Volume 269 — Missouri Reports

Circuit Court. — Eon. James D. Barnett, Judge. (1) This suit was premature. The action under the policy could not be brought until more than sixty days after the proofs of loss. The question of waiver by defendant does not arise. The defendant was willing to pay the award ánd no more, but that gave the plaintiff no right to bring suit before the expiration of the sixty days as for a total loss. Further the finding of the jury was that there was not a total loss.

— Eon. C. A. Calvird, Judge. (1) The Connecticut court was a court of competent jurisdiction to determine the question of the right of the company to maintain the mortuary fund and its decree was binding upon the company and all its members. Ins. Co. v. Ibs, 237 U. S. 662; Royal Arcanum v. Green, 237 U. S. 531; Condon v. Mutual Reserve, 80 Md. 90; Clark v. Mutual Reserve, 14 App. D. C. 154; Taylor v. Mutual Reserve, 97 Va. 60; State ex rel. v. Shain, 254 Mo. 78.

— Hon. Nat M. Shelton, Judge. (1) The title and term of office of the commissioner are provided by Sec. 8770, R. S. 1909. The term is three years. He receives a salary of $500 per annum. If not property in a precise sense it is a right that is protected against “the whimsical sport of chance, caprice or of intermeddlers, or of any form of illegal and unauthorized interference.” State ex rel. v. Shepherd, 192 Mo. 509.

<p>1. IMPRISONMENT FOR DEBT: Breach of Contract. An obligation to pay arising out of a contract is strictly within the meaning of the word “debt” as used in the constitutional provision forbidding imprisonment for debt, and such prohibition cannot be evaded by the Legislature or a city council by the device of declaring a breach of such a contract a crime.</p> <p>2. -:-: Use of Automobile or Other Vehicle: Failure to Pay. An ordinance declaring that any person who hires an automobile, carriage, buggy, wagon or taxicab, and refuses to pay the agreed price, or a reasonable price, or the rate fixed by ordinance, shall be deemed guilty of a misdemeanor, and on conviction be fined not less than one or more than five hundred dollars, is, in the absence of all fraud on the part of the hirer, invalid as an indirect effort to evade the constitutional provision prohibiting imprisonment for debt.</p> <p>3. -:-:-: Police Regulation. The police power cannot be used as a cloak under which to overthrow or disregard the constitutional inhibition of imprisonment for debt.</p>

<p>1. INTERSTATE SHIPMENT: Elements: Exceptions. Whether the movement of a commodity is intrastate or interstate commerce is to be determined in the majority of cases from certain elemental facts. These are the intention of the shipper as indicated by the bill of lading, the continuity of the movement and the delivery of the commodity under the shipment contract. When some of these elements are absent, other facts, due to the nature of the particular ease, and of sufficient probative force to determine the character of the shipment, are present.</p> <p>2. INTERSTATE SHIPMENT: Initial Purpose. An interstate shipment exists when a commodity has been turned over by a shipper to a common carrier to be transported from one State to another under a contract of shipment — the definite character of the shipment being fixed when the movement of the commodity has commenced for the purpose of transportation.</p> <p>3. -•: Intention: Evidenced by Contract. Intention, while not in some cases controlling, is important in determining the character of the shipment.</p> <p>Held, by GRAVES, X, concurring, that the intention of the shipper governs the character of the shipment (as to whether interstate or intrastate); but when that intention has been clearly evidenced by a written contract of carriage to which both parties have subscribed, the carrier is estopped by the terms of the contract from asserting that the intention was for an interstate shipment, where the contract by its terms calls only for an intrastate one. In such case the intention is to be gathered from the instrument.</p> <p>4. -: -: Contract: Reconsignment. Where the contracts are for shipments from points in Missouri to grain dealers in Kansas City, Missouri, and the commodity is there delivered to and sold by the consignees, who are grain dealers on the floor of the Board of Trade, the delivery to them completes the contract between the shipper and carrier, and the whole transaction having been confined to Missouri the shipment is intrastate, although the grain at the time of the sale has not been unloaded and remains in cars on the hold tracks until it is sold by the consignees to other purchasers.</p> <p>Held, by REVELLE, X, concurring, that shipments consigned from one point iri this State to another point in this State are intrastate shipments, unless it is the intention of the shipper to reconsign the same and extend it beyond the State line, or unless the shipment is of such a character and made under such circumstances that it necessarily must, regardless of the shipper’s intention, extend beyond the line.</p> <p>5. --: -: Contract as Determinable. While the essential character of the commerce is influenced by the billing or form of contract, it is not to be controlled by it except when taken in connection with the other essentials, namely, the continuous movement from the place of shipment to the final destination named in the contract, and the delivery of the commodity.at such place to the consignee.</p> <p>Held, by GRAVES, X, concurring, that the intention of the shipper determines whether the shipment is intrastate or interstate and the intention of the parties cannot and should not be determined otherwise than by their solemn written effreightment contract.</p> <p>Held, by BOND, X, concurring, that the essential character of commerce is determined by (1) the intention of the shipper and (2) the nature and object of the shipment, which may be shown from the facts and circumstances of the particular case, and are not conclusively established by the terms of the bill of lading, which can never alter the real nature of the shipment, but are only evidentiary, in connection with other facts and circumstances, of the purpose and destination of the shipment.</p> <p>6. -: Hew Movement Under Hew Contract. If, after the grain has been transported from initial points of shipment in Missouri to Kansas City, Missouri, and there delivered to consignees who sell it in carload lots to other purchasers while it still remains unloaded on the hold tracks, it is moved under the purchaser’s direction, the carrier commences the performance of a new contract separate and independent of the original one, and if thereunder the shipment be across the State line it becomes interstate in its character upon the beginning of the new movement.</p> <p>7. -■: Usage and Custom. Usage and custom cannot be invoked to destroy, modify or contradict what is otherwise manifest, or to make a contract where there is none. They cannot be invoked to turn an intrastate shipment into an interstate one.</p> <p>8. -: Placing Cars on Holding Track Over State Line. Where the bill of lading or contract between the shipper from a Missouri point and the carrier names Kansas City, Missouri, as the final destination of the grain, the carrier cannot, by placing the unloaded cars after they have reached this destination, for its own convenience, on its hold tracks in the State of Kansas, during the time intervening between their arrival and the sale of the grain by the consignee, change the character of the intrastate shipment into an interstate one.</p>

— lion. Charles A. Calvird, Judge. (1) The petition is sufficient. State ex rel. v. Blair, 245 Mo. 686; State ex rel. v. Wilson, 216 Mo. 2-86; State ex rel. v. Angert, 127 Mo. 458. (2) An assessment may be lawfully made against' a county on account of benefits accruing to the roads in the district. Laws 1905, p. 180; Sec. 5591, R. S. 1909; Wilkins v. Hillman, 1915 H. L, R. A. (Okla.) 254.

Louis City Circuit Court.— lion. George E. Shields, Judge. (1) Where a fraud or deceit has been practiced by one party on the other, or the court is satisfied that perjury or mistake has been committed by a witness, and is also satisfied that an improper verdict or finding was occasioned by any such matters, and that the party has a just cause of action or of defense, it shall, on motion of the proper party, grant a new trial.

Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge. (1) The law holds the defendant to the highest degree of care and applies the doctrine of res ipsa loquitur. Tenn. State Fair Assn. v. Hartman, 183 S. W. 735; Hartman v. Tenn. State Fair Assn., 183 S. W‘. 733, citing Hollis v. K. C. Assn., 205'Mo. 508; Best Park Co. v. Rollins, 68 So. (Ala.) 417; Chesapeake Beach Ry. Co. v. Brez, 39 App.

Citation for Contempt. (1) All constitutional courts have the inherent power to punish for contempt, such power being derived from the very nature of their organization and essential to their existence and the administration of justice. 7 Am. & Eng. Ency. Law (2 Ed.), p. 30; State ex inf. v. Shepherd, 177 Mo. 205; In re Clark, 20 Mo. 121; Breeder v. Bambrick, 162 Mo. App. 528; In re Ellison, 256 Mo. 378. (2) The case before the court is one of constructive, criminal contempt.

Certiorari. (1) The Kansas City Court of Appeals has jurisdiction to decide cases appealable to it according to the “last previous ruling of the Supreme Court on any question of law or. equity.” Within that limitation the Court of Appeals has jurisdiction. Beyond that it has no jurisdiction. Constitution 1875, Amendment of 1884, see. 6; State ex rel. v. Robertson, 264 Mo. 678.

