author: WILLIAMSON, J.

text:
    JOHN D. GIBSON et al. v. MAUDE O. GIBSON et al., Appellants.—Two Cases.
    Division Two,
    March 13, 1920.
    1. TRUST ESTATE: Partition During Life of Beneficiary. Where the will in apt terms devised designated real estate to named trustees, to be held by them for the sole use and benefit of a named daughter during her natural life, the rents and profits to be paid over to her, and at her death the trust to terminate and the title to vest in fee simple in her children, if any, but if none, one-half the estate to vest in her husband and the other to be equally divided among testator’s remaining children or their bodily heirs, and further gave the trustees power to sell and reinvest for the sole use and benefit of the daughter upon her application to the circuit court and according to its directions, a petition, filed by said beneficiary and the only surviving trustee, setting forth said provisions of the will and asking that the property be partitioned among the heirs, does not state a cause of action. The clear intention and purpose of the will was that the property could be sold only by the trustees and then only for reinvestment for the sole use and benefit of the beneficiary, and the statute (Sec. 2569, R. S. 1909) declares that no partition of lands shall be made “contrary to the intention of the testator expressed in such will.”
    2. -: -: Intention of Testator. The clear intent and purpose of a will creating an active trust and providing not only what shall be done with the trust fund during the life of the beneficiary, but fixing the death of the beneficiary as the time when the property is to be divided or otherwise disposed of, is to prevent partition of the property during the lifetime of the beneficiary, whether or not so stated in express terms in the document. [Overruling Reinders v. Koppelmann, 68 Mo. 482; Preston v. Brandt, 96 Mo. 552; Sikemeier v. Galvin, 124 Mo. 367; and Sparks v. Clay, 185 Mo. 393; and following Hill v. Hill, 261 Mo. l. c. 60.]
    3. -: Annulment of Trust: Purpose Fully Accomplished. Where the will devised designated real estate to named trustees for the sole use and benefit of a named daughter during her natural life, the rents and profits to be turned over to her, and at her death the trust to terminate, and the title to vest in fee simple in her children, if any, but if none, one-half the estate to vest in her husband and the other half to be equally divided among testator’s remaining children or their bodily heirs, and gave the trustees power, on the daughter’s application to the circuit court, to sell the designated property and invest the proceeds “out on good real estate security,” allegations in the petition that the will became effective in 1869, that at the time it was made the daughter was inexperienced and incompetent to handle the property, that testator’s uppermost idea in creating the trust was to protect her from want, that she is now 73 years of age and competent to manage the property successfully, that she has never married and never will, that the property is not productive and the trustees have no power to mortgage or improve it so as to make it productive, do not state a cause of action for annulment of the trust and vesting the legal title in the beneficiary; nor do such allegations and oral proof thereof afford a sufficient ground for annulling the trust. Courts of equity are limited in their powers by the statutes and can neither make nor destroy wills, but in construing them must execute the lawful intention and plain purpose of the testator as gathered from the instrument itself. Besides, to annul the trust would be to adjudge that the daughter only a life estate in the property.
    4. -: -; Marriage of Beneficiary.' Where the will provides that in the event of the daughter’s death without issue, one-half of the trust estate shall vest in her husband, the court cannot undertake to say, though she is 76 years of age and has never married and testifies she never will, that she will not marry.
    Appeal from St. Louis City Circuit Court.' — Ron Gust. A. Wurdeman, Judge.
    Reversed.

      Anderson, Gilbert & Hayden and Cobbs é Logan for appellants.
    (1) The court erred in ordering partition. The court cannot permit property to he partitioned in violation of the terms of a will. Hill v., Hill, 261 Mo. 5'5; Stewart v. Jones, 219 Mo. 62;7; Stevens v. De La Vaulx, 166 Mo. 20; Ex parte Cubbage v. Franklin, 62 Mo. 364; Lilly v. Minkev, 126 Mo. 211; Mead v. Jennings, 46 Mo. 91; R. S. 1909, sec. 2569'; Spratt v. Lawson, 176 Mo. 175; Stockwell v. Lawson, 262 M.o. 671; Shelton v. Bragg, 189 S. W. 1174. (2) The court erred in ordering the trust to be terminated. An active trust created by will cannot be terminated by a court of equity, absent the consent of all parties. Smith v. Smith, 70 Mo. 448; Ewing v. Shannahan, 113 Mo. 196; Stevens v. De LaVaulx, 166 Mo. 20; Webb v. Hayden, 166 Mo. 39; Pugh v. Hayes, 113 Mo. 424; Simpson v. Erisner, 155 Mo. 157; Érston v. Muth, 179 M'o. App. 722. (3) A party cannot testify that she does not intend to marry, if the purpose of such testimony is to affect the present title to real estate. (4) The intention of the testator can be determined only from the language used in his will. Parol testimony is not admissible to explain or amplify the language used, except in case of a latent ambiguity. There is no latent ambiguity in the will herein considered. Wigram. on Wills, p. 9; Brown v. Tuschoff, 235' Mo. 449; Lenhoff v. Theine, 184 Mo. 346. (5) It,cannot be told until the death of Margaret O. Gibson, who will be the heirs of. the body of the remaining children of testator, and, therefore, there is a defect of parties plaintiff’ and defendant in this case. Collins v. Crawford, 214 Mo. 183; Parish v. Treadway, 267 Mo. 91; Sullivan v. Garesche, 229 Mo. 496. (6) An active trust cannot be terminated, until the purpose of 'the trust is fulfilled. Webb v. Hayden, 166 Mo. 39; Pugh v. Hayes, 113 Mo. 424; Simpson v. Erisner, 155 Mo., 157; Easton v. Demuth, 179 Mo. App. 722-i (7) An active trust exists wherever the terms creating the trust clothe the trustee with a, dis-. cfetion, or impose upon the trustee a duty which he is required to perform. Webb v. Hayden, 166 Mo. 39; Pugh v. H'ayes, 113 Mo. 424; Simpson v. Erisner, 155 Mo. 157. (8) Under the will, Margaret O. Gibson is a sole tenant for life of the property in question, and the remainders over, created by the will, are contingent,, and, therefore, there can be no partition of the prop erty involved. Richardson v. Van Gundy, 271 111. 476; Stockwell v. Stockwell, 262 Mo. 671; Seymour v. Bowles, 172 111. 521; Ruddell v. Wren, 208 111. 508. (9) There can be no partition of real property unless those whti are to take at the termination of the life estate can be definitely ascertained, namely, unless the remainders over upon termination of the life estate are vested. Stewart v. Jones, 219 Mo. 614; Stockwell v. Stockwell, 262 Mo. 671. (10) There can he no partition of real property contrary to the intention of tne testator as expressed in his last will and testament. Hill v. ■ Hill, 261 Mo. 55; Stockwell v. Stockwell, 262 ' Mo. 671; Stevens v. .De La Vaulx, 166' Mo. 20.
    77. A. Loev.y for respondents.
    (1) Partition may be had even where there is a will disposing of realty unless the will itself prohibits it. Chouteau v. Paul, 3 Mo. 262; Sikemeier v. Galvin, 124 Mo. 371. (2) Life tenant may sue for partition. Sikemeier v. Galvin, 124 Mo. 370; Sparks v. Olay, 185 Mo. 398, 408. Here, a remainderman, life tenant and trustee join as plaintiffs. And here the life tenant expressly requests ascertainment of and is willing to accept cash value of her life estate, as provided by Sec. 8499, R. S. 1909. She could insist that the property be sold'subject to her life estate, but here expressly acquiesces in the sale of the whole estate. M'cKnight v. Hagemeier, 209 S. W. 903. (3) Court will not order partition, necessarily without disturbing interests of devisees. Spratt v. Lawson, 176 Mo. 182; Barnard v. Keathly, 230 Mo. 225. The interests of the parties necessarily remain the same in the, proceeds of sale as they were in the realty. The sole purpose of the partition law is to turn realty into cash for ready division according to the respective interests of the parties. (4) The chancellor can abolish a testamentary trust. Donaldson v. Allen, 182 Mo. 640, 648; Smith v. Smith, 194 Mo. App. 312; Underhill Trusts (7 Ed.), p. 355. He. may order sale of a part of the corpus of a trust estate to preserve the remainder. Stevens v. De La Vaulx, 166 Mo. 28. A conveyance by life tenant to stranger renders purpose of trust impossible and the court -will decree termination. Perry on Trusts, sec. 720, pp. 1498-9, note. (5) That respondent, the life tenant (now 80 years old), has no husband, lapses the estate created for such husband and same reverts and goes back to the heirs of the testator like any other lapsed legacy or devise, all of whom except the few appellants owning together only 42/288ths share, have conveyed their title to v her by warranty deed. Yan Petres v. C'ole, 73 Mo. 29; Sandusky] v. Sandusky, 260 Mo. 351. (6<) The chancellor can properly adjudicate as to the possibility of issue. Young v. Hyde, 255 Mo. 496. This even in case of a man. lb.
   WILLIAMSON, J.

These two causes have been consolidated and abstracted and briefed as one, and will be decided as one.

The' petition is in two counts. The first seeks a partition of certain lands in St. Louis County, and the second seeks to annul a trust created by the will of John W. Gibson, concerning the same lands. Thq parties are numerous, there being about forty parties — 1 plaintiff and about eighteen defendants, in addition to the husbands or wives of those who are married. Several are minors. Except various husbands and wives and one other person, all of the parties appear to be the children, grand-children or great-grand-children of a common ancestor, John W. Gibson. The judgment below was in favor of certain plaintiffs on both counts, and certain defendants appeal. The facts follow:

John W. Gibson died, testate, in 1869. His wife died in 1905. He left several sons and several daughters. To his sons he left certain property without re striction. The property given by his will to his three daughters appears to have been left in trust for each of them, separately. The plaintiff, Margaret O. Gibson, is one of these daughters, and it is with the property left to her and the trust created by the will regarding it, alone, that we are here concerned.

