author: GOODIE, J.

text:
    STATE ex rel. WILLIAM STINGER v. CHANCEY J. KRUGER, Judge of St. Louis Court of Criminal Correction.
    In Banc,
    December 22, 1919.
    1. FORFEITURE: Oppression in Office: Jurisdiction of Court of Criminal Correction. The statute giving the Court of Criminal Correction of the City of St. Louis “exclusive jurisdiction of all misdemeanors . . . the punishment whereof is by fine or imprisonment in the county jail or both, or by any forfeiture,” gives to said court jurisdiction to try a police officer charged with oppression in office, and to punish him by forfeiture of his office, in addition to fine or imprisonment. The words “or by any forfeiture” cannot be held to apply simply to forfeiture of money, but confer jurisdiction to try a-misdemeanor punishable by any kind of forfeiture.
    2. -:--: Misdemeanor. Oppression in office, though punishable by forfeiture of office, is a misdemeanor, made so by statute (Sec. 1483, R. S. 1879), declaring that every person guilty of wilful and malicious oppression in his official capacity shall be guilty of a misdemeanor; and since another statute gives the Court of Criminal Correction of the City of St. Louis jurisdiction to try, misdemeanors, that court has power to try a police officer charged with oppression in office, although the -statute fixes, as the punishment for such offense, forfeiture of office, in addition to fine or imprisonment in jail.
    3. -: -: Special Classification of Offenses: By Punishment Prescribed. If an offense is classified as a felony or as a misdemeanor by the statute which. creates it, its character as the one or the otlier is determined thereby, regardless of the punishment prescribed. Even though by the common law definition, or by one given. in a statute declaring generally what elements are required to constitute a felony and what a misdemeanor, it is differently classified, the offense nevertheless falls within the class by which -it is designated in the statute creating it. Since oppression in office is classified as a misdemeanor, it is not to be held a felony because the punishment prescribed is forfeiture of office, in addition to fine and jail sentence.
    4. -: -: Misdemeanor: Infamous Crime:, Constitutional Limitation. Oppression in office is by statute an “infamous crime." The constitutional provision empowering the Legislature to enact laws “excluding from the right of voting all persons convicted of felony or other infamous crime, or misdemeanors connected with the right of suffrage,” did not prohibit the Legislature from classifying infamous crimes disconnected from suffrage as felonies or misdemeanors.
    5. -: -: Punishment. Forfeiture of office is not the only punishment prescribed by the statutes for oppression and official misconduct; ifi addition, the culprit may be punished by fine and imprisonment in jail. The words of the statute (Sec. 4416, R. S. 1909) declaring that every officer convicted of said offense, “where no special provision is made for the punishment,” shall be punished by fine of five hundred dollars or imprisonment in county jail for one year, mean where no fine or imprisonment is provided for, and do not exclude from the operation of the section an official misdemeanor merely because forfeiture of office attends it, but make possible the imposition of a fine or imprisonment provided by other sections, in addition to forfeiture.
    6. -: -: -: Disqualification to Vote. Deprivation of the right to vote or hold office is not such punishment as, under the statute, determines the grade of the crime or the jurisdiction of the court.
    7. -: ■ — ——: • — ■—^—: By Fine or Forfeiture. A statute which gives a court jurisdiction of all misdemeanors “the punishment whereof is by fine or imprisonment in the county jail or both, or by any forfeiture,” gives the court jurisdiction of a misdemeanor the punishment whereof is by fine or imprisonment in jail or both tmd by forfeiture of office.
    8. -: -: -: -: The Words “Or” and “And:” Interchangeable. The word “or” used in a statute will be construed to mean “and” in determining the jurisdiction of the court, where a contrary construction would be to defeat the obvious intention of the Legislature.
    Prohibition.
    Writ denied.

      Campbell Allison for relator.
    (1) The St. Louis Court of Criminal Correction is not only a court of limited jurisdiction, but its jurisdicton is more limited than is that of the justice of the peace. It is given jurisdiction only of certain misdemeanors that are punished in certain ways. Sec. 13, p. 2544, R. S. .1889; Ex parte O’Brien, 127 Mo. 447; Ex rel. Murphy, 132 Mo. 382; State v. Anderson, 191'Mo. 134. (2) The word “or,” when used in a penal statute, denotes an alternative. The context shows that it was not used or intended to be construed as meaning “and.”State v. St. Louis, 174 Mo. 145; Germania v. State, 7 Md. 1; State v. Waiter, 97 N. C. 489; State v. Fairbanks, 115 La. 457; State v. Kearney, 8 N. C. 53’; State v. McDonald, 4 Port. (Ala.) 449; State v. Nichols, 2 Muro (Del.) 448; Addison v. Ins. Co., 144 Mass. 591; Buck v. Danzenbacker, 37 N. J. L. (8 Yroom) 359. (3) The punishment of oppression in office, as provided by Section 4411, takes it completely out of the class of misdemeanors over which, the Court of Criminal Correction is given jurisdiction. Secs. 4411, 4413, 4416, 4925, 4924, R. S. 1909. (4) The word “forfeiture,” as used in penal statutes and in criminal law, is always equivalent to fine or penalty. As it is used in the expression fine, penalty and forfeiture. Sec. 4919, R. S. 1909; Sec. 11, p. 2153, R. S. 1889; Ex parte Anderson, 39 Mo. App'. 103; Cooley on Constitutional Limitations (6 Ed.), 752; Blair v. Ridgway, 41 Mo. 63; Chamberlain v. Wood, 88 N. W. 109; State v. Slade, 46 Tenn. (6 JGlould) 233; 15 Cyc.°280'. (5) An office is apart of the sovereign function of government delegated to an individual to be. executed by him for the benefit of the people. Barnhill v. Thompson, 122 N. C. 493; State v. Hocker, 29 Fla. 477; Montgomery v. State, 197 Ala. 372; Patton v. Board of Health, 127 Cal. 388; Lindsay v. Atty. Geni., 33 Miss. 520. (6) An office is not property, neither is the right of office a property] right. Primm v. City of Carondelet, 23 Mo. 22; State ex rel. Brown, 44 Mo. 129; State ex rel. Yalli, 44 Mo. 36; Mead v. Curators, 47 Mo. 131; Westburg v. City of Kansas, 64 Mo. 503 ; State v. Shephard, 192 Mo. 509.

      Howard Sidener for respondent.
    (1) Conviction of oppression in office carries with it disqualification to hold office, loss of suffrage, and forfeiture of office. It requires no action on the part of the trial judge, or jury to attach the disabilities. They follow as a legal result of conviction. Secs. 4413, 4631, 4924, R. S. 1909; Barnett v. Pemiscott C'o., Ill Mo. App. 693; Higgins v. Tally, 15)7 Mo. 280; Anderson v. State, 72 Ala. 187; State ex rel. v. Buckman, 18 Fla. 267; State v. Grant, 79'Mo. 113. (2) The word “and” will be substituted for the word “or,” in a statute, to carry out the intention of the Legislature. Thomas v. Grand Junction, 13 Col. App. 83; Pollock v. Laura, 5 Fed. 133-135; State v. Lentz, 146 Pac. 932; 2 Sutherland on Statutory Construction (2d Ed.), par. 307; Endlioh on the Interpretation of Statutes, par. 303. (3) The St. Louis- Court of Criminal Correction has jurisdiction over the crime of oppression in office, and has the power to try the case of State of Missouri v. William Stinger. State v. Lawrence, 45 Mo. 492.

