author: GOODE, J. GRAVES, J.

text:
    HARRY DWORKIN and S. GRENT v. CALEDONIAN INSURANCE COMPANY, Appellant.
    In Banc,
    December 13, 1920.
    1. FIRE INSURANCE: Appraisement Clause: Annullment by Statute. The statute (Sec. 868, R. S. 1909) declaring that a clause in a contract’“providing for adjustment by arbitration’’ shall not preclude either party from instituting suit on such contract, does not annul a clause in a subsequent insurance policy for the ascertainment by appraisement of the amount of damage done by fire to the insured property if the parties cannot agree as to the amount of the loss. [GRAVES and WOODSON, JJ., dissenting.]
    2. -: —-: -: Appraisement and Arbitration. The statute provides for the adjustment of controversies “by arbitration,” which means more than a mere appraisement. The fundamental difference between arbitration and appraisement lies in the procedure to be followed and the effect of the findings. An agreement to arbitrate is an agreement between parties who are in a controversy, or look forward to the possibility of being in one, to substitute a tribunal other than the courts to determine their rights; and arbitrators, like a judicial tribunal, must give notice to the parties of the time and place of hearing, and listen to and decide upon the evidence offered, and the original cause of action becomes merged into their award, which may be declared upon at common law as a new demand, or, under our statute, judgment may be entered upon it by the court designated. In simple appraisal of' values, the appraisers, if they wish, may hear what others have to say on the questions they are to determine, but unless the agreement so provides they are not bound to take testimony and may decide from their own knowledge or opinion, nor does their award create a new cause of action, but the liability of one party to thfe other is still upon the contract. An agreement to submit to appraisers the amount of the loss or value of property, even if the parties have disagreed about the matter, is not an agreement for arbitration.
    3. -: -: -: Intention of Parties. An agreement in an insurance policy that the estimate of the damage or loss caused by fire should be made by two appraisers, and, if they could not agree, by them and an umpire, containing none of the details of procedure required by the statute in an agreement for arbitration, such as a stipulation for the submission of the controversy in writing, or that some court might enter a judgment upon the award, or that the arbitrators should be sworn, and no stipulation, for a hearing or for the taking of testimony or that the award should extinguish liability, was not, in the intention of the parties, an agreement for either a statutory or common-law arbitration; and as the statute precludes a suit on the contract only when it contains a clause "providing for adjustment by arbitration," such an agreement to submit the amount of the loss or damage to appraisers was binding. [GRAVES and WOODSON, JJ., dissenting.]
    4. ARBITRATION: Applies to All Contracts. Section 868, Revised Statutes 1909, declaring that a clause in a contract “providing for adjustment by arbitration" shall not preclude an action on the contract, applies to all contracts, and cannot be restricted to fire insurance policies.
    5. -: Use in Technical Sense: Adjustment. The difference between an agreement for an arbitration and an agreement for an appraisement had been recognized by the courts of this State for many years prior to the enactjment in 1909 of Section 868, Revised Statutes 1909, which provided that a clause in a contract “providing for adjustment by arbitration” should not preclude an action on the contract, and therefore the word “arbitratión” must be understood as having been used in its technical sense; and another statute (Sec. 8057, R. S. 1909) provides that “technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import” and precludes a rendering of the word “arbitration” to mean “appraisement.” The word “adjustment” is not a technical word, but means to fit, arrange, settle, equalize; and if the Legislature had meant by that word to include the word “appraisement” it would have been easy to make the phrase in Section 868 say that clauses in contracts “providing for adjustment by arbitration or appraisement” should not preclude a suit on the contract; and as the word “appraisement” was not used the court cannot supply the ommission, or rule that the word “adjustment” supplied it. [Distinguishing Young v. Insurance Co., 269 Mo. 1, ?,nd disapproving of the expression therein to the effect that Sec. 899, R. S. 1899, and the Act of 1909, construed together, indicated a legislative purpose to render void provisions to enforce “arbitration or settlement by means of appraisers under insurancé policies.”]
    Held, by GRAVES, J., dissenting, with whom WOODSON, J., concurs, that “adjustment by arbitration,” as used in Section 868, Revised Statutes 1909, was, in the legislative mind, adjustment by appraisal, or by any other means which hampered the right to go into a court of justice, and the statute was meant to strike out of all contracts all provisions therein which would deny to the parties thereto a right to sue thereon.
    6. STATUTES: Interpretation: Conjectured Purpose: Omissions. The legislative purpose in passing a law is not to be conjectured, but must be ascertained from the act itself. The agreements the legislators meant to strike at must be determined by what they said, and is not to be surmised, as a probable intention. The courts cannot supply words which, they feel sure, were intended to be included, but by oversight were omitted..
    Appeal from Jackson Circuit Court.—Hon. Harris Robinson, Judge.
    Reversed and remanded.

      C. C. Crow for appellant.
    (1) Sec. 868, R. S. 1909, enacted in 1909, Laws 1909, p. 347, as construed in the Young case, is in direct conflict with Art. II, Sec. 30, Constitution of Missouri, and XIV. Amendment of IF. S. Constitution. If the statute is to be construed as stated in the case of Young v. Insurance Company, 269 Mo. 1, the plaintiffs and defendant are absolutely prohibited from entering into an agreement or a contract by which the amount of' loss, if any, under the policy sued on, could be ascertained by appraisement, and it is, and at all times has been, the law that parties have a constitutional right to enter into contracts of this character. Such a contract does not come within the police power of the State. Adinoln v. Hazlett, 242 Pa. 25; State v. Missouri T. & T. Co., 181 Mo. 53é; State v. Loomis, 115 Mo. 307; State v. Jule, 129 Mo, 337. To contract is a property right. Hickman v. Mitchell, 172 Fed. 963; Mathews v. Peo, 202 111. 389. (2) This court in the case of Young v. Insurance Company, 269 Mo. 1, lias something to say about the construction of this statute, but every word with reference to the construction of the statute is obiter. The statute expressly provides in terms that cannot be mistaken, against arbitration, and.reads: “providing for an adjustment by arbitration;” while the wording of the contract in this case is appraisement of the amount of the loss. Arbitration settles the case and adjudicates the law and the facts, but appraisement merely refers to the amount to be ascertained by appraisement of an unliquidated claim. Stevens v. Fire Insurance Company, 120 Mo. App. 103. On the question of obiter, see, State v. Railroad Co., 242 Mo. 359. “Adjustment by arbitration” cannot apply to a contract providing for ascertaining the amount of an unliquidated claim by appraisement, and we assume that no such ruling would have been made had the question been for decision. Zalleev. Ins. Co., 44 Mo. 530 ; 5 Corpus Juris, sec. 4, p. 17; Garret v. Macy, 10 Mo. 161. (3) The"'court erred in giving plaintiffs’ instruction 5. Mr. A. B. Harris, agent for defendant, wrote a letter to plaintiffs, after many efforts had been made to settle with them, in which letter he stated -that the amount demanded in proofs of loss was grossly ^excessive, and demanded an appraisement under the terms of the policy. This letter was introduced in evidence by the plaintiffs, making the records show a specific demand for an appraisal of the amount of loss, and. this letter was introduced in evidence without any qualifications and without objection. Afterwards, defendant offered in evidence the answer of plaintiffs to the letter written by Mr. Harris, refusing to appraise and to which letter plaintiffs interposed vigorous objections and the court admitted the letter in evidence, but at the same time limited its effect to the question as to vexatious delay. This instruction was clearly erroneous, because the plaintiffs having introduced the first letter without qualifications, could not object to the second letter in response thereto and have the effect thereof qualified. (4) The court erred in refusing to give, at the request of defendant, Instruction 1. This instruction was requested in pursuance to our theory that as construed in the Young case, the statute is unconstitutional and void, and further that the Supreme Court had expressed an obiter opinion that the clause of our policy providing for appraisement was void, or at least voidable at the election of the plaintiffs, and pn the further theory that the plaintiffs having introduced testimony showing a demand for an appraisal under the terms of the policy, and there being no showing that the .demand was complied with, but distinct showing that plaintiffs refused to appraise, the issue was before the court whether the statute is constitutional or not, and even if the statute is constitutional, then even though' the construction placed on the statute be adopted that was. placed upon it in the Young case, the 'instruction was still proper because plaintiffs made the issue and waived any objection they might have thereto.

