Volume 138 — Missouri Reports

Error from the Wright Circuit Court. — Hon. W. I. Wallace, Judge. (1) The petition does.not state a cause of action in that it does not allege that defendants are the heirs of R. M. Crewse or that R. M. Crewse is dead, and no testimony was admissible, and the fact that plaintiffs took leave of the court to amend their petition would not make any testimony admissible.

<p>Error from Wright, Circuit Court. — Hon. W. I. Wallace, Judge.</p>

— Hon. James T. Neville, Judge. The civil courts have jurisdiction over property rights of churches. Watson v. Garvin, 54 Mo. 377; Prickett v. Wells, 117 Mo. 502.

— Hon. H. C. Riley, Judge. (1) The issue being on the equitable answer of the defendant the burden was on the defendant to establish the allegations of his answer, and the case is governed by the rules of equity. Allen v. Logan, 96 Mo. 591. (2) The contract or deed, in this case, is unambiguous in its terms, and as there is no reasonable ground for mistake as to the subject-matter of sale by the party complaining, the contract should not be disturbed.

— Hon. E. L. Soarritt, Judge. (1) The record shows that the principal note was not due, and only one interest note of $600 was past due. The record also shows that the sale was made October 20, 1893, during the money panic, and that money could not be had at any price. The record shows that Mr. Clarke paid $45,000. It cost Mrs. Hickman over $50,000, and at sale it was worth at least $35,000.

— Hon. W. M. Robinson,' Judge. (1) Where a person is so situated as to exercise a controlling influence over the will and conduct of another, the clearest evidence is required that there-was no fraud, influence or mistake. Harvey v. Cullens, 46 Mo. 152; Caclwalladerv.West, 48 Mo. 483; Armstrong v. Logan, 115 Mo. 465.

— Hon. J. H. Slovek, Judge. (1) Plaintiff showed such right to the possession of the land in controversy as ,is required by law, to make a prima facie ease. Ten years consecutive adverse possession, under claim of title, creates in the possessor an affirmative title, under which he may maintain ejectment. And such possession will raise a presumption that the title has emanated from the government, and vested in the holder.

— Hon. W. M. Robinson, Judge. (1) The statute granting the right of appeal from-' the judgment of the police judge does not give the right, of trial de novo.

Transferred from the Kansas City Court of Appeals. The essential facts necessary to an understanding of the opinion are to he found in the report of this case in the Kansas City Court of Appeals, 71 Mo. App. 251. (1) The trial court erred in excluding the lien from the jury and in instructing to find against the plaintiff as to W. M. Allison.

— Hon. A. M. Woodson, Judge. (1) When the assets of a corporation become impressed with the character of a trust fund for the benefit of its creditors, they should be administered for the equal benefit of all of its creditors, and a simple contract creditor of such corporation may maintain an action in equity, with respect to the administration of such assets. Such assets can not be reached by attachment or other legal remedy.

Louis Court of Criminal Correction.— Hon. David .Murphy, Judge. (1) The “bookmaking and poolselling act” of March 12, 1895 (Laws of Mo. 1895, page 150), upon which the information herein is bottomed, grants special privileges and immunities in violation of section 15, article 2, and section 53, article 4, of the Constitution of Missouri.

<p>Appellate Practice: no bill of exceptions. Where no bill of exceptions is filed in a cause, there is nothing before the appellate court for review except what appears from the record proper; and where no error appears in this, the judgment will be affirmed</p>

— Hon. James. H. Lay, Judge. (1) Defendant’s instruction, in which the jury were told to disregard the testimony of the witness, Moon, was dlearly wrong, and, therefore, properly denied. The second refused instruction, telling the jury to entirely disregard the testimony introduced for the purpose of affecting- the general reputation of defendant, was also properly refused. Evidence of this character is properly admitted.

