author: BURGESS, J.

text:
    THOMAS A. FELKER v. MARY A. BREECE and GEORGE BREECE, Appellants.
    Division Two,
    March 15, 1910.
    1. LOST DEED: Proof of Contents Before Loss. The order of introducing testimony is a matter resting largely in the discretion of the trial court; and it is not reversible error to permit a party to prove the contents of a lost deed before its loss is shown, where its loss is subsequently satisfactorily established.
    2. -: Proof of Loss: Proof of Contents: Establishing Title. The land belonged to Owens and plaintiff claimed through him by a lost deed made to Crawford in 1860, and by another deed made by Crawford’s only heir to plaintiff in 1905. The inventory of Crawford’s estate made in 1866, contained this memorandum: “Deed of Richard Owens and wife, dated February 28th, 1860, recorded in Book C, p. 499, Maries County, Mo., for southwest quarter of section 7, and northwest quarter of section 18, township 40, range 10, containing 314.17 acres in Maries county, Mo.” — which was the land in suit. The evidence showed that Record C was destroyed by fire after 1860, and the maker of this memorandum forty years later testified that it was in his handwriting, that he signed it, that he knew it was a correct memorandum made from the deed itself which he held in his hand, but that independently of those facts he could not recall ever having seen the deed. Crawford died leaving an only daughter, and she testified that the deed was given to her by her administrator when she came of age in 1882, that she kept it in a locked box and the last time she saw it was in 1900; that later her husband died and her papers had become scattered and since then she had searched for the paper a dozen times, in the box, her trunk, and safety deposit locker, without finding it, and that it was after her husband’s death that she learned the record of this deed had been burned. She then testified as to its contents thus: “The deed was from Richard Owens and wife to James Crawford, and, it was for the sale of land in Maries county — the township I don’t remember, nor just how or where the land was situated. It was for 314 acres and a fraction. I remember that it was signed. This is all I remember of the inside of the deed. On the outside were the names of Richard Owens and wife, and James A. Crawford, and other writings which I don’t remember.” The record showed taxes were paid by the Crawford estate from 1881 to 1889 and thereafter for a number of years by this daughter. Defendant obtained a deed in 1905 from an heir of Owens for $10, paid the taxes for 1904, and had been in possession since he bought and showed no payment of taxes by Owens or his grantor. Held, first, that the evidence of the loss of the deed laid a sufficient foundation for proving its contents; and, second, that the court properly decreed the title to be in plaintiff.
    3. PAYMENT OF TAXES. A failure by defendant and those un- ■ der whom he claims to pay taxes for more than thirty years is admissible in evidence as tending to show that neither they, nor the one under whom they claim, claimed to be the owners of the land.
    4. QUIETING TITLE: Plaintiff’s Recovery: On Strength of His Own Title. The rule in ejectment that plaintiff must recover, if at all, upon the strength of his own title, and not on the weakness of defendant’s, does not apply to a suit under Sec. 650, R. S. 1899, to quiet title. Plaintiff is entitled to a decree if he shows a better title than defendant does
    Appeal from Maries Circuit Court. — Eon. Wm. II. Martin, Judge.
    Affirmed.

      W. H. Allen for appellants.
    (1) One who relies, to sustain his title to real estate, upon a lost deed, or asserts rights under any lost instrument, must prove the execution, loss and the material parts of such deed or instrument, by clear, cogent and convincing evidence; the same measure of proof is required as in suits for reformation of instruments, and the evidence must be of the clearest and most satisfactory character. Peters v. Worth, 164 ÍMo. 431; Napton v. Leaton, 71 Mo. 358; Dagley v. Black, 197 111. 53; Yan Horn v. Munnell, 145 Pa. St. 497; Edwards v. Noyes, 65 N. Y. 125; Connor v. Pushor, 86 Me. 300'; Shorter v. Shepard, 33 Ala. 648; Williams v. Miles, 68 Neb. 463; Clark v. Turner, 50> Neb. 290’; Jacques v. Horton, 76 Ala. 238; Slipman v. Telschow, 24 Ohio Cir. Ct. 236; Jones on Evidence (2 Ed.), sec. 227. (2) Where it is sought to pass title to real estate by parol or secondary proof of the contents of a lost deed, such proof must establish, not only its legal execution by the supposed grantor, but all of the material and essential parts of such instrument as a legal conveyance; must show clearly and pointedly its tenor and contents, and whether it conveys a fee simple, a life estate, a term for years, or otherwise, as the case may be. Dagley v. Black, 197 111. '53; Edwards v. Noyes, 65 N. Y. 125'; Shorter v. Shepard, 33 Ala. 648; Yan Horn v. Munnell, 145 Pa. St. 497; Roe v. Irwin, 32 Ga. 39; 3 Wigmore on Evidence, sec. 2105; Jones on Evidence (2 Ed.), sec. 227. (3) Before secondary evidence of the contents of a written instrument can be admitted in evidence, the existence and legal execution of such instrument must be clearly established, and its loss shown. Zollman v. Tarr, 93 Mo. App. 234; Shea v. Seelig, 89 Mo. App. 149; Linn v. Insurance Co., 78 Mo. App. 203; Holman v. Bacchus, 24 Mo. App. 636; Hunt v. Selleck, 118 Mo. 593; Atwell v. Lynch, 39 Mo. 519; Perry’s Admrs. v. Roberts, 17 Mo. 36; Hardin v. Lee, 51 Mo. 244; Johnson v. Gas Co., 90 Ala. 505; Burke v. Hammond, 76 Pa. St. 172.

      W. S. Pope and J. W. Terrill for respondent.
    The evidence that Richard Owens and wife conveyed the land to James. M. Crawford was as strong and conclusive as the circumstances of the case could make it, and grounds for introduction of secondary testimony were complete. Winham v. Kline, 77 Mo. App. 36; Abel v. Strimple, 31 Mo. App. 86; Briggs v. Henderson, 49 Mo. 531; Fonlk v. Colburn, 48 Mo. 225; Henry v. Diviney, 101 Mo. 378; West v. West, 75 Mo. 204; Bogart v. Greene, 8 Mo. 115; Smith v. Lindsay, 89 Mo. 76; Einstein v. Holliday-Klotz Co., 118 Mo. App. 184; Ming v. Olster, 195 Mo. 460; Graton v. Holliday-Klotz Co., 189 Mo. 322; Hannah v. Insurance Co., 109 Mo. App. 152; Montgomery v. Dormer, 181 Mo. 5; Liles v. Liles, 183 Mo. 326; Stephans v. Metzger, 95 Mo. App. 609; Rissler v. Insurance Co., 150 Mo. 366; Addis v. Graham, 88 Mo. 197; Perkins v. Fielding, 119 Mo. 149.
   BURGESS, J.

