author: FOX, P. J.

text:
    THE STATE ex rel. HAMMER, Collector, Appellant, v. WIGGINS FERRY COMPANY.
    Division Two,
    December 24, 1907.
    1. STATUTES: In Pari Materia. The true intent of the Legislature is to he ascertained hy construing together all statutes bearing on the one subject in controversy.
    2. -: -: In Reference to Railroads. In order to ascertain what railroads are by the statutes intended to be assessed by the State Board of Equalization, sections 1163, 9338, 9339, and 9344, Revised Statutes 1899, are to be construed together.
    3. -: -: Railroads: Taxation. For the purpose of being assessed by the State Board of Equalization for taxation, railroads include not only railroads “owned, hired or leased by railroad companies or corporations,” but “all corporations, companies or individuals owning or operating, or which may hereafter own or operate, any railroad in this State.”
    4. -: —-: -: -: Wiggins Ferry Company. The statutes (Secs. 9338, 9339 and 9344, when construed in connection with Sec. 1163, R. S. 1899) authorize the State Board of Equalization to assess as railroad property belonging to a ferry company across 'the Mississippi river, 3.702 miles of roadbed, switches, superstructure, roiling stock and “all other property” in St. Louis, owned nominally by a railroad transfer company, whose stock belonged wholly to the ferry company, which used the railroad property in connection with its ferry business.

      5. RAILROAD: Storage Tracks. Where the tracks, used in connection with defendant’s ferry business, are not simply loading or storage tracks upon which cars are stored while being loaded or unloaded, preparatory to or before being ferried across the Mississippi river, but are used not only for these purposes, but also for regular traffic and switching purposes from the river to and from railroad termini, they constitute a railroad.
    6. ——: By Whom Owned. There is nothing in our statutes, nor in the definition of a railroad, which excludes the idea that a railroad may not be constructed, owned or operated by persons other than a railroad corporation.
    7. -: Tax Assessment: Ferry Company: Interstate Traffic. The State is not prohibited by the Constitution and laws of the United States from taxing the property located in this State of corporations engaged in foreign or interstate commerce — for instance, a ferry company engaged in transporting freight across the Mississippi river between Illinois and Missouri.
    8. -: -: -: —<-: Franchise. A tax assessed by the State of Missouri against the franchise of a ferry company engaged in interstate commerce, being a tax against its charter right and privilege to conduct a ferry business across the Mississippi river between Illinois and Missouri, is invalid, since it is a tax imposed by a State upon interstate commerce.
    9. —:-: -: -: -> — : -: Intangible Property. Nor can the value of the franchise of the ferry company be included in the estimation of the value of the intangible property belonging to the subsidiary railroad company in this State whose stock the ferry company owned. But the proportional value of the rights and privileges of the three companies (namely, the ferry company, and its two subsidiary railroad companies, one in Illinois and the other in Missouri, which nominally owned railroad tracks in their respective States, but whose stock was owned by the defendant ferry company), acting in unison as one company, to construct, maintain and operate a system of railroad in this State, in connection with and as a part of a system in the other State, may be included in the valuation upon which the tax assessment is based.
    10. -: -: -: —--: -: How Estimated. In estimating the value of the intangible property of a railroad in this State operated by a ferry company in connection with its interstate traffic, it is proper, and the only way in which its true value may be reached, to take into consideration not only the rights and privileges the company is exercising in this State and the property here located, but also its connection with and relation to other property not located in this State, but which is used in the system of work with the property which is taxable in this State.
    11. -: -: Evidence. Evidence offered by the tax collector for the purpose of showing that the defendant ferry company owned all the stock of the two railroad companies whose tracks were used by defendant in connection with its ferry business, the purpose of the suit being to collect a taxbill for the railroad property located in this State and nominally owned by one of the railroad companies, is competent.
    Appeal from St. Louis City Circuit Court.— Hon. H. D. Wood, Judge.
    Reversed and remanded.

      Johnson, Howts, Marlatt S Halves for appellant.
    (1) The State Board of Equalization had jurisdiction under the provisions of article 8, chapter 149, Revised Statutes 1899, to assess defendant corporation if it was operating a railroad. 1. Section 1163, Revised Statutes 1899, defines a railroad corporation to mean “all corporations, companies or individuals owning or operating a railroad.” 2. Similarly comprehensive definitions are generally adopted by statutes of other States. 3. Many sections of the Missouri statutes contemplate ownership and operation of railroads by individuals and companies other than those organized under railroad corporation acts. Secs. 1062-1067, 1083, 1092-1094, 1096-1098, R. S. 1899: 4. Individuals and private companies may own and operate railways. Amos Kent Lbr. & Brick Co. v. Tax Assessor, 114 La. Ann. 864; 23 Am. and Eng. Ency. Law (2 Ed.), 674; Mitchell v. Township of Lake, 126 Mich. 367; Improvement Co. v. Slack, 100 U. S. 648; Williams v. Bettle, 50 N. J. L. 132; Beach v. Wakefield, 107 Iowa 567. 5. The Legislature has defined' “person” to include corporation, company or firm. Sec. 9123, R. S'. 1899. 6. Even without legislative definition the term “railroad company” would include any individual or company owning or operating a railroad. Railroad v. DeBusk, 12 Colo. 304; Moran v. Ross, 79 Cal. 163. (2) These tracks constitute a railroad within the meaning of article 8, chapter 149, Revised Statutes 1899.' 1. Railroad defined: Pierce, Railroads, p. 2; Doughty v. Fairbank, 10 Q. B. D. 359; Bouvier’s Dictionary. 2. A railroad need not be of any definite length, nor go beyond the limits of a city nor haul anything besides freight cars. "Wiggins Ferry Co. v. Railroad, 107 111. 458. 3. These tracks are used just as the tracks of the Transfer Railway and East St. Louis Connecting Railway are, which are admittedly railroads. 4. It is not essential that railroad own rolling stock. 1 Elliott, Railroads, p. 7; Railroad v. Railroad, 118 U. S. 290. 5. The name of a corporation is immaterial; the question is, what does it do? Union Trust Co. v. Kendall, 20 Kan. 515. 6. Whatever does a railroad’s work is a railroad. Amos Kent Lbr. & Brick Co. v. Tax Assessor, 114 La. Ann. 864; Mitchell v. Township of Lake, 126 Mich. 367; Fort Street Union Depot Co. v. Commissioner, 118 Mich. 340; Beach v. Wakefield, 107 Iowa 382; Railroad v. Irvin, 72 111. 432; Williams v. Bettle, 50 N. J. L. 132; Sams v. Railroad, 174 Mo. 68; Regina v. Newport Dock Co., 31 L. J. M. C. 266. 7. The evidence shows that the Wiggins Ferry Company owns and controls the St. Louis Transfer Railway and therefore operates those tracks jointly with those of the Transfer Railway. Courts will disregard corporate fictions to get at the real facts. Buie v. Railroad, 65 S. W. 30. (3) The assessment of “all other property mentioned in the Laws of 1901, section 2, page 232,” was entirely legal. Western Union Tel. Co. v. Gottlieb, 190 U. 8. 424; State ex rel. v. Western Union Tel. Co., 165 Mo. 502.

      J. E. McKeigham for respondent.
    (1) Defendant not only has the legal right to transfer loaded and empty freight cars across the Mississippi river at St. Louis, but it is its legal duty to do so. Wiggins Perry Co. v. Railroad, 73 Mo. 413. It is a familiar rule of taxation that tax statutes are strictly construed against the government, and are to be strictly pursued by the officers of the government who act under them. There is no such thing as an equitable or liberal construction of a statute creating a tax, or providing for its assessment or collection. State v. St. Louis County Court, 13 Mo. App. 53, 84 Mo. 224. No authority was or is conferred upon the State Board of Equalization to assess the tracks in question. The State Board of Equalization, under sections 9338, 9339' and 9344, Revised Statutes 1899, is only authorized to assess railroad tracks owned by a railroad company or corporation, and constituting a railroad within the common and general acceptance of that word. The tracks in question were owned by defendant as a ferry company, as a means of performing its ferry duties in the transportation of loaded and empty freight cars across the Mississippi river, and merely as incidental to its main business, as a ferry company, and did not establish defendant ferry company as a railroad company or corporation, within the meaning of the sections' cited. State ex rel. v. Stone, 119 Mo. 668; State ex rel. v. Railroad, 97 Mo. 348. (2) The franchise of the Wiggins Perry Company to operate a ferry across the Mississippi river cannot be attached to the tracks in question, since the Perry Company is incorporated by the laws of the State of Illinois, and its franchise cannot be assessed or taxed in the State of Missouri. McCullough v. Maryland, 4 Wheat. 316; Lewis v. Pacific Mail S. S. Co., 17 How. 599; St. Louis v. Wiggins Ferry C'o., 11 Wall. 423; Morgan v. Parkham, 16 Wall. 471; Louisville Ferry Co. v. Kentucky, 138 TJ. S. 385. The situs of the franchise of the Wiggins Ferry Company, defendant, was in Illinois and not in Missouri. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 126; St. Clair County v. Interstate Sand & Car Co., 192 U. S. 454.
   FOX, P. J.