      Xenophon P. Wilfley, William S. Hogsett and Murat Boyle, amici curiae.

    Section 868. R. S. 1909, relating to agreements providing for an adjustment by arbitration, does not nullify the appraisal clause in the policy, providing for the ascertainment of the amount of loss hv an appraisal, (1) The statute does not use the term “appraisal,” but is limited expressly to “arbitration.” The policy does not use the term “arbitration,” but provides only for an “appraisal.”. . (2) There is a wide difference between “appraisal” and “arbitration.” Zallee v. LacMde Ins. Co., 44 Mo. 530; Harmon v. Ins. Co., 170 Mo. App. 309; Paint Co. v. Ins. Co., 165 Mo. App. 30; Pierce Loan Co. v. Ins. Co., 200 S. W. 120; Non-Royalty Shoe Co.' v. Phoenix Assurance Co., 178 S. W. 246: Fleming v. Phoenix Assurance Co., 75 Hun, 530, 27 N. Y. S. 488; Ins. Co. v. Ries, 80 Ohio St. 272; Martin v. Ins. Co., 64 N. Y. S. 873; Brink .& Mehlen v. Ins. Co., 5 Robertson (N. Y.) 104; American Steel Co. v. Ins. Co., 187 Fed. 730; Sholz v. Mills, 176 Mo. App. 352; Holmes v. Sheppard, 49 Mo. 600; Yeatman v. Clemens, 6 Mo. App. 210; Curry v. Lackey, 35 Mo. 389; Garred v. Macey, 10 Mo. 161; Leonard v. Cox, 64 Mo. 32; Toledo v. Zenith Trans, Co., 184 Fed. 391; The Glencairn, 78 Fed. 379; Railway v. Moore, 64 Pa. 91; Sebree v. Board of Education, 254 111. 438, 446; M. E, Church v. Seitz, 74 Cal. 287; Foster v. Carr, 135 Cal. 83; Willingham v. Yeal, 74 Ga. 755; Giles v. Railway, 57 Kan. 70; Norton v. Gale, 95 111. 533; Palmer v. Clark, 106 Mass. 389; Rochester v. Whitehouse, 15 N. H. 468; Hale v. Handy, 26 N. H. 216; Atkinson v. Whitney, 67 Miss. 655; Noble v. Grandin, 125 Mich. 383; Birdsall v. Ayres, 21 N. Y. Supp. 896; Garr v. Gomez, 9 Wend. 649; Bierly v. Williams, 32! Va. (5 Leigh) 700; Turner v. Railway, 132 N. Y. Supp. 418; Kelly v. Crawford, 5 Wall, 786; Stose v. Heissler, 120 111. 433; Keiser v. Berks County, 253 Pa. 167; Wurster v. Armfield, 175 N. Y.-256; Thompson v. Newman, 171 Pac. (Cal.) 982; Omaha Water Co. v. Omaha, 162 Fed. 225; 5 Corpus Juris, 17. (3) If the words of a statute are plain and unambiguous it is not within the province of a court to resort to other means of interpretation than the words themselves. Railway v. Clark, 53 Mo. 216; State v. 'Mills, 161 Mo. App. 185“State v. Jaeger, 157 Mo. App. 340; Koch v. Bridges, 45 Miss. 247; U. S. v. Hart-well, 6 Wall. 396; Scott v. Reed, 10 Pet. 527; People v. Sands, 102 Cal. 16; McCay v. Railway, 75 Conn. 608; Gilbert v. Dutruit, 91 Wis. 665; Siegel v. Swartz, 117 Fed. 13; Lemonins v. Mayer, 71 Miss. 552; Rosen Plaenter v. Roessels, 54 N. T. 262; Farrell Foundry v. Dart, 26 Conn. 382; Woodbury v. Berry, 18 Ohio St. 462; Douglas v. Freeholders, 38 N. J. L. 214. (4) Even if the court believes that the Legislature intended something not expressed by the act, it cannot depart from the language of the act if free from ambiguity. Henry County v. Evans, 97 Mo. 55; Gregory v. Kansas City, 244 Mo. 552; State ex rel. v. Board of Curators, 268 Mo. 608; Drainage District v. Winkelmeyer, 212 S. W. 895; Kehr v. Columbia, 136 Mo. App. 329; Smith v. State of Maryland, 66 Md. 215; Woodbury v. Berry, 18 Ohio St. 456; Johnson v. Railway, 49 N. T. 462; Broadbury v. Wagenhorst, 54 Pa. St. 182;; Alexander v. Worthington, 5 Md. 471; United States v. Ragsdale, Fed. Cas. No. 16113. (5) Technical words, and words which have acquired a peculiar and appropriate meaning. in the law, must be interpreted in accordance with their technical import. Sec. 8057, R. S. 1909; Patchin v. Bousack, 52 Mo. 433; Ex parte Bethurum, 66 Mo. 548; Wilson v. County, 132 Mo. 387; State v. Clipper, 142 Mo. 474. (6) “Arbitration” and “appraisal” have been rigidly distinguished by the courts', and each term has been given a technical meaning, and a peculiar and appropriate meaning in the law; and it is therefore beyond the province of the court to construe the one term to include the other. Authorities, supra. (7) At the time Section 868 was enacted this court had clearly defined the difference between “arbitration” and “appraisal” in numerous decisions. The Legislature presumably knew the distinction between the terms as this court had defined them, and presumably used the term “arbitration” advisedly, and did.not intend thereby to mean “appraisal.” (8) Compliance by the assured with the company’s demand for an appraisal is a condition precedent to the institution of suit' upon the policy. Non-Royalty Shoe Co. v. Ins. Co., 178 S. W. 253; Stevens v. Ins. Co., 120 Mo. App. 104; G-ragg v. Ins. Co., 140 Mo. App. 685; Gragg v. Ins. Co., 132 Mo. App. 405; James v. Ins. Co., 135 Mo. App. 247; Carr v. Ins. Co., 104 Mo. App. 502; Fowble v. Ins. Co., 106 Mo. App. 502; Murphy v. Ins. Co.. 61 Mo. App. 323; McNees v. Ins. Co., 61 Mo. App. 335; McNees v. Ins. Co., 69 Mo. App. 132; Murphy v. Ins. Co., 70 Mo. App. 78; Hooker v. Ins. Co., 69 Mo. App. 141; Dantel v. Ins. Co., 65 Mo. App. 44; Vining v. Ins. Co., 89 Mo. App. 311. (9) The appraisal clause is a valid agreement which does not tend to oust the courts of jurisdiction, as it merely provides for an ascertainment of the amount of the loss, leaving all other questions to be judicially determined. Hamilton v. Ins. Co., 1.36 U. S. 242; Graham v. Silberman, 75 Ohio St. 374, 15 L. R. A. (N. S.) 1055; Western Assurance Co. v. Hall, 112 Ala. 318; Hall v. Ins. Co., 57 Conn. 105; Service Co. v. Ins. Co., 171 Mass. 433; Grady v. Ins. Co., 27 R. I. 435; G-asser v. Sun Fire Office, 42 Minn. 315; Chapman v. Ins. Co., 89 Wis. 572; Ins. Co. v. Oonnihan, 63 Ohio St. 258; Ins. Co. v. Craub, 83 Md. 524; Carroll v. Ins. Co., 72 Cal. 297; Ins. Co. v. Clancy, 71 Tex. 5; Lumber Co. v. Ins. Co., 80 Mich. 116; Wolf v. Ins. Co., 50 N. J. L. 453; Richards on Insurance (3 Ed.), pp. 420, 421; 4 Cooley’s Briefs, p. 3606.

