author: BROWN, C. PER CURIAM:

text:
    AMERICAN MANUFACTURING COMPANY v. CITY OF ST. LOUIS, Appellant.
    In Banc,
    February 13, 1917.
    1. TAXATION: Property Outside State. A city of Missouri has no power to levy a direct property tax upon subjects of taxation outside the State. The subjects of taxation are persons, property and business, and each must be situate'within the jurisdiction of the taxing power to authorize its exercise.
    2. -: License a Property Tax. The ad valorem tax levied under our State laws upon merchants and manufacturers, though levied in the form of a license, is a tax upon property, as distinguished from taxes upon business.
    3. -: Manufacturer’s License: Bight to Sell Goods Stored Elsewhere. The city of St. Louis has the power to license and tax manufacturers within its limits, and to prohibit them from pursuing their manufacturing business unless such license is secured; «,na the tax may be graduated according to tue amount of sales; and, tax may be graduated according to the amount of sales; and, hence, the manufacturing company must pay a license tax on goods made in the city, whether they are stored within this State or elsewhere before sale, and whether sold from the company’s office in this State or from its principal office loqated in another State.

      Appeal from St. Louis City Circuit Court — Ron, Wilson A. Taylor, Judge.
    Reversed and remanded (with directions).

      Charles H. Daues aud Truman P. Young for appellant.
    (1) The license tax of one dollar per thousand upon sales levied by the ordinances of the city is an occupation tax, and not a tax upon property. In this respect it is distinguishable from the ad valorem taxes. American Union Express Co. v. St. Joseph, 66 Mo. 681; Clark v. Titusville, 184 U S. 333; Society for Savings v. Coite, 73 U. S. 608; Maine v. Grand Trunk Ry. Co., 140 U. S. 227-8; Home Insurance Co. v. New York State, 134 U. S. 600; Aurora v. McGannon, 138 Mo. 48; St. Louis v. United Railways Co., 210 U. S. 279; St. Louis v. United Railways Co., 263 Mo. 441; State ex rel. American Mfg. Co. v. Alt, 224 Mo. 493; Jarman v. School District, 264 Mo. 654. (2) The occupation tax levied upon sales is a tax upon the privilege of manufacture. It is a manufacturer’s license and not a merchant’s license. The amount of the tax is graduated by the amount of sales, but is in no'sense a tax upon sales nor a tax upon the goods sold. The city may collect an ad valorem tax upon property used in a business and at the same time impose a license tax upon the pursuit of that business. St. Louis v. Ernst, 95 Mo. 367; St. Louis v. Green, 70 Mo. 562; State ex rel. v. Tracy, 94 Mo. 217; Brookfield v. Tooey, 141 Mo. 625; and cases cited above. (3) A license tax levied upon a manufacturer and graduated in accordance with the amount of sales made by such manufacturer should include a tax on account of all sales of goods manufactured, even though such goods are destined for interstate commerce or have been shipped into other States and there warehoused pending sale. A State may tax all occupations and all businesses carried on within its borders, and all privileges and franchises derived from the State. Such a tax is not a tax upon interstate commerce, though the amount is arrived at by considering the sale of products which are destined for such commerce. United States v. Stowell, 133 U. S. 16; Coe v. Errol, 116 U. S. 524; Car Co. v. Pennsylvania, 141 U. S, 18; Perry Co. v. Pennsylvania, 114 U. S. 196; Tel. Co. v. Attorney-General, 125 U. S. 549; Railroad v. Knight, 192 U. S. 21; Match Co. v. Ontonagon, 188 U. S. 82; Hopkins v. United States, 171 U. S. 578; Galveston Ry. Co. v. Texas, 210 U. S. 225; Ficklin v. Shelby County, 145 U. S. 1; Hatch v. Reardon, 204 U. S. 152; State v. Brodnax & Essex, 228 Mo. 25, 219 U. S. 285; Am. Mfg. Co. v. St. Louis, 238 Mo. 277; State v. Applegarth, 28 L. R. A. 816. (4) The taxes considered in the third paragraph of the opinion in the case of American Manufacturing Co. v. St. Louis, 238 Mo. 278, were on account of sales of products manufactured at a factory in New York. Such sales should he clearly distinguished from the sales in controversy here, which were of the products of the St. Louis factory.

      Barclay & Wallace for respondents.
    (1) The city ordinance in evidence under the supposed authority of which-was extorted the payment of one dollar on each thousand dollars of the sales of goods manufactured in St. Lous (hut sold and delivered while same were outside of Missouri) furnishes no justification for the exaction in question. The effect of that ordinance has already been construed by this court in accord with respondents’ contention on that point. Am. Mfg. Co. v. St. Louis, 238 Mo. 278. (2) Said ordinance is a personal property tax; and had it been intended to provide for a tax on such sales it would, as to the same, be clearly invalid under the Federal Constitution, for such a tax on such sales, as such, would he a direct interference with and burden on interstate commerce; and the city could not indirectly accomplish the same result by clothing this tax in the garb of an occupational license. Nature of tax: State ex rel. v. Alt, 224 Mo. 506; Jarman v. School Dist., 264 Mo. 654. Validity of ordinance: Welton v. Missouri, 91 U. S. 275; Crinshaw v. Arkansas, 227 U. S. 389; Barrett v. New York, 232 U. S. 14; D. E. Foote & Co. v. Stanley, 232 U. S. 494; Davis v. Virginia, 236 U. S. 697.
   BROWN, C.

— This case, like the one numbered 18185 decided at this term, is to recover license taxes paid the city of St. Louis by the plaintiff, a corporation of.West Virginia of the same name as, and successor to, the plainT tiff in the other case, in the manufacture of Jute bagging.

• The questions raised in this appeal are the same as those raised in the other case, with the addition that in this case the'tax exacted for manufacturer’s license was extended upon sales of goods manufactured in the city of St. Louis, and warehoused outside the State of Missouri, and sold and delivered from such warehouses to customers outside the State, for which, with other items not now in dispute, judgment was rendered for the plaintiff with interest at six per cent from the date of payment.

The sales in dispute were described in the plaintiff’s return as follows: “Sales made through St. Louis office and filled from stock made in St. Louis, but shipped from points other than St. Louis to States other, than Missouri.” In its evidence its bookkeeper and cashier explained this by saying that the company had a dozen warehouses in St. Louis; that he did not know how many there were in New York, and that the bagging is stored in St. Louis as long as the company can find a warehouse to take it, and when the local capacity is exhausted it ships to Memphis or points like New Orleans, from which places orders are filled from goods made in St. Louis, which may lie there for a year.

In its letter June 23, 1910, transmitting a check tendered as payment of its license tax, the respondent wrote: “In explanation of the small aggregate amount of our sales for the year ending June 1, 1910, we would say that during that year the principal selling office of this company has not been in the city of St. Louis, as had been the case in prior years;” and in a letter of July 21, 1910, made the following additional explanation: ‘ Since our report for year ending June 30, 1909, was made, we made a very material change in our method of doing business with our home office in New York, so that substantially all our sales; though negotiated here, of merchandise stored in this and other cities, are confirmed by and are not effective until they are confirmed by the home office in New York. W'e are advised by our counsel that sales so made are not taxable in the city of St. Louis.

The matters at issue in this appeal are: (1) 'whether the circumstances under which the payment was made were voluntary or involuntary with respect to the right to recover it back; (2) whether interest was recoverable; and (3) whether the city had the right to levy the license tax based on the amount of these sales.

We have stated these questions in the order named because the first two are decided by us in the other case, in which they were presented upon precisely similar facts and with the same arguments, and we see no reason to modify the opinion there expressed.

The important question relates to the nature of the tax, for the defendant, city has not the right to levy a direct tax upon subjects of taxation outside the State from which it holds its powers. These' subjects are persons, property and business, and each must be situated within the jurisdiction of the taxing power to authorize its exercise. The vital difference between these parties is whether the tax in question is a tax upon business done in the city of St. Louis or upon property situated in States other than Missouri. The,dividing line must be definite, however; for if a part of the subject upon which the tax is sought to be imposed is situated in another State we have no data by which it can be apportioned, and, as is said by Judge Cooley (1 Cooley on Taxation, 25), “the power of taxation, however vast in its character, and searching in its extent, is necessarily limited to subjects within the jurisdiction of the State.” On the other hand the State may exercise this sovereign right with respect to all persons, things and business activities which exist under the protection of its laws, and, as is said by the same distinguished author (Ibid.), “Unless restrained by provisions of the Federal Constitution, the power of the State as to the mode, form and extent of taxation is unlimited, where the .subjects to which it applies are within her jurisdiction.” These propositions have ceased to be subjects of discussion or argument.

It is evident that the ad valorem tax levied under our State laws upon merchants and manufacturers, is a tax upon property, as distinguished from taxes upon business. The same property would be subject to taxation while its situs is within the State, whether employed in any activity ,or not. The quality of value is the test of its character in this respect, while the mode, form and extent of this taxation are wholly within the broad powers of the State. In their exercise .the Legislature has prescribed the time and manner of the assessment of this class of propérty, and as one of the remedies for the collection of the tax, has provided that its payment shall be a condition of the right of the owner to transact the business in which the property has been employed or produced, until it shall be paid. This imposition has every element of a property tax, and'is held to be such by this court. [Jarman v. Unionville School District, 264 Mo. 646; State ex rel. v. Alt, 224 Mo. 493.]

Our statute (R. S. 1909, sec. 11647) defines a “manufacturer” to be a “person, company or corporation who shall hold or purchase personal property for the purpose of adding to the value thereof by any process of manufacturing, refining, or by the combination of different materials.” It is not disputed that under the broad provision of its charter the city of St. Louis has the power to license and tax manufacturers within its limits; nor that the power includes the right to impose a tax upon the transaction of their business. Adopting substantially the definition we have quoted from the statute, it has, by' ordinance, forbidden them to pursue their business within the city without procuring a license, and has prescribed the, additional tax they shall pay for that purpose, which is graduated to accord with the amount of business they shall carry, to the point of realizing the profit or liquidating the loss by the sale of the product of their work. They may only buy and sell in pursuance of their business as manufacturers. That his right to pursue this business is the one thing he receives as compensation for this tax is evident; and that the method of^fixing its amount by the amount that he realizes from the licensed activity is a just and equitable one is not disputed; nor is the inherent justice and fairness of postponing the .payment until the realization of the result of the work. The tax- is none the less a tax upon the business of manufacture pursued in the city of of St. Louis under the protection of the laws of this State and the ordinances of the city. Any other interpretation of the ordinance under which the business is licensed would not only do violence to its terms, but would ascribe to the legislative department of the city the absurd intention to give every- person and corporation that might desire to avail themselves of it, the unlimited right to pursue the business of manufacturing in the city without license or the payment of any tax upon the privilege provided they would store their product outside the city limits and sell it through non-resident agencies, to customers in other States.

