source: Caselaw Access Project

author: RAGLAND, C.

license: Public Domain

text:
    OLIVE MAY NELSON, Appellant, v. JAMES ANDREW NELSON.
    In Banc,
    May 18, 1920.
    1. ALIMONY: Revivor: Subsequent Modification. A judgment in a proceeding by scire facias to revive a former judgment for ali- - mony definitely and finally negatives every defense that might and should have been raised against the action.-
    2. SCIRE FACIAS: Defenses. The- only defenses available to a defendant in an action to revive a judgment by scire facias are either (1) that there is no such judgment, or (2) that some fact has come into existence since its rendition that operates to discharge it, such as payment or release.
    3. ALIMONY: Remarriage: Scire Facias: Subsequent Modification. Remarriage by the divorced wife does not ipso facto dissolve her former husband from his obligation to pay alimony, but the judgment therefor stands in full force until modified by the court pronouncing it; but the fact of her remarriage cannot be asserted as a defense in a proceeding by scire facias to revive her former judgment of alimony, and he is not concluded by his failure to plead her remarriage as a defense to that proceeding, and consequently he can subsequently file his motion to have the judgment modified on the ground that the wife married again after her divorce decree, and in the absence of countervailing evidence is entitled to have said judgment annulled as to future payments.
    4. ALIMONY: Modification: Statute: How Construed. The statute (Sec. 2375, R. S. 1909) declaring that “the court on application of either party may make such alteration from time to time as to the allowance of alimony as may he proper,” must, in order to determine whether there are any limitations circumscribing the power of the court to modify its judgment allowing alimony, be read in connection with the entire statute on the subject of divorce and alimony, and the whole considered with reference to the ecclesiastical law, which it modifies, changes and in some particulars supplants.
    5---: -: -: Ecclesiastical Law: Distinction. There is a material and important distinction between the alimony known to the ecclesiastical law and the alimony provided by the statute. The former was incident to and dependent upon an existing and continuing valid marriage, ceased with the death of either party, and was decreed to a wife, not as her separate property or estate, but only for her maintenance; statutory alimony is given only upon a dissolution of the marriage, takes its character from the annullment of the marriage contract as an incident thereto, and is an allowance of such a sum of money as will fairly and reasonably compensate the wife for the loss of her support, and in a limited sense is an assessment of damages for her huband’s breach of the contract. The provision for alteration in the amount, and the other that it may be decreed from year to year, as well as in gross, do not alter'the fact that alimony is essentially compensation, but only afford opportunity to adjust the wife’s loss to variant or new conditions.
    6. JUDGMENT POR ALIMONY: Modification: Remarriage. A judgment for alimony, whether in gross or from year to year, is a debt of record in an action at law, is enforceable by execution, is res adjudicata as to all conditions or facts existing at the date of its rendition, and the wife is entitled to avail herself of all remedies given to other'judgment creditors; being such, being in its essence compensation awarded in redress of a legal injury, being a property right which vests as the installments accrue, the court rendering it has no power subsequently to impair or destroy it without the wife’s consent. As to past installments unpaid, it cannot be annulled on the ground that the wife, since it was rendered, has again married. [Disapproving Francis v. Francis, 192 Mo. App. 710.]
    7. -: Prospectively Only: Remarriage: Abandonment. The statute (Sec. 2375, R. S. 1909), providing that “the court on application of either party may make such alteration from time to time as to the allowance of alimony as may be proper,” operates only prospectively, and the court cannot modify or alter a judgment for alimony so as to annul past-due installments, without the wife’s consent, whether or not, since the judgment was rendered, she has again married. The judgment, as to all unpaid past-due installments, is unalterable, as is any other judgment in an action at law; but, upon the husband’s application, the judgment may be modified as to future installments, and if the wife has again married, she should be held to have abandoned the alimony, for the support contracted for by her subsequent marriage, and the judgment as to future installments should be annulled .
    Appeal from the Jackson Circuit Court. — Hon. 0. A. Lucas, Judge.
    Affirmed in part; reversed in part.

      Jas. G. Rieger and W. C. Hock for appellant.
    (1) Respondent is estopped by the judgment of, revival upon scire facias from now asserting any matters which could have been raised or asserted. Wood & Oliver v. Ellis, 10 Mo. 382; Ellis v. Jones, 51 Mo. 187; George v. Middough, 62 Mo. 551; Walsh v. Bosse, 16 Mo. App. 238; State v. Woerner, 33 Mo. 216; 35 Cyc. 1154, 1159-1160. (2) Appellant’s remarriage did not ipso facto dissolve the obligation to pay alimony. Still-man v. Stillman, 99 111. 196; Cole v. Cole, 142 111. 19; Craig v. Craig, 163 111. 176; Gordon v. Baker, 182 111. App. 587; 14 Cyc. 787; King v. King, 38 Ohio St. 370. (3) Modification of judgment for alimony can be made only upon application by one of the parties. R. S. 1909, sec. 2375. (4) Past installments are a vested right and the court cannot make an order retroactive. Craig v. Craig, 163 111. 176; Dreyer v. Dickman, 131 Mo. App. 660; Meyer v. Meyer, 91 Mo. App. 151; Chester v. Chester, 17 Mo. App. 657; Deidesheimer v. Deidesheimer, 74 Mo. App. 23,6; West v. West, 94 Mo. App. 683. (5) Respondent having paid none of the installments does not come into court with clean hands. Cole v. Cole, 142 111. 19.

      Frank M. Lowe for respondent.
    (1) A writ of revival is not a new suit, but the continuation of an old one. Peak v. Peak, 181 S. W. 394; Hudson v. Wright, 204 Mo. 412; Goddard v. Delaney, 181 Mo. 578; Sutton v. Cole, 155 Mo. 206. (2)* The allowance was made to plaintiff for support and maintenance only. Brandt y. Brandt, 40 Ore. 477, 67 Pac. 508; Bowman v. Worthington, 24 Ark. 538; Still-man y. Stillman, 99 111. 196; Cole v. Cole, 142 111. 19. (3) Upon plaintiff’s remarriage, the allowance for sup-, port and maintenance should cease. Brandt v. Brandt, 40 Ore. 477; Bowman v. Worthington, 24 Ark. 538; Stillman v. Stillman, 99 111. 196 ; Brown v. Brown, 38 Ark. 328; Morgan v. Lowman, 80 111. App. 558; South-worth y. Southworth, 47 N. E. 93; Costeel v. Costeel, 38 Ark., 477; Francis v. Francis, 179 S. W. 980, 192 Mo. App. 710; 1R. C. L. p. 950. (4) Plaintiff has a vested right only in the payments accruing up to the time of her second marriage. Morgan v. Lowman, 80 111. App. 558; Franck v. Franck, 107 Ky. 362, 54 S. W. 195.
   RAGLAND, C.

On the 19th day of January, 1903, appellant secured in the Circuit Court for Jackson County a decree of divorce from respondent, wherein she was awarded alimony from year to year, payable in monthly installments of thirty-five dollars, beginning on the 20th day of January next ensuing. On the 23rd day of August, 1904, she was remarried to one Wallace, .from whom she later obtained a divorce and the restoration of her former name of Nelson. Respondent never paid a single installment of the alimony and the record does not disclose that the appellant, ever took any steps to enforce her judgment therefor. However, on the 9th day of January, 1913, she began proceedings to revive the judgment by scire facias.. Respondent appeared and filed an answer in which he alleged in substance that he had paid all sums due from him to appellant. A hearing was had in October, 1914, and a judgment of revival was rendered. February 29th, 1916, respondent filed a motion alleging the remarriage of appellant and asking the court on that ground to so modify the judgment that he would fie relieved of the payment of all installments of alimony accruing after the date of the remarriage. No pleading of any kind was filed in opposition. The hearing on the motion to modify was had at the March term, 1916. The evidence heard consisted of the record of the proceedings hereinbefore referred to and the admission by appellant of her remarriage and' subsequent divorce. The court took the matter under advisement until the May term, 1916, and on the 20th day of May, during said term, the motion was .sustained, and judgment entered setting aside the original judgment as revived, in so far as it provides for the payment of alimony from and after August 23, 1904, the date of appellant’s remarriage. Appellant was allowed an appeal to the Kansas City Court of Appeals,- where a decision was rendered, but that court deeming its decision contrary to a previous decision of the St. Louis Court of Appeals, certified the cause to this court for determination.

This appeal presents but two questions for consideration. First, whether respondent, inasmuch as he did not plead appellant’s remarriage in his answer to the scire facias in the revivor proceeding, is not now concluded in that respect; and, second, whether the court had the power under the statute to so modify the judgment for alimony as to vacate and annul the same as to, the installments that had accrued prior to the entry of the order of such modification. We agree with the conclusions of' the Kansas City Court of Appeals and generally with its reasoning in support thereof, but inasmuch as the St. Louis Court of Appeals has reached a different conclusion on the proposition involved in the second question above, it is deemed proper to state somewhat more at length the grounds of the decision than appears in the opinion of the Kansas City Court of Appeals.