— Hon. D. P. Stratton, Judge. An indictment for burglary must allege ownership of the building alleged to have been broken into and entered. Commonwealth v. Perris, 108 Mass. 1; 2 Russell on Crimes [6 Ed.], p. 44; Whart. Crim. Law [9 Ed.], sec. 816. (1) This being purely a statutory offense, the charge of ownership in the indictment is unnecessary.

— Hon. W. N. Evans, Judge. (1) There is a very important and just distinction between an officer who collects and handles public money and one who collects and handles private money. A constable in collecting executions is under law collecting and handling private money. He may have many executions in favor of one plaintiff, and against as many defendants.

— Aon. William S. Heendon, Judge. The circuit court committed error in permitting the defendant’s wife to testify against him, for she was 'incompetent as a witness to prove any act or offense of defendant committed by him before the marriage under our statute as well as at common law. R. S. 1889, sec. 4218.

Louis Criminal Court. — Hon. Heney L. Edmunds, Judge. (1) To establish larceny, there must be evidence of a felonious intent existing at the time of the taking of the money; if there is no proof of such intent then no subsequently conceived felonious intent will render the accused guilty of larceny.

<p>Poolselling: bookmaking: unconstitutional statute. The act of the General Assembly entitled “An act to prohibit boolunaldng and poolselling at any place other than upon the premises of regular race courses,” approved March .12, 1895, again held unconstitutional and void, for the reasons given in State v. Walsh, 136 Mo. 400.</p>

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) The counsel fees which plaintiff was required to pay in order to obtain the injunction, and also the shame and humiliation which he suffered by reason of his suspension, are elements of the compensatory damages which he was entitled to recover.

— Hon. C. C. Bland, Judge. (1) This indictment is sufficient under the law off this State. State v. Taylor, 21 Mo. 477. (2) Section 3661, Revised Statutes 1889, provides accessories who aid and abet in the commission of a crime of felonious assault shall be guilty in equal degree with the principal. Under the decisions of this State there are no different degrees of felonious assault. R. 8. 1889, sees. 3489 and 3490; State v. Berning, 91 Mo. 82.

Lo%ás Criminal Court. — Hon. Thomas B.' Harvey, Judge. (1) Instruction number 4 given by the court is erroneous, in tbat it does not define what is “a reasonably sufficient length of time to cool.” (2) Instruction number 8 is erroneous, because the court instructs the jury that they “may” and not that they “shall” ' consider any threats made by deceased against appellant.

Appeal fro::i St. Louis Circuit Court. — Hon. W. W. Edwards, Judge. (1) The court erred in sustaining plaintiff’s motion for a new trial on the ground that instruction number 5 given by it at the request of defendant was. erroneous.

— Hon. Henry Riley, Judge. (1) Before a party can avail himself of a payment he must plead it. This was not done. (2;/ If ■the plaintiff owes anyone on account of these payments it is the estate of William Devore, and not the defendant, and such indebtedness can not be set up by a party in his individual capacity. (3) The defendant’s answer is a general denial, yet he seems to rely upon the statute of frauds.

Mandamus. (1) If a majority of the voters of the county voting for and against township organization vote for it, then township organization is adopted. R. S. 1889, sec. 8427; Rousey v. Wood, 63 Mo. Held: that it did not mean two thirds of those voting, but two thirds of all the legal voters in such township, and that any statute requiring a less number was inoperative and void.

<p>Appellate Practice: disbarment on attorneys: re-instatement. The court in bane on motion re-instate two members of the bar who had been removed from practice by the judgment in 129 Mo. 271.</p>

— Hon. Richard Field,-Judge. (1) The court erred in permitting plaintiff to prove a contract of testatrix with negro Hall to leave him a home. The Supreme Court had determined this question improper. McFadin v. Catron, 120 Mo. 266. (2) In offering testimony as to altercation between plaintiff and defendant James H. Catron when they were children.

