author: BLAIR, C. PER CURIAM.

text:
    Ex parte A. N. WELBORN, Petitioner, v. R. L. FAULCONER.
    Division Two,
    November 14, 1911.
    1. DEPOSITIONS: in Criminal Cases: Sec. 5173, R. S. 1909: Commission. The right to take depositions in criminal cases is statutory, and the statute requires no affidavit or written application. Under See. 5173, R. S. 1909, the defendant may have witnesses examined, conditionally, in his behalf exactly as in civil cases, save that a commission niust issue. The commission issues on demand as a matter of right without any preliminary showing; the sole prerequisite to its issue is that defendant desires one and asks for it. Not the taking but the use of depositions taken under Sec. 5173, R. S. 1909, is limited; and the method of taking the depositions authorized by Secs. 5171 and 5172, is entirely distinct from that used in this case.
    2. -: -: -: -: Direction to Notary. The commission to take depositions in this ease is said to be unexceptionable in form, and the objection that it was not directed to the notary by name must be overruled.

      3. -: -: -: Witnesses on Behalf of Defendant: Advice of Counsel. The defendant and his counsel in a criminal case have the right to determine who are witnesses in defendant’s behalf. When summoned by a defendant in a criminal case, a witness cannot refuse to give his deposition, because he has .testified before the grand jury, was subpoenaed by the State, and has been advised by the prosecuting attorney .that he knows no facts which would benefit the defendant. Nor is the witness aided, when committed for contempt, by the fact that he refused to testify on the advice of counsel.
    4. -: -: -: -: Having Appeared Before Grand Jury. The taking by the defendant in a criminal proceeding of the deposition of a witness who has appeared before the grand jury and whose name is indorsed upon the indictment, cannot be forbidden upon the ground of public policy. No considerations of policy derived from the common law of criminal proceedings can be relied upon to overturn statutes, the purpose of which was to supplant that policy with another.
    5. -: -: -: -: Oath Before Grand Jury. A witness is not to be excused from giving his deposition when summoned by the defendant in a criminal proceeding, on the ground that he has been a witness in the same ease before the grand jury and has been sworn not to disclose any fact concerning which he “shall here testify, unless lawfully required to testify in relation thereto.” (R. S. 1909, sec. 5070.) If the deposition is being lawfully taken the deponent is “lawfully required to testify.”
    6. -: -: -: -: Good Faith of Defendant: Habeas Corpus. Since the petitioner for this writ of habeas corpus refused, when required to give his deposition at the summons of the defendant in a criminal proceeding, either to be sworn or to testify at all, the record does not present to the Supreme Court any question as to the said defendant’s good faith in taking the deposition..
    7. CONTEMPT: Order of Commencement: Habeas Corpus. In this application for a writ of habeas corpus, seeking the discharge of the petitioner from imprisonment for contempt in refusing to give his deposition before a notary, the record of the notary sets forth all the facts constituting the contempt, -and shows an order and “judgment” that petitioner be committed for the doing of the things which constituted it. The fact that the word “contempt” is not used in the order is no such irregularity as to render the order and commitment void.
    8. DEPOSITIONS: In Criminal Cases: Extent of Examination of Witnesses: Policy of Statute. The Legislature having specifically authorized the taking as in civil eases of the deposition of any
      ■witness by a defendant in a criminal case, the extent to which the examination may go is the same as in the taking of depositions in a civil case. With the policy of the statutes on this subject the courts have nothing to do.
    Habeas Corpus.
    Petitionee eemanded.

      Walter L. Chaney for petitioner.,
    (1) The commission under which the notary assumed to act was void for the reason that no showing was made to the circuit clerk by evidence, petition, application, affidavit or otherwise. R. S. 1909, secs. 5171, 5173, 6385, 6386 and 6398; 13 Cyc. 859, 860, 868, “9” (b). (2) The pretended commission under which the notary assumed to act was void on its face, as it ran to all of the judicial officers and notaries public in the State, allowing the accused to select his own judge, and there being no limitad,ion as to whom he might examine. 13 Cyc. 884, 885 and 886. (3) ' The phrase, “witnesses on his behalf,” in the statute (sec. 5173) means witnesses in his favor, and cannot be construed into meaning that the defendant may examine the State’s material witnesses by taking their depositions. Ex parte Marmaduke, 91 Mo. 237; Const. 1875, art; 3, see. 22; Const. 1865, art. 1, sec. 18; Const. 1820, art. 13, sec. 9; State v. Berkley, 92 Mo. 46. (4) When the names of witnesses are indorsed on the indictment by the grand jury, they being material witnesses on behalf of the State, their evidence becomes a state secret, and their testimony is under control of the State; and such witnesses cannot “directly or indirectly divulge or make known' to any person or persons the facts concerning which they shall have testified, unless lawfully required to testify in relation thereto.” R. S. 1909, secs. 5070, 5071, 5171 and 5173; 1 Greenleaf on Evidence, sec. 451; State v. Talbot, 73 Mo. 259; In re Green, 86 Mo. Ápp. 220; State v. Hamlin, 47 Conn. 95; Gitehell v. People, 165 111. 175; People v. Nall, 242 111. 284; People v. Thompson, 122 Mich. 411; People v. Lauder, 82 Mich. 109; People v. Hulburt, 4 Denio, 135; State v. Fassett, 16 Conn. 457; McLellan v. Richardson, 13 Me. 82; 20 Cyc. 1355, note 58. In furtherance of justice and upon grounds of public policy the law requires that proceedings before grand juries shall be regarded as privileged communications, and the secrets of the grand jury room shall not be revealed. Gitehell v. People, 146 111. 175; Commonwealth v. Mead, 12 Gray (Mass.) 167; Tindle v. Nichols, 20 Mo. 326; Beam v. Link, 27 Mo. 262; State v. Campbell 9 L. R. A. (N. S.) 542; Gitehell v. People, 146 111. 174; 1 Greenleaf on Ev. sec. 252; 9 L. R. A. (N. S.) 942. (5) Before a person can be punished for a contempt, it must appear that there has been an adjudication and conviction or judgment adjudging the party guilty of contempt. Ex parte O’Brien, 127 Mo. 477; In re Shull, 221 Mo. 623; Sherwood v. Sherwood, 32 Conn. 1; Palmer v. Palmer, 28 Fla. 295; In re Farr, 41 Kans. 276; In re Simmons, 49 Mich. 511; Ex parte Adams, 25 Miss. 883; Matter of Crosher, 11 N. Y. Supp. 504; Ex parte Kearby, 35 Tex. Crim. 634; In re Blair, 4 Wis. 522; 9 Cyc. 48, “Q,” note 61; 9 Cyc. 50, “4,” note 79.

      Jas. W. Suddath and N. M. Bradley for respondent.
   BLAIR, C.

An indictment was returned in the circuit court of Johnson county against Benjamin M. Wilkinson, one count of which charged him with obtaining money from petitioner under false pretenses, and the other charged him with stealing the same money. Petitioner was a witness before the grand jury, and Ms name was indorsed upon the indictment. Wilkinson was arrested, arraigned, and entered his plea of not gmlty.

Thereafter, on the oral application of Wilkinson’s attorney, the clerk of the court in wMch the indictment was pending issued a commission, in the usual form, to take depositions, notice was given the prosecuting attorney as required by the statute, and petitioner was duly subpoenaed to give Ms deposition in the case of State v. WilMnson before Charles W. Fulkerson, a notary public. Petitioner ignored the subpoena and was brought in by attachment, whereupon he filed a written statement of Ms reasons for refusing to reeogmze the notary’s authority, refused to be sworn and refused to answer questions put to Mm by Wilkinson’s counsel. Efforts to induce petitioner to reconsider were unavailing and he was committed for contempt. He brings tMs proceeding to obtain Ms release by writ of habeas corpus.

The statute (Sec. 2472, R. S. 1909) plainly marks the boundaries of the discussion in tMs case, viz.: “It shall be the duty of the court or magistrate forthwith to remand the party, if it shall appear that he is detained in custody . ... for any contempt, specially and plainly charged in the commitment, by some court, officer or body, having authority to commit for a contempt so charged.”

The power of a notary engaged in taking depositions to commit a -witness for contempt is not questioned, but it is contended that there whs no lawful occasion for' the exercise of that power in tMs instance.

