Volume 290 — Missouri Reports

— Eon, Willard P. Hall, Judge. (1) The court did not commit error in refusing to give plaintiff’s instruction lettered and numbered P-2. Guffey v. Hannibal Ry. Co., 53 Mo. App. 452, 469; Peck v. Transit Co., 178 Mo. 617; Hornstein v. United Rys. Co., 97 Mo. App. 271. (2) The demurrer to the evidence on behalf of both defendants should have been sustained. Peck v. Transit Co., 178 Mo. 617.

— Hon. Harris Robinson, Judge. (1) The court committed error in refusing-to give the instruction in the nature of a demurrer, asked by defendants, at the close of the evidence, (a) Plaintiff, without reasonable explanation or excuse, changed the testimony which he gave at a former trial, which testimony did not make a case. Rigley v. Pryor, 204 S. W. 737; Faith v. Home Ins.

<p>1. DEED BY ENTIRETIES: Divorce: Purchase Price Advanced by Husband. Where the husband’s money paid for the land and the deed named him and his wife as grantees, thereby creating an estate by the entireties, and subsequently they are divorced, thereby changing the estate into one in common, the husband, in a subsequent partition, is not entitled to the amount advanced by him, and the Court of Appeals in so deciding and in holding that only the balance, after deducting the money advanced, may be divided between them, contravened the decision in Bender v. Bender, 281 Mo. 473, since it was there decided that a resulting trust must arise, if at all, at the instant the deed is taken, and cannot be created by subsequent occurrences.</p> <p>2. -:-: Effect on Property Rights. Divorce does not restore the parties to their former condition in all respects; it vests the wife with her moiety, and it changes.an estate by the entireties into a tenancy in common, but it does not raise a resulting trust in favor of the husband who paid the money for a deed to her and him ::s the grantees, and no such resulting trust arises in his favor unless the trust arose at the time the deed was taken.</p>

