author: GRAVES, C. J.

text:
    ELIZABETH GROWNEY et al., Appellants, v. PATRICK J. O’DONNELL, JOSEPH J. O’DONNELL et al.
    In Banc,
    November 17, 1917.
    1. APPELLATE PRACTICE: No Bill of Exceptions: Questions for Adjudication. -Absent a bill of exceptions, the only question for adjudication on appeal is whether, or not the judgment is such as could have been made on the pleadings. Whether or not the deed held in judgment was procured by fraud or undue influence, or was without consideration, being questions dependent upon the facts established by the evidence and those facts being absent, cannot be considered.'
    2. EQUITY: General Relief. A court once possessed of a cause in equity will not release its hold until full equity has been done to all parties interested therein. Especially is this true where there is, in addition to the prayer for specific relief, a general prayer for relief; for, in such case, the court must consider the full import of the pleadings.
    3. -: -: Cloud on Title: Partial Relief. Where the question for adjudication is the validity of a deed, and the specific prayer is that it be cancelled as a cloud upon the title to the whole tract, the court, Under a prayer for general relief, can grant partial relief, and cancel it as to a part of the tract.'
    4. HOMESTEAD: Deed of Husband Alone: Cancellation. A deed made in 1909 by the husband alone, which conveyed lands of which the unassigned homestead acquired prior to the Act of 1895 was a part, is invalid as to the homestead without the signature of the wife, and as to it may be cancelled" as a cloud upon the title, but .is not invalid as to the rest of the tract, and as to it may be confirmed.
    5. -: Definition: Conveyance. The homestead in the country as defined in the statute means the dwelling house and appurtenances and the land used in connection therewith to the fextent and value of $1500; and it includes only so much of the land as (together with the dwelling house and appurtenances) is worth $1500. It' is only as to that homestead that the statute makes void the individual deed of the husband.-
    6. -: Conveyance by Husband Alone: Valid as to Excess. A deed signed by the .husband alone, who has a living wife, conveying a whole tract owned by him, in which he has an unassigned homestead, is not void as a whole, but is valid as to the excess of land over and above the homestead proper as defined by the statute, subject to the wife’s inchoate right of dower in the excess. [Ruling that such question was not involved in Bushnell v. Loomis, 234 Mo. 371, and that the decision therein was not intended, in view of the facts held in judgment, to announce a contrary rule.]
    7. -: Assignment in Equitable Proceeding. In an equitable proceeding to remove cloud upon title to land, a court of equity has power, both because of its inherent equitable powers .and by the statute (Sec. 6713, R. S. 1909), to appoint commissioners to set off the homestead and the widow’s dower in the whole tract conveyed by the individual deed of the husband, and by that method ascertain from what portion of the land the cloud upon the title is to be removed.
    Appeal from Nodaway Circuit Court. — Hon. J. W. Peery, Special Jtidge.
    Affirmed.

      P. L. Growney and J. H. Sayler for appellants.
    (1) The land having the status of an original homestead, within the limited area, the trial court erred iu finding the deed void only in part. R. S. 1909, .sec. 6704; Bushnell v.-Loomis, 234 ,Mo. 371. (2) The court erred in finding the deed valid as to an‘undetermined excess, and in proceeding under an inapplicable method to ascertain and set out such excess. Crech v. Childers, 156 Mo. 338; Hoselton v.' Hoselton, 166 Mo. 182; Reed Bros. v. Nicholson, 189 Mo. 396; Goodrich v. Brown, 63 Iowa, 347 (cited in the notes to McDonald v. Sanford, 9 Am. & Eng. Ann. Cas. 1, 18 N. W. 894). (3) The. answer by respondents (grantees in the deed) does not allege any equitable right in them — they paid no consideration and ask no. relief in equity, and the decree is not warranted. (4) The answer of Mary A. O’Donnell, respondent, does not warrant the trial court in limiting or determining a homestead. Evidently no one is claiming a “homestead,” and if the deed is void, her homestead right in the whole tract is not affected, and no pleading in the case justifies the decree as to her.

      Cook & Cummins and Shinabargar, Blagg & Ellison for respondents.
    (1) The deed was a valid conveyance of the land in ‘ controversy, subject to the homestead and dower rights of the widow. Stephens v. Stephens, 183 S. W. 572; Fields v. Jacobi, 181 S. W. 65; 15 Am. & Eng. Ency.' Law (2 Ed.), -683; 21 Cyc. ,546. (2) The deed was valid as to the excess of land above the homestead proper. A. The statutory definition of the word homestead is found in Sec. 6704, R. S. 1909. Originally, and in popular, non-technical use now, the word “homestead” denoted the home place, the spot or place where one resides. Elliott v. Thomas, 161 Mo. App. 445; Webster’s New International Dictionary; 2 Words and Phrases (2nd Series), 902; 4 Words and Phrases (1st Series), 3327. The homestead is the tract of limited value or area to which the law accords the special protection mentioned in the statute. White v. Spencer, 217 Mo. 252; 4 Words and Phrases (1st Series), 3329, citing Keene v. Wyatt, 160 Mo. 19; Tyson v. Tyson, 71 Neb. 438; Jones v. Losekamp, 19 Wyo. 83; Smith v. Guckenheimer, 42 Fla. 1; Thorp v. Wilbur, 71 Vt. 266; Bebb v. Crowe, 39 Kan. 342. The statutory prohibition against the conveyance of a homestead by the husband without joinder of the wife, has reference to the homestead proper, and in no sense forbids the alienation of the surplus in the homestead land above the homestead proper by the husband alone. 15 Am. & Eng. Ency. Law (2 Ed.), 684; 21 Cyc. 551. There are a number of Missouri cases on questions closely akin to the one we are considering, which furnish ample support for the view urged. White v. Spencer, 217 Mo. 242; Childers v. Pickenpaugh, 219 Mo. 455. There is another line of cases which bears out the theory we are presenting. It is fundamental law in this State that where a homesteader conveys his homestead proper, even in an effort to defraud his creditors, the latter cannot have the conveyance set aside on account.of such fraud for the reason that the homestead proper is exempt from their claims and they lose nothing by the conveyance. But if the land thus conveyed by the homesteader is in excess of the statutory limitation of size or value, can creditors have the conveyance set aside as to such excess? Most certainly they can, under repeated decisions. Buck v. Ashbrook, 59 Mo. 200; Hart v. Leete, 104 Mo. 336; Rose v. Smith, 167 Mo. 86; Rouse v. Catón, 168 Mo. 288; Balz v. Nelson, 171 Mo. 682; Stam v. Smith, 183 Mo. 469; Reed Bros. v. Nicholson, 189 Mo. 403; Welch v. Mann, 193 Mo. 314; Childers v. Pickenpaugh, 219 Mo. 455. A man can no more will away his homestead proper than he can deed it away without his wife’s joining in the deed. Yet whoever heard of a devise of homestead land being void m toto because the disposition of the homestead proper was inoperative as to the widow? Stoepler v. Silberberg, 220 Mo. 258; Ball v. Ball, 165 Mo. 312. A conveyance of an unassigned homestead estate is valid. Weatherford v. King, 119 Mo. 51; Wilson v. Johnson, 160 Mo. 507. Where a homesteader made a deed of assignment to creditors conveying his homestead land, reserving his “homestead” the conveyance was good as to the excess, and the homestead proper could be set out any time. Hartzler v. Tootle, 85 Mo. 23. (3) The court did not err in appointing commissioners and dower. This procedure was under Secs. 6710 and 6713, R. S. . 1909, authorized in an equity suit like the present case. It has become necessary in this proceeding to sever the homestead. Like in partition, where the homestead proper embraces all the homestead land, a severance is not necessary or possible, but when there is an excess of homestead land above the homestead proper, and a diversity of title or interest as between the owners of the surplus and the owners of the home-, stead proper exists, and the parties interested desire it and are before the court on proper pleadings requesting it, a severance is proper and necessary. Stoepler v. Silberberg, 220 Mo. 270; Brewington v. Brewington, 211 Mo. 64; Quail v. Lomas, 200 Mo. 687; Simpson v. Scroggins, 182 Mo. 571; Houf v. Brown, 171 Mo. 214; Beckner v. McLinn, 107 Mo. 289; Hart v. Leete, 104 Mo. 336; Miller v. Schnebly, 103 Mo. 368.
   GRAVES, C. J.

Plaintiff, the daughter of Patrick O’Donnell, deceased, joined therein by her husband, brings this action in equity to set aside a deed made by Patrick O’Donnell to his sons, Patrick J. and Joseph J. O’Donnell. The petition charges:

