author: GANTT, J.

text:
    THE STATE ex inf. HADLEY, Attorney-General, ex rel. WAYLAND, Appellant, v. HERRING.
    Division Two,
    December 24, 1907.
    1. COUNTY COLLECTOR. The office of county collector is of statutory, not constitutional, origin.
    2. -: Expiration of Term. By statute the term of the county collector expires on the first Monday in March.
    3. -: Vacancy: Tenure. Under section 7028, Revised Statutes 1899, a person appointed hy the Governor to fill a vacancy in the office of county collector, holds the office until the first Monday in March -after the last preceding general election at which his successor is required to he elected.
    4. CONSTITUTIONAL STATUTE: Sec. 7028, R. S. 1899: Title: Vacancy in Office. The title to the Revised Bill of 1879 on Elections, of which section 7028, Revised Statutes 1899, is a part, entitled, “An act to amend and revise chapter 2, title 2 of the general statutes of Missouri concerning popular elections,” is sufficiently comprehensive to embrace an amendment to said section 7028 giving to the Governor power to fill vacancies in county offices and fixing the tenure of his appointees.
    5. -: -: -: -: Revised Bill. Nor is said section unconstitutional because said changes and amendments in the existing law were made by a revised bill which embraced the whole article of which section 7028 was a part. The title to the act being sufficiently comprehensive to embrace the congruous subject of filling vacancies in county elective offices not theretofore provided for in the chapter on elections-, it is immaterial that the changes were made by a revised bill.

      6. -: Amendment: Setting Out Words Added, In amending a statute it is not necessary that the amendatory act designate the words which constitute the amendment. It is sufficient if the statute be set out in full as amended.
    7. VACANCIES: County Collector: Tenure of Appointee: Constitutional Provision. The Constitution, section 11, article 5, provides: “When any office shall become vacant, the Governor, unless otherwise provided by law, shall appoint a person to fill such vacancy, who shall continue in office until a successor shall have been duly elected or appointed and qualified according to law.” Held, that the person appointed by the Governor to fill the vacancy in the office of county collector, held the office until the first Monday in March next after the next general election for the election of county collectors, and not simply until the qualification and demand for the office by the person elected at such next general election.
    8. -: Natural Meaning: Rest of Term. The natural significance of the word “vacancy” when understood with reference to the context in said section of the Constitution, is that the Governor’s appointee will hold the office for the rest of the term in which the vacancy occurs.
    9. -: County Collector: Legislative Office. The office of county collector is a legislative office, created by statute, and the General Assembly had power, under section 14 of article 9 of the Constitution, to provide for his election or appointment, and to prescribe the term which the person elected, or the person appointed to fill a vacancy in the term, might hold. Under that constitutional provision the General Assembly had power to authorize the Governor or some other public functionary to fill the vacancy in such county office, and as it authorized the Governor by section 7028, Revised Statutes 1899, to fill the vacancy, he derived his power from that statute, and the person appointed by him holds for the time designated therein, which is, in case of county collector, until the first Monday after the next géneral election at which his successor is elected.
    10. -: Election to Two Terms. Where relator was simply elected to the office of county collector at a general election held in 1906, it cannot be held that he was elected both for the unexpired term and the ensuing regular term, but the natural inference, where nothing to the contrary appears, is that he was elected for the ensuing regular term.
    Appeal from Chariton Circuit Court. — Hon. Jno. P. Butler, Judge.

      Astirmed.

