source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    LOUIS HOUCK et al., Appellants, v. CAPE GIRARDEAU WATERWORKS AND ELECTRIC LIGHT COMPANY.
    Division One,
    December 23, 1908.
    APPELLATE JURISDICTION: Transfer to Supreme Court: All Judges Concurring. .Where all the judges of the Court of Appeals agree to a decision which they say is in conflict with the last previous ruling of the Supreme Court, the case should not he transferred to the Supreme Court, on the theory that the last previous decision was in conflict with a prior decision Oi the Supreme Court which was not overruled hy the later one. The Supreme Court does not hy such transfer acquire jurisdiction. The Court of Appeals cannot compel the Supreme Court to harmonize its opinions hy raising the question of conflict itself and then certifying it to the Supreme Court for determination. The duty of the Court of Appeals is to follow the last previous decision of the Supreme Court, even though all of its judges consider that decision in effect though not expressly overruled a prior decision of the same court.
    Transferred from St. Louis Court of Appeals.
    Remanded to St. Louis Court oe Appeals.

      Giboney Houclc for appellants.

      Wilson $ Dempsey for respondent.
   GRAVES, J.

We stall not go into the merits of this case. The case reaches us from the St. Louii. Court of Appeals. The per curiam opinion hy which it reaches us reads:

“Appellant insists that this case ought to he certified to the Supreme Court because our decision is in conflict with the decision of that tribunal in Crone v. Stinde, 156 Mo. 262. The facts of this case, as stated in the petition, so greatly resemble those in Howsmon v. Water Co., 119 Mo. 304, that we felt controlled by the decision of the Supreme Court in the latter case; but it looks like the principle on which the Howsmon case was decided was disregarded in the later case of Crone v. Stinde, and all the judges of this court deem the decision of the present case opposed to the logical deduction to be drawn from the decision of the Supreme Court in Crone v. Stinde. Now, in Railroad v. Lowder, 59 Mo. App. 3, an opinion was delivered in which all the judges of this court concurred; but all of them deemed that decision opposed to the principle of a previous decision of the Supreme Court and therefore certified-it to the Supreme Court for final decision. That court, on such certificate, entertained jurisdiction of the cause and decided it. Its decision is reported in 138 Mo. 533. If a case may be certified from this court to the Supreme Court under such circumstances, and it seems from the decision of the Lowder case that it may, we deem it highly important that the present case should go there for final decision inasmuch as it is argued that the rule of decision adopted in Crone v. Stinde is opposed to the rule of decision followed in the Howsmon case and, therefore, the. latter is no longer sound law in this State. It is ordered that this cause be certified to the Supreme Court, as the judges of this court deem it opposed to the reasoning of the opinion and the principle of the decision in Crone v. Stinde. They follow the Howsmon decision as exactly in point on identical facts and a controlling authority, noticed but not overruled or condemned, in the Crone case.”

The constitutional provision as to certifying cases from the Courts of Appeals to this court, reads: “When any one of said Courts of Appeals shall in any cause or proceeding render a decision which any one of the judges therein sitting shall deem contrary to any previous decision of any one of said Courts of Appeals, or of the Supreme Court, the said Court of Appeals must, of its owu motion, pending the same term and not afterwards, certify and transfer said cause or proceeding and the original transcript therein to the Supreme Court, and thereupon the Supreme Court must rehear and determine said cause or proceeding, as in case of jurisdiction obtained by ordinary appellate process’; and the last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said Courts of Appeals. ’ ’

It will be noticed that this section of the Constitution says, “And the last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said Courts of Appeals.” In the opinion by which the case is certified here it is agreed by all the judges of the St. Louis Court of Appeals that their opinion is opposed to the views of this court in Crone v. Stinde, 156 Mo. 262. They also say they followed the earlier case of Howsmon v. Water Co., 119 Mo. 304. There is no purpose expressed in the constitutional provision authorizing the Courts of Appeals to compel this court to harmonize its opinions, by raising the question in the Courts of Appeals, and then certifying it here for determination. In substance, that is what is done here.

Nor does it follow that a previous opinion of this court has not been overruled, because not specifically so stated in a later opinion. The Supreme Court of the United States often recedes from positions taken in previous cases, but you rarely see where one has been overruled in express terms. By this discussion, we do not want to be understood as indicating that the Crone v. Stinde case overrules the earlier case of Howsmon v. Water Co. That question is one for the Court of Appeals to determine. If it does in fact or in effect overrule the previous case, and is itself that last expression of this court upon the subject, then the duty of the Court of Appeals is clearly marked out by the Constitution. [Seabord National Bank v. Woesten, 144 Mo. 407.]

The learned judges of the Court of Appeals, as indicated by the words of their opinion, evidently entertained some doubt of their right to send the case here, but cite us to the case of Railroad v. Lowder, 59 Mo. App. 3, and the same case in 138. Mo. 533. The Lowder case came here upon a certificate very similar to the case at bar, and it is true that we assumed jurisdiction and determined the case. In so doing the question of our right to assume jurisdiction was not discussed. It was discussed later in the case of Bank v. Woesten, supra.

To our mind it is clear that the Constitution imposes upon the Courts of Appeals the duty to determine for itself “the last previous rulings of the Supreme Court” and when it so determines, the further constitutional mandate is clear.

Upon the certificate before us we shall not assume jurisdiction in this case, but will transfer it back to the St. Louis Court of Appeals, without expression of opinion upon the merits of the question raised by the certificate bringing the cause here.

It is therefore ordered that this cause be sent back to the St. Louis Court of Appeals for final disposition.

All concur.


author: WOODSON, J.

text:
    THE STATE ex rel. JOHN A. PEARSON v. LOUISIANA & MISSOURI RIVER RAILROAD COMPANY and CHICADO & ALTON RAILROAD COMPANY, Appellants.
    Division One,
    December 23, 1908.
    1. TAXATION: Railroad Bridge: Assessment. A railroad bridge, which was an integral part of the railroad, as the evidence shows the bridge in question in this case to be, was not taxable as separate property for the taxes of 1897.
    2. -: -: -: Double Taxation. Where the State Board of Equalization assessed the railroad bridge for the taxes for the year 1901 as an integral part of the railroad line, under and by authority of the statutes, and the railroad company paid the taxes so assessed, separate taxes assessed against the bridge as a separate structure are not collectible. _ Double taxation is not permitted.
    3. -: -: Toll Bridges: Intrastate and Interstate Bridges. The statute of 1899 (Sec. 9387, R. S. 1899) makes no distinction, in attempting to define toll bridges, between intrastate and interstate bridges. It does not mean that all bridges over streams dividing this State from another State shall be subject to separate taxation, and only bridges over navigable streams within the State which charge a toll for crossing the same shall be so taxed.
    4. -: -:-: -: -: Grammatical Construction. The grammatical rule of interpretation of a statute should be considered and applied along with other rules of construction where there is no conflict between them. The main provisions of section 9387, Revised Statutes 1899, are: “All bridges over streams dividing this State from other States, and all bridges across or over navigable streams within this State, where the charge is made for crossing the same, shall be subject to taxation,” etc. Held, that the clause “where the charge is made for crossing the same” modifies both the preceding clauses, and applies to both classes of bridges alike. That is shown by the punctuation, and no other grammatical construction would be allowable.
    5. -: -: -: -: Reasonable Construction. Uncertain and ambiguous words of a statute should always be construed, if possible, to produce a reasonable and just result. To hold that the clause in section 9387, Revised Statutes 1899, namely, “Where the charge is made for crossing the same,” refers only to bridges over streams within the State would be to make an unjust and unreasonable discrimination between interstate and intrastate bridges, and to hold that all interstate bridges are taxable and only such intrastate bridges as are toll bridges are taxable.
    6. -: -: -: -: In Interest of Validity. Where the language of a statute is susceptible of two interpretations, one of which upholds its validity and the result of the other would be to declare it unconstitutional and void, that interpretation which upholds its validity will be adopted.
    7. -: -: Illegal Charges Not Tolls. A charge by a railroad company of more money per mile for carrying passengers across an interstate bridge that is an integral part of its line than is charged elsewhere along the line, does not make the bridge a toll bridge, but such charges are illegal and extortions. If the bridge is an integral part of the railroad line the company has no legal right to collect tolls, or to charge a 'greater mileage for carrying passengers across it than it charges for ' carrying them over other parts of the road.
    8. -: -: Louisiana Bridge: Not Toll Bridge. The Chicago & Alton railroad bridge across the Mississippi River at Louisiana, is not a toll bridge, but being an integral part of the railroad line, and being included in the tax assessment of the railroad line and properties as a part thereof, is not subject to separate taxation as a separate structure, under section 9387, Revised Statutes 1899.
    9. -; -: Assessment by Mileage Rule. An assessment, of a railroad bridge by the “mileage rule” as an integral part of the entire roadway in the State is not unjust because it deprives the county in which it is situated of the benefit of all taxes arising from its proper valuation. That valuation, according to that rule, is added to the per-mileage assessment of the whole line within the State, and distributed among the counties through which the road runs according to the number of miles in each, and that is not unjust.
    10. -: -: -: Just Assessment. From the standpoint of absolute justice all non-toll railroad bridges should not be considered at all in fixing the value of railroads for taxation purposes, whatever their size or cost of construction, except in so far as they constitute so many feet or miles of the road to be assessed. They have not so much intrinsic or commercial value as the same length of road in a level country.
    Appeal from Pike Circuit Court. — Hon. D. H. Eby, Judge.
    Reversed,

