author: WHITE, C. PER CURIAM:

text:
    BENJAMIN R. BERRY, A Minor, by Next Friend, v. MAJESTIC MILLING COMPANY, Appellant.
    Division Two,
    July 17, 1920.
    1. CONSTITUTIONAL QUESTION: How liaised. An answer which calls attention to a specific act of the Legislature and complains that said act “under which plaintiffs seek to recover herein” is unconstitutional, sufficiently designates the section of the act at which the objection is aimed. The plaintiff need not be told what section he was proceeding under, nor did the court need any additional specification.

      t. -: How Kept Alive. Where the constitutional question has been sufficiently raised by the answer, it is kept alive by an objection by defendant to the introduction of testimony on the ground that “the petition fails to state a cause of action,” and by a request for an instruction that under “the pleadings and evidence’’ the verdict must be for the defendant, and by motions for a new trial and in arrest charging that the court erred in refusing to sustain the objection to the introduction of testimony under the petition for the reason the statute under which the petition was drawn was contrary to a certain section of the Constitution.

      3. CONSTITUTIONAL LAW: Title: Prohibition and Regulation. Where the title to an act purports to regulate the employment of children of designated ages a section in the body of the act which prohibits the employment of such children is invalid.
    4. -:--: Children: Employment in Roller Mill. The title to the Act of 1911, Laws 1911, page 132, expressed as its purpose the “prohibiting, with exceptions, the employment of children under 14 years of age, and regulating the employment of children between 14 and 16 years of age.” Section 1726b of the act prohibited the employment of children under 16 years of age in operating or assisting in operating roller mill machinery. Held, that the subject-matter of said section was not clearly expressed in the title, and the section is not constitutional, and a judgment for damages for injuring a boy fifteen years of age employed in a roller mill cannot be grounded on a violation of said section. The title clearly indicates that children under fourteen years of age would be prohibited by the act from certain employments and would be permitted to engage in other employments, and that children between 14 and 16 years of age would not be prohibited from any employment, but their employment would be regulated.
    Appeal from Stone Circuit Court. — Hon. Fred Stewart, Judge.
    Reversed.

      John T. Moore, Carr MoNatt and John L. McNatt for appellant.
    The Act of 1911, entitled “Schools, Compulsory Attendance of Children,” and especially Sec. 1726b, Laws 1911, p. 136, is void, as said act contains more than one subject and the purpose of same is not clearly expressed in its title; in violation of Art. 4, Sec. 28, Mo. Constitution. State v. Clark, 54 Mo. 34: Kansas City v. Payne, 71 Mo. 162; State v. Burddoerfer, 107 Mo. 1; State v. Carr, 142 Mo. 611; State, v. Coffee Co., 171 Mo. 634; Witzman v. Railway Co., 131 Mo. 618; Williams v. Railway Co., 233 Mo. 666; State ex rel. v. Revelle, 165 S. W. 1084; State ex rel. v. McGrannon, 111 Mo. App. 632.

      1. V. McPherson, James A. Potter, Bufe Scott and W. E. Renfro for respondent.
    (1) The constitutional question argued by appellant was never properly raised in the trial court. An examination of the act referred to will show that it covers six pages of legislation and contains twenty-one different sections. No allegations of defendant’s answer challenges the constitutionality of Section 1726b, under which this suit is brought. Appellant admits that a portion of the act is valid, and this court has frequently held that one portion of an act may be valid while another portion is invalid. In considering a constitutional objection to such a statute counsel are not permitted to make a general assault on the entire act, where the real claim is that only a certain section is invalid. For example, this court has held that a general allegation that a law violates Section 53 of Article 4 of the Constitution is insufficient because it fails to point out which one of the sub-sections of Section 53 is involved. State v. Christopher, 212 Mo. 244; State ex inf. v. Southern, 265 Mo. 284. Since it is admitted that certain sections of the act under consideration are valid, it was clearly incumbent upon the appellant to specifically point out to the trial court which section it claimed was unconstitutional, and having made a general assault upon twenty-one different sections in the trial court, it cannot now be permitted to contend that the trial court erred in its ruling upon a particular section which was not called to the court’s attention. (2) But if it be granted that appellant raised a constitutional question in its answer, such question was waived and abandoned by the appellant at the trial. No further reference to the unconstitutionality of the act than that contained in defendant’s answer was made in the whole course of the trial. No decision by the court as to the constitutionality of the act in question was asked by the appellant nor made by the court. The court had no opportunity to decide and it did not decide that the act was constitutional. If appellant, hy its objection, or by its demurrer to plaintiff’s evidence, or by its assignment of error number 6 in its motion for a new trial, intended to invite the court’s decision on the constitutionality of the act, then the Supreme Court has denounced its method of procuring the trial court’s decision as an “ambush,” per.missible in war, but never allowable in a court of justice, in procuring’ a decision on so grave a matter as a constitutional provision. Lobmeyer v. Cordage Co., 214 Mo. 688; Yansandt v. Hobbs, 153 Mo. 656; Browning v. Powers, 142 Mo. 324; Miller v. Connor, 250 Mo. 684; Bennett v. Railroad, 105 Mo. 645; Brown v. Railroad Co., 175 Mo. 188. To bold that a constitutional question is involved and to have that question tried on this appeal by an appellate court is to review questions never decided by the trial court, and to convict the trial court of error is to find him guilty of error upon a decision not made. St. J. v. Life Ins. Co., 183 Mo. 1; Ash v. Independence, 169 Mo. 79; Kirkwood v. Highlands Co., 160 Mo. 118. “To give the Supreme Court jurisdiction on the ground that a constitutional question, is involved, it must appear that such question was actually involved and that the trial court bad an opportunity to and actually did pass upon it.” Baldwin v. Fries, 103 Mo. 286; Shell v. Mo. Pac. Ry., 202 Mo. 339; Shewalter v. Mo. Pac. Ry., 152 Mo. 551; Ash v. Independence, 145 Mo. 120; Parlin & Orendorff Co. v. Plerd, 145 Mo. 119; Hardin v. Carthage, 171 Mo. 444. (3) If the portion of the act upon which plaintiff’s petition is based, is within the title or germane to the title, then it is immaterial that other subjects not embraced within the title, are included in the act. In such a situation the appellant would have no complaint in the present case. A portion embraced in the title would be valid and the remainder invalid. St. Louis v. Transfer Co., 256 Mo. 496; State v. Rawlings, 232 Mo. 544. This court in passing upon the question must take into consideration not only the Act of 1911, but.must also take into consideration tbe sections there referred to in the Revised Statutes of 1909 and also the original act covering the employment of children as found in Laws of 1907 beginning at page 86. The title to the original act of 1907 is substantially the same as the title to the act of 1911. The title to the Act of 1907 has been expressly upheld by this court so that the question now presented to this court has long since been settled. Stricklen v. Printing Co.¿ 249 Mo. 621. The title to the Act of 1911, when considered in conjunction with the title to the Act of 1907 and the title to the acts contained in Revised Statutes 1909, is as clear and complete an index to the body of the act as it is possible to express in the English language. The real subject of all the acts is the employment of children. All of these acts regulate the employment of children. Some parts of each act prohibit the employment of certain children in certain industries, and permit their employment in other industries under certain conditions. Regulation of the employment of children under certain ages clearly implies the power to prohibit their employment in certain hazardous industries and to prescribe rules and regulations for their employment in non-hazardous industries. This is all the act in question seeks to do. When the title to an act indicates that it covers the subject of the employment of children under certain ages, it clearly notifies the public that the Legislature has acted upon the subject of the employment of children, and is notice to the public to examine the contents of the law to determine what those regulations are. The act in question is one of a series of acts passed in the development of this legislative policy to protect children and it should not be held unconstitutional unless it clearly and undoubtedly violates some specific provision of the Constitution. State v. Helton, 255 Mo. 181. (4) Appellant contends that because the title declares the purpose to be among others to “regulate” the employment of children between 1.4 and 16 years of age, Section 1726b is broader than the title, because it prohibits the employment of such children, in certain avocations deemed unusually hazardous. But this court has ruled that to prohibit is to regulate and that to regálate is to prohibit in a limited sense; that they are convertible terms, as used in the title and in the bill. St. Louis v. Russell, 116 Mo. 251; Cameron v. Middaugh, 57 Mo. App. 316; State v. Wright, 20 Mo. App. 412; Tarlrio v. Cook, 120 Mo. 1. The subject of the act in question as expressed in the title, is “The Employment of Children.” The section in question deals only with that subject. Under the decisions any provision of the act which has a natural connection with the subject expressed or with the employment of children, is included within the title. State ex rel. v. Gorden, 260 Mo. 639; Ewing v. Oblitzelle, 85 Mo. 71: State ex rel. v. Gorden, 261 Mo. 639-640; State ex rel. v. Vandiver, 222 Mo. 219; State v. Miller, 45 Mo. 479; State ex rel. v. Miller, 100 Mo. 439; State v. Morgan, 112 Mo. 202. An act is not unconstitutional because it deals with more than one phase of the same subject. Here, the subject is the “ employment, of children” and anything relating thereto is proper. Elting v. Hickman, 172 Mo. 237, 251; State v. Bixman, 162 Mo. 116; St. Louis v. Weitzel, 130 Mo. 614;' State v. Deering, 194 Mo. 408; O’Connor v.- Transit Co., 198 Mo. 633; State ex rel. v. Jocky Club, 200 Mo. 56; State v. Broadnax, 228 Mo. 25; State ex rel. v. Williams, 232 Mo. 75; State v. Cantwell, 179 Mo. 260.
   WHITE, C.

