Volume 283 — Missouri Reports

— Hon. W. S. G. Walker, Judge. (1) The defendant was entitled to a trial by a jury of the issues of fact specially as made by the plea in bar. Pleas in bar in Missouri, which has no statute permitting pleas in bar to go to the jury along with the general issuse, must -be tried by a jury specially. The plea in bar was admitted by the State. State v. Moore, 66 Mo. 372; Kelly’s Crim. Law & Pr. (3 Ed.) sec. 224, 226, 237.

— Hon. W. T. Ragland, Judge. (1) The court erred in the exclusion of this evidence. (2) The court erred in giving plaintiff’s peremptory instruction to find a verdict for plaintiff. Every other officer of the county occupied a room in the court house, sharing same with another officer, to the convenience of the public and without prejudice to the rights of the public and the due discharge of the duties of such officers.

— Hon. R. A. Breuer, Judge. (1) The information contains every necessary allegation and is in accordance with approved precedents. Sec. 4496, R. S. 1909 j Kelley’s Criminal La.w and Practice, sec. 588, p. 517; State v. Athanas, 150 Mo. App. 588; State v. Smith, 24 Mo. App. 413. (2) The verdict is sufficient. A general verdict finding the defendant guilty as charged in the information, when the information is not duplicitio.us, is good.

<p>DENTIST: Practicing After License Revoked: Conviction Nullified By Civil Case. Where the registration and license of defendant as a dentist were revoked by the Missouri Dental Board and in the proper civil proceeding the Supreme Court has ruled that under the statute the said board had no authority to revoke his original certificate of registration and his license issued thereon, a conviction of the defendant upon a charge of practicing dentistry without being legally registered and without having a license authorizing him to practice must be reversed.</p>

— Eon. Fred Stewart, Judge. (1) There are numerous reported cases in this State holding that an information which follows the words of the statute on which it is based, is sufficient; and there are also many cases holding that the same strictness of pleading is not required in misdemeanors as in felonies. Sec. 4713, R. S. 1909; State v. Schieneman, 64 Mo. 386; State y. Ellis, 71 Mo. App. 269; State v. Stegall, 65 Mo.

Louis City Circuit Court. — Hon. Charles B. Davis, Judge. (1) Prejudicial error was committed in the instruction stating that the defendant had knowledge that the car was stolen if a reasonably prudent and cautious man ■ would have known, under the same circumstances, that it was stolen. Kasle v. United States, 147 C. C. A. 561; Peterson v. United States, 130 C. C. A. 400; Konda v. United States, 166 Fed. 93; Case Note, 22 LR. A. (N. S.) p. 833.

— Hon. Arch A. Johnson, Judge. (1) The State wholly failed to prove the age of the prosecuting witness, Lucy Harris. State v. Houx, 109 Mo. 645; State v. Gully, 199 S. W. 124; State v. Ackley, 183 S. ~W. 289.

Quo Warranto. (1) The streets of St. Louis are dedicated to public uses only, and they are held by that municipality in trust for such uses. 'State ex rel. Underground Service Co. v. Murphy, 134 Mo. 564; Glasgow v. St. Louis, 87 Mo. 682. (2) The laws under which respondent is and was incorporated conditioned its right to lay conductors for conveying electricity through the streets, lanes, alleys and squares of any city (including St. Louis) upon the consent of such city.

<p>CONSTITUTIONAL LAW: Applicable to One Coiinty. A proviso to an act declaring “that the provisions of this act shall not apply to any county which now contains or may hereafter contain eighty thousand and less than one hundred and fifty thousand inhabitants, in which circuit court is held in two or more places in- said county,” is a special law, applicable to only one county as certainly as if it had named Jasper County, and is unconstitutional; and being invalid, it affords no excuse for refusal to obey the rest of the act.</p>

— Eon. William 0. Thomas, Judge. (1) The court should have rendered judgment for the full amount of the tax bill. The work was extra work not contemplated by the terms of the charter. It was purely incidental and was necessary ■ to produce a properly graded street, and the city had authority to direct the extra work to be' done and to determine the price thereof. Allen v. Rogers, 20- Mo.

<p>1. INCOME TAX: Act of 1919: Applied to Entire Year. The Legislature intended that the Act of 1919, increasing the income tax from one-half of one per cent to one and one-half per cent, should apply to “the entire net income received in the calendar year 1919.”</p> <p>2. -: Retrospective Act: New Obligation. So much of the amendment of 1919 to the Income Tax Daw as undertook to assess an additional tax of one per cent upon that portion of the net income for the year 1919 which was received by the taxpayer prior to the time said amendment went into effect on August 7, 1919, created a new obligation and imposed a new duty, and was violative of the provision of the Constitution (Art. 2, sec. 15) declaring that no law “retrospective in its operation” can be passed by the General Assembly.</p> <p>Held, by GRAVES, J., dissenting, that the Act of 1919 was in effect a repeal of the prior act, and the Legislature could have entirely repealed the prior law and enacted a new income-tax law imposing a tax on all the income received during the year 1919 prior to December 31, and that was in effect what was done; and the taxpayer cannot complain that the Legislature enacted a law in May, effective in August, which imposed a tax upon his entire income received during the year the law was enacted, for such a law would not create a new obligation or impose a new duty, and would not be retrospective. The basis for an income tax is the income for a whole year, and the,amount of the income cannot be ascertained until the year ends, and a law which imposes a tax on the income for the entire year, enacted before the year ends, is not retrospective.</p> <p>3. --: -: Extent of Operation. But the fact that the amendment of 1919 to the Income Tax Law, in so far as it undertook to increase the tax on the income- received by the taxpayer prior to the time said amendment went into operation on August 7, 1919, was retrospective, did not make invalid the tax imposed by the former law upon so much of the income as was received prior to August 7, at the old specified rate, for that portion of the amended rate which did not exceed the old rate did .not impose a new obligation.</p> <p>4. -: -: Power of General Assembly. The General Assembly, unless restricted by the Constitution, may enact a valid retrospective law, unless inhibited by some other constitutional provision. But it has no power to enact such a law when the Constitution, specifically says that no law “retrospective in its operation” can be passed.</p>

