author: GRAVES, J.

text:
    THE STATE ex rel. G. I. REEDER et al. and INTERRIVER DRAINAGE DISTRICT v. J. P. FOARD, Judge of Circuit Court.
    In Banc,
    July 3, 1916.
    1. PROHIBITION: Motion for Judgment on Pleadings: Facts Taken as True. In prohibition, where respondent has filed a return to the preliminary rule to show cause why the writ should not go, and relator has filed a motion for judgment on the pleadings, the facts are to be gathered from the return in so far as the facts therein stated contravene the statements of relator’s petition. In such case the motion will be taken as admitting all facts well pleaded in the return.
    2. CHANGE OF VENUE: Drainage District: Exceptors for Self and Others. It is immaterial whether the affidavit for a change of venue alleging that the judge is disqualified because an interested party, filed by an exceptor to the report of the commissioners appointed to assess damages and benefits for a drainage district, is made for.himself alone or for himself and others. If the affidavit is good as to the one exceptor and is timely filed, it precludes further action by the judge. This is true because the drainage law contemplates that all exceptions to the report of the commissioners as to damages and benefits should be considered by the same court, and that .the one court will hear the exceptions and modify the report, and after modification confirm it by one final order of confirmation.
    3, -: -: Untimely Filed: After Report of Commissioners. The law contemplates that the organization of a drainage district is one continuous proceeding until - ich time as the report of the commissioners is confirmed. Therefore, an application for a change of venue, charging that the judge is an owner of land within the district and being an interested party is prejudiced, filed after exceptions to the report of the commissioners has been filed, is too late, and cannot be allowed. To be in time it must be made before the beginning of the trial.
    4. ———: -: Prejudice of Judge: Interested Party: No Exceptions. An affidavit for a change of venue, filed by an ex-ceptor to the commissioners’ report, charging that the regular judge, since the organization of the drainage district embracing 127,000 acres, has become the owner of sixty acres therein, but containing no averment that there is any exception that the assessment of benefits against the judge’s land is either too high or too low, does not show that anything is penning before him as to his own land, and does -‘ot charge such interest as disqualifies him to hear the exceptions and modify and confirm the report.
    Prohibition.
    Writ denied.

      Herbert H. Freer, Oliver & Oliver and L. R. Thomason for relators.
    (1) Any interest, “though it be ever so small and trifling,” disqualifies the judge. Any order or judgment on the hearing of the exceptions to the commissioners’ report that might be entered by the respondent would directly affect his pecuniary interest. Such being true, it was the duty of the respondent to have voluntarily called in some other judge who was not interested. Sec. 1928, R. S. 1909; Priddy v. MacKenzie, 205 Mo. 193; State ex rel. v. Smith,' 176 Mo. 97; Dimes v. Canal Co., 16 Eng. L. & Eq. 63, 3 H. L. Co. 759; Earl of Derby Case (1686), 12 Coke, 114; Coke on Littleton, sec. 212; Hesketh v. Braddock, 3 Burr, 1847; Findley v. Smith, 42 W. Ya. 299; State v. Call, 41 Fla. 442; Ex parte Cromwell, 144 Ala. 497; Meyer v. San Diego, 121 Cal. 102; Heilbron v. Campbell, 23 Pac. (Cal.) 122; Nalle v. Austin, 85 Tex. -520; State v. Cisco, 33 S. W. 244; Wagon Works v. Melton, 125 S. W. (Ky.) 291; Woodmen of the World v. Hale, 120 S. W. (Tex.) 539; Morrisey v. Gray, 117 Pac. 442; Railroad v. Call, 145 S. W. (Tex.) 1098; 23 Cyc. 575; 12 Am. & Eng. Ency. Law, p. 40; Pierce v. Atwood, 13 Mass. 339; Stockwell v. Town Board, 22 Mich. 345; Mining Co. v. Kieser, 58 Cal. 315; Priddy v. MacKenzie, 205 Mo. 195. All exceptions filed by said landowners to the report of the commissioners in assessing benefits are tried by the court sitting as a jury. The decreasing of the assessed benefits or the refusal to lower the assessed benefits upon other landowners will increase or decrease the amount of taxes levied and assessed upon the respondent’s lands in exact proportion as the changes are made, and, therefore, respondent is pecuniarily and directly interested. Any, even the slightest, pecuniary interest in the result renders the judge incompetent' to sit. Steamboat Co. v. Livingston, 12 Cowan, 724; Hawes v. Humphrey, 20 Am. Dec. 381; Peck v. Freeholders, 20 N. J. L. 457. (2) The filing of the application for the change of venue duly verified and in proper form, made it mandatory on the respondent to grant the application, and call in another judge to hear the further proceedings. Douglas v. White, 134 Mo. 233; Gee v. St. Louis Ry. Co., 140 Mo. 318; State ex rel. v. Clenton, 128 Mo. App. 304; Railway v. Fowler, 113 Mo. 469; Dowling v. Allen & Co., 88 Mo. 300. (3) The granting of the application carries with it the entire case. The entire number of exceptions must be heard by one judge —to permit a number of judges to hear the various exceptions and modify the commissioners’ report as to them might seem proper would result in having the report measured by as many different rules as there were judges, and the ultimate result would be a modified report wholly out of proportion and unfair to the landowners. The whole intent of the drainage statute is to keep the hearing of the exceptions in one forum and before a judge who is not disqualified. Art. 1, chap. 41, R. S. 1909; Drainage District v. Tomlinson, 245 Mo. 11; State ex rel. v. Sheppard, 245 Mo. 64; Drainage Dist. v. Richardson, 237 Mo. 64; State ex rel. v. Riley, 203 Mo. 191; State ex rel. •v. Haley, 99 Mo. 152; Fears v. Riley, 148 Mo. 61; Laws 1913, p. 241.

      D. W. Hill, L. M. Henson, Abington & Phillips, Whaley & Ing, Leslie C. Green, Sheppard & Sheppard, Mozley & Woody, John A. Gloriod and H. R. Polah for respondent.
    (1) The organization of a drainage district, under the drainage laws of this State, is one proceeding, and one case, regardless of the number of exceptions which may, during its progress, incidently be filed to the report of the commissioners. Drainage District v. Tomlinson, 245 Mo. 11; State ex. rel. v. Sheppard, 245 Mo. 64; Drainage Dist. v. Richardson, 237 Mo. 64; State ex rel. v. Riley, 203 Mo. 191. (2) The exceptions filed to the report of the commissioners are a mere continuation of the case, and are simply auxiliary or ancillary thereto, and exceptors to said report cannot take a change of venue. Sutton v. Cole, 155 Mo. 206. (3) In a drainage proceeding no change of venue can be had after the decree organizing the district is rendered. Drainage Dist. v. Richardson, 237 Mo. 49. (4) The remote contingent interest of respondent will not disqualify him to hear the exceptions in this case. 23 Cyc. 579. (5) Even if this court should hold that relators’ affidavit for a change of venue was timely filed, the trial court could only award a change of venue to the exceptors whom Reeder had authority to represent, and after such exceptions had been heard, Hon. J. P. Foard, regular judge, would have full jurisdiction. Laws 1913, p. 252, sec. 34.
   GRAVES, J.

— Original action in prohibition. The respondent filed return to our preliminary rule to show cause why our writ of prohibition should not go, and relators have filed a motion for judgment on the pleadings. In such a case the facts must be gathered from the return in so far as the facts therein stated contravene the statements of relators’ petition. In other words, the motion for judgment filed by relator is taken as admitting all well pleaded facts in the return. Gathering the facts of the case, with this rule in view, they are about as follows:

Proceedings were regularly instituted in the Butler Circuit Court for the incorporation of relator, “Inter-River Drainage District. ’ ’ Of this ■ court the respondent, Hon. J. P. Foard, was then and is now, the judge. The proceeding went along regularly until the relator, “Inter-River Drainage District,” was duly organized by final decree of said court. Up to this point in the proceeding the Hon. J. P. Foard owned no lands in the drainage district. After the decree of organization and before the report of the commissioners, the respondent acquired by purchase a small tract of land (sixty acres as we recall) in the district. The commis- • sioners to assess the damages and benefits were appointed by respondent, and their report has been filed. Afterward a great number of exceptions to this report were filed, and among them the exceptions of relators G. I. and G. L. Reeder. These exceptions were due for trial at the April term, 1915, of .said court) but owing to sickness in the family of the judge of the court, passed over until the July term following. At the July term relator G. I. Reeder filed his amended affidavit for a change of venue in which he charged:

“That at the time of the organization of said district the Honorable J. P. Foard, Judge of the Circuit Court of Butler County, Missouri, did not own any of the lands within said district, but that since the date of the decree and judgment incorporating the said Inter-River Drainage District, the said J. P. Foard, judge of this court, has acquired some of the land within said district and is now the owner thereof.
“Your affiant further represents and states to the court that the report of the commissioners assessing benefits and damages to the land and property within said district has been filed in this court and that there is now pending and undetermined a large number of exceptions and objections to the report of said commissioners, and that among the said exceptions and objections there is undetermined and pending an exception and objection filed by affiant to said commissioners ’ report.
“ Your affiant further represents and states to the court that he has good cause to believe and does believe and charges that he cannot have a fair and impartial trial of his exceptions and objections to said commissioners’ report assessing benefits and damages to his said lands and property within said district before the said Honorable J. P. Foard, Judge of the Circuit Court of Butler County, Missouri, and that none of the other defendants and exceptors to\ said report can have a fair and impartial trial before the said judge for the following reasons:
“1. That the said J. P. Foard is interested in the formation of said Inter-River Drainage District and is interested in the result of any judgment or order that might be rendered on the hearing of the exceptions and objections so filed by this affiant and all other persons, filing objections and exceptions to said report.
“2. That the said judge is biased and prejudiced in favor of the opposite party, the drainage district, the plaintiff, and against this defendant and other defendants.
“3. That the opposite party, the plaintiff drainage district, through its officers and employees, has an undue influence over the mind of the said judge.”