This is a suit under section 650, Revised Statutes 1899, to ascertain and determine the title to certain land described in the petition as the southwest quarter of section seven, and the northwest quarter of section eighteen, township forty, of range ten, in Maries county, Missouri, and containing three hundred and twenty acres.

Both parties to the suit claim under Richard Owens as the common source of title. Plaintiff bases his claim of title to the land in controversy on a quitclaim deed, dated December 1, 1905, from Margaret C. Mulhall, only heir of James M. Crawford, quitclaiming said land to plaintiff, and on an alleged lost deed to said land- from the said Richard Owens to the said Crawford, which deed, as claimed by plaintiff, was dated February 28, 1860, and recorded in Book “C,” p. 499, in the office of the recorder of deeds of Maries county,, and the record thereof was burned.

To establish the execution and contents of said alleged lost deed from Richard Owens to James M. Crawford, plaintiff offered and read in evidence the deposition of Robert A. Bakewell, of the city of St. Louis, who testified that he made the inventory of the estate of James M. Crawford, deceased, filed in the probate court of said city, and identified said inventory as having been made by him, and signed by him as a witness thereto. This inventory, a certified copy of which was introduced in evidence, contained, among others, the following recital:

“Deed of Richard Owens and wife, dated February 28, 1860, recorded in Book 0., p. 499, etc., Maries county, Missouri, for southwest quarter of section 7, and northwest quarter of section 18, township 40, range 10, west of fifth principal meridian, containing 314.17 acres, in Maries county, Missouri.”

This inventory purported to have been signed by Mr. Bakewell, as a witness, on March 16, 1866. Apart from the inventory, however, the witness had no independent recollection of the deed. The question was asked him if he could recollect the time and place and the document from which he made the memorandum contained in the inventory, to which question he replied: “As to the place I have no recollection; but as to the fact that I held in my hands, on the date of that inventory, a deed purporting to be made by 'Richard Owens and wife, as stated in the inventory, I know to be a fact, for unless it was so I would not have set it down as my handwriting shows that I did, nor would I have sworn to the correctness of the inventory. Q. Have you any independent recollection of it? A. I could not for the life of me, from any independent recollection aside from seeing the inventory, say anything about its contents. Q. Or the deed it describes, either? A. I have no independent recollection of the deeds, bnt I know that the deeds set forth in that inventory are correctly set forth, and were in my hands at the date named. I know that from the fact that I signed and swore to the inventory. Q. Now, from yonr habit of doing business, if there had been anything defective about that deed that you noticed, what would you have done about making the inventory? A. I would have noted the fact if it was a glaring deficiency such as the omission of the name of a party, or no certificate of record of the deed, or no acknowledgment. I think it would not have escaped me. Q. You could not state any of the contents of that deed, from memory? A. No, I could not. ’ ’

Plaintiff also introduced in evidence the deposition of Margaret C. Mulhall, who executed the quitclaim deed to plaintiff. She testified that she was the daughter and only surviving heir-at-law of James M. Crawford, who died in 1866; that her father owned a tract of land in Maries county, containing 314 acres and a fraction; that she paid taxes on it, the first payment being in 1882, and the last payment in 1901, but that the tax receipts had been mislaid and she was unable to find them; that she was unable to describe the land; that she had seen, and had in her possession in 1901, a deed from Richard Owens and wife to James M. Crawford, and that the same had been mislaid or lost; that she could not give the contents of the instrument, except that it was for 314 acres of land in Maries county, and had on the back thereof a notation to the effect that it was from Richard Owens and wife to James M. Crawford. She did not know whether the deed had been recorded, but she presumed that it had been recorded during her father’s lifetime, as it was handed to her by the administrator. She had tried to sell the land since her husband’s death in 1900, and while trying to sell it was informed that the courthouse was burned a number of years ago, and that some of the records, including the record of this deed, had been destroyed; that she heard this in 1901, after she had misplaced the deed.

L. N. Hawkins, circuit clerk and recorder of deeds of Maries county, testified on behalf of plaintiff that parts of deed records “B,” “C” and “E” were missing from his office. Upon examining certain other records, the witness testified that the date of the filing of the last deed recorded in “A” was June 15, 1857, and of the first deed recorded in “D,” November 7, 1860; that “E” was gone, and that the first deed recorded in “F” was in December 10, 1866.

Testifying in his own behalf, plaintiff stated that he had been deputy collector of the revenue for Maries county from 1881 to 1885-, and collector of the revenue from 1885 to 1889, and that during that period of time the taxes on the land in question were paid by the Crawford estate; that for some years afterwards the taxes had been paid by him as agent for Margaret C. Mulhall, and that at no time while he was in office were any taxes paid on said land by Richard Owens. Plaintiff further testified that the land had been sold for delinquent taxes in the year 1898, under an execution in a suit for taxes against the unknown heirs of Richard Owens, and that he had purchased the same at the sale. He also testified that he remembered the occasion of the burning of the Maries county courthouse, he being at the time about eight years old.

John W. Terrill, one of plaintiff’s attorneys, testified that he had made an examination of the .records with reference to the assessment of the property, and that for a number of years, so far as his examination extended1, the property had been assessed to M. Crawford.

Defendants introduced in evidence a warranty deed executed by Mary Bierman and husband, Henry Bierman, of the city of St. Louis, conveying the land in controversy to Mary A. Breece, defendant, said deed being dated March 17, 1905, and recorded March 20, 190'5. The consideration named therein was one thousand dollars.

Defendants also introduced in evidence the deposition ox Mary Bierman, the grantor named in said warranty deed, who testified that Bichard Owens, the common source of title, died in 1880', and that she was his daughter and only surviving heir-at-law. She further testified that ten dollars was the considera^ tion paid her for said deed.

