Volume 151 — Missouri Appeal Reports

— Hon. F. C. Johnston, Judge. (1) Ordinarily the measure of damages for delay to a shipment is the difference in the market value of the commodity shipped at destination at the time the shipment should have reached destination and at the time it actually did reach destination. Glasscock v. Railroad, 69 Mo. 588; Armstrong v. Railroad, 17 Mo. App. 403; Wilson & Aull v. Railroad, 66 Mo. App. 396; Gann v. Railroad, 72 Mo. App. 40; Perry v. Railroad, 89 Mo.

— Roto. J. G. Sheppard, Judge. (1) It is clear from the evidence, that the fund, against -which the plaintiff drew his -check on defendant, was not the money of the plaintiff, but was the proceeds of the sale of certain property, and in which, according to the evidence of the plaintiff himself, he had put a pro rata share.

— Now. George Pepper dine, Special Judge. (1) The Wolverine Zinc Company, though a foreign corporation which had failed to comply with the laws of Missouri relating to foreign corporations, nevertheless could operate and was in. fact operating the mine as a corporation at the time plaintiff was injured. R. S. 1899, sec. 1026; Tribble v. Halbert, 127 S. W. 168; Young v. Niles & Scott Co., 122 Mo. App. 401; Insurance Co., v. Railroad, 149' Mo. 165; Lumber Co. v. Sims, 101 Mo.

<p>Appeal-from Jasper Circuit Court.— Hon. David E.. Blair, Judge.</p>

Louis City Circuit Court. — Eon. Demiel Q. Taylor, Judge. (1) The court erred in refusing to give the instruction in the nature of a demurrer to the evidence offered by defendant at the close of the- testimony, (a) Because the petition filed by plaintiff does not state a cause of action. Barney v. Railroad, 126 Mo. 372; Overholt v. Yieths, 93 Mo. 422; Mo,ran v. Car Co., 134 Mo. 641; Riñe v. Railroad, 88 Mo. 392; Hawkins v. Railroad, 116 S. W. 16; Foely y. McMahon,. 114 Mo.

Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge. (1) The assessment of benefits for the opening or widening of a street is a special tax, and the city of St. Lonis is authorized, under its charter and ordinances, to issue a special taxbill therefor. St. Louis v. Brinkwirth, 102 S. W. 1091; City v. Ranken, 96 Mo. 500; Newby v. Platte, 25 Mo. 264; Garrett v. City, 25 Mo. 505; Uhrig v. City, 44 Mo. 172; Thomas v. HookerColville, 22 Mo. App. 8, 28 Mo.

— Hon. Henry L. Bright, Judge. (1) Plaintiff was entitled to a trial by jury, and not having waived this right, the court erred in proceeding without a jury. R. S. 1899, sec. 691; Kitchen v. Railroad, 59 Mo. 514; Moline Plow Co. v. Hartman, 84 Mo. 610; Earl v. Hart, 89 Mo. 263; New Haven Lodge v. Railroad, 100 Mo. App. 407; Scott v. Young, 113 Mo. App. 46; Baum v. Stephenson, 133 Mo. App. 187.

— Now. Henry L. Bright, Judge. (1) It is not essential that the property be moved to another place; but there must be some open, notorious or visible act, such as taking an invoice, and when this is done title is passed. Claflin v. Rosenburg, 42 Mo. 439; Mills v. Thompson, 72 Mo. 367; Harmon v. Morris, 28 Mo. App'. 326.

— Eon. David E. Blair, Judge. (1) To make the wife a competent witness, the transaction must be had and conducted by the wife as agent of her husband. Hearle v. Kreihn, 65 Mo. 205; Lyan v. Hockaday, 162 Mo. 122; Wilden v. McAllester, 91 Mo. App'. 45.1; Bank v. Wright, 104 Mo. App-. 242; Orchard v. Collier, 171 Mo. 399; Fishback v. Harrison, 137 Mo. App. 668; Gardner v. Railroad, 124 Mo. App. 461; Kee v. Freeman, 125 Mo. App. 717; Kuenzen v. Stevens, 155 Mo. 286.

— Horn. W. N. Evans, Judge. (1) That a common carrier .may by contract based on rates, limit its common law liability is so well settled in this country that space prevents a citation of only a few of’the leading cases. Mires v. Railroad, 114 S. W. 1052; Harvey v. Railroad, 74 Mo. 538; Hart v. Railroad, 112 XJ.

— Hon. James T. Neville, Judge. (1) After the defendants had shown fraud in. the procuring of this note by the payee, and failure of consideration, the' burden then shifted to the plaintiff to prove affirmatively, that he was a holder for value before maturity, without notice of such defenses and the cause should have been submitted to the jury on these issues. Jones v. Wilson, 124 S. W. 548; Stewart v. Andes, 110 Mo. App* 247; Hahn v. Bradley, 92 Mo.

— Hon. Alfred Page, Judge. (1) Evidence of what defendant said in German was improper to prove the utterances included in the ■ allegations. 5 Wait’s Actions and Defenses, 744; Kirschbaugher v. Slusser, 12Tnd. 453; Zerg v. Ort, 3 Pinney (Wis.) 30; State v. Marlier, 46 Mo. App. 233; Odger’s Libel and Slander, 109, 110-, 4701; Newell on Defamation, Slander & Libel, 277, 637. (2) The words proved do not sustain the allegations.

— Eon. David E. BlaAr, Judge. (1) It is a rule of pleading in this state that no amendment will he allowed that will change the cause of action, and we contend that the second writ and petition changed the entire cause of action in this case, and in support of our position cite the following authorities. Irwin y. Childs, 28 Mo. 576; Harrison y. Hastings, 28 Mo. 346; Clark y. Transfer Co., 127 Mo. 255; State ex rel.

— Hon. Henry C. Riley, Judge. (1) The court erred in refusing instruction No. 5 asked for by defendant. That instruction under tbe evidence is the law. The plaintiff executed the contract pleaded and offered in evidence in consideration of a reduced rate, which was shown both by the contract and the evidence adduced at the trial. He gave no notice and he was barred by his contract from recovering. Shelton v. Railroad, 13.1 Mo.

— Wo». David E-. Blair, Judge. (1) An unintentional misrepresentation made by the vendor of a piece of real estate is ground for recision of a contract but will not sustain a suit at law for damages.' To justify such an action there must be fraud as distinguished from mistake. Dunn v. White, 63 Mo. 181; Langdon v. Green, 49 Mo. 363; Clinkenbeard v. Weatherman, 157 Mo. 105; Owen v. Rector, 44 Mo. 389.