      Herbert 8. Hadley, Attorney-General, J. A. Collet and Perry 8. Rader for appellant.
    (1) The words of section 11 of article 5 of the Constitution, declaring that the Governor’s appointee “shall continue in office until a successor shall have been duly elected and qualified according to law, ’ ’ mean exactly what they say, no more, no less. The Legislature could not enlarge them to mean the whole of the unexpired term. They mean that the Governor could fill the vacancy by appointment for that part of the term extending up to the election and qualification of the appointee’s successor, and that the balance of the term belongs, after his qualifying, to the person elected at the election provided by law for the election of collectors ; and, any attempt by section 7028, Revised Statutes 1899s, or any other statute, to extend the tenure of the Governor’s appointee beyond the time of the election and qualification of his successor, was an enlargement upon the constitutional limitation, and to that extent was unconstitutional and void. Sec. 11, art. 5, Constitution; 23 Am. and Eng. Ency. Law, 406; Smith v. Askew, 48 Ark. 82; Westbrook v. Rosborough, 14 Cal. 182; State ex rel. v. Thomas, 10 Kan. 159; Meredith ex parte, 33 Gratt. (Va.) 119'; State v. Lyles, 1 McCord (S. C.) 239; State v. Hutson, 1 McCord (S. C.) 240; Griebel v. State, 111 Ind. 175; Douglass v. State, 31 Ind. 429; Beale v. State ex rel., 49 Ind. 41; Hale v. Evans, 12 Kan. 562; State ex rel. v. Cobb, 2 Kan. 55; Bond v. White, 8 Kan. 340; Biddle v. Willard, 10 Ind. 62; Mannix v. Selbach, 31 Colo. 502; Jones v. Sizemore, 117 Ky. 810; State ex rel. v. Holt, 67 Oh. St. 303; People v. Campbell, 138 Cal. 16; People v. Knopf, 198 Ilk 340; People v. Fitzgerald, 180 N. T. 269; Parmaster v. State, 102 Ind. 90; Paine on Elections, sec. 208 p. 180; State ex rel. v. Harvey, 8 Oh. Circ. Ct. 599; People ex rel. v. Lord, 9 Mich. 227; Attorney-General v. Burn-ham., 61 N. H. 594; Opinion to Governor, 25 Fla. 427; State ex rel. v. Murphy, 32 Fla. 138; People v. Hardy, 8 Utah 68; Tillson v. Ford, 53 Cal. 701; State ex rel. v. Chatburn, 63 Iowa 659; Peters v. State Board of Canvassers, 17 Kan. 367; Marshall v. Horwood, 5 Md. 423; Fant v. Gibbs, 56 Miss. 396; Rodwell v. Rowland, 137 N. C. 617. (2) The words “until his successor shall have been duly elected and qualified,” whether used in constitutions or statutes,- mean that the appointee is to hold the office until an election appertaining to that office is held at which a successor is elected by the people and the qualification of the person elected by giving bond and taking the oath. State ex rel. v. Perkins, 139 Mo. 106; State ex rel. v. Chatburn, 63 Iowa 659; Mechem’s Pub. Off., sec. 395; Iíench v. State, 72 Ind. 297; Opinion to Governor, 25 Fla. 427; State ex rel. v. Medium, 31 Kan. 435; Hagerty v. Arnold, 13 Kan. 367; People ex rel. v. Lord, 9 Mich. 227; People v. Palmer, 91 Mich. 283; Loomis v. Coleman, 51 Mo. 21; State ex rel. v. Manning, 84 Mo. 661; State ex rel. v. Conrades, 45 Mo. 47; State ex rel. v. Seay, 64 Mo. 89; Beale v. State ex rel., 49 Ind. 41; State ex rel. v. Ewing, 17 Mo. 515. (3) The statute can neither lengthen nor shorten the tenure -fixed by the Constitution. McCrary on Elections, sec. 351; People v. Rosborough, 14 Cal. 180; Howard v. State ex rel., 10 Ind. 99; Commonwealth v. Gamble, 62 Pa. St. 343; People , ex rel. v. Ballou, 23 HI. 547; State ex rel. v. Thomas, 10 Kan. 159; Meredith ex parte, 33 Gratt. (Ya.) 119 ;• State v. Hutson, 1 McCord (S. C.) 240; Griebel v. State, 111 Ind. 375; Peters v. State Board of Canvassers, 17 Kan. 367; People v. Knopf, 198 111. 340; State ex rel. v. Hall, 67 Oh. St. 303; People v. Fitzgerald, 180 N. Y. 269; State ex rel. v. Plasters, 105 N. W. 1092; People ex rel. v. Bull, 46 N. Y. 58 — a very illumiuating case; People v. Campbell, 138 Cal. 11. (4) The word “tmtil” is a word of limitation. State ex rel. v. Perkins, 139 Mo, 109'; People v. Fitzgerald, 180 N. T. 274. (5) Where the office is an elective one, the reason for the use of the words “until a successor shall have been duly elected and qualified” is apparent. It is against the policy of the law that a public office should remain vacant. The office being elective, the people can fill a vacancy therein only at an election. The constitutional provision (sec. 11, art. 5) contemplates no special elections to fill vacancies, but it does provide for a general election to be held on the first Tuesday after the first Monday in November of all even-numbered years. Sec. 1, art. 8. And section 9203, Revised Statutes 1899, makes the office of collector elective. The purpose of the Constitution, therefore, was that the vacancy should be filled by appointment until the people had an opportunity, in an orderly and regular way (as indicated by the word “duly”), to fill the vacancy by electing some one thereto, who should fill out the balance of the unexpired term. Rodwell v. Rowland, 137 N. C. 622; State ex rel. v. Cobb, 2 Kan. 55; Jones v. Sizemore, 117 Ky. 810. (6) Where doubt exists as to the tenure of one appointed to fill a vacancy in an elective office, the interpretation is to be followed which limits it to the shortest time, and returns to the people at the earliest period the power and right to refill it. Opinion of Judges, 114 N. O. 929'; Rodwell v. Rowland, 137 N. C. 623; Wright v. Adams, 45 Tex. 134. (7) The statutes do not extend respondent’s tenure to the first Monday in March, 1907. Section 9267, Revised Statutes 1899, is to be considered an exception to section 7028, and it extends tire tenure of “all collectors appointed ... to fill vacancies” only to the qualification of their successors. State ex inf. v. Dabbs, 182 Mo. 359. (8) An extended examination of the original bills in the office of the Secretary of State and of the Session Laws has convinced us that neither section 7028 nor section 9267 was enacted in the manner required by the Constitution, and for that reason both sections are invalid. Section 7028 is first found in the Revised Statutes of 1879, as section 5527. It appears in the Revised Statutes of 1889 as section 4705. Neither the article nor the chapter of which it forms a part was a revised bill in the Revised Statutes of 1889, nor was either a part of a revised bill in the Revised Statutes of 1899. Hence, it comes to us with exactly the validity it had in the Revised Statutes of 1879', no more no less. The mere printing* of it in the Revised Statutes of 1889 and of 1899, did not add to its validity, nor take from its validity. Bowen v. Railroad, 118 Mo-. 545; Brannock v. Railroad, 200 Mo. 561. Section 5527, Revised Statutes 1879, is a part of a revised bill, and that bill appears as chapter 101 of Revised Statutes of 1879. That chapter is headed “Of Elections.” It has 85 sections. The bill is entitled, “An act to amend and revise chapter two, title two of the General Statutes of Missouri concerning Popular Elections.” Chapter 2, page 59, of General Statutes of 1865, is headed “Of Popular Elections.” Section 46 of that chapter (p. 65, G. S. 1865) provides for the filling of vacancies in the office of judge of the Supreme Court, Circuit Court, Secretary of State, State Auditor, State Treasurer, Register of Lands, Attorney-General, Circuit Attorney, Assistant Circuit Attorney, judge of the criminal and judge of the probate court of St: Louis county, but it says nothing about a vacancy in office of any county officer, and it is a very different statute from section 7028. There is no provision in that chapter in reference to filling vacancies in county offices. It provides that in case of vacancy in any of said offices named, the Governor, if such vacancy “occurred- more than twelve months before a general election for such officer, shall issue his writ of election to fill such vacancy. If such-vacancy shall occur less than twelve months before a general election for said officer, suck vacancy shall be filled by appointment by the Governor, and the person so appointed to such office shall hold his office until his successor shall be elected and qualified.” This revised bill makes a radical change in the existing law. Section 5527 of this revised bill took out of the hands of the county court the power to fill vacancies in the office of county collector, assessor and' other county offices, and vested that power in the Governor. That of itself was a radical change. It extended the tenure of all persons appointed to fill vacancies, which the existing law terminated upon the election and qualification of their successors, to at least the first Monday in January after the election of their successors, in all cases, and in some cases to the first Monday in March, and it made that extended tenure applicable to all appointees,. whether to fill vacancies in a State or a county or a judicial office. That was another radical change, and conferred a privilege of tenure upon an appointee that was not then enjoyed' by any officer appointed to fill a vacancy.. It took away from the people the right to fill by special election a vacancy in any State or judicial office, if the vacancy occurred more than twelve months before the next general election “for such officer,” and vested in the Governor the right to fill the vacancy, not only until the next general election, but until the first Monday in January thereafter or longer. That was another radical change. The existing law made the tenure of the appointee, in all eases, terminate with the election and qualification of his successor; this statute made his tenure extend at least to the first Monday in January after the election and qualification of his successor. That was another radical change. This section of the statute was made applicable to all offices in any county except sheriff, coroner and representative, and thereby affected a large class of public functionaries, and there is nothing in the title of the act of which it is a part to indicate that any change in the power of the county court or the mayor of St. Louis to fill vacancies was contemplated by the act; and that the revisers themselves did not understand that it applied to county collectors is shown by the fact that by section 6792 of the Eevised Statutes of 1879' the county courts and mayor are still given power to fill vacancies in the office of collector of the revenue, and that section ■has been carried forward without change into the revision of 1889 (R. S. 1889, sec. 7647) and into the revision of 1899 (R. S. 1899, sec. 9267). Chapter 2, title 2, General Statutes 1865, said nothing about the filling of vacancies in county offices, nor did the act of 1872, nor the act of 1875, nor the acts of 1877, which were incorporated in the revised bill which became chapter 101, Reviséd Statutes 1879. Vacancies in county offices had been provided for by other statutes, those in the offices of collector and assessor by the chapter on Revenue; and nowhere in any election law enacted prior to the enactment of this revised bill was anything said about vacancies in county offices; and in no general law was. it provided that the person appointed to fill a vacancy could hold beyond the election and qualification of his successor. So that this section 5527 not only made a radical change in the existing law, but it embraced subjects which had never before been a part of any election law, and was in many respects an .entirely new enactment. Now, the whole question is, can the General Assembly by a revised bill make so radical a change in the existing law as is made by section 5527, now section 7028? If it can, then the Legislature has an unlimited and unrestricted power to enact any law it wishes to enact, by incorporating it in a revised bill. If it can, then the restriction found in section 28, article 4, Constitution, that “no bill shall contain more than one subject, which shall clearly be expressed in its title, ’ ’ has no application to revised bills, but is to be applied only to bills which undertake to enact a new law or by separate enactment to amend an existing law. To make that distinction would be unreasonable. New bills introduced in the regular order by a member of his own motion, whether to enact a new or to amend an existing law, are often short, and do not embrace more than one subject. That is their usual characteristic, and would be were not section 28 a part of the Constitution. But revised bills often contain a large number of sections, yet they can be given a short title that refers to the subject-matter of each, for their purpose is to unify, harmonize, correct and perfect “the statute laws of a general nature, ’ ’ and not to bring forward for consideration new legislation or a radical change in existing law. If such legislation and radical changes can be made by a revised bill — if the title to that bill does not need to indicate the radical change it makes— then the purpose of section 28 is destroyed; it can easily be circumvented by the skillful or unscrupulous legislator, and the most important legislation can be enacted without any notice in the title either to members of the General Assembly or to the people. A reasonable construction of section 28 would require the title to a revised bill to give some sort of indication of what is embraced in the bill, and make it apply to revised bills as well as to other bills; and a reasonable construction of section 28 and of section 41 of the same article, by which is given the General Assembly’s power to revise “the statute laws of a general nature,” would exclude from a revised bill everything that is in the nature of a new enactment or that makes a radical change in existing statutes. There is nothing in the Constitution that says the provisions of section 28' in reference to the title to an act shall not apply as well to revised bills as to other bills. _ It should, as to revised bills, be so construed as to afford a workable basis, but a workable basis does not mean that it can be entirely ignored. State ex rel. v. County Court, 102 Mo. 531. A title that indicates a revision of the general election laws does not give notice of a provision for filling vacancies in office or of a change in the officer’s tenure. State ex inf. v. Lincoln Trust C'o., 144 Mo. 595. This court has never yet decided just what may he embraced in a revised bill, and in consequence it is difficult to cite authorities exactly in point. But the following may somewhat aid the court in passing on the question here raised; Secs. 28, 34, 41, art. 4, Mo. Constitution; State ex rel. v. County Court, 102 Mo. 531; Langston v. Canterbury, 173 Mo. 129; State ex rel. v. Heidorn, 74 Mo. 410; State ex rel. v. Woodson, 128 Mo. 497; State v. Great Western Coffee & Tea Co., 171 Mo. 634; Lewis v.. Dunne, 55 L. R. A. 833; State v. Sholl, 58 Kan. 507; Shively v. Lankford, 174 Mo. 543; Stuart v. Kinsella, 14 Minn. 524; Wulftange v. McCollum, 83 Ky. 361; Dolese v. Pierce, 124 111. 140.

