author:
GRAVES, J.
     “ ‘GRAVES, C. J.

text:
    THE STATE ex rel. LOUIS NOLTE and UNITED STATES FIDELITY & GUARANTY COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    In Banc,
    June 19, 1920.
    LIABILITY OF SHERIFF: Release of Execution: Good Faith. Under Section 2240, Revised Statutes 1909, an officer is not liable absolutely, under all circumstances’ for the face of the execution, -when he fails to sell property levied upon by him. If the sheriff, acting in good faith, in an earnest effort to follow the law, releases from execution property, he can be held liable, in a suit on his bond, for no more than the real value of the property levied upon. This was the ruling of the Supreme Court in its former-disposition of this case, and is the doctrine of Metzner v. Graham, 66 Mo. 653, which announces the reasonable rule, and has never been overruled.

      Certiorari.

    Writ quashed.

      Charles A. Fonts, for relators.
    (i) Sec. 2:240, R. S. 1909, is a penal statute designed to punish willful misconduct and negligence on the part of sheriffs in the performance of their official duties. It has no application to the acts of an officer, who in their performance, proceeds with care and with an earnest desire to do Ins full duty under the law. State ex rel. v. Nolte, 203 S. W. 956. (2) If the officer makes an honest mistake he is liable for such actual damages as may result, but cannot be punished by being compelled to pay an arbitrary sum wholly unrelated to- the consequences of his mistake. State ex rel. v. Nolte, 203 S. W. 956; Stephenson v. Judy, 49 Mo. 227; State ex rel. v. Lángdon, 57 Mo. 353; Kiskaddon v. Jones, 63 Mo. 190; Metzner v. Graham, 66 Mo. 653; Taylor v. Wimmer, 30 Mo. 127; Nash v. Muldoon, 16 Nev. 404; Johnson v. Graham, 6 Cal. 195; McMahan v. Hall, 36 Texas, 59; Crooker v. Melick, 18 Nev. 227; Swenson v. Christopherson, 10 S. D. 188; Shufeldt v. Barlass, 33 Nev. 785. (3) The penalty of paying the full amount specified in the execution is only imposed on the officer (Sec. 2240, R.. S. 1909) if he ‘ ‘ neglects ” or “ refuses ’ ’ to execute his duty. The words “neglect” and “refuse” as here used should be construed as applying only to willful or negligent failure on the part of the officer to perform his official duty. Such has been the interpretation put upon them in other penal statutes. State ex rel. v. Adams, 101 Mo. App. 468; Gallemore v. Gallemore, 115 Mo. App. 179; State v. Burton, 267 Mo. 61.

      Chas. B. Stark and Christian• F. Schneider for respondents.
    (1) The sheriff having refused to sell the shares levied on under the execution is liable and .bound to pay the whole amount therein directed to be levied. R. S. 1909, sec. 2240; Douglass v. Baker, 9' Mo. 41; Milburn v. State, 11 Mo. 188; State ex rel. Ross v. Case, 77 Mo. 253; State ex rel. v. Nolte, 187 S. W. 896; Same v. Same, 203 S. W. 956. (2) The same doctrine is declared in other jurisdictions: (a) Where our statute has been adopted.. Atkinson v. Heer, 44 Ark. 174; Jett v.' Shinn, 47 Ark. 373; Norris v. State, 22 Ark. 524; Glove Mfg. Co. v. Needles, 16 C. C. A. 132; Grubbs v. Needles, 17 C. C. A. 60. (b) Where the amount of execution is the measure. Cox v. Ross, '56 Miss. 481; Beal v. Shattriek, 53 Miss. 358; Morehead v. Holliday, 1 Sm. of M. 625; Flournoy v. Rubey, 5 J. J. Marsh (Ky.) 322; Améy v. Kennedy, 1 Ashmead (Pa.) 160; Shover v. Fink, 5 W. & S. (Pa.) 459; Bachman v. Fenstermacher, 112 Pa. St. 331. (e) Where there are similar statutes. Turner v. Page, 111 N. C. 293; Swain v. Phelps, 125 N. C. 43; Cowan v. Sloan, 95 Tenn. 424; Hustick v. Allen, 1 N. J. L. 168; Watson v. Hoel, 1 N. J. L. 136; Noble v. Whetstone, 45 Ala. 361; Chandler v. Crawford, 7 Ala. 506; Magee v. Robins, 2 La. Ann. 411; Smothers v. Field, 65 Tex. 435; Robertson v. Marshall Co., 10 111. 559; Graham v. Newton, 12 Ohio, 210. (3) The statute, through its several enactments and revisions, has always provided that a sheriff who levies on property and refuses to sell it “shall be liable and bound to pay the whole amount of money in such writ specified, or endorsed thereon and directed to be levied.” R. S. 1825, p. 371, sec. 24; R. S. 1835, p. 260, sec. 52; R. S. 1845, p. 486, sec. 58; R. S. 1855, p. 750, sec. 65; G. S. 1865, p. 647, see. 63; 1 Wag. Stat. pi 614, see. 63; R S. 1879, sec. 2401; R S. 1889, sec. 4963; R. S. 1899, sec. 3219; R. S. 1909, sec. 2240. (4) The interpretation by the Supreme Court that the statute fixes the measure of damages and does not allow that question to be considered by the trier of the facts has become a part of the statute by its repeated re-enactment and revision and is not now open to review by the courts. Handlin v. Morgan County, 57 Mo. 117; Northcutt v. Eager, 132 Mo. 277; Sanders v. Anchor Line, 97 Mo. 26; State v. Harney, 168 Mo. 194. (5) The statute on which this action is baaed increases the damages allowed at common law and fixes the measure of damages and is to be liberally expounded in favor of the creditor. Ellis v. Whitlock, 10 Mo. 783; Buchholz v. Ins. Co., 176 Mo. App. 469; Iiustick v. Allen, 1 N. J. B. 168; Graham v. Newton, 12 Ohio, 210; Wilson v. Young, 58 Ark. 597; Turner v. Page, 111 N. C. 293; Stanley v. Wharton, 9 Price, 307, 310; Reed v. Northfield, 13 Pick. 101; Read v. Chelmsford, 16 Pick. 128, 132; Huntington v. Attrill, 146 U. S. 667. (6) The ignorance of. the sheriff and the error of his lawyers concerning the Act of 1855-9 is “no excuse for his failure to comply with its provisions.” Townsend v. Finley, 3 Mo. 288; Beckham v. Nacke, 56 Mo. 546; State v. Welch, 73 Mo. 284; Bayard v. Smith, 17 Wend. 88; Houser v. Wilson, 29 N. C. 333; Watson v. Hoel, 1 N. J. L. 136; Cowan v. Sloan, 95 Tenn. 424. (7) That “the sheriff had no corrupt or bad intentions,” or that his act was the result of an error or mistake is immaterial. Swain v. Phelps, 125 N. C. 44; Douglas v. Baker, 9 Mo. 41; Milbum v. State, 11 Mo. 188; State ex rel. v. Case, 77 Mo. 253; Finley v. Hayes, 81 N. C. 368; Staté ex rel v. Nolte, 187 S. W. 896. (8) The defendants cannot be heard to defend the sheriff’s refusal and neglect to do his duty by claiming that the shares were of no value, and therefore that the relator was not damaged. Douglas v. Balser, 9 Mo. 41; Milburn v. State, 11 Mo. 188; State ex rel. Ross v. Case, 77 Mo. 247; State ex rel. v. Nolte, 187 S. W. 896; Buckley v. Hampton, 23 N. C. 322; Cox v. Ross, 56 Miss. 481; Atkinson v. Heer, 44 Ark. 174; Noble v. Whetstone, 45 Ala. 361; Grubbs v. Needles, 17 -C. C. A. 60; Webb v. Armstrong, 5 Hump. (Tenn.) 379; Fowler v. McDaniel, 6 Heisk. (Tenn.) 532; Robertson v. County Com., 10 111. 559; Bachman v. Fenstermacher,- 112 Pa. St. 331; Magee v. Robins, 2 La. Ann. 411. (9) The sheriff, having-refused to make a sale because the relator failed to give him a bond of indemnity for $49,000 cannot now be heard to say that the shares were not of sufficient value to satisfy the execution for less than one-twentieth of that sum. Long v. Long, 111 Mo. 12; Brown v. Brown, 90 Mo. 190; Darrett v. Donnelly, 38 Mo. 492; Atteberry v. Powell, 29 Mo. 429. (10) All facts necessary to entitle the plaintiff to recover being admitted in the answer the court should have sustained the motion for judgment. Bank v. Hainline, 67 Mo. App. 487; Dezell v. Insurance Co., 176 Mo. 253; Morgan v. Durfee, 69 Mo. 476.
   GRAVES, J.

Certiorari to the St. Louis Court of Appeals. . The action out of which the present proceeding grows is the case of State ex rel. v. Louis Nolte and United States Fidelity & Guaranty Company, in the St. Louis Circuit Court. Nolte was the sheriff of the city, and the other defendant the surety upon his official bond. The case has had a checkered career, ■which is fairly outlined by the petitioners’ petition in this court in the instant case, thus:

“The suit was upon the official bond of said Louis Nolte as Sheriff of the City of St. Louis, Missouri, for damages in the sum of $2,183.57, said amount being the amount for which the said Missouri Poultry & G-ame Company has secured a judgment against one Joseph Filler. It was alleged that the said Louis Nolte, under the execution issued upon said judgment, had levied upon certain shares of stock” and had failed, neglected and refused to sell the shares of stock so levied upon. Upon a trial of said cause, the circuit court directed a judgment for the full amount of the execution, said-court being of the opinion that under Section 2240, Revised Statutes 1909, the sheriff was liable, irrespective of his good faith and irrespective of the actual damages suffered by the execution plaintiff.