This is an action which was instituted in the circuit court of the city of St. Louis, by the State at the relation of the collector of the revenue of said city, to collect certain taxes assessed' by the State Board of Equalization against three and seven hundred and two one-thousandths miles of railroad tracks, owned and used by the Wiggins Ferry Company, in the city of St. Louis. A jury was waived, and the cause was tried by the court; the finding and judgment of the court were for the defendant, and the plaintiff duly prosecuted its appeal to this court.

There is no dispute about the facts of the case, except in one particular, which will hereafter be mentioned in paragraph two of this opinion, and they are substantially as follows:

The defendant, The Wiggins Ferry Company (which will hereafter be called the Ferry Company), is a corporation, and was duly incorporated under the laws of the State of Illinois on the 11th day of February, 1853, and was empowered, among other things, as follows:

“4. To survey and lay off said lands, or any part thereof, into blocks, lots, streets and alleys, and grade and pave said streets and alleys, or any part thereof, and to lay off and dedicate to public use, grounds for market places, schools, churches and parks, and to sell, lease and donate any part of said lands, in such manner and upon snch. terms as said company may deem proper, and execute conveyances for the same, and to subscribe for, take and buy and hold, and sell stock in any railroad or plank or turnpike road company, and issue bonds bearing such rate of interest, and payable at such times and places as the company may think proper, not exceeding one hundred thousand dollars.

“5. To keep a ferry or ferries at and from any point or points on said lands, across the Mississippi river, to St. Louis, in the State of Missouri, and to remove the same from place to place on said lands as necessity or convenience may require, and use boats or other crafts propelled by steam, heat, or other power, and possess, use and enjoy all the rights, privileges, franchises and emoluments recited in the preamble of this act as having been heretofore granted to the said Samuel Wiggins, his heirs and assigns, on and from the lands to be purchased as herein provided for and generally to do and perform all things in reference to the ownership, control, management, use and disposition of said ferry franchise, ferry and lands, and of the business carried on thereat, which a natural person might or could do.”

Under the powers thus granted, the defendant, either by purchase or lease, acquired real estate on the east and west banks of the Mississippi river, at the points designated in its charter, for wharves and landing purposes. At first the Ferry Company, by means of boats, engaged in the carriage and transfer of freight and passengers over the Mississippi river, without the intervention of railroads and cars, and received and discharged same at the aforesaid wharves. In the course of time the public demands upon the defendant 'were such, as to require it, in addition to the duties it was then performing, to handle and transfer freight over the river in car load lots. This new demand necessitated the construction and operation of a railroad at each end of the ferry —one in Illinois and one in Missouri. In order to meet this new condition, the Ferry Company organized and incorporated, or has organized and incorporated, under the laws of Illinois, the East St. Louis Connecting Railway Company (which will hereafter he called the Connecting Company), and under the laws of Missouri, the St. Louis Transfer Railway Company (which will hereafter he designated the Transfer Company) ; the Ferry Company owning all the stock of both of said railway companies. - Each of these railway companies constructed tracks connecting the east and west termini of the ferry with the various railroads and other business institutions which terminate at or which are located near said termini. In addition to those tracks, the Transfer Company constructed a number of switch tracks, side tracks and storage tracks on the Missouri side of the river.

When this system or scheme was completed, the Connecting Company, by means of its engines, would receive from other railroads all cars of freight destined to St. Louis via the ferry, and would haul them over its tracks and deliver them to the Ferry Company, which company would receive and transfer them, in boats, across the Mississippi river to St. Louis, where they were delivered to the Transfer Company. The latter company would receive and deliver them to the various railroads and business institutions to which they were consigned.

The car lots of freight destined from St. Louis to East St. Louis via the Ferry Company went through the same routine as those from East St. Louis to St. Louis, but was first received by the Transfer Company, and by it delivered to the Ferry Company, and by that company transferred across the river and delivered to the Connecting Company, and by it to the various railroads or to the consignees.

The following extract from the testimony of Mr. A. C. Church, former vice-president of the Ferry Company, will throw much light upon the system under which the business of these three companies was conducted, to-wit:

“Mr. Johnson: I will ask you, Mr. Church, to tell us in what way the compensation from one company to the other was charged upon the books of the company?

“Mr. Ralston: That’s objected to as incompetent and immaterial and not embraced in any issue in this case.

The Court : Mr. Church, as I understand it, the. Wiggins Ferry Company received pay from the St. Louis Transfer Railway Company for cars hauled over whatever tracks it owned? A. The Wiggins Ferry, Judge, would bring them across the river, and then the Transfer Railway Company would receive pay for hauling them from the boat to the railroad or the warehouse or destination they were to go to. The charge was the amount paid by the shipper all in a lump. As far as the Wiggins and the Transfer Railway Company were concerned, it was out of one pocket and into the other, and it made no difference whatever as to what they charged as among each other. The Wiggins Ferry Company, the Transfer Railway and the .Connecting Railway, while three separate and distinct corporations, were one interest and owned by the same people.

“Q. Well, you mean that the stockholders of all three were the same? A. I mean, Judge, that originally the Ferry Company had no railroads at all. The East St. Louis Connecting Railway was first built on the east side of the river. It was fathered by the Ferry Company and built to take care of its business. Then followed a similar railroad on this side. The railroads belonged to the Ferry Company, it was the parent corporation and the treasury of the three companies was one.

“Q. Well, were these two railroad companies incorporated under a separate and distinct charter? A. Oh, yes, sir; they are distinct organizations, separate and distinct, and they were run just as if they had no connection with the others. Each one could stand on its own bottom separately, but, of course, they were one harmonious system, and each intended to help the other. ’ ’

If we correctly understand the evidence, the 3.702 miles of railroad in question is. what is termed switching, loading and storage tracks, which at one time belonged to the Transfer Company and was by it conveyed to the Ferry Company. This was prior to the time the taxes in question were levied; but, however that may he, the Ferry Company owned the road in question' prior to and at the time the levy was made. The road is composed of many short, standard gauge tracks, upon and over which steam engines and freight cars are constantly being operated and handled, as before stated.

The Ferry Company owned no cars, engines, turn tables, nor water tanks. It employed the Transfer Company to handle, switch, receive and deliver all its freight on the west side of the river, which was done over its own.tracks and those of the Ferry Company. The former company has engines but no* cars, except two push cars, worth thirty dollars; nor has it any tracks extending to the water’s edg'e, connecting immediately with the ferry.

The Ferry Company, working in harmony with the two railroad companies mentioned, handles and transfers across the river a large part of the interstate commerce between Missouri and Illinois, at tbe points named.

There is no question raised as to tbe regularity of tbe assessment of tbe taxes in question; but tbe power to make tbe assessment is denied.

Tbe State Board of Equalization assessed and equalized tbe value of tbe rolling-stock, roadbed, and superstructure and “all other property’’ mentioned in Laws of 1901, section 2, page 232, pier mile, and tbe aggregate value of tbe buildings of tbe following railroad and railway companies on tbe first day of June, 1900, for tbe taxes of 1901, and, after having beard all the evidence in regard to tbe same, by unanimous vote fixed tbe distributable value, per mile, of tbe rolling-stock, roadbed and superstructure, “all other property,” and tbe aggregate value of buildings of said railroads and railways as follows:

The valuation of tbe Wiggins Perry Company’s railroad tracks per mile was as follows:

Tbe defendant introduced evidence tending to prove that tbe $30,000 item appearing in tbe above table was assessed against tbe franchise of tbe Perry Company — that is, tbe right to conduct a ferry across tbe Mississippi river between East St. Louis and the city of St. Louis.

Plaintiff then introduced in evidence tbe record of tbe State Board of Equalization for 1901, showing the proceedings of tbe board in fixing the total valuation for purposes of assessment of tbe railroad tracks of tbe Wiggins Perry Company:

“The secretary laid before the board the tables of valuations of all railroads, bridges and telegraph companies, as apportioned to the counties and municipal divisions thereof and the city of St. Louis; which were examined, approved and adopted as the assessment of railroad, bridge and telegraph property for the taxes of 1901, as set out in the following tables, and ordered spread upon the record and proceedings of the board and made a part thereof:”

The following table shows the valuation and assessment of the Wiggins Perry oCompany railroad tracks, to-wit:

The following is a copy of the tax-bill sued on, formal parts omitted, to-wit:

FOR RAILROAD, BRIDGE AND TELEGRAPH COMPANY TAXES, FOR THE YEAR 1901, ON PROPERTY IN THE CITY OF ST. LOUIS, AS ASSESSED BY THE STATE BOARD OF EQUALIZATION OF THE STATE OF MISSOURI.

The railroad in question had been regularly assessed by the State Board of Equalization for ten years previous to the one in question, in the same manner and against the same party, and those taxes were regularly paid by it up to the year 1901; but it refused to pay the taxes for that year, and for a recovery of those taxes this suit was instituted.

At the close of the introduction of all the evidence the defendant requested the court to declare the law as follows:

“1. The court declares the law to be that under the pleadings and the evidence offered by the plaintiff the plaintiff cannot recover, and the judgment must be rendered in favor of the defendant.

“2. The court declares the law to be that under the pleadings and all the evidence in the cause the State Board of Equalization of the State of Missouri had no right, power, authority or jurisdiction to assess, equalize or adjust the railroad tracks in the petition described for taxation for the year 1901.

