author: WALKER, J.

text:
    RUECKING CONSTRUCTION COMPANY v. WILLIAM M. WITHNELL, Appellant.
    In Banc,
    January 17, 1917.
    1. SPECIAL'TAX BILL: Formation of District: According to Charter. If in the formation of the assessment- district, in a proceeding to pave a public street, all of the material requirements of the charter were complied with, the owner of land therein has no • ground to complain of its formation, when sued upon the special tax bills.
    2. -: --: Discrepancies. Discrepancies shown by the plat of the benefit district, due to irregularity or curving in the street to be improved, afford no ground for a contention that the district was not formed according to law, if no other subdivision would have produced greater uniformity in the apportionment of the benefit taxes upon the property of the district.
    3. -: Uniformity of Taxation. The provisions of the State Constitution relating to uniformity and equality of taxation do not apply, to the right of a municipality to make special assessments for local improvements.
    4. -: Due Process: Notice. The special assessments authorized by section 14 of article 6 of the charter of St. Louis do not amount to taking the owner’s property without due process of law. The procedure authorized by said section in regard to publication of notice to property-owners satisfies the constitutional requirement and constitutes due process.
    5. -: Area Rule: Validity of Section 14 0f Article 6 of Charter. The Supreme Court of the United States in holding invalid the ordinance under which the property was assessed according to area, in Gast Realty & Investment Co. v. Schneider Granite Co., ■ 240 U. S. 55, did not hold' invalid section 14 of article 6 of the charter of St. Louis, and did not declare that all assessments by the area rule are invalid, but that they are invalid only when they are made in accordance with an ordinance which produces the inequalities and injustice manifested by the ordinance in that case.
    g.-; Notice of Institution of Suit: Sec. 9848, R. S. 1909: Remedy. Section 9848, Revised Statutes 1909, requiring notice of the institution of a suit to enforce a special tax bill to be filed with the comptroller of the city within ten days after its institution, has no application to a suit on tax bills which became a lien on the property before it went into force; it does not affect the remedy alone, and to give it a retroactive operation would be to deny to the holder of the tax bill the protection of the constitutional provision forbidding the impairment by legislation of vested rights.

      7. -: Limitations: Two Years After Last Installment. The statute (Sec. 9849, R. S. 1909) expressly provides that an action on the special tax bills is not barred until two years after the last installment has become due; and where the tax bills were issued in seven installments, under a charter provision declaring that tax bills may be made payable in installments of not less than three nor more than seven in number, a suit on all the tax bills begUD before the last installment became due is not barred.
    8. -: -: -: Amended Petition. If the action was not barred by limitations at the time the amended petition was filed, a judgment on the tax bills cannot be defeated on the ground that the original petition did not .(state a cause of action and the bar of the statute intervened between the time of filing the original and the amended petition, because the defense is based on a premise not founded on fact.
    9. DEPARTURE: Answering to Merits: Waiver. To render available a contention that an amended petition constitutes a new cause of action and a departure, defendant should stan'd on his objection thereto, and not waive it by answering over and going to trial.
    Appeal from St. Louis City Circuit Court. — Hon. Wm. M. Kinsey, Judge.
    Affirmed.

      E. T. £ G. B. Allen for appellant.
    (1) That no cause of action was stated in the first petition was confessed by filing an amended petition. On May 23, 1910, when the ameded petition was filed, the action was barred. Walker v. Railroad, 193 Mo. 474; Bricken v. Cross, 163 Mo. 456. (2) The amended petition constituted a departure. The first petition sought to foreclose a lien for special 'assessment created under the charter of 1876, which was' repeated in 1901. The amended petition sought to foreclose the lien for special assessment created by the amendment of the charter in 1901. Wasson v. Boland, 136 Mo. App. 628; McHugh y. Transit Co., 190 Mo.,94; Ingwerson v. Railroad, 205 Mo. 355; Huston v. Tyler, 140 Mo. 252; Sutter v. Raeder, 149 Mo. 309; Wilketson v. Eamham, 82 Mo. 672; Lennox v. Coal Co., 158 Mo. 490; Ross v. Land Co., 162 Mo. 318; Hernán v. Grlann, 129 Mo. 336. (3) The
    amended petition contained no allegation that the required notice was given the property-owner. Without such a notice plaintiff had no cause of action.' The demurrer should have been sustained. Rombauer’s Municipal Code, art. 4, sec. 25, p. 383; Schneider v. Gast Inv. Co., 259 Mo. 153; Schulte v. Currey, 173 Mo. App. 578; Trust Co. v. County, 145 Fed. 874; Trinidad v. Hokasona, 178 Fed. 440; Canter v. St. Joseph, 126 Mo. App. 634. (4) The amended petition having alleged that the entire amount of the tax bill was due and payable on March 2, 1908, showed on its face that the lien had expired on March 23, 1910, when the amended petition was filed. Rombauer’s Municipal Code, art 6, sec. 25. (5) There was no allegation in the amended petition that plaintff had elected to cause all installments to mature. Without such án allegation the bill as a whole had not matured. The demurrer should have been sustained. Municipal Code, art. 6, sec. 25. (6) Secs. 9848 'and 9849, R. S. 1909, are not in conflict with the charter of St. Louis. Such appears from the words of those provisions. (7) The Legislature has absolute power over municipal corporations unless such power is denied to it by the State or' Federal Constitutions. Art. 4, sec. 1, Constitution 1875; Kelly v. Meeks, 87 Mo. 400; Commonwealth v. Moir, 199 Pa. 534; State v. County Court, 34 Mo. 546; County Court v. Griswold, 58 Mo. 175; Cass County v. Jack, 49 Mo. 199; Commonwealth v. Plaisted, 148 Mass. 375; Darlington v. Mayor, 31 N. Y. 164. (8) Statutes relating to procedure are presumed to apply to all actions pending or future actions unless the statute shows a contrary intention. Clark v. Railroad, 219 Mo. 524; State ex rel. v. Stuart, 111 Mo. App. 478; Oil Co. v. Beacham, 120 Pac. 969; Darling v. Miles (Ore.), 112 Pac. 1084; Laird v. Carton, 196 N. Y. 169; Haarstick v. Gabriel, 200 Mo. 237. (9) The constitutional provision against retrospective legislation does not prevent retrospective change of remedy, but protects vested rights. Abbott v. Mining Co., 255 M'o. 378; Clark v. Railroad, 219 Mo. 524; Gibson v. Railroad, 225 Mo. 480. (10) The extinguishment, modification or limitation óf a lien is a mere change of remedy, the lien itself being a method of enforcing a right. Abbott v. Mining Co., 255 Mo. 378; Seibert v. Copp, 62 Mo. 182; Wade, Eetroactive Law, see. 231; Burwell v. Tullis, 12 Minn. 572; Bangor v. Coding, 35 Me. 73. (11) The requirement of notice in the present tax bill and lien statute is a mere change in remedy and applies to all actions brought after its enactment whether the tax bill was issued before its enactment or after. Trust Co. v. Donnell, 81 Mo. App. 147; West v. Porter, 89 Mo. App. 150; Plum v. Fond du Lac, 51 Wis. 393,

      George M. Block, Edward L. Gottschalk and Schnurm-acher & Rassieur for respondent.
    (1) Both the original and amended petition stated facts sufficient to constitute good causes of action. Bambrick Bros. Constr. Co. v. McCormick, 157 Mo. App. 198; Paving Co. v. Bath, 136 Mo. App. 555; Bank v. Wright’s Trustee, 68 Mo. App. 144; Vieths v. Planet Co., 64 Mo. App. 207; Turner v. Patton, 54 Mo. App. 654. (a) Both were based on exactly the same tax bills. The original differed from the amended petition only in that it averred certain legal conclusions which- were erroneous. The amended petition was, therefore, not a departure, nor an attempt to substitute a different cause of action, (b) But if it had been a departure, by pleading over and going to trial, defendant waived this objection. Castleman v. Castleman, 184 Mo. 432. (2) Since the amended petition was not a departure from the original and related back, the suit was begun February 26, 1910, and before any of the installments of< the tax bills matured. But even on the theory that the suit was first instituted when the amended petition was filed on May 23, 1910, the action was not barred. Only tax bills, not payable in installments, expire two years* after their date. Fruin v. Meredith, 145 Mo. App. 586. (3) The petition nowhere states that the tax bills became due and payable March 2, 1908, as contended by defendant. The allegation is that on that date payment of the tax bills was demanded, that payment was refused and that the tax bills are ‘ ‘ still due and payable. ’ ’ Under the charter of the city of St. Louis the first installment did not become payable on demand, bnt thirty days after notice of the issuance of the tax bill. Charter of St. Louis, art. 6, sec. 25; Fruin v. Meredith, 145 Mo. App. 600. (4) A petition to enforce a special tax bill need not allege in so many words that defendant’s property is within the taxing district. See cases cited under point one. That fact, however is alleged in the petition at bar, by necessary. intendment. Vieths v. Planet Property & Financial Co., 64 Mo. App. 211. (5) The case of Cast Realty & Investment Company v. Schneider Granite Company, 240 U. S. 55, does not invalidate any of the provisions of the St. Louis City charter, nor overrule any doctrine of this court on the subject of special taxation, as assumed in the divisional opinion. It merely decides that upon the peculiar and unusual facts presented in that case, the assessment there in question was invalid as to so much thereof as related to the three-fourths based on area; but limits the right of complaint to persons actually suffering from “inequalities that have no justification in law.” ' Even in that case the one-fourth of the tax bill based on frontage was not questioned. The United States Supreme Court has not condemned either . the front foot rule, nor the area rule, nor a combination of both, in apportioning the cost, of local improvements. On the contrary, since its decision in Gast Realty and Investment Company v. Schneider Granite Company, it has recognized such methods. Land Co. v. Kansas City, U. S. Adv. Ops. 1915, p. 647; Wagner v. Leser, 239 U. S. 207.
   WALKER, J.

