author: LEAVES, P. J.

text:
    JAMES R. WOOLDRIDGE et al., Appellants, v. D. H. SMITH.
    Division One,
    May 31, 1912.
    1. GRAVE YARD: Public and Private: Dedication: Limitation. Where the owner of land marked out no plot of ground for a burial place, and in no way attempted to segregate a burying ground from the general farm, and there was no attempt at a dedication to the public and no evidence of an acceptance by the public, and only he and his children and some grandchildren and one stranger, nine in all, are buried there, there was no established public grave yard, nor yet a private family burying ground established in the manner required by and recognized by statute, and the law applicable to an established public grave yard, namely, the law relating to the dedication of land to a public use by the owner thereof, limitations, prescription, easement, and the right of those related to persons buried there to have it maintained as a cemetery, does not apply.
    2. -: Desecration: Injunction. Relatives of the dead buried in private family burying ground established in the manner prescribed by statute, have a right to enjoin the desecration of the graves therein; but it must be such an established private family burying ground as is recognized by the law.
    3. -: What is Private Family Grave Yard. The mere burying of the dead on land owned by a citizen in fee.simple and his own subsequent burial there does not create a private family burying ground; and if the land is conveyed by his descendants, without any reservation, the courts are powerless to enjoin a desecration of the graves, however inhuman such act of desecration may impress them. There is no such thing as the dedication of property to private use. The statute (Sec. 1308, R. S. 1909) provides that the owner of land may give permanency to a family burying ground by conveying it to the county court and recording his deed; but if he' makés no such conveyance, and the land is conveyed without reservation, the courts have no power to afford a remedy against desecration. The law contemplates but two kinds of cemeteries, public and private family burying grounds; and private family burying grounds can be permanently established only in the way designated by said statute, or (possibly) by reservation in the deed conveying the land of which it is a part.
    4. -: —:-: Prescription: Easement. The descendants of the owner of the plot of land in which he and others of his descendants were buried, which was in no wise segregated from the general farm and which was not conveyed to the county court and the deed recorded, cannot, as against the grantee in a deed conveying the same without reservation, •hold possession by prescription. They have no right to the fee which has passed to a purchaser from the owner’s heirs; and they have no such right or interest or estate to any part of said ancestor’s land so granted as gives them an easement by prescription. There is no such thing as a dominant estate to which an easement right can attach. There is no easement appurtenant, because no dominant estate. If there were an easement in gross, it would not avail the living descendants, because such easements do not pass by descent.
    Appeal from Pettis Circuit Court. — Hon. Louis Hoffman, Judge.
    Aefikmed.

      George F. Longan for appellants.
    No particular form or ceremony is necessary to dedicate land for the purpose of a cemetery. An express setting apart of land for such, a purpose by tbe owner may constitute a dedication of tbe land as a. burial ground and where there was evidence of an intent to dedicate, no particular form is necessary. Property which has been notoriously used for upwards of twenty years as a burial place will be presumed to have been dedicated as such and one asserting legal title to the land will be estopped from claiming it, by his own acquiescence. Wormley v. Wormley, 207 111. 411; Boyce v. Kalbaugh, 47 Md. 335. The title to an easement of a burial lot may be acquired by prescription where adverse possession for that purpose is held for the statutory period. Adverse possession of a burial lot is held by its use for a burial place with or without enclosure as long as gravestones stand marking the place as a burial ground. Hook v. Joyce, 21 L. R. A. (N. S.) 96. The use of grounds for burial purposes is a public use and there may be a common law dedication of such grounds to such use. Ten years adverse possession and use of a tract of ground dedicated to a public or charitable use for burying the dead will not give the owner of the fee the right to interfere with such use. The Statute of Limitations does not apply to such a tract and is no defense to an injunction to enjoin the owner of the fee from desecrating the graveyard and the graves therein; and the graveyard is none the less such, because for a quarter of a century no one has been buried there. Tracy v. Bittle, 213 Mo. 302.

      J. T. Montgomery for respondent.
    (1) Neither these plaintiffs nor their ancestors have complied with Sec. 1303, R. S. 1909. This statute was first enacted in the year 1857. 2 Laws 1857, p. 41. The act of 1857 was amended in 1859. Laws, 1859 p: 27. The statute has remained substantially the same from the date of its first enactment, up to the present time. Family burying grounds can in this State be secured in no other manner than that pointed out by the above act. Expressio unius est exclusio alterius is a well known maxim of statutory construction. (2) This plot of ground has never been reserved in any deed as a family burying ground or public burying ground. (3) Powhatan Wooldridge could not dedicate this plot of ground to himself and his descendants as a family burying* ground (except in the manner pointed out by the statute). He did not dedicate it to the public as a public burying ground, neither did the public ever accept it as such. There was no dedication of this plot of ground for a public graveyard by grant or by common law. There can be no dedication under the common law even for private uses public in their nature, where the enjoyment is restricted to a limited part of the public. 9 Am. & Eng. Ency. Law, 23, note 8; Todd v. Eailroad, 19 Oh. St. 524; Eailroad v. Whiteham, 155 HI. 514; Trustees M. E. Church v. Hoboken, 33 N. J. L. 13; Coberly v. Butler, 63 Mo. App. 556. These plaintiffs have no right of burial in said plot of ground either by grant or prescription. 2 Washburn Eeal Property, (4 Ed.) p. 301. Easement by prescription denotes adverse possession. These plaintiffs have never claimed this ground adversely up to the year 1890; because it was in their possession. The defendant has been in peaceable possession of the land in question since the year 1890, claiming title against the world. The authorities cited in plaintiffs brief are not in point.
   LEAVES, P. J.

Bill in equity seeking injunctive relief. Plaintiffs are lineal descendants of Powhatan Wooldridge who died in the year 1862. The bone of contention is the right to a tract of ground ten by thirty feet on which are the graves of the said Powhatan Wooldridge, his wife, and several of his relatives.

■The petition charges that the plaintiffs “are and have been for more than twenty years the owners and in possession of” the tract of land in dispute. The petition further avers “that said tract of land has been for more than twenty years used exclusively as a family burying ground by the plaintiffs and their ancestors. That all the graves on said ground have been during all the time since the burial of said bodies inclosed with fences, and these plaintiffs have been in peaceable and adverse possession of said land for more than twenty years.” The petition then further proceeds:

“Plaintiffs state that the defendant owns the land surrounding and adjoining to the said tract of land so as aforesaid described as containing the bodies of the ancestors and relatives of these plaintiffs. That these plaintiffs are desirous of. inclosing with a substantial fence the graves of their said ancestors and relatives, so as to prevent them from the intrusions and molestations of the animals and beasts that otherwise have access to them.

