author: GRAVES, J.

text:
    CITY OF ST. LOUIS v. ST. LOUIS TRANSFER COMPANY, Appellant.
    Division One,
    April 2, 1914.
    1. APPELLATE JURISDICTION: City of St. Louis a Party. The Supreme Court has jurisdiction of a cause to which the city of St. Louis is a party, notwithstanding the amount in dispute is less than $7500.
    2. VEHICLE LICENSE: Width of Tires: Invalid Ordinance. The proviso to section 1708 of article 2 of chapter 23 of the “Ordinance in Revision of the General Ordinances” of the city of St. Louis, relating to the width of .tires of vehicles used on the streets, is invalid and void, because not authorized by the charter, as stated in State ex rel. v. Clifford, 228 Mo. 194; but so much of the ordinance as precedes the proviso, being that ' part which charges a license tax on each vehicle, wagon, etc., in use on the streets, is not invalid; and if in the Clifford case it was meant to declare the whole ordinance invalid, instead of only the proviso, as was lifeely intended, then that case was to that extent wrong.
    3. —— ■: -: -: Separable Provisions. It cannot be said that the Municipal Assembly would not have given legislative sanction to the Vehicle License Ordinance had it not contained the invalid proviso concerning the width of tires; and that part of it imposing a license tax upon wagons and other vehicles used on the streets, being separable from the proviso and not being dependent upon it, is not invalid.
    Appeal from St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.
    Aefirmeb.

      Randolph Laughlin for appellant.
    (1) The allegation that section 1708 of the Revised Ordinances of 1900 “was at all times mentioned herein in full force and effect” is the averment of a mere conclusion of law, and therefore was not admitted, either by the demurrer, or by the admission made in open court of the truth of the averments of fact. Knapp, Stout & Co. v. St. Louis, 156 Mo. 352; State ex rel. v. Aloe, 152 Mo. 476; Bradley v. Franklin County, 65 Mo. 639. (2) Section 1708 of the Revised Ordinances of 1900 was not, at the time of its passage, or at any time thereafter, “in full force and effect,”, but, on the contrary, is and always was invalid. State ex rel. v. Clifford, 228 Mo. 208; St. Louis v. Cool, 228 Mo. 210.

      William E. Baird and Truman P. Young for respondent.
    (1) The opinion in the case of State ex rel. v. Clifford, 228 Mo. 194, decided only that the entire proviso of section 1708 of the Municipal Code of St. Louis of 1901 was void. It did not decide that the entire section 1708 was void. This is obvious from a reading of the opinion. It is also obvious from the following considerations: (a) The relator’s petition for the writ of mandamus attacked only the proviso. It conceded the validity of section 1708 and asked that a license be issued under that section upon payment of the proper fees, (b) When the case reached this court there was no contention raised in the brief for the relator that section 1708 was invalid in its entirety. The only question was as to the validity of the proviso. (c) The court ruled that the proviso was invalid, but remanded the case with directions to issue a mandamus for the relief asked. This judgment recognized the validity of section 1708 and required the defendant to issue a license under that section upon payment of the proper fees. (2) If this court in the case of State ex rel. v. Clifford, 228 Mo. 194, had. undertaken to declare the entire section 1708 of the Municipal Code of 1901 void, the decision would have been of no effect because the question was not raised upon the record. If a court undertakes to go beyond the issues, the decision is coram non juclice. The court will not sua sponte render a decision upon a legal question, nor will it create issues not raised by the pleadings. Courts can only decide the issues raised by parties litigant.. The judgment of a court, in order to be valid, must rest upon a substantial foundation, in the record. Munday v. Vail, 34 N. J. L. 418; Garland v. Davis, 4 How. 131; Windsor v. McVeigh, 93 U. S. 274; Reynolds v. Stockton, 140 U. S. 254; Seamster v. Blackstock, 83 Va. 232; 1 Freeman on Judgments (4 Ed.), pp. 196, 197, see. 120-0. (3) Section 1708 is in all respects valid except that portion included within the proviso and which attempts to regulate the width of tires. The body of section 1708, exclusive of the proviso, has been in force with little change ever since January 7, 1878, and was held valid in St. Louis v. Green, 7 Mo. App. 468, and St. Louis v. Green, 70 Mo. 562. The invalidity of the proviso does not affect the body of the section. It is an old and well recognized rule that an ordinance or a statute may be void in part and valid in part, where the invalid portion is separable so that it may be discarded and the valid portion may then be enforced. St. Louis v. Dairy Co., 190 Mo. 492; State v. Bock-struck, 136 Mo. 335; .Rockville v. Merchant, 60 Mo. App. 368; Lamar v. Weidman, 57 Mo. App. 507; State ex rel. v. St. Louis, 241 Mo. 231.
   GRAVES, J.

— This is an action by the city of St. Louis to recover from the defendant corporation certain license taxes, upon vehicles operated by it in the city of St. Louis, for the years 1905, 1906, 1907, 1908, 1909, and 1910. The petition contains a count for each year. The first count of the petition is thus outlined in defendant’s abstract: •

The first count of the petition alleges the incorporation of the parties, plaintiff and defendant; that the defendant at all times mentioned in the petition owned and used in the streets and public highways of the plaintiff the number and kinds of vehicles therein stated; that there was at all said times “in full force and effect” an ordinance of the city of St. Louis, known as section 1708 of a revised ordinance of said city, styled “The Municipal Code of St. Louis,” approved April 3, 1900; that by the terms of said ordinance it was provided that there should be annually levied and collected a license tax upon all kinds of vehicles used in the streets or public ways of the city, the following sums, to-wit:
On each wagon drawn by eight or more horses ........$30.00
On each wagon drawn by six horses .................. 15.00
On each omnibus, drag, tallyho coach, lighted vehicle or stage coach drawn by four horses .................. 10.00
On each wagon drawn by three horses ................ 7.00
On each omnibus or wagon drawn by two horses ...... 5.00
On each wagon or cart drawn by one horse ............ 2.00
On each hack or hackney carriage drawn by two horses 5.00
On each barouche, drag, coach, coupe, rockaway, surry, wagon, landau, or other vehicle drawn by two horses 3.00
On each cab drawn by one horse ...................... 2.50
On each barouche drawn by one horse ................ 2.50
On each four-passenger park wagon drawn by one horse 2.00
On each buggy ........................................ 1.50
On each driving cart or sulky .......................... 1.50
On each bicycle, tricycle or velocipede.................. 1.00
On each vehicle not specifically mentioned ............ 1.50
That the defendant, during the year 1905, was the owner of and did use in the streets and public ways of the city the following described vehicles, to-wit:
4 wagons each drawn by one horse,
125 wagons drawn by two horses,
4 wagons each drawn by three horses,
1 wagon drawn by four horses.
That by reason of the facts aforesaid and by virtue of the terms of said ordinance it became and was the duty of the defendant to pay to the city of St. Louis license taxes as follows: On said four one-horse wagons at the rate of $2 each, making' a total of ................................ $8.00
On said 125 two-horse wagons at the rate of $5 each, making a total of ................................ 625.00
On said four three-horse wagons, at the rate of $7 each, making a total of.................................. 28.00
On said one four-horse wagon ........................ 15.00
Making an aggregate amount of ..................$676.00
• Which became due and payable from the defendant to the plaintiff for the license taxes on such vehicles for the year 1905. That demand was made of the' defendant by the license collector of the city of St. Louis to pay the said sum, but that no part thereof has been paid.
Wherefore plaintiff prays judgment against defendant for the sum of six hundred and seventy-six dollars, together with interest and costs.

The abstract before tis alleges that the other five counts were in the same form and prayed judgment for the same sum in each, but the years mentioned were different.

To this petition a general demurrer was filed and overruled, and the defendant refusing to plead further, judgment was entered for the plaintiff for the sum of $4182.63, from which said judgment the defendant has appealed. The city of St. Louis being a party, the jurisdiction is lodged here, notwithstanding the amount involved.

The turning point in the case is the validity or invalidity of the ordinance pleaded. Other incidental questions are. suggested, which with the vital question will be noted in the course of the opinion.

