author: WILLIAMS, C.

text:
    THE STATE v. CLARENCE A. RUCKMAN, Appellant.
    Division Two,
    December 9, 1913.
    1. ARSON: Intent to Defraud Insurer: Proof of Insurer’s Incorporation Not Necessary. In a prosecution for arson committed with intent to defraud an insurer it is not necessary to prove that the insurer was a corporation.
    2. -:-: Evidence: Circumstantial: Motive. Evidence of motive is admissible as furnishing one link in the chain of circumstances tending to establish guilt, but mere showing of motive, uncorroborated by other facts and circumstances inconsistent with innocence, is not sufficient prima-facie showing to authorize the submission of defendant’s guilt to the jury.
    3. EVIDENCE: Criminal Law: Suspicion. Mere suspicion, however strong, will not supply the place of evidence when life or liberty is at stake.
    4. -: -: -: Proof: Defendant’s Presence at and Participation in Corpus Delicti. The rule in criminal cases is that the burden of proof never rests on the accused to show his innocence or to disprove the facts necessary to establish the crime with which he is charged. The defendant’s presence at and his participation in the corpus delicti are affirmative material facts that the prosecution must show to sustain a conviction.
    5. -: -: Evidence: Appeal. Evidence in a prosecution for arson with intent to defraud an insurer held insufficient to support a conviction.
    Appeal from Jefferson Circuit Court. — Hon. E. M. Bearing, Judge.
    Reversed and remanded.

      II. B. Irwin and 8. G. Nipper for appellant.
    (1) There is no testimony in this case tending in any way to show that the Washington-Providence Insurance Company was a corporation. This may be shown by general reputation, but there is nothing in the record to show it even in this way. State v. Jackson, 90 Mo. 156; Steele v. Tucker, 84 Mo. 23. (2) The first instruction given by the court submitted to the jury the province of finding the defendant guilty if he “wilfully and maliciously” burned the property and allowed them to find him guilty of a felony without finding that it was done “feloniously.” It is the duty of the court to define the offense accurately in concise language and tell the jury the essential facts necessary to be found- in order to authorize a conviction. State v. McClosky, 104 Mo. 644; State v. Heinze, 66 Mo. App. 135. "Where the evidence is wholly cireumstantial the jury should he instructed that they should not convict unless the State has proved his guilt from the evidence heyond. a reasonable doubt from the facts and circumstances, all of which are consistent with each other and with his guilt, and absolutely inconsistent with any reasonable theory of his innocense. State v. Moxley, 102 Mo. 374; State v. Woolard, 111 Mo. 248. The court clearly erred in admitting the evidence of the witness Mann, that Ruck-man had tried to borrow money from him some time in June, 1911. This was clearly prejudicial and could serve no purpose except to prejudice the minds of the jury. There is not sufficient testimony in this case to warrant a conviction and the court should have given the instruction in the nature of a demurrer, as there is no evidence upon which to base a verdict of conviction. State v. Wall, 39 Mo. 534; State v. Prendible, 165 Mo. 353; State v. Huff, 161 Mo. 487; State v. Burgdorf, 53 Mo. 65; State v. Primm, 98 Mo. 368.,

      John T. Barker, Attorney-General, and William M. Fitch, Assistant Attorney-General, for the State.
    (1) The corporate existence of this company is not drawn in question and has not become material in the case. It is good pleading to allege the company was incorporated, if it was a corporation, but by Sec. 5230, R. S. 1909, it is expressly provided that the provisions of law in civil cases relative to the enforcement of the limitations and the protection of the rights of the parties shall extend to criminal cases so far as they are in their nature applicable thereto, subject to the provisions in any statute. Applying this rule wé refer the court to Sec. 1985, R. S. 1909, where it is expressly provided, it shall not be necessary to prove the fact of the incorporation of a corporation or the organization and component members of a partnership unless the opposite party put such fact in issue by affidavit filed with the pleadings in the canse, bnt the court will notice that this issue can only be made where the question of incorporation or partnership is-a direct issue in the case. We therefore hold that if such had been a direct issue in this case then the State would not be required to make proof of the incorporation of the company unless the matter had been drawn in issue by an affidavit filed as provided by section 1985, in civil proceedings. But the question of the incorporation of the insurance company is entirely a collateral issue in this case. The only direct issue in the case under the information was whether or not the defendant was guilty of arson as charged in the information. All other questions in the case, aside from this, are mere collateral matters and therefore cannot bear upon this question. (2) Appellant next complains of the first instruction given by the court and cites cases to support his assignment of error. From a reading of those cases and from a careful considerátion of this instruction, we beg to submit that the instruction is not subject to the criticism offered by appellant. In fact, we hold this instruction is absolutely free from criticism and is a flawless’ declaration of the law. (3) Appellant next complains of the failure of the court to submit a proper instruction concerning circumstantial evidence and cites cases thereunder. Instruction number two given by the court comes clearly within the rule announced by the cases. cited by appellant. In fact, the main portion of that instruction is taken from the case of State v. Moxley, 102 Mo. 388, being the case first cited and relied on by appellant. This instruction is well enough and clearly covers the law concerning the source and effect to be given to circumstantial evidence. There was no error on the part of the court in giving same. (4) Defendant next says there is not sufficient testimony in this case to warrant a conviction and complains because the court refused to sustain his demurrer to the evidence in this case. Appellant cites several'cases under this point, hut, without discussing the matter, we respectfully submit that the evidence amply justified the court in submitting the cause to the jury, and is amply sufficient to sustain the finding of the jury and the judgment of the court. We respectfully refer this court to the recent case of State v. Concelia, 250 Mo. 411, and the brief in that case, which was filed on the part of the respondent, where we carefully discussed the weight and force to be given to circumstantial evidence. Upon the rule announced in that case, we are confident that the evidence in this case is abundantly sufficient to sustain the conviction of defendant.
   WILLIAMS, C.

