author: KENNISH, P. J.

text:
    Z. T. SUMMERS et al. v. JEROME ABERNATHY et al., Appellants.
    Division Two,
    April 11, 1911.
    1. CONVEYANCE: Obtained Through Fraud: Cause of Action. A petition alleging that the owner of land, having mortgaged it to the county, in his last sickness requested a 'neighbor to pay off the debt and receive as his compensation for so doing a part of the land, and that in pursuance of that request he had, in obedience to an order of the probate court, caused all the land to be sold by the sheriff, and bought it in, and held the rest as trustee, for the use and benefit of the owner’s widow; that he took the title with the sole purpose of reeonveying the balance to the widow, or in accordance with her request; that the defendant, with the intent to defraud her and her children, falsely and fraudulently represented to said purchaser that said widow had agreed and directed that the purchaser should convey the lands to defendant; that the representations made by defendant were false and known by him to be false; that the said purchaser, relying upon said representations and believing them to be true, executed a deed to defendant, without consideration therefor; that said deed constitutes a cloud upon the title of plaintiffs, who are the said purchaser, the widow and the children of said deceased owner, and praying that it be can-celled, states a cause of action, though it does not allege the false representations were made to the widow, the alleged trustee of the other heirs.
    2. FRAUD: Not Made to Party Injured: But to His Trustee. There is an' exception to the rule that the false representations which induced the execution of the fraudulent deed must be made to the party actually injured. If they were made to the trustee who held the title to the land in trust for a widow and her children, and he was thereby induced to convey the land to defendant, the deed will be cancelled at the suit of her and her children. The real party in interest can recover though the false representation was not made to him.
    3. CONVEYANCE; Obtained by Fraud: Trustee Retaining Unequal Share. The fact that the trustee who bought the land— a part to compensate himself for paying a mortgage, and the balance as trustee for the deceased owner’s heirs — has retained more than was necessary to reimburse himself for the money advanced, does not preclude a recovery by the widow and the heirs from the defendant who obtained a deed to the balance from the trustee by false representations. That is no ground for refusing to set aside the fraudulent deed, even though the trustee is, as trustee, for the other plaintiffs, himself joined as plaintiff.
    4. -: -: Limitations. A suit to cancel a fraudulent deed commenced within ten years after its execution, is not barred by limitations.
    5. -: -: Laches. Mere lapse of time, short of the statutory period of limitations, will not bar a claim for equitable relief, when the right is clear and there are no countervailing circumstances.
    6. -: -: No Consideration: Action at Law. Where the alleged fraud and want of consideration do not appear upon the face of the deed, or in any record upon which the validity of the deed 'depends, the defrauded persons may maintain a suit in equity to have it set aside, and are not remitted to an action at law, though no consideration was paid.
    7. -:-: Judgment: Vesting Title In Wrongful Heirs. The judgment should be in harmony with the petition. It should not vest the entire title in one of the plaintiffs as trustee for the others where the petition asserts that defendants have bought the admitted and averred interests of other plaintiffs.
    Appeal from Stoddard Circuit Court. — lion. J. L. Fort, Judge.
    Reversed and remanded,

      K. G. Spence and Andrew W. Hunt for appellants.
    (1) The duty is devolved upon a plaintiff, in the first instance, to state a canse of action; if he fails to state a cause of action, the objection may be raised in this" court. Young v. Scofield, 132 Mo. 650’. Fraud and injury must concur, and it must be so alleged, or plaintiff cannot succeed, and it was not so alleged in this case. 9 Ency. PI. and Pr. 696, sec. 6. In a suit to cancel a deed because of false representations made by a grantee, plaintiff must plead an injury or damage; and this was not done in this case. Smith v. Britten-ham, 98 111. 188 ; Joliffe v. Collins, 21 Mo. 338. The false representation must have been made to the injured person. If a false representation was made at all in this case, it was made to Proffer, while the injury, if any, was done solely to the widow and heirs of Elisha Summers, deceased. American Law Review, Jan.-Feb., 1910. (2) While the decree divests title out of appellants and vests it in respondent widow Louisa J. Summers, such allegations and facts found, and the theory upon which the cause was tried below, at the utmost would have justified a decree to. the effect that the title be vested in the heirs of Elisha Summers, subject to the statutory rights of his widow. Louisa J. Summers, the widow, stated in the petition that she would hold such rig-hts as the circuit court gave her for the heirs subject to her rights as widow. It is alleged in the petition that Abernathy owned all the interests of W. F. Summers and Marinda I. Baity, two of the heirs of Elisha Summers, in the land owned by the estate of Elisha Summers, yet the decree gives these interests to Louisa J. Summers, which is manifest error in the decree; and since such error appears upon the face of the record proper, it was saved to appellants by their motion in arrest of judgment. McGammon v. Ins. Co., 171 Mo. 143; 1 Black, Judgments, sec. 183. (3) Both limitations and laches bar plaintiffs from the relief sought, if not from all relief. Robinson y. Allison, 192 Mo. 366.

      Rudolph Houck and A. T. Welborn for respondents.
    This is a suit for the recovery of real property and as such could not have been barred- in less than ten years. Dunn v. Miller, 96 Mo. 338-; Cooper v. Deal, 114 Mo. 533; Hudson v. Cahoon, 193 Mo. 560; Rogers v. Brown, 61 Mo. 191. Nor does the petition show on its face that the respondents are barred by their laches. Hudson v. Cahoon, 193 Mo. 562. Appellants state that because the deed was without consideration and this fact was alleged in the petition, it was void on its face and respondents had an adequate remedy at law. But there is a distinction between alleging in the petition that a deed is without consideration and alleging that it shows on its face that it was without consideration. No such allegation as the last is found in this petition. On the contrary it is alleged that the deed was a warranty deed in ordinary form, duly executed, and constituted a cloud on the title to the lands. This-is certainly sufficient, especially after judgment. In such cases the rule is that where there is any defect, .imperfection or omission in a pleading, if the issue joined be such as necessarily required proof of the facts so defectively or imperfectly stated, and without which it is not to be presumed that the verdict or judgment would not have been given, such defect, imperfection, or omission is cured. 31 Cyc. 764. And while it was not necessary that this deed shoufd state a consideration on its face in order to be ostensibly a valid deed (Jackson v. Railroad, 54 Mo. App. 643), yet if it were necessary, there is nothing in the face of this petition to show that this deed does not recite such a consideration.
   KENNISH, P. J.

— On January 20, 1907, plaintiffs filed in the circuit court of Stoddard county a petition alleging that a deed executed by the plaintiffs Moses Proffer and Eliza Proffer, his wife, conveying certain land in that county to the defendant Jerome Abernathy, was obtained by fraud and without consideration. The prayer of the petition was that said deed be cancelled, • the defendants divested of the title to said land and said title vested in plaintiffs.

Upon a trial of the cause the circuit court found the issues for the plaintiffs, cancelled the deed, divested the defendants of the title to the land and vested the same in the plaintiff Moses Proffer, in trust for the plaintiff Louisa J. Summers. From this judgment the defendants appealed to this court. No bill of exceptions was preserved and filed and, therefore, only the record proper is before us for review. As the errors assigned by appellants all relate to the sufficiency of the petition, and the conformity of the judgment to the pleadings, the petition and the finding, judgment and decree will be set out at length.

The petition, omitting formal parts, is as follows:

“Plaintiffs state that Elisha Summers died intestate on the-day of-, 1894, leaving as his widow, the plaintiff Louisa J. Summers, and as children and heirs at law and in equity, the plaintiffs Z. T. Summers, Ada Garner, Marinda Hopkins, Walter Summers and John Summers, the defendant Lizzie Abernathy, W. F. Summers, now deceased, and Marinda I. Summers (now Bailey).
“Plaintiffs state that on November 5, 1890, and at the time of his death, the said Elisha Summers was the owner in fee and seized and possessed of, among others, the following described lands, lying and being situate in Stoddard county, Missouri, to-wit: All that part lying west of the Bloomfield and Gape Girardeau public road of the northeast quarter of the southeast quarter and all of the southwest quarter of the northeast quarter, except seven acres in the northeast corner thereof, all in section eight, township twenty-seven, range eleven east.
“That on the said 5th day of November, 1890; said Elisha Summers and Louisa J. Summers,' his wife, conveyed the lands by mortgage deed to Stoddard county as security for a loan of two hundred dollars secured by the said Elisha Summers from the school fund, and that at the time of the death of the said Elisha Summers, the said mortgage deed was still unsatisfied and still incumbered said land.
‘ ‘ Plaintiffs further state that during his last sickness it was the request of said Elisha Summers that plaintiff Moses Proffer should pay off the said mortgage deed and receive as his sole compensation for so doing the said southwest quarter of the northeast quarter, except the said seven acres in the northeast corner; that said Moses Proffer was willing to comply with said request of Elisba Summers; procured an order of the county court to the sheriff of Stoddard county directing him to sell the said land, became the successful bidder at the sale, and on March, 16; 1898, received . from the sheriff of Stoddard county a deed conveying to him, Moses Proffer, all the land above described and in said mortgage deed contained.
“Plaintiffs state that said Moses Proffer took the title to the said land, to-wit, all that part lying west of the Bloomfield and ■ Cape Girardeau public road of the northeast quarter of the southeast quarter of section eight, township twenty-seven, range eleven, unto himself by the said sheriff’s deed,'for the sole purpose of reconveying the same to the plaintiff Louisa J. Summers, that being, as he understood, in accordance with the request of said Elisha J. Summers, deceased.
“Plaintiffs state that the defendant herein, Jerome Abernathy, knowing that it was the intent of the said Moses Proffer to convey the' said land to Louisa J. Summers, or to some other person at her direction, ,went to the said Moses Proffer and, with intent to injure and defraud all the parties plaintiff to this suit, falsely and fraudulently represented to said Moses Proffer, that said Louisa J. Summers had agreed and directed that said Moses Proffer should make a deed to the said land, to-wit, all that part lying west of the Bloomfield and Cape Girardeau public road of the northeast quarter of the southeast quarter of section eight, township twenty-seven, range eleven, to him, the said Jerome Abernathy. Plaintiffs state that the said representations of the said Jerome Abernathy were false and known by him to be false, and that the said Louisa J. Summers had not agreed or directed that the said Moses Proffer should deed the said land to said Jerome Abernathy, but that plaintiffs Móses Proffer and Eliza S. Proffer believed said representations were true, and relying upon them and without any other or further consideration, duly executed, acknowledged and delivered to the said Jerome Abernathy a warranty deed, in common form, conveying to him the said lands, to-wit, all that part lying west of the Bloomfield and Cape Girardeau public road of the northeast quarter of the southeast quarter of section eight, township twenty-seven, range eleven east, in Stoddard county, Missouri, said deed bearing date May 1, 1899, and being recorded at page 233 of book 29, one of the land records of said Stoddard county, Missouri.
“Plaintiffs,-Moses Proffer and Eliza S. Proffer, state that they acknowledge that whatever title, interest or estate they have in and to the said land, to-wit, all that part lying west of the Bloomfield and Cape Girardeau public road of the northeast quarter of the southeast quarter of section eight, township twenty-seven, range eleven, they hold in trust for the purpose of carrying out the said request of the said Elisha Summers, deceased, and that they expect to and will execute their said trust, as soon as the said deed from them to the said Jerome Abernathy shall have been annulled and cancelled, by conveying whatever interest they may have in and to the said land to Louisa J. Summers, or to whomsoever she shall direct that it be conveyed, and that they join in this suit for the purpose of securing the annulment and cancellation of said deed.
“Plaintiff, Louisa J. Summers, acknowledges that whatever title, interest or estate, if any, except her quarantine, dower and homestead rights, she has or may have, under her present rights in and to the said land, she holds in trust for the heirs of said Elisha Summers and that she intends and will execute said trust by proper conveyances as soon as the cloud, cast upon the title to the said land by the said deed from Moses Proffer and his wife to Jerome Abernathy, is removed.
‘ ‘ Plaintiffs state that defendant, Lizzie Abernathy, refuses to join as plaintiff in this suit, and that de-' fendant, Jerome Abernathy, has obtained by warranty, deed, the title, interest and estate of W. P. Summers, deceased, and Marinda I. Bailey, as heirs of said Elisha Summers, deceased, in and to the said lands.
“Plaintiffs state that the said deed from Moses Proffer and Eliza S. Proffer, his wife, to said Jerome Abernathy, was obtained solely by fraud as above set out and without consideration and constitutes a cloud upon the title to the said land.
“Wherefore plaintiffs pray the court to order and adjudge that the said deed be cancelled, stricken from the records and for naught held, and that whatever title, estate or interest of these plaintiffs vested by it in the said Jerome Abernathy and Lizzie Abernathy, his wife, be divested out of them and vested into these plaintiffs, for costs in this behalf expended and for such other and further relief as to the court seems meet and just.”

A demurrer to the petition was filed and overruled, and thereupon the defendants filed their answer, which was a general denial.

Upon the issues thus made the cause was tried in the circuit court. The finding, judgment and decree of the trial court was as follows:

“Now again come the parties in the above entitled cause, on this 20th day of June, 1907, and announce themselves ready for trial.
“Whereupon, all and singular the issues made by the pleadings in this cause, are by the parties herein submitted to the court for its adjudication and judgment, and the court having heard all the testimony introduced by the plaintiff and all the testimony introduced by the defendant, and being now fully advised of and concerning the said testimony and the issues in said cause, doth find that the warranty deed made by plaintiffs Moses Proffer and Eliza S. Proffer, his wife, bearing date May 1,1899, and recorded in the land records of Stoddard county at page 233 of book 29^ conveying to Jerome Abernathy the following described land, to-wit, all that part lying west of the 'Bloomfield and Cape Girardeau public road of the northeast quarter of the southeast quarter of section eight, township twenty-seven, range eleven east, in Stoddard county, Missouri, was obtained by said Jerome Abernathy from said Moses Proffer and his wife, without consideration and by false and fraudulent representations as alleged in plaintiffs’ petition.
The court further finds that the title to said real estate is vested in Moses Proffer in trust for Louisa J. Summers, widow of Elisha Summers, deceased, and that the aforesaid deed is a cloud on said title. It is therefore ordered, adjudged and decreed that the said deed be and the same hereby is cancelled, stricken from the record and for naught held, and that whatever title, estate or interest vested by said deed in Jerome Abernathy, and Lizzie Abernathy, his wife, be, and the same- hereby is, divested out of them and vested in plaintiff Moses Proffer, in trust for plaintiff Louisa J. Summers.” ■

I. Appellants’ first assignment of error is that the petition fails to state a cause of action, because: “(a) Fraud and injury must concur, and it must be so alleged or plaintiff cannot succeed, and it was not so alleged in this case; (b) the false representation must have been made to the person injured.”

The petition alleges that Moses Proffer took the title to the land for the sole purpose of reconveying the same to the plaintiff Louisa J. Summers, in accordance with the request of Elisha Summers, deceased; that whatever title, interest or estate Louisa J. Summers has in said land, except her quarantine, dower and homestead rights, she holds in trust for the heirs of Elisha Summers, deceased; that the defendant, Jerome Abernathy, with intent to defraud the plaintiffs, falsely and fraudulently represented to Proffer that Louisa J. Summers had agreed and directed that Proffer should convey the land to him; that the representations so made by said Abernathy were false and were known by him to be false; that Louisa J. Summers had not agreed or directed that the land be conveyed to Abernathy; that Proffer, relying upon said representations and believing them to be true, executed the deed to Abernathy, without any consideration therefor; that said deed constitutes,a cloud upon plaintiffs’ title to said land. These allegations clearly and explicitly charge the perpetration of such fraud practiced by the defendant Jerome Abernathy, in obtaining the deed, and such injury resulting to the plaintiffs therefrom, as to entitle the plaintiffs to the relief prayed for in the petition. [Turner v. Turner, 44 Mo. 535; Nauman v. Oberle, 90 Mo. 666; Brown v. Fickle, 135 Mo. 405; 13 Cyc. 578.]

Neither do we think the petition objectionable because it shows on its face that the false representations complained of were made to Proffer, the trustee, while the injury was suffered by the widow and heirs, for whom Proffer held the property in trust.

Appellants correctly state the general rule to the effect that the false representation must have been made to the person injured. But this rule is subject to well recognized exceptions. In 20 Cyc. 83, one exception to the rule is stated in the following language: “The fact that the plaintiff did not appear in the transaction induced by the fraud will not prevent his recovery when he was in fact the real party in interest.”

In the case at bar the widow and heirs of Elisha Summers are the parties who are alleged to have been injured by means of the false representations. The widow and the heirs, except three of the children of Elisha Summers, deceased, are parties plaintiff. The interests of these three children are alleged to be owned by the defendants, the defendant Lizzie Abernathy being a daughter of said Elisha Summers, and the defendant Jerome Abernathy having acquired, by deed, the interests of the two other children. The widow and the heirs who join as plaintiffs, being real parties in interest, are entitled to maintain an action for relief from the consequences of the fraud alleged to have been perpetrated upon them by the alleged false representations of the defendant Jerome Aber- • nathy. We, therefore, hold that the petition is not objectionable on the ground urged by appellants.

II. It is next contended that the finding and judgment should have been for the defendants because “there is no equity in plaintiffs’ bill.” The ground upon which this contention is based is a statement in appellants’ brief that the plaintiff, Moses Proffer, has not done equity in the premises, in that he has reserved to himself much more' land than was necessary to reimhurse Mm for the money advanced for the benefit of the widow and heirs in buying the land at the sheriff’s sale. No such state of facts is disclosed by the record before this court, nor would such facts, if established, preclude a recovery by the plaintiffs. The maxim quoted by appellants, “Equality is equity,” is certainly invoked in a new field when it is relied upon to protect the defendant Jerome Abernathy in holding the title to land which he has acquired in fraud of the rights of the widow and heirs, merely because Moses Proffer, who is a party plaintiff solely as trustee for the widow and heirs, has also practiced alleged fraud upon them concerning the subject-matter of the controversy.

III. It is assigned as error that the petition shows upon its face that plaintiffs’ action was barred, both by the Statute of Limitations and by laches.

Elisha Summers died in 1894. Proffer bought the land at sheriff’s sale in 1898. The conveyance to defendant was made and recorded in 1899'. This suit was instituted in 1907. It is a suit for the recovery of lands and was commenced within ten years after the execution of the deed in controversy, and was, therefore, not barred by limitations. [Sec. 1879, R. S. 1909; Burdett v. May, 100 Mo. 13; Haarstick v. Gabriel, 200 Mo. 237.]

The record does not disclose such laches as precludes a recovery by plaintiffs. Mere lapse of time, short of the statutory period of limitation, will not bar a claim to equitable relief, when the right is clear and there are no countervailing circumstances. As the only ground upon which the defense of laches is asserted, as shown by the record, is a delay of eight years in instituting suit, it must be held that plaintiffs’ claim is not barred by laches. [Cantwell v. Crawley, 188 Mo. 44; Hudson v. Cahoon, 193 Mo. 547; Haarstick v. Gabriel, 200 Mo. 237.]

IY. The next assignment of error is that since the petition alleges that the deed was without consideration and for that reason void,' the plaintiffs have an adequate remedy at law and cannot maintain an equitable action to cancel the deed and vest the title in the plaintiffs.

In support of this assignment appellants cite and rely upon the case of Turner v. Hunter, 225 Mo. 71. That was a suit to cancel a sheriff’s deed, made pursuant to a sale of land for delinquent taxes. The petition alleged that the sheriff’s deed was executed without any judgment having been rendered for the taxes against the land and without any execution having been issued authorizing the sheriff to make the sale. This court held that the facts stated in the petition showed that the sheriff’s deed was not a cloud upon the title, because the record of the proceedings in the circuit court, upon which alone the right of the sheriff to make the deed depended, disclosed the facts that the deed was made without any judgment having been rendered and without auy execution having been issued. As the deed in question did not constitute a cloud upon the title, and as the plaintiff had an adequate remedy at law by an action of ejectment, it was held that the plaintiff could not maintain a bill in equity to cancel the deed.

