*1 is, while his servant toward duties master’s any of the perform duties', no fellow-servant respect such to' continues relation 554; 15 S. W. 570, 575, 103 Mo. Railroad, v. [Dayharsh the latter.” seq., 107 S. 157, et Co., 209 Mo. v. Louis Car St. also Koerner see W. 276 S. Baking Co., 310 & 481; Grocery v. W. Bender 405.] respect that, negligent if Puckett follows to the hand- negligence plaintiff’s-

ling of door and that such caused injuries, show, respondent tends to all which the evidence is liable. reached,

In view the conclusions the action the trial court reversed and the cause remanded with should be directions to that involuntary plaintiff nonsuit and set aside the award a new All trial. It is so ordered. concur.

Billings Special Road District County, Appellant. v. Christian (2d) W. 378. S. One, April 11,

Division *2 appellant.

Omer E. Broten for

Page cfi respondent. Barrett for

LINDSAY, C.—This is a suit road district recover moneys alleged to have been collected as for taxes road and purposes property within the district. moneys first count asks year collected for the

1922, and *4 as follows: was, “Plaintiff states is and at all mentioned times-herein Missouri, special County, organized road of district Christian and existing Chapter Article of of the Revised Statutes of Missouri, political and that the defendant subdivision of capable suing the State Missouri and are sued such. “Plaintiff for herein, its first count and cause of action states that through defendant, by duly officers, the reg- at constituted the May by duly term, record, ular its order entered' levied and property, real, mixed, caused to be levied on all personal, County, Missouri, year Christian tax for the ten cents on valuation, designated levy $100 said ‘Bridge Tax Levy’ County and that the said Christian collected and caused to be levy. pursuant collected said taxes to said by levy “Plaintiff further that- under and states virtue said by property collected the defendant within Missouri, the County, Christian Billings Special Road District said $1480.06; requisition, and demand timely claim, sum of by com- writing money duly properly made sum Billings Special Road District of Christian missioners of the neg- failed, county has defendant ever and that the said Missouri, and to issue. lected, requisition and demand and refused to honor said levy from the aforesaid payment funds derived warrant Christian Billings District of property Special on within the Road County, Missouri. disregarding county, defendant

“Plaintiff further states that diverted, and dis- requisitions spent, aforesaid, has the'demands and may they are sipated not now where funds, said and that same lawfully distributed. against defendant “Wherefore, plaintiff prays expended, and interest herein $1480.06, sum of and its costs date of demand.” moneys year in the in the count is for collected second first count. $1368, as the and is the same form sum overruling the petition, of its demurrer defendant, after the which is as answer, follows: filed petition answer to the defendant and for now the

“Comes plaintiff says that: de- legal capacity to sue the plaintiff

“1. herein has no That the says alleged and further that the petition, for the tax fendant designated tax as the that the tax so levied was’unconstitutional of taxes due 'Bridge Levy’ is extraneous of amount Tax tax further Defendant states district law. road expended has therefrom been derived collected or revenue bridges this preceding on the Christian and the the court. discretion of at the answering says plaintiff’s in answer to

“2. further Defendant brought and after alleging before action was said this petition, duly accrued, through its con- any, if this defendant of action cause accepted same, who plaintiff, officers delivered to stituted within said (cid:127)twenty-five every dollars of valuation hundred cents and the ten-cent tax being the fifteen-cent tax Special District, Road discharge full value in satisfaction together, of both aforesaid Special Road District money due the amount county. defendant ‘‘ answering the revenue for states 3. Defendant further brought suit is collected which this *5 demanded, pro- legally or, no that was never 1923, and same

1922 and and filed in the tax was collected were ever tests allegations estopped iñ plaintiffs these are that now and petitions. their having fully

