author: WOODSON, J.

text:
    T. L. WRIGHT LUMBER COMPANY, Appellant, v. RIPLEY COUNTY.
    Division One,
    February 20, 1917.
    1. CONVEYANCE: Island in River: Not Surveyed: Reservation. An unrestricted deed conveying land bordering on a river, or a Government patent conveying land, adjacent to a non-navigable river, conveys all accretions thereto; and a patent conveying by Government subdivisions lands bordering a non-navigable river conveys all land between the meander line of the shore and the middle thread of the river, unless previous to the issuance of the patent the Government surveyed such lands as governmental subdivisions, or expressly reserved them when not surveyed.
    2. NAVIGABLE STREAMS: Current River: Judicial Notice. The court takes judicial notice of what streams are navigable and what aré not navigable. Current River is not a navigable water of this State, and will not be conceded to be such although appellant admits it to be in his brief.
    3. APPELLATE PRACTICE: Inadvertent Admission in Brief. An admission in the record by counsel for appellant which is contradictory of the whole theory of his case and of his brief and argument based upon a contrary fact, will be considered on appeal as having been inadvertently made, or as a clerical error in the writing or printing of the record.
    4. PUBLIC LANDS: Priority of Field Notes. The field notes of United States surveys of public lands made prior to their conveyance to the State or to private persons, will control in ascertaining corners and lines, even though the monuments established by the surveys cannot be found.
    5. -: Island in Current River. A small island of a- few acres in Current River, east of the middle thread of the river, existing prior to 1821 when the Government surveyed the surrounding lands, the field notes showing meander lines running along or near the banks of the river, but neither crossing nor touching the island and the survey in no wise mentioning- Oi including but entirely ignoring it, was included in the patent of the fractional Government sub-division of the shore land on the east bank made in 1849, which did not reserve it. It was not reserved and relinquished to the State upon the admission of Missouri to the Union.'
    6, -: -; purpose of Meander Lines: Include Islands and Overflow Lands. Meander lines run by a Government survey along or near the margin of a non-navigable stream were run for the purpose of ascertaining the exact quantity of upland to be charged for, and not for the purpose of limiting the title of the patentee to such meander lines. Low and overflow lands and small islands within the banks of such a river were included by a patent conveying the land by Government fractional sub-divisions.
    7. SURVEYS: No Established Corner. A survey which does not begin at a corner established by the Government, or a corner established as required by Sec. 11322, R.. S. 1909, though it otherwise pretends to follow field notes from another corner assumed to be right, is not admissible in evidence, and cannot be used to discredit an official survey made in pursuance to an order of the circuit court under the mandate of Secs. 10184 and 10188, R. S. 1909.
    Appeal from Cape Girardeau Circuit Court. — Hon. ■ Frank Kelly, Judge.
    Reversed and remanded.

      Chas. B. Butler for appellant.
    (1) When the Government of the United States has conveyed its lands along the hanlc of the river and has sold and conveyed such land hy Government subdivisions, its patent conveys all the land between the meander line and the middle thread of the river, unless previous to such patent it has surveyed such lands as governmental subdivisions or expressly reserves them 'when not surveyed. Jeffries v. Land Co., 134 U. S. 178; Covley v. Golden, 117 Mo. 33; Stoner v. Royar, 200 Mo. 444. (2) - Field notes of United States surveys of public lands will control in ascertaining locations, even though the monuments established by the Government surveyor cannot be found. Bradshaw v. Edelen, 194 Mo. 640; ’Carter v. Hamback, 139 Mo. 243. (3) The corners established by United States surveyors in surveying public lands are conclusive as to the actual location of the boundary lines of sections and such subdivisions thereof are authorized by the laws of the United States. Federetzie v. Baker, 193 Mo. 228. (4) A riparian owner on a navigable stream owns to the low watermark. Frank v. Goddin, 193 Mo. 390; Coveley v. G-olden, 117-Mo. 33. (5) Islands in a stream belong to the holder of title to lands under adjacent waters. United States v. Chandler-Dunbar Co., 209 U. S. 447.

      James F. Fulbright and Chas. L. Ferguson for respondent.
    (1) The United States relinquishes to each State, upon its admission to the Union, all proprietary interest in the soil under the waters of the navigable rivers and lakes, and all proprietary interest in the beds of navigable rivers and lakes, as incidental to the sovereignty of the State. Pollard v. Hogan, 3 How. 212; Hardin v. Shedd, 190 U. S. 519; Cooley v. Golden, 117 Mo. 51. (2) The title to and ownership of an island in a navigable river which at the time of the admission to the Union of the State in which such island is situate was small, of no apparent value, unsurveyed by the Government and which the Government surveyors did not deem of sufficient size and value to survey, passes to the State as a part of the bed of the river. Webber v. Axtell, 94 Minn. 375; United States v. Chandler-Dunbar Co., 209 U. S. 447; Railroad v. Butler, 159 TT. S. 87; Whitaker v. McBride, 197 U. S. 510. • ‘(3) The proprietary rights in the beds of navigable streams may he reserved by the State or the ownership of the beds of navigable streams may he relinquished by the State to the riparian owner, the extent of the riparian owner’s grant being construed and controlled wholly by the local law of the State as established by its Legislature or courts of final resort. Packer v. Bird, 137 U. S. 661; Barney v. Keokuk, '94 U. S. 324; Hardin v. Jordan, 140 U. S. 372; United States v. Chandler-Dunbar Co., 209 U. S. 447; Railroad v. Butler, 159 U. S. 87; Kaukanna Co. v. Green Bay & Miss. Co., 142 U. S. 254; Shively v. Bowlby, 152 U. S. 1. (4) In Missouri the riparian owner of land bounded by a navigable stream owns only to low watermark. Benson v. Marrow, 61 Mo. 351; Cooley v. Golden, 117 Mo. 34; Perkins v. Adams, 132 Mo. 131; McBane v. Johnson, 155 Mo. 191; Moore v. Farmer, 156 Mo. 47; State ex rel. v. Longfellow, 169 Mo. 109; Frank v. Goddin, 193 Mo. 390; Stonar v. Royar, 200 Mo. 451. (5) The general rule adopted hy both State and Federal courts is that meander lines are not run as boundaries of the tract surveyed, but for the purpose of defining the sinuosities of the hanks of the stream and as a means of ascertaining the quality of land. The stream or other body of water and not the meander line as actually run on the ground is the boundary. 5 Cyc. 898; Railroad v. Schurmen, 7 Wall. 272.; Horne v. Smith, 159 U. S. 40; Hardin v. Jordan, 140 U. S. 371; Jefferis v. Land Co., 134 U. S. 178; Frank v. Goddin, 193 Mo. 390. (6) In Missouri the riparian owner owns only to low watermark and where the stream is the boundary of a grant, it remains the shore owner’s boundary no matter how far the water line shifts either inwardly or outwardly. Frank v. Goddin, 193 Mo. 190.
   WOODSON, J.

— The plaintiff brought this suit in the circuit court of Ripley County, under section 2535, Revised Statutes 1909, against the defendant, to ascertain and decree title to the land described in the petition —the same being a small island in Current River, consisting of about five and one-half acres, near the city of Doniphan, Missouri. The judgment was for the de-féndant, and the plaintiff appealed the cause to this court.

The plaintiff’s evidence tended to show that the United States patented the land on January 1, 1849, to Lemuel Kittrell, and that through mesne conveyances the plaintiff, on October 27, 1906, acquired title to the same. That the island in question was -in existence at the time, and long prior to 1821, the date of the admis-sion of Missouri into the Union. That it lies in said river opposite the southwest fractional quarter of the northeast fractional quarter of section twenty-seven, township twenty-three north, range two east, in Ripley County, Missouri.