This is a suit brought by the Ruecking Construction Company in the circuit court of the city of St. Louis, in twelve counts on twelve special tax bills issued by said city to the construction company for the paving of Broadway between Osage and Neosho streets, a distance of six blocks. William W. Withnell, the defendant, is the owner of the property against which it is sought to enforce the lien of the tax bills. The first five counts of the petition are against, five lots in City Blocks 2609 lying east of Broadway between Montana and Gasconade streets. The succeeding five counts are against five lots in City Block 2608 on the east side of Broadway between Montana and Osage streets. The eleventh count is against a lot in City Block 2621 on the west side of Broadway between Gasconade and Meramec streets; and the twelfth count is against a lot in' City Block 2620 on the west side of Broadway between Gasconade and Meramec streets. The first ten counts are-on tax bills for $187.69 each. The eleventh count is on a tax bill for $3097.05; and the twelfth count is on a tax bill for $2745.28. The petition alleged the corporate nature of the plaintiff, that the defendant was the owner of the property described and that the city of .St. Louis, by virtue of Ordinance No. 22604, contracted with plaintiff for the paving of Broadway between the limits named; that by a proyision of the charter of said city, as amended October 22, 1901, the cost of the work was chargeable, in the name of the owner, to the abutting property, to the extent of one-fourth according to its frontage and to three-fourths according to its area; that by the terms of the contract and said Ordinance No. 22604 the materials to be used and the manner in which the work was to be done are prescribed; that plaintiff fully performed and completed the work in a skillful and workmanlike manner and in accordance with the contract and ordinance; that the president of the Board of Public. Improvements had charge of the work, and when the same was completed computed its cost and. assessed the value as a tax bill against the property of- the defendant in proportion to its frontage and area and made out the tax bills therefor; that the just proportion of the cost of the work chargeable to the property described is .the amount for which the bill was made out; that the particulars of same appear from a bill filed as an exhibit therewith; that the president of the Board- of Public Improvements who made out the tax bill registered the same in his office and certified and delivered it to the Comptroller and took his receipt therefor, and that the Comptroller registered and countersigned the bill, delivered it to plaintiff and that he is the owner of same; that by virtue of the provisions of the charter and the facts aforesaid the bill became and is a lien against the lots described for special taxes, and that on March 2, 1908, plaintiff demanded of defendant payment of the bill, which was refused, and that same is- still due and ■unpaid; thereupon follows a prayer for judgment of the amount of the tax bill, with interest at the rate of eight per cent per annum after maturity. The facts set forth are those which appear in an amended petition filed by plaintiff on May 23, 1910, by leave of court correcting certain errors in the original petition.

Defendant filed an answer, together with a cross-hill asking affirmative relief.

The answer consists (1) of a general denial, (2) an allegation that plaintiff failed to file in the Comptroller’s office within ten days after the filing of the original petition the notice referred to in sections 9848 and 9849, Revised Statutes 1909, in consequence of which it was averred that the lien of the tax bill had terminated, and (3) that the suit to foreclose the lien was not brought within two years from the date of the tax bill.

The cross-bill prays that the tax bill be declared void and that plaintiff be enjoined from transferring or collecting the same and be ordered to cancel and deliver 'it into court and that the lien thereof be discharged for the following reasons: (1) that the taxing district had been improperly laid out and thus unlawfully increased the assessment against defendant’s property; (2) that by the incorrect location of the district through the workhouse property the city’s proportion of the cost of the improvement was greatly lessened and the assessment against the remainder of the property in the district greatly increased; (3) that the assessment is in substantial excess of any possible benefit to defendant’s property and is in violation of the Fourteenth Amendment of the Federal Constitution; (4) that a large amount of real estate belonging to other persons similarly located with reference to the street to be improved and of like proximity and value to that of defendant’s property, was not assessed or included in any tax bill for any part of said improvement, thereby depriving defendant of Ms property without due process of law and denying to him the equal protection of the law by subjecting his property to the lien of said assessment and relieving the property of others, similar in location and value to that of defendant, from said lien; (5) imposing an arbitrary, unjust and unlawful assessment upon property which had not been divided into lots, in violation of the Fourteenth Amendment of the Federal Constitution; and (6) in not affording defendant an opportunity to be heard upon the establishment, of the district, the benefits derived, upon whom the tax should be levied, the making of the assessment and its apportionment and the enforcement of same, which results in the taking of •defendant’s property without due process of law, m violation of the Fourteenth Amendment of the Federal Constitution.

To the answer and cross-bill plaintiff filed a reply consisting (1) of a general denial of each affirmative allegation therein; (2) alleging that sections 9848 and 9849 of the Revised Statutes of the State of Missouri are either unconstitutional and void or are not applicable to the city of St. Louis or to this cause, because in conflict with the charter of said city, and that the General Assembly was without power to pass a law changing the said charter, and that the tax bills in the suit were issued prior to the passage and adoption of said sections.

A jury being waived, the case was tried before the court, resulting in a finding against the defendant on his, cross-bill and in an entry of judgment in favor of the plaintiff on all of the counts in the petition. After a compliance with the necessary formal procedure the defendant perfected an appeal to this court.

I. The memorandum filed herein by his honor Judge Kinsey in rendering the judgment below presents a clear and succinct statement of this case and we will avail ourselves of same wherever it is found rLecessary Ü-ie determination of the issues submitted. As suggested by Judge Kinsey, an orderly presentation of the matter will be best sub-served by a consideration, first, of defendant’s cross-bill, because if tbe matters therein set forth are well pleaded and sustained by substantial proof, the defendant is entitled to the relief he asks and' it will follow that the issue must be ruled against the plaintiff. With this in view we have set out somewhat in detail defendant’s cross-bill; the first, second and a part of the fourth paragraphs of same have reference to alleged defects in the establishment of the assessment district in that it was not established in accordance with the provisions of section 14 of árticle 6 of the charter of the city of St. Louis as the same existed and was in force at the time of these proceedings. [Bevised Code St. Louis 1912, Bombauer, p. 365.] Without burdening this opinion with a copy of said section of the charter, we find upon an examination of the record, which includes the plat as well as oral and documentary testimony, that all of the material requirements of this section were complied with in the formation of this district. This question was carefully reviewed by this court in the Collier and Kauffman cases (Collier Est. v. Paving & Supply Co., 180 Mo. 362; Kauffman v. Paving & Supply Co., 180 Mo. 362) in which it was held that where the record discloses that a district has been laid out in substantial conformity with the charter, the property-owner has no ground of complaint.. In Meier v. St. Louis, 180 Mo. 391, the doctrine in the Collier and Kauffman eases was affirmed, as it has been several times subsequent thereto, the last utterance of this court on the subject being found in Kennard v. Eyermann, 267 Mo. 1. These precedents suffice under the facts to destroy the force of defendant’s contention that the district was not laid out in conformity with the requirements of the charter. Furthermore, the plat of the district shows that the property east and west of Broadway, in the matter of the material subdivision of same for the purposes of this -assessment, is treated with the utmost fairness and as .much equality as the character of same will permit. Wherever any discrepancy occurs, and i.t is but seldom, it is due to the irregularity or curving of Broadway, and no other subdivision could have been made promotive of greater uniformity in the placing of the burdens upon the property in the district.

II. Other grounds of objection urged by defendant challenge the constitutionality of 'the charter. So for as the' contention that the section in question is violative of the State Constitution, we held in Ranney v. Cape Girardeau, 255 Mo. 514, and in many earlier cases, that the provisions of the State Constitution relating to the uniformity and equality of taxation were not intended to apply to the right' of a municipality to make special assessments for local improvements,' but only to such general or special taxation having for its object the- raising of revenue to go into the treasury of the State, county, city or town, as the case might be. •

In construing said section 14 of article 6 in the Meier case (p. 409) we have also held that the special assessments authorized thereunder did not amount to a taking of the owner’s property without due process of law; that the procedure authorized by said section in regard to publication of notice to the property-owners satisfies the constitutional requirement and constitutes due process of law as to matters to be passed upon by the tribunal upon which is devolved the duty of ascertaining the facts and acting thereon.

III. There was no evidence offered to sustain the allegations of the cross-bill that the tax bills were confiscatory or that they were disproportionate ^le beuefits received in that the city had escaped-the payment of its just proportion of the cost of the improvement because of its ownership of certain property within the benefit district.