<p> Mandamus. </p> <p>(1) This court has the power to issue a writ of mandamus in this case. Sec. 3, art. 6, Constitution; State ex rel. v. Grimm, 220 Mo. 483; State ex rel. v. Patterson, 207 Mo. 129; State ex rel. v. Smith, 172 Mo. 446, 619; State ex rel. v. Weeks, 93 Mo. 499'. (2) The bond offered was sufficient. Secs. 2038, 2042, R. S. 1909. (3) Rule No. 40 of the St. Louis Circuit Court is null and void because it is in contravention of the provision of said Section 2040, because it shortens the time given defendant by said statute in which to give such bond and makes requirements in the giving of such bond not provided in said statute. Said rule is therefore “unconstitutional.” State ex rel. v.' Withrow, 133 Mo. 500; Pelz v. Bottinger, 180 Mo. 261; State ex rel. v. Cockrell, 217 S. "W. 52;9. Under the law, the pleadings in this case, and the facts as shown herein, the peremptory writ of mandamus ought to issue directing the respondent to file, read and consider the affidavit of Stephen L. Smith, and to approve and order filed as a supersedeas bond'herein the said appeal bond signed by the said relators as principals and said Smith, Houghton and Currier as sureties.</p> <p>(1) The St. Louis Circuit Court has the authority to adopt reasonable rules of procedure for the orderly conduct of its business. Mo. Constitution, art. 6, see. 27; Sec. 3859, R. S. 1909; Rigdon v. Ferguson, 172 Mo. 49. (2) The construction of Rule 40 placed upon it by that court, and giving to the person in whose favor an appeal bond is to be given the right to examine the proposed sureties as to their solvency, will be adopted by this court as the true construction. Mutual Life Ins. Co. v. Board of Assessors, 56 Mo. 510; State v. Fenly, 18 Mo. 445; 1 Elliott’s G-eneral Practice, sec. 189; State ex rel. v. Ellison, 267 Mo. 326. (3) The burden is on the proponents of an appeal bond to establish its sufficiency to the satisfaction of the court whose duty it is to pass upon it. 3 C. J. 1175 ; Hagerty v. Lierly, 109 Mo. App. 631. (4) An affidavit is inadmissible as evidence unless expressly authorized by statute. 2 Wigmore on Evidence, sec. 1384; Hudson v. Applegate, 87 Iowa, 605; Patterson v. Fagan, 38 Mo. 70; Hancock v. Whybark, 66 Mo. 672; Walsh v. Rogers, 13 How. 287; Pickering v. Townsend, 118 Ala. 351; Smith v. Feltz, 42 Ark. 355; Smith v. Weaver, 41 Pa. Super. 253; 2 Blackstone (Jones) p. 1983; 2 C. J. 373. (5) Rule 40 contravenes no law and is valid, and, as such, has the force and effect of law. Pelz v. Bollinger, 180 Mo. 252; Bank of Escondido v. Superior Court, 106 Cal. 43; Rigdon v. Ferguson, 172 Mo. 49; Brooks v. Boswell, 34 Mo. 474; 15 C. J. 904. (6) Mandamus does not ordinarily lie to control an inferior court iu the exercise of its judicial discretion. High on Extraordinary Legal Remedies (3 Ed.), p. 254; State ex rel. Hernán v. Fiad, 108 Mo. 614. (7) To pass upon the sufficiency of an appeal bond involves the exercise of judicial discretion, and unless it is charged and clearly shown by relators that the decision of the respondent is not in the exercise of good faith of the discretion vested in him, mandamus does not lie to compel him to accept the bond. State ex rel. Heckel v. Klein, 137 Mo. 673; State óx rel. Reifsnider v. Goldstein, 200 Mo. App. 60; Linderholn v. Walker, 102 Kan. 684, 171 Pac. 603; State ex rel. Hubbard v. Speer, 173 Pac. 955; United States ex rel. Beal v. Cox, 14 D. C. App. 368; 3 C. J. 1302. (8) The demurrer to the return admits all facts properly pleaded therein, inter alia that the proposed surety Smith has, prior to the hearing, become insolvent, and is hot sufficient to become surety on the appeal bond. State ex rel. Taylor v. Moss, 35 Mo. App. 441; Moses on Mandamus, p. 214; State ex rel. Witmer v. Conrad, 147 Mo. 654; State ex rel. Fitzpatrick v. Myers, 80 Mo. 601; 26 Cyc. 466.</p>

— Hon. Thomas J. Seehorn, Judge. (1) Substantial quantities of land both as to area and value that were required under the Charter of Kansas City to bear ratable shares of the cost of this grading have been omitted from assessment and charge, and so the burden on defendants ’ property has been materially and unlawfully' increased; and so the tax bills are excessive and void, (a) As to the definition of a block or square: Standard Dictionary; Century Dictionary; Gilsonite Co.…

