source: Caselaw Access Project

author: REVELLE, J.

license: Public Domain

text:
    THE STATE ex rel. ELIZABETH C. KNISELY, Administratrix of Estate of CHARLES H. KNISELY, v. BOARD OF TRUSTEES OF YOUNG WOMEN’S CHRISTIAN ASSOCIATION et al.
    In Banc,
    May 15, 1916.
    1. PROHIBITION: Further Proceedings In Trial Court Pendente Lite. After the issuance by the Supreme Court of its preliminary rule in prohibition, and even after notice served of an intended application for the preliminary rule, the trial court should not proceed to act further in the case, but should await the action of this court; since, after the preliminary writ is granted, the court to which it is directed is without jurisdiction to proceed further.
    2. -- — : Interference with Judgment. The writ of prohibition is available to prevent any interference with or vacation of any judgment previously entered in the circuit court in pursuance to the direction of the Supreme Court. It is available not only to prevent the exercise by an inferior court of jurisdiction over a cause not given it by law, but also to keep it within the limits of its power in a particular proceeding; for instance, from interfering with a final judgment rendered by a superior court.
    3. PRIVIES IN ESTATE: Purchasers After Wrongful Approval of Final Settlement. Purchasers of property from the administrator of an estate are'in privity of estate and right with him; and if his alleged fihal settlement was void as a final settlement and, although approved as such by the probate court, was in effect and law only an annual settlement, he is bound by a judgment subsequently rendered against him as administrator of the estate, and purchasers from him of estate property, after such approval, without jurisdiction, of his final settlement, are likewise bound and take subject to such judgment.
    Prohibition.
    Writ granted.

      E. P. Johnson, Edward C. Crow and Morton Jourdan for relator
    (1) The two motions filed in the circuit court are founded on the proposition that the final settlement of July 7, 1909, of the Leathe estate was valid. If the settlement was void the motions have no legal basis on which to rest. Whether the settlement of July 7, 1909, was valid or void and whether thereafter Grace A. Leathe legally represented the estate in the suit terminating in the judgment sought by motions to be set aside was forever set at rest and is now res judicata by the decision in State ex rel. Knisely v. ITolteamp, 181 S. W. 1007. (2) Interference by one court with another court’s jurisdiction is properly prevented by prohibition. The Constitution of Missouri, art. 6-, sec. 3, gives the Supreme Court superintending control over all inferior tribunals. Neither the circuit court nor any other court can now intermeddle with or interfere with or make any order or entertain any motion or other proceeding affecting the judgment entered in said circuit court in favor of the relator as administratrix against Grace A. Leathe as executrix of the estate of Samuel H. Leathe, deceased, because the jurisdiction of the Supreme Court having attached, it excludes the jurisdiction of all other courts of even coordinate jurisdiction from attaching and interfering with the enforcement of the orders of the Supreme Court. State ex rel. v. Reynolds, 209 Mo. 188; State ex rel. v. Barnett, 245 Mo. 122. These motions are an attempt in the circuit court to oust the jurisdiction of the Supreme Court in this matter and a direct effort to defeat the judgment which was entered in pursuance of the specific direction of the Supreme Court after the Supreme Court has decided it will enforce its own mandate and enforce the very judgment sought by these motions to be vacated. (3) The executrix, Grace A. Leathe, is estopped from alleging she did not represent the Leathe estate in relator’s suit, and the respondents, Board of Trustees of Young Women’s Christian Association and the Scottish Rite Cathredral Association, being in privity of estate with her, are also estopped. State ex rel. v. Homer, 249 Mo. 76; Rogers v. Johns, 125 Mo. 216; Aubuchon v. Aubuchon, 133 Mo. 265; Woerner’s Am. Law of Administration (2 Ed.), pp. 1044-1045.

      Frank H. Sullivan and Manton Davis for respondents.
   REVELLE, J.

— Those who are interested in a more complete history than here given of the case out of which this proceeding arose are referred to State ex rel. Knisely v. Holtcamp, 266 Mo. 347; Knisely v. Leathe, 178 S. W. 453; and Knisely v. Leathe, 256 Mo. 341. For our instant purpose, it suffices to say that, after prolonged litigation, this court, on June 1, 1915, directed the circuit court of the city of St. Louis to render judgment for relator herein in the aggregate amount of $192,263.75, and that, in pursuance thereof, the circuit court, on July 2, 1915, duly entered such judgment. At relator’s instance, and in compliance with this court’s direction, this judgment was, on July 14,1915, -certified to the probate court for classification, but that court refused to classify the judgment, upon the ground that, prior thereto, it had approved an alleged final settlement of the estate, and finally discharged the executrix, and was, therefore, without jurisdictional authority to act in the matter. Immediately thereafter, to-wit, on July 30, 1915, this court issued its alternative writ of mandamus, and same was duly served upon the respondent therein, to-wit, the probate judge. Sometime thereafter, namely, on October 18, 1915> and while the mandamus cause was pending in this court, two of respondents herein, to-wit, the Board of Trustees of the Young Women’s Christian Association and the Scottish Rite Cathedral Association, filed in the court of their co-respondent, Hon. Kent Koemer, Judge of Division No. 6 of the circuit court of the city of St. Louis, a motion to vacate and set aside the judgment which it, in compliance with this court’s directions, had theretofore rendered in favor of relator. This motion to vacate was predicated upon the theory, and alleges as its grounds, that the judgment directed by this court was invalid, because the estate had theretofore been finally settled, and the executrix fully discharged. These identical propositions were relied upon by the probate court in refusing to classify the judgment certified to it in accordance with this court’s directions, and these particular questions were the only questions involved in the action then pending in this court against the probate judge. Since that time this court has made its preliminary writ of mandamus permanent, and in that case held that the alleged final settlement of July 7, 1909, was void as a final settlement, and had only the effect of an annual settlement. In that case there was directly presented and decided the identical questions which the motion to vacate the judgment involves, namely, whether the estate had been finally and fully settled, and whether the executrix was then the legal representative of the estate.

F'or the purpose of this case we shall assume that the motion to vacate the judgment is still pending in the court of the respondent herein, and that, unless prohibited, it will, as the return discloses, proceed to hear and determine the same. This we must necessarily assume, because, under our law and practice, after our preliminary writ is granted the court to which it is directed has absolutely no authority or jurisdiction to, in any manner, proceed further. It cannot entertain motions to dismiss the proceedings, or take any other action in the premises. This should be better understood by the nisi courts of this State, as our records disclose that, in some cases, after the issuance of our preliminary rule the court nisi has proceeded to act to some extent. We take this occasion to say that after the issuance of our preliminary rule, or even after notice is served of the intended application for our preliminary rule, the trial court should proceed no further, but await the action of this court.

The two respondents who filed the motion to vacate the judgment allege that they purchased the property which they now hold from Grace A. Leathe, the executrix of the estate. They are, therefore, in privity of estate and right with her, and are bound by judgments rendered against her. [State ex rel. v. Homer, 249 Mo. 58, l. c. 76; Rogers v. Johnson, 125 Mo. l. c. 202-216; Woerner’s American Law or Administration (2 Ed.), pp. 1044-45.]

Not only did this court direct in Knisely v. Leathe, 178 S. W. 453, that this particular judgment be rendered, but in State ex rel. Knisely v. Holtcamp, 266 Mo. 347, it directly passed upon the questions presented by these motions, and held not only that the judgment was valid and conclusive on all parties, but that relator had the legal right to have same satisfied out. of the assets of the estate. Had the circuit court refused to enter the original judgment as directed by this court, our writ of mandamus was available to compel compliance with that direction (State ex rel. Knisely v. Holtcamp, supra, and cases cited), and for similar reasons onr writ of prohibition will lie to prevent any interference with or vacation of that judgment. The question of one court intermeddling or interfering with the jurisdiction of other courts was likewise discussed in the case of State ex rel. Knisely v. Holtcamp, and we are satisfied with the views there expressed. At the time these motions were filed this court had not only held this judgment to be valid and binding’, but there was pending- at that time in this court another action involving the identical questions, and while these respondents were not direct parties thereto, they are in privity with those who were parties, as is.apparent from the allegations in their motion. This court having at that time complete jurisdiction of the subject-matter, the circuit court had no authority to entertain jurisdiction. To hold otherwise might result in the unseemly spectacle o.f a circuit court setting aside a judgment directed by this court, while at the very time this court had decided, in a proper proceeding, that the judgment wq,s valid and must be enforced. As said in State ex rel. Knisely v. Holtcamp, supra, l. c. 366: ‘ The law must be so construed as' to avoid clashes and conflicts between courts and their jurisdiction, otherwise confusion and chaos will come out of what is' intended as order.” When rights have been fully and finally determined, there should be an end to their litigation. Final judgments should be final, and the courts rendering them should not be trifled with. The writ of' prohibition is available to keep a court within the limits of its power in a particular proceeding, as it is to prevent the exercise of jurisdiction over a cause not given by law to its consideration. Wherever judicial functions are exercised which do not rightfully belong to the court attempting to exercise them, the writ is applicable. It is our opinion that the preliminary writ heretofore issued should be made permanent, and is so ordered.

