text:
    ARTHUR HOWER, Appellant, v. ELLEN J. ERWIN.
    Division One,
    May 31, 1909.
    1. DEED OF TRUST: Release by Assignment of Note. The mortgagee, who for a valuable consideration assigned before maturity the note whose payment was secured by a deed of trust, had no authority under the statute (Sec. 7094, R. S. 1889) to release the deed of trust by executing, in 1889, after the note’s maturity, a deed of release. Such release deed, executed without authority from the owner and holder of the note, was void.
    2. -: Limitations: Twenty Years. A suit to foreclose a deed of trust executed in 1884, to secure a note falling due in 1889, was not barred before 1909.

      3. -: -: Executed Prior to Act of 1891: Meaning of ■ Statute. Sec. 4276, R. S. 1899, providing that “no suit, action or proceeeding under power of sale to foreclose any mortgage or deed of trust, executed hereafter to secure any obligation to pay money or property shall he had or maintained after such obligation has been barred by the statute of limitation of this State,” applies only to deeds of trust executed after said section was enacted in 1891; and Sec. 4277, providing that, “Nor shall any such suit be had or maintained to foreclose any such mortgage or deed of trust heretofore executed to secure any such obligation after the expiration of two years after the passage of this act” in 1891, refers to mortgages and deeds of trust securing notes barred at the time the act took effect, and granted two years of grace in which to foreclose such mortgage or deed of trust. If neither note nor deed of trust was barred at the time the act took effect, the then existing deed of trust was not barred for ten years after the note was, barred. So that, where the note was executed on June 2, 1884, payable in five years after date, it became due June 2, 1889, and, no payment of either principal or interest having been made, it was barred by limitations on June 2, 1899; but the deed of trust securing its payment was not barred until June 2, • 1909; and a suit to foreclose the deed of trust, begun on June 16, 1904, was not barred, but timely brought. The Act of 1891 (Secs. 4276 and 4'277, R. S. 1899) has no application to such deed of trust.
    Appeal from Crawford Circuit Court. — Hon. L. B. Woodside, Judge.
    Reversed and remanded' (with directions).

      A. H. Harrison for appellant.
    (1) The note in suit, being dated June 2, 1884, and being due five years after date, did not mature .until June 2, 1889, and was not barred by limitation until June 2,1899, and the plaintiff could1 institute suit to foreclose the mortgage or deed of trust securing the note at any time within twenty years after the maturity of thefnote, and this suit being filed the 16th day of June, 1904, plaintiff’s cause of action was not barred by limitation. Little v. Reid, 75 Mo. App. 270; Stockton v. Teasdale, 115 Mo. App. 245; Bumgardner v. Wealand, 197 Mo. 433; McCauley v. Brady, 123 Mo. App. 558; Martin y. Teasdale, 212 Mo. 614. (2) The note sued upon having matured June 2, 1889, was not barred until June 2, 1899, and theréfore Sec. 4277, E. S. 1899, which was first passed in 1891, did not apply in this case, as that act was applicable only to mortgage or deed of trust securing notes barred when the act was passed. Bumgardner v. Wealand, 197 Mo. 437; Stockton v. Teasdale, 115 Mo. App. 252; McCauley v. Brady, 123 Mo. App. 558; Martiu v. 'Teasdale, 212 Mo. 614. (3) The land described in the mortgage not being in the actual possession of any person, the right to foreclose the mortgage existed for twenty years after the maturity of the obligation it was given to secure. Eyermann v. Pirón, 151 Mo. 116; Stockton v. Teasdale, 115 Mo. App. 248; Bumgardner v. Wealand, 197 Mo. 433. (4) Appellant, as indorsee and holder of the note, was the real cestui que trust, and the only party authorized by law to release the deed of trust or mortgage. Sec. 7094, E. S. 1889; Ewing v. Shelton, 34 Mo. 518; Bank v. Ins. Co, 145 Mo. 160. (5) The release deed executed by Nathan Y. Barlow was Without authority, as shown by the record, and did not operate as a release of the deed of trust or mortgage. Sec. 7094, E. S. 1889; Lakenan v. Eobards, 9 Mo. App. 179; Joerdens v. Schrimpf, 77 Mo. 383; Bank v. Grew, 84 Mo. 478; Lee v. Clark, 89 Mo. 553; Hagerman v. Sutton, 91 Mo. 533; Bank v. Trame, 112 Mo. 514; Peld v. Eoanoke Investment Co., 123 Mo. 603; Kelly v. Stead, 136 Mo. 430; Borgess Investment Company v. Vette, 142 Mo.- 574; Bank v. Life Ins. Co., 145 Mo. 160.

      Frank H. Farris and A. L. Reeves for respondent.
    It must be conceded that the note and mortgage, not being barred at the time of the passage of the Act of 1891, now Secs. 4276 and 4277, E. S. 1899', the defense of limitations raised by respondent must be ruled against her. Bumgardner v. Wealand, 197 Mo. 439. Respondent, however, rests her case upon the payment of the note. Where a mortgage security takes the form of a deed of trust, the legal title is vested in the trustee, and he is, therefore, the proper person to execute a release, but his authority is limited by the terms of the deed, and he cannot give a valid release without the payment of the debt secured or through performance of the condition of the trusts. 27 Oyc. 1417. It has been held in many jurisdictions that a release or entry of satisfaction made by the trustee, when the secured debt had not been paid, and when the act is not authorized by the holder of the obligation, will not discharge the lien of the trust deed as between the original parties, nor as to subsequent purchasers or encumbrancers who are chargeable with notice of the non-payment of the debt; but as to those who had no notice and relied on the title as shown by the record, whether as a purchaser from the mortgagor, or as a subsequent encumbrancer, the trustee’s release would be effective both at law and in equity. Lennartz v. Quilty, 191 111. 174; Stiger v. Bent, 111 111. 328; Williams v. Jackson, 107 U. S. 478. The evidence was sufficient to warrant the finding of the court for defendant, on the theory that the debt secured by the mortgage has been paid and the lien on the land discharged. The note and mortgage were more than twenty years old. No interest is claimed to have been paid, and no recognition of the debt by any one, other than by the execution of the papers, for more than twenty years. A serious doubt arises if the note offered in evidence is the one described in the mortgage. The note in evidence recites that it draws interest from maturity; the mortgage recites the execution of five interest notes for $400' each, due in 1, 2, 3, 4, and 5 years, respectively. What has become of them? How could they be issued in conjunction with a note which would draw no interest until after maturity? If they were issued and unaccounted for, the presumption is they were paid. If they were promptly paid at maturity, is not the presumption of payment of the note so strong that, when supported by the acknowledged statement of the trustee in a deed of release duly of record for years, sufficient to support a finding that the note was paid1 and the lien discharged in the absence of anything to the contrary? McNair v. Lott, 34 Mo. 285; Clapp v. Leavens, 164 Fed. 320; Cape Girardeau Co. v. Harbinson, 58 Mo. 96; Russell v Whitely, 59 Mo. 196; Chiles v. School District, 103 Mo. App. 243; Cobb v. Houston, 117 Mo. App. 648. The presumption of payment of a note from lapse of time is a question of fact and law to be determined by the court from all the evidence. Lewis v. Sehorem, 93 Mo. 26; Pratte v. Coffman, 33 Mo. 71; Chappel v. Allen, 38 Mo. 223. A mortgage is discharged by the payment of the debt, though the discharge is not recorded. McNair v. Pieotle, 33 Mo., 57; May v. Mortgage Co., 138 Mo. 452; R, S. 1889, secs. 7094 and 7095.
   WOODSON, J.

This case originated in the circuit court of Crawford county, and had for its purpose the foreclosure of a deed of trust, conveying certain lands lying in said county, executed by Henry A. Morrison, to N. V. Barlow, trustee, to secure his promissory note, dated June 2, 1884, for the sum of $4,1)00, with ten per cent interest, payable to James Bauer, due and payable five years after its date.

The answer Was a general denial, a plea of payment and the Statute of Limitations.

The reply was a denial of the new matter pleaded in the answer and the unconstitutionality of the statutes set up in bar.

A jury was waived, and the court found the issues for the defendant and entered judgment accordingly. In due time, and in proper form, the plaintiff appealed the cause to this court.

The facts of the case are few and they are practically undisputed. On June 2, 1884, Morrison executed his note to James Bauer for the sum of $4,000, due five years from date, with ten per cent interest from maturity. To secure the payment of said note said Morrison executed a deed of trust to Barlow as trustee on two hundred and eighty acres of land, situate in said county, which was duly recorded in the recorder’s office.. On January 1, 1885, Bauer, being the owner of said note and deed of trust, for a valuable consideration, assigned and delivered said note and deed to Arthur Hower, the plaintiff in this cause. Subsequently thereto Morrison conveyed the land to one John F. Richards, who in turn conveyed it to Ellen J. Erwin, the defendant herein, both of which deeds were made subject to the aforesaid note and deed of trust, and both were properly recorded. Said lands were wild and uncultivated and were not and had not been in the actual possession of any one since the date of the note and deed of trust. At the time of filing the suit, said note and the interest thereon were due and wholly unpaid.

