author: HIGBEE, P. J.

text:
    MATILDA S. SMITH, Appellant, v. THOMAS R. SMITH, et al.
    Division Two,
    July 19, 1921.
    1. CANCELLATION OF DEED: Undue Influence: Parent and Son: Burden of Proof. The simple relation of parent and child is not sufficient to justify the cancellation of a deed or lease from the parent to the son, but in order to authorize such cancellation there must be a further showing of the exercise of undue influence by the son, or the existence of fraud practiced upon the parent by him, or that some advantage was taken by the son of the parent’s weak condition of mind; and where there is no evidence tending to show any relation of trust and confidence between the parent and son except that which exists between parent and child, the burden of showing fair dealing and the absence of undue influence does not shift to the son in her suit to set aside* a conveyance of her farm to him.
    2. -: -: -: Utmost Fairness. Where the evidence shows that the utmost fairness characterized the dealings of a son with his mother and manifests a desire on his part to secure to her an adequate income from her farm, which she, because of old age and physical infirmities, was unable to operate, and to preserve the estate intact for himself and her other children, and further shows that, in pursuance to said desire, he took upon himself a burden that he alone of all her children was able to carry, which required the advancement of considerable sums of money and his personal attention for ten years or more before he could be reimbursed, there is no room for the contention that, in her suit to set aside the conveyance, the burden of showing fair dealing and the absence of undue influence shifted to him.
    3. CONVEYANCE: Incapacity of Grantor: Expert Testimony: Exploded by Her Own. In a suit to cancel a deed and lease’ made by a mother to her son, testimony of the mother at the'trial, eight months after the instruments were executed, in which she clearly relates the conversations and agreement between herself and the son at and prior to their execution, is of itself sufficient to explode the testimony of medical experts to the effect that at the time the instruments were executed she was of unsound mind and incapable of entering into such contractual relations.
    4. -: To Several Children: Acceptance by All. Where the mother did not write in her deed to her children, intended as an advancement to each of them, that it should be void unless all of them accepted it, the law will not imply a condition of defeasance in case one or more of them fail to accept it; but as to the grantee to whom it was delivered and as to those who do accept it, it will be a valid conveyance, and as to those only who refuse to accept it will it be held void.
    5. -: -: Lease: Ratification. Where a voluntary deed to a farm by a mother to her children was made subject to a cotemporaneous lease to one of them for ten years at an annual rental, her demand and acceptance of a part of the rental is an affirmance of the contract with said grantee and lessee, subject to the correction of mutual mistakes, and cannot be avoided as to him because four of the six children refused to accept the deed.
    6. DEED: Lease: Mutual Mistakes: Reformation. Where the agreement between a mother and her son was that her farm should be leased to the son for ten years at a named annual rental, and in addition he was to pay the taxes and make needed improvements on the dilapidated farm and pay the interest on two existing mortgages and advance her whatever sum above the rental was necessary for her comfort, and he was to be reimbursed for all said outlay above the annual rental by an extension of said lease at the same rental for such a time as would reimburse him, and that a deed should be made to all her children as equal grantees, subject .to said lease, and said agreements were not incorporated in either of said cotemporaneous instruments, and the son, in his answer to the mother’s suit to have the deed and lease cancelled, asserts that such were the agreements and prays that the instruments be reformed to include them, the court should reform the deed so to make it subject to the lease and the mother’s life estate, and reform the lease so as to extend it for such period as will meet the other terms of the agreement.
    Appeal from Lincoln Circuit Court — Hoi?-. Edgar B. Woolf oik, Judge.
    Reversed and remanded, (with directions).

      Button & Huston for appellant.
    (1) (a) The execution of the lease and deed was the result of undue influence. There existed between plaintiff and defendant, at the time of the execution of the instruments sought to be set aside, a confidential or fiduciary relation, which relation alone' raised a presumption of undue influence and devolved upon defendant the • burden of showing that the plaintiff was of' sound mind, capable of making the deed and lease, and that the instruments in question were made by plaintiff as her free act, uninfluenced by any improper conduct upon the part of defendant, and of showing by clear and convincing proof that he acted with perfect good faith and did not abuse or betray the confidence reposed in him, and of showing that all was fair, open, voluntary and well understood. McClure v. Lewis, 72 Mo. 320; Youtsey v. Hollingsworth, 178 S. W. (Mo.) 107; McKissock v. Groom, ■148 Mo. 467; Jones v. Belshe, 238 Mo. 539; Jones v. Thomas, 218 Mo. 536; Cornet v. Cornet, 248 Mo. 234; Wing’ v. Havelik, 253 Mo. 508; Martin v. Upson, 189 Mo. App. 636; Naylor v. McRuer, 248 Mo. 459; Roberts v. Bartlett, 190 Mo. 700; Grundmann v. Wilde, 255 Mo: 115; Wendling v. Bowden, 252 Mo. 687; Stahl y. Stahl, 214 111. 131; Horner v. Bell, 102 Md. 535; Stepp v. Frampton, 179 Pa. 284. (b) The relation of parent and child is a confidential one, and should be taken into consideration upon the issue of undue influence, and when to this relation is added evidence of actual confidence and trust, as in this case, the burden of showing fair dealing and the absence of undue influence is shifted to the defendant. Youtsey v. Hollingsworth, 178 S. W. (Mo.) 107; Jones v. Belshe, 238 Mo. 539; McClure v. Lewis, 72 Mo. 314; Ennis v. Burnham, 159 Mo. 494; Jones v. Thomas, 218 Mo. 536; Wendling v. Bowden, 252 Mo. 687; Stahl v. Stahl, 214 111. 131; Horner v. Bell, 103 Md. 535; Stepp v. Frampton, 179 Pa. 284; Ryan v. Ryan, 174 Mo. 286. (c) The rule that the existence of a confidential relation between the contracting parties raises the presumption of undue influence, is not confined to technical fiduciary relations, such as parent and child, guardian and ward, trustee and cestui que trust, principal and agent, but its application extends to all those informal relations in which confidence is reposed or which exist whenever one person trusts in or relies upon another. Stahl v. Stahl, 214 111. 131; Horner v. Bell, 102 Md. 135; Stepp v. Frampton, 179 Pa. 284; Ryan v. Ryan, 174 Mo. 286; Jones v. Thomas, 218 'Mo. 536; Jones v. Belshe, 238 Mo. 539; Cornet v. Cornet, 248 Mo. 234. (d) Whether the evidence of mental incapacity considered by itself and disconnected with the question of úhdue influence is sufficient to justify the cancellation of the instruments executed by the plaintiff on that ground or otherwise,' yet such incapacity is so interwoven with the question of undue influence as to make it a factor in the case until the controversy as to undue influence is settled. Grundmann v. Wilde, 255 Mo. 115; McKissock v. Groom, 148 Mo. 567; Jones v. Belshe, 238 Mo. 539. (e) Defendant’s answer admits that plaintiff at the time of the execution of the instruments sought to be set aside, was "in an aged and feeble condition of mind and body, and without business experience and incapable of resisting the influence of those who might have sinister and selfish aims against her property, and who might seek to defraud her of the same.” This, without more, casts the burden, upon defendant to show the absence of undue influence and fraud in the procurement of the execution of these instruments. Holser v. Beard, 54 Ohio St." 398. (2) If a grantor has not capacity equal to a full and clear understanding and comprehension of the nature and consequences of the act, the conveyance is invalid. 22 Cyc. 1170; McKissock v. Groom, 148 Mo. 469; Chadwell v. Beed, 198 Mo. 379; Ellis-v. McNally, 177 S. W.'(Mo.) 658; Turner v. Anderson, 236-Mo. 544-545; Naylor v. McBuer,.248 Mo. 562. (3) In the case of mutual mistake in the making of a contract,, equity will reform the instrument. In case of unilateral mistake, equity will cancel or set aside the contract. This is the universal rule where a relation of trust 'or confidence exists between the parties, or the parties were not dealing at arm<’s length, or where any fraud was practiced in the procurement of the execution of the contract. Albany City, etc. v. Burdick, 87 N. Y. 46; Story v. Cammel, 94 N. W. 982; Ward v. Speltz, 39 Neb. 809; Hamilton v. Carpenter, 64 N. E. (Lid.) 939; Loyd v. Phillips, 101 N. W. (Wis.) 1092; Cherry v. Brezzolan, 89 Ark. 315; Moffett & Co. v. Bochester, 178 U. S. 385; Keene v. Demelman, 172 Mass. 222-3; Nelson v. Carlson, 54 Minn. 90; Crowe v. Lewin, 95 N. Y. 423; Deman v. Providence & C. Bailroad, 5 B. I. 130; Brown v. Lampluar, 35 Vt. 252. (4) Pour of the grantees in the deed declined acceptance of the deed, and the deed not having been áccepted by all of the grantees becomes void as to all, and this situation vitiates the entire transaction. McNear v. Williams, 166 Mo, 358. (a) Delivery and acceptance of a deed are essential requisites to cause it to operate as a complete and effectual conveyance. Hall v. Hall, 107 Mo. App. 101; Wells v. Hobson, 91 Mo. App. 379; Pullis v. Somerville, 218 Mo. 624; Seibel v. Higham, 216 Mo. 121; McNear v. Williams, 166 Mo. 358; Rogers v. Carey, 47 Mo. 232. (b) There can be no delivery -without the consent of the grantee. Turner v. Carpenter, 83 Mo. 333; Schooler v. Schooler, 258 Mo. 83. (c) There can be no delivery of a deed without acceptance of the grantee. Miller v. McCaleb, 208 Mo. 562; McNear v. Williams, 166 Mo. 358; Cravens v. Rassiter, 116 Mo. 338; Schooler v. Schooler, 258 Mo. 83. (d) No title passes until the deed is accepted by the grantee. Cravens v. Rassiter, 116 Mo. 338; Rogers v. Carey, 47 Mo. 232, 236. (e) The filing of a deed made to an adult grantee for record and the recording of the same unauthorized by the grantee, does not constitute a 'delivery or acceptance. Miller v. McCaleb, 208 Mo. 562; Cravens v. Rassiter, 116 Mo. 338; Allen v. Degroodt, 105 Mo. 442; Rogers v. Carey, 47 Mo. 232. (f) The filing for record of a deed raises a rebuttable presumption of acceptance by the grantee. McLean v. Groodwillie, 204 Mo. 306; Miller v. McCaleb, 208 Mo. 562; Peters v. Berkemeier, 184 Mo. 393; Whittaker v. Whit-taker, 175 Mo. 1; Chambers v. Chambers, 227 Mo. 262.