The plaintiff recovered a judgment in the Circuit Court of Lawrence County, in the sum of $5,000 for injuries received while employed by the defendant. The case was appealed by the defendant to the Springfield Court of Appeals and by that court transferred to this court because a constitutional question was involved.

The petition alleges that the defendant, who sued by next friend,, was a minor under the age of sixteen years, to-wit, 15 years of age; that he was employed by the defendant, unlawfully, to work at operating and to assist in operating the defendant’s “roller mill machinery,” contrary to the law which prohibits the employment of any child under sixteen years of age in operating or assisting in operating such machinery used in grinding mills; and that while plaintiff was so employed his hand was caught and drawn between the rolls of “said grinding corn mill” and was so crushed that the fingers of his right hand had to be amputated.

There was a second count in the petition based on common law negligence, but that was dismissed.

After a general denial the answer of the defendant specifically denies that the defendant at any time violated any law, “but avers and alleges the facts to be that the law attempting to prohibit the employment of minors as set forth in the Act of the. Legislature, approved April 7, 1911, and entitled, Schools, Compulsory Attendance of Children,’ as found in Session Laws of 1911, page 132, and under which the plaintiff seeks recovery herein, is null and void and of no effect, for the reason that the same was attempted to be passed and enacted by the Legislature of Missouri, in violation of Article IV, Section 28, of the Constitution of Missouri, in that said act contains more than one subject and the purposes thereof are not clearly expressed in its title.”

The answer then alleges contributory negligence. The reply was a general denial.

Evidence was introduced by the plaintiff to sustain the allegations of the petition in regard to the nature of the employment and the injury.

The defendant also introduced evidence upon its theory of the case. For the purpose of determining the case this evidence need not be set out.

It was admitted that the plaintiff was fifteen years of age, and that the injury occurred while he was employed by the defendant in assisting to operate a corn mill.

I. The jurisdiction of this court is questioned by the respondent. Many authorities are cited in illustrating the conditions under which a constitutional question presented in the record will give this court jurisdiction. A specific section and article of the Constitution must be pointed out, the question must be timely raised, it must be kept alive, the constitutional question must be passed upon by the trial court and ruled adversely to the appellant.

It is asserted by the respondent that while the particular section of the Constitution is pointed out, the particular section of the statute is not designated in that part of the answer raising the constitutional question copied above. The answer calls attention to the Act of 1911, and complains that the law “under which the plaintiff seeks to recover herein” is unconstitutional. This sufficiently designates the section of the statute at which the objection is aimed. The plaintiff did not need to be told what section he was proceeding under, nor, would the court need any additional specification.

- It is further claimed that the question was not kept alive. Before any evidence was introduced the defendant objected to the introduction of any evidence because “the petition fails to state the cause of action in the first count,” which raised the constitutional question. The defendant at the close of the evidence asked an instruction to the effect, that under the “pleadings and the evidence” the verdict should be for the defendant, which was refused. Both the motion for new trial and the motion in arrest of judgment allege that that court erred in refusing to sustain the objections made by defendant tó the introduction of any testimony under the first count of the petition for the reason that the statute under which the first count was drawn was contrary to Section 28, Article IY, of the Constitution of Missouri. It does not appear from the record what oral arguments were made in support of defendant’s objection to the evidence or in support of the instruction asked at the close of the evidence. It may he presumed that in those arguments the attention of the court was specifically called to the constitutional question. At any rate we think the record sufficiently shows that the question was kept alive, and was ruled on by the trial court in overruling the objection to the introduction of the testimony in refusing the instructions mentioned, and in overruling the motions for new trial in arrest of judgment.

II. The appellant claims the section of the act under which this suit is brought is unconstitutional in that the title to the act does not clearly express the sub-1 ‘ ject considered by that section. The title to the act is as follows:

“SCHOOLS: Compulsory Attendance of Children.
“AN ACT to repeal sections 1715, 1716, 1717, 1718, 1719, 1720, 1721, 1722, 1723, 1724, 1725 and 1726 of Article 5 of chapter 20 of the Revised Statutes of Missouri of 1909, pertaining to ‘Employment of children,’ and to enact in lieu therefor sections to be known as sections 1715, 1716, 1717, 1718, 1719, 1720, 1721, 1722, 1723, 1724, 1725, 1726, 1726a, 1726b, 1726c and 1726d, prohibiting, with exceptions, employment of children under fourteen years of age, and regulating the employment of children between fourteen and sixteen years of age, providing for the issuance of employment certificates for children between fourteen and sixteen years of age and prescribing penalties for violations thereof, arid to amend sections 10897 and 10907 of the Revised Statutes of Missouri of 1909, by striking out parts thereof, and to repeal sections 4744, 4745, 10903 and 10904, 10910, 10913, 10914, 10915 and 10916 of the Revised Statutes of Missouri of 1909.”

