author: WOODSON, P. J.

text:
    NATIONAL REFRIGERATOR COMPANY, Appellant, v. SOUTHWEST MISSOURI LIGHT COMPANY.
    Division One,
    June 6, 1921.
    1. ABSTRACT: Commingling Matters of Record and Exception: Waiver. An objection that the record proper fails to show that the motion for a new trial or the bill of exceptions was ever filed, and that such showing is made to appear only, from the bill of exceptions itself, is, in view of the amendment to Rule 13, waived, unless the respondent serves his motion raising such objection within fifteen days after the service of the abstract.
    2. —-: --: Meaning of Rule 13. The amendment to Rule 13 adopted December 31, 1920, means (1) that the objection that record matter is by the abstract made to appear only as exceptions, or exceptions only as record matter, must be made in writing or print; and (2) the objections may be set forth in the printed brief or in a separate motion.

      3. INTERSTATE COMMERCE QUESTION: Determined hy Federal Courts. The ultimate and final determination of all questions re- . garding interstate commerce, including the question whether the transaction carried on in this State by a foreign corporation was interstate commerce, rests upon the Federal courts.
    4. INTERSTATE COMMERCE: Foreign Corporation: Doing Business in This State: No License. A foreign corporation, for a stated sum, made and performed a contract to furnish and erect, in complete running order, an ice-making plant of twenty-five tons daily capacity, in this State. The refrigerating machinery and all its parts were shipped to its order in this State and installed under its supervision; but for the purposes of installation, the company put in a cement foundation for the machines, which necessitated the hiring of carpenters, mixers, and masons, from four to fifteen men per day for several months, and the purchase of local material, consisting of lumber, hardware, pipe fittings, and a considerable amount of cement, such local “erection expenses” being contemplated by the contract. Held, that the entire transaction was not interstate commerce, but “doing business” locally was involved, separate and distinct from interstate commerce: and said foreign corporation having neither received nor applied for-a license to do business within this State, cannot, in view of the statutes (Secs. 3027 to 3040, R. S. 1909), maintain a suit in the courts of this State for the balance due under the contract.
    Appeal from Jasper Circuit Court. — Hon. Grant Emerson, Judge.
    Affirmed.

      E. K. Robinett and Dewey & Foullce for appellant.
    (1) The court erred in finding the issues for the defendant, and that the contract sued upon, together with the performance .of same, was within the purview of Secs. 3027-3040, R. S. 1909, relating to the licensing of foreign corporations in this State, because the contract and the evidence adduced regarding the performance of same shows that the whole transaction was interstate- commerce and comprised within the meaning of the words “commerce among the several states” as used in the Federal Constitution, Article 1, Section 8, and that the said transaction was not subject to state regulation and was not within the purview of the statutes of Missouri pertaining to foreign corporations. International Text Book Co. v. Gillispie, 229 Mo. 397; Jewel Tea Co. v. Carthage, 257 Mo. 383; Hess Warming Co. v. Grain Elevator Co., 217 'S. W. 493; York Mfg. Co. v. Colley, 247 U. S. 21; Cooper Mfg. Co. v. Ferguson, 113 U. S. 736; Rearick v. Penna, 203 U. S. 512; Dozier v. Alabama, 218 U. S. 127. (2) A contract or negotiation which contemplates and results in the importation or introduction of merchandise into one state from another is interstate commerce,' the test being the importation. Robins v. Taxing District, 120 U. S. 489; Crutcher v. Kentucky, 141 U. S. 47; Crenshaw v. Arkansas, 227 U. S. 389; Caldwell v. North Carolina, 187 U. S. 622; Kansas City v. McDonald, 175 S. W. 919; Dozier v. Alabama, 218 U. S. 124. (3) It is immaterial whether the contract is made'in the state of the purchaser or of the buyer as affecting its interstate character. And it is also immaterial in whose name the goods are shipped. (4) Caldwell v. Carolina, 187 U. S. 622; Jewel Tea Co. v. Carthage, 257 Mo. 383; Cooper v. Mfg. Co., 113 U. S. 727; Dozier v. Alabama, 218 U. S. 124. (5) The character of the transaction in its interstate aspect is not affected even though the consummation of the contract may necessitate the performance of certain services inherently relating to and connected with the subject matter of the sale, that is services relevant and appropriate to the agreement made and inseparable therefrom. York Mfg. Co. v. Colley, 247 U. S. 21; Hess Warming & Ventilating Co. v. Grain Elevator Co., 217 S. W. 493; Jewel Tea Co. ' v. Carthage, 257 Mo. 383; Dozier v. Alabama, 218 U. S. 127; Engine & 'Mfg. Co. v. Vrooman Apartments Co., 154 Mo. App. 139. (6) ■ The performance of individual contracts by a corporation in another state is not “a doing of business in the State” in the purview of the statute. Paint Co. v. Br.edel Co., 193 Fed. 897; Cooper Mfg. Co. v. Ferguson, 113 U. S. 727; Caesar v. Cap ell, 83 Fed. 403. (7) Under comity of the States a foreign corporation has a right to use onr courts, either as plaintiff: or defendant. Reeder v. Robertson, 202 Mo. 522; Text Book Co. v. Gillispie, 229 Mo. 397.

      G. G. Spencer and A. E. Spencer for respondent.
    (1) Appellant’s brief fails to comply with Rule 15 of this court, in that it does not allege, distinctly or otherwise, the errors committed by the trial court. Rule 15 provides that “the brief for appellant shall distinctly allege the errors committed by the trial court.” Yahldick v. Yahldick, 264 Mo. 529; Squaw Creek Drain. Dist. v. Hayes, 217 S. W. 20; Ross v. Bewley, 178 S. W. 495. (2) The record filed by appellant does not show (1) that appellant filed any motion for a new trial, or (2) that any bill of exceptions was ever filed in the cause. Hence there is nothing before the court but the pleadings, stipulations of parties, and the judgment. Cunningham v. Consolidated School Dist., 215 S. W. 249; Wallace v. Libby, 231 Mo. 341; Langstaff v. Webster Groves, 246 Mo. 223. (3) The evidence fully sustains the finding, on the theory that appellant, in attempting to perform the contract, was doing business in Missouri, within the meaning of the statutes relating to foreign corporations. It was admitted that it was a foreign corporation and had not complied with such statutes. Therefore the contract was void, and appellant would not maintain any suit in action, either legal or equitable, in the courts of this state, upon its demand. R. S. 1909, secs. 3037, 3039 and 3040. (a) The plaintiff in carrying out the contract sued on was transacting business in the State of Missouri. Ntl. B. & L. Assn. v. Denson, 189 U. S. 408, 47 L. Ed. 870; United Lead Co. v. Elevator & Mfg. Co., 222 111. 199; John Deere Plow Co. v. Wyland, 69 Kan. 255, 76 Pac. 863; Tomson v. Iowa State Assn., 88 Neb. 399,129 N. W. 529; Pennsylvania Co. v. Meyer, 197 U. S. 407, 49 L. Ed. 810; Williams v. Scullin, 59 Mo. App. 30; Chicago Mill

      & Lumber Co. v. Sims, 197 Mo. 507; .Hogan v. City of St. Louis, 176 Mo. 157. (b) And it is equally certain that the transaction of business in this State by a non-complying foreign corporation makes all its contracts void, except in the case of transactions entirely within interstate commerce. Parke, Davis & Co. v. Mullett, 245 Mo. 168; Broom Co. v. Mo. F. & C. Co., 195 Mo. App. 305; TriState Amusement Co. v. Forest Park Co., 192 Mo. 404; Mill & Lumber Co. v. Sims, 197 Mo. 507; United Shoe Mfg. Co. v. Ramlose, 210 Mo. 631; Amalgamated Z. & L. Co. v. Mining Co., 221 Mo. 7; State ex rel. v. Robertson, 271 Mo. 475; Osborne & Co. v. Shilling, 74 Kan. 675. (c) The transaction here was not one of interstate commerce, but the things done by plaintiff amounted to doing business in Missouri within the meaning of the statutes relating to foreign.corporations. General Ry. Signal Co. v. Virginia, 246 U. S. 500; Browning v. Waycross, 233 U. S. 16; State ex rel. v. Arthur Greenfield Co., 205 S. W. 619; City of St. Louis v. Parker-Washington Co., 271 Mo. 242; Wichita F. & S. Co. v. Yale, 194 Mo. App. 60; Refrigerating Machine Co. v. Penn. H. & P. Co., 178 Fed. 696; St. Louis Fireproofing Co. v. Beilharz, 88 S. W. 512; Smythe Co. v. Ft. Worth G. & S. Co., 105 Texas, 8, 142 S. W. 1157, 128 S. W. 1136; Buhler v. Burrowes Co., 171 S. W. 791; General Ry. Signal Co. v. Commonwealth, 118 Va. 301; Hastings Indus. Co. v. Moran, 143 Mich. 679; Curtain Co. v. Jacobs, 163 Mich. 72; Amusement Co. v. E. Lake Chutes Co., 174 Ala. 526; Mfg. Co. v. Dothan Bank, 176 Ala. 229; Nickerson v. Tank Co., 223 Fed. 843.
   WOODSON, P. J.

This case was brought by the plaintiff, in the Circuit Court of Jasper County, against the defendant, to recover the sum of $12,890.41, balance alleged to be due it under a written contract to furnish the material and install at Joplin, Missouri, a certain ice plant described in the petition. Judgment was for the defendant and plaintiff appealed the cause to this court.