On Motion to Dismiss Appeal. (1) In the answer it is alleged that the tax bill, being of record in the city of St. Louis, is a cloud upon the title of defendant’s real estate, and asks, among other things, that such cloud be dispelled. The trial court found, as a fact, that the tax bill was a cloud on defendant’s title and removed that cloud.

Habeas Corpus. (1) Any ordinance that violates the express provisions of the city’s charter is void. By the letter of section 122 (Laws of 1893, p. 100) the city has power to affix the “same penalty and no other for the punishment of such offense,” etc. The punishment prescribed by the ordinance is different; therefore, void.' Laws of 1893, sec. 122, p. 100; R. S. 1889, sec. 1902; Warrensburg v. McHugh, 122 Mo.'649; Johnson v. Daw, 53 Mo.

— Hon. W. I. Wallace, Judge. Defendant, for a reversal, relies upon the following points: (1) Section 2615 (the act approved March 31, 1887) of the Revised Statutes of 1889 is unconstitutional, because: First. It impairs the obligation of the contract contained in defendant’s charter.

<p>Appellate Practice: transfer of cause to the wrong court. Where an appeal is duly allowed by the circuit court to one of the courts of appeals it is entirely irregular to send the transcript in the cause to the Supreme Court, and the latter will transfer the cause to the appellate court to which the appeal was taken.</p>

— Hon. E. J. Broaddus Judge. ) (1) The defendant complains of the action of the trial court in overruling its application for a continuance. The court permitted plaintiff to admit that the witness “if present would swear to the facts,” and overruled the application.

(1) The judgment, execution and sheriff’s deed in proof vested in this plaintiff all the right, title and estate that Green B. Atterbury had in the lands in suit on July 17, 1894, and all the rights of James Ewart, the execution creditor. Knoop v. Kelsey, 121 Mo. 648; Lionberger v. Baker, 88 Mo. 447; Hyland v. Gallison, 54 Mo\ 513; Wagner v. Low, 15 Lawyers Rep. 785.

— Hon. William S. Herndon, Judge. (1) The court erred in refusing the instructions prayed by the plaintiffs, because: First. The deed from Mary Crohan to Edward Smith, made and delivered in 1881, conveyed an interest that only a court of equity could recognize or enforce. Moore v. Harris, 91 Mo. 616; Bohannon v. Combs, 97 Mo. 446, 449; Waller v. Mardus, 29 Mo. 25; Magwire v. Biggin, 44 Mo. 512, 515. An equitable defense can not be shown under the general issue.

— Hon. E. J. Broaddus, Judge. (1) This is a suit in equity. The court will grant such relief as should have been granted by the trial court. Blount v. SJeratt, 113 Mo. 54; Barrett v. Davis, 104 Mo. 549; McMroy v. Maxwell, 101 Mo. 294. Foster paid the note to Cross, who had not the possession thereof, and, in fact, no authority to collect it. Such payment was made at the risk of the party making it.

— Hon. Paris O. Stepp, Judge. (1) County courts in disposing of swamp lands are but the agents of the county with powers limited and defined by law, and their acts, where they exceed their powers, are void. 9 Sturgeon,.v. Hampton, 88 Mo. 203; Bailway Go. v. Hatton, 102-Mo. 45. (2) And like other agents they must pursue their authority and act within the scope of their powers.

— Hon. E. J. Broaddus, Judge. (1) A master owes no duty to provide a safe place for his employee when the only danger that exists arises solely by reason of the very work which the employee is required to perform. Minneapolis v. Lundin, 58 Fed. Rep. 529; Ey Co. v. Jackson, 65 Fed. Rep. 48; Armour v. Eahn, 111 U. S. 313, 318; Beesley v. Wheeler, 61 N. W. Rep. 658; Carlson v. B. B. Co., 28 Pac. Rep. (Ore.) 497; Allen v. B. B. Co., 37 8. W. Rep.

