author: GRAVES, J.

text:
    THE STATE ex rel. CHARLES M. YORK, Assistant Prosecuting Attorney of Schuyler County, v. J. S. LOCKER, Judge of Probate Court.
    In Banc,
    December 22, 1915.
    1. COURTS: Legislative Jurisdiction. As to a constitutionally recognized court, it is a general rule that the Legislature can neither add to nor subtract from the jurisdiction provided for it by the Constitution. And the enumeration in the Constitution of certain specific powers, with no hint of others to be added by law, is to be considered as an exclusion of all other powers.
    2. PROBATE COURTS: Power to Issue Habeas Corpus and Injunction Writs. The Constitution enumerates the matters of which probate courts shall take cognizance, and neither a proceeding in habeas corpus nor a writ of injunction is among them, nor is either akin to the subjects named. The Constitution confers no power upon probate courts to issue writs of habeas corpus or injunction; and so much of section 2442, Revised Statutes 1909, as attempts by the use of the words “some court of record” to confer upon probate courts such power, is unconstitutional and void.
    3. HABEAS CORPUS: What Courts May Issue. The Supreme Court, courts of appeals, circuit courts and county courts (when aided by statute) have a constitutional warrant for issuing writs of habeas corpus, but the Constitution confers no such power on probate courts, nor does it authorize the Legislature to confer it. •

      Prohibition.
    Writ granted.

      Walter Higbee and Charles M. York for relator; Higbee & Mills of counsel.
    (1) The probate court or the judge thereof has no jurisdiction to issue a writ of habeas corpus. Secs. 1 and 34, art. 6, Constitution; State ex rel. v. Tincher, 258 Mo. 15; State ex rel. v. Woodson, 161 Mo. 444; Johnson v. Railroad, 259 Mo. 544; Turner y. Anderson, 236 Mo. 529; State ex rel. v. Nast, 209 Mo. 719; 11 Cyc. 706, o; Harding v. State, 126 S. W. (Ark) 91; Finn v. Walsh, 121 N. W. (N. D.) 766, syl. 3. (2) The judge of the circuit court of Scotland, where petitioners were confined, had exclusive jurisdiction to issue the writ of habeas, there being no allegation in the petition that he was absent from the county. Sec. 2509, R. S. 1909; Ex parte Ganme, 162 Mo. 390; Ex parte Shoffner, 173 Mo. App. 403.

      Fogle & Fogle for respondent.
    (1) The probate court or judge in vacation had jurisdiction to issue the writ of habeas corpus. Sec. 2441, R. S. 1909'; State v. Millsaps, 69 Mo. 359; State ex rel. v. Tincher, 258 Mo. 19; State v. Wilson, 175 S. W. 603. (2) Certiorari will lie from the Supreme Court to review the proceedings in a habeas corpus case pending the circuit court, and before those proceedings hhve culminated in a trial, order or judgment; and to inquire into an absence, excess or abuse of jurisdiction. State ex rel. v. Wurdeman, 254 Mo. 569. (3) Prohibition being an extraordinary writ cannot be resorted to when the ordinary and usual remedies provided by law, such as certiorari or other modes of review, are available. Mastín v. Sloan, 98 Mo. 252; State v. Klein, 116 Mo. 259; State v. Bower-man, 40 Mo. App. 576; Delaney v. Police Court, 167 Mo. 679. (4) Application for the writ of prohibition is premature until exception has been taken to the jurisdiction of the lower court and overruled and will be refused if this has not been done, for it is invariably presumed that courts will give to parties the relief to which they show themselves entitled. State v. Gill, 137 Mo. 681; State ex rel. v. Stobie, 194 Mo. 14; State v. Pox, 85 Mo. 61; State v. Withrow, 108 Mo. 1 ; State v. Anthony, 65 Mo. App. 543.
   GRAVES, J.

To give the respondent the benefit of all doubt, we adopt the statement of facts presented 'here by his able counsel. In the view that we now have, and long since have had, of the law, this statement of facts will suffice. It reads:

“Jacob Gardner, Ivan Huff and Noble Bass were arrested by the sheriff of Schuyler county, on the complaint of Rosa Hoxie, charging them with the crime of rape. They were brought before the justice who issued the warrants, and their preliminary hearing was set for the 17th day of June, 1915. On said day the said sheriff produced them before the said justice, and indorsed his return on the said warrants and delivered them back to the said justice. The accused then filed with the said justice, before the commencement of the said hearing, their affidavit for a change of venue to some other township. Said justice forthwith awarded a change of venue and ordered said cause sent to John Minear for hearing before him on the 27th day of June, 1915, and then and there issued and delivered to said sheriff, as jailor of said county, a commitment for said accused, and said sheriff took said accused to the jail of Scotland county, where he had been confining them on account of the insufficiency and insecurity of the jail of Schuyler county. Said accused were never taken before said John Minear, and the transcript of the other justice, together with the papers in the cause, was not sent to nor filed with said John Minear until several days after the change of venue was awarded as aforesaid.
“Eventually, the said John Minear discovered that the 27th day of June was Sunday and he then served notice on the accused that he had set the 1st day of July for the" hearing, thus adjourning said cause more than ten days without the knowledge or consent of the accused and contrary to the laws of Missouri.
“The accused then, on the 29th day of June, same being twelve days after the change of venue was awarded, applied to the probate judge of Schuyler county, in the absence of the circuit judge, for their discharge from custody, alleging that the said commitment so issued, and under which they were illegally restrained, was void and that they had not been accorded a hearing within the time fixed by law.
“The distinguished attorneys for the State contested the issuance of the writ of habeas corpus, but the probate judge, after hearing the arguments of counsel for both sides, issued the writ and delivered the same to said sheriff, and in compliance with said writ, said sheriff produced said accused before said judge and made and filed his return to said writ of habeas corpus on the 30th day of June, 1915. Then by agreement of counsel and on the request of the said accused the habeas corpus matter was set for trial on the 7th day of July, 1915. But the service of the provisional writ of prohibition being had, preceding said date, this matter thus stands in abeyance to this day.
“The accused, contending that the return of the warrants ended their force from that date, and that the said commitment was without any authority of law and void and of no force, now believe that they were entitled to their discharge at the time they filed their petition for the writ of habeas corpus; and they now contend that, inasmuch as the sheriff attached the writ of habeas corpus to his return to said writ and filed the same therewith, he is now holding the accused without any writ, process, precept or warrant of law, and they are therefore entitled to their liberty.”

It should be added that as one ground for the application to this court for the writ of prohibition, it is charged that the probate courts of the State are without constitutional authority to issue writs of habeas corpus, and that therefore sections 2441 and 2442, Revised Statutes 1909, which purport to grant such authority are unconstitutional and void. In our judgment this contention is well founded, as we shall attempt to demonstrate, in the opinion to follow. Other grounds are urged, but if this be good, then the discussion of the others would be mere superfluity. This sufficiently states the case.

The question here involved is an interesting one. I first became interested in it in the course of my early practice. That sections 2441 and 2442, Revised Statutes 1909, grant to probate courts as courts of record, the power to grant writs of habeas corpus must be conceded. .We have also statutes authorizing a probate court to grant a temporary injunction. [R. S. 1909, secs. 2512 and 2513.] In a series of cases of the Rich Hill Coal Mining Co. versus divers parties, temporary writs of injunction were granted by the probate court of Bates county and the cases certified to the circuit court of said county for trial upon the question of a permanent injunction. These temporary writs were prepared by the local counsel for such Mining Company. In the circuit we moved to quash the preliminary injunctions on the sole ground that the probate court had no constitutional power to issue such a writ, and Hon. .Tames H. Lay, then the circuit judge of the 29th circuit, sustained said motion. From that time on I have heard of no temporary injunction being granted by probate courts in that circuit. The question there involved is the question here involved. It is the simple question as to whether or not the Legislature can give to a court a power not contemplated by the constitutional provisions fixing the powers of such court.

It is a general rule that the Legislature can neither add to nor subtract from the constitutional powers of a court. In 11 Cyc. 706, it is said:

“The provisions of the Constitution may be such as to operate as an express restriction or limitation upon legislative authority in respect to matters of the character under consideration, and it is a general rule that the Legislature is powerless to interfere with the jurisdiction, functions, or judicial powers conferred by the Constitution upon a court, nor can it diminish, enlarge, transfer, or otherwise infringe upon the same, nor abolish, reorganize, divide, or consolidate such constitutional courts or judicial districts, especially so where the court has long been acquiesced in as permanent.”

In State ex rel. Cave v. Tincher, 258 Mo. l. c. 17, Walker, J., said:

“These cases, while aptly illustrative of the application of the general rule i-n regard to the limitations placed by the Constitution upon legislation, do not, except in the Redmond case (Redmond v. Railroad, 225 Mo. 721), have particular references to the jurisdiction of courts as defined by the organic law. The rule, however, was by clear implication approved in Vail v. Dinning, 44 Mo. 210, construing an act of the Legislature which authorized a contestor for the office of circuit judge to institute an original proceeding in the Supreme Court to determine the issue. Wagner, J., speaking for the court, said: ‘ In' the first place, . . . the jurisdiction of this court is defined and. limited by the Constitution. It has such-powers and jurisdiction as the Constitution has conferred upon it — no more, no less. It cannot shirk any 'duty imposed on it by the organic law, nor can it extend its powers to take cognizance of any matter not within the scope of its limited authority. The Legislature can neither add to nor diminish its rightful jurisdiction. That body can invest it with no original jurisdiction when it is not given by the Constitution, nor can they deprive it of its appellate jurisdiction.’ The doctrine here announced was approved in State ex rel. v. Flentge, 49 Mo. 488, in which the court held that the Legislature was not authorized to enact a law1 subjecting clerks of courts to trial in the Supreme Court for misdemeanors in office. By parity of reasoning it would seem that this rule should apply with equal force to any other constitutional court whose powers are therein definitely defined, as is the case in regard to probate courts. [Sec. 34, art. 6, Constitution.] ”

It is true that Judge Walker adds that even in violation of the rule the Legislature has added powers to the probate court, and instances there habeas corpus and injunctive statutes.

