author: GRAVES, P. J.

text:
    GEORGE W. TAYLOR v. ST. LOUIS NATIONAL LIFE INSURANCE COMPANY, Appellant.
    Division One,
    December 21, 1915.
    1. INSURANCE COMPANY: Organization: Agent to Sell Stock. Under the statutes (Secs. 6895-6902, H. S. 1909) a charter of an insurance company cannot be adopted until its stock is subscribed, nor is there any corporation until the amount of the proposed stock has been subscribed. The persons designated as “corporators” in those statutes are only given power to open and keep open books to take subscriptions to the capital stock; they have no stock for sale, and are not authorized to sell stock upon the market or otherwise; nor do they have power, in behalf of the corporation, to enter into a contract with an agent to sell stock or proposed stock.
    2. --: -:--: Purpose of Statute. The statutes mean that the cash paid or secured notes given for the stock of an insurance company, at the time, of its organization, shall go into its corporate treasury, and shall not be depleted or diminished by percentages paid to an agent of the corporators for securing subscribers. And they apply in the same way to any surplus obtained from subscribers of the stock.
    3. -: Contract with Agent Prior to Organization. A contract made with the chairman of the “corporators” or organization committee of an insurance company, to’ pay an agent a certain commission on all subscriptions he obtains to the company’s corporate stock, having been made before its organization, is not binding on the company, or enforceable against it.

      4. -: -: Notice of Limited Powers. The “corporators” of an. insurance company prior to its organization, are, under the statutes, agents of limited powers, and any one dealing with them must do so at his peril; and an agent, who enters into a contract with the chairman of the organization committee, who afterwards becomes its president, to obtain subscribers to its proposed capital stock, for a certain commission, is chargeable with notice that such chairman had no power to bind the corporation by such contract, for he is also chargeable with .notice that under the statutes there can be no corporation until after the stock is subscribed, and that all the cash received from subscribers to stock must go into the company’s treasury.
    5. AGENT: Failure to Sell Stock at Agreed Price. Where plaintiff agreed to sell stock at $200 for each share of $100 par value, and for his services was to receive ten per cent of the amount he so sold, he cannot, in a suit on the contract, and not in quantum meruit, recover for stock sold at less than $200 a share. And an agreement by a trust company to put up, for incorporation, purposes mer.ely, an amount of money equal to $200 per share of the stock sold to it, with the understanding that one-half of it is to be returned to it after the company is duly incorporated, cannot be twisted into a sale at $200 per share.
    6. -: Action on Specific Contract: Quantum Meruit. Where plaintiff’s pleadings are bottomed on a specific contract and the case is tried on that theory, a judgment cannot stand on quantum meruit.

    Appeal from St. Louis City Circuit Court. — lion. Wilson A. Taylor, Judge.
    Reversed.

      Collins, Barker & Britton, E. M. Harber and Albert L. Beeves for appellant.
    (1) Defendant’s demurrer to the evidence at the close of plaintiff’s ease should have been sustained, (a) There was no evidence of Starnes’s• authority to bind the defendant. A principal is responsible for the act of an agent acting with apparent authority, only where the principal has clothed the agent with the appearance of power. Taylor v. Sartorious, 130 Mo. App. 34; Duffy v. Mallinkrodt, 81 Mo. App. 449. Starnes could not have bound the defendant by wrongfully assuming to act as its president. Art. 2, chap. 61, R. S. 1909. (b) There was no evidence of Webb’s authority to act as agent for the Missouri-Lincoln Trust Company in the purchase of the stock. Taylor v. Sartorious, 130 Mo. App. 24; Lyons v. Corder, 253 Mo. 551. (c) There was no sale at $200 per share, in compliance with the terms of plaintiff’s alleged contract with Starnes. Young v. Cooperage Works, 259 Mo. 220. (d) Plaintiff was not the procuring cause of the sale actually made. (2) Defendant’s peremptory instruction as the close of the whole case likewise should have been sustained. (3) While the appellate court will not disturb the verdict of the jury upon a question of the weight of evidence, it will not hesitate to do so where the verdict is not supported by the evidence. Lyons v. Corder, 253 Mo. 561; Gfraney v. Railroad, 157 Mo. 678; Powell v. Railroad, 76 Mo. 84; McFarland v. Accident Assn., 124 Mo. 222; O’Donnell v. Railroad, 152 Mo. App. 614; Fitzjohn v. Transit Co., 183 Mo. 78; Kni’sely v. Leathe, 178 S. W. 461; College v. Dockery, 241 Mo. 522. (4) The judgment of the lower court should be reversed without remanding. Knisely v. Leathe, 178 ¡8. W. 461; College v. Dockery, 241 Mo. 522.

      Marion C. Early for respondent.
    (1) The petition alleged that defendant was a corporation duly organized, and this allegation not being denied under oath, it is admitted. Under the pleadings and the evidence it was a corporation de jure at all times from and after the date of plaintiff’s contract. (2) The defendant held itself out as a corporation; it allowed Starnes to advertise himself as its president; it allowed him to act for it in tlie sale of a portion of its stock; it accepted the results of the contracts' made by him and under the facts disclosed it is, as to third persons dealing with it in good faith, a corporation de facto in any event and it is liable to third persons for its acts. Camp v. Byrner 41 Mo. 525; Knapp v. Joy, 9 Mo. App. 575; Brown v. Scottish American Mortg. Co., 110 111. 235; Montgomery v. Hurst, 9 Ala. 513; Douglas County v. Bolles, 94 U. S. Í04; Bank v. Trust Co., 187 Mo. 494; Wescott v. Guarantee Ins. Co., 63 Mo. App. 366; Famous Ins. Co. v. Medies, 52 Mo. 17; National Ins. Co. v. Bowman, 60 Mo. 252; Rag’an v. McElroy, 98 Mo. 349; Studebaker Bros. Mfg. Co. v. Montgomery, 74 Mo. 101. (3) It is' well settled that when an officer of a corporation is allowed to exercise a particular authority publicly, in other words, if be is in effect held out to the world as having authority in the premises, the corporation is bound by his acts in the same manner as if the authority were expressly granted, in which case it is not necessary in order to charge the corporation to prove special authorization. Fayles v. Ins. Co., 49 Mo. 380; Slothard v. Aull, 7 Mo. 318; Lungstrass v. Ins. Co,, 57 Mo. 107; Ceeder v. Lumber Co., 86 Mich. 541; Ferry Co. v. Sidell, 66 Fed. 27, 13 C. C. A. 308; Thompson on Corp., secs. 4876-4882; Chenoweth v. Express Co., 93 Mo. App. 199; Moon v. Mfg. Co., 113 Mo. 98; Rosenbaum v. Gilliam, 101 Mo. App. 126; Tyler Estate v. Hoffman, 146 Mo. App. 522. (4) Even if Starnes had no authority to enter into a contract with plaintiff the defendant is estopped to deny its' liability because it acquiesced in Starnes’s act by accepting and retaining the fruits thereof. Ferguson v. Trans. Co., 79 Mo. App. 352; Glass v. Brewing Co., 47 Mo. App. 641; Drug Co. v. Robinson, 81 Mo. 26; Railroad v. Vamedoe, 81 Ga. 175. (5) The defendant recognized the authority of Starnes to bind it by the contract with plaintiff by part payment to plaintiff for services rendered under the contract. The evidence shows defendant’s contract to pay plaintiff a stated sum was the usual amount it was paying for such services. Fayles v. Insurance Co., 49 Mo. 380; Stohard v. Aull, 7 Mo. 318 ,- Bank v. Bank, 107 Mo. 145. (6) The fact that der fendant on its own motion may have made a contract whereby in the end it may have received a less consideration than it authorized plaintiff to offer, does not deprive plaintiff of his right to a commission An the amount realized. If in the opinion of the court the verdict is excessive the court is empowered to' order a remittihor. Nichols v. Whitacre, 112 Mo. App. 692-, Grether v. McCommack, 79 Mo. App. 325; Glade v. Mining Co., 129 Mo. App. 455; Smith v. Salt Go., 177 S. W. 1057.
   GRAVES, P. J.

This is an action to recover commission for the sale of stock of the Universal Insurance Company, later by authorized change of name the present defendant, St. Louis National Life Insurance Company. Plaintiff sues upon an express contract to sell such stock at $200 per share of $100 par value, and to receive for such service the' sum of ten per cent of the amount of stock so sold.' He then avers he was the procuring cause of the said defendant having sold $75,000, in par value, or 750 shares, at the price and sum of $200 per share, and asks judgment for $15,000 and interest, less a payment of $200 which he avers to have been made.

The action is one clearly upon contract and not upon quantum meruit.

By the petition it would seem that there had 'be'éh a settlement with plaintiff for $200, hut this he avers to have been procured and induced by. fraudulent statements, and it is for this $200 that'he gives credit on the claimed commission of $15,000.

The answer was a general denial. From á vérdict and judgment of $19,405.50, the defendant has appealed. Further facts will he stated in tiré course of the opinion under the points involved.

The first point urged by the defendant, is that the plaintiff had no valid contract with the defendant, an<^ as mUCh as his OWn proof shows such fact, the demurrer to the testimony interposed by the defendant should have been sustained.