<p>1. MONEY JUDGMENT: Equitable Proceeding. In an equity suit brought by a majority of the stockholders of a corporation against it and its president to recover from him money embezzled by its bookkeeper, a money judgment may be rendered against the president in favor of the company. [Distinguishing State ex rel. v. Foster, 225 Mo. 171.]</p> <p>2. EVIDENCE: Motion to Strike Out. If the answer is responsive to the question, a motion to strike it out, no objection having been previously made, comes too late.</p> <p>3. -: Removal of President of Corporation. A statement by the court that he could not select officers for the corporation and that if the president were removed the directors would have to choose his successor is a sufficient answer to a complaint that the court did, not permit an examination of the plaintiff directors concerning their capacity to act as president.</p> <p>4. LACHES: Stockholder. A stockholder of a corporation, who is not a director, is under no obligation to examine the company’s books for the purpose of ascertaining whether its bookkeeper has been embezzling its funds, and is not chargeable with laches in not discovering the fact sooner, but has the right to rely upon the directors and officers to conduct its business properly. .</p> <p>5. -: Director: Neglect of Duty. Where the president is manager and treasurer and in charge of the finances of a corporation and its principal stockholder, whether another director, who was simply Superintendent of the manufacturing plant, was guilty of laches in not discovering the embezzlement of a bookkeeper which had gone on through a series of years, depends on whether he neglected a duty the performance of which would 'have led to discovery or knowledge; and in this case it is held that he is not chargeable with neglect of duty.</p> <p>6. CORPORATION: Duty of Directors: Ordinary Care. For failure to perform their duties as such, directors of a~corporation become liable for corporate losses resulting therefrom. They are required to exercise the care that ordinarily prudent and diligent men would exercise under similar circumstances; but in determining the amount of care they should exercise, the restrictions of the statute and the usages of the business should be taken into account.</p> <p>7. -: -: Different Degrees of Care: Salary. The fact that some directors serve without compensation and others ’aró paid for their assumed duties is to be taken into consideration in determining whether they have exercised a proper care and 'watchfulness over the company’s finances. A higher degree of vigilance is required of the president of the company who is its treasurer and manager and undertakes the oversight of its business and its finances • and receives an adequate salary, to discover the monthly embezzlements of its bookkeeper through a series of years, than is imposed upon ah uncompensated director whose duties with respect to the finances arise solely from the fact that he is a director.</p> <p>8. -: -: -: Other Considerations: Neglect of Duty: Laches. Likewise the confidence that all the directors had in the bookkeeper, the fact that no suspicion was directed against him at any time during the many years he was embezzling its moneys, the continued great prosperity of the company, and the fact that it was not customary to have the books of a concern of its size examined by public accountants, are all matters to be considered in explanation of the failure of a director, who was a mere superintendent of the manufacturing plant and had no knowledge of books or accounting, to examine the books and discover the losses; ana the further fact that he knew that the president, who was also treasurer and business manager, had himself kept the books for three years, had then secured the bookkeeper whom he had known from boyhood, for fifteen years was in the office where the books were kept, had been assigned and paid to perform the special duty of caring for the finances of the company and made the custodian of its funds, and had presented an annual statement to the directors, should likewise be considered in determining whether said superintendent, as a director, exercised the care that an ordinary prudent and diligent man would have exercised under the circumstances; and when all these facts are considered, it is held that he did, and that he did not neglect any duty which would have brought him knowledge of the bookkeeper’s peculations.</p> <p>9. -: Treasurer: Neglect of Duty: Liability for Bookkeeper’s Peculations. The treasurer of a corporation, who was also its president and the manager of its finances, who signed checks on the company’s account, with blanks for the amounts unfilled and never compared the returned checks with the check-hook stubs, and did not discover or attempt to discover that the aggregate of the returned checks exceeded the amount of the approved accounts, though the total did exceed that amount each month for years — a practice known only to himself and the bookkeeper, who filled in the amounts in the blank checks — was guilty of neglect of duty, and is liable to the company for the amount of the resultant losses.</p>

Certiorari. (i) Sec. 2:240, R. S. 1909, is a penal statute designed to punish willful misconduct and negligence on the part of sheriffs in the performance of their official duties. It has no application to the acts of an officer, who in their performance, proceeds with care and with an earnest desire to do Ins full duty under the law. State ex rel. v. Nolte, 203 S. W. 956.

<p>Appeal from G-reene Circuit Court. — Hon. Arch A. Johnson, Judge.</p> <p>(1) The petition shows that the lands are not subject to partition and sale. The court erred in ordering the sale of all the lands as in cases of partition, because Sec. 2559, E. S. 1909, defining the estates subject to partition, limits the right of partition to cases where lands, tenements, or hereditaments are held in joint tenancy, tenancy in common or coparcenary. The dowress, before admeasurement of her dower, is not a joint tenant, nor a tenant in common, nor a coparcener. Her right rests in action only, and she takes in severalty. McClanahan v. Porter, 10 Mo. 462; Belfast Inv. Co. v. Curry, 264 Mo. 499; Waller v. Marclus, 29 Mo. 25; 2 Scribner on Dower (2 Ed.), p. 27; Jodd v. Ry. Co., 259 Mo. 239. An nnassigned dower right is not an estate in lands. Jodd v. Ry. Co., 259 Mo. 239; Weatherford v. King, 119 Mo. 58; Farnsworth v. Cole, 42 Wis. 403; Witthaus v. Schack, 105 N. Y. 322; Gooch v. Atkins, 14 Mass. 378; Greenleaf Cruise, chap. 3, sec. 1, note; 10 Am. & Eng. Ency.' Law (2 Ed.), p. 146; 5 L. R. A. 520, note; 14 Cyc. 961. And a mere dower right is not sufficient to sustain a petition for partition, at the instance of the dowress. Hnrste v. Hotaling, 20 Neb. 178; Ullrich v. Ullrich, 123 Wis. 175; Reynolds v. McCurry, 100 111. 356; Wood v. Clnte, 1 Sanfl Ch. (N. Y.) 199; Kissel v. Eaton, 64 Ind. 248; Kelsea v. Cleaves, 117 Me. 236; White v. White, 16 Grat. (Va.) 264, 80 Am. Dec. 706; 21 Am. & Eng. Ency. Law (2 Ed.), 1155; 30 Cyc. 189; Freeman on Co-tenancy and Partition (2 Ed.), secs. 456-431-432. (2) The act approved April 8, 1905, now Sec. 8499, R. S. 1909, containing a life annuity table, for estimating the present value of life interests, does not give the widow the right of election to require the owners of the fee to pay a gross sum in lieu of her dower, and the court erred in construing said section as- though it did give such right. It has been expressly ruled that the life tenant cannot maintain a proceeding for the sale of the latid in order to have the present value of his life interest computed and paid to him in cash. Atkinson v. Brady, 114 Mo. 200; Stockwell v. Stockwell, 262 Mo.-671; Hayes v. McRevnolds, 144 Mo. 354. (3) The prevailing rule is that, independent of legislative authority, the courts cannot, without the consent of the parties, allow a gross sum in lieu of dower. Herbert v. Wren, 7 Cranch. (U. S.) 370; Francis v. Garrard, 18 Ala. 794; Francis v. Hendricks, 28 111. 64; Bonner v. Peterson, 44 111. 259; Blair v. Thompson, 11 Graft. (Va.) 441; Jarrell v. French, 43 W. Va. 456; Ellguth v. Ellguth, 250 111. 214; Lee v. James, 81 Ky. 446.</p> <p>(1) Equity has jurisdiction of dower. 1 Pomeroy, Equity Jurisp. (3 Ed.) sec. 280; 4 Pomeroy, Equity Jurisp., sec. 1382; 5 Pomeroy, Equity Jurisp., sec. 6; 6 Pomeroy, Equity Jurisp., sec. 691; Menifee v. Menifee, 8 Ark. 9; 14 Cyc. 979; Devorse v. Snider, 60 Mo. 235. (2) The statute, R. S. 1909, sec. 8499, creates in the dowress a right to- have her dower computed in money, she being willing to accept a gross sum in lieu thereof. Dougherty v. Dougherty, 294 Mo. 228; Millard v. Beaumont,' 194 Mo. App. 79. The courts have permitted a dowress, at her own suit, to have her dower commuted to a gross sum, applying the tables of mortality in the computation, and have made the same a lien upon the whole estate. Dougherty v. Dougherty, 204 Mo. 228; Brown v. Brown, 35 Mich. 415; Hogg v. Hensley, 100 Ky. 739; Pitts v. Craddock, 39' So. (Ala.) 506; Carlin v. Mullery,, 83 Mo. App. 39;’ Gucker v. Kopp, 152 N. Y. Supp. 370. (3) There being no remedy provided by statute for the enforcement of this right, equity will supply the remedy, under the influence of the maxim, “Equity will not suffer a right to be without a remedy.” 16 Cyc. 133; Albany County v. Durant, 9 Paige (N. Y.) 182; Balch v. Beach, 95 N. W. (Wis.) 135. (4) Dower is a legal, equitable and moral right, favored in a high' degree by law and next to life and liberty held sacred. 14 Cyc. 885; Mandel v. McClave, 46 Ohio St. 407; In re Alexander,- 53 N. J. Eq. 96; Bishop v. Boyle, 91 Ind. 169. (5) Partition is a proper proceeding in which to assign dower, and also homestead, and the rights of the parties can be adjusted in this suit. Colvin v. Haven-stein, 110 Mo. 583; Weatherford v. King, .119 Mo. 58. (6) The uncontradicted evidence shows that the plaintiff is entitled to dower in all the lands described in her petition, and the decree of the court to this effect must be affirmed regardless of the validity'of appellant’s contentions that the decree is erroneous in ordering the lands sold for the purpose of paying her a gross sum in lieu of dower in kind.</p>

