author: GRAVES, C. J. BOND, J. WALKED, J.

text:
    JOSIAH B. WAMPLER v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant.
    In Banc,
    December 21, 1916.
    1. MOTION FOE NEW TRIAL: Sufficiency: Erroneous Instructions: Raised by Demurrer to Evidence. A motion for a new trial which, contains as one of its grounds that “the court erred in overruling defendant’s demurrer to the evidence interposed at the close of plaintiff’s case” is sufficiently specific to authorize the appellate court to review alleged 'errors in the giving and. refusing of instructions.
    2. -: Specific Assignments: Section 1841 Refers to Pleadings. Held, by GRAVES, C. X, a majority neither concurring nor dissenting, that section 1841, Revised Statutes 1909, is now and has long been a part of the article devoted to the distinct subject-matter of-“Pleadings,” and in saying that “all motions shall be accompanied by a written specification of the reasons upon which they are founded, and no reason not so specified shall be urged in support of the motion” it had reference to motions of all kinds which are of themselves in the nature of pleading, or which attack a pleading, and not to motions for new trials in civil cases. This view is further fortified by the fact that section 2045, which is found in the article pertaining-to new trials and is the only section in the article pertaining to motions for new trials, says nothing about the contents of such motions.

      Held, by BOND, X, with whom REVEDLE, X, concurs, that section 1841, in express terms, is applicable to all motions, and cannot be limited to certain motions filed during the trial of a lawsuit; but its requirement that motions “shall be accompanied by written specifications of the reasons on which they are ■founded” is sufficiently met, to authorize a review of errors in the matter of instructions, by a motion for a new trial which contains as assignments that the court erred “in refusing to . give each and all instructions requested by defendant” and “in giving each and every instruction which it did give at the request of plaintiff.”

      Held, by WALKER, X, that the mere arbitrary arrangement of a section of the code does not afford a cardinal reason for its interpretation, but the text, the subject-matter and the purpose intended to be effected should first be considered in ascertaining its meaning; that section 1841 is clear and definite and should be construed and applied according to its unmistakable meaning, and when that is done it has reference to all motions, filed for whatever purpose in a suit; and it does not permit general assignments in a motion for a new trial.

      3. -: General Assignment Sufficient. A motion for a new trial which contains no reference (either general or specific) to the error complained of, is not sufficient; but it is sufficient to make a general assignment of error in the motion, both as to the reception and exclusion of evidence, and the giving and refusal of instructions. [WALKER, J., dissenting.]
    4. v-:-: As to Errors in Instructions. A general assignment in the motion for a new trial that the court erred in the giving or refusing of instructions does no injustice to the trial court, for the instructions are the court’s and the giving or refusal of instructions is the court’s act, and a general assignment sufficiently advises him that he has erred in his declarations of law as applicable to the case. [WALKER, J., dissenting.]
    5. NEGLIGENCE: Master and Servant: Starting Train With Jerk. Where plaintiff, employed]to post signs on gate openings between certain towns along defendant’s railroad, asked the conductor of a through freight train permission to ride to one of such towns and was told the train would slow up there, and plants his case on an allegation that said train after it had slowed up “suddenly started forward with a violent and unusual jerk,” whereby he was thrown from the flat car upon which he had placed himself, he fails to prove his case if he adduces no evidence that the jerk was an unusual one in the operation of freight trains.
    6. -: -: --: Recovery as Passenger. Where plaintiff grounds his action upon the relation of master and servant, he cannot invoke the rule regulating the relationship of carrier and passenger.
    Appeal from Jackson Circuit Court. — Hon. Harris Bob- ‘ inson, Judge.
    Reversed.

      Thomas B. Morrow, Cyrus Crane, George J. Mersereau and John H. Lathrop for appellant;
    (1) The peremptory instructions should have been given. There was no proof of any actionable negligence. The jerk or jolt of the train was not unusual or violent and therefore not negligent. Hedrick v. Railroad, 195 Mo. 104; "Waite v. Railroad, 165 Mo. 612; Erwin v. Railroad, 94 Mo. App. 289; Bartlett v. Railroad, 148 Mo. 124; Howell v. Railroad, 149 Mo. App. 621. (2) The instruetion given on behalf of plaintiff was erroneous, (a) It submitted the case on a theory not embraced in the pleading, (b) It failed to require the jury to find that plaintiff was in a position of danger and assumed this, or left it to be assumed, from the mere fact that plaintiff was dismounting from the train, (c) It departs from the petition in allowing negligence to be predicated on starting with a forward jerk, instead of a violent and unusual one as the petition alleged, (d) It erroneously assumed that the brakeman was controlling the movements of the train, whereas the conductor did that. These errors and wrong assumptions and omissions were not cured in' the instruction by the use of the words “carelessly” and “negligently.” Koontz v. Kaufman, 31 Mo. App. 420; Hinzman v. Railroad, 182 Mo. 623.

      Guthrie, Gamble & Street for respondent.
    (1) The motion for new trial contained no specific assignment of error on the giving or refusing' of any instruction; and this leaves defendant without ground of complaint on account thereof. State v. Katz, 181 S. W. (Mo.) 425. (2) Instruction 1 is not erroneous in. permitting the jury to find that the brakeman controlled the train by signal to the extent of causing its forward start by the “high-ball” he gave to the engineer, (a) Because it is common knowledge that such acts are within the scope of a brakeman’s duties, (b) Because the direct and circumstantial evidence that the brakeman gave the “high-ball” to the engineer, and what followed, warrant the conclusion that the brakeman did the thing which produced the result, (c) Because the failure of defendant to produce the evidence of the brakeman, or any of its trainmen, or to account for not doing so, raises a presumption that the brakeman by his “high-ball” signal did cause the jerk. Packing Co. v. Enzenperger, 77 Kan. 406; Kirby v. Talmadge, 160 U. S. 379; Kirk v. Middlebrook, 201 Mo. 245; Johnson v. Railroad, 150 Mo. App. 304; Powell' v. Railroad, 255 Mo. 420; 3 Ency. Evidence, p. 81. (3) The court rightly refused to direct a verdict for defendant, (a) Because the evidence warranted a finding that the jerk, if not unusual, at least was unnecessary, and the product of a negligent failure to exercise the care which defendant owed to plaintiff as a passenger-employee. McCee v. Mo. Pac. Ry. Co., 92 Mo. 208; Haas v. Railroad, 111 Mo. App. 706; St. Clair v. Railroad, 122 Mo. App. 519; Railroad v. Larussi, 161 Fed. 66; Mitchell v. Railroad, 132 Mo. App. 143; Tinkle v. Railroad, 212 Mo. 445. (b) Because the negligence pleaded was the negligence proven. Leslie v. Railroad, 88 Mo. 50; Ridenhour v. Cable Ry. Co., 102 Mo. 270; Cobb v. St. Ry. Co., 149 Mo. 135; Choquette v. So. El. Ry. Co., 152 Mo. 257; Duffy v. Transit Co., 104 Mo. App. 235; Senf v. Railroad, 112 Mo. App. 74; Nelson v. Met. St. Ry. Co., 113 Mó. App. 702; Harrison v. Lakenan, 189 Mo. 581; Smith v. Fordyee, 190 Mo. 1; Creen v. Met. St. Ry. Co., 122 Mo. App. 647; Peck v. Traction Co., 131 Mo. App. 134; Shinn v. United Rys. Co., 248 Mo. 173; Knight v. Donnelly Bros., 131 Mo. App. 152; Crawford v. Stock Yards, 215 Mo, 394. (e) Because the variance, if any, between the petition and the proof, did not amount to failure of proof within Sec. 2021, R. S. 1909, and defendant waived any question of lesser variance by demurring to plaintiff’s evidence instead of objecting to being put upon its defense and filing the affidavit, in compliance with Sec. 1846, R. S. 1909. Mellor v. Mo. Pac. Ry. Co., 105 Mo. 455; Cobb v. St. Ry Co., 149 Mo. 135; Choquette v. So. El. Ry. Co., 152 Mo. 257; Fisher & Co. v. Realty Co., 159 Mo. 562; Franklin v. Ry. Co., 97 Mo. App. 473; Litton .v. Ry. Co., Ill Mo. App. 140; Hensler v. Stix, 113 Mo. App. 162. (4) The verdict was for the right party and should not be reversed in the absence of plainly prejudicial error. R. S. 1909, secs. 1794, 1831, 1846, 1847, 1850, 1865, 2021, 2082, 2119; Noble v. Blount, 77 Mo. 235; Sherwood v. Railroad, 132 Mo. 339; Barkley v. Cemetery Assn., 153 Mo. 300; King v. King, 155 Mo. 406; Bragg v. Railroad, 192 Mo. 331; Creen v. Terminal Assn., 2Í1 Mo. 18; Trainer v. Mining Co, 243 Mo. 359; Wicecarver v. Ins. Co., 137 Mo. App. 247; Shinn v. United Rys. Co., 248 Mo. 173. (5) The abstract of the record proper does not show when the motion for new trial was filed, and heneé no error in the giving or refusing of instructions is available to defendant. Harding v. Bedoll, 202 Mo. 625; R. S. 1909, sec. 2025.
   GRAVES, C. J.

This is an- action for personal injuries wherein the damages are alleged to be $25,000.