It is clear from all the evidence in this case that the organization of the Universal Life Insurance Company was not completed at the time plaintiff says that he contracted with it through P. M. Starnes. It could not have been completed until after the stock had been fully subscribed. It was not fully subscribed at the time of plaintiff’s alleged employment. He testifies that he was introduced to P. M. Starnes as the president of the company, and that the sign at the office door was, ‘ ‘ Universal Life Insurance Company ,• P. M. Starnes, President.” In this discussion we are granting it to be true that P. M. Starnes actually made the contract with plaintiff, as such contract is pleaded in his petition. Under all the evidence it was made with Starnes, or not at all. Defendant’s testimony is to the effect that Starnes, prior to the subscription for all the stock, was merely a member of the organizing committee. The evidence is undisputed that at the time of the alleged employment of plaintiff to get subscribers to stock, only one-half of the proposéd capital stock of the corporation had been subscribed. The proposed capital stock was 1500 shares of the par value of $100 each, but subscribers were taken on the basis of $200 per share, so as to create a surplus equal to the capital stock. Plaintiff’s claim is that he induced the Missouri-Lincoln Trust Company and Mr. Webb to take the last half of the 1500 shares, or 750 shares at $200 each. This is the basis of his action. It shows upon its face that the insurance company was not then organized, because it could not have been organized. It shows upon its face that Starnes was not president, because he could not have been president at that time, i. e., prior to the completed organization. The records are plain in this case, and even the way-farer cannot go far astray. On July 10,1907, the following records appear:

11:30 a. m. July 10, 1907..
The committee met in full at 11:30 a. m. Messrs. Blanke, Rassfeld, Goerts and James present, and called to order by Chairman Blanke.
Proposition was presented by Rassfeld and read by him from Barten in Litchfield, III., for completion of organization. On motion by Rassfeld and seconded by Blanke, this proposition was rejected.
Proposition submitted by the Mississippi Valley Life Ins. organization committee was on motion tabled for future consideration.
Proposition from P. M. Starnes not being completed, on motion committee adjourned to meet at 5:30 p. m. July 10, 1907..
Otto H. Rassfeld, Sect.
5:30 p. m. July 10, 1907.
Committee meeting called to order, Messrs. Blanke, Rassfeld, James and Goerts being present, by Chairman Blanke.
Proposition of P. M. Starnes submitted and read by Rassfeld. After careful and thorough consideration and investigation, on motion by Rassfeld, seconded by James, the committee voted to accept same.
On motion of James, seconded by Blanke, P. M. Starnes' was elected a member of the committee, and chosen as chairman.
On motion, committee adjourned to meet at call.
Otto H. Rassfeld, Sect.

These entries show that Starnes first became connected with the organization committee, not the corporation, on July 10,1907.

On July 20th, after the stock deal with the Missouri-Lincoln Trust Company, the “first meeting of incorporators of the Universal Life Insurance Company” was had. Át this meeting the first board of directors was selected, and the organization committee was directed to report expenses of the organization.

On the same day Mr. -Lewis was made chairman of the board of directors, and P. M. Starnes, president of the company, and J. A. Webb, secretary and treasurer of the company. It therefore stands out in hold faced type that Starnes was not and could not have been president of the defendant at the time of the alleged contract with plaintiff.

At most he was, in fact, but the chairman of the' organization committee. Now on these facts we must apply the law.

That the organization of the Universal Life Insurance Company (the first name of the defendant, and it might not be amiss to say that it is now the Pioneer Life Insurance Company of Kansas City) was not completed at the date of the alleged contract with plaintiff, is made clear by the statute. Defendant was to be organized as a joint stock company, under and by authority of what is now article 2, chapter 61, Revised Statutes 1909.

Section 6898 of this article reads: “The persons mentioned in section 6895 shall be designated as corporators, and such corporators, desiring to form a company for the purpose of transacting the business mentioned in said section 6895, or any part of the same, shall file in the office of the superintendent of the insurance department a declaration signed by each of' said corporators, setting forth the place of residence of each of them, and their intention to form a' corporation for the purpose of transacting the business' aforesaid, which declaration shall comprise a copy of the charter proposed to be adopted by them; and they shall publish once in each week, or oftener, for at least four weeks, in a newspaper of general circulation, published in the county where such corporation is proposed to be located, a notice of the filing of such declaration, together with a copy of the same.”

Note the language as to the charter. This section simply says that this preliminary declaration shall contain “a copy of the charter proposed to be adopted by them.” Then follows section 6899, which provides what this proposed, not adopted, charter shall contain.

Following this is section 6900, some parts of which we have italicized: “Whenever the corporators shall have filed the declaration required by section 6898, and also proof of the publication therein required, by the affidavit of the publisher of the newspaper in which the publication was made, his foreman or clerk, with the superintendent of the insurance department, it shall be the duty of said superintendent to submit such declaration to the Attorney-General of this State for examination, and if it shall' be found by him to be in accordance with the provisions of this article, and not inconsistent with the Constitution and laws of this State and the United States, he shall so certify and deliver it back to the superintendent, who shall cause the said declaration and affidavit, with the certificate of the Attorney-General, to be recorded in a book kept for that purpose, and shall furnish a certified copy of the same to the corporators, and shall also file a certified copy of the same with the Secretary of State, who, upon payment into the State Treasury of the tax required by section 2976, shall issue a certificate of incorporation, upon the receipt of which they shall be a body politic and corporate, and may proceed to organize in the manner set forth in their charter, and to open books for subscription to the capital stock of .the company, and keep the same open until the whole amount specified in the charter is subscribed, but it shall not be lawful for such company to issue policies or transact any business of any kind or nature whatsoever, except as aforesaid, until they have fully complied with the requirements of this article.”

It must be seen that in the formative period the powers of the “corporators” are extremely limited. Their only power is to open hooks for subscription to the capital stock, and keep them open until the proposed charter amount has been subscribed. Then we have setcions 6901 and 6902, which read:

“Sec. 6901. Upon being notified that the capital stock named in the charter has been subscribed, and one hundred thousand dollars thereof paid in, the superintendent shall make an examination, or cause to be made by some disinterested person specially appointed by him for that purpose, and if it shall be found by himself, or if the person so appointed shall certify, under oath, that the provisions of section 6920 have been complied with by said company, as far as applicable thereto, which certificate, when made, shall set forth the particulars of such compliance, then the superintendent shall so certify, and the corporators or officers of such company shall be required to certify, under oath, to the person making such examination, that the money, notes, stocks, bonds, mortgages and deeds of trust exhibited to him are the bona-fide property of said company.”
“Sec. 6902. When the corporators have fully complied with the requirements of the preceding sections, and the laws of this State governing the organization of private corporations, and said corporation has deposited with the superintendent of the insurance department the amount of capital required to be deposited by section 6922, and shall have'filed with the superintendent a certified copy of the certificate of incorporation issued by the Secretary of State, it shall be his duty to furnish the company a certificate of such deposit, and his certificate of authority for it to commence the business proposed in its charter which, with the certified copies of the aforesaid declaration and certificates, on being filed and recorded in the office of the recorder of the county in which the company is t.o be located, shall be its authority to commence business and issue policies; and such certified copies of the declaration certificates and certificate of deposit may be used in evidence for or against said company, with the same effect as the originals.”

The statute does not in terms say when the “proposed charter’ ’ shall in fact be agreed to, and adopted, but it could not be adopted until the stock was subscribed. The. original stock holders are the parties, who can agree to and adopt articles of association or charters. By the terms of the statute the “corporators” as designated in the several sections are only given power to open and keep open books to take subscriptions to the capital stock. They have no stock for sale, and are not authorized to sell stock upon the market or otherwise. They only have proposed stock to be subscribed for by those desiring to become stockholders in the proposed corporation. Under these statutes there is no corporation until the amount of the proposed stock has been subscribed. It is then, and not until then, that there can be a meeting of stockholders to select a board of directors, or to adopt the proposed charter or articles of' association. The record before us would indicate that the parties organizing this defendant took this course. All the proceedings seem to appear in the name of the organization committee, until the time came when, as they thought, all the proposed charter capital had been subscribed, whereupon they all met, adopted the proposed charter, selected the board of directors, and such board in turn selected the officers, which we have named. This, however, was all done subsequent to the alleged employment ‘of plaintiff. At the time of plaintiff’s employment, neither Starnes, nor his committee, had any stock to sell. Neither Starnes nor his committee had any statutory power to do more than to open and keep open the subscription book. The power granted the original “corporators” by these statutes is not to sell stock at any agreed price, but to take subscriptions to stock in a proposed corporation, which may or may not reach the point of a corporation. The power to open subscription books and receive subscriptions (and this is the only power conferred by statute) is not broad enough to authorize them to hire an ag-ent to sell stock, for they had none to sell.

To my mind there is a clear purpose in these statutes. That purpose is to have in the hands of the corporation at its final organization the proceeds of the stock subscribed for, whether those proceeds be the cash required to be paid in on such subscriptions, or the secured notes given for the other portion of such subscription. Their purpose is to frustrate a small coterie of corporators from standing to themselves, in an inner ring, as it were, and absorbing a portion of the assets of the proposed corporation at or before the time of its final incorporation. They were designed to have in the treasury at the organization the capital spoken of in the charter.

But whatever the legislative purpose in expressly limiting the power of the original “corporators” as they are designated in the law, the courts can only take the laws as they find them. These laws are not broad enough to authorize the original “corporators” to hire agents to sell stock or proposed stock. We might as well meet the issue squarely, and we do so meet it. Power to open books and take subscriptions to proposed stock, means that the subscriber, and each of them, subscribe for and pay for their stock under the terms of the statute, and that the cash paid or the secured notes given, shall go into the corporate treasury, and it does not mean that the corporators themselves or through hired agents, can obviate this purpose. If they possess the power of giving an agent ten per cent to secure subscribers, if difficulties in getting subscribers required it, more might be given. Nor does the fact that they agree upon a surplus change the situation. The surplus, if agreed upon as a charter measure, is as much of a trust fund as is the original capital.

We shall not go further in argument. It is sufficient for us to say that the statute has given these corporators no power to employ and pay agents to dispose of stock or proposed stock, and absent this power the alleged contract with plaintiff must fall.

