author: REVELLE, J. FARIS, J.

text:
    THE STATE v. MELVIN WEBB, Appellant.
    In Banc,
    February 9, 1916.
    1. FELONIOUS ASSAULT: Wounding With Fists. Under section 4483, Revised Statutes 1909, which is the maiming or wounding statute, it is not necessary to prove malice or that the assault was made and the wounds inflicted with a dangerous weapon. All that is required is that the infliction of the wounds or great bodily harm be under circumstances which do not render it excusable or justifiable, and which would constitute murder or manslaughter if death had ensued. The wounding and maiming may be done with the fists, and to support the charge it is not necessary to establish that the wounds were of a dangerous character, or such as are likely to produce death.

      Held, by FARIS, J., dissenting, with whom WOODSON, C. X, and GRAVES, J., concur, that it is essential that an information drawn under Sec. 4483, R. S. 1909, aver the circumstances themselves which, if death had ensued, would have made the offense manslaughter, and that not having been done it is unnecessary to rule whether said statute can be violated by an assault with fists, or by the fists aided adventitiously by a finger ring.
    ■ Held, also, that if it be true, as announced by the majority opinion, that it is not necessary to establish that the wounds inflicted were of a dangerous character or such as are likely to produce death, it logically follows that any wound is, under said statute, sufficient to constitute felonious assault, and thereby the boundary line between common and felonious assault has been wiped out.

      Held, also, that said section 4483 denounces but two crimes: 1, The endangering of the life of another; and 2, The infliction of great bodily harm, either by (a) wounding, (b) maiming, or (c) disfiguring.
    2. -: -: Information. Under said statute it is not necessary to allege the particular means by which the wounding or maiming was done, since this may be accomplished by any means.
    3. -: -: -. Proof. An assault may be charged . to have been committed by different means, and proof of any will sustain the charge,

      4. -: -: Evidence of Provocation. The court did not err in withdrawing from the jury’s consideration testimony to the effect that the prosecuting witness, a school teacher, some,hours before the assault with fists, had chastised defendant’s son. That chastisement was neither a defense to nor in mitigation of the charge of felonious assault under Sec. 4483, R. S. 1909, where the wounding and maiming did not result in death.
    5. -:-: Instruction: Presumption: Intention to Kill: Harmless. Evidence that defendant, wearing a heavy finger ring on one finger, struck the prosecuting witness with his fists, knocked him to a hard road, severely beat him on the head and over his eyes and ears and other parts of the body where great and permanent bodily injuries could have been easily afflicted, was sufficient to authorize an instruction telling the jury that “the law presumes that a person intends the natural and probable consequences of his acts,” and that if they believe from the evidence the defendant assaulted the prosecuting witness “in a manner likely to cause death or great bodily harm, the law presumes that he intended to kill him or to do him some great bodily harm.” It is not required that a deadly weapon be used in order to justify such an instruction. Held, also, that, as this instruction was probably given more particularly in connection with the first count, which charged an assault with intent to kill or do great bodily harm, and defendant was acquitted on that count, and the second count charged wounding and maiming on which alone he was convicted, and nothing appearing to indicate that the severe injuries were not intentionally inflicted, he cannot complain of the instruction.

      Held, by PARIS, X, dissenting with whom WOODSON, O: X, and GRAVES, X, concur, that the human fist, even when aided by a finger ring, is not judicially noticed as being a deadly weapon, and therefore the words of the instruction telling the jury that “the law presumes that a person intends the natural and probable consequences of his acts” were erroneous, since, under such circumstances, the law does not presume that death or great bodily harm is a natural or probable consequence.
    Appeal from Andrian Circuit Court. — Eon. James D. Barnett, Judge.
    Affirmed.

      Fry $ Rodgers and Pearson & Pearson for appellant. , . i
    (1) The verdict was against the law and the evidence. There was no felony committed. There was no felonious assault made, or proven, (a) As shown by the testimony of the prosecuting witness, Tugel, and- the two State witnesses, who saw the assault, Tugel was not struck with anything, except the fist of the defendant; and not in such a manner as to cause any apprehension in their minds, at the time, that Webb had any intention to kill, or do great bodily harm; or, that the natural and probable result of such blows, would likely cause death or great' bodily harm. The charge, in the second count of the information, that the defendant made an assault, “with a certain large finger ring” was not proven, nor attempted to be proven. It is a fact, “known to all persons of ordinary intelligence,” that one man cannot make an assault upon another, with his fist, in a manner likely to cause death or great bodily harm — except, perhaps, in very extreme cases. Rogers v. State, 60 Ark. 76, 31 L. R. A. 468. This assault was nothing more than an ordinary assault with the fist. The jury should not h^ve been left to guess, or presume, as they were by. instruction seven, that the assault was made in a manner likely to produce death, or cause great bodily harm; and that the defendant was presumed to know, that an ordinary lick, or a number of them, with his ■fist, on any part of a man’s head or body, was likely to cause death, or great bodily harm; and therefore, was guilty of a felony. State v. Harris, 209 Mo. 439; Sta^gv. Dunn, 221 Mo. 541. (b) All the text-writers and cases treat an assault with the fist simply as a misdemeanor. Rogers v. State, 60 Ark. 76; State v. Say-man, 103 Mo. App. 142; State v. Shawley, 42 Mo. App. 585. (2) The court erred in giving instruction three on the part of the State. The verdict found “the defendant guilty of felonious assault, as charged in count two, of the information.” (a) The instruction is broader than the information. It does not confine the jury to finding an assault made with a certain large finger ring, and with hands and fists; but, is a roving instruction, giving the jury the right, .if they saw fit, to find that the assault, if any, was made with a sledge hammer, a hatchet, a large stick of wood, a knife, or any other dangerous, or deadly weapon, or instrument. In a civil action, such a variance between the allegations of the petition, and an instruction, would be reversible error. The principle is just as pertinent in a criminal proceeding. Reading v. Railroad, 165 Mo. App. 130; Davidson v. Transit Co., 2-11 Mo. 320; Beave v. Transit Co., 212 Mo., 331; Miller v. Railroad Co., 155 Mo. App. 528; State v. Harris, 209 Mo. 438. (b) There is no evidence upon which to base an instruction for a felonious assault in this record. The evidence shows, that the defendant assaulted, or struck prosecuting witness, with his fist, nothing more. The jury had none of the marks, bruises, or cuts, alleged to have been made by the assault, shown to them, which is necessary to be shown, before they can find a felonious assault. State v. Drumm, 156 Mo. 220. And this too, notwithstanding the charge in the information, that defendant did greatly maim, wound and disfigure which is the bodily harm charged to have been inflicted, and necessarily must have proven to have been inflicted, in order to convict of a felony. The evidence showed that there were absolutely no marks, or scars, on the head or body of the prosecuting witness, showing any evidence, or result of the assault. State v. Drumm, 156 Mo. 219; Rogers v. State, 60 Ark. 76, 31 L. R. A. 468. (3) The court erred in giving the seventh instruction on the part of the State. There was no evidence from which the jury could find that the defendant assaulted Mr. Tugel, in a manner likely to cause death or great bodily harm. And, he was not, and there was no proof that he was, greatly maimed, wounded or disfigured. Therefore, there was no evidence upon which to base this instruction. The glaring fact, that the actual assault with the fist, did not cause death, or great bodily harm, refutes the presumption that defendant intended to kill Tugel, or do him great bodily harm. The natural and probable consequences of an actual assault with the fist are the actual consequences thereof; and, it was error for the court to instruct the jury, that the law presumed the defendant intended to kill Tugel, or to do him great bodily harm, when, as a matter of fact, his assault upon him only inflicted some minor bruises and a skin scratch. Rogers v. State, 31 L. R. A. 468. It is only where an assault is made with a deadly weapon, or aimed at a known vital part of the head, or body, of a person, that the court is justified in declaring, that the law presumes that a man intended to kill another, or to do him some great bodily harm. State v. Harris, 209 Mo. 439; State v. Ruck, 194 Mo. 430. Unless the court is justified in declaring, as a matter of law, that the natural and probable consequences of an assault of one man upon another, with his fists, is likely to cause death, or great bodily harm, it is not justified in declaring that, the law presumes that he intended to kill him, or do him great bodily barm, by such assault. Similar instructions to this seventh are found in the law books, but they are only given when the assault is made with a deadly weapon, or aimed directly at some vital part of the head or body. State v. Taber, 95 Mo. 591; State v. Musick, 101 Mo. 270; State v. McKenzie, 102 Mo. 630; State v: Grant, 152 Mo. 64; State v. Harris. 209 Mo‘. 432, 439; State v. Stubblefield, 239 Mo. 530. This seventh instruction is almost, a peremptory instruction to the jury, that, the natural and probable consequences of the acts of a man who assaults another with his fists, is death, or great bodily harm; and, that in so doing, the law presumes that he intended to kill him, or do him great bodily harm.

      Jolm T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    (1) The second count of the information charges felonious assault under Sec. 4483, R. S. 1909, and is in a form approved by this court. State v. Bailey, 21 Mo. 484; State v. Moore, 65 Mo. 606; State v. Nieuhaus, 217 Mo. 332; State v. Janke, 238 Mo. 378. (2) It has been held that Sec. 4483, R. S. 1909, does not require that the wounding should have been done with a deadly weapon. State v. Janke, 258 Mo. 382; State v. Nieuhaus, 217 Mo. 548; State v. Bailey, 21 Mo. 484; State v. Munson, 76 Mo. 109. The evidence does disclose that the appellant wore, at the time of the assault a large ring with three sets in it, and after the assault, the appellant remarked in the presence of Miss Tully that his hands and finger were sore and he would have to get the ring off. The evidence for the State further showed that Tugel’s face had been cut and bruised in about twenty places and that at the time of the trial, the hearing of Tugel was still defective on account of the bruises he had received on his ear. This is called to the court’s attention for the reason that in appellant’s brief, it is stated that the charge that the defendant made an assault with a certain large ring was not proven nor attempted to be proven. The evidence clearly shows that this appellant gave Tugel about as severe a beating as could be given with the fists and a ring as described in the evidence in the length of time that the assault was continued. The cases cited by the appellant are not in point. (3) The State’s instruction numbe"r three properly states the law under See. 4483, R. S. 1909. There is no requirement under the statute that the instruction should state that the assault was committed by a deadly weapon or any particular weapon. It is only required that the party be wounded and receive great bodily harm and under circumstances which would constitute murder or manslaughter if death had ensued. State v. Janke, 238 Mo. 382; State v. Nieuhaus, 217 Mo. 348; State v. Ruck, 194 Mo. 4301; State v. Munsey, 76 Mo. 109; State v. Bailey, 21 Mo. 484; Kelly’s Crim. Law & Proc. (3 Ed.) 581. A reading of the evidence will show that the facts were sufficient to warrant an instruction on felonious assault. Kelly’s Orim. Law & Proc. (3 Ed.), sec. 296; 8 Am. & Eing. Eney. Law, 286; 12 Cyc. 152. (4) The giving of State’s instruction number seven on-presumption of the intent was proper. A criminal intent is generally inferred from the commission of the unlawful act. State v. Schloss, 93 Mo. 361; State v. Hall, 85 Mo. 66; State v. Davis, 226 Mo. 493; State v. Sylvia, 130 Mo. 440; State v. Ruck, 194 Mo. 431; State v. Kempf, 26 Mo. 430.
   REVELLE, J.