The action is predicated on the relationship of master and servant, and not upon the relationship of passenger and carrier. It is also predicated upon certain Kansas statutes relating to masters and servants, which are specifically pleaded. It standsi admitted in the record that defendant is an interstate carrier. After specifically pleading the Kansas statutes, and invoking them as the foundation for his right of recovery, the petition then proceeds, as follows:

“On May 2, 1912, in said town of Quenemo, while plaintiff, in defendant’s service, was dismounting from one of defendant’s trains, said train was suddenly started forward with a violent and unusual jerk, whereby plaintiff was thrown down and run over by said train, and his left leg destroyed, thereby causing plaintiff great suffering, loss of earnings and earning power, and putting plaintiff to an expense of not less than two hundred and fifty dollars for surgical and medical attendance, nurse hire and medicine in endeavoring to be cured of his injuries. ,
“Said injuries are permanent, and ever since their infliction upon plaintiff have caused him great suffering' which will continue so long as plaintiff lives. Said injuries were produced by defendant’s negligence.
“Said negligence of defendant was in that defendant, through its agents and servants in charge of said train, carelessly and negligently caused the same to start forward with a sudden jerk, whereby the results aforesaid were produced, and in the further fact that defendant after it could, by ordinary care, have known, and did know, of plaintiff’s danger, still could and should have avoided injuring plaintiff by refraining from doing the things which it is above alleged defendant did, and by stopping said train after it knew that plaintiff had been thrown down.
“By reason of the facts aforesaid plaintiff has been damaged in the sum of twenty-five thousand dollars.
“Wherefore, plaintiff prays judgment against the defendant in the sum of twenty-five thousand dollars, with costs of suit.”

The divisional opinion correctly outlines the further facts, thus:

“The plaintiff at the time of his injury was employed by defendant to post signs on gates opening on defendant’s right of way. He was directed to post these signs along the right of way of defendant’s road between the towns of Quenemo and Osage Oity in, the State of Kansas. He went to the conductor of a through freight train at Ottawa and asked permission to ride thereon with his tools and material to the town of Quenemo. Permission' was given, but he was informed that the train would not stop at Quenemo; but at plaintiff’s request the conductor said he would slow down there to enable plaintiff to get off. A bundle of signs and a number of tools were placed on a flat car in the train and plaintiff was told that he could ride thereon. He did so, and while en route engaged in conversation with a brakeman who informed him that he thought the train would stop at Quenemo to take water. When the train neared that town it slowed down., as the conductor had informed plaintiff would be done, and the latter threw the gate signs and a bundle of wire off of the flat car, and gathered up his tools and dinner bucket and proceeded to ólimb down the stirrup of the car so as to alight when the train stopped at the water tank, if it did so. In one hand he held a dinner bucket, and in the other a brace, bit and clam hammer. While he was in this position the brakeman hallooed at him, several times to get off and motioned to him with his hand to the same effect. He did not do so, and the brakeman signaled the engineer to increase the speed of the train. As a result, plaintiff, in attempting to alight, fell under the wheels and one of his legs was so injured that amputation became, necessary. The testimony, which is that of plaintiff alone, is definite that he was not attempting to jump off the train, hut that he fell off of same.
‘ ‘ The defendant offered no evidence on the ground that the negligence charged in the petition was not established.”

The case was submitted to the jury on the following instruction for plaintiff:

“If you find and believe from the evidence that on or about the 12th day of May, 1912, the plaintiff was an employee of the defendant, and, as such, was dismounting from one of defendant’s trains, and that, while so dismounting, if he was, his position was known to another of defendant’s employees controlling the movements of such train by signals, and that such other employee, so knowing, if he did, plaintiff’s position, negligently by a signal caused said train to be started forward with a forward jerk, and that as a direct result of such forward jerk, if any, plaintiff was thrown down and under said train, and thereby injured, then your verdict should be for plaintiff.
“Ordinary care is that degree and kind of care ordinarily exercised by an ordinarily prudent person under the same or similar circumstances. Negligence is the failure to exercise ordinary care.” .

It will be observed that the instruction is predicated ' upon the relation of master and servant.

Going back to the pleadings, it should be stated that the answer was (1) a general denial, (2) plea of contributory negligence and (3) assumption of risk.

Defendant offered no evidence, but offered a demurrer to the evidence, and other instructions, after the overruling of the demurrer. For the defendant the court gave the following instructions, number 2 and 6.

“2. The court instructs the jury that the plaintiff cannot recover in this case on the- ground that defendant was guilty of negligence in that the brakeman ordered or directed plaintiff to get off the moving train.

“6. The court instructs the jury that there is not sufficient evidence in this case to prove that defendant after it knew or by exercise of ordinary care conld have known that plaintiff had fallen to .the ground could have stopped the train and avoided injuring him. ”

The court refused to give instructions numbered 1, 3, 4, 5, 7 and 8 asked by defendant.

Of its own motion, the court gave instructions C-l, C-2 and C-3, the first two of which read:

“C-l. The court instructs the jury that there is not sufficient evidence to warrant the jury in finding that the jerk, following the go-ahead signal, was an unusual jerk.
“C-2. The court instructs the jury that if they find and believe from the evidence in this case that the plaintiff’s conduct in being in the position in which he was at the time the-injury in question occurred, was negligence upon his part, as negligence is defined in other instructions herein, you must consider such negligence, if any, not as a bar to plaintiff’s recovery, but you shall diminish the damages to which the plaintiff otherwise would be entitled, if any, in proportion to the amount of negligence, if any, attributable to the plaintiff.”

Instruction C-3 was a formal one telling the jury that nine of them might find a verdict, and giving them forms for a verdict. Exceptions were duly saved in the usual form as to the giving and refusing of instructions.

The jury returned a verdict for $12,500, which by remittitur was reduced to $10,000, and from a judgment for said $10,000 the defendant has appealed.

The motion for’new trial is voluminous, but grounds 4, 5, 7, 10, 11, 12, 13 and 14 thereof read:

“4. Because the court erred in overruling defendant’s demurrer to the evidence interposed at the close of plaintiff’s evidence.
“5. Because the court erred in refusing to give defendant’s instruction interposed at the close of plaintiff’s evidence directing the jury to return a verdict for the defendant.
“7. Because the court erred in refusing to peremptorily direct the jury to return a verdict in favor of the defendant at the close of all the evidence.
“10. Because.the court erred in refusing to give each and all the instructions requested by the defendant, which it did refuse, to give.
• “11. Because the court, erred in giving each and every instruction which it did give at the request of plaintiff and on plaintiff’s behalf.' Such instructions and each of them were erroneous and defective.
“12. Because the court erred in each and all of the instructions given by the court of its own motion.
“13. Because the court erred in refusing to give proper and legal instructions requested by the defendant.
“14. Because the court erred in modifying proper and legal instructions requested by defendant and giving said instructions in a modified form.”

Points made and other applicable facts will be noted in the course of the opinion. ■

I. We are met with the contention, made by counsel for plaintiff, that the motion for new trial in the court nisi is not sufficiently specific to authorize this court to review the alleged errors in the giving and refusing of instructions. We have been flooded with briefs amicus curiae upon this- question. One of these numerous briefs is signed by 36 individuals and firms. The line-up would appear to be thát counsel representing appellants in cases pending here or in other appellate courts, are urging the view taken by appellant here, whilst counsel representing appellees in cases pending here and in other appellate courts have come to the rescue of appellee in this case. Friends of the court are therefore upon both sides of the question, and the court is required not only to determine the question as between the appellant and appellee in the instant case, but also to reconcile (a thing impossible) the conflicting views of its own friends. The court is left in a sorry plight so far as its friends are concerned. If we count these friends by numbers and upon that decide the case, we would perhaps, from the briefs filed, have to decide the dispute in favor of the appellee in the case at bar. But where our friends are so conflicting in their views as to the duty of the court, the safer plan is to take up the question in issue between appellant and appellee in the instant case, and decide'that matter upon the law as we see it, and let the matter go. To our many friends upon both sides we are deeply grateful for suggestions made, in the briefs, and we acknowledge that such have thrown much light upon the question. We only regret that our friends, in real friendly spirit, could not have gotten more nearly together. We did not anticipate that they would however, when we realize that each set were viewing the question through different colored optics.

With the view that we have of this ease we might pass upon the question urged, by suggesting that most certainly the question of the court’s refusal, of a demurrer to the testimony is sufficiently raised and preserved in the motion for new trial, but to settle the practice, we deem it best to go further. Not solely to settle the practice, but further because the question is in this case, the contention being that the demurrer to the evidence, being an instruction, falls under the same ban as other instructions. The question therefore is, are these instructions (including the demurrer to the evidence) before us for review, under the motion for new trial nisi? We think they are.

In the course of the several briefs we have our attention called to these statutes. In article 5 of chapter 21, Revised Statutes 1909 (which article relates to “Pleadings”), we find section 1841, which reads:

“All motions shall be accompanied by a written specification of the reasons upon which they are founded; and no reason not so specified shall be urged in support of the motion.”

In article 15 of chapter 21, Revised Statutes 1909 (which article relates “New Trials, Arrests of Judgment and Bills of Exceptions”), we find section 2025, which reads:

“All motions,for new trials and in arrest of judgment shall be made within four days after the trial, if the term shall so long continue; and if not, then before the end of the term.”