To sustain this proposition the respondent cites us to our own decision in Bane in the case of American-Manufacturing Company v. St. Louis, 238 Mo. 267, in which the learned judge who wrote the opinion said (p. 279) that “a fair and reasonable construction of defendant’s ordinance is that it was only intended to cover sales actually completed; and shipments'made from defendant city.” The question now before us was not involved, either directly or indirectly, in that case; - but the respondent, while it was pending here and under the advice of counsel, “made a very material change” in its “methods of doing business,” so that substantially all its sales, although negotiated in St. Louis, were not effective until confirmed by its home office in New York. The question is now for the first time before us in this case.

We hold that the tax in question is a -tax upon the privilege of pursuing the business of manufacturing these goods in the city of St. Louis; that when the goods were manufactured the obligation accrued to pay the amount of the tax represented by their production when it should he liquidated by their sale by the manufacturer ; that their removal from the city of St. Louis' and storage elsewhere, whether within or without the State worked no change in this obligation; that their sale by the respondent wherever they may have been stored at the time, whether it was done through its home office in New York or the office of its factory in St. Louis, should have been reported in its return to the license collector of the city of St. Louis and the amount included in fixing the amount payable on account of its iicense tax.

The judgment of the trial court is accordingly reversed and the cause remanded with directions to enter judgment in accordance with the view here expressed.

Railey, C., concurs.

PER CURIAM:

— The foregoing opinion of Brown, C., in Division Number 1 is adopted by the Court in Banc.

All of the judges concur.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    THE STATE ex rel. SECURITY INSURANCE COMPANY v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    February 13, 1917.
    CERTIORARI: Quashing Judgment in Like Cases. Where suit was brought on policies of fire insurance against several insurance companies, and appeals were taken by all the defendants from judgments in favor of plaintiff to the Court of Appeals, and in that court the cases were submitted together, the questions involved being the same in all, and that court rendered an opinion in only one of them, disposing of the others by memorandum opinions referring for their rulings to the opinion in the one case, and that opinion is quashed on certiorari as being in conflict with the prior rulings of this court, the judgments in .the other cases will also be quashed upon certiorari.

    Certiorari.

      Judgment quashed.

      Bruce Barnett and Doyle C. McDonough for relator.

      Lathrop, Morrow, Fox & Moore, Charles M. Howell and Joseph S. Brooks for respondents.
   WALKER, J.

— Relator seeks by certiorari to quash the judgment of the Kansas City Court of Appeals in the ease • of Terminal Ice & Power Company, appellant, v. The Security Insurance Company, respondent. The Terminal Ice & Power Company had brought suit on policies of fire insurance against several companies, among others the relator and the American Fire Insurance Company. After judgments in favor of plaintiff the cases were appealed to the Kansas City Court of Appeals, where the judgments were reversed and the cases remanded. [187 S. W. 564.] .The cases wtere submitted togéther,. the questions involved being the same in all. The opinion of the Uourt of Appeals was rendered in the case against the American Fire Insurance Company and was applicable in its reasoning and conclusions to the other cases. Each of the other cases was disposed of by a memorandum opinion referring for its ruling to the American Fire Insurance Company case. In a certiorari proceeding in this court the judgment of the Kansas City Court of Appeals in that case was quashed. [State ex rel. v. Ellison, 269 Mo. 410.] It therefore follows that the judgment of the Kansas City Court of Appeals in the instant case should be quashed for the reasons stated in our opinion in the American Fire Insurance Company case. It is so ordered.

All concur except Bond, J., not sitting.


author: BOND, J. PER CURIAM: GRAVES, C. J.

text:
    THE STATE ex rel. CHESTER, PERRYVILLE & STE. GENEVIEVE RAILWAY COMPANY v. BERT TURNER et al., Appellants.
    In Banc,
    February 13, 1917.
    1. APPELLATE PRACTICE: Certification from Court of Appeals. A case certified to the Supreme Court by a Court of Appeals on the ground that its decision therein is in conflict with a decision of another Court of Appeals in another case, stands for final decision and judgment, just as if it had been appealed directly to the Supreme Court from the circuit court.
    2. CIRCUIT CLERK: Negligence in Filing Bill of Exceptions: Damages. To justify a recovery of damages against a circuit clerk and his bondsmen for his failure to properly file a bill of exceptions delivered to him by the losing party who has appealed from a judgment rendered against him in the circuit court, such losing party must show actionable negligence on the part of the clerk and consequent damages.
    3. -: Filing Bill of Exceptions. When the circuit clerk accepted and deposited with other papers in the cause in his office the bill of exceptions delivered to him by appellant to be filed, the act of filing was complete, although he failed to subscribe on the bill itself any written notation of the act of filing done by him. Such notation would have been full evidence of the fact recited by it, but the fact of filing existed independently of that particular method of proving it.
    4. -: -: Damages for Failure to Obtain Reversal. Notwithstanding the fact that the Court of Appeals, to which defendant appealed from a judgment rendered against it in the circuit court, held that no bill of exceptions had been filed and affirmed the judgment upon a consideration of the record proper only, and defendant afterwards paid that judgment, defendant cannot recover in a suit for damages against the circuit clerk and his bondsmen for negligently failing to file such bill of exceptions, if the bill was delivered to the clerk within the time fixed by the ■ order of the court and he accepted it and placed it among the papers in the cause in his office, for the act of filing was complete, although the clerk did not mark it filed and made no entry on the court record showing it had been filed. [Approving State ex rel. Railroad v. Turner, 177 Mo. App. l. c. 464, and disapproving Callier v. Railroad, 158 Mo. App. 249.]

      Held, by GRAVES, C. J., dissenting, witb whom WALKER and WOODSON, JJ„ concur, that the general rule that the deposit of a bill of exceptions with the circuit clerk and an acceptance thereof by him is a filing of such bill, is a rule which he cannot invoke, but is for the protection of the party depositing the bill, established in order that such party may not be injured by the negligence of the clerk; that it was negligence of the clerk not to mark the bill filed, and as he did not do that, or make any entry on the court records showing its filing, the record could not be corrected by a nunc pro tune entry, and the Court of Appeals was authorized in holding the record showed no filing of the bill; and the clerk should be held liable for damages to the extent of the judgment which defendant has been compelled to pay because of his neglect of an imposed duty.
    Appeal from Mississippi Circuit Court — Hon. Frank Kelly, Judge.
    Reversed.

      J. L. Fort and T. R. R. Ely for appellants.
    (1) The sureties guaranteed that the clerk would perform the duties of his office “according to law,” but they did not guarantee that he would perform-them “according to the rules and customs of courts of last resort.” A law is an act, enactment, ordinance, or statute, prescribed by the legislative power, as opposed to rules of civil conduct deduced from the customs of the people, or .judicial precedents. 25 Cyc. 164; Brinckerhoff v: Bostwick, 99 N. Y. 185; Lycoming v. Wright, 60 Vt. 515; State v. Tingey, 24 Utah, 225; Phelps v. Panama, 1 Wash. 518; Swift v. Tyson, 16 Pt. 1. The decisions of courts are not the law; they are only evidence of the law. Yates v. Lansing, 9 Johns. 395; 25 Cyc. 164; Falconer v. Simmons, 51 W. Va. 172; Baltimore v. Baugh, 149 U..S. 368; United States v. Harris, 113 Fed. 27; Phipps v. Plarding, 70 Fed. 468; Hall v. Davis, 100 Ind. 422. Where an officer’s duties are prescribed by statute, usage will not excuse their discharge in a different manner. So proof of a custom is not permissible to enlarge the powers of officers whose authority is defined by statute. 12 Cyc. 1056; Crocker v. Schureman, 7 Mo. App. 358; Walters v. Senf, 115 Mo. 524; Knox County v. Goggin, 105 Mo. 182. The rules of practice in the courts of last resort in this State may require the entry of the filing of the bill of exceptions in the “vacation record” of the court, but such rules do not constitute any part of the law of the State. State ex rel. v. Broaddus, 207 Mo. 127. (2) It has been said that the word “filing” is generally used to describe the endorsement on a paper of the day when it is left at a public office; but the filing is the actual delivery of the paper to the clerk without regard to any action that he may take thereon, and does not consist of the marking put bn it by the clerk, but in placing it as a permanent record in the office, or case, where it belongs. Indeed the endorsement of the fact of filing is only evidence that such filing has been made. Lent v. Co., 130 Ñ. T. 504; Jones v. Wells, 3 Tex. App. 94; Grubbs v. Cones, 57-Mo. 83; State v. Hockaday, 98 Mo. 590; Vettison v. Budd, 21 Ark. 578; Jacksonville, v. Walton, 42 Fla. 54; Oats v. State, 153 Ind. 436; Graham v. Summers, 25 Minn. 81; State v. Heth, 60 Kan. 560; In re Dewar, 10 Mont. 426; Bishop v. Cook, 13 Barb. 326; King v. Penn, 43 Ohio St. 57; Starkwether v. Bell, Í2 S. D. 146; Franklin v. State, 24 Fla. 55; Newman v. Clayburn, 40 S. C. 549.