      H. J. West for respondent.
    (1) Sec. 11, article 5, of the Constitution, providing that: “When any office shall become vacant, the Governor, unless otherwise provided by law, shall appoint a person to fill such vacancy, who shall continue in office until a successor shall have been duly elected or appointed and qualified according to law,” was meant to enlarge and not restrict the tenure of office otherwise provided. Its purpose was to prevent vacancies in office. State ex rel. v. Thompson, 38 Mo. 192; State ex rel. v. Smith, 87 Mo. 158; State ex inf. v. Smith, 152 Mo. 512; People ex rel. v. Potter, 47 N. Y. App. 375. (2) By the express terms of section 11, article 5, of the Constitution its provisions are only to be applied when no other provision is made by law; so if section 7028, Revised Statutes 189.9, does make other provision, then that provision of the Constitution does not apply. State ex inf. v. Lund, 167 Mo. 228. (3) The office of collector of the revenue is a statutory office. Being the creature of the statute; the legislative department had the constitutional right, under terms of section 14 of article 9 of the Constitution, to prescribe the term of office (which could not exceed four years) and how. the officer should be chosen. It had the right to prescribe how, by whom and for what term officers should be chosen to fill vacancies, as well as for the regular term. It was authorized to provide either for the election or appointment of the officer; and did provide that the officer for the regular term should be elected, and that vacancies should be filled by. appointment by the Governor, and that the person so appointed should be entitled to hold the office until the beginning of the succeeding term. Sec. 11, article 5 would still be effective and would entitle the appointed officer to hold after the beginning of the succeeding term, if his successor had not been elected and qualified according to law. State ex rel. v. Lusk, 18 Mo. 332; Advisory Opinion upon the Election of Circuit Attorneys, 38 Mo. 419; State ex rel. v. Davis, 44 Mo. 129; Magner v. St. Louis, 179 Mo. 495; People ex rel. v. Comstock, 78 N. Y. App. 356; Long v. Mayor, etc., of New York City, 81 N. Y. App. 425; State ex rel. v. Stonestreet, 99 Mo. 361. (4) Wayland was elected to the office of collector of the revenue for a term of four years, beginning the first Monday in March, 1907; and until that term begins he is not entitled to the office. State ex rel. v. McGovney, 92 Mo. 428. (5') If it be said that Wayland was elected only for the unexpired portion of the term ending the first Monday in March, 1907, we answer that no such election is provided for by law. An election not provided for by law is equal to no election. State ex rel. v. Jenkins, 43 Mo. 261; State ex rel. v. Dabbs, 182 Mo. 359. (6) If it be said that he was elected for the regular term, ending four years from the first Monday in March, 1907, with the right to assume the office prior to that date, we answer that liis term would be longer than tbe constitutional limit of four years. Sec. 14, art. 9, Constitution. (7) Tbe uniform legislative construction of section 11, article 5 of tbe Constitution has been in accord with tbe views here expressed. Secs. 503, 511, 1652, 1387, 7596, 7835, 9572, 10379, 10470, R. S. 1899; Railroad v. Brick Co., 85 Mo. 307; State ex rel. v. Stonestreet, 99 Mo. 361. (8) If a doubt exists as to whether or not section 7028 is constitutional, that doubt should be resolved in favor of its validity. State ex rel. v. County Court, 51 Mo. 82; State ex rel. v. Aloe, 152 Mo. 466; State v. Cantwell, 179 Mo. 245; State v. Tower, 185 Mo. 79; Riesterer v. Land & Lumber Co., 160 Mo. 141; State ex rel. v. Mead, 71 Mo. 266.
   GANTT, J.

This is a proceeding instituted in the circuit court of Chariton county by the Attorney-General of Missouri, at the relation of Cecil Wayland, against Edward IValter Herring, to determine the respective rights and claims of said Wayland and Herring to the office of collector of revenue of said county.

Herring’s claim to the office is by appointment made by the Governor on the 6th day of April, 1906, to fill a vacancy. Wayland was elected to the office at the general election on the 6th day of November, 1906, and thereafter qualified, and on the 11th day of December, 1906, demanded the office of Herring who refused to turn it over.