“And now answered pray herein defendants discharged with their costs.” a reply plaintiff The was denial. The had on petition both of the counts and defendant ivas appeal. allowed an Preliminary respondent to a discussion of the merits, counsel brief that appellant assignment errors; their contend no makes of bill exceptions; that there is no of that there is a no motion for new trial set out in a bill exceptions, of and no ap- that there is index to pellant’s assignment abstract. There of errors, is and there is no appellant, to the abstract intermingles of which index of statements of exception, points matters and of record, authorities, testimony and printed argument. and form, narrative a appeal ordinary The is not here under the transcript short of form authorized 1919; Section Revised Statutes nor is a complete transcript. appellant filed typewritten has here entries, transcript beginning entry of all record showing with the filing of ending entry showing defendant’s answer and with the allowed, within exceptions duly signed the time its bill of was judge, part trial and filed and transcript made of the record. The entry closes with this exceptions. does not set of forth the bill proper is no commingled There abstract of record. abstract by appellant opens and brief filed with a statement of the nature and purpose suit, of statement certain facts found in record, gives why certain objecting reasons defendant to the payment begins asked. the sums The abstract then with statement forth; filing petition petition, and the is set then states filing of a demurrer petition, overruling, filing to the answer, filing forth, plaintiff’s reply. defendant’s which is set heard, interposed It then states evidence was and the.defendant overruled, which evidence, exceptions demurrer and ruling of the court were then and there Then saved. follows entry judgment, statement followed statement that on day trial, the same defendant motion for a new filed motion out; is set the motion was overruled defendant saved ex- day ceptions; arrest, filed a that on the same defendant motion saved; exceptions and, day, which was overruled same granted. appeal appeal affidavit for filed There then follows the and: properly exceptions filed, signed bill statement that Following that, part and made a the record. and sealed statements ci- the head and Authorities” are certain “Points Thereafter, following, next thereunder. tations authorities three witnesses. brief statement in narrative form of the exhibit, first an written one Embodied statement of commissioners of the by demand board

969 district, road for a warrant for the funds the the hands of Following Treasurer. the statement form the testi- narrative of mony witnesses, printed argument. is a short urge exceptions

Counsel for defendant of that is bill only question that the is such as is whether or not the could upon have been pleadings. entered the It is issues made signed by contended that since exceptions the bill of must be judge, trial setting signed, proper out in that it was so the record Watts, is Cooper 684, not sufficient. v. v. 162 Mo. and State Maloney, 494, pertinent controlling, Mo. are not or cited. Those cases are particular ruling presented, situation of this here under court, bane, en Trimble, ex v. that State rel. 532. Under ruling signed exceptions that filed, statement bill was of part made of the record is as to there was a bill sufficient the fact that exceptions of signed by which was judge; the trial but trouble appellant’s abstract it the bill of here is that does not abstract exceptions purport exceptions itself. It bill does not to abstract a of which contains the motions for a trial arrest overruled new to; and excepted nor that does it even statement contain the short narrative of the witnesses is embodied of the three in a bill exceptions. Trimble, of In ex v. reference State rel. supra, opinion J., made dissenting in Williams v. of Trimble, City Railway 134, etc., which, Kansas Terminal l. c. it Co., S. W. said, reached correct conclusions a record similar to (cid:127) then Judge consideration this court. observed Trimble consisting during exception, document matters of taken progress exceptions until is case, does a bill of not become signed by judge, proper but where the abstract the record shows that this done, copying signature has been óf his into the abstract necessary of the bill is the bill has not to' show that been signed. He if that, then 134“ added, c. no doubt true even proper signed the abstract of bill the record recite that the does yet, filed, if such abstract followed proper of the record not by any exceptions, appellate bill cannot abstract 'the court consider exception, matters of but abstract of this would be because no presented abstract, the bill had printed been because signed.” the bill In itself was not shown to have been abstract, transcript sufficiently case the well, assert signing exceptions of a bill filing; appellant has and its but failed to abstract the bill of exceptions. provisions

Under the of Section Revised Statutes appellant printed the entire record” "file abstracts of exceptions becomes, is, the cause. bill part and. (cid:127) record virtue of our Rule By the order of the court. such necessary abstract must “'set forth as is so much of thé record ’’ decision, presented for questions complete understanding all the in the dis necessary consulted and “so much of the as is record assignments of error position assigned are no errors.” There us, there before and brief abstract appellant’s brief. In the combined exceptions was statement, the bill is inserted between *7 narra short record, and the signed part filed and made “points as designated, witnesses, testimony what tive of the of three and authorities” as follows: AND Authorities.

