author: BOND, P. J.

text:
    E. E. CARSON v. BERTHOLD & JENNINGS LUMBER COMPANY et al., Appellants.
    Division One,
    March 12, 1917.
    .1. COUNTY LAND: Ripley County: Sale for Fifty Cents Fer Acre. A sale of swamp land granted by the State to Ripley County in 1857, and conveyed by the county to a private citizen in 1859, was not void for that it was sold for fifty cents per acre, for the Act of January 30, 1857, Laws 1856, p. 464, provided that the minimum price for such lands lying in that county should be fifty cents an acre. [The Act of January 30, 1857, was not considered in Bayless v. Gibbs, 251 Mo. 492, and hence it is not an authority for a contrary ruling, and if it intended to announce a contrary ruling it is disapproved.]
    2. -: -: Transfer to Another County. Swamp land was granted by the State to Ripley County by legislative act dated November 4, 1857, and by that county was patented to a private citizen in 1859. In 1864 the line between Ripley and Butler counties was so changed that the land was thrown into Butler. Held, that as the title was transferred by Ripley County prior to the change in the boundary, no title ever vested in Butler County, and defendants acquired no title based on a patent from that county.
    3. CONVEYANCES: Equitable Title: From Husband to Wife: Statute of Uses. If the estate vested in the wife by a deed directly to her from her husband, made prior to the Married Woman’s Act, remained in her until after his death, the Statute of Uses upon his death executed the dry trust, and her deed thereafter conveyed the legal title.

      4. LACHES: Neglect of Legal Title. If the owner of a superior title with full knowledge of his rights, neglects to assert or establish them against an adverse claimant in possession, for such a length of time as to afford a presumption that they have been abandoned, or as would prevent the adverse claimant from proving his claim or title, or as would inflict an inequitable injury upon such claimant if he were ousted, then the owner of the superior title will not subsequently be aided by equity to recover the land. But if the delay of the present or previous holders of the paramount title in asserting their rights has not altered the position of the present adverse claimant or those from whom he claims, the land was submerged and not in possession of any one until recent years, the delay has not affected the documentary evidence upon which such claimant relies to show his title, and all that has been done by him has been to erect cheap buildings for the use of employees engaged in cutting timber and tillage, the paramount title has not been defeated by laches.
    5. LIMITATIONS: Pleading. If'there has been adverse possession for a sufficient length of time to create title, the statutes of limitations need not be specially pleaded but may be invoked under a general denial.
    6. -: Swamp Lands: Sec. 7997. The purpose of the last proviso to Sec. 7997, R. S. 1909, was to establish title by prescription in patentees of swamp land conveyed by the county court prior to 1880, who had claimed and paid'taxes for more than twenty years. The act had no retroactive operation, and did not prejudice ihe title which had' been conveyed by patent by the county to a private citizen prior to its enactment.
    7. -: Thirty-Year Statute: Payment of Taxes: Alteration of Tax Book: Interpolations. Documentary evidence, such as a tax book, showing on its face circumstances of suspicion, such as writings over erasures, or the use of different inks, or interpolations, should not be received in evidence without explanation on the part of the party producing it. And that rule applies to an erasure and a change in the description of land on the tax book, where it is attempted thereby to show by the plaintiff that he paid the taxes one year out of the thirty.
    8. -: -: Title. The failure of the owner of the paramount title to pay taxes for thirty-two years will bar him from recovering the land from one who for many years has paid the taxes and has for- seven years been in possession and claiming to be the owner under a patent from the county, which did not convey the title because it had been previously conveyed by another county at a time when- it was a part of its Swamp lands.
    9. -: -: Burden of Proof. The thirty-year Statute of Limitations requires the party invoking it to show non-payment of taxes by tbe owner of tbe paramount title, but tbe evidence to support that negative is not required to be either other or greater in degree than that which would generate belief in the minds of the triers of the fact.
    Appeal from Butler Circuit Court. — Rom. J. P. Foard, Judge.
    Reversed.

      N. A. Mozley and Francis M. Curlee for appellants.
    (1) The patent of Kittrell, Swamp Land Commissioner, under which plaintiff claims, shows on its face that the land was sold at fifty cents per acre, and is, therefore, void. Bayless v. Gibbs, 251- Mo. 492. (2) The title to the land, therefore, remained in Butler County, and passed to defendants’ grantors by the patent from the Swamp Land Commissioner. (3) Defendants acquired title by the twenty and thirty-year Stat-utes of Limitations. Secs. 1884, 7997, R. S. 1909; De Hatre v. Edmonds, 200 Mo. 246; Collins v. Pease, 146 Mo. 135. (4) The payment, or non-payment of taxes is proved as a fact, and by the same sort of testimony by which any ordinary fact may be proven. • Rollins v. McIntyre, 87 Mo. 496; Campbell v. Greer, 209 Mo. 199. (5) The plaintiff must himself prove an indefeasible title, and cannot rely on any weakness, if any, in defendants ’ title. Wheeler v. Land Co., 193 Mo. 279; Senter v. Lumber Co., 255 Mo. 590; Skillman v. Clardy, 256 Mo. 297. (6) If plaintiff has any title, it is only an equitable title. His petition declares on - an equitable title and he claims through deed of June 1, 1878, from John T. Hodgen directly to the latter’s wife Elizabeth D. Hodgen, which deed conveyed no legal title. Turner v. Shaw, 96 Mo. 22; Crawford v. Whitmore, 120 Mo. 44. (7) Plaintiff is barred of equitable remedy by tbe laches of himself and grantors. Shelton v. Horrell, 232 Mo. 358; Troll v. St. Louis, 257 Mo. 660; Moreman v. Talbott, 55 Mo. 392; Landrum v. Bank, 63 Mo. 48; Cockrill v. Hutchinson, 135 Mo. 67; Sensenderfer v. Smith, 66 Mo. 80; Schradski v. Albright, 93 Mo. 42.