However in State ex rel. v. Woodson, 161 Mo. l. c. 454, Judge Valliant does not leave a debatable question in the case. He there says:

“It is contended that our statutes confer on the judge the authority to hear and determine the whole issues in a case of this kind in vacation. If there is such a statute, it is in violation of section 1, article 6, of our Constitution, above quoted. In that section the Constitution disposes of all the judicial power of the State in matters of law and equity, and it leaves nothing to be disposed of by the General Assembly. This is the view the Supreme Court of Michigan took of the same subject. That court said :,‘By article 6 of our Constitution, the judicial power is vested in one Supreme Court, in circuit courts, in probate courts, and in justices of the peace . . . Section 2 of this act confers upon the judge in vacation the authority to hear and determine summarily upon the questions of the insolvency of the debtor; the giving or attempting to give preferences; his refusal or neglect to make assignment of his property; and his orders and judgment (if he makes any) are final and conclusive ... A statute which confers such judicial powers upon a circuit judge at chambers is clearly in conflict with article 6, section 1, of the Constitution.’ [Risser v. Hoyt, 53 Mich. 185.] ”

It may therefore be safely asserted as a rule that as to the constitutionally recognized courts the Legislature can neither add to nor take from the jurisdiction provided for such court by the Constitution.

By section 1 of article 6 of the Constitution, the whole judicial power of the State is thus vested:

“The judicial power of the State, as to matters of law and equity, except as in this Constitution otherwise provided, shall be vested in a Supreme Court, the St. Louis Court of Appeals, circuit courts, criminal courts, , , , ’ . ■ probate courts, county courts and municipal corporation courts.”

By later constitutional amendments the Kansas City and Springfield Courts of Appeals have been added to the foregoing list. By section 34 of article 6 the jurisdiction of prohate courts is 'fixed. This section reads:

“The General Assembly shall establish in every county a probate court, which shall be a court of record, and consist of one judge, who shall be elected. Said court shall have jurisdiction over all matters pertaining to probate business, to granting letters testamentary and of administration, the appointment of guardians and curators of minors and persons of unsound mind, settling the accounts of executors, administrators, curators and guardians and the sale or leasing of lands by administrators, curators and guardians; and also jurisdiction over all matters relating to apprentices : Provided, that until the General Assembly shall provide by law for a uniform system of probate courts, the jurisdiction of probate courts heretofore established shall remain as now provided by law.”

We have a specific outline of the matters over which probate courts can exercise jurisdiction. Not a thing in-this clause of the Constitution even hinting at any power in such courts to grant the extraordinary writs, either of injunction or habeas corpus. The subjects mentioned in this section are not even akin to injunction proceedings or habeas corpus proceedings. In other words the Constitution says to the Legislature, “You shall establish in every county a probate court,” but it, in the very same section, says what.matters shall be cognizable before such courts when so established, and a proceeding in habeas corpus is not one of the things named. Nor does it even fall within the general classes of matters there named. Following the general rule that constitutional clauses fixing the jurisdiction of a court are clauses restrictive in nature, there can be no doubt that the Legislature passed an unconstitutional and void law in the enactment of section 2442, Revised Statutes 1909', so far as the probate- courts may be considered therein as courts of record. Whilst it' is true that this section does not specifically name probate courts, yet it does say that the petition for the writ of habeas corpus must be addressed to some court of record, and a probate court is a court of record, so that such a court falls within the class of courts named in the statute. It is clear therefore that this section authorizes probate courts to hear such cases, and equally clear that such a power is not one given such court by the Constitution. The statute therefore, in so far as it attempts to include probate courts, is violative of the Constitution (Sec. 34, art. 6) and void.

Approaching the question from another angle we find that the Constitution-makers were somewhat spe-‘ cific with reference to writs of habeas corpus. Thus by section 3 of article 6 of the Constitution the Supreme Court is given specific authority to issue such writs — section 12 of the same article gives specific authority to the Courts of Appeals. Section 22 of the same article gives authority to the circuit courts. Such authority is not specific as are the other two, but ‘is broadly couched in the language:

“The circuit court shall have jurisdiction over all criminal eases not otherwise provided for by law; exclusive original jurisdiction in all civil cases not otherwise provided for.”

Prom section 36 of article 6 may he gathered the power of a county court. That section reads:

“In each county there shall be a county court, which shall be a court of record, and shall have jurisdiction to transact all county and such other business as may be prescribed by law. The court shall consist of one or more judges, not exceeding three, of whom the probate judge may he one, as may be provided by law.”

We have italicized the clause which might authorize the Legislature to confer jurisdiction in habeas corpus on such courts. So that of all the courts named in the Constitution, constitutional warrant to hear habeas corpus proceedings may he found for the Supreme Court, Courts of Appeals, circuit courts and county courts exercising such a power. Of the divers courts of record the probate courts stand alone without such a constitutional warrant of authority. Where the Constitution-makers were continually dealing with, the subject of writs of habeas corpus, it is singularly strange that they would use language as to all courts of record tending to give authority for such a jurisdiction, and use the limited language found in section 34 of article 6 with reference to probate courts.

Having made ample provision for the hearing of snch proceedings in other courts, the express powers given to the probate courts as to entirely different- subject-matters should be considered as limiting the powers of snch courts to the matters in said section 34 named. The constitutional granting of specific powers, without any hint of others to be added by law, must be taken as an exclusion of all other powers, including in such exclusion the hearing of habeas corpus proceedings.

We see no escape from holding that the statutory attempt to confer this jurisdiction upon probate courts is void and we so hold. It follows that our preliminary rule in prohibition should be made permanent and it is so ordered.

All concur.


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    THE STATE ex rel. HOWARD A. GASS, State Superintendent of Public Schools, v. JOHN P. GORDON, State Auditor.
    In Banc,
    December 22, 1915.
    1. REVENUE: Meaning of Word. Unrestricted by the, word “ordinary,” tbe word “revenue” as used in the Appropriation Act of 1915, declaring that “there is hereby appropriated out of the State Revenue Fund, to be applied to the. support of the public schools of the State, one-third of the ordinary revenue paid into the State Treasury for the fiscal years from July 1, 1914, to June 30, 1916,” means “the annual and current income of the State, however derived, which is subject to appropriation for general uses.” This definition excludes such income as the Constitution, or any permanent existing law, may specifically devote to a special purpose, in contradistinction to a general public use, or income which is not required to be paid int-o the State Revenue Fund, but into a special fund, among which are the collateral inheritance tax, the money derived from license fees on motor vehicles, fees paid into the State Treasury to the . credit of the Insurance Department Fund, and other funds of a similar sort.

      2. -: -: As Used in Constitution. The words “State revenue” used in-section 7 of article 11 of the Constitution, requiring at least “twenty-five per cent of the State revenue, exclusive of the interest and sinking fund, to be applied annually to the support of the public schools,” refer back to the words “ordinary revenue of the State,” used in section 6 of said article, for their definition; but neither expression affords a clear-cut guide as to what income of the State is included.
    3. -: Means Ordinary Revenue. The word “revenue” as used in the Constitution and in the Appropriation Act of 1915 is limited by the word “ordinary,” for both instruments use the words “ordinary revenue” in referring to the appropriations for the support of the public schools; and every appropriation act since 1877, except that of 1895, has used either the words “ordinary State revenue” or “ordinary revenue;” and so historically and lexically the word “revenue” when used in. connection with an appropriation for the support of public schools means “ordinary revenue” — that is, revenue or income arising from usual methods of taxation.
    4. ORDINARY REVENUE: Meaning. The words “ordinary revenue,” as used in section 6 of article 11 of the Constitution and in section 1 of the Appropriation Act of 1915, Laws 1915, p. 89, mean “the regular and usual annual income of the State, however derived, which is subject to appropriation for general public uses.”
    5. -: Administrative Interpretation and Practice. The interpretation put upon the words “ordinary revenue” used in the Constitution and appropriation acts, for a long series of years, by the executive officers of the State upon whom the duty of interpretation i;s cast, .and long acquiesced in by the Legislature, is, in the absence of other qualifying considerations, decisive; but where new sources of income have recently been provided by law, and there has been no uniformity of interpretation by such officers, the rule is of no aid.
    6. -: Share of Public Schools: Taxes. Under the Appropriation Act of 1915, appropriating “one-third of the ordinary revenue paid into the State Treasury” to the support of the public schools, one-third of all moneys received as taxes on real or personal property from county collectors, and one-third of the county foreign insurance tax, the private car tax and the express companies’ tax, was properly applied to that purpose.
    7. --: -: Things Not Included. But receipts from old bond and coupon accounts, from amounts refunded, from insurance on Federal Soldiers’ Home, from sale of old furniture, from itinerant vendors’ licenses, and from Fish Commissioner’s fund, are not ordinary revenue, and one-third thereof cannot be so applied.
    8. -: -: Warehouse and Grain Department Fees. Only one-third of the net revenue left, after paying all operating expenses, of the money or fees collected by the Warehouse and Grain Department for the inspection of hay and grain, are appropriated by the words “ordinary revenue” to the public schools, since the department was not intended to be an earner of profits, but only to pay its own way.
    9. —:-: -: State as Trustee: General Rule as to Earnings. The general rule should be that whenever a statute creating a department of government of this State provides, or whenever an appropriation act for the support of such a department contains a proviso, that the cost of maintaining and operating it shall be defrayed wholly from fees earned by it, and not otherwise, the State is, as to an ¿mount equal to the cost of upkeep, a trustee merely of the moneys paid into the State Treasury, and its general revenue fund is entitled only to the surplus after deducting the operating expenses. As to all such departments the term “revenue” means net revenue.
    10. -: -:--: Compensation Not Dependent Upon Earnings. But when the payment of operating expenses of any department of the State government is not dependent upon its earnings, and the earnings are required by express statute to go directly into the State Treasury, the gross sum of its earnings is to be considered as ordinary revenue. The earnings of the Bublic Service Commission, State Auditor and Secretary of State are ordinary revenue, since the statutes provide for the payment of the expenses of all those departments whether they earn fees or not, and that the fees earned by them are to be paid into the State Treasury.
    11. -: -: Interest. Interest accruing to the State from moneys deposited in banks or other depositaries is to be considered “ordinary revenue,” unless it arises from a special fund and by express statutory provision the interest is to be. expended for the identical purpose for which the special fund from which it accrues is to be spent.
    12. -: -: Fines: Not Ordinary Revenue. Pines paid into the State Treasury in pursuance to a judgment of the Supreme Court finding certain corporations guilty of a violation of the anti-trust laws, are revenue, but not “ordinary revenue,” and the State Auditor is not required by an appropriation of one-third of the “ordinary revenue” to the support of the public schools, to apply them to that purpose.
    13. -: —;-: Insurance Department Fund. Neither are the moneys which for some years have been intermittently transferred from the “Insurance Department Fund” to the General Revenue Fund ordinary revenue, and no part of them is to be applied to the public schools. They are not annual or current revenue, are required to be paid into a special fund, and only the overflow reaches the State Revenue Fund, and then only' in pursuance to an express and special act, passed, ordinarily, biennially.