The return of respondent touches the matter which we have italicized above, i. e. whether or not relator Reeder was authorized to speak for the other exceptors. The return reads:

‘ ‘ That at the time G-. I. Reeder filed the application for change of venue it was denied orally and in writing in-said circuit court that G. I. Reeder had any authority to represent any exceptor other than himself and wife in making affidavit for change of venue, and that counter affidavits are on file in said circuit court to the effect that the following part of G. I. Reeder’s affidavit is false and untrue, . . . and that none of the other defendants or exceptors to said report can have a fair and impartial trial before the said judge.”

The question of fact whether or not G. I. Reeder had authority to represent other exceptors in making such affidavit is still pending and undetermined in said circuit court, and all exceptions were ordered docketed, at the foot of the October, 1915, docket of said court, so that evidence might be offered on that question, which would enable the court to determine the question of fact whether said exceptor represented the other ex-ceptors in this case.

“Respondent further states that the announcement referred to in relators’ petition as having been made on the 9th day of August, 1915, stating the intended ruling of the court upon this application for change of venue, which forms the basis for relators’ petition, was contained in a letter on said date to counsel for relators in this case, a carbon copy of which is hereto attached and marked, ‘Respondent’s Exhibit A.’
“Respondent further states again, as stated in the letter above mentioned, that it is impossible to say what the ruling of the court will be on this application except in the alternative, depending upon the finding of facts as hereinabove mentioned,' that is, if it should be found, as a matter of fact, that the ex-ceptor filed the application representing all other ex-ceptors in the case, it would be the duty of this court to call in another judge, as provided by law, in the hearing of all exceptions in this case, bnt, if the facts should be established that exceptor in filing the application represented only himself and wife it would be the duty of the court to make an order calling in a judge from some other judicial circuit of this State to sit and hear the exceptions of GL I. Reeder and wife only, as provided by section 34, page 252, Laws 1913 of Missouri.
“Respondent further states that he is very seriously in doubt whether or not a change of venue at this stage of the proceeding can be granted by the court, under the statutes and decisions of this State.
“Respondent further states that should it be determined that Gr. I. Reeder, in filing his application for change of venue, represented only himself and wife, then and in that event, relator’s petition fails to state facts sufficient to justify the issuing of the writ of prohibition herein.
“Respondent further states that the only purpose of said circuit court of Butler County in his rulings in this case is to faithfully and honestly follow the law in such cases made and provided, and to do justice and equity to all parties interested in this litigation, and that it is further desired by this court to faithfully abide by and follow all orders and judgment made by Your Honorable Body in the premises.”

We have made this statement quite full, to the end that all ■ the disputed matters might clearly appear. The foregoing fully states the case.

I. While it is urged by the respondent that he has under consideration affidavits on file tending to show that Reeder, in making his application, had no authority to speak for any exceptor but himself and wife, we are not impressed with the force of this suggestion. The whole context of the drainage law indicates ■ that all objections or exceptions to the report of the commissioners as to damages and benefits should be considered by the same court. The purpose is to have the benefits assessed meet the obligations of the district, which obligations include both the damages to be paid for property taken or damaged and the cost of the plan of reclamation. If the plan of reclamation exceeds in cost the benefits found, the court is not authorized to confirm the report of the commissioners, and for the very good reason that the district would not have sufficient funds with which to do the proposed work. The statute contemplates that the court may either confirm the report of the commissioners, or it may upon exceptions filed thereto, hear such exceptions, then modify the report, and after modification, confirm it. This would indicate very strongly that all exceptions should be heard by the same judge or court, to the end that all modifications might be entered, and one final order of confirmation made. In other words, after determining all exceptions to the report, the court either confirms the report as filed, or modifies it as may be required by the judgment upon the several exceptions filed, and then confirms it. The matter at issue is the confirmation of the report. The contest is one between the district upon one side and the exceptors on the other or vice versa. We have held that a proceeding like this is a civil suit,within the meaning of our change of venue law. • [State ex rel. v. Riley, 203 Mo. 175.]

We think it a reasonable construction to hold that the exceptors as a class are the opposing parties to the drainage district in the matter of the confirmation of this report of the commissioners. And we further are of opinion that Revised Statutes 1909, section 1931, applies. This section reads:

“One or more of several parties plaintiff or defendant may ask for the change of venue, and if the change is awarded the entire cause shall be removed, and there shall be no further change of venue awarded on the same side of the suit.”

Under this statute the exceptors should be considered as the opposing parties, just as we would consider two or more defendants the opposing parties. It is the exceptors, as a class, who are opposed to the confirmation of the report in this case, and the drainage district which favors its confirmation. Under this statute as to change of venue in other civil cases, we hold that if one exceptor is granted a change of venue, the whole controversy as to the confirmation of the report should go to the court to which the change is granted. This of course would carry all other exceptors to such court. So, in the case at bar, it is immaterial whether the affidavit is in behalf of Reeder alone, or in behalf of him and other exceptors. If the affidavit is good as to Reeder, and was timely filed, it precludes further action by the respondent, and our writ should go.

II. The affidavit of prejudice upon the part of the judge was such as to divest jurisdiction, if it were filed in time. This is the serious question in this case. We are of opinion that in so far as the charge of prejudice is concerned, the matter now under discussion, the affidavit for change of venue was not timely filed. The law contemplates that the organization of a drainage district is one continuous proceeding until such time as the report of the commissioners is confirmed. It is not until'then that .the corporate entity is fully authorized to.proceed with the work of reclamation. It being one cause of action, or one continuous proceeding, the affidavit of prejudice should have been filed before the judge began actual work on the case. This dates back to the hearing on the question of incorporation. I was first impressed with the idea that the incorporation part of the proceeding should be considered as one proceeding or case, and all subsequent matters thereafter should he> considered as another and different proceeding. But we did not so rule in ' the case of Tarkio Drainage District v. Richardson, 237 Mo. 49. It will he noted that the writer here declined to express an opinion in that case. Later, however, in Drainage District v. Tomlinson, 245 Mo. l. c. 11 and 12, I cited with approval the Tarldo Drainage District case, supra. The effect of these rulings have been to classify such a proceeding as one continuous proceeding from the filing of the petition for incorporation to the confirmation of the report of the commissioners. And after all this looks reasonable. The purpose of the proceeding is to provide for the execution of a plan of reclamation, and the organization of the district and the confirmation of the report of the commissioners are hut distinct steps in the one general proceeding. On this theory of the law this application for a change of venue on the ground of the prejudice of the judge comes too late. It would he a hazardous doctrine to say that after a judge had partially heard a case, a party thereto could stop that hearing by procuring a change of venue upon the ground of prejudice of the judge, then actually trying the case.

Under our previous holdings as to the character of this proceeding this application, in so far as the prejudice of the judge is concerned, comes too late. It therefore did not divest jurisdiction of the respondent. The whole matter turns upon the matter of the proceeding, from the filing of the petition to the confirmation of the commissioners’ report, being one ease or one continuous proceeding. This view seems to have the approval of this court in. the two cases cited, supra, and it would serve no good purpose t.o change faces now. We therefore hold that on the ground of prejudice upon the part of the trial judge the application was not timely filed, and did not, for that reason, oust jurisdiction.

ILL As to the ground of the application, viz., that since the organization of the district the respondent has purchased lands in the district, a rather peculiar situation is developed. The application for our writ charges:

‘ ‘ That on the 15th day of December, 1913, since the decree incorporating and organizing said drainage district was rendered by the Honorable J. P. Foard, Judge of the Circuit Court of Butler County, Missouri, he acquired by purchase sixty acres of land within said district ; that said lands will be benefited by the construction and maintenance of works and improvements provided for in said Plan for Reclamation and have been assessed benefits by said commissioners; that neither the officers and employees of said drainage district nor the commissioners, who assessed benefits and damages to the lands within the district, had any knowledge whatsoever that the Honorable J. P. Foard was the owner of any land within the district until after said commissioners’ report had been filed.”

The return, as will be observed, makes no denial of this matter. The petition further avers that there are 127,000 acres of land in the district, and does not aver that there is any exception upon the part of respondent to the benefits charged to respondent’s sixty acres of land. In other words, he does not urge that the benefits assessed are too high, nor do the petitioners,, one of them being the district itself, aver them to be too low. The matter before the respondent as judge of the court is simply the confirmation of the commissioners’ report. After hearing the exceptions, he may modify it and then confirm it, but nothing is now pending before him, as to his own land. TMs for the reason that no one challenges the judgment of the commissioners as to this tract of land. It thus appears that the alleged interest of Judge Foard is so very remote and so infinitesimally small, that it would be hard to say that he was so interested as to disqualify him under our statute, Revised Statutes 1909, section 1928.

But beyond this it must be said that the right to change of venue is purely statutory. We have held that this proceedmg is one continuous proceeding, and it stands admitted that respondent was not disqualified when he began the case.' Under our statute, section 1929, Revised Statutes 1909, an application for a change of venue must be made before beginning of the trial. In this it seems that the application coinés too late. But be this as it may, it is clear that the pleadings here do not show such an interest in the matter now pending before Judge Foard, as to disqualify him. The matter now pending is the exceptions to this report, and his interest is in nó wise involved by exceptions.

Our preliminary rule should be quashed and. our writ of prohibition denied. It is so ordered.