      David W. Hill for respondent.
    (1) The consideration of fifty cents per acre in the Eipley County patent was authorized by a statute then in force. Laws 1856-57, p. 464. (2) The title to the land in suit never rested in Butler County. Laws 1857, p. 32; Simpson v. Stoddard Company, 173 Mo. 421; French v. Fyan, 93 U. S. 169. (3) After the land was patented by Eipley County it was located in Butler County by a change of the county line. Laws 1863,-64, p. 409. (4) Sec. 7997, E. S. 1909 could not disturb or affect title to this land — could not disturb vested rights. Telephone Co. v. Telephone Co., 236 Mo. 132. (5) Defendants’ grantors entered upon the land and cut timber in 1906 and built some shacks for sawmill purposes— defendants attempted to purchase in 1909. Defendants admit that saw-mill shacks did not enhance value of land. Disinterested witness swore cutting timber damaged and did not enhance value 'of land. Plaintiff ■brought suit in 1913. Plaintiff’s grantors had paid taxes within thirty years, and he is not barred by any statute or laches. Marshall v. Hill, 246 Mo. 25. (6) The presumption obtains that the interlineation in the tax book was regularly made. 2 Cyc. 242. The so-called “railroad tax books,” introduced by defendants, to prove payment of taxes, were not authorized by law. Secs. 7576, 7551, E. S. 1889; Secs. 6723, 6704, E. S. 1879. (7) The deed .to Elizabeth D. Hodgen from her husband conveyed the equitable title, and when he died, or the marriage ceased from any other cause, the legal title was thereupon vested in her, and her deed, as widow, conveyed the absolute title to John M. Hodgen. Stark v. Kirchgraber, 186 Mo. 633. (8) Laches, relied upon as an estoppel, must be pleaded, and there is no such plea in this case. Turner v. Edmonston, 210 Mo. 428; Grooms v. Morrison, 249 Mo. 550.
   BOND, P. J.

— I. Suit to quiet title and for possession of eighty acres of swamp land. In the first count of his petition plaintiff alleges he is the “equitable owner” of the land. In the second count he alleges that on the 19th day of June, 1913, he was the owner of the same land and prays ejectment of defendants and damages and monthly profits. The answer of defendants avers that they own the land in fee, and, further, that plaintiff is estopped by laches and barred by the thirty-year Statute of Limitations. Issue was joined by a reply. The case was tried by the court, a jury being waived, and judgment was rendered on the first count of the petition that plaintiff “is the absolute owner in fee simple of the land” in dispute, and on the second count the court found the issues for plaintiff and gave judgment for $300 damages, $40 as monthly rents and profits, and for possession of the premises and awarded execution accordingly.

II. The land was granted by the United States to the State of Missouri through an act of Congress, September 28, 1850. This land was situated in Ripley County, Missouri, and the full title thereto was vested in said county by grant from the State through the Act of the General Assembly passed on November '1857. [Laws 1857 (Adj. Ses.), p. 32.] In 1864 the line between Ripley and Butler Counties was altered, wh.ere’by the land was thrown into Butler County. The title claimed by plaintiff was derived through mesne' conveyances from Isaac N. Hedgepeth, to whom the land was patented by Lemuel Kittrell, Swamp Land Commissioner of Ripley County, on May 20, 1859.' The title of the defendants is based upon a patent from the State of Missouri to Butler County, dated February 17, 1870, and recorded March 30, 1870, after which Butler County, by its Swamp Land Commissioner, patented the land to the St. Louis Iron Mountain and Southern Railway Company, duly recorded February 3, 1871, and on May 10, 1901, the said corporation conveyed the land to William M. Barron, by deed recorded June 26, 1901, and the latter conveyed the title to the defendants.

It is insisted by defendants that inasmuch as. the original patent from Ripley County to Isaac N. Hedgepeth shows that the. land- was sold at fifty cents per acre, such patent was absolutely void under the doctrine of Bayless v. Gribbs, 251 Mo. 492. This assignment is not well taken, for it distinctly appears that there was then in force an act of the Legislature, approved January 30, 1857 (Laws 1856, p. 464) which provided that the minimum price for swamp lands- lying in Ripley and other counties mentioned,- should be fifty cents an acre. This act of the Legislature does not seem to have been repealed in 1859, when the Swamp Land Commissioner of Ripley County conveyed the land in dispute to the first taker in plaintiff’s chain of title. Hence the validity of that conveyance is not affected by the ruling in Bayless v. Gribbs, supra. Moreover, this statute does not seem to have been called to the attention of the-court in Bayless v. Gribbs, and anything ruled in that case contrary to its provisions is, therefore, disapproved.

. Assuming, as we must, under the terms of this statute, that the title of Ripley County was transferred prior to the change of boundary between that county and Butler County, whereby the land was taken into and became' a part of the domain of Butler County, it is evident that no title to the land ever vested in Butler County, and hence defendants could not have acquired any title based on a conveyance from it.

III. This leaves for decision only the question as to the nature of the title acquired by plaintiff and whether or not it has been lost by laches or barred by the thirty-year Statute of Limitations.

With reference to the title acquired by plaintiff, appellant makes the point that one of the mesne conveyances upon which it depended was a direct deed from a husband ,to his wife (Hodgen to Hodgen) executed before the enactment of the Married Women’s Statute, and hence under the authority of Turner v. Shaw, 96 Mo. 22,. and subsequent cases, the grantee only acquired an equitable estate. But an examination of the abstract discloses that the estate thus vested in her remained such until after the death of her husband, and the rule is, now established (Stark v. Kirchgraber, 186 Mo. l. c. 642 et seq.) that in such cases the, statute of uses executed the dry trust which was in her husband whenever the wife became dis-covert. Hence the point made by appellant is no longer tenable.

It is further insisted by appellant that respondent is estopped by the -laches of his grantor. Waiving for the consideration of this point, whether the pleadings effect sufficiently state the equities calling for the application of that rule, we will dispose, of the point.

The basis of the rule estopping one by his own laches or that of persons with whom he stands in privity, is laid in the equitable maxim that “he who seeks equity must do equity,” and hence if the owner of a superior title, with full knowledge of his own rights, neglects to assert or establish them against an adverse claimant in possession of the land, for such a length of time as to afford a presumption that they have been abandoned or would prevent the other party from proving the claim or title, or would inflict an inequitable injury upon him, then the owner of such paramount title loses the aid of equity when he subsequently seeks to recover the land. This doctrine 'rests purely on equitable principles and may be invoked independently of the lapse of time fixed by the Statutes of Limitation. [Toler v. Edwards, 249 Mo. l. c. 167, and cases cited..] Although the present holder of the title to the property in dispute acquired the same by quit-claim deed from a non-resident whom he succeeded in finding after letters of inquiry, immediately before the institution of the suit, yet we .do not discover in the facts shown in the record, that the delay of the previous holders of the title, in the assertion of their rights, has altered the position of the defendants or those from whom their title is deraign.ed. The land seems to have been practically submerged until 1906, and not until that time in the actual possession of any one. Defendants acquired their claim of title in 1909, through a chain running back to a conveyance from Butler County in 1870. The delay on the part of the grantors of plaintiff has not affected in any way the documentary evidence upon which defendants rely to show record title, which consists of a series of written conveyances; for the two chains of title rest upon writings which speak for themselves. Hence it cannot be said that defendants have been put to any disadvantage in proving their title. Neither has any inequitable damage been inflicted upon them' since the occupancy of the land began and since the possession was taken thereof by defendants in 1909. All that appears to have been done was the erection of convenient and cheap buildings for the use of the employees of defendants engaged in cutting timber from the land and tillage. In these circumstances we are unable to say that the rights of the defendants have been prejudiced by the delay of the previous grantors of plaintiff to assert their title or that defendants have been put to any disadvantage by the death or disappearance of witnesses in making proof of their title.