“PoiNts dis road in special tax money “Where derived from a not entitled district is year levied, held trict is not in the demanded 249 Pemiscot Special to it. Road District Little Prairie v. S. W. l. c. 600-601. 589; 206 Mo. 205 Mo. right allege thing used for. “Must for the

n 334. by petition alleging “Plaintiff states himself out of court his years money, spent City for the 1923. Kansas and. Railway Company Thornton, 570, p. v. 152 Mo. 247 S. W. twenty-five “Road district cannot demand than more cents and no for part. tice more than that would-be void as to that 1913, Laws p. 67!5, 1, Special sec. ‘Funds Entitled, be used in Districts— to apportionment.’ twenty-five-cent levy per These notices demand 1913, p. 675. Section Laws no is made for Hence notice the ten- levy. 1913, p. unconstitutional 675.”' .cent Laws n respondent appeal, Counsel have not asked dismissal of the but nothing insist but proper is to be considered the record and ask affirmance thereon. theory brought

The action is one on the received and spent money district, for the collected use of the is liable there- by respondent for. It is conceded counsel for that since the fund longer sued for has-been used exists, no county, manda- compel will mus not lie of a pay- issuance warrant for its ruling ment. Such was the Wainwright-Steedman State ex rel. Special Holman, District v. Road W. 908. S. was there held that if the even disbursement of the was un- fund authorized, same; the rule would be the that the fact there were no act, funds on which the could writ that conclusion. The opinion closes the statement that whether there was another remedy against county, question presented was a not for de- timely cision. In case had been no demand for the funds, except perhaps part year. case, petition for one In this alleges timely application district, was made and the answer, out, general denial; but, qualified heretofore set no contains there is a paragraph. reply denial in the third: The is a denial. paragraph second alleges delivery the answer the district acceptance by “twenty-five it of dollars every hundred cents valuation, . . tax . tax and the ten-cent fifteen-cent both together, discharge value full satisfaction and up amount due.” The third answer sets paragraph brought defense that ivas revenue for which the suit collected and years and that 1922 and same was never demanded', and filed protests were estopped. taxes were expended, collected and the district In Farmer, the narrative testimony Mr. statement of the óf county clerk, bill appellant, set out to as but referred exceptions, given him in application there is embodied written August, 1922, County “for now in Treasurer funds the hands of the belonging Billings Special 'from whatever Road District and out, source derived.” as so set Clerk paid twenty-five that he to the district cent road and “the full bridge tax, Special which was ex Road held State rel. Monett *8 Barry District v. 258 710, belong S. such road dis- W. tricts, presented but no requisition that other form of was ever levy.” the However, respondent ten-cent in an abstract additional out, has set as in the bill of ex- introduced included evidence and ceptions, three applications respectively other March written dated 3, 29, 1923, 1923, January 1924, November ap- an each plication County Treasurer, all “for now in of funds the hands the belonging Billings Special said from District and whatever Road derived,” paid source bearing and each there- á notation amounts on, payments. County that Clerk testified the dates money expended years 1922 and which for the was de- levy,' county rived spent the ten-cent the court for from was bridges a county. and culverts all narra- over the There is also short testimony having tive County quoted Treasurer as tes- “money tified that the was which was derived from the ten- cent levy,” presented unconstitutional and that he books to show expended; “during year $3500 was but that 1924 there was some treasury road-and-bridge fund account about attorneys time the He special tax.” made demand for the ten-cent attorneys quoted saying is prevent pay- further as tried to ing money building in 1924 this to a contractor for the of a place county. only a at named other shown Special is B. a clerk of Burghaus, stated as follows: “J. Road District, understanding that it was that testified his notice set tax, out and identified Mr. Farmer included the ten-cent but ad- orally either requisition no other was ever made or in mitted writing during for the ten-cent tax.” “statement,” precedes introduces the which what is termed

