source: Caselaw Access Project

author: GANTT, J. VALLIANT, J.

license: Public Domain

text:
    THE STATE ex rel. CITY OF COLUMBIA v. WILDER, Auditor.
    In Banc,
    June 1, 1906.
    1. City Indebtedness: Excess of Five Per Cent. A debt sought to be incurred by a city by the issuance of bonds to construct sewers is invalid if the entire indebtedness of the city, including bonds issued for the construction of waterworks and electric light plants, together with all other indebtedness, already exceeds five per cent of the assessed valuation of all property within the city. [Brace, C. J., and Valiiant and Lamm, JJ., dissenting.]
    2. —;-: -: Constitutional Provisions: Waterworks. Sec- ■ tion 12 of article 10 of the Constitution provides that no indebtedness of any city shall “be allowed to be incurred to an amount including existing indebtedness in the aggregate exceeding five per centum of the value of taxable property therein,” and by an amendment thereto adopted in 1902 it was provided that cities having between 2,000 and 30,000 inhabitants may “be allowed to become indebted in a larger amount than specified in section 12 of article 10 of the Constitution, not exceeding" an additional five per centum on the value of the taxable property, for the purpose of purchasing or constructing waterworks, electric or other light plants, to he owned exclusively by the city.” Held, first, that section 12 and the amendment, being in pari materia, must he read together; second, when read together, they mean that in no case can the city increase its indebtedness for any purposes except those expressed in the amendment, when its “existing indebtedness,” for whatever purposes contracted, already exceeds five per cent; and, third, they do not mean that a city which has already incurred an indebtedness in excess of five per cent, including its water and light bonds, as well as all other debts, can thereafter issue bonds for sewer purposes, although the indebtedness, excluding the water and light bonds, and adding the proposed sewer bonds, would not equal five per cent.

      Held, by Valliant, J., in a dissenting opinion, in which Brace, C. J., and Lamm, J., concur, first, that the dominant purpose of the amendment was to increase the taxing power of the cities embraced within its terms to enable them to own their waterworks and lighting plants; second, it being conceded that if the sewer bonds had been issued prior to the water and light bonds the city’s power to increase its indebtedness for other purposes would not have been exhausted but the sewer bonds would have been legal, and the water and light bonds thereafter issued would also have been legal, the accidental fact that the water and light bonds were issued first will not deprive the city of the power to increase its indebtedness for other purposes, for to do that would be to permit an unimportant accidental fact to defeat the main purpose of the amendment; and, third, in determining the right of the city to issue the sewer bonds, the bonds already issued for water and light purposes should not be counted as a part of the city’s “existing indebtedness.”
    Mandamus.
    Writ denied.

      W. H. Rothwell) II. D. Murry and Silver & Brown for relator.
    (1) The proposed bond issue of $10,000, together with the $30,700, the present indebtedness of the city, exclusive of the water and light bonds, being within the five per cent limit authorized by section 12, and the $110,000, the present indebtedness of the city for water and light purposes, being within the additional five per cent limit expressly authorized by section 12a, it is therefore clear that the city has the power and authority under and by virtue of section 12, article 10, of the Constitution to issue the bonds in controversy. (2) While it is true that municipal corporations have only such powers as are either expressly granted to them or such as are necessarily implied, and that grants of power are strictly construed, so as not to extend them beyond the purpose of the Legislature, yet, as said in Bank v. How, 56 Mo. 1. c. 59, ‘ ‘ The construction must not be so strict or technical as to defeat the evident objects and purposes of its creation.”

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for respondent.
    (1) A city may become indebted in excess of its yearly income to an amount of five per cent of the value of the taxable property therein. This five per cent the Constitution specially provides shall include existing indebtedness. The amendment to the Constitution of 1902, allows a city to exceed its annual indebtedness five per cent for a special purpose, to-wit, in order to purchase a water and light plant, and to issue bonds in payment therefor- This was held to be the object, and the sole object, of said provision in a recent decision of this court. State ex rel. v. Allen, 183 Mo. 282. As the existing indebtedness, $140,700, is already in excess of said five per cent, relator cannot further increase its said indebtedness. This 1902 amendment was not enacted for the purpose of giving authority to a city to construct sewers, lay out parks, or do any of the many needed and useful improvements connected with our modern cities. But it specially authorizes a city to increase its indebtedness five per cent “for the purpose of purchasing or constructing water works, electric ox-other light plants, to he used exclusively by the city so purchasing or constructing the same.” Laws 1905, p. 325. (2) As there is no express authority for the issuance of the bonds in question, respondent insists that relator is not entitled to a peremptory writ for that reason. On the subject of the implied powers of a municipal corporation to increase its indebtedness, the authorities agree that a doubt, if there be a doubt, must be resolved against the exercise of such implied power. 1 Dill., Mun. Corp., sec. 89; City ex rel. v. Eddy, 123 Mo. 557; 2 Smith, Mun. Corp., secs. 861-2-3.
   GANTT, J.

This is an original proceeding in this court to obtain a peremptory writ of mandamus compelling the respondent, the State Auditor, to register certain sewer bonds to the amount of $10,000, which the city of Columbia has presented to him for registration, and which he has refused to register.

The undisputed facts are that the city of Columbia is a municipal corporation, organized under the general laws of the State as a city of the third class, and has a population of nearly eight thousand. According to the last previous assessment, the assessed valuation of the taxable property in said city amounts to $2,462,-050. At the present time, and at the time of holding a special election, hereinafter referred to, the bonded indebtedness of said city was $140,700'. Of this indebtedness bonds to the amount of $110,000 were issued in payment for water works and electric light plant, which was to be owned by said city. All of said water and light bonds were issued on April 1,1904, except $10,000 worth, which were issued October 2, 1905.

On July 21, 1905, an ordinance of the city was passed and approved having for its purpose the incurring of an additional bonded debt of $10,000 for the purpose of constructing sewers in the said city. The bonds were to mature in fifteen years, payable at the option of tlie city in five years, and to bear not more than five-per cent. The proposition was submitted in due form to a vote of the people at a special election b-eld on August 8, 1905, and received the assent of more than two-thirds of the voters. The city authorities, in accordance with law, afterwards declared by ordinance that said proposition in favor of the issuance of said bonds had been adopted. Thereafter the bonds in question were prepared and presented to the respondent, the State Auditor, and he refused to register them because they were in excess of the power of the city to become indebted, and this proceeding, as already said, is to require him to register the said bonds.

Section 12 of article 10 of the Constitution of Missouri, 1875, provides: “No county, city, town or township, school district or other political corporation or subdivision of the State shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the assent of two thirds of the voters thereof voting at an election to be held for that purpose; nor in cases requiring such assent shall any indebtedness be allowed to be incurred to an amount including existing indebtedness in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the assessment next before the last assessment for state and county purposes, previous to the incurring of such indebtedness: Provided, That with such assent any county may be allowed to become indebted to a larger amount for the erection of a courthouse or jail. And provided further, That any county, city, town, township, school district or other political corporation or subdivision of the State, incurring any indebtedness, requiring the assent of the voters as aforesaid, shall, before or at the time of doing so, provide for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for payment of the principal thereof, within twenty years from the time of contracting the same.” . At the general election held in this State in November, 1902, another section designated as section 12a, was added to the Constitution. Said amendment to the Constitution is as follows: Section 12a; “Any city in this State containing not more than thirty thousand nor less than two thousand inhabitants, may, with the assent of two-thirds of the voters thereof voting at an election to be held for that purpose, be allowed to become indebted in a larger amount than specified in section 12 of article 10 of the Constitution of this State, not exceeding an additional five per centum on the value of the taxable property therein, for the purpose of purchasing or constructing waterworks, electric or other light plants, to be owned exclusively by the city so purchasing or constructing same,” with the same proviso practically as that contained in the original section 12, of article 10 of the Constitution in regard to the providing for annual tax to pay the interest and to constitute a sinking fund for the payment of the principal. [Laws 1901, pp. 268, 269; Laws 1905, pp. 324, 325.]

As the bonds which the Auditor refused to register were not issued for the purpose of constructing water works, electric or other light plant to be owned by the city, they do not fall within the provisions of section 12a. of the Constitution, so that the only question presented is whether the bonded indebtedness to the amount of $110,000, which was contracted in payment of the water and light plant in 1904, is to be included in determining what is the five per cent limit of said city’s indebtedness. It is insisted by the city that it should not be taken into account in determining the amount of its indebtedness at the time the bonds to the amount of $10,000 were voted and issued for the purpose of constructing sewers in the city. Including the $110,000 or bonded indebtedness, the total indebtedness of the city when the bonds which the city now seeks to have registered were voted and issued, was $140’,700', and five per centum on the value of the taxable property in said city, to-wit, $2,462,050, was $123,102.50, so that it is evident that if the $110,000 of bonds constituted a part of the indebtedness of the city within themeaningof sectionl2of article 10 of the Constitution, there was no authority for incurring this additional indebtedness of $10,000, because the five per centum on the assessed value had already been exceeded. But it is insisted by the learned counsel for relator that by excluding the bonds for the $110,-000 from the total indebtedness of $140,700, and adding the $10,000 of the proposed bond issue to the indebtedness incurred previous to the issuing of the $110,000 bonds, this issue of $10,000 of bonds is kept within the five per cent limitation, and the entire bonded indebtedness is within the ten per cent limit provided in section 12a of the Constitution as amended in 1902, and that therefore the city had the right to have these $10,000 bonds registered. And it is argued that if the city had, before it issued this $110,000 of bonds for waterworks and electric light plant, issued this $10,000 of bonds for the purpose of constructing sewers, the $10,000 of bonds thus added to the then pre-existing debt would have made the indebtedness incurred up to that time only $40,700, and it would have been perfectly lawful for the city to have then voted and issued the $110,000 of bonds under the provisions of section 12a of article 10 of the Constitution as amended in 1902, and that therefore the fact that the $110,000 of water bonds were first issued will not deprive the city of the privilege the amendment of 1902 was intended to confer upon it, and hence the $110,000 of bonds is not to be taken into account in estimating the then existing indebtedness. In consideration of these respective contentions on the part of the Auditor and the city, it is obvious, we think, that section 12 of article 10 of the Constitution and section 12a of the amendment thereto in 1902, must be read together, being in pari materia, and the amendment being evidently intended to supplement section 12 of article 10 of the Constitution. Now section 12 of article 10 provides: “Nor in cases requiring such assent shall any indebtedness be allowed to be incurred to an amount, including existing indebtedness, in the aggregate exceeding five per centum of the value of the taxable property therein.” And section 12a by its very terms refers to section 12, and provides that “any city in this State containing not more than 30,000 nor less than 2,000 inhabitants, may, with the assent of two-thirds of the voters thereof voting at an election to be held for that purpose, be allowed to become indebted in a larger amount than specified in section 12 of article 10. of the Constitution of this State, not exceeding an additional five per centum on the value of the taxable property therein, for the purpose of purchasing or constructing waterworks, electric or other light plants, to be owned exclusively by the city.”

