author: WALKER, J. WILLIAMS, J.

text:
    EARL T. ROBINSON et al., Appellants, v. JAMES M. CRUTCHER, Executor, et al.
    In Banc,
    February 15, 1919.
    1. CHARITABLE TRUST: Separation of Legal Estate and Beneficial Enjoyment. In the creation of a charitable trust it is essential that there be a separation of the legal estate from the beneficial enjoyment and this separation must be indicated by the words of the donor; otherwise, the trust will he extinguished by a merger of the equitable in the legal estate, and the whole interest will vest in the donee.
    2. -: Appointment of Trustee: No Donee. If a charitable trust has been created it will not be permitted to fail because a trustee has been erroneously or uncertainly designated, but the court in the-exercise of its inherent equity jurisdiction will appoint one. But where the instrument creating the trust neither directly nor by reasonable implication designates a donee who can take the legal title to the fund by it bequeathed or donated, the court is not authorized to appoint a trustee, and the trust fails.
    3. —:-: Bequest to School Fund: No Donee. A bequest of one-third of the residuum of testator’s property “to the capital of the township school fund of Township 54, Range 10, in Monroe County,” one-third “to the capital of the public school fund of Monroe County” and one-third “to the capital of the public school fund of the State of Missouri,” with a direction to his “executor to pay over to the lawful custodians of the several public school funds mentioned the several shares given to said school funds,” wa,s a mere attempt to add money to money for the benefit of education, and is void for failure to name a donee who can take the legal title to tbe funds. It was a gift to tbe school funds, and not fo tbe custodians, and no donee can be implied or trustee appointed.

      Held, by WILLIAMS, J., dissenting, with whom BLAIR, J., concurs, that the legal estate was vested in the statutory custodians of the respective school funds, and the beneficial enjoyment was vested in the persons who by statutory law are now, or shall hereafter become, entitled to said funds, which statutes definitely and accurately define the custodians and prescribe the methods of administering “the several public school funds mentioned.”
    4. -Interpretation: Words’of Clear Meaning. If the words used to create -the trust are clear and unmistakable in meaning, there is no room for a construction by implication or for the interpolation of other words.
    5. -: Cy Pres Doctrine. In the absence of a named donee in the words attempting to create'a charitable trust, no trust is created, and there is no room for an application of the doctrine of cy pres, or approximation, to ascertain or supply one, because that cannot be approximated which does not exist.
    6. WILL: Valid in Part. The elimination of invalid clauses of a will does not interfere with its valid provisions.
    Appeal from Monroe Circuit Court. — Hon. W. T. Bag-land, Judge.
    Reversed and remaNded (with directions).

      Frank W. McAllister and Strop & Mayer for appellants.
    (1) A grantee under a deed or a legatee or devisee under a will must be capable of taking and bolding property. Neither inert matter nor a symbol representing inert matter, can be a grantee under a deed or legatee under a will. There is an entire want of capacity to accept or reject, to take or to hold. The public school fund and the township school fund are mere names. They designate simply moneys. These moneys themselves cannot be identified or ascertained except by tracing them to their different sources. The county school fund and the township school fund designate dead, inanimate 'Jnatter. They are neither a person or corporation nor an association or society composed of individuals with capacity to take. A court cannot make a trust out of such devise or bequest in favor of the testator’s heirs or anybody else. Spencer v. DeWitt Library, 73 N. Y. S. 714; Douthitt v. Stinson, 63 Mo. 268; Thomas v. Wyatt, 25 Mo. 24; Doedem. Hearn v. Cannon, 15 Am. Rep. 701; Stennett v. Hall, 74 Iowa, 279; Billingsley v. Tongue, 9 Md. 575; Tractly v. Martin, 80 N. C. 643; Scales v. Scales, 59 N. C. 163; Sloan v. House, 2 Rawle, 28; Barnet’s Appeal, 104 Pa. St. 342. (2) Where a testator has used clear and unambiguous language and has thereby made provision which is clearly invalid and void because contrary to a positive rule of law, a court of equity will not rewrite the will or do for him what he has not done for himself. Wells v. Fuchs, 226 Mo. 106; Hadley v. Forsee, 203 Mo. 428; Board of Trustees v. May, 201 Mo. 370; Douthitt v. Stinson, 63 Mo. 268; Tilden v. Creen, 14 L. R. A. 3; Cottman v. Grace, 112 N. Y. 299; Central Trust Co. v. Eggleston, 185 N. Y. 968; Jones v. Jones, 223 Mo. 450; Buckner v. Buckner, 255 Mo. 377; Burnett v. Burnett, 244 Mo. 497. (3) If a man wills his property to a thing which has no capacity to take, or in a manner made invalid and void by positive rules of law, this property will decend to his relatives. Hadley v. Forsee, 203 Mo. 428; Corby v. Corby, 85 Mo. 371; Corporation v. Wood, 3 Hare (Ch.) 147; Wells v. Fuchs, 226 Mo. 106. (4) Before a trust can be created, there must be a separation of the legal estate from the beneficial enjoyment, and a trust cannot exist where the same person possesses both. 5 R. C. L. 294-295, sec. 4; 1 Lewin on Trust, 14; Hill on Trusts (4 Am. Ed.) 86, 99; 1 Perry on Trusts, 11; Doan v. Vestry of the Parish of the Ascension, 103 Md. 662, 115 Am. St. Rep. 379; In this will there is not a word of any kind or character which can be tortured into showing any intent on the part of the testator to restrain or direct, in any manner whatsoever, the beneficial enjoyment of the bequest.

      Roy B. Meriwether, Alex. T. Stuart, James J. Browning and J. E. Whitecotton for respondents.
    (1) Gifts to charitable nses have always received favorable consideration and are often npbeld where private trusts fail. Hadley v. Forsee, 203 Mo. 427; Chambers v. St. Lonis, 29 Mo. 543; Academy v. Clemens, 50 Mo. 167; Schmidt v. Hess, 60 Mo. 591; Howe v. Wilson, 91 Mo. 45; Hist. Society v. Academy, 94 Mo. 459; Powell v. Hatch, 100 Mo. 592; Barldev v. Donnelly, 112 Mo. 561; Sappington v. Trustees, 123 Mo. 210; Lackland v. Walker, 151 Mo.-210; In re Graves, 242 Ill. 23; Mott v. Morris, 249 Mo. 137; 11 Corpus Juris, p. 307, sec. 12; In re Creighton Estate, 60 Neb. 796. (2) Even if the words of a gift are ambiguous or contradictory they are so construed as to support the charity if possible. It is an established maxim of interpretation that the court is bound to carry the gift into effect if it can .see a general charitable intention with the rules of law if the particular manner indicated by the donor is illegal or impracticable. Under this doctrine the provisions of the will are administered as near the intention of the testator as possible. Sappington v. School Fund Trustees, 123 Mo. 42; Lackland v. Walker, 151 Mo. 210; Mott v. Morrison, 249 Mo. 137; Heuser v. Harris, 42 Ill. 425; Brown v. Kelsey, 2 Cush. (Mass.) 243; Winslow v. Cummings, 3 Cush. (Mass.) 358; Washburn v. Sewall, 9 Mete. (Mass.) 280; Grand Prairie Seminary v. Morgan, 171 Ill. 444; Hoeffer v. Clogan, 171 Ill. 462; Hood v. Dorer, 107 Wis. 149. (3) Each county has the power of acting as trustee for charitable uses and as such trustee to take and hold by gift, grant or bequest or devise, money and other property, to be given, granted, bequeathed or devised, in trust for charitable uses, and shall have the power, by and through its county court, of executing trusts created in it for charitable uses in as full and ample a manner as an individual. Sec. 3746, R. S. 1909; Laws 1913, p. 194; Seqs. 3747, 8748, R. S. 1909. (4) It is not necessary to the valid appointment of a trustee of a charitable trust that he shall be specified by name or that the word trustee shall he used, provided it appears to the satisfaction of the court that the duties to be performed are such as are properly to be performed by one who is a trustee and that the individual is designated with sufficient precision to leave no doubt as to the identity. 11 Corpus Juris, 331; Eemmerer v. Kemmerer, 233 Ill. 327; Baltimore Annual Conference M. E. Church Book Depository v. M. E. Church Rooms Fund, 117 Md. 86. (5) The intention of the testator to create a trust is to be gathered in each case from the general purpose and scope of the will, and testator’s intention is not to be gathered from technical words, but from the whole instrument. Peak v. Jamison, 6 Mo. App. 590; Ryder v. Lyon, 85 Conn. 245; Thompson on Wills, 295, sec. 338; C. J. p. 313, sec. 18; Cook v. Universalist General Convention, 101 N. W. (Mich.) 217. If donor ■has indicated generally a charitable purpose and has fixed the means whereby a scheme of executing same may be ascertained to enable the court to enforce same, that is all that is required. Grant v. Sanders, 121 Iowa, 80; Jordan v. Richmond Home for Ladies, 106 Ya. 710; Harrington v. Pier, 105 Wis. 485; 11 C. J. p. 327, sec. 40. “A gift to a charitable use, to be valid, must designate the particular charitable use by making the gift to some corporation whose charter provides for a charitable use of its funds, or to some particular object or purpose that the law recognizes as charitable; and it is enough if the object to be mentioned, and the law can see that it is a charitable one.” 5 R. C. L. 349, sec. 84. (6) Testator orders said funds turned over to the lawful custodians of said funds. The county court by operation of law had the control and management of the various school funds and the county is made, by statutory provisions, the trustee of charitable uses for the county, with full power to execute said trusts. (7) Testator has indicated generally a charitable purpose, that of benefiting the public through the public schools; he has fixed the means of ascertaining the method of executing the same, that of the provisions of the statutes, which are plain, explicit and amply sufficient; the beneficiaries are sufficiently designated, the subject-matter is certain, the legal and equitable titles are separated, the context of the will clearly establishes a public charity. Cook v. Universalist General Convention, 101 N. W. (Mich.) 217; Schneider v. Kloepple, 270 Mo. 399. (8) Equity will not .permit these trusts to fail because its particular purposes are uncertain, or for the want of a trustee, though no existing donee is named in the trust. Chambers v. City of St. Louis, 29 Mo. 543; American Bible Society v. Wet-more, 17 Conn. 181; Vidal v. Philadelphia, 43 U. S. (How.) 127, 11 L. Ed. 205; Hunt v. Fowler, 121 Ill. 269. (9) Bequests much more indefinite than this have been upheld as follows: A bequest by testator “to the poor of Madison County;” and also a bequest “to the suffering poor of the town of Auburn.” In each of these bequests, there was no appointment of a trustee to administer the trust nor any direction as to how one should be appointed, but in each instance the bequest was held valid as a public charity and the court of chancery appointed trustees to execute the trust. Howard v. American Peace Society, 49 Mo. 288 A bequest “to the Sunday School of the Methodist Episcopal Church at Tuckerton” was maintained as a public charity and the church to which the Sunday School was an incident was appointed as a trustee in equity to carry out this bequest as a public charity. Mason v. Methodist Episcopal Church, 27 N. J. Eq. 47.
   WALKER, J.