D. K. Ponder testified that in the year 1842 the island then existed, and that then there were trees a foot and one-half through growing on it.

Thomas Mabrey testified that the island was there in 1859 and has been there ever since.

T. L. Wright testified that he had known this island for forty years and that there were standing trees on it more than two hundred' years old; and that the timber on the island and on the adjacent land showed no difference as to age.

The photographs introduced in evidence tend to show that the island is not of recent origin.

The field notes of the survey made by the United States in 1821 do not show that this island existed, but the report of this survey does not show that the meander line 'ran across or up the island in the direction the river runs.

A report of a survey made by W. IT. Hippolite, a civil engineer, by order of the circuit court of Ripley County in 1895, to be used in another case involving land in this same vicinity, requiring the establishment of the certain lines and comers made and established by the United States in 1821, was introduced in evidence. (While the record does not, in so many words, state that this survey was ordered made’ under section 10207, Revised Statutes. 1899, providing for the establishment of lost Government corners, etc., yet that fact, I gather therefrom, is clearly inferable.)

The report, which is quite lengthy, but in so far as it is here material, reads as follows:

“Dear Sir:
“As per your order of court of the April term, 1895, ordering me to make an accurate survey in the ease of D. K. Ponder v. J. F. Page, beg to advise that I have this day completed said survey and made the following report of same:
, “In company with the plaintiff and defendant, in the case, together with a number of old residents of this (Ripley Co.) I obtained all available information of Govt, corners and witness-trees in the vicinity, by actual research on the premises, and after getting which, began my survey for the accurate location of the east and west quarter section line of section 26, township 23, North, range 2 East, of the 5th P. M., said line being the one in dispute.”

Then follows a long report of the courses, distances, cornér stones, witness-trees, etc., found by him, and how from those courses, distances, stones and trees he established the section line above mentioned and the quarter section corner of the southeast corner of the southwest .fractional quarter of the northeast fractional quarter of said section twenty-seven.

The old corner stones, witness-trees, etc., with the new ones established by Hippolite, were shown by said report, all agreeing with the contention of plaintiff in this case.

J. H. Greason testified that he was a civil engineer, and a graduate of the Missouri University; that he made the plat offered in evidence appearing in the abstract, which is too large to be set out in this statement of the case. That he waá familiar with island designated thereon ; that he ran the meandering line shown on said plat-indicated by a light pencil line, passing along the island up and down the river, and through stations marked thereon six and seven. That he found quarter section corner of the southeast corner of the southwest fractional quarter of the northeast fractional quarter of said section twenty-seven, before mentioned, and established by Mr. Hippolite; that he had with him Hippolite’s field notes, which he followed; that when he came out on the line between twenty-six and twenty-seven, he found at the corner a Government tree, and that he ran this line, .indicating, up to the northeast corner of said section’ twenty-seven. He then states in detail hów he surveyed the river, island and lands shown by said plat; that it was correct and corresponded in the main with that of Hippolite.

That the Government field notes do not show the existence of the island; that he was familiar with the rules of the Government in surveying islands in rivers, lakes, etc., and produced and read them to the court; that he followed those rules in making the survey mentioned, except he showed the island in his plat.

Wm. M. Andrews, a civil engineer and graduate of the University of Indiana, testified that he ran the meander line of Current River in said section twenty-seven and surveyed the island in question; made the plat introduced in evidence, and that the meander line ran through stations five, six and seven on • the plat, said stations being on said island; and that he took the measure of distances from the United States field notes and Hippolite’s survey.

That the plaintiff and those through whom he claims title, have been in the actual, open, notorious, exclusive and adverse possession of the island for more than twenty years just before the institution of this suit, claiming title thereto, and had paid all the taxes against the same during that period.

The evidence for the defendant tended to show the following facts:

That Current River was a navigable stream; that the river runs in a southeasterly and northwesterly direction at that point with one of the channels running on the east and one on the west side of the island.

In 1821, the United States Government had surveyed and platted the lands upon each bank of the river in that vicinity. As far back as the memory of man runneth not to the contrary, the island had existed at that point. That fifty years ago it was a small, narrow strip of land, covered with small brush and trees, and in 1842 the island was about a quarter of a mile in length, running up and down the .river, and about four hundred feet in width; but its exact' size at the date the United States survey was made, is not shown. In later years the accretions to the island have increased its area to some ten or twelve acres.

That this island was not noted in the field notes in the United States Survey and no representation of the island was made on the plat constructed by the Government from those field notes. The island, as such, is not mentioned in the patent from the United States to Kitrell, nor in any of the mesne conveyances through which the plaintiff claims title thereto.

The defendant introduced S. P. Rodebaugh as a witness, who testified he was a surveyor and surveyed the island, ran certain meander lines, and made the plats defendant introduced in evidence. That in tracing the meander lines he did not follow those made by the United States survey, but began at a stake (presumably set by him) on the south line of said section, did not measure the distance from there to the river, nor attempt to get the correct starting point.

He was asked:

“Q. I will ask you if you went into what is supposed to be the corner of the southeast quarter of section twenty-seven, the corner that was referred to by Mr. Andrews and Mr. Greason in their testimony? A. Yes, sir.
“Q. State to the court whether there is anything to indicate that to be the corner of section twenty-seven? A. I don’t think the tree that Hippolite used is the correct tree; it stands in the wrong position, the place he calls for is too low and there is nothing but a hole cut in the tree; that is, there are no figures.
“Q. There are no evidences there to which he referred on which a man could reliably locate a corner? A.' No.”

I. The question presented for adjudication in this case is, in a sense, similar to that of accretions, in this: an unrestricted deed conveying land on the shore of a river will also convey all accretions thereto. The same is true where the United States conveys its lands adjacent to a non-navigable river, where it sells and conveys such lands by the Government sub-divisions, its patents convey all the land between the meander line on the shore, and the middle thread of the river, unless previous to the issuance of the patent it has surveyed such lands as governmental sub-divisions, or has expressly reserved them when not surveyed. That proposition has been expressly decided by the Supreme Court of the United States and by this court. [Jefferis v. E. Omaha Land Co., 134 U. S. 178; Cooley v. Golden, 117 Mo. 33; Stoner v. Royar, 200 Mo. 444.]

In discussing this question, this court, in the case of Cooley v. Golden, supra, on page 54, said:

“The next inquiry in order is, what land did plaintiff’s grantors acquire from the Government under their grant of the fractional section quarters, bordering on the Missouri shore of the river? These subdivisions on the side next to the river all have a common meandering line designating the river, shore. In the recent case of Hardin v. Jordan, 140 U. S. 371, Mr. Justice Bradley in delivering the opinion of the court says, in regard to such lines: ‘It has been the practice of the Government from its origin; in disposing of the public lands, to measure the price to be paid for them by the quantity of upland granted, no charge being made for the lands under the bed of the stream, or other body of water. The meander lines run along or near the margin of such waters are run for the purpose of ascertaining the exact quantity of the upland to he charged for, and not for the purpose of limiting the title of the grantee to such meander lines,¿ It has frequently been held, both by the Federal and State courts, that such meander lines are intended for the purpose of hounding and abutting the lands granted upon the waters whose margins are thus meandered; and that the waters themselves constitute the real boundary. [Railroad v. Schurmeir, 7 Wall. 272; Jefferis v. East Omaha Land Co., 134 U. S. 178; Middleton v. Pritchard, 3 Scam. 510; Canal Trustees v. Haven, 5 Gilm. 548, 558; Houck v. Yates, 82 Ill. 179; Fuller v. Dauphin, 124 Ill. 542; Boorman v. Sunnuchs, 42 Wis. 233, 235; Pere Marquette Boom Co. v. Adams, 44 Mich. 403; Clute v. Fisher, 65 Mich. 48; Ridgway v. Ludlow, 58 Ind. 248; Kraut v. Crawford, 18 Iowa, 549; Forsyth v. Smale, 7 Biss. 201; Illinois Revised Statutes, secs. 2395, 2396.] ... It has never been held that the lands under water, in front of such grants, are reserved to the United States, or that they can be afterwards granted out to other persons to the injury of the original grantees.’ ”