This amendment referring as it does to the power of incurring indebtedness as provided in section 12 of article 10, is limited to the restriction specified in section 12 of article 10, save and except that for the specific purpose of acquiring waterworks and electric light plant, the city may incur a debt not exceeding ah additional five per centum on the value of the taxable property therein. And section 12 of article 10 of the Constitution expressly provides that in incurring any indebtedness in any manner or for any purpose for an amount exceeding in any year the income and revenue provided for such year, the indebtedness to be incurred shall not exceed five per cent on the value of the taxable property, including existing indebtedness. That the $110,000 in bonds issued in 1904 were an existing indebtedness at the time the bonds in question were voted and issued there can be no doubt whatever. Nor do we think when the two sections 12 and 12a are read together, there can be any less doubt that the additional five per cent on the taxable property includes the then existing indebtedness, and whether the debt is to be incurred under section 12 of article 10, or section 12a of the same article, the amount of existing indebtedness must always be taken into account. The Constitution makes no exception as to the character of the exiisting indebtedness.

It is urged that the accidental fact that the city had already exceeded the five per cent limit before it undertook to incur this last $10,000 for bonds, ought not to operate against it since it could have avoided this collision with the Constitution by having first issued the sewer bonds and then voted the $110,000 for waterworks and electric bonds. But as we regard it, the question is simply one of incurring a debt by the city in view of the constitutional restrictions imposed upon it, and we can find nowhere in section 12 or 12a or any other part of the Constitution any authority for making a discrimination in the character of the debts which make up the total of the municipality’s existing indebtedness when it seeks to incur an additional indebtedness. On the contrary as we read the Constitution the existing indebtedness includes any and all legal debts of the city. It was attempted to make such a distinction in Potter v. Douglas County, 87 Mo. 239, and it was made in that case, but that ease was repudiated in Barnard & Co. v. Knox County, 105 Mo. l. c. 391, in which it was held that the strong and comprehensive language of section 12 of article 10 of the Constitution admits of no distinction between debts created by law. And we add it does not permit the character of a particular indebtedness to exclude it from constituting a part of the existing indebtedness which must be included in estimating the five per cent limit.

We cannot assent to the proposition that the sole purpose of the amendment was to confer power to tax. On the contrary it was designed just as section 12 of article 10 of the Constitution was, to restrict the power of incurring’ indebtedness and it only extended the power to contract a new indebtedness over and above existing indebtedness to an additional five per cent for a specific purpose. Obviously tbe first five per cent, even in that case, must include the existing indebtedness and so must also the ten per cent include that indebtedness in estimating the limit. This, we take it, is conceded by all parties. As the debt sought to be incurred by the issuance of the bonds now sought to be registered is not for the acquisition of waterworks or electric or other light plant to be owned exclusively by the city, section 12a of article 10 is out of the case, and the sole question is whether the city had already exceeded the five per cent limit when it undertook to incur this debt evidenced by its bonds to the amount of $10,000 for sewers, and that it had, we think, is beyond the peradventure of a doubt. In estimating its existing indebtedness, the city was bound to include the $110,-000 of valid bonds already issued as a part of said indebtedness, and when this is done it is clear that the proposed indebtedness will exceed the constitutional limit of five per cent and is unauthorized and therefore void, and the State Auditor properly refused to register the same, and accordingly the writ of mandamus must be and is denied.

Burgess, Fox and Graves, JJ., concur; Brace, C. J., Valliant and Lamm, JJ., dissent.

DISSENTING OPINION.

VALLIANT, J.

The city of Columbia sues for a writ of mandamus to require the State Auditor to register certain bonds which the city purposes to issue.

This is a city of the third class, having a taxable wealth, according to the assessment next before the last assessment, of $2,462,052. The indebtedness of the city already is $140,700, of which $110,000 is the amount of the city’s bonded debt incurred in 1904 for the purpose of purchasing and constructing waterworks and electric light plant. On July 1, 1905, an ordinance of the city was passed and approved having for its purpose the incurring of an additional bonded debt of $10,000 for •the purpose of constructing sewers in the city.

The bonds were to mature in fifteen years payable at the option of the city in five years and to bear not more than five per cent interest. The proposition was submitted in due form to a vote of the people and received the assent of more than two thirds of the voters. Thereafter all proper proceedings were had by the city council and other officers, the bonds were prepared, signed and presented to the State Auditor to be registered, as required by section 5167, Revised Statutes 1899. Without going through the details it is sufficient to say that the record shows that all the requirements of the law to make these proposed bonds legal and valid have been complied with and they are legal and valid unless their amount added to the amount of the indebtedness the city already owes would make a sum beyond the limit the city is authorized to go in incurring indebtedness.

Section 12 of article 10 of our Constitution authorizes the city, with the assent of two-thirds of the voters, to. incur indebtedness to the limit of five per cent of the value of its taxable property, but forbids it to go beyond the limit. At the general election in November, 1902. the Constitution in that respect was amended by adding another section, 12a, the beginning of which is:

“Any city in this State containing not more than thirty thousand nor less than two thousand inhabitants, may, with the assent of two-thirds of the voters thereof voting at an election to be held for that purpose, be allowed to become indebted in a larger amount than specified in section twelve of article ten of the Constitution . of this State, not exceeding an additional five per centum on the value of the taxable property therein, for the purpose of constructing waterworks, electric or other light plants, to be owned exclusively by the city,” etc.

In February, 1904, its indebtedness then being $38,-500, the city, availing itself of that amendment to the Constitution, instituted proceedings which resulted in its issuing its bonds to the amount of $110,000, for the purpose of buying and extending the waterworks and electric light plant within its limits, and those bonds are now outstanding, making, with the other indebtedness at the date of the present proceeding, the total debt of the city $140,700, which is in excess of five per cent of the value of the city’s taxable property.

Now it is suggested by the State Auditor that the limit of five per cent prescribed in section 12 of article 10 having been already reached and passed, and the authority given by the amendment of 1902, section 12a, to go beyond the first five per cent limit having been given only for the one purpose therein expressed, it cannot be exercised for any other purpose, and as these proposed bonds are not to be used for the purpose in that amendment expressed, they cannot be issued under that authority.

When we come to construe a clause in the Constitution we must treat it with the same liberality that we treat other written laws; we must not adhere so closely to the letter as to destroy the purpose, the purpose must be ascertained and given effect. [State ex rel. v. McGowan, 138 Mo. 193.] What was the purpose of this amendment? Under the original section 12, five per cent was the limit to cover indebtedness for any and all purposes, but experience having shown that when kept within that limit the cities of this class were unable to own waterworks and lighting plants adequate to their needs, the people amended the Constitution and gave such cities power to increase the tax rate by a levy of five per cent in addition to the five per cent formerly authorized, provided the additional levy was to he used for waterworks and lighting plants. After the adoption of that amendment the city, with the assent of two thirds of its voters, could incur indebtedness to the extent of ten per cent of the value of its taxable wealth, provided five per cent of the ten was to be used for waterworks and light plants- to be owned by the city.

Five per cent of the value of .the taxable property of this city is $123,102.50.

If the city of Columbia had, before it issued its $110,000 bonds for waterworks and lighting plants, taken the action it is now seeking to take and had issued its bonds for $10,000 for the purpose of constructing sewers, the $10,000 added to the then pre-existing debt would have made the total debt of the city $40,700’, or about one-third of the original five per cent limit, and if after the $10,000 sewer bonds had been issued the city had availed itself of the additional five per cent authorized by this amendment and had issued its water and light bonds to the amount that it did issue them, there would be no question of the validity of the sewer; bonds or the water bonds because all the indebtedness added together would be within the extended limits. It is thought, however, that because the waterworks bonds were issued first, that power is exhausted, and that is so if we take the water bonds into this account because counting those bonds the original five per cent limit has been passed and the bonds now to be issued are not for the purpose expressed in the amendment. But we do not think that the accidental fact that the water bonds were issued first will deprive the city of the privilege the amendment of 1902 was intended to confer. The purpose — the main purpose — the only purpose of the amendment of 1902 was to increase the taxing power of the cities embraced in its terms to enable them to own their waterworks and lighting plants; that is what the General Assembly had in mind when it proposed the amendment and it is what the people had in mind when they adopted it. The conferring of taxing power was the dominant thought in the amendment, the order in which the city might incur its obligations was overlooked, was riot thought of, it was of no importance and at most it can now be deemed as an accident of only secondary consideration, yet if we should adopt the strict literal construction contended for by the respondent we would allow the altogether unimportant accidental fact to defeat the main purpose of the amendment. That would be misconstruction; when there is a seeming conflict between the dominant purpose and an unimportant or secondary consideration,, the dominant idea must prevail.

