source: Caselaw Access Project

author: REEYES, C.

license: Public Domain

text:
    THE STATE ex inf. HENRY J. WEST, Prosecuting Attorney of Linn County, ex rel. ELWOOD THUDIUM et al., Appellants, v. CONSOLIDATED SCHOOL DISTRICT, WILLIAM T. McGHEE et al.
    Division Two,
    October 11, 1921.
    1. APPELLATE JURISDICTION: Title to Office: School Director. The office of school director is an office in this state, and under the Constitution (Sec. 12, Art. 6) the Supreme Court has exclusive jurisdiction of an appeal from a judgment of the circuit court in quo warranto brought to oust school directors.
    2. CONSOLIDATED SCHOOL DISTRICT: Information in Quo War-ranto: Remoteness from School House. In a quo warranto brought against a consolidated school district and its officers, it is not error, upon motion, to strike from the information an allegation that the residences of relators are too remote from the place where schools are to be maintained and are separated therefrom by a creek which is sometimes impassable. . The legal voters within the boundaries marked out by the county superintendent have the absolute right, upon proper notice, to accept or reject such boundaries.
    3. -: -■ — : Praud and Deceit: Coercion of Superintendent. In a quo warranto brought, against a consolidated school district and its officers, it is not error, upon motion, to strike from the information allegations that the county superintendent, in answering the petition for the formation of the district, was misled by the defendants and was th'e victim of fraud and deceit, and that he was coerced and intimidated by them and compelled, against his will, to call to order the meeting of the legal voters within the proposed boundaries, assembled, upon notice, to pass upon the question of forming such distriit and electing directors therefor, there being no allegation that the voters who voted upon said questions were either deceived or misled: First, because the county superintendent, in marking out the boundaries and in calling the meeting to order, was exercising a ministerial duty, and is not a party to the suit; second, even if he were a party, he could not have been deceived, and it is of no consequence what representations might have been made to him, since the law makes it his duty to visit the community and locate the boundaries according to his best judg- , ment, and he could have seen the geographical situation and physical conditions of the proposed district as well as others, and all the facts were or should have been just as apparent to him as to his alleged deceivers, and the right to accept or reject his judgment is by the statute left with the legal voters; and, third, he could not have been coerced or intimidated into calling the meeting to order, because the statute makes it his duty, when the voters are assembled, upon proper notice, to call the meeting to order.
    4. -: Amended Certificate. An • amended certificate, filed with the county clerk by the chairman and secretary of the meeting of the legal voters at' which they voted to form a consolidated school district according to the plats and notices, made for the purpose of making the certificate conform to the facts and in correction of an incorrect certificate previously filed by them, is properly admitted in evidence in a quo warranto proceeding brought to dissolve the district. The district should not suffer because of an error in failing to include all the lands made by the chairman and secretary in the first certificate.
    Appeal from Linn Circuit Court. — Hon. Fred Lamb, Judge.
    Affirmed.

      C. C. Bigger and Bresnehen & Burns for appellant.
    (1) The court erred in sustaining defendant’s motion to strike part of plaintiff’s petition. Laws 1917, sec. 3, 509. Said Section 3 provides that upon receipt of the petition by twenty-five qualified voters, the superintendent shall visit the community and investigate the needs of the community and determine the exact boundaries of the proposed consolidated district. In determining these boundaries, he shall so locate the boundary lines as will in his judgment form the best possible consolidated district, having due regard to the welfare of the adjoining districts. The petition charges that the superintendent was prevented frpm doing this by the fraud of the defendants; that the road between District 24 and Shelby, on a direct route, was concealed from him by the. defendants, and that they took him in an indirect way to District 24, with the fraudulent intent to mislead Mm. (2) The court erred in sustaining the motion to strike ont part of plaintiff’s petition, alleging that, when the superintendent discovered the mistake in -outlining the proposed consolidated district and attempted to correct the mistake and provide for two other districts, he was intimidated, coerced and threatened, and prevented from correcting the mistake. State ex rel. Hilbert v. G-laves, 268 Mo. 100. (3) Fraud on the part of the defendants prevented the citizens involved in the proposed consolidated district from having the benefit of the free will and judgment of the superintendent, and thereby vitiated the entire proceedings. State ex rel. Hilbert v. Glaves, 268 Mo. 100; State ex rel. District 52 v. Wright, 270 Mo. 376.

      E. B. Fields for respondents.
    (1) After the county superintendent had ordered the election for the consolidated school district, had posted notices calling the election, he could not then call the election off by - ordering persons in the proposed district., to take down the notices and circulate a new petition. State ex rel. v. Gill, 190 Mo. 79. (2) As long as the Legislature violates lio constitutional restrictions upon its acts, the wisdom of any act is not subject to review by the court; nor can the courts consider the policy, of an act authorizing the consolidation of a school district when applied to sparsely settled communities, or when applied to a single district already organized which contains a large part of the voting population in the community or territory affected by the proposed consolidation. State ex inf. v. Jones, 266 Mo. 191. (3) In fixing the boundary lines in such a way as in the judgment of the county- superintendent will form the best consolidated districts the statutes leave both the measure of the judgment and the quantum of due regard of the welfare of the adjoining district to a sound official discretion; and the sole way of correcting his exercise of a bhd judgment and discretion is the rejection by the voters to the proposition to organize the consolidated district. State ex rel. v. "Wright, 270 Mo. 376. (4) Alleged fraudulent statements made to voters by the county superintendent before the consolidated district was formed, that their taxes would not be increased by its formation more than fifteen or twenty cents on the hundred dollars ’ valuation has no place in a quo warranto brought against the directors to oust them on the ground that the district was not legally organized, for even if made they are no grounds for outlawing the district. State ex rel. v. Wright, 270 Mo. 376. And conversely if made by voters to the superintendent the same rule of law would apply. (5) The plat was sufficient. It was a substantial compliance with the law. ' That is all that is required. State ex inf. v. Smith, 271 Mo. 168; State ex inf. v. Jones, 266 Mo. 191; State ex rel. v. Job, 205 Mo. 1; State ex inf. v. Morgan, 268 Mo. 265; State ex rel. v. Cloud, 192 Mo. App. 322; State ex rel. v. Glaves, 268 Mo. 100. (6) The first certificate filed by the chairman and secretary, was probably sufficient. State ex rel. v. Glaves, 268 Mo. 100. But there was no reason why, upon discovery that it Was slightly defective, a new one should not be filed correcting the error. The new certificate conforms exactly to the plat filed by the county superintendent, hence no fraud was perpetrated; and was filed one month lacking three days before this suit was filed, and no harm could have been done anybody. State ex rel. v. Glaves, 268 Mo. 100. (7) The provision of the statute requiring "the superintendent to call the meeting to order is directory. State ex rel. v. Long, 275 Mo. 169. So it made no difference whether he called the meeting to order voluntarily, or was coerced, or whether he called it at all. (8) This suit was instituted by the prosecuting attorney on information at the relation of private parties. No leave of court was obtained to file this information. This was jurisdictional and can be raised for the first time in this court. Such information could not be filed without leave of court being first had, and no leave being granted neither the circuit court nor this court acquired jurisdiction. Hence the judgment of the circuit court dismissing petition was right, regardless of whether title to office was involved or not. State ex rel. Stewart v. Mcllhany, 32 Mo. 382; State ex rel. v. Ilequembourg, 38 Mo. 535; State ex rel. v. Tail, 23 Mo. 97; State ex rel. v. Townley, 56 Mo. 107; State ex rel. v. Rose, 84 Mo. 198.
   REEYES, C.

This is a proceeding by quo war-ranto filed by the Prosecuting Attorney of Linn County, at the relation of one certain school district and ten taxpaying citizens residing therein, against a óertain consolidated school district, its clerk and the six members of its board of directors.

The purpose of the proceeding is to challenge the validity of the formation of said consolidated district and to oust the several named respondents from their several offices as members of said board of directors and as clerk of said district.

There is no dispute as to the election of said officers, but an ouster is sought upon the grounds that, the organization' of said consolidated district being illegal, they function said offices wrongfully, as no such offices were created in law.

The petition alleges that proceedings were instituted conformable to law for the formation of a consolidated school district and that such organization was rendered invalid by the following:

(a) Relators were too remote from the place where schools were to be maintained and separated therefrom by West Yellow Creek, sometimes impassable.
(b) The superintendent of county schools in answering the petition for the formation of such consolidated district was misled by the defendants and was the victim of fraud and deceit practiced by them.
(c) That the said superintendent was coerced and intimidated by defendants and compelled, against his will, to call the special .meeting to order, which liad assembled, upon notice, to pass upon the question of forming said district and electing directors therefor.
(d) That the chairman and secretary of said meeting had filed a certificate with the county clerk showing that the proposition voted on differed from that contained in the notices for said meeting.

