author: LAMM, J.

text:
    THE STATE ex rel. WILLIAM K. BIXBY, ROBERT BROOKINGS and MAX KETANY v. CITY OF ST. LOUIS and FREDERICK H. KREISMANN, Mayor.
    In Banc,
    March 20, 1912.
    1. FORMER DECISIONS: Authority: Limited to Facts. The language used in any opinion is to be interpreted in the light of the facts and issues held in judgment in the concrete case. General language is not to be disconnected from those facts and issues and applied mechanically or automatically to the different facts and issues of another case. The reasoning, illustrations and references contained in an opinion are not authority or precedent, but only the points arising in the particular case and which were decided by the court are.
    2. -: Void Proviso: Decision Limited to That: Museum of Fine Arts: Taxation. The case of State ex rel.* Board of Control of St. Louis School and Museum of Fine Arts v. City of St. Louis, 216 Mo. 47, was directed to holding invalid the proviso in section 3 of the Act of 1907, which turned over to a self-perpetuating board of an auxiliary branch of Washington University the tax authorized by the act to be levied and collected, and was not meant to hold and did not hold that the whole act was void, if the administrative board to manage the fund was appointed by the mayor in the manner provided by the words of that section preceding that proviso., It was not held in that case that the act was passed for the mere purposes of the proviso, that is, that the tax was to be levied and collected for the use of the -board of control of the St. Louis School of Fine Arts, which was an auxiliary assistant to the board of Washington University. The effect of that decision was that the taxes so collected could not be turned over to that board of control, which was the relator, suing for the fund in that esse. The case is stare decisis only to the point of holding the proviso unconstitutional. The rest of the act was not held in judgment in that case.
    3. UNCONSTITUTIONAL LAW: Invalid in Part: Presumption. The presumption that where a law is unconstitutional in part the whole is invalid, is of doubtful existence. On the contrary, the court approaches the constitutionality of every law with a strong, even a violent, presumption that it is valid; and if the invalid part is separable from the rest, the presumption is that the rest is valid.
    4. -: Museum of Art Tax: Proviso Invalid: Rest Valid. The Act of 1907, authorizing the city of St. Louis to levy and collect a one-fifth mill tax for a public art museum, and providing that when said act shall have been approved by a vote of the people the mayor, with the approval of the municipal assembly, shall appoint an administrative board of nine members to control the expenditure of the art museum fund, is this far constitutional; but the proviso, namely, that if there be already in such city a legally constituted administrative board of public property devoted by law to the uses of an art museum (referring, as a matter of fact, to an existing board of control of an art museum which had become a part of Washington University), “such board and its successors shall be the board of control of the art museum,” and have and expend the public tax, is invalid. But it cannot be said that the proviso furnished the whole legislative inducement for the act, and the invalid proviso being separable from the rest, and ancillary thereto, the rest is valid and constitutional; and it is the duty of the city, since the act has been approved by the people, to levy the tax, and of the mayor to appoint an administrative board.
    5. --: Meaning Ascertained from Title. The title of a law is of significance in getting at its intendment; and the consistency between the title and the main body of the act is important in determining whether the whole was made to depend on a proviso contained in a single section
    6. -: Vicious Intendment. In getting at and enforcing the intendment of the lawmaker the courts will not hold his intendment to be vicious or his law as amounting to nothing at all, unless driven thereto by imperative reasons.
    Mandamus.
    Writ awarded.

      A. é J. F. Lee, and Charles M. Polk for relators.
    (1). Relators have a right to maintain this action. State ex rel. v. IToblitzelle, 85 Mo. 625. (2) • The mayor has a discretion to say who shall be appointed bnt not to say whether a board shall or shall not be appointed. Laws 1907, secs. 1, 2 and 3, pp. 94, 95, 96; State ex rel. v. Francis, 95 Mo. 56; State ex rel. v. Jones, 155 Mo. 576; State ex rel. v. Public Schools, 134 Mo. 311; High on Extraordinary Legal Remedies, sec. 324, 325; 26 Cyc. 251; Kelly v. Yan Wyck, 35 Mise. N. Y. 210; Laud v. Lynd, 44 Pa. St. 336. (3) The mayor does not enjoy immunity from judicial control like the Governor of a State or the President of the United States, and the city can be compelled by mandamus to levy and collect the tax imposed 'by law. State ex rel. v. Noonan, 56 Mo. App. 528; State ex rel. v. Gates, 190 Mo. 546; State ex rel. v. Rainey, 74 Mo. 236; State ex rel. v. Trustees, 61 Mo. 158; 26 Cyc. 320; State v. Patton, 108 Mo. App. 26; 26 Cyc. 330; Brooks v. Schultz, 178 Mo. 222. * (4) No ordinance of the city is necessary to carry into effect -the Act of 1907, for that Act is automatic. Tharp v. Biscuit Co., 179 Mo. 553. (5) The Act of 1907, Laws 1907, p. 94, is constitutional. 20 Am. & Eng. Enc. Law (2 Ed.), 1218; 20 Am. & Eng. Enc. Law (2 Ed.), 1221; State v. Board of Education, 141 Mo. 550; State ex rel. v. Field, 119 Mo. 614; State ex rel. v. Owsley, 122 Mo. 68; State ex rel. v. Mason, 153 Mo. 43; State ex rel. v. Mason, 155 Mo. 499; State ex rel. v. County, 144 Mo. 275; State ex rel. v. Holliday, 70 Mo. 137; State ex rel. v. County Court, 34 Mo. 546; Hauessler v. St. Louis, 205 Mo. 656. (6) The constitutionality of the Act of 1907, was not passed upon in the case of State ex rel. Board of Control of the St. Louis School and Museum of Fine Arts v. City of St. Louis, 216 Mo. 47. County Court v. Griswold, 58 Mo. 99; State v. Railroad, 89 Mo. 44; Carroll v. Campbell, 108 Mo, 550; Water Co. v. Neosho, 136 Mo. 510; Kansas City v. Bacon, 147 Mo. 273; Haag v. Ward, 186 Mo. 339; State ex inf. v. Ins. Co., 152 Mo. 49; Cooley on Constitutional Limitations (7 Ed.), p. 246.

      Lambert E. Walther for respondents.
    (1) The Act of 1907 is unconstitutional and was so held by this court in the case of State ex rel. v. City of St. Louis, 216 Mo. 47. (2) Where part of an act has been declared invalid and the remaining portion comes up for consideration as to whether it can stand as an independent proposition, the presumptions are generally against it. Skagit v. Stiles, 10 Wash. 388. (3) Even though the portion of an act declared invalid be distinct and separable from the remainder of the act, yet if it be apparent that the Legislature would not have passed the remainder without the invalid portion, then the whole act falls with the invalid part. Sutherland’s Statutory Construction (2 Ed.), sec. 302; Endeiiich on Interp. of Stat., sec. 538; State ex rel. v. Nast^OO1 Mo. 708; Ex parte Smith, 231 Mo. Ill; State ex rel. v. Railroad, 195' Mo. 228; State ex rel. v. Donsman, 28 Wis. 541; Eckerson v. Des Moines, 137 la. 480; State ex rel. v. Bd. of Sup., 62 Wis. 376. (4) “If by striking out a void exception, proviso or other restrictive clause, the remainder, by reason of its generality, will have a broader scope as to subject or territory, its operation is not in accord with the legislative intent and the whole would be made void by the invalidity of such part. ’ ’ Sutherland on Stat. Constr. (2 Ed.), sec. 306; Copeland v. St. Joseph, 126 Mo. 147; Connolly v. Pipe Co., 184 U. S. 540; State ex rel. v. Bd. of Sup., 62 Wis. 376; Mathews v. People, 202 111. 389.
   LAMM, J.