No doctrine of law is better settled than that which says that one who deals with an agent of limited power must deal with him at his peril. These ‘ ‘ corporators ’ ’ were agents with limited power under the statute. The plaintiff in this, case knew when he was dealing with Starnes that the corporation stock had not been subscribed. It may be a violent presumption, but it is one nevertheless, that each citizen is'presumed to know the law and must make his acts accord therewith: Knowing that the stock had not been subscribed, as plaintiff admits, he, under the law, knew that Starnes could not be acting otherwise than a mere corporator. He knew that as to the proposed corporation these corporators were mere agents with limited power. He.dealt with them therefore at his peril. If they or either of them, made the contract with him, his benefit under the contract must be measured by the power of these agents to make it. If they had no such power, as we hold, then he had no valid contract, and we so hold. contract. That contract is that he was engaged to sell stock or procure buyers for stock, or subscribers for stock at $200 for each share of $100 par value, and’ for services thus rendered, was to receive ten per cent of the amount he so sold. His pleadings are bottomed upon this theory.

Suit on Contract. There is at least another question in this case that settles it adversely to the plaintiff. . Plaintiff does not sue in quantum meruit. He sues upon a specific 'Iiis instructions nisi are upon this theory. Upon this theory (the theory upon which the court nisi proceeded throughout) his evidence totally failed. No fair reading of the evidence given will show that the plaintiff sold any stock to the Missouri-Lincoln Trust Company at $200 per share. The uncontradicted proof is that the sale (if it can be called a sale) was made at a price very much less than $200' per share.

It is true that when it was found that the corporation could not be completed, the Missouri-Lincoln Trust Company put up about $28,000 more than it had agreed to pay, for incorporation purposes merely, with the understanding that this was to be returned, after the corporation was duly incorporated. It had in the first instance only paid what it had agreed to take over the stock at, viz., $28,000 or more, less than $200 per share. This slight-of-kand performance for purposes of evading the corporation laws of this State cannot change the contract price. So that upon the theory upon which this case was pleaded and tried, there was a failure of proof, and the demurrer to the testimony should have been sustained.

The judgment nisi should be reversed and it is so ordered.

All concur.


source: Caselaw Access Project

author: BOND, J.

license: Public Domain

text:
    JAMES W. HARTER v. WILLIAM T. PETTY et al., Appellants.
    Division One,
    December 21, 1915.
    1. JUDGMENT OF PROBATE COURT: Collateral Attack. As to ' all matters of administration of estates, the orders, judgments ■ and proceedings of the probate court, made in furtherance of the statutory powers devolved upon it, are not subject to collateral attack, unless it affirmatively appears in some portion of the entire record that the steps necessary to the acquisition of jurisdiction were not taken.

      2. -:-: Silence of Record. Mere silence of the record is not sufficient to overcome the presumption that, a given judgment of a prohate court was rendered after jurisdiction attached.
    3. -: -: Sale of Property Under Execution. Where a legacy was given to a named legatee, there was money in the hands of the executor sufficient to pay it after all debts and other legacies as shown by the annual settlement had been paid, and more than two years had elapsed since letters testamentary had been granted, it will not be held, in the absence of any contrary showing by the record, that the probate court was without jurisdiction to make an order directing the legacy to be paid and to award execution thereon against the executor; and a sale of the executor’s land by the sheriff in pursuance thereof, will not be held invalid on the ground that the probate court was without jurisdiction.
    4. BELATED NOTICE OF ADMINISTRATION: Payment of Legacy. The fact that the executor delayed for nearly two years after letters testamentary were issued to him the publication of notice of administration will not avail him in an attempt to defeat the sale of his land under execution, in pursuance to an order of court to pay a legacy, made more than two years after the letters were issued, but less than two years after notice was given. He cannot invoke his violation of the statute requiring him to give notice within thirty days, as a ground for defeating either the order or execution.
    5. INTEREST ON LEGACY: Collateral Attack. Whethér or not the probate court erred in allowing interest on the legacy from one year after the grant of administration, instead of from the date of demand for the legacy and refusal to pay it, is of no concern in a collateral attack. Such mistakes, if in fact mistakes, could have heen corrected on appeal, and since the probate court ,had jurisdiction of the matter, its judgment cannot be avoided by a collateral attack.
    Appeal from Clinton Circuit Court. — Hon. Alonso D. Burnes, Judge.
    Affirmed.

      W. S. Herndon for appellants.
    Appellant submits that tbe sheriff’s deeds, upon wbicb plaintiff bases his right to recover in this case, did not convey any title for the following reasons : (1) The probate court was without jurisdiction to make the order, in this: There must he a finding at some settlement that there are sufficient funds in the hands of the executor or administrator, after paying all debts and costs, to pay legacies or distributive shares before the' court can make such order. Sec. 246, R. S. 1909. In order for the court to determine that there are sufficient funds, the time for proving up claims against the estate must have expired. The time had not expired when this order was made, for the reason the notice of grant of letters was not published until April, 1909. Sec. 191, R. S. 1909; Clark v. Sinks, 144 Mo. 449; State ex rel. v. Grigsby, 92 Mo. 419. (2)- The order was not made at a settlement. There is no provision of the statute which gives a legatee the right to sue for a legacy in the probate court by giving the executor notice that he will apply for such order. The first annual settlement was made May 12,1909, and the second on June 22, 1911. (3) There was no finding by the court that there were sufficient funds in the hands of the executor, after paying all demands and costs, with which to pay the legacy. Sec. 246, R. S. 1909. Counsel for Tucker recognized that such a finding was jurisdictional and made that averment in their motion. The court did not even sustain the motion, but simply ordered the legacy paid with interest. Brown v. Glover, 158 Mo. App. 399. Probate courts are courts of limited jurisdiction and nothing is presumed. Record must show affirmatively that it had jurisdiction. Gibson v. Yaughn, 61 Mo. 418; Strouse v. Drennan, 41 Mo. 289; State v; Metzger, 26 Mo. 447; Ex parte O ’Brien, 127 Mo. 447; Cloon v. Beatie, 46 Mo. 391; Rohland v. Railroad, 89; Mo. 180. The averment in the motion of Tucker, filed in the probate court, could not supply the necessary finding in the order. Orchard v. Store Co., 225 Mo. 4701. (4) The order for the payment of the legacy was void, for the reason that it allowed interest from December 21, 1908. The filing of the motion on the 14th of February, 1910, was the only evidence of a demand for the payment of the legacy. If the execntor was chargeable with interest, it would be due the estate and not the legatee. The date from which interest was allowed was just one year from the date of letters, and no executor can in any event be compelled to pay a legacy before the expiration of two years. Sec. 245, R. S. 1909. (5) The only power which the probate court had was to order the payment of the legacy when the conditions existed which gave ,it the power to act. Tt had no power to give judgment for interest. Sec. 24-6, R. S. 1909. (6) The motion of James H. Tucker asked for the payment of the legacy of one thousand dollars and interest thereon and the order of the court for the payment of that legacy, and interest thereon from December 28, 1908, stated in the costs named on the execution to be $81 was in excess of the jurisdiction of the probate court. The statute only gave the probate court jurisdiction when the proper conditions existed to order the payment of the legacy. While that order might bear interest from date of refusal to pay, the court had no power to allow interest and it made the whole order void. 1 Am. & Eng. Ency. Law (2 Ed.), p. 1066; Smith v. Knowlton, 11 N. H. 191; Camp v. Woods, 10 Watts (Pa.), 118. The notice served on the executor and the motion filed by Tucker asked for the allowance of interest'. The court, in acting upon this motion and allowing interest, was assuming jurisdiction exceeding that given it by law, and prohibition would lie. State ex rel. v. Aloe, 152 Mo. 483; State ex rel. v. Wood, 155 Mo. 445; State ex inf. v. Talty, 166 Mo. 552; Sec. 246, R. S. 1909: (7) The execution was void for two reasons, among others, to-wit: (a) Section 235, R. S. 1909, provides that if any executor or administrator fail to pay, when demanded, execution may issue. The record shows that a copy of a written demand was delivered to the executor by the sheriff. This written demand did not authorize the sheriff to collect the money, and his receipt would not have protected the executor, or been a legal voucher, on a settlement. Simply handing the executor a copy of a written demand, signed by Tucker’s supposed attorney, is not such a demand as would authorize the issue of an execution, especially on the same day. (b) The same section provides that the execution shall issue on application of the creditor, and section 254 makes it applicable to legatees. The record does not show that such application was made, nor does the execution so state. The same section provides that such execution shall issue against such executor or administrator. The execution was against William T. Petty, simply. (8) The order made on the 17th of July, 1911, on the application of the executor, for distribution of $4,200, excepted James IT. Tucker et al., on account of a suit against them in the Linn Circuit Court. This shows that the legatee,James II. Tucker, was indebted to the estate, at least that he was sued by the executor. If the court will take judicial notice of that suit, which was finally adjudicated by the Kansas City Court of Appeals, and is reported in 166 Mo. App. 98, it may throw some light on the controversy between the executor and Tucker. (9) No suit can be maintained against any executor or administrator for the payment of a legacy or distributive share until all claims are barred by the special statute or limitations. In this case no claims against the estate of James Ward, deceased, were barrred until two years after the publication of notice in April, 1909, that notice not having been published within thirty days from the date of letters. Sec. 191, R. S. 1909; Wiggins v. Lovering, 9 Mo. 262; Wilson v. Gregory, 61 Mo. 421.