<p> Quo Warranto. </p> <p>(1) Quo ivarranta is a direct proceeding by the state and is available for nullifying the exercise of legislative power by a municipality, or by the legislative agent, in this case the circuit court. Sec. 2066, R. S. 1919; Sec. 2631, R. S. 1909; State ex inf. Killam v. Colbert, 273 Mo. 198, 209; Black v. Early, 208 Mo. 308; State ex rel. v. Wilson, 216 Mo. 275; State ex rel. v. Gravel Road Co., 187 Mo. 446; State ex rel. Brown v. West-port, 108 Mo. 582; State ex rel. v. Westport, 116 Mo. 582; Lehigh P. & T. Co. v. Town of Lehigh, 156 Iowa, 387, 398. (2) To nullify the attempted extension of its corporate limits, the suit should be brought directly against the corporation. 23 Am. & Eng. Ency. Law, p. 662, b; City of East Dallas v. State ex rel. Putz, 73 Tex. 370; People v. Peoria, 166 Ill. 517; State ex rel. White v. Small, 131 Mo.- App. 470; State ex inf. v. Fleming, 147 Mo. 9-12; State ex inf. v. Fleming, 158 Mo. 567, 568; State ex inf. Major v. Kansas City, 233 Mo. 171; State ex inf. v. Woods, 233 Mo. 382. (3) It has been ruled by the court in banc that the extension of the boundary'lines of the Albany Drainage District by the judgment of the Circuit Court of Gentry County was the exercise of legislative power by an administrative agent. State ex rel. Manion v. Dawson, 284 Mo. 490, 225 S. W. 97. (4) The judgment of the circuit court extending the boundary lines of the drainage district so as to annex relators’ land and other lands, being an exercise of legislative power by an administrative agent, was not res adj%idicata. State ex inf. v. Fleming, 147 Mo. 2, 11; State ex rel. White vi Small, 131 Mo. App. 470; State ex inf. v. Calbert, 273 Mo. 198; State ex rel. v. Wilson, 216 Mo. 215, 275; Kayser v. Trustees of Bremen, 16 Mo. 88; Woods v. Henry, 55 Mo. 560; State ex rel. v. McReynolds, 61 Mo. ,203; State ex inf. -v Woods, 233 Mo. 357. (5) All the sections of the Act of 1913, Laws 1913, pp. 232 to 267, should be considered together, in order to arrive at the meaning’ of Section 40. In order to prevent one section of a statute from conflicting with the entire scope of legislative action, it is sometimes nec'essary to depart from a literal construction, and adopt the one that removes the conflict and produces harmony. State to use v. Hernán, 70 Mo. 441, 451; Home Ins. Co. v. Wickham, 281 Mo. 300, 315; State ex inf. v. West Side Ry. Co., 146 Mo. 155, 167. (a) It is either (a) necessary to read the fundamental conditions for organizing a drainage district prescribed by Section 2 into Section 40 and apply them to the extension of the boundaries to include other large tracts, or (b) to rule that Section 40 is a mere correction statute and does not authorize the court to extend the boundaries to include other large tracts, or else Section 40 is no law at all and must be declared void for uncertainty. Bittle v. Stewart, 34 Ark. 224; Cook v. State, 26 Ind. App. 278; In re Hendricks, 60 Kan. 796, 806; Chaffee’s Appeal, 56 Mich, 244; Matthews v. Murphy, 23 Ky. L. Rep. 750; State v. Gaster, 45 La. Ann. 636; People v. Taylor, 96 Mich. 576; State ex rel. v. Ashbrook, 154 Mo. 396; State v. West Side Ry. Co., 146 Mo. 155; State v. Excelsior Sp. Light’Co., 212 Mo. 101; Merchants Exchange v. Knott, 212 Mo. 616, 636 to 643; State ex rel. v. Fort, 210 Mo. 558; State v. Partlow, 91 N. C. 550, 552. (b) A municipal or quasi-municipal corporation possesses and can exercise only such powers as are granted in express words, or those necessarily incident to or implied in the .powers expressly granted. State ex rel. v. Wilder, 200 Mo. 105; Knapp v. Kansas City, 48 Mo. App. 492; Nishn^botna Drain. Dist. v. Campbell, 154 Mo. 157. (c) Section 40 of the Act of 1913 fixed no limits to the amount of lands that may be added by the extension of the boundaries of a drainage district. It does not require the lands to be swamp or wet or overflowed. If it authorized the judgment rendered by the circuit court in this case, it would have authorized one that extended the boundaries north to Iowa and south to the Missouri River. It would also have authorized a judgment extending the boundaries to include all other farm lands in the State. The only conditions it imposes are (a) that the petition he filed hy the board of supervisors or owners of lands adjacent to the district; (b) that notice be given; (c) that objectors may file objections; (d) that the court hear the petition and objections in a summary manner; (e) enter a decree according to its findings, and (f) appoint commissioners to assess benefits and damages. It does not require the court to be just or reasonable or to exercise a reasonable discretion. It does not indicate what the objections shall be. The circuit court has no judicial discretion in construing it, for this court has ruled, 225 S. W. 97, that the extension of the boundary lines of a drainage district is the exercise of legislative or administrative power, delegated to the court as an administrative agent by the state. If said Section 40 must stand alone, it is either (a) a correction statute, limiting the hearing and objections to a correction of errors in the plan for reclamation and the decree incorporating the district, or (b) is so incomplete and uncertain as to be void. (6) Sections 2 and 40 of the Act of 1913 must be read together, and when read and considered together they mean that all the fundamental condidons for organizing a drainage district prescribed by Section 2 must be present before the circuit court can extend- the boundaries to include other large tracts. G-rimes v. Reynolds, 184 Mo. 688; Grimes v. Reynolds, 94 Mo. App. 584; Sales v. Barber Asphalt Pav. Co., 166 Mo. 667; Lewis-Sutherland on Stat. Construction, secs. 368, 443; State ex rel. v. Dealing, 173 Mo. 492; Roth v. Gabbert, 123 Mo. 32; State ex rel. v. Fort, 180 Mo. 112; King’s Lake Drain. & Levee Dist., 176 Mo. 557; Ewing v. Vernon County, 216 Mo. 692; State ex rel. v. Wiggins Perry Co., 208 Mo. 622, 639; State ex rel. v. Chariton Drain. Dist., 252 Mo.-360; State ex rel-. v. West, 272 Mo. 315. (7) If said Section 40 authorizes the extension of the boundary lines of an existing drainage district so as to include other large tracts, and the conditions prescribed by Section 2 must be read into Section 40, then the petition filed by the board of supervisors to extend the boundaries will not authorize the circuit court to entertain it unless it shows on its face (1st) that the lands to-be added, together with those already contained in the district, constitute one contiguous body, or drainage unit, of swamp, wet or overflowed lands, or lands subject to overflow, and (2nd) that the purpose of extending the boundaries is to reclaim'the lands to be added from the effects of water either (a) for agricultural or sanitary purposes or (b) to promote the public health, convenience or welfare, or (c) to conserve some other public utility or benefit, and • (3rd) that the owners of a majority of the acres to be added have consented to the extension, either by joining in the petition or by filing their separate written consent. State ex inf. v. Woods, 233 Mo. 357; 32 Cyc.. 1424. (a) All jurisdictional facts must affirmatively appear, upon the face of the proceedings and no presumptions are indulged as to matters not so appearing. State ex rel. v. Wilson, 216 Mo. 277; State ex inf. v. Woods, 233 Mo. 377; State ex rel. v. Page, 107 Mo. App. 213; State ex rel. v. Seibert, 97 Mo. App. 213; Ry. Co. v. Campbell, 62 Mo. 588; Ellis v. Pac. Ry. Co., 51 Mo. 203; Ry. Co. v. Young, 96 Mo. 39; Leslie v. St. Louis, 47 Mo. 474; Nishnabotna Drain. Dist. v. Campbell, 154 Mo. 157. (b) The supervisors’ petition to extend did not show upon its face the affirmative facts necessary to authorize the circuit court to entertain it. It did not show either (a) that the lands to be added were a part of the contiguous body, or drainage unit, of which the lands in the organized district was the other part, or (b) that the purpose of the extension was to promote some public purpose or (c) that the owners of a majority of the acres to be added, or the owners of any of them, had consented to the extensions, (c) The evidence clearly establishes that the owners of a majority of the acres to be added had not consented to the extensions, (d) The evidence clearly shows that the lands in the Northern Extension and the lands in the district organized constituted separate drainage units, and did not constitute a “contiguous body” within the meaning of those words as used in. Section 2. (e) By no fair construction of words can the words “contiguous body” used in Section 2 he expanded to include the lands lying along Middle Fork seven or eight miles, and lying along West Fork four or five miles, above the point where their waters unite with those of East Fork to form the main Grand Eiver. Ingersoll on Public Corporations, pp. 151 -et seq.; Traux v. Pool, 46 Iowa, 256; Elsberry Drain. Dist. v. Harris,- 267 Mo. 153. The words “adjacent thereto” used in Section 9 of said Act of 1913, and in the notice prescribed by Section 40, mean adjoining, next to, close to, in the neighborhood of. 1 C. J. 1194. (8) If Section 40 is interpreted to mean that the circuit court can extend the boundaries of a drainage district to include other large tracts and subject them to the payment of taxes to pay for drainage works in the district as organized and through the extended areas, upon the petition of the supervisors alone, and without the consent of the' owners of any of the lands to be added and against their written protest, the petition filed by the supervisors on July 26th was premature, and the circuit court had no right to entertain it, because there had been no effort made to drain or reclaim the lands contained in the district organized and no effort made to ascertain whether the costs of drain: age works for draining, leveeing and reclaiming the lands contained in the district organized would be less than the amount of benefits assessed against the lands in the district. Section 5, 9, 10, 12 to 16, and 37, Act of 1913. These sections clearly mean that a drainage district must first demonstrate, by pursuing the methods by them prescribed, that it has a right to continued existence before it can have it boundaries extended, even if Section 40 authorizes an extension to include other large tracts. Elsberry Drainage Dist. v. Harris, 267 Mo. 315. (a) Until it is made apparent that the costs of draining, leveeing and reclaiming the lands contained in the district organized do not exceed the benefits assessed against the lands therein, the district is a mere tentative or conditional incorporation. Secs. 16 and 37, Laws 1913, pp. 241, 253; In re Drainage District, 270 Mo. 165; Carder v. Fabius Drain. District, 262 Mo. 554, 559. (b) A mere tentative or conditional corporation has no right to extend its boundaries to include other large tracts of land. St. Joseph & Iowa Ry. Co., v. Shambaugh, 106 Mo. 566; City of Hopkins v. Council Bluffs Ry. Co., 79 Mo. 100; Orrick School District v. Dorton, 125 Mo. 442, 444; State ex rel. v. Arnold, 36 Ind. 41; People ex rel. v. Swearingen, 273 Ill. 630; People v. Darst, 265 Ill. 359; Wayne Drainage Dist. v. Boggs, 262 Ill. 338; Tennessee Drainage Dist. v. Moge, 258 Ill. 296. (9) In no event can the boundary lines of a drinage district be extended to include other large tracts, against the consent of the owners of the land to be added, unless (a) the extension is necessary for the proper reclamation and efficient drainage of the lands contained in the district organized and (b) the lands within the extended territory will be benefited by the drainage works contemplated by the execution of the adopted plan for reclamation. “To authorize a drainage district organized under these acts to extend its limits over other lands without the consent of the owners, the lands of the district and those to be annexed must bear such a relation to each other that the proposed improvement will be of mutual benefit.” Els-berry Drain. Dist. v. Harris, 267 Mo. 139, 159; Myles Salt Co. v. Iberia Drain. Dist., 239 U. S. 485. The evi'dence in this case shows (a) that, if the extensions had not been made in this case, only about one hundred acres in the district organized would not have the best protection, and (b) that neither the lands in the Northern Extension nor the lands in the Southern Extension would be benefited by the execution of the proposed plan for reclamation. (10) Section 40 of the Act of 1913 is a mere- correction statute, designed and intended to afford a means to so extend the boundaries of an organized district as to include lands which were erroneously omitted from the decree incorporating the district by correcting errors therein, and does not authorize the circuit court to extend the boundaries of an incorporated district to include other large tracts. That it is a mere correction statute is shown (a) by a careful study of the section itself as a whole, (b) by comparing it with Section 45, (c) by comparing its words with Section 2, (d) by the words of Section 15 which prohibit a change in the plan for reclamation by commissioners, or by the supervisors and engineer, or in any other manner except by the circuit court, after notice, (e) by a consideration of the fact that the drainage works and construction contracts are all under the control of the supervisors elected by the owners of the lands in the district organized, and that the owners of the lands annexed have no voice in any of these things or in the election of the supervisors until after the contract for the construction of the drainage works are let, and until after the bonds to pay for the works have been issued and taxes to pay the bonds have been levied (Secs. 5, 6, 17 and 18), and (f) by considering Sections 9, 10, 12 to 16, which require the board of supervisors of a drainage district when incorporated to proceed to construct drains and levees for draining, leveeing and reclaimiiig the lands in the district organized. (11) If Sec. 40 'of the Act of 1913 is not a mere correction statute, and authorizes the circuit court, upon the petition of the supervisors alone, to extend the boundaries of an organized drainage district so as to include other large tracts of lands, with-' out the consent of the owners of any of them, then said Section 40 denies to the owners of the lands so added the immunities and privileges and the equal protection of the laws guaranteed to them by the Fourteenth Amendment of the Constitution of the United States, in that it divides a natural class, the owners of land in the same “contiguous body,” into two subdivisions and administers the law in one way for one subdivision and in another way to the other subdivision, in that Section 2 enables the owners of a majority of the acres in the body proposed to be organized into a drainage district to prevent its incorporation by the mere negative act of withholding their signatures from the articles of association, and Section 40 denies to the owners of a majority of the acres in the lands to be annexed the right to defeat the extension of its boundaries by refusing to consent thereto, and permits the extension against the written protest of the owners of all thé lands within the proposed extended territory. State v. Thomas, 138 Mo. 95; State v. Walsh, 136 Mo. 400, 405, 407; Cooley on Constitutional Law (6 Ed.) sees. 481-483; State v. Julow, 129 Mo. 163, 176 ; Yan Riper v. Parsons, 40 N. J. L. 1; State ex rel. v. Railroad, 195 Mo. 245; Gulf Ry. Co. v. Ellis, 165 U. S. 150; State v. Loomis, 115 <Mo. 307; Barbier v. Connolly, 113 U. S. 31; State v. Haun, 61 Kan. 154; Atchison, T. & S. Ee Ry. Co. v. Matthews, 174 U. S. 107; Southern Ry: Co. v. Greene, 216 U. S. 400, 412; Cotting v. K. C. Stock Yards Co., 183 U. S. 79; Connolly v. Union Sewer Pipe Co., 184 U. S. 556-560; Atchison, T. & S. Pe Ry. v. Yosburg, 238 U. S. 56. (a) Thfe decree of the circuit court extending the boundary lines of a drainage district of 5704.06 acres to include and add thereto 11,039.22 other acres, upon the petition of the supervisors alone, without the consent of the owners of any of the lands added, gave to said Section 40 an interpretation which brought it into conflict with said Fourteenth Amendment, and is void. Cases cited above. Myles Salt Co. v. Iberia Drain. District, 239 ,U- S. 484; Minnesota v. Barber, 136 U. S. 313, 319. (b) Before the petition of the supervisors can be heard, they must assert, and the facts must make it plain, that the lands to be added, together with those contained in the district organized, constitute a “contiguous body” within the meaning of Section 2, for otherwise Section 40 fixes no limits or restrictions whatever upon the quantity and character of lands that may be annexed to a drainage district by extending its boundaries; and if the lands to be added and those in the district constitute such a ‘‘continguous body,” then said