author: WHITE, C. PER CURIAM:

text:
    THE STATE ex rel. BUCHANAN COUNTY v. AMBROSE PATTON et al., Appellants.
    Division Two,
    July 16, 1917.
    1. RES ADJTTDICATA: Same Legal Right Involved. A former judgment is conclusive in a second suit between tbe same parties where the same legal right as that involved in the former suit comes again in issue, although the second suit is upon a different cause of action.
    2. -: -: What Are Different Parties. If the party pleading the former judgment in his favor as an estoppel and the party against .whom it is pleaded, were both parties to the former action, the plea of res adjudieata will still be available, although additional parties are made defendants.

      3. -: -: Suit Against Circuit Clerk for Excessive Fees. If in both suits the issue was whether the defendant was entitled to a salary of $2000 a year as clerk of the criminal court in addition to $2000 he received as salary as clerk of the circuit court of the same county, and the cause of action in the first suit involved his salary for the same term, though for a different part of that term, a judgment for him in that case was res adjudicata of the issue in the second suit and operates as an estoppel in his favor, although in the first he was the only defendant, and in the second he and his bondsmen are made defendants.
    4. FEES RETAINED FOR DEPUTIES: Clerk of Circuit and Criminal Court. The clerk of the circuit court of Buchanan County who was also clerk of the criminal court in said county was not entitled in the year 1910 to retain sums paid deputies or assistants employed in the criminal court in addition to the amount allowed by law for such help in the circuit court. The largest amount he could retain that year for the hire of all deputies and assistants was $5800.
    Appeal from Buchanan Circuit Court. — Hon. W. C. Ellison, Special Judge.
    Reversed and remanded (with directions).

      Charles F. Strop and Graham £ Silverman for appellants.
    (1) The judgment rendered in the former suit between the same parties was a complete bar and estoppel to a subsequent litigation of the same question in this case; and the court erred in refusing to apply the doctrines of res adjudicata and estoppel by judgment. Turnverein v. Hagerman, 232 Mo. 693; Driving Park v. Kansas City, 174 Mo. 425; LaRue v. Kempf, 186 Mo. App. 57; New Orleans v. Bank, 167 U. S. 371; Baldwin v. Maryland, 179 U. S. 220; Beloit v. Morgan, 7 Wall. 619; Black on Judgments (2 Ed.), p. 764, par. 504. (2) In the former suit appellant’s right to a salary as clerk of the criminal court was directly adjudicated, and the same question cannot be again subsequently litigated by the same parties or their privies, although the present action involves his compensation for a different year, but the same term of office held by the same person. Authorities cjted supra; also 23 Cyc. 1215, 1218, 1289, 1298, and 1300. (3) Where a judgment determines the title or right under which a party claims, it is decisive^ as to any other property or right claimed under the same title. 23 Cyc. 1292. (4) Where a series of actions are brought on a continuing or recurring cause, an adjudication in the first action on the fundamental state of facts on which they all rest will be conclusive in the rest, precluding inquiry into such ultimate facts or grounds of recovery. 23 Cyc. 1295 and 1186. (5) By, the statute creating the court Patton was entitled to the salary retained by him. Sec. 4194, R. S. 1909. (6) Appellants were entitled to credit for the amounts expended for deputy hire. 'Sec. 10722, R. S. 1909. (7) The judgment upon the'demurrer is as conclusive as though rendered upon hearing’ because the determination of the demurrer involved the life and substance of plaintiff’s cause of action, Johnson v. United Railways, 243 Mo. 290; Insurance Co. v. Smith, 117 Mó. 296; Coleman v. Dalton, 71 Mo. App. 23; Pond v. Huling, 125 Mo. App. 482.

      Oscar D. McDaniel for respondent.
    (1) The judgment rendered in the former suit between respondent and appellant is not a bar or estoppel of the determination of the issues in this case, because the parties are not the same, and the parties in the suit pleaded in bar were not adversary parties, and the object of the two suits are different, and different proofs were required to sustain the two actions. Baumhoff v. Railroad, 205 Mo. 267; Comstock v. Keating, 115 Mo. App. 372. (2) The res in the suit pleaded in bar was the $899.52, and the only thing adjudicated was appellant’s right to that sum of money. (3) Res adjudícala or estoppel by judgment does not apply to abstract propositions of law. 23 Cyc. 1290; State ex rel.' v. Broatch, 94 hi. W. (Neb.) 1106; State ex rel. v. Savage, 91 N. W. (Neb.) 557; Brewster v. Striker, 2 N. T. 19. (4) A judgment or decree rendered by consent of the parties is not res adjudicaba. Wadhams v. Gray, 73 111. 415. (5) Estoppel is not favored in law, and any doubts as to a question being res adjudicaba should be resolved against the party urging the plea. An estoppel can never be allowed, where it would itself perpetrate a fraud, or work injustice. Turnispeed v. Hudson, 50 Miss. 429; Mills v. Graves, 38 111. 455;. Baumhoff v. Railroad, 205 Mo. 1. c. 267; Franklin v. Merida, 35 Cal. 558; Bradford v. Company, 58 Ga. 286. (6) The statute creating the criminal court does not allow appellant' a salary as ex-officio clerk of the criminal court, as contended for by him, and the right to a salary or compensation must be conferred by statute. State ex rel. v. Adams, 172 Mo. 1. (7) Appellants were not entitled to credit for the amounts alleged to have been spent for deputy hire during the year 1910, and for which judgment was rendered in favor of respondent. Sees. 10721, 10722, R. S. 1909.
   WHITE, C.

The suit is brought against the defendant Ambrose Patton, as clerk of the circuit and criminal courts of Buchanan County, Missouri, and his sureties on his official bond, to recover moneys collected by him in his official capacity and retained, it is claimed, in excess of the compensation allowed him by law.

The petition was in four counts, one covering fees collected and retained for the year 1907, one for such fees retained for the year 1908, one for the year 1909, and one for the year 1910.

At the January Term, 1914, of the Buchanan Circuit Court there was a judgment for the defendant on the first, second and third counts of the petition, and a judgment for the plaintiff and against the defendant on the fourth count for the sum of $5349.59, with interest from January 20, 1911, making a total judgment of $6,-248.90. From this judgment the appeal is taken.

■ Patton was clerk of the circuit court of Buchanan County, and also, under section 4194, Revised Statutes 1909, eoo officio clerk of the criminal court of said county; he claimed that he was entitled to a salary of $2000 a year as clerk of the circuit court and the same amount as clerk of the criminal court. He also claimed he was entitled to retain for deputy hire in each court the sum of $5.800, under the provision of Section 10722. For the year 1909 he collected as fees in both courts an amount sufficient to pay his deputies and assistants, his salary of $2000 as clerk of the circuit court, and $899.52 to apply on his salary as clerk of the criminal court.. In 1910 ho collected fees in the criminal court enough to pay himself $2000 salary for that year; $1100.48, the balance of his salary for the previous year; deputy hire amounting to $2250; besides a large balance which he paid to the county. In the circuit court he collected fees in that year to pay his salary of $2000, clerk hire $5800 and an additional sum to pay over to the county.

The amount found against the defendant consists of three items: one item of $1100.48 represented the deficit in the criminal clerk fees collected in 1909 — the amount he retained out of the fees collected the following year to make up his salary of $2000 as clerk’of the criminal court for 1909; one item of $2000 he retained for his salary as clerk of the criminal court for the year 1910; the third item, $2250, was the amount paid for deputy hire in the criminal court for the year 1910, in addition to the amount of $5800 paid to deputies in the circuit court. The plaintiff claimed that defendant was entitled to only $2000 a year salary for serving as clerk of both courts; and, therefore, that he had no right to retain that $1100.48 to apply on the balance of his salary as clerk of' the criminal court for the year 1909, nor to $2000 which he retained as salary as clerk of the criminal, court for the year 1910. The item of $2250 is disputed by the plaintiff on the ground that he was entitled to retain for deputy hire only sufficient sums to pay $5800, the amount provided for his “deputies or assistants” as clerk of the circuit court.

The points in issue are, first, whether the defendant was entitled to receive a compensation of $2000 a year as clerk of the criminal court, and the same amount as clerk of the circuit court; and, second, whether he was entitled to retain for deputy hire any more than the $5800 provided by section 10722; that is, whether in addition to that amount paid to deputies and assistants in the circuit court he could also pay any sum for such services in the criminal court. The circuit court found against defendant on each of these points.

I. The answer to the petition pleaded that the right of the defendant Patton to retain the amounts he did for his additional salary was res adjudicata; that suit had been brought against him by Buchanan County for $899.-52, which he appropriated for that purpose for the year 1909; that judgment had been rendered in bis favor, thereby settling the question as to; his right to such salary. The respondent claims that that judgment is not res adjudicata, because the suit in this case is for money not involved in that suit. It is further claimed that the parties are not the same, inasmuch as the sureties on the official bond of Patton are parties to the present suit, while Patton only was a party to the suit by'the county for $899.52.

The files in that ease were introduced in evidence. The cause of action stated by the county alleged that defendant had unlawfully retained $899.52. The defendant demurred to the petition, claiming that the petition showed he had retained only $2000 for salary as clerk of the circuit court, and therefore, on its face, showed he had a right to the $899.52 to apply on his salary as clerk ef the criminal court. His demurrer was sustained and judgment entered accordingly.

In order that a judgment may conclude the parties in a subsequent suit, the cause in which the judgment was rendered need not involve the same facts nor the same claim or demand which was adjudicated in a prior action; the test is whether there is an identity of issues. A former judgment is conclusive in a second suit between the same parties where the same legal right as that involved in the former suit comes again in issue, although the second suit is upon a different cause of action. This applies to successive suits brought on a continuing or recurring cause of action. [State ex rel. v. Mining Co., 262 Mo. l. c. 502; Exposition Driving Park v. Kansas City, 174 Mo. l. c. 438-9; Turnverein v. Hagerman, 232 Mo. l. c. 704; Edmonson v. Carter, 180 Mo. 515; LaRue v. Kempf, 186 Mo. App. l. c. 70-1; Drake v. Mayor of New York, 77 N. Y. 611; So. Minn. Ry. Ext. Co. v. Railroad, 55 Fed. 690; Hirshbach v. Ketchum, 82, N. Y. S. 739; Rankin v. City of Big Rapids, 133 Fed. 670; L., N. A. & C. Ry. Co. v. Carson, 169 Ill. 247.] Nor does it matter that additional parties are made defendants in this case, because the party pleading the estoppel and the party against whom it was pleaded were both parties to the former action. [Young v. Byrd, 124 Mo. 590; Nave v. Adams, 107 Mo. 414.]