      George Halpin and Bruce Barnett for respondents.
    (1) The policy provision that in event of failure to agree upon the amount of the loss, the same shall be ascertained by appraisement, is void. R. S. 1909, sec. 868; Young v. Ins. Co., 269 Mo. 1. (2) The section is leveled against the policy provision in question for the reasons: (a) The statute employs the words, “adjustment by arbitration, ” which clearly embraces a provision for adjustment of dispute as to the amount of liability, where liability is conceded as in this case, inasmuch as the word “adjustment,” in its original and most commonly used sense, refers primarily to'the ascertainment of the amount of liability rather than to the question as to whether any liability exists and most commonly and primarily to the ascertainment of the amount of losses covered by insurance, the word being one originally applied to ascertainment of the amount of losses under marine insurance policies. Washington Co. v. Ry. Co., 58 Mo. 372; Whipple Trustee v. Fire Ins. Co., li R. I. 139; State v. Staub, 61 Conn. 568; Baxter v. State, 9 Wis. 37; State ex rel. Sayre v. Moore, 40 Neb. 854, 25 L. R. A. 774; Willoughby v. Ger. Ins. Co., 68 Minn. 375; First Nat. Bank v. Fire Assurance Co., 64 Minn. 100. (b) While the policy provides that the loss shall “be ascertained” by appraisers and umpire, it is clear that it is not a mere ascertainment of amount of loss that is provided for, but an arbitration, because the policy provides that the loss shall be so ascertained only “in the event of disagreement as to the amount of the loss.” The ancient distinction between an arbitration' and an appraisement or ascertainment of damages or amount of loss is bottomed upon the proposition that ordinarily there is no disagreement or dispute between the parties where a matter is submitted to ascertainment of amount by appraisement; ordinarily such means of ascertainment as to amount is adopted upon the theory that the parties are not informed as to. the amount and adopt the appraisement as a means of ascertainment, but where the parties do not assume toward each other the attitude of ignorance as to the amount, but each takes a jjosition and disagreement or dispute arises, the somalled ascertainment or appraisement then becomes a matter of the settlement of a dispute, which is the essential characteristic of an arbitration. M. K. & T. Ry. Co. v. Elliott, 56 Fed. 774; Curry v. Lackey, 35 Mo. 394; Russell on Arbitration (3 Ed.), p. 43; Morse on Arbitration &■ Award, p. 40. (3) This court has construed this identical statute as applicable to this identical policy provision but appellant attacks the decision as being an obiter dictum, to which we reply that there has been many a rational obiter dictum and that the reasoning’ and decision of this court upon the question has been most sound. Young v. Ins. Co., 269 Mo. 1. “Arbitration” and “appraisal” are used interchangeably and without difference of meaning. Sebree v. Board of Education, 254 111. 438.' (4) Under an ancient doctrine of the common law “it is settled that a provision or agreement in an executory contract, that any dispute which may arise thereunder shall be submitted to arbitration, will not, in the language' of the authorities, ‘oust the courts of their jurisdiction’ or in other words, bar a suit, either at law or in equity. Such an agreement is said to be contrary to public policy, a ruling sometimes attributed to the jealousy of the courts, and a desire to repress all attempts to encroach on the exclusiveness of their jurisdiction, and sometimes to an aversion of the courts, from reasons of public policy, to sanction contracts by which the protection which the law affords the individual citizen is renounced.” 2 R. C. L. p. 360; Hartford Fire Ins. Co. v. Hon., 66 Neb. 555; Mentz v. Ins. Co., 79 Pa. St. 478; Hostetter v. Pittsburg, 107 Pa. St. 419 -r Yost v. McKee, 179 Pa. St. 381; Ins. Co. v. Hocking, 115 Pa. St. 407; German-Am. Ins. Co. v. Etherton, 25 Neb. 505; Kenney v. Employees Assn., 35 W. Va. 385; Doyle v. Ins. Co., 94 U. S. 535; Home Ins. Co. v. Morse, 20 Wall. 445. (5) According, to well reasoned decisions, the statute is declaratory of the common law and goes no further. Fire Ins. Co. v. Hon., 66 Neb. 555; German-Am. Tns. Co. v. Etherton, 25 Neb. 505; Ins. Co. v: Bachler, 44 Neb. 563; Ger. Ins. Co. v. Eddy, 36 Neb. 461; Home Fire Ins. Co. v. Bean, 42 Neb. 537; Nat. M. Acc. Assn. v. Burr, 44 Neb. 256. The law-making power is not abused or arbitrarily exercised by simply enlarging or extending to a sligfit degree, the operation of an ancient and w'ell-established principle of public policy. Statutes which limit the right of contract, for the whole some purposes of public policy, are upheld as constitutional by this and other courts. State v. Mo. Pac. Ry. Co., 242 Mo. 339.
   GOODE, J.

This appeal requires us to decide whether the statute, presently to be quoted, annuls the clause in a contract of insurance for the ascertainment by appraisement of the amount of the damage done by a fire to the property insured if the insured and the company could not agree as to the amount of the loss. The policy is not set out in full, in the record, and we must get at the intention of the parties to it by wbat is before us, part of which we abridge and copy a part.

The policy provided regarding a loss by fire, that it should be ascertained or estimated according to the cash value of the property consumed or damaged, with a proper deduction for depreciation; that the amount of the loss should 'not exceed what it would cost the company to repair or replace the property with material of like ldnd and quality, that the estimate of the damages should be made by the insured and the company, and if they should differ, by appraisers; that the amount of the loss having been thus ascertained, it should be payable sixty days after the estimate and satisfactory proof of the loss had been received by the company; but that the company should have the option “to take all, or any part, of the articles at such ascertained or appraised value,” or to repair or replace what were lost or damaged, with orders of like ldnd and quality, on giving notice of the intention to do so within thirty days after proof of loss was received. This clause follows those terms:

“In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers/ the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss; stating separately sound value and damage, and. failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss: the parties thereto shall pay the appraiser respectively selected by them and shall bear equally the expenses of the appraisal and umpire.

The policy covered a stock of merchandise and also the furniture and fixtures in the storeroom. There was a policy written by another company covering the same property, and the defendant is only-liable for one-half of the loss.

The first count of the petition was for the loss on the merchandise, which plaintiffs alleged was in excess of $2400, that being the total amount of insurance on the stock, wherefore they asked judgment against the defendant for $1200. In the second count the loss on the furniture and fixtures was alleged to be.in excess of $600, or the. total insurance on the property, and ju dgment was demanded against the defendant for $300.

I. The only dispute between the parties was regarding the amount of the loss, and to have this ascertained by the method provided in the policy the company demanded an appraisement, which demand, for the purpose of this case, we may say was refused by the plaintiffs. One of the instructions to the jury was “that the plaintiffs 'were not required to enter into an appraisal with the defendant as to the amount of the loss!” The full amount of damages prayed for, in each count was assessed by the jury, and judgment having been entered on the verdict, this apppeal was taken.

The statute to be interpreted is Section 868 and is contained in the revision under the title “Arbitration,” and in the Session Laws of 1909 under the title “Contracts and Promises,” it having been enacted as an amendment to Chapter 10, Revised Statutes 1899, relating to Contracts and Promises, by adding thereto “a new section to be known as Section 899a.” [R. S. 1909, sec. 868; Laws 1909, p. 347.] As found in the Session Laws, omitting the title, the enactment reads as follows:

“Section 1. Contract to arbitrate not to preclude filing of suit.

Bé it enacted by the General Assembly of the State of Missouri, as follows:

“Section 1. Contract to arbitrate not to preclude fling of suit.—That Chapter 10 of the Revised Statutes of Missouri, 1899, relating to contracts and promises, be and the same is hereby amended by adding thereto a new section, to be known as Section 899a, said section to read as follows: Section 899a. Any contract or agreement hereafter entered into containing any clause or provision providing for an adjustment by arbitration shall not preclude any party or beneficiary under such contract or agreement from instituting suit or other legal action on such contract at any time, and the compliance with such clause or provision shall not be a condition precedent to the right to bring or recover in such action.
“Approved June 14, 1909.”

The defendant contends the statute does not operate to annul a stipulation in an insurance policy that, in case the parties do not agree on the amount of the loss, it shall be estimated by two appraisers and an umpire. In support of this position it is argued the statute was intended only to annul a stipulation in a contract for 'an arbitration-, which is a method of settling controversies so long in use that the word “arbitration” has acquired a settled technical meaning different from a mere appraisement or estimate of losses and value—in short, that an appraisement is not an arbitration.