I. At some time prior to April 3,1900 (the counsel for defendant says in 1898),'the city of St. Louis passed what counsel denominates the “Wide-Tire Ordinance.” Counsel for defendant further gives us the information that on April 3, 1900, the legislative branch of the city government of the city of St. Louis “passed an ordinance number 19,991, entitled ‘Ordinance in Revision of the General Ordinances’ which contains nearly 2500 sections, and among others, section 1708 of article 2 of chapter 23 of said ordinance. That this section 1708 embodied and was the Wide-Tire Ordinance of 1898.” ■

In the view we take of the law of this case, we should set out said section 1708 in full. It reads:

“Sec. 1708. License tax on . . . Eegulations. There shall be annually levied and collected a license tax upon all kinds of vehicles, including bicycles, tricycles, and velocipedes, used in the streets or public ways of the city for trade, traffic, pleasure or any other purpose, public or private, except vehicles for pleasure, owned and used by non-residents of the city, and bicycles, tricycles and velocipedes owned and used solely by children under twelve years of age, the following sums, to-wit: On each wagon or truck used for hauling boilers, engines, cable ropes, safes or stone, and drawn by eight or more horses, thirty dollars; on each wagon drawn by six horses, twelve dollars; on each wagon drawn by four horses, fifteen dollars; on each omnibus drawn by four horses, ten dollars; on each stage eo.ach drawn by four horses, ten dollars; on each drag, tallyho, coach or lighted vehicle drawn by four horses, ten dollars; on each wagon drawn by three horses, seven dollars; on each omnibus drawn by two horses, five dollars; on each wagon drawn by two horses, five dollars; on each wagon or cart drawn by one horse, two dollars; on each hack or hackney carriage drawn by two horses, five dollars; on each barouche, drag, coach, coupe, rockaway, surrey, wagon, landau or other like vehicle drawn by two horses, three •dollars; on each cab driven by one horse, two dollars and fifty cents; on each barouche drawn by one horse, two dollars and fifty cents; on each four-passenger surrey drawn by one horse, two dollars; on each four-passenger park wagon drawn by one horse, two dollars ; on each buggy, one dollar and fifty cents; on each driving cart or sulky, one dollar and fifty cents; on each bicycle, tricycle or velocipede, one dollar; on each vehicle not specifically mentioned, one dollar and fifty cents; provided, that from and after the first day of January, eighteen hundred and ninety-nine, no vehicle of any kind or description shall be used on the streets of this city for any purpose whatever unless all the wheels of such vehicle shall be constructed with a width of tire corresponding to the size of an axle on the following scale, to-wit:
“Iron or Steel Axles.
“Vehicles having axles of iron or steel, the wheel shall have width of tires, as follows, to-wit: If the axle is of a width of thickness or diameter of one and one-fourth inches, and tires must be at least one and one-fourth inches wide; if the axle is a width or thickness or diameter of one and one-half inches, the tire must be at least one and three-fourths inches wide; if the axle is of a width or thickness or diameter of one and five-eighths inches, the tire must be at least two inches wide; if the axle is of a width or thickness or diameter of one and three-fourths inches, the tire must be at least two and one-fourth inches wide; if the axle is of a width or thickness or diameter of one and seven-eighths inches the tire must be at least two and one-half inches wide; if the axle is of a width or thicks ness or diameter of two inches, the tire must be at least two and three-fourths inches wide; if the axle is of a width or thickness or diameter of two and one-eighth inches, the tire must be at least three inches ■wide; if the axle is of a width or thickness or diameter of two and one-fourth inches, the tire must be at least three and one-half inches wide; if the axle is of a width or thickness or diameter of two and one-half inches', the tire must be at least four inches wide; if the axle is of a width or thickness or diameter of two and three-fourths inches, the tire must be at least four and one-half inches wide; if the axle is of a width or thickness or diameter of three inches, the tire must be. at least ■five inches wide; if the axle is of a width or thickness or diameter of three and one-half inches, the tiré must be at least five and one-half inches wide; if the axle is of a width or thickness or diameter of four inches, the tires must be at least six inches wide.
“Wooden Axles.
“Vehicles having axles of wood shall have widths of tires as follows, to-wit: If the axle is of a width or thickness of three and one-half inches, the tires must, be at least two and one-half inches wide; if the axle-is of a width or thickness of three and three-fourths inches, the tires must be at least two and three-fourths inches wide; if the axle is of a width or thickness of four and one-quarter inches, the tires must be at least three and one-half inches wide; if the axle is of a width or thickness of four and one-half inches, the tires, must be at least four and one-half inches wide; if the axle is of a width or thickness of five inches, the tire must be at least five inches wide; if the axle is of a width or thickness of five and one-half inches, the tire must be at least five and one-half inches wide; if the axle is of a width or thickness of six inches, the tires must be at least six inches wide.
“Miscellaneous.
1‘ Trucks used for hauling boilers or engines, safes or dimension stones, shall have tires at least six inches wide, and those used for hauling cable ropes shall have tires at least eight inches wide, and such trucks shall be constructed with axles of such lengths that the hind wheels shall be placed at least eight inches further apart than the front wheels thereof. Drays shall have tires at least four inches wide. All carts used for sprinkling of the streets, public ways or'park ways, shall have tires at least six inches wide. If any axle; iron, steel, or wooden, is of a width or thickness or diameter exceeding one and one-fourth inches and shall be of a different thickness, • width or diameter than those described in this ordinance (article), then the tires of such vehicles using such axle shall be in com formity with the next larger axle in diameter. -'-Provided further, however, that any vehicle having rubber tires on all its wheels shall not he required to conform to the above rules as to width of tires.
“Exemptions.
“Any vehicle which shall, prior to the first day of January, eighteen hundred and ninety-nine, be made to conform in respect to its tires to the requirement and provisions hereof, shall, from the date when the use of such tire began, and so long as such use continues until said first day of January, eighteen hundred and ninety-nine, be exempt from payment of the license tax prescribed by this section, but from and after said date all vehicles shall be subject to the provisions of this section, and it shall be unlawful to use on the streets or public ways of the city after said first d'ay of January, eighteen hundred and ninety-nine, any vehicle unless the tires of such vehicles conform to the requirements hereof.
“Sworn Statement Required.
“Prom and after the taking effect hereof, no license shall be issued for any vehicle except on the sworn statement of the applicant showing the width or thickness or diameter of the axle and the width of the tires of the vehicle for which such license is to be used, and after said first day of January, eighteen hundred and ninety-nine, such sworn statement shall show a compliance with the provisions of this section.
“Double Tax Penalty.
1‘ The annual tax herein provided shall be doubled on the first day of April of each year for every license not issued and paid for before said day, and any person or persons, partnership or corporation, who shall after the first day of June of each year, drive or use or permit or cause to be driven or used, on any of the streets or public places of the city of St. Louis, any unlicensed vehicle, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall, in addition to all other penalties and requirements, be fined as in this section hereinafter provided for the violation hereof.
“Penalty.
“Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than ten dollars nor more than two hundred dollars, and each day’s violation hereof shall be and constitute a separate offense.
“Vehicle Inspectors — Salaries—Duty.
“Immediately after the passage of this ordinance there shall be appointed by the license commissioner (now.collector) four deputies, to be known as inspectors of vehicles, who shall each be paid a salary of nine hundred dollars a year. It shall be the duty of said inspectors to ascertain whether the ordinances of the city relating to vehicles and to license taxes on vehicles are observed and to report any violation of the same, and generally to aid the license commissioner (now collector) in the collection of the vehicle license and in the enforcement of the ordinances relating to vehicles, and under the direction of the license commissioner to report to the city attorney all cases of violation of said ordinances and to aid him in the prosecution of the violation of said ordinances, and perform such other duties as the license commissioner may direct.
“License Plate.
1 ‘ The license plate for bicycles, tricycles and velocipedes shall be of the size and form prescribed by the register, and shall be attached to the front part of the steering head at the point above the front fork.”

We felt constrained to set out the ordinance in full because the defendant urges that Division No. 2 ,of this court iu State ex rel. v. Clifford, 228 Mo. 194, declares this whole ordinance void, and for that reason the city has stated no cause of action in its petition. There is some language used by Judge Pox in the Clifford case, which if taken literally, lends sup.port to defendant’s contention. In that case the “proviso” of the said ordinance as contained in said section 1708 is discussed at much length, and at the close of that discussion the learned jurist uses this language :

“ It is true that an ordinance may be valid in part and void in part, and that the valid part may be given effect, if what remains after the invalid part is eliminated contains the essential elements of a complete ordinance. ‘Where, however, an ordinance is entire, each part having a general influence over the rest, and a particular provision thereof is void, the entire ordinance will be so declared. [Kirkwood v. Meramec Highlands Co., 94 Mo. App. 637; Attorney-General v. Lowell, 67 N. H. 198; Chicago v. Gunning System, 114 Ill. App. 377.] This we find to be the case here.
“The proviso of said section 1708 of General Ordinance No. 19991 is undoubtedly void-as being in excess of the charter grant of power, and the proviso having a general influence over the remaining portion of the section, and being inseparably connected therewith, the whole of said section must be declared invalid.”

In the instant case the city contends that there was the inadvertent use of the word “ordinance” in this opinion whilst the court had in mind the “proviso” and not the whole ordinance. This contention of the city would seem to be borne out by the closing direction given in the opinion, thus:

‘“The judgment is reversed and the cause remanded, with a direction to the lower court to grant a temporary writ of mandamus to the relator for the relief asked.”

The defendant in this ease was the relator in the ■Clifford case, snpra. In the Clifford case it sought by mandamus to compel the city license collector to issue licenses for its different kinds of vehicles then being used by it. The date was the year 1905. In the Clifford case, supra, Judge Fox among other things said:

“Relator next alleges that it applied to the defendant for license in the year 1905 for 132 two-horse wagons, fourteen carriages, two four-horse wagons, four one-horse wagons and seven buggies, and tendered the amount of license fees required, but that defendant refused to issue the licenses, assigning as his reason for such refusal that the relator did not accompany its application for such licenses with the sworn statement required by the ordinance showing the width or thickness or diameter of the axles, and width of tires, ■and the vehicles for which such licenses were to be used.”