“That said Patrick O’Donnell (deceased) was, at the date of his death, the owner in fee of the northwest quarter of the southwest quarter and the east half of the southwest quarter of section thirty, township sixty-three, of range thirty-four, in said Nodaway County, consisting of one hundred and twenty acres, and was residing thereon at the time of his death; and was also the owner in fee of 160 acres of land in Bottineau County, State of North Dakota, described as the southwest quarter of section fourteen, township one hundred and fifty-nine, north of range eighty-two, west, being all the lands owned by the said deceased at said date.
“That said Patrick O’Donnell was aged about seventy-five years and infirm, and on April 16, 1909, did become seized with pneumonia fever and ailments incident thereto, and did become seriously and alarmingly ill from the beginning of his said sickness, with every indication of approaching demise, and did so continue and linger, partly conscious and unconscious, attended by a physician, the family and neighbors, until April 24, 1909, when he died.
“That during said sickness of deceased, to-wit, on April 21, 1909, and while said Patrick O’Donnell was sick unto death as aforesaid, delirious from high fever attendant therewith, rendering him unconscious, weak of mind and body, and evidently approaching death, the said defendants Patrick O’Donnell and Joseph J. 0 ’Donnell fraudulently and wrongfully, and intending to cheat and defraud the other heirs at law of said Patrick O’Donnell, and especially this plaintiff, did induce, compel and cause the said Patrick O’Donnell to make purported deeds of conveyance to all' of the said lands described as aforesaid to them, the said Patrick J. O’Donnell and Joseph J. O’Donnéll.
“That said Patrick J. O’Donnell and Joseph J. O’Donnell, with the connivance and assistance of one Michael M. Calahan, a brother-in-law to them, and a son-in-law of deceased, did procure a lawyer from Mary-ville, the county seat of said county, and twelve miles distant from said O’Donnell’s place of residence, and did, at the said O’Donnell home, at the hour of twelve o’clock at night, on the said date (April 21, 1909) cause to be made a deed of conveyance as aforesaid to the 120 acres of land aforesaid, situated in said Nodaway County, described as aforesaid, for the recited consideration of ‘one dollar’ and the further consideration as recited in said deed, ‘the consideration in this deed is that the said parties of the second part shall pay to the said party of the first part one thousand dollars per year, during the term of' his natural life, payable annually, on the first day of January of each and every year, which consideration is included in a deed between the same parties of even date herewith for 160 acres situated in Bottineau County, North Dakota;’ which
his
.deed purports to be signed ‘Patrick X O’Donnell’ .
mark
and witnessed by ‘M. M. Calahan’ and ‘T. A. Cummings,’ and said deed was.placed on record in the recorder’s office of said county of Nodaway on the next morning (April 22, 1909) at nine o’clock and ten minutes a. m. by the said T. A. Oummings, and appears of record in Book 165, at page 13, in said office.
“That said land so conveyed by said deed, comprised the homestead of said Patrick O’Donnell.
“That said deed was not signed by the wife, Mary A. O’Donnell.
“That said deed to said land so made at said time was' not the act and deed of the said Patrick Ó ’Donnell.
“That no consideration whatever was paid'by the defendants (grantees) to the said Patrick O’Donnell.
“That there was no delivery of the said deed by the said Patrick 0 ’Donnell to defendants, or to any one of them, or to anyone for them; but all that was done relating to said deed or deeds was the fraudulent and wrongful acts of the said defendants, assisted, advised and directed by the said M. M. Oalahan, with his employed counsel, said T. A. Cummings, and all with the intent, design and purpose to cheat and defraud the other heirs at law of the said Patrick O’Donnell, and. especially this plaintiff, and is a cloud on her interest and title therein.”

The answer of the two sons put in issue all the charges in the petition contained. The wife and widow filed a separate answer, in which she says that she understood when the deed was made ’ that she was left her dower interest in the land, and that she only claimed such interest. She admits that the land was the homestead. The chancellor nisi found against the plaintiff on the charges preferred against the defendants, in the plaintiff’s petition contained, and also found against the defendants’ claim that they were entitled to the land, subject only to the dower interest of their mother. The finding of the court was to the effect that the wife had not signed the deed, that she had a homestead therein, and also had a dower interest in the surplus, if the homestead interest set off to her, did not exceed one-third of the whole. In the interlocutory decree the findings are thus stated:

“That on the 21st day of April, 1909, the said Patrick O’Donnell conveyed by warranty deed the real estate hereinbefore described to the defendants Patrick J. O’Donnell and Joseph J. O’Donnell; that at the time of said conveyance the said Patrick O’Donnell, now deceased, had mental capacity sufficient to make said conveyance, and fully understood the character and nature thereof, and that in the execution and delivery of said conveyance he, the said Patrick 0 ’Donnell, was free from'any undue influence or fraud oh the part of any of the defendants by which he was induced to make said conveyance, and that the same was a legal and valid conveyance of said described land to the defendants Patrick J. O’Donnell and Joseph J. O’Donnell, except as to the homestead interest of said Patrick O’Donnell as hereinafter found and stated, and except as to the dower interest of Mary A. 0 ’Donnell, the wife, and now the widow, of said Patrick O’Donnell, deceased, who did not join in said conveyance. The court further finds that the real estate hereinbefore described embraced and comprised the homestead of said Patrick O’Donnell, to the extent and value of fifteen hundred dollars, and that by reason of the failure of the defendant Mary A. O’Donnell, wife of said Patrick O’Donnell, to join in said conveyance, the same was invalid and void as to the homestead interest to the extent and value of fifteen hundred dollars, and was insufficient to convey said homestead interest; that the land hereinbefore described, is of greater value than fifteen hundred dollars, and that said deed and conveyance hereinbefore mentioned was legal and valid as to the excess of said land, and as to all of said land over and above the said homestead of the value of fifteen hundred dollars, subject, however, to the dower interest of the defendant Mary A. O’Donnell, if any, in such excess and part of said land over and above said homestead interest. The court further finds that the defendant Mary A. O’Donnell is entitled to have ad-measured and set off, out of said land, a homestead to the extent of fifteen hundred dollars, and if such homestead of the value aforesaid is less than a one-third interest in said land, then she is entitled to have set off to her one-third interest therein as dower, but the amount of such dower shall be diminished by the amount of said homestead of the value aforesaid. The court further finds that the plaintiff Elizabeth G-rowney, and the defendants Patrick J. O’Donnell, Joseph J. O’Donnell, Hugh J. O’Donnell, Mary Calahan, and Margaret Bradley, being all of the children and heirs at law of said Patrick O’Donnell, deceased, are jointly entitled to the reversion and fee of said homestead of the value aforesaid, subject to the rights and interest of said Mary A. O’Donnell therein in accordance with the statute in such cases made and provided. The court further finds that it is necessary in this proceeding in equity to sever and set off said homestead from the real estate hereinbefore described in accordance with the provisions of section 6713 and 6710 of the Revised Statutes of Missouri of 1909.
“It is therefore by the court ordered and for such purpose the court hereby appoints John Clary, W. O. Pierce and "W. F. Jackson, three competent persons and residents of the county of Nodaway, to be commissioners to set off to said Mary A. O’Donnell a homestead of the value of fifteen hundred dollars in the land hereinbefore described, and if in the judgment of said commissioners said homestead - so set off shall not equal one-third of the whole value of said land, then in addition to such homestead, they shall set off said Mary A. O’Donnell, as dower such further portion of said land as shall, when added to the value of said homestead, make the whole amount of land so set off to said Mary A. O’Donnell equal to one-third of the entire value of said real estate hereinbefore described; and in fixing the value of said homestead, and the value of said dower, if any, said commissioners are directed and instructed to value and appraise said real estate at its value at the date of the death of the said Patrick O’Donnell, to-wit, April 24, 1909; and said commissioners, before setting off said homestead, shall first give to said Mary A. O’Donnell the right and privilege to select or indicate from what part or portion of said tract of land she desires said homestead to be admeasured and set off. And said commissioners shall make report of their proceedings herein at the next term of this court, until which said next term of this court this cause is continued for final judgment, order and decree herein, in accordance with the findings hereinbefore stated and set out.’'

Commissioners'were duly appointed, and they having reported, the court entered the following final judgment in the case:

“Now on this 5th day of November, 1913, the same being the . . . day of the September term, 1913, of the Circuit Court of Nodaway County, Missouri, this cause coming on for final hearing, the plaintiffs appear by their attorneys and the defendants appear by their attorneys, and all parties announce ready for trial, the court doth proceed to take up, hear and consider the report of William F. Phares, John Clary and W>. T. Jackson, commissioners heretofore appointed by this court, to set off dower and homestead to the defendant Mary A. O’Donnell in the following described land, to-wit:
“The northwest quarter of the southwest quarter, and the east half of the southwest quarter of section, thirty, township sixty-three, range thirty-four, Nodaway County, Missouri, consisting of one hundred and twenty acres.
“And after considering said report, and it appearing that no exceptions to the assignment of homestead and dower as made therein have been filed by the parties, said report is in all respects confirmed and approved, and it is hereby ordered, adjudged and decreed that the title to the following described land be vested in said widow, Mary A. O’Donnell, as her homestead, to-wit:
“The south twenty acres of the northwest fourth of the southwest quarter of section thirty, township sixty-three, range thirty-four, Nodaway County, Missouri.
“It is further ordered, adjudged and decreed that the defendant widow, Mary A. O’Donnell, have and retain as and' for her dower in the estate of Patrick O’Donnell, deceased, the following described land, which is hereby set off and assigned to her as dower in excess of her aforesaid homestead, to-wit:
“The south seven acres of the north twenty acres of the northwest fourth of the southwest quarter of section thirty, township sixty-three, range thirty-four, being a strip of land fourteen rods wide north and south by eighty rods long east and west, immediately adjoining said homestead on the north.
“It is further ordered, adjudged and decreed that the plaintiff Elizabeth. Growney, and the defendants Hugh J. O’Donnell, Mary Cal-ahan and Margaret Brady, take no right, title, or interest in any part of the land herein described, save and except an undivided one-sixth each in and to the homestead of said Mary A. O’Donnell, above described, subject, however, to her homestead rights in the homestead hereinbefore described, until her remarriage or death.
“It is further ordered, adjudged and decreed that the defendants Patrick J. O’Donnell and Joseph O’Donnell have and take the sole and exclusive right, title, and interest in and to all of said one hundred and twenty acres of land herein first described, excepting the twenty acres above set out as a homestead to said widow and the seven acres above set out to said widow as and for her dower, and that upon the remarriage or death of said widow, the said Patrick J. O’Donnell and Joseph J. O’Donnell have and take an undivided one-sixth interest each in and to said twenty acres homestead, above described, and an undivided one-half interest each in and to said seven acres, hereinbefore set aside as dower for said widow, upon the death of said widow.
“It is further ordered, adjudged and decreed that the plaintiff Lawrence F. Growney and the defendants Clara O’Donnell, Michael M. Calaban and William F. Brady have and take no right, title or interest whatever in and to any of the above described land, save and except such subsidiary rights as they may respectively have in the interest of their several spouses in virtue of dower or curtesy and their other marital rights, under the laws of this State.
. “It is further ordered, adjudged and decreed that the warranty deed from.Patrick O’Donnell, deceased, to the defendants Patrick J. O’Donnell and Joseph J. O’Donnell, dated April 21, 1909, be and the same hereby is held and adjudged valid and binding to vest title in and to all the land herein described in the defendants Patrick J. O’Donnell and Joseph J. O’Donnell, save as to said homestead and dower hereinbefore described, and that they recover their costs herein expended.”

We have set out these matters fully, because there was no bill of exceptions filed, and the case is here upon the record proper.