The following eases cited in effect hold that when the United States surveys its lands along the hanks of a non-navigable river, and has sold and conveyed such lands by sub-division, its patents convey the title to all the lands lying between the meander line and the middle thread of the river, unless previous to the issuance and delivery of such patent, it has also surveyed such lands as Government sub-divisions or has. expressly reserved them when not surveyed. [Webber v. Boom Co., 62 Mich. 626; Fletcher v. Boom Co., 51 Mich. 277; Granger v. Avery, 64 Me. 292; Jones v. Soulard, 24 How. 41; Middleton v. Pritchard, 3 Scam. 510; Chandos v. Mack, 77 Wis. 573; Railway v. Schurmeir, 7 Wall. 272; Jefferis v. East Omaha Land Co., supra.]

The opinion then proceeds, and holds that as to navigable streams, and where the tide ebbs and flows, .the rule is otherwise; the patent only conveys the land to the shore line.

In the case of Stoner v. Royar, supra, this court held that Congress did not by act prior to 1855 vest in the State the title to surveyed islands in the Missouri River, but clearly indicating that if unsurveyed or unreserved it would have conveyed it.

But counsel for defendant contend that under the admission of counsel for plaintiff that Current River 'is a navigable stream, the company, under the authorities cited, had never acquired any title to the island in controversy, and therefore the judgment of the trial court was correct and should be affirmed.

It does appear from the record that counsel for plaintiff made that admission, yet the whole theory of his case, brief and argument is based upon the fact that said river is not navigable, so we are driven to the conclusion that the admission was inadvertently made, or as written and printed was a clerical error, and should state that it was a non-navigable river; otherwise, counsel would be placed in the nonsensical position of making one admission and citing authorities in support thereof which destroy every vestige of his ease.

But independent of that, counsel for both parties know, and this court will take judicial notice of the navigable and non-navigable waters of this State. We had this question before this court in the case of State ex rel. v. Taylor, 224 Mo. 393. On page 483, the court said:

“And since this district was organized subsequent to the passage of the Act of 1903, it becomes unnecessary for us to determine whether or not section 8278,_ Revised Statutes 1899, authorized the county court to construct, straighten, widen, alter or deepen the Chariton River, a natural stream, etc., for the reason that said section was not then in force, but the Act of 1903 which in express terms authorized its improvement, provided it was not a navigable stream within the meaning of that act.
“But counsel for relators insist that even though the court should be of the opinion that the Act of 1903, p. 234, authorized the county court to improve a natural stream, still that act had no application to the Chariton River, for the reason that the act itself in express terms exempts its application to all navigable rivers, to which class they contend Chariton River belongs.
“There is no pretense that said river is in fact navigable, but the contention it that it is in law a navigable stream. The basis of this contention is an act of the Legislature passed in the year 1845 (Laws 1845, p. 299). That-act reads'as follows:
“ ‘ That the Grand Chariton River is hereby declared a public highway from its mouth, where it empties into the Missouri River, to the northern boundary of the State of Missouri; provided, however, that this act shall not be so construed as to affect the right of any person or persons who now have, or may hereafter have, a grist-mill or other machinery constructed on said river.’
“There is-nothing in this record nor in any public document or history of the State, to which our attention has been called, showing that the Chariton River in question is the Grand Chariton mentioned in the Act of 1845. It might be argued that they are one and the same river, for the reason that there is but one Chariton River in the State, and therefore the river in question was the river the Legislature had in mind. Assuming that to be true, the question then is, is the Chariton River a navigable river within the meaning of the Acts of 1903 and 1905 ?
“The Act of 1845 does not so- declare it to be a navigable river. The declaration there is that it is ‘a public highway.’ Mr. Webster defines the word ‘highway’ ás ‘A public road; a way open to all passengers. Syn. — Way; Road; path; course.’ And he defined the word ‘navigable,’ as, ‘admitting of being navigated; affording passage to vessels — as a navigable river.’
“The substance of the legal definition of the latter word, as given by Mr. Burrill, is, by the common law, a river is considered navigable only so far as the tide ebbs and flows into it. That is also the doctrine in several States, but not of this State. Here all streams which are actually capable of floating and of permitting the passage of ordinary boats upon the bosom of their waters are considered navigable rivers. [Hickey v. Hazard, 3 Mo. App. 480; O’Fallon v. Daggett, 4 Mo. 343.]
“One of the elementary rules of statutory construction is, the courts should give to the words of the statute their plain or ordinary and usual meaning, the presumption being that the Legislature used them in that sense.
“In the light of these definitions and well established rules of interpretation, can it be said that the Legislature intended to declare the Chariton River to be navigable by the use of the words in the Act of 1845 ‘a public highway?’ We think not, principally for the reason that it was not navigable as a matter of fact, and to so construe the act in question would be to convict the Legislature of not only doing a useless thing, but also of enacting a most foolish statute, which is not tolerated hy the canons of statutory construction.
“If we view this act in the light of numerous other acts of similar import, enacted about that time, it will show that the Legislature was simply trying to declare the channels of all such streams to he public highways so as to preserve the free flow and to preserve the use of the waters thereof unto the millers who had constructed grist-mills or other machinery along their hanks.
“The following among other acts are similar in character: Acts of 1839, pp. 81, 87, 88; Acts of 1841, pp. 114-115; Acts of 1843, pp. 69-70; Acts of 1848, pp. 120-121; Acts of 1855, pp. 474, 538 and 625.
“The Act of 1839 declared all'that part of Fourchea-curtois Creek below Sawyer’s Mill to he a ‘public highway.’ And the Act of 1841 declared Appel Creek from its mouth to Ingram’s Mill to he ‘a navigable stream,’ and so on to the end of the list. Almost invariably these acts refer to some mill or mill-dam; -and some of them, after declaring the stream to he navigable or a public highway, then, in the same section, expressly authorize the construction or maintenance of a mill-dam or draw across the same, for the purpose of propelling mills and other machinery, according to the general law of the State in relation to mills and mill-dams.
“When we consider the size, location and uses to which those streams were then being, put, the conclusion is- irresistible that the Legislature never once thought of constituting and declaring them and like streams to be public highways in the sense of navigability.* No ordinary boat could ply any of them and but few of them at ordinary stages of water were capable of floating •an ordinary canoe, while some of them during the dry season would scarcely float a pill box. To hold under this state of facts that it was the design of the Legislature to constitute and declare these small rivers and creeks to he navigable streams within the ordinary meaning of those words would be absurd and a reflection upon the intelligence of the Legislature and upon the court that should so hold. But, as before suggested, the Legislature intended by tliose and similar acts to grant or license mill-owners along these streams who then had or might thereafter construct grist-mills along any of .them, to construct and maintain mill-dams across the same for the purpose of conserving the waters thereof and generating power thereby with which to propel their mills or other machinery. This is the sensible view to take of all such acts, and the authority to construct and -maintain dams across them negatives the idea that they were to be kept open as public highways in the sense of being navigable rivers. Even if navigable (which they were not) before the bridges authorized to be constructed were built, clearly they would not be after those obstructions were thrown across them. The construction and maintenance of bridges across these small streams is absolutely inconsistent with the idea of their navigability.
“We, therefore, hold that the Chariton was not a navigable river witbin the meaning of said Acts of 1903 and 1905, authorizing the organization of drainage districts and the construction of drains as provided for thereby. Consequently, we also hold that neither of said acts exempted the Chariton River from the operation .of the drainage laws of the State.”

