaintiff then introduced evidence tending to show that he was one of the heirs at law of Shapley E. Phillips, deceased; and that the land in controversy, with other large tracts lying in that county, were, in October, 1870, partioned by a decree of the circuit court of that county, and that this two hundred and eighty acres, together with other lands, were decreed and set over to him as his interest in his grandfather’s estate. The evidence also tended to ‘ show that during the greater portion of the time from 1860 to 1896 the land was assessed in the name of plaintiff and those through whom he claims title-, and that he and they paid all the taxes thereon during all of those years.

It is undisputed that the land is wild, uninclosed timber land, and the only open acts of ownership exercised over it were to cut and haul timber therefrom for rails and fuel.

Several witnesses testified that Phillip’s possession had been exclusive, open and notorious ever since the year 1860 and that it was generally understood in the community in which the land was located that it belonged to plaintiff and his ancestors during all that time.

Tbe pleadings allege and the uncontradicted evidence in the case shows that the legal title to the land in question is in the defendants. They also introduced evidence tending to show that they and those through whom they claim title were purchasers from the county for value and had no knowledge or notice that plaintiff had any claim, right, title or interest in or to the land prior to May 25th, 1899, the day the county patented the land to Iiimmelberger in payment for the construction of the ditches or drains mentioned in the pleadings.

The defendants’ evidence also tended to- show that before they purchased they had an abstract of title made to the land, and that it disclosed no- claim of title or interest of the plaintiff to the land. Their evidence also tended to prove that the land was. wild, uninclosed wood land with no one in actual possession thereof, and that there was no one exercising acts of ownership over the land prior to the date of the patent, and that defendants had no knowledge or information regarding plaintiff’s said claim to the land. Defendants’ evidence also tends to show that the county at all times claimed to own the land and dealt and contracted regarding it as if it was the absolute owner thereof.

I. There are many leg'al propositions presented for our consideration by the briefs filed in this cause; but, viewing the case as we do, it would be a useless waste of time to- discuss more than one of them.

It is earnestly insisted by learned counsel for appell ant that the evidence shows that Shapley R. Phillips, assignee of the Shields certificate of purchase, purchased the land in controversy from New Madrid county on August 14, 1860, as appears by the receipt of that date, signed by Geo. W. Dawson, treasurer of the county; that the payment of the purchase money by him and its acceptance by the county operated in equity as a conveyance of the equitable interest in the land to him, and that the county was thereby constituted a trustee of the legal title and held it as such for his use and benefit; and that when those through whom defendants claim acquired the title from the county by means of the patent, dated May 25, 1899, with knowledge of the existence of plaintiff’s equitable title thereto, equity would and did substitute them in lieu of the county as trustees of the legal title for the use and benefit of the plaintiff and those through whom he claims, and that a court of equity should execute the trust by divesting the legal title out of the defendants and investing it in the plaintiff.

The trial court refused to make and enter such a decree, and we think properly so, for the following reasons :

It will be observed by reading the register’s certificate of sale of the land to August E. Shields, dated May 23, 1857, that Shields paid nothing whatever to John T. Scott, the register, for that certificate of purchase, and the only evidence offered tending to prove Phillips paid the county for the land described in that certificate was the receipt of Geo. W. Dawson, treasurer of the county, dated August 14,1860. By reading that receipt it will be seen that it does not mention the land described in the certificate of sale, dated May 23, 1857, signed by John T. Scott, register of the swamp lands, but, upon the contrary, it in express terms acknowledges the receipt of the purchase money for lands sold by the county to Edward Coleman, Wm. I>. Waldrop and Augustus E. Shields.

No court would be warranted in finding that the lands sold by the county to the three persons, named in the treasurer’s receipt were the same lands described in the certificate of sale, dated May 23,1857. The legal import of the language employed in the treasurer’s receipt is that those three gentlemen purchased the lands therein mentioned as tenants in common and cannot be tortured into meaning that it referred- to separate tracts of land purchased by each of them in severalty. That being true, then there is no evidence that plaintiff or any of those through whom he claims title ever paid the county one cent for the land sued for; and it cannot be claimed that Phillips was the equitable owner of the land or that the county held the legal title thereto' as trustee for the benefit of the plaintiff. The county, therefore, having never disposed of the legal or equitable title to the land, she had the perfect legal right to convey it to defendants’ grantors.