The contract (omitting formal parts) is as follows:

“We propose to furnish and erect at Joplin, Missouri, in complete running order and condition, and of the best material and workmanship, one ice-making plant of 25 tons capacity daily, as per specifications to be submitted, for the sum of twenty-two thousand, four hundred and thirty-six dollars, payments to be made, as follows :

“Six thousand dollars on arrival of machines in Joplin, Missouri.

“Six thousand, four hundred and thirty-six dollars when machines are installed and ready to start, less freight charges and erecting expenses advanced by you.

“Ten thousand dollars or balance in two notes of $5,000 each payable in one and two years with interest at the rate of six per cent per annum. These notes to be executed by the purchasers or their succesors, or both, and in the event of the organization of a stock or incorporated company for the purpose of acquiring ownership in the said machines and apparatus, then the notes to be executed by the company, and secured by the entire issue of its capital stock.”

The notes mentioned in the contract were never executed, hence the suit was for the balance due under the contract.

The suffeiency of the pleadings are not questioned, so we will put them aside, except to say that the answer, among- other things, charges that the plaintiff was a foreign corporation organized and doing business under the laws of Colorado and had never taken out a license to do business in this State as required by the statutes hereof. The reply among other things stated that the contract matter involved interstate commerce, and was therefore not governed by the laws of this State.

When the can.se was called for trial the following stipulation was entered in by and between counsel for the respective parties (formal parts omitted):

“Whereas, there are several issues involved in the trial of this cause, some of which will require the examination and determination of long and complicated accounts and transactions; and,

“Whereas, one of the issues is presented by the second count of the last amended answer of the defendant and the denial thereof contained in the plaintiff’s reply thereto, said issue being in ¡Substance the right of the plaintiff to have and maintain the suit and recover because of the alleged, fact that it was and is a corporation under the laws óf Colorado and had failed to comply with the laws of Missouri; said second count of the last amended answer and that portion of the reply referring thereto are hereby referred to and- made a part hereof for a more definite statement of such issue; and,

“Whereas, the determination of such issue may or may not make unnecessary the trial of the further issues in the case, it is, therefore, agreed and stipulated that there shall first be tried to the court (a jury being waived thereon) the issue aforesaid, presented by the second count of defendant’s last amended answer and that portion of reply relating thereto, that the parties shall from time to time during the present term of court submit their evidence on such issue unto the. end that all the evidence.must be submitted during said term of court and the matter finally submitted to the court for determination. That upon hearing and considering the matter aforesaid, the court shall determine and announce his finding on such issue. If-such finding be for the defendánt, thereupon final judgment shall be rendered in this cause in favor of the defendant and against the plaintiff, from which plaintiff may appeal. If such finding be for the plaintiff, the defendant shall thereupon file its counterclaim in the cause and the remaining issues, other than that above stipulated, 'shall remain for trial and be heard and determined by the court, no judgment to be rendered until determination of all the issues by the court, whereupon the defendant may appeal.”

The following admission was also made at the trial in open court:

“Mr. Spencer: It is admitted that on the date of the making of the contract sued on, to-wit, January 7, 1902, the plaintiff was and has ever since been a corporation organized for business purposes under the laws of the State of Colorado, and that said plaintiff has never complied with the laws of this State, Missouri, and obtained a license authorizing it to transact business within this State, and that it never had or maintained a public office or place in this State for the transaction of business where legal service might be obtained upon it and where the books were kept required by the Missouri statute, and that the plaintiff never took any steps to procure a license or authority to transact business in this State.

“Mr. Dewey: This further thought: Whether this business as a whole is a transaction which would be made void by the statutes of Missouri or whether it would come under the exceptions which are allowed by Interstate Commerce. In other words the point we are working on today is whether this was' a transaction or contract of interstate commerce.”

In order i¡o maintain the issues on its part plaintiff introduced the following evidence:

E. J. Ulrich, sworn as a witness on behalf of plaintiff, testified substantially as follows:

He first received a letter from the manager of the defendant by Mr. Geo. Myers, of Joplin, Missouri, at Colorado Springs, in September, 1901, regarding the installation of an ice plant. The letter was as follows (formal parts omitted):

“Mr. E. T. Skinkle, of Chicago, advises that you are going to be in Chicago some time next week. If it is possible for you to do so, please come via Kansas City, as I am very anxious to talk with you in regard to installation of one or two ice plants. In fact, I want to arrange my affairs so I can visit the ice plants which, you, now have in operation at an early date.

Please advise me by early mail, if possible, when you will reach Kansas City, so I will be sure to be at home. ’ ’

Later I met the gentleman in Chicago and entered into a contract to install, an ice plant at their works near Joplin. This was in January, 1902. In pursuance of that contract we drew the plans, installed foundations for the machinery, and ordered the machinery and equipment for the plant. We put it in a building furnished us by the defendant which was already built and on the ground at Grand Falls, near Joplin, Missouri. We bought a large part of the machinery from the York Mfg. Company, some from a Chicago firm, some from the Liner Company, of Denver, and some we manufactured. We were interested in a factory in Chicago which made smaller plants, but this was too large for them to handle entirely, hence the purchases made from other sources. The machinery and parts were all shipped to our order at Grand Falls in Newton County, Missouri, and installed under our supervision. We paid the freight on it’ all and the defendant later refunded it to us. The business of the plaintiff is building ice and cold storage plants and installing refrigerating machinery. What we mean by installation is this: We put in cement foundations for the machines which necessitated the hiring of carpenters, misers, masons, the purchase of some rough lumber to make the forms, a certain amount of cement and other matter used in such construction. Into these foundations the templates were set with the proper bolts for attaching the machinery and making it solid. The machinery was then taken from the car, placed on the foundations previously prepared, put onto bolts in same and made fast. These were the compressors. Then the tanks which came in sheets of steel were riveted together in one, two or four battery arrangement, as the case might be. Then the freezing coils and other coils are anchored, and lastly the cans were put in place. These cans, by the way, were bought by the York people from a can manufacturing company in the East. People specialize. Some make cans, some ammonia compressors, etc. We purchased, in making up the parts of this plant, where we could get the best material. All of that material is assembled and put into working condition, and connection is made with the power. In this case we had to connect-up to the main line of shafting of the Southwest Missouri Light Company, which had already been installed by them in this power plant. We bought very little stuff locally, as we had brought practically everything with us that would be necessary, except perhaps a bolt or nut or such, which we happened to be short of. In doing all this you can see we would need some pipe fitters, some pipe men, trench diggers, a few machinists and a carpenter here and there, all working under our skilled erecting engineers. There were some changes in plans and suggestions which took additional time in the installation and, moreover, the installation of an addition-, al part of this plant by the Southwest Light Company, for which we, at their request, furnished the plans and advice — all gratuitously, however. We bought very little pipe for our installation work, though there was a good deal used by the Southwest Company, in the installation of the storage house just, mentioned. It took very little cement for the foundations, as there were but two machines and of a size not to require much. Our .relations with the York People have always been very close. They have a western manager in Chicago, with whom I had a conference as soon as I had made the contract with the Southwest Company. We, the western manager and I, got on the train about the 9th or 10th of January, 1902, and went to York, Pennsylvania, and there drew the plans for the installation of the plant. It was at that time that we entered into an agreement to furnish and install for us a part of the machinery. This to be done under our supervision.

The foregoing was all the testimony introduced by the plaintiff. In order to maintain the issues on its part, the defendant introduced the following evidence:

Mr. George Myers testified for the defendant that he was an official of the defendant company at the time of the installation of the ice plant by the plaintiff; being a director and general manager; that he signed the contract for the purchase of the ice plant covered hy the issues in this suit; that he thought the same was signed in Kansas City, Misspuri; that the plaintiff after signing the contract did install the ice-maldng machines in connection with all the piping needed; also installed all of the cans and other apparatus that was intended to be furnished up to a certain stage, for the purpose of carrying out the contract, which work was done at Grand Palls near Joplin, after the stuff reached" the land; that they were there several months doing the work and the force of men varied; that they were men employed by and working for and paid by the plaintiff; that after the plant was installed they had trouble in making merchantable ice, and representatives of the plaintiff stayed there working over the plant some months. That the experimental period came after six or eight months. That Mr. Weare Parsons was the superintendent who had the work in charge. Pie further testified, that “Exhibit A” offered in evidence by plaintiff was the one signed by him. That when they found they could not make merchantable ice plaintiff “packed up their truck and got out.”

Mr. Weare Parsons testified for defendant substantially as follows:

That at the time of the installation of the ice plant he was working for the defendant; that he was the superintendent of defendant’s interests during the time; that plaintiff purchased a lot of material locally, such as was used in the installation of the work; the material being lumber, hardware, pipe fittings and incidental material -which was necessary for the work; that they shipped in the ammonia compressor with the condenser and air compressor, together with the general line of material required; that after its arrival the plaintiff em/ployed all the common labor necessary and purchased quite a large amount of material locally to use in the erection and installation of the equipment; that the time consumed in the installation lasted from the first of June till the first of November; that they had a force of workmen of from four to fifteen as the work from time to time required; that these men performed their duties under the supervision of the National Refrigerator Company; that the character of the material purchased locally was such as would be required to install their work under like conditions; “in other words, such as was necessary to comply with their contract.” That the York Mfg. Company had a contract with the National to install and did install the ammonia compressor and condenser for them, and that the rest of the installation was by the plaintiff under the supervision of a Mr. Fox. That certain laterals were in wrong and had to be rearranged, a filter installed and a- tweedale system of purification put in that took time and did not work well; that the changing of the laterals and air lines took about two weeks; that the first turnover was made about the first of. July, and the changes and readjustment and water troubles ran through the rest of the period named.

