Summary
In Zinn v. City of Steelville, 351 Mo. 413, 173 S.W.2d 398, this court, En Banc, upheld a city ordinance forbidding music or dancing in any place where intoxicating liquor or nonintoxicating beer is sold. What we there said anent the power of cities to regulate such occupations is applicable to the facts in the instant case.
Summary of this case from Nickols v. North Kansas CityOpinion
No. 38167.
July 6, 1943.
1. CONSTITUTIONAL LAW: Municipal Corporations: Intoxicating Liquors: Ordinance Prohibiting Music or Dancing Where Beer or Liquor Sold Held Constitutional. The ordinance of the City of Steelville which prohibited music or dancing on premises where liquor or beer, including 3.2% beer, is sold was within the police power and did not violate constitutional rights.
2. STATUTES: Intoxicating Liquors: Ordinance Construed: Ejusdem Generis: Rules of Construction: Not Void for Uncertainty. The ordinance of the City of Steelville prohibiting music and dancing on premises where liquor is sold applies only to the proprietors and not to their guests. The rule of ejusdem generis limits the term "other entertainment," and the prohibitions are limited to the part of the building where liquor is sold. The construction which will uphold the ordinance should be adopted, and it is held not void for uncertainty and indefiniteness.
3. MUNICIPAL CORPORATIONS: Intoxicating Liquors: Evidence: Harmful Effect of Juke Boxes Where Beer Sold. It was not error to permit testimony as to the harmful effects of juke box music in establishments where beer is sold, as it was material in defending the validity of the ordinance.
Appeal from Crawford Circuit Court. — Hon. W.E. Barton, Judge.
AFFIRMED.
L.H. Breuer and E.W. Allison for appellant.
(1) Injunctive relief against void city ordinances, proper. Baker v. Hasler, 274 S.W. 1095; Graves v. Purcell, 85 S.W.2d 543. (2) Injunction lies to restrain threatened enforcement of a special law and this applies equally to city ordinances as well as state laws. Missouri Constitution, Art. IV, Sec. 53, subsection 32; City of Springfield v. Smith, 19 S.W.2d 1; Ex parte Lerner, 218 S.W. 331. (3) The powers of a Board of Aldermen of a city of the fourth class to enact ordinances regulating the business and conduct of its citizens are defined and restricted by the statutes of Missouri and the ordinance in question in this case does not come within the purview of the powers delegated to the Board of Aldermen of such city and is illegal and void. Sec. 7442, R.S. 1939. (4) Ordinances of a city, to be valid, shall conform to the power and authority delegated to such city by state law. And the ordinance in question in this case is without and beyond the power and the authority delegated by state law to the Board of Aldermen to enact and enforce and is invalid and void. Sec. 7442, R.S. 1939. (5) The ordinance in question in this case singles out certain businesses and persons operating the same, as well as a restricted class of persons that patronize such businesses, to-wit: businesses having a license to sell intoxicating liquor or beer, or nonintoxicating beer, and denies such citizens the enjoyment of their liberty and property and denies them due process of law as guaranteed by the Constitution of Missouri, Sections 4 and 30, Article II. (6) The ordinance in question in this case deprives certain persons therein singled out of their liberty and of their property without due process of law, and denies those certain persons, so singled out by said ordinance, and to whom it is intended to apply, the equal protection of the law in violation of the 14th Amendment, as well as Amendment V of the Constitution of the United States. (7) The necessity for the existence of Civil Government lies in the protection it affords to the rights of the individual. Laws enacted for this purpose, by which the government manifests its power, are necessarily more or less restrictive in their nature. They should therefore embody in their terms evidence that they will at least not lessen if they do not add to inalienable rights. Unless, therefore, it can be shown that such an enactment adds to or tends to make an addition to fundamental rights, they are not justified. State ex rel. v. McKelvey, 256 S.W. l.c. 478. (8) The value of property is dependent upon the uses to which it may be put. To limit the use is a restriction upon the right of property, and should not be made without compensation unless the right