We construe section 12 and 12a of article 10 of the Constitution, taken together, to mean that when the amount of indebtedness that the city may incur under the terms of section 12 is to be estimated, the amount of its indebtedness incurred since the amendment and within the extra five per cent limit of section 12a, incurred “for the purpose of purchasing or constructing waterworks, electric or other light plants, to be owned exclusively by the city so purchasing or constructing the same,” is not to be taken into the estimate.

The city of Columbia has the lawful authority to issue the proposed $10,000 sewer bonds in question, has complied with the requirements of the law in such case made and provided, and is therefore entitled to have the bonds registered as required by section 5167, Revised Statutes 1899.

Brace, G. J., and Lamm, J., concur in this opinion.


author: VALLIANT, J.

text:
    HALEY v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    In Banc,
    June 1, 1906.

    1. NEGLIGENCE: Violation of Ordinance: Common Law Negligence. Following plaintiff’s averments which set forth a supposed ordinance and the facts constituting a breach of its requirements, is another paragraph in which without reference to the ordinance it is said that defendant then and there “negligently and wrongfully ran its train at a great and unlawful speed, to-wit, at a rate of speed greater than six miles an hour and greater than fifteen miles an hour.” At the time of the accident the ordinance pleaded had been repealed. Held, that the second paragraph when taken in connection with what follows describing the situation, states a common law act of negligence, and the petition is not held to state as the only act of negligence a violation of the ordinance.
    2. -: Pleading Several Acts in One Count. Several acts of negligence of the same nature, all of which may be true and either of which or all of which together may have caused the accident, may be pleaded in one count.
    ' 3. -: Speed of Train: Common Law. In the absence of a statute or ordinance on the subject, the question of whether or not a given rate of speed of a train running through a populous city is negligence, is, ordinarily, one of fact, not of law. And the question depends on the surrounding circumstances; a rate that would be entirely safe under some conditions would be recklessly dangerous under others.
    4. -: -: -: Conditions: Nonsuit: Question for Jury. The evidence tended to show that the train, consisting of twenty or more freight cars, propelled by two engines, one in the rear and one in front, came through a curve near the river into a street at a point where the street was so narrow that the train could not pass a wagon therein without striking it, it being a public street in which a wagon of the kind plaintiff was driving was liable to be; that the train was running eighteen or twenty miles an hour, the speed being such that plaintiff did not have reasonable time in which to drive out of danger, and being such as to render it doubtful whether the engineer on the front engine could, by the exercise of ordinary care, have stopped it in time to have avoided the accident after he discovered the danger. Held, that it was the duty of the court to have submitted to the jury whether or not it was negligence to run the train at that rate of speed.
    5. - : -: High Speed: Necessary to Ascend Grade. If the grade was such that the train could not have ascended it without the aid of the momentum to be acquired by a high rate of speed, that fact did not justify the defendant in running its train at such speed, if to do so rendered it liable to kill or cripple people who, without negligence on their part, were liable to be on the street and were therefore to be expected to be there, or if to do so rendered it impossible for the engineer to stop in time to avert such an accident after he should come in view of the danger.
    6. -: High Speed and Not Stopping Train: Inconsistent Averments. A charge that the train was being run at a negligent speed and a charge that the defendant failed to stop the train in time to have avoided the accident after the danger was apparent, are not necessarily inconsistent.
    7. -: Negligent Speed: Impossible to Stop: Wantonness. Although the speed may have been negligent, the defendant is not liable, under what is called the humanitarian doctrine, if the speed was such as to render it impossible for the engineer, by the exercise of ordinary care, to have stopped it in time to have avoided the accident.
    8. -: Contributory: Knowledge of Danger: Question for Jury. The law imposes on the driver of a wagon familiar with the surroundings and who knows he is liable to encounter a train in a narrow street in which the defendant’s tracks are, the duty of exercising a degree of care commensurate with the danger to be expected. But his knowledge does not render it negligence per se for him to drive his wagon on the street. If he uses the care that a man of ordinary prudence under like circumstances and knowing the danger to be apprehended would have exercised, he is entitled to recover for injuries due to the defendant’s negligence. And where he testifies that he stopped and listened before driving onto the narrow street, but heard no train; that when he got onto the street, but before he turned into it, he stopped and looked both ways, but saw no train; that on former occasions he had heard trains whistle at a whistling point, but heard none this time, the question of his contributory negligence is one for the jury.
    Appeal from St. Louis City Circuit Court. — Hon. Franklin Ferriss, Judge.

      Affirmed.

      Martin L. Glardy and Henry G, Herbel for appellant.
    The court erred in sustaining plaintiff’s motion to set aside the nonsuit. McHugh v. Eailroad, 88 S. W. 855; Maher v. Eailroad, 64 Mo. 275; Petty v. Eailroad, 179 Mo. 674; Coatney v. Eailroad, 151 Mo. 35; Bank v. Trust Co., 179 Mo. 660; Ottomeyer v. Pritchett, 178 Mo. 165; McCauley v. Eailroad, 179 Mo. 592; Ledwidge v. Eailroad, 73 S. W. 1009; Sindlinger v. City of Kansas, 126 Mo. 327; Turner v. Eailroad, 74 Mo. 607; Cilbert v. Eailroad, 128 Fed. 533; Fellenz v. Eailroad, 80 S. W. - 49; Culbertson v. Eailroad, 140 Mo. 63; Markowitz v. Eailroad, 85 S. W. 353,-Skiptonv.Eailroad,82Mo.App. 142; Eailroad v. Houston, 95 U. S. 702; Kelsay v. Eailroad, 129 Mo. 372; Eailroad v. Williford, 88 S. W. 180; Sluder v. Eailroad, 189' Mo. 107; Duncan v. Eailroad, 46 Mo. App. 207; Eailroad v. Harbison, 88 S. W. 414.

      Edward, G. Eliot and V. Mott Porter for respondent.
    The action of the court in sustaining plaintiff’s motion to set aside the nonsuit and for new trial was correct and should be affirmed. McPheeters v. Eailroad, 45 Mo. 22; Petty v. Eailroad, 179 Mo. 666; Hill v. Eailroad, 121 Mo. 477; Powell v. Eailroad, 59 Mo. App. 626; O’Connor v. Eailroad, 94 Mo. 150; Hanlon v. Eailroad, 104 Mo. 381; Neier v. Eailroad, 12 Mo. App. 25; Brown v. Eailroad, 50 Mo. 461; Easly v. Eailroad, 113 Mo. 236.

      Note. — Decided in Division One, February 22, 1906; Marshall, J., dissenting, the case was transferred to Court in Banc, and there reargued, and divisional opinion adopted June 1.

   VALLIANT, J.

Defendant has a railroad track extending from the south along the wharf or levee, as it is usually called, turning west into Poplar street, thence along Poplar street west to a distant point in the city. While the plaintiff, on February 12, 1901, was driving a two-horse wagon in Poplar street a locomotive drawing a freight train on defendant’s road struck the wagon, causing the plaintiff to be thrown therefrom and severely injured.

In the petition it is stated that there was at that time a city ordinance forbidding the running of a locomotive or train on a steam railroad in the city at a greater rate of speed than six miles an hour; that this was a steam railroad and that this locomotive and train were running at a speed in excess of that rate. After pleading the ordinance and the facts requisite to constitute a violation of it, the petition goes on to state that the defendant then and there “negligently and wrongfully ran its train ... at a great and unlawful speed, to-wit, at a rate of speed greater than six miles an hour and greater than fifteen miles an hour.” Then follow averments to the effect that the width of defendant’s engine and ears was such that they so occupied, monopolized and obstructed the street that there was not left sufficient space in the street for an ordinary wagon or the wagon plaintiff was driving to pass without being struck by the engine, and under those conditions the defendant so wrongfully and negligently ran its. train as to render it impossible for plaintiff to pass or escape; that it was a long train propelled by a locomotive at the rear end pushing, and another at the front drawing, and that defendant thus so operated the train that the man in charge of the rear engine could not see to the front in time to foresee and avoid collision; that the train was so negligently operated that it was not stopped or arrested as soon as might have been done after the engineer of the front engine discovered the plaintiff on the street and knew or by the exercise of ordinary intelligence would have known that only by prompt stopping of the train could the collision be avoided. The. petition then charges that from those wrongful and negligent acts the accident resulted.

The answer was a general denial and a plea of contributory negligence. Reply, general denial.

The testimony for the plaintiff tended to prove as follows:

Poplar street runs east and west; in that part of it to which our attention is now directed it is narrow. There is a stone curbing on each side marking off the space for sidewalks; the sidewalks are of cinders. The width of the street is twenty féet eight inches from curb to curb. When a train is on the track there is not space between it and the curb on either side for a wagon of ordinary width to pass. Defendant’s track comes from the south along the levee and curves west across a vacant lot into Poplar street. Main street, running north and south, crosses Poplar street. From the west line of the levee to the east line of Main street the distance is 226 feet. Main street there is thirty-eight feet six inches wide. Between Main and the next parallel street west, there is an alley which comes from the north and ends in Poplar street. On the south side of Poplar street opposite the mouth of the alley is a vacant lot. From the east line of this alley to the west line of Main street the distance is 161 feet; so that from the east line of the alley to the west line of the levee the distance is 425 feet six inches. Standing at a point in the center of the alley on the north line of Poplar street looking east one could see an object on the railroad track on the levee 540 or 545 feet distant. From the levee to the alley the track rises in grade one foot nine inches to the one hundred feet, making a total rise in that distance of ten feet eleven and onelialf inches.

