text:
    THE STATE ex rel. S. M. QUICK, Collector of the Revenue of Dade County, v. F. R. PEARSON, Appellant.
    Division One,
    December 22, 1917.
    1. TAXATION: In School Districts: Residence: Situs of Property. Personal property is taxable in the school district in which the owner resides, and not in the district in which it actually is if that be a different district from the owner’s residence. The only exception to this rule is that the property of non-resident wards of the probate court is to be taxed in the school district of its ■situs. This rule is clear when Sections 11337 and 11355 are read together, as they must be.
    2. -: -: -: -: Philosophy of Taxation. The protection of the law of the locality gives the right to tax property, and in harmony with this principle the school facilities afforded at the home of the taxpayer are an important element justifying the taxation of his personal property in that district.

      Appeal from Dade Circuit Court. — Ñon. B. G. Thurman Judge.
    Affirmed.

      Thomas W. Martin for appellant.
    (1) The rule in Missouri is that tangible personal property is assessable and taxable where it is actually located, whether that situs be the domicile of the owner or elsewhere, unless changed by statute. Plattsburg v. Clay, 67 Mo. App. 497; School District v. Bowman, 178 Mo. 654; Leavell v. Blades, 237 Mo. 695; State ex rel. v. County Court, 47 Mo. 594; St. Louis v. Perry Co., 40 Mo. 589; State ex rel. v. County Court, 69 Mo. 454; State ex rel. v. Bruce, 187 Mo. App. 607. (2) Primarily and fundamentally the assessment and collection of taxes are proceedings in rem, and the right to tax personal property at the domicile of the owner arose out of a mere fiction of law expressed in the maxim “mobilia seguuntur personam” (movables follow the person). This maxim our courts say is applied chiefly, if not exclusively, to the distribution of an intestate’s estate and not primarily as a rule for the taxation of personal property; and even if applied as a rule for the taxation of personal property, the fiction gives way, and especially so under the modern doctrine of taxation, when the facts show that tangible personal property has an actual situs separate from the domicile of the owner. State ex rel. v. County Court, 47 Mo. 594; School District v. Bowman, 178 Mo. 658; Leavell v. Blades, 237 Mo. 708; Plattsburg v. Clay, 67 Mo. App. 499; Corn v. Cameron, 19 Mo. App. 580. (3) Now, as to the law generally, Cyc. lays down the rule that personal property for the purpose of taxation has its situs at the domicile of the owner, although such property may actually be elsewhere, but qualifies the general rule by saying that according to the rule now generally prevailing cattle, horses, and other domestic animals are assessable for taxation at the place where they are kept or herded during the greater portion of the year, or usually, irrespective of the owner’s residence. 37 Oyc. 952. (4) Again, in 27 Am. & Eng. Ency. Law (2 Ed.), page 650, it is stated that “the modern tendency under constitutions and statutes declaring the State’s taxing power to extend to all property within its jurisdiction is to consider the actual location of the articles taxed;” hut it is clear that this statement of the law applies to tangible and. not to intangible personal property, such as simple debts, the latter class being assessable for taxation at the domicle of the owner by the fiction of law “mobilia, sequuntur personam.” (5) Both from Cyc. and Am. & Eng. Ency. Law it seems clear that no matter what the original rule may have been, as to requiring the assessment of personal property at the domicile of the owner by fiction of law, such rule no longer exists as to tangible personal property which has a definite and fixed situs; while the Missouri cases above cited announce the doctrine that such fiction does not exist in Missouri as to tangible personal property having a separate situs from the domicile of the owner. (6) The sole question in the case of State ex rel. v. Shepherd, 218 Mo. 658, was whether Shepherd, who resided on a farm and was himself a single man, and on account'of the age and infirmity of his parents lodged with them at their home in the city of Plattsburg, had his legal residence in the school district in the city of Plattsburg or in the school district in which his farm was located. No controversy arose over the character of the property as to whether tangiblé or intangible, or as to whether such property should be taxed at its situs or at the domicile of the owner, counsel conceding without controversy same should be taxed at the domicile of the owner, and the court merely cites authorities given by counsel in' support of their concession. The cases so cited do not, however, support the proposition that tangible personal property is assessable and taxable at the domicile of the owner when such property has an actual situs separate from the owner. (7) The various acts of the Legislature touching the subject of taxation support the theory that tangible personal property is assessable and taxable at its situs unless otherwise provided by statute. Sec. 11337, R. S. 1909, requires personal property to be taxed in the county in which the owner resides. This is not made to apply to any other taxing unit or subdivision than the county, and the very fact of its enactment presupposes the existence in this State of the principle that tangible personal property is taxable at the place of its situs. By reference to the case of Leavell v. Blades, 237 Mo. 705, the court will observe that the above section of the statute was enacted by the Legislature on account of the decision in the case of State ex rel. v. Howard County Court, 69 Mo. 454, in which the court held that the twenty-two Howard County bonds held by Mrs. Dunnica, and sent out of the State to New York for safe-keeping and not to avoid taxation, were not taxable in Missouri, not being in or having a situs in Missouri at the time such bonds were assessed for taxation, although the owner was at the time a resident of Howard County, Missouri. Again in Sec. Í1355, R. S. 1909, it is provided that personal property of an estate in charge of an administrator, executor, guardian or other person, shall be taxable by and for the benefit of the school district where the deceased resided at the time of his death, or in case of a minor, in the district in which the ward or owner resides on the first day of June of the year in which the assessment is made, but if the ward or owner is a non-resident of the county, then the property is taxable at the location of the daté of the appointment of the guardian or other person. This, however, applies only to the estates of deceased persons and minors, and therefore is another recognition of the existence of the rule in Missouri that “tangible personal property is taxable as its situs,” except when changed by statute. (8) The case of Plattsburg v. Clay, 67 Mo, App. 497, cited above, is an absolutely flat authority on our very question, the facts being almost identical. The only difference being that in the Plattsburg case they sought to tax the tangible personal property which was not within the city of Plattsburg,' but -having a separate situs outside of the corporate limits, to the owner, who resided in the city of Plattsburg, for city purposes, while in our case it is sought to tax the tangible personal property of appellant in the Lockwood School District (Lockwood being a city of the fourth class), where he resides, instead of in the rural school district where such property has its actual situs. The statute then in force gave the city of Plattsburg the right to tax property, real and. personal, within the city. The word “located” used by the court in rendering its decision in the Plattsburg case is not in the statute then -in force, nor has it ever been in the statute. With the statute as shown above the court held that these cattle were taxable at 'their situs on the farm and not in the city of Plattsburg, where the owner resided, and the court in reaching its decision quotes the very able reasoning of Judge Bliss in the case of State ex rel. v. St. Louis County Court, 47 Mo. 594. . (9) The Constitution makes school districts distinct and separate taxing entities, the same as the State, the county and the cities, and the statutes recognize the separate corporate entity of school districts for taxing and all other purposes, hence it follows that any rule of law for the taxing of personal property (not controlled by statute) is as applicable to school districts as to State, county or city. School District v. Bowman, 178 Mo. 658; Leavell v. Blades, 237 Mo. 700.