The opinion then proceeds to consider the proposition as to whether or not the Legislature of this State had the authority to declare that river a navigable stream, etc.

The Act of February 24, 1855 (Laws 1855, p. 181),_ declaring Current River a navigable stream is similar to the acts before mentioned; also to many other acts of the Legislature declaring numerous other small streams and creeks of the State navigable.

We are, therefore, of the opinion that even though it be conceded that the admission regarding Current River being navigable, was not a clerical error, yet as before stated, it is not in fact or law a navigable stream. It might as well be contended that an admission to the effect that the Missouri River is not navigable, would thereby wipe out the law of the State regarding such streams, as to wipe it out by. admitting that Current River is navigable.

The State has more than a passive interest in such rivers; they play an important part in lands and land titles also regarding the rights of the State to use them in connection with the construction of proper levees and drains for the protection of the public health and against high water and overflow, etc.

Current River is not navigable and we are not going to let this case go off on the admission that it is, and hereafter be plagued in the future by an opinion of this court holding that it is such, because, perhaps, counsel for plaintiff in this case admitted it to be such.

Returning to question under consideration before this digression:

It is well settled in this State that the field notes of the United States surveys of public lands made prior to their conveyance to the State or to private persons, will control in ascertaining locations of corners, lines and locations, even though the monuments established by the United States cannot be found. [Bradshaw v. Edelen, 194 Mo. 640; Carter v. Hornback, 139 Mo. l. c. 243.]

In the ease at bar, the report and surveys made by Hippolite and other engineers introduced in evidence by the plaintiff, were based upon the field notes, meander lines and such of the monuments then existing, established by the United States Government, which show that the island in controversy, which all the evidence tended to show was in existence and had been long before the date of the admission of this State into the Union, had never been surveyed by the Government, and said field notes and monuments themselves clearly show that the meander lines made by the United States ran along or near the banks of Current River, and did not cross, touch or undertake to survey this island in any manner whatever, but ignored it just as the Government ignores all other low and overflowed land lying below the meandering lines, and within the banks of such a river. As a rule, such lands are so small and comparatively worthless that they are not considered •by the Government in making surveys of the public lands, and when sold no charge is made for them. Of course, if there are large bodies of such lands worthy of consideration, then they are surveyed as other public lands are, and sold and conveyed as such.

The only evidence tending to disprove the foregoing facts is the testimony of S. P. Rodebaugh, a witness introduced by defendant, and a survey of the island made by him.

This evidence is wholly without probative force, for the reason that he stated that he did not start his survey from a corner established by the Government, nor a corner established by him, as required by section 11322, Revised Statutes 1909, but from a stake mentioned, indicated by a mark on his survey. This court in the case of Clark v. McAtee, 227 Mo. 152, in express terms held such a survey to be absolutely void, and not admissible as such; and for the same reason, the testimony of Rodebaugh was equally devoid of all weight, because he did not pretend to know where the true corner was, but assumed the stake mentioned was the true corner; if it was not, it being the basis of his testimony, then, of course, his testimony was worthless, the same as his survey.

To show the utter worthlessness of his testimony, he went to the length of discrediting the survey made by Hippolite, an official survey made by order of the circuit court, presumably under the mandate of section 10184, Revised Statutes 1899, as the court had no other authority to order it, and which by section 10188, Revised Statutes 1899, is made an official survey and required to be filed with the Recorder of Deeds in a well-bound book, indexed, etc., and declared to be competent evidence, etc.; and that discredit was not only based upon the starting point mentioned by him, but it was contradicted by witness-trees marked by the Government surveyors, as disclosed by their field notes and meandering lines. Pie disposes of the tree, by simply saying: “It stands in the wrong place, the place he calls for is too low and there is nothing bnt a hole cnt in the tree; that is, there are no figures.”

As previously stated, that tree was located as the Government witness-tree by the field notes and meandering lines made by the United States surveyors, and by a survey' made by Hippolite, starting from a ' corner established by him, as provided for by section 11322, Revised Statutes 1909, same as section 10207, Revised Statutes 1899.

There are other questions presented and discussed, hut the view we have taken of the case renders it unnecessary for us to notice them.

For the reasons stated, the judgment of the circuit court is reversed and the cause remanded.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    ORRIN ROBERTSON, Appellant, v. ESTHER ROBERTSON.
    Division One,
    February 20, 1917.
    1. DIVORCE: Verification of Petition: Jurisdiction. Unless the petition for divorce is accompanied by the affidavit required by the statute, the court acquires no jurisdiction of the case.
    2. -: -: Unsigned Affidavit, An unsigned affidavit is no affidavit at all, and where the statute requires an affidavit to accompany the petition, the court does not obtain jurisdiction unless the accompanying affidavit is signed by the proper party. And a divorce decree entered by default upon a petition to which an unsigned affidavit is attached, is void; and especially should an unsigned affidavit in a divorce case be held to be no affidavit at all, because many of the statements which the statute requires the affidavit to include can be known by the petitioner alone, and courts are too often imposed upon in such cases.
    3. PRACTICE IN SUPREME COURT: Certification from Court of Appeals. When a case is certified from a Court of Appeals to the Supreme Court, upon the dissent and certification of one of its judges, all questions involved are for consideration in the Supreme Court, just as if the case was one appealable to this court in the first instance.

      Appeal from Jasper Circuit Court. — Eon D. E. Blair, Judge.
    Reversed and remanded (with directions).

      C. W. Bigger for appellant.
    In divorce cases “the petition shall be accompanied by an affidavit.” R. S. 1909, sec. 2371. Without which the court acquires no jurisdiction, and the said affidavit must be signed by the plaintiff. Loveless v. Hinkle, 204 Mo. 208. An unsigned affidavit is void. Hargadine v. Van Horn, 72 Mo. 370; Norman v. Horn, 36 Mo. App. 424; Third National Bank v. Garton, 40 Mo. App. 120. This case, is, in point of law and fact, fully within the case of Dorrance v. Dorrance, 242 Mo. 625.