“Upon an appeal being taken to the St. Louis Court of Appeals, that court affirmed the judgment, all judges concurring; but upon a motion for a rehearing, Judge Reynolds withdrew his concurrence and certified the case to this court, because, in his opinion, the opinion and decision of the court was in direct conflict with the ruling of this court in the case of Metzner v. Graham, 66 Mo. 653. The said opinion of the St. Lonis Court of Appeals will be found in 187 S. W. 896. Said cause was thereupon heard in Division Two of this court where two opinions were written (one being upon motion for rehearing), and then being certified to Court in Banc; when there heard, the divisional opinions were adopted as the opinion of Court in Banc. The opinions of this court will be found in 203 S. W. 956.

“By the judgment of Court in Banc, the judgment of the Court of Appeals and of the circuit court were reversed and ^ the cause remanded to the Circuit Court of the City of St. Louis. Upon a rehearing of said cause before Honorable Franklin Ferris, Judge of the Circuit Court, sitting without a jury, said court found that the sheriff had at all times acted in good faith, upon the advice of counsel, provided for him by law, with no interest other than to perform his full duty as sheriff. The court also found that the stock which ho had released from levy had no substantial value. The circuit court entered a judgment against the defendant for one dollar and for costs. From this judgment the plaintiff therein took an appeal to the St. Louis Court of Appeals, where on January 6, 1920; in accordance with an opinion by Judge Allen, filed on that day, the judgment of the circuit court was reversed and the cause remanded with directions to enter judgment against defendants in said cause for the full amount of the execution.”

■ The opinion which we are called upon to review in this proceeding by certiorari, thus states the facts:

“This is an action upon the official bond of the defendant No.lte, former Sheriff of the City of St. Louis. The relator, the Missouri Poultry & Game Company, having previously obtained a judgment against one Joseph Filler,' in the sum of $2,161.37, sued out an execution thereon and caused a levy to be made by the defendant sheriff upon certain shares of stock of a corporation, the Joplin Mercantile Company, as the propérty of said Filler. The sheriff duly' advertised this corporate stock for sale under the execution, hut prior to the date of sale Filler’s wife filed a third-party claim thereto. This claim did not state the value of the property levied upon. The sheriff thereupon demanded of relator an indemnifying bond in the sum of $49,000, being, it is said, double the par value of the corporate stock mentioned; and upon relator’s refusal to give such bond, the defendant declined to proceed with the sale. Relator thereupon instituted this action against the sheriff and the surety upon his official bond, namely, the United States Fidelity & Guaranty Company, seeking to recover the entire amount of the judgment debt under the provisions of Section 2240, Revised Statutes 1909.

“The third-party claim did not comply with the ‘Sheriff’s and Marshal’s Act’ (R. Sf 1899, p. 2550 et seq.), upon which plaintiff relied as being in force in the City of St. Louis, in that the claim, for one thing, did not state the value of this corporate stock. Plaintiff’s action, therefore, proceeded upon the theory that the third-party claim was not a valid one under the law and afforded no protection to the defendant sheriff in refusing to proceed with the sale.

“This is not the first appearance of the case in this court. Upon the first trial thereof in the circuit court, before the court without a jury, the court gave a declaration of law to the effect that under the pleadings and evidence plaintiff was entitled to recovery and entered judgment for plaintiff for the penalty-of the bond, to-wit, $50,000,'to be satisfied upon the payment to relator of the sum of $2,565.35, the amount of relator’s judgment against Joseph Filler, with interest and costs. From that judgment the defendants appealed to this court, where, by a majority of the court, the judgment was ordered to be affirmed. [See State ex. rel. v. Nolte, 187 S. W. 896.] Upon the dissent of one member of the court, however, the cause was certified to the Supreme Court, where it was disposed of by an opinion, or rather two opinions, of Commissioner Rot (State ex rel. v. Nolte et al., 203 S. W. 956). An order was entered by the Supreme Court reversing the judgment' and remanding the cause. It has since been tried in-the circuit court, before the court without a jury, a jury having been waived. Upon this last trial, the trial court found the issues in favor of plaintiff, but found that plaintiff was entitled to nominal damages only. Judgment was therefore entered for plaintiff for the penalty of the bond, to be satisfied upon the payment of damages assessed at the sum of one dollar. From this judgment the plaintiff prosecutes the appeal now before us.

“Reference to the opinion of this court on the former appeal will disclose' that there were two vital questions raised and considered in the case. One of these was whether the old Sheriff’s and Marshal’s Act was still in force in the City of St. Louis, or, as contended by the defendant, had been repealed and superseded by the general law. Upon that question we held that the Sheriff’s and Marshal’s Act remained in full force and effect as a special law applicable to the City of St. Louis. With that question decided in plaintiff’s favor, it followed that the third-party claim, by reason of which the defendant sheriff refused to proceed with the sale of the corporate stock mentioned, afforded no protection to the sheriff in so doing, for the reason that the claim, as said, did not comply with this special law. The next question, then, was one pertaining to the amount which plaintiff was entitled to recover, namely, whether plaintiff was entitled to recover merely the damages suffered by the wrongful act of the sheriff, or entitled to recover the full amount of the judgment debt under Section 2240, Revised Statutes 1909. As to this question we held, under that statute and decisions of the Supreme Court thereupon, that the defendant sheriff is liable for the full amount of the execution debt.

“Upon certification to the Supreme Court an opinion was first written in the cause by Roy, Commissioner (see State ex rel. v. Nolte, 203 S. W. 956), holding that the provisions of the special law, Sheriff’s and Marshall’s Act, relating to third-party claims to personal property levied upon, had been superseded by what is now Section 2204, Revised Statutes 1909; and that since the third-party claim here involved complies with that section it is valid. On motion for rehearing, a more extensive opinion was written by the Commissioner, wherein it is said, in substance, that the special law, the Sheriff’s and Marshal’s Act, was superseded by the general law, in so far as the latter applies to “the acts of ‘sheriffs, coroners and marshals’ under writs of execution. ’ ’

“The claim of Mrs. Filler set up that a part of the corporate stock in question had been pledged to her in payment of a debt of Filler, and that the debt had matured. And in discussing this question it is held in the opinion of the commissioner that the equity of redemption in corporate stock is not leviable. This matter need not be further noticed here.

“The commissioner’s opinion does not in terms pass upon the question as to the damages recoverable in such case; though reference is therein made to the ■case of State ex rel. v. Case, 77 Mo. 247, wherein it is held that for a false return of an execution a sheriff is liable to the full amount of the execution debt.

“Following the opinions of the commissioner, as unofficially reported in 203 S. W. 960, appears the following, indicating the respective positions of the members of the Supreme Court upon the two questions, viz:

“ ‘PER CURIAM: — The foregoing opinion and the opinion on motion for rehearing filed herewith of Roy, C., are adopted as the opinion of Court in Banc.

Williams, Woodson and Blair, JJ., concur; Paris, J., concurs in result and in opinion of Grmes, O. J.; Walker and Bond, JJ., dissent; Graves, G. J., concurs in separate opinion.

“ ‘GRAVES, C. J.

I concur in the result only of the learned commissioner’s opinion in this case. To my mind the case of State ex rel. v. O’Neil Lumber Company et al., 170 Mo. 7, 70 S. W. 121, settles the question as to which law is applicable. The effect of that ruling is that the sheriff is governed by the prior special law, and not by the later general law. The commissioner rules contra. To this ruling I do not agree in view of the O’Neil Lumber Company case, supra.

“ ‘However, I do agree to the reversal of the judgment, and the remanding of the cause, as called for by the opinion. My reasons therefor are different from those specified by the commissioner. The record shows the utmost good faith of the sheriff in the handling of the execution. It fails- to show any negligence or willful misconduct. It shows an earnest effort to try to follow the law, as he was advised upon that subject. Under such state of facts, I do not think that he can be held for more than the real value of the stock levied upon by him.. If this stock was worth at the time of levy the amount of the execution, the sheriff would be liable for the amount of such execution, but on the other hand, if it was not worth such amount, the sheriff should not be held for more than the actual value at the date of the levy. These views would call for the reversal of the judgment and a remanding of the cause, which is the result reached by the commissioner’s opinion. For these reasons I concur in the result only of that opinion. Faris, J., concurs in these views.’

“It will be thus seen that three members of the court, viz., Williams, Woodson and Blair, JJ., concurred fully in the commissioner’s opinion; Walker and Bond, JJ., dissented in toto; while Graves, C. J., and Paris, J., concurred for the reasons set forth in the concurring opinion of the former. Now, as said, of the two vital questions which had been up.for consideration by this court in the case, the commissioner’s opinion disposes of but one. And the view of the commissioner that the Sheriff’s and Marshal’s Act had been, partially at least, superseded by the general law, was not concurred in by a majority of the members of the Supreme Court, but on the contrary was concurred in by but three members of that court. To that proposition Walker and Bond, JJ., dissented, since they dissented in toto; and to that proposition Graves, C. J., and Fáris, J., expressly dissented. Consequently we are bound to conclude that a majority of the members of the Supreme Court judicially determined that the Sheriff’s and Marshal’s Act was and is still in full force and effect in the City of St. Louis. And from this it follows that this third-party claim was not valid, and afforded the sheriff no lawful ground for refusing to sell.

“The other question discussed and passed upon by this court in the case, i. e., the amount of damages recoverable, was not in any manner disposed of by the commissioner. It is not directly dealt with except in the concurring opinion of Graves, C. J., concurred in only by Paris, J., wherein it is held that since the defendant sheriff acted in good faith, in an earnest effort to follow the law as he was advised by counsel upon that subject, he can be held liable for no more than the real value of the stock levied upon by him. This rule would indeed be a just one when applied to the facts of this case. But we previously felt compelled to hold to the contrary, nor do we see any escape from the conclusion that it is our duty now to so hold. The statute in question (Sec. 2240, R. S. 1909) provides as follows:

“ ‘If any officer to whom any execution shall be delivered shall refuse or neglect to execute or levy the same according to law, or shall take in execution any property, or any property be delivered to him by any person against whom an execution is issued, and he shall neglect or refuse to make sale of. the property so taken or delivered, according to law, or shall make a false return of such writ, then, in any of the cases aforesaid, said officer shall be liable. and bound to pay the whole amount of money in such writ specified, or thereon indorsed and directed to be levied.’

“And, as pointed out by us in our former opinion herein, it has been heretofore consistently ruled that for a neglect of duty in any of the instances mentioned, the sheriff is liable for the full amount of the execution, debt.

