Volume 266 — Missouri Reports

— Eon. John M. Williams, Judge. (1) The court erred in finding for respondents because there was no evidence that Archie Drake was the natural father of Ida Garnett, who claims to inherit from him by reason of the law of descent and distribution, but the evidence was to the contrary. Sec. 341, R. S. 1909'; Mooney v. Mooney, 244 Mo. 390 ; Rocking-ham v. Mount Holly, 26 Yt. 653; '5 Cyc. 632, 633, 634.

<p>1. MANDAMUS: No Plea to Return. Unless relator pleads to respondent’s return to an alternative writ of mandamus, either by motion for judgment on the pleadings, demurrer, answer, or such other proper plea as will join an issue for determination, especially where the return sets up material facts in conflict with the allegations in the writ, the alternative writ will be discharged and the proceedings dismissed. The statute (Sec. 2547, R. S. 1909) requires relator to “plead to or traverse all or any material facts contained in such return,” and unless there is some appropriate plea no issue is joined or is raised for determination; and such has been the law since the revision of the statutes in 1845 (R. S. 1845, Ch. 112), and by them the common-law practice of bringing proceedings by mandamus to an issue was superseded.</p> <p>2. -: -: Neglect to Plead. Where the cause has been pending in the Supreme Court after respondent’s return a sufficient length of time to have enabled relator to plead to said return, and he has not filed any pleading to bring the cause to an issue or attempted to obtain further time in which to plead, the alternative writ will be discharged.</p>

<p>1. PRACTICE: Foreign Tort. In a suit in a circuit court of this State for damages resulting from a tort committed in another State, all matters of practice are governed and must he determined by the laws of this State.</p> <p>2. DEFINITION: Due Care: Negligence. Due care is a care adjusting itself to the circumstances of the case, and negligence is the absence of that care.</p> <p>3. ALIGHTING FROM CABOOSE: Stock'Train: Caretaker. A caretaker, who accompanies and rides in a stock car in a freight train for the purpose of caring for the animals, and who leaves it when it stops in the terminal yards to go to the caboose for the purpose of obtaining a block with which to repair a partition in that car, may alight from the caboose anywhere it may be standing within the limits' of the yard, unless some local element of unsuitability should appear.</p> <p>4. -: -: -: Contributory Negligence. A caretaker, who is authorized by his transportation contract to ride in the stock car for the purpose of caring for the animals, and who, when the train stops in terminal yards finds that a partition in the car needs repairing and is told by a trainman that he can obtain the block he needs at the caboose, which is the next car, and thereupon leaves his car and safely enters the caboose, and while there, without his knowledge or the knowledge of the experienced brakem'an also present, the caboose is moved to an undecked open bridge fifty feet high, of which he knows nothing, and having, four or five minutes later, received the block, and not knowing or being informed that the caboose is on the bridge, turns and leaves it by way of its steps, the time being dark and there being no lights which enable him to see the situation, is not, guilty of contributory negligence in stepping oif into the dark abyss.</p> <p>5. -: -: -: Negligence of Railroad. A railroad company, which, for its own profit, requires shippers of stock and their caretakers, strangers to its road and yards, to care for the stock in transit, and to get on and off the cars whenever and wherever necessary for that purpose, in the nighttime as well as by day, and without reference to the stations used for receiving and discharging other passengers, the inducement being more of a command than an invitation, is in duty bound to exercise a care for the safety of - such caretakers as broad as the peculiar conditions and dangers attending their rightful movements; and does not exercise the high degree of care that the law exacts from a. carrier for the protection of the lives of its passengers, when it permits its caboose, which it has invited such caretaker in the performance of his duties to enter, while standing in a place of safety,, to be run upon an open bridge over a rocky canyon forming a part of its terminal yards, without warning or other notice of the situation to the caretaker.</p> <p>6. EXCESSIVE VERDICT: Under California Statute: $18,000. The statute of California authorizes the' heirs of one negligently killed to recover “such damages as under the circumstances of the case may be just;” and the courts of that State have held that these words confine the recovery to pecuniary damages .alone, but that these do not consist simply of compensation for the destruction of legal rights, but include also the loss to the heir of the society, comfort and care of deceased, and the destruction of those kindly relations of which the heir has the moral right to expect the continuance. Held, that a verdict-for eighteen thousand dollars for an aged and infirm widow, who lived alone with deceased, an unmarried son aged forty-seven years, a lawyer whose income was from $2500 to $3000 a year, domestic in his habits, spending all his evenings with her and supporting her entirely from his own income, negligently killed in- California, is too large by eight thousand dollars.</p>

<p>SUPREME COURT: Publication of Docket in Newspaper. The publication of the docket of the Supreme Court or of any division thereof, in a local newspaper or any newspaper, at public expense, is not required by the statute. The amendment of the statute in 1889 (Sec. 2079, R. S. 1909) took away the necessity for such publication. It is, therefore, ordered that the clerk shall not hereafter cause the docket to be published in a newspaper at public expense.</p>

<p>Appeal from Clay Circuit Court. — Hon. Frank P. Div&lbiss, Judge.</p>

— Hon. Ralph 8. Latshaw, Judge. (1) In a trial for embezzlement of money, admission of evidence tending to prove the embezzlement of any other property is érror, and the admission of irrelevant or immaterial evidence which in its effects tends to injure the defendant in his material rights is error.