— Hon. Sterling II. McCarty, Judge. (1) The court takes judicial notice that Little Elver is a non-navigable stream and therefore the defendant holding a fractional quarter section of land to Little Eiver, owns to the thread of the stream. Wright Lumber Co. v. Bipley Co., 270’Mo.-121.

<p>1. POLICE DEPARTMENT: Tax for Maintainance: Statutory Direction. Tlie statute (Sec. 9779, R. S. 1909) by expressly declaring that the expense of the police department of Kansas City shall he paid “out of the next annual revenue of the city’’ plainly excluded the implication of an intention to confer authority upon, the city to levy a special state tax for the purpose.</p> <p>2. -: -: State Obligation: Maximum Bate. Notwithstanding a metropolitan police department is a state institution and an integral part of the general means used hy the State to preserve peace and security within its domain, and is not a mere municipal system established for a local purpose, the Legislature may lay the burden of supporting it upon the city and require its expenses to be paid out of the city’s annual revenues, and the city in carrying out that injunction cannot exceed the maximum rate of taxation limited by the Constitution, either in the form of a general municipal tax or in the form of a special state tax; and where the city has levied other taxes equal to the maximum constitutional limit, it cannot legally levy an additional special tax of two mills to pay the expenses of the police department, but those expenses must be paid out of its general revenues.</p> <p>3. -: -: Maximum City Tax. Cities cannot exceed, for any purpose, the limit of taxation fixed hy Section 10 of Article XX of the Constitution, for that section says that the rates mentioned “shall apply to taxes of every hind and description, whether general or special,” except those levied to pay past indebtedness.</p> <p>(t. -: -: General and Particular State Tax. The State having levied the maximum tax of fifteen cents on the hundred dollars’ valuation for general state purposes, is restricted hy the Constitution from levying a higher rate either for general state or special state purposes, and likewise is the city prohibited from levying a further state tax for a local state purpose; and the contention that the limit prescribed by Section 8 of Article X, applies only to the rate for general state purposes when laid on property throughout the State, and does not restrict the power to lay more taxes for a particular state purpose which immediately affects one locality and falls exclusively upon the property therein, cannot he allowed, for two reasons, first, because the legislature has no power to levy any such special or local state tax, and, second, it has not attempted to do so, or to empower the city to levy it.</p> <p>5. -: -: -: Levy As Incident of Obligation: Ex Necessitate. The plea that as the Legislature laid on the city the obligation to defray the expense of its police department and as money to do that can he obtained only hy a new tax, the power of the city to lay a special tax for the purpose in excess of the constitutional maximum limit goes with the obligation as an incident and ess necessitate, cannot he allowed, for the reason the statute required the expense to he paid “out of the next annual revenue of the city,” and therefore the asserted power did not go as an incident.</p>

Appeal, from Montgomery Circuit Court. — Eon. E. 8. Gantt, Judge. (1) The evidence shows clearly that the property in suit, was the homestead of Solomon Ensley and his wife, Rebecca Ensley. He died April 30, 1896. The Homestead Law of 1895, page 185 was in force at the time of his death, and is the same as Secs. 3613, 3620, R. S. 1899.

Louis City Circuit Court. — Hon. Karl Kimmel, Judge. (1) Upon the case made, the plaintiff was not entitled to recover and the trial court erred in not giving the instruction to find for the defendant. (2) The circuit court erred in refusing to admit evidence of the agreement between the defendant bank and I. W. Avitt, under which the loan of eight thousand dollars was made.

Louis City Circuit Court. — Hon. Thos. C. Hennings, Judge. (1) Estoppel applies under the facts and circumstances here. Plaintiff is but the creditors and they waived their rights, elected to forego pursuing the rights they waived and are now estopped to hold these defendants. It would be a double burden on them. 2 Cook on Corporations, sec. 548, p. 1616; Brooks v. Brooks, 174 Pa. St. 519; Daugherty v. Poundstone, 12:0 Mo.