Walker and Blair, JJ., concur; Faris and Revelle, JJ., concur as to paragraphs one and two and in result. Woodson, C. J., absent; Bond, J., not sitting.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    THE STATE ex rel. RICHARD McCULLOCH v. WILSON A. TAYLOR, Judge of Circuit Court.
    In Banc,
    July 3, 1916.
    1, SPECIAL COMMISSIONER: Powers. A special commissioner appointed by the circuit court to take depositions in a cause is clothed with authority by the statute to issue subpoenas and compel the attendance of witnesses.

      2. —■■--: -: Application to Court. There is no necessity for ar application to the circuit court which has appointed a special commissioner to take depositions, for the inssuance of an order requiring the attendance of a witness before such commissioner, since the right of litigants to take depositions is purely statutory, and such order neither adds to nor detracts from the power of the commissioner in that respect.
    3. -: Power to Compel Production of Papers. Neither a special commissioner appointed by the circuit court to take depositions, nor the circuit court itself by a subpoena duces tecum, has power to compel a witness or the adversary party to produce books and papers before the commissioner, since his power is purely statutory, and the statute does not confer the power.

      4. -: -: Inherent Power of Court. The power of a circuit court to appoint a special commissioner to take depositions and certify them to the court, being ancillary in its nature and not necessary for the court’s existence and existing only by statute, the court has no inherent power by order or the process of subpoena duces tecur-, tc compel a witness to produce letters and other papers before said commissioner.
    5. -: -: Prohibition. But where the subpoena duces tecum sought the double purpose of compelling the attendance of the witness before the special commissioner and the production by him of certain letters, a writ of prohibition to prohibit the circuit court from enforcing such process will not issue, because the last requirement, while a lere nullity, did not affect ho validity of the first part, requiring him to appear and testify.
    6. -: Subpoena: Issued by Clerk. A witness cannot refuse to obey a subpoena commanding him to appear bef're a spe2ial commissioner and testify, on the ground that the subpoena is under the hand of the circuit clerk, instead of simply being signed by. the commissioner.
    Prohibition.
    Writ denied.

      F. K. Ryan, G. T. Priest and T. E. Francis for relator.
    (1) The writ of prohibition here should he made absolute, because the circuit court is without jurisdiction to issue a subpoena duces tecum for the production of books or papers before a special commissioner under tbe deposition statute; it being certain that taking testimony this way is entirely a statutory proceeding wherein the circuit court is not given power with respect to such taking of depositions further than to appoint such commissioner in the instance provided for by the statute and to pass upon any testimony that may be reported to the circuit court by the commissioner so appointed. Ex parte Mallinkrodt, 20 Mo. 493; Ex parte O’Brien, 127 Mo. 488; Ex parte Alexander, 163 Mo. App. 622; Matter of Searles, 155 N. Y. 333; In Re Strauss, 62 N. Y. Supp. 392; In Re Dittman, 72 N. Y. Supp. 885. (2) The action of the circuit court in this case cannot be sustained on the theory that its inherent power as a court of general jurisdiction is authority sufficient to issue the order in question. For inherent power does not go beyond that acquired by a court through pleadings filed, process issued, or appearance entered, and judgments or orders entered within the lines of the issues framed by the pleadings, and as to any statutory proceeding by depositions or otherwise that may arise under the issues thus presented, the power of the circuit court does not go beyond that expressly given to it by the statute and can be exercised in no other way than that prescribed in the statute. State ex rel. v. Muench, 217 Mo. 137; State ex rel. v. Rassieur, 186 Mo. App. 219; In re U. S. Pipe Line Co., 44 N. Y. Supp. 715; 5 Jones on Evidence, sec. 801; 3 Wigmore on Evidence, p. 2450; State ex rel. v. Broaddus, 245 Mo. 142; Art. 12, ch. 21, R. S. 1909.

      Henry M. Walsh for respondent.
    (1) Any party to a suit pending in any court in this State may obtain the deposition of any witness, to be used in such suit conditionally. Sec. 6384, R. S. 1909. (2) The witness, the relator herein, could make no claim of privilege relating to letters which are the very foundation of a wrong alleged to have been done to the plaintiff in the suit wherein the letters are asked to be produced, for the court will not permit the relator to protect a wrong. Stuckes v. Candy Co., 158 Mo. App. 342; 3 Wigmore on Evidence, 2212; Bank v. Hughes, 6 Fed. 741; Steel Rail Co. v. Steel Co., 48 Fed. 191; Victor G. Bloede Co. v. Joseph Bancroft & Sons Co., 98 Fed. 175, 45 C. C. A. 354; Burnham v. Morrissey, 14 Gray, 226, 74 Am. Dec. 676; United States v. Terminal Assn., 148 Fed. 486; Re Dunn, 9 Mo. App. 255; Elder v. Bogardus, 1 Edm. Sel. Cas. 110; Railroad v. State, 31 L. R. A. (N. S.) 539. (3) By applying for a special commissioner, and the granting of the application, the jurisdiction of the respondent became fixed to issue the subpoena duces tecum. Ex parte Brockman, 233 Mo. 135. (4) The contention of the relator that the respondent has no right to issue the order for the subpoena duces tecum, may be slightly confused with the question -of the commissioner’s right to issue the writ. The record shows that up to the time of the filing the application for this writ, every step was taken by the attorney for the defendants Goodwin, who are the real parties in interest, and this if true is improper. 40 Cyc. 2169 — g.
   WALKER, J.

— This is a proceeding by prohibition directed against one of the judges of the circuit court of the city of St. Louis to prevent him from compelling the attendance of relator as a witness before a special commissioner theretofore appointed by said court to take depositions under section 6390,,Revised Statutes 1909; and to require said witness to produce at the time of his attendance, for use in evidence, two certain letters alleged to have been received by him about March 25, 1914, from Frank E. Goodwin and wife, containing facts relevant and material to the issue in a certain libel suit pending in the court in which said judge presides, wherein John R. Hillhouse is the plaintiff and Frank E. Goodwin and wife are defendants. In declining to comply with the order made herein the relator seeks refuge in this writ.

The original application for a subpoena for the relator as a witness and requiring him to produce the letters referred to is as follows:

“Comes now the plaintiff and represents to this honorable court that there is pending in this court, the aforesaid suit; that Thomas E. Mulvihill has been appointed commissioner to take depositions in this cause on the tenth day of February, 1916: that Richard McCulloch has in his custody or under his control two letters, one of which purports to he signed by Frank E. Goodwin and the other by Mrs. Frank E. Guodwin; that said letters are addressed to Robert McCulloch and are dated about the twenty-fifth day of March, 1914. Plaintiff states that the letters aforesaid aré necessary evidence in the matters to he heard before the commissioner aforesaid, and he therefore prays that a subpoena duces tecum be issued directed to the said Richard McCulloch, requiring him to produce the said letters before the said commissioner on the tenth day of February, 1916, at 11 o’elock a. m., in the offices of Thomas E. Mulvihill, the commissioner aforesaid, Room 814, Rialto Bldg., the northeast corner 4th and Olive Sts.”

This application was verified before the clerk of the court and on February 8, 1916, the judge of said court entered of record an order for the issuance of the subpoena applied for, which is as follows:

‘ f Upon consideration of plaintiff’s verified application for a subpoena duces tecum, this day filed, and submitted to the court, it is ordered that a subpoena issue as prayed for, directed to Richard McCulloch, commanding him to appear as a witness and produce for use in evidence at the taking of depositions in this cause, before Thomas E. Mulvihill, special commissioner, on the 10th day of February, 1916, at eleven o’clock a. m., two letters, one of which purports to be signed by Frank E. Goodwin and the other by Mrs. Frank E. Goodwin, dated about March 25,1914.”.

February 10, 1916, plaintiff Hillhouse was granted leave to file an amended petition, and on the application of the defendants, Goodwin and wife, the issuance of the subpoena to relator was stayed. The succeeding day the amended petition was filed, and on February 24, 1916, on the application of plaintiff, the court made and entered of record the following order:

“Now at this day comes again the plaintiff, by his attorney, and upon his motion it is ordered that the order entered herein February 8, 1916, directing the issuance of a subpoena duces tecum for Richard McCulloch, commanding him to produce certain letters before the special commissioner in this cause, taking depositions, be, and the same is hereby set aside and vacated; thereupon plaintiff again submits to the court his verified application for a subpoena duces tecum, filed herein February 8, 1916, upon consideration of which it is ordered that the subpoena issue as prayed for directed to Richard McCulloch, commanding him to appear as a witness and produce, for use in evidence, before Thomas E. Mulvihill, special commissioner, taking depositions, on the 25th day of February, 1916, at eleven o’clock a. m., the two letters dated about March 25, 1914, addressed to Robert McCulloch and purporting to be signed by Frank E. and Mrs. Frank E. Goodwin.”

This order was stayed from day to day until the application for and issuance of the preliminary writ in the instant case. There is nothing in the abstract of the record to show that the relator was ever served with process as a witness and to produce the letters as required in the orders made in the circuit court, but the statement of the relator in his petition for this writ is to the effect that said subpoena was issued and served upon the witness. That fact not being challenged by the respondent, it will he taken as true. Nor does the record contain a copy of the subpoena issued and served ■upon the relator, and it will therefore he presumed that it conforms to the requirements of the court’s order authorizing its issuance.