“3. The court declares the law to be that under the pleadings and all the evidence in the cause, the State Board of Equalization of the State of Missouri had no right, power, authority or jurisdiction, under the Fourteenth Amendment to the Constitution of the United States, to assess, adjust or equalize the franchise of the "Wiggins Ferry Company, or any part thereof, for taxation in the State of Missouri, or taxes for the year 1901.”

The court gave said instructions after striking out the words “ under the Fourteenth Amendment to the Constitution of the United States,” and the plaintiff preserved proper exceptions to the giving of said instructions.

At the close of all the evidence the cause was submitted to the court sitting as a jury, and its finding, as heretofore stated, was for the defendant and judgment in accordance with such finding was entered of record. A timely motion for new trial was filed and by the court overruled, and from the judgment rendered in this cause the plaintiff prosecuted this appeal, and the record is now before us for consideration.

OPINION.

I.

The legal propositions presented by this record are whether or not the three and seven hundred and two one-thousandths miles of railroad belonging to the Ferry Company is a railroad within the meaning of article 8, chapter 149, Revised Statutes 18991, and if so, is it subject to taxation as therein provided. The appellant affirms both of those propositions, while the respondent denies both.

In order to properly determine those questions we must construe and ascertain the meaning of the statutes relating to the assessment and taxation of railroads. Sections 1163, 9338, 9339 and 9844, Revised Statutes 1899, are the principal statutes bearing directly upon the subject, and are as follows:

“Sec. 1163. The term ‘railroad corporation’ contained in this chapter shall he deemed and taken to mean all corporations, companies or individuals now owning or operating, or which may hereafter own or operate, any railroad in this State.

“See. 9338. All railroads now constructed, in course of construction, or which shall hereafter be constructed in this State, and all other property, real, personal or mixed, owned, hired or leased by any railroad company or corporation in this State, shall be subject to taxation for State, county or other municipal or local purposes, and taxes levied thereon shall be levied in the manner hereinafter set forth.

“Sec. 9339. On or before the first day of January in each and every year, the president or other chief officer of every railroad company whose road is now or which shall hereafter become so far completed and in operation as to run locomotive engines, with freight or passenger ears thereon, shall furnish to the State Auditor a statement, duly subscribed and sworn to by said president or other chief officer, before some officer authorized to administer oaths, setting out in detail the total length of their road so far as complete, including branch or leased roads, the entire length in this State, and the length of double or side tracks, with depots, water tanks and turn tables, the length of such road, double or side tracks in each county, municipal township, incorporated city, town or village through or in which it is located in this State; the total number of engines and cars of every kind and description, including all palace or sleeping cars, passenger and freight cars and all other movable property owned, used or leased by them on the first day of June in each year, and the actual cash value thereof.

“Sec. 9344. The state board for the assessment and equalization of railroad property shall be composed of the Governor, Secretary of State, State Auditor, State Treasurer and Attorney-General, and shall meet annually at the capítol in the City of Jefferson, on the third Monday of April of each year, for the purpose of assessing, adjusting and equalizing the valuation of such railroad property. The said hoard shall proceed to assess, adjust and equalize the aggregate valuation of the property of each one of the railroad companies in this State specified in section 9339. The hoard shall have power to summon witnesses hy process issued to any officer authorized to serve subpoenas, and shall have the power of a circuit court to compel the attendance of such witnesses, and to compel them to testify; they shall have the power, upon their knowledge, or such information as they can obtain, to' increase or reduce the aggregate valuation of the property of any railroad, company included in the statements and returns made by the railroad companies and the clerks of the county courts, and shall assess, adjust and equalize any other property belonging to said railroad companies, or property belonging to any railroad companies in this State of the kind specified in section 93391, upon which no returns have been made, which may be otherwise known to them, as they may deem just and right. In assessing, adjusting and equalizing any railroad property for any year or years, the state board may arrive at its finding, conclusion and judgment, upon its knowledge, or such information as may be before it, and shall not be. governed in its findings, conclusions and judgment by the testimony which may be adduced, further than to give to it such weight as the board may think it is entitled to:Provided, that when any railroad shall extend beyond the limits of this State and into another State in which a tax is levied and paid on the rolling stock of such road, then the said board shall assess, equalize and adjust only such proportion of the total value of all the rolling stock of such railroad company as the number of miles of such road in this State bears to the total length of the road owned or controlled by such company.”

In order to ascertain the true intention of the Legislature we must construe all the sections of the statute bearing upon the subject in controversy together. This is one of the elementary rules underlying the construction of statutes, and has been stated by an able text-writer in the following language: “All consistent statutes relating to the same subject, and hence briefly called statutes in pari materia, are treated prospectively and construed together as though they constituted one act. This is true where the acts relating to the same subject were passed at different dates, separated by long or short intervals, at the same session or on the same day.” [Sutherland, Stat. Construction, sec. 283.] And, continuing, he says: “A statute must be construed with reference to the system of which it forms a part. And statutes on cognate subjects may be referred to, though not strictly in pari materia.” [Id. sec. 284.]

This rule of construction was quoted with approval in the case of Sales v. Barber Asphalt Co., 166 Mo. 671, and by the Court in Banc in the case of State ex rel. v. Patterson, 207 Mo. 129.

In the light of this rule of construction, we will now determine what railroads are included within the meaning of those sections of the statute. If we read sections 9338, 9339 and 9344 alone they refer only to such railroads as are owned, hired or leased by railroad companies or corporations, which would exclude all railroads owned, hired or leased by all other companies, corporations and individuals. But when we read these sections in connection with article 2, chapter 12, Revised Statutes 18991, which is the only law in the State regarding railroads, prescribing how they shall be organized, constructed' and operated, as well as their rights, duties and obligations, and defining the words “railroad company” and “railroad companies,” quite a different conclusion might he reached. Section 1163 of said chapter reads as follows: “The term ‘railroad corporations’ contained in this chapter shall he deemed and taken to mean'all corporations, companies or individuals now owning or operating, or which may hereafter own or operate, any railroad in this State.”

According to the authorities before mentioned, this section must be construed with and read into sections 9338, 9339 and 9344. By doing so these sections, instead of being restricted to railroads owned by railroad compames or railroad corporations, would he extended in their operation and include “all corporations, companies, or individuals owning or operating, or which may hereafter own or operate, any railroad, in this State.” This, we take it, is the clear meaning of the Legislature as expressed in those sections of the statutes when all are read together, as they should be. That which is within the meaning of a statute is as much a part of it as if it were written therein. Judge Scott stated the same rule in this language: “A thing which is in the intention of the makers of a statute is as much within the statute as if it were within the letter.” [Riddick v. Walsh, 15 Mo. l. c. 535; Humes v. Railroad, 82 Mo. 227.]

With this construction placed upon sections 9838, 9339 and 9344, they clearly include the road of respondent. But to escape that construction respondent contends that the road in question is not a railroad within the meaning of the railroad laws, hut are only loading or storage tracks upon which cars are stored while being loaded and unloaded.

In answer to that contention it may be first said, that the record does not bear out that contention. The evidence shows that they are used not only for those purposes, but also for regular traffic and switching purposes. In fact, the plat in evidence shows that respondent’s tracks are the only ones extending to the water’s edge and over which cars can pass to and from its boats and onto those of the Transfer Company. Besides this, it is conceded that steam engines pass over and draw or push freight cars, loaded and unloaded, over these tracks, not only for storage, loading and unloading, but for all purposes incident to its traffic.

Bouvier’s Law Dictionary, page 813, thus defines a railroad: “A road graded and having rails of iron or other material for the wheels of railroad cars to run upon.” In Doughty v. Firbank, L. R, 10 Q. B. D. 359, a railroad is defined to be “a way upon which trains may pass by means of rails. ’ ’

There is nothing in these definitions, nor in our statutes, which excludes the idea that a railroad may not be constructed, owned or operated by other persons than railroad corporations. ■ Nor is there any legal requirement .that a railroad shall be of any particular length. [Wiggins Ferry Co. v. Railroad, 107 Ill. 450, l. c. 454.] Nor is it essential that a railroad should own rolling stock. [1 Elliott on Railroads, p. 7; Railroad v. Railroad, 118 U. S. 290.]

We entertain no douht about the road in question being a railroad within the meaning of article 8, chapter 149, Revised Statutes 1899. But returning to the question of assessment. This direct question came before this court in the case of State ex rel. v. Railroad, 162 Mo. 391. In that case the company had owned certain lands for twelve years, a part of them was crossed by switch and side tracks, while other parts and lots were not so used. The assessor of Buchanan county assessed the vacant lots for taxation under the general revenue laws, and the question there presented was, should such lots he assessed by the county assessor or by the State Board of Equalization? It should be added that the railroad company in that case contended that it purchased all of the land mentioned for railroad purposes and intended to so use it in the future, as soon as the business of the company demanded it. In the discussion of that case this court said: “In that case [State ex rel. v. Hannibal & St. Joseph Railroad Company, 135 Mo. 618] it was decided that the list of railroad property required by section 7718, Revised Statutes 1889 (now sec. 9339, R. S. 1899), to be furnished the State Auditor as the basis of the action of the State Board of Equalization, includes not only the land covered by the right of way of the main line, depots, etc., but also land covered by side tracks and used as a switch yard in connection with its traffic as a common carrier. In that case the following from the Supreme Court of Illinois was quoted with approval: ‘We are, therefore, of the opinion that the land held in actual use by a railroad company for sidetracks, switches and turn-outs, must be regarded, within the meaning of the revenue laws, as a part of the right of way of the company. ’ [Railroad v. People ex rel., 98 Ill. 357.] The theory of the system of taxing railroads, as contained in our statute, seems to be that the railroad, with all the necessary appurtenances to its efficient equipment as a means of traffic, is to be taken as a whole and assessed for taxation by the State Board of Equalization. . . . Taking the decision in State ex rel. v. Hannibal & St. Joseph Railroad, above cited, as the law of this case, the only question is, whether these lots are to be deemed as in use by the defendant for its side-tracks and as a switch yard.” The court then announced its conclusion in that case, which was that the vacant lots were not assessable by the county assessor, but should be assessed by the State Board of Equalization.