“Plaintiffs state that the defendant on or about the--day of March, 1907, without authority of law and in violation of the rights of these plaintiffs, removed the fences which inclose a. part of the said graves, thereby turning said graves or burial places into pasture belonging to the defendant, and used by him as a hog lot or pasture. That defendant threatens and is about to remove the fences inclosing the other graves located on said tract of land, and denies to plaintiff the right and privilege of erecting around said graves a fence or wall inclosing the same. That plaintiffs have notified the defendant of their rights in the premises, and warned him to desist from removing the said fences, and informed him that they would •erect around said graves a wall or fence inclosing the same. But the defendant refused to permit them to erect said wall or fence, and threatens to remove the fence surrounding the remainder of said graves.

“Plaintiffs state that if-they are not permitted to erect a wall or fence inclosing the said graves, and the defendant is allowed to remove the said fences now inclosing a part of said graves, they will be unprotected and exposed to the ravages and desecration of the hogs and other live stock belonging to this defendant, and that the injury and damage to plaintiffs will be irreparable; and that the injury and damage would not be susceptible of compensation in damages; and that plaintiffs are without an adequate remedy at law.

“Wherefore plaintiffs pray that the defendant, his agents, servants and employees be perpetually enjoined from removing any fence or wall enclosing said graves, and from interfering with or molesting in 'any way these plaintiffs in building and erecting a wall or fence inclosing the said tract of land so as aforesaid described containing the graves of the ancestors and relatives of these plaintiffs, and for such other and further relief as to the court shall seem just and proper in the premises. ”.

The answer is (1) a general denial, (2) the Statute of Limitations for adverse and continuous possession for more than 18 years, and (3) that plaintiffs have no rights either in law or equity, because “said plot of ground has never been set apart according to law for a family burial place.”

Upon trial had, plaintiffs failed to get relief and from this adverse judgment bring the case here.

The facts are practically indisputed. Powhatan Wooldridge, mentioned supra, was the original owner of a farm of which the small tract in dispute was a part. He is the father and grandfather of those buried there, with the exception of one stranger. There are some nine graves in all. There were no tombstones, but there were markers of common field stone and the graves were fenced. In one instance three graves were inclosed within a picket fence. Other graves were separately inclosed by rail pens. No sign distinguished one grave from another. The last interment was the body of Jno. M. Wooldridge, a son of Powhatan, in about 1880. The first was in or about 1856 or 1857.

The lands of Powhatan Wooldridge went by descent to his children, and by voluntary partition was divided. The forty acres upon which these graves are located passed to a daughter, Elvira and from her by deed, without reservation, to a son, John M., who died in 1880, and the land passed by descent to his children. In 1889; the children of Jno. M. deeded, without reservation, the land to defendant D. H. Smith, who took possession in March, 1890, and has been in continuous possession thereof ever since. Smith did not know of the graveyard at the time of his purchase. Such graves were obscured by brush and undergrowth so that they were not easily discernible, but might have been discovered by examination of the premises. No fixed tract was ever marked off by Powhatan Wooldridge for a graveyard, and no public road touched upon the tract, although there was a private way leading to it. Since the possession of Smith, plaintiffs have never been permitted to exercise any control over the ground in dispute. Such in brief are the facts.

I. In the brief filed in this court the plaintiffs undertake to plant themselves behind the case of Tracy v. Bittle, 213 Mo. 302. That case was written with care after a thorough research of all the authorities. The known lax methods used in the earlier days for the establishing of public burying grounds prompted the writer to the use of diligence and care in outlining the doctrine of the law announced in that case. But that case it not this case. We were dealing there with a public graveyard, and not with a private graveyard as these plaintiffs in their petition aver this one to be. In the Bittle case we held (1) that the evidence showed that the land in dispute had been dedicated to a public use by the owner thereof; (2) that the public could acquire an interest in a graveyard by a common law dedication, as well as by deed; (3) that the Statutes of limitation had no bearing upon grounds dedicated to a public or charitable use, and that a cemetery was such a use; (4) that there was no abandonment of such public use so long as the dead remained buried therein, and the grounds were maintained in -condition to evidence its use; (5) that mere ceasing to bury in the grounds did not change the character of the use, so long as such grounds were kept up as the home of the dead; {&) that parties related to persons buried in the grounds had such an interest, the maintenance of a public use, that they could sue to protect such use; and (7) that injunction was a proper remedy to prevent the owner of the fee from thwarting the public use and desecrating the graves of the dead in such public burying ground.

This case does not avail the plaintiffs here for two reasons. First, they do not charge the graveyard now under consideration to be a public graveyard. They aver it to be a private burial ground. Therefore, by their pleadings they have not brought themselves within the beneficent rules of the Tracy case. Secondly, their proof fails to show such acts by the older Wooldridge as would amount to a common law dedication of any particular tract of land to a public or charitable use, and the acceptance of the, same by the public. When the conceded facts of this case are fully measured up it is seen that they fall far short of showing a dedication to public use. An examination of the facts tending to show a dedication in the Tracy case, and in the other cases cited in that opinion, will demonstrate the absence of the necessary facts in the ease at bar. In this case Wooldridge marked out no plot of ground for a burial ground. He in no way attempted to segregate a burying ground from the general farm. There is practically no evidence of a dedication to the public or of an acceptance by the public. So that we conclude that both by pleading and proof, the question of a public graveyard is not in this case. If plaintiffs have any rights in the premises they must be sought from another source.

II. One theory of plaintiff’s petition seems to be that there was established a private family burying ground, and that they' as relatives of the dead ones buried therein have a right to enjoin the desecration of the graves therein. We think the latter proposition may be conceded as good law. In other words, if in law and fact this is a private family burial ground, these plaintiffs are not without remedy to prevent the desecration of the graves. Is this such a private family burial ground, within the meaning of the law, as to give the plaintiffs a standing in equity? Alleged desecration of the last resting place of the dead always appeals strongly to the courts. With firm .voice, in cases wherein we had power to act, this court has chided the heartless spirit which dared such a desecration. Desecration of graves is a heartless act bespeaking the absence of humanity in the breast of the desecrator. Gladly would the courts place their correcting hand upon the heads of all grave desecrators, if -the cold law in many cases did not stay it. In some eases the courts are left powerless, and this seems to be one of them. If A bury his wife upon his farm and then sells the farm without reservation, what power can protect that grave, save the humane heart of the grantee in the deed? If he bury his whole family there is the rule different? We think not. The law contemplates two classes of graveyards, public and private. Such has been the statute law of this State. - The first kind we considered in the Trácy case, supra. The latter we must consider here. There is no such thing as the dedication of property to private use. The proprietor of land can dedicate it to a public use, and if there is an acceptance by the public rights are acquired therein by the public. On this theory we say that a public graveyard may be established without a deed from the original owner. Private burial grounds, however, must be establised in a different way. In Misssuri we have a statute prescribing the method. Section 1303, Revised Statutes 1909, reads:

“Any person desirous of securing family burying ground or cemetery on his or her lands, may convey to the county court of the county in which the land lies any quantity of land not exceeding one acre, in trust for the purpose above mentioned, the deed for which to be recorded within sixty days after the conveyance; and such grounds, when so conveyed, shall be held in perpetuity as burying grounds or cemeteries for the use and benefit of the family and descendants of the person making such conveyance.”