I. Absent a bill of exceptions the validity of the deed from Patrick O’Donnell to his sons cannot be here attacked from the standpoint óf the facts held in judgment by the chancellor nisi. We proceed upon the theory that the grantor was mentally capable of making a deed; that he was not coerced, forced or over-persuaded in the making of the deed; that such deed was not fraudulently procured; that it was executed for a valuable consideration; and that it .was duly delivered. We do this, because these were all questions of facts, and these facts are not before us. In the absence of the facts the right action of the trial chancellor is presumed.

Indeed, absent a bill of exceptions, the only question is whether or not the judgment is such as could have been entered upon the issues made by the pleadings.

This is an action in equity, with prayer for general relief. The answer of the two sons is in the alternative. We did not state this fully in our statement, but do so now. These two defendants (grantees in the deed) claimed in their answer (1) that they were possessed of a full title to all the land, subject only to the dower interest of the widow, but (2) in the alternative they asked that, if the chancellor could not so find, and did find that the deed did not convey the homestead, then that the court have the homestead admeasured, and declare the interest of the parties therein. The chancellor compelled the plaintiffs to bring in all parties who might have an interest in the lands, upon any theory of the case.

It is a rule in equity that if the court becomes possessed of a cause in equity, it will not release its hold until full equity has been done all parties interested therein. Thus in Harrison v. Craven, 188 Mo. 1. c. 602, it is said:

“There was no error nisi in finding for respondent on the first count, in so far as the damages claimed were concerned. The trouble does not lie with the right of a court of equity to deal with the subject of damages, were the damages of an allowable character; for a court of equity to deal with the subject-matter of a suit within its grasp, will go on and retain its grasp on the res in order to avoid circuity of action and do rounded-out and complete justice by awarding damages as well as relief in kind. [Baile v. Ins. Co., 73 Mo. l. c. 384; Woodard v. Mastin, 106 Mo. l. c. 362; Morrison v. Herrington, 120 Mo. l. c. 668.]”

Especially is this true where there is a prayer for general relief, as here. In our statement we did not set out plaintiffs’ prayer for relief, but there is, in addition to specific prayer for relief, a general prayer for relief. So that, in this case, we must not only consider the rule in equity first above stated, but also the full import of the pleadings.

II. In this ease the plaintiffs sought the cancellation of the deed, because such deed cast a cloud upon their title. The court by its judgment refused to cancel the deed as to all of the land, but did nullify the effect of the deed as the plaintiff’s interest ™- 20 acres' of the land. The question before the court was the validity of this deed and the effect of such deed under the facts pleaded. Unless precluded by a matter which we discuss next, we do not see that the judgment or decree entered was not one within the purview of the case before the court.

The prayer for specific relief asked for the removal of the cloud of title (created by the deed) from the whole tract of 120 acres, but under the prayer for general reliéf a court of equity could grant partial relief, to say the least, and yet the decree would be within the purview of the pleadings. [16 Cyc. 487.]

III. Equity respects and follows the law, and one of the contentions in this case is, that under the law, the deed was absolutely void as to the whole tract, because such tract of land was the homestead of the grantor, and the wife did not join in the deed. Taking the interlocutory and final judgment together (and this we must do) the point comes up properly on the face of the record proper. The judgment or decree shows that the chancellor held the deed invalid as to the homestead proper, but valid as to the excess. Does this action of the court

do violence to our statutes and the law? This is the principal question. This tract of 120 acres was acquired and made a homestead prior to the Act of 1895, but this becomes immaterial under our ruling In Banc in Bushnell v. Loomis, 234 Mo. 371, which overruled Gladney v. Sydnor, 172 Mo. 318. In the Gladney case it was held that when the homestead was acquired prior to 1895, the homestead lands could be conveyed by the husband, without the wife joining, although he made his deed after the Act of 1895. This rule was changed by the Bushnell case, supra, and we there held that there could be no valid deed made to the homestead proper, without the wife joining, whether the homestead came into being before or after the Act of 1895. The chancellor trying this case followed the Bushnell case, and held that although the homestead had become fixed prior to Act of 1895, ye.t it required the signature of the wife to make such deed valid as to the homestead proper. He further held that the deed was good as a conveyance of all the tract of land in excess of the legal homestead, and of all interests in such excess, except the inchoate dower of the wife. Was the learned chancellor right in this holding? We think so.

The word “homestead” has been loosely used in the opinions. At times it has been made to apply to the tract of land out of which the legal homestead or homestead proper, would have to be carved. But we must determine what is meant by the term “homestead” as used in section 6704, Revised Statutes 1909. That section reads:

“The homestead of every housekeeper or head of a family, consisting of a dwelling house and appurtenances, and the land used in connection therewith, not exceeding the amount and value herein limited, which is or shall be used by such housekeeper or head of a family as such homestead, shall, together with the rents, issues and "products thereof, be exempt from attachment and execution, except as herein provided; such homestead in the country shall not include more than one hundred and sixty acres of land, or exceed the total value of fifteen hundred dollars; and in cities having a population of forty.thousand or more, such homestead shall not include more than eighteen square rods of ground, or exceed the total value of three thousand dollars; and'in cities having a population of ten thousand and less than forty thousand, such homestead shall not include more than thirty square rods of ground, of exceed the total value of fifteen hundred dollars; and in cities and incorporated towns and villages having a population less than ten thousand, such homestead shall not include more than five acres of ground, or exceed the total value of fifteen hundred dollars. The husband shall be debarred from and incapable of selling, mortgaging or alienating the homestead in any manner whatever, and every such sale, mortgage or alienation is hereby declared null and void.”

To what does this statute refer when it says “and every such sale, mortgage or alienation is hereby declared null and void.” That it refers to the “homestead” as mentioned in the previous part of the section there can be no question. The question is what is that homestead? The case here is a “homestead” in the country, and we shall confine our remarks to such a “homestead” and it in the language of the statute is made up of “a dwelling house and appurtenances, and the land used in connection therewith, not exceeding the amount and value herein limited.” The limitations mentioned above are: “such homestead in the country shall not include more than 160 acres,of land, or exceed the total value of fifteen hundred dollars.” So that the statute defines the meaning of ,a homestead proper. By the term “homestead” as used in the statute, is meant the dwelling house and appurtenances and the land used in connection therewith to the extent and value (house, appurtenances and land taken together) of $15.00, but in no event shall the amount of land exceed 160 acres, although the combined value may be less than $1500. This homestead tract may be greatly less than 160 acres, owing to the value of the house, appurtenances and land. And it is this $1500 worth of land and improvements thereon that is the homestead which is referred to when the later clause of the statute makes the individual deed of the husband thereto void. The statute does not have reference to the whole tract out of which the homestead is to be carved.

By appellants we are cited to the Bushnell case, supra, as authority for the contention that the deed is void as to the whole tract out of which (under given circumstances) the homestead would be carved. The writer wrote the opinion in that case, and we had no such idea. -We did use the expression: “In such case she has not joined in the conveyance and the conveyance is wholly void.” The facts of that case must be considered. The land involved was only forty acres and no claim was made that it exceeded in value the $1500. The wife signed a deed of trust thereon when mentally incapacitated to execute such instrument. The forty-acre tract was used as a homestead. The question of there being an excess of land over the homestead proper was not in the case. So this language was never used in a way to mean that the deed of the husband to the whole tract out of which the homestead would be carved, was wholly void, both as to the homestead proper, and the land in excess of the homestead. We had previously strongly intimated to the contrary, in White v. Spencer, 217 Mo. 242. In the White case it was urged that a judgment lien would not attach to any portion of the tract out of which a homestead might be carved. Wé held that the lien would attach to all of the land in excess of the homestead, and as these views contravened some broad language used in Macke v. Byrd, 131 Mo. 682, the White case was sent to Court in Bane, and there unanimously approved. We also held in that case' (217 Mo. l. c. 258):

“The word homestead as here used means a tract of land falling within the statutory limitations as to quantity and we might add, value, although not herein involved. We have properly construed the homestead act to mean that no lien attaches to a homestead proper, that is, to the tract owned, occupied and claimed as a homestead, when it falls within the statutory limitations as to quantity and value.”

It thus appears that the Court in Banc holds that the excess in the homestead tract over and above the “homestead proper” as defined by statutes is subject to a judgment lien. The exact question involved in the case at bar, i. e., is a deed, signed by the husband alone, covering the whole homestead tract, valid as to the excess over and above the “homestead proper,” as defined by statute, has never been decided in this State. The general current of authority holds such deed valid as to the excess, subject, of course, to the inchoate right of dower. In 21 Cyc. 551, it is said:

“The view is sustained by the majority of the courts that a deed .covering the homestead and other lands, or covering a single tract whose value exceeds the statutory exemption, although it be invalid as to the homestead, may yet be sufficient to convey or encumber that portion of the property which is in excess of the statutory exemption. ’ ’

So too in 15 Am. & Eng. Ency. of Law (2 Ed.), p. 684, it is said:

‘ ‘ The various provisions of the statutes to the effect that a conveyance or.alienation of the homestead without the joinder or consent of the husband shall be void or ineffectual have been held not to render it ineffective so far as concerns property covered thereby which is not included within the homestead, the conveyance being regarded as valid so far as concerns any excess, either in quantity or value, over the statutory exemption. This is either expressly or impliedly stated in a number of cases. In other cases ’it is broadly stated that the conveyance is absolutely void without any reference to the question whether it would be valid- as to any excess over the statutory exemption; but these are generally cases in which there was no such excess, and consequently a consideration. of the question of the effect of the conveyance upon, the excess was not called for. Apparently the only case in which a different view from that above stated has been taken was decided in Massachusetts, the conveyance being there held to be void as to all the land covered thereby, though greatly exceeding the value of the exemption. Since then the prevailing rule has been adopted in that State by statute.”