      Scarritt, Scarritt <& Jones for appellants.
    (1) The second count for the taxes for 1897 is disposed of by the decision of this court in State ex rel. v. Railroad, 196 Mo. 523. (2) In 1899' the statute in question was amended, and as amended was carried forward into the revision of 1899' and designated as section 9387. The decision in the above-entitled cause is decisive of this case, and this bridge under the amended statute is not taxable as a separate structure because (1) it is an integral part of defendants’ railroad and has already been taxed as such, and the amended statute, like the old statute, does not attempt to provide for double taxation, and (2) the amended statute does not attempt to tax as a separate structure any but toll bridges, and this bridge is not a toll bridge in the meaning of that statute. The clause “where the charge is made for crossing the same” applies to “bridges over streams dividing this State from another State,” as well as to “bridges across or over navigable streams within this State.” Endlich on Interp. of Stat., secs. 81, 414; Fisher v. Connard, 100 Pa. St. 63; Gyger’s Estate, 65 Pa. St. 311; Eby’s Appeal, 70 Pa. St. 311; In re Ah Tie, 13 Fed. 291; Plum v. Kansas City, 101 Mo. 533; St. Louis v. Lane, 110 Mo. 259; French v. Teschemaker, 24 Cal. 554. (3) A bridge across a stream between two States is an instrument of interstate commerce. Bridge Co. v' Kentucky, 154 U. S. 204; Leloup v. Mobile, 127 U. S. 640; Webber v. Virginia, 103 U. S. 351; Walling v. Michigan, 116 U. S. 457; State v. Furbush, 72 Me. 495; Welton v. Missouri, 91 U. S. 275. Respondent’s construction of section 9387 and the classification of bridges contended for by him would be a discrimination against an interstate bridge in favor of an intrastate bridge, and would be putting a burden upon an instrument of commerce such as “amounts to a regulation of it, which belongs solely to Congress.” (4) The bridge in question is not a toll bridge within the meaning of section 9887, R. S. 1899. (a) It will be conceded that the owner of this bridge over the Mississippi river may not lawfully conduct the same as a toll bridge unless it is expressly authorized thereto by an act of Congress. Such rentals as are authorized and provided for in the act of Congress, 16 U. S. Statutes at Large, p. 473, are not tolls in the sense that the word is used in section 9387. State ex rel. v. Railroad, 97 .Mo. 352. (b) There is no proof that tolls are exacted for crossing the bridge in question, (c) The claim of plaintiff that this is a toll bridge is based solely upon some testimony to the effect that the railroad fare charged by defendant company from Louisiana, Missouri, to Roodhouse, Illinois, and certain intermediate points, was greater than that charged between Louisiana and local points in Missouri, equally distant respectively from Louisiana. There is no proof that such excess tariff was toll for crossing the bridge in question. All the testimony upon this point was that it was not bridge toll. Plaintiff contends, however, that it was unlawful during the years in question for defendant company to charge more than three cents a mile between Louisiana and the Illinois points aforesaid; that the court must presume that the defendant was not breaking* the law and therefore that the excess charge was toll across the bridge. There are several flaws in the plaintiff’s logic. In the first place, it is not shown that it is lawful for the defendant company to charge a toll of twenty-five cents per person for crossing* the bridge. It is not authorized by the bridge charter. In the second place it is not shown that a bridge toll was the only possible explanation compatible with law, of the excess railroad fare. The excess charges may be accounted for by mistake. Payne v. Railroad, 129 Mo. 420; Bigelow v. Railroad, 48 Mo. App. 367; U. S. v. Ross, 92 IT. S. 283. (5) (a) The bridge in question being an integral part of the railroad line is not taxable under section 9387, R. S. 99. State ex rel. v. Railroad, 97 Mo. 354; State ex rel. v. Railroad, 196 Mo. 523; State ex rel. v. Bridge Co., 109 Mo. 253. (b) The bridge in question is an integral part of defendants ’ railway line. The evidence is clear, convincing and uncontradicted upon this point. State ex rel. v. Railroad, 97 Mo. 348; Bridge Proprietors v. Hoboken Co., 1 Wall. 116; Railroad v. Supervisors, 48 Wis. 666; Anderson v. Railroad, 117 111. 26; Railroad v. City of Davenport, 51 Iowa 451. Double taxation is unlawful, and is never presumed. State ex rel. v. Pearson, 196 Mo. 523; Tennessee v. Whitworth, 117 U. S. 137. (6) Section 9387 does not authorize the tax in question upon the property described in the petition. It is alleged in each count of plaintiff’s petition that the taxes in question were assessed and levied and are a lien upon the “real estate, roadbed, bridge and bridge property aforesaid” (said property being specifically described upon the second and third pages of each count of the petition). That the whole property so described was assessed at a valuation of $150,000 and the petition prays that the whole of said property be impressed with the lien of said property and be sold to pay the same. It was conclusively shown at the trial that the property described in the petition included the roadbed and right of way and defendants’ real estate within the limits of the right of way for more than one-half mile west of the bridge itself. Railroad v. Apperson, 97 Mo. 308; Milner v. Shipley, 94 Mo. 106; Yaughan v. Daniels, 98 Mo. 234; State ex rel. v. Railroad, 114 Mo. 1.

      Ball & Sparrow, Pearson & Pearson, J. D. Hostetler and James W. Reynolds for respondent.
    (1) Appellants contend that both classes of bridges mentioned in section 9387, R. S. 1899; must be toll bridges in order to be taxable as bridges. In other words, that the clause “where a charge is made for crossing the same” refers to both classes of bridges preceding it instead of only the last class mentioned, and bases its contention on the fact that the clause is separated from the clause preceding it by a comma, (a) Punctuation is not to be considered in the construction of statutes. State ex rel. v. St. Louis, 174 Mo. 144. The qualifying clause refers only to the last preceding class for the following reasons: (b) A limiting or qualifying clause, where no contrary intention appears, or where there is nothing in the subject-matter indicating the contrary, refers solely to the last preceding antecedent. Suthex-land on Statutory Construction, sec. 267; Sedgwick on Construction of Statutes (2 Ed.), p>. 226; State ex rel. v. St. Louis, 174 Mo. 142. (c) The phraseology is different from the old statute, sec. 7755, B. S. 1889'. (d) The old statute requiring both classes of bridges to he toll bridges before they could be taxed, it was certainly the intention of the Legislature in this amendment to make such a change as would yield more revenue, and inasmuch as the elimination of the toll feature would increase the number of taxable bridges in the State, this must have been the object of its passage. Pembroke v. ITuston, 180 Mo. 636; Springfield Grocery Co. v. Walton, 95 Mo. App. 533; Westerman v. K. of P., 196 Mo. 728; State ex rel. v. Swanger, 190' Mo. 576. (e) Appellant has difficulty in finding a reason for taxing bridges over streams dividing this State from another State and not taxing bridges in this State unless they make a charge for crossing. To the respondent it appears that this discrimination is just, wise and reasonable, for the reason that as a class the interstate bridges are larger and more valuable than the bridges in this State, (f) Beason and natural justice support respondent’s contention. The authorities cited by appellant in this connection, to the effect that ambiguities in law should be resolved in favor of reason and natural justice, might be cited by the respondent, for as we contend there would be certainly no reason or natural justice in $150,000 worth of property invested in the bridge in question escaping its just proportion of the tax burdens by the paying of taxes based on $8,000 valuation as contended in this case by the appellant. (g) If the foregoing propositions are true, it is not true, as contended by appellant, that the act in question is any discrimination against an instrument of interstate commerce. (2) Charges were made for crossing this bridge. If it be held, as contended by the appellant, that the clause “where a charge is made for crossing the same” refers also to bridges of this character, then the evidence in the record brings the bridge in this case within that definition. It stands not only undisputed but admitted in the record that a charge of practically twenty-five cents was made for each ticket sold to persons traveling over this bridge in addition to the three cent maximum passenger rate per mile, authorized by the statute of Illinois and Missouri. The record also shows it to be a misdemeanor to charge for railroad transportation a rate in excess of the maximum rate. It appearing of record that the defendant cannot account for the excess, otherwise than the passage over the bridge in question, we are justified in presuming that the extra charge of twenty-five cents, instead of being an excess iu transportation rate in violation of the penal laws of the State of Illinois, is a charge for crossing that bridge. Payne v. Railroad, 129' Mo. 420. Tillery v. Railroad, 97 Mo. 348, is not in point. ■ (3) This tax would not result in a double taxation, as appellant assumes. There was some evidence in the case to the effect that the appellant’s mileage on which it paid taxes included this bridge, but the trial court, after hearing all this testimony, affirmatively finds against appellant on this point by finding that the taxes on this bridge for the years in question “are due, delinquent and unpaid.” This court will not disturb the finding of the trial court on this point, even if it be conceded there is no evidence in the record to the contrary. Bank v. Bennett, 114 Mo'. App. 696. (4) Bridge not taxable, as only part of the roadbed. Sec. 9387, R. S. 1899'; St. Louis v. Lane, 110 Mo. 254.
   WOODSON, J.

