Volume 270 — Missouri Reports

<p>PARTITION: Subject to Life Estate: Agreement Not to Divide. Where three daughters to whom a mother conveyed land subject to a life estate reserved for herself, at her request, entered into a written agreement not to “ask for a division or partition,” the agreement “to continue in force and be binding on each party hereto while they live,” the heirs of one of the daughters who has died are , entitled to have partition, subject to the life estate of the mother. The agreement should not, without good reason, be construed to bind the survivors to continue the cotenancy with the heirs of the . deceased.</p>

— Eon. G. A. Calvird, Judge. (1) When, the defendant Catterlin acquired the Bates County land by purchase under the foreclosure of the Kerns deed of trust, he became a constructive trustee thereof and held the property for the plaintiff. Marston v. Catterlin, 239 Mo. 390; Eoff v. Irvine, 108 Mo. 383; Cameron v. Lewis, 56 Miss. 82; Winn v. Dillon, 27 Miss. 496; Olson v. Lamb, 56 Neb. 104; Galbraith v. Elder, 8 Watts (Pa.), 81; Henry v. Baiman, 25 Pa.

— Hon. James D. Barnett, Judge. ■ (1) The demurrer to the evidence should have been sustained, because, (a) The Maximum Freight Rate Act was suspended for the time being, by force of the injunctive decree of the Federal court. State ex inf. v. Railroad, 176 Mo. 687; Young v. Railroad, 33 Mo. 509; Coal Co. v. Railroad, 52 Fed. 716; State v. Railroad, 130 Minn. 144; Wadley Southern Ry. v. Georgia, 235 U. S. 651; Coal & Coke Ry. v. Conley, 67 W. Va. 129, 230 U. S. 522.

Louis City Circuit Court — Ron, Wilson A. Taylor, Judge. (1) The license tax of one dollar per thousand upon sales levied by the ordinances of the city is an occupation tax, and not a tax upon property. In this respect it is distinguishable from the ad valorem taxes. American Union Express Co. v. St. Joseph, 66 Mo. 681; Clark v. Titusville, 184 U S. 333; Society for Savings v. Coite, 73 U. S. 608; Maine v. Grand Trunk Ry.

<p>CERTIORARI: Quashing Judgment in Like Cases. Where suit was brought on policies of fire insurance against several insurance companies, and appeals were taken by all the defendants from judgments in favor of plaintiff to the Court of Appeals, and in that court the cases were submitted together, the questions involved being the same in all, and that court rendered an opinion in only one of them, disposing of the others by memorandum opinions referring for their rulings to the opinion in the one case, and that opinion is quashed on certiorari as being in conflict with the prior rulings of this court, the judgments in .the other cases will also be quashed upon certiorari.</p>

Frank Kelly, Judge. (1) The sureties guaranteed that the clerk would perform the duties of his office “according to law,” but they did not guarantee that he would perform-them “according to the rules and customs of courts of last resort.” A law is an act, enactment, ordinance, or statute, prescribed by the legislative power, as opposed to rules of civil conduct deduced from the customs of the people, or .judicial precedents. 25 Cyc. 164; Brinckerhoff v: Bostwick, 99 N. Y.…

<p>1. FORGERY: Counterfeiting: Trading Stamps. Trading stamps having on them the words: “Eagle: Stamp of Value 10; Reg. in U. S. Pat. Off.” do not on their face purport to be the pecuniary obligation of anybody, and the making or uttering of them does not constitute counterfeiting or forgery under Sec. 4651, R. O. 1909.</p> <p>2. -: -: -: Pecuniary Obligation. If the trading stamps bearing the word “Eagle” do not purport to be the pecuniary obligation of any one and do not of themselves constitute a pecuniary obligation of some one, an information charging forgery cannot supply these necessary elements by charging that a private company is under agreement to pay two dollars a thousand for “Eagle Trading Sta’mps” when presented in a certain way.</p>

Frank Kelly, Judge. The quitclaim deed made by Jones on October 1,1887, to Bradley and Dillon, prior to tbe time the sheriff’s deed to him had been acknowledged, was void and ineffectual to convey any title whatever to the defendants’ grantors; Accordingly, defendants have no title to the lands in controversy and judgment should have been rendered decreeing title in the plaintiff. 1 Cyc. 560; Coal Co. v. Bates, 146 Ky. 624; Chadwick v. Carson, 78 Ala. 116; Balkum v. Wood, 58…

<p>1. PRACTICE IN SUPREME COURT: Certification from Court of Appeals. A case certified from a Court of Appeals, upon certification that the majority opinion therein conflicts with certain cases of the Supreme Court, is for full review.</p> <p>2. NEGLIGENCE: Vigilant Watch Ordinance: Not in Abstract. Whether or not an instruction permits a recovery against a street railway company if the conductor of the car failed to keep a vigilant watch for vehicles on the, track, in violation of a city ordinance, and is for that reason erroneous, or whether or not the ordinance applies only to motormen, will not be decided, if the ordinance is not preserved in the printed abstract. Courts cannot take judicial notice of municipal ordinances, however great the municipality.</p> <p>3. -: Ringing Bell or Sounding Gong: Proximate Cause. Where both plaintiff and his driver saw and knew of the approaching street car when it was six hundred feet from the place where their automobile was stalled on the track, the failure to give notice of the approach of the car by sounding the gong or otherwise was not the proximate cause of plaintiff’s injury caused by the street car striking the automobile, and an instruction basing his right to recover upon such failure is error. The purpose of sounding the gong is to give notice of, the car’s approach, and if the injured party on the track has actual timely knowledge of its approach, without such sounding, failure to sound the gong cannot be the proximate cause of his injury.</p>