It is urg'ed in support of this application that the taking of depositions is of purely statutory creation, in derogation of the common law, and that an officer clothed with power to take testimony in this manner cannot exceed the express authority under which he acts; that there are no intendments in favor of jurisdiction in such a proceeding; that an order to produce 'hooks and papers of §, third party can only he made for their introduction at the trial; that there is no authority for the issuance of an order for discovery or the inspection of the papers designated; that an application for same should describe with particularity the contents of the papers sought to be produced, that the court may be enabled to determine its materiality to the issue; and that the attempted enforcement of such an order constitutes an unreasonable search and seizure of papers, in violation of the State and Federal constitutions.

The special commissioner appointed to take depositions in this case was clothed with ample authority to issue subpoenas and compel the attendance of witnesses, the language of the statute conferring this power being that “for the purpose of taking such depositions and of certifying and returning the same . . . ” he ‘ ‘ shall possess the same power and authority and be subject to the same duties and obligations as now are or hereafter shall be conferred and imposed by law upon officers authorized to take depositions.” [Sec. 6390, supra.]

The pertinent portion of the general statute above referred to as conferring.the power stated upon the commissioner, is as follows: Every person, judge or other officer required to take depositions shall have power to issue subpoenas for witnesses to appear and testify and to compel their attendance in the same manner and under like penalties as in a court of record. Persons summoned as witnesses who refuse to give evidence lawfully required may be committed to prison by the officer or person authorized to take their depositions, etc. [Sec. 6404, R. S. 1909.]

Under the power thus conferred there was no necessity for the application made in this case to the circuit court for the issuance of the order requiring the attendance of the witness McCulloch before the special commissioner. The order made by the court based on said application, if possessed of the same, at least had no greater efficacy or force than if it had been issued by the commissioner himself. This is true because the right of litigants to take depositions is purely statutory, and the power of the court, as well as the commissioner or other officer authorized to take depositions, is limited to the express terms of the statute.

While ample power has been conferred on the courts to require, on the application of a litigant, the production by the adversary party of books and papers (Art. 12, chap. 21, R. S. 1909) and by the process of a subpoena duces tecum to require of other witnesses a like production (Shull v. Boyd, 251 Mo. l. c. 473), there is no statute authorizing this procedure in the taking of depositions. In an early ease decided by this court (Ex parte Mallinkrodt, 20 Mo. 493) it was held that a notary public had no power to commit a witness for refusing to produce books and papers under a subpoena duces tecum. The reason stated being that the power conferred to take depositions is purely of statutory creation and its terms cannot be extended. This ruling made more than half a century ago, has never been questioned-, and the statute (now Sec. 6384, R. S. 1909) it construed has not been changed since the revision of 1835, except in other sections to authorize the appointment in cities of over fifty thousand inhabitants of commissioners to take depositions, who, except as to the right conferred upon them to rule upon the relevancy of testimony offered, are given no greater authority than that conferred upon other officers authorized to take depositions.

There is no room here for the application of the doctrine of the inherent power of the court; this, in a general way, is applicable only when it is necessary to the court’s existence and in the proper exercise of its duties imposed by law. The power conferred is au added one, viz: the appointment of a commissioner to take and certify to the court, depositions. The statute creating this power, being ancillary in its nature, is not in any degree necessary to the court’s existence, and except for its enactment, the exercise of the power it confers would constitute no part of the court’s duty. Moreover, the statute is complete in itself, and when complied with, as it has been in this case, the power of the court is ended in so far as it is sought to regulate, the manner in which the depositions shall be taken.

While the course pursued to secure the production before the commissioner of the letters in question was unauthorized, the record discloses a substantial ground why the writ prayed for should not issue. Relator was required to appear before the commissioner as a witness as well as to produce the letters designated. The last requirement, while a mere' nullity, because it could not be enforced, did not affect the validity of the first, and upon the subpoena being served upon the witness it became his duty to appear as therein directed and testify. Nor was it any concern of his that the process was, in compliance with the order of the court, under the hand of its clerk instead of simply being signed by the commissioner. While a commissioner, as is the case with a notary public, may issue his own subpoenas, tbe local practice obtains, for tbe commissioner or notary to direct the issuance of subpoenas by tbe clerk of tbe court in which tbe suit is pending. A witness can suffer no injury from this method but on tbe contrary is given proof on its face of tbe verity of tbe process,, in tbat it is issued under tbe band of tbe clerk attested by tbe court’s seal. It lies at the foundation of good government tbat its citizens shall respond without delay when their services are required in tbe administration of justice. This was not done in tbe instant case and we find no such lack or excessive exercise of jurisdiction as to warrant our interference. This conclusion renders unnecessary a discussion of other grounds urged for tbe issuance of tbe writ.

For the reasons stated our preliminary writ is quashed. And it is so ordered.

All concur; Blair, J., in result. Woodson, C. J., absent.


author: BLAIR, J.

text:
    THE STATE ex rel. PIKE COUNTY v. JOHN P. GORDON, State Auditor.
    In Banc,
    July 3, 1916.
    1. COUNTY BONDS: Duty of State Auditor. It is the duty of the State Auditor, when bonds for building a county court house are presented to him for registration, to refuse to register them unless he is- furnished evidence showing that all conditions of the laws have been complied with in their issuance.
    2. -: Double Proposition. Two separate and distinct propositions for incurring a county indebtedness cannot be combined and submitted jointly as one question.

      3. -: -: Courthouse: Other County Buildings: Ejusdem Generis. The statute authorizing as one -j-oposition any county “to incur an indebtedness for the purpose of building a courthouse, jail, poorhouse, county sanitarium, or other county buildings” did not, by the use of the words “or other county buildings,” authorize the county to submit to the voters, as one question, a proposition to buiid two courthouses. Those general words must be restricted in their meaning to things of a character like those particularized, such as “courthouse,” “jail,” etc., and the word “courthouse” cannot be expanded by them to' mean two courthouses.
    4. -: -: Two Court( Houses: Justice a Unit. The submission to the voters as a single question a proposition to build two court houses, one at the county seat for all county purposes and another at another town for the accommodation of a common pleas court, cannot be justified on the generalized theory that justice is a unit and the same justice is to be administered in both court houses.
    5. -: Two Court Houses: Double Proposition. A proposition to issue bonds in the, amount of seventy-five thousand dollars to build a court house at the county seat and in the amount of twenty-five thousand dollars to build another court house at another town in the county for the accommodation of the court of common pleas, as one combined and joint proposition, is double, and the State Auditor is not authorized to register said bonds, although the people by a two-thirds vote authorized the county to incur the indebtedness.
    6. -: Double Proposition: Increase in Public Facilities. A ■ proposition, otherwise double, cannot be justified on the theory that the purpose is to increase the public facilities. That purpose inheres in every submission to increase the public indebtedness, whether the public corporation be a school district or a city or a county;' and no rule against doubleness could exist if a double proposition could be justified on the ground that the purpose is to increase and improve the general facilities of the corporation; and in this respect there is no difference between a school district and- a municipal corporation. [Overruling, so far as they hold to the contrary, State ex rel. Memphis School District v. Gordon, 223 Mo. 1, and State ex rel. Carrollton School District v. Gordon, 231 Mo. 547.]
    7. -: -: -: Validity of Prior Bonds. Acquiescence in the issuance and sale of prior bonds bars the right to complain of doubleness in the submitted proposition by which they were authorized, and their validity after negotiation would in no wise be affected by a holding that a subsequent submission is double, although -both propositions contemplated fin increase in the general public facilities of the corporation.

      Mandamus.
    Writ quashed.

      Tom B. McGinnis, Jones & Hayden, Hostetter & Haley and Pearson & Pearson for relator.
    (1) Voting on the proposition to issue bonds to build two court houses, in the same county, one at the city of Bowling Green and the other at the city of Louisiana, is not two separate and distinct propositions, for separate, different and distinct purposes, as set out and urged in the first division of respondent’s brief. • There is no difference between the relator and the respondent, as to what the law is, in this case. The only difference is in the application of the facts to the law. (2) The facts in the cases cited under point one of respondent’s brief, are not at all analogous to the facts in the case at bar; with perhaps the single exception of the case of State ex rel. v. Gordon, 223 Mo. 1. The case at bar presents a state of facts showing a much more decided, or striking, singleness of purpose in the proposition submitted to the voters of the county, than is shown in either of the two leading cases, wherein all phases of the difference between a single and q double proposition, submitted to voters of a county, have been very recently, thoroughly and minutely discussed by this court; and, wherein the court held '-upon the facts, as therein stated, the proposition in each was a single proposition, to-wit: State ex rel. v. Gordon, 223 Mo. 1; State ex rel. v. Gordon, 231 Mo. 547. (3) The one proposition, presented to the voters of Pike County, in voting the appropriation for two court houses, one each at Bowling Green and Louisiana, respectively, was the erection of places, only, for justice to be judicially administered. A court house, is, “the place where justice is judicially administered.*’ Bouvier’s Law Dictionary. Justice, no matter where administered, is a unit; like the North Star, fixed, invariable, unchangeable. The one purpose in the minds of the citizens circulating the petition, in the mind .of the court acting on said petition, and ordering the election, was that justice might be judicially administered, convenient to the citizens of the county. It is exactly the same justice, administered in the court house at Bowling Green, that is administered in the court house at Louisiana. The same judge presides over the court held in both houses. The same sheriff serves process issuing from either court. The same law, and rules, governs the proceedings in either court. The expenses of each court are paid out of the same public fund. There are not two distinct and different purposes, in voting for two court houses, one at Bowling Green and one at Louisiana. The purpose, or the proposition, is the same, to-wit, administration of justice. The buildings are' simply the means, or rather the place where, the one main purpose is effectuated. • The appropriation for the building of two court houses, as presented by the county court, to the voters of Pike County, is like dividing the circuit court in large cities, into many divisions. The various divisions of a .circuit court are not different propositions, or for separate and distinct purposes; but, it is the means • of carrying into effect the one purpose, administering justice, to the citizens of a populous city. So here, in the one proposition, to build two court houses in the county of Pike, is the one purpose, the constitutional right of all the citizens of this county, that ^‘courts of justice shall be open to every person, a certain remedy afforded for every injury to person, property or character, and that right and justice should be administered without sale, denial or delay.” (4) By virtue of a recent enactment of the Legislature, the law now authorizes, as one proposition, any county in this State to incur an indebtedness for the purpose of building “a court house, jail, poor house, county sanitarium, or other county buildings,” etc. Laws 1913, sec. 8, p. 125. This enactment is radically different from the old statute. Applying the rule of ejusdem generis in construing this enactment the words “or other county buildings” mean duplicate or similar to ones previously mentioned; that is, “other such like,” or other buildings of like kind or character. State v. Eckhardt, 232 Mo. 52; State v. Gilmore, 98 Mo. 213.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for respondent.
    Two separate and distinct propositions were embraced in the question submitted, thus preventing.a fair expression of the will of the voters and thereby rendering the election void. State ex rel. v. Allen, 186 Mo. 673; State ex rel. v. Wilder, 200 Mo. 103; State ex rel. v. Wilder, 217 Mo. 261; McMillan v. County Judges, 3 Iowa, 320; Gray v. Mount, 45 Iowa, 595; Denver v. Hays, 28 Colo. 114; Brown v. Carl, 111 Iowa, 610; Stern v. Fargo, 26 L. R. A. (N. S.) 665, and notes; Knoxville v. Gass, 14 L. R. A. (N. S.l 519, and notes; State ex rel. v. Gordon, 223 Mo. 1.
   BLAIR, J.