Defendant George W. Breece, husband of Mary A. Breece, testified that he and his wife were in possession of said land, and exercised ownership over it since the time his wife purchased the same from Mary Bierman, on March 17,1905. He further testified that, early in 1905>, he learned that the land was about to be sold for delinquent taxes as the result of a suit for taxes against the unknown heirs of Bichard Owens, and that he then went to St. Louis and secured from Mrs. Bierman the said deed to his wife, paying ten dollars as the consideration therefor.

At the close of the evidence the defendants asked the court to declare the law to be that, under the pleadings and the evidence, plaintiff was not entitled to recover, which the court refused to do, the defendants excepting.

The court found the issues for the plaintiff, and by its judgment, duly entered of record, decreed that plaintiff was the absolute owner of the land in dispute, and that defendants did not have any title, estate or interest therein, and also rendered judgment against defendants for costs. From this judgment defendants appeal.

Defendants contend that the court erred in admitting any testimony as to the contents of the alleged lost deed before its execution and loss were shown. This must have reference to Judge Bobert A. Bake-well’s testimony and to some few preliminary questions put to Mrs. Mulhall regarding the land in controversy, and before she testified as to the loss of the deed.

In Cross v. Williams, 72 Mo. l. c. 580, Norton, J., speaking for the court said: “While the rule is well established that before the contents of an alleged lest writing can be shown, its loss must he established to the satisfaction of the court; yet, when the evidence as to its contents is first received and satisfactory proof made of its loss afterward, the mere fact of reversing the order for the introduction of evidence cannot be considered as reversible error, especially when the evidence, as in the present case, as to the loss of the writing, is full and satisfactory;” citing State v. Linney, 52 Mo. 40. It has been many times ruled by this court that the order of introduction of evidence is a matter resting largely in the sound discretion of the trial court, and that if that discretion has not been abused to the detriment of the other party, the action of the court will not be disturbed. [King v. Gilson, 206 Mo. 264; Garland v. Smith, 127 Mo. 567; State v. Buchler, 103 Mo. 203; State v. Murphy, 118 Mo. 7.]

The testimony of Judge Bakewell as to the identify of the deed from Owens to Crawford is not as clear and strong as it might be; yet, it must be remembered that the inventory of the Crawford estate covered a very large number of items, among them memoranda of several conveyances of land, including the one in question, and it could not be expected that his memory of the deed and its contents could be very clear, the inventory having been made in 1866, forty years before the trial of this suit. The witness was very careful, as became a reputable lawyer and former judge of the St. Louis Court of Appeals, not to overstate or color the facts as he remembered them. He was attorney for the administrator of the estate, assisted in making the inventory, the memorandum of the deed in question being in his handwriting, and the inventory was signed by Mm as a witness thereto. His testimony, in substance, was that while he made such memorandum, he did not, independently thereof, have any recollection of the deed or its contents, but that, from his methods of business as a lawyer, he knew that such deed must have been in his hand at the time he made the memorandum, and that if the deed showed any deficiency, such as the omission of the name of a party, or of the certificate of record, or of the acknowledgment, he would have made a note of such fact.

Mrs. Mulhall, who quitclaimed the land to plaintiff, testified that she made diligent search for the deed from Richard Owens to her father, James M. Crawford, but was unable to find it. She stated that’ the deed first came into her possession in 1882, when she became of age, and that it was handed to her by the administrator. The last time she remembered seeing it was in February, 1900, when she saw it among ether papers in her possession, and kept by her in a private lock box. After that her husband died, and her papers and belongings became scattered. Since then she searched for the paper in said lock box, also in a safe deposit locker, where she for a time kept her private papers, and went through her “trunks, boxes, etc., a dozen times,” without finding it. After her husband’s death, in 1900, she tried to sell the property, when she was informed that the courthouse had been burned a number of years before, and that a number of records were burned, the record of this deed among them. This evidence, we tMnk, laid a sufficient foundation for the secondary evidence offered as to the contents of the deed. The sufficiency of the proof of the loss or destruction of a written instrument, in order to permit secondary evidence of its contents, rests largely in the discretion of the trial court. [Liles v. Liles, 183 Mo. l. c. 336; Henry v. Diviney, 101 Mo. 378; Greenleaf on Evidence (16 Ed.), vol. 1, sec. 563b.]

After giving her testimony as to the loss of the deed, the witness was asked to describe it and its contents. Her answer was: “The deed was from Richard Owens and wife to James M. Crawford, and it was for the sale of land in Maries county — the township I don’t remember, nor just how or where the land was situated. It was for three hundred and fourteen acres and a fraction. I remember that it was signed. That is all I remember of the inside of the deed. On the outside were the names of Richard Owens and wife, and James A. Crawford, and other writings on the hack of the deed which I don’t now recall.”

It was established by competent evidence that a number of deed records had for a long time been missing from the office of the recorder of deeds of Maries county, among them deed record “C.” The memorandum made by Judge Bakewell in the inventory referred to recited that the deed in question was recorded in book “C,” at page 499. The proof was that the date of the filing of the last deed recorded in hook “A” was June 15, 1857, and of the first deed recorded in book “D,” November 7, 1860. The said memorandum recited that the deed was dated February 28, 1860, which came between the two other dates; so that the facts in evidence regarding these important matters are in perfect harmony.

We cannot agree with defendants that the court erred in admitting evidence of the assessment and payment of táxes. The evidence showed that from 1881 to 1889 the taxes on said land were paid by the Crawford estate, and that for a number of years afterwards the taxes thereon were paid by the plaintiff, acting as agent for Mrs. Mulhall, only heir of James M. Crawford. There was no evidence that any taxes had been paid by Richard Owens ’ heir, Mary Bierman, through whom defendants claim title, and if any taxes were so paid, it is fair to assume that defendants’ counsel would be quick to show it.

As said by Judge Scott in Draper v. Shoot, 25 Mo. 197, “it would be an argument against one claiming to hold land, that he should for twenty years fail to pay the annual assessments upon it. If unexplained, such omission would certainly weaken the pretense that he claimed the land as his own, as such conduct is contrary to the course of men of ordinary prudence in relation to property to which they set up a claim. The payment of taxes may go to the jury with other circumstances.” So it was proper for the court, in determining the question of title in this case, to take into consideration the evidence in relation to the payment of taxes in connection with the other and more important facts in evidence.