<p>1. EVIDENCE: Homicide: Corroboration of Irrelevant Statements. Copies of a periodical and catalogue found among deceased’s effects, the one advocating free love and the other containing a price list of articles designed to prevent conception, are not admissible for' the purpose of corroborating defendant’s testimony that she believed deceased had taken away her unmarried sister-in-law for immoral purposes, or of elucidating the state of her mind at the time she shot deceased.</p> <p>2. INSTRUCTION: Defining Heat of Passion. An instruction for murder in the second degree is not erroneous because it does not define the phrase “heat of passion.”</p> <p>3. -: Homicide: Manslaughter in Fourth Degree: No Provocation. The giving of an instruction for manslaughter in the fourth degree is authorized only when the evidence shows that an assault has been committed or personal violence has been inflicted upon defendant, either of which constitute what is termed “lawful provocation,” the presence of which will reduce murder to manslaughter. But testimony that deceased had seduced defendant’s unmarried sister-in-law, who had been a member of her household; that he had placed pernicious literature in her hands, that he had abducted her from defendant’s home under promise of marriage and had returned without her, or his remark to defendant when she made inquiry concerning her sister-in-law just before the shooting that he had taken her to a place to have pleasure with her, is not evidence of lawful provocation, and will not authorize an instruction for manslaughter in the fourth degree.</p> <p>4. -: Mental Incapacity: Covered by Others Given. It is unnecessary to give an instruction submitting to the jury the question of defendant’s mental capacity necessary to relieve her from liability for the commission of a crime, if the court has already at the request of the State given an instruction properly presenting the entire matter.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Rhodes E. Gave, Judge.</p> <p>(1) Though there is some confusion in the authorities the plea of res judicata (construing it to be a plea of autrefois acquit) is not sufficient in form. Kelley’s Criminal Law and Practice (3 Ed.), sec. 235; King v. Wildey, 1 Maulé & Selwyn, 183, 105 Eng. Rep. 69; State v. Heath, 8 Mo. App. 101; 2 Bishop’s New Crim. Proc. (2 Ed.), secs. 810, 814, 815; Bishop’s Di rections and Forms (2 Ed.), see. 1043, 95; 2 Hale P. C. 243; Crocker v. State, 47 Ga. 568; 'Smith v. State, 52 Ala. 407; Zinn v. State, 117 S. W. 136; Washington v. State, 32 S. W. 694; Queen v. Austin, 2 C.ox’s C. C. 59 (contra — no discussion). (3) The demurrer was properly sustained. McIntyre v. Commonwealth, 154 Ky. 149; Kinney v. State, 45 Tex. Crim. R. 504 (contra), 48 L. R. A. (N. S.) 207 (note), (a) The habitual criminal act is not a distinct crime; it neither compels or forbids any act, but merely fixes a method of punishment applicable to all crimes. It is therefore unique in criminal legislation, (b) Joinder of a charge under the Habitual Criminal Act does not make the indictment bad for duplicity. People v. Boyd, 64 Cal. 153; State v. Moore, 121 Mo. 514. (c) If the habitual criminal charge becomes unavailable the State can proceed upon the indictment as for a charge of a first offense. People ex rel. v. Clancy, 163 App. Div. (N. Y.) 616. (d) The habitual criminal charge may be upon an act committed outside the State. McDonald v. Commonwealth, 173 Mass. 322. (e) Likewise, it may be for an act committed before the habitual criminal act was enacted. People v. Raymond, 96 N. Y. 38. (f) In California, by statute, if the defendant admits the prior conviction that portion of the information is neither read to nor considered by the jury. People v. Carlton, 57 Cal. 559. (g) In Louisiana the previous conviction should not be charged in the information and is only considered by the judge in passing the sentence. State v. Hudson, 32 La. Ann. 1052.</p>

— Hon. Ralph 8. Latshaw, Judge. (1) On its face said confession shows it was not voluntary. The evidence shows it was not voluntary.

Louis City Circuit Court. — Hon. Thomas G. Henning, Judge. (1) The evidence upon the part of the State was inadequate to support the allegations of the information and defendant’s requested instruction at the close of the State’s case should have been granted. • (2) The ■ definition of “culpable negligence” given in the instructions is erroneous and vitiates all the instructions.

<p>1. EVIDENCE: Unprobated Will: No Objection. An unprobated will is not competent evidence of title; but if it is offered and admitted without objection, and there are facts in the record which amount to more than an inference that it had been probated, the trial court will not on appeal be convicted of error in admitting it.</p> <p>2. PARTIES: Deceased Devisees: Ejectment: Judgment for Whole. Where plaintiffs claim title through a will which devised one-third of the land in fee to his widow, who has died since the suit began, a judgment which gives the whole of the land to the descendants of testator’s deceased son and only other devisee, is erroneous, unless there is a showing that said son was the only child of said widow and that she died the - owner of said one-third and intestate as to him, or if testate that she devised the land to him or his descendants.'</p> <p>3. EJECTMENT: Identity of Names. From identity- of name prima-facie identity of person is to be presumed; but this primafacie case of identity is liable to be shaken by the slightest proof of facts which produce a doubt of identity.</p> <p>4. -: -: Reyes for Keyes: Deed Contradicted by Index. If the only proof to contradict the record of a deed made in 1859 showing E. N. Reyes to be the grantee is the record index showing E. N. Keyes to be the grantee, a judgment in ejectment for the heirs of E. N. Keyes cannot stand. The deed in such case would be the best evidence. But proof aliunde may be made that the deed was erroneously recorded, or that the name upon the record is Keyes and not Reyes, and that the apparent discrepancy arises from the age in the record or from blind writing; and if such proof of a substantial character is made, then the index is competent as a circumstance.</p>

<p>1. CONVEYANCE: Wrongful Delivery: Unauthorized Opening of Letter. The owner of land resided in Cincinnati, and his agent and brother resided in Missouri and was sick at the house of a friend and while there some kind of a trade was made for the land. The -agent wrote the owner to make out a deed for the land, naming his host’s son as grantee, inclose it in an envelope addressed to the agent, and inclose that envelope in another addressed to the agent’s host. That was done, and when the letter was received by the host he opened both envelopes and immediately placed the deed of record without the knowledge or consent of either the agent or owner. Held, that the possession and record of the deed was wrongful, but that does not determine the rights of a subsequent innocent purchaser for value, even though the deed itself has been cancelled for non-delivery.</p> <p>2. -: -: Good Faith of Subsequent Purchaser. A purchaser for a valuable consideration from the apparent record owner in possession of the land, with no knowledge that the deed to the apparent owner had been wrongfully obtained by him and placed of record without the owner’s knowledge or consent, and with no such knowledge as would put him on inquiry, is not chargeable with bad faith. Nor does the fact that he had heard, before he made a loan on the land, that such apparent record owner had gotten a farm at a bargain, impugn his good faith in making the loan.</p> <p>3. -: -: Estoppel: Depositary: Violated Confidence: Innocent Third Parties. No title passes to the grantee who wrongfully obtains or steals a fully executed deed and places it of record; but the grantor, as to subsequent grantees, may be estopped to dispute the validity of a conveyance by said grantee, by the conduct of the grantor in placing a fully executed deed in the hands of the father of such grantee, as his depositary, or by the conduct of the grantor after he knew such deed had been delivered and placed of record. So that where the owner’s agent, residing at the residence of the grantee’s father, wrote the owner to make out a fully executed deed, inclose it in an envelope addressed to the agent and inclose that in another envelope addressed to the father, and that was done, and when the letter came both envelopes were opened by the father and the deed immediately placed of record without the knowledge or consent of the grantor or his agent, and the agent learned the facts soon after the deed was placed of record ' and the grantee and father went into possession and while in possession borrowed $1500 from defendant, who knew nothing of the fraudulent facts, and secured the loan by a deed of trust on the land, and the plaintiff (the Original grantor) knew for six months before defendant made the loan and obtained the deed of trust that the undelivered deed had been recorded, the plaintiff is estopped to dispute the validity of the deed of trust, because (1) he is chargeable with the knowledge of his agent who was in chai'ge of the land at the time the deed was obtained, and (2) because he made the grantee’s father the depositary of the deed and if he violated his confidence innocent third parties should not suffer, and (3) because he did not take prompt action, after he knew the deed had been recorded, to divest the grantee of his apparent record title.</p> <p>4. -: -: -: Prompt Action. The real owner of land cannot knowingly permit the title to stand upon the record in the name of another, and then defeat a mortgage placed thereon by such apparent owner, if the mortgagee acts in good faith and without knowledge of the true facts in taking the lien. A delay of six months by the grantor after he discovers that his fully executed deed had surreptitiously and wrongfully, without actual delivery, been placed of record, to bring proper proceedings to have the title divested out of the grantee, will estop him from enforcing his title as against a mortgagee who, without any knowledge of the fraud, in good faith in the meantime loans money to the apparent record owner.</p>

