Volume 230 — Missouri Reports

— Hon. Alonzo D. Bu-rnes, Judge. (1) The second count of tbe indictment charges no offense under the laws of this State, because Sec. 3032, R. S. 1899:, is unconstitutional and void in this: It is in contravention of section 28 of article 4 of the Constitution, in that the bill enacting said section 3032 was leveled at intoxicating liquors, and not against a non-intoxicating beverage; therefore so much of said section as prohibits the sale of a nonintoxicating- beverage is…

— Hon. James B. 'Johnson, Judge.' (1) The court erred in permitting plaintiff, over the objection of the defendant, to testify to his conversation with his wife in the absence of the defendant. As to defendant, such conversation was clearly hearsay, and the evidence was highly prejudicial in character. Leavell v. Leavell, 122 -Mo. App. 654; West-lake v. Westlake, 34 Ohio St. 621; Buchanan v. Foster, 48 N, T. Supp. 732; Rice v. Rice, 62 N. W. (Mich.) 833.

Louis City Circuit Court. — Hon. Wm. M. Kinsey, Judge. (1) Equity eases are beard de novo in tbe Supreme Court, and tbe court will review tbe whole case on tbe evidence. McElroy v. Maxwell, 101 Mo. 294; Benne v. Schnecko, ÍO'O Mo. 2501; Blount v. Spratt, 113 Mo. 48; Lins v. Lenhardt, 127 Mo. 271; Courtney v. Blackwell, 150 Mo. 245-.

Prohibition. (1) An absolute writ of prohibition should issue, because the pleadings herein show that the offense with which relator is charged is a misdemeanor and not a felony. The facts alleged in the indictment constitute the offense defined by Sec. 1853, R. S. 1899. This section has never been repealed.

— Now. Jas. T. Ne-ville, Judge. (1) A will contest is an action at law wherein parties have a right to a trial by jury, and wherein the prerogative of a jury to weigh the evidence (where there is substantial evidence) can no more be usurped than in any other action at law. The question of the weight of the evidence is for the jury. In this case there is not only substantial evidence to take the case to the jury, but it is of a character cogent and convincing..

— Eon. J. L. Fort, Judge. (1) The order of publication by which the court sought to acquire jurisdiction of the heirs was void, because not made returnable at the time required by law. Wagner’s Stats., sec. 25', p. 96; Laws 1869, p. 193; Laws 1865, see. 11, p. 86; Holladay v. Cooper, 3 Mo. 286; Haws v. Clark, 37 la. 355; Calkins v. Miller, 75 N. W. (Neb.) 1108; Young v. Downey, 145 Mo; 260.

— Now. David N. Eby, Judge. There is just one question in this ease. Did the acts and doings of Marian B. Murray, in settling with the prohate court the estate of William Luce, deceased, making the affidavits concerning the settlements, preclude her from showing that Homer L. Murray did not ■pay for this property, and does it preclude her from showing, as the record shows she did do, that she paid every cent that the property was sold for?

— Eon. J. L. Fort, Judge. (1) The judgments on which were made the execution sales under which defendants claim, are void, inasmuch as the court rendering’ them had no authority in law for the rendition of a judgment for an allowance to a garnishee in that kind of proceeding. Mfg. Co. v. Milling Co., 79 Mo.

— -Hoto. E. M. Dearing, Judge. (1) There is no evidence, either admitted or offered, showing who. the legal representatives of Etienne Pepin are. (2) There is no will of Jere W. Clemens shown making the defendants trustees, (a) The copy offered in evidence purports to be that of a will made in California, as to lands in that State, among others. It has nothing to authenticate it, no proof of probate anywhere; nor was any proof offered at trial.

David E. Eby, Judge. (1) The judgment for partition is contrary to the terms of the will and the intention of the testator as expressed therein. It is true that in the second paragraph the will uses the word “desire” in referring to the sale of this land by his executors, but in the third clause it says in substance that the sale of this land is “directed” to be made by his executors.

Prohibition. Three terms after the final decree was entered in the case and with none of the defendants in court, October 22, 1902, the court accepted the resignation of the Lincoln Trust Company as trustee and appointed Caroline Bircher trustee. The court had no jurisdiction to enter this order, and the said judgment appointing Caroline Ponath (nee Bircher) trustee, was and is null and void1. Henry Boemler could not waive service for the defendants.