The rule applied in that case is not in point in the ease at bar. In this case the alleged fraud and want of consideration are matters that do not appear upon the face of the deed, or in any record upon which the validity of the deed depends.

V. The last assignment of error is that the judgment is not in conformity with the allegations of the petition. Appellants’ contention upon this point is that the petition alleged that whatever title, interest or estate the widow, Louisa J. Summers, had or might have in the land in question, she held for the heirs of Elisha Summers, deceased, subject to her rights and interests as his widow;- that the petition further alleged that the defendant Jerome Abernathy had acquired by deed the interests of two of the heirs of Elisha Summers, namely, his daughter Marinda I. Bailey and his son, W. F. Summers; while the judgment rendered in the trial court awarded the land to the widow, to the exclusion of the interests of Jerome Abernathy and of the heirs of said Elisha Summers.

■ In our opinion this contention must be sustained. The petition alleges that Proffer took the title to the land for the sole purpose of reconveying the same to the plaintiff, Louisa J. Summers; that whatever title-, interest or estate Louisa J. Summers has or may have in the lands, except her quarantine, dower and homestead rights, she holds in trust for the heirs of said Elisha Summers, deceased; that the defendant,.Jerome Abernathy, has obtained by warranty deed the title, interest and estate in and to said land of W. F. Summers and Marinda I. Bailey, heirs of said Elisha Summers. The court found and adjudged that “the title to said real estate is vested in Moses Proffer, in trust for Louisa J. Summers, widow of Elisha Summers, deceased. ”

While it may be difficult to harmonize all of the allegations of the petition, we are of opinion that when it is read as a whole it discloses plainly and clearly that the theory of the plaintiffs as disclosed in the petition, and against which the defendants were called upon to defend their rights in the trial court, was that the land rightfully belonged to the widow and heirs of Elisha Summers; that the defendant Jerome Abernathy should be divested of the title to the land because he had obtained the same by fraud; that the title should be vested in the widow, the heirs, and Jerome Abernathy, according to their respective rights, the interest of defendant Jerome Abernathy being the interests of two of the children of Elisha Summers which he had acquired by deed, and the interest of defendant Lizzie Abernathy being the same as the interest of each of the other children of Elisha Summers, deceased. The judgment vesting .the title in Proffer, in trust for Louisa J. Summers, deprives J eróme Abernathy and the children of Elisha Summers of interests in the land which are expressly admitted to be owned by them in the admissions made in the petition by Louisa J. Summers.

For the foregoing reasons we hold that the court erred in its finding and decree vesting the title in Proffer, in trust for Louisa J. Summers, to the exclusion of the rights of the children of Elisha Summers, and to the exclusion of the rights of Jerome Abernathy under his deed from the two children of said Elisha Summers.-

The homestead rights of the widow and minor children, if such rights exist, the dower rights of the widow, the interests of Jerome Abernathy acquired by his deed from the two children, and the interests of the other heirs of Elisha Summers, should be ascertained, and a judgment entered vesting the title to the land in the parties named, according to their respective rights and interests. Such judgment should vest the title directly in the parties thereto, instead of vesting it in Moses Proffer in trust for them.

The judgment is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Ferriss, and Brown, JJ., concur.


source: Caselaw Access Project

author: GRAVES, J. PER CURIAM. BROWN, J. WOODSON, J. KENNISH, J.

license: Public Domain

text:
    THE STATE ex rel. GEORGE C. WALLER, Collector, Appellant, v. TRUSTEES OF WILLIAM JEWELL COLLEGE.
    In Banc,
    April 19, 1911.
    1. TAXATION: Exemption: Strict Construction: Educational Corporation. The rule that statutes exempting property from taxation are to be strictly construed has been largely applied to corporations organized for profit and gain, but courts have never been over anxious to so apply the rule as to impose burdens upon religious, scientific, literary or educational institutions.
    2.--: -: -: Legislative Intent: Whole Act. In a case where the issue is whether or not the endowment fund of a college is taxable, the courts will not permit the evident intent of the legislative mind to be thwarted by its use of unfortunate words, when the intent can be clearly gathered from the context of the act, when considered along with the attending public policy and other surrounding circumstances. The cardinal rule of construction is that the legislative intent is to be ascertained, and to that all other rules are subservient.
    3. -: -: —-: Extrinsic Aids. Under certain circumstances courts can call to their assistance extrinsic aids in the construction of statutes, such as kindred statutes, statutes in pari materia, and the statutory policy of the State concerning the matter held in judgment.

      Held, by KENNISH, J., dissenting, that the rules of construction and interpretation of laws are not to be invoked to ascertain the legislative intent, and resort to such rules is not permissible, where the language used in the statute is not susceptible' of different meanings and is not ambiguous.
    4. —-: -: -: -: Other Statutes, Etc. The fact that prior to the formation of the Constitution of 1865 the public policy of the State was to encourage and foster educational institutions by exempting their entire properties from taxation; and that the Act of 1849 incorporating William Jewell College provided that “the property, real and personal, authorized to be held by said corporation, shall be held and applied in good faith to the purposes of education, and for no other or different purpose”- — by which the use of its property was definitely restricted to a public purpose; and that it has always been the law of this State that property used for State, county, municipal or other public purposes should not be taxed, may be considered, in determining whether the Legislature, in enacting the Act of 1851, exempting from taxation the “lands” of said college, which then constituted its sole endowment, intended thereby to exempt its subsequent endowment of per- ’ sonal property, created by the sale of said lands and subsequent gifts.
    5. -: -: -: -: -: Public Policy: History of Times: Word “Lands” Meant “Property.” It is also proper, as arriving at the legislative intent, to consider that the State .in creating the corporation, authorized its. trustees to solicit and receive property of all kinds and add it to the college’s -endowment fund; that the State then had no educational institutions of its own, and its then Constitution declared that “schools, and the means of education shall forever be encouraged in this State,” and by “encouraged” it meant something more than a mere license to exist; and, also, that in the sixty or more charters granted to academies and colleges in the early days, the same liberal legislative public purpose is manifest. With these extrinsic aids as a setting the word “lands” used in the Act of 1851 exempting the “lands” of William Jewell College from taxation is held to mean “property.”
    6. -: -: -: William Jewell College. The Act of 1851, exempting the “lands” then owned by William Jewell College and “all the lands that may hereafter be devised or granted to said college” from taxation, lands being then its only kind of endowment, meant “property,” and said act exempted also from taxation the endowment of personal property of said college thereafter created by the sale of said lands or by- gifts thereto. So much of the endowment fund of said college as consists of personal property is exempt from taxation.

      Meld, by KENNISH, J., dissenting, that as the Act of 1851 was passed in response to a petition from the trustees of said college “praying that lands belonging to said college may be exempted from taxation and protected from trespassers,” and as the act in one section released “the lands belonging to said college from delinquent taxes” theretofore levied, and in another penalized trespassing on “any of the lands belonging to said college,” the declaration in another section that “all the lands and improvements thereon now owned by William Jewell College in the counties of Clay, Grundy, Mercer and Sullivan, and all lands that may hereafter be granted or devised to said college, or any other institution of learning in this State, for the benefit of education, be and the same are hereby exempted from all taxes,” applied to lands alone, and cannot be amplified to mean personal property, then or thereafter owned. The word “lands” is an unambiguous word, and no rules of interpretation are applicable, since the legislative meaning as ascertained by the statute itself, is clear and unmistakable.
    7. -: Construction of Statute by Administrative Officers. The uniform and continued construction for more than fifty years, placed upon the Act of 1851 exempting the lands of William Jewell College from taxation, by the revenue officers of the county where it is located, to the effect that its personal property was also exempt, is not conclusive, but is strongly persuasive' of its meaning.

      Meld, by KENNISH, J., dissenting, that there being no showing anywhere in the record when the college first owned personal property, the continuous omission, of the revenue officers to tax the college is of little or no significance as showing the contemporaneous construction by them of the Act of 1851.
    8. -: -: College Endowments: Constitutional Provisions. Meld, by BROWN, J., in a separate concurring opinion, that the provisions of the Constitution of 1875 did not create a right in the State to tax personal property of an educational corporation chartered prior to the enactment of the Act of 1851, which was not only a public act but provided-that all lands now owned by William Jewell College and “all the lands that may hereafter be granted or devised to said college, or any other institution of learning in this State, be and the same are hereby exempted from taxes.” To hold that by that act it was intended to exempt the lands of an educational corporation from taxation and leave its personal property subject to the burdens of taxation, would be to convict the General Assembly of enacting an absurd law. But since this is a suit to collect taxes attempted to be imposed upon personal property alone, it is unnecessary to decide whether, under the Constitution of 1875, the real estate of an educational corporation previously chartered can he exempted.
    Appeal from Clay Circuit Court. — Hon. J. W. Alexander, Judge.
    Aeeiemed.