All concur.


author: FARIS, P. J.

text:
    THE STATE OF MISSOURI, Appellant, v. FRANK B. LOGAN.
    Division Two,
    May 31, 1916.
    1. RECORDER OF DEEDS: Special Law: Applicable to Counties Having Two Circuit Courts. The Act of March 25, 1913, Laws 1913, p. 709, the first section of which provides that in all counties “which now contain or may hereafter contain 80,-000 or more inhabitants and less than 150,000 inhabitants, in which circuit court is held in two or more places in said county” the salary of the recorder of deeds shall be two thousand dollars, not only is a local or special act, but a general act on the subject could have been made applicable.
    2. -: ——: ——: Judicial Notice: Additional Legislation Necessary. The court takes judicial notice that there are three counties which have the population required by said act, but that there is only one (Jasper) with that population in which circuit court is held in two or more places, and that no other county now having or that may hereafter ¿ave that population can acquire the additional circuit courts without further legislation; and, hence, as the duties of the recorder are in no wise different in that one county from such officer’s duties elsewhere, the act is class legislation.
    Appeal from Jasper Circuit Court. — How. D. E. Blair, Judge.
    Affirmed.

      John T. Barker, Attorney-General, Lee B. Ewing, Assistant Attorney-General, and S. W. Bates for the State.
    (1) A statute duly enacted hy the Legislature is presumed to be constitutional until the contrary appears beyond a reasonable doubt. State v. Cantwell, 179 Mo. 261; Ex parte Loving, 168 Mo. 203; State v. Aloe, 152 Mo. 477. (2) A legislative act general in its nature but creating certain classifications, based upon differences in population alone, is a valid act. Such an act as the one here in question, relative to the fees of county officers, does not conflict' with the Constitution, because the Constitution itself recognizes a classification for the purpose therein, based solely on population. The classification is not arbitrary or unreasonable. Constitution, sec. 12, art. 9; State ex inf. v. Tobacco Co., 177 Mo. 1; State ex rel. v. Marion County Court, 128 Mo. 442; State ex rel. v. Miller, 100 Mo. 439; State ex rel. v. Tolle, 71 Mo. 645. (3) The Act of 1913 (Laws 1913, pp. 709, 711) is prospective in its operation and applies to all counties now having or that may hereafter have the requisite population, and in which circuit court is held in two or more places. The act cannot be construed to apply only to the present time, nor can it be held local or special for such reason. Ex parte Lucas, 160 Mo. 230 ; State ex rel. v. Marion County Court, 128' Mo. 437. It is contended that the clause “in which circuit court is held in two or more places in said county” makes the act apply only to the present and prohibits it from being prospective .in its operation. This is ■ a very hypercritical view of the matter. By reading the clause immediately preceding it is plain that it was the intent of the lawmakers to make the act prospective in its operation. All the parts of the act must be construed together and the intent of the Legislature determined by such construction. Provisions very similar to the clause relative to circuit courts in the instant act have been held prospective in their operation and valid for that reason. State ex rel. v. (Marion County Court, 128 Mo. 437; Ex parte Lucas, 160' Mo. 230. (4) A legislative act general in its terms, but operative in only one, or at most a few counties, by reason of exceptions and limitations therein, and the operation of which can only be extended to other counties by subsequent legislative action, is a special and local law and is violative of section 53, article 4, of our Constitution. Hays v. Mining & Milling Co., 227 Mo. 306; State ex rel. v. Messerly, 198 Mo. 351. (5) A law general in its terms, but wbicb is restricted to a particular class, must be based upon a classification that is reasonáble, and not upon a mere arbitrary division having no logical or reasonable relation to the purpose of the act. State ex rel. v. Southern, 177 S. W. 6401; State ex rel. v. Roach, 258 Mo. 541; State ex rel. v. Miller, 100 Mo. 439; State v. Tates, 66 Ohio St. 546; Village of Bloomer v. T'ownj 128 Wis. 297; Strong v. G-igman, 207 111. 385; Grove v. County Court, 42 W. Va. 587; Fraley v. Phelan, 125 Cal. 185. If there is any reasonable relation between the duties of a recorder, probate judge and county collector, and the number of places in which circuit court is held in a particular county, then a classification based upon the number of places in which circuit court is held is a valid and a reasonable classification. Upon the other hand, if the duties of a probate judge, county collector and county recorder bear absolutely no relation to the number of places in which circuit court is held in a particular county, then such classification is purely arbitrary and not such as would form a valid basis for a law resting upon same.

      Thomas & Hackney and Gray & Gray for respondent.
    (1) Section 12 of article 9 of the Constitution provides that the General Assembly shall, by law uniform in its operation, provide for and regulate the fees of all county.'officers and for such purpose may classify the counties by population. By section 53 of article 4 the General Assembly is prohibited from passing any local or special law on the following subjects: “Regulating the affairs of counties,” etc., “creating offices or prescribing the powers and duties of officers in counties,” etc., and “where a general law can be made applicable no local or special law shall be enacted, and whether a general law could have been made applicable in any case is hereby declared a .judicial question, and as such shall be judicially determined without regard to any legislative assertion on the subject.” The act on which this information is based violates all of the above provisions of the Constitution.- The act purports to effect only the offices of collector, recorder, prosecuting attorney and probate judge, and as to such officers only in counties having at the time the act was passed or at any time thereafter, a population not less than 80,000 and not more than 150,000, and in which, at the time the act was passed, circuit court was held in more than one place. (2) The act as passed could only apply to Jasper County. While Buchanan and St. Louis Counties were within the limits of the population requirements, yet circuit court was held in only one place in said counties, and therefore they were excluded. Nob withstanding the office of the recorder of deeds of Jasper County has nothing whatever to do with the circuit court, yet, he is put in a class by himself and separated from the law governing the other 114 recorders in the State, simply because circuit court is held in more than onej place in his county. This is certainly a special law. The true practical limitation of the legislative power to classify is that the classification shall he upon some apparent natural reason, some reason suggested by necessity by such a difference in the situation and circumstances of the subjects placed in different classes as suggest the necessity of different legislation with respect to them. State ex rel. v. (Miller, 100 Mo. 439; State ex rel. v. Messerly, 198 Mo. 351; Bridges v. Mining Co., 252 Mo. 53; State ex rel. v. Roach, 258 Mo. 541; Hays v. Mining Co., 227 Mo. 288.
   FARIS, P. J.

— On the 4th of May, 1915, the prosecuting attorney of Jasper County filed in the circuit court of that county an information against the respondent, which consisted of three counts, similar each to the other, barring the names of the months severally set out therein. The caption and formal parts omitted, the first count of said information is as follows:

“S. ~W. Bates, prosecuting attorney, within and for the county of Jasper and State of Missouri, upon his official oath informs the court that Frank B. Logan, on the 31st day of January, 1915, at said county of Jasper and State of Missouri, was then and there and had been since January 1, 1915, an officer duly elected and qualified under the Constitution and laws of the State of Missouri, to-wit, recorder of deeds of the said county and, by virtue of his office as such recorder of deeds, had the authority to collect and did collect the fees and public moneys which accrued to o said office during said month of January, 1915, hut that said defendant did, at the end of said month of January, 1915, unlawfully and wilfully, fail, refuse and neglect to pay over to the county treasurer of said Jasper County, all moneys collected by him as fees, under color and by virtue of said office during said time, as aforesaid, take two receipts therefor and file one with the county auditor of said Jasper County, and did then and there, unlawfully and wilfully fail, refuse and neglect to make out an itemized and accurate list of all fees in his said office which had been collected by him, under color and by virtue of said office, and a list of all fees due his office which had not been paid during said time aforesaid, give the name or names of the person or persons paying or owing the same and that he had been unable, after the exercise of diligence, to collect the part returned unpaid, and verify the same by affidavit, according to the statute in such cases made and provided, and against the peace and dignity of the State.”

To this information and to each count thereof defendant filed his motion to quash, raising inter alia by this motion the constitutionality of an act approved March 25, 1913. [Laws 1913, p. 709.] The pertinent portions of this motion to quash, caption and formal parts omitted, are as follows:

“Because each count in said complaint and information is based upon an alleged act of the Legislature of the State of Missouri approved March 25, 1913, and said act is unconstitutional for the reason that it is a special and local act and a general act could have been made applicable, and for said reason said act is in conflict with section 53 of article 4 of the Constitution of the State of Missouri.
“That said act is unconstitutional and violates said provision of the Constitution for the reason that it undertakes to fix the salary of the relator with reference to the number of places that circuit court is held in the county, while the office of the relator has nothing to do with the circuit court.
“That said act also violates said section of the Constitution because it makes no provision for similar counties in which circuit court may hereafter be held in more than one place. ’ ’

The circuit court of Jasper County, when the motion to quash came on to be heard, sustained the same upon the ground that the act in question is unconstitutional and rendered judgment in due form quashing the information and discharging defendant. From this judgment of the circuit court the State has appealed.

Manifestly the only question for determination by us is the constitutionality vel non of the act in question, and to this our discussion will be limited.

It is conceded, we assume, by both the State and the defendant for the purposes of this case, that' the information set out above and which was quashed by the learned court nisi, was erroneously quashed if sections 1 and 6 of the act of March 25, 1913 (Laws 1913, pp. 709, 710 and 711), are constitutional.