“In view of the language of the statute and the express prior rulings of the Supreme Court last above mentioned, it is our clear duty to hold that the defendant is liable for the full amount of the execution debt, unless it can be said that in- this very case, upon certification, the Supreme Court has held to the contrary, But we regard it as entirely clear that such was not the ruling of a majority of the judges of the Supreme Court; but, on the contrary, that what is said as to this in the opinion of Graves, C. J., concurred in by Faris, J., is but an expression of the individual views of those two members of that court. . Obviously such view was not concurred in by any of the other members of the court. And while we have a very high regard for the views of these two judges, we are. unable to follow them, for the reason that it is our express duty, under the Constitution, to follow the last controlling decision of the Supreme Court.

“Upon the last trial of this case in the circuit court the court, while holding that the third-party claim ‘did not comply with the requirements of the statute applicable hereto,’ took the view expressed by Judge Graves in his concurring opinion, supra, and, at the instance of defendant, gave the following declaration of law:

“ ‘The court declares the law to be that if the court believes and finds from the evidence that the defendant Nolte, his deputies and his attorneys in so far as they had anything to do with the levy of the execution referred to in the evidence and the subsequent release of the shares of stock levied upon thereunder, acted in good faith and with a sincere desire to perform their duties as public officials, and that they were not negligent and not wilfully or intentionally disregardful of their duties, then the defendants are liable for only the actual amount of damage sustained by the plaintiff by reason of the failure of the sheriff to sell the shares of stock levied upon. ’

“And proceeding upon this theory the court proceeded to determine the damages which plaintiff had actually suffered by reason of the failure and refusal of tbe defendant sheriff to make the sale,- and found that plaintiff had suffered nominal damages only. In thus declaring the law, and predicating his finding thereupon, we must hold that the trial judge committed error.

“The other questions raised by appellant become immaterial.

“The judgment is consequently reversed and the cause remanded, with directions to the circuit court to enter judgment for plaintiff for the full amount of the execution debt, with interest and costs.”

Counsel for relators, or petitioners, charge that the foregoing opinion not only conflicts with previous named cases of this court, but conflicted with our own ruling in this same case when here upon certification by the St. Louis Court of Appeals. In the present opinion of the Court of Appeals the full opinion of Eoy, C., is not set out, but by direct reference it is made a part thereof. This gives us the full outline of the instant case.

Ruttagí

I. Going to the opinions of this court in the case of State ex rel. Poultry & Game Co. v. Nolte, 203 S. W. 956, we find the expressions of the judges of this court, on the two questions discussed by the Court of Appeals in the opinion now before us. These opinions consist of (1) the original opinion of Eoy. C., in Division Two, (2) the opinion of Eoy, C., in said Division Two on the motion for re-hearing, (3) the Per Ouriam opinion in Bane, and (4) the separate concurring opinion of Graves, C. J., and Paris, J., in Banc. The views of these four separate documents constitute the views of this court upon the two questions, if they were passed upon therein.

The first question wa's as to whether or not the “Sheriff’s and Marshal’s Act” of 1855 (Laws of 1854-5, p. 464) applied, or our present Section 2204, Eevised Statutes 1909, applied. This, on the theory that the third-party claim was good under the latter act, but not good under the former. Eoy, C., held that Section 2204 applied, and upon this question (Per curiam opinion in Banc) Woodson, Williams and Blair, JJ., concurred; Walker and Bond, JJ., dissented, and the separate concurring opinion of Graves, C. J., and Faris, J., shows that they refused to consent to that ruling, so that upon that question the present opinion of the Court of Appeals conforms to this last ruling of this court.

Sheriff’s11 Liability.

II. The opinion before us for review, says that as to the second proposition before them, i. e. that the mere failure of the officer to levy rendered him liable for the full amount of the execution, irrespective of the good faith of the officer, and irrespective of the am0'an't damages actually suffered by suela official'failure, this court made no ruling when the case was here upon former appeal, on the certification of the St. Louis Court of Appeals. In this wé think the Court of Appeals is in error. It is true that our views were divided and differently expressed, but when the proposition is considered, and the votes of the members of this court counted, it will be found that a majority voted that, where the officer acts in good faith in thé performance of his duty, then under Section 2240, he is liable only for the actual damages which occurred by his honest, but mistaken, judgment. In the opinion on motion for rehearing, Roy, C., said:

“This case was certified here because Reynolds, P. J., deemed the opinion of the Court of Appeals in conflict with Metzner v. Graham, 66 Mo. 653. Respondent says that the latter case was impliedly overruled by State ex rel. v. Case, 77 Mo. 247. In the first of those two cases this court, speaking of the liability of a sheriff for failure to properly execute a writ of attachment, said:

“ ‘It cannot be that mere technical breach of duty, or abstract remissness, unaccompanied by resulting injury, can form the basis for a substantial recovery, not at all proportionate to the actual damages sustained.’

“In that case, so far as appears, the officer acted in good faith and from error of judgment. In the latter one of those cases it was held that the sheriff is liable for a false return on an execution to the full amount of the execution debt. That is by no means an overuling of the Metzner Case, which still stands as good law. This case was properly certified here. ’ ’

To the above quoted views, Blair, Woodson and Williams, JJ., gave their consent. That Graves, C. J., and Faris,'J., expressed the same thought, in slightly different verbiage, in the separate concurring opinion, can not well be questioned. So that on the proposition urged by plaintiff in that case, i. e., that, under Section 2240, Revised Statutes 1909, there was an absolute liability upon the part of the officer for the amount of the execution, there were five votes of. this court against such view. It is clear that a majority of this court gave assent to the doctrine announced in the case of Metzner v. Graham, 66 Mo. 653.

The opinion of Rot, C., quoted supra, approved the doctrine of the Metzner case, and three judges here, Blair, Woodson and Williams, concurred. It is true that the opinion of Graves, C. J., and Faris, J.,.does not mention the Metzner case, but it does announce the identical rule, so that for such rule there were five votes. That doctrine did not permit a recovery of the full amount of the execution, irrespective of the good faith of the officer,. and irrespective of the actual damages. Where the officer acts in good faith, and uses his best judgment, and is not remiss in attempting to-faithfully perform his duties, he should not be held for more than the actual damages occasioned by his honest, but erroneous, judgment. The St. Louis Court of Appeals did not follow these views, in the opinion before us.

III. But even if there were doubt as to how this court ruled the question in State ex rel. v. Nolte, 203 S. W. l. c. 960, all that could be said is that only three judges expressly approved the Metzner case. No one voted to overrule1 it. The Metzner case would then be the last controlling opinion. This Metzner case was an action under Section 63, of 1 Wagner’s Statutes, page 614? which is now our Section 2240, Revised Statutes 1909, The outline of the petition in the Metzner case shows it to be an action under Section 63 of 1 Wagner’s Statutes, page 614. That case disapproved the doctrine that an officer was liable absolutely, under all circumstances,' for the face of the execution when he failed to sell property levied upon by him. It is the reasonable rule. It is the last expression (not counting our ruling in 203 S. W. supra) upon the question involved in this record. The opinion contravenes this case upon the doctrine of the officer’s liability. No officer, who in good" -faith undertakes to perform his duty, should be held liable for more than actual damages for his error of judgment. Judge Ferris of' the trial, bench was right in his conclusions on the case before him and before the Court of Appeals. It follows that the judgment of the St. Louis Court of Appeals, together with that portion of their opinion relating to the officer’s liability under Section 2240, Revised Statutes 1909, should be quashed. It is so ordered.

All concur except Woodson, J., absent.


source: Caselaw Access Project

author: GOODE, J.

license: Public Domain

text:
    AGNES E. WHITE v. MAUD RUTH SUMMERVILLE et al., Appellants.
    In Banc,
    June 19, 1920.
    1. DOWER: Sale of Land: Payment in Gross. The Dower Act (Art. 16, Ch. 2, R. S. 1909) nowhere provides for the sale of the lands of a decedent’s estate in order that the gross value of his widow’s dower interest therein may he paid to her in money. It contemplates and provides for only two contingencies: first,-the setting apart to the widow for life of one-third of the lands whereof her husband died seized, when this can be done without too much injury to the estate; and, second, when this cannot be done, the payment to her annually of the ascertained yearly value of her dower interest.
    2. -: -: -: Partition. Under the Partition Act (Sec 2559, R. S. 1909) a dowress, who has a mere dower interest or life estate, cannot maintain an action against the heirs or de visees to partition the lands of which her deceased husband died seized, and if it be found that partition in hind cannot be made without great prejudice to the parties in interest, have judgment for a sale of the lands and a division of the proceeds among the parties according to their respective rights or interests. A widow who has only a dower interest, and hence no interest in the fee, is neither tenant in common, joint tenant nor coparcener with the owners of the fee and the statute did not change the common-law rule that partition can be maintained only between those who have a common interest, and a partition suit does not lie between a mere life tenant and remaindermen. The dowress, unless she owns an interest in the remainder or the remaindermen consent, cannot, by virtue of the Partition Act, have judgment that the lands be sold in order that the value of her dower be paid to her in money.
    3. -: -: -: Mortality Statutes. The statutes coxxcerning the mortality tables (Sec. 8499 et seq., E. S. 1909) do not confer the remedy of partition where previously it was unavailing; they did not extend the authority of the court to adjudge money to any life tenant in lieu of his estate, to instances or under circumstances theretofore unauthorized, but only prescribed a mode for computing the value of the interest when, according to the law theretofore prevailing, that might be done. They did not authorize the court, independently of the consent of the parties, to allow a gross sum in lieu of dower.
    Appeal from G-reene Circuit Court. — Hon. Arch A. Johnson, Judge.
    Eeversed and remanded.