IV. The decisive question in this case grows out of the defense of the Statute -of Limitations. The law is well lksettled that where that lapse of time occurrecj whieh, py the Statute of Limitations, is fixed for the creation of an estate by adverse possession or undisturbed occupancy, the statutes need not be specially pleaded, but may be relied on under a general denial. [Nelson v. Brodhack, 44 Mo. 596; Collins v. Pease, 146 Mo. 135; DeHatre v. Edmonds, 200 Mo. l. c. 275, 277.] In considering these defenses the statute of ten years creating title by adverse possession need not be discussed, since there was no actual possession of the land whatever until 1906 and the suit was brought within ten years from that time. Nor was section 7997, Revised Statutes 1909, operative under the facts in this case. The plain-purpose of that statute, as is evidenced by the final proviso therein, was to establish title by prescription in the patentees of land conveyed by the county courts of the State prior to 1880, who had claimed and paid taxes on such lands for more than twenty years. The act had no restrospective effect and could not prejudice the title which was conveyed by patent from Ripley County to the original grantor under whom plaintiff claims before the statute in question was enacted. The estate vested by that conveyance could not be divested by a subsequent patent from Butler. County after the land had become a part of its territory in the circumstances shown in this record.

V. This leaves only the question of the application of the section known as the thirty-year Statute of Limitations (R. S. 1909, sec. 1884). There is proof of the payment of taxes by defendants, or those under whom they claim, for a period of more than thirty-two years up to and including 1913, unless a contrary showing was made when plaintiff .gave in evidence two leaves taken from the book of the Assessor of Taxes for the years 1883 and 1892. These have been incorporated in the abstract and each has been' magnified by a closer photograph. The magnified representation of the first of these shows between items numbered 606 and 607, and 607 and 608, a written insertion of the name “Hod-gins, E. D.” The insertion of the name before No. 607 is opposite 80, under the head of acres, and under the head of “By whom paid,” the following entry: “Dec. 19-83, Keith and Righter.” Between items 607 and 608, is the same insertion of “Hodgins, E. D.” followed by 40 under the head of acreage, and under the head of “By whom paid:” “Dec. 19 — 83, Righter and Keith.” The names of all other owners to whom lots were assessed are set opposite an appropriate numeral. No appropriate numeral appears in front of the two insertions of the name “Hodgins, E. D.” It is, therefore, certain that the two insertions of the name “Hodgins, E. D.” were not made at the time or before the other names of assessed owners were written in the order of the serial numbers before each. Neither is there any evidence that “Keith & Righter” acted for the predecessors of plaintiff. This document is without any evidentiary force and may he disregarded.

YI. The next entry on the enlarged photograph is No. 716. The land there appears tó be assessed to “Timberman, G. H.” There the 'tax book shows an alteration by erasure of the words “Lot 2” and a writing above of “E 1-2” and a payment of the tax in 1892 by J. M. Hodgen. This photograph shows nothing as to the color of the ink.

Unless this payment of taxes was made on the land in dispute on behalf of the then owners of the record title, the bar of the statute for thirty years was sufficiently established by the testimony of witness Greason, Deputy County Clerk, and McClain, which disclosed that from 1882 to 1900, inclusive, the entire taxes on the land in dispute were paid by the railroad, which during that period was the holder of the title, based on the patent from Butler County, except that no taxes were paid during the years 1888 and 1889 on the south half of the land.. As to the latter date there was testimony tending to show that the railroad" company paid the entire taxes, although for that year the land was assessed erroneously to John Mangold. How the north half was paid for the year 1888 rests in inference. But there was no evidence from any source that plaintiff, or those under whom he claims, made any payments for either of those years, and unless the entry contained on the second leaf of the Tax Assessor’s hook above referred to, afford a basis for a reasonable inference of such payment on behalf of plaintiff’s grantors, then there is not a fact or circumstance in the record upon which such a finding could he predicated. The testimony as to payments by the railroad was given by the person employed in its land department, and was based on his own knowledge and own hand. riting and recorded on a separate tax book which was copied from the general "book of assessments and furnished for the convenience of the land department of the railroad.

After the railroad parted with its title, from 1901 to 1913, defendants introduced the tax receipts. It is, therefore, clear to. a demonstration that the "bar of the statute of thirty years accrued unless it is' shown by reasonable presumption from the interpolations and alterations on the second leaf of the Assessor^ book that the payment there noted was made in behalf of plaintiff’s grantors or by them. [Campbell v. Greer, 209 Mo. 199.]

The rule is well settled in this State that where documentary evidence is produced, showing on its face circumstances of suspicion, such as writings over erasures or the use of different inks, or interpolations, that they should not be received in evidence without explanation on the part of persons producing them.

In speaking of the alteration of a special tax bill by the erasure of descriptive words and the insertion of others, .it was said: “And this fact was sufficient to excite suspicion and justify the court in • requiring evidence that the alteration was bona-fide and proper before admitting the tax bill itself in evidence.” [Bank v. Manning, 133 Mo. App. l. c. 298; Paramore v. Lindsey, 63 Mo. 63; Stilwell v. Patton, 108 Mo. l. c. 360.] There can be no question from a consideration of the photograph contained in the abstract that the second leaf of the Assessor’s book bore on .its face evidence casting suspiciop. upon the altered and added entries. While it is true that public records are subject to less “suspicion” in case of alterations than private papers (2 Cyc. 242) yet this rule does not “obtain if the interlineation or alteration is itself suspicious.” [Cox v. Mignery & Co., 126 Mo. App. l. c. 682, 683 and cases cited; 2 Cyc. 242,. par. h.] The evidence is undisputed that this land was never at any time assessed for taxation against any holder of the title under whom plaintiff claims, and that in the instance relied on to show such payment, the actual assessment was of 127 acres against “Timberman, G. H,” This fact, together with the patent erasure and alteration of the description of the land and with the failure to show, by oral testimony, the inclusion of the land in dispute in the larger acreage assessed against Timber-man, necessarily creates such suspicion against this isolated excerpt from the Tax Assessor’s book as to bring it within the rule, making it the duty of the party relying thereon to show that it was his land on which he was paying taxes. The record relating to the offer of this evidence is, towit:

“Mr. Hill. I next read in evidence page 21 of the book for the year 1882 of Butler County, Missouri, identified by the witness J. D. Greason, and particularly the following line, beginning at figure No. 716, ‘To whom assessed.”
“Mr. Curlee: We object to that for reasons— similar reasons given to the foregoing objection. Specifically this line, or lines about to be read from the entry, in the regular course of business, appears to be lot 2 of the southwest quarter and the south half of lot 2, northwest quarter. There has been erased the words: ‘Lot 2’ and substituted in a different handwriting, in a different colored ink, by interlineation in lieu of lot 2, the figures ‘E 1-2.’
“Mr. Hill: The land in suit, and the same writing: ‘Paid by J. M Hodgen.’
“The Court: Objection overruled.
“To which ruling of the court the defendant, by counsel, objected and excepted at the time.”