— By this proceeding Pike County seeks to compel the State Auditor to register bonds issued to raise funds to build two courthouses — one in Bowling Green for the circuit court and C0UI1£y 0fficeS) and one in the city of Louisiana for the Louisiana Court of Common Pleas. Respondent waived the issuance of the formal alternative writ and demurred. In accordance with our practice in such circumstances, the petition will be permitted to stand as and for the alternative writ.

The argued grounds of demurrer are (1) that no sufficient notice of the bond election was given, and (2) that two separate and distinct propositions were joined in the question submitted, thus preventing the voters'from exercising the liberty of choice between the two.

The question submitted to the voters was formulated by the county court in its order calling the election and was stated by it thus:

“Shall tlie county court of Pike County, Missouri, be authorized and empowered to incur an indebtedness and to issue bonds of said county of Pike to the amount of seventy-five thousand dollars for the erection of a courthouse in the city of Bowling Green, in said county of Pike, and to incur an indebtedness and to issue bonds of said county of Pike ” to the amount of twenty-five thousand dollars for the erection of a courthouse in the city of Louisiana, in said county . .

The question formulated also included, in detail, the rate of interest, times and place of payment and the power to levy a tax to pay off the bonds. The form of ballot to be used was prescribed and followed the language of that part of the order above set out. The petition and order of the county court and notice of election made it clear the courthouse proposed to be erected at Louisiana was for the occupancy of the. Louisiana Court of Common Pleas.'

At the election the question submitted received the' requisite majority of affirmative votes, and on May 24, 1916, representatives of the county presented the bonds for registration, and- this was refused. Thereupon this proceeding was begun.

I. It is respondent’s duty to refuse to register bonds unless he is furnished evidence showing “that all conditions of the laws have been complied with” in their issuance. [Sec. 1275, R. S. 1909; Hoff v. Jasper County, 110 U. S. 53.]

II. The Constitution (See. 12, art. 10) forbids counties to incur, in any year, indebtedness in excess of that year’s income “without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose:” The Constitution does not provide the manner in which the will of the voters is to be expressed under this section but leaves that to the General Assembly.' [Thornburg v. School District, 175 Mo. l. c. 26.] With respect to counties, the General Assembly has provided a method by the Act of March 22, 1913, Laws 1913, sec. 8, p. 125. That act provides that when it becomes “necessary for any county ... to incur an indebtedness for the purpose of building a courthouse, jail, poorhouse, county sanitarium or other county buildings ... in excess of the total income and revenue of such county provided for any one year” one hundred qualified signers may present to the county court a petition “setting forth the object and purpose for which the indebtedness is to be created” and praying that an election shall be held. It then becomes the duty of the county court to call an election “for the purpose set forth in such petition and to make an entry of such order on the record of the court.” Section 10 of the same act specifies the forms of ballots as follows: “Appropriation of $-for the purpose of -, Yes” and “Appropriation of $- for the purpose of -!-, No.” Under this act the county court proceeded in calling the election involved in this case.

III. This court has long held that under a statute like that just referred to, two separate and distinct propositions cannot be combined and submitted,, jointly, as one question, “so as to have one expression of the vote answer both propositions, as voters thereby might be induced to vote for both propositions who would not have done so if the questions had been submitted singly.” [State ex rel. v. Wilder, 217 Mo. l. c. 269, 270, and. cases cited.] No decision in this State questions the principle, and courts of other states have almost uniformly applied the same rule. [McMillan v. Lee County, 3 Iowa, l. c. 320; Supervisors v. Railroad, 21 Ill. l. c. 374; Lewis v. Comrs., 12 Kan. l. c. 213; Farmers L. & T. Co. v. Sioux Falls, 131 Fed. l. c. 912 et seq.; Gas and Water Co. v. Elyria, 57 Ohio St. 374; Railroad v. Peterborough, 49 N. H. l. c. 294; Brown v. Carl, 111 Iowa, l. c. 611; Denver v. Hayes, 28 Colo. l. c. 114, 115; Cain v. Smith, 117 Ga. l. c. 904 et seq.; Village v. Seymour, 34 N. Y. Misc. l. c. 95, 96; Clarke v. Board, 27 Ill. l. c. 310; People ex rel. v. County, 22 Ill. l. c. 156; Leavenworth v. Wilson, 69 Kan. l. c. 78 et seq.; S. & Ill. S. E. Ry. v. County Clerk, 74 Ill. l. c. 32; Garrigus v. Board, 39 Ind. 66; Bronenberg v. Board, 41 Ind. l. c. 504; Finney v. Lamb, 54 Ind. l. c. 2; Williams v. People ex rel., 132 Ill. 574; People ex rel. v. Baker, 83 Cal. 149; Gray v. Mount, 45 Iowa, l. c. 591; Truelsen v. Duluth, 61 Minn. 48.]

Relator’s counsel do not question the existence of the rule, but seek to show the county court complied with it in framing the question it submitted to the voters.

1. One contention is that the statute “authorizes, as one proposition, ‘any county ... to incur an indebtedness, for the purpose of building a courthouse, jail, poorhouse, county sanitarium, or other county buildings;’ ” that the “italicized words mean buildings like those specifically mentioned and, therefore, mean “courthouses” and, as a consequence, authorize a submission including two courthouses. This argument is designed, it seems, to avoid the force, if any, of the statute’s use of the term “courthouse” iu the singular. The canon of construction invoked cannot he so employed. Its effect is to restrict the meaning of the general words to things of a character like those particularized. It does not warrant a construction of the general words as mere repetition, in the plural number, of the things specified in the singular. General words, under that canon, do not explain or amplify particular terms preceding them, but are themselves restricted and explained by the particular terms. The contention made is not tenable.

2. Tested by the general rule, is the question submitted, to the voters of Pike County single or does it contain two separate purposes? The proceeds of the bonds were to be used for (1) a county (or circuit) courthouse at Bowling Green, and (2) for a common pleas courthouse at Louisiana. The submission combined the two. The voters could vote for both courthouses or against both court houses. No opportunity was given to vote for one and against the other. This appears from the face of the question submitted.

(a) “The will of the people, expressed by the adoption of the proposition for the borrowing or expenditure of money ... is the law of the land. The force and effect thus imparted to their will is intended. to be given to that will freely expressed. . . . Why should the force and effect of law be given to the vote adopting any proposition which has not rested wholly on its merits for the favor it has obtained at the hands of the people, but which may have been assisted to the votes it received, by other questions, with which it was so connected as that it must stand or fall with them?” [McMillan v. Lee County, 3 Iowa, l. c. 320.] “If they” (two propositions) “are submitted together . . . the' voter . . . has no liberty of choice.” [Gray v. Mount, 45 Iowa, l. c. 595.]

“All elections, as well for measures as men, should he perfectly free, uninfluenced hy any consideration, other than the merits of the individual man or measure proposed.” [Supervisors v. Railroad, 21 Ill. l. c. 373.]

“Two or more questions may be submitted at a single election, provided each question may be voted on separately, so that each may stand or fall upon its own merits. But that is a very different matter from tacking two questions together to stand or fall upon a single vote. It needs no argument to show the rank injustice of such a mode of submission.” [Lewis v. Comrs., 12 Kan. l. c. 213.]

This is the doctrine approved in State ex rel. v. Wilder, 217 Mo. l. c. 270, and cases cited.

(b) In State ex rel. v. Allen, 178 Mo. 555, this court recognized the rule, approving the doctrine in McBryde v. City of Montesano, 7 Wash. 69. The court held, however, that a proposition to issue bonds for the acquisition, by purchase or construction, of an. electric light plant, was single. The end, the court said, was the same, the board of trustees being left to determine the method.

In State ex rel. v. Allen, 183 Mo. 283, a proposition was held single which contemplated the issuance of bonds by a city to purchase an old light and water plant and improve it so as to render it adequate for the city’s needs. The statute (1. c. 292) was held to warrant this and the proposition was' single in that the design was to provide the city with a single adequate plant.