— Hon. Henry L. Bright, Judge. (1) In order to have saved the point for this court, the plaintiff should have objected and saved her exceptions to the action of the court in sustaining defendants ’ motion to make the petition more definite and certain. State v. Boehler, 128 S. W. 518; Reineman v. Larkin, 222 Mo. 156; Fenderich v. Burress, 129 Mo. App1. 456; Levy & Co. v. Smith, 129 S. W. 989; Dale v. Parker, 128 S. W. 510; Godfrey v. Godfrey, 128 S'. W. 970.

— Hon. James T. Neville, Judge. (1) Simcox having died intestate as to the residue in controversy it descended to his heirs. “Subject to the payment of his debts and the widow’s dower.” R. S. 1899, see. 2908; Hoyt v. Davis, Admr., 21 Mo. App. 240.

— Eon. F. C. Johnston, Judge. (1) The verdict in this case is not based upon evidence. State v. Martin, 28. Mo. App. '530 ; Cape Girardeau v. Fisher, 61 Mo. App. 5091. (2) The state failed to prove that drinks sold by defendant was an intoxicating liquor.

Louis City Circuit Court. — Hon. Chas. Glaflin Allen, Judge. (1) Under the evidence introduced by plaintiff, the deceased husband of plaintiff was, as a matter of law, guilty of contributory negligence; if, indeed, his negligence was not the sole cause of his death. In this: (a) That having been provided with rubber gloves and rubber boots, for the express purpose of protecting him from dangerous wires, he negligently failed to wear either the gloves or the boots.

<p>1. CONTRIBUTORY NEGLIGENCE: Unloading Logs: Occupying Place on Top of Logs. Plaintiff got on. top of a carload of logs and with a canthook was assisting in unloading the logs, when a side stake broke and the logs rolled off, carrying plaintiff with them and injuring him. The evidence showed that other men occupied the space at the end of the car and that there was no room.for plaintiff to help with the canthook unless he got on top, as he did. Held, that plaintiff was not guilty of contributory negligence.</p> <p>2. FELLOW-SERVANTS: Negligence. While plaintiff was on top of a car of logs, assisting in unloading, one of the side stakes broke and plaintiff fell with the logs and was injured. It was the duty of the men engaged in getting the logs from the forest to the mill, to cut and prepare the side stakes. Held, that if the fall of the logs was due to a defective stake, that this stake had been made by one of the men engaged with plaintiff in the common employment of getting logs from the forest to the mill, all working under the immediate direction: of the same foreman, the negligence, if any, was that of a fellow-servant. NIXON,- P. J., dissents, and in a dissenting opinion holds that tne servant in the woods, who made the stake, was not the fellow-servant of the plaintiff, in such a sense as to-relieve the master of liability.</p> <p>8. MASTER AND SERVANT: Safe Place to Work: Delegation of Duty, It is the duty of the master to use ordinary care to furnish the servant a reasonably safe place to work, and this duty cannot be delegated.</p> <p>4. -: -: Servant Employed to Prepare Safe Place: Fellow-Servants. If, in the performance of the work, it should be necessary for the servant himself, or a fellow-servant, to prepare a place in which to perform the work, and the master shall use due care to furnish proper material and competent fellow-servants, and a fellow-servant shall select bad material, when good material is also available,- and by reason of that act another fellow-servant is injured, the master will not be liable.</p> <p>5. -:--: -: -: Unloading Cars: Defective-Stakes. While plaintiff was assisting in unloading logs from; a car, a side stake broke, the logs fell, and plaintiff was injured. The stake had been prepared and placed in a socket on the car by a fellow-servant in the forest from which the logs were hauled. Held, that even if the defective stake be regarded as a part of plaintiff’s place to work, that the simple duty of selecting and cutting the stake and fitting it in .the: socket of the car could be delegated to the ¡servants themselves, and when so prepared by a fellow-servant the master could' not be held responsible for its defective condition. NIXON, P. X, dissents, and in a dissenting opinion holds that the duty of the master to use ordinary care to furnish a reasonably safe stake could not be delegated to the servant in the forest,, so as to relieve the master of liability for injury to the servant engaged in unloading, where the injured 'servant had nothing to do with cutting or placing the stakes, nor was ha-employed with an associate in that particular work.</p> <p>6. INSTRUCTIONS: Master and Servant: Negligence: Duty of" Master. An instruction, given on the part of plaintiff, which, told the jury that it was the duty of defendant to furnish plaintiff a reasonably safe place to work is held erroneous, as-it placed upon the defendant the absolute duty to furnish plaintiff a reasonably safe place to work, whereas, the law only requires that the defendant use ordinary care to furnish a rea_ sonably safe place.</p>

— How. Alfred Page, Special Judge. (1) The motion to quash the indictment in the case should have been sustained. It is the fundamental law of this state that the indictment or information should thoroughly appraise the defendant of the accusation he must prepare to meet and repel at the trial and should be so definite and certain that the trial had thereon, whether resulting in acquittal or conviction could be pleaded in bar of a further prosecution for the same offense.

— Row. Jas. E. Goodrich, Judge. (1) The court erred in sustaining defendant’s demurrer to plaintiff’s petition. The appeal having been .taken, and the bond having been given to protect the re- • spondent from the effect of that appeal, the name of the appellate court in said bond is mere recitation, and the words therein “Supreme Court” should be read to mean “proper appellate court.” The bond should be construed according to its real intention.

<p>Appeal from Jackson Circuit Court. — Row. James E. Stover, Judge.</p>

— Eon. Hermcmn Brumbado, Judge. (1) The petition does not charge generally or specially that any act of defendant was done-negligently and, therefore, fails to state a canse of action. Raw-son v. Railroad, 129 Mo. .App'. 613; MeCurt v. Hotel Co., 144 Mo. 397; Shaw v. Goldman, 116 Mo. App-. 332; Loehring v. Construction Co., 118 Mo-. Ap-p-. 163; Dyer v. Railroad, 34 Mo. 127; Brown v. Railroad, 33 Mo. 309; Gray v. Ilornheck, 31 Mo. 399'.

— Row. Alonzo D. Burnes, Judge. (1) The proper procedure by defendant to obtain relief against a judgment rendered against him after the adjournment of the term at which the judgment is rendered is by resort to equity: Curtis v. Bell, 131 Mo. App. 245; Cross v. Gould, 131 Mo. App. 585; Dearborn v. Gann & Atkinson, 126 Mo. App. 638.