      Creech & Penn for respondents.
    (1) ' When Mrs. Smith caused, or permitted the deed to her lands to be recorded, conveying her property to her children, there was a presumption of delivery, which can only be overcome by 'evidence adduced by plaintiff, which removes all reasonable doubt that the grantor thereby intended to deliver the deed. Hall v. Hall, 107 Mo. 108; Burkey v. Burkey, 175 S. W. 624; Chambers v. Chambers, 227 Mo. 284; Tobin v. Bass, 85 Mo. 658; Standiford v. Standiford, 97 Mo. 239; Sneathen v. Sneathen, 104 Mo. 210; Devey v. Fielder, 216 Mo. 192. Acceptance of a deed may be proved by direct or circumstantial evidence, and the presumption of acceptance is stronger where the deed is voluntary, than where there is a sale of the land. Burkey v. Burkey, 175 S. W. 624; Schooler v. Schooler, 258 Mo. 921, 167 S. W. 444; Chambers v. Chambers, 227 Mo. 284. (2) The assumption that Tom Smith bore a confidential or fiduciary relation to his mother, from which undue influence might be presumed, merely because he was her son, and the natural esteem and affection which should characterize the relation existing between mother and son, unaffected by any other relationship, cannot be maintained by reason or on authority. McKinney v. -Hensley, 74 Mo. 332; Hamilton v. Armstrong, 120 Mo. 615; Maddox v. Maddox, 114 Mo.' 46; Doherty v. Noble, 138 Mo. 32; Bousall v. Eandall, 192 Mo. 531; Huffmann v. Huffmann, 117 S. W. 3, 217 Mo. 182; Stanfield v. Hennegar, 259 Mo. 51; Beanland v. Bradley, 2 Smale & Gr. 339; Mackall v. Mackall, 135 H. S. 167; Jones v. Thomas, 218 Mo. 508; McLeod v. McLeod, 145 Ala. 269; Francis v. Wilkinson, 147 111. 370; McCord v. McCord, 136 Iowa, 53; Cooper v. Moore, 55 Mise. 102; Tetér v. Tetel, 59 W. Ya. 449; Wessell v. Bathjohn, 89 N. C. 377; Townson v. Moore, 173 H. S. 17; Prescott v. Johnson, 91 Minn. 273; Eader v. Eader, 108 Minn. 139; Stanfield v. Johnson, 159 Ala. 546; Sears v. Yaughan, 230 111. 572. The deed and lease contemporaneously executed are part and parcel of one transaction and should be read together as one instrument, and when so read makes it clear that a life tenancy was reversed in the lands' to Mrs. Smith. Cook v. Newly, 213 Mo. 471. (3) When there is a mutual mistake in the execution of an instrument or instruments, in that the written instrument does not express the contract which the parties actually entered into, whether the mistake be of law or fact, equity will reform the contract, and this, too, whether the proceeding to reform be by way of a bill to correct a mistake, or by way of an answer as. a defense asking affirmative relief. Corrigan v. Tiernay, 100 Mo. 280; "Williamson v. Brown, 195 Mo. 332. (4) The mental incapacity of Mrs. Smith to comprehend and understand the nature of the transaction entered into by her and her son, Tom, is not alleged in plaintiff’s petition as a ground for setting aside the deed and lease, but is alleged only as an incident to the .susceptibility of Mrs. Smith to undue influence, and the evidence as to her mental incapacity to execute the deed and lease, not being within the pleadings, should be ignored by the court.
   HIGBEE, P. J.

Plaintiff brought this suit September 9, 1916, to cancel a lease which she had executed August 24, 1916, of her farm of 217 acres in Lincoln County, Missouri, to her oldest son, Thomas R. Smith, and. a deed .of the same date conveying said farm to her children, Thomas R., Hugh B., George W., Grover C., Edward B. Smith and Josephine S. Williams, subject to said lease and two deeds of trust, one for $1700 to Zula Thurman, dated July 18, 1913, the other for $921.50 to her daughter, Josephine S. Brady, now Williams dated August 19, 1914.

The plaintiff’s first husband died in 1888. She was the beneficiary in life insurance policies on the life of her husband and another relative in the total sum of $4500. She lived on and managed the farm indifferently for some years after her husband’s death. She later married a man by the name of Luckett, who had a large pack of hounds, built a race track on the farm, exhibited a freak animal at county fairs, squandered nearly all of her insurance money and grossly mistreated her. All of her grown children advised her to divorce him. She • did so in 1903 and paid him $1000 by way of settlement. She had poor health and suffered a paralytic stroke. Her children advised her to remove to St. Louis, where Thomas, Josephine, George and Hugh lived. She did this in 1903, after selling off her livestock, farm machinery and household goods, and leased her farm to a Mr. Hughes at an annual rental of $620, subject to abatement on account of drouths and floods. During the subsequent years to 1915, she did not receive over $400 per year out of the rents. This was inadequate for her support and payment of taxes, and her medical bills. Some of the time, when able, she kept boarders. The leasing of her farm, then estimated to be worth at least $15,000, was the subject of many conferences for two or three years between Mrs. Smith, Thomas, and some of her other children. There was a fairly good house on the farm, but the barn, other out-buildings and fences were falling into decay. Owing to its distance, her age, and the impairment of her health and mental faculties, it was believed she was unequal to the task of looking after her property and protecting her interests. After paying the taxes and interest on the mortgages, there was little left to her out of the rents. At that time there was $1000 arrears of rent due her from Hughes. Thomas insisted that the farm could be rented for $500 per year, but they7 failed to secure a tenant who would pay*that sum. She talked the matter over with him and Hugh, and probably with some of her other children. Finally, Thomas said he would take a lease on it for ten years at $500 per year and pay her that sum each year, and that whatever amount it should be necessary for him to pay for permanent improvements to the extent of $1500, and for taxes and other fixed charges over the said $500 a year, should be a lien in his favor on the land, and should be taken to extend the term of the lease after his mother’s death at $500 per year for such time as should be covered by7 any sum he should so advance during her lifetime or for her benefit or upon said property in excess of said $500 per year. This appeared to be satisfactory *to Mrs. Smith and Hugh, and accordingly she and Thomas, on the evening of August 24, 1916, took the train for. Troy, the county seat of Lincoln County, arriving there after midnight. The following morning they called upon Mr. Charles Martin, who had been her attorney for many years, who had secured her divorce in 1903, and attended to the settlement of her first husband’s estate and other business, matters. They talked the matter over with Mr. Martin, who made memoranda and told them he was busy and for them to go to see the farm and return the next day, which they did. Mr. Martin had written the lease, and his son, Robert, the deed. They were read over, signed and acknowledged by Mrs. Smith. Robert Martin had them recorded and mailed them to Thomas in St. Louis, who showed them to Hugh and to Josephine in her mother’s presence. Josephine, who had been a stenographer in a law office for four years, said: “Why, Mamma, you deeded everything away, you haven’t got a penny, and Tom is the only one that could give it back.” Mrs. Smith was then and had been for some time living with her daughter, Josephine.

The second amended petition charges that plaintiff was* without any means of support except as derived from her land, and was afflicted with physical and mental infirmities due to old age and disease, and was without previous business experience, and wholly incapable of resisting the , influence of those about her and particularly of Thomas R. Smith, who was her confidential business adviser and had an irresistable influence over her, and that by reason thereof she was induced against her will to execute the lease and deed which were set out-in the petition. That she did not understand the terms and conditions of said instruments, and that they failed to reserve to her a life estate in said land and the rents, thereof during her life, but she believed said instruments were so drawn as to reserve to her a life estate in said lands and the rents accruing thereon during her Ufe; that she did not understand that by said lease defendant was permitted to deduct the value of improvements made by Mm from the annual rents, but that she believed that, by the terms of said lease, she should receive $500 annually in cash without deductions for improvements or any other account, and believed said lease provided that defendant should have the privilege of making permanent improvements not to exceed $1500, and in case the annual rental of $500 was insufficient to maintain plaintiff in a suitable manner, then that defendant should advance plaintiff adequate funds for that purpose during her life and in case of such advancements being made to plaintiff or of such improvements being made upon said land by defendant, then that this should operate as an extension of the terms of said lease after plaintiff’s death for a period sufficient to reimburse defendant for such advancements aiid improvements at a rental of $500 per annum, and that defendant should keep all buildings on the premises insured and pay the premiums thereon, and pay all taxes on the premises as further rental in addition to the $500 per annum aforesaid, and believed that the children should assume and pay the debts secured by said deeds of trust aforesaid; that plaintiff did not understand that the taxes and insurance on the premises should be taken as credits on the annual rents received; that she was induced to execute the said instruments by the undue influence of the said Thomas amounting to over-persuasion and coercion, and by false representations, pretenses and deception practiced upon her as aforesaid and relied upon by her, and by reason of the fiduciary relation existing between them and her implicit confidence in her said son, and by reason of plaintiff’s physical and mental infirmities, and by reason that plaintiff did not understand the nature and purport of said instruments; that said lands were reasonably worth at least $15,000, and that by their execution she had stripped herself of every vestige of property and means of support; that said deed was never delivered to any defendant other than Thomas R. Smith, and the same was executed and recorded without the knowledge of, and was’ never accepted by, said other defendants, but was renounced and rejected by them as soon as they learned of its execution. Wherefore, plaintiff prays that said deed and lease be cancelled and for other proper relief.