      14. -: -- — : Factory Inspection Fund. Neither tha gross nor the net income from the Factory Inspection Fund is a part of the “ordinary revenue” appropriated to the support of the public schools, for the reasons: First, such income, or fees, go into a special fund, and the net amount is not paid into the General Revenue Fund in regular and annual payments, but biennially only; and, second, the fund is primarily devoted to the payment of the expenses of the department, and no excess of expenses over income can be made up from general revenue.
    15. -: -: Examiners Appointed by State Auditor. Only the net earnings of the examiners appointed by the State Auditor to examine and audit the books of the several counties and divers State institutions, should be counted as “ordinary revenue,” since the statute seems to contemplate that only the excess of their earnings, after their salaries are paid, is to pass to the State Revenue Fund.
    16. -: -: Other Sources of Income. Having adopted as a guide the rule that “ordinary revenue” within the purview of the Appropriations Act of 1915 declaring that “one-third of the ordinary revenue paid into the State Treasury” during the biennial period are appropriated to the support of the public schools, means “regular and usual annual income of the State which is subject to appropriation for general public purposes,” it is held that the entire income from certain specific sources enumerated is embraced within the act (whether arising from taxation or gross earnings); that the net (but not the gross) earnings of other departments enumerated are also included; and that certain other sources of income, which comes into the State Treasury biennially, or intermittently, also enumerated, are excluded.
    Mandamus.
    For judgment see opinion, page 422.

      A. T. Dumm for relator.
    (1) The terms “ordinary revenue,” as used in section 6 of article 11 of the Constitution of 1875 and in the Appropriation Act of 1915 (Laws 1915, p. 89), and “State revenue,” as used in section 7 of article 11 of the Constitution, are synonymous, and include all receipts into the State Treasury to the credit of the revenue fund. Secs. 6 and 7, art. 11, Constitution 1875; Laws 1915, p. 89; Laws 1895', p. 18; 34 Cyc. 1691; United States v. Bromley, 12 How. (U. S.) 97; Bates v. Porter, 74 Cal. 224; People ex rel. v. Supervisors, 4 Hill (N. Y.), 23; People v. Railroad, 34 Barb. (N. Y.) 134; Iverson Brown’s Case, 91 Ya. 779; State ex rel. v. School Fund, 4 Kan. 268; Commonwealth v. Bailey, 3 Ky. L. R. 117; Brown v. Elder, 32 Colo. 535; United States v. Mayo, 1 Grail. 396; State v. Ewing, 22 Kan. 708; Donelson v. State, 3 Lea (Tenn.), 695; Yancey v. Mfg. Co., 33 Gra. 624; Lamar W. & E. L. Co. v. Lamar, 128 Mo. 202. (2) Section 7 of article 11 of the Constitution of 1875 is a mandate to the Legislature to appropriate not less than twenty-five per cent of the State revenue, exclusive of the interest and sinking fund, to be applied annually to the support of the public schools. And the exclusion of the “interest and sinking fund” is the inclusion of all other receipts into the treasury to the credit of the revenue fund.

      Robert Burlthann, Attorney for the Board of Education of the City of St. Louis; Gage, Ladd <& Small, Attorneys 'for the School District of Kansas City; H. K. White, Attorney for the School District of the City of St. Joseph; Ed. D. Merritt, Attorney for the School District of Springfield; Kelsey S Cameron, Attorneys for the School District of Joplin; Mahan, Smith S Mahan, Attorneys for the School District of Hannibal; Charles E. Yeater, Attorney for the School District of Sedalia; A. G. Young, Attorney for the School District of Webb City; and Arthur B. Chamier, Attorney for the School District of Moberly, Amici Curiae.

    (1) The expression “ordinary revenue” employed in the Act of 1915 is necessarily equivalent to the expression “State revenue” as used in article 11, section 7, of the Constitution. (2) “State revenue” includes inspection fees and the like whether this expression be considered, 1st, independently: State ex rel. v. Ewing, 22 Kan. 708; United States v. Bromley, 12 Tlow. (U. S.) 88; Van' Sant v. Stage Co., 59 Md. 330; Power & Conduit Co. v. Buffalo, 131 App. Div. (N. T.) 485; or, 2nd, in connection with the context: Art. 11, secs. 6, 8, Constitution.
   FARIS, J.

This is an original proceeding by mandamus, brought by relator as State Superintendent of Public Schools, to compel respondent, as State Auditor, to set apart and certify for payment to the relator for the use of the public schools of the State, the sum of $496,587.34, under the Act of February 12, 1915 (Laws 1915, p. 89), which required the State Auditor to ascertain and set apart one-third of the ordinary revenue for the support of the public schools.

The case is here upon the pleadings and an agreed statement of facts. The pleadings are conventional, and since no point is made touching them, we need not cumber the books with them.. The agreed statement of facts, which we apprehend will be found sufficient to convey an understanding of the conditions and issues, runs thus:

“It is agreed that during the fiscal year ending June 30,1915, there were paid into the State Treasury to the credit of the General Revenue Fund, the following sums from the different sources mentioned:
1. From county collectors (tax on real and per-
sonal property) ........■.....................$3,851,174 61
2. County foreign insurance tax................. 365,449 17
3. Private car tax .............................. 9,870 90
4. Express companies’ tax ..................... 44,737 68
5. Notaries’ commissions ...................... 12,336 00
6. Land Department fees ....................... 556 22
7. Fees earned in office of State Auditor......... 8,380 88
8. Fees earned by office of Secretary of State---- 9,719 30
9. Incorporation tax (fees paid by corporations upon their incorporation and upon their increase of capital stock)...................... 87,017 50
10. Fees from Excise Commissioner of city of St.
Louis ...........................'............ 42,462 00
11. Proceeds of sale of beer stamps .............. 460,858 27
12. Interest received from State depositaries...... 147,223 35
13. Sale of oil stamps (being fees from oil inspections) .................’..................... 150,466 80
14. Interest on deposit of fees by St. Louis Excise
Commissioner ...........".................... 47 17
15. Interest on deposit of Fish Commission....... 18 74
16. Excess fees from clerk of Supreme Court, clerk of St. Louis Court of Appeals, clerk of Springfield Court of Appeals, clerk of Kansas City
Court of Appeals ............................ 3,573 62
17. Fees collected by Excise Commissioners of St.
Louis county ............................... 3,713 02
18. Receipts from sale of laws ................... 2,018 50
19. Receipts from old bond and coupon account____ 15,270 43
20. Receipts from amounts refunded ............. 36,032 06
21. Receipts from fines assessed against lumber
companies for violation of Anti-Trust Act...... 252,728 65
22. Receipts from fees of Poultry Experiment Station ............................■............. 5,280 96
23. Receipts from fees of Warehouse and Grain
Department .................................. 127,123-37
24. Moneys earned by State Auditors’ Examiners... 6,702 08
25. Receipts from insurance on Federal Soldiers’
Home ....................................... 2,308 92
26. Receipts from sale of old furniture............ 165 00
27. Receipts for Itinerant Vendors Licenses...... 25 00
28. Receipts from fees of Bureau of Labor........ 2 07
29. Receipts from fees of Board of Agriculture____ 25 00
30. Receipts from fees of Fruit Experiment Station 299 72
31. Receipts from Fish Commissioner’s refund..... 301 05'
32. Transferred from Insurance Department. Fund... 125,000 00
33. Transferred from Factory Inspection Fund..... 6,271 93
34. Transferred from Text-Book Fund.......____ 990 00
35. Receipts from fees of Public Service Commission 36,946 87
“The aggregate of the items enumerated above, numbered 1, 2, 3 and 4, is $4,271,232.36. The respondent, State Auditor, did on July 3, 1915, set apart and certify to the relator one-third of said sums, 'that is to say, $1,423,744.12, as the total amount to be apportioned by relator for tbe benefit of tbe public schools of the State.
“Tbe respondent, as State Auditor, and bis predecessors in said office, bave continuously annually for many years prior to tbe present year, set apart and certified to tbe relator and tbe predecessors of tbe relator in tbe office of State Superintendent of Public Schools, in addition to one-third of tbe moneys derived from tbe first four sources above mentioned, one-third also of tbe moneys derived from tbe following sources, to-wit:
5. Notaries commissions.
6. Land Department fees.
7. Fees earned in office of State Auditor.
8. Fees earned by office of Secretary of State.
9. Incorporation tax.
10. Fees from Excise Commissioner of city of St. Louis.
11. Proceeds of sale of beer stamps.
12. Interest received from State depositaries.
13. Sale of oil stamps.
14. Interest on deposit of fees by St. Louis Excise Commissioner.
15. Interest on deposit of Fisb Commission.
16. Excess fees from clerk of Supreme Court, clerk of St. Louis Court of Appeals, clerk of Springfield Court of Appeals, clerk of Kansas City Court of Appeals.
17. Fees collected by Excise Commissioners of St. Louis county.
“That tbe moneys derived from said sources, numbered 5 to 17, both inclusive, and paid into tbe State Treasury to tbe credit of tbe General Revenue Fund during tbe year ending June 30, 1915, amounted in tbe aggregate to $926,372.87, no portion of which has been set apart and certified by respondent as State Auditor to tbe relator, for tbe year ending June 30, 1915.
“Neither tbe respondent, as State Auditor, nor any of bis predecessors in said office, bave heretofore set apart or certified to the relator or bis predecessors in the office of Superintendent of Public Schools, any portion of the moneys derived and paid into tbe State Treasury to tbe credit of tbe General Revenue Fund from tbe following sources:
18, Receipts from sale of laws.
19. Receipts from old bond and coupon account.
20. Receipts from amounts refunded.
21. Receipts from fines assessed against lumber companies for violations of Anti-Trust Act.
22. Receipts from fees of Poultry Experiment Station.
23. Receipts from fees of Warehouse and Grain Department.
24. Moneys earned by State Auditors’ Examiners.
25. Receipts from insurance on Federal Soldiers’ Home.
26. Receipts from sale of old furniture.
27. Receipts from Itinerant Vendors’ Licenses.
28. Receipts from fees of Bureau of Labor.
29. Receipts from fees of Board of Agriculture.
30. Receipts from fees of Fruit Experiment Station.
31. Receipts from Fish Commissioner’s refund.
32. Transferred from Insurance Department Fund.
33. Transferred from Factory Inspection Fund.
34. Transferred from Text-Book Fund.
35. Receipts from fees of Public Service Commission.
‘ ‘ Some of the laws from which these moneys were derived and paid into the State Treasury are of comparatively recent enactment, as will he pointed out in the briefs to he filed.
“The relator here expressly waives and abandons any claim to a setting apart or a certificate to him by respondent of any part of the moneys derived from the sources now to be mentioned and already referred to in this statement by numbers, as follows:
19. Receipts from old bond and coupon account.
20. Receipts from amounts refunded.
. 25. Receipts from insurance on Federal Soldiers’ Home. *
26. Receipts from sale of old furniture.
27. Receipts from Itinerant Vendors’ Licenses.
31. Receipts from Fish Commissioner’s refund.