restricted would, if exercised, rise to the plane of a public nuisance. State ex rel. v. McKelvey, 256 S.W. l.c. 478. (9) To follow a lawful business or vocation is part of the liberty protected by the constitutional limitations. Hughes v. Operators, 221 S.W. 95. (10) While cities have great powers vested in them to pass ordinances which may be deemed expedient for the good government of the city and for the preservation of its peace and good order, there are certain fixed restrictions upon the exercise of this power, and against the enactment of oppressive ordinances under the guise of protecting the general public in their morals, peace and order. Municipalities are not guardians of morals, as such, and therefore may not unduly interfere with the liberty of the citizens by ordinances forbidding acts not unlawful or wrongful per se. City of Carthage v. Block, 139 Mo. App. 386. (11) A city ordinance must be clear, certain and definite so that the average person may understand, upon a reading thereof, whether he will incur a penalty for his action. City of Washington v. Washington Oil Co., 145 S.W.2d 366. (12) The ordinance in question constitutes class legislation and denies to certain citizens of the City of Steelville "due process of law" in that certain citizens and certain classes of citizens of that community are singled out for the imposition of restraints and burdens not imposed upon and to be borne by all of the classes, or of the community at large. Said ordinance is unreasonable, arbitrary, discriminatory, oppressive and unequal in its applications and violates provisions of Sections 4 and 30 of Article II of the Constitution of Missouri. (13) The ordinance in question is in conflict with Section 1, Article XIV, of the United States Constitution, which forbids that "any state deprive any person of life, liberty or property without due process of law." (14) The ordinance in question cannot be denominated a police regulation for it does not in terms or by implication promote, or tend to promote, the public health, welfare, comfort or safety; the State will not be allowed under the guise and pretense of police regulations to encroach or trample upon any of the just rights of the citizens, which the Constitution intended to secure against diminution or abridgement. State v. Julow, 129 Mo. 163. (15) Evidence offered by defendants by certain witnesses, over the objections and exceptions of plaintiff, that the playing of automatic music machines, radios, or other music or entertainment, or dancing in plaintiff's place of business, as well as in taverns other than that of plaintiff, was offensive and annoying to them, was purely conclusions on their part and at most represented the particular whims, tastes, and likes and dislikes of the particular witnesses who so testified, and, under the rules of evidence, should not have been admitted and considered by the court under the issues joined in this case, and such evidence was wholly illegal and incompetent. Furthermore, the testimony of certain witness on behalf of defendants, that the playing of automatic music machines, radios or other music or entertainment, and dancing in the particular places of business specifically covered by the ordinance in question, to-wit: places having a license to sell liquor, beer or nonintoxicating beer, was degrading. City of Carthage v. Block, 139 Mo. App. 386. (16) Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation and the power is denied. State ex rel. v. McWilliams, 74 S.W.2d 363. (17) It is well established that whether an enactment by statute, ordinance, or municipal regulation is fairly referable to the police power is to be determined upon its face, or to be shown aliunde. State ex rel. v. Remmers, 101 S.W.2d 70. (18) The city and its officers are clothed with ample authority to proceed against any person or place of business within the city and to regulate such person's conduct of a business, or even close a business establishment, for cause, but that cause must be peculiar to the person complained of or proceeded against, or peculiar to his place of business or manner of operating or conducting such business, but a blanket ordinance merely embodying an abstract regulation or prohibition based on the conception of the Mayor and Board of Aldermen as to what is good and not good for the general welfare, will not be upheld. State ex rel. v. Johnson, 211 S.W. 682.
G.C. Beckham and E.E. Roberts for respondents.
