Volume 186 — Missouri Reports

Louis City Circuit Court. — Row. Jesse A. McDonald, Judge. (1) The admission of officer Michael Cremins’ testimony of a statement made by defendant to the police was error. This testimony as submitted was entirely inadmissible, and its admission is fatal error, for the reason that it was used to attack the credibility of the witnesses who swore to the defendant’s alibi, and was in its nature prejudicial to the defendant’s case in the minds of the jury.

Louis City Circuit Court. — Now. Daniel G. Taylor, Judge. All the evidence offered by the State shows that if the defendant committed any offense it was false pretense and not larceny, and the information should have been under section 1927, , Revised Statutes 1899. Wharton Crim. Law, secs. 2087, 2116 and 2118; 'State v. Green, 7 Wis. 676; State v. Evers, 49 Mo. 542; State v. Chunn, 19 Mo. 233; State v. Delay, 93 Mo. 98; State v. Tull, 42 Mo.

Louis City Circuit Court. — Hon,, Daniel G. Taylor, Judge. (1) Defendant’s plea in bar was sufficient, and the State’s demurrer admits the existence of tbe record of defendant’s former acquittal. State v. Williams, 152 Mo. 120; State v. Moore, 156 Mo. 135.

— Hon. J. J. Gideon, Judge. It was unnecessary to allege in the information the various times at which money was paid to the defendant as secretary of the lodge; it was sufficient to know that a certain amount of money had been received by him by virtue of the trust relationship. This, in connection with the demand and refusal which is shown in evidence to have been made, is sufficient to fasten the guilty intent on the part of the defendant.

<p>NO ARRAIGNMENT: Judgment Reversed. Where the record shows that the defendant was not arraigned before he was put upon his trial, as required by statute, the judgment will be reversed and the cause remanded.</p>

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) If defendant assisted in any way in the larceny, and in the perpetration of that crime had the cigars taken to his place and sold them, he could not he convicted of receiving, hut only of larceny. State v. Honig, 78 Mo. 249; Owen v. State, 52 Ind. 379; Matter of Franklin, 77 Mich. 615; People v. Brien, 53 Hun 496.

Louis City Circuit Court. — Ho». Daniel G. Taylor, Judge. (1) The court failed to instruct the jury upon all the issues of law in the case in that the words “carnal knowledge” were not defined, nor was the jury instructed as to what was necessary to find in order to find defendant had had “carnal knowledge” of the prosecutrix. State v. Grubb, 55 Kan. 680.

— Eon. B. E. Eloy, Judge. (1) The court should have sustained defendant’s motion in arrest of judgment, because it is bad criminal pleading to blend in one information different distinct'offenses calling for different legal judgments and not growing out of the same transaction, as a defendant could not be consistently tried and convicted for burglary and grand larceny and for receiving the same goods knowing them to have been stolen, under one and the same information.

<p>NO BILL OF EXCEPTIONS. Where defendant files no bill of exceptions, there is nothing before the appellate court except the-record proper, and if that is free from error, the judgment will be affirmed.</p>

Louis City Circuit Court. — Row. ' Daniel G. Taylor, Judge. (1) It is the court’s action on a day certain which is alleged to give the State its right of action stated in the scire facias, and its case fails in the absence of said alleged action as by its record of that date. The surety has the right to know definitely from the State when the alleged default of his principal and himself occurred.

<p>AFFIRMED ON AUTHORITY OF PREVIOUS DECISION. This case, involving the same legal propositions presented in the case of State v. Epstein, ante, p. 89, is, upon the authority of that case, affirmed.</p>

Louis Court of Criminal Correction.— Hon. Hiram Moore, Judge. (1) The Factory Inspection Law is general in its character and applies to all factories throughout the State. (2) The act was passed as a police regulation, for the protection of the lives, health and morals of the people. The wholesome regulations of the police power of the State so necessary in cases of this kind are so apparent that direct reference to any particular condition is unnecessary.

Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge. (1) The testimony for the State proves, if anything, a violation of section 2213, Eevised Statutes 1899. This section repeals and abrogates the common law or constructive larceny when applied to a case as at bar, and makes the obtaining of property by means of “fraud and deception” a substantive and distinct offense. The defendant was indicted under section 1898, Eevised Statutes 1899, for grand larceny.

— How, Henry C. Riley, Judge. This case should be affirmed on the record, defendant having failed to file his bill within the time allowed; in fact, having failed absolutely to file a bill of exceptions.

<p>1. ASSAULT WITH INTENT TO KILL: Aggressor: Conflicting Evidence: Province of Jury. Where, in a prosecution for assault with intent to kill, the evidence is conflicting as to who was the aggressor, it is the province of the jury, who see and hear the witnesses, to determine that fact, and the appellate court will not interfere with their verdict.</p> <p>2. -: Punishment. A sentence of two years’ imprisonment in the penitentiary for assault with intent to kill, being the minimum punishment prescribed by law for such offense, is not a cruel or unusual punishment.</p>

Louis City Circuit Court. — How. Jesse A. McDonald, Judge. (1) There was substantial evidence tending to show that the defendant murdered the deceased. On the other hand, there is evidence that would have amply warranted the jury in acquitting the defendant on the ground of self-defense. If defendant’s account of the tragedy, and that of his witnesses, should be given full credit, then the killing was justifiable.

— How. H. C. Pepper, Judge. Instruction 6 is erroneous in that it limits defendant’s right of self-defense to the assault made by deceased alone upon him, and leaves out of consideration his right to use a weapon if necessary to protect himself from others acting in concert with deceased. State v. Adler, 146 Mo. 18. Instruction 6 is criticised as being erroneous.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. The St. Louis court of criminal correction can exercise only such jurisdiction as is conferred on it by statute. State ex rel. v. Murphy, 132 Mo. 382; Ex parte Bedard, 106 Mo. 616; Williams v. Bowers, 26 Mo. 601; State v. Metzger, 26 Mo.. 65.

— Hon. John P. Butler, Judge. (1) The reading of the verdict of the coroner’s jury to witness Davenport was error. State v. Garth, 164 Mo. 553. The fact that the court permitted the verdict of the coroner’s jury to be read in the form of a question, and then sustained an objection by defendant, does not cure the error. It is like admitting incompetent evidence in a criminal case and then attempting to cure the error by instructions.

— Sow. Jas. T. Ne-ville, Judge. (1) The verdict of the jury was the result of bias and prejudice of the citizens of Dallas county.

— Ho». H. G. Pepper, Judge. The whole law in regard to school districts is treated in chapter 154 in four different articles. The provisions of each several article relate to a different class of districts. Thus, the provisions of article one are intended to relate only to the government of country districts, while the second article relates only to school districts of towns, villages and cities, and so on.

— Row. A. D. Burnes, Judge. (1) The court erred in sustaining plaintiff’s motion to strike out part of defendants’ answer, and in refusing to, admit evidence tending to prove that the ordinances extending the city limits were unreasonable and unjust. The city of Plattsburg could only extend its corporate limits by an ordinance passed and submitted in the manner directed by the statute, and such ordinance must be a reasonable use of the power granted.

<p>APPELLATE JURISDICTION: Poll Tax Suit: Insufficient Statement. Where the sole question involved in the appeal is whether any sufficient statement was filed with the justice of the peace to constitute a cause of action in a proceeding to collect by suit a poll tax of three dollars, the Supreme Court has no jurisdiction of the appeal. That does not involve a construction of the revenue laws, but is merely a question of practice.</p>

— Hon. Jno. W. Henry, Judge. (1) The court erred in sustaining plaintiff’s motion for new trial. The verdict and judgment for defendant was right under the pleadings and the evidence, and plaintiff made no showing whatever entitling him to a new trial.