In article 16 of chapter 21, Revised Statutes 1909 (which article relates to “Appeals and Writs of Error”), we find section -2081, which reads:

“No exceptions shall be taken in an appeal or writ of error to any proceedings in the circuit court, except such as shall have been expressly decided by such court.”

Chapter 21 is our general code of civil procedure. Each article is devoted to a separate and distinct subject-matter. The subject-matter of article 5, in which article appears section 1841, supra, is “Pleadings.” The whole article is devoted to' this subject. In our judgment section 1841, supra, must be construed in the light of its surroundings. It is a, part of the article on pleadings, and evidently refers to motions of all kinds which are of themselves in the nature of a pleading, or which attack a pleading. It has always been so located in our civil code. We do not think that the lawmakers ever had in mind motions for new trial in the enactment of this section, when its location in our civil code is considered. If a motion is made to strike out an answer or a part of an answer, such' motion must specify the reasons therefor, and no reason not thus specified shall be considered by the court.

If a motion strikes at the petition, it must likewise be specific, in that it must assign the reason for the motion. There are other motions in the nature of pleadings, or striking at pleadings, which might be enumerated, but the above suffice to illustrate our view, and that view is that such section has no reference whatever to motions for new trials.

That the motions contemplated by section 1841, is of the character we claim, and not motions for new trial, is further sustained by the section which follows it, i. e., section 1842, which reads:

“Motions in a cause filed in term shall be filed at least one day before they may be argued or determined.”

We - have construed this latter section in Eddie v. Eddie, 138 Mo. l. c. 607, and held that a motion for the allowance of an attorneys’ fee in a partition suit, did not fall within the purview of this section, which required it to lay over for one day. Section 1842 evidently relates to the same motions referred to in section 1841.

When the surroundings of section 1841 are considered, we are firmly of the opinion that it has no reference to motions for new trial. The subject-matter of article 15 of chapter 21 is new trials, and the only section in that article pertaining to motions for new trial is section 2025, supra, and this says nothing about the contents of such motions. The whole controversy is disposed of by the foregoing ruling, but inasmuch as some of our opinions indicate that this section does cover motions for new trial, we will discuss it further in the next paragraph.

II. As indicated above there are cases in which it is held that our present statute, section 1841, has application to motions for new trial. [Polski v. City of St. Louis, 264 Mo. 458; Carver v. Thornhill, 53 Mo. l. c. 286; Sweet v. Maupin, 65 Mo. l. c. 68.]

The latter -two cases discuss section 48 of article 5, 2 Wagner’s Statutes, p. 1021. Sections 48 and 49, 2 Wagner’s Statutes, aré the same as sections 1841 and 1842 of Revised Statutes 1909, supra. Article 5 of Wagner’s Statutes, like article 5 of chapter 21 of Revised Statutes 1909, relates solely to “Pleadings and the Rules of Pleadings.” Motions for new trials in Wagner’s Statutes are treated of in article 12, 2 Wagner’s Statutes, sections 1 to 6 inclusive, pp. 1058 and 1059.

In our judgment the court, in the two cases last cited above, overlooked the fact that the section they were discussing was under the subject of pleadings and referred solely to motions which struck at pleadings or were in the nature of pleadings. In the Polski case, supra, Judge Brown, without an analysis of the'code provisions, simply reannounced what had been said in the two previous cases. They have all overlooked the fact that when the Civil Code took up the subject-matter of new trials and motions for new trials, not a word was said as to the form or substance of such motion. But this is sufficient on this line.

Respondent in the case at bar relies upon this Polski case, and the cases upon which that opinion is based. "We purpose a discussion of our own cases, and not those of the courts of' appeals. "We further purpose a discussion of the Civil Code and not the Criminal Code and the cases based upon the Criminal Code. This because the Criminal Code has a section prescribing the contents of a motion for new trial. [Sec. 5285, R. S. 1909.] In our view of the law there is an absence of such a provision in the Civil -Code on this subject'.

III. But granting that section 1841 is applicable to motions for new trial, the cases relied upon do not cover the case. Those cases are not cases discussing the insufficiency of an assignment of error in the motion for new trial, but are cases discussing the insufficieney of the- motion because of the absence of an assignment of error to cover the alleged error urged ^ the appellate court. In the Polski' case, Judge Brown sets out the assignment or grounds of error in the' motion for new -(trial; and they are just as general as they could be, but he does not condemn those assignments as being insufficient. He simply says (and rightfully so) that there was no assignment of error in the motion covering the error urged in the brief before this court.

In addition to the two early cases in 53rd and 65th Missouri Reports, supra, he cites the opinion of Judge Lamm, in Maplegreen Co. v. Trust Co., 237 Mo. l. c. 364. In the Maplegreen Company case the motion for new trial was just as general as the motion in the case now before us. Judge Lamm did not condemn this motion because the assignment of errors were insufficient, but what he did do was to say that the motion did not contain at all an assignment of error, for the alleged error urged in this court. Here is what he says:

“Attending to the motion for a new trial, it would be a most strained and unnatural construction on its language to find therein any' reference whatever to exceptions to the report of the referee or any complaint based on error in overruling those exceptions. The language of that motion fell from learned attorneys. They must be held to use words with precision and mean what they say — not what they do not say. When they use words well known to jurisprudence and well understood as filling certain offices, we are not permitted to give those words a loose, colloquial meaning, but define them secundum artem. In that motion they deal with ‘verdicts,’ the admission and exclusion of ‘evidence,’ ‘demurrers,’ ‘declarations of law’ and ‘damages’ — each of these terms has a well defined meaning in law. They complain therein of the rulings of the court and referee with regard to, those matters, but nowhere do they complain of the ruling of the court upon the exceptions to the referee’s report. It matters not that there are no ‘verdicts’ or ‘declarations of law’ in equity suits, and there are none here that we can find. Nor are there any ‘demurrers’ in this record. The argument runs this way: As there is nothing to which those complaints can apply, therefore, they should be given some vitality and held do apply to the exceptions to the referee’s report and to the action of the court in overruling them. But we decline to follow the lead of that argument. It would lead to dangerous and unheard of results, and play havoc with all certainty and precision of construction.
“In this conditioni of things,- although counsel may not have intended to waive those exceptions or waive their complaint of the court in overruling them, yet they do that very thing by pretermitting all reference thereto in the motion for a new trial.
“We have so lately been over this matter in State ex rel. v. Woods, 234 Mo. 16, that further exposition is out of place. Other authorities will appear in plaintiff’s brief, which the inquiring mind-may consult.”

The case referred to by our late Brother Lamm, is an opinion by the writer and in State ex rel. v. Woods, 234 Mo. l. c. 25, we then said:

“We have gone thus far in outlining the law to the end that we might discuss the serious point in this record. The hill of exceptions in this case preserves the exceptions and the ruling thereon. It shows that the defendants excepted to the ruling upon their exceptions. We also find a motion for new trial properly preserved, and an exception to the action of the court in its ruling thereon. The trouble, however, lies in the motion itself. This motion nowhere charges the court with error in overruling the exceptions to the report of the referee. It contains some eight grounds, but not one of them mentions the action of the court upon the defendants ’ exceptions to the report of the referee. The nearest to such a question is the second ground, which reads: ‘Because the court erred in approving the report of the referee filed in said cause and rendering judgment in accordance with the report of said referee.’
“Nowhere is it charged in the motion that the court erred in overruling defendants’ exceptions to the referee’s report. What we have quoted from the motion for new trial, could as well have appeared in a motion for new trial where no exceptions had been filed, as in a case where exceptions had been filed. Yet, if no exceptions had been filed, the motion would be unavailing. The question therefore is, can we consider the exceptions to the referee’s report, where the motion for new trial fails to assign the overruling of such exceptions as error? We think not. When we consider that in referee cases the cause is heard nisi upon the report and the exceptions 'filed thereto, and further consider that the litigant must not only except to the action of the trial court in overruling his exceptions to the referee’s report, but must further by his motion for new trial call the court’s attention to the alleged error in overruling such exception, it is clear that there is nothing for review in this case, except the record proper, and'this is without error.”

So that in all those cases, the question was not as to the sufficiency of the assignments in the motion for new trial, but was as to the utter absence of an assignment of error in the motions to cover the assignment of error in this court. The same is true in Carver v. Thornhill, 53 Mo. l. c. 285. In that case Vories, J., said:

“The defendant offered no evidence on his part. The court gave judgment for the plaintiff. The defendant filed a motion for a new trial, and set forth as the grounds upon which said motion was founded, the following :
“1st. Because the said verdict and judgment were against the evidence.
“2nd. Because the verdict and judgment are against the law.
“3rd. Because the verdict and judgment are against the law and the evidence.
“4th. Because the verdict and judgment were rendered for the plaintiffs, when the same should have been for the defendant.
“This motion was also overruled, and the defendant again excepted and has appealed to this court.
“The only objection made in this court to the proceedings and judgment of the Johnson Court of Common Pleas is, that the said court upon the trial of the cause received and heard improper evidence, which ought to have been excluded.
“It will be seen that no such ground of objection was set forth or brought to the attention of the court in the motion filed by the defendant for a new trial. The only grounds of objection set forth in the motion for a new trial are, that the verdict is against the law and the evidence, and is for the wrong party. No question is made in the motion as to the admission or rejection of evidence.”

