author: VALLIANT, J.

text:
    CITY OF ST. LOUIS v. HENRY TIELKEMEYER, Appellant.
    Division One,
    March 1, 1910.
    1. INFORMATION: Selling Liquor Without License: Agent: Bar. Where the ordinance prohibits any person, “directly or indirectly, in person or by another,” to sell intoxicating liquors “for or on his or their account,” it is not necessary to specify whether defendant, who sold the liquor, in doing so was acting on his own account or as agent of another. Where the charge is that the man himself did the act it is immaterial whether he was acting for his own profit or that of another; and a conviction under such an information will be a bar to another prosecution against the same defendant for the same act.
    2. -: -: Charging Exceptions: Merchants’ License. Where the ordinance, in one section, forbids any person to sell intoxicating liquors without a license, and the definition of the act forbidden is complete in that section and no words of exception are contained therein, the information is not insufficient because it does not also charge that defendant did not come within the exception of another section which declares that the article shall not apply “to any sale of intoxicating liquors by any person under authority of ordinance regulating merchants’ licenses.” The rule requiring a negation of the exception applies only when the qualifying words are a part of the definition of the act forbidden and the doing of that act cannot be charged in the language of the statute or ordinance without negativing the exceptions.
    3. ' ORDINANCE: Conflicting with Statute. A city ordinance is not valid if it is in conflict with the statute law of the State on the same subject.
    4. -: -: Crime. The State has authority to declare an act to be a crime; the city has no such authority.

      5. -:-: Dramshop-Keeper. There is no such material difference in the definition of the term dramshop-keeper as given hy the statute and as given by the ordinance of St. Louis as affects a prosecution by the city for the selling of liquors without a license. The ordinance, in defining a dramshop-keeper as one who is not permitted to sell intoxicating liquors in excess of one gallon, whereas the statute says three gallons, does not render a person liable to a penalty for doing what he is authorized by the law of the State to do, and it is not therefore in that respect in conflict with the statute upon the same subject.
    6. -: -: Material Conflict: Selling According to Ordinance. Since the ordinance forbids any person to sell intoxicating liquors “without a license first obtained therefor according to the provisions of this article,” and provides that the license shall be obtained from a city license commissioner and prescribes the process, and all that was superseded by the Act of 1893 creating the office of excise commissioner, who is given the exclusive authority to grant dramshop licenses and a different process of obtaining a license is prescribed thereby, the two are in conflict; and as the only authority the city had for proceeding against defendant at the date he sold the liquor without a license was under the ordinance, a conviction cannot stand. The ordinance only forbids the selling of liquor without a license obtained according to the provisions of the ordinance, and after the Act of 1893 was passed no one could obtain a license in that way, and no authority remained in the city to prosecute one who failed to obtain a license in that way, and the city had not authorized a prosecution for selling without a license obtained in the way the statute prescribed.
    7. REPEALS: By Implication: Ordinances. Repeals by implication are not favored, but that rule must yield to a necessary implication. Besides, the General Assembly in framing a statute is not expected to expressly refer to a city ordinance.
    Appeal from St. Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge.
    Reversed.

      Chas. H. Brock and Simon S. Bass for appellant.
    (1) A statement filed in proceedings under a city ordinance for the recovery of a penalty, must, in order to be sufficient, specify the elements of tbe offense sought to be charged' with enough particularity to bar another action for the same offense. St. Louis v. Babcock, 156 Mo. 148. (2) When the ordinance creating an offense sets forth an exception thereto, the statement, in order to be sufficient, must negative the exception. Tarkio v. Loyd, 109 Mo. App. 171. (3) The State has the power, by the enactment of a general law on any subject to repeal any provision of the charter of the city of St. Louis, or any ordinance enacted thereunder on the same subject. Constitution, secs. 23 and 25, art. 9; Charter, cl. 5, sec. 26, art. 3; St. Louis v. Dorr, 145 Mo. 466; State v. Kessels, 120 Mo. App. 240; State v. Stobie, 194 Mo. 14. (4) A special statute of this State, enacted in 1889, “confines and restricts” the city of St. Louis in the passage of its ordinances and in its jurisdiction within the limits prescribed by State law on the same subject. R. S. 1899, sec. 6258; St. Louis v. Meyer, 185 Mo. 583; Moberly v. Hoover, 93 Mo. App. 663; Warrensburg v. McHugh, 122 Mo. 649. (5) The definition of a dram-shop-keeper under the city ordinance is inconsistent with the definition of a dramshop-keeper under the general law of the State, and therefore void. R. S. 1899, sec. 2990; St. Louis v. Meyer, 185 Mo. 583; St. Louis v. Wortman, 213 Mo. 131; St. Louis v. Klausmeier, 213 Mo. 119. (6) That part of section 2030 of the ordinance defining the offense is so related to the definition of a dramshop-keeper therein that if the definition of a dramshop-keeper therein is void as being inconsistent with the definition of a dramshop-keeper under the general law of the State, the whole of said section must be held void. State v. Bengsch, 170 Mo. 81; State v. Bird, 186 Mo. 205; Haag v. Ward, 186 Mo. 325. (7) Section 2031. of the ordinance relating to applications for dramshop licenses has been repealed in toto by the general law of the State, and, if so, that part of section 2030 which defines the offense with which appellants are charged, must be declared void for the reason that the two sections are so interrelated and welded together as to be an entity, standing or falling together. E. S. 1899, secs. 3023, 2997; Laws 1905, p. 142; State v. Bengsch, 170 Mo. 81; State v. Bird, 186 Mo. 205; Haag v. Ward, 186 Mo. 325; State v. Higgins, 84 Mo. App. 531; Cooper v. Hunt, 103 Mo. App. 9; State v. Higgins, 71 Mo. App. 180; s.-c., 97 Mo. App. 212; State v. McCammon, 111 Mo. App. 626; State v. Hoblitzelle, 85 Mo. 64. (8) The penalty section of the ordinance, section 2044, is void for the reason that it is inconsistent with the State law on the same subject, in that it prescribes a higher penalty for the act prohibited than is provided by the general law of the State. E. S. 1899, sec. 3004; State v. Taylor, 186 Mo. 608; State v. Anslinger, 171 Mo. 600; State v. Pond, 93 Mo. 645; Commonwealth v. Kimball, 21 Pick. (Mass.) 373; State v. Whitworth, 8 Port. (Ala.) 434; Smith v. State, 1 Stew. (Ala.) 506; Hoffman v. Commonwealth, 123 Pa. St. 75; Leighton v. Walker, 9 N. H. 59; Carter v. Hawley, Wright (Oh.) 75; State v. Callahan, 109 La. 946; Cor man v. Hammond, 28 Ca. 85.

      L. E. Walther and B. H. Charles for respondent.
    (1) The city has authority under its charter to license, regulate, tax or suppress saloons, bar houses, tippling houses, dramshops, and gift enterprises. Charter, art. 3, sec. 26, cl. 5; E. S. 1899, pp. 2485, 2486. (2) Every dramshop-keeper is required by law to take out both a State license and a city license. E. S. 1899, sec. 3026; Laws 1905, pp. 142,143; State ex rel. v. Higgins, 71 Mo. App. 180; State ex rel. v. Bell, 119 Mo. 70. (3) All the provisions of the city ordinance respecting dramshops remain in force except such as have been repealed by the statutes creating the office of excise commissioner for the city. State ex rel. v. Bell, 119 Mo. 70. (4) It is no objection to an ordinance that it covers the same ground as a statute. St. Louis v. Bentz, 11 Mo. 43; St. Louis v. Cafferata, 24 Mo. 94; St. Louis v. D'elassus, 205 Mo. 578. (a) A defendant may even be subjected to two penalties for the same offense. St. Louis v. Cafferata, 24 Mo. 97; St. Louis v. Muir, 164 Mo. 610; State v. Gfustin, 152 Mo. 108; Canton v. McDaniel, 188 Mo. 228; Lebanon v. Gordon, 99 Mo. App. 277. (b) Merely because two laws are different does not make them inconsistent, and the mere fact that an ordinance differs from the general laws of the State will not invalidate it, provided it is not inconsistent therewith. St. Louis v. Cafferata, 24 Mo. 97; St. Louis v. Delassus, 205 Mo. 578. (c) “The right of a municipal corporation in this State to maintain in its own name a proceeding to recover a fine for nonobservance of an ordinance has never been questioned, even though there be a general law of the State imposing a fine for a like offense.” Ex parte H'ollwedell, 74 Mo. 402; St. Louis v. Cafferata, 24 Mo. 94; State ex rel. v. Walbridge, 119 Mo. 392. (5) It was not necessary for the statements or informations to negative the provisions of an entirely different section from that in which the offense is defined and denounced. State v. Snyder, 182 Mo. 498; State v. Bockstruck, 136 Mo. 351; State v. Handler, 178 Mo. 42. (a) The matter found in section 2034 of the ordinance is not an exception within the meaning of the rule, (b) Where defendant comes within the provisions of a subsequent section or proviso, this is a matter of defense, and not to be pleaded in advance in the information. State v. Quinn, 170 Mo. 183; State v. Handler, 178 Mo. 42; State v. Snyder, 182 Mo. 498; State v. Bockstruck, 136 Mo. 351; State v. Jenkins, 139 Mo. 535'.
   VALLIANT, J.