<p>1. PUBLIC ROAD FUND: Devoted to Other Uses. Section 10481, Revised Statutes 1909, in declaring that the tax of not more than twenty cents authorized by it to be credited to the road district from which said tax is collected shall constitute the road fund of the several road districts of the county, forbids the county court to devote the fund to other uses.</p> <p>2. -: Discretion of County Court. The county court has no discretion as to the levying of at least ten cents on the hundred dollars directed by the amendment of 1913 to section 10481, Re- . vised Statutes 1909; its duty to levy and appropriate at least that much to special road districts is compulsory, and'it can divert the tax to no other purpose. Its discretion under that section and amendment pertains only to the levy of an additional tax of "ten cents on the hundred dollars’ valuation'.</p> <p>3. -: Meaning of Statutes. The theory of the statutes (Secs. 10481 and 10483, R. S. 1909) is: (1) that the bridges and roads are to be first taken care of, so far as that duty is developed upon the' ' districts, by the constitutional levy for county purposes, to the extent at least of ten cents on the hundred dollars’ valuation; (2) if that amount is not sufficient for such purpose the county court may raise it to twenty cents; and (3) in its discretion, it may levy the whole or any part of the twenty-five cent special levy authorized by the constitutional amendment of 1908, to be expended in such manner and through such agencies as are charged by law with the establishment, construction and maintenance of roads and bridges.</p> <p>4. -: Transfer to Other Funds: Modified by Road Laws. Section 3786, Revised Statutes 1909, declaring that “whenever there is a balance in the county treasury to the credit of any special fund, which is no longer needed for the purposes for which it was raised, the county court may, by order of record, direct that said balance be transferred to the credit of the general revenue fund of the county, or to such other fund as may, in their judgment, be in need of such balance,” is still live law as to all the revenue of the county remaining within the control of the county court; but the road fund has by later enactments been removed from the court’s control and entrusted to other agents,' to be expended by them for a definite purpose.</p> <p>5. - -: Diverted to Other Funds. Revenue for other county purposes cannot be increased at the expense of the roads. The county court after having made a levy of fifty cents on the hundred dollars for county purposes, the maximum tax it is permitted by the Constitution to levy for those purposes, cannot divert ten cents on the hundred dollars of it to other county purposes, but so much of the fifty cents as is collected from property within a special road district as is levied for road purposes must be' credited to the treasurer or commissioners of such district.</p> <p>6. -: Discretionary Powers of County Court. The Legislature has no power to compel the county court to levy the twenty-five-cent tax on the hundred dollars authorized by the constitutional amendment of 1908, but if the tax is levied the county court can apply it to road and bridge purposes, but to no others. But the county court is compelled to levy at least ten cents on the hundred dollars under See. 10481, R. S. 1909, for road purposes, and that much at least of the general revenue of the county it must apply to the road districts from which the tax arises, to be spent, not by it, but by the agencies which the statute designates.</p>

— Hon. G. B. Faris, Judge. (1) There was no proof of any breach of duty on the part of the company, because the plaintiff’s evidence shows that the methods complained of were those adopted and practiced by railroads generally. Chismer v. Tel. Co., 194 Mo. 189; Brand v. Car Co., 213 Mo. 698; Beck-man v. Brewing Co., 98 Mo. App. 555; Railroad v. Walker, 172 Fed. 351; Tuttle v. Railroad, 122 U. S. 189.

— Hon. Charles D. Stewart, Judge. (1) The State could not have resorted to a court of equity to restrain consignees from selling intoxicating liquors, including beer, and conducting their places and carrying on their business as- stipulation states they did. They were violating the criminal laws of the State and should have been prosecuted under such laws. State ex rel. v. Urig, 14 Mo. App. 413.

<p>1. LIMITATION: Cause Originating in Other State. A cause of action originating in another State if barred in that State when instituted in this State, is by our statute (Sec. 1895, R. S. 1909) barred in this State.</p> <p>2. -: -: Tolling Statute: Commencement of Action. Where the Iowa statute provides that the limitation for actions shall be extended in favor of minors, “so that they shall have one year from and after the termination of such disability within which to commence said action,” the right to institute a suit cannot be confined to commence one suit only, but the minor may institute and dismiss and reinstitute his suit as many times as he sees fit within the limitation fixed by the tolling statute, which declares that “if, after the commencement of an action, the plaintiff, for any cause except negligence in its prosecution, fails therein, and a new one is brought within six months thereafter, the second shall be held a continuation of the first.” The second action is declared to be continuation of the first in order to extend the limitation statute by which it would otherwise be barred.</p> <p>3. -: -: Minor’s Suit: Case Stated. The cause of action originated in Iowa, where both plaintiff and defendant resided. On June 5, 1908, plaintiff’s leg was broken and defendant treated him for the injury. Plaintiff became of age August 14, 1911, and in May, 1912, sued defendant in Iowa for malpractice, and that action was voluntarily dismissed on December 19, 1912. On August 12, 1912, he began this suit in the circuit court of Putnam County, Missouri. The Iowa statute says that such actions shall be brought within two years; that, if plaintiff fails in the first action begun, he may bring a new one within six months thereafter, and “the second shall be held a continuation of the first;” and that “the times limited for actions herein shall be extended in favor of minors, so that they shall have one year from and after the termination of such disability within which to commence said action.” Held, that this action is not barred.</p>

<p>1. CONVEYANCE: Island in River: Not Surveyed: Reservation. An unrestricted deed conveying land bordering on a river, or a Government patent conveying land, adjacent to a non-navigable river, conveys all accretions thereto; and a patent conveying by Government subdivisions lands bordering a non-navigable river conveys all land between the meander line of the shore and the middle thread of the river, unless previous to the issuance of the patent the Government surveyed such lands as governmental subdivisions, or expressly reserved them when not surveyed.</p> <p>2. NAVIGABLE STREAMS: Current River: Judicial Notice. The court takes judicial notice of what streams are navigable and what aré not navigable. Current River is not a navigable water of this State, and will not be conceded to be such although appellant admits it to be in his brief.</p> <p>3. APPELLATE PRACTICE: Inadvertent Admission in Brief. An admission in the record by counsel for appellant which is contradictory of the whole theory of his case and of his brief and argument based upon a contrary fact, will be considered on appeal as having been inadvertently made, or as a clerical error in the writing or printing of the record.</p> <p>4. PUBLIC LANDS: Priority of Field Notes. The field notes of United States surveys of public lands made prior to their conveyance to the State or to private persons, will control in ascertaining corners and lines, even though the monuments established by the surveys cannot be found.</p> <p>5. -: Island in Current River. A small island of a- few acres in Current River, east of the middle thread of the river, existing prior to 1821 when the Government surveyed the surrounding lands, the field notes showing meander lines running along or near the banks of the river, but neither crossing nor touching the island and the survey in no wise mentioning- Oi including but entirely ignoring it, was included in the patent of the fractional Government sub-division of the shore land on the east bank made in 1849, which did not reserve it. It was not reserved and relinquished to the State upon the admission of Missouri to the Union.'</p> <p>6, -: -; purpose of Meander Lines: Include Islands and Overflow Lands. Meander lines run by a Government survey along or near the margin of a non-navigable stream were run for the purpose of ascertaining the exact quantity of upland to be charged for, and not for the purpose of limiting the title of the patentee to such meander lines. Low and overflow lands and small islands within the banks of such a river were included by a patent conveying the land by Government fractional sub-divisions.</p> <p>7. SURVEYS: No Established Corner. A survey which does not begin at a corner established by the Government, or a corner established as required by Sec. 11322, R.. S. 1909, though it otherwise pretends to follow field notes from another corner assumed to be right, is not admissible in evidence, and cannot be used to discredit an official survey made in pursuance to an order of the circuit court under the mandate of Secs. 10184 and 10188, R. S. 1909.</p>