The same is true as to the case of Sweet v. Maupin, 65 Mo. 65. And it might be said, judging from the arguments in the briefs, that this case is the “Sweet” morsel upon which respondent and one branch of our friends chiefly rely. But there is no substance upon which they can place reliance. There Sherwood, C. J., was not condemning the grounds of the motion as being insufficient, but like all the other cases, he was condemning the motion for new trial because it did not contain an assignment of error which was broad enough to cover the assignment urged in this court.' In that case he says:

“A more serious objection is made to the verdict, which was for $1,197.16, on the ground that the finding is a general one, and not a finding on each count of the petition. For repeated decisions of this court have settled the matter that when the attention of the lower court has been called to a defect of this sort, by appropriate motion, a reversal must occur, if such motion be overruled. But on examination of the motion for new trial, in the present instance, it will be found that, although the ground referred to is distinctly set out in the assignment of errors at general term, yet that the motion does not distinctly specify the ground now urged, the nearest approach to such specifications being the fourth clause, that ‘the verdict of the jury is not warranted by the issues in the case, and is incorrect and informal.’ Our statute expressly requires that motions shall distinctly specify the ground whereon they are based. [2 Wagner’s iStat., p. 1,021, sec. 48.] The object of this is to call the attention of the lower court to the point complained of. For mere matters of exception cannot be noticed here except when ‘expressly decided’ by the lower court. [Id. 106, see. 32; State v. Rucker, 59 Mo. 17; Brady v. Connelly, 52 Mo. 19; Chapman v. White, 52 Mo. 179; Burns v. Whelan, 52 Mo. 520; Carver v. Thornhill, 53 Mo. 283.] We hardly think, in the light of these statutory provisions and decisions, the motion before us specified with sufficient distinctness the ground now relied on, that the verdict did not contain a special finding on each count.” The italics are ours.

We are also cited to St. Joseph v. Life Ins. Co., 183 Mo. l. c. 7, and Shaw v. Goldman, 183 Mo. l. c. 462. These cases and many others in this State announce the rule that if the unconstitutionality of a law or ordinance is relied upon in a case, the provisions of the Constitution alleged to be violated must be specifically pointed out to the trial court, and to this court. That rule in no wise conflicts with our views in this case.

To 'those of us who have grown gray in the practice and administration of the law, it has always been deemed sufficient to make a general' assignment of error in a motion for new trial both as to the reception and exclusion of evidence, and the giving and refusal of instructions. In the very cases relied upon by respondents, we find the motions just as general as the motion at bar,.and this court never said that the assignment of error in the motions were insufficient, but only said that the motions failed to contain an assignment of error (either general or specific) which would cover the assignment urged in the’ appellate court.

In Collier v. Lead Co., 208 Mo. l. c. 256, we said:

“Considering the first objection herein above stated. The motion for a new trial is general in its terms. It is short and we will quote it. The grounds assigned therein are as follows:
“ 'That the 'findings should be for plaintiffs instead of defendants. That the finding is /unsupported by the evidence. That the verdict is for the wrong party. That the court erred in admitting over plaintiffs’ objection illegal, incompetent and improper evidence on the part of the defendants. That under the law and the evidence the findings should have been for the plaintiffs.’
“It is not necessary to review the many cases cited from other jurisdictions. The practice in this State has never, of recent years, required the motion for new trial to point out specifically the evidence excluded or evidence admitted, alleged to have been erroneously excluded or admitted. Under our practice it is sufficient, if at the time of the exclusion or admission of such evidence, proper objections were made and exceptions saved, and this is followed by a general assignment of error in 'this regard in the motion for new trial. Such have been the last expressions of this court, and we see no good reason for a further review of the question.
“In State v. Barrington, 198 Mo. l. c. 76, this court, In Banc, adopted the opinion of Pox, J., in Division, and in doing so, we there said: ‘Upon this complaint the Attorney-General insists that the ground of defendant’s motion for a new trial, that is, that “the court erred in admitting illegal, irrelevant, incompetent and immaterial testimony,” does not cover or exclude the point .of improper cross-examination of defendant. Upon this proposition we will say that, if the objections at the trial were sufficiently specific to notify the trial court at the time of the nature and character of the objections and the reasons for them, the general assignment in the motion for new trial, that the court improperly admitted illegal, incompetent and irrelevant testimony, would properly preserve the point of improper cross-examination for review in this court.’
. “Again, in State v. Noland, 111 Mo. l. c. 492, this court said: ‘The motion for a new trial does not specify the exclusion of this particular evidence, but assigns generally as error that “the court excluded from the jury.proper, competent and'relevant testimony offered by the defendant.” This was sufficient. It has been the practice of this court from its organization. Nothing more definite has ever been required. A different ruling would unsettle the practice and work great injustice. The objections to testimony must- he specific to be available in the appellate courts. These exceptions thus made are saved at the time, and the trial court’s attention specifically called to its rulings, and ,no injustice is done the opposite side or the court by not incumbering the motion for new trial with these matters a second time. We adhere strictly to the rule requiring specific objection to testimony to be made at the time it is offered, but we do not think any good would be subserved by requiring the specific objections to he again repeated in"the motion for a new trial.’
“There,may be cases where the language used, taken apart from the real situation presented by the case, might indicate a different rule, hut when we read these cases thoroughly, the language indulged in by the court will find justification in the particular record, without infringing upon the rule announced in the Noland case, supra.
“We announce again that if objections are made and exceptions saved to the action of the trial court in the admission or exclusion of testimony, then the general assignment in the motion is sufficient.”

In Stid v. Ry. Co., 236 Mo. l. c. 397, this court again said:

“In a case of this moment it behooves the court to pass judgment with full consideration. The motion for new trial is on the blanket order rather than one specific in terms. This practice we have never condemned, but rather encouraged. Such motion need only be in general terms and need not point out specifically the evidence admitted or excluded, or the instructions given or refused. If the motion recites, as does this one, that the court erred £in giving each of the instructions given at the request of the plaintiff,’ the instructions of plaintiff for all points and purposes are here for review.
£ £ So, too, if the motion recites that • the court erred in admitting incompetent evidence for plaintiff and also erred in refusing to admit competent evidence for the defendant, such questions are for review in the appellate court.”

Nor is there any injustice to a trial court in applying this rule as to instructions as well as to evidence. The giving of an instruction is the act of the court. The court is declaring the law of the case. The parties cannot do that. They may suggest to the court what they think to be the law, but the court, with his knowledge of law, declares what the law of the case is. It is the product of the .mind of the court, and when the motion for a new trial charges that the court erred as to the giving or refusing of instructions, it but calls attention to the things which the court has {done or has failed to do. It sufficiently advises the court that he has erred in his judgment of the law of the case, and it is not necessary to explain in such motion why the court has thus erred. Of course the motion might recite that the court erred in giving a certain instruction, because the giving of it, under the facts of the case, was error under the law as declared in appellate opinions, citing the same, but this has never been the idea of a motion for new trial in these many years, since the adoption of the Code of Civil Procedure.

To sustain the contention of counsel for defendant would enable us to clear our docket of cases within a very short period, but the merits of the cases would be undetermined. We cannot lend our judgment to views so radical. To use the language of Gantt, P. J., in State v. Noland, 111 Mo. l. c. 492:

“The motion for a new trial does not specify the exclusion of this particular evidence, but assigns generally as error that ‘the court excluded from the jury proper, competent and relevant testimony offered by the defendant.’ This was sufficient. It has been the practice of this court from, its organization. Nothing more definite has ever been required. A different ruling woidd unsettle the practice and work great injustice.” The italics are ours.

We only desire to substitute “the giving and refusing of instructions” for the exclusion of evidence in the excerpt above.

Under the law of this State the motion for a new trial in the case at bar is sufficient in form to bring before this court for review all the instructions given and all the instructions refused. We desire to reiterate what we said in the Stid case, supra.

TV. This brings us to the merits of this case, and to our minds it is one of easy disposition. As stated, the ac^011 one grounded upon the relation of masfer and servant. The thing charged as being productive of the injury to plaintiff is, that “said train was suddenly'started .forward with a violent and unusual jerk, whereby plaintiff was thrown down and run over by said train, and his left leg destroyed,” etc.

Plaintiff charges that his injury was due to a “violent and unusual jerk,” and the evidence fails to show that what happened was more than usually occurs in the operation of freight trains. In other words, the negligent act charged was not proven. The trial court so declared, for by its instruction C-l given of its own motion, it is said: “The court instructs the jury that there is not sufficient evidence to warrant the jury in finding that the jerk, following the go-ahead signal, was an unusual jerk.”

The evidence fully justifies the giving of this instruction. Plaintiff knew he was on a freight train and he knew that it was not going to stop, hut would only slacken up and start up again. Unless something more than the usual jerk occurred there was no negligence upon the part of the defendant. In other words, if the thing which happened was not unusual in the operation of freight trains there was no negligence. This doctrine is so fully discussed in our eases that a citation of two or three will suffice. [Wait v. Railroad, 165 Mo. 612; Hedrick v. Railroad, 195 Mo. 104.]

The plaintiff having ■ planted his right to recovery upon “a violent and unusual jerk” must show such or fail. He fails to show the act of negligence pleaded, and the demurrer to the evidence offered by defendant should have been sustained. The rule as between passenger and carrier can not he invoked because plaintiff has not so sued.