(1) It has been definitely and clearly established and settled by the decisions of the Supreme Court of Missouri and the Federal Supreme Court, that an ordinance fairly referable to the police power of the municipality, and which discloses upon its face, or which may be shown aliunde to have been enacted for the protection, and in furtherance, of the peace, comfort, safety, health, morality and general welfare of the inhabitants of the municipality, does not contravene or infringe the several sections of the State and Federal Constitutions invoked by the appellant here, and cannot be held invalid as wrongfully depriving the appellant of any right or privilege guaranteed by the Constitution, State or Federal; the reason and basis underlying such decisions being that the personal and property rights of the individual are subservient and subordinate to the general welfare of society, and of the community at large, and that an ordinance which is fairly referable to the police power has for its object the "greatest good of the greatest number." Bellerive Inv. Co. v. Kansas City, 13 S.W.2d 628; St. Louis Gunning Advertising Co. v. St. Louis, 235 Mo. 99, 137 S.W. 929; State ex rel. Oliver-Cadillac Co. v. Christopher, 317 Mo. 1179, 298 S.W. 720; Armour Co. v. North Dakota, 240 U.S. 510, 36 S.Ct. 440, 60 L.Ed. 771, Ann. Cas. 1916D, 548; Cusack Co. v. Chicago, 242 U.S. 526, 37 S.Ct. 190, 61 L.Ed. 472, L.R.A. 1918A, 136 Ann. Cas. 1917C, 594; Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016; Zahn v. Board of Public Works, 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074; Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 71 L.Ed. 1228, 53 A.L.R. 1210. (2) An ordinance which prescribes a police regulation need not expressly recite the fact that it is enacted in pursuance of the police power of the municipality, nor need it declare that its purpose is to abolish a nuisance. Bellerive Inv. Co. v. Kansas City, 13 S.W.2d 628; State v. Cantwell, 179 Mo. 245. (3) The mere fact that the ordinance prescribes only a pecuniary penalty by way of a fine to be assessed against a violator of its provisions does not render the ordinance any other than a police regulation, referable to the police power of the municipality. Bellerive Inv. Co. v. Kansas City, 13 S.W.2d 628; 43 C.J. 265; St. Louis v. Sternberg, 69 Mo. 289. (4) The ordinance was within the statutory authority of the municipality. Secs. 4904, 4954, 7168, R.S. 1939. (5) Where the unreasonableness or arbitrariness of an ordinance is fairly debatable, the court will not substitute its own judgment for that of the legislative body charged with the primary duty and responsibility of determining the question. Zahn v. Board of Public Works, 274 U.S. 325; Bellerive Inv. Co. v. Kansas City, 13 S.W.2d 628. (6) When the reasonableness of an ordinance is under investigation as a question of fact, any pertinent matter which may reasonably be supposed to have influenced the enactment of the ordinance is proper evidence. Bellerive Inv. Co. v. Kansas City, 13 S.W.2d 628.
This is an action to declare void an ordinance of the City of Steelville and to enjoin its enforcement. Invalidity is claimed on constitutional grounds. The court entered a decree adjudging the ordinance valid and plaintiff has appealed.
The ordinance is as follows: "Section 1. It shall be unlawful for any person, firm, co-partnership or corporation, or the agent, servant, employees, or officers of any person, firm, co-partnership, or corporation to play or permit the playing of any piano, electric piano, phonograph, coin-in-the-slot-machines, juke boxes, or any other kind of musical instrument or any other kind of entertainment on the premises whatsoever in any room or place in any building where intoxicating liquor or beer or nonintoxicating beer is sold or offered for sale.
"Section 2. It shall be unlawful for any person, firm, co-partnership, or corporation, or the agent, servant, employee or officer of any person, firm, co-partnership or corporation to dance or permit dancing on the premises, in any room or place in any building where intoxicating liquor or beer or nonintoxicating beer is sold or offered for sale.
"Section 3. Any person, firm, or co-partnership or corporation or the agent, servant, employees or officer of any such person, firm, co-partnership, or corporation, who shall violate the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than three dollars nor more than one hundred dollars for each and every offense."
It is alleged that the ordinance is void (1) because in violation of that part of Section 1 of the 14th Amendment, Constitution of United States, which provides that no state shall "deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws"; (2) because it violates sections 4 and 30 of Article 2, Constitution of Missouri, which, respectively, provide "that all persons have a natural right to life, liberty and the enjoyment of the gains of their own industry", and "that no person shall be deprived of life, liberty or property without due process of law"; (3) because the ordinance is a local or special law and violates subsection 32 of section 53, Article 4, Constitution of Missouri; (4) because the ordinance is beyond "the scope of authority granted by the legislative body of said city by the statutes of Missouri"; (5) because the ordinance is not so sufficiently clear and definite "that [400] the average person may understand whether he will or will not incur a penalty under the provisions of said ordinance, for his actions and conduct"; (6) because the ordinance "unduly interferes with the liberty of citizens and persons of the city of Steelville in that it forbids acts not unlawful or wrongful per se"; and (7) because said "ordinance is unreasonable, arbitrary, discriminatory, oppressive and unequal in its application to persons and citizens."