Hugh B. Smith filed an answer which was a general denial.

Thomas R. Smith answered, admitting that plaintiff was, on August 24, 1916, owner of said farm and that she was in an aged and feeble condition of mind and body, without business experience, and incapable of resisting the influence of those who might have sinister- and selfish aims against her property or who might seek to defraud her of the same; that realizing said fact she had, prior to said date, repeatedly requested him to enter into an agreement with her by which she would be' guaranteed from said property an income of $500 per annum and by which said property would remain intact for her heirs, the defendants in this suit; that $500 is the full rental value of said property and it was agreed that he would rent it at that sum per year and pay her that sum annually, and whatever sums it should be necessary for him to pay for necessary improvements, not to exceed $1500, taxes and other fixed charges, should be a lien in his favor on the land, and should be taken to extend the term of his lease after plaintiff’s death at $500 per year for such time as should be covered by any sums he should so advance to plaintiff during her life or for her benefit or upon said property over the said $500; that said arrangement was entered into by him at his mother’s solicitation solely for the purpose of protecting her and her presumptive heirs, against the dissipation of said property in her lifetime; that the instruments drawn for that purpose are as set out in the petition; that they were drawn by his mother’s counsel; that it was a mutual mistake that the warranty deed should be drawn without reserving a life estate to his mother, and he is willing that the court, by its decree, vest a life estate in said property in his mother,' subject to said lease, and if said lease fails to conform to the intentions of the parties, he consents that the court may reform it to conform to the intentions of the parties. All other allegations were denied. Defendant further says that, on December 7,1916, after this suit was commenced, the plaintiff, with full knowledge of the nature of said lease, accepted from this defendant $170 in part payment of the rent reserved to her in said lease.

The reply was a general denial.

The other defendants entered their appearance, but did not plead to the petition.

The cause was tried to the court in June, 1917, taken under advisement, and on September 28, 1917, the court entered its finding that, in order to make the deed contain the understanding of the parties, the following item should be incorporated therein to-wit: “It is understood and agreed that the grantor reserves to herself in and to the lands herein described a life estate and this deed is made subject to the life estate of the grantor during her natural life. ’ ’

The court also found that there was a mutual mistake of fact made in the execution of the lease, and it was ordered and decreed that the said lease be reformed by incorporating therein the following clause, to-wit:

“It is understood and agreed by the parties to this lease that the value of improvements that may be made by the party of the second part under the provisions of this lease shall not be taken as credits on the annual rents reserved, but such inmprovements shall operate as an extension of the term of this lease for a period sufficient to pay the party of the second part for the same at an annual rental of five hundred dollars.

“And it is further ordered, adjudged and decreed by the court that the plaintiff and defendant, Thomas R. Smith, pay the costs of this suit in the proportion of one-half each, and that execution issue therefor.”

After motion for new trial was overruled, plaintiff appealed.

I. Appellant insists that in view of the relation of parent and child between her and her son Thomas, the burden of showing fair dealing and the absence of undue influence shifted to the defendant.

There was no evidence tending to show any relation of trust and confidence between plaintiff and her son Thomas except that which exists between.parent and child, and such relation is not sufficient to justify the cancellation of a deed or conveyance from a parent without showing the exercise of undue influence or the exisence of fraud or that some advantage was taken by the son of the mother’s weak condition of mind. [McKinney v. Hensley, 74 Mo. 326, 332; Hamilton v. Armstrong, 120 Mo. 597, 615; Doherty v. Noble, 138 Mo. l. c. 32; Bonsal v. Randall, 192 Mo. 525, 531, 532; Huffman v. Huffman, 217 Mo. 182, 192, 117 S. W. l. c. 3; Maekall v. Mackall, 135 U. S. 167]

It is unnecessary and would be unprofitable to set out the voluminous evidence on this or any other issue in the case. It justified the learned trial court in finding that the utmost fairnes's and a desire to secure to Mrs. Smith an adequate income from her farm, which, from her age and' infirmities, she was unable to operate, and to preserve the estate intact for her children, characterized the dealings of her son Thomas. He took upon himself a burden that he alone of all the children was able to carry, which required the advancement of considerable sums of money and his personal attention for probably ten or more years before he could be reimbursed for his outlays.

II. It was attempted to be shown by medical experts that at the time the lease and deed were executed, Mrs. Smith was of unsound mind and incapable of entering into such contractual relations with her son. That issue was not tendered by the petition. It is not averred she was of unsound mind or mentally incapable of transacting her business. At the trial, eight months after the lease and deed were executed, she very clearly related the Conversations and agreement between herself and her son at and prior to their execution in August, 1916. The evidence of her son Thomas differed in a few details from that of his mother in this respect. This circumstance alone explodes the testimony of the medical experts. Aside from this consideration, there was the testimony of disinterested witnesses who had known Mrs. Smith for many years as to her contemporaneous statements of the transaction, which harmonized with Thomas’s evidence at the trial.

III. Appellant contends that because four of the grantees refused to accept the deed it is therefore void; that is, all of the grantees must accept the deed before it becomes operative. McNear v. Williamson, 166 Mo. 358, is cited. This question did not arise in that case. It was there held that delivery of a deed is the consummation of the act, and in order to its accomplishment there must be a meeting of the minds of the parties on the purpose. It is admitted in the petition that the deed was delivered to Thomas. There is no question that Hugh also accepted it. The legal effect of the deed was to convey an undivided one-sixth part of the farm to each of the grantees, if he accepted by them. Mrs. Smith did not write in the deed a condition avoiding it 'unless all the grantee should accept it. It was intended as an advancement to each of her children and the law will not imply a condition of defeasance in case one or more of the grantees should fail to accept the deed. The petition avers that the deed was never delivered to any defendant other than Thomas, but was rejected by the other grantees. The petition does not seek relief against Thomas on the theory of non-delivery to and non-acceptance by the other grantees, but solely because of undue influence and the failure to reserve a life estate for the grantor. The deed and lease were executed contemporaneously, as one transaction, and should be read together. The deed was made subject to the lease. This was explained by Mrs. Smith’s attorney, Mr. Martin, at the time the instruments were drawn. Moreover, after Mrs. Smith had consulted her attorneys about this action she asked Thomas to pay the first installment of rent, $250, due January 1, 1917, saying she wanted to buy some hogs to eat her part of the damaged crop on the farm. He paid her $170, which she paid to her attorneys on their fee in this case. She then knew all the conditions. She cannot play fast-and-loose. By demanding and accepting part of the rent received in the lease she affirmed the contract with her son Thomas, subject, of course, to her right to have' mutual mistakes in the deed and lease corrected. But the court should have canceled the deed as to the defendants George W. Smith, Grover C. Smith, Edward B. Smith and Josephine S. Williams because of their refusal to accept it.

IV. There remains a question about the payment of taxes and interest on the two deeds of trust on the farm which, no doubt inadvertently, is not settled by the decree. Thomas admitted in his answer that he was to pay these and he was not to have credit on the rent therefor. If the $500 annual rentals should be insufficient for the comfortable support of his mother, he agreed to advance such further sums as would be sufficient. He also agreed to make permanent improvements not to exceed the value of $1500, pay the taxes and other fixed charges (which we understand to be interest on the two deeds of trust) over and above the $500 per year, “for which he should have a lien on the farm, but such payments and improvements shall operate as an extension of the terms of this lease.for a period sufficient to pay him therefor at an annual rental of $500.” There was little, if any, dispute about the facts; the pleadings entitled the parties to have the lease reformed. The decree, however, reforming the lease, should include the payment of taxes and interest as above indicated.

The judgment is therefore reversed and the cause remanded.with directions to enter a judgment and decree as indicated in the foregoing opinion.