Plaintiff was a teamster for the Charter Oak Stove Company. He was driving a two-horse stake wagon, the driver’s seat of which was seven or eight feet above the ground. Pie was going south in the alley; his aim was to go to the Iron Mountain depot, which was south of Poplar street; when he came to Poplar street, knowing that the railroad was there, and that a train was liable to be coming one way or the other, he stopped a few feet from the mouth of the alley and listened for -a train; hearing none he drove out of the alley into the street and looked each way but saw no train; he drove across the railroad track to the south side of the street, turned east, and drove twenty-five or thirty feet when he heard the whistle of the locomotive, and immediately thereafter saw it coming around the curve from the levee into Poplar street; it was coming fast and he realized his danger, he knew there was not space between the track and the curb for his wagon to pass the train; he estimated he was too close to the curb to cross it without swinging out so as to approach it at a more favorable angle and that he could not get into Main street on the south for the same reason, therefore in the-emergency he turned his team to the northeast, aiming to cross the track and escape into Main street on the north. Pie had almost succeeded, his horses and the front part of the wagon had got into Main street, but the locomotive caught his east hind wheel, drew the wagon back into Poplar street, forced it through the side of the old brick house, breaking a hole into the wall, the plaintiff falling into the breach and the bricks of the broken wall falling on him, inflicting such injuries as resulted in the amputation of his left leg. It was a long freight train with a locomotive at each end and was going fifteen or twenty miles an hour. It was necessary for the train to go that fast in order to climb the grade of the curve.

One of plaintiff’s witnesses, a mail carrier, testified that as he was opening a mail box that stood at the southwest corner of Main and Poplar streets he heard the whistle of the locomotive at G-ratiot street which was a few squares south, and he saw a watchman then come out of Ms watchhouse with a white flag in his hand and cross to the north side of the track; witness went into an office which was a few feet from the mail box, delivered some mail there, and when he came ont the watchman was standing where he last saw him holding the flag in his hand; witness turned west on the south-side of Poplar street and saw the plaintiff as he drove out of the alley across the trq-^k and turn east; just then the train came in sight around the curve. The plaintiff testified that he did not see the watchman until about the time he also saw the train. The watchman was waving a white flag. Plaintiff was familiar with the locality — sMd he had been over it a thousand times. On other occasions he had heard the whistle of coming trains at Gratiot street, but did not hear a whistle there at this time; the first he heard of tMs train was the whistle .on the curve as it turned into Poplar street which was after he had driven across the track.

At the close of the plaintiff’s evidence the court gave an instruction that forced the plaintiff to take a nonsuit with leave, but afterwards the court sustained the plaintiff’s motion to set aside the nonsuit, and the . defendant appealed.

I. The first point of difference between appellant and respondent to which our attention is called is M reference to the allegations of negligence in the petition. As appellant construes the petition it charges only two acts of negligence, viz.: a violation of the city ordinance regulating the speed of locomotives, and a failure to use ordinary care" to avoid the injury after the engineer saw the plaintiff in peril. Respondent construes it to charge also common-law negligence as to speed. The.significance of this feature of the plain-tiff’s case is in the fact that there was at the time of this accident no such ordinance as that pleaded in force in that part of the city, and, therefore, unless there was in the petition a charge of common-law negligence in the matter of speed there was no charge of negligent speed at all. The fact is there had been a city ordinance limiting the speed of locomotives to six miles an hour at that place, but it had, before this accident, been repealed. That the plaintiff in the beginning relied, in part at least,, on that ordinance, is shown by the fact that it is specifically pleaded by number, title and legal effect, and is followed by averments of facts constituting a violation of its terms. Before the trial, however, the plaintiff discovered that the ordinance had been repealed and therefore made no offer of it in evidence.

But following the statements in the petition which set forth the supposed ordinance and facts constituting a breach of its requirements is another paragraph in which, without reference to the ordinance, it is said that the defendant then and there “negligently and wrongfully ran its train ... at a great and unlawful speed, to-wit, at a rate of speed greater than six miles an hour and greater than fifteen miles an hour.”

Perhaps if the pleader when he drafted the petition had known that he could place no reliance on the ordinance he would have worded this other clause so as to leave it less liable to doubt that it was intended to state a case of common-law negligence in the matter of the speed of the locomotive. But we think it is sufficient as it is; taken in connection with what follows describing the situation. To say that the defendant negligently rah the train at a speed greater than fifteen miles an hour and in that connection to state the conditions then and there existing, which are such as to suggest the degree of care that ought to be exercised, is equivalent to saying that the running of the train at that rate of speed, under those conditions, was negligence.

This ruling is not inconsistent with what was said in McManamee v. Railroad, 135 Mo. 447; Chitty v. Railroad, 148 Mo. 74; or Cole v. Armour, 154 Mo. 351, to winch we are cited. In those cases it was said that a plaintiff cannot sue on one cause of action and recover on another, and that we say now. And in the McManamee case we said that when the plaintiff makes the general averment that the injury was caused hy the negligence of the defendant, and follows that averment hy averments of specific acts constituting negligence, the petition will he construed to mean that the negligence charged in the general averment was that which was constituted hy the specific acts pleaded and the plaintiff could not recover on proof of other acts constituting negligence not pleaded. That is the law. But in the case at bar the charge of common-law negligence does not rest on an averment of negligence followed by specifications of facts constituting a violation of the ordinance, but, after the pleader has done with the supposed ordinance and the facts alleged constituting its breach, in a new paragraph he charges that the defend- and negligently ran its train at a great and unlawful speed and followed that charge with specifications of facts going to show the negligence without reference to the ordinance; we hold, therefore, that the petition charges common-law negligence.

If the supposed ordinance had been in existence the plaintiff would have had the right to plead it as he did and to plead also that the train was running at a rate of speed which, under the circumstances, amounted to negligence at common law, because the facts stated as constituting a violation of the ordinance might be true and those stated as constituting conmmon-law negligence might also be true. Several acts of negligence of the same nature, and all of which may be true and either of which or all of which together may have caused the accident, may be pleaded in one count.

II. It is the duty of a railroad company running its train through a street of a populous city to use ordinary care to regulate the speed of the train so as not to injure anyone, and failure to use such care is negligence at common law. In the absence of a statute or ordinance on the subject, the question of whether or not a given rate of speed is negligence is, ordinarily, one of fact, not of law, and it depends on the conditions surrounding the act. A rate of speed that would be entirely safe under some conditions would be recklessly dangerous under other conditions. In the case at bar the evidence tended to show that the train was running eighteen or twenty miles an hour. If that was all there was to sustain the charge of negligence in the matter of speed it would not be sufficient to raise the question and the court would not submit it to the jury. But in addition to that fact the evidence tended to show that the train, consisting of twenty or more freight cars, propelled by two engines, one in the rear and one in front, came through the curve into the street at a point where the street was so narrow that the train could not pass the wagon without striking it and .where, it being a public street, a wagon of that kind was liable to be and therefore to be expected, and that the speed at which the train was running was such as that the plaintiff did not have reasonable time in which to drive out of danger and such as to render it doubtful if the engineer on the front engine could, by the exercise of ordinary care, have stopped it in time to have avoided the collision after he discovered the danger. Under those conditions it became the duty of the court to submit to the jury the question whether or not it was negligence to run the train at that rate of speed. If the grade was such that the train could not ascend it without the aid of the momentum to be acquired by a high rate of speed that fact would not justify the defendant in running its train at such speed, if to do so rendered it liable to kill or cripple people who, without negligence on their part, were liable to be on the street, or if to do so rendered it impossible for the engineer to stop in time to avert such an accident after he should come in slew of the danger. In such case there should be a watchman or watchmen stationed and the engineer should wait until the watchman signaled him to come and the watchman should be sure the street was clear before he gave the signal.

The petition charged that the defendant was negligent in the matter of speed and it also charged that the defendant negligentlyfailed to stop the train in time to avoid the collision after the danger was apparent; These two charges are not necessarily inconsistent, because they might both be true, that is, the train might have been moving at a rate of speed that under the circumstances was negligent and yet it might be that the engineer could have stopped it in time to have avoided the accident by the use of ordinary care. But the defendant would not be liable, under what we call the humanitarian doctrine, if the speed of the train was such as to render it impossible for the engineer by the exercise of ordinary care to have stopped it in time, although the speed may have been negligent. Therefore, whilst it is negligence to run a train into a place where danger of collision is to be expected at such a rate of speed that it could not be quickly stopped on appearance of danger, still it cannot be said that the defendant is liable for failing to stop the train after discovering the peril if in fact the speed was such that the engineer could not stop it.

Appellant insists that the evidence shows that the respondent was guilty of contributory negligence. Respondent was familiar with the locality; he said that he had been there a thousand times. That may have been a hyperbole, but it justifies the conclusion that he knew he was liable to encounter a train in that street and that the street was so narrow he could not pass a train with his wagon; under those circumstances the law imposed on him the duty of exercising a degree of care commensúrate with the danger to he expected. But knowledge of the danger did not render it negligence per se for respondent to drive his wagon in the street. There are many streets in a great city in which driving in any kind of a vehicle is attended with well-known danger, yet that fact does not place one who attempts to do so entirely beyond redress if he is injured by the negligence of another while he himself is using the care that 'the dangerous conditions demand. Did this plaintiff in driving into that street exercise that degree of care that a man of ordinary prudence under like circimstances and knowing the danger that was to be apprehended, would have exercised?

Before driving out of the alley, he said, he stopped and listened for a train but heard none. He said that on the east side of the alley was a board fence nine feet high. That fence, however, would seemingly not have obstructed his east view if his estimate of its height and that of the driver’s seat on the wagon was correct. But he testified that when he drove out of the alley he looked each way for a train and none was in sight, that then he drove in a south-east direction across the railroad track to the south side of the street to a point twenty-five or thirty feet east of the alley, then he heard the whistle and immediately thereafter the engine came in sight coming around the curve into the street. He said he was then too close to the curbstone to cross it without first swinging his wagon out and then turning in and he could not turn south into Main street for the same reason, therefore in the emergency he decided that his only way of escape was into Main street on the north, and this he attempted with all his might but unfortunately did not entirely succeed.