The collector of revenues of Pike county instituted this suit against the defendants to collect taxes levied against the railroad bridge over the Mississippi river at Louisiana, Missouri, for the years 1897 to 1901, both inclusive, as a structure separate and apart from the railroad.

The petition was in five counts, one for each year’s taxes so levied. The first, third and fourth counts were dismissed, and a trial was had upon the second and fifth, being for the taxes-for the years 1897 and 1901, respectively, which resulted in a judgment in favor of plaintiff, and defendants duly appealed to this court.

The facts regarding the second count of the petition are substantially the same as were those involved in the case of State ex rel. v. Railroad, 196 Mo. 523, except the taxes were assessed for a different year, and the same is true as regards the fifth count, excepting the taxes therein mentioned were assessed under section 7755, Revised Statutes 1889', as amended by section 1 of the Laws of 1899', page 327, the same being section 9387, Revised Statutes ,1899: Reference is made to that case for a full statement of the facts of this case.

I. If we correctly understand respondent’s first contention, it is that the bridge in question is a separate and independent structure from the railroad track and is not an integral part of the railroad line. We have carefully read this record and have found no evidence which would warrant us in so holding, but, upon the contrary, we are clearly of the opinion that the bridge in question constitutes an integral part of defendants ’ railroad line or track.

This same question was before this court in the case of State ex rel. v. Railroads, 196 Mo. 523, and it was there held that this same bridge was not a separate structure but was an integral part of the road, and was not taxable as separate property. And since the taxes sued for in the second count of the petition were levied under the law as it stood when that case was decided, the conclusions reached therein are decisive of said second count of the petition in this case; and we, therefore, hold respondent is not entitled to recover thereon.

As regards the fifth count, that being the only remaining count in the petition, we desire to state that the State Board of Equalization assessed the bridge in question for the year 1901 as an integral part of the railroad line, under and by authority of sections 9338 and 9339, Revised Statutes 1899, in the same manner that it was assessed in the case before cited, and that appellant has paid the taxes so assessed; and, as before stated, this is a suit to recover taxes assessed against the bridge as a separate structure for the same year, which, if permitted, would be double taxation, which is not favored by the law, and it should never be presumed that the Legislature so intended in the absence of enactments to the contrary. [State ex rel. v. Railroads, supra, l. c. 535; Tennessee v. Whitworth, 117 U. S. l. c. 137.]

II. It is virtually conceded by counsel for respondent that under the ruling of this court in the case of State ex rel. v. Railroads, supra, the taxes involved in the fifth count of the petition were improperly levied and are not collectible without said section 7755', Revised Statutes 1889, has been so amended and changed from what it was when that decision was rendered as to authorize the levy in question.

They contend that section 9387, Revised Statutes 1899, the section under which this suit was instituted, was made to change the law from what it was declared to be in the decision in the above-named case, and that under the present law a bridge of this character does not have to be a toll bridge to make it taxable separately. They further insist that the record in this case shows the bridge in question to come clearly within the provisions of the present law and is a taxable bridge.

Appellants contend that the decision in the above-entitled cause is decisive of this case, and that this bridge under the amended statute is not taxable as a separate structure because (1) it is an integral part of defendants’ railroad and has already been taxed as such, and the amended statute, like the old statute, does not attempt to provide for double taxation, and (2) the amended statute does not attempt to tax as a separate structure any but toll bridges and that this bridge is not a toll bridge in the meaning of that statute. Those contentions present the vital legal propositions involved in this litigation, and call for a consideration of the two sections mentioned.

In so far as it is material to the question involved in this case, section 7755 reads as follows: “All bridges over streams in this State, or over streams dividing this State from, other States, owned by joint stock companies, and all such bridges where a toll is charged for crossing the same, which are now constructed, which are in the course of construction or which shall hereafter be constructed, . . . shall be subject to taxation for State, county, municipal and other local purposes, to the same extent as the property of private persons, and taxes levied thereon shall be levied and collected in the manner as is now or may hereafter be provided by law for the taxation of railroad property in this State,” etc.

And said section 9387 reads as follows: “All bridges over streams dividing this State from any other State, owned, controlled, managed or leased by any person, corporation, railroad company or joint stock company, and all bridges across or over navigable streams within this State, where the charge is made for crossing the same, which are now constructed, which are in the course of construction, or which shall hereafter be constructed, . . . shall be subject to taxation for State, county, municipal and other local purposes to the same extent as the property of private persons,” etc.

If we strip section 9387 of all immaterial words and reduce it to its 'smallest possible compass, it would then read as follows: “All bridges over streams dividing this State from any other State, and all bridges across or over navigable streams within this State, where the charge is made for crossing the same, shall he subject to taxation,” etc.

The first clause of the section clearly refers to bridges over rivers separating this State from any other State; and the second clause refers with equal clearness to bridges crossing rivers within this State, and so far there is no controversy between the counsel for the respective parties, but respondent contends that the following words of the section — “where the charge is made for crossing the same, shall be subject to taxation,” etc.- — apply only to the second class or intrastate bridges and have no application to the first class or interstate bridges.

We are unable to lend our concurrence to that contention.

In the first place, that is not the grammatical construction of the section, for the reason that the words of the section defining the two classes of bridges are separated only by a comma, and the words thereof which limit the bridges to be taxed, namely, “where the charge is made for crossing the same,” are separated from the second class of bridges by a comma also', thereby showing the close relation existing between the two classes of bridges, which are the subjects of the legislation, and that the predicate applies to both antecedents and not to the second class only. Had the lawmakers intended that those words should apply to' the second class only the two classes would have been separated by a semicolon, and the comma separating the second class from the words providing what bridges should be taxed would have been omitted, and the section would then have read as follows: “All bridges over streams dividing this State from any other State; and all bridges across or over navigable streams within this State where the charge is made for crossing the same shall be subject to taxation,” etc.

By so punctuating- the section the two classes of bridges are distinctly separated by the semicolon, and by omitting the comma between the second class and the predicate, that is, the words “where the charge is made,” etc., would close up the break and leave no separation whatever between the words defining the second class and the words providing what bridges should be taxed, thereby clearly indicating- according to the grammatical construction that the latter words applied to the second class of bridges only, and not to both.

Counsel for respondent contend, and cite respectable authority in support thereof, that the grammatical construction of a statute does not necessarily show the real and true meaning thereof. That proposition is not denied by counsel for appellants, but they insist, and correctly so, that the grammatical rule of interpretation should be considered and applied along with other rules of construction when there is no conflict between them, and thereby give full force and effect to all. Many courts of last resort have so held.

A similar statute in construction came before the Supreme Court of Pennsylvania in the case of Fisher v. Connard, 100 Pa. St. 63, for interpretation. In that case the court was construing’ an act preserving from discharge under a judicial sale the lien of a mortgage prior to all other liens “except other mortgages, ground rents, purchase money due the commonwealth, taxes, charges, assessments and municipal claims, whose lien, though afterwards aecruing, has, by law, priority given it. ’ ’ In the opinion the court say: “It was argued with much learning and ability by the counsel for defendant in error that the proper antecedent of the word ‘lien’ is ‘municipal claims,’ and that it is to such claims only that the words ‘whose lien though afterwards accruing has by law priority given it, ’ applies. The effect of this construction, if adopted, would be to lift ‘taxes, charges and assessments’ out of the operation of the subsequent qualification, and place them upon the same plane with prior‘mortgages, ground rents, and purchase money due the commonwealth.’ The grammatical construction of a statute is one mode of interpretation. But it is not the only mode, and it is not always the true mode. ¥e may assume that the draftsman of an act understood the rules of grammar, but it is not always safe to do so. . . . Our best judgment is that ‘taxes, charges, assessments and municipal claims, ’ in the Act of -1867, were all intended as antecedents of the word ‘lien,’ and if this makes good law, the grammatical construction is not so important. ’ ’

In the case of Gyger’s Estate, 65 Pa. St. 311, the court construed an act which prescribed that the register should issue letters of administration to- the widow, if any, or to such of the relations or kindred of the decedent as by law might be entitled to the residue of the estate, etc., and then proceeded: “or he may join with the widow in the administration such relation or kindred . . . as he shall judge will best administer the estate, preferring always, of those entitled, such as are in the nearest degree of consanguinity with the decedent,” etc., it was held that the phrase “preferring always,” etc., applied not only to the joint administration with the widow, but also to cases where there was no widow, or where she renounced, i. e., to the first clause, as well as the second.

The cases last cited announce the rule of construction we have applied to the statute under consideration in this case.

And there is another well-settled rule of construction which is also applicable to this statute and which leads to the same conclusion, and that is, uncertain or ambiguous words of a statute should always be construed so as, if possible, to produce a reasonable and just result. [Plum v. Kansas City, 101 Mo. l. c. 533; St. Louis v. Lane, 110 Mo. l. c. 259; Lamar W. & E. L. Co. v. City of Lamar, 128 Mo. 188.] In applying this rule to the facts of this case suppose we assume that the bridges in question is a toll bridge within the meaning of the law, what justice or good reason can be suggested why the Legislature should tax toll bridges over navigable streams separating this State from other States and not tax the same kind of bridges which span such rivers within this State? Absolutely none that we are able to discover, and learned counsel have not attempted to point out any such reason. There would be no more justice or equity in that kind of a statute than there would be in a statute which provides that all farm lands bordering upon any navigable stream separating this State from any other States shall be subject to taxation, and that all such lands bordering upon navigable rivers within this State should not be subject to taxation. Such a statute would not only be unjust and inequitable, but would also be clearly unconstitutional, null and void as violative of sections 3 and 4 of article 10 of the Constitution of 1875, which provides that “taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax,” and that “all property subject to taxation shall he taxed in proportion to its value.” Kansas City v. Whipple, 136 Mo. 475; City of Brookfield v. Tooey, 141 Mo. 619.]