      Giboney Houck, James F. Green and Davis & Hardesty for respondent.
    (1) The entry of a circuit clerk showing the filing of a bill of exceptions in vacation has the dignity of a record and furnishes the only means of proof that the bill was filed, (a) The origin and early history of bills of exceptions clearly show that in the very nature of things a bill of exceptions could only be filed by permission of the court, and as the act of the court, evidenced by a record entry. Statute of Westminster II (13 Edw. 1. e. 31)'; 3 Cyc. 23; Mo. Ter. Laws 1818, p. 259, sec. 46; 2 R. S. 1825, p. 631, sec. 39; Pomeroy v. Selles, 8 Mo. 727; 2 R. S. -1855, p. 1264, secs. 27 and 28; McCarty v. Cunningham, 75 Mo. 279; Spencer v. Railroad, 79 Mo. 500; State-v. Duckworth, 68 Mo. 156; Brewer v. Dinwiddie, 25 Mo. 351; State éx rel. v. County .Court, 51 Mo. 529; Fulkerson v. Houts, 55 Mo. 301; Johnson v. Hodges, 65 Mo. 589; La Follette v. Thompson, 83 Mo. 199.. (b) Neither the Amendatory Act of 1885 nor that of 1889. modified the law on the point that the court, itself, was the sole source of authority for filing a bill in vacation, nor did these amendatory acts modify the practice of requiring a record entry in vacation, as well as in term time, for the purpose of filing a bill of exceptions. Law 1885, p. 214; R. S. 1879, secs. 3638 and 3639; Laws 1889, -pp. 189-190; R. S. 1889, secs. 2168, 2170 and 2172; Craig v. Railroad, 248 Mo. 270; State v. Ryan, 120 Mo. 88; State v. Scott, 113 Mo. 559; State v. Britt, 117 Mo. 584; Ricketts v. Hart, 150 Mo. 64; Bradbury v. Heins, 115 Mo. App. 99; State ex rel. v. Holland, 116 Mo. App! 345; Reynolds w. Schade, 131 Mo. App. 1; Williams v. Williams, 26 Mo. App. 408; La Follette v. Thompson, 83 Mo. 199; Ferguson v. Thatcher, 79 Mo. 511; Fulkerson v. Houts, 55 Mo. 302; Pope v. Thompson, 66 Mo. 661; Hayden v. Alkire Gro. Co., 88 Mo. App. 241; R. S. 1909, secs. 2029, 2031 and 2033; Johnson v. Hodges, 65 Mo. 589. (c) The doctrine of stare decisis precludes this court from changing its construction of the law covering the filing of bills of exceptions. Graham v. Conway, 91 Mo. App. 391; Fulkerson v. Houts, 55 Mo. 301; Johnson v. Hodges, 65 Mo. 589; State v. Ryan, 120 Mo. 88; Handlin v. Morgan County, 57 Mo. 116; Pennowfsky v. Coerver, 250 Mo. 37; Lawson v. Mills, 150 Mo. 429; Storage Co. v. Glasner, 150 Mo. 428; Butler County v. Graddy, 152 Mo. 443; Bick.v. Williams, 181 Mo. 527; Ricketts v. Hart, 150 Mo. 68; Goodson & Wright v. Bevan, 89 Mo. App. 162; Wilson v. Railroad, 167 Mo. 323; La Follette v. Thompson, 83 Mo. 199; Allen v. Funk, 85 Mo. App. 460; Ferguson v. Thatcher, 79 Mo. 511; Jaco v. Railroad, 94 Mo. App. 567; Dinwiddie v. Jacobs, 82 Mo. 195; Hamilton-Brown Shoe Co. v. Williams, 91 Mo. App. 511; St. Charles ex rel. v. Deemar, 174 Mo.' 122; Railroad v. Wyatt, 223 Mo. 347; Alt v. Dines, 227 Mo. 418; Hill v. Butler Co., 195 Mo. 511; Hodson v. McAnerney, 168 Mo. App. 385; Laws 1911, p. 139. (d) The Springfield Court of Appeals cites no cases which require this court to declare the law otherwise than as above indicated and contended for by respondent. Baker v.. Henry, 63. Mo. 517; Fulkerson v. Houts, 55 Mo. 301; Johnson v. Hodges, 65 Mo. 589; State v. Ryan, 120 Mo. 88; Pullis v. Summerville, 218 Mo. 624; R. S. 1909, sec. 2001; Behsley v. Haberly, 20 Mo. App. 648; R. S. 1879, secs. 293, 294, 296, 298, 299; State v. Pieski, 248 Mo. 715; Dorrance v. Dorrance, 242 Mo. 625; Ferguson v. Thatcher, 79 Mo. 511; Carter v. Prior, 78 Mo. 222; Bower v. Daniel, 198 Mo. 289; St. Charles ex rel. v. Deemar, 174 Mo. 122; Pennowsfky v. Coerver, 205 Mo. 137. . (2) The decision of the St. Louis Court of Appeals in the Callier case in question (158 Mo. App. 249) governs the ease at bar. (a) In the first place, because it declares the law as it now is. In support of this proposition we cite, all the authorities and all the arguments under point one. (b) In the second place, because the decision of the St. Louis Court of Appeals followed the then last controlling decision of the Supreme Court, and became the law of the case at bar for all purposes. Constitution, art. 6, Amendment of 1884; Shelby Co. Ry. v. Crow, 137 Mo. 461; Dorrance v. Dorrance, 242 Mo. 625; State v. Pieski, 248 Mo. 715; State V. Ellison, 181 S. W. 78, State ex rel.' v. Ellison, 181 S. W. 998; State v.. Ellison, 187 S. W. 23. (c) In the third place, because the clerk’s failure to make the entry and then falsely certifying that he had made the entry, was the proximate cause of this very decision of the St. Louis Court of Appeals. R. S. 1909, secs. 2029, 2685; State ex rel. v. O’Gorman, 75 Mo. 379; Howard v. United States, 102 Fed. 77; Callier v. Railroad, 158 Mo. App. 249. And he can’t invoke any rule that a mere depositing constitutes a filing as to him.- State ex rel. v. Dickman, 124 Mo. App. 659; Collins v. Daniel, 66 Ga. 203; Norman v. Vanderburg, 157 Mo. App. 488; Weedon v. Railroad, 78 Fed. 591. Nor can his bondsmen invoke any defense not available to him. Boone Co. v. Jones, 54 Iowa, 709; 29 Cyc. 1465.
   BOND, J.

— I. The suit of Béan Callier against the Chester, Perryville & Ste Genevieve Bailway Company for- personal injuries was tried in the circuit court of Dunklin County, of which Bert Turner was clerk, and judgment rendered against the defendant railway company, was by the St. Louis Court of Appeals upon a consideration only of the record proper, and thereupon paid' by the said railroad, which now seeks redress on the clerk’s official bond because of his failure properly to file the bill of exceptions, which negligence and failure of duty, it is alleged, deprived it of its right to have its appeal heard upon its bill of exceptions in the appellate court. The relator further claims that, had said bill of exceptions been properly filed, the said appellate court would have reversed the judgment against it; that the appellate court affirmed the judgment on the record proper, thereby compelling relator to pay the amount of the judgment and costs and suffer the further loss of expenses and attorneys’ fees incurred in perfecting the appeal.

In the instant case the relator, in order to support its theory, presented to the trial court and presents to this court, the entire record of tfie Callier case, including the bill of exceptions presented to and rejected by the St. Louis Court of Appeals.

Delator also put in evidence the opinion of the St. Louis Court of Appeals in the Callier case, to show that the appellate court held that there was no record entry, minute, notation or memorandum in the records of the circuit court that the bill of exceptions had ever been filed and therefore refused to consider the bill of exceptions as a part of the files of the case, and affirmed the judgment on the record proper.

The contention of the relator in this regard is, that if through the fault of the clerk the bill of exceptions was not properly filed and no such record of. the filing thereof made as would present the Callier bill of exceptions to the St. Louis Court of Appeals for consideration, and if reversible error was shown by sneh bill, then the trial court should, and now this court must, hold that the St. Louis Court of Appeals, except for the gross negligence of the clerk would have reversed the judgment (which was affirmed on the record proper) and thereby relator would not have been compelled to pay said judgment.

On the other hand, the defendants contend that there was no reversible error shown by the bill of exceptions and that its consideration by the appellate court would not have changed their ruling; but even conceding that it would have made a difference in their decision, at most the case would only have been reversed and remanded, and in the event of another trial Callier would, in all probability, have recovered as large, if not a larger, judgment, and therefore relator was not damaged.

The trial court, however, took relator’s view of the case, rendered judgment for the penalty of the bond and awarded execution for $6251.87. The defendants appealed.

At the time the appeal was taken Mississippi County was a part of the district of the Springfield Court of Appeals and hence the cause was sent to that court, which reversed the judgment, holding that the bill of exceptions in the Callier case had been legally filed. In conclusion the Springfield Court of Appeals, on account of its decision being in conflict with that of the St. Louis Court of Appeals, certified the cause to this court for final determination.

II. This case has reached us in the way provided in the Constitution to cause harmony in the rulings of the two courts of appeal and stands for final decision and' judgment here as if it had been appealed direct to this court from the circuit court of Mississippi County.

To justify a recovery in this action it was essential that plaintiff should show actionable negligence of the clerk and consequent damage to it. The burden of proving these two indispensable elements to any judgment against the defendants was cast upon plaintiff by law and was properly assumed in its pleadings. The question, therefore, which dominates the case is: was there any. actionable negligence attributable to the clerk on account of Ms acts and doings in and about tbe bill of exceptions wMch was delivered to bim for filing by plaintiff ?

The facts are undisputed and, in effect, are that after procuring an order of court entered of record permitting it to file a bill of exceptions within a stated time, in vacation, plaintiff prepared such bill of exceptions and transmitted it to tbe office of the clerk where it was received and deposited and a note of acknowledgment sent to plaintiff’s attorney in the form of a signed written statement (which had been inclosed for signature when the bill of exceptions was sent) to the effect that the bill of exceptions was filed within the currency of time extended by the order of record of the judge of the court before its adjournment. The clerk did not, in fact, indorse any writing indicating its filing on the bill of exceptions; be simply kept the bill of exceptions with the papers in the case in bis office.

For the reasons given in tbe opinion of the Springfield Court of Appeals, we think wben tbe clerk accepted and deposited with tbe other papers in the cause in bis office, the bill of exceptions delivered to bim to be filed, the act of filing was complete, although be failed to subscribe on the bill itself any written notation of tbe act of filing done by him. Sucb writing would have been full evidence of tbe fact recited by it, but the fact existed independently of that particular method of proving it. It would have been a perfect performance of bis duty if tbe clerk bad made a notation of its filing in writing on tbe bill; but having actually filed it, under tbe conceded acts, tbe omission to make a record of bis act did not destroy tbe act itself, but merely affected tbe method of its proof. [State ex rel. Railroad v. Turner, 177 Mo. App. l. c. 464 et seq., and cases cited.]