      G. Orrick Bishop, Amici Curies; B. H. Charles of counsel.
    (1) The St. Louis Court of Criminal Correction is an inferior court, and there is no intendment in favor of its jurisdiction. State v. Anderson, 191 Mo. 134, 139; State ex rel. v. Murphy, 132 Mr. 382; Ex parte O’Brien, 127 Mo. 477, 487. While nominally a court of record, its real jurisdiction is hut that of a justice of the peace. Cases supra. The jurisdiction is a prescribed and restricted one, and measured in terms of punishment. Laws 1869, p. 196, sec. 13-. (2) The punishment for oppression in office is by fine or imprisonment or both and also disqualification to vote, and also disqualification to hold office, and also forfeiture of office. R. S. 1909, secs. 4411, 4413, 4416. (3) The statute confers no jurisdiction of a crime whereof the punishment is, among- other things, a disqualification to hold office. The statute confers no _ jurisdiction of a crime whereof the punishment is, among other things, a deprivation of the right, of suffrage. (4) What is the jurisdiction? Laws 1869, -p. 196, sec. 13. (a) It is expressly limited to misdemeanors, (b) It is expressly limited to misdemeanors punishable in certain ways only: by fine, or by imprisonment in the county jail, or by both, or “by any forfeiture.” (c) It does not extend to misdemeanors punishable by fine and “any forfeiture;” nor to misdemeanors punishable by imprisonment in jail and “any forfeiture;” but (so far as the last clause may have any meaning whatever) only to these misdemeanors which are punishable “by any forfeiture.” (d) The crime of oppression in office is not punishable by forfeiture only. (5)' The punishment prescribed for the crimie of oppression in office (namely, fine or imprisonment, or both, and also forfeiture of office, disqualification. to hold office and disqualification to vote) removes this crime from the jurisdiction of the St. Louis Court of Criminal Correction, and places it in the class denominated infamous crimes, of which the circuit court alone has jurisdiction. Mo. Constitution, Art. 6, sec. 22-; R. S. 1900, sec. 3956. It is of no consequence whether felonies and infamous crimes are in the same class. They are both distinguished from misdemeanors (other than-misdemeanors connected with the right-of suffrage.) Mo. Constitution, art. 8-, sec. 10: Whatever may have been the classification of crimes at common law, i. e., infamous or otherwise, is of no consequence. Our statute creates a special class of infamous crimes, and does not extend the jurisdiction of the St. Louis Court of Criminal Correction over them. (0) The word “forfeiture” as used in penal statutes, especially when used in connection with the words “fine” or “penalty,” has reference to a forfeiture of property rights, and is equivalent in meaning to fine or penalty. Ex- parte Alexander, 39 Mo. Ap-p. 108; State v. McConnell, 70 N. H. 150; State v. Rose, 78 Kan. 600;. 1 Bouvier’s Law Diet. p. 602; R. S. 1909, sec. 4919. The -word “forfeiture,” as used in this statute, has reference to property rights only. Laws 1866, p. 78, secs. 13 and 25; Laws I860, p. 194, secs. 11, 17, 27. (7) The language used in the amendment was not “forfeiture of office,” but “forfeiture.” The statute confers no jurisdiction to forfeit an office.
   GOODIE, J.

Relator, William. Stinger, seeks to prohibit the St. Louis Court of Criminal Correction from trying a case against him, wherein, by the information of the prosecuting attorney of said court, he is charged, as a member of the Metropolitan Police Department of the City of St. Louis, with wilfully, unlawfully and maliciously arresting and imprisoning Edward Mfeany, while relator was acting in his official capacity, and with wilfully and unlawfully intending to oppress said Meany and deprive him of his liberty without any warrant to authorize the arrest, knowing Meany had been guilty of no violation of the law; in short, a prosecution for oppression in office, based on Section 4411, Revised Statutes 1909. That statute is as follows:

“Every person exercising or holding any office of public trust who shall be guilty of wilful and malicious oppression, partiality, misconduct or abuse of authority in his official capacity or under color of his office, shall, on conviction, be deemed guilty of a misdemeanor.” [Sec, 4411, R. S. 1909.]

As regards punishment for a violation of said section. another section provides:

“Every person who shall be convicted of any of the offenses mentioned in the preceding sections of this article, shall be forever disqualified from holding anv office of honor, trust or profit under the Constitution and laws of this State, and from! voting at any election; and every officer who shall be convicted of any official misdemeanor or misconduct in office, or of any offense which is bv this or anv other statute punishable by disqualification to hold office, shall, in addition to the other punishment prescribed for such offenses, forfeit his office.” [R. S. 1909, sec. 4413.]

Still another section says:

“Every officer or person holding any trust or appointment. who shall be convicted of any -wilful misconduct or misdemeanor in office, or neglect to perform any duty enjoined on him by law, where no special provision is made for the punishment of such misdemeanor, misconduct or negligence, shall be punished by fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment.” [R. S. 1909, sec. 4416.]

The jurisdiction of the Court of Criminal Correction was conferred in the act which established it, in these words: “Said Court shall have exclusive original jurisdiction of all misdemeanors under the law of the State committed in St.- Louis County, the punishment whereof is by fine or imprisonment in the county jail, or both, except in cases of assault and battery and affray which shall continue to he cognizable by justices of the peace and in relation to which the jurisdiction of said court shall be concurrent with them.” [Laws 1865-1866, p. 78, sec. 10.] That act was amended in 1868 (Laws 1868, p. 265), Section 10' of the original act becoming Section 13 of the amendment, but with a modification which was carried into a second amendment (Laws I860, pp. 194, 196). In Section 13 of the Act of 1869, the jurisdiction of the court was thus defined: “Said court shall have exclusive jurisdiction of all misdemeanors under the laws of this State committed in St. Louis' County, the punishment whereof is by fine or imprisonment in the countv jail or both, or by any forfeiture, except cases of assault and battery and riotous disturbance of the peace, which are coenizable by justices of the peace and in relation to which the jurisdiction of said court shall be concurrent with them: and said court shall have concurrent jurisdiction with the police court of the City of St. Louis of all offenses which may be declared to be misdemeanors under any law of the State and which may also he in violation of any ordinance of the. City of St. Louis.” It should be stated that since the separation of the city of St. Louis from the county, the jurisdiction is confined' to offenses committed in the city. [State ex rel. v. Wilder, 198 Mo. 166, 172.]

The Court of Criminal Correction is a court of record, consisting of two divisions organized alike. The judges must possess the Qualifications of a judge of the circuit court; the clerk, those of a clerk of the circuit court; a prosecuting attorney is provided for, who must possess the qualifications required of other prosecuting attorneys; the court may grant writs of habeas corpus; has jurisdiction of criminal appeals from justices of the peace; writs of error and appeals lie from it as from circuit courts, and with bills of exceptions. But nevertheless it is not a court proceeding according to the course of the common law and, therefore, has cognizance of no matters except those entrusted to it by the statutes. [Ex parte O’Brien, 127 Mo. 477; State ex rel. v. Murphy, 132 Mo. 382; State v. Anderson, 191 Mo. 134.] Its jurisdiction of the offense charged against relator is denied for several reasons which may be stated thus: First, the amendment of the jurisdictional section of the original act was intended to enable the court to try misdemeanors punished by a forfeiture of money, but not those punished by other forfeitures; for example, of an office. Second, the offense of oppression in office is not a misdemeanor at all and neither is it a felony, but an. anomalous crime distinct from] either of those classes; and as the Court of Criminal Correction is given cognizance only of misdemeanors, it has none of the case against relator. Third, the phrase, “or by any forfeiture,” in the amendatory acts, excludes from the court’s cognizance misdemeanors punishable by fine, imprisonment in jail or both, and, a forfeiture.

In support of their first proposition counsel for relator say the word “forfeiture” was used in the amendment in the sense of a fine; and sometimes it is thus used, especially in statutes prescribing the punishment for an offense. An instance is Ex parte Alexander, wherein the petitioner was seeking to be discharged from custody, he having been detained for non-payment of a fine imposed under a statute providing for a forfeiture of not more than one thousand dollars for selling lottery tickets. The prisoner contended the statute authorized no fine; hence the one assessed was illegal and he could not be imprisoned for not paying the one assessed. It was held forfeiture in the statute meant fine and the sentence of a fine was lawful. [39 Mo. App. 108.] A statute declaring that any one convicted of betting on an election “should forfeit and pay the sum of one hundred dollars to be recovered by indictment,” was interpreted to mean an offender should be fined that sum. [Commonwealth v. Avery, 14 Bush (Kv.) 625, 638.] Similar cases might be cited. The statute we are dealing with, was not enacted to prescribe the punishment for an offense, but instead to define what offenses a particular court may try, the criterion being the punishments prescribed for them in other statutes; and it may be that some statute had created a misdemeanor punishable by a forfeiture other than one of money, which the Legislature intended, by the amendment, to confer on the court power to try. The question at this point is, was' that the legislative purpose ? The reasonable view is that the jhrisdictional clause was amended in order to enlarge the jurisdiction of the court, not to leave it unchanged; and if “forfeiture” in the amendatory acts was used as a synonym of “fine” it was a futile repetition which added nothing to the court’s jurisdiction; since from the time of its creation it had possessed cognizance of misdemeanors punishable by a fine.

