source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    THE STATE ex rel. CORNELIUS B. BAKER et al. v. DANIEL E. BIRD et al.
    In Banc,
    December 24, 1913.
    1. PROBATE COURTS: Jurisdiction: Equitable Matters and Proceedings. No attempt has been made, in either the Constitution or statutes, to grant general chancery powers to probate courts, and it must be conceded that such courts possess only such powers as have been granted to them by the Constitution and statutes, together with such implied powers as are necessary to effectuate those expressly granted. Probate courts should be permitted to invoke equitable principles' in adjudicating all issues which by the Constitution or statutes • are expressly confided to their care; but they do not have jurisdiction to entertain a suit or proceeding whose sole oasis is a demand for equitable relief, even though such relief would incidentally pertain to some matter of probate jurisdiction.
    2. -: —-: -: Guardians: Revoking Appointment. A probate court has no authority to hear and determine an action in equity to revoke the appointment of a guardian of a minor, duly appointed, in order to give place to a more suitable person. Hence any petition lodged in the probate court having for its object the revocation of a 'guardian’s appointment must be treated as an action at law.

      S. -: -: -: Transfer by Appeal to Circuit Court: Change of Nature of Action. The nature of an action is not changed by its transfer by an appeal from one court to another. Hence, if the probate court had no authority to entertain a petition to revoke the appgintment of a guardian of a minor on equitable grounds, the circuit court,1 though possessing chancery powers, cannot enter any judgment that the probate court was without power to enter.
    4. GUARDIAN: Removal: For Religious Views. The statute prescribes that guardians of minors may be removed for like causes for which administrators of estates may be removed; and the statute concerning the removal of administrators does not contain any intimation that a guardian may be removed because his religious views are not the same as those of the minor’s deceased parents. The words .of the statute authorizing the removal of an administrator if he “become in any. wise unsuitable to execute the trust reposed in him” apply to some impairment of suitability which may arise after his appointment. They do not authorize the removal of a guardian who was not a Roman Catholic at the time of his appointment, on the sole ground that the minor's deceased parents were Roman Catholics.
    5. -: -: For Other Good Cause. Section 424, R. S. 1909, authorizing the court to require guardians to give supplemental security or new bonds “as is authorized by law in the case of administrators, and in default thereof or for other good cause to remove them,” refers to some neglect or omission of duty by the guardian after his appointment, and it would be a strained construction to hold it authorizes the removal of a guardian on the ground that he was at the time of his appointment and is now of, a different religious faith and persuasion from those of the ward’s deceased parents.
    6. -: -: -: Religious Test Unconstitutional: Public Trust. But even if said section 424 authorized a removal of a guardian on the ground that his ward’s parents were, and he is not, a Roman Catholic, it would be obnoxious to section 5 of article 2 of the Constitution which declares that “no person can, on account of his religious opinions, be rendered ineligible to any office of trust or profit under this State,” for the position of a guardian charged with the care, maintenance and education of a minor is' an “office of trust under this State,” since guardians of minors receive their appointment through and under State laws, and hold their trust “under this State.” It is impossible in view of this constitutional provision to apply a religious test in appointing a person to or rqjnoval from a position of trust or profit “under this State.”

      7. -: -: Guardian of Same Religious Persuasion. Section 420, R. S. 1909, declaring that “a minor shall not be committed to the guardianship of a person of religious persuasion different from that of the parents, or of the surviving parent of the minor, if another suitable person can be procured,” applies to the religious faith of parents who may be living when the appointment of the guardian is made, and not to the religious persuasion of parents who are dead. The custom prevailing in probate courts of appointing guardians of the same religious faith as that of the minors’ deceased parents is a good one, but this statute does not authorize the removal of a guardian already appointed, on the sole ground that his religious faith is different from that of the minor’s deceased parents.
    8. -: -: -: Shifting of Minors from Family to Family: Value of Affection for Children. The very strong affection which quickly springs up .between a guardian who has received an orphan child into his home and the object of his protection and benevolence, is usually a safe and strong guaranty for the kind and considerate treatment for which the State is much concerned; and a child once legally placed in a home of affection and moral training should not be removed therefrom, nor its guardian replaced by another, except for the most cogent reasons. It is highly detrimental to the welfare of small children to shift them from family to family.
    9. APPEAL: Supersedeas: Revocation of Appointment of Guardian! An appeal to the circuit court from an order of the probate court revoking the appointment of a guardian, and appointing another in his stead, suspends the order until the appeal is disposed of; and likewise an appeal from the judgment of the circuit court confirming said order, to the proper appellate court, acts as a supersedeas and suspends said judgment of removal.
    10. -: -: -: Enforcement: By What Court: Contempt. "Where the probate court has made an order revoking the appointment of a guardian of a minor, and appointed another in his stead, and from that order the said removed guardian appeals to the circuit court and there it is confirmed, it becomes the duty of the probate court under the statute (Sec. 297, R. S. 1909) to enforce such order, and the circuit court has no authority to cite for contempt the removed guardian for failing to deliver the minor into the custody of the newly appointed guardian.
    Prohibition.
    Writ allowed.

      E. Wright Taylor for relators.
    (1) The cause on its merits' and the appeal thereof ia,re not now submitted, and argument to the merits is improper. State ex rel. v. Henderson, 164 Mo. 360; Wand v. Ryan, 166 Mo. 648 ; State ex rel. v. Lewis, 76 Mo. 370; State ex rel. v. Dearing, 180 Mo. 62. (2) No jurisdiction is vested in the circuit court on appeal from the probate court to enforce its appellate decision and it is the duty of the circuit, after ‘trying the matter de novo, to certify its findings to the probate, for execution there. R. S. 1909, secs. 294, 296, 297; Branson v. Branson, 102 Mo. 613; State ex rel. v. Henderson, 164 Mo. 347; State ex rel. v. Guinotte, 156 Mo. 520'; Woerner, Am. Law of Adm. (2 Ed.), sec. 547, p. 1202, sec. 549, p. 1208; Rice, Am. Probate Law & Practice, ch. 20, pp. 457, 458', 463. (3) The probate court has exclusive jurisdiction over guardians of minors. Constitution, art. 6, sec. 34; R. S. 1909, sec. 4056; Johnson v. Beasley, 65 Mo. 250; Hoffman v. Hoffman, 126 Mo. 493; Brewer v. Cary, 148 Mo. App. 193. (4) The statute provides fox an appeal and the appeal operates as a supersedeas. R. S. 1909, secs. 463, 291, 292, 294, 2038, 2040, 2042; State ex rel. v. Allen, 92 Mo. 20; Cuendet v. Henderson, 166 Mo. 657; State ex rel. v. Field, 37 Mo. App. 83; State ex rel. v. Collier, 62 Mo. App. 38; King v. King, 73 Mo. App. 78; State ex rel. v. Lewis, 76 Mo. 370; State ex rel. v. Dillon, 98 Mo. 90; State ex rel. v. Hirzel, 137 Mo. 435; State ex rel. v. Klein, 137 Mo. 673; Ryans v. Boogher, 169 Mo. 685; Carroll v. Reid, 158 Mo. 319; Lewellyn v. Lewellyn, 87 Mo. App. 9; State ex rel. v. Wood, 142 Mo. 127; In re Van Loan, 142 Cal. 429; Walker v. Maddox, 97 Ga. 386; Woerner, Am. law of Adm. (2 Ed. 1899), sees. 543, 546, 547, 548, 550; Rice, Am. Probate Law So Practice, pp. 463-468; Church, New Probate Law So Practice (1909), p. 227; Powell, Law of Appellate Proceedings, p. 371; 2 Encv. PL So Pr. 327, and vol. 20, pp. 1240, 1241, 1229.

      Monroe & Roark and Hogsett é Boyle for respondents.
    (1) The substance and meaning of section 420 are that the guardianship of a minor shall not be committed to a person of opposite religious persuasion from that of the parents or surviving parent of such minor, when a'suitable person of like faith is available. This case falls squarely within the spirit and letter of that provision. Voullaire v. Voullaire, 45 Mo. 602; In re D’oyle, 16 Mo. App. 159; In re Kellar’s Minors, 5 Ir. Ch. Rep. 328, 5 Am.- L. Reg. (O. S.) 561; 15 Am. & Eng. Ency. Law, 50, note 4; Everesley’s Domestic Relations, 658; Schouler’s Domestic Relations, secs. 316, 341; Matter of Ann Turner, 19 N. J. Eq. 435 ; Woerner on Guardianship, p. 99 ; Underhill v. Dennis, 9 Paige, 202; In re DeMareelin, 24 Hun, 207; In re McConnon, 112 N. Y. Supp. 590; In re Crickard, 102 N. Y. Supp. 440; In re Jacquet, 82 N. Y. Supp. 986; F. v. F., 1 Chan. Rep. (Eng.) 688. It was contended below by counsel for relators that the statute in question applied only in instances where one or both parents are still living. There is no basis for any such contention. Respondent claims that if the statute should be held to apply it is unconstitutional, for the reason- that it is in conflict with section 5 of 'article 2 of the Constitution. It is apparent from this section of the Constitution that the office or trust referred to therein is ah office or trust of public character, such as, for instance, the office of Governor. It does not refer and obviously was not intended to refer to the appointment of a guardian, or administrator, or receiver, or any office of a similar character, all of which offices are not in the true sense public offices or trusts at all, but are in their nature private offices affecting only the relations of very few persons. 6 Words and Phrases, p. 492-1. This statute was not enacted to prevent but to preserve religious freedom, and to insure and protect religious freedom in its fullest sense. (2) Pending appeal from an order of removal of a guardian Ms right to the custody of the ward is suspended. 21 Cyc. 60; State v. McKown, 21 Vt. 503; Merrells v. Phelps, 34 Conn. 109; Gray v. Park, 155 Mass. 433; State v. Probate Judge, 17 La. 432; Successor of Menendez, 29 La. Ann. 408; Woerner on Guardianships, p. 116; State ex rel. v. Dearing, 180 Mo. 53.
   BROWN, J.