III. Tbe point is made that there is something in tbe nature of a bill of exceptions wbicb takes it out of tbe rule governing tbe filing of other papers or proceedings in a cause, as to all of wbicb it is not denied that tbe filing might be manifested by tbe proper' physical act, irrespective of any written evidence or indorsements.

It is difficult to perceive any intrinsic quality in a bill of exceptions distinguishing it from a pleading, a verdict or process, all of which are parts of the record proper. Yet it is undeniable that these may be filed by the manual act of the clerk without the marking of a written indorsement on any of them.

It follows that the bill of exceptions was filed in the legal sense of that term when it was delivered to the defendant clerk, or his deputy, at his office for filing in accordance with the terms of the court’s order providing for its filing in vacation and was received and deposited with the papers in that case, although the bill itself contained no written notation of the act and date of its filing. It necessarily results that no actionable negligence on the part of the defendant clerk was shown and that this suit on his official bond must fail.

The similar views of the Springfield Court of Appeals expressed in its decision of this case (177 Mo. App., supra) are approved, and the conflicting views of the St. Louis Court of Appeals in the case of Callier v. Railroad, 158 Mo. App. 249, are disapproved and the judgment of the circuit court of Mississippi County is reversed.

Blair, J., concurs; Graves, J., dissents in separate opinion, in which Woodson, J., joins. Cause transferred to Court in Banc.

PER CURIAM:

— The foregoing opinion of Bond, J., is adopted In Banc as the opinion of the court;

Faris, J., concurs in the result; Blair and Williams, JJ., concur; Graves, C. J., dissents in a separate opinion; Walker and Woodson, JJ., dissent, and concur with Graves, C. J.

GRAVES, C. J.

(dissenting) — I do not concur in the views of my learned brother Bond, in this ease. I concede the general rule that the .deposit of an instrument with an officer whose duty it is to file such instrument, is usully a filing of such instrument to all intents of the law. But the neglect to file such an instrument in due form by uch officer is a neglect of duty. The rule which says that the deposit thereof with such officer shall be deemed a filing is one of necessity, and is one which can only be in-yoked by the party depositing it for filing. By this I mean the párty depositing the instrument for filing, can say that it is no fault of his that it has not been filed, and he cannot be denied the benefits accruing from an actual filing. This is the rule for the reason that the negligence of the officer shall not be held to prejudice the rights of one who in good faith has done all that is required of him for a timely filing. But this rule is totally foreign to the case at bar. .Here we have the clerk himself invoking the rule, and asking that the bill of exceptions be considered as filed, although he has negligently failed to file it.

The doctrine announced by my brother is a dangerous one. The clerk could refuse to property file every bill of exceptions, but place them with the files, and thus defeat' all applicants, or at least force them to a hearing in the appellate court upon the record proper. Under the law and rules of court the record proper, upon appeal, must ■show the filing of a bill of exceptions, or that document is not before the appellate court for review. In the case at bar it appears that in the case of Callier v. Railroad, 158 Mo. App. 249, the clerk neither made a record entry showing the filing of a bill of exceptions, nor did he make in his office or on the bill of exceptions any written memorandum from which the circuit court could rightfully make a nunc pro tunc entry of such filing. It is this neglect of the clerk which' is the basis of this suit against him and his bondsmen. That he was grossly guilty of negligence in his office clearly appears. That such negligence precluded the railroad Trom a hearing clearly appears. Under such circumstances the clerk can’t invoke the rule that the deposit of the bill of exceptions was a filing. He can never invoke that rule to cover his own neglect or negligence. Such rule of necessity has no application to him. Such rule can only be invoked by one who would be injured by the neglect of the office. It cannot be invoked to excuse the negligence of the officer in a suit based on such negligence.

My brother and the Springfield Court of Appeals have misapplied the rule. Stated otherwise they have invoked a rule which has no application. On the record before ,it the St. Louis Court of Appeals in Callier v. Railroad, 158 Mo. App. 249, was right in holding that there was no bill of exceptions before them, and further right in holding that there was no written memoranda from which a nunc pro tunc entry could be made by the circuit court. I therefore dissent.

Walker and Woodson, JJ., concur in these views.


author: ROY, C. PER CURIAM:

text:
    THE STATE, Appellant, v. RUPERT SISSON and HOMER GRANGER.
    Division Two,
    February 17, 1917.
    1. FORGERY: Counterfeiting: Trading Stamps. Trading stamps having on them the words: “Eagle: Stamp of Value 10; Reg. in U. S. Pat. Off.” do not on their face purport to be the pecuniary obligation of anybody, and the making or uttering of them does not constitute counterfeiting or forgery under Sec. 4651, R. O. 1909.
    2. -: -: -: Pecuniary Obligation. If the trading stamps bearing the word “Eagle” do not purport to be the pecuniary obligation of any one and do not of themselves constitute a pecuniary obligation of some one, an information charging forgery cannot supply these necessary elements by charging that a private company is under agreement to pay two dollars a thousand for “Eagle Trading Sta’mps” when presented in a certain way.
    Appeal from the.St. Louis City Circuit Court — Ho». Daniel D. Fisher, Judge.
    Affirmed.

      Frank W. McAllister, Attorney-General, for the State.

      Clark & S’Renco for respondents.
   ROY, C.

— Defendants were charged by information with having in their possession and with uttering certain counterfeit and forged Eagle Trading Stamps., A demurrer to the information was sustained, and the State has appealed.

The first count of the information contains the following :

“That on or about April 28,1915, and for many years prior thereto, David May, Moses Schoenberg, Louis D. Schoenberg, Isaac H. Lesem and H. August, executor of the estate of Joseph E. Schoenberg, deceased, were co-partners, doing business under' the name and style of “Eagle Trading Stamp Company” and in the due and regular course and pursuance of such business, issued to merchants in the city of St. Louis and elsewhere, .printed instruments known as ‘Eagle Trading Stamps,” which were of the general tenor and effect as follows:

(Here are pasted four stamps in a row, all alike).

“That said merchants purchase said Eagle Trading Stamps from said Eagle Trading Stamp Company, and as an incentive and inducement to trade, issued said stamps to their customers in numbers proportionate to amounts of purchases by the respective customers.
“That said Eagle Trading Stamp Company promised, agreed and bound themselves to pay and for many years has paid, the sum of two dollars in cash to anyone who would present to said co-partnership one thousand of said Eagle Trading Stamps, pasted in a certain paper bodklet or pamphlet, which booklets or pamphlets were issued by said Eagle Trading Stamp Company and were distributed free to the public.
“That by virtue of the promises, said Eagle Trading Stamps, so executed and issued by said Eagle Trading Stamp Company, were instruments, being and purported to be the acts of said co-partners, doing business under the name and style of Eagle Trading Stamp Company, by which a pecuniary demand upon, and an obligation of said co-partners, was and purported to be created.
“That- Alfred J. Manuel, Rupert Sisson, Clifford White and Homer Granger, in the city of St. Louis, Missouri, on or about the 28th day of April, 1915, unlawfully and feloniously did have in their possession and custody, with felonious intent to cheat and defraud hy uttering and passing the same as true and genuine, certain false, forged and counterfeit Eagle Trading Stamps which said trading stamps were then and there instruments purporting to he the acts of said Eagle Trading Stamp Company, hy which a pecuniary demand upon, and a pecuniary obligation of, said Eagle Trading Stamp Company was created; which said false, forged and counterfeit trading stamps and instruments are of the following tenor, to-wit:

(Here are pasted four stamps in a row, all alike)

“They the said Alfred J. Manuel, Rupert Sisson, Clifford White and Homer Granger, then and there well knowing the said trading stamps to be falsely made, forged and counterfeited; against the peace and dignity of the State.”

The second count charges the uttering of those stamps.

All those stamps have on them the words and figures as follows:

Eagle
Stamp of value 10
Reg. in TJ. S. Pat. Off.
There are no words on those stamps which, in themselves, create a pecuniary obligation on the part of any one.

The information was evidently filed under section 4651, Revised Statutes 1909, which reads as follows: -

“Every person whoj with intent to injure or defraud, shall falsely make, alter, forge or counterfeit any instrument or writing, being or purporting to be the act of another, hy which any pecuniary demand or obligation shall he or purport to he transferred, created, increased, discharged or diminished, or by which any rights or property whatsoever shall be or purport to he transferred, conveyed, discharged, increased or in any manner -affected, the falsely making, altering, forging or counterfeiting of which is not hereinbefore declared to he a forgery in some other degree, shall, on conviction, he adjudged guilty of forgery in- the third degree. ’ ’

Those stamps do not on their face purport to be the pecuniary obligation of anybody. They do not of themselves constitute such pecuniary obligations of any person. The information seeks to supply such necessary element of the charge by the allegation that the Eagle Trading Stamp Company is under agreement to pay two dollars a thousand for those stamps when presented in a certain way. That obligation of the Eagle Trading Stamp Company does not appear on the face of the stamps.

1 Bishop’s New Criminal Law (8th Ed.), section 572, defines forgery at common law thus: “It is the false making or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability.”

So far as we are able to discover those stamps are not the subject of forgery, either at common law or under any statute of this State.

The judgment.is affirmed.

White, C., concurs.

PER CURIAM:

— The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.


author: BLAIR, J.

text:
    NORMAN’S LAND & MANUFACTURING COMPANY, Appellant, v. STEPHEN B. HUNTER and ALFRED L. HARTY.
    Division One,
    February 20, 1917.
    1. SHERIFF’S DEED: Unacknowledged: Sale by Purchaser: Relation. Tbe grantee of the purchaser at a tak sale who conveyed by a deed recorded before the sheriff had acknowledged his deed to him, took the title, as against a subsequent grantee of said purchaser with constructive notice. As to the purchaser at the tax sale, the sheriff’s deed, upon its subsequent acknowledgment, related back to the day of sale; and the purchaser’s deed to his first grantee took priority over' a subsequent deed made by him after his first deed and the sheriff’s deed had been recorded.