It is evident the word “husband” in the above has been inadvertently used for “wife.’’ This rule seems to us reasonable, and under our statute the only one which could be applied. The purpose of the Homestead Act was to allow the husband, as exempt, $1500 worth of real estate, and in the event of his death this real estate, so exempted, passed to the widow; and children. If the husband had $1500 of real estate upon which he lived, and then 80 acres of the value of $5000, which was not used in connection with the homestead proper, there can be no question that' a deed to both tracts signed by him alone, would carry his title to the 80 acres, subject to the inchoate dower right of his wife. We think in reason that the same rule should apply as to the excess in the homestead tract. Suppose a man had a section of land upon which he lived, and all of it was used as one farm and in connection with the house and appurtenances there, would it be said that the husband’s deed to this 640 acres of land would convey no title or interest to his vendee? Or suppose he only had eighty acres, but the house and south forty thereof was worth more than $1500, would his deed to the whole eighty give the purchaser no title to the north forty? We are satisfied that the husband’s deed to the tract of land out of which a homestead proper is to be carved, will convey all excess to the purchaser, save and except the inchoate right of dower. Such were the views of the chancellor nisi in this case, and we approve them.

IV. It is thus contended in appellant’s brief:

“The court erred in finding the deed valid as to an undetermined excess, and in proceeding under an inapplicable method-to ascertain and set out such excess

The italics are ours. The first of these two contentions we have just disposed of in the foregoing paragraph. W e have, left only the italicized portion. of the contention. As stated, the chancellor nisi had all interested parties brought before him. He then heard all issues and concluded that a homestead should be ad-measured before final decree, and he appointed three commissioners to set out the homestead. The question is, was this proper in this equitable proceeding to remove cloud from title? We thinks so, as said, when courts of equity once become possessed of the res such courts can and should fully determine the matter as to all parties and as 'to all interests. The court' trying this case, in determining whether or not plaintiffs were entitled-to have a cloud upon their title removed, had the right to determine what title if any the plaintiffs had. Not only so, but in what portion of the land, if any, they had a title to be clouded by the deed sought to be canceled. We think the inherent powers of equity would authorize the course here pursued. In other words, the court had the right to determine, as it thought best, the interest, if any, of the plaintiffs in and to this land, the title to which might be clouded by the dispute. So on the broad power of equity, we might rest the case.

But we have a statute, which in our judgment fully covers the procedure ..followed by the learned chancellor. Section 6713, Revised Statutes 1909, reads:

“Whenever, in any case not in this chapter otherwise provided for, it shall become necessary, in any proceeding at law or in equity, to sever or set out any homestead from other real estate, the court in which such proceedings shall be pending may appoint three commissioners to appraise and set out such homestead, which commissioners, after being sworn to the faithful discharge of their duties, shall appraise and set out such homestead in the same manner as is provided in this chapter for setting out homesteads in case of the levy of execution, and make report of their doings to such court, which report shall be confirmed by such court, unless good cause be shown to the contrary; and a record thereof shall be made in the records of lands, where a deed of such homestead would by law be required to be recorded, which shall operate as a severance of such homestead from such other real estate.”

Upon its face the statute contemplates the admeasurement of a homestead in cases not specifically named, and in addition contemplates that courts of equity may resort to the procedure in the chapter named. In fact, it authorizes the appointment of commissioners in suits in equity. So far as the record proper discloses the case was well tried below, and the judgment is affirmed.

PER CURIAM: The foregoing opinion of Graves, J., in Division is adopted by the Court in Banc as the opinion of the Court in Banc.

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


source: Caselaw Access Project

author: RAILEY, C.

license: Public Domain

text:
    THE STATE ex rel. JOHN B. MORGAN, Appellant, v. IDA E. HEMENWAY.
    In Banc,
    November 17, 1917.
    1. TAXATION: Agricultural Lands by City: Exemption: Repeal by Legislature. In the absence of a constitutional inhibition to the contrary (and there was none in the Constitution of 1820), the Legislature was vested with inherent power to repeal a provision in a charter granted by special act of the Legislature in 1853 forbidding the city to levy and collect taxes on lands included within an extension of its corporate boundaries unless and until said lands were laid off into lots. Said act did not create a contractual obligation on the part of the General Assembly to exempt , said lands from city taxes, nor an express or implied agreement to refrain from repealing said exemption or amending said act.
    2. -: -: -: Subject to Subsequent Laws. Lands exempt from city taxation by a special charter granted in 1853 became subject to taxation for city purposes after said city became a city of the fourth class, under the general law of taxation relating to cities of such class, there being nothing in the then Constitution or in the act itself which inhibited the General Assembly from making such property subject to city taxes.
    3. -: -: No Exemption by Subsequent Act. Section 11335, Revised Statutes 1909, does not exempt agricultural or pastoral lands included within the corporate limits of a city which was incorporated by special act of the Legislature in 1845, amended in 1853 so as to include such lands and providing that they were not to be taxed until laid off into lots; and the General Assembly had power, under the Constitution of 1875, to enact said Section 11335, omitting such exemption therefrom.
    4. -: -: Prospective Operation of Constitution of 1875. The Constitution of 1875 was not intended to be so prospective- in its operation as to forbid the Legislature from repealing a provision in the special charter granted to a city in 1853 exempting agricultural lands within its then corporate limits from city taxes. The Constitution in effect declared that the owner of such lands should not after its adoption receive the benefit of any exemption from taxation found in said special charter.
    5. -: -: No Longer Considered Within Corporate Limits. The fact that agricultural land was brought within the city limits ' by' legislative enactment in 1853, and that the exemption of it from city taxation was one of the inducements for bringing it in, and that subsequently the Constitution and statutes repealed that exemption, valid when made in 1853, do not constitute a sufficient reason ior considering the property as no longer within the city’s corporate limits.
    Appeal from Howard Circuit Court. — Hon. A. E. Waller, Judge.
    Reversed and remanded (with directions).

      Calfee & Westhues for appellant.
    (1) Section 3 of the amendment to the charter in question exempting said land from taxation was made null and void by the Constitution of 1875, being in direct conflict with sections 6. and 7 of article 10 of said Constitution. Birch v. Plattsburg, 180 Mo. 413; West-port v. Magee, 128 Mo. 152; State ex rel. v. 0 ’Brinen, 89 Mo. 631; Hislop v. Joplin, 250 Mo. 588; Hayward v. People, 145 111. 55; McQuillin on Municipal Corporations, secs. 291, 295. (2) All laws in conflict with the Constitution of 1875, were repealed on its adoption. Section 1 of the Schedule declared “that the provisions of all laws which are in conflict with this Constitution shall cease upon its adoption.” Deal v. Mississippi County, 107 Mo. 468; St. Joseph Board v. Poetten, 62 Mo. 444. (3) Though section 3 of the amendment to the charter exempting defendant’s land from taxation for city purposes was repealed and made null and void by the constitutional provisions above cited, the other sections of the act extending and defining the city limits are valid and are in force, being separative from the exemption section, and a valid law. Birch v. Plattsburg, 180 Mo. 413; His-lop v. City of Joplin, 250 Mo. 588; Westport v. Magee, 128 Mo. 152; Hayward v. People, 145 111. 55; L. & N. Ry. Co. v. Barboursville, 105 Ky. 174; McQuillin on Municipal Corporations, 295. (4) The Legislature in extending the limits of Glasgow and exempting certain property both real and personal, in said limits from city taxes, recognized that the exemptions in said act were mere privileges and could be . repealed at any time, without disturbing tbe extension section. The Legislature itself repealed the exemption as to personal property, by an act amending the city charter in the year 1873 (see Laws 1872-3, 236, sec. 3), thereby placing their own construction on said act to the effect that it could be amended at any time. The intention of the Legislature was that the exemption could be repealed at any time without disturbing the extension section. Hislop v. Joplin, 250. Mo. 588. (5) It is the duty of the courts to enforce the organic law and to brush aside statutes which conflict with' it whether passed before or after the Constitution was adopted. Deal v. Mississippi County, 107 Mo. 468; Railroad v. Thornton, 152 Mo. 570. (6) The exemption clause in section 3 of the amendment to the charter, exempting defendant’s land from .city taxes, constituted a mere privilege and defendant has no right in the same, and such exemptions may be repealed at any time, by the adoption of a constitutional provision in conflict therewith. Deal v.' Mississippi County, 107 Mo. 468; 5 McQuillin on Municipal Corporations, sec. 2401; Hayward v. People, 145 111. 55; Galloway v. Memphis, 116 Tenn. 738; Powell v. Parkersburg, 28 W. Ya. 698; Prohosco v. Moundsville, 11 W. Va. 501; East Saginaw Mfg. Co. v. East Saginaw, 19 Mich. 259; L. & N. Ry. Co. v. Barhoursville, 105 Ky. 174. (7) Such exemptions may be repealed by implication. Powell v. Parkersburg, 28 W. Ya. 698. (8) Exemptions granted by the Legislature before the Constitution of 1875, and in. conflict therewith, have been held to be .valid, but only when they constituted contracts in a charter granted to some corporation or school, etc., and never in a case like the one before the court now. Deal v. Mississippi County, 107 Mo. 468; Scotland County v. Railroad, 65 Mo. 123; Washington University v. Rause, 3 Wall. (U. S.) 439; Railroad v. Laclede Co., 57 Mo. 147*. (9) When the city of Glasgow changed from a city of the special charter Jo a city of the fourth class, it abandoned the old charter, and 'the exemption section of the Act of 1853 is in direct conflict with the charter of the cities of the fourth class; therefore, the exemption in the old charter is no longer in force and the city has all powers prescribed in the' charter for cities of the fourth class. Among the powers is the power to tax all lands within its limits. 28 Cyc. 244; Westport v. Magee, 128 Mo. 152; State ex rel. v. Young, 259 Mo. 56; Jefferson v. Edwards, 37 Mo. App. 617; Hayward v. People, 145 111. 55; Powell v. Parkersburg, 28 W. Va. 698; Galloway v. Memphis, 116 Tenn. 736; Secs. 9347, 9351 and 9400, R. S. 1909. Section 9400 gives the authority to levy taxes on all real estate within the city limits. (10) Every citizen of a city under a special charter enjoys his citizenship subject to such provisions whereby such city may elect to enter the general class and be subject to all the tax laws. State ex rel. v. Young, 259 Mo. 56. (11) The adoption of a new charter repeals the original charter, although there are no express words of repeal. 28 Cyc. 244; Jefferson v. Edwards, 37 Mo. App. 617; Hayward v. People, 145 111. 55.