Upon exhibiting this information the respondents moved to strike out all of the first three of the above propositions on the grounds that such allegations did not state a cause of action. Such motion being in its nature a demurrer was sustained, over the objection and exception of relators and appellants.

To the balance of the petition or information respondents made return and answer alleging -the formation of said consolidated district conformable to an act of the Legislature approved March 14, 1913, as amended by the act of the Legislature approved March 27, 1917, and upon general denial in replication, the matter went to trial, where the issues were determined adversely to relators and the validity of the district upheld and their information or petition dismissed.

At the trial it appeared that the chairman and secretary of the special meeting had made up and filed a certificate showing that a proposition differing from that contained in the notices had in fact been voted on, but subsequently an amended certificate was filed showing that the meeting had voted on the exact proposition contained in the notices.

I. The office of school director, being an office under this State (State ex inf. Sutton v. Fasse, 189 Mo. 532), this court has exclusive jurisdiction, as all cases involving “the title to any office under this State” come here. [Sec. 12, Artr 6, Constitution of Missouri.] Originally the case was sent to the Kansas City Court of Appeals, but for the above reasons was properly transferred to this court.

II. Upon the foregoing facts relators, as appellants here, complain that the court should not have stricken from their information the allegations regarding the impractibility ff the formatio'n of said district; of the fraud and deceit practiced upon the county superintendent of schools; and the coercion and intimidation to which, they allege, he was subjected. They also complain of the action of the court in admitting the amended and corrected cei tifícaté from the chairman and secretary of the special meeting.

(a) The court properly sustained the motion to strike out the portions of the information or petition mentioned. The requisite number of citizens and voters of the community, conformable to the act of the Legislature approved March 14, 1913, had filed their petition to the county superintendent of public schools of Linn County, expressing their desire to form a consolidated district.

The petition properly offered in evidence shows that it included District No. 24 wherein the relators resided.

This petition initiated the movement for the consolidated district and under the statute was sufficient to invoke the exercise of the discretionary powers of the county superintendent of public schools. It was not his function to determine whether or not a consolidated district should be formed, as that was a question for the qualified voters of the district to determine, but it was his duty to investigate the needs of the community and determine the exact boundaries of the proposed consolidated district.

Under the statute he could only fix the exact boundaries for the purposes of notice for the special meeting and it was not within his power to dictate to the community whether certain large portions of the proposed district should be included or not.

The allegations, therefore, regarding the remoteness of relators from the proposed school building and the difficulty that might be experienced in crossing West Yellow Creek were not questions to be passed upon by this official. We are persuaded that this is so, because the petition filed with him included District No. 24, wherein relators reside.

The statute made it his duty to locate the boundary lines as in his judgment would form the best possible consolidated district, always mindful of the welfare of adjoining districts. These questions were discretionary and appealed to his sound judgment and are not judicial questions, so, therefore, the judiciary would not be at' liberty to interfere with the exercise of a discretion by this official except that same had been abused, and no such question has been raised here.

Again there was a remedy against the had judgment of the superintendent if any, as the people affected had the absolute right, upon notice, to accept or reject the boundaries as marked off by him.

(b) On the question of fraud and deceit, these questions were not issuable, for the reason that the county superintendent was exercising a minis-ferial duty, and it is of no consequence what representations might have been made to him, as he is not a party to this record, and there was no allegation that the people who voted on the questions involved were either deceived or misled.

On the other hand, we cannot see how the superintendent could have been deceived, as the law made it his duty to visit the community and undoubtedly he could see the geographical and physical conditions of the proposed district and understand the situation as well as others. Even if he were a party to this action, no fraud could have been practiced upon him and neither could he have been misled or deceived, because all the facts were just as apparent to him or should have been as to his alleged deceivers.

Whether he was deceived or derelict in the performance of his duty, according to the evidence in the case, the people by a vote of 77 to 14 accepted his judgment, and it nowhere appears that the voters failed to understand the exact proposition upon which they were voting.

(c) The question as to whether or not the superintendent was coerced and forced by-intimidation to call special meeting to order can be disposed of be stating that this was his statutory duty and, therefore, he could not be coerced and intimidated to do that which clearly the statute enjoined upon him to do.

Counsel for appellants call attention to the ease of State ex rel. Hilbert v. Glaves, 268 Mo. 100, wherein a discrepancy between two plats showing the boundaries of a proposed consolidated .district appeared. The court in passing upon such discrepancy considered it too trivial upon the facts in that case for judicial interference and particularly as no evidence of fraud appeared. Such discrepancy as appeared in the Glaves case was only of immediate concern to the voters as the will of the voters had to be expressed upon the plats submitted by the superintendent. In this case there is no such question. The voters admittedly had before them the plats showing the exact proposed boundary lines and, therefore, the question of the boundary lines was fairly settled, and whatever the judgment of the county superintendent and however reached, that judgment was submitted to the voters and accepted by them. Fraud and deception if any practiced upon the county superintendent would be too remote and such allegations of the petition were properly eliminated.

III. At the trial of the case relators offered the original certificate filed by the chairman and secretary of the special meeting with the county clerk as required by law. This certificate showed that the proposition voted on’ covered four full districts, including relator district, but failed to show that portions of adjacent districts had been included as in the notices.

Over the objection and exception of relators respondents offered an amended certificate which showed that the proposition voted on conformed to the notices given. No error was committed by the court in admitting this corrected certificate, as it was the duty of the chairman and secretary of the meeting to file a certificate showing what actually occurred at the meeting, and because of their mistake no harm should he suffered by the district and no complaint could justly be made against the introduction of testimony showing what the voters actually did, as an error of the chairman and secretary would not preclude such testimony.

¡Many of the questions here passed upon were present in the well-reasoned case of State ex rel. v. Wright, 270 Mo. 376, and our rulings follow that case. This disposes of all the questions raised by appellants and in' view of our decision it is unnecessary to pass on questions raised by respondents.

Finding no error in the record, we affirm the judgment of the trial court.

Railey and White, GO., concur.

PER CURIAM: — The foregoing opinion by Reeves, C., is adopted as the opinion of the court.

All of the judges concur.


text:
    THE STATE ex rel. ELLA PLUMMER, Appellant, v. FREDERICK D. GARDNER, Governor, et al.
    Division Two,
    October 11, 1921.
    1. COUNTY: St. Louis. The City of St. Louis is a legal subdivision of the State, and as such has been and should be treated for all governmental purposes as a county.
    2. TAXATION: Classification of Real Estate: In St. Louis. The State Board of Equalization acts within its constitutional authority when it classifies real estate in the City of St. Louis in the same mannner it classified real estate in the counties of the State.
    3. -: -: .-: As Town Lots. The statute (Sec. 12855, R. S. 1919) directs the State Board of Equalization to “classify all real estate situate in cities, towns and villages as town lots, and all other real estate as farming lands.” Held, that the owner of a lot in St. Louis cannot complain of an action of tlie board increasing the valuation of lands in St. Louis ten per cent and town lots six per cent, since the board had the unquestionable statutory right to add to the valuation of town lots, and if her contention that there was no such thing as lands' within the city other than town lots were sustained she would not suffer, the increase on the valuation of her lot being less than that placed on other property classed as lands.
    4. CER.TIOR.AItI: Return in Two Days. Certiorari is a remedial writ, and at the instance of a private party may issue only at the sound discretion of the court, but when issued the court may fix such date for answer and return as it deems proper, and there may be circumstances requiring an immediate return'. But a writ directed to the State Board of Equalization commanding it to certify up its records altering the valuation of real estate in the City of St. Louis for a certain year, within two days, designates an unreasonably short time; but where the return is made and the board suffered no injury on account of the shortness of the time, its motion that the writ be' quashed on the ground that the court was without authority to require so quick a return and abused its. process should be overruled.
    Appeal from Cole Circuit Court. — Hon J. G. Slate, Judge.
    Affirmed.

      Marion C. Early for appellant.
    (1) The State Board of Equalization has power to change valuations within counties only by acting uniformly as to the classes of property established by the statute; and has no power to create classes outside of the statutory classes. State ex rel. v. Yaile, 122 Mo. 33; Mercantile Trust Co. v. Schramm, 269 Mo. 489. (2) Under the statute there are only two classes of real estate, land in incorporated cities, towns and villages, and land outside of them. In the City of St. Louis there is no realty of the second class. The board has no power to make two classes of realty, for purposes of valuation for taxation, in the City of St, Louis. (3) No public inconvenience will result from quashing the action of the hoard in attempting this void increase in the valuation of St. Louis realty. The taxbills which have been issued are not void, hut are perfectly good on the basis of the valuation made by the local board, before the state board attempted this unwarranted interference. State ex rel. v. Yaile, 122 Mo. 33, 47. (4) The action of the board would increase the valuation of realty in the City of St. Louis over $35,000,000. A substantial injury is threatened to property owners; they have a grievance for which quashing the action of the board is the only practical remedy. (5) Any usurpation of .official power is an attack on the soverignty of the people, and serious as such. Courts will not shrink from dealing with charges showing, such usurpation. (6) While the issuance of the alternative writ is discretionary, within limits unnecessary to discuss, yet after it has issued, and the record has been certified, as was done in this case, there is no question of further discretion. It is the duty of the court to decide the case on its merits. State ex rel. v. Guinotte, 156 Mo. 513, 528.