<p>Appeal from Jackson Circuit Court. — Hon. Allen G. Southern, Judge.</p> <p>(1) There conld be no recovery in this case for vexations delay and attorney’s fees. This was a Texas contract, and the penalties imposed by onr statute do not extend to the obligations of a Texas contract. Thompson v. Traders Ins. Co., 169 Mo. 12. (2) In an ordinary life insurance policy the beneficiary named in the policy becomes the owner of it the moment it is issued, and the person procuring the insurance cannot by any subsequent act of his, transfer to others the interest of the beneficiary. Splawn v. Chew, 60 Tex. 534; U. S. Casualty Co. v. Kacer, 169 Mo. 301; Blum v. N. T. Life, 197 Mo. 522. (3) The debt of Kennedy to the bank, to secure which Agnes Kennedy pledged the policy, was barred by Statute of Limitations before her death, and the policy was released from liability. The mere physical possession of the paper gave the bank no rights in it. Cheves v. Anders, 87 Tex. 287 ; 2 Briefs on Insurance Law.by Cooley, 1112. (4) Plaintiff, being a national bank, could neither purchase this insurance policy nor loan money on it. It possibly might hold it to secure the past indebtedness of $1,034.61, if this debt had not been barred by limitation, or the time of payment extended, or the debt canceled and the security thereby released. First Nat. Bank v. First Nat. Bank, 92 Atl. 1076, 247 Penn. 44; McBoyle v. Union Natl. Bank, 122 Pac. 458, 162 Cal. '277. (5) The debt for which Mrs. Kennedy pledged the policy being barred by limitation during her life, the security became released by act of law, and the bank could not sue on the policy. R. S. 1909, sec. 1892; Washington Life Ins. 'Co. v. Gooding, 19 Tex. Civ. App. 490, 49 S. W. Rep. 123; Vernon’s Sayles’s Statutes of Texas, art. 5688. (6) Where the wife assigned a policy to secure the debt of the husband the policy stands in the relation of surety for the debtor, and an extension of time or renewal of the note, without the consent of the wife, released the policy. Allis v. Ware, 28 Minn. 166; 27 Am. & Eng. Ene. Law (2 Ed.), 433; Brant on Suretyship & Guar., secs. 21, 22. The burden would be on plaintiff to show her consent. Touhy v. Woods, 122 Cal. 665; Same case, 55 Pac. 683; Okey v. Sigler, 47 N. W. 911; Same ease, 82 Iowa, 94; United States v. McIntyre, 111 Fed. 590. (7) The reply admits that Kennedy signed the note or certificate of loan pleaded in the answer. A party cannot traverse and at the same time confess and avoid. In this respect the reply is ambiguous. Cable v. McDaniel, 33 Mo. 363; Bliss on Code Pld. (2 Ed.) secs. 317, .332; Bredell v. Alexander, 8 Mo. App. 110; Barrett v. Donnelly, 38 Mo. 492; Adams v.'Trigg, 37 Mo. 143. The contract of the bank with Kennedy, was against public policy and void. “ Public policy will not recognize the transfer of a life policy of insurance to another whose interest is involved in the early death of the .insured.” Price v. Supreme Lodge, 68 Tex. 361; Tripp v. Jordan, 177 Mo. App. 339 ; Heusner v. Ins. Co., 47 Mo. App. 343; Ins. Co. ,v. Richardson, 99 Mo. App. 93; Bruer v. Ins. Co., 100 Mo. App. 627; Jenkins v. Morrow, 131 Mo. App. 288. (8) The petition does not allege facts which show that the insurance money was due. Shaver v. Mercantile Town Mut., 79 Mo. App. 420; Wanschaff v. Masonic Ben. Assn., 41 Mo. App. 206.</p> <p>(1) Plaintiff was entitled to recover attorney’s fees under Sec. 7068, R. S. 1909. (a) Defendant says it was a Texas contract. Regardless of whether it was a Texas, New York or Missouri contract, there was no pleading or proof that the laws of Texas were different from Missouri, and in the absence of proof it will be presumed that the laws of another state are the same as the laws of the forum. Shelton v. Railroad, 167 Mo. App. 404; Gibson v. Railroad, 225 Mo. 473; Warren v. Lusk, 16 Mo. 102; Selking v. Hebei, 1 Mo. App. 340; Bergner v. Ry. Co., 13 Mo. App. 499; Silver v. Ry. Co., 21 Mo. App. 5; McDonald v. Ins. Co., 154 Mo. 618; R. S. 1909, sec. 7068; Thompson v. Ins. Co., 169 Mo. 12; Stix v. Ins. Co., 175 Mo. App. 171; Coscarella v. Ins. Co., 175 Mo. App. 130. (b) This being a life insurance policy executed by a New York Company in New York upon the life of a man then living in Texas, and sued upon in Missouri, the laws of Missouri are applicable. Beneficiaries in life insurance policies providing for change of beneficiary do not obtain such a vested interest that it cannot be ousted. (2) Mrs. Kennedy joined in the assignment of this policy, the policy provides in case of her death it shall be payable to A. G. Kennedy’s estate, and she was dead long before this policy matured or suit brought. 25 Cyc. 892. Even if the debt was barred this defendant could not raise the point. It is a personal •one, and if A. G. Kennedy did not want to avail himself of it this defendant could not avoid its just debts in such a manner. Columbia Ave. Sav. Fund Co. v. Strawn, 93 Tex. 48. (3) Plaintiff did not buy the policy sued on, nor did it loan money on it; it did not violate any national bank act. It had a perfect right to take an assignment of the policy as collateral security for its past due debt, and then in order to protect its security had a right to pay the premiums. This is all it did under the testimony. McBoyle v. Union Natl. Bank, 122 Pac. 458; 5 Cyc. 591. Even if it had bought the policy, or loaned money on it, this defendant could not raise that question. First Natl. Bank v. Wilson, 165 Pac. 859; Merchants Natl. Bank v. Weston, 168 Pac. 587 ; 5 Cyc. 590; Wherry v. Hale,' 77 Mo. 20; Thornton v. Natl. Exchange Bank, 71 Mo. 221; Matthews v. Skinker, 62 Mo. 329. (4) The reply does not admit that Kennedy signed the so-called note, but expressly denies it. Even if the reply was ambiguous it is too late for plaintiff in error to complain now, and it could cut no figure in this case.</p>