— Mandamus. Original proceeding. On final submission the cause stands on relators’ motion for judgment on the pleadings.

Relators (hereinafter called plaintiffs) sne as residents and taxpayers of St. Louis in their own behalf and in behalf of all persons of like kind and situation desiring to join and share the expense. Complaining of respondents (hereinafter called defendants), they charge that the Forty-fourth General Assembly enacted a law (approved March 7, 1907, Laws 1907, p. 94) with the following title: “An act providing for the establishment, extension and regulation of museums of art, in cities of four hundred thousand inhabitants or more, or which may hereafter have four hundred- thousand inhabitants or more, and authorizing taxation for the same, with emergency clause. ’ ’ Pleading the provisions of that act, they state that, as therein provided, an election was petitioned for, ordered and held in St. Louis; that thereat, to-wit, at the regular city election in April, 1907, the voters of the city (by a vote of 27,721 for, as against a vote of 7606 against) voted a one-fifth mill tax for a public art museum; that subsequently plaintiffs requested and demanded of defendant city and its officials that they fix a rate for such art museum tax and make a levy thereof as authorized and provided in said Act of 1907, and by the voters of the city at said election, keeping the total taxes within the constitutional limitation upon the taxing power; that the city and its officials failed and refused to accede to such demand and request; further, that plaintiffs made a demand and request at the same time that defendant mayor appoint and submit to the legislative branch of the municipal government for its approval an administrative board of nine members to control the expenditure of the art museum fund and otherwise to perform the duties prescribed by the act for said board to perform, and that then and ever since defendant mayor failed and refused so to do; that plaintiffs, being otherwise remediless in the premises, pray an alternative writ of mandamus issue to defendants to show cause, if any they have, why such board should not be appointed and submitted for such approval and why said tax should not be levied.

An alternative writ issued, narrating the allegations of the petition, and defendants were cited to show cause.

Replying to that citation defendants make return in effect confessing the allegations of the alternative writ, and for cause of their failure to appoint the board and levy the tax, plead that the Act of 1907 is unconstitutional' and void, that its unconstitutionality has been declared by this court in a cause determined here entitled: “The State ex rel. Board of Control of St. Louis School and Museum of Fine Arts v. City of St. Louis.” [Vide, 216 Mo. 47.]

Plaintiffs’ counsel, doubtless on the maxim that abundant caution does no ,injury, and being .without the gift of prophecy and, therefore, in the dark on the scope and tenor of defendants’ ultimate position, file here a memorandum brief supporting their right to a writ. That memorandum brief has been carried forward as live matter in their printed brief on final submission. Among others, that brief asserts and cites authorities to sustain the following propositions :

(a) Plaintiffs have a right to maintain this action.

(b) The mayor has a discretion to say who shall be appointed, but not to say whether a board shall or shall not be appointed.

.(c) The mayor does not enjoy immunity from judicial control like the Governor of a State or the President of the United States, and the city can be compelled by mandamus to levy and collect the tax imposed by law (and the vote of the people).

(d) No ordinance of the city is necessary to carry into effect the Act of 1907, for that act is automatic.

By the brief of the learned chief law officer of the city, Mr. Walther, defendants raise no issue at all on propositions “a,” “b,” “c” and “d.” Such form of submission in a controversy presented to a court must be taken as a conclusive confession that defendants admit propositions thus advanced and not controverted, and fall back on a flank attack by way of avoidance. The city and its mayor admit the passage of the law, the election, the result, the demands and their failure, and that relief is due in the form prayed unless the law is worthless because of invalidity. The cause, then, may proceed with such confession assumed, and we shall waste neither time nor labor examining or ruling propositions not controverted. In fact defendants, as was meet and proper under the circumstances, put all their eggs in one basket, as appears not only in their return but -in their statement of the case, the latter summing up the whole controversy as hanging on a single thread, viz.:

“The respondents contend that this act is unconstitutional and was so declared by the Supreme Court of the State of Missouri in the case of State ex rel. Board of Control of the St. Louis School and Museum of Fine Arts v. City of St. Louis, 216 Mo. 47, and that therefore there is no authority for the doing of the acts commanded by the alternative writ.
“Relators say that only the proviso of section 3 of the Act of March 7, 1907, was declared invalid by this court, and that the proviso is separable from the remainder of the act, and, if eliminated, that there is still left a complete constitutional enactment.”

The question then is: Is the Act of 1907 constitutional? Plaintiffs affirm and defendants deny that it is. Defendants affirm and plaintiffs deny that the constitutionality of the act was passed upon in the mentioned case. Let us deal with the last issue first.

I. Of the decision in State ex rel. Board of Control of the St. Louis School and Museum of Fine Arts v. City of St. Louis, 216 Mo. 47.

(a) As leading up to a determination of the scope and effect of that decision a foreword will not be unprofitable. There is a pronounced line of demarcation between what is said in an opinion and what is decided by it — between arguments, illustrations and references on one side and the judgment rendered on the other. The language used by a judge m his opinion is to be interpreted in the. light of the facts and issues held in judgment in the concrete case precisely as in every other human document. Let us put a homely case to illustrate. Once upon a time there was kept, screwed against an end of each car on a certain railroad, a sealed cabinet or case with a glass front. In this case were- conspicuously displayed an ax, a hammer and a saw. The glass front bore the legend in bold letters: “In case of accident break this glass.’’ Suppose John, a passenger, accidentally stubbed his toe in a hole in the aisle carpet of that car and hurt himself, would he have leave and license to smash that' glass on the invitation extended by the general language of the legend? Would not the accident giving that right connect itself with the necessary need and use of a hammer, a saw or an ax?

It would be a wide and very mischievous departure from correct canons of interpretation to disconnect general language from the issues and facts of a given case and to apply that general language mechanically or automatically to the different facts and different issues of another case; for the sense must be limited according as the subject requires, and words take color from their context. In the House of Lords in Quinn v. Leathem (Appeal Cases 1901, l. c. 506) the Earl of Halsbxtrt, Lord Chancellor, said: Now, before discussing the case of Allen v. Flood and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are found. The other is that the case is only authority for what it actually decides. I entirely deny that it can be quoted for a proposition which may seem to follow logically from it.” '

Yattel’s 18th rule of interpretation reads: “The connection and train of the discourse, is another source of interpretation. We ought to consider the discourse together, and in order perfectly to conceive of the sense of it, and to give to each expression not so much signification as it may receive in itself alone, as that it ought to have from the thread and spirit of the discourse.” [Potter’s Dwarris on Stat. and Con., 128.]

The doctrine of a standard treatise (2 Lewis’s Suth. Stat. Const. (2 Ed.), sec. 486) runs agreeably to the dictum of Lord Chancellor Halsbtjry, viz.: “The maxim of stare decisis applies only to decisions on points arising and decided in causes; it has been held not to extend to reasoning, illustrations and references in opinions. The precedent includes the conclusion only upon questions which the case contained, and which were decided.” That exposition has been adopted as satisfactory by this court. [Koerner v. St. Louis Car Company, 209 Mo. l. c. 156.]

In a closely reasoned case, Lucas v. Commissioners, 44 Ind. l. c. 541, Downey, C. J., uses language often approved; to-wit: “It may be well to state . . . that the language used in an opinion is always to be restricted to the case before the court, and the decision is only authority to that extent. The reasoning, illustrations and references contained in the opinion of the court are not authority, not precedent, but only the points arising in the particular case and which are decided by the court. The members of a court often agree in a decision, but differ decidedly as to the reasons or principles by which their minds have been led to a common conclusion. It is therefore the conclusion only, and not the process by which it has been reached, which is the decision of the court, and which has the force of precedent in other cases. The reasoning-adopted, the analogies and illustrations presented in real or supposed cases, in an opinion, may be used as argument in other cases, but not as authority. In these the whole court may concur, or they may not. So of the principle concurred in, and laid down as governing the point in judgment, so far it goes or seems to go beyond the case under consideration. If this were not so, the writer of the opinion would be under the necessity in each case, though his mind is concentrated on the case in hand, and the principles announced directed to that, to protract and uselessly encumber his opinion with all the restrictions, exceptions, limitations and qualifications which every variety of facts and change of phase in causes might render necessary.”