The sections repealed by the act were contained in the Act of 1907, the title to which is as follows:

‘ ‘ CHILDREN: Employment of.
“AN ACT entitled an act to regulate the employment of children in gainful occupations, when such children are under the ages of 14 and 16 years. Declaring the violation of certain sections a misdemeanor, and providing penalties for the violation thereof.” This suit is brought under Section 1726b, page 136, Laws of 1911, as follows:
Section 1726b. Children under the age of 16 not to he employed in certain occupations. — No child under the age of sixteen years shall be employed, permitted or suffered to work at any of the following occupations or in any of the following positions: Sewing machine belts in any workshop or factory, or assisting therein in any capacity whatever; adjusting any belt to any machinery; oiling, wiping or cleaning machinery or assisting therein; operating, or assisting in operating circular saws; wood jointers; wood shapers; planers; sandpaper or wood-polishing machinery; picker machines; machines used in picking wool; machines used in picking cotton; machines used in picking hair; machines used in picking upholstering material; paper-lacing machines; leather-burnishing machines; burnishing machines in any tannery or leather manufactory; job or cylinder printing presses, operated by power other than foot power; emery or polishing wheels used for polishing metal; wood-turning-or boring machinery; stamping.machines used in washer and nut factories; corrugating rolls, such as are used in roofing and wash-board factories; steam boilers; steam machinery; or other steam generating apparatus; dough brakes; or cracker machinery of any description; wire or strengthening machinery; rolling mill machinery, punches or shears; washing, grinding or mixing mills; calender rolls in rubber manufacturing; laundering machinery.”

Many cases have arisen in this court in which the body of the act has been held unconstitutional because varying from the purpose expressed in the title. [State v. Fulks, 207 Mo. 26, l. c. 33 to 39; Vice v. City of Kirksville, 217 S. W. 77, l. c. 80; Williams v. Railroad, 233 Mo. 666, l. c. 675-680; State v. Sloan, 258 Mo. 305, l. c. 311; Hardware Co. v. Fisher, 269 Mo. 271; State er rel. v. Gordon, 268 Mo. 713, l. c. 730-733; State ex rel. Greene County v. Gideon, 210 S. W. 358.] The ahoye eases are cited as illustrating how closely this court has held the Legislature to comformity to the Constitution in clearly expressing in the title the purpose of the enactment.

The following cases are more nearly in point in this case. In State v. Burgdoerfer, 107 Mo. l. c. 17, where the title of an act stated the subject to be to prohibit book-making and pool-selling and the body of the act purported to regulate book-making and pool-selling, the act was held unconstitutional. The court said, l. c. 17: “Does this act prohibit or regulate book-making and pool-selling? If it is one of prohibition, and this is clearly expressed in the title, the act is valid. On the other hand, if it is one of regulation, the act is invalid. ’ ’

Likewise it is held that authority to regulate does not authorize prohibition. The case of State v. Clarke, 54 Mo. l. c. 34, has this statement in regard to the word “regulate”. “It certainly implies the continued existence of the subject-matter to be regulated.”

The latest expression of this court upon the subject is State v. Crites, 209 S. W. 863, where the title of the act provided for certain regulation of legislative agents who were retained or employed for compensation to promote or oppose the passage of bills by the Legislature. A part of one section in the body of the act prohibited any person from accepting any employment for a compensation contingent upon the passage or defeat of any legislative measures. It was held that the part of the act under consideration was unconstitutional because it prohibited acts “which the title indicates are perfectly lawful.” As indicating that regulation set out in the title as the subject of the act will not authorize prohibition, see also Railroad v. Drainage District, 237 Mo. 86; State ex rel. v. Revelle, 257 Mo. 529; City of Kansas v. Payne, 71 Mo. 159, l. c. 162; Hardware Co. v. Fisher, 269 Mo. 271, l. c. 276-77.

The respondent cites some authorities stating a rule to the effect that where the Constitution or organic law authorizes a regulation, the Legislature or a municipal assembly may prohibit. It is possibly true that under the implied powers authorized by the Constitution a legislative body may have some latitude in carrying out the purposes of the authority given. Such cases would not be in point here. This is not a question of the Legislature carrying out its general powers granted in the Constitution, but it concerns the manner of enacting a statute where the Constitution requires that the subject of the act shall be “clearly expressed” in the title. There is no room for construction as to implied or doubtful authority where it must be clearly expressed. Respondent cites City of St. Louis v. Russell, 116 Mo. 248; City of Cameron v. Middough, 57 Mo. App. 312; City of Tarkio v. Cook, 120 Mo. l. In such cases where the title of an act stated the subject to be the regulation of livery stables, or peddlers, or billard halls, it was held that the body of the act which prohibited the operation of any such business in certain localities but allowed their operation elsewhere was constitutional; that such restriction ivas regulation and not prohibition. To prohibit livery stables from being maintained on certain streets while allowing them to be operated on other streets comes strictly within the definition of the term regulation.

The title of the Act of 1911, which repeals certain sections of the original act and enacts other sections in lieu of them, expresses the purpose as one “prohibiting, with exceptions, the employment of children under 14 years of age, and regulating the employment of children between 14 and 16 years of age.” These words clearly indicate that children under 14 years of age would be prohibited from certain employments and' would be permitted to engage in other employments, while those between 14 and 16 years of age would not be prohibited from any employment but their employment would be regulated.

Section 1726b would be in strict accordance with the title if it applied to children under 14 years of age, but the clear statement in the title would indicate that it could not include children between 14 and 16 years of age. If it merely regulated the employment of children .between 14 and 16, it would come within the title, but it prohibits their employment in certain factories altogether.

The regulation of the employment of children might very properly prohibit them from working more than certain hours in a day or week, or prohibit their employment except during particular specific hours in a day, or prohibit their employment except upon a' certain certificate in relation to their attendance at school, and other matters; their ability to read the English language; their condition of health and physical ability to perform the work, or their employment to sell papers in certain public places. All of that would be regulation of the same general character as the regulation as to the locality in which livery stables might be operated. Such regulation is actuallv provided for children in the Act of “3 911.

Section 1726b is void and unconstitutional because it does not come within the subjects expressed in the title of the act.

The judgment is reversed.

Bailey and Mosley, GO., concur.

PER CURIAM:

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

All of the judges concur.


source: Caselaw Access Project

author: MOZLEY, C. PER CURIAM:

license: Public Domain

text:
    THE STATE v. FRANK E. COLVIN, Appellant.
    Division Two,
    July 16, 1920.
    1. LIMITATIONS: False Pretense. A prosecution for obtaining money by false pretense is barred by the statute (Sec. 4945, R. S. 1909) “unless an indictment be found or an information be filed for such offense within three years after the commission of the offense” or unless some act on the part of the defendant prevents the running of the statute.
    2. -: -: Shown on Face of Indictment.. If the indictment pleads the day and year when the offense of obtaining money by false pretense was committed (as it should do), and the allegation shows that more than three years had elapsed between the time the offense was committed and the date on which the indictment was returned, the prosecution is barred, unless the indictment contains some averment of an act on the part of defendant that prevented the running of the Statute of Limitations; and the facts which avoid the bar of the statute must be pleaded.
    3. -: -: -: Conviction. A conviction of a defendant under an indictment charging the crime of obtaining money by false pretense, which shows on its face that the crime was committed more than three years before the indictment was returned, and which alleges no facts as an excuse for the delay in presenting the indictment, cannot stand.
    Appeal from Jackson Criminal Court. — Hon. Alonso D. Burns, Judge.
    Reversed and remanded.