This statute was first enacted in 1857, and has only been slightly changed by amendment. The lawmaking power realized that a landowner could not dedicate property for such use. It realized that such use could only be created by deed or reservation in a deed, and so impressed provided this statutory method of creating such a use. Under our statute we doubt whether á family burying ground could be established by a mere reservation in a deed, yet we need not'decide the point because not involved here. Such a reservation of course would convey the title and interest reserved to the parties for whom it was reserved, and in this way amounts to the preservation of such grounds as a graveyard. But, as said, this question need not be discussed.

The elder Wooldridge did no acts to create a public cemetery, nor did he establish a private or family burying ground in the manner pointed out by the statute. He at all times was possessed of the fee unhampered by any act of his in the premises. By this we mean any act which could be legally asserted against his grantees without express reservation in the deeds of conveyance. No such reservations appear. The title he possessed has passed to defendant. The statute as to family burying grounds not only requires a deed, but it requires the record of such instrument. To our miud this statutory method is exclusive, and if so, there is no family burying ground in which plaintiffs could have any legal rights. The statute may have a double purpose, but it evidently was intended to protect subsequent purchaser without actual notice, by requiring the deed creating the burial ground to be placed of record.

III. Another theory argued'by plaintiff, and perhaps well covered by their petition, is that they can hold possession by prescription. This presents a novel proposition. In support of it we are cited to a Kentucky case, Hook v. Joyce, 21 L. R. A. 96. In that case one Clark was the owner of certain land, when defendant’s father was buried there. Later his brother was buried there. Defendant’s mother caused tomb stones to be placed at the graves and had the same fenced. She died' and was buried at the same place. The defendant in the Hook case was the only heir-at-law of the mother, Lucinda Joyce. In 1847, the city of Paducah acquired the land upon which these graves were situated and established a cemetery. The city platted the grounds into lots, and sold the* lot upon which defendants father, mother and brother were buried, to the plaintiff Hook. Hook sued for possession and under peculiar instructions from the lower court lost the case, and appealed to the Kentucky Court of Appeals, which affirmed the judgment nisi. The court held that the defendant’s mother had an easement in the soil which had been acquired by prescription, which easement could not be defeated, but passed by descent to her heirs at law. The court further held that the possession of such easement was held by virtue of the burial of the dead therein; with properly inscribed' tomb stones. This language is used:

“But the question arises, what is the nature and extent of the adverse possession required in order to ultimately ripen into a title to an easement of a burial lot? It seems to us burial of tbe dead body is tbe only possession, where claimed and known, necessary to ultimately create complete ownership of the easement, so as to render it inheritable. And as long as it is inclosed as a burial place, or even, without inclosure, as long as grave-stones stand marking the place as a burial ground, the possession is, from the nature of the case, necessarily, and therefore in legal contemplation, actual, adverse,-and notorious. Moreover, there cannot be an actual ouster of possession by an intruder, or running of the Statutes of Limitation in his favor, while such gravestones stand there, indicating by inscription the previous burial of another.”

Of this case the learned annotator of L. R. A. in a note says: “The question in the above case is a peculiar one and seems to be without exact precedent.” "We are not impressed with this case. Under the head of Cemeteries, 6 Cyc. 716, we find this statement: “No formal deed is necessary to confer the exclusive right to the use of a lot in a cemetery for burial purposes. Oral permission from the proprietors is sufficient.” An examination of the authorities cited show much diversity of opinion upon the question stated.

Following the paragraph above quoted we find this further satement: “The title to an easement of a burial lot may be acquired by prescription where adverse possession for that purpose is held for the statutory period.” In support of this latter doctrine the Hook case, supra, is cited. Following this is the generally conceded doctrine as to cemetery lots:

“The purchaser of a lot in a cemetery, though under a deed absolute in form, does not take any title to the soil. He acquires only a privilege or license to make interments in the lot purchased, exclusively of others, so long as the ground remains a cemetery. Such privilege or license is subject to the police power of the State, in the exercise of which not only future interments may be prohibited, but the remains of persons theretofore buried may be removed. Therefore when by lawful authority the ground ceases to be a place of burial, a lotholder’s right ceases, except for the purpose of removing remains previously buried. ’ ’

Going further the same authority says: “A burial lot is regarded as property in which title may in most cases descend to heirs.”

It must be remembered that these general rules have reference to lots in established-cemeteries. To our mind there is where the Kentucky court became confused. At the date of the action the ground was in fact a cemetery, and if it were not for the recited facts as to when the bodies were buried in the lot in question, i. e., at a time prior to the establishment of the cemetery and when the ownership of the land was in Clark, we can see where the general rule above quoted might be made to apply. But from the vague statement of the facts in the opinion, we are lead to think that the court intended to hold that easement was created in favor of Lucinda Joyce upon the land, by the burial of the bodies therein- and the continued use of the lot in that way for the prescriptive time of fifteen years. If by the opinion it is meant to be held that the prescriptive term began when Clark’s land was invaded, we can not agree to the doctrine. It may be (a question we do not decide, because outside of the case in hand) that if after the Paducah Cemetery was platted persons had buried their dead in a certain lot, and the graves were readily discernible, and this use had continued for the prescriptive term, then a subsequent purchaser of the lot, who under the general rule of law only purchased a right or privilege to bury in the lot, might be precluded from the possession of lot by the holder of the prescriptive use. This assumed case is not the Hook case, as WO understand it, nor is it the case at bar.

Whilst the term easement might he applied properly to a lot in an established cemetery, because of the peculiar character of the holding of such property, can the term be applied to a tract of ground carved out of a farm upon which a grave has been dug and used? Can the term easement be used to apply to a small area occupied by a grave or graves outside of any burial ground, either public or family? Our statutes only recognize two kinds of burial grounds, i. e., public and family burial grounds. If the graves in question in this case were in either a public or family burial ground, as such burial grounds are defined by the law, there would be no question of plaintiff’s right to relief. But have they a status under the facts here? Broadly speaking an easement contemplates a dominant and a subservient estate. Excluding from view the fact that the possessory right to a lot in a cemetery is denominated by some writers as an easement which is inheritable, and going to the status of the plaintiffs in the case at bar, what interest, estate or right have they to any part of their grandfather’s land, which has passed by inheritance or deed to the defendant? That they have no title or interest in the fee is clear. Can it be said that they have an easement in the land by prescription? We think not.