Prosecution by information filed in the circuit court of Audrain County, charging felonious assault upon D. E. Tugel. Trial, verdict of guilty, assessment of punishment at fine of $200; appeal in regular form.

Evidence on the part of the State: The assaulted was at the time of the difficulty superintendent of public schools at Vandalia, in Audrain County, Missouri, and defendant was an inhabitant of that town, having a son who attended the school over which prosecuting witness exercised superintendence. From record mdicia it seems that the prosecuting witness had, in the morning prior to this assault, administered some punishment to the son of defendant, and that, after the noon recess, and as prosecuting witness was returning to the school, was accosted by defendant, who said: “I want to see yon.” When close enough defendant seized prosecuting witness by the coat and vest and asked him if he had slapped his boy. Upon receiving an affirmative reply defendant struck the prosecuting witness, who with two packages of books which he held attempted to ward offs and shield himself from defendant’s blows. After being struck several times the prosecuting witness went to the ground, which is described as hard and dry and a road belabored with much traffic. Defendant then pounced upon and straddled the prosecuting witness and beat him over the head, striking him frequently in the eyes, ears and face. After prosecuting witness had twice stated in reply to defendant’s two inquiries that if he had been wrong he would apologize to the son, defendant, either voluntarily, or because of the interference of others (the evidence is not clear), desisted from further assault. With the aid of others, the prosecuting witness was then placed on his feet and taken home, where an examination of his injuries disclosed the following: His eyes were bloody, bruised, sore and badly swollen, and he was unable to recognize the parties who had escorted him to his home. The lid of one eye was cut entirely through, and he was unable to use his right eye at 'all, with very little use of his left eye. The teeth on the right side of his jaw were loose, and the left side of his back, face and ear were bruised for considerable time thereafter. Even at the time of the trial his hearing was seriously affected. He felt unable for a week and a half after the assault to perform his regular duties, and for- quite a while suffered from nervousness and pain. The evidence also discloses that defendant usually wore a heavy finger ring bedecked with sets, and that at the time of the assault this ring was on one of his fingers.

On the part of defendant the testimony tended to show that upon the return of his son from school at the noon hour he was informed that the. prosecuting witness had punished him in school, and that' soon thereafter he encountered the prosecuting witness on the street and asked him “why he had beat his boy over the head,” to which the prosecuting witness replied: “I am running that school'” After some little conversation on this subject the prosecuting witness became angry and struck the defendant, whereupon a fistic fight ensued. Upon being told by the prosecuting witness that he would apologize' for the punishment that he had administered to the son, the defendant voluntarily withdrew from the difficulty.

Instructions on both common and felonious assault were given, but defendant insists that there is no evidence upon which to predicate the instruction on felonious assault, or the verdict which convicts him of that offense. The facts are fully set out in the preceding statement and repetition would but encumber. In disposing of this and other assignments it must be borne in-mind that the information is bottomed, the cause was submitted, and the verdict based upon section 4483, R. S. 1909, which is the maiming or wounding statute, and which prescribes a different and less offense than that defined by either section 4481 or 4482. Under, this section it is neither necessary to charge or prove malice, or that the assault was made and the wounds inflicted with a dangerous weapon. All that is required is that the infliction of the wounds or great bodily harm be under circumstances which do not render it excusable or justifiable, and which would constitute murder or manslaughter if death had ensued. [State v. Bailey, 21 Mo. 484; State v. Nieuhaus, 217 Mo. l. c. 348; State v. Janke, 238 Mo. l. c. 38-2-3.] This assault was clearly committed, if the State’s evidence be given credence, under circumstances which would have made it murder or manslaughter had death' ensued, and this notwithstanding that the wounding and maiming were done only with the fists. [State v. Hargraves, 188 Mo. 337, and cases supra.] That the prosecuting witness was wounded and received great bodily harm abundantly appears from the facts. [State v. Leonard, 22 Mo. 449; State v. Nieuhaus, 217 Mo. l. c. 347.] To support this charge it is not necessary to establish that the wounds inflicted were of a dangerous character, or such as are likely to produce death. [State v. Agee, 68 Mo. 264; State v. Bailey, 21 Mo. 484; State v. Nieuhaus, 217 Mo. l. c. 347; State v. Janke, 238 Mo. 378.] The evidence is sufficient to sustain the verdict and we cannot invade the j pry’s function.

Complaint is made of instruction number 3, because it did not confine the means by which the assault was made to “a certain large finger ring and with hands and fists,” which is the allegation in the information. In answer to this contention is suffices to say that, in the first place, it was not at all necessary to allege in the information the particular means by which the maiming and wounding were done as this may be accomplished by any means; and, in the second place, it is well settled that an assault may be charged to have been committed by different means, and proof of any will sustain the allegation. [State v. Nieuhaus, 217 Mo. l. c. 344; State v. Hottman, 196 Mo. 110; State v. Myers, 198 Mo. 225.] Aside from this and if it be conceded that the instruction is somewhat broad, we do not believe, in view of the theories and evidence upon which this case was submitted and the other instructions given, that the defendant was thereby prejudiced. In fact, the main insistence of defendant here is that- the means alleged in the information and by which the proof discloses the assault was made is of such a character that a felonious charge cannot be bottomed thereon. This assignment must be ruled adversely to defendant.

It is also said that error was committed in withdrawing from the jury’s consideration the record indicia that the prosecuting witness had, • , some hours prior to the assault, and as superintendent of schools, chastised defendant’s son for some infraction of school rules. It cannot be, and it is not, seriously contended that this could justify the assault. In the first place had death ensued as a result of this assault, the fact of this chastisement would not have reduced the crime from murder to manslaughter, for it constituted no lawful provocation as distinguished from just provocation, which is necessary to reduce. In fact, when we consider the time that had elapsed, and the conduct of defendant after he had learned of the chastisement and before he made the assault, it can hardly be said that the punishment administered to his son amounted to even just provocation had death ensued, but this is unimportant, for even had his provocation been sufficient to reduce from murder to manslaughter, in the event of death, it is neither a defense to nor in mitigation of this charge, because it is written that the offense is complete when committed “in cases and under circumstances which would constitute murder or manslaughter if death had ensued.” The most that can be said of this evidence is that it tended to establish an unlawful motive for the assault, and while it was insisted in argument that no person would commit murder or inflict great bodily harm because of this provocation, the records of this court and human experience establish the contrary. [State v. Heath, 221 Mo. 565; State v. Heath, 237 Mo. 255.] The exclusion or withdrawal of this .evidence, if error, was error in defendant’s favor, and of it he cannot complain.

It is finally insisted that instruction number 7 should not have been given. This instruction is as follows:

“The court instructs the jury that the law presumes that a person intends the natural and probable consequences of his acts, and if you believe from the evidence in the case that defendant asjp jp Tugel in a manner likely ° . ^ to cause death or great bodily harm, the law presumes that he intended to kill him or do him some great bodily harm.”

No fault is found with its form, the complaint being that there was no evidence from which the jury could reasonably find that the defendant made the assault in a manner likely to cause death or great bodily harm. In this connection counsel for defendant say: ‘ ‘ He was not and there was no proof that he was greatly maimed, wounded or disfigured. The glaring fact that the result of his fists did not cause death or great bodily harm refutes the presumption that defendant intended to kill or do great bodily harm.” With this we cannot agree. The evidence discloses, as heretofore stated, that defendant assaulted the prosecuting witness, violently struck and severely beat him over the head, eyes, ears and other parts of the body where serious, great and permanent bodily injury could be easily inflicted. Oil one of his fing’ers he wore a heavy ring, and his statements after the difficulty disclose that he had used such force and violence as to injure his own finger and hand. Without going into detail as to the character of the injuries inflicted, it is sufficient to say that they constituted great bodily harm. Considering "also the fact that at the time they were being inflicted the prosecuting witness’s head was on hard, dry ground, it cannot be said that his acts did not warrant the conclusion that he intended to do great bodily harm. While it is true that this instruction is given generally in cases where a deadly weapon is used, yet it is not because of the use of such a weapon that the instruction is proper; it is because the use of such a weapon is one fact tending to show his intention, but this does not mean that such an intention cannot be reasonably inferred from other facts and other means of attack. There is nothing whatever in this record to indicate that defendant did not intend to inflict the wounds which he did, nor is there anything to show that such were not the natural and ordinary consequences of his acts. It is our opinion that the evidence is sufficient to warrant the giving of this instruction. In this connection it might be further said that the information contained two counts, and that the State was entitled to have the law upon both counts fully declared. The first count charged assault with intent to kill, or do great bodily harm; while the second count, as heretofore stated, charged a wounding and maiming. This instruction was perhaps given more particularly in connection with the first count, on which defendant was acquitted, and to that extent he cannot complain. In view of the disclosures that the prosecuting witness was in point of fact severely injured, and nothing appearing to indicate that these injuries were not intentionally inflicted, it cannot be said that this instruction was prejudicial or improper.

We have reviewed "the entire record in this case, and are of the opinion that the defendant has had a fair trial, and that the verdict is warranted by the evidence. The judgment is therefore affirmed.

PER CURIAM. — This cause having been transfer red. to Court'in Banc from Division Two, on the dissent of Faris, J., and having been reargued and submitted, the foregoing opinion of Revelle, J., is adopted as the opinion of the court.