— Hon. Lucian J. Eastin, Judge. In plaintiff’s exhibit A, Mrs. Hutton, one of respondent’s grantors, in order have the improvement made expressly waived all defenses to the taxbills sued on and agreed not to contest their validity. This agreement was founded upon a good consideration, is lawful, estops respondent and entitles appellant to judgment. (1) On the record the taxhills are void.

— Eon. Francis E. Trimble, Judge. (1) Applicant liad a right, under the admitted facts, to demand the appointment of an administrator, so that he could file his claim for purchase money, obtain a judgment reciting that the same was for purchase of the piano in question, in order to place himself imposition to call into requisition the assistance of a chancery court in seeming possession of said piano and in subjecting- it to the payment of the balance due for purchase money.

— licit. Alonso D. Burnes, Judge. (1) The cattle were shipped and the contract of shipment was made in the name of W. W. Silvius, as consignee, who testified that he was owner of part and was holding balance in his name to secure payment of the purchase money. The suit should have been in his name. Atchison v. Railroad, 80 Mo. 213; Harvey v. Railroad, 74 Mo. 538; Porter v. Raymond, 53 N. H. 519; Clubb v. Railroad, 136 Mo. App. 1; Hickman v. Craig, 6 Mo. App. 582; 3 Ency.

— Row. Walter A. Powell, Judge. (1) The court committed error in overruling defendant ’s -demurrer to the evidence. Plaintiff was a trespasser on defendant’s track, and it owed to her no duty except not to willfully or wantonly injure her.

— Hon. Frmicis H. Trimble, Judge. The demurrer to plaintiff’s evidence should have been sustained, because there was no sufficient evidence to establish prima facie that the fire that burned plaintiff’s property was set by an engine on defendant’s railroad, nor any fact from which such an inference might properly be drawn.

— Hon. Lucian J. Eastin, Judge. The court erred in overruling RacMiffe-Gibson Construction Company’s demurrer: First, because the designating notice was in compliance with the law governing cities of the second class and was sufficient. Gist v. Racldiffe-Gibson Const. Co., 123 S. W. Rep. 921. Second, because ordinance No. 4714 did fix the time within which the work was to be completed and was a perfectly valid ordinance.

Error from Platte Circuit Court. — Eon. Alonso D. Burnes, Judge. (1) The first count of the petition based on section 1110, R. S. 1899, is sufficient. Cooper v. Railroad1, 123 Mo. App. 142; Cox v. Railroad, 174 Mo. 588. The second count -of the petition is good as a common law count. Brink v. Railroad,. 17 Mo. App: 177; Munkers v. Railroad, 72 Mo. 514; Edwards v. Railroad, 97 Mo: App. 103; Byrne v. Railroad, 47 Mo. App: 383.

<p>CONTRACTS: Sale of Real Property: Breach: Earnest Money. A vendee, in a written contract for the sale of real estate deposited witb vendor’s agents $100 pursuant to the terms of said contract. The vendors failed to deliver an abstract of title within the time provided for such delivery. SeU, that vendee could recover the amount deposited in an action against the agents for a breach of contract.</p>

— Hon. B. C~ Tlvurman, Judge. (1) The assignee of a claim sought to be preferred succeeds to all the rights his assignor had. Burnham v. Bowen, 111 U. S. 776; Loan and Trust Co. v. Railroad, 69 Fed. Rep. 23.

— No». W. O. Thomas, Judge. (1) The trial court erred in including clause numbered “second” in plaintiff’s sixth instruction, for the reason that there was no evidence of “the impairment to plaintiff’s earning capacity.” Boyce v. Railroad, 120 Mo. App. 168; Mammerherg v. Railroad, 62 Mo. App, 563; Stoetzele v. Swearingen, 96 Mo. App. 592; Harwarth v. Railroad', 94 Mo. App. 215; 0 ’Brien v. Loomis, 43 Mr. App. 29’; Davidson v. Transit Co., 211 Mo. 320.

<p>1. DAMAGES: Excessive Verdict: New Trial. A verdict for five thousand dollars, reduced to a judgment for three thousand dollars by remittitur for two thousand dollars entered by plaintiff before the hearing on a motion for new trial, for injuries sustained by the loss of the use of three fingers of the left hand of a laborer thirty-five years old, is not so-excessive as to warrant a new trial, in the absence of any-finding that the verdict was the result of passion or prejudice.</p> <p>2. EVIDENCE: New Trial: Proximate Cause. Where the plaintiff’s evidence, if accorded every reasonable inference, showed that the proximate cause of his injury was the negligence of defendant in operating a pile-driver with defective brake-shoes, defendant’s motion for a new trial on the ground that o this issue was improperly submitted to the jury, was erroneously sustained.</p>

— How. Alonzo D, 'Burnes, Judge. (1) There being no evidence to support the allegations, in counts one and two of the petition, of what caused the damage, but the evidence being that the damages resulted from causes not alleged1 in said counts, the demurrer to the evidence at the close of all the evidence should have been sustained. Dunham v. Joice, 129 Mo. 5; Hite v. Railroad, 130 Mo. 132; Hunt v. Railroad, 89 Mo. 607.

— Ho». C. A. Den-ton, Judge. (1) It is a fundamental principle of law that a meeting of minds is essential to a contract. Barton v. Hunter, 59 Mo. App. 610. (2) The mind's of the parties must assent to the same thing in the same sense. Mfg Oo. v. Broderick, .12 Mo. App. 378; Oreen v. Cole, .103 Mo. App. 570; Robinson v. Estes, 53 Mo. App. 582.

<p>Appeal from Holt Cirenit Court. — How. Wm. G. Ellison, Judge.</p>

— Hon. W. O. Thomas, Judge. (1) Respondent expressly admitted that the four hundred and fifty dollars named in the contract to he paid by respondent to appellant upon a breach by him was liquidated damages, and waived the question of its being a penalty. (2) In an action to recover liquidated damages provided in a contract it is not necessary in addition to the contract and its breach to allege and prove specific damages.

— Hon. James H. Slover, Judge. (1) The court erred in overruling the motion of the defendant (the appellant) to have his exemptions allowed out of the money deposited in court by the garnishees and in ordering said- money paid to plaintiff (respondent). Each head of a family may hold as exempt any property, money debts or wages not exceeding three hundred! 'dollars in value. Sec. 3162, R. S. 1899. Except ten per cent thereof. Session Acts 1903, page 195.