The pleadings consist of the information of the Attorney-General in the nature of a writ of quo warranto, setting out Herring’s appointment by the Governor to fill the vacancy on April 6, 1906, his qualification for and incumbency of the office, the election of Wayland at the general election on November 6, 1906, his qualification and demand for the office on December 11,1906, and Herring’s refusal to turn it over, together with a charge that Herring had intruded into, usurped and unlawfully exercised the functions of the office, and a prayer that he he ousted therefrom; and a demurrer thereto filed by the respondent.

The trial court sustained the demurrer; and, the relator declining to plead further, rendered judgment for the respondent; and from this judgment relator has appealed to this court.

The question at issue is: Who is entitled to the office from the time of Wayland’s qualification until the first Monday in March, 1907 ? ' Respondent claims that he is entitled to hold by virtue of the appointment of the Governor until the first Monday in March, 1907, basing his claim upon a number of constitutional provisions. The collector’s office is of statutory, not constitutional, origin. No such office is mentioned in the Constitution. It was created by the Legislature by authority of section 14 of article 91 of the Constitution, which is as follows: “Sec. 14. Extra officers, Duties and Terms. — Except as otherwise directed by this Constitution, the General Assembly shall provide for the election or appointment of such other county, township and municipal officers as public convenience may 'require; and their terms of office and duties shall be (prescribed by law; but no term of office shall exceed four years.”

Deriving its authority from this provision of the Constitution, the Legislature has created the office of ■collector of revenue, provided what the term of office shall be and how the officer shall be chosen. By the amendment by the session of 1905, the term is four years. [Laws 1905, p. 272.] This section ás amended reads as follows: “Section 9203. The Collector and his term of office. — The offices of sheriff and collector shall be distinct and separate offices in all the counties of this State, and at the general election in 1906, and every four years thereafter, a collector, to be styled the collector of the revenue, shall be elected in all the counties of this State, who shall hold their office for four years and until their successors are- duly elected and qualified : Provided, that nothing herein contained shall be so construed as to prevent the same person from holding both offices of sheriff and collector.”

Also deriving its authority from the above provision of the Constitution, the Legislature has provided that the collector’s office shall expire on the first Monday in March of the year in which he is required to make his final settlement for the tax book which was to he collected by him. [Sec. 9267, R. S. 1899.] This would necessarily mean the first Monday in March succeeding the election for the office of collector. If a collector were elected at the general election in November, 1906, as the above statute provides for, the last tax book to be collected by the old collector would be the tax book for the year 1906, and he would be required to make his last final settlement at a term of the county court to be held on the first Monday in March, 1907. [Sec. 9247, R. S. 1899'.] Also deriving its authority from the above provision of the Constitution, the Legislature has provided that when a vacancy occurs in the office of collector it shall be filled by the appointment by the Governor, and that the person appointed shall hold the office until the beginning of the succeeding term. [Sec. 7028, R. S. 1899.] This section is as follows: “Section 7028. Vacancies, How Filled.— Whenever any vacancy, caused in any manner or by any means whatsoever, shall occur or exist in any state or county office originally filled by election by the people, other than the office of lieutenant-governor, state senator, representative, sheriff or coroner, such vacancy shall be filled by appointment by the Governor; and the person so appointed shall, after having duly qualified and entered upon the discharge of his duties under such appointment, continue in such office until the first Monday in January nest following the first ensuing general election — at which general election a person shall be elected to fill the unexpired portion of such term, or for the ensuing regular term, as the case may be, and shall enter upon the discharge of the duties of such office the first Monday in January next following said election: Provided, however, that when the term to be filled begins or shall begin on any day other than the first Monday in January, the appointee of the Governor shall be entitled to hold such office until such other date. ’ ’

Relator claims that these enactments of the Legislature are in conflict with section 11, article 5 of the Constitution, which is as follows: “Sec. 11. Vacancy in Office — Governor May Fill, — When any office shall become vacant, the Governor, unless otherwise provided by law, shall appoint a person to fill such vacancy, who shall continue in office until a successor shall have been duly elected or appointed and qualified according to law,” and that sections 7028 and 9267 were not enacted as required by the Constitution. He claims that just as soon as he was elected and qualified for the office respondent’s term was ended, and he was entitled to assume the office.

I. There is no dispute that there was a vacancy in the office at the time the Governor appointed Herring thereto. The demurrer admits that Wayland, the relator, was elected at the November election in 1906; that he possessed all the qualifications required by the statutes and the Constitution to be possessed by a collector of the revenue of the county, and that in due time he qualified in the manner required by law. Addressing ourselves to the contention of the relator that section 7028, Revised Statutes 1899, is unconstitutional and in conflict with section 11 of article 5 of the Constitution, we find that the first ground of this contention is that the subject of the bill of which section 7028 constitutes a part, is not clearly expressed in its title. The title to that bill is, ££ An Act to amend and revise chapter 2, title 2 of the general statutes of Missouri concerning popular elections.” This identical objection to this section was made in Mead’s case, 71 Mo. 266. At that time it was numbered 5527, R. S. 1879. In that case it was said that the section was in entire harmony with the title, because there was an obvious connection and congruity between the idea expressed in the title, “Concerning popular elections,” and that of providing for filling, by gubernatorial' appointment, vacancies temporarily occurring in offices filled in the first instance by an election and to be so filled again when the temporary exigency ceased to exist. That case has so often met the unqualified approval of this court on the subject of sufficiency of titles to legislative enactments within the meaning of section 28 of article 4 of the Constitution of this State, that we forbear further discussion. We think the objection is untenable.

It is also urged that said section is unconstitutional because it was first enacted as a part of a revised bill. This insistence seems to be predicated upon section 4.1 of article 4 of the Constitution, which says: ‘£ All the statute laws of a general nature shall be revised, digested and promulgated,” every ten years, and that therefore the Legislature could not make so radical a change of the law in a revised bill as was made by section 7028. When it is considered that a revised bill is passed with all the formality required for the enactment of any other law, is required to be read just as many times, authenticated in the same way and receive the Governor’s approval in the same manner as any other bill, we are not impressed with the strength of this objection. Having reached the conclusion that the title to this bill was entirely sufficient under section 28 of article 4 to support section 7028, the fact that it was passed in a revised bill covering the whole subject of popular elections and the filling of vacancies, in our opinion in no manner impairs its validity as a constitutional law.