      Jesse W. Barrett, Attorney-General, and Merrill E. Otis, Assistant Attorney-General, for respondents.
    (1) Issuance of a writ of certiorari is discretionary. An abuse of this discretion will be reviewed. In the instant case the alternative writ should not have issued. The writ should never issue when there has been no substantial injury to the petitioner, when the petitioner’s cause is without equity, or when the quashing of proceedings of a governmental department will result in great public inconvenience, (a) The writ is discretionary. 11 C. J. p. 128; State v. Henderson, 160 Mo. 190; State v. Guinotte, 156 Mo. 513. (1?) Abuse of discretion* will be reviewed. 11 C. J. p. 129; State v. Dobson, 135 Mo. 1. (c) The alternative writ should not have issued because the petitioner was without equity and because the quashing of the proceedings of the board of equalization in the instant case necessarily would result in great public inconvenience. 11 C. J. p. 130; 5 R. C. L. 254; McAloon v. Commissioners, 22 R. I. 191; State ex rel. v. Gosnell, 61L. R. A. 50; People v. Commissioners, 40 Mich. 745; People v. Mayor of New York, 5 Barbour (N. Y.) 49; State ex reh v. Lockhart, 18 Wash. 535; Knapp v. Heller, 32 Wis. 467. (2) Respondents’ motion to quash the alternative writ should have been sustained for the reason that the court was without jurisdiction to require a return within two days. Certiorari, in the absence of a special statute, is a “suit,” subject to the general law governing the time within which return or answer must be made. Summons to answer within a shorter period will be quashed. A qualified return does not waive this point, (a) The law allows not less than fifteen days to answer “suits.” Secs. 1182, 1183, 1184, R. S. 1919. (b) Certiorari is a suit. 4 Words and Phrases (2 Series) p. 775; Hendrix v. Kellogg, 32 Ga. 435, 437. (c) Absent a special statute (there is none in .Missouri) the general law governs time of making return to writ of certiorari. 4 Ency. PI. & Prac., p. 204; Hardin v. Williams, 5 Heisk. (Tenn.) 385. The State 5>oard of Equalization did not exceed its jurisdiction in its order increasing by different percentages “lands” and “town lots,” as classified by the assessor of St. Louis City. The statute gives that authority. A statute will not be so construed as to produce an absurd, inequitable or unconstitutional result. The construction contended for by appellant is absurd, inequitable and possibly unconstitutional. (d) A statute will not be given an absurd, inequitable or unconstitutional interpretation, if that can be avoided. (4) The State Board of Equalization had the unquestioned right to raise the valuation on all real estate in St. Louis City. It had the right to raise the valuation of such real estate, including “lands” and “town lots,” as classified by the assessor, by six per cent. It did raise this valuation by six per cent. If it had no jurisdiction to put an additional four per cent on the comparatively small item of “lands,” as certified by the assessor, the appellant, who owned no “lands,” cannot complain, because not injured. Even if appellant could complain and even if it is admitted that placing the additional four per cent on “lands” was in excess of the jurisdiction of the board, then only that excess, amounting to $734,377.60 is illegal, and not the entire increase amounting to $36,110,758. The order of the board in the instant case shows a clear intention on' its part to raise the valuation of real estate in St. Louis City six per cent. This the board had the right to do.
   REEYES, C.

On November 5, 1919, pursuant to application for writ of certiorari previously filed, the Circuit Court of Cole County issued its alternative writ directed to the officials constituting the State Board of Equalization, commanding said board to certify up its record of certain proceedings previously had concerning the alteration of the valuation of real estate for the year 1919 in St. Louis.

It was the mandate of the writ that return be made thereto on November 7, 1919, or two days after its issuance. On the return day respondents "moved to quash the alternative writ on the grounds, first, tbit the court was without authority to require so quick a return; second, that by requiring so immediate a return our statutes concerning the commencement of actions and the service of process were violated; and, third, that the time to make answer and return was unreasonably short. This motion was overruled and respondents, protesting, made a qualified return, sending up copies of all records involved.

Thereupon relator, appellant here, filed her motion for judgment according to her petition, and the same having been overruled, the court entered judgment dismissing relator’s petition.

The proceedings of the State Board of Equalization complained against consisted of a certain resolution altering valuations in St. Louis, and particularly increasing the valuation of lands ten per cent and town lots six per cent.

Relator as the owner of a certain lot in the City of St. Lonis challenges the authority of the State Board of Equalization to divide realty in said city into classes for the purposes of valuation, and having acted in excess óf its authority, such act, she declares, is void, - and as a realty owner her rights are affected.

I. The court very properly dismissed relator’s bill. In fact, no writ of certiorari should have been issued.

Section 12855, Revised Statutes 1919, directs the State Board of Equalization to “classify all real estate situate in cities, towns and villages as town l°ts, and all other real estate as farming lands. ” As a condition precedent there must be laid before the board by the county clerks and the president of the board of assessors of St. Louis abstracts of all the taxable property in the State.

It will be noted from the above that St. Louis City is treated as a subdivision of this State for the purpose of such returns.

Section 1, Article 9, of the Constitution of, Missouri provides that “the several counties of this State, as they now exist, are hereby recognized as legal subdivisions of the State.” St. Louis City^is a legal subdivision of Missouri, and as such has been and should be treated for all governmental purposes as a county, [Grracev v. St. Louis, 213 Mo. 384; State ex rel. v. Finn, 4 Mo. App. 347.]

In the last cited case the court said regarding the City of St. Louis: “It may be a county so far as to keep up a relation as such to the rest of the State.” Again Sections 20, 21, 22, 23, 24 and 25, Article 9, of our State Constitution, deal specifically with the City of St. Louis, and provide for its organization as a subdivision of Missouri. Section 20, Article 9, of the Constitution, provides, among other things, that it “may extend its limits so as to embrace the parks now without its boundaries and other convenient and contiguous territory. ’ ’

It would be idle to say that real property embraced with in the corporate limits of the City of St. Louis as a subdivision of this State must be classed as town lots. For all the purposes of valuations and taxation of property St. Louis is a legal subdivision of the State and should be treated as a county. The State Board of Equalization acted clearly within its rights when it classified real estate there in the same manner that it did the real estate in the counties of the State.

We are unable to see wherein relator, as appellant here, possesses such interest as would entitle her to complain. According to our construction of the statute, the State Board of Equalization had the undisputed right.to add to the valuation of town lots, and if her contention should be sustained to the effect that there was no such thing as lands other than town lots in St. Louis, she would not suffer for the reason that the increase on her property was less than that placed on the other property classed as lands.

If any one had the right to complain it would be the persons whose real estate in St. Louis was classed as lands, as the increase fell heaviest there. However, the beneficial interest of relator, not having been challenged below, should not be questioned here.

II. Respondents have emphasized that their motion to quash the alternative writ should have been sustained. We dp not agree that it should have been quashed upon the grounds enumerated in the motion. Certiorari is a common law remedial writ, and at the instance of a private party may issue only at the sound discretion of the court. When issued the court may fix such date for answer and return as it may deem proper. The circumstances may require an immediate return or the extraordinary remedy of the writ may be lost. In this case the time was unreasonably short, but as the return was made we have been unable to find where respondents suffered injury, and particularly since the court subsequently corrected its own error by quashing its writ.

Upon the facts in this case, the comt below improvidently issued, its writ of certiorari, and very properly, as was its right, quashed it and dismissed relator’s petition. It follows that its action should be and is affirmed.

Bailey and White, GG, concur.

PER CURIAM: — The foregoing opinion by Reeves, C., is adopted as.the opinion of the court.