— Hon. W. O. Thomas, Judge. ' (1) Upon the entire record the deceased was guilty of such negligence, or contributory negligence, that no recovery can be sustained in this case, irrespective of anything that is or might be pleaded. Schaub v. R. R., 133 Mo. App. 444; Duncan v. R. R., 46 Mo. App. 199; Lien v. R. R., 79 Mo. App. 475; Jones v. Barnard, 63 Mo. App. 501; Drake v. R. R., 51 Mo.

— Hon. William H. Martin, Judge. (1) The court erred in not instructing the jury to return a verdict for appellant. Stickney v. Salem (Mass.), 3 Allen 374; Orcutt v. Bridge Co., 53 Me. 500; Kinney v. Onsted, 113 Mich. 96, 71 N. W. 482; Kelley v. Lawrence, 195 Mo. 75. (2) The court erred in giving instructions on behalf of respondent. Robertson v. Railroad, 152 Mo. 382; Railroad v. Railroad, 118 Mo. 625; Zwisler v. Storts, 30' Mo.

<p>Appeal from Linn Circuit Court. — Now. John P. Butler, Judge.</p>

<p>1. INTOXICATING LIQUORS — Act of Clerk — Consent of Proprietor — Premises. Where a proprietor is prosecuted for the act of his clerk in permitting liquor to be drunk on the premises, the consent of the proprietor to the act is necessary in order to establish his guilt.</p> <p>2. --: -: Prima Facie Case: Burden: Order to Clerk. If it be shown that a clerk permitted liquor to be drunk on the premises it will be presumed that the proprietor consented thereto, and a prima facie case is made. The burden is cast upon the proprietor to show that he did not consent. But he need not show that he ordered the clerk not to commit the act, and an instruction so requiring is erroneous.</p> <p>3. -.: -¡Knowledge: Consent. Knowledge of an act in permitting liquor to be drunk on the premises is not, necessarily, consenting thereto, and an instruction in effect using knowledge and consent as meaning the same thing, is erroneous.</p> <p>4. -: -: -: Circumstances: Inference. There may be guilty knowledge by the proprietor of the act of the clerk and consent to the clerk’s act may be inferred from knowledge in certain circumstances.</p>

— Hon. Nat. M. Shelton, Judge. (1) While the law permits a prima facie case to be made on the introduction of the taxbills, yet if plaintiff chooses to plead the ordinances, resolution, contract specifications, and that they were duly enacted and passed it devolves on plaintiff to prove them and destroys their right to make a prima facie case. “No allegation should be made which the law does not require to be proved.” Mark v. Cooperage Co., 204 Mo. 261.

— Hon. Alonso D. • Burnes, Judge. (1) The court did commit error in refusing defendant’s instruction. We understand it to he the law, that in all cases of ouster in pais when there has been no judgment, the burden of proof is upon the covenantee to establish the paramount title to which he has yielded.

— Ho». Nat. ill. Shelton, Judge. (1) Defendant’s demurrer to plaintiff’s evidence should have been sustained. At most the injury to plaintiff was an accident. Giatio v. Railroad, 132 Mo. App. 363; Force v. Railroad, 114 Mo. App. 551; Wendall y. Railroad, 100' Mo. App. 556; Jones v. Cooperage Co., 134 Mo. App. 324; Saxton v. Railroad, 98 Mo. App. 494. Defendant’s fourth refused instruction should have been given.

— Hon. Nat. M. Shelton, Judge. (1) The statute requiring the trial court to specify in its order the ground on which a new trial is granted in a law case is a substantial right of the losing party, and that right ought to be accorded. Odelheide v. Land Co., 208 Mo. 239. (2) The discretion of the trial court in granting one new trial does not mean that the order of the court will not be reviewed on appeal.

— Ho». James E. Goodrich, Judge. (1) Instruction number 2 given at request of plaintiff, was erroneous, in that, although it purported to cover all the issues in the case, it ignored the defense of defendants. 2 Thompson on Trials, section 2328. This defect was not cured hy instruction number 1 given at the request of defendants. Russell v. Poor, 133 Mo. App-. 723.

<p>1. INJUNCTION: Contempt. Where a party has been enjoined from removing certain buildings from certain lands, at the suit of one claiming ownership in the buildings, or an interest in them, he cannot justify a disobedience of such injunction, in a proceeding for contempt of court, by showing permission to remove from a third party who may have been the true owner of the lands upon which the buildings stood.</p> <p>2. -: -: Procedure. A party duly enjoined by a court of competent jurisdiction from removing buildings, cannot for himself determine the rights of the opposing party by getting permission to remove from a third party claiming to own the buildings. He should have brought into court, by proper procedure, whatever right he claimed had accrued to him 'since the injunction was granted, and sought relief from the writ at the hands of the court.</p>

<p>1. INTOXICATING LIQUORS: Sales: Former Jeopardy. In a prosecution for selling intoxicating liquors on a certain day the state may show a sale on any other day within the period of limitation for such offense, hut if the state offers evidence of several sales and they are 'submitted to the jury and there is either an acquittal or a conviction', none of these can be made the subject of another prosecution.</p> <p>2. -: -: -: Autrefois Acquit. In the trial of a defendant charged with selling intoxicating liquors it was shown by the prosecuting witness that he, as thé only witness for the state, had testified against defendant before a justice of the peace as to two sales made at different times on the same day, and defendant was acquitted. It was held that defendant could not be prosecuted in the circuit court for either of such sales.</p> <p>3. -: -: -: Witness: Evidence. The positive and affirmative testimony of one witness for the state cannot be overcome by the testimony of another state witness who fails to remember.</p>

<p>Appeal from Chariton Circuit Court. — How. John P. Butler, Judge.</p>

— 1Ion. Alonso D. Bnrnes, Judge. It was error for tlie court to sustain the plaintiff’s motion for a new trial. The demurrer'to the evidence was properly sustained. The facts and conditions surrounding the occurrence of which plaintiff complains were testified to by plaintiff herself and show conclusively that plaintiff was guilty of contributory negligence, which caused the injury, if any. Young v. Railroad', 93 Mo. App. 267; Davis v. Railroad, 159' Mo. 7.