Gratiot street is -several squares south of Poplar street; that is a whistling point for trains coming as this was. Plaintiff testified that on former occasions he had heard the whistle of trains at Gratiot street but that he heard none there on this occasion. The mail carrier testified that he heard the whistle of this train at Gratiot street and that when the whistle sounded the watchman came out of Ms watch-house, which was at the south sidewalk of Poplar street a few feet east of Main street, and crossed over to the north side of the track waiving a white flag and that he was there when the plaintiff drove out of the alley. Plaintiff testified that he did not see the watchman until after he had driven across the street. There was a vacant lot across the street into which the plaintiff might have driven if he had seen the train when he first emerged from the alley, but after he had' driven to the south side of the street and to a point twenty-five or thirty feet east of the alley he could not have reached the vacant lot without turning Ms wagon around, and that he said he could not do so quickly as he could drive northeast into Main street.

The trial court could not under this evidence have said as a matter of law that the plaintiff was guilty of contributory negligence. Whether or not he was was a question for the jury. The trial court was right in setting aside the nonsuit. The judgment is affirmed.

Brace, G. J., Gantt and Lamm, JJ.,concur •,Burgess and Fox, JJ., concur in the result; Graves, J., dissents.


author: GANTT, J.

text:
    THE STATE ex rel. CLARKE v. WILDER, Auditor.
    In Banc,
    June 1, 1906.
    1. COURT COSTS: When Taxed. No costs can be taxed In any court except sucb as the statute in terms allows.
    2. -: Reason Given by Auditor: insufficient Pleading: Mandamus. Even if the State Auditor in his return to the alternative writ of mandamus gives an insufficient reason for not paying the fee bill in a criminal case, if he was justified in not allowing such fees because the statutes do not allow them to be charged against the State, the writ of mandamus compelling him to pay them cannot go.
    3. -: Imprisonment in Penitentiary: Sole Punishment. Where imprisonment in the penitentiary is not the sole punishment that may be inflicted upon a boy under sixteen years of age charged with murder in the second degree, the State is not liable for costs upon his acquittal.
    4. -: -: -: Juvenile Court. The provision found in the Juvenile Court act for taxing costs relates only to the costs accruing in proceedings in regard to “neglected” children, and has no application to the payment of costs incurred in the prosecution of “delinquent” children. The payment of costs in prosecutions against delinquent children is determined by the general statutes in force before and since the passage of the Juvenile Court act.
    5. -: Juvenile Court Act: Consistent Statute. Repeals by implication are not favored, and a later statute will not repeal a former one by implication unless they are irreconcilably inconsistent, and it appears the General Assembly intended the later act to take the place of the former. There is no irreconcilable conflict between the Juvenile Court act and the general statutes as to the trial and punishment of “delinquent” children. On the contrary, it is apparent from the face of that act that it is intended to preserve the procedure and general statutes in regard to the prosecution of delinquent minors under sixteen just as they were before, with certain exceptions, which do not include the matter of payment of costs.
    Mandamus.
    Peremptory writ denied.

      William Zachrits and Johnson, Howls, Marlatt & Halves for relator.
    (1) The Auditor’s refusal to draw his warrant for the payment of the costs involved in this suit was based wholly upon the view that under the law all costs accruing in the juvenile court should be paid by the city of St. Louis. There is no controversy about the facts. Such being the ease, if the costs are propprly chargeable against the State, the Auditor’s duty to allow the cost bill and draw his warrant upon the State Treasurer is purely ministerial and mandamus is a proper remedy to enforce the performance of such duty. State ex rel. v. Gibson, 184 Mo. 507. (2) The defendant in the cause in which these costs accrued was charged with and acquitted of an offense punishable’ solely by imprisonment in the penitentiary. Under the general statutes of the State governing criminal costs prior to the enactment of the Juvenile Court act, there was no question that the costs in such cases were payable by the State.’ R. S. 1899, sec. 2831. (3) The Juvenile Court act contains express provision for the payment of costs in proceedings against or concerning “neglected” children, but nowhere provides for the payment of costs in trials of “delinquent” children. Laws, 1903, p. 213-217. (4) Section 2831, Revised Statutes 1899, which provides that where a defendant is acquitted of an offense punishable solely with imprisonment in the penitentiary the State shall pay the costs, is not inconsistent or in conflict with any of the provisions of the Juvenile Court act and is not repealed, either expressly or by implication, by the Juvenile Court act. (5) The right to recover costs is statutory and “such right can have no existence unless the statute authorizing the item or items can be directly pointed out.” Statutes allowing costs are strictly construed. The Juvenile Court act contains no provisions for the payment of costs in cases against “delinquent” children, and no liability for such costs can be read into the act by implication.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for respondent.
    (1) It is a well-established principle that costs can not be recovered except in cases where the statute specially provides for same. State ex rel. v. Seibert, 130 Mo. 217. By reading the statute which created the juvenile court, and the interpretation thereof in Ex! parte Loving, 178 Mo. 194, it will be seen that there is no provision in said act for the payment of costs hy the State. Laws 1903, pp. 213-217. In sections 5 and 12 it is distinctly provided that certain costs shall he paid hy the county, or city, in which said court is situated. In no place is there any provision for the payment of fees to any one out of the State Treasury. This law establishes such courts in different counties, or cities, having a population of 150,000'; hence, it is a law for the benefit of the larger cities and counties of our State. Such benefit is recognized in the Loving case, supra; and its necessity to a large city or county was also recognized by the General Assembly of 1903. It is but reasonable, therefore, to infer that the General Assembly intended that the county or city which derived the benefit from such court should pay the expenses incident to its operation. (2) A portion of relator’s brief is devoted to an argument to the effect that the city of St. Louis is not liable for the costs here in controversy. Even admitting that the city is not liable, that does not necessarily fix liability for same on the State. It frequently happens in criminal, as well as civil, cases that the court officers receive no compensation for time and money expended by them. The fact that the county or city or municipal township or some other body can not be made to pay such fees does not make the State liable therefor.
   GANTT, J.

The petition of Patrick H. Clarke, sheriff of the city of St. Louis, was filed in this court on the — day of October, 1905, in which he prayed for an alternative writ of mandamus against William W. Wilder, State Auditor, to compel the drawing of a warrant upon the State Treasurer in payment of certain criminal costs hereinafter referred to. On the 20th of October, 1905, the alternative writ was issued from this court returnable to the April term. To this alternative writ the. State Auditor,' acting through the Attorney-General, filed a demurrer on April 10, 1906, and the cause is for adjudication upon the petition as set out in the alternative writ and the demurrer thereto.

The petition alleges that Patrick H. Clarke was, at all times therein referred to, the sheriff of the city of St. Louis; that William W. Wilder was, at all said times, the Auditor of the State of Missouri; that on the 2nd day of December, 1904, an information was filed in the circuit court of the city of St. Louis, charging one John Meier with the offense of murder in the second degree committed in the city of St. Louis; that said John Meier was arrested upon a warrant issued under such information; that he was a minor under sixteen years of age, and that, in pursuance of what is known as the “Juvenile Court act” he was arraigned in the juvenile court of the city of St. Louis, Missouri, pleaded not guilty, was tried by the jury and was acquitted. The petition further alleged that for his services in said cause, the sheriff of the city of St. Louis became entitled to fees amounting to $24.90; that the clerk of the circuit court of the city of St. Louis became entitled to fees amounting to $13.50, and that certain other fees were taxed as costs, amounting to $14.50, making the total costs in said cause $52.90; all of which costs were duly taxed in the cause against the State of Missouri; that thereupon a fee bill was duly made out according to law embracing the foregoing costs and, being duly certified by the judge of the juvenile court, circuit attorney and by the circuit clerk, this fee bill was transmitted to the Auditor with the request that he draw his warrant upon the State Treasurer in payment thereof. The petition then alleges that the State Auditor refused to allow said fee bill as a charge against the State of Missouri and refused to draw his warrant on the State Treasurer in payment thereof; “that the said refusal of the State Auditor to allow said fee bill and to draw his warrant in payment of the same upon the State Treasurer was expressly placed by said State Auditor upon the ground that he believed that under the provisions of said Juvenile Court act all fees accruing in cases pending in said juvenile court in said city of St. Louis are chargeable solely against the city of St. Louis and not against the State of Missouri, and the said refusal of the State Auditor was not based upon any contention that the services charged for in said fee bill were not rendered, nor upon any contention that said fee bill was not duly and properly made out and certified, and not upon any contention that any of the facts herein set out were untrue, but that the said refusal of said State Auditor was based solely upon the ground that said fees, under the foregoing facts, should be paid by the city of St. Louis and not by the State of Missouri.”' The petition further alleged that there were sufficient funds in the State Treasury appropriated to the payment of criminal costs to pay said costs.

The sole question arising from the facts alleged by the relator and admitted by the State Auditor, is whether the State is liable for the costs claimed by the relator. For many years this court, in obedience to strict statutory provisions, has sedulously maintained that no costs can be taxed except such as the law in terms allows. [Shed v. Railroad, 67 Mo. 687; Crouch v. Plummer, 17 Mo. 420; State ex rel. v. Hill, 72 Mo. 512; Williams v. Chariton County, 85 Mo. 646.]