There is general language in State ex rel. v. City of St. Louis, supra, somewhat urgently calling for the use of the foregoing rules for sifting and applying decisions. -That general language is quoted and relied on by defendants in the instant case. Such use of that general language makes pertinent the foregoing discussion and justifies the remark that it is in the light of those rules, and not otherwise, we must determine what that case actually does decide.

To the above, and giving further point to the observations just made, we add that the law department of the city of St. Louis construed the decision in hand as cutting away the Act of 1907 root and branch. The city, following the enabling vote referred to, had levied a one-fifth mill tax, collected a larg’e snm and pnt it in an “art museum fund.” When that decision went down the city made no further annual levy of said one-fifth mill tax, and, for aught appearing here, it now has such fund intact in its money chest. Not only so but a committee selected for learning in the law, revising the statutes in 1909, and empowered in that behalf to omit those declared by this court unconstitutional, omitted the Act of 1907 from Revised Statutes 1909, thereby joining the law department of the city in construing our decision as fatal to the enactment from end to end.

(b) To aid in getting an understanding of the points ruled in the decision invoked by defendants, a summary of the Act of 1907 will be helpful. Thus: Its title hereinbefore set forth we shall recur to presently. The Act is in ten sections — the tenth, of some significance, declares an emergency because of “the fact that many cities and towns in this State have no art museum established therein.”

Section 1 enables a city of a given population (including St. Louis) on petition to take a vote on the question whether a one-fifth mill tax for an art museum shall or shall not be levied. Its mandate is that, on such enabling vote, the tax shall be levied and collected in like manner as other general city taxes— the proceeds to be segregated and known as “the art museum fund” — its continued levy, however, is subject to recall at a subsequent election and on such recall the tax ceases. The tax rate of the city is to be so fixed that, including the art museum tax, constitutional taxing limitations shall be observed.

Section 2 prescribes, by way of definition, what the art meseum shall be in subserving a beneficial end to the public. It is to be an institution to collect and exhibit pictures, statuary and other works of art, or whatever else may be of artistic interest or appropriate for exhibition in snch museum “for instruction in art, and in general, for the promotion by all proper means of aesthetic or artistic education. ’ ’ It next prescribes certain administrative requirements.

Section 3 we reproduce entire, since its clause (in the nature of a proviso) beginning with the phrase “unless and except,” is said to contain the poison causing the whole enactment to perish. It reads:

“When in any city it shall have been decided by vote in the manner provided in section 1 of this act that a tax shall be levied for an art museum, the mayor of such city shall, with the approval of the legislative branch of the municipal government, proceed to appoint an administrative board of nine members to control the expenditure of the art museum fund, unless and except there shall be at the time already constituted and in existence, operation and authority, an administrative board endowed by city ordinance or other legal authority with power to occupy or administer public property devoted by law to the uses of an art museum located in a public park or upon public property by virtue of municipal authority; and if there shall be such a board, such board and its successors shall be the board of control for the art museum fund under this act for all the purposes and possessing all the powers and charged with all the duties provided for such board in this act.”

Section 4 provides for the term of office of the administrative board to be appointed by the mayor, and gives directions for filling vacancies, for removal from office, etc.

Section 5 empowers said board to make certain by-laws and donates other powers.

Section 6 directs that any museum so established shall be forever free to the use of the inhabitants of the city ‘ ‘ so long as the art museum tax shall continue to be operative therein,” subject to reasonable rules and regulations by the board.

Section 7 relates to certain duties of tlie board.

Section 8 authorizes the city legislature to enact ordinances imposing penalties to punish those injuring the museum, its contents or grounds.

Section 9 provides that well disposed persons may make loans or donations of art objects, etc., to the art museum by deed, gift, devise or bequest to be held in trust, etc.

With the provisions of the Act of 1907 in mind, let us look to the decision in State ex rel. v. St. Louis, upon which defendants lean as a staff. In that case the board of control of the St. Louis School and Museum of Pine Arts came here for a writ of mandamus to compel the city of St. Louis to turn over $85,000, then in the city treasury as the proceeds of the one-fifth mill tax theretofore levied and gathered in for an art museum, and to go on and make continued tax levies to go the same way. Eelators contended their board was the legal receptable into which those taxes must be emptied and that they were entitled to that relief because they came directly within the purview, meaning and requirements of the “unless and except” clause or proviso of sections 3 of the Act of 1907 — that they filled the bill of that proviso and were an administrative board (to use the verbiage of the act) already constituted and in existence, operation and authority, endowed by a certain city ordinance and by the. act itself with power to occupy or admisister public property devoted by law to the uses of an art museum located in a public park or upon public property by virtue of municipal authority. The issues raised by that claim were the only issues that could be properly threshed out and determined in that case. We ruled that the board was not entitled to the fund or to compel such tax levies and, in doing so, ruled the proviso unconstitutional. In leading up to those rulings the opinion gives the origin and history of the St. Louis School and Museum of Fine Arts, considers a certain ordinance 19969, of the city authorizing its board of control to erect in a public park of the city a building to be devoted to art education, and considers the meaning of the proviso in connection with the claim of relators in that suit.

A proposition decided in that case was that the board of control of the St. Louis School and Museum of Fine Arts was not in fact and could not become (giving heed to trusts involved) a public municipal institution, but was a mere department or administrative agency of Washington University, a corporation chartered by the State many years, ago. In other words that neither under the ordinance of the city refered to, nor by the ordinances and resolutions of Washington University shown to exist, nor by the Act of 1807, nor by the instruments, agreements and authorized powers by which Washington University took over and controlled the St. Louis School and Museum of Fine Arts, did that school and museum or its board of control become, nor could either or both of them ever become an entity separate and distinct from Washington University. It was further held that the board of control of that school apd museum was not and could not become a public official body of the city of St. Louis amenable to municipal government. On such premises it was ruled, further, that such board of control could not, under pointed-out provisions of our Constitution, be entitled to a donation of taxes levied and collected for public purposes, and to compel the levy of such taxes.

It was ruled further that relators, not being a legal entity or corporate body, but only an agency and department of Washington University administering the trust created by Mr. Crow, had no legal capacity to sue as such board.

Unquestionably it was decided, as said, that the proviso of section 3, looking to turning over the tax to tlie board of control of the St. Louis School and Museum of Fine Arts, was unconstitutional. Although that case was decided by a divided court we stand by the ruling so made. Nor do relators in the present case ask us to change that ruling. They agree that we ought not to be blown about by every wind of doctrine on that score.

It may be conceded there is now and then some language used in the opinion (somewhat arguendo we think) that is subject to the construction that the Act of 1907 was passed for the very purpose of the proviso. If that be so, then to that extent the infirmity and vice of the proviso permeate the whole law. But the constitutionality of the whole act was not involved in the issues raised and decided, ergo, under the rules for interpreting and applying decisions announced in paragraph “a,” that language ought not to be held as a decision that the entire act was void so as to make the maxim stare decisis apply. Such question is an issue in this case, but, as said, not in that. To such situation the rule of Lord Bacon applies, viz.: A court has nothing to do with what is not before it (nihil habeat forum, etc.) The general language on which the idea seems to be predicated that the whole act was declared void appears to have been casual, argumentative and by way of a side step into obiter. It does not arise to the dignity of a solemn holding on full consideration that the act was bad throughout. We find the following language at the close of that opinion, which either has no place there at all or bears out the view by way of a surmise, a hypothesis (or a benediction), that there may be virtue left in the law — a virtue to be tested out in a proper case by right parties in the interest of the public, viz.: “It may be that the city of St. Louis by its municipal assembly may provide a museum in its public parks which shall be under control and direction of the municipal authority of said city and that a portion of the revenue of tlie city may be devoted to building it up.” That language does not indicate that tbe court was precluding a future contention that the entire act was not void.