settled. emamage. I. Appellant’s first contention invokes the familiar rule, that a valid judgment for the plaintiff definitely and finally negatives every defense that might and should have been raised against the action, respondent could have pleaded appellant’s remarriage in response to the scire facias as a showing of sufficient cause why the judgment against him should not be revived, such plea is unavailing to him in this proceeding. It is well settled that as far as the merits are concerned there are in a generai way two defenses available to the defendant in an action to revive a judgment by scire facias. One is that there is no such judgment, and the other, that some fact has come into existence since its rendition that operates to discharge it, payment, release, or some other. So that the only question in this connection is whether appellant’s remarriage operated ipso facto to dissolve respondent’s obligation to pay alimony and thereby discharged the judgment therefor. The decree adjudging the alimony does not so, provide, neither does the statute. Absent such a provision in either the one or the other, the general law must be looked to. The question of the effect of remarriage by a divorced wife on the judgment awarding her alimony seems never to have been passed on by the appellate courts of this State. There is, however, an abundance of authority elsewhere from which the general rule may be deduced that such remarriage has no direct effect upon the judgment for alimony. It merely affords a basis upon which the court, upon the application of the former husband, may modify 'or annul it. [11 Ann. C.as. 523.] The doctrine of the cases supporting this rule seems to be that where a wife obtains a divorce and afterwards remarries, and the husband of such second marriage is not able to support her in the position of life to which she is accustomed, the court will consider such circumstances, and while it will not order such payments of alimony shall cease, may reduce thé amount. In such cases the burden is on the wife to show that her second husband is not able to support her, and where she introduces no evidence on this point it will be presumed that he is abundantly able to fulfill bis marriage obligations. [Southworth v. Treadwell, 168 Mass. 511, 47 N. E. 93.] Whether the holding of these cases, in so far as they hold that a divorced wife on remarriage is still entitled to payments of. alimony from her former husband in a reduced amount, or in any amount whatever, is in accord with sound public policy and good morals is doubtful. A better view would seem to be that the divorced wife by remarriage abandons the provision made for her support out of the estate or earnings of her former husband, as embodied in the judgment for alimony, for that adequate support for which she contracts by the subsequent marriage. Treating alimony, as on principle should be done, as the equivalent of that obligation for support which arises in favor of the wife out of the marriage contract, and which is lost when that contract is annuled, she obtains the same obligation for support by a second marriage, and it is unreasonable and illogical, as well as unseemly, that she should have both at the same time. She would therefore in such circumstances be held to have abandoned the alimony for the support contracted' for by the subsequent marriage, and, having once done so, the obligations against the former husband cannot be revived upon the death or divorce of the subsequent one. But it is not necessary for us to pass upon this particular phase of the subject on the' facts of this case. On the trial respondent proved the remarriage, and appellant offered no evidence touching the inadequacy of the support furnished by her second husband during the continuance of that marriage, or of the alimony, if any, decreed her on her divorce from him. We do hold, however, that remarriage does not ipso facto dissolve the obligation to pay alimony. Under the statute the judgment therefor stands in full force unless and. until modified by the court pronouncing it. The court can act in that behalf only when application therefor is made by one of the parties, and in such proceeding the fact of remarriage at least must be judicially determined. It follows that the fact of appellant’s remarriage could not have been asserted as a defense in the revivor proceeding. We further hold on this phase of the case that respondent in proving the remarriage made a prima-facie case, which, in the absence of countervailing evidence of the character heretofore indicated, entitled him to have the judgment annuled at least as to future payments of alimony.

of Judgment, II. The second question for decision is whether the trial court was authorized to so modify the judgment as to entirely wipe out the installments that had accrued after the second marriage and prior to the entry of the order of such modification. This involves a more definite construction, or rather interpretation, of Section 2375, Revised Statutes 1909, which among other things, provides that “the court on application of either party may make such alteration from time to time as to the allowance of alimony ... as may be proper.” ' Because of the unique character of the action for divorce and alimony such interpretation is not without■ difficulty. “The action, the defenses thereto, and the proceedings therein, are, as far as suited to our day and situation,, controlled by the law of the English Ecclesiastical Courts (common law with us) as modified, changed, or, in some matters, supplanted by our statutes.” [Chapman v. Chapman, 269 Mo. 663, 668.] To determine, therefore, whether there are any limitations which circumscribe the power of the court to modify its judgments expressly given by Section 2375, that section must be read in connection with the entire statute on the subject of divorce and alimony, and the whole considered with reference to the ecclesiastical law which it modifies, changes, or in some ’particulars supplants. “All statutes, these alimony ones constituting no exceptions, are to be interpreted not as isolated and independent directions or rules, but as additions to the prior written or unwritten laws, which to a due extent they modify and control, and by which- in turn they are themselves modified and controlled. [2 Bishop on Marriage, Divorce and Separation, see. 1040.] Another rule of statutory interpretation is that a legal term employed in a statute is as far as possible to be given its already established meáning. So that the alimony provided by the statute should, so far as conformable both to the' letter and the spirit of the statute as a whole, be deemed to be of the same nature as the alimony of the unwritten law. There is a distinction, however, between the alimony known to the ecclesiastical law and that provided by the statute. The former was incident to and dependent upon an existing and continuing valid marriage, while the latter is given only upon its dissolution. This distinction should be kept in mind, for it differentiates the two in essential attributes. Under the canonical law administered by the ecclesiastical courts marriage was a religious sacrament and no English.court had jurisdiction to dissolve it for a post-nuptial cause. The divorce granted by these courts was from bed and board, a mere judicial separation. The relation of husband and wife continued, the door of reconciliation was left open, and they could resume their former status of their own accord without any civil or religious ceremony of any kind or character. As the marriage relation continued, the husband was in no wise disturbed either in his title to the property brought to the marriage by the wife, or in his possession thereof, but he was still under the duty to afford her support according to his means and station in life. Hence, alimony was allowed and enforced as support due from husband to wife during, their .legal separation. This was the theory and origin of alimony under the unwritten law. Consequently, alimony decreed the wife continued only during the joint lives of herself and her husband. Upon the death of either it was at end. Even unpaid arrearages upon the decease of the wife could not be collected by her personal representatives, but reverted to the husband, though .Jier creditors could in equity have such arrearages impressed in their favor to the amount of the support furnished the wife by them. During the life of the wife the arrearages of alimony of long standing were lost to her if no attempt had been made to collect them. As the ecclesiastical courts had no means of enforcing their decrees for the award of alimony it was necessary for the wife to appeal to the court of chancery to compel payment. Ordinarily the chancellor would refuse relief as to all arrearages extending back more than one year. This was because. alimony was not decreed to a wife as her separate property or estate, but for her maintenance only. If she permitted it to become in arrears for more than one year without making application to enforce a monition for its payment, it was presumed that it was not needed by her for support, and hence it would be inequitable to burden her husband with the payment thereof.

If the courts of this State have the authority to modify judgments for permanent alimony to the extent of cancelling- or annulling accrued unpaid installments thereof, it must be because our statute merely adopts the ancient chancery practice above referred to with the legal theories and their logical sequences which it effectuated. On the contrary, many of those theories by the spirit of our times and of our institutions, and by force of the statute itself, have become obsolete. Under the laws of this State marriage is not a sacrament but a contract. Divorce is not merely a legal separation but absolute dissolution of the marriage tie. Through the decree rendered in the action, the contract of marriage is fully discharged as to both parties thereto for the breach by one. The permanent alimony allowed by the statute as an incident thereto takes character accordingly. In other words, it is not a continuing of the support of the wife by the husband, but it is the allowance of such a sum of money in gross or in installments as will fairly and reasonably conpensate her for the loss of her support by the annulment of the marriage contract. In this limited sense at least it may be deemed an assessment of damages in her favor for breach of the contract by her husband. Following the rule of statutory interpretation heretofore premised, the elements that enter into and make np the measure of such damages are for all practical purposes, and on principle should be, determined by the same considerations that determined the amount of alimony under the unwritten law, the prior treatment of the spouses respectively of each other, the needs of the wife, the “faculties” of the husband, etc. But the essential nature of statutory alimony is not support furnished by an unwilling husband to his wife on the compulsion of a court of chancery, but compensation for the loss thereof adjuged her in an action at law. [Chapman v. Chapman, supra.] The fact that alimony may be decreed from year to year, as well as in gross, does not militate against the idea that it is essentially compensation. If the husband has no property, his future earning capacity must be utilized to meet his obligation. In such a case a judgment in gross might defeat the very purpose to be attained. Nor does the further fact that the court may make such alterations in the amount allowed, from time to time as may be proper, so militate. The provision merely affords the opportunity from time to time as new conditions arise to more exactly determine the extent of the loss suffered by the wife. If she minimizes and entirely recoups the same by remarriage, her compensation can, and should be accordingly reduced.

A judgment for alimony whether in gross or from year to year is a debt of record as much as any other judgment for money. The wife is a judgment creditor and as such is entitled to avail herself of all the remedies given to judgment creditors. [1 R. C. L. p. 951, sec. 97.] In this State such a judgment is a judgment in an action at law, secured by statutory liens, enforceable by execution, and becomes • dormant after the lapse of the statutory period of ten years unless revived. In fact it is subject to the same incidents as judgments in other action at law. [Chapman v. Chapman, supra; Biffle v. Pullam, 114 Mo. 50; Dreyer v. Dickman, 131 Mo. App. 660; Hauck v. Hauck, 198 Mo. App. 381.] Not only are judgments for alimony from year to year subject to tbe same incidents as judgments in other actions at law, but like them are.res adjudicate/, as to all conditions or facts- existing at the date of their rendition. [Deidesheimer v. Deidesheimer, 74 Mo. App. 234.] As to the state of the case existing when entered, they are final and can not be set aside or annulled, except for mistake or fraud as in the case of other judgments. The husband has the right to act in reliance on the finality of the award determining the extent of his obligations. (R. C. L. p. 948, sec. 94 ), and it follows as. of course that the wife has a correlative right.

As a judgment for alimony from year to year is subject to the same incidents as other judgments rendered in action at law, and as it is in its essence compensation awarded in redress of a. legal injury, it must be held on principle that the wife has therein, as she would have in any other money judgment rendered in her favor, a property right which vests as the installments accrue. It follows that the court rendering such judgment has no power subsequently to impair or destroy a right so vested without the wife’s consent. [Craig v. Craig, 163 Ill. 176; Miller v. Clark, 23 Ind. 370; O’Hagan v. O’Hagan’s Exr., 4 Iowa (Clark) 509; Gordon v. Baker, 182 Ill. App. 587; In re Estate of Bell, 210 Ill. App. 350; In re Nowell, 99 Fed. l. c. 934; Note 2 L. R. A. (N. S.) 242.] In the case of Sistare v. Sistare, 218 U. S. 1, 54 L. Ed. 905, the Supreme Court of the United States in discussing the power of the courts of the State of New York to modify retroactively past due installments of alimony under a code provision of that State similar to ours, says at page 912:

“But it is equally certain that nothing in this language expressly gives power to revoke or modify an installment of alimony which had accrued prior to the making of an application to vary or modify, and every reasonable implication must be resorted to against the existence of such power, in the absence of clear language manifesting an intention to confer it. The implication, however, which arises from the failure to expressly confer authority to retroactively modify an allowance of alimony is fortified by the provisions which are expressed. Thus, the ‘ methods of enforcing payment of the future alimony awarded, provided by the statute, all contemplate the collection and paying over as a matter of right of the installments as they accrue, as long as the judgment remains unmodified, or, at least, until application has been made or permission to make one in pursuance to the statute has been accorded. And the force of this suggestion is accentuated when it is considered that it was not unusual in New York to resort to executions as upon a judgment at law to enforce the collection of unpaid installments of alimony. [Wetmore v. Wetmore, 149 N. Y. 520, 527, 33 L. R. A. 708, 52 Am. St. 752, 44 N. E. 169.] Indeed, as in principle, if it be that the power to vary or modify operates retroactively and may affect past due installments so as to relieve of the obligation to pay such installments, it would follow, in the very nature of things, that the power would exist to increase the amount allowed, it is additionally impossible to imply such authority in the absence of provisions plainly compelling to such conclusion. Beyond all this, when it is considered that no provision is found looking to the repayment by the wife of any installments which had collected from the husband, in the event of a retroactive reduction of the allowance, it would seem that no power to retroactively modify was intended.”