      Lavdoch c& Kirkpatrick for respondents.
    The principal defense, and the only defense offered by appellant, is a collateral attack upon a judgment and order of the prohate court and the proceedings thereunder. (1) A collateral attack, as defined by the authorities, is any proceeding not instituted for the express purpose of annulling, correcting .or modifying a judgment or decree. Johnson v. Realty Co., 167 Mo. 341; State v. Jeager, 157 Mo. App. 339. (2) In collateral proceedings, no inquiry can be had as to errors of either fact or law. The judgment is conclusive as to these. Hope v. Blair, 105 Mo. 94. (3) Appellant, in the trial of this cause, offered in evidence Exhibit “D”, being the motion filed in the probate court by James H. Tucker, praying for an order on the executor of the estate of James P. Ward, deceased, to pay legacy bequeathed to the said James H. Tucker. In this proceeding, in view of the judgment rendered thereon, the silence and non-appearance of the appellant thereto, the law conclusively presumes that the court then found that all the debts, demands and special legacies of said deceased, except the legacy to James H. Tucker, had been paid in full, that there yet remained an unexpended'amount in the hands of said executor in the sum of $8750; and that the notice of letters had been published as required by law. In re Tucker, 74 Mo. App. 334; State v. McCord, 124 Mo. App. 73; State v. Searcy, 39 Mo. App. 401. (4) The execution issued May 24, 1910, was against the executor of the last will and testament of James P. Ward, deceased, as directed by statute, yet it was against W. T. Petty, who was such executor, and it was against said W. T. Petty individually, and not in his trust capacity, hence it was properly issued against W. T. Petty, who was such executor. Sec. 235, R. S. 1909. (5) Where the record of the probate court fails to recite a finding as to the facts, but shows that the court exercised jurisdiction, the presumption is that it found the facts necessary to give it jurisdiction. State v. McCord, 124 Mo. App. 73. (6) The probate court was' not required to make any record finding as to the sufficiency of funds, the payment of demands and costs, or the publication of the notice of letters. State v. McCord, 124 Mo. App. 73; State v. Searcy, 39 Mo. App. 401; State v. Dugan, 110 Mo. 145; Livingston v. Allen,. 83 Mo. App. 298. (7) A judgment which is not void as it appears from the record, is not subject to collateral attack. Myers v. McRay, 114 Mo. 382. (8) Errors, if any, either in law or fact, were-merged in the order of the probate court, directing W. T. Petty to pay the legacy bequeathed to James H. Tucker, and are no longer the subject of judicial inquiry. Covington v. Chamblin, 156 Mo. 587.
    I.
   BOND, J.

The plaintiff is the grantee of J. H. Tucker, who acquired a sheriff’s deed to forty acres of land theretofore belonging to defendant W. T. Petty, who was the executor of the will of J. P. Ward and charged with the payment of a legacy to the said Tucker of one thousand dollars.

The will of J. P. Ward was probated December 21, 1907, on which day letters testamentary issued to the executor, who omitted to give notice thereof by publication until 1909, and made his first annual settlement in May, 1909. On February 14, 1910, the probate court, on the application of the legatee, ordered the executor to pay the amount of the legacy, less a collateral inheritance tax of $50, to-wit, $950, with interest from the twenty-first of December, 1908.

Due notice was given to the executor of the application for this order on Tuesday, February 1, 1910-, and a copy of the application was thereafter, to-wit, the 24th of May, 1910, served on him, on which day also an execution was issued against him and levied on forty acres of land, and the same sold and purchased by the legatee, who received a sheriff’s deed for the land and afterwards conveyed it to the plaintiff, who brought the two present actions against defendant Petty and the several parties in possession.

The first count of each suit is to quiet title and the second is in ejectment. The case was submitted to the court without a jury and a judgment rendered for plaintiff, from which defendant Petty has appealed.

II.

No question is made as to the formal sufficiency of the sheriff’s deed to the grantor of plaintiff, nor that the plaintiff acquired whatever title passed to his vendor under that deed, contention of appellant is that the probate court was without any jurisdiction to make the order or render the judgment against the executor for the payment of the legacy bequeathed to Tucker, the grantor of the plaintiff, and hence the ulterior proceedings for its enforcement were simple nullities and carried no title to the land levied upon and sold to satisfy the judgment.

Under the record in this case this position can.not be maintained. As to all matters of administration of estates and in furtherance of statutory powers devolved on them for that purpose, the orders, judgments and proceedings of the probate court are entitled to the same presumptions of regularity and validity, when assailed collaterally, that exists when a similar attack is made upon the judgment of courts of general 'jurisdiction which proceed according to the course of the common law. This principle, despite some vacillation in the earlier cases, is now the accepted law of this State. [Wilson v. Wilson, 255 Mo. l. c. 537, and cases cited.] The judgments and proceedings of a court entitled to these presumptions will be upheld against collateral attack unless it affirmatively appears in some portion of the entire record that the steps necessary to the acquisition of jurisdiction were not taken. The mere silence of the record is not sufficient to overcome the presumption that the given judgment was rendered after jurisdiction had attached.

Taking the face of the record of all the proceedings which culminated in the judgment against the executor, there will be found nothing to prove that the probate court was without jurisdiction to render it. The defendant executor, though duly notified of the ■demand for judgment and the grounds therefor (R. S. 1909, secs. 244; 245, 246, 233, 235), made no appearance and judgment was rendered against him. In the absence of any contrary showing in any part of the record we must presume that this order was only made after a finding by the court of the grounds upon which it was asked. These in substance were, that a legacy of one thousand dollars- was given to the legatee in the will whereof the defendant was executor; that there was money in the hands of the executor amounting to $8751 left after the full payment of all the debts and other legacies as shown by this settlement, and that more than two years had elapsed since the granting of letters. Assuming that evidence of these allegations was adduced it cannot be said in view of the statutes cited above, that the probate court was without jurisdiction to make the order of payment and award execution thereon against defendant.

III.

But appellant further contends that, since he failed to publish, as required by- law, the facts of the issuance of letters of administration to him, therefore the legatee had no . , , , -, -, , , right to demand payment until two years after the belated publication of such notice, which was about a year and a half after the grant of the letters.

This defence is not available under the present record. It was the personal misfeasance of the executor that the statute requiring such publication within thirty days was not complied with. He cannot for that reason set up his own violation of duty as a defense to a cause of action which would have accrued to the legatee within the time his demand for payment was made, if the executor had obeyed the mandatory statute. [R. S. 1909, sec. 82.] If the executor has the1 power to postpone the demand for legacies until such publication of notice of letters and should refuse to make publication, then it necessarily follows that his misconduct would not only prejudice the rights of legatees, but would contravene the statutory purpose to effect a speedy closure of the administration of estates. [Laws 1911, pp. 81-6.]

His action in the present instance was unmoral if not in bad faith, and was no bar to the demand of the legatees for payment which was filed within the term of the statute then in force, permitting the demand for legacies after two years from the date of letters upon executing a bond, which latter requirement was waived by his non-appearance to this suit for the legacy. [R. S. 1909, secs. 244, 245; Pound v. Cassity, 166 Mo. l. c. 428.]

IY.

It is finally urged by appellant that he should not be charged with interest from one year after the grant of letters, but only from the date 0f the demand for the legacy and after refusal to pay. The judgment embracing this item of interest was an appealable one, and if erroneous in that respect the executor could have had redress on appeal. [R. S. 1909, sec. 289.]

The probate court was possessed of jurisdiction to pass on the demand for interest, and even if it erroneously exercised that jurisdiction in allowing too much interest, its judicial action cannot be questioned in the collateral attack made by appellant. Nothing can be further apart than an utter absence of jurisdiction to decide a case, and a mere mistake of law and facts made in the decision of the case of which a court has lawful jurisdiction. [Rivard v. Railroad, 257 Mo. l. c. 167.]

A misapprehension of these diverse functions has created some confusion and lack of clarity in the decisions of some courts. No error however gross, occurring in the exercise of the rightful power to decide a ease, can become the basis of a collateral attack upon the judgment. Such imperfections of judicial action cam only be remedied by a review on appeal, or writ of error, or other mode of direct attack.

Our conclusion is that the judgment of the probate court upon which the sheriff’s deed was founded is impregnable to the collateral attack made in the record before us. It is therefore affirmed.

All concur.


author: RAILEY, C. WOODSON, J.

text:
    THE STATE ex rel. JOHN JACOB DICK et al. v. JOHN WIETHAUPT et al., Judges of County Court.
    Division One,
    December 21, 1915.
    1. DRAMSHOP LICENSE: Granted During Term at Which Petition is FWed. Section 7201, Revised Statutes 1909, declaring that the petition for a dramshop license “shall be filed in the office of the Clerk of the County Court hot less than ten days before the first day of the court to which it is to be presented and remain on file for public inspection and by said clerk laid before the court at the first term thereafter, and all dramshop licenses issued contrary to the provisions of this section shall be void,” does not render invalid a dramshop license granted at the same term at which the petition was filed. The language requiring the clerk to lay the petition before the court at the first term thereafter simply imposed on him a ministerial duty for the benefit of the applicant, and was never intended to invalidate a license granted by the court in due form at the same term; and especially should such license not be held void for the reason it was granted at the same term the petition was filed, where the applicant with his attorney and the remonstrators were in court at the appointed time, and the application was heard on its merits. [Following State v. Evans, 83 Mo. 319; and disapproving State ex rel. v. Wiethaupt, 165 Mo. App. 634.]