Plaintiff brought this suit "as a resident, tax paying citizen of and as the owner and operator of a place of business within said city of Steelville for the benefit of himself as well as on behalf of and for the benefit of all other persons whose rights are similarly affected." Plaintiff owned and operated a restaurant near the court house in Steelville and sold therein 3.2% beer at retail. He had city, county and state licenses authorizing the sale at retail of 3.2% beer. Plaintiff's evidence showed there was, in his restaurant, "an automatic playing machine" that played a music record "in response to a nickel deposited in a slot and was played and used by ourselves as well as our customers"; that the machine did not belong to plaintiff, but was installed by a Mr. Denton by whom the nickels "were taken out" of the machine "at various intervals and divided" 50-50; that "some patrons danced when the machine played and some did not"; but that the machine "is turned-off and not in use because the city officers ordered it turned-off after the ordinance went into effect." Defendants' answer admitted the enactment and enforcement of the ordinance and claimed it to be constitutional and valid.
General police power is given to cities of the 4th class by Sec. 7168 (R.S. 1939), Mo. R.S.A. which provides: "The mayor and board of aldermen of each city governed by this article shall have the care, management and control of the city and its finances, and shall have power to enact and ordain any and all ordinances not repugnant to the Constitution and laws of this state, and such as they shall deem expedient for the good government of the city, the preservation of peace and good order, the benefit of trade and commerce and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be deemed necessary to carry such powers into effect, and to alter, modify or repeal the same."
Sec. 4904 (R.S. 1939) Mo. R.S.A., authorizes "the board of aldermen, city council or other proper authorities of incorporated cities" to license "retailers of all intoxicating liquor, located within their limits"; and also to "make and enforce ordinances for the regulation and control of the sale of all intoxicating liquors within their limits, provide for penalties for the violation of such ordinances, where not inconsistent with the provisions of this act." Sec. 4954 (R.S. 1939) Mo. R.S.A., likewise authorizes licensing "retailers of nonintoxicating beer within their limits", and to "make and enforce ordinances for the regulation and control of the sale of nonintoxicating beer within their limits, not inconsistent with the provisions of this article, and provide penalties for the violation thereof."
Sec. 4977 (R.S. 1939), Mo. R.S.A., defines nonintoxicating beer as "any beer manufactured from pure hops or pure extract of hops, and pure barley malt or other wholesome grains or cereals, and wholesome yeast, and pure water, and free from all harmful substances, preservatives and adulterants, and having an alcoholic content of more than one-half of one per cent by volume and not exceeding 3.2 per cent by weight." Reference to section 4950 et seq. (R.S. 1939) Mo. R.S.A., discloses that the sale of 3.2% beer is hedged about by many regulations and requirements, showing that its sale is regarded as of considerable public concern.
"It has been definitely and clearly established and settled, by the decisions of this court and of the federal supreme court, that a statute or a municipal ordinance, which is fairly referable to the police power of the state or municipality, and which discloses upon its face, or which may be shown aliunde, to have been enacted for the protection, and in furtherance, of the peace, comfort, safety, health, morality, and general welfare of the inhabitants of the state or municipality, does not contravene or infringe" the 14th Amendment of the Constitution of the United States or sections 4 and 30, Article 2, Constitution of Missouri. Bellerive Inv. Co. et al. v. Kansas City et al., 321 Mo. 969, 13 S.W.2d 628, l.c. 634.