The reasoning of that case is wholly applicable in this.

To say that a judgment for alimony, in respect to past due and unpaid installments, is a judgment and fixed debt, unless and until altered, is to say that it is not fixed at all, and on such hypothesis the judgment in that respect would be interlocutory and not final as a matter of course. Solely for that reason, judgments for alimony, rendered in those forums that exercise the power to modify them retroactively, are not under the protection of the full faith and credit clause of the Federal Constitution, and suit can not be maintained on past due installments thereof in the courts of sister states. [Sistare v. Sistare, supra.] For the same reason unpaid over-due installments under the judgments of such courts are not provable in courts of bankruptcy. [In re Nowell, supra..] If not otherwise impelled thereto, we would be constrained to hold for reasons of public policy alone that the courts of this State have no power to revoke or modify an installment of alimony which has accrued prior to the making of an application therefor. The case of Francis v. Francis, 192 Mo. App. 710, to the extent that it holds the contrary is hereby overruled.

The judgment of the trial court in this case, in so far as it annuls and cancels the payments of alimony after February 29, 1916, is affirmed; in other respects it is reversed.

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


author: WALKER, C. J.

text:
    THE STATE ex rel. FREDERICK D. GARDNER et al., Constituting State Board of Equalization, v. ROBERT W. HALL, Judge.
    In Banc,
    May 18, 1920.
    1. JURISDICTION: Circuit Court: State Board of Equalization: Other Inferior Tribunals. The State Board of Equalization, although its acts are judicial, is not a tribunal within the meaning of the constitutional provision (Sec. 23, Art. 6) giving to circuit courts within their respective circuits superintending control over certain other courts and “all inferior tribunals.” Even if it could be so classified, it exists only as a board, and its location is at the state capital, beyond the territorial jurisdiction of the St. Louis Circuit Court.
    2. -: -: -: Certiorari. The function of the writ of certiorari in Missouri is the same as at common law, and proceedings therefor should be commenced in the circuit court, unless for special reasons complete justice cannot be done, in which case the proceedings may be begun in a Court of Appeals or the .Supreme Court.
    3. -: -: -: -: Classification. Ordinary actions as to venue are classified as transitory or local. Certiorari to quash the record of the State Board of Equalization so far as concerns the equalization of the values of real property in the City of St. Louis for the purpose of taxation, is not a transitory or an ordinary action, but is a local extraordinary proceeding, instituted by a prerogative writ; but, so far as determining the venue, the difference between transitory and local actions is of minor importance, for whether certiorari be the one or the other, to give- a court jurisdiction, they, must be instituted' under the conditions prescribed by the statute.
    4. -: -: -: Conformation to General Code. There being no statute regulating the course of proceedings in certiorari, the principles and usages pertaining to the writ recognized at common law are to be moulded and modified to conform in their application to the requirements of our general code of civil procedure, whenever that can be done.
    5. -: -: -■ — : -: Suit: Summons: Service: Process. While a proceeding by certiorari is not a suit in the ordinary acceptation of the term, it comprehends all the essential elements necessary to constitute a suit; and while it is not instituted by summons as that form of process is usually understood, the writ is to be served in the same manner as writs in ordinary actions. A summons and a prerogative writ are but different forms of process, and both are but means of acquiring jurisdiction over the person of a defendant.
    6. -: --: —,-: Venue. The venue of the writ of certiorari should be laid as in suits brought by summons as authorized by Section 1751, Revised Statutes 1909; and the State Board of Equalization, both by the Constitution and statutes, having no legal entity except at the state capital, and having no migratory powers and being incapable of subdivision, the Circuit Court of the City of St. Louis has no jurisdiction to issue its writ of certiorari requiring the board to produce its record equalizing the values of real property in that city for the purpose of taxation, in order that the same may be quashed, for the board neither resides in said city nor can it be found there.
    7. -: -: - — : -: -: Enforcement of Tax Bill. The statute (Sec. 1753, R. S. 1909) providing that suits whereby the title in real estate may be affected, or for the enforcement of the lien of any special tax bill thereon, shall be brought in the county where such real estate is situate, has no application to a writ of certiorari issued by the Circuit Court of the City of St. Louis directed to the State Board of Equalization commanding that so much of its record as pertains to the equalization of values of real property in said city be produced in court in order that the same may be quashed.
    8. -:--:--: -: Not Writ of Bight. Certiorari is not a writ of right. Its issuance is within the court’s discretion, and that discretion should be warily exercised when it is brought by á single taxpayer and its effect, if granted, will be to nullify for purposes of taxation the valuations of the real property in St. Louis.
    Prohibition.
    Preliminary Writ Made Permanent.

      Frank W. McAllister, Attorney-General, and John T. Gose, Assistant Attorney-General, for relators.
    (1) A circuit court has no superintending control over an inferior tribunal which is not within the territorial limits of its circuit. Sec. 23, Art. VI, Mo. Constitution. ‘ ‘ The expression of one thing is the exclusion of others.” Hendricks v. Sweaney, 270 Mo. 692; Kansas City v. Assn., 145 Mo. 53; Maguire v. Association, 62 Mo. 346; Sutherland on Statutory Construction, secs. 325, 326, 327. (2) Even though the superintending control of the circuit court over inferior tribunals were not territorially limited, by the constition, still it would not necessarily follow that because the jurisdiction of the circuit court was general in a given class of cases, it had jurisdiction in a specific case. State ex rel. v. Cave, 272 Mo. 668; State ex rel. v. Shields, 272 Mo. 242; State ex rel. v. Grimm, 243 Mo. 667; State ex rel. v. McQuillin, 246 Mo. 532;, State ex rel. v. Bright, 224 Mo. 514, To hold that the Circuit Court of the City of St. Louis had superintending control over the State Board of Equalization would necessarily mean that every circuit court in the state had superintending control over the State Board of Equalization. Such conclusion is so clearlv in contravention of public policy that it can not be within the contemplation of the law of this State. (3) Transmission of the alternative writ to the sheriff of Cole County, and its alleged service in said county, did not give the Circuit Court of the City of St. Louis jurisdiction over the persons of the members of the State Board of Equalization. Sec. 1751, R. S. 1909. Where a court has no jurisdiction at all, or where it is exercising powers in excess of its rightful jurisdiction, the writ of prohibition will go. State ex rel. v. McQuillin, 256 Mo. 703.

      Marion G. Early, for respondent.
    (1) Sec. 23, Art. 6, State Constitution, does not apply to this case, (a) It only applies to local tribunals, inferior to the circuit court, which the Board of Equalization is not. (b) As a general provision concerning jurisdiction it has no application to local actions, which the certiorari here involved is. Casey v. Adams, 102 U. S. 66. (2) The certiorari here involved is a local action, and its location is the City of St. Louis. State ex rel. v. Grimm, 243 Mo. 674; Black’s Law Dictionary, Tit., Actions; Burrill’s Law Dictionary, Tit., Actions; Mason v. .Warner, 31 Mo. 508; Crook v. Pitcher, 61 Md. 510: Ackerson v. Erie Railroad, 31 N. J. L. 312; 40 Cyc. 27, Title, Venue; People v. Cicott, 15 Mich. 326; Jordan v. Owens, 67 Ga. 616; McLeod v. Connecticut Railroad, 58 Vt. 727; Worster v. Winnipiseoa’ee. 25 N. H. 525; Con-don v. Leipziger, 17 Utah, 498 ; Miller v. Hickey, 127 Fed. 573. (3) The certiorari being a local action, the Circuit Court of the City of St. Louis had authority to issue summons to Cole County. Magrew v. Foster, 54 Mo. 261 : Stone v. Travelers’ Ins. Co., 78 Mo. 658; Castleman v. Castleman, 184 Mo.'438. (4) No public policy countervails the jurisdiction of the Circuit Court of the City of St. Louis in the certiorari case.
   WALKER, C. J.

This is an original action brought in this court to prohibit one of the judges of the Circuit Court of the City of St. Louis from further proceeding in a case pending in the circuit court of that city, entitled Frank Meyer et al. v. The Governor and Other Executive Officers Constituting the State Board of Equalization, the purpose being to quash the record of said board so far as the equalization of the values of real property in that city for the purpose of taxation. In furtherance of that proceeding the circuit court issued a writ of certiorari, which was transmitted to the Sheriff of Cole County for service upon the members of the board and was there served upon them. Counsel for the board, appearing for that purpose only, in the circuit court moved to quash the writ on the ground of a lack of jurisdiction, both as to the subject-matter and the persons. The motion was overruled, and upon the circuit court continuing to exercise jurisdiction this proceeding by prohibition was instituted.