      Held, by WOODSON, X, dissenting, that the statute is not directory simply, but mandatory, nor was it intended for the benefit of the applicant, but was intended to give to the inhabitants of the county an opportunity to be heard and to remonstrate; and the clause declaring that “all dramshop licenses issued contrary to the provisions of this section shall be void” did not have reference only to the filing of the petition, but clearly makes void a license granted at the same term the petition is filed.
    2. -: -: Inspection of Petition. But a dramshop license cannot be granted or the petition therefor heard until ten days after the petition has been filed with the County Clerk. That part of the statute (Sec. 7201, R. S. 1909) is mandatory, and was enacted in order that citizens of the county might have ample opportunity for inspection of the petition, and to file a remonstrance, etc.
    Transferred from St. Louis Court of Appeals.
    Reversed and remanded (with directions).

      Eliot, Chaplin, Blayney £ Bedal for relators.
    The judgment or order of the county court granting a dramshop license at the same term of court at which the petitions of the assessed tax-paying citizens and guardians of minors of the block and municipal township are filed is void. Sec. 7201, R. S. 1909; State ex rel. v. Heege, 37 Mo. App. 338; State ex rel. v. Mitchell, 127 Mo. App. 455; State ex rel. v. Higgins, 84 Mo. App. 531.

      E. W. Mills and George B. Logan for respondents.
   RAILEY, C.

On application of relators, a writ of certiorari ivas issued by the St. Louis Court of Appeals in March, 1912, commanding the County Court of St. Louis County, Missouri, to transmit to said Court of Appeals, the record of the proceedings had in the said County Court in the matter of the application of Charles- S. Kinney for a dramshop license. In obedience to said writ, the respondents herein made full return to said Court of Appeals of all such proceedings, including the original papers.

It appears from relator’s written application for said writ of certiorari, that the petition of said Kinney for a dramshop license was filed before the Clerk of the County Court of said county on the 17th day of February, 1912. It further appears therefrom that the regular term of said County Court opened “ February 5, 1932, and was adjourned to February 9, 1912; on which day the court adjourned to February 16-, 1912; on which day the court adjourned to February 19, 1912; on which day the court adjourned to February 23, 1912; on which date the court adjourned to February 26, 1912; on which date the court adjourned to February 29, 1912; on which date the court adjourned to March 1, 1912; on which date the court adjourned to March 4, 1912; on which date the court adjourned to March 8, 1912.”

Said application further alleges, that the Clerk of said County Court laid before the latter on March 4, 1932, the application of Kinney, his petitions, bonds, etc., and that said court on said date, granted said Kinney a license to keep a dramshop as prayed for, etc. The above application for the writ of certiorari was duly verified.

Respondents in their return, which is not contradicted, allege that said petition for a dramshop license was duly filed with the Clerk of said County Court on February 17, 1912; that on February 20, 1912, relators and others filed a remonstrance against the granting of said dramshop license; that said petitioners and remonstrators appeared in person and by attorneys before said County Court, and the issues raised by the petition and remonstrance were then heard by said court; that evidence was presented by both petitioners and remonstrators, and that said evidence and oral arguments by .attorneys were duly heard by said court. The return further shows that said Kinney had met the requirements of the law, and was entitled to his dramshop license, so granted, unless the proceedings of said court were void. Upon a final hearing of said cause in said Court of Appeals, Judge Nortoni wrote an opinion, in which Judge Caulfield concurred, quashing the proceedings of said county court in respect to the matter aforesaid. Judge Reynolds, of said court, dissented in an opinion filed. The majority opinion concludes as follows:

“However, we deem the judgment here given to be in conflict with the views expressed by the Kansas City Court of Appeals in State ex rel. Reider v. Moniteau County Court, 45 Mo. App. 387, and, therefore, certify the case to the Supreme Court for final determination. ’ ’

Under and pursuant to the order of said Court of Appeals aforesaid, all the records and proceedings in said cause which were before the Court of Appeals, together with copies of the opinions aforesaid, were duly transmitted to this court as required by law. The opinions of said judges are printed in full in 165 Mo. App. 634 et seq.

The St. Louis Court of Appeals in this case quashed the judgment of the County Court of St. Louis

On the record thus presented, relators insist that said county court was without jurisdiction, while respondents contend that as all the jurisdictional facts necessary to warrant the court in issuing the license were affirmatively found and entered of record by the court, that its action was regular and that the order granting said license, made by it on the 4th of March aforesaid, was valid. county, Missouri, rendered on March 4, 1912, granting to Charles S. Kinney a dramshop license, on the alleged ground that the petition for a license was filed before the Clerk of said County Court on the 17th of February, 1912, during the regular February Term, 1912, of said County Court, and that the judgment of said court, granting said license, was rendered on the 4th of March, 1912, and during the regular February Term aforesaid. Judge Reynolds dissented, in an opinion filed. The case was certified here, because the conclusion reached by the majority of said court was said to be in conflict with the opinion of the Kansas City Court of Appeals in State ex rel. Reider v. Moniteau County Court, reported in 45 Mo. App. at pages 387 and following, wherein, Judge Ellison, speaking for said court, held that a petition for a dramshop license could be filed and a license granted during the same term of the County Court.

A number of authorities are referred to by counsel in their briefs, although but few of same throw any light on the questions before us. In passing upon the case, it becomes necessary for us to construe section 7201, Revised Statutes 1909, as the conclusion reached will be decisive of the case. That part of section 7201, supra, necessary for us to consider in passing upon the question involved, reads as follows:

“Which said petition [for dramshop license] sháll be filed in the office of the clerk of kke county court not less than ten days before the first day of the court to which it is to be presented and remain on file for public inspection and by the said clerk laid before the court at the first term thereafter, and all dramshop licenses issued contrary to the provisions of this section shall be void.”

In arriving at a correct interpretation of above section, we deem it important to refer to tbe antecedent laws upon this subject as they existed in this State from 1865 up to the enactment of the present law, which occurred in 1901. [Laws 1901, p. 142.] Section 8 of chapter 98, General Statutes 1865', p. 420, relating to this subject, reads as follows:

“Which said petition shall be filed in the office of the clerk of the county court, and by said clerk laid before the court at the first term thereafter . . . and all dramshop licenses issued contrary to the provisions of this section shall be void.”

The language just quoted, will be found in section 5442, Revised Statutes 1879; in section 4 of the Laws of 1883, at pages 87-8, and in section 4576, Revised Statutes 1889.

In 1891 (Laws 1891, pages 129 and 130), the language in regard to -the above subject was slightly changed. Section 8 of said act reads as follows:

“Which said petition shall be presented to the county court or other authority; and all dramshop licenses issued contrary to the provisions of this section shall be void.

The same language just quoted was used in section 2997, Revised Statutes 1899.

In 1901 (Laws 1901, p. 142), said section 2997, Revised Statutes 1899, was changed, so as to read as we find it in section 7201, Revised Statutes 1909, at the present time.

It is generally known that for many years after the conclusion of the Civil War in this country, there were but few counties in our State without licensed dramshops. Later, public sentiment began to change in regard to the sale of liquor in many counties of the State, until ultimately but few are left in which the sale of intoxicating liquor is legally permitted within their borders. From 1865 to 1901, an applicant for license ivas simply required to file Ms petition with the clerk, and %t,pon proper proof made, procure ca license from the county court, not only at the same term, but on the same day the petition was filed. In the well considered and often cited case of State v. Evans, 83 Mo. 319, the defendant, as shown by the record .here, filed his petition for a dramshop license in Oass county, Missouri, on December 21, 1883. The county court on the same day, over the protest of a' remonstrator, granted defendant a dramshop license, and caused its record to recite the necessary jurisdictional facts which, it was held, legally warranted the granting of said license. Section 4 of the Laws of 1883, pages 87-8, was in full force and effect when said license was granted. It reads in respect to the matter under consideration, as follows:

“"Which said petition shall be filed in the office of the clerk of the county court and by said clerk laid before the court at the first term thereafter . . . and all dramshop licenses issued contrary to the provisions of this section shall be void.”

Defendant Evans was indicted for selling intoxicating liquor without a license, on the theory that his license above granted was void. The circuit court at the trial permitted the State to ignore said license and introduce evidence tending to show that defendant was not entitled to it. He was convicted, appealed to this court, and the judgment below was reversed and defendant discharged. The ruling in the Evans ease supra necessarily determined that he had the legal right to file his petition and procure a license on the same day of the term. The conclusion necessarily reached in disposing of said case treated that portion of section 4 supra directing the clerk to- lay the application before the court at the first term thereafter, as merely directory and not mandatory, as held by Judge Thompson in his dicta to the opinion in State ex rel v. Heege, 37 Mo. App. 338. The construction placed upon section 4 of the Act of 1883 supra, in the Evans case, by Judge Martin, Commissioner of this court, meets with our approval.

It is manifest that the direction to the clerk to lay the petition before the court at the first term thereafter, contemplated that a petition might be presented to the clerk and filed in vacation more than ten days before the first day of the term, and yet the clerk, were it not for this section, might arbitrarily pigeonhole the application until the term had passed. Especially might the foregoing happen, where the applicant anticipates no opposition, and leaves his papers properly and timely executed with the clerk, relying on him to call the attention of the court thereto. The language used in reference to the clerk in section 7201 supra simply requires of him a ministerial act for the benefit of the applicant, and his failure to comply with the requirement of the statute was never intended to invalidate a license granted by the court in due form, and especially is this true where the applicant is in court with his attorney, and tries the case upon its merits with the remonstrators before the court at the appointed time, as in this case.

II. Section 7201, Revised Statutes 1909, among other things provides, that:

“Said petition shall be filed in the office of the clerk of the county court not less than ten days before the first day of the court to which it is to be presented and remain on file for public inspection.”