All concur.


source: Caselaw Access Project

author: JAMES T. BLAIR, C. J.

license: Public Domain

text:
    In Re Petition of LOUIS OPPENSTEIN, EUGENE BLAKE, BIRD H. McGARVEY and W. H. MOORE.
    In Banc,
    July 22, 1921.
    1. ELECTION BALLOTS: Evidence in Criminal'Prosecution: Constitutional Provision: Power of People. The people have power, by a constitutional provision, to prohibit the use of ballots cast at an election as evidence in a criminal prosecution, and if they have so prohibited their use no argument to the effect that the Constitution should not be permitted to stand in the way of a prosecution for crime can be indulged by the courts.
    2. -: -: -: Governmental Policy: Province of Courts. The question whether election ballots can be used as evidence ■ in a criminal prosecution was determined by the convention which framed the Constitution and by the people who adopted it, and with that policy the courts have nothing to do. The whole power of the courts in reference thereto is to decide what policy was adopted, and if the policy is written in the Constitution, whether good or bad, the courts will not displace it and substitute another.
    3. -: -: Secrecy. The proposition that a simple provision in the Constitution that “elections shall be by ballot” introduces absolute secrecy, is established by the decision of the courts, the views of text-writers, and the history of the origin of voting by ballot and the nature of the evils it was intended to remedy.
    4. -:--: -: One-Sided Policy. At the time the Constitution of 1875 was adopted, it was settled beyond doubt that election by ballot meant an election by secret ballot; and the question of policy was not one-sided, but the convention made choice between policies, and the choice is expressed in Section 3 of Article VIII of the Constitution the people adopted.
    5. -: -: Constitutional Provision: Modification: Election by Ballot. Words used in the Constitution cannot be modified or affected by anything outside of the Constitution; they cannot be changed by the Legislature or the courts or by any other than the people. The words of the first clause of Section 3 of Article VIII that “all elections by the people shall be .by ballot” had a definite and settled meaning when they were written into the Constitution, ' and if they stood alone and unqualified by other words therein it would' have to be ruled that ballots cast or counted at an election cannot be used in a criminal prosecution.
    6.-: -: -: Secrecy: Removal by Numbering. The provision in the Constitution requiring the ballots to be numbered removes the veil of secrecy to some extent, but does not destroy it entirely; it does not uncover the ballot of any voter, nor does the provision authorize any action by any one which would, of itself, disclose the character of the ballot.
    7. -: -: -: -: -: Comparing Ballots. Except in cases of contested elections, no permission is given by the Constitution to compare the ballots with the list of voters; and the fact that such permission is expressly given in election contests is no reason for saying that such a comparison may be made in proceedings which are not election contests, such ás a criminal prosecution growing out of alleged frauds at an election.
    8. -: -: Election Officers: Permission to Testify: Ballots as Evidence: Wisdom. Section 3 of Article VIII of the Constitution permits election officers to ’testify in judicial proceedings concerning the way in which a voter voted, .but that provision has nothing to do with the use of the ballots in evidence. And the use of the ballots cannot be authorized on the theory that it is absurd to permit such secondary evidence and exclude the primary evidence, for the question is not the wisdom or consistency of the provisions, but what they declare.
    9.--: -: Comparison in Contests: Inapplicable to Other Proceedings. The proviso that “in all cases of contested elections, the ballots cast may be counted, compared with the list of voters, and examined under such safeguards and regulations as may be prescribed by law,” does not authorize the use of ballots in proceedings other than cases of contested elections. It has no pertinence to any proceeding except cases of election contests, and cannot be extended to such other proceeding. The proviso does not of itself expressly prohibit the use of ballots in other proceedings, yet the very fact that special provision was deemed necessary in cases of election contests makes applicable the well known canon of construction that expressio unius exclusio alterius est.

    10.-: -: -: -: As Interpreted by The Constitutional Convention. That the proviso to Section 3 of Article VIII of tho Constitution does not apply to judicial proceedings is further made plain by a rejection by the Constitutional Convention, by a vote of 42 to 23, of a proposed, substitute which declared that “all ballots shall be subject to inspection and examination in all cases of contested elections and judicial proceedings.”
    11. -: -: Ballots as Evidence: Statutory Authority. In so far as a statute (Sec. 5403, R. S. 1919) conflicts with the Constitution it is without force, for the Legislature has. no authority to authorize what the Constitution prohibits.
    12. -: -: -: -: Primary Elections. Section 3 of Article VIII of the Constitution does not apply to primary elections, and the Legislature is not restrained by said section from enacting a law pertaining to them.
    13. -: -: -: Exposure by Contest: Vote for Other Officers. Where other officers were voted for in the municipal election, and in a contest instituted for the office of mayor a comparison of the ballots with the lists of voters is being made, it is unlawful to make public how said voters voted for such other officers, and if their ballots have thereby been exposed and the veil of secrecy destroyed it would be still further unlawful to use them as evidence in a criminal prosecution.
    14. -: -: -: Statutory Prohibition. Section 5403, Revised Statutes 1919, declaring that ballots shall “in no way be used or any information disclosed that would tend toward showing who voted any ballot,” while invalid in so far as it relates to cases of election contests, is not otherwise prohibited by the Constitution, and foi-bids the use of ballots as evidence in a criminal prosecution.
    15.--: -: -: Governmental Policy: Power of Courts. If the State of Missouri has tied her hands by her Constitution, it is not within the power of the courts or of the Legislature to untie them. Furthermore, if one court can open ballot boxes in any proceeding other than an election contest, all courts can do likewise and the ballot would no longer be a secret ballot.
    16. DENTAL OF WRIT IN ANOTHER CASE. The denial of a writ in another similar case by merely marking the word “denied” on the application cannot be considered as overruling previous decisions. Writs are frequently denied for reasons which do not arise out of substantive law.

      Habeas Corpus.

    Petitioners discharged.

      Frank W. McAllister, Chas. M. Blackmar, Armwell L. Cooper and Edward J. Curtin for petitioners.
    (1) Habeas corpus is the appropriate remedy to secure discharge from custody under a judgment or order exceeding the jurisdiction of the court or which is made in violation of positive law. Sec.'1909, R. S. 1919; Ex Parte Arnold, 128 Mo. 256; In re Heffron, 179 Mo. App. 639. (2) Section 3 of Article VIII of the Constitution of Missouri is so clear and explicit that it would seem no controversy could arise as to its meaning and effect. It provides: (a) That all elections shall be by ballot; (b) That every ballot shall be numbered in the order in which it is received, and the number recorded on the list of voters, opposite the name of the voter who presents it; (c) that the election officers shall not be permitted to disclose how any voter shall have voted, unless required to do so as witnesses in a judicial proceeding; (d) That in cases of contested‘elections the ballots cast may be counted, compared with the list of voters, and examined under such safeguards and regulations as may be prescribed by law. As a matter of fact, so far as the proceedings here involved are concerned, there can be. no real controversy. (3) There is no sort of basis for the contention that the ballot boxes may be opened, the ballots counted or examined and compared with the list of voters, except in one particular class of cases, i. e.,’’ “cases of contested elections.” (4) It is true that under the third provision the election officers may be required, in a judicial proceeding, to disclose “how any voter shall have voted,” but certainly there is no suggestion in this language that the ballot boxes may be opened and the ballots counted, examined or compared with the list of voters; and without the concluding proviso of the section, the conclusion would be inevitable that the ballot boxes could not be opened in any proceeding, not even in election contests. The proviso contains the only authority for opening the ballot boxes or counting or examining the ballots or comparing them with the list of voters, and the language is susceptible of no other construction than that this can only be done in cases of contested elections. (5) The Legislature was commanded to so safeguard and regulate the examination of the ballots, even in election contest cases, that their secrecy would not be thereby violated, and following this constitutional mandate, the General Assembly passed an Act in 1883 (Laws. 1883, p. 91), now Secs. 4911 to 4916, R. S. 1919, an examination of which will, clearly disclose that the Legislature understood the Constitution to mean that even in election contest cases the contents of the ballot boxes could not be made public, but the count, examination and comparison with the list of voters provided for by the Constitution was required to be made under Such circumstances that the secrecy of the ballot would-.not be disturbed, and, therefore, it is provided that only the parties directly interested in the contest may be present when the ballot boxes are opened and the contents examined, and they are sworn “not to disclose any fact discovered from such ballots, except such as may be contained in the clerk’s certificate.” The enactment of some such statute providing the “safeguards” required in Section 3 was a condition precedent to the exercise of the right to count and examine the ballots and compare with the list of voters, and until such “safeguards” had been prescribed, the right could not have been exercised. State ex rel. v. Francis, 88 Mo. 557; Ex parte Arnold, 128 Mo. 256. (5) The foregoing conclusion is fully supported and its correctness demonstrated beyond any doubt by the history of Section 3 of Article VIII of the Constitution in the Constitutional Convention, now made accessible by Volume I of “Journal Missouri Constitutional Convention, 1875.” It appears that the chairman of the committee on elections and electors submitted a proposed article on elections, of which Section 3 was as follows: “Section 3. All elections by the people shall be by ballot. Every ballot voted shall be numbered in the order in which it shall be received and the number recorded by the election officers on the, list of voters opposite the name of the voter who presents the ballot. The election officers shall be sworn or affirfiied not to disclose how any other voter shall have voted unless required to do so as witnesses in a judicial proceeding.” An amendment to Section 3 as reported was adopted as follows: “Amend Section three by adding the following: ‘Provided, that in all eases of contested elections, the ballots cast may be counted, compared with the list of voters and received and such safeguards and regulations as may be provided by law.’ ” It will be noted that Section 3, with the above amendment, is the identical Section 3 of Article VIII of the Constitution. After the adoption of the above amendment, the following substitute for Section 3 as amended was offered: “Strike out Section three as amended and insert in lieu thereof the following: ‘All elections by the people shall be by ballot, but all ballots shall be subject to inspection and examination,. in all cases of contested elections and judicial proceedings, under such proceedings, regulations and safeguards as may be provided by law.’ ” The substitute was rejected by a vote of forty-two to twenty-three. A comparison of the substitute with Section 3, which was adopted, leaves no room for doubt as to the intention of the framers of the Constitution. It demonstrates that there was no thought of permitting the contents of the ballot boxes to be brought into ‘ open court as evidence in any sort of proceeding, and that they could only be opened and the ballots counted and examined and compared with the list of voters in election contest cases. (6) The contention that Sec. 5403, R. S. 1919, is valid as a legislative construction of Section 3, Article VIII, of the Constitution, is not tenable. It simply ignores the constitutional provision. It is clearly unconstitutional in its attempt to require the legal custodians of the ballot boxes to produce their contents before grand juries and in court proceedings other than election contests.

      Cameron L. Orr, Prosecuting-Attorney, for Marshal of Jackson County.
   JAMES T. BLAIR, C. J.