<p>1. DRAINAGE DISTRICT: Plan of Reclamation: Modification. It is competent for the board of supervisors of a drainage district to adopt as a whole the report of the plan of reclamation made by the board of engineers, or to modify it with the consent of the chief engineer.</p> <p>2. -: -: -: Correction of Record. Where the record of the board of supervisors fails to contain a recital of the modification of the plan of reclamation, a correction made above the erased signature of the secretary, and after being so made as to state the action of the board as shown by its minutes and signed by the secretary and president, should not be excluded from evidence, on the gound that no plan of reclamation was ever adopted or filed by the board as required by law.</p> <p>3. -: Inclusion of Extraneous Matter. A recommendation in the report of the plan of reclamation as made by the board of engineers that certain lands be either condemned for storage basins or not assessed for benefits, and a recital therein that “the board decided to defer this matter until the next meeting,” and a recital in the records of the drainage district that at a subsequent meeting the board of supervisors decided the lands should be assessed as other lands and not condemned for storage, did not invalidate the plan of reclamation, and did not authorize the trial court to reject the plan, as being, on this account, not in substantial conformity with the statutory requirements, since the whole matter pertains to the duties of the board of commissioners, and is entirely outside the statutory duties of the engineers and supervisors.</p> <p>4. -: Lands for Right of Way: Condemnation Without Attempted Agreement. The Drainage Act does not require that it shall be alleged in any petition that an effort has been made to agree with the owner whose land is taken for a right of way, nor does it require that an effort be made to contract with the owner before the filing of a petition for the appointment of commissioners; and the reading of such requirements into the act is not justified by that part of it which prescribes that where lands are taken the proceedings shall follow, “as nearly as possible, the procedure that is now provided by law for the appropriation of land and other property taken for telegraph, telephone and railroad rights of way.” This language was not intended to add any conditions not prescribed by.the act itself, and, as the act is to be liberally and broadly construed to effectuate its beneficial purposes, a condition that the commissioners must attempt to agree with the land owner upon compensation before his land is taken is not a part of the act.</p>

<p>BANK COMMISSIONER: Depositary of Securities: Prior Withdrawal of Company. The Act of March 25, 1915, Laws 1915, p. 188, requiring the Superintendent of the Insurance Department to turn oyer to the Bank Commissioner all securities of companies “now doing business in this State or which may hereafter be organized under the provisions of this article” in his custody, did not make the Bank Commissioner the depositary of securities of a company which prior to its enactment had ceased to do business in this State, but such securities remained in the legal custody of the Superintendent; and where a trust company had ceased to do business, and has in all respects complied with the law governing its right to recover securities deposited with the Superintendent prior to the enactment of said statute, it is his duty to deliver said securities to the company.</p>

<p>1. INFORMATION: Surplus Preposition. The use in four different places of the preposition “of” in an information charging that the assault was done of defendant’s “malice of aforethought,”- is non-hurtful surplusage, but should be avoided, and the information may be amended by striking it out.</p> <p>2. MURDER: Instruction: Self-Defense: Necessary to Kill. An instruction on self-defense in a murder ease which tells the jury that “if defendant had reasonable cause to believe and did believe that it was necessary for him to shoot and kill to protect himself from such apprehended danger, you will acquit on the ground of self-defense,” is not because of the use of the word “kill” reversible error; and in the absence' of any evidence contradicting defendant’s intent to kill and in view of the fact that he did shoot deceased in a vital spot and kill him, complaint of the word “kill” as used in the instruction is more specious than real.</p> <p>3. OBJECTIONS TO EVIDENCE: Failure to Rule. If the objection made to the admission of evidence was not sufficient to make a ruling thereon necessary, the trial court cannot be con: victed of error for failing and neglecting to rule, upon it.</p> <p>4. CROSS-EXAMINATION OF DEFENDANT: Matters Not Referred to in Chief. Defendant cannot in cross-examination be questioned about matters to which he did not refer in his direct examination. He cannot on cross-examination be asked if he did not discharge his pistol on the public road three hours before shooting or seeing deceased, where he had not in testifying for himself referred to the matter.</p> <p>5. DISCONNECTED ALTERCATION. Testimony offered by the State tending to show that three hours prior to the shooting defendant had an altercation with a girl, which was a difficulty entirely disconnected and separate from the homicide,- should not be admitted.</p> <p>6. INSTRUCTION: Presumption for Second Degree Murder. An instruction telling the jury that “if they find from the evidence that defendant intentionally killed” deceased “by shooting him with a loaded pistol and that such pistol was a deadly weapon, then the law presumes the killing was murder in the second degree, in the absence of proof to the contrary; and it devolves upon the defendant to adduce evidence to meet or repel that presumption, unless it is met or repelled by evidence introduced by the State,” has no place in a case wherein ail the circumstances of the homicide are known and shown by the testimony of eye-witnesses, and is error. Presumptions are invoked only when evidence is lacking, and are not to be used, in the face of the fact presumed, to batter down evidence. [Criticising, but distinguishing, State v. Minor, 193 Mo. 1. c. 612.]</p> <p>7. -:-: Undue Burden Upon Defendant. To make use of the presumption that the intentional killing of another by a deadly weapon is second degree murder, in a case in which all the facts are shown by eye-witnesses, is to assume the absolute truth of the State’s side of hotly disputed facts, and to demand that defendant rebut the presumption so unwarrantably drawn is to put on him an undue burden, and to beg the identical question submitted to the jury upon the proven facts.</p>

<p>1. BANKS: Regulation by State. The State has the right to prescribe the general policies which shall be observed in the conduct of banks, and to declare by statute that the directors of a bank “may appoint and remove any cashier or other officer or employee at pleasure.”</p> <p>2. -: Discharge of Cashier: Salary for Balance of Term. The statute (Sec. 1112, R. S. 1909) says that the board of directors of a bank “may appoint or remove any cashier or other officer or employee at pleasure;” and if the cashier was employed for a year, and discharged within a few months thereafter, he cannot recover his salary for the balance of the year; and if, at the time he left the bank, under protest, he took what he would otherwise have been entitled to had he remained a year, he and his surety on his bond for the faithful discharge of his duties as cashier, are liable for the amount so taken. [Distinguishing Davis v. Insurance Co., 191 Mo. App. 333.]</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The requested instruction of defendant in the nature of a demurrer prayed for by defendant at the close of the State’s case, should have been given. Sec. 4472, R. S. 1909, as amended by Laws 1913, p. 218. (2) The instruction given by the court of its own motion is erroneous, in that it is confusing and improperly states the law and punishment thereunder.

— Hon. Arch A. Johnson, Judge. The court erred in excluding competent and relevant testimony, offered in cross-examination of witnesses for the State, as well as offered by testimony in behalf of the defendant, tending to show that defendant was carrying the pistol in the necessary defense of his person.

Charles Circuit Court. — lion. Edgar B. Woolfolh, Judge. (1) The action of the court in setting this cause down for trial in the absence of the defendant necessitates a reversal. State v. Warner, 165 Mo. 399. (2) The court erred in assuming in the State’s instructions numbers one to fifteen inclusive that the defendant admitted the fact of having shot and killed his wife.

— Hon. Hopkins R. Slicdn, Judge. (1) The title to the amendatory act (Laws 1913, p. 222) is sufficient. Amendments to sections of the revised statutes may he made by acts whose titles refer to those sections by numbers. State ex rel. v. County Court, 128 Mo. 439. (2) Thé purpose of a title to a hill is to indicate to the members of the Legislature in clear terms its general contents.

— Wow. James D. Barnett, Judge. (1) The indictment is defective in that it does not allege that the defendant was not registered as a physician or surgeon on or prior to March 12, 1901. This is a part of the act describing the offense and therefore should have been negatived in the information. This exact question was settled in this court in State v. Carson, 231 Mo. 1, which expressly approves State v. Hellscher, 150 Mo. App. 230.