The principal contentions are that the notary had no authority to commit petitioner because (1) the commission was void, (2) he was a witness for the State and consequently could not be a witness in defendant’s “behalf,” (3) petitioner having been before the grand jury, his name being indorsed on the indictment and he having been subpoenaed as a witness for the State on the trial, his testimony is a “state secret,” (4) to give his deposition would be violative of his oath before the grand jury, and (5) that the taking of the deposition was not in good faith.

1. The commission was not invalid because issued on an oral instead of written and verified application. The right to take depositions in criminal cases is statutory and the statute required no affidavit or written application. Since the defendant may have witnesses examined, conditionally, in his behalf exactly as in civil cases (Sec. 5173, R. S. 1909), save that a commission must issue, and since in civil cases a party to a pending suit “may obtain the deposition of any witness, to be used in such suit, conditionally,” (See. 6384, R. S. 1909), the commission under section 5173 issues on demand as a matter of right without any preliminary showing.

The deposition of any, consequently every, witness may be taken, and the sole prerequisite to the issuance of a commission under section 5173 is that defendant desires one and asks for it. An affidavit or written application setting forth such desire could serve no useful purpose. The Legislature saw no reason for it and neither do we. When it deemed them necessary, that body expressly required petitions and affidavits prehminary to the issuance of commissions (Secs. 6398, 6420), and the omission to make such requirements in section 5173 was clearly deliberate.

Decisions in cases arising in connection with the taking of depositions under statutes and rules of court in which a limitation is fixed upon the taking of the deposition are not in point. Not the taking but the use of depositions taken under section 5173 is limited, and the fallacy of the argument to the contrary, based upon the word “conditionally” in the section mentioned was long since accurately pointed out. [Ex parte Livingston, 12 Mo. App. l. c. 85; Tullis v. Stafford, 134 Ind. 258.]

The method of taking the depositions authorized by sections 5171 and 5172, Revised Statutes 1909, is entirely distinct from that employed in this case, anP the conditions imposed by those sections have nothing to do with the taking of depositions under section •'5173, as the sections themselves disclose.

It may be added that the commission was in unexceptionable form and the objection that it was not directed to the notary by name must be overruled., [Borders v. Barber, 81 Mo. l. c. 639.]

2. The statute (Sec. 5173) providing that “the defendant in any criminal cause may also have witnesses examined on his behalf, . . .” it is argued that since petitioner testified before the grand jury, was subpoenaed by the State, and had been advised by the prosecuting attorney that he knew no facts which would benefit Wilkinson, he was a witness for the State and could not be a witness in Wilkinsori’s “behalf.” This carries with it its refutation. Neither the grand jury, the witness, nor the prosecuting attorney could determine for Wilkinson who were witnesses in his behalf. He and his counsel have the right to determine that, and they did so, so far as petitioner is concerned, for all the purposes of section 5173, when they caused him to be subpoenaed to give his deposition. Further, whether petitioner had knowledge of facts which would benefit Wilkinson on the trial was a matter for the latter and his counsel to decide.

If the prosecuting attorney or the witness can, directly or indirectly, determine for Wilkinson who are witnesses “in his behalf” under the provisions of section 5173, they can perform the same function with respect to his rights to “process to compel the attendance of witnesses in‘ his behalf” (Sec. 22, art. 2, Const, of Mo.) on the trial itself.

A somewhat analogous question was decided against petitioner’s contention in State v. Krueger, 69 Mo. App. 31.

Nor can. the fact that petitioner acted on the advice of counsel aid him. That fact might mitigate punishment in case of a contempt punishable by a fine or fixed term of imprisonment, but it cannot avail to discharge a eontemnor committed for the purpose of coercing his compliance with a lawful order made by lawful authority.

3. It is earnestly insisted that considerations of public policy forbid the taking of the deposition of a witness who has appeared before the grand jury and whose name is indorsed upon the indictment. Counsel invoke the old common' law rule in support of their position.

One of the announced purposes of the common law in cloaking with secrecy the proceedings of the grand jury was the prevention of the subornation of perjury to meet the Crown’s evidence, and this is strongly urged upon our consideration. That was a part of a system which denied the defendant counsel, kept him in close confinement until the hour of trial, refused him the right to call witnesses, sent juries to jail for returning verdicts of acquittal and which, in short, was devised to convict the accused rather than to try the truth of the charge against him. In many respects, including the feature now pressed upon our attention, the rule 'in England has been changed by statutes (6 & 7 Will. IV. c. 114, s. 4; 11 & 12 Vic. c. 42; 30 & 31 Vic. c. 35), under which a criminal trial bears greater resemblance to a legal proceeding.

The present policy of English law is to be gathered from these statutes. Likewise the policy of our law is evidenced by our statutes. No considerations of policy derived from the common law can be relied upon to overturn statutes, the purpose of which was to supplant that policy with another. The enactment by the Legislature of statutes requiring the indorsement upon indictments and informations of the names of the State’s witnesses for the information of the defendants (Sees. 5097 and 5057, R. S. 1909; State v. Myers, 198 Mo. 1. e. 245), affording defendants an opportunity to hear the testimony of the State’s witnesses and to call witnesses before examining magistrates (Sees. 5026 and 5027, R. S. 1909), and according them the right to demand a prehminary examination under certain circumstances (Sec. 5056, R. S. 1909), evidences a policy materially at variance with the purpose which gave origin to the rule relied upon. Our Legislature has proceeded upon the theory that truth has nothing.to fear from light. In view of these enactments and the policy they indicate, we are unable to see how it is possible to employ the rule_ of the common law to excuse petitioner’s contumacy, provided he is not excepted from the all-embracing terms of section 5173 by. force of some other controlling statute.

4. It is urged that since petitioner testified before the grand jury he cannot give his deposition without violating the oath he took as a witness before that body. The oath administered to witnesses before grand juries (Sec. 5070, R. S. 1909) binds them, among other things, not to disclose any fact concerning which they “shall here testify, unless lawfully required to testify in-relation thereto.”

It is obvious that if there is no other legal obstacle save the clause of the oath quoted, it does not prohibit the taking of petitioner’s deposition, provided his being compelled to give his deposition is equivalent to his being “required to testify.” To “testify” is to “make a solemn declaration, verbal or written, to establish some fact.” [Case v. James, 90 Wis. 1. c. 322; O’Brien v. State, 125 Ind. 1. c. 44; Nash v. Hoxie, 59 Wis. 1. c. 388; Gannon v. Stevens, 13 Kas. 1. c. 459; State v. Robertson 26 S. C. 1. c. 120.]

Under the provisions of a statute empowering a litigant to compel his adversary “to testify in his behalf,” the Supreme Court of Connecticut, in a proceeding by writ of habeas corpus' (Buckingham v. Barnum, 30 Conn. 358), denied the existence of a “distinction between testimony given on the trial itself and testimony taken in the form of a deposition,” and affirmed a judgment remanding the petitioner who relied upon such distinction for his discharge after commitment for refusal to give his deposition.

These authorities and the ordinary and accepted meaning of the word “testify” convince us that the oath taken before the grand jury constitutes no obstacle to the taking of petitioner’s deposition. If the deposition is being lawfully, taken the deponent is lawfully required to testify, and the obligation of his oath is met even when the oath, is construed to mean all that counsel for petitioner contend it does mean.

5. It is unnecessary to discuss the cases holding that a witness cannot be committed for refusing to answer questions which themselves disclose that no answer made could possibly be relevant to any issue in the case in which the deposition is being taken. No such question is in this case. If it be true that the money Wilkinson is accused of obtaining by improper means was furnished him by petitioner and paid out by Wilkinson as agreed, for the purpose of settling a civil suit in which petitioner was defendant, that seems an important fact in Wilkinson’s defense. The questions put tended to elicit evidence on this theory. They were clearly relevant to the issue in the pending case.

Since petitioner refused to be sworn or testify at all, the record does not present any question as to Wilkinson’s good faith in taking these depositions. [In re Hammond, 83 Neb. 1. c. 644.] However, the questions put were relevant to the issue, there is no indication of a design to oppress and none of an officious effort to pry into petitioner’s private affairs not pertinent to the issues in the pending case. There was no suggestion that petitioner’s answers might incriminate him.