The will was duly probated. So much of it as has to do with the matters here involved is as follows:

“ Fourth. I give and bequeath to James E. Bis sell, William O. Gibson and my son, John D. Gibson, the following described real estate, to-wit: [Here follows description], to be held by the said James E. Bis-sell, William O. Gibson, and my son, John D, Gibson, in trust for the sole use and benefit of my said daughter, Margaret O. Gibson, during the term of her natural fife. All the rents and profit and issue, of whatsoever kind, arising therefrom to he paid over or appropriated for said daughter, Margaret O'. Gibson, as she may from time to time- direct. And, at her death, the trust estate hereby created is to cease and determine, and the said real estate and property shall thereupon descend and vest in fee simple in the children in being, if any, of said daughter, Margaret O. Gibson, share and share alike. But if said daughter shall die without issue, then it is my will that tlie said trust estate shall cease and determine, and the said real estate shall descend and vest in the manner following, to-wit: One-half of the property shall vest in fee simple in her husband, and the other half shall be equally divided among my remaining children or heirs of their body forever. . .
“ Seventh. All real estate conveyed by this my last will and testament to the aforesaid trustees for the sole use and benefit of my daughters, I give to them, the said trustees, the power to sell the same under directions from the Circuit Court of the County of St. Liouis, Missouri, whenever application shall he made for the sale of said real estate by the beneficiaries of said real estate, and upon said trustees giving bond approved of by the said court in double the amount of the value of the real estate to be sold, conditioned that said trustees shall invest the proceeds out on g’ood real estate security to a better ¡advantage than the state or condition in which it is now, for the above-named purposes.”

Ten acres of this land was sold to one Ramming, who is made a party defendant for that reason. The respondent John D, Gibson is the sole surviving and acting trustee. The count in partition is substantially in the usual form. It sets forth the clauses in the will above quoted, describes the lands, alleges that Margaret O. Gibson has a life estate therein; that John 3>. .Gibson, William Winans Gibson and Anna L. Richardson are each entitled to one-sixth interest in the remainder, and prays for an order of sale on the ground that the property cannot be divided without materially prejudicing the rights of the parties in interest.

The second count seeks, as stated, to annul the trust created by the will. After alleging the execution of the will, the death of the testator, the probating of the will, the devise to the trustees, John D. .Gibson et al., of certain lands described in the petition, it sets forth the paragraphs whereby the devise’ is made, and the trust created.

Plaintiffs then allege the sale of ten acres of this land to one Ramming; that James R. Bisséll and William O. Gibson, who were co-trustees with John D. Gibson, are dead, leaving John D. Gibson as the sole surviving trustee; that Margaret O. Gibson has never married, and does not expect to marry, and has no issue and will never have; that she is the sole beneficiary of the trust and is willing and desirous that the trust should be terminated; that the purposes for which the trust was created have been fully accomplished, and no*reason exists for the further existence of-the trust: that the purpose of the testator in creating the trust was to guard' the interests of the beneficiary, who, on account of her inexperience, was incompetent to handle the property herself at the time the will was made, and to insure her a comfortable living out of the property de vised to her, “and not for the purpose of entailing it to his children, or grand-children or their heirs,” and that the beneficiary is now seventy-three years of age, and “fully able to handle, control and operate real and personal property.”

It is alleged that the testator requested his son, John I). Gibson, who is an attorney, to draw his will, and fully discussed the provisions of the will with him. The purport of these discussions is set forth at some length, with the idea of showing, apparently, what the intent and purpose of the testator was, as throwing light upon the proper construction to be given to his will. It is alleged that for several years after the death of the testator the income from the property was sufficient to carry out the purpose of the trust, namely, the support of tliej beneficiary, Margaret O. Gibson, but that the property has since declined in value, the income has been greatly reduced, and the burden of taxes and repairs has grown heavier; that the property is in part unimproved and the trustee has no means with which to improve it; that for that reason it has been difficult, and*at times impossible, to rent portions of it; that portions of the property, while inherently valuable, cannot be sold to advantage; that the trustee has no power to mortgage the property for the purpose of making improvements, and that the trust has for many years “failed to do what was uppermost in his (testator’s) mind.” The prayer is for a decree annulling the trust, and “vesting the fee simple title to said property in said Margaret O. Gibson.”

Certain defendants demurred to each count in the petition, and, their demurrer being overruled, filed an answer. The demurrer was on the ground' that the petition did not, state facts sufficient to constitute a cause of - action, and various other grounds. The* answer consists essentially of a general denial, coupled with numerous legal conclusions. These conclusions were on motion — and, as we think, properly — stricken out. On the issue thus formed a trial was had. Judgment was rendered in favor of plaintiffs on both counts. At the time of rendering judgment, however, and as a part of it, the court dismissed the petition as to all of the plaintiffs except John D. Gibson, trustee, and Margaret O. Gibson, the beneficiary, and as to all of the defendants save six, to-wit, Peter B. Gibson, Bissell B. Gibson (apparently meaning thereby Russell G- Gibson), Maude O. Gibson, Hattie L. Gibson, Cora E. Boyd and Fannie C. McLean, for the reason that they (the parties dismissed) have no right, title, estate or interest in the real estate- herein described. The six defendants last above named in due season filed their motion for a new trial, setting forth some twenty separate grounds therefor, and, this motion being overruled, they have brought the case here by appropriate proceedings. Certain other defendants, as to whom the petition was dismissed, have also appealed, and a motion has been filed to dismiss the appeal taken by them, on the ground that they are not aggrieved by the judgment of the court. This mlotion is sustained. Inasmuch, however, as the defendants rightfully appealing are parties to both cases, both cases are here for decision. Such other facts as may be thought necessary to a correct understanding of the situation, if any, will be set forth in the opinion.

I. Appellants’ first assignment of error is the action of the trial court in overruling appellants’ demurrer to each count of the petition. Since both counts are in effect based upon the paragraphs quoted from the testator’s will, this assignment involves the construction of that portion of the will.

By these paragraphs the testator in. apt terms named the trustees, described the property to be held in trust, and fixed the terms and conditions upon which it should be so held. It will be noted that the trustees were (a) to hold the property in question for the sole use and benefit of Margaret O. Gibson during her natural life; (b) to pay over to her all the rents and profits arising therefrom; (c) to sell the property under directions of the Circuit Court of the County of Saint Louis, upon certain terms in the will prescribed, and (d) to invest the proceeds of any property so sold in good real estate security for the purposes above namled.

Furthermore, the term during which the trust shall continue is definitely fixed. The trust is to cease and determine at the death of Margaret O. Gibson, and thereupon the property held in trust descends and vests in fee simple in her children, if any, but if' she shall die without issue, then one-half of the property vests in her husband, and the remainder is to be equally divided among the testator’s remaining children or heirs of his body forever.

That this is not a passive, but an active trust, seems to admit of no question.

-In the case of Higbee v. Brockenbrough, 191 S. W. 994, the testatrix bequeathed certain property to a trustee for the use and ’ benefit of her daughter, with directions to so use the property as best to promote the interests' and comfort of the daughter and her family, and authorized Jiim to invest the trust fund in a suitable home, taking the title to himself as trustee, and to allow the daughter and her family to occupy the same, or to use the rents thereof during the lifetime of her daughter; or the trustee was authorized to invest the funds in interest-paying securities, paying the income to the daughter during her natural life, and at her death to convey the same to her children, should she leave children surviving her, and if not,, then to testatrix’s son in fee simple. This was held to be an active trust, with the legal title vested in the trustee, the devisee taking no alienable interest, but only an equitable interest in the income, her right to which was qualified by the termls of the will. To the same effect are the following cases: Maxwell v. Growney, 213 S. W. 427, l. c. 429; Freeman, v. Maxwell, 262 Mo. 13, l. c. 24; Simpson v. Erisner, 155 Mo. 157, l. c. 164.

Assuming, then, that this is an active trust as defined by the decisions of this court, the question then arises whether or not under the circumstances in the first count of the petition! -set forth, the plaintiffs are entitled to a partition of the property in question. The language of the will leaves no doubt of the intention of the testator to vest the title to the property in question in the trustee, and gives to the beneficiary no power of disposition whatever. It is expressly provided that the trustee shall have the power to sell, and no other power of sale' is given. It is provided with equal clearness that the trust shall continue until the death of the beneficiary, át which time the property shall be divided.

As was- said in the case of Maxwell v. Growney, supra: “The full and express powers conferred upon the trustee clearly exclude the idea that the beneficiary was given a like power of disposal. It therefore follows that the beneficiary did not have an alienable interest iii the land which he attempted to incumber with- the deed of trust” (citing authorities).

If, therefore, the beneficiary, Miss Gibson, took no alienable interest in the property involved in the trust, and hence cannot herself alienate it, or any part of it, she cannot do by indirection, by way of a suit in partition, what she cannot do directly. In construing a will, the first and foremost rule is that the will shall be so construed as to give effect to the intention of the testator. All other rules of construction are subordinate to this rule, and the statutes in two pertiment sections emphasize the duty of the court so to construe a will. These sections are as follows:

“All courts and others concerned in the execution of last wills shall have due reg'ard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them.” [Sec. 583, R. S. 1909.]
“No partition or sale of lands, tenements or hereditaments, devised,-’ by any last will, shall be made under the provisions of" this article, contrary to the intention of the testator, expressed in any such will.” [Sec. 2569, R. S. 1909.]

What, then, was “the true intent and meaning of the testator?” When the document creating a trust provides not only what shall be done with the trust fund during the life of the beneficiary, but also fixes a time when the property shall be divided or otherwise disposed of, and that timle is at the end of the life of the beneficiary, this court has held in numerous decisions that the clear intent and purpose of the testator is to prevent partition of the property during the lifetime of the beneficiary, whether it is so stated' in the document itself in express terms or not. [Hill v. Hill, 261 Mo. 55, l. c. 58.] In the case at bar, as in the case last above mentioned, the respondents rely strongly upon the cases of Sikemeier v. Galvin, 124 Mo. 361, and Reinders v. Koppelmann, 68 Mo. 482. Thesé two cases were considered at the time the decision was rendered in the case of Gulick v. Huntley, 144 Mo. l. c. 246, where a similar question arose, and while they were not then expressly overruled, the doctrine announced in them was not followed. In the later case of Stewart v. Jones, 219 Mo. 614, the Sikemeier case was cited in the briefs of counsel, but was not followed in the opinion. In the case of Hill v. Hill, supra, the court remarked, concerning these cases, that although they had not been expressly overruled, they had been intentionally disregarded in later cases, and said: “We hold they are not controlling authority in this State, in so far as they conflict with the conclusions announced in this case.” [Hill v. Hill, 261 Mo. l. c. 60.]