      Fred L. Shafer for respondent.
   BROWN, C.

This is a suit by the collector of the revenue for Dade County to recover certain taxes amounting to $17.92 for the use of Lockwood School District in said county, for which judgment was given in his favor by the circuit court, from which this appeal was taken. It is submitted here upon an agreed statement of facts, which is as follows:

It is stipulated and agreed between the parties hereto that the facts in this case are as follows:

“1. That the defendant F. R. Pearson is now and was at the time of the levy and assessment of the taxes sued on in this action a resident of and in the Lockwood School District in the city of Lockwood, Dade County, Missouri; that at all such times he was and is the owner of a farm situate in School District No.--in Dade County, Missouri, and that he was at all times mentioned the owner of horses, mules, cattle, hogs and other animals, and farming implements and tools, all of which were kept on and used in connection with said farm, which said farm defendant ran and operated, and that none of said property was ever in or kept in the said Lockwood School District; that the taxes herein sued for were assessed and levied against said stock and farm implements and tools to the defendant in Lockwood School District, Dade County, Missouri; that defendant protested against such an assessment and levy, for the reason that said property was located in and kept in said School District No. - on his said farm and had its definite situs and location there, and for that reason defendant asked that said property be assessed and levied in said School District No.-and not in the Lockwood School District, where such property had never been kept or located.
“2. That said taxes have not been paid by defendant, for the reason that same were assessed and levied in Lockwood School District instead of in School District No.-where the same has at all times been kept on and used in connection with defendant’s said farm.”

The only question presented is whether the stock and implements kept and used on appellant’s farm in another school district in the same county were taxable in the district of appellant’s residence. If so the judgment must be affirmed. Otherwise it must be reversed.

While the taxation of property situated within the jurisdiction of the State is a matter of legislative concern, subject only to the limitations imposed by the Constitution, yet the statutes to which we must look for the authority to exercise it are usually founded upon and embody certain principles to which we must look for aid in their interpretation. The fiction that the situs of personal property is the domicile of the owner, expressed in the maxim “mobilia sequuntur personam” has always been of extensive application, and this case depends largely upon the extent to which it has been adopted in the revenue laws.of this State.

Section 11337, Revised Statutes 1909, provides that “all personal property of whatever nature and character, situate in a county other than the one in which the owner resides, shall be assessed in the county where the owner resides, except as otherwise provided by Section 11355.”

This provision is a sweeping one so far as it establishes the doctrine that personal property, tangible as well as intangible, follows the owner for purposes of taxation. The county was considered the unit of taxing authority as to all personal property in the State, and considering this section alone it leaves no room for discrimination between school districts situate in other counties of the State than that in which the owner resides and those in the county of his residence.

Should it be suspected that the Legislature did not have school taxes in contemplation in the enactment of this section, we turn to Section 11355 to which it refers ,us, and find that the very question was considered. It provides that the taxation of personalty of decedents shall be by and for the school districts in which the decedent resided in such county at the time of his death, and that personalty in charge of guardians or others in the probate court shall be taxable by and for the school district in such county in which the ward or owner resides at the time fixed for the assessment.