Tbe conclusion announced brings us to tbe final question, to-wit: Tbe proviso being void, does tbe whole act fall? To that question we pass.

II. We shall not undertake to re-examine or reformulate tbe learning on tbe question. Tbe books are full of it and counsel on both sides cite cases decided by this court, and text-writers, showing under what circumstances an unconstitutional and therefore dead provision may be pruned from tbe main stem of a law without impairing tbe stem itself. Tbe prying mind can consult tbe reporter’s bead notes for them. There is a very late case, State ex rel. v. Gordon, 236 Mo. 1. c. 170, et seq., where the matter was in judgment and the right doctrine is announced. Briefly,'the touchstone whereby a correct conclusion is to be reached will be found in correct answers to these questions: Is tbe entire law built up around tbe unconstitutional proviso ? Are all tbe provisions of the enactment inseparable, and so interwoven and connected as to be interdependent? Does tbe statute attempt to accomplish instead of two objects (one valid, the other invalid) only, one object and that one invalid?- Does tbe proviso furnish tbe inducement, tbe consideration, the legislative motive for the whole act? Is it apparent that but for tbe proviso tbe Forty-fourth General Assembly would not have enacted tbe law? With the proviso cut away is there left only an incomplete enactment, one not symmetrically rounded out and, therefore, incapable of enforcement? If those questions must be judicially answered, yes, then tbe whole act falls to tbe ground with tbe proviso — if, no, then tbe law, bad in part, may be good in part; for the courts in this behalf do not apply tbe ideas shadowed forth in the metaphors of Paul and Solomon where tbe one speaks of a little leaven that leaveneth the whole lump, and the other comments on the all-pervading and unsavory effect of dead flies in the apothecary’s ointment.

We are cited to a case (Skagi County v. Stiles, 10 Wash. 388) holding that where a part of the law is bad the presumption is generally that the whole is bad. Such a presumption I think of doubtful existence and of little value if existing at all. To the contrary we approach the constitutionality of a law with a strong, even a violent, presumption it is valid. Its invalidity must be made to appear beyond a reasonable doubt and every allowable art, part and act of judicial power should be exercised in so interpreting the law, if possible in reason, that none of it perish by construction. But if that be impossible and some of it, through inherent vice, must perish, do not the separable and independent parts of the law still stand protected by the presumption of validity attending the whole law at the outset? Why not? To a little alter and -use a simile of Lord Hobart (Malever v. Redshaw, 1 Mod. 35), which I have had occasion to use before in another form, a judge is not to be like a tyrant, making all void when part is void, but like a nursing father, making void only that part where the fault is and preserving the rest if he can.

We are all of one accord in the opinion that the proviso being cut away as unconstitutional, there was left remaining a perfect, constitutional law capable of enforcement; that the proviso did not furnish the whole legislative inducement and consideration for the law; that there is no apparent reason why the Legislature would not have passed the law without the invalid proviso; that there is a main purpose running like a marking thread through the warp and woof of the law and a perfect plan outlined to effectuate that purpose, independent of the proviso; that the proviso is in its nature ancillary, a mere incidental or possible means of effectuating the main purpose of the law, if, and only if, conditions were found to exist bringing the incidental or ancillary scheme into play; that the enactment may be likened unto a channel in which water runs, the proviso likened unto a canal tapping that channel and taking that water, whereby if the sluice gate be lowered and the canal be dammed at its head, the water naturally takes the main channel again.

As said by Grrotius, the more noble, useful or necessary the matter of one provision is than that of another, the greater weight ought that provision to have with us.

Plere the single motive or purpose of the enactment appears first blazoned forth in the legislative inscription or title over the law. Whatever the rule in England, in Missouri the title of a law is of significance in getting at its intendment. [Sedalia ex rel. v. Smith, 206 Mo. l. c. 361, et seq.] The title to the Act of 1907 shows that the legislative purpose was to enable cities of a certain class to establish, maintain, extend and regulate museums of art and employ their taxing power to that end — a worthy and permissible municipal end whether the educational efforts be directed to advance the “fine arts” so called, or “decorative art” or both. Turning to the emergency clause it shows that the Legislature was impressed with the fact that cities of this State had, at the time in hand, no free public art museums. Turning to the body of the act there is abundant internal evidence that its broad and main purpose, uninterrupted from head to foot, was to supply that deficiency, and that there is a perfect administrative working scheme provided, as said, to that end. True it is, that scheme or administrative plan is tentatively (and only tentatively) halted or diverted at one point on one contingency, viz.: the contingency evidenced by the “unless and except” proviso in section 3 — a contingency that never happened and never can happen. Why then (the premises considered and keeping in mind the purpose of the law), if the proviso be taken away, as here, should not that purpose and main scheme to carry it out remain intact and operative for the public good!

Speaking further to that proviso, we are of opinion that when the whole act is construed together, it shows that the Legislature had in mind that there might exist a present administrative board, endowed in a certain way with powers of a certain kind, that might be borrowed to carry out the purpose of the law and its administrative scheme, and, to that end, have and hold the powers and perform the duties prescribed for the other statutory board, to-wit, an administrative board of nine members to be appointed by the mayor 'and confirmed by the legislative branch of the municipal government. As the force of the decision iu Board of Control of the St. Louis School and Museum of Fine Arts v. St. Louis was directed to and spent in ruling that relators in that case (a self-perpetuating body) were not such administrative board as could validly take over those powers, or become the donee of public money and perform the function of public municipal officers, entrusted, with public property, .and that, the proviso was a dead letter, it results, as said, that the principal provisions of the act, outlining another administrative scheme, at once come into active play and resume their full operative force, as soon as the ancillary or incidental means of effectuating the purpose of the law were struck down and out of the way; for we are not by speculative refinements, in getting at and enforcing the intendment of the lawmaker, to hold his intendment vicious, or his law as amounting to nothing at all, unless we are pricked on and goaded thereto by imperative reasons — reasons we cannot find in the case at bar. It was a long time ago tartly and shrewdly said by a very great Judge, by way of reductio ad absurdum may be, in a kindred matter, that “the court, in its anxiety to find out the meaning of testator, has found that what he said has the same meaning as if he had said nothing at all.” [Wright v. Atkyns, 1 Turn, and Russ. 143, l. c. 156.] We should not unnecessarily get into such a pickle in interpreting either a law or a will.

So, the proviso may be likened in its nature to a permission, the rest of the law showing what is prescribed. In such case, the rule is: Where what is only permitted is found incompatible with what is prescribed, the latter has the advantage. [Yattel’s 36th rule.]

Let a final writ go. It is so ordered.

All concur.


source: Caselaw Access Project

author: BROWN, J. PEE CUEIAM.

license: Public Domain

text:
    JEREMIAH FRUIN et al. v. MAGGIE O’MALLEY et al., Appellants.
    Division Two,
    March 21, 1912.
    1. APPEAL: Agreed Statement: Matter of Exception. Agreed statements of facts, in cases instituted by petitions, are mere matters of evidence, and do not become a part of tbe record unless incorporated in a bill of exceptions.
    2. -: Exceptions: Separate Finding of Facts. Under the statute (Sec. 1972, R. S. 1909) both the special findings of facts and conclusions of law should be entirely separate from the judgment, in order that the party excepting to such finding may except to the “decision of the court on the conclusions of law or equity arising in the case,” which means that such exceptions to the court’s conclusions of law shall be saved as may be properly included in a bill of exceptions. The law does not contemplate that exceptions shall be written into the record proper.
    3. -: -: No Bill of Exceptions. In an action at law, where there was a special finding of facts, which is not made a part of the judgment, and no bill of exceptions was filed, there is nothing for review on appeal but the record proper, and a separate finding of facts is not a part of the record proper; and if the judgment is legally sufficient within itself, and the petition legally sufficient to support the judgment, that judgment will be affirmed. But if there is an error on the face of the judgment, that error will be corrected.