The matter adjudicated in the former case was whether or not the defendant Patton was entitled to a salary of $2000 a year as clerk of the criminal court in addition to the $2000 he received as salary as clerk of the circuit court. Although the cause of 'action at this time involves hi§ salary for a different time, it was the same official term. The right to both salaries having been determined in his favor, further inquiry into that matter is precluded. Therefore, the trial court was in error in rendering judgment against him for the first two items of $1100.48 and $2000.

II. Was Patton entitled to retain sums paid deputies or assistants employed in the criminal court in addition to the amount allowed by the law for such belp in the circuit court?

Section 4194 in the act creating the criminal court of Buchanan County provides:

“'The clerk of the circuit court of Buchanan County shall also act as and be the clerk of said criminal court and shall perform the same duties and receive the same compensation as is or may be allowed to clerks' of circuit courts for like services.”

The act creating the criminal court of Buchanan County was passed in 1885, containing the section which is now Section 4194. While that was in force, in 1891, the act was passed fixing the amounts a circuit clerk 'could retain for himself and for deputies and assistants. That act, in article 2, included section 10721, Revised Statutes 1909, as it now stands, and section 10722 as it was before the amendments of 1903 and 1909, to be noted below.

Section 10721 requires every clerk of a court of record in every county to make a quarterly report to the county court and contains the following, in a proviso at the end:

“And in all counties where one person is clerk of the county and circuit courts, or clerk of one court and ex-officio clerk of another court, his statement shall be separate for both courts. ... In all cases contemplated in this proviso they shall he treated as one office and the person shall he allowed an amount not exceeding the amount specified in the next section.”

The next section, 10722, provides:

“The aggregate amount of fees that any clerk under articles 2 and 3 of this chapter shall be allowed to retain for any one year’s service shall not in any case exceed the amount hereinafter set out.”

Then follows in the same section the provision that in counties of the population which would include Buchanan, the clerk shall be “allowed to pay deputies or assistants” the sum of $3500.

In an amendment in 1903 the amount was raised to $4800 for such counties having more than one division of the circuit court. In 1909 the section was again amended allowing $5800 for deputies or assistants in such counties which may “contain a city of the first or second class.” This last amendment could apply only to Buchanan County and completed Section 10722 as it now stands.

The legislative intent is clear that the sum of $5800 should be the maximum amount allowed for the services of deputies or assistants in both the circuit and criminal courts. And the use of the word “compensation” in Section 4194 contemplates only what the clerk shall receive for his own services, and has nothing to do with the amount allowed for deputies or assistants.

The judgment is reversed and the cause remanded with directions to render judgment for plaintiff for $2250 and interest thereon from the time the court may find the same became due the county.

Roy, G., concurs.

PER CURIAM:

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

All concur, Paris, J., in result.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    NANNIE M. JOHNSON v. HARTFORD INSURANCE COMPANY, Appellant.
    Division Two,
    July 16, 1917.
    .1. ASSESSMENT INSURANCE: Admission in Annual Report: Evidence. Where the assessment insurance policy provided that when the safety fund reached one million dollars the excess should be applied to the payment of premiums, the annual report by the company to the State Insurance Department showing a safety fund on hand in excess of that sum at the time the company declared a' forfeiture of the policy for non-payment of an assessment, is competent evidence, as an admission, and while the company has the right to explain said admission, by showing there were two safety funds, one for men and the other for women, whose aggregate amounts were consolidated in the report, it has no right as a matter of law to say that its-explanations and not its prior written admissions shall be believed by the jury. Such admission is sufficient evidence, even in face of such explanation, upon which to found a finding that the safety fund exceeded one million dollars.
    2. -: Forfeiture: Burden of Proof. Where the charter and bylaws of the assessment insurance company provide that all the affairs of the company shall be managed and controlled by a board of directors, and the company for a defense to a suit on the'policy counts upon a forfeiture for failure to pay an assessment, the burden is upon the company to show an assessment levied in strict accord with the contract and that it was made by the board of directors; and it is not error to so instruct.
    3. -: -: Excessive Assessment. A forfeiture of an assessment policy cannot be predicated upon the non-payment of an assessment which was excessive.

      4. -: Assessments to Create Future Mortuary Fund: Forfeiture. Unless the power is conferred by the policy contract, an.assessment insurance company does not have the right to make assessments for death losses occurring in the future in order to provide a mortuary fund from which future death losses can be promptly paid; and, if there is on hand a sufficient mortuary fund to pay accrued death losses at the time the assessment is made, the policy cannot be forfeited for failure to pay an assessment to meet anticipated death losses.
    5. -: Abandonment of Policy: Not Pleaded. Abandonment of a contract of insurance is an affirmative defense which to be avail- ■ able must be pleaded; and an allegation that the. insured for five years acquiesced in the forfeiture of his policy is not a plea of abandonment. Forfeiture implies a cancellation of an existing right, while abandonment is a voluntary surrender of such right.
    6. -: -: Consideration on Appeal. Abandonment is largely a question of intention to be determined upon a proper showing by the jury as a question of fact, and the burden is on him who asserts it; and where nothing but acquiescence in a forfeiture was pleaded, and there was no attempt to submit the question by instructions to the jury, the court will not on appeal determine whether or not there was evidence showing an abandonment of the insurance policy by the insured.
    Appeal from Henry Circuit Court. — Hon. C. A. Denton, Judge.
    Affirmed.
    Jones, Jones, Hooker é Davis, Wash Adams and Lewis Sperry for appellant.
    (1) There is no evidence tending to show that there was any excess in the safety fund, and it was error to permit the jury to find that there was an excess in such fund. The reports to the Insurance Department should have been excluded. Janssen v. Stone, 60 Mo. App. 402; Schwartz v. Frank, 183 Mo. 447. (2) There is no evidence tending to show that there was any excess in the mortuary fund, and it was error to permit the jury to find-that there was an excess in such fund. Crossman v. Assn., 9 N. E. 753; McGowan v. Int. Council, 76 Hun, 534; Smith v. Cor. Mut., 16 Tex. Civ. App. 593. (3) There :s nó evidence tending to show what was Dr. Johnson’s share of the assumed excess in the safety fund and mortuary fund, and it was error to permit the jury to find that his share of this supposed excess “was sufficient to pay the amount of the premium due” by Dr. Johnson. Dresser v. Hartford Life, 80 Conn. 681; Crossman v. Mass. Ben., 9 N. E. 753; McG-owan v. Sup. Council, 76 Hun, 534; Smith v. Cor. Mut., 16 Tex. Civ. App. 593; Rosenberger v. Washington Co., 87 Pa. St. 207; White v. Ins. Co., 93 Mo. App. 282; Newco'mb v. Jones, 37 Mo. App.. 475; 2 Wigmore, Ev., p. 1228, sec. 1058; Sands v. Boutwell, 26 N. T. 233; White v. Ross, 4 Áb. App. 289; White v. Coventry, 29 Barb. 305. (4) Instruction No. 1 is erroneous, conflicting and misleading, in that it authorizes the jury to find that “there was a sum of money in excess of $1,000,000 in the, safety fund. . . . and a surplus in the mortuary ■ fund” and that “Dr. Johnson’s share in such excess, if any, was sufficient to pay the amount of the premium due.” (5) Instruction No. 2 is erroneous in that it put upon the defendant the burden of showing that it was “necessary” for defendant to levy Call 95 and to show that such call or assessment “was made by the directors of the defendant” and to show that said call.“was not for a larger amount than was necessary to pay the death losses which had accrued up to that time,” and that such call was not for a larger amount than was necessary “after giving Dr. Johnson credit for his pro rata share of the excess in the safety fund and mortuary fund, if any,” and because there is no evidence from which the jury could find that the assessment was for a larger amount than was necessary and no evidence from which they could find what was Dr. Johnson’s share of the supposed excess in either the safety fund or mortuary fund. (6) Instruction 3 is erroneous in that (a) it makes the defendant liable if the jury shall find that “there was in the hands of the defendant a mortuary fund which had been collected from previous assessments,” because necessarily such fund was, in the main, the result of previous assessments and the creation and maintenance of such mortuary fund was the defendant’s duty under the contract, and (b) said instruction makes it the duty of the defendant to entirely use up said mortuary fund before it could lawfully levy the assessment or call in question. Said instruction is also erroneous in that it submits no facts for the jury to find, but merely generalities or conclusions. Fee v. National Assn., 110 Iowa, 275; Assn. v. Birnbaum, 116 Pa. St. 565; Niblack,, Ben. So., see. 280; Miles v. Mut. Res., 108 Wis. 421; Mee v. Assn., 69 Minn. 210, 212; Van Frank v. Assn., 158 111. 565; 2 Cooley’s Briefs Ins., p. 1027; Felver v. Railroad, 216' Mo. 195; Ascher v. Schaeper, 25 Mo. App. 1; Gerrans v. Mfg. Co., 51 Mo. App. 618; Glick v. Railroad, 57 Mo. App. 97; Bates v. Railroad, 98 Mo. App. 330; Furber v. Bolt Co., 185 Mo. 302; Stokes v. Burns, 132 Mo. 214; Holland v. Vinson, 124 Mo. App. 417; Kennedy v. Railroad, 128 Mo. App. 299; Turner v. Snyder, 139 Mo. App. 656. (7) The amount of the safety fund or mortuary fund is no factor in determining the validity of Call 95. (8) There was an abandonment of the contract by the insured and acquiescence in the asserted forfeiture. Ryan v. Assn., 96 Fed. 796; Mutual Life v. Phinney, 178 U. S. 327; Mutual Life v. Sears, 178 U. S. 345; Mutual Life v. Hill, 178 U. S. 347; Mutual Life v. Allen, 178 U. S. 351; Jones v. Ins. Co., 28 Ins. L. J. 834; Haydel v. Assn., 98 Fed. 200; Smith v. Ins. Co., 63 Fed. 769; McDonald v. Grand Lodge, 21 Ky. L. 883; Lane v. 'Ins. Co., 33 Wash. 57; Lavin v. A. O. U. W., 112 Mo. App. 1; Glardon v. Sup. Lodge, 50 Mo. App. 45; Miller v. Grand Lodge, 72 Mo. App. 499; Bange v. Supreme Council, 128 Mo. App. 461; McGeehan v. Insurance Co., 131 Mo. App. 417; Robinson v. Mutual Reserve, 182 Fed. 860.'