In 14 Cyc. 1139, the essential elements of an easement are thus stated: “The essential qualities of easements are: (1) They are incorporeal; (2) they are imposed upon corporeal property and not upon the owner of it; (3) they confer no right to a participation in the profits arising from such property; (4) they are imposed for the benefit of corporeal property; (5) there must be two distinct tenements — the dominant, to which the right belongs, and the servient, upon which the obligation rests. In order to constitute an easement there must be two estates, the one giving and the other receiving the advantage, denominated respectively the servient and the dominant estates.”

The right to bury in a given tract of land is not a right “imposed for the benefit of corporeal property.” In such case there is no such thing as a dominant estate to which the easement right can attach. The mere right to bury upon a tract of land in no sense fills the general definition of the term “easement.”

But we have what is recognized in the law as rights or easements in gross. These are rights which rest upon lands in favor of a person or individual, and of course there is no dominant estate. But rights or easements of this character are not usually assignable, nor do they pass by descent. [14 Cyc. 1140.]

Viewing the law of easements from all angles we can see no remedy for these plaintiffs. There is no easement appurtenant, because no dominant estate. If a right or easement in gross it would not pass by descent and hence plaintiffs have no standing.

We have held that one having relatives buried in a public graveyard can in equity prevent the desecration of their graves. This, however, is on the theory that the land has been dedicated to a public use, and any interested party has a right to protect such public use. On the other hand, if the graves were in a family burying ground, then the rights of the parties to protect the graves are secured by the terms of the' deed required to be executed and spread of record.[Sec. 1303, R. S. 1900.]

But where neither of these conditions exist we can see no remedy. If it can be said that the Hook case from our sister State holds that the placing of a body in a grave upon the land of another, and permitting it to remain there for the prescriptive term, creates an easement by prescription, which easement will descend to the legal heirs, for all time, then we do not agree to the doctrines of that case. The bill in this case avers that defendant has denied plaintiffs all rights, except the right to remove the bodies. Of this right they had better avail themselves. To them it may seem harsh that they cannot be permitted to inclose the graves of their forefathers, to the end that their dnst might rest in peace. So it seems harsh to us, but the harshness is not of our making. Defendant is standing upon the cold law, and that we must give him, if he asks and insists.

It is not the humane idea which adjudicates the rights here involved, bnt the cold law as demanded by defendant. Under the law we see no remedy for plaintiffs, and with regrets we so say. Let the judgment be affirmed.

All concur.


source: Caselaw Access Project

author: BROWN, C.

license: Public Domain

text:
    JOHN FRANK MERRYMAN, Appellant, v. WILLIAM A. BUDDECKE.
    Division One,
    May 31, 1912.
    PLEADING: Variance: Failure of Proof: Sec. 2021, R. S. 1909. Evidence of a promise to let one into the reorganization of a public utility enterprise on such terms that he would receive stock and bonds sufficient to make him whole on account of his investment in the original undertaking, does not sustain an allegation in the petition of a promise to pay a certain sum of money, and it is such a variance as to constitute a failure of proof within the meaning of Sec. 2021, R. S. 1909.
    Appeal from St. Louis City Circuit Court. — Eon. R. M. Foster and Eon. Virgil Rule, Judges.
    Affirmed.

      Charles P. Johnson, Franldin Miller and Earlan, Jeffries é Wagner for appellant.
    (1) We have seen that the record in this cause was written up, that the evidence of plaintiff was printed, and that the record and the printed statement were before the court and the respective counsel, and that nine months elapsed, from the submission of the cause, before the rendition of the judgment, without a single objection being made as to variance or failure of proof; that a motion for new trial was filed in which are set forth eight assignments of error, but in no assignment is it charged that the court erred because the proof presented did not sustain the cause of action pleaded. Mellor v. Railroad, 105 Mo. 466; Litton v. Railroad, 111 Mo. App. 150: Applying the principles in the cases, supra, to the case at bar, we find that the gravamen, as Judge Thomas calls it, or the gist of the cause of action, as Judge Goons calls it, was the contract between the plaintiff and the defendant; the defendant denying that he ever made any contract with the plaintiff, hence the mode of payment under the contract, or the damages for the breach of the contract, did not constitute the cause of action, they were simply collateral to it. Conceding that there was a defect in the petition, the defendant evidently did not regard the defect as prejudicial to his defense, as defendant remained silent when evidence was being offered as to mode of payment under the contract and after verdict assigned no error of court in .the admission of evidence, as to the mode in which payment was to be made under the contract. We therefore conclude that if there was a defect in the petition, which we concede only for the sake of argument, that it was waived by the failure of the defendant to object to the evidence and to except to it if allowed by the court over his objection. (2) There was neither a variance nor a failure of proof. The conversation, of which plaintiff speaks, occurred between plaintiff and defendant when it was not contemplated that cash should be paid to any one. After the first trip of plaintiff and defendant to Las Vegas, when the conversation took place, the defendant in his letter and interviews always promised cash, hence there was no variance, the defendant desiring to amend the proposition of Call, Duncan, Sanders and Epperson, from a bond proposition to a cash proposition, and to pay plaintiff every cent plaintiff had in it, the defendant to finance the road and run it himself. (3) It will be observed that the appellant’s petition simply charges that “for cash advanced and invested and for said services rendered, defendant promised to pay to plaintiff,” etc. The petition does not charge how the appellant was to be paid — whether in property or in money. 4 Cyc. 330; Laidler v. State, 2 Harr. & Gill, 277; Lyles v. Lyles, 6 Harr. & Johns. 273; Stewart v. Craig, 3 Greene (la.) 505; Kent v. Bowker, 38 Vt. 148; Russell v. Branham, 8 Blackf. 277; Dock Co. v. Sonlard, 8 Mo. 666.