      G. G. Lydy for appellants.
    (1) The petition shows that the lands are not subject to partition and sale. The court erred in ordering the sale of all the lands as in cases of partition, because Sec. 2559, E. S. 1909, defining the estates subject to partition, limits the right of partition to cases where lands, tenements, or hereditaments are held in joint tenancy, tenancy in common or coparcenary. The dowress, before admeasurement of her dower, is not a joint tenant, nor a tenant in common, nor a coparcener. Her right rests in action only, and she takes in severalty. McClanahan v. Porter, 10 Mo. 462; Belfast Inv. Co. v. Curry, 264 Mo. 499; Waller v. Marclus, 29 Mo. 25; 2 Scribner on Dower (2 Ed.), p. 27; Jodd v. Ry. Co., 259 Mo. 239. An nnassigned dower right is not an estate in lands. Jodd v. Ry. Co., 259 Mo. 239; Weatherford v. King, 119 Mo. 58; Farnsworth v. Cole, 42 Wis. 403; Witthaus v. Schack, 105 N. Y. 322; Gooch v. Atkins, 14 Mass. 378; Greenleaf Cruise, chap. 3, sec. 1, note; 10 Am. & Eng. Ency.' Law (2 Ed.), p. 146; 5 L. R. A. 520, note; 14 Cyc. 961. And a mere dower right is not sufficient to sustain a petition for partition, at the instance of the dowress. Hnrste v. Hotaling, 20 Neb. 178; Ullrich v. Ullrich, 123 Wis. 175; Reynolds v. McCurry, 100 111. 356; Wood v. Clnte, 1 Sanfl Ch. (N. Y.) 199; Kissel v. Eaton, 64 Ind. 248; Kelsea v. Cleaves, 117 Me. 236; White v. White, 16 Grat. (Va.) 264, 80 Am. Dec. 706; 21 Am. & Eng. Ency. Law (2 Ed.), 1155; 30 Cyc. 189; Freeman on Co-tenancy and Partition (2 Ed.), secs. 456-431-432. (2) The act approved April 8, 1905, now Sec. 8499, R. S. 1909, containing a life annuity table, for estimating the present value of life interests, does not give the widow the right of election to require the owners of the fee to pay a gross sum in lieu of her dower, and the court erred in construing said section as- though it did give such right. It has been expressly ruled that the life tenant cannot maintain a proceeding for the sale of the latid in order to have the present value of his life interest computed and paid to him in cash. Atkinson v. Brady, 114 Mo. 200; Stockwell v. Stockwell, 262 Mo.-671; Hayes v. McRevnolds, 144 Mo. 354. (3) The prevailing rule is that, independent of legislative authority, the courts cannot, without the consent of the parties, allow a gross sum in lieu of dower. Herbert v. Wren, 7 Cranch. (U. S.) 370; Francis v. Garrard, 18 Ala. 794; Francis v. Hendricks, 28 111. 64; Bonner v. Peterson, 44 111. 259; Blair v. Thompson, 11 Graft. (Va.) 441; Jarrell v. French, 43 W. Va. 456; Ellguth v. Ellguth, 250 111. 214; Lee v. James, 81 Ky. 446.

      F. B, Williams, Val Mason and Watson S Page for respondent.
    (1) Equity has jurisdiction of dower. 1 Pomeroy, Equity Jurisp. (3 Ed.) sec. 280; 4 Pomeroy, Equity Jurisp., sec. 1382; 5 Pomeroy, Equity Jurisp., sec. 6; 6 Pomeroy, Equity Jurisp., sec. 691; Menifee v. Menifee, 8 Ark. 9; 14 Cyc. 979; Devorse v. Snider, 60 Mo. 235. (2) The statute, R. S. 1909, sec. 8499, creates in the dowress a right to- have her dower computed in money, she being willing to accept a gross sum in lieu thereof. Dougherty v. Dougherty, 294 Mo. 228; Millard v. Beaumont,' 194 Mo. App. 79. The courts have permitted a dowress, at her own suit, to have her dower commuted to a gross sum, applying the tables of mortality in the computation, and have made the same a lien upon the whole estate. Dougherty v. Dougherty, 204 Mo. 228; Brown v. Brown, 35 Mich. 415; Hogg v. Hensley, 100 Ky. 739; Pitts v. Craddock, 39' So. (Ala.) 506; Carlin v. Mullery,, 83 Mo. App. 39;’ Gucker v. Kopp, 152 N. Y. Supp. 370. (3) There being no remedy provided by statute for the enforcement of this right, equity will supply the remedy, under the influence of the maxim, “Equity will not suffer a right to be without a remedy.” 16 Cyc. 133; Albany County v. Durant, 9 Paige (N. Y.) 182; Balch v. Beach, 95 N. W. (Wis.) 135. (4) Dower is a legal, equitable and moral right, favored in a high' degree by law and next to life and liberty held sacred. 14 Cyc. 885; Mandel v. McClave, 46 Ohio St. 407; In re Alexander,- 53 N. J. Eq. 96; Bishop v. Boyle, 91 Ind. 169. (5) Partition is a proper proceeding in which to assign dower, and also homestead, and the rights of the parties can be adjusted in this suit. Colvin v. Haven-stein, 110 Mo. 583; Weatherford v. King, .119 Mo. 58. (6) The uncontradicted evidence shows that the plaintiff is entitled to dower in all the lands described in her petition, and the decree of the court to this effect must be affirmed regardless of the validity'of appellant’s contentions that the decree is erroneous in ordering the lands sold for the purpose of paying her a gross sum in lieu of dower in kind.
   GOODE, J.

The purpose of this action, so far as the controversy on the appeal is concerned, is to procure the sale of four parcels of land, of which James M. White, late of Greene County, Missouri, died seized on October 31, 1909, and to have the value of plaintiff’s dower interest in said lands ascertained according to the Mortality Statutes of this State, and paid to her in money. Alternative reliefs were prayed in the petition, i. e., first, that the value of plaintiff’s dower interest be ascertained and adjudged a lien on the lands until paid; second, that said dower interest be set off to plaintiff in kind, and the portion set off, sold, etc. The court below found, in the judgment, these facts: that said James M. White died on the date mentioned, seized of the four tracts of land, describing them; that plaintiff was the widow of the deceased and nineteen years old when he died; that defendants Maud Ruth Summerville, Mary Elizabeth Speaker and Estella Eugenia White were the only heirs at law of the deceased; that the defendant Jay E. Summerville was the husband of Maud Ruth Summeryjlle and the guardian of the person and curator of the estate of Estella Eugenia White, who is of unsound mind, and John W. Speaker was the husband of Mary Elizabeth Speaker; plaintiff was entitled to a dower interest in the real estate, which has never been set off or assigned to her; she was not in possession of any of the land and had never received any rents or profits therefrom; she was willing to accept a gross sum in lieu of her dower. Wherefore it was considered, adjudged and decreed that a gross sum of money be paid to plaintiff by defendants in lieu of her dower interest in said lands; and as all the parties could not agree as to their value, the land should be sold .and the “gross sum be estimated according to the value of the annuity at sis per cent on one-third of the proceeds arising from the sale of the real estate, during the probable life of the plaintiff, according to the tables of mortality as contained in Chapter 82, Sections 8499 to 8501, Revised Statutes 1909, inclusive.” The sheriff was ordered to sell the lands in separate tracts to the highest bidder for cash in hand, or at the option of the purchaser, one-half cash and the balance ,in secured notes, and to deliver to the purchaser a deed “conveying all of the right, title and interest of the plaintiff and defendants, of, in and to the real estate above described and by him sold.” That after paying the costs of the'action and of the sale, etc., plaintiff should be paid out of the proceeds “the gross sum above provided for,” the remainder “to be paid to Maud Ruth Summerville, Mary Elizabeth Speaker, and Jay F. Summerville, guardian of the person and curator of the estate of Estella Eugenia White, a person of unsound mind, in equal parts or one-third each.” From that judgment defendants appealed.

The first of the tracts of .land involved in the action contains fifty acres and lies near the City of Springfield. The second tract contains ninety-five acres, and also lies near said city. The third tract is a lot in Hobart’s First Addition to said city (Lot 3, Block 4), and the fourth tract consists of the west half of Lot Seven, and the east fourteen feet of lot Eight, Block Thirty-seven, of the original plat of North Springfield, in the City of North Springfield.

The petition averred the first tract was worth about five hundred dollars, the second about four hundred dollars an acre, or more than forty thousand dollars; the third, four hundred dollars, and the fourth $3500; averred further than none of the tracts produced any net income except tract four, on which there is a livery bam which rents for thirty dollars a month. The petition said further that Tract Two, although of large value, did not yield enough income'to pay the taxes against it, and could only be made to produce a net income by dividing it into town lots and erecting buildings thereon; that if dower in kind was assigned to plaintiff out of Tract Two, the same would be worthless to her because the land could not be made to yield any income in its present condition; that dower in kind in said tract would have no substantial market value, because a life estate cannot be sold on the market; that she would be unable to improve her dower if- assigned to her in kind, because she could not borrow money on her dower interest with which to improve the dower estate; that dower out of the rents and profits could not be assigned to her, for the land did not yield any; further, that to set apart her dower in kind would do great injury to her interest and would defeat the intent of the law relating to dower, by depriving her of a beneficial interest in the lands.

The answer charged the plaintiff with collecting-rents and profits- from the lands, and alleged the defendants had paid the taxes on them, asking an accounting as to those matters.

Plaintiff’s reply denied the collection of rents and profits by her or the payment of all the taxes by defendants. Those minor matters do not concern the appeal.

The plaintiff offered to prove the value of the different parcels, and that Tract-Two was worth seven hundred dollars an acre; whereas the income value of it would not exceed four dollars an acre. Offered further to prove the issuance of tax bills for road improvements against said tract. All of that sort of evidence was excluded by the court; also evidence offered by plaintiff to prove the land was not susceptible of division in kind.

Defendants requested three declarations of law, which the court refused and exceptions were saved to the rulings. The tenor' of the first declaration was that plaintiff was not entitled to demand the sale of the lands and the court had no jurisdiction to order the sale, either under Section 8499, Revised Statutes 1909, to-wit, the Mortality Statutes, or under Chapter 22, Revised. Statutes .1909, providing for the partition of real estate. The second declaration was- that if the Mortality Statutes (Sec. 8499 et seq.) authorized the sale of real estate for the purpose of paying a widow the value of her dower interest in money, it was in violation of the Constitution of the State in that no such purpose or authority was expressed' in the title of the act as it was approved April 8, 1905. The third request was that the action was governed by Article XVI of Chapter 2, Eevised Statutes 1909, relating to estates of dower and the assignment of them.