But the phrase in the amendment is “by any forfeiture;” words of broader significance than “forfeiture” by itself would be; for it is difficult to perceive how a statute conferring jurisdiction over misdemeanors “the punishment whereof is ... by any forfeiture,” can be interpreted to mean only misdemeanors punishable by a single kind; that is, a forfeiture of money; or otherwise expressed, by a fine. The phrase “any forfeiture” implies that there were more than one kind, as in truth there were; and implies, too, that the Legislature meant to make all of them triable in the Court of Criminal Correction. When the amendatory acts were passed, fraud in office was a misdemeanor and thus punishable. [Gen. Stat. 1865, p. 808, secs. 18, 19.] So was the refusal of a jailer to receive a prisoner committed to his charge. [Ibid, p. 804, secs. 43, 44.] Oppression in office, though not expressly declared a misdemeanor until 1879 (R. S. 18(79; sec. 1483), was treated as one in State v. Lawrence, 45 Mr. 492 (decided prior to that revision) and as not triable in the Court of Criminal Correction, solely because said court could not then try those punished by forfeitures. In the opinion the amendiiient of the jurisdictional clause after the case arose, was noticed as conferring power to try m&sd'emeanors followed by a forfeiture, and as an argument to show this could not be done under the original act. The court needed only to construe the first act to decide the case; but the observations made regarding the amendment show the view taken of its purpose and effect when the power of the court below to try forfeiture cases first was challenged, and show, also, that official oppression was considered a misdemeanor. The fact that in 1868, when the jurisdiction was modified, there were • the aforesaid misdemeanors and may be others, punishable by forfeitures, strengthens the conclusion that the Legislature intended to include them! among the offenses triable by the court. In this connection we are pointed to the passage in the original act where the court was charged with the duty of requiring all officers in St. Louis County who collected “fines, penalties and forfeitures for misdemeanors under any law of the State,” to pay the same into the county treasury (Laws 1865-6, p. 80, sec. 25), and to a section in the amendment requiring the clerk of the court to certify to the Auditor of St. Louis County a statement of the fines, penalties and forfeitures imposed by said court and collected by the marshal or the clerk and pay the same into the county (city) treasury. [Laws 1869, p. 194, secs. 11, 27.] As those provisions refer to forfeitures in the nature of “fines,” it is said “forfeiture” in the Jurisdictional clause was used in the same sense. At the date of the amendment the General Statutes permitted a fine, penalty or forfeiture inflicted by any statute, to be recovered by indictment and said that in all cases it should “go to the State, county, corporation, person or persons to whom the law imposing the same declares it shall accrue.” [Gen. Stat. 1865, p. 828, sec. 30.] Though a forfeiture of money, no matter in whát court adjudged, was thereby required to go to designated persons, it will not be'asserted the law implied that no court had jurisdiction of any other species of forfeiture ; for example, that of an office. Plainly the meaning of the word in the several statutes cited is not necessarily, nor in fact, its only statutory meaning; and the fact that the specified clauses of the acts concerning the court in question refer to forfeitures in the sense of fines, does not compel, nor even argue, that the word forfeiture was used in the jurisdictional amendments in the same sense.

Different reasons are assigned in support of the proposition that oppression in office is not a misdemeanor, the two briefs filed against the jurisdiction of the court below disagreeing somewhat regarding the construction of the statutes supposed to exclude the offense from the misdemeauor class. The brief for relator argues that it is a crime of another nature, because it is punishable) only by forfeiture of office, whereas the statutes define a misdemeanor as “every offense punishable only by fine or imprisonment in 'a county j'ail, or both.” [G. S. 1865, p. 828, sec. 35; R, S. 1909, sec. 4925.] Another brief says one convicted of official oppression can be fined, imprisoned in jail, disqualified to vote or hold office, and his office forfeited; hence as misdemeanors are declared to be offenses punishable only by fine or imprisonment, or both, the offense' in question is of another kind. And the argument is advanced, too, that it is not a misdemeanor, or at least one not triable by the court below, because it is an infamous crime.

We have stated that in the Revised Statutes of 1879', Section 16 of Chapter 204 of the General Statutes of 1865 was amended, and that one of the changes made was a declaration that every person guilty of wilful and malicious oppression, etc., in his official capacity ox-under color of his office, should be deemed guilty of a misdemeanor. [R. S. 1879, sec. 1483.] Therefore, so far a§ the. power of the Court of Criminal Correction to try the relator depends on the act he is accused of being a misdemeanor, that statutory declaration is conclusive. If an offense is classified as a felony or as a misdemeanor by the statute which creates it, its character as the one or the other is determined thereby, regardless of the punishment prescribed; and even though by the common law definition, or by one given in a statute declaring generally what elements are required to constitute a felony and wbat a misdemeanor, it would fall in the other class. [State ex rel. v. Foster, 187 Mo. 590, 605.] In such a ease the statute concerning the particular criminal act, works an exception to the general definition.

Long before the adoption of the present Constitution the offense in question was, as it still is, an infamous crime witliin the meaning of the statute defining such crimes as including every -offense for which the culprit is “disqualified, or rendered incompetent to be a witness or juror, or to vote at any election, or to hold any office of honor, profit or trust within the State.” [C. S. 1865, sec. 34, p. 828; R. S. 1900, sec. 4924.] The Constitution empowered the General Assembly to enact law’s “excluding from the right of voting all persons convicted of felony or other infamous crime, or misdemeanors connected with the right‘ of suffrage.” [Const. Art. VIII, sec. 1(X] It is asserted for the relator that this provision of the Constitution prevents any infamous crime from being classed as a misdemeanor; which is the same as to say the Statutes of 1879, in declaring official oppression a misdemeanor, violated the Constitution. We understand the reasoning to run this wav: Prom the mention of the three kinds of offenses for which a perpetrator may be disqualified by legislation to vote, thel inference is to be drawn-that any offense which is neither a felony nor a misdemeanor connected with suffrage, but which nevertheless deprives of said right, is one of the “other infamous crimes ’ ’ spoken of, but cannot be a misdemeanor. This interpretation of the cited provision is strained and unsound. ‘The purpose of that clause of the Constitution was not to divide criminal acts into three distinct and unchangeable classes, nor to declare what transgressions should fall in one class and what in another, Neither was it intended to forbid the Legislature to make particular acts felonies or misdemeanors as might be deemed expedient, as was decided in a case involving a somewhat similar question. [State ex rel. v. Buckman, 18 Fla. 267.] The subject-matter of the provision was the voting franchise, and its purpose was to empower the legislature to withhold that franchise from persons unworthy to exercise it; namely, perpetrators of felonies or other infamous crimes, whether belonging to the misdemeanor class or not, and misdemeanors connected with the suffrage. Larceny in any degree, including, of course, petit larceny, always has been a misdemeanor and also an infamous crime followed by disabilities upon conviction. [G. S. 1865, p. 791, sec. 66; R. S. 1909, sec. 4631.] Simply because it was and is infamous, a perpetrator may be denied the right to vote pursuant to the constitutional clause in question, although. the crime is neither a felony nor a misdemeanor connected with suffrage. What has been said answers all the objections as to the class of the offense relator stands charged with, that class having been fixed by a valid statute.

We pass to the third proposition asserted for the relator, namely, that the language of the acts to amend the jurisdictional clause of the act to create the Court Criminal Correction, excludes relator’s alleged offense from the cognizance of said court, because of the punishment prescribed. As stated before, the two briefs filed in opposition to the court’s jurisdiction do not agree upon this point, and it is proper, perhaps necessary, to .determine which view is right.

The theory that forfeiture is the sole punishment is arrived at by the following reasoning: Section 4416, Revised Statutes 1909, says every officer who is convicted of misconduct in office, etc., where no special provision is made for the punishment of the misdemeanor, shall he punished by a fine not exceeding five hundred dollars or imprisonment in a county jail, not exceeding-one year, or both. The emphasized words “where nq special provision is made for the punishment’ ’ are said to remove the offense of official misconduct from the effect of that section because a special punishment is prescribed in Section 4413, namely, forfeiture of office, disqualification to hold office and to vote. In the statutes of 1865 and in earlier revisions, oppression in office, fraud in office, the exaction of illegal fees by officers, the collection of taxes not due or more than were due, were all declared criminal acts and penalties of fine and imprisonment were provided for each in the respective sections defining them. [G. S. 1865', ch. 204, secs. 16>, 17, 19, 20.] Forfeiture of office and disqualification to hold office were prescribed also for official oppression or fraud. [Ibid, secs. 18, 231] In the same chapter was a section (21) exactly like Section 4416 of the present revision, and providing a general punishment for official misconduct when no special punishment was provided. Until 1879 that section applied to none of the offenses above enumerated, because every one had its particular punishment prescribed. In Revised Statutes of 1879-, the special punishments by fino and imprisonment were omitted from the different sections, but the disqualification for office, etc., and forfeiture of office, where these penalties attached, were left as before. [R. S. 1879. secs. 1483, 1485, 1487.] The purpose of this change was to include those offenses within the general punishment prescribed in Section 1488 of that revision (the same as Sec. 21, ch. 204, G. S. 1865, and Sec. 4416, R. S. 1909). The words “where no special provision is made for the punishment” mean, in our opinion, where no fine or imprisonment is provided, and were not intended to exclude from the operation of the section an official misdemeanor merely because forfeiture of office attended it. This view of the matter becomes clearer in the light thrown on it by the clause of the disqualifying and forfeiting section, which declares that every officer convicted of misconduct punishable by disqualification to hold office, “shall in addition to the other punishment prescribed for such offense, forfeit his office.” [Gr. S. 1865, p. 808', sec. 23; R. S. 1879, sec. 1485; R. S. 1909, sec. 4413.] The phrase we. have italicized evidently contemplated that penalties other than forfeiture of office had been or might be prescribed for oppression or other official misconduct— penalties of fine or imprisonment'(See, too, Const. 1875, Art. 14, sec. 7); and we hold that since 1879 the punishments provided in Section 1488 of the Revised Statutes of that year (R. S. 1909, sec. 4416) could be inflicted for oppression in office. In a case of conviction for that crime, a fine was assessed by the jury and this was held to be proper under Section 3737, Revised Statutes 1889 (R. S. 1909, sec. 4416), and by the judgment of the court upon the verdict, the defendant was removed from office, which also was held proper under Section’ 3734, R. S. 1889 (Sec. 4413, R. S. 1909). [State v. Ragsdale, 59 Mo. Appv 590, 608.] That both punishments might be imposed in the sentence was taken for granted. As to whether Article II, Ch. 90, of the Statutes affects this question, we need not now decide.