These two sections (11337 and 11355) taken together, as they must be, in conformity with the terms of Section 11337, leave no possible doubt that it was the intention of the Legislature, well expressed, that all personal property shall be taxed for school purposes in and for the school district in which the owner resides, with the single exception that the property of non-resident wards of the prohate court of any county shall he taxed in and for the school district of its situs in that county. '

This statutory rule is in conformity with the principle stated by this court in Leavell v. Blades, 237 Mo. 695, l. c. 707, that “it preserves intact the philosophy of taxation, which' is that the protection of the law of the locality gives the right to tax the property, and that where that protection in nowise exists the right to tax fails.” Upon this principle, the school facilities afforded at the home of the taxpayer would seem an important element in the justification of the tax.

In accordance with these views, and following our own holding in State v. Shepherd, 218 Mo. 656, the judgment of the circuit court is affirmed.

Railey, C., concurs.

PER CURTAM: — The foregoing opinion of Brown, 0., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    THE STATE ex rel. GREENE COUNTY, Appellant, v. J. J. GIDEON, Mayor, and E. F. JAMES et al., Commissioners of CITY OF SPRINGFIELD.
    Division One,
    December 22, 1917.
    1. LEGISLATIVE'ACT: History. The journals of the two bouses of the'General Assembly may be resorted to to show the history of a legislative act in its progress through them.
    2. -: Irreconcilable Conflict Between Parts. Where two parts of a legislative act as published are in irreconcilable conflict, the part that was adopted as an amendment after the bill with the other part had passed one house, as shown by the journals, will be held to be in force, and the other null and void for repugnancy.

      3. DRAMSHOP LICENSE: County’s Share in Local Option County. Where the statute pertaining to cities haying a commission form of government provides that the city may tax dramshops therein and of the money collected from them “there shall be paid to the State and county from each dramshop license the same amount that is paid to the State and county from dramshops in other cities of the county in which said city of the second class is situated,” and the Local Option Law prohibiting dramshops is in force in the rest of the county outside of such city, the city is not required to pay any sum to either State or county, because it is required to pay the same amount as other cities in the county, and they pay none. The act cannot be enforced because it designates no means by which the State’s and county’s share may be ascertained.
    4. -: -: As Formerly Fixed by County Court. Nor can the order of the county court made prior to the adoption of the Local Option Law and fixing dramshop licenses in the cities of the county be used for the purpose' of ascertaining what portion of the dramshop taxes collected in said city should be paid to the county. The power of the county court under such former law to fix dramshop licenses was but a means or incident to the enforcement of the then law, and that law and all its incidents were abrogated as to the rest of the county when the Local Option Law was adopted and put in force.
    Appeal from Greene Circuit Court. — Hon. Arch A. Johnson, Judge.
    Affirmed.

      Frank W. McAllister, Attorney-General, S. P. Hoiuell, Assistant Attorney-General, and Warren L. White for appellant.
    (1) Relator and respondents agree that the history of the passage of the Act of 1915 shows that it was the intention of the Legislature to enact the second provision found in that hill. Ex parte Helton, 117 Mo. App. 609. (2) It was obviously the intention of the Legislature in 1915 to provide for the payment to the State and county a part of the money derived from dramshop licenses. That intent should be made effective. State ex rel. v. McQuillin, 246 Mo. 534; State ex rel. v. Rippee, 177 Mo. App. 245; State ex inf. v. Railroad, 238 Mo. 613; St. Louis v. Christian Bros. College, 257 Mo. 541; Asphalt Co. v. Hayward, 248 Mo. 286; Sibley County v. Gibbon, 131 N. W. 786; County v. Aberdeen, 31 N. W. 735. If -the county is to receive the same amount as is paid by licensed dramshops in other cities of the county, that means that the county is to receive the amount that has been fixed by an order of record of the county court as the county dramshop license under See. 7199, R. S. 1909. It was obviously not the intention of the lawmakers that the State and county should be deprived of any part of the dramshop license money; and the fact that there are no other cities in Greene County wherein there are licensed dramshops cannot defeat the intention of the Legislature.