The article relating to dower provides for the setting apart in kind to the widow of her dower interest, if it is susceptible of division in kind without great injury thereto; if it is not, the yearly value of the interest may be assessed by a jury and judgment rendered that there be paid to the widow, annually during her life, as an allowance in lieu of dower, the sum so assessed as the yearly value. [E. S. 1909, Art. XVI, Ch. 2.] The article nowhere provides for the sale of all the lands of a decedent’s estate in order that the gross value of the widow’s dower interest therein may be paid to her in money; but contemplates and provides for only two contingencies : first, the setting apart to the widow for life of one-third of the lands whereof her husband died seized, when this can be done without too much injury to the estate. Second, when it cannot be, the payment to .her annually of the ascertained yearly value of her dower interest.

It is contended for plaintiff the partition statutes afford a dowress the option of another remedy by action against the heirs or devisees of her deceased husband, to partition the land of which he was seized at his death between her and said heirs or devisees, and if it is found in the action that partition in kind cannot be made without great prejudice to the parties in interest, a sale of the land may be ordered and the proceeds divided among the parties according to their respective rights and interests.

“In all cases where lands, tenements or hereditaments are held in joint tenancy, tenancy in common, or coparcenary, including estates in fee, for life, or for years, tenancy by the curtesy and in dower, it shall be lawful for any one or more of the parties interested therein, whether adults or minors, to file a petition in the circuit court of the proper county, asking for the admeasurement and setting off of any dower interest therein, if any, and for the partition of the remainder, if the same can be done without great prejudice to the parties in interest; and if not, then for a sale- of the premises, and a division of the proceeds thereof among all of the parties, according to their respective rights and interests.” [R. S. 1909, art. 11, ch. 22, sec. 2559.]

At common law a suit by a dowress for partition would not lie against the. owners of the fee, for the reason that there was no common interest between her and said owners, and the remedy of partition was only available as between co-owners. [Hurste v. Hotaling, 20 Neb. 178; Ullrich v. Ullrich, 123 Wis. 176; Reynolds v. McCurry, 100 Ill. 356; Wood v. Clute, 1 Sandf. Ch. (N. Y.) 199; Riker v. Darke, 4 Edw. Ch. (N. Y.) 668; Kissel v. Eaton, 64 Ind. 248; Kelsea v. Cleaves, 117 Maine, 236; In re Culver, 104 Atl. 784; White v. White, 16 Grat. (Va.) 264; 21 Am. & Eng. Ency. Law (2 Ed.), 1156; 30 Cyc. 180; Freeman, Co-Tenancy & Part. (2 Ed.) secs. 456, 431, 432.] The quoted section of the chapter on partition (2559) although it includes estates less in quantity than the fee, and among them dower estates, as being subject to its terms, and says any party having a dower or other life interest in land, as well as parties who own an interest in the fee, may petition to have the life interest set off and the remainder partitioned among the owners of it, has never been held to have so far changed the rule at common law as to entitle a widow, merely by virtue of her dower interest, or any owner of a life estate, to maintain partition as against the owners of the fée. The widow, or other life tenant, is neither tenant in common, -joint tenant nor coparcener with the fee owners. [McClanahan v. Porter, 10 Mo. 746.] And at common law only those owners were entitled to have lands partitioned among, them; the remedy of partition being accorded where there was a common interest between the parties invoking the remedy and the party against who,m it was invoked. [Chickamauga Trust Co. v. Lonas, L. R. A. 1918D, 451, and eases cited in note.] We have^ lately had occasion ,to examine this question and to review the decisions in this State dealing with it. [Carson v. Hecke, 282 Mo. 580, 222 S. W. 850.] In the cited case it was held partition would not lie in favor of the holder of a title for life against the remaindermen, unless the life tenant also owned an interest in the remainder. The present plaintiff has no interest in any of the lands she seeks to have sold, except as dowress; therefore plaintiff cannot obtain, by virtue of the Partition Statute, a sale of the lands in order to pay over to her the value of her dower in money, any more than she can obtain it under the Dower Statutes in an action to have the gross value of her dower ascertained and paid to her.

It follows that if this action is maintainable, it is because a remedy which did not exist before, is conferred by the Mortality Statutes or life tables, first enacted in 1903, and amended in 1905 (Laws 1903, p. 167; Laws 1905, p. 139; R. S. 1909, sec. 8499 et seq.) The prevailing rule is that independent of the consent of parties, the court cannot allow a gross sum in lieu of dower. [Herbert v. Wren, 7 Cranch. [U. S.] 370; Francis v. Garrard, 18 Ala. 794; Bonner v. Peterson, 44 Ill. 259; Blair v. Thompson, 11 Gratt. (Va.) 441; Jarrell v. French, 43 W. Va. 456; Ellguth v. Ellguth, 250 Ill. 214; 10 Am. & Eng. Ency. Law (2 Ed.), p. 161; Lee v. James, 81 Ky. 443, 446.]

In the case of Carson v. Hecke, cited above, we decided that the statutes concerning the mortality tables did not confer the remedy of partition where previously it was unavailable; and, further, that they did not extend the authority of the court to adjudge money to any life tenant in lieu of his estate, to instances or finder circumstances theretofore unauthorized, but prescribed a mode for computing the value of his interest when, according to the law theretofore prevailing, this might be done. The point in decision in that case regarding the effect of the statutes prescribing tables for the computation of life interests is the exact point involved here, and we/refer to the opinion for our conclusion about the matter and the reasons on which it was based.

The judgment is reversed and the cause remanded.

All concur except Woodson, J., absent.


author: WILLIAMSON, J.

text:
    ST. LOUIS UNION TRUST COMPANY v. JAMES A. HILL, Appellant.
    In Banc,
    June 19, 1920.
    1. LIMITATIONS: Denied by Trial Court: Uncontroverted Evidence. Where appellant relied upon the Statute of Limitations as a defense, and introduced testimony tending to show that he had been in possession of the land a sufficient length of time for his possession to have ripened into title, and respondent introduced no evidence to the contrary, and no declarations of law were asked or given and no request for a finding of facts was made, a judgment by the court, sitting as a jury, precludes a review of the evidence on appeal, and must be affirmed. [Overruling Reichenbach v. Ellerbe, 115 Mo. 588.]
    2. QUIETING TITLE: Equitable and Legal Proceedings: Trial by Court: No Instructions. An action to ascertain and determine title to land is an action at law when legal issues are tendered, and a suit in equity when equitable issues aré involved.' Where the whole issue is between plaintiff’s paper title and defendant’s claim'by limitations, the issues are legal and the action is one at law; and being an action at law, the weight of the evidence, even though undisputed, is for the triers of fact, and their finding is conclusive on appeal; and if th,e issues are submitted to the judge, his decision, there being no -declarations of law asked or given, is to be treated as the verdict of a properly instructed jury.
    Appeal from Pemiscot Circuit Court. — Hon. Sterling II. McCarty, Judge.
    Affirmed,

      Ward & Beeves for appellant.
    (1) The court takes judicial notice that Little Elver is a non-navigable stream and therefore the defendant holding a fractional quarter section of land to Little Eiver, owns to the thread of the stream. Wright Lumber Co. v. Bipley Co., 270’Mo.-121. (2) “It is settled law in this State that adverse possession, continued for the requisite time, transfers the title from the owner to the oecupant as effectually as would a deed; and title acquired by adverse possession under the Missouri statute is in every respect as good for purposes of attack or defense as title by deeds running back to the United States Government.” Norton v. Eeed, 253 Mo. 253; Scannell v. Am. Co., 161 Mo. 618; Biddle v. Mellon, 13 Mo. 241; Barry v. Otto, 56 Mo. 177; Eidgeway v. Holliday, 59 Mo. 444; Fulkerson v. Mitchell, 82 Mo. 1; Franklin v. Cunningham, 187 Mo. 184; Nelson v. Broadhack, 44 Mo. '596; Watt v. Donnell, 80 Mo. 195. (3) Besides transferring the title of the land of Pemiscot County and plaintiff to the defendant and his grantors by their acts of possession, plaintiff cannot recover by reason of the statute which provides that “no action for the recovery of lands shall be maintained by any person unless such person is possessed of the land within ten years before the commencement of such action. “Sec. 1879, E. S. 1909; Price v. Brackenridge, 92 Mo. 378; Franklin v. Cunningham, 187 Mo. 196; Sherwood v. Baker, 105 Mo. 472. (4) The Statute of Limitations runs as to swamp lands sold by the county to private individuals, and as to the county before they are sold. So that where the defendants having been in the actual, open, continuous and adverse possession of such land for ten years before the institution of a suit, plaintiff cannot recover. Palmer v. Jones, 188 Mo. 163; Hunter v. Pinnell, 193 Mo. 146; Lumber Co. v. Craig, 2:48 Mo. 341; Dunklin County v. Chouteau, 120 Mo. 577; Simpson v. Stoddard County, 173 Mo. 121. (5) The court •erred in refusing to find in writing its conclusions of facts separate from its conclusions of law as prayed for in this case. Section 1972, R. S. 1909; Hamill v. Talbott, 72 Mo. App. 22; German-Am. Ins. Co. v. Tribble, 86 Mo. App. 546.

      C. O. Shepard and Barclay & Wallace for respondent.
    (1) The appellant requested no declaration of law nor findings of facts and conclusions of law, and as the trial judge ruled, generally, .against appellant, and as this judgment is warranted by the pleadings, no review of the facts may now be had in this court, for the cause was tried by the lower court, without a jury, as an action at law. Walker v. Roberts, 204 S. W. 18; Rausch v. Michel, 192 Mo. 293; Jordan v. Davis, 172 Mo. 599'. Appellant’s claim that a different rule should be applied in this case has been definitely answered in the negative. Morrison v. Bomer, 195 Mo. 538; Buford v. Moore, 177 S. W. 865. (2) Respondent’s motion for findings of facts and conclusions of law (which does not appear to have been acted upon) cannot avail appellant anything. Appellant, as stated, filed no such motion. The statute requires this request from any party who may later desire to predicate error upon a failure or refusal so to act by the trial judge. It may well be that the lower court saw no reason for complying with respondent’s motion— in view of the judgment that was entered. Furthermore,' it may be that the respondent withdrew its said motion. In no aspect, may appellant complain of the result of his own failure to make this request; and neither the statute nor the cases he cites sustain his assignment of error in this regard. Moreover, the record shows no exception, taken or saved by appellant, to the court’s failure to comply with his adversary’s said motion.
   WILLIAMSON, J.