Prohibition in this court to prevent further proceedings by respondent Daniel E. Bird, as judge of the circuit court of Jackson county, 'Missouri, under a citation to plaintiffs for contempt, in failing to deliver a minor into the custody of respondent George A. Dixon, pursuant, to an order entered by said circuit court.

A brief history of the judicial proceedings which resulted in the citation for contempt is necessary to a full understanding of the issues in tMs case.

On July 22,1911, one Charles Dixon, a resident of Jackson county, Missouri, the father and oMy surviving parent of Charles Dixon, Jr., departed this life, without having nominated any person as testamentary guardian of Ms said minor child.

On August 1, 1911, the probate court of Jackson county appointed the plaintiffs, Cornelius B. Baker and Susan M. Baker, his wife, as guardians of the person of the said minor (Charles Dixon, Jr.). Susan M. Baker is the maternal aunt of said minor. The said guardians received said minor into their custody and gave bond for the faithful performance of the trust cast upon them by the law.

On September 25, 1911, á petition was filed in the probate court of said Jackson county praying that the appointment .of plaintiffs as guardians of the person of said minor (Charles Dixon, Jr.) be revoked, for the reason that said guardians were not of the same religious faith or persuasion as the father of said minor. Said petition is in words and figures as follows:

“Now comes Cosmos Dixon, of St. Joseph, Missouri, and Thomas Dixon, Ella Dixon and Louise Dixon, of Junction City, Kansas, and state that they are brothers and sisters respectively, of the late Charles D'ixon, who, at the time of his death on July 22,1911, was and for several years prior thereto, had been a resident and domiciled in Kansas City, Missouri, and that they are, and the deceased, Charles Dixon, at the time of his death and long prior thereto, was of the Roman Catholic faith and persuasion, and that by virtue of these premises said petitioners are interested in the matters herein stated and prayed for.

“That Cornelius B. Baker and Susan M. Baker, husband and wife, were appointed by this court on the 1st day of August, 1911, guardians of the person of Charles Dixon, Junior, an infant eleven years of age, who is the only surviving child of the late Charles Dixon hereinbefore mentioned; that the mother of said infant, Charles Dixon, Junior, departed this life prior to the death of said Charles Dixon. That section 420 of the Revised Statutes of Missouri of 1909, provides that in such cases minors shall not be committed to the guardianship of a person of a religious persuasion different from that of the child’s parent who last survived. That said Charles Dixon, Junior, was baptised and reared in the Roman Catholic faith and persuasion continuously up to the date of the death of the said .Charles Dixon, the parent who last survived. That Charles Dixon, deceased, was of the Roman Catholic faith and persuasion. That neither the above mentioned Cornelius B. Baker nor Susan M. Baker is of the same religious faith and persuasion as that of the late Charles Dixon; that Cornelius B. Baker and Susan M. Baker were appointed without reference to or the attention of this court being called to the provisions of the statute hereinbefore mentioned; that the said petitiomers neither knew of nor consented to the above mentioned appointment; that George Dixon, who is a brother of said Charles Dixon, deceased;, and now is and for many years last past has been a resident and citizen of Kansas City, Missouri, was raised in and during his life has continuously been of the Roman Catholic faith and persuasion, is a person suitable to be appointed guardian of the person of Charles Dixon, Junior, and is willing to accept the guardianship and act as the guardian of the person of said minor, Charles Dixon, Junior.

“Wherefore, your petitioners pray that the letters of guardianship of the person of said Charles Dixon, Junior, issued to the said Cornelius B. Baker and Susan M. Baker, be revoked, and that the order appointing the said Cornelius B. Baker and Susian M. Baker as guardians of the person of said minor be set aside, and1 that said1 George Dixon, or, if for any reason he be deemed unsuitable, some other person of the Roman Catholic faith and persuasion, be granted letters of guardianship of the person of said Charles Dixon, Junior, for the reasons above set forth. And that said letters were granted without reference to or compliance with said statute. And there is a suitable person of the same religious persuasion as the said Charles Dixon, deceased, who is willing to. accept the appointment as guardian of the person of said Charles Dixon, Junior.”

It is conceded by plaintiffs that all the allegations of fact in the foregoing petition are true, except the averment “that petitioners neither knew of nor consented to the appointment of the plaintiffs as guardians.” It is admitted by respondents that John T. Dixon, one of the petitioners, and George Dixon, another brother of the minor’s father, were present in the probate court when the plaintiffs were appointed guardians, and made no objection to said appointment.

The answer of the plaintiffs in the probate court to the petition of Cosmos Dixon et al. avers (1) that said1 petition does not state facts which gave the court jurisdiction to grant the relief prayed for; (2) that the plaintiffs ¡are more suitable to act as guardians of the minor than any other person residing within the jurisdiction of the court; (3) that since plaintiffs were appointed guardians of the minor they have duly adopted him as their son and heir by regular deed of ¡adoption, dated September 19, 1911, and (4) that if section 420, Revised Statutes 1909, should be so construed as to render them ineligible to act as guardians of said minor under their said appointment, said section as thus construed would conflict with section 5, article 2, Constitution of Missouri, and with article 6, Constitution of the United States, and with article 1 and article 14 of the Amendments to said Federal Constitution.

The reply of said petitioners in the probate court alleges that at the time the parents of said minor were married they mutually agreed in writing that such children as might be bom to them should be reared in the Roman Catholic faith, and that George Dixon and his wife were at the time of the baptism of said minor chosen, respectively, its godfather and godmother.

Upon a hearing in the probate court on December 2,1913, the prayer of the petition was granted, and the appointment of plaintiffs as such guardians was revoked, and George A. Dixon appointed in their stead, who thereupon accepted said appointment and gave bond as required by the probate court. >

From the revocation of the appointment the plaintiffs prosecuted an appeal to the circuit court of Jackson county. Upon a hearing of said appeal the order of the probate court was affirmed and the plaintiffs were, by said circuit court, ordered to surrender the custody of said minor to the said George A. Dixon.

After a motion for a new trial, alleging that the circuit court should have sustained a demurrer to the evidence of petitioners, and a motion in .arrest challenging the sufficiency of the petition, were filed and overruled, the plaintiffs prosecuted their appeal to this court.

On April 24, 1913, Cosmos Dixon et al., with George Dixon, applied to respondent Daniel E. Bird for a citation to plaintiffs to show cause why plaintiffs had failed to deliver the aforesaid minor into the custody of George Dixon. The citation was duly issued as prayed.

The petition for prohibition, after reciting the judicial proceedings before enumerated, challenges the right of Daniel E. Bird, one of the respondents, as judge of the circuit court, to cite or punish plaintiffs for contempt in failing to deliver the minor to Charles A. Dixon on the following ground’s:

(1) That the petition of Cosmos Dixon et al., filed in the probate court, states no facts which, if true, would warrant the revocation of the appointment of plaintiffs as guardians of the minor by said probate court or by any other court upon appeal.

(2) That if the judgment of the circuit court were valid it is suspended through the prosecution by plaintiffs of their appeal to this court.

(3) That even if the judgment of the circuit court affirming the order of the probate court is valid and no appeal had been prosecuted' therefrom, the respondent as such judge of the circuit court would possess no power to cite plaintiffs for contempt, for the reason that under section. 297, Revised Statutes 1909', it was respondent’s duty to certify to the probate court a transcript of his judgment and proceedings and leave •the matter of enforcing the judgment or order of’ revocation to said probate court.

The answer or return of respondents asserts the validity of the order of the probate court revoking the appointment of plaintiffs as guardians of Charles-Dixon, Jr., and appointing George Dixon in their stead,, the judgment of the circuit court affirming siaid order of the prohate court, and the citation for contempt issued by respondent Bird.

Said answer further avers that the deed of adoption was not executed by plaintiffs in good faith, but only to strengthen their position in this litigation, and that said deed has no binding force upon respondents.

Plaintiffs filed a motion in this court to strike out certain parts of defendants’ answer, but as the motion was taken with the case and a determination of the action on its merits will dispose of the issues of law raised by said motion, it will not be separately considered.

OPINION.

I. The issues tendered require us to consider the- ' powers and duties of the probate court under whose appointment plaintiffs seek to retain the custody of the minor Charles Dixon, Jr.

By section 34, article 6, Constitution of Missouri,, probate courts are given specific jurisdiction over the-matter of appointing guardians of minors. Our statutes are also confirmatory of that jurisdiction, so that the right of the probate court to make the appointment cannot be questioned.

By sections 34 and 35, article 6, of our Constitution, it is further provided that the General Assembly shall create probate courts with uniform jurisdiction and duties; so that the Legislature was undoubtedly authorized to vest in said courts such additional powers not named in the Constitution as it deemed proper. We find no attempt has been made, in either the Constitution or statutes, to grant general chancery powers to probate courts, and think it must be conceded that such courts possess only the powers granted to them by the Constitution and statutes, together with such implied powers as are necessary to effectuate those expressly granted.

There have been numerous rulings by the appellate courts of Missouri to the effect that probate courts possess no equitable jurisdiction at .all. [Carter v. Bolster, 122 Mo. App. 135; Ivie v. Ewing, 120 Mo. App. 124; Estate of Glover & Shepley, 127 Mo. 153; Jenkins v. Morrow, 131 Mo. App. 288; City of St. Louis v. Hollrah, 175 Mo. 79.] We find that the rule announced in some of the foregoing cases goes rather too far in stripping probate courts of all chancery powers, particularly is .this true of the ease of Estate of Glover & Shepley, 127 Mo. 153, l. c. 163-4.

Probate courts are specifically vested with jurisdiction to do certain things, and we think they should be permitted to invoke equitable principles in adjudicating all issues which by the Constitution or statute are expressly confided to their care. Such is the conclusion reached in the cases, of Lietman’s Executor v. Lietman, 149 Mo. 112; and In re Estate of Jarboe v. Jarboe, 227 Mo. 59. While the rule announced in the two cases last cited is undoubtedly sound law, I am not willing to concede that a probate court has jurisdiction to entertain a suit or proceeding, the sole basis of which is a demand for equitable relief, even though such relief should incidentally pertain to some matter of probate jurisdiction.