      Parks £ Son and Fyke £ Snyder for respondent.
    (1) The evidence clearly shows and the jury, under proper instructions, found, that no legal assessment had been made upon deceased. The appellant, to enforce a forfeiture has cast upon it the burden of showing a legal and proper assessment. King v. Ins. Co., 133 Mo. App. 612; Earney v. Modern Woodmen, 79 Mo. App. 305; Agnew v. A. &,W. W., 17 Mo. App. 254; Pushman v. Annuify Co., 92 Mo. App. 640 ; Lewis v. Benefit Assn., 77 Mo. App. 586. Even if an ,assessment had been made by proper authority, still if the same was excessive, the policy could not be forfeited for failure to pay the same. Peoples v. Ins. Co., 7 Allen (Mass.), 235; Benjamin v. Mut. Reserve, 79 Pac. 517. Under the terms of the policy levies could be made against members for the purpose only of forming a mortuary fund for the payment of all indemnity matured by “deathof members,” which assessments to be levied upon all the members in the department wherein this certificate is issued whose certificates are in force ‘ ‘ at the dates of such deaths,’ ’ shall be made according'to the table of graduated assessment ratios given herein, and as further determined by their respective ages and the aggregate maximum of indemnity “at the dates of such deaths,” with due allowance for discontinuance of membership. So it will be seen that the assessments authorized by the contract are strictly post-mortem assessments. The fact that it may be more convenient for the company to have funds on hand to meet anticipated deaths is no justification or excuse for making ante-mortem calls. Schultz v. Ins. Co., 59 Minn. 308. The company had no right to reserve and keep on hand a large surplus in order that it might pay its future death losses, and any alleged assessment made under such circumstances was null and void. Lee v. Mutual Reserve Fund, 97 Va. 160. Appfellant seeks to establish a forfeiture. To do that it must show that it has not departed one jot or tittle from the terms of the contract. (2) There is no question of abandonment or acquiescence in this case for review by this court. Abandonment was not pleaded. There could be no abandonment under the facts in this case. If deceased was called upon to pay more than was due, he was under no obligations to offer to pay what was in fact due, if anything. Gruewell v. National Council, 126 Mo. App. 496; Purdy v. Ins. Co., 101 Mo. App. 91; Hyatt v. Legal Protection Assn., 106 Mo. App. 614. “To constitute an abandonment of the legal right secured, there must be a clear unequivocal and decisive act of the party — an act done that shows a determination not to have the benefit which is designated for him.” 1 Words & Phrases, p. 4. Abandonment is an affirmative defense and must be pleaded, and must be established by proof, and the question if any proof on the subject be offered, is for the jury.
   WILLIAMS, J.

This is an action upon a policy of life insurance issued by the defendant company, on November 1, 1888, to James T. Johnson, in the sum of five thousand dollars, payable, upon the death of the assured, to Nannie M. Johnson, the named beneficiary, therein. The defendant company seeks to avoid payment ’of the policy on the ground that the policy became forfeited because the assured failed to pay a premium assessment thereon. Trial was had in the circuit court of Henry County, before a jury, resulting in a verdict and judgment in favor of the plaintiff for the full amount of the policy, plus interest, which amounted to the total sum of $5556.66. Thereupon the defendant company duly appealed to the Kansas City Court of Appeals, which court (166 Mo. App. 261) affirmed the judgment. The case was certified here by the Kansas City Court of Appeals on the ground that the majority opinion of that court was in conflict with certain decisions of the St. Louis Court of Appeals.

By the pleadings it stands admitted that defendant was a corporation and that it had issued the insurance policy upon which-this suit was founded; that the assured died on the 15th day of February, 1907, and that plaintiff is the named beneficiary in said policy and. since the death of the assured has complied with all of the requirements of said policy. It was further admitted that plaintiff had made demand for the payment of the policy, which had been refused.

The evidence upon the part of the plaintiff was substantially as follows:

The policy contract was introduced in evidence. Portions of the contract necessary to an understanding of the issues are as follows:

“In consideration of the representations, agreements, and warranties made in the application herefor, and of the admission fee paid; and of three -dollars per annum on each $1000 of the indemnity herein provided for, for expense dues, to he paid as hereinafter conditioned, and of the further payment of all mortality calls proportioned to .the said indemnity, levied against the herein named member to form a mortuary fund for the payment of all indemnity matured by deaths of members, and to create a safety fund as hereinafter described, which mortality calls, to he levied upon all the. members in the department wherein this certificate is issued whose certificates are’in force at the dates of such deaths, shall be made according to the table of graduated mortality ratios given hereon, and as further determined by their respective ages and the aggregate indemnity at the dates of such deaths, with due allowance for discontinuance of membership (one-third of the proceeds of such mortality calls to be applied towards said safety fund until the sum of ten dollars on each $1000 indemnity aforesaid, shall have been thus applied, when the basis of all subsequent mortality calls shall be two-thirds only of the table given hereon), does hereby issue this certificate of membership in its safety fund department to James T. Johnson (herein called the member), of Clinton, County of Henry, State of Missouri, with the following agreements : '
‘ ‘ That ninety days from the receipt by the president or secretary of said company of satisfactory proofs, in accordance with forms furnished upon notice of death and with full information as to the manner and cause of the death of the herein named member while this certificate is in force, all of the conditions hereof having been conformed to by the member, upon presentation and surrender of this certificate properly receipted, there shall be due and payable, out of the aforesaid mortuary fund and not otherwise, the indemnity of five thousand dollars (less the balance unpaid, if any, of the stipulated contribution to said safety fund, with fifty per cent added, together with the unpaid installments of annual expense dues and any mortality or .other charge against the member, payment of which is not matured) to his wife, Nannie M. Johnson, if living; otherwise to his legal representatives. All such payments to be made at the home office of said company in' lawful money of the United States.
“That said company will deposit said sum of ten dollars, when received, with the trustee, named in a contract made with it (of which a copy is printed hereon), as a safety fund in trust for the uses and purposes expressed in said contract; and shall make a semi-annual division of the net interest received therefrom by it, pro rata among all the holders of certificates in force in said department at such times, who shall have contributed five years prior to the date of any such'division their stipulated proportion of said fund, by applying the same to tlie payment of their future dues and assessments; and that, whenever said fund shall amount to one million dollars, all subsequent receipts therefor shall be divided by the said company in like manner as the interest.”

The policy also provided that upon a failure to pay the annual dues, mortality calls and safety fund deposit as required by the contract, the policy should become null and void and of no effect. Plaintiff introduced in evidence that portion of the annual statements of the defendant company made to the Insurance Department of the State of Missouri, showing the condition of the safety fund department for the years ending December 31, 1900, 1901, 1902, 1903, 1904, 1905 and 1906. The report for the year ending December 31, 1900, showed the following items:

Net safety funds in’ Security Company of Hartford, Conn, ........................................... 1,112,569.14
Reserve on safety fund policies .................... 230,220.00
Mortuary fund held in addition to reserve .......... 111,495.36
Premiums in course of collection, safety fund department .......................................... 349,000.00

The report for the year ending December 31, 1901, contained the following items:

Net safety funds in security company................ 1,166 905.02
Reserve on safety fund policies ..................... 262,257.00
Mortuary and other funds in addition to reserve .... 116,313.59
Premiums in course of collection, safety fund department ........................................... 358,300.00

The report for the year ending December 31, 1902, shows the following items:

Net safety funds ...................................$1,176,561.25
Special reserve and surplus on safety fund policies .. 352,640.92
Premiums in course of collection, safety fund department ........................................... 198,250.00

The evidence upon the part of the defendant was in deposition form and consisted largely of the deposition of George E. Keeney, president of the defendant company.

The charter of the defendant company was introduced in evidence, showing that it was chartered to do a life insurance business by the Legislature of the State of Connecticut. The by-laws of the company which were introduced in evidencé provided that the board of directors “shall have full power to exercise the corporate powers conferred upon the company by its charter and any amendments thereof excepting as shall be otherwise determined by the by-laws or resolutions of the company,” and further provided that three ’ directors “ shall constitute a quorum for transacting the ordinary business of the corporation.”

The defendant company, from the date of its organization until 1880, issued what is known as the legal-reserve or old-line insurance policies. Prom 1880 to 1899 it issued the safety-fund or assessment form policies. This is the form of policy involved in this suit. In 1899 it ceased doing the assessment or. safety-fund business and again began doing the old-line or legal-reserve business.

Prom the date of the issue of the policy in this case up until the assessment due June 1, 1902, the assured paid all dues and assessment calls made against this policy. Call No. 95, which was not paid by the assured and upon which defendant bases its forfeiture, was laid or assessed as of date April 1, 1902, and was due and payable June 1, 1902. The amount stated in the call as due upon Dr. Johnson’s policy was $74.55. This call was mailed to Dr. Johnson May 2, 1902. It states that the call is due June 1, 1902, and that it is made to meet one hundred and thirty-seven deaths, amounting to $369,859. A list of the one hundred and thirty-seven deaths accompanied the call. On June 10th a second notice was mailed by the defendant company to Dr. Johnson, calling his attention to the fact that the quarterly call No. 95 had not been paid by him and stating further that unless the amount of the call plus fifty cents for the additional notice should be received at the home company on or before June 20, 1902, the policy should be cancelled. On June 19, 1902, Garland S. Johnson, son of the assured, wrote defendant company the following letter:

Schell City, Mo., June 19, 1902.
Hartford Life Ins. Co.,
Hartford, Conn.
Gentlemen:—
My father and I both have been out of town and did not get to attend to payment due on policy 109854, Hartford Life & Annuity Insurance Co., on life of Jas. T. Johnson. I see our time expires tomorrow. What steps can we take now to make payment and .have it reinstated. Father is in perfect health. I am very sorry indeed for the delay, but it could not possibly be avoided. Kindly let us know by return mail.
Yours very truly,
Garland S. Johnson,
June 24, 1902.