IV. Defendant contends further that the tax imposed results in a taking of his property without due process of law, in violation of the Fourteenth Amendment of the Constitution of the United States, and cites as sustaining this contention the ruling of the Supreme Court of the United States in the recent case of Gast Realty & Investment Co. v. Schneider Granite Co., 240 U. S. 55, decided in January, 1916, on error from this court. The effect of this ruling, as contended by defendant and as was held in Division when the opinion of the Federal Supreme Court came down, was that it held invalid the charter provision (Sec. 14, art. 6, Revised Code of St. Louis) authorizing the laying out of benefit districts for the purpose of levying special assessments for street improvement and as a consequence that the ruling rendered invalid all ordinances based upon such charter provision. A more careful review of the opinion renders it evident that it was not intended thereby to hold the charter provision in question invalid and thus destroy the special taxing system of the city of St. Louis so far as same applies to street improvement. Instead of such' a sweeping and destructive ruling, it was only meant to condemn the ordinance in the case there under review, as the language of the modified opinion discloses, viz., “Our decision is limited, of course, to the particular ordinance before the court; to the assessment of three-quarters determined in the mode described, and to those who, like the plaintiff in error, have suffered from the inequalities that have no justification in law.” [240 U. S. l. c. 60.] "Words, could not be employed to more clearly convey the court’s meaning. However, if the modification of the opinion had not been written, a careful scrutiny of the original in the full light of the facts in that particular case leaves no ground for controversy as to the court’s meaning. It expressly declares that “the only question here is whether the ordinance, levying the tax under the charter of the city is consistent with the Fourteenth Amendment of the Constitution of the United States.” [240 U. S. l. c. 57.] The right to create taxing districts on the basis of the front-foot rule and according to the area rule is not questioned, provided the facts do not disclose palpable injustice to the property-owners. The ruling in any event is limited to a consideration of the application of the area rule. Numerous cases are cited as illustrative of the exercise of the power of special taxation by both the frontage and area rules by municipalities and of its recognition by tbe United States Supreme Court. In addition to the cases cited the following announce a like doctrine: St. L. & K. C. Land Co. v. Kansas City, 241 U. S. 419; Wagner v. Leser, 239 U. S. 207; Houck v. Little River Drainage Dist., 239 U. S. 254; French v. Barber Asphalt Paving Co., 181 U. S. l. c. 343; Webster v. Fargo, 181 U. S. l. c. 395; L. & N. Railroad Co. v. Barber Asphalt Paving Co., 197 U. S. l. c. 433; Martin v. District of Columbia, 205 U. S. l. c. 139.

From all of these rulings it is evident that the court did not intend to hold the charter of the city of St. Louis in regard to street improvement invalid, but simply decided that the ‘ordinance based upon the charter was invalid in that particular case on account of the unusual facts there presented so far as it was attempted to base the assessments on the area rule. The right of complaint on account of the injustice there evident being limited to persons thus assessed. In this holding no question is raised as to the validity of the ordinance authorizing the levy of taxes for special assessments on the frontage rule. However, this is not necessary to be discussed here. In short, the ruling in the Hast case considered and determined only the fact then before the court, and did not assume to determine where a special assessment was levied in conformity with the charter provision and with a proper regard for the rights of the property-owners that such assessment would be held invalid. There is, therefore, under this ruling no authority for the contention that the levy of the special assessments in the case at bar was violative of the Federal Constitution. In view of all of which we are of the opinion that the defendant is not entitled to the affirmative relief for which he prays. '

V. Defendant’s affirmative defenses demand consideration. He contends that. section 9848, Revised Statutes 1909, has not been complied with, requiring notice to be lodged with the city comptroller within ten days after the institution of suits to enforce special tax bills, which notice shall set forth when and in what court the proceeding has been filed. It is conceded that this notice was not given. The tax bills sued on were issued to the plaintiff February 27, 1908; section 9848 was adopted June 1, 1909 (Laws 1909, p. 704), and became operative under the Constitution August 16, 1909, or almost one and one-half years after the bills became liens on the defendant’s property and the rights of plaintiff had accrued. There is an absence of anything in this section indicating that it was intended to have a retrospective effect. Defendant contends, however, that as it affects only the remedy and is in the nature of a Statute of Limitations, it governs the proceedings in this case despite the fact that the cause of action existed before its enactment.

Under the facts defendant’s conclusion' as to the application of the section to this case is a non-seqmtur. The nature of the section is such that if operative it not only affects the remedy, but? as we held in Haag v. Ward, 186 Mo. l. c. 344, construing a similar provision, upon its enactment it became a part- of the procedure of the case. The tax bills became liens on defendant’s property upon the completion of the work, the ascertainment of the cost of same and the delivery of the bills to the plaintiff. [Secs. 24 and 25, art. 6, St. Louis Charter; Perkinson v. Weber, 251 Mo. l. c. 191.] These steps having been taken before the enactment of the section, plaintiff’s right to the enforcement of his lien became vested and consequently within the protection of the Constitution forbidding the impairment by legislation of vested rights. The enactment of the section created a condition precedent to the enforcement of the right not existing when the same became vested. Under such circumstancs we have held in no uncertain terms that a statute which takes away or impairs a right acquired under existing laws or creates a new obligation or imposes a new duty or attaches a new disability in respect to transactions or considerations already consummated must be deemed retrospective in its operation and hence violative of section 15 of article 2 of the State Constitution. [Leete v. Bank, 115 Mo. l. c. 198.] The St. Louis Court of Appeals, in construing section 9848, has held, in harmony with the rule announced, that the provisions of the section requiring the giving of notice within the time imposed creates an additional burden upon the plaintiff and purports to create a new defense available to defendant and hence requires that the section be given a prospective and not a retrospective application, although it may be remedial in its nature. [Gilsonite Con. Co. v. Greffet, 174 Mo. App. l. c. 180.]

VI. Holding as we do that section 9848 is not retrospective, a discussion as to the non-application of the limitations of section 9849 is unnecessary, as by parity of reasoning it is subject to the same rule of ¿ong^rue^on ag section 9848. However, it is contended by defendant that section 9849 constitutes a bar to plaintiff’s right of action in two years after the tax bills become due and payable. This contention ignores the fact that the section expressly provides that the limitation shall not apply until two years after the last installment becomes due. The charter (Sec. 25, art. 6) provides that (tax bills may be made payable in installments of not less than three nor more than seven in number, and when so payable the limitation does not expire until after the lapse of two years from the date when the last installment becomes due. These tax bills v, ere issued February 27, 1908, in seven installments. Notice of same was ¡served upon the defendant at the time of their issuance. The first installment became due and payable thirty days after notice of the issuance thereof; the second one year after such notice; the third, two years thereafter; the fourth, in three years; the fifth, four years; the sixth, five years; and the seventh, six years. This action was brought .to enforce their payment February 26, 1910. The last installment was not due at the time of the institution of this suit, nor at the time of the filing of the amended petition herein on May 23, 1910. Where a bill is payable in installments under the charter the limitation does not expire until after the lapse of two years from the date when the last installment becomes dne. Under neither the statute nor the charter is the action barred and we overrule this contention of the defendant. The St.- Louis Court of Appeals has so held in Fruin v. Meredith, 145 Mo. App. 586.

VII. One of the special defenses made by the defendant is that the original petition did not state a cause of action and that plaintiff’s right to recover must faü because the bar of the statute intervened between the time of the filing of the original and the amended petition. We .have shown that the action was not barred at the time of the filing of the amended.petition and, as was tersely said by the trial judge in his memorandum filed herein: “This argument of defendant’s may be brushed aside, because it is based on a premise not founded on fact.”

Conceding the insufficiency of the original petition, defendant’s argument that the amended" petition constituted a departure was waived by his answering to the merits and proceeding to trial. • To render the plea available that an amended petition constitutes a new cause of action the defendant should stand on his objection thereto and not waive same by answering over and going to trial. [Castleman v. Castleman, 184 Mo. l. c. 440; Schroeder v. Edwards, 267 Mo. l. c. 482.]

' A consideration of the numerous .assignments of error and of the record in its entirety discloses nothing prejudicial to the substantial rights of the defendant. It therefore follows that the judgment of the trial court should be affirmed, and it is so ordered.

Graves, G. J., Woodson and Revelle, JJ., concur; Blair, J., concurs in paragraphs 1 to 6 inclusive and result; Faris and Bond, JJ., not sitting.


source: Caselaw Access Project

license: Public Domain

text:
    SCHNEIDER GRANITE COMPANY v. GAST REALTY & INVESTMENT COMPANY, Appellant. SCHNEIDER GRANITE COMPANY, Appellant, v. GAST REALTY & INVESTMENT COMPANY.
    Four cases, numbered 16439, 16414, 19464 and 19465.
    In Banc,
    January 17, 1917.
    SPECIAL TAXES: Street Improvement: Assessment According to Area and Frontage: Severable. Where the tax bills for a street improvement separately state the amounts due under the front-foot rule, as well as those due under the area rule, and the charter authorizes a severable assessment, and the assessment based on the area without requiring an equal depth of the assessment district is held to be unequal taxation and therefore invalid, and the assessment according to frontage is held to be valid, the judgment holding both assessments valid will be reversed and the cause remanded with directions to the trial court to enter up judgment for the amount due based on the front-foot rule, with interest.
    Appeal from St. Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge.
    Reversed and remanded (with directions).