<p>' 1. APPELLATE PRACTICE: Bill of Exceptions: Time for Filing Extended. The order of appeal was made at the January term. Appellant was granted leave to file its bill of exceptions at the October term. There were three terms, January, May and October. Respondent contended that, under section 2029 R. S. 1909 (section 728, R. S. 1899) the circuit court had no power to extend the time to file the bill of exceptions beyond the next 'succeeding term of court (the May term). Held, that under section 2029, R. S. 1909, the length of time allowed beyond the term for filing a bill of exceptions must be left, to the sound discretion of the trial court.</p> <p>2. MASTER AND SERVANT: Mines: Statutory Cages: Question for Jury. Plaintiff was employed in mining coal in a newly opened mine operated by defendant. While being hoisted out of the shaft in a temporary box (which was not covered with boiler iron), plaintiff was injured. Plaintiff thereupon instituted this action for the breach of defendant’s statutory duty under section 8456, Revised Statutes 1909, requiring that in every mine operated by shaft the proprietor shall “provide safe means of hoisting and lowering persons in a cage covered with boiler iron.” The defense was that the mine was just being opened, and had not reached the point where it could be classed as a mine in operation, or where statutory cages could be installed and operated. Held,' that whether the statutory duty applied was dependant upon the fact whether or not this was a mine in operation, which was a question for tbe jury.</p> <p>3. -: -: -. This statute being highly remedial, and for the benefit and protection of men engaged in a hazardous occupation must be liberally construed, so as to give ' the greatest effect to its beneficient operations. Therefore, the men employed in mining should have the protection of the statute, just as soon as cages, conforming to the specifications thereof, can be put in successful operation.</p> <p>4. -: -: Question for Jury: Prejudicai Error. Where the question was whether or not the mine was actually in operation, it was prejudicial error to refuse to submit to the jury under proper instructions, the issue whether or not the work had progressed to the point where it was practicable to install statutory cages.</p> <p>5. APPELLATE PRACTICE: Error in Instructions: Bill of Exceptions. Defendant failed to make a preliminary objection to the giving of plaintiff’s instructions, but merely excepted after said instructions were given. Held, that, although the instructions ought not to have been given, the error was not properly preserved in the bill of exceptions. The reason, is that, where the trial court was not given a fair opportunity to correct its error at the time of its commission, it would be most unfair to permit a party to acquiesce apparently in the rulings of the court, and then after day had gone against him to complain of those rulings.</p> <p>6. -: -: -. Where defendant’s instructions were wrongly refused, the defendant properly preserved the error by excepting to the ruling. To require a party whose own instructions are refused, to also make a preliminary objection would be absurd.</p>

— -Hem. J. W, Peery, Special Judge. (1) The court erred in admitting as evidence, over the objection of plaintiff the fact that the Likes Improvement Company had not complied with the law governing foreign corporations for the reasons: First. The defendants were neither parties nor privies to the contract between the city and the Likes Improvement Company and, therefore, had no right to question the validity of the contract. Prendergast v. Richards, 2 Mo.

Appeal -from Schuyler Circuit Court. — How. Nat. M. Shelton, Judge. (1) The court erred in refusing the demurrer tendered at the close of the plaintiff’s evidence. There was no evidence showing or tending to show that the car which is claimed was defective had been defective for any length of time prior to the accident.

— Hon. G. A. Denton, Judge. (1) Defendant had the right to adopt reasonable rules and regulations. Cross v. Railroad, 56 Mo. App. 664; Jones v. Railroad, 17 Mo. App. 158; Railroad v. Vandyne, 57 Ind. 576; Oar Co. v. Reed, 75 111. 130. (2) At the time plaintiff claims to have been injured he was not a passenger. Schepers v. Railroad, 126 Mo. 665; Schaefer v. Railroad, 128 Mo. 71; Rawlins v. Railroad, 97 Mo. App. 515; Omar v. Transit Co., 102 Mo.

— Now. C. A. Mosman, Judge. (1) The work provided for in the ordinance and specifications read in evidence in this case conclusively shows that the work to he done on Sixth .street, and sued for in this case consisted of “repairs” or “repairing.” Sec. 5742, R. S. 18991.

— Hon. Wm. G. Ellison, Judge. (1) The court erred in overruling defendant’s motion to quash the information. Only counties which do not contain a city or cities of 2500 inhabitants or more can adopt the Local Option Law and make the same applicable to the entire county.

CONTRACTS: VIOLATION. A contract for the sale of goods contained provisions that they were to be delivered free on board the cars at destination, and that the seller would advertise 'said goods… Held: that having failed to comply with the terms of the contract, plaintiff was not entitled to recover upon it. Appeal from Randolph Circuit Court. — Eon. A. E. Waller, Judge. (1) Plaintiff’s contention is that the written contract sued on must govern in this suit.

— Ho». James E. Goodrich, Judge. (1) The demurrrer should have been sustained, because there was no evidence of any unusual, negligent or dangerous speed of said car in rounding said curve. Hite v. Railroad, 130' Mo. 132; 2 White on Personal lujuries on Railroads, sec. 661; Pryor v. Railroad, 85 Mo. App. 367; Bartley v. Railroad, 148 Mo-. 124; Allen v. Transit C’o., 183 Mo. 435; Sexton v. Railroad, 98 Mo.

<p>Appeal from Macon Circuit Court. — Hon. Nat. M. Shelton, Judge.</p>

— Eon. John G. Park, Judge. (1) Statements of witnesses contradictory of general knowledge, or opposed to physical facts, or contrary to the operation and effect of natural forces, should not be accepted by any court. Scroggins v. Railroad, 120 S. W. 731; Curley v. Railroad, 104 Mo. 211; Hunter v. Railroad, 23 N. E. 9'; Nugent v. Milling Co., 131 Mo. 241; DeMaet v. Storage Co., 121 Mo. App. 92; Stafford v. Adams, 113 Mo. App. 717.

' — No». G. G. Burton, Judge. (1) The engineer and fireman on the train, that struck Sumner, having been notified only a few moments before that he might be asleep on the track, required of them a vigilant look out for him, and it is a fair inference that they either saw him in time to prevent the injury, or failed to use ordinary care to discover him, and in either event the defendant is liable.