      2. -: Vendible Interest. Tbe purchaser at a sheriff’s sale acquires an interest which is vendible even prior to the acknowledgment of the sheriff’s deed; and a sale by him and the title which his grantee acquires cannot be affected by subsequent attempt of such purchaser to again convey the land to another grantee; and the vendible character of his interest is not affected by the fact that after he had parted with his right to demand a deed from the sheriff the sheriff acknowledged his deed, his own deed and the sheriff’s deed both being recorded before he attempted to convey to others, constructive notice being thereby given.
    Appeal from Mississippi Circuit Court — Hon. Frank Kelly, Judge.
    Affirmed.

      Ernest A. Green for appellant.
    The quitclaim deed made by Jones on October 1,1887, to Bradley and Dillon, prior to tbe time the sheriff’s deed to him had been acknowledged, was void and ineffectual to convey any title whatever to the defendants’ grantors; Accordingly, defendants have no title to the lands in controversy and judgment should have been rendered decreeing title in the plaintiff. 1 Cyc. 560; Coal Co. v. Bates, 146 Ky. 624; Chadwick v. Carson, 78 Ala. 116; Balkum v. Wood, 58 Ala. 642; 1 Corpus Juris., pp. 749, 813, 814; Ryan v. Carr, 46 Mo. 483; Allen v. Moss, 27 Mo. 354; Dunlap v. Henry, 76 Mo. 108; Adams v. Bueharian, 49 Mo. 64; Cabell v. Grubbs, 48 Mo. 353; Ford v. Unity Church Society, 120 Mo. 498.

      Russell & Deal and Wammack & Welborn for respondents.
    Plaintiff cites a number of cases, all of which simply hold that a sheriff’s deed, not acknowledged according to law, is void. This is the law as held in the cases cited. A sheriff’s deed never acknowledged 'as provided by law, is void, but that is not the point in this case. The point in this case is at what time a sheriff’s deed, properly acknowledged, takes effect, and upon this proposition our Supreme Court lias uniformly held that when a sheriff’s deed is properly acknowledged it relates back to the sale, and takes effect as of that date, as to the defendant in the execution and his privies, and as to strangers purchasing with notice, and vests the title in the execution purchaser from that time. Leach v. Cohen, 55 Mo. 451; Fleckenstein v. Baxter, 114 Mo. 493; Strain v. Murphy, ,49 -Mo. 337; Ozark Lbr. Co. v. Franks, 156 Mo. 673; Bush v. "White, 85 Mo. 339; Porter v. Mariner, 50 Mo. 368; Crowley v. Wallace, 12 Mo. 148; Boyd v. Ellis, 107 Mo. 401; Land & Lumber Co. v. Franks, 156 Mo. 689; Howard v. Brown, 197 Mo. 48; Griffin v. Franklin, 224 Mo. 683; Mason v. Perkins, 180 Mo. 107. Such a deed when properly executed is held to take effect as of the date of the sale under the doctrine of relation. This doctrine is that when several acts are necessary to consummate a conveyance, the conveyance when finally completed will be held to take effect as of the date of the first of the acts in the making of the conveyance. Block v. Morrison, 112 Mo. 356.
   BLAIR, J.

— On change of venue to Mississippi County, judgment went for defendants in a suit to quiet title to certain Stoddard County lands. This appeal followed. The undisputed facts are that the tract was sold under a tax judgment .on September 5, 1887. At this sale Ligón Jones bought. The sheriff’s deed to him was dated September 6, 1887, acknowledged March 10, and recorded March 12, 1888. In the meantime, October 1, 1887, Jones executed and delivered to Bradley and Dillon, defendants in the tax judgment under which he had bought, a quit-claim deed to the land. This was recorded the day of .delivery. It contained the usual' quit-claim recitals and the following: “The title hereby conveyed is that obtained by sheriff’s tax deed, dated September 6, 1887.” Respondents claim, through mesne conveyances, under Bradley and Dillon. June 8, 1906, Jones executed a warranty deed to Walter Phelan, under whom appellant claims. This deed was recorded September 7, 1907.

Appellant contends Jones’ quit-claim deed of October 1, 1887, conveyed nothing; that Jones had nothing to convey until the sheriff’s deed was acknowledged; that when that deed was acknowledged Jones’s power to convey first arose and the deed of June 8, 1906, passed title to Phelan.

I. Appellant relies upon decisions (Ryan v. Carr, 46 Mo. l. c. 486; Allen v. Moss, 27 Mo. l. c. 364; Dunlap v. Henry, 76 Mo. l. c. 108; Adams v. Buchanan, 49 Mo. 64; Cabell v. Grubbs, 48 Mo. 353 and texts which announce the rule that title does not pass by sheriff’s deed and it is ineffectual as an instrument until it is acknowledged. The cases cited involved the legal title and the rule was applied to deeds unacknowledged when offered in evidence.

Respondents rely upon the doctrine of relation. This doctrine is “that where there are divers acts concurrent to make a conveyance, estate or other thing, the original act shall be preferred, and to this the other acts shall have relation.” [Crowley v. Wallace, 12 Mo. l. c. 147.] In that case a sheriff’s deed acknowledged after suit brought was held admissible to show legal title in plaintiff from the date of the execution sale which occurred prior to the institution of the action. It was held the deed took effect, by relation, from the date of the sale and was admissible. The same rule has been frequently applied. [Porter v. Mariner, 50 Mo. l. c. 368; Boyd v. Ellis, 107 Mo. l. c. 401; Bush v. White, 85 Mo. l. c. 358; Mason v. Perkins, 180 Mo. l. c. 707.] This doctrine is applied as against the execution defendant and his privies and strangers who purchase with notice. [Land & Lumber Co. v. Franks, 156 Mo. l. c. 689.] It has been held that a recorded deed, executed by one who has no title but who afterward acquires title by recorded deed, lies outside the chain of title of those claiming under him by subsequent conveyance, and such first deed is not constructive notice to the purchaser in good faith (Ford v. Unity Church Society, 120 Mo. l. c. 514), but the rule is not applicable to this case. Appellant claims under Jones and his title depended upon the tax sale. Necessarily jt took with notice of that. [Fleckenstein v. Baxter, 114 Mo. l. c. 496.] As against Jones the sheriff’s deed, upon its acknowledgment in 1888, well may be held to have related to the date of the sale. After its acknowledgment he could not have disputed the title of Bradley and Dillon. Appellant claims under him and stands in his shoes with notice of the tax sale and acknowledged sheriff’s deed and of the applicable law, including, in this, case, the doctrine of relation. ' That this doctrine is ap-' plicable in circumstances like those in.this case is directly supported by what is said in Howard v. Brown, 197 Mo. l. c. 48, 49. It is suggested what was there said is obiter. The court both applied the doctrine and held Brown had not put himsélf in position to raise the question. Whether obiter or not it gives expression to the correct rule. The cases of Chadwick v. Carson, 78 Ala. 116; Balkum v. Wood, 58 Ala. 642, and Northern Coal & Coke Co. v. Bates, 146 Ky. 624, are cited, but contain nothing out of harmony with the above views.

II. Another ground which supports the judgment is that by purchasing at the sheriff’s sale Jones acquired an interest which was vendible even prior to the acknowledgment of the sheriff’s deed. Appellant’s authorities are chiefly those decided prior to the amendment of the statute relating to sheriff’s sales. That amendment was enacted in 1887 (Laws 1887, pp. 186, 187) and added to section 2400, Revised Statutes 1879, provisions which remain as then enacted (Sec. 2239, R. S. 1909) and which contain a conclusive implication that the purchaser at the sheriff’s sale takes an interest which he can sell or devise or which may descend to his heirs. Having taken such a right or interest, Jones sold it to Bradley and Dillon and their title and that of those who claim under them could not be affected by an attempt of Jones again to convey the property. The fact the sheriff’s deed was made to Jones after he had parted with his right to demand it does not affect the question. Phelan, grantee of Jones in the deed of June 8, 1906, and under whom appellant claims, had constructive notice of the tax sale, it being in his chain of title, which is appellant’s also. That included notice of the fact that the sale gave Jones a vendible right. Notice that he had such a right carried with it constructive notice of the deed of October 1, 1887.

The judgment is affirmed.

All concur.


author: GRAVES, J.

text:
    CHARLES C. PETERSON v. UNITED RAILWAYS COMPANY, Appellant.
    Division One,
    February 20, 1917.
    1. PRACTICE IN SUPREME COURT: Certification from Court of Appeals. A case certified from a Court of Appeals, upon certification that the majority opinion therein conflicts with certain cases of the Supreme Court, is for full review.
    2. NEGLIGENCE: Vigilant Watch Ordinance: Not in Abstract. Whether or not an instruction permits a recovery against a street railway company if the conductor of the car failed to keep a vigilant watch for vehicles on the, track, in violation of a city ordinance, and is for that reason erroneous, or whether or not the ordinance applies only to motormen, will not be decided, if the ordinance is not preserved in the printed abstract. Courts cannot take judicial notice of municipal ordinances, however great the municipality.
    3. -: Ringing Bell or Sounding Gong: Proximate Cause. Where both plaintiff and his driver saw and knew of the approaching street car when it was six hundred feet from the place where their automobile was stalled on the track, the failure to give notice of the approach of the car by sounding the gong or otherwise was not the proximate cause of plaintiff’s injury caused by the street car striking the automobile, and an instruction basing his right to recover upon such failure is error. The purpose of sounding the gong is to give notice of, the car’s approach, and if the injured party on the track has actual timely knowledge of its approach, without such sounding, failure to sound the gong cannot be the proximate cause of his injury.

      Appeal from St. Louis City Circuit Court. — Hon. George G. Hitchcock, Judge.
    Reversed and remanded.