      James A. Collet and James H. Denny for respondent.
    (1) Section 3 of the Act of 1853, exempting the land of defendant from taxation, was constitutional and valid under the Constitution of 1820 in force when this act was passed. Kansas City v. Cook, 69 Mo. 127; Lee v. Thomas, 49 Mo. 112; State ex r.el. v. Board of Trustees, 175 Mo. 60; St. Vincent’s College v. Schaeffer, 104 Mo. 261; State ex rel. v. Cemetery Association, 11 Mo. App. 570; Scotland County v. Railroad, 65 Mo. 123. (2) The provisions of the Constitutions of 1865 and 1875, in the matter of exempting property from taxation, were intended to be prospective only in their operation, and did not affect previous exemptions. State ex rel. v. Board of Trustees, 175 Mo. 60; State ex rel. v. St. Joseph’s Convent, 116 Mo. 580; State'ex rel. v. William Jewell College, 234 Mo. 319; State ex rel. v. Cemetery Assn., 11 Mo. App. 570. (3) The cases cited by appellant are all cases of legislative exemptions since the Constitution of 1875, admitted to be unconstitutional, and the only question involved was whether the valid could be separated from the invalid portion of the act in relation to extension of city limits. They are entirely different from this case where the exemption was constitutional and valid, under the Constitution in force when it was passed. (4) But even since the Constitution of 1875 where the exemption clause was an inseparable condition and part of the act, the whole act was held void. Copeland v. St. Joseph, 126 Mo. 429; State ex rbl. v. Wardell, 153 Mo. 319. (5) Exemption from taxation was the inseparable condition on which defendant’s land was annexed to the city, and if either Constitution of 1875 or the act of the city in becoming one of the fourth class did repeal or annul the condition, as claimed by appellant, then the whole act perished with it, and the land is not in the city, and in either event not liable to city taxation. Kansas City v. Cook, 69 Mo. 127; Copeland v. St. Joseph, 126 Mo. 429; State ex rel. v. Wardell, 153 Mo. 319. (6) As section 7 of article TO of the Constitution operated prospectively only, the previous Act of 1853 remained in force until repealed by the Legislature. Section 1 of Schedule, Constitution 1875. (7) A special statute is not repealed by a general statute unless it expressly refers to same. Folk v. St. Louis, 250 Mo. 116; State ex rel. v. Macon County, 41 Mo. 453; State ex rel. v. Greer, 78 Mo. 188; State ex rel. v. Cemetery Assn., 11 Mo. App. 570. (8) The same rules of construction apply to constitutions as to statutes in matters of repeals. State ex rel. v. Greer, 78 Mo. 188; State ex rel. v. Macon County, 41 Mo. 459. This property cannot be lawfully taxed by the city until the Legislature repeals the exemption in the Act of 1853, and confers the taxing power on the city. (9) The Constitution, of its own force, confers no power to levy taxes. The provisions of the Constitution other than the restrictions on rates, require legislative aid. State ex rel. v. Van Every, 75 Mo. 530: Arnold v. Hawkins, 95 Mo. 572; Public School Board v. Patton, 62 Mo. 449. (10) “The taxing power may be exercised by the General Assembly for State purposes, and by counties and other municipal corporations, under authority granted them by the General Assembly, ■ for county and other corporate purposes.” See. 1, Art. 10, Constitution Mo. 1875. (11) “The General Assembly shall not impose taxes upon counties, cities, towns, or other municipal corporations, or upon the inhabitants or property thereof, for county, city, town, or other municipal purposes, but may by general laws,- vest in the corporate authorities thereof the power to assess and collect taxes for such purposes.” Sec. 10, Art. 10, Con-stitution 1875. (12) The power to tax comes from the Legislature, and until it acts giving the authority to levy taxes, there is no power to levy any taxes of any kind whatever. St. Louis v. Wenneker, 145 Mo. 238; Kansas City v: Building & Loan Assn., 145 Mo. 50; Yalle vl Ziegler, 84 Mo. 214; State v. Bailroad, 77 Mo. 202. (13) The Legislature must provide for the taxation of property. The ways and means for the assessment- of property must be provided by law. Omissions in that behalf cannot be supplied by the courts. St. Louis v. Wenneker, .145 Mo. 238. (14) Unless the Legislature exercises its legitimate functions and subjects certain property to taxation it is evident that the constitutional proviso, section 7, article 10, Constitution of 1875,.cannot, because of such lack of legislation, become self-enforcive. Kansas City v. Building & Loan Assn., 145 Mo. 53. (15) The courts of this State have recognized the distinction between property expressly exempted from taxation and property not taxed because the Legislature has not conferred the taxing power. Kansas City v. Cook, 69 Mo. 127; Kansas City v. Bldg. & Loan Assn., 145 Mo. 50; State ex rel. v. Wenneker, 145 Mo. 1. c. 230. (16) The Legislature.has never conferred the power on the City of Glasgow to tax. the land annexed by the Act of 1853; on the contrary, it has withheld the power until such time as this.land is laid off into lots, or until this act is altered, amended or repealed by the Legislature. (17) Cities having special charters were not deprived of them by the adoption of the Constitution merely, without supple-' mentary legislation to that effect. .State ex rel. v. Fraser, 98 Mo. 429; Butherford v. Hamilton, 97 Mo. 547. (18) This exemption right under the Act of 1853 has been expressly preserved by the Legislature in cases where cities reorganize under general law until such time as the General Assembly may see fit to abolish it. Secs. 8530, 9300, R. S. 1909. (19) If the respondent’s property was being brought into the city and subjected, to taxation under present laws, she would have the right to have the court to pass upon the reasonableness of the extension. The city could not arbitrarily, even by vote of the people, extend its limits merely to increase its revenue, without any corresponding advantages to the property owner. Kelly v. Meeks, 87 Mo. 396; Copeland v. St. Joseph, 126 Mo. 417; Hislop v. Joplin, 250 Mo. 588; State ex inf. v. Kansas City, 223 Mo. 162.
   RAILEY, C.

On January 14, 1916, this action was commenced in the circuit court of Howard County, Missouri, by the State, on behalf of John B. Morgan, as collector of the revenue of Glasgow, a city of the fourth class, against defendant, Ida E. Hemenway, for delinquent taxes of the year 1915, assessed against thirty-eight acres of land, situated in section 9, township 51, range 17, located in said city, and belonging to her. It is conceded that the petition is in the usual form.

The answer admits': The incorporation of Glasgow as a city of the fourth class; that said Morgan is the legally qualified and acting collector of said city; that defendant, at the time of the. institution of this suit, and at all the dates mentioned in the petition, was the owner of the real estate described in said petition; that said city has taken all proper steps in the collection of taxes against defendant’s property to entitle it-to recover in this suit, provided the property is subject to levy and collection of city taxes. The answer then pleads as a defense :

“First: That the city of Glasgow was originally organized and incorporated under a special charter, by an Act of the Legislature, approved February 27, 1845, entitled ‘An Act to Incorporate the City of Glasgow,’ and by an act amendatory thereof, approved January 31, 1853, entitled ‘An Act to Amend an Act to Incorporate the City of Glasgow, ’ approved February 27, 1845.
“Second: That said city by virtue of said acts became and remained a city under a special charter, until the 23rd day of March, 1915, when it elected to become a city of the fourth class, under the laws of the State, of Missouri.
“Third: That the original act incorporating said city under special charter did not include defendant’s said real estate, but that said real estate, together with' much other real estate of the same character, was first included in the city limits by the Act of the Legislature of 1853,, amending said original act.
“Fourth: That by-provisions of the amendatory act of 1853, and by which alone defendant’s land became a part of the city of Glasgow, it was expressly provided that the mayor and councilmen of said city should not have the power to collect taxes on any real estate annexed to the city by said act, unless the same was then, or should thereafter be, laid off into lots.
‘‘ Fifth: That defendant’s said real estate was not at that time, and never has been laid off into lots.
“Sixth: That defendant’s said land was at the time of the passing of said amendatory act, and is now, and has at all times beep adapted, fitted and used only as farm and pastoral lands; that it. is of uniform width of 582 feet, fronting south on the -public road, and extending back to Bear Creek, the northern boundary of the city, and containing about thirty-eight acres.
“Seventh: That no other road, street or thoroughfare. of any kind, save the public road extending along the south boundary of said land, traverses or touches it.
“Eight: That said land contains only a single habitation, the abode of defendant.
“Ninth: That the lands adjacent to defendant’s said land are used only as farm and pastoral lands, and have not been subdivided into lots or blocks.
“Tenth: That there has been no increase in the population of the city of Glasgow, since the adoption of said amendatory act of 1853, creating a demand for defendant’s land, or lands adjacent thereto, for residence or other city purposes, or adding to said lands any value distinct from its natural use for farm and pastoral .lands.
“Eleventh: That by said amendatory act of 1853 the Legislature recognized that it would be unfair and unjust to allow lands of the character of defendant’s land, used only for farm and pastoral lands, to be taxed for city purposes, and by said act withheld from the city of Glasgow the power to tax said lands until such time as it should be laid off into lots, and that said lands were brought into the city of Glasgow upon the express terms and conditions that the same were to be exempt from city taxes, until such time as they should be laid off into lots.
“Twelfth: That the terms and conditions of said act of 1853, and all of them, were and are now a binding obligation and contract on the part of the. city of Glasgow, and the owners of the lands therein, and -that said terms and conditions were not. and could not be annulled or abrogated by the city of Glasgow on becoming a city of the fourth class, or otherwise, but still remain a binding limitation upon its power, and that an attempt of the city to tax this property is an unlawful, unreasonable and arbitrary exercise of power.
“Thirteenth: That the city of Glasgow in assuming to tax defendant’s lands, contrary to the terms of the act of the Legislature which brought the land into the city limits, is an attempt to impair the obligation of the contract contained in said act, and to deprive defendant of her property without due process of law, in violation of section 10, article 1,. of the Constitution of the United States, and sections 15 and 30 of article 2, of the Constitution of the State of Missouri, and take private property for public use without due compensation contrary to section 21, article 2, of the Constitution of Missouri.”

A general demurrer was interposed by plaintiff to said answer, on the ground that it failed to controvert the allegations of said petition and because it did not contain facts sufficient to constitute a valid defense in this case. On September 28, 1916, the above demurrer was by the court overruled; plaintiff declined to plead further and a general judgment was rendered in favor of defendant. Plaintiff, in due form, appealed from said judgment to this court.