The question presented for solution is one of jurisdiction. |

The constitutional provision (Sec. 23, Art. VI) limiting the superintending control of circuit courts within their respective circuits over certain other courts, naming them, and “all inferior tribunals,” is foreign to the-matter at issue. The Board of Equalization, although its acts are judicial (State ex rel. Van Raalte v. Board of Equalization, 256 Mo. l. c. 461), is not a tribunal within the meaning of the Constitution. If it could be so classified it exists only as a board and its location is at the state capital, beyond the territorial jurisdiction, as defied by the Constitution, of the St. Louis Circuit Court. If,/therefore, that court possesses the power to require the board to respond to the writ here sought to be invoked it must be found elsewhere than in the constitutional provision referred to. That this power may be so found is dependent upon the general jurisdiction of circuit courts and the.procedure provided by law for the exercise of that jurisdiction. This follows as a necessary deduction from the nature of the State Constitution as a limitation upon rather than a grant of power; and precludes the conclusion that it was intended- to or does limit the general common-law jurisdiction of circuit courts. The function of the writ of certiorari in Missouri is the same as at common law and proceedings therefor should be commenced in the circuit court unless for specbial reasons complete justice cannot be done, in which case proceedings may be commenced in a Court of Appeals or the Supreme Court. [Owens v. Andrew County Court, 49 Mo. 372 ; State ex rel. v. Dowling, 50 Mo. 134; State ex rel. v. Kansas City, 89 Mo. 37; State ex rel. v. Walbridge, 116 Mo. 656; In re Breck, 252 Mo. 302, 158 S. W. l. c. 851.]

Concrete illustration of the exercises of the power of circuit courts in the issuance of the writ against the State Board of Equalization are found in the following cases: State ex rel. Armour P. Co. v. Stephens, 146 Mo. 662; Han. & St. Joe R. R. Co. v. State Board of Equalization, 63 Mo. 294.

The general jurisdiction of circuit courts to issue the writ, or what, in an ordinary action would be termed jurisdiction over the subject-matter, having been established, it remains to be determined whether it can be exercised under the facts at bar. This is dependent upon the nature of the proceeding or, more definitely stated, its classification, so far as it can be classified as an action; the character of the respondent, or board; and its location or residence.

' Ordinary actions are as to venue classified as transitory and local. The distinctions between them have been well defined in Manson v. Warner, 31 Mo. '508, and need not be adverted to here further than to say that the location of the board or the place of its legal existence and the purpose sought to be accomplished by this proceeding are such as to foreclose the conclusion that this is a transitory, action. This for the reason that the venue of the proceeding must have a legal and well defined locus in quo. Generally speaking, it would not be subjectec to classification as an ordinary action, but being an application for a prerogative writ, would simply be pus'Juris, p. 87, sec. 1; Works , Juris., p. 703; State designated as an extraordinary proceeding. [11 Cor-ex rel. v. Wiethaupt, 254 Mo. 319; State ex rel. v. Goodrich, 257 Mo. 40.] Our Code (Sec. 1751, R. S. 1909), however, in prescribing the places where actions must be brought, while not obliterating, has rendered of minor importance, so far as the venue is concerned, the difference between transitory and local actions. Whether they belong to one class or the other, they must, to give the court jurisdiction of the person, be instituted under the conditions prescribed in the statute. It is true that a literal interpretation would limit its requirements “to suits instituted by summons,” that being the language of the section. While we have no statute regulating the course of proceedings in certiorari, and we are authorized to adopt the principles and usages in regard to the writ recognized at common law, such adoption must in its application be moulded and modified to conform to the requirements of our general code of procedure whenever this can be done. [State ex rel. Barker v. Wurdeman, 254 Mo. l. c. 569; State ex rel. Bank v. Springer, 134 Mo. l. c. 222.] Therefore, although this proceeding is not a suit in the ordinary acceptation of' the term, it comprehends all the essential elements necessary to constitute one, viz., a moving and an adverse party and the necessity of a decision determining the issue. We have held another extraordinary statutory proceeding for the discovery of assets of an estate to be a suit, because it possessed the essentials stated. [Clinton v. Clinton, 223 Mo. l. c. 380; Ex parte Gfeller, 178 Mo. 248; Eckerle v. Wood, 95 Mo. App. 378.] In Georgia it is expressly held that a proceeding in certiorari is a suit. [Hendrix v. Kellogg, 32 Ga. l. c. 437.] An application for a writ of prohibition is held by the United States Supreme Court to be a suit. [Weston v. Charleston, 2 Pet. (U. S.) l. c. 463.] A like ruling was made by the Supreme Court of Illinois in regard to the nature of a proceeding by mandamus. [Roodhouse v. Briggs, 194 Ill. l. c. 437.] The Supreme Court of Wisconsin in a case (State ex rel. Medical College v. Chittenden, 127 Wis. l. c. 494) in which the vexing question, in the absence of an express statute, was the classification to he given tó an application for the writ of certiorari, held that the proceeding to obtain the writ is to be deemed to all intents and purposes the commencement of an action in the statutory sense. Guided by these precedents, no violence is done to the rules of interpretation in classifying this proceeding as a suit within the meaning of the statute. Exclusion from this classification may, however, be insisted upon for the reason that the proceeding is not instituted by summons as that form of process is usually understood. The.writ, it is true, differs from an ordinary summons, which is directed to an officer commanding him to notify the party therein named (Anderson v. Anderson, 55 Mo. App. 268), while the writ is directly addressed to the court or board the records of which are sought to be produced. [Gossett v. Devorss, 98 Mo. App. l. c. 647.] Briefly, the one is informatory, the other is mandatory. Each, however, requires the act of a court to render it effective. [Cons. Mo. Art. VI, sec. 38; Mullanphy v. St. Louis County Court, 6 Mo. 563; State v. Guilbert, 56 Ohio St. 575, 38 L. R. A. 519.] This is true although the form of an ordinary summons is in the nature of a command in the name of the State directed to the officer charged with the execution of the writ, for the defendant to appear and answer the plaintiff’s petition. [Sec. 1759, R. S. 1909; Anderson v. Anderson, 55 Mo. App. l. c. 274.] It has been held by one of our courts of appeals in Gossett v. Devorss, supra, in ruling upon the requisites of service in a certiorari proceeding to remove an unlawful detainer case pending before a justice of the peace, to the circuit court, that, in the absense of a statutory method of service, the writ may be served by any person or by any means by which the party to whom it was directed may receive its command. Certiorari as there' invoked, is in the nature of a writ of error to remove the case to the circuit court for a trial upon its merits. So far as the case determines the nature of the service as different from that required by the code, it cannot be construed as applicable to the case at bar. Here the purpose of the writ was to determine if the State Board had acted within its jurisdiction. Issued as the writ was from a court of general jurisdiction, it would not only lower its dignity but lessen the effectiveness of the writ if its service, instead of being performed by the officer charged by law with the execution of process, should be entrusted to an indifferent person. The Court of Appeals ruling, therefore, cannot be regarded as persuasively indicating that a different service of the writ is authorized in cases as at bar than is required in ordinary actions brought under our code of civil procedure. That this manner of service of the writ is required despite the absence of an express statute seems beyond question. It produces uniformity and as a consequence simplicity in this phase of procedure and thus tends to facilitate the administration of justice. No strained construction of the words employed is necessary to sustain this conclusion. A summons is but a form of process or, as it is repeatedly termed in the statute (Art. IY, Chap. 21, R. S. 1909), it is an original writ; a prerogative writ, as in the case at bar, is but process, and the words, therefore, may without destroying their sense be used interchangeably, or as we said in effect in Wilson v. Railroad, 108 Mo. l. c. 599, 32 Am. St. 624, any means authorized by law of acquiring jurisdiction may properly be designated as process. [Mansur v. Life Ins. Co., 136 Mo. App. 726; Carey v. Ger. Am. Ins. Co., 84 Wis. 840, 36 Am. St. 907, 20 L. R. A. 267.]

It follows therefore that the venue of the writ should be laid as in suits brought by summons as authorized by Section 1751, Revised Statutes 1909. The initial requirement of this section is that suits shall be brought in the county within which the defendant resides. In this case the board, created by the Constitution and its duties defined, has, neither under the organic nor the statutory law (Sec. 18, Art. X, Const. Mo., Art. IY, Chap. 117, R. S. 1909) any legal entity except at the State Capital. It has no migratory powers, is capable of subdivision, can act only through a majority of its members, and from the nature of its duties and the law of its creation it can exercise its functions only at the place of its creation. A right of action against the board, measured alone by the operation of the statute quoted, must be limited to the place of its being. )

A succeeding provision of the same section of the statute authorizes the bringing of suits- in the county where the plaintiff resides and the defendant may be found. As we have before stated, the board is non-existent except at the state capital and hence it cannot be subjected to process elsewhere. The proceeding is against the board. It is its action which is sought to be reviewed; and it, and not its individual members, should be sued. [Goodrich v. Highway Commissioners, 1 Mich. 385; State ex rel. v. Village Council, 107 Minn. 441; People v. Cholwell, 6 Abb. Pr. 151.]

It is further provided by the statute (Sec. 1753, R. S. 1909, amdt. 1915, p. 224) that “suits for the possession, of real estate, or whereby the title thereto may be affected or for the enforcement of the lien of any special tax bill thereon, shall be- brought in the county where such real estate, or some part thereof, is situated. ’ ’ There is nothing in the present proceeding which renders this statute in any wise applicable. The relator questions the validity of the board’s action in the equalization of the vahm of his property for the purpose of taxation. If his contention should be sustained the utmost that could be accomplished would be the quashing of the record’of the board. The application for the writ, therefore, cannot even remotely be said to affect title to real estate and hence the venue of the action cannot, under the authority of this statute, be laid in the City of St. Louis.

Relator contends that, subjected to the rules of classification, this is a local and not a transitory action. We have discussed this question, but it is not inappropriate to say in addition that the relator is nominally correct. The proceeding is local; but whatever right to redress relator has did not accrue at the place of his residence, but at the state capital where the board sat and the order he complains of was made.

It is elementary that a court's power to hear and determine is limited to its territorial jurisdiction as defined by law. Beyond this its orders are nullities and its process is futile. [Works on Jurisprudence, p. 22.]

However, in a case of the character of that at bar, the court’s action should not be predicated alone upon its right to hear and determine. Certiorari is not a writ of right. Its issuance is within the court’s discretion. [State ex rel. Evans v. Broaddus, 245 Mo. l. c. 135.] That discretion should be warily exercised when, as here, it is brought by a single taxpayer and its effects, if granted; will be to nullify the valuation for the purpose of taxation of the real property of the City of St. Louis. Under such a state of facts it is a question .entitled to serious consideration whether the injury done by the.granting of the writ will not far exceed the relief afforded. [State ex rel. Fath v. Henderson, 160 Mo. l. c. 208.] The presence of other remedies to which the relator was entitled would, if the writ had been refused, have resulted in no denial of justice. [Degge v. Hitchcock, 229 U. S. 162; In re Tampa Sub. R. Co., 168 U. S. 583; Hooper v. Bridgewater, 102 Mass. 512.]