And it is agreed that the relator’s petition be taken and regarded as amended by striking out any claim to a setting apart of moneys derived from any of the sources last mentioned.

“After excluding from consideration the moneys derived from the six sources last mentioned (claim to which is now abandoned), the moneys derived from the other sources mentioned (no part of which has ever been set apart and certified by State Auditors for the benefit of the public schools), and paid into the State Treasury to the credit of the General Revenue Fund, amount to the sum of $563,389.15.

“The moneys paid out for salaries and expenses of the Warehouse and Grain Department during the period mentioned, were $96,491.42. The receipts of said department were $127,123.37.

“The sum,paid out of the State Treasury for the support (salaries and expenses) of the Public Service Commission during the year mentioned were largely in excess of the fees paid into the State Treasury and earned by said commission. .

“The same is true as to the proceeds of the sale of laws; the expense of publishing the laws being greater than the amount received from the sale.

“The expense of maintaining the Poultry Experiment Station, which is paid out of the State Treasury, is largely in excess of the fees received on that account.

“The same is true of salaries and expenses connected with the Department of L.abor; the Board of Agriculture and the Fruit Experiment Station; in each case the expense of maintaining each one of these departments, which is paid out of the State Treasury, is in excess of the fees received from them respectively.

“The amount of the salaries, wages and expenses of the State Auditors’ Examiners, which were paid by the State, was substantially the same as the moneys paid into the State Treasury on account of the services of said examiners.

“The one hundred and twenty-five thousand dollar ($125,000) item, numbered 32 in this statement, ‘Transferred from Insurance Department Fund,’ was so transferred by virtue of section 55a, an act with the heading: ‘Appropriations; contingent and incidental expenses for the years 1915 and 1916,’ approved April 2, 1915, Laws 1915, p. 20.

“The Attorney-General wrote to the respondent, the State Auditor, the opinions set out in the return of the respondent.

“It is agreed that, prior to the filing of the petition for an alternative writ of mandamus, demand was made by relator upon respondent for the relief herein sought, and the same was refused; and that the petition shall be considered and taken as amended so as to show such demand and refusal.

“In the cases in which the figures shown in the petition as to the amount of moneys received from any source do not correspond with the figures contained in this agreed statement of facts, the petition is to be considered as amended to correspond to the agreed statement of facts.

“If the court shall be of the opinion that as to moneys derived from some of the sources mentioned in the relator’s petition and claimed by him therein (and not herein waived and abandoned by him), the relator’s, claim as made in his petition to a setting apart and certification to him of a part thereof can-' not be maintained, and shall be of the opinion that as to some of said moneys no part thereof should be set apart or certified by respondent to relator, it is agreed that as to such moneys and the claim, thereof the petition of the relator shall be taken and considered as amended by striking out all claim on account of any said moneys, and the relator hereby asks that his petition be considered and regarded as amended in that respect; so that if the court shall be of the opinion that the relator is entitled to any part of the relief which he asks, he shall not be denied all relief for the reason that he has asked for more than he is entitled to.”

OPINION

''f6Word “Revenue.” While we have not had the benefit of respondent’s views, since regrettably and to the great increase of onr labors, he has not seen fit to fur-us a brief it is apodeictic that the controversy turns upon the construction to be placed upon section 1 of the Act of February 12, 1915, appropriating money out of the State Revenue Fund for the support of the public schools. [Laws 1915,. sec. 1, p. 89.] This section reads thus:

“There is hereby appropriated out of the State Revenue Fund, to be applied to the support of the public schools of the State, one-third of the ordinary revenue paid into the State Treasury for the fiscal years from July 1, 1914, to June 30, 1916,'which amount of said fiscal year apportionment shall be ascertained and set apart to said school moneys by the State Auditor, as is or may hereafter be provided by law.”
It is likewise apparent that the controversy in its last analysis resolves itself into the single question: What is the meaning of the two words ‘ ‘ ordinary revenue,” as these words are used in the Legislative act, supra1
It is fairly clear, we think, that the word “revenue” is modified or limited by the use of the word “ordinary.” The effect of this limitation we will discuss hereafter. Turning to the lexicons, of the language we find that the word “revenue” means: “The annual yield of taxes, excise, customs, duties, rents, etc., which a Nation, State, or municipality collects and receives into the treasury for public use.” [Webster’s Int. Diet.] “The total current income of a government, hoioever derived, subject to appropriation for public uses.” [Standard Diet.] “The annual income of a State derived from the taxation, customs, excise, or other sources and appropriated to the payment of the national expenses.” [Century Diet.]

These definitions have met the approval of the courts, as will be noted by an examination of the below cases: Fletcher v. Oliver, 25 Ark. 289; Bates v. Porter, 74 Cal. 224; United States v. Norton, 91 U. S. 566; State v. School Fund Commrs., 4 Kan. 261; Vansant v. Harlem Stage Co., 59 Md. 330; State ex rel. v. Ewing, 22 Kan. 708; United States v. Bromley, 53 U. S. 88; People’s U. S. Bank v. Goodwin, 162 Fed. 937; In re Magnes Est., 32 Colo. 527.

In the ease of State ex rel. v. Ewing, supra, at page 712, the Supreme Court of Kansas, in an opinion by Judge Brewer, sometime 'judge of the Supreme Court of the United States, said:

“The Act of 1879 is entitled, ‘An act to provide revenue,’ etc. Now how broad is the term ‘revenue,’ and what may be included in such a title? Does it mean simply funds raised by taxation, and is the levying of taxes all that may be included? Such would seem to be -the views of the counsel for the State, but we cannot think them correct. One of the definitions given by Webster of the term is, ‘the annual produce of- taxes, excise, customs, duties, rents, etc., which a Nation or State collects and receives into the treasury for public use.’ The word is broad and general, and includes all public moneys which the State collects and receives, from whatever source-and in whatever manner. The general funds of this State are collected from taxes, but the Legislature might, in an act with such a title — at least, so far as any question of the form of the legislation is concerned — enact that they be collected from licenses, or from the sale of lottery tickets, or it might unite and enact that part might be collected from one source and in one manner, and the rest from another source and in a different manner. ’ ’

In the case of United States v. Bromley, supra, at page 96, the Supreme Court of the United States said:

‘ ‘ That the act which prescribes the offense charged is a revenue law, there would seem to be no doubt. In its title, it is declared to be an act to reduce the rates of postage, and for the ‘prevention of frauds on the revenue of the Post-Office Department.’ In its character • and object it is a revenue law, as it acts upon the rates of postage and increases the revenue by prohibiting and punishing fraudulent acts which lessen it. Under the Act of 1836, the revenue of the Post-Office Department is paid into the Treasury. Revenue is the income of a State, and the revenue. of the Post-Office Department, being raised by a tax on mailable matter conveyed in the mail, and which is disbursed in the public service, is as much a part of the income of the government as moneys collected for duties on imports.”

The various definitions of this word as collated and summarized by Cyc. are as follows:

“The annual product of taxes, excise customs, duties, rents, etc., which a Nation or State collects and receives into the Treasury for public use; the yearly income of a government or a person natural or artificial, from the prbperty belonging to such government or person; the income of the State; the income which a State collects and receives into its Treasury and has appropriated for the payment of its expenses; the product or fruit of taxation; the income of the government arising from taxation, duties and the like; the annual profits of taxes, excise, customs duties, rents, etc., which a Nation or State collects and receives into the Treasury for public use; the income of the State or Nation derived from the duties and taxes and other sources for the payment of the national expenses.” [34 Cyc. 1691.]

Clearly the word “revenue” is broader than and includes taxation, as well as all other sources of municipal income. Revenue may be said to be the genus, while taxation is but a species. We are convinced therefore that the word “revenue,” as used in the ap-' propriation act under discussion, when standing alone, and when not modified by the word “ordinary” (which we shall later discuss, when we come to sum up our conclusions), means: The annual and current income of the State, however derived, which.is subject to appropriation for general public uses. This excludes such income as the Constitution, or any permanent existing law, may specifically devote to a special purpose, in contradistinction to a general public use, or which is not required to be paid into the State Revenue Fund, but into a special fund, e. g., the collateral inheritance tax, specifically collected for the support of the State University and its departments (Sec. 312, R. S. 1909); the money derived from license fees on motor vehicles (Laws 1911, p. 331, sec. 13); fees paid into the State Treasury to the credit of the “Insurance Department Fund” (Sec. 6884, R. S. 1909); and others of- similar soft. Color is lent to this view- not alone by the lexical meaning of the word revenue and by. its construction by respectable and high courts, but by the very language of our Constitution, which enjoins upon the Legislature the making of this appropriation for the support of the public schools, and which reads thus:

“In case the public school fund now provided and set apart by law, for the support of free public schools, shall be insufficient to sustain a free school at least four months in every year in each school district in this State, the General Assembly may provide for such deficiency in accordance ,with section eleven of the article on revenue and taxation; but in no case shall there be set apart less than twenty-five per cent of the State revenue, exclusive of the interest and sinking fund, to be applied annually to the support of the public schools.”