Louis City Circuit Court. — Hon. D. D. Eisher, Judge. The bond mentioned in the opinion of the division is as follows: “average bond. “Whereas, The steamer Nellie Speer, with the barge William Toll in tow, whereof Peter Conrad, master, said barge having on board a cargo of merchandise, sailed from the port of Barfield, Arle., bound for Cairo, III., and, in the due prosecution of her said voyage, met with disaster, by which said barge William Toll with her cargo of Umber was…

— Hon. J. H. Slover, Judge. (1) The petition for the opening of the road, embracing the land in controversy, should not have been admitted in evidence, because the same does not purport to be signed by Mollie O. Hutchison, plaintiff’s grantor; the signature of Thomas Hutchison to said application can not bind his wife, Mollie C. Hutchison.

— Hon. Reuben F. Roy, Judge. (1) The Hannibal, Ralls County & Paris Plank Road Company was incorporated under an “Act to authorize the formation of associations to construct plank roads and macadamized roads.”- Session Acts 1851, page 259.

Louis Court of Criminal Correction. Hon. James R. Claiborne, Judge. (1) The ordinance is void as being unreasonable and repugnant to fundamental rights. State v. Clark, 54 Mo. 17; St. Louis v. Railroad, 89 Mo. 44; City of Tarkio v. Cook, 120 Mo. 1.

Certified from St. Louis Court of Appeals. (1) The plaintiff was entitled to recover in this action, because the animal in question was clearly partnership or joint property, and, therefore, one of the partners, or joint owners, the husband, had a perfect right to dispose of it. Secs. 6864 and 6869, R. S. Mo. 1889; Picotte v. Cooley, 10 Mo. 313; Childress v. Cutter, 16 Mo. 24; 3 Am. and Eng. Ency. Law, p. 358; Lindell v. McNair, 4 Mo. 380; 9 Am. and Eng. Ency.

— Hon. John W. Henry, Judge. (1) The withholding from record of the deed from Lebold & Fisher to Mr. Rohrer, and the mortgage back, was a fraud upon the appellants, Harkness, Wyman & Russell. Lebold & Fisher are in law conclusively presumed to have intended the legitimate effects of their own acts.

Transferred from St. Louis Court of Appeals. (1) There is no issue of fact which requires the examination of a long account within the meaning of Revised Statutes 1889, section 2138. Dooley v. Barker, 2 Mo. App. 325; Ittner v. St. Louis Exposition, 97 Mo. 561. (2) If this case can be said to involve an account, it is certainly not along one.

— Hon. W. W. Wood, Judge. (1) The court should have excluded the contracts and notes from the evidence,because upon their face they constitute one contract and were void. First. Because it was a contract with an Indian nation, and was never approved by the Secretary of the Interior and the commissioner of Indian affairs. U. S. Revised Statutes, sec. 2103. Second. It was void because the Indians had no interests in the land that could be conveyed.

— Hon. E. C. Crow, Judge. The amended petition of the plaintiff, mentioned in the opinion, is substantially as follows, omitting captioivand signature: “petition. “The plaintiff, John M. Glover, for cause of action against the defendant, The St. Louis Mutual Bond Investment Company, alias The Equitable Savings Investment Company, states: “That the said defendant ‘is a corporation duly organized and existing under and by virtue of the laws of the State of Missouri; that its…

— Hon. E. J. Broaddus, Judge. (1) The will of William A. Bogart, deceased, is valid, and not having been renounced by his widow, Delilah Bogart, it determines her interest in his estate and is conclusive upon her. R. S. 1889, secs. 4527, 4528, 5435 and 5439; Register v. Hensley, 70 Mo. 189; Davidson v. Davis, 86 Mo. 440; Burgess v. Bowles, 99 Mo. 543; Greer v. Major, 114 Mo. 145.