The heirs of Temple B. Robinson, deceased, brought this suit to have the fifth, sixth and seventh clauses of his will construed. These provisions concern the disposition of two-thirds of the - testator’s property. The defendants are the executor of the estate, the judges of the county court, and the treasurer of Monroe County. The judgment of the circuit court was in favor of the validity of the will. Plaintiffs appealed from this finding.

Temple B. Robinson had never married. He died in Monroe Oonnty, in January, 1914. The petition alleges the invalidity of the provisions of . his will mentioned, because of the absence therein of a donee, legatee, or beneficiary,- that said clauses are void for uncertainty, and hence impossible of execution; and that as to two-thirds of the estate thus bequeathed, the donor died intestate, and that said property should pass and descend to his heirs at law who are the plaintiffs.

Omitting the first, second and third clauses of the will, about which there is no controversy, the fourth, fifth, sixth and seventh provisions are as follows:

“4th: The residue of my property of whatsoever hind and wheresoever situate I will and direct shall be divided into three equal parts.
‘ ‘ 5th: One of such third parts I give and bequeath ' •to the capital of the township school fund of T. 54, R. 10 in Monroe County, Missouri.
“6th: One of such third parts I give and bequeath to the capital of the public school fund of Monroe County.-
“7th:. One of such third parts I give and bequeath to the capital of the public school fund of the State of Missouri and I direct my executor to pay over to the lawful custodians of the several public school funds mentioned in this and the two preceding clauses of this will the several shares given to said school funds as aforesaid.”

.It is conceded that the language of these provisions creates direct bequests to the capital of the township school fund of Township 54, Range 10, Monroe County, the capital of the public school fund of Monroe County, and the capital of the public school fund of Missouri, and" would consequently be void, except, upon the theory which forms the basis of the trial court’s judgment, that these bequests create charitable trusts for the advancement of education; and that so construed, the provisions of the will in controversy, aided by the cy pres doctrine, may be upheld and, as a consequence, the powers of a court of equity exercised in "the designation of a trustee.

The issue, therefore, is briefly framed and clearly defined; namely, does the language employed by the donor, when liberally construed within the well defined meaning of the words employed, authorize the classification' of these bequests as charitable trusts ?

In the discussion of this question, we need not confine ourselves to the rules in regard to the creation of charities authorized in England, under the Statute of Elizabeth (43 Eliz. ch. 4), or a recondite review of the divergencies from same in this country, except to recognize the general doctrine announced in that statute as a part of our jurisprudence (Lackland v. Walker, 151 Mo. l. c. 242). In so doing, it will suffice to content ourselves with the modern definition of a public charity as “a gift to be applied consistently with existing laws, for the benefit of an indefinite number of persons, by bringing their minds under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, or by assisting them to establish themselves in life, or by erecting and maintaining public buildings or works, or otherwise lessening the burdens of government.” [Jackson v. Phillips, 14 Allen 539; State ex rel. v. Powers, 10 Mo. App. l. c. 265; 6 Cyc. 900 and notes.]

In the creation of a charitable trust, it is essential that there be a separation of the legal estate from the beneficial enjoyment of same (5 R. C. L. 295). This separation must be indicated by the words of. the donor, otherwise the equitable and legal estate will meet in the same person and the trust be extinguished by a merger of the equitable in the legal estate. The rule thus plainly put finds affirmative expression in Doan v. Vestry of Ascension, 103 Md. 662, 115 Am. St. 379, where it is held in effect that there must be a disclosed intention on the part of the donor to separate the legal and equitable estates, otherwise the whole interest will vest in the donee, which, in the absence of the exercise of sovereign power, will preclude the creation of a trust, charitable or otherwise. If such a trust has been created, it will not he permitted to fail because a trustee has been erroneously or uncertainly designated, hut the court in the exercise of its inherent equity jurisdiction will appoint one. [Buckley v. Monck, 187 S. W. 31; Rothenberger v. Garrett, 224 Mo. 191; 6 Cyc. p. 936, Subd. 5 and notes; 11 C. J. p. 332, par. 48 and notes; 39 Cyc. p. 252, Subd. B. and notes.]

The testator’s will defines the capital of the township, the county and the state school funds as the donees. The word capital as used to designate the recipients of these bequests has no significance other than that generally given to it as applied to public or private funds. As applied to the school fund, it means the principal set apart from the general' revenue from which the interest is derived for educational purposes. Neither directly nor by reasonable implication is a donee designated who can take the legal title to the funds bequeathed and thus authorize the appointment of a trustee. The utmost that can be said of these provisions under a liberal interpretation of same, is that it was the purpose of the donor to add money to money.for the benefit of education. The language employed in the will being free from doubt, no room is left for a construction by implication which would insert the names of those clothed by the statute with the general custody of school funds, under the rule that where a trust is expressed the party in whom the legal title is vested will be held to be the trustee, for the reason that there is no such vesting of title of the funds bequeathed in any natural or artificial entity, as is required to create the trust. Hence, it would become necessary, to sustain the same, to write into the will, otherwise clear and unambiguous, the names of the donees who would take the legal title to the funds bequeathed. This, in effect, would result in a making instead of a construing of the will, and even under the ample power given a court of equity to sustain a trust, such a course, in' the presence of the unmistakable language employed, would be unauthorized. [Sec. 583, R. S. 1909; Trigg v. Trigg, 192 S. W. 1011; Peak v. Peak, 195 S. W. 993; Deacon v. St. L. U. T. Co., 271 Mo. 669, 197 S. W. 261.]

But it is contended that the language employed by tbe testator in tbe 7th clause directing his executor to pay over to the lawful custodians of the public school funds mentioned in the 5th, 6th, and 7th clauses of the will the several shares therein given to said funds, constitutes a' sufficient designation of the donees to characterize the bequests as charitable trusts. This direction, unless we disregard its plain terms, in which is involved a necessary reference to the express provisions of the clauses in controversy, does not sustain this contention.

In conformity with these clauses the direction provides for the turning over of the shares to the custodian named, not those which had been given to them, because none had been given, either in terms or by implication, but those which had been given to the school funds aforesaid. The effect of this provision is to emphasize the designation of the donees as expressed in the clauses themselves, and that it was the purpose of the donor to bequeath these shares of his estate to the school funds themselves and not to the legal custodians of funds of like character. In short, the part of the will under review -provides for a bequest to and not for the funds in question.

As to the power of a county court, within the statute, to act as trustee under a proper state of facts, tiiere is, no question, but such facts do not exist here. [Sec. 3746, R. S. 1909.]

The attempted application of the provisions of Section 3747 to the construction of this will, so far as concerns the bequest to the county school fund, is not authorized, because of the absence of the creation of such a charitable trust by the donor as will permit, within the contemplation of said section, the nam.es of the judges of the county court to be inserted as custodians of the shares bequeathed to the county school fund.

To uphold the provisions of the will in controversy, under the contention of the respondents, it will be necessary, therefore, either to interpolate words or construe those employed, concerning the meaning of which there is no question. It is almost too elementary to require' references to cases, to sustain same, that the interpolation of words or the construction of same by implication is only authorized where there is enough expressed to indicate but not clearly define the purpose of the text. Such is not the case at bar, and unless the rule thus invoked is applied to the construction of words whose meaning can not be mistaken, it can have no application here.

The doctrine of cy pres, or that of approximation, is invoked to sustain the validity of these bequests. We have, in discussing other phases of the matter at issue, adverted to the uniformly liberal construction given to testamentary donations, due to the policy of courts of equity to declare valid, if possible, gifts to charity. It is in the exercise of this general power that the doctrine of cy pres is authorized that the intent of the donor, if found impossible of execution, may, under the order of the court, be carried out as near as possible. [Mott v. Morris, 249 Mo. l. c. 145.] An essential to the application of this doctrine is the ascertainment from the language employed in the donation, as to who was intended to take as trustee. If the taker, although in the instant case in a sense tangible so far as mere money can be so considered, has within the meaning of the law no legal entity, either natural or artificial, then the doctrine of cy pres cannot properly be invoked,, because that cannot be approximated which does not exist; or put differently, with the same effect as to the conclusion reached, in the absence of such a taker as the law authorizes, no trust is created, and absent the creation of a trust, there is no room for the application of the doctrine of cy pres. [Catron v. Scarritt Coll. Ins., 264 Mo. l. c. 728; Mott v. Morris, 249 Mo. l. c. 145; Crow ex rel. Jones v. Clay Co., 196 Mo. 234; Lackland v. Walker, 151 Mo. 210; Women's Chris. Assn. v. Campbell, 147 Mo. 103; Campbell v. Kansas City, 102 Mo. 326; Mo. Hist. Soc. v. Acad. of Science, 94 Mo. 459; Schmidt v. Hess, 60 Mo. 591; Acad. Vistn. v. Clemens, 50 Mo. 167.]