Louis City Circuit Court. — Ho». S. P. Spencer, Judge. The verdict was not against the weight of the evidence. There was no evidence to sustain a verdict for the plaintiffs in this case. The evidence of the negro woman, Alice Reed, and the man, John Miller, given in its widest scope, could not entitle the plaintiffs to a verdict. If the evidence of Miller means anything, it means that the Casey hoy was knocked off the car he was on by being struck by the passing car.

— Row. Jos. D. Perkins, Judge. (1) The judgment in favor of W. A. Moter against Thos.

Transferred from St. Louis Court of Appeals. There was no case made out against appellant because the petition fails to allege ownership in the property at the time of the issuance of the policy, and fails to plead ownership at the time of the fire. Before plaintiff can recover at all lie must show ownership at the time of the issuance of the policy. Story v. Ins. Co., 61 Mo. App. 534; Harness v. Ins. Co., 62 Mo. App. 245; Clevinger v. Ins. Co., 71 Mo. App. 73; Wolf v. Ins.

Louis County Circuit Court. — Bow. Jno. W. McElhinney, Judge. (1) The court erred in overruling defendant’s objection to the introduction of any evidence. The first count falls far short of alleging that the act charged was within the scope of his employment. The fact that the motorman and driver was in charge of the car, at the time of the alleged commission of the acts, does not state a case.

<p>Appeal from St. Louis County Circuit Court . — Eon. Jno. W. McEZhinney, Judge.</p> <p>. (1) Plaintiff should have been nonsuited. Pew v. Bank, 130 Mass. 396; Boston v. Dist. of Col., 19 Ct. of Claims 157; Scudder v. Ames, 89 Mo. 510; Guenther v. Birkicht’s Admr., 22 Mo. 445'. At least the verdict is so strong against the evidence as to raise a presumption of prejudice or disregard of the instructions on the part of the jury. Spohn v. Railroad, 87 Mo. 84; Spiro v. Railroad, 76 S. W. 689. (2) Instruction 1 was erroneous in itself and is inconsistent with 6. Cheeney v. Railroad, 68 111. 575; Adlets v. Shoe Co., 84 Mo. App. 292; Taussig v. Railroad, 166 Mo. 33; Hodges v. Railroad, 29 Vt. 222; Nat. Loan Co. v. Rockland Co., 94 Fed. 337; Doe v. Coal, etc., Co., 78 Fed. 67; Baker v. Railroad, 122 Mo. 596. (3) Instruction 2 was erroneous. Railroad v. Christy, 79 Pa. St. 58; Tift v. Bank, 141 Pa. St. 550; Hall v. Railroad, 28 Yt. 406; Scudder v. Ames, 89 Mo. 510; Pew v. Bank, 130 Mass. 396. (4) Instruction 3 was erroneous. Guenther v. Birkicht’s Admr., 22 Mo. 445; Allen v. College, 41 Mo. 309; Westgate v. Munroe, 100 Mass. 227; Pew- v. Bank, 130 Mass. 395; Hartwell v. Christopher, 61 Mo. App. 64; Whaley v. Peak, 49 Mo. 83. (5) It was error to permit plaintiff to give evidence of the charges in the account and to overrule the objections of defendant to the particular items of the account. R. S. 1899, sec. 630; McAdam v. Scudder, 127 Mo. 355; Dawson v. Quillen, 61 Mo. App. 676; Sidway v. Live Stock Co., 163 Mo. 372; Landau v. Cottrell, 159 Mo-. 317; State v. Smith, 89 Mo. 409; Railroad v. Granger, 85 Tex. 577; Watkins v. Donnelly, 88 Mo. 322. (6) It was error to refuse to allow Pitman and Edwards to state what their understanding and expectation were about plaintiff being paid, and whether they ever employed plaintiff as an attorney with the expectation of paying him. (7) The verdict was not a lawful verdict. • The defendant was entitled to have the case determined by a unanimous verdict. Thompson v. Utah, 170 U. S. 343; State v. Powell, 77 Miss. 543; Edwards v. Lesueur, 132 Mo. 433; Yaughan v. Scade, 30 Mo. 604; Morrison v. Railroad, 96 Mo. 602.</p> <p>(1) Under the law of this jurisdiction, the opinion upon the former hearing of this case (166 Mo. 28) is the law of this ease. May v. Crawford, 150 Mo. 504; Gordon v. Burris, 153 Mo. 223; Carey v. West, 165 Mo. 455; State v. Spencer, 166 Mo. 274. (2) Instruction 1 is carefully drawn upon- lines laid down by this court in the former opinion (166 Mo. 28). The complaint against it is that “it' ignores the fact that the plaintiff was a director and officer most of the time when the services sued for were rendered.” The instruction itself need only be read in order to refute this statement. (3) Defendant complains that the exhibit attached to the petition is-not an itemized account. This contention is bottomed upon the provisions of section 630, Revised Statutes 1899. This is an action for services rendered. It is not contended that the petition does not state a cause of action. This is conceded. The contention is that the account filed therewith is indefinite and uncertain. This objection is not justified. It is hard to conceive how the account of an attorney against his client could or should be more particular than the account sued on in this case. (4) The employment of counsel in this case against the St. Louis Trust Company was upon a motion made by Mr. Houseman and seconded by Mr. Edwards. It is true that other counsel besides Mr. Taussig was employed by this resolution, but the testimony is conclusive and indisputable that Collins and Jamison did nothing whatever in connection with this case, on account of their relationship to the Trust Company, and that Mr. Hidden did nothing whatever, except that he was in the court room when the case came up, but took no part whatever in the trial, and that the pleadings were' entirely prepared by Mr. Taussig. The employment was clearly joint and several, and the value of the services of Collins and Jami-son being admittedly nothing, and those of Mr. Hidden of the same value, there was nothing in the resolution which made the contract a joint contract; but it was a several contract, and there was no- dispute as to the value of these services. (5) As to the plea to the jurisdiction, the sheriff’s return shows that the writ and petition were served in the city of St. Louis upon the secretary of the company, he being in said defendant’s nsnal business office, and in charge thereof at the time of service.</p>