And this substantially was all the evidence, introduced by defendant bearing on the point at issue.

As before stated the findings of the court and the judgment thereof were for the defendant, and the plaintiff duly appealed the cause to this court.

Upon an inspection of the abstract we find that this insistence is true, but we are of the opinion that said omissions are cured by virture of the amendment of Bule No. 13 of this court, adopted December 31, 1920, which amendment reads as follows:

“If in any case any matter which should properly be set forth in the abstract as a part of the record proper, shall appear in the abstract as a part of the bill of exceptions, or vice-versa, such matter shall be considered and treated as if set forth in its proper place, and all objections on account thereof shall be deemed waived, unless the other party shall, within fifteen days after the service of such abstract upon him, specify such objection and the reasons therefor in writing and serve the same upon, the opposing party or his counsel; and in the event such objection be so made, the other party may within ten days,, from the service of such written objection, upon him or his counsel, correct his abstract so as to obviate such objection, if under the facts as shown by the record proper or the bill of exceptions in the trial court, such correction can truthfully be made. ’ ’

While this amendment is not quite as clear in meaning as it might have been drawn, yet the spirit and meaning can scarcely be misunderstood, when its purpose is considered. It provides that “if in any case any matter which should properly be set forth in the abstract as a part of the record proper, shall appear in the abstract as a part of the bill of exceptions, or vice-versa, such matter shall be considered aiid treated as if set forth in its proper place, and all objections on account thereof shall be deemed waived, unless the other party shall, within fifteen days after the service of such abstract upon him, specify such objection and the reasons therefor in writing and serve the same upon the opposing party or his counsel,” etc.

I. There are some preliminary questions to be disposed of before we approach the case upon its merits. First: It is insisted by counsel for respondent that there is nothing but the record proper before the court for consideration, for the reasons that the record proper, as shown by the abstract of the record, fails to show that the motion for a new trial and the bill of exceptions were ever filed.

In reading this rule some three matters are left in doubt: (1) Whether or not the motion mentioned may be made in print as well as in writing. We think the clear meaning of the rule is‘, that the objections to the abstract cannot be made orally, but must be made in writing or its equivalent in purpose, in print. (2) Whether or not the objection mentioned in the rule must be contained in a separate motion from the opposite party’s brief. From a casual reading of the rule one might, be impressed with the. idea that the objections should be contained in a separate motion from the brief, but when we come to consider' the purpose of the motion that purpose will be served just as well if contained in the brief as if in a separate motion. (3) The most serious objection to the rule is that it does not dearly specify what matters can and cannot be cured by the rule. Of course the law must be followed regardless of the rule; in other words, the rule cannot repeal the provisions of the statute regarding any matter. For instance, the statutes specify what matters shall be preserved by the record proper, and what matters must be preserved by bill of exceptions, which statutes must be complied with regardless of the rule. If a matter required by the statute to be preserved in the record proper should, as a matter of fact, be preserved in the bill of exceptions only, or vice-versa, that error would not be cured by the rule, and the opposite party could by his motion call the attention of the court to the fact, that the matter was not in fact properly preserved in the proper legal container. The purpose of the rule is to correct errors of counsel in the preparation of their abstracts of record, where, by inadvertence or oversight, they abstract a matter which was properly preserved in the proper place, but the abstract erroneously shows that it was not preserved in the proper place, but in a-n improper place.

With these preliminary observations regarding the meaning of the rule, we are of the opinion counsel for •respondent are not in a position to take advantage of the rule, though their, objections seem to be well grounded, for the reason that they failed to serve their motion containing their objections to the sufficiency of the abstract upon the appellant within fifteen days after the appellant had served the abstract upon them, as required by said rule. The files of this court show that respondent was served with a copy of the abstract on December 10, 1920, and that respondent’s motion was served upon the counsel for appellant on January 5, 1921, twenty-five days after the service was had upon counsel for respondent, ten days too late according to said rule, to be available.

We therefore hold that counsel for the respondent waived the objections mentioned to the sufficiency of the abstract, and we must disregard the errors suggested in respondent’s motion.

II. While counsel for appellant discuss numerous legal propositions in their brief, the ruling of the court upon but one of them is assigned as error, an<l under the rules of this court we-will ignore all the others. The error assigned is stated by^ counsel in the following language:

“The court erred in finding the issues for the defendant Southwest Missouri Light Company,- and that the contract sued upon, together with the "performance of same, was within the purview of Sections 3027-30401 of the Revised Statutes of Missouri relating to the licensing of foreign corporations in said State, because the"contract and the evidence adduced' regarding the performance of' same shows that the whole transaction was interstate commerce and comprised within the meaning of the words ‘commerce among the several states’, as used in the Federal Constitution, Article 1, Section 8, and that the said transaction was not subject to State regulation, and was hot within the purview of the statutes .of the State of Missouri pertaining to foreign corporations.”

Before taking up the discussion of the error assigned, it may be well to notice certain rules at law involved in this case that have been so firmly established by the State and Federal decisions that they may be considered as elementary.

(1) Under the Interstate Commerce clhuse of the Constitution of the United States, no State can interfere with, lay burdens upon or prohibit the transportation of interstate commerce into this State.

(2) . It is wholly immaterial where the contract is made effecting interstate commerce, and it will be enforced if otherwise valid.

(3) And the ultimate or final disposition of all questions regarding’ interstate commerce rests with the Federal courts.

In support of the assignment of error made by counsel for appellant we are cited to numerous cases, and especially the ease of York Manufacturing Co. v. Colley, 247 U. S. 21. The facts of that case are thus stated by the court:

“The York Manufacturing Company, a Pennsylvania corporation, sued for the amount due upon a contract for the purchase of ice manufacturing machinery and to foreclose a lien upon the same. By answer the defendants alleged that the plaintiff was a foreign corporation,- that it maintained an office and transacted business in Texas without having obtained a permit therefor, and was hence under Texas statutes not authorized to prosecute the suit in the courts of the State, and a dismissal was prayed. In reply the plaintiff averred that the contract sued on was interstate commerce, and that the State statute, if held to apply, was repugnant to the commerce clause of the Constitution of the United States. At the trial it was shown without dispute that the contract covered an ice plant guaranteed to produce three tons of ice a day, consisting of gas compression pumps, a compressor, ammonia condensers, freezing tank and cans, evaporating coils, a brine agitator and other machinery and accessories including apparatus for utilizing exhaust steam for making distilled water for filling the ice cans. These parts of machinery, it was provided, were to be shipped from Pennsylvania to the point of delivery in Texas and were there to bo erected and connected. This work, it was stipulated, was to be'done under the supervision of an engineer to be sent by the York Manufacturing Comr pany, for whose services a fixed per diem charge o.f six dollars was to be paid by the purchasers and who should have the assistance of mechanics furnished by the purchasers, the supervision to include not only the erection but the submitting of the machinery to a practical test in operation before the obligation to finally receive it would arise. It was, moreover, undisputed that these provisions were carried out, that about three weeks were consumed in erecting the machinery and about a week in practically testing it, when after a demonstration of its successful operation it was accepted by the purchasers.

“The trial court, not doubting that the contract of sale was interstate commerce, nevertheless concluding that the stipulation as to supervision by an engineer to he sent by the seller was intrastate commerce and wholly separable from the interstate transaction, held that the seller by carrying out that provision had engaged in local business in the State and as the permit required by the State statutes had not been secured, gave effect to the statutes and dismissed the suit. The case is here to review the action of the court below sustaining such conclusion, its judgment being that of the court of last resort of the State, in consequence of the refusal of the Supreme .Court of the State to allow a writ of error. ’ ’

In disposing of that case the court held that the provision of the contract as to the services of the expert was germane to the transaction as an interstate contract and did not involve the doing of local business subjecting the appellant to regulations of the statute of Texas concerning foreign corporations. In the discussion of the case the court, at page 25, used this language:

“The only possible question open therefore is, was the particular provision of, the contract for the service of an engineer to assemble and erect the machinery in question at the point of destination and to practically test its efficiency before complete delivery relevant and appropriate to the interstate sale of the machinery? When the controversy is thus brought in last analysis to this issue there would seem to be no room for any but an affirmative answer. Genérically this must be unless it can be said that an agreement to direct the assembling and supervision of machinery whose' intrinsic value largely dépends upon its being united and made operative as a whole is not appropriate to its sale. The consequence of such a ruling if made in this case would be particularly emphasized by a consideration of the functions of the machinery composing the plant which was sold, of its complexity, of the necessity of its aggregation and unison with mechanical skill and precision in order' that the result of the contract of sale — the ice plant purchased —might come into existence. In its essential principle therefore the case is governed by Caldwell v. North Carolina, 187 U. S. 622; Rearick v. Pennsylvania, 203 U. S. 507 and Dozier v. Alabama, 218 U. S. 124. In fact those cases were relied upon in the Waycross Case as supporting the contention that a mere agreement for the erection of lightning rods in a contract, made concerning the shipment of such rods in interstate commerce, caused the act of erection to be itself interstate commerce. But the basis upon which the cases were held to be not apposite, that is the local characteristic of the work of putting up lightning rods, not only demonstrates beyond doubt the mistake concerning the ruling as to the Way-cross Case which was below committed, but serves unerringly to establish the soundness of the distinction by which the particular question before us is brought within the reach of interstate commerce.