Section 2831, Revised Statutes 1899, provides : “In all capital cases, and those in which imprisonment in the penitentiary is the sole punishment for the offense, if the defendant is acquitted, the costs shall be paid by the State; and .in all other trials on indictments or information, if the defendant is acquitted, the costs shall be paid by the county in which the indictment was found or information filed, except when the prosecutor shall be adjudged to pay them, or it shall be otherwise provided by law.” Section 2381 provides: “Whenever any person shall be convicted of any felony committed while under sixteen years of age, he shall be sentenced to confinement in the reformatory school for a period of one year or over, or until he shall become twenty-one years of age, or to imprisonment in the county jail not exceeding one year, instead of imprisonment in the penitentiary, as prescribed by the preceding provisions of this law.” By section 1817, Revised Statutes 1899, it is provided that “those convicted of murder in the second degree shall be punished by imprisonment in the penitentiary not less than ten years.” It being alleged and admitted that John Meier was charged with murder in the second degree and was a minor not sixteen years of age, it is ■clear that imprisonment in the penitentiary was not the sole punishment provided for the offense with which he was charged, but that by virtue of section 2381, the punishment provided in his case, had he been found guilty, was confinement in the reformatory school for a period of one year or over, or until he had become twenty-one years of age, or imprisonment in the ■county jail not exceeding one year instead of imprisonment in the penitentiary, as prescribed by section 1817 for persons over the age of sixteen who should be convicted of murder in the second degree. Reading sections 2381 and 2831 together, it cannot be said that imprisonment in the penitentiary is the sole punishment for the offense of which said Meier was acquitted, and therefore, independent of the Juvenile Court act (Laws 1903, p. 213), which was passed and approved March 23, 1903, it seems clear to us that the State was not liable for the relator’s fees which he earned in the prosecution of that cause. It is true it is alleged that “the refusal of the State Auditor to allow such fee bill and ■draw his warrant in payment of the same on the State Treasurer in payment thereof, was expressly placed by the State Auditor upon the ground that he believed that under the provisions of said Juvenile Court act, fees accruing in cases pending in said juvenile court in said City of St. Louis, were chargeable solely against the city of St. Louis and not against the State of Missouri,” but even if the State Auditor gave an insufficient reason for • not allowing said fees against the State, if he was justified in not allowing said fees because the statutes of this State did not authorize him to allow the same, the writ of mandamus cannot go.

A careful analysis of the Juvenile Court act has led us to the conclusion that the provisions for the taxing of costs found in that act relate only to the costs accruing in proceedings in regard to “neglected” children, and has no application to the payment of the costs incurred in the prosecution of “delinquent” children. Section 3 of the act provides: ‘‘ The practice and procedure prescribed by law for the conduct of criminal cases, so far as the same may be applicable and when herein not otherwise provided, shall cover all proceedings under this act. In all trials under this act, any person interested therein may demand a trial by jury,” and section 8 of said act provides that when a child under the age of sixteen is arrested and charged with a violation of law, he should be taken directly before the juvenile court and “the said court shall proceed to hear the case in accordance with the law in trials of such offenses.” The juvenile court is a part of the circuit court of the city of St. Louis and has under this act exclusive jurisdiction to try “delinquent” children for criminal offenses, and the practice and procedure and punishment of offenders under sixteen years of age remain the same as before the passage of the Juvenile Court act, with the exception that the juvenile court has certain discretions as to the punishment to be inflicted. The officers of the court perform the same services and are entitled to the same fees in cases in the juvenile court that they perform and were entitled to prior to the passage of that act. The Juvenile Court act does not in terms repeal the statutes providing for the fees of officers of the circuit court, in criminal cases. There is no implied repeal of the statutes concerning criminal costs in the proseution of “delinquent” children charged with the violation of the criminal laws of the State. Bepeals by implication are not favored and a later statute will not repeal a former one by implication unless they are irreconcilably inconsistent, or it appears that the Legislature intended the later act to take the place of the former one. [Manker v. Faulhaber, 94 Mo. 430; State ex rel. v. Walbridge, 119 Mo. 383; Evans v. McFarland, 186 Mo. l. c. 723.]

We not only do not discover any irreconcilable conflict between the Juvenile Court act and the general statute as to the trial and punishment of “delinquent” children, but the Juvenile Court act on its face, we think, intends to preserve the procedure and general statutes in regard to the prosecution of minors under sixteen just as it was before that act, with the exception that it confers the exclusive jurisdiction upon the circuit court and gives it a wide discretion as to the punishment of said minors and the foregoing of all punishment under certain conditions. In our opinion the Juvenile Court act does not affect or control the right of the relator to his fees, but his right thereto must be determined by the statutes in force before and since the passage of that act, as already noted in this opinion.

As imprisonment in the penitentiary was not the sole punishment for the offense with which Meier was charged, it follows that the State was not liable for the costs upon his acquittal, and that the Auditor was right in refusing to audit the costs bill, even though he gave a wrong reason for so doing, and the peremptory writ must be denied. [State ex rel. Spurlock v. Holladay, State Auditor, 67 Mo. 299.] Writ denied.

Brace, G. J., Burgess, Valliant, Fox, Lamm and Graves, JJ., concur.


text:
    WILLIAM A. HOWARD v. HENRY P. P. BROWN, Appellant.
    Division One,
    June 19, 1906.
    1. OBJECTIONS: General. Objections to tax deeds, court proceedings, and service of process, so general in character that they do not inform the court in what particulars counsel consider them defective, amount to no objections at all.
    2. NOTICE BY PUBLICATION: Four Weeks before Term. A publication to a non-resident defendant made on March 15, 22, and 29 and April 5, for a term to begin on Máy 7, complies with the law which requires the publication to be made for four successive weeks, the last insertion to be made at least four weeks before the commencement of the term.
    3. SUMMONS: Middle Name: Personal Service. Where the defendant has a middle name, and is sued by the insertion of the wrong middle initial, the mistake is of no consequence if the writ was personally served on the right party.
    1. -: -: By Publication. The real name of the defendant was Henry P. P. Brown and the notice by publication was to Henry T. Brown. But the suit was against all the cotenants of a tract of land, and his name was placed in a group composed of the names of his mother, his sisters, their husbands and his nephew, composing all the members of his' family. Held, that, as he made no specific objection to the sufficiency of the publication, he is not entitled, on appeal, to have the sufficiency of the notice considered.
    5. RELATION: Purchaser at Sheriff’s Sale: Reconveyance Before Acknowledgment. The title acquired at a sheriff’s sale, after the purchaser receives the sheriff’s deed duly acknowledged, relates back to the date of the sale, and does not date from the time the sheriff acknowledged the deed in open court. Therefore, if such purchaser, before the sheriff acknowledged the deed in open court, conveys the land to another, he conveys whatever title he acquired under the sheriff’s deed.
    6. TRUST: Property to Be Held Under Contract: Sale. Property conveyed by cotenants, plaintiff and defendant, to a trustee to be sold by him to pay debts, the surplus to be divided between them, and afterwards bought by plaintiff at the administrator’s sale, is held by the plaintiff subject to the rights of defendant as expressed in the trust agreement, for thereafter he became the trustee.
    7. QUIETING TITLE: Accounting. In a’suit to quiet and determine the title to land, the court cannot take an accounting between the parties, and determine what part of the surplus, after paying the debts, according to a certain written agreement entered into by them, each should take.
    Appeal from Buchanan Circuit Court. — Now. N. M. Ramey, Judge.
    Reversed and remanded (with directions).

      W. N. Haynes for appellant.
    (1) The trial court erred in admitting in evidence, over the objection of appellant, city tax deed. The same does not in any particular comply with the law in force at the time it was made, nor does the notice of sale comply with the law in such cases. (2) The trial court erred in admitting in evidence, over the objection of appellant, the papers, records and judgment in the case of Barber Asphalt Co. v. Mary A. Brown et al.; the respondent herein, Henry P. P. Brown, was described in the order of publication as Henry T. Brown, and the proof of publication does not show that it was published as required by law at that time; that is, for four weeks successively, the last insertion to be at least four weeks before the commencement of the term at which defendant is required to appear. R. S. 1879, sec. 3500. (3) The court erred in admitting in evidence, over the objection of appellant, the sheriff’s deed to Silas Woodson, under special execution sale, in case of Barber Asphalt Co. v. Mary A. Brown et al., for the reason that the judgment against this appellantwasvoid for want of service on him in said cause, the publication not stating his name, nor was it published as required by law at that time. R. S. 1879, sec. 3500. (4) The court erred in admitting in evidence, over the objection of appellant, the deed from Silas'Woodson and wife to Parmelia J. Brown, for the reason that it is a quit-claim and at the time it was made, September‘26, 1888, Silas Woodson had no interest in the premises mentioned in same; and for the further reason that the sheriff’s deed to him, offered in evidence, had not been executed and was not executed until September 27, 1888. (5) The court erred in admitting in evidence the deed of Samuel H. Smith, administrator of Parmelia J. Brown, deceased, to William A. Howard, the respondent herein, over the objection of appellant, for the reason that the reápondent failed to show any authority upon the part of Smith, the administrator, to sell the property. (6) The court erred in admitting in evidence, over the objection of the1 appellant, the contract between the parties, Exhibit A; but, when admitted, it shows that the appellant, Henry P. P. Brown, by agreement of all the parties, had an interest in the property; and the court erred in finding that he had no interest therein.