Suggesting (for that it is to a degree involved in the main point), but without deciding, the question whether section 6 does not either make a new and local crime of divers and sundry acts and omissions already denounced by other general statutes, or make acts, or omissions to act crimes in Jasper County, which elsewhere in the State are not crimes, we come to the blunt question in this case: Is section 1 of the above act unconstitutional because violative of the prohibition against class legislation? This section reads thus:

“From and after the expiration of the term of office of the present incumbent, the following salaries per annum shah be paid the hereinafter named officers of all counties in this State, which now contain or may hereafter contain 80,000 or more inhabitants and less than 150,000 inhabitants, in which circuit court is held in-two or more places in said county, viz: Collector of revenue, three thousand five hundred dollars; prosecuting attorney, three thousand five hundred dollars; judge of the probate court, two thousand dollars ; recorder of deeds, two thousand dollars. All of said salaries to be paid in monthly installments on the first day of each month.”

Since certain matters are judicially noticed by us, to-wit, (a) that only Buchanan, Jasper and St. Louis counties have populations between 80,000 and 150,000 but (b) that neither in St. Louis County nor in Buchanan County is circuit court held in two or more places, we come to notice judicially that the act in question now applies solely to Jasper County, wherein circuit court is held both at Joplin and at Carthage. We also know that while other counties may in time acquire the needed population to bring them within the act, they cannot without further or additional legislation acquire the requisite circuit courts, or places of holding circuit court so as to bring them within the act. [Hays v. Mining Co., 227 Mo. 288.] Likewise, we take notice of the nature of the duties which are by public statute required to be performed by recorders of deeds throughout the State, and know that these duties (absent at least another section of the act under discussion) are in nowise different in Jasper County from such officer’s duties elsewhere in the State.

Thus noticing the salient facts and the law applicable to them, and measuring these by the Constitution, is the act local or special? Judicially regarded, if it is local or special, could a general law be made to apply? We think both these questions must be answered in the affirmative; that, so far at least as regards the question intimately involved in this case, the law is local and special in a matter wherein, by reason of the facts, a general law can be made applicable. [Constitution 1875, sec. 53, art. 4.] So, also, other provisions of the act would seem to violate subdivision 15 of said section 53 of the Constitution, in that special duties are by the provisions of sections 3 and 4 of the act put upon the recorder of deeds of the county of Jasper, to which alone the act is applicable. But all these matters are in a way cognate to the question whether the act is so-called “class legislation,” and forbidden by the Constitution. When we answer the -latter question in the ■ affirmative, as we do, other germane objections become merely academic. So, upon the bare statement of the case it seems so patent that it falls within that class of legislation discussed and banned by State ex rel. Garesche v. Roach, 258 Mo. 541; State v. Anslinger, 171 Mo. 600; State ex rel. v. Miller, 100 Mo. 439; State ex rel. v. Messerly, 198 Mo. 351; Bridges v. Mining Co., 252 Mo. 53; Hays v. Mining Co., 227 Mo. 288, and State ex rel. v. Southern, 265 Mo. l. c. 286, that further discussion would but use time and space, without shedding further light.

To hold without exception or limitation that the mere observance by the Legislature of matters of outward form, in that a given act scrupulously adheres in such matters to well-settled and permissible classifications, is to practically render nugatory the grant of power to the judiciary, by the makers of the Constitution, to determine as a judicial question the potential applicability of a general law. If it is within the power of the lawmaking body by a strict adherence to mere permissible forms of classification to make a special law constitutionally valid, then the provision for the judicial determination of the question of applicability manifestly becomes a dead letter. Clearly, questions of applicability of a general law must be resolved by the judiciary on the tests of the necessity of a local law, for that is what “applicable” refers to. In turn necessity must be resolved by a consideration of the difference in, ern, supra),.and is, we think, wholly subversive of the objects to be effected by the law. A mere arbitrary classification is both forbidden (State ex rel. v. Southern, supra), and is, we think, wholly subversive of the wise and far-sighted relegation to judicial determination of the matter of applicability of a general law.

Returning to the case at bar, there can be seen no valid way wherein the fact of the holding of the circuit court at two or more places in a county should in any material degree affect the office or duties of the office of recorder of deeds. Therefore, the rule of excusing an otherwise special law for necessity’s sake fails wholly. So much therefore of the act under discussion (Laws 1913, pp. 709-711) as affects the recorder of deeds of Jasper County, is in our opinion unconstitutional for that it is a local or special law. It follows that defendant is guilty of no offense in refusing to observe the provisions of said act and that the judgment nisi must be affirmed. It is so ordered.

All concur.


author: WALKER, J.

text:
    THE STATE v. SCULLIN-GALLAGHER IRON & STEEL COMPANY, Appellant.
    Division Two,
    May 31, 1916.
    1. FOUNDRIES: Toilet Rooms:'Constitutional Statute. The Act of 1913, Laws 1913, p. 401; requiring every corporation or person engaged in operating a foundry in which ten or more men are employed to provide suitable toilet rooms, containing washbowls or sinks provided with runni lg water, hot and cold)' and water closets connected with running water and a suitable room, properly heated and ventilated, wherein the men may change their clothes, is a reasonable exercise ot the police power and is constitutional, since the employment is such that it subjects those engaged in it to extreme changes of temperatures, exposure to dirt and danger, and demands great endurance.
    2. ———: -- — : Special Law. Said act is not a special law; it is not an arbitrary singling out of one of the many forms of industrial activity. Foundries are not a subdivision of factories, but a class within themselves.
    Appeal from St. Louis Court of Criminal Correction.— Hon. Calvin N. Miller, Judge.
    Affirmed.

      Schnurmacher & Rassieur for appellant.
    The act in question is a special law, although a general law might have been made applicable and it, therefore, violates sub-division 32 of section 53 of article 4 of the Constitution of Missouri. And since said act, imposes certain burdens upon the owners of foundries, without imposing a similar burden upon other like establishments, where ten or more men are employed, it also violates sub-division 26 of section 53 of article 4. The act also violates section 1 of the Fourteenth Amendment to the Constitution of the United States, in that it unlawfully abridges the privileges and immunities of this defendant and denies it the equal protection of the laws. State v. Bottling Co., 261 Mo. 300; State ex inf. v. Southern, 265' Mo. 286; State v. Baskowitz, 250 Mo. 82; State v. Miksicek, 225 Mo. 561; Woolley v. Mears, 226 Mo. 41; State ex rel. v. Ashbrook, 154 Mo. 375; State v. Thomas, 138 Mo. 100; State v. Walsh, 136 Mo. 405; State v. Julow, 129 Mo. 163; State v. Loomis, 115 Mo. 307.

      John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State.
    (1) Every act of the Legislature, duly passed, is presumed to be valid and constitutional. The burden is upon him who attacks its constitutionality to clearly show that it is violative of some constitutional provision. Ex parte Loving, 178 Mo. 203; State v. Cantwell, 179 Mo. 280; State v. Aloe, 152 Mo. 477; Pike v. Thompson, 144 Mo. 322; State ex rel. v. Pike County, 144 Mo. 280; Railroad v. Andrews, 174 U. S. 96; Atkins v. Kansas, 191 IT. S. 223. (2) Where there is doubt as to the constitutionality of an act, it will be resolved in favor of the validity of the act. No act of the Legislature will be deemed unconstitutional unless it appears so beyond a reasonable doubt. If reasonable minds might differ as to the constitutionality of legislation, it will be upheld as constitutional by the courts. State v. Cantwell, 179 Mo. 280’; Ex parte Loving, 178 Mo. 321; State v. Abel, 65 Mo. 357; County v. Gris-wold, 58 Mo. 192; Coal Co. v. State, 17 L. R. A. 385; Atkins v. Kansas, 191 U. S. 207; Railroad v. Williams, 199 N. Y. 127; Munn v. Illinois, 94 U. S. 123. (3) The expediency or inexpediency of an act is a question for the Legislature and not for the courts. The judiciary cannot inquire into motives and necessities which may have superinduced the passage of the act. Brown v. Cape Girardeau, 90 Mo. 383; County v. Griswold, 58 Mo. 192; State v. Hayes, 49 Mo. 604; Bennett v. Boggs, 1 Baldwin (TJ. S.), 74; Atkins v. Kansas, 191 U. S. 207; Mnnn v. Illinois, 94 U. S. 113. (4) The act is not a special act hnt relates to all persons- of the class mentioned therein. State ex rel. v. County Court, 128 Mo. 427; Eltinge v. Hickman, 172 Mo. 257; State v. Webber, 214 Mo. 277; State ex rel. v. Taylor, 224 Mo. 477; State v. Railroad, 229' Mo. 239; State ex inf. v. Southern, 265 Mo. 286; Railroad v. Arkansas, 219 U. S. 466. (5) The act is not class legislation. State v. Cantwell, 179' Mo. 254; Luther v. Saylor, 8 Mo. App. 424; Hammon v. Coal & Coke Co., 156 Mo. 232; State ex rel. v. Mercantile Co.; State v. Tower, 185 Mo. 19; State v. Swagerty, 20*3 Mo. 517; State v. Webber, 214 Mo. 272; State v. Miksieek, 225 Mo. 561; White v. Railroad, 230' Mo. 287; Advertisement Co. v. St. Louis, 235 Mo. 99; State v. Railroad, 242 Mo. 339; Embree v. Road Dist., 257 Mo. 593; Mueller v. Oregon, 208 U. S. 410; Harbison v. Iron Co., 183 U. S. Í3; People v. Lochner, 177 N. Y. 145; Ritchie v. Wayman, 224 111. 509. (6) In passing upon the constitutionality of a given act of the legislative department of the government, courts will give-great weight to history of contemporaneous legislation upon such questions, and the fact that such legislation has long stood upon the statute books unchallenged is strongly persuasive of its constitutionality. The law is a progressive science and adapts itself to changing conditions. The Legislature is the representative body of the government, and, as all governmental power emannates from the people, this representative body has the right to declare the public policy of the State. Miller v. Oregon, 208 U. S. '420; Patterson v. Bark Eudora, 190- U. S. 169; Coal Co. v. West Virginia, 17 L. R. A. 385; State v. Loomis, 115 Mo. 324; Holden v. Hardy, 169 U. S. 387; McLane v. Arkansas, 211 U. S. 539; Ex parte Loving, 178 Mo. 202.
   WALKER, J.