Appellant was convicted in the. Second District Police Court of St. Louis of selling intoxicating liquors without a license, in violation of a city ordinance, and appealed from that judgment to the St. Louis Court of Criminal Correction, where he was again tried and convicted and sentenced to pay a fine of fifty dollars, from which judgment he has taken this appeal.

The testimony at the trial showed that appellant had committed the act specified in the information. There was no testimony to the contrary, nor did he claim to have had a license. There was at first some indication of a purpose on the part of appellant to construct a defense on the theory that he was acting as agent or officer of a social club dispensing its own liquors to its own members, but if he ever had such a purpose he abandoned it at the trial, for he offered no evidence to sustain it. He introduced in evidence the charter of what purported to be a social club, called the National Athletic Club, but offered no evidence to show the real character of the club or his connection with it.. There is no such defense now claimed. The only grounds relied on by appellant for a reversal of the judgment are the alleged insufficiency of the information to state facts sufficient to constitute a charge of violation of the city ordinance and a denial of the validity of the ordinance itself. Points on those grounds were duly made in the trial court, and when ruled against appellant his exceptions were preserved in due form.

The city ordinance on which this prosecution is based, or so much thereof as is necessary to he considered in this case, is as follows:

“Sec. 2030. Dramshop-Keeper Defined. — A dr&mshop-keeper is a person permitted by law or ordinance to sell intoxicating liquors in any quantity less than one gallon. No person or copartnership of persons or corporation shall, in this city, directly or indirectly, in person or by another, sell, barter or deliver, for or on his or their account, any intoxicating liquors in quantities less than one gallon, without a license first obtained therefor, according to the provisions of this article, as a keeper of a dramshop.
“Sec. 2034. Merchants Exempt from Article.— This article shall not he construed to apply to any sale of intoxicating liquors by any person under authority of ordinance regulating merchants’ licenses.
“Sec. 2035'. Amount of Licenses. — For a license as a dramshop-keeper there shall be paid the sum of two hundred and fifty dollars for city purposes (and twenty-five dollars for State purposes), and any such license shall authorize the business therein designated to be carried on at one place only, and such license shall remain in force for the period of six months from its date; provided, that the license commissioner may, with the approval of the comptroller, issue any such license for a different period than six months, if necessary, in order that the State and city licenses to the same party may expire at the same time and at the date fixed' by this article. No fee shall be charged by the license commissioner for administering oaths or taking affidavits.
“Sec. 2044. Penalty. — Whoever shall violate any of the provisions of this article shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum of not less than fifty nor more than three hundred dollars.
“Sec. 2045. Duty of License Commissioner to Enforce. — It shall be the special duty of the license commissioner to see that the provisions of this article are enforced.”

Other sections of the ordinance prescribe how licenses are to be applied for, the process through which the applications are to go, the place where the licensee is to conduct his business, that the license shall not be transferable, that no license shall issue to conduct a dramshop in certain places, how and for what causes licenses may be revoked, etc., etc., which it is not necessary to set forth in full here.

The information in question is as follows:

“State of Missouri, City of St. Louis, ss.
“City of St. Louis, February 18, A. I). 1906.
“Henry Tielkemeyer to The City of St. Louis, Dr.
“To three hundred dollars for the violation of an ordinance of said city entitled: ‘An ordinance in revision of the General Ordinances of the city of St. Louis.’ Being Ordinance No. 19991, Chapter 31, Article 4, Sections 2030-2044. Approved April 3, 1900.
“In this to-wit: In the city of St. Louis, and State of Missouri, on the 18th day of February, 1906, said Henry Tielkemeyer did then and there sell intoxicating liquors in quantity less than one gallon, without first having obtained a license so to do, to-wit: second floor 1312 Franklin avenue, contrary to the ordinance in such cases made and provided.”

I. Of that information the appellant says it is defective because, he says, it does not state the nature of the charges against him in language sufficiently specific to bar another prosecution for the same act, that is, whereas the ordinance prohibits any person from directly or indirectly, in person or by another, selling, etc., for or on his or their account any intoxicating liquors, etc., yet the information does not say whether this defendant, in doing the act specified, was acting in his own behalf or as agent for another.

So much of the language of the ordinance as refers to the doing of the forbidden act by an agent was designed to reach a person, firm or corporation who would not commit the act in person but through an agent. In such case both principal and agent would be guilty of violation of the law, the principal because he did it by his agent, the agent because he himself did it. Perhaps if it were intended to charge the principal with violating the law by the hand of his agent, it would be necessary to so specify in the information, but when it is charged, that the defendant himself did the act it is sufficiently specific and it is immaterial whether he was acting on his own account oí for his employer. No master can authorize his servant to violate the law, and no servant can excuse his unlawful act by saying that he was acting under the order or permission of his master. For example if an information were .lodged in the police court against the National Athletic Club', charging that corporation with violating this ordinance, it would probably be necessary to state by what agent the act was done, so as to distinguish it from another act of the same kind on the same day committed by another agent. But when the charge is that the man himself did the act it is- immaterial whether he was acting for his own profit or that of another. This information is sufficiently specific to bar another prosecution against this defendant for the same act.

II. Section 2030 of the ordinance, as we have seen, declares that no person, copartnership or corporation shall sell intoxicating liquors in less quantity than one gallon without a license “first obtained therefor according to the provisions of this article,” then another section of the same article, section 2034 says: “This article shall not be construed to apply to any sale of intoxicating liquors by any person under authority of ordinance regulating merchants ’ licenses. ’ ’

Appellant contends that this information is defective because it does not state that in the selling of the liquor he was not acting under authority • of the ordinance regulating merchants’ licenses, and to support that contention he cites Tarkio v. Loyd, 109 Mo. App. 171. In that case the ordinance, in defining the act forbidden, made certain exceptions, and it contained a proviso that it should not apply to persons of a certain class. The exceptions and the qualifying words of the proviso were a part of the definition of the act forbidden and, therefore, the doing of the thing forbidden could not be charged in the language of the ordinance without specifying the exceptions and the .qualifying terms of the proviso with negative averments. The law was correctly applied to the facts of that case. But in the case before us the definition of the act forbidden by the ordinance is complete in section 2030 and there are no words of exception contained therein; the thing forbidden is the selling of intoxicating liquors in quantities less than one gallon, without a license “first obtained therefor, according to the provisions of this article.” In a subsequent section, section 2034, it is ordained that “this article shall not be construed to apply to any sale of intoxicating liquors by any person under authority of ordinance regulating merchants’ licenses.” That section does not in terms except from the operation of section 2030 alone, persons acting under authority of the ordinance regulating merchants ’ licenses, but it says that the provisions of that article embracing not only section 2030 but the whole article, sections 2030 to 2044, are not to be construed as applying to the sale of intoxicating liquors by persons acting under the authority of the ordinance regulating merchants’ licenses. If section '2030 stood alone it would probably have never occurred to the framers of the ordinance, that it was necessary to say that it should not be construed to apply to the sale of intoxicating liquors by persons under authority of the ordinance regulating merchants’ licenses, because section 2030 specifically refers "only to the sale of intoxicating liquors without a license ‘ ‘ according to the provisions of this article, as a keeper of a dramshop.” But there are many other sections in that article some of which the framers of the ordinance might have thought were liable to be misconstrued as applying to persons acting under authority of the other ordinance and for that reason section 2034 was inserted in the ordinance to avoid misconstruction. For example this article prescribes how the license shall be procured, regulations of the business to be conducted under it, restrictions, etc., which were not intended to apply to the business to be conducted by persons acting under the ordinance regulating merchants’ licenses.