— Row. Gallatin Craig, Judge. (1) The charter and ordinances of a city stand in the same relation to each other as the constitution and statutes of a State. And the same rules are applicable in the one case as in the other in determining a conflict between the charter and ordinance. In other words, the charter of a city is its constitution. Quinette v. St. Louis, 76 Mo. 402; Kansas City v. Hallett, 59 Mo. App. 160.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) The master must furnish reasonably safe tools, and keep them safe. The servant, relying on this rule, has a right to presume the master has discharged his duty toward him. If the master furnishes a tool which he knows, or, by the exercise of reasonable care, might know, is defective, or not reasonably safe, he is liable to the servant for any injury resulting from such defect.

— Row. A. M. Woodson, Special Judge. (1) Husband and wife may take real estate as tenants in common where the deed by which they take contains language clearly indicating an intention on the part of the grantor that they shall so take. 1 Preston on Estates, p. 132; 2 Preston on Abstracts of Title, P’. 41; Shep.

Louis City Circuit Court. — Hon. ■ Daniel D. Fisher, Judge. Transferred to St. Louis Court of Appeals. The court erred in instructing that less than twelve of the panel could render a verdict. This appeal was taken before the constitutional question involved had been passed upon by this court. We now again present, but do not argue, the point.

— Row. James Gibson, Judge. (1) The- notices filed with, the city treasurer of Kansas City answer the purpose sought by the charter to be attained and were a substantial compliance with its terms.

— Hon. James Gibson, Judge. (1) If upon the pleadings and evidence the verdict was for the right party, no error in giving instructions would justify a new trial. Hannuth v. Railroad, 129 Mo. 642; Yogg v. Railroad, 138 Mo. 180; Bartley v. Railroad, 148 Mo. 142; Fox v. Windes, 127 Mo. 514; Fitzgerald v. Barker, 96 Mo. 666. (2) (a) The evidence at the trial and the undisputed facts clearly prove that respondent was guilty of such contributory negligence as would bar a recovery.