On June 24, 1902, the defendant company replied to said letter as follows:

Garland S. Johnson,
Schell City, Mo.
Dear Sir:
As you wrote us before the last day of grace expired for payment of the June call, policy No. 109S54, we are warranted in extending the time of payment, and have given you until July 5th to renew the policy. If, therefore, you wish to remit us $75.05 on or'before that date, the policy will be kept in force.
Yours truly,
E. A. Wright,
Chief Clerk.

Call No. 95 was never paid by the assured or by anyone for him and it appears that no further communication was had between the. defendant company and the assured thereafter.

Garland S. Johnson was called to testify in the case by the defendant-and, upon direct examination, testified that he wrote the above mentioned letter to the defendant company without any authority from his father, the assured, and that his father didn’t know anything about it until he received the above reply and that his father then said that “he would attend to it.” On cross-examination this witness testified that at that time he knew nothing about the company’s mortuary fund, reserve fund or safety fund.

The evidence upon the part of the defendant attempts to explain the annual report made by it to the Insurance Department of the State of Missouri, by stating that the company carried two safety funds, one known as the men’s department safety fund and one known as the women’s department safety fund; that in truth and fact these two funds were levied separately and kept separately by the security company, under two separate contracts, and that the two funds were erroneously added together and appeared as one fund in the annual reports. The evidence upon the part of the defendant further tended to show that the men’s department safety fund attained the sum of one million dollars on December 31, 1893, and that ever since that date all interest thereon, together with dues thereto, were turned over by the security company to the defendant, company and by it distributed to its policy-holders, under the terms of its policy contracts; that on April 30, 1902, the book value of the men’s safety fund was $1,-056,354.04, but that the par value was only one million dollars; and that on June 1st of the same year the stock value of the men’s safety fund was $1,056,654.04 and the par value thereof was $1,000,000.

It further appeared that the average death loss per month was about $100,000. The president of the company described the different items going into the assessment call No. 95. It appears that the lapses were estimated at five per cent, and later turned out to be 3.52 per cent. Call No. 95 was assessed by the president and secretary of the company or by the vice-president and secretary of the company or by the vice-president and someone acting for the secretary; that the practice of the company in levying calls for assessment was not only for the purpose of paying existing death losses, but also for paying anticipated death losses occurring before the next call; that call No. 95, together with the mortuary funds on hand, had not only to provide for existing death losses, but also all anticipated death losses that would occur before September 1, 1902; that the death losses wore not paid from any particular call, but were paid from the mortuary fund, and the mortuary fund was in turn replenished by the quarterly calls, and that death losses were frequently paid from tbe mortuary fund before an assessment was made to pay that particular loss; that all death losses were included in some assessment and the receipts from all assessments were paid into the mortuary fund, from which fund death losses were paid; that this was done as a matter of convenience, so that death losses might be paid within ninety days from the date of proof.

The trust agreement between the defendant insurance company and the security company, a copy of which agreement was attached to the policy in question, required the security company to invest said trust fund in United States bonds “until the whole fund shall amount in such bonds at their par value to $1,000,000.” It appears that after the policy in question was issued the Legislature of Connecticut- passed an act in 1889 authorizing the defendant insurance company to invest its safety fund in securities other than United States bonds, and thereafter a large portion of the safety fund was invested in railroad and municipal bonds. This possibly explains the two items “book value” and “par value” of the safety fund.

Dr. Johnson, the assured, was a member of the safety fund department, but the defendant company is a stock company and he had no right to participate in the management of the company.

The defendant offered a demurrer to the evidence, which was overruled.

Plaintiff’s instructions numbered 1, 2 and 3, given by the court, which are claimed to be erroneous by defendant, are as follows.:

“1. ‘The court instructs the jury that if you find from the evidence that at the time the defendant notified the deceased Johnson that his premium was due, and which defendant claims he failed to pay, there was a sum of money in excess of $1,000,000 in the safety fund mentioned in the contract, and a surplus in the mortuary fund mentioned in the evidence, then it was the duty of defendant to have applied such excess to the payment of premiums of policyholders; and if you find from the evidence that said Johnson’s share in such excess, if any, was sufficient to pay the amount of premium due at the time said notice was given to him, then defendant could not declare said insurance forfeited for the failure to pay said premium.
“2. The court instructs the jury that it devolves upon the defendant to prove that it was necessary, at the time it claims an assessment was made, for failure to pay which it claims the insurance was forfeited, to make an assessment, and that an assessment was made by the, directors of defendant, and that said assessment was not for a larger amount than was necessary to pay the death losses which had accrued up to that time, after giving-said Johnson credit for his pro rata share of the excess in the safety fund over $1,000,000, if you find there was such excess, and in the mortuary fund, if you find there was excess in that fund, and unless defendant has so proven, it cannot declare said insurance forfeited.
“3. The court instructs the jury that if you find from the evidence there was on hand in said safety fund a sum in excess of $1,000,000, and if you find also there was in the hands of defendant a mortuary fund, which had been collected from previous assessments, then it was the duty of defendant to have applied such excess in said safety fund and said mortuary .fund to the payment of death claims which had matured prior to the time the notice was given to Johnson that his premium was due, for failure to pay which defendant claims said insurance was forfeited, and if defendant failed to so apply said money, then it cannot claim that the insurance is forfeited.’ ’

It appears that defendant asked only one general instruction and that was to the effect that there was no evidence showing vexatious refusal to pay the amount of the policy. This instruction was given. Defendant seeks a reversal of the judgment on the ground that instructions numbered 1, 2 and 3 were erroneous, and on the further ground that the assured has abandoned the policy.

I. It is contended that instructions 1 and 3 above are erroneous because there was no evidence which would warrant the jury in finding that there was a sum of money in excess of $1,000,000 in the safety fund. We are unable to agree with this contention, yye are 0f £he opinion that the facts disclosed by the appellant’s annual reports to the State’s Insurance Department supplied evidence sufficient to allow the jury to pass upon this issue of fact. Those annual reports purport to be the ones- required by law to be made by the appellant company to the Insurance Department of this State and any required statements therein made as to the financial condition of the safety fund department were properly admitted in evidence, at the instance of plaintiff, as admissions of the appellant company. The appellant had the right, which right was accorded it, to explain the admission contained in said report but it has no right as a matter of law to say that its explanation and not its prior written admissions shall be believed by the jury. It was, we think, clearly the jury’s province, to determine that point.

It is contended that instruction numbered 2 above is erroneous because it places upon appellant the burden of showing that Call 95 was made by the board of directors, and that the assessment was not for a larger amount than was necessary to pay the death losses which had accrued up to that time. From the evidence offered, it appears that the charter and by-laws of the appellant company provide that all the affairs of, the company should be managed and controlled by a board of directors.

In the. recent case of Barber v. Hartford Life Insurance Company, 269 Mo. 21 (a case very similar to the one now before us, and against the same company), Division One of this court had before it the questions now urged by appellant. It was there held that in relying upon a forfeiture, the burden was upon the company to show an assessment levied in strict accordance with the contract; that the assessment must be made by authority of thé company’s board of directors; and that a forfeiture of a policy could not be predicated upon the non-payment of an assessment which was excessive. The facts presented in the case at bar are sufficiently similar to the facts held in judgment in that case to bring this case clearly within the rule therein determined. We fully agree with the decision of that case upon the points here involved and it is, therefore, unnecessary to further discuss the various propositions here.

It is contended hy appellant that, under the policy contract, it’had the right to make assessments for death losses occurring in the future to provide a mortuary fund from which future death losses could he promptly paid. We are unable to agree with this contention.

This identical point was recently before the Supreme Court of Minnesota in the case of Ibs v. Hartford Life Insurance Co., 121 Minn. 310. The policy contract thére in judgment was issued by the appellant herein and the terms of the policy were in legal effect substantially the same as the terms of the policy contract now considered. It was there held that the policy contract did not authorize the company “to accumulate a mortuary fund out of which to pay death losses that occur in the future.” The court said: “It is settled law that an assessment to pay future losses is illegal, unless the power is conferred by the contract; and we hold that the contract between the insured and defendant cannot be fairly construed as conferring that power. As it is clear that the assessment in question here was not necessary to pay accrued losses, but was in reality levied to pay losses that might be anticipated to occur in the future, it follows that it was unauthorized and could not be made the basis of a forfeiture.” [Id., l. c. 315.] Among the authorities cited by the Supreme Court of Minnesota in support of that proposition is the case of Johnson v. Hartford Life Ins. Co., 166 Mo. App. 261 (the same being the opinion of the Kansas City Court of Appeals in the case at bar).

We are aware that the judgment of the Minnesota ■Supreme Court in the case of Ibs v. Hartford Life Insurance Company, supra, was, later, by the Supreme Court of the United States, reversed. [Hartford Life Insurance Co. v. Ibs, 237 U. S. 662.] But the reversal was on a ground not involved in the case at bar, viz., on. the ground that the full faith and credit clause of the Constitution of the United States (Art. 4, sec. 1) had been violated by the Minnesota court in rejecting proof of the record of a Connecticut court in a case known as the Dresser case.

The case at bar was tried below on May 12, 1909, which was prior in time to the entering of the decree in the Dresser case, and the record in the Dresser case was therefore not offered or presented in the trial of this case. Since the record of the Dresser case is in no manner properly raised- or lodged in this case, we do not deem it to be within the scope of our review arid likewise the Federal question based thereon. Under such circumstances the rule announced by the Supreme Court of the United States in Hartford Life Insurance Co. v. Ibs, supra, should not be applied to this case.

II.- It is further contended by appellant that the judgment must be reversed because there was an abandonment by the assured of the policy contract.

In approaching a consideration ’of this point it must be borne in mind that the sole function of this court, in this, a case at law, is to pass upon matters of error properly raised in the trial court and passed upon by that court.

We are unable to see wherein this point was presented or passed upon below. It appears that an abandonment was not even pleaded by appellant. ‘ ‘ Abandonment of a contract of insurance is an affirmative defense which is waived if not pleaded.” [Bacon on Life and Accident Insurance (4 Ed.), sec. 364, p. 760.] The only portion of the answer which comes even near the point is the following:

“Defendant alleges that although the said James T. Johnson lived until the 15th day of January, 1907, or nearly five years after the forfeiture of said policy, by reason of the non-payment of said assessment in July, 1902, he, at no time, considered said certificate or policy in force, but at all times acquiesced in the forfeiture thereof, resulting from the non-payment of said mortality call or assessment.”