<p>1. INDICTMENT: Bawdyhouse: Defendant’s Knowledge. An indictment charging that the defendant was the keeper of a common bawdyhouse is not insufficient because it does not charge that he knew the character of the house at the time of the alleged offense.</p> <p>2. -: -: Evidence of Another Place. Where the indictment charges that defendant kept a bawdyhouse at the northwest corner of certain streets, and across the street from the hotel on that corner was an annex in the second story, connected with the hotel by an overhead viaduct, there being no charge that the hotel and annex were used in connection with each other as one establishment, it is improper to admit evidence broad enough to cover both buildings.</p> <p>3. -: Instruction: Comment on Evidence: Reputation. An instruction which singles out certain evidence and gives it prominence is erroneous. And in the prosecution of a defendant for keeping a bawdyhouse and displaying thereon the sign of an honest occupation, an instruction which tells the jury that, in determining whether or not the building described in the indictment was used as a common bawdyhouse, and whether or not the defendant had knowledge of such use, they “may take into consideration the gen: eral bad reputation of the inmates of such.house for virtue and chastity,” etc., is improper, as calling special attention to the bad reputation of the inmates of such house, and telling them they may take such evidence into consideration.</p> <p>4. -: Refusal of Correct Instruction. An instruction asked by defendant, who kept a hotel, which it is charged was a common bawdyhouse, which tells the jury that “the defendant had the right to furnish lodging and home for the witnesses, Mabel Dennison and Margaret Dale and other women, even though you may find from the evidence that said women were prostitutes and were plying their avocation as such; the only duty that devolved upon the defendant was to not knowingly permit the said women to ply their avocation about his premises and in his hotel building,” announces the true rule of law under the circumstances, and should have been given.</p>

— Hon. A. H. Waller, Judge. (1) The plaintiff was not entitled to recover and the court erred in refusing to direct the verdict for the defendant.

<p>1. POLICE DETECTIVE: State and Municipal Officer: Increase of Salary. A police detective, appointed by the Board of Police Commissioners of Kansas City, is, because of the safeguards thrown around his position by the statutes (Secs. 6189, 6190, 6192 and 6193, R. S. 1899), both a State officer and a municipal officer, and his salary, in view of section 8 of article 14 of the Constitution, cannot be increased by the Legislature during the definite term for which he was appointed.</p> <p>2. -:-: New Statute: Amendment or Repeal. An act of the Legislature repealing and reenacting, at the same time, a preexisting statute, is but a continuation of the latter, and the law dates from the passage of the first statute. So that, although the Act of 1909, in terms repealed Sec. 6192, R. S. 1899, which fixed the salary of police detectives at $1080, yet as section 6192 was amended only by changing the salary from $1080 to $1380 and was otherwise reenacted, and both said sections and the Act of 1909 dealt with the same general subject, the Act of 1909 was, in legal effect, an amendment of Sec. 6192, R. S. 1899; and as relator was appointed, on February 17, 1909, for a term of three years, and was not reappointed after the Act of 1909 went into effect on June 14, 1909, the amount of his salary is to be determined by section 6192, and he was not entitled to the additional compensation of $300 a year from June 14, 1909, to February 17, 1912.</p> <p>3. PUBLIC OFFICER: Definite Term: Power to Remove at Pleasure. Power of a board of police commissioners to remove a policeman at pleasure implies that the officer has no term of office; but where the statute expressly provides for appointment of policemen for a term of three years, but qualifies this by vesting the board with power to remove without a hearing either (1) when the number of police officers exceeds the number needed or (2) when there are insufficient funds to pay the force as constituted, it does not vest the board with power to remove at pleasure, but simply with power to remove for cause without a hearing. And a police officer appointed in pursuance to such statutory power has a definite term of three years.</p> <p>4. -: -: -: Meaning of For Cause and Hearing. Constitutional or statutory provisions which allow the removal only for cause, or for cause and after notice and hearing, do not apply to a dismissal for some reason other than his own act or default, and where there is no intent to appoint another in his stead.</p>

— Eon. James D. Barnett, Judge. (1) The regularity of the proceedings in the original suit on the note for $6400, preliminary to the judgment and the execution, cannot be questioned in this proceeding, which is wholly collateral to and independent of that suit.

<p>1. CORPORATIONS: Failure to Register: Penal Statute: Civil Liability. The Corporation Registration Act of 1913, Laws 1913, p. 171, is penal in its nature, and must be strictly construed in determining the liability of the directors of a corporation, as partners, for its debts.</p> <p>2. -:-: Power of Secretary of State to Forfeit Charter. The charter of a corporation doing business in this State cannot be forfeited solely because it has failed to file its return as required by the Corporation Registration Act. Before the Secretary of State can declare a forfeiture and cancel the certificate of such a corporation, he must have on file in his office the certificate of the recorder of deeds of the county in which said corporation is located, showing that the name of the corporation so failing was posted in his office for twenty days as required by section 8 of the act, etc.</p> <p>3. -:-: Business Before Forfeiture: Prosecution. No prosecution can legally be sustained against the incorporators for an exercise or.attempt to exercise its’corporate privileges and powers, nor can the directors be held personally liable as partners for its debts, until the charter rights and privileges of a corporation to do business in this State have been forfeited and cancelled by the Secretary of State, as provided by sections 12 and 20 of the Act of 1913. It is only for acts or business transactions done after the forfeiture of the charter that the directors can be held to be either criminally or civilly liable.</p> <p>4. -: -: Date of Forfeiture. The date on which the forfeiture and cancellation of the charter of a corporation are actually entered upon the books in the office of the Secretary of State, and not some previous day on which the entry recites the charter had been forfeited and cancelled, is the true date of the forfeiture and cancellation.</p>

<p>Appeal from Putnam Circuit Court. — Now. G. W. Wanamaker, Judge.</p>

— Ho». Charles D. Stewart, Judge. (1) The findings of fact and judgment in the former suit, case No. 6901, taken in connection with the opinion of the Supreme Court are final upon all parties to that action on all the issues which were submitted to the court in that cause, or which might have been submitted to the court in that cause, and were there determined, until the same have been reviewed, set aside or altered by the action of the circuit court in pursuance of the…