On August 5, 1889, Barlow, the trustee in said deed of trust, executed a deed releasing said deed of trust, reciting therein that said note, both principal and interest, had been paid in full, which was filed for record August 8, 1899. Plaintiff objected to the introduction of this deed of release in evidence for the reason that there was nothing contained in the deed of trust which authorized him to mate the release, which objection was, by the court, overruled, and plaintiff duly excepted. Plaintiff testified that he never authorized1 Barlow, the trustee, or anyone else to execute said deed of release.

At the request of defendant, and over the objection and exceptions of plaintiff, the court gave the following instructions:

“1. The court declares the law to be that the note, which is the foundation of this action, is barred by the Statute of Limitation, and that no valid judgment against the maker thereof, or any person who assumed the payment thereof can be had. And that no lien-created on the land in dispute by any instrument of' writing to secure the payment of said note can be enforced.
“2. The court declares the law to be that under the evidence plaintiff’s cause of action is barred by the Statute of Limitation, and that plaintiff has no right to prosecute the action, and that judgment must be for the defendant.”

I. The first question presented for determination is, did Barlow, the trustee in the deed1 of trust, executed by Morrison, conveying the land mentioned in the evidence to him to secure the payment of the note for $4,000, dated. June 2, 1884, payable to Bauer, and by him endorsed before maturity to plaintiff, have authority to execute the deed of release, dated August 5,1889, and recorded August 8,1899 ?

The only evidence introduced upon that question,, as disclosed by this record, was the testimony of appellant, and he testified positively and unequivocally that he did not authorize Barlow or any one else to-release the deed of trust. So that must settle the matter against the contention of respondent, without the statute which was in force at that time authorized the trustee named in a deed of trust to release the same,., without authority from the owner and holder of the note secured thereby.

The record discloses the fact that said deed of release was executed by Barlow on August 5, 1889, long • after Bauer had negotiated the note, and, therefore,. section 7094, Revised Statutes 1889, which governs such, matters was then in force. That section reads as follows: “If any mortgagee, cestui que trust or assignee, or the executor or administrator of the mortgagee, cestui que trust or assignee, receive full satisfaction of any mortgage or deed of trust, he shall, at the request and cost of the person making the same, acknowledge satisfaction of the mortgage or deed of trust on the margin of the record thereof, or deliver to such person a sufficient-deed of release of the mortgage or deed of trust; hut it shall not in any case he necessary for the trustee to join in such acknowledgment or satisfaction, or in such deed of release; and provided, further, that when any mortgage or deed of trust shall he satisfied by a deed of release, the recorder shall note on the margin of the record of such deed of trust the book and page where such deed of release is recorded. In case satisfaction be acknowledged by an assignee, the note or notes secured shall be produced and canceled' in the presence of the recorder, who shall enter that fact on the margin of the record and attest the same with his official signature. ... If such note or notes have been lost or destroyed, the assignee shall, before acknowledging satisfaction, make affidavit that he is the lawful owner thereof, that the same has been paid, but cannot be produced for the reason that it has been lost or destroyed, as the case may be, which affidavit shall be entered on the face or margin of the record, or be appended thereto.”

Since the enactment of that statute, both this court and the Courts of Appeal have repeatedly held that neither the trustee named in a deed of trust executed to secure a promissory note, nor the assignor of such note could enter satisfaction of the mortgage debt. [Boatmen’s Saving Bank v. Grewe, 84 Mo. 477; Feld v. Roanoke Inv. Co., 123 Mo. 603; Borgess Inv. Co. v. Vette, 142 Mo. l. c. 574.]

We, must, therefore, hold that the deed of release offered and read in evidence was void, and should for that reason have been excluded as evidence in the case.

II. This brings us to the consideration of the only other question presented by this record for determination, and that is, was the deed of trust given to secure the $4,000 note sued on barred by the Statute of Limitations at the time of the institution of this suit?

The note and deed of trust were dated June 2nd, 1884, and the money was payable according to its terms five years from and after that date, which would make the note mature June 2, 1889, and under the Statute of Limitations as it then stood the note would not have been barred until June 2, 1899, and the deed of trust until June 2,1909. This suit was begun June 16,1904. But after the execution of this note and deed of trust the Legislature in 1891 passed an act, now sections 4276 and 4277, Revised Statutes 1899, which reads as follows: “Sec. 4276. No suit, action or proceeding under power of sale to foreclose any mortgage or deed of trust, executed hereafter to secure any obligation to pay money or property, shall be had or maintained after such obligation has been barred by the Statutes of Limitations of this State.

“Sec. 4277. Nor shall any such suit be had or maintained to foreclose any such mortgage or deed of trust heretofore executed to secure any such obligation after the expiration of two years after the passage of this act.”

At the time of the trial of this case in the circuit court, this court had not construed those statutes, but since then this court and the Courts of Appeals have construed them contrary to the construction placed upon them by the trial court, as indicated by the two instructions given by it at the trial. The last expression of this court regarding this question was stated by Lamm, J., in the case of Stockton v. Teasdale, 212 Mo. l. c. 614, which is as follows:

“Recurring to section 4276, supra, it in terms refers to mortgages ‘executed hereafter.’ The mortgage in question was not ‘executed hereafter,’ hence is not within that section. Recurring to section 4277, supra, it has been held that mortgages securing notes not barred at the time, of the passage of the act are not within its intent and purview. That it covers only mortgages securing notes barred at the time the act took effect, and granted two years of grace in which to foreclose such mortgage. The note secured here was not barred at the time the act took effect, hence the mortgage securing it is without its provisions. The evil remedied by the act was to do away with the singular incongruity theretofore existing whereby a note was barred in ten years but the mortgage securing the same note ran for twenty years. Bumgardner v. Wealand, 197 Mo. 433; Stockton v. Teasdale, 115 Mo. App. 245; and McCauley v. Brady, 123 Mo. App. 558, interpret the statute as herein indicated. Nothing could be added to the cause of jurisprudence by restating the reasoning employed and the propositions asserted in those cases. They control the disposition of this one and the inquiring mind may find there the rule and reason exhaustively exploited and formulated.”

The expressions of Judge Lamm in that case are equally applicable to the facts of this case. The note secured here was not barred at the time the act took effect, hence the deed of trust securing it is without its provisions. The evil remedied by the act was to d.o awaywiththe singular incongruity theretofore existing. whereby a note was barred in ten years, but the deed of trust securing the note ran for twenty years.

We are, therefore, of the opinion that the learned trial court erred in giving said instructions numbered nne and two.

The judgment is reversed and the cause remanded •with directions to enter judgment for the plaintiff for the amount of the note and interest due thereon, and that the same he declared to he a special lien upon the land described in the deed of trust, and that special execution issue thereon, as prayed for.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    F. W. HILL, Appellant, v. AB HOPSON, Road Overseer, and CHRIS. T. TULLOCK et al., Judges of County Court.
    Division One,
    May 31, 1909.
    1. APPELLATE JURISDICTION: Trespass. In cases of pure trespass upon land, title to real estate is not so involved as to confer jurisdiction upon the Supreme Court over an appeal from a judgment of a circuit court refusing to enjoin the trespass, although the title may be incidentally involved and must be shown in the course of the trial.
    3. -: --: To Enjoin the Opening of a Road. Where plaintiff in his bill for an injunction alleges that he is the owner of a certain nine-acre lot and seeks to enjoin the road overseer and the judges of the county court from opening up a public road or street twenty feet wide into the lot, on the ground that there had been no petition for the road, no plat filed, etc., and defendants answer that plaintiff was formerly the owner of the lot and dedicated the strip to public use by filing a plat of said lot, showing its division into blocks, lots, streets and alleys, and by selling lots in reference to said plat, and alleging the title to be in the county as trustee, title is incidentally involved, but the real purpose of the ' suit is to restrain a threatened trespass, and hence the Supreme Court does not have jurisdiction over the appeal from the judgment dissolving the injunction.
    3. -: -: County as Party. Where the suit is against the road overseer and the judges of the county court, to enjoin them from committing a threatened trespass upon private property by opening up a road thereon without complying with the statutes, the county is not a party, nor are the road overseer and county judges State officers, and the Supreme Court does not have jurisdiction over the appeal.

      Appeal from St. Francois Circuit Court. — Hon. Chas. A. Killian, Judge.
    Transferred to St. Louis Court of Appeals.

      Edward A. Rozier for appellant.
   GRAVES, J.