Louis City Circuit Court. — Now. Warwick Hough, Judge. (1) The public administrator had no right to talce charge of the partnership estates. E. S. 1899, secs. 7, 8 and 292. (2) The probate court had no power to appoint any one as administrator of any of the estates before the lapse of thirty days, unless those entitled to administer filed a written renunciation, or it was proved by evidence there was no one in the jurisdiction entitled to administer.

— No». W. N. Evans, Judge. (1) The tax deed based/ on the judgment for taxes against David Yinton, who was the record owner when said taxes were assessed, suit brought, judgment rendered, and sale had, is sufficient to vest in defendant the legal title as against plaintiff, who claims under said David Yinton by deed dated in 1859, the record of which was burned, it not appearing that either the collector or the purchaser at the tax sale had any notice of said deed.

— How. Samuel Davis, Judge. There was error in granting a change of venue. 1. The application does not state that the opposite party has an undue influence over the judges of Divisions 1, 2, 4 and 5, the allegation being merely “that the reasons urged for change of venue will apply as well to the Honorable J. H. Slover, Judge of Division No. 2,” etc. 2.

— No». J. L. Fort, Judge. (1) The court erred in permitting witness Keaton to testify, over defendant’s objection, to the fact that Thurmond had agreed with him, Keaton, that he would notify him in case Shelton, the beneficiary under the first deed of trust, should insist on the collection of his deht. Such evidence was not competent as against either of the other defendants. They were not shown, to have been present when this agreement was made.

— Hon. E. M. Hughes, Judge. (1) The court should have required plaintiff to elect on which charge of' negligence he would stand and go to trial.

— No». W. N. Evans, Judge. (1) A judgment rendered against a party who was' dead at the date of the institution of the suit against him, such suit being by order of publication, and for the purpose of enforcing a claim against such party’s real estate, will not affect the interest and title of the owner of such land, whether the owner thereof be at the time heir, devisee or grantee.

— Ho». Argus Cox, Judge. (1) When the proceeding is by information it must he signed by the prosecuting attorney. R. S. 1899, sec. 2477. And this undoubtedly means in the name of the person elected or appointed to that office, i. e., in his official capacity and under the name by which he was elected, commissioned and qualified. (2) An initial is not recognized as a name.

<p>Transferred from St. Lonis Court of Appeals.</p> <p>Plaintiffs’ petition states a good cause'of action. Font v. Giraldin, 64 Mo. App. 165; Raddick v. Hutchinson, 95 U. S. 210; Bell v. Campbell, 123 Mo. 1; Turley v. Edwards, 18 Mo. App. 676; Sharan v. Gager, 46 Conn. 189; Foley v. Green, 14 R. I. 618; Gordon v. Elliott, 15 Cent. L. J. 232; Eadie v. Slimmon, 26 N. Y. 9; Berlien v. Bieler, 96 Mo. 491.</p> <p>The agreement, all of it, in relation to all matters pertaining to the loan procured by Crawford for the parties, as set out in plaintiffs ’ petition, was a contract in which the parties thereto dealt on equal footing with each other. There was no duress exercised or threats made. Crawford refused to make the loan unless he was paid what he demanded. Plaintiffs considered, and concluded they would rather pay the charges demanded by Crawford than suffer foreclosure of the mortgage of 0 ’Day. It does not appear that Crawford had any control over or concern with the O’Day mortgage. It only appears that the Lappins wanted money very badly with which to pay the 0 ’Day debt, and that Crawford got as much put of them as he could for furnishing it. Such conditions are incidents of everyday life, and courts can not undo trades made under such circumstances, and make different arrangements between parties more comporting with generally accepted ideas of morality, equity and good conscience. Kitchin v. Gfreenbaum, 61 Mo. 110; Davis v. Luster, 64 Mo. 43; Fout v. Giraldin, 64 Mo. App. 170; Hackley v. Headley, 45 Mich. 570; Clark on Contracts, sec. 170; Secor v. Clerk, 22 N. E. 754; Doyle v. Church, 31 N. E. 221.</p>