— Hon. G. A. Mosman, Judge. (1) Defendant’s demurrer to the evidence should have been sustained, and the court erred in refusing same: First, because there was no evidence tending to show defendant was guilty of negligence which caused Van Dyke’s death; second, because all the evidence shows deceased was guilty of negligence which caused his death. Tanner v. Railroad, 161 Mo. 510; Reno v. Railroad, 180 Mo. 469.

— Hon. Louis Hoffman, Judge. (1) The objection that tlie law is violative of section 53 of article 4 of the Constitution of Missouri, prohibiting the enactment of any local or special law “granting to any corporation, association or individual any special or exclusive right,, privilege or immunity” is without force for the reason that that provision of the Constitution was not leveled against laws which apply to a portion of the people of the State as a class.

Prohibition. (1) At common law the sustaining of a motion in arrest of judgment has the effect of putting an end to the case. On this proposition the authorities are uniform. 23 Oyc. Law and Proc., p. 825. And if it does not award a venire facias de novo, it operates as a discontinuance and dismisses defendant without day. 2 Ency.

— Hon. Jas. T. Neville, Judge. (1) The contract or escrow agreement sued on in this case being entirely unilateral, with no consideration to support it, is therefore incapable of being specifically enforced. There is no mutuality of right and remedy finder its terms. The Scotch Land Company could not compel the plaintiffs to perform, and unless each party to the contract can compel the other to perform, then neither can compel the other to do so.

— Hon. Henry L. McCune, Judge. (1) Speculation about the-assessment of benefits is just as wrong as speculation as to assessment of damages. Both are condemned by the law.

<p>Appeal from Jackson Circuit Court . — Hon. Henry L. McCune, Judge.</p>

Louis City Circuit Court. — Hon. Warwick Hough, Judge. (1) The peremptory instruction for the plaintiff was properly given, (a') Excluding the testimony of Johnson, he was still entitled to recover upon the defendant’s own evidence. Delivery is presumed from possession of a note. Pitts v. Sheriff, 108 Mo. 110;-Tapley v. Hermann, 95 Mo, App. 537. . The law presumes a consideration. R. S. 1899, sec. 894; Bogie v. Nolan, 96 Mo.. 85'.

Mandamus. (1) The powers and duties of the Secretary of State in receiving and filing petitions as defined hy the Initiative and Referendum Act are purely ministerial. The act clearly distinguishes between the petitions- submitting a measure and the measure itself.

— Hon. W. B. Teasdale,. Judge. (1) The court erred in allowing the partnership of Gille and Van Peyma to be treated as a legitimate issue in this case; and erred in overruling defendant… Held: whether the third party have notice or not. Midland Nat. Bk. v. Schoen, 123 Mo. 658; Tilford v. Ramsey, 37 Mo. 566; Long v. Story, 10 Mo. 398. (5) And such authority can be shown by a course of dealing between the partners and others, and need not be express authority. Midland Nat.