The Constitution and the statutes have particularized the several things which may be done by probate courts, and we think their jurisdiction is necessarily confined to such suits and proceedings as they have been granted power to adjudicate.

Learned counsel have not cited us to any constitutional o,r statutory provision which grants to probate courts the power to hear and determine actions in equity to revoke the appointment of guardians, and our own researches have convinced us that no such provision exists. Therefore the law to be applied: in this case is tersely and correctly announced in 21 Cyc. 53, as follows :

“It is a well-recognized rule that the prohate court has no power to remove a guardian except in cases relating to the faithful performance of his trust, or to the sufficiency of the security given him. And where the statute enumerates the grounds on which guardians may he removed, a .removal on grounds not enumerated is unauthorized.”

The doctrine above announced is also sustained by the case of Kahn v. Israelson, 62 Tex. 221, l. c. 226, wherein it is said:

“The removal of a guardian of a minor’s estate, who has been duly appointed, in order to give place to a surviving parent, who has waived such right, is not provided for by the statute; and as the matter is regulated by statute, the courts have no power to engraft upon it a cause for removal not,named in it.”

There is obiter in the ease of King v. King, 73 Mo. App. l. c. 83, which tends to support the opposite view; and the majority opinion in the case of In re Ford, 157 Mo. App. 141, does sustain the views of respondents, but we cannot subscribe to the views expressed in the majority opinions in the two cases last cited.

It is well settled that the nature of an action does not change through its transfer by appeal from one court to another, consequently the circuit court, though a court possessing chancery powers, could not enter any judgment which the probate court was without power to render. [In re Estate of Strom, 213 Mo. l; and Brown v. Glover, 158 Mo. App. l. c. 400.] It follows that the proceeding instituted by Cosmos Dixon et al. must be treated as an action at law.

II. We shall now consider the petition of Cosmos Dixon et al., and ascertain if it contains aiiy averment which constitutes a statutory or constitutional ground for revoking the appointment of plaintiffs.

Section 462, Revised' Statutes 1909, prescribes that guardians may be removed for like causes as administrators of estates.

Section 50, Revised Statutes 1909, enumerates tbe causes for which letters of administration may be revoked, and reads as follows:

“If any executor or administrator become of un'sound mind, or be convicted of any felony or other infamous crime, or has absented himself from the State for the. space of four months, or become an habitual drunkard', or in anywise incapable or unsuitable to execute the trust reposed in him, or fail to discharge his official duties, or waste or mismanage the estate, or act so as to endanger any coexecutor or coadministrator, or fails to answer any citation and attachment to make settlement, the court, upon complaint in writing made by any person interested, supported by affidavit and ten days ’ notice given to such executor" or administrator, as prescribed: in section 280 of this chapter, shall hear the complaint, and, if it finds it just, shall revoke the letters granted. ’ ’

It is needless to say that nowhere in the quoted section is found any intimation that a guardian may be removed because his religious views are not the same as those of the parents of his ward.

Respondents’ learned counsel contend that the words “become . . . unsuitable to execute his trust” should be construed so as to disqualify plaintiffs from acting as guardians of a ward whose parents were of a different religious faith from plaintiffs. We find this insistence is wholly untenable. The quoted words clearly apply to some disability or incapacity -which may arise after the appointment. In the case in judgment it is not averred that the religious views, or the moral or financial condition of plaintiffs, have, in any respect, changed since their appointment.

III. The only other statute which deals with the powers of probate courts to remove guardians is section 424, Revised Statutes 1909. This sec-^l0n> afte.r prescribing that guardians must be twenty-one years of age and give bond for the faithful performance of their duties, provides that such guardians .may also be required to give supplemental security or new bonds “as is authorized by law in the case of administrators, and in default thereof or for other good cause to remove them. ’ ’

It would certainly require a, very strained' construction of the last quoted statute to authorize a removal for the cause charged in the petition of Cosmos Dixon et al. We think the legislative intent, as expressed in this section, pertains to some negligence of duty or omission of which the guardian has been guilty subsequent to his appointment. But should section 424, supra, be construed so as to authorize the probate court to remove a guardian because of his religious views, that construction would undoubtedly render said section obnoxious to section 5, article 2, Constitution of Missouri, which, among other things, declares that “no person can, on account of his religious opinions, be rendered ineligible to any office of trust or profit under this State.” Respondents insist that the guardian of a minor is neither an officer, nor in a position of trust within the purview of our Constitution, but in this contention they are in error. That a. person charged with the care, maintenance and education of a minor possesses a very important trust cannot be logically gainsaid. In fact, section 462, Revised Statutes 1909, providing for the removal of guardians, specifically designates the position as a trust and as an office.

The Constitution does not say, nor mean, that the trust must be a, public one — it is only necessary that it be a trust under this State.

The-only ease directly in point, to which onr attention has been called, is Maxey v. Bell, 41 Ga. 183, in which ease, under a Constitution prescribing that no one shall be “ prohibited from holding any public office or trust on account of his religious opinions,” it was directly held that the office of guardian is a public trust, and that no man can be incapacitated for that trust by reason of his opinions.

Guardians of minors receive their appointment through and under State laws, and as their powers and duties are prescribed by our statutes it necessarily f allows that they hold their trust under this State. It is possible to apply a religious test in electing or appointing a person to a position of trust or profit, and such test could also be applied in a proceeding to remove him, but no such test, under our Constitution, can be legally applied at any time.

IV. Respondents seem to base their main hope of success in this case upon section 420, Revised Statutes 1909, which read's as follows:

“A minor shall not be committed to the guardianship of a person of religious persuasion different from that of the parents, o.r of the surviving parent of the minor, if another suitable person can be procured, unless the minor, being of proper age, should so choose. ’ ’

Their insistence is that Charles Dixon, Sr., being a Roman Catholic, and his death occurring subsequent to that of his wife, it became the absolute duty of the probate court to revoke the appointment of plaintiffs and appoint some other person of the Catholic faith in their stead, if any suitable Catholic could be found.

Said section 420, supra, is just a little vague, but we think it clearly applies to the religious faith of parents who may be living when the appointment of a guardian is made, and not to the religious faith or persuasion of parents who are dead.

The words “or surviving- parent” unmistakably refer to ¡a. living person, and not to one who has passed away. The word “surviving” means: “remaining alive, existing.” [Webster.] This statute was probably enacted out of deference to the feelings of parents who may be-placed in such unfortunate circumstances that they are forced to part with the custody of their children.

It is difficult to see how the State could be interested in perpetuating the same religious views from one generation to another.

The State looks with benevolent eyes upon all forms of religious- worship, as witness the fact that it exempts church property from taxation, but the State cannot directly lend its aid toward perpetuating any form of religion, or throw any impediment in the pathway of any system of religious worship, without violating at least the spirit of our organic law.

That the State is deeply interested in the education of all its youths, is evidenced by the fact that it exempts from taxation all schools, whether secular or sectarian, and expends millions of dollars annually in free secular education. It' is also interested in having-all of its children reared in a good moral atmosphere, to the end that they may not become criminals or paupers, and has enacted may statutes- expressive of that desire; but the State has not undertaken and cannot, under our present Constitution, undertake to decide what form of religious instruction is best for any person.

Courts, when so directed, will undertake to decide what kind of conduct is consonant with good morals, but they should never attempt the more delicate and difficult task of determining what form of religious teaching is most likely to promote good morals or good citizenship. In fact, they could not do so without invading the domain of private conscience, and undermine, if not destroy, the inestimable blessings of religious liberty.

To give section 420, supra, the eonstriiclion which respondents contend for would he to render it obnoxious to the Constitution. Said section is clearly directory, and more precisely speaking we think it is only advisory.

We are aware of the custom prevailing in our probate courts of appointing guardians for minors of the same religions faith as their deceased parents. We think it a good custom and worthy of continuance. When some one of the same religious faith as the parents of a minor (whether those parents be living or dead) offers his services as guardian, and such person is as suitable from the standpoint of good morals and ability to administer the sacred trust of guardian as any other person willing- to take the same responsibility, the appointment of the person having the same religious faith as the ward’s parents is in nowise objectionable; but the moral, social and financial welfare of the minor are paramount to its religious instruction.

There is no statute authorizing” the revocation of the appointment of plaintiffs as attempted by the probate court of Jackson county, and there is a very potent reason why there ought not to be any such law or any such custom. It is highly detrimental to the welfare of small children to shift them around from one family to another.

Y. When a helpless infant is confined to the care of any person possessing the ordinary instincts of civilization, a very strong affection quickly springs up between the protector and the , , t, . , subject or his or her benevolence. This affection is usually a better and safer guaranty for kind and considerate treatment of the child than any bond or written law which the hand of man can formulate. When a child is legally placed in a home where it receives good treatment and moral training, it should never be removed from that home, except for the most cogent reasons.

The State is very solicitous that its youths, who from any cause or mischance have been deprived of the beneficient influence of parental care, shall acquire good homes and the best possible opportunities to equip themselves for t-he grave responsibilities of good citizenship. By its charters and exemptions from the burdens or taxation the State has encouraged charitable persons to enter upon the regular business of providing temporary homes for orphans and neglected children, and placing those children under the guardianship of respectable people as fast as suitable opportunities can be found for so placing them. Such children, when accorded the benefits of comfortable and uplifting surroundings, often become very useful citizens. If the writer is correctly informed the present Governor of one of our great commonwealths and the mayor of one of our leading cities were once nameless waifs, but were reared and started on the road to usefulness and fame by persons not bound to them by any tie of consanguinity.

If it were lawful to revoke the appointment of guardians who have taken minors into their homes ilpon a simple showing that the religious views of the guardian are different from the religious opinions entertained by the parents of the minor, this would, in my judgment, most seriously interfere with the matter of providing homes for orphans. Few people: would assume the responsibility of undertaking to rear such children under a rule of law such as the respondents contend for in this case.