diaries Circuit Court. — Now. N. W. Johnson, Judge. (1) The testimony of Mary Berkmeier, a material witness for the State, should not have been admitted, as her name was not endorsed on the information, although her testimony was known to the prosecuting attorney at the time he filed the information. State v. Stifel, 106 Mo. 133; State v. Nettles, 153 Mo. 469.

<p>APPEALS: Abstract: No Index. Where there is no index to the printed abstract, as the rules of this court require, the appeal, on motion of respondent, will be dismissed.</p>

— Ho». W. A. Davidson, Judge. (1) The information not being verified when filed the verification was made before trial by amendment by leave of court. This amendment was authorized by the statute, section 2481, Eevised Statutes 1899. State v. Patton, 96 Mo. App. 32. (2) The information charges the crime in the form many times approved by this court, and is sufficient.

Louis City Circuit Court. — Ron. Wm. ■ Zachritz, Judge. (1) The taxhill sued on is void by reason of the fact that an aggregate assessment is made against several lots of ground. Miller v. Anheuser, 4 Mo. App. 436; St. Louis v. Provenchere, 92 Mo. 66. (2) In order to enforce the penalty of fifteen per cent interest for default in payment after demand, the demand must be personal. Here no demand of any kind was proven except against one of a large number of defendants.

— How. Jos. D. Perkins, Judge. (1) Tbe information does not charge any offense for tbe reason that it does not charge that the assault was made forcibly and against the will of the prosecutrix. Smith v. State, 80 Am. Dec. 358; Harden v. State, 46 S. W. 807. (2) The intent with which the assault is committed must be the specific intent to rape, and the evidence must show the intent of defendant beyond a reasonable doubt. 23 Am. and Eng.

— Mon. Jno. W. Wofford, Judge. (1) The court erred in refusing to allow defendant to interrogate witness Kee as to the peculiar ceremonies of his religion in administering oaths. State v. Chyo Chiagk, 92 Mo. 395; 1 Phillips on Ev. (4 Ed.), 20. (2) The court erred in giving instruction 1. Sec. 1893, R. S. 1899.

— Hon. Hugh Dabbs, Judge. (1) Motions for judgment on the pleadings are not favored; every intendment, every presumption is against them. McAllister v. Walker, 39 Minn. 565; Carrie v. Railroad, 23 Ore. 400; Dunham v. Byrnes, 36 Minn. 106; Giles, etc., v. Recamier, etc., 14 Daly (N. Y.) 475. (2) Judgment on the pleadings cannot be rendered where the answer denies any material allegation of the petition. Chapman v. Tallant, 1 Kan.

— Hon. David II. Eby, Judge. (1) The authority of the husband, O. P. Hedges, who acted as agent for his wife, was sufficiently established, as was also the genuineness of the letters pleaded and offered in evidence from Mrs. Hedges to Lizzie Brevator. R. S. 1899, sec. 4556; Humholt v. Mill Co., 77 Mo. App. 672; Long v. Martin, 152 Mo. 675. (2) The description of the land, for which specific performance is asked, was sufficiently definite to locate the land.

— Hon. Hugh Dabbs, Judge. (1) The court erred in telling the jury in instruction 12 that if plaintiff was not walking on the stone sidewalk when injured, but was walking on the grass plot between the sidewalk and street, and in doing so was injured, the defendant would not be liable. Fockler v. Kansas City, 94 Mo.

— Ho». James H. Slover, Judge. (1) A taxbill for street improvements issued under the charter of Kansas City is not a lien until receipted for to the board of public works. Art. 9, sec. 18, charter of Kansas City; Cooley on Taxation (2 Ed.), 444; Jaicks v. Sullivan, 128 Mo. 177; Inhabitants of Houstonia v. Grubbs, 80 Mo. App. 433; Smith v. Barrett, 41 Mo. App. 460. (2) Nor is it an incumbrance or charge of any kind before it becomes a lien.