      Fred A. Moon for respondents.
    (1) Where there is an irreconcilable conflict between two different parts of the same act, the last in order of position must control. Peterson v. People, 129 111. App. 57; Howard v. Barger & A. R. Co., 29 Atl. 1101; Quick v. Whitewater Tp., 7 Ind. 570; 36 Cyc. 1130; Westport ex rel. v. Jackson, 69 Mo. App. 153; 26 Am. & Eng. Eney. Law, p. 619; Real Est. Co. v. Reiter, 47 Neb. 592; Ex parte Hewlett, 22 Nev. 33; Toper v. State, 84 N. W. 650; Scott v. Railroad, 38 Mo. App. 530. (2-) If said subdivision 40th were valid and constitutional relator would not be entitled to recover thereunder, for the reason that there were no other dramshops in other cities of Greene County paying a State and county license, (a) The rule of construction prescribed by statute is: “First, words and phrases shall be taken in their plain or ordinary and usual sense.” Sec. 8057, R. S. 1909. (b) The universal rule laid down by the courts is that “in the interpretation of statutes .words in common use are to be construed in their natural, plain and ordinary signification. It is a very well settled rule that so long as the language used is unambiguous, a departure from its natural meaning is not justified by any consideration of its consequences, or of public policy; and it is tbe plain duty of the court to give it force and effect.” 36 Cyc. 1115; State ex rél. v. Gammon, 73 Mo. 421; State v. Riley, 203 Mo. 187; Henry & Coaltsworth Co. v. Evans, 97 Mo. 55; McFarland v. Railroad, 94 Mo. App. 340; Smith v. Railroad, 143 Mo. 37; Martin v. Hunter, 14 U. S; 326; Railroad v. Clark, 53 Mo. 216; State ex rel. v. Wilder, 206 Mo. 549; Warren v. Barber Co., 115 Mo. 572; State v. Wellott, 54 Mo. App. 315; State v. Hays, 78 Mo. 605; State v. Court, 128 Mo. 427; Johnson v. Railroad, 196 Ü. S. 1; Moorshead v. Railroad, 203 Mo. 165; 36 Cyc. 1106; Lewis’s Sutherland on Statutory Construction (2 Ed.), sec. 487; In re King’s Estate, 105 Iowa, 320; Randall v. Railroad, 12 S. E. 605; Turner v. Cross, 18 S. W. 578. (c) Courts have nothing to do with the wisdom or policy of a law when the meaning is free from doubt. Lewis’s Sutherland on Statutory Construction (2 Ed.), sec. 487; Fishing Co. v. George & Barker Co., 69 Pac. 439; Clark v. Railroad, 219 Mo. 534; State v. Railroad, 219 Mq. 164; State v. Mills, 161 Mo. App. 185; Donaldson v. Donaldson, 249 Mo. 242.
   WOODSON, J.

This is a mandamus proceeding instituted in the circuit court of Greene County, by the appellant, to compel respondents to allow, audit and pay a claim made by the county to a portion of the dramshop license levied and collected by the City of Springfield.

The trial court decided the case against the county, and in due time and in proper form it appeáled the cause to this court.

The facts of the case are these: The city of Springfield is a city of the second class, located in Greene County, and is operating under a commission form of government which was enacted in 1913 (Laws 1913, p. 420), and the respondents are the commissioners thereof. The general powers of such cities are contained in Section 8 of said act, beginning at page 426 and ending at page 439, .and are composed of 74 subdivisions. Subdivision 40 of said section is the one, involved in tiiis case, In so far as material to this ease, the first clause of said Section 8 is as follows: .

“Sec. 8. Every city of the second class shall have power by ordinance, not inconsistent with the Constitution, or any law of this State, or of this article :”

And the fortieth subdivision thereof reads:

“Fortieth: To have the exclusive power to restrain, suppress, regulate, license and tax dramshops and to revoke dramshop licenses.”

At The time of and for many years prior to the enactment of the act authorizing a commission form of government, local option outside of Springfield was in force in said county.

Subsequently, in the year 1915, the Legislature passed an act amending Subdivision 40 of said Section 8 of the Act of 1913, which reads as follows:

“Be it enacted, etc. Sec. 1, etc. That .the fortieth subdivision of Section 8 of an act entitled, ... be and the same is hereby repealed and that a new subdivision of said section to be numbered Fortieth be and the same is hereby substituted therefor, reading as follows, to-wit: FORTIETH: To have the exclusive power to define, regulate, restrain, repress, license and tax dramshops and to revoke dramshop licenses, and to regulate and control the giving or selling intoxicating liquors at any place or places in such cities: Provided, that for every dramshop license issued by a city of the second class it shall pay to the State the sum of two hundred dollars per annum in quarterly installments, to the county for county purposes the sum of four hundred dollars per annum in quarterly installments, and to any special road district in which such city may be located five hundred and fifty dollars per annum in quarterly installments, and that the balance shall be paid into the treasury of such city for municipal purpqses. Provided, further that no special road district in which such city may be located shall be entitled to any part of the amount paid by such city to the county.”

Then the entire Section 8 is again added, including the 74 subdivisions, the act continuing to read:

“Sec. 8. Every city of the second class shall have power by ordinance, not inconsistent with the Constitution, or any law of this State, or of this article:
“First, Etc.,
“Fortieth: To have the exclusive power to restrain, suppress, regulate, license and tax dranashops, and to revoke dramshop licenses, and to regulate and control the giving away or selling of intoxicating liquors at any place in such cities. Of the amount levied and collected from dramshops there shall be paid to the State and county from each dramshop license the same amount that is paid to the State and county from dramshops in other, cities of the county in which such city of the second class is situated, and to the special road district there shall be paid $275 every six months, the balance to go to the city.”

It is, not out of .place here, to state that it is thus seen that this Act of 1915 contains two subdivisions or clauses, each designated as the fortieth, which are materially different in language and meaning.

