Keleher v. Johnson. This is the second trial of this case in the circuit court. On the first trial it was sent to a referee, who dismissed the cause on the ground that the contract between the parties was champertous. The cause was appealed to our Supreme Court, that contention was overruled and the cause remanded, as see Kelerher v. Henderson, 203 Mo. 498, 101 S. W. 1083. It is urged by learned counsel for the administrator of Henderson that the matter of the contract between plaintiffs and Henderson & Shields and between the plaintiffs Kelerher & Company and the bondholders who placed bonds and coupons in their hands, as now shown, was not before the referee or the Supreme Court at the former trial and that therefore the question of whether this is a champertous contract is an open question. We cannot accede to this view. While it is true that the court held, when the case was before it, that the defense of champerty was an affirmative defense which must be pleaded, and that it had not then been pleaded, a careful reading of the opinion discloses that the Supreme Court did have before it this contract between the bondholders and Kelerher & Company and, in effect, held that while that contract might be champertous, the contract between the plaintiffs and Henderson & Shields was not subject to that claim. So the referee who last passed on the case held. We do not feel called upon to express our own view on this question, but feel bound to follow the decision of our Supreme Court in its decision on it in this same case and so hold the contract between plaintiffs and the firm of Henderson & Shields is valid. It is now the settled law of our State, as we understand it, that this being a suit at law and involving a long account which would make it a case for compulsory reference, the finding of the referee, when approved by the trial court, has the force and effect of a special verdict of the jury and is binding on appeal, if supported by substantial evidence. That is the rule of decision announced by our Supreme Court in the case of City of St. Louis to the use of Carroll-Porter Boiler Keleher v. Johnson. & Tank Co. v. Parker-Washington Company, 217 Mo. 229, 196 S. W. 767, commonly referred to as "the ParkerWashington Company Case." That was a case heard and determined in banc. The opinion was by Chief Justice GRAVES, rendered in division, and adopted in banc, all concurring except Judge BOND, who dissented in an opinion filed, Judge WOODSON concurring in the result. That opinion was under review by the Supreme Court in Johnson v. Star Bucket Pump Co., not yet officially reported, but see 202 S. W. 1143, the opinion again written by Chief Justice GRAVES and concurred in by Judges BLAIR and WILLIAMS, Judge FARIS concurring in the result. Judge BOND dissented in a separate opinion in which Judges WALKER and WOODSON concurred. It was again before our Supreme Court in Roloson v. Riggs, not yet officially reported but see 203 S. W. 973. That case was also in banc, the opinion being written by Mr. Commissioner Railey and that was adopted as the opinion of the court, Chief Justice GRAVES and Judges FARIS, BLAIR and WILLIAMS concurring, Judge WALKER concurring in the result, and Judge WOODSON Concurring in all except what is there said in affirmation of the majority view in the Parker-Washington Company case. Judge BOND alone dissented, because, as he states, the opinion does not state correct rules of review in compulsory reference cases. We may conclude, therefore, that the rule announced in the Parker-Washington Company Case, supra, is to be accepted as the rule in our State. It follows that in this, an action at law, the finding of the referee, confirmed in main as it was by the court, is to be taken and considered as in a special verdict of the jury in actions at law. It is true that the learned trial court made some supplemental findings, modifying in some respects the result reached by the referee, but he was entirely within the facts and the law, indeed was proceeding by agreement of counsel in these modifications. We find a somewhat similiar rule prevailing in the State of Kentucky, in Howell v. Chaney, 180 Ky. 646, 203 S. W. 536, the Court of Appeals of that State holding that it Keleher v. Johnson. was immaterial as to whether the parties had consented to a reference as long as the report of the master was regularly made, since that report was merely advisory to the trial court; and the only question about which the appellate court need concern itself is whether the judgment is sustained by the evidence. We see no error whatever in the finding in favor of the plaintiff Kelerher, assuming that the contract was not champertous. In point of fact, there was no dispute by defendant that that is correct-the question of champerty out of the way. Plaintiff Kelerher now claims it should be for a larger sum. We do not agree to that, as we think. it awarded Mr. Kelerher all to which he is entitled under the testimony, and is supported by substantial