The count of the information upon which defendant was tried charged arson in the third degree, as defined by section 4511, Revised Statutes 1909. Trial was had in the circuit court of Jefferson county, Missouri. Defendant was convicted and his punishment assessed at two years in the penitentiary. The evidence upon the part of the State tends to show the following facts: On the 25th day of January, 1912, and for some months prior thereto, defendant was engaged in running a pool and billiard hall at De Soto, Missouri; about three o’clock a. m., on said day, fire was discovered in said pool room. B. J. Peasley testified that, as he got off a train at the depot in the town of De Soto, he saw the fire break out the front windows of the pool room and that the blaze shot nearly across the street and looked like oil was burning. Mr. Herman Hamel, the owner of the building, testified that defendant occupied the first floor for a pool room and that the second floor was occupied by different offices. The front of the building opened on Main street and just back of the building was a small warehouse and in the rear of the warehouse was á back yard and back of that was the alley ;■ on the north side of the pool room was a bnilding the lower floor of which was occupied by a clothing store and the upper portion as a family residence; the building on the south side of the pool hall was used as a dwelling; the pool room had three doors, a front door, one.back door into the warehouse and a side door which entered the pool hall from an outside hallway. .Witness first went down to the scene of the fire about seven o’clock a. m., and at that time found that the pool tables and billiard tables were nearly destroyed by fire; that there was some kindling around the legs of the pool tables, and that behind the last pool table was an empty whisky barrel containing some coal oil and a pan. Witness further stated that the scent of coal oil was strong in the building’ and that he noticed some oil out in the outside hall and that the pool room floor was burned out. A. J. Blair, justice of the peace and fire insurance agent, testified that on May 1, 1911, he insured defendant’s pool tables and fixtures and delivered to defendant an insurance policy in the Providence-Wasliington Insurance Company, for a term of one year. The total insurance was thirteen hundred dollars, divided as follows: eleven hundred and fifty dollars on four tables, balls, cues, cue racks, cuspidors and chairs; fifty dollars on show eases and stock of cigars; one hundred dollars on lighting plant. The policy provided that, in the event of loss, no table was to be valued at more than two hundred and ten dollars; loss, if any, under the policy, was made payable to the Kansas City Billiard Table Manufacturing Company, mortgagee, as their interest might appear. Before issuing the policy of insurance, the witness looked at the property and ascertained the value of the same for the purpose.of insurance; that he was at the building for a short' time, about eight o ’clock on the morning of the fire, and found the four pool tables badly damaged by the fire and the pool room floor was badly burned and saw the whisky barrel in the pool room. On being asked if lie noticed any coal oil around there, he said: “I don’t know exactly, there was something in a tin can there, and there was something in the barrel with some kindling in there. I suppose there was some water among the coal oil.” He further testified that he noticed some coal oil op the wall in the hallway, to the left of the steps leading upstairs; that he saw some kindling under one of the pool tables; that the defendant lived at the Commercial Hotel, which was eighty or ninety feet south of. the poolhall. That in the rear of the hotel was an incline runway, leading from the alley to the second floor of the hotel, up which trunks were moved to the sample room on the second floor; that at the time of the issuing of the insurance, defendant told him that the tables were mortgaged for six hundred dollars;, that, shortly before the fire, defendant asked witness to find him a buyer for the property; the witness thought defendant made one price of $400. (This was evidently for the defendant’s equity in the property, but the evidence does not so show.) W. A. Welch, chief of the De Soto fire department, testified that he went to the fire and found the front of the room all ablaze and that the flames from the fire shot out about half way across the street. The fire department put the fire out and found that the floor was burned out and the ceiling broken through in several places; some kindling wood was found in the pool room, stacked up around the pool tables and in rows under the tables; that he smelled coal oil in the building and that “it seemed to be everywhere.” He also found a whisky barrel in the back part of the pool room and said that the door going from the pool room into the outside hallway was open. That the defendant came to the fire shortly after the fire department arrived and that witness directed defendant to take hold of one of the nozzles and turn it upon the fire. James Couch, liveryman, and member of the fire department, attended the fire; had charge of the hose in the rear of the building; saw some pine kindling, split up so as to go into a stove, under the pool tables and around the legs. He did not see any oil, in any part of the building, but testified that the building was so badly burned that there was no oil there, except what was in the barrel. John Anderson, a driver of a transfer wagon, testified that some time during the last part of December, 1911, he hauled one half load of kindling for defendant and delivered it at the rear of defendant’s place of business; that it was the same kindling that he hauled for many other citizens of the town at that time of year. A. Rush testified that he was the son of the lady who conducted the Commercial Hotel at De Soto; that defendant lived at the hotel in room twenty-four on the third floor; that a few days before the fire he cut up some kindling for the defendant and stacked the kindling in the warehouse; that he had never seen a coal oil lamp in the pool room; that he saw some of this kindling under the pool tables after the fire; that the door to the sample room on the second floor of the hotel is supposed to be kept closed; that on the night of the fire he occupied room twenty-three at the hotel, which room is separated from the room that defendant occupied by the stairway leading down to the second floor; that he heard nothing during the night, until he heard the porter call the defendant and give the fire alarm and that after he got to the fire he saw the defendant there. That he did not know when defendant went to bed; that the pool room was heated with a coal stove and lighted with gas lights; the gas being supplied by an individual gas plant, the tank of which was in the corner of the pool hall; that the kindling he cut for defendant was for use in the stove and that there was no attempt to conceal the splitting of the kindling; that defendant had nothing to do with the sample room but that the sample room was used for storing canned goods and bed clothes at this time; that there were only two ways to go from the third floor of the hotel to the yard in the rear of the hotel: One way was to go down the front stairs and through the office, the other way was to go down the back steps and through a door leading into the kitchen and then through a door leading from the kitchen into the back yard and that the kitchen door was generally locked. William Spiker, night clerk at the Commercial Hotel, testified that he was on duty as night clerk on the night of the fire; that about one o’clock a. m., defendant came to the hotel and went upstairs to bed; that about three o’clock, witness went up to defendant’s room and knocked on the door; that defendant answered him, and that he told defendant that his pool room was on fire. Witness then went down stairs to the hotel office and after remaining there about five minutes went back up to defendant’s room and kicked on the door; that defendant got up and came to the door and witness told him that his pool room was on fire and that defendant said: “How in the deuce did it get on fire this time of'night?” That thereupon defendant put on his shoes and trousers and then his overcoat and hat and went to the fire. Witness further testified that he was awake and on watch, at the hotel, from the time that defendant went to bed until the fire broke out and was positive in his statement that defendant did not leave the hotel, after he came in at one o’clock, until he called him at three o’clock; that if defendant had gone out of the building by going through the sample room he thought he could have heard him. D. L. Rouggly, a fire insurance agent, testified that he was in the building and found the head of the above mentioned whisky barrel in the cellar, under the pool room. C. K. P'er-due, manager of the Commercial Hotel, testified that a person could go through the old sample room and down the incline at the rear of the hotel into the alley; that the door leading from the back stairs into the kitchen was fastened with a common door lock; that the door leading from the kitchen into the back yard was fastened with a bolt on the inside; that there was nothing to indicate that the door leading from the sample room ont to the incline had been opened that night. F. M. Polk, saloon keeper, identified the empty whisky barrel, which was found in the pool room, as one which he had missed from his place .of business about a month before. . Pat Ennis testified that he was in defendant’s pool room the night of the fire, about 11:30, when defendant “closed up” and that defendant, together with witness and two or three other persons, went to a near-by saloon and from there to a restaurant across from the depot and that the crowd then went over to the depot and that they separated about one o’clock a. m., the respective members of the party going in the directions of their homes; the defendant going toward the hotel. That he did not see the empty whisky barrel in the pool room when defendant closed up. Jake Englehart testified that he was conducting a pool room in Crystal City and that some time before the fire, defendant came to Crystal City, upon the invitation of witness, and witness offered defendant eight hundred dollars for the pool room but defendant refused to take it, saying that he wanted more. Charley Burrus testified that he was engaged in running a pool hall at De Soto and that about two months before the fire defendant offered to sell him his equity in the place-for seven hundred dollars, saying that there was a mortgage against it for five hundred dollars and that would make the total selling price twelve hundred dollars. Robert Filkins testified that he was in defendant’s pool room when it was closed for the night, about ll-:30, and that he did not see the whisky barrel in the pool room at that time. Ralph Carson testified' that the whisky barrel was not in the pool room on-the evening before the fire. George Mahn, a real estate dealer, testified that in June, 1911, defendant wanted to borrow some money from Mm to make some montMy payment on the pool tables, saying* that business was dull at that time and that he had not made enough to make bis monthly payment, but witness would not make the loan. Ed Alderson, city marshal of De Soto, testified that be arrested defendant at two p. m., on the day of the fire, and that upon being arrested defendant said: “That is b — ; 1 guess I am in for it now,” and that a little later defendant pássed Charley Perdue and said, “Charley, by (1 — , they’ve got me.” This was all the evidence introduced by the State. The defendant then introduced the following testimony: Prank Moon, night marshal of the city of De Soto, said that be saw the defendant, with several other fellows, at the restaurant and depot, on the night of the fire, and that about five minutes before one o ’clock be met the defendant about one-balf block from, and going toward, the Commercial Hotel; that be saw the fire about the time that it broke out, at three a. m., and ran across the street to the restaurant and called the fire department and then ran up to the pool ball and looked to see if there was anyone around the building and then went to the hotel and saw the night clerk sitting behind the cigar case which was about the center of the office in the hotel and just beneath the sample room on the second floor. Witness told the night clerk to go up and call the defendant; that the night clerk first tried to get central, but being unable to do so immediately, ran upstairs to arouse defendant. Harry Maupin testified that be was one of the fellows in defendant’s place of business at closing time and that the defendant and the others went from the pool ball to the saloon, then to the depot and restaurant. Defendant took the stand in bis own behalf and testified that since April, 1912, he bad been traveling for the Kansas City Billiard Table Manufacturing Company; denied setting fire to the pool tables and denied having any connection with the cause of the fire, and said that he had no knowledge of the fire until the night clerk knocked on his door; that he went to bed at one o’clock and never left his room until the night clerk called him at three o’clock. Defendant was not cross-examined. That was all the evidence in the case and defendant renewed his request for a peremptory instruction which the court overruled, and to which ruling defendant saved an exception.

OPINION.

I. It is contended that the evidence fails to prove that the Washington-Providence Insurance Company was a corporation and that it was necessary for the State to prove that fact. In prosecutions for arson in the third degree as defined by section 4511, Revised Statutes 1909, it is not necessary to prove that the insurer is a corporation. [State v. Steinkraus, 244 Mo. 152, and cases therein cited.]

II. It is next contended that the evidence is not sufficient to sustain the conviction. Because of the fact that this is the important question involved in this appeal, we have, in the foregoing statement of facts, set forth the evidence more in detail than would be necessary were the sufficiency of the evidence not involved.

The testimony as to the odor of coal oil in the burning premises and the arrangement of the kindling about the pool tables, would tend to show that the fire was caused by a criminal agency rather than by natural or accidental causes^

The evidence also tends to show that, at the time of the fire, the insurance upon the pool tables was in excess of the price at which defendant had recently offered to sell. This was some evidence of a motive upon the part of the defendant to do the criminal act. There was also some evidence that “if” defendant liad gone with his shoes off, he might have been able to go from his room oh the third floor of the hotel down the stairway to the second floor and out through the sample room thereon located and from there down the incline to the alley, in the rear of the hotel, without being detected by the night clerk of the hotel. This, at most, would only show a possible opportunity the defendant had to commit the crime without being detected. But is the mere fact that defendant had a motive for causing the fire, and a possible opportunity to have carried out such a motive, a sufficient showing to warrant the jury in finding that, in fact, he did carry out such motive and cause said fire. We think that such a showing is not sufficient. Evidence of motive *s a^m^ss^e> as furnishing one link in the chain of circumstances, tending to establish guilt, but mere showing of motive, uncorroborated by other facts and circumstances inconsistent with innocence, is not sufficient prima-facie showing to authorize the submission of defendant’s guilt to the jury.' It would be a rather unjust and dangerous rule that held that the mere showing of motive and opportunity would overcome the presumption of defendant’s innocence and establish, beyond a reasonable doubt, his participation in the criminal act. Aside from the showing of a possible motive, there is no other fact or circumstance which, in any way, points towards defendant’s guilt. On the other hand, the State’s own evidence tends to show that the defendant did not cause the fire. The evidence shows that at about three o’clock a. m. the flames burst out suddenly, indicating the presence of oil and therefore a quick fire; that defendant left the pool hall at closing time, in company with some of the State’s witnesses and after an hour or two of time, all of which is fully accounted for, the defendant entered the hotel at one o’clock a. m.r and did not again leave the hotel until he was awakened by the night clerk at three a. m. and informed that his pool room was on fire.

It may be admitted that the finger of suspicion might point to the defendant, but, as was-well said in the case of State v. Jones, 106-Mo. 302: “Mere suspicion, however strong,'will not supply the place of evidence when life or liberty is-at stake. ’ ’

Furthermore, “The rule in criminal cases unqualifiedly is that the burden of proof never rests on the accused to show his innocence or to disprove the facts necessary to establish crime with which he is charged. The defendant’s presence at and his participation in the corpus delicti are affirmative material facts that the prosecution must show to sustain a conviction.” [Wharton’s Criminal Evidence (10 Ed.), sec. 160a.]

In discussing the weight to be given evidence showing a motive the same learned author says: ‘1 The presence or absence of motive in cases depending wholly on circumstantial evidence is not.a factor that determines either the guilt or innocence of the accused. Proof of motive does not establish guilt nor want of it establish innocence!” [Id., sec. 878.]