But conceding for the sake of argument that the land purchased and paid for by Shapley R. Phillips is the same land mentioned in the treasurer’s receipt, yet the evidence disclosed by this record falls far short of being strong, clear and convincing that defendants and their grantors had any knowledge or notice of plaintiff’s alleged claim of title to the land. While there was some evidence introduced tending to prove that fact, yet there was- evidence equally strong introduced by defendants tending to disprove that fact.

This court has repeatedly held “that where the trier of the facts has the witnesses.before him, the op>portunity of observing their demeanor on the witness stand and their manner in testifying places him in a much better position to judge of the weight to be giveu to the testimony of the respective witnesses than this court could possibly have. And that even in equity cases, wliere this court has the right to' review and weigh the evidence, the usual practice is to defer largely to the finding of the trial court on issues of fact and refuse to- disturb a judgment of the lower court on the grounds that the findings were against the weight of the evidence.” [Brecker v. Fillingham, 209 Mo. l. c. 583 and 584, and cases cited.]

The evidence in this case brings it squarely within the meaning of that rule. Then tested by that rule there can be no question about the correctness of the conclusions reached by the trial court.

Finding no substantial error in the record, the judgment of the circuit court should be affirmed, and it is so ordered.

All concur.


author: LAMM, J.

text:
    MARY LOHMEYER v. ST. LOUIS CORDAGE COMPANY, Appellant.
    Division One,
    November 25, 1908.
    1. PLEADING: Factory Act: Public Act. It is not necessary for plaintiff, in charging that plaintiff was negligent in not fencing the dangerous machinery at which she worked and while doing so lost her fingers, to specifically plead the statute (Sec. 6433, K. S. 1899) on which her case is based, as that is a public act.
    2. APPELLATE JURISDICTION: Raised at Any Stage. Questions of jurisdiction as to the subject-matter may be raised at any stage of the case, in any court, by either court or counsel.
    3. -: Constitutional Question: How Raised. Objection to the introduction of any testimony on the ground that the petition does not state facts sufficient to constitute a cause of action; the asking and refusal of an instruction in the nature of a demurrer to the evidence at the close of plaintiff’s case; and the asking and refusal of a peremptory instruction for defendant at the close of the whole case, do not, singly or collectively, so raise a constitutional question as to give the Supreme Court jurisdiction over the appeal.

      4. -: -: General Reference to the Constitution, State or Federal, is not sufficient to raise a constitutional question. The appellant must call the court’s attention to the specific provision of the Constitution impinged upon by its adverse ruling.
    5. -: -: Nine-Jury Law. An attack in the instructions on the power of nine jurors to render a verdict in a civil case does not put into the case a constitutional question if the verdict was unanimous. Besides, the constitutionality of the nine-jury law has been settled.
    6. -: -: In Motion for New Trial. As a general rule a constitutional question cannot be raised for the first time in the motion for a new trial. Where it can be raised in no other way that can be done. But it should always be raised at the earliest stage in the proceeding that good pleading and orderly procedure will admit of under the circumstances of the given case; otherwise, it will be considered waived. If plaintiff grounds his right of action on a statute which defendant contends is unconstitutional, he cannot raise the question in the motion for a new trial, but should put it in his answer and keep it alive.
    Appeal from St. Louis City Circuit Court. — No». Daniel D. Fisher, Judge.
    Transferred to St. Louis Court of Appeals.

      Wm. N. é Davis Biggs for appellant.

      Kinealy & Kinealy for respondent.
   LAMM, J.

Domiciled in St. Louis, defendant corporation makes and sells rope and twine. In its factory there is in use a machine for twisting hemp and forming rope, known as a “forming machine.” Plaintiff, a young woman of twenty years, labored at the machine as an operator. It was an intricate contrivance set in an iron frame and consisting of gearing, cogwheels, pulleys, belting, etc., and was manipulated by a lever, regulating the power.

On the 13th day of February, 1902, her left hand was caught in the gearing and cogwheels and two¡ of her fingers were so crushed as to result in amputation. In a suit, grounded on the charge that defendant negligently left the gearing and cogwheels of that machine uncovered and unguarded; she had judgment for $1,500. That amount was held excessive, nisi, and she was forced to remit $500. From the new judgment of $1,000 defendant appeals.

The petition does not specifically plead section 6433, Revised Statutes 1899' of the Factory Act, hut as that is a public act of which courts take judicial notice, it was not necessary. Her case, however, is confessedly based on that statute, for at common law an employer owed no duty to his employee to fence his machinery.