Respondents ’ resourceful counsel have cited many authorities (mostly the rulings of chancery courts) tending to support the contention that plaintiffs, on account of their religious views, are ineligible to act as guardians of Charles Dixon, Jr. In the case of In re McConnon, 112 N. Y. Supp. 590, and In re Jacquet, 82 N. Y. Supp. 986, it is expressly held that courts exercising probate jurisdiction can and ought to revoke the appointment of guardians upon a showing that the parents of their wards were of a different religious faith from that of the guardians. Those rulings are not applicable here, because based upon a constitution and statutes entirely different from o<urs.

That provision of the New York Constitution regarding the subject of religious liberty reads as follows :

“The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State to all mankind; ¡and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall'not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.” [Art. I, sec. 3, Birdseye’s Cumming & Gilbert’s Consolidated Laws of New York (1909), p. 38.]

T see nothing in this New York Constitution which would prevent the General Assembly of that State from applying a religious test in the appointment of guardians; no,r does there seem to be anything to prevent the courts of that State from doing likewise, when they possess the temerity to do so. I do not approve the rule in the cases above cited.

If this country had adopted a State religion and ordained that all orphans should be instructed in the principles of such religion, then the contention of respondents would be sound, but, under the Constitution and laws of Missouri, we cannot sustain the action of the probate court in revoking the appointment of plaintiffs.

VI. Plaintiffs insist that respondents ought to be prohibited from proceeding further against them under the citation for contempt, because the appeal to this court supersedes and suspends the judgment of the circuit court. Section 463, Revised Statutes 1909, found in the article of the statutes relating to guardians and curators of minors, is as follows:

“Appeals shall he allowed from any final order or judgment of the probate court under this article, at any time during the term, or within six months thereafter, in like manner and with the same effect as appeals are allowed in cases of administration, of the estates of deceased persons. ’’

The order of the probate court removing plaintiffs as guardians was just as final as to them as any order or judgment the probate court could render. If not reversed on appeal it terminated entirely their relations to the minor as his legal custodian. [State ex rel. Spickerman v. Allen, 92 Mo. 20; Cuendet v. Henderson, 166 Mo. 657.]

It will be observed that the last quoted section recites that the appeal therein provided for shall have “like effect” as in the case of administrators. This can mean nothing else than that the appeal from an order of the probate court revoking a guardianship shall operate in the same manner and with like effect as an appeal from an order revoking letters of administration.

Section 289, Revised Statutes 1909, prescribes that an appeal may be granted from an order revoking letters of administration; and section 294, Revised Statutes 1909, provides that such .an appeal shall only act as a supersedeas in the very matter from which the appeal is taken. These' statutes when read together, as the General Assembly intended they should be, by making section 463 a part of sections 289 and 294, supra, mean that an appeal by a guardian from an order revoking his appointment suspends the order until the appeal is-disposed of.

Upon appeal from the circuit court to this court the appeal operates as a supersedeas under the very words of the statute. [Secs. 2038 and 2042, R. S. 1909.] Respondents strenuously insist that the appeal of the plaintiffs does not operate as ,a supersedeas, citing: State v. McKown, 21 Vt. 503; Merrells v. Phelps, 34 Conn. 109; Gray v. Parke, 155 Mass. 433; State v. Judge of the New Orleans Probate Court, 17 La. 432; and Succession of Menendez, 29 La. 408. Decisions regarding the appellate practice of other States are no criterion for us. Laws relating to appeals are creatures of the statute, pure and simple. [Owens v. Mathews, 226 Mo. 77; Western Tie & Timber Co. v. Naylor Drainage Dist. Co., 226 Mo. 420, l. c. 441.] When, as in this case, our General Assembly has spoken we need look no further. Unambiguous statutes‘furnish their own reasons for their existence. [Gist v. Rackliffe-Gibson Construction Co., 224 Mo. 369, l. c. 388.] Respondents earnestly insist that cases may arise where a guardian is shamefully abusing his ward, or subjecting such ward to the most immoral influences, and yet if an appeal acts as a supersedeas the guardian can continue any sort of evil treatment to which he may see fit to subject his ward, by merely taldng an appeal.

There is no charge of any kind of abuse of the ward by plaintiffs, and it is usually safe for courts, like individuals, to cross bridges when they are reached in the ordinary course of travel. We decline to announce what our views would be in a hypothetical or imaginary case, but will, in a general way, refer respondents to article 2, section 10, of the Constitution of Missouri. In a recent case we sustained the action of a trial court (possessing chancery powers) in appointing a receiver for property, notwithstanding the fact that the preservation of said property was, at that time, partially, though not fully, protected by an appeal bond. A court with an arm long enough to reach out and conserve property, can doubtless also conserve good morals and human life whenever the same are in peril.

VII. Another proposition which we are called upon to consider is the contention of plaintiffs that if they are guilty of contempt of any court, it is the probate court and not the circuit court. °f Jackson county. Section 297, Revised Statutes 1909, reads as follows:

“The clerk of the circuit court or other court shall certify a transcript of the record and proceedings and the original papers to the court whence the appeal was taken, who shall proceed according to the decision of the cdreuit court. ’ ’

From the very words of the foregoing statute it is apparent that the circuit court should not have attempted to execute such a judgment as respondent Bird entered in the proceeding to revoke plaintiffs’ guardianship.

The act of certifying a transcript of a judgment of the circuit court to the probate court in a case like this is intended as an official notice to the latter court of the result of the appeal in thé circuit court, the same as a mandate of this court is a notice to the trial court of the disposition of an appeal to this court; and when an order of the nature now in judgment is affirmed by the circuit court, it becomes the diuty of the probate court, and not of 'tire circuit court, to enforce such order.

■ Plaintiffs also insist that the citation of respondent Bird is invalid on the further ground that plaintiffs’ deed of adoption entitles them to retain the custody of the minor.

Having found that the attempted revocation of the appointment of plaintiffs as guardians of Charles Dixon, Jr., is illegal and void, we decline to determine the legal effect, if any, of the deed of adoption.

Pursuant to the views expressed in this opinion, it is ordered that the temporary rule in prohibition heretofore granted by this court be made permanent.

Lamm, C. J., Woodson, Walker and Faris, JJ., concur: Graves, J., concurs in result; Bond,, J., dissents.


author: BOND, J. GRAVES, J.

text:
    UNION ELECTRIC LIGHT AND POWER COMPANY v. CITY OF ST. LOUIS, Appellant.
    In Banc,
    December 24, 1913.
    ABROGATION OF ORDINANCE: Repeal of Statute Upon Which Founded: Regulating Price of Electricity. The -Act of 1907 (Secs. 9568-9570, R. S. 1909), granting power and authority to cities, by ordinance, to fix the rates of charges for the use of electricity, was expressly repealed by the Public Service Commission Act of 1913, Laws 1913, p. 651, sec. 139; and hence there was repealed along with it an ordinance of the city of St. Louis enacted in pursuance to and based upon the Act of 1907, attempting to fix the price of electric current and regulate the uses and charges therefor. And hence an appeal by the city from a judgment rendered in the circuit court before the enactment of the Act of 1913, holding that the Act of 1913 did not authorize the city to enact the ordinance prescribing a maximum rate of nine and one-half cents per kilowatt for the service of electric current, is dismissed.
    Appeal from St. Louis City Circuit Court. — Hon. Charles Claflin Allen, Judge.
    Appeal dismissed.

      Lambert E. Walther, William E. Baird and Truman P. Young for appellant.
    (1) It is a well-settled principle of equity jurisprudence that when a court of equity has once obtained jurisdiction of a cause it will retain jurisdiction until the controversy is entirely disposed of. Railroad v. United States, 133 Fed. 657. This principle has been illustrated in numerous decisions. For example: Wherever a suit has been brought to enjoin infringement of a patent, the court will retain jurisdiction, notwithstanding the expiration of the life of letters patent, for the purpose of rendering all'proper relief, such as accounting, etc. Bush v. Jones, 184 U. S. 598; Sugar Co. v. Sugar Co., 21 Fed. 878; Singer Co. v. Machine Co., 38 Fed. 586; Chinnock v. Telephone Co., 110' Fed. 199; Brooks v. Miller, 28 Fed. 617; U. S. Co. v. Spring Co., 122 Fed. 266. It is also well established' that a court of equity which has obtained jurisdiction of a cause will proceed to enter all possible relief, relief which might be obtained both at equity and at law. Obear v. Gallagher, 93 U. S. 199; Ward v. Todd, 103 U. S. 329; Peck v. Tie Co., 116 Fed. 273; People v. Chicago, 53 111. 424; Peoria v. Johnson, 56 111. 45; Spears v. New York, 87 N. Y. 376; Dulaney v. Scudder, 94 Fed. 6; Patterson v. Asphalt Pay. Co., 94 Minn. 39; Lynch v. Railroad, 129 N. Y. 280; Whitehead v. Sweet, 126 Cal. 75. But the respondent argues that, though it has obtained an injunction from the lower court to prevent the city from enforcing ordinance 25812, and though that decree will remain in force unless this court interferes, nevertheless the controversy has been reduced to a mere moot question, because of the repeal of the Cooper Enabling Act, secs. 9568 and 9570, R. S. 1909. Now, it will be noticed that the city has not repealed the ordinance. We are not here confronted with a case where the plaintiff has obtained an injunction to prohibit the enforcement of an ordinance which the city has subsequently repealed. The ordinance remains in full force and effect unless the repeal of the Cooper Enabling Act has amounted to a repeal of the ordinance. This alone is a question of lia,w which is of sufficient importance to justify a hearing upon the merits of the case, and should not be disposed of on a motion to dismiss. The question of the power of the city to pass, the ordinance, under its charter, as distinct from the powers granted by the Cooper Enabling Act, and. the question of the validity of the ordinance, notwithstanding the repeal of that act, is fairly presented by the record. The repeal of the Cooper Act did! not reduce this litigation to a moot case. So long as there are any questions which remain undecided, and the decision of which, may result in a decree affecting the substantial rights of the parties, the case is not a moot one. It is not material that some of the questions presented may have lost vitality, either by lapse of time or by a change of the law. If any questions presented are still live questions, if the court can enter a decree affecting the substantial rights of the parties, the case cannot be regarded as a moot case. And this is especially true where the lower court has entered a perpetual injunction.