Bond, Walker and Blair, JJ., concur; Woodson, C. J., and Graves and Faris, JJ., dissent. Faris, J., dissents in separate opinion in which Woodson, G. J., and Graves, J., concur.

FARIS, J.

(dissenting) — I am unable to concur in the majority opinion herein for three reasons, which I briefly summarize thus:

First. The doctrine announced in this case breaks down the distinction between a common assault and battery and a felonious assault, whereby maiming, wounding, disfiguring and great bodily harm ensues.

Second. Instruction numbered seven under the facts here (the producing cause and nature of the battery regarded) is misleading, erroneous and harmful.

Third. Instruction three is broader than the information, in that it fails to confine the jury in their consideration of the producing causes of the effects found to the causes pleaded in the information. I shall briefly set forth the reasons I have in mind for these views.

I premise what I shall say to the first objection by eliminating the question whether section 4483, under which this prosecution is had, can v^0]a£e¿ ]3y an aggaillt with the fists, or by the fists aided adventitiously by.a finger ring. It may well be legally possible under circumstances of great advantage taken,' or of great disparity of size, or of age, or of physical condition, and of the exhibition by the accused of ferocious brutality in the infliction of the injuries, to eke out a violation of this statute with these weapons of nature. [5 C. J. 732.] But in such case the information ought to aptly charge the facts which go to distinguish such a battery from the ordinary battery. [Jennings v. State, 9 Mo. 852.] For it is said in that case that “It is essential in an indictment under the 35th section (now section 4483) to aver the circumstances themselves, which if death had ensued, would • have made the offense manslaughter. ’ ’ This has not been done in this case; hence' the question suggested is not before us, and we are relieved from the duty of ruling it.

I am impressed with the view that the majority opinion by its application of the definition of a wounding under said section 4483;, and within the purview thereof, has not only trespassed upon the zone of demarcation which separates and distinguishes an ordinary assault and battery from the more serious and felonious assault and wounding, but has wiped out the boundary between the two utterly. Attend to the reasons for this view: The majority opinion says succinctly that within the purview of said section 4483, “it is not necessary to establish that the wounds inflicted were of a dangerous character, or such as are likely to produce death.” From such view it would seem logically to follow that any wound is sufficient. A wound, says Cyc., is “an injury to the person by which the skin is broken.” [40 Cyc. 2865.] So, the fault I find is that there are left no landmarks under the majority view in this case which point out the difference between one assault with the fists which constitutes a felony and another assault with the fists which constitutes but a mere misdemeanor.

The statute of this State defines by preclusion and denounces a common assault and battery thus: “Any person who shall assault, or beat or wound another, under such circumstances as not to constitute any other offense herein defined, shall,” etc. [Sec. 4484, R. S. 1909.] Under a definition of a wounding as contained in the majority opinion, any ^breaking of the skin is a wounding within the purview of said section 4483, whether done by old or young, weak or strong, healthy or unhealthy, by a single blow of the fist, or by many such blows. Given a blow by which the skin is broken and blood flows ever so little, a felony has been committed, if a prosecuting attorney so wills; because, forsooth he who is struck might have fallen (under circumstances not even required to presently exist), into a river, or over a cliff, or against a rock, or on the paved street, or upon a concrete gutter edge or other adventitious but convenient foreign substance, and death thereby follow. Thereby I feqr the line separating a misdemeanor from a felony is destroyed. And one engaging in a fist fight becomes a felon, if mayhap he be persona non grata to the prosecuting attorney, in whose hands is thus placed the arbitrary power to make a felony of that which was before but a misdemeanor of the minor sort. I characterize such a misdemeanor as minor because of the well-known hot passions of men which impel them to resent an ill word with a swift blow.

Discussing the expression “great bodily injury,” which confessedly is in pari materia with, but stronger than, the phrase “great bodily harm” of section 4483, of our statute, as well as another point important and germane to one phase of this case, the Supreme Court of Arkansas said:

“The phrase ‘great bodily injury,’ is difficult to define, for the reason that it well defines itself. It means a ‘great bodily injury,’ as distinguished from one that is slight or moderate, such as would ordinarily be inflicted by an assault and battery with the hand or fist without a weapon. To put one in danger of great bodily injury from an assault, something more than attack with the hand or fist would usually be required, and it would rarely happen that one might lawfully take the life of another to avoid an assault with the fist only. But cases might be supposed when it would be justifiable to do so; for an assault and battery by a powerful man with his fist upon a weak one might be carried to such extreme severity as to produce great bodily injury, and yet be unaccompanied by such circumstances as to make it a felony. One who intentionally commits a great bodily injury upon the person of another may or may not be guilty of a felony, depending npon the circumstances; but, as such an injury may, under some circumstances, be committed, and still the offender not he guilty of a felony, it is therefore not accurate to define ‘great bodily injury’ as ‘a felony committed on the person.’ ” [Rogers v. State, 60 Ark. 76, 31 L. R. A. l. c. 468.]

It is a significant fact, though concededly not a wholly decisive one, that in all the suggested forms for indictments found in the' excellent local treatise of Judge Kelley, there is not one but which connotes the use of some instrument or implement of attack of a deadly or dangerous nature. Of an indictment under section 4483, for the use of nature’s weapons, there is no form given. [Kelley’s Crim. Law & Pr., sec. 580.] Likewise is it significant that there has never before been in this State a case wherein a prosecution was had for a battery accruing from the use of mere fists. At least, a fairly exhaustive search for such a one has not been rewarded. These are the cases and the instrumentalities : State v. Leonard, 22 Mo. 449 (a large stone, said to have been a “deadly weapon”); Johnston v. State, 7 Mo. 183 (a stick of timber); Jennings v. State, 9 Mo. 852 (a large iron auger); State v. Freeman, 21 Mo. 481 (an iron shovel); State v. Bohannon, 21 Mo. 4-90 (a rock, and that maiming occurred in that a thumb was bitten off); State v. Thompson, 30 Mo. 470 (a hoe handle); State v. Moore, 65 Mo. 606 (a knife); State v. Agee, 68 Mo. 264 (a pistol); Carrico v. State, 11 Mo. 579 (a large piece of wood); State v. Bailey, 21 Mo. 484 (a large block of wood); State v. Davis, 29 Mo. 391 (a knife); State v. Janke, 238 Mo. 378 (by beating with fists, choking with the hands and stamping on and kicking with the booted foot and by striking with a hard but unknown weapon); State v. Nieuhaus, 217 Mo. 332 (a raw-hide whip three-fourths of an inch in diameter and a heated iron stove lifter, nine inches long, an inch thick and weighing one pound); State v. Munson, 76 Mo. 109 (a pistol); State v. Van Zant, 71 Mo. 541 (a knife); State v. Vangkn, 164 Mo. 536 (a knife); State v. Havens, 95 Mo. 167 (a large, heavy stone); State v. McQuaig, 22 Mo. 319 (a knife); State v. Feaster, 25 Mo. 324 (a large stick); State v. Herreford, 29 Mo. 399 (a knife, semble); State v. Ray, 37 Mo. 365 (a knife).

Moreover, the majority opinion seems to treat section 4483 as if the fact of wounding by a mere breaking of the skin is the only prerequisite, and as if there were five offenses denounced by said section, viz., (a) maiming, (b) wownding, (c) disfiguring, (d) inflicting great bodily harm, and (e) acts endangering the life of another. On the contrary the three first words are obviously ejusdem generis, so they may all be charged in the conjunctive in the same count of a single indictment. If they are not ejusdem generis, and if they do denounce five separate and distinct crimes, then the information in the instant case, as well as all of the known and used forms of indictment under this section, have offended for duplicity (Kelley’s Crim. Law & Pr., sec. 580; State v. Janke, supra; State v. Nieuhaus, supra; State v. Munson, supra; State v. Van Zant, supra; State v. Brown, 60 Mo. 141; State v. Moore, supra; State v. McQuaig, supra); and practically all, if not all, others cited supra, for they charge in one count two, three and more, often four, of the alleged distinct crimes; besides, it has been specifically held that such an indictment (i. e., an indictment charging a wotmding, disfiguring and the infliction of great bodily harm) charges but one offense. [State v. Herreford, supra.] That there is one case wherein the contrary is held in an obiter dictum, after an ample reason for the holding there was apparent and was given, does not alter this view. The conclusion therefore is inevitable that the wounding connoted by said section 4483 is a maiming-and-disfiguring, wounding, from which great bodily harm ensues, and not a mere breaking of the epidermis and a feeble flow of blood superinduced by a blow from the fist in an ordinary battery.

Comprehensively examined it is fairly manifest that section 4483 is a statutory “catch-all,” designed to cover and forbid criminal acts, productive of hurt and harm to others where life was put in jeopardy whether such acts were done with or without malice; that is, whether done intentionally or by culpable negligence. Thus it was designed to supplement, and not to supplant other germane statutes, wherein the strict letter, for lack of specific averment, fell short of defining the acts which constitute the offenses aimed at in section 4483. It not only includes acts which in other jurisdictions are designated as “aggravated assaults,” but also other acts, done with imputable but not express, malice, with or without an assault. It is not necessary under this section that there should be any actual injury, if the life of another be intentionally endangered (State v. Agee, 68 Mo. 264); nor that life be actually endangered if there be a wounding and disfiguring to the extent of inflicting, or from which great bodily harm ensues (State v. Nieuhaus, 217 Mo. 332); or obviously if there be a maiming, or a wounding, or a disfiguring from which great bodily harm ensues; provided, the circumstances are such that if death had occurred the tortfeasor would for his acts have been guilty of either murder or manslaughter. It is clear that an intentional assault whereby life is endangered, or whereby great bodily harm ensues is already fully covered by sections 4481 and 4482; that an intentional assault which produces a maiming or disfiguring in designated serious aspects, is likewise forbidden by section 4480, while a common assault and battery is covered by section 4485. But it is not so clear that assaults with deadly or dangerous instrumentalities resulting in wounding, maiming or disfiguring from which bodily harm, greater in degree than a common battery, but lesser in degree than those denounced in sections 4482 and 4480 and lacking, the specific purpose and malice of section 4481, are so included. It is clear that acts of culpable negligence, where injuries short of death are inflicted, are denounced by said section 4483; that the endangering of life intentionally, and that the infliction of- great bodily harm either by wounding, or maiming, or disfiguring are also .included. So the conclusion is deducible that the section denounces but two crimes: (a) the endangering of the life of another and (b) the infliction of great bodily harm, either by (1) wounding, (2) maiming, or (3) disfiguring. Any other view inevitably leads to the conclusion that the Legislature has done the unnecessary thing of making a single act punishable under more than one statute and of making two separate and distinct crimes out of the same act.