      Ralph Hughes and Sebree, Conrad & Wendorff for appellant.
    (1) The language of the Act of February 22, 1851, under which defendant claims its personal property is exempt from taxation, must be taken in its ordinary and usual sense, and when so read, clearly refers to real estate and not to personal property. R. S. 1899, sec. 4160,- Standard Dictionary; Century Dictionary; 1 Cooley’s Blackstone (3 Ed.) 14; 18 Am. and Eng. Ency. Law, 140, 711; 24 Cyc. 842, 843; State ex rel. v. Wilder, 206 Mo. 549; 14 Am. and Eng. Ency. Law, 1114; 27 Am. and Eng. Ency. Law, 541. (2) Statutes exempting property from taxation must be ■strictly construed; nothing should be held exempt by implication. 1 Cooley on Taxation (3 Ed.) 356-357; State ex rel. v. Casey, 210 Mo. 235; Fitterer v. Crawford, 157 Mo. 51; City of Kansas v. Medical College, 111 Mo. 141; Phoenix Ins. Co. v. Tennessee, 161 U. S. 174; Adelphia Lodge v. Crawford, 157 Mo. 356; State •ex rffi. v. Johnson, 241 Mo. 657. (3) The mistake of taxing officers in failing to have property taxed, is no .estoppel on the State, nor has it any effect in construing the statute. Westerman v. Supreme Lodge, 196 Mo. 670; Railroad-v. Dennis, 116 U. S. 665; Hiber- ■ nian Society v. Kelly, 28 Ore. 173; R. S. 1899', secs. -9199, 920Ü1. (4) The Act of 1851, exempting defend- ■ ant’s lands from taxation, was repealed. Grand Lodge v. New Orleans, 166 U. S. 143.

      . W. M. Williams and Warner, Deem, McLeod & Timmonds for respondent.
    (1) There was no constitutional prohihition in 1851 against the exemption of college property from taxation. It was clearly within the power of the Legislature to grant the exemption contained in the Act of February 22, 1851. State ex rel. v. Westminster College, 175 Mo. 60; St. Vincent’s College v. Schaefer, 104 Mo. 261; Scotland County v. Railroad, 65 Mo, 123. (2) The word “land” was used by the Legislature in the Act of 1851 in the sense of “property.” “The letter of a statute may be enlarged or restrained according to the intent of the framers of the law. In such cases the reason, of the law prevails over its letter. ’ ’ Laws 1851, p. 64; Andrew County v. Kirtley, 135 Mo. 3.1; Bryant v. Russell, 127 Mo. 422; Hale v. Stimson, 198 Mo. 165; State v. Bixman, 162 Mo. 1; Lewis’s Sutherland on Statutory Construction (2 Ed.), secs. 348, 376 and 379. (3) “For the purpose of ascertaining the intent of the lawmaker, a court is not confined exclusively to the language of the statute, although its language must he given due weight, hut should consider as well the circumstances that led to its adoption and the evils it was designed to remedy.” Westerman v. Supreme Lodge, 196 Mo. 670'; State ex rel. v. Swanger, 190 Mo. 561. (4) The officers of the State charged with the execution and enforcement of its revenue laws, for more than a half century construed such laws as exempting the property of the college from taxation. “The general understanding of a law and constant practice under it for a period of over twenty [here fifty] years by all officers charged with the execution of it, unquestioned by any public or private action, is strong, if not conclusive, evidence of the true meaning.” Westerman v. Supreme Lodge, 196 Mo. 710; Pennoyer v. McConnaugh, 140 U. S. 23; Scanlan v. Childs, 33 Wis. 663; Packard v. Richardson, 17 Mass. .144; Venable v. Railroad, 112 Mo. 103; Ross v. Railroad, 111 Mo. 25. (5) “Public policy is a hand-maiden of sound legal exposition.” The Constitution of 1820 declared that ‘ ‘ schools and the means of education shall be forever encouraged in this State.” It was the public policy of Missouri at the time of the passage of the Act of 1851 to encourage the organization and establishment of colleges and institutions of learning and to promote their welfare by relieving them from, rather than imposing burdens upon them. The early Session Acts contain abundant evidence that the policy of the State was to relieve educational institutions, not conducted for private benefit or gain, from the burdens of taxation. Hale v. Stimson, 198 Mo. 165; Yale University v. New Haven, 71 Conn. 316. (6) In endeavoring to ascertain the legislative intent in passing the act in question, it is proper to look at other charters granted hy the State about the same time to educational institutions, practically all of which were exempted from all taxation, and probably the universal construction of the charters and acts relating to the various colleges in this State organized prior to 1875', has been exempting them from taxation. (7) “The same strictness of construction will not be indulged where the exemption is as to religious, scientific, literary and educational institutions, that will be applied in considering exemptions . of corporations created and operating for private gain and profit.” ' State v. Fiske University, 87 Tenn. 233; Indianapolis v. Grand Master, 25 Ind. 518; People v. Tax Commissioner, 11 Hun, 505 Northampton v. Lehigh University, 13 Pa. Co. Ct. R. 659; Cassiano v. Urslin University, 64 Tex. 673; Railroad v. Gaines, 3 Fed. 266; People ex rel. v. Benevolent Assn., 43 Hun, 314. The Act of 1851 was not repealed by the Constitution of 1865 or the Constitution of 1875. The constitutional provisions prohibiting exemptions were prospective and not retrospective in their operation. Scotland County v. Railroad, 65 Mo. 123; State ex rel. v. County Court, 41 Mo. 453; State ex rel. v. County Court, 51 Mo. 522; State ex rel. v. ' -Westminster College, 175 Mo. 52. (9) The Act of 1851 was accepted by the defendant and many donations were made to its endowment thereafter. The college was subsequently enlarged and its work greatly extended. The consideration for the act was the benefit to be derived by the State from the maintenance and enlargement of this institution of learning, and, after it was accepted and acted upon by the defendant, it constituted an irrepealable contract between the State and the college. State ex rel. v. Westminster College, 175 Mo. 52; St. Vincent’s College v. Schaefer, 104 Mo. 267; Washington University v. Rowes, 8 Wall. - 439; Home of the Friendless v. Rowes, 8 Wall. 830.
   GRAVES, J.

— This is an action by the collector of Clay county by which it is sought to collect from defendant certain State, county, school and other taxes alleged to be due upon personal property owned or held by defendant. "Defendant filed answer, the necessary portions of which will be noted as required in the course of the opinion.

Plaintiff offered in evidence the back taxbill and rested the case. .Defendant then offered an agreed statement of facts as follows:

“In the trial of the above entitled cause it is hereby agreed between the parties plaintiff and defendant that the following facts are true, reserving, however, to each party the right to object to the introduction of any one or all of such agreed facts on the ground of its or tbeir irrelevancy, inadmissibility .or incompetency, to-wit:
“1. That defendant is an educational corporation duly organized under and by virtue of an act of the General Assembly of the State of Missouri, approved February 27, 1849, entitled ‘An Act to Charter a College in the State of Missouri,’ found in the Laws of Missouri of the year 1849, passed by the 15th General Assembly of said State, at page 232, 233 and 234.
“2. That said defendant acquired its name, to-wit, ‘Trustees of William Jewell College,’ and its college, ‘William Jewell College,’ was located in the town, now city, of Liberty, in Clay county, Missouri, on August 21, 1849, and a certificate, showing said name and location, was filed in the office of the recorder of deeds for Clay county, Missouri, on August 25, 1849, in accordance with the provisions of said act approved February 27,1849.'
“3. At the date of the passage of the act which defendant claims exempts it from taxation,, to-wit, February 22, 1851, defendant had no endowment in personal property. The endowment at that date, possessed by defendant, consisted solely of the real estate mentioned in said Act of February 22, 1851.
“4. That at and ever since said date of February 22, 1851, defendant accepted said act and has since, and is now engaged in the work of education and maintaining said college at Liberty in the State of Missouri. And all its property, real and personal was, and is now being used for that purpose exclusively, and not for. the purpose of private gain or emolument to the defendant, or any person or corporation.
‘‘5. That by the name ‘William Jewell College' in the title and first section of the Act of the General Assembly, approved February 22, 1851, found in the Laws of Missouri of the year 1851, at pages 64 and 65-, is meant said defendant, ‘The Trustees of William Jewell College.’
“6. That said defendant has since February 22, 1851, sold the lands mentioned in said act of that date except the land used as its college campus in Clay county, Missouri, and the proceeds -derived therefrom were turned into its general endowment fund. That since that date and prior to the assessment of the taxes herein sued for, defendant has received its gifts and bequests of money for its educational endowment, and derived from the sale or proceeds of its real estate, personal property greater in amount than, the assessment on which the taxes sued for in this case are claimed to be levied, and that it had in its possession said personal property as a part of its endowment at the time of said assessment.
“7. The said defendant was not assessed for taxation after February 22, 1851, in Clay county, Missouri, until the assessment was made for the taxes sued for herein; nor has defendant paid any taxes on its said property, real or personal, since said date.
“8. That the various steps in levying said assessment for the taxes sued for herein, the returning of them to the county clerk, the extension of said taxes on the tax books, the delivery of said tax books to .the collector, and his endeavor to collect said taxes, are regular on their face and no objection is to be made thereto, except that the property of defendant is exempt from and not subject to taxation.”

Defendant also put in evidence the two acts of the General Assembly mentioned in the agreed statement of facts.

By oral evidence it was shown that the defendant had never been required to pay any taxes up to the time of this-suit, although it owned property in different parts of the State. It was also shown that the revenue officers of the State had always construed the Act of 1851 as exempting all of the college property from taxation.

The property sought to be taxed in the present case covers the endowment fund of the college. The trial court held that the property of defendant was exempted from taxation, and from its judgment the plaintiff brings the case here by appeal.

I. The real question in this .case is the construction to he given to the Act of 1851, which is relied upon by the defendant as exempting it from the taxes sought to be recovered. Preliminary to a discussion of the statute itself, it is well to get our bearings upon the rules of construction applicable to a case of this character. It stands admitted that the property sought to be taxed is the endowment fund of the defendant. It stands admitted that defendant is an educational institution or corporation, and is not a corporation for gain or profit.

It is urged that exemption -statutes are to be strictly construed. Generally speaking, such is the rule. But we take it from the cases that there has been a well recognized exception to the rule. Perhaps a better wording would be to say that the courts have never been over anxious to apply the rule so as to impose burdens upon religious, scientific, literary and educational institutions. Strict construction has largely been applied to corporations organized for profit and gain, not to corporations performing a public service. As tending to show the drift of the courts, some of the cases may not be amiss.