In the case of State v. Morney, 196 Mo. 43, in discussing the sufficiency of circumstantial evidence to sustain a conviction of arson, the court, speaking through Burgess, P.. J., said: “It matters not that there was no evidence to show that some other person than defendant committed the crime. That there was opportunity for some other to do so cannot be gainsaid. Taking all the facts in evidence, they do not even make out a prima-facie case against the defendant. He was not shown to have been guilty of any incriminating act and it requires stronger and more cogent circumstantial evidence of his guilt than was adduced upon the trial in order to maintain the judgment. . . . Where a chain of circumstances leads up to and establishes a state of facts inconsistent with any theory other than the guilt of the accused, such evidence is entitled to as much weight as any other kind of evidence but the chain, as it were, must be unbroken- and the facts and circumstances disclosed and relied upon must be irreconcilable with the innocence of the accused in order to justify his conviction. In this ease there was an entire absence of one important link in the chain of evidence; that is, there was no evidence that the defendant was present at the building at the time it was fired. At most the evidence -adduced only raised a suspicion against the defendant, and under such circumstances no conviction for crime should be allowed to stand.”

All the facts and circumstances shown by the State’s evidence could exist and yet the defendant be innocent of any crime. The evidence as a whole leaves too much room for doubt and mistake and does not possess sufficient proof of guilt to authorize the State to deprive defendant of his liberty.

If upon another trial the State is not able to produce additional evidence of defendant’s guilt the trial court should direct an acquittal.

The judgment is reversed and the cause remanded.

Roy, C., concurs.

PER CURIAM. — The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: ROY, C.

license: Public Domain

text:
    ANNIE WING et al., Appellants, v. FRANK HAVELIK, Jr.
    Division Two,
    December 9, 1913.
    1. DEED: Evidence: Grantor’s Mental Condition. Evidence in an action to set aside a deed held sufficient to show that the-grantor was of sound mind.
    2. -: -: Grantee: Undue Influence. Evidence in an action to set aside a deed held not to show any undue influence exerted by the grantee or his wife.
    3. -: Consideration: Agreement to Care for Grantors. An oral contemporaneous agreement by the grantee to care for • the grantors when past caring fpr themselves, and its performance, is sufficient consideration to support a conveyance of real estate.
    4. -; Undue Influence: May be Exerted by Whom. Undue influence is not only that exerted by the beneficiary; a deed may be set aside when obtained by undue influence exerted by a person other than the grantee.
    5. -: -: Exerted by Weaker Mind: Evidence. Evidence in an action to set aside a deed from parents to a son on the ground that the father’s will was overcome by that of the mothf — , who was not of sound mind, held, not sufficient to establish undue influence.
    Appeal from Lincoln Circuit Court. — Eon. Jamies D. Barnett, Judge.
    Affirmed.

      Frank Hotvell and William A. Dudley for appellants.
    (1) The deed is the direct product of undue influence, duress and fraud and should be set aside. 1 Page on Contracts, secs. 204, 322; Bishop on Contracts, sec. 719; Smith on Fraud, sec. 103; Dingman v. Romine, 141 Mo. 466; Meier v. Buchter, 197 Mo. 91; Mann, Medical Jurisprudence of Insanity, p. 161.. (2) Even though Frank Havelik, Jr., had no knowledge of the influences that operated on the parties to induce the conveyance to him, there being no consideration, the conveyance was void and should be set aside. Ranken v. Patton, 65 Mo. 378; Roberts v. Bartlett, 190 Mo. 702; Nottidge v. Prince, 2 Clifford, 246 -, Huguenin v. Baseley, 14 Yesey, Jr., 273; Fowler v. Butterly, 78 N. Y. 71; Sheperherd’s Touchstone, 61; Caspiri v. Church, 82 Mo. 649 ; Thompson v. Hawks, 14 Fed. 902; 1 Page on Contracts, 472; Harris v. Carmody, 131 Mass. 51.

      R. II. Norton and Avery, Young & Woolfolk for respondent.
   ROY, C.

This is a proceeding to nullify a conveyance on the ground of unsoundness of mind an(^ undue influence.

Frank Havelik and wife, Kate, were Bohemians, not understanding English. They had four children, Frank, Jr., Mrs. Krieger, Mrs. Annie Wing and Mrs. Schromek; the latter being dead, leaving one child, Mrs. Anderson. All were made parties to this proceeding.

In January, 1883, the parents were living on a farm of about one hundred and forty acres, worth not exceeding twelve hundred dollars. They lived in a two-room log house. Frank, Jr., was young and had been hired out. ' He married at that time and went to live with his parents on the farm, and received a deed from them for the land, which provided that all parties thereto should live in the dwelling on the land during the life of the grantors, who should be paid one-third of all the grain raised on the place.

Disagreements arose, and in the following September the parents built and moved into another house on the farm. Disagreements continued, and after some time Frank moved away. After several years he moved back and remained until 1889. The troubles continuing, he made'a conveyance of the land to his father and Mike Yocum, a brother of his mother, who lived on the farm. The deed expressed a.consideration of four hundred dollars. Frank then bought a place twelve miles distant, to which he moved his family.

Mrs. Wing testified as follows: “I reckon my uncle had money in the place, over half of it, wasn’t more. He got it in the place, in St. Louis, in lots and buildings, when that was sold my pa kept the money and never give him any of it; they would borrow money and never give it back. -It went into the farm, that’s how come it to be his home as long as he was living. They bought the place from Frank, paid him $400 for it. A long time ago father and mother made Frank a deed to it; about 1882. He got the farm for the support of my parents as long as they were living — they'did it the same month he got married, in January, don’t remember what year. Lived there mighty little before he was married; he was hired out. Frank, my brother, deeded it back to father and Mike Yocum in 1889. Frank got it from them and deeded it back to father and uncle. They didn’t get along well and Frank deeded it back. He had one child when they left. Frank had the place — they couldn’t get along. Joe Shelker married one daughter and he moved there and Frank moved on his place. Joe staid until he got tired of waiting on my parents and went to his own farm and Frank moved back. I don’t know how many years they lived there, they couldn’t get along and pa bought the place back, I lived with father first year I was married. Frank was a little boy then. They wanted to deed, us the farm. We was young folks and wouldn’t take it. Frank said he was going to sell it back, and he did so and went off where he is now. Don’t remember the year Frank made the deed back to father and uncle. Father paid $100 and uncle' paid $300. . Heard that from my. father and uncle.”

In 1897 the parents and Yocum reconveyed to Frank for the expressed consideration of $230. No money was paid. That deed contained a provision that the grantors should occupy the dwelling during their natural lives.

Mike Domaelky testified that three times pior to the making of that deed, the father came to him to get him to induce Frank to take a deed to the land, saying that he knew his son Frank was swindled, and that he wanted to fix it; that they had done Frank what wasn’t right and they wanted to correct it; that Frank had done lots of work on the land and they wanted to give him a deed back to the property. He further testified that the deed was made upon an agreement talked over at the time that the old folks should take care of themselves- as long as they could and then Frank would assist them. He testified that the father was of sound mind.

Frank Martinek was present at the making of the deed at the request of the elder Havelik and testified that Havelik was of sound mind.

Joe Martinek and his wife and Mrs. Annie'Martinek and Mrs. Wing and daughter, Mrs. Chaney, all testified that Mrs. Kate Havelik was subject to short spells, during which she imagined that she was bewitched by her son Frank and his wife, and was very wild and irrational, imitating cries of various animals and cursing and abusing her husband; that she often importuned her husband to make a deed to the land to Frank, so that Frank and his wife would relieve her of her troubles.

Mrs. Joe Martinek testified that Mr. Havelik said that his wife was hard to do anything with; that she wanted him to deed the property to his son, so she would get rid of that trouble and that sickness; that she was mean to him, hard on him and he could not get along with her.

Mrs. Chaney .testified that her grandmother had those spells five or six years before the deed was made and that she frequently sent her husband to induce Frank to take a deed for the place; that he didn’t want to go and that he believed his wife was bewitched.

Mrs. Wing testified that her father believed that her mother was bewitched by Frank and his wife and that on two occasions she prevented him from drowning himself because of his troubles with her.

Frank Knizel, in regard to the senior Havelik’s mind, testified as follows.: “Well, the fact is I eould'n’t decide on that matter. I said once I thought there was certain delusions the old lady had that was working on his mind; they worked on his mind and he had no thought of anything else; other times I thought he was as bright a man as any at his age. ’ ’

Joseph Martinek testified that Mrs. Havelik said that Frank’s wife was the cause of her trouble, and that she kept after the old gentleman to give the land back to Frank, so that would cure her. That Mr. Havelik would sometimes think she was bewitched and sometimes would talk like he thought she wasn’t; that he was a sensible, smart man, but could not write.

Frank Havelik, senior, died .in 1900. Mr. Yo-cum died the following year. After the death of Mr. Yocum, Frank took his mother and cared for her until her death in 1906.

The petition alleges that the minds of the elder Haveliks • were unsound, and that Mrs. Havelik imagined she was bewitched by Frank and his wife and that they could relieve her of such trouble, and that they would do so provided the land was conveyed to Frank. The petition then continues as follows:

“And she thereupon so importuned and persuaded Frank Havelik, Sr., to so convey said land and give the same to her said son, the defendant, that he by reason of his old age and feeble mind also became possessed of the belief so entertained by said Katherine; that said Frank Havelik, Jr., knowing all of the aforesaid facts, fraudulently intending to procure said land for himself without consideration, and to cheat and deprive said Frank Havelik, Sr., and Katherine Havelik of their interest in said land and to cheat and defraud these plaintiffs of their apparent interest,- as heirs of said Frank Havelik, Sr., fraudulently encouraged and promoted the delusion and belief aforesaid of his parents and by means thereof and of undue influence, duress and force exerted by him and his wife fraudulently induced them to make and execute a deed conveying to him the lands aforesaid. ’ ’

The evidence conclusively shows that the mind of Frank Havelik, Sr., was sound, and,there is no evidence tending to show that the defendant or his wife exerted influence of any kind to procure the deed.