All of the judges concur.


author: GRAVES, J. D. E. BLAIR, J.

text:
    THE STATE ex rel. THOMAS P. MURPHY v. FRANK LANDWEHR, Judge of Circuit Court.
    Division Two,
    October 29, 1921.
    1. BALLOTS AND POLL BOOKS: Use by Grand Jury: Forbidden by Statute. A subpoena duces teoum directed to tbe Board of Election Commissioners of the City of St. Louis, commanding them to bring before the grand jury “tbe ballot boxes, ballots and tbe official returns and statements made by tbe judges and clerks of election” of a certain precinct in connection with a primary election is prohibited by Section 5403, Revised Statutes 1919, prohibiting tbe use of such ballots if tbe use thereof will “tend toward showing who voted any ballot;” for the use of tbe ballots in connection with tbe poll books would enable at least tbe members of tbe grand jury and all other persons legally present to ascertain bow each voter bad voted.
    2. -: -: Certificate to PoU Book. Tbe poll books made by the judges and clerks of election at a primary election, if they are produced before tbe grand jury, must be presented as a whole, including the certificate on tbe back page thereof, which cannot be reserved from tbe book, by tbe court or the election commissioners, and to produce tbe certificate is to produce tbe poll book itself before the grand jury and its legal attendants, and that would be to violate Section 5403, -Revised Statutes 1919, which declares that, in an investigation before a grand jury, “tbe ballots be in no way used or any information disclosed that would tend toward showing who voted any ballot.” [DAVID E. BLAIR, J„ concurring for the reason that State ex rel. v. Hartmann, 231 S. W., 982, decided by Court in Banc, is controlling in this case, tbe facts not being distinguishable from those iv judgment there.]

      Prohibition.
    PRELIMINARY WRIT MADE ABSOLUTE.

      Wifley, Williams, McIntyre, Hensley & Nelson for relator.
    (1) Sec. 5403, R. S. 1919, determines the power and jurisdiction of respondent in the instant case. State ex rel. Eeinstein v. Hartmann, 231 S. W. 982. (2) Said statute by express proviso declares “that the ballots in no way be used or any information disclosed that would tend toward showing who voted any ballot.” The phrase “tend toward showing” as used in the above statute has a clear and unambiguous meaning. Definition of word “tend”: Webster’s New International Dictionary; 9 Century Diet, and Oye. p. 6228; 38 Oyc. 125; White v. State, 153 Ind. 692; Hogue v. State, 93 Ark. 322; Ex parte Gauss, 223 Mo. 277, 284; 3 Wigmore on Evidence, sec. 2260. (3) The application for subpoena duces tecum calls for all the statements and official returns made by the judges and clerks of election in connection with said primary election. One of these statements or returns is attached to the poll book and cannot be produced without also producing the poll book. (4) The application for subpoena duces tec%m is under the authorities too indefinite and uncertain to confer jurisdiction upon the circuit court to issue the writ of subpoena duces tecum. State ex rel. Wurdeman, 175 Mo. App. '540; Ex parte Brown,72 Mo. 83.

      Jesse W. Barrett, Attorney-General, and Merrill E. Otis, Assistant Attorney-General, for respondent; Howard Sidener, Circuit Attorney, and Boland Johnston, Assistant Circuit Attorney, of counsel.
    (1) There is no constitutional guaranty of secrecy as to ballots cast in primary elections in this State. State ex rel. Feinstein v. Hartmann, 231 S. W. 982; In re Kansas City Election Commissioners, — Mo.—. (2) The prohibition against the production before grand juries of primary election ballots, orginally a part of the primary laws, being therein incorporated by reference, was stricken from those laws by the amendment to the law of evidence now known as Sec. 5403, R. S. 1919. State ex rel. Feinstein v. Hartmann, 231 S. W. 982. (3) Sec. 5403, R. S. 1919, authorzies the production of primary election ballots tó be used in grand jury investigations. State ex rel. Feinstein v. Hartmann, 231 S. W. 982. (4) The proviso in Sec. 5403,- R. S. 1919, relied on by relator, is a limitation, not upon the right to require the production of ballots, but solely upon the use.to which they may be put, after they have been produced. The proviso assumes that they have been produced. If the proviso is construed as contended for by relator the section is meaningless. The court will presume that the Legislature did not intend to enact a statute without meaning. (5) The true meaning of the proviso is that the ballots shall not be used so as to show at the investigation or hearing who voted any ballot. (6) Inspection of the ballots alone cannot “tend to show” who voted them. In addition there must be access to the poll books. The law forbids that access. The situation is just as if the poll books did not exist. Sec. 5258, R. S. 1919. (7) The law defines what is meant by “statements and returns” as that .phrase is used in the application for a subpoena duces tecum. The term does not include the ‘ ‘ certificate ’ ’ contained in the poll book and set out in the agreed statement of facts. Sec. 5007, R. S. 1919. (8) There is no showing that the stenographer at the former hearing saw the poll books or has any knowledge of their contents. Moreover, the stenographer may be removed by the circuit attorney and another substituted for him. Furthermore, the stenographer is sworn to secrecy. Sec. 705, R. S. 1919. (9) The rules requiring definiteness in a subpoena diices tecum and a showing of materiality in the application therefor is not pertinent to a subpoena under Section 5403. ( In any event, relator cannot avail himself of that rule.
   GRAVES, J.

Counsel in this case have strictly followed our rule as to the statements of their case. The rule requires that the party having the burden shall-make a fair and concise statement of the case, and that the opposite side “may adopt the statement of appellant; or if not satisfied therewith, he shall in a concise statement correct any errors therein.” We commend counsel upon both sides for the strictness with which they have followed this rule. The purpose of the rule was to save time of the court. Counsel for respondent say: “Relator’s statement is a fair one. We make one correction only. Respondent does not admit either that the same stenographer will act for the grand jury in case and when the ballots are produced or that the stenographer acting for the former grand jury did, as a matter of fact, inspect the poll books then produced. The pleadings will show that respondent has admitted only that the stenographer who acted for the former grand jury is now acting for the present grand jury.”

With this frank admission, we can in safety rely upon relator’s statement, leaving the disputed point for a more critical examination.

Relator thus states his case:

“This is an original proceeding in prohibition whereby the relator seeks to prohibit the respondent, as' Judge of the Circuit Court of the City of St. Louis, from ordering the issuance of a certain subpoena duces team, which he is now threatening to do.
“The preliminary rule was issued by this court on July 9, 1921, and at the same time the court made an order permitting the submission of this case on the typewritten record or originals of pleadings.
“Respondent thereafter filed his return, which raised issues of fact. Thereafter, the attorneys representing the respective parties held a conference, at which an agreement was reached, whereby all issues of fact have now been eliminated, and respondent has filed an amended return. Relator has filed a motion for judgment on the pleadings and agreed statement of facts.
“In the hurriedly prepared application for the writ of prohibition relator alleged that if the ballots were marked as required by law they contained on the back thereof the same number which appeared in the registration books in the City of St. Louis opposite the name of the registered voter. After full investigation the relator has become convinced that he was in error as to this allegation, and, therefore, now desires to admit that that point should not be considered by the court in arriving at its conclusion.
‘ ‘ The admitted facts may be summarized briefly as follows:
“Since the 5th day of July, 1921, there has been pending in the division of the Circuit Court of the City of St. Louis over which the respondent presides, an investigation before a grand jury for the purpose of investigating violations of the criminal statutes of the State and for the further purpose' of returning indictments against persons who may be found by the grand jury to have violated said statutes.
“On the 6th day of July, 1921, the Circuit Attorney of the City of St. Louis filed in said division of the circuit court an application in writing, praying the issuance of a writ of subpoena duces tecum. Said application is in words and figures as follows (caption and signatures omitted):
“ ‘Now corner Jones H. Parker, Assistant Circuit Attorney in and for the City of St. Louis. State of Missouri, and states to the court that the grand jury within and for the body of the City of St. Louis has under investigation certain matters in which it is necessary that certain evidence, documents, books and papers be pro duced to be examined as evidence before said body, which said evidence, documents, books and papers are in the possession and under the control of John B. Edwards, Alexander Bobbins, John H. Holliday and James- Y. Player, who, together, comprise the Board of Election Commissioners of the City of St. Louis:
“ ‘Wherefore, your petitioner prays that the court order to he issued a subpoena duces tecum to be served on the said John B. Edwards, Alexander Robbins, John H. Holliday and James Y. Player, to be and appear, in person, before the grand jury of said City of St. Louis on the fifth day of July, 1921, at two o’clock in the afternoon, of said day, and produce before said grand jury certain evidence, documents, books and papers, more particularly described as follows:
“ ‘The ballot boxes, ballots and the official returns and statements made by the judges and clerks of election to the Board of Election Commissionérs used and made in and in connection with the primary election held in the City of St. Louis, Missouri, on the third day of August, 1920, in the following precinct of the following ward, to-wit:
“Twenty-fourth precinct of the Twenty-seventh ward, to be used as evidence in the matters under investigation by said grand jury. ’
‘ ‘ Thereafter, and before said application was passed upon, and on, to-wit, the 7th day of July, 1921, your relator appeared ex parte in said court, and filed a motion alleging that he was a qualified voter in said precinct, and that he voted at the primary election held in said precinct and ward on August 3,-1920, and. in said motion prayed that the court strike out or quash each and every sentence, word and line of said application for subpoena duces tecum, alleging in his said motion the following grounds, to-wit: ' '
“ ‘1. Because this court and the judge thereof is wholly, without power, authority or jurisdiction to order the issuance of a subpoena duces tecum requiring and commanding the production before him or said grand jury of the ballots, statements, papers, documents and evidence called for in said application.
“ ‘2. Because the granting of said order as prayed in said application would destroy your petitioner’s right to secrecy in the matter of casting- his ballot at said primary election and would deprive him of bis rights guaranteed to him by Section 3, Article VIII, of the Constitution of Missouri and the statutes of said State.
“ ‘3. Because the granting of said order as prayed would use said ballots in a way and disclose information that would tend toward showing how and what ballot your petitioner and the other qualified and voting electors of said precinct and ward voted at'said primary election, in direct contravention of the statute in such eases made and provided.
“‘á.. The application or petition for the alleged subpoena duces tecum is indefinite and wholly insufficient in law to confer any jurisdiction or authority in this court to issue said subpoena duces tecum/
‘1 Thereafter, and on the 7th day of July, 1921, respondent, as judge of said circuit court, overruled the relator’s motion to strike said application for subpoena duces tecum and each and every part thereof, and orally expressed his intention to issue the subpoena duces tecum as prayed for in said application.
“Thereupon, and before respondent made his order issuing said subpoena duces tecum, application for preliminary rule in prohibition was made to this Honorable Court, with the result, above announced.
“The ballots, official returns and statements called for in said application for subpoena duces tecum are now in the custody of the Board of Election Commissioners of the City of St. Louis, and it is admitted that the same will be produced before the grand jury if said subpoena duces tecum is issued. It is also admitted by the pleadings that the poll book made and used in said precinct and ward at said primary election was produced and exhibited before a grand jury in the City of St. Louis in November, 1920, and in the presence of and before the Assistant Circuit Attorney of said city and the stenographer then and there present aiding and waiting upon said grand jury, and that the stenographer who took down the proceedings of said grand jury is the same person who is now acting in the same capacity for the present grand jury before whom it is sought to produce said ballots, returns and statements. It is further admitted that the subpoena duces tecum is not ashed for in aid of and for use in any case of contested election. It is also admitted that the relator was on the 3rd' day of August, 1920, the date of said primary election, a duly registered and qualified voter in said precinct and ward in the City of St. Louis, and that he voted at said precinct on said date. The parties hereto have filed a written agreement, of facts to the following effect; that the following blank, which is in words and figures as follows:
“ ‘It is hereby certified that the number of voters voting at this election amounts to'.
“ ‘Number of ballots rejected
“ -Why rejected..
“ ‘Given under our hands and seals this.day of August, 1920.
a t
“ ‘ Judges of Election.
í Í C
í ( i
“‘Clerks of Election.’
appears upon the back side of the last sheet of the poll book used in said primary election at said precinct, and that said blanks were by the election officials of said precinct duly filled in, stating the number of persons voting at said election, stating the number of ballots rejected and why rejected, and that the same -was properly subscribed and signed by the judges and clerks of election in said precinct and ward. It is further admitted that this statement was delivered by the said. election officials, to the Board of Election Commissioners of the City of St. Louis, and that the same is now in their possession. It also appears from the exhibit attached to said stipulation that said statement appears upon the back of said poll book, and is attached- thereto in such a way as that it will be impossible to produce said statement before the grand jury without also producing a part or the whole of the poll book used in said primary at said election. A question of law for the court’s determination will arise as to whether or not this statement appearing on the back of the poll book in said precinct is one of the statements called for in said application for subpoena duces tecum. This is the statement to which reference is made by relator in his application for writ of prohibition wherein he states that said statement cannot be produced without also producing the poll book in said precinct.
“It thus appears from the admitted facts, that if the subpoena duces tecum is issued the ballots from this precinct will be presented to the grand jury and to at least one person, the stenographer who has heretofore seen the poll book from said precinct. The ballots called for in said application for a subpoena duces tecum have on the back thereof the number thereof, which number corresponds to the number opposite the names of the voters in the-poll book.
“Relator has three theories upon which he asks that the preliminary rule" in prohibition be made absolute. They are as follows:
“First. That the production of the ballots alone will disclose the number of the ballot and therefore the 'number of the person who voted said ballot and will thereby disclose facts which will ‘tend toward showing who voted said ballot’-in direct contravention of Section 5403, Revised Statutes 1919.
“Second. That the application for the subpoena duces tecum calls for statements which, if produced, will necessarily bring before the grand jury not only the ballots, but the poll books as well, and the same situation will thereby be presented as was involved in the case of State ex rel. Feinstein v. Hartmann, recently decided by this court.
“Third: That the application for the subpoena duces tecum is too indefinite and uncertain to confer jurisdiction upon the circuit court to issue said subpoena duces tecum.
“While relator is of the opinion that grounds two and three above will each justify the making of the preliminary rule absolute, yet- in order that there may be an end to this litigation we kindly request that the case may not be allowed to turn alone on either of said propositions, but that the court, by its opinion, also decide the first proposition so that the rights of the respective parties in the premises may be finally determined. ’ ’

The foregoing suffices for an outline of the case.

I. The questions involved in this case are not entirely new'to this court. [State ex rel. v. Hartmann, 231 S. W. 982.] , In the case of Hartmann, the coat had the varied colors of Joseph’s coat. It covered the whole field. In the instant case some of the various colors have been omitted. In Hartman’s case the Board of Election Commissioners had been directed, by subpoena duces tecum, to bring before the grand jury “the ballot boxes and contents, tally sheets, poll books, and the official returns and statements made by the judges and clerks of election in certain precincts mentioned. ’ ’ The instant case grows .out of the same primary election, and the application for the subpoena duces tecum asks that the St. Louis Board of Election Commissioners be required to bring before the grand jury “the ballot boxes, ballots and the official returns and statements made by the judges and clerks of election to the Board of Election Commissioners.” It is admitted that respondent threatens to issue a subpoena duces tecum as called for in the application, and threatens to give his grand jury possession of such documents. It will be observed that, in comparing this case with Hartmann’s case, there has been left out “tally sheets, and poll books” only. In other respects the threatened subpoena is as broad as the one in Hartmann’s case. It does call for “the official returns and statements made by the judges and clerks of election. ’ ’ It- stands admitted that an important statement and return of such judges and clerks is on the back page of the poll book, and that such poll book shows the number of the ballots cast by the voters. We are all familiar with usual poll books. The voters are numbered consecutively and the number of the voter in the poll book is placed upon the back of his ballot. With the possession of the ballots, and the number on the backs thereof, one having the poll book with the number and name of the voter could readily determine, by a comparison of the numbers, each candidate for whom the voter cast his ballot. To illustrate, the grand jurors, or other legally in their presence, could look at the number of a given ballot and such person could then turn to the same number upon the poll book and there obtain the name axid address of the person who voted that ballot. [R. S. 1919, secs. 5246 and 5247.] The information thus obtained would go to each office for which the voter had voted. The opportunity would be there for the grand jury and all of its legal attendants to discover how each voter had cast his ballot. This was condemned in State ex rel. v. Hartmann, 231 S. W. 982. The only question is, whether or not the admissions in this case bring it within the Hartmann case. We think they do. It stands admitted that at least one of the statements from the judges and clerks is to be found upon the back page of the poll book. The poll book is defined by statute. It is the book in which the names of the voters are registered in numerical order, and opposite the name of each voter is the number which appears upon the back of his ballot. These poll books are required to be filed with the election commissioners, and there is no authority of law for the mutilation of them. In other words, neither the circuit judge, nor the election commissioners, can tear apart or otherwise despoil these books before they go to the grand jury. They must go there in the form in which'they were returned to the election commissioners, or not at all. By that form the statement of the judges and clerks (called for by the application and the anticipated subpoena duces tecum) is on the back leaf of the poll book. No authority is granted by law for the spoliation of this book. If it goes before the grand jury at all, it must go as a whole, and if it so goesdhe means is at hand for all legally present to determine how each voter voted upon the several different offices. Section 5403, Revised Statutes 1919, in the proviso thereof, prohibits the use of the ballots named in the section, if the use thereof would “tend toward showing who voted any ballot.”, The use of the ballot itself might not show or tend to show (as to this relator interposes a question) how any particular voter cast his ballot. But, if the persons were possessed of the ballots, and also the poll book, it could be easily determined just how each voter cast his ballot. The use of such ballots in' connection with,the poll books would, in our judgment, “tend toward showing who voted any ballot,” and would violate the proviso of Section 5403, supra. It would be unreasonable to hold that you could give thirteen or more men the possession of both the ballots and the poll book, and not hold that such use of the ballots would tend to show how each voter cast his ballot. It places the power in the hands of the grand jury to find out the character of each vote recorded' by the ballots and book.