      4. -: Correcting Judgment: Wrong Rate of Interest. Where the judgment in a ease to foreclose a lien for special taxbills issued in payment of a street improvement in St. ■ Louis, on its face shows that it bears interest from the date of its rendition at eight per cent, that judgment will, though there is no bill of exceptions, be so corrected as to make it bear six per cent interest.
    Appeal from St. Louis City Circuit Court — lion. D. G. Taylor, Judge.
    Affirmed (as modified).

      Frank G. O’Malley for appellants.

      George D. Karris for respondents.
   BROWN, J.

— Action at law to foreclose lien for special taxbills issued for street improvements. From ■ a judgment of tbe circuit court of St. Louis City awarding to plaintiffs a lien as prayed in their , petition, defendants appeal.

In seeking a reversal of the judgment of the trial court, the defendants attack not only the validity of the contract under which the improvements were made, but also the constitutionality of certain parts of the charter of St. Louis City authorizing and regulating the improvement of streets and the issue of special taxbills for such improvements.

Before considering the alleged invalidity of the taxbills, which defendants’ resourceful attorneys have presented with much learning and industry, we'must first determine whether or not the errors, if any, committed by the trial court have been brought here in such manner as to authorize a review by an appellate court.

The appellants have filed in this court what they term a printed abstract of the record, which embraces the petition, answer, reply, a special finding of facts by the trial court, the judgment, orders showing the filing of a motion for a new trial, tlie overruling of same, and the granting of an .appeal.

No bill of exceptions was filed. The motion fox-new trial is not included in the record; and the finding of facts is not a part of the judgment. That is, the judgment is complete without reference to the finding of facts; and there are no conclusions of law, unless we shall say that the judgment itself is a conclusion of law in that it declares that the plaintiffs axe entitled to recover.

Respondents have also filed in this court what they term an “Additional Abstract of the Record,” which is simply a printed copy of a stipulation entered into in the trial court agreeing upon certain matters of evidence to be considered by said trial court in ascertaining the facts in dispute and rendering its judgment.

Appellants have objected to this “additional abstract,” on the ground that it was filed out of time. Regardless of when it was filed, it is clear that it has no place in this appeal. Agreed statements of fact in cases instituted by petitions are mere matters of evidence, and never become a part of the record, unless incorporated in a bill of exceptions; which was not done in this case. [State ex rel. v. Merriam, 159 Mo. 655; Smith v. Smith, 111 Mo. App. 683.]

The second point for our consideration is whether or not we can, without a motion for a new trial or bill of exceptions in the record, consider and review the alleged errors iix the trial court’s conclusions of law.

This point is not altogether free from difficulty. This court in an action at law has announced the doctrine that when a trial court makes its finding of facts a part of its judgment, such finding thereby becomes a part of the record pi-oper; and may be reviewed on appeal without a bill of exceptions. [Snuffer v. Karr, 197 Mo. 182.] The Kansas City Court of Appeals has held that when a finding of facts is made, it becomes a part of the record proper, and the judgment may he considered as the court’s conclusions of law, and reversed, if it is not properly supported by the finding of facts. [Nichols v. Carter, 49 Mo. App. 401.] In a later case by the same court, it was held that a special finding of facts could only be made a part of the record by a bill of exceptions. [State ex rel. v. Lusk, 93 Mo. App. 680.] It is undoubtedly true that the judgment and all necessary recitals therein are matters of record proper, the same as the petition, answer and reply. If a judgment is not supported by a sufficient petition, -it may be reversed on appeal," without any bill of exceptions. It is necessary for judgments to contain general findings of fact, and the judgment must follow those findings. For example, a judgment in favor of a plaintiff for one thousand dollars would be properly supported by a general finding of the court that the defendant was indebted to plaintiff in that sum; but in an ordinary action for debt, a general finding that defendant was ind'ebted to plaintiff in the sum of one thousand dollars, would not support or authorize a judgment for two thousand dollars; and on appeal, such latter judgment would have to be reversed or modified, even though no bill of exceptions was filed.

Section 1972, Revised Statutes 1909, provides that: “Upon the trial of a question of fact by the court, it shall not be necessary for the court to state its finding, except generaly, unless one of the parties thereto request it with the vieiv of excepting to the decision of the court upon the questions of law or equity arising in the case, in which case the court shall state in writing the conclusions of facts found separately from the conclusions of law.”

It is' manifest that the foregoing section contemplates that when so requested, a statement or conclusion of the facts proven in the case, and the court’s conclusions of law, as applied to such facts, shall be written np and filed by the trial court. This statement of law and facts has no connection with the general findings which are usually recited in the judgment itself. Both the special finding of facts and conclusions of law should be entirely separate from the judgment, to the end that the party requesting such finding may except to the “decision of the court on the conclusions of law or equity arising in the case.” This statute clearly means that such exceptions to the court’s conclusion of law shall be saved as may be properly included in a bill of exceptions. The law never contemplates that exceptions shall be written into the record proper.

In actions at law, where the trial court makes a special finding of facts and both parties acquiesce in such finding by neglecting to except to the same as being contrary to or unsupported by the evidence, there is no reason why the losing party by excepting to the conclusions of law, as announced on and applied to such finding" of facts, should not be allowed to have the errors in such conclusions of law reviewed by an appellate court, if he preserves his exceptions to such conclusions of law by a proper bill; and this he may do without bringing up the evidence on which such finding of facts is based.

A finding of facts in actions in equity stapds upon án entirely different footing; for in that class of cases we may retry the whole case de novo, and disregard entirely the finding of facts and conclusions of law. [Fitzpatrick v. Weber, 168 Mo. 562.]

The case at bar is an action at law. The special finding of facts by the trial court was not a part of the judgment. This is disclosed by the action of the appellant in filing in this court a copy of the judgment which is legally sufficient within itself, and nowhere refers to the finding of facts. The defendants have not by bill of exceptions brought to our attention any errors of the trial court in the admission or exclusion of evidence; nor in its conclusions or declarations of ■law. In fact, it seems no declarations or conclusions of law were given or made by the court or requested by either party. The petition is legally sufficient to support the judgment; and with the record in this condition, there is nothing for us to do except affirm the judgment of the .trial court. It is so ordered.

Ferriss, P. J.,, and Kennish, ,J.} concur.

PEE CUEIAM.

— The appellants, by motion for rehearing, call our attention to the fact that the judgment of the trial court in this cause entered on May 21, 1908, in favor of the plaintiffs for the sum of $1377.88, bears interest from the date of its rendition at eight per cent per annum.

This is an error on the face of the record proper; and we have jurisdiction to correct the same, even in the absence of a bill of exceptions.