True, the record shows that this land was sold in 1898 to satisfy a judgment for delinquent taxes against the unknown heirs of Richard Owens, and that plaintiff became the purchaser; but he did not rely on his tax deed to support his claim, nor did he offer it in evidence. An examination of the assessor’s books failed to show, however, that the taxes, since 1880, had been assessed to Richard Owens or his heirs. But these facts have little weight in this case, and the court so held.

The only evidence introduced by defendants tending.to show that Richard Owens was the owner of the land in controversy at the time of his death was the testimony of Mary Bierman, who executed the deed of March 17, 1905, to defendant Mary A. Breece. After testifying that she was the only living heir of Richard Owens, this leading question was put, to her: “You knew also, did you not, that your father owned this land at the time of his death?” Her answer, was, “Certainly I did.” Beyond that, there was no proof whatever of Mrs. Bierman’s ownership of the land, or that she exercised any acts of dominion over it, or made any claim to it, or paid any taxes thereon. In fact it is not shown that, before she was approached by defendant George W. Breece on the question of making the deed to his wife, she was aware of the existence of this land. While the deed from Mrs. Bierman to Mrs. Breece gave the consideration as one thousand dollars, the fact was that the consideration paid was ten dollars. Breece testified that, early in 1905, he saw the fact advertised in a newspaper that the land was to be sold for delinquent taxes under a judgment against the unknown heirs of Richard Owens, and learning that Owens’ heir lived in St. Louis, he hunted her up, and after telling her that the land was about to be sold for taxes she agreed to execute a deed to his wife for ten dollars. Under the deed so procured defendants went into possession of the land, and paid the taxes thereon for the year 1904. Certainly, under the evidence, defendants’ claim of title rests upon a very dubious and uncertain foundation.

While in suits in ejectment the rule is that the plaintiff must show the legal title to' be in him, and must recover on the strength of his own title or right to possession, and not on the weakness of defendant’s title, that is not the rule which governs in suits under section 650, R. S. 1899. The question is thoroughly discussed in Graton v. Land & Lumber Co., 189 Mo. 322, which was a suit under said statute. In that case Judge Gantt, speaking for the court, said:

“It is to be observed that by the language of the enactment the controversy is limited to the respective claims of the parties to the action. The statute does not require that the plaintiff shall establish an indefeasible title against the world. The statute does not authorize a proceeding which would make the decree operate as a judgment in rem. By its terms no right or title can be litigated save and except such as may be asserted by the plaintiff and the defendant respectively, and a decree under the statute would not be binding against strangers to the title and party to the suit. This section has often been before this court since its enactment, and the statute has been given a highly remedial and beneficial construction. Its purpose clearly is to supplement the old equitable remedy of removing cloud upon.title, and is much more comprehensive in its scope. [Huff v. Land & Improvement Company, 157 Mo. 65; Garrison v. Frazier, 165 Mo. 40; Ball v. Woolfolk, 175 Mo. 278,]
“Under a similar but more restricted statute than ours, section 3490, II Compiled Laws of 1857 of Michigan, by which any person having possession may institute a suit against another person setting up a claim thereto in opposition to the title claimed by the complainant, and require the defendant to establish his title to such land, it was ruled in Hall v. Kellogg, 16 Mich. l. c. 138, that the complainant was only bound to make out a case as against the defendant, and ‘would not be required to make proof of title beyond that which, when establishing a presumptive case, had not been met by any proofs adequate to shake or destroy it.’ The contention in that case was that the statute required the complainant to establish his title by clear and satisfactory proof. In answer to that contention the Supreme Court of that State said: ‘If a bill under the statute in question could be filed against all possible parties, so as to make the decree operate as a decree in rem, to quiet the title against all the world, there would be great force in this objection, and it would be necessary to decide what amount of proof would suffice to shut out any adverse propositions or possibilities. But we have already decided in Hunton v. Platt, 11 Mich. 264, that a bill seeking to bring in defendants having distinct and disconnected adverse claims would be multifarious. No claim can be litigated by complainant in this cause, except such as may be asserted by the defendant. The decree cannot be binding against strangers to the title and parties in this suit. We can see, therefore, no reason for requiring of complainant any proof of title beyond that which, when making out a presumptive case against the defendant, has not been met by any proofs adequate to shake or destroy it. ’ ”

The evidence in this ease that Richard Owens and wife conveyed the land in controversy to James M. Crawford was as strong and conclusive as the circumstances of the case could call for, and while the execution and contents of the deed, by reason of the loss of the deed and the destruction of the record, could only be proved by secondary evidence, every part and particle of that evidence was consistent with and supported every other part, and was satisfactory under the circumstances. ■

We conclude that the plaintiff proved at least a presumptively good title as against the defendants, and as his proof of title was not met by any proofs adequate to shake or destroy it, the judgment, under the ruling in Graton v. Land & Lumber Co., supra, should not be disturbed. The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    CITY OF ST. LOUIS v. NATHANIEL K. KING, Appellant.
    Division Two,
    March 15, 1910.
    1. MUNICIPAL ORDINANCE: Affecting Public Morals. Although an act sought to be prohibited by a city ordinance is vicious, and 'may properly be prohibited by the General Assembly, it is not a proper subject for municipal legislation unless the city’s charter grants the power to the city.
    2. -: -: Express or Implied Power. The fact that the city ordinance is designed to prevent the practice of something that is immoral, or something that the General Assembly might punish, is not sufficient to uphold it. Even though that is its design, it cannot be held to be valid unless authority in the municipal assembly to enact it is found in the charter — either in the express language or fairly and necessarily implied in . the powers expressly granted or essential to the declared objects and purposes of the corporation.

      3. -: -: Obscene Advertisements: Doctors: Supplementing Statutes. The city cannot enact an ordinance preventing obscene advertisements which goes further than statutes concerning objectionable advertisements enacted by the General Assembly. That is expressly prohibited by Sec. 625.8, R. S. 1899, which says that cities shall restrict their ordinances to conform to “the State law upon the .same subject,” unless they are “otherwise authorized by some special provision of the charter;” and neither the general welfare clause of the charter authorizing the council “to pass all such ordinances, not inconsistent with the provisions of this charter or the laws- of the State, as may be expedient, in maintaining the peace, good government, health and welfare of the city,” nor the clause of the charter 'granting power to pass ordinances “to license, tax and regulate lawyers, doctors, doctresses,” is a special charter provision authorizing the city to enact an ordinance preventing a physician from advertising his ability to cure venereal diseases.
    4. -: Obscene Advertisement. The advertisement by a physician asserting his ability to cure “contracted blood poison,” set out in the statement, is not obscene in the sense used in the law, and does not contain any reference to any of the diseases denounced in the.invalid ordinance he was charged with violating.
    5. -: —s-: What Is. The word “obscene,” when used in reference to an advertisement in a newspaper, means, containing immodest and indecent matter, the reading whereof would have a tendency to deprave and corrupt the minds of those into whose hands the publication might fall.
    Appeal from St. Louis Court of Criminal Correction. —Hon. Hiram N. Moore, Judge.
    Reversed.