.In “by Christian reason appellant states that brief, abstract levy may which population” in the class of counties of its is such amount and that purposes,” forty cents for excess road-and-bridge twenty-five levied “for cents levied, and also constitutional, making levy which purposes, a total amount fol- There valuation.” sixty-five the one hundred dollars’ cents on is over lawsuit question this statement: “The lows further sixty-five-eent levy, and above the over ten-cent unconstitutional “ ’’ plain- by both says: It admitted levy. further is constitutional He levy is unconstitutional.” tiff defendant ten-cent what was the total this record cannot be determined from or for road levies, levies for road nor what was the total of the admission respondent make no bridge purposes. Counsel for levy particular unconstitutiontal —-make their briefs constitutionality. as- The total question all at reference alleged. property of the 'not sessed valuation of the seen, al- answer, has been paragraph as The first of defendant’s unconstitutional, “the tax leges and that tax so levied designated ‘Bridge Levy’ Tax of the amount is extraneous petition nor any special law.” Neither taxes and road district record, which facts, they appear in the answer state nor do designated “bridge as the validity tax, of the ten-cent constitutional nothing levy Levy” to show what Tax can be determined. There Sess., Ex. amended. was made under Section [Laws having a in counties p. amended, that section authorized As 172.] inhabitants, fifty population two thousand of less than hundred ’ valu- levy twenty the one hundred dollars of not more cents on than mandatory levy not less than provision making prior ation. The ten cents was eliminated. *9 provi- allegation levy under the There is as to what was made no discretion, courts, county 10683, permitting their

sions Section twenty-five tax, exceeding cents on levy special a not to and collect bridge for “road to be used each one-hund'red-dollar valuation requires purposes,” purpose. and for other Section no special district special road shall property tax collected on within a the credit” of the paid county treasury, “placed into to be county in favor of paid upon court district and out warrants of the commissioners, direc- 10682 makes no of such district. Section money provisions. tion as to the distribution of the collected 279, was held Barry County, 302 Mo. it However, in State ex rel. v. provision that, for distribution of while Section made no yet, provisions of Section thereunder, taxes collected under the required all applicable that taxes for districts, to road it is existing law, or by purposes collected virtue road and within a enacted’, upon property any 'subsequent law thereafter aside, district such district, the credit of special road “shall be set to application district, upon written paid treasurer of such to be to the required, county court The of such district.” commissioners aside collected, and set them paid apportion to as such taxes are in that case is adverse The decision to the credit of the district. designated respondent “the tax allegation that the contention and due levy’ amount of taxes ‘bridge as the tax extraneous ” by 'by law; language, if counsel means any special district road provision was a tax under the it was “extraneous” because it levied an particular tax here issue was of Section If he means the author- tax, because levied excess of amount unconstitutional X), or, making a Sec. Art. (Constitution, ized Section forty levy on the one purposes excess of cents total alleged valuation, such facts should have been dollars’ hundred appeared. have character would shown so that its unconstitutional pleadings, agree upon thing, the one parties, by their levy, designated money under a ten-eent as a for, sued collected identify defined “Bridge Levy,” levy not otherwise so as Tax county Respondent alleges time- court. it, had been appellant impliedly appli- admits an ly was application made, stating payment made, in that there was funds cation twenty-five cent levy. from the derived everything appears practically may in what

"Wehave set out appellant. The issue here must abstract and brief of termed the be upon theory proper, and the record be determined If the funds sued for. the little timely application made for out, considered, evidence to no show that is set being paid all knew that it was the. district the officials of during payments -were made. it, the time due to of the funds knowledge the law that the district was Charging officials district for property all within the taxes collected entitled nothing they to show learned there is when bridge purposes, road They demanding all. part. were It is not only a they had received spent, before the fund was or de- they made demand a case where might presume meantime, court only part; manded relying forego, part; all there- intending or the district obligations obligations. here ivere contracted contracted on, The inference is that fund. for the applications face of the tax Section and: not, did and set aside credit collected, apportion paid and issue was appropriated that fund to beginning but, district; *10 county. of the the use ‘‘ Juris, page 581, Corpus