— This suit, in the nature of a criminal proceeding, was instituted by information in the St. Louis Court of Criminal Correction against the defendant for failing to comply with an act of the General Assembly (Laws 1913, p. 401) requiring foundries to provide for their workmen certain sanitary conveniences described in the act. Upon a trial the defendant was found guilty and fined fifty dollars, from which it appeals. The constitutionality of the act is assailed, hence our jurisdiction. The portion of the act necessary to he considered is as follows:

“Every corporation, company or person in this State engaged in operating any foundry in which ten or more men are employed is hereby required to provide suitable toilet rooms, containing washbowls or sinks provided with running water, hot and cold, water closets connection with running water and a suitable room or place wherein the men may change their clothes, said room to be directly connected with the foundry building, properly heated, ventilated and protected with a suitable locker or place to properly change his clothing or wearing apparel.”

The purpose of this statute is commendable. Primarily it is intended to improve the sanitary conditions under which a class of workmen labor. The nature of their employment, speaking from .the commonly accepted knowledge of the vocation they pursue, of which we are entitled to take notice, is such that it subjects those engaged in it to extreme changes of temperature, exposure to dirt and danger, and demands great endurance. Laborers thus environed are entitled to the utmost exercise of the State’s police power in their behalf, consonant with a reasonable interpretation of constitutional limitations. The enactment of laws of-the character here under review must be such as upon a fair analysis will not subject the State to the charge of bestowing a favor. “The State,” said a great commentator on constitutional law, “has no favors to bestow.” [Cooley’s Con. Lim (7 Ed.), p. 563.] Its purpose wisely directed is, while legislating for the betterment of its citizens, to so frame its laws as to inflict no arbitrary discriminations nor confer any privileges no.t common to the class included within the law. In thus exercising its police power it must of necessity classify the objects of legislation, and in such classification a wide range of discretion is not improper. [Fidelity Mut. Life Assn. v. Mettler, 185 U. S. 308.] A law enacted for the common good is to. be liberally construed; and a like rule may, without violating the canons of construction, be applied within reasonable limitations to an enactment which extends only to a class.

In the construction of such a statute as we have here, certain well established rules are to be observed, to-wit: its enactment is accompanied by a presumption of validity, and the burden is on him who asserts to the contrary (Shohoney v. Railroad, 231 Mo. 131; State ex rel. v. Williams, 232 Mo. 56; State v. Parker Dist. Co., 236 Mo. 219; Miners’ Bank v. Clark, 252 Mo. 20); every reasonable intendment must be made in favor of the validity of the statute, and its unconstitutionality must appear beyond a reasonable doubt (Bledsoe v. Stallard, 250 Mo. 154; Board of Commissioners v. Peter, 253 Mo. 520; State v. Buente, 256 Mo. 227); nor will courts inquire into the wisdom or expediency which prompted the enactment of the statute; this is for the Legislature (State v. Smith, 233 Mo. 242; Ex parte Welborn, 237 Mo. 297).

It is contended that the act in question is special in its application in that it is said to arbitrarily and unjustly make one of the many forms of industrial activity the object of legislation and thereby except others of the same natural class from its provisions. The concrete contention is that foundries are by the act subjected to regulations from which other employers of labor are by exclusion exempted; that the act, to have met the constitutional requirement against special legislation, should have been directed against “establishments” generally and not “foundries” particularly. This attempted generalization is too broad and would in its application render the law vague and indefinite. The word establishments means nothing more colloquially or legally than the word institutions. [Trustees, of Academy v. Bohler, 80 Ga. 159.] It is usually applied to concerns of a public nature and frequently includes the places where they are conducted as well as the physical things connected therewith. [Lane v. Smythe, 46 N. J. Eq. 443; Boon v. Moss, 70 N. Y. 465.] In the vernacular of the early French settlers of this State the word “establishment,” the same as our English word establishment, meant nothing more than is implied by the word settlement. [Dent v. Bingham, 8 Mo. l. c. 596.] It is evident, therefore, that the word sought to be substituted for the word foundries, under the contention of appellant, if construed either according to its ordinary meaning or as judicially defined, would fail on account of its generality to effect the purpose intended by the act. Nor is this all. If the act was thus generalized it could not with certainty, such as is required of a criminal statute, he made applicable to any form of industrial activity and as a consequence it would be rendered nugatory. Further heeding the contention of defendant, it is said the act contains an arbitrary classification, by which is meant one not based on such a difference in the situation and circumstances of the subjects classified as to render it necessary and proper to enact legislation in regard thereto. [State ex rel. v. Cooley, 56 Minn. 550.]

Foundries are said by the courts to he works for the casting of metals. [Benedict v. New Orleans, 44 La. Ann. 793.] Thus defined they cannot either in technical terms or popular parlance he considered as a subdivision of the general term factories or manufactories, and hence they constitute a class within themselves. Thus classified, we find that the conditions and circumstances under which, foundry men work are different fr-om those of other workmen, and that such difference is sufficient to authorize the enactment of a law in the exercise of the State’s police power to ameliorate their condition. The act, under this state of facts, cannot he said to create an arbitrary classification and is not subject to criticism as á special law.

There runs through the history of our legislation a well marked line of acts regulating the conditions of labor in different vocations. Many of these have received judicial sanction. Note the following: Fixing the maximum amount of damages that may he recovered for the wrongful death of a miner, different from that allowed for the death of another under the general law (Hamman v. Central C. & C. Co., 156 Mo. 232); requiring screens to he built around vestibules of electric cars for the protection of motormen — no such protection' afforded cars having other motive power1 than electricity (State v. Whitaker, 160 Mo. 59); imposing a burden upon railroad companies in regard to their employees not required of other common carriers or employers (Powell v. Sherwood, 162 Mo. 605); an ordinance of the city of St. Louis exempting keepers of meat shops from the statutory provisions of the Sunday law by authorizing them to keep open until nine o ’clock in the morning of that day (St. Louis v. DeLassus, 205 Mo. 578).

We point to these precedents not as necessary to establish the validity of the act in question; this has been done by determining the meaning of its terms and the legislative intent in its enactment. The precedents, however, serve the purpose of emphasizing the rule that exceptions founded on reason may be made in an act to a general statute or ordinance without infringing the constitutional inhibition against special legislation.

From all that has been said the judgment of the •trial court should he affirmed and it is so ordered.

All concur.


text:
    THE STATE v. L. A. JAMISON, Appellant.
    Division Two,
    May 31, 1916.
    1. FALSE PRETENSE: Based on Contingency. Under Sec. 4566, R. S. 1909, a conviction for larceny cannot stand upon proof showing that the person defrauded intentionally and for the identical purpose urged upon him by defendant parted with his money upon an agreed and well understood contingency.
    .2. .-: Falsely Representing the Law. No felony can be committed in this State by falsely or mistakenly representing the domestic law to be that which it is not.-
    3. -: -: Homestead Law. Defendant claimed to own “squatters’ rights” on a large tract of land in Arizona, and represented to the prosecuting witness that he could get title to a half section of it without living on it, and that all he would have to do would be to go out and see the land and then when the Government surveyed it to go again and file on it, and by.that means and in reliance thereon the witness was induced to contract for the land and to part with $125 on condition -that defendant would maintain a squatter’s right in the witness’s interest until he secured a deed from the Government. Meld, that the pretense relied on, though false, was as to the requirements of the Homestead Law; and it is not a crime, under Sec. 4565, R. S. 190i9', to obtain money or property by falsely representing the status of the domestic law.
    4. -: —«—: Theory for Holding: Ignorance of Law: Deception. It does not greatly matter whether the rule that to obtain money or property by falsely representing the domestic law to be that which it is not does not constitute a felony, is reached upon the theory that ignorance of law excuses no one and all men are presumed to know the law, or is based upon the other theory that no criminal false pretense may be bottomed upon a representation whose truth or falsity is as open to ascertainment by him to whom it is made as by him who makes it.
    5. -: Strict Construction in Criminal Case. It is one of the canons of the criminal law, out of tenderness and regard for life and liberty, that a rule of law is to be construed more strictly in a criminal case than in a civil one. Even in a civil case a misrepresentation or misunderstanding of the law will not vitiate a. contract, where there is no misunderstanding of the facts.
    6. -: Puffing. Faise representations touching land sold to another which amount to mere puffing are not actionable.

      Appeal from Jackson Criminal Court. — Hon. Edward E. Porterfield, Judge.
    Reversed and defendant discharged.