      Holland, Rutledge & Lashly and David Goldsmith for appellant.

      Hickman P. Rodgers and Rodgers & Koerner for respondents.
   WALKER, J.

Cases numbered 16439 and 16414 have heretofore been heard and determined in Division Number Two, and the judgments of the- trial court rendered therein were affirmed. On error to the Supreme Court of the United States there was a reversal of the judgment rendered on former hearings on the ground that the ordinance of the city of St. Louis there involved was invalid in providing for special assessments for street improvements based on the area of the property assessed without requiring an equal depth of the assessment district, thereby subjecting lot-owners having a greater depth of property than those adjoining them to unequal taxation. Upon the coming down of the mandate of the Supreme Court of the United States the cases above numbered were transferred to the Court in Banc, as well as cases numbered 19464 and 19465, in which the underlying ordinance and the taxing district were the same as in eases numbered 16439 and 16414. It is conceded by counsel for appellant that the rulings of the Supreme Court of the United States is determinative of cases 19464 and 19465, as well as. cases 16439 and 16414, and that “the facts in all of the cases are the same, the depth of defendant’s property the same and the alleged disproportionate taxation the same. ’ ’ Under these circumstances it follows that a like ruling is applicable here in all of these cases.

A reasonable construction of the> ruling of the Supreme Court of the United States is that it is limited to a holding of the invalidity of the ordinance in question only so far as the latter concerns an assessment of property for street improvement based on the area rule.

In discussing the United States Supreme Court’s opinion in Ruecking Const. Co. v. Withnell, (ante, p. 546), we reach a like conclusion.

The tax bills in the cases under review clearly define the amounts due under,the front-foot rule, as well as the area rule, and state the respective amounts due under each.

Our conclusions reached in cases numbered 16439 and 16414 have not, except as stated, been questioned by the Supreme Court of the United States. Holding as we do that our rulings are applicable' alike to all of these cases, there exists no reason or necessity for another hearing below of the matters at issue. That the tax for ■street improvement under the charter of the city of St. Louis is severable there can be no question (Collier Est. v. West Pav. Co., 180 Mo. l. c. 375), and as the amounts due under each, of the methods of taxation are separately stated in the tax bills, no difficulty can be encountered in determining the taxes due in each upon the frontage basis.

We therefore reverse and remand these cases with directions to the trial court to enter up judgment in each in the amounts heretofore found to be due based on the assessment under the front-foot rule, with interest thereon as authorized by section 25 of article 6 of the charter of the city of St. Louis, and it is so ordered. The original opinion rendered herein is modified only to distinguish the facts in regard to the status after the appeals to this court of the cases here determined and the motion for rehearing filed therein is overruled.

All concur except Bond, Williams and Baris, JJ., not sitting.


author: GRAVES, C. J.

text:
    THE STATE ex rel. J. E. THOMPSON, Judge of Probate Court, v. ALBERT D. NORTONI et al., Judges of St. Louis Court of Appeals.
    In Banc,
    January 17, 1917.
    1. CERTIORARI: Probate Judge as Relator: Sole Party. Where the Court of Appeals has rendered judgment, in a mandamus brought originally in that court, against a probate judge, requiring him to appoint the widow administratrix of the decedent’s estate, he has such interest in the controversy as entitles him to the writ of certiorari from the Supreme Court. When a party has such an interest, in a controversy that under the law he must be made a party thereto for a determination thereof, he has sufficient interest (after judgment against him) to invoke the writ of certiorari, and thereby test the validity of the judgment.
    2. -: Motion to Transfer. It is not necessary to file in the Court of Appeals a motion to transfer after a motion for a rehearing has been overruled, before applying to the Supreme Court for a writ of certiorari.

    3. ADMINISTRATION: Widow’s Right to Appointment: Mandamus. The probate court should appoint the widow administratrix unless she is precluded from acting under some provision or rule of law; and mandamus will lie to compel the appointment of a person entitled thereto under Sec. 15, R. S. 1909. But the disqualifications mentioned in section 14 are not the only things that will prevent the widow’s appointment.
    4. -: -: Waiver: Ante-nuptial Contract. The widow may waive her right to administer upon her husband’s estate, and this may be done by contract or in pais.

    5. -:-:-:-: Adjudicated by Probate Court. The question of whether the widow by an ante-nuptial contract, or otherwise, has waived her right to administer her husband’s estate is a judicial question for the determination of the probate court, when she applies for appointment and her application is opposed on that ground; and where the probate judge has adjudged that she has waived her right, that judgment cannot be reviewed by mandamus, and the Court of Appeals cannot by a mandamus writ compel him to appoint her.

      Certiorari.

    Record quashed.

      W. C. Hughes, Jones & Hayden, Hostetter & Haley and Pearson & Pearson for relator.
    (1) The St. Louis Court of Appeals’ action and decision, in so attempting to control and direct relators’ judicial acts and discretion, is outside of, and beyond its jurisdiction, and in 'direct conflict with not only tbe last two controlling decisions of. the Supreme Court, to-wit; State ex rel. v. Holtcamp, 185 S. ~W. 204, and State ex rel. v. Wurdeman, 187 S. W. 259, but also four others of a more remote date, to-wit; State ex rel. v. St. Louis Court of Appeals, 87 Mo. 376; State ex rel. v. McGowan, 89 Mo. 157; State ex rel. v. Allen, 92 Mo. 24; State ex rel. v. Broaddus, 207 Mo. 121; and one decision of the St. Louis Court of Appeals, to-wit; In re Estate of Evans, 117 Mo. App. 635. (2) 'A judicial act or discretion cannot be controlled or directed by a writ of mandamus. State v. Holtcamp, 185 S. W. 204; State v. Wurdeman, 187 S. W. 269. (3) Errors cannot be corrected by mandamus. ‘ Tbe judgment of the probate court of Pike County might not have been correct; and it doubtless was not such a judgment as tbe St. Louis Court of Appeals would have rendered in an original proceeding before it; but, tbis did not give tbe St. Louis Court of Appeals tbe right, or jurisdiction, to either review or correct said judgment. In re Breck, 252 Mo. 327; State ex rel. v. Johnson, 138 Mo. App. 313.

      Ed. Corwine, D. A. Ball and Richard H. Norton for respondents.
    (1) Relator has no interest in tbe subject-matter of tbe litigation and is not a proper party to maintain certiorari. R. S. 1909, sec. 1729; State ex rel v. Staten, 187 S. W. 44; Davison v. Otis, 24 Mich. 25; People v. Leavitt, 41 Mich. 470; Blodgett v. McVey, 131 Iowa, 552; Colden v. Botts, 12 Wen. 234. The same rule is established in the law of mandamus which is analogous in tbis respect to tbe law of certiorari. High, Extra. Rem. (3 Ed.), sec. 33; State v. Commissioners, 4 Kan. 261; Mossy v. Harris, 25 La. Ann. 623; Gregory v. High, 29 Ind. 527; People v. Board, 18 Barb. 567. A writ of certiorari is a new suit. It is not a part of tbe old action, but resembles in nature a writ of error,' which is an entirely new proceeding, independent of tbe case which it reviews. Macklin v. Allenburg, 100 Mo. 343. (2) But under the probate law, especially tbe first part of Sec. 15, R. S. 1909, there is no discretion vested in tbe probate judge when tbe party applying for administration is not within tbe disqualifications of section 14. R. S. 1909, secs. 14-15; State v. Thompson, 187 S. W. 804; State v. Collier, 62 Mo. App. 38. (3) Relator is not entitled to maintain tbis writ of certiorari under tbe provisions of tbe Constitution (Amendment 1884, sec. 6) without applying first to tbe Court of Appeals for a transfer of tbe cause to tbe Supreme Court upon the ground of conflict with some of its decisions, or with some previous ruling of the other Courts of Appeals. Constitution, Amendment 1884,' sec. 6; Nichols v. Court, 1 Mo. 357; State v. Court, 41 Mo. 598. (4) The opinion of the Court of Appeals in the mandamus case against the relator is not in conflict with any decision of the Supreme Court or of the Courts of Appeals, but on • the contrary is in harmony with those cited on that subject by learned counsel for relator. Mandamus has a familiar jurisdiction to compel officers charged with a definite duty, either by statute or other law, to obey that law and to perform that duty. It is available also to correct .abuse of discretion where there is discretion; as where a court is bound by law to a certain duty, but refuses to perform it, without evidence to warrant its refusal. State v. Collier, 62 Mo. App. 38; State v. Thompson, 187 S. W. 804; Hall v. Court, 27 Mo. 329'; State v. Rombauer, 44 Mo. 590; State v. Lewis, 76 Mo. 370; State v. Fraker, 166 Mo. 130; State v. Court, 41 Mo. 221; McCleary v. Adsock, 2'06 Mo. 550;' State .v. Cook, 187 S. W. 1122. (5) Even if the subject of a waiver of the right to administer could be made an issue (which we deny), as to persons under the first class mentioned in Sec. 15, R. S. 1909, namely, “the husband or wife,” upon application for letters testamentary, the record here discloses that there is no testimony of any agreement by Mrs. Scanland which wpuld 'constitute such a waiver under the laws and decisions in Missouri. R. S. 1909, sec. 362; Perry v. Perryman, 19 Mo. 469; Johnson v. Johnson, 23 Mo. 561; Mack v. Heis's, 90 Mo. 578; Farris v. Coleman, 103 Mo. 361; Rice v. Waddill, 168 Mo. 113; Morgan v. Stewart, 173 Mo. 207; King v. King, 184 Mo. 99; Lowe v. Lowe, 146 S. W. 100.
   GRAVES, C. J.