And in this connection we might state another well-known rule of construction which supports appellants’ interpretation of said section 9387, and that is, that where the language of a statute is dubious or uncertain and is susceptible of two interpretations, one of which upholds its validity and legality and the result of the other would be to declare it unconstitutional and void, the former interpretation which upholds its validity should be placed upon it.

According to all of these canons of construction we must hold that it was the intention of the Legislature to authorize the taxation of all toll bridges in this State, whether they span navigable rivers separating this State from other States or whether they cross navigable rivers within this State.

In oral argument counsel for respondent contended that the bridge in question was in fact a toll bridge within the meaning of section 9387, and that the evidence preserved in the record bore him out in that» contention, and, consequently, insisted that the judgment was for the right party and should not be disturbed. Counsel for appellants, upon the other hand, while conceding a larger sum is charged for carrying-persons from Louisiana, Missouri, to Roodhouse, Illinois, the bridge constituting a portion of the route,. than is charged for carrying them the same number of miles either in Missouri or Illinois, still contends that said charge is not a toll within the meaning of section 9387.

Having reached the conclusion in this and other cases involving the taxes assessed against this bridge, that it is not a separate and independent structure but is an integral part of appellants’ railroad, we must logically hold that said charges are. not tolls within the meaning of that section of the statute, but are illegal extortions exacted from the traveling public. If the bridge is an integral part of the road, as is conceded by counsel for appellants, both in printed and oral arguments, and as we hold it to be, then appellants would have no more legal right to demand and receive an additional fare for carrying passengers across this bridge than they would for carrying them across a trestle or any other bridge along the route of their road. The two propositions are absolutely inconsistent with each other and cannot stand together for the obvious reason that before a person can collect tolls of others for crossing a toll bridge he must first have such a bridge for them to cross upon; and in this case, according to the conceded facts, appellants, within the meaning of the law, have no bridge upon which they could cross, only a roadbed and tracks — nothing more.

We must, therefore, hold that the bridge mentioned was not subject to taxation under said section 9387, and that the taxes sued for in the second and fifth founts of the petition were improperly levied and cannot be collected.

III. The final insistence of counsel for respondent is that if the bridge in question is to be assessed under sections 9338 and 9339, Revised Statutes 1899, according to what is known as the “mileage rule,” and not under section 9387, as contended for by the appellants, then the bridge will be assessed for almost a nominal sum, namely $5,000; while, if assessed under the last section, the assessed value thereof would be $150,000, which would result in great injustice to the respondent and practically exempt the bridge from taxation.

In onr judgment that insistence is not sound, for, in the first place, when the bridge is treated as a part of the roadway, then the entire road is assessed according to the mileage rule, and the total value of the bridge is taken into consideration and constitutes one of the elements which go to malee up the total assessable value of the road, and when the total value is divided by the number of miles the road is in length, the value of the bridge is equally distributed along the entire length of the road; and when the railroad company pays its taxes, each county through which it passes receives its proportional part thereof instead of paying the entire taxes assessed against it to the county in which the bridge is located.

In the second place, if we view the matter from a standpoint of absolute justice and equity, then all non-toll railroad bridges should not be considered at all in fixing the value of railroads for assessment purposes, whatever their size or cost of construction may have been, except in so far as they constitute so many feet or miles of the road to be assessed. Such bridges have no more intrinsic or commercial value than the same number of feet of road constructed by it over a perfectly level prairie country and where the cost of construction was perhaps not more than one-thousandth part as much as was the cost of constructing the bridge. In fact, it is not so valuable as the latter, for several reasons: (1) there is not so much idle money tied up in the latter; (2) the expenses of maintaining the latter are not near so great; (3) the trains can run faster over the latter and much safer than over the former; and (4) the company has no legal right to charge any more for carrying freight and passengers over the bridge than it has for carrying them the same distance over the perfectly level portion of their road. Under the law of this State the cost of constructing and maintaining railroads is not taken into consideration in fixing the tariffs the companies may charge for the transportation of freight and passengers over their lines — that is, no railroad of the same class can lawfully charge higher tariffs than the legal schedule, even though its cost of construction may have been double the cost of the construction of some other road of the same class; and that being true, why should the bridge be assessed at a higher value per foot or mile than any other portion of the road? We are unable to see any sound reasons therefor. That, however, is a matter over which we have no control — it belongs to- the lawmaking power of the State and not to the judiciary.

It must follow from the foregoing rulings that the judgment of the circuit court as to the second and fifth counts of the petition must be reversed. It is so ordered.

All concur.


author: LAMM, J.-

text:
    JAMES M. BURRUS, Appellant, v. JAMES M. COOK et al.
    Division One,
    December 23, 1908.
    1. LIMITATIONS: Raised by Demurrer: Pleading Exception. The Statute of Limitations may be invoked by a demurrer, ■whenever the face of the petition discloses that the bar has become complete; and, if the' cause of action in such case' is such that the bar of the statute may be obviated by some exception in the statute, the facts constituting such exception should be stated in the petition.
    2. -: Cosurety: As Equitable Assignee of Judgment. Where one of the sureties pays the judgment debt ot his principal, his suit as equitable assignee of the judgment against his cosurety to compel contribution is barred in five years after the date he paid the judgment. The limitation does not begin to run on the day the judgment was rendered, but, as to the cosurety who paid the judgment and brings his suit to compel contribution, on the day the judgment was paid. Where the judgment was rendered against the maker and his cosureties in 1886, and was paid by one of the sureties in 1888, his suit against the other cosurety brought in 1903 was barred, whether the judgment (under the twenty-year Statute of Limitations) was barred or not, and whether or not the note that was the basis of the debt was barred. [Disapproving Brewing Co. v. Jordan, 110 Mo. App. 286.]
    3. -: Equity. The Statute of Limitations applies alike to suits in equity and actions at law. Whether the surety who paid the judgment and sues his cosurety to compel contribution, sues as the subrogated equitable assignee of the judgment or as the actual assignee, his action, in either case, is barred in five years after the date of payment.
    4. -: -: Subrogation: Assignment. Equity will not make an assignment where the sole object was to avoid the Statute of Limitations.
    5. -: -: Assignment: Alteration of Right. An actual assignment of a judgment to a surety on the judgment note or debt does not alter the rights of the parties, or give the surety a right of action on the judgment itself or the note itself. The substantive of the right of action — the right which the law raises up to compel by suit the principal or his co-surety to contribute his share of the debt — remains the same. Taking an actual assignment from the creditor, whether of the note or judgment thereon, is no more than what equity gives the cosurety without such assignment. Mere payment operates as an equitable assignment whenever necessary to aid the cosurety in securing the collaterals, liens, priorities, etc., held by the creditor; and by actual assignment he obtains nothing more.
    6. -: -: -: Proof. The surety in his suit to compel contribution cannot make out his case by merely offering the judgment in evidence and proving its assignment. He must show by parol evidence that he was surety, and what sum he paid to the creditor, and that he paid it under conditions that made him liable therefor to such creditor. And the same defenses and the same issues can be made against his right as an actual assignee to recover as could be made had he not taken an assignment. If he has paid more than his share of the debt, he must, with or without an assignment, depend upon his position as surety — both for interest and the amount he is to recover.
    7. LIMITATION: Exception: Fraud: To Defeat Execution. To prevent the Statute of Limitations from beginning to run on account of undiscovered fraud, the fraud must be of such character as prevented the complaining party from bringing the suit. Where the fraud charged in the petition went only to defeat execution on a judgment had one been obtained, it did not prevent the bringing of the action, and therefore did not prevent the running of the statute.
    Transferred from Kansas City Court of -Appeals.
    Affirmed.