      Morel M. Bogie for appellant.
    (1) The indictment on which the defendant was tried, which was returned in May, 1918, does not charge the defendant with the same offense as the indictment which was returned in February, 1916, and which was dismissed so as to bring the new indictment within the meaning of Sec. 4948, R. S. 1909, so as to prevent the running of the Statute of Limitations. King v. State, 151 Ala. 12; Greene v. State, 139 Ala. 157; Stafford v. State, 59 Ark. 413; Ross v. People, 162 Pac. (Colo.) 152. (2) To prevent the running of the Statute of Limitations, the same offense and the same offender must be charged in both indictments. 16 C. J. p. 232. (3) The defendant’s motions to quash and in arrest of judgment should have been sustained because the indictment on its face showed that the alleged offense is charged to have been committed on the-day of January, 1913, and that the first indictment was returned on February 6, 1916, more than three years after the alleged offense was committed, and the Statute of Limitations had already run against the offense. State v. Snyder, 182 Mo. 462; State v. McGrath, 19 Mo. 680; State v. Moore, 203 Mo. 628; Owens v. State, 119 Ga. 305; Hutchison v. State, 62 Ind. 556; State v. Ball, 30 W. Va. 386; People v. Young, 288 111. App. 210; People v. Weiss, 168 111. App. 502; People v. Jackson, 178 111. App. 355; 22 Cyc. 314, 316; Garrison v. People, 87 111. 96; Dreyer v. People, 176 111. 590; Lamkin v. People, 94 111. 501; Murphy v. State, 100Ind. 96; State v. O’Donnell, 81 Me. 271; State v. Shaw, 113 Tenn. 536; State v. Bruce, 26 W. Va. 153.

      Frank W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for respondent.
    (1) The offense charged was not barred by the three-year Statute of Limitation. Secs. 4945, 4948, 5115, 5114, R. S. 1909; State v. Duelos, 35 Mo. 238; State v. Hansbrough, 181 Mo. 351; State ex rel. v. Primm, 61 Mo. 171; State v. Healy, 50 Mo. App. 246; State v. Nicholas, 149 Mo. App. 123; People v. Buckner, 3 A. L. R. (111.) 1330, note; 12 Cyc. 258; 16 C. J. 232, sec. 358. (2) Indictment does not show bar of statute. The indictment does not show on its face, that it was barred by the three-year Statute of Limitation. Time not being of the essence of this offense, it was proper to allege that the offense was committed on the ——day of January, 1913, and that the first indictment was returned on February 8, 1916. Secs. 5115, 4945, R. S. 1909; State v. Moore, 203 Mo. 626; State v. McGrath, 19 Mo. 680’.
   MOZLEY, C.

The defendant was indicted in the Criminal Court of Jackson County on the 18th day of February, 1916, upon a charge of having obtained money from one William Reed by false pretense; this indictment was nollied by the State on the 17th day of May, 1918.

At the April term of said court, 1918, the grand jury returned another indictment against defendant and after reciting therein the filing of the first indictment, proceeds as follows: ‘‘And the grand jurors, aforesaid, upon their oath aforesaid, further present and charge that said Francis E. Colvin, whose Christian name in full is to these grand jurors unknown, late of the county aforesaid, on the-day of January, 1913, contriving, designing and intending to cheat and defraud the said William M. Reed of his money and personal property, did then and there unlawfully, feloniously, and designedly with the felonious intent then and there to cheat and defraud him, the said William M. Reed, apply to and request the said William M. Reed to trade, sell, transfer and deliver to him, the said Francis E. Colvin, a certain first-mortgage real-estate note, dated August 20, 1912, and signed by Ida B. Wilson, and being of the value of twelve hundred and fifty dollars, the personal property of William M. Reed .(a more detailed description of said note being to these grand juro'rs unknown), for and in exchange of a certain first mortgage real-estate bond-note of the purported value of fifteen hundred dollars, which said last named note, he, the said Francis E. Colvin, then and there had in his possession and under his control, claiming to be the holder and legal owner thereof and then and there had a lawful right and authority to negotiate said note and pass the title thereto to the said William M. Reed.” The indictment then proceeds to a conclusion.

I. “No person shall be tried, prosecuted or punished for any felony, other than as specified in the next preceding section, [which relates to capital and life imprisonment cases], unless an indictment be found or information be filed for such offense within three years a^er the commission of such offense, except indictments or informations for bribery or for corruption in office may be prosecuted if found or filed within five years after the commission of the offense.” [Section 4945, R. S. 1909.]

The three-years limitation in said section is the one having application to the case in hand.

If the crime was committed on the — day of January, 191.3, as alleged in the second indictment, and the first indictment was returned the 8th day of February, 1916, as alleged therein, then it is plain that from the date of the commission of the crime to the filing of said information three years, one month and seven days had elapsed before the first indictment was found.

II. The indictment upon which defendant was tried and convicted is bad because it shows on its face that more than three years had elapsed since the date of the commission of the crime and before the defendant was -indicted.

Time may not be of the essence of the offense, as is true in many cases, but when the month and year when the crime was committed is pleaded in the indictment it is certainly sufficient to mark the date when the Statute of Limitation began to run, which is from the date of the commission of the crime, unless some act upon the part of defendant interdicts its progress.

The indictment contains no averment of fact or facts which gives the State any plausible or legal reason why the filing of the indictment was so long delayed.

Offenses of the hind here charged, as above pointed ont, are barred in three years. And it is held by this court that the Statute of Limitations should be liberally construed in favor of the accused. [State v. Snyder, 182 Mo. 462.] The State must plead and prove the exceptions necessary to remove the bar of the Statute of Limitations. [State v. Snyder, supra; State v. Meyers, 68 Mo. 266; State v. Hopper, 21 Mo. App. 510; Wharton's Cr. P. and P. (9 Ed.) sec. 318; Blackman v. Commonwealth, 124 Pa. St. 578.]

In the Meyers case, supra, l. c. 268, the court said: “The better practice in such cases is to allege the true time of the commission of the offense charged, and set forth the facts which avoid the bar of the Statutes of Limitations as an excuse for not having preferred the indictment sooner.”

In the Snyder case,. supra, at page 498, it is held as follows: “On the other hand it has been ruled in many states that the prosecutor should allege the true date of the commission of the offense, and then set forth the facts which avoid the bar of the Statute of Limitations as an excuse for not having preferred the indictment sooner, and this was announced by this court as the better rule in State v. Meyers, 68 Mo. 266, and by the Supreme Court of Pennsylvania in Blackman v. Com., 124 Pa. St. 578; Wharton’s Cr. Pl. and Pr. (9 Ed.) sec. 318 and cases cited in note 2. Accepting, then,' the law as ruled in State v. Meyers, 68 Mo. 266, the circuit attorney should have pleaded the exceptions which were necessary to remove the bar of the Statute of Limitation.”

The other authorities cited above announce the same rule.

III. The view we take of the case renders unnecessary a discussion of the other points raised.

In the light of the foregoing authorities we are compelled, to hold that “the indictment is bad in that it fails to set forth the fact or facts therein which avoid the bar of the Statute of Limitations as an excuse for not having preferred the indictment sooner.”

We, therefore, reverse and remand the case to the end that the prosecuting attorney may, if he is so advised, again present the facts of the case to a grand jury where if they see fit another indictment may be returned against defendant- It is so ordered.

White, G., concurs ; Bailey, C.> not sitting.

PER CURIAM:

The foregoing opinion of Mozley, C., is hereby adopted as the opinion of the court.