<p>1. COSTS OF LITIGATION: Trusteeship: Accounting: Construction of Will: Fraud. Although a suit in which the petition charges the defendant, named in a will as trustee for his improvident brother, had violated hie trust, had wrongfully appropriated the brother’s property to himself, had. been guilty of actual fraud, and praying that he be removed and compelled to render an accounting, which allegations are strenuously denied and resisted throughout by said trustee, incidentally involves a construction of the will, it is not essentially a suit to construe a will; and having been found guilty of fraud and removed, the trustee in the subsequent accounting is not entitled to have the costs he incurred and the attorney’s fees which he paid in making the fight against his removal for misconduct, charged against the .trust fund, but the costs should be charged against him.</p> <p>2. COSTS OF TRUSTEESHIP: Incurred in Violation of Trust. The expense incurred by the trustee in administering the fund in violation of the trust cannot be taxed against the trust fund. Where the trustee by fraud obtained from the unfortunate beneficiary a deed to .the trust property, which he afterwards administered without compensation, he cannot, when removed and compelled to account, reach back and be compensated for such administration.</p> <p>3. -: -: Commissions for Sale of Real Estate. In an accounting by the trustee removed for misconduct, he is not entitled to commissions on the price of real estate which he sold in violation of the trust instrument, although the price obtained is accepted.as and for the land.</p> <p>4. INVESTMENT OF TRUST FUNDS: Prudence Required: Outside of Court’s Jurisdiction. ' A direction in a will to the trustee “to manage such trust fund, and to make the same productive in such manner as he may deem most safe" and advantageous” did not authorize the trustee to disregard the rules prescribed by equity for the investment of trust funds, one of which is that the safety of the fund is a primary element. Safety does not mean simply that in the honest course of events the security will be paid. It means that its payment may be enforced through the operation of the governmental power to which the trustee has rightful access, and without recourse to the laws and governmental machinery of foreign nations.</p> <p>5. -: In Mexican Bonds. An investment in 1906 of the trust fund in the bonds of the State of Jalisco, Mexico, with no other specific direction in the trust instrument to the trustee than “to manage such trust fund, and to make the same productive in such manner as he may deem most safe and advantageous,” was not in keeping with the rules which equity prescribes for the investment of trust funds, if done without consulting the beneficiary, although the trustee was perfectly honest in his faith in the then Mexican regime, and although hankers and trust companies in the community invested their own funds in the same series of bonds; and the trustee, when compelled to account, must take the bonds, and respond for the amount of cash invested in them.</p> <p>6. -: Buying Property From Himself or Investing in His Own Name. The trustee cannot lawfully buy his own property from himself for the purpose of the trust. Nor can he buy bonds in his own name, and afterwards transfer them to the trust estate and pay himself out of tie trust fund. Nor does it make any difference that the sale is intrinsically a fair one and for a full consideration.' A trustee who invests trust funds in his own name violates a rule which equity has established to secure such funds from mismanagement and waste and becomes personally responsible.</p> <p>7. -: Investment in Personal Securities. It is not a sound discretion for a trustee to invest the trust fund in mere personal securities, or to subscribe trust funds to new enterprises of which the result is necessarily experimental. It is not a sound discretion to invest trust funds in the bonds of a corporation organized for the purpose of constructing an independent railroad bridge across the Mississippi River at Alton, Illinois, the bonds being “predicated” upon a supposed unsecured personal contract of a single railroad company to use the bridge for crossing trains when it should be completed. The trustee should be required to take the bonds, and account for the money invested in them, with interest on the face of the bonds.</p> <p>8. TRUSTEE’S COMPENSATION: For Administering Corpus of Estate. Even though the trust instrument allows the trustee a commission upon and to be paid out of the body of the estate, a court of equity may exercise a discretion as to whether such compensation will be allowed, and where the trustee has been guilty of misconduct, which proceeded not from honest ignorance, but from a desire to use his fiduciary relation for his own profit, and in the pursuit of such desire has been guilty of actual fraud, and has resisted at every step the beneficiary’s suit to recover his property, putting him to long and expensive litigation, the trustee will not, upon being removed, be allowed any commission on the corpus of the trust estate, whether realty or personalty.</p> <p>9. -: On Income: Five Per Cent. With the trust fund restored to a productive condition, and the trust instrument allowing him compensation on the income of the fund, the trustee should, in this case, be allowed compensation at the rate of five per cent on the gross amount of the income during his administration, even though he has been guilty of actual fraud in managing the corpus of the estate and in other respects has not invested it according to equity rules.</p> <p>10. -: Conversion: Interest as Penalty. Where the uninvested part of the trust fund was deposited in a bank to the cre'dit of the real estate firm of which the trustee was a member, and the credit balance of the account was always in excess of the amount of such un- • invested part, and the trustee used reasonable care to keep the fund invested, and there is nothing in the circumstances to indicate that the trustee' was guilty of a wilful violation of the general rule forbidding the mingling of trust funds with his own, he should be required to account for the actual interest earned by the part of the trust fund so deposited, but should not be held as for conversion and required to pay as a penalty the legal rate of interest.</p> <p>11. --; Interest on Fund Loaned to Trustee’s Corporation. The loaning of the trust fund by the trustee to a real estate corporation one half of whose stock is owned by him, is not necessarily equivalent to the use of the money by the trustee in his own business; and interest, the trustee is not, in this case, chargeable with the profits the corporation makes, or with compound legal interest as a penalty.</p> <p>12. --:-: Commission for Making Loans. And where the loans were made to such corporation and renewed by the trustee without the intervention of a broker, but directly, the trustee should not be charged with the commissions customarily charged by brokers for making and renewing loans.</p> <p>13. -: -: -: Made from Trust Fund: Right of Partner. Where the real estate firm of which the trustee was a partner made a loan of the trust fund, the partner having no personal connection with the transaction, which was consummated by the trustee alone, whatever settlement was made between them cannot be used to determine the right of the trustee to be allowed one-half of the commission charged to the trust fund and received by the firm for making the loan.</p> <p>14. -:-:-: Covered by General Commission. Where the trust instrument provided only for the payment of actual expenses and reasonable compensation, and the trustee is allowed five per cent upon the gross income, he cannot be allowed an additional commission for loans of trust funds made by the firm of which he is a partner.</p>

<p>1. MANBAMTJS: Clear Right. In order that a writ of mandamus may be available it is essential that relator have a clear right to the thing demanded, and that it is the imperative duty of respondent to perform the act prayed for.</p> <p>2. PARTY TO SUIT: Interest in Result: Binding Effect of Judgment. Whenever a party is interested in the subject-matter of pending litigation, and is placed in the control and management of the defense therein, he is just as much bound by the judgment in the cause as the real defendant in whose name the defense is made.</p> <p>3. -: -: -■: Drainage District and County: Mandamus Pendente Lite. In a suit by the contractor for the construction of a drainage district organized under the “county court law,” brought-in the Federal court against both the county and drainage district, for the balance claimed to be due him for work 'done, from which the drainage district was discharged upon its own demurrer, and thereafter was reorganized under the Act of 1913 as a “circuit court” district and took charge of the defense of the suit still pending against the county, against which a judgment was rendered, it is just as much bound by that judgment as is the county. And if the suit is still pending on appeal in the Federal court, the drainage district cannot maintain mandamus against the county treasurer to compel him to turn over to it to be used for other purposes, money raised by benefit assessments which the judgment makes available for the payment of the judgment against the county, in case it is affirmed on appeal.</p> <p>4. JURISDICTION OF FEDERAL COURTS: Recognition by State Courts. It is the duty of State courts to recognize and acknowledge the jurisdiction of Federal courts in all. matters in which'by the Constitution of the United States and laws of Congress in harmony therewith they have been vested with jurisdiction, and not to attempt to anticipate or disregard or override a judgment of a Federal court in a pending case of which it has jurisdiction.</p>

<p>1. GRAIN WEIGHING: Necessity for Violation of Statute: Quo War- ■ ranto: Valid Statute. In a quo warranto, brought by the Attorney-General against a corporation known as a grain exchange, wherein the information charges that the corporation has been guilty of-weighing grain received into and discharged from public warehouses and elevators, and of issuing weight certificates, and has thereby usurped privileges not granted to it, but expressly forbidden by statute, to which respondent in its return sots up facts which show that it is violating both the spirit and letter, of the statute, its reasons and imagined necessity for violating the statute are wholly immaterial, if the statute is a valid one. Seeming hardships are no excuse for a corporation to do things which the'State had forbidden it to do.</p> <p>2. CONSTITUTIONAL LAW: Fundamental Rules on Question of Validity. There is a legal presumption of the validity of a statute; if there is doubt as to its constitutionality, the doubt will be resolved in favor of its validity; the expediency or inexpediency of a statute is not for the courts to determine; the power of the Legislature to enact laws has no limitation except the express limitations enumerated in the Federal and State Constitutions; and the legislative power under the police powers of the State is very broad.</p> <p>3. -: Police Powers: Undefined. The police powers of the State fall within a practically undefined field. They are undefined because the field of the public health, peace, safety and welfare is a very broad one, and there are many angles from which to view it.</p> <p>4. -: -: Private Rights: Grain Inspection. Statutes which invade private rights are invalid unless they can be sustained as a reasonable exercise of the police powers of the State. A grain inspection law which does not tend toward the general welfare is invalid.</p> <p>5. -: -: Grain Weighing: By State. The statute (Sec. 63, Laws 1913, p. 354) which makes it “unlawful for any person, corporation or association other than a duly authorized and bonded State weigher to issue any weight certificate or to issue or sign any paper or ticket purporting to be the weight of any grain” received into or discharged from any public warehouse or elevator, and requiring expert grain inspectors to grade and weighmen to weigh such grain and to issue receipts or certificates certifying to both grade and weight, to be appointed by the State, was designed to provide a" disinterested agency for the protection of farmers, warehousemen, millers and bankers, and to so hedge about the grading, weighing and selling of grain as to prevent all kinds of fraud, and tends to promote the public welfare, and is a valid and reasonable police regulation. [Distinguishing State ex inf. v. Goffee, 192 Mo. 1. c. 679, 688, in which the statute there under review did not prohibit the giving of a weight certificate by persons other than State officials.]</p> <p>6. GRAIN WEIGHING: Certification: By Both State and Board, of Trade. .The said statute cannot be so construed as to permit the weighing and certification of weights by both State weighmasters and the corporation constituting the grain exchange. The law does not prohibit the owner from weighing his grain before it is sent to or put in or after it is withdrawn from a public warehouse, in order that he may have evidence to refute the prima-facie showing of the State’s certificate of weight; but the statute excludes all other except State weighmasters from giving weight certificates, and it cannot be otherwise interpreted without thwarting its purpose.</p> <p>7. -: Interference With Interstate Commerce. The statute providing for the inspection and weighing of grain at public warehouses by State inspectors and weighmasters and forbidding all other persons and corporations to certify to the grade and weight of such grain, does not interfere in any material sense with interstate commerce. It does not purport to regulate interstate commerce, but is made applicable solely to citizens of and property in the State.</p>

Habeas Corpm. (1) It is no offense to be tbe custodian of a bet or wager upon a trial of skill, speed or power of endurance of man or beast. Ex parte Roberts, ,157 Cal. 472.