Petitioners constitute the Board of Election Commissioners of Kansas City. They have sued out a writ of habeas corpus to obtain their release from custody upon a commitment for contempt because of their refusal to obey a subpoena duces tecum which commanded them to produce in the Criminal Court of Jackson County the original ballots, poll books, register and certificate of the result of the election in the Fifth Precinct of the Second Ward of Kansas City, used, made and certified in that precinct at the municipal election in April, 1920.

The question presented by counsel is whether the Constitution of tjie State permits the ballots in question to be used in evidence in the manner in which it is attempted to use them in this case. An agreed statement of facts upon one phase of the case'is referred to, as for as necessary, in the opinion.

I. In the cases of this kind it is usual for the argument to be gaade that unless this court holds that ballots, etc., may be freely used in evidence, frauds may go unproved and election crooks go unpunished. This case is no exception to the rule. In his brief counsel says:

“We believe the time has come when this court should fearlessly announce that nothing shall be. permitted to stand in the way of the prosecution of a crime against the ballot-box. Unless we have honest elections, then government by the people is a farce, and it seems trite to say that no rights of an individual elector should be considered when the rights of the whole people are assailed by false ballots or by false count and returns on tbe part of election officials.”

The question the parties present in this case is whether the Constitution of the State permits the use in evidence of the ballots, and the like, used in an election to which the Constitution applies. Counsel does not deny, nor could it be denied, that the people have power, by constitutional provision, to prohibit their use in the manner in which counsel seeks to use them. Of course, if the people have not prohibited such use, the quoted argument has' little application to the question in this case. It is, therefore, clear that what the argument in fact invites this court to do is that, if it shall find the Constitution does prohibit such use, it shall “fearlessly announce” that it will not “support the Constitution of the State” (Sec. 6, Art. XIV,.Mo. Constitution) in so far as concerns Section 3 of Article VIII of that instrument. That counsel really intends that the court shall yield to this argument is beyond belief. It was doubtless but a slip of the pen which was, perhaps, induced by previous slips of other pens in like cases.

The- question in this case is not what the people ought to have put into the Constitution. The question is, what does the provision mean which they did put into the Constitution?

ÍI. When the Constitutional Convention came to the business of drafting the article on Suffrage and Elections, and the people came to the business of adopting the article the Convention had drafted, ^ien ^ie (Iaesti°n °f policy was for consideration, and then the arguments, pro and con, were made and heard. The Convention proposed the adoption of the policy provided in Section 3 of Article VIII and the people adopted that policy when they adopted the Constitution the Convention had drafted. Good or bad, for better or for worse, it was written into the Constitution and this court has no power to change it. The court may decide what policy was adopted, but it may not displace the policy adopted and substitute one which it or counsel may deem to be better. It may not amend the Constitution. It must apply it as the people wrote it.

III. The history of the adoption of the ballot as a method of voting has often been written. Constant repetition of argument based upon the assumption that there can be no consideration of sound policy which could support a provision for an absolutely secret ballot, will excuse some reference to the conditions and arguments which confronted the Constitutional Convention and the people on this head. The method of voting viva voce once prevailed in this State and elsewhere. The literature of the times, both legal and other, demonstrates that, this method had resulted in coercion, corruption and intimidation, and was attended by rioting, violence and disorder. The bribe-giver had certain means of determining whether the votes he bought were cast as agreed. Employers, creditors, landlords, organizations of all hinds, could and did require employees, debtors, tenants, members and others, to vote as directed or suffer such punishment or inconvenience as the circumstances permitted. These were conditions and not theories. Discussions of them and references to literature on the subject can be found in the “Australian Ballot System,” by Wigmore, published in 1889. Statesmen' became much concerned. The system of election by ballot was designed to cure these evils. The heart of the system was secrecy. There was opposition to it. The arguments made now were made then — and others as well. The new system was rapidly adopted. At the time the Convention of 1875 was held, these arguments had been developed a¿id amplified, pro and con. The fragments of the debates in the Convention which are still available show they were considered in that body. With these arguments before it, the Convention adopted Section 3 of Article VIII.

At that time it was already settled beyond doubt that election by ballot meant an election by secret voting. There is practically no difference of opinion as to that. The history of the origin of the system precludes any other view. Counsel does not deny this. Many of the decisions are collated in 6 C. J. pp. 1173, 1174, and 9 R. C. L. secs. 64, 65, pp. 1047, 1048. Among these are found decisions of this State which, many years ago, construed the words “election by ballot” in entire harmony with the construction almost universally given them elsewhere.

The text-books have always announced the same doctrine Judge Cooley, whose great ability is universally esteemed, expressed himself thus:

“The system of ballot voting rests upon the idea that every elector is to be entirely at liberty to vote for whom he pleases and with what' party he pleases, and that no one is to have the right, or be in a position to question his independent action, either then or at any subsequent time. The courts have held that a voter, even in the ease of a contested election, cannot be compelled to disclose for whom he voted; and for the same reason we think others who may accidentaly, or by trick or artifice have acquired knowledge on the subject, should not be allowed to testify to such knowledge, or to give any information in the courts on the subject. Public. policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it. His ballot is absolutely privileged, and to allow evidence of its contents when he has not waived the privilege, is to encourage trickery and fraud, and would in effect establish this remarkable anomaly, that, while the law, from motives of public policy, establishes the secret ballot with .a view to conceal the elector’s actions, it at the same time encourages a system of espionage, by means of which the veil of secrecy may be penetrated and the voter’s action disclosed to the public.” [Cooley on Constitutional Limitations (17 Ed.), pp. 912, 913.]

Numerous decisions support this text. This language is quoted and approved in McCrary on Elections (4 Ed.) secs. 488, 489.

In People v. Cicott, 16 Mich l. c. 312, Christiancy, J., with whom Cooney, C. J., and Graves, J., concurred, said:

“The object of this requirement (that all votes 'be given by ballot’), when considered with reference to the history of our country and the whole theory of popular governments, is too plain to be misunderstood. It was to secure the entire independence of the electors, to enable them to vote according to their own individual convictions of right and duty, without fear of giving-offense or exciting the hostility of others. And with this view the right is secured to every voter of concealing- from all others, or from such of them as he may choose, the nature of Ms vote, or for what person or party lie may have voted. This important object, vital as I think it is in our system of government, would be substantially defeated if the voter could be compelled to disclose even in a court of justice, how he has voted. The Constitution and our statutes which have followed out its spirit, have thrown over the voter an impenetrable shield, under which he may keep the secret of his vote until he shall see fit to disclose it. . . . How an elector may have voted is, under the Constitution and the law, a fact which no man has a right to learn, in this or any other manner, till the elector himself may choose to make it public.”

The proposition, then, that a simple provision that “election shall be by ballot” introduces absolute secrecy, is established by the decisions of the courts, the view of the text-writers, the -history of the origin of voting by ballot and the nature of the evils it was intended to remedy, and is not questioned by counsel for respondent, as we understand him. Further, as this court long ago pointed out, the people who adopted our Constitution and who have the power to amend or revise it, or adopt another in its stead, have not by any of these methods indicated dissatisfaction with Section 3 of Article VIII, as construed by this and (like provisions) practically all other courts of the country.

IV. These principles were before the Convention and the people when the Constitution of 1875 was adopted. It is therefore apparent that the question of policy was not a one-sided one as the argument of counsel in this case seems to assume. It was between policies that the Convention and the people were called upon to choose. They did choose and their choice is expressed in Section 3 of Article VIII. When the meaning of that section is determined, this case is decided.

V. The first clause in Section 3 of Article VIII is that “all elections by the people shall be by ballot.” As already pointed out, these words, at the time they were written into our Constitution, had a definite and settled meaning. If they stood alone and unqualified, there could be no question about their meaning, and petitioners’ position would have to' be sustained without further ado. It is also true that the meaning of the quoted words cannot be held to be modified or affected by anything outside of the Constitution. The Constitution cannot be changed by the Legislature or the courts or any other than the people who adopted it. It is useless labor, therefore, to look elsewhere than in the Constitution for the modifications of the quoted clause which, respondent’s counsel contends, so qualify it as to justify the restraint of petitioners.

(1) It is urged, since the Constitution requires the ballots to be numbered, that the ballot it prescribes is no longer a secret ballot, and, therefore, the ballot of any and all voters may be examined at will. Cases are cited. These are decisions from states in which the constitutional provisions in force merely provided that “elections shall he by ballot” or “by secret ballot,” and in which the Legislature attempted to require that the ballots be numbered so that the ballot of any voter might be identified. [Williams v. Stein, 38 Ind. l. c. 91; Brisbin v. Cleary, 26 Minn. 107; Ritchie v. Richards, 14 Utah, 373 et seq.] These decisions are that elections by ballot necessarily mean elections by secret ballot, and that the Legislature may not provide a means whereby the secrecy secured by the Constitution may be invaded; and that numbering and listing the ballots may not constitutionally be required under such provision. These decisions do not support the contention counsel makes. As heretofore pointed out by this court, the provision in Section 3 of Article VIII, that ballots must be numbered, ‘ ‘ of course removes the veil of secrecy to some extent” but in no wise destroys it entirely. [Ex parte Arnold, 128 Mo. 256.] The provision for numbering has its uses in election contests as the section expressly provides. The mere numbering of the ballots does not, of itself, in fact uncover the ballot of any voter; nor does that provision authorize any action by any one which would, of itself, disclose the character of any ballot. Except in cases of contested elections, no permission is given' to compare the ballots with the list of voters. The fact that such permission is expressly given in election contests is certainly not any reason for saying that such a comparison may be made in proceedings which are not election contests. This exception in Section 3 in no way aids respondent.