Further'light is cast upon this view by the provisions of section 6 of article 11 of the Constitution, ■which, after naming divers sources from which funds for the support of the public schools of the State should be derived, couples itself by language in pari materia with section 7, supra, by providing, among other things, that certain named funds from the several sources in the section designated, 11 together with so much of the ordinary revenue of the State as may he hy law set apart for that purpose, shall be faithfully appropriated for establishing and maintaining the free public schools,” etc. [Italics ours.] Confessedly, however, when we concede that the expressions used are in pari materia and therefore in a way synonymous, we are met by the doubt whether they each mean “State revenue,” or each mean “ordinary revenue of the State. ’ ’ The latter expression is first used in the article; the -former merely refers back to the latter, logically we may say, for the definition of the words’ “State revenue” as latterly used. So, no comfortable short-cut can with logical consistency, be found in the Constitution. For the Legislature, in nineteen appropriation acts, out of a total of twenty, has used the words ‘ ‘ ordinary State revenue, ” or “ ordinary revenue,” as used in said section 6, instead of the language in section 7 of the Constitution; notwithstanding the last-named section is the one which specifically enjoins upon the Legislature the duty of appropriating as much as one-fourth of the State revenue for the support of the public schools.

From 1877, when for the first time it became the Legislature’s Constitution-enjoined duty to appropriate “at least twenty-five per cent of the State revenue, exclusive of the interest and sinking fund,” to the support of the public schools, till 1887, the Legislature of this State biennially set apart “ one-fourth of the ordinary State revenue paid into the treasury” for the support of the public schools; using in making such appropriation the language we italicise above. [Laws 1877, p. 12; Laws 1879, p. 3; Laws 1881, p. 3; Laws 1883, p. 4; Laws 1885, p. 4.] In 1887 “one-third of the ordinary State revenue” was for the first time appropriated for the support of the public schools of this State. Biennially since, one-third, instead of one-fourth, of the ordinary revenue has been by the Legislatures of this State so set apart. Likewise in the years 1887, 1889 and 1891, the language of the Appropriation Act was “ordinary State revenue.” [Laws 1887, p. 4; Laws 1889, p. 12; Laws 1891, p. 24.] For the first time 'in 1893, and ever since, barring one exception, that of the Act of 1895, below discussed, the words used in maidng this appropriation have been simply “ordinary revenue.V [Laws 1893, p. 19'; Laws 1897, p. 21; Laws 1899, p. 24; Laws 1901, p. 19; Laws 1903, p. 22; Laws 1905, p. 26; Laws 1907, p. 38; Laws 1909, p. 50; Laws 1911, p. 72; Laws 1913, p. 82; Laws 1915; p. 89, already set out verbatim, supra.] In 1895 the Legislature in making this appropriation used the words “one-third of all moneys paid into the State Treasury for the years 1895 and 1896 to the credit of the State Revenue Fund.” [Laws 1895, p. 18.] It is urged that the expression used, to-wit, “one-third of all the moneys paid . . . to the credit of the State Revenue Fund,” is highly significant. We do not so regard it. For the “one-third of all the moneys” is limited by the requirement that such moneys shall be from the “State revenue;” and the question here largely vexing us is, What moneys' of the State are included in the expression “State revenue,” and what is meant thereby? We would grant the contention if the language of the act had been simply “one-third of all the moneys paid into the State Treasury, ’ ’ and had, as it did not, stopped there. But this is not important. At most it is but a straw in the wind, only infinitesimally meet in determining direction.

‘.We .conclude then that both lexically and historically the definition given above of the word “revenue” as used in the statute under discussion, is reasonably correct. But as this word appears both in the appropriation act here confronting us and in the Constitution (Sec. 6, art. 11, Constitution 1875), it is clearly limited by the word “ordinary.” We are not warranted in easting this word out, but must use it and give a meaning to it, if to do so will not defeat the legislative intent, or render the statute and organic law absurd or meaningless. [Strottman v. Railroad, 211 Mo. 227, State ex rel. v. Harter, 188 Mo. 516.]

As words when used by the people in their Constitution, and by the Legislatures in their statutes; are ordinarily to be construed to be used in their ordinary sense (Sec. 8057, R. S. 1909), again recourse must be had to the dictionaries. From these we find the word “ordinary” means in its adjectival use as it occurs in the act before us: “According to established, order; settled, regular.’’ It is a synonym of “normal, common, customary, usual.” Its antonyms are: “Extraordinary, unusual, uncommon.” Taking the two words together, then, as they occur both in ■ our Constitution and in the appropriation act before us, and being guided by both their lexical and legal meanings, as well as the construction urged on us by the necessity for formulating a fixed and general rule, we conclude that the words “ordinary revenue,” as used in said section 6, article 11, of the Constitution and in the act under discussion (Sec. 1, p. 89, Laws 1915), mean: The regular and usual aimual income of the State, however derived, which is subject to appropriation for general public uses.

IY. Keeping this construction of the meaning of “ordinary revenue” before us, there is no mountainous difficulty in deciding the concrete facts here vexing us. The controversy for the most part, we think, becomes fairly plain. The trouble lies in steering a legal, logical and sensible course through the bewildering maze of diverse statutes which created departments of the State, government, the operating of some of which is carried on at a total or partial loss and others of which produce either gross or net incomes to the State, and of formulating a fixed rule of construction, applicable to all these diverse conditions, which will serve to obviate the thick and excusable uncertainty heretofore and now prevailing.

If we should grant that as a matter of law, the words “ordinary revenue” are ambiguous — a thing we cannot bring ourselves to concede — we could, if the above conditions presented all of the facts and showed all of the difficulties, very readily (if there were not other and additional items in dispute) and speedily settle this case by invoking the well-recognized rule of statutory construction, that the meaning put upon the words of these many similar appropriation acts by the executive officers of the State upon whom the duty of interpretation falls, is of great weight, and absent other qualifying considerations, decisive (Schawacker v. McLaughlin, 139 Mo. 333; Darling v. Potts, 118 Mo. 506; Ross v. Railroad, 111 Mo. 18; Barber Asphalt Paving Co. v. Meservey, 103 Mo. App. 186); especially when coupled with the passive acquiescence of the Legislature for almost forty years. But othe^ items, to-wit, those numbered 18, 21, 22, 23, 24, 28, 29, 30, 32, 33, 34 and 35, are likewise in dispute here. As to these items we gather from the record and judicially notice from the public biennial reports of the State Auditor there has been no uniform practice in the office of the State Auditor. Some years some of these items last above were included,’ and in other years they, or some of them formerly taken into account, were omitted, and others of them used. So great was the doubt and uncertainty in this behalf existing that it caused the discrepancy to be pointed out by a special legislative committee having in charge the examination of the various State offices.

In the light of this latter condition we cannot say that executive interpretation, long acquiesced in by the Legislature, aids us; for the very simple reason that there has been no uniformity in interpretation by such executive officers, and conduct seeming to be legislative acquiescence is found to be passive non-interference with changing methods wholly lacking uniformity. It is plain then that we are not aided and cannot be aided by invoking any rule of construction made for us by executive interpretation through ,a long course of years.

Y. It appears' from the record that moneys accruing from items numbered 1, 2, 3 and 4, to-wit:

1. From county collectors (tax on real and personal property);

2. County foreign insurance tax;

3. Private car tax;

4. Express companies’ tax;

aggregating $4,271,232.36, are not in dispute; that in pursuance of a uniform custom, the respondent, as both he and his predecessors in office have apvayS ¿lone, set apart and certified on July 3, 1915, for the use of the public schools, the sum of $1,423,744.12. So with these items, since there is no dispute here about them or about this sum, and since we think the course taken as to them is undoubtedly correct, we need not concern ourselves further.

Items numbered 19, 20, 25, 26, 27 and 31, to-wit:

19. Receipts from old bond and coupon account;

20. Receipts from amounts refunded;

25. Receipts from insurance on Federal Soldiers’ Home;

26. Receipts from sale of old furniture;

27. Receipts from itinerant vendors’ licenses;

31. Receipts from Fish Commissioner’s Refund; are abandoned by relator. He concedes that tbe public schools are not, under the terms of the act under discussion, entitled to one-third of any of the items last above. Therefore we dismiss them from our discussion.

Items numbered 5 to 17, both inclusive, to-wit:

5. Notaries’ commissions.

6. Land Department fees.

7. Fees earned in office of State Auditor.

8. Fees earned by office of Secretary of State.

9. Incorporation tax.

10. Fees from Excise Commissioner of city of St. Louis.

11. Proceeds of sale of beer stamps.

12. Interest received from State depositaries.

13. Sale of oil stamps.

14. Interest on deposit of fees by St. Louis Excise Commissioner.

15. ' Interest on deposit of Fish Commission.

16. Excess fees from cleric of Supreme Court, cleric of St. Louis Court of Appeals, cleric of Springfield Court of Appeals, cleric of Kansas City Court of Appeals.

17. Fees collected by Excise Commissioners of St. Louis county.

are, however, in dispute here. The agreed case as to them shows that both respondent and his predecessors in the office of State Auditor have for many years uniformly, until this year, set apart one-third of all State income arising from each of the last above several items, under authority conferred by appropriation acts couched in precisely similar verbiage to that here under discussion.

Items numbered 18, 21, 22, 23-, 24, 28, 29, 30, 32, 33, 34 and 35, to-wit: •

18. Receipts from sale of laws.

21. Receipts from fines assessed against lumber companies for violations of Anti-Trust Act.

’22. Receipts from fees of Poultry Experiment Station.

23. Receipts from fees of Warehouse and Grain Department.

24. Moneys earned by State Auditors’ Examiners.

28. Receipts from fees of Bureau of Labor.

29. Receipts from fees of Board of Agriculture.

30. Receipts from fees of Fruit Experiment Station.

32. Transferred from Insurance Department fund.

33. Transferred from Factory Inspection fund.

34. Transferred from Text-Book Fund.

35. Receipts from fees of Public Service Commission. are likewise in dispute. None of said items last above has been uniformly taken into account in setting apart moneys from general revenue for the support of public schools by either respondent or any of his predecessors. Thus stands the controversy, and so we come to consider specific matters and funds in dispute.