We think it is clear that this ordinance refers to nonintoxicating beer covered by the statutory definition; and that there can be no question about the authority of the city to regulate the sale [401] of such 3.2% beer. Regulations of the sale of intoxicating liquor may properly deny to the seller "the privilege of making his place of business attractive for the loiterer, and so, regulations, statutory and municipal, governing places where intoxicating liquors are sold, may properly prohibit the use of lounging places, chairs, seats, or stools. It is likewise proper to forbid free lunches or other attractions or amusements, such as games or music, and to prohibit any other business except the sale of cigars and tobacco to be carried on in a bar-room." [30 Am. Jur. 430, Sec. 330, annotation 50 L.R.A. (N.S.) 1156; Thiebes-Stierlin Music Co. v. Weiss, 142 Mo. App. 598, 121 S.W. 1099; Laws 1889, p. 104, Sec. 6538, R.S. 1919.] It is also within the police power to regulate or prohibit the sale of nonintoxicating alcoholic beverages. "In measuring the power to prohibit traffic in nonintoxicating beverages, a distinction is to be observed between those which are nonalcoholic and those which are nonintoxicating although they contain some alcohol. . . . Regulatory or prohibitory statutes, in enumerating particular liquors or classes of liquor, often by their express terms include liquors which are nonintoxicating in fact." [30 Am. Jur. 289, Sec. 57.] The reason for this is "The former is usually a harmless article which can in no way injure the peace and morals of society, the latter is or may be harmful, in that it may stimulate the appetite for alcoholics, or may be a means of evading prohibitory laws. Accordingly, it has been held that the police power does not extend to the prohibition of the sale of harmless, nonalcoholic soft drinks, even though, under the guise of selling such drinks, some persons may attempt to sell intoxicants. [30 Am. Jur. 401, Sec. 279; see also p. 272, Sec. 32; annotations 34 L.R.A. (N.S.) 890, 26 L.R.A. (N.S.) 872, 88 A.L.R. 1094.] The United States Supreme Court has upheld statutes prohibiting the sale of nonintoxicating alcoholic beverages as a proper exercise of the police power. [Purity Extract Tonic Co. v. Lynch, 226 U.S. 192, 33 S.Ct. 44, 57 L.Ed. 188.] We, therefore, hold that this ordinance is fairly referable to the police power, and within the statutory power to regulate and control the sale of alcoholic beverages thereunder, including 3.2% beer, granted to the City by the Legislature. We further hold that prohibitions of musical entertainment and dancing in places "where intoxicating liquor or beer or nonintoxicating beer is sold or offered for sale" are proper regulations in the exercise of the granted police power; and that classification on this basis is reasonable. This disposes of plaintiff's constitutional contentions concerning due process, equal protection of the laws, gains of own industry and special or arbitrary legislation.
Plaintiff further contends that the ordinance is invalid because it is not sufficiently "clear, certain and definite so that the average person may, upon reading it, understand whether he will incur a penalty for his action", citing City of Washington v. Washington Oil Co., 346 Mo. 1183, 145 S.W.2d 366; see also 37 Am. Jur. 785, Sec. 163; 43 C.J. 254, Sec. 254, p. 546, Sec. 853. It is argued that "the terms of this ordinance are not restricted to the proprietor of such a place of business or to his employees, but applies with equal force and punishment to any person, firm, co-partnership or corporation, or to the agent, servant, employee or officer of any person, firm, co-partnership or corporation who might play or permit the playing of the various musical instruments mentioned in Section 1 of the ordinance or who might engage in or permit any other kind of entertainment on the premises whatsoever."
While this ordinance could have been more carefully drafted, (it seems unnecessary to prohibit a corporation from dancing) it nevertheless very closely follows the wording of the ordinance in the Bellerive Inv. Co. case which was certainly intended to apply to the owners or lessors of rooms rather than to their guests or tenants. We think the only reasonable construction of this ordinance is that it applies to and regulates only the proprietors or operators of businesses engaged in the sale of intoxicating liquor or beer or nonintoxicating beer (and their agents, servants, employees or officers), because no one else could have authority to permit the playing of musical instruments or dancing on their business premises. While Section 1 contains very general language in prohibiting the playing of "any piano, electric piano, phonograph, coin-in-the-slot-machine, juke boxes, or any other kind of musical instrument or any other kind of entertainment we think the rule of ejusdem generis is applicable. "Where general words in a statute follow specific words, designating special things, the general words will be considered as applicable only to things of the same general character [402] as those which are specified." Puritan Pharmaceutical Co. v. Pennsylvania R. Co., 230 Mo. App. 848, 77 S.W.2d 508, l.c. 511; Kansas City v. J.I. Case Threshing Machine Co., 337 Mo. 913, 87 S.W.2d 195, l.c. 205. Leaving out the designated instruments this would read "to play or permit the playing of . . . any other kind of entertainment." This certainly indicates "any other kind of such entertainment" to be furnished by "playing", namely: entertainment by some kind of instrument for providing music. This intention further appears from the reference to dancing in Section 2, which is considered to require music or at least what is called that.