We recognize the rule of law contended for by appellant that when an ordinance creating and defining an offense sets forth an exception thereto, the information must negative the exception, but there is nothing in this ordinance to which that rule can be applied. In State v. Bockstruck, 136 Mo. 335, the court said: “If the ingredients constituting the offense are capable of exact definition without reference to the exception or proviso, there such reference may with safety be omitted, since such matter contained in the exception, etc., is not descriptive of the offense, but only matter of defense to be brought forward by the accused.” The rule as there stated has been approved and followed in State v. Handler, 178 Mo. 38; State v. Snyder, 182 Mo. 499. We hold that this information states the case sufficiently under the ordinance.

ni. It is insisted by appellant that the city ordinance in question is void because inconsistent with the State statute on the same subject.

The city of St. Louis has express authority under its charter “to license, tax and regulate . . . saloons, beer houses, tippling houses, dramshops and gift enterprises.” [Art. 3, sec. 26, clause 5.]

The State, however, has 'the sovereign power to regulate those matters and its authority being paramount, it follows that a city ordinance is not valid if it is in conflict with the law of the State on the same subject. Appellant contends that the ordinance under which he was convicted is in conflict with the statute law of the State in several particulars, which will be hereinafter discussed.

When we are considering the question of the validity of this ordinance in the light of the State statute we must keep in mind the essential difference between the two acts. The State has authority to declare an act to be a crime, the city has no such authority.

In City of Kansas v. Clark, 68 Mo. 588, it was held that a prosecution under a city ordinance for keeping a gambling table contrary to the ordinance was not a prosecution for a crime, but a civil suit to recover a penalty, the court saying: “Nor do we regard the violation of the ordinance under consideration as a crime, since *a crime ... is an act committed in violation of a public law’ (4 Black., Com., 5); a law coextensive with the boundaries of the State which enacts it. Such a definition is obviously inapplicable to a mere local law or ordinance, passed in pursuance of, and in subordination to, the general or public law, for the promotion and preservation of peace and good order in a particular locality, and enforced by the collection of a pecuniary penalty.” That language was quoted and followed as the correct rule of law in State v. Muir, 164 Mo. 610, in which it was held that a conviction under a city ordinance against gaming was not a bar to a subsequent prosecution for the same act under the State statute; in that case the court said that the prosecution under the city ordinance was a civil action, and quoted Cooley’s Const. Lim. (6 Ed.), p. 239, to sustain the doctrine. In Canton v. McDaniel, 188 Mo. 207, l. c. 228, the converse of the proposition was also held, that is, that an acquittal in a prosecution under the State statute was not a bar to a prosecution to recover the penalty prescribed in a city ordinance for the same act. In City of St. Louis v. DeLassus, 205 Mo. 578, it was again said that a prosecution under a city ordinance to recover a. penalty was a civil action, and that an ordinance was not invalid because it forbade and imposed a penalty for an act which the State statute declared to be a crime and for which it prescribed a penalty, and also that the ordinance was not invalid because it imposed1 a higher pecuniary penalty for the offense than that imposed by the statute. In saying that a prosecution under an ordinance of this kind is a civil action the writer of this opinion is not expressing his own views on the subject, but is only saying that such is the law as it has been pronounced by this court and followed for many years;

Section 6258, Revised Statutes 1899', is: “Any municipal corporation in this State, whether under general or special charter, and having authority to pass ordinances regulating subjects, matters and things upon which there is a general law of the State, unless otherwise prescribed or authorized by some special provision of its charter, shall confine and restrict its jurisdiction and the passage of its ordinances to and in conformity with the State law upon the same subject.”

There is nothing in any of the cases above cited that is in conflict with the requirements of that section. The city cannot forbid that which the State expressly authorizes. Section 8861 expressly excepted from the class of persons denominated peddlers persons engaged in selling “agricultural and horticultural products, including milk, butter, eggs and cheese, ’ ’ and by force of that statute it was held in St. Louis v. Meyer, 185 Mo. 583, to which we are referred by appellant, that a city ordinance which essayed to include such persons in that class was to that extent invalid. The city cannot call one a peddler and render him amenable to a penalty as a peddler whom the State has said is not a peddler. That is the point decided in that case and, on the same principle, we may now say that the city cannot call him a dramshop-keeper and render him amenable as such whom the State has said is not a dramshop-keeper, but that principle will not avail the appellant here because the city has not by its ordinance denounced as a dramshop-keeper any one whom the State has said is not a dramshop-keeper. The ordinance in question embraces within its terms, and it subjects to its penalty, no one who is not embraced within the terms of the statute and subject to’ its penalty, but the statute embraces a larger class of persons than does the ordinance. One is liable under the ordinance if without license he sells intoxicating liquors in less quantity than one gallon; he is liable under the statute if without license he sells any quantity less than three gallons. If, therefore, he sells less than one gallon without a license he is subject to prosecution under the ordinance and under the statute also, but if he sells two gallons he is not within the displeasure of the ordinance, but is under the condemnation of the statute; the statute goes farther than the ordinance.

Section 2990; Revised Statutes 1899, Ann. Stat., 1906, p. 1714, defines the terms dramshop-keeper as follows: “A dramshop-keeper is a person permitted by law, being licensed according to the provisions of this chapter, to sell intoxicating liquors in any quantity, either at retail or in the original package, not exceeding ten gallons.” Then section 2991 says: “No person shall, directly or indirectly, sell intoxicating liquors in any quantity less than three gallons, either at retail or in the original package, without taking' out a license as a dramshop-keeper. ’ ’ In the ordinance the definition of the term dramshop-keeper is “a per son permitted by law or ordinance to sell intoxicating liquors in any quantity less than one gallon,” and it goes on to forbid any one selling intoxicating liquors in less quantity than one gallon without a license under the ordinance.

Appellant contends that the city ordinance is void because its definition of the term dramshop-keeper is different from that given in the statute. There is some difference but for the purposes of this case the difference is immaterial.

Where a statute treats of a particular subject by name and gives a definition of the name used it means that when and wherever that name is nsed in that statute it is used in the sense of that definition.

The statute does not intend to invade the province of the lexicographers hut only to specify the sense in which it makes use of the term. The word dramshop or dramshop-keeper has a wider meaning in its general significance than that given in the statute, hut the statute, by its definition, restricts the meaning of the word to its own purposes. In the chapter of the Revised Statutes and in the article in the revised ordinances on the subject of dramshops there are many sections, besides those forbidding the sale and imposing the penalty, in which the word dramshop-keeper is used and it is used more conveniently because of the definition given. Therefore we conclude that the word dramshop-keeper as defined by the statute means that for the purposes of that statute a person must come within that definition in order .that the provisions of the statute may apply to him, and so it is of the ordinance. Unless in the terms of this ordinance there is something that renders a person liable to a penalty for doing what he is authorized by the law of the State to do the ordinance is not in conflict with the statute. There is nothing in the ordinance now in question that infringes on any right the appellant has under the statute; the ordinance is within the statute. Therefore, although the definition of the term dramshop-keeper in the ordinance is different from that in the statute, yet the difference is immaterial, and although the ordinance does not reach persons selling intoxicating liquors in quantities more than one gallon, or in original packages as the statute does, yet it cannot be condemned because it does not go as far as it might lawfully go under the statute.

IV. There is, however, one point in the ordinance which is in conflict with the statute and it is a material point.

The language of the ordinance, in section 2030, under which the appellant is charged, is that no person shall sell “any intoxicating liquors in quantities less than one gallon, without a license first obtained therefor, according to the provisions of this article, as a keeper of a dramshop.” Then follows section 2031 which provides for the issuance of a license by the city license commissioner, and prescribes how th!e party desiring the license is to proceed to obtain it, the channels the application is to go through, etc. But all of that was superseded by the Act of 1893, amended by the Act of 1905, now sections 3019 to 3026, Revised Statutes 1899, Ann. Stat. 1906, p. 1730. By those sections the office of - excise commissioner is created for cities of 300,000 inhabitants or over; to the excise commissioner is given the exclusive authority to grant dramshop licenses and- the process of obtaining such a license is prescribed by the statute, which process is different from that prescribed in the ordinance. The ordinance was enacted several years before the statute, or doubtless its terms would have conformed more closely to those of the statute. At the date on which the appellant is charged with selling intoxicating liquors in less quantity than one gallon without a license, the only authority the city had for proceeding against him was under that ordinance, and the only thing the ordinance forbade was selling the liquor without' a license obtained therefor according to the provisions of the ordinance itself. By the terms of the ordinance the appellant would be guilty if he did the act specified, even though he had at the time a city license issued by the excise commissioner. Although in the information it is charged that he did the act ‘“without first having obtained a license so to do,” omitting to say, in the language of section 2030 of the ordinance, ‘ ‘ according to the provisions of this article,” yet the ordinance is referred to by number, chapter, article and sections, and it means that the man is guilty of violating the ordinance because he did the act without having first obtained a license from the city license commissioner according to the terms of- section 2031. Not only is that the correct interpretation of the information, but there is no authority for the city to prosecute in its own behalf a person for selling intoxicating liquors in less quantity than one gallon unless it he under the terms of section 2030, because although the city has authority under its charter to pass an ordinance forbidding the sale of intoxicating liquors in less quantities than one gallon without having first obtained a license according to the statute of the State, yet it has not, at least it had not at the date of appellant’s alleged offense, done so. At the date when the ordinance was enacted it meant to forbid the sale of intoxicating liquors in less quantities than one gallon without first obtaining a license therefor from the city license commissioner, and there has been no change in it in that respect since its enactment. It means now only what it meant then.