The original petition alleged that the deed of 1897 was executed by Havelik and wife. During the trial the petition was amended by inserting the allegation that Vocum was one of the grantors. The pleadings make no showing as to who were the heirs of Vocum. We shall treat the case as one to set aside a conveyance of an undivided half of the property. At the close of the plaintiff’s evidence, the court found for the defendant and dismissed plaintiff’s bill and they have appealed.

The evidence is almost all in favor of the soundness of the mind of Frank Havelik, Sr., and •we agree with the trial court that he was of sound mind. The question as to whether Mrs. Kate Hevelik was competent to make a deed need not be considered, as her interest in the land died with her.

The plaintiffs utterly failed to make a case of undue influence on the part of the defendant or his. wife as charged in the petition. However, they .have chosen to brief the case in this court on the theory that the petition charged undue influence exerted by-Mrs. Kate Havelik over the mind of her husband, and we shall so consider it.

I. Appellants say that even though the defendant had no knowledge of the influence that operated on the parties to induce the conveyance to him, there being no consideration, the conveyance is void and should be set aside.

It appears in this case from' the evidence introduced by the plaintiffs that there was a consideration ^or deed. Erank orally agreed at the time that when the old people could not care for themselves he would assist them. After the death of his father and uncle, in accordance with his-agreement, he took his mother and cared for her until her death.

II. It may be conceded that a deed will be set aside when obtained by the undue influence of a person other than the grantee. [Dingman v. Romine, 141 Mo. 466.]

In this case it is contended that undue influence-was exerted by Mrs. Havelik, one of the grantors. 39 Cyc., p. 681, defines undue influence as “A coercion produced by importunity, or by a silent, resistless-power, which the strong will often exercises over the weak and infirm, and which could not be resisted, so-that the motive was tantamount to force or fear; whatever destroys free agency, and constrains the person-whose act is brought in judgment to do what is against his will, and what he would not have done if left to himself; that which overpowers the will without con-' vincing the judgment; ah influence which acts to the injury of the person who is swayed by it, or of those whom he would, if left to himself, have benefited.”

In Dingman v. Romine, supra, l. c. 474, it was said: “Any influence, however exercised, which destroys free agency and substitutes the will of another for that of the person in whose name the act brought in .judgment is done is undue or wrongful. ’ ’

The contention of the plaintiffs herein is unusual and peculiar in this: They contend that the will of the husband was overcome by that of his wife who is •conceded to have been of unsound mind. They claim that the strong was overcome by the weak, that his will was overcome by one who had no rational will.

We do not hold that in no case can the instrument be set aside because of undue influence by the weaker upon the stronger. We are of the opinion that the trial court was right in finding for the defendant on the merits.

Mrs. Wing’s testimony shows that as early as 1883 her parents offered her a deed to the property. Their purpose in making such offer was doubtless the same as that entertained by them when they made the first deed to Frank. Neither of them was then of impaired intellect. It seemed to be a continuous desire on the part of the parents to convey the farm to one -of their children for the support of the grantors in old age. Frank conveyed the farm back to his parents in 1889 and reluctantly accepted the deed of 1897. The testimony of Mike Domaclky showing that the father insisted upon repairing the wrong done to his son by making the last deed and that such deed was made upon Frank’s agreement to care for the grantors cannot be ignored. It was introduced by the plaintiff. It is ■consistent with the father’s conduct for fourteen years prior thereto. We are impressed with the fact that the uncle also joined in making that deed. No undue influence is alleged or proved as to him. It is not charged that he was of unsound mind.

This is a case where much deference should be shown to the finding of the trial court. The witnesses were present and testified, and their demeanor was observed by the chancellor. We are satisfied that his finding and decree are right, and affirm the judgment.

Williams, G., concurs.

PER CURIAM. — The foregoing opinion of Roy, 0., is. adopted as the opinion of the court. crime of grand larceny, by stealing from the person,

All the judges concur.


text:
    THE STATE v. SIDNEY GORDON, Appellant.
    Division Two,
    December 9, 1913.
    1. LARCENY: Evidence: Showing Defendant’s Presence. Where in a prosecution for grand larceny the evidence tended to show that defendant boarded a street car, pulling and pushing a great deal, and meanwhile took a passenger’s pocketbook from his hip pocket, there was no error in admitting testimony that a few minutes before that time, and near the same place, defendant had pushed in between the witness and his father on the platform of another car. The evidence was properly admitted for the purpose of showing defendant’s presence at or near the scene of the crime a short time prior to its commission, and it is not sufficient objection to say that it might prove the commission or attempted commission of another crime.
    2. -: Argument: Remarks of Prosecutor: Withih the Record. Although such conduct is not to be commended, it was not error for the prosecutor, where the evidence tended to show that defendant was guilty of larceny and was not a resident of that city, to call defendant in his argument “a foreign thief.”
    3. -: -: -: Defendant’s Failure to Testify. Where a witness for the State in a prosecution for grand larceny was not present, but his testimony at a previous trial was introduced by consent, it was not error for the prosecutor to say in his argument: “[The witness] was not able to be here and we had to introduce his testimony and that testimony is conclusive and not contradicted by any evidence.” The remark had no reference to defendant’s failure to testify in his own behalf.

      Appeal from St.' Louis City Circuit Court. — Hon. James E. Withrow, Judge.
    Affirmed.

      W. Blodgett Priest for appellant; Matt. Holland, Chauncey H. Clarke and Otto Karbe of counsel.
    (1) The court committed reversible error in allowing William 0. Schmidt, a.witness for the State, to testify over defendant’s objection as to what occurred between defendant and Schmidt’s father before the offense in issue occurred, therein indicating and insinuating that defendant had committed, or attempted to commit a crime on the witness’s father, as well as the offense in issue. State v. Speyer, 207 Mo. 543. (2) The prosecuting attorney was guilty of making unlawful remarks in his closing argument to the jury, which he was allowed to do by the court, over defendant’s objection? These remarks were abusive, constituted an appeal to passion and prejudice, and imputed other and prior acts of thievery to the defendant, which were dehors the record, thereby constituting reversible error. State v. Fischer, 124-Mo. 464; State v. Lee, 66 Mo. 168; State v. Jones, 249 Mo. 80; State v. Phillips, 233 Mo. 306; Ferguson v. State, 44 Ind. 33.

      John T. Barker, Attorney-General, and 8. P. Howell for the State.
    (1) Evidence was admitted showing that defendant had pushed and jostled other persons, but the jury was specifically instructed to disregard such testimony except for the purpose of showing defendant’s presence in the neighborhood at the time the larceny is alleged to have been committed. Furthermore, evidence tending to show the commission of other offenses is admissible where the identity of the defendant is one of the controverted questions before tbe jury. State v. Hubbard, 201 Mo. 641; State v. Spaugb, 200 Mo. 594-; State v. Toohey, 203 Mo. 674; State v. Collins, 181 Mo. 260; State v. Jones, 171 Mo. 407; State v. Bates, 182 Mo. 70; State v. Bell, 212 Mo. 124; State v. Newman, 245 Mo. 498. (2) Remarks of Prosecutor, (a) Tbe court did not err in failing to sufficiently rebuke tbe circuit attorney for stating in argument to tbe jury that: .“Mr. Biscboff was not able to be here and we bad to introduce bis testimony, and that testimony is conclusive and not contradicted by any evidence.” Tbis remark, read in tbe light of tbe testimony given by the witness Biscboff was merely an expression as to tbe strength of tbe States evidence. Tbe circuit attorney was giving to the jury 'the resultant of all tbe evidence that bad been submitted during the trial, and bis statement is substantiated by tbe testimony adduced, namely, that tbe fact of tbe commission of tbe larceny, as testified to by Biscboff, was uncontradieted. It cannot be reasonably inferred that the remark was intended as a reference to tbe failure of defendant to testify in tbe case. Tbis court has frequently held it permissible for prosecuting attorneys in argument to give a- summary of tbe evidence to tbe jury, indicating tbe points disputed and those remaining uncontradieted, so long as such argument cannot, by reasonable inference be interpreted as a direct reference to defendant’s failure to take tbe stand in bis own defense. State v. Ruck, 194 Mo. 440; State v. Fields, 234 Mo. 625; State v. Preston, 77 Mo. 296; State v. Miles, 199 Mo. 551; State v. Faugbt, 140' Mo. App. 373;. State v. Donaldson, 243 Mo. 478. (b) Evidence bad been adduced to establish tbe larceny as charged, and that tbe defendant bad but recently arrived in St. Louis from Chicago. Where evidence introduced forms tbe basis of and warrants tbe comment of counsel, it is not reversible error. State v. Dyer, 139 Mo. 199; State v. G-riffen, 87 Mo. 615; State v. Cummings, 189 Mo. 644; State v. G-artrell, 171 Mo. 511; State v. Rasco, 239 Mo. 579; State v. Jones, 249 Mo. 98; State V. Allen, 174 Mo. 698; State v. Ferrell, 246 Mo. 336; State v. Hilton, 248 Mo. 534.
   WILLIAMS, C.