The question here involved is not, as contended by respondent, the failure to name a trustee, as in Schneider v. Kloepple, 270 Mo. 396, or to render more certain the individual who may be reached by the benefit, as in Mott v. Morris, 249 Mo. l. c. 150, Hadley v. Forsee, 203 Mo. l. c. 427, and Barkley v. Donnelly, 112 Mo. l. c. 571. Nor does it concern- the administration of a trust admittedly created, as in Lackland v. Walker, 151 Mo. 210, or render more definite the designation of the cestiá que trust, as in Sappington v. School Fund Trustees, 123 Mo. 32. These authorities, and others of like- nature, are cited to sustain the validity of the clauses in question. It is evident that the matters of which they are determinative fall short of this purpose. The question here confronting us has a deeper significance, in that the will does not, either by express terms or by implication, create such a trust a$ is necessary to sustain the provisions in question. The trust not having been created, no reason exists for the attempted exercise of the power of the trial court to designate a trustee.

It, therefore, follows that the clauses of the will under review must be held inoperative and of no effect. The elimination of these invalid clauses does not interfere with the disposition of the remaining portions of the testator’s estate under the other well defined provisions of his will, and it is upheld as to them. [Wells v. Fuchs, 226 Mo. 97; Shepperd v. Fisher, 206 Mo. 208; Board of Trustees v. May, 201 Mo. 360; Borland on Wills, p. 302.]

As a consequence of this conclusion, the finding of the trial court is reversed and remanded, with directions that a judgment be entered in conformity with the views herein expressed. It is so ordered.

Bond, C. J., Baris, and Graves, JJ., concur; Williams J., dissents in separate opinion, in which Blair, J., concurs; Woodson, J., not sitting.

WILLIAMS, J.

(dissenting). — Being unable to agree with the learned majority opinion, I desire to state briefly the ground of my dissent.

In my opinion, by the terms of the will, there has been a clear separation of the legal estate from the beneficial enjoyment or equitable estate. By the terms of the will the legal estate in the property devised or bequeathed in paragraphs 5th and 6th (the present suit does not involve the bequest in paragraph 7) becomes immediately vested in the statutory custodian of the respective school funds, and the equitable title or beneficial enjoyment thereof is vested in the persons who by statutory law become now, or are hereafter entitled, to receive the benefits from the respective school funds.

The terms upon, which the trust, thus established, is to be administered, are to be found in the statutory law of the State which definitely and accurately prescribes the manner of applying and the uses to which such funds may be put. Under such conditions the statutes prescribing the method of administering and the uses to which such school funds are to be put are as much a part of the will as if they had been literally copied into the same.

The trust thus created was clearly a charitable one and I am of the opinion that the learned circuit court was correct in so decreeing and that the judgment should be affirmed.

Blair, J., concurs in these views.


source: Caselaw Access Project

author: FARIS, J. BOND, C. J.

license: Public Domain

text:
    THE STATE ex rel. BANKERS LIFE COMPANY OF DES MOINES, IOWA, v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    In Banc,
    February 15, 1919.
    1. LIFE INSURANCE: Proof of Non-Payment of Premium: Burden. In an action on a life insurance policy against an assessment company where the answer admits the issuance of the policy, that plaintiff was the designated beneficiary and the death of the insured, and avers that demand for payment had been made and payment refused, it is only necessary for plaintiff, in order, to make out a prima-facie case, to introduce the policy in evidence, and thereafter the burden of showing the assessments were unpaid at the death of the insured rests upon the defendant company. The rule as to the 'burden of proof in an action on a contract of life insurance, as to the matter of payment of premiums, is an exception to the general rule.
    2. PLEADING: Amendment: Discretion: Changing Defense. Amendments of pleadings are largely, but not entirely, within the discretion of-the trial court, and under the statute it is not an abuse of the discretion to refuse to permit an amendment which substantially changes the defense. So that in an action on a life insurance policy, it was not an abuse of discretion to refuse to permit defendant, after all the evidence was in, to amend its answer by setting up the Statute of Limitations as a defense.
    3. LIFE INSURANCE: Payment of Premiums: Admission: Statement by Defendant’s Agent. Neither the plaintiff nor a witness produced by her in her suit on an insurance policy can testify that the cashier of the bank authorized to receive payments of assessments from members who held certificates of insurance in defendant company had stated to them, after the death of the insured, that all assessments on the certificate sued on had been paid. Said subsequent verbal statements are not competent as res gestae or on the theory that said bank was the defendant’s agent, and a holding by the Court of Appeals that such testimony was competent was in' conflict with the ruling of the Supreme Court in Redmon v. Railroad, 185 Mo. 1. c. 11, and many other cases.

      Held, by BOND, C. J., dissenting, with whom WALKER, X, concurs, that the depository bank in this case was, to all intents and purposes, the insurance company itself, in so far as concerns the payment of premiums by certificate-holders, and its cashier’s statements related strictly to the performance of duties entrusted to the bank,, and his admissions and declarations had the same evidentiary force as if they had been made by the defendant itself, and therefore were admissible, and a ruling that they were admissible was not in conflict with any previous ruling of the Supreme Court.
    4. -: Acquiescence in Suspension: Must Be Pleaded: Abandonment. Acquiescence in a suspension of a certificate-holder for nonpayment of an assessment is such consent by him, to be deduced from implied silence, or absence of objection, as will induce the. company to believe he had accepted the view held by it touching his default, and would therefore excuse its. subsequent failure to advise him of subsequent assessments. Acquiescence destroys no right. If the facts continue the right in existence, acquiescence does not affect it. Abandonment is entirely different; -it may cause the loss of an existing right; it is an aflumative defense, and if not pleaded is waived. There is no conflict in the ruling of the Court of Appeals on these points and the previous decisions of the Supreme Court in Johnson v. Ins. Co., 271 Mo. 1. c. 577.
    Certiorari.
    RECORD quashed.

      I. M. Earle and S. C. Rogers for relator.
    (1) The opinion of the Court of Appeals. conflicts with the controlling decisions of the Supreme Court, when it holds that, under the evidence in this case, the demurrer was properly refused. Swinhart v. St. Louis & Suburban Ry. Co., 207 Mo. 434; Fulwider v. Gas, Light & Power Co., 216 Mo. 594; Cummings v. Dent, 189 S. W. 1162. (2) The said opinion in affirming the action of the trial court in refusing leave to relator to amend its answer by pleading specifically the limitation provision as shown, in the policy, conflicts with the controlling decisions of the Supreme Court. Southern R. E. & Financial Co. v. Bankers Surety Co., 184 S. W. 1030; Sec. 1833, R. S. 1909; Sessinghaus Milling Co. v. Iianebrink, 247 Mo. 219; Feary v. Metrop. St. Railway,'162 Mo. 75; Rodney v. Ry. Co., 127 Mo. 676; Madden v. Mo. Pac. Ry. Co., 192 S. W. 455. (3) The said opinion in holding that it was proper to admit the hearsay admissions of Leonhard, cashier of the Farmer’s Bank at Trenton, conflicts with the controlling decisions of the Supreme Court. Atkinson v. School of Osteopathy, 240 Mo. 355; McDermott v. By. Co., 73 Mo. 516; State ex rel. Wabash By. Co. v. Ellison, 204 S. W. 397; Redmon y. Metrop. Street-Railway, 185 Mo. 1. (4) The said opinion in affirming the refusal of the' trial court to submit to the jury the question of acquiescence in this case conflicts with the controlling decisions of the Supreme Court. Johnson v. Ins. Co., 197 S. W. 132; Ashbrook v. Phoenix Mutual, 94 Mo. 78.

      Alfred Kehde and James J. O’Doncthue for respondents.
    (1) Point three of relator’s brief reads: “The opinion of the Court of Appeals in holding that it was proper to admit the hearsay admissions of Leonhard, cashier of the Farmer’s Bank at Trenton, conflicts with the controlling decisions of the Supreme Court.” The opinion of the Court of Appeals does not conflict with the decisions of this court. The first on the list is Atkinson v. School/ of Osteopathy, 240 Mo. 338. The admissions in that case were those of Dr. Laughlin to the effect that he had stated that the plaintiff’s second, third and fourth ribs were broken, caused from Dr. Still’s treatments, and did not relate to any admission concerning the acts of Dr. Laughlin himself. In the case of McDermott v. Railway, 73 Mo. 516, the admission was in reference to what defendant’s roadmaster said concerning the section foreman’s incompetency. It was not the admission of the foreman himself. The case of State ex rel. v. Ellison, 204 S. W. 397, scarcely deals with the question here involved. The admission in Redmon v. Railroad, 185 Mo. 1, was an alleged statement of the conductor to the plaintiff after plaintiff had been hurt in explanation of the cause of the sudden stop of the train. (2) The evidence which the Court of Appeals in its opinion holds competent and which the defendant contends is incompetent, reads: “He said that all but the October premium was paid, and for that reason I couldn’t get it. I considered him as a friend.” There was no exception taken or saved to the action of the trial court in admitting that evidence. So that neither the trial court nor the St. Louis Court of Appeals should, we think, he convicted of error, since an exception was necessary even to a review of the question. This, of itself, establishes that the opinion of the St. Louis Court of Appeals is not out of accord with the' decisions of this court cited by relator. (3) And, in any event, what Leonhard said was competent. The nature and character of his business for relator was that of collector. And he was the only one who could of his own knowledge make any statement as to ■the fact of payment or non-payment. To the people of Trenton, Leohard was justly regarded as the representative of the company with complete power touching the performance of the duties which he constantly exercised in their presence. In this view, the admissions of Leonhard were made concerning acts which he had power to perform and were entirely within the scope of his agency and in fulfillment of his office. Hence, his acts were those of the company. (4) Besides, Leonhard’s admissions were harmless, since plaintiff had already proven payment of the April, 1913, intallment. Moreover, plaintiff was entitled to a peremptory instruction.
   FARIS, J.