Counsel for respondents cite the case of Sparks v. Clay, 185 Mo. 393, in support of their contention. In that case the property sought to be partitioned was deeded by the father to two sons, each taking an undivided one-fourth interest in fee, and the remainder to two daughters “for their use and benefit during their natural life, and in fee simple to their heirs.” The case was a suit in partition, and ‘partition was ordered. However, the decision in that case is based solely upon the authority of the cases of Reinders v. Koppelmann, and Sikemeier v. Galvin, supra, as the opinion shows. Both of these cases have been discredited and in effect overruled as to the point here involved, and are no longer to be considered as authority upon that point. In order to clarify the situation, the cases of Reinders v. Koppelmann, 68 Mo. 482; Preston v. Brant, 96 Mo. 552; Sikemeier v. Galvin, 124 Mo. 367, and Sparks v. Olay, 185. Mo. 393, are now expressly overruled, in so far as they conflict with the holdings of this court in Hill v. Hill, supra, and in this case.

Respondents also cite the case of Barnard v. Keathley, 230 Mo. 209. This was a suit for partition. The property was held under the provisions of the will of Roland Keathley, in which the testator expressed his “desire” that his executor sell certain property, both real and personal, and distribute the money among testator’s children according- to the directions of the will. It was there held that the will converted the real estate into personalty, and that the executor took no title to the realty as such. The title to the lands was held to be in the devisees under the will, and partition was for that reason allowed. The case in no sense supports respondents’ contention.

A case strongly analogous to the case at bar is the case of Stockwell v. Stockwell, 262 Mo. 671, a partition suit in which all parties claimed by deed from the owner of the fee, James M. Stockwell, to> the plaintiff, “Alice M. Stockwell, and her bodily heirs.” A suit in partition was brought by Alice M. Stockwell and one of her two children, the other being a defendant. Brown, C., in a learned opinion. discussed the question involved with great thoroughness, and held that there was no right to partition in such case, for the reason, amlong others, that Mrs. Stockwell having a life estate only, whoever might take the title upon the death of Mrs. Stockwell would not take title through her or represent her with respect thereto, but on the contrary would take as a grantee in the deed from James M. Stockwell, under which she held a life estate. The court below held that the estate was not subject to partition, and that finding was affirmed by this court in Division One, all of the judges of that division concurring.

The case of Stevens v. De La Vaulx, 166 Mo. 20, is perhaps even more strikingly analogous to the pending cause. Indeed, a considerable portion of the second count of plaintiff’s petition might have been taken almost bodily from the petition in that case. There, as here, a testator left certain property in.trust for certain named donees, giving them the usufruct, only, during their lives, with the remainder in fee to their heirs. A suit in equity was brought for the partition of the trust estate, and a demturrer to the petition was sustained by the trial court, on the ground that partition would not lie in such case. On appeal, the action of the trial court was unanimously affirmed in an opinion by Valliant, J., almost the whole of which is emphatically pertinent to this case.

In the instant case, it cannot be determined until the death of the beneficiary, Margaret O. Gibson, in whom the title to the land in question will vest; no power of disposition in whole or in part is given to her; the legal title is not vested in her; her rights are limited to the usufruct only of the trust estate; there is no alienable interest in her, and therefore we hold that, giving effect as we must to the plain intent and meaning of the testator, partition will not lie during her lifetime. The demurrer to the first count of the petition should have been sustained.

II. The second count of the petition is denominated in the pleadings “a bill to abolish and terminate trust.” To this count, as above stated, a demurrer was filed, on the ground that it stated no cause of action. This demurrer was overruled. Proof was offered tending to show that at the time the testator made his will, he consulted with his son, John D. Gibson, who is an attorney and who wrote the will. John U. Gibson, was asked and permitted to tell the intention of the father in creating the trust, and, so testifying, the witness said: “The uppermost idea, the predominant idea of my father, was to so plan that his daughters should never be in want.” The beneficiary, Margaret O. Gibson, was also called as a witness, and it was shown by her testimony, as well as by that of other witnesses, that the property in question is unproductive; that the taxes amount to more than the income from the land as to the farm property, and that it happens occasionally that the tenants default in the payment of their rent in the city property, and the income hardly equals the expense. Miss Gibson also testified that she nau never married, and had no expectation of marrying. The testimony of certain physicians was introducen to show that there was no possibility that the beneficiary would ever have children. Certain deeds were then offered in evidence, tending to show that in addition to her life estate, Miss Gibson-is the owner of much the greater part of the remainder interest in the property. On the facts thus shown counsel for respondents make a vigorous appeal to this court, to the general effect that it was the intention of the testator to create a fund for the benefit of his daughter; that the trust has failed of accomplishment; that to refuse partition and termination of the trust is deliberately to disregard the' plain and single intent of the will, and to nullify the wishes of the testator. It is further urged upon onr consideration that Miss Gibson is now seventy-six years old and unmarried, and that she will not marry, and for these and similar reasons this court is urged to abolish the trust.- In the view we take of the law, we have slight concern with the evidence, but it tends to elucidate the question involved.

In considering this phase of this case, it is well to bear in mind the wise remark of Lord Campbell, in East India Company v. Paul, 7 Moore, P. C. 111, that “it is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad law.” It must be conceded that the pleadings and the proof under the second count of this petition show a lamentable state of. affairs, so far as the beneficiary is concerned. The property apparently scarcely pays expenses, and if this property is the beneficiary’s sole source of incomle her case is hard indeed. However, courts do not sit to write wills, but to construe them, and we have no more right to set aside a will than to set aside a contract. In effect, to ask us to do so is to call upon this court to substitute its judgment for the judgment of the testator, and experience holds up a warning finger at this point. It may well enough be that present conditions wpuld seem to indicate the advisability of destroying the trust created in this case. Such a situation might arise with reference to any trust created by will or otherwise, but the indisputable fact remains that this court has neither the moral right nor the lawful power to substitute its judgment on mattery of business for the judgment of testators or others creating trusts, If such a thing were done, it might well happen that some unexpected change would, in the course of a short time, vindicate the wisdom of the testator, and emblazon the folly of the court. This exact question was presented in the case of Stevens v. De La Vaulx, supra, and the appeal was made there, as here, to the equity power of the court, but the court declined to grant the relief prayed, saying that: “Broad as the jurisdiction of a court of equity is, it is nevertheless within the limits of the statute law of this State, and the chancellor is just as much bound to obey the law as is the judge in a law court.” [See also Stewart v. Jones, 219 Mo. 614, l. c. 637, and Arnold v. Brockenbrough, 29 Mo. App. 625, l. c. 629.]

Furthermore, the beneficiary under a will takes by grace of the testator, and not as a matter of right. Since the testator gives, the testator may attach such lawful conditions to his gifts as his judgment or his fancy may dictate. So long as the plain intent and purpose of the testator is apparent from the terms of the will itself, that purpose must control. Evidence, such as was admitted in the instant case, to prove a purpose contrary to that embodied in unequivocal terms in the' will, or varying from! it, is clearly inadmissible. [Brown v. Tuschoff, 235 Mo. 449, l. c. 456; Roberts v. Crume, 173 Mo. 572, l. c. 579, and authorities there cited.]

We are not unmindful of the power of courts of equity to annul or otherwise terminate trusts under appropriate circumstances, as where the purposes of the trust have been accomplished or their accomplishment has become impossible, and, perhaps, under other conditions, but no such conditions exist here. The case of Donaldson v. Allen, 182 Mo. 626, cited by respondents, has no application. In that case, the lands wer.' devised to the trustees “to be held, improved, leased, sold or otherwise disposed of as to them may seem best for the use and benefit of my own children.” The trustees were thus given power to close .the trust estate themselves. The court found as a fact in that case that the trust estate was composed in part of productive, and in part of unproductive property, linked together that one might carry the other, in the hope of an increase in value of the unproductive property. The cost of carrying the unproductive property proved great and the increase in value small. After a twenty-year test the court held the trust created for that purpose to have proven its impossibility, and that the trustees had had a reasonable time in which to execute the trust, and not having done so, and being subject to the superintending control of a court of equity, the court had power to terminate the trust. No such discretion is given the trustees in the case at bar. On the contrary, they are required, when selling any of the trust lands, to give bond that jthey will reinvest the proceeds “out on good real estate security,” thus perpetuating the trust estate and emphasizing the obvious intent of the testator that the body of the estate should be kept intact until the death of the beneficiary.

But to abolish this trust would, for all practical purposes, be but an idle ceremony, in any event. Under the undisputed facts in this case, we cannot see how the court, in the event the trust were annulled, could do otherwise than adjudge Miss Gibson to be the owner of a life estate in the lands in question. Lands subject to a life estate, according to the authorities above cited, are not subject to partition in contravention of the terms of the document creating such estate, and hence a mere dissolution of the trust in this case would avail nothing.

The will provides that in the event of the death of the beneficiary, without issue, one-half of the trust estate shall vest in her husband. It is urged upon our attention that the beneficiary in this instance is an elderly spinster, and has herself announced from the witness stand that she has no intention of marrying, but can this court undertake to say, on any state of law or fact, when a woman will marry? In the providence of God, many things are witheld from the knowledge of men. When a woman will marry is one of them. No court, so far as we know, has ever had the temerity to lay down a rule upon that proposition, and we have little desire to venture into untrodden ways.