There is nothing in the Constitution and laws of the United States which prohibits a State from taxing the property of persons and corporations engaged in foreign and interstate commerce where the property is located in such State; but upon the contrary, the Supreme Court of the United States has repeatedly held that a State may tax all such property which is located in such State. [Western Union Tel. Co. v. Missouri ex rel. Gottlieb, 190 U. S. 412, l. c. 424; State ex rel. v. Western Union Tel. Co., 165 Mo. 502-523; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, l. c. 210.]

Measured by the authorities heretofore cited upon the proposition now under discussion, we see no escape from the conclusion that respondent’s road was subject to assessment by the State Board of Equalization and not by the city assessor, as contended for by learned counsel for respondent.

II.

A more serious proposition is involved in respondent’s second objection to the validity of a portion of the assessment in question. The contention of respondent is that the record discloses the fact that the $30,000 item assessed against the Ferry Company as the value of “all other proerty” per mile of said road, is a tax against its franchise; that is, a tax against its charter right and privilege to conduct a ferry business across the Mississippi river between East St. Louis and the city of St. Louis.

There is some evidence contained in this record tending to support that proposition; and, if true, the levy would be clearly invalid, for the reason that it would be a tax imposed by a State upon interstate commerce, which is prohibited by the Constitution and laws of the United States. The national government alone is possessed of the power to tax and regulate foreign and interstate commerce. [Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; St. Clair County v. Interstate Land & Car Trans. Co., 192 U. S. 454; Louisville Ferry Co. v. Kentucky, 188 U. S. 385, St. Louis v. Wiggins Ferry Co., 11 Wall. 423; Morgan v. Parham, 16 Wall. 471.] But from an examination of the entire record, owing, to the meagerness of the evidence upon that question, and the modification and giving of instructions by the trial court, it is extremely difficult for us to ascertain and determine what the finding of the court was upon that point. The evidence is not clear or satisfactory, and the instructions given do not make manifest the finding of the court or the views of the court as to the law applicable to that particular question.

The court gave for respondent the three instructions heretofore copied; the first two of which are in the nature of demurrers to the evidence, which declared appellant could not recover, while the third as asked declared that under the Constitution and laws of the United States the State Board of Equalization had no authority to assess the franchise of the Ferry Company for taxation; but before giving said instruction the court struck therefrom all that part referring to the Constitution and laws of the United States, thereby leaving the inference that the court was not satisfied that the $30,000 item was assessed against the franchise of the Ferry Company, but that it had been assessed against its other railroad property, which was also invalid, for the reason that none of its railroad property was assessable by the State Board of Equalization but was assessable by the city assessor of the city of St. Louis.

The appellant insists that respondent, under its charter from the State of Illinois, had power and authority to acquire and hold railroad stocks, and that, when it constructed or had constructed the Connecting Company and the Transfer Company and owned all the stocks of both and Consolidated all three of the companies for traffic purposes and charged one tariff for transportation over the combined system, for the purposes of taxation it must be considered and taken as one entire system of transportation, especially in so far as regards the property standing in the name of the Ferry Company, which includes the railroad in question.

The appellant’s oral evidence, while very meager, tends, however, to prove that “all other property at $30,000,” mentioned in the assessment, was an assessment against the railroad in question for the right and privilege of constructing, maintaining and operating the road in this State, in connection with its right to conduct its business wherever the system of lines belonging to the three combined companies extend, all representing a unity of use in the entire corporate property of the three corporations, thereby making the same much more valuable than it otherwise would be for use separately and independently of each other. The evidence also tends to show that the State Board of Equalization in arriving at the value of the railroad in question, after making an investigation and hearing evidence, ascertained the kind and amount, as well as estimated the fair value, of the tangible and intangible property of the three companies as an entire system of transportation, at a certain sum, not including, however, the value of the right of each of said companies to be corporations. The board then ascertained the value of the tangible property of all of the companies and deducted that sum from the total value of the tangible and intangible property of the three companies, thereby fixing the value of the intangible property. It then fixed the value of the tangible property owned by the Ferry Company and the Transfer Company which was located in this State, and assessed the respective amounts thereof against each. It then divided the value of the intangible .property, before mentioned, among each of the three companies in the proportion that the value of each company’s tangible property as before assessed bore to the amount of the intangible property. The result of all this was the assessment of respondent’s said railroad for the amounts stated in the assessment heretofore mentioned.

As before stated, the oral evidence upon these questions, on both sides, is very unsatisfactory, yet we gather from the whole record, briefs and arguments of counsel on file herein that the foregoing was substantially the process by which the value of the railroad was arrived at, and upon which the assessment in question was based; but whether that be true or not, the law presumes the State Board of Equalization properly performed its duty in that regard. [State ex rel. v. Western Union Tel. Co., 165 Mo. l. c. 516; State v. Lord, 118 Mo. l. c. 4; Agan v. Shannon, 103 Mo. 661.] And there is no substantial evidence preserved in this record to overthrow that presumption.

But counsel for respondent contends that, even conceding the railroad in question was regularly assessed and in the manner before stated, yet he argues that the assessment is invalid for the reason that “the franchises of the Wiggins Ferry Company to operate a ferry across the Mississippi river cannot be attached to the tracks in question since the Ferry Company is incorporated by the laws of the State of Illinois, and its franchise cannot be assessed or taxed in the State of Missouri. ’ ’ In other words, respondent contends that in fixing the value of “all other property” of the railroad, the franchise of the Ferry Company was included in the estimation of the value of the intangible property of the three companies mentioned, and that such value was distributed between those companies in the proportion that the value of each road’s tangible property bore to the value of the intangible property of the three.

If the facts in the case were as contended for by respondent’s learned counsel, then the legal conclusions stated by him would unquestionably be sound, and the assessment would be invalid. [McCulloch v. Maryland, 4 Wheat. 316; Hays v. Pacific Mail Co., 17 How. 599; St. Louis v. Wiggins Ferry Co., 11 Wall. 423; Morgan v. Parham, 16 Wall. 471; Louisville Ferry Co. v. Kentucky, 188 U. S. 385.] But from the record before us we are unable to concur in the views that the value of the franchise of - the Perry Company was' included in the board’s estimate of the value of the intangible property of those companies. Our understanding of the evidence is that the franchises of all three companies, that is, the rights to be a corporation and to conduct a ferry and a railroad business, were excluded from that estimate; but the value of the rights and privileges of those companies, acting in unison as one company, to construct, maintain and operate a system of railroad in this State in connection with and a part of a system in another State, was-included in the valuation upon which the assessment was based.

This question came squarely before this court in the case of State ex rel. v. Western Union Tel. Co., 165 Mo. 502. It was there held, “First, that the Western Union Telegraph Company is, as between governmental departments, a governmental agency, but is not so as between the company and a State or a citizen; second, that the telegraph company is an instrument of interstate commerce, and has a right to enter a State and transact business; third, that the telegraph company being an instrument of interstate commerce and deriving its powers in this regard from the United States, no State has a right to prevent such company from doing business in the State, for that would be an interference with interstate commerce; fourth, that the tangible property of the telegraph company located in a State is subject to taxation like any other property in that State, and its franchise or right derived from the Act of Congress of 1866 does not exempt such property from taxation by the State in which such . property is located; fifth, that in determining the value of the tangible property of the company located in any State, it is proper to compare the length of its lines in that State with the length of its entire lines, or to take the aggregate value of the shares of its capital stock, and deduct therefrom such portion of that valuation as is proportional to the length of its lines without the State, and also to deduct therefrom . the value of its real estate and machinery subject to local taxation within the State. And that such taxes, so assessed, constitute an excise tax upon the property or capital of the corporation and not a tax upon any franchises of the corporation.” That case went to the Supreme Court of the United States and was affirmed by that court, and is reported in the 190 U. S. 412.

There is but one difference in the facts of that case and .the one at bar. In that case there was but one corporation, which was conducting a telegraph business through the several states and territories of the Union, as well as in foreign countries; while in this case there were three corporations, the stock of all of which was owned by the Ferry Company, and by some agreement among themselves, they consolidated the ferry with the railroads into one continuous system of transportation, with various railroad branches switches, side-tracks and turn-outs at each terminus thereof, connecting with the various railroads on each side of the river, for the purpose of receiving from and delivering cars to such roads, and for the purpose of furnishing its customers with storage and sidetracks for loading and unloading cars. For this service but one tariff is charged, which includes all railroad and ferry charges, which goes into one and the same treasury.