Furthermore the officers constituting the board are the executive heads of departments of the State Grovernment. Their principal official duties are required to be performed at the capital, where their officers are located. If, therefore, jurisdiction be entertained by circuit courts elsewhere than at the state capital in cases as at bar, and the attendance of the members of the board be required at hearings which might be held in any part of the State, it could not result otherwise than as an interference with their other duties and thereby prejudice the public welfare. [State ex rel. Milwaukee Med. Col. v. Chittenden, 127 Wis. l. c. 495; Morrison v. Emsley, 53 Mich. 564; Johnson, v. West, 89 Ark. 604; Clark v. Chicago, 233 Ill. 113; Elmendorf v. New York, 25 Wend. (N. Y) 693.]

That the circuit court exceeded its jurisdiction herein is apparent. Our preliminary writ of prohibition heretofore issued is therefore made permanent.

All concur. Graves and Blair, JJ., in result.


author: GRAVES, J.

text:
    C. W. DILLARD v. R. R. ANDERSON et al., Judges of County Court, C. H. HARRIS et al., Appellants.
    In Banc,
    May 21, 1920.
    INJUNCTION: Trespass: To Restrain Opening of Public Road: Appellate Jurisdiction. The Supreme Court does not have jurisdiction of an appeal from a judgment of the circuit court in an injunction proceeding to restrain the county court, highway engineer and a road overseer from entering upon and laying out a public road ordered by the county court to be established over plaintiff’s land. Title to real estate is not involved in such a way as to give the Supreme Court jurisdiction. The suit is to enjoin a mere trespass, and a mere injunction to restrain a trespass upon land does not involve title to real estate in the constitutional sense. [Overruling Ripkey v. Gresham, 214 S. W. 851, 190 S. W. 354.]
    Appeal from Pike Circuit Court. — Hon. Edgar B. Wool-fold, Judge.
    Re-transeerred to St.. Louis Court oe Appeals.

      J. 0. Barrow and Hostetler S Haley for appellants.

      Pearson é Pearson for respondent.
   GRAVES, J.

This cause was transferred to this court by the St. Louis Court of Appeals on the ground that title to real estate is involved. In Division One it was transferred to this court on account of a contrariety of opinion in this court.

The action is one by a land owner against the members of the County Court of Pike County, and the Highway Engineer of said county, together with one Williams, a public road overseer. The action is one by injunction, wherein the plaintiff seeks to restrain the defendants from entering upon and laying out a public-road over the plaintiff’s land. Plaintiff avers that defendants threatened to enter upon his land for such purpose. The suit is to enjoin such threatened trespass upon his property.

The answer avers that a public road had been duly established, by the order of the county court, over the lands of plaintiff, and that defendants were fully authorized to enter upon the property in question.

By its judgment the trial court perpetually enjoined defendants from entering upon the premises of the plaintiff. Prom such judgment appeal was taken to the St. Louis Court of Appeals, and that court has transferred the ease here as above stated. The first question is our jurisdiction. The same state* of facts were held in judgment by this court in Hill v. Hopson, 221 Mo. 103. In that case we held that we had no jurisdiction, and transferred the case to the Court of Appeals. We said that in an injunction suit for a similar threatened trespass, title to real estate was only incidentally involved, and was not involved in the sense which lodged jurisdiction here. The rule in that case determines our jurisdiction in this case. Under that rule we are without jurisdiction, and this cause should be re-certified to the St. Louis Court of Appeals.

In cases of this character we have not ruled by a uniform voice. We should not overlook the fact that the real character of a case of the kind involved here, is to restrain a threatened trespass. In such cases title to real estate is not so involved as to confer jurisdiction here. When the road was ordered, and the party’s land was actually taken, was the time when the title to real estate was so involved, as to cast the jurisdiction here. That was a judgment in the county court, and by appeal to the circuit court would have been tried de novo. • If by the judgment of the circuit court the road was established and the land taken, the appeal from snch circuit court judgment would lie here, because such judgment directly affected the title to land. But such is not the case here: The judgment actually affecting the title to lands was not appealed from by the landowner. In this injunction proceeding the title is only incidentally involved, depending upon the record deeds upon the one side, and this county court judgment on the other side. Like all trespass cases title to real estate may be incidentally involved, but the judgment itself (unlike the judgment ordering the road) does not take title from one and lodge it in another. Mere injunction to restrain trespass (as is the case here) does not so involve title to lands as to confer jurisdiction upon this court.

That we'may speak with a united voice, the case of Ripkey v. Gresham, 214 S. W. 851, and the cases therein cited are hereby overruled. This ruling likewise applies to the same case in the Springfield Court of Appeals, when it was transferred here, and the cases in that opinion cited, 190 S. W. 354; and all like cases. The cause is re-transferred to St. Louis Court of Appeals.

All concur, except, Woodson, J.t who is absent.


author: BLAIR, P. J.

text:
    THE STATE ex rel. MEYER BROTHERS DRUG COMPANY v. EDMOND KOELN, Collector of the Revenue, Appellant.
    In Banc,
    May 21, 1920.
    1. INCOME TAX: Reduction by Property Tax: Repeal of Section 32. Where the income tax for 1918 was assessed prior to March 1, 191-9, but did not become due until the fall, and up to December, 1919, the taxpayer had paid no property tax that was deductible, his right in December to have his property taxes then due credited on the bill for the unpaid income taxes was not affected by the repeal on May 26, 1919,, of Section 32 of the Act of 1917, declaring that a taxpayer who shall have paid a property tax during the year shall he credited with the full amount paid upon the income tax assessed against him during the year. The assessment of the income tax for 1918 being complete on March 1, 1919, the mode and amount of that assessment were exactly the same as if the taxpayer had owned no property subject to assessment and, taxation on June 1, 1918; and as the property taxes deductible under Section 32 were those which became due and payable in the same year in which the income tax from which they were deductible became due and payable, the taxpayer could not claim the reduction at the time the income tax for 1918 was assessed (in March, 1919), or at the time when Section 32 was repealed on May 26, 1919, for up to that time he had neither received nor presented any receipts showing a payment of a property tax in 1919.
    2. -: -: -: Vested Bight. If the right to a reduction of an assessed income tax by the amount of the property tax paid had not accrued at the time the statute authorizing the deduction was repealed, no vested right was taken away from the taxpayer by the repeal of the statute. The right to have the property tax payable in 1919 credited on the income tax for 1918, assessed in March, 1919, had not accrued at the time Section 32 of the Act of 1917, authorizing such credit, was repealed on May 26, 1919, and could not have accrued until after the payment of the property taxes due and payable in the fall of 1919 and the presentation of receipts therefor; and consequently the taxpayer had no vested right to such credit at the time said section was repealed. The reduction of assessed income taxes by the amount of propety taxes paid is a privilege available upon conditions stated, but a privilege based upon a continuance of the statute granting it may be withdrawn by a repeal of the statute, and no vested right is denied by a withdrawal of the privilege before it is exercised, but the income tax assessed before the repeal will still he due.
    Appeal from St. Louis City Circuit Court. — Hon. Charles B.. Davis, Judge.
    Reversed.

      Frank W. McAllister, Attorney-General, John T. Gose, Assistant Attorney-General, Charles D. Danes, City Counselor, and H. A. Hamilton, Assistant City Counselor, for appellant.
    (1) This court has interpreted Section 32 of our Income Tax Law and held that the tax receipt for taxes paid to the State upon real and personal property "had to be presented to the collector (not assessor) for credit “ — and that sneh receipt must be one that was received for taxes due and payable in the same year in which the income tax upon which it was to be credited, also became dne and payable. State ex rel. v. Koeln, 211 S. W. 3-3. Respondent, therefore, if the law had remained in effect, having paid its state taxes in the fall of 1919, would have had the right thereupon to present such receipt to the collector and demanded credit upon his income tax bill due and payable at that time; but said Section 32 of the Income Tax Law having, upon the 26th day of May, 1919, been repealed with an emergency clause, there was no law in effect at the time respondent paid its state taxes, under which it could present its receipt in the fall of 1919 and demand credit therefor. Laws 1919, pp. 721, 722. The language of said Section 32 shows upon its face that a taxpayer’s right to credit was conditioned upon his payment of state taxes and the presentation of the receipt therefor to the collector. No right could accrue until the conditions were performed. Laws 1917, p. 538. Before the time arrived when it was possible for respondent to perform the conditions upon which the right to credit was made to depend, the right itself was destroyed by the repeal of the law. The most that respondent ever had was a mere expectancy based upon the continuance of a law and the performance of conditions therein imposed. This expectancy came to naught, because prior to the time when it did or could ripen into a right by reason of the performance of such conditions, the law upon which it was based was repealed. (2) The original right of any taxpayer to credit for state taxes paid was a mere matter of grace and favor on the part of the State, and existed, and could only exist, at the will of the General Assembly. Haizlip v. Haizlip, 240 Mo. 396; Cooley on Constitutional Limitations (7 Ed.), pp. 547, 396; 12 C. J. 969; 37 Cyc. 901-902; Grand Lodge v. New Orleans, 166 U. S. 143; Christ Church v. Philadelphia, 65 U. S. 30; Tucker v. Ferguson, 89 U. S. 527; "West Railroad v. County, 93 U. S. 595; Newton v. Commrs., 100 U. S. 561; People v. Roper, 35 N. Y. 629; Spurlock v. Burnett, 183 Mo. 532; People v. Board, 84 N. Y. 610. (3) Neither private individuals nór corporations have vested rights in the continued existence of a statute A vested right must be something more than a mere expectation resulting from an anticipated continuance of a present general law. State v. Railroad, 242 Mo. 375; Cooley on Constitutional Limitations (7 Ed.), pp. 402, 511; Balance- v. Gordon, 247 Mo. 119; Ferguson v. Gentry, 206 Mo. 202; Bartlett v. Ball, 142 Mo. 28; Yen-able v. Railway, 112 Mo. 112; State v. Scudder, 32 N. J. L. 206; Town v. Supervisors, 3 Kern, (N. Y.) 148; Commissioners v. Green, 40 Ohio, 318; United States v. Memphis, 97 U. S. 291.