In 15 section it is said: The revenues county property county of a are not the the sense which person corporation A private regarded. the revenue a or county only public corporation existing public purposes a for con- government, nected with the administration of state its revenue is subject Legislature, Legislature the control of to the when the application particular directs the purpose, a revenue to or its payment obligation party, duty imposed to and an created on county.” the

Among support the cases cited in of that utterance is Hannibal v. city Marion Mo. 571. A suit recovery money, the for county a share of the taxes—the sum of paid certain taxes to the (cid:127)county, property levied the city. within the The nature of the opinion page claim is stated in the at 576: meaning “The of the law to simply city Hannibal, seems be this: The its own expense, at provide money keep up bridges, to roads, etc., limits, to its within support poor, own exempted keep its and to be up from taxation to bridges limits, roads and exempted outside of to the support county poor of the the outside its limits. To this, effect city pay county g*eneral tax, part as the had to of which was for purposes, special poor these special bridge and there was tax or tax, declared, county city the law pay should over to all general the revenue which applied derived from taxation was not to objects city these To outside limits. ascertain the sum due the city this county pay on to the treasurer theory, city proportion sum which bear the should same to the county amount as the assessment all prop value of erty subject county city taxation bear should to the assessed property value county. of similar in the remainder of the In other should, words, pay back to city, out of the revenue, city poor sum for collected from the tax and tax. object law towas, provide and effect for the disburse already assessed, collected; ment of levied and this taxes dis city designed bursement was return of Hannibal the taxes bridges, collected from its support citizens roads and the poor, supporting outside of the city, burthen their bridges poor building having* already own their own been im operated city. such a posed justly Whether law or unjustly judicial determination, is not a matter for as this court held in Ham County Court, ilton v. St. Louis Mo. and State ex rel. Police County, 34 Com. v. of St. Louis Court Mo. Nor does the Weston, City of Wells v. conflict with case these de question power Legisla cisions. In that case as.t° lying purposes ture to taxation for local of lands authorize outside of question municipality Here, which levied the tax. is as *11 power Legislature of taxes to direct collect- disbursement an cases in the ed; and examination two referred to 15th reports any 34th volumes our seems to render additional investi- gation question superfluous. eases, this into was held both these power Legislature had full direct be done to what should county. injustice levied see no the taxes and collected from We not provision consideration, in the under but matter now question simply power, for our It is as all consideration. provisions the constitutional now relied on were examined and dis- inappli- cussed in the above to declared to be two eases referred cable, question power we as consider the settled.” judgment county was in favor of reversed and remanded. timely cause, an question demand was not issue but . pay “the should the case sustains contention back city city the sum collected out of the revenue from.the ’’ substance, caso, in poor tax tax. This is one where for legislative public corporation one direction, sanction or county, taxes, quasi-corporation, which, collected, as it is collects , place through Officersto set aside and administrative corporation, quasi-public pay up- it of another out the credit application. district, party written The suit is the real suing If capable in its own it interest, name. [Sec. 10801.] conceded, timely application all must, as it funds was escape we see no conclusion that the must made, re- so collected and used it. spond' for funds Holloway the suit use v. Howell was in In accounting. Funds had been collected for and for several equity, an said, had been made. It was at for them application and no case had been made and re- application 612: “If page such equity have here, could say do the district we not fused, sued legal remedy by timely mandamus or say have had might do but we money had law for and re- here at is one The action otherwise.” appears April 22,1924, and under what we brought on It was ceived. timely brought. The is therefore say it cannot af-. Ellison, GO., concur. firmed. Séddon by Lindsay, C., is adopted opinion foregoing

PER CURIAM:—The judges concur. All of the court. opinion of the