It is argued in behalf of the city, on the authority of State ex rel. v. Bell, 119 Mo. 70, that all the provisions of the city ordinance remain in force except such as are repealed by the statute. That may be so, but section 2031 of the ordinance is entirely in conflict with the statute and therefore cannot stand; and as section 2030 only refers to persons who have not complied with the requirements of section 2031 it means nothing. The State statute was not intended to amend the ordinance; it was intended to supersede and render null all of the ordinance in conflict with it, and leave it to the city to amend its ordinance to conform to the statute.

The information is expressed in words to indicate that it was designed to avoid following the language of the ordinance in reference to the source of the license required; it used the general term “license” to cover a license that might be issued by the excise commissioner. But in drawing the information the only authority the pleader had was the ordinance and he could not by a skilful use of words get beyond it, or charge as an offense an act that the ordinance itself did not forbid.

It is also argued that repeals by implication are not favored and that is so; but that rule must yield before a necessary implication. Besides the General Assembly in framing a statute is never expected to expressly refer to a city ordinance.

For the reason above given we hold that the information in this case charges no offense or states no facts that would render the appellant liable to the city as for a violation of the ordinance.

The judgment is reversed and the defendant is discharged.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    CITY OF ST. LOUIS v. JOHN GLUM, Appellant.
    Division One,
    March 1, 1910.
    Appeal from St. Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge.
    Reversed.

      Chas. H. Brock and Simon S. Bass for appellant.

      L. E. Walther and B. H. Charles for respondent.
   VALLIANT, J.

The facts of this case are substantially like those in the case of The City of St. Louis v. Tielkemeyer, just decided, and reported at page 130 of this report; and, therefore, for the reason stated in the opinion in that case the judgment is reversed and the defendant is discharged.

All concur.


author: GRAVES, J.

text:
    CITY OF ST. LOUIS v. WARREN COMMISSION AND INVESTMENT COMPANY, Appellant.
    Divison One,
    March 1, 1910.
    1. ORDINANCE: Fire Doors: Applicability to Existing Buildings. Section 101 of the Building Code of St. Louis, requiring every building more than three stories in height, above the basement, occupied for manufacturing or mercantile purposes, to have fire doors, blinds or shutters hung at every window above the first story, does not on its face apply only to buildings subsequently erected. Because other sections of the ordinance of which it is a part apply only to such buildings, while others apply to existing buildings, it does not follow that this section, which refers to a certain subject-matter within itself and speaks for itself irrespective of other sections, applies solely to buildings erected ' after its enactment. It applies to all buildings of the character mentioned.
    2. -: -: -: Occupancy. The said ordinance does not have reference so much to the time the buildings were erected as it does to their occupancy. It applies to only such four-story buildings as are occupied for particular purposes, and are located within forty feet of another building. Future buildings four stories high may be built, but if not used for manufacturing or mercantile purposes, the ordinance does not apply; or if so used, and yet were forty feet or more away from another building, the ordinance would not apply until such time as another building were erected within forty feet of the four-story building so used.
    3. -: -: -: Validity. The city has power to enact an ordinance which requires the owner of an existing building to provide fire doors or shutters to windows therein, if such ordinance is reasonable. It is a part of the city’s police powers. Protection against ravages of fire may be made, in the interest of public safety, to apply to existing buildings, as well . as to buildings subsequently erected.
    4. -: -: -: -: Power of City to Enact. The general welfare clauses of the charter of St. Louis (clauses 12 and 14, sec. 26, art. 3) authorize the municipal assembly to enact a reasonable ordinance to prevent the spread of fires in large buildings.
    5. -: -: Reasonableness: Judicial Notice: Pleading. It is not necessary for the courts to take judicial notice that buildings occupied for the purposes mentioned in an ordinance are sources of danger from fire, where the municipal assembly has passed upon the necessity for the ordinance, and its reasonableness is not challenged in either the pleadings or instructions. The reasonableness of the ordinance which defendant has been convicted of violating is not for consideration unless the point is made issuable by the pleadings and proof.
    6. -: Title: Germane. A title to an ordinance which, among other things, declares its purpose is “the securing of buildings of said city” is sufficiently comprehensive to include a section requiring large manufacturing or mercantile buildings to be provided with fire doors or shutters at windows.
    Appeal from St. Louis Court, of Criminal Correction. —Hon. Hiram N. Moore, Judge.
    Affirmed.

      Truman P. Young for appellant.
    (1) The ordinance numbered 22022, under which this prosecution was brought, applies only to buildings to be erected in the future. This appears from an inspection of the ordinance itself. See also: De Leone v. Long Branch, 55 N. J. L. 108; Buffalo v. Chadeayne, 135 N. Y. 163; Regina v. Howard, 4 Ont. 377, 4 Am. and Eng. Corp. Cases, 377; Glenn v. Baltimore, 5 Gill and J. 430; Commonwealth v. Alger, 7 Cush. 103; Allison v. Richmond, 51 Mo. App. 136; State v. Tenant, 110 N. C. 618; Louisville v. Webster, 108 Ill. 414; Wadleigh v. Gilman, 12 Me. 40’3; Klinger v. Bickel, 117 Pa. St. 339. (2) The power to compel a remodeling of existing buildings is not within the charter powers of the city. A municipal corporation can exercise the following powers and no others: First, those expressly granted; second, those necessarily implied in or incident to the powers granted; third, those essential to the declared objects and purposes of the corporation — not simply convenient but indispensable. St. .Louis v. Kaine, 180 Mo. 309; St. Louis v. Telephone Company, 96 Mo. 628; Joplin v. Leckie, 78 Mo. App. 13; City, to use, v. Eddy, 123 Mo. 546; Kansas City v. Swope, 79' Mo. 446; Knapp v. Kansas City, 48 Mo. App. 485; City v. Laughlin, 49 Mo. 559; Butler v. Milwaukee, 15 Wis. 493; Regina v. Howard, 4 Ont. 377; Buffalo v. Chadeayne, 134 N. Y. 166; Nekton v. Belger, 143 Mass. 598; Allison v. Richmond, 51 Mo. App. 133; Pye v. Peterson, 45 Tex. 312; Carpenter v. Realty Co., 103 Mo. App. 480; Bostwick v. Sams, 59 L. R. A. 282; Wygant v. McLaughlin, ’54 L. R. A. 636; Grossman v. Oakland, 36 L. R. A. 593; Evansville v. Miller, 38 L. R. A. 161. (3) The ordinance if meant to apply to existing buildings is invalid as applied to such buildings because such provisions are not within the scope of the title of the ordinance. Charter, art. 3, sec. 13; State v. St. Louis, 161 Mo. 371. (4) Ordinance 18964 and section 193 of the municipal code were repealed by ordinance 22022 under which this prosecution was brought. They were therefore immaterial and should have been excluded from the evidence. State v. Roller, 77 Mo. 120; Yall v. Gillham, 187 Mo. 393; State v. Hickman, 84 Mo. 79; Kern v. Legion of Honor, 167 Mo. 483; Delaney v. Police Court, 167 Mo. 676; Berkshire v. Railroad, 28 Mo. App. 228; Crumley v. Railroad, 32 Mo. App. 505; Gumm v. Jones, 115 Mo. App. 597.

      L. E. Walther and C. P. Williams for respondent.
    (1) The authorities cited by appellant under subdivision one of his brief are not in point,- and do not "bear upon the proposition involved. The true reading of the ordinance is to make it apply to all buildings, whenever erected, that are used for mercantile or manufacturing purposes. (2) The power to enact, 'is to be 'found in the charter, art. 3, sec. 26, clauses 12 and 14. The enactment is plainly justifiable as a police measure. (3) The title of the ordinance is sufficient.
   GRAVES, J.