Certiorari to the St. Louis Court of Appeals. The pertinent facts are few and simple. Charles B. Scanland died in Pike County, Missouri, May 31, 1916. Shortly thereafter the widow Anna Estella, applied for letters of administration upon the estate. Relator herein was and is the probate judge of Pike County. Objections were interposed as to the appointment of the widow as administratrix. In the course of the investigation it appeared from the evidence that there was an ante-nuptual agreement between the deceased, and the widow. The probate court refused to appoint the widow as administratrix, and in his findings and judgment, among other things, found and adjudged:

“The court doth further find from the evidence that the deceased and the applicant, Anna Estella Scanland, just before their marriage, entered into and executed a marriage contract by the terms of which the applicant agreed and contracted to receive a stipulated sum of money before their said marriage and an annual stipulation thereafter during said marriage or so long as the said applicant should continue the wife of deceased, in lieu of all marital rights in the' estate of deceased, and thereby relinquish all right or interest in the estate of the decedent. . . .
“And the court doth further find and adjudge from the evidence that the applicant waived any right she might otherwise have to administer up on the estate of the deceased by and through the marriage contract by her and the decedent executed and entered into previous to their marriage.
“Wherefore the application of'the said Anna Estella Scanland to be appointed administratrix of the estate of the said Charles B. Scanland, deceased, is denied and refused by the court.”

The probate judge then appointed the public administrator to take charge of the estate. Thereupon the said Anna Estella Scanland brought mandamus proceedings in the St. Louis Court of Appeals to compel the relator here, as probate judge of Pike County, to appoint her as administratrix, of her husband’s estate.

The relator here, among other things, in his return set up in the Court of Appeals his judgment theretofore entered in the probate court, the material portions of which we have quoted supra. The St. Louis Court of Appeals, notwithstanding the return aforesaid, granted the writ of mandamus, directing relator here to vacate his order appointing the public administrator as administrator of the estate, and further directing him to appoint Anna Estella Scanland as administratrix of such estate. As against this judgment and the opinion upon which it is predicated our writ of certiorari is invoked. Other matters will be noted in the course of the opinion.

I. It. is urged in the first place that the relator has no such interest in the controversy as entitles him to invoke our writ of certiorari. This position of counsel is untenable. The proceeding in the St, Louis Court of Appeals was one against the relator here and none other. The writ issued in that case was directed against-him, and none other. The judgment entered in that case was against him and none other. It would be a very singular condition if it could be said that the respondent in a mandamus proceedings is so interested that he is made the sole party, and then after judgment against him his interest at once vanishes so that he cannot question the validity of that judgment on certiorari. In other words, his interest is such that he is the necessary party to the suit, yet when he is beaten in the suit, his interest vanishes so that he cannot gainsay the validity of the record upon which the judgment against him is founded. This is one of the contentions here. It is untenable absolutely. When a party has such an interest in a controversy, that under the law he must be made a party thereto (in this case the sole party thereto) for a determination of the controversy, it should not be said that he has not sufficient interest (after judgment against him) to invoke our writ of certiorari, and thereby test the validity of the judgment. In the particular case, if relator could not question the judgment, no other person could, because he was the sole respondent in the mandamus proceeding, and any other party would be a stranger to that record. We are cited to State ex rel. v. Reynolds, 390 Mo. 578; but that case touches no part of the question.

It is urged that the suing out of a writ of certiorari is a new action, and we are cited to Macklin v. Allenberg, 100 Mo. l. c. 343. That case discusses a writ of error rather than a writ of certiorari, but this is immaterial. Grant it that the suing out of the writ is a new action, the situation as to interest is not changed. The purpose of the new action, so far as this relator is concerned, is to rid himself of a judgment against him. If he hasn’t an interest in that judgment no person has, because he is the sole person against whom the judgment is entered. We can but conclude that the relator had the right to apply for and secure our writ of certiorari.

II. A further preliminary mhtter should be determined. In respondent’s brief it is said:

“Relator is not entitled to maintain this writ of certiorari under the provisions of the Constitution (Amendment 1884, sec. 6) without applying first to the Court of Appeals for a transfer of the cause to the
Supreme Court upon the ground of conflict some of its decisions, or with some previ- - ous ruling of the other Courts of Appeals.”

We are all familiar with this section. It provides: “When any one of said Courts of Appeals shall in any cause or proceeding render a decision which any one of the judges therein sitting shall deem contrary to any previous decision of any one of said Courts of Appeals, or of the Supreme Court, the said Court of Appeals must, of its own motion . . . certify and transfer said cause or proceeding ... to the Supreme Court,” etc.

Nothing in this section required the relator to file a motion to transfer the case here. The judgment in the Court of Appeals was by a united court. By motion for rehearing the court’s attention was called to the matters now urged, but this motion was overruled. The Court of Appeals was not left without notice of the things now urged against its judgment and opinion. The cases cited do not cover the question. It is not necessary to file a motion to transfer, after motion for rehearing has been overruled, before applying to this court for a writ of certiorari. The relator did all that he was required to do.

III. The' gist of this case lies within a small compass. Mrs. Scanland applied for letters of administration upon, her husband’s estate. Her application was opposed by some heirs at law. In the course of the hearing there was evidence of an ante-nuptual agreement. The probate court heard this evidence, and then found therefrom, thus:

“And the court did further find and adjudge from the evidence that the applicant waived any right she might otherwise have to administer upon the estate of the deceased by and through the marriage contract by her and the decedent executed and entered into previous to their marriage.

This appears in the return filed in the St. Louis Court of Appeals. There were other findings as to her character and competency, but we put them aside. These also appeared in the return in the St. Louis Court of Appeals. In other words, the case there was one upon pleadings only and a motion for judgment on same. The Court of Appeals mentions this finding and judgment of the probate court in its opinion, but it would be immaterial whether it did or not, because it is in the very pleadings upon which the opinion and judgment is founded. It does not come by way of bill of exceptions, but is the record proper in the case, which record is before us by our writ of certiorari. On this return or record, the court by its opinion and judgment, directed a permanent writ of mandamus to be awarded directing the relator here, the respondent there, to appoint Mrs. Scanland as administratrix. The question is, does this ruling contravene rulings of this court1? We think so, for reasons we will assign. , 1

TV. The Court of Appeals properly announces the general rule, that under section 15, Revised Statutes, 1909, the probate court should have appointed the widow as administratrix, unless she was precluded from acting by some provision or rule of law. The Court of Appeals also properly rules that generally speaking mandamus will lie to compel the appointment of a person entitled thereto under section 15, which section reads:

“Letters of administration shall be granted-: First, to the husband or wife; secondly, to those who are entitled to distribution of the estate, or one or more of them, as the court or judge or clerk in vacation shall believe will best manage-and preserve the estate.”

We have held mandamus to be a proper remedy, State ex rel. v. Fowler, 108 Mo. 465. It runs amuck, however, when it rules that the- only things which will prevent her appointment are the disqualifications mentioned in section 14, Revised Statutes, 1909, which section reads:

“No judge or clerk of any probate court, in his own county, or his deputy, and no male person under twenty-one years of age, or female person under eighteen years of age, or of unsound mind, shall be executor or administrator. No married woman shall be executrix or administratrix, nor shall the executor of an executor, in consequence thereof, be executor of the first testator.”

There is such a thing as waiving the right to adminis- ■ ter. This may be done by contract, as indicated in. the case at bar, or it may appear from matters in pais, as in State ex rel. v. Holtcamp,- 267 Mo. 412. One entitled to administer cannot be compelled to administer, so the law denominates it a personal privilege which may be waived.

In the ease at bar the probate court found and adjudged that the widow had waived the right to administer, and yet with this solemn adjudication before it, in the return to the mandamus, the Court of Appeals made the writ permanent, and directed the appointment of the widow. This ruling was squarely in the face of Lie unanimous ruling of our brothers of Division Two ' - State ex rel. v. Holtcamp, supra, 267 Mo. l. c. 424, whereat, in discussing the question of waiving the right to administer, it was said:

“We are, therefore, of the opinion that the probate court was not only called upon to determine the legal effect of the resignation filed in Ohio, but also the question of fact as to what relator’s intentions were, and how far he had renounced in pais; and, in this connection, it had a perfect right to weigh and consider all of relator’s acts and conduct. This required the exercise of judicial discretion, and it is too well settled to even warrant the citation of authorities that such discretion cannot be controlled by mandamus.”