      Nagel & Kirby for respondent.
    (1) The action of the trial court in sustaining respondent’s motion for a new trial for the reason that the proofs presented did not sustain the cause of action pleaded, was proper, because there was a total failure of proof within the meaning of section 2021, Revised Statutes 1909. The allegations of the cause of action pleaded, towards which appellant’s proof was directed, remained unproved in their entire scope and meaning. The gist of the pleaded cause of action, alleged by way of inducement as well as by a formal statement of the contract proper, consisted of an undertaking by appellant to transfer and deliver to respondent, for a cash consideration, not only his own bonds and shares of stock, but also an option which the petition alleges that appellant held on the. shares of stock of his associates, giving him the right to buy their stock for less than par, and which options he had acquired for the purpose of effecting a reorganization of the company. The allegations of aid and ’ assistance were mere incidents to the principal subject-matter of the alleged contract. There was a total failure of proof because: (a) The undertaking of the other stockholders being unilateral — without consideration and revocable at will, and relating to the exchange of their holdings for bonds in another company, did not constitute options for the purchase of their stock, whether “black on white” or otherwise. An option is a contract by which the owner of property agrees with another person that he shall have the right to buy the property at a fixed price within a certain time. 21 Am. & Eng. Ency. Law (2 Ed.), p. 924. To constitute a valid option contract, it must be founded on a consideration deemed sufficient and adequate at law, and in its creation 'must comply with the laws’ demands, such as the Statute of Frauds, if applicable. 21 Am. & Eng. Ency. Law (2 Ed.), p. 927. (b) Having no options for the purchase of their stock, there could be no delivery thereof as charged and there was none, (c) Appellant at no time intended to deliver his own stocks and bonds, and he admits it. (d) His remuneration was not to be in cash as alleged, but in the stocks and bonds of a new company. (2) Whatever abstract merit there may be in the contention that appellant had certain advantages and opportunities in the reorganization of the company which he had placed at the disposal of respondent, there can be no recovery on that theory in this case, because a plaintiff cannot come into court, pleading a particular, express contract, and claiming a breach thereof, and recover upon proof of a different cause of action. That he must stand or fall upon the cause of action pleaded, is axiomatic. Ingwersen v. Railroad, 205 Mo. 328; Bircher v. Boemler, 204 Mo. 554; Koons v. Car Co., 203 Mo. 227; Construction Co. v. Iron Works, 169 Mo. 137; Huston v. Tyler, 140 Mo. 252; Ringer v. Holtzclaw, 112 Mo. 519; Haynes v. Trenton, 108 Mo. 123; Carson v. Cummings, 69 Mo. 325; Clements v. Tates, 69 Mo. 623; Contracting Co. v. Wrecking Co., 137 Mo. App. 392; Barber v. Imp Co., 131 Mo. App. 717. (3) The time to raise the question is at the close of plaintiff’s case, or at the close of the entire case. However inadequate the plaintiff’s proof during the progress of the trial may be, it is not until the close of his case or the entire case that the court can properly determine whether his proof entitles him to a recovery. An instruction in the nature of a demurrer to the evidence is one of the modes- of procedure by which the question is raised, and the request for an instruction, if a jury case, or a declaration of law, if tried by the court, is another.
   BROWN, C.

The petition, after stating that the plaintiff is an attomey-at-law practicing in the city of St. Louis and elsewhere, proceeds as follows:

“That the Las Yegas and Hot Springs Electric Railway, Light and Power Company is a corporation organized and existing under the laws of the Territory of New Mexico, and was, in December, 1904, engaged in operating a street railroad in the city of Las Yegas, Territory of New Mexico, with a branch line to Hot Springs in said Territory, using electricity for motive power;

“That plaintiff was the owner of three hundred and ninety-three shares of the capital stock of said corporation, said stock being of the par value of one hundied dollars per share; that he was the owner of sixty-four five per cent first mortgage gold bonds issued by said corporation, of the par value of five hundred dollars each; that in addition to the stocks and bonds so owned by plaintiff, he had an option from other holders and owners of the stock of said corporation, giving him the right to purchase at less than the par value thereof a sufficient amount of the capital stock of said corporation to give plaintiff control of more than seventeen hundred shares, out of a total of two thousand shares of stock issued by áaid corporation; that plaintiff had acquired said options for the purpose of, and was engaged in, working out a plan for the reorganization of said corporation; that in December, 1904, as aforesaid, plaintiff communicated his plan for reorganizing said corporation to defendant; that defendant expressed a desire to become interested with plaintiff in effecting such reorganization, and to that end plaintiff and defendant proceeded to the city of Las Yegas, Territory of New Mexico, and made a careful examination of the properties and business possibilities of said corporation; that after said examination, defendant being satisfied with the merit and possibilities of the business of said corporation, requested plaintiff to discontinue negotiations he was then conducting with other pérsons, to effect a reorganization of said corporation, and proposed to plaintiff that he (plaintiff) let him (defendant) proceed with said reorganization, and then and there agreed with plaintiff that if he (plaintiff) would turn over to him (defendant) the said options held by plaintiff for the purchase and control of the stock of other stockholders, and permit defendant to direct, manage and control the said reorganization, and give to him (defendant) aid in effecting said reorganization, and upon the payment of the sums hereinafter set out, deliver to defendant all of his (plaintiff’s) stock and bonds in said corporation; that he (defendant) would, in consideration of said options, rights, privileges, advantages, aid and property, pay to plaintiff a sufficient amount to reimburse plaintiff for all expenditures made by plaintiff for or on account of the said Las Yegas and Hot Springs Electric Bailway, Light & Power Company, whether in the promotion and construction thereof or otherwise, together with his investment in the stock and bonds of said corporation, and in addition thereto, pay to plaintiff an amount equal to the reasonable value of his services performed in his professional capacity in the organization of said Railway, Light & Power Company, and as its general counsel; that as a part of said plan of reorganization, it was proposed hy defendant, and agreed to by plaintiff, that a new corporation be organized to take over the property, rights and franchises of the said Railway, Light & Power Company, and, in addition to the above-mentioned considerations, it was agreed by defendant that plaintiff should become general counsel for said proposed corporation, and receive for his services the reasonable value thereof, and defendant promised to make plaintiff whole and fully reimburse him for all expenditures, investments and services rendered for, in and about the said Railway, Light & Power Company; that plaintiff did discontinue negotiations with other persons, did turn over to defendant his options and place defendant in full management and control of said reorganization, and did then, and has at all times, aided and held himself in readiness to aid defendant in perfecting said reorganization; that defendant has now, by the aid so given and the advantages afforded him by the plaintiff, perfected said reorganization, and in pursuance thereof has organized, under the laws of New Mexico, a new corporation, known as Las Yegas Railway & Power Company, which said last-named corporation has acquired the property, rights and franchises of the Las Yegas & Hot Springs Electric Railway, Light & Power Company; that plaintiff expended for and on behalf of, and invested in the stock and bonds of, the said Las Yegas and Hot Springs Electric Railway, Light & Power Company, the sum of twenty-eight thousand, five hundred dollars, in cash; that plaintiff in his professional capacity, organized said corporation, procured its franchises, obtained for it valuable leases, and served as its general counsel for a period of four years, for which services he received no compensation; that the reasonable value of said services is twenty thousand dollars ($20,000); which said cash advanced and invested, and for said services rendered, defendant promised to pay to plaintiff; that plaintiff has fully performed his part of the contract with defendant, but the defendant, though requested to perform his contract, wholly disregarding his duty in the premises, has failed, refused and neglected, and still fails, refuses and neglects, to perform said contract or any part thereof, and that no part of said indebtedness has been paid.