Ancillary Proceeding in Quo Warranto. (1). This court has no original jurisdiction of a garnishment proceeding, for the reasons: (a) Its jurisdiction is appellate only except as otherwise prescribed by the Constitution. Constitution, art. 6, secs. 2 and 3. (b) The original jurisdiction here is limited to high prerogative writs of a governmental nature, and garnishment is not such. Constitution, art. 6, sec. 3; Yail v. Dinning, 4A Mo. 215.

<p>1. APPEAL: Due Process of Law. Any person entitled by statute (Sec. 2040, R. S. 1909) to take an appeal may take the same at any time during the term at which the judgment or order complained of was rendered; and to deny him such right is to deny him due process of law, for to deny to some persons a right which is allowed to others similarly situated is to deny them due process of law.</p> <p>2. -: Denial After New Trial Allowed and Dismissed. After a verdict for defendant has been returned, and a motion for a new trial has been sustained on the ground that the verdict is contrary to the weight of the evidence and thereupon plaintiff dismisses the. case without the knowledge or consent of defendant, defendant’s application for an appeal from the order granting a new trial cannot be denied.. In other words;' a plaintiff, after a trial had and verdict rendered for defendant, which verdict is set aside upon plaintiff’s motion for a new trial, cannot take a nonsuit pending the term at which the trial was had, against the consent of defendant who prays an appeal from the action of the court in granting the new trial.</p> <p>-:-: Right of Dismissal. A plaintiff will not be permitted tp dismiss, to discontinue or to take a nonsuit, when by so doing he will obtain an advantage and defendant will be prejudiced or oppressed or deprived of a just defense; and where a dismissal is attempted without defendant’s consent, an appeal to determine the controverted matter of whether or not defendant was hurt by the order from which the statute allows him an appeal cannot be prevented by such dismissal.</p>

Prohibition. (1) The real and vital question in the ease is this: The facts pleaded-in the information do not authorize the Pike Circuit Court as a court of equity to entertain the proceeding and pass a decree. - (a) The bill exhibits no equity and is not susceptible of any conceivable amendment whereby it can be made to show jurisdiction in a court of equity over the subject-matter. The defect is not of form but of substance.

— Eon. Sterling E. McCarty, Judge. (1) The Act of March 27, 1913, is unconstitutional: (a) Because in contravention of section 28 of article 4, providing that no bill shall contain more than one subject which shall be’ clearly, expressed in its title.

Certiorari. If the rule in Springfield Steam Laundry Co. v. Insurance Co., 151 Mo. 90, is applicable to this case the Court of Appeals has refused to follow that rule. That court says it is not applicable.

<p>1. CONSTITUTIONAL LAW: Presumption of Validity: Harmonizing. Tbe presumption must always be indulged that the Legislature did not intend to violate the Constitution, and the burden is on him who asserts an act is invalid or meaningless. Acts of the Legislature and provisions of the Constitution must be read together, and so harmonized as to give effect to both, when this can be reasonably and consistently done.</p> <p>2. —-: -: Counties May Mean City. The term “counties” found in the Act of 1913, which requires prosecuting or circuit attorneys of cities having five hundred thousand inhabitants to attend coroner’s inquests and declares that for such services they shall be paid ten dollars for each inquest, “to be paid as other costs by the respective counties,” should, in view of section 23 of article 9 of the Constitution and section 3508 and sub-division 19th of section 8057 of the Revised Statutes 1909, be construed as including the city of St. Louis, and when so construed the act is not meaningless.</p> <p>3. -: Class Legislation: Applicable Only to One City. The Act of 1913, Laws 1913, p. 110, requiring “prosecuting or circuit at- ' torneys of cities that now have or may hereafter hhve five hundred thousand inhabitants or more” to attend coroners’ inquests and make an investigation concerning the cause of death and declaring that for said services there shall be taxed as costs “in favor of said prosecuting or circuit attorney” a fee of ten dollars for each inquest, “to be paid as other costs by the respective - counties,” was not intended to apply to the city of St. Louis alone, but is applicable to all counties having a population of five hundred thous- and inhabitants or more and to all cities which by law sustains the same functional relation to the State as do counties, and’when so viewed, although its language is ambiguous, is not special or local.</p> <p>4. -: Increase of Salary. An act which enjoins on an officer new and additional duties and provides .merely a compensation therefor, is not violative of the provision of the Constitution prohibiting any increase in the pay of an officer during his term of office. The Act of 1913, Laws 1913, p. 110, requiring the circuit fttorney of the city of St. Louis to attend coroner’s inquest in cases of death occurring by violence and which may be the result of a felony, to make an investigation concerning the cause of the death, cause any witness he may desire to be brought before the coroner, and the coroner to permit him to assist in the interrogation of witnesses for the full development of the circumstances leading up to the death, all for the purpose of informing the circuit attorney concerning any possible criminal charge that may grow out of said death, and declaring that for said services there shall be taxed as costs a fee of ten dollars in favor of the- circuit attorney for each inquest, “to be paid as other costs,” is not invalid as increasing the pay of the circuit attorney who was in office at the time the act was passed, but as it enjoins on him new and additional duties he is entitled to be paid ten dollars for each inquest.</p>

<p>CONDEMNATION: School Property for Street Purposes: Public Policy. The power of a city to condemn property for street purposes is limited to the condemnation of private property, and does not extend to property of the State held for the State by a school district or other subordinate agency of the State, as distinguished from other corporations; and if public policy demands a different rule, the remedy is with the General Assembly, and not with courts.</p>

Mandamus. (1) Relator was entitled to file its statement certifying that it was incorporated under the general laws of the State in 1896 and that its articles of association had been amended by its stockholders by adding a new section stating that “the life of said corporation shall extend for a period of fifty years from the date of its creation,” and the Secretary of State should have duly certified to the same without the payment of any tax.

— Row. Frank Kelly, Judge. (1) Injunction is the proper remedy, (a) Injunction will lie here because the damage proposed to tbe public highway-will be a continuing one in depriving plaintiff of the use of a public thoroughfare and the damages would not be capable of an approximate assessment.

— Hon. Harris Bob- ‘ inson, Judge. (1) The peremptory instructions should have been given. There was no proof of any actionable negligence. The jerk or jolt of the train was not unusual or violent and therefore not negligent. Hedrick v. Railroad, 195 Mo. 104; Waite v. Railroad, 165 Mo. 612; Erwin v. Railroad, 94 Mo. App. 289; Bartlett v. Railroad, 148 Mo. 124; Howell v. Railroad, 149 Mo. App. 621.