Louis City Circuit Court. — Hon. G. C. Allen, Judge. (1) When the ordinance was passed, vacating the alley in question, the city of St. Louis, by the charter then in force, was vested with full power “to establish, open, vacate, alter, widen, extend, pave or otherwise improve, and sprinkle, all streets, avenues, sidewalks, alleys, wharves and public grounds and squares and provide for the payment of costs and expenses thereof, in the manner in this charter provided.” Former…

<p>WITNESS: Competency: Tort: Death of Tortfeasor. Section 6354, Revised Statutes 1909, declaring that where one of the original parties to a cause of action in issue and on trial is dead, the other party to such cause of action shall not he admitted to testify, applies to actions ex delicto; and, therefore, where plaintiff sues a railroad company to recover damages on account of personal injuries claimed to have been inflicted upon him, in the form of an assault, by an alleged agent of defendant, while acting within the scope of his employment, and thereby created the cause of action, and said agent is dead at the time of. the trial, the plaintiff is not permitted under the statute to detail in evidence his version of the controversy and the assault made upon him. [Approving Leavea v. Southern Railroad Co., 171 Mo. App. 24, and disapproving Drew v. Wabash Ry. Co., 129 Mo. App. 459.]</p>

<p>1. PARTY TO ACTION: Against Interstate Carrier: Negligent Death of Employee: Wife or Administratrix. An action for damages for the negligent killing of an employee of a railroad company engaged, at the very instant of his negligent injury in this State, in interstate commerce, should, in view of the Employers’ Liability Act of Congress, be brought by decedent’s legal representative, and cannot be maintained by his widow in her individual name.under section 5425, Revised Statutes 1909. The action does not accrue to her as an individual, but accrues to decedent’s legal representative.</p> <p>2. -: -: -: -: Waiver: By Failure to Plead. Nor did the railroad company waive the point that the action for damages was wrongfully brought in the widow’s individual name, instead of in her representative capacity, as decedent’s administratrix, by failing to plead the Federal Employers’ Liability Act in bar to the action, or by proceeding to trial as if the action had been properly brought and prosecuted under the State statute, if the petition alleged the railroad company was an intrastate carrier, and the answer was, among other pleas, a general denial, for such an answer raised the issue of the company’s intrastate character.</p> <p>3. PLEADING: Office of General Denial. Under the Code of Missouri the function of a general denial is simply to put in issue the facts pleaded in the petition, not the liability.</p> <p>4. -:-: Corporation: Pleading Under Oath. A charge in the petition that defendant is a corporation is taken as true, unless defendant denies the same under oath. But an answer unaccompanied by such oath admits only the defendant’s corporate existence; it does not admit the character of the corporation, such, for instance, that it is an intrastate carrier.</p> <p>5. PARTY TO ACTION: Against Interstate Carrier: Scope of Federal Employers’ Liability Act. The Employers’ Liability Act of Congress completely covered the subject of the liability of an interstate carrier to its employees, and superseded all State statutes on the subject; and as it provides that an action for the negligent killing of such an employee accrues to his legal representative, the State statute, authorizing such action to be brought by his widow, is no longer operative, but as to interstate carriers has been pro tanto repealed by the exercise by Congress of its constitutional power to regulate commerce among the States.</p> <p>6. -: -: -: Waiver. Nor can such superior power of Congress be waived, for said Employers’ Liability Act gives to the legal representative of the negligently killed employee of the interstate carrier a cause of action, and the undisputed facts being that defendant is an interstate carrier, a petition alleging it to be an intrastate carrier states no cause of action under superseded section 5425, Revised Statutes 1909.</p> <p>Held, by GRAVES, X, concurring, that the right of the widow to recover damages for the negligent killing of her husband is purely statutory, and is given her by the State statute; but the Employers’ Liability Act of Congress, as to interstate carriers and their employees, superseded and pro tanto repealed that statute, and left to the widow no cause of action, but declared such cause of action should accrue to his legal representative; and therefore a petition which alleges defendant railroad company was an intrastate carrier and names her, as his widow, in her individual capacity, as plaintiff, states no cause of action, when it. is shown that defendant is ah interstate carrier.</p> <p>7. -: -: -: -: Raised by Demurrer, Etc. Whenever a petition fails to state facts sufficient to constitute a cause of action under the law, that vice may be taken advantage of by demurrer, or objection to the introduction of testimony, or by any other appropriate plea filed at any time in any court in which the case is pending.</p> <p>'8. -: -: Federal Employers’ Liability Act: Not Pleaded: Waiver. Nor does the interstate defendant waive -the supremacy of the Federal Employers’ Liability Act and its control of the suit for damages for the negligent killing of its employee, by not pleading it and by trying the case as if properly brought and prosecuted under the State statute, for the reason such act is a public act, of which all courts must take judicial notice, and being such it is not necessary to plead it, and for the further reason that the act having superseded the State statute on the subject, no cause of action exists without it.</p> <p>9. -:-:-: Waiver: Pleading Contributory Negligence. The plea of contributory negligence by the interstate carrier is not inconsistent with the Employers’ Liability Act of Congress. Under it contributory negligence can be shown in mitigation of damages, and therefore must be pleaded; while under the State statute contributory negligence is a defense.</p> <p>10. -: -:-: Change in Pleading. It was not the design of the Federal Employers’ Liability Act to change the principles and forms of pleading, especially where the case is brought under that act in a State court.</p>