When it is observed that this court in the Clifford case reversed the judgment nisi (which refused the temporary mandamus) and directed that the circuit court grant to relator a temporary writ of mandamus compelling the license collector' to issue the licenses sought by relator, on the petition presented, or show cause why such should not be done, it would appear that there was no intention to declare the whole ordinance void, but only the “proviso.” Relator had pleaded the full ordinance, and had tendered license fees under it, but had not made the showing by affidavit as to width of tires. If the purpose of the court was to declare the whole ordinance void, then there was left no ordinance, so far as that record showed, requiring a license on vehicles at all, and no good sense in directing a writ of mandamus of any kind. It should be noted that the application for the temporary writ was thoroughly tried out on evidence in the shape of affidavits, in the Clifford case, nisi. On the other hand it appears that in a motion to modify the opinion in the Clifford case this very matter was called to the attention of Division No. 2 of this court,- hut the motion was overruled, without additional opinion. Whether the court thought the opinion was not susceptible of the construction now contended for by defendant, and therefore refused to modify, or whether the -court by its refusal to modify aimed to emphasize the fact that the whole of section 1708 was void, we can only conjecture, every member then sitting in that Division having since passed to the great beyond. If, however, it be conceded that it was ■ the intention in the Clifford case to declare the whole of section 1708 void, then we say that opinion is wrong, and we shall proceed in this case upon the theory, that such is the holding in the Clifford case, although when all things are considered, we have serious doubts of the court intending so to hold. What should have been done in the Clifford case and what should be held in this case we take next.

II. We do not think that the whole of section 1708 of the Revised. Ordinances of the city of St. Louis, should be declared void, and if the Clifford case, supra, should be interpreted as so holding, then such holding is wrong.

We fully concur in that portion of the opinion in the Clifford case, supra, which declares that part of the “proviso” to section 1708 is to be void. We think the reasoning of the court upon that question is well taken. After holding that this “proviso” (not the ordinance as a whole) was not so unreasonable as to make it bad upon its face, or under the proof, Judge Fox then thus proceeds:

“But whether the particular, provision of the ordinance regulating the width of vehicle tires is a valid and reasonable exercise of the power granted the city by the Legislature is another question. The fifth par■agraph of section 26, article 3, of the charter of the city of St. Louis, empowers the municipal assembly to regulate by ordinance ‘the width of the tires of all vehicles for heavy transportation.’ This is an express grant of power for a certain purpose, and must be strictly construed, for where a corporation is empowered by its charter to make ordinances for certain purposes, its power of legislation is limited to the objects specified, all others being excluded by implication. [St. Louis v. Kaime, 180 Mo. 309; New Orleans v. Philippi, 9 La. Ann. 44; Douglass v. Placerville, 18 Cal. 643; Leavenworth v. Norton, 1 Kan. 432; Kyle v. Malin, 8 Ind. 34.] The defendant, however, contends that this express power is merely a corollary of the general power granted to the corporation in another paragraph of the same section of the charter to improve the streets, etc., and to regulate the use thereof, and that the general power so granted is not limited by the special power as to the regulation of the width of tires of vehicles for heavy transportation. That contention does not consist with the rule of construction laid down in the case of Ruschenberg v. Railroad, 161 Mo. 70: ‘When there are two acts, or charter provisions, or ordinances, one of which is special and particular and certainly includes the matter in question, and the other general, and such that, if standing alone, it would include the same matter, and thus conflict with the special act, the special act must be taken as intended to constitute an exception to the general act, and especially is this the law when such general and special acts are contemporaneous.’ That rule is approved in the Kaime case, supra, wherein the court also said: ‘Even though it be conceded that the express grant of power . . . would not prohibit the exercise of the power under a general clause yet such exercise of power cannot abrogate the limitations contained in the express grant. Hence, at last, we are relegated, as to the extent of power which can be legally exercised, to the express grant on the particular subject-, matter to which the legislation is to be made applicable: ’
“Comparing the ordinance with the charter provision on the subject of wide tires, it will be noted that the ordinance nowhere uses the term ‘heavy transportation,’ nor makes any discrimination between vehicles for light and heavy transportation. The charter empowers the corporation to regulate the width of tires of vehicles for heavy transportation only, while the ordinance provision embraces vehicles of every kind and description, whether for light or heavy transportation. As the charter does not state what kind or character of vehicle should be regarded as a vehicle for heavy transportation, it is assumed that the 'Legislature intended that the matter should be left to the discretion of the Municipal Assembly. But there is no way of determining from the words of the ordinance what constitutes a vehicle for heavy transportation.The ordinance simply requires all vehicles having axles of iron or steel of a thickness or diameter of one and one-fourth inches and over to have on their wheels tires of a certain width, corresponding to the size or' thickness of the axle; and to say that the Municipal Assembly intended by that provision to declare that all such vehicles are vehicles for heavy transportation^ would be an arbitrary and unwarranted assumption. We cannot read into the ordinance a thought which the framers thereof may have had, but did not express; nor can we give the words of the ordinance a strained and artificial meaning. The words of the charter are; ‘The mayor and assembly shall have power within the city ... to regulate the width of tires of all vehicles for heavy transportation.’ Under the decisions of this court, this express provision must be held to-be a limitation on the powers of the Municipal Assembly. By section 4160, Revised Statutes 1899, ‘words and phrases shall be taken in their plain or ordinary and usual sense,’ and it is quite plain that the words ‘vehicles for heavy transportation, ’ as used in the charter, means vehicles constructed or huilt for carrying or transporting heavy loads. Contrary to the provision of the charter limited the power of the mayor and assembly to regulate the width of tires of vehicles of a certain class, or for a certain purpose, the mayor and assembly, by this ordinance, attempt to regulate the width of tires of vehicles ‘of every kind and description.’
“In St. Louis v. Bell Telephone Company, 96 Mo. 623, this court said: ‘Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied. ’ [See, also, St. Louis v. Laughlin, 49 Mo. 562.]
“We are of opinion that the proviso of the ordinance in question is in excess of the power granted the city by the charter provision on the subject-matter of the regulation of the width of tires of vehicles, in that it makes no discrimination as between vehicles for light and heavy transportation.”

To this portion of the opinion, and to what was said about the “proviso” not being unreasonable,'we lend our concurrence. But this is as far as we can go, under our view of the law. We have set out this section in full, so that the relationship of all its parts may be seen. When it is studied, it- will appear that the whole proviso might be stricken from the ordinance or rather the section, and still there would be left a valid license ordinance. This first portion of section 1708 (leaving out the proviso) in effect has been an ordinance of the city since 1878. [Vide City of St. Louis v. Green, 7 Mo. App. 468.] Its validity with one exception was upheld in that case, and upon appeal to this court that portion of the Court of Appeal’s opinion was disapproved here, so that this court approved the whole ordinance. . [Vide City of St. Louis v. Green, supra.]

The sole question here is, can we carve out the invalid portions of the proviso, and still have a valid act, and one within the legislative intent? We think so. It is evident that the uppermost idea of the city legislature was to impose license taxes upon vehicles. It is true that in connection with this idea of imposing the license tax, we find attached an idea of regulating the width of tires, in a manner not authorized by the charter, but in our judgment this portion of the section can be stricken out, and there will be left a valid ordinance. In the case of St. Louis v. Grafeman Dairy Co., 190 Mo. l. c. 503, a very similar question arose. In that ease Gantt, J., for the Court en Banc, said:

“If, therefore, the complaint in this ease alleged one or two breaches of valid provisions of the said ordinance, the court erred in quashing the whole action even though the motion was well taken as to other alleged breaches, but it is insisted that the section in question refers to both registration and license, and they are used conjunctively in the section, and are, therefore, not severable, and hence if one of the provisions is invalid then the whole section must fall. We cannot give our concurrence to this contention; that part of section ten of Ordinance 20808 requiring a vendor of cream and milk to register in the office of the Health Commissioner, and that part requiring the payment of one dollar as a registration fee, are clearly severable from the other provisions requiring the payment of a license tax. It has been uniformly ruled by this court that where the provisions of a statute or ordinance are severable and are not interdependent one upon the other, the whole will be not declared void because a part is valid, but the void portions will be eliminated and the valid parts upheld and enforced, provided this will not defeat the substantial object of the enactment. [St. Louis v. Railroad, 89 Mo. 44; City of Tarkio v. Cook, 120 Mo. 1; State v. Clarke, 54 Mo. 17; State v. Bockstruck, 136 Mo. 335.]”

In State v. Bockstruck, 136 Mo. l. c. 353, Sherwood, J., said:

“Now nothing is better settled than that a part of a law may be declared constitutionally invalid, and yet another portion properly separable therefrom, and therefore unexceptionable in every particular. This may be so even though the sound and unsound are in one section together. This is always the rule unless the parts sound and unsound are so mutually related, so blended together, as to constitute an entirety, making it evident that unless the act be carried into effect as a whole, it could not have received the legislative sanction. [Bishop, Stat. Crim., sec. 34, and cases cited.] There seems to be no such indication observable in this instance.”