“Wherefore, plaintiffs prays judgment against the defendant in the sum of forty-eight thousand, five-hundred dollars ($48,500), together with interest and costs.”

The answer is a general denial.

The cause was tried at the October term, 1907, Division No. 3, of the St. Louis Circuit Court and was submitted to the court for trial without the intervention of a jury.

The plaintiff was sworn as a witness in his own behalf and testified that the Las Yegas and Hot Springs Electric Railway,' Light & Power Company, had an outstanding capital represented by 2000 shares of stock of the par value of $100 each, and 348 bonds each of the par value of $500. That he owned in December, 1904, 393 shares of the stock and 64 of the bonds, the most of which were pledged as collateral. The other principal stockholders were F. M. Call 412 shares, A. H. Duncan 413 shares, E. L. Epperson 399 shares and Y. O. Saunders 200 shares. Duncan and Call also held ninety other shares.

The corporation had a street car line in Las Yegas and East Las Yegas, two towns containing'about 4000 inhabitants each, situated upon opposite sides of the Gallinas river, and from these it had operated its road upon a track leased from the Atchison, Topeka & Santa Fe Railroad Company, to Hot Springs, about eight miles, and still further up a mountainous canyon was the Montezuma Hotel. A short time before Decernber, 1904, there had been a flood in the Gallinas river which had washed ont 3000 feet of track and two bridges, and lightning had struck the power house, placing it in a “frightful condition.” The plant was shut down, and money was needed. The owners did not have it or would not put it in, so that it was important to procure it upon the security of the property.

A few days before Christmas, 1904, plaintiff and defendant met on other business at the latter’s office in St. Louis, and after transacting it plaintiff told defendant that he had been informed that his wife was afflicted with tuberculosis, and had been compelled to leave St. Louis on that account and was then at Colorado Springs. Defendant said he was going to sell out his interests and move West. Plaintiff said that he had just been in New York on business, connected with Las Vegas. property, that it was a good thing, that Las Vegas was said to be one of the best points in the world for persons having tuberculosis, and would be good for the health of defendant’s family. They met again about January first, and plaintiff told defendant about his connection with the Las Vegas enterprise and that he had then a proposition before his New York people and that the company had had a meeting in November and had agreed that if plaintiff could get anyone to put fresh money into it, all the stockholders and directors would surrender their bonds and stock, amounting to about $200,000 of stock and $174,000 of bonds and accept $75,000 in new bonds for their holdings. He also told defendant that the New York people had been considering the proposition, and he was trying to get $100,000 from them to put into it. That the New York people would take in the plaintiff and pay him back the money he had in it and for his services during the four years he had worked for it.

Defendant asked that the matter be left open for thirty days until he could go to Las Vegas, and if he went into it he would do .better by plaintiff than the New York people. In all plaintiff’s interviews with defendant plaintiff mentioned that he and his partners, already named, held the stock and had built the road.

Defendant finally said to plaintiff he would not give the gentlemen $75,000 “for this wreck here. I can furnish it myself. What I want to do is to get it down to the lowest possible amount.” Plaintiff said he couldn’t do it; that he had got them into it, and couldn’t go to them and ask them to reduce their holdings. Defendant said: “You step aside. I will trade with them.” Plaintiff said: “All right, they are of age, when it comes to that.” Defendant said: “I will take care of you, all you have put into it.” Plaintiff said: “Yes, not only money I have put into it, but I have been working for it for years. I have given four years, the best years of my life to it.” Defendant answered: “You will get all that back, and more too.” Plaintiff in his testimony stated: “It was never contemplated that I would get cash, I will say that. I was to take an equivalent in bonds and stock in his new company; all what money I had put into it and what my services were reasonably worth for four years, that I was to get back in stocks and bonds of the company he was to organize; that was the agreement with him, he would see that I would get all my money back. He said he would give me back in bonds and stock of his new company, to the amount and extent of what moneys I had put into it and my four years of time; whatever that was worth, he would give me back in bonds and stock of the new company. He said whatever money I put into this road and whatever my time was worth, he would give me an equivalent of that in stocks and bonds of his new company. That was the basis of it.”

Defendant got the stock and bonds from plaintiff’s associates at the best price he could and reorganized the enterprise. He offered plaintiff eight thousand dollars in cash and five thousand dollars in bonds on which he would guarantee a permanent dividend of six per cent. This was refused.

The plaintiff proved that at the time he took up the matter with defendant he had put cash into the enterprise to the amount of $28,500, and that the value of his services to the old company had been at least $15,000.

The defendant asked a declaration of law in the nature of a demurrer to the evidence, which was refused, and the court found for the plaintiff in the amount of $43,500. The motion for a new trial was filed assigning the refusal of this instruction, among other things, as ground therefor.

This motion was sustained, and the finding set aside, and a new trial granted on the ground stated upon the record as follows:

“Defendant’s motion for new trial is sustained, because the proof presented does not sustain the cause of action pleaded.”

The substance of the cause of action stated in the petition is, that plaintiff had 393 shares of the capital stock and sixty-four bonds of the Las Vegas Company, and had an option from other stockholders on enough of the stock to make, with his own, 1700 shares, and that the defendant agreed that if plaintiff would turn over the option to him and would permit him to direct, manage and control the reorganization of the properties, and would aid him in that work, the defendant would pay him a sum equal to the amount he had expended for the- company, including the amount paid for bonds and stock and the reasonable value of his services, all of which amounted to $48,500, and that when this sum of money should be paid, the plaintiff would deliver to the defendant his own stocks and bonds.

The testimony of plaintiff at the trial was that defendant promised him if he reorganized and financed the enterprise with plaintiff’s help he would see that plaintiff got an equivalent in bonds and stock in the new company of all he had put into it and the value of his services for four years.

The defendant, in his letter of March 24, 1905, expressed it as follows: “I will also see that you are not going to be the loser in this deal, and every cent that you have in it now shall be worth a whole cent in cash, and later on perhaps more.”