Defendant stood for its defense on (1) a general denial coupled with an admission or two not material to any question made, (2) an assumption of risk, and (3) contributory negligence.

To sustain the issues on her part, plaintiff put in proof tending to show the negligence complained of and tending to avoid the defenses of assumption of risk and contributory negligence. To sustain the issues on its part, defendant put in proof tending to show no> negligence in the particulars charged, and tending to, show an assumption of risk and contributory negligence. The case was put to the jury on instructions restricted to the foregoing issues, with the result indicated.

Questions of jurisdiction (at least of the subject-matter) may be raised at any stage of case in any court, by either court or counsel. [Cable v. Duke, 208 Mo. l. c. 558.]

If we have jurisdiction, it is because a constitutional question was raised and is involved in the case. That question obtrudes itself and seeks an answer at the door of the case. To it, then, we address ourselves.

(a) Up to the stage of verdict and judgment, no constitutional question was raised. True, defendant by counsel had objected to the introduction of any testimony on the ground the petition did not state facts sufficient to constitute a cause of action. True, counsel had asked and were denied an instruction in the nature of a demurrer to the evidence at the close of plaintiff’s case, and again were refused a peremptory instruction at the dose of the whole case, yet these general challenges did not raise or involve a constitutional point according to recognized canons of procedure.

Whatever the use of an ambush in war, or games of dxance, its use does not commend itself to jurisprudence. An appellant may not mask his position in that way and preserve under such cover his constitutional point. Nor would a general reference to the Constitution, State or Federal, do. He must come into the open and put his finger on the spedfic provision of the Constitution touched by the adverse ruling. [Excelsior Springs to use v. Ettenson, 188 Mo. 129, and cases cited; Davis v. Thompson, 209 Mo. l. c. 196, et seq.; Independence to use v. Knoepker, 205 Mo. l. c. 342, et seq., and cases cited.]

(b) By a ground in the motion for a new trial, numbered 13 (said in chimney-corner philosophy to be unlucky), counsel under specifications a, b, c, cl, e and /, raised a constitutional point in that nine jurors out of twelve could not constitutionally render a verdict. It seems the court had told the jury that might be done. But the verdict in this case was a unanimous one, and since the jury did not use the (alleged) unconstitutional privilege obligingly extended to them, no harm was done and that constitutional question is afield. Not only so, but there is nothing in the point to give us jurisdiction. That question is no longer open. [Gabbert v. Railroad, 171 Mo. 84; Chrismer v. Bell Tel. Co., 194 Mo. l. c. 196; Nugent v. Armour Packing Co., 208 Mo. l. c. 494.]

(c) By the 14th ground in the motion for a new trial, it was alleged that section 6433, Revised Statutes 1899, supra, was unconstitutional because it was special legislation as denounced in sections 53-4, article 4 of our Constitution; because it deprived defendant of its rights as a citizen of the United States under section 1 of the 14th Amendment of the Federal Constitution ; and because said statute and verdict deprived it of its property without due process of law guaranteed by said 14th Amendment.

If we have jurisdiction, then, it is because a constitutional question was raised and is involved in the 14th clause in the motion. Is there soundness in the point?

(1) A constitutional question might possibly obtrude itself at the trial regardless of the pleadings through some unanticipated ruling on the introduction ,of testimony when such question was squarely and with due precision made on objection and exception saved. If raised in that way in an appropriate case, and if the trial court had a chance to correct its error under an appropriate ground in the motion for a new trial, the point would be saved on appeal. So a constitutional question might be preserved on appeal in rare cases by a clause in the motion for a new trial when it did not appear elsewhere in the record. An example of that kind of a case would be where the eo-urt had given some instruction directly or by necessary implication for the first time involving the Constitution — for instance, permitting nine jurors out of twelve to render a verdict. [Logan v. Field, 192 Mo. l. c. 66.] In such case, or cases of a kindred nature, the first door open for a constitutional question to enter would be in the motion for a new trial. Appellant could raise it no sooner and nowhere else.

But it must be taken as settled law that, in so grave a matter as a constitutional question it should be lodged in the case at the earliest moment that good pleading and orderly procedure will admit under the circumstances of the given case, otherwise it will be waived. [Barber Asphalt Pav. Co. v. Ridge, 169 Mo. l. c. 387, et seq.]