So we say in the case at bar. It does not appear that the legislative sanction would not have been given to this license ordinance had this proviso as to width of tire been left out. On the other hand it is clear that the legislative thought went out to license taxes and no doubt with the the monetary results . uppermost in mind. These license taxes, as estimated in the briefs, amount to many thousand dollars annually. Later, in the case of State ex rel. v. St. Louis, 241 Mo. l. c. 246, Lamm, J., said:

“We shall not undertake to re-examine or reformulate the learning on the question. The books are full of it and counsel on both sides cite cases decided by this court, and text-writers, showing under what circumstances an unconstitutional and therefore dead provision may be pruned from the main stem of a law without impairing the stem itself. The prying mind can consult the reporter’s head notes for them. There is a very late case, State ex rel. v. Gordon, 236 Mo. l .c. 170 et seq., where the matter was in judgment and the right doctrine is announced. Briefly, the touchstone whereby a correct conclusion is to be reached will be found in correct answers to these questions: Is the entire law built up around the unconstitutional proviso? Are all the provisions of the enactment inseparable, and so interwoven and connected as to be interdependent? Does the statute attempt to accomplish instead of two objects (one valid, the other invalid) only, one object and that one invalid? Does the proviso furnish the inducement, the consideration, the legislative motive for the whole act? Is it apparent that but for the proviso the Porty-fourth General Assembly would not have enacted the law? With the proviso cut away is there left only an incomplete enactment, one not symmetrically rounded out and, therefore, incapable of enforcement? If those questions must be judicially answered yes, then the whole act falls to the ground with the proviso — if no, then the law, bad in part, may be good in part; for the courts in this behalf do not apply the ideas shadowed forth in the metaphors of Paul and Solomon where the one speaks of a little leaven that leaveneth the whole lump, and the other comments on the all-pervading and unsavory. effect of dead flies in the apothecary’s ointment.
“We are cited to a case (Skagit County v. Stiles, 10 Wash. 388) holding that where a part of the law is bad the presumption is generally that the whole is bad. Such a presumption I think of doubtful existence and of little value if existing at all. To the contrary we approach the constitutionality of a law with a strong, even a violent, presumption it is valid. Its invalidity must be made to appear beyond a reasonable doubt and every allowable art, part and act of judicial power should be exercised in so interpreting the law, if possible in reason, that none of it perish by construction. But if that be impossible and some of it, through inherent vice, must perish, do not the separable and independent parts of the law still stand protected by the presumption of validity attending the whole law at the outset? Why not? To a little alter and use a simile of Lord Hobart (Maleverer v. Redshaw, 1 Mod. 35), which I have had occasion to use before in another form, a judge is not to be like a tyrant, making all void when part is void, but like a nursing father, making void only that part where the fault is and preserving the rest if he can.
“We are all of one accord in the opinion that the proviso being cut away as unconstitutional, there was left remaining a perfect, constitutional law capable of •enforcement; that the proviso did not furnish the whole legislative inducement and consideration for the law; that there is no apparent reason why the Legislature would not have passed the law without the invalid proviso ; that there is a main purpose running like a marking thread through the warp and woof of the law and a perfect plan outlined to effectuate that purpose, independent of the proviso; that the proviso is in its nature ancillary, a mere incidental or possible means of effectuating the main purpose of the law, if and only if, conditions were found to exist bringing the incidental ■or ancillary scheme into play; that the enactment may be likened unto a channel in which water runs, the proviso likened unto a canal tapping that channel and taking that water, whereby if the sluice gate be lowered and the canal be dammed at its head, the water naturally takes the main channel again.”

The ordinance before us is readily divided into two parts (1) that portion providing for a license tax upon the several different kinds and classes of vehicles, and (2) regulations as to the construction of the vehicles themselves. One portion is not so dependent ■ upon the other as to require us to say that if one is invalid the whole shall fall. Nor is the proviso portion of this ordinance so connected with the residue of the ,act as to warrant the belief that the city legislature so intended the two provisions as a whole, and would not have passed the first portion, had it known the latter portion was invalid. Tried by every test, we believe that the proviso with reference to tires (the invalid portion of this ordinance) can he stricken therefrom and leave a valid ordinance, upon which the city is entitled to recover against the defendant. For other and fuller discussions of the question, vide State ex rel. v. Gordon, 236 Mo. l. c. 170 ; State ex rel. v. Taylor, 224 Mo. l. c. 474; State ex inf. v. Washburn, 167 Mo. 680; Cooley’s Constitutional Limitations (7 Ed.), p. 247.

There is no other substantial question involved upon this appeal. From what has been said, it follows, that the. judgment nisi should be affirmed. It is so ordered.

All concur. ■


source: Caselaw Access Project

license: Public Domain

text:
    ST. LOUIS TRANSFER COMPANY, Appellant, v. LOUIS ALT and PATRICK J. CLIFFORD.
    Division One,
    April 2, 1914.
    VEHICLE. LICENSE: Mandamus: Substitution of Respondent: Moot Question. Where the court has held in a companion case brought by the city against relator herein to collect vehicle taxes that the Vehicle Ordinance of the city of St. Louis is valid in so far as it requires relator to pay a license tax on each wagon used by him on its streets, and that relator must pay such tax for the past years whether he had a license or not, the question of whether the circuit court erred in permitting the present license collector to be substituted as a respondent in the stead of his predecessor in office, against whom the original mandamus was brought, ashing for a writ to compel the collector to issue him a license in total disregard to the width of the tires of his vehicles, becomes a mere moot question. [See City of St. Louis V. St. Louis Transfer Co., ante, page 476.]
    Appeal from St. Louis City Circuit Court. — Hon. Edwin W. Lee, Judge.

      Appeal dismissed.

      Randolph Laughlin for appellant.
    (1) A motion for a new trial is not necessary to secure a review of a decision on a motion rendered after trial. Shohoney v. Bailroad, 233 Mo. 649. (2) The mandate in this case did not require the circuit court to issue the writ in opposition to the wishes of the relator. The relator was the real party plaintiff, and as such was in control of the suit, and it had the right to dismiss the suit at any time up to the day of trial, and it was error for the court to enter judgment ostensibly in its favor, but in its absence, against its will, without a setting, and without giving it an opportunity to be heard. This error was aggravated by the changed condition of the case, brought about by the decision of this court in State ex rel, v. Clifford, 228 Mo. 194. (3) Independent of the above, it was error for the court to substitute Alt for Clifford as a •party defendant, without giving relator an opportunity to be heard. The petition was limited in its scope to ' the year 1904, when Clifford was license collector and Alt was not, and Alt could not validly be substituted to the place of Clifford in the litigation for the purpose of giving the relief which the Transfer Company sought against Clifford, in the absence of the Transfer Company’s consent. State ex rel. v. Gibson, 187 Mo. 554. Moreover, the denial of the judgment for costs which the Supreme Court had directed to be given against Clifford, and which never was given against Clifford, was a denial of due process of law. State ex rel. v. Judges, 32 L. Ann. 1256. (4) It was error for the trial court to sustain the city counselor’s motion on the very day it was filed. This error was aggravated by the circumstance that that day was the last day of the June term, and that the proceeding was had ■without any setting, and without any notice whatever to appellant or to appellant’s counsel, who had been absent on his summer vacation. Section 1842 was designed to protect litigants from just such abuse of process as this. R. S. 1909, sec. 1842.

      William E. Baird and Truman P. Young for respondent.
    After the decision in the case of State ex rel. Transfer Company v. Clifford and the receipt of the mandate by the circuit court, that court acted correctly in substiting Alt, the then license collector, in place of Clifford, the former license collector, and in then entering up judgment in accordance with the mandate. A writ of mandamus against Clifford ordering him to issue a license would have been a nullity, for he was powerless to do so-. In a suit either by or against a public officer, a substitution of parties should be made wherever the incumbent of the office is changed or where by a change of law the duties are transferred to another officer. Madison Co. v. Candler, 123 N. C. 682; R. S. 1909, secs. 1925 and 1916. In all such cases it is the office itself as a branch of the public service which is the party to the litigation. Armour v. Roberts, 151 Fed. 846. Upon receipt of a mandate from an appellate court the trial court can do nothing but enter up a judgment in accordance with the mandate. Scullin v. Railroad, 192 Mo. 1; Durant v. Essex Co., 101 U. S. 555; Carpet-Sweeper Co. v. Sweeper Co., 72 Fed. 548; Stewart v. Salamon, 97 U. S. 361; Humphrey v. Baker, 103 U. S. 736; Mining Co. v. Billings, 150 U. S. 37; Tourville v. Railroad, 148 Mo. 614, 1.79 U. S. 322.
   GRAVES, J.

— This case was submitted with the ease of the City of St. Louis v. St. Louis Transfer Co., an opinion in which has just been handed down. It is the same case as that of State ex rel. St. Louis Transfer Co. v. Clifford, 228 Mo. 194. To get a clear comprehension of the matter, what is said here should he read in connection with the- opinion in City of St. Louis v. St. Louis Transfer Co., ante, p. 476, and State ex rel. v. Clifford, 228 Mo. 194, supra. When this case was here before, Division No. 2 of this court thus returned it to the circuit court:

“The judgment is reversed and the cause remanded, with a direction to the lower court to grant a temporary writ of mandamus to the relator for the relief asked.”