Again it is urged that both section 7028 and 9267 are unconstitutional, because each of said sections was enacted as an amendment to the previous law on that subject, in that, the act in which said amendments appear for the first time, did not comply with the constitutional provision found in section 34 of article 4, by setting forth the words stricken out of the old statute, or the words inserted in lieu thereof in the new, but in each instance the statute as amended was set forth in full. Section 34 of article 4 provides: “No act shall be amended by providing that designated words thereof be stricken out, or that designated words be inserted, or that designated words be stricken out and others inserted in lieu thereof; but the words to be stricken out, or the words to be inserted, or the words to be stricken out and those inserted in lieu thereof together with the act or section amended, shall be set forth in full as amended.” This section of the Constitution has been before this court for consideration on a number of occasions, and the objection now made to these sections has often been made. In State v. Chambers, 70 Mo. l. c. 628, it was said: “The object of the prohibition from making amendments in such a way was to prevent the laws from becoming involved in the confusion which would necessarily result from such legislation; and to prevent the inconvenience it would occasion of hunting through various books to find the act amended and then apply to it the amendatory act to ascertain what the law as amended was. To prevent this it requires the entire act, when the amendment relates to the entire act, to be set forth in full, or when the amendment relates only to cex’tain sections of an act to be amended, that only the sections as amended should be fully set out.” That ruling was followed in Morrison v. Railroad, 96 Mo. 602, where it was held: “Section 34 of article 4 of the Constitution of 1875 does not require that an amendatory act should state that certain words of a specific section are stricken out and others inserted, and then set out in full the section as amended. It is sufficient if the section as amended be set out in full.” In Cox v. Railroad, 174 Mo. l. c. 601, this same question was again before this court and the construction given in the foregoing cases was adhered to and declared to be the settled law of this State. Accordingly, this point also must be ruled against the relator.

We are thus brought to> the main proposition urged by the learned counsel for the relator, namely, that section 7028 is invalid for the reason that it is in conflict with section 11 of article 5 of the Constitution, which ordains, “When any office shall become vacant, the Governor, unless otherwise provided by law, shall appoint a person to fill such vacancy, who shall continue in office until a successor shall have been duly elected or appointed and qualified according to law.” Relator’s contention is that the respondent Herring, the Governor’s appointee, under section 11 of article 5, could hold the office of collector of Chariton county until relator Way land was elected at the general election in 1906, and qualified according to law, and no longer, and that the Legislature had no power by section 7028, Revised Statutes 1899, or any other statute, to extend the tenure of respondent to said office beyond the time of the election and qualification of his successor, because to do so would be an enlargement of the constitutional limitation. The respondent does not controvert the proposition that a statute can neither lengthen nor shorten the tenure of an office when it is fixed by the Constitution, but he says that sections 7028 and 9267 are perfectly constitutional enactments and by virtue of 7028 respondent was entitled to bold the office under his appointment until the first Monday in March, 1907, and that section 7028 does not contravene the constitutional provision in section 11, article 5, when properly construed.

The framers of our Constitution when they drew section 11, article 5 thereof, were considering vacancies in public offices; they foresaw that for various reasons such vacancies were inevitable, and in order to prevent and provide for these vacancies as far as possible in order that the public good should not suffer thereby, they framed this section, and gave to the Governor the power to fill these vacancies when they wex^e not otherwise provided for by law. "When this vacancy occurred in the office of collector of the revenue in Chariton county, the condition existed which authorized the Governor to fill it by appointment. Whether we look to section 11 of article 5 of the Constitution or to section 7028, Eevised Statutes 1899; for authority to fill the vacancy, we find that it is vested in the Governor. The obvious purpose in conferring this authority upon the Governor was to prevent any interregnum in the office, and to have soxne person always authorized to discharge its duties. The language of the Constitution is: “He shall appoint a person to fill such vacancy.” Giving these words their natural significance, and it has often been held that the word, “vacancy” has no technical meaning', but must be understood with reference to the context in which it is found, they import that the appointee 'of the Governor would be entitled to hold the office until the end of the term in which the vacancy occurs. And when the additional words of the section, to-wit: “Shall continue in office until a successor shall have been duly elected or appointed and qualified according to law,” are considered, we think the obvious purpose was to extend the appointee ?s tenure after the end of the term in which the vacancy occurred until everything has been done which is required by law to give title to the office to another person. The office of collector of the revenue is a statutory office, an office which the Legislature under the express language of section 14 of article 9 of the Constitution was authorized to create and to prescribe the term of the incumbent thereof, which should not exceed four years, and how the officer should be chosen. As said by Judge Scott, in State ex rel. v. Lusk, 18 Mo. 333, the General Assembly “may take the appointing power from the Governor, and the power of filling vacancies in such cases may be conferred on others than the executive. In the exercise of the power to create offices, they may declare when they are vacant and who shall fill the vacancies.” As the Constitution does not forbid, but expressly authorizes the Legislature to create the office of collector of revenue, it may prescribe how it shall be filled. By section 9203 as amended by the Act of 1905', the Legislature provided for the election of a collector of the revenue in all .the counties of the State at the general election in 1906, and every four years thereafter, and by section 7028 it provided for the filling of a vacancy in said office by appointment by the Governor and provided further that “the person so appointed shall, after having duly qualified and entered' upon the discharge of his duties under such appointment, continue in such office until the first Monday in January next following the first ensuing general election — at which said general election a person shall be elected to fill the unexpired portion of such term, or for the ensuing regular term, as the case may be, and shall enter upon the discharge of the duties of such office the first Monday in January next following said election: Provided, however, that when the term to be filled begins or shall begin on any day other than the first Monday in January, the appointee of the Governor shall he entitled to hold such office until such other date. ” ■ Now, it is alleged in the petition, that on Tuesday the 6th day of November, in the year 1906, the relator, Wayland, was elected to the office of collector of the revenue of Chariton county, received a certificate of his election thereto, in proper and due time executed and filed his bond in the amount fixed by the statute, which was approved by the county court of Chariton county and by the State Auditor, and took the oath prescribed by law to be taken by collectors of the revenue, and on the 19th day of November, 1906, a commission was issued to him by the Governor,by which he was commissioned collector of the revenue of said county. Now, by virtue of the amendment of 1905 to section 9203, the- term of his office was four years, and by section 9267, the collector’s office expires on the first Monday in March of the year in which he is required to make his last final settlement for the tax book, which was to be collected by him, necessarily meaning the first Monday in March succeeding the election for the office of collector, consequently under these various legislative enactments, relator’s term of office would begin on the first Monday in March, 1907, and the respondent’s right to hold the office by his appointment from the Governor would -cease on that day. But it is said by relator that respondent has no right to assume that relator was elected for the term beginning on the first Monday in March, 1907, and for no other term. It is plain that he was elected either for the full term or the unexpired- term; he could not have been elected to two terms. As we have already seen, the regular term had a day certain of beginning and a day certain for ending. It began on the first Monday in March, 1907, and ended four years later. It is not alleged in the information that -relator was elected for an unexpired term, and section 9203 makes no provision for the election of a collector for an unexpired term. The only authority for electing a collector for an unexpired term is found in section 7028, hut by the express provision of that section it would make no difference whether relator was elected for an unexpired term or for a regular term, as in either event, his term has a definite and certain date of beginning, to-wit, the first Monday in March, 1907, and until that date arrived, he was not entitled to assume the duties of the office. But we take it any way that a fair construction of the relator’s petition means that he was elected for the regular term at the general election in 1906, and not for any unexpired term. Certain it is that the statute did not provide for the election of two officers for the same office, one for the unexpired and one for the ensuing regular term, and we can hardly think that relator desires us to hold that he was elected for a term ending March the first, 1907. Moreover, if relator’s contention is correct, that he was entitled to this office as soon as he was elected, and that it continued for four years from the first Monday in March, 1907, his term would be longer than four years, which is expressly prohibited by section 14 of article 9 of the Constitution.