The abstract of record reveals the fact that no bill of exceptions was filed in this case, but shows an appeal in due form from a judgment dissolving a temporary injunction. The cause is briefed by the plaintiff, the appellant here, but no brief by defendants, respondents here. The case, if properly here at all, is therefore here upon the pleadings and judgment, and not otherwise. The petition, which was verified by affidavit, thus reads:

“Plaintiff for a cause of action states that he is the owner in fee simple of a tract of land containing about nine acres in U. S. Survey No. 30991 and situate in .what is known as East Bonne Terre in Perry township, St. Francois county, Missouri, being the property described in the deed from Anthony La Crave dated — day of--and recorded in Book — the southwestern portion of said lot being bounded on the south by the public road known as the Big Biver & French Village Public Boad; on the west by the public road known as the Valle Mines & Hazel Bun Public Boad; on the east by the lot of one John Valle.
“Plaintiff further states that Ab Hopson is the duly elected, qualified and acting road overseer of Boad District No. 14 of St. Francois county, Missouri, and that Chris. T. Tullock is the duly elected, qualified and acting presiding judge of the county court of St. Francois county, Missouri, and that Allen Hill and O. J. Mayberry are the duly elected, qualified and acting associate justices of said county court.
“Plaintiff further states that he resides in the southwestern portion of said nine-acre lot and occupies the same with a residence and out buildings and has a garden thereon, together with an orchard of growing fruit, and that the same is inclosed by a good and substantial fence and that on the south side of said lot said fence reaches up to the west side of the lot of the said John Valle, and that the said lot, together with the garden thereon and fruit trees, are now fully protected by said fence from depredation and injury.
“Plaintiff further states that defendant Charles T. Tullock, Allen Hill and O. J. Mayberry, acting as the county court of St. Francois county, Missouri, at the August term, 1905, of said court made an order of record directed to codefendant Ab Hopson as road overseer, directing, ordering and requiring the said Hopson to open upon.the lot of ground so owned by plaintiff, a street or alley immediately adjoining the lot of said John Valle, which said street or alley was so directed to be opened with a width of twenty feet and a length of about two hundred and forty-three feet.
“Plaintiff further states that the said street or alley so ordered to be opened is of no public utility and the opening thereof can only be intended for the private benefit of said John Valle and cannot be used by the general public because said alley does not connect with any other street or road and is not of sufficient width to permit the turning of teams therein. Plaintiff further states that said proposed street or alley is not thirty feet wide.
“Plaintiff further states that said proposed street or alley is not a public road or highway nor has there ever been presented to the county court of St. Francois county any petition asking the location and opening of a street, alley, highway or public road at said point, nor has the county court of St. Francois county ever caused a plat to be filed thereof, nor has the said proposed street or alley ever been used by the public as a street or alley, nor has there ever been expended any public money or labor thereon at any time, nor has said street or alley ever been established as a public road according to any provisions of law, nor did said county court have any lawful authority to order the opening of a road or highway less than thirty feet wide.
“Plaintiff further states that said 'Ab Hopson, acting under the purported authority of said order of said county court of St. Francois county, Missouri, has threatened and is about to enter upon said premises, and has so notified this plaintiff in writing of his intention to at once enter upon said premises and tear and throw down the fences of plaintiff and open said-street or alley twenty feet wide and one hundred and forty-three feet long and to maintain such opening, and thereby expose all the property of plaintiff to the depredation of stock and to the injury of plaintiff to his said orchard and garden.
“Plaintiff states that he has no adequate remedy at law and if defendant Hopson is permitted to tear down said fence and expose plaintiff’s property to depredation that his loss will be irreparable and cannot be adequately compensated by an action at law.
“Plaintiff therefore asks that this court issue a temporary restraining order to prevent defendants from carrying their threatened act into effect and that a temporary injunction be issued by this court and that on a hearing herein defendants be permanently enjoined from enforcing the said order and that defendant Ab Hopson be permanently enjoined and restrained from tearing down the fences of this plaintiff and that defendants all be restrained from opening the said street or alley.”

The 'amended answer upon which the cause was finally tried is in this language:

“Now come defendants in the above entitled cause and for answer to plaintiff’s petition admit that Ab Hopson is the duly elected and qualified road overseer of Road District No. 14 of St. Francois .county, Missouri; admits that C. T. Tullock is the duly elected and qualified presiding judge of the county court of St. Francois county; admits that O. J. May-berry and Allen Hill are the duly elected and qualified associate judges of the county court of St. Francois county, Missouri; admit that the county court comprised of the aforesaid members at the August term, 1905, made an order of record ordering and directing Ab Hopson, the aforesaid road overseer, to remove all obstructions placed in the street or alley mentioned and complained of in plaintiff’s petition, a copy of which order is hereto attached and made a part of this answer.
“Defendants further answering deny each and every allegation, statement or averment in plaintiff’s petition contained not hereinbefore expressly admitted.
“Defendants further answering allege the facts to be that on the 28th day of February, 1885, and prior thereto, the plaintiff, together with other persons, were the owners in fee simple of the nine-acre tract of land mentioned in plaintiff’s petition, and on the 26th day of February, 1885, the plaintiff, together with the other owners of the said nine-acre tract, subdivided and laid out the same into town lots, blocks, streets, and alleys to be made, in which said, plat the parcels of ground reserved for public purposes by their boundaries, course and extent, the avenues, streets, lanes, alleys and other land to be used for public purposes, and the lots for sale by numbers, and their precise length and width were particularly set forth and described; that said plat so aforesaid was duly signed and acknowledged by the proprietors of said tract and duly certified and recorded in the office of the Recorder of Deeds of St. Francois county, the county in which the said tract of land is located; that the street or alley mentioned and complained of in the plaintiff’s petition is one of the streets or alleys so aforesaid laid off and described in and by the said plat, and is designated on said plat as ‘West Street;’ that afterwards plaintiff and his co-owners as aforesaid, offered and held out for sale the lots and parcels of land as aforesaid laid off and said lots with reference to and as described by said plat; that said lots were sold to parties relying upon the said plat and more particularly the street or alley complained of in plaintiff’s petition; that by reason of the premises the plaintiff is forever estopped from asserting any claim, title or interest in and to the said land designated as ‘West Street’ by said plat.
“Defendants further answering say that the street or alley complained of in plaintiff’s petition is a public street for public uses and purposes, and that the title thereto is vested in St. Francois county in trust for the uses and purposes as aforesaid, and that these defendants should not be enjoined from executing said trust.
“Defendants further say that the town laid off by the plaintiff and his co-owners of said land is not incorporated.
“Wherefore, the defendants, having fully answered, pray to be discharged with their costs.”

Reply was a general denial.

Upon the filing of the reply the defendants moved to dissolve the temporary injunction stating their reason thus:

“Now at this day come the defendants in the above entitled cause and move the court to dissolve the injunction heretofore granted in said cause for the following reasons, to-wit:
“First. There is no equity on the face of the bill filed by complainant herein.
“Second. All the allegations of said bill which are material and upon which the injunction was granted are denied by defendants in their answer.
“Third. The plaintiff having as provided by statute in such eases duly dedicated the property in controversy to the public now has no special interest in said property.
“Fourth. The new matter set up in defendants’ answer, as the same appears from and by said answer now on file in this cause, shows that plaintiff is not entitled to this relief and that this injunction should no longer be continued.
“Wherefore and by reason of the above the defendants say that the said injunction should no longer be continued, but the same should at once be dissolved. ’ ’

The judgment entered was:

“This cause having been tried and submitted to the court, it is ordered that the prayer for relief be denied and the court finds for the defendants, and it is further ordered that the injunction granted herein be dissolved and for naught held.”

The questions suggested by the record are (1) whether we have jurisdiction and (2) whether the judgment is erroneous upon the face of the record proper.

I. Was title to real estate so involved in this case as to give this court jurisdiction? We have set out the pleadings in full so that the real questions involved might be made apparent. By the petition, the plaintiff alleges that he is the owner of the nine acres of land in question; that he had the same fenced and inclosed; that the county court made an order directing the road overseer to open up a street or alley on said land twenty feet wide and two hum dred and forty-three feet long; that the said defendant road overseer “has threatened and is ahont to enter npon said premises and has so notified this plaintiff in •writing of his intention to at once enter npon said premises and tear and throw down the fences of plaintiff and open said street or alley . . . and to maintain said opening,” etc. The petition then asks that defendants he enjoined from carrying this said threatened act into effect.

By one portion of their answer the defendants aver that the plaintiff and others were at one time owners of the tract of nine acres; that as such owners they platted the same into lots and blocks with streets and alleys therein; that the twenty-foot strip in question was one of these streets or alley's; that their said plat was duly acknowledged and filed of record in the recorder’s office of St. Francois county; that the plain tiff is now estopped to claim title thereto. And further the defendants aver that said strip 20 by 243 feet is a public street for public use, and that the title thereto is vested in St. Francois county in trust for the public uses aforesaid. We thus have an allegation of title in plaintiff on the one hand and an allegation of title in St. Francois county on the other hand. However, when we analyze the petition the real purpose of it is to restrain a threatened trespass. In all cases of trespass upon lands the title to real estate must he inquired into, and it usually results that both plaintiff and defendant claim title, and each attempts to prove title in himself. It now seems to he the settled doctrine of this State that in eases of pure trespass upon lands the title to real estate is not so involved as to confer jurisdiction upon this court under section 12 of article 6 of the Constitution, although the title may he incidentally involved and must he shown in the course of the trial. [Rothrock v. Cordz-Fisher Lumber Co., 146 Mo. 57; Cox v. Barker, 150 Mo. 424; Ozark Land & Lumber Co. v. Robertson, 158 Mo. 322.]