This is an original proceeding in certiorari, whereby it is sought to quash the judgment of the St. Louis Court of Appeals, in a cause lately pending in that court, wherein Emma A. Rasch was respondent and the relator herein was appellant. This case will be referred to hereinafter, for brevity, as the Rasch case. Upon a hearing had in the Court of Appeals, the Rasch case was in all things affirmed. After an unsuccessful motion for a rehearing, the relator, who was the appellant therein, sued out its writ of certiorari.

The facts in the Rasch case, in so far as they are disclosed by the opinion of the Court of Appeals and in so far as those facts are involved here, run briefly thus: One August F. Rasch, the husband of said Emma A. Rasch, and a citizen at all times of Illinois, became on the 27th day of October, 1911, a- member of relator company, which is an assessment life insurance corporation organized under the laws of Iowa. On the latter date there was issued to Rasch, the assured, a certificate of membórship for the sum of two thousand dollars, in which certificate said Emma A. Rasch, as wife of assured, was the beneficiary. The premiums, or assessments as they were called in the scheme of insurance here discussed, were payable quarterly, with one month’s grace. When the assessment of April 1, 1913, fell due, a letter, or notice was sent by the relator to the assured advising him of the fact, and of the amount of such assessment. This . notice contained among other things 'this statement: “This sum is due April 1, 1913 and payable only to this Company at its Plome Office, or to a Despository Bank. One month’s grace is allowed so that payment may be made on or before May 1, 1913. If not made by that date your membership and insurance will thereby cease without action by the Company.” This notice also further advised the assured that the assessment then due could be paid at a “depository bank,” in which latter event the notice should be stamped “paid” by the banker to whom payment was made and would then constitute a receipt, or voucher, for the payment.

Assured, theretofore residing at Trenton, Illinois, removed thence to East St. Louis in March, 1913, prior to the making of the April, 1913, assessment, and thereafter on October 18, 1913, died. The certificate of membership provided that any failure to pay an assessment when due, or after the expiration of the month of grace, should forfeit the membership of the defaulting member, and the certificate of membership should thereupon, ipso facto, lapse absolutely.

Upon the trial the sole issue was whether the assessment due April 1, 1913, and payable not later than on, or before, May 1, 1913’, had been in fact paid. Since assured died in October, 1913, prior to tbe expiration of tbe month of grace allowed witbin wbicb to make payment, tbe October, 1913, assessment never became payable by bim, and as to it therefore be never became in default.

All of tbe evidence wbicb came in tended either to prove or disprove payment of tbe April, 1913, assessment, and matters apposite thereto. It was shown that tbe Farmer’s Bank of Trenton, Illinois, was a “depository bank” witbin .the meaning of tbe notice above quoted, and that one Leonhard was tbe cashier thereof when tbe April assessment became payable.

Upon a trial by a jury, verdict went for plaintiff for tbe full amount of tbe certificate with interest. Whereupon relator appealed to the St. Louis Court of Appeals, and being cast upon its appeal, brought this proceeding to review tbe judgment of that court.

Other facts sufficient to make clear and .to eke out this brief, thumb-nail sketch will be found in our opinion. Should these prove insufficient to an understanding of tbe facts of tbe Rasch case and of tbe questions we find it necessary to discuss, tbe curious may read these facts at large in tbe reported case. [Rasch v. Bankers’ Life Co., 201 S. W. 919.]

I. The first point of alleged conflict urged upon us by relator is that tbe bolding by tbe learned Court of Appeals that the demurrer to the evidence offered nisi was properly overruled, contravenes tbe rule announced in the case of Swinhart v. Railway, 207 Mo. l. c. 434; Fulwider v. Gas, L. & P. Co., 216 Mo. l. c. 594, and tbe case of Cummings v. Dent, 189 S. W. l. c. 1162. Specifically the point urged, is that tbe demurrer ought to have been sustained nisi, because tbe plaintiff did not prove tbe payment of all premiums or assessments falling due up to"the date, of tbe assured’s death.

Upon this point the Court of Appeals (201 S. W. l. c. 923), said:

“The defendant’s answer, however, having admitted the issuance of the certificate or policy of insurance upon the life of August F. Rasch, and that the plaintiff was the designated beneficiary in said policy, and further admitting the death of the insured, and that demand had been made upon it for payment, and admitting that payment had been refused, it was necessary for the plaintiff merely to introduce the policy of insurance in evidence, which it did in the instant case, and she thereby made a prima-facie case. The burden of showing whether any installments were unpaid at the death of the insured under this state of facts rested upon the defendant. [Bange v. Supreme Council Legion of Honor, 179 Mo. App. 21, 161 S. W. 652; Gooden v. Modern Woodmen of America, 194 Mo. App. 666, 189 S. W. 394; Harris v. Security Life Ins. Co., 248 Mo. 304, l. c. 318, 154 S. W. 68.] ”

The case of Harris v. Security Life Ins. Co., 248 Mo. l. c. 318, cited by the learned Court of Appeals, if not the very latest pronouncement by us upon this question, is at least entirely apposite upon the identical point of alleged conflict; nor can we find that we have ever receded from it. In the Harris case at the page cited this court said this:

“Appellant insists that it was incumbent on the insured to make proof of the full payment of all premiums on the policy at the time of the death of the insured. Whether the premiums had been received or not was a matter peculiarly within the knowledge of appellant. It, however, neither pleaded nor proved nonpayment; although, if that were the fact, the policy would have been relieved of the preclusion of the clause making it incontestable after one year, and it would have been open to any legitimate, defenses, such as false warranties or fraudulent representations. The record contains no positive proof of the payment of the second premium. The payment of the first premium is admitted.
“Under these circumstances, the production of the policy, together with proof and due notice of the death of the insured, made a prima-facie case for respondent, and cast npon the defendant the harden of showing whether any premium was unpaid at the death of the insured. [25 Cyc. 925, 927; Provident Sav. Life Assur. Society v. Cannon, 201 Ill. 250; Ins. Co. v. March, 118 Ill. App. 261; Crenshaw v. Ins. Co., 71 Mo. App. l. c. 52.]”

It is patent from a reading of the cases urged by relator as being in conflict with what the Court of Appeals said upon the above point, that these cases hut announce the general rule to which the rule in an action upon a contract of life insurance is an exception. Indeed, this exception is noted in the case of' Swinhart, v. Railroad, supra. It follows that this averment of conflict must he disallowed.

II. During the trial, and as we gather from the opinion of the learned Court of Appeals, after all of the evidence was in, the defendant asked leave to amend its answer setting up for the first time the new defense of the Statute of Limitations. This proposed amendment the trial court refused to permit. The Court of Appeals ruled that this refusal was not error. Relator insists that the right to make the sort of amendment requested at the stage of the trial stated has been decided in the affirmative by us.

Amendments are largely, hut not entirely, within the discretion of the trial court. [Joyce v. Growney, 154 Mo. 253.] This discretion will not be interfered with unless it is obvious that there has been an abuse thereof by the Court nisi. [Carr v. Moss, 87 Mo. 447.] Both by statute (Sec. 1848, R. S. 1909) and by the construction put on that statute by this court, amendments of the pleadings are to be liberally allowed, but only upon condition that such amendments shall result in no substantial change in the defense made necessary or of the cause of action. [Carter v. Dilley, 167 Mo. 564; Southern etc. Co. v. Surety Co., 184 S. W. 1030; Joyce v. Growney, 154 Mo. 253.]

Defendant based its right to amend upon the ground that it did not discover the facts upon which the proffered defense of the Statute of Limitations was bottomed till about the time the request to amend was made.

The learned Court of Appeals held in effect, however, that upon the facts in the case the defendant was not diligent in ascertaining the particular fact upon which it bottomed its proffered amendment; that inasmuch as a plea of the Statute of Limitations is waivable it could raise such plea in defense, or not as it chose, but that such defense was here an affirmative one and must be pleaded. Under these facts the Court of Appeals held that the trial court ought not to be convicted of error in exercising its discretion.. That a discretion, we repeat, exists in the trial court under the provisions of Section 1848, supra, and that an exercise of this discretion by a refusal to permit amendment will not be held error in a case wherein the amendment substantially changes the defense, is well-settled. The cases urged by relator as being in conflict with what was ruled by the Court- of Appeals, so far as they are at all apposite, hold this, and no moré. The amendment requested was of such character as ordinarily to constitute a substantial change in the defense. We conclude that the view taken by the Court of Appeals was correct.

III. Upon the trial below both the plaintiff in the Rasch case and a witness produced by the plaintiff were permitted to testify as to the verbal statements made to them by one Leonhard who was thé cashier of the Farmers’ Bank of Trenton, Illinois, whereat as a “depository bank” relator allowed payments of premiums or assessments to be made by its certificate-holders. These statements- were made some time subsequent to the death of the assured, and at a time when the plaintiff in the Rasch case was investigating the situation with a view to bringing this suit upon the certificate. The Court of Appeals, discussing the assignment of error bottomed upon the admission of the statements of Leonhard, said:

‘‘We find no error in the action of the court in permitting plaintiff in rebuttal to testify that Leon-hard, cashier for the Farmer’s Bank at Trenton, Illinois, had stated to plaintiff a few days after the death of the insured, that all assessments on the certificate in question had been paid with the exception of the October, 1913, assessment. This testimony was clearly competent in view of the fact that it was admitted by defendant that the said Farmers’ Bank was a regular depository hank' duly authorized to receive payments of assessments from the several members of the defendant association who held certificates of insurance therein, and, further the witness had already testified to the fact that prior assessments on the certificate in question had been paid to said Leonhard at that bank.”