<p>1. CONSOLIDATED SCHOOL DISTRICT: Signers of Petition: Residence. The petition to the county superintendent for the establishment of a consolidated school district under the Act of March 14, 1913, Laws 1913, p. 721, is not required to be signed by qualified voters of every, existing district to be affected. The statute requires the petition to be signed by twenty-five qualified voters of the community, and a “community” may include several districts or parts of districts, and as used in the statute means resident citizens .of a locality in more or less proximity.</p> <p>2. -; inclusion of Parts of Districts Not Named in Petition. The statute does not require that the petition for the establishment of a consolidated school district Shall fix absolutely its boundaries. The county superintendent is given authority to include within its boundaries parts of existing districts not named in the petition.</p> <p>3. -: -: Infringment of Constitutional Right. There is no infringement .upon the constitutional right of an existing school district by taking from it a part of its territory and including it within the boundaries of the consolidated district proposed to be formed, without giving to the voters of the part not taken the right to vote on the question of organization of the consolidated district. The Legislature is given the power to provide methods of forming new districts, changing the boundary lines of old ones and dividing existing districts.</p> <p>4. -: Voters. The voters within the consolidated school district as bounded by the county superintendent are entitled to vote on the question of the organization thereof, and the statute gives no persons outside that territory the right to object because he was not consulted.</p> <p>5. --: Certification: Addressed to County Clerk. The statute does not require the certificate showing the proceedings of the meeting by which the organization of the consolidated school district was affected, to be addressed to the county clerk. It simply requires the proceedings of the meeting to be certified to him.</p> <p>6. —-:--: The Word “Certify.” The word certify is not indispensable to a certificate. It means to give certain knowledge or information, or to testify with certainty in writing.</p> <p>7. -:-: Sufficiency. A written statement setting forth the place and time of the special meeting called hy the county superintendent to pass on the question of the organization of a consolidated school district, that the qualified voters met as per' the call, that they were called to order hy said superintendent, that a certain voter was elected chairman and another secretary, that the chairman ordered a ballot taken on the proposition, that it resulted in so many votes for consolidation and so many against, and that six directors were elected, etc., and signed by the chairman and secretary and sworn to by them, contains the facts required to be certified by the statute, and is not insufficient as a matter of law.</p> <p>8. --: Construction of Statute. No strict or technical construction is to be put upon the statute authorizing the organization of consolidated school districts. It was designed as a workable method by plain, honest, worthy citizens not specially learned in the law.</p> <p>9. -: Policy of Statute. As long as the Legislature violates no constitutional restriction upon its acts, the wisdom of any act is not subject to review by the courts; nor can the courts consider the policy of an act authorizing the consolidation of school districts when applied to sparsely settled communities, or when applied to a single district already organized which contains a large part of the voting population in the community or territory affected by the proposed consolidation.</p>

<p>1. TRUST COMPANY SECURITIES: Depositary: State Bank Commissioner. By the Act of March 25, 1915, repealing articles 1, 2 and 3 of chapter 12, R. S. 1909, and all intervening acts, ,and enacting three new articles in lieu thereof, the duties theretofore imposed upon the Superintendent of Insurance, as custodian of the securities required of trust companies as a guaranty of the proper performance of the business they are permitted by law to carry on, are transferred to the Bank Commissioner, and the securities required should now be deposited with said officer, and if heretofore deposited with the Superintendent of Insurance they should be transferred to the Bank Commissioner, upon condition of liability for any intervening obligation.</p> <p>2. -: -: -: Transfer Upon Condition. But such transfer should be made only upon the filing of a statement by the trust companies, both with the Superintendent of Insurance and the Bank Commissioner, that the deposit heretofore made with the Superintendent of Insurance shall be subject to any charges or liens which have arisen out of the obligations or business transacted by the trust companies since such deposit was made.</p>

Mandamus. (1) If there is any doubt as to the meaning of the statutes or ambiguities in their provisions, the court will construe the various provisions so as to avoid public inconvenience. (2) The court should look at the history of the times and all the surrounding circumstances in order to ascertain the scope and the purpose of the act creating the State Capitol Commission Board.

<p>1. APPEAL: Failure to File Abstract: Penalty. Where appellant has in due time filed with the clerk of the Supreme Court a short-form transcript of the judgment and order of appeal, but has failed to file or serve respondent with a printed abstract of the entire record within the time prescribed.by the rules of the court, the order of the court will be a dismissal of the appeal, and not an affirmance of the judgment; and that must be the holding despite the fact that respondent urges that complications may arise as to the liability of sureties on the supersedeas bond, if the appeal is dismissed. [Refusing to follow or discuss Mattenleé v. Mattenlee, 74 S. W. 889, because it does not appear to have been officially reported or authoritatively promulgated.]</p> <p>2. -: -; Affirmance: Statutory Requirement. The affirmance of the judgment appealed from provided by section 2047, Revised Statutes 1909, was not intended necessarily to follow a failure to file a proper abstract within the time prescribed by the rules of the court. The right to affirmance, as prescribed by that statute, seems to have been made to depend upon a failure of appellant to file a complete transcript or a certificate of the judgment and order of appeal in the appellate court, etc., within the time prescribed by section ■ 2048.</p> <p>3. -: -: -: Rule of Court. The rules of the Supreme Court made under the direct authority of a statute, have practically the binding force and effect of a statute. And while the court has power to change its rules, the change ought to be in substance, and the rule should not be nullified by a collateral attack.</p> <p>4. -: -: Penalty Fixed by Rule of Court. There being no specific penalties attached by section 2048, Revised Statutes 1909, to a failure of appellant, who has in due time filed a short-form transcript, to file a printed abstract in time, the court is empowered to fix the penalties by rule of court; and Rule 16 fixes the penalty at dismissal of the appeal, or at a continuance to the next term, and not at affirmance of the judgment.</p> <p>5. -: Completion: Penalty. While the appeal is not so far completed as to allow appellate review by the filing of a short-form transcript, it is completed within the purview of section 2047, Revised Statutes 1909, so far as concerns the penalty of affirmance therein provided; and having been that far completed, Rule 16 steps in and says the penalty for failure to file a printed abstract shall be a dismissal or a continuance.</p>

<p>1. LOCAL OPTION ELECTION: Number of Petitioners: Comparison With Poll Books. The petition for a local option election signed by one-tenth of the qualified voters of that part of the county which embraces no city having1 2500 inhabitants or more, vests the County Court with jurisdiction to call the election; and if so signed, the court is not without jurisdiction to call the election, on the sole ground that it is not signed by one-tenth of the qualified voters as shown by the poll books of the last general election. The proviso of the statute (Sec. 7238, R. S. 1909) declaring that “the County Court shall determine the sufficiency of the petition presented by the poll books of the last previous general election” simply means that the court shall take the presumptive evidence of the poll books that the names truly set forth the qualified voters who reside in the locality entitled to hold the election. If the petition is in fact signed by one-tenth of the qualified voters of such locality, that is enough. The law confers the right of petition upon the resident qualified voters, not upon the names on the polling lists; and if one-tenth of the resident qualified voters signed the petition, an election ordered by the County Court will not be held invalid, although an order therefor did not recite a comparison of the names of the petitioners with those on the poll books.</p> <p>2. -: -: -: Failure of Court. The right given by the statute' to one-tenth of the qualified voters of a local option district to petition for a local option election therein cannot be taken away by the failure or omission of the County Court to look to the poll books as evidence that the petitioners possessed the statutory qualification and residence.</p> <p>3. CONSTRUCTION OF STATUTE: Harmonizing Terms. A construction which defeats the chief object of a statute will never be forced by giving its terms a meaning beyond what is expressly stated. The end had in view, and the paramount intention of the lawmaker, afford a strong reason for harmonizing a statute.</p> <p>4. LOCAL OPTION ELECTION: Number of Petitioners: How Determined. The poll books are not the only method of determining whether a petition for a local option election has been signed by one-tenth of the qualified resident voters of the locality, nor does the statute say that they shall be the only test. They are not an infallible enumeration. The proviso only means that, nothing else appearing, the County Court must ascertain 'from the poll books whether or not the petition is signed by one-tenth of the qualified resident voters; but it does not confine their examination to those books.</p> <p>5. -: -: -: Explicit Finding. An explicit finding by the County Court that the petition for the local option election outside of cities is signed by one-tenth of the qualified voters resident therein, is a substantial compliance with the statute, and (however that fact was ascertained) vested the court with ample authority to order an election and give due notice thereof.</p> <p>6. -: Irregularities. The courts will not set aside a local option election on account of mere irregularities not essential to its valid holding.</p>