We are clearly of the opinion that the legal propositions announced in the case of State ex rel. v. Telegraph Co., supra, are applicable to this case. The method adopted in estimating the value of the property is the only way in which the true and full value can be reached; that is, in estimating such value it is proper to take into consideration, not only the rights and privileges the company is exercising in this State and the property actually located therein, but as well its connection and relation to other property which is not located in this State, but which, however, is used m the system of work with the property which is taxable in this State, thereby giving it a value which it otherwise would not have if considered abstractly and separate and distinct from any connection with the system of work to which the property in this State is connected and related. As was ruled in the Telegraph Company case, the property, by reason of its relation and connection with other property which may be located in another State and used as a system in the carrying on of a business, has a much greater value than the sum of the value of the same individual thing constituting the property regarded merely as such. In other words, it is perfectly legitimate in estimating- the value of the property of the respondent in this State, to take into consideration the value such property derived from its use in a system of doing business by-reason of its connection with and relation to other property of the respondent, which may be located in another State.

This court, in the Western Union Telegraph Company case, in discussing the subject as to the method of estimating the value of property located in this State, thus indicated the method that should be adopted in determining such value. It was there said: “In determining the value of the property of the defendant in this State, the board of equalization took into consideration ‘the cost of construction and equipment of said Western Union Telegraph Company, and the location thereof, and its traffic and business, and the par value of its stock and bonds, and the gross receipts and net earnings and franchises owned by said company, and the value thereof,’ it did not and could not have included therein any franchise derived by the defendant from the Government of the United States, because that Government had conferred no such franchise; nor was such a valuation placed upon ‘all other property,’ a tax upon the franchise of the defendant company. The franchise derived by the defendant from the State of New York was considered by the board in determining the value of the property of the defendant located in this State. That is, that property was valued, not as so many poles, so- much wire, so many instruments or so much ‘other property,’ in the abstract, but was valued in the concrete, in the relation that such property in the abstract bore to other property in the abstract, which being brought into relation towards each other — into a system, located partly in this State and partly in other States — gave each part a concrete value, which was much greater than its abstract value. The right to exist — the franchise — of the defendant was property, and was subject to taxation, either directly, in the proportion that the portion of the franchise exercised in this State bore to the proportion of the franchise exercised in other States, or indirectly, as was done in Massachusetts and was done here, by being impressed upon the tangible property owned' by it, thereby increasing its value, and by considering the franchise and its tangible property as a system, and then assessing the part of the property forming a part of the system and located in Missouri as of its proportionate value of the whole property constituting the system. This was expressly held to be proper in Western Union Tel. Co. v. Mass., 125 U. S. 530.”

If those three companies were separate and distinct, with their stock belonging to different persons, quite a different question would be presented; but under the facts of this case, we are of the opinion that it falls within the principle above indicated as announced in the case of State ex rel. v. Western Union Tel. Co., supra.

The conclusions reached upon the proposition now under discussion, not only find support in the case of State ex rel. v. Western Union Tel. Co., but as well in the cases of Western Union Tel. Co. v. Massachusetts, 125 U. S. 530, and the case between the same parties in 141 U. S. 40.

If the facts of this ease are as we understand them to be, then we are clearly of the opinion that the assessment is valid and that the taxes should be paid, but, if upon another trial it should be shown that- the assessment included the value of the franchises of the Perry Company or that of the Connecting- Company, then the assessment upon which the $30,000 item is based, if predicated upon the value of such franchises, is invalid, and the taxes based and extended upon that item cannot be collected. That question should be submitted to the jury for their determination upon the evidence and under proper instructions of the court.

in.

The appellant complains of the action of the trial court in excluding evidence offered by it for the purpose of showing that the Perry Company owned all the stock of the two railroad companies, and that all three were working in unison as one transportation company. While those facts were established by the evidence subsequently admitted by tbe court, yet it was error for tbe court to exclude the evidence offered upon thos® questions, and such evidence should- have been admitted at tbe time it was offered.

We have indicated our views upon tbe legal propositions disclosed by tbe record before us, which results in tbe conclusion that tbe judgment of tbe trial court should be reversed and tbe cause remanded for a new trial in accordance with tbe views as herein expressed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    WILLIAM H. GOTTFRIED v. MARTHA BRAY, Appellant.
    Division Two,
    December 24, 1907.
    1. SPECIFIC PERFORMANCE: Contract: Parol Evidence of Mistake. Defendant may show by parol evidence that the contract, which plaintiff seeks to have specifically performed, even when written, does not, through the mistake of both or either, express the real agreement.
    2. -: -- — : -: Read by Plaintiff to Defendant. The contract, written by plaintiff, obligated defendant to convey a lot 50 by 226 feet at $50 per front foot. Defendant testified that in all the prior negotiations they had agreed upon a lot 50 by 220 feet at $60 per front foot, and that plaintiff came to her house with his wife on a social visit, and presented to her what he termed a receipt for $50 paid on the purchase price, and represented it to be such and nothing more; that she explained to .him that she could not read the writing owing to defective eyesight, and that she would go and get her other eye-glasses which would enable her to read it; that plaintiff reassured her and volunteered to read it himself; that she trusted him to read the writing as it really existed, which he pretended to do; that he did not read it as it was, but purposely omitted all that part relating to the price and size of the lot. She was corroborated by plaintiff and another witness that in all the prior negotiations the lot was to be only 220 feet deep, and that together they had pointed out the line, and that her reason for refusing to sell the other six feet was that to do so would he to destroy her driveway and access to her other property. As to the price she was not corroborated, and plaintiff flatly contradicted her testimony, hut another witness testified that the contract was not read to her as. it was drawn, and that it was represented to her to he simply a receipt to bind the bargain. Up to that time nothing had been said about a contract, the sale being one for cash. Held, that the trial court erred in decreeing specific performance.
    3. -: Discretion. Specific performance is not decreed as a matter of course. It rests in the sound, not arbitrary, discretion of the court.
    4. -: Valid Contract. The fact that plaintiff is able to establish a contract valid at law is not sufficient to entitle him to specific performance. A court of equity often refuses specific performance of a contract it would not set aside.
    5. -: Refusal to Permit Inspection. Where the pretended contract was prepared by plaintiff’s lawyer, without defendant’s knowledge,- and taken to her house by plaintiff when he and his wife were calling socially, and read to her by him, a subsequent refusal by him to permit her to read it strongly smacks of unfair dealing.
    6. EQUITY: Deference to Chancellor. The appellate court defers in a large measure to the judgment of the trial court on a finding of facts in an equity case, but such finding is not conclusive.
    Appeal from Greene Circuit Court. — Row. Jas. T. Ne-ville, Judge.
    Reversed {with directions).

      Barbour & McDavid and McCollum & Johnson for appellant.
    (1) The right to have specific performance of a contract decreed is not a matter of right in either party, but a matter of discretion with the court. 2 Story, Eq., sec. 742; Pomeroy v. Fullerton, 131 Mo. 581; Yeth v. Giertli, 92 Mo. 104. A court will not decree specific performance of contract unless the contract is clearly established. Yeth v. Gierth, 92 Mo. 97; Paris v. Haley, 61 Mo. 453; Taylor v. "Williams, 45 Mo. 80. It is a well-established rule that in suits for specific performance of contracts, even when written, the defendant may show by parol that the writing does not express the real agreement. 2 Pomeroy’s Equity Jur. (2 Ed.), 860'; Railroad v. Curtis, 154 Mo. 10. (2) The learned trial court evidently tried and rendered judgment in this case on the theory that the written contract offered in evidence was conclusive evidence of the agreement between plaintiff and defendant, notwithstanding the fact that this contract was assailed by defendant as having been fraudulently obtained, and not voicing the agreement for the sale of the lot had between herself and plaintiff. The controlling question in this case is whether or not defendant was tricked into signing this contract as she testifies she was, or whether it spoke the agreement had between the parties relative to the sale of the lot, and in determining this fact in the light of all the testimony, the contract offered in evidence in itself should not be weighed in the scale as against defendant, but the question should first be. determined from the evidence as to whether or not this was a contract between the parties. (3) The preponderance of the evidence in this action was clearly in favor of defendant.

      Tatlow $ Mitchell and E. D. Merritt for respondent.
    In this case the issue was sharp- and direct in the trial court as to whether plaintiff did, or did not, read all of the contract of sale to defendant at the time of its execution, and there is sufficient evidence to sustain either contention. In such a case the appellate court will not interfere with the findings of the trial court. Strine v. "Williams, 159 Mo. 582; Chance v. Jennings, 159 Mo. 560'; Am v. Arn, 81 Mo. App. 133; Culver v. Smith, 82 Mo. App-. 390; Carter v. Dilley, 16-7 Mo. 571; Benne v. Schnecko, 109 Mo. 250; Clark v. Bank, 57 Mo. App. 277. Defendant in her brief assigns no error committed by the trial court in the admission of evidence. No declarations of law were asked or given. Her four assignments of error all resolve themselves into this, that the court should have found for defendant instead of for plaintiff. Under the authorities cited the findings of the trial court will not be disturbed.
   GANTT, J.