This language first appeared in Laws 1901, page 142. As heretofore suggested, public sentiment had been undergoing a change in respect to the sale of intoxicating liquors before the last named act was passed. Those opposed to the sale of liquor were not satisfied with the then existing condition of affairs, and were manifestly demanding a change in the law. As matters stood up to the passage of the Act of 1901, a dramshop keeper could have his papers prepared; placed in the hands of another, and presented to the court at an opportime time, when those desiring to remonstrate were ignorant of what was transpiring, and in this manner obtain a license, which might otherwise have been refused. The Legislature, therefore, in 1901, passed the above act for the evident purpose of giving those opposed to the issuance of a license an opportunity to be heard before it was granted. 'Instead of permitting the petition to be filed and taken up at once, without notice, as the applicant had the right to do under the law when the Evans license was granted in 1883, the applicant is now required to file his petition in the office of the Clerk of the County Court not less than ten days before the first day of the count to which it is to be presented, and it is required to remain on file for public inspection.

The manifest purpose of the above language, was to give the community interested an opportunity to show cause why the license should be refused. It was required to remain on file in order that those interested might know what they had to meet, and prepare to defend against the issuance of the license. It would be wholly immaterial to the public or remonstrators whether the case was tried during a regular, adjourned or special term, so the petition gave ten days notice and remained on file for the inspection of the public.

The language of the act requiring the petition to be filed as aforesaid and to remain on file in the office of the county clerk for not less than ten days before the day of trial, or the granting of the license, is mandatory, and must be complied with before a valid license can be obtained; but on the other hand, we hold that a petition filed in the office of the clerk of the county court on the 17th of February, 1912, and which remains on file until the 4th of March of the same year, when a trial is then had and the license granted, is a substantial compliance with the requirements of said section 7201, in respect to above matter, even if the petition is filed in the office of the County Clerk and the license granted during the same term of court.

The conclusion therefore reached by the Kansas City Court of Appeals, speaking through Judge Ellison, in the case of State ex rel. Reider v. County Court of Moniteau Comity, 45 Mo. App. 387, properly declared the law in respect to foregoing matters.

Judge Nobtoni in the majority opinion certified to this court and reported in 165 Mo. App. 634, at page 643, after reviewing certain cases, said:

“In view of these authorities and the statutes above quoted, providing for an adjourned term of the County Court, it seems clear that the Legislature intended to confer jurisdiction on the County Court to grant a. dramshop license at the first adjurned term thereafter — that is, after filing the petition — provided the petition remained on file with the clerk for inspection ten days before the first day of such court, that is, the adjourned term.
“But though such be true,' the record before us does not reveal the petition to have been filed ten days before and that it was acted upon at an adjourned term. On the contrary, it appears to have been both filed and acted upon during the regular February term, and not ten days before a term of the court of any character.
“The return before us dicloses the petition was filed on February 17th and that it was presented to the court and acted upon during the February term, on March 4th thereafter. Obviously, more than ten days had elapsed after the petition was filed, but it does not appear the court was in session at an adjourned term.”

We have pointed out in the statement of the case that the court was not in session on February 17,1912, when the petition for a license was filed in the clerk’s office. The verified petition, filed by relators in the St. Louis Court of Appeals on which the writ of certiorari was issued, on page three of same, shows that the County Court adjourned on February 16', 1912, to February 19, 1912; “on which date the court adjourned to February 23, 1912; on which date the court adjourned to February 26, 1912; on which date the court adjourned to February 29, 1912; on which date the court adjourned to March 1, 1912; on which date the court adjourned to March 4, 1912.”

We do not find anything in the return which is contradictory of the foregoing matters. We presume the Court of Appeals must have overlooked the uncontradicted and verified averments of relator’s petition, which shows that the application for a license was filed in the office of the Clerk of the County Court on February 17, 1912, while the court was not in session, and that the court held on March 4, 1912, was an adjourned term. It is fair to assume that, if the attention of the Court of Appeals had been directed to the above statements of relators in their petition, the judgment quashing the proceedings of said County Court might not have been entered in the cause. The conclusion heretofore reached is not in harmony with the views and judgment of the St. Louis Court of Appeals as expressed in the majority opinion of Judge Noktoni and concurred in by Judge Caulfield.

We accordingly reverse and remand the cause, with directions to the St. Louis Court of Appeals to set aside its judgment quashing the judgment of the County Court of St. Louis County, Missouri, rendered on March 4,1912, granting Charles S. Kinney a dram-shop license, and to otherwise dispose of the case in conformity with the views here expressed. r

Brown, G., not sitting.

PER CURIAM. — The foregoing opinion of Railey, C., is hereby adopted as the opinion of the court.

Graves, P. J., and Bond, J., concur.; Blair, J., concurs in paragraphs one and two and in result; Woodson, J., dissents in opinion filed.

WOODSON, J.

(dissenting). — I dissent from the opinion of our learned Commissioner in this case for the reason that in my judgment that clause of section 7201, Revised Statutes 1909, providing that the petition shall be filed in the office of the clerk of the .county court and by him laid before the court at the first term thereafter, is not directory, nor was it intended fpr the benefit of the petitioner for a license to run a dram-shop ; but upon the contrary, in my opinion, the clear design of the Legislature was to give the residents of the community in which it is proposed to operate a saloon, an opportunity to become informed of the facts of the case and present remonstrances against the granting of the license.

If that was not the intention of the Legislature, then why did it declare in the subsequent clause of the same section that all licenses issued in violation of this section should be void? There are but two clauses in the section, and it can hardly be said that the avoiding clause had reference only to the filing of the petition, for the reason that the county court is a court of record, and can only speak through it, and of course it could not act at all unless the petition had been first filed, any more than the circuit court can render a judgment in a cause without a petition filed, stating' the facts constituting the cause of action. Such a judgment of the circuit court, if rendered, would be absolutely null and void, notwithstanding we have no such statute as the one under consideration, declaring such a judgment should be void in such a case. The Constitution would accomplish that effect.

So would it accomplish the same effect on the order of the county court granting the license if the county court, under that statute, should grant the license without the petition having been first filed, although the statute had not contained the annulling clause.

I do not mean to state that the Legislature has not the power to confer upon the judges of the county court the authority to issue such a license upon such a petition without it has first been filed; but what I do mean to say is, that the county court, as a court, could not act under that statute unless the petition for the license had first been filed therein as prescribed for by that statute; and if it should so act, without its having been filed, then the order granting the license would be void, without enforcing the nullifying clause of the statute.

If that is true, which in my opinion it is, then, as previously stated, it can hardly be sai'd that the annulling clause of the statute has, to say the least, reference only to the filing part of the clause thereof; but upon the other hand, to give to the nullifying clause of the statute any substantial force and effect, it must be construed to mean just what the Legislature said, namely, that the petition should be first filed, and second that it should lay over until the next term before the court could act upon the petition, and if both of those i equirements were not complied with, the license should be void.

I am therefore of the opinion that the case of State v. Evans, 83 Mo. 319, and State ex rel. Reider v. Moniteau County Court, 45 Mo. App. 387, should be overruled, and that the writ of certiorari should be made permanent.


author: WOODSON, J.

text:
    THE STATE at the Relation and to the Use of EDMOND KOELN, Collector of City of St. Louis, v. JOHN SCULLIN, Appellant.
    Division One,
    December 21, 1915.
    1. TAXATION: Assessment: District Assessor. The assessment of personal property in the city of St. Louis, wherein there are ten assessment districts, should be made by the District Assessor, and not by the President of the Board of Assessors.
    2. -: —-: Upon Information. The District Assessor called at defendant’s residence and there left a blank on which defendant was required to make return of his personal property for taxation, the blank being detached from a stub in the Assessor’s book. On the stub the District Assessor made a memorandum of $50,000 for stocks and bonds and $10,000 for other personal property, and the book was turned in to the Assessor’s office. Thereafter the District Assessor and the President of the Board of Assessors had a conversation regarding defendant’s ■ assessment, and the old stub having been destroyed, a new stub was made out, upon which defendant’s assessment was fixed at $500,000, the figures being made by the District Assessor and the stub signed by him, the President saying, “I will be responsible.” On the bottom of the stub $1,000,000 was written by some undisclosed person in red ink, an attempt being thereby made to double the assessment. No attempt was made to ascertain if defendant’s personal property exceeded the value of $60,000 made by the District Assessor, the only evidence on the point being that the District Assessor testified that, when he was requested to change the assessment to five hundred thousand dollars and had stated he did not know just exactly what property defendant had, the President said defendant was a very wealthy man, and the President, who had no personal knowledge of what property defendant owned, testified that he had in some way obtainéd a typewritten report from some one, he knew not whom, which showed defendant was worth nothing less than five hundred thousand dollars. Held, that the second assessment was not made upon information furnished by the President, nor was it the semblance of an assessment, but was invalid, being a bald usurpation of authority on the part of the President.
    3. -: -: Doubling. And the doubling of the illegal assessment of $500,000 was likewise a bald usurpation of authority. The doubling of an assessment is not made automatically by the law, but múst be made by the assessor.

      Appeal from St. Louis City Circuit Court. — Hon. George G. Hitchcock, Judge.
    Reversed and remanded (with directions).