A careful consideration of the salient facts of this case exclude any reasonable inference or presumption of law of the payment of taxes by any other claimants to the land than the railroad and its successors in title. The plaintiff acquired his- quit claim deed a few days before his suit was instituted. He had no knowledge of the non-resident grantor, other than the discovery of his name in the examination of abstracts. He at once wrote for information to Illinois and finally got in communication with the seeming title holder in Arkansas, from Avhom he obtained the quitclaim. He never knew of any payment of taxes by any one who preceded Mm in the chain of title, was never provided with any tax receipts. The land itself was little more than a qnagmire prior to 1906. In these circumstances and the clear and satisfactory evidence of continuous-payment of the taxes by the parties in the line of defendants’ title for over thirty-two years, we do not see how any doubt could exist as to the non-payment of any such taxes during the same period by the plaintiff or his predecessors in title. The only effort to rebut the case made by defendants was a production of the two leaves from the tax book, of insufficient probative force to overcome the clear inference of the failure of plaintiff or his grantor to pay, arising on the undisputed evidence given by defendants. While the thirty-year ■statute requires the party invoking it to show non-payment of taxes by the claimants of title, it does not intend that the evidence to support that negative shall be other or greater in degree than that which would generate belief in the minds of the triers of the fact. We think that quantum of proof in this case was sufficient to show by unavoidable inference that no taxes were paid on this land, either by plaintiff or those under whom he claims.

After a careful study of this record, we think the conclusion is clear that the title holders under whom plaintiff claims, completely abandoned the land; that they never paid any taxes thereon and that the immediate grantor of plaintiff was oblivious of any interest therein until he was ascertained by the inquiries which plaintiff set on foot, as he says, for “speculative purposes” after he had observed his name in an abstract and gotten into communication with him in Arkansas.

The result is that the judgment is reversed.

All concur, Woodson, J., in result.


source: Caselaw Access Project

author: BROWN, C. PER CURIAM:

license: Public Domain

text:
    THE STATE ex rel. ALFRED VAUGHT, Collector of the Revenue, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant.
    Division One,
    March 12, 1917.
    1. BILL OF EXCEPTIONS: Change in Judge. A bill of exceptions agreed to by both parties, and signed by the circuit judge who tried the case, after the county in which the case was tried had been detached from his circuit and added to another, will be considered on appeal. [Refusing to follow State ex. rel. v. Flick, 179 Mo. App. 236.]
    2. -: Circuit Judge: State Officer. The office of circuit judge is a State and in no sense a local office, and the judge as such may exercise his judicial functions in proper cases in any county. His powers, in whatever county exercised, rest upon his election or appointment and qualification by his oath of office; and whenever in the performance of his official duties, he enters upon the trial of a case, he acts within the limits of his official authority, which continues until the duty is performed or he goes out of office. If he tried the case and is still circuit judge he can settle and approve the bill of exceptions, although the county in which the case was tried is, by legislative enactment, no longer a part of his circuit.
    3. COUNTY TAXES: Road Purposes. The county court in counties in which the assessed valuation of properties is less than six millions, may levy fifty, cents on the hundred dollars for county purposes, and set aside fifteen cents of it to improvement of roads; and it can in addition to that fifty cents, levy an additional tax not exceeding twenty-five cents to be used for road-and-bridge purposes but for no other purpose.
    4. -: -: Twenty-Five-Cent Levy: Divided Into Two: County Purposes. The county court levied fifty cents on the hundred dollars’ valuation for' county purposes, and divided it into five funds, distributing fifteen cents to the fund “for the' payment of all necessary expenses incurred in the building and repairing of roads and bridges.” The further words of the levy were: “It is further ordered that a property road tax of twenty cents on each 'one hundred dollars valuation on all property made taxable by law for road purposes be levied and collected for the use and benefit of the respective road districts of the county, when collected to be placed to the credit of said road districts for the purposes specified in the statutes. It is further ordered that a property road-and-bridge tax of five cents on the hundred dollars’ valuation be levied on all property made taxable by law, and when collected to be placed to the credit of said Road-and-Bridge Fund as provided by law.” Held, that the first appropriation of fifteen cents was made in pursuance of the statute as the proportion of the road fund to be derived from the general revenue arising from the maximum levy of fifty cents for county purposes; and the other two levies of twenty and five cents were made under the constitutional amendment of 1908 and Sec. 10482, R. S. 1909, and while no good reason is apparent why the aggregate levy of twenty-five cents should have been thus divided into two, they were both made for the one purpose contemplated by that constitutional amendment and both were legal, and the levy of twenty cents cannot be disposed of as a levy for “county purposes” under section 11 of article 10 of the Constitution.
    5. -: -: -: Not Designated as Special Tax. The constitutional amendment (Sec. 22, art. 10, Constitution) does not require the name by which the “special tax” of twenty-five cents for road purposes is authorized, to be specified as a part of the record order levying it. The fact that it is levied nominally “for road and bridge purposes” and that it is in excess of the tax authorized by section 11 of article 10 of the Constitution, fixes its status as a special tax, and limits its use when collected. It is only necessary that it should be levied separately from and “in addition to” the levy “authorized for county purposes” and that it should appear to be “for road and bridge purposes.”
    6. -: -: -: Use for Other Purposes: Agency Expending It. The twenty-five cent road tax authorized by the constitutional amendment of 1908 cannot be used for any other purpose than for roads and bridges, but neither the amendment nor the statute .designates the particular agency, among those lawfully charged with the duties to which the purpose pertains, by whom it is to be expended.
    Appeal from Scotland Circuit Court — Hon. Charles D. Stewart, Judge.
    Affirmed.