II. Other questions are pressed by relator, but in view of what we have ruled, supra, we think further comment is not required on this record, or any other record which could be made up under the facts of the primary election involved in this and the Hartmann case. The poll books are official documents, and ^ they go to the grand jury at all, must go as a whole, which includes the certificate on the back page thereof. The certificate on the back page thereof cannot be severed from this public document. To produce the certificate, means to produce the poll book, and to turn over the poll book and the ballots to a grand jury, and its legal attendants, is in violation of Section 5403, supra. Our preliminary rule in prohibition should be made absolute, and it is so ordered.

All concur; D. E. Blair, J., in separate opinion; Higbee, J., absent.

D. E. BLAIR, J.

(concurring) — In the reasoning and the conclusion reached in State ex rel. v. Hartmann, 231 S. W. 982, I did not concur and am still of the opinion that case was not well ruled, but that case stands as the final interpretation by this court en banc of the law applicable to the facts in that case and the ruling made in Hartmann’s case is controlling in all cases not distinguishable on the facts.

I agree with the holding of the majority that the certificate of the judges and clerks of election, attached to and made a part of the poll books, cannot be produced and used- before the grand jury without such use tending “toward showing who voted any ballot.” This brings the acts here sought to be prohibited within the character of acts prohibited by the rule laid down in Hartmann’s case and, yielding as is my duty to the controlling authority of that case, leads to my concurrence in the result reached in the instant case.


author: HIGBEE, P. J.

text:
    ABRAM LANDIS v. HUGH B. HAWKINS et al., Appellants.
    Division Two,
    November 19, 1921.
    1. WIDOW’S ELECTION: Piled Before Letters of Administration. The right of a childless widow to elect to take a half interest in her deceased husband’s property is not suspended until the granting of letters of administration upon his estate, but her election may be filed in the Recorder’s office before the issuance of such letters.
    2. -: - — : Construction. The statute (Sec. 325, R. S. 1919) requiring the widow’s declaration of an election to take an absolute interest in her husband’s estate in lieu of common-law dower, to be filed with the clerk of the court in which letters of administration shall have been granted within six months, and in the office of the Recorder of Deeds of the same county within nine months, after the grant of such letters, is to be construed as a Statute of Limitations, and should be liberally construed so as to accomplish its evident purpose.
    3. -: -: Erroneous Indorsement. The widow’s declaration to elect to take an absolute interest in her husband’s estate in lieu of common-law dower is filed when it is lodged in the office of the clerk of the probate court with the intention that it shall become operative as an election under the statute; and the fact that the clerk, on discovering that it had not been marked filed on that date, indorses on it a wrong filing date, does not preclude her or her subsequent grantee from showing the true date of filing. And the probate judge, on discovering the error in the indorsement, has the right to correct it, by making a proper order, so that it will speak the truth. >
    Appeal from Monroe Circuit Court. — Hon. William T. Ragland, Judge. ■ .
    Affirmed.

      Thomas F. Hurd and James P. Boyd for appellants.
    (1) Upon careful reading of the statute it will be seen that there is nowhere any authority given or validity attached to a declaration of an election until after letters testamentary or administration are granted. In the first clause referring to the time when such elections shall he filed in the office of the clerk of the court in which letters are granted, it is stated in this form, “in which letters testamentary shall have been granted,” showing clearly that it was the legislative intent that no such declaration should be filed either in the Recorder’s office in-the probate court until after the granting of letters of administration. Nowhere is there any indication or intimation that, such declaration filed in a recorder’s office prior to the granting of letters of administration would meet the requirements under this statute. The statute could well be said to be in derogation of common law, for the reason that it affords an elective right to the widow which enlarges her rights of dower either under the common law or under the statutory law of this State. Such statutes when giving or extending to one a right not known to common law and not known to the dowery right must be strictly construed. Allen w. Harnett, 116 Mo. 286; Welch v. Anderson, 28 Mo. 299; Wash. v. Wash, 189 Mo. 361; Daudt v. Musick, 9 Mo. App. 175. (2) There is no áffirmative evidence that the widow ever requested anyone to file the declaration in the probate office; in fact the probate judge received the paper from the Recorder’s office and laid it around his office until his attention was called to it by Mr. Puller a few days prior .to the hearing of this case, and it never was, within the meaning of Section 325, filed with the clerk of the probate court for the purpose of being recorded in that office. It certainly could give no notice to anyone of its being filed when no filing’ mark appeared upon it; it was simply a stray paper, part of the time with the papers, and part of the time not with them.

      W. E.- Whitecotton and E. T. Fuller for respondent.
    (1) It is conceded that the rights of the widow in cases like the one at bar was based upon Sec. 351, R. S. 1909, and the method of making her election was prescribed by Sec. 355, Laws 1913. (2) In dealing with tbe rights of tbe widow to share in her deceased husband’s estate, tbe courts have uniformly given liberal constructions in ber favor. In re Estate of Messer-smith, 264 Mo. 610, 619; Keeney v. McVoy, 206 Mo. 42, 55; Chrisman v. Linderman, 202 Mo. 614. (3) Tbe filing of an instrument is tbe actual delivery of tbe paper to tbe clerk without regard to any action that be may take thereon. If tbe clerk commits a clerical error, or makes a mistake in reference to tbe time at which be received tbe paper, that will not make any difference. He may indorse upon it tbe wrong date, or an impossible date, and still» tbe real date of tbe filing will be tbe same. Tbe indorsement, though required to be made by tbe clerk when be receives a paper, does not constitute tbe filing of tbe same. Grubbs v. Cones, 57 Mo. 83; Baker v. Henry, 63 Mo. 519; Eailroad v. Turner, 177 Mo. App. 454; Bennett v. Hall, 184 Mo." 420; Dor-rance v. Dorrance, 242 Mo. 625, 641; State v. Pieski, 248 Mo. 715, 719. (4) Tbe widow’s rights, under Sec. ,351, E. S. 1909, vests upon tbe death of ber husband, and ber right of election dates from and originates in his death. Section 355 is in a manner a statute of limitation. Tbe granting of letters starts tbe limitation to running against tbe right to elect. But tbe granting of letters is not a condition precedent to tbe right.
   HIGBEE, P. J.

This is an action for partition. Tbe petition, filed October 23, 1918, states in substance that John M. Hawkins died June 17, 1917, intestate and without issue, seized in fee of 41 acres m Monroe County, leaving bis widow, Willie A. Hawkins, and seven brothers and sisters surviving him as bis only heirs; that tbe widow, on July 12, 1917, duly executed and filed in tbe Eecorder’s office ber election to take one-half of all tbe real and personal estate of ber deceased husband, according to tbe provisions of Section 351, Eevised Statutes 1909, and thereafter, on October 8, 1917, she conveyed all her interest in said real estate to plaintiff; that Henry M. Hawkins, a brother of the deceased, also conveyed his interest in said land to plaintiff,- and that by reason of the foregoing plaintiff is entitled to eight-fourteenths of said real estate and the homestead interest of Willie A. Hawkins, and that the defendants, the other brothers and sisters of the deceased, are each entitled to one-fourteenth interest therein; all subject to said homestead.

The answer denies that the widow made a valid election to take one-half of the real and personal estate of her deceased husband, and avers that the defendants are each entitled to an undivided one-seventh interest in said land, subject to the homestead of the widow, and that the plaintiff is entitled to a one-seventh interest (being that purchased from Henry M. Hawkins) and that he is the owner of the dower and homestead int,crest of the widow, but admits all the other averments of the petition. The court found the facts as stated in the petition and rendered an interlocutory judgment for partition and for the sale of the land as prayed in the petition, from which the defendants appealed.

On the trial plaintiff offered in evidence the widow’s declaration of election, to which the defendants objected on the ground that it showed on its face that it was executed and-filed in the Recorder’s office “before any administration opened; shows on its face that it was filed after the administration closed and after the time for filing in the probate court expired. ’ ’ Penn Brace, probate judge, was called by the plaintiff and testified that he wrote the declaration and took Mrs.' Hawkins’s acknowledgment thereto on July 12, 1917; that letters of administration were issued July 30, 1917, and the declaration was filed in the Recorder’s office July 12th, the day it was executed. “It was actually filed in the probate court July 30, 1917, the day that the letters were taken out; the mark was put on the paper the other day. It was last Monday.” The declaration was then read in evidence over the defendants’ objection.

The declaration was endorsed as filed in the probate court July 30, 1918. Judge Brace, being recalled, testified that Mrs. Hawkins, who was in feeble health, and Mr. Hayden, who was looking after her business in all matters, came to his office July 12, 1917; they estimated the amount of the personal estate of the deceased would not be more than what the law allowed the widow as her absolute property. No administration was contemplated at that time. “I suggested the filing of this election, and it was on that advice that it was filed in the Recorder’s office. Judge Hurd was in the office, I think last Saturday, and was looking for this paper, and I had changed the papers when the final settlement was made before distribution and it was in the box where originally kept. I then discovered there was no filing mark on the paper, although it had been lodged in the office at all times during the administration and was before the court and the court had cognizance of it at all times. Mr. Fuller discovered this fact. At his suggestion on last Jdonday, the court being in session, I made an order on my minutes ordering this to be filed as of July 30, 1917, at which time it was lodged in the court. Mr. Hayden left it with me on July 30, 1917; filed there to go into the record of the court. It was then in my possession officially as probate judge and with the papers on that date.”