<p>1. DIVORCE: Verification of Petition: Jurisdiction. Unless the petition for divorce is accompanied by the affidavit required by the statute, the court acquires no jurisdiction of the case.</p> <p>2. -: -: Unsigned Affidavit, An unsigned affidavit is no affidavit at all, and where the statute requires an affidavit to accompany the petition, the court does not obtain jurisdiction unless the accompanying affidavit is signed by the proper party. And a divorce decree entered by default upon a petition to which an unsigned affidavit is attached, is void; and especially should an unsigned affidavit in a divorce case be held to be no affidavit at all, because many of the statements which the statute requires the affidavit to include can be known by the petitioner alone, and courts are too often imposed upon in such cases.</p> <p>3. PRACTICE IN SUPREME COURT: Certification from Court of Appeals. When a case is certified from a Court of Appeals to the Supreme Court, upon the dissent and certification of one of its judges, all questions involved are for consideration in the Supreme Court, just as if the case was one appealable to this court in the first instance.</p>

<p>1. MONEY HAD AND RECEIVED: Payment: Judgment on Pleadings. In a suit by the State against a county clerk to recover back money paid, an allegation charging that he had wrongfully and falsely certified to the State Auditor that he had extended the taxes upon the assessor’s book, and by said false certificate had received a definite sum of money from the State for work he had not at the time performed, is covered by a general denial, and a judgment on the pleadings cannot stand, unless the other plea in the answer that the money was voluntarily paid, with full knowledge of the facts, before any of the work had been done, and that the work was afterwards done by him during his same term of office, constitutes no defense.</p> <p>2. -: -: By Public Officers: Mistake of Law. Where all the participants were officers each acting solely in his official capacity, the rule that money paid under a mistaken view of the law, with full knowledge of the facts, cannot be recovered, has no application. In such case the officer receiving the money must find his right thereto in the law; and no subsequent approval, acquiescence or settlement, non-judicial in character, can operate to justify an unlawful act.</p> <p>3. -: -: Before Work is Done: Work Done Before Suit: Purpose of Extension on Assessment Book. The statute (See. 11549, ft. S. 1909) which allows compensation to the county clerk for “services rendered” in “extending the taxes on the assessment book” does not designate the time within which the work is to be done, nor fix a penalty for failure to do it before making out and delivering the tax book to the collector, and the act is such that the time of its performance has no effect upon the validity of the tax, and is important only (1) as an aid to the clerk in correctly extending the taxes upon the tax book and (2) as a permanent public record of the amount of the tax in accordance with the final orders of the county and state boards; and in an action by the State to recover back money from the county clerk, paid by-the State Auditor before the work of extending the taxes on the assessment book was done, but which was done before the action was instituted, there can be no recovery on the theory either (1) of enforcing a penalty for not doing the work sooner or (2) that the payment having been made, the duty to do it ceased and its performance thereafter was a work of supererogation.</p>

<p>1. DRAINAGE DISTRICT: Municipal Corporation. A drainage district is a municipal corporation, and must be provisionally incorporated as such before any step' can be taken looking to the drainage of land embraced therein.</p> <p>2. -: Appeal. The right of appeal from a decree incorporating any municipal corporation is limited.</p> <p>3. -: Property Rights Affected by Incorporation. That a person or his property has been included in a drainage district in no manner affects his rights, provided his property has not been benefited or damaged.</p> <p>4. -: Right to Appeal: For What Things Authorized, Notwithstanding the statute (Laws 1913, sec. 116, p. 241) says that “any person, may appeal from the judgment of the court” in a drainage district case, the subsequent words of the statute limit the inquiry of the appellate court (1) to the compensation allowed for property taken and (2) to the damages allowed for property prejudicially affected by the improvement. It is the taking or damaging of property, and not the incorporation of the district, that affects the owner’s rights and authorizes his appeal.</p> <p>5. -: -: Incorporation. Objectors are not entitled to an appeal from the judgment of the circuit court incorporating a drainage district, if the court has jurisdiction of the subject-matter.</p> <p>6. -: -: -: Raised in Suit on Tax Bill. Whether a drainage district has been legally incorporated or not can be raised in a suit on the tax bills.</p> <p>7. -: -: Incorporated for Unauthorized Purpose. There is a wide difference between a drainage district and a levee district; and while the question of whether a district organized as a drainage district was in fact a levee district may be properly raised on an appeal from a decree incorporating it, since lack of jurisdiction of the subject-matter may be shown in any suit involving it, yet the better practice is to raise the question of legality of incorporation in the suit on the tax bills. [Distinguishing Birmingham. Drainage District v. Milwaukee Ry, Co., 266 Mo. 60, and Elsberry Drainage District v. Harris, 267 Mo. 139.]</p> <p>8. -: -: General Statute Inapplicable. The general statute governing appeals does not apply to a drainage district case. The proceeding in such case is purely statutory, and there can be no appeal unless the drainage act, which is a complete code unto itself, authorizes it.</p> <p>9. --: -: Why Appeal from Judgment of Incorporation is Not Allowed. The decree incorporating a drainage district is preliminary, informal, tentative and conditional and not a final decree adjudicating any one’s rights from which an appeal will lie.</p>

Quo warranto, (1) The burden is on the respondent to establish his right to the office. State ex rel. v. McCann, 88 Mo. 386; State ex rel. v. Powles, 136 Mo. 376. (2) (a) The legal requirement that collectors should be elected in 1906, and every four years thereafter, is, substantially, a direction that no election for that office shall be held in any intervening year. State ex rel. v. Roach, 269 Mo. 500.