      Grant 8. Watkins for respondent.
    (1) Notice was good as to Henry P. P. Brown., The middle letter is not a necessary portion of his name. In order to raise the question, it was necessary for defendant to plead it. Young v. Schofield, 132 Mo. 650. (2) The objection and the exceptions saved by appellant were general exceptions and without merit; neither could it be raised by collateral attack. The notice to Henry P. P. Brown and others in the case of the Barber Asphalt Paving Company was good and sufficient. The publication was sufficient. The first publication was on the 15th day of March, second on 22d, third oh 29th, the fourth on the 5th of April, which was more than four weeks before the 7th day of May. The publication shows that it was first published on the 15th day of March, and was published five times weekly; thereafter. Robbins v. Boulware, 88 S. W. 674; Russell v. McCoy, 165 Mo. 89; Ratcliff v. McGee, 165 Mo. 467; State v. Jones, 168 Mo. 401; Haywood v. Russell, 44 Mo. 252. The sheriff’s deed proved itself. This deed could not be attacked in a collateral proceeding. R. S. 1899, sec. 3210; Saches v. Clingingsmith, 97 Mo. 406; Jordan v. Sunghnor, 107 Mo. 520; Robbins v. Boulware, 88 S. "W. 674. The objection to said deed was not specific and raises no question in this court. Adair v. Mette, 156 Mo. 507; Drey v. Doyle, 99 Mo. 459; Schmidt v. Railroad, 163 Mo. 645; Taylor v. Pullen, 152 Mo. 440; Stephens v. Railroad, 87 Mo. App. 28. (3) "Woodson took title from the date of the sale, and besides there was no objection, made to the deed or exception saved! in the .trial court. Said deed was executed September 10. Strain v. Murphy, 49 Mo. 337; Schumate -v. Reavis, 49 Mo. 333; Porter v. Mariner, 50 Mo. 364; Land & Lumber Co. v. Pranks, 156 Mo. 689; Robbins v. Boulware, 88 S. W. 674; Young v. Schofield, 132 Mo. 650; Tleskenstein v. Baxter, 114 Mo. 493. Por the further reason that it affirmatively shows that "Woodson paid for property on September 10, on day of sale. (4) The administrator’s deed had all of the necessary recitals and was prima facie evidence of the facts therein stated. It conveyed the title to Howard, and there were no exceptions made or saved at time of trial. R. S. 1899, sec. 172; Bray v. Adams, 114 Mo. 486.
   VALLIANT, J.

Suit under statute to quiet title to real estate in St. Joseph.

George W. Brown, now deceased, was the common source of title. He left a widow, Mary Ann, who has since died, and nine children, all of whom are now dead except two daughters, Evelyn Knapp, widow of George Knapp, Ella Howard ,wife of plaintiff, and Henry P. P. Brown, the defendant. None of the deceased children left issue except Mrs. Ployd, who left one child, Paul Ployd. One of the children of George W. Brown, Pearl, before her death, conveyed her interest by quit-claim deed to her mother, Mary Ann. The only one of the children of George W. Brown, deceased, whose title is in dispute here is the defendant, Henry P. P. Brown.

The plaintiff claims title under Parmelia Brown, one of the children of Geo. W. Brown, deceased, by the following chain of title:

1. By a quit-claim deed of August 24th, 1888, Parmelia acquired the title of all the heirs then living except Henry P. P. Brown and Paul Floyd.

To prove title as to the interests of Henry P. P. and Paul the plaintiff introduced the following:

2. A deed from the tax collector of the city of St. Joseph dated November 3d, 1887, reciting that the taxes on the land due the city for the years 1884 and 1885 were unpaid, that the regular proceedings as to advertisements, etc., were had, the property was offered for sale and struck off to one W. L. Buechle, to whom a certificate of purchase was given, which he had duly assigned to Parmelia Brown, and the statutory period of two years having expired therefore the land is sold to her.

When this deed was offered it was objected to on the ground: “That it does not comply with the requirements of the statute in setting out facts required by law — they have taken a warranty deed and scratched out the warranty part of it and scratched out the husband and wife part and signed it as city collector. I will call the court’s attention to it and there are other objections; that notice of sale is insufficient.” The Court: “Consider it in subject to the objection.” Exception taken.

3. The record of the circuit court in a suit to enforce special taxbills against the land in suit wherein the Barber Asphalt Paving Company was plaintiff, and the widow, Mary Ann, and the heirs of Geo. W. Brown then living, were named as defendants. The defendant in the suit at bar was not described in that suit by the name of Henry P. P. Brown, but by the name of Henry T. Brown. The petition stated that the defendants William B. Floyd, Paul Floyd, George W. Brown and Henry T. Brown were non-residents of this State, and the court made an order of publication for them. The order of publication was made March 14, 1888, returnable the first day of the next term, which was May 7, and was published March 15, March 22, March 29 and April 5,1888.

At the May term, 1888, all the defendants, except Paul Floyd, a minor who answered by guardian ad litem, made default, and after hearing proof the court rendered judgment declaring the tax bills sued on special liens on the respective lots and awarding special executions on the same. Executions issued and the property was sold by the sheriff to the highest bidder, Silas Woodson, on September 10, 1888, and sheriff’s deed in due form delivered.

When that record was offered counsel for defendant made the following objection: “We object to it because it does not convey the interest of Henry T. Brown and others and the notice of publication against this defendant is insufficient.” And when the sheriff’s deed was offered it was objected to “as incompetent and irrelevant and as not affecting the interest of H. P. P. Brown in the. premises.” The objections were overruled and exceptions taken.

4. A quitclaim deed from Woodson and wife to Parmelia J. Brown dated September 25, 1888.

5. A deed from the administrator of the estate of Parmelia J. Brown deceased conveying lot 4, which is the lot in question in this suit, to the plaintiff, dated May 20, 1902, reciting due proceedings in the probate court and order to sell.

It appears from the oral evidence in the ease that lots 5, 6 and 7, which are the subject of another suit between these parties, were sold by the administrator of the Parmelia Brown estate to one Shoup, and that proceedings were instituted by the heirs in the probate court to set aside that sale, and negotiations with Shoup were on foot to obtain the title from. him. It also appears that Grace Brown, wife of defendant Hienry P. P., had in 1899 bought a tax title under a sale for city taxes to lot 4, which lot is the subject of this suit. Information of those facts is necessary to understand the following agreement which was introduced in evidence by the plaintiff:

“Exhibit A. — This agreement made and entered into by and between John Howard of Brown Co., Kansas, party of the first -part, and the following named heirs of Parmelia J. Brown, deceased, who are as follows : Henry Philip Price Brown, Evelyn Knapp, Ellen Howard, Paul Floyd, Mary A. Brown of Buchanan Co., Mo., parties of the second part, who are the only heirs at law of Parmelia J. Brown, deceased.
“It is hereby agreed by and between the party of the first part and the parties of the second part, that in the matter of the estate of Parmelia J. Brown, that the property described which was purchased at administrator’s sale in Buchanan Co., Mo., by Charles A. Shoup shall be deeded to the said party of the first part held in trust for said parties of the second part, subject to the provisions hereinafter stated.
“First, that said party of the first part will convey to any purchaser that said parties of the second part may agree upon any or all of the property herein described upon the written request of the said parties of the second part so to do until all said property shall be disposed of.
“And, it is further agreed by said parties of the second part that the deeds of trust against said property shall first be paid out of any money received from said estate or the property sold subject to said deeds of trust thereafter; that the indebtedness of said estate to William A. Howard which is on record in the probate court will be paid out of any funds left over from said payment of deeds of trust and that together with the expense attached to the transfer of said property from Charles A. Shoup to said party of the first part and that the expense attached to the procurement of tax deed by Mrs. Grace Brown be paid to her and that she will relinquish all of her right, title and interest in and to any of the property belonging to said estate upon the payment of said amount due for said tax deed, together with legal interest thereon, which tax deed is against lot 4, block 1, Landis & Hull’s Addition to the city of St. Joseph, Missouri.
“It is further agreed by and between party of the first part and said parties of the second part that after said indebtedness shall have been paid that said surplus of said estate, if any remain over and above after satisfying said indebtedness, be pro-rated and divided as follows:
“It is further agreed between all parties herein referred to that Henry Philip Price Brown has a one-eleventh interest in said estate, over and above any other interest which any other heir may claim to said estate, and that after said one-eleventh interest is taken out that the balance remaining, he holds an undivided one-fifth interest of any surplus of said estate.
“That Evelyn Knapp holds an undivided one-fifth interest in said estate. That Paul Floyd, holds an undivided one-fifth interest in said estate. That Mary A. Brown holds an undivided one-fifth interest in said estate. That it is the mutual agreement here that they shall share and share alike in the distribution of the surplus of said estate after the encumbrances thereon are paid.
“It is further agreed that said party of the first part will not sell the said real estate or any part thereof excepting upon the agreement of said parties of the second part in writing to the sale thereof, that upon their written request he will execute a deed therefor and that he will distribute the surplus if any remain over and above in his hands in accordance with this agreement.
“And Henry Philip Price Brown further agrees that if distribution is made according to the provisions of this contract, that he will quit-claim any and all interest in and to any and all of the said property herein described.
“The property which is subject to this agreement is as follows: The east 20 feet of lot 1, and the east 20 feet of the south 16 feet of lot 2, in block 30, original town, now the city of St. Joseph, Mo., and lots 4, 5 and 6 and 7, block 1, Landis & Hull’s Addition to the city of St. Joseph, Missouri.
“It is further agreed by and between the parties of this contract that the entire expense, including attorney’s fees for the contesting of the administrator’s sale in the probate court to said property, together with the purchasing of the abstracts and settlement with Charles A. Shoup, shall be charged to the estate and be borne by the heirs as their respective interests appear in said estate.
“In Witness whereof, we have hereunto set our hands this 19th day of December, 1899. ’ ’ This is signed by John G. Howard, William A. Howard, Ellen Howard, Henry Philip Price Brown, Grace Brown, Evelyn Knapp.

The decree of the court was that the title to lot 4 was in the plaintiff and that defendant Henry P. P. Brown had no interest in it. Defendant appealed.

Mrs. Grace Brown was also a party defendant in this suit but no appeal for her was taken.

Appellant makés nine assignments of error but they may be compressed into the following:

1. The tax deed to Parmelia Brown was incompetent evidence.

2. The record in the Barber Asphalt case was incompetent, for lack of notice to Henry P. P. Brown and for the same reason the sheriff’s deed to Woodson was invalid.

3. The deed from Woodson to Parmelia was invalid because it was dated September 26th and the deed from the sheriff to Woodson was not executed until September 27th.

4. The deed from the administrator of the Parmelia Brown estate to plaintiff Howard was invalid because no authority was shown for its execution.