(2) Section 3 of Article VIII permits election officers to testify in judicial proceedings, concerning the way in which a voter voted. It has been suggested that it is absurd to think that the Constitution would permit secondary evidence and exclude the primary evidence, the ballots. The question is not the wisdom or consistency of what was done. The question is, what was done! It is clear that the permission to testify has nothing to do with the use of the ballots in evidence. It is merely an exception to the provision that election officers shall not disclose how any voter voted. The exception permits them to testify and permits that only. When dne consideration is given what was before the convention, the idea that this provision is absurd does not seem to be established as correct.

(3) It is contended that the proviso that “in all •cases of contested elections, the ballots cast may be counted, compared with the list of voters, and examined under such safeguards and regulations as may prescribed by law,” in some way aids the argument that the ballots may be put in evidence in proceedings other than contested elections. This finally resolves itself into an argument that the quoted proviso does not limit the use of the ballots to cases of contested elections. Even if true, this could not aid respondent. The question is not whether this proviso itself limits the use of the ballots to contested election cases. Rather, it is whether the proviso extends the use of the ballots to .proceedings other than contested elections. The limitation is found in other words of the section. It is too clear for argument that the proviso has no pertinence to any proceeding except cases of election contests. Upon this question People v. Londoner, 13 Colo. 303, is cited. That decision is chiefly concerned with the question whether quo warranto could be employed to determine who had been elected to office. It was held the proceeding was authorized. With the greatest respect for the learned court which rendered that decision, we find our own decisions out of harmony with its, principal ruling in the Londoner case, and in harmony with the weight of authority elsewhere. [State ex rel. v. Francis, 88 Mo. 557. See note to State v. Ross, 245 Mo. 36, in Annotated Cases 1913E, p. 982 et seq.] In the portion of the decision upon which respondent relies, it is held that:

“The declaration in Section 8, Article 7, of the Constitution, that the ballots may be examined in contested elections, does not limit their examination to such proceedings. The right mentioned has always been freely .exercised in quo warranto, which is the common law method of inquiring into election frauds. And the purpose of this provision was to give, in the election contests authorized by Section 12 of the same article already considered, the privilege of inspecting ballots; not to withdraw it .from the proceeding in which theretofore it had been universally exercised. The leading object of Section 8 was to preserve the purity of the ballot by insuring its secrecy; but lest the language indicating this intent should be carried too far, and become the means of perpetrating fraud, the.privilege in question was carefully extended to election contests in which, perhaps, it might otherwise have been challenged.”

It is apparent that the court was deciding the question whether the provision for comparing the ballots with the lists of voters in contested election cases, itself prevented such comparison in other cases. That it does not do so is clear enough, as we have already pointed out. That is not the question here. In this ease the question is whether the proviso with respect to contested elections authorises the use of the ballots in proceedings other than contested elections. The learned court which decided the Londoner Case did not approach the question from that angle. Counsel seem to have assumed that the proviso respecting contested elections in Colorado was the sole restriction which could be relied upon to prevent the use of the ballots in quo warrcmto proceedings. -That contention the court answered, but that answer is not relevant to the question before us. Again, though the provisos respecting contested elections in Section 3 of Article VIII and in Section 8 of Article VII of the Constitution of Colorado, do not of themselves expressly and in terms prohibit the use of the ballots in other proceedings, yet the very fact that special provision was deemed necessary in the case of contested elections makes applicable the well known canon of construction “expressio unius, exclusio alterius.” [Ex parte Arnold, 128 Mo. l. c. 263, 264.] The effect of this rule is not discussed in the Londoner Case. This makes it still more apparent that the court was not called on by the briefs to consider a contention like that made here.

VL It is argued that the decision in Gantt v. Brown, 238 Mo. 560, authorizes the use of the ballots, poll books, etc., in the trial of a criminal case. It is obvious that this is not a correct construction of that decision. No such question was before this court that case- ^ a Poor compliment to our brethren then upon this bench to attribute to them an effort to decide a question in no wise presented by the record before them. That case dealt with an election contest and considered the meaning of the proviso to Section 3 of Article VIII of the Constitution, which proviso expressly provides that in “all cases of contested elections the ballots cast may be counted, compared with the list of voters, and examined under such safeguards as may be prescribed by law. ’ ’ That the question in that case has no analogy to that presented by this record, is beyond cavil. The learned writer of the opinion in Gantt v. Brown concurred in the opinion In Re Feinstein, in which the inapplicability of the decision to a case somewhat like this is pointed out. In the concurring opinion of Lamm, J. (in which a majority concurred), in Gantt v. Brown, 238 Mo. l. c. 581, that learned jurist summed up the holding thus: “Our ruling does not mean that the secrecy of the ballot should be exposed except in sot far as it may be absolutely necessary under the allegation of the pleadings in an election contest, to show fraud, if any, and to that extent neither the Constitution nor the statutes protects the secrecy of the ballot.”

That this court in that case had no idea it was passing upon any question save that pertaining to contested elections is obvious from the record it had before it, the language of the opinion and the rule it announced, and by the subsequent course of the judges who participated in that decision. The case of Gantt v. Brown has no relevancy to the question counsel present in this ease.

VII. The Constitutional Convention, after having put Section 3 of Article VIII in the form in which it now stands, had before it the question of striking out that section and adopting the following: “All elections by the people shall be by ballot, but all ballots shall be subject to inspection and examination, in all cases of contested elections and judicial proceedings, under such proceedings, regulation§ and safeguards as may be provided by law.”

This substitute was rejected by a vote of 42 to 23. Three members were absent. The power to 'inspect and examine the ballots in “judicial proceedings” would have been given by this amendment. The Convention rejected it.

It is clear from this that the Constitutional Convention had before it, in the proposed substitute section, the very question which counsel discuss. This substitute would have expressly given the authority now sought to be exerted. When the Convention defeated it, it passed upon the question in this case. Its intent could hardly have been more clearly exhibited than by the vote upon the substitute section.

VIII. The decision In re Massey, 45 Fed. (D. C.) 629, is cited. In that case the question was “whether by the Act of Congress and the laws of the State of Ar-. kansas,' the custodian of ballots cast, at an election held for members of Congress, pursuant to said laws, may. be compelled by a F'ederal court, in administration of the criminal law of the United States, to produce the ballots cast at said election, or not.” After stating the question, thus, the learned district judge held the Federal law was, in such a case, paramount and that restrictions upon freedom of action under it could not be imposed by the State. As he remarks, he might well have left the matter there as decided by the principle he had laid down. Nevertheless, he, proceeded to discuss the question whether the laws of Arkansas made any provision which would permit the examination of the ballots in a case to which those laws applied. With great respect, we do not deem this part of the opinion deserving of great weight in the question in the instant case. First, it is clearly and admittedly obiter; second, it reaches a conclusion as to the construction of a law of a state which is in conflict with the construction of that law placed upon it by the highest court ■ of that state; third, the learned judge obviously goes into the discussion of what the law should be, of what the proper policy is, rather than into the question of what the law means, i. e., what policy the state had adopted.

IX. Section 5403, Revised Statutes 1919, is cited. It is, of course, not contended by counsel that this section can be held to give authority which is denied by the Constitution. In so far as it conflicts with the Constitution it is without force in this case. The Legislature had no power to authorize what the Constitution prohibits. This is not a primary election case. With respect to such elections the Legislature is not restrained by the Constitution, since Section 3 of Article VIII does not apply to them.

X. It is said that in an election contest in Kansas City the list of voters was made and ’the respective numbers of the ballots cast were shown in* connection with the names on this list, and that it was also shown for whom each voter voted and that all this is on file in the office of the Circuit Clerk of Jackson County, It is argued that these facts show that the ballots have already been exposed and that “the veil of secrecy has been destroyed. and there is now no foundation for the contention that the ballots of any precinct, so exposed in the election contest, should not be produced in evidence.” The agreed statement of facts shows that the contest referred to affects the office of mayor only. The ballots listed seem to have been those east for contestant in that case. Many other officers were voted for and against in that election. The lists show what ballots were cast for contestant in the mayoralty race and who cast them. They could not legally have included a showing as to officers other than mayor. The only votes which lawfully could have been reported upon and made public in the contest case are those for mayor. The examination of ballots, in so far as they affect one race for.office, which lawfully may be counted and compared with the list of voters in an election contest, in no wise authorizes the making public of the Avay in Avhich those who cast such ballots voted on other offices. Further, if the.votes pertaining to races other than that for mayor were unlawfully made public, this unlawful act would not justify another violation of the Constitution in this proceeding. This is too clear to require argument.

XI. "While Section 5403, Revised Statutes 1919, in so far as it conflicts Avith the Constitution, is inapplicable to ballots cast at an election Avhich is such in a constitutional sense, it is entirely general in ^s terms and applies to all ballots except to the extent to which the Constitution prevents such application. There is nothing in Section 3 of Article VIII which prohibits the Legislature from enacting that the ballots shall not be used in evidence in proceedings other than contested election cases. Therefore even though it could be held that the Constitution did not prevent the use of the ballots in this case in the Avay in which it is sought to use them, still the effect of Section 5403 would have to be considered. That section, among other things, provides that the ballots shall “in no way be used or any information disclosed that would tend toward showing who voted any ballot.”

In this case it is proposed to bring into court and use in evidence ballots of which, as shown by the agreed statement of facts, the numbers and names of the voters who cast the particular ballots are already on file in the-office of the Circuit Clerk of Jackson County. This record in the clerk’s office, respondent insists, is a public record. To say «that the use of the ballots in evidence would not, in these circumstances, “tend toward showing who voted any ballot” would require some hardihood. The statute prohibits their use.