      Griffin & Orr and R. M. Sheppard, for respondent.
    (1) In the absence of a statute or ruling of court requiring it, the signature of affiant is not necessary for the validity of an .affidavit. There is no rule of Jasper Circuit Court, nor is there any statute of the State of Missouri requiring an affidavit to be signed by the affiant. Bouvier Law Dictionary — Title: Affidavit ; 1 Ency. Plead. & Prac. p. 313; Anderson Law Dictionary — Title: Affidavit; 1 Words and Phrases, p. 244. “The word affidavit ex vi terrfiini, means an oath reduced to writing.” State v. Headrick, 149 Mo. 403. “The omission of affiant’s signature does not affect the validity of the affidavit.” Gill v. Ward, 23 Ark. 16; Watts v. Womack, 44 Ala. 605. “An affidavit in attachment is not void because not subscribed if it was duly sworn to.” Fortenkeim v. Claflin, 47 Ark. 49; Turpin v. Road Co., 48 Ind. 45; Bates v. Robinson, 8 Iowa, 318; Wynkoop v. Judge, 113 Mich. 381; Bloomingdale v. Chittenden, 75 Mich. 305. “In the absence of a rule of court or statute requiring it, the subscription to an affidavit by "the affiant is not necessary.” Norton v. Hague, 47 Minn. 405; Brook v. Sneed, 50 Miss. 416; Alferd v. McCormick, 90 N. C. 151; City v. White, 152 Cal. 190; Albritton v. Williams, 132 Ala. 647; Smith v. Benton, 15 Mo. 371; Laswell v. Church, 46 Mo. 279. .“The affidavit and jurat are a part of the petition.” Burnes v. Burnes, 61 Mo. App. 618. “When a signature is essential to the validity of an instrument, it is' not necessary that the signature appear at the end of the instrument, if the name of the party whose signature is required is written by him in any part of the instrument for the' purpose of authenticating it, it is ’ a sufficient signature.” 36 Cyc. 449; Moss v. Booth, 34 Mo. 316; Schmidt v. Schmaelter, 45 Mo. 502; State v. Wilcox, 59 Mo. 176. “An instrument is-.signed where the name appears at the bottom, top, middle or side of a paper, if such name was intended as a signature.” 25 Am. & Eng. Ency. Law, 1065. “If by mistake or-inadvertence a signature is placed below the jurat this does not render it a nullity.” Launius v. Coe, 51 Mo. 147. (2) Sec. 2381, R. S. 1909, prohibits a petition for review in a divorce matter, any law or statute to the contrary notwithstanding. The petition of appellant herein is a petition for a review. The prayer of appellant’s petition shows that this is what he seeks to do. He asks that the judgment be set aside and that he be reinstated to his legal rights and given the privilege of answering and defending. Smith v. Smith, 164 Mo. App. 53; Salisbury v. Salisbury, 92 Mo. 683. (3) If, as appellant contends, the decree in the divorce suit was void, then that is the end of it and it does not need this action to void it. The petition of plaintiff treats the decree as being valid. If it is a valid decree then it cannot be reviewed in this sort of an action. If it is void, then it is open to collateral attack at any time. It would appear from reading the petition of plaintiff in this suit that this was an attempt to set aside a judgment in the divorce case on account of fraud. “In order to set aside a judgment for fraud even in a direct proceeding, it must appear that the fraud was practiced in the very act of obtaining the judgment.” Fears v. Riley, 148 Mo. 49; Railway Co. v. Mirreiles, 182 Mo. 126; Dorman v. Hall,- 124 Mo. App. 9; Smith v. Smith, 164 Mo. App. 53.
   GRAVES, J.

— This is an action brought for the purpose of annulling a certain decree of divorce entered in the circuit court of Jasper County in the case of Esther Robertson v. Orrin Robertson in February, 1911. The present action was instituted January 2, 1913. The petition herein charges lack of jurisdiction in the circuit court of Jasper County in the case of Esther Robertson v. Orrin Robertson. It also charges fraud in the procurement of that judgment. Upon trial the circuit-court dismissed plaintiff’s bill and entered judgtnent against him. From such judgment the plaintiff appealed to the Springfield Court of Appeals, which court by a divided opinion reversed and remanded such cause, with directions to the trial court to enter a judgment for plaintiff on his bill. One of the -judges dissented and certified the case here. It therefore reaches us in due form, and is here for consideration from all angles.

In the Court of Appeals the division of the court arose upon the sufficiency of the affidavit attached to the petition of plaintiff in case of Esther Roberts on v. Orrin Robertson. In that case the petition is very short, and charges as a ground for divorce:

“But the said defendant wholly disregarding his duties as the husband of the plaintiff, did on said September 16, 1908, desert and leave plaintiff and has absented himself without a reasonable cause for the space of one year, to-wit, since the 16th day of September, 1908, that ever since last named date, defendant wholly disregarding -his duties as the husband of plaintiff, has failed and neglected to support plaintiff, has contributed nóthing to plaintiff with which to provide for her the necessities of life.”

This petition alleges defendant to be a non-resident of Missouri, and had other usual formal allegations. This petition was signed “Esther Robertson, Plaintiff.” Following this signature was the following:

“State of Missouri, 7 County of Jasper. ) SS‘
“On this 16tli day of December, 1910, before me, the undersigned notary public within and for Jasper County, Missouri, personally appeared Esther Robertson to me known to be the person described in, and who executed the above and foregoing petition, who being by me duly sworn on her oath, did say that she is the plaintiff in the above entitled action and- that the facts in the foregoing petition are true according to her best knowledge and belief, and that the complaint is not made out of levity, or by collusion, fear or restraint between the plaintiff and defendant for the mere purpose of being separated from each other, but. in sincerity and truth for the causes mentioned in the petition.
U______
“In testimony whereof, I have hereunto set my hand and affixed my notarial seal at my office, in Joplin, Missouri, this 16th. day of December, 1910.
Beatrice L. White, Notary Public,
Jasper County, Missouri.
Commission expires Feb. 28, 1914.”

It will be noted that the said Esther Robertson did not subscribe to the affidavit, and this was the bone of contention in the Springfield Court of Appeals. The majority opinion held that the circuit court, under these documents, acquired no jurisdiction in Esther’s case, and that its judgment should be annulled. The minority opinion contra. Other matters will be stated, if necessity requires.

I. The majority opinion in this ease is bottomed on the case of Hinkle v. Lovelace, 204 Mo. 1. c. 227. Whilst this court was divided upon some questions in that case, we were a unit in holding:

“The verification required to be made and annexed to the petition in divorce proceedings is a matter of substance, so much as that the court acquires no jurisdiction of the cause without it. See authorities cited under paragraph three of this opinion.”

In other words we held that unless a petition for divorce was accompanied by the affidavit required by the statute, the circuit court would acquire no jurisdiction in the case. We see no reason for departing from that rule. . In that case the affidavit attached to and filed with the petition, was made by an agent of the plaintiff, and we held that in law it was no affidavit at all. In other words, that the plaintiff was the only person that could make the affidavit required by the statute. The difference between that case and this case is, that in the one the'agent undertook to and did make the affidavit, whilst in the other the plaintiff is averred by the notary to have sworn to the facts in the affidavit, but did not sign it. It will be observed that the Hinkle case settles the jurisdictional character of the affidavit, but does not settle the sufficiency of the instrument involved here. That matter we take nest.

II. This case presents a very interesting question, and as it comes to this court upon a certification of the Court of Appeals, all questions involved are here for consideration, as if the cause was one appealable to this court in the first instance. If the affidavit in the divorce case is insufficient to confer jurisdiction, it is because the same is not signed by the plaintiff'in that proceeding. The general rule supported by the weight of the authorities, is thus stated in 2 Corpus Juris, p. 357:

“It is generally held that, in the absence of any statute or rule of court requiring a signature, if it clearly appears who made the affidavit, and the fact of his swearing is certified by a proper officer, the affidavit is sufficient, although not subscribed by the affiant.”

The authorities cited do not include Missouri, however. So too we find in 1 R. L. C. 769, the general rule stated in this fashion:

“In tlie absence of a statute or rule of court to tbe contrary, it is not necessary to tbe validity of an affidavit that it have the signature of, the affiant subscribed thereto, although all the authorities and general custom recommend as the better practice that it be signed by the affiant.”

No Missouri authorities are cited by this author to support the rule. On the other hand, in both of these authorities Missouri is recognized as holding to a different view.

To start with it must be said that our statute as to the affidavit which must accompany a divorce petition (Sec. 2371, R. S. 1909) does not specifically provide for the signature of the plaintiff to the affidavit. The pertinent portion of this statute reads:

“The petition shall be accompanied by an affidavit annexed thereto, that the facts stated therein are true according to the best knowledge and belief of the plaintiff, and that the complaint is not made of levity, or by collusion, fear or restraint between the plaintiff and defendant, for the mere purpose of being separated from each other, but in sincerity and truth, for the causes mentioned in the petition.”