— Hon. John M. Williams, Judge. (1) The license of a practicing physician is a valuable privilege and property right, which can only be revoked by due process of law. State ex rel. v. McElhanney, 246 Mo. 606. (2) The State Board of Health can only revoke a physician’s license, for unprofessional and dishonorable conduct, when the act specified comes clearly within the definition of Sec. 8317, R. S. 1909. State ex rel. v. Robinson, 253 Mo. 287.

— Hon. Charles D. Stewart, Judge. (1) The constitutional provisions contravened by the act are as follows: “No bill . . . shall contain more than one subject, .which shall be clearly expressed in the title” — Art. 4, sec. 28; “The General Assembly shall not pass any local or special law.”— Sec. 53, art. 4; “The General Assembly shall provide, by general laws, for the organization and classification of cities and towns.

<p>1. INSURANCE COMPANY: Organization: Agent to Sell Stock. Under the statutes (Secs. 6895-6902, H. S. 1909) a charter of an insurance company cannot be adopted until its stock is subscribed, nor is there any corporation until the amount of the proposed stock has been subscribed. The persons designated as “corporators” in those statutes are only given power to open and keep open books to take subscriptions to the capital stock; they have no stock for sale, and are not authorized to sell stock upon the market or otherwise; nor do they have power, in behalf of the corporation, to enter into a contract with an agent to sell stock or proposed stock.</p> <p>2. --: -:--: Purpose of Statute. The statutes mean that the cash paid or secured notes given for the stock of an insurance company, at the time, of its organization, shall go into its corporate treasury, and shall not be depleted or diminished by percentages paid to an agent of the corporators for securing subscribers. And they apply in the same way to any surplus obtained from subscribers of the stock.</p> <p>3. -: Contract with Agent Prior to Organization. A contract made with the chairman of the “corporators” or organization committee of an insurance company, to’ pay an agent a certain commission on all subscriptions he obtains to the company’s corporate stock, having been made before its organization, is not binding on the company, or enforceable against it.</p> <p>4. -: -: Notice of Limited Powers. The “corporators” of an. insurance company prior to its organization, are, under the statutes, agents of limited powers, and any one dealing with them must do so at his peril; and an agent, who enters into a contract with the chairman of the organization committee, who afterwards becomes its president, to obtain subscribers to its proposed capital stock, for a certain commission, is chargeable with notice that such chairman had no power to bind the corporation by such contract, for he is also chargeable with .notice that under the statutes there can be no corporation until after the stock is subscribed, and that all the cash received from subscribers to stock must go into the company’s treasury.</p> <p>5. AGENT: Failure to Sell Stock at Agreed Price. Where plaintiff agreed to sell stock at $200 for each share of $100 par value, and for his services was to receive ten per cent of the amount he so sold, he cannot, in a suit on the contract, and not in quantum meruit, recover for stock sold at less than $200 a share. And an agreement by a trust company to put up, for incorporation, purposes mer.ely, an amount of money equal to $200 per share of the stock sold to it, with the understanding that one-half of it is to be returned to it after the company is duly incorporated, cannot be twisted into a sale at $200 per share.</p> <p>6. -: Action on Specific Contract: Quantum Meruit. Where plaintiff’s pleadings are bottomed on a specific contract and the case is tried on that theory, a judgment cannot stand on quantum meruit.</p>

— Hon. Alonso D. Burnes, Judge. Appellant submits that tbe sheriff’s deeds, upon wbicb plaintiff bases his right to recover in this case, did not convey any title for the following reasons : (1) The probate court was without jurisdiction to make the order, in this: There must he a finding at some settlement that there are sufficient funds in the hands of the executor or administrator, after paying all debts and costs, to pay legacies or distributive shares before the' court…

Transferred from St. Louis Court of Appeals. The judgment or order of the county court granting a dramshop license at the same term of court at which the petitions of the assessed tax-paying citizens and guardians of minors of the block and municipal township are filed is void. Sec. 7201, R. S. 1909; State ex rel. v. Heege, 37 Mo. App. 338; State ex rel. v. Mitchell, 127 Mo. App. 455; State ex rel. v. Higgins, 84 Mo. App. 531.

Louis City Circuit Court. — Hon. George G. Hitchcock, Judge. (1) The power to make an-assessment is vested only in the district assessor. The President of the Board of Assessors has the power neither to make nor raise nor double an assessment.

<p>1. PUBLIC SERVICE COMMISSION: Findings As to Necessity of Interchange Railroad Track. The finding of the Public Service Commission that the evidence discloses such a pressing public demand or necessity for the construction of an interchange track by two railroads at the point where their lines cross each other as to warrant the expenditure of the amount of money which the evidence shows the track will cost, are not final and conclusive upon the courts authorized to review its actions.</p> <p>2. '-: Limitations Upon Powers. The origin and powers of the Public Service Commission are purely statutory, and it has no authority save that given it by express statute, and save such implied authority as may be necessary to carry into effect the authority expressly given.</p> <p>3.--: Evidence and Procedure. The evidence in any case appealed from the Public Service Commission is required to be preserved and transferred to the circuit court, and that court determines the case on that evidence; and on appeal from the .circuit court, the full substance, if not the entire evidence, must be brought to the Supreme Court, and this court determines the propriety of the judgment of the circuit court upon that evidence, as in an equity proceeding, by a trial de novo, and will direct the circuit court to affirm or reverse the judgment of the commission, but not to modify it, nor will it.direct the dismissal of the proceedings, since its jurisdiction is derivative.</p> <p>4. --: Interchange Railroad Track: Unreasonable Burden. A connecting or interchange track between two railroads whose lines cross each other (one thirty-five feet above the other’s track) is not a facility included within the absolute duties of a railway company; and where the evidence clearly shows that the cost of constructing such interchange track will be very large and the cost of maintaining it will far exceed all probable income to the railroad companies from operating it, and there is no demonstrated public necessity for its construction, as shown by the evidence and the small amount of previous shipments, the judgment of t'he circuit court affirming the judgment of the Public Service Commission ordering it to be constructed, -will be reversed.</p> <p>5. -: -: -: Costs. The question of the expense of constructing and maintaining such a track is of great importance in determining whether the judgment of the commission imposes an unjust burden upon the railroad companies.</p>

Mandamus. (1) The decision of the Supreme Court and the judgment of the circuit court entered in pursuance of the mandate of the Supreme Court legally established petitioner’s demand against the 'Leathe estate, and also declared the right of petitioner to the classification of her judgment in the fifth class. Knisely v. Leathe, 178 S. W. 453; Knisely v. Leathe, .256 Mo. 363; R. S. 1899, secs. 190, 208.