When the case reached the lower court Clifford was no longer license collector of the city of St. Louis, but Louis Alt had succeeded to that office. Upon the suggestion of the city counselor, the court permitted Louis Alt to be substituted as a party defendant in the case, and understanding from the mandate and opinion of this court that such court should issue its writ of mandamus, the court in obedience to what , it understood to be the judgment and mandate of this .court did issue a writ of mandamus in said case. Thereafter the relator thus attacked the proceeding in the circuit court:

“Now comes the relator, the St. Louis Transfer Company, and moves the court to quash the peremptory writ of mandamus and to vacate the order of substitution issued and made herein on October 1, 1910, for the following reasons:
“(1) Said writ is void on the face of the record herein, as also is said order.
“(2) Said writ was not granted on motion of this relator, nor in the interest of relator, and relator disclaims and repudiates the same.
“ (3) Said writ does not run against the defend-, ant Clifford, who was sued by this relator, but on the contrary runs against one Louis Alt, who was not a party to this controversy, whom this relator has not elected to sue, and of whom this relator desires no present relief, either by writ of mandamus or otherwise.
“(4) Said writ is predicated upon a so-called order of substitution, whereby one Louis Alt purports to have been substituted as defendant herein for the defendant who was sued by this relator. All of which was ex parte and without notice to this relator, and is against the interest of this relator, and is null and void, as is also the writ of mandamus predicated thereon.
“ (5) Said writ constitutes and is an abuse of the process of this court, in this, to-wit: That in thé case of City v. Cool, decided by the Supreme Court, as also in the appeal in this case, it was decided by the Supreme Court, 'that the ordinance which imposes or purports to impose a vehicle license tax on vehicles using the streets of the city of St. Louis is void. Notwithstanding said decision, the said Louis Alt has attempted to collect licenses from this relator under the provisions of said ordinance, but this relator has refused to pay the same. The said Alt now seeks by the procedure' attacked by this motion to commit this relator to the attitude of claiming the benefit of a writ of mandamus against him to compel him to issue licenses, and thereby of estopping itself to deny its liability to pay for such licenses, in order thereby to strengthen his hand in a suit against this relator to recover such licenses, which the said Alt has threatened to bring.
“Wherefore, this relator prays that the said writ may be quashed, and the said order of substitution may be vacated.”

From an adverse judgment upon this motion the relator appeals.

We shall not deal at length with the question urged in this record. Suffice it to say that the disposition which we have made of the case of City of St. Louis v. St. Louis Transfer Co. renders this case a mere moot case. Relator was extremely anxious for a writ of mandamus against the license collector of St. Louis until it became seized with the idea (whether right or wrong, we do not say) that this court had declared the whole of section 1708 of the ordinance of the City of St. Louis void. Up to that time it had been perfectly willing to pay the license tax, and have the court compel the issuance of the license. We have said in the case of the City of St. Louis v. The St. Louis Transfer Company that it must pay the license taxes, not only for the year 1905, involved here, but for several subsequent years, and that opinion not only affirms the right of the action of the trial court in the instant case, but renders the license for the year unnecessary. Upon the whole this case becomes a mere moot case, and we will dismiss the appeal of the relator herein. It is so ordered.

All concur.


author: LAMM, J.

text:
    MARGARET D. POCOKE and JOSEPH POCOKE v. E. M. PETERSON, Appellant.
    Division One,
    April 2, 1914.
    1. EVIDENCE: Compromise: Sale Under Execution: Refusal to Accept Amount of Judgment Debt. Testimony of a compromise, as such, is not admissible; but where plaintiffs bring suit to set aside a sheriff’s deed, and to enjoin the defendant from taking possession thereunder,- on the ground that the property was a homestead, evidence that the plaintiffs, on discovering the property had been sold by the sheriff and defendant’s attempt to take possession, tendered him the amount of his judgment with interest, costs and attorney’s fees, and that he refused the tender, points straight to the fact that defendant is standing on his cold legal right by virtue of his sheriff’s deed; and if such evidence had been admitted, a judgment for plaintiffs would not be reversed because of its admission, unless it further appeared that the decree has no other basis in equity.

      2. PLEA IN ABATEMENT: Motion to Set Execution Sale Aside: Suit for Same and Injunction. The rule that a subsequent suit abates because of a pending suit applies only when the plaintiff is the same person and both are commenced by him. A suit to set aside a sale under execution on the ground, that the land was a homestead and to enjoin defendant from taking possession under his sheriff’s deed cannot be held to be barred by the fact that in the original suit in which defendant obtained judgment against one of the plaintiffs they filed a motion to-set aside the execution sale on the same grounds, the parties not being the same. Besides, the cause of action is not the same in its entirety.
    3. -: -: -: No Notice. Whether or not a plaintiff is in court in a suit upon a motion to set aside the execution sale thereunder, filed by defendants after the judgment term, until notice is served upon him, is adverted to, but not decided,because the plea of abatement is ruled adversely to him on its merits.

      4. HOMESTEAD: Abandonment: Intention: Removal of Household Goods. Abandonment, during the life of the housekeeper, is a composite fact, made up of two elements, namely, an intention to abandon and an external act by which the intention is-carried into effect. A removal of all or a part of the household goods and a storage or use of them elsewhere, with a present clearly established intention to return to the homestead and in the meantime to rent the property from month to month, is not an abandonment. [Criticising the d-icf-im in St. Louis Brew. Assn. v. Howard, 150 Mo. 1. c. 451, where it is in effect said that the intention to return cuts no figure in abandonment.]
    5. -: Sale Under Execution: Equity: Cloud on Title: Threatened Possession. The householder does not have a complete remedy at law where his homestead has been sold under execution and the purchaser is threatening to take possession-under his sheriff’s deed; but a suit in equity is available to-remove the deed as a cloud upon the title and to restrain the purchaser from taking possession.
    6. -: - Fraud. Where a homestead, acquired originally without fraud by record title and actual occupancy, and within the statutory value, actually existed when the debt was made, then a gift, a voluntary conveyance or any form of alienation, is of no concern to creditors.
    7. -: -: Conveyance to Wife: Paying Existing Lien. Although the head of a family, directly or indirectly, causes or permits the title to his homestead to be put in his wife without any valuable consideration moving thereto or between them, even though his motive be never so fraudulent, the creditor cannot complain so long thereafter as the property is actually used as a homestead. If the homestead, within the statutory value without any liens thereon, actually existed at the time the head of the family made the debt for which defendant obtained judgment against him, it is no concern of said defendant that at a foreclosure sale under a deed of trust the husband, as the agent of his wife, bought in the property, and had the trustee by his deed convey it to her, paying to him $300 for the purchase price, and she paying the balance by executing a mortgage thereon -to secure notes signed by her and him. Even admitting that the husband took $300 of his own separate money and applied it on the bid at the trustee’s sale, he merely took his own funds to pay his own debt to an existing debtor — to extinguish a mortgage on his homestead.
    8. -: Paying Existing Lien: Preferring Creditors. Where the homestead is within the statutory value and size, the householder may borrow money to pay an existing mortgage thereon, or use his other money to pay such existing debt, without jeopardizing his homestead. A debtor may prefer a creditor, although the creditor be one who has a mortgage on his homestead.
    9. -: Sale Under Execution. An execution sale of a homestead within the statutory value and size, whether mortgaged or not, whether it has been conveyed to the wife with the intention to defraud creditors or not, is void and conveys no title.
    Appeal from Buchanan Circuit Court. — Hon. W. K. Amick, Judge.
    Aeeikmed.

      Broaddns <& Grow for appellant.
    (1) It is undisputed that Pocoke purchased this property subject to a deed of trust and afterwards borrowed money from various persons, giving deeds of trust to secure same; the property was sold under the first deed of trust for $1565, which was the exact amount of money due on notes secured by deeds of trust on the property and at that time the title to the property passed out of Joseph Pocoke and Mrs. Po-coke became the purchaser thereof at the sum of $1565, her husband borrowing $1250 as a part of the purchase price and paying the balance, so that Mrs. Po-coke did not in fact inyest five cents in this property, her husband having borrowed $1250 and paid the balance of the purchase price out of his own funds, so that clearly Mrs. Pocoke holds the property in trust for the benefit of Pocoke and even if he had been occupying it from August 1, 1910; the date of recording the deed, until levied upon, he could not have claimed homestead right in the property because the debt due appellant by Joseph Pocoke was contracted on the 1st day of July, 1910, and the sale on execution conveyed good title to appellant and the court therefore erred in excluding the sheriff’s deed. R. S. 1909, sec. 6711; Bank v. Pry, 216 Mo. 24; Scharff v. McGaugh, 205 Mo. 344; Jones v. Hogan, 135 Mo. App. 347; Adams v. Gosson, 228 Mo. 566. (2) In any event the interest in the real estate represented by the sum of $315 paid by Mr. Pocoke on the purchase price of the real estate is subject to execution, as Mrs. Pocoke is certainly trustee for the benefit of her husband to that extent. Joseph Pocoke lost all homestead rights in the real estate in controversy on the day of the sale and the fact that he purchased the real estate at the sale and caused the title to be placed in his wife, does not give him a homestead right in the property as against appellant. The evidence of occupancy by the Pocokes of the property in controversy prior to August 1, 1910, therefore was clearly erroneous. Pearman v. McKee, 79 Mo. App. 210; Casebolt v. Donaldson, 67 Mo. 308; Elstroth v. Young, 83 Mo. App. 253. (3) Under the allegations of this petition respondents had a complete and adequate remedy at law for the reason that if the property sold was the homestead of respondent the déed is absolutely void and would have been no bar in ejectment. Jewell v. Boardman, 181 Mo. 647; Buffington v. Corty, 195 Mo. 490. (4) Under all the evidence in this case the court should have found that there was no intention on the part of the parties to occupy the real estate in controversy as' a homestead and clearly they were not occupying it at the time the execution was levied. Finnegan v. Pundeville, '83 Mo. 517; St. Louis B. Co. v. Howard, 150 Mo. 445. (5) The court clearly erred in permitting respondents to prosecute the present action while the motion in the original case of Peterson v. Pocote was still pending and undetermined. Michelin T. Co. v. Webb, 143 Mo. App. 679; Graham v. Lee, 69 Mo. 339.