In one brief the position is taken that all consequenees prescribed in both sections '(4416 and 4413) would follow a conviction for official oppression, and on this premise is based the main attack on the jurisdiction of the Court of Criminal Correction. The argument runs in this wise: the crime may be punished as follows, by, first, disqualification to vote; second, disqualification to hold office; third, forfeiture of office, and, fourth, fine or imprisonment, or both; whereas it is contended the jurisdiction of the Court of Criminal Correction is, under the amendatory acts, limited to misdemeanors punishable in -not more than two of those, ways, namely by fine or imprisonment or both or forfeiture. If disqualification to vote or hold office, when incident to conviction for a misdemeanor, ousts the jurisdiction of the court below then it has none over petit larceny, for larceny, in any degree disqualifies for those franchises. [R. S. 1909, sec. 4631; R. S. 1879, see. 1378; G-. S. 1865, p. 791, sec. 66.] Yet petit larceny is not only a misdemeanor, as said before, but. it is one of which the Court of Criminal Correction has been held to have cognizance. [State v. Buchardt, 144 Mo. 83.] Therefore the argument ag’ainst the court’s jurisdiction fails in so far as it rests on the premise, that a loss of full citizenship upon conviction for a misdemeanor deprives the court of jurisdiction. No doubt the deprivation of civil rights in consequence of a crime is in a sense punishment; but it is not the punishment which, under our statutes, determines the grade of the crime, nor, in the case of misdemeanors attended with such a loss, does it determine the jurisdiction of the court in question.

-The point most pressed it that the language of the amended clause whereby the court was given cognizance of misdemeanors the punishment whereof is fine or imprisonment in jail, or both, or forfeiture, excludes from the court’s cognizance misdemeanors of which the punishment must be not only fine, imprisonment or both, but also forfeiture of office; that the word “or” preceding the words “by any forfeiture,” operates to prevent the court from trying a misdemeanor where fine or imprisonment or both, plus forfeiture of office, must follow conviction. That is a refined and technical construction, for it is not easy to understand why the Legislature would confer the power to try misdemeanors entailing forfeiture alone, and not those also punishable in the usual way. However, the point must be determined by the settled rules of inter'pretation. The word or in statutes or documents is frequently interpreted to mean and, and this interpretation is given to it whenever required to carry out the plain purpose of the act or contract and when to adopt the literal meaning would defeat the purpose or lead to an absurd result. [2 Sutherland, Stat. Const, sec. 397; Black, Interp. Laws, p. 228.] Some courts have gone so far as to say the words “and” and “or” are interchangeable as the sense may require (People ex rel. v. Rice, 138 N. Y. 151), an extreme rule and perhaps not supported by the weight of authority. But it is certain “or” is often interpreted to mean “and” and vice versa if the context shows that meaning was intended, or when, as said, an absurd consequence or frustration of the object of the enactment would otherwise follow. It is conceded this rule obtains in dealing with laws affecting civil rights, but insisted that it does not when a pen'al statute is involved, and that then the word must bear its ordinary meaning; and cases are cited 'which so hold. [Buck v. Danzenbacker, 37 N. J. L. 359; State v. Walters, 97 N. C. 489.] Although that rule of interpretation has been followed by some courts, it has not been by all, and a standard text-writer says: “It is opposed to the greater weight of authority, most of the cases holding that such a conversion of those two words, one into the other, is permissible in statutes of that character (i. e. penal) and where it may operate to the disadvantage of the accused, when the spirit and reason of the law plainly require and justify it.” [Black, Interp. Laws, 230.]

The Supreme Court of West Virginia held that a clause of the State Constitution which declared no person should be deprived of life, liberty or property without due process of law and the judgment of Ms peers, did not mean that every accused person, whatever the charge, was entitled to a jury-trial; but that the word. and should be construed to mean or, and to provide that no one should be. deprived of life, liberty or property without due process of law or the judgment of his peers. In .reasoning upon the point the court said “due process of law” meant according to the law of the land, which never had accorded to a defendant, under, all circumstances, the right to a trial by jury before he could be deprived of his property, and to do so would make government impracticable; saying further, that it was difficult to know why the conjunction and was used instead of or,, but the provision must “be interpreted to mean the same as'in the constitution of other states and the word ‘and’ used in it be interpreted to mean ‘or.’” [Jelly v. Dils, 27 W. Va. 267, 274.]

A statute of Pennsylvania regarding contempts said no publication out of court respecting the conduct of the judges, officers of the court, etc., should be cause for an attachment; “but that the party aggrieved might proceed against the author, printer or publisher, or either of them, by indictment, or he may Bring an action at law and recover damages.” A person libelled first brought an action for damages and later the author of the libel was indicted under a statute against criminal libels. To this indictment a plea in bar was filed setting up that the prosecutor had previously instituted an action at law and, therefore, under the statute, the right to indict was lost. The court held this construction would operate to give the aggrieved party, instead of the attorney for the Commonwealth, the privilege of determining whether the culprit should be prosecuted or sued for damages; a result the Legislature could not have intended and therefore the word “or” should be given the meaning of “and” so that the statute would authorize both an indictment and an action for damages. [Poster v. Commonwealth, 8 Watts & Searg. (Penn.) 77.]

A defendant was indicted for “inveigling, stealing and carrying away three slaves,” under a statute which, in that language, created the offense. The trial court instructed the jury the charge of- “inveigling, stealing and carrying awa.y,” etc., would be established by any proof which,satisfied the jury the defendant stole the slaves, and on the appeal this ruling was assigned for error. Another section of the statute was directed against persons who should hire, aid, or counsel any person to “inveigle, steal or carry away,” etc. The first section related to the principal in the crime and the second to an accessory. On appeal it was held the word or in the first section should be given the meaning of and, as the offense consisted in stealing a negro whether by inveigling him or in other ways. [State v. McCoy, 2 Speers (S. C.) 711.]

In a prosecution under a statute to regulate the sale of intoxicating liquors, which' declared that “for every violation of the provisions of the first amd second section of this act, every person so offending shall .forfeit and pay a fine,” etc., and was construed to mean or. The first section of the statute prohibited the sale, without a license, of intoxicating liquors to be drunk upon the premises where sold; the second section made it unlawful toi sell to minors, persons intoxicated, etc. The defendant was convicted for selling without a license, and on appeal contended the punishment prescribed was for a -violation of the first and second sections ; that is, both, and he had been wrongly sentenced for violating only the first section. The opinion treated this contention lightly, as it deserved to be, saying: “Even a penal law should not be construed so strictly as to defeat the obvious intention of the Legislature. [American Fur. Co. v. United States, 2 Peters, 358.] And and or are convertible as the sense of the statutes may require. [Townsend v. Read, 10 C. B. (N. S.) 308; Boyles v. Murphy, 55 Ill. 236.] And this is the rule even in a criminal statute. [State v. Myers, 10 Iowa, 448; Miller v. The State, 3 Ohio St. 476.]” [People v. Sweetser, 1 Dak. 308, 314.]

A law provided that “if the father and mother of any child under the age of six years exposed it,” etc., with intent to abandon it, they should be deemed guilty of a crime. A husband and wife weré indicted for such a deed and the husband was tried and convicted. He appealed on the theory the crime was not committed unless his wife participated, pointing out that the law as it stood in a prior revision read: “If the father or mother,” etc. It was contended the Legislature must have meant in substituting the word and for or, to change the elements of the offense by requiring a joint perpetration by both parents. The court conceded that where the language of a statute is materially changed, ordinarily a change of meaning is intended and quoted a passage from - Kent, setting forth the principles of interpretation:

“It is a rule in the construction of statutes, that, in the first instance, the grammatical sense of the words is to he adhered to. If that is contrary to, or inconsistent with, any expressed intention or any declared purpose of the statute, or if it would involve any absurdity, repugnance or inconsistency in its different provisions, the grammatical sense must be modified, extended or abridged, so far as to avoid such an inconvenience, but no farther; [Warburton v. Loveland, 1 Hud. & Brooke, (Irish) 2 Q. B. R. 648; Tolderoy v. Colt, 1 M. & W. 264.] Penal statutes are to he construed strictly. By this is meant only that they are not to he so extended by implication, and beyond the legitimate import of the words used, as to emiblrace cases or acts not clearly described by such words. They are not to he made to involve an absurdity, or frustrate the design of the legislators. [Rawson v. State, 19 Conn. 299; United States v. Goodwin, 12 Wheat. 460. See 1 Kent, page *463, note, and *465, note.]"