<p>Appeal from. Jackson Circuit Court. — Ho». Herman Brumbach, Judge.</p> <p>(1) The evidence was not admissible as a part of the res gestae. Wigmore, Evidence, secs. 1747,1749;, 1750; Ruschenberg v. Railroad, 161 Mo. 70; Koenig v. Railroad, 173 Mo. 698; Redmon v. Railroad, 185 Mo. 1; Frye v. Railroad, 200 Mo. 377. (2) Tbe evidence was not admissible as an admission against interest. Tbe declaration was not that of an agent, made in the course of dealings -with third parties, but was a report made to his own principal, and not intended for anyone else. It was not, therefore, the admission of the principal, and if an admission at all, it was the conductor’s own admission. Wigmore, Evidence, sec. 1078; Mechem, Agency, sec. 714; Adams v. Railroad, 74 Mo. 553; Redmon v. Railroad, 185 Mo. 1; Sir Robert Wayland’s Case, 3 Salk. 234. (3) The offer made by respondent was insufficient. Wigmore, Evidence, secs. 1078, 2550; 9 Ency. Evid., 165, 171; Craighead v. Wells, 21 Mo. 404; Pier v. Heinriehoffen, 52 Mo. 333; City of Hannibal v. Richards, 35 Mo. App. 1; Clicquot Champagne, 3 Wall. 114; State v. Monich, 64 Atl. 1016; Commonwealth v. Robinson, 146 Mass. 571, 16 N. E. 452; Hock v. People, 216 111. 265, 76 N. E. 356; Parish v. State, 139 Ala. 216, 36 So. 1012. (4) The order sustaining the motion for a new trial cannot be upheld on any other ground than that given by the court. Frye v. Railroad, 200 Mo. 377; Loftus v. Railroad, 119 S. W. 942.</p> <p>(1) Admissions made by the agent while acting within the real or apparent scope of his duties are the admissions of the principal. Meáchain on Agency, sec. 714; Wigmore on Evidence, sec. 1078; Northrup v. Ins. Co., 47 Mo. 435; Adams v. Railroad, 74 Mo. 556, 85 Mo. App. 389; Pitts v. Steel-Co., 75 Mo. App. 221. (2) Such admissions are none the less those of the principal though they ate a part of confidential reports made by the agent to his principal or superior corporate officer. Railroad v. Putnam, 118 U. S. 545; O’Hare v. Railroad, 95 Mo. 662; Rogers v. Bridge Co., 11 App. Div. 141-159 N. Y. 556; LaAbra Silver Co. v. Ut. S., 175 U. S. 223; Carlton v. Railroad, 81 Ga. 531. (3) An admission by an agent, if otherwise competent evidence against the principal, is not rendered incompetent by reason of the fact that the admission involves a conclusion of fact on part of the agent. Pitts v. Steel Co., 75 Mo. App. 232; Cunningham v. Railroad, 79 Mo. App. 524; Railroad v. Edmonson, 110 N. W. Rep. 650; Young v. Railroad, 75 S. O. 190; Railroad v. Transtine & Co., 64 Miss. 834; Lane v. Railroad, 112 Mass. 455; Railroad v. Russell, 88 S. W. Rep.-379.</p>

— Hon. Alonso D. Burnes, Judge. (1) The certificate or award of the board of arbitrators is the sole and only record of the proceedings of the board, and the court will exclude from consideration all other papers attached to and made a part of the return of respondents, for the reason that-they form no part of the record. An award of arbitration is a judgment. School Dist. v. Hodgin, 180 Mo. 148; School Dist. v. Pace, 113 Mo. App. 134; State ex inf. v. Cummins, 114 Mo.

Buchanan Circuit Court. — Bo». L. J. Eastvu} Judge. . (1) Plaintiff’s instruction No. 1 is erroneous for the following reasons: It declared as a matter of law that the defect complained of was not reasonably safe. Garber v. Kansas City,. 105 Mo.

<p>1. PUBLIC UTILITY: Negligence: Damages. Plaintiff sued for injuries received by tripping on the end of an iron pipe protruding four or five inches above the surface of a path in the ¡sidewalk space used by pedestrians on a public street. The iron pipe was put in by the Water Company, or under its rules and directions, as a part of the service in conducting water into the adjoining premise's, the expense of installing the same being paid for by the owner of said premises and those appliances belonging to him as appurtenances of his realty. There was no evidence of defective construction, material or device. Reid, that the duty of using reasonable care to prevent the instrument from becoming a nuisance was on its owner, for whose particular benefit it was being used, and that there was no cause of action against the Water Company.</p> <p>2. -: -: -. The duty of drawing off water from a street main, and conveying it to adjoining premises for consumption, properly rest's on the consumer, and the rule imposing on the consumer the burden of making connection between his premises and the street main is a reasonable regulation.</p>

— Eon. Francis E. Trimble, Judge. (1) The evidence discloses both malice and lack of probable canse. The plaintiff is entitled to recover his actual damages, even if it be held that he has failed to prove malice and lack of probable cause. 3 Am. and Eng. Ency. of Law (2 Ed.), 245; Fry v. Estes, 52 Mo. App. 1; Talbot v. Gt. West. PI. Co., 86 Mo.

— No». Alonso ■ D. Bwnes, Judge. (1) The matters of confession and in avoidance in-plaintiff’s reply was insufficient, and the defendant’s motion for judgment on the pleadings should have been sustained. The conditions precedent to be performed by the plaintiff, were: First. The execution of a general warranty deed on or before the 1st day of February, 1907.

<p>1. MASTER AND SERVANT: Personal Injury: Instructions. Caustic soda in solid block form is not of such common and ordinary use as to justify a court in declaring that as a matter of law a servant knew of its dangerous character.</p> <p>2. -: -: Servant: Knowledge. If a servant has -equal knowledge with the master of the dangerous character of certain material he uses in his work, there is no obligation on the master to inform him.</p> <p>3. -: -: -: -. The master has a right to</p> <p>assume that the -servant is possessed of common sense and therefore has the knowledge common to ordinary men!</p>