In State ex rel. v. Allen, 186 Mo. 673, the question submitted proposed an issuance of bonds for the purpose of the erection and the furnishing of a city hall, city prison and hosehouse and for the repair and improvement of a water and light plant, extension < f mains, wires, etc. The court held this contained “at least two separate and distinct propositions” and refused to order the bonds registered.

In State ex rel. v. Wilder, 200 Mo. 97, it was held that bonds might be issued for a-combined light and water plant. The court directed, if the question should be again submitted, “it should be for ‘a combined waterworks and, electric light plant.’ ”

In State ex rel. v. Wilder, 217 Mo. l. c. 269, a proposition was submitted to issue bonds to construct a sanitary sewer in one district in Joplin and a storm sewer in another district thereof. The court, unanimously, held the submission double. The case reviewed previous decisions. None of these decisions supports relator’s contention that a submission proposing to issue bonds to raise funds to build two separate courthouses, in separate cities, for different courts and for different amounts, contains but one object and is single.

(c) It is suggested justice is á unit and the same justice is to be administered in both courthouses. To permit generalizations of this sort to justify the union of purposes in submissions at once destroy the rule against doubleness. Cases seeming to support relator’s, position occur, but some of these depend upon the wording of a statute unlike that involved in this case (Coleman v. Eutaw, 157 Ala. 327; Truelsen v. Duluth, 61 Minn. 48; Rock v. Rinehart, 88 Iowa, 37); and in others in which the facts, seem analogous the questions raised and decided are not like that before us (Hubbard v. Woodsum, 87 Me. 88; Kemp v. Hazlehurst, 80 Miss. 443; Wimberly v. Twiggs County, 116 Ga. 50); and in others expressions used are to be confined to the facts, the actual decision being in accord with the decisions of this court. [People v. Sisson, 98 Ill. 335; People v. School District, 102 Cal. 184; People ex rel. v. Counts, 89 Cal. 15; People v. Dunn, 80 Cal. 211.]

(d) The only cases 'cited by relator in support of its contention are State ex rel. Memphis School District v. Gordon, 223 Mo. l, and State ex rel. Carrollton School District v. Gordon, 231 Mo. 547.

In the first of these this court, Graves, Burgess and Fox, JJ., dissenting (pp. 27, 28), held unobjectionable a submission which combined propositions to bond a school district (1) to build and furnish a school house in ward one, and (2) to build an addition to a school house in ward two. In that case the court relied largely upon Hubbard v. Woodsum, supra, where the question discussed was whether the jourpose to be accomplished and 'the sum to be devoted to it could be combined in the, submission. Speaking through Lamm, J., the majority held there was a resemblance between the rule against doubleness and the constitutional provision (Sec. 28, art. 4) that “no bill shall contain more than one subject.” The court concluded the discussion of that phase of the case with this: “There can be no doubt that if the proposition we are considering was an act of the Legislature instead of a proposition voted by the people, the act would stand as against the criticism leveled at it in the case at bar. May we deal more coldly and fastidiously with the people acting as sovereigns than we do with the lawmaker moving in his orbit? If so, why?”

In State ex rel. Carrollton School District v. Gordon, 231 Mo. 547, the question submitted was as to the issuance of bonds for (1) the purchase of a site and the erection thereon of a new school building; (2) the purchase of heating plants for old school buildings; and (3) the purchase of a site and the erection thereon of a new school building for colored children. Respondent contended that submission was double, or worse, but the court, Graves and Valliant, JJ., dissenting, and Burgess-, J., not sitting, held it single. Judge Yalliant had concurred in the majority opinion in the Memphis case. In announcing this conclusion it was said by Lamm, J., who again prepared the opinion: “I am commissioned by a majority of this court to say that we stand by the Memphis case ... In reaching that conclusion” (that the submission in the Memphis case was not double) “we levied tribute on the settled 'judicial exposition of the constitutional provision (Constitution, art. 4, sec. 28) providing that ‘No bill . . . shall contain more than one subject, which shall be clearly’expressed in its title.’ Reasoning from similars to similars, we concluded that the reasons underlying that constitutional interdiction were of kith and kin to the reason supporting the proposition against doubleness in the matter of' bond issues authorized by a vote of the qualified voters of a school district.” In the same opinion it was said further: “A statute is presumed to be constitutional. We did not rule in the Memphis case that such presumptions attend the vote of the people on a bond issue precisely as they do an act of the General Assembly and do not so rule now. But we ruled then and rule now that the mischiefs struck at by the constitutional provision with reference to legislation are related to the mischiefs struck at by the rule against doubleness in propositions submitted to electors. We ruled there and we rule here that the spirit of the interdiction in both instances is the same and that in order not to apply so acute and hair-splitting an analysis as would unreasonably handicap legislation, the accepted doctrine has come to be that the constitutional provision should be liberally construed; that too much detail is as bad as too little; and that matters germane and incident to the subject do not constitute doubleness; while matters having no material and natural relation to each other are double in the sense of the constitutional interdiction. In the very nature of things no rule precisely defining dóubleness can be laid down fitting each case. But it was not apparent to us in the Memphis case why, the mischief being the same, the spirit and principles of law being the same, the general conception of doubleness in the one instance might not do for a like conception in the other. We so ruled, in effect, in that case, and we stand by that ruling now.”

While the language used is somewhat broad, it is clear the court had in mind the fact that the constitutional provision and the rule against douhleness in propositions submitted to voters in bond elections are designed to prevent “log-rolling,” the one in legislation and the other in bond elections. The purpose of each is to prevent the yoking together distinct things to the end that the two combined may attract a majority of the voters when neither, separately, might be able to do so. Without such rules the strong could he made to aid the weak, which, though commendable enough in many situations, does not always work out well in legislation and elections. The kinship between section 28 of article .4 and the rule against doubleness is little, if any, closer than stated, The two decisions negative an intent to hold that all matters which might be included in one act of the General Assembly could be included in one submission to the voters. The court recognized that the presumptions which attend the acts of the State’s general agent for legislative purposes cannot be invoked to broaden the powers of a public corporation established for stated purposes. Again, the rule as to titles if extended to submissions leaves no place for the application of any rule as to doubleness as to them. It is undeniable that under section 28 of article 4 of the Constitution, the General Assembly has power to include in a single act provisions for voting bonds, by any class of public corporations, for any and all purposes for which such corporations can be authorized to vote bonds at all. If the sames rule is applied to submissions, it would follow that propositions submitted to the voters of any such corporation could . combine in one question proposals for bonds for every purpose for which such corporation could vote bonds at all, and this court would be compelled, under that sort of rule, to hold that the submission was single and unobjectionable. If the submission was no' broader, i. e., included no more' purposes, than the statute, and the statute was no broader than the General Assembly’s power in the premises, it would be sound and single when tested by the rule as to titles. If the submission was broader than the statute, or if the statute was broader than authorized, then the submission would be bad because of the lack (1) of statutory or (2) constitutional authority, and no question as to its doubleness could ever be reached. The only questions would be whether the submission was' within the statute and the statute within the Constitution. Under such a rule, the principle conceded by all cases in this and practically all the states, and by counsel, would disappear from our law.

What the court did in the Carrollton case (which depends upon the Memphis case in large part, though explaining it) was to hold that a proposition to vote bonds in separately stated amounts for two separate sites and buildings and for heating plants for other buildings was single. The real grounds upon which this conclusion rested were stated in an effort to distinguish school districts from municipal corporations and to distinguish from other statutes the statute the court was considering. It was held (1) that a school district differed from municipal corporations in .that it had but one purpose, i. e. “to educate the children of the State;” that its corporate functions are limited to that purpose, and that “in a field so circumscribed, doubleness in propositions is not so likely to arise as in the larger and more diversified field of municipal activity” wherein many purposes are served hy municipalities; (2) that under the statute applicable to bond elections in school districts “the expediency of purchasing sites, building school houses and furnishing the same was within the discretion of school boards,” and that the «voter, under that statute, “does not vote directly on the expediency of building this or that school house, or furnishing the one or, the other, or buying this or that site, but votes on a statutory subject-matter designated as the ‘question of loan,’ and his ballot can oply be ‘For the loan’ or ‘Against the loan;’ ” that the statute treats these mattters “as one subject,- the unity of which is indicated in the .ultimate end to be reached, viz., increased or better school facilities.”

The court attempted, finally, to put those decisions upon grounds peculiar to the law applicable to school districts. One of the difficulties which confronts us, despite the obvious effort in those decisions to restrict them to school districts, is that the very grounds upon which the distinction was attempted to be made are inconsistent with the existence of a rule against doubleness in any case unless it is introduced by the statute which authorizes bonds to be voted. The contrary is true. The purpose of the rule against doubleness in submissions being to prevent a species of fraud commonly called log-rolling, statutes ought not, in. any event, be construed to open the way for such logrolling unless they are so worded as to require that construction. The opinion in the Carroll-ton case, in part, moves on the assumption of a contrary rule of construction. Recurrence to all the cases in this State prior to the Memphis case disclose they were decided under statutes authorizing bonds to be voted for many enumerated purposes. The court, in those cases, proceeded upon the true theory, i. e. that the joint statutory enumeration of purposes did not warrant a combination in one submission of distinct purposes. Otherwise, those decisions cannot stand. Further, the suggestion in the Carrollton and Memphis cases that the propositions were lawfully submitted as one because they looked to the general improvement of school facilities, if sound, cannot be limited *to school districts, but applies as well to municipalities. No bonds can be voted in the latter except for the general improvement of municipal facilities,'and all bonds issued by them must be designed to that end. If all bonds designed for the improvement of the facilities the issuing corporation may establish and maintain can be voted under one submission because their proceeds are to be used to improve municipal facilities, then all purposes may be combined in every submission and all the decisions preceding the Memphis case are unsound and must be overruled, since no rule against doubleness could coexist with a principle such as that mentioned.