The judgment nisi is reversed.

Woodson, Faris and Blair, JJ., concur in paragraphs three and four, and in the result; Revelle, J., concurs in paragraph 4, and in the result, and concurs in the separate concurring opinion of Bond, J.; Bond, J., concurs in separate opinion; Walker, J., dissents in separate opinion.

BOND, J.

(concurring) — I am unable to agree to the learned discussion in the majority opinion to the effect that section 1841, Eevised Statutes 1909, has no reference to the contents of a motion for a new trial. This section, in express terms, is applicable to “all motions” and requires that they “shall be accompanied by written specifications of the reasons upon which they are founded,” etc., and I do not think a statute so all-embracing in its language can be logically limited only to certain motions filed during the trial of a law-suit which are addressed to pleadings. In judging the sufficiency of motions for new trial by the rule fixed by that statute, full effect should be given to it as it has been interpreted and construed in the unbroken line of precedents cited in the concluding portion of the second paragraph of the learned majority opinion. These have held, and such has been the consensus of opinion at the bar, that the “specification of reasons” in the motion for new trial in the- present case was sufficient to bring up for review the action of the court in its refusal of the instructions requested by respondent for a peremptory verdict or other instructions requested by it, and, also, in the giving of instructions at the request of plaintiff. Defendant excepted at the time in both instances to the action of the court, and the reference shown in its motion for new trial to the adverse ruling's of the court in respect of such instructions, was a sufficient compliance, under the decisions of this court, with the terms of the statute requiring “a written specification of reasons.”

Hence I concur only in the result reached in the learned majority opinion.

Revelle, J., concurs in this opinion.

WALKED, J.

(dissenting) — I concur in the majority opinion in its holding that the plaintiff cannot base his cause of action upon one theory, try the issue thereon, and recover on appeal upon another and a different theory as to the relationship existing between him and the defendant at the time of the accident.

I do not concur in the holding that section 1841, Devised Statutes 1909, should not be construed and applied according to its unmistakable meaning. The language -of this section is clear, definite and conclusive. There has heretofore never been a question as to its- being applicable to motions for a new trial. Its history amply attests the fact that it is so applicable. As originally enacted (R. S. 1835, p. 469) it read as follows:

“All motions for new trials and in arrest of judgment shall be made within four days after the trial, if the term shall so long continue, and if not, then before the end of the term, and every such motion shall be accompanied by a written specification of the reasons upon which it is founded.”

In the Revision of 1845, which incidentally may be said to be one of the best revisions that has been made of our laws, in which the Code o£ Civil Procedure was materially amplified and the phraseology of many of the sections changed, what is now section 1841, Revised Statutes 1909, was divided into two sections, which read as follows:

“Sec. 1. All motions for new trials and in arrest of judgment shall be made within four days after the trial, if the term shall continue so long, and if not, then before the end of the term.
‘ Sec. 2. Every such motion shall be accompanied by a written specification of the reasons upon which it is founded.” [R. S. 1845, p. 829.]

In the revision of 1855 the code was still further amplified and many arbitrary changes were made in the arrangement of the articles and sections. Section 1, in regard to motions for new trials, in the Revision of 1845, appears in the Revision of 1855 as section 6 of article 13 of chapter 128, (2 R. S. 1855, p. 1286), and is in the same language as in the former revision; while section 2 of the Revision of 1845 above quoted is designated as section 27 of article 6 of chapter 128 of the Revision of 1855, which is entitled: “In Relation to Pleadings and the Rules of Pleadings,” and reads as follows:

“Sec. 27. All motions shall be accompanied by a written specification of the reasons upon which they are founded; and no reason not so specified shall be urged in support of the motion.” [R. S. 1855, p. 1235.]

It will be seen that the portion of this section following the word “founded” was added in this revision. The phraseology and setting of the section as it appears here have not been changed in subsequent revisions. That the section has reference in a general way to pleading, is true, because a motion is none the less a part of the pleadings in the case than any other paper filed therein [Bliss, Code PI. (3'Ed.), sec. 135] except as to the distinguishing rule which prevents its being incorporated into the record proper in making up a transcript to perfect an appeal.- The conclusion therefore reasonably follows that the section has reference to all motions, filed for whatever purpose in a suit. It is only by invoking the aid of judicial legislation that the provisions of the section can be reasonably limited to motions other than those for a new trial. It must be admittéd that many motions general in their averments, of the character of the one under review, have been held sufficient by this court, but this has been due to loose construction and without regard to the plain meaning of the statute, .the purpose it was intended to effect, and in disregard of its origin. In this connection it is not improper to -say that the mere arbitrary arrangement of a section of the code does not afford a cardinal reason for its interpretation. It is at best but a matter of - minor consideration. The words, the text, the subject-matter and the purpose intended to be effected by the section should be first considered in ascertaining what it means. These having been considered, the section should be construed according to its plain terms without extrinsic aid. The correctness of this conclusion has been attested wherever the origin and purpose of the section has received considerate attention; where it has not received this attention the result has been to render motions for new trials mere drag nets to catch and hold general assignments of error. Under this loose construction, after the matter to be subsequently complained of has passed without emphasis beyond the purview of the trial court, the appellant is enabled, from the omnium gatherum called a motion for a new trial, to pick and choose such, specific grounds of error as then seem most pregnant with possibilities of reversal, with its consequent delay and possible denial of justice. A construction of the section fraught with such results was not contemplated'by the framers of our code. I therefore dissent from the majority opinion in so far as it holds that a motion for a new trial should not, with brief hut reasonable particularity, specify the grounds upon-which it is based.


source: Caselaw Access Project

author: REVELLE, J.

license: Public Domain

text:
    MERCANTILE TRUST COMPANY v. FRANK W. SCHRAMM et al., President and Members of Board of Equalization of City of St. Louis.
    In Banc,
    December 30, 1916.
    1. TAXATION: Assessment: Changed by City Board. The Board of Equalization of the city of St. Louis has no power to place a valuation upon property within said city which is different from the valuation placed by the State Board of Equalization upon all property of the same kind and class throughout the State. Where the city assessor valued corporate company bank stock within the city of St. Louis at $65,738,690, and the State Board of Equalization equalized the assessments of banks throughout the State and fixed the valuation at fifty per cent of the aggregate returned by the various assessor’s, thereby placing a valuation of $32,688,450 on the stock of banks in St. Louis, the Board of Equalization of that city has no power to place the aggregate assessment against said banks at $46,017,083; or at seventy per cent of the original valuation certified by the assessor.
    2. -: Uniformity. The primary and dominant idea of the Constitution is that all property of the same class and value shall bear the same burden. Uniformity of burden is the thing that it attempts to accomplish. That principle requires that all property of the same class within the territorial limits of the authority levying the tax shall be taxed at the same rate. A State tax must be apportioned uniformly throughout the State.
    3. -: -: One Standard of Valuation. There is no provision of law authorizing different standards of valuation in different counties. The law clearly and expressly requires that for the purpose of valuation all property, in the State, regardless of where situate, shall be valued by the same standard.
    4. -: -: Tower of State Board: Increase and Reduction of Values: By Classes. In order that all property throughout the State may be assessed at its true value, the State Board of Equalization is given power to adjust and equalize the value of property among the several counties, and to do that it is required to add to the valuation of each class of property of each county which it believes is below its real value such a per cent as will bring its valuation to its true value, .-and to deduct from the valuation of each class of property of each county which it believes is valued above its real value such a per cent as will reduce the valuation to the true value. The State Board of Equalization was created primarily to secure and guarantee uniformity and equality in the burdens of taxation throughout the State.
    5. -: - — : Increase by County Board. A county board of equalization cannot either reduce or increase the valuation of a class of property within the county fixed by the State Board of Equalization.
    6. -: -: -: Section 11403. The proviso in Sec. 11403, R. S. 1909, declaring “that such board shall not reduce the valuation of the real or personal property of a county below the value thereof as fixed by the State Board of Equalization,” does not authorize the county board to change and increase the valuation fixed by the State board on banking corporations, but was an admonition to the county -board that in equalizing One piece of property with another they should so proceed that the county’s aggregate would not fall below the value fixed by the state board; it was intended to apply to the relations between the state board and local boards. It does not permit a county board to increase the assessment upon a certain class of property fixed by the state board.
    7. -: -: Unconstitutional Act: Banks. The General Assembly could not in- terms provide that the property of banks in the city of St. Louis should be assessed'at a value different from the property of banks in other parts of the State, nor could the State Board of Equalization assess the property of banks in St. Louis at a value different from that placed upon banks in other parts of the State; and what cannot be done directly cannot be done through indirection — by a county board, for instance.

      Certiorari.