This cause originated in the first district of the police court of the city of St. Louis by a statement filed by the city attorney of said city, in which it was charged that the defendant had violated sections 101, 182 and 184 of ordinance No. 22022, approved April 7, 1905. Upon being convicted the defendant appealed to the St. Louis Court of Criminal Correction, wherein he was again convicted, and fined the sum of $25, from which judgment he has appealed to this court.

Defendant is the owner and occupant of a certain building four stories high and used for manufacturing and mercantile purposes. This building was erected prior to 1865. There is no question that the building had not been equipped with the things required by section 101 of ordinance No. 22022, supra. This section is a part of the Building Code of the city of St. Louis and reads:

‘ ‘ Every building more than three stories in height, above the basement, occupied for manufacturing or mercantile purposes, shall have fire doors, blinds or shutters hung to iron hinge eyes or pin blocks built into the wall on every window and every opening above the first story thereof, excepting on openings of buildings fronting on streets or vacant lots which are more than forty feet in width; said doors, shutters or blinds shall be standard1; constructed of pine or other soft wood of two thicknesses of matched boards at right angles with each other and securely fastened and covered with tin or galvanized iron on both sides and edges, with folding lapped joints; the nails for fastening the same shall be driven inside the lap. The hinges and bolts or latches shall be secured or fastened to the door or shutter by bolting after the same has been covered, and such door or shutter shall be hung independent of the woodwork of the windows and doors and to be of sufficient area to lap two inches all around such opening. Sliding shutters of the above construction may be used instead of hinged shutters, of such mechanism as may be approved by the commissioner of public buildings. They shall in any case comply with all requirements provided for standard hinged fire shutters. In lieu of standard fire doors and shutters wherever mentioned in this ordinance, approved metal frames of adequate strength, with wire glass panels in same may be used. It shall be the duty of the commissioner of public buildings to require fire doors, blinds or shutters, as provided in this section, to be placed on the openings of buildings in cases where lots which were vacant when the buildings were constructed are built upon, so that said openings come within forty feet from any building.”

The case was tried upon an agreed statement of facts, which is not necessary to set out here, for the reason that the defendant is guilty, if the ordinance is valid, and if the ordinance applies to the building in question under the facts. The contention of the defendant is three-fold, and is well stated in the brief thus:

“The evidence showed that the building in question was erected in Saint Louis prior to 1865. Ordinance No. 22022, under which this prosecution was brought, was passed on April 7,190’5. It was contended by the defendant at the trial that this ordinance applied only to buildings erected after its passage. In the first place, that the ordinance oh its face applied only to such buildings; in the second place, that the city has no powers under its charter to pass such an ordinance and make it applicable to buildings already constructed, and in the third place, that the title of the ordinance refers only to buildings to be erected in the future, with certain exceptions not applicable here.”

Of these questions in their order.

I. The jjoint first urged is that upon its face the ordinance in question does hot apply to buildings theretofore erected. Ordinance No. 22022 is compo'sed of one hundred and ninety-seven sections, referring practically to as many different things. It is the Building Code of the city of St. Louis. Many sections out of the number contained in the ordinance clearly refer to buildings to be constructed in the future, and many more refer to buildings theretofore constructed. It would be an unwarranted task to set out and describe the different sections of these two classes. The question is what does this section 101 mean? To what buildings does it apply? It refers to a certain subject-matter within itself and speaks for itself irrespective of other sections of the Building Code. But little light can be gathered by comparing its phraseology with that of other sections clearly pointing to buildings to be erected in the future, as learned counsel have elaborately and painstakingly done. Whether this particular section refers to prior constructed buildings must be gathered largely from its own context. We are impressed that it applies to all buildings whether erected prior or subsequent to the passage of such ordinance, if the size of the building and the occupancy of the building brings it within the purview of the ordinance. It will be observed that the section, under review does not apply to all four-story buildings, but only to such four-story buildings as are occupied for particular purposes, and as are located within forty feet of another building. Future buildings four stories in height may be built, but if not used for mercantile or manufacturing purposes the ordinance would, not apply. Or if they were so used, and yet were forty feet or more away from another building, the ordinance will not apply, until such time as another building was erected so as to be within forty feet of the four-story building thus used for mercantile or manufacturing purposes. This ordinance does not therefore apply so much to the time the building was erected as it does to the occupancy of the building. The present building, now under discussion, may by reason of its occupancy be subject to the provisions of the ordinance this year, but next year the character of its occupancy might be so changed that the ordinance would not apply. The ordinance therefore strikes at the danger of fire by reason of the particular occupancy of such a building, rather than at the date of its erection. To guard against fires and the destruction of property is one of the police powers of a city. We see no reason why a city cannot pass an ordinance by which it shall say to the citizen, If you own a building of a certain character, and use it for certain purposes, which purpose would indicate that damaging fires might result, without such precautions as are prescribed by this ordinance, then you must take such precautions in order to protect both life and property. Such an ordinance is a reasonable police regulation, well calculated to promote the general welfare of the citizens. We conclude therefore that this ordinance refers more to the question of how the building is occupied than to the date of its erection. This occupancy may change from year to year. If the occupancy be a hazardous one, the city can act. The ordinance in our judgment applies to all four-story buildings occupied as this building was occupied. It applies to such as were so occupied at the date of its passage, as well as to such as may be thereafter so occupied, irrespective of the date of construction. This point is therefore ruled against the defendant.

II. The second question, as indicated by the quotation from appellant’s brief, is that if the ordinance upon its face shows that it was intended to apply to buildings then constructed, yet the city had no power to pass such an ordinance. In the preceding paragraph we have indicated that in our judgment the ordinance upon its face shows a legislative intent to apply the ordinance to all four-story buildings used for the purposes mentioned. We have likewise practically indicated that such an ordinance is authorized under the police power of the city. The safety of life and property as against the ravages of fire has always been a live question in municipalities. The city government has to deal with the question not from the standpoint of the individual owner of a particular property, but from the standpoint of the general welfare of the city and its citizenship. Ordinarily, the citizen has the right to use that which is his own, in such a manner as he pleases, but if the use thereof seriously affects the general public, society and the laws thereof demand a surrender of a part of the individual rights for the general welfare of the public, for such is the basis of all government. Absolute individual rights is anarchy. So that we say that in cities fire limits may be established, and thereafter certain character of buildings must be erected — a limitation upon the broad individual rights of the citizen to use his own property as he pleases. So, too, we say to the owner of property in a municipality, “Many things must be done by you to the end that the general welfare may be promoted. ’ ’ An enumeration would be superfluous. Appellant, however, asks that we point to charter power for the ordinance in question. If it be necessary to go further than the police power under the general welfare clause, we think that such power is found in clause 12, of section 26, article 3, óf the St. Louis charter. So far as'applicable, this clause reads:

‘ ‘ The Assembly through its officers or agents, may at all reasonable times, enter into and examine all dwellings, lots, yards, enclosures and buildings of every description, to ascertain their condition for health, cleanliness and safety; take down and remove buildings, walls, or superstructures that are or may become dangerous, or require owners to remove or put them in a safe and secure condition, at their own expense.” In the same clause we find further the following language: “. . . shall provide for the safe construction, inspection’ and repairs of all private or public buildings within the city.” The general welfare clause, which is numbered fourteen, reads thus: “Finally, to pass all such ordinances, not inconsistent with the provisions of this charter, or the laws of the State, as may be expedient, in maintaining the peace, good government, health and welfare of the city, its trade, commerce and manufactures, and to enforce the same by fines and penalties, not exceeding five hundred dollars, and by forfeitures, not exceeding one thousand dollars;. to purchase, rent, or lease, within the limits of the city or elsewhere, any real or personal property, and to control, manage, sell or lease, or otherwise dispose of the same, for such purposes and considerations as they may deem proper for the public welfare of the city, and to provide for the enumeration of the inhabitants of the city.”

That buildings occupied for the purposes mentioned in the ordinance are sources of danger from fire might be judicially noticed. That fires from adjoining or near-by buildings'might injure both property and life in such buildings we might likewise judicially know. That the inflammable material contained in such buildings would render the spread of fire more hazardous, we would likewise know. This, however, we do not have to know in this case, because the legislative branch of the city government which has the first right to pass upon the necessity of the ordinance, has passed upon it, and in the record here, it is not challenged on the ground of unreasonableness. The challenges below were by instructions asked and refused, neither of which raises the question of the unreasonableness of the ordinance. Without such pleading or proof that is not a question which concerns us now. [St. Louis v. St. Louis Theatre Co., 202 Mo. 690.]