<p>1. INVALIDITY OF STATUTE: Raised for First Time on Appeal. ."Where plaintiff’s cause of action is founded upon a statute, defendant may for the first time on appeal raise the question of the constitutionality and validity of that statute. The validity of the statute is in the case at all times, because if it is not valid plaintiff has no cause of action, and defendant at every stage of the proceeding has a right to object that the petition does not state a cause of action.</p> <p>2. -: Title: Discrimination In Freight Rates. A statute which prohibits every railroad company in the State from (1) charging for the transportation of property for any distance over its road any larger amount as compensation than is charged by it for the transportation of similar quantities of the same class of property a greater distance over its road; (2) from charging different rates for receiving, handling or delivering freight at different points on its road, or any road used by it in connection therewith; and (3) from charging for the transportation of property over any portion of its road a greater amount as compensation than is charged by it for the transportation of similar quantities of the same class of property over any other portion of its road of equal distance, is not broader than its title, which is: “An act to prevent unjust discrimination and extortion in the rates to be charged by the different railroads in this State, for the transportation of freight on said road.” It cannot be successfully contended that the title contemplates only unjust discrimination, and the act all discrimi-. nations whether just or unjust. The body of the act does not prohibit all discriminations; it does not prohibit just discriminations. It denounces three discriminations, thereby pronounces them unjust, and prohibits them. The title plainly indicated that the body of the act would specify what discriminations were unjust, and not leave it to the courts to sift out just from unjust discriminations..</p> <p>Reid, -by WOODSON, J., dissenting, that the title contemplates only unjust discriminations, and the body of the act, if it refers to discriminations at all, prohibits all discriminations, whether just or unjust; and if it does not embrace discriminations but refers solely to long and short hauls, then it is a clear departure from the title of the act, and is therefore void, because its subject is not expressed in the title.</p> <p>3. -: -: -: Penalty: Declaratory of Common Law. Nor does such title contemplate a statute simply declaratory of the common law, and limiting discriminations to individuals (and not embracing localities) as the common law seems to do, and spending itself wholly in fixing penalties for such discriminations as were at common law unjust. On the contrary, the title says, “An Act to prevent unjust discriminations,” etc.</p> <p>4. -: Contrary to Subsequent Constitution. An act valid under the Constitution of 1865 became invalid upon the adoption of the Constitution of 1875 if the provisions of the act are in conflict with provisions of that later Constitution.</p> <p>5. -: Unjust Discrimination: Constitutional Inhibitions: Expressio Unius, Etc. The Constitution in declaring in section 14 of article 12 that “the General Assembly shall pass laws to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads of this State,” directed the Legislature to enact laws preventing unjust discriminations, but did not restrict its powers to prohibit any discriminations not otherwise by the Constitution of the State or of the United States prohibited or limited. The rule of expressio unius exclusio alterius est cannot be applied strictly to legislative powers, and especially is that true when such command is read, as it must be, in connection with section 12, which says that “it shall not be lawful in this State for any railway company to charge for freight or passengers a 'greater amount, for the transportation of the same, for a less distance than the amount charged for any greater distance; and suitable laws shall be passed by the General Assembly to enforce this provision.” The legislative power of the State is unlimited except as restricted by the State or Federal Constitution; and the enumeration of certain powers in the State Constitution is not to be held to be a denial of other legislative powers in the State.</p> <p>Iield, by WOODSON, X, dissenting, that if the Act of 1872 was intended to prohibit both just and unjust discrimination, it was abrogated and annulled by said sections 12 and 14 of the Constitution, for those two 'sections, when read togeth- ' er, were intended to mean a direction to the Legislature to enact laws that would prevent the abuses therein mentioned, namely, unjust discriminations and extortions in freight and passenger rates, and were never intended to be understood as giving the Legislature an unrestricted power to abolish all discriminations, whether just or unjust, reasonable or unreasonable.' Section 12 literally construed seems to prohibit all discriminations, but if that is its meaning it is in irrecoñcilable conflict with section 14; but if the words in section 12, namely, “It shall not be lawful for any railway company to charge for freight or passengers a greater amount, for the transportation of the same, for a less distance than the amount charged for a greater distance,” are held to me'an the “unjust discrimination and extortion in the rates of freight and passenger tariffs” denounced by section 14, then the two sections are brought into harmony; and that meaning is in harmony with the prior decisions' of the courts, and the other provision of section 12, namely, “Suitable laws shall be passed by the General Assembly to enforce this provision.”</p> <p>6. -: -: -: Illinois Construction. The Act of 1872 prohibiting the charging of different rates for the transportation of the same class of freight equal distances over a railroad, and from charging for the transportation over any portion of the road a greater amount than is charged for the transportation of similar quantities of the same class of property over any other portion of the road of equal distance, and making a violation thereof an unjust discrimination, was a valid act under the Constitution of 1865. And the fact that the Supreme Court of Illinois declared a similar statute to be in conflict with a provision of the Illinois Constitution which was the same as section 14 of article 12 of our Constitution of 1875, subsequently adopted, in that the constitutional provision invested the courts with the power to determine what is an unjust discrimination, and took that power away from-the Legislature, as the Act of 1872 did, does not make the Illinois interpretation of its similar statute binding on this State, for the said section 14 of article 12 of our Constitution is to be read in connection with section 12, and said section 12 destroyed the effect of the Illinois construction of their constitutional provision similar to our section 14, and inhibited all discriminations,- just or unjust.