The plaintiff, William H. Gottfried, brought his suit in the Greene County Circuit Court against the defendant, Martha Bray, alleging^ that on the 29th day of June, 1903, defendant agreed in writing to sell to him certain real estate situated in the city of Springfield, which alleged agreement is as follows: “50.00. Received from William H. Gottfried the sum of fifty dollars, the same being part of purchase price of the east fifty feet of the lot or tract of land now and for many years past owned and occupied by me as a residence and situated on East Walnut street, on the north side of the street, between Jefferson and Kimbrough streets, in the city of Springfield, Greene county, Missouri. Said lot so purchased by said Gottfried has a frontage of fifty feet on Walnut street with a depth of two hundred and twenty-six feet. The purchase price of said lot is to be fifty dollars per front foot on Walnut street, and is to be due and payable when I tender to said Gottfried a,n abstract of title showing perfect title in me, together with a good and sufficient deed of conveyance, with covenants of general warranty, conveying said lot to said Gottfried. Abstract and deed to be furnished within ten days from date thereof.

“Dated this June 29, 1903. Martha Bray.”

Plaintiff prayed specific performance of said alleged contract. Defendant’s answer pleads as a defense to the action that she never agreed to the writing sued on, nor the terms thereof, although her name was appended thereto; that she and the plaintiff had been negotiating with reference to the sale of this piece of ground prior to the execution of the alleged contract, but that in all of their negotiations they had talked of and agreed upon $60 per front foot as the price of the property to be sold, with a depth of 220 feet; that the plaintiff had never complained of the price, but on the contrary agreed to the same, and also to the depth which said lot should have. The plaintiff came to her house in company with his wife and presented to the defendant what he termed a receipt for money, and represented it as such and nothing more; that she explained to plaintiff that she could not read the writing owing to defective eyesight, and stated that she would go and get her other glasses which would enable her to read it; that plaintiff reassured her and volunteered to read it himself; that she trusted him to read the writing as it really existed, which he pretended to do; that he did not read it as it is set forth in the contract sued on, but purposely omitted from, such reading, and with intent to defraud this defendant and procure her signature to an instrument, to the terms of which she did not and does not agree, all that part of said alleged contract relating to the price per front foot, and to the depth of the lot.

Defendant further states as a defense to said action that she relied upon plaintiff’s representation that he would read it correctly, and that it contained only a receipt for the $50 which he at that time was paying her, and signed the same, but that said writing did not contain the terms upon which the ground had been sold, but other and different terms, and that her signature was procured through fraud and misrepresentation. The circuit court decreed specific performance and defendant appeals.

I. That there was an agreement by defendant to sell plaintiff a portion of her residence lot fronting on Walnut street in the city of Springfield, there can be no doubt. Plaintiff insists that she agreed to sell and convey him the east fifty feet of said lot fronting on Walnut street and extending in depth 226 feet, for fifty dollars per front foot or $2,500 in the aggregate; whereas, defendant testifies and insists she only agreed to sell him fifty feet front with a depth of 220' feet for sixty dollars per front foot or $3,000 in the aggregate. On the part of the plaintiff the evidence consists of plaintiff’s testimony and the written memorandum prepared at his instance and signed by defendant. The defendant on her part testified positively that she agreed to sell plaintiff the fifty feet, but that it was only to extend 220 feet in depth and that the price was sixty dollars per front foot or $3,000; that during the negotiations she and her niece, Mrs. Collins, went with plaintiff over the lot and showed him that the 220 feet extended to the barn lot fence and that she would not sell more that that amount, as more would ruin her driveway; that previous to plaintiff’s coming to her residence she and her niece had measured the lot and found that 220 feet deep would take the lot to her barn fence, and she cut a notch in the fence to show him where it would come to, and when plaintiff came, she and Mrs. Collins went with him and showed him where it would come and plaintiff said that it was as deep as he wanted it, and she told him then and there that was all she would sell under any circumstances or consideration, because if she sold more she would have to drive between her barn lot and his lot and that would ruin her driveway. On this point Mrs. Collins fully corroborated defendant. She testified the lot was to be fifty feet in width and 220 feet in depth. She had assisted her aunt, the defendant, in measuring the lot the day before plaintiff came to look at it. Defendant wanted to know how near the fifty feet would come to her house. On this branch of the testimony, plaintiff, on cross-examination, testified that when he went to the lot defendant said the additional six feet would take her chicken coop and she did not want to lose that, and he replied, “Well, the contract was for a lot 226 feet deep;” that she said she had stepped it off and was afraid it would take her chicken coop, and he, plaintiff, kind of laughed it off and said, “Well, that is not of much consequence,” and said no more about it. Plaintiff then left and went to his attorney and had him prepare the memorandum of the trade set out in plaintiff’s petition.

The real contention on this appeal hinges upon the execution of the memorandum of sale by defendant, for while in a court of law the written document is presumed to contain the final agreement of the parties and that all prior verbal negotiations are merged therein, it is nevertheless a well-established rule that when a plaintiff comes into court of equity for a specific performance of the agreement, even when written, the defendant may by parol evidence show that through the mistake of both or either of the parties, the writing does not express the -real agreement, or that the agreement itself was entered into through a mistake as to its subject-matter or as to its terms. “In short,” says Pomeroy in 2 Pomeroy, Eq. Jur. (2 Ed.), sec. 860, “a court of equity will not grant its affirmative remedy to compel defendant to perform a contract which he did not intend to make, or which he would not have entered into had its true effect been understood.” We are required by the arguments of respective counsel to scrutinize the transaction which resulted in defendant’s signing the written agreement. It appears that after the plaintiff and defendant had had one or two short conversations in regard to the trade, on the street, or in plaintiff’s store in the city, plaintiff went to the residence of the defendant and together they looked over the lot. In view of the positive testimony of defendant and Mrs. Collins that the proposed tract to be sold was to be only 220 feet deep and the admission of plaintiff on cross-examination that Mrs. Bray did raise an objection to conveying more than 2201 feet in depth, the preponderance of the testimony tends to show that defendant did not agree to sell plaintiff a lot 226' feet deep as set forth in the memorandum, and defendant gave a good reason for declining to sell more. As to the price per front foot, there is an irreconcilable^ conflict between the parties, plaintiff testifying the price was $50 per front foot and defendant and Mrs. Collins, unqualifiedly, that it was $60 per front foot or $3,000 for the lot.

Recurring to the circumstances in which the memorandum was signed. It appears that nothing had been said about making a written contract to bind the trade. Indeed, plaintiff says that when he approached this subject on what apparently was a mere social call upon defendant at her residence at night, just as he was leaving, he opened the negotiation by saying, “Mrs. Bray, all the dealings we have had in reference to this lot have been verbal. I have had my attorney draw up the contract and I will read it to you, and if after you read it, it meets with your approval I will give you my check for the consideration and close the deal.” It thus appears that the attorney who drew the memorandum of sale had no information other than that imparted by plaintiff. The record also discloses that the defendant had a son, a lawyer, living at that time in Springfield, but she had not been consulted as to the drawing of the contract. The plaintiff read the writing to her, he says, but here again the testimony is hopelessly conflicting. Plaintiff says he read it as written except that on two occasions he read “Will Gottfried,” instead of “said Gottfried,” and his wife called his attention to the mistake. He says then he handed it to Mrs. Bray and she put on her glasses and began to read it aloud and made the same mistake he had made and she then read the balance to herself, and said, “I guess it is all right, Mr. Gottfried,” and said, “I havn’t any pen and ink in the room,” when he said, his pencil would do as well, and she signed it, and he then entered up a check for $50' and gave it to her, and she said, “This is not signed,” and he begged her pardon and signed it. Opposed to this testimony, both Mrs. Bray and Mrs. Collins testified plaintiff did not read the instrument as it afterwards proved to be, but told Mrs. Bray it was just a receipt for $50' for part of the purchase price for the fifty feet of ground; that as he read it there was nothing in it about depth of the lot nor the price he was to pay. • Mrs. Bray says that when he offered it to her to read she told him she could not see with the glasses she was wearing at the time, and her eyesight was not good at night any way, and she signed the paper upon his representation that it was merely a receipt for $50 to bind the bargain. She had never thought of making a contract and had never talked of making one; it was a cash sale. That she afterwards furnished the abstract and had her son, Mr. Yint Bray, prepare the deed to the lot as she understood the trade and for $3,000 and tendered it to plaintiff, whereupon he declined it and brought this suit. It appears that when the dispute arose as to the contract, Mrs. Bray attempted to see the paper she had signed, but plaintiff denied having it and referred her to his attorney who said he did not have it but had a copy of it; that plaintiff said to defendant’s son that “I have got an ironclad contract here for fifty dollars a foot.”