Prohibition. (1) The probate court or the judge thereof has no jurisdiction to issue a writ of habeas corpus. Secs. 1 and 34, art. 6, Constitution; State ex rel. v. Tincher, 258 Mo. 15; State ex rel. v. Woodson, 161 Mo. 444; Johnson v. Railroad, 259 Mo. 544; Turner y. Anderson, 236 Mo. 529; State ex rel. v. Nast, 209 Mo. 719; 11 Cyc. 706, o; Harding v. State, 126 S. W. (Ark) 91; Finn v. Walsh, 121 N. W. (N. D.) 766, syl. 3.

Mandamus. For judgment see opinion, page 422. (1) The terms “ordinary revenue,” as used in section 6 of article 11 of the Constitution of 1875 and in the Appropriation Act of 1915 (Laws 1915, p. 89), and “State revenue,” as used in section 7 of article 11 of the Constitution, are synonymous, and include all receipts into the State Treasury to the credit of the revenue fund.

<p>1. PRACTICE: Motion to Dismiss: Equal to Demurrer. The legal character of a pleading is to he determined by its substance, and not by its nqme. A motion to strike out or to dismiss may fill the office of a demurrer, and be so treated, where it is, to all intents and purposes, a demurrer, and dispositive of the whole case, as a matter of law.</p> <p>2. -: -: Evidence: Appeal: No Motion for New Trial. Where one ground of a motion to dismiss as to movents was that the record shows on its face that if plaintiff ever had a right to establish a mechanic’s lien on their property such right had expired, and that part of the motion only is sustained, and an appeal is taken by plaintiff from that judgment to the Court of Appeals, that court, having otherwise appellate jurisdiction in the matter, cannot refuse to consider the point raised by the motion upon the ground that it required a motion for new trial to preserve the point for review. No motion for a new trial was necessary, nor did a proper determination of the point put in issue require an examination of the evidence, nor was evidence necessary or even proper. Things appearing on the face of the record conclusively speak for themselves.</p> <p>3. -: -: -: -: -: Other Grounds of Motion. Nor does the fact that the motion to dismiss contained other grounds, which could be sustained only by evidence, and that evidence was offered in support of them, and they were not sustained, alter the right of the plaintiff on appeal, without any motion for a new trial filed in the trial court, to have that part of the motion charging that the amended petition showed on its face that plaintiff’s right to a mechanic’s lien had expired, and which was separately sustained, considered by the appellate court — not even though movents had done the useless thing of supporting the point by evidence.</p> <p>4. -: -: Grounds Assigned. On appeal the court must presume that the trial court sustained a motion to dismiss on the ground specifically assigned by it — in this case, that a motion to dismiss is sustained on -the “first ground” assigned in that motion, which was that the petition showed on its face that the right to a mechanic’s lien sought by it had expired.</p> <p>5. -: -: Where No Ground Is Assigned. Where the motion to dismiss assigns several grounds, one of which is to the effect that the petition shows on its face that the action is barred, and others which call for evidence to establish them, and the motion is sustained without any assignment of the ground therefor, then on appeal by plaintiff he cannot rely solely upon the disclosures of the record proper, because, as long as the motion went both to the record proper and matters of exception, the appellate court will indulge the presumption that the trial court decided correctly, if not upon the disclosures of the record proper, then upon the matters of exception alleged in the motion, there being no motion for a new trial and hence no evidence preserved for review. But where the trial court sustains the motion on the specific ground that the record shows on its face that the action is barred, then that point is for consideration in the appellate court, without any motion for a new trial.</p>

Mandamus. (1) This is a mandamus proceeding to compel the Secretary of State, respondent herein, to accept articles of incorporation showing on their face an itemized list of property, amounting to $91,084.56, -whereas the capital stock is fixed at $50,000. Respondent insists that the capital stock of the proposed corporation, Leppert-Roos Fur Company, must equal the amount of its assets, and that the company cannot be incorporated with a surplus.

— -Hon. L. B. Woodside, Judge. (1) The sale of the land in question having been made at a private sale for less than three-fourths of its appraised value, the probate court had no power to approve said sale, and the same was absolutely void. Secs. 432 and 433, R. S. 1909; Carder v. Culbertson, 100 Mo. 269. (2) The sale made in this case was not based upon any valid order of the probate court.

— Eon. Nat M. Shelton, Judge. (1) The circuit court never acquired jurisdiction over the property of any of the defendants, which would warrant it in appointing commissioners. The statute provides as a condition precedent that before the commissioners shall be appointed, and before any sewers can be constructed that the council, by ordinance, define the district. R. S. 1909, secs. 924.1, 9262.

<p>1. PUBLIC ADMINISTRATOR: Power to Take Charge of Estate. The mere fact that a public administrator takes charge of an estate by filing notice in the office of the clerk of the probate court gives him no greater authority or a more secure right to administer it than he would have were he appointed by the probate court, and no greater authority or right to administer the estate than any other person appointed administrator by the probate court would have.</p> <p>2. -: Probate of Will: After Filing of Notice. Upon the discovery and probate of a will of deceased after the filing by the public administrator with the clerk of the probate court of notice that he has taken charge of the estate, all his authority and right to administer the estate ceases ipso facto and by operation of law; and an order of the probate court vacating the authority assumed by him to act is useless and unnecessary, but one appointing another suitable person administrator with the will annexed is valid. There is no reason why the statute (Sec. 47, R. S. 1909) declaring that “if, after letters of administration are granted, a will of the deceased be found, and probate thereof granted, the letters shall be revoked, and letters testamentary, or of administration, with the will annexed, shall be granted” should not apply to a public administrator who takes charge of an estate under section .305.</p> <p>3. -: -: Notice of Vacation of Assumed Authority. The order of the probate court revoking the authority of the public administrator to administer an estate, made after the discovery and probate of decedent’s will, is not void on the theory that he was entitled to notice of the court’s intention to make the order, for two reasons: first, because, having before the discovery and probate of the will, filed his notice with the clerk of the probate court that he had taken charge of the estate, he was already in court, and is required by law to take notice of all papers, documents, etc., filed in the case, except where actual notice is required by statute; and, second, because he had no vested right, as public administrator, to a hearing, his assumption to act being conditional upon the discovery and probate of the will, and upon that condition happening his right to further administer the estate ipso facto ceased, without any order of revocation.</p> <p>4. ADMINISTRATION: Priority: Discretion of Court. Notwithstanding the provisions of section 15, Revised Statutes 1909, naming certain persons entitled to priority.to administer estates, upon the discovery and probate of a will which names no one as executor, the probate court may, in the exercise of its sound discretion, and in the face of certain circumstances named in the statute, appoint the public administrator, administrator with the will annexed; but it is not compelled to appoint- him, and, , if some one else is appointed, no statutory right of his is violated.</p>

- — Hon. J. G. Slate, Judge. The Public Service Commission Act provides that causes of action taken by writ of certiorari to the circuit court from the Pubh a Service Commission shall be tried as suits in equity. It is further provided that such causes shall be appealed as in other cases. There is nothing for this court to review in this case, as the appellant did not file a motion for a new trial or a motion in arrest of judgment.