<p>1. CONTRACT: Water Supply to Citizens Outside City: Abrogation by Extension of City Limits. An existing contract fixing a rate for water service and bottomed on a valuable consideration, between a private consumer wbo lives outside the city limits, and a public utility company operating within the city, is not abrogated and the parties are not bound by the city’s water rates ipso facto when the consumer is taken into such city by the extension of' its limits. [Overruling State ex rel. Waterworks Co. v. Geiger, 246 Mo. 74.]</p> <p>2. -: Between City and Water Company: Rates Subject to Alteration by City. Under the statute declaring that “when water shall be taken by private individuals from any waterworks not owned by the city, the mayor and common council shall have the right, by 270 Mo — 13 ordinance, from time to time, to fix the rates to be charged therefor,” a public water company is to be held to have contracted with the city with full imputed knowledge of and subject in all ways to all powers and restraints connoted by said statute, and is bound thereby just as fully as if it had been written at large in its franchise contract with the city, and no reduction of rates by ordinance would amount to a violation of the obligation of a special contract between the company and a consumer who stands in exact equality with other consumers. But an independent contract of a water company (which has a franchise contract with the city to furnish water to its inhabitants) to furnish water at higher rates to a consumer outside the city limits, running for a limited and reasonable term, based upon a valuable consideration not paid by city consumers, in which the consumer does not reserve to himself any right of regulation and is not authorized by any statute to regulate rates, is not abrogated or impaired by the extension of the city limits so as to include said consumer, and he does not satisfy the obligation of said independent contract by paying the rates imposed by the franchise contract upon consumers of like amounts of water residing within the city prior to such extension.</p> <p>Held, by WOODSON, X, dissenting, that the consumer in this case (State Hospital No. 2) was not a private citizen, but a public corporation, incorporated for governmental purposes, and both it and the water company contracted with each other knowing the public character of the other and their mutual rights and ■ obligations, and, independent of the contract, it became the legal duty of the water company, after the extension of the city limits, to furnish the hospital water in the same manner and at the same rates it furnished it to others within the extended territory.</p> <p>3. -: Extension of City Limits: Ordinances Applicable to Annexed Territory. The rule that in all ordinary matters and things the ordinances of an annexing city are at once and automatically extended over the annexed territory does not affect existing private contracts which were not subject to regdlation by ordinance at the time they were made.</p> <p>4. ORDINANCE: Void Only in Its Application. An ordinance or statute may be void only in its application. A rate-fixing ordinance may be valid as to all consumers except to those to whom if applied it would impair or abrogate, a valid existing private contract.</p> <p>5. LAW OF CASE: Different Suit. Whether or not it be true that the law as declared by thé court on one appeal continues to be law of that case upon a subsequent appeal, the rule has no application to .a new and separate action.</p> <p>6. -:-: Mandamus: Demurrer Sustained. If it no where appears in the alternative writ that a suit by mandamus has previously been brought, and the facts of a former suit are not set forth therein, an appeal from the ruling of the trial court sustaining a demurrer to the alternative writ is not a second appeal, and hence it cannot he held that the rulings on appeal in a former mandamus case have become the law of this second suit.</p> <p>7. APPEAL: Facts of Former Suit: Judicial Notice. The Supreme Court takes notice of a former appeal and the record thereof, but does not notice the facts and records in one action when called upon to rule another and separate action.</p>

Prohibition. (1) The requirements of the statute as to notice are jurisdictional and must be complied with. Election contest proceedings are everywhere regarded and treated as special statutory proceedings. State ex rel. v. Hough, 193 Mo. 643. They are not civil suits. Castello v. Court, 28 Mo. 277; State ex rel. v. Spencer, 166 Mo. 279; State ex rel. v. Hough, 193 Mo. 643.

<p>1. VENUE: Foreign Corporation. An action by summons against a foreign business corporation , duly licensed to do business in this State cannot be instituted in any county other than the county in which either the cause of action accrued or in which the corporation has and usually keeps an office or agent for the transaction of its usual and customary business. If the cause of action accrued in St. Francois County, and the defendant is a New York corporation licensed to do business in this State and maintains an office and agent for the transaction of its usual and customary business in Jefferson County,, but has no such office or agent in the city of St. Louis, the suit by a citizen of Illinois cannot be maintained in said city. The word “corporations” used in Sec. 1754, R. S. 1909, comprehends foreign as well as domestic corporations.</p> <p>2. STATUTORY CONSTRUCTION: Inclusion of Things Existent and Subsequent:' Corporations. A statute general in terms may be made to apply to conditions non-existent at the time of its enactment. If expressed in words of the present tense it will generally be construed to apply not only to thipgs and conditions existing at its passage, but will also be given a prospective interpretation and applied to such as come into existence thereafter. Sec. 1754, R. S. 1909, stating the venue of suits against corporations, embraces foreign corporations, even though it be admitted that they could not have been served with process in this State at the time of its enactment in 1855.</p> <p>3. VENUE: Foreign Corporation: Governed by Section 1754; NonResident. The venue of r suit against a foreign industrial corporation licensed to do business in this State is governed by section 1754, Revised Statutes 1909, and therefore it is not necessary or proper to construe the term “non-residents” used in the fourth subdivision of section 1751. [Distinguishing Stone v. Insurance Co., 78 Mo. 655, and N. Y., L. E. & W. Railroad Co. v. Estill, 147 U. S. 591.]</p>

— Rom. J. P. Foard, Judge. (1) The patent of Kittrell, Swamp Land Commissioner, under which plaintiff claims, shows on its face that the land was sold at fifty cents per acre, and is, therefore, void. Bayless v. Gibbs, 251- Mo. 492. (2) The title to the land, therefore, remained in Butler County, and passed to defendants’ grantors by the patent from the Swamp Land Commissioner. (3) Defendants acquired title by the twenty and thirty-year Stat-utes of Limitations.

Charles D. Stewart, Judge. The. two-mill road tax as ordered by the county court of Scotland County was levied under Sec. 10481, R. S. 1909, and was unconstitutional for the reason that the fifty-cent limitation of section 11, article 10, of the Constitution, had been exhausted by the current expense tax, section 10481, Revised Statutes 1909, being within the limitation of section 11, article 10, of the Constitution.

— Eon. D. E. Blair, Judge. '(1) The foundation of the power to lay a special assessment or a special tax for local improvements of any character, whether opening, improving, or paving a street or sidewalk, or constructing a sewer or cleaning or sprinkling a street, is the benefit which the improvement or service confers on the owner of the abutting property or the owners of the property in the assessment or special taxation district which is different from the general…

Charles Circuit Court. — lion. Edgar B. Woolf oik, Judge. (1) The widow of the deceased homesteader was and is entitled to have her homestead allotted to her in kind, inasmuch as it clearly, appears that the homestead was and can be allotted in a compact body, leaving the residue of the land in a compact body of 50.23 acres. B. S. 1909, sec. 6708-6714; Schaeffer v. Beldsmeier, 9 Mo. App. 444.