Agreements for the two proceedings have been regarded by the courts well nigh universally as agreements for separate and distinct proceedings, and this for various reasons. Sometimes it has been pointed out that an agreement for an arbitration implies a controversy between tbe parties at tbe time of tbe submission, which is to be the subject-matter of the arbitration; whereas a stipulation for an appraisement of values does not presuppose a controversy. [Garred v. Macey, 10 Mo. 161, 164; Curry v. Lackey, 35 Mo. 389, 394.] No one would say a contract between two persons which contemplated the fixing by a third person of the value of property or the amount of the damages suffered by a breach of the contract, without regard to whether the parties might differ on the question, would constitute an agreement to arbitrate. For example, if the parties to a lease should stipulate] as has often happened, that at the end of a given period the future rental should be a certain per cent of the value of the leasehold, to bo determined by some one else. [Holmes v. Shepard, 49 Mo. 600; Sholz v. Mills, 176 Mo. App. 352.] The policy we are dealing with looked to an appraisement only in the contingency of a controversy arising between the parties over the amount of a. loss, thus carrying into their stipulation one essential element of an arbitration.

But there have been many cases in which the courts held there was not an agreement to arbitrate, although, as in this ease, the stipulation for an appraisal was to come into play only in case the parties disagreed about values or the amount of a loss. [Paint Co. v. Aetna Ins. Co., 165 Mo. App. 30; Harmon v. Ins. Co., 170 Mo. App. 309; Non-Royalty Shoe Co. v. Phoenix Assurance Co., 178 S. W. 246, 210 S. W. 37.]

It has been held, too, that an appraisal of values or losses does not amount to an arbitration, because it leaves the. question of ultimate liability under the contract open, and therefore does not oust the jurisdiction of the court. [Methodist Episcopal Church v. Seitz, 74 Cal. 287, 291; Guild v. Railroad Co., 57 Kan. 70; Hamilton v. Ins. Co., 136 U. S. 242, 255.] But when the only dispute about a party’s liability is as to the amount he ought to pay, which was the fact in the Spresent case, an agreement to determine it by appraisers, if enforced, does operate to take away from the courts the decision of a controversy; and the distinction last mentioned is not valid in such a case, and the validity of the agreement will depend on whether the rule' of public policy which renders an agreement to arbitrate not binding, ought to be extended to one for an appraisal of an amount in dispute.

Again it has been held an appraisal was not an arbitration or an agreement for an appraisal equivalent to an agreement to arbitrate, because the appraisers appointed by the respective parties were their agents instead of impartial judges; but. that would not often be true. [Bottomly v. Ambler, 38 L. T. (N. S.)

The two proceedings have been distinguished by the fact that an appraisal settles a subsidiary and incidental matter and not the main controversy. [Black v. Rogers, 75 Mo. 441, 449; Noble v. Grandin, 125 Mich. 383; Garr v. Gomez, 9 Wend. 649.] But in the case under examination the amount of the loss is the substance of the controversy between the parties and not a subsidiary or incidental matter.

In our opinion the fundamental difference between the two proceedings lies in the procedure to be followed, and the effect of the findings. [Sebree v. Board of Education, 254 Ill. 438, 453.] An agreement to arbitrate is really an agreement between parties who are in a controversy, or look forward to the possibility of being in one, to substitute a tribunal other than the courts of the land to determine their rights. [Bennett’s Admr. v. Russell, 34 Mo. 524, 528 ; Green Ry. Co. v. Moore, 64 Pa. 79; Gordon v. United States, 7 Wall. 188; Boyden v. Lamb, 152 Mass. 416.] Arbitrators, like a judicial tribunal, must give notice to the parties of the time and place of the hearing of the controversy, and must listen to and decide upon the evidence offered by the parties; and the original cause of action becomes merged in the award, which may be declared upon at common law as a new demand, or, under our statute. judgment may be entered upon it by the court designated. [1 Bouvier’s Law Dict. (Rawles, 3 Rev.) p. 235; Morse on Arbitration and Award, p. 490; Sadler v. Olmstead, 79 Iowa, 121; Averill v. Buckingham, 36 Conn. 359; R. S. 1909, sec. 875.] In the case of a simple appraisal of values or the amount of a loss, the appraisers, if they wish, 'may hear what others have to say on the question they are to determine but unless the reference so provides, they are not bound to take testimony and may decide from their own knowledge or opinion. [James v. Schroeder, 61 Mich. 28; Royal Ins. Co. v. Ries, 80 Ohio St. 272; Palmer v. Clark, 106 Mass. 389.] Neither does their award create a new cause of action, but the liability of one party to the other is still upon the contract. [Brink v. New Amsterdam Fire Ins. Co., 5 Robertson (N. Y.) 104, 123.]

These differences have been pointed out and acted upon in litigation of different kinds, perhaps more frequently in actions on insurance policies than in any other class of cases. We have cited above several Missouri decisions given upon' the difference between an arbitration and an appraisal of loss, and cite the following similar cases from other jurisdictions, some of which determine the effect of a stipulation identical with the one before us: American Steel Co. v. Ins. Co., 187 Fed. 730; Fleming v. Phoenix Assur. Co., 75 Hun, 530, 27 N. Y. Supp. 488; Royal Ins. Co. v. Ries, 80 Ohio St. 272; Brink v. Ins. Co., 5 Robertson (N. Y.) l. c. 109; Morgan v. Ins. Co., 64 N. Y. Supp. 873; Hamilton v. Ins. Co., 136 U. S. 242.

Nowhere has the distinction been more recognized and acted upon than in this State from an early day. [Zallee v. Ins. Co., 44 Mo. 530.] In the cited case, which is a leading one in the country, the insurance company and the person insured disagreed about the amount of a loss under a policy, and pursuant to its provisions agreed in writing on a board of appraisers to determine the amount, but the plaintiff ignored the award or estimate of the board and filed an action. His contention was the valuation was void because the appraisers were not sworn, as they must have been if there was an arbitration. This court held the submission was not to an arbitration, but to an appraisal, which was something less. The. opinion commented on the fact that the award of the appraisers would not of itself afford a cause of action in court, but would leave the prior cause intact, and would be only proof at a trial of the amount of the damages done by the fire. Stress was laid, too, on the circumstance that there was no controversy between the parties when the agreement in the policy for an appraisement was made. The court held the persons to whom the amount of the loss was referred acted as appraisers, and not as arbitrators; that the reference to them was not a submission to arbitration in the legal sense, but a just and reasonable mode of fixing values— the values of the damaged goods before and after the fire, the difference representing the amount of loss. The court referred to the cases of Garred v. Macey and Curry v. Lackey, supra, and said they clearly distinguished between the “submission for arbitration for the purposes of an appraisal and the submission to arbitration for the purpose of settling and extinguishing causes of action. Only the latter are technically and strictly arbitrations.” The decision in the Zallee case has been accepted as sound and followed by the courts of this State to this day, as the cases we have cited show.

In Harmon v. Ins. Co., Ellison, J., pointed out the radical differences between an appraisal and an arbitration, namely: appraisers may act on their own judgment without a hearing, whereas arbitrators must act upon testimony; and the award of the. latter extin,guishes the original cause of action and becomes a new cause, whereas, an appraisal leaves the right of action on the contract unimpaired. Similar views were expressed by the courts of most of the States of the Hnion and by the Supreme Court of the United States in the cases cited supra. The same distinction has been drawn in litigation involving a controversy identical in principle with, the one at bar, hut over contracts not relating’ to insurance. [Holmes v. Shepard, 49 Mo. 600; Sholz v. Mills, 176 Mo. App. 352; Railway v. Moore, 64 Pa. l. c. 91; Sebree v. Board of Education, 254 Ill. 438; Willingham v. Veal, 74 Ga. 755; Bierly v. Williams, 5 Leigh (Va.) 700; Wurster v. Armfield, 175 N. Y. 256; Thompson v. Newman, 171 Pac. 982; The Glencairn, 78 Fed. 379; Omaha Water Co. v. City of Omaha, 147 Fed. 1.] The English courts have recognized the distinction; and, in fact, the weight of authority is heavy in favor of the proposition that an agreement to submit to appraisers the amount of a loss or the value of property, even if the parties have disagreed about the matter, does not provide for an arbitration. We consider the principle on which the decisions are founded sound, for the method by which the conclusion of appraisers may be reached and the' procedure which arbitrators must follow make the two proceedings unlike both in form and effect.