      R. P. & C. B. Williams for appellant; Lehmann & Lehmann and E. M. Grossman of counsel.
    (1) A municipal corporation possesses and can exercise the following powers and no others. First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable. Dillon, Munic. Corp., sec. 89; Tiedemann, Mun. Corp., sec. 110'; Knapp v. Kansas City, 48 Mo. App. 485; Carpenter v. Realty Co., 103 Mo. App. 480; State v. Butler, 178 Mo. 272. (2) Without express authority, either by statute or by its charter, the city of St. Louis has no authority to prohibit an act unless such act tends to disturb the public peace or is injurious to the public health. State v. Taft, 118 N. C. 1193; Bregguglia v. Vineland, 53 N. J. L. 168; Cornwallis v. Carlile, 10 Ore. 139; Minnesota v. Hammond, 40 Minn. 43; Walsh v. Unioir, 13 Ore. '589. (3) If an act tends to disturb' the public peace or is injurious to the public health it constitutes a nuisance and can be prohibited by the municipality under the authority conferred upon it to abate nuisances ; but the municipality has authority even under this broad power to prohibit only such acts as have been declared to constitute a nuisance either by the common law or by statute. The municipality has no power to declare that to be a nuisance which is not such at common law or by statute. St. Louis v. Packing Co., 141 Mo. 375; State v. Taft, 118 N. C. 1193; Carey v. Washington, Fed. Cas. 2404; Cooley, Const. Lim. (7 Ed.), p. 883; Carpenter v. Realty Co., 10 Mo. App. 480; Allison v. Richmond, 51 Mo. App. 133; State v. Mott, 61 Md. 297; In re Hong Wah, 82 Fed. 623. (4) Any exercise of the police power deduced from the “general welfare” clause in the city charter, must be essential to the declared objects and purposes of the corporation — not simply convenient but indispensable. Cooley, Const. Lim. (7 Ed.), p. 280; Carpenter v. Realty 'Co., 103 Mo. App. 480; Knapp v. Kansas City, 48 Mo. App. 485; Tiedemann’s Police Powers, sec. 212; Dillon, Munic. Corp., sec. 472; 15 Am. and Eng. Ency. Law, 1187; Williams v. Augusta, 4 Ga. 509; Mt. Pleasant v. Blaze, 11 Iowa 399. (5) The validity of an ordinance enacted pursuant to the police power deduced from the general welfare clause depends upon the necessity for it in aid of the corporate purpose of promoting the peace, health and welfare of the people, the needs of the people in the city requiring peculiar legislation on account of their close interdependence due to urban life. Ordinances that undertake to regulate conduct whose effect for evil is not peculiar to the social conditions due to congestion of population have been held to be invalid. Minnesota v. Hammond, 40 Minn. 43; Walsh v. Union, 13 Ore. 589; State v. Herne, 115 N. C. 739; Bregguglia v. Vineland, 53 N. J. L. 168; Buell v. State, 45 Ark. 336; Paralee v. Camden, 49 Ark. 165; St. Louis v. Roche, 128 Mo. 541; St. Louis v. Meyer, 185 Mo. '583. (6) A municipality, without express legislative authority, has no power to go beyond the common and statutory law of the State in its legislative functions on behalf of the peace, health and good order of the town. State v. Belvidere, 44 N. J. L. 350. (7) Municipal corporations have no power to pass ordinances which shall regulate or attempt to regulate the conduct of those outside the municipal limits. Abbott, Munic. Corp., sec. 129. Nor to pass ordinances which affect the affairs of those outside the city limits. Such ordinances a-re held to be unreasonable, oppressive and unequal. Lamar v. Weidman, 57 Mo. App. 507. (8) Without an express declaration of the Legislature on the subject, it is for a jury under proper instructions from the court, and not for the municipal assembly, to say what constitutes obscenity.- People v. Muller, 32 Hun (N. T.) 209. (9) “No implied power to pass by-laws, and no express general grant of the power, can authorize a by-law which conflicts with the statutes of the State, or with the general principles of the common law adopted or in force in the State.” Dillon, Munc. Corp., sec. 366; St. Louis v. Meyer, 185 Mo. 583; Constitution, art. 9, sec. 23; R. S. 1899', sec. 6258; Moberly v. Hoover. 93 Mo. App. 663; Kansas City v. Neal, 49. Mo. App. 72 j St. Louis v. Bentz, 11 Mo. 61; St. Louis v. Sehoenbusch., 95 Mo. 618; Kansas City v. Hallett, 59 Mo. App. 160; Trenton v. Clayton, 50' Mo. App. 535.