Louis City Circuit Court. — Hon. George C. Hitchcock, Judge. The only'question involved in this appeal is whether or not under the terms of the original policy issued to Charles S. McKinney, and payable to plaintiffs, reserving to said McKinney the power, subject to the approval of the company, to change the beneficiary named therein, he could cancel and surrender said policy without the consent of the beneficiaries.

Louis City Circuit Court. — Ron. James E. Withrow, Judge. (1) It was conceded by the trial court that the article published of and concerning plaintiff by the defendant was a libel per se. Sec. 4818, R. S. 1909; Kenworthy v. Journal Co., 117 Mo'. App. 335.

Louis City Circuit Court. — Hon. Leo. 8. Bassieur, Judge. (1) The eirenit court of the city of St. Louis has no jurisdiction to try a contest involving the office of constable in said city, (a) Contestant undertook to prosecute his election contest under authority of Sec. 5924, E. S. 1909, but that section enumerates and specifies eo nomine the offices it was intended to cover, and the office ■of constable is excluded. Taffe v. Eyan, 25 Mo. App. 563.

Louis County Circuit Court. — Hon. John W. McElhinney, Judge.

— Hon. J. G. Sheppard, Judge. (1) Where a court has jurisdiction over the subject-matter of a suit and of the parties, its judgment is binding on the parties until set aside or annulled by appeal. Such a judgment may be irregular and voidable, but it is not void and cannot be attacked collaterally.

— lion. B. G. Tlvurman. Special Judge. (1) The statute under which the district in question was attempted to be organized required the County Superintendent of Schools on receipt of a proper petition to perform these duties: (a) To visit and investigate the needs of the community; and (b) To determine the exact boundaries of the proposed district, doing this so as to get the best possible district, having due regard to the welfare of the adjoining districts.

— Hon. J. G. Slate, Judge. (1) The purported will of William Brink was improperly admitted in evidence. It had not been admitted to probate and had not been proven, recorded, certified and attested as required by statute. R. S. 1909, sec. 564, 549; 565; Charlton v. Brown, 49 Mo. 353; Smith v. Estes, 72 Mo. 310; Parris v. Burchard, 242 Mo. 1; Barnard v. Bateman, 76 Mo. 414; Snuffer v. Howerton, 124 Mo. 637.

<p>1. APPEAL: No Motion or Bill. If the abstract of the record proper fails to show that a motion for a new trial and a bill of exceptions were filed in the trial court, only such assigned errors as may appear in the record proper can be reviewed on appeal — although the abstract contains what purports to be a bill of exceptions in which the filing of the motion and bill is recited.</p> <p>2. JUDGMENT: Responsive to Petition: Ejectment. If a judgment is in all respects complete as a judgment in ejectment, it will not be held to be a decree in equity, and therefore irresponsive to the petition in ejectment, for that, in addition to those necessary recitals, it also recites that plaintiff is entitled to possession “for the purpose of applying the rents and profits on the debt and note” and further orders plaintiff “when said debt has been fully extinguished to turn over said premises” to defendant. These unnecessary recitals are mere surplusage.</p> <p>3. DEED OF TRUST: After Condition Broken: Ejectment. The mortgagee, after condition broken, may recover possession of the mortgaged premises by an action in ejectment, and retain such possession for the purpose of applying the rents and profits upon the principal and interest of the debt; and this applies to a trustee in a deed of trust, in whom, upon condition broken, the legal title is vested.</p> <p>4. -: -: Interest Alone Due: Foreclosure. Where a note stipulates that it is to bear interest from date and if the interest be not paid annually to become as principal and bear the same rate of interest, the interest cannot be collected by suit until the maturity of the note; nor can a deed of trust securing such a note be foreclosed for condition broken where it is conditioned only upon the payment of the note according to its tenor. But a deed of trust conditioned for the payment of interest annually may be foreclosed for a breach of that condition, although the note itself has not matured.</p> <p>5. -: -: -: --: One Contract: Independent Conditions. A note and deed of trust given to secure its payment, both executed at the same time, are one contract and must be construed together, so that effect may be given to all the terms of both in-’ struments where possible to do so; and so a deed of trust may be foreclosed before the maturity of the note which it secures if it has provisions or conditions upon which a forfeiture will take place independently of the terms of the note.</p>

— Hon. David E. Blair> Judge. (1) When parol proof of the existence and contents of a lost deed is offered as the only evidence thereof, the witness must have seen and read it and be able to speak pointedly and clearly as to its tenor and contents and to state whether it conveyed a fee simple, a life estate or a term for years, and whether it in fact was executed by the supposed grantor. Dagley v. Black, 64 N. E. 277; Rankin v. Crow, 19 111. 626.

<p>1. DAMAGES: Sec. 5425: Suing for Only $2000. The language used in Sec. 5425, R. S. 1909, namely, that defendant “shall forfeit and pay as a penalty the sum of not less than two thousand dollars, and not exceeding ten thousand dollars, in the discretion of the jury,” means that the $2000 is penalty alone, and the amount which plaintiff may recover above that sum is not penalty, but compensation for loss, which is to be established by evidence; and that being true, plaintiff may sue for $2000 as a penalty, and for that alone, and may forego her right to compensation, if any 'such right she has. [Following Boyd v. Mo. Pac. Ry. Co., 249 Mo. 1. c. 126.]</p> <p>2. -: -: -: Constitutionality. Since the statute it-.. self fixes the penalty plaintiff may recover at $2000, it is not therefore to render the statute unconstitutional, to permit her to sue for $2000 as a penalty alone and to forego any demand for compensation.</p>

Louis City Circuit Court. — Hon. George H. Shields, Judge. (1) The Constitution provides that the privilege of operating a street railroad shall he acquired by securing the consent of the local authorities and this is the only manner in which such privilege can lawfully be acquired. Mo. Constitution, art. 12, sec. 20; Grand Ave. Railroad v. Lindell Railroad, 148 Mo. 637; State ex rel. v. Lindell Railroad, 151 Mo. 162.

Louis City Circuit Court. — Eon. James ' E. Withrow,- Judge. (1) The trial court erred in rendering judgment for plaintiff on the bills, and overruling appellants’ motions for new trial, because the city had no power to assess according to the Semple Place plat, and to divide the land according thereto, for the reasons: (a) The definition of “lot” in section 14 of article 6 of the charter applies to “lot” in section 22 of the same article.