The city of Springfield upon becoming a city of the' second class with the charter powers before mentioned fixed the amount of dramshop licenses at $2000 per year, or $500 per, quarter, which sum the city has ever since been collecting from each of its thirty dram-shops. The city has paid the State and county no part of the money so collected.

The petition is in two counts. The first is based upon Section 1 of the Act of 1915, providing for the payment to the State of $200 per annum in quarterly installments; and the second count is bottomed in the fortieth subdivision thereof, providing for the payment to the county the same amount that is paid by licensed dramshops in other cities of the county, and sets out an order of the County Court, made prior to the adoption of local option in that county, fixing dramshop licenses therein at $750 per year, of which one half or $375 was set apart for county purposes.

The commissioners of the city as such constitute the city council thereof, with full power or authority to allow, audit and pay all lawful claims against the same.

The respondents, by their return, set up the following reasons why they should not be compelled to audit and allow relator’s claim:

First: The two parts of the Act of 1915 quoted above are conflicting so that one destroys the other and it is impossible to ascertain the legislative intent.

Second: The Act of 1915 violates Section 28 of Article 4 of the Constitution, in that it provides for the collection and distribution of revenue for State and county purposes, which is not germane to the title of the act.

Third: The Act of 1915 violates section 1 and 10 of Article 10 of the Constitution, as it requires the cities to levy and collect State and county taxes.

Fourth: The first provision found in the Act of-1915 is invalid under section 34 of Article 4 of the Constitution, because the section attempted to be amended is not set forth in full as amended.

Fifth: The history of the passage of the Act of 1915, which is set out in the return, shows that it was the intention of the Legislature to enact the second provision (the one found on page 353. Laws 1915).

Sixth: The last mentioned part of the Act of 1915 violates Sections 53 and 54 of Article 4 and Section 7 of Article 9 of the Constitution in that it is a local and special law and creates a fifth class of cities.

Seventh: Even if the last mentioned part of the Act of 1915 is valid, Creene County is not entitled to any part of -the dramshop license money under it, because there are no other cities in the county wherein there are licensed dramshops.

Upon the incoming of the return the relator demurred thereto and its demurrer being overruled, refused to plead further, whereupon judgment was rendered in favor of the respondents and against the relator. From this judgment relator appeals.

I. Counsel for the respective parties to this controversy have with much ability and learning presented and argued a number of legal propositions found in this record; but in the view we have taken of the case it will be necessary to notice but two or three of them.

'II. It is first insisted by counsel for respondent that Section 1 of the Act of 1915 is so inconsistent with and repugnant to Subdivision 40 of Section 8 of the same act, that both cannot stand, and therefore, the latter under the law must prevail.

There is an irreconcilable repugnancy between Section 1 of the Act of 1915 and Subdivision 40 of Section 8 thereof. This will clearly appear from a brief excerpt taken from each. From the former: “Provided that for every dramshop license issued by a city of the second class it shall pay to the State the sum of two hundred dollars per annum in quarterly installments, to the county for .county purposes the sum of four hundred dollars per annum in quarterly installments, and to any special road district in which such city may be located five hundred and fifty dollars per annum in quarterly installments, and that the balance shall be paid into the treasury of such city for municipal purposes. Provided, further that no special road district in which such city may he located shall be entitled to any part of the amount paid by such city to the county. ’ ’ And from the latter I quote: “Of the amount levied and collected from dramshops there shall be paid to the State and county from each dramshop license the same amount that is paid to the State and county from dramshops in other cities of the county in which such city of the second class is situated, and to the special road district there shall be paid $275 every six months, the balance to go to the city.”

Discussion could add nothing to the clarity of the repugnancy mentioneed.

The insistence mentioned is predicated upon the fact that the legislative journals of the 48th General Assembly show that said Subdivision 40 was offered and adopted as an amendment after the hill had passed the House with said Section 1 constituting a part thereof. That such journals may be resorted to in order to show the history of any piece of legislation is well established not only in this State but is recognized elsewhere. [State v. Burr, 16 N. D. 581, 113 N. W. l. c. 709; People v. Dobbins, 73 Cal. 257, 14 Pac. 860.]

The law is well settled that where there is a irreconcilable conflict between two different parts of the same act, as a rule the last in order of position will control unless there is' some special reason for holding to the contrary, which' does not exist in this case. The authorities so holding are numerous. [Peterson v. People, 129 Ill. App. l. c. 57; Howard v. Bangor & A. R. Co., 29 Atl. 1101; Quick v. Whitewater Twp., 7 Ind. 570; 36 Cyc. 1130; Westport ex rel. v. Jackson, 69 Mo. App. l. c. 153; 26 Am. & Eng. Ency. Law, p. 619, and cases cited; Omaha Real Estate & Trust Co. v. Kragscow, 47 Neb. 592, 66 N. W. 658; Ex parte Hewlett, 22 Nev. 333, 40 Pac. 96; Loper v. State, 84 N. W. 650; Scott v. Railway Co., 38 Mo. App. l. c. 530.]