Louis City Circuit Court. — Hon. Kent K. Koerner, Judge. (1) Sec. 4726, R. S. 1909, as repealed and reenacted, Laws 1911, p. 198, does not make the acts alleged in the information or testified to in the evidence a criminal offense. It was not an offense at common, law, nor under this- statute, nor is there any other statute applicable, (a) In determining the meaning of the words “the abominable, and detestable crime against nature,” we must have recourse to the common law.

— Eon. Joseph A. Guthrie, Judge.- Pierre R. Porter and Cyrus Crane for appellants. (1) The court erred in overruling defendants’ demurrer to the evidence and in refusing the request for a peremptory instruction at the close of all the evidence.

<p>1. FIRE LIMITS: Definition of Structures. Within properly defined limits a municipal legislative body may define the objects designed to be affected by its fire-limit ordinances and a court in construing such ordinances is ordinarily bound to follow the city’s definitions of buildings and other structures so affected.</p> <p>2. -: Tent: Lacking Portability: Building. A structure lacking the element of portability, and being canvas stretched and held in place by a wire cable attached to two large telegraph poles set firmly in the ground and by guy cables run laterally from this main cable to other posts also set firmly in the ground, with a stage, dressing rooms, ticket office and benches built of wood, the whole used as a moving-picture theatre, is not a tent, as that word is ordinarily understood; but under the ordinances of St. Louis declaring that the word “building” shall be taken to mean “any structure for the support, shelter or enclosure of persons, animals or chattels” is a building within the purpose and intent of the fire-limit restrictions.</p> <p>3. -: Reasonable Regulation. And an ordinance which prevents the carrying on of a permanent business in such a building is a reasonable police regulation.</p>

Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge. (1) The agreement is based upon a valid consideration sufficient to support the promises of the defendants. Grochowski v. Grochowski, 15 Am. & Eng. Ann. Cas. 300', 13 L. R. A. (N. S.) 454 and case note; Waller’s Adnxs. v. Marks, 100 Ky. 541; Ruth v. Krone, 10 Cal. App. 770'; Palmer v. North, 35 Barb. 282; Hartle v. Stahl, 27 Md. 157; St. Marks -Church v. Teed, 120 N. Y. 585; Clark v. Lyons, 38 Misc.

— Hon. John M. Williams, Judge. (1) The question whether or not the defendant was actuated - by malice in uttering the defamatory words alleged in the petition was for the jury, and the court erred in refusing instruction number 8, asked by the plaintiff, authorizing the jury to take into consideration the evidence showing that defendant had on divers occasions prior to July, 1908, uttered defamatory words similar to those charged in the petition. 18 Am. & Eng. Ency.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) The evidence does not show that the bonds in issue in this suit were purchased with the money of Mary A. Carmody. Tygard v. Falor, 163 Mo. 234; Terry v. Glover, 235 Mo. 544. (2) It does not show a gift inter vivos between deceased and defendant. Keyl v. Westinghaus, 42 Mo. App.’ 57; Godard v. Conroy, 125 Mo. App. 174; Terry v. Glover, 235 Mo. 549.

<p>1. MINOR: Sale of Land: By Curator Appointed Without Notice: Constitutional Right. When the Legislature as parens patriae takes from a minor the power to dispose of his property, and, through the instrumentality of the probate court and a curator, sells that property for his education and support, it does not deny to him the equal protection of the laws, but gives him the protection of laws especially designed for his protection; it does not take from him his property, but uses it for his benefit. And the sale of a non-resident minor’s land by a curator who was appointed by the probate court without notice to the minor of the application for such appointment, if otherwise done in harmony with the statute, which in 1879 did not require such notice, did not violate the provision of the Federal Constitution guaranteeing to him- the equal protection of the laws, or the provision of the State Constitution declaring his property shall not be taken without due process of law.</p> <p>2. NON-RESIDENT MINOR: Over Fourteen Years: Choosing Curator, The General Statutes of 1865 did not give to a nonresident minor having real estate in this State, either under or over fourteen years of age, the right to choose his curator, or to have notice of the application for the appointment of a curator.</p> <p>3. -: Curator: Interloper. A person who has been appointed curator of the estate of a non-resident minor at the suggestion and upon the application of another who. holds a power of attorney from the minor’s mother and adult sister for the sale of their interests in the same lands, and who sold those interests to the same persons who purchased from the curator, cannot properly be characterized as an interloper.</p> <p>4. -: Sale of Lands: Notice of Order of Sale. The General Statutes of 1865 did not require that notice be given the minor of an application by the curator for an order of court to sell the lands of the minor.</p> <p>5. CURATOR: Resignation: No Formal Discharge: Sale by Subsequent Appointee. Where the resignation of a duly appointed curator has been accepted by the probate court by an order entered of record, the fact that he was not formally discharged will not affect a sale of the minor’s land by a subsequent curator duly appointed.</p>

Certiorari. (1) The opinion and decision of the Kansas City Court of Appeals in construing the language “while riding as a passenger in a railway passenger car” to mean while riding as a passenger on the inside of a passenger car, construed the contract most favorably to the insurance company instead of to the.insured, in direct opposition to and in conflict with the controlling decisions of this court, which hold that all such contracts must be construed most favorably to…

<p>1. MECHANIC’S LIEN: Sufficient Description. A description of materials furnished by a dealer in lumber when made in abbreviations and trade terms known and understood to be in use in the trade, is a compliance with the statutory requirement that “such a statement of the claim as fairly apprises the owner and the public of the nature and amount of the demand asserted as a lien” shall be filed; and a decision of the Court of Appeals so holding is in harmony with Henry v. Plitt, 84 Mo. 1. c. 241.</p> <p>2. —:-:-: Evidence of Items: Consolidation. The mere fact that the lien account consolidates in one undated item several charges which show that each was for lumber of the same grade, quality, character and price, and which in the aggregate include the identical quantity of material and the identical amount charged in the consolidated bill, the whole being otherwise lienable matter, is not an objection the owner can urge against the lien claimant, even to the extent of avoiding the consolidated item, there being no proof of bad faith or of resulting injury to any one.</p> <p>3. -: -: -: -: As Affecting Whole Account. In no event can the consolidation of a few items of the lien account, the aggregate amounts and charges being equal to the amounts and charges of the consolidated items, invalidate the whole lien account, whatever may be its effect upon the items so consolidated.</p> <p>4. -: -: -: Excess in Summation. The fact that the aggregate of the items in the bill of particulars exceeded those of the large lien account by the insignificant sum of $2.46 is of no consequence.</p> <p>5. - — : -: -: Dates. The absence of dates in connection with particular items in a lien account is not important, when it appears from the account that the materials were furnished between given dates which fall within the beginning and close of the account.</p>

Certiorari. (1) The legal relation of Dr. Howard to plaintiff, as well as to Dr. Tiffany, upon this record was that of an independent contractor and therefore, the demurrer of Dr. Tiffany should have been sustained on that ground. Plaintiff’s evidence shows Dr. Tiffany never treated her nor was he present at such treatments.