I am not contending that under the “ aggravated assault” features of said section 4483 it is impossible to offend by an intentional battery committed with the bare fists. I am conceding, as in the beginning I forecast, the possibility of doing this under a proper information, present proper facts. But I do contend that there is neither such a pleading nor such facts here, and that absent such necessary concomitants, the ancient landmark's ought not lightly to be destroyed, merely because the acts of the defendant happen to be unusually reprehensible and the punishment richly merited.

But I pass to the second reason for my dissent, viz., the goodness vel non in a case like this „ . , ,. , . ■, , ,, of instruction seven, which reads thus:

“The court instructs the jury that the lata presumes that a person intends the natural and probable consequences of his acts, and if you believe from the evidence in the case that defendant assaulted D. E. Tugel in a manner likely to cause death or great bodily harm, the law presumes that he intended to hill him or do him some great bodily harm.”

Here nothing was used but the fists, one of which bore a finger ring. Neither the fists nor the ring will be judicially noticed to be either a deadly or dangerous weapon as such is known to the law, absent specific proof of the fact. But in such state of the facts the jury are told that “the law presumes that a person, intends the natural and probable consequences of his acts.” It has been said that in a criminal case the law raises no such presumption. [State v. Stewart, 29 Mo. 419, wherein the instrument of assault was a walking-stick.] In this case Judge Napton said: “But the instruction in reference to the intent of the defendant was calculated to mislead. The intent of the de- ■ fendant in making the assault was a question of fact for the jury. The law raises no presumption about it, and it was error for the court to tell the jury that ‘the law presumes that every man intends the natural, necessary, and probable consequence of his acts.’ ”

I do not contend that in a proper case the giving of a proper instruction involving the presumption of intent from the use of a deadly weapon upon a vital part of the body of him who is assaulted, is forbidden by law. But that is not the question here. The human fist, even when aided by a finger ring, is not judicially noticed as being a deadly weapon (Little v. State, 61 Tex. Crim. App. 197), and therefore its use could not be judicially noticed (and presumptions are necessarily bottomed on judicial notice), as being followed by the inevitable consequence 'of death or great bodily harm, for such consequences are neither the natural nor the probable sequelae of such use of the fist as it is ordinarily used in a battery. Such consequences are but remote possibilities, because in human experience they occasionally happen; they do not always happen; and we repeat, if the fist or the manner of the use thereof in this oase was such as to take it out of the category of ordinary nse in a common assault and battery, the information ought to have said so. Moreover, if the jury were, even in this case to be told anything about presumptions, this instruction omitting the part which I am especially criticising, and which I italicise, told them all they were allowed to be told. The view urged in the majority opinion is fully met when the objectionable italicised words are entirely cut out of it. In short, these words were mere hurtful surplusage, even if we concede, for the sake of the argument, the correctness of the view on this point, of the majority opinion. Of course this instruction had specific reference to the first count, and not to the second count, on which the conviction was had, and which has been said to be a lesser offense. Though mindful of the excusing-rule on this phase, I do not think it saved this error from being hurtful here, because it applied generally to the facts in the case, and was not a mere erroneous definition of a greater crime, than that of which defendant was convicted.

Coming- to the third objection: Instruction three is bad because it is broader than the information. It would be bad in a civil case. How . . ., . . . , much worse then is it m a criminal case, wherein we are enjoined that, since the punishment of the citizen inflicts both pain and stain, rules of law in criminal cases are to be construed strictly. The pertinent part of the count in the information on which the conviction rests, charged that defendant “with a certain large finger ring and with his hands and fists, the said L. E. Tugel did then and there, beat, bruise and wound in and upon the head, neck and body of him the said D. E. Tugel, ■ whereby the said D. E. Tugel was then and there greatly maimed, wounded and disfigured, and received great bodily harm.”

The instruction which I contend is bad for a toógreat broadness, in pertinent phrase read thus: “The court instructs the jury that if you find and believe from the evidence that defendant, at the county of' Audrain and State of Missouri, within three years next before the filing of this information in this cause did unlawfully and feloniously assault D. E. Tugel and did then and there strike and beat said Tugel in a manner likely to produce death or great bodily harm, and did then and there inflict on said Tug’el great bodily harm, then you will find the defendant guilty as charged in the second count of the information in this cause and you will assess his punishment, ’ ’ etc.

If it be urged that this widening of the issues was harmless because of lack of evidence of other sources of injury besides the fists and the ring of defendant, the answer is that there is more than a suggestion in the evidence that the hardness of the ground on which Tugel lay contributed to some extent to the injuries which he is said to have sustained. This the majority opinion concedes, arguendo; yet the information did not charge it.

For these reasons and others which might be set forth but for the lack of space, I dissent from the majority opinion and the conclusion therein reached.

Woodson, G. J., and Graves, J., concur in these views.


source: Caselaw Access Project

author: FARIS, P. J.

license: Public Domain

text:
    CITY OF ST. LOUIS, Appellant, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY and REGAL BUGGY COMPANY.
    Division Two,
    February 15, 1916.
    1. CONDEMNATION: Leasehold: Measure of Damages: Loss of Business: Expense of Removal: Depreciation in Value of Goods. In the condemnation of land for a.public use neither the lessee nor the owner is entitled to be compensated, as for damages, for the cost of the removal of a stock of goods from the land taken to another place and their installation there, nor for a depreciation in the value of the goods caused by their removal and reinstallation, nor for the loss of profits caused by an interruption of the business during the period of removal and its reestablishment. Such damages are so variant as to fall within the classification of speculative.
    2. -: -: -: Fixtures. In the condemnation of land the value of permanent fixtures, being such as may be considered a part of the real estate, is to be estimated as an element of damage; and the owner or lessee is entitled to be compensated for such trade fixtures as are contained in and affixed to the premises condemned. And under -the apparent status of this case it is ruled that if the condemnor does not want such trade fixtures and the owner of the premises or the lessee elects to take them, the owner of the fixtures is entitled to be recouped in damages to the extent of their reasonable market value, as they stand, when confronted by the necessity of immediately tearing them out and reestablishing them elsewhere.
    Appeal from St. Louis City Circuit Court. — Hon. George H. Shields, Judge.
    Reversed and remanded.

      Charles H. Danes and Truman P. Young for appellant.
    (1) The measure of damages in condemnation suits for land condemned is' the market value of the land taken. Lewis on Eminent Domain, secs. 685, 706; Cooley’s Constitutional Limitations (7 Ed.), chap. 15, p. 819. (2) In cases where land to be condemned is' under lease the measure of damages in favor of the lessee is the market value of his lease over and above the rent reserved. Lewis on Eminent Domain, sec. 719; Hughes v. Hood, 54 Mo. 352; Baltimore v. Rice, 73 Md. 307. (3) Where land is condemned for public use there can be no allowance for damages for the cost of removing personal property or for injury to such property during the process of removal, or for interruption of business. This rule is applicable whether the land is occupied by the owner or by a lessee. Railway v. Knapp-Stout & Co., 160 Mo. 396; Railroad v. Schweitzer, 173 Mo. App. 650 ; Railroad v. Porter, 112 Mo. 361; Cobb v. Boston, 109 Mass. 444; Lewis on Eminent Domain, sec. 727; In re Petition of New York v. Brooklyn Bridge, 4 N. Y. Snpp. 222; Railroad v. Pierce, 35 Hnn, 306; Edmunds v. Boston, 108 Mass. 549; Williams v. Commissioners, 16& Mass. 366; In re N. Y. W. S. B. R., 35 Hun,'636; Becker v. Terminal Ry. Co., 177 Pa. 253 ; Raulet v. Railroad, 62 N. H. 561. (4) In those cases where an allowance has been made for the cost of moving personal property or for interruption to business, the decision has been based upon peculiar provisions of the statutes or constitution, and such decisions recognized that the general rule in the absence of such provisions does not allow the recovery of such damages. Blincoe v. Railroad, 16 Okla. 286, 4 L. R. A. (N. S.) 890 and note. (5) The Missouri cases which have allowed damages for the removal of property have done so only in those cases where the condemnor would have had to pay the entire value of the property- removed, if it were allowed to stay upon the land. In order to reduce the amount of damages it has been held that buildings and appurtenances found upon the land condemned may be removed and the cost of removal charged as a proper element of damages. Bridge Co. v. Schaubacher, 57 Mo. 582; Railroad v. McGrew, 104 Mo. 282; St. Louis v. Brown, 155 Mo. 567; Kansas City v. Morse, 105 Mo. 511; Railroad v. Clark, 121 Mo. 199. That these cases do not sustain the proposition that a lessee or owner may recover the cost of the removal of personal property or damages to business was clearly pointed out in the case of Railroad v. Schweitzer, 173 Mo. App. 650.

      Rassieur, Kanvmerer S Rassieur for respondent.
    (1) Section 21 of the Bill of Riglits protects private property in personalty as fully as it does in real estate. Mo. Constitution, art. 2, sec. 21; Railroad v. McGrew, 104 Mo. 282; Bridge Co. v. Schaubacher, 57 Mo. 582; City v. Abeln, 170 Mo. 326; Monongahela Nav. Co. v. United States, 148 U. S. 312. (2) Under the Constitution of Missouri and the provisions of the charter of the city of St. Louis authorizing condemnation proceedings, the commissioners properly assessed as damages the cost of removing respondent’s stock of goods and fixtures, the depreciation in value of its goods and fixtures caused by removal and reinstallation, and the injury to respondent’s business caused by the interruption of same during the period of removal. City v. Abeln, 170 Mo. 326; Railroad v. McGrew, 104 Mo. 282; Bridge Co. v. Schaubacher, 57 Mo. 582; City v. Brown, 155 Mo. 545; Blineoe v. Railroad, 16 Okla. 286; Railroad v. Siegel, 161 111. 647; Railroad v. Heisel, 47 Mich., 399; Railroad v. Weiden, 70 Mich. 393; Railroad v. Getz, 113 Pa. 219; Printing Co. v. Railroad, 216 Pa. 504.
   FARIS, P. J.