But it must be further said «that the statute does require statements to be sworn to, which are in addition to the statement in the petition. We have italicized the portion of the statute making this requirement. In other words the statute requires (1) an affidavit to the effect that the matters stated in the petition are true, and (2) an affidavit as to the additional matters in the italicized portion of the statute mentioned. All of these last requirements are as to matters within the personal knowledge of the plaintiff, and most of them are things that could be known by no one save and except the plaintiff. This fact alone should require us to proceed with caution in determining what is and what is not an affidavit in a divorce case. The public interest (the third party in every divorce proceeding) would seem to require a rather rigid construction to be given the law. We can see where it could well be said, that the law-makers contemplated, by the use of the word “affidavit” in this particular statute, an instrument duly signed by the plaintiff, to which a proper jurat was affixed by the officer before whom the affidavit was made. This because of the peculiar things required by the statute to be in this affidavit. It is clear that the statute does contemplate that it shall be in writing, because it must be annexed to the petition. It likewise contemplates the jurat of the officer. Does it then contemplate the signature of the plaintiff? We think so. At least that would seem to be the current views of the courts of this State. When we say that, we do not mean to say that our courts have ruled upon the precise question under the divorce statute, but we do mean that we have so ruled under other statutes. Thus in the case of Hargadine v. Van Horn, 72 Mo. 370, we had the exact question under the attachment statute. We have examined the old files in that case. The only trouble with the affidavit there was the absence of the signature of the affiant, as will be seen from page' 2 of the abstract of record on file here.. The opinion in the Hargadine case is decisive here. It is true that it was by a divided court, but the case stands to date. The holding was to the effect that such unsigned instrument was no affidavit, although there was the proper jurat by the officer.

Blair, C., with the unanimous approval of this Division, approved the ruling in the Hargadine case as late as the case of Norman v. Insurance Co., 237 Mo. l. c. 584. True he was not discussing an affidavit in this exact shape, but he was discussing the question of jurisdiction without an affidavit. In Hargadine’s case we had held that an affidavit without a signature was no affidavit, and thus the' citation of the case. The minority opinion from Springfield Court of Appeals cites us to the case of State v. Headrick, 149 Mo. l. c. 403. This case simply says:

“The word affidavit, ex vi termini, means an oath reduced to writing. [1 Ency. Pl. and Pr. 309; 1 Am. & Eng. Ency. Law (2 Ed.), 909, and cases cited.]”

Nothing in that ruling precludes the idea that a signature must be attached to the writing. In Norman v. Horn, 36 Mo. App. l. c. 424, an affidavit is thus defined :

“An affidavit is &m written statement or declaration sworn to before some officer authorized by law to administer oaths, and signed at the end by the affiant or deponent. [Hathaway v. Scott, 11 Paige Chan. 173.]”

This definition comports with the ruling in Hargadine’s case, supra.

We have cases which hold that because an affidavit in attachment may be defective in the matter of substantial statements therein, yet this fact, does not defeat jurisdiction. Of this line of cases Burnett v. McCluey, 92 Mo. 230, is a type. But these cases do not contravene the rule that an unsigned affidavit is no affidavit at all, nor the further rule that the absence of an affidavit defeats jurisdiction. It should also be considered that in attachment proceedings there is specific statutory authority for amending defective affidavits, and the cases holding that jurisdiction is not defeated by affidavits merely defective in statements, all refer to this statute. But, as said, none of these cases go to the matter involved here. In the Hargadine case we ruled that an unsigned affidavit was no affidavit, and this ruling remains the rule of this court to-day. We see no good reason to depart from it. Especially do we see no good reason to adopt a different rule in divorce cases. Too often the courts are imposed upon in such cases. To require the statutory affidavit to be signed by the plaintiff is but another safeguard.

The majority opinion of the' Springfield Court of Appeals is right. Let the judgment nisi be reversed and the cause remanded with directions to the circuit court to enter up a judgment for plaintiff herein annulling the decree of divorce in Esther Robertson v. Orrin Robertson, as prayed for in plaintiff’s bill.- It is so ordered.

All concur; Bond, P. J., in result.


author: BROWN, C. PER CURIAM:

text:
    THE STATE ex rel. JOHN T. BARKER, Attorney-General, v. JAMES P. SCOTT, Appellant.
    Division One,
    February 20, 1917.
    1. MONEY HAD AND RECEIVED: Payment: Judgment on Pleadings. In a suit by the State against a county clerk to recover back money paid, an allegation charging that he had wrongfully and falsely certified to the State Auditor that he had extended the taxes upon the assessor’s book, and by said false certificate had received a definite sum of money from the State for work he had not at the time performed, is covered by a general denial, and a judgment on the pleadings cannot stand, unless the other plea in the answer that the money was voluntarily paid, with full knowledge of the facts, before any of the work had been done, and that the work was afterwards done by him during his same term of office, constitutes no defense.
    2. -: -: By Public Officers: Mistake of Law. Where all the participants were officers each acting solely in his official capacity, the rule that money paid under a mistaken view of the law, with full knowledge of the facts, cannot be recovered, has no application. In such case the officer receiving the money must find his right thereto in the law; and no subsequent approval, acquiescence or settlement, non-judicial in character, can operate to justify an unlawful act.
    3. -: -: Before Work is Done: Work Done Before Suit: Purpose of Extension on Assessment Book. The statute (See. 11549, ft. S. 1909) which allows compensation to the county clerk for “services rendered” in “extending the taxes on the assessment book” does not designate the time within which the work is to be done, nor fix a penalty for failure to do it before making out and delivering the tax book to the collector, and the act is such that the time of its performance has no effect upon the validity of the tax, and is important only (1) as an aid to the clerk in correctly extending the taxes upon the tax book and (2) as a permanent public record of the amount of the tax in accordance with the final orders of the county and state boards; and in an action by the State to recover back money from the county clerk, paid by-the State Auditor before the work of extending the taxes on the assessment book was done, but which was done before the action was instituted, there can be no recovery on the theory either (1) of enforcing a penalty for not doing the work sooner or (2) that the payment having been made, the duty to do it ceased and its performance thereafter was a work of supererogation.
    Appeal from Clark Circuit Court. — Eon. N. M. Pettin- - gill, Judge.

      Reversed and remanded.

      Cooley & Murrell, J. A. Whiteside and B. L. Gridley for appellant.
    (1) The statutory provisions pleaded and relied on by plaintiff make no provision as to when the work for which these fees were paid shall be completed, nor does any other statute'; and’ even if there was a statutory time limit, and the work had not been completed within such time, neither the statute pleaded, not any other, fixes as a penalty for such failure the forfeiture of the fees, nor authorizes the State to recover the fees after they have been paid; especially when, as here, the work was done and completed before suit brought. The burden is on the State 'to show a clear right of recovery. (2) The extension of the taxes for which these fees were paid to the clerk is not necessary to the validity of the assessment nor a prerequisite to the collection thereof. State ex rel. v. Wilson, 216 Mo. 286; State ex rel. v. Lounsberry, 125 Mo. 163. (3) The statute pleaded, Sec. 11397, R. S. 1909, provides that the clerk shall do -this work. Sec. 11549 provides that he shall be paid certain fees for doing it. Neither section says when he shall do it. No statute provides that for any delay in doing it he shall forfeit the fees. If not done until after the “tax book” (the book that goes to the collector) has been made and delivered, it still remains the clerk’s duty to extend these taxes on the assessor’s book, which remains in his -office. When done, he would unquestionably be entitled to the fees. Therefore, even if the State would have had a right to recover on the theory that the fees had not been earned when they were paid, if suit had been brought before the work had been done, it could have no such right to recover in this case, because when suit was filed, the work was done and the fees earned. (4) Money or fees paid through mistake of law cannot be recovered. The answer pleads, and for the purposes of this case, the motion for judgment admits, that the State paid the money with full knowledge of the facts. Hence if there was a mistake, it was one of law. The law allows the clerk certain fees, aggregating a certain amount. Having received and charged himself with these fees it reduced the amount he could keep from other sources. It was a settlement. State ex rel. v. Ewing, 116 Mo. 129; Corbin v. County, 171 Mo. 385; Schell City v. Mfg. Co., 39 Mo. App. 264; State ex rel. v. Hawkins, 169 Mo. 615; State ex rel. v. Shipman, 125 Mo. 436; Scott County v. Leftwitch, 145 Mo. 34. The case of Lamar Twp. v. City of Lamar, 261 Mo. 171, does not fit the case at bar; besides it recognizes that where there has been a settlement, or what amounts to a settlement, with an officer, the municipality is barred from any recovery.. See Lamar case, 1. c. 190, and cases cited.