Except for some loose allegations in the form of conclusions, .the sole basis of the charge of bad faith,, outside the fact that the witness is among those relied on by the State, seems to be that the questions put were leading. It is urged that the effort was merely to cross-examine. No objection to the form of the questipns was made. The remedy for improper form is not by refusal to answer. If no objection is made before the notary to the form of question put, the answers could not be excluded on the trial because the questions are leading. Direct examination, as it is argued, is a condition precedent to cross-examination. It does not follow, however, that every examination in which leading questions are employed is a cross-examination in that sense. The form of the questions put cannot be relied upon as ground of discharge in a case of this kind.

For these additional reasons no question of good faith in taking petitioner’s deposition arises' on this record. It is therefore unnecessary to pass upon any such question and unnecessary to decide whether petitioner could raise any such question in this proceeding. [See Ex parte Brockman, 233 Mo. l. c. 153.]

6. The record of the notary and exhibits brought here disclose that petitioner filed a written refusal to be sworn and testify; that despite the notary’s efforts to induce him to be sworn, he refused to do so and also refused to answer the questions put to him, the relevancy of which we have elsewhere considered.

The record of the notary sets forth all the facts constituting the contempt, including the questions propounded and the refusals to answer, and shows an order and “judgment” that petitioner be committed for the doing of the things which constituted it. [In re Shull, 221 Mo. l. c. 628.]

The fact that the word “contempt” is not used in the order is of no importance. The conduct of petitioner constituted the contempt. The use of the word could not make that contempt which is not so, nor can the failure to use the word in the order devest the petitioner’s conduct of its contemptuous character. Certainly it is no such irregularity as to render the order and commitment void. [Ex parte Crenshaw, 80 Mo. l. c. 456.] The commitment is not, assailed and is in proper form.

7. The Legislature having specifically authorized the taking as in civil cases- of the deposition of any witness by a defendant in a criminal case, the extent to which the examination may go is the same as the taking of depositions in a civil case. With the policy of the statutes on this subject we have nothing to do. That is the business of the Legislature. [Tullis v. Stafford, 134 Ind. 1. c. 261.]

The petitioner is remanded.

Roy, C., concurs.

PER CURIAM.

The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Ex parte MANSELL, Petitioner, v. R. L. FAULCONER.
    Division Two,
    November 14, 1911.
    This case is decided upon the authority of the case of Ex parte Welborn, ante, p. 297, with which it is identical as to all material facts.
    Habeas Corpus.
    Petitioner remanded.

      Walter L. Chaney for petitioner.

      Jas. W. Suddath and N. M. Bradley for respondent.
   BLAIR, C.

This is a proceeding by writ of habeas corpus in which all the material facts are identical with those in the ease in which A. N. Welborn is the petitioner (Ex parte Welborn, ante, p. 297). The cases were argued- as one, and, for the reasons given in that case, the conclusion in this is that the petitioner must be remanded.

Roy, C., concurs.

PER CURIAM.

The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.


author: VAULLIANT, C. J.

text:
    THE STATE ex rel. EDMOND KOELN, Collector, Appellant, v. HARRY LESSER et al., Executors.
    In Banc,
    November 14, 1911.
    1. TAXATION: Shares of Stock In Foreign Corporation: Not Taxable. Shares of stock in a foreign corporation that owns no property in this State, held within this State by a resident of this State, cannot, under the laws of this State, be assessed for taxation against the shareholder. Such shares are not subject to taxation in this State under the laws thereof.
    2. -: Assessment: Taxation Must Be Authorized by Statute. There can be no lawful collection of a tax until there is a lawful assessment, and there can be no lawful assessment except in the manner prescribed by law and against property designated by law as taxable. No personal property is taxable unless the statutes declare it to be taxable.
    3. -: -: -: Enumeration of Property in Statute: General Term of Property: Sec. 11348. The words “all other property not above enumerated . . . and every other species of property not exempt by law from taxation,” found in the tenth division of the ten classes or enumerations of personal property in Sec. 11348, R. S. 1909, cannot be held to include everything that a person may own or have an interest in, either direct or indirect, here or elsewhere. If that were their meaning there would have been no use for any of the many enumerations in that class or the other nine. The certificates of stock in a foreign corporation, held and owned by a resident of this State, are not expressly enumerated in that section of the statute, nor are they impliedly included under the general word “property,” used as it is in connection with the many enumerations. The taxpayer is required to list any properties he may own mentioned and enumer- ■ ated in' the full list of items classified and set forth in that section, and is not required to go to other sections to ascertain what property he must list.
    4. -: -: Property: Applies to Property in State: Sec. 11519. The reasonable construction of the clause in Sec. 11539, R. S. 1909, defining the general terms “property” and “personal property,” “wherever used in this chapter,” to mean every tangible and intangible thing being the subject of ownership, whether animate or inanimate, real or personal, is that it was intended to mean all property in this State. That view is further strengthened by the fact that, in the very comprehensive enumeration of stocks, bonds and many other species of personal property, it no where says of any items mentioned that they are included whether in this State or elsewhere until the enumeration reaches .“ships, vessels or other boats,” and of them it says, whether “within the jurisdiction of this State or elsewhere.”
    5. -: -: -: -: Secs. 11334'and 11415; Levy and Assessment. The language of Sec. 11334, R. S. 1909, providing that “for the support of the government of the State, the payment of the public debt and the advancement of the public interest, taxes shall be levied on all property, real and personal, except” property exempt by the Constitution, affords no more authority for saying that taxes are to be levied against personal property outside of the State than that they are to be levied against real estate lying in other States; if it includes the one, it includes the other. The section does not levy taxes; the levying is imposed by Sec. 11415, which says that “there shall be annually levied, assessed and collected on the assessed value of all real estate and personal property subject by law to taxation in this State” certain taxes; and that means that there must be an assessment before there can be a levy; and the property to be taxed is not all the real or personal property a man may own, but all that is “subject by law to taxation in this State,” which means property that is not exempt and that is designated by statute to be assessed. Only that property is taxable which is required by law to be assessed for taxation-
    6. -: -: Sec. 11415: Property “Subject by Law to Taxation.” In none of the statutes, present or past, is there anything to indicate that the words “subject by law to taxation in this State,” as used now in Sec. 11415, were meant to include the stock of a foreign corporation which has no property in this State.
    7. -: -: Taxing Corporations. The present law does not in express terms impose a tax on the certificates of the capital stock of any corporation except banks, insurance companies, building and loan associations, and concerns owning steamboats; and there is a peculiar reason in every case why the stock instead of the property of those excepted companies should be taxed. As to all other corporations provision is made for taxing their properties, and that means properties within the State; and the special provision for taxing shares of stock in banks, insurance and steamboat companies and building and loan associations, in the light of the evident reasons therefor, and the omission to mention for taxation shares of stock in other corporations, and the inclusion of a provision for taxing their properties, show that the taxing of the shares of stock in a foreign corporation was never in the mind of the General Assembly.