The city of St. Louis brought this action to condemn a strip of land for the western approach to its Municipal Bridge. Damages were assessed in favor of the several defendants by a commission of three freeholders, to whose report the city filed exceptions. The case came on for hearing in the circuit court of the city of St. Louis, wherein the exceptions of appellant city were overruled and it appealed.

The Regal Buggy Company, respondent herein, was the lessee for years of one parcel of the real estate which was condemned in this action. The lease of respondent, at the date of the making of the commissioners’ report, had a little over three years to run. Specifically touching the land occupied by respondent the commission assessed the value of said land taken, plus the damages to the remainder of the parcel, at the sum of $41,310. They then apportioned this sum by allowing to the owner thereof $38,610, and to this respondent, as lessee, the sum of $2700, being the appraised value of its lease over and above the monthly rent reserved. After making allowances of damages aforesaid the commission allowed the respondent the further sum of $8150 on account of injury to its business and for its damages and expenses arising from the removal of the fixtures and personal property of respondent from the premises condemned to a new location and for installing said property therein. The commissioners’ report, which was approved by the circuit court upon exceptions taken thereto, states the specific elements of damages going to make up the last mentioned sum thus:

“ (1) For the cost of removal of their several stocks of goods and fixtures from their present place of business to new locations and installing said goods and fitting said fixtures therein;
(2) For depreciation in the value of such goods and fixtures caused by the removal and reinstallation of the same;
“(3) For injury to their said businesses caused by the interruption of the same during the' period of removal of their said stocks of goods and fixtures.”

The allowance of damages for the three items above enumerated is the sole matter of contention here. It is conceded, even, that if these three items were proper subjects of damages, then that the amount allowed respondent therefor is fair and reasonable, but appellant contends that under the law of eminent domain of this State no such damages may be paid by the condemner to him whose land is taken for public uses.

.These three propositions and the contentions of appellant ■ and respondent pro and con respectively, form the points up for decision.

OPINION.

As forecast there is no contention made by appellant that respondent as the owner of a lease for a term of years was not entitled to compensation therefor; nor that the amount of damages awarded as the market value of respondent’s lease, to-wit, $2700, is unfair or unreasonable. It is only the damages awarded for the three items set out in our statement herein that are in controversy.

For convenience of discussion we will consider all items or elements of damages together, except that having to do with the fixtures, which we leave for subsequent separate discussion, since, under the law as we view it this may be conveniently done. In brief, these elements have to do with the allowance of damages (a) for the removal of the stock of goods of respondent from the right of way taken to a new location and placing them therein; (b) for depreciation in the value of said goods, caused by such removal and re-installation, and (c) for injury to the business of respondent on'account of the interruption or cessation thereof during the period of removal of said stock of goods and fixtures.

When this case was argued, the writer was of the opinion that it ought to be affirmed upon principle if not upon authority; but upon coming to examine the authorities I have been forced to a different view. Coming to the question of authority first, we have had our attention directed to but one case squarely on all-fours in favor of the allowance of damages for the expense of removal of .personal property from the right of way condemned. That is the case of Blincoe v. Railroad, 16 Okla. 286, 4 L. R. A. (N. S.) 890. In the latter case the question of the allowance of such expenses, was sqnarely before the court and he whose lease was taken was adjudged entitled to expenses of removing certain personal property, to-wit, lumber, from the lands taken. In that case, however, the learned court admitted that the rule in other jurisdictions was contrary to the conclusion reached; but it held that the law in Oklahoma warranted a different holding because of the language of the statute of that State, which in substance required the comfnission to consider the injury which the owner of the land might sustain and assess the damages caused him by reason of the appropriation of his lands.

The case of Philadelphia & Reading Railroad Co. v. Getz, 113 Pa. St. 214, is urged upon us as announcing a rule in favor of the contention that damages of the sort here under discussion may be allowed; but that case did not deal with ordinary personal chattels, but apparently with machinery and fixtures. Besides, the Pennsylvania court, in the later case of Becker v. Railroad, 177 Pa. St. 252, held to the contrary, in that they held that it was proper to refuse to allow proof as to the expense of the removal from such land of the personal property of him whose land was being taken, and said that the expense of such removal could not be considered as an element of damages for the condemnation of real estate for public uses.

The case of Atchison, Topeka & Santa Fe Railroad Co. v. Schneider, 127 Ill. 144, is urged as an authority for the awarding of damages of the sort here under discussion. But we need not consider whether that case is an authority or not, for the reason that it was distinguished and practically overruled by the later case of Braun v. Railroad, 166 Ill. 434. So, we cannot see that respondent’s contentions are at all aided by either of the above cases.

The case of Railroad v. Piel, 87 Ky. 267, is cited by respondent as an authority for a modicum of the position taken by it. This case seems to an extent to bear out respondent’s contention touching the phase of its right to damages for and during the interruption of its business caused by the taking of its property. We need not consider whether this is so or not, nor need we microscopically analyze the latter case, but pass it by, saying merely that it is opposed in its doctrine by the great weight of authority everywhere and in this State as well, and that in reaching the conclusion stated the learned court wholly overlooked and failed to consider the necessarily hypothetical and speculative character of such damages. [United States v. Wiener, 127 C. C. A. l. c. 385.]

The rule announced by Mr. Lewis in his excellent work on Eminent Domain, is as follows: “While it is proper to show how the property is used, it is incompetent to go into the profits of the business carried on upon the property. No damages can be allowed for injury to" business. The reason is that the constitution and the statutes, as ordinarily worded, require only that just compensation shall be made for the property taken. Just compensation, as we have already seen, where an entire property is taken, is the market value of the property, and where a part is taken, it is the value of the part taken and damages to the remainder by the taking and use of the part for the purpose proposed. The business conducted upon the property is not taken and the owner can remove it to a new location or continue it upon the part of the property which remains. Any incidental loss or inconvenience in business, which may result from a removal or change consequent upon the taking, must be borne by the owner for the sake of the general good in which he participates. In a few instances the statute has expressly provided that compensation shouhj be made for injury to business.” [Lewis on Eminent Domain, sec. 727; Central Pacific R. R. Co. v. Pearson, 35 Cal. 247; Pause v. Atlanta, 98 Ga. 92, 58 Am. St. 290; Jacksonville & S. E. Ry. Co. v. Walsh, 106 Ill. 253; Chicago &' Evanston R. R. Co. v. Dressel, 110 Ill. 89; DeBuol v. Freeport & Mississippi River Ry. Co., 111 Ill. 499; Brann v. Metropolitan W. S. El. R. R. Co., 166 Ill. 434; Cook & R. Co. v. Sanitary District, 177 Ill. 599; Marshall v. Chicago, 77 Ill. App. 351; Sanitary District v. McGuirl, 81 Ill. App. 392; Whitman v. Boston & Maine R. R. Co., 3 Allen, 133; Cobb v. Boston, 100 Mass. 438; Pegler v. Hyde Park, 176 Mass. 101; Sawyer v. Met. Water Board, 178 Mass. 267; Bailey v. Railroad, 182 Mass. 537; Boston Belting Co. v. Boston, 183 Mass. 254; Nashua River Paper Co. v. Commonwealth, 184 Mass. 279; Railroad v. Knapp, Stout & Co., 160 Mo. 396; Railroad v. Continental Brick Co., 198 Mo. 698; Petition of Mt. Washington Road Co., 35 N. H. 134; Raulet v. Concord R. R. Co., 62 N. H. 561; Matter of Department of Public Parks, 53 Hun, 280, 25 N. Y. St. 9, 6 N. Y. Supp. 750; Van Buren v. Fishkill Water Works Co., 50 Hun, 448, 21 N. Y. St. 448, 3 N. Y. Supp. 336; Matter of Grade Crossing Comrs., 17 App. Div. (N. Y.) 54; Matter of Gilroy, 26 App. Div. (N. Y.) 314; Cincinnati Iron Stove Co. v. Cincinnati So. Ry. Co., 9 Ohio C. C. 103; Schuylkill Navigation Co. v. Farr, 4 W. & S. 362; Navigation Co. v. Thoburn, 7 S. & R. 411; Pittsburgh & Western R. R. Co. v. Patterson, 107 Pa. St. 461; Hamilton v. Railroad, 190 Pa. St. 51; Schonhardt v. Pa. R. R. Co., 216 Pa. St. 224; Porter v. Scranton City, 36 Pa. Supr. Ct. 218; Fuller v. Edings, 11 Rich. 239; Eddings v. Seabrook, 12 Rich. 504; Railroad v. Chamblin, 100 Va. 101; Hunter v. Railway, 107 Va. 158; Studler v. Milwaukee, 34 Wis. 98; Esch v. Railroad, 72 Wis. 229; Union Steamboat Co., 39 Fed. 723; Bigg v. Corporation of London, L. R. 15 Eq. Cas. 376; Queen v. Vaughn, 4 L. R. Q. B. 190.]

In the case of Pause v. Atlanta, 98 Ga. 92, l. c. 105, the Georgia Supreme Court said: “The measure of her damages is the injury to her property which is injuriously affected by the public improvement; in arriving ?it that damage, neither the profits in the business conducted on the premises, nor the cost to the tenant of the fixtures and improvements placed therein nor the articles purchased for the purpose of enabling the lessee to conduct the business, nor diminution in value of fixtures, improvements or articles such as are removed by the lessee, can be recovered as damages; but the increased value of the premises for rent in consequence of the putting in of such fixtures and improvements may properly be considered in computing the damages to the leasehold estate.”

The general rule as regards including as elements of damages expenses of removal of personal property, as well as that regarding the status of fixtures, below discussed, is thus stated by Mr. Lewis: “Fixtures upon the property taken must be valued and paid for as part of the real estate, and any depreciation in the value of fixtures upon the part not taken is to be taken into consideration, the • same as damage to the soil itself. Where a railroad was laid through premises which had been fitted up for a water cure, so as to render it unsuitable for that purpose, it was held that the owner was entitled to the difference between what the fixtures and appurtenances were worth in connection with the property as a water cure (not exceeding their reasonable cost) and what they were worth to be removed from the premises and applied to other purposes. In a case in Pennsylvania it was held proper to show the expense of removal of machinery and fixtures as bearing upon the value of the property as it stood. But the damages to personal property, or the expense of removing it from the premises, can not be considered* in estimating the compensation to be paid. But when both parties proceed upon the theory that the owner is entitled to the cost of removing machinery, the condemning party cannot complain. Where the statute provided that the commissioners should ‘inspect said real property and consider the injury which such owner may sustain by reason of such rail road; and they shall assess damages which said owner will sustain by such appropriation of his land,’ it was held that the words in italics required that compensation should he made for the removal of personal property.” [2 Lewis, Em. Dom., sec. 728, citing Blincoe v. Railroad, supra.]