      Calvin & Rea for appellant.
    (1) The testimony affirmatively established the fact that the prosecuting witness, T. M. Brown, parted with the title and possession of the money in question solely upon his belief in and in his reliance upon the ¿Ileged statement made to him by the defendant to the effect that he, Brown, did not and would not have to become a resident upon the land in question in order to obtain title thereto from the government. Such a statement could not, in law, become the basis of a false representation or pretense; and the testimony therefore wholly fails to sustain the conviction. Jones on Evidence (2 Ed.), sec. 26; Upton v. Tribilcocli, 91 U. S. 45; Fish v. Cleland, 33 111. 243; Clodfelters v. Hewlitt, 72 Ind. 137; Burt v. Bowles, 69 Ind. 1; Ins. Co. v. Reed, 33 Ohio St. 283; Belfast v. Borne Co., 40 Ala. 50 ; Jagger v. Winslow, 30 Minn. 263; Gormley v. Gymnastic Assn., 55 Wis., 350; Thompson v. Ins. Co., 76 Me. 55. (2) The testimony also_ affirmatively established the fact that the prosecuting witness, T. M. Brown, intended to, and that he did, part with the title to, as well as with the possession of the money in question; and, granting that the means by which defendant acquired the same amounted, in law, to a false pretense, still the testimony is wholly insufficient to sustain the conviction. State v. Buck, 186 Mo. 19; State v. Anderson, 186 Mo. 35; State v. Copeman, 186 Mo. 118. (3) The other alleged false representations and pretenses disclosed in the testimony (though not believed to be true or relied upon by the prosecuting witness, T. M. Brown) constituted no more than representations of future events; promises, mere matters of opinion or exaggerated praise, and the same could not, in law, be made the basis of a prosecution for false pretenses. Stocking v. Howard, 73 Mo. 25 ; State v. Delaney, 93 Mo. 98; State v. Petty, 119 Mo. 425; State v. Marion, 235 Mo. 359; People v. Majorana, 140' N. Y. Supp. 8, 155 App. Div. 431; People v. Miller, 169 N. Y. 339; People v. Blanchard, 90 N. Y. 314.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1)_ "While ignorance of the law cannot be pleaded as an excuse for crime, yet knowledge of the law for all intents and purposes will not be imputed to every one. Ryan v. State, 104 Ga. 73; State v. Bourne, 86 Minn. 432; State v. Stewart, 9 N. D. 409; Brent v. State, 43 Ala. 297; Osineup v. Heuthom, 46 L. R. A. (N. S.) 174; "Windram v. French, 8 L. R. A. 750. Contra: State v. Lawrence, 178 Mo. 350. (2) Although the pretense must be an inducing cause of the owner’s parting with his money, it need not be the sole inducing cause; it is sufficient if it had a material influence in inducing the owner to part with his property, although he was. also influenced in part by other causes. State v. "Willard, 109 Mo. 242; State, v. Dexter, 87 N. W. (Iowa) 418; State v. Carter, 83 N. "W. (Iowa) 716; State v. Nine, 74 N. W. (Iowa) 945; 19 Cyc. 407; State v. Donaldson, 243 Mo. 476. (3) In a prosecution for obtaining money or property under false pretenses when" more than one such pretenses are charged, the proof of any one will sustain the charge. State v. Keyes, 196 Mo. 163. (4) "When the false pretenses are calculated to deceive the pferson to whom they were made, and are not absurd or irrational, and the party relying on them has not the means at hand at the time to detect their falsity, the failure of such party to investigate the truth of them is no defense to the party making them. State v. Keyes, 6 L. R. A. (N. S.) 369; State v. Donaldson, 243 Mo. 476; 2 Wharton’s Crirn. Law, sec. 1453. (5). The testimony in the case shows that the prosecuting witness did not •part with the title to the money, hut paid it to defendant with the understanding and express agreement that it was to he returned to him in the event he did not find the land as represented, and the land being misrepresented, the defendant on demand refusing to pay the money back, was guilty of grand larceny. Hunt v. State, 65 L. R. A (Ark.) 71; Morton v. Com., 52 L. R. A. (N. S.) 1222; State v. Buck, 186 Mo. 19; State v. Anderson, 186 Mo. 35; State v. Copeman, 186 Mo. 118; People v. Miller, 169 N. Y. 344.
   FARIS, P. J.

— Defendant was convicted in the Criminal Court of Jackson County of grand larceny, under the provisions of section '4566, Revised Statutes 1909, and his punishment assessed at imprisonment in the State penitentiary for a term for two years. Pursuant to the usual procedure he has appealed.

''While the conviction here is, as stated, for grand larceny, it is for that alleged sort of grand larceny which the statute supra says may be bottomed upon false pretenses. So leaving out of view all questions regarding the legal propriety of such a conviction, because not involved in the conclusions we have reached, we are yet upon any view compelled to approach it on the theory that if it be grand larceny it is so only because it involves obtaining money by such false pretenses as constitute grand larceny. Therefore, absent such false pretenses as are criminal, it is obvious that there can be no grand larceny in the case.

Looking therefore to the facts upon which the alleged false pretenses are bottomed, we find these facts to run substantially thus: The prosecuting witness, one T. M. Brown, was at all the times mentioned in this record engaged in business as a merchant in Kansas City, Missouri; the defendant seems to have been engaged in business as a druggist in said city. Upon a time shortly prior to the happening of the matters and things set forth in the record before us, defendant seems to have begun to exploit a real estate scheme upon certain lands said to be situated in Pipe Valley in Mohave County, Arizona, and on which' defendant claimed that his brother and he held a 4 4 squatter’s right. ’ ’ The prosecuting witness Brown (hereinafter simply so called for brevity) heard of the alleged “squatter’s right” which defendant claimed to have on this land, and being desirous, seemingly, of getting in on it, called defendant up on the telephone. Defendant came to see Brown and they began discussing this land .proposition. According to Brown, defendant represented to him’ that defendant’s brother, C. B. Jamison, and defendant, as partners, had secured the aforesaid 44squatter’s right” to something like 50,000' acres of Government land in northern Arizona, to-wit, in Pipe Valley, Mohave County; that they were locating people upon this land; that they had already placed about a hundred persons there; that it was fertile soil with plenty of moistqre for dry farming and with artesian water obtainable at shallow depths, and in a beautiful flower-filled valley which would raise anything, and which would furnish and was furnishing grass and pasture for thousands of lowing kine. After defendant had explained the desirability and beauty of this land to Brown and its availability for homesteading, Brown says they had further converse thus: “I says, 4 It would be impossible for me to take up that land; you and I all know to homestead or anything like that, you have to live on it about seven months out .of the year.’ I says, 41 could not leave my business and go out and stay seven months in the year.’ He says, 4 Mr. Brown, you would not have to do that; you can get this land absolutely without living on it; all you have to do is to go out and see the land and when the Government surveys it you will go out and file on it,’ and then there was something like seventeen dollars for filing; ‘then you can stay in Kansas City or Egypt and get this land.’ He told me that the homestead laws of the United States did not require me to live on this land. ’ ’

After some further conversation and discussion of the matter Brown and the defendant entered into a written contract, under the terms of which Brown paid to defendant the sum of $125' in cash, which sum constitutes the property herein alleged to have been obtained by false pretenses, and agreed upon a contingency therein named, and below made clear in the instrument we set out, to pay to him an additional sum of $125. The cash payment made by Brown to defendant was, upon the contingency set forth in said contract, to be returned. This agreement is as follows:

“This agreement entered into this 12 day of August, 1912, by and between L. A. Jamison of Kansas City, Missouri, and O. B. Jamison of St. George, Utah, parties of the first part, and T. M. Brown of Kansas City, Missouri, party of the second part.
“Whereas, The said L. A. and O. B. Jamison agree to maintain a squatter’s right on the west óne-half of section 33, Jamison survey, located in Pipe Valley, Mohave County, Arizona, for and in the interests of said T. M. Brown; and further agree to look after all improvements on said one-half section of Jamison Survey, until the party of the second part secures his deed from the Government to said one-half section 33, Jamison Survey, for which service the parties of the first part hereby acknowledge receipt of $125, the said party of the second part further agreeing to pay $125 additional when he files with the Government, or within a period of time not to exceed three months thereafter; provided the party of the second part finds the above described' land as represented.
“If, however, the party of‘the second part does not find this land as represented to him by the parties of the first part, or the entire proposition is not found to be as represented, in so far as ability to secure possession of same under the Smoot Act, then the parties of the first part agree to return to party of the second part the $125 advanced payment, above mentioned and to waive the payment of the additional $125, then this contract to become null and void, otherwise to remain in full force and effect.
“In witness whereof, the said parties have hereunto set their names, this 12 day of August, 1912, A. D. ”

Sometime after the said sum of $125 was paid by Brown to defendant, Brown went west with a view of examining the Pipe Valley, the locus in quo, and the tract of land described in the above written agreement. It was arranged for him to meet in the West the brother of defendant, said O. B. Jamison, who is jointly indicted herein with defendant, and who w§,s to show Brown the land on which defendant claimed that he and this brother had “squatter’s rights.” In passing, ■it will no doubt be noted that the lands are said in the written agreement above to be located in “Pipe Valley.” In the light of the facts of this case, the name given to this flowery valley seems significant, if not sinister.