Defendant was charged with the as defined by section 4538, Revised Statutes 1909, amended by Laws of Missouri 1911, at page 193. Upon a trial had in the circuit court of the city of St. Louis, defendant was found guilty and his punishment assessed at three and one-half years in the penitentiary. The State’s evidence tends to show the following facts: The alleged crime occurred on October 7, 1912, near the corner of Eighteenth and Market streets, in the city of St. Louis. One Charles H. Robnett came into the Union Depot on an early morning train, and, just before getting off the train, examined his pocketbook and counted his money, which amounted to sixty-three dollars. He then placed his pocketbook, which he says was a black one, crosswise in his left hip pocket and came through the Union Depot, and up to the comer of the above named streets for the purpose of taking a north-bound Eighteenth street car to his home. While waiting for the car, he felt the pocketbook in his pocket and noticed the time from the depot clock to be 7:35 a. m. In a minute or two he got upon an Eighteenth street car going north. He boarded the car on the east side of Eighteenth street and just south of Market street and at a point very near a fruit stand conducted by one Bischoff. Just as Robnett attempted to board the car, one Robert Webster “swung in ahead” of him and boarded the car; Robnett followed and just back of Robnett came the defendant Gordon. Robnett noticed some pushing and jostling on the back platform and felt the defendant pushing against him, apparently trying to get upon the hack platform which was crowded. When the car reached Eighteenth and Olive street, defendant and said Webster got off of said car, without paying their fare, and they, in company with a third person named Albers, turned east on Olive street. After the car passed Olive street, Mr. Robnett entered the car and took a seat — riding to a point near his house. When Robnett reached his home it was discovered that his left hip pocket was turned wrong side out and his pocketbook and money gone. He reported this fact to the police department, giving them descriptions of the persons on the platform of the car and about two p. m. of that day defendant and Webster and two others were arrested. Defendant was identified by Robnett as being the man who got on the car behind him and pushed against him. Louis Schmidt and son William testified that they saw the defendant and a man by the name of Webster board a Market street car, going east, at the comer of Market and Eighteenth streets, about 7:30 on the same morning, and that defendant crowded his way in between the father and son and then left the car before it had crossed Eighteenth street, and that Webster rode to Seventeenth street before leaving the car. These two witnesses testified that their attention was called to defendant by reason of his shoving and pushing. Jacob C. Bischoff testified that he was in charge of the fruit stand at 18 South Eighteenth street, within a few feet of where prosecuting witness boarded the northbound Eighteenth street car, and that about fifteen minutes after seven o ’clock that morning he noticed defendant standing in front of his fruit stand; and witness asked defendant to stand out of the way so that people could see his fruit; that he noticed defendant get on a street car and after riding* a short distance get off and come back to the corner and get on a second time and repeat the same action* that his attention was attracted to defendant; that about-7:30 a. m. he noticed defendant get on a north-' bound Eighteenth street car and saw him stand on the first step, holding on to the handrail with his right hand and taking a black pocketbook from the left hip pocket of the man in front of him with his left hand; and that defendant remained on the car, as the car passed up the street, and out of witness’s sight. Witness did not know the man whose pocketbook was stolen and said that he was not able to identify him. The witness said that the man whose pocketbook was stolen was wearing black clothes and the man who took the pocketbook was wearing brown clothes. About noon on the same day the witness told two police officers that he had seen the pocket picked and described the man. Detective McKenna testified that he arrested defendant, on the day of the theft, at the Princess Hotel, which was about one hundred and fifty feet from the corner of Eighteenth and Market streets in the city of St. Louis. When arrested, defendant said that he and Webster had been in St. Louis three or four days and had come to St. Louis from Chicago. The evidence on the part of the defendant was to the following effect: The street car conductor, in charge of the north-bound Eighteenth street car, upon which prosecuting witness-rode to his home, testified that he saw prosecuting; witness on the car that morning but did not notice defendant on the car. The conductor was not acquainted^ with defendant. A bell boy at the Princess Hotel testified that defendant and another man came to the hotel, about two o’clock a. m., on October 7, 1912, and left a call for nine o’clock that morning; that about 9:30 a. m. he took some coffee to defendant in his room,, and that he did not see the defendant between two a., m. and 9:30 a. m. that morning. The night clerk at the Princess Hotel testified that he was on duty from midnight until noon on that day; that defendant came in and went to bed about two a. m. on that day, and that he did not see him again until about 10:30 a. m. on the same day, at which time defendant returned the key to the desk and that it was the day before the Veiled Prophet’s parade and that a great many people were stopping at the hotel.

OPINION.

I. It is urged that error was committed in permitting witness William O. Schmidt, over defendant’s objection and exception, to testify that a few minutes before the alleged theft, defend ant, while on the back platform of another car near the place where the theft is supposed to have occurred, pushed or shoved himself in between the witness and his father. The objection urged against said testimony is that it tends to “indicate and insinuóte” that defendant was attempting to commit another crime and therefore should have been excluded.

The question as to whether defendant was near the place of the alleged theft at the time of its occurrence was one of the important issues in the case. Defendant’s evidence tended to establish an alibi. The above evidence tended to establish defendant’s presence in the vicinity of the crime a short time prior thereto. The evidence as ,to the pushing tended to explain how the attention of the witness was called to defendant’s presence and made more plausible and convincing the witness’s statement that he was able to remember and identify defendant, whom he had never seen prior to the incident on the car platform.

The evidence was properly admitted for the purpose of showing defendant’s presence at, or near, the scene of the crime a short time prior thereto, and was therefore, when considered with the other facts and circumstances in the case, some evidence tending to establish the identity of defendant as the person who committed the alleged theft. It is not a sufficient objection to evidence otherwise admissible to say that it might prove the commission or attempted commission of another crime. [State v. Spaugh, 200 Mo. 571, l. c. 594; State v. Bell, 212 Mo. 111; State v. Collins, 181 Mo. 235, l. c. 260.] The court, by instruction, properly told the jury that they could consider the testimony for no other purpose than that of determining whether or not defendant was in that locality at about the time the offense charged in the information was alleged to have taken place.

IT. During the closing argument the prosecuting attorney referred to defendant as a “foreign thief.” To this remark defendant objected and save<l 811 exception to the failure of the court to rebuke counsel and to admonish the jury not to regard the statement.

The evidence tended to show that defendant was guilty of larceny and that he was not a resident of St. Louis, but had just arrived at St. Louis, coming from Chicago. "When the remarks of the prosecutor refer to matters shown by the proof his conduct in that regard does not constitute reversible error. [State v. Griffen, 87 Mo. 608; State v. Allen, 174 Mo. 689; State v. Rasco, 239 Mo. 535.] In this connection, however, it should be stated that conduct of this kind upon the-part of the prosecuting attorney is not to be commended or encouraged. Many cases are reversed because prosecutors overstep the bounds of legitimate argument. And in many cases it is difficult to weigh the effect that such remarks may or may not have had in influencing the jury in arriving at their verdict. In all cases the wiser and much the safer course for the prosecutor to pursue is to confine his remarks to a fair discussion of the evidence and not indulge in the use of epithets or personal abuse.

Exception was also saved to the court’s failure to rebuke counsel and instruct the jury to disregard the further statement made by the prosecutor in the course of his argument, viz.: ‘ ‘ Mr. Bischoif was not able to foe here and we had to introduce his testimony and that testimony is conclusive and not contradicted by any evidence. ’ ’ The ‘‘ Mr. Bischoif’ ’ to whom reference is here made is the man who conducted the fruit stand near the corner of Eighteenth and Market streets, in the city of St. Louis. The witness was not present at the trial, but his testimony, given at a former trial, was, by consent of the parties, read to the jury by the official stenographer. Appellant insists that this remark was a direct reference to defendant’s failure to testify in his own behalf. We cannot agree with appellant’s contention. This was in the nature of'a general comment as to the weight and effect of the evidence of the witness Bischoff and it would be a forced construction that would interpret it as a reference to defendant’s failure to testify. The statement is quite different from the one made in State v. Snyder, 182 Mo. 523, which was held to be error. In the case of State v. Ruck, 194 Mo. 416, the prosecutor in his argument to the jury said: “Here we have testimony undenied, undisputed by no living or unliving witness.” In that case it was held that the statement did not violate the inhibition of the statute against referring to the failure of the defendant to testify. To the same effect is State v. Fields, 234 Mo. 615.

The judgment is affirmed.

Roy, C., concurs.

PER CURIAM.- — -The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur.


author: •WILLIAMS, C.

text:
    THE STATE v. SAMUEL PRINTZ, Appellant.
    Division Two,
    December 9, 1913.
    APPEAL: No Bill of Exceptions. When no bill of exceptions is filed in a case, the appellate review is limited to the record proper, and if that is free from error the judgment will be affirmed.
    Appeal from St. Lonis City Circuit Court. — How. George G. Hitchcock, Judge.
    Affirmed.

      C. Orrick Bishop for appellant.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
   •WILLIAMS, C.

Upon an information charging defendant with receiving stolen property of the value of twelve hundred dollars, defendant was tried and convicted in the circuit court of tlm city of St. Louis, Missouri, the jury assessing his punishment at three years in the penitentiary.

Motions for new trial and in arrest of judgment were filed and overruled and the defendant Appealed, but failed to file his hill of exceptions in the cause. The appellate review is therefore limited to the record proper. Upon careful inspection of the information and other parts of the record proper, we find the same to he in due and proper form and free from error.

The judgment is affirmed.

Roy, G., concurs.

PER CURIAM. — The foregoing opinion by Williams, C., is adopted as the opinion of the court.

All the judges concur.


author: LAMM, C. J.