I. The only question involved in this appeal, is whether or not respondent’s land is subject to taxation by the city Glasgow. A determination of this issue involves the consideration of disputed questions of law.

The city of Glasgow, in Howard County, Missouri, was incorporated under a special act 'of the Missouri Legislature, approved February 27, 1845, and its original charter provisions will be found in the Acts of 1844-5, at pages 141 and following. It is conceded that the land in controversy was not included within the boundaries of Glasgow, by the terms of the special charter of 1845, supra. The Legislature by a special act. approved January 31,1853, reported in the Acts of 1852-3, at pages 251-2, amended the act of 1845, so as to include within the boundaries of Glasgow, the land in controversy. Section one of the amendatory act describes the boundaries of said city and need not be set out here. Sections 2, 3 and 4 of same read as follows:

“Sec. 2. The mayor and councilmen of the city of Glasgow are hereby authorized and empowered to do all acts and things, and to have the same jurisdiction within the limits hereby established, that were conferred by the act of incorporation to which this is amendatory, except as hereinafter provided.'
“Sec. 3. The mayor and councilmen shall not have the power to levy and collect taxes on any real estate unless the same is laid off into lots, or may hereafter [be] laid off into lots; and no taxes shall be levied or collected on any personal property situated upon any real estate not laid off into lots within the above limits.
“Sec. 4. Not less than one-half of the amount of taxes levied and collected from the new limits incorporated within said city, shall be expended in improvement of the new limits.
“This act shall be in force from and after its passage.”

It is conceded by counsel upon both sides — and properly so — that when the Act of 1845, as well as that of 1853, supra, were passed, there was no provision in our Constitution, as it then stood, which forbade the Legislature from passing said acts, or either of them, nor from exempting defendant’s land aforesaid from taxation, as provided in the Act of 1853. On the other hand, without the consent of defendant, the Legislature, in 1853, if it had seen fit to do so, could have included defendant’s property within the boundaries of Glasgow, and have subjected the same to the payment of city taxes like those sued for in this suit. There was no contractual obligation upon the part of the General Assembly to exempt defendant’s property in said city from taxation, at the time of the passage of the Amendatory Act of 1853. Nor was there any express or implied agreement upon the part of the Legislature, to refrain from repealing, amending or otherwise changing said acts of either of them, in the future, so that defendant’s property might be subjected to the payment of city taxes. The Constitution of 1820 was in operation when both the above acts were passed. It contained no language or provisions which precluded the General Assembly of this State from repealing, amending or changing said laws by appropriate future legislation. In the absence of any constitutional provision to the contrary, the Legislature was vested with the inherent power to repeal the exemption of 1853, supra, by permitting the inhabitants of the city of Glasgow, as shown by the record, to become a city of the fourth class, and to be governed thereafter by the provisions of same. [St. Louis v. Russell, 9 Mo. l. c. 511-12; Walden v. Dudley, 49 Mo. l. c. 422; Giboney v. Cape Girardeau, 58 Mo. 141; State ex rel. v. McReynolds, 61 Mo. l. c. 212; Kansas City v. Cook, 69 Mo. l. c. 128; Copeland v. St. Joseph, 126 Mo. l. c. 431; Drainage District v. Turney, 235 Mo. l. c. 93; Hislop v. Joplin, 250 Mo. 588; 1 Dillon on Municipal Corps. (5 Ed.), secs. 92, 355 and following; 4 Dillon on Municipal Corps. (5 Ed.), see. 1394, page 2424; Cooley’s Const. Limitations (7 Ed.), page 266; Cooley on Taxation (3 Ed.), page 111; Washburn v. Oshkosh, 60 Wis. 453; Hayward v. People, 145 Ill. 55; Town of Cicero v. Chicago, 182 Ill. 301; People v. Rock Island, 271 Ill. 412; Graham v. Green-ville, 67 Tex. 62; Cohen v. Houston, 176 S. W. (Tex.) l. c. 813; Winzer v. Burlington, 68 Iowa, l. c. 282; Galloway v. Memphis, 116 Tenn. 736; L. & N. R. R. Co. v. Barbourville, 105 Ky. 174; Walker v. Richmond, 173 Ky. 26; East Saginaw Mfg. Co. v. East Saginaw, 19 Mich. 259; Attorney-General v. Springwells Tp. Board, 143 Mich. 523; State ex rel. v. Kolsem, 130 Ind. l. c. 442; Toney v. Macon, 119 Ga. 83; Probasco v. Moundsville, 11 W. Va. 501; Powell v. Parkersburg, 28 W. Va. 698; Booten v. Pinson, 89 S. E. (W. Va.) 985; Camp v. State, 72 So. (Fla.) 483; McClintock v. Great Falls, 163 Pac. (Mont.) l. c. 101; City of Ensley v. Simpson, 166 Ala. 366; State ex rel. v. Thompson, 69 So. (Ala.) 461; State ex rel. v. Williams, 68 Conn. 131; Berlin v. Gorham, 34 N. H. l. c. 275; People v. Pinckney, 32 N. Y. 377; Phipps v. Medford, 156 Pac.(Ore.) 787; Mt. Pleasant v. Beckwith, 100 U. S. l. c. 529; 28 Cyc. 183.]

Section 7 of article 9 of our present Constitution provides that:

‘ ‘ The General Assembly shall provide, by general laws, for the organization and classification of cities and towns. . . . The General Assembly shall also make provisions, by general law, whereby any city, town or village, existing by virtue of any special or local law, may elect to become subject to, and be governed by, the general laws relating to such corporations.”

The Legislature carried into effect the above provision of our Constitution, and enacted section 8527, Revised Statutes 1909, which reads as follows:

“All cities and towns in this State containing five hundred and less than three thousand inhabitants, and. all towns existing under any special law, and having-less than five hundred inhabitants, which shall elect to be cities of the fourth class, shall be cities of the fourth class.”

Section 8530, Revised Statutes 1909, strongly relied upon by defendant, reads as follows:

“All rights and property, of every kind and description, which were vested in any city under its former organization, shall be deemed and held to be vested in such city upon its becoming reorganized as provided in the preceding section; hut no rights or liabilities, either in favor of or against such city, existing at the time of so becoming reorganized, and no suit or prosecution of any kind shall be affected by such change, but the same shall stand and progress as if no change had been made.”

Article 9 of chapter 84, Eevised Statutes 1909, relates to “Cities and Towns under Special Charters.” .Section 9582, Eevised Statutes 1909, included in said article 9, reads as follows:

“Any municipal corporation in this State, whether under general or special charter, and having authority to pass ordinances regulating subjects, matters and things upon which there is ‘ a general law of the State, unless otherwise prescribed or authorized by some special provision of its charter, shall confine and restrict" its jurisdiction and the passage of its ordinances to and in conformity with the State law upon the same subject.”

The defendant in her answer, admits: “The incorporation of the city of -Glasgow, as a city of the fourth class.”-

Taking a retrospective view of the situation, in connection with the constitutions, statutes and authorities heretofore mentioned, we deduce the following conclusions: (a) That the act of 1853, which incorporated defendant’s property within the boundaries of Glasgow- and. exempted the same from taxation, was valid at the time of its enactment and that said exemption continued, without question, until, at least, the time of the adoption of the Constitution of 1865. (b) That when the above statute of 1853 was enacted, the Legislature had the inherent right — if it had seen fit to exercise it — . to include defendant’s property within the boundaries of said city, with or without her consent, and to have subjected the same to the payment of- city taxes thereafter. (c) That the Legislature of 1853 made no express or implied agreement with defendant, by which it obligated itself to continue said exemption for all time to come. On the contrary, it had the. legal right to amend said Act of 1853, after its passage, during the same session, or at any subsequent session, and to have subjected defendant’s property therein, to the payment of city taxes, (d) That after Glasgow became a city of the fourth class, the property of defendant therein became subject to taxation, just as it would have been had said city changed from a village to a city of the fourth class. In other words, defendant’s property having been included by the Legislature in 1853 within the boundaries of Glasgow, continued therein after the latter became a city of the fourth class, and subject to the general, law of taxation relating to cities of such class.

II. Leaving out of consideration the Constitution of 1865, was the Act of 1853 including defendant’s property within the boundaries of Glasgow, and exempting the same from taxation therein, any longer effective, after the adoption of our present Constitution? The latter became operative on November 30, 1875. Section one of the Schedule of same reads as follows:

“The provisions of all laws which are inconsistent with this Constitution shall cease upon its adoption, except that all laws which are inconsistent with such provisions of this Constitution as require legislation to enforce them shall remain in force until the fffst day of July, one thousand eight hundred and seventy seven, unless sooner amended or repealed by the General Assembly.”

Section 3 of article 10 of above Constitution provides that:

“Taxes may be levied and collected for public purposes only. They shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and all taxes shall be levied and collected by general laws.”

Section 4 of article 10, supra, provides that:

“All property subject to taxation shall be taxed in proportion to its value.”

Sections six and seven of -said article, are as follows :

“See. 6. The property, real and personal, of the State, counties and other municipal corporations, and cemeteries, shall he exempt from taxation. Lots in incorporated cities or towns, or within one mile of the limits of any such city or town, to the extent of one acre, and lots one mile or more distant from such cities or towns, to the extent of five acres, with the buildings thereon, may be exempted from taxation, when the same are used exclusively for religious worship, for schools, or for purposes purely charitable; also, such property, real or personal, as may be used exclusively for agricultural or horticultural societies: Provided, That such exemptions shall be only by general law.”
“See. 7. All laws exempting property from taxation, other than the property above enumerated, shall be void.”

The Legislature, in the enactment of Section 11, 335, Revised Statutes 1909, provided that:

“ . . . Lots in incorporated cities or towns, or within one mile of the limits of any such city or town, to the extent of one acre, and lots one mile or more distant from such cities or towns, to the extent of five acres, with the buildings thereon, when the same are used exclusively for religious worship, for schools or for purposes purely charitable, shall be exempted from taxation for State, county or local purposes.”