Sections,2 and 40 divide a natural class into two subdivisions, and administer the law in one way for one subdivision and in another way for the other subdivision, requiring the consent of tks owners of a majority of the acres to the incorporation of a part of the contiguous body, and authorizing them and their supervisors to impose their will on the owners of. the lands in the other part of the contiguous body and to exercise corporate franchises over the lands, without their consent. (12) The judgment of the circuit court by which the boundary lines of Albany Drainage District, containing 5704.06 acres, was extended, upon the petition of the supervisors alone, to annex 11,039.22 other acres thereto, the lands so added lying north of the district four miles along East Fork and northwest of the district seven or eight miles along Middle Fork and west of the district four miles along West Fork and south of the district nearly two miles along the main Grand Ri/er, and subjecting said' lands to taxation to pay for drainage works already planned by supervisors in whose election the owners of the lands annexed have no voice, and done without the consent of any of them, and against the written protest of relators, was an arbitrary and unreasonable exercise of legislative power, was an abuse of the law, even if it permits the boundaries of a drainage district to be extended to include other large tracts, and was oppressive; and if said Section 40 permits such an extension it is so palpably unjust and oppressive as to be void. Heineman v. Sweat, 130 Ark. 70; Coffman v. St. Francis Drain. Dist., 83 Ark. 54; French v. Barber Asph. Pav. Co., 181 IT. S. 324; Kelly v. Meeks, 87 Mo. 396; Corrigan v. Gates, 68 Mo. 544; Copeland v. St. Joseph, 126 Mo. 431; State ex inf. v. Kansas City, 233 Mo. 162; State ex rel. v. Mining Co., 262 Mo. 504; City of Plattsburg v. Riley, 42 Mo. App. 23; City of Cape Girar-deau v. Riley, 72 Mo. 223; City of Tarkio v. Cook, 120 Mo. 9; Elsberry Drain. Dist. v. Harris, 267 Mo. 148; State ex rel. v. Birch, 186 Mo. 219; Commerce Trust Co. v. Blakley, 274 Mo. 52; State ex rel. v. Reynolds, 61 Mo. 203; City of Orlando v. Orlando W. & L. Co., 50 Fla. 207; 1 McQuillin on Municipal Corporations, secs. 267, 269; McCloskey v. State ex rel., 23 S. W. (Tex.), 518; St. Louis y. Heitzeberg Pack. Co., 141 Mo. 376, 384; St. ■ Louis v. Dorr, 145 Mo. 466; Hays v. Poplar Bluff, 263 Mo. 516; St. Louis v. Theatre Co., 202 Mo. 699. (13) If Section 40 is not a mere correction statute, but authorizes the circuit court, upon the petition of the supervisors alone, to extend the boundaries of an organized drainage district to include other large tracts, without the consent of any of them, and without extending to any of them any voice in the choosing' of the supervisors who employ the engineer, determine the location, dimensions and character of the drainage works, contract for their construction and issue the bonds and determine the amounts of the uniform and installment taxes, all before the owners of the annexed lands will have any right to vote for supervisors, then said section deprives the non-consenting owners of the lands in the extended territory of their liberty and property without due process of law, guaranteed to them by Section 30 of Article II of the Constitution of Missouri, and denies to them their natural right to liberty and the enjoyment of the gains of their own industry, guaranteed to them by Section 4 of Article 11 of said Constitution as the principal office of government, and denies to them the due process of law guaranteed to them by Section 1 of the Fourteenth Amendment of the Constitution of the United'States. State ex rel. v. Ashbrook, 154 Mo. 393-396; Barber Asphalt Pav. Co. v. Ridge, 169 Mo. 376, 387; Home Tel. Co. v. Los Angeles, 227 U. S. 278; Wilmington' City Ry. Co. v. Taylor, 198 Fed. 159; Nor-wood v. Baker, 172 U. S. 269; French v. Barber Asph. Pav. Co., 181 U. S. 324; Tonawanda v. Lyon, 181 U. S. 389; Webster v. Fargo, 181 U. S. 394; Cass Farm Co. v. Detroit, 181 U. S. 396; Detroit v. Parker, 181 U. S. 399 and 461; Union Refrig. Transit Co. v. Kentucky, 199 U. S. 194; Myles Salt Co. v. Iberia Drain. Dist., 239 U. S. 478; St. Louis v. Dreisoerner, 243 Mo. 224; Murford v. Unger, 8 Iowa, 82; Longworthy v. Dubuque, 13 Iowa, 86. (14) Relators have no remedy except by quo warranto. (a) They were not entitled to an appeal from the judgment of the circuit court. Drainage Dist. v. Meyer, 277 Mo. 439. (b) A writ of error was not available. In re Birmingham Drainage Dist., 274 Mo. 140. (c) The judgment of the circuit court, being the exercise of delegated legislative power by an administrative agent, could not be quashed on certiorari. State ex rel. Manion v. Dawson, 284 Mo. 490, 225 S. W. 97.</p> <p>(1) Quo warranto is in no sense a writ of correction or review, and mere errors of judgment will not be reviewed in this proceeding. This court will only inquire as to whether the judgment of the circuit court extending boundary lines is valid, or whether the same is void for want of jurisdiction, fraud or possibly for unreasonableness, a question much in doubt. State ex inf. v. Fleming, 158 Mo. 558; State ex rel. v. Job, 205 Mo. 1. (2) If this court should hold that it will review the reasonableness of the action of the circuit court in this proceeding, then its unreasonableness must so-flagrantly appear as to. suggest an abuse rather than a lawful use of its powers. 28 Cyc. 281; Hernán v. Shulte, 166 Mo. 409; Land & Imp. Co. v. St. Louis, 257 Mo. 291; Mc-Ghee v. Walsh, 249 Mo. 266. (3) It is insisted in divers places in the relator’s brief and argument that the action of the circuit court in extending the boundary lines in this proceeding’ was wholly arbitrary, and unreasonable, and upon-this proposition we offer’the following observations: (a) There is nothing on the face of the record in this case; or in the evidence (if the court should deem it proper to examine the same) to show or even suggest that the action of the circuit court in extending the boundary lines to include relator’s lands was unreasonable. Upon the contrary, the record shows that it was a reasonable and valid exercise of the combined judicial and legislative powers vested in the circuit court by the drainage law. The petition alleges, and the decree finds, that all of these lands were swamp and overflowed in whole or-in part; and that they would be reclaimed by the plan of drainage that had been adopted by the board of supervisors, and that no other plan would effectually reclaim the lands of the relators, and that no other or less extensive plan would reclaim the lands already in the district. These facts appearing and being found by the court, make it clear that the circuit court, in extending the boundary lines of the defendant district, acted reasonably and within the law, as laid down "by this court. Drain. Dist. v. Turney,, 235 Mo. 93, 97; Elsberry Drain. Dist. v. Harris, 267 Mo. 152; Hislop v. Joplin, 250 Mo. 588, 599; The question of unreasonableness of the court’s action must depend upon the facts in this proceeding. This court will confine itself to the findings and recitals in the record. State ex rel. v. Fleming, 158 Mo. 562; State ex rel. v. Job, 205 Mo. 32. (4) It is insisted in many places in relator’s brief and argument that Section 2 and Section 40 of the drainage act must be read together and all of the provisions of Section 2, a section providing for the organizing of drainage districts by private individuals, must be read into Section 40, the section providing for the extension of boundary lines of the drainage district, after it has been organized and incorporated. This proceeding was had in strict conformity to Section 40 of the Circuit Court Drainage Act of 1913. Section 2 of said act relates to an entirely different matter, to-wit, the organization of drainage districts by petition of indivduals. There is nothing contradictory in the provisions of these sections when the purpose of each is considered. Section 2 relates to the original' formation of the district, and Section 40 relates to an extension of the boundary lines of drainage districts, and is complete within itself. Not only-is this so, but it provides a usual, orderly and lawful method to effect that purpose. It is too well established to admit of denial, that in extending boundary lines a municipal corporation may take the initiative, and bring in other lands without the consent of the owners. And this court has applied this rule and doctrine to drainage districts. Drain. Dist. v. Turney, 235 Mo. 80, 90, 98; Houck y. Little Biver Drainage Dist., 239 U. S. 261, 60 L. Ed. 273. The record in this case complies with. and answers every jurisdictional requirement, and finds the presence of each fact necessary to a valid judgment for the extension of the boundaries of a drainage district under Section 40 of the Drainage Act of 1913, and under prior laws. Elsberry Drain. Dist. v. Harris, 267 Mo. 152; Drain. Dist. v. Turney, 235 Mo. 95, 98. To hold that Section 2 of the Drainage Act and its provisions should be treated as if incorporated into Section 40 would lead to startling and unreasonable results. In the first place, the petition under Section 2 can only be filed by the owners of the majority of the acres sought to be organized into a district. This provision, if applied to Section 40, would nullify and destroy the power of the b<jard of supervisors to file the petition under Section 40. The petition provided for in Section 2, while in one sense a petition, is much more than a petition, and is in reality articles of association entered into by the petitioners, by which they bind themselves to do and perform the things therein, by the terms of Section 2 required to be stated, while the petition provided for by Section 40 is a mere petition to the circuit court askr-ing the action of the court as provided for in Section 40. In the petition and articles of association provided for by Section 2, it is required that the name of the district should be stated, the number of years it is to continue, that the owners of the real estate and other property within said district, whose names are subscribed to said articles, are willing to and do obligate themselves to pay the tax or taxes that may be assessed against their respective lands or other property, to pay the expense of organizing and making and maintaining the improvement that may be necessary to reclaim, their lands. It is obvious how foolish, unreasonable and senseless these statements would be in a petition to extend the boundary lines of a drainage district nnder said Section 40. (5) By many different expressions found in various places in the relators’ brief and argument it is insisted that under Section 40 properly construed boundary lines of a drainage district may not be extended against the consent of the owners of the lands to be included within the district. Such a construction of Section 40 would deprive the board of supervisors of the district, acting by themselves, of the power to file the petition asking the extension of boundaries, which power is in Section 40 clearly and distinctly given. Furthermore, the proceeding under Section 40 is, by the terms of said section, an adversary proceeding, requiring a notice to be given to all persons interested in property to be affected thereby, providing for objections to be filed to said petition, for a trial, all of which would be unnecessary if the consent of the owners of the land to be included in the district must be obtained before the boundary lines of a district could be extended. Laws 1913, p. 254, sec. 40. '(6) That Section 40 of the 1913 Drainage Act must be construed to be a mere correction statute and that it does not give to the circuit court power to add to a drainage district large numbers of acres not included in the district at the time of its organization, would be a gross misconstruction of said Section 40. Section 40 expressly provides that under the petition of the- board of supervisors the boundary lines of the district may be extended, “so as to include lands not described by or included in the articles of association and decree of the court incorporating the district.” No limits as to the quantity of lands that may be added to a drainage district are contained therein. Under said section the circuit court, acting upon a petition filed under the provisions of said section, has both judicial and legislative discretion to investigate and consider all of the facts and circumstances surrounding each particular case wherein its jurisdiction is invoked, and to render such judgment and decree as the facts and circumstances of each particular case require, that complete justice may be done and the public interest subserved. Lands adjacent to a drainage district which will be benefited by tbe execution of tbe plan of reclamation adopted by tbe drainage district may be included witbin tbe boundary lines of tbe district against tbe will and tbe consent of tbe owners thereof, in order that justice may be done, and said lands made to bear tbeir fair proportion of the burden of tbe improvement, and that without any regard to whether errors have been made needing corree-, tion, or not. Laws 1913, p. 254, sec. 40 ; Drainage District v. Turney, 235 Mo. 80; Elsberry Drain. Dist.- v, Harris, 267 Mo. 139. (7) Tbe mere fact that a person or bis property has been included in a drainage district in no manner effects bis rights, provided bis property has not been benefited or damaged, and this is one of tbe controlling reasons why neither an appeal or writ of error will lie from a judgment incorporating a district, or from a judgment extending tbe boundary lines of such district. In re Birmingham Drain. Dist., 270 Mo. 164; Birmingham Drain. Dist. v. Railway, 274 Mo. 140; In re Wilhelmina Drain. Dist., 216 S. W. 530. And for tbe same reasons, it would seem that quo warranto wbuld not lie, for while this court has, under some circumstances, held that owners and taxpayers could maintain quo warranto to prevent tbeir lands being taken into municipal corporations, where they would immediately become taxable with certainty, on tbe ground that they bad sufficient interest to enable them to maintain such action, that principle would not seem to apply to tbe extension of boundary lines of a drainage district, under tbe Act of 1913, where tbe lands would not be taxed at all by reason of tbeir being incorporated into tbe district, and never would be taxed unless it should be later determined by commissioners, appointed to assess benefits, and tbe circuit court acting upon tbeir report, that tbe lands would be benefited by tbe execution of tbe contemplated improvement. As bis rights are not affected by bis lands being incorporated witbin the boundaries of tbe district, there is no more reason why he should be entitled to quo warranto than to an appeal or writ of error. Taxes may be levied and collected before the plan of drainage had been prepared and adopted. Houck v. Drain. Dist., 248 Mo. 373, 239 U. S. 254, 60 L. Ed. 266; Drainage Dist. v. Busehling, 270 Mo. 157; In re Wilhelmina Drain. Dist., 216 S. W. 530, 531; Els-berry Drain. Dist. v. Meyer, 209 S. W. 913. (8) A statute extending the boundaries of a municipal corporation is not unconstitutional because persons in the newly annexed territory may be subject to taxation for the purpose of paying in part the existing indebtedness of such corporation, they not having had any voice in its creation. Torey v. Macon, 119 G-a. 83, 46 S. W. 80, 195 U. S. 626, 49 L. Ed. 350; Valverde v. Shatterck, 19 Colo. 104, 41 Am St. 208. Considering what is said in relator’s brief about Section 2 and Section 40 dividing inhabitants into two classes and administering law differently, and the consequent unconstitutionality of the law, the following cases seem to be in point as holding against the contention there made: Carrithers v. City of Shelbyville, 104 S. W. (Ky.) 744;' Taggart v. Clay-pool, 145 Ind. 590, 32 L. R. A. 586. (9) This court will not in this proceeding consider the reasonableness or unreasonableness of the court’s action as affecting the validity of this proceeding. The action of the circuit court in fixing boundary lines, while judicial perhaps, in so far as it must determine the facts calling into operation its jurisdiction and powers, is in the main legislative, the court therein acting as a legislative agent. The courts will not examine an act of the Legislature to see if it is reasonable, and for this reason legislative extensions of boundaries have been held not open to attacks for unreasonableness. State v. Swaggarty, 203 Mo. 517; Prior v. Const. Co., 170 Mo. 439; Young v. Kansas City, 152 Mo. 661; Washburn v. Oshkosh, 60 Wis. 453; Madry v. Cox, 73 Tex. 538; State v. Waxahachie, 81 Tex. 626; People v. Fleming, 10 Colo. 553; In re City of Uniondale, 225 S. W. 985; Powers v. Wood, 8 Ohio, 285.</p>