Specific performance is not decreed as a matter of course. The fact that the plaintiff is able to establish a contract valid at law is not alone sufficient to entitle him to a decree. It has often been said by this court that a decree for specific performance rests in the sound, not arbitrary, discretion of the court,' and it is well established that a court of chancery often refuses specific performance of a contract which it would not set aside. [Mortlock v. Buller, 10 Ves. Ch. 308; Seymour v. Delancey, 6 Johns. Ch. 222; Jackson v. Ashton, 11 Pet. (U. S.) 248.] The underlying considerations are stated by Kerr in his work on Fraud and Mistake, (Amer. Ed.), 357 and 358, as follows: “Where the aid of a court of equity is sought by way of specific performance of a contract, the principles of ethics have a more extensive sway than where a contract is sought to be rescinded. . . . Where a party calls for specific performance, he must, as to every part of the transaction, be free from every imputation of fraud or deceit,” and “must show that his conduct has been clear, honorable and fair. ’ ’ [Kelly v. Railroad, 74 Cal. l. c. 563; Railroad v. Reno, 113 Ill. l. c. 43, 44; Pinner v. Sharp, 23 N. J. Eq. 274.] In the last-cited case, the Supreme Court of New Jersey comments upon the great want of prudence on the part of the vendor in signing a document drawn by a stranger with interest adverse to his own without reading it himself and without submitting it to an adviser, and without keeping a copy, but says, ‘ That he did so, is certain. The latter fact may serve, perhaps, to make it more credible that he signed upon a general assurance and belief of its purport, and without attending to a possibly hasty, imperfect or unintelligible reading.” Proceeding to say that written instruments executed voluntarily by competent parties are not to be lightly impeached and that the fraud or deception must be clearly established, adds: “This, however, is not a suit by the defendants to have the contract annulled, but an application to the extraordinary jurisdiction of equity to enforce it. A contract, though valid in law, and sufficient for the recovery of damages, may not be such as equity will decree to be performed.”

Measuring the plaintiff’s conduct by the foregoing standards, did he bring himself within the principles therein announced1? It must he borne in mind that plaintiff was the moving party. Mrs. Bray had indicated no desire to sell a part of her residence lot. He accosted her on the street and it is clear that nothing definite had been agreed upon, but he was to go to. the lot, and did go, and when he went Mrs. Bray pointed out to him where the 220' feet would reach and said she would not sell more in depth. The testimony of plaintiff as to this conversation is lacking in that open, candid and fair tone that equity demands. Over and against the unqualified, positive testimony of Mrs. Bray and Mrs. Collins, he opposes his statement about the extra six feet taking her chicken coop, but was driven to admit that he said that “it was a small matter,’’ thus impressing Mrs. Bray with the belief that at least on this point he acceded to her terms. We think the great preponderance on the amount of land she agreed to sell him was on the part of the defendant. On the vital point of the execution of the document upon which he bases his demand for specific performance, we think the evidence for plaintiff falls short of that fair, clear and honorable conduct which the books require. He was a business man dealing with an old woman. After viewing the lot, and obtaining her terms, if he was unwilling to trust her verbal contract, he should have made known to her his desire to have the contract reduced to writing and requested her to have a conveyancer or attorney prepare the same, or at least, if he wanted to draw it himself, had her attention drawn to the preparation of the paper. No intimation had been given by him to her that he intended to have his own lawyer draw the agreement upon his ex parte statement of what the agreement was. Mrs. Bray says nothing was said about a contract and if there had been she would have consulted her own lawyer and as her own son was an attorney in the city, nothing would have been more natural. But instead of advising her of his desire for a written contract, he had his own counsel prepare this document. When he went to defendant’s residence, he did not approach this important business in a business way. On the contrary he and his wife spent an hour or two in a social manner, and just as he was leaving broached the subject and asked her to sign a receipt for $50 to bind the bargain, and when told she could not read it, volunteered the reading himself, leading her to believe it was mere receipt for a part of the purchase money. Even if read as written the circumstances were such as to throw Mrs. Bray off of her guard and in the language of the New Jersey Supreme Court, to lead her to act upon his assurance of its purport and to fail to give a close attention to “a possibly hasty, imperfect and unintelligible reading of the instrument.” That Mrs. Bray understood she was only to deed a lot 220 feet deep> and was to receive $3,000 for it, her conduct, before any controversy had arisen, strongly supports. And the conduct of plaintiff in refusing to let her see the document smacks strongly of unfair dealing.

In our opinion the testimony does not entitle plaintiff to a specific performance of the contract evidenced by the memorandum. We think he has not overcome the proofs by defendant that she never knowingly executed it in the form it is now, either as to the description of the lot, or the purchase price.

As to the fact that our learned brother on the circuit has reached a different conclusion we need only add that this court does defer in a large measure to the judgment of the trial court on findings of fact, but we have often in equity cases ruled that such' a finding is not conclusive upon us; otherwise, appeals in chancery causes would be idle formalities. [Benne v. Schnecko, 100 Mo. l. c. 257 and 258; Blount v. Spratt, 113 Mo. l. c. 54; McMurray v. McMurray, 180 Mo. l. c. 533; Ryan v. Dunlap, 111 Mo. l. c. 618; Glasgow Milling Co. v. Burnes, 144 Mo. l. c. 196.]

Upon a careful review of the whole record, we think the plaintiff was not entitled to have the contract set forth in the memorandum specifically enforced. Defendant offered to convey in accordance with the contract she made, but is not hound by the document to which she never knowingly and understandingly gave her assent.

The judgment is reversed with directions to the circuit court to dismiss plaintiff’s bill at his costs, and require defendant to return the plaintiff’s check for $50.

Fox, P. J., and Burgess, J., concur.


author: BURGESS, J.

text:
    DICKEY, Appellant, v. HOLMES et al.
    Division Two,
    December 24, 1907.
    1. APPELLATE JURISDICTION: Constitutional Question: Lodged in Reply. The constitutionality of section 23 of article 9 of the charter of Kansas City, providing that no objections shall be pleaded or proved in a suit on a special taxbill for a public improvement other than those that have been made in a writing filed with the Board of Public Improvements within sixty days after the issue of the taxbills, was properly raised in plaintiff’s reply to defendant’s answer, although not raised in the answer, instructions or plaintiff’s .motion for a new trial, if the validity of that part of the charter is necessarily involved in a decision of the case.
    2. -:-: Already Settled. Where the constitutional question has been settled by decisions of the Supreme Court before the appeal was taken, that question does not any longer remain in the case and the Supreme Court has no jurisdiction of the appeal. The Supreme Court will not, in determining to which court the appeal is to be taken, assume jurisdiction of a case on the ground that a constitutional question is involved, where the exact question has been finally settled by its prior decisions. And so, where the suit is on a special taxbill, and the validity of section 23 of article 9 of the charter of Kansas City, providing that no objection to its validity shall be pleaded or proven in court unless incorporated in a written statement filed with the Board of Public Works within sixty days after the taxbill was issued, is properly lodged in the case, and the constitutionality of that section of the charter is the only ground upon which the Supreme Court can take jurisdiction of the appeal, it will transfer the case to the proper court of appeals, since that section had repeatedly been held to be unconstitutional before the appeal was taken.
    Appeal from Jackson Circuit Court. — Sow. John G. Park, Judge. ,
    Transferred to Kansas City Court of Appeals.

      Karnes, New S Krauthoff for appellant.

      Gage, Ladd & Small for respondents.
    This case should be transferred to the Kansas City Court of Appeals. The jurisdiction of this court is invoked in this case because a constitutional question is involved, the amount of the taxbills being insufficient to bring the case here. This court decided, in Barber Asphalt Co. v. Ridge, 169 Mo. 376 (opinion rendered June 18, 1902), that the charter provision invoked by the plaintiff, which the court below disregarded, requiring the defendant to file his objections to the taxbills with the Board of Public Works, was unconstitutional and void. The Court In Banc, on July 30, 1903, in State ex rel. v. Smith, 177 Mo. 69, and this division in Paving Co. v. Munn, 185 Mo. 552, on December 24, 1904, and in several other cases since then, the Supreme Court of this State again so decided. This case was tried January 23, 1905, so that for a number of years before this appeal was taken the Supreme Court of this State had thoroughly blotted out the provision of the charter relied on. We are aware that this court has also held that, because it lias decided' a constitutional question once, that does not prevent the same question being raised over again in the court below and an appeal being taken to this court, but we submit that there ought to be for the protection of the court some limit to this rule, as there is in the Supreme Court of the United States. See Rose’s Code of Federal Procedure, vol. 1, sec. 38 (f).
   BURGESS, J.

This is an action for the enforcement of the-liens of two special taxbills against the properties of the defendants in Kansas City. The judgment in the trial court was for the defendants, from' which judgment, after the filing and overruling of a motion for a new trial, plaintiff appeals.

Although the amount of the taxbills sued on is insufficient to give this court jurisdiction of this appeal, it is claimed by plaintiff that the Supreme Court has jurisdiction because of a constitutional question being involved.

This question, if properly before this court, involves the validity of section 23, article 9, of the charter of Kansas 'City, by which it is provided that the owner or owners "of any tract or parcel of real estate charged with the payment of installment bills shall, within sixty days from the date of issue of the taxbills, file with the Board of Public Works a written statement of each and all objections which he or they may have to the validity of the. taxbills, the doing of the work, the furnishing of the materials charged therefor, the sufficiency of the work or materials therein used, and any mistakes or error in the amount thereof. It is further provided that in any suit on any taxbill issued pursuant to section 23, article 91, no objection shall be pleaded or proved other than those that have been filed with the Board of Public Works within the period aforesaid.

The only way this question is raised, if at all, is by tbe replication to tbe defendant’s answer. It is not raised by the answer, instructions, or motion for new trial; but plaintiff contends that it is necessarily involved in the decision in the case. The same question was raised in the same way in State ex rel. Curtice v. Smith, 177 Mo. 69; and must be held to be properly raised in the ease at bar.