— Hon. W. T. Ragland, Judge. (1) The will, as clearly expressed on the face thereof, shows a definite intention by the testator that the title was' not to be vested in the children until the death of the executrix, for he says: “And at her death I will and devise, that all my real estate- shall go and vest absolutely in fee in my seven children equally, share and share alike.” Buxton v. Kroeger, 219 Mo. 224; St. Louis B. L. Assn. v. Fuller, 182 Mo. 93; Hardy v. Clarkson, 87…

— Hon. L. B. Wood-side, Judge. (1) It cannot be successfully claimed that tbe plaintiff bas any advantage as an innocent purchaser; for tbe following reasons: (a) Being an innocent purchaser must be affrmatively pleaded.: so also must it affirmatively be proved: tbe onus lies on tbe pleader. Young v. Schofield, 132 Mo. 663; Holdsworth v. Shannon, 113 Mo. 525; Conn. Mut. Ins. Co. v. Smith, 117 Mo. 293; 22 Ency. PI. & Pr. 734; 23 Am. & Eng. Ency.

<p>1. CEMETERY: Sale. The statute (Sec. 1307, R. S. 1909) does not prohibit the voluntary sale of property belonging to a cemetery association to another association , of the same kind and maintained for the same purpose.</p> <p>2. '-: -: Equitable Title. If the deed from the owner of land to named persons as stockholders of a cemetery company provided how the lots should be conveyed, and the grantees accepted the deed in that form, recorded it, elected a president of the company, sold the property to another company of the same kind and maintained for the same purpose, conveyed the same to it in accordance with the terms of the said deed and put it in possession of the premises, the grantee acquired, in any event, an equitable title to said property, and in a suit by said original grantees or their successors against it to quiet title it is entitled to a decree accordingly.</p> <p>3. -: Statute of Frauds: Executed Sale. If the grantee is put in possession of the cemetery property upon delivery of phe consideration (a perpetúal-eare bond), according to the terms of the • isale to it, the Statute of Frauds does not invalidate the sale.</p> <p>4- -: Voluntary Sale: Cancellation. Where a cemetery association, for the first year after a conveyance of an established cemetery to it and after it took possession, carried out its agreement according to the terms of its perpetual-care bond, which was the sole consideration for the conveyance, but ¡thereafter failed to comply with its requirements, the conveyance, absolute on its face, cannot be cancelled if the bond contained no provision declaring the deed to be void, and none for re-entry for failure to comply with its terms, and'' neither it nor the deed contained ■any condition subsequent or other provision for a cancellation of the conveyance for the grantee’s failure or refusal to care for the cemetery.</p> <p>5. -: Deed of Trust: Commercial Uses: Cancellation. After the sale and conveyance of a cemetery to another cemetery association, the grantee issued its bonds and secured them by a deed of trust to a trust company, which had both constructive and actual notice that many of the lots containing the remains of deceased persons had been conveyed by recorded deeds, and the deed of trust did not purport to have been given to secure funds for the improvement and repair of the cemetery Held,- that, the statement of facts and the prayers of the pleadings authorizing it, the deed of trust was invalid and will be cancelled, since a foreclosure thereof would either cast a cloud upon the rights of those whose relatives are buried in the lots, or would divert the property from its original public use as a burying ground and convert it to commercial uses.</p>

— Hon. B. A. Breuer, Judge. (1) The demurrer is not well taken. The history of the statutes, as to death by wrongful act, shows the legislative intent to create a right of survivorship in this plaintiff, and such history should be considered in interpretation of the present law. Johnson v. Railroad, 196 U. S. 17; Macke v. Byrd, 131 Mo. 682; Greely v. Railroad, 123 Mo. 157.

Mandamus. (1) There is no statute providing for the time of holding special elections in city, town or consolidated school districts.