Relator strenuously contends that this ruling is in conflict with the eases of Atkinson v. School, 240 Mo. l. c. 355, and McDermott v. Railroad, 73 Mo. l. c. 519, and other cases decided by us. We think this contention must be sustained. We have had occasion to state this rule repeatedly. [Redmon v. Railroad, 185 Mo. l. c. 11; Ruschenberg v. Railroad, 161 Mo. l. c. 80; Barker v. Railroad, 126 Mo. 143, and other cases.] In a case wherein, as here, the doctrine of admissibility was strongly contended for, on the ground that the conductor who made the statements was the general agent of the defendant (Redmon v. Railroad, supra), Grantt, J., rejecting this theory and writing the rule long before that case and ever since followed by us, said:

“It is, however, urged that manifest error was committed in admitting, over defendant’s objection and exception, the statement of the conductor to the plaintiff after plaintiff had been hurt in explanation of the cause of the sudden stop of the train.
“Plaintiff urges it was admissible on two grounds-: first, because made by the conductor, the agent of the defendant in charge of the train, to an injured passenger who had the right to make the inquiry; second, because it was a part of the res gestae. Considering the second proposition first, it may be said that the courts do not differ materially as to what the doctrine of res .gestae is, but they are hopelessly variant in its application.
“The res gestae may be defined as those circumstances which are the automatic and undisguised incidents of a particular litigated act and which are admissible when illustrative’ of such act, indeed must be in contempla,tion of law a part of the act itself. Narratives unconnected with the .principal facts are universally rejected. Applying this general rule, a statement by a motorman after a child had been run over by his car and while the car was still standing in the street was rejected in Ruschenberg v. Railroad, 161 Mo. l. c. 79, 80, following Barker v. Railroad, 126 Mo. 143, and Adams v. Railroad, 74 Mo. 553.
“If those cases are to be followed, and we think they should be, the admission of the statement of the conductor can not be sustained as a part of the res gestae. On its face it is a narrative of what had happened and the cause thereof and elicited by a question as to the cause of the trouble.
“Was it admissible on the ground that the conductor was the agent and representative of the company and made the statement by authority and to a passenger who had the right to demand the cause of his injury?
“This must be solved by the application of the law of principal and agent. The admission or declaration of his agent binds the principal only when it is made daring the continuance of the agency in regard to the transaction then depending. This must be regarded as settled law in this State. [Rogers v. McCune, 19 Mo. 557; McDermott v. Railroad, 73 Mo. 516; Adams v. Railroad, 74 Mo. l. c. 555-6; Aldridge v. Furnace Co., 78 Mo. l. c. 563; Devlin v. Railroad, 87 Mo. 545; Barker v. Railroad, 126 Mo. l. c. 148.]”

On the authority of the cases called to our attention hy relator, as well as many others ruled by us, we think that the recital by plaintiff and her witness in the Rasch case, of what Leonhard, the cashier, said about the payments made to the bank of which he was cashier, was under the circumstances erroneous and that what is said by the learned Court of Appeals touching the admissibility of these statements is in conflict with our last previous ruling upon the point.

IV. Lastly it is contended that the following clause in the opinion of the Court of Appeals, to-wit:

“And the facts in this ease fail to prove acquiescence even when viewed in the light of the rule that w^eiiever there is a void expulsion or suspension the expelled or suspended member is under a duty to affirm or disaffirm the act of expulsion or suspension within a reasonable time. Furthermore, abandonment is an affirmative defense and no such defense is set up in the answer. Defendant thereby waived same by not pleading, it. [Keeton v. National Union, 182 S. W. (Mo. App.) 798.]” is in conflict with this language in the case of Johnson v. Ins. Co., 271 Mo. l. c. 577, to-wit:
“It is further contended by appellant that the judgment must be reversed because there was an abandonment by the assured of the policy contract.
“In approaching a consideration of this point it must be borne in mind that the sole function of this court, in this, a case at law, is to pass upon matters of error properly raised in the trial court and passed upon by that court.
“We are unable to see wherein this point was presented or passed upon below. It appears that an abandonment' was not even pleaded by appellant. ‘Abandonment of a contract of insurance is an affirmative defense which is waived if not pleaded.’ [Bacon on Life and Accident Insurance (4 Ed.), sec. 364, p. 760.] . . . Abandonment presupposes an existing valid right which is to be abandoned. Acquiescence in a forfeiture (a cancellation of a right) is quite a different thing from abandoning an existing right. In the former the loss of the right, if any,, occurs by reason of the forfeiture, while in the latter the loss of the right occurs by voluntarily and intentionally surrendering an existing right. An abandonment might give cause for forfeiture, but a forfeiture can supply no basis for an abandonment, because when once forfeited the right does not remain to be abandoned.”

We are wholly unable to see the pertinency of this contention. If we understand what is meant by acquiescence in a suspension of a certificate-holder for non-payment of an assessment due, it is such consent of the assured, to be deduced or implied from silence, or absence of objection, as would induce the company or society to believe that the certificate-holder had accepted the view held by the society touching the effect of his default, and which would therefore excuse the subsequent failure of the society to advise the assured of the levy of subsequent assessments. Acquiescence destroys no right. If. the facts continue the right in existence, acquiescence does not affect it; while abandonment may cause the loss of an existing right. Moreover, we are unable to see any field for the application 'of the so-called doctrine of acquiescence to the facts and issues in the Rasch case. We are utterly unable to see any substantial conflict between what the Court of Appeals said upon this point and what we said in the Johnson case.

For failure to follow the last previous ruling of this court upon the point of the admissibility of the statements of an agent made under the circumstances detailed, the record of the St. Louis Court of Appeals will be quashed and the cause remanded to that court for such further proceedings as are not inconsistent with what we have herein ruled. Let this be done.

Blair, Williams, Woodson and Graves, JJ., concur; Bond, G. J., dissents in separate opinion, in which Walker, J., concurs.

BOND, C. J.

(dissenting). — I am constrained to dissent from Paragraph III and the result' of the opinion of my learned brother Paeis. The other paragraphs of the opinion are demonstratively clear and correct.- I am, however, unable to concur in his views of the application of the law relating to the effect of admissions or declarations by the agent as against his principal on the facts shown by this record. These, as I gather them, are that the defendant insurance company is a non-resident of the State of Illinois and the bank, represented by its cashier, was, to all intents and purposed, the insurance company itself in so far as concerned its dealings with policy-holders and the payment of premiums by them in that State; and to this end that such bank, and its cashier, were clothed by the insurance company with plenary power to collect and receive any and all premiums payable to it by its policy-holders. As I understand the facts, plaintiff applied to said cashier of said bank for -the purpose of learning what payments of premiums were still due on the policy in suit. I think his admissions in that respect were strictly within the scope of his continuing agency to collect and receive the premiums due his principal; for he could not perform that duty.without stating what premiums were still due after extending former payments. His testimony, therefore, related strictly to the performance of the duties entrusted to the bank as the general agent and alter ego of the nonresident insurance company; indeed, as its sole representative in the State of Illinois. [Laundry Co. v. Ins. Co., 151 Mo. 90; Nickell v. Ins. Co., 144 Mo. 420; Blass v. Ins. Co., 202 S. W. l. c. 271; Brink v. Ins. Co., 49 Vt. 442; Hall v. Ins. Co., 23 Wash. 610.] In these circumstances I think his admissions and declarations had the same evidentiary force as if they had been made by bis principal and, therefore, that there was no error in admitting them in evidence and hence there was no conflict between the ruling of the St. Louis Court of Appeals on that point and the previous rulings of this court cited in the application made by relator.

Walker, J., joins in this opinion.


author: BOND, C. J.

text:
    THE STATE ex inf. T. B. McGINNIS, Prosecuting Attorney, ex rel. D. R. KEMBLE et al., v. CONSOLIDATED SCHOOL DISTRICT NO. 3 OF PIKE COUNTY et al., Appellants.
    In Banc,
    February 15, 1919.
    1. JUDGMENT: Consolidated School District: Dissolution: Restoration of Former Districts. Where the basic allegation of relator’s suit to oust directors of a consolidated school district is that the district was legally established, a judgment which undertakes to reestablish the previous defunct districts and restore their officers and functions is outside the pleadings and exceeds the power of the court.
    2. -: -: -: Unorganized Territory. Upon a valid dissolution of a consolidated school district the territory out of which it was formed becomes “unorganized territory” under the statute,- and can thereafter be organized into school districts only by the method prescribed by statute, which includes, among other things, a vote of its inhabitants.
    3. QUO WARRANTO: Ousting Officers: Information. An information in the nature of a quo warranto for the sole purpose of ousting school directors may be exhibited by the prosecuting attorney upon the relation of private persons; and that being one of the purposes of this suit, it is not decided, whether or not it was indispensable, for the further purpose of disincorporating the school district of.which they were directors, that the information in the nature of a quo warranto should have been filed by the prosecuting attorney in virtue of his office, of his own initiative and as the representative of the State, but the case is decided on its merits.
    4. JURISDICTION: Ousting School Directors. A Court of Appeals has no jurisdiction of an action whose subject-matter is the \ ousting from office of school directors. [Pronouncing void on this point the judgment in State ex inf. Brownfield v. Consolidated School District, 195 Mo. App. 507.]
    5. CONSOLIDATED SCHOOL DISTRICT: Ousting Directors: No High School: Rending Litigation. It was a prudent matter for the directors of a consolidated school district not to hold an election to authorize them to issue bonds for the purpose of establishing a central high school while litigation seeking to disincorporate the district was pending; and if during that time they maintained such elementary schools as a levy of a sixty-cent tax permitted, they cannot he ousted or the consolidated district dissolved for a failure to maintain a high school.
    Appeal from Pike Circuit Court. — Eon. Edgar B. Woolf oik, Judge.
    Beversed and remanded (with directions.)