Louis City Circuit Court. — Hon, P. R, Flitcraft, Judge. (1) Section 4911 of the Revised Statutes of Missouri of 1889, upon which respondents predicate their claims, is unconstitutional and void, in that it sanctions the taking of private property without due process of law. Const. U. S., 14 Am., sec. 1; Bill of Rights, art. 2, sec. 30; Clark v. Broivn, 25 Mo. 563; Holland v. Depriest, 56 Mo. App. 516; Hicks v. Schofield, 121 Mo. 381; Bussell v. Grant, 122 Mo. 161.

Louis City Circuit Court. (1) Any intermeddling with, or dominion over, the property of another, which is subversive of the dominion of the true owner and in denial of his rights, or any assumption of the right .to control or dispose of the property, constitutes a conversion. Allen v. McMonagle, 77 Mo. 478; Bolling v. Kirby, 90 Ala. 215; Johnson v. Karr, 60 N. H. 426; Balter v. Beers, 64 N. H. 102; Krome v. Dennis, 45 N. J. L. 515; Olds v. Chicago, 33 111. App. 443.

<p>1. Supreme Court: jurisdiction. When the want of jurisdiction of the Supreme Court appears upon the face of the record, the jurisdictional question will be considered by this court, even though it has not been raised'by counsel.</p> <p>2. -: -: amount in dispute. The amount in dispute does not depend upon the amouAt claimed, but upon the real amount in controversy.</p> <p>' 3, _: _: __ Where by his petition plaintiff admits borrowing $2,500 from defendant and executing to defendant a note and deed of trust therefor, but alleges that $600 of said sum was retained by defendant for the purpose of satisfying prior incumbrances, which sum was wrongfully appropriated by the defendant, and ashs that the amount due be judicially ascertained and that upon payment thereof said note and deed of trust be canceled, to which, by way of answer, defendant files a general denial, the amount in dispute is only $600 and interest, and under Constitution 1875, section 12, article 6, section 5, of Amendment of 1884, the Supreme Court has no jurisdiction.</p> <p>4. -: -: title to real estate. Where the only issue made by the pleadings was as to whether or not $600 alleged to have been wrongfully appropriated by defendants should be deducted from a note, secured by a deed of trust held by defendants, the title to real property is not so involved that 'the Supreme Court will have jurisdiction.</p>

<p>Appellate Jurisdiction: Kansas city: city ordinance. An appeal from a eonvietion for a violation of a city ordinance of Kansas City is a civil case, and the Supreme Court has no jurisdiction on appeal ■where the amount involved is under $2,500 and no constitutional or federal question is raised.</p>

— Hon. C. A. Anthony, Judge. (1) The defendant, alleging the deed to be a mortgage only, must make strict, clear, satisfactory, and convincing proof that it was a mortgage, .and that it was not an absolute or conditional conveyance. 1 Jones on Mort., secs. 335, 262, 267, 272; 1 Green-leaf Ev., secs. 45, 97, 200; Bingo v. Bichardson, 53 Mo. 394; Worley v. Dry den and cases cited, 57 Mo. 226; O’Neil v. Capelle, 62 Mo. 203; Schradskiv.

(1) As between plaintiff and defendant, the latter made the first lawful entry upon the land in question and obtained the first right thereto, and has held it continuously since. This is so whether defendant’s rights rest upon the transfer from the homesteader Simpson, or upon a compliance with the act of Congress of March 3, 1875.

— Hon. John W. Henry, Judge. (1) This proceeding is a collateral attack on a judgment, hence unless the circuit court was absolutely without jurisdiction, the judgment will be held valid; irregularities, if any, will not affect the same; if the judgment was irregular or voidable, but not void, it will support the execution and sale, and the sheriff’s deed will vest title in the purchaser.

— Hon. James H. Lav, Judge. (1) This was not a case where a tender was necessary. Suppose a tender would be necessary to redeem from a sale that had been perfectly fair and open. It does not follow that one is necessary, from such a sale as this, where it seems the holder of the first and third lien systematically set. about to destroy the second lien, by the aid of a temporary injunction, a small bond, and such surreptitious methods as are set forth in the bill.