testimony. The items claimed and allowed in favor of defendant consisted of expenses connected with enforcing the payment of the judgment in the name of Samuel C. Davis & Company, and which the defendants had obtained and which services were rendered either through themselves or through others that they employed. The contract, to repeat it so far as here necessary, reads: "It being understood that said P. F. Kelerher & Company shall pay one-half of any and all reasonable expenses or sums of money that may be necessary and proper for us to expend to insure the successful prosecution of said suit. In other words, said P. F. Kelerher & Company to share equally with us in the expenses and profits accruing from said suit." Beyond all question, no profits could accrue from that suit unless the judgment was collected in whole or in part. So the learned referee construed it. We do not think, therefore, that the position of learned counsel for plaintiff is sound, when they contend that no expenses were to be charged up against plaintiffs to which they were to contribute except such as were incurred in obtaining the judgment itself. Obtaining the judgment itself, without satisfaction of it in whole or in part, could by no possibility yield profits. All the expenses which were allowed were those which the In re Webers. referee found to be proper and necessary expenses connected with the obtaining of payment of 65 per cent. of the judgment. There was substantial evidence of these and that they were reasonable. So the referee found. As we read the testimony bearing on this, we think the referee was correct both on the facts and on the law. We do not think it will serve any useful purpose to set out in detail even a synopsis of the voluminous testimony taken in this case. It is substantially reviewed by the referee in his finding and by counsel in their very elaborate and elucidative briefs and arguments. We find no error to the prejudice of either party in the rulings of the referee or to the action of the learned trial court in passing upon his report, nor in the judgment which that court rendered. The judgment of the circuit court is affirmed. Allen, J., concurs; Becker, J., not siting. IN THE MATTER OF ALBERT WEBERS. St. Louis Court of Appeals. Opinion Filed November 6, 1918. 1. HABEAS CORPUS: Courts: Jurisdiction of Courts of Appeal: Constitutional Questions: Transfer of Causes. Courts of Appeal are without authority to transfer to the Supreme Court, writs of habeas corpus sued out under the Habeas Corpus Act upon petition to either the Courts of Appeal or to any one of the judges thereof, even though it be found that a constitutional question is involved. 2. : In such case the Court of Ap peals being without jurisdiction when a constitutional question is involved, the writ issued will be quashed and the petitioner remanded. In re Webers. C. J. Anderson for petitioner. (1) That portion of section 3459 is issue here is unconstitutional, null and void in this: (a) It is violative of article 4, section 53, clause 26, of the Constitution of Missouri, 1875, in this: that it is a special law, and attempts to grant to private corporation and its members a special and exclusive right and privilege, which is denied to other persons in the same class. (b) It is violative of article 4, section 46, of the Constitution of Missouri, 1875, in that it attempts to grant public money to a private corporation and the individual members thereof. (c) It is violative of article 4, section 47, in that it attempts to authorize various cities and to grant public money in aid of private corporations, and the individual members thereof. (d) It is violative of article 10, section 3, of the Constitution of Missouri, 1875, in that it permits the levying of taxes for private purposes. State ex rel. v. Kimmel, 256 Mo. 611; State ex rel. Heaven v. Ziegenhein, 144 Mo. 283; State ex rel. v. Switzler, 143 Mo. 287; State ex rel. v. St. Louis, 216 Mo. 47. (2) That portion of section 3459, Revised Statute 1909, as amended by the laws of 1913, page 192, is violative of the Fourteenth Amendment of the Constitution of the United States in that it deprives each person arrested by the Police Department of the city of St. Louis, of property fifty cents in cash) without due process of law. Every person arrested must, under this law, pay the fifty cents bond fee, in order to be released on bond, regardless of whether such person is innocent or guilty of the charge placed against him. (3) That portion of section 3459, Revised Statutes 1909, in issue here is violative of article 4, section 53, clause 26, of the Constitution of the State of Missouri, in that it grants a special and exclusive right, privilege and immunity to such police officers and police officials as are members of the St. Louis Police Relief Association, and denies the same to such police officers and police officials as are not members thereof. State ex rel. v. Tolle, 77 Mo. 645; State ex rel. v. Miller, 100 Mo. 439; 200 M. A.-24 |