The court then said, apropos to the. appeal it was considering, that if it adopted the construction invoked by the appellant, if one of the parents was dead, the survivor might abandon a child with impunity; and such ai construction ought not tp he placed on the statute, as it would defeat its purpose; that the word and may he interpreted as a disjunctive, and the word or as a conjunctive when the sense absolutely requires it. [State v. Smith, 46 Iowa, 670, 673.]

According to those authorities and others we might cite, the courts will depart from the literal meaning of the words of a penal statute even when to do so will he to the disadvantage of the accused; and this doctrine is applied in interpreting the very words with which we are concerned. In harmony with the above cases, and expressly approving some of them, this court held the word or in a statute defining a crime, should he construed to mean and in order to avoid attaching a meaning to the law which would be inconsistent with a rational purpose in its enactment. [State v. Long, 238 Mo. 383, 392.] A text-writer of high authority says: "The conjunction and will be read as or and or as and when the sense obviously requires and this, in plain cases, even in criminal statutes against the accused.” [Bishop, Stat. Crimes (3 Ed.), p. 259.]

We are not dealing with a criminal statute, but with a jurisdictional one. N!or will it be to The prejudice of relator to construe or as used in the amendatory act affecting the Court of Criminal Correction to mean and; for if his case were held not triable there but in some other court, the same consequences would attend conviction.. Whatever may be the rule for interpreting these words in penal laws;, when used elsewhere they are given the meaning their context or the purpose intended requires. This court displaced the word “or” and substituted “and” in a bond given in an attachment suit for the delivery of property, in order to avoid a consequence contrary to the intention of the parties, and despite the unambiguous language of the bond. [Hardcastle v. Hickman, 26 Mo. 475.] A law to exempt from execution the tools of a mechanic used to carry on his trade for the support of himself and family; was held to exempt the tools of a mechanic who was neither housekeeper nor the head,of a family, the word and being treated as equivalent to or in view of the general purpose of the law. [Geiger v. Kobilka, 26 Wash. 171.] It would be useless to pursue the numerous cases o" like tenor. We have been cited to no statutes in force when the amendments were, passed which created a misdemeanor punishable only by a forfeiture, except those where the so-called forfeiture was a mere fine. Where disfranchisement or disqualification to hold office, or loss of office followed conviction, a fine or jail sentence could be imposed, too. Be that as it may, we have seen there were then misdemeanors punishable by fine and imprisonment and forfeiture of office, and hold the object of the amendment was to widen the court’s jurisdiction by extending it over misdemeanors whereof the punishment was a forfeiture, even though the offense was punishable, too, by the other penalties of fine or imprisonment, or both.

Our preliminary .rule is discharged and the writ denied.

All concur.


source: Caselaw Access Project

author: GRAVES, J. BLAIR, J.

license: Public Domain

text:
    FIDELITY LOAN SECURITIES COMPANY, Appellant, v. WILLIAM C. MOORE.
    In Banc,
    December 22, 1919.
    1. DEPARTURE: Demurrer: Absence of Original Petition. If the trial court sustained a demurrer to the amended petition, a ground therein that the said petition was a departure from the original petition cannot be considered on appeal in the absence of said original petition from the record.
    2. CONTRACT: To Be Governed and Construed By Laws of Another State. Parties by their written contract concerning the purchase and transfer of lands in Texas may lawfully agree therein that their obligations' and agreements are to be construed and governed according to the laws of said foreign state, even though they may not at the time be domiciled there.
    3. -: -: Not Pleaded: Specific Performance. A petition to enforce a contract which contained an agreement that “in case of dispute, or in case of litigation to enforce any of the provisions of this contract, or any note herein mentioned, then the notes and the contract shall be construed and interpreted and given force and effect of and by virtue of the existing laws of the State of Texas, as interpreted by the courts of said State,” does not state a cause of action if it fails to plead said laws and their construction. Said agreement is lawful and a vital part of the contract, and the court cannot take judicial notice of such laws or the construction thereof, and to be available as a guide to the “litigation” they must be pleaded.

      Held, by BLAIR, J., dissenting, that since the contract was made in Texas and pertains to the purchase and conveyance of Texas lands, the laws of that state would have applied without such agreement, and the proper procedure is to apply the law of the forum and presume the laws of Texas to be the same as our own, and that no duty rests upon either party to plead and prove the laws of Texas as a condition of his being heard.
    4. PLEADING: Laws of Another State. Statutes of other states are regarded as matters of fact, and when relied on to support a cause of action of defense must be pleaded and proved, as other facts.
    5. -: -: Specific Performance: Common, Law. In Missouri the doctrine and right of specific performance come from the equitable doctrines of the common law, and Texas has no common law, and if by statute she has adopted such law, it is necessary, .in a suit for specific performance of a contract, which stipulated that it is to be construed according to the statutes and decisions of the courts of Texas, to specially plead those laws and constructions. [BLAIR, J., dissenting.]
    Appeal from Polk Circuit Court.— Hon. G. H. Skinker, - Judge.
    Affirmed.

      Herman Pufahl and IF. F. Ztimbrunn for appellant.
    (1) Tlie assignee of a written contract for tlie sale or purchase of land can maintain in his own name a suit for specific performance. 36 Cyc. 758. (2) Specific performance is not one wholly resting in the discretion of the court, but one to be exercised by a just and reasonable discretion and not in an arbitrary or caprim ious manner. Kirkpatrick v. Pease, 202 Mo. 493; Evans v. Evans, 196 Mo. 23; McCall v. Atchley, 256 Mo. 54; Beheret v. Myers, 240 Mo. 77; Edwards v. Watson, 258 Mo. 646. (3),. Specific performance will lie in given cases; defendant’s demurrer confessed all well pleaded facts and therefore the trial court exercised its discretion in an arbitrary and capricious manner and not in a just and reasonable way.
   GRAVES, J.

This is an action by an assignee of a vendor of. certain Texas real estate, to specifically enforce the contract. Petition was filed in two counts. The first count was a simple action at law upon a promissory note. The second count was in equity for the specific performance of a certain contract pleaded and set out in Jiaec verba in the petition. Demurrers were filed to both counts of the petition. The court overruled the demurrer to the first count, but sustained the demurrer to the second count. Thereupon the plaintiff dismissed the first count, and elected to stand upon the second count. Judgment in accordance was rendered against the plaintiff, and from such judgment this appeal was taken to this court. The sufficiency of the second count is the matter here for determination. The demurrer to this count reads:

“Defendant specially demurs to the second count of the plaintiff’s amended petition for the following reasons:
“1st. Because said count is a departure from the original petition in this cause.
“2nd. Because said count does not state facts sufficient to confer jurisdiction on this court or constitute a cause of action.
“3rd. Because the court has no jurisdiction of the subject of the action.
“4th. Because said count does not state facts sufficient to constitute a cause of action.
“Wherefore defendant asks judgment.”

The second count of the petition with which we are concerned is a bill in equity seeking to enforce the specific performance of a contract. The contract, set out verbatim in the petition, is between the White Star Land Company, a corporation, and William C. Moore, the defendant, and by its terms the White Star Land Company agrees to sell and convey to Moore a tract of land of 76,627 acres, described, in Hidalgo County, Texas, together with certain water rights.

The consideration for the purchase provided in the contract was $13,409.50. This amount was made up as follows: $7,400' was represented by a note, due on demand, executed and delivered at the execution of the contract. The purchaser assumed and agreed to pay $3,061.50, which was represented by vendor’s lien notes against the property. There were seven of said notes set out in the contract for $514.50 each, the first maturing on the first day of January, 1915, and one maturing each year after that until 1921. Also, the purchaser assumed and agreed to pay the sum of $2,408 represented by vendor’s lien notes, five in number, of $481.60 each, the first due and payable on the first day of September, 1915,, and one on the first day of September each year after that until the last one should fall due in 1919.

The contract provided that the Star Land Company, on or before the sixth day of July, 1914, or within a reasonable time thereafter, provided all notes theretofore matured shall have been fully paid, would cause to be delivered to the purchaser a warranty deed, to take effect as of the date of the contract conveying said land to the purchaser, “with all water rights, titles and privileges incident or appurtenant thereto, ’ ’ etc.

The Star Land Company was also to deliver to the purchaser a copy of an abstract showing a good, merchantable title to said land, vested in the grantor in said deed. The purchaser was allowed thirty days for the examination of the abstract and the presentation of objections to it, and a reasonable time thereafter was allowed to 'remedy any defects found in it.

The purchaser further assumed and agreed to pay all taxes and legal assessments upon said land for the year 1914 and thereafter, and water rental charges, etc., from the first day of January, 1915.

If the purchaser should fail to comply with the provisions of the contract and fail to pay any of the notes or refuse to accept the abstract and deed when tendered, it is provided that “this agreement may at the option of the White Star Land Company, or owner of said land, without notice, be terminated, and thereafter the same shall be mill,and void, and of no further force and effect,” and the money and notes already received, as aforesaid, should be forfeited as liquidated damages for failure to carry out the contract.