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

      Edward W. Forristel and Frank H. Haskins for appellants.
    (1) The city of St. Louis had authority to assess, levy and collect' taxes on the property in question. Art. Y, sec. 1, City Charter. (2) The State of Missouri had authority to assess, levy and collect taxes on the property in question. Art. 10, Constitution. (3) The State, by statute, provided for the assessment, levying and collecting of taxes on the property in question. R. S. 1909, secs. 11334, 11348, 11357, 11387, 11519. (4) An abandonment of the soverign right to exercise the vital power of taxation can never be presumed. The intention to abandon must appear in the most clear and unequivocal terms. State ex rel. v. Johnston, 214 Mo. 662; Ry. v. Cass Co., 53 Mo. 27. (5) The situs for taxation of the shares of stock in a corporation is the residence of the owner. Ogden v. St. Joseph, 90 Mo. 529; In re Greenleaf, 184 111. 226; Danville B. & T. Co. v. Parks, 88 111. 170; Appeal Tax Ct. of Baltimore v. Gill, 50 Md. 377; Barrington v. Commissioners, 16 Pick. 572; Bacon v. Board, 85 N. W. (Mich.) 307; Dwight v. Mayor, 12 Allen, 316; Dyer v. Osborne, 11 R. I. 321; McKeen v. County of Northampton, 49 Pa. St. 519; San Francisco v. Fry, 63 Cal. 470; Holton v. Bangor, 23 Me. 264; Worth v. Commissioners, 82 N. C. 420. (6) It is not double taxation where the taxes are assessed in different jurisdictions. Judy v. Beckwith, 15 L. R. A. (N. S.), 142; In re Greenleaf, 184 111. 226. (7) The tangible property of a corporation and its shares of stock are' separate.and distinct kinds of property under different ownership and the taxation of both is neither double nor unconstitutional. Ogden v. St. Joseph, 90 Mo. 527; Danville B. & T. Co. v. Parks, 88 111. 170; Appeal Tax Ct. of Baltimore v. Gill, 50 Md. 377; Barrington v. Commissioners, 16 Pick. 572; Dwight v. Mayor,12 Allen, 316; Dyer v. Osborne, 11 R. I. 321; McKeen v. County of Northampton, 49 Pa. St. 519; San Erancisco v. Ery, 53 Cal. 470; Holton v. Bangor, .23 Me. 264; Worth v. Commissioners, 82 N. C. 420; Shelby County v. Union & Planters Bank, 161 U. S. 149; In re Greenleaf, 184 111. 226. (8) The taxation of the tangible property and the shares of stock of a corporation is not invalid even though both be taxed by the same State. Sturges v. Carter, 114 U. S. 521; Lee v. Sturges, 2 L. R. A. (Ohio) 556.

      Lewis & Bice and McDonald & Taylor for respondents; Henry T. Ferriss and Joseph H. Zumbalen of counsel.
    (1) Property within the city of Saint Louis which is subject to taxation for state purposes, is the only property subject to taxation for municipal purposes. Art. Y, sec. 1, City Charter. (2) A valid assessment is an essential prerequisite to the lawful exercise of the power of taxation. The only method of assessment under the laws of Missouri of the property of individuals is fully set forth in chap. 117, art. 2, R. S. 1909. If this chapter and article do not provide for the assessment of shares of stock of foreign corporations, then they are not taxable under the laws of this State. Cooley on Taxation (3 Ed.), 644; Abbott v. Lindenbower, 42 Mo. 162; Yalle v. Ziegler, 84 Mo. 214; State ex rel. v. Railroad, 114 Mo. 1; Kansas City v. Building & Loan Assn., 145 Mo. 50; St. Louis v. Wenneker, 145 Mo. 238; State ex rel. v. Cunningham, 153 Mo. 642. (3) Sec. 11348, R. S. 1909, contains the enumeration and a list of the property, the value of which is to be assessed annually for the purpose of taxation. The tenth subdivision of this section, upon which appellant relies, cannot be construed to include shares of stock of foreign corporations. (4) The history of the revenue laws of Missouri discloses a clear intention of the Legislature to omit from the subjects of taxation in Missouri the shares of stock of foreign and domestic corporations (except in specific eases such as banks, etc.). State ex rel. v. Railroad Co., 77 Mo. 203; Laws, 1857, p. 75; Laws, 1866, p. 124; Laws, 1871, p. 80; Laws, 1877, p. 376; secs. 11348, 11357, 11358, R. S. 1909. (5) There is no distinction between the taxation of shares of stock, or of the property, of foreign and domestic corporations in the laws of Missouri. The shares of stock of domestic corporations are not subject to taxation, and it necessarily follows that the shares of-stock of foreign corporations are not subject to taxation under the law as it stands to-day and has stood since 1872. Yalle v. Ziegler, 84 Mo. 214; State ex rel. v. Railroad, 77 Mo. 202; See., 11357, R. S. 1909. (6) The shares of stock of certain corporations are still taxed, the law relative thereto remaining practically the same as it was prior to 1872. These provisions of the law clearly limit this character of taxation to the property described in the several statutes and by implication eliminates those shares of stock not so described. Expressio unius exclusio est alterius. If it had been the intention of the Legislature to continue after 1872 the taxation of shares of stock of other corporations, proper provisions would have been made for their assessment. State ex rel. v. Railroad, 77 Mo. 202; Secs. 11,348, 11,357, 11,358, R. S. 1909. (7) Double taxation is not favored in Missouri or elsewhere. A tax upon property of corporations and upon shares of stock, whether the corporation be foreign or domestic, is double taxation, and the intent to impose such taxes will not be imputed to the Legislature unless clearly declared in the statute. There is no such declaration in the laws of Missouri. Railroad v: Shacklett, 30 Mo. 550; Scotland County v. Railroad, 65 Mo. 123; State ex rel. v. Howard County, 69 Mo. 454; State ex rel. v. Railroad, 77 Mo. 202; Valle v. Ziegler, 84 Mo. 214; Strok v. Detroit, 131 Mick. 109. (8) The maxim, mobilia sequuniur personam, does not apply in Missouri unless so declared by statute, ‘and therefore, the words “all other property” and “every other species of property” only refer to property actually within the jurisdiction of Missouri, or constructively brought within the jurisdiction by a specific legislation enactment. Any other construction would include every species of tangible property beyond the boundaries of the State which belongs to the residents of the State. St. Louis v. Wiggins Perry Co., 40 Mo. 589; State ex rel. v. St. Louis Co. Ct., 47 Mo. 594; School District v. Bowman, 178 Mo. 654; Plattsburg v. Clay, 67 Mo. App. 497; State ex rel. v. Howard County, 69 Mo. 454; Valle v. Ziegler, 84 Mo. 218; Corn v. Cameron, 19 Mo. App. 573; People ex rel. v. Cunningham, 4 Hun, 595; Hoyt v. Commissioners, 23 N. Y. 224; Secs. 11348, 11337, R. S. 1909. (9) The situs of the shares of stock of a corporation is the residence of the corporation, not that of the owner. A tax upon the shares of stock of a foreign corporation is a tax upon property outside of the State, and, therefore, to be subjected to taxation, requires a specific legislative enactment. In all the States where shares of stock are taxed, they are mentioned in the statutes. The laws of Missouri contain no such provisions. Richardson v. Busch, 198 Mo. 174; Armour Bros. v. Bank, 113 Mo. 13'; Jellenik v. Huron Copper Co., 177 U. S. 1; Railroad v. Shacklett, 30 Mo. 550; Caffery v. Coal & Mining Co., 95 Mo. App. 187; School District v. Bowman, 178 Mo. 654; Hoyt v. Commissioners, 423 N. Y. 224; People v. Commissioners, 4 Hun, 595; Cook on Corporations, sec. 485; Thompson on Corporations, sec. 2348. (10) All tax laws are in invitum and must be strictly construed. The statutes of Missouri cannot be construed to include shares of stock without violating this- cardinal rule of interpretation applicable to all tax laws. State ex rel. v. Carleton, 224 Mo. 493; Corn v. City of Cameron, 19 Mo. App. 573; sec. 11348, R. S. 1909; Valle v. Ziegler, 84 Mo. 214. (11) The taxation of the shares of stock of a foreign corporation would be in violation* of the Constitution of Missouri, which guarantees uniformity of taxation. Constitution, art. 10, secs. 3 and 4. (12) The taxation in Missouri of shares of stock in a foreign corporation would be in violation of the XIV Amendment of the Constitution of the United States, in that it would be the taking of property without due process of law. Union Transit Co. v. Kentucky, 199 U. S. 194; Sellinger v. Kentucky, 213 U. S. 200; Louisville Perry Co. v. Kentucky, 188 U. S. 396; Telegraph Co. v. Kansas, 216 U. S. 1; Pullman Co. v. Kansas, 216 U. S. 56; Ludwig v. Telegraph Co., 216 U. S. 149.
   VAULLIANT, C. J.

Appellant, as revenue collector of the city of St. Louis, sued respondents to recover the amount of certain bills for taxes assessed against them as executors of the will of Julius Lesser, deceased.

The -petition alleges that defendants were the owners and had charge and management of “taxable personal property in the city of St. Louis of the aggregate value of $89,300, on which taxes had been regularly assessed and the tax bills placed in the hands of the plaintiff as collector, who had used all lawful means to collect, but was unable to do so,” etc. The amount of the tax bills was $1982.46, for which judgment with interest and costs was asked.