But this matter has also been before our Missouri courts and if we are now to hold that respondent is entitled to damages for the three elements under discussion, we must of necessity overrule two Missouri cases wherein the point involved was squarely lodged and wherein it was held that no such compensation is allowable under our laws. [Railroad v. Knapp-Stout & Co., 160, Mo. 396; Springfield S. W. Ry. Co. v. Schweitzer, 173 Mo. App. 650.] In the Knapp-Stout ease, supra, at page 412, Judge Gantt, writing the opinion of the court, in defining the measure of damages, and touching the identical question of the allowance of damages of the sort here under discussion, said:

“It is the settled law of this court that the measure of compensation and damages in cases in which only a part of a tract is condemned, as in the case at bar, is the market value of the land taken for the right of way, and the damages to the remainder by reason of the railroad' running through it, less any benefits that are peculiar to the tract of land arising from the running of the road through it. [Bridge Co. v. Ring, 58 Mo. 491; Railroad v. Waldo, 70 Mo. 629; Railroad v. Story, 96 Mo. 611; Railroad v. Baker, 102 Mo. 553.]
“Injury to business, loss of profits, inconvenience to the owner, damage to personal property or the expense of removing it, are not to he estimated as distinct elements of damages.”

In the very late case ruled by the Springfield Court of Appeals practically all of the Missouri cases were examined and discussed, and such of them as seem upon casual glance to oppose the conclusion reached, were successfully distinguished. Many of these cases are urged upon us as announcing a different rule, but we do not think they so far announce a different rule when carefully considered and when the precise point! up for judgment is regarded, as to warrant us in overruling those on all-fours; a fortiori, when they but follow the overwhelming weight of the authorities' upon these questions everywhere. Since all of these cases have been so lately, fully and ably discussed in Railroad v. Schweitzer, supra, we need not take up space to consider them again.

In the Knapp-Stout case, supra, precisely the same question was before this court that was before the Oklahoma court in the Blincoe case, viz.: the question of whether he whose land was taken .for public uses could recover the expenses necessarily incurred in the removal of personal property from the land, to-wit, lumber, lying thereon. In both cases parts of lumber yards were taken, yet we ruled that such expenses were not proper elements of damages.

At first glance it is to be conceded that there exists a difficulty in finding a reason for not compensating the owner of personal chattels who is compelled to remove them, for his expense in so removing them to a point at least, beyond the edge of the right of way. It is equally clear, on the other hand that no logical reason can be found for compensating him for the expense of removal beyond such point. This is so, for the reason that A might desire to move his chattels only into the next adjoining house, while B might desire to have his taken several blocks, or even several miles, and C on the other hand, his business being broken up, might desire to remove his goods to some other place, or city. No reason in logic therefore can be found for the condemner’s paying more than is sufficient to move the personal property off the right of way. A rule which would require the condemner to do more would be variant and indefinite, and therefore speculative.

It is obvious that a lessee stands in no better condition touching his right to be compensated for -expenses of this sort than does the owner of the fee. In fact, the reasons are more cogent for permitting the owner of the fee to recover as damages expenses of this sort than they are in favor of the lessee. For the lessee may be compelled to move at the end of his term; and since his occupancy of the premises is founded on contract, it may even he said that the presumption is that he will move. Or if there be no such presumption, or no presumption either way, the lessee is not aided by a discussion of this moving matter, for arguments in his favor in this behalf are founded upon the presumption that he will renew his lease and remain at the end of his term. But as regards the owner whose lands are taken, no requirement exists for his removal at any time, unless he sells the premises — a contingency too remote for consideration in this connection.

We apprehend that back of the rule against allowing damages of this nature also lie the considerations that loss of profits during removal is necessarily so speculative as to afford as a measure of computation no rule except a mere guess; that likewise, beyond the mere moving of goods to a point just outside the bounds of the right of way condemned, the expenses of removal being variant, damages would be arbitrary and highly speculative, and removal but to a point only just beyond the edge of the right of way would fall into the category de minimis, and that moreover, the inclusion of expenses of removal of personal.property and compensation for loss of profits during removal, is merged and included in the price paid for- the easement to the owner, or to the lessee, as the case may be. Viewed as a forced purchase by the public for the pub-lie good, as a condemnation action is in the last analysis, the latter consideration seems of great weight. For if he whose land is condemned had voluntarily sold his land to a private purchaser, ordinarily no thought ■would occur to either one, absent agreement to that end, that the seller should be compensated by the buyer for the removal from the sold premises of mere personal goods and chattels. That one is a voluntary sale and the other an involuntary sale does not peculiarly detract from the force of the argument.

But be all these things as may be the overwhelming weight of authority both in this State and in all other jurisdictions is as we hold, and having had other views in the beginning, by reason of the' apparent, rather than real, crying equities in the case, we have yet been compelled to follow the law as it is written both here and elsewhere. To rule otherwise would necessitate the overruling of at least two Missouri cases squarely in point and of most carefully distinguishing three or four other cases. [Railroad v. McGrew, 104 Mo. 282; Hannibal Bridge Co. v. Schaubacher, 57 Mo. 582; Railroad v. Porter, 112 Mo. 361.]

We therefore hold, in consonance with the great weight of authority everywhere, that respondent was not entitled to recover for loss of profits in its business during the removal of its stock of goods; nor for the expense of the removal of its stock of goods and personal property, as contradistinguished from fixtures, from its old location which was condemned, to a new location; nor for the depreciation in value of such personal property and stock of goods, caused by such removal and re-installation.

II. What we have said above disposes of a part of the questions involved in contention (1) supra, that is to that part of this contention having to do with the cost of the removing of mere personal property and chattels. The other phase of the case mooted in both contentions (1) and (2) viz; that touching the cost of removal of trade fixtures, which we left over for subsequent separate discussion, presents a somewhat different question. We assume, of course, nothing further appearing, that the word “fixtures” is used in its legal and technical sense, and not as a mere mercantile designation applied to chairs, tables, iron safe, et id omne genus.

A fixture appertains to the real estate itself, which real estate to the extent, at least, of an easement therein, is being taken by condemner. We need not enter into any intricate discussion of fixtures (since siich a discussion does not belong here), for the reason above given; which is well-settled, to-wit: that a trade fixture such as is herein involved, and such as was to an extent involved in the case of Hannibal Bridge v. Schaubacher, supra, is a part of the realty; and since it passes ordinarily as between vendor and vendee, upon a voluntary sale, we see no reason why it should not pass to the condemner upon an involuntary transfer, such as this is. We find nothing in the Missouri cases, nor in the cases from other jurisdictions- which seriously militates against this view. Those mentioned below sustain it. It seems to be right on principle; to do full justice and afford full compensation.

In passing we may say arguendo, that the view that the owner should be compensated for the expense of tearing out, moving and re-installing fixtures in another location has much of logical cogency. But it seems out of consonance with our own rulings, and subject to the objection that the expense of carriage from the old to the new location would be speculative, and so having reached a view which affords full compensation for the injury done, we hesitate to overrule our former holdings. Many of the cases from other jurisdictions which have been urged upon us as sustaining all of respondent’s contentions, are cases which allowed compensation for removing and re-installing fixtures, and ruling that such compensation was permissible. This for the reason, that if the owner of the land or lease condemned take such fixtures off the hands of the eondemner, who, ordinarily, does not want them, thus minimizing the damages accruing, both the owner and the eondemner ought to be held to the rule that their reciprocal duty toward each other is to so act as not unduly to augment the damages arising from the appropriation of the land.

In a very late case, decided in the United StatSs Circuit Court of Appeals for the Second District, it was held that an award in a condemnation proceeding for the value of certain trade fixtures, to-wit, machinery of an engraving plant, was proper, the court holding that in condemnation proceedings where the land is taken in mvitvm, the rule which obtains as to such fixtures is analogous to that between vendor and vendee and not that between landlord and tenant. [United States v. Wiener, 127 C. C. A. 382.] In the latter case the court quoted with approval what was said in In re Block Bounded by Avenue A, 122 N. Y. Supp. 321, l. c. 339, wherein it was ruled:

“The city took the entire buildings as they stood, including the trade fixtures therein, and for. the purposes of this proceeding they must all be regarded as real property; that is, as between the tenant and the city, the trade fixtures were real property and must be paid for by the city the same as a building, and the tenant was under no more obligation to remove them than he would be to remove a building if he were the owner. As between the tenant and the owner, however, the trade fixtures were personalty, and could be removed, and therefore any award made for them would go to the tenant.”

In the above case of United States v. Wiener, the court upon the other phases of this case, discussed supra, says: “There seems to be no authority for an allowance, for the removal of the business as distinguished from the plant and machinery. The district court allowed $2500 as damages which may result from the change of location. This was based upon hypothesis and speculation and we are unable to find any controlling authority to support the award.”

Since houses, which are but fixtures to real, estate, pass to the condemner (Kansas City v. Morse, 105 Mo. l. c. 519),-and since trade, fixtures under the Vendor and vendee rule would pass to the buyer, they pass here to the condemner and it must pay for them. Respondent, absent an election on its part and consent of the city to that end, could not take fixtures which the city had condemned, nor obtain as damages pay for moving property which by condemnation became that of the city. [Kansas City v. Morse, 105 Mo. l. c. 519; Springfield S. W. Ry. Co. v. Schweitzer, 173 Mo. App. 650.]

. It follows from all this that respondent was entitled to be paid the reasonable market value of its fixtures (contra-distinguished from mere goods and chattels) which were contained in, and affixed to the leased premises condemned. But the apparent present status of the instant case causes us to further rule, that if appellant does not want these fixtures, and respondent elects, or has elected, to take them (or, as seems probable, has already taken them),, then damages which appellant will be held to pay as such value of them should be recouped to the extent of their reasonable market value, as they stood in their old location, when confronted, however, as diminishing such value, by the necessity of immediately tearing them out and re-installing them elsewhere.