      Boyle & Priest and T. E. Francis for appellant.
    (1) Plaintiff’s instruction number 1 is erroneous, because it permitted a recovery by plaintiff if tbe jury found that tbe conductor failed to keep a vigilant watch, as required by the so-called “Vigilant Watch Ordinance” of St. Louis, when, under the law, a recovery could be had only in the event the motorman failed to keep such lookout. Uebhardt v. Transit Co., 97 Mo. App. 373; Heinzle v. Railroad, 182 Mo. 528. (2) Plaintiff’s instruction number 1, which authorized the jury to find for plaintiff if they found that defendant’s agents in charge of the car “failed to ring the bell or gong on said ear or give other audible notice or warning of the approach of said car,” is erroneous, for the reason plaintiff testified that he was fully cognizant of the approach of the car, and, therefore, the failure to ring the bell or gong or give him other warning of its approach was not the proximate cause of the collision and could not properly be made a predicate of a recovery. Murray v. Transit Co., 176 Mo. 183; Haller v. St. Louis, 176 Mo. 606; Hutchinson v. Railroad, 195 Mo. 546; Heintz v. Transit Co., 115 Mo. App. 667; Heinzle v. Railroad, 182 Mo. 525; Mockowik v. Railroad, 196 Mo. 550; Young v. Railroad, 227' Mo. 307.

      Willis H. Clark for respondent.
    (1) The total inadequacy of the purported abstract herein precludes a determination of the first of the two points attempted to be raised in the brief for appellant. Peterson v. United Railways, 183 Mo. App. 715. (2) The failure to give any signal of the approach and passage of the car, under the circumstances disclosed in evidence, was a factor of negligence on the part of defendant which plaintiff was entitled to have submitted to the jury for their decision as to the cause of the accident. McKinzie v. United Railways, 216 Mo. 1; Kinler v. Railway Co., 216 Mo. 145; Dahmer v. Railway Co., 136 Mo. App. 443; Bilhimer v. Railway Co., 137 Mo. App. 675; Batsch v. Railway Co., 143 Mo. App. 58; Parrish v. Railway Co., 140 Mo. App. 700; Williams v. Railway Co., 149 Mo. App. 489; Ellis v. Railway Co., 234 Mo. 657; Legg v. Railway Co., 154 Mo. App. 290; Smith v. Railway Co., 169 Mo. App. 610; Clover v. Railroad, 149 Mo. App. 413; Cytron v. Transit Co., 205 Mo. 692. (2) In the absence of a showing that specific objections were made to the instructions in the court below as to the particulars here complained of the judgment should he affirmed. Kirby v. Lower, 139 Mo. App. 677; Ilgenfritz v. Railroad, 155 S. W. 854.
   GRAVES, J.

— This case reaches us from the . St. •Louis Court of Appeals upon due certification to the effect that the majority opinion therein conflicts- with the cases of this court, and other appellate decisions. The case is therefore here for full review. The petition is thus summarized in the abstract of record:

“Plaintiff’s petition alleged, in substance, that defendant is and was on May 15, 1910, a' corporation engaged in the business of operating a street railway system in the city of St. Louis; that on said date plaintiff was a passenger in an automobile which became stalled on defendant’s southwestward-bound tract on Gravois Avenue in said city; that while said automobile was so stalled upon said track, one of defendant’s cars, operated upon said track and in charge of a motorman and conductor, collided with said automobile, thereby inflicting certain injuries upon plaintiff, for which he prayed judgment in the sum of $25,000. ”

The assignments of negligence set forth in the petition are as follows:

“First: The employees and servants of defendant in charge of said car carelessly and negligently failed and omitted to observe and comply with the provisions of said section 1865, in that they caused and permitted said car, immediately prior and down to the time of such collision, to be propelled along and upon said street railway track on said Gravois Avenue, within said outer district, for a distance of more than three hundred feet and to the point of such collision, at a speed greater than the rate of fifteen miles per hour and at a higher and dangerous rate of speed, to-wit, twenty-five miles per hour, whereby plaintiff, being a passenger in said automobile vehicle so upon said street and track, was placed in a situation of great and extreme danger and was prevented'from removing therefrom in time to avoid such injury and damage by any act on Ms part.
“Second: Said employees and servants of defendant, at such time and place and while said ear was approaching the point of such collision, carelessly and negligenty failed and omitted to observe and comply with the provisions of said section 1864, in that they failed to keep a vigilant watch for vehicles and persons on foot on or moving towards said track, said vehicle in which plaintiff was so a passenger being then and there upon said track and in plain view of said employees and servants of defendant, and by the keeping of such vigilant watch could and would have been observed by such employees and servants in time to have enabled them to prevent and avoid such collision.
“Third: Said employees and servants of defendant at such time and when said car was within about sixty feet of said automobile vehicle discovered' the same upon said track and in danger of being struck by said car, and said employees and servants then and there carelessly and negligently failed and omitted to observe and comply with the provisions.of said section 1864, in that upon first so discovering the appearance, of such danger to said vehicle and plaintiff as a passenger therein they failed and omitted to stop said car in the shortest time and space possible, whereas said car could then and there have been stopped or greatly reduced in speed before striking said vehicle and such danger could thus have been obviated or greatly reduced.
“Fourth: Said employees and servants of defendant immediately prior to and down to the time of such collision carelessly and negligently caused and permitted said car to be propelled upon said street railway track and along said Gravois Avenue for a distance of more than three hundred feet and to such point of such collision at a high and dangerous rate of speed, to-wit, twenty-five miles per hour, and carelessly and negligently failed and omitted to ring the bell or gong with which said car was provided or to give an other audible notice or warning of the approach or passage of said car, whereas the ringing of such bell or gong or giving of such other audible notice or warning while said ear was traversing such distance would have enabled plaintiff to obviate or greatly lessen the danger to himself from such approach and passage of said car at such high and dangerous rate of speed.”

Answer was a general denial and a plea of contributory negligence. Reply, a general denial. Judgment nisi was for plaintiff in sum of $6000, and from such judgment this appeal was taken.

In the Court of Appeals (and the case is here upon the same briefs and record) the battle raged as to the propriety of instruction number one given for plaintiff. This instruction had best be set out, although only two clauses therein are challenged. It reads:

“If you believe and find from the evidence that on May 15, 1910, defendant was and since has been a corporation operating as a common carrier of passengers a certain line of street railways in this city, having tracks extended along and over Gravois Avenue at and near its intersection with Blow Street, said street and avenue being public highways and said point of intersection being within the outer district specified in section 1865 of ordinance 22902 of the city of St. Louis read in evidence; that on said day, about five o’clock in the afternoon, plaintff was a passenger in an automobile proceeding northeastwardly along said Gravois Avenue; that at such time the engine of said automobile ceased to work and said automobile came to stand upon the southwestward-bound track of said street railway at or near such point of intersection and in said outer district; that then and there a certain car of defendant, used and operated by defendant upon said street railway, through its motorman and conductor in charge thereof, came southwestwardly along said track and ran against and upon said automobile with such force and violence and plaintiff was then and there thrown from said automobile and received injuries to his person and damages to his property as referred to in the evidence:
“And if you further believe and find from the evidence that such collision and injury and damage was caused by and directly due to carelessness and negligence and want of care and caution on the. part of defendant (as defined in the other instructions herein), through its servants, agents or employees in charge of said car, in either of' the following particulars :
“First: In failing and omitting to observe and comply with section 1865 of said ordinance 22902, read in evidence, by causing and permitting said car, immediately prior and down to the time of such collision, to be propelled along, and upon, said southwestward-bound track, within said outer district, for a distance approximating three hundred feet and to the point of such collision, at a speed greater than the rate of fifteen miles per hour and at a high and dangerous rate of speed;
“Second: In failing and omitting to observe and comply with section 1864 of said ordinance 22902, read in evidence, by failing and omitting to keep a vigilant watch for vehicles and persons on foot on or moving towards said track while said car was approaching the point of such collision;
“Third: In failing and omitting to observe and comply with section 1864 of said ordinance 22902, read in evidence-, by failing and omitting to stop said car in the shortest time and space possible upon discovering, when said car was within about sixty feet of said automobile, that said automobile was upon said track and in danger of being struck by said car;
“Fourth: In failing and omitting to ring the bell or gong with which said car was provided or to give any other audible notice or warning of the approach of said car, while said car was propelled upon said track about three hundred feet to the point of such collision at a high and dangerous rate of speed;
“And if you further believe and find from the evidence that there was no carelessness or negligence on the part of plaintiff which caused or directly contributed to cause the injuries and damages referred to, then your verdict should be for the plaintiff.”

The second and fourth clauses, supra, are the ones challenged, the one relating to the “Vigilant-Watch” ordinance, and the other to the failure to sound the gong. The material facts can best be stated in connection with the points made.

I. The abstract of record does not set out the Vigilant Watch ordinance, nor the substance thereof. Prom the abstract of the pleadings and the course of the trial it is clear that it was duly pleaded and proven, but we are not enlightened as to its contents by exceptions. The point made by appellant, as against instruction numbered one, in so far as this ordinance is concerned, is that the instruction would permit a recovery if the conductor of the car failed to keep a vigilant watch for persons upon the track, whereas the ordinance only applied to the motorman,' or man actually and physically running the car. We find full authority, for this complaint in Gebhardt v. St. Louis Transit Co., 97 Mo. App. l. c. 383, where one of the grounds of negligence was the 'violation of the then “vigilant watch” ordinance of the city, and in which case an instruction was condemned and held reversible error because it included both the conductor and motorman. The court through Bland, P. J., said:

“The third instruction given for the plaintiff told the jury that it was the duty of both the motorman and conductor to keep a vigilant lookout, etc. This was palpable error. No such duty is required of the conductor. His duties are such as to call him to the rear platform and interior of the car and to give his attention to passengers on the car and to those alighting from and entering the car by way of the rear platform, and to give signals for starting and stopping the ear. [Holwerson v. Railroad, 157 Mo. 216.]”

But in the instant case we are precluded from passing upon this contention of respondent, and in oral argument here, learned counsel did- not insist upon it. The record before us does not give the ordinance. We cannot take judicial cognizance of municipal ordinances, however great the municipality. Such ordinances must be pleaded, and if an appellant wants to assert error in an instruction predicated upon such ordinance, it is clearly his duty to enlighten the court by printing the ordinance or its substance, in the abstract of record. In the absence of such ordinance, we will presume the right action of the court in giving the instruction based thereon. This contention of appellant falls out of the case by reason of the abstract herein.