Brown did not go upon these lands or see them, when he reached the vicinity of their alleged location, but having met said O. B. Jamison at a point some forty or fifty miles distant from Pipe Valley, and upon informing the latter of the representations made by defendant to him (Brown) that he would not be required to reside upon this land in order to homestead it, he was told by Jamison that if he expected to acquire title to these lands under the homestead law without actual residence thereon he would as well go home and get his money back from defendant. Thereupon Brown turned back and returned home to Kansas City without ever having seen Pipe Valley at all.

Other witnesses in the case from whom money in greater or less amounts was gotten by defendant upon similar representations and contracts, did go upon these lands and found them when examined, noí to be- as to moisture and springs and artesian water, and as to population already present and coming, and perhaps as to other minor particulars, as represented hy defendant.

A most flamboyant and highly colored pamphlet, descriptive of Pipe-Valley, was printed and circulated by defendant. But since this pamphlet was not in existence at the time the money in controversy was obtained by defendant from Brown, we need not notice the statements contained in it, further than to say that according to Brown the statements made to him orally by defendant were similar to and equally as complimentary and highly colored as those contained in the pamphlet. Other witnesses, however, who testified as to other similar transactions with defendant, and who were offered by the State for the purpose of showing-intent, did, they swear, pay defendant money on account of the representations contained in the pamphlet mentioned.

Upon the trial, and upon being asked to state specifically on what facts he relied when he paid defendant the money here in question, Brown -answered categorically and repeatedly that he relied solely upon the statements to him of defendant that he could get this land and obtain a title to it under the homestead laws of the United States without being required to take up or maintain an actual residence on it. Being asked whai the payment of the $125 in question here -was made to defendant for, Brown said that this payment was for getting this land, for looking after it and perfecting the title when it was surveyed and for doing certain improvements, and that in addition, for the service above mentioned, he was to give defendant a further sum of $125.

When Brown got-back home to Kansas City from the West, pursuant to the advice in such behalf given to him by O. B. Jamison, he went at once to defendant and demanded re-payment of the $125 which he had paid defendant. Defendant repeatedly promised to pay this money back to Brown, but continuing to make default in tbis promise, he was. subsequently arrested; the information herein was filed against him and this prosecution proceeded.

In passing, we may say that we have been unable to find anything in the record either describing the exact nature or negativing the existence of the alleged “squatter’s right” claimed by defendant to be held in these lands by him and his.brother; nor have we found any evidence as to whether or not defendant and his brother, or either of them, had any title, claim or rights— “squatter’s rights” or any other sort — therein. The record seems to be silent as to this. But since, in the view we are compelled to take of this case upon the record before us, we are not impressed that it greatly matters whether these particular statements were false or not. The record is filled with a great mass of representations as to the nature and qualities and condition of the soil, climate, water, moisture, population, products, fauna and flora of Pipe Yalley, and so mixed and tangled are these representations in thfe setting, as to make it difficult to pick and choose from the record those things which are permitted to be said, for that they fall into the category of “puffing,” and those which are forbidden, because they are false representations which fall into the category of criminal acts. But as stated, in the view we take of this case we do not deem it necessary to pass upon these points.

To make clear the discussion some further facts will be found further along in the opinion.

Among other Contentions it is urged that the evidence offered by the State (the defendant put in none) is not sufficient to make out a case. This contention is bottomed upon the fact that T. M. Brown, the prosecuting witness here and the person to whom the alleged false pretenses relied on for conviction were made, specifically says:

“I relied upon what he told me ahont this land, and that I could get it absolutely without living on it, and I told him I would not have the land any other way, that I could not leave my business. Pie says you don’t have to leave your business. You can stay right in China and any other seaport and get this land. All you have to do is go out and file on it after the Q-overnment surveys it and we will look after the balance of it. That is what I relied on. ’ ’

On this state of facts defendant urges he cannot be convicted: because the pretense relied on, while false, is but as to a matter of law, which defendant’s learned counsel urge, Brown is to be held, by a well-settled presumption, to know. In short, that knowledge as to the laws of the United States which fix the period and nature of the residence required in order to procure and “prove up” title on lands under the Homestead Law, will be imputed to Brown, and that a palpable lie touching same, will not constitute a felony in defendant, though the latter thrive financially thereby.

We state the case thus baldly and bluntly, though there is evidence (doubtless, however, for the triers of fact) from Brown himself, that he was not in fact misled, but that he knew the nature and period of the residence required upon lands sought to be homesteaded were not as represented to him by defendant. For discussing this matter with defendant, Brown said: “You and I all know, to homestead or anything like that you have to live on it about seven months in the year; I says, U could, not leave my business and go out and stay seven months in the year. ’ ’ ’ But we put aside the thought suggested by this condition of the record, and take the case upon the blunt point upon which respective counsel have seen fit to submit it: Is it a crime under section 4565', Revised Statutes 1909, to obtain money or property by falsely representing the status of the domestic law?

We think that the contention! of defendant upon this point must he upheld. Defendant, it is true, was convicted of larceny, hut the larceny of which he was convicted is wholly bottomed upon the false pretenses charged. If when measured by the ordinary rule which governs false pretenses it cannot stand, the whole case falls. In passing we may say that in no view, however, can .this conviction for larceny stand, because the proof shows that Brown intentionally, for the identical purpose and no other urged on him by defendant and set out in the contract, parted with the title to the money in question upon a bare promise of defendant of repayment of the money to him upon an agreed and well understood contingency. This is not the sort of obtaining money or goods by false pretenses (State v. Anderson, 186 Mo. 25) which is said to be made larceny by section 4566 of our statute. [State v. Buck, 186 Mo. 15; State v. Copeman, 186 Mo. 108; State v. Anderson, supra.]

Coming back to the question of false pretenses, we are impelled to hold that no felony can be committed in this State by falsely or mistakenly representing the domestic law to be that which it is not. It does not greatly matter in so holding whether this view is reached upon the theory of that fictional presumption for procedural convenience that ignorance of the law excuses no one, and that therefore all men are presumed to know the law; or whether it be based upon the view that no criminal false pretense may be bottomed upon a representation wherein the ascertainment of the truth or falsity of the fact averred is as open to him to whom the representation is made as it is to him who makes it. [State v. Lawrence, 178 Mo. 350; State v. Cameron, 117 (Mo. 641; State v. Barbee, 136 Mo. l. c. 445; State v. Anderson, 186 Mo. 25.]

The actions of the defendant here were reprehensible and morally inexcusable and he seems to merit richly the punishment which the jury assessed against him. But we cannot in order to punish him write into the law a doctrine which may tomorrow send an ignorant but innocent man to the penitentiary. [State v. Powell, 266 Mo. l. c. 108.] Almost this exact question was before this court in the case of State v. Lawrence, 178 Mo. 350, and while it'is not in that ease held in terms that no criminal prosecution can be based upon a false representation as to what the law is, it is yet said substantially, that a representation to the directors of a public school district that they were by law compelled to buy certain library books, when in fact there was no such law, furnishes its own reason why such representation was not calculated to deceive. Pox, J., who wrote the opinion in the above case, quoting Gantt and Sherwood, JJ., said:

‘£ The expression of this court in State v. Cameron, 117 Mo. 1. c. 648, may be very appropriately applied to the facts of this case. Gantt, J., speaking for the court, said: £It is not the policy of the law to punish as a crime the making of every foolish or’ ill-considered agreement. If it is, the jails and prisons must be greatly enlarged. ££ Where the pretense is absurd, or irrational, or such as the party injured had, at the very time the means of detecting at hand, it is not within the act. ’ ’ ’
"To the same effect is the case of State v. Barbee, 136 Mo. l. c. 445. It was said in that case by Sherwood, J.: £It is well settled law, both in this. State and elsewhere, that it is not every false pretense which can be made the basis of a criminal prosecution. It must be such an one as is calculated to deceive. ’ ”

This conclusion is in line with the rule in other jurisdictions even in civil cases, wherein the rule against pretenses of the sort here under discussion ought to be more.strictly construed against the tortfeasor than in a criminal case. Nevertheless, the rule is, that in a civil case a man will not be heard to contend that he was misled by a false representation of the domestic — as contradistinguished from the foreign — law of a given ease or matter. [Upton v. Tribilcock, 91 U. S. l. c. 50; Gormely v. Gymnastic Assn., 55 Wis. 350; Cooley on Torts (3 Ed.), 928-9; 1 Jones on Ev., sec. 26.] In the case of Upton v. Tribilcock, supra, at page 50, it was said, touching the effect in law of false statements as to the law:

“That a misrepresentation or misunderstanding of the law will not vitiate a contract, where there is no misunderstanding of the facts, is well settled. •
“In Fish v. Cleland, 33 Ill. 243, the principle is expressed in these words: ‘A representation of what the law will or will not permit to be done is one on which the party to whom it is made has no right to rely; and if he does so it is his folly, and he cannot ask the law to relieve him from the consequences. The truth or falsehood of such a representation can be tested by ordinary vigilance and attention. It is an opinion in regard to the law, and is always understood as such.’ [See Starr v. Bennett, 5 Hill, 303; Lewis v. Jones, 4 B. & C. 506; Rasdhall v. Ford, Law Rep. 2 Eq. 750.]
“The law is presumed to be equally within the knowledge of all parties. ’ ’

Since it is among the canons of the criminal law that a rule of law out of tenderness and regard for life and liberty is to be construed more strictly in a criminal case than in a civil one, we do not hesitate in holding that there can be no conviction for falsely representing the domestic law to be that which it is not. We have found no case exactly in point in criminal law, but the analogous cases as well as the analogous rules are against the criminality of the act. While we repeat, the acts of the defendant here were wrong and immoral, and upon no view to be excused, yet the law is not an exact science, and to hold that an erroneous or false representation of the domestic law upon a given point is a crime, would be to open a very Pandora’s box of evils to the undoing of business contracts, and to make the criminal courts the guardians of all financial improvidents. Moreover, it is obvious, that in practice it would not be possible to distinguish between that representation of the status of the law which is false, and that which is merely erroneous.