So in the case at bar, the question as to whether or not the widow by contract or otherwise had, waived her marital right to administer, was a judicial question for the determination of the probate court. When it acted its judgment was not for review upon mandamus. Judicial acts, completed as here, are not the subjects of mandamus proceedings. To illustrate, take the very statute, cited by the court, section 14, supra. Suppose the widow had applied. Suppose there were objections to her appointment, and the probate court upon hearing the facts, found that the widow was insane. Would it be said that such court could be compelled by mandamus to appoint the widow, with such an adjudication pleaded in the return! The determination would be a judicial act and not subject to review by mandamus. There can be no question that a woman by an ante-nuptual agreement can waive her right, to administer. That question of waiver is to be determined by the probate court to whom she applies for letters. If not, there is no place for its determination. The matter of whether there has been a waiver of the right is a judicial question, and as said in the Iloltcamp case, supra, the judgment can’t be controlled by mandamus. That mandamus will not lie under such situation is also ruled in State ex rel. v. Wurdeman, 187 S. W. 259, where Bond, J., says:

“In view of the foregoing constitutional and statutory provisions, the conclusion is inescapable that the report of the grand jury in the present proceeding presented matter requiring the exercise of the judicial faculty on the part of the circuit judge in determining whether it should be expunged or permitted to remain among the files and record of the court. But it is elementary that any decision which he might make in the exercise of his judicial discretion is one which cannot be directed by writ of mandamus from any court. The judge may be compelled to exercise his jurisdiction and make a decision or render a judgment, hut the kind of decision or the nature of his judgment, resting on his judicial discretion, cannot he controlled by this writ.”

We grant it, that if the return in the mandamus case had only disclosed a refusal to appoint the widow, without the showing of an adjudication upon the question of the waiver, a different situation might prevail. But it was for the probate court to determine the question of waiver upon the evidence before it, and not for the Court of Appeals to attempt to determine that question in a mandamus proceeding. It may be that some other probate judge might have rendered a different judgment on the question of waiver, with the facts found in this case, hut that is not a matter for consideration in mandamus. It may.be unfortunate that the statute provides for no appeal from the probate court in such cases, but the remedy is with the law-makers, and not with the courts.. Our cases have reached the limit in upholding mandamus to compel an appointment of the party entitled by virtue of the statute, but we have not gone so far as to hold that if, upon the application of the party entitled, a question arises which requires judicial determination, mandamus will nevertheless lie.

The opinion of our learned brothers contravene our opinions in the Holtcamp and Wurdeman cases, supra, as well as other cases we might cite. The court was wrong in proceeding as if they could determine the question of waiver in a mandamus proceeding.

Other matters found by the probate court we need not •discuss. But upon them the probate court had no right to refuse the application of the widow. We have selected the one vital question.

The judgment and record of the St. Louis Court of Appeals should be and is quashed.

All concur, except Bond, J., who dissents.


author: REVELLE, J.

text:
    MAGGIE L. LUKENS v. INTERNATIONAL LIFE INSURANCE COMPANY, Appellant.
    In Banc,
    January 17, 1917.

    1. rarSUBANCB POLICY: Place of .Contract. Where the application for an insurance policy was taken in Illinois, the policy delivered to the insured there and accepted hy him there, and thereupon payment of the premium was made there, the contract was an Illinois contract, notwithstanding the company was a Missouri corporation, with its home office in Missouri, and the policy was signed by its chief officers and made payable at the home office; and the policy being an Illinois contract, is governed by the laws of Illinois.
    2. -: -: Suit in Equity: Kes Adjudicata. A suit in equity brought in Illinois by an insurance company against the beneficiary of a policy to compel specific performance of an agreement to accept a certain sum in settlement of all claims upon the policy, and to enjoin her from prosecuting any action at, law upon the policy, in which it was decreed that the alleged agreement was void for lack of mutuality, that there was no equity in the case, that the beneficiary has a complete remedy at law, and that the policy was a Missouri contract, and the bill is: dismissed, was not an adjudication that the policy was a Missouri contract, and is not binding upon the Missouri courts when an action at law is brought upon the policy; for the validity of the alleged agreement did not depend upon the question of whether the policy was an Illinois or a Missouri contract, and the company’s liability on the policy was not involved in that suit.
    3. BES ADJUDICATA: Test. The test of whether or not a former suit in equity is res adjudicata of an issue arising in a subsequent action at law is: Do both actions embrace the same issue, require the same evidence, and, though in different form, call for substantially the same result?

      4. INSURANCE POLICY: Suicide: Illinois Contract. The Missouri statute (Sec. 6945, R. S. 1909) eliminating from an insurance policy a clause avoiding the policy in case of suicide has no extra-jurisdictional force, and is not available to the beneficiary to defeat suicide as a defense in an action at law brought in the Missouri •courts upon a policy which is an Illinois contract. The statute is but an inhibition against making insurance contracts in Missouri with citizens of Missouri in which the insurer is relieved of liability in the event the insured commits suicide. It does not affect contracts made in other States which contain clauses avoiding the policies in case the insured commits suicide, although the insurer is a Missouri corporation.
    5. -: -: -: Constitutionality. The Missouri statute which declares that the fact that the insured committed suicide, unless contemplated at the time he made application, shall not avail as a defense in an action on the policy, even when held not to apply to contracts made in other States, - does not violate that part of the Fourteenth Amendment which provides that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
    Appeal from Jackson Circnit Court. — Hon. E. E. Porter-field, Judge.
    Reversed and remanded.