<p>1. TAXATION: Assessment: Changed by City Board. The Board of Equalization of the city of St. Louis has no power to place a valuation upon property within said city which is different from the valuation placed by the State Board of Equalization upon all property of the same kind and class throughout the State. Where the city assessor valued corporate company bank stock within the city of St. Louis at $65,738,690, and the State Board of Equalization equalized the assessments of banks throughout the State and fixed the valuation at fifty per cent of the aggregate returned by the various assessor’s, thereby placing a valuation of $32,688,450 on the stock of banks in St. Louis, the Board of Equalization of that city has no power to place the aggregate assessment against said banks at $46,017,083; or at seventy per cent of the original valuation certified by the assessor.</p> <p>2. -: Uniformity. The primary and dominant idea of the Constitution is that all property of the same class and value shall bear the same burden. Uniformity of burden is the thing that it attempts to accomplish. That principle requires that all property of the same class within the territorial limits of the authority levying the tax shall be taxed at the same rate. A State tax must be apportioned uniformly throughout the State.</p> <p>3. -: -: One Standard of Valuation. There is no provision of law authorizing different standards of valuation in different counties. The law clearly and expressly requires that for the purpose of valuation all property, in the State, regardless of where situate, shall be valued by the same standard.</p> <p>4. -: -: Tower of State Board: Increase and Reduction of Values: By Classes. In order that all property throughout the State may be assessed at its true value, the State Board of Equalization is given power to adjust and equalize the value of property among the several counties, and to do that it is required to add to the valuation of each class of property of each county which it believes is below its real value such a per cent as will bring its valuation to its true value, .-and to deduct from the valuation of each class of property of each county which it believes is valued above its real value such a per cent as will reduce the valuation to the true value. The State Board of Equalization was created primarily to secure and guarantee uniformity and equality in the burdens of taxation throughout the State.</p> <p>5. -: - — : Increase by County Board. A county board of equalization cannot either reduce or increase the valuation of a class of property within the county fixed by the State Board of Equalization.</p> <p>6. -: -: -: Section 11403. The proviso in Sec. 11403, R. S. 1909, declaring “that such board shall not reduce the valuation of the real or personal property of a county below the value thereof as fixed by the State Board of Equalization,” does not authorize the county board to change and increase the valuation fixed by the State board on banking corporations, but was an admonition to the county -board that in equalizing One piece of property with another they should so proceed that the county’s aggregate would not fall below the value fixed by the state board; it was intended to apply to the relations between the state board and local boards. It does not permit a county board to increase the assessment upon a certain class of property fixed by the state board.</p> <p>7. -: -: Unconstitutional Act: Banks. The General Assembly could not in- terms provide that the property of banks in the city of St. Louis should be assessed'at a value different from the property of banks in other parts of the State, nor could the State Board of Equalization assess the property of banks in St. Louis at a value different from that placed upon banks in other parts of the State; and what cannot be done directly cannot be done through indirection — by a county board, for instance.</p>

<p>1. STATE SUPERINTENDENT OF SCHOOLS: Vacancy in Office. If a vacancy occurs in the office of State Superintendent of Public Schools it is to be filled by appointment by the Governor, and such appointee holds for the residue of the term. Even though • such vacancy occurs in the year in which a Presidential election is held and prior thereto, there is neither constitutional nor statutory authority for filling it by election for the remainder of the term at such Presidential election.</p> <p>2. -: Constitutional Office: Vacancy: Meaning of Next General Election. The office of State Superintendent of Public Schools is a constitutional office, created by the Constitution, its term fixed thereby, and the times at which elections are to be held to fill the office are likewise fixed by it. The Constitution in creating seven executive offices, in section 2 of article 5, and declaring that their terms shall be four years “from the second Monday in January after their election,” that six of them should be elected at Presidential elections and that “the Superintendent, of Public Schools shall be elected at the general election in the year 1878, and every four years thereafter,” and in declaring in section 11 of article 5 that “when any office shall become vacant, the Governor, unless otherwise provided by law, shall appoint a person to fill such vacancy, who shall continue in office until a successor shall have been duly elected or appointed and qualified according to law,” meant that, as to constitutional offices, the appointment to fill a vacancy was to be for the residue of the term; and the statute (Sec. 10918, R. S. 1909) in declaring that in case of a vacancy in the office of Superintendent of Public Schools “the Governor shall fill the same by appointment, who shall hold his office until the next general election,” must he harmonized with these constitutional provisions, and when this is done the words “next general election” used in the statutes mean the next general election for the election of Superintendent of Public Schools. This view is emphasized by the legislative interpretation of said constitutional provisions’ (Secs. 11803 and 11805, R. S. 1909) and by constitutional interpretation as well (Sec. 16, art. 5).</p> <p>3. -: Vacancy After Primary Election. Held, by GRAVES, C. J., with whom BOND, J., concurs, that where a vacancy occurs after a primary election in an office to be filled at the next succeeding general election, or within sixty days prior to such primary, section 5870, Revised Statutes 1909, authorizing a party committee to fill “vacancies occurring aiter the holding of a primary,” does not apply; but when all the statutes governing general and primary elections are read together, as they should be, notwithstanding the primary election laws are later enactments, it is clear that section 5870 was meant to apply only to an office for which there could have legally been a candidate at such primary.</p>

<p>1. LIMITATIONS: Action on Policy: Extended Insurance: Forfeiture. The statute (Sec. 7897, R. S. 1899) expressly providing that no insurance policy “shall, after payment upon it of three annual payments, be forfeited or become void by reason of non-payment,” is a part of the policy contract, as much so as if it were written into the policy, and the liability for extended insurance is a liability under the policy, the policy being simply extended by force of the statute; and a suit on a policy claimed to have been extended by payments made and the operation of the statute beyond the time of the insured’s death-, is a suit on the policy, and not a liability “created by a statute” in the sense in which those words are used in section 1889, Revised Statutes 1909, declaring that “an action upon a liability created by a statute other than a penalty or forfeiture” shall be barred in five years; and being an action on the policy, is not barred within ten years.</p> <p>2. INSURANCE: Notice of Death: Waiver: Claim for Extended Insurance. The provision in Sec. 6948, R. S. 1909, that “notice of the claim and proof of the death shall be submitted to the company in the same manner as provided by the terms of the policy, within ninety days after the decease of the insured,” was manifestly enacted for the benefit of the company, and is a provision that it can waive, and having been waived does not bar the beneficiary’s right to assert a claim for extended insurance.</p> <p>3. -: -: Evidence of Waiver. Proofs of death of the insured made by the insured’s administrators on another policy within thirty days, that thereafter beneficiary’s attorneys, within the time prescribed by statute, wrote the company concerning the policy in suit, claiming that the company was liable thereon, and that the company’s general solicitor replied, denying liability on the policy and declaring that it had been cancelled one year before the insured died, constitute evidence of waiver of formal proofs of death.</p> <p>4. -: Extended Insurance: Loans: Deductions Affected by Subsequent Amendment to Statute. An insurance company is not entitled to deduct from three-fourths of the net value, ascertained by the statutory rule, any loans it had made to the insured on the policy, except loans made on account of past-premium payments; and that rule, fixed by Sec. 7897, R. S. 1899, governed a policy issued in 1901, and such policy or rule was not affected by an amendment to the statute enacted in 1903. The binding force of a contract depends on the laws in existence when it is made.</p> <p>5. -: Cash Option in Lieu of Bonds: Allegata et Probata. Where ' the policy obligated the company to pay fifty one-thousand-dollar bonds, but contained a provision for a cash option of $65,250 in lieu of bonds, to be available upon condition (1) that the policy shall have matured under its terms and (2) that “all deposits previously due thereon shall have been made and the contract maintained and continued in force and effect from date of issue,” the two conditions were eliminated upon the insured’s death within the statutory extended period, by the statute, which was a part of the contract, and, by its force, extended the policy and bound the company “to pay the amount of the policy, the same as if there had been no default in the payment of premium, anything in the policy to the contrary notwithstanding;” and plaintiff by suing for $65,250 in money and offering the policy in evidence as proof of the contract did not plead one contract and prove another.</p> <p>6. -: --: Calculating Net Value. Where the policy obligated the company to pay fifty one-thousand-dollar bonds, but contained a provision for a cash option for $65,250 when the policy “matures under its terms,” a calculation of the net value of the policy based on the assumption that it was one for $65,250 is not wrong, for the policy, by the statute, whi®h is a part of the contract, matured “under its terms” when the insured died within the extended period.</p> <p>7. -: Net Value: Gross or Net Premium. Gross premium consists of the net premium plus loading for expenses and contingencies; net premium represents the cost of insurance; and the insured’s proportion of the “cost of insurance” is the amount he must pay to meet his share of maturing policies; when that is ascertained, according to the mortality tables, and distributed over the premium-paying period, the early payments obviously exceed the cost, and this excess constitutes the reserve or net value, and the actuary does not use gross premiums as the basis of his calculations of net values.</p> <p>8. —-: Forfeiture: Statute. In view of the provisions of Sec. 7898, R. S. 1899, the rule of some courts that an insurance policy containing no provision that non-payment of premiums shall work a forfeiture will not be held to be forfeited by reason of such nonpayment, has no application to a suit upon an extended policy, even though is contains a forfeiture clause; for this statute itself is a non-forfeiture law, constitutes a part of the policy, is mandatory, and covers the whole matter.</p>

— Hon. J. 0. Slate, Judge. (1J Neither the Legislature nor a commission with power to regulate and fix rates, can fix rates so low as to deprive a public utility corporation of a reasonable return on the amount of its investment used in the public service.