Upon the other phases of the case and to the extent last discussed upon the latter one, we are of the opinion that the court erred, and that for such error this case must be reversed and remanded to be retried in such wise as is not inconsistent with the views herein expressed. Let this be done.

All concur.


author: WALKER, J.

text:
    THE STATE ex rel. MOBERLY SPECIAL ROAD DISTRICT, Appellant, v. G. R. BURTON et al., Judges of County Court, Appellants.
    Division Two,
    February 15, 1916.
    1. CONSTITUTIONAL STATUTE: Implied Legislative Limitation. An implied limitation on the Legislature’s power to enact a certain statute must be so clear and unmistakable as to make possible no other reasonable construction of the language used than that the power to enact the statute does not exist. A possible inference of its non-existence is.not sufficient.
    2. -: -: — : Twenty-five Cent Road Tax: Expended by County Court. The provision of section 11 of article 10 of the Constitution authorizing the county court to levy and collect a tax of not more than twenty-five cents on each hundred dollars’ valuation, to be used for road and bridge purposes, and for no other purpose whatever, does not give the county court exclusive power to expend the fund, and does not contain a limi: tation upon the power of the Legislature to authorize the money so raised to be expended by the commissioners of a special road district so clear and unmistakable as to justify the conclusion that such power does not exist.
    3. -:--; Expended by County Court: Administration of County Affairs. Section 10482, Revised Statutes 1909, as 'amended (Laws 1913, p. 669), providing for the apportionment by county courts of taxes collected for road purposes within certain special road districts, is not unconstitutional on the theory that the Constitution created county courts to transact the business of the counties and vested them with express jurisdiction to construct and repair roads, even though it contains an implied limitation that the road tax fund be expended under the direction of those courts.
    4. -: Legislature: Power of Taxation: Instrumentalities. The power to tax and to appropriate taxes is vested in the Legislature, and may be exercised within its discretion when not violative of an express provision of the Federal or State Constitution, and that power, in the absence of such restrictions, extends to a determination of the time, the amount, the nature and the purpose for which the tax is to he levied, and the creation of the agencies or instrumentalities for its collection and disbursement.
    5. -: Class Legislation: Special Road Districts. Sections 10594 and 10591, Revised Statutes 1909 (repealed and reenacted in 1913, Laws 1913, pp. 674, 675), are not unconstitutional as class legislation. They apply to all road districts which may he organized as bodies corporate and are conducted in conformity with their provisions.
    6. -: -: -: Indefinite Territory. The fact that much or little of the territory of the county may be included in a special road district does not render invalid the statutes authorizing their organization.
    7. —=-: Special Road Districts: Public Purpose. Taxes expended by a special road district on public highways are used for a public purpose.
    8. --: -: Uniform Taxation. Special road district statutes operate alike upon all persons within the district, and do not violate the rule for uniformity of taxation.
    9. -: -: Collection of Taxes Within Cities. The statutes,- in authorizing the levy and collection of taxes in special road districts outside of cities, do not violate that part of section 10 of article 10 of the Constitution which forbids the Legislature to impose taxes and appropriate money levied and collected by city authorities to uses and purposes outside of such cities.
    10. -: -: Lending Credit, Etc. The statutes creating and governing special road districts do not violate sections 46 and' 48 of article 4 of the Constitution which prohibit the Legislature from granting public money to individuals, or municipal or other corporations, and from authorizing any municipality or other political corporation from lending its credit in aid of any individual or corporation.
    11 -: -: Maximum.Rate of Taxation. Special road districts are not included within the provisions of sections 11 and 12 of article 10 of the Constitution which fix the maximum rates of “taxes for county, city, town and school purposes.”
    Appeal from Randolph. Circuit Court. — Hon. A. H. Waller, Judge.
    Affirmed.

      Willard P. Gave for relator.
    (1) The law passed by the General Assembly, authorizing and directing the payment of special road and bridge funds to the incorporated special road district is valid, and within the legal rights of the Legislature to enact such law. Sec. 10482, R. S. 1909, as amended by Laws 1913, pp. 669, 670; Harris v. Bond Co., 244 Mo. 664; State ex rel. v. Sheppard, 192 Mo. 506; State -ex rel. v. Warner, 197 Mo. 656; Ex parte Roberts, 166 Mo. 212; Cass County v. Jack, 49 >Mo. 196; Dillon on Municipal Corporations (5 Ed.), sec. 92, p. 142, sec. 108, p. 181; Williams v. Eggleston, 170 U. S. 310; Elting v. Hickman, 172 Mo. 237; State ex rel. v. County Court, 128 Mo. 427; Road District v. Embree, 257 Mo. 593. (2) The amendment of the Constitution in 1908 (Sec. 22, art. 10) does not limit the power of the Legislature to' designate the agency through which the taxes collected shall be expended, provided same are used for the purposes limited in the constitutional amendment; in other words, the constitutional limitations are merely upon the uses and purposes to which the special fund may be put, and is not a limitation upon the power of the Legislature to designate the agency through which such uses and purposes shall be accomplished. Elting v. Hickman, 172 Mo. 237; Harris v. Bond Co., 244 Mo. 687. (3) The discretionary power to levy the taxes is vested in the county court, but the appropriation of the funds derived therefrom is not the county’s business. Railroad v. Marion Co., 36 Mo. 303; State v. County Court, 34 Mo. 546; Barton County v. Walser, 47 Mo. 189; Ray County v. Bentley, 49 Mo. 236; Express Co. v. St. Joseph, 66 Mo. 680; Glasgow v. Rouse, 43 Mo. 479; Railroad v. State Board of Equalization, 64 Mo. 294; 37 Cyc. 724; Thomas v. Gay," 169 H. S. 264. (a) The taxing power is not granted by the Constitution, but is inherent in the Legislature. Unless the Constitution expressly forbids the Legislature has the absolute power to assess property and levy taxes,' and provide tbe general scheme by which to carry out such purpose. In re Sanford, 236 Mo. 684. (b) Since there are no constitutional restraints placed upon the Legislature, the State has the power to create such agencies as the Legislature may deem fit and proper for the collection of its revenue. In re Sanford, 236 Mo. 684; St. Louis v. McCann,'157 Mo. 307. (4) The act of the General Assembly of 1913, being the amendment to section 10482, which requires the counties in-which there is a special road district to pay such districts the funds raised from the property in such districts, by virtue of a levy of taxes, under section 22, article 10, of the Constitution, is not in conflict with the constitutional provision, and is a valid act of the Legislature. Express Co. v. St. Joseph, 66 Mo. 680'; Elting v. Hickman, 172 Mo. 237; State ex rel. v. County Court, 128 Mo. 427; Harris v. Bond Co., 244 Mo. 664; Road District v. Embree, 257 Mo. 593.

      Jerry M. Jeffries for respondents.
    (1) Any law passed by the General Assembly authorizing or directing the payment of public funds secured by taxation to an incorporated special road district, is in violation of the Constitution and void. Constitution, art 9, secs. 46 and 47; State ex rel. v. St. Louis County, 142 Mo. 575 ; State ex rel. v. St. Louis, 216 Mo. 89; State v. Curators, '57 Mo. 178. (2) The funds derived from the levy made under section 22 of article 10 of the Constitution are public funds collected for a special purpose. Green City v. Martin, 237 Mo. 274; State ex rel. v. County Court, 142 Mo. 576. (3) The levy of taxes and the appropriation of the funds derived therefrom is the county’s business. An act of the General Assembly which requires the county court to pay a part of a fund collected for a particular purpose to the commissioner of a special road district, is void because it takes from the county court its constitutional right to transact all county business. Constitution, art. 6, sec. 36; State ex rel. v. Shepherd, 177 Mo. 205. (,4) All of the county must ■ be under township organization or none. To so organize requires a vote of the people of the entire county. Constitution, art. 19, sec. 8. (5) Constitutions are instruments of practical nature to be construed with the help of common sense to carry out the intent. In construing them it is proper to consider the consequence of the proposed construction, the circumstances and conditions of the people who adopted them. State ex rel. v. Callegin, 172 Mo. 129; State ex rel. v. County Court, 34 Mo. 549; Railroad v. Evans, 85 Mo. 370; Kenefick v. St. Louis, 127 Mo. 1; Water Co. v. City of Lamar, 128 Mo. 188; Test Oath Cases, 41 Mo. 188. (6) Under the Constitution, article 10, section 12, the counties are required to keep within the revenues of each year, with their expenditures of that year. Andrew County ex rel. v. Schell, 135 Mo. 38; Trask v. Livingston County, 210 Mo. 582. (7) The act of the General Assembly of 1913 requires the counties of this State in which there is a special road district, to pay to such special district the funds raised from the property in such special district by virtue of a levy of taxes under section 22 of article 10 of the Constitution, and Sec. 10482, R. S. 1909, is in conflict with such section of the Constitution and void. State, ex rel. v. St. Louis County, 34 Mo. 548; Railroad v. Evans, 85 Mo. 370; Kenefick v. St. Louis, 27 Mo. 1; Water Co. v. City, 128 Mo. 188; Hamilton v. St. Louis, 15 Mo. 3; Green City v. Martin, 237 Mo. 477; State v. Curators, 57 Mo. 178; State ex rel. v. St. Louis, 216 Mo. 94;. State ex rel. v. Everett, 245 Mo. 706; Lamar v. City of Lamar, 169 S. W. 12.
   WALKER, J.

The city of Moberly and contiguous territory in Randolph County for a distance of four, miles in each direction from said city, was, under the authority of sections 10576-10586, Revised Statutes 190-9, as amended by Laws 1911, p. 370, organized as a body corporate, to be thereafter designated as the “Moberly Special Road District.” This action by mandamus was brought in the circuit court of said county by the State at the relation of said road district as plaintiff against thé judges of the county court of Randolph County as defendants, to compel the latter to pay over (under the provisions of Sec. 10482, R. S. 1909, as amended by Laws 1913, p. 669) to said road district all money arising from a twontyfive-cent levy for road and bridge purposes collected on the property within said district. The levy, however, was made upon all the property of the county. The total fund collected in said district under said levy for road and bridge purposes, was $9334.60. In anticipation of the revenue to be derived from said twenty-five-cent levy, defendants had caused work to be done and debts to be contracted for roads and bridges over the entire county and had issued warrants therefor.