As the Legislature was given the power by section 14 of article 9 to create this office and prescribe the length of the term thereof and the duties of the incumbent, as said by Judge Scott, they had the power to deprive the Governor of the appointing power and could have conferred the power of filling vacancies on others than the executive. In the exercise of the power to create the office they could declare when it was vacant and who should fill the vacancy, and by the provisions which we have cited they have created the office of collector of the revenue, and prescribed the term and the duties thereof, and have provided for the filling of vacancies, all within the constitutional power of the General Assembly, and this being so, they have provided by law for all the contingencies that have arisen in this case within the meaning of section 11 of article 5, and when the Governor made his appointment of the respondent in this case he was acting under and by virtue of the provisions of section 7028, and that section did not impinge upon Ms constitutional authority. There has been a uniform legislative construction of section 11 of article 5 of the Constitution since its adoption. That construction has been that the Legislature could not only provide who should make appointments to fill vacancies in office, but might also prescribe the term of the persons so appointed to fill vacancies whether made by the Governor or some other officer or body. "While courts are not bound to follow legislative construction, yet when such construction has been contemporaneous and long continued, it is entitled to great weight. [Railroad v. Brick Co., 85 Mo. l. c. 332; State ex rel. v. Stonestreet, 9h Mo. 361; 6 Am. and Eng. Ency Law, 931.]

In State ex rel. v. McGovney, 92 Mo. 428, there was a contest between Prewitt and McGovney over the office of treasurer of Vernon county. McGovney was elected at the November election, 1884, and Prewitt in 1886. At the same election at which Prewitt was elected the county adopted the townsMp organization law. During McGovney’s term (Laws 1885-, p. 108), the statute fixing the treasurer’s office at two years was amended by adding the proviso: ‘ ‘ That in counties having adopted, or which may hereafter adopt, township organization, the term of office of said treasurer shall be extended to the first day of April next after the election of his successor.” The question was whether McGovney had a right to hold over until the first Tuesday in April, 1887, it being contended by Prewitt that this amendment was in conflict with section 8, article 14, of the Constitution, which provides that the term of no office shall he extended for a longer period than that for which such officer1 was elected or appointed. It was held that the statute was not in conflict with the Constitution and that Prewitt was not entitled to the office until the first Tuesday in April. On the question of when Prewitt would he entitled to the office the court said: “Mr. Prewitt’s term does not begin until April, and hy express provision of the Constitution and the statute, McGovney holds until that time.” The provision of the Constitution here referred to is section 5 of article 14 of the Constitution which reads: “In the absence of any 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 successor shall he duly elected and qualified.” The statutory provision in section 8847, Revised Statutes 1899, is to the same effect. The reasoning in that case would seem to control in this.

Learned counsel for the relator have with great industry collected cases from the courts of last resort in a number of the States in the Union, but the length of this opinion forbids that we shall review them seriatim. The brief indicates great research and discrimination in the selection of these cases, and we have read them with much interest, hut a critical examination of the statutes themselves and of the constitutions under.which they were drawn will, we think, demonstrate that there is a difference in the language of the constitutional provision upon which the cases are decided. In a number of them the law provides for the election of a successor for the unexpired term, or the office is one the beginning of the term of which is not definitely fixed by law, and one which the officer elected or appointed to is .entitled to assume immediately upon his election or appointment and qualification. But we find no case which holds that where an officer, as the relator in this case, has been elected to a term of office which had a definite and certain date of commencement, he should be adjudged to be entitled to that office before that date. And we find no case which under a constitutional provision like our section 14 of article 9 conferring express power upon the Legislature to create statutory offices has denied the Legislature the right to provide for the filling of the vacancies in such offices as has been done in this State by section 7028, Revised Statutes 1899.

Our conclusion is that section 7028 does not contravene the Constitution of this State, but finds ample support in section 14 of article 91 thereof, and that it in no manner conflicts with section 11 of article 5, which provides only for the filling of vacancies when no other provision is made by law.

The judgment of the circuit court is affirmed.

Fox, P. J., and Burgess, J., concur.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    LANYON et al. v. CHESNEY et al., Appellants.
    Division Two,
    December 24, 1907.
    1. DISMISSAL IN VACATION: Set-off. The dismissal by plaintiff of his suit .in vacation does not affect the defendant’s right to prosecute any set-off or counterclaim he pleaded in his answer before the suit was dismissed.
    2. -: -: What Is. But matter which is merely pleaded as a .defense, or which shows that plaintiff never had a cause of action, cannot be said to be either a set-off or counterclaim. So that defendant’s answer in plaintiff’s suit for specific performance of a contract for the sale of plaintiff’s land, which does not deny the execution of the contract, but attempts to vary and put a different construction on the contract, does not plead a set-off or' counterclaim; and that being the case plaintiff has the right to an absolute and unconditional dismissal of his suit or to take a nonsuit at any time before final submission, and defendant cannot, by motion to reinstate after such dismissal, keep the case in court in order that he may set up, by amended answer or cross-bill, a set-off or counterclaim.

      3. —i-: Restoration to Property: Execution Under Void Judgment. Defendant has a right to have restored to him any property of which he was deprived and which plaintiff acquired under a judgment for plaintiff which was reversed on appeal, whether by execution or otherwise, and such right is in no way affected by plaintiff’s dismissal of his suit after obtaining possession of such property; and that is the rule without regard to the merits of the original cause of action or grounds of defense.
    4. -: -: What Execution Should Contain: Damages. Where the trial court found that the plaintiff entered into possession under and by reason of a vacated judgment in his favor, and awarded execution for restitution of the premises to defendant and directed that “there be inserted in said writ a general execution clause for the levy of the costs and damages, amounting to $500, hereby adjudged against the property and effects of plaintiff,” the Supreme Court, where the trial court’s findings indicate fairness and impartiality, will not place defendant in immediate possession, and adjudge plaintiff to pay defendant the full and fair rental value of the premises and proceed to ascertain the same. The amount of damages is a matter peculiarly within the province of the trial court.
    Appeal from Greene Circuit Court. — Hon. Jas. T. Ne-ville, Judge.
    Aeeirmed.