      John W. Matson for appellants.
    (1) The trial court erred in refusing to give instructions asked for by. appellants at the close, of all the evidence. State ex inf. Atty. G-en. v. Consolidated School District No. 2, 275 Mo. 522; State ex rel. Letcher v. Dearing, 253 Mo. 614; State ex rel. v. Wilson, 30 Kan. 661. (2) The trial court erred in dissolving the consolidated school district in this proceeding, said district being an incorporated municipality, and municipal charters cannot be forfeited or dissolved by this character of proceedings. State ex inf. Atty. Gen. v. Con. School Dist. No. 2, 275 Mo. 522; State ex rel. Letcher v. Dearing, 253 Mo. 604; 1 Dillon on Municipal Corporations (3 Ed.), chap. 7, par. 165-168; Bishop on Public Corporations, par. 118-19; High on Extra Legal Bebí. 616, 617, 618, 637, 643, 645; McDonough v. Bacon, 84 S. E. 588; Commonwealth v. Pittsburgh, 14 Pa. St. 1777, 14 Pa. St. 181; Atty. Gen. v. Salem, 103 Mass. 138; Bailey on Habeas Corpus, par. 337; 17 Ency. PI. & Pr. p. 399; Sec. 10870, E. S. 1909; State ex rel. v. Sheppard, 192 Mo. 497. (3) The court erred in ousting the board of directors of said district. Especially at the relation of the private relators in this case. State ex rel. v. Wilson, 30 Kan. 661. If relators had any remedy against the directors it should have been pursued by mandamus. State ex inf. Atty. Glen. v. Consolidated School Dist. No. 2, 275 Mo. 522; State ex rel. v. School District, 131 Mo. 505. “It is the duty of the directors to adopt school books required by proper authorities, and all failure so to do, mandamus is the remedy.” State ex rel. v. School District, 74 Mo. 21. “If there has been any laches on the part of the relators, or if there are any other remedies the court •will not grant the writ” of quo warranto in this case. The prosecuting attorney as relator might have proceeded by mandamus. State ex rel. Jackson v. Mansfield, 99 Mo. App. 146, 260 Mo. 284; State ex rel. Anderson’v. Moss, 187 Mo. App. 151; State v. Talbot, 133 Mo. 69; 23 Am.. & Eng. Ency. Law (2 Ed.), p. 626. Quo warranto will not lie merely to redress official misconduct or to test the legality of official action on the^ part of one whose right to exercise legitimate powers of the office is not at issue. 23 Am. & Eng. Ency. Law, p. 632 and note; State v. Wilson, 30 Kan. 666'. (4) The court erred in rendering the decree rendered in this cause, especially in undertaking to re-incorpórate the old districts, which were disincorporated by the incorporation of the admitted Consolidated School District No. 3. State ex inf. Atty. Gren. v. Consolidated School District No. 2, 275 Mo. 528; State ex inf. v. Smith, 271 Mo. 168.

      Tom B. McGinnis, Prosecuting Attorney, and Eostetter & Haley for respondents.’
    (1) The consolidated district failed to comply with the provisions Sec. 10776, R. S. 1909, and with the provisions of the Act of 1913, Laws-1913, p. 721, applying to city, town and consolidated schools, and thereby lapsed as a corporate body, and its directors were •properly ousted in a proceeding in the nature of quo' warranto brought at the relation of resident taxpaying citizens of the district. State ex reí. y. Claxon, 263 Mo. 701; State ex inf. Atty. Gren. v. Consolidated School Dist. No. 2, 275 Mo. 522; State ex rel. v. School Dist. No. 5, 195 Mo. App. 507.
   BOND, C. J.

The prosecuting attorney of Pike County, upon the relation of D. R. Kemble and others, filed an information in the nature of a, quo warranto for the purposes of annuling the corporate franchise of Consolidated School District No. 3, which had been created according to law, and of ousting its duly elected directors from their offices as such, upon the ground that said corporation and its directors had failed to perform the duty prescribed by law, “to-wit, the maintenance of a high school or consolidated district school therein. "

After the overruling of their demurrer, respondents answered, admitting the incorporation of the consolidated district out of portions of territory of five school districts, at an election held on June 29, 1915; admitting that said consolidated school district had not maintained a high school, but averring that it had maintained two public schools within said consolidated district for instruction up to and including what is known as the eighth grade, and that all school advantages which the inhabitants of said consolidated district had enjoyed before its incorporation were provided and had been maintained for them ever since;, averring further that said prosecuting attorney, shortly after the formation of said consolidated district, to-wit, October 4, 1915', filed an information in the nature of a quo warranto upon the relation of D. R. Kemble and other persons, attacking the validity of the incorporation of said- consolidated district and seeking to forfeit its franchise and oust its then directors from their offices as such; that upon issues joined by answer and reply, said cause was tried in the circuit court on October 22, 1915, and a judgment entered therein against the relators in said proceeding and in favor of the respondents therein; that thereafter the relators in said proceeding duly appealed to this court. Respondents further answered that they promptly moved to advance the hearing of said cause in the Supreme Court in order that the validity of the incorporation of said district should be established and that they might thereafter take a vote for the issuance of bonds for the erection of a high-school building.

To this answer respondents, in the present proceeding, filed a reply admitting their previous attempt by information in the nature of quo warranto, to annul the charter of said consolidated district, and that judgment in that proceeding was rendered in favor of respondents therein; averring that respondents, after the institution of the present action, sought to prohibit its entertainment in the circuit court and that the Supreme Court denied that application. Respondents further replied that thereby the Supreme Court held that the pendency of the former proceeding did not bar the institution of the present information in the nature of a quo warranto, which was brought pending the appeal in the former.

Upon these issues the present case was submitted to the court without a jury. The learned trial judge found that respondents had not established or maintained a high school or consolidated district school since the organization of said Consolidated School District Number Three, whereupon he rendered judgment, on June 14, 1918, “that said Consolidated School District No. 3 of Pike County, be and the same is hereby dissolved and i-ts charter, rights and franchises in all respects forfeited and held for naught,” and further, that its directors named in the present proceeding be ousted from their positions and shorn of all authority as such directors. The learned trial judge further ordered and decreed that the several school districts out of whose territory said consolidated district was formed be restored to all the rights they had prior to the establishment of said consolidated district, with full power and authority in each of said districts 23, 26, 28, 32 and 33 to manage its own school affairs by a hoard of directors as if no consolidated school district had ever been formed.

In addition to the admissipns in the pleadings, the evidence showed that for three years prior to the judgment of the circuit court the respondents had maintained an organization and disbursed the moneys received by them in the maintenance of two common schools for two years during eight months of each year, and for the third year the maintenance of said schools for seven months; that they had expended for these purposes all of the sixty per cent levy of taxation for their, benefit, except what was used in defraying attorneys fees in the litigation attacking the validity of the incorporation of said consolidated school district; that they had not taken a vote for a bond issue to construct a high school, for the reason that such securities would not be marketable pending an appeal from the former judgment in their favor establishing the validity of the incorporation of the consolidated school district.

It is suggested in this case that our records show that the appeal taken from the former judgment in their favor in the former suit was dismissed by the appellants therein after the obtention by them of the judgment from which the present appeal is taken.

The evidence showed that respondents have been seeking to accomplish the ends for which the consolidated district represented-by them was formed, to the extent that the revenue derived by them from taxation and other purposes, except what was paid to their counsel, has been devoted to the maintenance of schools for the benefit of the inhabitants of the district.

I. Plainly the judgment of the circuit court which sought to resuscitate the defunct school district was dehors the pleadings in this case and dehors the power of the court to render. [Laws 1913, p. 723, sec. 6;. State ex inf. v. Smith, 271 Mo. l. c. 177.] If the Present consolidated school district was legally established (which is the basic allegation of relator’s snit) then its dissolution, even if validly decreed, would not, per se, restore the corporate franchises of the previous school districts, nor restore its directors to their former offices and functions. Neither was it within the judicial power of the circuit court after dissolving the consolidated district, to recreate and restore the former districts or their officers even if such issue had been within the pleadings, for when the former districts ceased to exist as' such, the terrain comprehended within them became a part of the new consolidated, district formed thereof, and upon a valid dissolution of the latter, such terrain would become “unorganized territory” (R. S. 1909, sec. 10776), and could thereafter be organized into school districts only by the method prescribed in the statute and upon the votes of its inhabitants. [R. S. 1909, sec. 10836.] It is clear, therefore, that so much of the judgment of the learned trial court as undertook to reincorporate the former school districts and refunetion their officers, was outside' the issues on trial, as well as outside the pale of judicial authority. So much, therefore, of the decree in the present case as undertook to do this, was a simple nullity.