— Hon. H. M. Ramey, Judge. (1) This appeal was taken to this court before the decision in Bank v. Carswell, 126 Mo. 436. The constitutional question raised in the record gives this court exclusive jurisdiction of the whole case. State ex rel. v. Francis, 95 Mo. 44. (2) The ordinance relied on to sustain the bills is void. The authority delegated to the city is found in sections 4644 (par. Ill), 4781, 4782, 4783, Revised Statutes 1879, limited by the act of 1885 (Sess.

— Hon. William S. Herndon, Judge. (1) The court erred in permitting plaintiffs to prove their contract with Watts by parol testimony; that contract, so far as it was intended to create a lien upon the land in question to indemnify plaintiffs as sureties upon Watts’ note to the bank, was clearly within the operation of the .statute of frauds, and no action can be maintained upon it.

— Hon. Jas. T. Neville, Judge. (1) The plaintiffs were compelled to do the. one thing which the agreements were designed to guard against — sustain a loss by the land declining in value. The contracts should have been enforced according to their terms. Watts v. Kellar et'al., 56 Fed. Rep. 1; Stewart v. Caldwell, 54 Mo. 536; Waterman’s Spec. Perf., sec. 14, p. 16; 3 Pomeroy Eq.. secs. 1402,1403.

Certified from St. Louis Court of Appeals. Held: notwithstanding those decisions that the remedy by injunction is a proper one.

— Hon. John W. Henry, Judge. (1) The defendant is estopped, by the terms of the declaration of trust which he received, accepted and retained, to deny that he agreed to its terms. Glenn v. Statler, 42 Iowa, 107; Mateer v. Bailroad, 105 Mo. 320; James v. Clough, 25 Mo.

— Hon. John W. Henry, Judge. (1) Defendant is liable, having acted in his own name without disclosing his principal, and having expressly pledged his own credit for the performance of the promise contained in the declaration of trust. 1 Am. and Eng. Ency. Law, 402, 403, and cases cited. (2) Defendant certainly invested the money of Mrs. Smith.

Hon. O. E. Smith, Special Judge. (1) The first instruction given for respondent is wrong -and misleading. In effect, it tells the jury that appellants have entirely failed to show any title to the land in controversy. It is in direct conflict with the second instruction given for appellants, in which the jury are instructed that adverse possession, if found from the evidence for a period of ten years by Abrogast, vested in him an absolute title to the land.

— Hon. W. M. Robinson, Judge. (1) It is well settled law that if a part of the consideration for a conveyance is fraudulent or fictitious as to creditors, the entire transaction will he vitiated. National Tube Works v. Ring Ref. & Ice Go., 118 Mo. 365. (2) The Chamberlain company was a good and sufficient concern and had the right to sell the goods in controversy to appellants free from any creditor’s claim or equitable trust.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) There was no cause of action stated in the petition.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) By the record in this case the proceedings throughout were in effect entirely ex parte.

<p>• 1. Private Property for Public Use: injunction: practice. Plaintiff can not, in an injunction proceeding, obtain a perpetual restraining order enjoining a city from injuring his property by changing the grade of a street until the amount of damages is ascertained and paid, ''and in the same proceeding recover judgment for the amount of damages which he will sustain by reason of such change.</p> <p>2. -: -: -: election of remedies. Plaintiff alleged -that the city by the changing of the grade of its streets would injure the property of plaintiff to the amount of $75,000, and prayed that it might be restrained from making such change until the amount of the damages that would result to plaintiff’s property thereby was ascertained and paid. At the trial the city announced its consent to a final decree awarding the injunction, but objected to any testimony relating to damages. The‘court made the restraining order perpetual, but refused to determine the amount of damages which “plaintiff in its petition claims it will sustain by reason of the change of the grade therein mentioned.” Held, that under the Constitution plaintiff was entitled to the restraining order, but that plaintiff in the same proceeding could not both prohibit defendant from committing damage on its property and recover the amount of that damage. Plaintiff had its election to either enjoin the defendant from damaging its property until just compensation was paid it, or to wait until the damage actually accrued and then sue the city for full compensation, but it could not consolidate the two proceedings.</p> <p>3. Pleading: necessary implication. The petition alleges that the defendant is prosecuting the work of changing the grade of certain streets “to the grade established by ordinance 15119.” Erom this allegation it is necessarily implied that the work was done in pursuance of some ordinance, since the defendant can only act by ordinance, and it is a well established rule in pleading that things which are necessarily implied need not be alleged.</p>