The Rothrock case, supra, overruled in express terms tbe case of Musick v. Railroad, 114 Mo. 309, wherein it was held that we did have jurisdiction in a trespass case, when tbe defendant claimed title by tbe Statute of Limitations, and urged such title as a defense to tbe alleged trespass. So that tbe allegation of title in St. Francois county in this answer does not give us jurisdiction. Injunction being an equitable action, if tbe answer in an action to restrain a trespass pleads an equitable title, and prays that tbe court ascertain and define tbe title, then tbe judgment to be entered would directly affect title to real estate and this court would have jurisdiction, but such is not tbe case at bar. [Lambert v. Railroad, 212 Mo. 692.] We have here a pure action to restrain a trespass and no pleading authorizing tbe court to find -or define title. Tbe judgment does not directly affect title under our cases.

If we have no jurisdiction in a case of trespass, by parity of reasoning we cannot have jurisdiction in a case of threatened trespass. If tbe trespass itself and tbe issues involved therein do not give us jurisdiction, a mere threatened trespass cannot do more.

We conclude therefore that title to real estate is not- so involved as to give this court jurisdiction.

II. Nor do we think tbe parties to tbe action give us jurisdiction. St. Francois county is not a party. Tbe road1 overseer and tbe members of tbe county court are not State officers within tbe meaning of tbe Constitution, so as to confer jurisdiction. [State ex rel. v. Dillon, 90 Mo. l. c. 234.]

Nor does it appear that tbe amount involved or-any other question in tbe case gives us jurisdiction. We therefore conclude that this cause should be transferred to the St. Louis Court of Appeals for final determination and it is so ordered.

All concur.


author: LAMM, P. J.

text:
    THE STATE ex rel. HADLEY, Attorney-General, v. W. J. ADKINS et al., Judges of County Court, Appellants.
    Division One,
    May 31, 1909.
    1. APPELLATE JURISDICTION: Revenue Law: Preservation of Fund. Under the provisions of the Constitution giving the Supreme Court jurisdiction of the appeal in a case involving “a construction of the revenue laws of this State,” the term “revenue laws” covers and includes laws relating to the disbursement of the revenue and its preservation, as well as provisions relating to the assessment, levy and collection of it.
    2. -: -: Where Found. In determining the appellate jurisdiction of the court it is of no importance whether the “revenue law” upon which jurisdiction depends is found in the chapter on “Revenue” or the one on “Counties” or the one on “Roads and Highways.” It makes no difference where it is found if it is a “revenue law” within the meaning of the Constitution.
    3, -: -: County Depositaries. The Supreme Court has jurisdiction over an appeal in a case involving a construction of the laws prescribing the duties of the county court in selecting a depositary of the county funds.
    4. APPEAL: No Exceptions: County Depositary: No Advertisement for Bids. Interlocutory motions or motions for a new trial can be preserved for review only in a bill of exceptions; and if no such bill is preserved in the abstract, and the record proper is free from error, the Supreme Court will not reverse the judgment of the trial court quashing the record of the county court for that, in selecting a county depositary, the court had not advertised for bids, as the law (Sec. 6817, R. S. 1899) requires.

      Transferred from St. Louis Court of Appeals.
    Affirmed.

      Joseph S. Long and James H. Pratt for appellants.

      Herbert S. Hadley, Attorney-General, J. A. Sturges and O. R. Puckett for respondents.
   LAMM, P. J.

The Attorney-General sued out a writ of certiorari against defendants, the justices of the county court of McDonald county. The theory of the petition was that defendants, as such justices, had violated article 6, chapter 97, Revised Statutes 1899, relating to county depositaries. Section 6817 of that article ordains that the county courts, as a condition precedent to receiving proposals and accepting bids from hanks or bankers to become county depositaries, shall publish a notice in some newspaper of the county for twenty days before the commencement of the May term of the court at which the letting occurs that such bids would be received. It is alleged that notice was not published for the time required by that statute but that, in the face of that fact, defendants accepted the bid of a certain bank, approved its bond, and, in violation of the statutes, made it the county depositary for the ensuing two years.

The writ issued to fetch up the record in that matter by a day certain. On return coming in, such steps were taken that the cause came to judgment, with the result that the proceedings in the county court in that behalf were held irregular and void, and were quashed..

From that judgment, defendants appealed to the St. Louis Court of Appeals. That court held it had no jurisdiction and transferred the case here (119 Mo. App. 396). This on the theory that the case was one “involving the construction of the revenue laws of this State” (Sec. 12, art. 6, Constitution; Sec. 5 of the amendment to the Constitution adopted in 1884, R. S. 1899, p. 93).

I. Of jurisdiction. At the threshold is the question of jurisdiction. The county of McDonald is not a party. The title to real estate is not involved'. No Federal or constitutional question is lodged in the case. There is no amount in dispute disclosed in the record, and if the Supreme Court has jurisdiction of the appeal it is because the case involves “the construction of the revenue laws of this State,” as suggested by the Court of Appeals.

(a) Speaking broadly, the revenue laws of the State are found bundled together as articles 1 to 12, inclusive, of chapter 149, Revised Statutes 1899, under the caption, “Revenue,” and in acts of the Legislature amendatory thereof and supplemental thereto, passed since the revision of 1899. But the subject of revenue is dealt with .in the Constitution and is involved in other statutes. Hence the fact that the subject-matter of county depositaries is found classified under the title of “Counties,” in chapter 97, would not alone control, if it were found that in article 6 of that chapter under the subtitle, “County Depositary,” a provision relating to revenue had place. The subtitle of “County Treasurers and County Warrants” (article 4) is also found classified under the main title of “Counties” in chapter 97, and some provisions of that article clearly relate to revenue— for example, section 6810 makes county warrants receivable for taxes, and other provisions relate to registration of county warrants and the order of priority of their payment, which, as presently seen, has been ruled to concern revenue.

In this connection it may be said that the constitutional phrase under review does not relate alone to the assessment of property, the levy or collection of taxes, licenses, etc., but “revenue laws of this State” may well include statutes concerning the disbursement of the revenue as well as the gathering of it into the county or State chest.

(b) There being no adjudication of this court directly in point and none laying down general rules or providing a standard whereby a statute may be determined to be a revenue law, or not, we must look to the good sense of the thing and to our decisions on kindred matters, which, by parity of reasoning, may give out an interpreting side-light.

The working theory whereby courts get at the meaning of a constitutional provision, clothed in general language as is the one up for consideration, is to gradually and guardedly approach its full construction by a process of evolution by inclusion and exclusion, as cases arise. With that end in view, the drift and trend of the judicial mind is discoverable by an analysis of the decided cases. Let us attend to them.

Hilton v. Smith, 134 Mo. 499, was a controversy between two interpleading parties, each claiming a fund. The claim of one of the parties arose under abandoned tax laws. The construction of these laws was held in judgment. So, too, another question was in the case, vis., the interpretation of the phrase “the owner of the property” found in the provisions of the revenue chapter relating to suits for the recovery of back taxes. Though the Hilton case involved an amount in dispute less than conferred jurisdiction on this court, yet jurisdiction was retained on the ground that the construction of the revenue laws was involved.

Moore v. Vaughan, 127 Mo. 538, was a suit for the' collection of a four-dollar poll-tax — the plaintiff being a road overseer. The cause was sent here by the St. Louis Court of Appeals (53 Mo. App. 632). The point to be ruled was the construction of section 7815, Revised Statutes 1889, in the chapter entitled “Roads and Highways.” That section concerns the listing of able-bodied male persons between twenty-one and fifty years of age for poll-tax purposes. We retained jurisdiction on the theory the construction of the revenue laws was involved as held by the Court of Appeals.

However, in State ex rel. v. Holland, 186 Mo. 222, another poll-tax case, we declined jurisdiction. 'This on the theory that the only question involved was one of practice, viz., the sufficiency of the statement filed before the justice of the peace. In that case it seems there was testimony, nisi, tending to establish facts within the purview of the poll-tax law as set forth in the general statutes relating to roads and highways.

However, presently in Sone to use v. Wallendorf, 187 Mo. 1, a similar state of things was held in judgment by this court In Banc. There it "was unanimously ruled that a construction of the revenue laws was involved although the case finally rode off on a construction of the general provisions of the statute relating to practice before justices of the peace.