This case calls for a decision of the point according to the intention of the parties, and the policy, when interpreted according to the natural and legal import of its terms, suggests no intention to submit, the determination of the amount of a loss, should one occur, to either a common-law or a statutory arbitration. Manifestly the latter form was not contemplated, for none of the details of procedure presented by the statutes on the subject are required to be observed; for example, a submission in writing, or agreement that some court may enter judgment on the award, or that the arbitrators shall be sworn, etc. [See R. S. 1909, Chap. 7.]

Neither are the terms of the policy suggestive of a common-law submission. Notice to the parties of a hearing is not provided for, or the taking of testimony, or that the award shall extinguish liability in the policy; and plainly this liability was -to continue. That the appraisers were free to act on their own opinion without the help of evidence, appears from the provision that the umpire was to decide only when the appraisers disagreed. If witnesses were to be heard, then, by this arrangement, they would be heard first by the two*appraisers, and if they did not concur, by the umpire; a plan so complicated that it is unreasonable to suppose the parties to the contract meant to prescribe it. All the details of the scheme indicate that nothing more was intended than'what the words used denoted, namely: an estimate according to the opinion of two appraisers, and of an umpire if they differed, an opinion reached either from a personal examination alone or an examination plus other evidence as they might prefer.

The parties stipulated for an appraisal in the event of a fire and their inability to concur as to the amount of the loss, and so stipulated for two reasons: first, to have the amount ascertained in that mode and thereby dispense with other evidence on the question if there should be a law suit; a way preferred by them and apparently simple and easy to use; second, the company was accorded-the option to take all or any part of the damaged articles at their values when sound, as fixed by tlie appraisers. This proviso was an integral part of the policy and must be considered part of the consideration for which the company entered into it.

II. What has been said makes clear, we think, the distinction between' a stipulation for an appraisal and an agreement to arbitrate, but it does not answer fully the question of whether the statute which undertakes to annul any clause or provision in a contract for “au adjustment by arbitration” applies to the stipulation in the present case. We say “annul,” because the effect of the statute is to allow’ a party to a contract with such a clause in it, to sue on the contract and maintain the action without complying wfith the condition. It is to be observed that this statute is not leveled at contracts of insurance only, but at 'all contracts containing the forbidden stipulation. It is wide-ranging, for there are many agreements of the kind in the world of business which relate to other matters than insurance.

The argument that a particular interpretation of a statute, will -work inconvenience, is not forcible, but maybe accorded some influence when the meaning of a law is uncertain, for presumably the Legislature intended to remedy instead of entail mischief. In a case like the present one, an eminent judge (Lord Campbell) declared concerning a contract for the appraisal, or “arbitration” as the policy said, of the loss under a policy of marine insurance, that instead of the plan being contrary to public policy, “it would be a most inexpedient encroachment upon the liberty of the subject if he were not allowed to enter into such a contract.” And the House of Lords, after much consideration of the question, decided such an agreement was not one for an arbitration in the proper sense. [Scott v. Avery, 5 H. L. Cases, *pp. 811, 851.]

The Supreme Court of California said that to apply the rules regulating arbitrations to all the contracts in which parties regulate their actions by the determination of third persons, would “interfere with the ordinary transactions of mankind and put unnecessary clog's upon business.” [M. E. Church v. Seitz, 74 Cal. l. c. 292.]

But the principal rule of interpretation to be applied to the act in question, is prescribed by-our statutes, to-wit: “Technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import;” that is to sav, in getting at the intention of the Legislature in enacting a law which contains a technical expression, we must presume the expression was used in its technical sense, unless there is something, in the context to indicate that it was not. [R. S. 1909, sec. 8057.] In truth, the statute that technical terms “shall be understood in their technical import,” on-its face is mandatory; but it has been held to mean, and rightly so, that the context of the word may be regarded, and if it shows another than a technical sense was intended, the other meaning will be adopted. [Ex parte Bethurum, 66 Mo. 545, 548; State v. Delay, 93 Mo. 98.] If the word "arbitration” was used in the statute in its legal sense and as a term or art, then beyond a doubt, the stipulation for an appraisement was not one for an arbitration, and so was not affected by the statute.

Is there- anything in the statute which requires us to accept, other than the legal meaning of the word “arbitration?” For the plaintiff the argument is that the phrase“adjustment by arbitration,” shows another meaning was.intended. The word “adjustment” is not a technical term. It means to fit, arrange, settle, equalize; and perhaps has other meanings according to the subject-matter where it is used. We are most familiar with the use of the word in connection with claims for insurance, but there are various other adjustments; for example, the values of leaseholds, of property to be sold at another person’s valuation, etc. [Curry v. Lackey, 35 Mo. 389.] That the Legislature did not have in mind in enacting this statute only the adjustments of losses under polices of insurance, is manifest from the fact that it applies to all kinds of contracts. Moreover as provided in the Session Laws it has this line of clear meaning: “Section 1. Contract to arbitrate not to preclude filing of suit.” As the difference between an agreement for an arbitration and an agreement for an appraisement had been recognized by the courts of this State many years prior to the enactment of the section in question, we must presume the distinction was known to the members of the Legislature and that they passed the law with it in mind. If they had meant the statute to relate to contracts stipulating for appraisements, it is probable they would have said “adjustment by arbitration or appraisement,” instead of saying “adjustment by arbitration.” We find nothing in the wording of the act which shows an intention to employ the word “arbitration” in any other meaning that its legal one, and feel constrained to give it the latter meaning.

In a former opinion of this court where the statute was discussed, but in an obiter way because the policy therein involved was issued prior to its enactment, it was remarked that the purpose of the Legislature was to strike at contracts like the one before us. The opinion called attention to the fact that Section 899 of the chapter on contracts provided that all parties to a contract which directly or indirectly tended to limit the time in which an action might be instituted, should be null and void (R. S. 1899, sec. 899); and that, the statute in hand was designated by the Legislature as Section 899a and naturally, in the compilation of the Revised Statutes, would have followed Section 899. It was argued that the two sections construed together indicated a purpose on the part of the Legislature to render void provisions to enforce “arbitration or settlement by means of appraisers under insurance policies. ’ ’ [Young v. Ins. Co., 269 Mo. 1.] One of those sections was intended to annul clauses in contracts limiting the time for actions on them and to make the general limitation period, fixed by statute, control. The other section (899a) was intended to annul clauses making “adjustment by arbitration” a condition precedent to the right to bring and maintain an action. The two sections were enacted for different purposes and are unrelated except that both affect actions on contracts.

The legislative purpose in passing the law under examination is not to be conjectured, but must be ascertained from the act itself. The agreements the legislators meant to strike at must be determined from what they said, and not surmised, as a probable intention. This court has declared: “It is our duty merely to interpret it (a statute) exactly as . made by the legislative department—we cannot properly add to it a meaning not intended by its terms.” [Henry & Coatsworth Co. v. Evans, 97 Mo. l. c. 55.] The application of this rule is striking in what is called a casus omissus. The court may feel sure the Legislature meant to include something which by oversight was omitted, yet cannot supply it. [Kehr v. Columbia, 136 Mo. App. l. c. 329: Smith v. State, 66 Md. 215; Woodbury v. Berry, 18 Ohio, 456.] In the Maryland case it was said that even when a court is convinced the Legislature really meant and intended something not expressed by the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of language. If the statute we are considering was meant to embrace an appraisement within its effect, then apt words for that purpose were not employed, and an amendment is needed. In Young v. Ins. Co. the court had no occasion to examine critically the authorities dealing with the distinction between appraisement and arbitration, or their bearing upon the interpretation of the statute under review.

At common law parties have the right to have losses and values affecting liability under a contract appraised by third persons selected by them. It is a right which tends to prevent litigation, and a statute asserted to be in derogation of it should be construed strictly. As the language of the act before us naturally denotes an arbitration in the legal sense, it seems sound to confine its effect to that kind of a proceeding.

Judgment is reversed and the cause remanded.

Walker, C. J., Blair and Williamson, JJ., concur; Graves, J., dissents in separate opinion, in which Woodson, J., concurs; Williams, J., not sitting.

GRAVES, J.