      J. Allen Prewitt and Olney Burrus for appellant.
    The demurrer of defendant Cook should not have been sustained. (1) Because the Statute of Limitations cannot be raised by demurrer. Smith & Kinzer v. Dean, 19' Mo. 63; Cooksey v. Railroad, 17 Mo. App. 141; Maddox v. Duncan, 62 Mo-. App. 474; State to use v. Bird, 22 Mo. 473. It does not appear on the face of the petition that the claim is barred in any event and without any exception. Defendants’ absence from the State would create one exception, and until defendant pleads the statute, it is unnecessary for plaintiff to plead the exception. Sec. 4282, R. S. 1899. (2) Defendant Cook directs his plea of the statute to plaintiff’s claim of subrogation. Plaintiff did not ask to be subrogated to any right of defendant Cook, but to the right of the other defendants, and they alone could make such a plea. Alnut v. Leper, 48 Mo. 319; 13 Ency. PL & Pr., 194. (3) If defendant Cook could properly plead the Statute of Limitations by demurrer he must rely on the one pleaded. In no event does the five-year statute apply in this case. R. S. 1889, sec. 6796; Chiles v. School District, 103 Mo. App1. 2401; Harper v. Kemble, 65' Mo. App. 516'. Defendant cannot, as he seems to do, rely on Sec. 4273, R. S. 1899, for two all-sufficient reasons: First, the section expressly exempts judgments from its operation; second, plaintiff’s action is not upon a contract, obligation or liability, expressed or implied, as contemplated by the section. Mankey v. Willoughby, 21 Mo. App. 314;Dysart v. Crow, 170' Mo. 275; Angelí on Limitation (6 Ed.), secs. 26, 30; Campbell v. Campbell (Cal.), 65 Pac. 134. Defendants “demurrer” is founded on an assumption of defendant not pleaded by plaintiff. Defendant cannot, by demurrer, arbitrarily assume that plaintiff’s equitable action is a legal one and then say that it is bad on grounds that apply only to a legal action. The office of a demurrer in an equity case is to reach a determination whether its allegations show proper cause for equitable interference. Fisher' v. Patton, 134 Mo, 51; Williams v. Gerber, 75 Mo. App. 29; Aldrich v. Aldrich, 56 Yt. 324. (4) Although plaintiff has paid the debt, it may be treated in equity as still existing in order to allow him to force contribution from his cosurety, the defendant Cook, or equity may treat plaintiff as the equitable assignee of the judgment and allow him to recover in the name of the original creditor, or substitute him as a plaintiff and allow him to recover on the judgment just as Bowlin could do if plaintiff had not paid it. Price v. Clevenger, 98 Mo. App, 541; Bick v. Tanzy, 80 S. W. 904; Wilkes v. Yaughn, 83 S. W. 913; Dysart v. Crow, 170 ■ Mo. 270; Benne v. Schnecko, 100 Mo. 257; Harper v. Rosenberger, 56 Mo. App. 388; Ferguson’s Admr. v. Carson’s Admr., 86 Mo. 673; Bank v. Kemble, 61 Mo. App, 215.

      Paxton S Rose for respondents.
    (1) The petition showed on its face that plaintiff’s cause of action was barred, and it was proper to raise the bar of the Statute of Limitations by a special demurrer specifying the limitation of five years. Hen-och v. Chaney, 61 Mo, 129’; State ex rel. v. Spencer, 79 Mo. 317. (2) And especially in an equity suit, such as this, where the practice has long been established. 13 Ency. PI. & Pr., 201, 202. (3) Plaintiff paid off the judgment in 1888, and did not bring suit against his cosurety till 1903. It was barred under the limitation of five years. Singleton v. Townsend, 45 Mo. 379. (4) And the claim was barred both at law and in equity. Junker v. Rush, 136' 111. 179; Jobnston v. Belden, 49 Iowa 301; Simpson v. McPbail, 17 111. App. 499; Bauer v. G-ray, 18 Mo. App. 173; Rogers v. Brown, 61 Mo. 187. (5) Tbe fraud alleged, viz: that Cook bad conveyed bis property, did not have any tendency to prevent Burrus from bringing bis suit in time; at most it could only have affected tbe execution, not prevented tbe judgment. Simpson v. McPbail, 17 '111. App. 502; 19 Am. and Eng. Emcy. Law (2 Ed.), 247, 248'.
   LAMM, J.-

Bowlin held a note against Weese, principal, on which Burrus and Cook were cosureties. In a suit against Weese, Cook and Burrus, Bowlin recovered judgment in 1886 in tbe circuit court of Jackson county. Burrus paid in full in June, 1888. In 1903, Burrus as paying-surety sued Cook in equity to recover one-half bis outlay, making tbe beirs of Bowlin parties defendant — bis bill in three counts, viz. :

The" first count was based on tbe theory that Burrus on paying tbe judgment received a written assignment thereof (now lost); that Cook prior to'judgment bad made himself insolvent by a fraudulent transfer of 1601 acres of land in Bates county to bis brother; that Bowlin was dead, Ms estate administered and bis administrator discharged; and that Burrus was entitled to be substituted to all the rights and privileges possessed by -Bowlin, bis beirs and administrators in tbe judgment, and recover on tbe judgment for Cook’s pro rata, be- (Burrus) being wholly without a remedy at law or otherwise.

By tbe second count, tbe same narrations are made except nothing is said about tbe assignment of tbe judgment. In lieu it is alleged that, by paying tbe judgment, Burrus became substituted in conscience to Bowlin’s rights under it, became tbe equitable assignee of said judgment and( as such assignee, is entitied to recover from the non-paying surety his pro rata share.

By the third count the same narrations as in the second are made except that a judgment in the name of the Bowlin heirs and representatives is sought against Cook for the use and benefit of Burrus.

Cook, through counsel, demurred to the bill specially, for that (quoting) “it states facts which show that plaintiff has no cause of action, in this that said petition is in legal effect a suit by Jas. M. Burrus against Jas. M. Cook, his cosurety, for contribution on a debt paid for their principal in 1888, and because more than five years have elapsed since such payment by plaintiff, this suit by him against his cosurety Jas. M. Cook is barred by the Statute of Limitations.”

The demurrer was sustained, nisi, and plaintiff refusing to plead over, judgment went against him. Prom that judgment he appealed to the Kansas City Court of Appeals where two exhaustive opinions were handed down — the principal one by Johnson, J., in which Broaddus, P. J., concurred, reversed the judgment and remanded the case. The other, by Ellison, J., affirmed the judgment. [See Burrus v. Cook, 117 Mo. App. 385.]

By reason of divergence in opinion among the members of that learned court, the cause came here for final determination. Those two opinions were illuminating contributions to the law anent the rights of paying sureties, the essential elements constituting a cause of action in behalf of a paying-surety against a non-paying surety, and the application of the Statute of Limitations to the cause of action, to which nothing need be added. In my judgment the opinion of Ellison, J., is a correct pronouncement of the law (making sufficient statement of the contentions and well disposing of them), and follows:

In dissenting from the view, which my colleagues have taken,” says Judge Ellison, “I have concluded to go over the whole record and state what I conceive to be the law involved in the case; remarking first upon the fact, that notwithstanding the extended examination made by them, they have not cited a case (save the one decided by this court) which involved the Statute of Limitations of the surety’s right to sue, or in which that question was even referred to.
“Plaintiff instituted the action by filing a petition seeking to recover from a cosurety one-half the amount he paid for their principal. The defendant demurred to the petition which was sustained by the court and judgment entered for the defendant, whereupon plaintiff appealed.
“The petition alleges that plaintiff and defendant Cook were sureties on a note given by William Weese to Jacob Bowlin. That Bowlin, on September 20, 1886, obtained judgment on that note against all three parties for $355 with interest. That defendant then and there became legally bound as cosurety with plaintiff for one-half of said judgment. That Weese, the principal, has failed and refused to pay the judgment and has become a non-resident and insolvent. That the defendant, Cook, with the purpose of avoiding the payment of any part of the judgment, prior to the rendition thereof, fraudulently, and without consideration, conveyed all his property to his brother and thereby rendered himself insolvent. That by reason of the insolvency of Weese and defendant Cook, he — plaintiff—was compelled to pay the full amount of the judgment on the 25th of June, 1888, and on that day, Bowlin, the plaintiff in the judgment, assigned the same to Mm. That by virtue of such assignment, plaintiff became subrogated to all the rights of Bowlin in the judgment ,and became the equitable assignee thereof and entitled to recover one-half the amount thereof from defendant Cook. That Bowlin has long since died and administration on his estate has closed, and in consequence, plaintiff cannot revive the judgment. That he cannot maintain an action at law against defendant and that he has at no time had an adequate remedy at law. Wherefore, plaintiff asked that he be substituted as a party plaintiff in said judgment and that it be credited with a payment of one-half thereof, and that he have judgment against defendant Cook for the remaining one-half. There were two other counts in the petition, but what we have stated is sufficient to base conclusions which will dispose of the case.
“I. The ground of demurrer is that the petition shows upon its face that the claim or cause of action is barred by the Statute of Limitations. It is first contended by plaintiff that the Statute of Limitations cannot be invoked by means of a demurrer. We, however, are satisfied that the benefit of the statute may be had in that way. Whenever, as in this case, the face of the petition discloses that the bar has become complete, a demurrer stating that as the ground is proper. [Henoch v. Chaney, 61 Mo. 129; State to use v. Bird, 22 Mo. 470; State ex rel. v. Spencer, 79 Mo. 314.] And, if the cause of action is such that it may be obviated by some exception in the statute, the facts stated in the petition should show such exception. In other words, the exception relieving plaintiff from the statute should be pleaded by him. [Humbert v. Trinity Church, 7 Paige 195.]
“It will be noticed that in the cases cited, State to use v. Bird, and State ex rel. v. Spencer, the expression is used that a demurrer may be adopted as a mode of invoking the Statute of Limitations where the statute creates an absolute bar, ‘without any exceptions.’ As our statute has many exceptions to its application, the plaintiff relies on these cases. The expression was perhaps inadvertently used. The authority cited in the first of the cases is Humbert v. Trinity Church, 7 Paige Ch. 195, where the language of Chancellor "Walworth is exactly to the contrary. He says that, ‘if the case is within any of the exceptions of the statute the complainant must state the fact in his hill. ’ And that is stated to he the rule by Justice Washington in Wisner v. Barnet, 4 Wash. (C. C.) 639. We do not find that such qualification of the rule is made in any other cases than the two above noted. It is not made in Boyce v. Christy, 47 Mo. 70, nor in Henoch v. Chaney, supra; and we are relieved of any embarrassment from the expression by the later case of Heffernan v. Howell, 90 Mo. 344, where a demurrer was held properly sustained for the reason that the petition disclosed that the action was barred, ‘no reason or excuse whatever being* alleged in the petition why the action was not commenced within the time prescribed by the statute for bringing the suit.’
“II. It appears by the petition that plaintiff as cosurety with defendant paid the judgment in 1888, while the suit was not brought until 1903.
“The question presented is, when did the period of limitation begin to run against plaintiff; at the date of his payment of the judgment, for one-half of which he asks to recover; or at the date of the rendition of the judgment? (or, stated in a different way, is a surety, who has failed to assert his right to the judgment, entitled to the full period of limitation for suit on the judgment?) If the former, the period of limitation would be five years, and the action is therefore barred. If the latter, the period of limitation would he twenty years (as the statute then read), and the action would therefore not be barred. The question, as it relates to a principal and his surety, was presented to this court in Brewing Co. v. Jordan, 110 Mo. App. 286. That case was where a surety paid the principal’s note, and more than five years afterwards, but within the ten-year limitation period for notes, brought his action in equity against the maker. He claimed that Ms payment operated as an equitable assignment of the note itself from the payee, and that his right of action was not barred until the note was barred. That claim was sustained by tliis court. I am now satisfied that it ought not to have been. I think it contrary to the view of the Supreme Court of the State. The period of limitation of an action, whether against the principal or cosurety, begins to run from the day of the surety’s payment (in case against cosurety, of more than his share), for on that day a cause of action accrues to him. This is expressly decided in Singleton v. Townsend, 45 Mo. 379; Burton v. Rutherford, 49 Mo. 255; Bushong v. Taylor, 82 Mo. 660, 671. And so it seems to have been decided in every other State where the question has been presented. [Junker v. Rush, 136 Ill. 179; Thayer v. Daniels, 110 Mass. 345; Harrah v. Jacobs, 75 Iowa 72; Johnston v. Belden, 49 Iowa 301; Faires v. Cockerell, 88 Texas 428; Hammond v. Myers, 30 Tex. 375; Darrow v. Summerhill, 93 Tex. 92, 105; Arbogast v. Hays, 98 Ind. 26; Joyce v. Joyce, 1 Bush 474; Scott v. Nichols, 27 Miss. 94; Loewenthal v. Coonan, 135 Cal. 381; Ryland v. Bank, 127 Cal. 525; Reeves v. Pulliam, 7 Baxter 119; Barnsback v. Reiner, 8 Minn. 59; Poe v. Dixon, 60 Ohio St. 124; Knotts v. Butler, 10 Rich. Eq. 143; Pickering v. Leiberman, 41 Fed. 376; Martin v. Frantz, 127 Pa. St. 389.]
“The same view is held by the English courts. [Davies v. Humphreys, 6 M. & W. 153; Ex parte Snowdon, L. R. 17 Ch. D. 44.]
“And the same is stated by text-writers. [Wood on Limitations, sec. 145 ; Angell on Limitations, sec. 131; Brandt on Suretyship, sec. 339; 1 Parsons on Contracts, 36 (bottom p.); 3 ib. 98; 2 Chitty on Contracts, 1231.]
“But it is said that the decisions in this State on that subject were in actions at law and that, therefore, they are not applicable to the present, or the Brewing Company’s case, which are equity cases for subrog'ation. Some of the decisions were in law cases, but others were not. Thus, Bushong v. Taylor was in equity. At page 662 of the report, the brief for defendant shows that,the action was on an implied liability to which the five-year period of limitation applied. At page 665', opposing counsel for plaintiff tacitly conceded this, but asserted that the statute did not begin to run until he paid the debt; and this view was sustained by the court at page 671. Several of the foregoing cases cited from other States were also actions in equity.
“But, if all those cases had been actions at law, they would be of equal controlling authority in this case in equity. For the rule is well understood that equity follows the law and applies the same period of limitation. [Rogers v. Brown, 61 Mo. 187; Bauer v. Gray, 18 Mo. App. 164; Darrow v. Summerhill, 93 Tex. 105; Junker v. Rush, 136 Ill. 179.]
“It is conceded that, in cases of this nature, courts of equity and of law have concurrent jurisdiction. What may be termed the 'right to the action and its ultimate object are the same, and the foundation of the action, as well as the amount of recovery, whether asserted at law or in equity, are the same. It is universally held that in all cases of concurrent jurisdiction, equity ‘will no more disregard the statute than a court of law.’ [Wood on Lim. (3 Ed.), sec. 58; 19 Am. and Eng. Ency. Law (2 Ed.), 155.] ‘Statutes of limitation, . . . when they are addressed to courts of equity as well as courts of law, as they seem to be in controversies of concurrent jurisdiction, are equally obligatory in both forums as a means of promoting1 uniformity of decision.’ [Godden v. Kimmell, 99 U. S. 201; Murray v. Coster, 20 Johns. 585; M’Crea v. Purmort, 16 Wend. 460, 476; 2 Story, Eq. Jur., sec. 1520; 1 Pomeroy, Eq. Jur., sec. 419.] So it is said that the doctrine of substitution ‘will not be enforced at the expense of a legal right.’ [Rittenhouse v. Levering, 6 Watts & Serg. 198-200.]
“In Brewing Co. v. Jordan, we treated the question as having been frequently decided by the Supreme Court of this State and cited a number of cases, which I now conclude are not at all in point. In neither of them was there any question of limitations; nor was any reference made to such question in any way. But they were thought to have a bearing on the question because of expressions as to the right of a surety to be subrogated to the rights of the principal. These expressions state the well-recognized general principle of law as well as equity, that, so far as necessary to protect the rights of the surety, a payment of the debt does not extinguish it. That, ‘it should still subsist with its liens and priorities to enable him to recover of the principal as well as to compel contribution by cosureties, or to avail himself of any securities or collaterals turned out by the principal,’ and to that end, the surety could be considered in equity as having an assignment of the debt. [Berthold v. Berthold, 46 Mo. 557.] ‘No principle is better settled than when a surety pays the debt of his principal, he by reason thereof, becomes entitled in equity to all of the rights, remedies, securities, funds, liens and equities which the creditor may have for the same debt.’ [Storts v. George, 150 Mo. 1; George v. Somerville, 153 Mo. 16.] ‘Mere payment of the debt by the surety is considered to operate as an assignment of it to the party paying with all the rights and liens which attached to it as incidents in the hands of the creditors.’ [Benne v. Schnecko, 100 Mo. 250.]
“In thus asserting what the rights of a surety are, the Supreme Court did not say when, nor within what time, the surety should assert those rights. The statute itself has done that. The general law of the surety’s right on payment of his principal’s debt, or more than his share as between him and his cosurety, was well recognized when the statute limiting the time when such rights should he asserted was enactéd; so that, the general law and the statute taken together amount to this: that a surety, upon payment of the debt, has a right to the instrument upon which he is surety, with all the rights, securities, and liens, which attach to it, but he must assert those rights within five years after such payment. ‘"Where a surety who has paid the debt does not act before his claim is barred at law by the Statute of Limitations, manifesting his intention to put himself in the. place of the original creditor, and thereby .subrogating himself to the creditor’s rights, equity will not subrogate him to those rights.’ [1 Brandt on Suretyship (3 Ed.), "sec. 339.] Before a right to subrogation accrues to a surety, he must have paid the debt (in case of cosurety, more than his portion of debt) and it must have been a valid debt at the time of his payment. Furthermore, as stated by Judge Story, other issues ‘of a very complicated nature may arise, from counter equities between some or all of the parties, resulting from contract, or from equities between themselves, o» from peculiar transactions regarding third persons, . . . or from the very nature of the transaction [there may be], an exemption of one surety from becoming liable to contribution in favor of another.’ The learned author then proceeds to set out several apt illustrations of his statement. [1 Story’s Eq. Jur. (13 Ed.), sec. 498.] These various issues of fact may be the subject of sharp dispute and their solution will greatly depend upon oral testimony and the life and memory of witnesses. He should be required to establish his right within the period of its own limitation and not the period of the limitation of the original indebtedness, or of a judgment rendered thereon, for those periods might cover a great length of time; in this case, it is said, the space of twenty years. "When he has thus established his right, while memory is less treacherous and witnesses are yet alive, then he becomes entitled to the period of limitation of the instrument itself.