Mandamus (1) Section 4, Article X, of the Constitution, does not ^/pply to a tax upon a franchise, license or privilege, and the “Secured Debt Tax Law”is a tax upon a privilege. Lndlow-Saylor Wire Co. v. Wollbrinck, 275 Mo. '339; Glasgow v. Rowse, 43 Mo. 479; Maguire v. University of Missouri, 271 Mo. 359; State ex rel. v. Henderson, 160 Mo. 190; State v. Bengsch, 170 Mo. 81; Kansas City v. Richardson, 90 Mo.

<p>1. FUGITIVE FROM JUSTICE: Requisition: Authentication of Papers. Papers incorporated in the application of the governor of another state demanding the return of a fugitive from justice, such as the sworn statement made by the warden of the penitentiary to the governor of that state, in regard to the crime, conviction and flight of such person, and authenticated by the certifidate of the said governor as being “authentic and as having been duly authenticated' in accordance with the laws oí said state,” are authenticated in the manner required by the Federal statutes.</p> <p>2. -■: -: By Governor. The demanding governor is the only proper person to determine the authenticity of papers incorporated in an application for a requisition; while his certificate does not make the charge 'a crime, it authenticates that which does make it such, and for this purpose it is conclusive.</p> <p>3. -: — -: Purpose: Charged With Crime. The purpose of the authentication of the charge in the application for a requisition is one of the prerequisites to determine whether the person sought to be extradited is a fugitive from justice; and the words “charged with crime” apply to a fugitive who has fled after conviction, as well as to one who has fled before conviction.</p> <p>4. -: Who Is. One who is shown to have committed a crime in one state, and when sought for, in order that he may be subjected to criminal process, is found in another state, is a fugitive from justice.</p> <p>5. -: Admission: Parole. An admission by petitioner for the writ of habeas corpus, both in his pleadings and in his application to the board of prison managers of the demanding state, that while under sentence for a felony in such state and under parole, he had violated his parole and fled to this State, is ample evidence to satisfy the Governor that he is a fugitive from justice and to authorize the granting of the requisition of the Governor of the demanding state, and the issuance of a warrant for his ar- , rest and delivery to the agent of that state.</p> <p>6. -: Evidence: Character: Prima-Pacie Case. Courts are not concerned with the character of evidence adduced before the Governor in support of an application for a requisition for a fugitive from justice. All that is required is that it be satisfactory to the Governor. And upon habeas corpus, the warrant of the Governor for the petitioner’s arrest, certifying that he is a fugitive from justice, makes out a prima-facie case against him, which he must overthrow before he can be released.</p> <p>7. -: Revocation of Parole: Proof. It devolves upon the petitioner for the writ of habeas corpus whose extradition has been demanded by another state and for whose arrest and return a warrant has been issued by the Governor, to show that the parole granted by the demanding state has not been revoked. If the parole constitutes' a ground why requisition should not have been granted, evidence to establish that fact must be offered by the petitioner.</p> <p>8. -: Violation of Parole: Extradition: Proof of Offense. A violation of the terms of his parole granted by the state demanding a fugitive from justice, while a moving cause for his extradition, is not the offense for which his return is demanded, but it is the felony of which he has been convicted, and that is made manifest by the indictment, the unsatisfied judgment of conviction and the application for his extradition; and upon a showing of these facts, without more, the issuance of the requisition by the Governor is authorized.</p>