The judgment of the trial court will be modified here, 'so that it will bear interest at the rate of six per cent per annum, from May 21, 1908; and as modified, said judgment is affirmed. [See. 2983, R. S. 1909; Grilsonite Roofing & Paving Company v. St. Louis Fair Association, 231 Mo. 589; City of Boonville v. Stephens, 238 Mo. 339.]


author: ROT, C. PER CURIAM.

text:
    ANNA M. DAVIS and CHARLES L. DAVIS, her Husband, Appellants, v. A. W. RIEWE ARCHITECTURAL REALTY AND BUILDING COMPANY et al.
    Division Tv/o,
    March 21, 1912.
    FRAUDULENT CONVEYANCE: Corporations: Payment for Capital Stock. R organized a corporation, of which he owned all but two shares of the stock, paying for the stock by conveying real estate to the corporation. His wife joined with him in conveying her homestead and dower interest in the property only upon agreement by the corporation that her interest should be reconveyed to her in other property whenever the homestead property should be sold by the company. After the corporation had become insolvent it conveyed the property in suit to a trustee for R’s wife. Ifeld, that the conveyance to the trustee was voluntary, without consideration and a fraud on the plaintiff, a creditor of the corporation. The corporation had no power to make any agreement to return any consideration paid for its capital stock.
    Appeal from St. Louis City Circuit Court. — Hon. George H. Shields, Judge.
    Reversed and remanded (with directions).

      F. A. S L. A. Wind and F. X. Geraghty for appellants.
    The deed was fraudulent as against plaintiffs, (a) It was fraudulent in fact, under the evidence and without any consideration to the company, (b) If a valid agreement, such as is claimed could be shown by competent evidence, it would be a fraud upon the plaintiffs and other creditors of the corporation, to permit such agreement to be carried out when the corporation was hopelessly insolvent, after the company had obtained credit on the strength of its ownership of the property and without any notice to creditors of the secret agree-meat. Biley v. Vaughan, 116 Mo. 169; Singer Mfg. Co. v. Stephens, 169 Mo. 1. (c) The corporation could not agree, nor could any officer or promoter, agree in its name to return any consideration paid for its capital stock. Haskell v. Sells, 14 Mo. App. 102; Joy v. Manion, 28 Mo. App. 60.

      William Zachritz, A. R. Taylor and Morris Tucker for respondents.
    (1) "We contend that since the original agreement is founded on a valid and good consideration and the transfer to Mrs. Biewe was made in pursuance to that agreement, thereby fully executing the same, it is incumbent on the plaintiff to show by proper evidence: 1st. That Mrs. Biewe knew that the corporation, in transferring the property to her, intended to hinder and defraud the creditors. 2d. That she actually participated in the fraud. The plaintiff has wholly failed, to prove either proposition. Morgan v. Wood, 38 Mo. App. 264; Shelley v. Boothe, 73 Mo. 74; Albert v. Besel, 88 Mo. 150; Frederick v. Allgaier, 88 Mo. 601; Sexton v. Anderson, 95 Mo. 379. The evidence conclusively shows that in transferring the property to the corporation under the agreement with its president, she became the first creditor of the corporation and that the corporation’s indebtedness to her anteceded all other obligations. (2) A party can prefer a credi-' tor and pay any valid indebtedness by sale of part of its assets in the absence of fraud. Foster v. Mill Co., 92 Mo. 87; Meyer v. Folding Chair Co., 130 Mo. 188; Shuflelt v. Smith, 131 Mo. 280. (3) He who comes into a court of equity, must do so with clean hands. This is another, and we think controlling reason, both in law and equity, against the plaintiff. Without any dispute after she was given ample security for her debt, she, by arangement with the president of the corporation, failed and neglected to pnt her deed of trust on recorcl.
   ROT, C.

— This is an action to set aside a conveyanee as being in fraud of creditors. It was tried in the circuit court of the city of St. Louis, resulting in a judgment for defendants, from which plaintiffs appeal.

In October, 1904, A. W. Riewe organized and incorporated the A. W. Riewe Architectural Realty and Building Company, with an ostensible capital of $50,000, of which he owned all but two shares.

Riewe paid for his capital stock by the conveyance to the corporation of a lot of real estate. His wife joined in the conveyance. The testimony of Mrs. Riewe and her husband is to the effect that at the time of that conveyance she owned an interest in the homestead which was part of the property conveyed. The title was in the husband. She had inherited about two thousand dollars and had made a thousand or fifteen hundred dollars by sewing and keeping boarders, all of which had gone into the property. She refused to sign the deed unless she should have the value of her interest in the homestead and the value of her inchoate dower interest in the other property reconveyed to her in other-property whenever the homestead property should be sold by the company. In order to induce her to make that deed the company, acting through her husband, agreed to her proposition. She and her husband and son and Mrs. Prante testified to such a contract. She with her son went soon after to 'California and remained about eleven months. A part of the realty conveyed to the company was Riewe Terrace. On December 30, 1905, the company contracted with the plaintiff to build some flats for her to cost $9800. She advanced it $8000 on ia note and deed of trust executed by the company. She did not record her deed of trust until June 9, 1906, by which time the property included therein had been incumbered to such an extent as to make her security worthless.

The homestead was sold in October, 1905, for $5500, and on April 14, 1906, the property in controversy, subject to an incumbrance, was conveyed to Nettie Prante, a defendant, as trustee for Mrs. Riewe, the equity being worth about $5500. At that time the company has hard pressed. It owed at least fifteen thousand dollars of unsecured bills and had no ready money. Its realty was incumbered, and soon thereafter was foreclosed. The corporation was clearly insolvent at the time of the transfer to Mrs. Riewe. There is no evidence that she knew at that time of the indebtedness to the plaintiff.

OPINION.

I. The corporation had no power to make any agreement to return any consideration paid for its capital stock, and of course no officer or promoter of the corporation had any such power. Nor had they any .power to agree to turn that consideration over to a third party, even though that third party furnished that consideration. It stands conceded that the property conveyed by the joint.deed of the husband and wife was made in payment for the capital stock of the corporation. Mrs. Riewe knew the corporation was being organized, and we have a right to infer that she knew that the property conveyed by her and her husband was in payment for the capital stock. Section 8 of article 12 of the State Constitution provides: “No corporation shall issue stock or bonds except for money paid, labor done or property actually received, and all fictitious increase of stock or indebtedness shall be void.”

In Garrett v. Mining Co., 113 Mo. l. c. 339, it was held: “The contract that the corporation, when organized, should issue stock as fully paid up, when in fact the proposed payment was intentionally fictitious, was an agreement that it would perform an act ultra vires, and which a court of equity will not enforce. [Tobey v. Robinson, 99 Ill. 233; Railroad v. Mowatt, 12 Jur., pt. 1, 407; Le Warne v. Meyer, 38 Fed. 191.]

Plaintiff and the other defendants who were parties to the illegal agreement stand in pari delicto, and neither can enforce the contract against the other. [Green v. Corrigan, 87 Mo. 370; Kitchen v. Greenabaum, 61 Mo. 116.]

As to the subsequent creditors, Mrs. Riewe was in pari delicto with her husband in making the contract, the effect of which was to reduce the act of payment for the capital stock pro tanto a mere sham and a fraud on such creditors. Such being the case, the conveyance of the property to her trustee in April was voluntary, without consideration, and a fraud on the plaintiff.

The judgment and decree is reversed and remanded with direction to enter up a decree in accordance with this opinion.

Blair, G., concurs.

PER CURIAM.

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

All the judges concur.


author: KENNISIT, J.

text:
    CAROLINE J. PEPER, Appellant, v. ADOLPHUS S. PEPER et al.
    Division Two,
    March 21, 1912.
    1. ORDER GRANTING NEW TRIAL: Not Preserved: Appellate Practice. Where the order granting to defendants a new trial is not set out in the. record, the presumption will he indulged, on appeal, in favor of the court’s action, and it will • he upheld if sustainable upon any of the grounds of the motion for a new trial.
    2 -: Appellate Practice: Sustained by Substantial Evidence. Where under the facts and circumstances in evidence it cannot be said that there was no substantial evidence against tlie finding and decree of the court, the appellate court will not hold that the trial court erred in granting to defendants one new trial, where in their motion therefor they aver that the judgment is contrary to the evidence and • that there is no evidence to support the judgment quieting the title in plaintiff.
    3. -: -: Judgment on Merits. But where the appellate court has reached the conclusion that the trial court did not err in granting to defendants one new trial, it will not go further and review the case on the merit's and direct the trial court to set aside the order granting a new trial and render judgment for defendants. There is no final judgment after the order granting a new trial was entered, and the appellate court’s duty, on an appeal from that order, is to, review only the court’s action in granting the new trial.
    Appeal from St. Louis City Circuit Court — Hon. D. G. Taylor, Judge.
    Affirmed.