The defendants answered showing that the alleged “taxable personal property in the city of St. Louis” consisted of shares of stock in foreign corporations, all of which have their assets in other States and pay taxes thereon in such States. The ownership of the shares of stock by defendants in St. Lords is admitted and the regularity of the steps taken in making the assessment and the issuance of the tax bills is not challenged. The position of the defendants is that the revenue statutes of this State do not subject to taxation shares of stock held by a resident in this State in foreign corporations whose property is all beyond our borders, and that a levy of such taxation would be unconstitutional. There is no dispute as to the facts; the interests sought to be taxed are as stated in the answer. The judgment' of the circuit court was in favor of the defendants and the collector appealed.

We do not understand appellant as claiming that-there is any statute which in express terms subjects shares of stock in all corporations in general, or in foreign corporations in particular, to taxation. But his contention is that shares of stock are personal property and are comprehended in the term “property” as used in the last line of section 11384, Revised ■Statutes 1909, and he also relies on the definitions of the terms “property” and “personal property” given in section 11519, Revised Statutes 1909. Tracing-the history of our revenue laws through the cases that have come to this court one will see that there have been many disputes between the assessor and collector of taxes on the one hand and corporations and the holder of shares of stock on the other, concerning the meaning of our revenue statutes in relation to the taxing of shares of stock and the property of corporations; yet, although the statutes relied on by appellant are substantially now as they have been for thirty years or more, this ease affords' the first instance in which it has been claimed that those statutes are to be so interpreted as to mean that shares of stock held by a resident in this State in foreign corporations that own no property here are to be assessed for taxation against the shareholder. If such were the plain meaning of the statutes the fact that they had not been enforced in the past would not justify their non-enforcement now, but if we have to resort to artificial reasoning to find such a meaning in the statutes the fact that they have never been so interpreted before is worthy to be considered. The sovereign power of the State to require its citizens to pay taxes on all their personal property, or on what they own representing their interests in personal property, within or without the State, may, for the purposes of this case, be conceded. But conceding that the State has the power to tax such interests, it does not follow that such interests are taxed unless the law so declares. It is not left to the tax assessor or tax collector to say what property or what interests in property are to be taxed. Under our system of taxation there can be no lawful collection of a tax until there is a lawful assessment and there can be no lawful assessment except in the manner prescribed by law and of property designated by law for that purpose. [Abbott v. Lindenbower, 42 Mo. 162; Valle v. Ziegler, 84 Mo. 214; State ex rel. v. Railroad, 114 Mo. 1; Kansas City v. Building Association, 145 Mo. 50; St. Louis v. Wenneker, 145 Mo. 230; State ex rel. v. Cunningham, 153 Mo. 642; State ex rel. v. Alt., 224 Mo. 493.]

Section 11348 requires the assessor to furnish the person to be assessed a printed or written blank, prepared for that purpose, containing a list of all the kinds of personal property that he is to return for taxation. The statute has carefully enumerated all things on which the tax is to be levied, and the fist is designed to be so explicit that every taxpayer may understand what is required of him. The taxpayer is required to fill out the blanks showing how much if any of each item specified he owns, and the list so made out is to be signed and sworn to by him, and if it is false he is hable to the pains and penalties of perjury. No one can read that section of the statute without being impressed with the thought that it was the purpose of the lawmaker to make the duty of the taxpayer in rendering his list for taxation so plain that one could neither honestly escape making a list of all his property called for, or be unconsciously led into making a false return and a false oath. The statute classifies the property to be listed under ten heads, of which it is not claimed that shares of stock in foreign corporations are included in the first nine, or that they are expressly included in the tenth, but the claim is that they are included under the general term “property” in the last fine. That tenth clause is as follows: “Tenth, all other property not above enumerated (except merchandise) and its value; under this head shall be included all pleasure carriages of all kinds; all shares of stock or interest held in steamboats, keel boats, wharf boats and all other vessels;-all toll bridges, all printing presses, type and machinery therewith connected, and all portable mills of every description, and all post coaches, carriages, wagons and other, vehicles used by any person in the transportation of mail (except railway carriages), all carriages, hacks, wagons, buggies and other vehicles of every kind and description kept or used by livery men; all carts, hacks, omnibuses and other vehicles used in the transportation of persons (except railway carriages), and all paintings and statuary, and every other species of property not exempt by law from taxation.”

That clause begins with the general term “all other property not above enumerated” and ends with the even more general term “every other species of property not exempt by law from taxation.” If by those two general terms the lawmaker intended to say that everything that a person might own or have any interest in, either direct or indirect, here or elsewhere, was to be listed for taxation, what was the use of specifying items either in that clause or in the preceding pine clauses? If shares of stock in a foreign corporation are “property” within the meaning of that word as there used, so are shares of stock in steamboat companies, and so are printing presses and mills and wagons and paintings and statuary, yet all those things, and more, are especially mentioned in that tenth clause, while the preceding nine other clauses are also industriously specific of items to be listed.

Section 11519, on which appellant relies to sustain his contention that shares of stock In a foreign corporation are comprehended under the general terms “property” and “personal property,” defines the term “property” “wherever used in this chapter,” to mean and include every tangible or intangible thing being the subject of ownership, whether animate or inanimate, real or personal. If the General Assembly had intended by that definition to say that the taxpayer should fist for' taxation, not only his property in this State, including the items specified in section 11348, but also everything else on the face of the earth in which he had any interest, either within or without the State, it would require him to fist not only the personal property, but also the real estate outside the State, which he might own or have an interest in. The reasonable construction of that clause of the statute is that it was intended to mean property in this State. That intention also appears in the definition in that section given the term “personal property.” The definition is very comprehensive, and specifies stocks and bonds and many other things tangible and intangible, but it nowhere says of any of the items mentioned that they are included whether in this State or elsewhere, until it comes to “ships, vessels or other boats,” and of them it says, whether “within the jurisdiction of this State or elsewhere.” If it was intended to mean that all the personal property enumerated or interest therein, here or elsewhere, was included, why did it specify boats here or elsewhere? The distinction in this particular drawn between steamboats and other properties shows that the Legislature intended, except as to steamboats, etc., to include only property or interests within this State.

Appellant refers also to section 11334, Revised Statutes 1909: “For the support of the government of the State, the payment of the public debt, and the advancement of the public interest, taxes shall be levied on all property, real and personal, except as stated in the next section.” The next section relates only to property exempt from taxation by the Constitution. Here again we have the general term “all property real and personal,” and there is in that section no more authority for saying that it includes personal property outside of the State than that it includes real estate beyond our borders; if it includes one it includes both. It will be noticed that there is no tax levied by that section, it is only a declaration that taxes shall be levied, the imposing of the taxes comes later, in section 11415, to wit: “There shall be annually levied, assessed and collected on the assessed value of all the real estate and personal property subject by law to taxation in this State fifteen cents on each hundred dollars valuation for state revenue,” etc. By the terms of that section there must be an assessment before there can be a levy. Provisions for the assessment are made in subsequent sections. By the terms of that section the property to be taxed is not all the real and personal property a man may own, but all that is “subject by law to taxation in this State,” that is, property which is not exempt from taxation and which is designated by statute to be assessed for taxation. No property is taxable but that which is required by law to be assessed for taxation.