We are, therefore, clearly of the opinion that said subdivision 40 is in full force and effect, and that said Section 1 is null and void for the repugnancy mentioned.

That being true, then how stands the case? That question is easily answered. Said subdivision 40 provides that there shall be paid to the State and county from each dramshop license the same amount that is paid to the State and county from dramshops °^%er cities of the county in which such city is situated and to the special road district $275 every six months. The trouble with giving force and effect to this statute is, there is no other city in Greene County which levies and collects a dramshop license. The record shows that the Local Option Law is in full force and effect in all of said county outside of the limits of the city of Springfield. Therefore, no other city in the county is paying or is required to pay any part of a dramshop license to the State or county, and, consequently, Springfield is only required to pay the same amount as such other cities pay, which is nothing. In other words, the statute has not provided what sum in dollars and cents shall be paid by the city of Springfield to the State and county, but refers to a supposed method, which in fact has no existence, by which those amounts could be ascertained. In brief, there is a legislative omission to fix what part of the dramshop license shall be paid to the State and county, or to designate a means by which that part can be ascertained.

Under those facts neither court nor counsel can say the city of Springfield owes the State of Missouri or Greene County any sum of money whatever, and, therefore, neither mandamus nor any other action will lie against her to compel her to pay over any part of the money collected for said dramshop license.

The remedy rests with the Legislature, and not with the courts.

III. Counsel for appellant do not question the soundness of the foregoing ruling as an abstract legal proposition, but seek to escape the legal effect thereof by contending that the courts should l°°k to the order of the county court of Greene County made prior to the adoption of the Local Option Law fixing the amount of dramshop licenses in other cities of that county and use it as a means by which to ascertain the amount due the State and county on account of said licenses.

' Obviously this .contention is untenable, for the reason that said order of the county court was but an incident, a means of enforcing or carrying out the provisions of another law, which was, by the adoption of the Local Option Law, abrogated or repealed, and necessarily the incident thereto, the means by which that law was designed to be enforced, fell with the abrogation of the law itself. This would seem to be self-evident.

Under this view of the record, the appellant is not entitled to the relief prayed for, and it would therefore be useless as well as obiter to pass upon tbe numerous constitutional questions presented by tbe record.

For tbe reasons stated, tbe judgment of tbe circuit court is affirmed.

All concur, except Bond, J., absent.


author: BLAIR, J.

text:
    J. T. HAGUEWOOD et al., Appellants, v. F. R. BRITAIN.
    Division One,
    December 22, 1917.
    1. TB.TJST: Intent: Deed by Entirety: Purchased With Wife’s Money: Burden. Equity neither creates nor enforces a trust contrary to the intent of parties capable of acting for themselves. Where a wife closed the negotiations for the purchase of property, consulted lawyers as to the best method of securing her husband in its enjoyment in case of her death, after the matter was explained deliberately chose to have it conveyed to her and him jointly in preference to taking the whole title in herself and providing for him by will, then paid her own money and accepted the deed by the entirety in the form in which her attorney had prepared it, there was no intention on her part of placing the title in him as trustee for her heirs, and no trust in their favor was created. Such being the facts, it is not necessary to decide whether the burden is on the husband to show that the wife’s intent was that a trust was not to arise in favor of her heirs, since they conclusively establish a contrary intent.
    2. -: -: -: -: Husband as Agent. The doctrine of those cases which hold that the wife’s money in the husband’s hands is a trust fund and the property in which he invests it becomes trust property, has no application to the use by the wife of her own money in the purchase of property which she of her own choice directed her attorney to cause to be conveyed to her and her husband jointly.
    3. -: -: Deed by Entirety in Partition. Those cases holding that where estate lands belonging to the wife’s . ancestor are divided among the heirs in partition proceedings and the allotment to the wife is deeded to her husband or to him and her jointly he takes the title in trust for her or her heirs, have no application to a conveyance made. to the husband and wife, in pursuance to her direction to her attorney to have it so made, and the payment by her of the consideration.
    4. -: Evidence of Intent. A statement by the wife that she wanted her husband to have her property after her death, made to her attorney whom she directed to draw the deed, is not evidence that by a deed conveying property to her and him jointly she intended to create a trust, but only evidenciary of the state of mind which led her to investigate the relative effect and availability of different methods of ac'complishing her purpose.
    Appeal from Greene Circuit Court. — Hon. Guy D. Kirby, Judge.
    Affirmed.