      John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State.
    (1) The statutes require a county clerk to extend the tax levy for a given year, upon the assessment books, and after the extension has been made thereon to make a copy of said book with taxes extended for the use of the county collector. They require this to be done within ninety days, after the assessments have been equalized by the boards of equalization, and the assessments adjusted by the county clerk. This extension must be made at least before October 1st each year, and if it is not done before that time the clerk is entitled to no fee therefor. Secs. 11397, 11425, 11411, 11414, 11402, 11404, 11549, 11461, R. S. 1909. (2) The fact that suit was not brought to recover back these illegal fees until after the extension of the taxes had been made in August, 1914, does not avail appellant. A public servant may not collect money for the performance of a public service, fail to perform it until such, a time as it has become useless, and then escape repayment by performing the useless service after demand for the repayment. (3) The doctrine that money paid under mistake of law cannot be recovered back has no application to public funds paid by one officer to another. To so hold would violate fundamental principles of law and open wide the door to fraud in the dealing of, officials with such funds. Lamar Twp. v. Lamar, 261 Mo. 183; Morrow v. Surber, 97 Mo. 155; Ada County v. Gess, 4 Idaho, 611; Allegheny County v. Grier, 179 Pa. St. 639; Heath v. Allbrook, 123 Iowa, • 559; Ellis v. State Auditors, 107 Mich. 528; State v. Young, 134 Iowa, 505; Board of Commissioners v. Heuston, 144 Ind. 588; Reppy v. Jefferson County, 47 Mo. 66; Sears v. Stone County, 105 Mo. 236.
   BROWN, C.

— The petition, filed September 19, 1914, is in three counts, the first of which, omitting caption, is as follows:

‘ ‘ Comes now the plaintiff in the above entitled cause and states that on the-day of January, 1911, defendant was the duly appointed and commissioned clerk of the county court of Clark County, Missouri, and as such entered upon the discharge of his duties on the-day of January, 1911.
“Plaintiff states that in the year 1910 the county assessor of said Clark County duly assessed the real and personal property of said county, under and by virtue of article 2, chapter 17, Revised Statutes of Missouri 1909, and duly entered said assessment in the assessment book in said county and duly returned said assessment book to the county court of said county; and that the same was received and accepted by said court, and afterwards at the time provided by law, the State Board of Equalization of the State of Missouri and the County Board of Equalization of said Clark County duly passed upon and equalized said assessment. That afterwards, and at the time provided by law, there was duly levied upon said assessment, equalized as aforesaid, the state, county and municipal taxes of said Clark County, under and by virtue of article 5 of chapter 117, Revised Statutes 1909.
“Plaintiff: further states that as such clerk and under and by virtue of section 11397, Revised Statutes 1909, it became and was the duty of the defendant to extend the taxes so levied as aforesaid upon said assessment book; that under and by virtue of section 11549, Revised Statutes 1909, said defendant was entitled to receive as full compensation for extending the taxes upon said assessment book, the sum of three cents for each name appearing thereon, the same to be paid.by the said Clark County and State of Missouri in proportion to the number of tax columns used by each in said assessment book.
“Plaintiff further states that on the-day of-191 — , the defendant herein knowingly, wrongfully and falsely certified to the State Auditor of the State of Missouri that he had extended the taxes so levied as aforesaid upon said assessment book, and that he was entitled to receive therefor the sum of eighty-one dollars and fifty cents from the State of Missouri, as compensation for the proportionate part of said work of ex-tehding said assessment on behalf of the State of Missouri; that in reliance upon said certificate, and believing the same to be true, the State Auditor of the State of Missouri caused to be issued a warrant upon the State Treasurer of the State of Missouri for the sum of eighty-one dollars and fifty cents in favor of the defendant and delivered the same to him in payment of his alleged services in extending the taxes as aforesaid upon said assessment book, and that said warrant was duly paid by the State Treasurer, and that defendant received the. money thereon.
“Plaintiff further alleges and. charges that defendant did not extend the taxes so levied as aforesaid upon the assessment' book aforesaid and so certified by defendant as aforesaid, and that by reason thereof defendant was not entitled to receive any compensation from the State of Missouri for any alleged service in extending said taxes.
“Plaintiff further states that although often demanded of defendant by plaintiff, said defendant has wholly failed and refused to return to said plaintiff the said sum of eighty-one dollars and fifty cents, paid him as aforesaid.
“Wherefore, plaintiff prays ¡judgment against defendant for the sum of eighty-one dollars and fifty cents, with interest from--day of-, 1911.”

The second -and third counts declare for similar fees collected upon the as. —.„ts for the two following years respectively. The answer is, omitting caption and signatures, as follows:

“Defendant for answer to plaintiff’s petition and each count thereof admits that he was during the times mentioned in each count of plaintiff’s petition the duly elected and acting Clerk of the County Court of Clark County, Missouri. He admits that in the years mentioned in the petition the county assessor of said county assessed the real and personal property of said county and entered said assessment in the assessment books and returned said assessment books to the county court of said county, which were received and accepted by said court.
“Admits that the State Board of Equalization and the County Board of Equalization passed upon and equalized said assessments. That there were thereafter levied upon said assessments the state, county and municipal taxes of said Clark County.
“Admits that as such county clerk it became defendant’s duty to extend the taxes so levied upon said, assessment books, and that defendant under the statutes of the State of Missouri, was entitled to receive as compensation for so extending said taxes the sum of three cents for each name appearing thereon, to be paid by said Clark County and by the State of Missouri in proportion to the number of tax columns used by each in said assessment books.
“Defendant further answering says that the sai*d moneys alleged in plaintiff’s petition and each count thereof as having been paid by the State of Missouri for extending said taxes was paid by the State, and was the amount the State of Missouri should pay as provided by statute; that defendant received said money as part of his compensation as county clerk aforesaid.
“'And defendant further says that during his said term of office, and before the filing of this suit, and to-wit, during the year 1914 and on and prior to the - day of August, 1914, he fully performed and completed the said work of extending said taxes for all of said years on said assessment books as was his duty to do as said clerk, as charged in plaintiff’s petition, arid that plaintiff is not entitled to recover said moneys or any part thereof.
“And defendant denies all other allegations in plaintiff’s petition and each count thereof contained.
“And defendant further answering says that -said moneys so paid by the State of Missouri were paid by it with full knowledge on the part of the State, through its agents, of all the facts and that plaintiff is not entitled to recover same and having fully answered defendant asks to be discharged with his costs.”