XII. State ex rel. v. Kinsey (No. 18035), which was referred to in State ex rel. Feinstein v. Hartman (No. 22,572), is not cited by respondent in this case. In the Feinstein Case enough was said of State ex rel. v. Kinsey to show that it was inapplicable ™ case- There was no occasion to go further at that time. In this case it is sufficient to say that in the Kinsey Case the application for the writ was disposed of without opinion and that it nowhere appears what reason moved the court to deny the writ for which application was made. It is quite certain that the court could hardly be thought to have intended to overrule any of the previous decisions by merely marking an application for a writ “denied.” It would be a remarkable departure from its customary practice if it did so intend. It is quite as certain that it did not intend to decide anything which would contravene the Constitution. It would have done both had it intended its action in denying the writ to be interpreted as counsel interpreted it in the Feinstein Case. Writs are frequently denied for reasons which do not arise out of substantive law.

XIII. Nearly all the arguments advanced by respondent have been considered heretofore by this court in decisions cited in previous paragraphs. To some extent we have reconsidered these and given expression to our views upon them. If, as said in.State ex rel. v. Francis, supra, the State of Missouri has tied her own hands, the court is not empowered to undo what she has done. Also, as said in Ex parte Arnold, supra, if one court may open the ballot boxes, .then all courts may do so and the ballot no longer is a secret ballot. So far as concerns the question urged by respondent, the people have chosen the policy they desired. They had full power to choose. Courts and Legislature must abide by that choice.

The petitioners are discharged from custody.

All concur, except Eigbee and D. E. Blair, JJ., who dissent.


author: GRAVES, J.

text:
    THE STATE ex rel. LEO E. KOEHLER v. MILES BULGER et al., Judges of County Court.
    In Banc,
    July 22, 1921.
    1. MANDAMUS: Payment of Salary. Mandamus is an appropriate remedy to compel a public official, whose duty it is to pay another official his salary, to pay such salary, where its amount is fixed by law; for then no discretion is left as to the amount, and where the only question is what is the amount the law fixes as the salary, it is purely a legal one.
    2. COUNTY ENGINEER: Salary: Por Ex Officio Duties Only. The words of the statute (Sec. 10556, R. S. 1909) providing that in counties containing fifty thousand inhabitants, etc., “the’■county-surveyor shall be ex officio county ’ highway engineer, and his salary as surveyor and ex officio county highway engineer shall be not less than two thousand dollars and not more than three thous- and dollars, as fixed by the county court,” in view of the history of the statute preceding such' proviso, has reference to ex officio duties and ex officio salary only; the proviso did not mean that the county court could fix the salary of the officer hoth as county surveyor and ex officio county highway engineer at less than the statutory salary of the surveyor, but the term “as surveyor and ex officio county highway engineer” had reference to the office of engineer, and not to that of surveyor.
    3. -: -: Amendment of 1919. Likewise the amendment to such statute made in 1919 (Sec. 10787, R. S. 1919) providing that in such counties “his salary as surveyor and ex officio county highway engineer shall be not less than three thousand dollars and not more than five thousand dollar's, as may be fixed by the county court,” meant that the salary of the ex officio county highway engineer, for the performance of the duties of that office, should be not less than three thousand dollars, in addition to his salary as county surveyor. The statute did not mean that the- court could fix his salary for the performance of the duties of both offices at not less than three nor more than five thousand dollars, but it meant that the court could fix his salary for his ex officio duties as highway engineer at not less than three nor more than five thousand dollars, and did not give the court power to fix his salary as surveyor at all. In such counties, he is entitled to at least three thousand dollars a year, in addition to his statutory salary as county surveyor-.
    Mandamus.
    Writ granted.

      Clinton A. Welsh for relator.
    (1) The law relating to the office of county surveyor is found in Secs. 12709-12745, R. S. 1919. This is a separate and independent chapter creating the office of county surveyor; this is the office to which relator was elected, and about which there is- no dispute. He is entitled to a salary of $3,000 per annum as county surveyor and bridge commissioner, under Sec. 11041, R. S! 1919. (2) The office' of county highway engineer was created in 1907, Laws 1907, p. 401. The office was to be filled by appointment made by the county courts of the different counties in the State. The laws of 1909, Laws 1909, p. 755, now-See. 10787, R. S. 1919, provided for the filling of the office of connty highway engineer in counties of rank of Jackson County by providing that the county surveyor shall be ex officio county highway engineer. The county surveyor has no option as to whether he shall be ex-officio county highway engineer, but the law makes it obligatory upon him to hold the office. State ex inf. v. Southern, 265 Mo. 285. Relator was elected to the office of county surveyor of Jackson County, Missouri. The law attaches to this office ex officio the office of county highway engineer; that is, the law thus connects the two offices with separate and distinct duties together, and required the same person to discharge the duties of both offices. Callahan v. Davis, 125 Mo. 27; Howard v. Heck, 88 Mo. 259; J ones v. Williams, 139 Mo. 66. (3) An officer holding two offices can claim compensation for both offices. 29 Cyc. 1424; Dyche v. Davis, 92 Kan. 971, 977. (4) The law relating to county surveyors and the law relating to county surveyors and ex officio county highway engineers has been continued in force in this State for some time, and it must be presumed that the Legislature meant just what it has done. It was provided in Sec. 10556, R. S. 1909, that the county surveyor in counties of the population of Jackson County shall be ex officio county highway engineer, and his salary “as surveyor and ex officio county highway engineer shall not be less than $2,000 and not more than $3,000.” If the Legislature did not intend this salary as compensation for services as county surveyor and ex officio county highway engineer, in addition to his salary of $3,000 under Sec. 10737, R. S. 1909, as county surveyor and bridge commissioner, then their intent was to cut down the salary of the county surveyor, in counties of the population of Jackson County, and to pay nothing for his services as county surveyor and ex officio county highway engineer. Cunningham v. Current River Ry. Co., 165 Mo. 271.

      A. L. Cooper, County Counselor, and Wallace Sutherland, Assistant County Counselor, for respondents.
    (1) An officer is entitled to no compensation for services unless the statute gives it, and statutes providing for compensation must be strictly construed. Gammon v. Lafayette County, 76 Mo. 675; State ex rel. v. Wofford, 116 Mo. 220; State ex rel. v. Brown, 146 Mo. 401; State ex rel. v. Adams, 172 Mo. 1. (2) Statute fixing salary of surveyor and ex officio county highway engineer embraces entire compensation. . (3) The case of State ex rel. McGrath v. Walker, 97 Mo. 162; State ex rel. v. Sheehan, 269 Mo. 421, and Cunningham v. Current River Ry. Co., 165 Mo. 271, referred to by relator, all involved the right to extra compensation where the language of the statute was clear that the compensation for additional service was in addition to other compensation. (4) In view of the plain provisions of the statute, there is neither necessity nor occasion to discuss other questions referred to by relator, for as said in the Mc-Grath case, it could make no difference whether Mc-Grath was ex officio a member of the hoard of equalization or not, the law being clear in either event.
   GRAVES, J.

This is a proceeding in mandamus. To relator’s petition, the respondents, who constitute the County Court of Jackson County, entered their appearance, waived the issuance of our alternative writ, and filed their demurrer to such petition as if it were the alternative writ. The questions are purely questions of law. Relator was elected County Surveyor of Jackson County in November, 1920, and took possession of his office January 1, 1921. The contest is over the amount of salaries to which he is entitled. By virtue of his election to the office of County Surveyor he avers that he became ex officio County Highway Engineer of said county. He avers that he is entitled to $250 per month as County Surveyor and Bridge Commissioner, which he says the respondents have regularly paid him. 'He also avers that he is entitled to $250 per month ex officio County Highway Engineer, which salary for the month of January the respondents duly paid to him, but that since said month of January the respondents have claimed that he was only entitled to the sum of $2,000 per year as ex officio County Highway Engineer, instead of $3,000, thus making his aggregate salaries for the two offices, $5,000 per annum, instead of $6,000 per annum. He avers that since January the respondents have tendered to him each month a warrant for his salary as ex officio County Highway Engineer in the sum of $166.-66%, which is the monthly salary if he is only entitled to $2,000 per annum, instead of $3,000 per annum. These warrants the relator declined to accept, but had throughout demanded $250 per month. The several sections of the statutes under which relator bases his claims are cited and set out in his petition, but these we leave for the opinion. As the demurrer admits all well pleaded facts, we have the simple issue as to whether or not the relator, under the law, is entitled to $250 or only $166.66% per month as ex officio County Highway Engineer.

* He asks that this court compel the respondents, as judges of the County Court of Jackson County, to issue him warrants for the months of February, March, April and May, in the sum of $250 each, or in the aggregate sum of $1000 for the four months. Such is the case for determination.

I. It may be conceded, as suggested by the respondents, that it devolves upon relator to show a clear right to the remedy herein sought. If, however, the amount of a salary is fixed by law, and for that reason no discretion is left as to the amount, then mandamus is an appropriate remedy to enforce the payment of a salary to a public official against the officer or officers, whose duty it is to pay such official. In such cases the salary is a fixed amount, if it exists at all, and the sole question is the legal one as to whether or not there is a liability. In the insistence above, respondents do not mean to question the remedy used in this case, but what they mean is that it must be plain that the salary claimed is one allowed by law. This clearly appears from the whole brief.