text:
    In Re BOARD OF COMMISSIONERS OF TUBERCULOSIS HOSPITAL DISTRICT OF BUCHANAN COUNTY, Appellant, v. JAMES J. PETER.
    In Banc,
    December 24, 1913.
    1. CONSTITUTIONALITY OF STATUTE: Presumption: Attitude of Courts. Courts, out of a solemn respect to the lawmaker, never impute to him an intention to circumvent, abrogate or impair a constitutional provision; hence they approach the question of the constitutionality of a statute with great caution, view it from all angles and from all its aspects, giving free play to a strong (even violent) presumption in favor of its validity, and never declare it void unless its invalidity is, in their judgment, placed beyond a reasonable doubt; and, hence, every benign rule of construction is allowed and astutely levied upon and exercised in so interpreting the statute, if possible in reason, that none of its parts perish; But if, when all is done for it that can be done in reason, it appears that there cannot be any two ways about it but that the statute is in violation of the Constitution, it will be declared void.
    2. -: Power to Declare Legislative Act Unconstitutional Lodged in Courts. To declare a statute unconstitutional is the exercise of a high and delicate, but necessary, judicial power, to be fearlessly used if need calls and there is no way out of it. In no other way known to intelligent men can a government by written constitution exist except there be power somewhere to make statutes square with that instrument, and to say whether or not they do.' That high power is now lodged with the courts, there it has been for generations and there it must remain until the people by the exercise of their sovereign will, expressed in a constitutional way, take it away and lodge it elsewhere.
    3. -: Affection for Its Benign Purpose. Judges must labor to make a covenant with themselves that affection for the benign purposes of a statute and sympathy for those whose affliction it was designed to alleviate or cure, do not press upon judgment and lead them away from the paths of cold reason.
    4. -: Tuberculosis Act: Public Purpose. The Act of 1913, authorizing a levy of a tax of twenty-five cents on the hundred dollars valuation of all property in a county for the maintenance of a tuberculosis hospital, is not violative of that part of the Constitution (Sec. 3, art. 10) declaring that “taxes may be levied and collected for public purposes only.” The tax is for a public purpose.
    5. -: Levied by Hospital District. The Act of 1911 in so far as it granted to the board - of commissioners of a tuberculosis hospital district the power to levy taxes on all property in a county for the erection and maintenance of a hospital was a palpable violation of the provision in the Constitution (Sec. 1, art. 10) declaring that “the taxing power may be exercised by the General Assembly for State purposes, and by counties and other municipal corporations, under authority granted to them by the General Assembly, for State purposes, and by counties and other municipal corporations, under authority granted to them by the General Assembly, for county and other corporate purposes.” The hospital district is not a municipal corporation.
    6. TAXATION: Meaning of Levy. The word “levy” expresses a concept inseparably and intrinsically connected with the taxing power; but where the same act declaring that a hospital board may levy a tax in a given amount also requires the avouchment of the county court and a levy by that body as a condition precedent to the consummation of a legal tax levy, the act will be interpreted to mean that the court must make the levy, and the word “levy” used in connection with the board construed to require a mere preliminary order or requisition evidencing the official action of the board upon the amount of levy necessary for hospital purposes.
    7. -: Corporate Purposes: May Mean County Purposes: Hospital. The words “corporate purposes” used in section 1 of article 10 of the Constitution, declaring that “the taxing power may be exercised ... by counties and other municipal corporations, under authority granted to them by the General Assembly, for county and other corporate purposes” are a broad term and are to be broadly construed; and the court declines to say that they do not mean a county purpose or a city purpose, as the case may be, and also declines to say that a statutory scheme involving the prevention and cure of infectious diseases imperiously menacing the public health, and the care of those afflicted therewith, who are indigent, at public expense, in the same public hospital with those who can and are required to pay, is not such an essential part of the public welfare as would become a “corporate purpose,” that is, a county purpose, within the fair intendment of this broad constitutional term. But it does hold that unless an act which authorizes the board of such a public hospital to levy a tax upon all the property in the county for its maintenance contemplates a corporate or county purpose, it has no constitutional warrant whatever.

      8. --: Usual County Purposes. Roads, bridges, the care of paupers, prisoners and the insane, official salaries, the care of public buildings, etc., have usually been considered county purposes within the purview of the revenue laws and the administrative details of county business.
    9. CONSTITUTIONAL STATUTE: County Tuberculosis Hospital Act: Requisition of Tax to Be Vised by Prosecuting Attorney and Circuit Court. The provision of the Act of 1913 relating to the establishing and maintenance of a county tuberculosis hospital requiring the amount of tax designated by the board' as necessary to be levied, to be first approved by the prosecuting attorney and circuit court, is not such a limitation upon the taxing power as renders it invalid, or such a legislative anomaly as stamps upon it a doubt in the lawmaker’s mind as to its validity, for a similar restriction has been carried forward as live law in some of the sections of the chapter on “Taxation and' Revenue” in the Revised Statutes since 1879.
    10. --: -: Not Violative of Section 1 of Article 10. The County Tuberculosis Hospital Act of 1913 is not violative of section 1 of article 10 of the Constitution standing alone — which declares that “the taxing power may be exercised . . . by counties and other municipal corporations, under authority granted them by the General Assembly, for county and other corporate purposes.”
    11. -:--: -: Cannot Stand Alone. But section 1 of article 10 must be read in connection with section 11 of article 10, declaring that the rate of taxes for county purposes cannot exceed thirty-five cents on the hundred dollars valuation in counties having thirty million dollars or more of assessed valuation of property, for both sections pertain to the same subject-matter and are strictly in pari materia.

    12. -: -: Tax in Excess of Thirty-five Cents for County Purposes: Invalid. The purpose and intent of the County Tuberculosis Hospital Act of 1913 was to authorize a tax of twenty-five cents on the hundred dollars valuation in excess of the constitutional maximum limit of thirty-five cents in counties having property of an assessed valuation of thirty millions or more for roads, bridges, the care of the insane, paupers and criminals, care of public buildings, jury service, official salaries and other current county expenses, for if the constitutional levy of thirty-five cents is to be depleted by a deduction of twenty-five cents for a tuberculosis hospital district all the usual and needful activities of the county would be fatally crippled; and the act in that particular is violative of the Constitution and void.
    13.--: -: -: Constitutional.Barriers. The provision of the Constitution fixing a maximum limit for county purposes of thirty-five cents on the hundred dollars of assessed valuation in counties having thirty million dollars or more of assessed property, cannot be struck down by the General Assembly, nor ignored, nor evaded by indirection. It is an insurmountable barrier to an increase of taxes for county purposes beyond that rate; and unless the tax on all the property in the county to maintain a county tuberculosis hospital can be construed to be for “corporate purposes,” which are construed to be equivalent to county purposes, it has no constitutional warrant whatever.
    14. -: -: Not to be Upheld as Benefit Assessment. A tax of twenty-five cents on the hundred dollars of assessed value on all property in the county to maintain a tuberculosis hospital cannot be upheld on the principle by which benefit assessments for parks, streets, levee and drainage purposes are justified as legal. Those assessments, while referable to the taxing power, are not taxes in a constitutional sense.
    Appeal from Buchanan Circuit Conrt. — Eon. William D. Rusk, Judge.
    Affirmed.

      Gorry G. Ferrell, G. F. Strop and Culver & Phillip for appellant.
    (1) The artificial being created by this act is not, strictly speaking, a public or municipal corporation, but is a quasi-public corporation. 20' Am. & Eng. Ency. Law, 1130; 28 Cyc. 128; 1 Dillon, Mun. Corp. (4 Ed.), secs. 22-25. In a number of cases in this State a county has been termed a quasi-public corporation. Pundman v. St. Charles Co., 110 Mo. 596; Jefferson County v. St. Louis County, 113 Mo. 630 ; Redd v. Howell Co., 125 Mo. 60; State ex rel. v. County Court, 142 Mo. 583. In other cases the distinction referred to has-been fairly presented and clearly defined by this court. Heller y. Stremmel, 52 Mo. 309; State ex rel. v. Leffingwell, 54 Mo. 471; St. Louis y. Shields, 62 Mo. 247. The character of the corporation created is of consequence in considering the powers of the Legislature, the manner and means by which it can act or has acted:, and the relation such, a corporation bears to our Constitution and laws. (2) The power resides in the Legislature to create public or quasi-public corporations, and is unrestricted unless limited-by a constitutional provision. 1 Dillon, Muu. Corp. (4 Ed.), sec. 37; 28 Cyc. 135; 20 Am. .& Eng. Ency. Law, p. 1132; Taylor v. Carondelet, 22 Mo. 105. Our Constitution in no way abridges the right of the Legislature to create corporations of this character. The provisions of article 12 relate to private corporations only, or joint stock companies or .associations having “powers or privileges not possessed by individuals or partnerships.” í$ec. 11, art. 12. The Legislature is required to “provide by general laws for the organization and classification of cities and towns.” Sec. 7, art. 9, .and Sec. 53, art. 4. •The terms “municipality,” “political corporation,” “subdivision of the State,” “municipal subdivision of this State, ’ ’ and ‘ ‘ municipal corporations ’ ’ are used interchangeably in the various provisions, of our Constitution. Art. 4, sec. 47; Art. 9, secs. 6- and 19; Art. 10, secs. 6, 9, 10, 11, 12, 13 and 20. The above provisions, however, all consist of limitations on the powers of the municipalities or that may be conferred on them by the Legislature, and nowhere is the power of the Legislature to create such corporations, except as to cities and towns, in any way abridged o.r restricted. The only regulation of this power found is the inhibition against any local or special law “creating corpora> tions” (Art. 4, sec. 53), and there is and can be no claim that the act in question is local or special. (3) This act does not violate the- provisions of section 11, article 10, of the Constitution, limiting the annual levy for “county purposes” in counties containing an assessed valuation in excess of thirty millions of dollars, as does Buchanan, to not exceeding thirty-five cents on the hundred dollars. The tax levied by the hospital district for the first year is twenty-five cents on the hundred dollars valuation. If this levy is for “county purposes,” ■within the purview of the above section of the Constitution, then as this levy, added to that made by the county for “county purposes,” would total sixty cents on, the hundred dollars valuation, it is beyond the power of the district to make, or the Legislature to authorize. Clark v. Adair County, 79 Mo. 536; 11 Cyc. 342. There is no general welfare clause in any statute applicable to counties. The county court is one of limited jurisdiction, possessing no powers except such as are expressly conferred on it by statute or such as are necessarily incident to those actually conferred. Sec. 6, art. 6, of the Constitution, confers no power or jurisdiction on county courts except “to transact all county and such other business as may be prescribed by law.” No officer or agent of the county can bind the county in anything except in the manner and to the extent expressly authorized by statute. It would seem, therefore, that the reason of the matter is that counties do not possess the powers conferred on hospital districts by this act. If they do not, then, of course, it must follow that the limitation of the levy that may be made for “county purposes” cannot apply. (4) The act in question is not in violation of either section 1, section. 3, or section 10 of article 10 of the Constitution.