“So it is held that a surety, on payment of the debt, does not become ipso facto subrogated to the rights of the creditors, but only acquires a right to such subrogation (Hull v. Sherwood, 59 Mo. 172), which he must assert before his legal, remedy is barred. [Junker v. Rush, 136 Ill. 179; Johnston v. Belden, 49 Iowa 301; Rittenhouse v. Levering, 6 Watts & Serg. 190; Joyce v. Joyce, 1 Bush 474.] And so Judge Thompson states the law in Bauer v. Cray, 18 Mo. App. 170. So it is said hy Judge Napton that ‘the right of a security to recover from his principal the amount which he has paid in his behalf, is a right which may be established in a court of law; but his right to stand in the place of the creditor, as to all securities, funds, liens, and equities which he may have, is a right which can only he established in a court of equity.’ [Miller v. Woodward, 8 Mo. 169, 175.]
“In undertaking to defend the position that subrogation of a surety operates to place him literally in the creditor’s shoes, with all the rights of the creditor, and to make him literally the owner of the creditor’s claim (a note for instance) as though he were an ordinary assignee, and therefore entitled to' the period of limitation prescribed for a note, one is led into the most unreasonable, illogical and inconsistent positions. Thus a creditor has the right, of course, to recover the full amount of the note, but the surety is not permitted ‘to speculate off of his principal’ nor his cosurety and can recover no more than he has been compelled to pay for him. As, if the surety, should compromise or otherwise adjust the note at less than its face, he can recover no more than he pays. [Hearne v. Keath, 63 Mo. 84, 89; 1 Brandt on Suretyship, sec. 233; Stone v. Hammell, 83 Cal. 547; 27 Am. and Eng. Ency. Law, 480; Sinclair v. Redington, 56 N. H. 146; Tarr v. Ravenscroft, 12 Gratt. 642.]
“So the indebtedness, for which he is surety, may draw the highest contractual rate of interest permitted by law and yet the surety (in absence of a statute) will only recover the legal rate of the sum he pays from the time of payment. [Bushnell v. Bushnell, 77 Wis. 435; Smith v. Mason, 44 Neb. 610, 621.]
“The fact is the surety, in some instances, has ’longer time than the creditor, and in some, shorter. Thus, if he should pay a part of a note, upon which he was surety, the day before it was barred by the statute, he would yet have five years in which to bring his action, for his cause of action can only arise when he makes payment (Singleton v. Townsend, 45 Mo. 380), though the creditor would be barred in one day for the balance. On the other hand, he may make such payment the day it became due, and the creditor might have ten years in which to sue for the balance, while the surety would only have five in which to bring his action. These, of course, are only illustrations, but they serve to show that the rights of the creditor and the rights of the surety have distinct periods of limitation.
“It may be illustrated further; suppose the surety makes partial payments at different times on the indebtedness represented by a note. The period of limitation would necessarily begin to run on each payment at the time it was made (in cases of cosurety at the time the payment was in excess of his share), and thus, on the theory that the surety owns the note, or stands in creditor’s shoes, there would be several distinct periods of limitation on the same note. This and other illustrations are stated in Faires v. Cockerell, 88 Tex. 428; Angell on Lim., sec. 132.
“In an extended examination, I have not been able to find an authority against the position herein expressed save that of Sublett v. McKinney, 19 Tex. 439, and Hull v. Myers, 90 Ga. 674. The former was overruled in Faires v. Cockerell and Darrow v. Summerhill, supra; and the latter, besides being .based on Sublett v. McKinney, was mere obiter dictum, since the action brought, as announced by the court, was not such as to permit an application of the creditor’s period of limitation; on the contrary, was on the implied promise of the principal debtor, and therefore held to be barred. So, in consequence, all rémarks of the court on the other branch were not on the point in judgment. In this connection, there are- two cases, one in Ohio (Neal v. Nash, 23 Ohio St. 483), and the other in Wisconsin (Bushnell v. Bushnell, 77 Wis. 435), to which it may be well to call attention. In the former State, there is a statute prescribing a ten-year period of limitation for all actions in equity and so the court applied, not the creditor’s limitation, but this statutory limit to that action, it being in equity. So in the latter State, there is a like statute, and the court said that it would not decide whether such statute would have application to an equitable action for subrogation, since the action before the court was at law on the implied promise.
“When the question is looked at from the standpoint of the surety’s right of action, it is quite a plain one. His right of action, as a matter of course, is the foundation upon which he must recover. His right to subrogation is merely an aid to his right of action. His right of action is not based on an actual contract or promise of the principal debtor, or his cosurety, for none has been made. It is based on an implied promise, which the law raises up from principles of natural justice and right, that is, a promise which the law implies has been made to him when he became surety that he, the principal, will reimburse him for what he may have to pay, or, in case of a cosurety, for what he pays over his proportion, by reason of his suretyship. His right to subrogation is only one of the means of obtaining reimbursement. It is an incident to his main right. Without such obligation, there would not, of course, be a right to subrogation. So when the obligation is no- longer effective, the right to subrogation is destroyed. The statute reads that it shall not be an effective obligation unless asserted within five years. And this is true whether the right of the surety arises from an implied contract, or from natural justice and equity.
“That the surety, upon payment of the indebtedness, may, when necessary to his reimbursement, become, in equity, the assignee of the note or judgment evidencing suich indebtedness, is everywhere recognized in this country. In many instances, it may serve him a highly effective purpose to be considered the assignee of the creditor’s instrument itself, upon which he stands as surety. Such instrument may evidence an indebtedness, which is preferred over other creditors, as are many claims which must be presented to assignees, administrators, and the like. It may represent priority of liens in many instances. In some States, taking sureties on a note for purchase money of land does not waive the vendor’s lien, and in such cases it would be of great value to the surety to be considered the assignee of such a note with its right to a lien. And so a surety may have paid a note representing the purchase money for a homestead. Or he may have discharged obligations, which were superior to dower. In these and doubtless many other instances, the surety would have a right to use the instrument itself so as to avail himself of the lien. [Carey v. Boyle, 53 Wis. 574; Markillie v. Allen, 120 Mich. 360; State ex rel. v. Atkins, 53 Ark. 303; Gilbert v. Neely, 35 Ark. 24.] But equity will not make an assignment, where the sole object is to avoid the Statute of Limitations, as was the purpose in Brewing Co. v. Jordan, and in this case.
11 III. The petition alleges, and we must therefore accept it as a fact, that this plaintiff took an assignment of the judgment when he paid it. But that can make no difference in the limitation period. [Johnston v. Belden, 49 Iowa 301; Harrah v. Jacobs, 75 Iowa 72.] The St. Louis Court of Appeals has decided that an assignment of a note to the surety did not alter the rights of the parties, nor give him a cause of action on the note itself. [Williams v. Gerber, 75 Mo. App. 18, 30.] The substantive, which give a ' surety a cause of action against his principal or his co-surety, remains the same. Some courts state that the surety’s right of action is based on an implied promise which is raised up by the law against the principal when the surety enters into his obligation, that the principal will reimburse him if he should be compelled to pay the- debt; and against the cosurety that he will reimburse the surety for whatever he pays more than his share of the debt. Other courts state that such rights of action are not referable to a contract, but that the- law raises them up from principles of natural equity and justice. But whichever mode of expression is used, it is an operation of law and the same statute of limitation applies. Whether we say that the surety’s right of action arises from an implied promise, or from natural justice, his cause of action is the same, that is, it is for reimbursement for money which he has paid out for another. That cause of action must be proved in the same way when an assignment has been made to the surety of the evidence of indebtedness (such as a note or judgment) as it would be if there had been no assignment. The surety cannot make out his case by merely offering the note or judgment in evidence and proving the assignment. The note or judgment being against him, such proof alone would show that they were discharged and extinguished by his payment of them. He is confronted with the extraordinary situation of a debtor taking an assignment of a claim against himself. Pie, therefore, must explain by parol evidence the peculiar relation that he bore to the transaction in order to prevent the usual application of the law that a payment by a debtor extinguishes the obligation. To sustain himself, he must necessarily depend upon extraneous matter. That is, he must show that he was a surety, and that sum he paid to the creditor and that he paid it under conditions which rendered him liable therefor to such creditor. And so the same defenses and the same issues can be made against his right to recover as if he had not taken an assignment. In other words, talcing an actual assignment from the creditor is no more than what equity gave him without such assignment; for we have already seen that his mere payment operates as an equitable assignment whenever necessary to aid him in securing the collaterals, liens, priorities, etc., held by the creditor. By taking an actual assignment, the surety manifestly does not acquire any additional right. He is compelled to depend upon his position as surety, else, as already stated, the assignment itself would be a discharge of the obligation, since it is an assignment to the debtor. He still, notwithstanding the assignment, cannot recover the face of the obligation, but only what he has paid; nor can he recover the rate of interest named in the obligation, but only legal interest from the date of his payment ; and it must be shown, if the issue is made, that he paid the debt under such conditions as entitled him to reimbursement. It seems then to be clear that the debtor surety cannot have a cause of action as such, on the obligation upon which he stands as surety, but that his cause of action depends wholly upon matters aliunde, and that therefore the period of limitation for the original obligation is not the period which limits his right as surety.
“IV. Plaintiff, however, sets up fraud on the part of Cook in avoidance of the statute. A part of our Statute of Limitations (see. 4290, R. S, 1899), provides that if a party by improper conduct prevents the commencement of an action, it may be begun within the proper period of limitation after the commencement of the action shall have ceased to be so prevented. But the fraud charged in the petition did not prevent the beginning of an action. It only went to defeat an execution on a judgment which might be obtained in such action. The statute has no application to such case. The fraud must be of such character as prevented the complaining party from bringing the suit. [19 Am. and Eng. Ency. Law (2 Ed.), 247.] It is not material to inquire (as plaintiff wishes done in this case) whether a suit would have resulted in collecting the debt. [Simpson v. McPhail, 17 Ill. App, 502.] I must therefore conclude with the trial court that plaintiff’s action is barred and that the demurrer to the petition was properly sustained.
“Deeming the decision rendered by the majority to be contrary to the following previous decisions of the Supreme Court: Singleton v. Townsend, 45 Mo. 379; Burton v. Rutherford, 49 Mo. 255; and Bushong v. Taylor, 82 Mo. 671; and the following previous decisions of the St. Louis Court of Appeals: Bauer v. Gray, 18 Mo. App. 164, and Williams v. Gerber, 75 Mo. App. 18, the cause should be certified to the Supreme Court.”