<p>1. SPECIAL'TAX BILL: Formation of District: According to Charter. If in the formation of the assessment- district, in a proceeding to pave a public street, all of the material requirements of the charter were complied with, the owner of land therein has no • ground to complain of its formation, when sued upon the special tax bills.</p> <p>2. -: --: Discrepancies. Discrepancies shown by the plat of the benefit district, due to irregularity or curving in the street to be improved, afford no ground for a contention that the district was not formed according to law, if no other subdivision would have produced greater uniformity in the apportionment of the benefit taxes upon the property of the district.</p> <p>3. -: Uniformity of Taxation. The provisions of the State Constitution relating to uniformity and equality of taxation do not apply, to the right of a municipality to make special assessments for local improvements.</p> <p>4. -: Due Process: Notice. The special assessments authorized by section 14 of article 6 of the charter of St. Louis do not amount to taking the owner’s property without due process of law. The procedure authorized by said section in regard to publication of notice to property-owners satisfies the constitutional requirement and constitutes due process.</p> <p>5. -: Area Rule: Validity of Section 14 0f Article 6 of Charter. The Supreme Court of the United States in holding invalid the ordinance under which the property was assessed according to area, in Gast Realty & Investment Co. v. Schneider Granite Co., ■ 240 U. S. 55, did not hold' invalid section 14 of article 6 of the charter of St. Louis, and did not declare that all assessments by the area rule are invalid, but that they are invalid only when they are made in accordance with an ordinance which produces the inequalities and injustice manifested by the ordinance in that case.</p> <p>g.-; Notice of Institution of Suit: Sec. 9848, R. S. 1909: Remedy. Section 9848, Revised Statutes 1909, requiring notice of the institution of a suit to enforce a special tax bill to be filed with the comptroller of the city within ten days after its institution, has no application to a suit on tax bills which became a lien on the property before it went into force; it does not affect the remedy alone, and to give it a retroactive operation would be to deny to the holder of the tax bill the protection of the constitutional provision forbidding the impairment by legislation of vested rights.</p> <p>7. -: Limitations: Two Years After Last Installment. The statute (Sec. 9849, R. S. 1909) expressly provides that an action on the special tax bills is not barred until two years after the last installment has become due; and where the tax bills were issued in seven installments, under a charter provision declaring that tax bills may be made payable in installments of not less than three nor more than seven in number, a suit on all the tax bills begUD before the last installment became due is not barred.</p> <p>8. -: -: -: Amended Petition. If the action was not barred by limitations at the time the amended petition was filed, a judgment on the tax bills cannot be defeated on the ground that the original petition did not .(state a cause of action and the bar of the statute intervened between the time of filing the original and the amended petition, because the defense is based on a premise not founded on fact.</p> <p>9. DEPARTURE: Answering to Merits: Waiver. To render available a contention that an amended petition constitutes a new cause of action and a departure, defendant should stan'd on his objection thereto, and not waive it by answering over and going to trial.</p>

<p>SPECIAL TAXES: Street Improvement: Assessment According to Area and Frontage: Severable. Where the tax bills for a street improvement separately state the amounts due under the front-foot rule, as well as those due under the area rule, and the charter authorizes a severable assessment, and the assessment based on the area without requiring an equal depth of the assessment district is held to be unequal taxation and therefore invalid, and the assessment according to frontage is held to be valid, the judgment holding both assessments valid will be reversed and the cause remanded with directions to the trial court to enter up judgment for the amount due based on the front-foot rule, with interest.</p>

Certiorari. (1) The St. Louis Court of Appeals’ action and decision, in so attempting to control and direct relators’ judicial acts and discretion, is outside of, and beyond its jurisdiction, and in 'direct conflict with not only tbe last two controlling decisions of. the Supreme Court, to-wit; State ex rel. v. Holtcamp, 185 S. ~W. 204, and State ex rel. v. Wurdeman, 187 S. W. 259, but also four others of a more remote date, to-wit; State ex rel. v. St. Louis Court of…

<p>1. rarSUBANCB POLICY: Place of .Contract. Where the application for an insurance policy was taken in Illinois, the policy delivered to the insured there and accepted hy him there, and thereupon payment of the premium was made there, the contract was an Illinois contract, notwithstanding the company was a Missouri corporation, with its home office in Missouri, and the policy was signed by its chief officers and made payable at the home office; and the policy being an Illinois contract, is governed by the laws of Illinois.</p> <p>2. -: -: Suit in Equity: Kes Adjudicata. A suit in equity brought in Illinois by an insurance company against the beneficiary of a policy to compel specific performance of an agreement to accept a certain sum in settlement of all claims upon the policy, and to enjoin her from prosecuting any action at, law upon the policy, in which it was decreed that the alleged agreement was void for lack of mutuality, that there was no equity in the case, that the beneficiary has a complete remedy at law, and that the policy was a Missouri contract, and the bill is: dismissed, was not an adjudication that the policy was a Missouri contract, and is not binding upon the Missouri courts when an action at law is brought upon the policy; for the validity of the alleged agreement did not depend upon the question of whether the policy was an Illinois or a Missouri contract, and the company’s liability on the policy was not involved in that suit.</p> <p>3. BES ADJUDICATA: Test. The test of whether or not a former suit in equity is res adjudicata of an issue arising in a subsequent action at law is: Do both actions embrace the same issue, require the same evidence, and, though in different form, call for substantially the same result?</p> <p>4. INSURANCE POLICY: Suicide: Illinois Contract. The Missouri statute (Sec. 6945, R. S. 1909) eliminating from an insurance policy a clause avoiding the policy in case of suicide has no extra-jurisdictional force, and is not available to the beneficiary to defeat suicide as a defense in an action at law brought in the Missouri •courts upon a policy which is an Illinois contract. The statute is but an inhibition against making insurance contracts in Missouri with citizens of Missouri in which the insurer is relieved of liability in the event the insured commits suicide. It does not affect contracts made in other States which contain clauses avoiding the policies in case the insured commits suicide, although the insurer is a Missouri corporation.</p> <p>5. -: -: -: Constitutionality. The Missouri statute which declares that the fact that the insured committed suicide, unless contemplated at the time he made application, shall not avail as a defense in an action on the policy, even when held not to apply to contracts made in other States, - does not violate that part of the Fourteenth Amendment which provides that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.</p>

<p>1. APPELLATE JURISDICTION: Vacating Private Road. A proceeding brought in the county court to vacate a private road previously established so involves title to real estate as to give jurisdiction to the Supreme Court of an appeal from the judgment of the circuit court.</p> <p>2. PRIVATE ROAD: Vacation: Necessary Showing. Under-the statute two things must be shown to authorize an order vacating a private road: first, that a public road has been established to which defendant has access, and, second, that such access is convenient and practical.</p> <p>3. -: -: Necessity or Necessity and Convenience. The statutes are somewhat broader than the rule announced in decisions and textbooks that private roads are ways of necessity, and when the necessity ceases the private way ceases, in that they say the private way is “to connect with some public road at some convenient point,” and that a private way may be vacated if it is made to ■ appear that the landowner has at the time “convenient and practical” access to his land from a public road. If the private way has been established at the expense of the landowner and affords him access to a public road at a “convenient” point, it cannot be vacated until it is made to appear that after its establishment a “convenient and practical” access to a public road has been brought about.</p> <p>Held, by WOODSON, J„ dissenting, with whom BOND and WILLIAMS, JJ., concur, that as the Constitution says that “no private property can be taken for private use, with or without compensation, unless by the consent of the owner, except for private ways of necessity,” private property can be taken by condemnation for a private way only when the way is necessary, and the right cannot be made to rest on convenience; and the statute authorizing the condemnation of land for a private way “to connect with some public road ... at some convenient point” means that the way must be one of necessity and so established as to connect with the public road at a convenient point, and does not mean that a private way can be established when convenient, but not necessary for access or egress; and as private property cannot be acquired by condemnation for one purpose and be held and used for another, a private way so acquired ceases .when the necessity ceases, and its vacation cannot be defeated on. a showing that, though not absolutely necessary, it affords a “convenient and practical” access to a public road; and if the statute so means it would be unconstitutional, for it would be to authorize the landowner to acquire a permanent use in land without just compensation, since in acquiring the private way he paid for only a temporary use.</p> <p>4. -: -: -: Increased Travel. Since the establishing of a private way from a public road to defendant’s dwelling on the southern portion of his property, another public road which is a mere cul de sac has been established, which reaches his land a half mile north, and to reach his usual trading point by it, he would have to travel' about a half mile north, then east along the cul de sac road a like distance, and then south a half mile, before reaching a point on the main public road touched by the. private .road. Held, that, in determining whether the access afforded by the cul de sac road is “convenient and practical” the location of defendant’s; dwelling, as well as all other facts, must be considered, and also the fact that the owner was compelled to pay damages for the present private way; and under the facts, the private way should not be vacated.</p> <p>Held, by WOODSON, J., dissenting, with whom BOND and WILLIAMS, JJ„ concur, that the evidence shows that the private way has ceased to be a way of necessity, and is only a way of convenience, and should be vacated.</p>