      W. P. Sullivan and Watson & Page for appellants.
    (.1) The mere fact that the deed on its face shows a conveyance to wife and husband, does not show conclusively an estate by the entirety. Donovan v. Griffith, 215 Mo. 149; Jones v. Elkins, 143 Mo. 647; McLeod v. Venable, 163 Mo. 536; Hudson v. Wright, 204 Mo. 412. (2) This land having been purchased with the separate money and means of the wife, under the statute remained her separate vproperty. R. S. 1909, sec. 8309. (3) A mere verbal direction by the wife to have the deed made to herself and husband is not sufficient to create an estate by the entirety, where the land is purchased wholly with the separate money and means of the wife. Hudson v. Wright, 204 Mo. 412, 1. c. 420, 432; Jelly v. Lamar, 242 Mo. 441; Holman v. Holman, 183 S. W. 623; Powell v. Powell, 183 S. W. 625; Grocer Co. v. Ballinger, 137 Mo. 375. (4) In this case the evidence does not show an intention to create an estate by the entirety, but only a desire to make testamentary disposition of her property, so that her ' husband would get her property at her death. (5) The intent of the wife to create an estate by the entirety does not alter the legal effect of the deed under the evidence, since there was no such intention expressed in writing. Sec. 8309, R. S. 1909; Powell v. Powell, 183 S. W. 623; Hudson v. Wright, 204 Mo. 412. (6) The signing of the cheek which paid for the land is not a sufficient writing to satisfy the statute. McMahon v. Welsh, 132 Mo. App. 593; Case v. Espenschied, 169 Mo. 220; Hurt v. Cook, 151 Mo. 427; McGuire v. Allen, 108 Mo. 409; Johnston v. Johnston, 173 Mo. 119..

      W. G. Gideon for respondent.
    (1) A conveyance of real estate in fee to husband and wife creates a tenancy by the entirety with the right of survivorship. Garner v. Jones, 52 Mo. 71; Hall v. Stephens, 65 Mo. 676; Russell v. Russell, 122 Mo. 237; Bains v. Bullock, 129 Mo. 117; Craig v. Bradley, 153 Mo. App. 592-597; Frost v. Frost, 200 Mo. 483; Wilson v. Frost, Í86 Mo. 319; Deer v. Deer Estate, 180'S. W. 575. (2) The Married Woman’s Statute was not intended to and did not abolish estates by the entirety. Frost v. Frost, 200 Mo. 474; Wilson v. Frost, 186 Mo. 311; Bains v. Bullock, 129 Mo. 117. (3) In this case the facts disclosed show that there is no question of the reduction of the wife’s personal property to the possession of the husband, which leaves the statute, Sec. 8309, R. S. 1909, without application in this case, leaving the legal effect of the deed to be governed by the principles of the common law as to estates by the entirety. Craig v. Bradley, 153 Mo. App. 593. (4) The deed created an estate by the entirety, giving a vested interest to the grantees, and its legal effect cannot be changed or the estate prevented from arising on the mere fact alone that the wife’s separate money and means furnished the consideration. Craig v. Bradley, 153 Mo. App. 594. (5) In the absence of evidence showing that the defendant took or received his wife’s money and invested it in the land in controversy and had the title vested in himself and wife, no resulting trust could arise in favor of the wife or her heirs. Jones v. Elkins, 143 Mo. 647; McLeod v. Venable, 163 Mo. 536; Donovan v. Griffith, 215 Mo. 149; Hudson v. Wright, 204 Mo. 412. (6) Where the wife is in compíete control of her separate property, manages and transacts the purchase of real estate, being her own act, her written consent was unnecessary. Craig v. Bradley, 153 Mo. App. 593. (7) A resulting trust is a mere matter of intention, the establishment of which must be by evidence clear, convincing, and unequivocal, before a court of equity will lend its aid to divest title. Forrester v. Scoville, 51 Mo. 268; Darling v. Potts, 118 Mo. 506; Childs v. Wesleyan Cemetery Assn., 4 Mo. App. 74.
   BLAIR, J.

Cordelia Britain died in 1912. Appellants are her hefts at law, and respondent is her surviving husband. In October, 1910, she purchased and paid for a residence and caused the deed to be made to herself and respondent. The deed, on its face, creates an estate by the entireties. Appellants brought this suit to have a trust declared and for partition. Having-lost in the trial court, they bring the case here. Other facts necessary to a decision are stated in connection with the discussion of questions to which they are pertinent.