It will appear at a mere glance that this does not plead an abandonment. Abandonment presupposes an existing valid right which is to be abandoned. Acquiescence in a forfeiture (a cancellation of a right) is quite a different thing from abandoning an existing right. In the former the loss of the right, if any, occurs by reason of the forfeiture, while in the latter the loss of the right occurs by voluntarily and intentionally surrendering an existing right. An abandonment might give cause for forfeiture, but a forfeiture can supply no basis for an abandonment, because when once forfeited the right does not remain to be abandoned.

The question of abandonment is one largely of intention, and the burden of proof is upon the one who asserts it. Upon a proper showing, as a general rule, it becomes a question of fact to be determined by the jury. There was no attempt in this case to even submit that question to the jury — no instruction upon that theory was requested by the appellant.

We therefore rule this point against appellant on the sole ground that the issue was not raised in the trial below.

The judgment is affirmed.

All concur.


author: WHITE, C. PEE CUEIAM:

text:
    GEORGE WALKER et al., Appellants, v. H. SUNDERMEYER et al.
    Division Two,
    July 16, 1917.
    1. NOTICE: Posting: No Public Place. Where there is no store, no blacksmith shop, no school house, no public road in the proposed drainage district, the posting of the notices upon a maple tree, a fence post on the line of the interested parties and at other places along a private road where they will most likely be seen, is a compliance with the statute which requires the notices to be posted in at least five of “the most public places” in said district.
    2. DRAINAGE DISTRICT: Correcting Commissioners’ Report in Circuit Court. Where the organization of a drainage district has been begun in the county court, and has been transferred to the circuit court by the appeal of the remonstrators, the commissioners’ report may be amended and corrected' in matters relating to the description of each tract of land mentioned therein, and in any other respect which does not violate the substantial rights of the parties. Sec. 4091, R. S. 1909, gives the circuit court the same authority over such amendments as Sec. 5560, Laws 1913, p. 267, gives the county court.
    Appeal from Osage Circuit Court — Bo». JR. A. Breuer, Judge.
    Akfibmed.

      Vosholl S Monroe for appellants.
    (1) The notices must be posted, at least five in number, within the drainage district at public places, at the most public places therein. It will not he sufficient to give jurisdiction to the court to post notices in places, though public, when such places were not the most public places therein. R. S. 1909, sec. 5549. The said notices were not posted in public places, hut were posted in and on private farms. The county court not having acquired jurisdiction, the circuit court acquired none on appeal. (2) The appointments of the commissioners by the county court to assess benefits and damages to landowners, upon the finding of the county court creating the district and confirming their report, became functus officio, and their amending of their report in the circuit court was unauthorized. This is a condemnation proceeding and the law must be followed strictly. Anderson v. Pemberton, 89 Mo. 65; Laws 1933, p. 267, sec. 5560; Leslie v. St. Louis, 47 Mo. 477; Ellis v. Railroad, 51 Mo. 200; Whitley v. Platt Co., 73 Mo. 30. The commissioners who were appointed to assess the benefits and damages to landowners failed to assess damages and benefits to all lands, indicated by the amendment of their report in the circuit court, and if they made any such assessment it was done during the trial of the cause in the circuit court, to which court the cause came by appeal, and, therefore, unwarranted. Sec. 5560, Laws 1913, p. 267. Upon the confirmation of the report of the commissioners appointed to assess benefits and damages to landowners in this cause by the county court, then the appointment of a new commission was necessary to carry out the purposes for which the district was formed, and as matter of law, the powers of the commissioners appointed to assess benefits and damages ceased and they had no power or right to amend their report upon the trial in the circuit court. Sec. 5560, Laws 1913, p. 267.

      Gove <& Davidson, J. R. Garstang, J. P. Peters and E. M. Zevely for respondent.
    (1) The five notices were posted in five of the most public places in the drainage district. The return itself is sufficient, but we can prove notice by any other means. Ziebold v. Foster, 118 Mo. 349; McNicoil v. United States, 74 Mo. 457. (2) The circuit court did not err in allowing the commissioners appointed to assess benefits and damages to amend their report at the conclusion of the testimony introduced by respondents showing the facts as to the action of such commissioners. The viewers were not required to go to the deed records to ascertain who owns the land against which they have assessed the benefits and damages. State ex rel. v. Blair, 245 Mo. 693. Laws relating to drainage and protection of overflowed lands should not receive the same construction that courts give to laws governing the assessment and collection of taxes. State ex rel. v. Bates, 235 Mo. 262; Wilson v. Drainage District, 257 Mo. 289. The provisions of this article (Art. 3, chap. 41, E. S. 1909) should be liberally construed to promote the drainage and reclamation of wet and overflowed lands. Sec. 5573, E. S. 1909; Wilson v. Drainage District, 257 Mo. 289. A court may correct a verdict of a jury even after the jury has been discharged and at a subsequent term of court. Acton v. Dooley, 16 Mo. App. 441. The amendment of the verdict may be made from the judge-’s notes of the evidence or from any other evidence equally clear and satisfactory which may be submitted to the consideration of the court. Acton v. Dooley, 16 Mo. App. 441. Courts may in the trial of a cause on appeal correct a mistake in the record of an inferior court. Anderson v. Township, 75 Mo. 57. (3) Under the liberal amendments authorized by Sec.'5561, Laws 1913, the action of the circuit court in allowing the commissioners to amend their report of the assessment of benefits and damages was not material, and the most that could be claimed by appellant would be an irregularity not involving a jurisdictional question. State ex rel. v. Wilson, 216 Mo. 279. The court did not in any way modify the real findings of the commissioners and it committed no error in directing them to put their findings in another form without in any way changing its substance. Bosse v. Thomas, 3 Mo. App. 480; Eanney v. Bader, 48 Mo. 539; State ex rel. v. Knight, 46 Mo. 83; Henley v. Ar-buckle, 13 Mo. 209. There is no error materially affecting the merits of the action. Freeland v. Williamson, 220 Mo. 229; Stumpe v. Kopp, 201 Mo. 412; Manse v. Boerr, 222 Mo. 115; Berry v. Eailroad, 214 Mo. 293.
   WHITE, C.

The appeal is from a judgment of the circuit court of Osage County establishing a drainage district in said county known as ‘ ‘ Shawnee Creek Drainage District of Osage County,” and declaring the same a body corporate. Tbe respondents here were tbe original petitioners before the county court of Osage County, and the appellants here were remonstrators.

Tbe matter reached tbe circuit court upon an appeal by tbe remonstrators from a judgment of tbe county court where tbe report of commissioners, appointed under section 5551, Revised Statutes 1909, was approved, and tbe objections of remonstrators overruled. Tbe judgment of the circuit court on a trial anew “approved and confirmed” tbe order and judgment of tbe county court.

I. Appellants claim that tbe county court did not acquire jurisdiction of tbe matter by reason of tbe failure of the clerk of tbe county court to post the notices required by section 5549, Revised Statutes 1909. This section providés that tbe county court, upon tbe filing of tbe petition for tbe formation of the district, shall cause three weeks’ notice of its presentation- and filing to be given in three different ways: First, by posting such notice in at least five of the most public places in said proposed district ; second, by causing a copy of tbe same to be served on each landowner or person interested residing in any county affected by tbe proposed work; and, third, by publishing tbe notice for three successive weeks in some newspaper. No question is raised as to tbe proper service of tbe notice by tbe second and third methods. It is claimed only that there was a failure to post tbe five notices in “five of tbe most public” places in tbe proposed district.

Tbe same section provides that tbe “certificate of tbe clerk or the-affidavit of any other credible person, affixed to a copy of said notice, shall be sufficient evidence of tbe posting,” etc. The record shows tbe affidavit of F. W. Hoehner to tbe effect that be posted tbe notices, describing the five places where he put them, and stating that those places were “five of the most public places in Shawnee Creek Drainage District as described within tbe aforesaid notice,” etc.

It appears that the petitioners were not content to stop with this affidavit, but introduced evidence to show where the notices mentioned in the affidavit were posted. This testimony shows, among other things, that there was no post office in the proposed district, no store, no blacksmith shop, no school house, and no public road; the appellants claim, therefore, that there was no public place in the district at which a notice could he put up. The places mentioned in the affidavit and identified by the witnesses were: a maple tree at a certain point near the line between two of the parties interested, a fence post on the line of one of the parties, and other like places. It was shown that these places were along private roads and places where they would be most likely to he seen by anyone passing through the district and were, in fact, “the most public places in the district.” There were only three families living in the district. Under the construction contended for by the appellant it would he impossible to give proper notice and form a district unless there were five places in the district which might be called public places. The statute contemplates the formation of drainage districts in places not easily accessible to the public and for that reason the words “most public places” were used instead of “public places” unqualified. The finding by the trial court that the posting of the notices was in compliance with the statute is sustained by the evidence.

II. Another assignment of error by appellant was the action of the trial court in permitting the commissioners to amend their report. After the case got into the circuit court, and after hearing the testimony, the circuit court ordered the report of the commissioners to he corrected and it was corree^e^ in °Pen court. The correction related to the description of each tract of land mentioned in the report. The original report correctly gave the boundaries of the district and correctly stated the number of acres owned by each person, without giving correctly the .description of each tract. The amendment made the description of the several tracts more definite and certain and .possibly had the effect in some instances of including some parts which had been left out of the specific descriptions in the original report. The changes made did not affect the amount of damages awarded, nor the amount assessed as benefits, nor in any respect tend to affect the purpose of the report.

Section 5560, Revised Statutes 1909, as amended by the Act of 1913, Laws 1913, page 267, provides, among other things, upon a hearing of the report and remonstrance: “If the court finds from a hearing duly had that the report requires ■ modification, the same may be referred to the commissioners, who may be required to modify the report in any respect.”

This reference, of course, is to a proceeding in the county court and authorizes that court to modify the report ‘‘in any respect,” which would not violate the substantial rights of the parties.