      H. 8. Priest, John H. Drabelle and Schnurmacher & Rmsieur for respondent.
    The general rule of law is that rights dependent on a statute and! still inchoate, not perfected by final judgment or reduced to possession, are lost by repeal or expiration of the statute. The ordinance, assailed' by this proceeding, established a maximum rate and prescribed certain regulations to be followed by electric light and power companies. As to the .respondent, this ordinance never went into effect, because of the decree and permanent injunction of the court below. No rights can now be predicated upon the ordinance, because of the repeal of the law upon which its validity rests, without any saving clause in the repealing act. Sutherland on Statutory Construction, sec. 163; Yeaton v. United States, 5 Cranch (U. S.), 281; Schooner Rachael v. United States, 6 Cranch, 329; Endlich on the Interpretation of Statutes, see. 478; Eaime v. Ilarty, 4 Mb. App. 357. In the case at bar the plaintiff sued to enjoin the enforcement of the ordinance. The decree of the lower court was to that effect.' The city appealed; but since its appeal was taken the ordinance und'er which it was threatening to proceed! has been repealed by 'the General Assembly. The ordinance had as its sole support Secs. -9568, 9569 and 9570, R. S. 1909, commonly known .as the Cooper Act. Without these sections the city possessed no power to legislate on the subject of rates. The General Assembly, -which granted the power, had the right to withdraw it, and having withdrawn it, the city is again without authority ; the foundation on which the ordinance rested1 having been removed1, the ordinance has fallen away and has been in law repealed. Illinois & Michigan Canal v. Chicago, 14 111. 334; Railroad v. Railroad, 102 Mass. 386; Surtees v. Ellison, 9 B. & C. 7'50. Even if the Public Utilities Act had not in express terms repealed sections 9568, 9569 and 9570-, the ordinance under which the city was threatening to proceed), when enjoined, would still be unenforcible at 'this time for another and further reason, and that is, because the Public Utilities Act has now vested the Public Service Commission with exclusive power and authority to fix rates and to regulate corporations of the character of respondent. Where a statute of the State and an ordinance of a municipality conflict, the ordinance becomes invalid. City of St. Louis v. Wortman, 213 Mo. 131; Kansas City v. Clark, 68 Mo. 588; Hicks v. St. Louis, 234 Mo. 647.
    STATEMENT.
    The Legislature of this State in 1907 passed an act approved by the Governor May 8, 1907, which required the owners or operators of certain public utilities under franchises granted by the State or any of its cities, to conform their charges for service of utilities to the amount “fixed” by the ordinances in the respective cities where they were conducted. The words of the act granting this power to the cities are as follows:
    “ . . . are hereby granted power and authority to fix, by ordinance, the rates of charge for the service of such utilities within their corporate limits, and to provide .and enforce fines and penalties for the violation thereof, and to change such rates, by ordinance, from time to time, as often as may be deemed necessary; provided, however, that such rates must be reasonable, and shall not be changed oftener than once every two years.” ['Laws 1907, p. 120.]
    . The act also afforded a right of attack in the circuit court within twenty days after the passage of such ordinance to test its validity and the reasonableness of such rates with a further right of appeal by either party as in other cases. The act further provided that any such city or town might create a commission to investigate all facts and matters touching the establishing of a just and reasonable rate of charge and report its findings and recommendations to the city council. The provisions of this act were carried into the Revised Statutes of 1909, where they now appear as sections 9568-69-70.
    In pursuance of the above delegation of authority, the city of St. Louis, by ordinance 24196 approved Fehruary 24, 1909, created a Public Service Commission and upon a report from that body bearing on the business and property and rates charged by the Union Electric Light & Power Company, adopted a further ordinance which is No. 25812, approved April 12, 1911. [Rombauer’s Revised Code of St. Louis (1912), chap'. 37.] This ordinance by its terms went into effect six months after its approval. Section one of said ordinance prescribed a maximum rate of nine and one-half cents per kilowatt hour for the services of electric current. Said ordinance by section three provided that all owners or proprietors engaged in supplying electric current “shall be subject and bound by the following regulations.” It then provided that such persons shall furnish to the consumer of electric current meters free of cost, and under certain circumstances to supply them lamp renewals upon the return of burnt out lamps, and forbade them to contract with consumers not to use other means than electricity for light or power, or to require any consumer to contract for a longer period of service than one month, and prohibited them from charging any rental for service connection or meters, or to require the customer to agree to use a fixed amount of electric current, o.r to pay any fixed sum for services rendered him, prohibited them from requiring any customer to make a deposit to secure payment of services in excess of two months’ average business, and requiring them to pay interest at five per cent per annum on all deposits, and requiring them to furnish free service connections to the extent of one hundred feet from the street to the inside walls of the premises of such consumer.
    Immediately after the passage of this ordinance, to-wit, April 28, 1911, the Union Electric Light & Power company, a corporation engaged in the city of St. Louis in the business of furnishing and selling electricity for lighting, heating,and power, brought this suit, praying that said ordinance, setting it out in haec verba, be declared unconstitutional and void as to said plaintiff and that its enforcement be perpetually enjoined.
    The grounds upon which the ordinance was sought to be annulled were: That its enactment by the city was in excess of the power delegated to it by the act of the Legislature of Missouri (R. S. 1909, secs. 9568-69-70) in that the only power purported to be given to the city by the' terms of said act of the Legislature, was the power “to fix, by ordinance, the rates of charge fo;r the services of such utilities within their corporate limits,” and that from these words the city could not exercise the broader power of establishing a maximum rate and regulating the business of complainant ia,s it had attempted to do by 'the ordinance in question; that said ordinance was unreasonable and confiscatory, and attempted to impair the right of contract and the freedom of contract guaranteed to plaintiff by the Constitution of Missouri, section 4, article 2.
    The defendant city filed its amended answer admitting that plaintiff is engaged in the city of St. Louis in the business stated in its petition; admitting the passage by defendant of the ordinance referred to in tbe petition, and that it was correctly copied therein, and; admitting’ further that “unless restrained by this or other court of competent jurisdiction it will proceed to-enforce the ordinance against the plaintiff.” Defendant further answered denying that the maximum rate of charge for electricity established by said ordinance is unreasonable as concerns the business of plaintiff, denying that if enforced it would' require plaintiff to furnish electric current for a sum which will not yield a fair and reasonable return upon the cost and value .of its property, and denying that said ordinance is therefore unreasonable, oppressive or confiscatory.
    Upon the filing of said answer plaintiff filed a written motion for judgment upon said answer on the ground of the admission in the answer as to the passage of the ordinance and the purpose- of the city to enforce .it against the plaintiff. Said motion for judgment concludes, to-wit:
    “AVhereupon this plaintiff states that defendant by said answer admits that it has passed, and upon the filing of the petition herein threatened, and now still threatens to enforce said ordinance, under an act of the General Assembly authorizing it merely to fix, but not to regulate the rates which may be- charged by this plaintiff. And plaintiff states that it thus appears by the admissions of defendant that the ordinance aforesaid, the enforcement of which is sought by this plaintiff to be restrained, is null, void and of no effect, because, among other grounds assigned in its petition, it does not come within the exercise of the power conferred upon defendant by said act of the General Assembly.
    “Wherefore plaintiff now moves the court for a judgment and decree upon said answer, as is prayed by it in its petition.”
    Upon the- consideration of this motion the court on the 12th of February, 1912, entered a decree sustaining the prayer for judgment and perpetually enjoining the enforcement of said ordinance against plaintiff. After the overruling of a motion for new trial defendant appealed to this court.
    During the pendency of said appeal the respondent filed in this court a motion to dismiss the appeal for the. reason that since it was taken, the General Assembly had passed an act known as the “Public Service Commission Act, ’ ’ creating such a commission and defining its powers and duties and investing it with full regulation and control of public service corporations like the plaintiff, and expressly repealing, in terms, sections 9568-69-70 of the. Revised Statutes of 1909, in pursuance of which sections the ordinance sought to be enjoined had been enacted by the city of St. Louis. Said motion concludes, to-wit: ‘ ‘ That by reason of the repeal of the said sections of the Revised Statutes of 1909 aforesaid, all power or right of the city of St. Louis to fix the price of electric current has been repealed, so that said city of St. Louis no longer has such power; and therefore the appeal in this case presents now merely a, moot or academic question.”
    In support of this motion and in opposition thereto, the parties have filed printed briefs in addition to those filed theretofore, and have stipulated for the submission of the case on said briefs.
   OPINION.

I.

BOND, J.

(After stating the facts as above). — On the motion of respondent to dismiss this appeal only orne question is presented. Was the ordinance No. 25812, which purported to establish a maximum rate of charge for electrical service and provide other regulations which should govern the plaintiff in the conduct of its business, repealed when the Act of 1907 (R. S. 1909, secs. 9568-69-70) was expressly repealed by section 139 of the Public Service Commission Act passed by the Legislature of 1913? [Laws 1913, p. 651, sec. 139.]

This ordinance could only spring from one of two sources, i. e., the charter of the city, or the provisions of the grant of power to it contained in the Act of 1907. [R. S. 1909, secs. 9568-69-70.] Was it within ^le power vested in the city by its charter? Appellant pleaded no such authority in its amended answer in this case, but that does not exclude it from review, for the charter of St. Louis is judicially known to all courts. [Constitution, art. 9; sec. 21.] In the brief for appellant our attention is directed, as authority for the ordinance derivable from the city charter, to the following language. “To license, tax and regulate . . . telegraph companies or corporations . . . and all other business, trades, avocations or professions whatever.” [Charter of St. Louis, art. 3, sec. 26, cl. 5.]