      Jones, Jones, Hooker & Davis for appellant.

      Joseph S. Laurie for respondents.
   KENNISIT, J.

— This is an appeal from an order of the circuit court of the city of St. Louis, sustaining a motion for a new trial. The action was brought under section 650, Revised Statutes 1899, for the purpose of having the title of the parties to the suit ascertained and adjudged in and to the real estate described in the petition. Plaintiff is the daughter of Christian Peper, deceased, spoken of in the testimony as Captain Peper, and the defendants are the two sons and a daughter of the said Captain Peper, also the husband of the daughter defendant, and the wife of one of said sons.

The real estate in controversy is residence property in said city of St. Louis, particularly described in the petition, and of the value of about forty-two thousand dollars.

It is alleged in the petition, in short, that plaintiff is the equitable owner of the property described; that the said Christian Peper in his lifetime promised to buy a lot of ground in said city and improve it by building a suitable residence thereon and to give.the same to plaintiff; that in the year 1898 the said Christian Peper did buy the lot described, built a residence thereon and gave the said lot and improvements to plaintiff; that plaintiff did then and there accept said property and entered into possession of the same and has retained possession thereof, adversely to every other person, until the institution of this suit, but that said Christian Peper died without having made a deed to plaintiff to said property. It is further alleged that in consideration for said property, plaintiff and her daughter were to entertain said Christian Peper by performing on the piano and by providing a place where he could visit and dine with plaintiff and her family daily; chat these conditions were fully performed by plaintiff, and that plaintiff improved and beautified said lot with flowers, and fruit and ornamental trees, upon the faith of said gift, etc. The prayer is that the right, title and interest of the parties to the suit be ascertained and adjudged by the decree and judgment of the court.

The answer contains as defenses .a general denial, a defense of the Statute of Frauds, and an affirmative defense alleging title to said property in Christian Peper at the time of his death; that said Christian Peper devised said property by his last will and testament to the parties plaintiff and defendant; and prays the court to adjudge the title of said parties thereto, in accordance with the provisions of said will; that having ascertained the title and interest of the parties, the court will order and decree partition and sale of the property, and that the proceeds be divided between the parties according to their respective interests, after deducting from plaintiff’s share such sum as may be due from her as rent for the use and occupancy of said premises.

The reply was a general denial.

Plaintiff introduced evidence to prove these facts: Captain Peper was a very wealthy tobacco manufacturer, engaged in business in the city of St. Louis. He had long made his home in the outskirts of the city with his daughter, Mrs. Bell. His other daughter, the plaintiff, was a widow with two children, and for many years before his decease he had supported her and her family. Plaintiff lived nearer the business portion of the city than Mrs. Bell, and Captain Peper was in the habit of going from his place of business to plaintiff’s home for his noonday lunch and remaining there for some time thereafter, listening to music and being entertained by ilie plaintiff and her daughter. In the year 1898 he suggested the purchase of a lot upon which to build a home for plaintiff. The latter selected the lot. A house was built thereon and furnished, all of which was paid for by the father. There was also testimony tending to prove that Captain Peper made' statements to the effect that he was building a house for the plaintiff; that he was going to build a house for plaintiff and then he was going to huild a house for his other daughter, Mrs. Bell; that he had built the house where his daughter lived and had given it to her. There was much testimony as to statements of the character of the foregoing.

On cross-examination the following facts were brought out: That as long as Captain Peper lived he had the property in controversy assessed in his own name and paid the taxes thereon, and that for several years after his decease such taxes were paid out of his estate. The legal title to the property was in Captain Peper at the time of his death, and when he made his will in August, 1903, being about two months before his decease, after a number of special bequests, it was provided in item six of the will that: “All the rest, residue and remainder of my property of which I may die possessed of, and not hereinbefore disposed of, 1 will, bequeath and devise to my beneficiaries in Item III of this will absolutely, in the' following proportions, to-wit,” etc. Much of his real estate was devised in this clause of the will, and the defendants claim the property in suit was included. It was not specifically described in the will.

The inventory of Captain Peper’s estate was made by his son, Frederick C. Peper, his executor, and the property claimed by the plaintiff in this suit was inventoried as a part of the estate. The said son Frederick, who made his home. with plaintiff, paid rent to the estate on this property for several months after his father’s decease.

Defendants introduced no testimony, and the court found in favor of plaintiff and entered a judgment and decree investing plaintiff with the absolute fee simple title to the property. Defendants filed a motion for a new trial, containing, among others, the following grounds, namely: “(1) The judgment on plaintiff’s cause of action is not warranted by the pleadings or evidence; (2) said judgment is contrary to law; (3) said judgment is contrary to the evidence; (4) there is no evidence to support said judgment; (5) the evidence shows that plaintiff was not entitled to recover.”

The court sustained the motion and granted the defendants a new trial, and from such order of the court the plaintiff appealed.

The bill of exceptions contains a direction to the clerk to insert the order of the court granting a new trial, but fails to set out such order; nor does it appear elsewhere in the-bill. Therefore a presumption will be indulged in favor of the court’s action, if sustainable under any of the grounds of the motion for a new trial. [Stoner v. Royar, 200 Mo. l. c. 451.] Indeed, it is recognized law that even if the order has been fully set forth and the action of the court cannot "be upheld upon the ground assigned by the court, but can be upon another ground, the judgment awarding a new trial will be affirmed. [Candee v. Railroad, 130 Mo. 142; Haven v. Railroad, 155 Mo. 216.]

The scope of the review in this court upon an appeal from an order granting a new trial has been considered in a large number of cases, and the rule is now established that: “An appeal from an order of the circuit court granting a new trial, brings only the ruling of the trial court on the motion for new trial to this court for review. The usual and immemorial practice here obtains in considering the sufficiency of the trial court’s reasons for granting the new trial, to-wit, the appeal is here for review on matters of law, and not on the weight of the evidence, nor is this court to substitute its discretion for the discretion of the trial court.” [Haven v. Railroad, 155 Mo. 216.] The rule is also stated in the case of Karnes v. Winn, 126 Mo. App. 712, as follows: “It is well established in this State that a trial court may, in its discretion, grant one new trial on the ground that the verdict is against the weight of the evidence and that appellate courts will not interfere except in cases where there has been an abuse of such discretion. [Haven v. Railway, 155 Mo. 216.] And the appellate court will not consider that there has been an abuse of such discretion in cases where there is any substantial evidence against the verdict. [Herndon v. Lewis, 175 Mo. 116; Bank v. Rogers, 100 S. W. 534, 123 Mo. App. 569. ] ”

Applying these rules to the facts of this case, our duty to affirm the order and judgment of the trial court is clear, for under the facts and circumstances in evidence it cannot be said that there was no substantial evidence against the finding and decree of the court.

Appellant and respondents have briefed and argued the case fully on the merits, and it is suggested in respondent’s brief that in case of an affirmance of the order of the trial court, this court should remand the cause with directions to enter a decree for affirmative relief in partition, in accordance with the prayer of respondent’s cross-bill.