Counsel for respondents closes his brief with this flattering suggestion: ‘ ‘ There is a right and your honors can find a remedy to enforce that right. ’ ’ We accept the compliment, but decline the task. We have no desire to graft a legal bud of our own germination on the stalk of a lawsuit planted by the hand of another. However unhappy the consequences which may ensue to any of the parties to this action by reason of the terms of the will, those consequences must he attributed to the testator, and not to the law. So long as those who are of a mind to write wills insist upon projecting the dead hand so far into the future, so long must the beneficiaries under such wills take their chances on the wisdom or the unwisdom of the provisions made.

It-follows from what’ has been stated that the demurrer to the second count of the petition should have been sustained also. For the reasons given, the judgment of the lower court should he reversed. It is so ordered.

All concur.


source: Caselaw Access Project

author: WHITE, C. PER CURIAM:

license: Public Domain

text:
    THE STATE ex rel. JOHN E. DOLMAN v. C. E. DICKEY, JOHN BRENDEL and W. D. MORRISON, BOARD OF PUBLIC WORKS, and CARL P. HOFF, Appellants.
    Division Two,
    March 13, 1920.
    1. MANDAMUS: When Maintainable. A litigant asking relief by mandamus must prove that he has a clear, unequivocal, specific right to have performed the thing demanded. A ministerial duty which may be enforced by the writ is one in respect to which nothing is left to the discretion of respondent in the performance of the duty.
    2. -: Street Improvement: Substantial Compliance: By Whom Determined. If it be conceded, or proven beyond dispute, that a certain specified slreet improvement was constructed in substantial compliance with the contract, or that such was the only proper inference to be drawn from the proven facts, the proper city authorities have no discretion to refuse to approve and pay for it, and mandamus will avail to compel the issuance of tax bills therefor, but it is for the proper city officers, and. not for the court, to determine whether the contract was substantially complied with; and where both the statute and contract invested the board of public works with full authority to determine to what extent the contract had been complied with and there is positive evidence that the paving was not constructed according to the specifications, but was defective in many respects, the board cannot'be compelled by mandamus to accept the work and issue the tax bills.
    3. -: -: Stipulations in Contract Binding: Exception. A stipulation in a contract for street improvement that the contractor “will not be entitled to receive payment for any portion of the aforesaid work or materials until the same shall have been fully completed in the manner set forth in this agreement to the satisfaction and acceptance of the Board of Public Works,” being in harmony with the statute (Sec. 8840, R. S. 1909), is binding and conclusive upon the parties, in the absence of fraud, mistake, oversight or misconception of the facts.
    4. -: -: Substantial Compliance with Contract: Judicial Function. When a court assumes in mandamus to hear the .evidence and decide whether the pavement of a street came up to a substantial compliance with the contract, it assumes to exercise a function which the law imposes on the proper city officers; such evidence can be considered by the court only for the purpose of determining whether those officer acted arbitrarily in defiance of proven facts.
    6. -: -: -: Exception: Arbitrary Action. There is an exception to the rule that the authority to determine whether there has been a substantial compliance with the contract for a street improvement is ‘vested in the proper municipal officers, and that is that their discretion must be exercised impartially and in good faith. Where their discretion is abused and they act in a capricious and arbitrary manner, mandamus will lie to compel proper action. But mere opinion that respondents were influenced by political considerations does not establish arbitrary or capricious action.
    6. -: Capricious and Arbitrary Action: Finding of'Trial Court: Appellate Practice. A finding of facts by the trial court in a mandamus suit is binding upon the appellate court in a matter which the court had authority to find; but a general judgment for relator, without any specific finding and without any evidence that the municipal authorities acted capriciously and arbitrarily in determining that the contractor had not contracted the street paying in accordance with the specifications of his contract, is not a finding that they had so acted.
    Appeal from Buchanan Circuit Court. — Hon. Thomas B. Allen, Judge.
    Reversed.

      8tiga.ll, Meyer & Hamm for appellants.
    (1) Appellants herein are vested with a discretion which is not subject to review by mandamus. Merrill on Mandamus, sec. 20; Secs. 8831, 8840-, R. S. 1909'; McQuillin on Municipal Corporation, sec. 2548; State ex rel. v. Mier, 142 Mo. App. 310.' (2) If the inferior tribunal, corporate body or public agent or officer has a discretion ánd acts and exercises it, this discretion cannot be controlled by mandamus. Dillon on Municipal Corporations, sec. 1489; State v. Bersh, 83 Mo. App. 657; State v. Walker, 85' Mo. App. 247; State ex rel. v. Thornhill, 174 Mo. App. 473. (3) In order for mandamus to be available it is essential that the relator have a clear legal right to the thing demanded, and it must be the imperative duty of the respondent to.perform the act required. Dillon on Municipal Corporations, sec. I486; Gardner v. Templeton St. Ry. Co.,- 184 Mass. 294; State v. Nelson, 105 Wis. Ill; State v. Brown, 172 Mo. 374; State v. Orear, 144 M'o. 157; McQuillin on Municipal Corporations, secs. 2545-2546. (4) The finding and judgment of the trial court-in this case in view of the authorities cited' above is against the law and the evidence, (a) The evidence taken in its entirety shows that the contract was not substantially complied with, (b) The evidence shows that the Board of Public Works rightly decided that the work was not properly performed and under the charter provisions governing them, refused, in the exorcise of the discretion vested in them by law, to issue the tax bills for said work, (c) Appellants showed ample and just cause why a peremptory writ of mandamus should not issue.

      John E. Dolman for respondent.
    (1) The undisputed evidence shows, including' that of the city engineer himself, and it was also formally admitted on the trial, that the work to he performed under the contract in question was complete^ on the 21st day of November, 1914, and within the time prescribed by the contract and thereupon thrown open to public travel; and all that remained was the payment therefor in the manner prescribed by law, viz., the issue of special tax bills in favor of the contractor by the Board of Public Works, and the certification thereof by the city engineer. In no other manner could the contractor obtain payment for his work and materials. Sec. 8710, R. S. 1909. (2) After the contract has been fully performed the Board of Public Works under the statute is legally bound to provide for the issuance of the bills, and it has no discretion to refuse to do so, for the reason that in its opinion the contract has not been properly performed, that being a matter for the property owner to take advantage of in defense of his tax bills when the contractor seeks to enforce payment. It is a well-established rule that mandamus will lie to compel the performance of an act, when such act is necessary as a preliminary step to the adjudication of an individual’s rights. 19 Am. & Eng. Ency. Law, 785; State ex rel. Saunders v. Wear, 37 Mo. App. 334; State ex rel. Fleming v. Shackelford, 263 Mo. 60'; State ex rel. v. Homer, 249 Mo. 58; Castello v. St. Louis Circuit Court, 28 Mo. 274; State ex rel. v. Philips,, 97 Mr. 339, 348; Wood v. Strother, 18 Pac. 771; Woreley v. Power, 73 Tenn. 699; Wren v. City, 96 Ind. 219; City v. Allen, 40 Ind. 347. (3) “It has been repeatedly held that mandamus will lie when there has been a palpable abuse of discretion; that discretion must always be reasonably, fairly and impartially exercised in good faith and that whether or not it has been, so exercised is a question for the courts.” It is the only remedy. State ex rel. v. Dreyer, 183 Mr. App. 481; State ex rel. v. Adcock, 206 Mo. 550; State ex rel. v. Public Schools, 134 Mo. 296; State ex rel. v. Board of Health, 103 Mo. .22. (4) The judgment of the trial court is according to the well-established law of this State. “If he has performed his contract he is .entitled to pay, and whether there has been a performance is a question of fact to be determined upon the evidence. It is true if a party makes a contract he must abide by it before he can recover on it — and if an approval by an outside party is made a condition precedent, such an approval must be obtained in a suit upon the contract. But here the action is not founded upon the contract. The - contract is me rely used as an instrument of proof, and if the plaintiff shows that he has done the work under the agreement he should be permitted to recover whatever he may show himself justly entitled to.” Neenan v. Donoghue, 50' Mo. 495; American Surety Co. v. Fruin-Bambrick Co., 182 Mo. App. 674; Stockman v. Allen, 160 Mo. App. 232; Stout v. St. Louis Tribune Co., 52 Mo.’ 342; Kinnerk v. Phila. Ball Club, 92 Mo. App. 669. (5) Substantial compliance with the contract is all that the law requires. A strict and literal compliance .with a contract prescribing the manner in which public street improvements shall be made has never been required as a condition to the acceptance of the work by the city. Steffen v. Fox, 124 Mr. 635'; Cole v. Skrainka, 105 Mo. 309; Porter v. Paving Co., 214 Mo. 20; City of Maryville v. 'Cox, 181 Mo. App. 260'; Gratz v. Wyeoff, 165 Mo. App. 196; Stover v. Springfield, 167 Mo. App. 328; Trimble v. Stewart, 168 Mo. App. 276. “The fact that this work has to be performed to the satisfaction of the commissioners and their engineer of construction is not conclusive against the plaintiff. That power cannot be exercised in an arbitrary manner, but reasonably and in accordance with fairness and good faith.” State ex rel. v. Dreyer, 183 Mo. App. 482; State ex rel. v. Adcock, 206 Mr. 556; Ross v. City of New York, 82. N. Y. Supp. 920; Paulin & Orendorff v. City, 12|7 Fed. 55; Elizabeth v. Fitzgerald, 114 Fed. 547; Laxnson v. City, 95 N. W. 78. (6) Mandamus is a civil proceeding in the nature of an action at law and the findings of the trial court as to the facts when supported by any substantial evidence cannot be disturbed on appeal. State ex rel. v. Dreyer, 183 Mó. App. 463; State ex rel. v. Bourne, 151 Mo. App. 104; State ex rel. v. Insurance Co., 169 Mo. App. 354.
   WHITE, C.

This is a proceeding to compel by mandamus the issuance of tax bills to pay for the construction of pavement on a street in St. Joseph, a city of the first class. The relator is assignee of the Standard Construction Company, the contractor in the performance of the work. The Circuit Court of Buchanan County, after hearing the evidence, determined the issues in favor of relator, and granted a peremptor writ and defendants appealed.