By Judge Hurd: “Q. Well then, you don’t remember whether this was delivered to you before the 30th of July or not? A. It positively was, but not in my official capacity.

“Q. Did you ever have a request from Mrs. Hawkins to file that election in your court? A. I take it that I did.. The filing mark 1918 is an error; it should be 1917.”

This is a fair summary of all the evidence.

I. Under Section 321, Revised Statutes 1919 (Sec. 351, R. S. 1909, as amended Laws 1913, p. 90), Mr. Hawkins having died without issue, his widow had a vested right to elect to take one-half of the real and personal estate belonging to her husband at the time of his death, subject to the payment of his debts. Section 325, Revised Statutes 1919, (Sec. 357, R. S. 1909), requires the declaration of election to be filed in the office of the clerk of the court in which letters testamentary or of administration shall have been granted within six months after the grant of same; and such declaration shall also be filed in the Recorder’s office of the county in which letters testamentary or of administration were granted within nine months after the grant of the same, otherwise the widow shall be endowed under the provisions of the preceding sections of Article 15. It is contended by the appellant that the widow’s election is unauthorized and void under the statute, it having been made and filed in the Recorder’s office before the granting of letters of administration. In other words, it is contended that the true meaning of the statute is that the right of election is suspended and must wait upon the granting of letters testamentary or of administration, and that the declaration is a nullity if filed before their issue. We cannot agree to this theory. Section 2, Revised Statutes 1919, provides that the probate court may refuse to grant letters of administration on the estates of deceased persons not greater in amount than is allowed by law, as the absolute property of the widower, widow or minor children under the age of eighteen years. At the time Mrs. Hawkins made her election the probate court, having this section in view, did not contemplate the granting of letters. They were issued a few days later at the instance of the brothers and sisters of the deceased.

In many instances the heirs of deceased persons prefer to settle estates without the annoyance and expense of an administration. This they have a perfect right to do. In all such cases, if appellant’s contention Be right, it would follow that the widow’s right of election woüld be cut off. The statute is remedial and should be liberally construed so as to accomplish its evident purpose. The common sense construction of Section 325 is that it is a statute of limitation. This court has 'so construed this section of the statute.

In Keeney v. McVoy, 206 Mo. 42, l. c. 60, Lamm, J., said: “These statutes may be said, in a sense, to be statutes of limitation on a widow’s right to elect. The limitation begins to run when letters of administration are taken out on her husband’s estate, and ends twelve or,fifteen months thereafter.” At page 55, Judge Lamm also said': “It has been aptly said that the part taken by the widow under her right of election is her ‘ election dower, ’ i. e., her dower from choice as distinguished from her dower without choice. [Citing cases.] And, as has been said, we see no reason why the grace and favor of -extremely liberal construction, indulged in aid of common law dower, may not be indulged in aid of election dower; nor why an illiberal and sour construction should he invoked to defeat the latter any more than the former. The law favoreth life, liberty and dower. [14 Bac. 345.] And election dower may well repose in the bosom of this friendly maxim. ”

Appellant’s contention is too technical. It would, in many instances, thwart the very purpose of the statute. Qui haeret in litera, haeret in cortice.

II. It is also contended that the declaration of election was not filed in the office of the clerk of the probate court, within the statutory period. The evidence is clear that it was filed in that office on July 30, 1917, notwithstanding the fact that Judge Brace-failed t0 g0 indorse it at the time. It was filed when it was lodged m the proper office with the intention that it should become operative as an election under the statute. Nor does the fact that Judge Brace thereafter, by mistake, indorsed a wrong date of filing on the paper preclude plaintiff from showing the true date. Judge Brace had the right, when he discovered the error, to correct it so that it would speak the truth. [Grubbs v. Cones, 57 Mo. 83; State v. Pieski, 248 Mo. 715, 719.] The objection to the admission of the declaration in evidence was properly overruled.

No other errors are complained of in appellant’s brief. The evidence clearly warranted the learned trial court in finding the issues for the plaintiff. The judgment is affirmed and the cause remanded for further proceedings.

All concur.


author: WALKER, J.

text:
    MISSOURI BRIDGE & IRON COMPANY, Appellant, v. PACIFIC LIME & GYPSUM COMPANY et al. MISSOURI BRIDGE & IRON COMPANY v. PACIFIC LIME & GYPSUM COMPANY et al., Plaintiffs in Error.
    Division Two,
    November 19, 1921.
    1. RES ADJUDICATA: Sufficient Petition: Arbitration. A former ruling that allegations in a petition in the nature of a bill in equity were sufficient to question the correctness of the arbitrator’s award, is not determinative of the issues whether the trial court subsequently erred in striking from the files a motion filed by-plaintiff to .confirm the arbitrator’s award, or whether it erred in overruling defendants’ motion to stay proceedings or their motion subsequently filed to vacate said award.
    2. PENDENCY OF ANOTHER ACTION: Demurrer: Arbitration: Motion to Vacate Award: Motion to Strike from Files. The pendency of another action between the same parties and involving the same issue is not sufficient to sustain a ruling striking out a motion to vacate the award of the arbitrator, unless the pendency of such other action is made manifest by the face of the motion. A demurrer strikes only at the face of a pleading the sufficiency of which it assails; and if the motion to vacate the award of an arbitrator makes no reference to the pendency of another suit, a motion to strike it out on that account is futile as a demurrer and cannot be sustained.,

      3. APPEAL: Arbitration: Motion to Confirm Award: Prom Order Striking Out. A plaintiff which, files a motion in the circuit court to confirm the award of an arbitrator, is not entitled to an appeal from an order sustaining defendant’s motion to strike said motion from the files. The ruling is not a final disposition of the case, nor does it come within the class of interlocutory orders from which appeals are authorized under the general statute (Sec. 1469, R. S. 1919) or the chapter on Arbitration (Chap. 3, R. S. 1919).
    4. WRIT OF ERROR: Arbitration: Order Sustaining Motion to Vacate Award. A writ of error will not lie to review an order striking from the files a motion by defendant to vacate an arbitration award. The statute (Sec. 616, R. S. 1919) authorizes an appeal or writ of error from an order vacating an award, but it does not authorize either from an order overruling a motion to vacate; and such order, is neither a final judgment .nor such an interlocutory' order as will authorize an appeal therefrom under the general statute (Sec. 1469, R. S. 1919).
    Appeal and writ of error from St. Louis City Circuit Court. — Eon. Wm. T. Jones and Eon. 'Rhodes E. Gave, Judges.
    Writ dismissed.

      Cobbs & Logan for appellant.
    (1) The purpose of our statute, requiring fifteen days’ notice before filing an award, is to give tbe defeated party a cbance to object, and may be waived. Sec. 603, R. S. 1919; 5 C. J. 239;, Brace v. Stacy, 56 Wis. 148. (2.) Tbe statute requiring fifteen days’ notice before filing tbe award in this case was waived by respondents: First. By tbe acknowledgment of “due service of sucb notice.” Second. By a general appearance in tbe same proceedings, and by filing therein a motion to vacate tbe same award. Third. By appearing generally and moving to strike out tbe motions to confirm tbe award, without limiting their appearance to that pujóse.

      M. N. Sale and David Goldsmith for respondents.
    There is no question but that tbe plaintiff failed to observe tbe statutory requirement for tbe service of a copy of the award and of tbe motion for confirmation, and of notice of the filing thereof, npon the defendants at least fifteen days before the filing of the motion for confirmation in the circuit court. (1) The acknowledgment of the service of the motion did not constitute a waiver of the statutory requirement. Donlevy v. Cooper, 2 Nott & McCord (S. C.) 548. (2) Defendants did not enter a general appearance by filing the motion to vacate the award or thereby waived objections to untimely service. Shores v. Bowen, 44 Mo. 396. (3) A motion to dismiss a proceeding for lack of jurisdiction over the person, because of failure of proper service of process, is necessarily a special appearance; for it would be unreasonable to say that a party appears generally in a case, when he moves for the dismissal of the case because the court has no jurisdiction over him. Wabash Western Ry. v. Brow, 164 U. S. 271; Houlton v. G-allows, 55 Minn. 444, 445; Schlesinger v. Good Samaritans, 121 Minn. 147; Law v. Nelson, 14 Colo. 412. ■ . '

      M. N. Sale and David Goldsmith for plaintiffs in error.
    The trial court erred in sustaining the motion of the defendant in.error to strike from the files the motion of the plaintiffs in error to vacate the afores'aid award. The said ruling was erroneous' and this follows necessarily from the ruling of this court in the case of Pacific Lime & Gypsum Company v. Missouri Bridge & Iron Company, 226 S. W.- 853, a case which involved the very same award as the case at bar. In, that case, this court held that the petition in that case sufficiently alleged partiality and misfeasance on the part of the arbitrator; and the very same allegations are made in the motion of the plaintiffs in error to vacate the award, which is now before this court upon the present writ of error.