Since the prosecuting witness again and again stated that the sole reason he parted with his money was because he relied on defendant’s statement that the law is that no actual residence is now required in order to acquire a Government homestead, and since this is not such a representation as is denounced by our statute (Sec. 4565, R. S. 1909), the demurrer ,to the evidence should have been sustained.

This view makes unnéeessary an examination of the other points urged upon us for reversal. It must be held in mind that we are only passing upon the alleged false representation as to the law, upon which this case is specifically bottomed, and toward which the competent proof in this case is alone directed. Many other false representations touching the land in which defendant claims to have a “squatter’s right” are charged; some of these would in our view have been sufficient if proved, to show a felony; but touching such of these as are sufficient in substance, there is no proof to make them out. Many others standing alone fall into the category of mere puffing (Stonemets v. Head, 248 Mo. l. c. 264), and are no't actionable.

It follows that absent perjury it would seem to be not possible to strengthen this particular case upon another trial. Let it be reversed and the defendant discharged.

All concur.


text:
    THE STATE v. LAFAYETTE SHOUSE, Appellant.
    Division Two,
    May 31, 1916.
    1. MOTION FOR NEW TRIAL: Place in Record: Called For But Not Set Out in Bill. The proper place for a motion for a new trial in a criminal case is not in that part of the .transcript usually designated as the record proper, but in the bill of exceptions. But when there is set out in the bill a recital that defendant excepted to the action of the ■ court in overruling his motion for a new trial and that said motion is set out at certain pages “of the transcript of the record hereto attached and made a part hereof,” and said motion is found at the pages designated, the motion will be considered and reviewed on appeal.
    2. FAILURE TO SUPPORT CHILD: Evidence: Complaint. . Where the charge is that defendant bad refused and neglected to provide for his minor child necessary food, clothing and lodging it is error to permit the mayor of the town to testify that complaint had been made “about defendant not providing” for said child. Such testimony is an uncalled for verbal confrontation of defendant by a mere volunteer. And especially is it error, where the witness proceeds to testify that he sent the marshal for defendant, and when he was brought in he told him complaint had been made against him for not providing for his family, that it was not the first time complaint had been made, that he was tired of fooling with him and that he must support his family and provide clothing and fuel for them. !
    3. -: Meaning of Statute. The history, language and severe penalty of Sec. 4492, R. S. 1909, show that nothing more was intended by the Legislature than that the neglect or refusal by the father «to furnish necessary food, clothing or lodging must be to an extent that the life of his child under sixteen years of age is endangered thereby, or its health is permanently injured or is likely to be permanently injured thereby. The words “necessary food, clothing or lodging” mean such food, clothing or lodging as is necessary to sustain life and health, and lacking which the life of the child will be endangered, or its health permanently injured or is likely to be; they do not mean that a failure to furnish one meal, or food or lodging of a giver quality and kind, would be a crime.
    Appeal from Lewis Circuit Court. — Hon. Charles D. Steivartj Judge.

      Reversed and remanded.

      H. H. Howard for appellant.

      John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State.
   FARIS, P. J.

— Appellant appeals from a conviction in the circuit court of Lewis County on an information charging him with violating the provisions of section 4492, Revised Statutes 1909, in that, as it was alleged, he feloniously, unlawfully, wilfully and without lawful excuse refused and neglected to provide necessary food, clothing and lodging for his infant child, Ora Shouse. His punishment was assessed by the trial jury at imprisonment in the penitentiary for a period of two years.

The substantive facts of the offense as they appeared upon the trial disclose that defendant lived with his wife and five children, among whom was the child Ora, in a two-room house in the town of Canton in Lewis County. Defendant was a buyer and seller of secondhand metals and similar articles, commonly and in the vernacular called “junk.” The oldest child of defendant was the girl Ora, for whom he is charged with having failed and refused to provide. She was at the time complained of some twelve or thirteen years of age.

In January, 1915, the alleged condition of the child Ora was called to the attention of the mayor and marshal of the town of Canton, both of whom thereupon went to the home of appellant. They found in the house of appellant the little girl Ora seriously ill of pneumonia. She was in bed clothed in ragged, dirty clothing, consisting of a cotton dress, a thin cotton gauze shirt and drawers. Both this clothing and the child’s body were,.the witnesses say, unspeakably filthy, as were the bed and bed clothing upon which she lay ill. The record does not disclose whether she had other clothing or not. The condition of defendant’s house and of the surroundings are shown by the evidence to have been seemingly unsanitary and filthy, uncared for and ill-smelling in the extreme. The defendant, his wife and his four other .children were in this house at the time of the visit there of the mayor and marshal. The record discloses that defendant, who throughout claimed to have no money or other means, had prior to this, with the aid of a friend who paid for the service, called a physician to examine and treat the child Ora. The record clearly discloses that this child was greatly in need of medical treatment, attention and nursing. She was removed from the house of defendant’and cared for at the expense of the town of Canton at the home of a neighbor for some fouf weeks, until she recovered. The medical treatment apparently necessitated and which was furnished by the town of Canton called for some twenty-seven visits or more by a physician.

° Prior to the finding of the little girl ill under the circumstances set forth above, she had been seen, as the testimony discloses, about the streets of Canton with old shoes upon her feet and dressed in ragged, thin cotton clothing, seemingly insufficient to protect her from the cold.

There was no testimony as to the charge of neglecting to provide on defendant’s part necessary food, beyond the fact that the State showed that defendant was in the habit of purchasing large quantities of stale bread from the bakeries in the town of Canton, and there was some faint proof of his admission that he ate this himself and furnished it to his family, though on his part the evidence shows that he purchased it for the purpose of feeding it to his chickens, of which he seems to have had a number.

The defense was a lack of financial ability on the part of defendant to furnish to his family and to the child Ora in particular, better food or better clothing, lodging and medical attendance than he had furnished her. Defendant claimed that he had at the time this prosecution was commenced, only the sum of seventeen ■ cents.

There was proof that in September, 1912, considerably more than two years before this prosecution was commenced, defendant had been paid $475 by the sheriff of the county, which money came from the estate of defendant ’s father. There was countervailing proof that defendant had lost this money in an unfortunate venture in his business as a junk dealer.

There was some proof furnished by one Hart, a witness in the case, that in October or November preceding this prosecution, which occurred in March, defendant had showed the witness certain checks which defendant said were his and amounted in the aggregate to the sum of $800. There was no showing what became of this money, if it ever existed; though defendant offered some forty or more checks for various sums which he had paid out to divers persons from March, 1914, to about the 1st of February, 1915. These checks, defendant averred, were given to grocers and others in payment for food and clothing for his family and some of the checks upon their face corroborated defendant’s statement.

The condition of the record is such that we cannot, under our rules of review here, consider the instructions in the case; nor alleged matters occurring upon the voir dire examination of the jurors; nor the alleged misconduct of the jury while considering their verdict; nor the alleged acts of witnesses in disobeying the orders of the court; for these mátters are- not properly preserved.

Some further statement of the facts will be found in the subjoined opinion set forth in such wise, we hope, as to make clear some of the things we find it necessary to discuss.

I. The State contends that defendant has not brought up in a manner meet for review the evidence and other matters depending upon exceptions taken upon the trial. The record before us was not prepared pursuant to well-settled canons of practice. The motion for a new trial is found copied in full at pages 10 to 26, both inclusive, of the transcript in what we have come to designate for convenience, the “record proper.” Of course this is not the proper place for 'it. It does not physically appear at all in the hill of exceptions, which is the proper place for it. But there does appear in the hill of exceptions this entry:

“Defendant duly excepted and excepts to the action of the court in overruling and refusing defendant’s motion for a new trial and in overruling and refusing defendant’s prayer and motion for a new trial, which said motion for a new trial and the affidavits supporting said motion are set forth in the transcript of the record herewith filed and attached hereto and are fully set forth on pages 10, 11,12, 13, 14, 15,16, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 26 of the transcript of the record hereto attached and made a part hereof. ’ ’

While the method pursued by defendant in making up his hill of exceptions is inartificial and is neither to he commended nor followed as a precedent, yet the motion for a new trial does appear upon the record before us in such wise as to advise us fully as to its contents, and so as to guard .against any fraud possible to he worked by a change therein, and sq as to show when the hill of exceptions was signed by the judge below he had before him and ready to his hand a true copy thereof! There is pointed out to us here unerringly the place wherein, under all necessary safeguards as to verity, we may find this motion for a new trial. In effect we are told that while this motion is not set out in the hill of exceptions, it is set out at another place —the correct pages of which place are given — and out of caution it is stated by defendant in his bill of exceptions that such entry and said motion as set out are “made a part hereof,” i. e., a part of the hill of exceptions.