The court below was evidently satisfied that evidence of a promise to let one into the reorganization of a public utility enterprise on such terms that he would receive stock and bonds sufficient to make him whole or more on account of his investment in the original undertaking did not sustain the allegation of a promise to pay a certain sum of money as set forth in the petition. We are constrained by the uniform course of this court to agree with it on this proposition and to hold that the variance constituted a failure of proof within the meaning of section 2021, R. S. 1909. [Ingwerson v. Railway, 205 Mo. 328; Koons v. St. Louis Car Co., 203 Mo. 227; Laclede Construction Co. v. Tudor Iron Works, 169 Mo. 137; Ringer v. Holtzclaw, 112 Mo. 519; Huston v. Tyler, 140 Mo. 252.] The Ringer case was upon a contract for the sale of lots, and the evidence tended to show an agreement to assign contracts of purchase for the same lots. In the Ingwerson case, the suit was upon a special contract for the carriage of cattle from Bowling Creen to Chicago within the period of twenty-four hours from the time of starting to the time of delivery, while the evidence showed a contract to carry within a reasonable time. In a thorough examination of the question it cites a great number of cases bearing upon the obvious conclusion that a plaintiff cannot sue upon one proposition and recover on another. The order of the St. Louis Circuit Court setting aside the verdict and granting a new trial is affirmed and the cause remanded to said court, where the plaintiff may amend his petition if so advised.

Bond, C., concurs.

PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.

AH the judges concur, except Vallicmt, J., absent.


author: BOND, 0.

text:
    CITY OF ST. LOUIS v. HENRY DREISOERNER, Appellant.
    Division One,
    May 31, 1912.
    1. CITIES: Ordinances: Conformity to State Laws. All of the ordinances of the city of St. Louis must conform to relevant state laws, and they are invalid in so far as they are inconsistent therewith.
    2. -: Powers. A municipal corporation possesses and can exercise the following powers only: (1) Those granted in express words; (2) those necessarily or fairly implied in or incident to the powers expressly granted; (3) those essential to the declared objects and purposes of the corporation — not simply convenient, hut indispensable. Any fair, reasonable doubt concerning the existence of a power is resolved by the courts against the corporation, and the power is denied.
    3. -: -: Nuisance. A municipal corporation has no power by ordinance to declare that to he a nuisance which is not so in fact, or to suppress in part or in toto any business within its limits which is not a nuisance per se.

    4. -: -: -: Wood Turning. The maintenance within six hundred feet of Tower Grove Park in the city of St. Louis of a manufacturing plant for making altars, chancels and carved wood, in which plant three saws are operated, is not a nuisance per se, nor had it become a nuisance as carried on by the defendant. Hence the city of St. Louis had no power under its charter to prohibit or abate such manufactory. The city had no specific power under its charter to regulate it, nor any authority so to do under the general welfare clause or as a police regulation.

      5. -: Police Power. The police power is a necessary and wholesome faculty of municipal government, hut it extends only to the regulation of employments prejudicial to the public safety, health, morals and good government of the citizens, and it “ends where those public interests are not beneficially served thereby.” It cannot sanction the confiscation of private property for aesthetic purposes.
    6. -: Powers: Unwarranted Exercise: Ordinance Forbidding Wood Turning Shop: Constitutional Question. A provision in a city ordinance of St. Louis forbidding the maintenance of a manufacturing plant of any size within 600 feet of Tower Grove Park, is held to be an unwarranted exercise of power by the municipal assembly, unreasonable on its face, and if applied to the calling of defendant — that of making wooden chancels, altars, etc. — it would deprive him of the full use of his property without compensation and without due process of law. It is therefore void.
    Appeal from St. Louis Court of Criminal Correction.— Hon. Wilson Taylor, Judge.
    Reversed.

      Leahy, Saunders & Barth for appellant.
    (1) This ordinance is in flat conflict with. Laws 1871, p. 189, sec. 1. Also see Woerner’s Rev. Code of St. Louis 1907, pp. 170-173, which undertakes to regulate the same subject-matter. The proviso in this ordinance is a curiosity. Apparently it gives the municipal assembly the right to establish nuisances by permit, and thereby ruin the property of others without compensation, whereas the ordinance itself destroys, without compensation, property which is not and could never be a nuisance. City ordinances must conform to State laws. Sec. 23, art. 9, Constitution; R. S. 1909, sec. 9582; art. 3, sec. 26, St. Louis Charter; St. Louis v. Meyer, 185 Mo. 583; St. Louis v. Tielkemeyer, 226 Mo. 130; State v. Stobie, 194 Mo. 15¡; St. Louis v. Williams, 23¡5 Mo. 503; St. Louis v. Wortman, 213 Mo. 131. (2) The ordinance is unconstitutional, because in conflict with secs. 21 and 30, art. 2, Constitution, and the Fourteenth Amendment to the Federal Constitution, in that it undertakes to deprive appellant of his property without any compensation, and without due process of law. St. Louis v. Dorr, 145 Mo. 466. (3) The ordinance is null and void, because it undertakes to declare something to he a nuisance which is not a nuisance at common law, and, under St. Louis v. Packing Co., 141 Mo. 375-, St. Louis has no power to declare by ordinance anything to he a nuisance which is not a nuisance. at common law. This ordinance undertakes to forbid all manufacturing within a distance of 600 feet of Tower Grove Park. Few forms of manufacturing are a nuisance, hut under this ordinance the knitting of socks by three women, in one house, within 600 feet of the park, earning their living thereby, would he illegal. (4) The ordinance is unreasonable, and for that reason null and void. It applies only to Tower Grove Park.

      Lambert E. Walther and Byron F. Babbitt for re spondent.
    (1) This ordinance, even though it he a police regulation, is entitled to a fair and reasonable construction, having in mind all the facts and circumstances surrounding the case. Railroad v. Carlinville, 103 111. App. 251; 28 Cyc. 38. (2) The ordinance in. controversy is fair and reasonable, and is a proper exercise by the city of St. Louis of its police power, both under art. 9, secs. 20^25, of the State Constitution; and also under art. 3, sec. 26, subdivision 5, and paragraphs 6 to 14. St. Louis v. Frein, 9 Mo. App’. 590; State v. Beattie, 16 Mo. App. 131; City v. Russell, 116 Mo. 248; St. Louis v. Jackson, 27 Mo; 37; Ex parte Lacey, 38 L. R. A. 640; Meeker v. Van Rensselaer, 15. Wendl. (N. T.) 307; McKnight v. Toronto, 3 Ont. Reps. 284; Adv. Co. v. St. Louis, 235 Mo. 99;
   BOND, 0.