The argument in the Carrollton case that the vote is upon the “question of loan” and that the ballots were worded by statutory direction “for the loan” or “against the loan” in some way supported the conclusion the court reached, is bereft of force by the correct rule stated in the Memphis case (223 Mo. l. c. 19), which is that the purpose of the issuance of bonds in all cases “necessarily . . . becomes an integral element” (of the proposition submitted) “in order to make the proposition intelligible and carry information to the voter.”

In the Memphis case (223 Mo. l. c. 20), another suggestion was that, in some way, bonds previously negotiated might be affected-. There is no ground for such apprehension. The right to question the validity of bonds on the ground of irregularities in proceedings preliminary to their issuance ends with the negotiation of the bonds. Where the power to vote the bonds is absent the rule is different. Such is the general rule, established beyond cavil, and so it has been held with respect to bonds attacked, after negotiation, on the ground that the submission was double. Acquiescence in the issuance and sale of bonds bars the right to complain of doubleness in submissions. [Clarke v. Board of Supervisors, 27 Ill. l. c. 310, 311; Van Hostrup v. Madison City, 68 U. S. l. c. 297; Sala v. New Orleans, 21 Fed. Cases, l. c. 221 (No. 12246); Mercy v. Ohio, 17 Fed. Cases, 1. c. 65, 66 (No. 9457); Huidekoper v. Buchanan County, 12 Fed. Cases l. c. 838, 839 (No. 6847).] This is interjected because of the somewhat vague but somewhat sinister intimation let fall in the Memphis case and referred to above.

In addition to what has already been written the dissenting opinion of Craves, J., in the Memphis case (223 Mo. l. c. 27 et seq.), contains a further review of the principal opinion in that case which clearly points out the unsoundness thereof.

We are unable to distinguish the Memphis and Carrollton cases on principle, and the efforts made in the Carrollton case to distinguish them fails when it is examined in the light of the principle whose existence is conceded. In these circumstances those cases must be and are overruled.

IY. In view of the conclusion reached in the preceding paragraph, it is unnecessary to enter upon a

discussion of the notice given of the election. Compliance .with the statute as construed by this court (State ex rel. v. Gordon, 242 Mo. 615) is not difficult. In that case a form of notice, from heading to signature, was set out and approved by this court in Banc.

The alternative writ is quashed.

All concur, except Woodson, C. J., and Bond, J., absent.


author: GRAVES, P. J.

text:
    F. A. ORDELHEIDE, Administrator of Estate of WALTER L. LEEK, v. MODERN BROTHERHOOD OF AMERICA, Appellant.
    Division One,
    July 3, 1916.
    1. FRATERNAL INSURANCE: Certificate to L,egal Representative: Suicide. Suicide is not a defense to a suit on a certificate issued to insured’s legal representative by a fraternal beneficiary association licensed to do business in this State. The statute requires payments of death benefits to be made “to the families, heirs, blood relatives, affianced husband or affianced wife of, or to persons dependent upon, the member,” and that statute is a part of all the contracts of such an association, and it cannot claim suicide as an exemption from payment unless it complies with it.
    2. -: -: -: Certificate Authorized By Laws of Own State, it is not sufficient to claim suicide as an exemption that the defendant is a fraternal beneficiary association licensed to do business in this State and as such has issued a certificate authorized by the laws of its own State. Under • such -fircumstani es it can issue certificates in this State, but to be entitled to claim suipide as an exemption from payment, its certificates must comply with the laws c" this State, for such ..n exemption is in the nature of a privilege, and if it issues a certificate not authorized by our law it has no right to claim the exemption.
    3. LEGAL REPRESENTATIVE: Does not Mean Heirs. The words “legal representative” infrequently mean “heirs,” but in a statute declaring that a fraternal beneficiary association shall not issue 'a certificate "unless the beneficiary under said certificate shall be husband, wife, relative, legal representative, heir or legatee,” the words “legal representative” do not mean “heirs,” as is plain fro. l the context, but personal representative, or administrator, etc.
    Appeal from Warren Circuit Court. — Hon. James D. Barnett, Judge.
    Affirmed,

      Sparrow & Page for appellant.
    (1) That part of Sec. 1408, R. S. 1899, designating the class of persons to whom benefit certificates may be made payable is no part of the definition or description of a fraternal benefit society. "Westerman v. Supreme Lodge, 196 Mo. 670; Tice v. Supreme Lodge, 123 Mo. App. 85, 204 Mo. 354; Armstrong v. Modern Brotherhood, 132 Mo. App. 171. (2) When Leek had his benefit certificate made payable to “legal representatives related to the member as . . . within 90 days” after proof of death, he meant his heirs or next of kin. R. S. 1899, sec. 1411. (3) The dissenting opinion in this case was concurred in by Division No. 2 of this court, in the case of Armstrong v. Modem Brotherhood, 245 Mo. 158. This court, also, in the Armstrong case, overruled the decision of the Kansas City Court of Appeals in the case of Dennis v. Modem Brotherhood of America, 119 [Mo. App. 210, so confidently relied upon by respondent.

      Emil Roehrig for respondent.
    (1) The defense of suicide is not available where it does not appear that the deceased contemplated suicide at the time of taking out the policy of insurance. Sec. 7896, Rl S. 1899. (2) This appellant has failed to avail itself of the benefits and exemptions accorded fraternal beneficiary associations which come within the descriptions of such associations defined by Sec. 1408, R. S. 1899, because of its failure to comply with the terms of Sec. 1408-1410, R. S. 1899. Dennis v. M. B. A., 119 Mo. App. 210; Pauley v. Modem Woodmen, 113 Mo. App. 473; Herzberg v. M. B. A., 110 Mo. App. 328; Baltzell v. Modem Woodmen, 98 Mo. App. 153; Brasfield v. Modem Woodmen, 88 Mo. App. 208. (3) The contract made between appellant and the respondent’s intestate Walter L. Leek, is not such a contract as is intended to be covered by and protected by the provisions of the Missouri law relating to fraternal beneficiary associations. R. S. 1899, secs. 1408-1410 -, Herzberg v. M. B. A., 110 Mo. App. 328; State ex reí. v. Orear, 144, Mo. 129; Toomey v. Supreme Lodge, 147 Mo. 129. (4) It is tbe contract in a given ease that determines the character and legal status of the parties thereto, and in the case at bar the contract alone determines the kind of insurance written by the appellant insurance company, its name or classification by the Insurance Department being immaterial. Aloe v. Fidelity Mut. Life Assn., 164 Mo. 686; McDonald v. Banker’s Life Assn., 154 Mo. 628; Baltzell v. M. W. A., 98 Mo. App. 159; Herzberg v. M. B. A., 110 Mo. App. 333; Logan v. Fidel. & Cas. Co., 146 Mo. 115; Westerman v. Supreme Lodge, 196 Mo. 741. (5) The term “legal representative” in the common use of the words and in its ordinary meaning and signification is a term equivalent to “executor” or “administrator.” 25 Cyc. 177; Herzberg v. Modern Brotherhood, 110 Mo. App. 328. The meaning of the term in a particular case depends upon and is controlled by the context and the intent with which it is used, as well as by the existing state of things and the relative situation of the parties to be affected. Loos v. Life Ins. Co., 41 Mo. 538.
   GRAVES, P. J.

— This is the second appearance of this case in this court. It was first here upon the theory that a constitutional question was involved. [Ordelheide, Admr., v. Modern Brotherhood of America, 226 Mo. 203.] We held that there was no constitutional question involved and certified the case to the St. Louis Court of Appeals. About the same time we likewise recertified the case of Dennis v. Modern Brotherhood of America, to the Kansas City Court of Appeals. [Dennis v. Modern Brotherhood, 231 Mo. 211.]

When the Dennis case, supra, was pending here it was suggested that there were adverse views upon the question involved by the St. Louis and Kansas City Court of Appeals. [Dennis v. Modern Brotherhood of America, supra.] These differences seem to have been at least partially settled by the opinion of the majority of the St. Louis Court of Appeals in the instant case, for that opinion cites approvingly the Kansas City Court of Appeals opinions. Judge Reynolds, however, dissents, and certifies.

The contention'is sharply drawn. Plaintiff contends that whilst defendant was chartered in Iowa as a fraternal beneficiary association, and whilst it was licensed in Missouri, as such, yet the policy actually issued was an old-line insurance policy, and the statute exempting it from our general statute as to suicides has no bearing. Defendant contends contra.

To .make the issue plainer, the plaintiff contends that under the laws of Missouri pertaining to fraternal beneficiary associations, a certificate payable to the “legal representatives” could not be issued, and if so issued it then becomes an insurance policy within the purview of our general insurance laws, and suicide is no defense unless it be shown that the insured contemplated suicide at the time of taking out the certificate or policy. In the record there was no evidence tending to show that suicide was contemplated by Leek when his certificate was issued. The record shows plaintiff entitled to the full amount, if entitled to. recover at all.

The judgment of the trial court was for plaintiff for the $1000 and some accrued interest, and the majority opinion of the Court' of Appeals by Caulfield, J., affirms this judgment. The case is here in the constitutional way.

The facts of the case are few and simple, and might well be gathered from Ordelheide, Admr., v. Modern Brotherhood of America, 226 Mo. 203, supra. A restatement will take but short space, and we will therefore restate the facts.