We are not favorably impressed with that view of our duty in the premises. The case is not before us on appeal from a final judgment on the merits. Our duty is to review the action of the trial court in granting a new trial. If the record presented a case in which such action disclosed an arbitrary exercise of discretion, without warrant of law, we could well reverse the judgment with directions to reinstate the decree or to overrule the motion for a new trial and enter the proper judgment. But we have held that the cohrt, in granting the new trial, acted within the bounds of its discretion, and therefore there is now no final judgment in the case. Under such circumstances and state of the record this court would be encroaching upon the jurisdiction of the trial court if, in the absence of a final judgment, it attempted to direct a disposition of the case on the merits.

In the case of Groves v. Terry, 219 Mo. l. c. 599, a case in some features not unlike the case in hand, after sustaining the action of the trial court in granting a new trial, this court speaking through La.mm, J. said: “We have deemed it wise to let the case go down and take its own course without ruling on questions on the merits discussed by counsel — among others, whether affirmative relief could go to the extent prajmcl by defendants on their form of answer without getting beyond the scope of section 650. [Powell v. Crow, 204 Mo. l. c. 485.] We prefer to pass on vital questions when they come here, if ever, on an appeal from a judgment meeting the approval of a trial chancellor on a hearing in which all the facts are developed, and not by wajr of anticipation on a scant or ambiguous agreed statements of facts.”

We think the foregoing is sound taw and is in point in this case. The case before ns is one addressed to the appellate jurisdiction of the court, and that jurisdiction is invoked only in so far as it calls for a review of the action of the court in granting a new trial. When we have sustained such action, the case then stands in the trial court for a retrial. [Hurley v. Kennally, 186 Mo. 225.]

Our conclusion is that the order of the trial court granting a new trial should be affirmed. It is so ordered.

Ferriss, P. J., and Brown, J., concur.


author: BROWN, J.

text:
    Ex parte GEORGE RICHARD ZORN, Petitioner.
    Division Two,
    March 21, 1912.
    1. INSANITY: Probate Court: Jurisdiction. Probate courts have full jurisdiction to pass upon the sanity of persons brought before them to answer informations charging unsoundness of mind. The Constitution (Sec. 34, Art. 6) expressly authorizes probate courts to appoint guardians and curators for persons of unsound mind, and that power implies the power to pass upon the sanity o.f the person for whom such guardian or curator is to be appointed.
    2. -: -: -: County. The probate court of the county of the residence of the person alleged to be insane, and not that of the county in which he is being confined in a state hospital as a private patient, is the proper court to conduct the inquiry into the alleged insanity of such person.
    3. -: -: -: -:-: Process to Another County. And the probate court of the county of such person’s residence has jurisdiction to send its process to the county in which such person is confined and have it served there.
    4. -: -: -: Process: General Statute: Section 3863. Although the 'statute does not expressly authorize probate courts to send their notices or writs, to other counties to be served upon peisons sought to be declared insane, yet as probate courts are a part of the judicial system oí the State and are empowered by tbe Constitution to pass upon tbe sanity of persons, tbe instrumentalities for invoking tbeir jurisdiction in that class of cases may be prescribed by general law; and that bas been done by Sec. 3863, R. S. 1909, declaring that “all courts shall bave power to issue all writs which may be necessary in tbe exercise of tbeir respective jurisdictions, according to tbe principles and- usages of law.”
    Habeas Corpus.
    Writ denied.

      L. B. Weiss for petitioner.

      Bosaelle, Vineyard & Thatcher for respondent.
   BROWN, J.

— Habeas corpus instituted in this court on February 23,1912, to secure the release of petitioner from Dr. C. R. Woodson’s sanitarium in St. Joseph, Buchanan county, Missouri, where it is alleged he is unlawfully restrained of his liberty.

The sole issue in the case is the alleged invalidity of a judgment of the probate court of Jackson county, entered on October 29, 1909, adjudging the petitioner insane and appointing a guardian of his person and curator of his estate, under the provisions of article 19, chapter 2, Revised Statutes 1909.

When the information upon which petitioner was adjudged to be of unsound mind was filed, he was an inmate of the State Hospital for the Insane at St. Joseph, Missouri, where he had been placed as a private patient without any judicial determination that he was in fact insane. He was placed in the State Hospital by his stepfather, Dr. Louis Zorn, the same person who sued out the writ of habeas corpus in this case.

Since petitoner was adjudged insane and a guardian appointed for him, that guardian has caused him to be confined in Dr. C. R. Woodson’s sanitarium; and if the judgment of the probate court of Jackson county declaring the petitioner to be insane is valid, then the petitioner must be remanded to the custody of Dr. Woodson; otherwise, he must be discharged.

The proceeding to have petitioner declared insane was instituted in Jackson county, because he owned property situated in that county and resided there before he was entered as a private patient at the State Hospital in Buchanan county.

Notice of the proceeding was issued by the probate court of Jackson county to the sheriff of Buchanan county, and by said sheriff duly served upon petitioner in that county. No appearance was made by or for petitioner before the probate court of Jackson county.

In this action the petitioner contends that the probate court of Jackson county possessed no jurisdiction to send its process to Buchanan county to secure service upon him; that there is no statute authorizing a probate court to send its process beyond its county and thereby acquire jurisdiction to adjudge parties insane who are outside of the county where the proceeding is instituted.

Learned attorneys for petitioner and Dr. Wood-son have favored us with exhaustive briefs on every phase of the case; but we do not feel called upon to encumber this opinion with a review of all the authorities cited.

That probate courts have full jurisdiction to pass upon the sanity of persons brought before them to answer informations charging unsoundness of mind, cannot be disputed. Section 34, article 6, of our Constitution, expressly authorizes probate courts to appoint guardians and curators for persons of unsound mind. This power to appoint guardians for insane persons implies the power to pass upon the sanity of the persons for whom such guardians are- to be appointed. This power is as clearly implied as is the power of the probate' court to determine that a property owner is dead before appointing an administrator for Ms estate.

We have no hesitation in holding that Jackson county was the proper place to conduct the inquiry into the alleged insanity of petitioner, because that county was the place of his residence. . One of the objects of article 19, chapter 2, Revised Statutes 1909, is to protect and preserve the property of persons of unsound mind. This is evidenced by the fact that the proceeding cannot be instituted in the probate court if the insane person has no property. It is apparent that the Legislature intended that the guardians of insane persons should be appointed and their estates administered in the county of their residence where their property is located, and where their friends and acquaintances are likely to reside. [State ex rel. v. Wurdeman, 129 Mo. App. 263.] It is true that article 19, chapter 2, Revised Statutes 1909, does not expressly authorize probate courts to send their notices or writs to other counties to be served upon parties sought to be declared insane. Probate courts are part of the judicial system of our State, being created by the Constitution, and empowered by that document to pass upon the sanity of individuals; therefore, the instrumentalities for invoking .their jurisdiction in that class of cases may be prescribed by general law

Article 1, chapter 35, Revised Statutes 1909, prescribing the powérs and duties common to all courts of this State, contains the following section: “All courts shall have power to issue all writs which may be necessary in the exercise of their jurisdictions according to the principles and usages of law.” [Sec. 3863, R. S. 1909.]

To the same effect is section 4061, Revised Stat utes 1909, found in the law defining the power and jurisdiction of probate courts.

The foregoing statutory provisions are a complete answer to the contention of petitioner that there is no statute under which the prolate court may send its citation or other process outside of its county for service upon a party charged by information with being of unsound mind and incapable of managing his affairs.

If the guardian of petitioner is not performing his duty according to law, the remedy pointed out by section 522, Eevised Statutes 1909, can be invoked; and if petitioner has been or shall hereafter be restored to his right mind, he may be released under the provisions of sections 519 and 520, Eevised Statutes 1909. There is no such issue in this case.

Finding that the petitioner is restrained of his liberty by due process of law, the judgment of this court is that he be remanded to the custody of Dr. C. E. Woodson, at St. Joseph, in Buchanan county, Missouri.

Ferriss, P. J., and Kennish, J., concur.