In State v. Fisk University, 87 Tenn. 233, the Supreme Court of Tennessee says: “The contention on behalf of the State and county is that, inasmuch as the Constitution of 1870 requires all property to be taxed, with the exceptions therein stated, the exception and exemption must be strictly construed, and nothing not within the letter of the exception must be allowed to escape its share of the burdens of government. It is unnecessary to resort to argumentation, or to .cite authorities for the general principle that exemptions from taxation are generally to be construed with great strictness. Our reported cases state and maintain the rule as contended for, and this court has no purpose or disposition to depart from such construction. But this, like all other rules of construction, is made to rest -upon the intention of the Legislature, and will not be allowed to defeat the will of the lawmaking branch of the government. To apply this strict .construction to individuals, and to corporations for profit, is but to announce the judgment of the courts upon the intention of the Legislature; while to give to a constitutional or legislative act, granting- an exemption in aid of institutions-literary and educational, a construction that is within the spirit, policy, and purpose of the act, and not opposed to its letter, is likewise but. ascertaining and declaring the intent of the lawmaking power.....We only decide that the intention of the Legislature must govern in ascertaining the -extent of such exemptions, and that in arriving at such intention the same strictness of construction will not be indulged where- the exemption is to religious, scientific, literary, and educational institutions, that will be applied in considering exemptions to corporations created and operating for private gain or profit.”

So, too, in Indiana, the Supreme Court of that State, after recognizing the general rule, in the case of City of Indianapolis v. Grand Master, 25 Ind. 518, said: “In favor of literary and scientific institutions possibly a more liberal construction would be required, for the reason that the encouragement, of educational facilities is in furtherance of a public policy deemed so vital to the success and permanence of free government, that it is prominently manifested in our Constitution and laws. ’ ’

In People ex rel. v. Tax Commissioners, 11 Hun, l. c. 506, it is said: “The'Revised Statutes provide that the real and personal property of every public library shall be exempt from taxation. [1 R. S. 388, see. 4, sub. 5.] The question is whether the relator is such a public library and entitled to the statutory exemption.. The question is not free from doubt. Statutory exemptions are, in general, strictly construed, and there is force in the contention that such exemption should be limited to libraries organized and maintained by the State or its political subdivisions, or to such as are established by private liberality for the free use of the public, ‘and such use guaranteed by the charter of deed of foundation.’ There are, however, some persuasive considerations peculiar to the case at bar. The purposes of the relator are essentially of a public character. It exists neither directly nor indirectly for private, personal, or corporate gain, but for the encouragement and advancement of geographical science, and the collection, diffusion and perpetuation of useful knowledge. Such a public-spirited and beneficial institution is entitled to a broader and more liberal construction of the statute of exemptions, than if it were a mere money-making body. The spirit of the cases favors this conclusion; for, while in Chegaray v. The Mayor, 13 N. Y. 220, it was held that a private boarding school was not within the statute exempting ‘every school house and every building erected for the use of a college, incorporated academy, or other seminary of learning,’ yet in the Hebrew Free School Association v. The Mayor, 4 Hun, 446, a society organized under, the laws for the incorporation of benevolent, charitable, scientific, and missionary societies, was treated as a ‘religious society’ within an act (Laws 1852, chap. 282) limiting exemption from taxation to what is ‘exclusively’ the property of a ‘religious society.’ The object in the one case was private gain, and the construction was strict; in the other gratuitous instruction,, and the interpretation was liberal.”

An exemption statute was under discussion in L. & N. R. Co. v. Gaines, 3 Fed. 266. In that case, Baxter, C. J., said: “The office of a good expositor, says My Lord Coke, ‘is to make construction on, all its parts together. ’ The plainest words may be controlled by the context. It is the intention expressed in the act, as a whole, that is to prevail. Courts look to the centext, as well as to the words, for the meaning’ of particular words used in the act. They may also take into consideration the purpose the Legislature was endeavoring to accomplish, acts in.pari materia, and contemporaneous surroundings. These rules of common sense, applied from time to time in the construction of statutes, shall guide us in this instance.”

At least it should be-said that the courts in, such cases -will not permit the evident intent of the legislative mind to be thwarted by its use of unfortunate words, when the intent can •be clearly gathered from the context of the act, when considered along with the attendant public policy and other surrounding circumstances. [Hale v. Stimson, 198 Mo. l. c. 165.]

The cardinal rule of construction is that which requires the legislative intent to be ascertained, and to this all other rules are subservient. With these observations we proceed to the real task allotted by the issue made in this case.

II. The Act of 1851 (Laws 1851, p. 64), reads:

“An Act for the benefit of William Jewell College.
“1. Certain lands owned by ‘William Jewell College’ exempted from tax.
“2. Delinquent lands relieved from payment of taxes; duties of Register of Lands.'
“3. Penalty for trespass on lands.
“4. This is a public act; duties of circuit court.
“Be it enacted, by the General Assembly of the State of Missouri, as folloivs:
“1. That all the land and improvements thereon now owned by the ‘William Jewell College’ in the counties of Clay, of Grundy, Mercer and Sullivan, and all the lands that may hereafter be granted or devised to said college, or any other institution of learning in this State, for the benefit of education, be, and the same are hereby exempted from all taxes and assessments so long as said lands may be owned by said college.
“2. That the lands belonging to said college in the counties of Mercer and Sullivan which have been returned delinquent for non-payment of taxes, are hereby released from the same; and the Register of Lands is hereby authorized to grant an acquittance of the same to said college on payment of the office fees.
“3. That any person or persons, who shall willfully cut, injure, destroy or remove any timber or other •, materials, from, or on, any of the lands belonging to said college without the consent of the board of directors thereof, shall be guilty of a misdemeanor, and subject to be indicted and punished as in cases now .provided for by law.
“á. This act is hereby declared a public act, and shall be given in charge to the grand juries of the counties of Clay, Grundy, Mercer and Sullivan, at each term of the circuit court.
“This act to take effect.and be in force from and after its passage.
“Approved February 22,1851.”

The agreed statement of facts shows that at the time this act was passed the entire endowment fund of the defendant was in lands.

Defendant contends that the word “lands” as used in this exemption statute means that the endowment fund of the defendant was and is to be exempted from taxation. The plaintiff urges a strict construction and therefore claims that this term does not apply to any of the college endowment, except such as is in' fact invested in lands. Plaintiff also urges that there has been a repeal of the Act of 1851 by subsequent constitutional provisions. The latter contention we will consider, if necessary, in a further paragraph.

As bearing upon the suggestion made in our paragraph one, supra, in a well recognized authority on statutory construction (2 Lewis’s Sutherland, Stat. Constr., sec. 376), it is said: “The mere literal construction of a section in a statute ought not to prevail if it is opposed to the intention of the Legislature apparent by the statute; and if the words are sufficiently flexible to admit of some other construction it is to be adopted to effectuate that intention. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. ‘While the intention of the Legislature must be ascertained from the words used to express it, the manifest reason and the obvious purpose of the law should not be sacrificed to a literal interpretation of such words.’ Words or clauses may be enlarged or restricted to effectuate the intention or to harmonize them with other expressed provisions. Where general language construed in a broad sense would lead to absurdity it may be restrained. The particular inquiry is not what is the abstract force of the words or what they may comprehend, but in what sense they were intended to be used as they are found in the act. The sense in which they were intended to be used furnishes the rule of interpretation, and this is to be collected from the context; and a narrower or more extended meaning is to be given according to the intention thus indicated.”

And the same author at section 379, says: “A thing which is within the ob ject, spirit and the meaning of the statute is as much within the statute as- if it were within the letter. Conversely, a thing which is not within the intent and spirit of a statute is not within the statute, though within the letter.”

These rules this court has fully recognized. [Hale v. Stimson, 198 Mo. l. c. 165; Keeney v. McVoy, 206 Mo. 42, and Perry v. Strawbridge, 209 Mo. 621, and cases cited therein.] Earlier cases in this State are Andrew County v. Kirtley, 135 Mo. 31; Bryant v. Russell, 127 Mo. 422; State v Bixman, 162 Mo. 1.

Nor should we overlook the fact that under certain circumstances we can call to our assistance extrinsic aids in the construction of statutes. [Black on Interpretation of Laws, pp. 196-7; Sedalia ex rel. v. Smith, 206 Mo. l. c. 364 et seq.]

In the Smith case we said: “These allowable extrinsic aids are numerous and varied, including public documents and papers, statutes in pari materia, contemporary history, contemporary construction and usage, executive and legislative construction, journals of the legislative body, opinions of legislators, motives of the legislative body and perhaps others.”

Prior to the 'Constitution of 1865 there was no restriction upon the legislative power in the matter of granting.exemptions from taxation. The public policy of the State prior to 1865, as evinced by numerous acts incorporating educational institutions and exempting their property from taxation, is clearly apparent. That public policy was to encourage and foster educational institutions. Some of these acts of the Legislature this court has -had occasion to discuss. [St. Vincent’s College v. Schaefer, 104 Mo. 267; State ex rel. v. Westminster College, 175 Mo. 52.]

Going now to the special acts pertaining to William Jewell College, we find that the college was incorporated by the Act of February 27, 1849. Some portions of this act will be necessary to reach the legislative intent as undertaken to be expressed in the Act of 1851.

The preamble of the Act of 1849 reads: “Whereas, the United Baptists in Missouri and their friends are desirous of endowing and building up a college in the State, and for that purpose have under the direction of the General Association of Baptists in Missouri already secured pledges to the amount of about twenty thousand dollars, for the endowment of the same in shares of forty-eight dollars, each payable in installments of six dollars per share annually, now therefore to enable the parties above mentioned to carry out their contemplated purpose,

“Be it enacted by tbe General Assembly of the State of Missouri, as follows:”

By section 1 of the act, 26 persons named therein are constituted a body politic, with perpetual succession. By section 2 it was provided that the college mentioned should be located at some place in the State by a majority of the donors to the endowment of the same (one share of $48 constituting a vote) and also given a náme. •

Section 3 of the act thus reads: “After the college shall have been located and named as provided in the-second section, the persons named in the first section and their successors in office shall be- known and styled by the name of the trustees of the college thus named, and shall have full power in their corporate capacity, to hold by gift, grant, demise, devise, or otherwise any lands, tenements, hereditaments, monies, rents, goods, or chattels of what kind soever the same may be, which is or may hereafter be given, granted, demised to or purchased by them for and to the use of the aforesaid college, and may sell and dispose of the same or any part thereof or lease, rent or improve in such manner as they shall think most conducive to the interest and prosperity of said college. ’ ’

Other sections, from 4 to 12 inclusive, provide for the details of the corporation thus organized and the duties of the officers thereof, with other matters immaterial here. Section 13, the last section of the act is significant and reads: “That the property, real and personal, authorized to be held by said corporation by virtue of this act, shall be held and applied in good faith to the purposes of education according to the provisions of this act and for no other or different purpose.”