— Row. E. R. Mc-Keef Judge. (1) It is necessary in this case to show two intents — the intent to commit burglary, and the ulterior intent to commit a felony. 1 Bishop, Or. Law (4 Ed.), secs. 427, 667; Roscoe’s Crim. Evidence (6 Am. Ed.), 345; 2 Am. and Eng. Ency.

— Hon. Jno. P. Butler, Judge. The court found that the property in question was worth $1,750. It was sold at trustee’s sale for $200. This was not such gross inadequacy as sustain a decree setting aside the sale.

— Hon. James T. Neville, Judge. (1) The whole title was vested in defendant: First, by the conveyance by Sandy Jarrett; second, by the administrator’s deed to defendant. (2) The order of the probate court approving the sale 'by the administrator to defendant was a judgment that can not be attacked in a collateral proceeding. The same is final. Covington v. Chamblin, 156 Mo. 587. (3) This attack on same is collateral.

— Now. James E. Easell, Judge. (1) The tender made January 11, 1899, of the amounts due on both notes, principal and interest, and the costs of acknowledging both deeds of trust satisfied on the records, stopped the running of interest from that date. R. S. 1899, sec. 1565; Landis v. Saxton, 89 Mo. 375; Knollenberg v. Nixon, 171 Mo. 445; Berthold v. Rey burn, 37 Mo. 586; Raymond, Kepler & Co. v. McKinney Bros. & Co., 58 Mo. App. 303; McGuire v. Brockman, 58 Mo.

— Hon. Franh B. Hearing, Judge. (1) The petition does not state facts sufficient to constitute a cause of action, and the demurrer to the petition should have been sustained. Huff v. Land Imp. Co., 157 Mo, 65; Ball v. Woolfolk, 175 Mo. 278; Elliott v. Sheppard, 179 Mo. 382. (2) Actions for the recovery of land taxes are actions to enforce a lien against the land, and the judgment is only against the land even though there was personal service.

— -Now. Jno. P. Butler, Judge. (1) The record of the township hoard must show affirmatively that the commissioners were freeholders. An omission in this respect violates an express provision of the Constitution. Art. 2, sec. 21, Const.; sec. 10345, R. S. 1899. The terms “freeholder” and “householder” are not synonymous. “A freeholder is a person who possesses a freehold estate- in land.” Black’s Law Dictionary; Anderson’s Law Dictionary; Fore v. Hoke, 48 Mo.

Mandamus. The bonds were issued under section 5968, Revised Statutes 1899, which authorizes cities of the fourth class to issue bonds for the erection of a city hall and other public buildings and-for furnishing the same, and for the construction of waterworks, electric light plants, etc. In this section there is not a disjunctive.

— How. W. B. Teasdale, Judge. (1) The power to make or grant a charter for a municipal corporation is a legislative power. Owen v. Baer, 154 Mo. 512; Sanders v. Railroad, 147 Mo. 426; State ex rel. v. Railroad, 151 Mo. 188; Cooley, Const. Lim. (7 Ed.), pp. 131, 261-2. (2) Prior to the adoption of the Constitution of 1875, this power was vested solely in the General Assembly of the State.

Mandamus. As far as the judges of the St. Louis Court of Appeals are concerned, they abide by the conclusion reached by them, that it is impossible to decide this case without passing upon constitutional questions.

— Non. James T. Neville, Special Judge. (1) It is contended that the levy made by the city authorities of twenty-five cents on the $100 valuation, for the purpose of paying the interest on such bonds, is illegal and invalid, because the rate of taxation necessary to pay such interest and the principal, when it becomes due, was not submitted to the qualified voters of the city and voted- by them at the time the bonds were authorized to be issued by such vote.