      L. E. Walther and B. H. Charles for respondent.
    (1) The power to regulate doctors is expressly conferred by the charter. Charter of St. Louis, art. 3, sec. 26, clause '5. The power to prevent doctors from advertising the treatment of disgusting private and venereal diseases is included in the power to regulate doctors. The Act of 1879, Laws 1879, p. 45, which appears in the Statutes of 1899, with a slight change in the order of words, as section 5260; took away from all cities in the State any then existing power to license and tax doctors, but left unimpaired all power which had been conferred upon them to regulate doctors (otherwise than by taxing and licensing). Expressio vinius, exclusio alterius. (2) But even if there were'no express grant of authority, the city possesses such authority under the general welfare clause of its charter. Charter, art. 3, sec. 26, par. 14; St. Louis v. Schoenbusch, 95 Mo. 608; St. Louis v. Bentz, 11 Mo. 43; St. Louis v. Liessing, 190 Mo. 480; St. Louis v. Cafferata, 24 Mo. 94; State ex rel. v. Walbridge, 119 Mo. 393; St. Louis v. Vert, 84 Mo. 209; Woerner’s Rev. Code of St. Louis, pp. 338, 339; 870. (3) The construction of a power must not be so strict as to defeat the evident objects and purposes of its creation. State ex rel. v. Allen, 183 Mo. 283, 291. The construction should be in accordance with the intent of the charter-framers, to be gathered from the language and object of the charter provisions, and giving that language an interpretation neither strict nor strained. St. Louis v. Herthel, 88 Mo. 130 ;’ Railroad v. Railroad, 10'5 Mo. 562, 575, 576. (4) The constitutional question is not properly raised, there being no citation of any section of the Constitution which has been violated. And the court will not make a search for a constitutional defect when the defendant has not pointed it out. Hnlett v. Eailroad, 145 Mo. 35; State ex rel. v. Smith, 176 Mo. • 44; Excelsior Springs v. Ettenson, 188 Mo. 132; Independence v. Knoepker, 205 Mo. 342; Lohmeyer v. St. Lonis Cordage Co., 214 Mo. .685; State v. Cobb, 113-Mo. App. 156. ('5) The constitutional right to engage in business or to practice a profession does not imply any right to carry it on in a manner that may be dangerous to the health or good morals of the public. Thompson v. Van Lear, 92 S. W. (Ark.) 773. (a) There is no constitutional right to publish every fact or statement that may be true. State v. MdKee, 73 Conn. 22. (b) And the question whether the defendant is a licensed physician under the laws of the State is immaterial. U. S. v. Clarke, 38 Fed. 735. (c) The advertisement in question was not a standard medical work, although it may have made statements of fact well known to the medical profession, and although the ailments advertised are recognized by the medical profession and scientific men. U. S. v. Clarke, 38 Fed. Eep. 735. (d) The contents of a scientific treatise on venereal diseases may become indecent and obscene when sent out broadcast to the general public. See authorities under next point. (6) The advertisement inserted by the defendant was obscene. U. S. v. Smith, 45 Fed. 476; U. S. v. Martin, 50 Fed. 918; U. S. v. Chesman, 19 Fed. 497; IJ. S. v. Clarke, 38 Fed. 732.; Thomas on Lotteries, Frauds and Obscenity in the Mails, secs. 241-246; Commonwealth v. Landis, 8 Phil. 453; State v. McKee, 73 Conn. 22. (7) It is no objection to an ordinance that it covers the same ground as a statute. St. Louis v. Bentz, 11 Mo. 43; St. Louis v. Cafferata, 24 Mo. 94; St. Louis v. Delassus, 205 Mo. 578. (a) A defendant may even be subjected to two penalties for the same offense. St. Louis v. Cafferata, 24 Mo. 97; State v. Muir, 164 Mo. 610; State v. Gustin, 152 Mo. 108; Canton v. McDaniel, 188 Mo. 228; Lebanon v. Gordon, 99 Mo. App. 277. (b) Merely be-because two laws are different does not make them inconsistent, and the mere fact that an ordinance differs from the general laws of the State will not invalidate it, provided it is not inconsistent therewith. St.' Lonis v. Cafferata, 24 Mo. 97; St. Louis v. Delassus, 205 Mo. 578. (c) There is no inconsistency between section 1447 of the Municipal Code of St. Louis of 1901 and sections 2176, 2177 and 2178 of the Revised Statutes of 1899. Ex parte Hollwedell, 74 Mo. 402; St. Louis v. Cafferata, 24 Mo. 94; State ex rel. v. Walbridge, 119 Mo. 392. Municipal corporations are organized by the State for the express purpose of legislating for local needs. And if section 1447 of the St. Louis ordinances is invalid, then the great majority of the police ordinances of all the towns and cities in the State are probably invalid, and the Legislature must be looked to for the enactment of local police regulations, the very thing which is expressly prohibited by the Constitution.
   GANTT, P. J.

This was an action for the violation of an ordinance of St. Louis, known as Ordinance No. 19991, Section 1447, of the Revised Ordinances of said city, approved April 3, 1900, which provides: “Section 1447, Obscene Newspaper Advertisements Prohibited. — Any person who shall in the city of St. Louis advertise or cause to be advertised, in any newspaper printed or circulated in said city, or who shall print or publish any advertisement or notice in any newspaper printed or circulated as aforesaid, purporting to give information as to the treatment of venereal or private or womb diseases, or impotency, self-abuse, sterility or any disease pertaining to the genital organs, or purporting to give information from whom or where medical treatment or medicine may be procured in the above-mentioned cases, or any of them, shall be guilty of a misdemeanor and upon conviction, shall be fined not less than fifty nor more than five hundred dollars for each and every offense.”

Defendant was found guilty in the police court and appealed to the St. Louis Court of Criminal Correction, in which he filed a motion to quash, on the ground that the information did not state any offense under the law or the ordinance; that the ordinance was unconstitutional (hut without citing section or article of the Constitution); that it seeks to regulate matters which are not of municipal concern; that it unnecessarily prohibits the advertising of a legitimate and duly licensed business and is an unconstitutional invasion of personal liberty and imposes unnecessary restrictions upon the natural rights of physicians duly licensed by the State.

This motion was overruled and exceptions saved. The cause was then tried upon an agreed statement of facts, to-wit, that defendant was a duly licensed physician and had been practicing his profession a number of years in St. Louis; that the diseases set out in his advertisement are such as are recognized by the medical profession and their treatment is taught in the medical colleges and such diseases are commonly treated by the medical profession and in some cases the patient is cured and in some is only relieved. That the advertisement was put in the “Globe Democrat,” a daily newspaper published and printed and circulated in said city and throughout the State of Missouri; that the advertisement contained the following words and matter, to-wit:

“AN EXTRAORDINARY MEDICAL ANNOUNCEMENT.
“Free Examination and Diagnosing of any Deep-Seeded Disease of Man.
“Specific Blood Poison.
■ “It is well that all men should know the consequences of certain, terrible diseases, the consequences .if the disease is imperfectly treated. The gravest of these is specific, vital, contracted blood poison, the disease that is first manifested by a stubborn sore, later ■by a rash on the body, then by the breaking out of the ulcers, swelling of the glands, falling out of the hair .and eyebrows. You cannot mistake these symptoms.
“If you find yourself in the clutches of blood poison don’t waste time and money on hot-spring baths, specifics, mercury, potash or other mineral mixtures and poisons that will give only temporary relief.
“Dr. King’s cure for blood poison, originated and perfected by him, is absolutely safe, rapid and permanent, and leaves no injurious effects. Under his ■treatment every external symptom soon disappears, while the blood, the tissues, the nerve fibers, the bones and the whole system are cleansed, strengthened and restored to perfect health and purity.
“Nbevo-Yital Debility.
“Cerebral — When the mental forces are impaired.
“Spinal — When the spinal centers are involved and motor power is diminished.
Vital — When the great sympathetic nerve system is affected and the forces that govern the organs of life are reduced by the baneful reflex effects of diseases incident to the organs of the- pelvis.
‘ ‘ Private Diseases.
“Newly contracted and chronic diseases are cured by Dr. King. He relieves all burning and itching and stops inflammation and unnatural weakness in twenty-four hours; he effects cures in seven days. ’ ’

Upon the validity of section 1447 of the Municipal Code of St. Louis depends the correctness of the judgment of the Court of Criminal Correction, imposing upon him a fine for a violation of said ordinance.