The significance of the last section lies in the fact that the use of the property is restricted to a public purpose. It clearly indicates the interest that the State was taking in the corporation. This is peeuliary significant in view of the further fact that private corporations could be and were thus chartered by legislative enactments. It shows a legislative recognition of the fact that the property of this corporation was to be devoted to a public use, for in those days the diffusion of knowledge was so recognized. The State then recognized a duty upon its part to fulfill the ends of a republican form of government by encouraging the education of its citizens. There is at least a legislative declaration in this section 13, to the effect that the property of this corporation was to be devoted to a public purpose. If not, no reason could be assigned for the solicitude of the State in thus limiting the use of the property. It has always been the law that property used for state, county, municipal and other public purposes should not be taxed. Whatever may be called the public policy of the State since the Constitutions of .1865 and 1875-, there can be no question as to what it was before those dates. Not only is it evinced by this section 13 of the Act of 1849, but by other contemporaneous acts. There would have been ho special reason for limiting the use of the property of this corporation strictly to educational purposes, except upon the theory that there was a public purpose and some immunities might be expected from the State. By this section 13, the idea of a corporation for profit and gain is precluded even though it had not been admitted in this record.

Now with this situation let us take up the exemption statute in question. Starting with the proposition that the State was limiting the use of the property to be acquired by the corporation to a much-needed and public use, what means this exemption statute? "We say much-needed use, because we can not blind our eyes to the public history of our State. • Of such things courts take judicial cognizance. We should never lose sight of the fact that by this Act of 1849, the State was licensing the twenty-six men and their successors to solicit and receive property of all kinds (not lands alone) from charitably disposed people, but in the interest of the State was impounding every cent of it for a public purpose. It costs to run public schools, and in those days the State was not situate as it is now. But even now, were it not for the 'great institutions of learning founded, as was this defendant, it would require at the hands of the State twice its present outlay for higher education. If a reason for the fixed public policy of those days be required, herein we have it. Nor should we overlook another matter, and that is from the year 1836 to 1863 there were some fifty-four colleges chartered by the State, and in none of the charters which we have examined is the funds of the institution so thoroughly impounded for public purposes as in the charter before us. We mean by this that the language is not so stringent, and so thoroughly cutting out the idea for profit and gain. Besides these colleges, great numbers of academies and seminaries were chartered.

Going now to the act in question, the defendant contends that the word “land” as therein used should be ¡construed as “property,” and thus fit the context of the original act providing for an endowment fund for the institution. By the original act the corporation was authorized to receive all. kinds of property for its use, which use was limitedas aforesaid. When these several acts were passed the Constitution of the State said to the lawmakers: ‘ ‘ Schools and the means of education shall forever be encouraged in this State.” Encouraged how? Not by the simple permissive act of giving them a mere license to exist. The State was interested in schools and the constitutional idea was to foster and aid them in such manner as could be done.

A few lines from State v. Fisk, supra, are appropriate here: “How can it be contended that it is the policy of the State to encourage education, and to levy direct taxes upon its citizens for the purposeoffurnisbing education free, and at the same time refuse exemption to the property of educational institutions which conduce to cheapen education, and place the higher branches thereof within reach of those who would otherwise be a direct tax upon the people of the State, if they were to leave such institutions as this of the defendant, and resort to the public schools.”

The. aid provided by the Act of 1851 and other similar acts was such aid as the State could give. This Act of 1851 clearly exempts all further grants of land from taxation. It was evidently passed in the light of the fact that the college endowment was then wholly in the lands named in the act. It stands admitted that the lands mentioned in the Act of 1851 constituted the sole endowment fund of defendant at that time. We can see no good reason for the G-eneral Assembly exempting one class of property belonging to the endowment fund of the college and taxing the other class, especially in view of the fact that both classes were to be used for the same public purpose. In those days it would appear that endowments were largely made in lands. Not only so, but about the same time college after college was by its charter relieved of all kinds of taxes on all kinds of property for all time to come, and the act before us speaks of other institutions of learning. The original act authorized the gathering together of an endowment for the college. The fund thus collected was limited to a use which the State not only recognized as a. public use, but one which the State should foster and aid. To my mind when all the surroundings are considered, the public policy of the State considered, these two acts considered, and other acts about the same time are considered, it is evident that there was a legislative intent to relieve the property constituting the endowment fund of this corporation from the burdens of taxation.

In addition we have the construction placed upon the act by officials for the past half century. It is true that such construction is not absolutely binding upon the courts, but it is at least strongly persuasive. Until the levy for the taxes in suit no official had failed to look upon this statute as one of absolute exemption. As said in Westerman v. K. of P., 196 Mo. l. c. 708, this construction is by no means conclusive, yet it is at least persuasive in effect. Considering all things, we think tbe construction given by the trial court, in- this_ an exceedingly close case, is the proper one.

III. It is next urged that this statute has been repealed by subsequent constitutional and statutory provisions. The claim is made that there is a direct repeal of the law or an attempted direct repeal of the law. The question, however, has been fully settled by the adjudications of this court upon similar statutes, and we shall not re-open nor re-argue it. [St. Vincent’s College v. Schaefer, 104 Mo. 261; State ex rel. v. Westminster College, 175 Mo. 52.

It follows from the foregoing that the judgment nisi should be affirmed, and it is so ordered.

PER CURIAM.

— -The foregoing opinion from Division One is adopted as the opinion of the Court in Banc.

Lamm, J., concurs; Woodson and Brown, JJ., concur in separate opinions filed; Valliant, G. J., and Ferriss and Kennish, JJ., dissent in opinion to be filed.

SEPARATE CONCURRING OPINION.

BROWN, J.

— I agree with my learned associate Judge Graves, that tbe judgment of the trial court should be affirmed; but I do not concur in all that he has written in arriving at that conclusion.

In order to affirm the judgment, it is necessary to construe the word lands where it occurs the second time in section 1, Laws of 1851, page 64, to mean property, thus embracing both real and personal property.. It is also necessary to find that said Act of 1851 was not repealed by subsequent changes in, our organic law.

The word “land comprehends all things of a permanent, substantial nature, being a word of very extensive signification.” [Anderson’s Law Dictionary.] As ordinarily used, this word does not embrace personal property, and whether or not as found in the Act of 1851 its meaning should be so enlarged as to include personal property is the main issue before us.

To ascertain the true intention of the lawmakers of 1851, it is necessary to consider their surroundings and the conditions which called for the enactment of the law under consideration. An eminent authority has aptly said: ‘ ‘ All laws must be executed according to the sense and meaning they imported at the time of their passage.” [Endlich on Interpretation of Statutes, sec. 85, p. 115.] Words used in a statute enacted sixty years ago do not always convey the same meaning as when used in a statute of more recent date.

In the year of 1851 most of the-surplus wealth of our State was invested in lands and slaves, while bonds and stocks, now frequently used in endowing colleges, were very scarce; hence, I think there is sound reason for the presumption that by the use of the word lands in the act under consideration, the General Assembly intended to embrace every kind of surplus property which benevolent citizens might desire to donate to the cause of education, a cause then sorely in need of financial aid in our State.

Another reason which impels me to hold that the word lands as used in the Act of 1851, supra, was intended to include personal property, is that the holding of large tracts of land by corporations, whether such corporations be formed for commercial, educational or religious purposes, has always been exceedingly obnoxious to the public, as tending to prevent citizens from acquiring* homes • and I cannot conceive of any cause which could have created an intent on the part of the General Assembly to grant the right to an educational corporation to acquire and hold lands exempt from taxation and at the same time impose a tax on its personal property, the ownership of which does not materially contravene the rights or welfare of the people.

To follow the strict letter of this act would result in taxing the funds which defendant may have obtained by the sale of non-taxable lands. This would encourage defendant to invest its endowment funds wholly in lands, .to the end that it might thereby escape taxation; and I cannot bring myself to believe that any General Assembly was so unmindful of the public welfare as to intend such a result.

I am aware that we are not permitted to modify or enlarge the letter of a statute except in extreme cases, when it is necessary to do so in order to effectuate its true intent, or when, to follow the letter of the law would place upon it an absurd or impractical construction. [Cole v. Skrainka, 105 Mo. 303; State ex rel. v. Railroad, 105 Mo. App. 207.] In the case at bar, to hold that by the Act of 1851 it was intended to exempt the real estate of the defendant, and-leave its personal property subject to the burdens of taxation, would amount to convicting the General Assembly of enacting 'a very absurd law. There are many valuable rules and maxims for construing statutes-, but all ■ other guides must give way to the one paramount rule that courts should give effect to the real intent of the lawmakers. [Keeney v. McVoy, 206 Mo. l. c. 65.]

The Act of 1851, supra, purports to be a public act and provides that “all the lands that may hereafter be granted or devised to said .college, or any other institution of learning in this State, for the benefit of education, be, and the same are hereby exempted from all taxes.” This language conveys to my mind an intent to encourage donations not only to defendant, but also to other educational institutions then in existence. It is true that the title to the act names no institution of learning except defendant, hut a careful examination of the Constitution in force in 1851 reveals the fact that no titles for legislative enactments were then required.