<p>SPECIAL TAX BILLS: District Sewer: Suit Pending to Establish Street. If the proceeding to condemn .land for streets through the area taxed with the costs of a joint district sewer, is undetermined and open to cessation on the part of the city authorities at the time of the trial of the action on the special sewer tax bills, the projected streets are not streets in the sense of the charter excluding them as a part of the area assessable for sewer taxes, and if they become streets the money paid for them will stand in lieu of the land taken, and hence the tax bills issued against subdivisions of the area are not void because those projected streets were not excluded.</p>

— Hon. W■ 8. C. Walker, Judge. • (1) The defendant was not entitled to a separate or special notice of the filing of the petition for the increase of the assessments on his lands as made in the county court order of April 29, 1912. Defendant having been made a party in the beginning, he was in court at all times and for all purposes, so far as this district was concerned.

— Hon. A. H. Waller, Judge. , (1) The trial court erred in refusing to give defendant’s instructions in the nature of demurrers to the evidence, at the close of plaintiff’s case and again at the close of all the evidence, because: (a) there was a total- failure to prove the charges of negligence alleged in the petition; (b) there was a failure tó. prove any duty of the defendant to have the headlight on the engine burning, or to warn the plaintiff by sounding the whistle or…

— Hon. James D. Barnett, Judge. (1) The writ of error is insufficient to bring any record before this court, and especially the record in the intervening or branch, case between Brown, Trustee., as claimant, and Fidelity Trust Company, which is apparently the record-sought to be reviewed; the writ wholly fails to name the parties to the cause below,, and is fatally defective. ' Miller v. McKenzie, 10 Wall. 582; Davenport v. Fletcher, 16 How. 142-143; Smythe v. Strader,…

<p>LEASE: Parol Agreement: Part Performance: Possession. The retention of possession of land by a lessee after the expiration of his written lease, under a parol contract made by the landlord, while he was yet in possession, to lease to him fpr another year, will take the case out of the Statute of Frauds and authorize compulsory specific performance, only when such retention of possession is pursuant to and referable solely to the parol contract. Mere continuance of possession does not constitute part performance. Hence the expression by the Court of Appeals, in Winter v. Spradling, 163 Mo. App. 77, that “there would be nothing inconsistent in the defendant [tenant] holding possession under both the written and verbal leases at the same time,” is condemned.</p>

<p>1. JUDGMENT: Execution After Ten Years. Execution cannot issue in any case after the expiration of ten years from the date the unrevived judgment was rendered.</p> <p>2. -: -: Special Tax Bill: City Charter: Paramount Statute. And though the judgment was based upon a benefit assessed against a lot as its share of the cost of a public improvement and the city charter says such judgment shall be a lien until the assessment is paid, such charter provision must yield to the paramount authority of the State statute, and execution cannot issue after the period of ten years mentioned in the statute has expired.</p> <p>3. -: -: Matter of General Policy. Whether an execution can be issued upon an unrevived judgment after ten years is a matter pertaining to the general laws and policy of the State, and not one relating strictly to municipal affairs or coming under municipal control. And although the judgment grows out of an assessment of the costs of a public park against lots within the benefit district, and the city charter prescribes as the method of enforcing such assessment the judgment of a court of general jurisdiction, yet that judgment, like any other of such a court, is controlled by the statute, and an execution based on it must follow the course of other executions issuing out of such courts.</p> <p>4. -: -: Effect of Appeal. A judgment expires by limitation in ten years after it is rendered in tbe circuit court, whether appealed from or not. The statute (Sec. 1912, R. S. 1909) says that the period of ten years is to. be counted “from the date of the. original rendition” of such judgment.</p> <p>b. - :-: -: Supersedeas. •' An appeal does not stay a judgment, or stay the issuance of execution thereon. It is the supersedeas statute which, upon condition, stays a judgment pending an appeal upon the appellant’s making and filing the requisite bond; and if a judgment be not suspended or stayed by a supersedeas bond, it continues, pending an appeal, in full force and vigor, and execution may issue.</p> <p>6. -: -: -: Ten Years After Affirmation. Where the judgment was affirmed on appeal on June 30, 1903, the mandate issued out of the appellate court on July 11, 1903, and was filed in the circuit court on July 12, 1903, an execution issued on July 12, 1913, was issued ten years and twelve days after the judgment was affirmed, and even if it be admitted that the statute was tolled by the appeal, and in any view of the case, the execution should be quashed.</p>

<p>1. NEGLIGENCE: Boarding Moving Car: Contributory Negligence Per Se. There is no cause of action against the carrier in favor of one who is injured as a result of his attempt to board a moving car if the carrier is guilty of no act of negligence beyond the mere fact that the car is moving at the time. In such case the person who attempts to board a car while- it is in motion assumes the risk of injury from the ordinary movements of the car, but is not chargeable with negligence per se.</p> <p>2. -: -: After Slowing Down: Premature Start: Mental Excitement. If a person, desiring to board a street car which merely slows down without stopping at the proper place or starts prematurely after having stopped, is laboring under great mental excitement, caused by facts which make it especially desirable and necessary to board the car at that place and such excitement is great enough to deprive him of the power to safely judge the dangers of the situation, and if the agents of the carrier know or under the circumstances are bound to be aware of such conditions of excitement, the carrier’s failure to stop the car or to hold it a reasonable length of time is negligence, and the risk of injury from boarding the moving car is not assumed by such person; but .if ■ he is not laboring under such excitement, and is not directed by the carrier’s agent to enter, he cannot recover for injuries caused by ordinary movements of the car.</p> <p>3. -: -: When Plaintiff May Recover. A person seeking to recover damages for injuries received while boarding or leaving a moving street car, must show that the carrier caused him to be put in a dilemma, such as to cause excitement of mind rendering him for the moment unable to properly choose between two courses of action, or that the carrier’s agents made some order, request or direction that he board or leave the car, or that there was some sudden shock or acceleration of speed of the car while he was getting on or off; or some defect in the car which increased the danger, or some other facts showing negligence of the carrier other than the mere fact that the car was in motion when he made the attempt to board or leave it.</p> <p>4. -: -: -: No Contributory Negligence. A person not under unusual excitement who attempts without invitation to board a moving street car after it has started in ordinary movement, cannot recover for injuries so received, regardless of the question of whether he was himself guilty of negligence, even though the car after having been stopped was started without giving him'reasonable time to board it.</p> <p>5. -: —--: Act of Entering: When a Passenger: Instruction. One who has hold of the rail or has a foot on the step for the purpose of entering is in the act of entering the car. Nor is it the law that in all cases a person must have hold of the rail or have a foot on the step in order to be in the act of entering. If he intends to take passage on a street car and has hailed it for that purpose, and it has been stopped to enable him to enter, he is to be regarded as a passenger while he is in the act of carefully and prudently attempting to step upon the platform. So the carrier is not entitled to an instruction telling the jury that if when plaintiff took hold of the hand rail the car was moving, he cannot recover.</p>