    Record quashed,

      Judson, Green &-Henry for petitioner.
    (1) Under the Constitution and statutes, the valuation by the State Board of Equalization of any class of property is final and controlling and a fortiori is binding upon the local assessing authorities. R. S. 1909, secs. 11403, 11408, 11412; State ex rel v. Vaile, 122 Mo. 33; State ex rel. v. Adams, 172 Mo. 1. (2) The contention that the valuation at “true value” by the state board, prevents the lowering, but does not prevent the advance, of such valuation by a local board, is wholly untenable, and the statute so construed would deny the equal protection of the laws. R. S. 1909, sec. 11402. (3) The control by state board of local boards and assessors is uniformly sustained by the judicial precedents and authorities. Raymong v. Chicago Union T. Co., 207 U. S. 35; Consolidated 'Min. Co. v. Arizona, 206 U. S. 474; Hacker v. Howe, 72 Neb. 385; Tax Commissioners v. Quinn, 125 Mich. 128; People v. Supervisors, 59 Cal. 321; 37 Cye. 1108; Russell v. Carlyle, 8 S. W. 14; 1 Cooley on Taxation (3 Ed.), pp. 784-786; State ex rel. v. Vaile, 122 Mo. 33. (4) Classification of property for taxation is expressly recognized and authorized by the Constitution of Missouri. Constitution, art. 10, sec. 3; R. S. 1909, sec. 11402; Masonic Aid Assn. v. "Waddill, 138 Mo. 628. (5) Classification of banking corporations was just and reasonable. The court will take judicial notice of the conduct and public relation of banking corporations. Henry County v. Salmon, 201 Mo. 136; Tel. Co. v. Tel. Co., 236 Mo. 115; State ex rel. v. Mc-Quillan, 246 Mo. 535. (a) Banking corporations are quasi-public. Nothing is or can be concealed, (b) They are the only class of property wherein the names and holdings of the taxpayers themselves are submitted to the state board, (c) A wise public policy is subserved in that banking corporations of different towns compete, as the public interest requires, (d) The separate classification of banks for taxation is made necessary by the peculiar relation of the national banks to the state banks under the Federal law. (6) The order of the St. Louis Board, making valuation of banking property higher than property of the same class in the State, was an unlawful discrimination. Constitution, art. 10, sec. 3; Masonic Aid Assn. v. Waddill, 138 Mo. 628; St. Louis v. Spiegel, 75 Mo. 145; St. Louis v. Bowler, 94 Mo. 630.

      Charles H. Danes and Truman P. Young for respondents.
    (1) Under the statutes the State Board of Equalization fixes a minimum of value of property in each county.; it does not fix the exact value. This is true whether we consider all the property in a county or any one of the various classes of property defined by Sec. 11412, R. S. 1909. Secs. 11403, 11414, R. S. 1909. This purpose is apparent throughout the provisions of articles 3 and 4, chapter 117, being sections 11402 to 11414. Mining Co. v. Arizona, 206 U. S. 474. (2) The assessment of the petitioners did not violate the constitutional provisions of the State requiring uniformity of taxation. We have found no cases presenting a state of facts analogous to that presented • here. We cite, however, the following as bearing rather remotely upon the meaning of the requirement of uniformity: State ex rel. v. Field, 119 Mo. 613; State v. Bengsch, 170 Mo. 81; State v. Switzler, 143 Mo. 289; Elting v. Hickman, 172 Mo. 234; State v. Moody,. 202 Mo. 120; State ex rel. v. Henderson, 160 Mo. 190; Kansas City v. Shipple, 136 Mo. 475.
   REVELLE, J.

Respondents are members of the St. Louis Board of Equalization and as such have the same general power of reviewing local assessments in the city of St. Louis as have county boards of equalization in their respective counties.

It appears from the record that the assessor of the city of St. Louis, as required by section 11357, submitted to the State Board of Equalization an abstract of the taxable property in the city of St. Louis and its valuation, including, among other things, “corporate company’s bank stock,” at a total valuation of that class of property in the city of St. Louis of $65,738,690. The state board, having received such abstracts and reports, proceeded to equalize the assessments of hanks throughout the State and fixed such valuation at fifty per cent, of the aggregate returned by the various assessors, including that of the city of St. Louis. This assessment was certified by the State Auditor to the city assessor of St. Louis and the assessors of the counties, being dated April '!, 1916,. and shows that the aggregate valuation of the stock in banks in the city of St. Louis was placed at $32,688,450, or fifty per cent, of the aggregate returned by the city assessor. This was the uniform per cent, of the returned aggregates made by the various assessors of the State. Thereafter respondents, as members of the city board of equalization, placed the aggregate assessment against such banks at $46,017,083, which was exactly seventy per cent, of the original valuation certified to the state board by the city assessor, or twenty per cent, more than the valuation fixed by the state board.

Several cases involving the question here presented are pending, >•,but by stipulation they are submitted on one record, all involving the same question. There is no dispute as to the controlling facts.

Our'’law provides a complete plan and scheme for the assessment and collection of taxes, an adequate means by which the burden, primarily borne by the State and its sub-divisions, is transferred to the citizen. Tim prime and dominant idea of the scheme is furnished by the Constitution' and is that all property of the same class and value shall hear the same burden. "While it is a matter of common experience that absolute equality in the imposition of taxes is not attainable, we nevertheless findlan aim and intention on the part of our lawmakers to approximate to the idea of absolute equality as closely as the nature of the subject and the necessities of practical administration will permit. It is the uniformity of burden that the principle of uniformity in taxation is intended to accomplish, and whatever tends to foil this incurs the law’s wrath. Discrimination, by whatever means induced, whether by different rates on the same values or the same rates on different values, seems within the inhibition. The State being subdivided, practical administration and the necessities of the case require that different rates be charged in different subdivisions in order to meet different local needs and conditions, and constitutional and statutory provisions for such different local rates are made. The principle of uniformity, however, requires that all property of the same class within the territorial limits of the authority levying the tax be taxed at the same rate. A State tax must be apportioned uniformly throughout the State; a county tax throughout the county; and a municipal tax throughout the municipality. While provisions are made for different rates in different sub-divisioñs and for local purposes, no provisions are- to be found anywhere which authorize different standards or bases of valuation. It is evidently intended that the difference in the various local conditions shall be cared for by a difference -in the rate and not otherwise.

The law clearly and expressly requires that for the purpose of valuation all property in the State, regardless of where situate, shall be dealt with in the same manner. For this purpose of valuation, the law decrees uniformity and one standard throughout the State, and this without any regard whatever to local needs or differences in local conditions, for it ordains that all property, wherever situate, shall be assessed at its true value. In order to effectuate this command a State Board of Equalization has been provided, and its arm of authority extended to all parts of the State. It is a creature of the Constitution and by that instrument enjoined to adjust and equalize the value of property among the several counties of the State, and perform such other duties as may be prescribed by law. The law has prescribed, among other things, that this board.shall equalize the valuation of each class of property among the respective counties in the following manner :

“First — It shall add to the valuation of each class of property, real or personal, of each county which it believes to he valued below its real value in money such per centum as will increase the same in each case to its true value.
“Second — It shall deduct from the valuation of each class of the property, real or personal, of each county which it believes to he valued above its real value in money such per centum as will reduce the same in each case to its true value.” [R. S. 1909, sec. 11412.]

It is these provisions, in the light of those in pari materia, that we are called upon to construe. It is not questioned that, under the provisions of this section not quoted, the State Board of Equalization can equalize according to classes as it did in the instant matter. This power was expressly confirmed by the amendment of 1899, prior to which time its power was limited to equalizing among the different counties and- not between classes. [State ex rel. v. Vaile, 122 Mo. 33.] Respondents concede that under this section the state board has the exclusive power to determine the minimum taxable value, and that no county or city hoard can reduce such minimum, hut urge that such local hoards can increase the same and make the aggregate value of any class greater, if they deem proper. In this they plant themselves on what is contained in sections 11403 and .11414, Revised Statutes 1909. Section *11403, after providing that county hoards shall equalize the valuation of all' taxable property within their respective counties so that the same may he entered on the tax books at its true value, contains the following:

“Provided that such hoard shall not reduce the valuation of the real or personal property of the county below the value thereof as fixed by said State Board of Equalization. ’ ’

Section 11414 provides:

“And it shall be the duty of the State Auditor to require of clerks of the several county courts of this State to keep up the aggregate valuation of; real and personal property in their respective counties for those years in which no State Board of Equalization is held to the aggregate amount fixed by the last State Board of Equalization.”

Recognizing that the object to be accomplished by a statute is of prime consideration in its construction, respondents say that the chief purpose of the creation and maintenance of the State Board of Equalization was and is to enable the State to make sure of the collection of at least as much from each county as it deems just. This argument, when analyzed, minhnizes .the citizen and maximizes the government, and this is antagonistic to our governmental system in which the people are the sovereigns and the government but their servant. The State is more concerned with the welfare and equality of its citizens and in the promotion thereof than with the mere incidents to their accomplishment, such as is public money.

It must be borne in mind that state, county and municipal taxes are all based upon the same assessment and upon one and the same valuation. This is one reason for demanding equality and uniformity throughout the State in the matter of valuation. If property of the same class is assessed in one county at fifty per cent, of fits value, and in another at seventy per cent, thereof, the State collects for its own use, as distinguished from what is collected for local purposes, a greater amount from a citizen in one of its parts than fijom another in a different part, although their property is of the same class and value and is receiving the same public benefits and protection. This produces favoritism and destroys the cherished principle of equality. Instead of' the state board being primarily created for the purpose of exacting the State’s pound of flesh, we are inclined toward the more beneficent view that it was to secure and guarantee uniformity and equality in the burdens which the maintenance of a state render necessary and which society imposes.