      Cobbs & Logan for defendants in error.
    (1) The decision in Pacific Lime & Gypsum Co. y. Missouri Bridge & Iron Co., 226 S. W. 853, is not controlling in this case, (a) Because other and different questions are here involved, (b) Because we bad in that case a general bill in equity, while here we have a motion to vacate filed under our statute, which must be tested by the terms of our statute, (c) Because this court in the equity case considered only the sufficiency of the allegations as alleged in the bill. The bill set out only parts of the contract and award. Here we have the entire contract and the entire award. The sufficiency ' of the motion to vacate is to be tested not only by the terms of the statute, but in connection with the terms of the entire contract and entire award. (2) The pen-dency of another action between the same parties for the same cause in this State was sufficient ground for sustaining the demurrer, or motion to abate, dismiss or strike out. The record in this case shows the pendency of such an action. Sec. 1226, R. S. 1919. (3) Section 606, R. S. 1919, requires “ten days previous notice in writing” before filing a motion to vacate an award. No. such notice was given and, if it cannot be waived, the failure to give such notice in this ease was good ground for sustaining the demurrer to, or motion to abate, dismiss or strike out the motion to vacate the award. (4) The motion to vacate the award in this case was filed under our statute. Its sufficiency must be tested by the provisions of that statute. The allegations of the motion to vacate, when taken in connection with the provisions of that statute, and the terms of the contract and award, are wholly insufficient to justify the vacating of the award under the statute. Sec. 604, R. S. 1919; Taylor v. Scott, 25 Mo. App. 249; Reeves v. McLaughlin, 65 Mo. App. 537; Shawhan v. Baker, 167 Mo. App. 34; Bennett’s Admr. v. Russell, 34 Mo. 524; Yaughn v. Graham, 11 Mo. 367.
   WALKER, J.

Each of these cases grows out of the same arbitration and involves the award of the same arbitrator. In April, 1914, the parties hereto entered into a contract of arbitration, and appointed Mr. C. B. Williams as arbitrator. In December, 1915, the arbitrator signed and published his award. In January, 1916, the Missouri Bridge & Iron Company filed said award in the Circuit Court of the City of Saint Louis; and on the same day said company filed its motion to confirm said award, together with the acknowledgments of the Pacific Lime & Gypsum Company and the Acme Cement Plaster Company of service of the filing of said motion to confirm. In February, 1917, the Pacific Lime & Gypsum 'Company and the Acme Cement Plaster Company filed a motion in said circuit court to strike from the files the motion of the Missouri Bridge & Iron Company to confirm said award. In June, 1917, the Circuit Court of the City of St. Louis sustained the motion to strike from the files the motion of the Missouri Bridge & Iron Company to confirm said award. In September, 1917, the Missouri Bridge & Iron Company appealed to this court from said order of the circuit court striking from the files its motion to confirm the award of said arbitrator. The foregoing .epitomize the proceedings in the first above entitled case.

In January, 1916, the Pacific Lime & Gypsum Company and the Acme Cement Plaster Company filed a motion in the Circuit Court of the City of Saint Louis to vacate the award of the arbitrator above referred to. This motion was continued from term to term until February, 1917, when it was amended by movents striking therefrom a certain allegation in regard to the insufficiency of the attestation of the award. In January, 1918, the Pacific Lime & Gypsum Company and the Acme Plaster Company filed a motion to stay proceeding, which motion was by the circuit court, in May, 1918, overruled. A few days later these two companies filed a mo-. tion to set aside the order overruling their motion to stay proceedings, which motion was in June, 1918, overruled. Thereupon, in June, 1918, the Missouri Bridge & Iron Company demurred to or moved to strike from the files the motion theretofore filed by the Pacific Lime & Gypsum Company and the Acme Cement Plaster Company to vacate the' award of said arbitrator. This demurrer was by the Circuit Court, in July, 1918, sustained, and said motion to vacate ordered stricken from the files. In June, 1919, the Pacific lame & Gypsum Company and the Acme Cement Plaster Company applied to the Supreme Court and was granted a writ of error from the ruling of the Circuit Court striking their motion to vacate from the files. The foregoing epitomizes the proceedings in the second above entitled case.

I. There is nothing in the ruling of this Court in Pacific Lime & Gypsum Company v. Missouri Bridge & Iron Company (226 S. W. 853) determinative of the matter at issue. In that case the only question involved was the sufficiency ot the petition in the nature of a bill in equity. We held that its allegations were ample to question the correctness of the arbitrator’s award. In so doing it was neither necessary or proper to pass upon the merits of the case, and it is foreign to any reasonable interpretation of our ruling to so conclude.

II. The pendency of another action between the same parties hereto involving the same issue as at bar, is urged in support of the ruling of the circuit court in striking out the motion to vacate the award. It is true that the statute (Sec. 1226, E. S. 1919) prescribes as one of the grounds of demurrer the pendency of another action between the same parties for the same cause. A demurrer, however, strikes only at the face of a pleading the sufficiency of which it assails. The motion to vacate the award constitutes the pleading here^demurred to. It nowhere contains a reference, much less an allegation, concerning the pendency of another suit between these parties. So far, therefore, as regards this alleged insufficiency of the pleading to vacate, the motion to strike the same out is futile as a demurrer. A like criticism, with a proper observance of the rules of pleading, may be made against the motion, if regarded as a demurrer, to that leveled against the speaking demurrer in the Pacific Lime & Gypsum case (226 S. W. 855), which sought to assail, on its own allegations, the integrity of a pleading regardless of the facts pleaded in the latter. While a party aggrieved by an award has a right to file a demurrer to a motion for a judgment on such award, the grounds for the demurrer must appear in the motion, otherwise it will not lie. If the motion does not present such grounds then the proper order is to overrule the demurrer and not to strike it from the files as was done in the case at bar. [Shores v. Bowen, 44 Mo. l. c. 400; Hinkle v. Harris, 34 Mo. App. l. c. 232.]

III. The appeal of the Missouri Bridge & Iron Company is from the order of the circuit court sustaining a filed by the Pacific Lime & Gypsum and the Acme Cement Plaster companies to strike from the files the motion of the Missouri Bridge & Iron Company to confirm the award. This order did not result in a final disposition of the case and it was followed by no judgment having that effect, or, in fact, by any judgment. The court’s ruling does not come within the class of interlocutory orders from which appeals are authorized either under the general statutes (Sec. 1469, R. S. 1919) or the chapter on arbitration (Chap. 3, R. S. 1919). There is,' therefore, nothing for us to review. The appeal was unauthorized and it is dismissed.

IY. A like condition of the record confronts us in the review we are asked to make of the case brought up by writ of error by the Pacific Lime & Gypsum and the Acme Cement Plaster companies. The order of the circuit court in this case was to sustain a demurrer filed

by the Missouri Bridge & Iron Company fiy striking from the files the motion of the said companies to vacate the award. This ruling partakes neither of the form or nature of a final judgment and is not such an interlocutory order as will authorize an appeal therefrom (Sec. 1469, R. S. 1919). While the statute (Sec. 616, R. S. 1919) authorizes an appeal or writ of error from an order vacating an award, such order being in the nature of a judgment, it does not authorize an appeal from an order overruling a motion — whether in the nature of a demurrer or otherwise — to vacate an award. The reason of this distinction is obvious. The sustaining of the motion to vacate terminates the proceeding and partakes of the nature of a final judgment; the overruling of the motion to vacate is nothing more than an interlocutory order from which the mover may obtain relief, if error, hy preserving exception to the court’s ruling and appealing or suing out a writ of error from the judgment confirming the award. As to the latter right of review, resorted to in this case, it is horn-book law, in our practice, that in the absence of an express statute,- a writ of error will issue only to bring up a final judgment. [Sec. 1485, R. S. 1919; Iba v. Mosman, 231 Mo. 474; Trendley v. Illinois Trac. Co., 241 Mo. 73; Padgett v. Smith, 205 Mo. 122; Hodkins v. Taylor, 59 Mo. 106; Shaw v. Dinwiddie, 53 Mo. 132; Cowhick v. Jackson, 157 Mo. App. 514.] There being no final judgment, the allegation in the petition for a writ of error addressed to this court, and upon which this proceeding for a review is based, that “the order of the circuit court” overruling the motion to vacate the award “was a final order or judgment,” not being founded on fact, the issuance of the writ was unauthorized. It should, therefore, be dismissed.

It is so ordered.

All concur.