      George Hubbert with E. E. Chesney for appellants.
    (1) The facts in defendants’ answer afforded cause for relief either by rescission or damages or in diminution of the price to he paid by defendants for the premises. Liese v. Meyer, 143 Mo. 555; McGrew v. Railroad, 87 Mo. App. 250; Haeusler v. Holman Co., 49 Mo. App. 636; Bevin v. Powell, 11 Mo. App. 216, 83 Mo. 365. (2) Aside from our statute of set-offs and counter-claims, appellants are entitled to protection from the consequences of such a vacation dismissal as the one in question here. Browning v. Chrisman, 30 Mo. 353; Wilder v. Boynton, 63 How. Pr. (N. Y.) 587; McKesson v. Hunt, 64 N. C. 502; Sawyers v. Langford, 6 Bush (68 Ky.) 539. (3) The restitution adjudged by this court should be made effective and adequate, before the original cause proceeds upon its merits or is otherwise disposed of. Reynolds v. Harris, 14 Cal. 668; Ming v. Sugget, 34 Mo. 364; Fleming v. Riddick (Va.), 50 Am. Dec. 119; McCracken v. Paul, 55 Ark. 553; Ex parte Walter (Ala.), 18 Am. St. 103; Haebler v. Myers (123 N. Y.), 28 Am. St. 589; Northwestern Co. v. Brock, 139 U. S. 216; Keck v. Al-lender, 4 W. Va. 420; First Natl. Bk. v. Elliott, 60 Kan. 172; First Natl. Bk. v. Price, 65 Kan. 853; Denning v. Yount, 66 Kan. 766; Norton v. State, 63 Neb. 34; McFadden v. Swinnerton (Ore.), 62 Pac. 12; Claflin v. Pfeifer, 84 Tex. 23. (4) Respondent Mink cannot be heard to say on this appeal that he did not acquire possession of the premises in question by reason of the erroneous and vacated decree, nor to dispute appellant’s right to restitution from him as having been erroneously aided by the State’s court in doing them a substantial wrong. The finding of the learned judge below, that respondent Mink’s possession was by reason of the reversed and vacated decree, is abundantly sustained by the evidence. (5) The measure of compensation is the fair and reasonable value of the premises including the water-power thereon and available for application to operation of machinery and generation of electrical force for which the same was designed and adapted; and that without regard to what use was actually made of the premises by Mink; for the true measure to defendants is not what plaintiff profited but what defendant lost by the erroneous decree, with interest. Schoonover v. Osborne, 90 N. W. 844; Atkinson v. Dixon, 96 Mo. 586; Cutter v. Waddington, 33 Mo. 286; Phillips v. Stewart, 87 Mo. App. 493; Sedg. & Wait, Tr. Title to Land, sec. 665; Campbell v. Brown, 2 Wood (U. S.), 349; 10 Am. and Eng. Ency. Law, 542; Credle v. Ayres (N. C.), 35 S. E. 128; Averett v. Brady, 20 Ga. 527.

      J. D. Harris, E. O. Brown and R. A. Mooneyham for respondents.
    (1) Plaintiffs had the unquestioned right to dismiss the suit. Pullis v. Pullis, 157 Mo. 588; Houston’s A'dmr. v. Thompson, 87 Mo. App. 63. (2) A mere inquiry of damages with restitution according to the mandate of the Supreme Court, is not a trial within the meaning of the statute, and the dismissal in vacation did not take this question out of court nor sweep away defendants’ right to' restitution and damages. The rights of defendants to restitution and rents and profits are established by the judgment of reversal, and the inquiry is directed solely to the amount of such damages. The theory of defendants, therefore, that the vacation dismissal was effective to carry not only the parties but the question of restitution out of court, is clearly untenable. A trial, under our statute, is defined to be “the judicial examination of the issues between the parties, whether they be issues of law or of fact.” Issues are made under the statute, as well as at common law, by the pleadings. In awarding restitution and damages on reversal, in pursuance of the mandate of this court, there can be no issues to be tried, and no trial can be had in reference to those matters within the meaning of the term as used in the Code, and understood by the profession. Crossland v. Admire, 118 Mo. 91; Ming v. Suggett, 34 Mo. 364; Atkinson v. Dixon, 96 Mo. 582; 18 Ency. Pl. & Pr., 871. (3) It is further urged that the damages allowed defendants by the court below for rents and profits of the property are grossly inadequate. A careful reading of all the evidence will show conclusively that defendants were treated very fairly in that respect. It is immaterial whether defendants could or would have realized any greater profit had the mill been properly equipped with electrical machinery and they remained in possession of the property with authority to raise the altitude of the dam so as to afford sufficient power to run the various mining plants in that locality.
   BURGESS, J.

This case was before this court upon a former appeal by defendants, and will be found reported in 186 Mo. 540, where a full and fair statement of all the facts of the case upon, to and including the first trial, is given by Judge Fox who wrote the opinion in the case. The judgment was then reversed and the cause remanded.

The cause was then pending in the circuit court of Jasper county, but after the filing of the mandate of the Supreme Court in the circuit court of that county the venue of the cause, on the application of defendants, was changed to Greene county. After the transcript of the record of the cause was filed in the office of the clerk of the circuit court of Greene county, plaintiffs, in vacation, May 5, 1905, upon the payment of all costs which had accrued in the cause, with the consent of the clerk of said court, dismissed the cause, and the clerk made a minute on the record to that effect.

On May 17, 1905', during the May term, 1905, of the Greene County Circuit Court, defendants filed their motion to set aside said order of dismissal, to reinstate the cause, and for restitution of the premises, and damages for the taking and detention thereof, and asking that plaintiffs be enjoined from enforcing their claims against said premises until such restitution should be made. Upon the presentation of this motion, the court appointed a commissioner to take depositions therein, which depositions- were returned to and filed in the Greene Circuit Court on January 8, 1906. While said motion was pending, on June 23, 1906’, defendants tendered and offered to file their “joint and amended answer and cross-bill.”

Plaintiffs resisted the said motion upon the ground that the cause had been disposed of by vacation dismissal, and that the court had no jurisdiction in the premises as to any feature of the motion. After amendment of the motion by the addition of a supplemental claim for direct injuries to the mill by Mink, pending the motion, a final hearing was had on March 11, 1907, the court awarding restitution of the possession of the property in question by plaintiff Mink to defendants, with damages in the sum of $500 and costs incident to the motion, on account of the fact that Mink had taken and held possession of the premises in question by virtue of the erroneous and vacated decree. The motion, as to all other matters mentioned therein, was overruled by the court, and the judgment for possession was combined with an order that the writ of possession must contain an execution clause for $500 damages, so that defendants could not sue out execution of the writ of possession without thereby waiving appeal from the adverse parts of the judgment, to all which defendants excepted. Mink continues in possession of the Quaker Mills premises and property.

From the judgment of the court defendants appeal.

Counsel for the defendants present a number of propositions of law respecting errors alleged to have been committed by the trial court prejudicial to defendants. The first is that the vacation dismissal of the suit by plaintiffs on May 5, 1905, did not finally dispose of the case or the subject of the action, nor cut off defendants’ rights or remedies in relation thereto.