      Thomas R. Morrow, George J. Mersereau, John H. Lathrop and J. D. M. Hamilton, Jr., for appellant.
    The. two-mill road tax as ordered by the county court of Scotland County was levied under Sec. 10481, R. S. 1909, and was unconstitutional for the reason that the fifty-cent limitation of section 11, article 10, of the Constitution, had been exhausted by the current expense tax, section 10481, Revised Statutes 1909, being within the limitation of section 11, article 10, of the Constitution. State ex rel. v. Railroad, ,87 Mo. 236; Brooks v. Schultz, 178 Mo. 222; Arnold v. Hawkins, 95 Mo. 569; Sees. 10481, 10482, 11422, 1423 and 11769, R. S. 1909; Secs. 1, 11, 12 and 22, art. 10 Constitution.

      J. M. Jayne and H. V. Smoot for respondent,
    Respondent challenges the bill of exceptions filed by appellants, in this, that the bill of exceptions as filed was not and is not signed by the judge of the 37th Judicial Circuit of which Scotland County is and was at the time bill was signed a part, nor by the judge of the Scotland County Circuit Court, but'was signed by Chas. D. Stewart, who at the time he signed the bill of exceptions was and now is judge of the First Judicial Circuit, which circuit is and was then composed of Adair, Knox and Lewis counties. Laws 1913, p. 216. True the bill of exceptions purports to have been signed on the 15th day of May, 1914, by Chas. D. Stewart, Judge of .the Scotland County Circuit Court, which was more than one year after Scotland County was detached from the First Judicial Circuit, and long after the appointment of Hon. N. M. Pettingill as judge of the 37th Judicial Circuit, of which Scotland County was a part. Respondent contends that the Hon. N. M. Pet-, tingill was the proper party to sign same and not Judge Stewart, and that the signing by Hon. Chas. D. Stewart was without authority and void, thus rendering the paper presented as a bill of exceptions no bill of exceptions. State ex rel. v. Flick, 179 Mo. App. 236; Sec. 2032, R. S. 1909. Going out of office means going out of the judgeship of the court over which he presided, though judge of another. Raney v. Packing Co., 132 Mo. App. 327; Fenn v. Reber, 153 Mo. App. 219.
   BROWN, C.

— This is a suit for taxes amounting to $574.12, with penalties and attorneys’ fees, in which the judgment was for the plaintiff. The defendant appeals.

The petition states that the taxes sued for were assessed and levied “for county purposes for the general road fund.”

The defendant, after the ordinary general denial, answers as follows:

“Defendant further answering said petition states that the sum of $574.12 alleged as owing by this defendant to the county of Scotland and designated in plaintiff’s petition as.the ‘General Boad Fund’ is obtained by an attempted levy of two' mills per dollar on the right of way owned by this defendant in said Scotland County, Missouri; and that this tax levy apparently is made under authority of section 10481, Bevised Statutes 1909, said provision being known as the ‘General Boad Tax.’
“Defendant further states that all taxes that may be levied by county courts are designated in article 10 of the Constitution of the State of Missouri; that no such tax as provided by said section 10481, Bevised Statutes 1909, is anywhere authorized in said Constitu-' tion and that said levy of two mills on the dollar, as provided for in section 10481, is without authority and void because it is contrary to and violative of article 10 of the Constitution of the State.
“Defendant further states that the total valuation of taxable property in said Scotland County for the year 1912, is less than six million dollars, and that by reason thereof under the limitations of article 10, section 11, of the Constitution of the State, the amount of taxes that can be lawfully levied upon property in said county is five mills on the dollar, and defendant states that the attempted tax levy of two mills on the dollar for road purposes is in excess of the lawful rate of taxes in said Scotland County, and is therefore specifically a direct violation of section 11, article 10, .of the Constitution of Missouri, and is for that reason without authority and void.”

The plaintiff replies, among other things, as follows:

“Plaintiff for further reply states that said county court in addition to the amount they could levy under section 11 of article 10 of the Constitution saw proper to make a special levy, as provided by section 22 of said article of the. Constitution of Missouri,’ and that the taxes sued for by plaintiff in his petition are the said taxes so levied and provided by said section 22 of article 10 of the Constitution, and was in force at the time of the levying of said taxes.”

The order of the county court for Scotland County levying these taxes is as follows:

“In compliance with section - of article--, chapter -, of the Revised Statutes of 1909 of the State of Missouri, it is ordered by the court that there be and is hereby levied on the assessed valuation of the railroads, telegraph and telephone property of the county for the year 1912, as adjusted and equalized' by the State Board of Assessment and Equalization as shown by the certificate of the State’Auditor for said year, the following taxes, to-wit: For state purposes, one and nine-tenths mills on each dollar valuation. For the purpose of paying the current expense of the county for the ensuing year to be known as the County Revenue Fund, there is levied five mills on each one dollar valuation to be apportioned as follows, to-wit: For Officers’ Salary Fund, one and one-half mills. For Jury and Election Funds one-half of a mill. For Road- and-Bridge Fund, one and one-half mills. For Contingent Fund three-fourths of a mill. For the payment of interest on funding bonds as per order of the Scotland County Circuit Court at its February term, 1893, there is levied a tax of six mills on each one dollar valuation, to be known as the Bond Interest Fund. For the ■ Special Road-and-Bridge Fund there shall be levied and collected one-half mill on each one dollar valuation. For the purposes estimated in the name prescribed by law' there shall be levied and collected a tax of two mills on each one dollar valuation to be apportioned when collected to' the several road districts as provided by law, to be known as the Road Tax Fund.”

The case was tried to the court, Hon. Chas. D. Stewart, Judge of First Judicial Circuit, presiding, on May 17, 1913. Motions for new trial and in arrest were filed the same day and continued to the November term, when they were overruled and leave granted the defendant to file bill of exceptions during the following May term, at which, on May 15, 1914, it was signed by Judge Stewart and duly filed, being “approved and agreed to” by the plaintiff by writing under the signature.

The defendant contests the validity of the tax sued for on the ground that it exceeds the amount limited in section 11 of article 10 of the Constitution for county purposes and does not come within the authority granted by the amendment of 1908 embodied in section 22 of the same article. In support of its position it' leans to some extent upon the form of the order of the county court making the levy, which was given in evidence, but not set out in the pleadings. The plaintiff challenges the bill of exceptions, because it is signed by Judge Stewart of the First Judicial Circuit before whom the cause was tried in that circuit, while Scotland County was a part of it, instead of being signed by Judge Pettingill who had been appointed judge of the new Thirty-seventh Judicial Circuit, to which that county had been attached.

It will be seen that the point made is quite technical, the bill. of exceptions having been signed by the judge who alone held in his own breast the proceedings, and being, admitted to be true.