</p> <p>7. -: -: Judicial Questions. Under section 12 of article 12 of our Constitution, declaring that “it shall not be lawful in this State for any railway company to charge for freight or passengers a greater amount, for the transportation of the same, for a less distance than the amount charged for any greater distance; and suitable laws shall be passed by the General Assembly to enforce this provision,” the determination of whether a short-haul discrimination in freight' charges is just or unjust, is not a judicial question. It can become such only when the rates fixed by statute as a whole result in the confiscation of the railroad properties by the public.</p> <p>8. —:-: -: -: Constitutional Right: Reasonable Compensation. A railroad company has no constitutional right to discriminate between either individuals or localities, and under the U. S. Constitution the State has the constitutional power to prohibit all such discriminations. A railroad company does not have the same right to a decision of the courts upon the question as to what is just discrimination that they have upon the question as to what is reasonable compensation for property-taken for public use or for the use of property already devoted to public use. A declaration by the legislative power of the State that any discriminations in freight charges are unjust, as the State has declared in the Act of 1872 and section 12 of article 12 of its Constitution, is not in conflict with section 1 of article 14 of the Amendments to the U. S. Constitution, and that section, in reference to due process of law, has no application to such a declaration.</p> <p>9. STATUTE: Repeal by Implication: Rule Fixed by Act Itself. Where the later statute says in one section that “this act is not intended to repeal any law now in force, unless in direct conflict therewith, but is intended to be supplemental of such laws,” there is no room for repeal by implication. In the face of this particular and specific rule established by the Act of 1887 itself, there can be no repeal under any general rule for the construction of statutes. Both must stand unless they are in direct conflict.</p> <p>Held, by WOODSON, J., dissenting, that the said rule announced in the statute is of no controlling effect; but on the contrary shows the Legislature itself recognized that the act was in necessary conflict with the Act of 1872, and therefore was meant to he understood as repealing that statute.</p> <p>10. -: -: Acts of 1872 and 1887: Discrimination in Freight Charges. The Act of 1887 forbids a railroad company to receive “any greater compensation in the aggregate for the transportation of like kinds of property under similar circumstances and conditions for a shorter than a longer distance over the same line in the same direction”; while the Act of 1872 prohibits it to receive for the transporation of property any greater amount as compensation than is charged for the transportation of the same class of property over a greater distance upon the same road, without regard to directions or circumstan- ' ces or conditions, and therefore, they are not in direct conflict. A shipper might found an action upon the violation of the Act of 1872., and a different action upon that of 1887, or he might found an action upon both, his right depending upon the different conditions; but different statutes do not conflict because they establish the same right or provide redress for the same wrong.</p> <p>Held, by WOODSON, X, dissenting, that section 14 of article 12 of the Constitution commanded the Legislature to enact laws prohibiting unjust discriminations and extortions in freight and passenger rates, and section 12 meant no more than that; and the Legislature having enacted the Act of 1887, in obedience to section 14, that act should be held to be a complete substitute and repeal of the Act of 1872, since it covers the whole subject-matter, and fixes a different rule of action.</p> <p>11. -: -: -: Penalties. Nor does the fact that the penalties created by the two acts are different bring them into conflict. In order to enforce the penalties prescribed by the Act of 1887 for a violation of the short-haul clause, it is necessary to allege and prove that the shorter and longer hauls were made in the same directions and under similar conditions. But those allegations and proofs are not needed under the Act of 1872, and in a proceeding to enforce its penalties it would be no defense to establish the facts making defendant liable for the penalties prescribed by the Act of 1887.</p> <p>Held, by WOODSON, X, dissenting, that a person cannot be guilty under one statute and innocent under another. The Act of 1872, which prohibits all discriminations in freight rates, just and unjust, under all conditions and circumstances, and punishes a violation thereof by a forfeiture of $1000 to the' party aggrieved, cannot be reconciled with the Act of 1887, which does not prohibit all discriminations, but only unjust ones, and then only when the circumstances and conditions are the same and when the hauls are in the same direction, and fixing a fine of $5000 to go to the school fund. The Act of 1872 is in necessary conflict with the Act of 1887, and was, therefore, repealed by it.</p> <p>12. CONSTITUTIONAL RIGHT: Self-Enforcing. If a right be clearly created by the Constitution it can be enforced without legislative action. If the Constitut'on creates the right, the courts will find a remedy, and will not permit the' Legislature-to destroy the right by failure to act, or by affirmative action.</p> <p>13. -: -: Discrimination in Freight Rates: Recovery of Excess. Section 12 of article 12 of the Constitution, declaring' that “it shall not be lawful in this State for any railway company to charge for freight or passengers a 'greater amount, for the transportation of the same, for a less distance than the-amount charged- for any greater distance; and suitable laws-shall be passed by the General Assembly to enforce this provision,” is and was self-enforcing; and a shipper may recover the excess of charges in violation of said constitutional provision,, from a railroad company which charged him higher rates per ton for the transportation of freight for certain distances over its road than it charged for the transportation of property of the same class a greater distance over its road, without the aid of the Act of 1872 or any other statute.</p> <p>Held, by WOODSON, J., dissenting, that said section 12 cannot be held to be self-enforcing and give any possible effect to section 14 of article 12 and the Act of 1887 passed in-pursuance to section 14, for section 14 commanded the Legislature to enact laws prohibiting unjust discriminations, and if section 12 is self-enforcing it, standing along, prohibits all discrimination in freight charges just and unjust, and therefore section 14 required the doing of a useless thing.</p>