This identical section of the charter of Kansas City has been before this court on several different occasions and has as often been held unconstitutional and void. [Barber Asphalt Paving Co. v. Ridge, 169 Mo. 376.] It was before this court in Paving Co. v. Munn, 185 Mo. 552, in which Gantt, P. J., speaking for the court, said: “We have been urged to reconsider our ruling in that case [Barber Asphalt Co. v. Ridge, supra], and to hold said provision of the charter a valid one. We have carefully considered the argument and authorities pressed on behalf of the plaintiff, but without repeating what was said in Ridge’s case we see no reason for departing from the views then expressed and conclusions reached, in that case. We are still of opinion that it is in conflict with the fundamental principles of our State Constitution and out of harmony with our whole judicial system. [Richter v. Merrill, 84 Mo. App. 150; Winfrey v. Linger, 89 Mo. App. 161.]”. It was again before Division One of this court in Curtice v. Schmidt, 202 Mo. 703, and again in Gilsonite Construction Co. v. Arkansas McAlester Coal Co., 205 Mo. 49; and in both cases held to be unconstitutional, and the question must, therefore, be considered as settled.

Plaintiff, however, says that the fact that this court may have heretofore decided that the charter provision in question is invalid does not prevent the question from being involved in this appeal. It is true that the Supreme Court decided in State ex rel. Dugan v. Kansas City Court of Appeals, 105 Mo. 299, that where one, prosecuted for violating the Local Option Law, defended on the ground that the law was unconstitutional, the Court of Appeals had no jurisdiction on appeal by defendant, notwithstanding the Supreme Court had already declared the law unconstitutional; and also In State ex rel. Curtice v. Smith, supra, “that the rule of practice in this State is that when a constitutional question has once been decided in a case, it can be raised in a subsequent case, and when so raised in the trial court it is so far in the case as to direct the course of the appeal to the Supreme Court.” The same rule is announced in Schafstette v. Railroad, 175 Mo. 142. But this is not an ironclad rule to which there are no exceptions. In the very nature of things, the constitutional question involved must be a live one, not expressly foreclosed by prior decisions of this court, otherwise no such question could ever be settled, no matter how often adjudicated by this court. In Grabbert v. Railroad, 171 Mo. 84, it was held that the amendment to the Constitution allowing nine jurors to return a verdict was legally adopted and was constitutional, and the Supreme Court has always since declined and refused to consider cases where appeal was taken solely on the ground of the alleged unconstitutionality of that amendment, except where the appeal was taken prior to the date of that decision, December 24, 1902. In Murray v. Railroad, 176 Mo. 183, plaintiff recovered a judgment for $500 damages for personal injuries sustained by him in a collision with one of the defendant’s street cars, caused by the alleged negligence of the servants of defendants. Valliant, J., wrote the opinion of the court, in which all the other members of that division concurred. He said: “Defendant appeals from the judgment, and as the appeal was taken before this court had passed on the question, of the validity of the constitutional amendment authorizing nine jurors in a civil case to return a verdict, and as that question was raised in the trial court in this case, the appeal was brought to this court. Since the appeal in this case was taken, however, that constitutional question has been decided by this court and it is no longer in doubt. [Gabbert v. Railroad, 171 Mo. 84] ” The same rule was announced by the Court in Banc in Tandy v. Railroad, 178 Mo. 240, and by Division One of the Supreme Court in Portwright v. Railroad,, 183 Mo. 72. In Lee v. Jones, 181 Mo. 291, there was a verdict for the plaintiff for $1,500, upon which there was judgment rendered, and the defendant appealed. Valliant, J., speaking for the court, said: ‘ The appeal was taken to the St. Louis Court of Appeals, but when the attention of that court was called to the fact that only nine of the jurors concurred in the verdict, and that the constitutionality of such a verdict was challenged in the circuit court, the Court of Appeals transferred the cause to this court. At the time the appeal was taken this court had not passed on the question of the constitutionality of a verdict by three-fourths of the jurors in a civil cause in a court of record; therefore, there was a constitutional question in the case which gave this court jurisdiction, and the action of the Court of Appeals transferring the cause to this court was right. This court having jurisdiction when the appeal was taken will retain it. But since then we have decided that under our Constitution three-fourths of the jurors in a civil suit in a court of record may render a valid verdict, and, therefore, that is no longer a constitutional question in this State. ’ ’ Again, in Franklin v. Railroad, 188 Mo. 533, the defendant appealed from a judgment for $2,500 against it for damages. Defendant in its motion for a new trial made the point that an instruction given the jury by the court to the effect that nine of their number could return a verdict was in violation of de • fendant’s right to trial by jury as guaranteed by the Constitution of this State and of the United States. Valdiant, J., speaking for the court, said: “In Gabbert v. Railroad, 171 Mo. 84, decided December 24, 1902, that subject was put at rest, and since then a question as to the validity of our constitutional amendment authorizing three-fourths of the jury to render a verdict in a civil case in a court of record has not been regarded by us as a live question. But as the appeal in this case was taken before the decision in that case it was properly taken to this court and we will entertain jurisdiction of it.”

In passing upon the same question in Carpenter v. Hamilton, 185 Mo. 603, Gantt, P. J., speaking for the court, said: “It will be observed that'the judgment in this case was for $800', but the jurisdiction of this appeal vests in this court because of the constitutional question raised in the trial court, which was that the verdict was concurred in by eleven jurors only, and the point was made and urged that the amendment to the Constitution of this State, adopted at the general election in 1900, authorizing three-fourths of a jury to render a verdict in courts of record, had never been duly submitted to the people of this State and adopted by them as required by the Constitution of 1875. This point was decided by this court In Banc adversely to this contention in Gabbert v. Railroad, 171 Mo. 84, December 24, 1902, and that decision has since been uniformly followed, but where it has appeared that the point was made in good faith prior to the decision of this court in the Gabbert case, we have retained jurisdiction. Inasmuch as this appeal was taken at the February term, 1902, of the Andrew Circuit Court and filed in this court July 16, 1902, this case falls within the class of which we have retained jurisdiction on the ground that a constitutional question is involved. But in cases appealed since the promulgation of our decision in Gabbert v. Railroad, which would otherwise go to one of the courts of appeals, we have refused to entertain the appeals on the ground that the claim of uneonstitutionality is not made in good faith, and because it is an attempt to compel this court to consider cases which justly fall within the jurisdiction of the courts of appeals. While as a general proposition it is the settled doctrine in this court that the decision of a constitutional question in one case does not foreclose the same question between the parties to another suit, we think it is intolerable that, where the proposition is that an amendment to the Constitution has not been duly submitted and adopted, and the point has been fully considered and a ruling made that it was adopted, the very existence of a part of the Constitution should be questioned merély for the purpose of vesting jurisdiction in this court. Case after case has been certified to this court on this same ground when it was apparent that the point was not made in good faith; and we have accordingly refused to retain jurisdiction. But, as already said, as this case falls within the class of appeals taken before the question of the validity of the amendment was settled, we will retain jurisdiction; otherwise, we would not. [Lee v. Jones, 181 Mo. 291.]”

Boling v. Railroad, 189 Mo. 219; was an action for tort wherein plaintiff recovered a verdict and judgment for one hundred and twenty-five dollars damages. Defendant appealed to the Supreme Court on the sole ground that the amendment to section 28 of article 2 of the Constitution permitting nine jurors in a civil case to return a verdict was never legally adopted. This court, speaking through Gantt, J., said: “Under the recent decisions of this court In Banc and of both divisions, had this appeal been taken to or transferred to this court after the decisions in Russell v. Croy, 164 Mo. 69, and Gabbert v. Railroad, 171 Mo. 84, . . . this appeal should be remanded to the St. Louis Court of Appeals, as the sole ground upon which it is transferred to this court is that the amendment to section 28 of article 2, permitting nine jurors in a civil case to make a verdict, was never legally adopted, but inasmuch as the appeal when taken fairly raised the constitutional question whether such amendments had in fact become a part of the Constitution, and was taken prior to the settlement of that question by this court in the cases above cited, we will retain the appeal as properly in this court; otherwise, we would not. [Lee v. Jones, 181 Mo. 291; Carpenter v. Hamilton, 185 Mo. 603.]”

The case of Barber Asphalt Co. v. Ridge, supra, was decided in Division 2, June 18, 1902, and Paving Co. v. Munn, supra, on December 24, 1904, while the appeal in the case at bar was granted on the 23d day of January, 1905; so that before the appeal in this case was taken Division 2 of this court had twice decided the charter provision in question unconstitutional and void, and both divisions a number of times since. In view of these repeated adjudications, can there be any merit in this appeal? If there is, we fail to appreciate it.

We, therefore, decline to take jurisdiction of this case, and order the record and papers transferred to the Kansas City Court of Appeals, to whose jurisdiction it rightfully belongs.

All concur.


text:
    DICKEY, Appellant, v. ORR et al.; DICKEY, Appellant, v. HOLMES et al.; and DICKEY, Appellant, v. ORR et al.
    Division Two,
    December 24, 1907.
    Appeal from Jackson Circuit Court. — Hem. John G. Park, Judge.
    Transferred to Kansas City Court of Appeals.
   BURGESS, J.

These are all companion cases of Dickey v. Holmes et al., just decided, and reported at page 664 of this volume. They are on all-fours with that case, and for the reasons assigned in that case this court declines to take jurisdiction of them, and orders the records and papers pertaining to each to- he trans-?erred to the Kansas City Court of Appeals.

All concur.