On the part of the city it is asserted that the ordinance finds abundant authority in the charter of St. Louis, paragraph 5 of section 26 of article 3, wherein power was given to pass ordinances “to license, tax and regulate lawyers, doctors, doetresses . . . [Scheme and Charter of St. Louis, 2 R. S. 1879, p. 1586.] It is conceded that this power to license and tax doctors of medicine was nullified by an Act of the General Assembly of this State of March 6, 1879 (Laws 1879, p. 45), now known as section 5260, Revised Statutes 1899, but it is insisted that the power to regulate doctors was not affected by the said act of the Legislature, and under the grant of authority to regulate, it was competent for the municipal assembly to pass this ordinance. Moreover, it is insisted by counsel for the city that authority to enact this ordinance can be found in the “general welfare clause” of the charter, viz.: “to pass all such ordinances, not inconsistent with the provisions of this charter, or the laws of the State, as may be expedient, in maintaining the peace, good government, health and welfare of the city, its trade, commerce and manufactures and enforce the same by fines and penalties not exceeding $500’,” etc. [Par. 14, sec. 26, art. 3, Scheme and Charter of St. Louis, 1876.]

On the other hand, defendant maintains that the only power of attorney, so to speak, the city had to pass this ordinance, was this general welfare clause and that in the ascertainment of the powers of the city certain principles must be accepted, to-wit, that municipal corporations possess and can only exercise such, powers as are granted in express words or those necessarily incident to or implied by the powers expressly granted; they are creatures of the law, established for special or local purposes and their corporate acts must not only be authorized by their charters but their acts must be done by such officials or agents in such manner-as their charters direct. [Dillon on Municipal Corporations (4 Ed.), p. 145; City of Nevada v. Eddy, 123 Mo. 557.]

It is asserted by counsel for the city that it has the inherent police power to protect public morals, and that this advertisement flagrantly offends against public morals and decency. In the solution of this controversy it is well that we keep in view certain principles which must be regarded as settled in this jurisdiction.

In State ex rel. v. Telephone Company, 189 Mo. 83, it was said by this court In Banc, in the examination of the corporate powers of Kansas City under its special charter to regulate telephone tolls: “It is not every power that may be essayed to be conferred on the city by such a charter that is of the same force and effect as if it were conferred by an act of the General Assembly, because the Constitution -does not confer on the city the right, in framing its charter, to assume all the powers that the State may exercise within the city limits, but only powers incident to its municipality. Yet the Legislature may, if it sees fit, confer on the city powers not necessary or incident to the city government. There are governmental powers the exercise of which is essential to the happiness and well being of the people of a particular city, yet which are not of a character essentially appertaining to the city government. Such powers the State may reserve to be exr ercised by itself, or it may delegate them to the city, but until so delegated they are reserved.”

In Knapp v. Kansas City, 48 Mo. App. 485, the doctrine is tersely stated to be: “It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and none others: First, those granted in express words. Second, those necessarily or fairly implied in or incident to the powers expressly granted. Third, those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable. [Kansas City v. Swope, 79 Mo. 446; Leach v. Cargill, 60 Mo. 316; Kiley v. Oppenheimer, 55 Mo. 374.] And any fair reasonable doubt concerning the existence of the power is resolved by the courts against the corporation. [St. Louis v. Bell, 96 Mo. 623; Ex parte Mayor, 78 Ala. 419; Dillon, Mun. Corp., secs. 90 and 91.] But it is contended that in the [general welfare’ provision of the charter are to be found the police powers of the city; that this provision is a sort of general reservoir, wherein are pent up a vast store of illimitable and undefined police powers, and that from this source the disputed authority may be deduced. The logic of defendant’s contention is that this charter provision supplements the three classes of powers, which we have already mentioned, with- a fourth; that if the power to pass any ordinance that the city may deem expedient in maintaining the peace, order, good government, health and welfare of the city or its trade and manufactures cannot be found among any of the powers we have enumerated which a city may exercise, it may be drawn from this source. The police power has for its foundation the principles of the maxim, Sic utere tuo ut alienwn non laedas. The extent of this power of a city thus derived is subject to, and dependent upon, the limitations of its charter. The city is a creature of the State; and, before it can exercise a particular police power, it must fairly be included in the grant of powers by its charter. [Tiedeman’s Police Pow., sec. 212.] The exercise of any police power not within the limitations of its charter is a municipal usurpation and void. The general welfare clause of the charter of a city which follows a long list of specific powers like the one here, should not be construed so as to enlarge the powers of the city-further than is necessary to carry into effect the specific grants of power.” [15 Am. and Eng. Ency. Law, 1187.]

In St. Louis v. Packing Company, 141 Mo. 375, it was ruled that under the charter power to declare and abate nuisances it was not competent for the city to declare that a nuisance, which is not so in fact, either at common law or by statute. In a number of well-considered cases, it has been ruled that the city’s power was only over such acts as may affect the public peace, decency and good order and does not authorize punishment for private conduct however reprehensible it may be in the matter of morals. Thus in State v. Horne, 115 N. C. 739, an ordinance prohibiting the use of profane language in the town was held invalid, but, added the court, it would be otherwise if the ordinance prohibited the use of such language as amounted to boisterous or disorderly conduct, or to a disturbance of the peace. In State of Minn. v. Hammond, 40 Minn. 43, the Supreme Court held an ordinance void which imposed a penalty upon any person who committed an act of indecency within the limits of the city, saying, the city’s power was only over such acts “as may affect the public peace, decency and good order, and does not authorize punishment for private conduct however reprehensible it may be in the matter of morals.” To a like effect are the cases of Bregguglia v. Vineland, 53 N. J. L. 168; State v. Buell, 45 Ark. 336; Paralee v. Camden, 49 Ark. 165. In Walsh v. The City of Union, 13 Oregon 589, though the city was authorized to “prevent and restrain any riot, noise, disturbance or disorderly assemblage in any street, house or place in the city,” the court held that an ordinance which imposes a penalty on any person “who shall draw any dangerous or deadly weapon upon the person of another” was invalid.