This language of the charter of St. Louis was in judgment in this court where the point under review was the authority of.the city of St. Louis by force of that language, to pass an ordinance prescribing that “the lannual charg’e for the use of the telephone in the city of St. Louis shall not exceed fifty dollars.” The telephone company was fined $300' for violating that ordinance and appealed to this court. It was contended that the ordinance could be sustained under the language of the charter above quoted. It was ruled that the language in question afforded no warrant for the enactment of the ordinance fixing the rate for telephone service; that such power resided in the State, but had not been delegated to the city of St. Louis under the provisions of its charter to which the attention of the court was then directed, nor under its power to regulate the streets, nor under that given to it by the (‘ General Welfare Clause, ’ ’ and since such sa. power was not necessarily or fairly implied in or incident to any power expressly granted to the city, it was not exercisable by it. [City of St. Louis v. Bell Telephone Co., 96 Mo. 623.] The case cited has been a leading authority in this State since it was ruled, and is conclusive from a charter standpoint, as to the invalidity of the ordinance under review in so far as it attempted to establish a maximum rate of charge for the service of electric current. Indeed that is conceded in the brief of the learned counsel for the city, who insists, however, that the ordinance is sustainable as to those clauses and provisions which are termed “regulatory,” since these merely protect the public against any “improper or harmful manner in which the service might have been rendered,” and hence are within proper exercise of the j)olice power of the city.

We cannot assent to that view. An analysis of the various regulations contained in the ordinance discloses that each and all of them relate to the question of the price at which the plaintiff might sell its electric current and do not touch even remotely, upon the health, morals and welfare of the public, or the conservation of i'ts property, or upon any subject falling within the just protection of the police power of the dty. Take for instance the requirement of free meters; that was evidently designed to bring within the maximum rate all expense attendant upion securing the service of electricity. In other words it was the intention of the framers of the ordinance, that all meter cost should be absorbed in the amount prescribed in the maximum rate of charge. That regulation bore no possible relation to .any matter lying within the just domain of the police power. The same may be said 'to the regulation as to lamp renewals without cost to the consumer.

The other regulations related to restrictions upon the power of plaintiff to make contracts with its con-sinners for the purpose of securing the payment of its charges, such regulations are not only outside of the police power, but they are in contravention of the Constitution which guarantees to the citizens the right of freedom of contract as to any lawful subject-matter.

Our conclusion is that the regulations inserted in this ordinance were only intended to prevent the avoidance, in any way, of the maximum rate of charge prescribed, and were inserted in the ordinance, not for police purposes, but to insure that none of the appliances for the service of electric current should carry its cost to the users above nine and one-half cents per kilowatt hour. As the city had no power under its charter to fix any rate of charge for the use of electricity; it necessarily was without charter power to affect-the price at which it was sold to the public by regulatory provisions contrived solely to that end, for that would be pro tanto a fixing of the price, and this, as has been seen, it had no charter power to do. The result is, that the ordinance, under review cannot be-sustained as a valid exercise of any powers expressly or incidentally granted in the charter of St. Louis.

II.

"Was the ordinance in question -enacted within the scope of the powers delegated to the city of St. Louis by the act of the Legislature of 19071 [R. S. 1909, secs. 9568-69-70.]

The-act- of the Legislature approved March 17, 1913, known as the Public Service- Commission Act, relieves us from an answer to that inquiry. That act, among other things, in express terms repealed the three sections of the Revision of 1909 in which the original act of 1907 was bodily incorporated. [Laws 1913, p. 651, sec. 139.] The effect of this specific repeal of the sections of the Revised Statutes necessarily repealed any ordinance which the city of St. Louis might have enacted in pursuance of the power devolved upon it hy the repealed sections of the statute. This exact point was before this court in a recent case, where the court held in judgment whether an ordinance of the city of St. Louis was repealed by a repugnant act of the Legislature subsequently enacted.

The defendant in that case was charged with the violation of the ordinance prior to the statute. Despite that fact, this court speaking through 'Woodson, J., held that the defendant was properly discharged, adding,' “For the reason that the law is well settled in this State that the repeal of an ordinance pending a prosecution under its provisions operates to relieve the defendant unless it is otherwise provided in the act repealing* the ordinance,” [St. Louis v. Wortman, 213 Mo. l. c. 147-8; City of Kansas v. Clark, 68 Mo. 588.]

The present case is stronger,’ if possible, than the one just cited, for here the section of the statute upon which the 'Ordinances of the city of St. Louis was necessarily founded, were expressly and in terms repealed by the later act.

We therefore hold that the present appeal being resolved into an effort to reverse a judgment which enjoined as to this respondent an abrogated ordinance, presents no question for review by us and-the appeal takpn herein is accordingly dismissed.

Lamm, G. J., Graves, Brown, Walker and Woodson, JJ., concur in result and in paragraph two, in an opinion by Graves, J; Faris, J., concurs in result.

SEPARATE CONCURRING. OPINION.

GRAVES, J.

I concur fully in what is said in paragraph two of the opinion of our Brother Bond, and in the result reached in the case. What is said in ’.paragraph two of the opinion fully disposes of the case, and renders' what is said in paragraph one in a sense obiter—not strictly obiter, because it could well be written under the issues involved, but obiter in the sense that after reaching the conclusion reached in paragraph two the case was finally disposed! of, and there was no necessity for. further utterance. The opinion may be right or wrong upon the questions discussed in paragraph one (matters upon which we express no opinion at all), but when we touch one question therein suggested, we are in contact with a very “live wire,” and ought to approach it with hesitancy, and then only in a case where the question is the question in the case. I refer to restrictions in State laws or 'ordinances which tend to do away with the terms of existing contracts on the theory that the police power of the State cannot be contracted away. The trend of recent legislation is such that this question is going to become the turning point in some case in the very near future, and for that reason I prefer to express no opinion thereon .at this time, but await a time when it can be considered upon full argument in the light of modem statutes and some more recent cases. For these reasons I concur only in paragraph two of the opinion, and in the result.

Lamm, G. J., Woodson, Broiun and Walker, JJ., concur in these views.


author: GRAVES, J.

text:
    THE STATE ex rel. ISAAC A. LETCHER v. ELBRIDGE M. DEARING, Judge.
    In Banc,
    December 24, 1913.
    1. PROHIBITION: Motion for Judgment on Pleadings: Issues of Fact. Where, upon the coming in of respondent’s return to a writ in prohibition, petitioner moves for judgment, the facts as stated in the return are taken as true, if in any wise they differ from those stated in the petition.
    2. QUO WARRANTO: Accepting Railroad Pass: Constitutional Provision: Self-Enforcing. The provision of the Constitution (Sec. 24, art. 12), declaring that no railroad company shall grant a free pass or ticket to a county officer and that the acceptance of such pass or ticket by any such officer shall be a forfeiture of his office, is not self-enforcing. An officer cannot be deprived of his office without some kind of a judicial hearing, and the Constitution provides no method for such a hearing.
    3. -: -: Forfeiture of Office: Conviction. Under Sec. 4814, R. S. 1909, a county officer must be convicted in a criminal prosecution in the circuit or criminal court before there can be a judgment of forfeiture of his office for accepting a railroad pass. He cannot be removed by a court of equity upon an information in the nature of a quo warranto under Sec. 2631, R. S. 1909, until he has been convicted, for until then he cannot be said to have usurped or intruded into, or to unlawfully hold, his office.
    4. -: -: Removal from Office. Where the statute provides a method of forfeiture of office for certain offenses, as a general rule a court of equity will not exercise its jurisdiction in a quo warranto proceeding to declare a forfeiture.
    5. -: -: -: Constitutional Method. The Con- • stitution itself, when read as a whole, and especially when section 7 of article 14, declaring that “the General Assembly shall, in addition to other penalties, provide for the removal from office of county, city, town and .township officers, on conviction of wilful, corrupt or fraudulent violation or neglect of official duty,” is considered, seems to contemplate that there must be a conviction of the officer, by a trial in the circuit or criminal court, of a violation of a statute, before a judgment of forfeiture of office can be entered.
    Prohibition.
    Writ allowed.

      Edward T. Ever sole and James F. Green for relator.
    (1) Prohibition will lie to prevent the exercise of unauthorized power, even in a case where the inferior court has jurisdiction of the subject-matter of the action. State ex rel. v. Reynolds, 209 Mo. 178; Morris v. Lenox, 8 Mo. 252; Railroad v. Wear, 135 Mo. 256, State ex rel. v. Scarritt, 128 Mo. 338; High on Ex. Legal Rem., see. 389; Spelling on Ex. Legal Rem., sec. 1741; Thomas v. Mead, 36 Mo. 247. (2) The proceeding in quo, warranto against relator should not he entertained by the circuit court until a trial is had in the criminal ease. Sec. 4814, R. S. 1909; State v. Wilson, 30 Kan. 669; High on Ex. Legal Rem., secs. 617, 618, 637, 643; Grade v. St. Louis, 213 Mo. 395; State ex rel. v. Reynolds, 158 S. W. 671; State ex rel. v. Adams, 101 Mo. App. 475. (3) A judgment of ouster in the quo warranto proceeding would deprive relator of his office, and he would have no adequate remedy by appeal. 32 Cyc. 1466; People v. Stevenson, 98'Mich. 218; Welch v. Cook, 7 How. Prac. 282; State v. Wilson, 121 N. C. 480; Olmstead v. Distilling Co., 73 Fed. 44'; Jayne v. Drorbaugh, 63 Iowa, 711; Allen v. Church, 101 Iowa, 116; State v. Judge, 14 La. Ann. 240; State v. Wood-son, 128 Mo. 517; State v. Ragsdale, 59 Mo. App. 591. ' (4) The mere fact that a railroad pass might be held by relator would not constitute a violation of the Constitution or the statutes. Smith v. Railroad, 24 N. Y. 227; Dempsey v. Railroad, 146 N. Y. 294; Emerson v. Railroad, 75 Atl. 525; City v. Railroad, 93 Pac. 48; Commonwealth v. Gleason, 69 S. E. 448.