It is perfectly manifest from the reading of above statutes and constitutional provisions, that they are in irreconcilable conflict with Section 3 of the Act of 1853, which reads as follows:

“The mayor and councilmen shall not have the power to levy and collect taxes on any real estate unless the same is laid off into lots, or may hereafter be laid off into lots; and no taxes shall be levied or collected on any personal property situated upon any real estate not laid off into lots within the above limits.”

Ten years later, the Legislature repealed a .portion of the above exemption as shown in Section 3 of the Acts of 1872-3, at page 236, which said section reads as follows: “That all persons residing upon real estate within the corporate limits of the city of Glasgow, heretofore exempt from taxation, shall he subject to pay a tax upon their personal property,” etc.

We therefore have before ns a part of the mere exemption privilege granted defendant in 1853, which was subject to repeal at will by the Legislature, and which' became inconsistent with the provisions of the present statute and sections of our Constitution supra. So far as the record discloses, defendant received the benefit of said exemption from 1853 up to 1915, when Glasgow, in due form, became' a city of the fourth class, and subject to the general laws relating to the latter.

III. It is insisted by respondent that the provisions of our present Constitution were intended to be prospective only in their operation, and that they should not be construed as a repeal of the exemptions specified in the Act of 1853. We are not favorably impressed with' this contention. If the plaintiff were suing for taxes alleged to be due the city of Glasgow before the adoption of the Constitutions of 1865 and 1875 respectively, then it might be claimed, that the provisions of said Constitutions should not apply. When the present Constitution of 1875, however, was adopted, it said in legal effect to defendant: You shall not hereafter receive the benefit of any exemption from taxation in respect to the property in controversy under the Act of 1853. Respondent was exercising a mere privilege up to this point, subject to the right of the law-making power of the State to revoke such privilege.

In discussing this subject in Drainage District v. Turney, 235 Mo. l. c. 92-3, Commissioner Brown of this court, in clear and forceful language, said:

“A retrospective law is one which creates a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past. It must give to something already- done a different effect from that which it had when it transpired.
“In this case the only ground upon which a retrospective application of this statute is asserted is that it applies to an object already in existence at the time of its enactment. Were this a good objection it would lead to startling results, for it could be as well claimed that no statute could be enacted imposing new duties upon or giving new privileges or rights to a person already born as that these things could not be done by the Legislature with reference to a corporation already created.
“It may be that in the third paragraph of its answer, the respondent intended to intimate that by taking him into this drainage district and thereby imposing upon him the burden of taxation to pay an indebtedness already created, some other constitutional right of his would be invaded than the one which he specified. If so he has failed to point it out. Notwithstanding the omission, however, it may not be entirely improper to suggest that it seems to be-well settled in this State that the Legislature may give to a municipal corporation the power by its own unaided act expressed in an ordinance, to extend its limits so as to include the property and persons of those having no voice whatever in the transaction, and subject them to taxation for all purposes to the same extent as original members of the corporation, subject only to the qualification that such action must be reasonable. [Kelly v. Meeks, 87 Mo. 396; Copeland v. St. Joseph, 126 Mo. 417.] This being true we cannot see why a public corporation of this character invested with all the necessary power and authority to do whatever should be necessary in the execution of its public functions, could not be invested by the Legislature with authority to procure the extension of its limits by a judicial proceeding in which the reasonableness and necessity of the action is in issue.”

The above quotation expresses our view of the law in regard to the matter before us. We are of the opinion that when the city of Glasgow elected to become, and did become, a city of the fourth class, defendant’s property contained within the boundaries thereof became liable for the payment of the taxes sued for in this action.

IV. Defendant’s counsel make the point that as defendant’s property was brought within the limits of Glasgow in 1853 by legislative enactment, the exemption from taxes was-one of the inducements for bringing said property into the corporate limits of said city, and that, hence, if the Constitution and statutes repealed this privilege, her property should no longer be considered within the corporate limits of said city. The authorities heretofore cited by counsel from this State relating to this question, are based upon the idea that, as the law which declared the exemption was unconstitutional by reason of said exemption, the right'to include defendant’s property within the corporate limits of said city did not exist. We are, however, dealing with an exemption here, which was valid when made in 1853, but was ineffective after the adoption of our present Constitution. The rulings of this court are not in accord with defendant’s contention in respect to this matter. Even if the Legislature had, by enactment, authorized a city like Glasgow to take in and exempt from taxation property like defendant’s the exemption would be unavailing because of the provisions of our Constitution. The right of the city, however, to extend its corporate limits and take in the property, would not be unauthorized merely because an illegal exemption had been provided for in taking the property into the corporate limits. The recent rulings of this court are in accord with' the foregoing views. [Copeland v. St. Joseph, 126 Mo. 417; Birch v. Plattsburg, 180 Mo. 413; Hislop v. Joplin, 250 Mo. 588; State ex inf. v. Jones, 266 Mo. l. c. 198.]

The above contention of respondent has no application, however, to the present controversy, for the obvious reason that the exemption provided for in the Act of 1853, was valid when said law was enacted, and continued to be in force, without question, until the adoption of the Constitution of 1865. The authorities heretofore cited under Proposition I conclusively establish the right of the Legislature to repeal, amend or change the Act of 1853 at will, and without the consent of defendant and others, to whom exemption privileges may have been extended in the original act.

We accordingly rule' that the above contention is without merit when applied to the facts of this case.

V. It is conceded that Glasgow has become a city of the fourth class in due form and that the taxes sued for should be paid, if defendant’s real estate in controversy is no.t exempt from the payment same So far as the record discloses defendant’s real estate has been within the corporate limits of Glasgow since 1853, and she has never paid any city taxes thereon. She has received whatever benefits flowed from her relationship to the city, and ought not to complain at this late day in being called upon to bear some of the city’s burdens. The above conclusion is in accord with the expressed views of this and other courts. [State ex rel. v. Young, 259 Mo. 52; Drainage District v. Turney, 235 Mo. l. c. 92-3; Hayward v. People, 145 Ill. 55; Washburn v. Oshkosh, 60 Wis. 453; Toney v. Macon, 119 Ga. 83; Galloway v. Memphis, 116 Tenn. 736; Cohen v. Houston, 176 S. W. l. c. 813.] Many of the other authorities cited in proposition one are to the same effect.

Other questions are raised and discussed by counsel, which have been duly considered, but we do not deem it necessary to add anything to what has already been said in regard to the merits of the controversy.We are of the opinion that the trial court committed error in overruling plaintiff’s demurrer to defendant’s answer and in entering judgment for the latter. On the record and admissions contained in the answer, the plaintiff was entitled to recover.

The judgment below is accordingly reversed and remanded with directions to the trial court' to enter a judgment for plaintiff and to otherwise dispose of the case in conformity to the views here expressed.

PER CURIAM: — The foregoing opinion of Ratley, C., is adopted by the Court in Banc as the opinion of the Court in Banc.

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


author: ROY, C.

text:
    THE STATE ex rel. LYMAN W. FORGRAVE v. THOMAS J. HILL et al., Appellants.
    In Banc,
    November 17, 1917.
    MANDAMUS: Against County Court: By Justice of Peace for Salary: Remedy. The Act of March 23, 1915, provided for four justices of the peace in townships containing a designated number of inhabitants, to be paid an annual salary of $2000, payable monthly out of the county treasury. Relator was one of the four in such a township, which was the only one of the designated population in the State. He filed a written claim with’ the county court for salary then due and demanded payment. The court refused to allow the claim on the ground that there was no law authorizing its allowance. He then brought this suit by mandamus against the county court to compel them to pay his salary. Held, that, though the’ Legislature may have power to provide for the payment of salaries to justices of. the peace out of the county treasury, it cannot take away from the county the right to call in question both the faets and the law on which the payment of such a salary is demanded; and since the question of whether said statute is constitutional is a judicial one, and the statute gives to relator the right to appeal from the action of the county court in refusing , to issue the warrant, and he has besides the right to sue the county for his salary, he cannot proceed 'by mandamus against the county ' court to enforce that right.
    Appeal from Buchanan Circuit Court. — Hon. Thomas B. Allen, Judge.
    Reversed.

      W. H. Haynes for appellants.
    (1) The relator had the right to appeal from the said final judgment of the county court to the circuit court. Secs. 4096, 4091 and 3956, E. S. 1909. (2) Where the right of appeal exists mandamus does not lie. State ex rel. v. Macon County Court, 68 Mo. 48; State ex rel. v. Marshall, 82 Mo. 488; State ex rel. v. County Court, 83 Mo. 539; State ex rel. v. Megoun, 89 Mo. 157. Where any other adequate remedy exists, mandamus does not lie. (3) Relato^ had the right to sue the county. Givens' v. Daviess County, 107 Mo. 607.

      Charles F. Strop and Graham & Silverman for respondent.
    (1) Mandamus was the proper remedy. Neither appeal nor direct action against the county furnished respondent an adequate remedy at law. High, Extraordinary Legal Remedies (1 Ed.), secs. 17, 104; State ex rel. v. Gilbert, 163 Mo. App.. 679; State ex rel. Emmons v. Farmer, 196 S. W. 1106. (2) The duties of appellants under the Act of 1915 (Laws 1915, p. 324) are purely ministerial. State ex'rel. v. Gilbert, 163 Mo. App. 686; Roberts v. United States, 176 U. S. 221. (3) Ministerial officers cannot raise the constitutionality of an act as an excuse for failure to obey the same. State ex rel. v. Williams, 232 Mo. 75.
   ROY, C.

This is a proceeding by mandamus in . which plaintiff had judgment, and defendants have appealed.

The relator is one of the justices of the peace of Washington Township, Buchanan County, and the defendants are the judges of the county court of that county.

The Legislature passed an'act entitled, “An Act entitled justice- of the peace in townships containing seventy-five thousand inhabitants and not over one hundred and fifty thousand inhabitants,” which was approved March 23, 1915, and is found in Laws 1915, at page 324. Section one of that act provides for four justices of the peace in each of such townships with an annual salary of $2,000 each, payable monthly out of the county treasury. Section two provides that such officer shall, before entering on his duties as such, give bond in the sum of $2,000 to be approved by the county court. Section three provides that the county court may require a new bond whenever any surety shall die, remove from the county or become insolvent. Section four requires such officer to pay all fees collected by him for his services into the county treasury every thirty days, accompanied by a sworn statement by him. Section seven provides for furnishing such justices each with an office, stationery, light and heat, and with a clerk at. a salary of seventy-five dollars per month, payable out of the county treasury. That act went into effect June 19, 1915.