In State ex rel. Shannon County v. Hawkins, 169 Mo. 615, jurisdiction was retained on two grounds. First, because the' county was a party and, second, because the revenue laws were involved, although the provision of those laws in judgment related only to the commissions of the collector on back taxes gathered by him.

City of Stanberry v. Jordan, 145 Mo. 371, was a case relating to the collecting of city taxes. We held jurisdiction on two grounds. First, because a constitutional question was raised; but, second, because the construction of an act concerning the assessment and collection of the revenue gave us jurisdiction.

However, in City of Hannibal ex rel. v. Bowman, 167 Mo. 535, it was held that the construction of a statute for the collection of taxes levied on personal property by cities organized or existing under a special charter does not involve the construction of’ the revenue laws of this State.

And in St. Joseph v. Life Insurance Co., 183 Mo. 1, where there was a successful prosecution under am ordinance of St. Joseph for doing a business without: a license, the defendant was fined $50 in the police court. The cause eventually came here on the theory there was a constitutional point involved. It was held there was no such point in the ease and, further, the question whether, a license or occupation tax was in reality a tax or could be imposed by the city in cases where the insurance company had paid the full ad valorem tax imposed by section 8043, Revised Statutes 1899 (relating to the taxes of insurance companies), did not involve a construction of the revenue laws of this State.

And in State v. McNeary, 88 Mo. 143, it was held that this court had no jurisdiction in a misdemeanor-case on a charge for violating the dramshop law for keeping a dramshop without a license, on the ground that it involved the construction of the revenue laws.

Morrow v. Surber, 97 Mo. 155, was this: Surber by false representations succeeded in having a warrant for less than $500 cashed by the clerk of the county treasurer of Macon county. Thereupon, Morrow, the county treasurer, sued to recover back that amount. The case turned on the statutes relating to • their order of priority as registered. Statutes relating to that subject' (as said heretofore) are found in the registration of warrants and their payment in. the present chapter, entitled “.Counties,” under the subtitle “County Treasurers and County Warrants,” article 4. This court retained jurisdiction on the theory that the construction of the revenue laws of the State was involved.

In State ex rel. v. Allison, 155 Mo. 325, the question in judgment was: When the fiscal year of the county commenced? If it commenced on one day the treasurer of Ray county should have paid certain warrants. If it commenced on another, he should not have paid them. The action was mandamus. It came here on appeal. We retained jurisdiction.

In State ex rel. v. Gawronski, 179 Mo. 549, the question was whether a motion would lie to quash an execution issued on a tax judgment which motion was grounded on the specification that a minor defendant, ten years of age, had been sued as owner of the land and the case prosecuted to judgment without the appointment of a guardian ad litem. It was held that this court did not have jurisdiction on the theory that a construction of the revenue laws of the State was involved.

From a review of the cases we conclude: (1) That when our jurisdiction is put upon the ground that the construction of the revenue laws of the State is involved, the law up for construction must be a State law as contradistinguished from the provisions of a special city charter; (2) that it makes no difference where the law is to be found, whether under the title of “revenue” or any other title, so long as it relates to the subject-matter of revenue; (3) that the revenue must be directly and primarily concerned, not merely indirectly or as an incident; (4) that the term “revenue law” covers and includes laws relating to the disbursement of the revenue and its preservation as well as provisions relating to the assessment, levy and collection of it; and (5) finally, that where the question in the case is merely one relating to the general practice in circuit courts or before justices of tbe peace, although the case may pertain to the collection of taxes, yet the revenue laws are not involved in a constitutional sense.

(c) Looking to the County Depositary Act itself, we find that the main idea is the preservation and disbursement of the funds of the county arising from taxes or otherwise; e. g., it has provisions relating to the payment of warrants. Another idea is that the county itself obtains a share in the increment of gain arising from the use of its funds by banks of deposit (Henry County v. Salmon, 201 Mo. l. c. 161, et seq.). In one provision the gain of the county is disposed of for road and bridge purposes (section 6819). Another provision relieves the county treasurer from liability for the funds of the county in certain contingencies.

With some doubt and hesitation, we conclude the statute under construction relates to revenue and we are some1what strengthened in that conclusion by a ruling made In Banc, on a motion in a cause now pending in this court, Reagan v. Buford, — Mo. —. The respondents (defendants) in that case are the justices of the county court of Iron county. The case involves the construction of the County Depositary Act and relates, as does this, to the acceptance of a bid to become county depositary. The case came here from the St. Louis Court of Appeals on the theory that a construction of the revenue laws of the State was involved. A motion was made to advance. In the motion, or in the suggestions in opposition, it was contended, arguendo, that this court had jurisdiction. If we had no jurisdiction of the case, we had no jurisdiction of the motion, and should have refused to pass upon it. We did pass upon it by overruling it, and, by that ruling, inferentially held we had jurisdiction.

II. Of the merits. There is no error in the record proper. The petition, return and judgment are well enough. If there is error it arose either on interlocutory motions or on the motion for a new trial and exceptions saved. These exceptions and motions could be preserved for review only in a bill of exceptions. In the abstract of the record, at one place, we read: “Now come the parties hereto, as well as their respective attorneys, whereupon the court allowed said appeal, it is therefore ordered by the court . . . . and the respondents [appellants] be given ninety days in which to file their bill of exceptions herein.” At another place, we find the following: “ And now come the appellants, and within the time heretofore allowed by order of record, and present this, their bill of exceptions, and pray that the same may be signed, sealed and made a part of the record herein. Which is accordingly done this, the 6th day of October, 1905. (Signed) F. C. Johnston, Judge of the McDonald Circuit Court.”

Barring those two narrations, the abstract is barren of any references to a bill of exceptions. There is not a word or an ear-mark from a to issard by which we can determine what is in the bill or out of it, whether anything or nothing. A court of justice does not proceed by guessing, and therefore an abstract of the record Should show in some orderly and reasonable way that the exceptions and motions were preserved in a bill of exceptions, otherwise we cannot consider them. Such has long been the rule in this court. [Reno v. Fitz Jarrell, 163 Mo. 411; State v. Baty, 166 Mo. 561; Gilchrist v. Bryant, 213 Mo. 442; Thompson v. Ruddick, ibid, 561; Stark v. Zehnder, 204 Mo. l. c. 448; Coleman v. Roberts, 214 Mo. 634; Barham v. Shelton, ante, p. 66; Clay v. Union Wholesale Pub. Co., 200 Mo. l. c. 673; Groves v. Terry, 219 Mo. 595.]

"We cannot consider the exceptions or motions because they are not vouched for as preserved in the bill of exceptions.

Let the judgment be affirmed. It is so ordered.

All concur.


text:
    UNION TRUST COMPANY, Executor, and MARY E. J. MERMOD v. RUDOLPH PAGENSTECHER, Collector, Appellant.
    Division One,
    May 31, 1909.
    1. PUBLIC SEWER TAX: General Tax: Statute. The tax contemplated by Sec. 5969, R. S. 1899, authorizing a city of the fourth class to “levy a tax on all property made taxable for State purposes over the whole city, to pay for the construction” of a public sewer, is a general tax, and not a special benefit assessment. Special assessments have for their basis special benefits, and can be levied on real property alone, and not on personal property. A tax “on all property made taxable for State purposes over the whole city” means a tax on both personalty and realty, and is, therefore, not a special tax. In addition to this, this section divides sewers into three classes, “public, district and private sewers,” and provides for a tax for public sewers alone, and defines them to be such as “shall be established along the principal courses of drainage,” showing that the purpose was to pay for, out of the city’s public funds, only such sewers as are of utility to the municipality, and not for such as are of special utility to a particular portion thereof; whereas, the next two sections provide that district sewers are to be paid for by special assessments against the property within the district, and private sewers by individuals. So that it is apparent from the face of the three sections that the tax referred to in section 5969, though denominated therein as a “special public sewer tax,” is a general municipal tax.
    2. -: -: In Excess of Constitutional Limit: No Vote. The tax contemplated by Sec. 5969, R. S. 1899, for the construction of a public sewer, being a general municipal tax, no such tax in excess of fifty cents on the hundred dollars valuation can be levied in a city having between one thousand and ten thousand inhabitants, unless such excess is authorized by a vote of the people; and while said statute says nothing about a vote of the people, the provision of the Constitution (Sec. 2, art. 10) requiring the approval of two-thirds of the qualified voters before a general tax in excess of fifty cents can be levied, must be read into said statute as a' part thereof.
    3. -: -: -: Annual Tax: And Tax Levied Only Once. The restrictions of sections 11 and 12 of the Constitution apply to a tax that is to be levied but once as well as to those to be levied annually, and are not any the less applicable because the general municipal tax in excess of the maximum constitutional limit is to be levied only once and that for the construction of a public sewer. Said section 11 says that “said restrictions as to rates shall apply to taxes of every hind and description, whether general or special, except taxes to pay valid indebtedness,” etc.
    4. -: -: -: Police Power. It cannot be held that a general tax in excess of the maximum constitutional limit to be levied for the construction of a public sewer may be held to be within the terms of the Constitution on the ground that the construction of such a sewer is within the police powers of the State.
    'Appeal from St. Louis County Circuit Court. — Eon. Jno. W. McElhinney, Judge..
    Affirmed.