If the terms “property” and “personal property,” standing alone, are to be understood as including property or interests in property, outside of this State, under the definitions of those terms given in section 11519, they cannot be so construed in the connection in which they are used in section 11415, just quoted, because those terms are there used with the limitation “subject by law to taxation in this State.” Section 11519 undertakes to define the terms “property” and “personal property,” but it does not undertake to define the term “property subject by law to taxar tion in this State”; we must look the whole revenue chapter, over to see what that means. A glance back at some of our earlier revenue statutes will assist in the interpretation of the later ones. In the Revised Statutes of 1845, p. 927, we find a section in which all kinds of property intended thereby to be rendered subject to taxation are specified, and among these is: “Ninth, shares of stock in banks, and all other incorporated companies, except hospitals, literary institutions and library associations. . . . Twelfth, the property of all corporations, over and above their capital stock. . . . Thirteenth, shares of stock or interest in any steamboat.” There we see a purpose expressed to tax shares of stock in all corporations, but whether it means to include corporations outside of this State is left to inference. We see also a purpose to tax, besides the shares of stock, only the property that the corporation owned over and above its capital stock; the idea being that its capital stock represented its other property, and by taxing the stock that property was taxed. In Revised Statutes 1855, p. 1322, the items of property to be returned for taxation are specified, and shares of stock are there specified with an exception. The clause is: “shares of stock in banks and other incorporated companies, excepting manufacturing companies, the property of which alone shall be taxed.” Whether that clause was intended to include foreign corporations is again left to inference; but the excepting of manufacturing companies, which but for the express exception would be included, shows that the lawmaker was contemplating only domestic corporations. Shares of stock in manufacturing corporations were excepted because the property of the corporation was to be taxed, but property of a foreign manufacturing company could not be taxed in this State, unless the foreign company happened to own property here. The statute of 1855 also specified for taxation “all property owned by incorporated companies, oyer and above their capital stock”; again showing the purpose of taxing indirectly so much of the property of the corporation as was represented by its stock, by taxing the stock,- and taxing directly all the other property of the corporation. It shows also a purpose to gather but one tax on all the property of the corporation, and to avoid double taxation. - The language of the statute is not, “excepting such manufacturing corporations whose property is in this State and is here taxed”; if it were so it would show a purpose to tax shares of stock in a corporation whose property was beyond the reach of our assessor and collector; but the language used naturally applies only to manufacturing corporations whose properties are subject to taxation in this State.

In 1857 there was a general revenue law passed (Laws 1857, p. 75) the first section of which contained specifications of the items of property to be taxed, among which -was “shares of stock in incorporated companies at their cash value, excepting manufacturing companies, the property of which alone shall be taxed.” So the law stood until 1866 (Laws 1865-6, p. 125), when a new general revenue statute was enacted, which omitted all specification of items, declaring in section 1 that taxes should be levied on all property, real and personal, except as stated in the next section. And by section 7 the tax was imposed “on lands and other property, real and personal, made taxable by law, forty cents on the hundred dollars of the assessed value thereof.” The significance of that change in the law,' in the particular we are now considering, is that it made no mention of shares of stock in corporations. Whether that omission is to be construed as indicating an intent on the part of the lawmaker not to subject shares of stock to taxation, or as indicating an understanding on the part of the lawmaker that such shares would be comprehended under the general term “personal property,” is left to inference. The statute defining the term “personal property,” on which appellant relies, had not then been passed. The omission cannot be construed into an express exemption of the shares from taxation, because all other previously specified items of property are also omitted, and we have no more reason to say that the mere omission to specify one item is an exemption than we have to say that of other items. But if shares of stock are not taxable except when expressly made so by law, then the omission in the Act of 1866 leaves them out of the range of taxation. And if shares of stock are never taxed except as representing the property, and when so taxed the property they represent is not taxed, then when the property they do represent is taxed, the purpose to also tax the shares of stock is not to be- inferred when not expressed. If shares of stock are taxable because they represent property, then, in order to include them in the term “property” as used in section 7 of the Act of 1866, we must take that word with its context as expressed in that section, which is “property, real and personal, made taxable by law.” In that sense it means shares of stock representing property that is taxable by law in this State. The only thing that can be said with certainty of the Act of 1866, in this particular, is that it did not expressly require shares of stock to be listed for taxation. If shares of stock are to be considered personal property within the meaning of that term as used in that act, independent of their representative character, then the act must be construed to mean that the shares should be taxed and the property of the corporation should be taxed also, which would be double taxation. Our law has never favored double taxation, and ■ therefore a purpose to levy double taxation when not expressed should not be inferred. [Valle v. Ziegler, 58 Mo. 214.]

• In 1872 a new revenue law was passed (Laws 1872, p. 80). Section 7 of that act, without specifications, provided that: “There shall be annually levied, assessed and collected on the assessed value of all the real estate and personal property subject by law to taxation in this State, one-fifth of one per centum for state revenue, and one-fourth of one per centum for the payment of all state indebtedness.” In that act, for the first time, the terms “property” and “personal property” were defined; the definitions being substantially as now given in section 11519, Revised Statutes 1909. In the definition of the term “personal property” there given, shares of stock in corporations are included. In section 57 it is specified that, “No person shall be required to include in his statement any portion of the capital stock or property of any company or corporation, where such company or corporation is required by this act to list or return both its capital stock and property for taxation in this State, except in such eases as may be specifically otherwise provided for in this act.” Therefore it would seem that the framers of that statute understood that shares of stock, except as there excepted, were to be returned in the list for taxation under the term personal property. The reference in that section to corporations that are required by that act to list or return both their capital stock and ^property for taxation, is to banks and insurance compames as provided in section 35 of the act, in which case the corporation was required to pay the tax and reimburse itself by collecting the amount from its shareholders, as provided in section 36.

In 1877 the revenue law was again altered and amended (Laws 1877, p. 376). The Legislature then returned to the former method, which had existed until 1866, of specifications of the items of property to be listed and returned by the taxpayer. That act, in the particular we are now considering, is substantially the same as our present statute.

In the retrospect of our revenue statute which we have just taken we find that at one time, and for a long while, the law required of the taxpayer that he include in his fist for taxation shares- of stock in corporations owned by him, but there is no express inelusion of foreign corporations in that requirement nor are they included therein by necessary implication

The law as it now is does not by express terms impose a tax on shares of stock in any corporation except' in banks, or concerns that do a banking business, insurance companies, concerns owning steamboats or other water craft, and building associations; the property of all other corporations is taxed like property of persons. Banks and insurance companies pay taxes only on their real estate, their personal property is taxed indirectly by taxing the shares of stock. The reason for that .system of taxation is that national banks usually have a large part of their capital invested in Government bonds which are not subject to taxation, but an act of Congress authorizes the State to tax the stock of the bank according to its real value, which includes in its estimate the non-taxable bonds, and the General Assembly, to avail itself of that act, put state banks and insurance companies on a plain with national banks. [State ex rel. v. Shryack, 179 Mo. 424.] The peculiar character of steamboats, here to-day and beyond reach to-morrow, is the reason for requiring the resident owner of such stock to include it in his list to be returned to the assessor, and the peculiar nature of interests in building association also furnishes a good reason for making an exception as to such stock.

The reason for making exceptions of banks, insurance companies, steamboat companies and building association is the difficulty ’ in reaching the tangible property in those concerns; the stock is treated as representing the property and taxed in lieu of taxing the property. The property of all other corporations could be reached, and, as double taxation was not in favor, shares of stock in such was not included in the items of property specified for taxation. In none of our statutes, past or present, is there anything to indicate a purpose to tax shares of stock except as they represent property “subject by law to taxation in this State,” unless it be in the case of banks and insurance companies that own Government bonds that are not taxable, but even in such case the bonds though not taxable are here and under the protection of our law. The special provision for taxing shares of stock in banks, insurance companies, steamboat companies and building associations, in the fight of the evident reasons therefor, and the omission to mention for taxation shares of stock in other corporations, and the provision made for the taxing of their properties show that taxing • shares of stock in foreign corporations was never in the mind of the General Assembly. This-State has always maintained a high standard of public policy and has never attempted to reach beyond its borders to gather revenue from property not under its protection. The definitions of the terms “property” and “personal property” in section 11519, Eevised Statutes 1909, first appeared in the Act of 1872, when there were no specifications of items of property to be taxed, and, although it has been brought down through the revisions of our statutes to the present time, yet it means now no more than it meant when first enacted, and is to be applied to those terms when used generally. Those definitions were not then and are not now intended to inject into the fist of specifications, which are designed to cover the whole ground, other specifications not only not contained in the fist but in discord with the whole theory of assessment as shown by the statute. The plan of giving the taxpayer no specifications to guide Mm in making out Ms fist to be returned to tfie assessor, wMcfi was adopted in 1866, after being tested for ten years or more, was found to be unsatisfactory, at least it is to be so inferred, because in 1877 tfie General Assembly abandoned tfiat plan and adopted tfie plan now in use fumisMng tfie taxpayer with, a full fist of items to guide Mm in making Ms return under oath and under penalties, and if we should now construe tfie law to be tfiat fie was not only required to make Ms return of tfie items specified on tfiat fist, but also to go to section 11519 and figure out if fie could, or at Ms peril if fie could not, what else was required to be fisted, under the broad defimtion of property and personal property in tfiat section given, we are satisfied we should do violence to tfie meamng of tfie statute.

