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City of St. Louis v. St. Louis Railroad Company. is an officer, during the preceding three months ending on the last day of the months of June, September, December and March, and any failure to make the report required by this section shall subject the street railway company so offending to a fine of not less than $500. It shall be the duty of the city register, if said reports show that any of said companies have carried an average of over eighteen persons per trip to each car since their last previous return, to report such company to any of the police justices, and such company shall be subject to a fine of not less than $300 for the first offense, and a fine of not less than $500 for each subsequent offense.”

The case was appealed to the Court of Criminal Correction, where on January 27, 1883, on a trial anew, the defendant was discharged. After motion for a new trial overruled, plaintiff was allowed an appeal to the St. Louis Court of Appeals, where the judgment was reversed (14 Mo. App. 221), and an appeal prosecuted here by defendant.

The agreed statement of facts show that the books of the defendant contained the information necessary to enable it to make the required reports, but that it failed and omitted so to do, and the question is, whether the provision of the ordinance requiring said report is valid and effectual against defendant.

Defendant's counsel urge the objection that the second provision of said section is unreasonable and illegul as a regulation of defendant, and that the first and second provisions are so mutually connected with, and dependent on each other, as conditions, considerations, or compensations for each other as to warrant a belief that the city council intended them as a whole and that therefore they cannot be divided, but must stand or fall together. Whilst this is a sound rule of interpretation or construction of statutes, we are not fully satisfied of its applicability to the section in question. It does not, we think, appear from the section itself, that the sole purpose of the first provision was to enforce the second, or that it never was intended for any other independent purpose. Provisions of like import and of larger scope are not uncommon, and exist without any other provision corresponding to the second provision of said section. They may be, we think, enacted upon other and distinct and independent considerations. Defendant was, it seems, organized under chapter 39, Revised Statutes, 1855, page 404, and associations thereby organized, were required, by section

City of St. Louis v. St. Louis Railroad Company. 39 thereof, to make annually, under oath, very elaborate and detailed reports of their business, including the items as to the number of trips made and passengers carried, required by the provision in question, to the secretary of State.

By the first section of the act, approved January, 16, 1860, the defendant was exempted from reporting to the secretary of State and required to report to the city comptroller. Section 3, of said last named act, authorized the city to make such municipal regulations concerning the defendant as the public interest and convenience may require, but prohibits a reduction in the rate of fare. The present charter of the eity of St. Louis authorizes the municipal assembly by ordinance, “ To determine all questions arising with reference to street railroads in the corporate limits of the city, whether such questions may involve the construction of such street railroads, granting the right of way, or regulating and controlling them after their completion.” Section 1, article 10, page 1616, 2 Revised Statutes of 1879.

In the case of Railroad Co. v. Railroad Co., 72 Mo. 67, this court held that said act of January 16, 1860, was in force and unrepealed and this defendant entitled to its benefits. We see nothing inconsistent with said act in the provision of the ordinance in question requiring said reports, but on the contrary it is, we think, clearly within the grant of power conferred in said section %, empowering the city of St. Louis to make such municipal regulations concerning the defendant as the public interests and convenience may require. Upon a careful examination of the well considered opinion of the Court of Appeals, touching the various questions raised and urged by counsel for appellant, in addition to what is here said, we see no reason to doubt the correctness of the conclusions reached by that court, and for these reasons its judgment is affirmed. In these views, Judges Norton and BLACK concur; HENRY, C. J., concurs in the result; SHERWOOD, J., defining his own position separately.

Herry, C. J., and SHERWOOD, J. We think that the intent of the ordinance in question to make the railroad companies furnish evidence against themselves to be used as evidence in prosecutions for violations of the ordinance as clear as if it had been expressed in the title or body of the act; and upon no principle can such leg. islation be upheld, except that announced in the City of Kansas v. Dyer v. Wittler.

Clark, 68 Mo. 588, in which it was held that the violation of a city ordinance is not a crime. In that case two judges dissented; and it is not so clear that the ordinance in question is valid upon any ground as to admit of no doubts. Says Mr. Wharton, in his work on Evidence: “A witness also will be relieved from answering a question, a reply to which might expose him to a forfeiture of his estate. Nor does it make a difference that the penalties in a penal prosecution are limited to a fine.” 1 Whart. Ev., 8 534. We express no decided opinion upon the question, but have such doubts of the correctness of the ruling of our associates that we cannot give it our hearty concurrence.

DYER V. WITTLER.

(89 Mo. 81.)

Marriage - right of action for possession of wife's lands.

At common law, the right of action for possession of the wife's lands does not

acerue to the wife or her heirs until after the death of the husband and the cessation of his right of curtesy initiate or consummate.