The question whether “ordinary revenue” includes the whole of the $127,123.37 of gross earnings of the office of Warehouse Commissioners, or whether it includes only the net earn-(the sum of $30,631.95) of such office after deducting aggregate sums paid out of the State Treasury for salaries and contingent expenses for upkeep, presents much difficulty. No consistent course has been pursued by the Legislature in dealing with this department. This makes it well nigh impossible for us to deduce a consistent rule touching the fees of this department. In 1913 the whole of article 2 of chapter 60, Revised Statutes 1909, which provided theretofore for the inspection of hay and grain, was repealed and a new act in toto was passed (Laws 1913, pp. 354-373), which of course, is now the law. That this department was not intended to be an earner of profits, but merely to pay its own way, appears conclusively from the terms of the act itself, which provides that the charges fixed by the Warehouse Commissioner for services rendered “shall be regulated in such manner as will, in the judgment of the commissioner, produce sufficient revenue to meet the necessary expenses of the service of inspection and no more.” [Sec. 41, p. 367, Laws 1913.] This viewi is accentuated by the language of the section of the act appropriating money for the support of this department for the years 1913 and 1914 (the earning for six months of which latter year are here in controversy).. After setting out the amounts appropriated, it is further provided in the act “that no more [money] shall be drawn against the appropriation than has been paid into the treasury by said department, the intention being that the above-named department shall support itself out of its fees made and turned into the treasury.” [Laws 1913, p. 9, sec. 12b.] While there is no such condition specifically attached to the appropriation for this department for the years 1915 and 1916, so far as we have been able to find, yet the condition set out in the Act of 1913, in intent, only follows the terms of the act creating the department. [Sec. 41, Laws 1913, p. 367, supra.] Therefore, while conceding that by reason of the inconsistence of treatment of this department by the Legislature, we are unable to bring it strictly within the definition we formulate, we conclude that only the net sum, after deducting operating expenses, should be here taken into account. So much only can we gather of the intent of the Legislature from its acts. If the intent be otherwise, the language next used by the Legislature can clarify the point beyond dispute. Indeed, here for a period of six months, the case falls exactly within our rule. We are unable from the facts before us to segregate the earnings of this period from those of the other six months in controversy. For these reasons we take into account from this item, the sum of $30,631.95 only, same being net revenue left after the payment of all operating expenses.

The general, rule by which departments like the above are to be measured, would seem to be that: Whenever a statute creating a depart-' ™-ent of government of this' State provides (or whenever an appropriation for the support of a department of government contains such a proviso) that the cost of operation shall be defrayed wholly from fees earned by such department and not otherwise, then clearly the State is, as to an amount equal to the cost of upkeep, a trustee merely of the moneys paid in, and the State’s general revenue fund in entitled only to the surplus paid in to the State Treasury after deducting expenses of the operation of such department. For strictly speaking, in such case the appropriation is not made out of the general revenue of the State, but out of the earnings of the department. By the very terms of the attached condition, the officers would not be paid in full, or at all if no fees were earned (e. g., Hay and Grain Inspection Department, Laws 1913, p. 367, sec. 41, Laws 1913, p. 9, sec. 12b; Text-Book Filing Fund, sec. 10955, R. S. 1909). So to all such the term “revenue” means net revenue. This in fact is the present rule by statute as to the fees of the clerk of this court and likewise as to the fees of the clerks of the several Courts of Appeals.

As to other departments and the earnings thereof, when payment of operating expenses is in no wise conditioned upon earnings, and which earnings go directly by express statute into the State Treasury, the gross sum of earnings is to be considered ordinary revenue, e. g\, earnings of the Public Service Commission; earnings of the Secretary of State (sec. 10718, R. S. 1909); earnings of the State Auditor (sec. 1276, R. S. 1909), etc. This for the reason that the statutes provide for the payment of the expenses of all of these departments whether they-earn fees or not, and because all of such fees earned by the former (Laws 1913, p. 567, sec. 21) as well as those earned by the two latter, are by statutes required to be paid into the State Treasury (secs. 10716, 10717, 10718, R. S. 1909) to the credit of the revenue fund. depositaries, is to be considered as “ordinary revenue” within the purview of the appropriation act under discussion, and in the light

It is patent that interest accruing to the State from moneys deposited in banks, or other State of our construction of the words “ordinary revenue,” supra, save and'except in such cases (if such there be) wherein the interest accrues from a special.fund, and by express provision of law is required to be expended for the identical purpose of the special fund, from which it accrued. [Cf. Act. of March 24, 1911, sec. 10, p. 114, Laws 1911.]

From the rules which we are • impelled to formulate from our view of the law, we are of opinion that the fines assessed against the Arkansas Lumber Co. and others in the suit of State ex inf. v. Arkansas Lumber Co., 260 Mo. 212, are not to be taken into account but wholly excluded. (Such fines have never been taken into account heretofore in this behalf by any State Auditor.) This, for the reason that while it is undoubtedly revenue, it is not ordinary revenue, because it is not annual or current, but wholly adventitious and in the nature of a “windfall,” if we may use an horticultural expression.

Likewise item 32, the same being the moneys which have been intermittently, for some years prior, and which were, by act of the last Legis¡ature, transferred from the “Insurance Department Fund” to the general revenue fund, is not to be taken into account. This for the reasons that these moneys are not annual, or current revenue; and because they are required to be paid into a special fund (Sec. 6884, R. S. 1909) and because only the “overflow” from this fund reaches the State revenue fund, and then only pursuant to an express mid special act passed, ordinarily, biennially, transferring a portion of such fund to State revenue. [Laws 1915, sec. 55a, p. 20; Laws 1913, sec. 79, p. 30.] We say “ordinarily biennially,” for the reason that we have been unable to find any general statute making such transfer mandatory upon each or any Legislature, and note that no such transfer was made in 1905, or in 1895. This item has never been included heretofore.

Neither the gross income, nor the net income, from the Factory Inspection Fund should be taken into account, for the reasons: (a) such income, or fees, go into a special fund, viz.: “the Factory Inspection Fund,” and are not annually paid into general revenue; (b) this fund is primarily to be devoted to the payment of the expenses of the Factory Inspection "Department, -and no excess of expense over income of the department can be made up from general state revenue, and (c) the-income to the general revenue fund of the State, if any, is not paid in regular and usual annual payments, but biennially only. [Sec. 7826, R. S. 1909.]

The question of whether the earnings of the examiners appointed by the State Auditor and whose duty it is to examine and audit the books of the several counties and of divers state institutions, in the act more specifically set out (Laws 1913, pp. 765 et seq.), presents much of difficulty. Clearly this branch of the Treasury Department is not designed to be an earner of revenue; neither lias it earned any, for the agreed facts show that the income therefrom in the biennial period here under discussion was substantially equal to the expense thereof. Pertinent parts of the statute creating this department provide thus:

“The examiner making such examination shall make out his account under oath and forward same in duplicate to the State Auditor, one copy of which shall be filed in the office of the State Auditor and the other forwarded by the State Auditor to the county court of said county or the proper officers of the city of St. Louis, who shall draw a warrant at their first meeting in payment of same and remit said amount to the examiner making the examination, addressed to Jefferson City, Mo., in care of the State Auditor: Provided, that any of the regularly appointed examiners whose time is spent in the auditing of accounts of any county and receives a per diem of $7.50 for same, the amount so received from the county shall be deducted from the $2,000 authorized by this act to be paid to Mm from the public treasury, in order that in no case shall an examiner’s salary be in excess of $2000; and provided further, that whenever the per diem of any regular examiner exceeds the amount of $2000, the salary allowed him by this act, the excess, if there be any, shall be paid into the State Treasury to the credit of the State Revenue Fund. ’ ’ [Laws 1913, p. 767, sec. 5.]

In substantial accordance with the rules of construction which we have reached and laid down, we hold that this item should not be taken into account in this action, but net income therefrom, if any such there may hereafter be, should be included.

It follows, then, that all of the items 5 to 17, to-wit:

5. Notaries’ commissions;

6. Land department fees;

7. Fees earned in office of State Auditor;

8. Fees earned by office of Secretary of State;

9. Incorporation tax;

10. Fees from Excise Commissioner of city of St. Louis;

11. Proceeds of sale of beer stamps;

12. Interest received from State depositaries;

13. Sale of oil stamps;

14. Interest on deposit of fees by St. Louis Excise Commissioner;

15. Interest on deposit of Fish Commission;

16. Excess fees from clerk of Supreme Court, clerk -of St. Louis Court of Appeals, clerk of Springfield Court of Appeals, clerk of Kansas City Court of Appeals;

17. Fees collected by Excise Commissioners of St. Louis county;

both inclusive, are to be taken into account and included in “ordinary revenue” within the purview of the statute in dispute; for the reasons that said items 5, 6, 7, 8, 9, 10, 11, 13, 16 and 17 are clearly “regular and usual annual income of the State . . . which is subject to appropriation for general public purposes.” Moneys are derived from these several items every year. These several sums are paid into the general treasury of the State for the revenue fund, pursuant to general laws, and subject to no restrictions limiting their application; items 12, 14 and 15, supra, because they each represent interest paid upon deposits of State moneys, absent a statute requiring such interest to follow in use a specifically restricted principal.

That items 18, 22, 28, 29, 30 and 35, to-wit:

18. Receipts from sale of laws; •

22. Receipts from fees of Poultry Experiment Station;

28. Receipts from fees of Bureau of Labor;

29. Receipts from fees of Board of Agriculture;

30. Receipts from fees of Fruit Experiment Station;

35. Receipts from fees of Public Service Commission;

and the net income of fees from items 23 and 34, to-wit, the Warehouse and Grain Inspection Department, and the Text-Book Filing Fund, are likewise to be so included. What we say -last above forms, we think, a sufficient reason for so including items 18, 22, 28, 29, 30 and 35. Our views and reason for excluding the gross income, but for including the net income, of the last above several items numbered 23 and 34 have been herein before set out at length.