II. The second contention is here for review. The record is complete for its presentation and determination. Upon the part of the plaintiff the evidence shows that plaintiff was in the front seat of an automobile then operated by one Westermayer; that the automobile ran upon the street-railway track, and the engine ceasing to work, the automobile stopped upon the tracks; that he saw an approaching street car when at a distance of about 600 feet from the automobile; that it was running rapidly (20 to 25 miles per hour) on a down grade; that he saw the car and its movements up until about the time it struck the automobile; that the car was coming so fast he did not know what to do. To use his own language:

“I didn’t know what to do; to take a chance of jumping out of the car, or what to do; but the car was coming so fast that I didn’t get a chance. It don’t take a car long to get to you going at that rate, and I didn’t have much time to think. ’ ’

Defendant’s theory of the case, as shown by its evidence, was that the automobile was running down the track toward.the street ear, but got off of the track into a place of safety, and then suddenly whirled back on the track in front of the street car, when the street car was only 35 feet away, and .could not be stopped.

Appellant’s contention is, that inasmuch as the plaintiff and the party driving the automobile saw the approaching street car and its rapid rate of speed, the failure to give warning by bell or gong was not a proximate cause of the injury, and the question should not have been submitted to the jury.

The instruction authorized a verdict for plaintiff if the jury believed that defendant’s servants were negligent:

“In failing and omitting to ring the bell or gong with which said car was provided or to give any other audible notice or warning of the approach of said car while said car was propelled' upon said track about three hundred feet to the point of such collision át a high and dangerous rate of speed.”

In view of the fact that both plaintiff and the. driver saw and knew of the approaching car when 600 feet away, the failure to give notice of the approach of the car by sounding the gong or otherwise was not a proximate cause of the injury, and should not have been made a predicate of a recovery. The purpose of sounding a gong or ringing a bell is to give notice of the approaching car. If the party has this notice, without the sounding of the gong or ringing of a bell, we have universally declared that the failure to sound gong or ring bell is not the proximate cause of that injury, and should not be made the predicate for a recovery. Under such circumstances the sounding of a gong or ringing of a bell could not impart more notice than the party already had. If one, at a crossing, sees a rapidly approaching train, no amount of whistling or bell ringing will give him more notice than that which his eyes have brought home to him. Indeed it would tend to confuse rather than help such a person. But be this as it may be, it is clear that the submission of tbis ground of negligence to tbe jury in this case was error, for wbicb tbe judgment must be reversed and tbe cause remanded. [Murray v. Transit Co., 176 Mo. 183; Hutchinson v. Railroad, 195 Mo. 546; Heintz v. Transit Co., 115 Mo. App. l. c. 670; Mockowik v. Railroad, 196 Mo. 550; Young v. Railroad, 227 Mo. 307.]

Let the judgment be reversed and the cause remanded.

All concur.


author: BROWN, C. PER CURIAM.

text:
    CARTHAGE SPECIAL ROAD DISTRICT OF JASPER COUNTY, Appellant, v. J. C. ROSS et al.
    Division One,
    February 20, 1917.
    1. PUBLIC ROAD FUND: Devoted to Other Uses. Section 10481, Revised Statutes 1909, in declaring that the tax of not more than twenty cents authorized by it to be credited to the road district from which said tax is collected shall constitute the road fund of the several road districts of the county, forbids the county court to devote the fund to other uses.
    2. -: Discretion of County Court. The county court has no discretion as to the levying of at least ten cents on the hundred dollars directed by the amendment of 1913 to section 10481, Re- . vised Statutes 1909; its duty to levy and appropriate at least that much to special road districts is compulsory, and'it can divert the tax to no other purpose. Its discretion under that section and amendment pertains only to the levy of an additional tax of "ten cents on the hundred dollars’ valuation'.
    3. -: Meaning of Statutes. The theory of the statutes (Secs. 10481 and 10483, R. S. 1909) is: (1) that the bridges and roads are to be first taken care of, so far as that duty is developed upon the' ' districts, by the constitutional levy for county purposes, to the extent at least of ten cents on the hundred dollars’ valuation; (2) if that amount is not sufficient for such purpose the county court may raise it to twenty cents; and (3) in its discretion, it may levy the whole or any part of the twenty-five cent special levy authorized by the constitutional amendment of 1908, to be expended in such manner and through such agencies as are charged by law with the establishment, construction and maintenance of roads and bridges.

      4. -: Transfer to Other Funds: Modified by Road Laws. Section 3786, Revised Statutes 1909, declaring that “whenever there is a balance in the county treasury to the credit of any special fund, which is no longer needed for the purposes for which it was raised, the county court may, by order of record, direct that said balance be transferred to the credit of the general revenue fund of the county, or to such other fund as may, in their judgment, be in need of such balance,” is still live law as to all the revenue of the county remaining within the control of the county court; but the road fund has by later enactments been removed from the court’s control and entrusted to other agents,' to be expended by them for a definite purpose.
    5. - -: Diverted to Other Funds. Revenue for other county purposes cannot be increased at the expense of the roads. The county court after having made a levy of fifty cents on the hundred dollars for county purposes, the maximum tax it is permitted by the Constitution to levy for those purposes, cannot divert ten cents on the hundred dollars of it to other county purposes, but so much of the fifty cents as is collected from property within a special road district as is levied for road purposes must be' credited to the treasurer or commissioners of such district.
    6. -: Discretionary Powers of County Court. The Legislature has no power to compel the county court to levy the twenty-five-cent tax on the hundred dollars authorized by the constitutional amendment of 1908, but if the tax is levied the county court can apply it to road and bridge purposes, but to no others. But the county court is compelled to levy at least ten cents on the hundred dollars under See. 10481, R. S. 1909, for road purposes, and that much at least of the general revenue of the county it must apply to the road districts from which the tax arises, to be spent, not by it, but by the agencies which the statute designates.
    Appeal from Jasper Circuit Court. — Hon. David E. Blair, Judge.
    Reversed and remanded.

      Gray & Gray for appellant.

      McReynolds & Halliburton and S. W. Bates for respondents.
   BROWN, C.

— The following is the statement of facts made by appellant in its brief and adopted by the respondent;

“The city of Carthage and contiguous territory in Jasper County, Missouri, was, under the authority of sections 10576-10586? Revised Statutes 1909, as amended in 1911, organized as a body corporate to be thereafter designated as the “Carthage Special Road District of Jasper County.’
“This suit was brought in the circuit court of Jasper County by the road district as plaintiff against Jasper County and the judges of the county court to restrain the defendants from transferring the funds which the court had set apart, under the provisions of section 11423, Revised Statutes 1909, for road and bridge purposes, and the sole question is whether the road district is entitled to any part of the funds levied and apportioned under said section.
“Acting under the provisions of said section, the county court of Jasper County on the 5th days of May, 1913, after having levied a tax of fifty cents on the one hundred dollars’ assessed valuation for county purposes, made the following order:
“Ordered by the court that ‘County Revenue Fund’ be subdivided and apportioned, as follows:
“All in accordance with the law.’ Same covering taxes for the year 1913.
“$29,500.00 or 20 per cent for Contingent Fund.
“$36;875.00 or 25 per cent for Pauper Fund.
“$36,875.00 or 25 per cent for Salary Fund.
“$29,500.00 or 20 per cent for Road and Bridge Fund.
“$14,750.00 or 10 per cent for Grand and Petit Jury, Judges and Clerks of Election Fund.
“The $29,500 so apportioned to the Road and Bridge Fund was not received by the county until the collector made his settlement ■ in January, 1914, and the county court used no part of said funds on the roads of the county for the year 1913, because the same were not on hand, but as soon as the same were received, concluded not to do any road work, and treated the whole funds levied for road purposes as a surplus, no longer required for road purposes, and proposed to turn them over to the county treasurer to pay other current expenses of the county for 1913.
“The records show that the road commissioners of the plaintiff in the year 1913, contemplating this money would be collected and paid over to them for road purposes in the district, constructed roads and bridges and made demands in writing on the county court for the funds, but their requests were first refused because the funds were not on hand, and then when the funds were received, refused altogether, claiming that the funds were a surplus fund no longer needed for the purpose for which they were levied and collected, and the court proposed to transfer them to pay other current expenses of-the county.
“The answer admitted making the order above set forth, and also that the county court proposed to apportion as a surplus the $29,500 to the payment of current expenses, on account of there being a deficit in the Pauper Fund, the Jury Fund and the Incidental Fund in the county.
“The answer also admitted that a written demand had been made to the court by the plaintiff for the funds, and that the court had refused to pay any part' of the same.
“In addition to the pleadings there was an agreed statement of facts filed by which it was admitted that no part of the funds had been paid to plaintiff or its commissioners; that no part of them had been paid out by the county court; that the county court h?id drawn no warrants thereon, and that the plaintiff, by its commissioners,-had made a written demand on the court for its part of said funds, and at the time said demand was made, there were outstanding obligations of the plaintiff for road work performed by plaintiff in its said district and contracted since the making of the order of May, 1913, and prior to January 1, 1914.
“The court dismissed the plaintiff’s bill and it appealed to this court, and, as above stated, the only question is: What shall be done .with the funds that were levied and apportioned for road purposes under the order of the court on May 5, 1913?”

I. Our road laws remind us of the famous comment of Peter on the epistles of his Beloved Brother Paul: “In which are some things hard to he understood.” We have been compelled to approach them frequently during few years, and do so with the feeling that we are taking up a bundle of plugs, whittled to suit well enough the local uses that suggested them, but far too' small for the apertures into which we are called upon to fit them. In the attempt to do so it will be of service to consider the broad foundation upon which they rest. The entire highway system is a unit. The legislative problem is to provide money to construct, improve and maintain these facilities in such a way as to distribute the burden approximately in proportion to the benefit received by each locality, as well as by each taxpayer. It is evident that this problem is not well solved by a system of little units like our road districts, for it is frequently the case that the most expensive roads must lie over the roughest, most unproductive and least valuable lands.