The framers of the Constitution of 1875 evidently deemed the holding of large tracts of land by corporations to be inimical to the welfare of the people, and sought to discourage such holdings. [Sec. 6 and 7, art. 10, and sec. 7, art. 12, Constitution of 1875.] However, I do not believe that these provisions of our present organic law would create a right in the State to tax personal property of a corporation chartered for educational purposes before the Act of 1851 was passed. If this suit involved an attempt to collect taxes from real estate acquired by defendant after the adoption of the Constitution of 1875, a very different question would be presented, but one upon which it is not now necessary to express an opinion.

The defendant has the right to acquire personal property for the purposes expressed in its charter and hold same free from the burdens of general taxation; and as this suit only seeks to collect taxes on personal property of defendant, the judgment of the trial'court denying such recovery, is for the right party and should he affirmed.

SEPARATE CONCURRING OPINION.

WOODSON, J.

— I concur in all that my associate, Judge Graves, has written in this case, except the points dissented from’by Judge Brown, in his concurring opinion filed herein. I also concur in the latter opinion; and, in doing so, I wish to add, that to my mind it is clear, from reading the Act of 1851, that the Legislature intended therebly to exempt the endowment funds of the college from, taxation, and that the only reason it had for using, in the act, the word “lands” instead of the word “endowment,” was the fact that its endowment at that time consisted exclusively of lands, with but little, if any, prospects of ever acquiring any other kind of property. In those days money in this State was almost a “mysterious stranger,” and was not viewed with the all-importance that is attached to it at the present time; consequently but little importance was paid by the Legislature to money, stocks and bonds, or other forms of personal property, thinking, doubtless, that the exemption stated in the act was sufficiently comprehensive to include whatever personal property which, perchance, might be donated to that worthy institution.

DISSENTING- OPINION.

KENNISH, J.

— 1 respectfully dissent from the opinion of the court and the concurring opinion delivered in this case. In stating the reasons therefor, I shall avoid a discussion of the great educational and religious work and influence for good of the respondent, on the one hand, as well as on the other, the fact that respondent is now seeking a construction of a law which would give to it an immunity from the burdens of taxation denied to every other similar institution in this State founded since the year 1865. These are matters aside from the question directly presented for decision in the case.

The taxes sought to be collected in this suit are taxes on respondent’s personal property. Its lands are conceded to be exempt from taxation. The sole question for consideration is whether the Legislature of this State, by the Act of 1851, which exempted respondent’s lands from taxation, in speaking of “land and improvements thereon,” “lands in the counties of Mercer and Sullivan” returned delinquent for the non-payment of taxes, lands on which it was made punishable to cut timber, and “all the lands that may be hereafter granted to said college,” intended to include within the meaning of the word “lands,” so used, moneys, notes, bonds or any other form of personal property. And in the determination of this question we are to be governed, under the rules of law, by what the Legislature did in fact say, and not by what the court would have said under the circumstances, had it, instead of the Legislature, been making the law.

The Act of 1851, to be construed, is set out at length in the opinion of the court and need not be reproduced here. It appears from this act that in the year 1851 respondent, incorporated two years before, owned lands in Clay, Grundy, Mercer and Sullivan counties in this State, in the latter two of which taxes on its lands were then delinquent, and that by the provisions of said act respondent was granted an acquittance from such taxes.

The following references to this act appear in the House Journal of the Sixteenth General Assembly, 1850, namely, at page 231 of the appendix:

“Report of the Committee on Education upon the Petition of the Trustees of William Jewell College, Accompanied by Bill for Relief of said College.
“The committee on education, to whom was referred the petition of the trustees of William Jewell College praying that lands belonging to said college may be exempted from taxation and protected from trespasses, have had the same under consideration and beg leave to
“report.
“That it appears that said college, besides the lands donated to them adjoining the town of Liberty, for a college location, they have had donated to them, for the canse of education, about four thousand acres of land in the counties of Grundy, Mercer and Sullivan,. and your committee believe that these lands, and all others that may be donated for the cause of educations, should be exempted from taxation so long as such lands may. be owned by said college, they therefore recommend the passage of the accompanying bill.
“McPherson, Chairman.”

And at page 323, is the following:

“Mr. McPherson, from the same .committee, to which were referred the petition of the trustees of William Jewell College, asking exemption from taxation of college lands, reported by bill entitled,
“An act for the benefit of William Jewell College;
“Which was read a first time, rule suspended, read a second time;
“When Mr. Clark offered the following amendment;
“Amend by way of rider as follows:
“In section 1, after the words, ‘to said college,’ insert ‘ or to any other institution • of learning in this State;’
“Which was read a first time, rule suspended, read a second time;
“When the bill as amended was read a third time and passed.”

Prom the foregoing sidelight thrown on this legislation, together with the record in this case, it is disclosed that the “Act for the Benefit of William Jewell College” was introduced and passed by the General Assembly of this State in response to a petition “for the relief of said college,” presented by the trustees thereof; that respondent had no personal property at the time of the passage of said act. And the conspicuous absence of another fact also appears, which should not be overlooked, in view of the emphasis given to and the inference sought to he drawn from the failure or omission of the taxing authorities to tax the property of the respondent “for over fifty years.” Although the financial officers of respondent testified in the case, and although the evidence was undoubtedly available, it is not shown anywhere in the record when, after 1851, respondent did first own personal property. It is obvious that if respondent did not own personal property until long after the exemption of its lands from taxes by said act, so that its name would not appear upon the tax books, even if its personal property were conceded to be taxable, then the continued omission of such officers to tax respondent, after the,acquisition of personal property, is of little or no significance, as showing the contemporaneous construction of the Act .of 1851.

I shall not enter upon a discussion of the rules of construction and interpretation of laws, which may be invoked in a proper case to ascertain the legislative intent, and for the evident reason that resort to such rules is permissible only when the language used is susceptible of different meanings, or is ambiguous, and therefore supplies the necessary doubt as a basis for construction. When the Legislature has used plain, ordinary words, of well recognized meaning, as in the act before us, there is nothing left for construction, and it is not the province of the court to go outside of the act itself and resort to extrinsic facts and circumstances, in order that immunity from taxation may be extended to a class of property not exempted by the language of -the act. •

This well established principle of law is given expression in Lewis’s Sutherland on Statutory Construction (2 Ed.), vol. 2, sees. 366 and 367, as follows: “The certainty of the law is next in importance to its justice. And if the Legislature has expressed its intention in the law itself, with certainty, it is not admissible to depart from that intention on any extraneous consideration or theory of construction. ‘It is beyond question the duty of courts in construing statutes to give effect to the intent of the lawmaking power, and seek for that intent in every legitimate way. But . . . first of all in the words and language employed; and if the words are free from ambiguity and doubt, and express plainly, clearly and distinctly the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation.’ The statute itself furnishes the best means of its own exposition; and if the sense in which words were intended to be used can be clearly ascertained from its parts and provisions,' the intention thus indicated will prevail without resorting to other means of aiding in the construction.”

It is not questioned that, as stated in the opinion in this case, “the cardinal rule of construction is that which requires the legislative intent to be ascertained and to this all other rules are subservient,” but it is equally cardinal that, “this intention, however, must be the intention as expresséd in the statute, and where the meaning of the language is plain it must be given effect by the courts or they would be assuming legislative authority.” [36 Cyc. 1106.]

In the charter granted by the Legislature to respondent, apt words were employed, conferring upon the trustees of the respondent the power “to hold by gift, grant, demise, devise or otherwise, any lands, tenements, hereditaments, moneys, rents, goods or chattels of what kind soever the same may be,” and in other acts of the General Assembly which passed the Act of 1851, charters were granted similarly giving power to acquire and own lands and personal property, showing clearly that when the Legislature intended so doing it did make use of the words “lands” and “personal property,” in their plain,, usual and ordinary sense. This fact, which under all rules of discursive controversy, would be a persuasive reason for holding that the word “land” was used and the words “personal property” omitted intentionally in the act before us, strangely enough, is seized upon by respondent and urged as a circumstance in support of the opposite contention that personal • property was intended to be included within the meaning of the word land.

But the strength of the State’s case does not rest alone in its insistence upon the use of the word ‘ lands ’ ’ in the plain and ordinary sense as usually understood. It-goes further and urges in support of its position the language and provisions of the law.

It surely cannot be maintained that the words “lands and improvements thereon,” in the first section, and the words “lands belonging to said college in the counties of Mercer and Sullivan,” in the second section, and the lands referred to in the third section, on which it is made an offense to cut or remove timber, were intented to include “ moneys, rents, goods or chattels,” and no valid reason can be given why the word was used in any different sense in the clause “and all lands that may be hereafter granted or devised to said college,” in the first section. Indeed, the strongest confirmation that the words last quoted were used in the same sense as in the other provisions of the act, is found in the fact that the report of the committee, who had before them the petition of the trustees, speaks of respondent's “about four thousand acres of land, situate in the counties of Grundy, Mercer and Sullivan, and your committee believe that those lands and all others that may be donated for the cause of education,” etc. Can it be doubted that the words “and all others,” as thus used, meant all other lands such as were owned in the counties named and such as had “improvements thereon,” and on which persons were forbidden to cut timber? Can it be maintained that the Legislature exempted personal property by the use of the words “ lands and improvements thereon,” or that it intended to penalize the cutting of timber on “moneys, rents, goods and chattels?”

It is stated in the concurring opinion herein that there may be a question as to the exemption from taxes, under the provisions of said act, of lands acquired by respondent since the adoption, of the Constitution of 1875. As the taxes in controversy are on personaL property which may have come to respondent since that date, for aught that appears to the contrary, then we have the possibility suggested of a construction by this court of an act purporting to exempt land from taxes which would leave lands subject to taxation, while at the samé time exempting personal property.

It is shown by the entries above cited from the House Journal, and by the act itself, that respondent owned lands upon which taxes were due and delinquent and as to the legality of which no question was raised; that respondent appealed to the Legislature of this State, through the petition of its trustees, asking relief from the payment of its taxes and exemption of its lands from taxation in the future. That the' Legislature generously granted the petition and an acquittance from the taxes. Now respondent comes into court and says that because it “accepted” this bounty which it petitioned for, a consideration moved from it to the State which made the act of the State and.respondent’s acceptance a contract under which respondent is entitled to assert rights as against the State, its benefactor iu this transaction.