Quo Warranto. (1) Quo warranto is a direct proceeding by the State and is available for nullifying the exercise of legislative power by a municipality, or by the legislative agent, in this case the circuit court. Sec. 2066, R. S. 1919; Sec. 2631, R. S. 1909; State ex inf. Killam v.. Colbert, 273 Mo. 198, 209; Black v. Early, 208 Mo. 308; State ex rel. v. Wilson, 216 Mo. 275; State ex rel. v. G-ravel Road Co., 187 Mo. 446; State ex rel.

<p>1. COUNTY: St. Louis. The City of St. Louis is a legal subdivision of the State, and as such has been and should be treated for all governmental purposes as a county.</p> <p>2. TAXATION: Classification of Real Estate: In St. Louis. The State Board of Equalization acts within its constitutional authority when it classifies real estate in the City of St. Louis in the same mannner it classified real estate in the counties of the State.</p> <p>3. -: -: .-: As Town Lots. The statute (Sec. 12855, R. S. 1919) directs the State Board of Equalization to “classify all real estate situate in cities, towns and villages as town lots, and all other real estate as farming lands.” Held, that the owner of a lot in St. Louis cannot complain of an action of tlie board increasing the valuation of lands in St. Louis ten per cent and town lots six per cent, since the board had the unquestionable statutory right to add to the valuation of town lots, and if her contention that there was no such thing as lands' within the city other than town lots were sustained she would not suffer, the increase on the valuation of her lot being less than that placed on other property classed as lands.</p> <p>4. CER.TIOR.AItI: Return in Two Days. Certiorari is a remedial writ, and at the instance of a private party may issue only at the sound discretion of the court, but when issued the court may fix such date for answer and return as it deems proper, and there may be circumstances requiring an immediate return'. But a writ directed to the State Board of Equalization commanding it to certify up its records altering the valuation of real estate in the City of St. Louis for a certain year, within two days, designates an unreasonably short time; but where the return is made and the board suffered no injury on account of the shortness of the time, its motion that the writ be' quashed on the ground that the court was without authority to require so quick a return and abused its. process should be overruled.</p>

Prohibition. (1) Sec. 5403, R. S. 1919, determines the power and jurisdiction of respondent in the instant case. State ex rel. Eeinstein v. Hartmann, 231 S. W. 982. (2) Said statute by express proviso declares “that the ballots in no way be used or any information disclosed that would tend toward showing who voted any ballot.” The phrase “tend toward showing” as used in the above statute has a clear and unambiguous meaning.

— Hon. William T. Ragland, Judge. ■ . (1) Upon careful reading of the statute it will be seen that there is nowhere any authority given or validity attached to a declaration of an election until after letters testamentary or administration are granted.

<p>1. RES ADJUDICATA: Sufficient Petition: Arbitration. A former ruling that allegations in a petition in the nature of a bill in equity were sufficient to question the correctness of the arbitrator’s award, is not determinative of the issues whether the trial court subsequently erred in striking from the files a motion filed by-plaintiff to .confirm the arbitrator’s award, or whether it erred in overruling defendants’ motion to stay proceedings or their motion subsequently filed to vacate said award.</p> <p>2. PENDENCY OF ANOTHER ACTION: Demurrer: Arbitration: Motion to Vacate Award: Motion to Strike from Files. The pendency of another action between the same parties and involving the same issue is not sufficient to sustain a ruling striking out a motion to vacate the award of the arbitrator, unless the pendency of such other action is made manifest by the face of the motion. A demurrer strikes only at the face of a pleading the sufficiency of which it assails; and if the motion to vacate the award of an arbitrator makes no reference to the pendency of another suit, a motion to strike it out on that account is futile as a demurrer and cannot be sustained.,</p> <p>3. APPEAL: Arbitration: Motion to Confirm Award: Prom Order Striking Out. A plaintiff which, files a motion in the circuit court to confirm the award of an arbitrator, is not entitled to an appeal from an order sustaining defendant’s motion to strike said motion from the files. The ruling is not a final disposition of the case, nor does it come within the class of interlocutory orders from which appeals are authorized under the general statute (Sec. 1469, R. S. 1919) or the chapter on Arbitration (Chap. 3, R. S. 1919).</p> <p>4. WRIT OF ERROR: Arbitration: Order Sustaining Motion to Vacate Award. A writ of error will not lie to review an order striking from the files a motion by defendant to vacate an arbitration award. The statute (Sec. 616, R. S. 1919) authorizes an appeal or writ of error from an order vacating an award, but it does not authorize either from an order overruling a motion to vacate; and such order, is neither a final judgment .nor such an interlocutory' order as will authorize an appeal therefrom under the general statute (Sec. 1469, R. S. 1919).</p>

<p>1. ACCOUNTING: Land in. Another County: Prayer for Compulsory Conveyance. Where plaintiff brought suit to set aside a sale under a deed of trust and to cancel a trustee’s deed conveying to defendant land in the county in which the suit is brought, and pending the suit, without notice of lis pendens, defendant conveyed the land, receiving in exchange as part payment land in another county, and the court adjudged that, under such circumstances, the plaintiff is entitled, by a suit for an accounting, to recover from defendant the value of the land so conveyed to him by the trustee, the said defendant cannot be compelled,' in the suit for an accounting, to convey the land in the other county so received by him in exchange, for the court does not have territorial jurisdiction to compel such conveyance; but the court has power, under the prayer for general relief, to compel defendant to account to plaintiff for the value of such land so received in exchange, although there is no specific prayer for such relief.</p> <p>2. EQUITY: General and Specific Prayer: Prayer for Conveyance: Judgment for Accounting. A court of equity may grant any relief consistent with the allegations of the petition. Where the petition contains a prayer for specific relief it may give a different relief; under a prayer for general relief it may, 'instead of granting a specific prayer to compel defendant to convey certain land to plaintiff, compel defendant to account for its value.</p> <p>3. ACCOUNTING: Limitations: Pendente Lite. The Statute of Limitations does not run while a suit involving the subject-matter is pending. Where plaintiff filed suit in 1903 asking that a certain deed be cancelled, for an accounting for rents and profits, and for general relief, and on appeal the judgment for defendant was reversed and the cause remanded, and thereafter in 1912 plaintiff filed an amended petition, alleging that pending the suit defendant had conveyed the land and asking for an accounting and for general relief, and on an appeal the judgment adjudging that plaintiff was not .entitled to the proceeds of the sale was reversed and the cause remanded with directions to proceed with a new trial on the question of accounting, either party to amend his pleadings so as to draw the issue upon that question more clearly, a second amended petition filed in 1917, stating the items of the account, was not barred by the five-year Statute of Limitations, for it did not declare on a new or different cause of action, and the suit had been pending at all times since 1903.</p> <p>4. -: -: -: Directions of Appellate Court. Where the Supreme Court remands a cause with express directions to the trial court to proceed with a new trial on the question of an accounting between the parties, that direction becomes the law of the case, and it is the duty of the trial court to take the accounting, and not to adjudge that an amended petition, which states no new or different cause of action, is barred by limitations.</p> <p>5. DEFENSES: Not Pleaded: Waiver. Where a defense might have been pleaded but was not, the defendant is concluded by the judgment as'to that'defense the same as if it had been pleaded and evidence introduced in its support.</p>

Louis City Circuit Court. — Eon. Franh Landwehr, Judge. (1) Fraud consists in bad intent, wbich must be alleged and proved. Moss v. Riddle, 5 Crancb (U. S.) 351. (2) Burden of proof to establish fraud is upon the one charging it. Bigelow o;'_ Fraud (Ed. 1877) p. 57; Anderson v. McPilce, 86 Mo. 300; Smith on Fraud (1907 Ed.) sec. 267, p. 290.