“Of course we are concerned only with the case before us, that is, with a contract inherently relating to and intrinsically dealing with the thing sold, the machinery and all its parts constituting the • ice plant. This view must he borne in mind in order to make it clear that what is here said does not concern the subject passed on in General Railway Signal Co. v. Virginia, 246 U. S. 500, since in that case the work required to be done by the contract over and above its inherent and intrinsic relation to the subject-matter of the interstate commerce contract involved the performance of duties over which the • State. had a right to exercise control, because of their inherent intrastate character.”

There is no use of considering any more of the cases cited by counsel for appellant, for the reason that if the facts of the case at bar are substantially the same as they were in the York Case, supra, then this judgment must be reversed and the cause remanded for a new trial for the reason the York Case is the latest and controlling case upon that question. But in our opinion the facts in the case at bar are so materially different from those in the York Case, it is not controlling here; and we will now try to point out the differentiations between the two cases.

By referring to the contract sued on in this case, it will be seen that there is no provision that the appellant bound itself to furnish an expert to assemble and construct the ice plant at Joplin, Missouri, as was the fact in the York Case; moreover, in the case at bar the uncontradicted evidence shows that in constructing the plant appellant purchased a lot of material locally, such as was used in the installation of the work, the material consisting of lumber, hardware, pipe fittings and incidental materials which were necessary for the work; that appellant employed all the common labor necessary, consisting of a force of men numbering from four to fifteen, for a period of several months; plaintiff also purchased locally considerable quantities of cement with which io build the foundations upon which the ice plant was to rest. And it would seem that it was the intention of the parties that the labor and material above mentioned was to be employed and purchased locally, for the next to the last clause o'f the contract sued on provides that “six thousand, four hundred and thirty-six dollars [shall be paid] when machines are installed and ready to start, less freight charges and erection expenses advanced by you,” meaning the respondent.

In our opinion the facts just mentioned clearly distinguish this case from the York Case supra, and bring it squarely within the ruling of the Supreme Court of the United States in the ease of General Railway Signal Co. v. Virginia, 246 U. S. 500. The facts of that case are thus stated by the court:

“Just what did the defendant do in Virginia? It employed there about 20 men — 11 signal engineers and .experienced men and 9 laborers — for possibly four or five months altogether. They erected iron signal masts about two miles apart and fitted on them alternating current induction motors, signal arms, gears, relays and' housing, transformers, line* arresters, etc. To reach the rails they dug short, shallow trenches, to an aggregate amount of not over 1,600 feet in a hundréd miles. The .Southern Eailway Company furnished and put up the necessary wooden poles and wires. The defendant’s men applied the last coat of paint to the signal apparatus, the first coats having been applied at the factory.

“The defendant did these things in Virginia only because it could not do them in New York, and it had no desire or intention to establish its business in Virginia. Because of the nature of the defendant’s products it was a complicated, tedious job to install them ready for-use, but the defendant was in Virginia for that purpose and no other. It was merely completing a sale to the Southern Eailway Company, and it did no business and had no relations with the citizens of Virginia except for hiring a few laborers.

“In short, the defendant was doing in the State isolated acts incidental to its manufacturing and selling business conducted in New York. These acts completed, it might or might not ever again have so much as one employee in the State. To force such a casual, occasional entrant to secure a license to do business, continuously to maintain an office, to pay a license tax of $1,000 and an annual registration tax, would be, we respectfully submit, the height of injustice. The very language of the statutes regulating foreign corporations doing business in the State is manifestly ill chosen to achieve such a result.

“This court early decided that single transactions in a State by a foreign corporation, even in the conduct of its ordinary business, did not constitute ‘doing business.’ '[Cooper Mfg. Co. v. Ferguson, 113 U. S. 727.]

“Of course, the whole subject of ‘doing business’ is interwoven with the effect of the commerce clause of the Constitution and many decisions assign one ground or the other apparently without much discrimination. More accurately speaking, however, if a foreign corporation is not doing business, there is no need to discuss the commerce clause, while if it is doing business, it may still be relieved from compliance with State statutes if its business be interstate.”

The holding of the court in that case is well stated in the syllabus of the case:

“A foreign corporation, for lump sums, made and performed contracts to furnish completed automatic railway signal systems in Virginia, in the performance of which the materials, supplies, machinerjq devices and equipment were brought from without, but their installation, as structures permanently attached to the soil, required employment of local labor, digging of ditches, construction of concrete foundations, and painting. Held, that local business was involved, separate and distinct from interstate commerce, ánd subject to the licensing power of the State. [Browning v. Waycross, 233 U. S. 16,]

“The Virginia law imposing a fee for the privilege of doing local business of $1,000 on foreign corporations with capital over $1,000,000 and not exceeding $10,000,-000 (Acts of 1910, c. 53, par. 38a), upheld, as not arbitrary or unreasonable under all the circumstances, though the case is on the border line.”

Another case very similar to this one is that of Browning v. Way cross, 233 IT. S. 16. The facts of that case as stated by the court are as follows:

“The plaintiff in error was charged in a municipal court with violating an ordinance which imposed an annual occupation tax of $25 upon ‘lightning rod agents or dealers engaged in putting up or erecting lightning rods within the corporate limits’ of the city of Way-cross. Although admitting that he had carried on the business he pleaded not guilty and defended upon the ground that he had done so as the agent of a St. Louis corporation on whose behalf he had solicited orders for the sale of lightning rods; had received the rods when shipped on such orders from St. Louis and had erected them for the corporation, the price paid for the rods to the corporation including the duty to erect them without further charge. Tiffs it was asserted constituted the carrying on of interstate commerce which the city could not tax without violating the Constitution of the United States. Although the facts alleged were established without dispute, there was a conviction and sentence and the same result followed from a trial de novo in the Superior Court of Ware County, where the case was carried by certiorari. On error to the Court of Appeals that judgment was affirmed, the court stating its reasons for doing so in a careful and dis-' criminating opinion reviewing and adversely passing upon the defense under the Constitution of the United States (11 G-a. App. 46). From that judgment this writ of error is prosecuted, because of the constitutional question and because under the law of Georgia the Court of Appeals had final authority to conclude the issue.”

In affirming the decision of the state court the Supreme Court of the United States, at page 22, said:

“We are of the opinion that the court below was right in holding that the business of erecting lightning rods under the circumstances disclosed, was within the regulating power of the State and not the subject of interstate commerce for the following reasons: (a) Because the affixing of lightning rods to houses, was the carrying on of a business of. a strictly local character, peculiarly within the exclusive control of State authority.- (b) Because, besides, such business was wholly separate from interstate commerce, involved no question of the delivery of property shipped in interstate commerce or of the right to complete an interstate commerce transaction, but. concerned merely the doing of a local act after interstate commerce had completely terminated. It is true, that it was shown that the contract under which the rods were shipped bound the seller, at his own expense, to attach the rods to the houses of the persons who ordered rods, but it was not within the power of the parties by the form .of their contract to convert what was exclusively a local business, subject to State control,. into an interstate commerce business protected by the commerce clause. It is manifest that if the right here asserted were recognized on the power to accomplish by contract what is here claimed, were to be upheld, all lines of demarcation between National and State authority would become obliterated, since it would necessarily follow that every kind or form of material shipped from one State to the other and intended to be used after delivery in the construction of buildings or in the making of improvements in any form would or could be made interstate commerce.”

In the ease of State ex rel. v. Greenfield, 205 S. W. 619, l. c. 620, regarding a similar contention, this language was used:

“Clearly the defendant is not engaged in interstate commerce, but 'in razing and improving buildings and general construction, and in building fireproof ceilings, partitions, elevators and dumb-waiter shafts, etc. In the very nature of things the business of the company-engaged in such constructions must of necessity be fixed and local where the work is done. It might as well be contended that a farmer is engaged in interstate commerce because he imports his seed and machinery used on the farm from another State, as to say that the defendant is engaged in interstate commerce because it imported some or all the materials it used in the construction of the concrete work mentioned in the record.

“Such shipments are purely incidental to the real business of the company; in the very next contract it obtains it may not be necessary to import a pound of material from another State. This defendant is not engaged in purchasing and shipping cement and lumber from one State to another for commercial purposes, but is engaged in the construction of building elevators, dumb-waiters, shafts, etc., throughout the country, in which various kinds of materials are used, some of which may or may not be imported from a State different from the one in which the work is being done. ■ That the defendant is not engaged in interstate commerce is too plain for further argument.”

The question may be well shown by one of Mr. Benjamin’s illustrations as the distinction between the sale of an article of merchandise and a contract for material furnished and work and labor performed.