The plaintiff brought suit, under the provisions of Section 2535, Revised Statutes 1909, to ascertain and determine the title to certain lands in Pemiscot County, asserting in its petition that the de-„ fendant claimed some interest adverse to plaintiff’s title, and praying that the court ascertain and determine the estates of plaintiff and defendant, respectively, therein. To this petition the defendant filed an answer, in which he disclaimed title to all of the lands described in the petition, except the following portions:

“Beginning at the center of fractional Sections 17 and 18, Township 20, north, Range 12, east, on the left and east banks of Little River and meander south on the left bank as follows: South 28 degrees west 1060 feet to the corner of fractional Sections 18 and 19 of Township 20, north, of Range 12, east; thence south 521 feet; thence south 15 degrees west 602 feet; thence south 27 degrees east 251 feet; thence east 535 feet to the section line between Sections 19 and 20 of Township 20, north, Range 12 east; thence north 2244 feet to the point of beginning of this survey and containing 21.85 acres, being 3.20 acres of the land sued for herein.”

As to the lands above described, defendant asserted title in himself, and joined in the prayer of the petition that the* court ascertain and determine the title of the parties. A reply was filed, and upon a hearing of the-cause the court rendered judgment in favor of the plaintiff. The defendant has duly appealed.

The .plaintiff’s evidence consisted of the usual documents divesting title from the United States, first to the State of Missouri, thence to the County of Pemiscot, and thence to the plaintiff. Defendant’s evidence consisted of a deed from one Story and wife to William J. Hill and the defendant, and from William J. Hill to the defendant, and defendant also introduced parol evidence tending to show title in himself under the Statute of Limitations. What title Story had to the lands in question, or how, when or from whom he obtained his tifie, if any, does not appear.

Upon the conclusion of the evidence, the cause was submitted to the court for judgment. The defendant did not ask for any declarations of law or findings of fact, and none were given; The case was tried without the intervention of a jury. A motion for new trial was filed and overruled, and the case is now before us upon the record above indicated. No further facts need be stated.

It will be observed from the statement of facts that appellant relied in part upon the Statute of Limitations to sustain his claim to the lands in question, and that he introduced evidence tending to show that he had been in possession of the lands above described a sufficient length of time for possession to have ripened into title. It will also be observed that respondent introduced no evidence to the contrary. The case was a law case, tried to the court without the aid of a jury, as stated, no declarations of law or findings of fact were asked by appellant, and none were given.

Respondent now contends that the finding of the trial court upon the questions of fact involved precludes a review of the evidence by this court, and that the judgment must for that reason be affirmed. This contention must be sustained upon the authority of a long line of eases beginning with Bryan v. Wear, 4 Mo. 106, and continuing down to'the case of State ex rel. v. Sturgis, 276 Mo. 559, l. c. 570. Among many cases maintaining this doctrine, the following may be cited: Gannon v. Gas Co., 145 Mo. 502, l. c. 515; Johnson v. Grayson, 230 Mo. 380, l. c. 394; Printz v. Miller, 233 Mo. 47, l. c. 49; St. Louis v. Railroad, 248 Mo. 10, l. c. 25; State v. Frederici, 269 Mo. 689, l. c. 695, and Jordan v. Davis, 172 Mo. 599, l. c. 608. The reasons for this rule are set forth at length in the opinions in these cases, particularly in the Gannon case, and need not be repeated here.

A contrary doctrine was announced in Reichenbach v. Ellerbe, 115 Mo. 588, and in a few earlier cases, but the Reichenbach 'case seems not to have been followed since the decision in the Gannon case, and is no longer entitled to be considered as an authority in this State upon the point here involved. Since it does not seem, however, that Reichenbach v. Ellerbe has ever been expressly overruled, we now declare it overruled upon this question, to the end that it may no longer serve as a false light to the legal wayfarer.

With reference to the deed from Story and wife which appellant offered in. evidence, it suffices to say that no showing is made that any title to the lands here involved was ever vested in Story, nor is this particular tract embraced, except possibly by inference, in the lands described in the Story deed.

Appellant relies upon the theory that this is a proceeding in equity and that, therefore, this court may review the facts. We have repeatedly held that cases of this character are cases at law when law issues only are tendered, and are in equity when equitable issues are tendered. [Lee v. Conran, 213 Mo. 404, l. c. 413; Hauser v. Murray, 256 Mo. 58, l. c. 84; Minor v. Burton, 228 Mo. 558, l. c. 562.] The issues in the case at bar are legal and not equitable in their nature, and hence' the rules applicable to ordinary actions at law apply. In actions at law the weight even of undisputed parol evidence is for the triers of fact and their finding is conclusive on appeal. In this instance the trial judge was the trier of the facts, and his decision is to be treated, under the circumstances here shown, as the' verdict of a properly instructed jury.

The rule above announced makes it necessary that the judgment of the trial court in this case should be affirmed, which is accordingly done.

All concur except Woodson, J., absent.


text:
    ALBERT R. STROTHER et al. v. KANSAS CITY et al., Appellants.
    In Banc,
    June 19, 1920.
    1. POLICE DEPARTMENT: Tax for Maintainance: Statutory Direction. Tlie statute (Sec. 9779, R. S. 1909) by expressly declaring that the expense of the police department of Kansas City shall he paid “out of the next annual revenue of the city’’ plainly excluded the implication of an intention to confer authority upon, the city to levy a special state tax for the purpose.

      2. -: -: State Obligation: Maximum Bate. Notwithstanding a metropolitan police department is a state institution and an integral part of the general means used hy the State to preserve peace and security within its domain, and is not a mere municipal system established for a local purpose, the Legislature may lay the burden of supporting it upon the city and require its expenses to be paid out of the city’s annual revenues, and the city in carrying out that injunction cannot exceed the maximum rate of taxation limited by the Constitution, either in the form of a general municipal tax or in the form of a special state tax; and where the city has levied other taxes equal to the maximum constitutional limit, it cannot legally levy an additional special tax of two mills to pay the expenses of the police department, but those expenses must be paid out of its general revenues.
    3. -: -: Maximum City Tax. Cities cannot exceed, for any purpose, the limit of taxation fixed hy Section 10 of Article XX of the Constitution, for that section says that the rates mentioned “shall apply to taxes of every hind and description, whether general or special,” except those levied to pay past indebtedness.
    (t. -: -: General and Particular State Tax. The State having levied the maximum tax of fifteen cents on the hundred dollars’ valuation for general state purposes, is restricted hy the Constitution from levying a higher rate either for general state or special state purposes, and likewise is the city prohibited from levying a further state tax for a local state purpose; and the contention that the limit prescribed by Section 8 of Article X, applies only to the rate for general state purposes when laid on property throughout the State, and does not restrict the power to lay more taxes for a particular state purpose which immediately affects one locality and falls exclusively upon the property therein, cannot he allowed, for two reasons, first, because the legislature has no power to levy any such special or local state tax, and, second, it has not attempted to do so, or to empower the city to levy it.
    5. -: -: -: Levy As Incident of Obligation: Ex Necessitate. The plea that as the Legislature laid on the city the obligation to defray the expense of its police department and as money to do that can he obtained only hy a new tax, the power of the city to lay a special tax for the purpose in excess of the constitutional maximum limit goes with the obligation as an incident and ess necessitate, cannot he allowed, for the reason the statute required the expense to he paid “out of the next annual revenue of the city,” and therefore the asserted power did not go as an incident.

      Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.
    Affirmed.

      E. M. Harber and M. A. Fyke for appellants.
    (1) Under the statute (R. ¡3. 1909, sec. 9778) it is made mandatory upon the city to support and maintain the Metropolitan Police System in Kansas City. Reynolds v. Jost, 26 Mo. 51; State ex rel. v. Mason, 153 Mo. 51. (2) The tax levied for the support and maintenance of a metropolitan police system is not levied for a municipal purpose. Hence it is not violative of Section 1 of Article 5 of the Charter of Kansas City. Nor is it violative of Section 11, Article 10 of the Constitution of Missouri. State ex rel. v. Field, 119 Mo. 593; State ex rol. Taro v. City of Everett, 172 Pac. 752; Toung v. Kansas City, 152 Mo. 661; State v. Owsley, 122 Mo. 68; State v. Board of Education, 141 Mo. 49. (3) The two mill tax for the support of the police system is not violative of Section 8, Article 10 of the Constitution of Missouri. Hamilton v. County Court, 15 Mo. 1; State ex rel. v. County Court, 34 Mo. 546; Commonwealth v. Commrs., 37 Pa. St. 277; Commonwealth v. Perkins, 43 Pa. St. 400; State, v. Street, 117 Ala. 203; Hare v. Kennedy, 83 Ala. 608; Gilkerson v. The Federal Justices, 13 Gratt. 577; Douglass v. Town of Harrisonville, 9 W. Ya. 135; Powell v. Parkersburg, 28 W. Va. 706; Norfolk v. Ellis, 26 Gratt. 226; Eyre v. Jacob, 14 Gratt. 434; Norfolk v. Chamberlain, 89 Va. 202. (4) The establishment of a metropolitan police system for the large cities is hut the éxercise of the police power of the sovereign state. Reynolds v. Jost, 265 Mo. 51. “The exercise of'the police power of the State shall never he abridged.” Mo. Constitution, see. 5, art. 12. And is inalienable, even by express grant. Tranbarger v. Railroad, 250 Mo. 55; Railroad v. Tranberger, 238 U. S. 76; State v. Public Service Comm., 204 S. W. 49; City of Fulton v. Public Service Comm., 204 S'. W. 386; Nut & Bolt Co. v. Lt., Heat & Power Co., 204 S. W. 10*74; St. Louis v. Public Service Comm., 207 S. W. 799. (5) Tbe maintenance of city government is essential to tbe health, safety and general welfare of the people of the city, and consequently the limitation of indebtedness imposed (by the Constitution) could not have been intended to be so far exclusive as to necessitate the suspension of government. Rauch v. Chapman, 16 Wash. 568, 48 Pac. 253, 36 L. R. A. 407; Grant v. City of Davenport, 36 Iowa, 396; Gladwin v. Ames, 30 Wash. 608, 71 Pac. 189. (6) The obligation to maintain the metropolitan police system is not an obligation or debt incurred by assent, agreement or contract, but is an obligation imposed by law, and stands upon the same footing; as a debt or judgment arising in an action ex delicto. The estimate of the police commissioners is in the nature of a judgment against the city, the payment of which is mandatory. Conner v. Nevada, 188 Mo. 153; State ex rel. v. Pike County, 144 Mo. 280; Ex parte Loving, 178 Mo. 220 ; State ex rel. v. Board of Education, 153 Mo. 23; Lewis v. Widber, 99 Cal. 412; Rauch v. Chapman, 16 Wash. 568.