On the other hand appellant maintains that the Act of 1851, being a mere immunity and privilege, not based upon any valid consideration, did not constitute a contract by which vested rights aro,se and, therefore, that it was subject to repeal at will and was repealed by later inconsistent constitutional and statutory provisions.

Appellant’s position upon this point is founded oh reason and is not without authority to support it, hut my confidence in the correctness of the ground upon which this dissent is already based is such that I am not disposed to look for other reasons and, therefore, do not pass upon this contention.

There are few words of more frequent use in the laws Of this State than the word “lands” and few in use in common speech in which the meaning is so well understood.

It is defined by section 8057, Revised Statutes of 1909, as 'follows: ‘ ‘ The terms ‘real property ’ or ‘ premises,’ or ‘real estate’ or ‘lands,’ shall be deemed to be coextensive with lands, tenements and hereditaments.” By the same section the words “personal property” and ‘ ‘ property ’ ’ are defined as follows: ‘ ‘ The words ‘personal property’ shall include money, goods, chattels, things in action, and evidences of debt. The word ‘property’ shall include real and personal property.”

In the laws of this State in force at the time of the passage of the act before us the word “lands” is found used in the same sense as thus defined and as contended for by the appellants, in many instances, and no case has been found or called to our attention in which it is used in the sense of including personal property. The sense in which it is thus used in the law is identical with the meaning given to it in ordinary speech and as generally understood. In my opinion the word was used in that sense in the Act of 1851 and, if so, the taxes were legal and the judgment should be reversed.

Vallicmt, G. Jand Ferriss, J., concur in this opinion.


author: ROY, C. PER CURIAM.

text:
    Ex parte CALVIN BRANCH, Petitioner.
    Division Two,
    May 23, 1911.
    1. VAGRANCY: Statute Constitutional. The statute concerning vagrancy (Sec. 4789, R. S. 1909) does not prohibit anyone from being without visible means of support, or from being idle, or from loitering around gambling houses, saloons, etc.; nor can any one of these things in and of itself and alone be punished as a crime. But when they all three meet in one person at the same time they constitute sucn person a vagrant, and under the statute he may be punished, and so interpreted the statute is constitutional.
    2. -: -: Indictment. An indictment charging that petitioner on a certain day “and on divers other days and times was found unlawfully loitering around houses of ill-fame, gambling houses, and place where liquors were sold and drunk, without any visible means of support,” charges a crime under the statute; and a petitioner who has been convicted thereunder cannot, on the ground that the statute authorizing said in.dictment is unconstitutional, be discharged upon a writ of habeas corpus.
    Habeas Corpus.

      Petitioner remanded.

      Willis H. Clark for petitioner.
    (1) That portion of Sec. 2228, R. S. 1899', which provides that “every person who may he found loitering around houses of ill-fame, gambling houses, or places where liquors are sold o.r drunk, without any visible means of support, . . . shall be deemed a vagrant, and upon conviction thereof, shall be punished,” etc., is in conflict with the natural right of personal liberty inherent in the people and contravenes the provisions of section 4 of article- 2, of the Constitution of Missouri. St. Louis v. Roche, 128 Mo. 541; Ex parte Smith, 135 Mo. 223; State v. Meyers, 174 Mo. 352; St. Louis v. G-loner, 210 Mo. 502; In re Fletcher, 157 Mo. 125; Ex parte Harrison, 212 Mo. 88. (2) Such legislation is also in contravention of sections 11, 21, 30 and 31 of article 2 of the Constitution guaranteeing the people against seizure of their persons without probable cause, against the deprivation of their property for public use, against the deprivation of life, liberty or property without due process of law, and against slavery or involuntary servitude. Cases cited under point one.

      Seebert G. Jones and Forrest G. Ferriss for respondent.
    (1) Section 4789, R. S. 1909', defining vagrancy and punishing vagrants, upon which the conviction of petitioner was based, has been on our statute books for thirty-one years in its present form, first appearing as Sec. 1568, R. S. 1879', and in principal substance it has been our statutory law for seventy-five years. Laws 1835; Laws 1845, p. 563; R S. 1855-, p. 1557; Wagner’s Statutes, chap. 141; R S. 1879, sec. 1568; R. S. 1889, sec. 3841; R S. 1899, sec. 2228. (2) The constitutionality of such or similar vagrancy statutes has never heretofore been brought directly in issue before the court, but it has been recognized in the following cases: In re Thompson, 117 Mo. 83; State v. Canton, 43 Mo. 48. (3) Said statute defines an offense against public peace, morality and decency, and its enactment was pursuant to the general welfare on the lines of sound public policy. Freund’s Police Power, pp. 97, 99, secs. 97, 99; Tiedeman’s Limitations of Police Power, p. 117, sec. 47; Commonwealth v. Daugherty, 137 Mass. 245; Carter v. State, 126 Ga. 570: (4) Vagrancy statutes have been upheld as constitutional in other States. Re William Stegenga, 1331 Mich. 55; Ex parte McCue, 96 Cal. App. 110; State v. Austin, 114 N. C. 855; Byers v. Commonwealth, 42 Pa. St. 89; State v. ITogan, 63 Oh. St. 208; People v. Fox, 77 N. Y. App. 245; People v. Forbes, 4 Park Crim. (N. Y.) 611; State v. Maxey, 1 McMillin (S. C.) 501; State v. Kenilworth, 69 N. J. L. 114; Matter of Glenn, 54 Md. 572.
   ROY, C.

— -This is an original proceeding by habeas corpus, instituted in this court, to test the constitutionality of .section 4789, Revised Statutes 1909, being section 2228, Revised Statutes 1899, which is as follows :

“Every person who may be found loitering around houses of ill-fame, gambling houses, or places where liquors are sold or drunk, without any visible means of support, or shall attend or operate any gambling device or apparatus, or be engaged in practicing any trick or device to procure money or other thing of value, or shall be engaged in any unlawful calling whatever, and every able-bodied married man who shall neglect or refuse to ■ provide for the support of his family, and every person found tramping or wandering around from place to place without any visible means of support, shall be deemed a vagrant, and, upon conviction thereof, shall be punished by imprisonment in the county jail not less than twenty days, or by fine not less than twenty dollars, or by both such fine and imprisonment. ’ ’

It appears from'the sheriff’s return that the petitioner was convicted on an information charging “that Calvin Branch in the city of St. Louis on the 9th day of July, 1907, and on divers other days and times was found unlawfully loitering around houses of ill-fame, gambling houses and places where liquors were sold and drunk, without any visible means of support, contrary,” etc.

It is contended on the part of the petitioner that said section is in contravention of section 4 of article 2 of the Constitution of this State, which is as follows:

‘ ‘ That all constitutional government is intended to promote the general welfare of the people; that all persons have a.natural right to life, liberty and the enjoyment of the gains of their own industry; that to give security to these things is the principal office of government, and that when government does not confer this security, it fails of its chief design.”

It is also contended that said section is in conflict with sections 11, 21, 30' and 31 of article 2 of said Constitution, guaranteeing the people against seizure of their persons without probable cause against deprivation of their property for public use, against the deprivation of life, liberty or property without due process of law and against slavery or involuntary servitude.

I. There has been no serious attempt on the part of petitioner to show wherein said section 4789' is contrary to either section 11, 21, 30, or 31 of article 2 of our Constitution, and we will not devote any time to that subject, as the merit of the petitioner’s ease seems to be confined to the question as to whether said section of the statute is contrary to section 4 of article 2 of our Constitution.

II. By raising the question of the constitutionality of said section 4789’, the petitioner challenges the right of the Legislature to punish vagrancy as a crime.

As has been said by one of old, “Before we enter upon a discussion about a thing, we should clearly and concisely define what that thing is.”

Webster defines a vagrant as “one who strolls from place to place; one who has no settled habitation; an idle wanderer; a sturdy beggar; an incorrigible rogue; a vagabond.”

The Century Dictionary says that at the present time the ordinary meaning of the word in law is “an idle stroller, a vagabond, a loafer, a tramp.”

Freund in his work on Police Powers, sec. 99', says: “It seems that the criminality rests upon a combination of three circumstances; the absence of lawful means of support, the neglect to secure employment and the offensive public exhibition of such conditions. ’ ’

Tiedeman says, on page 117 of his work on Police Powers: “In the old English statutes they are described as being ‘such as wake on the night and sleep on the day and haunt customable taverns and ale-houses, routs-about, and no man wot from whence they come nor whither they go,’ and tfie same author adds further on ‘the gist of the offence therefore is the doing of these things when one has no visible means of support, thus threatening to become a public burden.’ ”

Now that we know what a vagrant is from the above definitions, it needs only that we lay the section of the statute in controversy alongside of those definitions to see that the Legislature has not by that section, in so far as it affects this case, attempted to punish anything but vagrancy. That law does not prohibit any one from being without visible means of sup-. port, or from being idle, or from loitering around saloons or gambling houses. Neither one of those things in itself and alone can be punished as a crime, but when they all three meet in one person at the same time they constitute a vagrant, who has been very appropriately described as “the chrysalis of every' species of criminal.”

The authorities cited by petitioner either do not apply to vagrancy, or are cases where it was attempted to punish as vagrancy that which fell far short of it as above defined.

On the contrary, the legislative right to punish vagrancy has been asserted since the reign of Edward III and has been in our statutes at least since 1835 and its constitutionality recognized .by this court in the cases of In re Thompson, 117 Mo. 83; State v. Canton, 43 Mo. 48; St. Louis v. Babcock, 156 Mo. 148.

It follows that the petitioner must be remanded to the custody of the sheriff of the city of St. Louis and it is so ordered.

Bond, G., concurs.

PER CURIAM.

— The foregoing report of the Commissioners is hereby adopted as the opinion of the court.