Appellant relies on the case of Ogden v. City of St. Joseph, 90 Mo. 522, but tfie decision in tfiat ease was based on a clause in tfie charter of cities of tfie second class wMcfi is not in tMs ease. The only authority tfie city of St. Louis has for levying taxes is section 1, article Y, of its charter, wherein authority is given to “annually levy and collect taxes on all subjects and objects of taxation, and all property witMn tfie city made taxable by law for state purposes.”

We do not pass judgment on tfie proposition stated in tfie briefs of respondent tfiat an act of tfie General Assembly essaying to tax shares of stock in foreign corporations would be unconstitutional, ^because tfie General Assembly has not enacted -such a statute.

We hold tfiat there is notMng in our statutes intended to render subject to taxation shares of stock field by a resident of tMs State in a foreign corporation whose property is not in tMs State. Tfiat is tfie view of tfie law taken by tfie learned trial judge in tMs case. Tfie judgment is affirmed.

Lamm, Woodson, Graves, -Ferriss and Brown, JJ., concur; Kennish, J., concurs in result.


author: GRAVES, J.

text:
    THE STATE ex rel. AMERICAN PIGMENT AND CHEMICAL COMPANY v. GEORGE H. SHIELDS, Judge, et al.
    In Banc,
    November 27, 1911.
    1. PROHIBITION: Motion for Judgment on Pleadings: Admits Facts Well Pleaded. A motion by relator for judgment on the pleadings in a prohibition ease concedes all the facts well pleaded in the return; and if the facts set out in the return show that the court had jurisdiction of the cause and of relator, the writ will be denied.
    2. -: Jurisdiction: Dependent Upon Facts: Determined by Trial Court. An inferior court has as much right to determine the facts affecting its jurisdiction as it does to determine any other fact in the progress of the case. Where its jurisdiction to hear and determine the case rests upon facts, the Supreme Court will not interfere by its writ of prohibition with its adjudication determining from the facts that it had jurisdiction, for such matter then becomes mere error and can be reached by appeal. Where the circuit court, upon appeal, passed upon the facts going to the jurisdiction of the justice of the peace, before whom relator was sued, over relator’s person, and determined therefrom that the justice had jurisdiction, the Supreme Court- will not by its writ of prohibition prohibit the circuit court from enforcing its judgment against relator.
    3. -:-: Res Adjudicata: Foreign Corporation: Return of Constable. Where there was an appeal from the judgment of the circuit court to the Court of Appeals, and that court held that the return of the constable was sufficient to confer jurisdiction on the justice over the relator, and, in addition, found as a fact that relator, although a foreign corporation, was doing business in this State at the time of the service, and that service upon its president, resident of this State, was a good service under the facts disclosed, the Supreme Court will not by its writ of prohibition prohibit the enforcement of the judgment of the circuit court, holding that the justice of the peace court had jurisdiction over the person of relator, for the decision of the Court of Appeals is res adjudicata, and being final there can be no further review thereof.
    Prohibition.

      Writ denied.

      Henry W. Femmer for relator; James T. Roberts of counsel.
    (1) All of the returns of. the special constable appearing in the record in this case are insufficient to confer jurisdiction in this: (a) The, original return of the special constable is insufficient in that it appears affirmatively on the face of the return, “Said defendant corporation, American Pigment & Chemical Company, having no business office in St. Louis at time of service.” Sec. 3862, R. S. 1899; see. 7423, R. S. 1909.-(b) What purports to be the first amended return has no validity, as there is nothing on the return or in the transcript of the justice to show that it was ever filed with the justice. Fidelity & Guaranty Co. v. Feed Co., 100 Mo. App. 724. (c) What purports to be the second amended return is merely the last mentioned return with the date of service inserted, and the mere insertion of the date cannot give it any validity. (d) All of the foregoing returns are insufficient in .that they are all signed “A. H. Watson,” without anything to indicate that he held any official position. State v. Harriman, 1 Mo. 505; Atwood v. Reyburn, 5 Mo. 533; State v. Huff, 161 Mo. 492; Murfree on Sheriffs, sec. 843. (e) The last amended return is insufficient in that it is signed “A. H. Watson, Special Constable.” Watson being but a special deputy for the occasion, Ms return should have been in the name of the constable, Samuel Young. See citation under (d). (2) Jurisdiction to render a personal judgment against a foreign corporation can oMy be acquired by the courts of Missouri when such corporation is found to be doing business in the State of Missouri at the time of service. R. S. -1899, Sec. 3862; Sec. 7423, R. S. 1909; PMllips v. Library Co., 141 Pa. St. 462; Zelmcker v. Cotton Oil Co., 103 Mo. App. 97; Camden R. M. Co. v. Swede Iron Co., 32 N. J. L. 15; St. Clair v. Cox, 106 U. S. 350; Fitzgerald v. Fitzgerald, 137 IT. S. 98. (3) The fact that service was had on the president of relator herein, the American Pigment & Chemical Company, did not give the circuit court of the city of St. Louis jurisdiction over the person of said corporation so as to authorize the rendition of a personal judgment against it, when it appeared that at the time of service the company was not doing business in the State and had no office or agency here. See cases cited under point 2. (4) The fact that this case originated before a justice of the peace and that after judgment by default against it relator herein took an appeal to the circuit court of the city of St. Louis, did not preclude the relator herein from raising the question of jurisdiction in the circuit court. Meyer v. Insurance Co., 184 Mo. 481; Bente v. Typewriter Co., 116 Mo. App. 77; State ex rel. v. Ayers, 116 Mo. App. 90; Trimble v. Elkins, 88 Mo. App. 229; Implement Co. v. Hardware Co., 137 Mo. App. 316; Smith v. Rock Co., 132 Mo. App. 309. (5) The testimony as preserved in the exemplified copy of the proceedings had by the circuit court of the city of St. Louis in the case of Stegall v. American Pigment & Chemical Company, shows that at. the time of the attempted service of the writ in that case on July 14th, 1908, the American Pigment & Chemical Company was not doing business in the State of Missouri within the meaning of the law. John Deere Plow Co. v. Wyland, 69 Kan. 255; Sigel-Campion Co. v. Haston, 68 Kan. 479; First Nat. Bank V. Leeper, 121 Mo. App. 688; Ladd v. Mo. Coal & Mining Co., 160 Mo. 436; Doty v. Railroad, 8 Abb. Prae. (N. Y.) 427; Hart v. Livermoie Fry Co., 72 Miss. 809; People v. Equit. Tr. Co., 96 N. Y. 387; People v. Horn Silver Min. Co., 105 N. Y. 76; State ex rel. v. Feitner, 78 N. Y. Supp. 1017; Honeyman v. Colo. Fuel & I. Co., 133 Fed. Rep. 96.