<p>1. CIRCUIT COURT: Power to Order Examination of Premises for Evidence. The circuit courts of Missouri are cour.ts of original and general jurisdiction, possessing practically the same powers as nisi prius courts in England, among which.was the power to permit plaintiff and his counsel, in a civil suit against a corporation, to visit defendant’s manufacturing plant, and enter upon its premises, with experts and photographers, for the purpose of inspecting and measuring the same, and making drawings and taking photographs to be used as evidence in the trial of said action; and such power was not taken away by the constitutional provisions against unreasonable .search and seizure, nor is a legislative statute necessary to the exercise of such power by the court.</p> <p>2. -: -: Invasion of Property Eights: Similar to Examination by Physicians. The power of the court to permit plaintiff, in a personal injury action based on a charge of an unsafe place in which to work or unsafe tools, to visit the factory of the company causing the injury, with proper p.ersons and on a pro'per occasion, for the purpose of obtaining photographs or drawings to be used in the trial of the case, is based on the power of the court to know the facts which determine the plaintiff’s right to recover and defendant’s liability, and if reasonably exercised is not an invasion of property rights, but is similar to the power of the court to cpmpel the plaintiff suing for personal injuries to submit to an examina-. . tion by physicians appointed by the court, and for a stronger reason should be upheld, since personal rights are superior to property rights, and their violation a more serious matter.</p> <p>3. -: -: Based Upon Inherent Relationship of Employment. Since the law requires the employer to furnish his employees a reasonably safe place in which and reasonably safe appliances with which to work, and a violation of either duty is a basis for a legal action for damages for personal injury to the employee, the law must either impose an implied agreement upon the employer, arising out of the contractual relation, that the employee, in case of injuries due to failure to provide such' safety, shall have the right, at a proper time, in a reasonable manner and in company with prop- . er persons, to visit and inspect such place and appliances, in order that they may testify as to-their condition, or the law should expressly impose upon the employer the duty to expose to the injured employee and his experts, at a proper time and in a reasonable manner, the place where and the tools by which he was injured.</p>

<p>1. RAILROAD BATES: Power of Public Service Commission. Section 47 of tbe Public Service Commission Act, Laws 1913, p. 583, confers upon tbe Commission authority to raise railroad rates above the maximum theretofore fixed by the Legislature.</p> <p>2. -: General Powers of ^Legislature. The General Assembly may pass any law upon any subject not forbidden by the organic law. That power is conferred by section 1 of article 4 of the Constitution, which says that “the legislative power, subject to the limitations herein contained, shall be vested in a Senate and House of Representatives, to be styled ‘the General Assembly of the State of Missouri.’ ” Pursuant to this general power to enact legislation, the General Assembly had enacted laws fixing maximum passenger and freight charges prior to the incorporation of section 14 of article 12 in the Constitution of 1875 which explicitly conferred the power of “establishing reasonable maximum rates.” [Explaining statement in State v. M. K. & T. Ry. Co., 262 Mo. 1. c. 522.]</p> <p>3. -: Kailroad Kates: Power of Legislature. The General Assembly has power to fix reasonable maximum rates for the carriage of freight and passengers, in the absence of any specific authority such as is contained in section 14 of article 12 of the Constitution explicitly conferring the power.</p> <p>4. -: -: -: Delegation of Power. The power of prescribing maximum rates for common carriers, which the Legislature inherently possesses, may be delegated to a railroad commission or to a public service commission, unless inhibited by express constitutional provision. And if the fixing of rates is to proceed intelligently along lines of fairness to all concerned — to passenger, shipper, carrier, laborer and the public — with due regard to constant mutations in costs of labor and the. amount of traffic, the matter should be delegated to a body having time for investigation and aided by expert machinery and having greater flexibility than a short-term Legislature possesses.</p> <p>5. -: -: -: Constitutional. Although by doing so it repealed existing statutes fixing maximum rates, the Legislature was not inhibited by the provision of the Constitution declaring that “the General Assembly shall pass laws to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in the State, and shall from time to time pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freight on said railroads” from creating the Public Service Commission and directing it, after a hearing and proper expert investigation, to ascertain what maximum rates are reasonable and fix the same by an. order, and declaring that said rates so ascertained and fixed should “thereafter be observed” by the railroads. The Legislature did not' thereby delegate to the Commission the absolute power of fixing maximum rates, but only the power to ascertain and determine what rates are reasonable, and it is those rates that the General Assembly “established” — subject all the time to review by the courts as to their reasonableness.</p> <p>Held, by BOND, J.; dissenting, that since the General Assembly did exercise its exclusive power to establish and fix maximum rates^ it could not thereafter exercise it again except through the medium of its own power as a legislative body; and since the Constitution says that the General Assembly shall establish maximum rates, it was powerless to. delegate the power to any commission, and to do so is to contravene this constitutional provision.</p>

<p>Certiorari.</p> <p>(i) The judgments of the St. Lonis Court of Appeals are beyond and in excess of the jurisdiction of that court and should be quashed, because therein that court did not follow or apply the last previous ruling and controlling decision of the Supreme Court rendered on the identical facts, in relation to the same relator and its business. Am. Mfg. Co. v. City, 238 Mo. 267. (2) The judgments under' review on this writ should be quashed because they are in conflict with the last controlling decisions and rulings of the Supreme Court as to what payments are voluntary when made under protest, “in order to avoid prosecution and continue its business” to officers empowered to enforce penal tax laws. E. S. 1909, secs. 11461, 11617-18, 11646-8; Am. Mfg. Co. v. City, 238 Mo. 267; Westlake v. City, 77 Mo. 47; Bank v. Bank, 244 Mo. 554; Construction Co. v. Hayes, 191 Mo. 301; Loring v. City, 80 Mo. 468; Am. Brew. Co. v. St. Louis, 187 Mo. 367; Am. Brew. Co. v. City, 209 Mo. 600. (3) The said judgments of the St. Louis Court of Appeals should be quashed because in conflict with decisions of the Courts of Appeals on the decisive point on which the learned opinion herein by the St. Louis court has been placed. Voelpel v. Ins. Co., 183 S. W. 681; Niedermeyer v. University, 61 Mo. App. 654; Brown v. Worthington, 162 Mo. App. 508; Link v. Eeal Est. Co., 182 Mo. App. 531. (4) The judgments herein reviewed as rendered by the Court of Appeals not only misapplied the above-stated law as laid down by this court, but did not apply another settled principle heretofore declared by the Supreme Court and which, properly applied, would have led to a reversal of the judgment in question, notwithstanding Claflin v. McDonough, 33 Mo. 412, on which the Court of Appeals undertook to found its decision. That principle is that moneys illegally obtained by a public officer as a condition to granting a license without which the business of the victim cannot be continued, as in circumstances here disclosed, may, in all cases, be recovered back — being extortion and beyond the power of such officer.' Loring v. City, 80 Mo. 468; Maguire v. State Savings Assn., 62 Mo. 344; Brewing Co. v. St. Louis, 187 Mo. 367; Wood v. Telephone Co., 223 Mo. 537.</p> <p>(1) The judgment in Claflin v. McDonough, 33 Mo. 412, was clearly controlling upon the respondents and it is the last previous ruling of this court upon the law and facts involved in the case decided by them. (2) There is nothing in Am. Mfg. Co. v. St. Louis, 238 Mo. 267, to indicate that the Supreme Court has taken a broader view than that announced in Claflin v. McDonough, in cases of this character where the suit proceeds against a public officer. (3) "While it may be true that unlawful exactions paid under the stress of urgent business necessity, may constitute duress, a mere threat of legal process cannot be so considered, “for the party may plead and make proof and show that he is-not liable.” Claflin v. McDonough, 33 Mo. 412; Wood v. Telephone Co., 223 Mo. 537. (4) If appellant deemed the exactions to be unlawful, ample remedy was afforded to it by a resort to mandamus. Butler v. Moberly, 132 Mo. -App. 172; State v. Alt, 224 Mo. 493.</p>