      George W. Groves and. O. W. Watkins for respondents.
    (1) Creditors cannot look to exempt property for the payment of their debts. Moore v. Wilkerson, 169 Mo. 334; Chance v. Jennings, 159 Mo. 544; Banking Co. v. Brown, 165 Mo. 32; Hoselton v. Hoselton, 166 Mo. 182. The sale by the sheriff in this case was void and conveyed no title. Creech v. Childers, 156 Mo. 338. (2) A conveyance of a homestead, direct or indirect, from husband to wife, even without consideration, is good, and the husband and wife have all the rights of homestead in the property. Moore v. Wilkerson, 169 Mo. 334; Davis v. Land, 88 Mo. 436; Bank v. Guthrey, 127 Mo. 189; Kendall v. Power, 96 Mo. 142; Holland v. Kreider, 86 Mo. 59; Bank v. Brown, 165 Mo. 32. (3) It is immaterial whether in redeeming from trustee’s sale.Pocoke took the title in the name of himself or that of his wife. Spratt v. Early, 169 Mo. 357. Mrs. Pocoke had a right to claim a homestead in this lot. Sharp v. Stewart, 185 Mo. 518. The purpose of the homestead law is to protect the wife and children, if any, and not the husband alone. Meyer Bros. v. Bybee, 179 Mo. 354. (4) If the title to the homestead is in either husband or wife, they have a right to keep it free and clear of their liabilities except as against such liens as they may voluntarily place thereon. Peake v. Cameron, 102 Mo. 568; Macke v. Byrd, 131 Mo. 691; Ratliff v. Craves, 132 Mo. 76. The right of homestead was not lost by reason of executing deeds of trust. Worley v. Hicks, 161 Mo.' 340; Burton v. Look, 162 Mo. 502. (5) There was no abandonment of the homestead. Bank v. Brown, 165 Mo. 32; Lawson v. Iiammond, 119 Mo. App. 480; Rose v. Smith, 167 Mo. 81. There being no such thing in law as a fraudulent conveyance of an exempt homestead, and abandonment not having been pleaded, the question of abandonment cannot be considered in this case. Bently v. Blake, 153 Mo. 675; Bank v. Brown, 165 Mo. 32.
   LAMM, J.

— From a decree in plaintiff’s favor in the Buchanan Circuit Court, cancelling a sale on execution and a sheriff’s deed of real estate on such sale, with ancillary injunctive relief, defendant appeals. Questions here are of a scope seeking both pleadings and facts. Attend to them.

Plaintiffs married in January, 1909, and sue as husband and wife on the eleventh day of July, 1911, by a bill in equity alleging, in substance, thus: At times mentioned they occupied lot thirteen in block twelve in Brookdale addition to the city of St. Joseph as a homestead, said lot being less than eighteen square rods of ground and not to exceed $3000 in value, encumbered by deed of trust liens. Subsequently, while such homestead existed, defendant obtained a judgment against them for fifty dollars, on which execution issued and was levied on said lot; that a sheriff’s sale was made thereunder on advertisement, and defendant thereat was the purchaser, on a bid of ten dollars, on July 7, 1911, obtaining a sheriff’s deed therefor; that plaintiffs had filed their deed for record prior to the time the debt was contracted which was merged in defendant’s judgment; that the sheriff, failing to apprise plaintiffs of their right to hold the property as exempt from execution and of their exemption rights under sections 2179, 2180, and 2183, Revised ■Statutes 1909; failed to have the property appraised; that neither defendant nor the sheriff notified plaintiffs of their right to claim said property under the homestead laws of the State, and that by reason of the premises the levy of said execution was void, etc.; that defendant, under his execution purchase, now claims to own the lot and denies to plaintiffs their exemption and homestead rights; that he is threatening to take forcible possession under his deed and is about to do so. The bill also alleges equitable grounds for the interference of equity by injunction against his taking possession, and against his setting up or ■claiming any right, title or interest in the lot. The bill next sets up grounds for relief by adjudging and quieting title under former section 650, now section 2535, Revised Statutes 1909, and to that end avers that plaintiffs are the owners of the lot and that defendant claims some right, title or interest, etc. The prayer was for a decree determining title, and setting aside the sheriff’s deed and sale, .and for an injunction.

A temporary injunction issued, we infer, on that prayer.

To that bill defendant answered, denying all its allegations and further by way of affirmative matter, that the plaintiff, Joseph, on the sixth day of July, 1910, purchased said real estate in the name of his wife under foreclosure of a deed of trust; that the debt for which defendant secured judgment on which execution issued, followed by the levy, sale and sheriff’s deed, was contracted prior thereto. It is charged, moreover, that Joseph’s said purchase in the name of his wife was for the purpose of defrauding existing creditors and that he did not acquire a homestead by that purchase; that plaintiffs filed a motion on July 10, 1911, “in the original cause,” stating the same facts now in their bill in the instant case, which motion is still pending and undisposed of and by reason thereof the court “has no power or jurisdiction to adjudicate the issues while the other cause is pending. ’ ’

To that answer plaintiffs replied denying its allegations.

Presently defendant filed a motion to dissolve and the cause was tried on that motion and the merits.

The facts follow, to-wit:

The lot has a fifty-foot front and a back run of 120 feet. There is an old frame six-room house on it, not modern, and the value of the premises was less- than $3000. The case may proceed on the assumption that neither the extent nor value of the ground prevents it from being a homestead in a city of the size of St. Joseph, to-wit, one of over 40,000 souls. [R. S. 1909, sec. 6704.]

For several years prior to 1909 plaintiff Joseph, a single man, owned the lot by a title of record. As said, in January,- 1909, ¡he married his coplaintiff, Margaret D., and at once commenced keeping house in said residence. There is no dispute but what from that time the Pocokes actually lived on the property as a homestead until the second or fifth day of May, 1911. It is contended by defendant and denied by plaintiffs that the homestead was abandoned at the date last mentioned. The record in that behalf will be set forth presently.

Going back a little, at the time of the Pocokesy marriage, the property was encumbered by two deeds of trust for borrowed money. Presently after the marriage another deed of trust was put on it for a like purpose. At a certain time the debt secured by one of these three deeds of trust was paid off and satisfied of record, so that on July 5, 1910, two of them remained unsatisfied. The notes secured by them- were all owned by one beneficiary. The interest being in default, said beneficiary procured the trustee to foreclose and on that day (July 5,1910) the trustee knocked down the property to the wife, Margaret D. Pocoke, at such foreclosure sale on her hid (made through, her husband) at a sum sufficient to satisfy the liens of both deeds of trust, together with the cost and’ expense of the sale, to-wit, $1565 in all. On that bid plaintiff, Joseph, out of his own means, paid $300, and his wife, the bidder, through him as her agent, secured a loan on the lot from an outsider for the balance of the bid. The proceeds of that loan (one made by the wife and husband) plus the amount paid in by the husband paid the bid, and on July 6, 1910, the trustee made a deed to Margaret D. The record shows that it took several days to complete the transaction, that the deed was delivered on such consummation and was filed for record on August 1, 1910. The testimony indicates that the property was bid in in the name of the wife to preserve a home for her free from the vicissitudes of fortune. It further indicates that in 1910 the Pocokes had fallen into financial distress, and that, on a date not disclosed by the record, the plaintiff, Margaret D., took the benefit of the bankrupt act.

(Note: In their brief counsel for defendant state that Mrs. Pocoke was declared a bankrupt in July, 1910, but we see no record evidence of that. Nor is it material since Mrs. Pocoke claims nothing by reason of a discharge in bankruptcy.)

Again going back a little to pick up another thread, it seems that on July 1, 1910, four or five days prior to said mortgage foreclosure, plaintiff Joseph became indebted to defendant for a commission on a real estate deal. Denying liability, he was sued in a justice court and on September 17,1910, say ten weeks after the mortgage foreclosure, defendant obtained a judgment against him for fifty dollars. On that day in that cause he took an appeal to the circuit court and his wife, coplaintiff, Margaret D., signed his appeal bond so that it was on that date and not before that Margaret assumed a relation of debtor to defendant. Six or seven months later, in April, 1911, on a trial in the circuit court on that appeal, judgment was rendered against Joseph for the debt and against his wife on the appeal bond for fifty dollars and costs. On June 12, 1911, execution issued against both on that judgment. On the same day on that execution the sheriff levied in the lot and on July 7, 1911, he sold it under the hammer to defendant on his bid of ten dollars, and executed a sheriff’s deed. The execution defendants or neither of them (plaintiffs here) had any actual notice of the issue of the execution, its levy on the lot, the advertisement under it or the sale until after the sheriff’s deed was executed. Neither the sheriff nor defendant Peterson made any attempt to comply with the homestead or exemption statutes by apprising the owners of their exemption rights or by appraisal of the property or by setting off a homestead.