      Spencer & Landis for respondent.
    (1) Even though the taxes provided for in this act are to protect and preserve the public health they are within the meaning of the words “county purposes,” as used in section 11 of article 10 of the Constitution of the State. Brooks v. Schultz, 178 Mo. 222. (2) As these current expenses must first be paid, when they consume the entire taxable limit, no further indebtedness can be created by act of the county or by legislative enactment. Anderson v. Ripley County, 181 Mo. 46. "Where the county court has made a full levy under the Constitution for county purposes, an additional levy cannot be made for any other purposes. State ex rel. v. Railroad, 145 Mo. 596; State ex rel. v. Piper, 214 Mo. 439. (3) It lias frequently been held that taxes may only be levied for public purposes, and that they cannot be levied under the Constitution to aid a private person or an individual, and unless the purposes for which the enactment of the statute in question is intended, come within the meaning of that rule, then these taxes provided for in this law are contrary to law and the Constitution. State ex rel. v. Switzler, 143 Mo. 287; State ex rel. v. St. Louis, 216 Mo. 47.
   LAMM, C. J.

Plaintiff appeals from the judgment of the Buchanan Circuit Court in a proceeding to obtain an order from that court directed to the county court of Buchanan county requiring the latter to levy certain taxes theretofore “levied” by the Board of Commissioners of the Tuberculosis Hospital District of Buchanan County, the order being denied.

In 1911 the General Assembly enacted a statute prescribing a method for the creation of public tuberculosis hospital districts, the appointment of boards of commissioners for such districts when organized, and prescribing the duties and powers of such boards— among them the power to levy taxes, to establish and maintain public tuberculosis hospitals and dispensaries. [Laws 1911, p. 130, sec. 8.]

In conformity with that act an election was held in Buchanan county in November, 1912, resulting in a favorable vote, the organization- of a district, and the appointment by the Governor of a board of commissioners (hereinafter called the board). Such board organized in conformity with the act and the district became “a body corporate and politic” by the name and style of the Tuberculosis Hospital District of Buchanan County. [Section 2.]

In 1913 (Laws of 1913, p. 143 et seq.) the General' Assembly repealed section eight of the Act of 1911 and in lieu thereof enacted four new ones, viz., 8, 8a., 8b, and 8c. There was also an emergency danse putting (he amendatory act into immediate effect on its approval, which happened March 20, 1913.

A summary of sections 8, 8a, and 8b may not be amiss. (Section 8c pertains, to bond issues to acquire lands and erect hospitals and improvements thereon etc., but, as that power is not in question in this cause, we shall say nothing about it.)

Section 8 gives the board power by resolution to levy annually a tax of not exceeding one-fourth of one per cent on each dollar of the aggregate of the assessed valuation of all property of every kind within said district, subject to taxation for State and county purposes, and shown by the last preceding assessment, to be used by the board for the support, maintenance and operation, additions and improvements, or all other necessary and proper expenses of carrying out the purposes for which the district was created. Such resolution is to- be certified to the proper prosecuting attorney or city counsellor, as the case may be.

Section 8a provides that the prosecuting attorney or city counsellor, as the case may be, on receipt of such resolution certifying that a levy had been, directed, shall immediately present .a petition to the circuit court of his county setting forth the facts and specifying the reasons why such tax should be assessed, levied and collected; whereupon such court, on being satisfied that such levy is .authorized by law and that the ¡assessment, levy and collection thereof will not be in conflict with the Constitution and laws of this State, shall make an order directed to the county court commanding it to have assessed, levied and collected said tax, and shall enforce such order by mandamus or otherwise. This circuit court order is to be certified to the county court and thereat it becomes the duty of such county court ‘ ‘ to include the tax levy so ordered in the annual levy to be made for the current year for State and county . . . purposes.” Thereat such levy shall be carried out on all the assessment books of property within the district and such taxes shall be collected by the collector at the same time and* in the same manner that State and county taxes are collected. When collected, such tax is to be turned over to the treasurer of the board, and provision is made for suits to enforce payment or to collect the same without suit, precisely as is provided by the laws relating to collection of taxes, and such taxes .are made a lien upon the property situate in the district the same as other taxes.

Section 8b prescribes that the board shall have power to. make one tax levy of one-fourth of one per cent of each dollar of the assessed- value of taxable property in- the district (to be ascertained as in Sec. 8a) for the purpose of paying for lands condemned or purchased for tuberculosis hospitals and for erecting improvements, .reconstructing hospital buildings, etc., such levy to be subject to the same provisions enumerated in section 8ia and to be collected in the same way.

Following the passage of that amendatory act, to-wit, on the 31st day of March, 1913, the board passed a resolution levying a tax of one-fourth of one per cent of the assessed value, on all taxable property situate in said district, having regard to the assessment for State and. county purposes for the preceding year, and such steps were taken thereafter that the prosecuting attorney of Buchanan county became charged with the duty of presenting a petition to and obtaining an order from the circuit court directing the county court to levy such tax. Such petition in the name of the board he presently presented, showing, inter alia, that the district had no land’s, buildings or other equipment to carry out the purposes for which it was created, and that the levy was necessary for the acquisition of lands, the erection of buildings and the maintenance of hospitals for the treatment of persons suffering from tuberculosis, no levy having been theretofore made for such purpose. He further informed the court that the levy and collection of the tax were not in conflict with the Constitution or laws of this State.

Presently a hearing was had on Issues made hy the pleading of one Peter, who intervened as a householder and resident taxpayer of the county, on leave granted. Intervener alleged that the valuation of the property situate in Buchanan county is in excess of $30,000,000 for taxation purposes; that under the Constitution (Sec. 11, art. 10) there could not be levied for county purposes in said county a tax in excess of thirty-five cents on the hundred dollar valuation, that a levy at that rate was the usual one in that county and was necessary for county purposes, and that the levy of the proposed tax of one-fourth of one per cent of each dollar (i. e., twenty-five cents on each $100 valuation) would be in contravention of that constitutional provision, and further that not only is the Amendatory Act of 1913 unconstitutional in' the particular mentioned, but that it was violative of sections 1 and 3 of article 10 of the Constitution, for that the purpose for which the levy is made is prohibited thereby.

The court found the averments of the petition true except that one averring the constitutionality of the amended act. It held contra on that point and refused to make the order on the ground that the act of the Legislature purporting to authorize such order violates the Constitution, and hence confers no jurisdiction to make such order. Accordingly it dismissed the petition and adjudged costs against plaintiff.

As said, an appeal was prosecuted from the judgment of the court denying the order and dismissing the petition..

The cause, advanced on motion, was submitted on briefs on both sides and oral arguments by appellant.

There are propositions, some of law, others of fact, which it cannot be amiss to lay down as a foreword, to-wit:

(a) Courts, out of solemn respect to the lawmaker, never impute to him an intention to circumvent, abrogate, or impair a constitutional provision; hence they approach the question of the con-s'titutionality of a law with great caution, view it from all angles and in all its aspects, giving free play to a strong (even violent) presumption in favor of its. validity; hence, too-, they never declare, a law void unless its nullity and invalidity are placed, in their judgment, beyond a reasonable doubt; hence (and most of all) every allowable art, part and act of judicial power, every wise and benign rule of construction and interpretation, should be astutely levied upon and exercised in so interpreting the law, if possible in reason, that none, of its parts perish. [Ex parte Loving, 178 Mo. l. c. 203 et seq.; State ex rel. v. Warner, 197 Mo. l. c. 656 ; In re Wellington et al., Petitioners, 16 Pick. l. c. 95; State ex rel. v. McIntosh, 205 Mo. l. c. 602; State ex rel. v. St. Louis, 241 Mo. l. c. 247.]

But if, when all is done for it" that can be done in reason, it appears that there can be no two ways about it but that the law violates the Constitution, then the paramount authority of that instrument breaks the law. It becomes a mere empty noise and is as if it never had been at all.

To declare a statute unconstitutional is the exercise of a high and delicate, but necessary, judicial power to be fearlessly used' if need calls and there is no way out of it. In no other way known to intelligent men can a government by written constitution exist except there be power somewhere to' make statutes square with that instrument, and to say whether or not they do.. That high power is now lodged with the courts; there it has been for generations and there it must remain until the people by the exercise of their sovereign will, expressed in a constitutional way, take it away and lodge it elsewhere.

(b) So vast and imminent is the peril struck at by the statute, so surely has science shown us in these latter times that mankind is not (as once was thought) helplessly bound, as by a decree of fate (to-wit, by some dreadful and immutable law of heredity) to be the pathetic victim of an incurable and inherited disease, tuberculosis, so surely is the benign object of the law directed to the welfare of the people in protecting them from a scourge bred by infection, a scourge that is “communicable, preventable and curable,” that kills one-tenth to one-seventh of all our people and one-third of all who die between the ages of eighteen and forty-five — I say, in view of such premises, my personal feelings in deciding this cause are expressed in the first part of the judgment of Crewe, C. J., in the matter of the petitions of Lord Willoughby and the Earls of Oxford and Derby anent the noble house of De Yere and the earldom of Oxford, pending and adjudged in the High Court of Parliament, in the first year of Charles I (Sir William Jones’s Rep., 1 vol., p. 96) viz.: “I have labored to make a covenant with myself that affection may not press upon judgment; for I suppose there is no man that hath any apprehension of gentry or nobleness, but his affection stands to the continuance of so noble a name and house, and would take hold of a twig or twine-thread to uphold it. ’ ’

For “gentry and nobleness,” read public, weal, and for “name and house,” read statute, and the excerpt justifies itself to me as apposite.

(It may not be getting too far afield for correct judicial discourse to observe that the discriminating scholar who has not access to the old report may thank me for citing bim to 252 Mo. x, where the remainder of Chief Justice Crewe’s observations, one of the most notable and rugged examples of unalloyed eloquence that ever fell from judicial lips, may be found quoted in the funeral oration of Judge Philips in the memorial services of our bar for our late brother, Gantt.)

Despite our respect for the motive of the statute and our labor to sustain it, we are constrained to follow the cold reason of the thing in the beaten path of interpretation and sustain the judgment instead, as will now appear.

(e) It is argued for respondent that the statute is void because violative of section 1, article 10, of the Constitution, reading: “The taxing power may be exercised by the General Assembly for State purposes, and by counties and other municipal corporations, under authority granted to them by the General Assembly, for county and other corporate purposes.”