The petition for the alternative writ set out the ‘ordinance.providing for the concrete paving of Twelfth Street from Hickory Street to Barfield Avenue, and constructing concrete sidewalks therealong; the execution of the contract by the Board of Public Works of St. Joseph,- with the Standard Construction Company, a partnership; the full performance of the work under the contract, according to specifications; the assignment of the prospective tax bills and rights under the contract to relator; a demand upon the City Engineer and Board of Public Works to accept the work and issue the tax bills, and their refusal; and alleges: “That said board and engineer, without just cause or reason, arbitrarily and by reason of ignorance and. misapprehension of facts, and in an effort to construe the legal effect of said contract and moved by caprice and prejudice, have refused and failed to perform said duty and still refuse to perform the same, though repeated demands have been made for such performance.” The petitioner further alleged that he was remediless by ordinary proceeding at law and prayed for the writ of mandamus commanding the hoard and engineer to issue the tax bills.

An alternative writ was issued in accordance with the prayer of the petition, and the defendants filed their answer and return to the same, admitting that they were officers of the city, as alleged, the passage of the ordinance, and the execution of the contract ■ with the Standard Construction Company. The return alleged that the Board of Public Works, by virtue of the charter of the City of St. Joseph, was vested with discretionary powers and duties in relation to the execution and performance of contracts for public improvements and in the acceptance of and payment for work under such contracts; that pursuant to the provisions of Section 8840, Revised Statutes 1909, the contract under consideration contained the following stipulation:

“And the said party of the first part further agrees that he will not be entitled to receive payment for any portion of the aforesaid work or materials until the same shall have been fully completed in the manner set forth in this agreement to the satisfaction and acceptance of the Board of. Public Works.”

The return then alleged that the Standard Construction Company did not make the improvement provided for in the ordinance in accordance with the contract, plans and specifications, nor within the time specified for doing the work; that the improvements contemplated were not completed to the satisfaction and acceptance of the Board of Public Works, and the-Board of Public Works had not accepted or approved said work; that it had refused to 'provide for the issuance of tax bills, “and that said refusal and said exercise of discretion were not capricious nor arbitrary ; nor without just cause or reason; nor by reason of ignorance or misapprehension of facts, or the result of prejudice, oppression or fraud, or aught else, except the result of the honest judgment of said Board of Public Works, and the honest exercise of the discretion provided and enjoined by the charter of the City of St. Joseph. . . . That the refusal . . . was made upon full information of the refusal, failure and neglect of the contractors to perform said work.”

No reply to this return is set out in the record and no note appears in the record of a reply having been filed, although the judgment recites that, on the bearing of the case, the return “and the traverse of said relator to said return” were submitted to the court for trial, together with the evidence. On the trial the contract was introduced, but the portions appearing in the record do not contain the paragraph set out in the return and above quoted. The 'only portions of the contract copied in the record which are important for our purpose provide for the character of paving to be laid, that paving material shall consist of a base and wearing surface, the base to be of concrete of a uniform thickness of four inches, and the wearing surface tó be of uniform thickness of two inches, overlaying the base; the manner of laying the base to be by the setting up of guide - stakes.

The contract was let September 22, 1914, and the pavement laid, so far as the contractor was concerned, by November 22, 1914, and within the time provided for the completion of the contract. The issuance of tax bills was delayed on the ground that the city engineer had not had time to measure up the street. In January, 1915, Mr. Campbell, the engineer, died and Carl Hoff, assistant, succeeded him as City Engineer. Mr. Hoff delayed the tax bills and there were some minor defects, including some cracks which must be repaired before issuance of the tax bills. Hoff then, on January 14, 1915, made a written statement to the Standard Construction Company specifying the defects which must be repaired, consisting of broken places in the curbing, broken parts of the street, some cracks, and other minor imperfections. These required repairs were made in March, 1915, as soon as the weather permitted the work to be done. About that time a rather peculiar crack at one point was reported to the engineer. The pavement at that pgint was torn out and was found to be deficient in thickness. The engineer then caused test holes to he made, eighty-four in number, showing the thickness of the pavement and extending along the entire length of the street. A blueprint was prepared showing the result of these tests and the average thickness of the pavement throughout the street. This blueprint was introduced in evidence, but does not appear in the record. After the tests were made the contractor abandoned the work, and the bonding company, which furnished the bond for the contractor, undertook to meet the requirements of the city engineer, who made a written statement of what was necessary in the following words:

St. Joseph., Mo., Octobfer 11, 1915.
Memorandum
In The Matter of Kespairs to South Twelfth Street Between Hickory Street and Garfield Avenue.
The work contemplated is removing certain section of the recent pavement and renewing the same in accordance with the specifications of the original 'contract therefor.
The extent of this work is approximately as follows:
13-50ft. sections of pavement 30 ft. wide and such other repairs as the city engineer may direct. Further information may he secured from the city engineer.
C. P. H.,
CPH/JJ City Engineer.

It will be noticed that this was in October, almost a year after the contract should have been completed. Considerable testimony was offered regarding the understanding between the bonding company and the city engineer, not only as - to the amount of work to .be done, but as to the effect such work might have upon the issuance of tax bills. It appears that the thirteen sections, fifty feet each in length, which, according to the memorandum, were to be torn up and replaced, were not contiguous, but were at different places along the street. It miay be noted here that while the original work was in progress tlie city engineer, at all times, had an inspector overseeing the work to see that it was up to specifications as it progressed. In conversations of Mr. Stringfellow, agent of the bonding company, with the engineer and the Board of Public Works, it seemed to develop that at least one of the inspectors was not careful and did not require the work to come up to specifications. It was claimed by appellants that an understanding was reached to the effect that- the bonding company would complete the work as required by the engineer, the engineer would report to the board that the work contemplated was completed and the contract substantially complied with within the time required. It appears to be admitted by the city officers that the failure to complete the work within the time required by the contractor was waived, provided the repairs should be made by the bonding company according to the requirements of the city engineer. The bonding company accordingly went to work, took up and relaid about six hundred and twenty feet of the pavement. The sections were fifty feet each in length. The relaid portion, therefore, was thirteen sections, less about thirty feet. It is not disputed that the work done by the bonding company, so far as it went, was in accordance with the specifications. The dispute as to the facts turned in the main upon two propositions: whether that part of the pavement which was not taken up and replaced was in substantial compliance with the contract; and, whether the work which the bonding company undertook to do met the requirements of the city engineer as stated in the memorandum set out above.

The evidence for the plantiff was about as follows:

John J. Werst testified that he was inspector of part of the work. He described the method of laying the pavement by setting six-inch stakes on the subgrade and the filling in of the concrete base to four inches and the wearing" surface the remaining two inches. It seems that the wearing surface of two inches was also measured by moving a two inch strip along as the concrete was laid. He testified that the part of the work which he inspected was in accordance with the contract; he was present as inspector during the laying of about three hundred and fifty feet. Werst -assisted in making the test holes. He said some places were short in topping and the pavement was four inches .or four and a fourth inches in thickness. His tests were made under the direction of the city engineer.

John Rohloff was inspector of a great part of the work as it was laid. He testified that he was present during the laying of the' work which he was there to oversee, he measured the six-inch stakes to see that they were of the required height, and said the pavement was laid of the required thickness while he was overseeing it.

J. C. Skillbred, who was overseeing the work for the bonding company, said that the work which he did was according to the specifications and that he couldn’t see any difference between it and the remaining part of the street. When asked to account for the thinness of the wearing surface in a certain part of the street he explained that, when laid wet, cement is inclined to “creep” towards the gutter, on account of the slope from the centre of the street. That fact was sworn to by some witnesses for the city, although they testified also that there was not enough concrete on the street to make the wearing surface, because it was not over the required thickness even at the gutter after it had “crept.” Skillbred said that' on some portions of the street which he-inspected there was no topping; that appears to be the portions where he relaid it.

Mr. Stringfellow, agent of the bonding company, testified that in reconstructing portions of the street he had eonrplied with the engineer’s requirements as stated in his memorandum.

Mr. Dolman, the assignee of the contractor, stated that the original contractor was paid eleven thousand and two hundred dollars by him; that the express of the repairs made by the bonding company was about four thousand dollars. Mr. Stringfellow put the cost of the repair work at about three thousand dollars. Dolman" gave it as his opinion that the refusal to issue the tax bills was on account of politics. The spring campaign was coming, which circumstance, he thought, determined the action of the city authorities, who refused to issue the tax bills without reasonable excuse.

The defendants then introduced W. D. Morrison, John Brindel, Charles E. Dickey and John B. Dewey, present and former members of the Board of Public Works. They all swore that they had refused to sign the tax bills because the work was not substantially up to specifications; that they went to the street with Mr. Stringfellow and measured it; that the pavement ran as thin as four and a-half inches, although'it' was six inches in places; that they would have issued the tax bills had the engineer reported that the work was substantially up to specifications.

In regard to the reconstruction or repair work done by the bonding company, they all declared the requirements of the city engineer in that respect were never complied with. The pavement not replaced was from an inch to two and a half inches thinner in places than it should have been. They measured the blocks which were torn out in the repair work and found many of them only four or four and a half inches thick, and in some places the topping was almost entirely missing. Where the replacement stopped the original was as defective as that which was taken up. They all stated there was no substantial compliance; that if in their judgment the job had been within eighty-five or ninety per cent of specifications they would have issued the tax bills, but it was much less than that. Mir. Dewey said he walked the full length of the street and in places there was almost an entire absence of topping; he took measurements of that part which was not torn up and replaced.

Mr. Harry Miller said that he was an inspector for the city; he took measurements and made a record of the thickness of the pavement of the part that was torn up. He said the topping was more toward the gutter and very little left on the crown in that part of the street which was not torn up.