If the purchaser should default in the payment of any note, or any part thereof, then all the sums mentioned in the contract would, at the option of the White Star Land Company, become due and payable. A vendor’s lien was expressly retained and reserved upon the land to secure each and all the payments mentioned in the contract.

There is this stipulation:

“This agreement is made subject to the disapproval of the owner of said land herein agreed to be sold and conveyed, and should such owner disapprove same, then this agreement shall .become null and void, in which event all payments made and notes given by purchaser are to be returned to purchaser.”

This further stipulation is found in the contract, pleaded in haec verba, as aforesaid:

“It is agreed between the parties hereto,-that in case of dispute, or in case of litigation to enforce any of the provisions of this contract, or any note herein mentioned, then the notes herein mentioned and this contract shall be construed and interpreted and given force and effect of -and by virtue of the existing laws of the State of Texas, as interpreted by the courts of-said State.”

After setting out the contract the petition alleges that at the time of its execution and delivery the defendant William C. Moore, pursuant to the terms thereof, executed and delivered to the Star Land Company his note for $7,490, payable on demand, dated June 6-, 1914, and set out a copy of the note. On the back of the note was a provision that at the option of the maker the note might be paid by the conveyance of a tract of land situated in South Dlakota, subject to an incumbrance on same. The petition alleged that the plaintiff demanded the payment of the note after it fell due or the conveyance of the South Dakota land, and defendant refused to comply with any of the terms and conditions of the contract.

The petition then alleged that the plaintiff purchased the said note of $7,400' and the contract from the White Star Land Company, and the assignment by which the transfer was made is set out; that thereby the plaintiff became the owner of the note and the contract, and stood ready, able and willing fully to comply and liquidate the terms of said contract.

It is further alleged that the defendant failed to pay the note for $7,400 on demand and failed within a reasonable time to comply with the terms of the contract; failed to assume the vendor’s lien notes mentioned and refused to comply with any terms or conditions of said contract, “although plaintiff has at all times been ready and willing to comply with the said contract and perform all the obligations and conditions therein contained, and has tendered and now tenders to the defendant warranty deed; for said land in accordance with the provisions and terms of said contract and offers to perform all obligations devolving upon it by the terms thereof.”

The petition then alleges that the plaintiff has no complete and adequate remedy except in a court of equity and prays for a specific performance of the contract and that the defendant be required to pay the $7,400' note and interest and the sum of $514.50, representing the first note assumed and falling, due on the first day of January, 1916; and that the said defendant be further required to assume the payment of the residue of the $3,061:50 incumbrance against said land and be required to satisfy all interest and notes maturing prior to the final-trial of this cause, and that the rights of the plaintiff and defendant be by the courts fixed and determined and adjudicated herein..

The record does not show the theory upon which the trial court sustained the demurrer. In the brief of appellant it is stated that the original petition was amended by the addition of the second count, and it is this amended petition which is involved here. This perhaps accounts for one of the grounds of the demurrer. It is also stated in the brief:

“The record is absolutely silent as to the reason the tiial court held the demurrer to be -well taken as to the second count in the petition, but inasmuch as this court will probably assume the reason that existed, we might say, that the oral statement given by the trial judge to counsel upon the hearing of the demurrer was that thq contract in question lacked the elements of mutuality and that specific performance was one in all events resting in the discretion of the court and that therefore lie would sustain the demurrer as to the second count.”

These statements of counsel are not binding here, and we shall go to the record for the reasons of the court, msi. If upon any ground the demurrer was properly sustained, the judgment msi must be sustained. Respondent does not brief the case here, relying (as he may do) upon the presumption of a right judgment below. The law casts the laboring oar upon appellant, and respondent intrusts liis oar (whether laboring or otherwise) to this court.

I. The demurrer, in-its first ground, urges that there was a departure from the original petition. "We cannot consider this point, because the original petition is not before us in the present record. ^ Ave pnow 0f it, is the voluntary statement of counsel in their brief. These statements we cannot consider. Absent from the record of the original petition, this giound of demurrer is not in the case here. This leaves the general statements (1) that the petition does not state facts sufficient to show jurisdiction in the court msi. and (2) that the petition does not state facts sufficient to constitute a cause of action. A discussion of the latter we think will determine the case, and that question we take next.

II. The contract pleaded states that in case of dispute or “litigation to enforce any of the provisions of this contract, or any notes herein mentioned, then the notes herein mentioned and this contract shall be construed and interpreted and given force and effect of and by virtue of the existing laws of the State ot Texas, as interpreted by the courts of said State.”

The present action is litigation to enforce the contract by decreeing a specific enforcement thereof. The petition nowhere pleads the existing laws of Texas, or the construction thereof by the courts of Texas. In other words the parties solemnly agree that their contract shall be governed by the Texas laws, as construed by the Texas courts, yet.the petition fails to aver those laws and their construction. This is an integral and vital part of this contract, so made by the solemn agreement of the parties. By this reference, these laws and their construction by the Texas courts is as much in the contract as if fully written therein, and in suing upon the contract the petition should have averred the effect of the existing Texas laws, as construed by the courts of that State. It is difficult to see how a Missouri chancellor could specifically enforce the contract without being fully advised as to all the terms of the contract. For aught we know there may be no such doctrine as specific performance under the laws of Texas. The State of Texas, we judicially know, was not formed from territory at any time governed by the English common law.

But, to the real point of the case. The parties had the right to contract, and to agree in such contract that the laws of Texas should govern their contract. This intention of the parties will be carried out by the courts, when they are called upon to enforce the contract. In other words, it is a vital part of the contract. The rule is thus stated in 9- Cyc. pages 665- and 6-66.

“Where the parties have expressly provided that the contract shall he governed hy the law of a particular country this intention will as a rule he carried out hy the courts. Thus where two persons make a contract in England, hut hy its very terms it is provided that it shall he governed hy the laws of Scotland, the law of Scotland then becomes the proper law of the contract, and the law by which it is to be interpreted and its legality decided. Parties may substitute the laws of another place or country than that where the contract is entered into, both in relation to the legality and extent of the original obligation, and in relation to the respective rights of the parties, for a breach or violation of its terms., This is part of the jus gentium, and is enforced ex comitate, when the enforcement of the contract is sought in the courts of a country governed by a different rule than the local or adopted law of that contract. ’ ’

In the instant case, this vital part of the contract, i. e. the laws of Texas and their construction by the courts of Texas, is not pleaded, and the court thereby left in the dark as to what the real contract is, and therefore left without this aid in the enforcement of it. It is shown upon the face of the petition that the plaintiff has failed to plead a material and vital portion of his contract.

Reverting to the right to contract to the effect that the laws of a certain State- or country shall govern the contract, in the early case of McAllister v. Smith et al., 17 Ill. l. c. 334, we find a clear enunciation of the rule now generally recognized.

“But parties may substitute the laws of another place or country, than that where the contract is entered into, both in relation to the legality and extent of the original obligation, and in relation to the respective rights of the parties for a.breach or violation of its terms. This I call a substitution of the laws of another'place or government, for those of the place of entering into the contract, and which is noted by the authorities as an exception to the general rule. This is allowed in all civilized countries, and recognized as part of the jus gentium, or law of nations, respecting private and personal rights, and in all cases, where the subject-matter of the contract is not malum in se, immoral, or contrary to the local policy, or dangerous to the peace and good order of the particular community, in which it is sought to be enforced. When parties seek to enforce such obligations, in the courts of the country whose laws have been adopted as those of the contract, it presents only an ordinary case of jurisdiction to the court, over a contract made under the same laws of the forum, and by parties within its jurisdiction. But when the enforcement of the contract is sought in the courts of a country governed by a different rule than the local or adopted law of that contract, the law governing it has no force or obligation ex'proprio vigore, in that forum, but ex comitate, under the general public law, the court veil enforce it, giving* extra territorial effect to the laws of another government, ■ where it is not dangerous, inconvenient, immoral, nor contrary to the public policy of the- local government.”

This doctrine is fully discussed and recognized in Le Breton v. Miles, 8 Paige (N. Y.) 201. The English rule is the same. In Greer v. Poole et al., 5 Law Reports (Queen’s Bench Division), l. c. 274, it is said:

“It is no doubt competent to an underwriter on may contract with reference to the laws of another an English policy-to stipulate, if he think fit, that such policy shall be construed and applied in whole or in part according to the law of any foreign State, as if it had been made in and by a subject of the foreign State, and the policy in question does so stipulate as regards general average, but except when it is so stipulated the policy must be construed according to our law and without regard to the nationality of the
In fact it is a generally recognized rule that parties vessel.”

State or country, although they may not he domiciled there at the time of making the contract, and these contracts will be enforced and recognized in other forums where contrary rules of law may prevail.