      Joseph W. Folk, Nelson Thomas, Abbott, Fauntleroy, Cullen & Edwards and John C. Vaughniox respondent-relator.
    (1) The Income Tax Act of 1917, with Section 32, makes a separate and distinct class of persons who pay both property tax and income tax, the tax exacted from persons in such class being “the extent that their income taxation exceeds their property taxation.” Therefore Section 32 is not an exemption' from taxation. Laws 1917, pp. 524-538; Ludlow-Saylor Wire Co. v. Wollbrinck, 205 S. W. 200; State ex rel. American Mfg. Co. v. Koeln, 211 S. W. 34; State ex rel. Bolens v. Frear, 148 Wis. 512. (2). The operation of a tax is governed by the status.of the law at the time the tax accrues and is assessed, rather than by a different law which may afterward come into existence, prior to the time the tax must be paid. 37 Cyc. pp. 1171, 1557-8; Cooley on Taxation (3 Ed.), pp. 499-500; State ex rel. v. Ry. Co., 101 Mo. 120; People v. McWethy, 165 111. 222; People ex rel. v. Thatcher, 95 111. 109; In re Sloan’s Estate, 154 N. Y. 109. (3) Statutes relating to the enforcement of liens and the collection amounts due as taxes, do not apply to taxes levied before the law goes into effect, though in force at the time of collection of the tax. 2 Page and Jones on Taxation, sec. 3113; People ex rel. v. Thatcher, 95 111. 109; Murphy v. People, 120 111. 234; Merriam v. People, 160 111. 555; Auditor General v. Judge, 58 Mich. 345; Shaw v. Morley, 89 Mich. 313; Pierpont v. Osmun, 118 Mich. 472. (4) The income tax upon 1918 incomes and the property tax upon 1918 assessments were both, at the time the repeal of Section 32 of the 1917 Income Tax Act took effect, fully accrued, assessed and levied only the collection thereof remaining to be performed); therefore the repeol of Section 32 affects only taxes subsequently levied. State ex rel. v. Koeln, 211 S. W. 32; Authorities above cited; Black on Income, p. 528. (5) TJnder Secs. 8060'and 8062, R. S. 1909, the repeal of Section 32 of the 1917 Income Tax Act, after proceedings had begun for the levy, assessment and collection of taxes on property and incomes for 1918, cannot affect the result of such proceedings, nor affect the rights of relator to deduction of his property taxes from the amount of his income taxes, as said rights were fixed by law at the beginning of said proceedings. State ex rel. Shaw v. Baker, 32 Mo. App. 98; State ex rel. Wayne County v. Hackmann, 199 S. W. 990.
   BLAIR, P. J.

Section 32 of the Income Tax Law as passed in 1917 (Laws 1917, p. 538) reads as follows:

“ Any person, corporation, joint-stock company, association or insurance company who shall have paid a tax assessed upon his real or personal property to the State during any year shall be permitted to exhibit the receipt or receipts thereof to the assessor" to the full amount in the payment of income taxes assessed against .such person, corporation, joint-stock company, association or insurance company during said year.”'

Prior to March 1, 1919, respondent duly made return of its income for the year 1918, and a tax thereon of $1138.94 was assessed as income tax for that year. By the Act of May 26,19ÍL9 (Laws 1919, pp. 721, 722), effective on that date, the Legislature repealed Section 32 of the Income' Tax Law of 1917.

It is alleged that thereafter, during 1919, respondent paid to appellant property taxes aggregating $1024.38 and received receipts therefor. Subsequently and- on December 17, 1919, respondent exhibited these receipts to appellant and therewith tendered $114.91 and demanded that the amount of the property-tax receipts be credited on the income tax bill of $1138.94, and the property-tax receipts and money tendered be accepted in full discharge thereof, and a receipt in full for the income tax be issued and delivered' to respondent. Appellant refused to comply with this demand, and the present proceeding was begun to coerce compliance. From an adverse judgment the collector anneals.

Appellant contends that respondent had no right to the demanded credit, because the section which gave that right had been repealed prior to respondent’s payment of its property taxes and demand of credit therefor. The gist of respondent’s contention is that a right to the credit had vested prior to the repeal of Section 32 of the Act of 1917 and that repeal could not destroy or affect such vested right.

In the Act of May 6, 1919 (Laws 1919, p. 718, et seq.), which took effect in August, 1919, the Legislature specifically applies the increased tax and reduced exemptions to incomes for the year 1919 and thereafter. No such limitation appears in the Act of May 26, 1919, which repealed Section 32 of the Act of 1917, but an emergency clause was appended which purports to put the repeal in immediate effect for the reason that Section 32 “is confusing and misleading, and in practical results destructive of the end sought by said act,” which is said to create “an emergency within the meaning of the Constitution.” This gives some hint of what the Legislature had in mind, but does not reach the question whether respondent had acquired a vested right to deduct its property taxes, paid in 1919, from its income tax for 1918, payable in the fall of 1919, which was beyond the reach of legislative action.

Appellant agrees with respondent that the Legislature cannot destroy a vested right. He contends that respondent had required no vested right to the claimed deduction prior to the repeal of Section 32. In State ex rel. v. Koeln, 211 S. W. p. 31. et seq., it was held that the property taxes deductible under Section 32 were those which became due and payable in the same year in which the income tax from which they were deductible became due and payable. Respondent’s income tax for 1918 was assessed prior to March 1, 1919. The assessment was then complete, and the mode and amount of that assessment was exactly the same as if respondent had owned no property subject to assessment and taxation on June 1, 1918. At the time respondent’s income tax was assessed on income for 1918 (March 1919) respondent, so far as it alleges, had paid no property taxes which were deductible under Section 32, and, of course, had neither received nor presented any receipts therefor. The time therefor had not arrived, under the decision in State ex rel. Koeln, supra. The same thing was true at the time Section 32 was repealed, May 26, 1919. What, then, was the right or privilege which had accrued to respondent on May 26, 1919, which is said to be beyond the reach of legislative interference? The Income Tax had been assessed for 1918 but would not become due until the fall of 1919; and unless respondent paid property taxes in the fall of 1919 and presented receipts therefor to the collector (State ex rel v. Koeln, supra), payment for the full amount of the income tax could have been compelled even had Section 32 not been repealed. The right to a deduction of property taxes had not accrued either when the income tax was assessed or when Section 32 was repealed. It could never have accrued under Section 32 until after (1) payment of property taxes, and (2) presentation of receipts therefor. The power of the State to impose the income tax without this privilege of reduction under Section 32 is not questioned. No greater income tax was assessed than would have been assessed had the Act of 1917 not contained Section 32 at all. The assessment was not reduced or affected by that section. Its provisions related to the time of payment and authorized certain deductions at the time of collection upon conditions with which the taxpayer might or might not comply, as he saw fit. The class entitled to these reductions could not come into actual existence until there was a compliance, by the taxpayers, with the conditions of Section 32. Until that time there was merely a privilege available upon conditions stated. This was all respondent had when Section 32 was repealed — i. e. an “expectation based upon the continuance of” Section 32, and this was not a vested right. [State v. Railroad, 242 Mo. l. c. 375.]

There is nothing in Ludlow-Saylor Wire Co. v. Wollbrinck, 275 Mo. 339, which indicates a contrary view. So far as 'that decision discusses Section 32 it was dealing with the question of the constitutionality of the section. It viewed the “class” created by that section as it would exist after income taxpayers had paid property taxes and demanded and received credit therefor on their income taxes. The question discussed was whether this was permissible under the Constitution. The court did not then decide or attempt to decide the question determined in State ex rel. v. Koeln, supra, or the question whether the class referred to came, into existence at one time or another. The concurring opinion of the learned writer of the Ludlow-Saylor decision, which he filed in the Koeln case,, fully justifies this view, as does the nature of the question discussed in the Ludlow-Saylor case. Neither are the Wisconsin decisions in point. Under the income tax law of that State the time of payment has nothing to do with the accrual of the right to the deduction of property taxes from income taxes. It appears that in that State the right of deduction accrues before the income taxes are assessed, [Van Dyke v. Milwaukee, 159 Wis. 460.] Had the right so accrued in this case, the Wisconsin decisions would be applicable and respondent’s position sound. As already pointed out, such is not our law.

The briefs are in agreement upon practically every question except that which we have discussed. We hold that respondent had no vested right at the time of the repeal of Section 32 which prevents giving effect to that repeal in this case.

The judgment is reversed.

All concur, except Wood-son, J., absent.


author: WALKER, C. J. GRAVES, J. WILLIAMS, J.