(dissenting).—I dissent in this case for the reason that I do not believe that the Legislature ever intended by the Act of 1909, now Section 868, Revised Statutes 1909, to refer to arbitration in the sense that it is used at the common law or in our statutory law upon arbitration. I tried to point out this in Young v. Insurance Co., 269 Mo. l. c. 14 et seq. It was never enacted as. a part of our law upon arbitratio'n, as pointed out in that case. The statute used the term “an adjustment by arbitration,” and not the word “arbitration” alone. As I read this statute, taking its connection when passed, the legislative intent' was to strike at just such provisions as “we have before us in the instant contract. Adjustment by arbitration, in the legislative mind, was adjustment by appraisal, or any other means which hampered the right to go into a court of justice. The legislative purpose was to give the party to jnst such contracts as we have before us, the right to sue, irrespective of the fact that somewhere, hidden in a labyrinth of finely printed provisions, there might be one calling, for an appraisal. The insured rarely reads or knows what these finely printed provisions of his contract are, and this statute, as well as others which we have, were intended to prevent his acceptance of such a policy from precluding his unfettered right to go to a court of justice.

It may.be that what was said in Young’s case, supra, was not absolutely necessary for a decision of that case, but it was written upon the point being specifically made in the brief, as appears from the opinion. But, whether it be obiter or not, in my judgment it declares the correct legislative intent of the statute discussed. For this reason I dissent.

Woodson, J., concurs in these views.


source: Caselaw Access Project

author: GOODE, J.

license: Public Domain

text:
    Ex parte JOSEPH OPLE v. GOERGE P. WEINBRENNER, Sheriff. Ex parte EARL MILLER v. GEORGE WEINBRENNER, Sheriff. Ex parte LEO CLYNE v. GEORGE P. WEINBRENNER, Sheriff.
    In Banc,
    December 13, 1920.
    1. EXTRADITION: Indictment or Affidavit Necessary. The Federal statutes relating to tbe extradition of persons from one state to another to • be tried for crime require an indictment or affidavit charging the party to be extradited with a criminal offense in the demanding state, the indictment or affidavit to be sufficient to charge such an offense under.the law of that state, and made before a magistrate thereof, and certified to be authentic by its governor; and such indictment or affidavit is indispensable to the issuance of a warrant for the arrest of the accused by the Governor of Missouri.

      2. -: -: Sufficient Showing. Copies of the verified complaints against petitioners accusing them of the murder of a named person in another state, accompanied by the requisitions of the governor of that state for their extradition, and additional affidavits, that the accused are in a certain county in Missouri and fugitives from the justice of the demanding state, are proof, prima-facie, of those facts, and suffice as evidence on which the Governor of Missouri can find the accused are fugitives and honor the requisition of the governor of the demanding state, and, standing alone, are sufficient to prevent the discharge of the accused upon habeas corpus.

    2. -: Habeas Corpus: Beturn of Officer: Fugitives: Allegations. It is not the duty of the officer who has arrested the petitioners for a writ of habeas corpus and holds them in custody under the authority of the warrants issued by the Governor of Missouri, to allege in his return to the writ either the fact that petitioners are fugitives from the demanding state or the good faith of any of the proceedings, but it is enough for him to set forth facts to show the authority by which he acted; and if his return and the accompanying affidavits and requisition are regular and adequate in law the petitioners will not be discharged, although allegations by them that they were, not in the demanding state when the homicide was committed, and that they did not leave said state, and that the proceedings against them there and the requisitions for their return were taken for an unlawful purpose, are not denied by said officer in his return.
    4. -: -: Fair Trial: Unlawful Conspiracy: Danger from Mobs: Proof. Allegations by petitioners for a writ of habeas corpus that they have incurred the enmity of a large percentage of the people of the county in the state demanding their extradition, by their participation in industrial controversies in said county, and will be in danger of death or bodily injury at the bands of mobs if taken there, were not proven at the hearing-before the Governor in this case, and even if proven they would not justify the courts of this state in ordering their discharge, charged, as they are, with murder in said state. The duty to protect them from violence and to secure them a fair trial rests upon the state demanding their return, and it will be presumed that the duty will be performed.
    5. --: -: Fugitive: Eight to Hearing: Character of Proof. An accused person in this state, for whom a requisition for his return to another state has been made by its governor, accompanied by an indictment or affidavit charging him with having committed a crime in said state and with being a fugitive „ from the justice thereof, and who has been arrested 'on the warrant of the Governor of Missouri, is entitled to a hearing in a habeas corpus proceeding on the question whether he is a fugitive from the justice of said state, the inquiry being limited to the question whether he was in the state where the crime occurred at the time it occurred. But in order to overcome the prima-facie case made by the regular extradition documents and to require th,e court to order him to be discharged, the proof that he was not in the state demanding him at the time the crime was committed there must be clear and satisfactory; and where there is substantial testimony that the petitioner was present at the scene of the crime and participated in it, the writ will be denied.

      Habeas Corpus.

    Writ denied.

      Mat. J. Holland and Charles A. Houts for petitioners.
    (1) The power to return a person from one state to another in which he stands charged with a crime arises solely from See. 2, Art. IV, Constitution of the United States. This power can be exercised only when such person shall (a) “be charged in any state with treason, felony or other crime, ” and (b) “shall flee from justice and be found in another state. ” So to effectuate the constitutional provision referred to, Congress has enacted Section 5278, Revised Statutes of United States. Prom the language of the constitutional provision and the said statute, it has been deduced that a person charged with crime can only be extradited if, in fact, he has fled from the state where he stands charged with crime. McNichols v. Pease, 207 U. S. 100; Hyatt v. Corkran, 188 U. S. 691. Section 5278 does not undertake to invest the governor of the asylum state with judicial power to decide whether or not a person charged, is, in fact, a fugitive when that fact is put in issue. Congress could not, if it tried, delegate judicial powers to a purely executive officer. As no other procedure has been provided for determining whether or not one, against whom a requisition has been issued, is, 'in fact, a fugitive from justice, it has been held that the courts, through habeas corpus, may take jurisdiction and determine that question when properly put in issue. McNichols y. Pease, 207 U. S. 100. . The governor of the asylum state is not required to grant the accused a hearing. Ex parte Pelinsld, 213 S. W. (Mo.) 809. But even if the governor of the asylum state does have ■ a hearing and conflictng testimony is produced upon the question, whether or not the accused is a fugitive, nevertheless, the accused, upon habeas corpus, is entitled to have the judgment of a court upon that question. McNichols v. Pease, 207 U. S. 100; People ex rel. v. McLaughlin, 145 App. Div. (N. Y.) 513.. (2) The replies of the petitioners in these cases charged that the processes of the law have been invoked in these cases, not for the purpose of punishing, crime, but for the improper and immoral purpose of placing the petitioners within the power of persons whose enmity they have incurred, of subjecting them to danger of personal violence at the hands of their enemies, and to satisfy the desire for revenge entertained by their enemies. The courts will not allow the laws to be thus prostituted. ' Ex parte 40 Ohio St. 130. (3) Upon the record the allegations Slauson, 73 Fed. 666; Tenn. v. Jackson, 36 Fed. 258; In re Frank Cannon, 47 Mich. 481; Compton v. Wilder, of the petitioners, (a) that they were not fugitives from Illinois; and (b) that the prosecutions against them in Illinois and the requisition proceedings were instituted for unlawful purposes; stand undenied upon the record. (4) For the purpose of this case, therefore, unless proof is to be taken, it must be assumed that the petitioners were not in the State of Illinois at the time the offense charged against them was committed; that they did not flee from Illinois; and that the prosecutions and the requisition proceedings have been instituted in bad faith. In this situation, under the authorities above referred to, they are entitled to be discharged.

      Alphonso Howe for respondent.
   GOODE, J.

These three cases are original proceedings in this court, begun to obtain the discharge by writs of habeas corpus of the petitioners from the custody of the respondent Weinbrenner, Sheriff of the City of St. Louis, by whom the petitioners were alleged to be unlawfully restrained of their liberty and imprisoned.