We think there was a right upon the part of the city to pass this ordinance and further to make it apply ■to buildings of the character named, so far as this record shows.

TTT, Third, and lastly, it is contended that the title of the hill refers only to buildings to be erected in the future, with certain exceptions, of which this is not one, and therefore this portion of the bill is void. The title to the bill out of which grew ordinance No. 22022, reads:

“An ordinance to revise the building code of the city of St. Louis, being article 4, chapter 1 of the municipal code, by repealing sections 38 to 253, inclusive, of said article, and enacting in lieu thereof a new ordinance governing the construction and erection,' reconstruction, alteration, repair, remodeling, changing, moving, removal, and securing of buildings in said city, and providing for the safety of buildings when so erected; also regulating the use of and providing for the safety of the public in theatres, opera houses and other buildings devoted to public amusement.”

We cannot lend our consent to this contention. The subject-matter of section 101 of the bill is germane to the subjects mentioned' in the title above quoted. The title speaks of the enactment of a new ordinance, and in so speaking says, * and enacting in lieu thereof a new ordinance governing the construction and erection, reconstruction, alteration, repair, remodeling, changing, moving, removal and securing of buildings in said city.”

We. have italicized one clause of this title ‘which clearly authorizes the said section 101. It will not do to say that' the portion italicized and reading “and securing of buildings in said city,” refers solely to buildings thereafter to be constructed. Nor will it do to say that it precludes reasonable legislation as to tbe occupancy and use of buildings theretofore constructed. These clauses of tbe title are but indexes to tbe bill, and all things germane thereto may follow in tbe bill itself. We are not impressed with tbe contention of tbe appellant. These are tbe only questions raised below, and of course tbe only questions to be considered here.

From this it follows that tbe judgment below is right and should be and is affirmed.

All concur.


author: WOODSON, J.

text:
    THE STATE ex rel. RICE, Collector, Appellant, v. C. H. HARRISON.
    Division One,
    March 1, 1910.
    Taxation: Assessment: By Board of Equalization: Notice. Where the assessor did not send a personal assessment lis.t to the property-owner until after he had turned over his books to the county court on October 1, but did thereafter, and the property-owner returned it on or about December 31, listing the value of money and notes at $27,500, and thereafter the county board assessed the property at the same valuation, it was not necessary for the board or county clerk to give notice to the property-owner. The Act of 1903 requires notice only in case the board adds omitted property, and under the facts the property was not omitted in the sense used in the statute, but the board simply assessed the property given in by the property-owner at the valuation he placed upon it himself.
    Appeal from Clinton Circuit Court. — Ho». Alonzo D. Burnes, Judge.
    Reversed and remanded.

      E. C. Hall for appellant.
    (1) Tbe assessment list is tbe basis of taxation of personal property and after being delivered by tbe person in charge of the property, to the assessor and by him filed with the county clerk, becomes a record which cannot be changed or amended except by order of the county court. In this case the list was regular in all respects and contained a proper schedule of the property at the valuation required by law; was signed *and sworn to, and its correctness is not denied. R. S. 1899, secs. 9144 and 9147; Lenox v. Harrison, 88 Mo. 496; State ex rel. v. Bank, 120 Mo. 168; State ex rel. v. Seahorn, 139 Mo. 610; State ex rel. v. Carr, 178 Mo. 229. (2) The assessment list so made was filed 'with the county clerk, put upon the assessor’s book and copied on the tax book with the taxes levied, extended thereon as upon other property in said book, and the manner in which it was carried to those books could not injure the owner of the property, or in anywise increase his burden or do other than he must have expected would be done when he returned the list. That the list was put on the assessor’s book in a manner different from some other lists amounts to nothing more than an informality, and such informality does not avoid the assessment. R. S. 1899, secs. 9179', 9202, 9329; Railroad v. Gracy, 126 Mo. 483; Cooley on Tax. (2 Ed.), pp. 283-4-5, 305; State ex rel. v. Bank, 120 Mo. 161; Welty on Assessments, secs. 232, 236; State ex rel. v. Phillips, 137 Mo. 259; Bird v. Sellers, 113 Mo. 592; State, ex rel. v. Hurt, 113 Mo. 96; Boyd v. Ellis, 107 Mo. 394; Black v. McGonigle, 103 Mo. 192. (3) The county board of equalization had jurisdiction both of the subject-matter and of the person in this case and had the right to order the list entered upon the assessor’s book, and to “tax the same as similar property of other persons is taxed.” Laws 1903, p. 253; R. S. 1899, sec. 9131; State ex rel. v. Baker, 170 Mo. 389; State ex rel. v. Board, 108 Mo. 235. . (4) No notice was necessary to he given defendant in this case because the entry made of the property for taxation was identical with the voluntary list offered by defendant for assessment. (5) While the assessor did not file a complaint against the defendant for failure to give a correct list, he did file the list as given and the board of equalization had the right and power to cause the same to be entered on.the assessor’s book. Laws 1903, p. 253; State ex rel. v. Carr, 178 Mo. 234; State ex rel. v. Seahorn, 139 Mo. 611.

      Mytton & Parkinson for respondent.
    (1) The attempted and pretended assessment made by the order of the board of equalization at its meeting on the 13th day of April, 1905, adding property omitted by the assessor from his book, without causing a notice to be served upon the owner giving him an opportunity to appear before said board and shoV cause why said assessment should not be made, is null and void. Laws 1903, p. 253; Cooley on Taxation, p. 267; 8 Cyclopedia Law & Proc., p. 1134, note 89. (2) There being no notice given to the owner of the property added by the board of equalization to the assessor’s book by its order of April 13, 1905, and no appearance at any meeting of the board of equalization by the owner of the property attempted and pretended to be added to the assessor’s book by this order, said order and pretended assessment are null and of no effect. Laws 1903, p. 253; State ex rel. v. Baker, 170 Mo. 389; State ex rel. v. Board, 108 Mo. 235. (3) Except in pursuance to statutory authority no assessment could be made by the county board of equalization. State ex rel. v. Cunningham, 153 Mo. 642; Judson on Taxation, 211, 212; Railroad v. Apperson, 97 Mo. 300.
   WOODSON, J.

The relator, as collector of revenue of Clinton county, instituted this suit in the circuit court of that county, against the defendant, as curator of the estate of Walter, Virginia and Eunice de Steiguer to recover back taxes due for State, county and school purposes for the year 1905, aggregating $418. A trial was had before the court, which resulted in a judgment for the defendant; and the relator duly appealed the cause to this court.

The facts are brief and are practically undisputed. . They are as follows:

Defendant for some cause, not disclosed by the record, neglected to make out and deliver to the county assessor a personal assessment list, as required by law, of the personal property, money and effects in his hands and under his control as the curator of said estates, on the first day of June, 1904. Sometime after October of that year, the collector notified him of that fact, and inclosed to him one of .the ordinary blank assessment lists, with a request that he fill out and return same to the assessor’s office, at Plattsburg. On or about December 31, 1904, the defendant returned to the assessor, at Plattsburg, by mail, the assessment list before mentioned, wherein he placed the value of the property in his hands at the sum of $27,500. This list had been lost and could not be produced at the trial. He testified, however, that he did not place those figures in the column headed “money and notes,” but simply made a statement upon the blank list, showing the balance which was charged against him as such curator of said estates on an accounting as of June 1, 1904. This, however, is positively denied by Mr. McWilliams, the county clerk, a witness for defendant, who entered the list in the tax books. He testified that the return list “shows exactly what the books show.”

This transaction is best explained in the language of Mr. McWilliams:

Cross-examination by Mr. E. C. Hall:

• “Q. Mr. McWilliams, you were the clerk of the board of equalization at the time this record was made? A. Yes, sir; secretary of the board. Q. Do you know the facts upon which this record was made? A. Tes, sir. Q. State whether or not there was a list of the property, assessment list, made out by Mr. Harrison, filed before the hoard at that time? A. There was. Q. Calling for the amount of $27,500'? A. Yes, sir. Q. And that, among other lists, was a lot of lists made out by the individuals themselves and sent in too late? A. Sent in after the county assessor turned his books over, but before the board of equalization— Q. Tell the court how that occurred, with regard to the curator or guardian. A. It occurred in this way, as it occurs every year: The county assessor turned his books over in October. After October, after the county assessor turned his books over, quite a number of lists were omitted from the books as the county court approved it. They gave notice; had some blank lists sent to the ones who omitted to give in their assessment between October and April. There was some thirty lists in that call. They were sent to the county assessor and he sent them to the county court and they were put on there by the county court in April. That was the way the lists were put on. Q. Have you made search for that list of Mr. Harrison? A. Well, while I was clerk, Mr. Harrison asked for the lists two or three times. I always gave him the lists called for, as well as I know. In 'January, I believe it was the first Monday or Tuesday in January, we looked for the list at that time and didn’t find it. I don’t know, it may be misplaced. I thought may be the collector had it.”