All of the judges concur, except Williamson, J., not sitting.


author: .WHITE, C. PER CURIAM:

text:
    FRED A. H. GARLICHS AGENCY COMPANY and FRED A. H. GARLICHS, Appellants, v. LEONARD V. ANDERSON.
    Division Two,
    July 17, 1920.
    1. APPELLATE JURISDICTION: No Monetary Judgment: Other Relief. Where the object of the suit is not to obtain a money judgment, but other relief, the amount involved must be determined by the value in money of the relief to the plaintiff, or of the loss to the defendant should the relief be granted, or vice versa should the relief be denied.
    2. -: -: -: Injunction: Record Showing. In an injunction suit in which no money judgment is sought, appellate jurisdiction is determined by the money value to plaintiff of the object sought to be gained by the bill. And before the Supreme Court will take jurisdiction, it must affirmatively appear from the record that the amount involved brings the cause within its jurisdiction.
    3. -: Injunction:. To Restrain Breach of Contract. In a suit brought by an insurance agency to enjoin defendant from engaging in the insurance business for five years, in violation of his contract of employment for fifteen years at $140 per month, where no damages are asked, and the only issue is whether defendant has violated his contract, the Supreme Court has no jurisdiction of an appeal from a judgment for defendant.
    4. -: -: Gain or Loss: Speculation. The gain or loss to an insurance agency, and the gain or loss to its former employee, if a judgment restraining him from engaging in like business in the same community were rendered or refused, is purely speculative, and jurisdiction cannot be made to rest on such speculation. It is pure speculation to say that because the defendant was to receive $140 per month and the injunction seeks to enjoin him from engaging in the insurance business for five years, his engagement in business for himself during that time would yield $7500.
    Appeal from Jackson Circuit Court. — Hon. Allen C. Southern, Judge.
    Remanded to Kansas City Court oe Appeals.

      Kendall B. Randolph and Brewster, Kelley, Brewster $ Buchhols for Garlichs Agency Company.

      Broaddus <& Crow and John S. Boyer for Leonard Y. Anderson.
   .WHITE, C.

This suit was brought in the Circuit Court of Buchanan County to restrain by injunction the defendant from engaging in the insurance business in Buchanan County. The ease went on change of venue to Jackson County, where it was heard and plaintiffs’ bill dismissed. The plaintiffs appealed to the Kansas City Court of Appeals and that court sent the case here on the ground that it was without jurisdiction on account of the amount involved. In this court a motion has been filed to remand the case to the Kansas City Court of Appeals for want of jurisdiction in this court, (202 S. W. 260).

The petition states that the Fred A. H. Garlichs Agency is a corporation duly organized, and that the plaintiff Fred A. II. Garlichs is the owner and holder of a majority of the capital stock of said corporation; that the defendant Anderson has been for many years in the employ of the plaintiffs in the general insurance business. It is alleged that ou the 22nd day of January, 1916, the plaintiffs and the defendant entered into a contract in writing by the terms of which it was agreed that the defendant, for certain agreed compensation, should work for the plaintiffs in and about their business for a period of fifteen years and should devote his time to such business to the exclusion of other business and should at all times be faithful to the best interests of plaintiffs’ business, and account for all sums of money coming into his bands; the petition then proceeds:

“Said contract further provided that, in case either of the parties to said contract should violate the terms thereof in any material respect, then the other shall have the right to immediately terminate said contract so far as it provided for the employment of said Anderson.
“Said contract further provided that in case Leonard V. Anderson should voluntarily quit the service of said company, or voluntarily terminate his contract as to his employment, or in case the said company should terminate said contract as to the employment of the said Anderson, for any material violation of its terms by him, then in such event the said Anderson will not, at any time, either for himself or as an employee or associate, in any capacity, as a partner or otherwise, with any person or persons, or corporation, directly or indirectly through an office located in Buchanan County, Missouri, or at any other place, engage in any branch of the insurance business, or permit any other person, corporation, or association to use his name in any branch of such business, within the limits of Buchanan County, Missouri, for a period of five years after the termination of said contract.”

The petition then alleges that the defendant did materially violate his said contract and was guilty of a breach thereof, and largely overdrew his account with the corporation, and engaged in other employment and did not devote his time to the interest of the corporation, and did not faithfully discharge his duties, etc., and continued :

“Plaintiffs say that by reason of the failure of the defendant to fulfill the terms and conditions of said contract, the said contract was by the plaintiffs terminated on the 25th day of August, 1916; that immediately after the termination of said contract, defendant did engage, and is now engaged, in the insurance business, and is soliciting insurance, and did seek and obtain employment with one John Albus in connection with the insurance business now conducted by said Albus, and has been and is now associated with said Albus in said in- > surance business in Buchanan County, Missouri, and has been and is writing and seeking to write and solict insurance in said county and city, to the great and irreparable damages and injury to the plaintiffs, and threatens to, and will continue so to do, in violation of his said contract, and to the injury of plaintiffs, unless restrained and prevented from so doing.”

The plaintiff therefore prayed the court to issue a restraining order enjoining the defendant from engaging in the insurance business in Buchanan County until the 25th day of August, 1921.

The answer of the defendant admits the terms of the contract set out above, denies that the defendant materially violated the contract, avers that the defendant had always complied with all its conditions, denies the plaintiff lawfully terminated the contract on the 25th day of August, and alleges that the plaintiff unlawfully attempted to annul it and to discharge said defendant from the employ of the plaintiffs, and that such action was taken and brought about, not because of any breach of such contract on the part of the defendant, but because the defendant refused to sign a false and fraudulent statement of the condition of the insurance business located in Kansas City, Missouri.

The answer then sets up certain terms of the contract and' alleges that the plaintiffs had violated the same so as to relieve the defendant of his obligations under it.

The reply is a general denial.

I. On the trial of the cause evidence was offered attempting to establish the allegations of the petition and the answer, and it becomes necessary to determine whether this court has jurisdiction of the cause on account of the amount involved. Where the-object 0f the suit is not to obtain a money judgment, but other relief, the amount involved must be determined by the value in money of the relief to the plaintiff or of the loss to the defendant should the relief be granted or vice versa should the relief be denied. [Bowles v. Troll, 262 Mo. l. c. 382; State ex rel. v. Reynolds, 256 Mo. l. c. 718; Kitchell v. Ry. Co., 146 Mo. 457; McCoy v. Randall, 222 Mo. l. c. 34.] This applies particularly to injunction suits; the jurisdiction is determined by the money value to the plaintiff of the object sought to be gained by the bill. [Bowles v. Troll, 262 Mo. l. c. 381.] It must affirmatively appear from the record that the amount involved brings the cause within the jurisdiction of this court before it will assume jurisdiction. [Scheurich v. Light Company, 183 Mo. 499; Heman v. Wade, 141 Mo. 600-601.]

It is asserted by the respondent here that the amount involved is largely in excess of $7500, because the-suit involves the validity, or at least the construction of, the contract between the parties; the contract was to run for fifteen years, and the respondent’s salary during that period at the rate provided in the contract, $140 per month, would be very largely in excess of the jurisdiction of the Court of Appeals. While the construction of the contract necessarily is involved in this case, this suit could not fix the amount of damage which the defendant has suffered by reason of his dismissal. That would have to be determined in another suit brought by him. The “amount in dispute” in such case would settle the jurisdiction of the other cause, not this one. The fact that the pending cause affects collaterally or incidentally the rights of the parties which must be involved in some other suit does not affect the jurisdiction. The amount in dispute is the matter to be determined in the pending suit.