The condition here is, we think, readily to he distinguished from the facts presented in the cases of State v. Price, 186 Mo. l. c. 143; State v. Tooker, 188 Mo. l. c. 445; State v. Modlin, 197 Mo. l. c. 379; State v. Herron, 199 Mo. 159; and State v. Rhodes, 220 Mo. l. c. 11, to which onr attention is directed by learned counsel for the State and on which the State relies.

Since the defendant, though omitting to bodily and physically set out or direct the clerk to so set out this motion for a new trial, has yet in his bill of exceptions so clearly and correctly pointed out to us the place where this motion has been copied by the clerk into another part of the record, it would he a narrow and crabbed view-of what is at best but a technicality, to say that this motion is not before us. The analogy of this view to that taken by us in civil cases, wherein the abstract contains a reference to other parts of the record for an entry due to he found at the place of the reference, will he readily seen. "We think it fairly follows that the contention of the State that for lack of a motion for a new trial we may not consider the hill of exceptions herein, should he overruled, the which we do.

II. Coming thereupon to the merits of the appeal, we note that it is urged as error, among thirty-four other assignments, that the court nisi allowed- the State to show that complaints were made by divers persons to one Millspaugh, the mayor of the town (who may well he called the prosecuting witness in the case), touching the alleged condition of the child, Ora. Illustrating the nature of this alleged error the witness Millspaugh was asked:

“Q. Frank, coming down to the part of the issues, I will ask you to state whether or not any complaint was made to you about this defendant not providing for his child, Ora Shouse? ............
“By Mr. Howard: I object; whatever complaints that might have been made by somebody else couldn’t bind this defendant.
“By the Court: Overruled.
“And to the action of the court in overruling said objection, the defendant then and at the time excepted and saved his exceptions.
“A. Complaint was made to me.
“Q. "What did you do? A. I sent the marshal down for Mr. Shouse, and he brought him up to the bank and I told Mr. Shouse that complaint had been made against him for not providing for his family and that inasmuch as this wasn’t the first time that complaint had been made, and it had been made repeatedly, that I was tired of fooling with him any further along that line, and that he must support his family, and'he must provide clothing, food and fuel for them.
“Q. Did he do it? A. He refused to.
“Q. Following that visit, or in that visit what did Shouse say ? A. He said he had done all he could and he couldn’t do anything more.
“ Q. Now then, did you ever have another talk with Mr. Shouse? A. I did.
“Q. "When was that? A. That was on Tuesday; on the following Friday complaint was made to me that his little child was bad sick.
“By Mr. Howard: I object for the reasons stated heretofore.
“By the Court: Overruled.
“And to the action of the court in overruling said objection, the defendant then and at the time duly excepted and saved his exceptions.”

We think the admission of this testimony constituted reversible error. Against defendant’s contention of error, the State urges that the question was merely a sort of preliminary one, proper in the premises for that it showed a reason for the subsequent actions of the witness Millspaugh, and that nothing but the fact of a bare complaint having been made to the witness was elicited or called for by the question asked. We are unable to agree to this view. Here the charge was that defendant had ‘ ‘ refused and neglected to provide for said Ora necessary food, clothing and lodging. ’ ’ The question complained of is “whether or not any complaint was made about this defendant not providing for his child Ora Shouse.” The answer was: ‘ ‘ Complaint was made to me. ... I sent the marshal down for Mr. Shouse . . . and I told Mr. Shouse that complaint had been made against him for not providing for his family and as this wasn’t the first time that1'complaint had been made — it had been made repeatedly — that I was tired of fooling with him; . . . that he must support his family and must provide clothing and fuel for them.” We quote this answer loosely (subject to the correction of the quoted text) so as to. show the fearful force of the witness’s answers against defendant’s chances before the jury.

Conceding that the objection made by defendant was not as full as it might have been and that he made no objection to a most damaging part of this witness’s answers, yet defendant properly objected that complaints made by others could not bind him. The last part of the witness Millspaugh’s statement contained many things which made it vicious and damaging and utterly inadmissible, and while no objection was made to some of these things specifically, their connection with the first question asked ought to have made their vice apparent to the learned court nisi. It is an uncalled for verbal confrontation of defendant by a mere volunteer; it brings into the case other acts and complaints of acts of defendant not embraced within the period of the charge here; it almost in terms expresses the witness ’s settled opinion and conviction of defendant’s guilt and conveys the idea that his escape from prosecution up to that time had been but an act of the witness’s grace. It is broader than the charge of the information and even of the statute itself, for that the witness peremptorily requires and demands that defendant furnish clothing, food and fuel for the whole family; whereas his dereliction is by the information charged to be in respect to the infant Ora only; besides the statute does not, in terms at least, refer to fuel, or to members of a family, other than infants under the age of sixteen years. For the error first above noted this case must be reversed and remanded.

In passing we may observe that the testimony took a wide range. While the charge specifically was that defendant refused and neglected to provide for the child Ora necessary food, clothing and lodging, the proof only tended to show a neglect to furnish the best of food and clean clothing and aromatic and clean lodging. The point which was stressed, and plainly the gravamen of the charge which the State sought to prove, was the alleged neglect to furnish proper medical attention, medicines, nursing and sanitary surroundings to the infant Ora while she was ill of pneumonia. The proof showed that this child had the same sort of food and lodging that defendant. had. Defendant had not deserted or abandoned her. A physician had been called by defendant to treat her before the ultimatum of the witness Millspaugh had been delivered to defendant. He was doing, he says, the best for her that his abilities permitted. Nor is his contention upon the latter point convincingly disputed.

Elsewhere in the record it appears that the mayor, who was the chief witness in the case, caused the arrest and prosecution of defendant because he had not brought to the mayor the sum of fifteen dollars, which the latter told defendant he must deposit with the witness for the care of Ora or be prosecuted for this felony. In substance this witness says: “I told defendant it would be necessary for him to provide at least fifteen -dollars so we could give the child care and medical attention. I told him to bring this money to me, and gave him till one o ’clock to get it; this was at half past ten o ’clock. I cannot say whether he had this money or not; I think he did have it; it was not my business where he got it; I told him I thought he could get it. I do not know where he could have gotten it; he could not have borrowed it from me. I just made the peremptory demand on him to produce fifteen dollars by one o’clock and told him if he did not I would have him arrested. I waited till about two o’clock and had him arrested.”

While this excerpt is taken from the cross-examination of the witness Millspaugh, he had theretofore (without objection) testified in chief for the State substantially to the same facts. We are of the opinion that this mode of eliciting testimony to make out this charge discloses a complete misapprehension of the language and meaning of the statute under which defendant was prosecuted. This statute, so far as it is pertinent to the charge against the defendant at bar, reads substantially thus: If any father of any infant child under the áge of sixteen years, born in lawful wedlock, shall, without lawful excuse, refuse or neglect to provide for such infant necessary food, clothing or lodging, whereby his life shall be endangered, or his health shall have been, or shall be likely to be, permanently injured, such father shall be punished, etc. [Sec. 4492, R. S. 1909.]

When this section first came into the criminal code of this State (Sec. 1272, R. S. 1879), it seems to have been intended to apply to masters of apprentices and persons standing in some such relation only. It then, as first enacted, coupled the ‘refusal to furnish necessary food, etc., with acts of physical assault to an extent whereby the life of the apprentice or infant was endangered, or his health was, or was likely to become permanently injured. The offense was then made a felony and the penalty then as now was severe, being fixed at a maximum of three years’ imprisonment in the penitentiary.

From the history, language and severe penalty of this statute we think nothing other could have been intended by the Legislature but that the neglect or refusal to furnish necessary food, clothing or lodging must have been to an extent whereby the life of the infant was endangered, or to an extent which permanently injured, or which was likely to permanently injure, the health of the infant. In short, the words “necessary food, clothing or lodging,” mean such food, clothing or lodging as is requisite to sustain life and health, and lacking which the life of the child will be endangered, or its health permanently injured, or likely so to be.

Clearly, no mere failure to furnish one meal, or to furnish food, or lodging, or clothing of a given fineness and rarity would or ought to constitute a violation of this statute. No more would a failure to conform to an officious and arbitrary fixing of the quality of the food, or the fineness of the garments, or the aroma or sanitary condition of the residence or surroundings of the child. The statute did not contemplate that any person who might by his own good fortune or his own industry have attained opulence, should be allowed to set up in the community a standard of fineness of care and nurture to which all other persons should either conform or be punished as felons. A commendable zeal for civic betterment ought not to be permitted so to operate as to burden the State penitentiary with all but a fortunate and favored few of the State’s citizens.

The burden of, the evidence here in the case made is the alleged neglect to furnish medical attention, medicines, nursing, sanitary and sweet-smelling surroundings for the child Ora while she was ill, though it will be noted that the statute makes no mention in terms of any such matters, and it is almost a canon of the criminal law that no man is to be beld guilty of a crime by a forced construction, i. e., by construing a statute so as to bring bim within its provisions, when upon the letter thereof he falls wholly without its purview.

For the errors noted this case must be reversed and remanded. If upon another trial the evidence be no stronger or more apposite to prove the offense charged, in the light of what we herein rule, the court should instruct the jury to acquit the defendant. Let the case be reversed and remanded.

All concur.