If plaintiff grounds his right of action on a statute which defendant contends is unconstitutional it should be put in the answer and kept alive. If the defendant grounds an affirmative defense on a statute that plaintiff contends has a like vice, it would seem he should plead its unconstitutionality in the reply (though that has been questioned. Kirkwood v. Meramec Highlands Co., 160 Mo. 111). If proper to put it in instructions, it should be lodged there and the ruling of the court invoked. Unless one or the other of those courses is pursued, life enough is kept in no such question to give this court jurisdiction on appeal except in one instance, vis.: where on the whole case some provision of the Constitution was either directly or by inexorable implication involved in the rendition of the judgment and decided against appellant. The foregoing propositions are within the letter and reasoning of a line of cases. [Woody v. Railroad, 173 Mo. l. c. 550; Hulett v. Railroad, 145 Mo. 35; Shell v. Railroad, 202 Mo. l. c. 344; State ex rel. v. Bland, 186 Mo. 691; State ex rel. v. Smith, 141 Mo. 1; State ex rel. v. Smith, 177 Mo. 69; State ex rel. v. Smith, 152 Mo. 444; Suess v. Ins. Co., 193 Mo. l. c. 570; Clark v. Porter, 162 Mo. 516; Ash v. Independence, 169 Mo. 77.]

The premises considered, we are of opinion that, as appellant neglected to inject its constitutional question in its answer and in its instructions, it neglected its opportunity and should be held to a waiver.

(2) This ruling is softened to us by the commendable frankness of industrious counsel who learnedly discuss other assignments of error but decline to discuss their constitutional point or cite us to any authority maintaining their position. They justify themselves in this significant omission under the doctrine announced in Lore v. American Mfg. Co., 160 Mo. l. c. 622, where we said: “The constitutionality of such laws is no longer in doubt. Laws like this, created for the safety of those whose necessity compels.them to submit to hazards which they would otherwise be unwilling to assume, have been sustained in all the States of the Union, such as provisions for fire escapes, inspection of boilers, ventilation of mines, and for covering and otherwise protecting machinery. [Durant v. Lexington Coal Min. Co., 97 Mo. 62; People ex rel. v. Warden City Prison, 144 N. Y. 529; People v. Smith, 108 Mich. 531.]

Other cases sustaining the constitutionality of factory laws, under the exercise of the police power of the State, are cited by learned counsel for plaintiff in their brief.

In cases involving the jurisdiction of this court we have sedulously retained to ourselves the right to look within the shell of briefs, pleadings and records to the kernel of the thing, to see if the jurisdictional question is of substance and not merely colorable (Vanderberg v. Gas Co., 199 Mo. 455, and cases cited); for to give life to a jurisdictional question it must be real, not colorable only.

Doing so, we find there is no constitutional question raised and preserved. . This holding ousts us of jurisdiction.

The'cause must be transferred to the St. Louis Court of Appeals. It is so ordered.

All concur.


text:
    K. K. SHEMWELL v. THOMAS A. McKINNEY, Appellant.
    Division One,
    November 25, 1908.
    1. APPEAL: Defective Abstract: No Affidavit. Unless thf abstract of the record proper shows an affidavit for an appeal, or the substance of such affidavit, the appellate court acquires no jurisdiction of the cause.
    2. -: -: Bill of Exceptions: Extension of Time. Where the abstract of the record proper does not show that the bill of exceptions was filed in time, or an order of record granting leave to file it in vacation, nothing but the record proper can be considered on appeal, even though the appellate court has jurisdiction to hear the cause.
    Appeal from Ripley Circuit Court. — Ho». Samuel Davis, Special Judge.
    Appeal dismissed.