NJECTMENT. The opinion states the case. The defendant V had judgment below.

Thomas A. Russell and E. P. Johnson, for plaintiff in error.

D. Murphy, for defendants in error.

RAY, J. This is an action of ejectment for certain real estate in the city of St. Louis, described in the amended petition, upon which the case was tried. Suit was commenced in May, 1878. The defense is the statute of limitations of twenty-four years. Rev. Stat., § 3222. The reply is, that in the year 1838 the mother of the plaintiffs was the owner of the land in fee-simple, having inherited it from her father; that she was, at the time, the wife of Abner W. Dyer, their father; that there was issue born alive of the marriage in 1837; that their marital relation continued until 1869, when it was dissolved by the death of the mother; that the father sursived and died in 1870; that the plaintiffs are the only surviving Dyer v. Wittler.

issue of the marriage, and claim the premises as heirs of their said mother.

At the trial evidence was given tending to support this reply. The court, under appropriate evidence, in that behalf, offered by the defendants, gave the following declaration of law, which drove the plaintiffs to a nonsuit:

“The court, of its motion, declares the law to be, that if defendants, or those under whom they claim, entered upon a tract of land, embracing the premises described in the petition herein, in the year 1846, claiming to own said tract under and by virtue of a deed purporting to convey the same to them in fee, and in that year inclosed said tract with a fence, and improved and cultivated said · tract, and occupied said tract (or the portion thereof described in the petition), so inclosed and improved continuously from that time, under such claim of title, up to the time of the death of Abner W. Dyer, on or about the 25th of June, 1870, and for three years next after his death, and before the original petition in this case was filed, the plaintiffs are not entitled to recover.”

After an unsuccessful motion to set aside nonsuit, the plaintiffs took the case, by writ of error, to the St. Louis Court of Appeals, where the ruling and judgment of the Circuit Court was affirmed, from which the plaintiffs bring the case here by writ of error. From this record it appears that the plaintiffs claim the property in question as the heirs of their mother, who at and before 1846, when the adverse possession, under which the defendants claim, first commenced, was the owner in fee of said real estate, and a married woman, with issue born alive of that marriage; that the said marriage continued until 1869, when it was dissolved by the death of the mother; that the father survived the mother and died in 1870; and that this suit was commenced in 1878, and within ten years after the death of the father, but not until thirty-two years after said adverse possession had commenced, and thirty-one years after the date of the present statute of limitations of 1847, and more than three years after the death of their father. The defense is the twenty-four years' statute of limitation. Under this state of facts, the only question is, are the plaintiffs barred of their right of action under a proper construction of the statute of limitations of 1847, invoked by defendants, for their protection?

The first section of that act, now section 3219 of the Revised Statutes of 1879, on its face declares, in substance, that no action

Dyer v. Wittler. for the recovery of lands, or the possession thereof, shall be commenced, had or maintained, by any person whatever, unless it appears that the plaintiff, his ancestor, predecessor, grantor or other person under whom he claims, was seised or possessed of the premises in question within ten years before the commencement of such action or suit. But it may be remarked, at the outset, that by common consent the proper construction of the statute is, that notwithstanding the sweeping language of the first section of the act no person is embraced in or contemplated by the first or any subsequent section of the statute, except such as have a present existing right to commence an action or make an entry. Dyer v. Brannock, 66 Mo. 422; s. C., 27 Am. Rep. 359; Johns v. Fenton, 88 Mo. 64; Harris v. Ross, 86 Mo. 89.

Section 4 (now section 3222, of the Revised Statutes, 1879) declares that: “If any person entitled to commence any action, in this article specified, or to make an entry, be at the time such right or title shall first descend or accrue, either within the age of twenty-one years, or insane, or imprisoned on any criminal charge, or in execution upon some conviction of a criminal offense for any time less than life, or & married woman, the time during which such disability shall continue shall not be deemed any portion of the time, in this article limited, for the commencement of such action, or make such entry; but such person may bring such action or make such entry after the time so limited, and within three years after such disability is removed; provided, that no such action shall be commenced, had or maintained, or entry made, by any person laboring under the disabilities specified in this section, after twenty-four years after the cause of such action or right of entry shall have accrued.”

Section 3224, Revised Statutes 1879, reads that: “If any person entitled to commence such action or to make such entry, die during the continuance of any disability specified in section 3222, and no determination or judgment be had of the title, right of action to him accrued, his heirs, or any person claiming from, by or under him, may commence such action or make such entry after the time in this article limited for that purpose, and within three years after his death, but not after that period.”

The question before us, it may be remarked, is determinable, of course, by the state of the common law, as it stood at that date, unaffected by subsequent statutes, limiting the common-law rights

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