Defendant Peterson did not testify in the instant case. There was testimony indicating that he had attempted to get possession of the property, harbored a design to that end and would have acomplished it if it had not been for the institution of this suit. In the face of his failure to deny that testimony, it may be assumed that he was about to take possession without resorting to the law on the strength of his sheriff’s' deed and a claim of ownership to the exclusion of plaintiffs’ rights, if any.

In this connection there was testimony offered by the Pocokes to the effect that on their discovery of the sheriff’s sale and deed and when the controversy over the possession arose, they tendered defendant the amount of his judgment with all interest, costs and attorney’s fees, which offer he refused to accept. The court, on defendant’s objection, excluded this testimony. In passing we observe that while testimony of a compromise, as such, was not admissible, yet a refusal to accépt full satisfaction of his claim points with an unerring finger straight to the fact that he was standing on the bare letter of his cold legal rights by virtue of his sheriff’s sale and deed, rather than on any equities in his favor. If the chancellor had allowed the testimony to go in, as illustrative of that fact, we would not have reversed his decree in favor of the Poeokes because of error in that behalf materially affecting the merits unless it had further appeared that his decree had no other basis in equity.

One of the contentions of Peterson is that the homestead, if any, was abandoned. Going back a little for the facts upon which that contention hinges, they are, to-wit: Joseph Pocoke was a travelling man, handling a line of goods as a salesman. Early in the year 1911, while he and his wife were “keeping house” and living in the property, as they had been since their marriage, his business as salesman called him away from St. Joseph for a week at a time — sometimes more, sometimes less. "While things were in this fix, in February, 1911, Mrs. Pocoke’s mother fell sick and Mrs. Pocoke went to her home in the city of St. Joseph to minister to her in her affliction, locked up her own house in the emergency and left it as it was. "VVe cannot make out whether Joseph, during the five or six weeks of his mother-in-law’s sickness, slept in his own or in his mother-in-law’s house on his trip returns, but we take it as immaterial on the question of abandonment. Presently, Mrs. Pocoke, relieved as her mother’s nurse, returned to her own home and from thence up to the early part of May, 1911, the Poeokes resided there. The things, we are now about to relate are those, as we understand it, on which Mr. Peterson bases his contention of abandonment, viz.: It seems Mrs. Po'coke, as an experiment, concluded to go “on the road” with her husband •and carry a side line of ladies’ garments to test out '-the question whether by their joint efforts as salespeople they could not recoup their fortunes sufficiently to pay debts then so pressing on them as to put them in hard lines. Their home was in St. Joseph and there is not a particle of testimony they intended to remove their residence from that city, or that they harbored the intention to acquire a new homestead or permanently give up keeping house in their old home. It is all contra. The plan contemplated was precisely the one that Mr. Pocoke had been following theretofore, to-wit, trips of a few days out, possibly a week, now and then two, over their sales territory and then a return to St. Joseph to be presently followed by a like trip, and so on and so on. The question was what they would do with their home while this experiment was in making. We infer their tentative plan was to lock it np between trips and return to it at the end of each trip as Joseph had done previously. But the mother-in-law persuaded the wife that it was not safe to leave her things in the house and both of them go away from the city for a week at a time. She offered, while they were trying out the plan, to let them have a room to store their goods for pay and a room in which to stay over night on their returns from such trips. This plan being adopted, early in May, 1911, say the second or fifth, they took to their mother-in-law’s house in St. Joseph nearly all their furniture and stored it with her. They took a room there and ■occupied it at the end of each trip — a room partly furnished by them and partly by the mother. They left in their own house some of their personal belongings, .a telephone, bicycle, carpets, window shades, coal and wood, and there is not a particle of substantial evidence they permanently abandoned it as a home or ■did not intend to return, there to live presently. The arrangement was a temporary one. The affair of the wife’s going on the road with her husband was a mere experiment to be soon tested out and, whether it ■succeeded or not, it was their plan to return to. their own home after the “busy season” was over. There is testimony that they refused to give a long lease on it, but were willing to rent it from month to month if they had succeeded in getting a suitable tenant, which latter thing never happened. After they learned of defendant’s sale under execution in July, 1911, one or both of them resumed sleeping at their home on coming in from their trips. "We think the foregoing states the facts on the question of abandonment for appellant Peterson as favorable as the record will allow.

One thing more. On June 10, 1911, plaintiffs here, one day before the bill in the instant case was filed, filed in the original case of Peterson v. Pocoke (the one in which the judgment was rendered on which Peterson’s sheriff’s deed was based) a motion to set the sale aside. This is the motion referred to in defendant’s answer in the instant case and claimed therein to be operative to oust jurisdiction. The fact does not appear one way or the other on the record' whether this motion was filed during term time or after the term had elapsed at which the sale was made. Its caption runs: “In the circuit court of Buchanan county,” mentioning no term. Nor is there anything in the record to show that it was filed by the permission of the court or in open court or that the original case of Peterson v. Pocoke was still pending. The motion was offered in evidence by defendant in the instant case and the bare offer shows that it was “filed June 10,1911, by the clerk of this court in case number 20,786,” which number was the number of the former case of Peterson v. Pocoke. There is nothing to show that Peterson was notified of that motion or that the original cause was redocketed or that the motion was docketed by leave or that any entry was made in regard to it by the court. On plaintiffs’ objection the motion was not admitted in evidence and defendant saved an exception. The motion set up a homestead, claim of exemption from levy and sale under an exeeution, averring that the lot described was a homestead; that it had been sold under execution without notice to defendants, to-wit, Joseph Pocoke and M. D. Pocoke, and without any appraisement and without setting off a homestead, etc. The movents described themselves as “defendants.” The motion winds up with the assertion that “affidavit, oral and record evidence will be offered on the hearing of this motion.”

If any further record facts be essential to material questions raised, they will appear further on in due course.

The court overruled the motion to dissolve the temporary injunction and, as said, decreed for plaintiffs.

We are of opinion that decree stands for affirmance, because:

(a) Of the motion in the original case to set the sale aside.

It is argued for appellant that when respondents, one day before they instituted the instant case, filed the motion in question with the clerk (entitled in the original case of Peterson v. Pocoke, in which case Joseph Pocoke was defendant and Margaret D. Pocoke was not strictly a defendant but was insofar forth a. party through her suretyship on the justice appeal bond that judgment could go against her for any amount found due at the trial anew in the circuit court,, R. S. 1909, sec. 7589) the mere filing of that motion constituted another and prior pending action between the same parties for the same cause in this State, hence a plea of the pendency of that motion was a good plea in abatement. [R. S. 1909, sec. 1800; ibid., sec. 1804.] We do not agree to that. The reason of the law is the life of the law. Now, the reason of the law in that behalf is its abhorrence to a multiplicity of actions. The subsequent suit is abated because it is deemed unnecessary and hence vexatious and oppressive, the maxim being that no one ought to be twice vexed for one and the same cause; but the rule only applies when the plaintiff in both suits is the same person and both are commenced by himself. It does not apply to cases where there are' cross-suits by a plaintiff in one who is defendant in the other. In such cases as that it cannot be said that either is prosecuting two actions against the other within the rule. [Rodney v. Gibbs, 184 Mo. l. c. 10; Long v. Coal and Iron Co., 233 Mo. l. c. 734-5.] The plaintiffs in the instant case filed their motion with the clerk in the original case as parties defendant, here they prosecute as plaintiffs. This fact took them outside the rule as announced in the Rodney and Long cases.

Besides that (and closer home) the cause of action was not the same in its entirety. The relief sought in the equity suit is broader and deeper going than could have been granted or was asked on the motion, and the elements constitutive of the whole cause of action in equity differ in essential respects from that in the motion.

The point is disallowed to appellant and in leaving it we make this further observation, viz.: While we have ruled on its merits, yet we reserve the question whether after a judgment term, as here, Peterson was in court on that motion without notice and whether, because of that fact, there was any action pending at all. “It is a cardinal principle, that whenever a party’s rights are to be affected by a. summary proceeding, on motion in a court, that party should be notified, in order that he may appear for his own protection.” [George v. Middough, 62 Mo. l. c. 551.] Notice (when not an express).is an implied necessity in due process. [State ex rel. v. Walbridge, 119 Mo. l. c. 394 et seq.] Our code provides a scheme for giving notice. [R. S. 1909, sec. 1788 et seq.] Let the question be reserved to be ruled in some case breaking on it.

(b) Abandonment of the homestead.

It is argued for appellant that the homestead was abandoned. But assuming for present purposes that a homestead once existed, we do not agree that the facts show abandonment. We are concerned in this case with the question of abandonment while the homestead is an exemption right, i. e., during the life of the housekeeper or the head of the family, and not with abandonment after the homestead became a vested right in a widow and minor children, which has an essentially different quality. Abandonment, as we are dealing with it, is a composite fact, one element visible, the other sounding in intention, motive. It is a fact made up of an intention to abandon and the external act by which the intention is carried into effect. These two elements must conjoin and operate together or, in the very nature of thing’s, there can be no abandonment. [Strother v. Barrow, 246 Mo. l. c. 250 et seq.; Hickman v. Link, 116 Mo. 123.]