      E. R. Chappell and Albert B. Chandler for appellant.
    (1) Appellant’s demurrer to respondent’s petition, based on the ground that tbe petition does not state facts sufficient to constitute a cause of action, should have been sustained. (2) Tbe facts set out in tbe petition show that tbe board conformed to tbe statute under wbicb it proceeded. Sec. 5969, R. S. 1899.' (3) Tbe petition does not state facts showing that tbe Legislature failed to conform to tbe Constitu-' tion in enacting tbe statute under wbicb tbe board proceeded. Sec. 5969, R. S. 1899; Farrar v. City, 80 Mo. 379; Lamar y. City, 128 Mo. 188; K. C. v. Bacon, 147 Mo. 259; Adams v. Lindell, 72 Mo. 198. (4) The petition does not state facts sufficient to raise the question of the constitutionality of section 5969, supra.

      Tyrrell Williams and Paul V. Janis for respondents.
    (1) The re-levy of a tax in order to he valid must be at the same rate as the original levy. Sec. 5950, R. S. 1899; State ex rel. v. Ashbrook, 154 Mo. 375. (2) When an ordinance is unreasonable and oppressive it may be vacated on that ground alone. Corrigan v. Gage, 68 Mo. 541; Railroad v. Springfield, 85 Mo. 674; Hannibal v. Tel. Co., 31 Mo. App. 23; Willow Springs v. Withaupt, 61 Mo. App. 275. (3) 1. A tax by a city of the fourth class on all property generally, at the rate of $2.50 on the $100, and not authorized by a vote of the electors, is levied in violation of the constitutional limitation as to rate. Constitution, art. 10, sec. 11; Lamar Water Co. v. Lamar, 128 Mo. 188; State ex rel. v. Railroad, 169 Mo. 563; Brooks v. Schultz, 178 Mo. 222; Evans v. McFarland, 186 Mo. 703; State ex rel. v. Railroad, 123 Mo. 72. 2. The distinction between a property tax and a special assessment is a common law distinction upon which grave constitutional rights depend. There are at least' four common law features of this distinction: (a) A special assessment can only be levied on land, never on personal property. 25 Am. and Eng. Eney. Law (2 Ed ), 1168; Newby v. Platte County, 25 Mo. 258; Spencer v. Merchant, 125 U. S. 345; Macon v. Patty, 57 Miss. 378. (b) A special assessment must be for a public improvement of a local nature; and local means local to a portion of the municipality as distinguished from the rest of the municipality, not local to the municipality as distinguished from the rest of the State. 25 Am. and Eng. Ency. Law (2 Ed.), 1176; Morgan Park v. Wiswall, 155 111. 262; Hale v. Kenosha, 29 Wis. 5991; Adams v. Lindell, 5 Mo. App. 197, 72 Mo. 398. (c) A special assessment must always justify itself as a compensation for benefits conferred on the property. McCormack v. Patchin, 53 Mo. 33; Thornton v. Clinton, 148 Mo. 648; Levee Co. v. Plardin, 27 Mo. 495. (d) By common law there can be a personal judgment against a taxpayer on account of the property tax; with regard to a special assessment for local improvements, there can be no personal judgment against the property-owner, but merely a special judgment against the land to enforce the lien. Neenan v. Smith, 50 Mo. 525; St. Louis v. Allen, 53 Mo. 44; Creighton v. Manson, 27 Cal. 613. 3. The special tax authorized by Sec. 5969, R. S. 1899, like other special taxes authorized by statute, is a tax on all property generally but for a special purpose — in this case the special purpose of building sewers. Such a tax is subject to the restrictions imposed by article X of the Constitution. Sec. 5969, R. S. 1899; sec. 9274, R. S. 1899; State ex rel. v. Railroad, 169' Mo. 563; Brooks v. Schultz, 178 Mo. 222; Judson’s Taxation in Missouri, 175; Cooley’s Taxation (3 Ed.), p. 468. (4) Inasmuch as provisions of the general revenue law of the State made it impossible ever to collect this tax of $2.50 on the $100', from railroad, street railroad, telegraph and telephone companies owning property in Kirkwood, it follows that the tax was levied in violation of the constitutional requirements of uniformity. Constitution, art. 10, sec. 3; Sec. 9363 R. S. 1899 ; State ex reí. v. Railroad, 92 Mo. 137.
   GRAVES, J.

Plaintiff Union Trust Company of St. Louis is the executor of the last will and testament of August S. Mermod, deceased, and plaintiff Mary E. J. Mermod is the widow of said deceased. As indicated, the defendant is the collector of the city of Kirkwood, Missouri, a city of the fourth class, with a population of more than one thousand and less than ten thousand inhabitants. By the petition is made to appear the respective interests of the parties plaintiff in and to a 26-acre tract of land within the corporate metes and bounds of the said city of Kirkwood, owned by the deceased in his lifetime and conveyed by his will. This land is assessed at $19,600, or was so a obsessed for taxation purposes for the year 1905.

The said city of Kirkwood being desirous of building a system of public sewers, its board of aldermen on May 1, IOC'S, passed what is known as “Ordinance No. 318,” levying, a tax of $34,300 over the whole city of Kirkwood upon all property made taxable for State purposes, but said ordinance did not fix any rate, but section 2 thereof on that question provided:

“Section 2. As soon as practicable after the passage of this ordinance, the city clerk shall extend the said taxation upon all property made taxable for State purposes over the whole city of Kirkwood, by making out appropriate and accurate tax books, in which he shall set out in suitable columns opposite the name of each person and the item of taxable property as returned by assessor and board of equalization, the amount of said taxes due thereon, apportioning the said sum of money hereinabove provided for and levied among the several owners of all the said property, according to the respective valuation thereon, as shown by the certified abstract returned to the mayor by the county assessor for the year 1905', as provided by law.”

The total assessment of the property returned for State and county purposes at that time was $1,799,770, so that to raise the sum of $34,300, the rate would be a fraction less than $2 oñ the $100.

After the passage of this ordinance the plaintiffs instituted this suit, attacking the validity of the ordinance. Pending the suit the city amended said ordinance, retaining section one thereof as to the raising of $34,300 for building the sewers, but striking out sections 2 to 6 inclusive, and enacting new sections in lieu thereof. The new section 2 thus reads:

“In order to carry into effect said levy of $34,300 and further to provide for the construction of said public sewers, it is hereby declared to be necessary to levy, and there is hereby levied, a special public sewer tax of $2.50 upon the $100 valuation upon all taxable property in the city of Kirkwood. ’ ’

Upon the passage of this amended ordinance the city clerk prepared tax books extending said tax therein at the rate of $2.50 on the $100 valuation on the property within the corporate limits, including the twenty-six acres in which plaintiffs were interested. Tax bills were issued and delivered to the defendant as city collector, who was threatening to collect the same. Said ordinance was passed under the provisions of section 5969, Revised Statutes 1899, but the said proposition was never submitted to a vote of the qualified voters of the said city.

After the passage of the amended ordinance, and the making out of the taxbills and tax books under the provisions thereof, the plaintiff filed an amended or supplemental petition alleging all the facts and setting out said amended ordinance, alleging that said tax books and taxbills were invalid and constituted no valid lien. The petition also charges that the defendant was threatening suit upon said taxbills and that such purported levy, tax books and taxbills, although invalid and illegal, clouded and obscured plaintiffs’ title, and by prayer asked for the cancellation of said taxbills issued against this property, as also the cancellation of the entry on the .tax books of said tax against the land described, and that defendant be enjoined from further prosecuting or commencing a suit on said taxbill, and for all further relief.

After an unsuccessful motion to strike out the amended petition the defendant demurred thereto, which, being overruled, he refused to plead further, and judgment was entered granting to the plaintiffs the relief sought in their petition. From, this judgment the defendant has appealed to this court. By the petition it is charged that the ordinance, and inferentially the statute, is violative of certain constitutional provisions.

Points upon the demurrer as urged in the brief of appellant will be noticed as far as may. be necessary in the course of the opinion. For the present this sufficiently states the case.

I. That the ordinance in question and the statute under which it was passed (Sec. 5969, R. S. 1899) make the tax in question a general tax as distinguished from a special assessment, to us appears quite clear. The statute reads:

“The board of aldermen shall have power to cause a general sewer system to be established, which shall be composed of three classes, to-wit: public, .district and private sewers. Public sewers shall be established along the principal courses of drainage, at such points, to such extent, of such dimensions and under such regulations as may be provided by ordinance, and these may be extensions or branches of sewers already constructed, or entirely new throughout, as may be deemed expedient. The board of aider-men may levy a tax on all property made taxable for State purposes over the whole city, to pay for the constructing, reconstructing and repairing of such work, which tax shall be called ‘special public sewer tax,’ and shall be such amount as may be required for the sewer provided by ordinance to be built; and the fund arising from said tax shall be appropriated, solely to the constructing, reconstructing and repairing of said sewer.”