Upon a hearing on the application for the writ of mandamus the circuit court found that defendants had issued warrants in said district for $3303.90- for work done therein, and it was ordered that they pay or issue warrants to plaintiff in the sum of $6030.70, or the balance remaining in the county treasury which had been- collected in said district under the twenty-five-cent levy.

Cross appeals were perfected from this judgment, plaintiff contending that it was entitled to the entire revenue collected in said district for the preceding year for road and bridge purposes, and defendants that the statute under which the levy was made was unconstitutional and hence void.

’The constitutionality of. section 10482, Revised Statutes 1909, as amended (Laws 1913, p. 669), providing for the apportionment by county courts of taxes collected for road purposes within certain special road districts, is assailed by defendants on various grounds. It is first contended that this statute violates section 22 of article .10 of the State Constitution. It will be recalled that this section provides in addition to taxes' authorized to be levied for county purposes (under Sec. 11, art. 10, Constitution), that the county courts of the several counties, not under township organization, and the township board of directors in counties having township organization, may levy and collect as State and county taxes are collected, a special tax of not more than twenty-five-cents on each one hundred dollars’ valuation, to be used for roads and bridges, but for no other purpose whatever, and the .power thus conferred on the county courts and township boards is declared to be discretionary.

Three limitations, two express and one implied, say defendants, are found in this section; the first is as to the rate, the second as to the application of the tax when collected, and the third (which defendants say is implied) that the tax must be expended under the direction of the county court over the entire county.

As to defendants’ contention in regard to the first and second limitations, there is no question, the Constitution in this regard being express and unequivocal. As to the third, it may be conceded as a general proposition that under section 36 of article 6 of the State Concollllty courts are created for the transaction of county business and express jurisdiction is given them in this regard, but it must be borne in mind, despite this provision, that our organic law is not like the Federal Constitution, a grant of power, but is simply a limitation upon power which the Legislature otherwise possesses. [McGrew v. Railroad, 230 Mo. 496 ; State ex rel. v. Sheppard, 192 Mo. 497; State ex rel. v. Warner, 197 Mo. 650; Glasgow v. Rowse, 43 Mo. 479.] Broadly stated, therefore, the Legislature may enact any law which does not contravene the Federal or State Constitution, and in its interpretation, the courts will hold it valid unless its unconstitutionality is manifest and exists beyond a reasonable, doubt. [State v. Buente, 256 Mo. 227; Board of Com. v. Peter, 253 Mo. l. c. 530; Harris v. Bond Co., 244 Mo. 664; State ex rel. v. County Court, 128 Mo. 427.] The admitted implied existence of the third limitation renders it necessary for same to be so clear and unmistakable as to leave no other reasonable construction than that insisted upon by defendants, otherwise their contention cannot be maintained. [Board of Com. v. Peter, 253 Mo. l. c. 530.]

It is only upon the assumption that the entire business of the county must be conducted by the county court and that the Legislature cannot provide otherwise, that any basis can be found for defendants’ contention as to the third limitation. No words in the section authorize it. Consequently it is not such' a clear and unmistakable implication as would, under the rule, authorize an affirmative conclusion as to its existence in harmony with defendants’ contention, but on the contrary, it is simply an inference. Constitutional provisions cannot be construed by inferences, especially when it is sought by such construction to render a legislative enactment invalid. In thus construing the section of the Constitution under consideration, we are not unmindful of the fact that it contains restrictive language, but the purpose of this language is unmistakable and is expressly limited to the amount of the levy on each $100' valuation, and the purpose for which the tax is to be used, and not to the officials or body corporate by which it is to be expended. We are not impressed, therefore, with the soundness of defendants’, reasoning in so construing section 22, article 10, of the Constitution, as to con-

A fitting supplement to what has been said, and one of the primary principles underlying the system of taxation, is the fact that the inherent power to tax and to appropriate taxes is vested in the Legislature

fine the disbursement of the taxes therein authorized to the county courts of the respective counties, the effect of which would be to render invalid section 10482, Revised Statutes 1909, as amended. (Art. 10, Constitution) and may be exercised within its discretion when not violative of an express provision of the Federal or State Constitution. [Hann. & St. J. R. R. Co. v. State Board, 64 Mo. 294.] The comprehensiveness of this power, in the absence of the restrictions indicated, extends to the determination of the time, the amount, the nature and the purpose for which the tax is to be levied. [In re Sanford, 236 Mo. l. c. 684; 37 Cyc. 724, and cases.] The legislative power to tax being inherent, the creation of agencies or instrumentalities for the levy, collection' and disbursement of such taxes follows as a necessary consequence, and hence the right of the Legislature to enact a law delegating, in this case, the disbursement of the taxes collected to a board of commissioners of a special road district, is not an improper exercise of such power.

In addition to assailing the validity of section 10482, as amended (Laws 1913, p. 669), as being in conflict with section 22 of article 10- of the State Constitution, defendants claim that section 19594, Revised Statutes 1909, as repealed and re-enacted in 1913 (Laws 1913, p. 675), concerning, among other things, funds to be used in special road districts and the apportionment by county courts of county taxes for road and bridge purposes upon property within such special road districts, and section 10591, Revised Statutes 1909, as repealed and re-enacted in 1913 (Laws 1913, p. 674), providing, among other things, that boards of commissioners in special road districts may contract for the building, repair and maintenance of bridges and culverts in such districts and that county courts may in their discretion assist in same, are each, as well as section 10482 as amended, invalid as special legislation.

The particular provisions of the Constitution (Sec. 53, art. 4) prohibiting this character of laws are not pointed out. The Constitution does not prohibit local or special laws in all cases, such laws being forbidden only upon the subjects named in the Constitution or where a general law could have been made applicable (State ex rel. v. Speed, 183 Mo. 186). What are general laws as meant by the Constitution has been frequently determined. It is held' generally that a statute is not special or class legislation if it applies to all alike of a given class, provided the classification is not arbitrary. [Miners’ Bank v. Clark, 252 Mo. 20; State ex rel. v. Taylor, 224 Mo. 393.] Applying this rule to the statutes under review, we find from their terms that they apply alike to all road districts in the State which may be organized as bodies corporate and are conducted in conformity with the provisions of these acts. It does not matter whether much or little of the territory of a county is included in the districts thus organized; the .test of validity being, is the class created by these acts not arbitrary, and is each of the districts subject to and governed by these statutes ? If so, then they are not inimical to the constitutional provision in regard to special or class legislation. In our opinion they comply with the requisites of general laws and should be so construed. We so held in construing a similar statute in Biting v. Hickman, 172 Mo. l. c. 256, and in State ex rel. v. County Court, 128 Mo. 427.

There is no merit in the contention that the acts referred to are violative of that constitutional provision (Sec. 3, art. 10, Constitution) which prohibits the Legislature from appropriating pub-He money for private purposes. These statutes "were enacted to authorize the construction and provide for the maintenance of highways, which aré for the use and benefit of the public, and under no rule of construction can the appropriation of money for this purpose be considered a private one.

It is also urged that the provision of our organic law requiring uniformity in taxation is violated by these statutes. We have adverted to the power of the Legislature in regard to taxation; with it rests the mode of levying, collecting and disbursing taxes. Therefore, where statutes relative thereto operate alike upon all persons within a certain defined district or subdivision of the State, for example these special road districts, and the taxes authorized are for the benefit of the inhabitants thereof, as well as the general public, they are not open to the objection of non-uniformity in taxation.

Under section 10, article 10, of the Constitution, the Legislature is forbidden to impose taxes and appropriate money levied and collected by city authorities to uses and purposes outside of such cities. It is claimed that the statutes under review, in authorizing the levy and collection of taxes in ’these special districts outside of such cities, violate this constitutional provisio. It is held to the.contrary in Elting v. Hickman, 172 Mo. l. c. 258, on the ground primarily of the plenary power of the Legislature in the absence of express constitutional inhibitions, and secondarily, and as a practical reason, the interest of such cities in the improvement and maintenance of the roads leading thereto.

It is further claimed that section 46 of article 4 of the Constitution prohibiting the Legislature from granting public money to individuals, municipal or other corporations, and section 47 of ac-tide 4 of the Constitution prohibiting the Legislature from authorizing any municipality or other political corporation from lending its credit in aid of any individual or corporation, are violated by the statutes under consideration. These statutes do not grant or authorize the granting of public money or thing of value to any individual, association, municipal or other, corporation, and they are therefore not violative of section 46 supra. [State ex rel. v. County Court, 128 Mo. 427.] Nor do the acts authorize any subdivision of the State now existing or that may be established to lend its credit or grant public money or thing of value in aid of any person, firm or corporation. Section 47, supra, is, therefore, not violated. This has been fully determined in Elting v. Hickman, supra, in which .the statute there under review is, in all of its essentials, similar to these at bar.

It is urged that the acts in question are in violation of sections 11 and 12 of article 10 of the Constitution, which fix the limit of tax rates in the various counties. The limitations of said sections are confined by their express terms to “taxes for county, city, town and school purposes.” There is no authority for including road districts therein. We have held that they are not to be so included. [Lamar W. & El. Light Co. v. Lamar, 128 Mo. l. c. 216; Harris v. Bond Co., 244 Mo. 664.]

The power of the Legislature in the creation of municipalities and public corporations of every description is not only absolute but unlimited in the absence of constitutional inhibitions. In the presence of this power we must presume that in- the creation of the special road districts the Legislature deemed them necessary, expedient and in the public interest. Thus formed, authority exists as a necessary consequence of legislative power, to provide means for their perpetuation or maintenance or their 'change or abolition, as in the wisdom of the Legislature seems best. [Harris v. Bond Co., 244 Mo. 664.]

In view of all of the foregoing, we hold that the statutes in question do not, within the meaning of the Constitution, authorize the granting of public money to a corporation, nor do they interfere with the transaction of a county’s business required to be exclusively performed by a county court, nor do they involve a going into debt by counties as prohibited by the Constitution or authorize the expenditure of public money for another purpose than that for which it was collected, nor conflict with either the letter or spirit or the intent and purpose of section 22 of article 10 of the Constitution of this State.

From all of which it follows that the judgment of the circuit court is affirmed, and it is so ordered.

Fans, P. Jconcurs; Revelle, J., not sitting. _