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) The trial court erred in refusing to give, as asked, the appellant’s second instruction. There was ample evidence tending to show “the compensation at the time usually paid to and received by competent real estate agents of said city for like services.” 2 Sutherland on Damages, p. 444; see, also, 1 lb., p. 799; White v. Harman, 51 111. 243; Harrison v. Glover, 72 N. Y. 451; Ragan v. Railroad, 111 Mo. 456.

Louis City Circuit Court. — Hon. L. IN Valliant, Judge. (1) We submit two propositions arising on the face of the petitioner’s bill which prevent an order and restraint, and which deny them the relief prayed for. First: The provisions of the act of 1895, pages 198, 199, and 200, apply to foreign insurance companies •doing business in this State on the assessment plan.

— Hon. J. O. Lamson, Judge. - (1) All the evidence in the case except one deed, the only one put in evidence, related to the question of the place of plaintiff’s residence and it would be stating the matter correctly to say that its relevancy is totally incomprehensible. The plaintiff after stating that he was present at the sale of the property in controversy by the constable of his township was asked if ■ he claimed his exemptions and asked to have them set out.

<p>1. Taxation: cities and towns. That the State may eolleet an ad valorem tax on property used in a calling, and at the same time impose a license tax upon the pursuit of that calling, and may delegate such power to a municipal corporation, is well settled law in this State.</p> <p>2. -: police regulation: revenue. Such power may be exercised by the city either as a police regulation or for the purpose of rasing revenue within the constitutional limitations.</p> <p>3. Street Railways: license tax for cars: fines. An ordinance taxing a street railway $10 for each car operated by it, and imposing a fine on the company for operating its cars without having paid such license tax, is valid, and a conviction of the manager for violating such ordinance was proper.</p> <p>4. -: --: -: subsisting contracts. In construing the ordinance of a city conferring upon a company the authority to construct and operate a street, railway, the right of the city to exact license fees will not be denied unless such right has been expressly surrendered in the ordinance; and where the contract between the eity and the company does not in terms dispense with the payment of a license, the rights of the company are not impaired by a subsequent ordinance requiring such .payment.</p> <p>5. -: exemptions from taxation: Construing ordinances. Exemptions of a street railway and other companies hy name from taxation are not to he extended hy construction heyond the plain terms of the grants, and ordinances of this kind are to he strictly construed against the companies in favor of the public.</p> <p>6. -: -: ultra vires. A contract on the part of a city not to levy and collect a tax from a railroad company thereafter, is ultra vires and void.</p>

Transferred from St. Louis Court of Appeals. This action was begun before a justice of the peace, 'upon the following statement: “Plaintiff states that it and defendant were at the times hereinafter mentioned corporations, duly organized according to law, and that defendant is and was a common carrier. “Plaintiff states that on the sixth day of January, 1892, one W. W. Pool shipped from Pleasonton, Neb., over defendant’s road, one carload of No. 2 corn in Car No. 7628,…

(1) Yery likely it is true that the rich should be generous, yet it also is true that courts in rendering judgments are not led to do so by motives of generosity. Stuart v. Church, 84 Pa. 390. (2) The notes sued' upon were not gifts, they were simply promises to give. The Gammon Co. Lem. v. Rollins, 128 Ind. 92; Smith v. Smith, 30 N. J. Eq. 564. There was no subscription. In such case the mutual promise of the subscribers is a consideration.