It is apparently conceded that before the enactment, in 1889, of the provisions of section 2032 of our present Revised Statutes, the judge who tried the cause was the only one competent to sign the bill, and that his death or retirement from office before signing it, would preclude the unsuccessful party to the judgment from a review of any matter of exception by appeal or writ of error. It was evidently to remedy this condition that the section was enacted. Its necessity flowed naturally from those provisions of onr code relaxing the common-law rule that exceptions must be written out and signed during the progress of the trial. This section provides: “In any case where the judge who heard the cause shall go out of office before signing the bill of exceptions, such bill, if agreed to be true by the parties to the action, or their attorneys, or shown to the judge to be correct, shall be signed by the succeeding or acting judge of the court where the case was heard.” That this section was enacted to secure as effectually as possible the right of review of decisions of the trial courts is evident, and that its remedial provisions should be construed in harmony with that evident purpose goes without saying. It only remains to notice its application to the facts of this ease.

The Constitution (Art. 6', sec. 24) provides that the State shall be divided into circuits, in each of which one circuit judge shall be elected and that whenever a circuit is abolished the office of the judge of such circuit shall cease. Section 29 of the same article is as follows: “If there be a vacancy in the office of judge of any circuit, or if the judge be sick, absent, or from any cause unable to hold any term or part of term of court, in any county in his circuit, such term or part of term of court may be held by a judge of any other circuit; and at the request of the judge of any circuit, any term of court or part of term in his circuit may be held by the judge of any other circuit, and in all such cases, or in any case where the judge cannot preside, the General Assembly shall make such additional provision for holding court as may be found necessary.” “We have quoted this section fully to call attention to the fact that the office of circuit judge is, by the terms of the Constitution which created it, a State and not in any sense a local office, and that the circuit and its courts are the judicial instruments of the State, and not of any particular locality. The judge is a judicial officer of the State and may exercise his functions as such in proper cáses in any county. The circuit is simply the territorial unit of his creation, and when it is abolished the office which depends upon its existence ceases (Id., sec. 24), bnt the territorial unit of the court is the county.

We note particularly the clause in section twenty-nine of the same article which provides that at the request of the judge of any circuit' any term of court or part of term in his circuit may be held by the judge of any circuit. Under this provision the request may originate in the caprice of the judge of the circuit in which the ’court is held, as well as in any other condition. In Riggs v. Owen, 120 Mo. 176, Dekalb County, which constituted a part of the Twelfth Judicial Circuit of which Hon. O. M. Spencer was judge, was attached to the Twenty-eighth Judicial Circuit, of which Hon. C. II. S. Goodman was judge. A cause which Judge Spencer had tried was pending in the DeKalb Circuit Court upon motion for a new trial, and while Judge Goodman “was present in court in apparent good health” Judge Spencer sat upon the bench and overruled it. When the motion was reached, Mr. Riggs, against whom the judgment had been rendered, objected on the following grounds: “First, because Judge Goodman was present in court in apparent good health.; and, second, because Judge Spencer, as judge of the Twelfth Circuit, had no jurisdiction.”

In sustaining the action of Judge Spencer this court in division said: “Judge Goodman was authorized to call Judge Spencer to hold this term or any part' of it, and in the absence of any showing to -the contrary we will presume that he did. [State v. Gamble, 108 Mo. 500.] It was most natural and • proper that he should have done so, in order to close up the business which was then pending, especially to pass upon motions for new trial and prevent the unnecessary delay and cost of second trials. It is not for parties litigant to determine the condition of the judge’s health, or his reasons for calling in another judge. The law has vested that power in him. [State v. Ulrich, 110 Mo. 350.] ”

In State v. Gordon, 196 Mo. 185, the ease was pending in the circuit court of St. Francois County in the Twenty-seventh Judicial Circuit, of which Hon. Robert A. Anthony was sole judge. An affidavit of prejudice was filed against him and he called in Hon. Samuel Davis, judge of the Fifteenth Judicial Circuit, to try the case. The defendant was convicted at the November term, 1904, motion for new trial was overruled at the same term and the defendant given until February 16, 1905, to file hill of exceptions. This time was extended until March 16, 1905, and again to April 15, 1905, both orders being made by Judge Davis, who signed the hill of exceptions and ordered it filed on April 12, 1912. No judgment was entered upon the verdict, nor sentence passed at the November term, 1904, at which the conviction was had, hut afterward, on February 21, 1906, at an adjourned November term, 1905, Judge Davis, with the consent of Judge Killian, the successor of Judge Anthony, as judge of the Twenty-seventh Judicial Circuit, ordered a nunc pro tunc entry of judgment and sentence as of November 25, 1904. On the first Monday in January, 1905, Judge Killian had been elected to succeed Judge Anthony at the November election preceding, and Judge Davis had been elected at the same time his own successor. It was held that the judgment entered nunc pro tunc. was a valid judgment, and that the hill of exceptions had been properly, signed by Judge Davis, the court saying (p. 196): “It may he conceded that if Judge Davis had not been reelected at the regular election .in November, 1904, he would have had no authority whatever to enter the nunc pro tunc judgment and to pass sentence upon defendant, as it was only in his capacity of judge of the circuit court of. the Fifteenth Judicial Circuit that he had such authority; but as he continued; without intermission,' to he judge of that circuit, and his present or. succeeding term of office as judge of said circuit, for which he had been duly elected, .commissioned and qualified, commenced immediately upon the expiration of the term during which he presided at the trial of said case, there was, therefore, no vacancy in said office, and,we are of opinion that he retained jurisdiction of the case.” The same ruling was made in State v. McCarver, 194 Mo. 717. While Riggs v. Owen, supra, is, as far as we can see, founded upon a state of facts precisely similar to this, the same principle is involved in all. The same question now before us was decided by the St. Louis Court of -Appeals in Patterson v. Yancey, 97 Mo. App. 681, which held that the judge who tried the case properly signed the bill of exceptions, and notwithstanding the fact that, between the overruling of the motion for a new trial and the signing and filing of the bill of exceptions, the county in which the cause was tried had been detached from his circuit. .

All these decsions rest upon the principle that under our Constitution and statute the judge of the circuit court is a judicial officer of the State whose powers, in whatever county they may be exercised, rest upon his election and qualification by his oath of office, and that whenever, in the performance of his official duty, he enters upon the trial of a case, he acts within the limits of his official authority, which continues until the duty is performed or he goes out of office. This capacity results from the nature of the duty, and has always been recognized by this court. [Woolfolk v. Tate, 25 Mo. 597; Cocker v. Cocker, 56 Mo. 180.] The same necessity in which this rule is founded afforded the incentive for the enactment of the law we are now considering. While, at the time of its enactment in 1889, the common law, through the official capacity and powers of the trial judge, carefully preserved to the litigant the means of preserving for review the rulings incident to the trial, it was' possible these might be foreclosed by the cessation of the office of the trial judge before they had been properly preserved and recorded. The statute (R. S. 1909, sec. 2032) carefully covered this field, and its remedial words are no broader than its remedial purpose. It covers those cases only “where the judge who heard the cause shall go out of office before signing the bill of exceptions.” To disregard this language and substitute language of our own, requires a more powerful incentive than to embarrass the right of review which it was designed to secure.