As the instant case is in equity, the light of a guiding principle may be profitably hung out to direct us to the right goal, viz., “It is a rule of equity as old as its establishment that courts of equity look to the substance and not to the shadow, look to the right and not to the form any transaction may have taken.” [Rose v. Smith, 167 Mo. l. c. 87.]

To intend to rent a homestead fium month to month during a temporary absence does not constitute abandonment where the present intention to return, exists. So, a temporary absence for social purposes, or because of sickness or business distress or for ex-, perimental business or school purposes, with no present intention to acquire a homestead elsewhere, does not constitute abandonment in the eye of the law. A removal of all or part of the household goods and a storage or use of them elsewhere with a present clearly established intention to presently return to the homestead, is not an abandonment. Abandonment of a homestead has been held not to exist in cases where the facts in judgment, relied on as tending to show abandonment, were much more emphatic in time and character than in the case at bar. Without swelling this opinion by an attempt to analyze them, or by quoting from them, we rule that under the doctrine of such cases (to-wit, those cited infra) and the general principles heretofore announced, there was no abandonment on this record, which pronouncement the curious may verify by reading with discriminating diligence : Bealey v. Blake, 153 Mo. l. c. 674 et seq.; Duffey v. Willis, 99 Mo. 132; Spratt v. Early, 169 Mo. l. c. 369; Seilert v. McAnally, 223 Mo. l. c. 517; New Madrid Banking Co. v. Brown, 165 Mo. l. c. 35 et seq.

There is some language in St. Louis Brew. Ass’n v. Howard, 150 Mo. l. c. 451, to the effect that the intention to return cuts no figure in abandonment. It is there said that it is “a visible 'occupancy of the premises as the head of a family at the time of the levy of a writ which fixes the homestead rights of the defendant. . . . There is no other way in which it can be made to appear beyond cavil, question or possibility of fraud on creditors than by actual, visible occupancy.” Besides being unnecessary to the case in judgment, that language is unhandsomely and unhappily narrow and sour as a rule of homestead law. Strictly speaking, by the letter of that pronouncement, the head of a family would lose his homestead if at the instant of an execution or attachment levy he was absent over night or had gone on a visit, or was absent under any stress without a particle of intention to stay away or abandon his homestead, contra with an abiding animus revertencli strong upon him. If that were the law a homestead right would hang dangling on a weak, a slender thread indeed. To those the law holds in professed tender regard, to-wit, the homeless ones who are encouraged to get homes and keep them, it would be a Barmecide feast elaborately spread with ostentation but with nothing to it worth while. It would be a reproach to the law. That dictum, taken literally and standing alone, is opposed to the whole philosophy, and the harmonious trend of the doctrines of the cases cited supra, and is in the very face of a cardinal rule steadily applied in construing homestead exemptions, to-wit, that from highest reasons of public policy and social justice homestead laws are favored by courts and are always to be construed with liberality to further their benign purpose in creating self-reliant homeowners, rooted to the soil. They exist for the benefit of homestead debtors, not of creditors. [Balance v. Gordon, 247 Mo. l. c. 124 (where many cases are cited.)] .

The learned judge who let fall the language quoted, himself refused to follow that dictum and ruled otherwise in subsequent cases (e. g., in New Madrid Bank. Co. v. Brown, 165 Mo. l. c. 36 et seq. and in Bealey v. Blake, 153 Mo. l. c. 674 et seq.). He held finely to liberal views on homestead laws as his writings verify (vide, his dissent in Keene v. Wyatt, 160 Mo. l. c. 9 et seq.). What he said in the Howard case must be read with the facts, in that case, and the whole trend of his discourse. [State ex rel. v. St. Louis, 241 Mo. l. c. 238 et seq.]

(c) Of a complete remedy at law.

It is argued for appellant that plaintiffs must be cast because they have a complete remedy at law. Observe, this argument travels on a dangerous theory to appellant, to-wit, the theory, as of course, that if a homestead right existed at the time of the levy and sale, then, on the very face of the record, the sale was invalid and the deed passed no title; hence, there was no call to seek an equitable remedy against the sale and deed, but if plaintiffs were disturbed in their possessory rights, ejectment would be available to them. -Undoubtedly a doctrine exists springing from Aristotle’s definition of equity, to-wit, the correction of that wherein the law hy reason of its universality is deficient, to the effect that where there is a plain, complete and present remedy at law equity will not lend her aid. But that doctrine is not applied where the life of the hill is to remove a hurtful cloud upon a land title; for equity has exclusive jurisdiction in that behalf ; nor is it applied to defeat a proceeding in equity to clear up a title where the “defect is such as to require legal acumen to discover it, whether it appears on the deed or proceeding or is to be proved aliunde” [Jewett v. Boardman, 181 Mo. l. c. 656 et seq.; Bank v. Evans, 51 Mo. l. c. 345.]

Moreover, to oust jurisdiction in equity the remedy at law must be so complete that it attains the full end and justice of the case, reaching the whole mischief and securing the whole right of the party in a perfect manner at the present time and in the future. [Hanson v. Neal, 215 Mo. l. c. 279 et seq.] Under that rule there is lack of substance in appellant’s contention. Must these plaintiffs surrender possession to Peterson .in order to have a chance to turn about and test out their right at law to possession and title by ejectment? Must they lie by supinely and await a suit by Peterson? Must the cloud of an illegal sale and an invalid deed remain as a clog on their title to the stagnation or alienation and to the depression of the value of their property till he moves? Must a cloud remain on one’s homestead to subserve the by-ends of speculators who fatten on lurking shadows and defects in land titles and are loth to have them cured or removed? It would be lame and halting equity that could not reach such situation with a remedy.

"We rule the point against appellant.

(d) Was there a homestead {and herein of fraud) ?

(1) Taking the question of abandonment as already decided, there can be no doubt about the existence of a homestead. Long prior to the existence of defendant’s debt,.Pocoke married, became the head of a family and established his home on the property in question, then owned by him by a title of record. The testimony shows that in both dimensions and value it was a homestead if there had been no mortgage liens upon it whatever. The whole lot, to its full value, was exempt from levy of executions or attachments, liens or no liens. The existence of those liens, therefore, is unimportant so far as a homestead right is concerned. To diminish the liens increased the homestead’s value. To satisfy them left the homestead intact and worth still more.

(2) It is argued, however, that there is such fraud shown as invalidates the homestead. We cannot agree to that. Fraud, to be actionable,' must result in injury. Assuming the existence of a homestead, as here, acquired originally without fraud, as here, then a gift, a voluntary conveyance or any form'of alienation of the homestead (call it fraud if you will) is not a particle of concern to creditors. This is so because the homestead is so far forth forbidden fruit to the creditor that he may not pluck or eat thereof, hence it is as nothing to him — hence, Ex nihilo nihil fit. Accordingly it has been ruled over and over again that although the head of a family directly or indirectly causes or permits the title to his homestead to be put in his wife without any valuable consideration moving thereto or between them (let his motive be ever so fraudulent), yet so long thereafter as the property is actually used as a homestead, the creditor cannot complain that the title was put in the wife. The “fraud” does not injure the creditor. Accordingly it is further held that an execution sale of the homestead under the circumstances we are dealing with is void and conveys no title. [R. S. 1909, sec. 6704; Bank v. Guthrey, 127 Mo. 189; Kendall v. Powers, 96 Mo. 142; Kessner v. Phillips, 189 Mo. l. c. 530; New Madrid Banking Co. v. Brown, 165 Mo. l. c. 38; Rose v. Smith, 167 Mo. l. c. 86; Spratt v. Early, 169 Mo. l. c. 370; Vogler v. Montgomery, 54 Mo. 577 (a leading case).]

Let it be conceded to appellant, then, as the most favorable view possible to him, that the transaction by means of which Mrs. Pocoke acquired title was merely colorable, yet, in that view of it, in the law’s eye it left the homestead all the while the same homestead it had been before (Kendall v. Powers, 96 Mo. l. c. 145, and cases supra), no more and no less.

Appellant’s learned counsel with animation made the claim at our bar that Mrs. Pocoke did the grievous wrong of “taking the benefit of the bankrupt act to become a holding company” for the homestead title. Why she went to that trouble when the homestead holds sans bankruptcy and sms any artificial receptacle we do not know. But be it so, that fact could not affect the merits an iota.

It is argued Pocoke paid $300 out of his own pockets on the bid at the trustee’s sale and that such fact is of stubborn significance against a homestead right. We do not agree to that view of it. Looking’ to substance instead of form, as we must, thereby Pocoke merely took his own funds to pay his own debt to his existing creditor.' Surely if A owes B, C and D he may pay B without just complaint from C or D.

Nor would it do to hold that if the head of a family borrow money on his homestead he may not repay it without thereby putting' his homestead in jeopardy. Homesteads are not held by any such precarious title —contra, homestead owners live, move and have their being under the protection of the general laws of the land whereby they may run in debt (when they can) and pay (when they can) without let or hindrance. Were the law otherwise a home-owner with a mortgage would be in bitter hard lines. He would lose his home to the mortgagee if he didn’t pay and lose it to his creditors at large if he did pay. To him, then, the only safe rule would be: Once in debt, always in debt.

The judgment was right. Let it be affirmed. So it is ordered.

All concur, except Bond, J., not sitting.