— Hon. E. M. Hearing, Judge. (1) Tlie court erred in giving instruction 1, for the reason that the testimony did not warrant the giving of said instruction. The testimony failed to show that the defendant used any force whatever in taking the money, watch or knife out of the pockets of Pressly, neither did he threaten him or put him in fear of any immediate danger whatever.

— Root W. S. G. Walker, Judge. (1) The indictment is sufficient. Sec. 3286, R. S. 1919; State v. Hunt, 190 Mo. 353; State v. Moore, 61 Mo. 276. (2) The verdict is supported by substantial evidence, and this court will not interfere. State v. Cannon, 232 Mo. 205, 215; State v. Sharp, 233 Mo. 269, 298; State v. Fields, 234 Mo. 615, 627; State v. Bidstrup, 237 Mo. 273, 283.

— Hon. Allen G. Southern, Judge. (1) This is an action in equity. In such cases this court will review tbe facts and determine upon tbe correctness of the judgment. Herryford v. Moore, 181 S. W. 390; G-ill v. Newhous'e, 178 S. W. 495; First National Bank v. Fry, 216 Mo. 24; Myers v. Scbucbmann, 182 Mo. 159; Primm v. White, 162 Mo. App. 594, 142 S. W. 802; Grazt v. City of Kirkwood, 165 Mo. App. 196; Courtney v. Blackwell, 150 Mo. 245.

St. Louis City Circuit Court. — Hon. Vital W. Garesche, Judge. (1) The burden of proof to show facts which might render a witness incompetent rests upon those who assert incompetency; for all witnesses “are presumed to be competent, until the contrary appears.” 3 Phillipps on Evid. (5 Am. Ed.) pp. 13, 35; Freleigh v. State, 8 Mo. 611; King’s Lake Dist. v. Jamison, 176 Mo. 570; Whit-, man v. Foley, 125 N. Y. 659.

<p>1. COURTS: Judicial Power: How Vested. The Constitution of 1875 in declaring in one section that "the judicial power of the State, as to matters of law and equity, except as in this Constitution otherwise provided,” shall be vested in a supreme court, courts of appeals, "circuit courts, probate courts, county courts and municipal corporation courts," vested in the courts named all the judicial power of the State, and left nothing to be disposed of by the General Assembly; and by providing, by other sections, for one circuit court, one county court and one probate court for each county; and. defining their jurisdiction, none of which was given jurisdiction in the affairs of municipalities, nor power to enforce their ordinances, it left to the Legislature power to create municipal courts, and that completed the scheme.</p> <p>2. -: Municipal Courts: What Are. The Constitution of 1875, in providing for the creation of "municipal corporation courts," did not contemplate courts of common law, equity and criminal jurisdiction for school districts, road districts and townships; but the constitutional power to establish municipal corporation courts has reference to municipal courts established to administer the affairs and enforce the ordinances of municipalities.</p> <p>3. -: Municipal Court: Common Pleas: Extra-Constitutional. The General Assembly has no power to create another court of record having concurrent jurisdiction with the circuit court of the county, in matters of law and equity, in all eases where the amount involved does not exceed one thousand dollars, even though it be designated as- a municipal corporation court. Such a court is not a municipal court, confined in its subject-matter jurisdiction to municipal affairs, but being given concurrent jurisdiction ydth the circuit court of the county, in certain matters of law and equity, is essentially a common ple'ás court; and the General Assembly was given no power to establish such inferior courts.</p>

<p>1. CONVEYANCE: By Coloration: Unauthorized by Directors. A deed of trust given to secure a collateral note of even date, signed by a corporation by its president and attested by the signature of its secretary and the seal of the corporation, and duly acknowledged by its president, the certificate stating that it was signed and sealed by the authority of its board of directors, whereby the company’s office, plant and place of business was conveyed to a trustee as security for the payment of the note, but in fact not authorized by its board of directors, of whom there were .five, two of whom were the president and secretary, is not a valid conveyance, and does not bind the corporation, although the president was the principal stockholder and no meeting of the directors or stockholders had been held for years. Corporate acts, such 'as the conveyance of lands, to be valid, must have the sanction and be authorized by the board of directors.</p> <p>' 2. -:-:-: Statutory Acknowledgment. The Legislature recognized that corporate acts are to be authorized by the board of directors in the statute (Sec. 2188, K. S. 1919) in which the form -of acknowledgment of a corporation was suggested, to contain, the sworn statement of its president or other chief officer that the "instrument was signed and sealed in behalf of said corporation;” and while such suggested form is merely directory, it conclusively implies that, in the legislative mind, the authority of the board of directors was an element of all corporate conveyances of land, and such implication is in harmony with the general law that, independent of statute, the authorization by the board of directors is necessary to the validity of a corporate mortgage attempted to be executed by its president upon its going plant as security for borrowed money.</p> <p>S. -: -: -: Equitable Estoppel. Equitable estoppel cannot be interposed to defeat a recovery upon the legal title unless it is pleaded; and where the evidence establishes that the execution of the corporate mortgage, regular on its face, was not authorized by its board of directors and was therefore void, it devolves upon the holder of the note, when sued by the corporation to have said mortgage removed as a cloud upon its title, to plead and prove any equitable defense it desires to assert in derogation of the legal title. But although said holder stands solely upon the legal title acquired by the mortgage, the court will examine the plaintiff corporation’s own evidence to ascertain whether it shows that the plaintiff is estopped, in equity, although equitable estoppel is not pleaded,, from asserting the invalidity of the mortgage and to have it removed as a cloud upon its title.</p> <p>4. -:-: —--: —-: Knowledge of Transaction: Personal Debt of President. Where the most of the debt to the bank, to secure which the president of a corporation executed a deed of trust, without authority from its board of directors, was long past due, and the remainder was created for the purpose of procuring the deed of trust regardless of the power of the board of directors to execute it, and the evidence tends strongly to show that the mortgage was given and received under an arrangement between the president and the bank to seeure the personal indebtedness of the president and not the debts to the bank of the corporation, a judgment refusing to remove said deed of trust upon the title of the corporation’s properties and holding that said plaintiff corporation is estopped to demand said relief on the ground that it owed the money to the bank and through its president executed a deed of trust regular on its face to secure it, will not be upheld.</p> <p>5. - — : -: -: Ratification. The president of a corporation who executes a deed of trust on its properties to secure the payment.of borrowed money, invalid because he was not authorized by its board of‘directors to execute it, cannot, by receiving and retaining the money in his capacity as manager of the business of the corporation, although he has been permitted by the directors and stockholders to exercise autocratic powers over its business, ratify said invalid deed of trust, and thereby estop the corporation to deny the validity of the security upon which the money was procured.</p> <p>6. -: -: Evidence: Admissions: Mortgage to Secure Personal Debt. Admissions made by the president of the corporation that certain indebtedness to defendant bank, claimed to be the debt of the corporation, was his personal debt, is admissible in evidence in an equitable suit to enjoin the foreclosure of a deed of trust executed by the president of the corporation, although said admissions were, made long after the deed was executed and to a public accountant who was auditing the corporation's books at the request of the bank. And likewise evidence showing that the proceeds of a loan to the corporation were absorbed by its president is admissible where the question whether it ought to be made a condition of cancelling the invalid deed of trust that the corporation repay the money defendant claims it received upon such security, on the ground that it was estopped in equity to ■ deny the sufficiency of the deed while retaining its benefits.</p>

Certiorari. (1) The Court of Appeals correctly decided that the hot-well connected with the boiler exploded, and, therefore, the sprinkler leakage system was broken by an explosion. Webster’s Dictionary, defining “explosion;” The Century Dictionary, defining “explosion.” The term explosion in a policy is to be eontrued in its ordinary and popular sense, and the word explosion in such policy should be construed to mean what an ordinary man would understand by such word.