      Humphrey, Boosley & Beeves and Edward P. Wilson for appellant.
    (1) ¡If Prank E. Lukens committed suicide, then bis beneficiary, tbe plaintiff, never bad a cause of action against defendant: first, because tbe contract of insurance sued on was lawfully made in tbe State of Illinois; second, because tbe contract of insurance did not insure against tbe contingency of suicide; and third, because tbe insured committed suicide. (2) The constitutional question lodged by respondent should have been raised on the pleadings by replication as it is well settled law that in so grave a matter as a constitutional question it should be lodged in tbe case at tbe earliest moment that good pleadings and orderly procedure will admit under tbe circumstances ©f the given case, otherwise it will be waived. Lobmeyer v. Cordage Co., 214 Mo. 689. Defendant grounded an affirmative defense on a statute that plaintiff contended was unconstitutional, therefore she should have pleaded its unconstitutionality in the reply. Lohmeyer v. Cordage Co., 214 Mo. 690; Dubowsky v. Binggeli, 258 Mo. 202; State v. Gamma, 215 Mo. 100; Howell v. Sherwood, 242 Mo. 513; Hartzler v. Met. St. Ry. Co., 218 Mo. 564; Hays v. Hogan, 180 Mo. App. 237, 253. (3) Plaintiff was denied no right by the provision of section 6945 complained against by reason of the fact that she was a resident of Illinois. Had she been a citizen of Missouri the statute would operate just the same. Chambers v. Railroad, 207 U. S. 142. In this clause the legislative enactment in question put a condition on the policy, which only applied to citizens of Missouri, and. a State may enact statutes providing conditions for recovery on contracts. 8 Cyc. 1049; Ins. Co. v. Daggs, 172 U. S. 557; Daggs v. Orient Ins. Co., 136 Mo. 382. Section 2, article 4, Federal Constitution, is intended to prohibit the States from denying to the citizen of another State any of the privileges and immunities enjoyed by its own citizens by virtue of their being citizens. 8 Cyc. 1037; Paul v. Virginia; 8 Wall. (U. S.) 168.
    » George, J. Kuebler and Scarritt, ScarriU, Jones é Miller for respondent.
    (1) The issues of law and fact involved'in this appeal were judicially determined in favor of the plaintiff herein and against the defendant herein in the circuit court of Cook County, Illinois, a court of competent jurisdiction, in a suit of the appellant against the respondent. It was there found and adjudged that the contract (?f insurance sued on herein was executed in the State of Missouri and that its construction is subject to the laws-of that State; that in the law action pending in the State of Missouri (being the suit at bar), the alleged suicide of the insured does not constitute a defense; that the amount due under the said contract of insurance is fixed and certain and that upon the face of the policy the amount due is two thousand dollars; that the said court in Illinois had full jurisdiction of the subject-matter of and the respective parties to the said cause therein pending, and that the complainant therein, defendant here, is not entitled to the relief sought, viz: the cancellation and surrender of the policy here sued on; that the report of proofs taken hy the master in chancery therein he and the same was adopted as the proofs of the respective parties thereto; and that the said bill of complaint was adjudged to be and it was thereby dismissed for want of equity, and that the defendant recover her costs therein incurred. And that judgment being plead in the reply as res adjudicata and being duly proven is a conclusive determination against the defendant of the alleged defense of suicide set up in the answer. Barber Asphalt Pav. Co. v. Field, 132 Mo. App. 628; Gardner v. Gas & El. Co-154 Mo. App. 666; Choteau v. Gibson, 76 Mo. 45; Exposition & Driving Park v. Kansas City, 174 Mo. 442; Reynolds v. Hood, 209 Mo. 620; Tool Co. v. Spring Co., 146 Mo. App. 30; Pierce v. Pierce, 149 Mo. App. 416; Leet v. Gratz, 137 Mo. App. 208; Railroad v. United States, 168 U. S. 1; Hopkins v. Lee, 19 U. S. (6 Wheat.) 113; Mining Co. v. Mining Co., 157 U. S. 691; New Orleans v. Bank, 167 U. S. 396. (2) The suicide statute before amended was valid. By that statute its benefits were conferred upon and enjoyed equally and alike by the owners of the policies of insurance issued by companies doing business in this State without any discrimination between such owners by reason of citizenship, residence, or otherwise. And that law so written has been uniformly adjudged to be constitutional and valid. Jarman v. Indemnity Co., 104 Fed. 638; Indemnity Co. v. Jarman, 187 U.S. 197; Schmidt v. U. O. F., 228 Mo. 675; Whitfield v. Ins. Co., 205 U. S. 489. (3) The Act of April 15, 1899 (Laws 1899, p. 246), which purports to amend the general statute above referred to by inserting therein after the words, “doing business in this State,” the following words, namely, “to a citizen of this State,” is unconstitutional and void: (a) It is partial to and discriminates in favor of the citizens of Missouri as against citizens of other States, contrary to the guaranties of the second section of article 4 of the United States Constitution, providing that the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States. Blake v. McClung, 172 U. S. 239 ; Sully v. Bank, 178 U. S. 289; Maynard v. Granite State P. Assn., 92 Fed. 435; Johnstone v. Kelly, 7 Pennewill (Del.), 119. (b) It is an attempt on the part of the State of Missouri to abridge the privileges and immunities of citizens of the United States and so deny to persons within its jurisdiction the equal protection of the laws, contrary to the provisions of the F'ourteenth Amendment to the Constitution of the United States. Ex parte Virginia, 100 U. S. 346; Barbier-v. Connelly, 113 U. S. 31; Durkee v. Janesville, 28 Wis. 471; Sams v. Bailroad, 174 Mo. 69; State ex rel. v. Hermann, 75 Mo. 353; State ex rel. v. Julow, 129 Mo. 177; State v. Busch, 170 Mo. 117; Houston v. Pub. Co., 249 Mo. 332. (4) The amendatory Act of 1899 being unconstitutional and void, the previous statute, Sec. 5855, B. S. 1889,, remains the law of this State, and under this law the alleged suicide confessedly is no defense. Lexington v. Bank, 165 Mo. 681; People v. Butler St. F. & I. Co., 201 111., 236; "Wilkinson v. Bd. of Children’s Gdns., 158 Ind. 1; Barker v. Potter, 55 Nev. 25; Whitlock v. Hawkins, 105 Va. 242. (5) The contract of insurance sued on and all of the issues, in the case are to be construed and determined under and' in accordance with the laws of the State of Missouri and not under the laws of. Illinois' or any other State. That this proposition is true is self-evident from the simple fact that no statute or law of Illinois or any other State is pleaded or relied upon by the defendant, nor is there any evidence in the record tending to show what is the law of any such State. This court, therefore, is not confronted with a claim that the law of Illinois or any other State is different from the law of Missouri and that under such foreign law defendant enjoys rights and authority it cannot have under the laws of this State; and there being no issue raised in that respect and no evidence of any variance between the laws of Missouri and Illinois, this court must of necéssity apply the .law of the forum in the determination of the controversies now presented. 5 Thompson on Law of Corporations, sees. 5968, 5972; Day v. Buggy Co., 57 Mich. 146. The suicide clause of the contract' being a violation of the positive legislation of this State will not be enforced by the courts of this State. Donovan v. Pitcher, 53 Ala. 411; Schllee v. G-uckenheimer, 179 111. 593; Faulkner v. Hyman, 142 Mass. 63.

      Note. — Opinion filed December 21,1916. Motion for rehearing filed. Motion overruled January 17, 1917.

   REVELLE, J.

This is an action by the beneficiary on a policy of insurance for $2000, dated August 35, 1911, and issued by the appellant. The judgment below, was in favor of respondent for the full amount thereof, together with interest and $600 for damages and attorneys’ fees on account of vexatious refusal to pay, the aggregate being $2690.

At the trial, and conformable to proper allegations in its answer, appellant offered evidence tending to show that the insured committed suicide within one year from the ^date of the policy. This respondent moved to strike from the record on the ground that the suicide clause in the policy of insurance was of no force and effect, because that part of the suicide statute of Missouri which limits the benefits thereof “to a citizen of this State” is unconstitutional, in that it denies to persons not citizens of this State the equal protection of the law and does not afford citizens of other States the privileges and immunities which it provides for its own citizens. This motion was sustained and the evidence tending to show suicide was rejected.

The policy contained the following provision:

“Suicide. — In case of suicide committed while sane or insane within one year from the date on which this insurance begins, the limit of recovery hereunder shall be the premium paid. ’ ’

Such facts as are pertinent will be found in connection with the discussion of the subject to which they are material.

I. The first question challenging attention is whether the contract sued upon is governed by the laws of Missouri or Illinois, and this depends upon where ^ was finally consummated. In determining this it should be borne in mind that the action is on a policy of insurance, and not upon a contract for a policy of insurance.

The record discloses that the defendant company is a Missouri corporation and. has its principal office of business in St. Louis. The insured, as well as the beneficiary, who was his wife, resided in Chicago, Illinois, at the time the policy contract was executed. One C. E. Scott was the general agent for the defendant company and the city of Chicago was within the territorial limits of his authority. He testified that a note for $193.70 was given him in settlement for the policy, and that when same was past due, $18.70 thereon was paid to him by the insured, whereupon this note was delivered to the insured, and another for $175 was executed by the insured and delivered to him (Scott); that' in the aggregate the sum of $188.70 was actually paid for and on the policy and that the same was paid to him. The policy is dated August 15, 1911, and the first premium note was executed about August 26, 1911. The policy expressly provided, in the consideration 'clause, for the payment of $193.70 in advance and on its delivery. Respondent, beneficiary and wife of the insured, testified as follows:

“We had lived in Chicago seventeen years. We had a home there and that was his residence . . . knew he had insurance in the International Life Insurance Company before he died. I knew that because a man came one day and rang my bell and called up the tube and asked me some questions and I asked him who he was and he said he was from a, life insurance company, and when Mr. Lukens came home I told him about it and said: ‘Who wás he?’ and he says: ‘I am taking out some life insurance.’ I did not see the man, but it did not sound like Mr. Scott’s voice. I did not know him. He said he represented the International Life Insurance Company. I know that my husband got the policy in Chicago. I do not know where it was delivered to him. I learned the fact that he had applied for the insurance .' . . Mr. Scott does business for the International Life Insurance Company at Chicago and my husband did some business with him in the way of introducing applicants, and the door of the office had, ‘Frank E. Lukens, Special Agent for the International Life Insurance Company.’ ”

The policy recites that it is “signed by its president and secretary at the Home Office of the company in St. Louis, Missouri,” and further that it is issued “in consideration of the application herefor, which application is made a part hereof; the payment of $193 and 70/100 in advance on the delivery of this policy . . . and the further payment of a like amount either at the Home Office of the company at St. Louis, Missouri, or upon delivery of a receipt signed by the secretary and countersigned by an authorized agent of the company.” It bears a certificate showing that in accordance with the general laws governing Missouri insurance companies it had been duly registered with the Missouri Insurance Department.

Looking at these facts in the light of their surrounding circumstances and absent other and countervailing testimony, we are of the opinion that the reasonable inference to be deduced therefrom is that the application was taken and the policy delivered in Chicago. The delivery of the policy was essential to the completion of the contract and was a prerequisite to an action thereon. By this we mean there must have been a filial acceptance by both parties of the terms thereof, and in this case such final acceptance did not take place until the company presented the policy to the insured and he made payment and accepted it. These last and essential acts took place, as we view the record, in Chicago. Under-such circumstances and the uniform law governing the subject, the contract was an Illinois contract, and this notwithstanding the fact that the appellant is a Missouri corporation with its chief offices in this State and that the policy was signed by its officers and made payable at its home office: [Cravens v. Insurance Co., 148 Mo. 583; Horton v. Insurance Co., 151 Mo. 604; Lange v. Insurance Co., 254 Mo. l. c. 503; Head v. Insurance Co., 241 Mo. 403; Insurance Co. v. Head, 234 U. S. l. c. 155.]

Respondent, however, contends that this particular question has been judicially determined in another action between the same parties and that a decision therein conclusively determined it in her favor and against the appellant.