II. The decisive question on this appeal is whether or not the remainder of the judgment of the trial court purporting, to annul the incorporation of the Consolidated School District No. 3 and oust its officers, can be sustained under the pleadings and con-ce(je(j facfs. Without stopping to inquire whether as to that part of the decree which undertook to disincorporate one of the respondents, it was not indispensable under the rule in this State that the information in the nature of a quo warranto should have been filed by the prosecuting, attorney in virtue of his office, of Ms own initiative and as the representative of the State (State ex inf. v. Smith, 271 Mo. l. c. 178; State ex inf. v. Woods, 233 Mo. 380; Black v. Early, 208 Mo. l. c. 307; Bank v. Rockefeller, 195 Mo. l. c. 151; State ex rel. v. Birch, 186 Mo. l. c. 219; State v. St. Louis, etc., Ins. Co., 8 Mo. 330; Inhad. Fredericktown v. Fox, 84 Mo. l. c. 65; Gribbs v. Somers Point, 49 N. J. L. 515, et cases cited), we will dispose of the case on its merits in so far as the decree annulling the charter is concerned and determine the correctness or incorrectness of that judgment as if the quo warranto had been filed by the prosecuting attorney, not upon the relation of private persons (State ex rel. v. McSpaden, 137 Mo. l. c. 634), but solely in his official capacity as a representative of the State. We decided to take this course for the further reason that in so far as the information in the nature of quo warranto was filed for the additional purpose of ousting the directors, it might well have been exhibited for that object only, by the prosecuting attorney upon the relation of private persons. [R. S. 1909, sec. 2631; State ex rel. v. McSpaden, 137 Mo. l. c. 634.]

This quo warranto seems to have been instituted under the views expressed by the Kansas City Court of Appeals in State ex inf. Brownfield v. Consolidated School District No. 5, 195 Mo. App. 507. That action, like the present, was a quo warranto by the prosecuting attorney of Cooper County upon the information of private persons seeking a judgment of forfeiture of the corporate franchise of said district and to oust the directors. A judgment of the circuit court of forfeiture and ouster was rendered. This was affirmed by the Kansas City Court of Appeals upon its view that the Act of the Legislature (Laws 1913, p. 722 et seq.) made it the duty of consolidated districts formed thereunder to maintain high schools under penalty of forfeiture of their charters. In addition to the inadequacy of the reasoning of that opinion, as pointed out in State ex inf. v. Con. School Dist. No. 2, 275 Mo. l. c. 528, it is apparent that the Court of Appeals overlooked a question presented by the record proper, which ousted them of any jurisdiction of the subject-matter of the appeal, since the pleadings sought and the court affirmed a judgment ousting the directors of the consolidated district from further tenure of their offices as such. On the subject of appellate jurisdiction of such questions, after reviewing all the authorities, Marshall, J., speaking for this court, said:

Those cases were bottomed upon the proposition that the title to an. office under this State was involved, although the person was not a State officer within the meaning of the Constitution. Since the rendition of those decisions this court has entertained jurisdiction in cases seeking to oust school directors from their office on the ground that the case involved the title to an office under this State, although the person was not a State officer, and this, too, notwithstanding it has also been held that a school district is not a political subdivision of this State so as to confer appellate jurisdiction upon this court in cases where a school district is a party.” [State ex rel. v. Harter, 188 Mo. l. c. 527.]

It is apparent from this ruling that the Kansas City Court of Appeals had no jurisdiction whatever of the subject-matter of the action as far as it sought to oust the school directors from the tenure of their offices as such, and that its judgment affirming that of the circuit court on that point was void.

The undisputed facts in this case bring it clearly within the doctrine announced by this court in banc in State ex inf. McAllister v. Con. School Dist. No. 2, 275 Mo. 522. In that case it will be noted that the quo warranto was brought by the Attorney-General of the State, solely in his official capacity, to forfeit the charter of a consolidated school district and oust its directors, for the alleged failure on their part to comply with Section 10776, Revised Statutes 1909, and the statute (Laws 1913, p. 721) providing for the formation of consolidated school districts and prescribing their duties. The substance of the testimony in that case disclosed that the respondent school district, as far as it was able to do so, endeavored, to maintain and conduct the schools referred to in the act authorizing the creation of consolidated school districts; that some inhabitants of the district were recalcitrant and instituted litigation affecting the right of the consolidated school district to receive and disburse its revenues; that the school district, as far as it could do so, performed all of its statutory duties. Upon consideration of these facts it was ruled that no ground of forfeiture existed under the terms of the statute invoked by the relator in that case and the' judgment of the trial court decreeing a forfeiture was reversed and the cause remanded with directions to dismiss the proceeding.

It is not denied in the present case that all the revenue obtainable by the respondent Consolidated School District has been honestly and faithfully applied to the purposes of its organization. The pith of the contention of the learned counsel for relator is that the Consolidated District has not up to the present time erected a high school building. A complete answer to that suggestion is furnished by the record facts disclosing that until the rendition of the judgment of the lower court in this case, there was pending on appeal in this court a quo ivarrcmto filed for the purpose of dissolving the respondent corporation. It was a simple matter of prudence and in consonance with the advice of their counsel, that the respondent directors did not hold an election for the purpose of authorizing an issue of bonds while the question of the validity of their incorporation was before the court and undetermined. It is common knowledge that it would have been impossible to market or sell such bonds at anything like their fair value, while a suit was undisposed of which challenged the right of the corporation to exist at all. Capital is as sensitive as a mimosa plant. It instinctively shrinks from any offering whose validity is open to legal attack or question. Cognizant of this capitalistic creed, respondents acted with praiseworthy prudence in postponing an election for a bond issue until the determination of the snit touching the validity of the charter of the Consolidated School District. The evidence leaves no donht of the intention and purpose on the part of the respondents to take prompt and proper steps to secure a bond issue as well as State aid, for the erection of a central high school and the performance of the duties prescribed in the highly remedial act authorizing such consolidations.

Under the pleadings and evidence the judgment of the trial court was erroneous: it is therefore reversed and the cause remanded with directions -to dismiss the petition. It is so ordered.

All concur.


author: BLAIR, J. BOND, C. J.

text:
    THE STATE ex rel. FRANK W. McALLISTER, Attorney-General, v. JOHN W. DUNN.
    In Banc,
    February 15, 1919.
    1. TREASURER: Eligibility of Deputy Collector. In view of tlie statute (Sec. 3-756, R. S. 1909) declaring that “no sheriff, marshal, clerk or collector or the deputy of any such officer, shall be eligible to the office of treasurer of any county,” one who was deputy collector of the City of St. Louis and held that office at the time of his election to - the office of treasurer of the city and thereafter until a short time before the term of the office of treasurer began, cannot hold the office of treasurer. He was incapable of being lawfully chosen treasurer. The statute does not mean -that a deputy collector may be elected treasurer while still such deputy, and take the office of treasurer if he is not such deputy at the time he actually assumes the office of treasurer.
    2. ELIGIBILITY: Meaning: Legislative Intention. Admitting that the word “eligible” may mean both “electable” or “capable of being chosen” and “qualified to bold office,” whether it is to be given the one meaning or the other depends upon the legislative purpose expressed in the statute using it and in statutes in pari materia.

      Held, by BOND, C. X, concurring, that the term “eligible”’ when used in the statutes or Constitution without contextual qualification or modification refers to the legal capacity to hold the office at the time of the election or appointment, and that the qualification of the person appointed or elected must exist at the time of the accrual of his right .or title thereto.
    3. -: Vain Legislative Purpose: Incompatible Offices. The word “eligible” will not be so construed as to render a legislative enactment a vain and useless thing. If the duties of two offices are incompatible, a statute which says that a person who holds one shall not be eligible to the other will not be held to mean that an officer can be elected or appointed to the other and then resign the one he holds and take charge of the other. The Legislature intended that the same person cannot be collector and treasurer at the same time, or step out of the office of collector into that of treasurer, since the duties of receiving and granting acquittance for public money are incompatible.
    Quo Warranto.
    WRIT ISSUED.

      Frank W. McAllister, Attorney-General, Clarence P. Le Mire, Assistant Attorney-General, and Wilfley, McIntyre, Fardin & Nelson for relator.
    (1) Since the respondent was deputy collector of the City of St. Louis on the date .of the election in November, 1918, he was not eligible to the office of treasurer of said city, and therefore, is not now entitled to that office. E. S. 1909, sec. 3756. (2) The weight of authority is that the term “eligible” as used in a statute means capacity to he chosen, and that therefore .the qualifications must exist at the time of election. 29 Cyc. 1376; Searcy v. Grow, 15 Cal. 117; Taylor v. Sullivan, 45 Minn. 309; Eoane v. Matthews, 75 Miss. 94; State v. Moores, 52 Neb. 770; State v. Lake, 16 E. I. 511; State ex rel. Nourse v. Clark, 3 Nev. 566; People v. Purdy, 47 N. Y. Supp. 601; Com. v. Pyle, 18 Pa. St. 519; In re George II. Corliss, 11 R. T. 638; Finklea y. Parish, 160 Ala. 230; Searcy v. Grow, 15 Cal. 117; Sheehan v. Scott, 145 Cal. 686; Reynolds y. Howell, 126 Pac. (Wash.) 954; Taylor y. Sullivan, 45 Minn. 309; Shepherd v. Sartain, 185 Ala. 439; State ex inf. Major v. Breuer, 235 Mo. 240; State ex rel. McKelvie v. Wait, 95 Neb. 806; Cost v. Kelly, 255 Pa. 475. (3) It is a cardinal rule of construction that the words of a statute should he so construed as to effectuate the purpose and intent of the lawmakers,hence that construction should he adopted which will best subserve the general purpose for which the law was enacted. Reynolds v. Howell, 126 Pac. (Wash.) 954; McKelvie v. Wait, 95. Neb. 806; Sutherland on Statutory Construction, par. 363;- United States v. Goldenberg, 168 U. S. 102; Sutherland on Statutory Construction, par. 369; Springfield v. Butterfield, ' 98 Me. 155.'