<p>1. PUBLIC-SERVICE COMMISSION: Hearing Before General Counsel. An assignment that the Public Service Commission erred in appointing its general counsel as special examiner to conduct the hearing of a complaint pending before it, for the reason that said appointment was unauthorized by law, will be overruled, without determining the legality of the appointment, where it is apparent that appellant has not been injured thereby.</p> <p>2. RAILROADS: Compulsory Stoppage of Trains: Interference With Interstate Commerce. It is competent for a state to require adequate local facilities, even to the stoppage of interstate trains at a given point or the re-arrangement of their schedule; and the fact whether' the local facilities are adequate the court may determine and make its own findings, as a court of equity, since such fact is necessarily involved in the determination of the Federal question whether the order of the Public Service Commission concerning an interstate train does or does not directly regulate interstate commerce by imposing an arbitrary requirement.</p> <p>3. -: -: -: Mountain Grove. The St. Louis-San Francisco Railway Company has a line of railway from Kansas City to Memphis, Tennessee, passing through Springfield, and prior to January, 1918, its two interstate trains, one north and the other south, stopped at Mountain Grove, on flag, and the stopping of these trains at said point having been suspended the Public Service Commission ordered them to be stopped, the south-bound for the purpose of talcing on and discharging passengers at said point, and the north-bound, on flag "or signal, for the purpose of discharging passengers who boarded the train south of the Arkansas line and of taking on passengers holding tickets for points to or west of Springfield. To this order the railroacl company objects that the two trains are interstate trains between Kansas City and Memphis, with connecting lines for the interchange of interstate passengers and express traffic and the handling of the mails; that the elimination of the stops at Mountain Grove was to enable said trains to make necessary connections at said cities with trains on other railroads; that said orders directly burden and interfere with interstate commerce; and that the train service at Mountain Grove was adequate and reasonable, since two passenger trains northbound and two south-bound regularly stopped at Mountain Grove each day. The evidence shows that Mountain Grove has 2500 inhabitants; that two State institutions, maintained at an expense of $200,000 biennially, are located there; that these institutions are visited yearly by 700 people from this and surrounding states, and the inconvenience of getting in and out is great; that the two' regular south-bound trains' are invariably crowded, many passengers being unable to obtain seats; that if additional coaches were attached to these trains the congestion would be relieved; that Mountain Grove is a gateway for territory extending thirty-five miles north and northeast and the same distance south and southeast; that persons residing in this territory come there to board trains and to receive and ship freight; that before the stopping of the two interstate trains they furnished reasonably adequate facilities for travel, but much ineonvenienee and hardship have resulted from their discontinuance; that while they were stopped on flag at said point, from one to eight passengers got off the southbound train daily; that said interstate trains, in taking the mail at said point, slow down to a speed almost amounting to a stop; that if stopped, it would take five minutes to regain the speed, but said five^ minutes lost could be regained, under favorable conditions, between that point and Memphis, and the connection of fifteen minutes at Kansas City would not be missed. Held, that the order was not an unreasonable interference with interstate commerce,' and was justified by the facts.</p> <p>4. -: Suit Against Director General: Dismissal. An action brought "against a railroad company and the Director General of Railroads is not to be dismissed against the company, after the Government has ceased to operate the railroad. The Act of Congress authorizing the President to take charge of railroads in wartime, authorized actions to he brought against carriers and prohibits the carrier from making the defense that it is an instrumentality or agency of the Federal Government.</p>

— Hon. Joseph D. Perkins, Judge. (1) Under the will the widow took an absolute fee simple estate in all real estate owned by testator at the time of his death. .

— Hon. David II. Harris, Judge. (1) Plaintiff must prove Ms case, that is, that he has fee simple title, and having admittedly no possession he must prove a record title. Until plaintiff shows a fee simple title prima-facie, he cannot complain of weakness of defendant’s title. Wheeler v. Land Co., 193 Mo. 279; Stewart v. Lead Co., 200 Mo. 281; Gardner v. Robinson, 208 Mo. 605; 32 Cyc. 1372; 5 R. C. L. p. 675.

— Hon. Thomas B. Allen, Judge. (1) The instruction in the nature of a demurrer td the evidence should have been, given. No substantial evidence was introduced tending to establish that the negligence of the fireman caused the collision. Plaintiff’s evidence does establish that the fireman was at his post of duty, keeping a lookout through the front window of the cab, but nowhere in the record is there a semblance of testimony that he failed to exercise ordinary care'.

— Hon. Clarence A. Burney, Judge. (1) The court erred in not sustaining the instructions of defendants in the nature of demurrers to the evidence, (a) The cause of action here involved has been adjudicated by the District Court of the United States for the Northern District of Illinois, and its judgment is final. The decree of the Illinois court is res judicata and is not subject to collateral attack.