In discussing the Statute of Frauds he said in substance, that if a person agrees to purchase a suit of clothing at a price in excess of that provided for by the statute, unless the contract was evidenced by writing, signed, etc., the contract of sale would be void in the absence of such writing, but upon the other hand if a person should go into a tailor shop and order a suit of clothing to be made for him out of a designated piece of cloth, even though the price should exceed the statutory amount, then the contract would be valid and binding, because the contract was for material to be furnished and work and labor to be performed — the former being purely a contract of sale of a completed manufactured article, while the latter would be a contract to ffianufacture the article for the person designated; and I suppose the former contract would not be valid even though the merchant should agree with the purchaser to make certain alterations of the suit in conformity to the wishes of the purchaser before it was to be delivered to him, but in the latter case no completed article exists' and therefore it could not be sold as an article of commerce. It impresses me that the same is true of the case at bar; had the contract been that the appellant sold to the respondent a completed ice-making machine of twenty-five tons capacity daily, with nothing more save perhaps some minor article necessary to have made the delivery complete, the contract of sale would undoubtedly have been good, but that was not this contract; this contract bound the appellant to sell the ice-making machine to respondent, and in addition thereto, to furnish the material and labor which was necessary to erect the plant upon which the machine was to be erected, which required the furnishing of a considerable amount of material and much labor. The doing of the- two latter things brings the case at bar within our statutes which requires a foreign corporation to take out a license in this State before it can do .business herein. This I understand to be the ruling of the Supreme Court of the United States in Railway Signal Co. v. Virginia, supra, and Browning v. Waycross, supra, and we note the same difference in the case of State ex rel. v. Greenfield Co., supra.

There are many other cases of like import which are as follows: St. Louis v. Parker-Washington Co., 271 Mo. 229-242, 196 S. W. 767-770; Wichita F. & S. Co. v. Yale, 194 Mo. App. 60, 184 S. W. 119; Buffalo Refrigerating Mach. Co. v. H. & P. Co., 178 Fed. 696; St. Louis F. P. Co. v. Beilharz, 88 S. W. 512; S. R. Smyth Co. v. Ft. Worth Co., 105 Tex. 8, 142 S. W. 1157, 128 S. W. 1136; Buhler v. Burrowes Co., 171 S. W. 791; General Railway Signal Co. v. Commonwealth, 118 Va. 301, 87 S. E. 598; Hastings Indus. Co. v. Moran, 143 Mich. 679, 107 N. W. 706; Imperial Curtain Co. v. Jacob, 163 Mich. 72, 127 N. W. 772; American Amusement Co. v. Lake Chutes Co., 174 Ala. 526, 56 So. 961; Muller Mfg. Co. v. Dothan Bank, 176 Ala. 229, 57 So. 762; Nickerson v. Warren City Tank Co., 223 Fed. 843.

If we correctly understand the rulings of the Supreme Court of the United States, and of the various states of the Union regarding this question, the judgment of the circuit court should he affirmed; and it is so ordered.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    THE STATE at the Relation and to the Use of SALINE COUNTY v. WILLIAM N. WILSON and EQUITABLE SURETY COMPANY, Appellants.
    Division One,
    June 6, 1921.
    1. REFERENCE: Exceptions to Report: Extension, of Time: Waiver. The extension of the time for filing exceptions to a referee’s report is a matter of discretion in the trial court, as is also a consideration of them if filed without leave after the statutory period for filing them has expired; and failure to object to exceptions filed out of time is a waiver of the untimely -filing. [Following McPike v. McPike, 111 Mo. 1. c. 222, and Clarke v. Kane, 37 Mo. App. 1. c. 263.]
    2 APPEAL: Review of Referee’s Findings: Action at. Law. In an action at law, the findings of the referee will on appeal be reviewed only to the extent of determining whether there is substantial evidence to support them, and to support the trial court’s approval or modification of them. And an action by the county for the recovery of money obtained by the superintendent of its county farm from the sale of corn, mules and cattle, which he in his answer admits he did obtain, but therein avers he paid it out, under authority of law and by direction of the county court, for things which were properly chargeable to the county', as shown specifically by an itemized exhibit attached, being the averment of a counterclaim, is an action at law.

      3. -: -: Act of 1919: Invalid: Unreasonable Classification. The Act of 1919 (Laws 1919, p. 213;¡Sec. 1444, R. S. 1919) declaring that “on appeals in all cases, whether law or equity, in which a referee has been appointed and made a report, the appellate court shall, on. exceptions properly preserved, review the evidence and the findings of fact and conclusions of law of the referee and trial court, and give such judgment as shall be conformable to the law on the evidence,” is invalid, in so far as it relates to actions at law. It divides a natural class, namely, actions at law, into two subdivisions, and requires the law to be administered in the appellate court in one way for one subdivision and in a different way for the other; it requires the appellate court to try de novo all actions at law in which a referee has been appointed, but leaves in force the ancient rule appli- , cable to all actions at law that, on appeal, the findings of the jury, or of the judge sitting as a jury, will be reviewed on appeal only so far as to determine whether they are supported by substantial evidence. Such a classification is arbitrary, unreasonable and violative of constitutional inhibitions, and it also offends the due-process-of-law provisions of the Constitution.
    4. BOND: Liability of Surety. A surety company which executed the bond as surety and each year thereafter received’and accepted the premium for its renewal, with the knowledge and consent of all the parties interested, is liable if its principal is.
    5. SUPERINTENDENT OF COUNTY FARM: No Books or Reports: Contingent Fund. Where the statute required the superintendent of the county farm to keep a book of account, and to present it to the county court on the first day of every regular session, and to turn over to the county treasurer all amounts coming into his hands from any source “except by warrants drawn in his favor by the county court,” and no such account book was kept, but the county court instead required him to make out and file on the first of each month a monthly report, and the items of account for which he says he expended the money received from the sale of corn, cattle and mules were not included in these . reports, he and his surety are liable for the amount of money thus obtained. Nor is there any law authorizing him to build up a contingent fund to be used in paying current expenses, unless the county court by warrant advances expense money on the first of each month or quarter.
    Appeal from Saline Circuit Court.- — Hon. Samuel Davis, Judge.

      Affirmed.

      Harvey & Bellamy for appellant.
    (1) The Superintendent of the County Poor Farm had authority to sell the farm products and other articles of produce raised on said farm and also the livestock belonging thereto, and had authority also to purchase articles for the use of the poor, or for the use or improvement of the farm, or the building’s thereon, and to expend moneys for farm labor and other work for services dones by his order or contact. R. S. 1919, sec. 12212. By virtue of this authority, he sold said produce and live stock and paid out the moneys arising from the sale thereof, or retained the same as such sales were made for the items set out in his counterclaim, or set-off, which were for work done or materials furnished for said farm, and which were for things necessary, and useful for said farm and for the inmates of said poor-house, and were for labor, food, freight on articles, disinfectant and other thing's actually consumed on said farm. All these expenditures are set out in detail in said defendant’s counterclaim, and the evidence in the case shows that each item of this account was paid by Wilson and also for what purpose. (2) The defendant Wilson had a right in this suit (a) to have an accounting with the county court and (b) to be credited with the items of this counterclaim. (a) The plaintiff sues to recover of said Wilson moneys alleged to be due by him to the county from the sale of live stock and produce and avers in the petition “that although said defendant received said money as such Superintendent, yet he has failed and refused to account for the same or any portion therefor, or pay the same over to said county or to the treasurer of said county, but has appropriated the same to his own use.” Plaintiff thus seeks to open the accounts of the defendant, and therefore said Wilson has the right to open his sidé of the account also. When one side of an account is opened, the account is opened for both parties to correct any omission or mistakes therein. 1 Corpus Juris, p. 722; Callaway County v. Henderson, 139 Mo. 521. (b) Sec. 12212, R. S. 1909, contemplates that, subjéct to his duty to make reports to the county court, the superintendent of the poor farm has full control of the farm and is made sole manager thereof, and has the right to sell and buy all necessaries for the farm by virtue of his office. No order of the county court is needed to empower him to sell produce or stock or to purchase necessaries. All these transactions, the statute says, are to be “by the superintendent or by his authority.” He is the authorized agent of the county by virtue of his appointment and all expenditures made by him or under his authority should be paid by the county, if made in good faith and in the exercise of reasonable judgment. Harkreader v. Yernon County, 216 Mo. 693. The evidence shows that said Wilson retained a sufficient amount of money from the sales of said produce and live stock, for the purpose of covering and reimbursing himself for the amounts expended by him, as shown in detail in his counterclaim. It is true the statute requires that the superintendent keep a book account of all transactions, but the evidence shows that this was not done because of the change made by the county court, itself, but it nowhere appears in the statute that such failure to keep such a book deprives the defendant of his right to reimbursement for moneys which he, in the exercise of his authority, as such superintendent contracted and paid in good faith for supplies furnished and work done for the benefit of the county. Nor does the statute provide that the county may refuse to pay items of expenditure justly made, merely because the same were not presented at some particular term of the court. If these expenditures were made by him, he has the undoubted right to reimbursement, if honestly-made, and nothing in the statute precludes, restricts or destroys this right. (3) The finding of the referee is not borne ont by the evidence. In fact the undisputed evidence is to the contrary. The evidence nowhere shows that the county had furnished the defendant any money with which to pay the items set out in his counterclaim. Each and every item of the counterclaim is due and should be paid by the county to said Wilson, and the referee should have so found, and judgment should have been entered by the court in favor of the defendant on his counterclaim, and such counterclaim, being in excess of the claim allowed by the referee, judgment should have been entered for the defendant. (4) The Equitable Surety Company executed the bond sued on at the time of the appointment of defendant Wilson by the county court, as superintendent, in the year 1912, for one year, and it does not cover the periods of time alleged in the petition. The fact that said Wilson paid premiums to said Surety Company during the years 1913, 1914, 1915 and 1916, would seem to us not to extend said Surety Company’s liability during said years, nor bind said Surety Company by way of estoppel, as estoppel is not pleaded. There is no proof against said Surety Company sufficient to show legal liability under the bond sued on.