On the reasoning of the foregoing opinion, the judgment of the circuit court of Jackson county is affirmed. It is so ordered. All concur, but in concurring my brethren are of opinion that the bill does not state facts sufficient to make the case one of equitable cognizance. That as it stands, the case is an action at law. On that proposition I say nothing.


author: YALLIANT, P. J.

text:
    F. W. KNAPHEIDE, Appellant, v. JACKSON COUNTY.
    Division One,
    December 23, 1908.
    1. CONDEMNATION: Opinion Evidence: Amount of Damage. ■Witnesses well acquainted with the land to be taken for a public road and the lands in the vicinity are competent to give their opinion as' to whether the farm from which the road is taken has been damaged or benefited by the establishment of the public use, and if either how much. Although the rule making competent.their testimony allows them to answer the very question the jury is to answer by its verdict, it is a rule of such practical common sense and is so helpful in the administration of justice in proceedings where the right of eminent domain is exercised that courts have been constrained to adopt it.
    2. -: Instructions: Peculiar Benefit. It is not error to instruct the jury that in considering the landowner’s damages caused by the establishment of the public road they will consider the damages and benefits peculiar to his property and . not those common to all property in the vicinity.
    Appeal from Jackson Circuit Court. — Hon. J. H. Blover, Judge.
    Affirmed.

      L. T. Dryden for appellant.
    (1) It was error to permit defendant’s witnesses to give their opinion as to whether appellant Knapheide was damaged or benefited and the amount of damages or benefits. This was a question for the jury. Gregory v. Chambers, 78 Mo. 294; Hurt v. Railroad, 94 Mo. 255; Railroad v. Stock Yards Co., 120 Mo. 541; Wiggins v. Railroad, 119 Mo. App. 492. (2) In the trial defendant sought to justify this character of testimony upon the ground that appellant had offered testimony of that character. The record does not justify this statement of fact, hut if appellant had asked questions of this character and they had heen answered without objection, that would not justify the admission of similar evidence on the part of the defendant when properly objected to by appellant. McFadin v. Catron, 120 Mo. 252; Charles v. Eailroad, 58 Mo. 458; Eedman v. Piersol, 39 Mo. App. 173. (3) The court erred in refusing to give instruction 2 at the instance of appellant. Newby v. Platte Co., 25 Mo, 258; Eoad Co. v. Pickett, 25 Mo. 535; Eailroad v. Crystal, 25 Mo. 544; Eailroad v. Richardson, 45 Mo. 466; Lee v. Railroad, 53 Mo. 178; Railroad v. Ridge, 57 Mo. 600; Hosher v. Railroad, 60 Mo. 303; Railroad v. Waldo, 70 Mo. 629; Kansas City v. Morton, 117 Mo. 446 ; Hickman v. Kansas City, 120 Mo. 110.

      Charles W. German and W. S. Flournoy for respondent.
    (1) No error was committed in allowing defendant’s witnesses to give their opinions as to the value of appellant’s land or as to the amount of benefits or damages to him on account of the opening of the road in question. In the first place, the objections of appellant are not sufficient upon which to base an assignment of error on this ground. A reference to the objections as they appear in appellant’s abstract of the record will disclose the fact that the objections are too general to avail appellant. In the second place, the parties testifying are shown by the evidence to have been familiar with the value of appellant’s land, and the benefit or damage to it, and hence the questions were proper. Thomas v. Mallinckrodt, 43 Mo. 58; Tate v. Railroad, 64 Mo. 153; Railroad v. Calkins, 90 Mo. 541; Railroad v. DeLissa, 103 Mo. 125; Railroad v. Stock Yards, 120 Mo. 541;' Railroad v. Norcross, 137 Mo. 415; Railroad v. Brick Co., 198 Mo. 698 ; 3 Wigmore on Evidence, secs. 1940'-1944. (2) No error was committed either in refusing to give instruction 2 as asked by appellant, or in modifying the same as given by tbe court. We do not understand upon what theory appellant is complaining of the action of the court under these circumstances. His argument does not enlighten us because he makes no argument on that proposition.
   YALLIANT, P. J.

This appeal is from a judgment of the circuit court of Jackson county in a proceeding that originated in the county court, the purpose of which was to open a public road.

A part of appellant’s land was taken for the road, but the .commissioners assessed no damages in his favor; exceptions were filed by appellant, and a trial by jury in the county court resulted in a verdict of no damages; on appeal to the circuit court and trial there by jury the verdict was also no damages. Then the appeal was taken to this court.

Appellant makes only two assignments of error, the admission of certain testimony, and the refusal to give an instruction as asked but giving it modified by the court. The sole questions tried were, what was the value of appellant’s land that was taken, was the rest of his land damaged or benefited by the establishment of the road, and the extent of the damage or benefit1

Appellant owns about 278 acres; the road runs along one side of it, taking one and three-hundredths acres. There were a good many witnesses called and the testimony is full on all the questions. Their testimony included a description of the land of appellant, its topography, shape and character, and of the land adjoining and the location of the proposed road, and its utility in view of an old road that already existed. All the rest was opinion evidence as to the value of the land, cost of fencing, whether the proposed road would damage or benefit the land of appellant. Appellant himself testified that his land was worth $100 an acre and to cut off a strip for the road was worth $125 an acre, that the road was no benefit to his property whatever, that in his opinion he was damaged $250, which sum he made up by estimating the land taken at $125 and the building and maintaining fences at $125. The witnesses on his side were of the opinion that his land was worth $90' to $100 an acre, and it would cost $60 to $75 to build the fences, and that the proposed road would be a damage and no benefit to his land. Respondent’s witnesses gave their opinions that the land of appellant was worth $80 to $85 an acre, and the fence would cost $40 to $50', and that the proposed road would be a peculiar benefit to appellant’s land, amounting to more than the value of the land taken and the cost of the fence. All the opinion witnesses on both sides were well acquainted with appellant’s land and the vicinity and were competent to testify.

At the request of the appellant the court gave the jury the following instruction:

‘‘1. The court instructs the jury that you should not deduct from the damages, if you believe any has been shown resulting to the Exceptor, F. W. Knapheide, by reason of the establishment and opening of the proposed road, any benefits, if any, except such as are peculiar to said Exceptor’s tract, that is to say, benefits peculiar to the tract itself, and not shared in common by it and other lands in the same neighborhood, and you should not take into consideration any benefits, if any, which might result to the Exceptor, F. W. Knapheide, by reason of the establishment and opening of the proposed road, that is shared in common by other persons along the proposed route, but only special advantages resulting to said Exceptor.”

And appellant asked the following instruction:

“2. The court instructs the jury that private property cannot be taken or damaged for the public use without just compensation to the owner; and if you find from the evidence that the property of F. W. Knapheide has been taken for a public road, and further find that he has not been compensated for the same, and that the benefits peculiar to his property alone, if any, will not exceed the damages, then your verdict shall be for said Knapheide for such a sum as will compensate him for the damages sustained not exceeding in all the sum of two hundred and fifty dollars.”

The court refused the instruction in that form but added after the words “and that the benefits peculiar to his property alone, if any,” the words “as defined in instruction 1,” and gave it as so modified.

Appellant now claims that it was wrong to receive over his objection the opinion evidence of respondent’s witnesses and wrong to have modified the instruction. There was no specific objection that respondent’s witnesses were not shown to he sufficiently acquainted with the situation to entitle them to express an opinion, and if there had been such objection it would have been overruled, because they were all shown to be competent in that respect. In fact it hardly appears on what ground the objection was made, it was general in its character. Besides the evidence was exactly of the same character that appellant had used in his effort to establish his right to damages.

But the testimony was entirely competent, it was in line with previous rulings of this court. [Tate v. Railroad, 64 Mo. 149; Railroad v. Calkins, 90 Mo. 541; Railroad v. DeLissa, 103 Mo. 125; Railroad v. Brick Co., 198 Mo. 698.] The rule of evidence which allows a qualified witness to give his opinion as to whether property has been damaged or benefited and if either how much, has sometimes been questioned on the ground that it allows the witness to answer the very question the jury is to answer by its verdict. But it is a rule of such practical common sense and is so helpful in the administration of justice in proceedings where the right of eminent domain is exercised that courts have been constrained to adopt it. On this point see 3 Wigmore on Evidence, section 1921 and section 1942, where the subject is at length and learnedly discussed.

As to the modification of the instruction, counsel for appellant have not in their brief pointed out what there is in it that is objectionable and we have not been able to discover on what ground the assignment of error is founded. ,

We find no error in the record. The judgment is affirmed.

All concur.