5. The court erred in admitting in evidence the contract Exhibit A.

The objections that were made to the introduction of these documents in evidence were so general in their character that they did not inform the court of the particulars in which the counsel objecting thought they were defective. Of the tax deed it was said: “We object to it on the ground that it does not comply with the requirements of the statute in setting out facts required by law — they have taken a warranty deed and scratched out the warranty part of it and scratched out the husband and wife part and signed it as city collector. I will call the court’s attention to it and there are other objections; that notice of sale is insufficient.” That is so lacking in specification that it really amounts to no objection at all. And even in the brief of appellant now before us we do not know in what particular he considers the tax deed defective or the notice of sale not sufficient. The only comment in the brief is: “The same does not in any particular comply with the law in force at the time it was made, nor does the notice of sale, see page —, comply with the law in such case.”

Of the record in the Barber Asphalt Paving Company case it was said: “We object to it because it does not convey the interest of Henry T. Brown and others; and the notice of publication against this defendant is insufficient.” In the brief the objection is stated thus: “The respondent Henry P. P. Brown is described in the order of publication as Henry T. Brown, and the proof of publication does not show that it was published as required by law at that time, that is, for four weeks successively, the last insertion to be at least four weeks before the commencement of the term at which defendant is required to appear. ’ ’ In the particular last mentioned appellant is mistaken as to the fact, the publication was made March 15, 22nd, 29th and April 5th, the first day of the return term was May 7th. The publication, therefore, covered the period prescribed by the statute.

The general rule in this country seems to be that the middle name, or initial of the middle name, is no part of the real name, and that a variance in that particular is immaterial. But the rule is not of universal application, even in forums where it is recognized. Common experience teaches that the middle name may or may not be important for identification according* to circumstances. The general rule is thus stated in 21 Am. and Eng. Ency. Law (2 Ed.), 307:

“It is generally held that the law does not recognize a middle name, and therefore in a legal instrument an omission of the middle name or initial, or a mistake in such name or initial, or the insertion of a middle initial in a name which has only two members, is of no importance. But this doctrine that the middle name or initial is no part of the name and therefore is of no importance is not universal. It is repudiated in Massachusetts, and in some other jurisdictions the courts seem inclined to attach more importance to the middle name or initial than the doctrine allows, and some courts hold that while it is not necessary to give the middle name or initial, yet if either be given, a mistake therein constitutes a fatal variance.”

This court has held to the general rule as above stated. [Smith v. Ross, 7 Mo. 463; State v. Martin, 10 Mo. 391; State v. Moore, 61 Mo. 276; Phillips v. Evans, 64 Mo. 23; Skelton v. Sackett, 91 Mo. 377; Beckner v. McLinn, 107 Mo. 277; Corrigan v. Schmidt, 126 Mo. 304; Turner v. Gregory, 151 Mo. 100.] But it was in only one of those cases that this court held that the judgment of the trial court was not invalid hy reason of the fact that the publication contained a misdescription of the defendant in the initial of her middle name; that was the case of Beckner v. McLinn, supra. In that case, which was a partition suit between the heirs of Jacob Byers, deceased, one of the non-resident defendants was designated as Mary E. Byers, widow of Jacob Byers, whereas her name was Mary Ann. But the decision holding that the judgment was valid as to Mary Ann did not rest entirely on the fact of the publication, but it was also found that, independent of the publication, she knew that the suit was pending, engaged counsel to protect her interest, and before final distribution of the proceeds of the partition sale she filed a motion in the case claiming her share.

Where a defendant is sued by wrong name in this particular, that is, by the omission of the middle name or its initial, or the insertion of an initial middle name when there is none, or the insertion of a wrong initial, when there is one, in all such cases if the writ has been personally served on the right party the mistake in the name is of no consequence. But when the jurisdiction of the court over the person of the defendant depends on notice of publication, the question is not so free from doubt, and it becomes necessary to look into the circumstances. In the publication now under consideration - this defendant, whose real name is Henry P. P. Brown, was designated as Henry T. Brown. Brown is not an unusual surname and Henry is not an unusual Christian name. It would not therefore be a very remarkable occurrence if two men named Henry Brown were found in the same community; in such event if one was named Henry T. and the other Henry P. and the name given in the publication was Henry Brown and if there was no other circumstance to indicate which Henry was intended, or, a fortiori, if the name given in the publication was Henry T. while the person really intended was Henry P., if we should hold that a judgment by default against Henry P. based on such publication was valid, we would be going further in that direction than we have gone in any of our former decisions.

And so in the case at bar, if the style of the case was stated in the publication only as The Barber Asphalt Paving Co. v. Henry T. Brown, there might be some reason to question whether that was sufficient to notify Henry P. P. Brown that there was a suit against him. But here the defendant’s name was placed in a group which was composed of the names of his mother, his sisters, their husbands and his nephew, comprising all the members of the immediate Brown family to which he belonged. And there might have been other circumstances, as there were in the ease of Beckner v. McLinn, above referred to, which would have received the consideration of the trial court if the objection had been made that the initial of the defendant’s middle name was incorrectly stated in the publication. But the defendant made no such specific objection and gave the court no opportunity to consider that point; he is, therefore, not entitled to have it considered on this appeal.

The sheriff’s deed recites that the sale was made on September 8th, the deed is dated September 10th, and was acknowledged in open court September 27th. The deed from Woodson and wife to Parmelia Brown is dated September 25th, acknowledged September 26th, and filed for record September 27th, 1888.

The point is now made that Woodson took no title until September 27th when the sheriff’s deed was acknowledged in open court; therefore, Woodson had no title on the 25th when-his deed was made. Woodson’s title after he received the sheriff’s deed related back to the time the property was struck off to him at the sheriff’s sale, and a deed made by him at any time after that date would, after he had received the sheriff’s deed, have conveyed whatever title he acquired under the sheriff’s deed. But there was no such objection made when this deed was offered, and appellant has no right to make it now.

The record shows no objection made at the trial to the introduction of the deed of the administrator of the estate of Parmelia Brown.

We find no error of which the appellant has any right to complain in the admission of any of those documents in evidence.

The-finding and decree of the court was that the title to the lot in question was in Parmelia Brown at her death and passed to the plaintiff under the administrator’s deed and that Henry P. P. Brown haid no interest in it; it was recited in the decree that the plaintiff and defendant Grace Brown had agreed in open court that in consideration of the sum of $208 which was then paid to her she relinquished whatever interest she had under her tax deed.

The judgment of the court locating the title to the lot in the suit in the plaintiff was right, but the decree goes too far when it declares that the defendant Henry P. P. Brown has no interest in the property. The contract Exhibit A introduced in evidence by the plaintiff shows that the title to the property was to be acquired and held by John Howard in trust for the purposes therein expressed, that it was to be sold as therein specified and the proceeds, after paying certain debts and encumbrances mentioned, were to be divided between the parties to the contract, the heirs of Parmelia Brown. Among the debts to be paid was the debt due the plaintiff “which is on record in the probate court,” and it was ranked next after the debts covered by the deeds of trust.

That contract was introducéd into this case first by the plaintiff’s reply to the defendant’s answer, it is therein claimed as his contract, and it is in the reply averred that by virtue of that contract the defendant has no interest in the property in suit. After the execution of that contract and while, for aught that appears in this record, it was in full force, the plaintiff purchased the property from the administrator of the estate of Parmelia Brown and took the administrator’s deed which was shown in evidence. The plaintiff could not under the circumstances, as far as they are shown in this record, take a deed from the administrator which would destroy the rights of the defendant under that contract. His deed from the administrator had the effect, as far as the rights of the parties to that contract are concerned, to convey the title to him in trust for the purposes in that contract expressed; he hy that deed became the trustee instead of John Howard. In accounting with the parties as trustee he will of course he entitled to whatever legitimate expense he has incurred in obtaining the deed, to he paid him before any distribution of surplus as called for in the contract.

The contract specifies that out of the surplus of the proceeds the defendant is to have one-eleventh and one-fifth; it is not as clear as it might he, in one view it seems to cover only lots 5, 6 and 7, which were the lots sold to Shoup by the administrator, hut’ further on it seems to have aimed to clear up that uncertainty and specifies that it is to cover lots 4, 5, 6 and 7 of block 1 of Landis & Hull’s Addition.

As this is a proceeding under section 650, Revised Statutes 1899, to quiet title, the court could not have gone forward and taken an account' even if the land had been sold and the parties were ready for an accounting (the facts as to which the record in this case does not show) because such a proceeding could not he conducted under this statute. [Seidel v. Cornwell, 166 Mo. 51.] It is contended hy the plaintiff that the parties failed to comply with their part of the contract Exhibit A and that there is, or will be, no surplus to divide. But that is a matter that cannot be settled in this suit and is left for future settlement amicably or by litigation as the occasion may require. "We do not intend by anything said in this opinion to forestall any defense the plaintiff may offer if he should be hereafter called into court to answer as trustee under the contract, further than to say that the title he acquired by his deed from the administrator of the estate of Parmelia Brown deceased is subject to whatever equities the defendant has under that contract.

When the circuit court decreed that the defendant Henry P. P. Brown had no interest in the land it thereby cut him off from any share he might be entitled to in the surplus if there should be a surplus in the proceeds of the land when it is disposed of by the trustee, and to that extent the judgment is erroneous.

The judgment is reversed and the cause is remanded to the circuit court with the directions to enter a decree vesting the title to the lot in question in the plaintiff subject to the equities if any the defendant may have under and by virtue of the contract shown in the record in this case marked Exhibit A of date 19th December, 1899, between John Gt. Howard, William A. Howard, Ellen Howard, Henry Philip Price Brown, G-race Brown and Evelyn Knapp, and' that the plaintiff and defendant pay each one-half the costs in the circuit court.

All concur.