The petitions for the writs were filed July 13, 1920. They state in substance that the respondent holds the respective petitioners in custody in order that they may be transported to Madison County, Illinois, by virtue of warrants issued July 7th, by Honorable Wallace Crossley, at that time Acting Governor of .the State of Missouri, which warrants recited that the Governor of Illinois had demanded of the Governor of this State said Joseph Ople, Earl Miller and Leo Clyne as fugitives from the justice of the State of Illinois, and had produced to said Wallace Crossley, Acting Governor of Missouri, complaints and affidavits, certified to be authentic, and charging said fugitives with having committed the crime of murder. Wherefore, said Wallace Crossley, Acting Governor of the State of Missouri, commanded the sheriff or marshals of .any county of this State to arrest the accused persons and deliver them to Julius C. Blake, agent of the State of Illinois to receive them; also commanded all sheriffs, marshals, constables and police officers to whom -the 'warrants might be shown to assist in the execution of them and to make return on the warrants of their proceedings thereunder. The warrants were duly signed by the Acting Governor and sealed with the great seal of this State, attested by John L. Sullivan, Secretary of State.

- The arrest of the prisoners under the executive warrants and their detention are alleged in the proceedings for the writs of habeas corpus to be illegal for several reasons, but the only ones relied on and argued for the petitioners are that they .were not in the State of Illinois on the 20th day of May, 1920, the date alleged as the date of the commission of the crime of which they are charged, that they are not fugitives from said State of Illinois, and that the criminal proceedings against them were instituted pursuant to a malicious conspiracy and for an unlawful purpose.

The requisitions issued by the Governor of Illinois on the Governor of Missouri, and the petitions of J. P. Streuher, the State’s Attorney of said Madison County, on which those requisitions were based, together with copies of the verified complaints wherein the petitioners were charged with the crime of murder were sufficient in form and substance to justify the Governor, or Acting Governor, of this State, to issue warrants for the arrest of the petitioners and their delivery to the agent or messenger of Illinois appointed to receive them.

The complaints against them were made, one by William O. Cline and one- by William P. Martin, both the affiants being of the County of Madison, State of Ulinois, and both purporting to prosecute in the name and by the authority of the people of said state; and they were made before J. B. Dale, a justice of the peace of said county, and were to the effect that the petitioners on the 20th day of May, 1920, in said County of Madison, willfully, feloniously and with malice aforethought killed and. murdered Clarence W. Turner by shooting him. The complaints are in all particulars sufficient to charge the petitioners with the crime of murder in the first degree in killing said Turner in said County of Madison on the date alleged, and were verified by the oaths of the respective affiants.

The petitions, verified by the affidavit, of J. P. Streuher, which accompanied the requisitions from the Governor of Illinois, set forth that Ople, Miller and Clyne stood charged with the crime of murder committed in said County of Madison on said 20th day of May, as shown by the attached copies of the complaints against them; that they had fled from the State of Illinois and were now, as affiant believed, in St. Louis, Missouri, fugitives from the justice of the State of Illinois. The petitions of Streuber prayed that requisitions for the accused might be issued by the Governor of Illinois to the Governor of Missouri; and that Julius C. Blake of the said County of Madison might be appointed by the Governor of Illinois to go after and return said fugitives to the said County of Madison of the State of Illinois for trial.

The various documents before us are in duplicate, that is to say, the proceedings to procure the extradition of Ople were against him alone, but the proceedings against Miller and Clyne were against them jointly, and in each of the two proceedings the documents are identical except as to the names of the parties and the complaining affiants.

In the returns to our writs of habeas corpus, the respondent, Weinbrenner, after saying the three petitioners had been arrested on June 25, 1920, and taken into custody by him by virtue of warrants issued by Division No. 2 of the Court of Criminal Correction of said city of St. Louis, pursuant to an affidavit made in said court, charging the petitioners with the aforesaid murder of Turner, and with having afterwards fled from Illinois, go on to say that while the petitioners were still in such custody, the Govennor of Missouri, on July 7, 1920, issued warrants commanding any sheriF or marshal of the State of Missouri to arrest said prisoners and deliver them to Julius C. Blake, the agent of the State of Illinois to receive them. Copies of said warrants of the Acting Governor of Missouri are attached to the returns.

Respondent further returned that pursuant to said orders of said Division No. 2 of the Court of Criminal Correction of St. Louis, the petitioners were turned over to the jailer of St. Louis to be. held in custody subject to the orders of the said court; and that the petitioners were in the custody of the jailer when the writs of habeas corpus were served on the respondent.

By way of reply to the returns, the petitioners asserted that although they were in the jail of the City of St. Louis -when the writs of habeas corpus were issued, yet, nevertheless, they were in the custody of the respondent as sheriff of said city, and were held by him for delivery to the aforesaid agent of Illinois under the warrants of the Acting Governor of this State. The reply then repeats the several grounds asserted to make the arrest and detention of the petitioners unlawful, and to entitle them to their discharge, which were alleged in the petitions for our writs. An additional averment in the reply is that the requisitions of the Governor of Illinois and the documents which accompanied them and upon which the Acting Governor of Missouri issued his executive warrants, failed to show that any prosecution for the crime of murder was pending against the petitioners, or either of'them, in the State of Illinois, and further that no evidence of the pendency of such a prosecution was presented either to the Governor of Illinois, or the Governor, or Acting Governor, of Missouri; further that the requisition proceedings to have the petitioners returned to the State of Illinois were undertaken pursuant to a fraudulent conspiracy of the complaining affiants, Cline and Martin, and others, in order that physical violence might be inflicted on the petitioners when they are taken back to said Madison County, Illinois, and in order that by false and perjured testimony, and by means of biased juries, petitioners may be convicted, ostensibly of the crime with which they are charged, but actually to satisfy the malice of said conspirators.

Before granting warrants for the arrest of the petitioners, the. Acting Governor gave them a hearing, at which a considerable volume of testimony was taken, which has been filed here, but without a stipulation that we are to treat it as evidence in these eases. This testimony proved Clarence Turner was killed during the evening of May 20, 1920, between eight-thirty and nine o’clock, and while standing on Washington Avenue, Granite City, Madison County, Illinois, about fifty feet from the corner of Twenty-third Street. He was killed by shots fired from two automobiles running close together, which turned the corner out of Twenty-third Street into Washington Avenue, and continued along the latter street. A. crowd had assembled at and near the corner in consequence of a strike of the employees of a chemical-and-coke factory in Granite City. The testimony goes to show the men in said two automobiles fired from fifteen to twenty shots at the people on the sidewalk as the cars passed, killing Turner and wounding a man named William A. Cline, who is not to be confused with the petitioner, Leo Clyne. Some pickets of the striking employees were stationed about the corner, and would occasionally stop an automobile in the street, but as to whether Turner and William A. Cline were of the picketing force there is no testimony, Positive testimony was given that Ople was in one of the automobiles from which the firing was done, and was driving it. Positive testimony was given, too, that Earl Miller and Leo Clyne fired some shots, but there was testimony equally positive that neither of the petitioners was in Granite City, or in Illinois, when the homicide occurred, and'that all of them were in St. Louis, Missouri, at the time.

I. If these cases are to be disposed of without noticing the evidence taken at the hearing accorded by the Acting Governor, no reason has been shown for the -discharge of the prisoners; but on the contrary they appear to be lawfully in custody. As we have stated, copies of the verified complaints against them accusing them of the murder of Turner, accompanied the requisitions of the Governor of Illinois for their extradition. Such an affidavit, or in lieu of it an indictment, to show the accused were charged with a crime in Illinois, was indispensable to the issuance of a warrant for their arrest by the Governor, or the Acting Governor, of Missouri. The Federal statutes relating to the extradition of persons from one state to another to be tried for crime require an indictment or an affidavit charging the party to be extradited with a criminal offense in the demanding state, the indictment or affidavit to be sufficient to charge such an offense under the law of that state, and made before a magistrate thereof, and certified to be authentic by its governor or chief magistrate. [U. S. Rev. St. sec. 5278; Ex parte Reggel, 114 U. S. 642; Roberts v. Reilly, 116 U. S. 80; Compton v. Alabama, 214 U. S. 1, 6.] Additional affidavits that the accused were in St. Louis, (Missouri, and fugitives from the justice of the State of Illinois, were among the requisition papers, and said affidavits were proof, prima-facie, of those facts and sufficed as evidence on which the Governor of this State could find the petitioners were, fugitives as asserted, and honor the requisitions of the Governor of Illinois. That proposition was affirmed by the Supreme Court of the United States in a proceeding where the only proof of the withdrawal after the crime had been committed of the accused from the state demanding his return, was an affidavit to that effect in form and substance like the affidavits to the same effect in the proceedings at bar. [Ex parte Reggel, 114 U. S. 643, 651, et seq.]