It is admitted that the list cannot be produced at this time.

By witness: “I expect may be it is put in the wrong box down there.”

Redirect examination:

“Q. This list you speak of, you don’t pretend to know what it shows? A. Yes, sir; it shows exactly what the books show, because I entered it myself. It was signed by C. H. Harrison. Q. Give the wording of it? A. Well, I could not do it. It’s the regular county assessment list sent in by Mr. Harrison with the valuation in that book. I am positive of that, for the reason no list was placed on the book except the order these lists were on. Every list was signed that was there. There is no question of that. Q. Yon don’t pretend to remember what that list stated, though? A. I pretend to say it stated that amount of money in the lists belong to the heirs, money and notes. Under the head of money and notes. Q. Money and notes? A. Yes, sir. Q. You say under the head of money and notes. This list you speak of had a column ‘Money and Notes?’ A. Yes, sir; it was the usual county assessment list. Just what that recites in the record. Under the head of money and notes, ‘ $27,500. ’ Q. That was the heading on the list? A. It is in the list under that head, yes, sir. Of course three or four or five times under that. Notes secured and notes unsecured, that is, mortgages secured and mortgages unsecured, but under the head of money and notes comes that amount. Q. You don’t know when Mr. Harrison sent that list to the assessor? A. No, sir; I don’t remember the date. I sent the blanks out to those people myself. He asked me to do it. Q. Was the list by C. H. Harrison, curator, or by C. H. Harrison? A. I could not say as to that. Q. It was a list and this is a copy of it? A. That doesn’t pretend' to be a copy of the list; it simply pretends to give the amount of money. There is nothing in that list except money and notes. Q. Didn’t that list say ‘Balance due, $27,500?’ To refresh your memory? A. No, sir; I have no recollection of anything of that kind being in any list I ever saw. Q. You have no definite recollection of exactly what it did contain except you think it was money and notes? A. No, I don’t think anything about it. I know it was money and notes, because I entered the list myself and I could not make these entries except by taking tbe list to make them. There is no other way to make them. ’ ’

Thereafter the assessor turned over to the county court a number of personal assessment lists, one of which was the one in controversy. Thereafter the county board of equalization met and organized, as provided by law; and, among other things, the following proceedings were had :

On Thursday, April 13, 1905, the following entry appears on page 42 of the records of the county board of equalization of Clinton county:

“On motion the following lists which have been sent to the county assessor since he turned his books over to the county court be placed on the personal assessment book for 1905 based on the ownership of property June 1, 1904. O. H. Harrison money, notes, $27,500, and other lists.”

In pursuance of said order there was placed by the secretary of the board upon the personal assessment book of Clinton county, Missouri, for the year 1905, at page 143, the following entry:

“Lists sent to the county assessor since he turned his books over to the county court based on the ownership of property on the 1st day of June, 1904, and ordered placed on the assessment book of 1905 by the county board of equalization. C. H. Harrison, curator, township Cameron, for Walter, Eunice and Virginia de Steiguer.
State taxes .........'.............$ 46N5
County taxes .................... 96.25'
School taxes Cameron............ 275.00
Total........................$ 418.00
“Money, notes, bonds and other credits, class five, six, seven, eight, nine, $27,500.”

Thereafter in the year 1905, upon a date not shown, the following entry appears upon the tax books of Clinton county, Missouri, for the year 1905:

“Lists sent to the county assessor since he turned his books over to the county court based on the ownership of property on the 1st day of June, 1904, and ordered placed on the assessment book for 1905 by the county board of equalization; C. H. Harrison, curator, township Cameron.
Money, notes, bonds and other credits.....$27,500.00
State tax 17 cents per hundred dollars..... 46.75
County taxes............................ 96.25
School taxes, Cameron................... 275.00
Total taxes..........................$ 418.00
“Curator for Walter de Steiguer, Virginia de Steiguer and Eunice de Steiguer.”

It was admitted that there was no other assessment against Clinton H. Harrison, curator, except the one quoted.

In the year 1905 there was also entered on page 37 of the personal delinquent list for the year 1905 the following entry:

“Lists sent to the county assessor since he turned his books over to the county court based on the ownership of property on the 1st day of June, 1904, and ordered placed on the assessment book for 1905 by the county board of equalization: Harrison, C. H., curator.
Valuation.....................$ 27,500.00
State taxes..................... 46.75
County taxes................... 96.25
Cameron school taxes............ 275.00'
Total...................... 418.00.”

It is conceded that defendant was not notified of the action of the county board of equalization in ordering the estate of his wards to be taxed and placed upon the personal tax book for the year 1905; and that he did not appear before said board, nor have an opportunity to be heard in opposition to said assessment.

The record shows that the assessor had a rule of his own by which he assessed all personal property at sixty per cent of its actual value; and that he assessed all personal property in that county for that year according to that rule. But the record shows that this property was assessed at its full cash value.

I. This record discloses the fact that the defendant did not furnish to the assessor of Clinton county an assessment list of the money and notes mentioned in this suit prior to October 1, 1904, the date on which the assessor returned the taxbooks to the county court; and, consequently, it was not assessed by him, as provided for by section 9144, Revised Statutes 1899. So, it is contended that if there had been a valid assessment made of this property for the taxes sued for, it was made by the county board of equalization of Clinton county. That 'was attempted to be done, as-appears by its orders made on April 13, 1905,' before set out.

Counsel for defendant assail the validity of that assessment for the reasons: (1) that he was not notified of said assessment, as provided for by section 1 of an act approved March 27, 1903; and (2) that he had no opportunity afforded him to be heard in the premises. Consequently, they insist the assessment is null and void, because it takes his property without due process of law.

These propositions are so closely connected and intimately related to each other, we feel justified in considering all of them together, for the reason that whatever is said regarding the one will apply in a greater or less degree.to the other.

Said act reads as follows:

“Section 1. The county board of equalization at its annual meeting in each year, in addition to the powers now conferred by law, shall have authority to assess and equalize the value of any property that may have been omitted from the assessor’s books then under the examination by said board, and in case said board shall add any property, real or personal, to said assessor’s books, it shall cause notice in writing to be served upon the owner of such property, stating the kind and class of property, and the value fixed thereon by said board, and naming the time and place, not less than five days thereafter, when and where such owner may appear before said board and show cause why said assessment should not be made. At the time fixed said board shall again meet and give an opportunity to said taxpayer to be heard in regard to said assessment and may change or alter the same upon its being sho'wn by said owner that said assessment was erroneous or improperly made; otherwise, said property and the valuation, as fixed by said board, shall be extended upon the assessor’s books, as in case of other property. Said notice shall be signed by the clerk of the connty court and shall be served by the sheriff of the county, and it shall be the duty of the prosecuting attorney, when called upon by the board of equalization, to represent said county in any such proceedings. In case of the assessment of real estate belonging to non-residents, publication may be made of the additional assessment, in the same manner as publications required by law where the assessment has been increased by said board.”

As regards the reasons urged against the validity of this assessment, we are of the opinion that neither of them is sound.

The record discloses the fact that defendant had entered his appearance in the cause by filing with the assessor a list of the money and notes which were in his hands as such curator, on December 31, 1904, which he was required to do on or before that date by section 9145, Revised Statutes 1899, wherein he stated the value of said money was $27,500.

Those acts clearly give the hoard of equalization jurisdiction over the person of defendant and over the $27,500 worth of property mentioned, as is provided for by section 9145, Revised Statutes 1899, which reads as follows:

“If any person required by this chapter to list property shall be sick or absent when the assessor calls for a list of his property, the assessor shall leave at the office, the usual place of residence or business of such person, a written or printed notice, requiring such person to make out and leave at the place named by said assessor, on or before some convenient day named therein, not less than ten days nor more than twenty days from the date of such notice, a sworn statement of the property which he is required to list, and shall leave with such notice a printed or written blank for the statement required of such person. The date of leaving such notice and the name of' the person required to list the property shall be carefully noted by the assessor; and if any such person shall neglect or refuse to deliver the statement, properly made out, signed and sworn to as required, the assessor shall make the assessment, as required by this chapter; Provided, that the assessor may omit assessing the penalty in cases of neglect, where he is satisfied the same is unavoidable and not willful.”