      Albert B. James for respondent.
    (1) No objections or exceptions were filed to the report of the referee within four days after said report was filed and, therefore, this court cannot consider the exceptions made to such report. Sec. 1442, E. S. 1919; Eeineeke v. Jod, 56 Mo. 386; Gaston v. Kellogg, 91 Mo. 109; Kansas City v. Forsee, 168 Mo. App. 217; Berry v. Eood, 209 Mo. 673; Maloney v. Mo. Pac. Ey. Co., 122 Mo. 106; Price v. Davis, 187 Mo. App. 10. (2) Defendant Wilson had no authority to dispose of property belonging to the county and appropriate it to any purpose whatever, but the money derived therefrom must be paid into the county treasury for the support of the poor. Sec, 12214, E. S. 1919. (3) Claims against the county must be filed with and allowed by the county court, and cannot be made as a counterclaim, as is attempted to be done by the defendant in this case. Sec. 9560, R. S. 1919. (4) The defendant Surety Company having executed the bond originally in 1912, and having accepted annually renewal premiums thereon, from defendant Wilson, up to and including the first of March, 1916, is estopped from claiming that said bond was not in full force and effect during the four, years, by accepting the annual renewal premiums thereon, and the county court being advised of such fact and that such renewal premium was a renewal of said bond for another year, the defendant, Surety Company, became bound each subsequent year to 1912 just the same as for the first year. Building & Loan Assn. v. Obert, 169 Mo. 507. (5) The finding of fact by the referee will not be disturbed on appeal, if supported by substantial evidence. Bissell v. Warde, 129 Mo. 439; Feeney v. Chapman, 89 Mo. App. 371; Citizens Bank v. Donnell 172 Mo. 384; Citizens Co. v. Mc-Dermott, 109 Mo. App. 306; Vogt v. Butler, 105 Mo. 479.
   GRAVES, J.

-This is an action upon an official bond. March 25, 1912, defendant William N. Wilson, having been recently appointed as superintendent of the County Farm of Saline County, and being required to give a bond for his 'official conduct, gave the bond here involved, with his co-defendant, Equitable Surety Company, as surety thereon. The condition of the bond reads:

“The condition of the above bond is such that, whereas, the said William N. Wilson was on the 5th day of February, 1912, duly (1) appointed in the office of (2) superintendent of the County Farm of the County of Saline, in the State of Missouri, and has been duly commissioned. Now, therefore, if the said William N. Wilson shall (3) faithfully account for all money belonging to the County of Saline that shall come into his hands and exercise due diligence and care over the property belonging to the County of Saline under his control, then this obligation to be void, otherwise to remain in full force and effect.”

Wilson was re-appointed in the years 1913,1914, and 1915, and paid the premium for the renewal of this bond for each of said years. This was done with the knowledge and consent of the County Court of Saline County. After the conclusion of his fourth year of service, and after his last monthly settlement with the county court, it was discovered that Wilson had sold certain property on the county farm, and had failed to account therefor, in any of his divers monthly reports, during his four years service. This suit followed. In the petition it is charged that Wilson sold from such farm, and failed to account therefor, the following property, viz.:

Dec. — 1913, 200 bu. corn for..........$200.00

May 6, — 1914, 2 mules for............. 370.00

Dec. 1, — 1914, 3 heifers, for........... 100.00

Sept. — 1915, 5 heifers and bull for...... 210.00

Total $880.00

The petition further avers that in March, 1915, Wilson reported the sale of the mules at the sum of $155 and accounted for such sum of $155, and gives credit-for such sum, leaving a charge against Wilson of $645. Judgment was asked for the penal sum of the bond ($2,000), to be satisfied by the payment of the amount found due the county.

Each defendant first filed separate answers in the nature of a general denial. Later the defendant Wilson filed an amended answer, in which he makes a number of admissions, and then proceeds thus:

“This defendant, for further answer to the plaintiff’s petition, states that immediately after his appointment as above stated, as superintendent of the County Farm and Poor House of Saline County, Missouri, he entered upon the discharge of his duties as such; that as such superintendent it became his dutv from time to time to sell and dispose of various articles of produce and the surplus stock that accumulated on said farm; that in caring for the property belonging to the said Saline County on said farm and the indigent poor persons kept in said farm and in said Poor House, it became necessary and it was his duty from time to time to make expenditures and outlays of said cash items for labor, supplies and other things necessary for the conduct of said farm; that in order to meet said expenses long before the time mentioned in the plaintiff’s petition, and at such time as well, he was directed by and it was understood by and between the defendant and the County Court of said Saline County that he should keep on hand to meet such cash contingent items a said small sum of cash out of the proceeds of crops, stock or other produce sold by him off of said farm; that this defendant during all the above time did so withhold and keep in his possession for expenses and expenditures of this nature a total of six hundred and eighty-four ($684) dollars, out of which said amount at the end and close of his administration he turned back to the plaintiff county as surplus in said contingent fund the sum of one hundred and sixty-nine ($169) dollars, leaving a net balance of five hundred and fifteen ($515) dollars placed in his hands by the plaintiff to be expended for the contingent items aforesaid; that the aforesaid sum was the total amount in his hands during the years 1913,1914 and 1915, being the times alleged in plaintiff’s petition that said sums were so withheld by him.

“That this defendant expended out of said fund for the purposes and uses of said farm and in connection with the management, and with the authority conferred upon him by law, and under authority and direction of the County Court of said Saline County, sums amounting to five hundred and seventy-three dollars and eighty-three cents ($573.83); that all of said items and sums so expended were outside of and in addition to those contained and set forth in his regular monthly report of expenditures made to the County Court of 'said Saline County, for allowance, and above all other accounts and bills charged or credited to said Saline County, by him, the defendant, and constituted only cash items that were necessary to be paid at the time of the respective transactions upon which said sums were paid, and not the usual subject of credit or charge accounts; this defendant has made out in full a statement and account of all such items so expended by him in his capacity as superintendent of the said County Farm and Poor House, and as agent in this capacity of Saline County, Missouri, during said period; that said statement of account of expenditures so made by him is annexed to this answer and is made a part thereof, being marked ‘Exhibit 1,’ and setting out item by item cash expenditures so made by him out of said funds.

“That this defendant has fully complied with all of his duties and responsibilities as superintendent of the County Farm and Poor House of Saline County, Missouri, during the term of his employment; that he has fully accounted to and set forth from time to time to the county court all disbursements and expenditures made by him, both in connection with the ordinary charge accounts connected with the management of said institution, as well as in the disbursements and expenditures of the incidental fund entrusted and permitted to his care by the County Court of Saline County. That by an oversight in turning over the surplus in his hands at the-termination of his employment as superintendent, .this defendant paid and turned into the treasury of Saline County, upon -his final statement and settlement, fifty-eight dollars and eighty-three cents ($58.83) in excess of-the amount received by him for use and expenditures in the cash or contingent funds entrusted to him by the County Court of Saline County during his said term of employment.

“Wherefore, your defendant, having fully answered the petition of the plaintiff, respectfully asks the court that an accounting concerning these items alleged to he due to and from the plaintiff and the defendant not heretofore admitted to be settled be had and that the amount and balance due this defendant be determined and adjudged in his favor and against the plaintiff, and that a full statement and settlement of the aforesaid account between Saline County, Missouri, and this defendant as the agent of Saline County, Missouri, and superintendent of its County Farm and Poor House, as above stated, be had and fully determined, and that full justice be rendered to each of the parties in the premises as is made to appear by the evidence, and for such other remedy and relief as to the court may seem proper.”

To this answer was attached a long itemized account, as indicated above. By reply all this new matter in the answer was specifically denied, and the issues in the case thereby closed. The reply then further proceeds:

“The plaintiff for further reply herein states that said defendant, Wilson, was appointed superintendent of said County Poor House and County Farm by the County Court of Saline County, and took charge thereof under said ■ order and acted under the statutes of the State of Missouri, and made and filed bis reports to the county court of said county, and that the county court in open session examined same, passed upon same, believing same to be correct and believed that said reports showed all money and property in the hands of said defendants, and that said defendant, having heretofore in open court filed these said reports and the said court having acted upon the same and finally adjourned, the said defendant, Wilson, is estopped from denying the correctness of his said reports, and plaintiff sets up and pleads an estoppel in bar of defendant’s answer, and that defendant can not now deny the correctness of his said reports so made to the court.

“Wherefore, plaintiff prays judgment as in its petition asked.”

The court appointed Hon. Eobert M. Eeynolds as referee in the cause, and after hearing the case, he made his report to the court on March 7, 1918, being at the January term of the court. After certain formal findings this report of the referee makes the following findings of facts:

“That during his said term as superintendent as aforesaid, the said Wilson, as said superintendent, did about the-day of December, 1913, sell and deliver of the property of Saline County, Missouri, a lot of corn, of about 200 bushels, then in his hands, to one Azo Potter for the sum of $120, and receive the proceeds of sale thereof in said sum in cash; and likewise about the-day of September, 1915, said defendant Wilson, as superintendent, did sell and deliver of the property of Saline County, Missouri, five heifers, then in his hands, to one Thomas Carpenter, for the sum of $185, and received the proceeds of sale thereof in said sum in cash; and likewise, about the 6th day of May, 1914, the said Wilson, as said superintendent, did sell and deliver of the property of Saline County, Missouri, then in his hands, two mules to one Thomas Conway for the sum of $370, and received the proceeds of sale in said sum in cash therefor; that thereafter he accounted to and paid to plaintiff, the County of'Saline, on account of said mules, the sum of $155 of the purchase price received by him therefor.