<p>1. CONSTITUTIONAL LAW: Peremptory Instruction: Due Process of - Law. Where a trial court trying an action with a jury on a policy of life insurance, hears the evidence introduced by each side and at it's conclusion instructs the jury, peremptorily, that under the law and the evidence the verdict must be for the plaintiff, which verdict the jury renders, the defendant’s property is not taken without due process of law, in violation of the 14th Amendment to the Constitution of the United States, or section 30, article 2, of the Constitution of Missouri; and such action doe's not involve a construction of the Constitution so as to deprive the Court of Appeals of jurisdiction.</p> <p>2. -: -: Issues: Trial by Jury. In such case the defendant is not deprived of the right of a trial by jury, since such a trial cannot be had without legal issues of fact are presented by the evidence and it is for the court to determine as a matter of law, whether the evidence does present an issue for the jury to determine; and though the court’s decision may be erroneous, it is nevertheless due process of law.</p> <p>3. -: •-: Fourteenth Amendment: Governmental Departments. While the Fourteenth Amendment to the Constitution of the United States forbids a state to deprive any person of his property without due process of law, yet such prohibition applies to any agency of the state, whether legislative, executive or judicial.</p> <p>4. -: -: -: Jurisdiction. But if a court has jurisdiction of the person and subject-matter of a case affecting one’s rights of property, all action taken within the limits of that jurisdiction is due process of law. Due process of law being no more than administration of the law through courts of justice in the regular course. And when such action is had it does not present a question involving the construction of the Constitution.</p> <p>5. -:--: -: -. The Courts of Appeal, as well as the Supreme Court, have jurisdiction to decide whether a construction of the Constitution is involved, the controlling jurisdiction being in the latter court through its 'superintending control. But the Supreme Court has exclusive jurisdiction to determine what the construction shall be.</p> <p>6. -: -: -: Motion for New Trial. In order to oust the Court of Appeals of jurisdiction of a case on the ground that it involved a construction of the Constitution, it must -appear in the record that the question was clearly presented at the first opportunity offered in the trial court, and, in some cases, this may be the filing of a motion for new trial, as where the trial court is said to have, deprived a party of his property without du-e process of law by peremptorily instructing the jury to find a verdict for the opposite party.</p> <p>7.--: -: -: -: -. In order that jurisdiction of the Court of Appeals may he ousted on account of a constitutional question, the case must involve a construction of ,the Constitution. The mere invoking a provision of the Constitution by a party in the cause does not necessarily involve its construction.</p>

— Ho». Wm. C. Ellison, Judge. (1) In view of the evidence confined to the altercation on the sidewalk, or outside of defendant’s building, to which plaintiff elected to submit to the jury that issue only, and the instruction given on part of defendant, it is hard to reconcile defendant’s instruction with the instruction given on part of plaintiff.

— How. Alonzo D.. Bwrnes, Judge. (1) The plaintiff, by his amended pleading, stands on the-written contract of shipment and is hound by the terms thereof. He cannot he heard to insist upon one requirement of that contract without adopting the whole of it. ' Shinn v. Mule Co., 109 Mo. App-. 562; Porter v. Woods, 138 Mo. 539; Showinger v. Peabody, 57 Conn. 42; Bailey y. Pardridge, 134 HI. 188; Bissel y. Dowing, 117 Mich. 646-; Osborn v. Jour dan, 52 Neb. 465; Billings v..

— Eon. L. J. Eastin, Judge. (1) The application for a change of venue should have been stricken from the files, in view of the opinion rendered in this cause. 130 Mo. App. 495. (2) Plaintiff’s third (4th) amended petition should have been stricken from the files. A departure from the original petition is unquestionably shown. The original com- , plaint was based on section 4573 and section 650', Statutes 1899; the amended petition is a common law action.

<p>Appeal from Buchanan Circuit Court. — How. L. J. Ea-stin, Judge.</p>

Louis City Circuit Court. — Now. William M. Kinsey, Judge. (1) The duty of the master as to furnishing a safe place is this: It is his duty to exercise ordinary care to furnish the employee a reasonably safe place in which the employee, by the exercise of ordinary care on his own part, can perform the work assigned him with a reasonable degree of safety -to himself, subject only to the risks ordinarily incident to the employment. Ziegenmeyer v. Goetz Co., 113 Mo.

— No». Henry L. Bright, Judge. (1) The notice called for by the law is absolutely essential to the validity of an election. State ex rel. v. Tucker, 32 Mo. App. 627; McPike v. Penn, 5T Mo. 63; Stevens v. People, 89 111. 337. (2) To adopt the Local Option Law there must be four weeks’ (twenty-eight days) notice of the election. Bean v. County Court, 33 Mo. App. 635; State v. Coffmann, 45 Mo. App. 656; State v. Circe, 39 Mo. App. 398.

Louis Circuit Court. — Bo». John W. McElhinney, Judge.. (1 ) Defendant submits that plaintiff’s contention that tbe Wilkinson case, 83 Mo. 235, is not in point, cannot be sustained. Tbe only difference between that case and tbis is that one is a World’s Fair Corporation and tbe other a railroad corporation; but each of them is organized under statutory provisions. (2) It is elementary law that delivery is as essential as signing, and both must be intentionally done.

<p>Appeal from St. Louis Circuit Court. — -Wo#. Robert M. Foster, Judge.</p>

— Now. B. G. Thurman, Judge. (Í) Injunction is the proper remedy. Alberts y. Merchants’ Exchange, 39 Mo. App. 583; Otto v. Journeyman Tailors, 7 Am. St. Rep. 166. (2) When property rights of members are involved, the courts will look into the regularity of the proceedings under which such association acts, and will pass upon the reasonableness of a by-law providing for expulsion. Brickett v. Wells, 117 Mo. 502; 5 Am. and Eng. Ency. Law, 688; Mulroy v. -Supreme Lodge, 28 Mo.

— Hon. J. C. Sheppard, Judge. (1) The court erred in permitting plaintiff to offer any evidence in support of Ms petition over the objections of defendants, that said petition did not state facts sufficient to constitute a cause of action; that it showed on its face that plaintiff went into possession of the land and made the improvements thereon without having a deed ’or other evidence of title thereto.

<p>Appeal from Lawrence Circuit Court. — Hon. F. C. Johnston, Judge.</p>

— Hon. Henry L. Bright, Judge. (1) The master is not obliged to furnish the safest and best appliances or to do the work in any particular manner. He is not an insurer. Sutherland v. Lumber Co., 130 S. W. 40; Saversnick v. Schwarzchild & Sulzberger, 141 Mo. App. 509; Dickerson v. Jenkins, 128 S. W. 220; Brands v. Car Co., 213 Mo. 699‘; Bundle v. Mfg. Co., 189 Mo. 552; Wendell v. Railroad, 100 Mo.

— Hon. John T. Moore, Judge. The court erred in overruling the demurrer to the evidence at the close of plaintiff’s case. The evidence of the plaintiff that many times before he claims the sack busted he had his eyes filled with cement and it did not. affect him, but this one application put Ms eye out was sufficient to authorize the court to take the case from the jury. Warner v. Railroad, 178 Mo. 125; Construction Co. v. Transit Co., 102 Mo.

Louis City Circuit Court.-^ILon. James E. Withrow, Judge. (1) The statute, declaratory of the common law, provides that alimony, pendente lite, may be allowed, “pending the suit for divorce.” R. S. 1899, sec. 2926; McDonald v. Wagner, 5 Mo. App. 56; Long v. Long, 78 Mo. App. 32. (2) The specific question as to the allowance of alimony and suit money in supplementary proceedings after final decree of divorce, has never been decided in Missouri.