<p>1. INTERSTATE SEWER: Legislative Rower. As far as authority can he predicated upon state and municipal legislation, Kansas City has been invested with power to establish a joint sewer district and to co-operate with public corporations in the State of Kansas for the construction of Turkey Creek Sewer and the extension of it beyond the city and state lines to the Kansas River as its outlet, and to pay for the same by special tax bills levied against the lots of land within the joint sewer district.</p> <p>2. -: Limitations Upon Municipal Action: Judicial Notice. The only limitations upon the right of a city in the exercise of its charter powers to establish sewer districts and provide for the construction of sewers therein are that .acts or ordinances in furtherance of said powers shall not be creatures of fraud, whim or caprice, or in violation of common right, or impose a burden on the citizen or community without corresponding benefit. The courts recognize the public necessity oi sewer systems for municipalities, take judicial notice that they promote the public health, elevate the moral tone of the people -and encourage right living, and do not interfere with a reasonable exercise of the discretion vested in the municipality to act.</p> <p>3. -: Joint Sewer District: Special Tape Bills. Kansas City has charter power to establish a joint sewer district composed of 144 existing districts, embracing one-eighth of the city’s area, hot embracing therein any land which is not within the natural drainage area of the valley or watercourse in which the joint district sewer is to be constructed, and the City Council has the discretion to require that the entire cost of construction shall be paid by special tax bills against the lots therein.</p> <p>4. —-: -: Benefit: Legislative Matter. The question of whether the lots in a joint sewer district will or will not be benefited by the construction of a sewer is a legislative and not a judicial question; and the municipal legislature having determined that they would be benefited, and fixed the ratio of such benefit, and there being no question of fraud or oppression in the enactment of the ordinance, and the proceedings being regular and in conformity with the charter, its determination is conclusive.</p> <p>5. --: Outlet in Another State. An outlet to a sewer is necessary, and where the legislatures of 'two adjoining states authorize it, the city may provide for its outlet outside of its corporate limits and extend the sewer beyond the state line- into the other state, and provide for the emptying of the sewage into a river in that state.</p> <p>6. -: Drainage of Area of Another State: Dominant and Servient Estate. The ordinance provides for a joint sewer district of 4762 acres situate in Kansas City and in tlie watershed of Turkey Creek, and for the construction of a joint district sewe.r of sufficient size to receive the entire volume of water carried by this stream in flood time. Adjacent to. the proposed district and across the state line in Kansas is the City of Rosedale, which is afforded drainage in part by the natural channel of said stream, which has its source in Kansas; and if the channel is destroyed, as is contemplated by the construction of the proposed sewer, that city will be deprived of any means of disposing of its sewage. To meet the situation, the plan of construction provides for inlets to the- joint district sewer for the drainage of an area of 250 acres in Rosedale, and it is contended that the increased*‘capacity of the sewer, made necessary. by providing drainage for said Rosedal area, is unauthorized. Held, that the Rosedale area is the dominant estate, and the Kansas City area drained by the creek is the servient estate, and it is elementary that the servient owners must suffer the consequences of the unrestricted flow of drainage onto their lands from the dominant estate, and the enlargement of the sewer so as to provide for inlets which drain said dominant estate is authorized.</p> <p>7. -: Pumping Stations: Implied Power. The cost of pumping stations, necessary to force the sewage and water from the' low-level sewers into the main pressure sewer, in times of high water in the river into wbich it has its outlet, thereby preventing the water from hacking up into basements of buildings,' etc., may be assessed against the lots in the joint sewer district as a part of the cost of the sewer, under the provision- of the charter which provides that “the city may construct and maintain sewers, drains and all works necessary for the disposition of sewage and garbage.” While the charter does not' expressly mention pumping stations, their necessity being conceded, the power is necessarily implied from those thus expressly given.</p> <p>8.. -: -: Part of Sewer. Necessary outlets, pumping sta- ■ tions, local laterals, extensions and connections are as much a part of a sewer system as manholes, catch basins and other appliances, and can be paid for imthe same way as other portions of the sewer.</p> <p>9. -: Laterals in Lowlands. Although the low lands in the valley are already equipped with sufficient lateral sewers discharging into the creek, if in the construction of a main pressure sewer to carry the entire volume of water of the creek and watershed the usefulness of many of them will be'destroyed and they must be reconstructed so that when the water is high in the river it cannot flood basements and the low lands, they are no longer local lateral or district sewers, hut a part of the entire' system being installed, and made necessary by the changed conditions, and should he paid for in the same way as the main sewer, by the issuing of special tax hills upon the lots of the district; to compel the low lands to pay the entire cost of their construction and extensions, would result in the imposition of unequal burdens upon them.</p>

Mandamus. (1) The Jackson County Circuit Court had jurisdicton of the petition for review herein, (a) Section 127 of the Public Service Act requires that “the provisions of this act shall be… Held: and that they may be held at different places in the State, to suit the convenience of the parties to the controversy as well as the commission.

Certiorari. (1) One who is a foreman and authorized to direct the work of a servant who is injured is a fellow servant as to acts not involving the exercise of his authority as foreman, and in doing an act- which is the work of a co-laborer with the injured servant, negligently, thereby causing the injury, does not render the master liable. McIntyre v. Tebbetts, 257 Mo. 157; Fogarty v. St. Louis Transfer Co., 180 Mo. 490; Stephens v. Lumber Co., 110 Mo. App. 405.

— Hon. J. G. Slate, Judge. (1) The court erred in not sustaining appellants’ demurrer to relator’s amended petition on the ground that said Henry J. Westhues, as Prosecuting Attorney of Cole County, has no legal authority in law to bring this action in the name of and on behalf of the State.

<p>1. WILL: Construction: Oral Testimony. If the language of a will is susceptible of two constructions, evidence of testator’s feeling towards a legatee may be admitted which will enable the court to put itself, so far as may be, in the testator’s place, that the words used may be read in the light of his environment at the time the will was executed. By the admission of such evidence" . no violence is done to the rule that a testator’s intentions are to be ascertained from the will itself.</p> <p>2. -: -: -: Spendthrift Trust: Condition Under Which Created: Precedent or Subsequent. By his will the testator devised and bequeathed one-third of the residue of his property to a trustee with power to handle and control the same and with specific directions to the trustee to turn over to a son a designated portion of the income during his lifetime, with the condition added that “if, at any time during the lifetime of my said son, he shall of his own free will and desire have passed five consecutive years of continued sobriety and good behavior and shall establish such fact to the satisfaction of said trustee, then the latter, namely, said trustee, shall declare said trust to be at an end and thereafter convey, transfer and pay over to my said son all the trust property and estate then held or possessed by it as such trustee, and such trust shall thereupon terminate.” Held, that extrinsic evidence showing that the will was made after repeated fruitless efforts by the testator to reclaim said son from his weakness for intoxicating drink, that the demoralizing effect of drunkenness had persisted during the son’s young manhood and that he was still less than forty years of age at the time of testator’s death, is competent for the purpose of aiding the court to determine whether the condition upon which the trust was created was precedent or subsequent; and where the will further gave the trustee power to sell and reinvest, mortgage or pledge, or to anticipate the income or any installment to be paid the son, and declared that the son should, have no power to dispose of any of the property and that neither the principal nor income should be liable for his debts, present or future, and the trustee’s title was to be divested only upon the son’s reformation or death, the compliance of the son was a condition precedent to the establishment of his right to the trust property. The son took no estate, but a mere interest in the income, and his interest therein was in the nature of a gift or donation.</p> <p>3. TRUST ESTATE: Power of Corporation: Devisee. Under the statutes a trust company may hold devised property in trust, execute such trust in conformity to the declared intentions of the trustor or testator, act as executor and trustee, be granted letters testamentary, and generally, act as trustee or in any other fiduciary capacity in the manner provided by law for the appointment of an individual to such office.</p> <p>4. SPENDTHRIFT TRUST: Power of Corporation to Terminate. Since the law has clothed a trust company with power to exercise the functions of a trustee, including the possession, care, custody and disposition of devised property, it is possessed of the consequent power, within the terms of the will, to determine whether the prescribed condition upon which a spendthrift trust is to terminate has been performed.</p>

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1)' The trial court erred in setting aside the verdict of the jury and granting the respondent a new trial herein. A party offering in evidence what it claims is a memorandum in the handwriting of a witness without first having given the witness an opportunity to explain the memorandum or to testify as to its genuineness is not entitled to have such claimed memorandum go before the jury.