<p>CORPORATION: Liability for Malicious Assault by Agent Upon Patron. A corporation, an express company and a common carrier, which had delivered a consignment of fruit to plaintiff, who, after refusing on account of a shortage in the shipment to sign a receipt therefor until the company’s agent would present his claim for an allowance for the shortage, returned at the agent’s request, given by telephone, to defendant’s office for the purpose of discussing a settlement of the matter, and when near the office was met by said agent, who demanded that plaintiff then and there sign said receipt, and when plaintiff under protest was in the act of signing it, suddenly drew a pistol and without warning shot plaintiff, is liable in civil damages, both actual and punitive, to plaintiff for the injuries resulting from said assault; and a second count in the petition in which Knowledge by defendant of the agent’s violent temper, quarrelsome disposition and unfitness for his position, in addition to such other facts, is charged, also states a cause of action.</p> <p>Held, by WOODSON, C. J., dissenting, with whom BLAIR, X, concurs, that the agent’s act was a crime, personal to himself, in no way within the scope of his agency, and could not be authorized by the company, because unlawful, and being wholly unauthorized and unauthorizable, the com-, pany is not liable in civil damages for the injuries to plaintiff caused by his murderous assault.</p>

Mandamus. (1) The cause was properly at issue when listed for jury trial. The answer of the defendant Metropolitan Street Railway Company was a general denial. The answer of the defendant Standard Oil Company under the authorities is a general denial and not a plea of contributory negligence. Johnson v. Traction Co., 176 Mo. App. 182; State ex rel. v. Rau, 93 Mo. 130; Jordan v. Buschmeyer, 97 Mo. 97; Watkinds v. Railroad, 38 Fed. 711; Benjamin v. Railroad, 245 Mo. 598.

— Eon. James D. Barnett, Judge. (1) The verdict was against the law and the evidence. There was no felony committed.

Louis City Circuit Court. — Hon. George H. Shields, Judge. (1) The measure of damages in condemnation suits for land condemned is' the market value of the land taken. Lewis on Eminent Domain, secs. 685, 706; Cooley’s Constitutional Limitations (7 Ed.), chap. 15, p. 819. (2) In cases where land to be condemned is' under lease the measure of damages in favor of the lessee is the market value of his lease over and above the rent reserved.

<p>1. CONSTITUTIONAL STATUTE: Implied Legislative Limitation. An implied limitation on the Legislature’s power to enact a certain statute must be so clear and unmistakable as to make possible no other reasonable construction of the language used than that the power to enact the statute does not exist. A possible inference of its non-existence is.not sufficient.</p> <p>2. -: -: — : Twenty-five Cent Road Tax: Expended by County Court. The provision of section 11 of article 10 of the Constitution authorizing the county court to levy and collect a tax of not more than twenty-five cents on each hundred dollars’ valuation, to be used for road and bridge purposes, and for no other purpose whatever, does not give the county court exclusive power to expend the fund, and does not contain a limi: tation upon the power of the Legislature to authorize the money so raised to be expended by the commissioners of a special road district so clear and unmistakable as to justify the conclusion that such power does not exist.</p> <p>3. -:--; Expended by County Court: Administration of County Affairs. Section 10482, Revised Statutes 1909, as 'amended (Laws 1913, p. 669), providing for the apportionment by county courts of taxes collected for road purposes within certain special road districts, is not unconstitutional on the theory that the Constitution created county courts to transact the business of the counties and vested them with express jurisdiction to construct and repair roads, even though it contains an implied limitation that the road tax fund be expended under the direction of those courts.</p> <p>4. -: Legislature: Power of Taxation: Instrumentalities. The power to tax and to appropriate taxes is vested in the Legislature, and may be exercised within its discretion when not violative of an express provision of the Federal or State Constitution, and that power, in the absence of such restrictions, extends to a determination of the time, the amount, the nature and the purpose for which the tax is to he levied, and the creation of the agencies or instrumentalities for its collection and disbursement.</p> <p>5. -: Class Legislation: Special Road Districts. Sections 10594 and 10591, Revised Statutes 1909 (repealed and reenacted in 1913, Laws 1913, pp. 674, 675), are not unconstitutional as class legislation. They apply to all road districts which may he organized as bodies corporate and are conducted in conformity with their provisions.</p> <p>6. -: -: -: Indefinite Territory. The fact that much or little of the territory of the county may be included in a special road district does not render invalid the statutes authorizing their organization.</p> <p>7. —=-: Special Road Districts: Public Purpose. Taxes expended by a special road district on public highways are used for a public purpose.</p> <p>8. --: -: Uniform Taxation. Special road district statutes operate alike upon all persons within the district, and do not violate the rule for uniformity of taxation.</p> <p>9. -: -: Collection of Taxes Within Cities. The statutes,- in authorizing the levy and collection of taxes in special road districts outside of cities, do not violate that part of section 10 of article 10 of the Constitution which forbids the Legislature to impose taxes and appropriate money levied and collected by city authorities to uses and purposes outside of such cities.</p> <p>10. -: -: Lending Credit, Etc. The statutes creating and governing special road districts do not violate sections 46 and' 48 of article 4 of the Constitution which prohibit the Legislature from granting public money to individuals, or municipal or other corporations, and from authorizing any municipality or other political corporation from lending its credit in aid of any individual or corporation.</p> <p>11 -: -: Maximum.Rate of Taxation. Special road districts are not included within the provisions of sections 11 and 12 of article 10 of the Constitution which fix the maximum rates of “taxes for county, city, town and school purposes.”</p>

— Hon. David H. Harris, Judge. (1) The first count of the amended information upon which the prosecuting attorney elected to try-the defendant, properly charges the offense of obtaining money under false pretenses. State v. Shout, 263 Mo. 360; State v. Roberts, 201 Mo. 710; State v. Lovan, 245 Mo. 524; State v. Martin, 226 Mo. 547; State v. Donaldson, 243 Mo. 465; State v. Foley, 247 Mo. 607; See. 4565, R. S. 1909.