II. This suit is a conflict between the county and the plaintiff road district as to which of them is entitled to a fund raised by taxation of the property in the plaintiff district. It is a part of the levy of fifty cents on the hundred dollars valuation for county purposes authorized and limited by section 11 of article 10 of the Constitution, and levied as a road tax in pursuance of section 10481 of the Revised Statutes of 1909, as amended in 1913. Section 10481 was, as originally enacted, as follows:

" The county court in the several counties' of this State, at the May term thereof in each year, shall levy upon all real and personal property made taxable by law, outside of incorporated cities, towns and villages, a tax of not more than twenty cents on the one hundred dollars’ valuation as a road tax, which levy shall be collected and paid by the collector into the county treasury as other revenue, and the county treasurer shall place the same to the credit of the road district from which said tax was collected and shall pay the same to.the overseer of said district on the warrants of the county court. The money derived from such road tax shall be expended by the respective road overseers in purchasing necessary tools ■with which to work the roads in their districts, in purchasing material to build or repair bridges and culverts, and for such other expenditures as may be necessary to keep the roads in their districts in good order: Provided, that the construction of all bridges and culverts shall be under the direction or supervision of the county highway engineer.”

Included in the same act was section 10482, passed in pursuance of the constitutional amendment of 1908 (included in article 10 as section 22) authorizing the levy of an additional tax of twenty-five cents for road and bridge purposes. The next section of the same act (Sec. 10483, R. S. 1909) is as follows:

“All moneys collected under the levy authorized by section 10481, and paid into the county treasury, shall constitute the road fund of the several road districts, and shall be disbursed only by authority of the county court as . provided by law, and no part thereof shall be used to pay costs and damages in opening new roads.”

We are thus enabled to say with certainty that these three sections, together with sections 11 and 22 of article 10 of the Constitution on which they rested, were before the Legislature at the same time, and were enacted as a single plan to raise money for all purposes connected with roads and bridges; and that whatever we may think of their propriety, we must defer to the legislative will and give effect to all their provisions.

We have nothing to do in this case with any other fund than that levied under section 10481.

Up to this point we are impressed with the care and precision with which the Legislature hedged about the fund appropriated for roads and bridges out of the tax levied under the Constitution for “county purposes.” It was not only declared in the section which authorized its levy that it be placed to the credit of the road district from which it was collected and paid to the overseer of such district on warrants of the county court and expended by the overseer, but also declared that it should constitute the road fund of the several road districts. Tn these provisions we can see no evidence of any intention that the county court might devote it at will to other uses.

III. At the legislative session of 1913 a doubt seems to have arisen as to whether the county court might not, in its discretion, refuse to appropriate any portion of the general revenue for county purposes as a road-and-bridge fund, and for that purpose depend entirely on the additional levy authorized by the constitutional amendment of 1908; and section 10481 was so amended as to require the inclusion of a road tax of at least ten cents on the one hundred dollars’ valuation in the levy for county purposes, and provided that the amount thereof collected upon property within any special road district should be paid into the county treasury as other revenue, and that the county treasurer should place the same to the credit of the special road district from which it was collected and “pay the same to the commissioner or treasurer of such special road district on warrants of the county court.” [Laws 1913, p. 668.] It is under this provision of section 10481 as so amended by the Act of 1913 that the plaintiff is now claiming. It will be seen that this tax is appropriated by the same statute which not only authorized, but imperatively required, its levy for the very purpose from which the county court is now seeking to divert it. The Act of 1913 took effect on March 25th and before the May term at which this levy and distribution was made. Instead of being, like the levy of twenty-five cents authorized under the constitutional amendment' of -1908, discretionary, and for general road and bridge purposes, it was compulsory, and might, in the discretion reserved to the county court by the constitutional amendment of 1908, constitute the only road-and-bridge fund. These provisions completely cover the following statement in the respondents’ brief: “It is Conceded in the case at bar that if the county had appropriated only a meagre amount to the road-and-bridge fund of the revenues collected for county expenditures, then this special road district would have no claim on it. It is not claimed but that the county court had ample authority to subdivide the fund for county revenue purposes under section 11423 as it thought best.” The county court had no right to appropriate only a “meagre amount” of the general county revenue for the road-and-bridge fund. It was hound by the compulsion of the .statute to levy and appropriate not less than ten cents, and would have violated that obligation had it appropriated less. It is, to put it mildly, non sequitur that it could have avoided it by levying the ten cents for the building of bridges and repairing of roads, and then transferring it to the pauper, jury and incidental funds. If the road fund is to be skimped, it must be done through the reduction or omission of the discretionary tax authorized by the constitutional amendment of 1908. The theory of the statute (sections 10481, 10482, 10483) is so clearly expressed that it may he easily read from horseback: (1) that the bridges and roads are to be first taken care of, so far as that duty is devolved upon the districts, by the constitutional levy for county purposes to the extent of at least ten cents on the hundred dollars; (2) 'if that amount is not sufficient for such purpose the county court may raise it to twenty cents; and (3) in its discretion, it may levy the whole or any part of the twenty-five-cent special levy authorized by the constitutional amendment, to he expended in such manner and through such agencies as are charged by law with the establishment, construction and maintenance of roads and bridges. In our opinion the Legislature showed good judgment in assuming that at least one dollar on each thousand of assessed valuation of the rural property of the State can be profitably expended in the construction, improvement and maintenance of our country roads and bridges, so far as their expense has been charged upon the districts.

IV. The respondent cites section 3786, Revised Statutes 1909, in support of its contention that the county court had the power to transfer this fund to other uses than those connected with roads and bridges. It provides that: Whenever there is a' balance in any county treasury in this State to the credit of any special fund, which is no longer needed for the purpose for which it was raised, the county may, by order of record, direct that said balance be transferred to the credit of the general revenue fund of the county, or to such other fund as may, in their judgment, be in need of such balance.” The succeeding section limits this right of transfer to “balances of funds of which the objects of their creation are and have been fully satisfied. ”

These sections have stood upon our statute books since their enactment in 1897, without change, except as modified by subsequent legislation charging the road districts, agencies of the State expressly created for such purposes, with control and expenditure of this fund. In so far as these laws are inconsistent with the provisions we have mentioned they must yield to the last expression of the legislative will, which, as we have already shown, is definite and unmistakable. These sections are still living laws in their application to all revenue of the county remaining within the control of the county court. This particular fund has plainly been removed from its control and entrusted to other hands to be expended by other agents, while leaving ample resources at its command for application to any road and bridge purpose which may still remain within the range of its duties. These old provisions cannot stand with these definite and inconsistent expressions of a later legislative policy and must therefore yield to them.

V. We are cited by the respondents to the cases of Holloway to use v. Howell County, 240 Mo. 601, and Decker v. Diemer, 229 Mo. 296, to sustain the right of the county to transfer this fund. The first of these cases was a suit for accounting to ascertain the balance in the county treasury of road funds collected by the county upon the property of the special road district for several years prior to 1909 and long before the bringing of the suit, for which no demand had been made. The case went off on that ground, and is consequently no authority in this case. The Decker case was a suit for road taxes levied by the county court in 1905, 1906, 1907 and 1908 and appropriated to the road-and-bridge fund. The suit was brought May 11, 1909,' more than three months before the act of 1909, upon which, with its amendment of 1913, the right to' recover in this suit is principally founded. Neither the constitutional amendment of 1908 nor the acts passed in pursuance of it were involved. This case is one of first intention and' the controlling questions are now before us for the first time.

VI. In considering these questions our attention has been arrested by the general plan evident in recent legislation for raising and expending funds for road and bridge purposes in connection with sections 11 and 22 of article 10 of the State Constitution. The limit placed upon the levy for “county purposes,” including this fund, has been acquiesced in as sufficient and salutary for all such purposes until the development of the State developed a growing necessity for additional expenditure upon its highways. This resulted in the amendment of 1908 embodied in section 22, authorizing an “additional” levy of twenty-five cents on the taxable property of the State to be used for these and no other purposes whatever. In other words, it was found desirable to increase the amount to be raised by taxation for this purpose without increasing the amount to be raised for other county purposes, which had been found to be entirely satisfactory. The amendment was adopted for this purpose alone, and legislation was immediately begun to carry it into effect in accordance with the spirit of economy which it exhibited. The amendment had, by affirmative words too plain to be mistaken, made the new power discretionary as vested in the county courts and township boards. So that the Legislature was without power to direct them to make the additional levy or any part of it. It could only permit it. Under these conditions sections 10481 and 10482, Revised Statutes 1909, were enacted. The first of these omitted the minimum requirement of five cents as it had existed (R. S. 1899, sec. 9436), but reserved the maximum limitation of twenty cents, and required that whatever the levy should be, the proceeds should be paid to the •'overseers of the several road districts which produced them. At its session of 1913 the Legislature repented that it forgot or otherwise omitted to insert a minimum requirement in this section, so that the taxation for other county purposes could not be increased at the expense of the roads, and further amended it by enacting that the levy for road taxes should be not less than ten' cents, and inserted a proviso that the proceeds of the tax in special districts should be paid to the commissioners or treasurer.

The Act of 1909 also contained a provision for the levy of the additional tax provided by the constitutional amendment of 1908 in the very words of that amendment, and without any provision for the payment of any part of the money so produced to the road districts. This omission exhibits a plain intent to distinguish between the two funds as to the agencies to which they should be entrusted for expenditure.

It was a sensible' scheme. . Taking as a basis the fifty-cent levy authorized by section 11, article 10, of the Constitution, in Jasper County, it limited the general levy for county purposes other than roads and’ bridges to forty cents, provided a road fund of at least ten cents to be expended by the districts, and provided the means to be expended by the county in the building of bridges, location and opening of roads and other purposes charged upon the county at large. This seems to be the theory upon which the fund raised upon the general levy for county purposes from special districts was apportioned by tbe proviso added to section 10481 by tbe amendment of 1913 as it had been to the other districts by the same section as originally enacted, while it was not applied to the next succeeding section, intending to put into effect the amendment of 1908. It amounted to a declaration by the Legislature that the words “road tax” as used in section 10801, Revised Statutes 1909, continued to have the same meaning and effect which they had standing in the same place in the same section when enacted in 1895. This is the opinion we expressed in State ex rel. v. Everett, 245 Mo. 706, and in which we are confirmed upon re-examination.

It follows that the judgment of the circuit court must be and is reversed and the cause remanded to the trial court for the entry of judgment for the plaintiff in accordance with the views we have herein expressed,

Railey, C., concurs.

PER CURIAM.

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

All of the judges concur.