— Eon. B. G. Thurman, Judge. (1) Assent and notice of acceptance of an offer need not be formally expressed;- the assent may be given and communicated by conduct as well as by words. Allen v. Cbouteau, 102 Mo. 323; Bruekman v. Dry Goods Co., 91 Mo. App. 466; Niedermeyer v. State University, 61 Mo. App. 654; 9 Cyc. 2701.

— Row. J. G. Sheppard, Judge. (1) If these plaintiffs were compelled to pay a higher rate of compensation for the transportation of their goods from St. Louis, Missouri, to Poplar Bluff, than the defendant at the same time charged for the same service to the more distant points of Dexter and the other points named, they were damaged to the exact extent of such discrimination. They were entitled to at least as good rates as those accorded to the more distant points.

— -Bow. B. G. Thurman, Judge. (1) Plaintiff’s right of action, if any ever existed, was, at the time the suit was filed, barred by limitations. Rosenberger v. Rosenberger, 92 Mo. App>. 27; Smith v. Seattle, 128 Mo. App. 379; Reed v. Painter, 145 Mo. 346.

— Eon. John T. Moore, Judge. (1) Appellants have not filed in this court an abstract such as is required by the rules of this court, and the statutes and laws of the state. R. S. 1909', secs. 2048, 2051; Novinger & Son v. Railroad, 131 Mo. App. 337; Cross v. Henderson, 1291 Mo. App. 537; Clay v. Publishing Co., 200 Mo. 665 ; Harding v. Bedoll, 202 Mo. 625; Greenwood v. Parlin & Orendorff Co., 98 Mo.

— Hon. John T. Mo.ore, Judge. (1) The motion to quash should have been sustained. The information fails to charge that the Local Option Law was in force in Christian county at the time of the alleged sale of the whiskey by defendant. State v. Bengscli, 107 Mo. 104; State v. Searcy, 39' Mo. App. 407; State v. Prather, 41 Mo. App. 458; State v. Hutton, 39 Mo. App. 415; State v. Hall, 130 Mo.

Habeas Corpus. (1) It devolves upon Mr. McCoy, wlio ■ has petitioner in Ms custody under said writ, to show that Ms writ is legal. Ex parte Krieger, 7 Mo. App. 367. (2) It is axiomatic that jurisdiction cannot be conferred by estoppel. Tourville v. Railroad, 61 Mo. App. 527. However, if jurisdiction should be conferred by estoppel it would have to appear that the party estopped was fully aware of the facts and of his legal rights in the premises.

Louis City Circuit Court. — Eon. Matt. G. Reynolds, Judge. (1) The-four essential facts for the plaintiffs to prove in ordér to sustain their claim to an easement by prescription are, first: User for the prescribed period; second, that the user was adverse; third, that it was under a claim of right; and fourth, notice to the owner of the user and of its character and the claim of right. Anthony v. Building Co., 188 Mo. 704.

<p>1. MANDAMUS: Matter Happening After Issue of Alternative Writ: Municipal Corporations: Removal of Officers. Respondents in' a mandamus proceeding have the right to allege things transpiring after the issue of the alternative writ as a reason why the peremptory writ should not issue; so where an alternative writ was served on the members of a board of aldermen to reinstate the relator as city treasurer, or show cause, it was proper in their return to assign as a reason for not reinstating the relator, that he had, since the issuance of the alternative writ, been tried on charges and removed from office.</p> <p>2. MUNICIPAL CORPORATIONS: Officers: Removal of Officers: Appointing Officers. Section 9310, Revised Statutes 1909, plainly provides that as to elective officers the removal must be for cause, but as to appointed officers the removal is at the will or pleasure of the mayor, and a majority of all the members of the board of aldermen, or the appointive officer may be so removed by a two thirds vote of all the members of the board, independent of the mayor’s approval, and this may be done without preferring any charges against the officer.</p>

<p>1. MANDAMUS: Proper Remedy to Restore to Office. Mandamus is an appropriate remedy to compel the restoration of an office to the rightful incumbent thereof, who has been wrongfully deprived of the same by removal or- suspension.</p> <p>2. MUNICIPAL CORPORATIONS: Officers: Mayor: Removal from Office. Under the charter of a city of the fourth class, the mayor is the general officer of the city and has general supervision over all officers of the city and its affairs, and by the terms of the charter he cannot be removed at the pleasure of the council without cause. .</p> <p>3. -: -: -: Removing Mayor from 'Office. The respondents, constituting six out of eight members of the board of aldermen of a city of the fourth class, preferred charges a'gainst the mayor for refusing to recognize the validity of an ordinance providing for a city depository for all the city funds, which they had passed over the mayor’s veto, and on the hearing of these charges the mayor was removed from office. In a mandamus proceeding the ordinance was held invalid and therefore the action of the board in removing the mayor from office was invalid, and he was entitled to be reinstated.</p> <p>4. -: Powers: Statutory Construction. Municipal corporations possess only such powers as are granted in express words, or those necessarily incident to or implied in the powers expressly granted, and if there is a reasonable doubt concerning the existence of power in the charter of a city, it will be resolved against the city and the exercise of the power denied.</p> <p>5. STATUTORY CONSTRUCTION: Statutes in Pari Materia. The object of all interpretation of law is to reach tñe true intent and meaning of the law-making authority. Statutes in pari materia are to be treated as embodied in one section, and considered together in order to elucidate the legislative intent therein enacted, though they are found in different chapters of the Revised Statutes under different headings.</p> <p>6. -: -. Statutes on the same subject, though found in different chapters of the Revised Statutes, under different headings, shall be treated as embodied in one section and considered together.</p> <p>7. -: Legislative Interpretation. In construing a statute the legislative interpretation of the same, though not conclusive, is entitled to weight, and in the passage of laws the Legislature is 'presumed to know the existing state of the laws with which it deals at the time it acts, and is deemed to have dealt with the matter in the light of the laws then existing.</p> <p>8. MUNICIPAL CORPORATIONS: Selecting Depository. The statute in this state authorize cities of the first, second and third class to sfelect depositories for all the city’s funds and a city of the fourth class for its sinking fund only. Gathering the intent of the Legislature from this and other sections, it is evident that it did not intend that the board of aider-men of a city of the fourth class could by ordinance select a depository for the general funds of the city.</p> <p>9. APPEAL AND ERROR: Constitutional Question: Transfer to Supreme Court. It is not the duty of the Court of Appeals to transfer a case to the Supreme Court on the ground that a constitutional question is involved, unless the decision of the constitutional question affects the merits of the controversy.</p>