It is not contended by appellants that the amendment could not have been made in the county court. They only claim that the circuit court was powerless to make it after an appeal there. In that appellants overlook the effect of an appeal to the circuit court from the judgment of a county court. Section 4091, Revised Statutes 1909, gives the circuit court appellate jurisdiction of judgments and orders of the county courts in the following terms:

“In all cases of appeal from the final determination of any case in a county court, such appeal shall be prosecuted to the appellate court in the same manner as is now provided by law for the regulation of appeals from justices of the peace to circuit courts, and when any case shall be removed into a court of appellate jurisdiction by appeal from a county, court, such appellate court shall thereupon be possessed of such cause, and shall proceed to hear and determine the same anew, and in the same manner as if such case had originated in such appellate court.”

The effect of this statute is to give to the circuit court on appeal exactly the same authority and jurisdio tion in every particular as that enjoyed by the county court from which the appeal is taken and any amendment, correction or modification that might be ordered in the commissioners’ report in the county court can be ordered in the circuit court. All parties affected were before the court. [King’s Lake Drainage and Levee District v. Jamison, 176 Mo l. c. 566; Allen v. Welch, 125 Mo. App. 278, l. c. 287; Long v. Talley, 91 Mo. 305.] This statute relating to drainage districts must be “liberally construed to promote the drainage and reclamation of wet and overflowed lands.” This is provided in the act itself, apparently in order to cover irregularities and the embarrassment caused by mistakes and blunders in a proceeding of this kind. [Sec. 5573, R. S. 1909; Wilson v. Drainage Dist., 257 Mo. l. c. 289.]

No error is discernible in the record; the proceeding seems to have been entirely regular.

The judgment is affirmed.

Roy, G., concurs.

PEE CUEIAM:

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

All of the judges concur.


author: ROY, C. PER CURIAM:

text:
    EUGENE FRANKLIN, Appellant, v. HUME CONSOLIDATED SCHOOL DISTRICT et al.
    Division Two,
    July 16, 1917.
    1. TRIAL THEORY: Illegal Vote at Election: Evidence. In a proceeding to invalidate certain school bonds brought by a taxpayer against the district, where all parties, including the court, tried the case on the theory that inquiry could not be made into the question of who were legal voters at the election at which the proposition to issue bonds was determined, the plaintiff on appeal cannot complain of the exclusion of evidence offered for the purpose of showing that a certain person who voted at said olec-i tion was not a legal voter.

      2. ILLEGAL VOTE: Exclusion After Having Been Placed in Ballot Box. The judges of election after- having received and placed in the ballot box the ballot of an illegal voter and after having-counted it against the proposition voted on, have a right to throw it out and deduct it from the total vote on the proposition, even if they thereby change the previously announced result.
    3. ISSUE OP BONDS: Assent of Two-Thirds of Voters: Meaning. The provision of section 12 of article 10 of the Constitution, pertaining to the issuing of bonds by a school district and requiring “the assent of two-thirds of the voters thereof voting at an election to be held for that purpose,” means two-thirds of those voting on the proposition, and not two-thirds of the ballots cast at the annual school election. So that where 214 ballots were cast at the annual school election, and 204 voted for the proposition to issue bonds and there were 136 for said proposition and 68 against it, two-thirds voted “for that purpose,” *
    Appeal from Bates Circuit Court. — Eon. C. A. Galvird, Judge. „
    Affirmed.

      James A. DeArmond and Smith S Chastain for appellant.
    (1) The court erred in receiving evidence over plaintiff’s objection tending to show that Joe Thorn, who voted at the election in question, was not a legal voter, (a) Because there was no evidence even tending to show that he voted “against the loan.” (b) Because no question was ever raised by the officers of the election as to his qualifications as a voter, and his vote had been received, counted and certified by the officers of the election. (2) The court erred, in holding that the evidence showing the publication of the result of this election in the local newspaper was not competent. It tended to show what was the result proclaimed as provided by the statute. R.- S. 1909, sec. 5910 and sec. 10879. (3) The court erred in refusing to permit plaintiff to prove that Carl Palmer, who voted at this election “against the loan” and whose vote was received and so counted by the election officials and afterwards was thrown out after it was by them ascertained that by so doing the result of the election would be shown to be changed, was in fact a legal voter there when he cast his ballot. R. S. 1909, secs. 5818, 5900, 5905, 5908, 5909 and 10879; 10 Am. & Eng. Ency. Law, p. 706; Heidelberg v. St. Francois County, 100 Mo. 69; Hopkins v. Swift, 37 S. W. 155. (a) The judges having once passed upon Palmer’s qualifications to vote and having received his ballots and placed them in the box, whatever judicial functions they may have had as to this vote was then functus officio. Bowen v. Hixon, 45 Mo. 340. (b) Defendants having been permitted to prove over plaintiff’s objections what they claimed were the statements of Palmer as to his residence and right to vote, if these were material, as the court held, plaintiff should have been permitted to introduce the testimony of Palmer tending to disprove that affirmative testimony, and showing just what he did say, and this the court denied to plaintiff. (4) The six defendants, directors of defendant school district, along with the three judges and two clerks of the election were charged with fraud in the matter of throwing'out the vote of Palmer, thus changing the result of the election as certified, none of whom, save one judge of election and one school director went upon the witness stand. The facts were peculiarly within their knowledge. Hence the inference will be indulged that the charge is true. Mabary v. Mc-Clurg, 74 Mo. 575; Baldwin v. Whitcomb, 71 Mo. 651; Strolmeyer v. Zeppenfield, 28 Mo. App. 268; Ins. Co. v. Smith, 117 Mo. 294; Stephenson v. Kilpatrick, 166 Mo. 262; Henderson v. Henderson, 55 Mo. 559. (5) This inference is authorized by the erasure of a vote tallied, changing the total as extended, the failure to certify the returns for thirteen days after the election when required to do so within two days and the admitted refusal of plaintiff’s request to see the records. R. S. 1909, sec. 5911 and sec. 10879. (6) Palmer being a legal voter as plaintiff offered to prove and his votes having been received and deposited in the ballot box and counted on all four propositions voted on there, though his ballot on this one proposition was afterwards thrown out by the judges, in an equitable proceeding, as is this, the certificate or return of the election may be impeached for fraud and the real facts ascertained and determined. McCrary on Elections, sec. 458, p. 290; 15 Cyc. 376 (3); Riggs v. Stephens, 17 S. W. 1016; Neiser v. Thomas, 99 Mo. 229; Taber v. Wilson, 34 Mo. App. 96; Louisville v. Park Court, 65 S. W. 860; State ex rel. v. Cunningham, 153 Mo. 642; State ex rel. v. Trust Co., 261 Mo. 448; People v. Wiant, 48 111. 263; Boven v. Smith, 47 111. 485; Powell v. Holman, 50 Ark. 85; Hopkins v. Swift, 37 S. W. 155. (7) There were not two or more elections as defendants claimed, but only one, at which there were submitted to the voters, and upon which they voted, four propositions at this annual school meeting. State v. Bechel, 34 N. W. 342; In re Denny, 59 N. E. 362; In re Davis, 61 Pac. 811; Bryan v. Lincoln, 70 N. AY. 252; In re County Seat, 15 Kan. 500; McCrary on Elections (2 Ed.), sec. 163. (8) Under section 12, article 10, of the Constitution of Missouri, the proposition to incur the debt and to issue the bonds was not carried at the election by the required two-thirds majority of all the votes cast at the election even if it were conceded that the Palmer vote was illegal or that the question of whether or not his vote should have been counted “against the loan” was to be determined alone by the second returns made by the judges and 'clerks of this election. 10 Am. & Eng. Ency. Law (2 Ed.), p. 754; 15 Cyc. 390; State ex rel. v. Winkelmeir, 35 Mo. 103; State ex rel. v. Brassfield, 67 Mo. 331; State ex rel. v. Mayor, 73 Mo. 435; State ex rel. v. Francis, 95 Mo. 51; State ex rel. v. McCowan, 138 Mo. 193-4; State ex rel. v. AVhite, 162 Mo. 535; State ex rel. v. Burns, 195 Mo. 251; School District v. Oellien, 209 Mo. 468; State ex rel. v. Kansas City, 233 Mo. 188; State ex rel. v. Wilson, 129 Mo. App. 242; Bauch v. Cabool, 165 Mo. App. 486; State ex rel. v. Satterfield, 54 Mo. 396-7; Stebbins v. Judges, 66 N. W. 594; Chestnutwood v. Hood, 68 111. 132; Knight v. Shelton, 134 Fed: 423; Green v. State Board, 5 Idaho, 130; State v. Grace, 20 Ore. 154; Walker v..Oswald, 68 Md. 146. (9) The “assent” by the majority of the voters voting at the election as required under section 12 of article 10 of the Constitution of Missouri, is an affirmative as opposed to a passive agent. State v. Brassfield, 67 Mo. 339; State ex rel. v. Kansas City, 233 Mo. 189; State ex rel. v. Wilson, 129 Mo. App. 242; Hawldns v. Carroll, 50 Miss. 735; Mason v. Moore, 73 Ohio St. 275; Knight v. Shelton, 134' Fed. 423.