Defendant is the owner of a two and a half stock brick building on Arsenal street, within six hundred feet of Tower Grove Park, in the city of St. Louis. The building was erected under a permit issued by the building commissioner on October 291, 1907. The testimony tends to show, that subsequent to the ordinance hereinafter referred to it was used by defendant for making altars, chancels and carved wood, such as are used in churches; that the material of which these articles were constructed was prepared at planing mills and delivered at the residence of defendant; that he maintained there three saws, propelled by an electric motor, which were used in adapting the material for the purposes had in view; that he employed on an average of six men to assist in this work, which was conducted and carried on after the adoption of an ordinance enacted by the municipal assembly of the city of St. Louis on the 19th of November, 1907, to-wit:

“Be it ordained by the Municipal Assembly of the City of St. Louis, as follows:

“Section One. Hereafter it shall not be lawful for any person, company of persons, firm or corporation, to operate, conduct or carry on a stone quarry, or brick kiln, or soap factory, or candle factory, or slaughter house or garbage works, or bone factory, or rendering factory, or livery stable, or vitriol factory, or tannery, or sawmill, or planing mill, or furniture factory, or box factory, or boiler works or rolling mill, or lumber yard, or scrap-iron yard, or rag yard and warehouse or manufacturing plant of whatsoever size, wherein machinery of any kind whatsoever shall be maintained or operated by means of steam, electricity, gas or other motive power, in any building, or any lot of ground within six hundred feet of Tower Grove Park, without permission to do so has first been obtained from the Municipal Assembly by a proper ordinance; nor shall any existing house, shed or structure be used, altered, changed, removed or repaired so as to establish, conduct, open, carry on or maintain any such business or occupation within said limits without similar authority. Any person, company of persons, firm or corporation violating the provisions of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than one hundred dollars for each and every day such stone quarry, brick kiln, soap factory, candle factory, slaughter house, garbage works, bone factory, rendering factory, livery stable, vitriol factory, tannery, sawmill, planing mill, furniture, factory, box factory, boiler works, rolling mill, lumber yard, scrap-iron yard, rag yard and warehouse or manufacturing plant, wherein machinery shall be maintained or operated by means of steam, electricity, gas or other motive power, at or in the premises occupied by them within six hundred feet of Tower Grove Park at the time of the passage of this ordinance.”

Defendant was charged with a violation of this' ordinance by an information of the city attorney of St. Louis, filed in the police court, in that, on March 26, 1909, he “did then and there unlawfully, and without permission so to do having by him been first obtained from the municipal assembly of the city of St. Louis, by a proper ordinance, operate, conduct and carry on a certain manufacturing plant for the manufacture of altars, chancel rails and other articles of church furniture, wherein is, and at said time or times was contained machinery of divers kinds and character, and which said machinery so contained in said premises as aforesaid, was and is maintained or operated by means of steam, electricity, gas or other motive power, contrary to the ordinance in such case made and provided. ” After a trial upon a plea of not guilty, defendant was discharged. An appeal was taken by the city to the St. Louis Court of Criminal Correction, where the defendant was again tried; and, upon waiver of a jury, found guilty and fined $100. Defendant filed a motion for new trial, attacking the constitutionality of the ordinance for certain reasons, which will be adverted to as far as necessary in the opinion. After the overruling of his motion, he appealed to this court.

OPINION.

I. Tower Grove Park is a benefaction of Henry Shaw. It was created and is governed by statute. [Laws 1867, pp. 172-175.] It is not under the control and supervision of the park commissioner of St. Louis. [Charter of St. Louis, art. 8, sec. 1.] To protect it from contiguous nuisances enumerated therein, an act of the Legislature has been enacted forbidding their erection within the limits of one quarter of a mile in any direction from the exterior lines of the park. [Laws 1871, p. 189, sec. 1.] This city ordinance includes five of the callings mentioned in the legislative act and sixteen other callings not referred to in the act, and prohibits the existence of any of the occupations described in the ordinance within a radius of six hundred feet of Tower Grove Park. As far as the ordinance is inconsistent with the act it is invalid, since all ordinances of the city of St. Louis must conform to relevant state laws. [St. Louis v. Tielkemeyer, 226 Mo. 130; St. Louis v. Williams, 235 Mo. 503, and eases cited.] The information charges defendant with violating one of the callings mentioned in the ordinance which is not embraced in the state statute, to-wit: the maintenance and operation without permission evidenced by a proper ordinance of “a certain manufacturing plant for the manufacture of altars, chancel rails and other articles of church furniture ” in his building, wherein was contained machinery operated by steam, electricity, gas or other motive power. Appellant insists that this provision of the ordinance is unconstitutional in that its enforcement would deprive Mm of Ms property without compensation and without due process of law, and that it is unreasonable on its face. A municipal corporation only possesses and can exercise the following powers: (1) Those granted in express words; (2) those necessarily or fairly implied in or incident to the powers expressly granted; (3) those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the ’ corporation, and the power is denied.” [St. Louis v. Bell Telephone Co., 96 Mo. l. c. 628; St. Louis v. Eddy, 123 Mo. l. c. 557; City of Independence v. Cleveland, 167 Mo. 388.] In the exercise of such powers a municipal corporation can enact no ordinance which violates the Constitution of the State or the United States, or which contravenes the statutes and decisions of this State. It is the settled- law that a municipal corporation “has no power by ordinance to declare that to be a nuisance which is not so in fact, or to suppress in part or in toto any business within its limits which is not a nuisance per se.” [St. Louis Gunning Co. v. St. Louis, 235 Mo. l. c. 147, et cases cited.] The clause of the ordinance upon which the information against defendant was framed refers to a calling which is not' a nuisance per se, nor had it become such as carried on by defendant. Hence the city of St. Louis had no power under its charter to prohibit or abate it. It was a gainful occupation which the defendant was lawfully entitled to- pursue in the manner which the evidence shows. The city had no specific power under its charter to regulate it,, nor any authority so to do under the general welfare clause or as a police regulation. [St. Louis v. Dorr, 145 Mo. 466.] The police power is a necessary and wholesome faculty of municipal government, but it only extends to the regulation of employments prejudicial to the public safety, health, morals and good government of the citizenry, and it ‘ ‘ ends where those public interests are not beneficially served thereby.” [Gunning Co. v. St. Louis, supra, l. c. 200.] It cannot sanction the confiscation of private property for aesthetic purposes. It was not shown in this case that there was any status of affairs in St. Louis which demanded the inclusion within this ordinance of a prohibition against the maintenance of a “manufacturing plant of whatsoever size, wherein machinery of any kind whatsoever shall be maintained or operated by means of steam, electricity, gas or other motive power, in any building, or any lot of ground within six hundred feet of Tower Grove Park.”

We think this provision was an unwarranted exercise of power by the municipal assembly; that it is unreasonable on its face; and if applied to the calling of defendant, it would deprive him of the full uses of his property without compensation and without due process of law. It is therefore void and afforded no warrant whatever for his conviction by the lower court.

The judgment is reversed and the defendant discharged.

Brown, G., concurs.

PER CURIAM. — The foregoing opinion of Bond, C., is adopted as the opinion of the court.

Ail the judges concur.