For the petitioners it is said their averments or allegations that they were not in Illinois when Turner was killed, and did not leave said state afterwards, and that the criminal proceedings against them there and the requisitions for their return to said state were taken for an unlawful purpose, stand undenied. We dnswer that it was no duty of the respondent as the officer who had arrested the petitioners and held them in custody under the authority of the warrants issued by the Acting Governor of Missouri, to allege in his returns to our writs of habeas corpus either the fact that petitioners were fugitives from Illinois or the good faith of any of the proceedings in question. It was enough for him to set forth facts to show the authority by which he acted, and whether Ms authority was sufficient is a question of law for us to determine. The returns made by him, together with the requisitions of the Governor of Illinois for the extradition of the petitioners, and the affidavits upon which those requisitions were based, are before us, and' we find them to be regular and adequate in all respects and must hold they establish the legality of the arrest and detention of the prisoners and of the order for their extradition—a conclusion only to be removed by evidence of the degree of cogency to be hereafter stated that the prisoners were not in Illinois at the time Turner was killed. [Roberts v. Reilly, 116 U. S. 80.]

II. .If the testimony given at the Executive hearing is to be considered in passing upon the question of the right of the petitioners to be discharged, we are equally clear they ought not to be, and that, instead, .the command of the warrants of the Acting Governor of Missouri should be executed. It was not proved, nor was there evidence tending to prove, the prosecutions instituted against the petitioners in Madison County, Illinois, were the outcome of a conspiracy, or that the requisitions were procured to have the prisoners returned to Illinois for the purpose of subjecting them to mob violence or conviction by perjured testimony and an unfair jury. The petitioners say they have incurred the enmity of a large percentage of the people of Madison County, Illinois, by their participation in the industrial controversies of that county, and will be in dang'er. of death' or bodily injury if taken there, and to surrender them to the authority of Illinois will be in violation of the Federal Constitution, by depriving them of the equal protection of the law. Evidence was not adduced to prove the existence of the danger alleged, and if it were proved it would not justify this court in ordering the outright release of these prisoners, charged, as they are, with the crime of murder. The duty to protect them from violence and secure to them a fair trial rests upon the officials of the State of Illinois, and we presume it will be performed. The Supreme Court of the United States said in a noted ease that “except in an emergency demanding’ prompt action, the party held in custody by a-state, charged with crime against its laws, will be left to stand his trial in the state court, which, it will be assumed, will enforce, as it has the power to do equally with a Federal court, any right asserted under and secured by the supreme law of the land;” further said that it was improper for the courts to inquire into the motives guiding the acts of the governors of the demanding and surrendering states. [Pettibone v. Nichols, 203 U. S. 192.]

III. The chief contention of the petitioners is that they are entitled to the judgment of this court in the present proceeding on the question of fact as to whether or no they are fugitives from the justice of Illinois. It is true the Supreme Court of the United States, whose authority is controlling cageg ]j]je those before us, since the construction of the Federal Constitution and Federal Statutes is involved, has decided there may be a judicial inquiry on an application for the writ of habeas corpus, when a prisoner has been arrested for extradition, as to whether he was in fact a fugitive from the state demanding him; an inquiry, the answer to which usually, and perhaps in every case, has turned on the further inquiry of whether the accused was in the state where the crime occurred at the time it. occurred. This ruling is an interpretation of the act of Congress to enforce the constitutional provision for the return by the respective states of fugitive criminals within their borders. The act is so worded as to provide only for the return to a state of a person who has fled from its justice ; language which has been held to mean the accused must have been in the state at the time when the crime was committed and to have left it afterwards; hence,, that he was there and has gone into another state is a condition precedent to his extradition. This was decided in a recent case wherein several other propositions of law were declared which hear on the procedure for returning a fugitive by a state where he has taken refuge, to one where he is charged with the commission of crime. [McNichols v. Pease, 207 U. S. 100.] The point of difficulty is not regarding the right of the accused to á heariiig in a habeas corpus proceeding on the issue of whether he has fled from the justice of the requisitioning state. The doubt is regarding what degree of proof that the accused is not a fugitive as alleged, suffices to overcome the prima-facie case made by regular extradition documents and to require the court to order him to be discharged from custody, thereby defeating the demand for the extradition. In the present case it is contended for the petitioners that we should weigh the evidence, and if, in our opinion, it preponderates in any degree in favor of the finding- that the petitioners were in Missouri and not in Illinois at the time Turner was killed, they should be discharged, a proposition said to be supported by the case of People ex rel. v. McLaughlin, 145 App. Dec. (N. Y.) 513. The question has been before the Supreme Court of the United States several times, and so presented that a rule of general application could have been prescribed had the court thought proper to do so, but none has been prescribed in a precise form. In interpreting the section of the Revised Statutes of the United States (Sec. 1014), which provides for the removal of an alleged offender who lias been committed for trial in a Federal district other than where the charge against him is to be tried, to the latter venue, the said Supreme Court has adopted the criterion of “probable cause” as the one by which to determine in a habeas corpus proceeding whether the prisoner shall be released or removed. [Tinsley v. Treat, 205 U. S. 201.] But the same measure of proof has not been adopted, at least not explicitly, in cases of interstate extradition. In all the opinions on the subject rendered by that court which we have read, except one, the prisoners were remanded into custody, and in the one where the prisoner was discharged, he was admitted to have been out of the state of the crime when it was perpetrated. [Hyatt v. Corkran, 188 U. S, 691.] In McNichols v. Pease, 207 U. S. 109, 112, the evidence showed the accused was in another state during a portion of the day when the crime occurred, but failed to show he was away from the state of the offense during that entire day, and the distance between the place where he was shown to be a portion of the time and the scene of the crime could be covered by rail in an hour and a half. The petitioner was refused a discharge. After saying it was incumbent upon the petitioner to overcome the presumption arising from the face of an extradition warrant that he was a fugitive from justice for a crime committed in Wisconsin, the court said a prisoner thus held in custody should not be discharged “unless it is made dearly and satisfactorily to appear that he is not a fugitive,” etc. (Our italics). See, too, Appleyard v. Massachusetts, 203 U. S. 222.

In the earlier case of Ex parte Reggel, 114 U. S. 653, the court said the prisoner should not be released “merely because, in the judgment of the court, the evidence as to his being- a fugitive from justice was not as full as might properly have been required; or because it was so meagre, as, perhaps, to admit of a conclusion different from that reached by him” (i. e. the governor who ordered the extradition).

In Munsey v. Clough, 196 U. S. 364, 374, the court said, in substance, that when it was conceded, or proved beyond question, the person was not in the demanding state when the offense was committed, and his return was demanded by reason of a merely constructive presence there, he would be discharged; but he would not be when arrested on a governor’s warrant and there was contradictory evidence as to his presence or absence.

We have before us the testimony of two or more witnesses that the plaintiffs were present at the scene of the crime and participated in the shooting. This is substantial evidence, and though we might consider the testimony preponderated which tended to show they were in St. -Louis, Missouri, at the time, we can not affirm that the evidence meets the standard of the Supreme Court of the United States in being clear and satisfactory or so convincing, as to admit of no question. We think said court did not mean to decide that a tribunal must be governed in proceedings like these by what it may deem the weight of the evidence, when the testimony is so conflicting that fair and honest men may differ as to where the preponderance falls. The opposite doctrine would' diminish the efficacy of the extradition clause of the Constitution and of the statutes enacted to enforce it; a result to be avoided, as was said, in effect, in McNichols v. Pease, 207 U. S. l. c. 112. Our conclusion is in harmony with a prior decision of this court in Ex parte Pelinski, 213 S. W. 809.

It is ordered that the petitioners be remanded to the custody of respondent, the Sheriff of the City of St. Louis, to be dealt with by him in accordance with the warrants of the Acting Governor of this State heretofore issued.

All concur.