We are aware that the Kansas City Court of Appeals in State ex rel. v. Flick, 179 Mo. App. 236, takes a different view of this question, but are not satisfied with its reasoning, and prefer to adhere to the doctrine of this court and that of the St. Louis Court of Appeals in the eases cited. We think that this bill of exceptions is properly before the court, and that it is- our duty to consider the effect of the levy, which is the real subject of the controversy.

II. We are not favored with the views of the respondent upon the merits,, either in brief or oral argument. It has preferred to put all its eggs in the basket containing its objections to the bill of exceptions, and let us struggle as best we can with the merits, aided only by the exhaustive arguments, both printed and oral, of the appellant. The question is one of public importance, affecting the power of taxation for all purposes relating to roads and bridges.

The total valuation, for taxation, of the property of Scotland County is less than $6,000,000, and section eleven of article ten of the State Constitution limits the annual rate of taxation for county purposes to fifty cents on each one hundred dollars of such valuation. That the establishment, construction and maintenance of roads and bridges in the county, except within the limits of municipal corporations charged with those duties, belongs in the category of “county purposes” is not denied.

Acting under the authority of statutes passed in pursuance of the constitutional provision referred to, the county court of Scotland County levied upon the property of the county at the May term, 1912, taxes for county purposes to the full amount of fifty cents on each one hundred dollars, and, in conformity with the provisions of section 11423, appropriated, apportioned and subdivided the fund so levied as follows: (1) for the care of paupers aud insane, five cents on. each one hundred dollars; (2) for the payment of all necessary expenses incurred in the building and repairing of roads and bridges, fifteen cents on each one hundred dollars; (3) for salaries, fifteen cents; (4) for the payment of fees of jurors, judges and clerks of election and witnesses before the grand jury, seven and one-half cents; and (5) for the payment of current expenses of the county not otherwise provided for designated as the contingent fund, seven and one-half cents. The order then provides as follows: “It is further ordered that a property road tax of two mills on each one dollar valuation as shown by the assessor’s book for the year 1912, on all property made taxable by law for road purposes, be levied and collected for the use and benefit of the respective road districts of the county, when collected to be placed to the credit of said road districts for the purpose specified in the statutes in such cases made and provided. It is further ordered that a property road-and-bridge tax of one-half of one mill on each one dollar valuation as shown by the assessor’s books for the year 1912 be levied on all property made taxable by law, and when collected to be placed to the credit of said Road-and-Bridge Fund as provided by law.” The remainder of the order, refers to the levy of money for the payment of interest and does not come within the constitutional limitation we have mentioned. It will be observed that the several amounts so apportioned, omitting the two ■ items last mentioned, amount to the constitutional.limit of fifty cents on each one hundred dollars, while the two additional items amount to twenty-five cents on each one hundred dollars. It is the amount collected from the two-mill levy which is the subject of this suit. We have set out this apportionment in full as spread upon the record of the county court in the statement- which precedes this opinion.

The appellant states its position as follows:

“The two-mill road tax as ordered by the .county court of Scotland County was levied under section 10481, Revised Statutes 1909, and was unconstitutional for the reason that the fifty-cent limitation of section 11, article 10, of the Missouri Constitution had been exhausted by the current expense tax, section 10481, Revised Statutes 1909, being within the limitation of section 11, article 10 of the Constitution. ” ■

III. In 1908 an amendment to the Constitution was adopted and added to article 10 as section 22, which is as follows:

“In addition to taxes authorized to be levied for county purposes under and by virtue of section 11, article 10, of the Constitution of this State, the county court in the several counties of g-j-^g under township organization, and the township board of directors' in the several counties under township organization, may, in their discretion, levy and collect, in the same manner as state and county taxes are collected, a special tax not exceeding twenty-five cents on each $100 valuation, to be used for road and bridge purposes, but for no other purpose whatever; and the power hereby given said county courts and township boards is declared to be a discretionary power. ’ ’

It is upon this amendment and the acts subsequently passed and incorporated in the Revised Statutes of 1909 that the validity of the tax in controversy is asserted and must depend.

No amendment was made to section 9283, Revised Statutes 1899, which is contained in the Revised Statutes of 1909 as section 11423, and was substantially followed in the apportionment to which we have already referred down to the last paragraph, in which the twenty-cent appropriation was made. This paragraph and all succeeding matter was added by the county court to the statutory form as it had existed for many years. The Act of 1909 (Sec. 10481, R. S. 1909) is as follows:

“The county court in the several counties of this State, at the May term thereof in each year, shall levy upon all real and personal property made taxable by law) outside of incorporated cities, towns and villages, a tax of not more than twenty cents on the one hundred dollars valuation as a road tax, which levy shall he collected and paid by the collector into the county treasury as other revenue, and the county treasurer shall place the same to the credit of the road district from which said tax was collected, and shall pay the same to the overseer of said district on the warrants of the county court. The money derived from such road tax shall be expended by the respective road overseers in purchasing necessary tools with which to work the roads in their districts, in purchasing material to build or repair bridges and culverts, and for such other expenditures as may be necessary to keep the roads in their districts in good- order: Provided, that the construction of all bridges and culverts shall be under the direction or supervision of the county highway engineer.”

The next succeeding section (10482) is as follows:

“In addition to the levy hereinbefore authorized to be made, the county courts of the several counties of this State, other than those under township organization, may, in their discretion, levy and collect, in the same manner as state and county taxes are collected, a special tax not exceeding twenty-five cents on each one hundred dollars valuation, to be used for road and bridge purposes, but for no other purpose whatever, and the same shall be known and designated as ‘the Special Road-and-Bridge Fund’ of the county.”

Again, in section 11769, evidently referring to the same subject, it is provided that “the county court of any county in the State which is not under township organization, . . . may, annually in their discretion, at the same time and in the same manner as taxes are now required by law to be levied for county purposes, levy an annual tax in addition to those now authorized by law in any amount not exceeding twenty-five cents on each one hundred dollars’ valuation on all property subject to taxation in such county . . . to be known as a Special Road-and-Bridge Tax.”

It is upon the interpretation of these three sections as applied to the levy before ns that this case is to be determined.