text:
    GUY HAYES v. SHEFFIELD ICE COMPANY, Appellant.
    In Banc,
    May 21, 1920.
    1. APPELLATE PBAOTICE: Case Certified from Court of Appeals. Where one of the judges dissents from a decision of the Court of Appeals and certifies the case to the Supreme Court on the ground that the ruling of the majority is in conflict with principles announced in certain previous decisions of the Supreme Court, the case in the Supreme Court must be considered and determined as.if it were a direct appeal from the circuit court.
    2. JUDGMENT: Satisfaction in' Absence of Counsel. A satisfaction by plaintiff of a judgment for $4000 against defendant in a personal injury ease, as the result of a settlement for $500 made between plaintiff and defendant’s counsel, in the absence of plaintiff’s counsel, who prosecuted the case upon a contingent fee, will be set aside, upon motion, if unfairly secured.
    3. NEGLIGENCE: Safe Place: Assurance: Inspection: Ordinary Care. Plaintiff, a nineteen-year-old boy, inexperienced in wrecking old buildings, was employed as a laborer to assist in tearing down an old building previously used as an ice house. Directed by defendant’s president to go on the roof and tear off the sheeting from the rafters he hesitated, and was assured by defendant’s president that there was no danger, that he knew the undertaking was safe and that the work could be done safely. Thus assured, plaintiff went upon the roof, and while engaged in removing the sheeting a beam upon which the rafters rested gave way, the wall fell and he was precipitated to the ground thirty-four feet below. Held, first, that plaintiff was bound to discover only such defects as would have been apparent to one of ordinary prudence, while defendant was required to look for defects and to know of their existence if by the exercise of care they could have been discovered; second, that, under the facts, more than mere physical inspection of the exterior of the work was required of defendant, since the building was old and the use to which it had been put caused its timbers to decay more rapidly than in the ordinary course of nature; and, third, in view of the assurance, plaintiff had a right to assume that defendant had furnished him a safe place in which to work, unless by the exercise of ordinary care he could have discovered the rotten beam.
    4. -: -: Inspection: Duty of Master. The duty of inspection by the master, in order to provide his servant with a safe place in which to work, is affirmative, and must be constantly fulfilled and positively performed.
    5. -: -: Assurance of Safety. Assurances by the master that the place in which his servant is directed to work is safe may be something more than an expression of an opinion; they may be representations of a fact. Where an inexperienced laborer, directed to go upon the roof of an old ice house and remove the sheeting and other roofing parts, hesitates and is told by the defendant’s president that there is no danger, that he has wrecked enough old buildings to know whether the undertaking is safe and that he would not have hired him to do the work if it could not be done safely, the assurance is a representation of fact, upon which the laborer has a right to rely.
    6. -: -: ¡Wrecking Old Building. The rule in this jurisdiction is that the master is required to furnish a safe place to his servant engaged in tearing down an old building.
    7. -: -: Contributory Negligence: Burden of Proof: Instruction. The burden of proving the affirmative defense of contributory negligence is on defendant; and where such defense is pleaded, held, by WALKER, C. X, with whom WILLIAMSON, X, concurs, that the court should not instruct the jury that “the burden of proof in this case is upon the plaintiff,” there being no burden on plaintiff to show, in the first instance, that he was not guilty of contributory negligence, and such an instruction in this case, if given, would have misled the jury, since, the evidence being uncontradicted, there was no room for fair and reasonable men to differ in their conclusions; but held, by GRAVES, X, with whom GOODE, X, concurs, that the instruction declares the law in a proper case, but its refusal was harmless in this case, because defendant offered no evidence.
    8. INSTRUCTION: Non-Direction. An assignment that non-direction to the jury was error, if urged by appellant for the first time in the appellate court, comes too late to entitle it to consideration.

      Certified from Kansas City Court of Appeals.— Hon. O. A. Lucas, Judge.
    Judgment of Circuit Court Affirmed. -

      R. E. Ball and Justin D. Bowersock for appellant.
    ■ (1) In the case of Barton v. Bridges, 126 Md. 676, 95 Atl. 359, the court cites Atlantic Delaine Co. v. James, 94 U. S. 207, where it is held that power to vacate satisfaction of a judgment “ought not to be exercised except in a clear case, and never for-alleged fraud unless the fraud is made clearly to appear; never for alleged false representations unless their falsity is certainly proved, and unless the complainant has been deceived and injured thereby.” All three of the judges of the Court of Appeals recognized in their separate opinions that such is the law. Judge Johnson, whose findings of fact and conclusions are recommended for adoption in the divisional opinion, found that the plaintiff lied over and over again; that he showed himself morally perverted; that he not only was not deceived, but'himself undertook to deceive his attorney; that it was his case and his judgment and he could do as he pleased with it; and that this motion to vacate was his motion and not that of his attorneys. Assuming, as he had no right to do, that the court might balance and estimate the relative capacity of plaintiff on the one hand and defendant’s counsel on the other, Judge Johnson proceeds to the conclusion that somehow or other, although the specified frauds were not proven, and although the plaintiff knew full well when he took the money, after conference with his attorney at the court house, that he was acting contrary to his attorney’s advice, still the court ought to substitute its notions for those of the plaintiff. Since when has it been the law that an individual who is sui juris and competent to attend to his own business, in the absence of fraud or deception perpetrated against him, could not for a valuable consideration settle his case ? There is no decision of any court in England or America that will sustain the position taken by Judge Johnson. The’pending motion specified certain alleged false representations. The .proof taken confessedly failed m toto* to sustain any of those charges. (2) We briefly call attention to the personal equation. This motion is bottomed on alleged false representations made by Mr. Porter. Those allegations are absolutely without foundation. Every member of this court has been a practicing lawyer and can realize the gravity to any member of the bar against whom such charges are made. If the present counsel of the defendant thought for one moment that Mr. Porter.was guilty of fraud in this matter, we hope to be believed whin we say that we would not defend him. Being thoroughly satisfied, after most careful study of the evidence, that he was not guilty as charged, we earnestly appeal to the court to deny this motion and exonerate Mr. Porter. We beg the court to carefully read the opinion of the judges of the Court of Appeals, 168 S. W. 294. (3) Plaintiff had a right to settle his case without the consent of his attorneys. Young v. Renshaw, 102 Mo. App. 173; Whitwell v. Aurora, 139 Mo. App. 597; Stephens v. Railway, 157 Mo. App. 656. (4) The burden is upon plaintiff to show that knowingly false statements were made to him and that he believed and relied upon them. Borchers v. Barckers, 143 Mo. App. 84. (5) Fraud can only be established by clear proof. Holland v. Anderson, 38 Mo. 59; Laughlin v. Fairbanks, 8 Mo. 367. (6) Plaintiff had two consultations with his attorneys before the settlement was closed; therefore he cannot prevail on his motion. 2 Cooley on Torts, 959; Raff el v. Epworth, 107 Mich. 143; Vemol v. Vernol, 63 N. T. 45; Davis v. Phoenix Ins. Co., 81 Mo. App. 264; 20 Cyc. 32. (7) Plaintiff’s evidence is unworthy of belief and insufficient if believed. (8) The consideration was not inadequate.

      John H. Atwood and Parle $ Brown for respondents.
    (1) A cause transferred from a court of appeals to the Supreme Court 4s to be heard as though appealed directly to the Supreme Court, and jurisdiction does not depend upon the actual existence of a conflict of opinions. Const. Mo. Art. VI (Amdmt.) sec. 6; Kellei v. Summers, 262 Mo. 324; Sutton v. Cole, 155 Mo. 206; State ex re!, v. Hickman, 150 Mo. 626; Johnson v. Fecht, 185 Mo. 335; Epstein v. Railroad Co., 250 Mo. 7. (2) The settlement and release were fraudulently obtained and should be set aside. (3) The circuit court properly denied defendant’s request for peremptory instructions, (a) The Court of Appeals in the Boten case said: “The danger to plaintiff arose not from the general liability of the building to fall, but from a defective condition at one place known to defendant and unknown to plaintiff; and defendant, without remedying said defect assured plaintiff it was safe.” Boten v. Ice Co., 180 Mo. App. 101. (b) The parties were not on equality in this situation. Defendant was obliged to search for defects in order to discover whether it was a safe and prudent thing to order inexperienced boys into such a place. G-utridge v. Mo. Pac. Ry. Co., 105 Mo. 520; Nicholds v. Plate Glass Co., 126 Mo. 65; Clark v. Iron Co., 234 Mo. 454; Cody v. Luck, 187 Mo. App. 337. (3) When an appliance is old it requires careful inspection, and tb • master is not justified in relying upon merely an inspection by his eyes. Pendegrass v. Railroad, 179 Mo. App. 531; Nowotny v. Brewing Assn., 185 Mo. App. 718; Spaulding v. Lumber Co., 183 Mo. App. 656. (d) Plaintiff was justified in relying upon the assurance of def end-ant’s president. Sullivan v. Railroad, 107 ,Mo. 66; Swearingen v. Mining Co., 212 Mo. 538. (4) The court properly refused defendant’s instruction 7. The instruction cast the entire burden of proof upon the plaintiff. There was an issue of contributory negligence upon which the burden was upon the defendant. Lane v. Railroad, 132 Mo. 18; Thompson v. Railroad, 51 Mo. 192; Mitchell v. City of Clinton, 99 Mo. 158. Where the evidence is uncontradicted the court may properly refuse an instruction on the burden of proof. Hughes on Instructions to Juries, pp. 186 to 187; Davidson v. Transit Co., 211 Mo. 357; Stauffer v. Railroad, 243 Mo. 333; Hauser v. Steigers, 137 Mo. App. 569; Bank v. Inv. Co., 160 Mo. App. 378.
   WALKER, C. J.

Plaintiff, a minor, who sued with his father as next friend, recovered in the Circuit Court of Jackson County a judgment against the defendant for personal injuries in the sum of $4000. The defendant appealed to the Kansas City Court of Appeals. Before the determination of the appeal the plaintiff entered into an agreement with the then counsel for the defendant for the release and acquittance of his judgment against the defendant for the expressed consideration of $500. At the same time defendant’s counsel prepared a stipulation for the dismissal of the appeal to be filed in the Court of Appeals and same was signed by the plaintiff and the counsel for the defendant. The latter, accompanied by the plaintiff, then went to the office of the Clerk of the Circuit Court and the plaintiff signed an entry of satisfaction on the record of, his judgment against the defendant. Counsel for the defendant then paid the plaintiff the sum agreed upon in the settlement. This transaction occurred on the 8th day of September, 1913. On October 2, 1913, counsel for plaintiff, who had prosecuted the action to a judgment for a contingent fee and who had no knowledge at the time of the plaintiff’s settlement with the counsel for the defendant, filed in the Court of Appeals a motion, under plaintiff’s direction, . to get aside the release and satisfaction of the judgment on the ground of fraud and deception alleged to have been practiced upon the plaintiff in the procurement of the settlement.

Testimony was taken under the order of the court in support of the motion and upon a hearing the same was overruled, thus sustaining the settlement. One of the judges dissented and certified the cause to this court on-the ground that the ruling of the majority was in conflict with principles announced in Stonemets v. Head, 248 Mo. 243 and Girard v. St. Louis Car Wheel Co., 123 Mo. 358.

The transcript of the entire proceedings in this case is before us. It includes not only the record of the proceedings in . the circuit court, but in addition the record and the testimony concerning the stipulation to dismiss and plaintiff’s motion to set aside the settlement and the court’s ruling on same.

„ ., , ow onsi ere I. The case comes to us as if upon direct appeal from the circuit court and must be so considered and determined. [Art. VI. sec. 6, Arndt. 1884, . Cons. Mo.; Keller v. Summers, 262 Mo. l. c. 331; Epstein v. Railroad, 250 Mo. l. c. 7; Sutton v. Cole, 155 Mo. 206.]