III. With the undoubted right to contract with reference to the application of the laws of Texas, the next and vital matter is, should those laws have been pleaded by the plaintiff in this case, in order to malic its case. IVe think so, and have suggested some thoughts along this line in the paragraph above.

However, the general rule is thus tersely stated in 36 Cyc., p. 1240: “Statutes of other States are regarded as matters of fact, and when relied on to support a cause of action or defense must be pleaded and proved."

This rule has the approval of this court. In Lee v. Mo. Pac. Ey. Co., 195 Mo. l. c. 415, Valliant, J., said: “When one relies on the law of a foreign country or of a sister State for his right of action he is required to state in his pleading what the law of the foreign jurisdiction is. Such a law is to be pleaded and proven as a fact.”

See also Mathieson v. Railroad, 219 Mo. l. c. 547 et seq.

In the instant case the laws of Texas are made a part of this contract by direct reference. The}- constitute a part of the very cause of action, and should have been pleaded as well as proven in the trial’of the case.

Nor is this all. The doctrine of specific performance is an equitable doctrine and a part of our common law. It comes to us from the common law. [36 Cyc. 543 et seq: 26 Am. & Eng. Ency. Law, p. 14.] In Missouri we have no statute covering the doctrine, except in cases of administration. [Vide Secs. 177 to 185', E. S. 1909.] So that if we could even presume that the statute laws of Texas were the same as ours, we would still have no statutory authority for the present action. In this State our right for specific performance comes from the equitable doctrine of the common law. But Texas had no common law, and if she by statute adopted such law, the statute must he pleaded and proven. [Mathieson v. Railroad, 219 Mo. l. c. 550, et seq. and cases therein cited.]

We therefore conclude that the failure to plead the laws of Texas and the construction of the same given by the courts of that State, rendered this petition fatally defective, and subject to the demurrer interposed. Other questions need not he discussed. The judgment nisi was right, and should be affirmed. It is so ordered.

Walker, G. J., and' Goocle and Williamson, JJ., concur; Williams, J., concurs in result; Blair, J., dissents; Woodson, J., not sitting.

BLAIR, J.

(dissenting). — The record shows the land is in Texas and the contract was made'in Texas. The laws of Texas would have applied without a stipulation in the contract to that effect. The stipulation made expresses that which, without it, would have been implicit. In my opinion, the proper procedure is to apply the law of the forum, or (Philpott v. Ry. Co., 85 Mo. l. c. 167) presume the law of Texas to be the same as our own. It is not necessary, in this case, to discuss the difference between these two courses. I think the authorities to he cited establish the correctness of this view and of its applicability here. If either party desire to plead and prove the Texas law, he may. No duty rests upon either to do so as a condition of his being heard. [Cherry v. Sprague, 187 Mass. 113, 67 L. R. A. 3 and note; Parrot v. Railway, 207 Mass. 184, 34 L. R. A. (N. S.) 261, and note; Cuba Railroad Co. v. Crosby, 222 U. S. 473, 38 L. R, A. (N. S.) 40, and note.] The burden of bringing forward the law of a state like Texas is upon him who may desire the protection of that law, and is not, in the first instance, a duty of either party. For these reasons I am under the necessity of withholding my concurrence.


author: GOODE, J.

text:
    THOMAS WARD McMANUS, Appellant, v. CAMILLA S. W. BURROWS et al.
    In Banc,
    December 22, 1919.
    1. APPELLATE JURISDICTION: Constitutional Question: Interpretation of Statutes. If appellant’s liability is dependent wholly upon an interpretation of State statutes, and the interpretation of said statutes in no wise involves the construction of the Federal or State Constitution, the Supreme Court does not have jurisdiction of an appeal from a judgment of the circuit court adjudging appellant liable under the statutes.
    2. -: -: -: Interest on Judgment. Whether or not a judgment allowing commissioners in a partition proceeding a designated sum for their services bears interest from the .date thereof, depends wholly on the statutes of this State, and, where they are admitted to be valid, an interpretation of them by the circuit court, ruling that said judgment does bear interest, whether right or wrong, does not deny to the objecting coparcener due process of law or the equal protection of the laws, although the ruling is made by overruling a motion to quash an execution issued for the collection of the interest, in which motion it is alleged that to allow interest on the judgment would be to deny to movent due process of law and the equal protection of the laws, in violation of designated constitutional provisions. If the ruling was wrong it was but judicial error in construing State statutes, given after movent had notice and his day in court, and such error does not constitute denial of due process or equal protection of the laws, the validity of the statutes themselves being in no wise questioned.
    8. DUB PROCESS: Mere Assertion: Execution. A substantial constitutional question is not raised by the mere assertion that an execution issued to enforce a judgment is a denial of due process of law and a deprivation of the equal protection of the laws, although it may have been issued as a result of a misconstruction of certain statutes. The constitutional question raised must be substantial, and not merely colorable.
    Appeal from St. Louis City Circuit Court. — Hon. Leo 8. Rassieur, Judge,
    Transferred to st. Louis court of appeals.

      T. J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe for appellant.
    (2) The circuit court had no jurisdiction to issue execution No. 52, and said execution will deprive appellant of his property without due process of law, in violation of both the State and Federal Constitutions. Grignon v. Astor, 34 U. S. 338; Grignon v. Astor, 43 IT. S. 338; Scott v. Toledo, 3G Fed. 385; Tick Wo v. Iiopkins, 148 U. S. 667; Leper v. Texas, 139 U. S.' 462. (2) Though the court may possess jurisdiction of the cause of the subject-matter and of the parties, it is still limited in its modes of procedure and in the extent and character of its judgments. It must act judicially in all things and cannot transcend the power conferred bylaw. Win sor v. McVeigh, 93 U. S. 274; Ex parte Virginia, 100 U. S. 33®. (3) Fees of commissioners and others in partition, ordered taxed as costs, while collectible by execution against the allotments of the several partitioners, are not such general orders or judgments as are contemplated by the statute and do not bear interest. Sec. 7181, R. S. 190®. For a case directly in point see Jones v. Trust Co., 105 S. W. 328. For cases on the allowance of interest, see, also: Bradley & Co. v. Asher, 65 Mo. App. 589; Adler & Sons Clothing Co. v. Corl, 155 Mo. 149; St. L. Rv. v. Knapp, Stout & Co., 160* Mo. 396; State v. Slaughter, 70 Mo. 484; State v. Boogher, 71 Mo. 631.

      Marion C. Early for respondent.
    (2) The case involves no constitutional question, and should be sent to the St. Louis Court of Appeals. Woody v. Railroad, 273 Mo. 547; Stegall v. American Pigment Co., 2G3 Mo. 719; Carson v. Railroad, 184 S. W." 1039; Donoho v. Railroad, 184 S. W. 1149; Berry-man v. Maryland Motor, 2:97 S. W. 850; Kemper Mills v. Railroad, 178 S. W. 503; Hulett v. Railroad, 145 Mo. •35; Hilgert v. Barber Asphalt Co., 173 Mo. 319; Kansas City v. Baird, 163 Mo. 196. (2) Under Missouri statutes allowances to special commissioners in partition suits bear interest at six per cent, per annum from decree until payment. McManus v. Burrows, 191 Mo. App. 594; McManus v. Burrows, 246 Mo. 438; Martin v. St. Louis, 139 Mo. 246; National Bank v. Mechanics Bank, 94 U. S. 437; Henderson v. Lowell, 86 Ky. 668; Devlin v. Mayor, 131 N. Y. 123.
   GOODE, J.

The appellant took this appeal from an order of the court below, overruling a motion to recall and quash an execution issued on the judgment in the case of Thomas Ward McManus (the appellant) against Camilla S. W. Burrows and Matthew Park, Trustee. Several executions were issued at different times on that judgment. The one involved in the present appeal is for interest claimed on an allowance of fees to the commissioners appointed to partition property among the parties to the aforesaid cause, in accordance with the judgment therein given.