II. The only matter to be considered in determining jurisdiction is the value which would accrue to the plaintiff should the defendant be restrained from engaging in the insurance business in Buchanan County for five years, or the loss the plaintiff would sustain by reason of the defendant engaging in such a business. Or if the defendant’s gain or loss is to be considered, the question is what would he lose by being prevented from engaging in that business, or what would he gain by continuing in the business during the period of five years.

It is suggested by the Court of Appeals that inasmuch as his services in the plaintiff company were valued at $140 per month, amounting to $8400 in five years, his engaging in business for himself must be worth at least that much and therefore this court would have jurisdiction. That estimate is not justified. What is the market value to the defendant of being allowed to engage in the insurance business in Buchanan County for five years? Would it exceed $1500 a year, or $7500 for five years? He was willing to work for the plaintiffs for a salary very little in excess of that, on the theory probably that engaging in business for himself he would not earn as much. To' assume that his loss would be as much as his salary would be to assume that he could not engage in any other business or earn any money during that period which would reduce his loss.

To attempt an estimate of the gain or loss to the plaintiff would be pure speculation. The gain in restraining, or the loss in failing to restrain defendant, is beyond any reasonable calculation. There is not the slightest fact or circumstance in the record to indicate what it would be. There is nothing in the record to show that this court has jurisdiction, and the cause is therefore remanded to the Kansas City Court of Appeals.

Bailey and Mozley, GG., concur.

PER CURIAM:

The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.


author:
BROWN, C.
      PER CURIAM:

text:
    MINNIE BUSBY et al. v. ELIZABETH SELF et al., Appellants, and LUCY JOHNSON.
    Division One,
    July 19, 1920.
    1. QUIETING TITLE: Action at Law: Facts on Appeal. A -proceeding under Section 2535, Revised Statutes 1909, to ascertain and determine the title to land, with a prayer for partition among the parties who shall be adjudged to be the owners, where the issue is whether some of the parties are children or collateral kindred of the intestate, is an action at law; and the findings of fact, found -by the trial court sitting as a jury, no declarations of law being asked or given, are on appeal entitled to the same force as a verdict of a jury upon the same issues would be.
    2. LEGITIMACY: Children Born to Married Woman: Subsequent Marriage to Their Father. The words of the statute (See. 341, R. S. 1909) declaring that “if any man, having by a woman a child or children, shall afterwards intermarry with her, and shall recognize such chiíd or children to be his, they shall thereby be legitimated,” are words of remarkable breadth and clearness, referring distinctly to all men and women, and avoiding the word “unmarried” or any other word of limitation, and leave no room for disgusting inquiry as to the parentage of children, or whether at the time they were born the mother was lawfully the wife of another man, from whom she was divorced and subsequently married their father.
    3. -: -: -: Recognition. So far as the guilty father of children born of a married woman is concerned, his subsequent marriage to her, after she had been divorced from .a former husband, and his recognition of the children as his, are equivalent to the adoption provided by statute in other cases.
    4. -: - — : Presumption. The subsequent marriage by the father to the mother of children born out of wedlock and his recognition of them as his children place them in the same favorable position, under the statute, as one born during’wedlock; and such a child, after such recognition, can only be rendered a bastard by the same kind of proof that is required to overcome the. presumption of the legitimacy of a child born in the course of wedlock.
    Appeal from Jasper Circuit Court. — Hon. Joseph D. Perlcins, Judge.
    Affirmed.

      Frank H. Farris, John M. Stephens and H. L. Shannon for appellants.

      (1) The respondents and the defendant, Lucy Johnson, to sustain the judgment, in this case, rely on the provisions of Sec. 341, R. S. 1909. For the purpose of proving their descent from Frederick Molesdale, they were permitted to.introduce testimony tending to show that the said Frederick sustained illicit relations with his stepmother, Jane Molesdale, while she was living and cohabiting with his father, Isaiah M'olesdale. The law does not recognize such evidence as having any probative value. Jackson v. Phalen, 237 Mo. 142; Strode v. Ma'gowan, 2 Bush (Ky.) 621; Sergent v. Cumberland Mfg. Co., 112 Ky. 888, 66 S. W. 1036; Powell v. State ex rel. Fowler, 95 N. E. 660; Foote v. State, 144 S. W. 275, 65 Tex. Crim. App. 368; Flint v. Pierce, 136 N. Y. Supp. 1056. (2) While it has been held that the provisions of the 1 above statute are available to an adulterine bastard, the cases so holding are based on testimony wholly dissimilar to the evidence in this case, the issue in such cases being the offspring of the cohabitation of a married man with a single woman, or of either a married or single man with a married woman who was living separate and apart from her husband during the entire period of pregnancy under such circumstances as to make it wholly improbable and practically impossible that copulation could have taken place between her and her husband during the entire period of time when conception could have taken place. Miller v. Pennington, 218 111. 220,1 L. R. A. (N. S.) 773; Hawbeeker v. Hawbecker, 43 Md. 516; Drake v. Hospital Assn.,- 2:66 Mo. 1; Ives v. McNicholl, 59 Oh. St. 402, 69 Am. St. 780. (3) Isaiah Molesdale and Louisa Jane Woods were married in Crawford County, on September 9,1863. Lucy Johnson was born on the 6th day of April, 1867. Ezra Molesdale was born on the 21st day of December, 1868. Mary Ellen Molesdale was born some time prior to the birth of Lucy Johnson. The youngest child of Isaiah and Louisa Jane Molesdale was born some > time subsequent to the birth of Ezra Molesdale. From thé date of their marriage till some time after the birth of the youngest child, which must have been not earlier than the latter part of 1869, Isaiah Molesdale and Louisa Jane Molesdale lived together as husband and wife. The elopraent probably did not occur till about 1872, and Frederick and his step-mother were not married till September 9, 1874. From 1863 when Isaiah Molesdale and Louisa Jane were married they lived together continuously till Louisa Jane eloped with Frederick and during that time Isaiah Molesdale was not absent from home more than one week at a time. Isaiah Molesdale was a prolific progenitor, having had two children by his first wife, one by his second and four by his third. Louisa Jane Molesdale was a young woman when she eloped with her step-son, Fredrick, and while she lived with him continuously thereafter, no child was born as a result of her cohabitation with him. Under such circumstances the presumption that Isaiah Molesdale was the father of Lucy Johnson and Ezra Molesdale is practically conclusive. Scanlan w Walshe, 48 Am. St. (Md.) 488. (4) Where children are born to a man and woman while living together in lawful wedlock, the only evidence that will be admitted to. prove the illegitimacy of the children is either that the putative father was impotent, or that he was absent and had no access to his wife during the time when conception must have taken place. Scanlan v. Walshe, 48 Am. St. 488; Wright v. Hicks, 56 Am. Dec. 451; Cross v. Cross, 23 Am. Dec. 779; Commonwealth v. Shepherd, ,6 Am. Dee. 449; Eloi v. Mader, 38 Am. Dec. 192. (5) As a rule the declarations of a husband or wife concerning children born in wedlock are inadmissible to prove the illegitimacy of such children. Niles v. Sprague, 13 Iowa, 198; Crawford v. Blackburn, 77 Am. Dec. 323; Cross v. Cross, 23 Am. Dec. 778; Simon v. State, 37 Am. St. Rep. 802.