It will be observed that the levy of this tax is to be upon all property taxable for State purposes. Both real and personal property must be included. It is true that it is denominated “special public sewer tax,” but it is nevertheless a general tax, because a burden upon all property in the municipality. It has none of the ear-marks of what we call special assessments. Special assessments have for their basis special benefits, and apply to real property alone, and not to personal property. In 25 Am. and Eng. Ency. Law (2 Ed.), 1168, such assessments are thus defined: “A special or local assessment is a burden imposed by law upon real property for a public improvement, the extent of the burden being determined by the special benefits which inure to the assessed property by reason of the improvement.”

The statute under review divides sewers into three classes, i. e., “public, district and private sewers.” The tax allowed is only for public sewers and these are by the act itself defined to be such as “shall be established along the principal courses of drainage,” showing that the purpose was to pay out of public funds only for such sewers as were of utility to the municipality as a municipality, and not for such as were especially beneficial to a particular portion of the municipality. For other than public sewers, the •succeeding sections provide the manner of payment. District sewers must be paid for by special assessments against the property within the district. [R. S. 1899, sec. 5970.] Private sewers must be paid for by the individual. [R. S. 1899, sec. 5971.]

So that when the three sections above mentioned, viz., sections 5969, 5970 and 5971, are read together, it is apparent that the “special public sewer tax” referred to in section 5969, is a general municipal tax, and in no sense a special assessment. "We do not therefore have to depend upon other indicia of a general tax, but find evidence of the character of this tax in the face of the law itself. The ordinance we have before us conforms to the statute, and we hold that it provides for a general municipal tax, although such tax is set apart for a special municipal purpose. This tax thus appears to he general in the sense of being levied upon all property alike within the domain of the taxing authority, but special in the sense only that it is levied for a special purpose or fund. Having fixed the character of the tax provided for by this ordinance we proceed another step and to the vital question in this case to which we devote the next paragraph of this opinion.

II. Plaintiffs contend that this levy of $2.50 on the $100 valuation is in violation of section 11 of article 10 of our State Constitution, and in this we think they are correct. This city has, under the pleadings, an admitted population of more than one thousand and less than ten thousand. By section 11 of article 10 of the Constitution the limit of taxes which may be levied and collected for any one year is fifty cents on the hundred dollars of valuation. The section, so far as applicable, reads: “in cities and towns having less than ten thousand and more than one thousand inhabitants, said rate shall not exceed fifty cents on the hundred dollars valuation; . . . provided, . . . for the purposes of erecting public buildings in . . . cities . . . the rates of taxes herein limited may be increased when the rate of such increase and the purpose for which it is intended shall have been submitted to a vote of the people, and two thirds of the qualified voters of such . . . city . . . voting at such election, shall vote therefor,” and said section 11 concludes thus: “Said restrictions as to rates shall apply to taxes of every hind and description, whether general or special, except taxes to pay valid indebtedness now existing, or bonds which may be issued in renewal of such indebtedness.” Under the admissions in the pleadings, and we say admissions because the demurrer admits the truth of the allegations in the petition, the question of this tax was never submitted to the qualified voters of the city of Kirkwood. It is urged for the defendant that the statute, section 5969, supra, does not require the question to be submitted to the voters, but into this statute must be read the constituional provision aforesaid (Evans v. McFarland, 186 Mo. l. c. 727); and before a legal tax in excess of fifty cents on the hundred dollars can be levied the question must receive the approval of two-thirds of the qualified voters, who vote at an election held for that purpose. That such is the view of this constitutional provision is abundantly shown by the cases. [Book v. Earl, 87 Mo. 246; Lamar Water Co. v. City of Lamar, 128 Mo. l. c. 221; State ex rel. v. Railroad, 169 Mo. 563; Aurora Water Co. v. City of Aurora, 129 Mo. 540; Brooks v. Schultz, 178 Mo. 222; Evans v. McFarland, 186 Mo. l. c. 726; City of Lexington ex rel. v. Lafayette Co. Bank, 165 Mo. l. c. 682; City of Stanberry v. Jordan, 145 Mo. 371.]

Several other cases might be cited, but it is so universally held that the constitutional limit of fifty cents cannot be exceeded without a vote upon the proposition, that further- citation would be but to encumber this opinion.

Counsel for defendant urges that sections 11 and 12 of article 10 of our Constitution undertakes to deal with annual taxes solely, and therefore do not apply. In other words, the contention is that inasmuch as this tax is to be levied but once, and not annually, year after year, the constitutional restrictions have no force. The constitutional provision does not so read. It applies to all taxes, as will be seen by the reading’ of the concluding clause, supra.

It is next urged that the statute and the ordinance can be both held to be within the terms of the Constitution, because the construction of a public sewer is within the police power of the State, and we are cited to the case of Morrison v. Morey, 146 Mo. 543, as lending color to this contention. That, case had under consideration our law relative to levee districts and land assessments therein. The case has no application to the case at bar. It does discuss the police power of the State, but winds up with the proposition that the amounts to be collected were not a tax, but an assessment predicated on benefits to the land. Such is not the ease at bar, for here we have a tax upon both personal and real property, and not an assessment against lands for benefits accruing thereto.

Other questions discussed in the briefs need not be discussed here, for counsel for defendant in his brief has well said: ‘ ‘ The real and only point in the case is ‘whether or not, the tax levied by the city in excess of the fifty cents for the purpose of building public sewers was in violation of section 11, article 10, of the Constitution of Missouri.”

From what has been said it follows that the trial court was right, and its judgment should be and is affirmed.

All concur.


text:
    UNION TRUST COMPANY v. RUDOLPH PAGENSTECHER, Collector, Appellant.
    Division One,
    May 31, 1909.
    PUBLIC SEWER TAX: General Tax: On Personal Property. A tax authorized by statute to be levied “on all property made taxable for State purposes over the whole city, to pay for the construction” of a public sewer, is a general tax; and a levy for such- purpose by a city having between one thousand and ten thousand inhabitants of a general tax of $2.50 on the hundred dollars valuation against personal property within the city, without a vote of the people thereon, is invalid, because in excess of the maximum rate permitted by the Constitution.

      Appeal from St. Louis County Circuit Court. — Hon. Jno. W. McElhinney, Judge.
    Affirmed.
   GRAVES, J.

This case involves the same questions involved in the case of Union Trust Company, Executor, and Mary E. J. Mermod v. Rudolph Pagenstecher, Collector, ante, p. 121.

This action is to cancel a personal taxbill issued under the same ordinance involved in the other case. The petition also asks for an injunction. Augustus S. Mermod was a resident of Kirkwood at the time of his death and his personal estate was there and his will was probated in St. Louis county. The personal tax bill is one upon the personal property of the estate in the hands of his executor, the sole plaintiff in this cause. Upon trial judgment was entered for plaintiff granting the relief prayed. By agreement this cause was to abide the result of the other case mentioned, supra. It follows, therefore, that this judgment should be and is affirmed.

All concur.


author: VALLIANT, J.

text:
    J. W. CAREY et al., Appellants, v. J. F. SCHMELTZ et al.
    Division One,
    May 31, 1909.
    1. APPELLATE JURISDICTION: Construing Statute of Another State: Federal Question. The mere construction of a statute of another State, though it he erroneous, does not deny its validity; and if the most appellant contends for is that the trial court misconstrued the statute of a sister State, upon which he based his cause of action, no Federal question is involved, and the Supreme Court does not, on that account, have jurisdiction of the appeal.