The construction contended for by respondents would break down this principle and destroy its benign purpose. It would place the State in the unenviable position of having to exact and receive from certain of its people more than its authorized representatives had found and solemnly declared to be just, right and necessary — this because a state tax on the valuation in excess of that found by the state board to be true and just would be collected, and to this extent the tax would be not only unjust and unequal, but also, under the law, would be deemed unnecessary for public purposes.

The power of taxation has been jealously hedged about and limited to the public needs; it rests upon necessity and is accordingly restricted. In the absence of clear and express provisions we would not hold that any scheme of taxation was intended or permitted to collect more than was necessary for the public good. The rate fixed by the people and the valuation determined by the state board on the property designated in section 11357 decide the question of what is necessary.

This much is practically admitted by respondents through their concession that the state board alone can fix the minimum taxable value. Section 11414, supra, is of no aid to respondents since the mere reading thereof discloses that it is applicable only to cases and times when the state board failed to act; nor do we think that the proviso contained in section 11403, supra, can be consistently construed so as: to authorize the local board to change and increase the valuation fixed by the state board on banking corporations. This proviso was enacted at the same time that the original statute authorizing the state board to equalize property among the several counties was passed. At that time, as heretofore stated, the state board dealt only with one county’s assessment as compared with another county’s, and not with classes as it has since 1899. The county boards under the original and present acts are authorized to equalize the value of each piece of property in their respective counties with other property so located.

"When the proviso in question is considered in the light of all the laws relating to the subject and the purpose which they were intended to accomplish, we are of the opinion that it was but an admonition to the local boards that in equalizing one piece of property with another they should so proceed that the county’s aggregate would not fall below the value fixed by the State Board of Equalization, and that it was not intended to apply to the relations between the State and local boards.

As clearly indicating, that the functions of the local board are purely ministerial after the state board has acted, we find section 11408, which provides that when the report of the state board is not received at or during the session of the county board, the county clerk shall adjust the tax books according to such report when the same is received.' It could not be contended that the county clerk in such a case would have any authority to change the valuation fixed by the state board, and it is hardly reasonable to assume that the Legislature intended that the conclusiveness of the state board’s action should depend upon whether its report was received at a particular time.

Section 11412 supra expressly authorizes the state board to not only increase the assessments made by the local authorities, but also empowers it in similar language to reduce the same to its true value. If its action in this respect were not held to be conclusive, clashes and conflicts would be inevitable and confusion and chaos would come out of what was intended for order.

Cases from other jurisdictions are cited, but they are of little value here, other than as tending to show that when a constitution provides for uniformity in taxation it is the general public policy, where the property located in different sections is assessed by different boards, to provide a superior board for equalization between them "and. that the decision of such board is made final. In fact, it has been said that under such circumstances the constitutional requirements of uniformity impose on the State the duty of adequately providing for such equalization. [Railroad and Telephone Co. v. Board of Equalizers, 85 Fed. 302.] We have no doubt that had the Legislature in terms undertaken to provide that the property of banking corporations in the city of St. Louis should he assessed at a value different from the property of hanking corporations in other parts of the State, its action could not he sustained. We are equally well satisfied that had the State Board of Equalization undertaken to assess the property of hanking corporations in the city of St. Louis at a value different from that placed* on the hanking corporations in other parts of the State, its action would likewise he invalid. That which cannot be done directly cannot he done through indirection, and if a method is provided which results in unjust discrimination, the result cannot he upheld. In Railroad & Telephone Co. v. Board of Equalizers, supra, it is said: “This is equally so whether such a result is due to erroneous action by the hoard or to defect in the legislation, in not requiring equalization, and furnishing the means whereby this might be made real and effective.” In that ease the court further said: “It may be as well to say in this connection that it is now established that the constitutional requirement of uniformity in taxation applies to the mode of assessment, as well as to the rate of levy, and the Constitution may be violated in a lack of just proportion in the value at which property is assessed for taxation quite as much as in the rate or percentage at which the tax is actually laid on the assessed value.”

These observations are indulged in, not for the purpose of declaring any of the sections heretofore cited unconstitutional, but as throwing light upon the construction which should be given them. It is our opinion that the Legislature has attempted to provide a method calculated to secure constitutional uniformity and that our decisions should be toward upholding that method and end.

We are therefore of the opinion- that the respondents have no authority to increase or change the value and amount certified to them by the state board and that their record should be quashed. It is so ordered.

All • concur, except Bond, J., who dissents, and Faris, J., not sitting.


author: GRAVES, C. J.

text:
    THE STATE ex rel. I. N. EVARD v. CORNELIUS ROACH, Secretary of State.
    In Banc,
    December 30, 1916.
    1. STATE SUPERINTENDENT OF SCHOOLS: Vacancy in Office. If a vacancy occurs in the office of State Superintendent of Public Schools it is to be filled by appointment by the Governor, and such appointee holds for the residue of the term. Even though • such vacancy occurs in the year in which a Presidential election is held and prior thereto, there is neither constitutional nor statutory authority for filling it by election for the remainder of the term at such Presidential election.
    2. -: Constitutional Office: Vacancy: Meaning of Next General Election. The office of State Superintendent of Public Schools is a constitutional office, created by the Constitution, its term fixed thereby, and the times at which elections are to be held to fill the office are likewise fixed by it. The Constitution in creating seven executive offices, in section 2 of article 5, and declaring that their terms shall be four years “from the second Monday in January after their election,” that six of them should be elected at Presidential elections and that “the Superintendent, of Public Schools shall be elected at the general election in the year 1878, and every four years thereafter,” and in declaring in section 11 of article 5 that “when any office shall become vacant, the Governor, unless otherwise provided by law, shall appoint a person to fill such vacancy, who shall continue in office until a successor shall have been duly elected or appointed and qualified according to law,” meant that, as to constitutional offices, the appointment to fill a vacancy was to be for the residue of the term; and the statute (Sec. 10918, R. S. 1909) in declaring that in case of a vacancy in the office of Superintendent of Public Schools “the Governor shall fill the same by appointment, who shall hold his office until the next general election,” must he harmonized with these constitutional provisions, and when this is done the words “next general election” used in the statutes mean the next general election for the election of Superintendent of Public Schools. This view is emphasized by the legislative interpretation of said constitutional provisions’ (Secs. 11803 and 11805, R. S. 1909) and by constitutional interpretation as well (Sec. 16, art. 5).
    3. -: Vacancy After Primary Election. Held, by GRAVES, C. J., with whom BOND, J., concurs, that where a vacancy occurs after a primary election in an office to be filled at the next succeeding general election, or within sixty days prior to such primary, section 5870, Revised Statutes 1909, authorizing a party committee to fill “vacancies occurring aiter the holding of a primary,” does not apply; but when all the statutes governing general and primary elections are read together, as they should be, notwithstanding the primary election laws are later enactments, it is clear that section 5870 was meant to apply only to an office for which there could have legally been a candidate at such primary.
    Mandamus.
    Writ denied.

      Spencer & Donnell for relator.

      John T. Barher, Attorney-General, for respondent.
   GRAVES, C. J.

The facts of this case are few and simple. In November, 1914, at the general state election for that year, Howard A. Gass was duly elected Superintendent of Public Schools for the State of Missouri, for the term of four years. On September 18, 1916, Prof. Gass died. On September 27, 1916, the Republican State Committee selected and nominated (as it is alleged) the relator, I. N. Evrard, as the candidate of the Republican party for that office, which office such committee thought was vacant and to be filled by election at the general state election November 7, 1916. On October 14, 1916, the relator, I. N. Evrard, presented his certificate of nomination by such, party committee to respondent, the Secretary of State, and said respondent refused to file the same, for the reason that (as he deemed it) there was no. vacancy in said office to be filled at the said election of November 7, 1916.

Upon such refusal the relator applied for our writ of mandamus to compel the respondent to place his name upon the Republican ticket as a candidate for such office at the general election on November 7, 1916. Formal issuance of our alternative writ was waived and the petition taken as and for such writ. To this petition respondent filed return, and thereupon relator moved (by written motion) for judgment upon the pleadings. The questions were purely questions of law and this court after due consideration of the same overruled the motion for judgment filed by relator and refused the peremptory writ of mandamus in a judgment duly entered, and assigned the cause for an opinion later in accordance with such judgment. To me has fallen the lot of writing the opinion.

I. I was, and am now, of the opinion that our judgment denying to relator our writ of mandamus can be sustained upon two grounds. I know that a majority of my brothers took a contrary view as to one ground in the case of State ex rel. Hagerman v. Drabelle, 191 S. W. 691. I, with one other, dissented in that case, and the assignment in this case gives me opportunity to express the views that I entertained in the Hagerman case, supra, although they be only the- views of myself and my brother Bond, in this case. We need not discuss them at length, because the majority has ruled against them, and we have no idea of changing that ruling.