The defendant is chartered in the State of Iowa as a fraternal beneficiary association and for some years • prior to, and at the time of, issuing a beneficiary certificate to one Walter L. Leek, of Missouri, in 1903, was licensed in Missouri as a fraternal beneficiary associa-' tion. The certificate was for the sum of one thousand dollars, as thus expressed therein:

“The Modem Brotherhood of America issues to Walter L. Leek of Warrenton, county of Warren, State of Missouri, this membership certificate, which entitles him tp membership in said fraternity, and in ease of the death of said member while in good standing, permits his beneficiary to participate in the mortuary fund to the amount of one full assessment on all members in good standing in the fraternity not to exceed one thous- and dollars, which shall be paid-to legal representatives, related to the member as . . . within ninety days after said satisfactory proofs of such member’s death shall have been furnished by the beneficiary to the board of directors at Mason City, Iowa.”

The certificate contains the usual suicide clause found in most certificates issued by associations of kindred character. Suicide, whilst sane or insane* voided the certificate. Leek committed suicide and his administrator brings this suit.

I. In our judgment the majority opinion of the St. Louis Court of Appeals, which accords with the Kansas Appeals upon this question, is right. Our statute, Eevised Statutes 1909, section 7109, contains this provision:

“Payments of dea.th benefits shall be to the families, heirs, blood relatives, affianced husband or affianced wife of, or to' persons dependent upon, the member. ’ ’

This clause was likewise in the statute at the date of the issuance of the certificate sued upon. The same section contains an exemption clause, in this language:

‘ ‘ Such association shall be governed by this article, and shall be exempt from the provisions of the insuranee laws of this State, and shall not pay a corporation or other tax, and no law hereafter passed shall apply to them unless they be expressly designated therein.”

This exemption clause was likewise in the statute at the issuance of the certificate involved here. In some particulars the old statute (Laws 1897, p. 132; Sec. 1408, Revised Statutes 1899) was amended in 1909 (Laws 1909, p. 371) but not so as to touch the question at issue in the instant case. The last clause is. one purely of exemption. In Schmidt v. Foresters, 228 Mo. l. c. 700, we practically so said. We then used this language in discussing the Act of 1897:

“The Act of 1897 simply exempts fraternal beneficiary associations from the general insurance laws. By thus exempting them the Legislature recognized that but for the exemption, their contracts would be governed by the general laws, for if not, there would be no reason for the exemption.
“Nor is it unreasonable to say, as was said.in the Jarman case (Indemnity Co. v. Jarman, 187 U. S. 197), that the defendant in the case at bar cannot claim the benefits of an exemption provided by a law, until such time as it places itself in a position to claim the benefits of the law. It cannot claim the benefits of the law merely because its contracts are of the character mentioned in the law, but to claim the exemption given, it must come under the law, and makes its contracts under the law. If it does that, then the law is read into and becomes a part of the contract, but until it does do that the general law is and must be read into' each and every one of its contracts made with a citizen of Missouri. Not only so, but if such general law once becomes a material constituent part of the contract, it cannot be eliminated therefrom by the subsequent act of the defendant. And we are of opinion that the suicide statute is substantial law, and not merely a statute of procedure.”

There, as here, we had an association which in its organization was clearly a fraternal beneficiary association. There, as here, the certificate was in the form usually issued by such an association. There is this difference, however: in the Schmidt case the beneficiary named was the mother of the insured, whilst here the beneficiary named is ‘ ‘ legal representatives. ’ ’

We held in the Schmidt case that the defendant could not avail itself of this exemption clause, because it had not availed itself of our fraternal beneficiary association laws by taking out a state license prior to the issuance of the certificate. We held further that the general law as to suicide applied, notwithstanding the character of the association issuing the certificate, and notwithstanding the form of the certificate. And all this for the reason the defendant was not protected by this exemption clause, because not acting under our law pertaining to fraternal beneficiary associations. We then said and now repeat “but to claim the exemption given it (the association) must come in under the law, and make its contracts under the law.” The italics have been added in making the quotation here, but our language was carefully measured then, because we were then, as now, settling a dispute between the two courts of appeals.

In the case at bar the defendant did not issue its contract of insurance under our' Fraternal Beneficiary Association Act, because under that act it could not make “legal representatives” beneficiaries in the contract. It is true that it had license to issue policies under our law, but it did not see fit so to do. It preferred, in violation of our law, to issue a policy authorized by its charter powers in Iowa, rather than one authorized by its license in Missouri. Its measure of authority for legitimate business in Missouri, is our statute. The test of the character of the policy it issues is the statute, and not the license it may have obtained. In State ex rel. v. Vandiver, 213 Mo. l. c. 198, Valliant, J., well said:

“The character of the relator is an-essential fact to he shown in this case, because unless it is a fraternal society, as defined by the statute, it has no right to do even the limited kind of life insurance that the statute authorizes;, but the fact that it does entirely fill that definition does not authorize it to go beyond the limit prescribed by the statute. If the relator while issuing only such life insurance policies as the statute authorizes and holding a license from the Insurance Department should be called into court to answer by what authority it is issuing such policies it would be sufficient to say: We are a fraternal society, with our lodge system, our ritual, our representative form of government and we are not doing this for profit. But if it is issuing policies of a character, not authorized by the statute, then its fraternal character, its lodge system, its ritual, its form of government, and, its no-profit plan, would be no answer or justification of its conduct.
“In Toomey v. Supreme Lodge, 147 Mo. 129, it was held that the defense of suicide was unavailing because, although the defendant was a fraternal beneficiary society, yet the policy sued on was an old-line policy of life insurance and therefore subject to the general statute, and the defendant was liable as an old-line company would be.
“In Aloe v. Fidelity M. Life Assn., 164 Mo. 675, it was held that although the defendant was chartered to do business only on the assessment plan, yet the policy it had issued in that case was not on that plan but an old-line policy and therefore the defendant was held liable as an old-line company. Other cases to the same effect are referred to in the opinions in those cases.”

We have italicized some pointed language of the distinguished judge writing that opinion. In that case the relator was clearly a fraternal beneficiary association, and was chartered as snch, bnt it was seeking license to do business not authorized by our law pertaining to fraternal beneficiary associations. This emphasizes the fact that the character of the business done, and the policy issued, is not measured by the character of the organization, but by the law which prescribes the character of the policy which can be issued under that law. If the policy issued is not one authorized by the law, the association issuing it cannot avail itself of the exemption given in the law. This is reasonable, because an exemption is in the nature of a privilege granted, and such privilege ought not to be granted, unless the association in all its doings comes in fairly and squarely under the law giving the exemption or privilege.

. Such seems to be the view taken by the majority opinion of the St. Louis Court of Appeals, and also by the Kansas City Court of Appeals in some three eases, cited in that opinion.

If such foreign fraternal beneficiary society is duly licensed in this State, it can issue certificates or policies, as authorized by our laws, and as to such can claim the benefits of the exemption, but if it issues a policy not authorized by our law it has no right to claim the exemption.

Por a fuller discussion I leave this question to the majority opinion of the St. Louis Court of Appeals in this case, and to the following eases by the Kansas City Court of Appeals: Herzberg v. Modern Brotherhood of America, 110 Mo. App. 328; Wilson v. Benevolent Assn., 125 Mo. App. 597; Kroge v. Modern Brotherhood of America, 126 Mo. App. 693: Dennis v. Modern Brotherhood of America, 119 Mo. App. l. c. 214.

■ II. In the dissenting opinion it is learnedly-argued that the construction of the words “legal representatives” as given by the majority opinion contravenes certain rulings of this court. We do not think so. We are cited to Loos, Guardian, v. Life Insurance Co., 41 Mo. 538, and Ewing v. Shannahan, 113 Mo. l. c. 194, and some cases from our Courts of Appeals.

The meaning of words must be gathered from the context. Generally speaking “legal representatives” do not mean heirs, but in some eases, owing to the peculiar manner in which the words have been used, they have been construed to mean “heirs.” But let us get the situation here. It is clear that this defendant was issuing policies or certificates under its charter powers. Its charter powers must be sought from the Iowa fraternal beneficiary association act. As to beneficiaries, that law reads:

“No fraternal association created or organized under the provisions of this act shall issue any certificate of membership to any person under the age of fifteen years, nor over the age of sixty-five years, nor unless the beneficiary under said certificate shall be husband, wife, relative, legal representative, heir or legatee of such member.”

Note the language of this law. It not only uses the term “legal representative,” but also the term “heir.” In the connection in which the term “legal representative” is here used, it cannot be said to mean “heir” without convicting the Legislature of pure ignorance. The Legislature was determining who should be made beneficiaries coming under the law, and it proceeded to name the different classes. In so doing the Legislature made “legal representative” one class of beneficiaries and “heirs” another class. These two are, and were intended to be just as distinct, as the classes of “husband,” “wife,” “relative” or “legatee.” Under this statute the term “legal representative” cannot be construed to mean “heir.” It .can only be construed as the majority opinion construed it. When Leek applied for the certificate he named “legal representative” as the beneficiary. The certificate was so issued, and when we consider the Iowa law under which defendant was chartered, it is clear that the parties understood “legal representative” in the sense of personal representatives and not in the sense of heirs.

On this state of facts, this court has never adjudged “legal representatives” to mean “heirs,” nor have we so done under any similar state of facts. That this policy was issued with the Iowa law in view there is no question. That the Legislature of that State never used the term “legal representative” in the sense of “heirs” is apparent, because of the use of both terms. The fact that under our law a “legal representative” cannot be made a beneficiary does not change the situation. It is clear that the parties intended the amount of the policy to go to the estate.

By the judgment of the circuit court, it so went. Let that judgment be affirmed. It is so ordered.

All concur except Woodson, J., absent.