      Charles D. Ya/ncey for appellant. -

      Jno. M. Atkinson for respondent.
    (1) Appellant’s abstract of record proper does not show an affidavit for appeal in tbis cause, or state tbe substance of sucb an affidavit; and tbis court is without jurisdiction to bear and determine tbis cause. Such requirements of tbe record proper can not be shown by recitals in tbe bill of exceptions. Tbe burden is on appellant to show jurisdiction in tbis court of tbis cause. Ins. Co. v. Hurst, 129' Mo. App. 627; Greenwood v. Parlin & Orendorff Co., 98 Mo. App. 408; Peters v. Edge, 87 Mo'. App. 283; Schested v. Kansas City, 68 S. W. 1068; Geisign v. Schowengerdt, 24 Mo. App. 554; Clellant v. Shaw, 51 Mo. 4401; Same v. Roscoe, 93 Mo. 146; Lengle v. Smith, 48 Mo. 276; Pennowfsky v. Ooerver, 205 Mo. 135; State ex rel. v. Broad-us, 210 Mo. 1. (2) Appellant’s abstract of record proper does not show either tbe filing of a motion for a new trial or motion in arrest, and the ruling of the court thereon. This is a fatal defect. Pennowfsky v. Coerver, supra; Hill v. Butler County, 195 Mo. 511; Harding v. Bedoll, 202 Mo. 625; Stark v. Zehnder, 204 Mo. 442; Mason v. Smith, 124 Mo. App. 596; Dockery v. Lowenstein, 121 Mo-. App. 394. (3) Appellant’s abstract of record proper does not show the filing of his purported bill of exceptions in term time, or an order of record giving leave to file samó in vacation. The recitals of such orders in the purported bill of exceptions are insufficient. Pennowfsky v. Coerver, supra; Harding v. Bedoll, supra; Hill v. Butler County, supra; Stark v. Zehnder, su/pra; St. Charles ex rel. v. Deemar, 174 Mo. 122.
   WOODSON, J.

This suit was. brought in the circuit court of Ripley county, and had for its object the quieting the title to certain real estate described in the petition, which was in the usual and approved form.

The answer was quite lengthy and set up various defenses, all of which were demurred to by the plaintiff, excepting the plea of the ten and thirty years’ statutes of limitation. The demurrer was sustained, and the respondent declined to plead further, and went to trial upon the question of limitation.

A trial was. had, and after respondent had introduced all his evidence, he took a nonsuit as to a portion of the land sued for, and recovered judgment for a part of the balance sued for, while the judgment for the remainder was for the appellant. Appellant has appealed from the judgment to this court.

The abstract of the record proper does not show an affidavit for an appeal in this cause, nor does it state the substance of any such an affidavit.

That omission prevents this court from acquiring jurisdiction of the cause. [State ex rel. v. Broaddus, 210 Mo. 1; Insurance Co. v. Hurst, 129 Mo. App. 627; Greenwood v. Parlin & Orendorff Co., 98 Mo. App. l. c. 408; Pennowfsky v. Coerver, 205 Mo. 135.]

Nor does the abstract of the record proper show that the bill of exceptions was filed in time, or an order of record granting leave to file it in vacation.

This failure would prevent us from considering anything but the record proper, even though we had jurisdiction to hear the cause; but as. we have no jurisdiction thereof, as before stated, the appeal is dismissed.

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


text:
    THOMAS L. WRIGHT v. JOHN SEIFFLE et al.; THOMAS A. McKINNEY, Appellant.
    Division One,
    November 25, 1908.
    APPEAL: Defective Abstract: No Affidavit. Where the abstract of the record proper fails to disclose that an affidavit for an appeal was filed in the trial court, the appellate court acquires no jurisdiction of the cause.
    Appeal from Ripley Circnit Court. — lion. Samuel Davis, Special Judge.
    Appeal dismissed.

      Charles D. Ycmcey for appellant.

      Jno.'M. Atkinson for respondent.
   WOODSON, J.

This suit is to quiet title and in ejectment. The first count of the petition is based upon section 650, Revised Statutes 1899, and is to quiet the title to the northwest quarter of the southwest quarter of section 10, township 24, range 3 east, Ripley county, this State. The second count is ejectment in usual form for the possession of the same tract of land.

The answer upon which the cause went to trial was the ten and thirty years’ statutes of limitation.

There was a trial before the court and a jury, which resulted in a verdict and judgment for plaintiff; and after an unavailing’ motion for a new trial, defendant appealed to this court.

The appeal in this case was taken by what is known as the “short method.” Appellant’s abstract of record proper fails to disclose that an affidavit for an appeal was filed herein. Without such an affidavit this court acquires no jurisdiction of the cause. [Continental Insurance Co. v. Hurst, 129 Mo. App. 627; State ex rel. v. Broaddus, 210 Mo. 1.]

The record proper also fails to show that the appellant filed a motion for a new trial or in arrest of judgment.

The questions involved in this case are identical with those involved in the case of Shemwell v. McKinney, page 692, this volume, and for the reasons therein stated the appeal in this case is also dismissed.

All concur, except Valliant, P. Jabsent.