The judgment found that McManus was entitled to a half interest in the property, Camilla S. W. Burrows to a one-sixth interest, Matthew Park, Trustee, to a one-third interest, and ordered a division accordingly. Henry C. Grenner, Charles Z. Trembley and Prank H. Gerhart were appointed commissioners, and for their services, after their report had been filed, the court, on June 23', 1908, in confirming- the report and rendering a final decree, allowed each of them five thousand dollars. Other items of costs, including fees of attorneys, stenographer’s charges, those of a surveyor, and fees of the marshal and clerk of the court, etc., were allowed by the judgment and as part of it. Every item of the costs appears to have been paid in full by the partiés to the litigation, according to their respective liabilities, except the interest on that portion of the compensaton of the commissioners adjudged against appellant McManus. On December 24, 1913, McManus paid half of the other costs and half of the face of the amount awarded the three commissioners, bnt refused to pay the interest claimed to have accrued since the rendition of the judgment on the other half, and pending' an appeal taken by him from an order overruling a motion to quash a prior execution, viz., No. 94. Grenner and Gerhart are the claimants of interest; Trembley, the other commissioner, having acknowledged satisfaction in full of the allowance to him. A previous execution (No. 114) to test the right to interest, was issued at the instance of Grenner, which was followed by a motion to quash by McManus. The motion having "been overruled, he appealed to the St. Louis Court of Appeals, where the ruling of the circuit court was sustained and the applicable statutes construed to require interest on the allowances to the commissioners. [191 Mo. App. 594.] Subsequently the execution involved herein (No. 52) was issued at'the instance of Gerhart, to collect the interest, and McManus filed a motion to quash it too, assigning, among other reasons for the motion, that the enforcement of the execution would violate the Fourteenth Amendment to the Constitution of the United States, by depriving him of his property without due process of law and by denying him the equal protection of the law; would violate Section 30' of Article 2 of the Constitution of Missouri, by depriving him of his property without due process; and for the further reason that the circuit court was without •jurisdiction to allow the commissioners five thous- and dollars for their services, and in so doing violated said constitutional provisions and also Section. 2578, Revised Statutes 1909, of this State. The motion having been overruled, an appeal was granted to this court.

The question for first attention is whether the jurisdiction of the appeal is here or in the St. Louis Court of Appeals; and this question depends on whether. or not to rule on the motion to quash the execution, it was necessary to construe either the National or the State Constitution to ascertain whether the collection, by execution, of interest on the allowances to the commissioners, would deprive appellant of his property without due process of law or deny him the equal protection of the law. That the judgment for compensation to the commissioners was unconstitutional, has not been urged; neither has the validity of the statutes authorizing such a judgment been denied. [R. S. 1909, sees. 2279, 2588.] The contention is that to enforce payment of the fees allowed would violate said constitutional provisions. But we think the question of the right to interest,' although asserted to require, in order to answer it,- a construction of the Federal and the State Constitutions, in truth requires no more than the construction of some sections of our statutes. ' Interest is never allowed at common law in the absence of a stipulation or a commercial usage, to pay it; so the position of appellant is this: The remuneration allowed commissioners is part of the costs of an action of partition, to be taxed proportionally against the parties, like the other costs, and court costs bear no interest, as neither the common law nor any statute provides they shall. For respondent it is contended the statutes direct a judgment for costs in partition cases against the parties according to their respective interests in the property to be divided, expressly authorize an execution for the costs tljus adjudged, and money due on any judgment or order of court draws interest from the date of rendition. The sections of the statutes cited by the parties in support of their respective contentions, are 2279, 2578, the first of which provides for a judgment and execution for costs in partition cases, and the second for an allowance of compensation to commissioners; also 7181, which declares interest shall be allowed on all money due. on any judgment or order of court, from its' date. It is plain from the statement of the theories of the parties, that the solution of their controversy turns exclusively on the meaning of the statutes supra, considered in connection with the doctrine of the common law refusing interest as a general rule. It should be noted that the judgment of partition in this case said nothing about interest on the fees allowed the commissioners, or on any of the other items of costs. A judgment for the costs in such cases is expressly directed by Section 22(19, and whether commissioners’ allowances are costs, and, if so, whether they bear interest, are in no sense constitutional questions, but simply questions of the construction of pertinent statutes; namely, those cited. The conclusion that interest runs on allowances is derived, as said above, by construing Section 2279, which authorizes judgment and execution for costs in suits to partition, with Section 7181, which provides for interest on all money due on judgments and orders; and the position of appellant comes to this: that the adoption by the circuit court of the construction in favor of interest, as shown in the overruling’ of his motion to quash the execution, deprives him of his property without due process of law and denies him the equal protection of the law. If the circuit court misconstrued the statutes and its ruling is permitted to stand, plaintiff will be deprived of his property when he ought not to be, but it by no means follows that he will be deprived of it without due process of law or in denial of the equal protection of the law. Tie mil be deprived of it by an erroneous judicial decision, given after he had notice and his day in court. Such a mistake has been held time and again to constitute no denial of due process or of the equal protection of the law. [Stegall v. Chemical Co., 263 Mo. 719.] The Supreme Court of the United States, in passing- upon the question of Federal jurisdiction of a cause, removed or appealed from a stata court, on the ground, that the due-process and equal-protection clauses of the Fourteenth Amendment must be construed to determine the case, has declared often, that if the decision turned on the interpretation of a state statute, which was not in itself attacked as unconstitutional, those clauses of the Fourteenth Amendment were not involved and the Federal court was without jurisdiction. [Starin v. New York, 115 U. S. 248, 257; Central Land Co. v. Laidley, 150 U. S. 103; Knop v. Coal Co., 211 U. S. 485.] The precise point was passed upon by this court in a case decided by the St. Louis Court of Appeals and remanded to the circuit court for a second trial; whereupon an answer was filed with an averment that the construction of several statutes by the Court of Appeals violated the due-process clauses of the National and State Constitutions, and the equal-protection clause of the former. It was held no constitutional question was raised, as the Courts of Appeals have as much right to construe statutes as this court and their construction is as final in cases within their jurisdiction; that if the answer conferred jurisdiction, all a defendant need do to burden this court with all kinds of cases would be to plead in his answer that certain statutes had been construed by the Court of Appeals in violation of a constitutional provision. [Sublette v. Railroad, 198 Mo. 190.] Applying the principle of that case to this one, it follows that if the _ circuit court erred in holding, under the relevant statutes, the commissioners’ allowances bear interest, its decision cannot be reviewed here.

Appellant contends the collection of interest by execution will violate the aforesaid constitutional provisions. In one appeal from the judgment in the present case, tliis court decided the commissioners were entitled to execution for the fees adjudged to them, though the opinion said nothing about interest running on the fees, as the question was not before the court. [McManus v. Price, 246 Mo. 438.] But the point in hand is as to the constitutional validity of the process issued for the interest, and touching that point we remark that executions have been the process for enforcing judgments time out of mind. Due process of law means, among other things, process according to established usage; hence an execution was due process wherewith to collect the interest; the right to interest depending, as we have' said, on the meaning of the statutes, but on no constitutional clause or provision. Numerous opinions, some of'them amounting to treatises, have expounded: the meaning of due process, and in a leading opinion on the subject, the Supreme Court of the United States said that when a particular process was asserted not to be due process, then to determine the question “we minst examine the Constitution itself to -see whether this process be in conflict with any of its provisions. If found not to be so, we must look to those settled usages and modes of' proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.” [Murray v. Hoboken Land Co., 18 How. (U. S.) 272, 277.] In the case just cited the denial of due process was rested on the fact of the property of a Collector of Customs having been seized and sold by a marshal of the United States, pursuant to a distress warrant issued by the Solicitor of the Treasury, instead of by virtue of an execution based on a judgment given against the Collector after notice and a hearing. This próposition was rejected by the Supreme Court because the distress warrant had been issued pursuant to an Act of Congress; an act in conformity to the usage prevailing for centuries to collect balances due from defaulting revenue officers.

One purpose of the guaranties of.due process and equal protection of the law is, of course, to protect persons from arbitrary acts of officials, dictated by their passions, or individual opinions of what] is right, but unsanctioned by statute or the common law. It cannot be conceded that a substantial constitutional question is raised by asserting that an execution issued to enforce a judgment, is not due process or is a denial of equal protection, even admitting it was issued as a result of a misconstruction of certain statutes.

A rule of the Federal courts for determining whether they have jurisdiction of a case by reason of the Constituiou being involved, is that if the- question has been decided theretofore, it cannot be raised again for jurisdictional purposes. [State of Kansas v. Bradley, 26 Feel. 289, 290; Montana Ore-Purchasing Co. v. Mining Co., 85 Fed. 867.] The rule of this court is the same. [Dickey v. Holmes, 208 Mo. 664.] But it does not follow that every averment of the violation of some constitutional right will confer jurisdiction, merely because the question raised has not been adjudicated. There is another requirement about which this court and the Federal courts agree; and it is that the question raised, though never previously decided, must be substantial and not merely colorable. [Newburyport Water Co. v. Newburyport, 193 U. S. 561; Williams, Jur. Fed. Courts, p. 61; Carson; v. Railroad, 184 S. W. 1039.] In the case last cited this court well said: ‘‘ There must at least be some substance to the constitutional question before it possesses vitality to. force jurisdiction here.” That remark was mlade after the statement that all the constitutional questions raised in the case had been determined prior to the appeal except one, concerning which the court said there was no such substance in it as would confer jurisdiction upon this court. [See. too, Stegall v. Chemical Co., supra.] A particularly apposite case is Woody v. Railroad, 173 Mo. 547, wherein the defendant contended a judgment adjudging costs against it was a deprivation of property without due process. In disposing of the point the court said the defendant had been brought before the court below by a summons duly served, its pleas were filed and heard and the claim that the costs were improperly adjudged raised no constitutional point.

Under the foregoing authoiities the present appeal must be transferred to the St. Louis Court of Appeals.

All concur, except Graves, J., who dissents.