As in the Hagerman case we are of the opinion that there was no vacancy in the office of Superintendent of Public Schools to be filled at the election of November 7, 1916, because Professor Glass died at a time when no legal nomination could be made for that office. The primary laws of the State require all candidates for public office (such as here involved, and such as was involved in the Hagerman case, supra) to be nominated at a general primary election. Under the law this primary for 1916. was on August 1st. To get on the primary ballot the aspirants had to file their declarations sixty days prior to that date. The State has assumed absolute charge of party nominations in the enactment of the State primary law. The propriety of this is not for our consideration, but' it is material in determining what is meant by “the next succeeding election” in those statutes which provide that the appointee to a vacant office shall only hold until such succeeding election, or until his suc: cessor is elected at such succeeding election. We must consider the laws with reference to the primary and the general election laws and the laws as to vacancies together, and from them all determine what is meant by the term “next general election” in section 1Q918, Revised Statutes 1909, which section reads:

“There shall be elected by the qualified voters of this State, at the next general election for state and county officers, and every four years thereafter, a State superintendent of public schools, who shall enter upon the discharge of his duties on the second Monday of January next following his election, and hold his office for the term of four years and until his successor is elected and qualified. The election of said superintendent and the returns thereof shall be the same in all respects as provided for the election of other state officers; and in case of vacancy occurring in said office, by death, resignation or otherwise, the Governor shall fill the same by appointment, who shall hold his office until the next general election.”.

Our contention is that if all these laws (primary laws, general election laws and vacancy laws) had been enacted at one time and in one bill covering the general subject, then there would be no question that the term “next general election” as used in section 10918 would mean the next general election at which all the machinery of elections could be called into play, including the primary laws. And we can see no difference in the construction to be given simply because the primary law was enacted at a later date. The laws still must be construed together and as if enacted at one and the same time. With this construction in the instant case, and in Hagerman’s case, supra, “the next general election” would not be the general election in 1916 but would be the general election of 1918. This because the death occurred after the election machinery had been put in operation and because on June 1, 1916 (sixty days prior to August 1, 1916) there was no vacancy in the office. And because the Legislature has made no provision for a contingency of the character involved here, and it is not for us to write it into the law.

We are cited, however, to section 5870, which reads:

“Vacancies occurring after the holding of any primary or where no person shall offer himself as a candidate before such primary, shall be filled by the party committee of the -district, county or State, as the case may be q Provided, however, that no name shall be allowed on any ticket until ,the required fee shall have been paid. ’ ’

To our minds this section does not solve the situation. It is true this is the section relied upon as the authority for the Republican State Committee to place relator’s name on the Republican ticket, but it does not reach his case. Without this section there is no authority for relator’s nomination by the Republican State Committee. The office of Superintendent of Public Schools was not (at the date of the primary, August 1, 1916, or sixty days prior thereto, June 1, 1916) an office to be filled at the November election in 1916. It was not an office on the tickets nominated at that primary. It was not an office for which a nomination could have been made at that primary, or for which aspirants could have filed sixty days prior thereto.

The word “Vacancies” used in this statute has reference only to vacancies upon the tickets nominated August 1st, and to no other vacancies. There was no vacancy upon any ticket nominated August 1, 1916, and this part of the statute affords no authority for relator’s nomination. There was no vacancy upon the ticket for this office because this office at the date of the primary was not an office to be filled and therefore could not have been upon such primary ticket.

Nor does the phrase in said statute “or where no person shall offer himself as a candidate for such primary” in any wise aid relator here. That clause has reference (and reference solely) to an office for which candidates could have run at the August primary, but for which they did not run. In this case there was no such office for which candidates could have run in the August primary, nor for which they could have filed sixty days prior thereto. Had the office of Superintendent of Pub-Schools been vacant June 1,1916,. then this statute would apply, but it does not apply in this case. Had there been a vacancy in this office on June 1, 1916, then “the next general election” would have been the election of November 7, 1916, because all of the election machinery of the State could have been invoked. But the facts of" the instant case do not bring it within the supposed case.

It is clear that section 5870 has no application and did not authorize the committee to act. Nothing in State ex rel. v. Kortjohn, 246 Mo. 34, contravenes these views. In that case we were dealing (1) with an office for which a nomination could have been made at the primary in August and for which candidates could have filed sixty days prior thereto, and (2) with newly organized parties. • "We would not gainsay a single word uttered in that opinion, but the facts of that case and the law discussed in that case have no application here.

These views explain the dissent in Hagerman’s case, and in our humble judgment afford at least one reason for our judgment in this case.

II. Secondly, the judgment denying relator our writ is most certainly sustained by another view of the law. The office involved is one of the executive offices of the State provided for in the Constitution. In °^er words, it is what may properly be called a constitutional office. Not only is the office created by the Constitution, but the term is fixed by that instrument, and the times at which elections for that office are held are likewise fixed by the Constitution. No law of the State can change the term thus fixed, neither can a law of the State change the times at which elections for such office can be held. Any such law would be unconstitutional and void.

Section 2, article 5, of our Constitution reads:

“The term of office of the Governor, Lieutenant-Governor, Secretary of State, State Auditor, State Treasurer, Attorney-General and Superintendent of Public Schools shall be four years from the second Monday in January after their election, and until their successors are elected and qualified; and the Governor and State Treasurer shall be ineligible to re-election as their own successors. At the general election to be held in the year one thousand eight hundred and seventy-six, and every four.years thereafter, all of such officers, except the Superintendent of Public Schools, shall be elected, and the Superintendent'of Public Schools shall be elected at ■the general' election in the year one thousand eight hundred and seventy-eight, and every four years thereafter.” (The italics are-ours).

The Constitution thus not only names the date for the first election for such office but for all other elections for such office. It must be a noticeable fact that the Constitution-makers were' dealing with seven offices and saw fit to group them in two groups, i. e., six in one group and the seventh one in another group. For six of these offices the Presidential election years were selected as the • years for filling those offices by election. The office involved here was placed in a group to itself and was assigned a time when the rancor of partisan politics would not be so great. The Constitution-makers must have had a purpose in this clearly defined grouping of state officers. Something must have suggested the separate election for Superintendent of Public Schools, and when the high character of the office is considered the reason is apparent. The desire was to take this office, so far as possible out of the machinations of partisan politics. The public schools were a sacred institution — too sacred, as our forefathers thought, to be dragged into the mire of pure partisan politics. To our mind it was for this reason that the makers of the Constitution not only fixed the date of the first election for the office, but the dates for each subsequent election.

Nor does the constitutional provision as to vacancies change the time for the elections for such office. The Constitutional provision as to vacancies is section 11 of article 5 which reads:

“.When any office shall .become vacant, the Governor, unless otherwise provided by law, shall appoint a person to fill such vacancy, who shall continue in office until a successor shall have been duly elected or appointed and qualified according to law.”

The term “according to law” includes constitutional provisions, and this section will harmonize with section 2, article 5, supra, of the Constitution, and will likewise harmonize with the construction we have given said section 2, article 5, as to the dates for elections in this office.

Relator relies, however, on section 10918, Revised Statutes 1909, which section we have quoted in full above. If this section is to be given a literal construction in so far as it relates to the time to which an appointee can hold the office, it would contravene section 2, article 5, of the Constitution, supra. Whilst this constitutional provision has not been up for consideration by the courts, it has been several times construed by the Legislature. Thus in two of the constitutional offices mentioned in said section 2 of article 5 of the Constitution, the Legislature, in section 11803, Revised Statutes 1909, has said:

“When a vacancy occurs in either the office of State Auditor or State Treasurer, the Governor shall immediately appoint an Auditor or Treasurer to fill such vacancy for the residue of the term in which the vacancy occurred, and until his successor is elected or appointed, commissioned and qualified.”

The constitutional provision as to the dates of election. for those offices is in the same words as the provision with reference to the office here involved. In other words, it fixes the date for the first election and for all succeeding elections. In this statute, section 10803, the lawmakers recognize the construction which we have given to the Constitution by providing that the appointees shall hold for the “residue of the term.”

In case of a vacancy in the office of Attorney-General the Legislature has again emphasized the fact that such body viewed the Constitution as we have viewed it. By section 1043, it is said:

“If any vacancy shall happen from any cause in the office of the Attorney-General, circuit attorney, prosecuting attorney or assistant prosecuting attorney, the Governor, upon being satisfied that such vacancy exists, shall appoint some competent person to fill the same until the next regular election for Attorney-General, prosecuting attorney or assistant prosecuting attorney, as the case may be.” (Again the italics are ours.)

The Legislature could only have had in view the provisions of section 2 of article 5 of the Constitution in so far as the office of Attorney-General is concerned. By the language used they recognize that there was a fixed date for such elections in the Constitution.

Not only do we have the legislative construction of this constitutional provision, but even stronger, we find a recognition thereof in the Constitution itself. Thus section 16 of article 5 reads:

“In case of death, conviction or impeachment, failure to qualify, resignation, absence from the State or other disability of the Governor, the powers, duties and emoluments of the office for the residue of the term, or until the disability shall be removed, shall devolve upon the Lieutenant-Governor.”

Note the fact that this section recognizes both the term and the dates of the election for the office of Governor, and provides that the legal successor shall hold “for the residue of the term.”

Viewing said section 10918 in the light of these legislative constructions of the Constitution and of the Constitution itself, we are constrained to take the position that the term “next general election” as used in said section means the next general election for Superintendent of Public Schools. Such a construction makes it harmonize with the Constitution and with the legislative construction given to the Constitution. If this construction is not given it the section cannot stand in the face of the Constitution. It is presumed that the Legislature intended the act to be in harmony with the Constitution and this construction makes it so. Under these views our judgment is correct, and it was upon these views that a majority of our brothers agreed.

Woodson, Faris and Revelle, JJ., concur in paragraph two and in result; Bond, J., concurs in paragraph one and result; Walker and Blair, JJ., dissent.