      J. D. Harris for respondents.
    (1) Appellants contend in effect that where a child is born in wedlock its legitimacy of. that wedlock is con. clusively presumed, unless it is conclusively shown that the husband of the marriage is impotent, or that there is no possibility of access on his part to the wife during the period of conception and gestation. To this contention in this case the respondents make two answers: First. That the children, whose parentage is here in question, namely, Elizabeth Johnson and Ezra Molesdale, were conceived after the separation of Louisa Jane from Isaiah W. Molesdale, when Isaiah W. could not have had access at the period of conception. Second. If these children were conceived before the separation of Isaiah W. and Louisa Jane Molesdale, still, the presumption of legitimacy of these children to the marriage of Isaiah W. and Louisa Jane is not conclusive but may be overcome, and that it may be overcome without the proof of impotency upon the part of Isaiah W. Molesdale or without the proof of absolute absence and inaccessibility on his part. (2) The presumption may be overcome “by any competent testimony sufficient to satisfy the mind of the tribunal before whom the question is made, to the contrary.” State v. Shumpert, 1 S. C. 85; Shuler v. Bull, 15 S. C. 421; Wilson v. Babb, 18 S. C. 72; Con. v. Wentz, 1 Ashm. (Pa.) 269; Comm. v. Shepherd, 6 Binn. 283, 6 Am. Dec. 449; Irwin v. Bailey, 123 N. C. 628; Wright v. Hicks, 12 Ga. 155, 56 Am. Dec. 451; State v. McDowell, 101 N. C. 734, 7 S. E. 785; Breidenstein v. Bertram, 198 Mo. 328; Adger v. Ackerman, 115 Fed. 124. (3) Under the facts of the case at bar it would be a harsh rule to deny the children’ of Frederick Molesdale the rights of heir-ship in his property and cast his estate on his collateral heirs.
   BROWN, C.

This' cause was instituted in the Circuit Court of Jasper County, in 1916. The petition states that on the 10th of June, 1916, Frederick Moles-dale died seized in fee simple of two hundred acres of landvand certain town lots, all fully described, situated in said Jasper County, leaving as his only heirs at law defendant Lucy Johnson, his daughter, and the plaintiffs Minnie Busby and Beatrice DeBow, his grandchildren, who are seized of said estate in fee, the plaintiffs being each seized of an undivided one-fourth and the defendant Lucy Johnson of an undivided one-half. That the defendants Elizabeth Self, Edward Molesdale, Maud Kell, Ora Imhoff, Preston Hickman and Fred Hickman claim some right, title or interest in and to said property, of the nature of which plaintiffs are not advised and are therefore unable to state the same. That the deceased left no indebtedness; that administration had been granted of his estate and that there is ample personal property to pay the funeral expenses and other expenses and liabilities. The prayer is that the court ascertain and determine the interests of the respective parties and partition same accordingly.

Lucy Johnson answered admitting the allegations of the petition to be true. All the other defendants answered admitting the ownership of the intestate as stated in the petition, denying generally the other allegations of the petition and saying that the intestate left surviving him as his only heirs the following named persons: “Minnie Busby, a niece of the half blood; Beatrice DeBow, a niece of the half blood; Lucy Johnson, a sister of the half blood; Elizabeth Self, a sister of the whole blood; Edward Molesdale, a brother of the half blood; Maud Kell, a niece of the half blood, and Ora Imhoff, a niece of the half blood, of the said Frederick Molesdale, and that the said heirs are the owners, and entitled to share in said real estate the following interests therein, to-wit: The said Lucy Johnson is the owner and entitled to an undivided one-sixth interest, the said Elizabeth Self is the owner and entitled to an undivided one-third interest, the said Edward Molesdale is the owner and entitled to an undivided one sixth interest, the said Maud Kell is the owner and entitled to an undivided one-twelfth interest, the said Ora Imhoff is the owner and entitled to an undivided one-twelfth interest, the said Minnie Busby is the owner and entitled to an undivided one-twelfth interest and the said Beatrice DeBow is the owner and entitled to an undivided one-twelfth interest,.in and to said real estate.” They join in the prayer for partition.

The cause came on for trial, and after hearing the evidence the court found the allegations of the petition to he true, and entered its decree that the land be sold and the proceeds distributed among the plaintiffs and the defendant Lucy Johnson according to their respective interest as therein stated. This appeal is taken from the interlocutory judgment so entered. The sole question presented here is whether Ezra Molesdale, the father of plaintiffs, and the defendant Lucy Johnson were within the meaning of the statute relating to descents and distributions children of Frederick Moles-dale. If so, the judgment appealed from is right; if not, it is wrong and the defendants and plaintiffs would, as collateral heirs of Frederick Molesdale, take the entire estate.

The facts are very simple. Isaiah Molesdale, the ancestor of all the parties, resided in Lancaster England where he married a wife by whom he had two children: Frederick Molesdale, this intestate, and Elizabeth Moles-dale who, as Elizabeth Self, is the principal defendant in interest. The wife died, and he married another wife in England, by whom he had one son, the defendant Edward Molesdale, who never came to America. He divorced his second wife "or she divorced him; it'makes no difference which, and she retained the child. In 1857 he came to America, bringing with him his two children, Frederick, then sixteen years old, and Elizabeth, then about three years younger. They settled in Crawford County, Missouri.

In August, 1862, Frederick enlisted in the National Army, and-served during the remainder of the Civil War, being mustered out in August, 1865, at Steelville. He then came to live with his father, who had in 1863, married Louisa Jane Woods, a girl much younger than Frederick, who continued a member of the family, and whose association with the girl step-mother is the ground in which the seeds of this miserable controversy were planted. It is said in .the testimony that before his enlistment Frederick was “keeping company” with the girl and that his father told her he had been killed, but this was very possibly idle gossip. At about the time of this reunion, Mary Ellen was born to the newly married pair. Her paternity is not questioned. She grew up and married and became the mother of the defendants Mrs. Imhoff and Mrs. Kell. After Frederick came home the father operated a mill, which he owned seven or eight miles distant from his residence, and where it appears he frequently remained through the week. During this time friction arose between the father and son concerning the association of the latter with his step-mother, and this had arrived at such a bitter stage at the time Mrs. .Johnson was born, which was about one and a half years after the return of Frederick, that the father, who was in the yard with his horse when his wife became ill, refused to obtain a doctor, and rode away, leaving her in the yard, where the child was born. It is unnecessary to follow the revolting story which this proceeding has sown broadcast, further than to say that the ill-assorted husband and wife continued to live together in Crawford County after this event. Ezra was born, and afterward another child. These the husband disowned. The last one died in infancy, but before its death he formally disowned it. Finally Frederick and his step-mother left Crawford County, taking all the children with them; first going to Kansas and afterward, returning to Missouri, they settled in Jasper County, where they lived as husband and wife, raised and educated the two children. Lucy and Ezra, accumulated the estate in controversy and died. The old man wanted the child Mary Ellen, which he claimed as his own. Mrs. Self and her husband were unwilling that he should go after it and accordingly it was arranged that Mr. Self should go and get her undei the pretense that he desired to educate her. This he did. In the meantime the mother had gone to Crawford County and obtained a divorce from her husband and married the father of her children. It is unnecessary to say that this was done with the acquiescence of the family, for it is impossible to imagine that it could have been accomplished otherwise.