II. Relator contends that he holds two offices, one by election and the other ex officio. These offices he contends are created and governed by separate laws, and the duties thereof are fixed by such separate laws, and further that the salaries are likewise fixed by these separate statutes. The county surveyor, and his duties and fees, are fixed by Chapter 117, Revised Statutes 1919. It is an ancient office coming to us from Territorial days. Highway engineer is much more modern (Laws 1907 p. 401), and the provisions of law governing this office is found in Article 6 of Chapter 98, Revised Statutes 1919. By the Act of 1907, supra, the office was first created. In 1909 this Act of 1.907 was repealed and a new law enacted in lieu thereof, which became Article Y of Chapter 1.02, Revised Statutes 1909. This Act of 1909 in its general provisions is substantially the same as the present law, Article 6 of Chapter 98, Revised Statutes 1919. There were, however, some changes made in 1919, which are material here.

It would perhaps be best to start with the Act of 1907, Laws 1907, page 401. By this act there was created in the several counties of the State ‘ ‘ the office of county highway engineer.” Such officer was to be appointed by the county court for a term of two years, the salary of which office should not be less than $300 nor more than $2,000 as might be fixed by an order of the county court. The office was separate and distinct from that of county surveyor. The county surveyor was not mentioned in the act. By the Act of 1909, which became Article Y of Chapter 1.02, Revised Statutes 1909, the first section (Sec. 10551, R. S. 1909) created the office of county highway engineer, such office to be appointed by the county court for term of one year, and until his successor was appointed and qualified. This Section 10551 applied to the “several counties” of the State. The fee provision of this Act of 1909 (which became Sec. 10553, R. S. 1909) reads:

“The county highway engineer shall receive such compensation as may be fixed by order of the county court of his respective county: Provided, his salary shall not be less than three hundred dollars nor more than-two thousand dollars per annum: Provided, further, that in all counties in this State which contain or may hereafter contain more than fifty thousand inhabitants, and whose taxable wealth exceeds, or may hereafter exceed, the sum of forty-five million dollars, and which adjoin or contain therein, or may hereafter adjoin or contain therein, a city of more than one hundred thousand inhabitants by the last decennial census, the county surveyor and ex officio highway engineer shall receive a salary of not less than two thousand dollars nor more than three thousand dollars, as may be fixed by the county court.”

By Section 10556, Revised Statutes 1909, the county court was authorized to appoint the county surveyor as county highway engineer, if he were competent. In which event, such county highway engineer should “receive the compensation fixed by the county court, as provided in Section 10553, in' lieu of all fees, except such fees as are allowed by law for his services as county surveyor.” Up to this date no fees had been established for a county highway engineer, nor is it a fee office now. It was a salary as fixed by the county court. There were fees then allowed to the county surveyor. [Sec. 10714, R. S. 1909.] See also Revised Statutes 1909, Section 11327, as to counties having 50,000 or more inhabitants and which adjoin a city of more than 300,000 inhabitants. In this Section 10556, Revised Statutes 1909, it was further provided:

“Provided, however, that in all counties in this State which contain or which may hereafter contain more than fifty thousand inhabitants, and whose taxable wealth exceeds or may hereafter exceed the sum of forty-five million dollars, or which adjoin or contain therein, or may hereafter adjoin or contain therein, a city of more than 100,000 inhabitants by the last decennial census, the county surveyor shall be ex officio county highway engineer, and his salary as surveyor and ex officio county highway engineer shall be not less than two thousand dollars and not more than three thousand dollars, as may be fixed by the county court, and all fees collected in such counties by the surveyor,, for his services as surveyor, shall be paid into the county treasury, to be placed to the credit of the county revenue fund.”

This covered Jackson County, but in 1907 the county surveyor of said county had been placed on a salary basis, and his salary fixed at $3,000 per year payable monthly. [R. S. 1909, sec. 10737; Laws 1907, p. 420.]

,Bearing in mind that both Sections 10556 and 10737 applied to Jackson County the question is, how is the expression ‘£ as to surveyor and ex officio county highway engineer” as used above, to be understood? We start with this Act of 1909, because we can best get the bearings at this date. Shall we, in the face of the fact that the County.Surveyor of Jackson County was a salaried office, and the salary fixed by law at $3,000 per annum, reasonably say that Section 10556 in this proviso, meant to combine both offices and make the salary of both dependent upon the order of the county court, with a maximum for both services of $3,000, or shall we say that the expression “salary as surveyor and ex officio county highway engineer,” as used here, has reference to the ex officio duties and the ex officio salaries? We are inclined to the latter view, when the history of the laws are considered. The surveyor has always been an elective officer, and this elective office had been and was upon a salary basis in Jackson County, and the counties of its class, when the office of county highway engineer was created. We had no county highway engineer prior to 1907, and by tbe Act of 1907 they were appointed by tbe county court and tbeir salary fixed by order of the county court. Not until 1909 were duties of tbis office made ex officio tbe duties of tbe surveyor in sucb counties as Jackson. It is hardly reasonable to bold that tbe lawmakers intended to have tbe county court fix tbe salary for tbe duties of tbe surveyor and for tbe county highway engineer, and be empowered to fix tbe salary of both at less than tbe statutory salary of tbe surveyor. We are inclined to tbe view that the term “as surveyor and county highway engineer’’’ bad reference to tbe office of engineer and not that of surveyor. If be were signing instruments in tbe capacity of engineer, be would properly sign “County Surveyor, and Ex officio County Highway Engineer. ’ ’ In fact to sign otherwise would be wrong. [Callahan v. Davis, 125 Mo. 27.]

We conclude that under tbe Act of 1909, Revised Statutes 1909, secs. 10551 et seq., tbe reference in Section 10556 as to salary has reference solely to tbe duties'as engineer. What we have said as to Section 10556 applies with equal force to Section 10553, both of which we have quoted, supra. Tbe amendments to tbe Act of 1909 we take next.

III. Going now to* more recent amendments, we shall try to find tbe present status of this office in Jackson County. It must be borne in mind that we are discussing tbe statutes applicable to that county and counties of its class, and not other counties or classes of counties. In 1919, Section 10551, Revised Statutes 1909, was amended. [Laws 1919, f>. 636.] By tbis amendment (which is now Sec. 10782, R. S. 1919) the county court appoints tbe county highway engineer for no fixed term, but for sucb time as that body finds advisable, and at a compensation to be fixed by tbe court. Tbis therefore left all county highway engineers to be appointed by tbe county courts, except the excepted classes found in tbe statutes. Jackson County belonged to an excepted class under the Act of 1909, and so continues today. [Sec. .1787, R. S. 1919.] In. 1919, Laws 1919, p. 634, Section 10556, Revised Statutes 1909, was amended and the substantial amendment was to change the old law where it gave the county court the right to allow from $2,000 to $3,000, so that the county court could allow from $3,000 to $5,000. This amended section is the present .Section 10787, Revised Statutes 1919. • .

What we said as to old Section 10556 applies with equal force to this new section, in so far as the office to which it refers is concerned. As said, the salary of the county surveyor was fixed by law. He is and was an elective officer. It must be kept in mind that the office of county highway engineer, and of county surveyor, are. separate offices, with separate and distinct duties. In this age of road building (the thing which called for a highway engineer) the duties of the office of highway engineer are extremely onorous, and it is not reasonable to conclude that the law-makers intended to abolish the salary of the surveyor (which was $3,000) and give the county the power to say that the duties of both officers must be performed for $3,000 per year. Yet, if respondents are right in their contentions, then the County Court of Jackson County could make an order that relator should be allowed only $3,000 for both offices. Their contention amounts to saying that the Act _ of 1909, as well as the Act of 1919, in effect, repealed Section 10737, Revised Statutes 1909, now Section 11041, Revised Statutes 1919, which fixed the salary of county surveyor at $3,000 per annum.

We do not believe that the Jaw-makers so intended. If it was intended to so combine the two offices by the Act of 1909, Section 10556, Revised Statutes 1909, that only one salary was to be paid, the intention would have been more specifically made, and some mention would have been made of the fixed salary of $3,000 to the surveyor alone. With the view urged by respondents, the real purpose of the Act of 1909, was to empower the county court, by order, to reduce the salary of surveyor (fixed by tbe existing law) from $3,000 to $2,000, and allow such officer nothing for the duties of “county surveyor, and ex officio county highway engineer.” Such would be the effect of the contention made by respondents, as to the Act of 1909. So, too, as to the present law.

If it be true that the present Section 10787 was an allowance for both offices, then by order of the county court the salary for both offices could be fixed at $3,000, whilst the existing laws allow $3,000 to the surveyor’s office' alone, and the Act of 1909 must have repealed the section which fixed the surveyor’s salary at $3,000, which section is now Section 11041, Revised Statutes 1919. This for the reason that such section fixed a salary by law, and Section 10737 (as respondents would have us construe it) vests the power of fixing the surveyor’s salary in the county court. The Act of 1909, Laws 1909, p, 755, which is the basic law involved, shows no legislative intent to make such a repeal.

It specifically mentions the things repealed, but no part of the Surveyor’s Act, or the act concerning his salary, are mentioned. So we repeat what we said as to the Act of 1909, that the words ‘ ‘ as county surveyor and ex officio county highway engineer” as used through all these acts has reference to the office and to the duties of the highway engineer, and the pay there mentioned is to cover those duties, and not to cover the duties of the county surveyor as such. For services as county survey- or, the salary is fixed at $3,000 per annum. For “county surveyor and ex officio county highway engineer” the salary is not less than $3,000 nor more than $5,000. More than the minimum of $3,000 cannot be claimed, unless the county court has so ordered. The $3,000 is fixed by law, and must be paid.

We conclude that relator is entitled to two salaries of $3,000 each, one as county surveyor, under Section 11041, Revised Statutes 1919, and one under Section 10784, Revised Statutes 1919.

It therefore follows thpt our alternative writ should be made permanent, and it is so ordered.

All concur.