“That the remainder of'said purchase price for said mules in the sum of $215, and the proceeds of the calves sold Thomas Carpenter in the sum of $185, and the proceeds of the corn sold to said Azo Potter in the sum of $120, has never been accounted for to the plaintiff, or paid into the county treasury, but remains unaccounted for by defendant Wilson and due the plaintiff by him.

“That the defendant during each and every month of his term or terms of office as said superintendent, from the 25th day of March, 1912, to the 1st day of February, 1916, made full report to the County Court of Saline County, Missouri, of all charges and expenses incurred for the use of the County Farm, and of the poor kept thereon, and for the use and improvement of the Poor Farm and buildings thereon, and for farm labor and other work and services done by his order or contract, and of all bills due on account thereof, and of the .parties to whom the same was due, to the time of each of said reports, and the said county court, upon examination thereof, caused to be drawn to each and every party to whom said bills or charges were due a warrant therefor, which said warrant was thereupon delivered to said parties, or in lieu thereof would cause its warrant to be drawn in favor of said defendant Wils.on for the aggregate sum of all said bills and charges, for which individual warrants‘were not separately issued, and delivered the same to the said Wilson, with which said defendant Wilson might settle all said bills and charges with the person or persons to whom the same were respectively due, and that the items set out in defendant’s counterclaim herein were and are items for which tne said county court had so furnished defendant the money with which to pay the same, except the items here now following, to-wit:

“Cash paid for Skilinski cork leg ... $25.00

‘ ‘ Cash paid for smallpox patient .... 15.00

“Cash paid for help for attendant for sick patient................. $3.00

“Aggregating the sum'of $43, and for which said items in said sum of $43, or any other amounts the plaintiff was never at any time liable.

“That at the expiration of defendant Wilson’s said term of office in February, 1916, the plaintiff paid to him all sums that were due him upon any and every account, and that thereafter there remained nothing due him from the plaintiff or its county court, but there remained in his hands due the plaintiff the said sum of $520, the proceeds of the sale of corn to Azo Potter and calves to Thomas Carpenter and mules to Thomas Conway, aforesaid, of which plaintiff had no knowledge.

‘ ‘ That the defendant Wilson was never at any time during his said term or terms of office as said superintendent, from the 25th day of March, 1912, to the 1st day of February, 1916, permitted by the County Court of Saline County, Missouri, to. sell the property of Saline County, Missouri, or any part thereof, coming into his hands or under his possession or control as said superintendent, and to hold the proceeds thereof as a contingent fund out of which to pay any bills or expenses incurred, and that during said term or terms of office he had no such contingent fund in his hands, and the moneys derived by him from the sale of property as aforesaid were derived from sales of property belonging to the county in his hands as said superintendent, but which said sales were neither reported to said county court by him nor known of by the court from any other source; nor did said county court know that he had any moneys from such source in his hands.

“Said referee further reports that by reason of the facts so found and stated the defendant Wilson has made breach of the conditions of his said bond, and that the findings should be against the defendants and each of them upon defendants ’ answer and counterclaims, and in favor of the plaintiff, and that the findings upon the petition should be in favor of the plaintiff and against the defendants and both of them, and that plaintiff should have and recover of defendants upon the bond herein the full penal sum thereof, $2,000, to be satisfied, however, by the sum of $520 and interest thereon, and the costs and expenses of this suit.”

No exceptions to the report of the referee were filed until after the lapse of the January term. The record shows the filing of the exceptions to have been on May 13, 1918, at the May term of the court. The record fails to show any extension of time for the filing of such exceptions, as it also fails to show any objections to the filing of them out of time. The record does show the consideration of the exceptions by the circuit court at the September Term, 1918, and the overruling of the same at that time, and further the approval of the report of the referee, and the entry of judgment in pursuance thereof. This outlines the case.

I. Respondent suggests that the exceptions to the referee’s report were not filed within four days, as required by Section 1442, Revised Statutes 1919, and for that reason there is nothing for review. The strict letter of this statute has been obviated in many ways by the appellate courts.

In Clarke v. Kane, 37 Mo. App. l. c. 263, Thompson, J., ruled that the party waived the time of filing by not making timely objection to a filing made some fifteen days after the report of the referee was made. In McPike v. McPike, 111 Mo. l. c. 222, Gantt, J., ruled that the filing of the exceptions one day after the date given by the court for the filing of exceptions did not make it compulsory upon the trial court to strike out such exceptions upon motion, of the opposing party. He ruled that the extension of time for filing exceptions was a matter of discretion in the trial court, and in effect ruled that, when the trial court in McPike’s case overrruled the motion to strike out the exceptions, such court was exercising its discretion in the extension of time for filing. To like effect is State ex rel. v. Woods, 234 Mo. l. c. 23-24.

We are cited to the Reinecke v. Jod, 56 Mo. l. c. 387. This case simpty holds that the trial court might have overruled the exceptions, because filed out of time, but this court reviewed the record as if the exceptions had been timely filed. In other words we did not disturb the discretion of the trial court. Gaston v. Kellogg, 91 Mo. l. c. 109, is also cited, but this case cites the Reinecke, case, supra, and goes no further in its ruling. To like effect is Maloney v. Ry. Co., 122 Mo. l. c. 114-115. The matter of the trial court’s discretion to extend the time under the statute was not discussed. Berry v. Rood, 209 Mo. l. c. 673, is a case where ho exceptions were filed and hence not in point. The foregoing are all the cases from this conrt pointed ont by learned counsel for respondent. We adhere to the McPike and Woods cases, supra. The trial court was guilty of no ill-founded discretion in hearing the exceptions, and the plaintiff waived the time by failing to challenge the exceptions as being out of time.

II. The appeal was granted in this case on November 6, 1918, and the short transcript filed here February 3, 1919. An agreed continuance delayed the heáring in this court. This is an action at law, and was frst heard by a referee. The petition states a pure' action at law. The answer, whilst it has a prayer in a somewhat equitable form, in fact and law amounts to a counterclaim. Defendant in effect admits that, he got the money sued for, but avers that he paid it out under authority of law, and by direction of the county court for matters which were properly chargeable to the county, and to this end sets out the items of payments which he alleges that he made. Such pleadings do not make an action in equity, although they may have been sufficient for a compulsory reference in a law case. We hive gone into these details to determine a matter of practice. We have long ruled that in actions at law, although heard by a referee, this court will only review the evidence to such an extent as will enable us to determine whether. or not there is substantial evidence to support the findings of the referee, and of the trial court approving or modifying-such findings. [State ex rel. v. People’s Ice Co., 246 Mo. l. c. 202; St. Louis to use v. Parker-Washington Co., 271 Mo. l. c. 241, et seq.] Up to the Parker-Washington Co. case, supra, there were some inaccuracies of expressions in some cases, but no attack upon the principle. The first discordant note appears in a short dissent in the Parker-Washington case, supra. However, this slight discordant note in the Parker-Washington case became a roaring sound (with substantial judicial support) in Johnston v. Star Bucket Pump Co., 274 Mo. 414, l. c. 451. But the storm subsided in Roloson v. Riggs, 274 Mo. 522, l. c. 528, where the rule in the Parker-Washington case received the full concurrence of four judges. That rule, as succinctly stated in Johnston’s Case, 274 Mo. l. c. 424, is:

“The Parker-Washington Company case simply holds that in a case of compulsory reference, where the issues involved are. issues purely at law, and where the trial court has approved the findings of fact made by the referee, such findings, so approved, will not be disturbed by this court, if there is substantial evidence to support such findings. In other words, that this court, in such case, will not review the evidence to determine its weight, but will only review the evidence to determine the fact as to whether or not there is substantial evidence to support the findings. Such findings in such a •case stand here upon the same plane as the verdict of a jury in a law case, or as the findings of a court in a law case where no jury has been called.”

From the Roloson case on matters moved smoothly, until 1919, when there was passed an act (Laws 1919, p. 213), now Section 1444, Revised Statutes 1919, which reads:

“On appeal in all cases, whether law or equity, in which'a referee has been appointed and made a report, the appellant court shall, on exceptions properly preserved, review the evidence and the findings of fact and conclusions of law of the referee and the trial court, and give such judgment as shall be conformable to the law on the evidence.”

In the brief of respondent in this case, it is urged that “the finding of facts by the referee will not be disturbed on appeal, if supported by substantial evidence.” This conflicts with this statute, and we are (before considering the merits of the case) brought face to face with this statute. In other words, shall we follow the long established rule of this court in determining the case, or shall we weigh the evidence, in this a law case, and try the case here de novof The applicability and the force and effect of this statute is forced upon us at the very threshold of the case upon its merits. We shall meet the situation as presented.

It has been ruled in Division Two of this court that this,statute has no application to' appeals pending at the time the statute became effective. [Christine v. Luyties, 217 S. W. 55; Universal Const. Co. v. City of St. Louis, 223 S. W. 931.] These cases excluded the statute, and applied the' rule in the Parker-Washington case, and they had the full concurrence of Walker, J., who had concurred in result in the Roloson Case, supra, when it was determined by our full court.