<p>Mandamus.</p> <p>(1) Section 7 of Article 4 of the Missouri Constitution is repealed by Section 57 of Article 4, and the redistricting by the Governor, the Secretary of State and Attorney-General is void. 8 Cyc. 749; People v. Angle, 109 N. Y. 564,17 N. E. 413; 12 Corpus Juris, 724; Board v. County, 58 Fla. 391, 50 So. 574; 36 Cyc. 1073; Pool v. Brown, 98 Mo. 675; Maxwell v. Dow, 176 U. S. 602; State ex rel. v. Hitchcock, 241 Mo. 433; State ex rel. Westhues v. Sullivan, 224 S. W. 327; Sears v. Mult-nomah Co., 49 Ore. 43; Arksansas Tax Comm. v. Moore, 103 Ark. 53; In re Interrogatories by Governor, 181 Pac. (Colo.) 197. (2) This attempt at redistricting is so unfair, both as to equality of population and compactness of territory, as to make it void. State ex rel. v. Hitchcock, 241 Mo. 433; Secs. 5, 6, 9, Art. 4, Mo. Constitution; 36 Cyc. 846-848; Donovan v. Comrs., 225 Mass. 55, 2 L. R. A. 1344; State ex rel. v. Cunningham, 81 "Wis. 440, 15 L. R. A. 561; Denny v. State, 144 Ind. 403, 31 L. R. A. 726; People v. Thompson, 155 Ill. 451; Brooks v. State, 162 Ind. 568; Ragland v. Anderson, 125 Ky. 141, 100 S. W. 865; Atty. Gen. v. Comrs., 224 Mass. 598; Giddings v. Blacker, 93 Mich. 1, 16 L. R. A.-402; Williams v. State, 145 Mich. 447; Stevens v. State, 181 Mich. 199; State ex rel. v. Stoddard, 25 Nev. 452, 51 L. R. A. 229; Baird v. County, 138 N. Y. 95, 20 L. R. A. 81; Re Timmerman, 100 N. Y. Supp. 57; Moore v. New York, 160 N. Y. Supp. 471; Williams v. Woods, 162 S. W. 1031; State ex rel. v. Cunningham, 83 Wis. 90, 17 L. R. A. 145; Re Dolling, 219 N. Y. 44; Sherrill v. O’Brien, 188 N. Y. 185; Re Livingston, 160 N. Y. Supp. 462. (3) Respondent is estopped to question the validity of the apportionment of 1901. Adams- v. Bosworth, 126 Ky. 61; Ragland v. Anderson, 125 Ky. 141; In re Reynolds, 202 N. Y. 439; State ex rel. v. Howell, 92 Wash. 540.</p> <p>(1) The initiative-and-referendum amendment did not repeal Section 7 of Article IV of the Constitution. State ex rel. Halliburton v. Roach, 230 Mo. 408. (2) Repeatedly since the adoption of the initiative-and-referendum amendment the Supreme Court has recognized that Section 7 of Article IV is still in force. State ex rel. Halliburton v. Roach, 230 Mo.-408; State ex rel. v. Hitchcock, 241 Mo. 457; State ex rel. v. Patterson, 229 Mo. 388. (3) To say, as relator does, that the initiative-and-referendum amendment removed from the Constitution all limitations on and exceptions to the legislative authority of the General Assembly leads to an absurdity, namely, the elimination from the Constitution of the multitude of important limitations on the power of the Legislature, including the' Ihirty-three set out in Section 53 of Article IY, and the Governor’s veto power, which is an essential part of the legislative authority of the State. (4) The initiative-and-referendmn amendment must be read in the light of the great rules of constitutional and statutory construction: (a) All parts of the Constitution are to be read together; (b) when of two possible constructions of a particular provision one is in harmony with and the other repugnant to another provision, dealing with the same subject, the first must be adopted; (c) the presumption is against repeal by implication. When so read, the language of the amendment —“the legislative authority of the state” — can only be construed to mean the legislative authority as elsewhere in the Constitution delegated to the General Assembly, subject to all the limitations and exceptions in the Constitution stated. (5) If there is a doubt as to whether the amendment repeals Section 7 of Article IV (and ,at least that such -a doubt exists appears from the decision of the Supreme Court and the numerous declarations of the judges thereof that Section 7 of Article IY was not repealed by the amendment), then we may look to the history of the amendment to ascertain the actual intent of the people in adopting it. That history shows that the repeal of Section 7 of Article IY was never contemplated or suggested. (6) The redistricting of 1921, being a legislative act, is presumed to be constitutional. (7) The redistricting of 1921, both as to compactness and equality of population is greatly superior to' those of 1881, 1891, 1901 and the 1911 attempted redistricting. The fact that a redistricting is superior to any ever before laid out by reasonable men shows that it is at least a reasonable approach to the standards fixed in the Constitution. (8) The redistricting of 1921, both as to compactness and equality of’ population, is greatly superior to that of the Constitution of 1875 itself as that redistricting appears in Section 11 of Article IY. That redistricting is a proper measuring rod. That redistricting must be presumed to have satisfied the constitutional standards. A fortiori a better redistricting is constitutional. (9) The redistricting of 1921 is tlie best that can be made. The districts thereof are as nearly compact and equal in population as may be. (10) To set aside the 1921 redistricting is to continue that of 1901, which grossly departs from the constitutional standards. The Supreme Court will not exercise jurisdiction when that is the inevitable result. State ex rel. v. Hitchcock, 241 Mo. 516. (11) As a necessary element in his cause of action relator alleg’es the validity of the 1901 redistricting. The return puts that in issue. The 1901 redistricting patently departs from the constitutional requirements. In no event, therefore, is relator entitled to a mandamus.</p> <p>(1) Section 10 of Article X of the Constitution directs the vesting of most important legislative authority (that of levying taxes), in the corporate authorities of counties, cities and towns. Elsewhere in the Constitution like legislative authority is required to be delegated to school districts. If the initiative-and-referendum amendment constituted a revesting of all legislative authority, with no provision for the delegation of any part thereof (and there is none), then Section 10 of Article X has been repealed by implication. (2) If, as relator says, the people in 1908 first resumed all of the legislative authority they had originally conferred on the General Assembly and others and then vested that legislative authority but this time only in the General Assembly, then the amendment unquestionably supersedes, not only the proviso in Section 7, but all of Section 1 of Article IV. Why leave in the Constitution the section which contained the original vesting of legislative authority, when that original vesting* has been withdrawn? Then Section 1 also has been repealed, including the clause, “subject to the limitations herein contained,” for that clause was but a qualification of the power bestowed and with the withdrawal of the power, the qualification, of course, ceases to have meaning. The result is that the relator is forced back to his original and discarded theory, namely that when the people, as he says, having resumed the power theretofore bestowed, again vested it, they vested it without any limitation whatsoever. (3) If the amendment is read (as it should be if we obey the great rules of constitutional and statutory construction) in connection with the rest of the Constitution there is no difficulty.. Then the meaning of “the legislative authority of the State” will be seen to be the legislative authority of the State not otherwise delegated in the Constitution and subject to all the limitations and exceptions in the Constitution stated. Moreover, the true purpose of the initial language of the amendment becomes then apparent. It is merely a conjunction joining the substance of the amendment -to the original constitution, equivalent to saying “while the legislative authority shall remain as hitherto, the people now provide a method for direct legislation on their own part and for the referendum.” It is perfectly plain from the whole amendment that there was no intention to recast the old Constitution, but merely to add something to it. If there had been any intention whatever of subjecting the redistricting authority of the three executive officials to the referendum, it could have been accomplished by simply saying that every “legislative act” shall be subject to the referendum, instead of applying it only to every “act of the Legislature.” How absurd to attempt to accomplish an end, which could have been reached so easily, by the cumbrous, vague, indirect and obscure method of first resuming all legislative authority and then revesting it!</p> <p>(1) We have corrected Point I of our original brief, so as to limit its application to the power formerly possessed by the Governor and his associates as to district-ing the State. Of course, as the body of the brief clearly shows, we never contended that Section 57 repealed all of Section 7. (2) We have never contended that Section 57 repealed any prohibition contained in the Constitution whereby the Legislature is forbidden to exercise certain legislative power. We claim that all of those prohibitions are absolutely unaffected by Section 57. We restate our position solely because of the statement made in respondent’s brief that we did claim that these limitations were repealed. (3) Respondent has in his brief an oral argument virtually confessed that our Point One is right. He admits that so much of Section 7 as confers any power upon the Governor and his associates is a grant and not a limitation. But since Section 57 reassigns and relocates all of “the legislative authority of the State, ’ ’ and does not bestow any part of it upon the Governor and his associates, they have no legislative power or authority, and hence cannot perform the legislative act of redistricting the State. Even on the theory that the phrase “the legislative power” in Section One is the exact equivalent or is used in the Constitution as synonymous with “the legislative authority of the State,” as used in Section 57, we are still entitled to judgment, for these reasons: No one can for an instant contend that all legislative power was, by the Constitution of 1875, vested in the General Assembly and in the Governor or his associates. All of the large number of legislative powers the use of which is prohibited to any one by the Constitution are excluded from the grant of power to the General Assembly and to the Governor and his associates. This exclusion is effected by the clause “subject to the limitations herein contained” in Section 1. It follows beyond doubt, then, that only so much legislative power was granted as remained after the excluded or prohibited legislative powers were deducted or subtracted from all legislative power, using that phrase in its broadest sense. Clearly this remainder of legislative power is all that ever was vested by the Constitution of 1875 in the General Assembly and in the Governor and his associates. If, then, the phrase “legislative power” as nsed in Section 1 is held to embrace only this remainder, then, even if the phrase “legislative power” as used in Section 1, be construed as the exact equivalent of the phrase “the legislative authority of the State” as used in Section 57, it necessarily follows that the constitutional prohibitions upon the use of certain legislative powers remain absolutely untouched, notwithstanding Section 57, as we insist they do. But since Section 57 vests all of this remainder of legislative power, or authority, in the Senate and House of Representatives (subject to the reservation of the rights of initiative and referendum to the people), there is still no legislative power in the Governor and his associates, and they cannot redistrict the State. Respondent may take whichever horn of this dilemma he chooses. Relator should prevail in either event, (b) The words “the legislative authority of the State” in Section 57 embrace all legislative power theretofore granted by Article 4 to the General Assembly and to the Governor and his associates, and they do not confer any other or additional legislative power or authority, and hence the legislative powers excluded by the Constitution of 1875 are still excluded. Since the grant in Section 57 does not include the Governor and his associates, the power theretofore granted them by Section 7 is taken away. (4) Respondent’s contention cannot be true, for it leads to absurd results. If his contention is true, the people, by the right of initiative, can redistriet the State; the General Assembly can redistrict the State, and (if it fails to act) the Governor and his associates can redistrict the State. Three separate legislative bodies thus have power to do the same act, to-wit, the people, the General Assembly and the miniature legislature. (5) Another absurd result of respondent’s contention is this: By Section 57, the people undoubtedly have power to refer for their owu approval or rejection, a redistricting made by the General Assembly. This is an evidence of popular distrust of the General Assembly. But the people cannot refer a redistricting made by the “miniature legislature” because the power to refer contained in Section 57 applies only to “any act of the legislative assembly” and in Section 57 the legislative assembly is defined as “consisting of a senate and house of representatives.” But the senate and house of representatives are given the power first to act in redistricting. Under respondent’s theory, the people reserved the power to review the acts of representatives and 34 senators, but reserve no such right as to the act of the Governor, Secretary of State and Attorney-General. That no such absurdity was intended by the people is evidenced by the fact that by Section 57 all legislative power is taken away from the three officials named. Another reason for that deprivation of power may be found in the fact — if it be a fact — that, according to respondent’s distinguished counsel, every exercise of this power by every Governor, Secretary of State and Attorney-General had been a glaring abuse of power.</p>

Certiorari. (1) Instruction No. 10 given for tlie plaintiff is in conflict with Nicholson v. Rogers, 129 Mo. 141; Ruth v. St. Louis Transit Co., 98 Mo. App. 18; Bosch v. Miller, 136 Mo. App. 493. That instruction is a direction to the jury to award both actual and punitive damages and is clearly in conflict with the authorities cited. (2) Instruction No. 9 is clearly in .conflict with Smith v. Burrus, 106 Mo. 99.