The City Engineer, Carl P. Hoff, stated that when the pavement was first laid he found serious deficiencies, made the tests as mentioned in the evidence of the other witnesses, and on conference with the bonding company prepared the memorandum above set ont. He said there was no difference between the thickness of the pavement where the replacement was discontinued and that which was taken out. The attention of the bonding company was called to the fact that the work should not stop where they stopped it; there were places further on where the topping was deficient. He pronounced the street a poor street, and said.it did not compare with other concrete streets in the city. • The items mentioned in his memorandum were only an approximation of what was required; it was impossible to tell at that time exactly what would be necessary to' put the street in a condition of substantial compliance with the contract, and for that reason he reserved in the statement the right to direct other repairs not specified.

I. The rule is general that a litigant asking relief by mandamus must prove that he has a clear, unequivocal, specific right to have performed the thing. demanded. [State ex rel. v. Stone, 269 Mo. l. c. 342.] The remedy will not lie if the right is doubtful. [State ex inf. v. Kansas City Gas Co., 254 Mo. l. c. 5.32.] A ministerial duty which may be enforced by mandamus is one in respect to which nothing is left to discretion. [State ex rel. v. Hudson, 226 Mo. 239, l. c. 2.65.] For instance, it will not lie to compel a county court to select, as a depository for the county funds, a bank which bids the highest rate of interest, although the statute provides that the depository shall be one which offers to pay the largest rate of interest, there being another provision that the county court shall have the right to reject any and all bids. [Reagan v. County Court, 226 Mo. 79, l. c. 88.] Where a ministerial body is entrusted with the exercise of a function which requires the ascertainment of' certain facts before performing a specific duty, mandamus will not lie to compel the performance. This is particularly applied to county courts and municipal autliorities in the issuance of dramshop licenses, where they have to ascertain whether the petition for the license contains the names of the necessary number of persons qualified to sign, or whether the applicant is of the' character which entitles him to. a license. [Weber v. Lane, 99 Mo. App. 69, l. c. 81; State ex rel. v. Thornhill, 174 Mo. App. 474-5.] It will not lie to compel a county court to issue a warrant for a debt against the county before that court had.passed upon it and allowed it. [State ex rel. Hutton v. Scott Countv Court, 197 S. W. 347-8; State ex rel. Forgrave v. Hill, 198 S. W. 844, l. c. 846,]

It was held that mandamus would not lie directing the Board of Public Works of the City of St. Joseph to let a contract to the lowest bidder where the charter provided that such contract should be let to the lowest bidder, but that the board had power to reject any and all bids. There was an element of discretion which prevented the exercise of the writ of mandamus to compel action. [State ex rel. v. Meier, 142 Mo. App. 309, l. c. 310.]

II. Section 8841, Revised Statutes 1909, relating to cities of the first class, requires the board of public works to provide for the issuance of tax bills against “property properly chargeable therewith.” How was it to be determined what property was properly chargeable with tax bills? Section 8849, Revised Statutes 1909, relating to contracts with cities of the first class provides that “in letting contracts the board [of public works] shall reserve the right to decide all questions as to the proper performance of the work and the meaning of contracts, and in case of improper construction, may suspend the work and relet the same, or order the entire reconstruction of such work, ... as may be deemed best by the board.”

The allegation of the return quoting a provision of the contract which said the 'contractor should -not -be entitled' to receive payment for the work until it was completed to the satisfaction and acceptance of the Board of Public Works, does not appear to be denied anywhere. The case is presented as if the stipulation were in the contract.

Thus the statute and the contract invested the Board of Public Works with very full and ample authority, not only to determine the character of improvements to be made, but to determine when and to what extent a contract for such improvements has been complied with. ' Necessarily it must make such determination by an ascertainment of the facts. A stipulation-of the kind set out is bindings and conclusive upon the parties, in the absence of fraud, mistake, oversight or misconception of the facts. [McCormick v. City of St. Louis, 166 Mo. 315, l. c. 329; McGregor v. Construction Co., 188 Mo. 611, l. c. 623; Scott v. Realty Co., 241 Mo. 112, l. c. 127; Williams v. Santa Fe Railway Co., 153 Mo. 487, l. c. 499; Cann v. Rector, Wardens, etc., Ill Mo. App. 104, l. c. 191; Whiteley v. McLaughlin, 183 Mo. 160, l. c. 163.] If it were conceded, or proven beyond dispute, that certain specific work was accomplished amounting to a substantial compliance with the contract, or that such was the only proper inference to be drawn from the facts proven, then the board would have no discretion and could be compelled by mandamus to issue the tax bills. But the facts were in dispute.

The report of the city engineer showing the result of his tests was introduced in evidence without objection, and the respondent complains of the absence of this particular bit of evidence and asks this court to infer that it would show a condition favorable to the claims of the relators. Whatever may be said of its force as tending to establish the facts contended for by the respondent it certainly was not conclusive of those facts. It was competent to prove by witnesses who knew the facts, just the condition of the streets. The engineer himself swore to the imperfect compliance with the contract from his examination of the entire street. Other witnesses, including four present and former members of tbe Board of Public Works, added their testimony to the same effect.. They all testified with circumstantiality and from personal inspection. There was a quantity of substantial evidence showing that the topping was almost entirely absent, or had slipped towards the gutter until it had achieved a vanishing point at the crown of the street, where the macadam in the concrete base was exposed to view; that there were numerous cracks in the pavem'ent, many more than ordinarily appear in a well constructed concrete pavement.

It was not the duty of the circuit court to weigh such evidence. It was the function of the Board of Public Works to examine it and determine whether in fact the contract was substantially complied with. It was aptly said in the case of State ex rel. v. Thornhill, by Judge Trimble of the Kansas City Court of Appeals, 174 Mo. App. l. c. 475:

“If the circuit court in a mandamus case can hear the evidence and decide the questions involved in the granting of a saloon license and order the county court to issue the license, then it is the circuit court, and not the county court, that is granting it.”

So here, if the circuit court should hear the evidence and decide whether the pavement of the street came up to a substantial compliance with the contract, then it assumes the exercise of the function which the law imposes upon the Board of Public Works.

The evidence was properly heard and must he considered here, for the purpose only of determining whether the city officials acted arbitrarily in defiance of proven facts. That was an issue tendered and accepted in the pleadings.

A line of cases is cited by respondent,' showing that mandamus has -been allowed by a’ superior court directing an inferior court to assume jurisdiction and to try a case where the inferior court had determined as a preliminary matter that it had no jurisdiction and refused to proceed further. [State ex rel. v. Homer, 249 Mo. 58; State ex rel, Fleming v. Shackelford, 263 Mo. l. c. 60; State ex rel. Bayha v. Philips, 97 Mo. 331; State ex rel. Sanders v. Wear, 37 Mo. App. 325.] We cannot find in any of them that the determination of jurisdiction turned upon the ascertainment of facts by the inferior court; the facts were undisputed and it was a question of law as to whether it had jurisdiction. The superior court settled the question of law and compelled the exercise of jurisdiction by mandamus. [State ex rel. v. Homer, supra, l. c. 67.] Such cases are not exceptions to the general rule stated above.

III. The alternative writ and the petition allege that the action of the board in refusing to issue tax bills was arbitrary and without just cause, an allegation specifically denied in the return. That allegation is in reliance upon an exception to the general rule stated above, an exception which allows the remedy by mandamus where the discretion of administrative officers is abused, where they act in a capricious and arbitrary manner. The discretion of such officers must be exercised impartially and in good faith. [State ex rel. v. Dreyer, 183 Mo. App. l. c. 469-70; State ex rel. Hathaway v. State Board of Health, 193 Mo. 22, l. c. 29; State ex rel. v. Public Schools, 134 Mo. 296, l. c. 311.] In State ex rel. McCleary v. Adcock et al., 206 Mo. 550, l. c. 556; this court held the writ would lie, “If the board of health, against all the rules of evidence and against the great weight of the evidence, as evinced by this record, arbitrarily refused to grant the license.”

If the Board of Public Works exercised its discretion capriciously and without reason, then the court should interfere by mandamus to compel proper action in the premises; but there is nothing in the record to indicate an arbitrary or capricious action. True,, one or two witnesses testified that in their opinion the board was influenced by political considerations, but no fact was sworn to which indicated improper influence. On the contrary, it was stated by witnesses for respondents that the members of the board and the engineer were honest and not improperly influenced, but were performing their duty according to their best judgment of what was required of them.

It is argued by respondent, that a finding of facts by a court in a mandamus proceeding is binding upon this court as is such finding in any other kind of a ease. That is true enough where the facts are such as the circuit court has authority to find. It cannot be inferred from the rule that the trial court is authorized to take 'evidence and find the facts which must be determined on an investigation by the body whose act is sought to be compelled. The cases cited are where the finding of the trial court turned upon the facts showing that the body, against whom the writ was directed, acted capriciously and in gross absence of discretionary powers. In this case there was no specific finding that the board acted capriciously or arbitrarily and no evidence to that effect. [State ex rel. v. Dreyer, 183 Mo. App. 463, l. c. 481; State ex rel. v. Bourne, 151 Mo. App. 104, l. c. 125.] The trial court especially found from the evidence that there was a substantial compliance, and granted the writ on that theory, not on the theory that the board acted arbitrarily.

It is possible, as asserted, that the assignee of the contractor in this case and the' bonding company will suffer a hardship* by a denial of the relief sought. That is unfortunate and it is possibly unfortunate that the legislature has made no provision for a quantum meruit recovery in a case, of this kind except in a suit to enforce the lien of tax bills. But where the law is so clear and the function of the court in such case is so well defined, where the limited and cautious exercise of this extraordinary remedy is so repeatedly ruled as a fixed principle in our jurisprudence, no considerations of the kind mentioned should influence the court in extending the operation of the writ to the dangerous and experimental stage demanded in this proceeding. .

The judgment is reversed.

Bailey and Mosley, GG., concur.

PER CURIAM: — -The foregoing opinion by White, C., is adopted as tbe opinion of the court.

All of the judges concur.

ON MOTION FOB REHEARING.