<p>1. - CORPORATION: Dissolution: Appeal. A proceeding for the dissolution of a corporation, brought by it against dissenting stockholders, in which evidence is heard and considered, is a civil action, involving the exercise of judicial power, and from a judgment of dissolution an appeal is not prohibited by the Constitution, and such dissenting stockholders are, therefore, under the statute, entitled to appeal.</p> <p>2. -: : -: Final Judgment. A judgment by which the court adjudges and decrees that the corporate charter and franchise of a corporation be surrendered and cancelled, that its corporate existence be forever ended and that its officers as statutory trustees take charge of its assets and affairs and administer them, is a final judgment, from which an appeal lies.</p> <p>3. -: -: -: Aggrieved Party. Appellant is not required, in order to be entitled to an appeal, to establish that his legal rights have been prejudiced by the judgment. The statute merely requires the affiant to state in the affidavit for an appeal that he “believes” the appellant is “aggrieved” by the judgment.</p> <p>i.--: -: Pleading: Petition Only. Although the statutes pertaining to the dissolution of a corporation provide for no pleadings except the petition, the code procedure is available for presenting in an orderly method issues of law or fact.</p> <p>5. -: : Civil Action: Legal or Equitable. The nature of the issues determines whether the civil case is an action at law or a suit in equity. A suit to dissolve a corporation, brought by the company against dissenting stockholders, in which is involved the creation and administration of a trust and in which the corporation pleads estoppel in pais against the minority stockholders, is a suit in equity, because the issues call for equitable relief.</p> <p>6. ---: : Estoppel: Knowledge: Inactivity. Estoppel in pais does not arise from notice and inaction alone. A stockholder is not estopped to deny the legality of an attempted dissolution of a corporation by the fact that he knew a majority of its stockholders were scheming and planning to purchase its stock with the stock of another, and took no steps to stop them. The fact that some of the. stockholders exercised their right to sell their stock and are making no complaint, and that, the other company bought certain shares, it being neither alleged nor proven that it lost by the investment, does not affect the right of the dissenting stockholders to question the attempted dissolution..</p> <p>7. ---: -: -: Elements. To constitute estoppel in pais there must have been (a) false representation or concealment of material facts, (b) made with knowledge of the facts, (c) to a party ignorant of their truth, (d) with the intention that the other should act upon it and (e) such other must have been induced to act upon it; and to be available it must be alleged and proven that such other has been misfed to his hurt.</p> <p>8. -: -: Discretionary Right: Stock in Another. The statute (Sec. 2996, R. S. 1909) declaring that a “corporation may be dissolved by a judgment or decree of the circuit court” upon the • adoption of a resolution by “the stockholders holding two-thirds in value of all the shares' of stock” does not give to a majority of the stockholders an absolute right to a decree of dissolution, nor does it confer upon a minority an absolute power to prevent dissolution. Nor does said statute vest in the majority a right, under color of dissolution, to compel the minority to take stock in a new corporation in lieu of their stock.</p> <p>9. -: -: Fixing Price of Stock. A majority of stockholders of .a corporation, desiring dissolution, do not have the right to fix the price of the stock of the dissenting stockholders, or to compel them to accept it. The stock belonging to them is their private property, and private property (with certain constitutional exceptions) cannot, without the consent of the owner, be taken for private use by any majority, however great, nor by the payment of any price, however large.</p> <p>10. -: -: Consolidation With Another: Payment in Stock. Where the purpose of the majority of the stockholders of a solvent lead-mining corporation is to effect a consolidation with another, and to effect the consolidation by issuing to all the stockholders stock in the other on fair terms, or to pay to those who will not come in a fair value for their shares, dissolution cannot be effected against the consent of dissenting stockholders. That would not be a real dissolution, but only a pretended dissolution. Minority stockholders cannot be compelled to surrender their stock and accept stock in another company in lieu of it; nor can they be compelled to sell their stock, or to surrender it for money, except upon a real dissolution, which, under the statutes, implies a sale of the assets, the payment of its debts, and the distribution of the proceeds among the stockholders.</p> <p>11. -: -: -: Mining -Company. A lead-mining corporation, even by unanimous action of its stockholders, cannot effect a consolidation with another lead-mining corporation by selling all its stock to the other and then dissolving itself. The statute (Sec. 3360, R. S. 1909) declares the public policy of the State and limits the right of consolidation to corporations organized solely for manufacturing purposes, and a lead-mining company is not such a corporation. And the rule is the same where the company seeking to dissolve itself and to consolidate with the other is a domestic corporation and the other is a foreign corporation.</p> <p>12. -: -: Good Faith. The proceeding to dissolve a corporation must be in good faith, by which is meant that the dissolution must be intended to culminate in a cessation of corporate life and the distribution of its assets. Good faith does not involve an inquiry into the motive, but it does imply an inquiry into the purpose of the proceeding, as to whether that purpose is the one contemplated by the statute. An attempt by the stockholders of one company, who are stockholders and officers of another, to have the one absorb the other and thus bring about a consolidation of the two, for the purpose of lessening the amount of income taxes whose payment a separate existence makes necessary, by the indirect method of dissolving the one to be absorbed and issuing to its stockholders-the stock of the other, is not a proceeding in good faith for dissolution. Such a proceeding is an attempt to use the law of dissolution as a law of consolidation, and is not therefore in good faith.</p> <p>13. -: -: Status Quo. The difficulty or impossibility of restoring the status quo ante, if brought about by an attempt to wrest the law from its purpose, and to violate its spirit while professing to observe its letter, does not commend itself to the indulgence of courts, or deserve their assistance.</p>

Habeas (Corpus. (1) All statutes for the assessment and collection of revenue must be strictly construed. State ex rel. v. St. Louis Co. Ct., 13 Mo¡ App. 54; Fowler v. St. Joseph, 37 Mo. App. 238; State ex rel. v. Railroad, 87 Mo. App. 236; State ex rel. v. Hopkins, 87 Mo. App. 519; State ex rel. v. Atchison, 173 Mo. App. 164. (2) Where a statute is penal in its character, it should be strictly construed’. Fowler v. St. Joseph, 37 Mo. 238.