Following the death of the insured, the appellant here filed in the circuit court of Cook County, Illinois, wherein Chicago is located, a suit against the respondent in which it sought to compel specific performance of a certain agreement alleged to have been entered into by the parties and to enjoin the respondent here from commencing or prosecuting any action at law upon the policy now sued upon. The bill alleged the issuance and delivery of the policy; the Illinois residence of the insured and his wife; the death of the insured by suicide; and an oral agreement whereby respondent would receive the sum of $400 in full settlement, discharge and satisfaction of all her claims under and by virtue of the policy. It further alleged respondent’s failure and refusal to carry out the terms of the contract and her threat to commence an action at law on the policy and thereby put it to great cost and expense in defending such action. It also alleged that in accordance with the suicide clause contained in the policy its actual liability thereon was $118.70, the amount paid by the insured in the way of premiums. The answer denied the alleged agreement and that the death of the insured was by suicide. It further alleged that the contract was finally ratified by the' appellant company in the State of Missouri and was therefore governed by the laws of the 'State of Missouri; and that under such laws the suicide clause in the policy was wholly null and void. It then charged that the attorney representing the company and with whom the alleged oral agreement was made, was “an unusually capable and erudite lawyer and particularly well qualified to determine the rights and liabilities of various parties under the terms of a contract or policy of insurance;” and that said attorney had represented to her that the contract was an Illinois contract and must be accordingly interpreted, and that even if it were construed as a Missouri contract, the Missouri law eliminating suicide as a defense in a suit on an insurance policy, would be unavailable, since it applied only to citizens of Missouri. The answer further alleged that the complainant had a full, complete and adequate remedy at law and therefore was not entitled to maintain its cause in equity; that the alleged oral agreement was lacking in mutuality and was unconscionable, and for that reason specific performance should be denied.

After the issues were made the matter was referred to a master in chancery, who, after hearing the evidence, reported both his findings of fact and law. As a matter of fact it was found that the policy was delivered to the insured in Chicago by the company’s local agent; that the insured executed a promissory note for $193.70 in payment of the first yearly premium and that subsequently $118.70 of this amount was actually paid; that the insured and his wife were at all the times mentioned citizens of Illinois and were not during any of said period citizens of Missouri; that there was pending at the time, in the State courts of Missouri, an action at law to enforce the payment of the full amount mentioned in the policy.

Upon these .facts it was then declared, as a matter of law by the master, that the policy contract was executed in the State of Missouri and its construction subject to the laws of that State, and that in the action of law which it found was then pending in the State courts of Missouri, suicide could not be urged as a defense; that the complainant had an adequate remedy at law in case there was any just cause for not paying the full amount of the policy.

It was further found, both as a matter of fact and law, that no such legal agreement, as the bill alleged, had been entered into — that it was lacking in mutuality, was without consideration and unenforcible. It then found that the equities of the - case were with the respondent and that the complainant was not entitled to the equitable relief sought. Upon a consideration of the report and exceptions thereto the court found: “that the equities of this case are with the defendant and that the plaintiff is not entitled to the relief sought.” The judgment then recites “that the complaint is dismissed for the want of equity.”

At the time the findings in this case were made and the decree rendered, the case now under review was pending, and the master in that cause expressly found that complainant here had an adequate remedy in a case at law, such as is this, if there were any just cause for not paying the full amount of the policy.

We do not think that upon such a record the question here presented was so judicially determined as to make it res adjudieata.

This action did not involve the question of respondent’s liability on the contract here sued upon; it was founded upon an alleged subsequent and independent agreement which itself was made the basis for the relief sought. If such agreement as was set out in the complaint was lawfully entered into as alleged, but which the master found was not the case, its validity did not depend upon whether the insurance policy was a Missouri or Illinois contract, or whether the company’s original liability was the amount stated in the policy, as now contended by respondent, or the amount of the premiums paid, as contended by appellant.

Under the issues and findings of fact, the decision there could be quite correct without any regard to these questions of .law. The relief sought was denied for want of equity and could properly have been so on the sole ground that in the suit here pending and which was then pending, the matters relied upon for equitable relief, were available as a legal defense. In fact this is particularly referred to by the master in connection with his finding that the complainant had an adequate remedy at law. The mere fact that the question of where the contract was executed was reported upon by the master, or even deemed by him of some importance in determining the issues there involved, does not amount to such an adjudication thereof that in another suit based upon another contract and where the issues are altogether different, the same becomes conclusive. It does not affirmatively appear that the court concurred in the legal conclusion of the master thus reported. The proceedings there were no more determinative of this question than of each other issue which the pleadings in this ease have made.

The master’s findings of fact clearly show the error of his legal conclusion on where the contract was executed, since such findings are such as to make the contract an Illinois contract, but this is unimportant because in passing upon the plea of res adjudicata, the question is not whether the court decided the point involved right or wrong, but the test is- — -Do both actions embrace the same issue, require the same evidence, and, though in different form, call for substantially the same result?

"We have carefully examined the cases cited by respondent but find nothing therein contained which is in substantial conflict with the views here expressed.

II. We come now to the questions upon which this case was largely determined nisi. Section 6945, Revised Statutes 1909, provides:

“In all suits upon policies of insurance on life hereafter issued by any company doing business in this State to a citizen of this State it shall be no defense that ^ie insureci committed suicide, unless it shall be shown to the satisfaction of the court or jury trying the cause' that the insured contemplated suicide at the time he made his application for the policy, and any stipulation in the policy to the contrary shall be-void. ’ ’

That part of the section which limits elimination of suicide as a defense to policies issued to citizens of this State and which declares that in policies so issued a stipulation to the contrary is void, was held invalid, while the remainder of the section was sustained and so construed as to deprive the insurer of that defense and to prohibit the insertion of a contrary clause in the policy, without any regard to where or to whom the policy was issued.

In so far as the question thus stated is involved in this action it is not difficult of solution. If the contract was an Illinois contract and by reason thereof governed by the laws of that State, as we hold, although the suit is brought in the courts .of this State, none of the provisions of the section are applicable to respondent’s case, nor available to her. The section when correctly construed is but an inhibition against making insurance contracts in this State and with citizens of this State whereby the insurer is relieved from liability in the event the insured commits suicide. The only right, privilege or immunity which it denies is the right to contract that in case of suicide the contract obligation shall not be effective, and this denial or abridgment extends only to the citizens of this State and insurers while contracting in this State. It does not deny to citizens of other States the right to contract with an insurer that such insurer shall be liable in case of suicide; it merely compels insurance companies when contracting .in this State and with citizens of this State to eliminate from their contracts a certain provision, at the same time leaving citizens of other States entirely free to make such contracts in relation to the subject-matter as they deem proper. It but regulates a certain subject-matter between insurers and the citizens of this State without attempting to force such regulations upon others. It is ndt a natural right of any person, wherever' living, to demand of an insurer indemnity against suicide merely because the insurer is willing to give insurance against death from other causes. Absent statutes to the contrary in the place where the- contract is made this is legitimate subject-matter of contract. If the laws of the State where the contract is made do not deprive the ’ parties of the right to limit liability to death from natural or accidental causes, the right to so contract cannot be questioned and when exercised must be respected. If this- provision abridges the privileges of any person it is the citizen of this State who is not allowed, even for a reduced premium rate, to secure a policy of life insurance containing a binding provision against suicide, although the citizens of other States are so permitted — but of this respondent cannot complain, because neither she nor the insured were of the class thus affected.

This statute and its application is in no sense similar to the statute dealt with in Blake v. McClung, 172 U. S. 239. That statute clearly offended against the Federal Constitution in that it' gave priority -to creditors who were residents of the State over all similar creditors residing elsewhere. It is, however, quite similar to the case of Chambers v. Railroad, 207 U. S. 142, in which the validity of the statute in question was sustained.

The Legislature of this State can prescribe the conditions under which corporations may be organized herein and may determine the territorial limits of their business operations. It has not, however, seen fit to restrict its insurance corporations (except certain local mutual companies) to any particular territory, but has left them free to enter and transact business in all .States whose permission they may obtain. Save in exceptional cases and instances where certain provisions and requirements definitely inhere in their charters, the regulation of their transactions in other States is left to the laws of such States. By virtue of this, Missouri insurers are enabled to secure authority to do business’. in many States whose laws are different from ours and where they could not practically operate if our laws were of extra-territorial effect and governed their foreign relations.

It is evidently the policy of this State to leave the insurers which operate in other States on the basis of equality where the laws of such States place them. The State likewise has power to impose upon foreign corporations such conditions as it sees fit, this being but the correlative of its right to exclude them. It has not seen fit to prescribe that either foreign or domestic insurance corporations shall make their contracts in other States in accordance with the' laws which govern the subject in this State. The anti-discriminatory statute of this State does not undertake to prescribe the contingencies under which liability attaches on contracts made in other States. It does not prevent legitimate classification, nor require insurers to include in their policies under all circumstances the same provisions.

We are clearly of the opinion that this section does not violate section 2, article 4, or that part of section 1 of the Fourteenth Amendment to the Constitution of the United States, which provides that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

A more interesting and difficult question would arise had this contract been executed within this State and while the insured was within the State’s jurisdiction, although not one of its citizens. That part of the Federal Constitution which prohibits a State from denying to any person within its jurisdiction the equal protection of its laws would under such circumstances become of serious consideration. In the instant case, however, it is unnecessary for us to deal with this phase, since the record before us does not involve the same and a decision thereon, is not material to a determination of the cause.

The court erred in sustaining the objection to the testimony tending to show that the insured committed suicide within one year from the time the insurance began and in holding that the provision in question was unconstitutional when applied to the facts of this case.

The judgment is therefore reversed and the cause remanded.

All concur except Bond, J-, who dissents.