All other items in dispute, since they do not fall within the purview of the definitions and conclusions reached by us and discussed either specifically or generally hereinabove, are to be excluded. While on first blush an apparently though not really arbitrary rule may seem to be invoked as to such items as come into the general revenue fund of the State biennially only (e. g., Factory Inspection Fund), or biennially, but intermittently, and by virtue of an express special act (e. g., transfer from Insurance Department Fund), or occasionally and adventitiously (e. g., fines accruing from prosecutions of lumber companies, State ex inf. v. Arkansas Lumber Co. et al., 260’ Mo. 212), yet upon more careful thought and consideration it will be seen that a crying necessity exists for a general rule to use in setting apart this fund, which will forever dissipate the dark obscurity which has heretofore befogged it, and that no such rule can be logically formulated, which will serve to measure all cases, if these items are to be included. This is the administrative difficulty; if it be wrongly resolved a word from the Legislature can cor- ' reet it. Besides, it may well be that these rules which we have formulated as the only consistent interpretation of the legislative intent derivable from the language of the appropriation act under discussion, will serve to obviate fat and lean years in public school revenues, and that it was so intended. That those in charge of such schools may confidently- rely upon a fairly fixed and stable income, and that they may not be induced to lavish and waste funds this year and be forced to a too lean and scrimping economy next year, is a desideratum to be wished for. The conclusions here reached bring this to pass and are yet, we think, in line with the law both here and elsewhere. The rule allows full latitp.de for a growth of the State, a condition fully demonstrated by the fact that the amount below set apart from State revenues for the support of the public school system exceeds by many thousands of dollars any appropriation for any one year ever before so devoted, from this source.

Amending the petition (which by stipulation stands as and for the alternative writ, issuance of which was waived), as provided by the agreed facts, we eliminate all items except as last above enumerated and found to be within the purview of the appropriation act and award the writ as to such items.

It is therefore our order that our peremptory writ go for the sum of $334,189.31, being the aggregate of the one-third part of the items aforesaid, and making, with the snm already set apart and certified by respondent for the nse of the public schools for the fiscal year 1915, a grand total of $1,757,933.43-. Let our peremptory writ so issue.

All concur.


author: REVELLE, J.

text:
    THE STATE ex rel. SOUTHERN NATIONAL BANK OF KANSAS CITY v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    December 22, 1915.
    1. PRACTICE: Motion to Dismiss: Equal to Demurrer. The legal character of a pleading is to he determined by its substance, and not by its nqme. A motion to strike out or to dismiss may fill the office of a demurrer, and be so treated, where it is, to all intents and purposes, a demurrer, and dispositive of the whole case, as a matter of law.
    2. -: -: Evidence: Appeal: No Motion for New Trial. Where one ground of a motion to dismiss as to movents was that the record shows on its face that if plaintiff ever had a right to establish a mechanic’s lien on their property such right had expired, and that part of the motion only is sustained, and an appeal is taken by plaintiff from that judgment to the Court of Appeals, that court, having otherwise appellate jurisdiction in the matter, cannot refuse to consider the point raised by the motion upon the ground that it required a motion for new trial to preserve the point for review. No motion for a new trial was necessary, nor did a proper determination of the point put in issue require an examination of the evidence, nor was evidence necessary or even proper. Things appearing on the face of the record conclusively speak for themselves.
    3. -: -: -: -: -: Other Grounds of Motion. Nor does the fact that the motion to dismiss contained other grounds, which could be sustained only by evidence, and that evidence was offered in support of them, and they were not sustained, alter the right of the plaintiff on appeal, without any motion for a new trial filed in the trial court, to have that part of the motion charging that the amended petition showed on its face that plaintiff’s right to a mechanic’s lien had expired, and which was separately sustained, considered by the appellate court — not even though movents had done the useless thing of supporting the point by evidence.
    4. -: -: Grounds Assigned. On appeal the court must presume that the trial court sustained a motion to dismiss on the ground specifically assigned by it — in this case, that a motion to dismiss is sustained on -the “first ground” assigned in that motion, which was that the petition showed on its face that the right to a mechanic’s lien sought by it had expired.
    5. -: -: Where No Ground Is Assigned. Where the motion to dismiss assigns several grounds, one of which is to the effect that the petition shows on its face that the action is barred, and others which call for evidence to establish them, and the motion is sustained without any assignment of the ground therefor, then on appeal by plaintiff he cannot rely solely upon the disclosures of the record proper, because, as long as the motion went both to the record proper and matters of exception, the appellate court will indulge the presumption that the trial court decided correctly, if not upon the disclosures of the record proper, then upon the matters of exception alleged in the motion, there being no motion for a new trial and hence no evidence preserved for review. But where the trial court sustains the motion on the specific ground that the record shows on its face that the action is barred, then that point is for consideration in the appellate court, without any motion for a new trial.

      Certiorari.

    Judgment quashed.

      Ellis, Cook & Barnett for relator.
    (1) The reinstatement of the case as to the defendants McDermand at the same term of court at which it had been dismissed put the case back precisely where it was before the order of dismissal was made. Brown v. Foote, 55 Mo. 178; 14 Cyc. 460, 465; Miller y. Earl, 15 S. W. 916; Crane Co. v. Hawley, Keragham & Co., 54 Mo. App. 603; West v. McMullen, 112 Mo. 409;' State to use v. Kessler, 15 Mo. App. 590; Salt Co. v. Baldridge, 53 Kan. 532; Wolters v. Rossi, 126 Cal. 644; Zitnick v. Railroad, 145 N. W. 344; Duty v. Railroad, 73 S. E. 331. (2) The expiration of the term of court at which the order was made requiring an amendment of the plaintiff’s petition, did not, even though no such amendment was made during the term, affect a judgment in favor of the defendants McDermand. Robinson v. County Court, 32 Mo. 428; Berry v. Zimmerman, 43 Mo. 215; Plattsburg v. Allen, 84 Mo. App. 432; Ruch v. Jones, 33 Mo. 393; Louthan v.' Caldwell, 52 Mo. 121; Cooney v. Murdock, 54 Mo. 349; Briggs v. Block, 18 Mo. 281; Davis v. Carp, 139 Mo. App. 650. (3) The reinstatement of the case and the order permitting plaintiff to file its amended petition out of time were matters within the sound discretion of the court. 14 Cyc. 460; Crane v. Hawley, Keraghan & Go., 54 Mo. App. 603; Cooney v. Murdock, 54 Mo. 349; Davis v. Carp, 139 Mo. App. 650, 1. c. 654; State v. Bird, 22 Mo. 470; Phillips v. Ayerck, 84 Ga. 725; Combs v. Steele, 80 111. 101; Chichester v. Hastie, 9 S. C. 330; Gunners ell v. Boyle, 7 Mo. App. 579; Chinn v. Pretches, 42 Kan. 316; Emmerich v. ITefferson, 97 N. Y. 619.

      Robinson <& Goodrich for respondents.
    (1) Relator is not entitled to the relief sought. The Supreme Coutt can consider only the statements contained, in the opinion of the Court of Appeals as to the evidence, facts or pleadings in the cause, and cannot look beyond such recitals for any further ground to quash the judgment of the Court of Appeals. State ex rel. Reynolds, 257 Mo. 19; State ex rel. v. Ellison, 263 Mo. 509. (2) The motion to dismiss was not a part of the record proper, and the ruling thereon is not preserved for review unless by ground lodged in a motion for a new trial and by timely exceptions. Tarkio v. Clark, 186 Mo. 293; Shohoney v. Railroad, 231 Mo. 152; Hodson v. McAnemey, 167 Mo. App. 468; Godfrey v. Godfrey, 228 Mo. 513; Silberberg v. Gitenstein, 168 Mo. App. 399. (3) The opinion of the Kansas City Court of Appeals is in accord and harmony with all of the controlling decisions of the Supreme Court. (4) Even conceding, which we do not, that the first two grounds of the motion to dismiss were based upon the record alone, it cannot be contended that the third ground did not require evidence to support it. (5) Part of the testimony offered in support of the motion to dismiss consisted of amended pleadings. When a pleading is amended by filing a new pleading, its functions are at an end. It is no part of the record as evidence because originally filed as a pleading, and cannot be used unless offered in evidence. Machine Co. v. Pierce, 5 Mo. App. 576; Ingwerson v. Railroad, 250 Mo. 335; Anderson v. McPike, 86 Mo. 293; Railroad v. Bank, 212 Mo. 517; Forrister v. Sullivan, 231 Mo. 345>, 352. (6) Exhibits attached to a petition are no part of it. Part of the testimony o'ffered in support of the grounds for the motion consisted of exhibits to abandoned and pending petitions. Hanks v. ITanks, 218 Mo. 670. (7) It is the correctness of the ruling of the trial court, and not the reason for it, that the appellate court is called upon to review. State ex rel. v. Thomas, 245 Mo. 75.
   REVELLE, J.

Original proceeding by certiorari to quash judgment of the Kansas City Court of Appeals, the relator alleging that it runs afoul of controlling decisions of this court.

The facts stated by the Couit of Appeals in its opinion are substantially as follows:

Plaintiff filed its suit April 8, 1913, to enforce a mechanic’s lien for certain materials, of the total value of $1276, furnished under contract with the defendant construction company for a building being erected by the latter company for the defendants Frank R. and Myrtle A. McDermand, on certain lots in Kansas City owned by tliem. On May 12, 1913, the McDermands filed a motion to make tlie petition more definite and certain, and this was by the court sustained, November 29, 1913. January 9, 1914, relator filed an amended petition, and on February 9th the McDermands filed their motion to strike this out, and to dismiss the suit as to them. This motion was sustained, and two days thereafter relator filed a motion to* set aside the order of dismissal and to reinstate the action against the McDermands, which the court heard and sustained, April 22nd. On April 25th the McDermands filed a motion that the cause be dismissed as to them upon the following grounds:

“(1) Because the record shows on its face that if plaintiff ever had any right to establish and enforce a mechanic’s lien upon property of said- two defendants or either of them, such right, if any, had expired, and this court was without jurisdiction to establish or enforce said lien, at the time when the last amended petition in said action as against said two defendants was filed on, to-wit, the 22nd, day of April, A. D. 1914; and that said court is without jurisdiction to establish or enforce a mechanic’s lien on property of said two defendants or either of them in said action. '
“(2) Because the record shows on its face that plaintiff has not sued the person or persons who, if anybody, contracted and owed the debt on the account filed as the foundation for the right of action in said suit, and as the basis of the alleged claim for a mechanic’s lien on the real estate and buildings alleged in the original petition and amended petitions to be owned by said Frank R. McDermand and Myrtle A. McDermand and to be subject to said claim for a mechanic’s lien sought to be established and enforced thereon.
“(3) Because J. B. Neevel and R. B. Neevel, co-partners, doing business under and by tbe partnership firm name and style of J. B. Neevel & Sons Construction Company, have not been made defendants in this action and this court is and ever was without jurisdiction to establish and enforce a mechanic’s lien herein without them.”