      Boyle & Priest, Blodgett & Rector and Douglas W. Robert for appellant.
    (1) The power to make an-assessment is vested only in the district assessor. The President of the Board of Assessors has the power neither to make nor raise nor double an assessment. R. S. 1909, secs. 11352, 11353, 11518; City Charter, art. 5', secs. 16, 18; State ex rel. v. Alt, 224 Mo.. 493; State ex. rel. v. Dillon, 87 Mo. 487; Western Ranches v. Custer Co., 72 Pac. 659; Land Co. v. Custer Co., 72 Pac. 662; Rich Hill Co. v, Neptune, 19 Mo. App. 442. (2) A p-rima-facie case made does not place upon the defendant the duty of overcoming it by a preponderance of the evidence. Sec. 11487, R. S. 1909; Berger v. Commission Co., 136 Mo. App. 42; Thayer’s Cas. Ev., p. 44. (3) Instruction 3, by fixing the amount of the damages, assumes that the purported assessment of $500,000 was doubled as required by law, and the evidence is that the district assessor did not double that assessment. Crow v. Railroad, 212 Mo. 589. (4) No notice having been served, the assessments were void. State v. Cummings, 151 Mo. 49; Mining Co. v. Neptune, 19 Mo. App. 438. (5) Instruction A asked by the defendant and refused should have been given. It submits to the jury the question whether Cook did in fact make and file the assessment for $60,000. (a) The assessment for $60,000 made by the district assessor could not be raised without notice to Scullin. (b) This assessment being final, the power was exhausted for that period of time. State ex rel. v. Spencer, 114 Mr. 574; State ex rel. v. Yan Every, 75 Mo. 530; Mining Co. v. Neptune, 19 Mo. App. 438; Relfe v. Ins. Co., 11 Mo. App.'379; State v. April Pool M. Co., 26 Nev. 87; Oliver v. Carsner, 39 Tex. 396.

      Edw. W. Foristel and Frank H. Haskins for respondent.
    (1) It devolved upon defendant to show that the assessment was irregular and he must show this by a preponderance of evidence. State ex rel. v. Vogelsang, 183 Mo. 17; State ex rel. v. Fullerton, 143 Mo. 682; State ex rel. v. Mastin, 103 Mo. 508; State ex rel. v. Philips, 137 Mo. 259; Ketchum v. Railroad, Fed. Cases No. 7738. (2) The memorandum of $60,000 made by Cook at the time of leaving the notice was not an assessment. State ex rel. v. Cook, 82 Mo. 185; State ex rel. v. Carr, 178 Mo. 238; Bank v. Jordan, 16 Ore. 113; State ex rel. v. Cummings, 151 Mo. 49; R. S. 1909, sec. 11352. (3) Even if it did constitute an assessment it could be corrected at any time before final entry upon the tax books and offer to the public for inspection. People v. Supervisors, 15 Barb. 607. (4) The assessment was made and doubled by the district assessor.
   WOODSON, J.

The respondent instituted this suit in the circuit court of the city of St. Louis against the appellant to recover delinquent personal taxes for the year 1910.

The trial resulted in a judgment in favor of the former and against the latter for the sum of $32,154.48 taxes and $1607.72, for costs and attorneys’ fees. In due time and proper form the appellant appealed the cause to this court.

"Under the view we take of the case it will be necessary to decide but one of the numerous propositions presented by this record for determination, and we will therefore state such of the facts of the case as will fully develop that, proposition.

The main facts of the case about which there is little or no dispute are substantially set forth by the counsel for the respective parties in their statements of the case; which we will largely adopt. Such additional facts as may be necessary for a proper disposition of the case will be added by the court.

Said statement of counsel is substantially as follows :

This is an action by the State of Missouri, at the relation and to the use of Edmond Koeln, Collector of the city of St. 'Louis, against John Scullin, to collect delinquent personal taxes due for the year 1910. The case was tried before a jury and judgment rendered in favor of plaintiff and against defendant in the sum of $32,154.48, tog-ether with costs, which costs included attorney’s fee of $1607.72.

Plaintiff introduced in evidence the certified copy of the tax bill filed with the petition and also the contract between the City Collector and his attorney, the said contract showing that the attorney was entitled to five per cent of the amount of the judgment as compensation for his services.

Plaintiff introduced no further evidence. Defendant’s evidence showed that in July or August, 1909, Michael Cook, who was District Assessor for the First District of the city of St. Louis, Missouri, being the district in which defendant then resided, called at defendant’s residence and there left a blank on which defendant -was required to make return of his property for taxation. That blank was attached to a stub in the District Assessor’s book. On that stub Cook made a memorandum of $50,000 for bonds and stocks and $10,000 for other personal property. This stub was turned in to the Assessor’s office. Defendant made no return for taxation for the year 1910, and had not made a return for eighteen years.

About October, 1909, Christian Brinkop, who was President of the Board of. Assessors, and his son Walter Brinkop, had a conversation with Cook regarding defendant’s assessment. According to the deposition of Cook, a new stub was made out in which defendant’s assessment was fixed at $500,000 and this was substituted for the old stub and the old stub was destroyed, but bx whom is not made clear; by the evidence Brinkop had it the last time it was seen. The figures on the new stub were placed there by Cook in his own handwriting. According to Cook’s testimony he fixed the assessment at five hundred thousand dollars at the request of'Walter Brinkop, Cook testifying “Walter told me to. make out a stub for five hundred thousand dollars,” and “Mr. Brinkop said, ‘You sign that, Mr. Cook; I will be responsible.’ ”

I will here state the facts a little more in detail.

The evidence shows that Michael Cook was the District Assessor of the First District of the city of St. Louis, Missouri, in the year 1909. In July of that year he called at the home of the defendant, 5218 South Broadway in the First District, wrote Mr. Seullin’s name and address on the blank furnished by the city and left it there. On the stub of this blank he endorsed $50,000 for bonds and stocks and $10,000 for horses, vehicles of all kinds, automobiles, silverware and household goods in general, a total of $60,000. This stub, which was No. 2799, he turned in to the office of the President of the Board of Assessors in October of 1909.

In December, 1909, Christian Brinkop, President of the Board of Assessors, and Walter Brinkop, son and chief deputy of Christian Brinkop, called Cook into the private office, and Walter told Cook in Christian’s presence they wanted a new stub made out, and to make one out for $500,000. Christian Brinkop then said, “You sign that, Mr. Cook, I will be responsible.” Thereupon Cook at their suggestion wrote $500,000 on the new stub in lead pencil. This new stub has the number 68788 on the top, and that was scratched out and No. 2799 written in place of it. The figures $500,000 were written by Cook in pencil and at the bottom of the new stub the figures $1,000,000, were written in red ink by someone else. The old stub was then destroyed. Cook did not double the assessment to $1,000,000, and only made the assessment of $500,000 as requested, and this was done at the suggestion of Walter Brinkop in Christian Brinkop’s presence. Christian Brinkop testified that “the office” doubled the assessment.

Joseph PI. Weber, a clerk in the office of the Assessment of Revenue for the city of St. Louis, answered a subpoena du-ces tecum, and brought with him all of the affidavits made by the district assessors for the collection of 1910. There are ten districts in the city of St. Louis, numbered from 1 to 10. Weber testified he could find only the affidavits of assessors for districts 2 to 10 in the office. Pie made a thorough search for the affidavit of the assessor for the First District, but was unable to find that, and that was.the only one of the ten affidavits which was missing. Weber also had made a search for the original stub on which the $60,000 assessment was made and that could not be found in the office of the Board of Assessors.

Mr. Cook’s account of the substitution of the $500,000 stub for the $60,000 stub is as follows:

“Q. After you turned in that stub, what, if anything, occurred with reference to filling out another stub? A. Well, it was just this way: Mr. Brinkop had a private office and the other we called, the general office. I was in the general office and the son, Walter Brinkop', was with his father.
(Interruption by objection.)
“Q. Who was Walter Brinkop? A. A son of Christian Brinkop, President of the Board of Assessors.
“Q. What position did he hold in the office? A. One of the chief clerks. There’s two chief clerks. They got a hundred and fifty each. He was one of them.
- “Q. He was the chief clerk of the President of the Board of Assessors? A. Well, he was his private clerk in a way, gave orders.
“The Commissioner: Gave orders from whom,
Mr. Cook? A. Mr. Brinkop.
“Q. And to whom? A. To the assessors, clerks and everybody.
(Interruption by objection.)
“Q. Now, will you please relate, Mr. Cook, what occurred on this particular occasion that you started to refer to? A. Well, he said his father wanted to see me in his private office.
“Q. Did you go into the private office? A. Yes, sir.
“Q. Of Mr. Christian Brinkop? Yes, sir.
“Q. About what date was this, Mr. Cook? A. I couldn’t say, sir. That was in the fall of the year, at the same time this suit was being brought — before this suit was brought.
“Q. Well, was it before the last day of December of 1909? A. Yes, sir.
“Q. Some time in the month of December, 1909, was it? A. I wouldn’t like to swear to that, sir.
“Q. Now, you went into the office of Christian Brinkop. What occurred in that office at that time? A. Walter told me they wanted a new stub made out.
“Q. Did you have a conversation with Christian Brinkop at that time at that place? A. Yes, sir.
“Q. What was the conversation?
(Interruption by objection.)
“Q. Now, go ahead, Mr. Cook, and state what took place there? A. You mean, what was said to me?
“The Commissioner: What was said to you by Christian Brinkop in regard to this assessment? ' A. Well, the son did most of the talking.
“Q. Did Walter Brinkop speak to you regarding this assessment against Mr. Scullin in Christian Brinkop’s presence? A. Yes, sir.
“Q. Now, Mr. Cook, will you please state what occurred, the conversation between Walter Brinkop, yourself and Christian Brinkop at that time and at that place regarding the assessment of Mr.-John ScuL lin for 1910? A. Well, Walter told me to make out a stub for $500,000.
“Q. Then what occurred, Mr. Cook? A. I did that. Mr. Brinkop said, ‘You sign that, Mr. Cook. I will be responsible.’
“Q. Now what did you write on that stub, Mr. Cook? A.. ‘$500,000.’
“Q. Do you recall whether that was in lead pencil or ink? A. Lead pencil.
“Q. Did you put a bracket on that stub ? A. No, sir. . . .
“Q. When you went into Mr. Christian Brinkop’s private office did you see your original stub? A. No, sir, I saw that before.
“Q. Well, before you went in there did you see your original stub? A. Yes, sir.
“Q. Who had it, Mr. Cook? A. One of the clerks.
“Q. Will you please state his name? A. Mr. Boediker.
“Q. You saw your original stub? A. Yes, sir.
“Q. Was it in the same condition as when you returned it to the office? A. Yes, sir; any more than ‘90’ was written over the ‘50.’
“Q. $50,000? A. Yes, sir.
“Q. There had been no other change on that stub? A. No.
“Q. Mr. Cook, did you make any other assessment for taxation for the year 1910 against Mr. John Scullin than the stub you returned, $50,000 and $10,000? A. Only what I was requested to make, the $500,000 that I was requested to make.
“Q. Who told you, Mr. Cook, to write the $500,-000 on the stub? A. Walter Brinkop.
“Q. Was Mr. Christian Brinkop present when that was said? A. Yes, sir.
“Q. What did he say? A. He just told me to sign it.
: “Q. Who? A. Christian Brinkop. He says,
‘You sign it, I will be responsible.’ Said I, ‘All right.’ ”
Mr. Christian Brinkop gives this account of the transaction:
“Q. Do you know whether Mr. Cook as assessor of that district had made a return prior to December of 1909, reporting the value of Mr. Scullin’s personal property? A. Yes, sir.
“Q. Where had that assessment been filed? A. In the assessor’s office.
‘‘Q. In the assessor’s office? A. Yes, sir.
“Q. Was your attention called to that after it had been filed? A. To the best of my recollection it was.
“Q. Who called it to your attention? A. I guess myself, personally. I investigated it.
“Q. How did you happen to examine the return for Mr. Scullin’s assessment that had been filed by Mr. Cook? A. I examined a great many of them and among them .was Mr. Scullin’s.
“Q. Have you any distinct recollection as to having examined Mr. Scullin’s return? A. Not particularly. Not anything more than examining a great many others.
“Q. You do remember particularly that you examined the return made by Mr. Cook — . A. Yes, sir.
“Q. And on file in your office? A. Yes, sir.
11Q. And do you know what that return was, the amount returned? A. Well, the return that he made was $60,000.
“Q. It was $60,000? A. Yes, sir.'
“Q. And your attention was called to that return? A. Yes, sir.
“Q. Who called your attention to the return? A. I say, in looking over so many of them it came to my attention. . . .
“Q. Now, when you found this return made by Mr. Cook assessing Mr. Scullin’s property at $60,000, what did you do in respect of it, if anything? A. Well, I just made a memorandum and took it up with Mr. Cook and told him that I thought that was a very small assessment for such a wealthy man like Mr. Scullin who has never made any returns.
“Q. You made a memorandum? A. Yes, sir.
“Q. What sort of a memorandum? A. Just’a little memorandum for myself, so that I could speak to Mr. Cook about it.
“Q. Was that a written memorandum? A. That was my own private memorandum. ■
“Q. I asked was it a written memorandum? A. It was certainly written with lead pencil, yes, sir.
“Q. What has become of that memorandum? A. That went in the waste basket after I talked to Mr. Cook, of course. You might know that. . . .
“Q. You made a memorandum of this particular case? A. Yes, sir.
“Q. Then after you saw Mr. Cook you destroyed that memorandum? A. After I talked it over with Mr. Cook, it wasn’t necessary for me to put it in a file any more.
“Q. What became of the original return of Mr. Cook? A. That I don’t know anything about.
<£Q. Was that thrown into the waste basket also? A. I don’t know, sir. • I don’t know anything about that. .
“Q. Where was it when you last saw it? A. .In the Assessor’s office.
££Q. In whose hands? A. In my hands.'
££Q. The last time, then, you saw the original return made by Mr. Cook of- the assessment of Mr. Scullin’s property, it was in your hands? A. Yes, sir, the original figure.
££Q. And in your private office? A. In the private office, yes, sir.
££Q. What did you do with it? A. I put it back again.
££Q. Put it back again where? A. Back in the file, yes, sir.
££Q. Where did you put it back? A. Back into the file.
££Q. In which file? A. In one of the cases where we had all the different stubs of assessments.
£ £ Q. Who had charge of the files ? A. I had, and of course all the clerk’s in the Assessor’s office.
££Q. Well, did you make any substitute for that? A. Mr. Cook made a substitute.
££Q. Did you direct him to make it? A. I advised him to make it.
££Q.- What did you say to him about it? A. I said, £Mr. Cook, Mr. Scullin is a very wealthy man and I am surprised you have him down for only $60,000.’ He said, '£Yes, Mr. Binkop, I know, but I don’t know just exactly what the man has. I have been serving him, with notice for I guess eighteen years and he never has paid any attention to it. I know he is a rich man.’ I said, ‘Well, I have something to show he is worth nothing less than five hundred thousand dollars in personal property.’ He said, ‘Yes, I guess that is rig'ht, Mr. Brinkop, but I have no way of telling it.’ I said, ‘I would advise you, Mr. Cook,.to make that $500,000.’
“Q. You told him you had something there to show he was worth $500,000? A. I did.
“Q. What did you have there to show he was worth $500,000? A. I had a report.
“Q. What report? A. A report of the man what he was possessed of. Like you get a report when you sell a man goods.
“Q. Now, what report did you have? A. Well, what report? I got a report of the man.
“Q. Was it in writing? A. It was in printing.
“Q. In printing? A. In typewriting, I really mean.
“Q. In typewriting? A. Yes, sir.
“Q. Who made the report? A. That I forget now, I can’t remember.
“Q. What became of thé report? A. That was destroyed afterwards.
“Q. Who destroyed that? A. I don’t know. I couldn’t remember if I destroyed it or whom.
“Q. Was it in your possession? A. It was.
“Q. Why do you think it was destroyed? A. That is the best of my recollection. . . .
“Q. Who made the report to you? A. I don’t remember that.
“Q. Who? A. I can’t remember that.
“Q. Was it somebody you employed? A. No, sir.
“Q. Was it signed by anybody? A. - It was signed by the people that I got it from at the' time.
“Q. What people did you get it from? A. I don’t remember that.
“Q. Well, was it .several people or one person that you got it from? A. Oh, there was a whole lot of them.
“Q. Was it a stranger who made this report to you or one with whom you were acquainted? A. Yes, he was a stranger to me as far as myself is concerned. ’ ’

Defendant at the close of the plaintiff’s case and the whole case, offered instructions in the nature of a demurrer to the evidence, which the court refused.

The court, at the instance of the respondent, gave to the jury seven instructions, and refused five asked by appellant.

No fair-minded, disinterested person can read this record and come to any other conclusion save that Christian Brinkop and his son Walter, in fact, made the assessment in controversy,, that the assessor, Mr. Cook, whose duty it was to make it, had nothing whatever to do with it except to write down just what Brinkop and his son ordered him to do.

It is also disclosed by this record that Mr. Cook had no knowledge or information of his own as to what property the appellant owned over and above that at which he assessed it, $60,000, or its value, and so stated those facts to Brinkop. Thereupon the latter ordered Mr. Cook to make out a new assessment for the sum of $500,000, and that he Brinkop, would be responsible for it, which, upon that assurance, Mr. Cook made, and thereupon the old assessment or stub was destroyed, but by whom, is not made perfectly clear by the evidence.

There is no merit whatever in the suggestion that Brinkop had investigated what property the appellant owned, that he reported that fact to Mr. Cook and that the latter made the second or $500,000 assessment upon the information furnished by Brinkop.

Both Brinkop and Cook testify that the latter stated to the former the reason why he fixed the first assessment at $60,000, was because he had no knowledge or information of any other property owned by appellant; and thereupon Brinkop ordered Cook to make the second assessment at $500,000, and stated that some other person whom he could not name reported to him that appellant owned $500,000 worth of property, and for that reason ordered Mr. Cook to make the $500,000 assessment.

Of course, according to this testimony, Brinkop had no personal knowledge of what property Scullin owned. He was acting purely upon hearsay statements, not under oath, and could not name the party who had so informed him of appellant’s property; nor does the .record anywhere disclose the fact that Brinkop’s informant had any such knowledge.

Such conduct and acts on the part of Brinkop and Cook do not arise to even the semblance of an assessment, which will appear from the authorities to be presently cited.

It was simply a bold, bald piece of usurpation of authority on the part of the former, without law or morality to support it.

The assessment should have been made by Cook and not by Brinkop and his son. This is made clear by the following authorities: Sections 11352, 11353 and 11518, Revised Statutes 1909; City Charter of St. Louis, art. 5; secs. 16 and 18; State ex rel. v. Alt, 224 Mo. 493; State ex rel. v. Dillon, 87 Mo. 487; Western Ranches v. Custer County, 28 Mont. 278; Matador Land & Cattle Co. v. Custer County, 28 Mont. 286; Rich Hill Mining Co. v. Neptune, 19 Mo. App. l. c. 442.

Moreover, the doubling of the illegal $500,000 assessment was also a bold piece of usurpation of authority by Brinkop; and was equally as illegal as was the assessment itself.

The doubling of an assessment is not made automatically by the law, as was done iu this case “in the office,” but must be made by the assessor. [Sec. 11353, R. S. 1909.]

And this statute further provides that if the assessor shall neglect or refuse to perform that duty, then he “shall be liable iu each case to a penalty of fifty dollars,” etc.

Under this view of the case _we are of the opinion that the second or the $500,000 assessment is an absolute nullity; and that the judgment should be reversed and the cause remanded to the circuit court with directions to dismiss the suit; and it is so ordered. This, however, is without prejudice as to the original assessment made.

All concur.