PER CURIAM:

On consideration of the motion for rehearing filed herein, it is decided that the cause should be remanded in order that the trial court may ascertain whether the construction of curbing and sidewalk is in accordance with the contract, and can be ‘separated from the paving in ascertaining the price to be’ paid for the sarnie and assessed against the property liable fbr such payment.

It is therefore ordered that the opinion be modified accordingly and the judgment be reversed and the cause remanded, and the motion for rehearing is overruled.


author: WALKEN, C. J.

text:
    THE STATE ex rel. BUCHANAN COUNTY v. JOHN F. IMEL and NATIONAL SECURITY COMPANY, Appellants.
    Division Two,
    March 13, 1920.
    1. CONSTITUTIONAL QUESTION: Reexamination. It is the duty and within the power of courts to correct their own errors in a subsequent appeal in the same case, or in another involving the same question; hut unless it appears to the court that its previous ruling sustaining the validity of a statute is radically . wrong, the same constitutional question is no longer open for consideration.
    2. -: Compensation of Probate. Judge: Increase. The compensation of probate ■ judges is within the purview of the constitutional inhibition against an increase in an officer’s compensation during his term.
    3. -: -: -: Statute: Effect of Proviso. While the effect of the proviso added in 1895 to present Section 10695, relating to the compensation of probate judges, was to restrict the preceding portion of .the section, it became upon its adoption as much a substantive and operative portion of the original section as if incorporated therein when the latter was first enacted, and the consitutional inhibition against an increase in an officer's compensation during his term likewise applied to it.
    4. —--; -; paid by Fees: Inhibition Against Increase. The constitutional inhibition against an increase in an officer’s compensation during his term, is. applicable to an office to which no salary is attached. The test of the application of the inhibition is not the manner in which the officer is paid, but2 the nature of his official tenure and the character of the duties performed for which the fees are charged.
    5. -: -: Fees in Excess of Designated Amount. Nor is the inhibition less applicable because it does not apply until the fees collected exceed a designated amount, if the statute is, general and includes within its provision a 'dearly defined class of officers.
    6. COMPENSATION OF PROBATE JUDGE: Equal to Circuit Judge’s Salary. The statute (Sec. 10695, R. S. 1909) declaring that whenever the amount of fees collected for any one calendar year by or for any»probate judge in any county shall exceed “a. sum equal to the annual compensation provided by law for a judge of the circuit court having jurisdiction in said county,” the excess less ten per cent, shall be paid into the county treasury, ■ by using the words “compensation provided by law for a judge of the circuit court” meant the circuit judge’s salary for judicial services, and did not mean to include emoluments received by the circuit judge for other services, such as his services as jury commissioner.
    7. STATUTE: Interpretation: Context: Purpose. Words in a statute take color and force from their setting, and in their application their context and the general puruose of incorporating them in the statute should be considered.
    Appeal from Buchanan Circuit Court. — IIon. Charles H. Mayer, Judge.
    Affirmed.

      Vmton Pike, Charles F. Strop and George W. Fastin for appellants; Henry Lamm, of counsel, amicus curiae.

    (1) We ask the court to again consider the question of the validity of Section 106Í95. The decision must turn mainly on whether or not a judge of prohate is a ' state or comity officer. It was held in Henderson v. Ivoenig, 168 Mo. 357, that he is a county officer, whose fees must be provided and regulated by a uniform law. Constitution, Art. 9, sec. 12. Section 10696', was upheld in the case in 242 Mb'. 293, by a divided court, and followed in the same case on second appeal, and on the latter appeal the court was also divided. (2) The compensation • of a circuit judge for the same year measures the compensation of the judge of probate. Not a stated salary of a circuit judge, but the sum total of all the emoluments he secures by virtue of his being a circuit judge, which constitute his compensation. Cunningham v. Current R., etc., 165 Mo. 2(70; State ex rel. v. Walker, 97 Mo. 164; S. L. Obispo v. Felts, 104 Cal. 66; 23 Cyc. 11, 52'6, 530,; Benford v. Gibson, 15 Ala. 571; Throop on Pub. Off. (Ed. 1892), 466; Thompson v. Phillips, 12- Ohio’ St. 617; Milwaukee Co. v. Hochett, 21 Wis. 613; Kilgore v. People, 76 111. 552; Apple v. Crawford Co., 105 Pa. St. 303;’ 12 C. J. 231, note 46 C.; 29 Cyc. 1428; Hoyt v. United States, 10 Plow. 133; People ex rel. v. Wemple, 115 N. Y. 309'; Throop on Pub. Off. sec. 462; State v. Cook, 37 Tex. 205; Bates v. St. Louis, 153 Mr. 18; State v. Aimick, 247 Mo. 294; State v. McKay, 249 Mo. 2,61. (3) “Emoluments” or “compensation” embraces all receipts for official services, such as fees, per Mem, allowances, and allowances to sheriffs for board of prisoners. 29 Cyc. 1428' and notes; Broader Than Salary. Kilgore v. People, 76 111., 552; Apple v. Crawford C'o., 105 Pa. St. 242. The Legislature in using the word “compensation” intended to embrace all the terms implied in common use. 36 Cyc. 1106-7; Armstrong v. Modern Brotherhood of America, 132 Mo. App. 178. It means the income of the office. Scearcv v. Grow, 15 Colo. 123. ' '

      Stephen K. Oioen, Phil A, Slattery and Ilomér C. King for respondent.

      (1) The court is again asked to consider the question of the constitutionality of Section 10695, and are asked to overrule and set aside the opinion in the former Imel case, 242 Mo. 293; but appellants advance no reason except that that decision was rendered by a divided court. Sec. 10695, E. S. 1909, is constitutional. State ex rel. v.^Imel, 242 Mo. 293; Green County v. Lydy, 263 Mo.* 77. (2) Appellant is estopped from raising, the question of the constitutionality of Section 10695. Section 10695, under which the appellant collected the money in controversy, was in force when he accepted the office of probate judge of Buchanan Coun ty. By voluntarily accepting that office and collecting the fees which the law prescribed for his' services, he waived the right to assail the constitutionality of that law. State ex rel. v. Imfel, 242 Mo. 293; Greene County v. Lydy, 263 Mo. 77. (3) Appellant is not entitled to the fifteen hundred dollars, paid to a circuit judge as compensation as jury commissioner, under the Act of 1907, page 322, and the Act of 1911, page 305, for the reason that said Act of 1907 was not passed and was not in effect at the time appellant qualified and entered upon his duties as probate judge, for his first term, and when appellant entered upon his duties of probate judge in January, 1911, there were no jury commissioners in Buchanan County, and the Act of 1911 did not go into effect until March 15, 1911. State ex rel. v. Eyan, 232 Mo. 77. (4) Appellant is not entitled to the increase in the annual compensation of the circuit judge of Buchanan county, as provided for in the Act of 1911, page 389, for the reason that before the passage and taking effect of said act he had previously qualified and entered upon his duties for a term of four years as judge of the probate court.
   WALKEN, C. J.

The appeal in this case arises out of a judgment rendered in the Circuit Court of Buchanan County against appellants and in favor of the respondent in a suit brought by the latter to recover certain fees alleged to have been retained by the appellant Intel as probate judge of that county in excess of the amounts allowed him by law during the. years of his official terms as stated in' the petition. The questions submitted for review are: is Section 10095', Revised Statutes 1909, constitutional; and what was the annual compensation of a circuit judge of that county during the years in question?

I. This is the fourth time the constitutionality of Section 10695, Revised Statutes 1900, has been assailed in this court for the same reason and by the same parties. [State ex rel. Buchanan Co. v. Imel, 242 Mo. 293; State ex rel. Greene Co. v. Lydy, 242 Mo. 316; Greene Co. v. Lydy, 263 Mo. 77.] It will be recalled that this section defines the fees that miay be charged by probate judges and the amount of samle that may be retained by them each year of their services. The power and the duty of courts to correct their own errors in a subsequent appeal of the same case, or in another involving the same question, is not to be gainsaid. [Star Bot. Co. v. Expo. Co., 240 Mo. l. c. 643; Bowles v. Troll, 262 Mo. 377; Mangold v. Bacon, 237 Mo. l. c. 536; Underwood v. Railroad, 177 S. W. 724.] Only in the exercise of this power is opportunity afforded for the correction of judicial errors, which, despite painstaking care and patient research will, on account of the fallibility of the human mind, sometimes occur. Where, as here, however, counsel for appellants insistently reiterate a single ground of invalidity, which, after repeated presentations, has failed to convincingly impress the court, the time-worn maxim embedded in the law since the time of Littleton, that “it is the concern of the public that there should be an end of litigation,” may be appropriately applied. A careful survey of the present contention as to the invalidity of the statute adds no reason not' heretofore submitted. What we held good in the beginning may therefore be held good in the end, for appellants’ contention can derive no strength from iteration in the absence of reason. The general rule to which we gave concrete application in Greene Co. v. Lydy, 268 Mo. 77, 172 S. W. 376, 1917C, Ann. Cas. 274, is applicable, that a constitutional question once decided is no longer open for consideration unless it appears to tbe court that its opinion is radically wrong. Furthermore, it never having been made to appear that this statute was clearly wrong or that there existed even grave doubts as to its validity, we decline to further discuss this question. Thus concluding, we have not deemed it necessary to advert to the doctrine of estoppel as equally applicable in the instant case as in Greene Co. v. Lydy, supra, where it was learnedly applied by Chief Justice Lamm.

In addition to the authorized publication of the Lydy case, the curious will find Justice Lamm's conclusion therein approved by many authorities compiled by the able editors of Am. & Eng. Annotated Cases, in the reprint of that case in 1917C, Ann. Cas. p. 284.

II. We come now to appellants’ second contention. Under the statute (Sec. 106-95) the annual compensation of the judge of the circuit court in the county where the appellant Imel exercised the functions of Probate judge, measures the maximum amount the latter may retain as his annual compensation out of fees collected by him during each calendar year of his term. The vexing question necessitating a construction of the statute is what is meant by the annual compensation of the judge of the circuit court. The answer thereto will enable it to be determined which of the diverse contentions of the parties is correct. Appellants contend that all emoluments received by a circuit judge during each year from whatever source, if authorized by law, are within the meaning of the statute. Respondent contends that a circuit judge’s salary for judicial services should fix the limit of appellant’s compensation.