      W. A. Cooper and H. B. Irwin for respondent.
    (1) Quo warranto proceedings is the proper remedy to question the right to hold and exercise public office. 32 Cyc. 1415; Lee v. State, 49 Ala. 43; Hill v. Shasta Co., 63 Cal. 174; Parsons v. Drummond, 150 Ind. 203; State v. Sadler, 25' Nev. 131; Nichols v. Mac-Lean, 101 N. Y. 526; Gilroy’s Appeal, 100 Pa. St. 5; Grant v. Chambers, 34 Tex. 573; State v. Raisler, 133 Wis. 672. • (2) No criminal prosecution is a prerequisite to an action by quo warranto. State ex inf. v. Dfelmar, 200 Mo. 34; 32 Cyc. 1417, 1424, 1462 ; 23. Am. & Eng. Enc. Law, 632; State ex rel. v. Oil Co., 218 Mo. 350; State ex rel. v. Social Club, 169 Mo. App. 137; Royall v. Thomas, 28 G-ratt. (Ya.) 130'; Royall v. Thomas, 26 Am. Rep. 335; Morgan v. Yance, 4 Bnsh (Ky.), 323. (3) Section 24 of article 12 of the Constitution is self-enforcing. The rule is that prohibitive and restrictive provisions are self-executing and may be enforced by the courts independent of any legislative action. 8 Cyc. 754, 756 to 758 ; Householder v. Kansas City, 83 Mo. 488; State ex rel. v. Taylor, 224 Mo. 482; Shively v. Lankford, 174 Mo. 549; Royall v. Thomas, 28 Graft. (Ya.) 130; Royall v. Thomas, 26 Am. Rep. 335; Morgan v. Yance, 4 Bush (Ky.), 323.
   GRAVES, J.

Original action in prohibition. Relator seeks to prohibit the respondent, as judge of the Washington County Circuit Court, from now proceeding to try him upon a certain information in the nature of quo warrmto lodged against him by the prosecuting attorney of Washington county. Relator, Letcher, is the duly qualified collector of revenue of Washington county. The information in the nature of quo ivarranto seeks to oust him from that office for reasons thus stated in the petition:

“That the said Isaac A. Letcher during his said term of office as collector of the revenue aforesaid, did at the county of Washington and State of Missouri, unlawfully accept from the Missouri Pacific Railway Company, a railroad corporation organized under the laws of the State of Missouri, and engaged in owning and operating a line of steam railroad in the State of Missouri, a free pass, which said free pass entitled the said Isaac A. Letcher to be carried as a passenger without charge over the line of said railway company in the State of Missouri, and did use the same in traveling as a passenger on said railroad in the State of Missouri during his said term of office.

“That the said Isaac A. Letcher on the-day of January, 1913, and during his term of office.as aforesaid of said county, did unlawfully accept from the railway company aforesaid, a pass and ticket at a discount, which entitled him to be carried as a passenger over the line of said railway company in the State of Missouri, and thereafter and during his said term of office did use same in traveling as -a passenger on said railway in the State of Missouri.

“That the said Isaac A. Letcher during his said term of office as collector of the revenue aforesaid, did at the county of Washington and State of Missouri, unlawfully accept from the St. Louis, Iron Mountain & Southern Railway Company, a railroad corporation organized under the laws of the State of Missouri, and engaged in owning and operating a line of steam railroad in the State of Missouri, a free pass, which said free pass entitled the said Isaac A. Letcher to be carried as a passenger without charge over the line of said railway company in the State of Missouri, and did use the same in traveling as a passenger on said railroad in the State of Missouri during his said term of office.

‘ ‘ That the said Isaac A. Letcher on the-day of January, 1913, and during his term of office as aforesaid o'f said county, did unlawfully accept from the railway company aforesaid a pass and ticket at a discount which entitled him to be carried as a passenger over the line of said railway company in the State of Missouri, and thereafter and during his said term of office did use same in traveling as a passenger on said railway in the State of Missouri.

“Wherefore, the said Isaac A. Letcher by the acceptance and use of the passes and tickets aforesaid or any or either of them, has by virtue of section 24 of article 12 of the Constitution of the State of Missouri, forfeited his said office of collector of the revenue of the county of Washington and State of Missouri, and is now unlawfully holding said office and still does usurp at the county of Washington and State of Missouri, without legal right so to do, the rights, liberties, privileges and franchises of said office, and threatens to continue so to do, in contempt of and to the great damage and prejudice of the authority of the State of Missouri aforesaid.

“Whereupon the said prosecuting attorney in this behalf prosecutes for the State of Missouri, and prays the consideration of the court here in the premises, and that due process of law may be awarded against the said Isaac A. Letcher in this behalf to make answer to the State of Missouri, and show by what authority he claims to have, use and enjoy the rights, liberties, privileges and franchises aforesaid.”

Relator unsuccessfully demurred to this information, and respondent was threatening him with a trial thereon, when the proceeding was stopped by our order to show cause. Such steps as were taken in the quo warranto case were taken at the March term of said court. By relator’s petition here it further appears that the prosecuting attorney of Washington county, at said March term, 1913, of that court, also filed a criminal information against relator, wherein relator was charged with a violation of section 4814, R. S. 1909, in accepting a free railroad pass. Upon this information the relator here was arrested, but the cause was continued until the August term, 1913, for trial.- The quo warranto case was docketed for hearing June 16, 1913, at the March term. In his application for our writ the relator thus succinctly states his position:

“Petitioner further states that respondent, as judge of the circuit court, has no jurisdiction to proceed to the trial of the cause on information in the nature of quo warranto, which is now pending against him in the circuit court of Washington county, Missouri, and said respondent judge is precluded' from entertaining siaid proceeding in quo warranto, and from entering any judgment therein against relator; that relator is entitled as- of right to a trial by jury in the cause which has been continued until the August term of the circuit court of Washington county, and respondent is without jurisdiction to entertain or hear said proceeding by quo warranto, which is set for hearing on the 16th of June, for the reason that under the laws of Missouri, to-wit, section 4814, it is -provided that only upon conviction of the offense named in said section can a forfeiture of office be declared', and only after conviction can petitioner be ousted! from the office which he holds as collector of 'the revenue of Washington county, and he therefore avers that respondent should be precluded and restrained from hearing and further considering said quo warranto against him until there has been a trial and judgment in the case filed by said prosecuting attorney against your petitioner, alleging a violation of section, 4814, Revised Statutes 1909; that said contemplated proceedings and trial by respondent on the 16'th of June, 1913, and before a hearing of the case against your petitioner at the August term, 1913, is in excess of 'the jurisdiction of respondent; and, if said cause is tried on the 16th of June, 1913, your petitioner will be precluded and prevented from obtaining a right guaranteed him by the Constitution of the State of Missouri, to-wit, a trial by a jury on the question of his guilt or innocence as to the same matter upon which respondent proposes andi intends to try him, as above stated, on 'the 16th of June, 1913,

“Petitioner avers that he is without adequate remedy in the premises to prevent the exercise of jurisdiction by respondent other than by prohibition to be issued by this honorable court.

“Wherefore petitioner prays that the court will issue against respondent its writ of prohibition restraining and preventing him from hearing or taking further action in said cause against your petitioner, set for trial on Monday, June 16-, 1913, and that upon final hearing said prohibition may be made absolute.”

The return -of respondent concedes the material facts involved in the case, and upon the filing of the return relator moved for judgment. In this situation of the ease, we borrow the facts from the return, if, in any particular, they differ from those stated by relator. The case is one of law, rather 'than of fact, and the necessary facts will be more fully stated in the course of the opinion. This sufficiently states the case. •

I. The return of the respondent admits the pendency of the criminal action under section 4814, Revised Statutes 1909. It admits the pen-dency °£ the quo warranto proceeding, and that a trial thereof was being pressed in advance of the criminal case. That the relator was holding the office of county collector is likewise admitted. That both informationsstrike at the same offense is admitted. With allegations in the petition here to this effect, iand with these admissions in the return, the remainder of the return may well be treated, as counsel have treated it, as • a demurrer to the petition. The case is thus left in shape for a disposition of the legal points. These in order.

II. Respondent relies solely upon the language of our Constitution, which he says is self-executing. Section 24 of article 12 of the Constitution reads:

“No railroad or other transportation company shall grant free passes or tickets, or passes or tickets at a discount, to members of the General Assembly, or members of the Board of Equalization, or any State, or county, or municipal officers; and the acceptance of such pass or ticket, by a member of the General Assembly, or any such officer, shall be a forfeiture of his- office. ’ ’

We do not concur in this view of the matter. The Constitution provides no method for the! determination of the forfeiture. An officer cannot be deprived of his office without some kind of a judicial hearing, and the Constitution provides no method for such a hear-' ing. The constitutional provision is broad enough to be the foundation of a legislative act prescribing a method of determining the forfeiture, but is not SO' far self-executing as to render legislation upon the question unnecessary. Removal from office by information in the nature of quo warrcmto, or by the original writ of quo-warranto as at common law, was never grounded upon the acceptance of a railroad pass. But aside from this thought, we find that the Legislature, by warrant of the authority given by the constitutional provision, has enacted section 4814, Revised Statutes' 1909, which reads:

“Any member of the General Assembly of the State of Missouri, or member of the State Board of Equalization, o,r any State, judicial, county or municipal officer', who shall accept, use or travel on any free passes or tickets, or passes or tickets, at a discount, mentioned in the preceding sections, shall be deemed guilty of a misdemeanor, and punished by a-fine of not less than fifty dollars nor more than five hundred dollars for each offense, and upon conviction thereof, forfeit his office, and if there be no provisions made by law for the removal of such officer by impeachment, the court trying the cause shall adjudge the defendant to have forfeited his office and declare the same vacant: Provided, that no court other than the circuit court or criminal court of record shall have power to adjudge any such office to- be forfeited and vacánt.”