At that time, the relator herein, Lyman H. Porgrave, was one of the four duly elected, qualified and acting justices of the peace of said township. It is agreed by the parties herein that said township is the one in which the city of St. Joseph is situate, and that it is the only township in the State having a population of seventy-five thousand and less than a hundred and fifty thousand.

At the time said act took effect, the relator tendered to said county court a bond in the sum of $2,000 with sufficient sureties, conditioned for the performance of his duties under such act, but the court refused to approve the same. Relator paid into the county treasury all fees v for his services that had been collected by him during the time from June 19, 1915, to August 31, 1915, inclusive, accompanied with a statement of the same.

At the August term of the county court the relator filed in said court a written claim and demand for his salary as such officer for the period above mentioned, amounting to $100, and demanded of said court that it order a warrant to be issued and drawn on the county treasury in favor of the relator for said sum. On September 15, 1915, said court, at said term, heard and considered said claim of relator, and refused to allow it, and its judgment of such disallowance was entered on its record. That entry stated that the reason for such refusal to allow such claim was because there was no law authorizing its allowance. There was no appeal from that order. .

As to the pleadings, we will only say that they are sufficient to raise the points of law here discussed, and there is no contention as to the facts essential to this discussion.

I. The parties disagree as to whether said act of the Legislature has any application to the relator here-That act says nothing special about the justices then in office, and it merely provides that the justices of the peace, before entering upon the. duties of such office shall give such bond. There is no provision for a vacancy in the office if one of the then incumbents should fail to give bond.

We do- not undertake to say whether the act was intended to provide a salary for the persons then holding such offices, but we do hold that this relator is not by that act required to give any bond, and, therefore, that he is not entitled to have an order approving the bond which was tendered by him.

II. We aré of the opinion that the plaintiff is not entitled to proceed by mandamus to compel the payment of the salary which he claims. The defendants claim that the above mentioned act of the Legislature is void for several reasons which' we will not mention. Plaintiff claims that the county court acts merely in a ministerial capacity in passing on such demands, and that it can be compelled by mandamus to issue the warrant necessary for such payment, and that it has no power to raise the question as to the constitutionality of such act of the Legislature.

It may be conceded that an officer who acts in a purely ministerial capacity, such as a county treasurer in the payment of a county warrant properly drawn on him, may be compelled by mandamus to do the ministerial acts required of him, and that he will not ordinarily be heard to question the constitutionality of the law under which such warrant is drawn. [State ex rel. v. Williams, 232 Mo. 56.] There are numerous other cases which neéd not be cited.

There is a sound reason for that rule. It is this: The auditing of demands and claims of various kinds against a county is lodged generally in the' county court. In the case above cited the power to audit and allow the salary of the prosecuting attorney was placed by the law in the clerk of the circuit court. The power and duty to audit a claim against a county carry with them the responsibility of examining into the facts and the law upon which the claim is based. If the claimant and the auditor (whether such auditor is -a person or a so-called court)' disagree as to the facts or the law, the county has the right to have the matter adjudicated by a judicial tribunal. If such auditor allows the claim and issues a warrant for its payment, the .county treasurer acts purely in a ministerial capacity in the payment of such' warrant. The treasurer in such a .case is not concerned with the question of the validity of the original claim against the county.

It is true that the county court in auditing such demands does not act in a judicial capacity. There are many cases so holding. In Reppy v. Jefferson County, 47 Mo. 66, it was said:

“Defendant’s counsel first contend that the rejection of the claim is a judgment; that the plaintiff is concluded by it, and cannot prosecute in the circuit court. This claim. is wholly untenable. The county, court, in auditing claims against the county, is but its financial agent, and not a judicial body. It represents the county, and in the numerous prosecutions against it, from the earliest times, it has never been held that a rejected claim was res ad judicata. [Phelps County v. Bishop, 46 Mo. 68.] The idea that a disallowance of a claim operated as a judgment against the claimant has arisen in part from the fact that an appeal is allowed from such action. This, however, is but a statutory mode of bringing the county into the circuit court, without original process, and the claimant may avail himself of it or commence suit.”

Sears v. Stone County, 105 Mo. 236, and Givens v. Daviess County, 107 Mo. 603, are to the same effect. The last case mentioned was a suit by a county treasurer for his salary. It was there said:

“It must be confessed that there seems, upon first view, to be some conflict in these sections, but we think all conflict disappears when we remember that the county court when engaged in auditing, adjusting and settling accounts is not acting in a strictly judicial capacity, but rather, as the financial, or administrative, agent of the county, and the right of appeal from its order rejecting a claim is merely a summary and inexpensive method of commencing the suit in the circuit court. [Sears v. Stone County, 105 Mo. 236, and authorities cited.] Uijder this construction of these sections we think the presentation of an account to the county court for settlement would have no more effect than a demand for settlement and payment, by a creditor, to any other debtor. The failure to make such presentation would not be available as a defense unless a tender is made of the amount due as provided by section 1018.”

On the other hand the county court does not act ministerially in passing on such claims. In State ex rel. v. Meier, 143 Mo. 439, a ministerial act is defined thus:

“A ministerial act is one which a public officer is required to perform upon a given state of facts in a prescribed manner in obedience to the mandate of legal authority, and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed.”

It ought not to be said that the county court, in auditing such claims, acts “without regard to its own judgment or opinion concerning ' the propriety or impropriety of the act to be performed.” The public good requires that it shall act strictly in accordance with its opinion as to the propriety of such action.

One of the latest utterances of this court on the subject is in State ex rel. v. Diemer, 255 Mo. 336, where we find the following language:

“In the allowance of claims against a county or in settling with county officers, county courts do not act so strictly as a court, or in the performance of a judicial function, that their allowance or disallowance of a claim is res adjudicaba. Something of substance might be said in favor of the contrary theory, but at an early day this court considered our statutes and announced the doctrine, on the reason of the thing and because of a good public policy, that county courts in the allowance of claims, as in settling with officers, acted as a mere public board of audit, as ministerial, administrative or fiscal agents for the county and not strictly as a court, hence we have uniformly refused to apply the doctrine of res adjudicata to their orders allowing or disallowing claims against the county, or to their settlements with county officers.”

A long list of cases is there cited.

That case and the case of Marion County v. Phillips, 45 Mo. 75, are the only ones which we have found that use the word “ministerial” in that connection. The other cases speak of the county court as the “auditing board,” the “fiscal or administrative agent” of the county. So far as we know this court has never held' that the county court can be compelled by mandamus to draw its warrant in payment of a claim against the county where that claim has not been reduced to judgment. The only case which the respondent has been able to cite on that point is State ex rel. v. Gilbert, 163 Mo. App. 679. In that case the county court had by proper entry of record ordered a warrant to issue in payment of the salary of the county counsellor. The presiding judge of the county court refused to sign that warrant. In a proceeding by mandamus to compel him to do so, the Kansas City Court of Appeals, speaking of the statute which provided for the payment of the salaries of county officers, said:

“Under this section, the county court had no discretion whatever. It was bound to issue relator a warrant for each month for the amount of his salary then due, whether there was any money in the treasury or not. It was the only way in which he could get his pay as an officer of the county.”

That language is clearly an obiter dictum. The fact that the claim for the officer’s salary had been audited and a warrant ordered to issue therefor made it the ministerial duty of the presiding judge to sign the warrant. [R. S. 1909, sec. 3789.]

There was no occasion in that case for the court to decide whether the action of the county court in allowing a warrant for official salaries under section 10739, Revised Statutes 1909, was merely ministerial or whether it was that of an “auditing body” or “administrative agent.” The county court had there done its full duty in ordering the warrant to issue, and that proceeding by mandamus was not against the county court to compel the auditing of the claim, but was against the president of that court to compel the ministerial act of signing the warrant.

III. Article 3 of our State Constitution says:

“The powers of government shall be divided into three distinct departments — the legislative, executive and judicial, — each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with, the exercise of powers properly belonging to one, of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this Constitution expressly directed or permitted.”

Although the Legislature may have power to provide for the payment of' a salary to justices of the peace out of the county treasury, it cannot take away from the county the right to call in question both the facts and the law on which the payment of such a salary is demanded. If the county court has no right to raise the question of the constitutionality of said act of the Legislature, then the county must go on paying $8,000 a year regardless of the question as to whether there is any valid law for such payment. It belongs to the executive (or administrative) branch of the government (in this case to the county court) to say whether it will demand that the law and the facts shall be decided by the judicial department of the government before payment is made, and the Legislature cannot deprive the county of that right. In State ex rel. Pittman v. Adams, 44 Mo. 570, it was said:

“But an act declaring a forfeiture, if outside of legislative authority, cannot he strengthened by reciting . facts that might judicially work a forfeiture, unless those facts have been judicially passed upon. An act may recite a judgment of forfeiture as a proper foundation for any legislation warranted by such judgment, but the question of forfeiture is strictly judicial, and the Legislature cannot constitutionally know either that the facts exist or their legal effect. It would be absurd to hold that we are bound by a recital of facts which the Legislature had no right to find, and by an assumption of their effect which it had no right to declare. ”

The question as to whether the statute in controversy here is constitutional is a judicial one. The county has the right to have that question decided by the courts before its warrant is drawn for the payment of relator’s salary.

The statute gave the relator the right to appeal from the action ,of the county- court in refusing to issue a warrant for his salary, and he still has the right to sue the county for such salary. Such being the case, he has no right to proceed by mandamus to enforce such right. [State ex rel. Patterson v. Marshall, 82 Mo. 484; State ex rel. Betts v. Megown, 89 Mo. 156; State ex rel. Carroll v. Cape Girardeau County Court, 109 Mo. 248.]

The judgment is reversed.

PER CURIAM: — The foregoing opinion of Roy, C., is adopted by the Court in Banc ás the opinion of the Court in Banc.

Walker and Williams, JJ., concur; Bond and Blair, JJ., concur in result; Graves, G. J., and Baris and Woodson, JJ., dissent.