It is further argued that it violates section 3 of article 10, reading: “Taxes may be levied and collected for public purposes only. They shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and all taxes shall be levied and collected by general laws. ’ ’

(1) It is not apparent why the purpose to be sub-served by the tax in question is not a public purpose within the intendment of section 3, supra. The evil in the mind of the Constitution maker and blazoned forth in his instrument was the danger of a misuse of the taxing power for private purposes, and we are mot willing to hold that the statute comes within the mischief interdicted thereby. The argument of respondent in that behalf is faintly developed and if there were no other constitutional obstacles in the way of the statute, we would be inclined, at firs.t blush and without at this time pursuing the matter in all its ramifications and bebarings, to hold that statute well enough from that angle.

(2) Coming to section 1 of article 10, supra, it is an unquestionable limitation on the sources of the taxing power. It is a plain provision made by plain men for plain men locating that power in only two places, namely, in the General Assembly for State purposes, and in counties and “other municipal corporations” for “corporate purposes.” It can be looked for at no other places- than those two. If, now, the Act of 1911 had not been amended by the act of 1913-, it would have stood as a palpable violation of the Constitution in that regard; for the Act of 1911 granted the taxing power to the board of commissioners of the tuberculosis hospital district — a source of taxing power strange to the Constitution, and a statutory invention so clearly outside of the provisions of that instrument as to be a daring and dangerous innovation. It cannot be held that the hospital district is a municipal corporation within the purview of section 1, supra [Black’s L. Dict. (2 Ed.), tit. “Municipal Corporation.”] Where would the end be on that road? What other new source of taxing power would come in if the constitutional .barrier is to be thus overleaped or broken down? The maxim, withstand beginnings, could nowhere be better applied than by stamping out such heresy when it first rears its head.

The Act of 1913 obviously was intended to bring the law within constitutional sanctions in that particular. True, it directs that the board by resolution may levy a tax rate in a given amount. The use of the word “levy” was unfortunate; for by common usage that word expresses a concept inseparably and intrinsically connected with the taxing power. But the Act of 1913 requires the avouchment of the county court and a levy by that body as a condition precedent to the consummation of legal tax levy, so that the Act of 1913 may be interpreted to mean that the county court must make the levy, but may not do so unless the board has theretofore by resolution required it to be done. The word “levy” in the grant of power to the board, might be construed, in a pinch, to be a mere preliminary order o.r requisition evidencing the official action of the board upon the amount necessary for the purposes in hand.

Section 1 of article 10, under review, uses the phrase “corporate purposes.” That is a broad term, intentionally left broad and general and to ^® broadly construed or interpreted. We are not prepared to say it does not mean county purposes or city purposes, as the case may be; and what, in turn, is a city or county purpose must be determined by a reference to the whole body of the learning on that score. We will not go into that field, because roads, bridges, the care of paupers, of the insane, of prisoners, official salaries, the care of public buildings, etc., have usually been considered county purposes within the purview of revenue laws and the administrative details of county business, and, having in mind the settled breadth and scope of county purposes as evidenced by a group of statutes, we are not prepared to say that a statutory scheme involving the prevention and cure of infectious diseases imperiously menacing the public health, and the care of those who are afflicted therewith, who are indigent, at public expense, in the same public hospital with those who can pay and are required to pay, as here, would not be such essential part of the public welfare as would become a corporate purpose, i. a., a county purpose,'within the fair intendment of the broad! constitutional term.

The provision of the Act of 1913 requiring the resolution of the board to be lodged with the prosecuting attorney and requiring that officer to present a petition to the circuit court in order that the legality of the tax levy be predetermined by that tribunal, and that the county court should only move under the direction and order of the circuit court, has two aspects, viz.: In one it would appear at first blush that the lawmaker entertained such serious doubts of the validity of his enactment that he interdicted its enforcement except on the vise and avouchment of the circuit court. But looked into, that is not so; for the other is that the lawmaker, out of abundant caution, was but squaring his enactment with those provisions of the general statutes, commonly known as the “Cottey Act” (Laws of 1879, p. 185) carried forward as live law in some of the sections of article 5, chapter 117, Revised Statutes 1909, entitled “Taxation and Revenue.” The Cottey Act provides for the same kind of an application to the circuit court and puts the same limitation on the exercise of the taxing power in some of its features; hence all sinister significance, in the way of a supposed doubt in the lawmaker’s mind, must be put to one side,. As at present advised, we see no insuperable obstacles to the law in section 1, article 10, of the Constitution, standing alone; but that section, as well as section 3, supra, must be read in connection with section 11 of article 10 of the Constitution, for they pertain to the same subject-matter and are strictly in pari materia. [Brooks v. Schultz, 178 Mo. l. c. 228.]

(d) It is argued for respondent that section 11, article 10, of the Constitution is violated by the Amendatory Act of 1913, and this contention presents the decisive question and discloses the fatal blemish in the act.

That section is long and we reproduce only those parts material here, viz.: “Taxes for county . . . purposes may be levied on all subjects and objects of taxation; . . . For county purposes the annual rate on property ... in counties having thirty million dollars or more, . . . shall not exceed thirty-five cents on the hundred dollars valuation. . . . For the purpose of erecting public buildings in counties, cities or school districts, the rate of taxation herein limited may be increased when tbe rate of sncb increase and the purpose for which it is intended shall have been submitted to a vote of the people, and two-thinds of the qualified voters of such county . . voting at such election, shall vote therefor. The rate herein allowed to each county shall be ascertained by the amount of taxable property therein, according to the last assessment for State and county purposes . . . said restrictions as to rates shall apply to taxes of every kind and description, whether general o.r special, except taxes to pay valid indebtedness now existing, or bonds which may be issued in renewal .of such indebtedness.”

That part of section 11,. above, referring to the erection of public buildings and the increase of taxation therefor upon the vote of two-thirds of the qualified voters of the county may be laid out of view for the purposes of the instant case, because the facts do not bring the case within that provision, and no contention is made by appellant that the tax levy in judgment stands on that foot or is validated thereby.

Neither is it contended by appellant that the proposed tax enters into and becomes .an integral part of the thirty-five cents on the hundred dollars authorized to be levied for county purposes.

The case, then, must stand or fall on the proposition that the proposed levy is in addition to the thirty-five cents allowed by the Constitution for “county purposes.” Evidently that was the theory of the lawmaker. Otherwise, if the constitutional levy of thirty-five cents for roads, bridges, the care of the insane, paupers, criminals, and the current expenses of the county for salaries, jury service, care of public buildings and what not, is to be depleted by a deduction of a twenty-five cent levy on the hundred dollars for the tuberculosis hospital district, then, all 'the usual and needful activities of the county would be crippled by starvation into a state of suspended animation akin to death. Self-evidently so benevolent an act as tbe one undex review eould not have contemplated so unbenevolent and injurious a result. The itching idea in the lawmaker’s mind was to progress, i. e., to keep what we have and get more, not to go backward in governmental purpose "and action. The lawmaker, then, must be held to have intended his act to permit a levy in addition to the thirty-five cents permitted by the Constitution, anid appellant so argues in a brief most commendable in tone and uncommonly ingenious in reasoning. But we shall not follow the lead of learned counsel. That provision of the Constitution may neither be struck down by the General Assembly nor ignored, nor evaded by deft indirection. It stands there as an. insurmountable barrier to an increase in taxation for county purposes beyond the maximum rate of thirty-five cents on the hundred dollars.” It goes further. It interprets itself. It declares that the restriction shall apply to taxes of every kind and description whether general or special, except taxes to pay valid' indebtedness now existing, or bonds which may be issued in renewal of such indebtedness. Looked at from every standpoint, we have come to rate it as our bounden duty to so write the law. The student in Missouri history need not be told that the Constitutional Convention of 1875 met at a time when there was a deep-going and wide-spread popular revulsion from high taxes incident to a prior expansion of county and city expenditures and indebtedness and a present contraction of debt-paying ability. That convention provided remedies therefor with unsparing and unmistakable words. It left no loopholes for evasion or bars down in that behalf. It encompassed public frugality by setting impassable metes and bounds to taxation, public expenditure and the creation of public indebtedness. Its instrument must be construed by courts so as to preserve its spirit and further its purpose. Ita lex scripta est.

If, peradve-nture, the State has outgrown prescribed taxation limits, or new discoveries have been made or a new public sentiment has sprung demanding as a matter -of social justice and- public welfare that the hard-and-fast limits of the- present Constitution no longer are adequately responsive to the people’s needs, then, the remedy is not for this court to emasculate- or whittle away the paramount law by refinements, but it is for the people to at all times cry aloud (vide, Cato’s iteration and reiteration anent the destruction of Carthage) for an amendment to the Constitution in a straightforward constitutional way, or to frame and adopt a new one-.

Unless the proposed tax be construed to be for corporate purposes, which we think (¡and have ruled) are equivalent to county purposes, it has no constitutional warrant at all.

We are referred to principles of law permitting the levy of special assessments for local improvements, as for example, for park, street, levee and drainage purposes. But those benefit assessments have been validated because, in their essence, while referable to the taxing power in a sense, they are not taxes in a constitutional sense, but stand on a distinct, principle not at all applicable here. They are taxes only in a loose and colloquial sense and not in a constitutional or legal sense. .We cite a case or so to the point (from one discern all). [Farrar v. St. Louis, 80 Mo. l. c. 387 et seq., and cases cited and reviewed; Kansas City v. Bacon, 147 Mo. l. c. 282.] Appellant’s case cannot prosper on the theory validating special assessments for local improvements. The- tax levy here sought is of a tax strictly so by name and: by inherent quality. We have no doubt the act, in the particulars in judgment, is unconstitutional. It follows that the circuit court did right in refusing to order a tax levy.

Let the judgment be affirmed.

Woodson, Graves, Walker and Faris, JJ., concur; Broivn, J., dubitante; Bond, J., concurs in result.