Here we have a clear statutory provision for a determination of the question of forfeiture:. That the Legislature was giving a specific procedure ^0r PartiCIllar class of cases is made evident by the precise language of the stalk ^ Note the precise language of the statute. Note the proviso to the section. It locates the jurisdiction to determine the forfeiture in a court having jurisdiction over criminal cases and none other. Not only so, hut it requires a conviction, before there can be a judgment of forfeiture. Nor is it unreasonable to think that the Legislature thus designedly hedged a judgment of official forfeiture. Good reasons may be readily seen. [State ex rel. Selleck v. Reynolds, 252 Mo. 369.] It must not be overlooked that the question to biei tried in the case is whether or not there has been a forfeiture of the office. In this it differs from the statutory civil action by information in the nature of quo warranto. Vide section 2631, Revised Statutes 1900. That section so far as pertinent reads:

“In case any person shall usurp, intrude into or unlawfully hold or execute any office or franchise, the Attorney-Gieneral of the State, or any circuit or prosecuting attorney of. the county in which the action is commenced, shall exhibit to the circuit court, or other court having concurrent jurisdiction therewith in civil cases, ,an information in the nature of a quo loarranto, alt the relation of any person desiring to prosecute the same; and when such information has been filed and proceedings have been commenced, the same shall not be dismissed or discontinued without the consent of the person named therein ia,s the relator; but such relator shall have the right to prosecute the same to final judgment, either by himself or by attorney.”

In a case like the one at bar it cannot be said that relator has usurped, intruded into', or unlawfully held his office, until there has been a trial and judgment of forfeiture. It stands conceded that he is rightfully in the office, unless he has forfeited that right by conduct subsequent to his induction into office. The question then is, who shall try the matter of forfeiture, a court of equity, or the courts named in the statute? If the constitutional provision is not self-executing, as we have held, then it is clear that the forfeiture must be determined in the method pointed out by the statute. In other words, that the judgment of forfeiture can only follow a conviction under the criminal charge.

In State ex rel. v. Wilson, 30 Kan. 661, the Kansas court has taken our view of .the case, i. e., that neither common law nor statutory civil action in quo warranto will lie, when there is a specific statute prescribing the procedure by which forfeiture of office shall be determined. In that case it is said:

“Section 104 of the first-class city act also provides for removals of the mayor and other city officerfor misconduct in office, upon conviction in any court of competent jurisdiction; and section 213, in connection with sections 207, 208 and 209-of the act relating to crimes and punishments, provided for forfeiting the office of all officers who shall be found guilty of any official misdemeanor or misconduct in office, in any court of competent jurisdiction. The procedure, however, to enforce the provisions of said sections 104 and 213 is criminal in its nature, and not civil, as the procedure in quo toarranto is. The statutes themselves expressly show this. It is possible that, after a forfeiture under said section 213, quo toarranto would lie. But there has not yet been any such forfeiture. Now, after the Legislature has had the entire subject-matter of forfeitures of office and removals from office under consideration, and has evidently intended to cover the entire ground, is it possible to suppose that the Legislature intended that there might still be some other ground for forfeiture than those mentioned in the statutes, or some other manner of removal from office than that mentioned in the statutes'? Wé would think not. ’ ’ And again, in the same case the following:

“Mr. High, in his work on Extraordinary Legal Remedies, lays down the doctrine that generally quo warranto will not lie where there is another plain and adequate remedy. [High on Extra. Legal Rem., secs. 616, 617, 618, 637, 643, 645.] Counsel for plaintiff, howiever, claim that Mr. High is mistaken, but after a careful and pretty thorough, examination of the authorities we are convinced that Mr. High’s statement of the rule is substantially correct. [State v. Marlow, 15 Ohio St. 114; State v. Taylor, 15 Ohio St, 137; State v. Hixon, 27 Ark. 398; Com. v. Leech, 44 Pa. St. 332; People v. Hillsdale, etc., Turnpike Co., 2 Johns. (N. Y.) 190; Neely v. Wadkins, 1 Rich. (S. C.) Law, 42; Lord Bruce’s Case, 2 Strange, 819; The King v. Ponsonby, 1 Ves. Jr. (Ch.) 1; The King v. Heaven, 2 Durnf. & E. 772, 776.] In Lord Bruce’s case the court says: ‘If it is an actual forfeiture he is out, you may choose" another; if not, it. is hut a misdemeanor land a quo warranto will not lie. Besides, the modern opinion has been that a power of amotion is incident to the corporation. ’ In the case of The King v. Ponsonby, which-in the lower court was a proceeding in quo warranto against a person holding the office of free burgess of the corporation of Newtown, charging him with having usurped the office, it was held that the power of amotion had been expressly granted to the corporation, and therefore that quo warranto would not lie against a member until such power of amotion had been exercised. In the casa of The King v. Heaven it is said by Ashtjrst, J.: ‘Whenever a person has been once dulelected into corporate office and forfeits it by misconduct, his amotion by the corporation is ia previous and necessary step to be taken before this court will grant an information in the nature of quo warremito against him, for when a corporator neglects the duties of his office the corporation should first take cognizance and deprive him, and then it may be properly brought before this court.’ The case was decided in accordance with this opinion. These three English cases last cited were with reference to officers of municipal corporations. The American authorities also seem to sustain the doctrine as enunciated by Mr. High. After an examination of the authorities we have arrived at the conclusion that, as a general rule, a court having the power to exercise jurisdiction in quo warranto proceedings will not exercise its jurisdiction where some other plain and adequate remedy exists. This, we think, was always the law.”

III. We are more thoroughly impressed with the foregoing views after an examination of other statutes of the State relating to forfeitures of office. There seems to he a clear legislative scheme "which runs through all cases of this character, and that schema is' not to permit a forfeiture judgment until after a conviction in a criminal charge, wherein the guilt or innocence of the defendant upon the charge going to the forfeiture has been determined. In other words the State must have a verdict of guilty upon the act which creates the forfeiture, before a judgment of forfeiture can be entered. Upon a trial of that issue the accused is entitled to a jury if he so desires. Such seems to be the general policy of Missouri. Thus by sections 4385, 4386 4387, and 4388, Revised Statutes 1909, certain acts of sheriffs, deputy sheriffs, jailers, etc., are made misdemeanors and in some instances higher grade crimes, but section 4389,- Revised Statutes 1909,. reads:

“Every officer who shall be convicted of any of the offensies specified in the last four preceding sections shall forfeit his office.”

It will be noted that á conviction is required before the judgment of forfeiture. Section 4405, Revised Statutes 1909, reads:

“Any person, being a candidate for election to any office of honor, trust or profit, in this State, who shall offer or promise to discharge the-duties of such office for a less sum than the salary, fees or emoluments of-said office, as fixed by the laws of the Statei, or who shall promise to pay back or dómate to any public or private interest any portion of such salary, fees or emoluments, as an inducement to voters at such election, shall on conviction thereof he deemed guilty óf a misdemeanor, and shall he fined in a sum of not less than fifty dollars nor more than five hundred dollars, or imprisonment in the county jail for a period of not less than ten days nor more than six months, or by both such fine and imprisonmentj and shall in addition forfeit the office to which he may have been elected at such election.”

Again we have the judgment of forfeiture following a conviction. We also have section 4413-, Revised Statutes 1909, which reads,:

“Eyery person who shall be convicted of any of the offenses mentioned in the preceding sections of this article shall be forever disqualified from holding any office of honor, trust or profit under the Constitution and laws of this State, and from voting at any election and every officer who shall be convicted of any official misdemeanor or misconduct in office, or of any offense which is by this or any other statute punishable by disqualification to hold office, shall, in addition to the other punishment prescribed for such offenses, forfeit his office.”

The latter clause is the one apropos here. Again we have, as to one already rightfully in office, a conviction required, before there can be a judgment of' forfeiture. Going further we have a statute which uses the exact proviso used in section 4814, supra, the one involved in this case. Such statute is section 10203,, Revised Statutes 1900, and reads:

“If any public officer, whether State, county, city, town or township officer, shall be intoxicated while in the performance of any official act or duty, or shall become so intoxicated as to be incapacitated- to perform any official act or duty at the time and in the' manner required of him in the discharg-e of the duties of his office, he shall be deemed guilty of a misdemeanor in office, and punished by imprisonment in the county jail not exceeding six months or by ¡a fine of not less than fifty dollars, or by both such, fine and imprisonment; and if there be no provisions made by law for the removal from office of such officer by impeachment, the court shall adjudge the defendant to have forfeited his. office, and declare the same vacant, and the same shall be filled as provided by law for filling such vacancy: Provided, that no court other than the circuit or criminal court of record shall have power to adjudge any such office to be forfeited and vacant.”

Note again the judgment of forfeiture is postponed until after a criminal conviction is had. Article 2 of Chapter 104, Revised Statutes 1909, relates to “Fees, Payment and Disposition Of.” There are a great number of sections in the article, but at the close thereof we have section 10736, which read's:

“Every person violating the provisions of this article shall be deemed guilty of a misdemeanor, and,, upon conviction thereof, shall be fined for each offense in any sum not less than fifty dollars nor more than one thousand dollars, and conviction thereunder shall work a forfeiture of his office. ’ ’

Conviction before forfeiture of office is the keynote of this section. There are no doubt other statutes, but these we gather by a hasty research. They bespeak, as with one voice, a fixed State policy, and that policy is a conviction in a criminal case, before judgment of forfeiture in cases belonging to the class to which this case belongs. Of course the Legislature could; have had these investigations by civil action, as it has done in other classes of cases, but it is not for the court to legislate.

IV. But in addition to this, the Constitution itself, when read as a whole, would seem to contemplate that there must be a conviction of a viola^011 before a judgment of ouster. We must read all provisions of the Constitution together, and from them all gather our conclusions. We have siet'out above the provision of the Constitution relied upon by the State. We should not, however, overlook sections 5 and 7 of article 14. Section 5- reads:

“In the absence of nny contrary provision, all officers now or hereafter elected or appointed,, subject to the right of resignation, shall hold office during their official terms, and until their successors shall bie duly elected or appointed and qualified.”

Section 7 reads:

“The General Assembly shall, in addition to other penalties, provide for the removal from office of county,' city, town and township officers, on conviction of wilful, corrupt or fraudulent violation or neglect of official duty.”

So that it would appear that the idea of a conviction before a judgment of forfeiture is’in the constitutional as well as the statutory scheme of the State. These two constitutional provisions underwent a thorough discussion by Lamm, J., in State ex rel. v. Sheppard, 192 Mo. 497.

Upon the whole we are satisfied that respondent has no powtar to hear the information involved in this case and our provisional writ should be made permanent. It is so ordered.

All concur, except Woodson and Brown, JJ., who dissent.