Prohibition. (1) A court of equity has no jurisdiction to enjoin relator from sitting at the hearing. Secs. 9771, 9776, 9784, 9785, 9769, R. S. 1909. The statute created, not a judicial board, but an administrative board, prescribed its duties, prescribed the manner of organizing a police force, and an exclusive manner of removal. The only way to remove respondents Hammil and James is the one prescribed by the statute, and this way has been followed.

Louis City Circuit Court. — lion. D. D. Fisher, Judge. (1) The trial court erred in refusing to instruct the jury on all the questions of law arising in the case and necessary for their information in reaching a correct verdict. Sec. 5231, R. S. 1909. (2) The. court erred in refusing to instruct the jurors on the law of self-defense, although requested so to do by the defendant.

<p>1. SLEEPING CAB.: Power of Public Service Commission. The Public Service Commission is given power by statute to require railroad companies, under a proper state of facts, to furniáh sleeping cars for the transportation of passengers, either for their “comfort or convenience” or as an “adequate” equipment or service.</p> <p>2. —-: -: Necessity. Sleeping cars on railroads cannot be classed as mere conveniences or luxuries. They have become necessities of modern industrial, commercial and social life; and as such, under a proper state of facts, the Public Service Commission may compel a railroad company to supply them as an adequate passenger transportation equipment.</p> <p>3. -: -: Facts Showing Necessity. A showing made by complainant that for nearly thirty years the railroad company maintained a sleeping-car service on its railroad from Pleasant Hill to Joplin and that there has been an increase in population, is sufficient to call from the railway company a clear showing as to the loss if any resulting from maintaining the service; and where, under such conditions, no condition that lessens the necessity for the sleeping car service is shown, and the only excuse for discontinuing the service is that for a little longer than three months the sleeping car had earned only about one-half the rental charge the company had to pay for its use, but that showing takes into account only the amounts it earned on the branch line between Pleasant Hill and Joplin and not what it earned between Pleasant Hill and Kansas City and between Pleasant Hill and St. Louis, the Public Service Commission was justified in making an order requiring the company to furnish a sleeping car for one year, and to keep an account of its full earnings, and permitting it, if it wished, to make application at the end of the year for a change in the order.</p> <p>4. -: -: Loss on Branch Line. If a sleeping car on the branch line of a railroad is necessary for the comfort or convenience of the traveling public, the fact that before its discontinuance it was operated at a financial loss, will not render unreasonable an order of the Public Service Commission requiring its installation, if the whole- service of its class and kind on tne entire railroad is profitable. The fact that a sleeping-car service on a branch line, or other isolated portions of the system, results in pecuniary loss, is only one of many facts to be considered in determining the reasonableness of an order requiring the service. It will not of itself render the order invalid.</p> <p>5. PUBLIC SERVICE COMMISSION: Party to Order: Notice: Untimely Objection. An objection that the receiver of a railroad, required by the order of the Public Service Commission to install a sleeping-car service over a branch line, was not brought before the commission by proper notice, made for the first time in the motion for a new trial in the circuit court, comes too late. The statute declares that no such objection shall be considered unless set forth in the application for a rehearing by the commission.</p>

<p>1. ORDER OF PUBLICATION: Different Number in Order and Suit. An order of publication differently numbered from tbe action in which judgment is rendered for taxes, and differing as to name of one of the defendants, is properly admitted in evidence in rebuttal to defendant’s claim under a tax sale and deed executed under the judgment, and justifies the court in finding that it was the only process issued against the only defendant named in both order and judgment, if no objection is made when it is offered that it was an order made in a different suit.</p> <p>2. -: Different Recitals in Judgment. A recital in the judgment of proper service of process upon a defendant in a tax suit must' yield to a recital in the order of publication, if the two conflict.</p> <p>3. —i-•: Wrongfully Naming One Defendant. A judgment for taxes is not to be held void, in a collateral attack to' quiet title, for that the order of publication to the defendants which rightfully named the one defendant who was the owner, wrongfully named another defendant. As to the defendant correctly named the judgment is not invalid because another defendant’s name was incorrectly given in the order. .</p> <p>4. -rDescription of Land. An order of publication in a tax suit which describes the land as “S. W. 4, sec. 22-31-2 W” is void, and a judgment based thereon is void. Under the statute (Sec. 1879, R. S. 1909) the letter “T” may stand for township, and the letter “R” for range; but to omit both the words and letters is to render the statute useless and meaningless.</p>

Louis City Circuit Court. — Hon-. Leo S. Rassieur, Judge. Where the same cause of action is sued on in different counts, and judgment is for plaintiff on one count and for defendant on the other, “the reversal of the judgment, without qualifying or limiting the scope of the order of reversal, and the return of the cause to be again tried, reversed the entire judgment and opened the case for a retrial of the entire controversy.” Wollman v. Loewen, 108 Mo.

Louis City Circuit Court. — Ho». George II. Shields, Judge. The trial court erred in not awarding alimony and rendering judgment therefor against the real estate set forth in the petition and publication. (1) If a defendant is not personally served and does not enter a voluntary appearance, a personal judgment cannot be rendered.

<p>1. GENERAL VERDICT: Forgery. If tbe different counts of tbe information charge distinct offenses, a general verdict of guilty cannot be upheld. Where the first count charges defendant with the forgery of a certain promissory note, and the second count charges him with having the same forged instrument in his custody and possession with intent to utter it, a general verdict of “guilty of forgery in the third degree, as charged in the information” cannot stand.</p> <p>2. FORGERY: Comparison of Handwriting: Improper Admission. Error in the admission in evidence of a note purporting to be signed by a party whose name defendant is charged with -having forged, improperly admitted at the time because the signature of the party has-not been identified, is removed by the subsequent qualification of the witness who identifies the signature.</p> <p>3. -: -: Statute. The old rule that no paper offered for the sole purpose of furnishing a comparison with a writing alleged to be forged is competent where it would be an issue for the jury to determine whether the alleged genuine signature was in fact genuine, is modified by the statute (Sec. 6382, R. S. 1909) which requires the paper to be “proved to the satisfaction of the judge to be genuine;” and the very fact that he admits it in evidence is conclusive that he found it genuine, although his finding is not necessarily binding on the jury, for the statute notwithstanding he admits it in evidence requires that “such writing and the evidence respecting the same may be submitted to the court and jury.”</p>

Louis Court of Criminal Correction.— Hon. Calvin N. Miller, Judge. (1) The court erred in not discharging defendant on his several motions, (a) It is incumbent upon the State to prove beyond a reasonable doubt that the alleged abandonment is without good cause and with criminal intent. State v. Doyle, 68 Mo. App. 219; State v. Loving, 184 Mo. App. 82.

<p>INDICTMENT: Physician: Prescription for Intoxicating Liquor. The opinion of the Springfield Court of Appeals in this case, -Mo. App.-, 184 S. W. 1183, concerning the sufficiency of an indictment charging defendant as a physician with issuing a certain prescription for intoxicating liquors in violation of Sec. 5784, R. S. 1909, announces the correct rule of law.</p>

— Ho». Alonzo D. Burnes, Judge. (1) Tbe answers being general denials, the only issues presented were whether plaintiff performed any service under tbe contract, and if so, the measure of damages. (2) After plaintiff had entered upon the performance of the contract, Bertha Mitchell, by marrying her co-defendant, made it impossible for plaintiff to perform the contract further on his part. The law regards this a complete performance on his part.