Prom these cases we deduce this principle, that although an act sought to he prohibited by city ordinance is vicious and properly within the power of a State Legislature to consider, it is not a proper subject for municipal legislation, unless the charter grants the power to the municipality. In the consideration of the validity or non-validity of this section 1447 of the municipal code, we are not called upon to consider the question of medical ethics, nor yet a question of private individual morals, but a question as to power and the scope of the grant of power by the State to the city of St. Louis, and unless authority, can be found either in the express language of the charter or necessarily or fairly implied in the powers expressly granted or essential to the declared objects and purposes of the corporation, then the mere fact that it is aimed to prevent the practice of something that is immoral, or even which a State Legislature might punish, will not sustain the ordinance. The advertisement in question does not fall within the condemnation of sections 2176, 2177, and 2178, which have announced the legislative policy of this State with respect to objectionable advertisements and it is quite evident that the ordinance in this case goes further than this legislative enactment and does not fall within the express authority given by the charter and is not indispensably necessary to the powers therein expressly granted. In this connection section 6258, Revised Statutes 1899, adds much to the proper settlement of the validity of this ordinance. By that section it is provided: ‘ ‘ Any municipal corporation in this State, whether under general or special charter, and having authority to pass ordinances regulating subjects, matters and things upon which there is a general law of the State, unless otherwise prescribed or authorized by some special provision of its charter, shall confine and restrict its jurisdiction and the passage of its ordinances to and in conformity with the State law upon the same subject.” And it is provided in the Constitution, section 23, article 9, that the charter and amendments thereto of the city of St. Louis shall always be in harmony with and subject to the Constitution and laws of Missouri. Under sections 2176, 2177 and 2178, we have laws enacted for the promotion of the morals of the people by prohibiting obscene and licentious publications and those of indecent and scandalous character. And the State in these sections has defined its policy by a general law, but this ordinance upon this same subject has gone further and enlarged the statute.

Nor can it be said that this ordinance is of a peculiarly local or municipal character. The vice or practice at which it is aimed is not necessarily and naturally connected with a congested city population. The conduct sought to be prohibited is no more injurious because committed in a city than if committed in a country district. Whatever may be said as to the indelicacy of this publication, after careful consideration, we have been unable to find any warrant for the ordinance making it an offense, either in the charter or by any necessarily implied incident to those powers. Nor can we believe that it is necessary to carry into effect the specific grants of power in the charter. While, as was said in Carpenter v. The Reliance Realty Company, 103 Mo. App. 480, the police powers of a city ought to be construed with reasonable liberality, before an ordinance is enforced which will change 'the fundamental theory of the law so that the change shall be sensibly felt in the law’s practical effect-, its validity should appear from some statute delegating the power to it, not be implied merely because the result would be wholesome.

But applying the ordinance itself to the advertisement in this case, it is obvious that the advertisement does not contain any reference to many of the diseases denounced in the ordinance itself. As to “whether the advertisement is obscene, we think it should be measured by the established judicial precedents as to what constitutes obscenity. In United States v. Moore, 129 Fed. 159, Judge Philips, quoting, says: “The word ‘obscene’ when used, as in the statute, to describe the character of a book, pamphlet or paper means containing immodest and indecent matter, the reading whereof would have a tendency to deprave and corrupt the minds of those into whose hands the publication might fall, whose minds are open to such immoral influences.” In People v. Muller, 96 N. Y. 411, the Court of Appeals said: “The test of an obscene book was stated in Regina v. Hicklin, L. R. 3 Q. B. 369, to be whether the tendency of the matter charged as obscenity is to deprave or corrupt those whose minds are open to such immoral influences and who might come into contact with it.” It is clear that some of the diseases are not covered by the ordinance and while some of them may be included therein, the reference to them is couched in language in and of itself not offensive. It is significant that though we have a statute aimed directly at obscene publication, no attempt has been made to prosecute the newspaper publishing this advertisement, but the effort is made to prevent its repetition by invoking this ordinance against the physician who resorts to the advertisement. It is conceded by the city that however indelicate it is in a physician to advertise his business, it is a matter with which the common law and no statute in this State has ever undertaken to interfere. The contention is that the defendant has advertised in such a way as to shock the public morals and lower the moral tone of the community. However opposed to a proper code of ethics and indelicate as it may be for a physician to advertise, if we accept the test of obscenity laid down in Regina v. Hicklin and followed in numerous cases in this country, we are unable to come to the conclusion that this advertisement is an invitation to any person to participate in any immorality or to corrupt or deprave the minds of those into whose hands the publication might fall. The learned counsel for the city have cited us to numerous cases, the majority of which áre in the Federal decisions interpreting the laws in regard to obscene publications passing through the mails and as to the meaning of the statutes denouncing this character of pamphlets, books, etc., but counsel have not been able to put their hands upon any-decision of a court of last resort, nor have we been able to find one, in which a city ordinance of the character of the one under which this prosecution is waged has been upheld as a valid exercise of the general police power of a city. We think this ordinance cannot find support in the charter provision in regard to the regulation of doctors nor in the general welfare clause of the charter of St. Louis.

Applying the well-established doctrine in this State, we are constrained to the opinion that this ordinance must fail because the power to enact it is not conferred in the charter and is not necessarily incident to any power that is expressly granted in the charter, and that the ordinance itself is not in harmony with the statutory' law of this State on this subject, but has endeavored to enlarge the powers of the city further than is necessary to carry into effect the specific grants of power. There are other propositions presented with great clearness by counsel, but the conclusion we have reached disposes of the controlling points in the case, and hence it is not necessary to discuss others. For the reasons given we hold the ordinance invalid, and the judgment of the Court of Criminal Correction must therefore • be and is .reversed.

Burgess and Fox, JJ., concur.