To this a motion for judgment was filed, the body of which is as follows:

“Comes now plaintiff in this cause and moves the court to render judgment in favor of the plaintiff upon the mentioned facts and upon all the facts disclosed by the pleadings herein, for the reason that it fully appears from the face of the petition and answer in. this cause that plaintiff is entitled to judgment upon each count of the petition for the amount in each count prayed.
“Wherefore plaintiff prays the judgment of this court.”

The motion was sustained, to which exception was duly taken and judgment entered for the several amounts demanded, from which this appeal is taken. The only question is whether the plaintiff was entitled to his judgment on the pleadings.

■ I. The allegation of the petition that the defendant, to procure the payment of these fees, certified that the work had been done, is fully covered by the general denial the answer. The case therefore stands upon the sufficiency of the plea that the money asked for in each of tlie three counts of the petition was voluntarily paid by the proper officers of the State, with full knowledge of the facts, before any of the work had been done, and that the work was afterward done by defendant during his same term of office, and before the institution of this suit. The question is whether, having been so paid, the money can now be recovered back by the State.

II. It is suggested by defendant that if the money was honestly paid, and received with a full knowledge on the part of the officers of the State of all the circumstances, it was paid under mistake of law, and cannot, therefore, be recovered back. We do not think this rule is applicable to this transaction. All the participants were officers, each acting solely in his official capacity. • When one assumes to represent the State in the disposition of the people’s money, he and those dealing with him must look to the law for his authority; and no subsequent act of approval, acquiescence or settlement non-judicial in character, can operate to extend that authority over an unlawful act. This question was lately considered by Division Number Two of this court in Lamar Township v. City of Lamar, 261 Mo. 171, in which the same conclusion was reached, and many authorities cited in its support. It remains for us to examine this case in the light of that doctrine as well as of other principles arising out of its peculiar facts.

III. That this action would lie to recover back the amount paid the defendant for extending the tax on the assessment book had the work not been done, we have no doubt; for section 11549, Revised Statutes 1909, under which it is claimed, allows the compensation for ‘ ‘ services rendered” in “extending the tax on the assessment book,” and these services are not rendered until the work is done. We will not, however, consider questions which might have arisen had the suit been instituted immediately upon the wrongful receipt of the money by the clerk, for they are not presented. When the suit was begun the money had heen paid, and the work done, so that the recovery sought is either the enforcement of a penalty against the clerk for not having done it sooner, or an assertion by the State that the duty to do it had ceased so that its accomplishment was a work of supererogation on his part. The first of these theories is untenable because a 'penalty can only be imposed by the Legislature, and we are cited to no statute, and have been able to find none, imposing it. The other theory is the one on which the Attorney-General evidently stands. In considering the question from that standpoint it occurs to us that there must have been not only a time when the duty of the clerk to extend these taxes upon the assessment book was fixed, but also a time when the duty ceased, and his failure became a delinquency ; -for it is evident that so long as the duty existed he might with propriety discharge it.

This court held, so long ago that any dissatisfaction with its ruling should have found expression in the statutes, that the omission of the clerk to extend the tax upon the assessor’s books, as in this case, did not invalidate the tax or preclude its collection. [State ex rel. v. Lounsberry, 125 Mo. 157, 1. c. 163.] As said in that ease, the assessment constitutes the basis and foundation of the subsequent tax proceeding, and it might well have been added, had it been pertinent, that the tax book which it is made the duty of the clerk to prepare and deliver to the collector is the process provided by law for its collection. For this reason, no doubt, a penalty of twenty per cent of the amount of his fees for making it out is imposed by section 11425 upon the county clerk for failure to deliver it to the collector within ninety days after the assessor’s book shall' be “corrected and adjusted.” The meaning of the three words we have quoted' is interesting in connection with this question. Going back to section 11392, and taking up the history of the book to which they refer, we find that the assessor is required to return it to the county court properly verified on or before January 20th, subject to a penalty of twenty per cent of the amount of his fees for making it, if lie fails to return it on or before that date. The county clerk is then allowed one month to prepare from it his abstract for the State Board of Equalization, which he must return on -or before February 20th or forfeit fifty per cent of the fees allowed him by law for preparing it. When the County Board of Equalization and Appeals and the State Board of Equalization have respectively' acted with reference to the values it contains, the labor of the clerk upon the book again begins. He must then so correct the book that the valuation of each item of property assessed shall appear upon it in two separate additional columns as corrected by each of those bodies. It is then and only then. that the assessment book is-ready for the computation and extension upon its pages of the amounts of each of the several taxes levied against the property of the county. It is then also that the book is ready to be copied in the tax book and the taxes extended thereon for the collector as provided by section 11425 to which we have already referred. He then has only ninety' days for the performance of this work until the penalty of twenty per cent accrues for delay, while no penalty is imposed upon him for failure to extend the taxes upon the assessment books, with the multitude of computations it involves. It is not surprising that, confronted by this condition, he should examine closely section 11425 to determine whether it directs him as to priority in computing and extending the taxes on these two books. That part of the section which interests him is as follows: “As soon as the assessor’s book shall be corrected and adjusted, the clerk of the county court, . . . shall within ninety .days thereafter, make a fair copy thereof, with the taxes extended therein, authenticated by the seal of the court, for the use of the collector. ’ ’ There is nothing in either of the words “corrected” or “adjusted” that implies even remotely the extension of a tax on the book. The assessment has been corrected by each of the boards of equalization, and is to be adjusted by bringing the adjusted valuations into proper relations with each other, so that the combined result, as to each item of taxable property entered upon its pages, shall appear, expressed in its appropriate columns. It is then that the clerk is required to make a fair copy thereof with the taxes extended therein. There is nothing in this expression which indicates that the word “therein” refers to the original book rather than to the copy.

The assessor’s book constitutes a permanent record to be kept in the office of the county clerk from the time of its return by the county assessor with his own valuation written in a single column. As such record, it grows under the hand of the clerk in the performance of his duties. First, the work of the county board of equalization is entered upon its pages; it is then adjusted to the work of the State Board of Equalization; and then the taxes upon each item of property is entered upon it. The Legislature, had it considered it important, could have stated in unmistakable terms that it should be prepared and the taxes extended thereon before they should be extended upon the tax book for the use of the collector. While it imposes other penalties for delay, it imposes no penalty of any kind with respect to delay in this particular work, but leaves it to his own sense of duty and desire to earn and receive the fees. Had it specified the time when the work should be completed, that feature would have been merely directory, unless the nature of the act ox the phraseology of the statute had been such that the designation of time must be considered as a limitation of power. [Lewis-Sutherland Statutory Construction (2 Ed.), sec. 612, p. 1117.] In this case the nature of the act was such that the time of its performance or its performance at all had no effect upon the validity of the ultimate thing to be accomplished, and was only important as an aid to the clerk in correctly extending the taxes upon the tax book, and as a permanent record of the process by which this was done.

As we have already shown the Legislature has been liberal in the imposition of penalties to secure the prompt performance of those acts which constitute, a part of the assessment, levy and process for the collection of taxes where time was considered important, and has added (Sec. 11544) to the list of these a fine of not less than $10 nor more than $1000 against any officer who shall knowingly violate any of the provisions of the chapter we are considering, and also a fine of not less than $10 nor more than $500 for refusal or neglect to perform any of the duties required of him by said chapter upon being required so to do by any person interested in the matter. Should it think it important to specify either the time or order in which the taxes shall be extended upon the assessor’s hook, or to impose specific penalties for lack of diligence in that respect, we are sure the performance of such duty will not he neglected.

Under the present state of the law the judgment upon the pleadings in their present condition must he reversed and the cause remanded.

Railey, C., concurs.

PER CURIAM:

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

All the judges concur.