      Edward W. Foristel and Wells Blodgett Priest for respondent.
    (1) No ineligibility existed as to respondent at the time of taking office as treasurer of the City of St. Louis, and therefore relator’s bill fails to state a cause of action against respondent. Bradfield v. Avery, 102 Pac. (Idaho) 687; State ex rel. Thornburg v. Huegle, 112 N. W. (Iowa) 234; People v. Hamilton, 24 Ill. App. 609;. Smith v. Moore, 90 Ind. 294; Privett v. Bickford, 26 Kan. 52; State v. Smith, 14 Wis.-497; Kirkpatrick v. Brownfield, 97 Ky. 558; Demaree v. Scates, 50 Kan. 275; Shuck v. State, 135 Ind. 63; People v. Leonard, 73 Cal. 230; State ex rel. Perime George .v- Van Beek, 19 L. R. A. 622; State ex rel. v. Murray, 28 Wis. 96; State v. Trumpf, 50 Wis. 103; State ex rel. Oakley v. Fowler, 32 Atl. (Conn.) 162; Martin v. Kenyon, 134 N. T. Supp. 1007; State ex rel. West v. Breckenridge, 126 Pac. (Oída.) 806; Hoy v. State, 81 N. E. (Ind.) 509; State ex rel. Ryors v. Breuer, 235 Mo. 240; King v. Parry, 4 East, 548; People ex rel. Miller v. Mynderse, 140 App. Díy. (N. Y.) 789; State ex inf. Barker v. Koeln, 270 Mo. 174.
   BLAIR, J.

Respondent was deputy collector of the City of St. Louis. He became a candidate for the office of treasurer of that city and received a majority of the votes cast at the election. Respondent held his office of deputy collector until after November election and until a short time before the term of treasurer began. This is a proceeding to oust him from the office of treasurer, which office he has assumed.

This case involves a construction of Section 3756, Revised Statutes 1909, which reads thus: “No sheriff, marshal,' clerk or collector or the deputy of any such officer, shall be eligible to the office of treasurer of any county. ’ ’

It is conceded that under the 19th clause of Section 8057, Revised Statutes 1909, Section 3756 applies to the City of St. Louis.

Relator’s position is that under Section 3756 a deputy collector is incapable of being lawfully chosen-treasurer. Respondent’s contention is that a deputy collector may be elected while still such deputy and may take the office if he is not a deputy collector at the time he actually assumes the office.

The authorities in other jurisdictions hopelessly conflict on the abstract question ’ whether the word “eligible” means “capable of being chosen” or “capable of holding” office. Commentators disagree as to which meaning is supported by the weight of authority. On this question cases are frequently cited which we do not think bear upon the point at all. In State ex rel. v. Smith, 14 Wis. 497, it was held that an alien was incapable of holding office in Wisconsin. In State ex rel. v. Murray, 28 Wis. 96, it was held that while an alien might not hold office, yet one who had taken out first papers and was then elected to office and afterward, prior to entering upon the duties of the office, was naturalized, was lawfully in possession of the position. No statute or constitutional provision was involved.. The sole question was whether public policy rendered the relator incapable of being chosen for office or whether it permitted him to be chosen before taking out his final papers and then permitted him to- assume and hold the office after taking out such papers. There was no real question as to the meaning of any statute or constitutional provision, nor yet as. to the meaning of any previously formulated and declared rule. The question was whether public policy required this rule or that. In that case the court formulated the principle. In this case the question is as to the meaning of a rule of policy formulated and enacted into a statute by the Legislature. The question in that case is wholly unlike that in this. The same thing, for the same reason, is true of the following decisions: State et al. v. Trumpf, 50 Wis. 103; State ex rel. v. Van Beek, 87 Ia. 569. Other cases cited are based upon statutory or constitutional provisions which expressly relate to capacity to hold office. [Privett v. Bickford, 26 Kan. 52; State ex rel. v. Fowler, 66 Conn. 294.] Other authorities referred to are based upon provisions to the effect, in substance, that “no person shall be a member,” etc. [Secs. 2 and 6 of Art. I, and Sec. 3 of 14th Amendment, Constitution of the United States.] In some of these and other provisions language is used expressly designating qualifications which must be possessed at the time of election.

It seems obvious that a provision relating solely to holding an office or being a member does not open the way for any decision of a question like that in this case. The same thing is true of provisions expressly referring to qualifications at the time of election.

The courts differ as to the primary meaning of the word “eligible.” Some hold its primary meaning is “electable” or- “capable of being chosen;” others, that it is “qualified to hold office.” ' Some hold that the word is susceptible of both meanings, and that in each case it is necessary, in accordance with a well settled canon of construction, to give the word the meaning which will carry out the purpose of the Legislature. [Demaree v. Scates, 50 Kan. l. c. 278; Kirkpatrick v. Brownfield, 97 Ky. l. c. 562 et seq.] This seems to us the correct conclusion; To apply to the word elibible in every ease a fixed meaning without regard to the context, the law in pari materia, the evil to be remedied or averted, would be to overturn vital rules of construction and miss the legislative intent in each case in which the law-making body happened to use the word in another, though legitimate, sense. Upon this question this Court has already declared itself. In State ex inf. v. Breuer, 235 Mo. l. c. 250, 251, in a concurring opinion by Valliant, J., this court, six judges concurring, held that whether the word eligible, used in a statute, is used with reference to the election or the time of taking office “depends on the context and on the subject.” We had before us in that case most of the authorities cited in this. After a re-examination of these and others now brought to our attention, we see no reason for receding from the position taken in that case.

In connection with the original enactment of Section 3756, Eevised Statutes 1909 (See Arts. II and IV, Chapter on County Treasurer, E. S. 1835), was enacted a section providing that “all collectors, sheriffs, clerks, constables and other persons, chargeable with monies belonging to any courts, shall render their accounts to, and settle with, the county court at each stated term thereof, pay into the county treasury any balance which may be due the county, take duplicate receipts therefor and deposit one of the same with the clerk of the county court, within five days thereafter.” The word “courts” is apparently a misprint for “county.” It appears, as “county” in Revised Statutes 1845, Chap. 41, Art. II. This section has been carried forward without change. [Sec. 3772, R. S. 1909.] Then, as now, the term of the (ex-officio) collector ended on January 1st. The statute made the treasurer’s office an appointive one. [Sec. 1, Art. I, R. S. 1835, p. 150.] No term was fixed. What did the Legislature mean when it enacted, in this connection, the provision that “no sheriff,' clerk or collector, or the deputy of either, shall be eligible- to the office of treasurer?” If we assume the word “eligible” was then used in the sense respondent now seeks to give it, a collector could have been appointed treasurer by the county court, then could subsequently have resigned as collector and lawfully qualified as treasurer. This construction, reduced to its lowest terms, would mean that what the Legislature intended was that one could not be both collector and -treasurer at the . same time. It is a well settled rule that the Legislature is not to’ be held to have done a vain and useless thing. It is elementary law that one may* not hold two offices the duties of which are incompatible. What greater incompatibility could be conceived than the duty of paying and the duty of receiving and granting acquittance for public money? If one person could be both collector and treasurer, he would pay over the money as collector and receive it as treasurer, and, as treasurer, issue a receipt to himself, as collector. Under the general law it is settled no man could have held these two positions. Construed as respondent construes it, the statute added nothing whatever to the law and was a useless enactment, a vain and foolish thing. The general law, already in force, covered the whole matter. So far as it concerns the collector, the evil designed to be averted by the statute was not merely that one man should not hold two incompatible offices, but that no man should be put in the possible position of receiving payment from himself though he hold but one office, that of treasurer.

Section 19 of Article 2 of the Constitution, and Section 11446, Revised Statutes 1909, are construed to apply only to those who “ ‘have been determined by legal authority .to be in default, or admit they are in default. Thus ‘default is said to mean a wilful and corrupt omission to pay over funds.’ ” [State ex inf. v. Breuer, 235 Mo. l. c. 249.] This section, therefore, does not appear to cover the case of a collector who has public money in his hands „at the end of his term about which there' is no pending dispute, but which he must pay over before he can get final acquittance as collector. However that may be, these provisions were incorporated in our law in 1872 and 1875, forty years after the enactment, in all legal substance, of Section 3756.

It seems clear that unless the Legislature meant that a collector was incapable of being chosen treasurer it enacted a useless statute, and it left the law in such condition that one could be chosen treasurer and take and hold the office when, in all probability, public money in his hands in his former official capacity would have to be received and receipted for by himself in his new official capacity. That the Legislature intended to accomplish something is not an unreasonable conclusion. That the statute should be construed to effect this, if on its face it is open to two reasonable constructions, is settled law. That the construction given the statute by relator clearly would reach an evil very likely to occur under the law at the time the statute was enacted is apparent. Relator’s construction explains the enactment of the law. Respondent’s construction leaves it without reasonable basis and opens the way for practices which none can defend.

These considerations lead to the conclusion that relator’s construction is the only one which reasonably could be applied to the statute as originally enacted in 1835, when “the context and the subject” are given their proper force. It is not contended there has been any amendment of the section. The change of the treasurer’s office from an appointive to an elective one had no tendency to amend the section or remove the disqualification. In justice to counsel it is proper to say they do not so contend. Neither is it contended or suggested that a deputy collector is not, or ought not to be, upon the same footing as his chief.

It follows that the writ of ouster must be awarded. So ordered.

All concur, Bond, C. J., in separate opinion.

BOND, C. J.

(concurring). — I concur in the majority opinion for the following reasons: I think the term “eligible” when used in statutes or the Constitution without contextual qualification or modificatory terms, refers to the legal capacity to hold an office at the time of election or appointment thereto of the person designated. The right and title to an office is determined by a valid election or appointment thereto, hence the qualification of the person chosen or appointed must exist at the time of the accrual of his right and title. [See 29 Cyc. 1376, par.b and cases cited.] Intimations to the contrary in some of our previous rulings (State ex inf. v. Breuer, 235 Mo. 240 et cases cited) should be overruled.

For these reasons I concur in the result of the majority opinion.