      J. A. Silvers, J. B. Bryant and Silvers & Silvers for respondents.
    (1) The election judges not only had authority to reject the ballot of Palmer at the time of the count; but it was their duty, at any time before certifying and. making return of the result of the election, to reject the ballot of any voter whom they found, upon investigation, to be not qualified. Hehl v. Guión, 155 Mo. 79. (2) Under the Constitution, the assent necessary to authorize the issue of bonds is that of two thirds of the voters voting on the proposition. A reasonable construction of the provision, and one which is supported by' authority in states where the question has been determined, is that the assent required is the assent of two thirds of those who vote for that purpose. That the adoption or rejection of the bond proposition is to be determined by the result of the election in so far as it is an election for that purpose. The States of Kentucky and Washington have identical constitutional provisions (save that in the latter state the majority required is smaller). In both those states the Supreme Courts have held that, where the bond issue is voted upon at the same election as are other propositions, the result as to the bond issue is determined by the number of votes cast on that particular proposition. Worthington v. Board of Education, 71 S. W. (Ky.) 879; Montgomery County Court v. Trimble, 47 S. W. (Ky.) 773, 42 L. E. A. 738; Board of Education v. Winchester, 120 Ky. 591; Fox v. Seattle, 86 Pac. (Wash.) 379. The foregoing cases go into the question thoroughly and are conclusive. They have been followed by later cases, to-wit: Metcalf v. Seattle, 25 Pac. (Wash.) 1010; Frost v. Central City, 120 S. W. (Ky.) 367; Bussell’s Admr. v. Eailroad, 124 S. W. (Ky.) 840; Inglehart v. Dawson, 136 S. W. (Ky.) 210; Marion v. Haynes, 164 S. W. (Ky.) 79; Fowler v. Oakdale, 166 S. W. (Ky.) 195. The constitutional provision here under consideration can not he said to fall within the first class mentioned by this court in State ex ink: v. Kansas City, 233 Mo. 188. The two thirds required is not two thirds of all the voters of the municipality. But it is two-thirds of those voting. Yet it does not fall within the second class specified by this court in that ease; for the majority required is not two-thirds of those voting at any general election. It evidently falls within the third class mentioned'in that ease; for the majority here required is two-thirds of the voters voting, at an election held for that purpose. Certainly this can mean nothing except that a two-thirds of the voters who vote for that purpose, or upon the proposition, is sufficient to carry it. It has so been construed by the legislative branch of our state government. The Act of the Legislature approved March 30, 1911, says: “And if two-thirds of the votes cast on the proposition shall be ‘for the loan,’ the district board shall be vested with the power to borrow money.” Laws 1911, p. 395. (3) The nine ballots which were defaced, or mutilated or not scratched either for or against the loan, were not votes. The voters who deposited such ballots were rightly considered as not voting. It was the same as though they had not attended the election. And where the assent required is of those voting, voters casting such ballots cannot be counted either for or against the proposition. City v. Kew, 132 Pac. (Cal.) 780. (4) The court cannot go behind the official return of the judges of election and enter into the question of whether they rightly determined the qualifications of a voter. State v. Gamma, 149 Mo. App. 700; State ex rel. v. Kerens, 180 Mo. App. 355. (5) Such was the position assumed by the plaintiffs at the trial. Appellants cannot switch theories of the ease, adopting a different theory on appeal from that adopted at the trial. “A case cannot be tried upon one theory below, and tried upon another and different theory here. ” Huss' v. Bakery Co., 210 Mo. 52; St. Louis v. Contracting Co., 210 Mo. 491. The statute does not require publication of the election result in a newspaper. No official publication was made. If the newspaper said anything about it, the item was merely one of news. Nothing purporting to be an official announcement was offered. Surely statements in a newspaper are not admissible as evidence, any more than other‘hearsay.
   ROY, C.

This is a proceeding to invalidate certain school bonds. There was a judgment for - defendants, and the plaintiff has appealed.

On April 4, 1916, a proposition to issue $20,000 in bonds of the above-named school district for building purposes was legally submitted at the annual school election. There were 214 ballots cast at this election, of which 204 voted on said proposition, 136 being in favor of same. The judges first counted 69 votes against the proposition and announced that the proposition was lost, such result being subsequently published in the local paper. On the same day, and before leaving the polling place, the judges of the election interrogated Carl Palmer who had voted against the proposition in regard to the period of his residence in the district, and got such other information as they could at the time and decided that Palmer had not been a resident of the district for sixty days and that he was not a legal voter. They erased the figures “69” on the tally sheets as the total vote against the proposition and in place thereof wrote the figures “68,” having first ascertained that Palmer had voted against the proposition. The judges at once certified the returns of that election as to all matters except as to the vote on that proposition. As to the proper course to pursue in reference to the vote on said proposition as it involved the Palmer vote, they called for advice from the office of the Attorney-General and from local counsel, and, on April 17, 1916, certified the vote on the said proposition as 136 for and 68 against the same. Whereupon the bonds were duly prepared and have been contracted to the defendant, the Fidelity Trust Company, their delivery being held up awaiting the result of this suit.

The plaintiff herein is a resident taxpayer in said district. On the trial counsel on both sides and the court proceeded on the theory, by them stated to be the law, that the question as to who were legal voters at that election could not be tried in this case. However, both sides offered evidence on the question as to the competency of certain ones who had voted at that election. The court heard some of the evidence and excluded some. The plaintiff offered evidence tending to prove that Carl Palmer was a legal and competent voter at that election, but, on the objection of defendants, the evidence was excluded.

It is conceded that Mr. Bryant, a member of the school board, and its legal adviser, advised Mr. Adams, the school district clerk, not to let Mr. Franklin see the school records showing the proceedings in controversy, and the clerk, pursuant to such advice, refused to let Mr. Franklin see such records. No reason was given for such refusal, and there is nothing to show that such refusal was for improper purposes, and there is no dispute as to the relevant facts in this case. There is no evidence in the case tending to show any fraudulent intent on the part of any one in connection with the matter.

I. Plaintiff has no right to complain of the exclusion of, the evidence offered for the purpose of showing that Carl Palmer was a legal voter. All parties, including the court, tried the case on the theory that such an inquiry could not be made in this case. The case must be decided here on the same theory as that on which it was tried by the parties below. [Huss v. Bakery Co., 210 Mo. l. c. 52; St. Louis v. Wright Con. Co., 210 Mo. 491.]

II. ■ Appellant contends that' the judges of the election, after having received Palmer’s ballot and placed it in the box, and after counting it against the proposition, had no right to throw it out, and deduct it from the total vote against the proposition. It has been held that the judges do have the right to exclude an illegal ballot after it has been received unchallenged and placed in the ballot box. [Hehl v. Guion, 155 Mo. 76.] The'mere fact that it has been marked on the tally sheet against the proposition does not deprive the judges of election of the power of revising their work in accordance with the facts as determined by them.

III. It is claimed that 136 votes for the proposition is not two-thirds of the total of 214 voting at such election. It is exactly two-thirds of those voting on that proposition, and we think is sufficient to authorize the issuing of the bonds. Section 12 of article 10 of our State Constitution requires “the assent of two-thirds of the voters thereof voting at an election to be held for that purpose.” That section, in the respect now under discussion has never been construed. Similar provisions in the States of Kentucky and Washington have been construed by the courts of those states as meaning that the result is to be determined by the number of votes cast on the particular proposition.

In Montgomery County Fiscal Court v. Trimble, 104 Ky. 629, a similar provision of the constitution of that state was held to require only two-thirds of the votes of those voting on the proposition. That ease overruled three prior eases and has been followed in frequent cases since. [Board of Education v. City of Winchester, 120 Ky. 591; City of Marion v. Haynes, 164 S. W. (Ky.) 79; Fowler v. City of Oakdale, 166 S. W. (Ky.) 195.]

In Fox v. City of Seattle, 86 Pac. (Wash.) 379, it was said:

“The Constitution, it will be noted, does not provide for either general or special elections so termed, but provides only for an election to be held for that purpose, and .that purpose, of course, is a special purpose. The provision in the charter that such proposition shall have then received the assent of three-fifths of the voters voting at such election construed with reference to the constitutional provision, evidently means thre%fifths of the voters who are expressing an opinion on the question discussed in the ordinance; and the question discussed in the ordinance was the question of the loan and the issuance of the bonds.”

The Constitution must be so construed as to' give effect to all its terms. If it be construed to mean two-thirds of all votes cast at an election where other matters are voted upon, then the words “for that purpose” are, in effect, stricken out of the Constitution.

The judgment is affirmed.

White, C., concurs.

PER CURIAM:

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

All of the judges concur.


text:
    GEORGE W. NEUMER, Appellant, v. JACKSON COUNTY.
    Division Two,
    July 16, 1917.
    1. FEE FOR DRAMSHOP LICENSE: Paid Under Protest: Recovery. An essential prerequisite to the recovery of a fee or tax paid involuntarily and under protest to a municipal corporation, absent a statutory rule to the contrary, is that the tax or fee was illegal. If the petition does not allege that the money paid to the county for a dramshop license was an illegal fee which the county was without authority to collect, it does not state a cause of action for its recovery.
    2. -:-: -: No City License. A mere allegation in the petition to recover a fee paid to the county for a saloon license that plaintiff “was not granted a city license,” without a statement of any fact which prevented him from procuring a city license, does not state a cause of action.
    3. —;-: Rebate. A dramshop keeper upon tho surrender of his license is not entitled to a rebate for the unexpired portion of the license.
    4. -: Recovery: Case Stated. The plaintiff applied to the county court* for a license to conduct a dramshop at a given point in a city located in the county, and was required to and did make a deposit of one hundred dollars. At the same time he applied for a city license, without which he could not conduct his dramshop. Before his application for. a city license was passed upon the county court granted his county and state license and demanded the statutory fee of $400. He protested against the payment of this fee until he had received his city license, hut was confronted with the alternative of paying said fee immediately or losing the $100 which he had deposited. He paid the fee, hut no city license was issued to him, and there is no allegation why one was not issued. Held, that his petition does not state a cause of action for the recovery of the statutory fee paid the county.
    Appeal from Jackson Circuit Court. — Hon. Frank G. Johnson, Judge.
    Affirmed.

      M. F. Bingolsky for appellant.
    (1) A license fee is not a tax but tbe price paid for a privilege. State v. Hudson, 78 Mo. 302. A tax is' a charge made for revenue. ‘ ‘ Compulsory payment, in order to be made tbe basis of a right of action may consist of different classes or characters of compulsion. It may be such a payment as was made necessary by the law, or as may arise from a legal duty to make tbe payment, or it may be such compulsion as would arise from a failure to pay, which would subject the plaintiff legally to substantial loss. If a party in order to protect his interests and rights in property makes a payment, although not compelled by any legal-force to make it, yet the failure to make it would result in the substantial loss of the rights and interests of the party to the property, this in legal contemplation would be nothing less than a compulsory payment.” Interurban Con. Co. v. Hayes, 191 Mo. 248; Westlake v. St. Louis, 77 Mo. 47; Brewing Assn. v. St. Louis, 140 Mo. 419. Protest is a declaration of opinion against something. — Web. Die. A payment of money under protest is an involuntary payment. It has been held that money paid for a dramshop license, if paid under protest, is recoverable. Catoir v. Waiter son, 30 Ohio St.' 319; Edinburg v. Hackney, 54 Ind. 83; State v. Buechler, 10 S. D. 156; Same case, 72 N. W. 114; Doolittle v. Luzerne County, 6 Kulp (Pa.), 495; Princeton v. Vierling, 40 Ind. 340. Courts of other "states have laid down the general doctrine “that taxes paid under protest áre recoverable. ” Thomas .v. Burlington, 69 Iowa, 140; Winzer v. Burlington, 68 Iowa, 279. In Buggies v. Pon du Lac, 58 Wis. 436, the court held: “Payment under protest to an officer who has a warrant for collecting taxes and who threatens levy and sale of property, is not a voluntary payment.” McQuire v. Saving Assn., 62 Mo. 343; Wolf v. Marshall, 52 Mo. 167. (2) The county of Jackson exacted $405.30 from the appellant which in good conscience and equity it should not retain. The undisputed facts on the face of the petition and the physical facts show that this appellant never opened a saloon and could not, and that the respondent knew that he could not commence selling intoxicating liquors until he had his city license. The respondent knew that appellant’s money was wholly lost to him if he did not obtain the city license. That appellant is entitled to recover his money in this action is supported by the leading case which is the law of Missouri. Sharp v. Carthage, 48 Mo. App. 26. See also Supervisors v. Manny, 56 111. 160, and Allmans v. City of Oklahoma, 95 Pac. 468, 16 L. R. A. (N. S.) 511. The court will mark with distinction, that in all the cases cited and to be cited by respondent the licensee has -opened his dramshop and obtained partial benefits and then asked for refund; while in the case at bar, appellant hadn’t even opened his saloon because of the want of city license which this respondent knew .was essential for the life of its state and county license given to appellant.