When Isaiah W. Molesdale died in 1893, W. J. Self, husband of the defendant of that name, took out letters of administration in the Probate Court of Crawford County on his estate. The sworn application enumerated the sole heirs as Frederick Molesdale, of Jasper County; Elizabeth Self, of Crawford County; Mary Ellen Malcolm (deceased) of Crawford County, and W. E. Molesdale, of England, whom we have called Edward. These are the four children that he acknowledged. The list includes neither Ezra nor Mrs. Lucy Johnson. Mr. Self died before fully administering the estate, and the defendant Mrs. Self was appointed his administratrix and made final settlement in the Molesdale estate on this basis.

I. This is primarily an action to try title under the provisions of Section 2535, Revised Statutes 1909. Partition is asked among the parties who shall be adjudged the owners. The petition charges the plaintiffs and the defendant Mrs. Lucy Johnson to be the sole owners as against the other parties named as claimants and asks judgment accordingly. The issue as made by the pleadings relates solely to the legal title and was tried by the court without a jury, and without declarations of law asked or given, so that the findings of the court are entitled to the same force as the verdict of a jury upon the same issue. For that reason we will presume the existence of facts pertinent to the issue which the evidence tends plainly to support by the preponderance which the law requires upon the particular issue, which is whether, as the court found, the respondents are the sole owners of the premises in question by inheritance from Frederick Molesdale who is admitted to be the common source of title. We have already stated the principal facts relating to this question, and will as we proceed make further reference to them if necessary.

The question is whether Ezra Molesdale, the father of the plaintiffs, and defendant Lucy Johnson, were, under the provisions of Section 341, Revised Statutes 1909, shown to he the legitimate children of Molesdale. The cause was tried by the appellants upon the theory that children born in wedlock are conclusively presumed to have been begotten by the husband until its impossibility is shown. This ancient doctrine, borrowed from the civil law, has been modified from time to time to conform to the circumstances of particular cases or the idiosyncrasies of particular judges, but these modifications have frequently tended to defeat or impair one of the principal objects of the rule by the public exhibition in court of matters calculated to suffuse with blushes even the judicial cheek. The rule rested upon the preservation and encouragement of public morality, with incidental protection to the child born in lawful wedlock from the stigma of illegitimacy, and with no thought of the moral right that the innocent child might have against his guilty progenitor for the same protection. Nor did it take into consideration the subjection of the adulterine child to the tender mercies of a father forced upon it by law and who would treat it as an interloper.

The Legislature, which speaks as the mouthpiece of the public policy of the State, held all these things in careful consideration when it enacted this section. While it did not abate one jot in its condemnation of immorality, it looked broadly to the protection of the innocent and wronged and helpless child, giving the guilty an opportunity to redress, as far as possible, the wrong they had perpetrated against their own children, and the outraged husband the opportunity, without the duty, to surrender the result of his connubial shame to its natural protection. Bearing these things in mind we will read the law. It refers distinctly to every “man, having by a woman a child or children.” This is an expression of remarkable breadth and clearness. It refers distinctly to all men and all women, avoiding in each case the word unmarried or any other word of limitation; The succeeding words “shall afterward intermarry with her” is equally expressive, and refers to the time as any time when the two shall become husband and wife, and the section then proceeds to state that such child or children shall be legitimated by his recognition of them. Every word of the section is plain, simple and unequivocal, and leaves no room for doubt or misunderstanding. Nor does it. leave any room for disgusting inquiry as to the parentage of the children. The elements of decency and morality are intimately and skillfully blended with the elements of justice. It is clean. So far as the guilty father is concerned, the marriage and recognition are equivalent to the adoption provided for by statute in other cases. One cannot read the section without admiration for the delicacy with which the Legislature has refrained from providing that all the shameful circumstancs be made a matter of public record and in that form hung around the neck of the only innocent party to the transaction. It will be noted that when the parties are married the act of the husband alone creates this relation and his estate alone is involved in this proceeding. The court has found from evidence that could lead to no other result, that he claimed Lucy and Ezra as his own natural children; that the former husband, in whose yard one of them was born, charged him with their paternity and surrendered them into his custody. The record shows that the marriage through which the children were legitimated was performed later, and after Frederick and his step-mother wife had lived together in Jasper County as husband and wife for at least two or three years. From the circumstances of this marriage it is evident that there was an agreement between the father and son as to the status of these children. She went to Crawford County, the home of her husband, to procure a divorce which could alone make possible a marriage with the son, and having procured it went back to her new home in Jasper County where the ceremony seems to have been performed. All these appellants claim as collateral heirs of Frederick by descent through his father and are bound by the status which he lawfully created.

The question we have considered is not a new one, but has been before this court on many occasions and has in every case been decided in accordance with these views. [Drake v. Hospital Association, 266 Mo. 1; Nelson v. Jones, 245 Mo. 579; Breidenstein v. Bertram, 198 Mo. 328; Gates v. Seibert, 157 Mo. 254; Johnson v. Johnson’s Admr., 30 Mo. 72; Adger v. Ackerman, 115 Fed. 124.]

II. Having reached the conclusion that by the operation of the statute we have been considering the marriage of Frederick to the mother of Lucy and Ezra and taking them into his home and recognizing them as his own natural children legitimated them as for all purposes, including that of inheritance, the finding of the court on the issue of their legitimacy leaves little more to be said. This little we will say simply by way of caution.

We have already said that the provisions of Section 341 were laid by the Legislature upon the same foundation of decency and justice that already supported the presnmntion of legitimacy by birth In lawful wedlock. It gave the parties the right, by convention, to close the book in which was written the shameful story of wrong and infidelity and to seal it with the seal of repentance and reparation which could not be broken by themselves or by those whom they had the power to bind in the distribution Of their several estates. That by compliance with the terms of the statute the doubtful paternity of the offspring is settled to the extent that they become legitimate children of the conventional father by its operation, we have no doubt. Nor do we doubt that under the conceded facts of this case the trial court could not have reached a different conclusion than that announced by its judgment.

In this case the children are here not only acquiescing, hut strenuously asserting their conventional and ■statutory parentage. We do not desire to he understood as expressing any opinion upon the question whether or not they might, on sentimental or material grounds, dispute it in a proper proceeding. The most solemn contracts may he avoided for fraud. or mistake, and there is some reason in the proposition that legitimation by statutory convention is not more conclusive in its character than the legitimacy which arises from birth in lawful wedlock.

This feature was ably referred to by a very eminent Judge of the United States Circuit Court of Appeals of this circuit in Adger v. Ackerman, supra, a ease arising under this same statute. He said (p. 136): “In the present case it is not necessary l*o adopt the extreme view that recognition of an illegitimate child by a man who has married its mother is conclusive proof of paternity which no evidence can overturn, and hence that the legitimacy of a child born out of wedlock, if it is recognized, by force of the statute is placed on a firnier foundation than the legitimacy of a child born in lawful wedlock, and no decisive opinion need be expressed on that point. I think that it is true, however, that by the recognition of a child born out of wedlock, under the circumstances aforesaid, such a child is placed in the same favorable position as one born during wedlock; that it can only be rendered a bastard, after such recognition, by the same kind of proof which is required to overturn the legitimacy of a child born in the course of wedlock; and that it is entitled to the benefit of the same presumptions. ’ ’

There being no evidence in this case to overthrow the statutory presumption of legitimacy founded upon the acts of the parties, the judgment of the Circuit Court for Jasper County could not have been otherwise, and it is accordingly affirmed.

Ragland and Small, CC., concur.

PER CURIAM:

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

All of the judges concur, except Woodson, J., absent.