Under the provisions of section 639, Revised Statutes 1899, a plaintiff has the right to dismiss his suit or take a nonsuit at any time before final submission to the jury, or to the court sitting as a jury, or to the court; and, by section 797, the right is conferred upon the plaintiff in any suit in any court of record to dismiss such suit in the vacation of the court, upon the payment of all costs that may have accrued. By section 4499 it is provided that such dismissal shall not operate to dismiss set-off, and “the dismissal or any other discontinuance of the plaintiff’s action, in which such set-off or counterclaim shall have been filed, shall not operate to dismiss or discontinue such set-off or counterclaim. ’ ’

Prior to the revision of 1889, when section 8172, now section 4499, Revised Statutes 1899, was added, it was several times, in effect, ruled by the Supreme Court that when the defendant answered and pleaded a set-off or counterclaim, he could not, if plaintiff failed to appear at the trial, or take a nonsuit, take a verdict and judgment against him for the amount of his set-off and counterclaim. [Nordmanser v. Hitchcock, 40 Mo. 178; Pink v. Bruihl, 47 Mo. 173; Martin v. McLean, 49 Mo. 361.] But in order to remedy this seeming injustice to defendants who had and pleaded set-offs and counterclaims in their answers to actions ag'ainst them, said section 4499 was added, and since that time the dismissal or nonsuit of plaintiffs no longer carries with it the set-off or counterclaim of a defendant, but such is proceeded with as an independent suit instituted by the defendant. The consequence is' that the cases above referred to are no longer the law in cases where the defendant files a set-off or counterclaim. [Pullis v. Pullis, 157 Mo. 565.] This same question was before the St. Louis Court of Appeals in the case of Atkinson v. Carter, 101 Mo. App. 477. The court said:

“The general rule in respect to a plaintiff’s right to dismiss before final submission is, that where the answer sets up new matter demanding affirmative relief for which the defendant might maintain a separate action against the plaintiff, the defendant, as to such new matter, is deemed a plaintiff and cannot thereafter be deprived of his right to a trial of his cause by a voluntary dismissal or nonsuit by the plaintiff. ’[6 Ency. PI. and Pr., 848, and cases cited in the notes.] But this rule has never obtained in this State. On the contrary, the Supreme Court, except in special proceedings, has construed the right of a plaintiff to dismiss or take a nonsuit under section 632, supra, before final submission, to be absolute and unconditional. With this construction before it, the Legislature in 1889 enacted section 8172, supra. This section does not‘interfere with or in the least abridge a plaintiff’s right to dismiss a suit or take a nonsuit before final submission; but it secures to a defendant who has filed a counterclaim a new right; that is, it retains the counterclaim or set-off in court after the dismissal of plaintiff’s cause of action and authorizes a trial and judgment thereon. It does not modify or qualify section 632, supra, in the least, and it is apparent that the Legislature did not intend by section 8172, supra, to abridge plaintiff’s right to dismiss a suit or take a nonsuit as that right had been theretofore defined by the Supreme Court, and, we think, the rule prevails in this State that in all ordinary actions at law or in equity the plaintiff has the right before final submission to dismiss his suit or take a nonsuit, irrespective of the fact that matters are pleaded in the answer which would entitle the defendant to affirmative relief and for which he might maintain a separate action against the plaintiff.”

The dismissal of the suit did not affect defendants’ right to prosecute any set-off or counterclaim they might have pleaded in their answer before the dismissal of the suit. A critical examination of the answer, however, satisfies us that no set-off or counterclaim is pleaded therein. It does not deny the execution of the contract, but avers that the contract is not as set out in the petition, but a different contract, or, more strictly speaking, the averments of the answer merely attempted to vary the terms of or put a different construction on the contract which the suit was instituted to specifically enforce. Matter which is merely pleaded as a defense, or which shows that plaintiff never had a cause of action, cannot be said to be either a set-off or counterclaim. [Jones v. Moore, 42 Mo. 413.] With relation to the nature of the defense sought to be set up by this answer, Judge Pox, on the former appeal, said: “We express no opinion upon the allegations of the answer as to the false and fraudulent representations, for the reason that the defendant has indicated no purpose in making them. It was not for the purpose of reducing the amount of the purchase-money by damages sustained, for no amount of damages is claimed, and no such relief is sought. It cannot be for the purpose of dis-affirming or rescinding the contract, for to do that the possession of the premises must be restored or an offer made to do so.” It follows that the court did not err in refusing to set aside the dismissal and reinstate the cause, nor in refusing to permit defendants to file their joint and amended answer after the suit had been dismissed, for there was no petition pending to answer.

We entertain no doubt as to the right of defendants to have restored to them, as against the other parties to this action, any property or property rights of which they were deprived and which plaintiffs acquired under the first judgment, whether by execution or otherwise, and that such right will not in any way be affected by plaintiffs’ dismissal of their suit after obtaining possession of such property. [Gott v. Powell, 41 Mo. 416; Vogler v. Montgomery, 54 Mo. 577; Jones v. Hart, 60 Mo. 362; Colburn v. Yantis, 176 Mo. 670; Carson’s Admr. v. Suggett’s Admr., 34 Mo. 364.] And this, too, without regard to the merits of the original cause of action or grounds of defense.

Plaintiffs contend, however, that Mink did not obtain possession of the property by virtue of the reversed judgment, but under the deed from Lanyon to Mink dated July 26, 1901, and that, therefore, the defendants are not entitled to restitution. But both the evidence and the finding of the court are to the contrary. The court in its findings expressly says “that plaintiff Mink did enter upon and into the premises in question and possess and hold the same by reason of the reversed and vacated decree of the circuit court herein, as entered in Jasper county, and that he has continued to occupy and possess the same as yet he does by reason thereof, and that the reasonable and just rental value of the said premises during such possession which was lost to defendants by reason of said vacated decree is to the present date five hundred dollars.” Besides, under the facts disclosed by this record, Mink is in no position to say that he did not acquire possession of the premises in question through and under the erroneous and vacated judgment.

The vital question in the case at bar is as to- what matters should have been included in the order and judgment of restitution from which this appeal is prosecuted. Notwithstanding the court ordered restitution of the land in question to defendants and allowed them damages in the sum of five hundred dollars for the loss of said premises during the possession and occupancy thereof by plaintiff Mink, under said decree and deed, as well as costs incurred in the matter of the motion and assessment of rent values and damages, and ordered that “in execution of the foregoing judgment, there he issued out of this court and by its clerk a writ of restitution addressed to tbe sheriff of Jasper county, in due form, and commanding tbe said plaintiff Mink to yield and that tbe defendants be given possession of tbe said premises peaceably and fully and without delay, and that there be inserted in said writ a general execution clause for tbe levy of tbe ^damages and tbe costs hereby adjudged against tbe property and effects of tbe said plaintiff Mink,” tbe defendants insist that this court should place them in immediate possession of tbe property in question and specifically adjudge tbe plaintiff Mink to pay to defendants the full and fair rental value of tbe premises, and ask that this court proceed to ascertain tbe same. Tbe court below did not refuse to restore to defendants tbe possession of all tbe property of which they bad been deprived through tbe vacated decree, but defendants claim that tbe court did not adjudge and order that plaintiff Mink pay to defendants tbe full and fair rental value of tbe premises. This was, it seems to us, a matter peculiarly within tbe province of the trial court, who saw the witnesses on tbe stand and beard them testify. That court was in a much better position to pass upon tbe weight of tbe testimony relative to tbe rental value than we are, and there is nothing in tbe court’s finding that does not indicate tbe utmost fairness and impartiality, We. must, therefore, decline to interfere with the finding and judgment.

Tbe judgment is affirmed.

All concur.