Likewise, it might be considered that the prohibitions in these sections, by their letter, are applicable to " any room, or place, in any building where intoxicating liquor or beer or nonintoxicating beer is sold or offered for sale." Of course, some buildings might be of such size as to make unreasonable such prohibitions, if applicable to "any room or place" therein. However, the prohibitions are confined by the ordinance to " the premises . . . where intoxicating liquor or beer or nonintoxicating beer is sold or offered for sale." We think this must be held to mean the actual room or place (which might consist of several rooms) "where intoxicating liquor or beer or nonintoxicating beer is sold or offered for sale", and not to apply to other rooms in the same building which are no part of the business premises where such beverages are sold.
We have held that "the primary rule of construction of statutes or ordinances is to ascertain and give effect to the lawmaker's intent"; that even "strict construction `does not mean that whenever a controversy is or can be raised of the meaning of a statute, ambiguity occurs, which immediately and inevitably determines the interpretation of the statute'"; and that the proper office of construction "is to help to solve ambiguities, not to compel an immediate surrender to them." [Meyering v. Miller, 330 Mo. 885, 51 S.W.2d 65.] It is also a well established rule of construction that even if there are two possible constructions of an ordinance, or statute, the one which would uphold its validity will be adopted rather than the one which would defeat it. [43 C.J. 570, Sec. 909; 37 Am. Jur. 829, Sec. 189.] We think these rules should be invoked here, particularly because we believe, from a consideration of this ordinance as a whole, that its intent and purpose is plain. That is to regulate the business of selling intoxicating liquor or beer or 3.2% beer by preventing the proprietors of such business from attracting people to them, inducing them to remain and loiter there, and thus cultivate desire for alcoholic beverages, by providing or permitting musical entertainment and dancing. We, therefore, hold that this ordinance is not void for uncertainty and indefiniteness.
Plaintiff also assigns error in admitting, over objection, evidence of the conditions and effect of the musical entertainment provided in places engaged in the sale of alcoholic beverages. For example: Earl Low, Sunday School superintendent, testified that prior to the ordinance he was "kept awake practically every night during the summer months" by jukebox noise; that it was his opinion that the jukeboxes were played as a "drawing card of beer drinkers; to induce them to come into their place of business, a loiter place, to help draw young people. Q. Then you would say it is an attractive noise to help bring people to the place? A. Absolutely, due to the fact that these machines are played so loud. If it was for the entertainment wholly, then they wouldn't have to play them so loud that you could hear them all over town. . . . I would say that the use of them there, the morals that are affected by drawing the young people, the young boys and girls, to their beer joints for the purpose of entertainment where they are taught the use of the alcoholic drink in these beer joints, and, as a Sunday School worker, I think that is one of the most harmful things that any one community can have, in inducing these boys and girls into these beer joints, and it is brought there through the part of the music and the entertainment which is furnished there."
Plaintiff says that such evidence was mere conclusions and "represented the particular whims, tastes, and likes and dislikes of the particular witnesses who so testified." It will be noted that in the Bellerive Inv. Co. case it is held that a statute or municipal ordinance, fairly referable to the police power, is not void as against due process, etc., as claimed in that case [13 S.W.2d l.c. 634] and here, "which discloses upon its face, or which may be shown, aliunde, to have been [403] enacted for the protection, and in furtherance, of the peace, comfort, safety, morality and general welfare of the inhabitants." This purpose of the ordinance here may not fully appear upon its face, but we think that the ordinance and the evidence, taken together, does disclose such purpose. We, therefore, rule that it was proper for defendants, in defense of the validity of the ordinance, to show by evidence the effect of the jukebox music. Moreover, in reviewing a case in equity, evidence, if any, which might be incompetent will not be considered, but decision will be made on competent evidence offered. [Marr v. Marr, 342 Mo. 656, 117 S.W.2d 230; Aden v. Dalton, 341 Mo. 454, 107 S.W.2d 1070; Snow v. Funck (Mo. Sup.), 41 S.W.2d 2.] Therefore, there is usually no good reason for holding rulings on evidence to be prejudicial in an equity case.
The judgment is affirmed. All concur except Gantt, J., absent.