<p>1. WILL CONTEST: Death of Contestants: Revivor: Abatement. When a will contest has once been instituted by persons who have a direct pecuniary interest in the final determination of the question of whether or not there is a will, the burden of proving the will then rests upon the proponents, and the contest must go forward to a final adjudication; and if the contestants die, the action does not abate, and there is no absolute necessity of a revivor in the name of those who have a financial interest in the result, although upon proper application they may be substituted as contestants, but the administrators of the contestants are not proper parties.</p> <p>2. -: -: —=-: Administrator. Upon the death of the contestants of a will, their administrators should not be substituted as parties. An executor or administrator is not, under the statutes, an interested party to a will contest, either active or nominal. The statute limits the right of- action to “persons interested in the probate of wills,” and an executor or administrator is not such a person.</p>

— Hon. G. H. Blanker, Judge. (1) Where there is no evidence tending to show that the testatrix had any knowledge of the contents of the will as drawn, and where it does not dispose of her •property as she had desired and had directed, it will be held that it was not the will of the testatrix. Bradford v. Blossom, 207 Mo. 207.

— Hon. W. A. Thomas, Judge. (1) The alleged agreement or arrangement by which the railway companies were to pay to the lumber company one-half of their proportion of the interstate freight charges on the shipments in question, constitutes one of the devices prohibited by the Interstate Commerce Act, and by reason thereof, the claim herein sued upon is void, illegal and unenforcihle, and plaintiff cannot, therefore, recover in this case.

Certiorari. (1) It is now well settled that the Supreme Court has the power as well as the duty to quash the decision of one of the appellate courts of the State, where its rulings are not in accord with, hut against the rulings of the Supreme Court. State ex rel. v. Ellison, 266 Mo. 604; State ex rel. v. Reynolds, 265 Mo. 88.

Mandamus. Writ issued. (1) The amendment of 1906 is simply the removal of a limitation heretofore existing; it is not a grant- of power,… Held: expressly limit the procedure provided therein to cases where the indebtedness to be contracted falls within the limit of the maximum indebtedness which the county, under the Constitution, may incur, while the election in this case was ordered and held for an amount in excess of said five per cent limit of maximum indebtedness, and…

Louis City Circuit Court. — Hon. Rhodes . E. Gave, Judge. (1) Where the injury to a third party is caused by the servant’s negligence in the performance of his duties and the liability of the master is based solely on the doctrine of respondeat superior, each is severally liable to ,the injured party, although for different reasons, but they are not joint tortfeasors and cannot be sued jointly.

— Hon. William O. Thomas, Judge. (1) The division of the School District of Dallas as shown hy the record herein, was authorized by law. RS. 1909, secs. .10837, 10839, 10840, and 10881; School District No. 1 v. School District No. 4, 94 Mo. 620.

<p>1. CONSTITUTIONAL QUESTION: Untimely Raised. A constitutional question is neither timely nor otherwise sufficiently raised by an assignment in the motion in arrest that “the facts stated in said information do not constitute a charge or offense under the Constitution and laws of this State” and by an allegation in tne assignment of errors that the statute in question is in violation of section 8 of article 1 of the Constitution of the United States.</p> <p>2. -: Assignment Must Be Specific. To raise a constitutional question the particular provision of the Constitution alleged to be violated must be pointed out.</p> <p>3. -: Previously Decided. A plea of unconstitutionality will not confer jurisdiction where the Supreme Court has theretofore held the statute in question valid.</p> <p>4. -: Appeal: Transfer to Court of Appeals. If the constitutional question was neither timely nor otherwise sufficiently raised and the statute under which defendant was convicted of a misdemeanor has previously been adjudged to be constitutional, the case will be transferred to the proper Court of Appeals for final determination.</p>

<p>HABEAS CORPUS. The opinion of the St. Louis Court of Appeals, quashing a writ of habeas corpus issued on behalf of petitioner, is adopted as the opinion of the Supreme Court, and the subsequent writ of habeas corpus issued by the Supreme Court in the same case is likewise quashed.</p>

<p>REHEARING GRANTED: Immediate Decision Without Rehearing. After a Court of. Appeals has granted a motion for a rehearing, it cannot at the same time and Immediately without a rehearing and without a re-submission, render judgment. When a rehearing is allowed the case stands for re-argument and re-submission, and a judgment rendered without re-submission is coram non judieo and void.</p> <p>Held, by BOND, J., dissenting, that the Court of Appeals had jurisdiction of the cause, and its judgment was at its worst a mere erroneous exercise of that jurisdiction, and in no sense a violation of the constitutional power vested in it to decide cases; and one of the judges of that court, deeming the judgment to be in conflict with certain designated decisions of the Supreme Court and 'of another court of appeals and having for that reason caused the case to be certified to the Supreme Court, that certification gave this court jurisdiction of the whole case, and it is before ,the Supreme Court for determination on the merits, just as if it had been brought to it by direct appeal from the circuit court, in total disregard of the error by which the judgment was reached in the Court of Appeals.</p>