      James G. Smart for respondent; Albert B. Strother pro se.

    (1) The law establishing the Metropolitan Police System in Kansas City, in express terms requires the expenses thereof to be paid out of the ‘ ‘ annual revenue of the city,” and there is no other source provided for the payment thereof. R. S. 1909, sec. 9778; State ex rel. v. Jost, 265 Mo. 51; R. S. 1909, art. 17, chap. 84, passim; Laws 1911, p. 348; Laws 1915, p. 364. See also: State ex rel. v. Mason, 153 Mo. 23; State ex rel. v. St. Louis County Court, 34 Mo. 546; Hamilton & Treat v. St. Louis County Court, 15 Mo. 3. (2) The “annual revenue of the city” is the money derived from general taxes, license taxes g.nd'other public municipal charges, not impressed with a trust. State ex rel. v. Mason, 153 Mo. 23, 54. (3) The law imposing the obligation to support the police department having specified the fund from which such expenses are to be paid, no other funds can be used for such purpose. The two-mill tax is, therefore, void. Pettis County v. Kingsbury, 17 Mo. 479; State ex rel v. Trammel, 106 Mo. 510. (4) The charter of Kansas City limits the rate of the general tax for municipal purposes to ten mills on the dollar of assessed value, and for building purposes after a vote of the people to two and one-half mills on the dollar, and Ordinance 34613 having levied these rates in full, the excess two-mill tax is void. Kansas City Charter 1908, pp. 206-211; Sections 1 and 2 Article 5; Carr v. St. Louis, 9 Mo. 190. (5) The Constitution limits the rate of taxes that can be levied by Kansas City for municipal purposes to ten mills on the dollar. -The two-mill tax being in excess of this rate is void. Mo. Const, sec. 11, art. 10; Overall v. Ruenzi, 67 Mo. 203; Arnold v. Hawkins, 95 Mo. 569; Black v. McGonigle, 103 Mo. 192; Brookfield v. Tooey, 141 Mo. 619; Brooks v. Schultz, 178 Mo. 222; Union Trust Co. v. Pagenstecher, 221 Mo. 121; Board of Commrs. v. Peter, 253 Mo. 520; (6) By the Constitution, Kansas City' cannot “become indebted in any manner or for any purpose to an amount .exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose.” The support of the police department is not one of the purposes for which such indebtedness may be increased and it is not claimed any such assent was given to the two-mill tax. This limitation applied to all obligations ex contractu, whether created by contract or imposed by legislative enactment. The answer pleads that the total municipal obligations including the police expenses could not be met by the general levy of ten mills and that therefore the two-mill lax was “necessary.” The legal conclusion is that the two-mill tax is illegal and void. Mo. Const, sec. 12, art. 10; Barnard v. Knox County, 105 Mo. 382; Mountain Grove Bank v. Douglas County, 146 Mo. 42; State ex rel. v. Wabash Rd. Co., 169 Mo. 563 ; State ex rel. v. Wilder, 197 Mo. 1; State ex rel. v. Gordon, 265 Mo. 181; Lake County v. Rollins, 130 U. S. 662, 32 L. Ed. 1060. (7) If the two-mill tax is for a state purpose, then it could only be levied by the General Assembly itself by a law providing for it, and there is no such law-. Mo. Const, secs. 1 and 10, art. 10; State ex rel. v. Ashbrook, 154 Mo. 375, 388. (8) If the two-mill tax is for a state purpose, then it is void because it exceeds the limit fixed by the Constitution and laws for state taxes. Mo. Const, sec. 8, art 10; R. S. 1909, sec-. 11415, as amended by Laws 1915, p. 393; R. S. 1909, sec. 11416; State ex rel. v. Stephens, 146 Mo. 662; .Board-of Commrs. v. Peter, 253 Mo. 5201, 537. See also: Mo. Const, sec. 16, art. 9; St. Louis v. Dreisoerner, 243 Mo. 217. (9) The two-mill tax, being unconstitutional and void, to sell the property of respondents for nonpayment thereof, as appellants admit they intend to do if such tax is not paid, would deprive respondents of their property without due process of law in violation of Missouri Constitution, sec. 30, art. 2, and of Section 1 of the 14th Amendment of the Constitution of the United States.
   GOODE, J.

The parties are agreed about the facts and the issues in this case, so we adopt the statement of them prepared by the respondent.

“The Board of Police Commissioners of' Kansas. City, Missouri, made and certified to the Common Council of said city, an estimate of the amount of money necessary for the support and maintenance of the police department of said city for the fiscal year 1919, as required by Article 17 of Chapter 84 of the Revised Statutes of 1909, as amended. Thereafter, and on April 22, 1919, said Common Council passed and the Mayor approved Ordinance 34613, levying property taxes for said city for said fiscal year. The first section of the ordinance is as follows:

“ ‘Be it. Ordained by the Common Council of Kansas City:

“ ‘ Section 1. Taxes for the fiscal year of 1919, commencing on the 21st day of April, 1919, are hereby levied on all property in Kansas City, Missouri, Hablé to taxation for state and county purposes, and not by general law exempt from municipal taxation, as follows, to-wit:

“ ‘First. A general tax of ten mills on each dollar of assessed value for general purposes.

• “ ‘Second. A tax of one mill on each dollar ot such assessed value, which tax is necessary and will be sufficient to pay the amount certified.to the Common Council by the Comptroller to be raised by taxation for the payment of coupons falling due during the fiscal year 1919.

“ ‘Third. A tax of one-half mill on each dollar of such assessed value, which tax is necessary for the maintenance of the Water Sinking Fund, created for the redemption of the city’s outstanding Kansas City judgment and water works bonds, at the time of their maturity.

“‘Fourth. A tax of one mill on each dollar of such assessed value, which tax is necessary for the maintenance of the General Sinking Fund, created for the redemption of the city’s outstanding Kansas City general bonds, at the time of their maturity.

“ ‘Fifth. A tax of two mills on each dollar of such assessed value for the support and maintenance of the Metropolitan Police System in Kansas City, Missouri.’

“The respondent Albert R. Strother, owning real property subject to- city taxation, tendered all the taxes levied by said ordinance, except the two-mill tax levied by subdivision fifth of Section 1 for the support and maintenance of the police department. This tender was refused. Thereafter said respondent, as plaintiff, filed this suit to enjoin the collection of said two-mill tax and to remove the cloud cast thereby upon his title to said real property. This suit was brought on behalf of the named plaintiff and all other persons similarly situated who might elect to come in and be made parties thereto. Thereafter the respondent,- Williams Realty Company,' as owner of real property subject to city taxation, after a similar- tender and refusal, came in and was made a party plaintiff and filed a similar petition.

‘ ‘ The basis of the' suit is' that said two-mill tax is illegal and^ unconstitutional because in excess of the highest rate of taxation authorized by the charter of Kansas City and particularly by Sections 1 and 2 of Article 5 of such charter, and also in excess of the highest rate of taxation which Kansas City is authorized by the State ■ Constitution, and particularly by Sections 11 and 12 of Article 10 thereof, to levy, and is also in violation of Sections 1 and 8 of said 'Article 10, and Section 30 of Article 2 of said Constitution and of Section 1 of Article 14 of the Amendments to the Constitution of the United States.

“The answer of the defendants admits the facts pleaded, but denies the legal conclusions ’stated. It further pleads the estimate of the Board of Police Commissioners, and alleges that it was mandatory upon the city to provide the money to meet such estimate which could not be done, and also provide money for other city expenses by the ten mills levied for municipal purposes, and it was therefore ‘necessary, in order that sufficient money might be raised for municipal purposes to carry on and support the business of the city, to levy a tax of ten mills on the dollar, and ‘for the support and maintenance of the ■ Metropolitan Police System, a further -tax of two mills on the dollar; that said two-mill tax is not a. tax for municipal purposes, but is to meet an obligation or liability imposed on the city by . the State which can be met in no other way, and said levy is not violative of any provision of the charter, .or of any provision of the Constitution of Missouri, or of the .United States.’

‘ ‘ The reply admits the obligation of the city to support the police department and alleges that by the express terms of the law imposing such obligation it must be met ‘out of the annual revenues of said city and out of no other source or revenue whatever, ’ and that there is no law authorizing said two-mill tax.

“It further alleged that if said two-mill tax is for ‘a state purpose as alleged in said answer (which allegations plaintiff denies) then any law by which' such obligation or liability was attempted to be imposed upon said city, and by which it was attempted to authorize said city to levy a tax to meet the same, would be in violation of said Section 1 of Article 10' and void, and said tax is therefore unconstitutional and void as in violation of said Section 1 of. Article 10. ’

“The reply then pleads Section 8 of Article 10 of the Constitution, and alleges that the taxable property of the State is more than $900,000,000, and that the County Court of Jackson County, on May 20, 1919, levied the full fifteen cents on the one hundred dollars for state purposes, and that if said two-mill tax is ‘a state tax, as alleged in said answer (which allegation plaintiff denies) then the same was and is in excess of the rate of tax for all state purposes as fixed by said Section 8 of Article 10 and by the laws of the General Assembly passed thereunder,’ and is therefore void. .