Louis City. Circuit Court — Hon. Chas. G. Allen, Judge. (1) Where the words complained of as libelous are susceptible of two meanings, one harmless and the other defamatory, the jury must determine in which sense the readers may have understood them. Constitution, art. 2, sec. 14; Julian v. Star Co., 209 Mo. 35; McGinnis v. Knapp, 109 Mo. 131; Caruth y. Richardson, 96 Mo. 190 ; Johnson v. Dispatch- Co., 2 Mo.

A. W. Lincoln,. Special Judge. The gist of this offense is the false and fraudulent representations made by the defendant. Therefore these must be clearly established. State v. Dines, 206 Mo. 675.

— 71 on. Thos.' F. Ryan, Judge. (1) Instruction seven as given by tbe court fails to declare the law correctly on tbe question of good character-.

— Hon. David H. Eby, Judge. (1) The information is sufficient in form and substance. R. S. 1899, sec. 1837; Sherwood’s Criminal Law, p. 86; Kelley’s Criminal Law, sec. 535; State v. Houx, 109 Mo. 658; State v. Burries, 126 Mo. 566. (2) All exceptions taken during the trial of a cause must be preserved in a bill of exceptions filed during the term of court at which they were taken, or within such time after the expiration of the term as the court may grant.

— No». Ralph 8. Latshaw, Judge. (1) There are no exceptions saved to the action of the court in the admission or rejection of evidence over the objection of the appellant. Therefore, the objections to the evidence made by the appellant cannot be reviewed in this court. State v. Noland, 111 Mo. 492; State v. Barrington, 198 Mo. 76. (2) It is not necessary for the court to define in its instructions to the jury the-term “false pretense.” State v. McChesney, 16 Mo. App. 269.

— Hon. T. C. Johnston, Judge. Under such circumstances it was the duty of the court to instruct the jury that the defendant had the right to use such force as seemed to him (defendant) to he reasonably necessary in the premises to maintain his authority, and conduct his prisoner to a place of arraignment and trial, when his lawful authority was assailed or a rescue attempted, and this the court did not do. in instruction 4. State v. Dierberger, 96 Mo. 666.

Louis City Circuit Court — Hon. J. Hugo Grimm, Judge. (1) The indictment in this case is fatally defective, and defendant’s motion to quash should have been sustained.

Circuit Court. — Hon. A. H. Waller, Judge. (1) The court erred in giving instructions 1, 2 and 3 for the State. They submitted a question of fact not shown by the evidence, namely, that the defendant received into his possession money, when the evidence showed that he received checks. State v. Wissing, 187 Mo. 96; State v. Mispagel; 207 Mo. 574; Commonwealth v. Wood, 142 Mass. 4591.

— Hon. W. N. Evans, Judge. (1) The information is valid and sufficient. The first count was drawn under sec. 1847, R. S. 1899, and the second count under sec. 1848, R. S. 1899. The jury found the appellant guilty under the second count; therefore the first count is not before the court for consideration or review. State v. Hendrickson, 165 Mo. 265; State v. Bond, 191 Mo. 568; State v. Havens, 95 Mo. 167; State v. Munson, 76 Mo. 109.

Clair Circuit. Court. — How. Chas. A. Denton, Judge. (1) It is necessary to allege and prove the ownership of the house alleged to have been burglarized and the ownership of the chattels alleged to have been stolen, at the time of the theft. State v. Jones, 168 Mo. 398; State v. Kelley, 206 Mo. 685; State v. James, 194 Mo. 268; State v. Horned, 178 Mo. 59; State v. Pollock, 105 Mo. App. 277; State v. James, 133 Mo. App. 300.