„ ,. II. We will not burden this opinion with a statement •in detail of the facts and circumstances leading up to the settlement of the plaintiff’s case with the then counsel for the defendant. This phase of the case is not one of pleasant contemplation; and •the facts having been set forth in full in the opinions of the judges of the Court of Appeals (168 S. W. 294), they may be consulted for fuller information. Impartially considered, either as presented in the' majority or dissenting opinions, they present sufficient facts to authorize the branding of the settlement between the plaintiff and the then counsel for the defendant with the badge of fraud under the principles announced in the Stonemets and Girard' cases, supra. It was so held in the dissenting opinion. We therefore approve the facts therein stated and the conclusion reached and hold that the release executed hy the plaintiff of the judgment in his favor in the trial court vand the stipulation based thereon for the dismissal of defendant’s appeal in the Court of Appeals were unfairly procured and should be set aside and for naught held, and as a consequence that plaintiff’s motion filed for that purpose should be sustained.

Safe Place III. This leaves for' consideration the case • upon its merits. The facts in regard thereto, briefly stated, are as follows: Plaintiff, at the time a boy of nineteen years of age, was employed as a laborer by the defendant assas^ i11 the dismantling and tearing down of an old frame building which was owned and had been used by the defendant as an ice. house. Plaintiff was without experience in wrecking old buildings. Defendant’s president directed plaintiff and others who had been employed to go up on the roof some 34 feet from the ground and tear off the sheeting and other roofing materials, that the rafters might be removed. Plaintiff and the others hesitated, when they were assured by the president that there was not a Ipit of danger, that he had wrecked enough old buildings to know whether the undertaking was safe and that there was no danger in this instance, that he would not have hired plaintiff and the others to do the work if it could not have been done safely. With these assurances they went up on the roof and while they were there employed in tearing -off the sheeting the plate or beam upon which the rafters rested gave way, the wall fell and the plaintiff and others were precipitated to the ground, timbers and other debris falling upon them. The plaintiff’s injuries from this fall consisted in a broken thigh bone and a bruised back and right arm. He was confined to his bed for 11 or 12 weeks as a result of these injuries and it was two months thereafter before-he was able to walk without assistance. His broken leg, upon the healing of the fracture, was crooked and -2 1/2 inches shorter than the other leg. These facts are not attempted to be controverted. The gist of the petition is that the defendant directed the plaintiff, an inexperienced hoy, to engage in work at a place of danger without warning him of the peril of the employment.

As the Kansas City Court of Appeals said in a case brought by another against defendant for injuries received at the same time as those of the plaintiff, “the injury to plaintiff arose, not from the general liability of the building to fall, but from a defective condition at one place known to defendant and unknown to plaintiff; and defendant without remedying said defect assured plaintiff it was safe.” [Boten v. Ice Co., 180 Mo. App. l. c. 101.]

"When the facts are such as in the case at bar, more than mere physical inspection of the exterior of the work is required of the defendant. The building had been erected for many years. The use to which it had been put was such as to cause its timbers to decay or become rotten more rapidly than in the ordinary course of nature.

The defendant was required to look for defects, while the plaintiff was bound only to discover what would have been apparent to one of ordinary prudence. The defendant was held to know the defects if by the exercise of care they could have been discovered. The plaintiff had the right to assume, especially in view of the defendant’s assurances, that the latter’s president had furnished him with a safe place to work, unless he could by the exercise of ordinary care have discovered the rotten beam which caused his injury and which at the time was covered with sheeting, which formed a part of the roof. It appears, therefore, that the plaintiff and the defendant did not have an equal opportunity to discover the defect which caused the injury; but if such equal opportunity had been, afforded this would not defeat plaintiff’s right of recovery, for the reason that it was not his duty, although it was that of the defenant, to look for such defects as were not open to observation. TJhe duty of inspection as to the master is affirmative and must be continually fulfilled and positively performed. [Thornsberry v. Railroad, 178 S. W. l. c. 200; Crowl v. Am. Linseed Co., 255 Mo. 305; Clark v. Iron Co., 234 Mo. l. c. 454; Czernicke v. Ehrlich, 212 Mo. l. c. 395; Gutridge v. Railroad, 105 Mo. l. c. 525; Nicholds v. Glass Co., 126 Mo. l. c. 65.]

Under such circumstances as are present in the case at bar, all of which were known to defendant, or could have been known by the exercise of ordinary care, a careful inspection was required before directing the plaintiff to go to work on the building. [Nowotny v. Brewing Assn., 185 Mo. App. 718; Spaulding v. Lumber Co., 183 Mo. App. 656; Pendegrass v. Railroad, 179 Mo. App. 531.]

The assurance of safety given by the defendant’s president to the plaintiff was something more than an expression of opinion — it was a representation of a fact. The Kansas City Court of Appeals in the Boten case, supra, pertinently appropriate here because the facts are the same in both cases, said: “It is thus seen that the statements of the president were not the expression of a mere opinion, nor were they so general as not to apply to the place where plaintiff was working when he fell. Nor does the fact that the assurances of safety were given on one day and the fall occurred on another, while the president was absent, change the situation.”

The case at bar is analogous to Werner v. Street Ry. Co., 138 Mo. App. 1, 8, where the court, says:

“Plaintiff was young and inexperienced and evidently had no knowledge of the hidden dangers lurking-in the place where defendant sent him to work. It is apparent the place was highly dangerous. Under ordinary conditions, the close proximity of high currents of electricity made his task dangerous and called for the exercise of great care and caution, but with the protecting barriers to the transmission of electricity weakened or destroyed by the wet condition of the car and trolley pole, the act of defendant, in requiring an inexperienced and ignorant workman to go there and work with a pole that contained what was practically an uninsulated wire charged with a heavy current of electricity, was negligence of a pronounced type. It is fair to presume defendant knew of plaintiff’s inexperience and in ordering him into that trap it 'sent him blindfolded to play with death. We have present all the elements of a cause of action based on the negligence of the master in sending an inexperienced servant to work in a dangerous place without warning, and the injury resulting from such negligence does not belong to one of the natural and incidental risks of the employment.”

The doctrine in Boisvert v. Ward, 199 Mass. 594, cited by the defendant, that the master is not required to furnish a safe place for a servant engaged in tearing down a building is not the rule in this jurisdiction. We have held directly to the contrary and in accord with reason in Sullivan v. Railroad Co., 107 Mo. 66.

The conclusion is authorized that no error was committed in refusing to sustain defendant’s request for, a peremptory instruction and its assignment to this effect is overruled.

IY. The refusal of the trial court to give instruction numbered seven asked by defendant is assigned as error. It is as follows:

Burden. “The court instructs the jury that the law places the burden of proof in this case upon the plaintiff and requires him to make out his case to your satisfaction by a preponderance of the evidence, and by a ‘preponderance of the evidence’ is meant the greater weight of all the credible testimony introduced in the case. Unless he has done so, your verdict should be for the defendant.”

The answer contained a plea of contributory negligence. This is an affirmative defense the burden of proving which is upon-the defendant. This instruction cast the burden all upon the plaintiff..

In Mitchell v. City of Clinton, 99 Mo. l. c. 158, we announced the rule oftentimes before and since repeated, that contributory negligence is a defense to be pleaded and proved by tbe defendant; and it is not necessary that its absence should be pleaded or shown by plaintiff in the first instance. See also to like effect Lane v. Railroad, 132 Mo. l. c. 18; O’Connor v. Railroad, 94 Mo. l. c. 155; Petty v. Railroad, 88 Mo. l. c. 312; Buesching v. Gas Co., 73 Mo. l. c. 229; Thompson v. Railroad, 51 Mo. l. c. 192.

Furthermore the evidence for the plaintiff was uncontradicted and the casting of the burden of proof upon the plaintiff as was sought to be done in this-instruction could only have misled the jury and the court’s refusal of the instruction was' therefore not error. [Stauffer v. Railroad, 243 Mo. l. c. 333; Davidson v. Transit Co., 211 Mo. l. c. 357; Bank v. Inv. Co., 160 Mo. App. l. c. 378; Hauser v. Steigers, 137 Mo. App. l. c. 569.]

While it is true, as we said in Roddy v. Railway, 104 Mo. l. c. 250, that “it is not every case in which there is no conflict in the facts that the court will declare, as a matter of law, the legal effect of the evidence. If, upon all the facts and circumstances, there is room, for fair and sensible men to differ in their conclusions, the jury should decide.” But where, as here, there were no facts and circumstances affording room for fair and reasonable men to differ in their conclusions there was nothing left for the jury to decide. There was no error in the refusal of defendant’s instruction on this account.

' V. The non-direction of the jury, urged by appellant as error for the first time in its brief filed in this court, comes too late to entitle it to our consideration. On appeal, only exceptions ruled on below concern us. [Sec. 2081, R. S. 1909; Hafner Mfg. Co. v. St. Louis, 262 Mo. l. c. 633; Gate City Bank v. Bank, 259 Mo. l. c. 577; Powell v. Railroad, 255 Mo. l. c. 456; State v. Douglas, 258 Mo. l. c. 293; Ross v. Grand Pants Co., 241 Mo. 296; Morgan v. Mulhall, 214 Mo. 462; Brown v. Globe Prtg. Co. 213 Mo. l. c 652.]

To use the rather archaic language of the Hafner case, this point therefore “falls out of the case and is disallowed to the defendant.”

The record presents no error of such a character as to authorize a reversal and the judgment of the trial court is affirmed.

Williamson, J., concurs; Graves, J., concurs in separate opinion, in which Goode, J., concurs; Williams, J., dissents in separate opinion in which Blair, J., concurs; Woodson, J., absent.

GRAVES, J.

(concurring). — I concur in paragraphs .1, 2, 3, 5, and in result of the opinion in this case. I also concur in the result of paragraph 4, but do not concur in all of the reasoning in this paragraph contained. As to this instruction No. 7, asked by the defendant, it declares the law in a proper case, but its refusal was harmless in this case, because the defendant offered no evidence. The only evidence was that for plaintiff. Goode, J., concurs herein.

WILLIAMS, J.

(dissenting). — I am unable to agree with the majority opinion herein, but dissent therefrom and concur in the views expressed by Ellison, J., in the majority opinion of the Kansas City Court of Appeals in this case which will be found reported in 168 S. W. 294. Blair, J., concurs herein.