      A. L. Cooper for respondent.
    (1) The holder of an unused county and state dram-shop license cannot recover the money he paid therefor because the city wherein the saloon was to be operated later refused to grant him a city license. Fitzgerald v. Witchard, 130 Ca. 552. The case of Sharp v. Carthage, 48 Mo. App. 26, does not support appellant’s contention. On the contrary, both the majority and dissenting opinions hold that where the dramshop keeper is prevented from operating his saloon through the act of some other agency than the defendant, no recovery can be had. (2) Payment under protest is only ground for recovery when a person has been wrongfully compelled to pay an illegal tax or license. Dillon, Municipal Corporations. (5 Ed.), sec. 1617. But where (as here) the tax is legal and is collected under authority of law the fact that it was paid under protest affords no ground for relief. Express Co. v. St. Joseph, 66 Mo. 683. (3) The petition does not show that appellant was compelled to pay the fee for which he is now suing nor that the same was paid under protest. The allegations amount to no more than that the appellant paid $405.30 in order to keep the collector from applying his one hundred dollar deposit on account of the charge of‘the license granted to him.
   WILLIAMS, J.

By this action, instituted in the circuit court of Jackson County, plaintiff seeks to recover from Jackson County the sum of $405.30, which he paid the county for a state and county dramshop license.

The defendant filed a demurrer to the petition alleging that the same did not state facts sufficient to constitute a cause of action. The demurrer was sustained. The plaintiff refused to plead further and elected to stand upon his petition. Thereupon the court entered judgment in favor of the defendant. The plaintiff duly appealed.

The petition, caption and signatures omitted, is as follows:

“Now comes the plaintiff and for first amended petition and cause of action against the defendant respectfully states: ■' -
“(1) That the plaintiff is a resident of the county of Jackson, State of Missouri, residing at Kansas City, and was a resident as aforesaid, at all times, herein mentioned.
“(2) That the defendant, county of Jackson, is a public-quasi-corporation.
“(3) Plaintiff further states that on or about the 14th day of June, 1909, he duly made application in writing to the defendant for county and state dramshop licenses to open and operate a saloon at the location of 43rd and Indiana Avenue at Kansas City, Jackson County, Missouri, and presented said application to the county court of Jackson County, Missouri, now sitting at Independence, Missouri, all of which is in Jackson County, aforesaid. That the plaintiff complied with all the provisions of the Revised Statutes of the State of Missouri of 1899, as contained in chapter 22, article 1. That at the time this plaintiff deposited the sum of $100 with the county collector, Fred C. Adams, to be applied as part payment for said licenses, said deposits being made at the special request and instance of defendant.
“(4) Plaintiff further states that on or about the 15th 'day of June, 1909, this plaintiff made application to the city excise clerk addressed to the police commissioners of Kansas City, Missouri, for a city .license and deposited the sum of $250 to he applied on said license if granted, for a dramshop to he operated at the same location as aforesaid above.
■ “ (5) Plaintiff further states that he notified the county of Jackson herein through its representatives and agents, that he had made application for a city license and said defendant knew that he could not open and operate a dramshop for the sale of liquors unless he had a city license.
“(6) Plaintiff further states that on the 16th day of July Term, being July 22, 1909, Thursday, recorded in the county court Records, vol. 44, page 410, an order was made by the judges of the county court of Jackson County, Missouri, who were then duly elected and qualified to act for the county of Jackson herein, granting this plaintiff county and state licenses to open and operate a saloon at the corner of 43rd and Indiana Avenue, Jackson County, Missouri, at Kansas City.
“(7) Plaintiff further states that he was at once notified by the representatives and agents of defendant and by defendant itself, that the county and s+ate licenses were granted and that he, plaintiff, should come and pay the balance in full which was due for said licenses in order that he could conduct his saloon. That plaintiff protested in paying the balance due on said licenses as he told the defendant and its representatives and agents that he had not secured his city license and could not open his saloon until he obtained it, and protested in paving any additional money until he was granted a city license.
“(8) Plaintiff further states that defendant, by and through its representatives, agents and servants and acting for the defendant, informed plaintiff that he was compelled to pay the balance due for said county and state licenses, and if he refused, the defendant would seize and appropriate the $100 which was held by defendant, and this plaintiff knowing that he would suffer a substantial loss to his money then in the possession of defendant and this defendant knowing that plaintiff had not secured his city license, this defendant exacted under protest and by compulsion the license fee for the county and state dramshop licenses amounting in the sum of $405.30, which this plaintiff was compelled to pay to prevent the loss and confiscation of the $100 he had deposited with the defendant.
“(9) Plaintiff further -states that he was not granted a city license and the $250 deposited was returned to him and that the $100 deposited with defendant was returned, but the $405.30 was never returned to plaintiff which he paid defendant on the '3rd day of August, 1909.
“(10) Plaintiff further states that he never did open and operate a saloon at the aforesaid address and this defendant knew that he didn’t open and operate a saloon as aforesaid.
“(11) Plaintiff further states that the defendant owes and is indebted- to this plaintiff in the sum of $405.30 received by defendant, which in equity, justice and right, this defendant should return to this plaintiff, which this defendant has no legal right to retain. That this plaintiff has demanded the return of this money repeatedly from the defendant, hut this defendant refused and still refuses to return the same to plaintiff.
“(12) Plaintiff further states that he attaches and makes a part of this petition checks dated June 14, 1900; one dated June 15, 1909; and one dated August 3, 1909, respectively for the sums of $100, $250 and $405.30. Also dramshop licenses, .county and state, as exhibits, marked “A,” “B,” “C,” “D” and “E.”
“(13) Plaintiff further states that he is still the owner of said money aforesaid, and that he has not assigned or conveyed it to anyone.
“Wherefore plaintiff prays judgment against the defendant for the sum of $405.30, with interest at the rate of six per cent, per annum- from the 3rd day of August, 1909, to the present time, in addition with costs of suit.”

I. Upon a careful examination of the foregoing petition we have reached the conclusion that it does not state facts sufficient to constitute a cause of action and that, therefore, the courts’ action in sustaining the demurrer thereto was proper.

It is somewhat difficult, from appellant’s brief, to áscertain the real theory upon which pe seeks a recovery.

At one part of the brief it would appear that he seeks a recovery upon the theory that the -money was paid under- protest or duress. The facts alleged in the petition, however, do not call for an application of that theory.

In order to recover from a municipal corporation a tax or fee paid to it involuntarily and under protest, one of the essential prerequisites (among others), of the right of recovery, absent a statutory rule to the contrary, is, that it must appear that the tax or fee was illegal. [4 Dillon on Municipal Corporations (5 Ed.) sec. 1617; American Union Express Co. v. St. Joseph, 66 Mo. 675, l. c. 683.] The petition in the case at bar does not allege that the fee paid was one which was illegal and which the county was without authority to collect. For ought that appears in the pleadings, the fee was a legal one and one which the county had a right to receive. It, therefore, follows that the petition failed to state a cause of action upon that theory.

. II. At another part of appellant’s brief, it would appear that he seeks a recovery on the theory of the case of Sharp v. Carthage, 48 Mo. App. 26. In that case the plaintiff, on' September 1, 1887, obtained from the city of Carthage a dramshop license for one year. At that time he had a county dramshop license which would expire on the following November 1st. When his county license expired on November 1st, he made application to the county for a new license, but the same was denied him for the reason that on September 2, 1887, the city of Carthage (the city wherein he desired to operate his dramshop) had adopted the Local Option Law. The Court of Appeals permitted a recovery from the city of Carthage for the amount represented by the unexpired portion of the license, on the theory that the city itself, by adopting the Local Option Law, had made it impossible for the plaintiff to use his license. Without here undertaking to pass upon the correctness of that ruling (merely because not necessary to a decision here), it, at once, becomes apparent that the present facts do not call for the application of that rule, this because, in the present case, it does not. appear that any act of the county or its voters prevented the appellant from having the full .use of the license granted him. In fact the petition does not allege any fact which prevented the appellant from procuring a city license. It merely states that appellant “was not granted a city license.” It therefore follows that the petition does not state a cause of action even upon this theory.

III. The only other theory which might be urged as a basis of recovery is that a dramshop licensee upon surrender of his license is entitled to a rebate for the unexpired portion of the license.

It would appear, however, that the great weight of authority is to the effect that a recovery can not be had under those conditions, in the absence of a statute so ■authorizing.

The rule here applicable is stated in 15 R. C. L. 315, as follows: “It seems to be well settled that ordinarily a licensee does not, on the voluntary surrender of his license, become entitled to the return of the license fee, in proportion to the unexpired term, in the absence of statutory enactment to the contrary.”

To the same effect are the following authorities: Joyce on Intoxicating Liquors, sec. 330; 1 Woollen & Thornton on the Law of Intoxicating Liquors, sec. 500; case note to Allsman v. Oklahoma City, 16 L. R. A. (N. S.) l. c. 515, and cases therein cited.

The judgment is affirmed.

All concur.