It will be seen that there is no question as to the authority of the county court to levy the entire amount.Before the amendment of 1908- all road taxes were included in the levy authorized by the Constitution to be made for “county purposes.” The form fixed by statute for the apportionment of this levy expressly authorizes the appropriation from the amount so raised of “a sum sufficient for the payment of all necessary expenses for the building of bridges and repairing of roads, including pay of road overseers.” The constitutional amendment permits the twenty-five cent levy “in addition to taxes authorized to he levied for county purposes under and hy virtue of section 11,” and the statutes enacted in pursuance of it contain the same authority. The amendment simply increases the amount which the county was authorized to levy under the provisions of section 11 from fifty cents to seventy-five cents on .each one hundred dollars valuation, with the limitation that the entire additional levy must be made and used for road and bridge purposes and for no other purpose whatever. It imposes no duty upon the county court to appropriate any part of the levy for county purposes under section 11 to such uses, but left the power undisturbed. Even if the county court previously had the power, to transfer the road-and-bridge fund created under the provisions of section 11423 of the Revised Statutes of 1909 (Decker v. Diemer, 229 Mo. 296), this fund is to be kept sacred to the purpose for which it was levied. The question here is not whether the county court had power to levy this disputed tax (for the amendment places that beyond question), but whether it did it; that is to say, whether the words used in making the levy were apt and sufficient under the constitutional amendment and statutes enacted to carry it into effect. ■

IV. Section 11423 providing for the subdivision and apportionment of the levy .for county purposes was enacted in 1879, and has ever since been co-existent with section 11 of article 10 of the Constitution, in pursuance of which it was enacted. It was designed for the distribution of the revenue for “county purposes” authorized by that section of the Constitution, and specified five funds to which only it can be appropriation by the county court. One of the five is the fund referred to in section 10481 of the present revision, and was limited to twenty cents on the one hundred dollars valuation. The county court levied the full amount of fifty nents of the one hundred dollars’ valuation authorized by the Constitution and section 11422 of the Revised Statutes, and then proceeded to divide it into the five funds authorized by section 11423; distributing fifteen cents on the one hundred dollars of valuation to the fund “for the payment of all necessary expenses incurred in the building and repairing of roads and bridges.” That this appropriation was made in pursuance of the statute as the proportion of the road fund to be derived from the general revenue resulting from the maximum levy of fifty cents for “county purposes” is plainly expressed in the order itself and does. not admit of question. So far as the amount of road and bridge taxes to be appropriated from that particular levy was concerned it exhausted the authority of the court, because in 'connection with the four other appropriations-made at the same time'it exhausted the amount of the fifty cents constitutional levy. There was nothing left for further distribution. The court then proceeded to make another and additional levy in these words: “It is further ordered that a property road tax of two mills on each one dollar valuation as shown by the assessor’s books for the year 1912 on all property made taxable by law for road purposes be levied and collected for the use and benefit of the respective road districts of the county, when collected to be placed to the credit of said road districts for the purpose specified in the statutes in- such cases made and provided. It is further ordered that a property road-and-bridge tax of one-half of one mill on each one dollar valuation as shown by the assessor’s books for the year 1912 be levied on all property made taxable' by law, and when collected to be placed to the credit of said road and bridge fund as provided by law.”

That the last two levies were intended to be made under the authority granted by section 22 of the Constitution and section 10482, Revised Statutes 1909, necessarily follows from the fact that the previous levy of fifteen cents embodied in the second clause of the apportionment of fifty cents for county purposes under the provisions of section 11 of article 10 of the Constitution, and section 10481 enacted in pursuance thereof, exhausted the power of the county court under the law as it stood before the amendment. The two levies of twenty cents and five cents last mentioned, amounting to twenty-five cents ' on' each one hundred dollars of valuation, must therefore stand upon the amendment of 1908 and section 10482 or not at all.

The defendant paid the last of these additional levies amounting to five cents on the one hundred dollars and only disputes the twenty cent levy. On what theory this was done is not clear to ns; for it was certainly void if its validity must depend on the authority of section 11 of article 10 of the Constitution, being in excess of the fifty cent limit. If made under section 22, article 10, and section 10482 it comes within the amount of the additional levy of twenty-five cents so authorized. It is therefore evident that the county court in making each of them,, attempted to act under the amendment and section 10482. The only question is whether it failed to express its intention.

Y. The - fact that the twenty-cent levy only is in dispute, suggests that it might have been thought that the additional tax of twenty-five cents on each one hundred dollars of valuation must necessarily be levied at a single stroke of the ax, and that the payment of either would therefore discharge the liability for both. We think this too technical for serious consideration, and that the real question is- whether it comes within the authority of the amendment of 1908; and that upon this record we have only to consider the validity of the twenty-cent levy from that standpoint.

VI. Section 22 of article 10 of the Constitution, which we have already quoted, provides that in addition to taxes authorized to be levied for county purposes under and by virtue of section 11, article 10, the county court may in its discretion levy and collect a special tax not to exceed twenty-five cents on the one hundred dollars of valuation, to be used for road and bridge purposes, but for no other purpose whatever. This provision uses no other term of description than “special tax.” The word special only means relating to a particular thing or class of things, and is explained fully by the clause requiring it to be used for road and bridge purposes, but for no other purpose whatever. The necessity for its use in this connection is made plain in Decker v. Diemer, supra. This court In Banc said (p. 336): ‘ ‘ The bald question then is: May a county court transfer a surplus and divert it from a fund having a designated and given purpose, to another legitimate county purpose, by force and reason of the satisfaction of the original use or purpose? We answer that question in the affirmative.” That portion of the levy authorized by the Constitution for county purposes which had been set apart for roads and bridges might be diverted from such purpose, and the people thought best to and did confine the additional levy .to use for the special purpose for which, they authorized it and no other. Thus any road-and-bridge tax in excess of the amount allowed by the Constitution for county purposes must be held sacred to the use for which it was authorized. The fact that it is levied nominally “for road-and-bridge purposes” and that it is in excess of the tax authorized by section 11, article 10, of the Constitution, fixes its special status and limits its use. The amendment does not purport to prescribe a name by which it must be called upon the record, but only to designate the use to which it shall be limited when collected. It is only necessary that it should be made separately from and in addition to the levy “authorized for county purposes,” and that it should app'ear to be “for road-and-bridge purposes.” All else is taken care of by the law which guards the legislative intent when once expressed. The same words are transferred from the Constitution to section 10482 of the present Revised Statutes, and there is nothing in the act in which they occur that suggests a different interpretation. There is nothing in either Constitution or statute which suggests the intention that it be expended through-any particular agency among ' those , lawfully charged with the duties to which its purpose pertains, or requiring that it be done in a single clause of the order making the levy or in an undivided amount. This' feature was recently discussed and determined by us in State ex rel. v. Burton, 266 Mo. 711.

The judgment of the circuit court is sustained.

Railey, C., concurs.

PER CURIAM:

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

All of the judges concur.