“The defendants filed a motion for judgment in their favor on the pleadings and this was overruled and exceptions saved. The case was submitted on the pleadings and agreed facts, and judgment was rendered for respondents as prayed in their petition, they paying into court, as required by such judgment, the taxes tendered and found legally due. After the usual steps, defendants appealed to this court.”

We .have been pointed to no statute and know of none which gives the power to the Common Council of Kansas City, to levy a tax of two mills on the dollar of assessed values in the city, in order to defray the cost" of maintaining its Metropolitan Police System. The able counsel for defendants' do not say there is a statute which directly confers the power, but insist it was conferred by necessary implication when the General Assembly enacted the law imposing on the city the obligation to maintain the department. One of the premises laid down as leading to that conclusion is that it was-within the constitutional power of the General Assembly to create a police system for the city as a necessary instrumentality for the discharge by the State of its fundamental duty to protect life and property; and that it was also within the power of the Assembly to lay upon property in the city the burden of defraying the expense of the system; a proposition upheld generally by both courts and commentators, and by the decisions of this court in State ex rel. Reynolds v. Jost, 265 Mo. 51, and State ex rel. v. Mason, 153 Mo. 51. The second premise is that the system created in the exercise of said power, is a state and not a local system; a proposition also decided in the cited cases. From those two premises the conclusion is drawn that when the General Assembly established the system, without appropriating or otherwise providing the money to maintain it, authority was delegated to the city as the State’s agent to levy and collect a tax for .the purpose. The pertinent statutes are found in Article XVII, Chapter 84, Revised Statutes 1909, which article contains the laws applicable to cities with one hundred and fifty thousand and less than three hundred thousand inhabitants. [R. S. 1909, Art. 17, Ch. 84.] Section 9778 of that article charges the police board of a city belonging to the described class, as Kansas City does, with the duty to estimate at the beginning of each calendar year, what sum of money will be needed for the ensuing fiscal year to enable the board to perform the duties imposed on them by the statutes, and to certify the estimate to the municipal assembly. Upon receipt of the certificate the assembly is commanded to set apart and appropriate the amount so required, payable out of the next annual revenue of the city. Provision is also made for the payment in the same way for any extra police force the board may find it necessary to call out. The following section authorizes the board of police to make monthly requisitions on the treasurer, etc., .of the city for the sums the board may deem necessary for the execution of their duties during the months, and says the sums so required shall be appropriated, and, by said disbursing officer, placed to the credit of the police department, and such money so appropriated shall be paid out of the city treasury only upon warrants drawn' by the president of the board and countersigned by the city comptroller, as it may be needéd to meet the current expenses of the board of police. [Sec. 9779.]

Even if authority to the city to levy a special tax to maintain the police department could be implied in any event, clearly it cannot be when the Legislature has expressly declared the expense of the department shall be paid out of the next annual revenue of the city. By providing for maintenance out of the annual revenues, the Legislature plainly excluded the implication of an intention to confer authority to levy a special state tax for the purpose. The designation of a particular mode of payment is inconsistent with the right to adopt a different mode, on the principle that the expression of one theory operates to exclude alternatives. [State ex rel. v. Trammell, 106 Mo. 510.]

As the Police Department of Kansas City is a state institution, and an integral part of the general system of means used by the State to preserve peace and security within its domain, and is not merely a municipal system established for a local purpose, it would seem that its cost would fall naturally and according to the intention of the present Constitution, upon the revenues of the State. [Constitution, art. 10, sec. 11.] However, it has been settled by repeated decisions that the Legislature may lay the burden of supporting á police department on the annual revenues of the city where the department is established, without infringing the Constitution, and that question cannot be reopened. [State ex rel. v. Mason; State ex rel. v. Jost, supra.] But it has not been decided that the constitutional limitation on taxation may be exceeded to maintain a police department or for any other purpose; but that those limitations cannot be exceeded has been declared, we believe, in every decision upon the subject. [State ex rel. v. Stephens, 146 Mo. 662; State ex rel. v. Railroad, 169 Mo. 563.] According to the conceded facts, the city has levied other taxes to the constitutional limit for the year 1919, and the tax in controversy, if laid by the city in its own capacity, carries the total levy of two mills on the' dollar beyond that limit; that is, the special levy is excessive in the entire amount of it. Cities cannot exceed, for any purpose, the limit of taxation fixed by Section 10 of Article XI of the Constitution, because the section says .the rates allowed “shall apply to taxes of every kind and description, whether general or special, ’ ’ except those levied to pay past indebtedness. In enforcing that declaration of the Constitution, this court decided that a city tax laid in excess of the limitation to maintain a library was void, although the Legislature had authorized it. [Brooks v. Schultz, 178 Mo. 222.] The position taken in that case in favor of the special tax was that it was not levied under the authority of Section 11, Article X, which purports to limit the rate of taxation allowed to municipalities “for city and town purposes,” but instead, under a power specially granted by the General Assembly, was levied pursuant to Section 10 of said article, which prohibited the Assembly to impose taxes on cities for municipal purposes, but in words immediately following, declared the Assembly “may, by general law, vest in the corporate authorities thereof the power to assess and collect taxes for such purposes.” The court said Section 11, if interpreted literally, only limited the power of cities to tax for city purposes; that is, to raise the general revenues, thereby giving room for the notion that when empowered by the legislature, a municipality might make a special levy for an expense not incidental to carrying on its government. The court then rejected said notion, saying the provision of the Constitution making the rates prescribed apply to .taxes of every description, was intended to preclude such an interpretation; said further, that the General Assembly could not, by force of Section 10, Article X, of the Constitution, authorize municipal corporations to levy, taxes for local purpos'es above the rates prescribed in Section 11. That decision is conclusive in favor of the proposition that the levy by Kansas City in excess of ten mills on the' dollar, was void if the excess was for local' purposes.

Counsel for the city maintain in an ingenious argument, that the State itself, through the General Assembly, levied the tax in controversy, using Kansas City as its agent for the purpose, and made the levy for a general state purpose, instead of a local one. But a state tax exclusive of the one in question, has been levied for the year 1919 up to the constitutional limit of fifteen cents on the'hundred dollars of assessed values. Counsel contend that limit, .which is prescribed in Section 8 of Article X, governs only the rate for general state purposes when laid upon property throughout the State, and does not restrict the power to lay more taxes for a particular state purpose which immediately affects one locality and' falls exclusively on the property therein: that this power, which is asserted in effect to be unrestricted, may be exercised either by laying the tax directly by a statute, or indirectly by empowering a city to lay it. The tenor and spirit of the decisions construing the constitutional limitations on taxation for both state and local purposes, have been uniformly against this interpretation, even if the exact point remains' undecided. In. State ex rel. v. Stephens, 146 Mo. 662, 683, the court, after deciding the tax there questioned of two per cent .on the value of railway cars used in this State during a year by companies other than railway companies, was a property tax, considered whether it violated Section 8, Article X, of the Constitution, and held that as the two-per-cent levy would take two dollars out of every hundred dollars worth of cars, it exceeded by one dollar and eighty-five cents the constitutional rate of fifteen cents on the hundred dollars of value. The decision is not upon the precise contention made for the city, because the car tax was levied uniformly throughout the State; hut the reasoning of the opinion, like that of all others bearing upon the point, is that in no instance of taxation can the General Assembly go beyond the limit named in Section 8, Article X.

However that may be, it is certain the Legislature had no intention, either to levy or empower the city to levy the tax in question as a state tax laid to meet an item of expense incurred by the state government; otherwise, the expense would not have been imposed on the next annual revenues of Kansas City. That the effect of the statute is neither to lay a special tax for the police department, nor authorize one to be laid, was decided, in effect, in State ex rel. Reynolds v. Jost. The case of State ex rel. v. Field, 119 Mo. 593, 611, et seq., cited for the city in favor of its contention that if the police tax is for a state purpose, it is constitutional, did not decide nor intimate that the Legislature could levy, or authorize the levy of a special tax for state purposes, in excess of the rate prescribed in Section 8 of Article X; but only decided the Legislature could impose on a municipality the cost of some state institution which specially benefited the locality, and that to raise the needed money could empower a municipality, acting as agent of the State, to levy a tax to pay the cost (loc. cit. 613). Other cases cited for defendants are: Rauch v. Chapman, 16 Wash. 568; Gladwin v. Ames, 30 Wash. 608; Grant v. Davenport, 36 Iowa, 396. The Iowa case is not apposite, and the two from the State of Washington adhere to the doctrine that a county debt incurred beyond the income and ¿revenue provided for a year, is nevertheless not invalid under a constitution prohibiting debts to be incurred above, said limit, if it was required for the maintenance of a means to carry out the fundamental purposes of government, like the courts, policemen, etc. . The doctrine was announced in Potter v. Douglas Co., 87 Mo. 239, and abjured in Barnard & Co. v. Knox County, 105 Mo. 382, and in State ex rel. Hill v. Railroad, 169 Mo. 563, and probably in other decisions.

The plea is made that as the Legislature laid on the city the obligation, to defray the expense of the police department, and as money to do that can only be obtained by means of a new tax, the full revenue realized from the ten-mills levy being required to defray the ordinary city expenditures, the power to lay a new tax went with the obligation as an incident to it and ex necessitate. The asserted power did not go as an incident of the burden put on the city, for the reason stated heretofore, that the statutes say the burden shall be carried by the annual revenues paid into the city treasury.

Whether an apportionment of funds can be arranged between the city officials and the police board, which will suffice to maintain an efficient police department without impeding the municipality in the performance of its proper functions, we know not; but hope and believe it can be. At all events, the need of the city for more revenue, however great it may be, cannot justify the levy of an unauthorized or unconstitutional tax.

The judgment is affirmed.

All concur, except Wood-son, J., absent.