I. The doctrine that a resulting trust arises “from the payment of price by one person and the taking title in the name of another finds its sanction in the theory, which courts of equity adopt, that such a trust probably expresses the intention of the parties to the transaction. But equity neither creates nor enforces such a trust contrary to the ascertained intent of parties capable of acting for themselves.” [Morris v. Clare, 132 Mo. l. c. 236; Morford v. Stephens, 178 S. W. 441.] In the circumstances, Mrs. Britain could have taken title in her own name and then, under the statute (R. S. 1909, sec. 8304 et seq.) as construed in numerous decisions (Farmers’ Bank v. Hageluken, 165 Mo. 443; Myers v. Hansbrough, 202 Mo. 495; Kirkpatrick v. Pease, 202 Mo. 471; Clay v. Mayer, 183 Mo. 150; Evans v. Morris, 234 Mo. l. c. 186; Turner v. Shaw, 96 Mo. l. c. 28), lawfully could have conveyed to her husband without the intervention of a third party. [Glascock v. Glascock, 217 Mo. l. c. 378, 379; Wilson v. McDaniel, 190 S. W. 3.] She was entirely “capable of acting for herself” in the premises, and her intent becomes important. The trial court found that Mrs. Britain closed the negotiations for the property; consulted lawyers as to the best method of securing her husband in the enjoyment of the property in case of her own death; deliberately, after the matter was explained, chose to have the property conveyed ae she did in preference to taking the whole title and providing for her husband by will; then paid her money and accepted the deed in the form in which she had had her own attorney prepare it. The court’s finding on these matters is fully supported by the record. These facts not only fail to warrant a presumption of a trust, but they conclusively exclude any possibility that such thought was in the mind of any of the parties. Some courts hold that in eases in which the wife pays the consideration and title is taken in the husband’s name, a gift is presumed; all hold if a gift is intended, and shown by evidence competent and sufficient, no trust arises. It is generally held that, if the wife pays the price and the title is taken in the name of both husband and wife, the law infers an intent of the wife to confer an interest by the entireties upon the husband and no trust will arise in the absence of proof that one was intended. These principles are stated in 13 R. C. L., sec. 440. In Reed v. Reed, 109 Md. 690, 130 Am. St. 552, and Lux v. Hoff, 47 Ill. 425, it is held that if a purchase by the wife or by the husband and wife is made with the wife’s money and title taken in them jointly, no trust arises in the absence of evidence of an intent to create one. Mr. Bishop (2 Bishop on Married Women, secs. 118-125) approves the doctrine that in such cases there is a rebuttable presumption of an advancement or provision; the whole matter being one of intent and there being no unbending rule. There are decisions which impose upon the husband the burden of showing an intent that a trust shall not arise from the wife’s purchase and the taking of title in the names of both. It is unnecessary to discuss the relative soundness of these somewhat variant views because, in this case, the evidence and the court’s findings satisfy the requirements of the rule most favorable.to appellants.

II. Appellants rely upon cases (Jones v. Elkins, 143 Mo. l. c. 651; McLeod v. Venable, 163 Mo. l. c. 544, 545; Hudson v. Wright, 204 Mo. l. c. 432; Donovan and Boyd v. Griffith, 215 Mo. l. c. 166 et seq.; Holman v. Holman, 183 S. W. 623) holding that if the husband, with or without the wife’s knowledge and consent, invests her money in realty and takes title, in whole or in part, in his own name, a trust arises in her favor. The doctrine of these cases is that the wife’s money in the husband’s hands is a trust fund and the property in which he invests it' becomes trust property (Alkire Grocer Co. v. Ballenger, 137 Mo. 369; Frost v. Frost, 200 Mo. l. c. 483, 484); that the statute. (Sec. 8309, R. S. 1909) renders nugatory her oral consent to her husband’s use of her separate money and that her oral direction as to its use by him constitutes no nearer approach to compliance with the statute than doés her oral consent. [Holman v. Holman, supra.] Of these -decisions those which present the husband as the sole actor or as attempting to shield himself behind the wife’s wholly ineffectual oral consent to his use of her money, clearly have no application to the instant case, in which the wife was the sole actor and, after advising with her counsel, deliberately and independently chose the course she took.

In Donovan and Boyd v. Griffith, supra, the answer set up that.the husband acted as the wife’s agent and at her direction. While it was competent for the wife to constitute the husband her agent, she could not by oral authorization confer upon him an agency to reduce her personalty to possession. The statute requiring written assent of the wife to such reduction cannot be construed to permit sucb easy evasion. In the opinion in that case the general rule was applied without comment on this matter. Even if it be assumed that the agency referred to in that case was not one for the reduction to possession of the wife’s personalty, but was one for the investment of the wife’s money and the taking of a deed of designated character, and further assumed that such an agency could be constituted orally by the wife, then the general rule would have applied and the presumption of a trust would have arisen from the wife’s payment of the purchase money and the court did not find an intent overthrowing the presumption. In any view that case is not authority against the judgment in this.

III. Other oases cited are those in which partition deeds are involved. Neither such deeds nor proceedings under the partition statute convey any title. They merely. ‘ ‘ adjust the rights of the parties to the possession.” In such circumstances a partition v deed, the wife being the interested owner of a share in the property, conveys nothing to the husband though she-directs that it be made to herself and to him. It conveys no title to her. Her mere consent or direction to include his name adds nothing to its conveying power and, of course, such oral direction cannot of itself constitute a conveyance. [Propes v. Propes, 171 Mo. l. c. 417; Powell v. Powell, 183 S. W. 625.] Cases of this sort, therefore, have no tendency to show that the wife’s direction to her attorney that, in this case, the deed be made to herself and husband, was without effect. They have no bearing on the question.

IY. evidence Further, It is neither pleaded nor intimated in the that there was any fraud or undue influence, the statement of the wife, made to her attorney, that she wanted her husband to have her property after her death, is not evidence of an intent that a trust was intended by what she did. It does not weaken respondent’s case. It was merely evidentiary of the state of mind which led Mrs. Britain into the investigation of the relative effect and availability of different methods of accomplishing a purpose. That purpose, she concluded, was best served by the deed she caused to be made. The judgment is right and is affirmed.

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