      Jamison & Thomas for respondents.
    (1) Relator herein is seeking in effect to prosecute an appeal of the case of Stegall v. American Pigment & Chemical Company to the Supreme Court. Prohibition will not be.permitted to usurp the place of or give a litigant the benefit of an appeal. State ex rel. v. Stobie, 194 Mo. 45; Wand v. Ryan, 166 Mo. 646; Eckerle v. Wood, 95 Mo. App. 378; State ex rel. v. Burkhartt, 87 Mo. 533; Bowman’s ease, 67 Mo. 146; State ex'rel. v. Lewis, 76 Mo. 376; Mastín v. Sloan, 98 Mo. 252; State ex rel. v. Klein, 116 Mo. 259. (2) If the court is empowered by law to determine cases of the class of that in question, the court has jurisdiction, and prohibition will not he unless the court attempts to exceed the limits of its powers as prescribed. Dowdy v. Womble, 110 Mo. 280; Wand v. Ryan, 166 Mo. 649; State .ex rel. v. Smith, 104 Mo. 419; State ex rel. v. Smith, 105 Mo. 6; State ex- rel. v. Scarritt, 128 Mo. 331. (3) The circuit court of the city of St. Louis had full and complete jurisdiction to decide, and the Court of Appeals to review and affirm such decision as to all questions presented on the record of the case of Stegall v. American Pigment & Chemical Company, and the finding of the circuit court, affirmed by the Court of Appeals, is final. State ex rel. v. Smith, 104 Mo. 419; State ex rel. v. Smith, 105 Mo. 6; Coleman v. Dalton, 71 Mo. App. 14. (4) A court has jurisdiction to determine its own jurisdiction; and where jurisdiction depends on issuable facts, and those facts are found by the court, such finding is res adjudicata, and will not be disturbed by prohibition. 23 Am. and Eng. Ency. Law (2 Ed.), 200, 209; State ex rel. v. Seay, 23 Mo. App. 623; State ex rel. v. Smith, 104 Mo. 419; Hansford v. Hansford, 34 Mo. App. 262; State ex rel. v. Smith, 105 Mo. 6; Coleman v. Dalton, 71 Mo. App. 14; Bankers’ Life Ass’n v. Shelton, 84 Mo. App. 634. (5) A court of appeals has full and complete jurisdiction to determine every question arising on the record in every case properly before it, and that decision is no less final than a decision of the Supreme Court. State ex rel. v. Smith, 104 Mo. 419; State ex rel. v. Smith, 105 Mo. 8. (6) The signature “A. H. Watson,” signed to the first three returns and the signature “A. H. Watson, Special Constable,” signed to the last amended return, together with the notarial certificates that each of said returns was sworn to by said A. H. Watson, are sufficient. Secs. 7424, 7425, R. S. 1909.
   GRAVES, J.

Relator applied for a writ of prohibition against the Judge of División No. 9 of the circuit court of the city of St. Louis. The purpose was to prohibit said judge from enforcing a judgment rendered therein in a case of Harry W. Stegall v. American Pigment & Chemical Company, the relator herein. The Stegall suit was first instituted in one of the justices’ courts of the city of St. Louis and from thence taken to the circuit court. This is as far as we are informed by the petition for the writ of prohibition. The relator in this suit, the defendant in that suit, had challenged the jurisdiction of the justice of the peace over its person. There were two principal grounds assigned, (1) that the return of the special constable was insufficient to confer jurisdiction, and (2) that the defendant was a nonresident corporation and was doing no business in this State. We shall not go further into the petition of the relator in the present suit, because a full and complete return has been made by the respondent, Judge Shields-, and the cause is submitted upon a motion for judgment on the pleadings. This kind of a motion in law concedes all of the facts which are well pleaded in the return. We are therefore more concerned in the facts found in the return. The return presents altogether a different case from that presented by the petition. From the return it appears that the circuit court heard evidence on the question of fact as to whether or not this relator, defendant in the other suit, was actually doing business in this State at the time of service. It further appears from the return that' relator in that case always appeared specially and raised the question of jurisdiction throughout; that when the motion going to the jurisdiction was ruled adversely by the .circuit court, relator refused to appear to the merits, and the cause was heard and judgment entered for $237.82 against this relator. The return further shows that from this judgment the relator in this case, defendant in that case, sued out a writ of error to the St. Louis Court of Appeals and that court after a full consideration affirmed the judgment nisi. [See 150 Mo. App. 251.] The application made to this court withheld the determinative facts of the case. The last amended return upon which judgment was entered in the circuit court was not set out in the petition, but another and different return. The fact that a writ of error was sued out was not set out. To read the petition for our writ and then read the return, one would not take the two causes therein to be the same case. The facts of the return being undenied, and in law admitted by the motion for judgment, we will adjudge the case here upon those facts. This sufficiently states the case.

I. Our prehminary rule in prohibition in this case should be quashed for at least two reasons. These we take in order.

In the first place where the jurisdiction of a court to hear and determine a case rests upon facts, this court will not by its writ of prohibition preclude such court from determining its jurisdiction from the facts, and after it has determined its jurisdiction from the facts will not interfere, for the reason that such matter then becomes mere error and can be reached by appeal. An inferior court has as much right to determine the facts going to its jurisdiction as it has to determine any other fact in the progress of the- case. In the case at bar, both the justice’s court and the circuit court passed upon the facts going to the jurisdiction of the justice of the peace. We are not without authority upon this question in this State. [Coleman v. Dalton, 71 Mo. App. l. c. 24; State ex rel. v. Mills, 231 Mo. 499.]

In the latter case we quoted at length from the-Coleman case, supra, and indorsed the doctrine therein announced by Gill, J. We there said:

“Where the jurisdiction of the probate court is dependent upon the fact of the person being within the territorial jurisdiction of the court, a writ of prohibition will not he to prevent the probate court from investigating the necessary facts to determine its own jurisdiction, nor could prohibition be granted to prevent an entry of the court’s judgment, whether that judgment be right or wrong, as to the jurisdiction over the person. In other words, if the law determines the right of a court to entertain or not entertain jurisdiction of a case, then prohibition will he, but if jurisdiction is contingent upon facts, unless such facts be admitted and not disputed, the lower court has the right to determine its jurisdiction from the facts before it. To my mind, there is no clearer' statement of the law upon this point than that made by Gill, J., in Coleman v. Dalton, 71 Mo. App. 24. The writer, as counsel, lost that case, but appreciates the force of the opinion on the question of jurisdiction of probate courts.”

Further on in the Crouse ease, we said:

“But there is yet another matter which to our mind settles this point of jurisdiction over the p'er-son. The relator, Mrs. Crouse, after the entry of judgment, filed her motion to vacate and set aside the judgment entered, on the ground, among others, ‘that the court did not have jurisdiction over her person and estate at the time said judgment and appointment was made and entered, in that she was not in the county of St. Louis, within the meaning of the laws of Missouri relating to' insane, persons, at or prior to the time the court caused the facts to be inquired, into.’ The probate record filed here as a part of respondents’ return in this case shows that this motion was tried upon evidence, and for the sec.ond time the probate court passed upon the fact of its jurisdiction of the person. From this judgment an appeal was taken, first, to the circuit court, and then to the St. Louis Court of Appeals, with the result as set forth in our statement. As stated elsewhere these courts held that an appeal would not he from the probate court in this character of a case. Whether this ruling is correct or not we- will not discuss, because the matter is finally determined by the St. Louis Court of Appeals, even though we might think that judgment erroneous. The judgment stands in full force, and under this judgment there has been a finding as to the facts necessary to determine the court’s own jurisdiction. That finding may be erroneous, but it has passed beyond the realm of review. It is final, and is not subject to attack in this proceeding. We conclude therefore that the judgment of the probate court is final in this matter, as to the status of the relator, Mrs. Crouse, and her estate.”

So in the case at bar, the circuit court upon evidence heard before it determined the question of jurisdiction. Likewise it is to be presumed that the justice’s court determined its jurisdiction. This, however, is not really material, because the jurisdiction of the. circuit court was dependent upon the jurisdiction of the justice’s court, and the circuit court had the right to determine its own jurisdiction, where such jurisdiction rested upon facts, and we shall not prohibit it from so doing. After it had determined •its jurisdiction, whether rightfully or wrongfully, the writ of prohibition should be refused, because such is a matter of error, from which there is an adequate remedy by appeal.

For this reason, our preliminary rule in prohibition should be quashed..

II. There is a further reason for quashing the writ in this case. It appears that the whole matter has been fully and finally adjudicated by the St. Louis Court of Appeals. That court had full jurisdiction to determine the questions involved. That court could determine the sufficiency of the return of the special constable, as well as the sufficiency of the proof made of the facts to show jurisdiction in the justice’s court. It did in an elaborate opinion rendered hold that the return was sufficient to confer jurisdiction, and in addition found from the evidence that defendant, although a foreign corporation, was as a fact doing business in this State at the time of the service, and that the service upon its president, resident in this State, was a good service under the facts disclosed. Whether this judgment of the St. Lords Court of Appeals is right or wrong we need n<?t determine. It is sufficient for us to say that such, court had the right to adjudicate the questions, and it has so done. The whole of relator’s complaint here is res adjudicata. [Coleman v. Dalton, 71 Mo. App. l. c. 24; State ex rel. v. Mills, 231 Mo. 499.]

The preliminary rule in prohibition is quashed and the permanent writ therefore denied.

All concur.