Upon a hearing of this motion the court entered the following order in relation thereto:

“Now on this day the court, having heretofore taken defendants’ . . . motion to dismiss as to themselves under advisement, does now sustain said motion as to the first ground, to which plaintiff objects and excepts.”

At a later date, to-wit, June 25th, the court made the following order:

“The plaintiff submits evidence of indebtedness of defendant J. B. Neevel & Sons Construction Company to the plaintiff herein, and said cause having heretofore been dismissed by the court as to defendants Frank R. McDermand and Myrtle A. McDermand, the court declines to hear evidence touching a mechanic’s- lien on the property involved, to which ruling of the court in favor of defendants the. plaintiff excepts. . . . And it is further considered and adjudged by the court that said action having been heretofore dismissed by the court on the 13th day of June, 1914, as to the defendants Frank R. McDermand and Myrtle A. McDermand, upon their motion, plantiff recover nothing of defendants Frank R. McDermand and Myrtle A. McDermand, and have no lien upon the property of said Frank R. McDermand and Myrtle A. McDermand, herein involved, and that the said Frank R. McDermand and Myrtle A. McDermand go hence without day and have judgment against the plaintiff herein for their costs herein expended.”

Relator appealed from this judgment to the Kansas City Court of Appeals, without first having filed a motion for new trial, but, in due time, filed its bill of exceptions. Because of relator’s failure to file a motion for new trial tbe Court of Appeals held that its inquiry could not be extended to any matter of exception. Of this ruling relator makes no serious complaint, and did not invoke our writ because thereof. The court went further, however, and held that because the motion to dismiss raised issues of fact, as well as of law, and required evidence to support parts of it, it could not be treated as the legal equivalent of a demurrer, and could, therefore, not be held to preserve itself without the aid of a bill of exceptions and motion for new trial; and for this reason it declined to' review the ruling on the motion to dismiss.

The sole proposition upon which our decision is legitimately invoked is the ruling of the Court of Appeals that the so-called motion to dismiss, upon which final judgment was entered, was not in legal effect a demurrer, and that the ruling of the trial court thereon could not be reviewed, because not preserved by motion for new trial.

The court announces the general and uniformly accepted doctrine that the legal character of a pleading is to be determined by its substance, and not name, and that a motion to strike out or to dismiss may fill the office of a demurrer, and be so treated, where it is, to all intents and purposes, á demurrer, and is dis-positive of the whole case as a matter of law; but, anent its ' application to the instant case, says: “Where, as in the present case, it raises issues of fact, as well as of law, and requires evidence to support it, there is no good ground upon which it will be treated as the legal equivalent of a demurrer, and it could not be held to preserve itself without the aid of a bill of exceptions or a motion for new trial. ’ ’ For the reasons last stated the court held that the ruling sustaming the motion was not before it for review, and declined to pass upon other questions, which it is alleged the record presented, such as the legal effect of the first dismissal and reinstatement of the ease, whether the former orders, entries and pleadings were a part of the record proper in the case, and whether a court will take judicial notice of all proceedings before it in the same litigation and of the status of the case as shown by its own record, or whether it is necessary to prove such matters.

It is unnecessary in this case for us to examine any part of the record beyond the opinion of the court. This discloses that the motion was sustained by the trial court solely as to the first ground, and this ground was “ ‘because the record shows on its face’ that if plaintiff ever had any right to establish and enforce a mechanic’s lien, such lien, if any, had expired, and this court was without jurisdiction to establish or enforce said lien at the time when the last amended petition was filed on the 22nd day of April, 1914, and that this court is without jurisdiction to establish or enforce the mechanic’s lien.” Had the motion stopped with this,, there could be no doubt as to its legal character, because, regardless of its title, the legal effect and purpose thereof was that of a demurrer, and no exception, motion for new trial or bill of exceptions would be necessary to warrant a review of the ruling thereon. It is well established in this State that a pleading stating no cause of action or defense is open to a motion to strike out, as well as to what is commonly called a demurrer, and that a demurrer, not waived by pleading over, preserves itself, without the aid of a bill of exceptions or motion for new trial. It is equally well established that a motion to strike out or to dismiss, which fills the office of a demurrer, must be judged by the rules pertaining to demurrers. [Shohoney v. Railroad, 231 Mo. l. c. 148, and numerous cases there cited.]

No evidence in relation to tlie first paragraph of the motion was necessary, or even proper, because things appearing on the face of the record of a case conclusively speak for themselves. If, under the averments of this paragraph, defendants offered as evidence matters which properly and lawfully were the record in the case they did a useless and ineffectual thing, as a court takes judicial notice of such matters; and if they offered, and the court received, evidence of things which did not appear on the face of the record, they went beyond the scope of this part of their motion, and unwarrantedly broadened the issue which it tendered. By neither of these acts could defendants change the legal nature of their plea or the fixed rules of law in relation thereto. For the purpose of the first ground defendants planted themselves squarely upon what appeared from the face of the record, and plaintiff had a right to rely upon this issue without preparing to meet another. Now, does the fact that there was another g’round set out in the motion, which required evidence in its support, but which was not sustained, change the legal character, effect and purpose of the former? We think not. We are told in briefs that the trial court heard evidence, and in this it was warranted, in relation to the third ground, but the record tells us that it was not upon the evidence offered, but the disclosures of the record, that the motion was sustained, the ground requiring evidence not being upheld. We must indulge the presumption that the trial court sustained the motion for the reasons and upon the ground it specifically assigned, and that in reaching its conclusion thereon it considered nothing except that which it was authorized to consider. In this we are but giving effect to the ‘ ‘ salutary presumption indulged in favor of the correctness of the rulings” of circuit courts. [Millar v. Madison Car Co., 130 Mo. l. c. 523.]

Had the court not specified that it dismissed this cause because of what appeared upon the face of the record, the case would be different, and this for two reasons: (1) In that event appellant would have had no right to rely solely upon the' disclosures of the record proper in preparing his case for appellate review; and (2) because as long as the motion went both to the record proper and matters of exception, appellate courts would indulge the presumption that- the trial court had decided correctly, if not upon the disclosures of the record, then upon the matter of exception alleged in the motion, and which had not been preserved for review. So far, at least, as determining relator’s prima-facie case of error, it is our opinion that the correctness or incorrectness of the trial court’s ruling on the motion to dismiss must depend upon what the face of the lawful record of the case discloses, and that such matters were preserved for review, without the aid of a motion for new trial.

Cases have been cited by respondents in which this court has held that in appeals from an order granting a new trial, and in which the trial court stated the ground for its action, this court would sustain the order if it found that any assignment in the motion was good, even though it concluded that the reason stated by the trial court was not well taken. But in all such cases this court has further held that the appellant assumes the burden of showing error only as to the ground upon which the court acted, and as to the other grounds of the motion the presumption will be indulged that the action of the trial court in not sustaining them was right until respondent shows the contrary. [Bradley v. Reppell, 133 Mo. 545; Ittner v. Hughes, 133 Mo. 679; State ex rel. v. Thomas, 245 Mo. l. c. 73-4.] Neither are we unmindful that in State ex rel. v. Thomas, supra, this court held that an appellant cannot single out in preparing the bill of exeeptions only such matters as relate to the reasons given by the trial court for granting the new trial, but should embody in his bill all matters of exception relating to other assignments in the motion. In that same ease, however, the court distinguishes between one of this character and an appeal from an order granting a new trial. In this connection the court said: “There is a difference in this respect between an appeal from a final judgment and from an order granting a new trial. In the former if prejudicial error appears the judgment cannot stand, regardless of the record as to other alleged errors, while in the latter the appeal is from one ruling to which there is but one exception, and if that ruling is right upon any one of the grounds upon which it was asked, it should not be reversed.” And we might add that with the former the aggrieved party is having- his last day in court, while in the latter the doors are-open to another trial and appellate review. In this case' the appellant appeals from a final judgment and if the legitimate record of the case discloses error therein it should not be permitted to stand, regardless of other things which might appear, but which do not. Could it in this or in any other case, be held that if the lawful and constituent parts of the whole record proper showed prejudicial error in the judgment the same should stand on appeal? The question answers itself. Error standing boldly out defies law and order and proclaims justice a travesty, and should not go uncorrected.

It is not our province to determine how the Court of Appeals' shall decide the various questions involved in this record, but we do hold that the ruling of the trial court dismissing the case as to the McDermands should be reviewed by the Court of Appeals upon the disclosures of the whole record proper, including all such record matters of which judicial notice is required to be taken. In holding to the contrary the Court of Appeals failed to follow, among others, the following decisions of this court: Burrows v. McManus, 249 Mo. 555; Knisely v. Leathe, 256 Mo. l. c. 358; Austin v. Boring, 63 Mo. l. c. 21; Bateson v. Clark, 37 Mo. l. c. 34; Jones v. Manly, 58 Mo. l. c. 563; cases cited in Shohoney v. Railroad, 231 Mo. l. c. 148-152; Pelz v. Bollinger, 180 Mo. 252; and State ex rel. v. Ulrich, 110 Mo. 350, and cases heretofore cited. The point upon which the motion was sustained went to the very vitals, to the whole, and not a mere part, of the pleading, and in such cases this court has held the ruling thereon reviewable without a motion for new trial or bill of exceptions.

Neither is it necessary or proper for us to decide whether the bill of exceptions filed by appellant, but unavailable to it, because not aided by its motion for new trial, is available to respondents for the purpose of pointing out to the Court of Appeals that the motion w;as properly sustainable upon grounds other than that stated by the trial court. We leave this subject to the Court of Appeals, the tribunal of its jurisdiction, and such cases as Ittner v. Plughes, 133 Mo. l. c. 688; Bradley v. Reppell, 153 Mo. l. c. 560, and State ex rel. v. Thomas, 245 Mo. 65.

It follows that the judgment entered by respondents, as Judges of the Kansas City Court of Appeals, in the case of the Southwest National Bank of Kansas City v. Frank R. McDermand and Myrtle A. McDermand, should be quashed and for naught held, to the end that respondents, as such judges, may recall their mandate, if any has issued, and retry said cause upon the appeal filed with them and determine the issues therein presented, in conformity with the law as announced herein and the former decisions of this court. It is so ordered.

Woodson, G. J., and Blair, Faris and Graves, JJ., concur; Walker, J., concurs in result; Bond, J., dissents.