The present appeal was pending here long before the Act of 1919 became a law, and we might rule this case upon the two cases from Division Two, but we prefer to meet this statute face to face. We think the statute creates an arbitrary classification of law eases, and thereby does violence to constitutional inhibitions, which we will note later.

The Constitution, creates three departments of state government (Art. Ill) and commits them to separate magistracies, and restricts each of these magistracies from unduly interfering with the duties and prerogatives of the others. This court will not entertain an action to either prohibit or compel either executive or legislative action, and it has been held that the legislative power can not destroy the prerogative of this court in matters of contempt. [State ex inf. v. Shepherd, 177 Mo. 205; State ex rel. v. Bland, 189 Mo. l. c. 218.] But we purpose no discussion of this general topic, and express no'opinion thereon. Those cases already written speak for themselves. Whilst we will not interfere with legislative action, we will take the finished product (the law) and measure it by the yardstick of the Constitution. This we shall do with the Act of 1919.

The Constitution recognizes two classes of cases, [Sec. 1, Art. VI.] In this section the organic law says: “The judicial power of the state, as to matters of law and equity . . . shall he vested in the Supreme Court” and other named courts. In so doing it but recognized the common law classification of cases. In civil cases in this State the two classes were recognized, under separate practice acts, from the organization of the State up to the adoption of the civil code, and since then wé have the recognition of the two classes by the code, hut we say that one is heard upon the law side, and the other upon the equity side of the same court. [Johnston v. Pump Co. supra.] And be it further said that whilst we had references in law cases, yet we preserved the same principle throughout. If a law case was tried before a jury, the finding of fact by such jury, if sustained hy substantial evidence, was binding upon this court. If the same, or similar case, had been tried before the court, without a jury, the findings of fact by the court, if sustained by substantial evidence, were and are binding upon this court. And in the third method of trying a law case, where compulsory reference is applicable, the laws of the State give the findings of fact made by the referee the status of a special verdict, and these findings when approved by the trial court, and when founded upon substantial evidence, were, and should be, binding upon this court. This was the public policy of this State up to the Act of 1919. This public policy recognized law cases as one class, and equtiy cases as another. In law cases it recognized the principle that whoever found the facts, such findings, if supported hy substantial evidence, were binding here. There was no trial de novo in law cases. This statute clearly directs a trial de novo in law cases “in which a referee has been appointed and made a report,” because it says “the appellate court shall . . . review the evidence and the findings of fact and conclusions of law of the referee and the trial court, and give such judgment as shall he conformable to the law on the evidence.”

If this statute does not compel a trial de novo in this alleged class of law cases, then we do not know how one could be drawn for such purpose. Bearing in mind that the public policy of this State (as expressed in its statutes and court decisions) has been to make the findings of the trier of facts, in law cases,, if supported by substantial evidence, binding here, what reason exists of selecting this special class of.law cases (the class made by the Act of 1919) and making them triable de novo here? Heretofore if the trier of the facts were a jury, a judge, or a referee, no trial de novo here was permitted in a law case. By this Act of 1919, if a law case chances to be tried by a referee, then it must be tried de novo here. On the other hand had this same case been tried by a jury, or by the court, without a jury, there could be no hearing de novo in this court. The trial court did not have to refer this case, simply because a long account was involved. In Ice Co. v. Tamm, 138 Mo. l. c. 389, Gantt, J., said:

“It is true, as well held in that case, that the court need not refer a case, even if a long account is to be examined., but it does not follow that an erroneous reference may not be made under the ostensible authority of that statute.”

See also Fitzgerald v. Hayward, 50 Mo. 516. So that this case might have been otherwise tried by this court. This, however, is only ,to illustrate the arbitrary character of the act of the Legislature in saying, by this Act of 1919, that if the court saw proper to refer a law case, then such law case must be tried de novo in this court. The act singles out a portion of a natural and well recognized class without reason or substantial basis. To illustrate further; two plaintiffs have the same character of a law case stated in their petition. In such cases the defendants plead an offset or counterclaim, involving a long account. The trial court says to plaintiff A, I will refer yonr case, but, feeling more like work the next morning the court says to plaintiff B, this ease will be tried without a reference. Both plaintiffs recover, and both cases reach this court, and under this Act of 1919, in A’s'case we would have to try the matter de novo upon the evidence and law, and in B’s case we could not give him such a trial. Is the classification made by this act reasonable? We concede to be true, what Williams, C., thus said in Bank v. Clark, 252 Mo. l. c. 30:

“A statute is not special or class legislation if it apply to all alike of a given class, provided the'classification thus made is not arbitrary or without a reasonable basis. ’ ’

What is the reasonable basis for the classification made by this act? Why should one law case be tried do novo as in equity, and another law case be tried here solely upon errors, with the findings of fact binding here ? To go further: Suppose after we tried the instant case de novo, we reversed and remanded it, and upon a retrial nisi, the trial court declined to refer, and tried the case, and appeal was taken by defendant, as is the case now. To the. parties we would have to say we can not hear your case de novo, on this appeal, because there was no reference, trial and report. Is there, in‘the language of Judge Williams, a “reasonable basis” for the classification-made in this act?

The rule as to class 'legislation and as to equal protection of the laws, covered by our Constitution is tersely stated by Blair, J. (then a Commissioner of this court), in State ex rel. v. Railroad, 246 Mo. l. c. 514:

“The constitutional prohibitions against.class legislation and the denial of equal protection of the laws in no wise -deprive the Legislature of all discretion in. the matter of defining the classes to which its enactments shall apply, and it is only when the classification attempted is arbitrary, unreasonable and unjust that these constitutional provisions inhibit such legislative action. The Legislature’s broad discretion with respect to the classifying of persons and objects for the purposes of legislation is not at all subject to revision by the courts, however unwisely it may seem to have been exercised in an occasional particular instance. When, however, it clearly and beyond a reasonable doubt appears that the legislative power has been transcended and that a particular act arbitrarily, unjustly and unreasonably marks particular persons or things as the objects of burdensome legislation and exempts therefrom others of the same natural class it is necessary to point out that fact and give to the constitutional provisions in question their intended effect. It is settled law that a classification for legislative purposes ‘must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis’ (Gulf Railway Company v. Ellis, 165 U. S. 150; Billings v. Illinois, 188 U. S. 97; State v. Loomis, 115 Mo. l. c. 314; Powell v. Sherwood, 162 Mo. 605; State v. Gregory, 170 Mo. l. c. 604, 605; State v. Cantwell, 179 Mo. l. c. 265; State v. Tower, 185 Mo. l. c. 94; State v. Swagerty, 203 Mo. l. c. 523; State ex inf. v. Standard Oil Co., 218 Mo. l. c. 369) and, also, that the distinction observed in marking the boundaries of the class to which the resulting enactment shall apply must be one which ‘ is not arbitrary, but rests upon some reason of public policy growing out of the condition of the business of such class’ (State v. Swagerty, supra, l. c. 524, 525, and cases cited); it ‘must be grounded upon a reason of a public nature’ (Brady v. Mattern, 125 Iowa, l. c. 163; Kane v. Erie Ry. Co., 67 C. C. A. l. c. 658) and ‘must be of such a nature as to mark the objects thus designated as peculiarly requiring exclusive legislation’ and ‘as will, in some reasonable degree at least, account for or justify the restriction of legislation’ (State ex rel. v. Hammer, 42 N. J. L. 440). The soundness of these principles is undenied and logically undeniable and it remains to compare the act in question with the standard they fix.”

Had the instant law case been tried by the learned circuit judge who approved, the findings of fact made by his referee herein, and had he made the same findings that he approved, under this Act of 1919 there would have been no hearing de novo in this court. Now it is said, by this Act of 1919, a referee was appointed and made a finding of facts, which finding was approved and adopted by the court, therefore there must be a hearing de novo on the evidence under the law .

Does such a classification meet the demands of the Constitution, as fully discussed by our learned brother? We think not. The classification made by this act is not only without reasonable basis, and therefore makes the act unconstitutional, but in my view it further offends the “due process of law” provisions of our organic law.

This disposes of the law, without discussing the more interesting topic as to whether or not the legislative branch of the government can say to this court, and other constitutional courts, through what particular nose-glasses we shall review each appellate record.

III. The Surety Company has no defense, further than that made by Wilson. It executed this bond, and each year thereafter received and accepted the premium for its renewal, with the knowledge and consent of all parties interested. The full facts are pleaded in the petition, and found by the referee. The Surety Company is liable, if Wilson is liable.

We shall not go into the details of the evidence as to Wilson’s defense. By Section 12212 he is required to keep a book account. By Section 12213 he is required to present this book account on the first day of every regular session. By Section 12214 he is required, to turn over to the county treasurer all amounts coming into his hands, from any source, “except by warrants drawn in his favor by the county court.”

Instead of inspecting this book, which the -law required to be kept, and which was not kept, the county court required Wilson to make out and file a monthly report the first of each month. The items of his counterclaim he says were not included in these monthly reports, nor were the sales of the farm products sued for herein, included, except the mules, and they were falsely reported at $155 instead of $370. There is no authority in law for the alleged contingent fund, unless the county court should by warrant advance his expense money on the first of each month or quarter, for the going month or quarter. There are some suggestive things in the testimony, but it suffices to say that there was very substantial evidence upon which the referee could have and did base his findings of fact, set out in the statement. Under those findings the judgment should be, and is affirmed.

All concur.