      2. -: -: -: Full Faith and Credit, Etc.: Penal Statute. By the statute of Colorado all mining corporations were required to file a report within sixty days after the first day of January of their operations the preceding year, and failing to file such report all the officers and directors became individually liable for all the debts of the corporation; and defendants, being officers and directors of a mining corporation in Colorado, did not file such a report and the company being indebted to plaintiff in the sum of $521.88 he filed suit in this State against them, basing the suit on the said statute. The trial court held the statute to be a penal one, and sustained a demurrer to the petition, and plaintiff appeals, contending the court did not give full faith and credit to the Colorado statute, as required by the U. S. Constitution (Sec. 1, art. 4), which says that “full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State,” etc. Held, that the jurisdiction of. the court is not dependent upon a correct construction of the statute, and no Federal question is involved, and the appeal is not to the Supreme Court.
    S. ——: -: -: -: Penal Statute Not Enforcible: Comity. The courts of no State enforce the penal laws of another. Comity is never carried to the extent of enforcing a foreign law that is contrary to the policy of the State in which its enforcement is asked, nor does it extend to the enforcement of a penal statute of another State; and when a court is called upon to enforce the statute of another State, full faith and credit do not compel it to enforce it in this State, but it has the right to construe it to be a penal statute, and if found to be such to refuse to enforce it.
    4. -: -: -: -: -: Public Acts. Besides, it is questionable whether the words “public acts,” used in the clause of the TT. S. Constitution requiring each State to give full faith and credit to the public acts of another State, include the statutes of such other State.
    5. -: -: -: -: -: Judgments. There is a wide difference between a suit to enforce a liability founded on the statute law of another State and a suit founded on a duly certified judgment rendered by a court of competent jurisdiction in such other State, even though the judgment was based on the same statute.
    G. -: -: -: -: -: Lex Loci Contractus. Likewise there is a wide difference between a suit to enforce a liability founded on a penal statute of another State and a suit brought 'in a court in this State on a contract made m another State and designed to be performed there. In the latter case the courts interpret the contract according to the law of that State, although it may differ from the law of this .State; but this they do in respect to “the settled rules of public and international law” which require courts to interpret the contract according to the He* loci contractus, and not in obedience to the full-faith-and-credit clause of the U. S. Constitution.
    Appeal from Jackson Circuit Court. — Hon. Henry L. McCune, Judge.
    Transferred to Kansas City Court oe Appeals.

      Lathrop, Morrow, Fox & Moore for appellants.

      O. A. Lucas and Ringolsky & White for respondents.
   VALLIANT, J.

Plaintiffs sue in three counts to recover three separate money demands aggregating $521.88. The alleged cause of action accrued in Colorado and is based on a statute of that State. A general demurrer to the petition was sustained, and there being no further pleading final judgment for defendants was rendered, from which the plaintiffs appealed. The appeal was taken to this court on the idea that a Federal question was involved, to-wit, that in sustaining the demurrer the court did not give full faith and credit to the statute of Colorado as required by section 1, article 4, of the Constitution of the United States. That section is in these words: “Full faith and credit shall be given in each State to the public acts, récords and judicial proceedings of every other State. And Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.”

Defendants were residents of Missouri, but went to Colorado, and there organized a mining corporation and embarked in the mining business in that State. 'By the statute law of Colorado all mining corporations were required to file a certain report within sixty days after the first day of January of their operations the preceding year, and failing to file snch report the officers and directors became individually liable for all debts contracted by the corporation. The defendants were the officers and directors of this corporation and they did not file the report as required by the statute. The corporation became indebted to the plaintiffs during the year to the amount of $415.01 for goods sold and delivered by them to it, and it became indebted to another concern in like manner for $64.20, and to still another to the amount of $42.67, which last two claims were duly assigned to plaintiffs, and all three were due and unpaid; therefore they brought this suit in Jackson county, Missouri. Those are substantially the facts stated in the petition.

Judging from the points discussed in the briefs it seems that the determination of the demurrer turned on the construction of the Colorado statute, it being contended on the part of defendants that it was a penal statute and therefore not enforceable in this State, but the plaintiff contended that it created a debt and afforded a remedy. The circuit court took the defendants’ view of the law and for-that reason sustained the demurrer.

There is no Federal question involved in this case. The most that the plaintiffs contend for is that the court misconstrued the Colorado statute; but the mere construction of the statute of another State, though it ¿should be an erroneous construction, does not deny its validity. [Allen v. Alleghany Co., 196 U. S. 458.] If a suit is based on a statute of a sister State the court must construe the statute, and jurisdiction to construe it is not dependent on its correct construction. "Whilst under the general international law, and especially under the more intimate international law between the sister States of this Union, the laws of one State are given force and effect in another when the cause of action has arisen under the laws of the foreign or sister State, yet this is so by comity, not by extraterritorial force of the foreign law; bnt comity is never carried to the extent of enforcing a foreign law that is contrary to the policy of the State in which its enforcement is asked and snch comity never extends to the enforcement of a penal statute of another State. As early as 1825 the Supreme Court of the United States, per Chief Justice Marshall, said: “The courts of no country execute the penal laws of another.” [The Antelope, 10 Wheat. 66.]

It has- never been held under this full faith and credit clause of the U. S. Constitution that a State is compelled to enforce in its courts the statute of another when such statute is penal in its character or contrary to the policy of the State. Considering the large number of States of this Union and their separate and distinct governmental policies, great confusion would result if a right of action created by the peculiar policy of one State under its peculiar statute could be carried into another State and the State to which it is carried be compelled to enforce it through its own courts although contrary to the policy of its own laws.

Construing this section 1 of article 4, the Supreme Court of the United States has said: “No State can legislate except with reference to its own jurisdiction. ’ [Bonaparte v. Tax Court, 104 U. S. 592.] And in Huntington v. Attrill, 146 U. S. 657, l. c. 669, the court said: “Laws have no force of themselves beyond the jurisidiction of the State which enacts them and can have extra-territorial effect only by comity of other States.”

If the plaintiffs had brought suit on their claims in Colorado and obtained a personal judgment there and had afterwards brought suit here on that judgment we would have a different case from the one now before us. In Bank v. Dalton, 9 How. (50 U. S.) 522, l. c. 528, the court said:

“The Constitution declares that ‘full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every State. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.’ No other part of the Constitution bears on the subject.
“The Act of 26th May, 1790, provides the mode of authentication, and then declares that ‘the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from whence the said records are or shall be taken. ’
“The legislation of Congress amounts to this— that the judgment of another State shall be record evidence of the demand, and that the defendant, when sued on the judgment, cannot go behind it and controvert the contract, or other cause of action, on which the judgment is founded; that it is evidence of an established demand which, standing alone, is conclusive between the parties to it. This is the whole extent to which Congress has gone.”

In Huntington v. Attrill, above cited, and which is relied on by appellants, the court was dealing with a judgment rendered in New York on a statute of that State which judgment duly certified under the act of Congress was made the basis of that suit. Therefore much that is said in the opinion in that case is of little assistance to us in the case before us. But in the course of the opinion, referring to the. clause of the Federal Constitution we are now considering and the acts of Congress giving it force, on page 685 the court said: “And they confer no new jurisdiction on the courts of any State; and therefore do not authorize them to take jurisdiction of a suit or prosecution of such a penal nature that it cannot, on settled rules of public and international law, be entertained by the judiciary of any other State than that in which the penalty was incurred.”

That is to say, neither the Constitution nor the acts of Congress conferred or imposed on the State courts jurisdiction or obligation to enforce the statute of another State, and when the statutes of another State were enforced it was as the settled rules of public and international law already imposed.

When a suit is brought in a court in this State on a contract made in another State and designed to be performed there we interpret the contract according to the law of that State, although it may differ from our law. But this we do in respect “to the settled rules of public and international law” which requires us to interpret the contract according to the lex loci contractus; it is not done in obedience to the full-faith-and-,credit clause of the Constitution.

There is a very great difference, in the light of this clause of the Constitution, between a suit to enforce a liability founded on the statute law of another State and a suit founded on a duly certified judgment rendered by a court of competent jurisdiction in another State. Yet it has been held that the State of Massachusetts was not bound to recognize the validity of a decree of divorce rendered in another State contrary to the policy of the Massachusetts law. [Andrews v. Andrews, 188 U. S. 14.]

In a later case language is used that seems to question whether the words “public acts” in that clause of the Constitution include statutes. And indeed it would seem to be a serious question, because the Constitution is the highest law on that subject, and if it includes statutes what right has any court to except from its operation statutes of a certain character, for example, penal statutes, since the Constitution itself makes no exception?

In the case last above alluded to the counsel in their brief said: “Our contention is that article 4 must be so construed as to make the constitutional enactment of Minnesota effective throughout the United States, so far as they apply to and affect property within the State. Otherwise the policy and laws of any State may be easily evaded.” But the Supreme Court of the United States answering that contention said: “We do not think that the clause of the Constitution above quoted has any bearing whatever upon the question under consideration. It only prescribes a rule by which courts, Federal and State, are to be» guided when a question arises in the progress of a pending suit as to the faith and credit to be given by the court to the public acts, records and judicial proceedings of a State other than that in which the court is sitting. Even if it be assumed that the word ‘acts’ includes ‘statutes,’ the clause has nothing to do with the conduct of individuals or corporations; and to invoke the rale which it prescribes does not make a case arising under the Constitution or laws of the United States.” [Minnesota v. Northern Securities Co., 194 U. S. 48.]

Whether the Colorado statute is so contrary to the policy of this State as that our courts will not enforce it, is to be answered by a mere construction of that statute without impairing its validity, and, according to what the United States Supreme Court said in Allen v. Alleghany Co., above mentioned, and in other cases in the opinion in that case cited, is not covered by section 1 of article 4 of the United States Constitution.

The Kansas City Court of Appeals alone has jurisdiction of this appeal, and therefore the cause is transferred to that court.

All concur.