The portions of Section 10695' pertinent to the determination of the matter at issue are in effect as follows: After providing generally that probate judges shall be allowed fees for their services as there enumerat.ed except certain fees not authorized to be charged, it is further provided “that whenever, after deducting all reasonable and necessary expenses for clerk hire, the amount of fees collected in any one calendar year by or for any one probate judge in any county in this State, during his term of office, and irrespective of the date of accrual of such fees, shall exceed a sum equal to the- annual compensation provided by law for a judge of the circuit court having jurisdiction in such county, then it shall be the duty of such probate judge .to pay such excess less ten per cent thereof, within thirty days after the expiration of such year, into the treasury of the county in which such probate judge holds office, for the benefit of the school fund of such county. ’ ’

As preliminary to the discussion of the main question it is well to ascertain if the compensation of probate judges is within the purview of the constitutional inhibition against an increas.e in an officer’s compensation during his term. If so, the rules of interpretation of other statutes of like import may with propriety be applied to assist, so far as may be, in the solution of the main question. Before the incorporation in Section 10695 of the proviso . quoted above, the inhibition only constituted a limitation upon the amount of each fee authorized to be charged. Thereafter, upon the amendment of the section in 1896 (Laws 1896-, p. 155), which included the proviso, the inhibition applied not to the. particular fees, but to the total amount of annual compensation probate judges were entitled to retain for their services.

While the effect of the proviso, undér the- general rule (Brown v. Patterson, 224 Mo. 639), was to restrict the preceding portion of the section, it became upon its adoption as much a substantive and operative portion of the original section as if incorporated therein when the latter was first enacted. The restriction simply changed the manner in which the limitation as to fees was to be determined, and fixed a basis by which the constitutional inhibition could be definitely ascertained and uniformly applied.

In addition to what we have said elsewhere as to the purpose of this constitutional inhibition (Folk v. St. Louis, 250 Mo. l. c. 134; State ex rel. Attorney General v. McGovney, 92 Mo. 428; State ex rel. v. Ranson, 73 Mo. 89) not relevant here, it is evident that it was intended to serve an additional and not unimportant purpose, viz., to so limit official salaries or fees as to enable the Legislature to provide for a system of annual compensation, uniform in amount for the same class of public officers throughout the State. As the law existed prior to 1895 this purpose was defeated so far as it pertained to the fixing of the amount of the annual compensation of probate judges. In the enactment of the amendment in that year, however, this class of officials was subjected to a like rule for the determination of their compensation as provided in statutes in regard to the limit of the compensation of other public officials.

The speciously plausible argument is made that the constitutional limitation is not applicable, because no salary is attached to the office of a probate judge and he is not compensated out of public funds regardless of the services performed. The test of the application of the inhibition is not to be determined by the manner in which an official is paid, but by the nature of his official tenure and the character of the duty he performs for which the fees are charged. If his tenure is definitely fixed by law (State ex rel. v."Gordon, 238 Mo. 168) and this duty is public in its nature and affects all citizens alike who come within the purview of the statute enjoining it, the official who performs the duty is a public officer and within the constitutional inhibition regardless of the manner in which he is compensated. Probate judges hold for prescribed terms, they perform duties enjoined by a statute which the Legislature in its wisdom has deemed necessary to the orderly conduct of affairs of the State, by providing a general method for the settlement of the estates of deceased and other persons. This statute is public in its nature, uniform in its application and the duties it enjoins are but a part of the machinery the State has adopted for the protection and distribution of the property of its citizens. Possessing these characteristics, little room is left for cogent reasoning against the conclusion that the compensation of- this class of officials cannot be exempted from the constitutional inhibition; nor is there such indefiniteness or uncertainty in -the statute as to exempt the compensation of a probate judge therefrom.

It does not militate against the correctness of this conclusion that the inhibition does not apply until the fees collected as stated exceed the amount designated. No constitutional provision is. violated in thus fixing the limit. The statute, being general, includes within its provisions a clearly defined class; it is in accord with public policy in prescribing a method by which the inhibition of the Constitution may become more uniformly applicable, and it in no wise interferes with the rights of individuals.

The constitutional restriction having been found to be applicable, when the meaning of that portion of the statute in relation to the compensation of a circuit judge has been determined, little difficulty will be encountered in ascertaining the maximum amount of annual compensation to ivhich a probate judge is entitled.

III. In construing that portion of the statute which by reference fixes the limit of the annual compensation authorized to be retained by a probate judge, we are not restricted to the meaning, however general, of the word “compensation’'’ when standing alone. Words, like things instinct with life, take color and force from their envirofiment. An attempt, therefore, to construe the word free from its setting in the phrase or sentence in which it appears or independent of the other words with which it is used would deprive the inquirer of one of the well recognized aids to interpretation and as a consequence lead to a lame conclusion as to the meaning of this portion of the statute.

To' avoid this, it is necessary to ascertain the meaning and as a consequence the application of - the connected words used in the statute, to-wit: “the annual compensation 'provided hy law for a judge of the circuit court having jurisdiction in the county” for which the prohate judge was elected. The general purpose of the incorporation of these words in the section, as we have indicated in the discussion of another phase of this case, was to establish a uniform maximum limit fertile annual compensation of probate judges. That another and a different reason prompted legislative action is not reasonably inferable, either from the words themselves, or from their context, or the entire subject-matter of the section. To effect the legislative will, therefore, it was necessary either to designate a uniform salary for all officials of this class and provide for their payment directly out of the public treasury irrespective of services rendered; or to continue the fee system of remuneration then in force, but fix a definite limit which would provide ample compensation for all official services rendered by probate judges during each year, and require the excess above that limit to be paid into the county treasury. The Legislature adopted the latter system. In addition to its bringing the annual compensation of probate judges clearly within the purview of the Constitution (Sec. 8, Aid. XIV) it apportions the burden of the payment of the compensation of this class of officers among the people of the respective counties for whom the services are rendered; and, after these officials have been paid, the maximum amount the law prescribes as a fair compensation for each year’s service, the excess is to be paid into the county treasury for the benefit of the school fund. Salutary features aside, however, as tending only to exemplify legislative wisdom, we address ourselves to the primary purpose of the statute as determinative in its last! analysis of the matter at issue.

Where a portion of a statute refers to another to define its meaning, the portion referred' to must by its terms indicate the propriety of the reference or admit of such a construction as will remove any doubt in regard thereto. The purpose of the statute (Section 10605) being, as we 'have shown, to fix a uniform limit for the'annual compensation of probate judges, the reference therein to “the annual compensation provided by law for circuit judges” as furnishing a basis for the determination of such limit would fail of its purpose unless the compensation thus referred to was intended to have a well-defined meaning, uniform in its operation upon the compensation of circuit judges having jurisdiction in counties wherein the official functions of probate judges are exercised. In short, the compensation of circuit judges referred to is that authorized to be paid to them for their judicial services in the class of counties where such services are rendered. If the compensation referred to was not intended to be thus limited then the reference would furnish no definite basis from which the compensation of the probate judges could’ be determined and the purpose of the statute would' be defeated. The very language of the statute is indicative of this meaning. The reference, it will be noted, is not to the compensation of circuit judges generally, but to that “provided by law for them.” Other compensation authorized to be paid to this class of officials is for added duties in no sense judicial, the performance of which has been imposed upon them arbitrarily by the Legislature, more as a matter of convenience than for any other apparent-reason. The statutes (Laws 1905, p. 174, and 1907, p. 322) designating certain circuit judges' as jury commissioners afford illustrations of this character of legislation. In construing them in State ex rel. Harvey v. Sheehan, 269 Mo. l. c. 429, we held that the remuneration therein provided for constituted no part of the judge’s compensation for judicial services. It must be conceded that the Sheehan, and other oases of like im'port, do not announce a rule of construction expressly determinative of the matter at issue. But Tthey do offer by analogy a strong persuasive reason in. support of the conclusion we have reached herein. In the cases cited the matter directly in issue was the limjit of the compensation of circuit judges; in the instant case 'that matter is involved only by reference andsthe language of that reference is more clearly indicative of a purpose to limit the compensation of circuit judges to judicial services than in the cases cited.

It having been determined that the constitutional restriction is applicable to the compensation of probate judges and that the latter is limited to the annual compensation of circuit judges for judicial services, the amount the appellant Imel is authorized to retain in the instant case becomes a mere matter of computation. In the ascertainment of the amount, the course pursued by the trial court was in harmony with the rules of construction indicated herein and there being, as we view the facts, substantial evidence to sustain the conclusion reached, the judgment is affirmed.

All concur.


author: WALKER, C. J.

text:
    THE STATE ex rel. BUCHANAN COUNTY v. JOHN F. IMEL, Appellant.—Two Cases.
    Division Two,
    March 13, 1920.
    For the reasons stated in State ex rel. v. Imel, ante, page 554, the judgments in these two cases are affirmed.
    Appeal from Buchanan Circuit Court.- — Ron. Charles R. Mayer, Judge.
    Affirmed.

      Vinton Pike> Charles F. Strop and George W. Fastin for appellants; Henry Lamm, of counsel, amicus curiae.

      Stephen K. Owen, Phil A: Slattery and Homer. C. King- for respondent.
   WALKER, C. J.

It has been stipulated by the parties hereto that our opinion in State ex rel. Buchanan County, Resp. v. John P. Intel and National Surety Companys, Apps.', shall control in the disposition of the instant cases, the only material difference between these two cases and the one heretofore determined be-' ing in the amounts involved and the parties appellant. In the latter case the National Surety Company joined in the appeal; in the former two John F. Imel is the sole appellant. The sarnie rules of construction being alike applicable to all of these cases, the judgments of the trial court in the cases at bar are affirmed.

All concur.