Section one of the Act of 1903, in express words, authorizes the board of equalization “to assess and equalize the value of any property that may have been omitted from the assessor’s books then under the examination by said board.”

But it will be observed that said section one requires notice to be given to the property-owner only in those cases where the board adds other property to the assessor’s books, not placed thereon by him. That is clearly shown by the following language, taken from said section, to-wit: “and in case said board shall add any property, real or personal, to said assessor’s books, it shall cause notice in writing to be served' upon the owner of such property,” etc.

In answer to this, it might be suggested that the record in this case shows that the board of equalization did add the property in suit to the assessor’s books. Literally speaking, that is true, but, clearly, that is not the meaning in which the Legislature used the word “add” in that section of this act. This act must be construed in connection with all other statutes bearing upon the duties of the board. This is shown by the first clause of the act, where it provides that the “board of - equalization at its. annual meeting in each year, in addition to the powers now conferred by law/’ shall perform the duties, etc. That being true, we must turn to those statutes and ascertain their .provisions.

' Sections 9130-, 9131, 9132 and 9133, Revised Statutes 1899, read as follows:

‘ ‘ Sec. 9130. There shall be in each county in this State, except the city of St. Louis, a county board of equalization, which board shall consist of the county clerk, who shall be secretary of the same, but have no vote, the county surveyor, the- judges of the county court, and the county assessor, which board shall meet at the office of the county clerk on the first Monday in April of each year: Provided, that in any county having adopted township organization, the sheriff of said county shall be a member of said board of equalization. Provided, further, that in counties containing a population of more than seventy thousand and less than one hundred thousand, such board shall meet upon the first Monday of March in each year.
“Sec. 9131. Said board shall have the power to hear complaints and to equalize the valuation and assessments upon all real and personal property within the county which is made taxable by law, and, having each taken an oath, to be administered by the clerk, fairly and impartially to equalize the valuation of all the taxable property in such county, shall immediately proceed to equalize the valuation and assessment of all such property, both real and personal,' within their counties respectively, so that each tract of land shall be entered on the taxbook at its true value: Provided, that said board shall not reduce the valuation of the real or personal property of the county below the value thereof as fixed by said State board of equalization.
“Sec. 9132. The following rules shall be observed by county boards of equalization: First, they shall raise the valuation of all such tracts or parcels of land and any personal property, such as in their opinion have been returned below their real value, according to the rule prescribed by this chapter for such valuation; but, after the board shall have raised the valuation of such real estate, it shall give notice of the fact, specifying the property and the amount raised, to the persons owning or controlling the same, by personal notice, through the mail or by advertisement in any paper published in the county, and that said board shall meet on the fourth Monday of April, except in counties containing a population of more than seventy thousand and less than one hundred thousand, in which counties such board shall meet on the fourth Monday of March of each year, to hear reasons, if any may be given., why such increase should not be made; second, they shall reduce the valuation of such tract or parcels of land or any personal property which, in their opinion, has been returned above its true value as compared with the average valuation of all the real and personal property of the county.
“Sec. 9133. The said board shall hear and determine all appeals made from the valuation of property made by the assessor in a summary way, and shall correct and adjust the assessment accordingly. The county clerk shall keep an accurate record of the proceedings and orders of the board, and the assessor shall correct all erroneous assessments, and the clerk shall adjust the taxbook according to the orders of said board and the orders of the State board of equalization: Provided, that in adding or deducting such per centum to each tract or parcel of real estate as required by said board, he shall add or deduct in each case any fractional sum of less than fifty cents, so that the value of any separate tract shah contain no fractions of a dollar.”

By reading these sections of the statute, it will be seen that the board of equalization is only given the power to hear complaints and equalize the valuation and assessments of property theretofore furnished by property-owners to the county assessor, and by him assessed. But said section 1 of the Act of 1903 goes one step further and authorizes the board of equalization “to assess and equalize the value of any property that may have been omitted from the assessor’s boohs,” etc., whether previously assessed by him or not; evidently intending thereby to cover cases of the character under consideration. But neither the Act of 1903 nor do any of the statutes mentioned make it the duty of the board to give notice to the property-owner, except, first, where the board, under section 1 of the Act of 1903, added property to the assessor’s books, which the owner had omitted to give in to the assessor; and, second, under section 9132, where the board raised the valuation given in by the property-owner. But in the case at bar the board of equalization did neither of those things. It did not add property to the assessor’s books, which the property-owner omitted giving. It simply assessed the money and notes the defendants gave in; nor did the board increase the value of the property as given by the defendant. He valued the money and notes at $27,500, and the board assessed them at that value.

In other words, the board simply assessed the property given in by the defendant at the value he himself placed upon it.

If the defendant had made out his assessment list and had returned it to the assessor prior to October 1, 1904, the date on which the latter turned over the assessor’s books to the county court, then doubtless the assessor would have assessed the property at $27,-500, just as he assessed, practically, all other property, and would have placed it upon the assessment books; but because of that omission on the part of defendant, the assessor was prevented from assessing this property and placing it upon his books, as the law required; but he delivered said list to the board of equalization, and, in obedience to the mandates of section 1 of the Act of 1903, it, as before stated, assessed this property given in by the defendant, and at the value he placed upon it.

We have carefully considered the cases of State ex rel. v. Baker, 170 Mo. l. c. 389, and State ex rel. v. Board of Equalization, 108 Mo. 235, cited by counsel for defendant. Neither of those cases is applicable here. The Act of 1903 had not been enacted when those cases were decided. But independent of that, the assessment in this case is clearly valid under the rulings in the cases of State ex rel. v. Springer, 134 Mo. 212, which overrules the latter cases above cited. In discussing' this same question of notice, the court, on page 226, said: “The action of the board in the case at bar became a matter of record (section 75201), April 13, 1893. It then was the privilege of the bank officers to appear, at the session of the board appointed for the fourth Monday of April to show cause, if any, ‘why such increase should not be made, ’ to quote the terms of the statute (section 7519). The meeting was in fact held at that appointed time; but no representative of the bank made any objection then to the assessment. Such procedure is ‘due process of law.’ It has been distinctly so held by the Federal court of last resort. [State Railroad Tax Cases (1876), 92 U. S. 575; Hagar v. Dist. No. 108 (1884), 111 U. S. 701.] And there are many State decisions to the same general purport. [Hambleton v. Dempsey (1851), 20 Ohio 168; O’Neal v. Bridge Co. (1861), 18 Md. 1; Porter v. Railroad (1875), 76 Ill. 561; State ex rel. v. Runyon (1879), 41 N. J. L. 103; Gillett v. Treas. Lyon Co. (1883), 30 Kan. 166; Spalding v. Hill (1888), 86 Ky. 656; St. Louis, etc., Ry. Co. v. Worthen (1890), 52 Ark. 529.] In dealing with such a question as this case presents, decisions from other states should be used with caution and applied with due regard to the statutory law (not always cited) which lies behind them. We believe, however, that the cases above mentioned illustrate, at least, a general principle having a vital bearing on the result of this appeal, namely: that a statutory appointment of a date to make objections to antecedent steps (in the matter of assessments for taxation) affords a sufficient opportunity for a hearing thereon to answer the requirements of due process of law. We are not unmindful that there are remarks in State ex rel. v. Board (1891), 108 Mo. 235, not entirely in accord with the foregoing views. But those remarks were unnecessary to the judgment, which was finally placed on the safe ground that the objecting party actually appeared, and was duly heard by the board of equalization — a fact justly held to avoid the force of any objection of want of notice. Moreover, this division did not in that case pass upon the effect of the statute (section 7519) as giving notice and opportunity for objections by virtue of its own terms. We hence do not regard the remarks referred to as conclusively barring all investigation of the question of statutory notice, particularly when the full court had already held that a meeting of an equalizing board, at a time and place required by law, imposed a duty on parties in interest to take notice thereof. [State ex rel. v. Railroad (1890), 101 Mo. 120. See also Railroad v. County Clerk (1874), 57 Mo. 223.] We hold that as the statute requires no notice of an increase of assessment of personal property, other than is afforded by tbe record of tbe board of equalization, and permits parties objecting thereto to appear at an appointed date thereafter to show cause against such increase, no other notice thereof is demanded under the Constitution and laws of this State, when the board of equalization meets at the time so appointed. In such case the law itself gives the notice. If the lawmaking authority intended further notice, it could readily have so ordered, as it has already done with respect to the increase of assessments of real property.”

The judgment is, therefore, reversed and the cause remanded for a new trial.

All concur.