author: WHITE, C. PER CURIAM:

text:
    FOSTER LUMBER COMPANY v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY et al., Appellants.
    Division Two,
    April 10, 1917.
    1. INTERSTATE SHIPMENTS: Governed By U. S. Laws. Tlie liability of a common carrier upon contracts concerning interstate . shipments is governed by the Interstate Commerce Act and amendments thereto; and the construction of that act by the Federal courts is conclusive upon State courts.
    2. -: Bonus or Refund on Interstate Shipments for Increase in Business. A contract between a lumber company, about to locate large mills, and a railroad company desiring to have them located upon its lines in order that it might receive the manufactured lumber for shipment and the increase in traffic which would result from the building up of a new town, by which the railroad company agreed in consideration of the erection of the mills at a designated point on its lines, to give to the lumber company an amount equal to half of the freight charges received by the railroad on interstate shipments of machinery and materials that went into the construction of the plant, was in violation of the Interstate Commerce Act, even prior to the amendment of 1906, whether said amount to be given or paid be considered a bonus graduated on the amount of shipments done, or a refund or drawback on rates paid, or reduced rates.
    3. -: -: Other Inducements: Promotion of Public Enterprises: Device. The contention that the giving to a lumber company an amount of money equal to one half the freight charges received on all materials that went into the construction of its big mills in consideration of its location of its plant along the line of defendant’s railroad, was not a rebate or drawback in freight rates, but merely the promotion of a public enterprise which would redound to the prosperity of the railroad, namely, the aiding in building up a town which would grow in public importance, with consequent demands for increased freight and passenger transportation,’ cannot be sustained, because the Interstate Commerce Act prohibits any device or indirect method of enforcing higher charges against one shipper than another, and -has for its chief design the prevention of any discrimination among shippers that, by reason of rebates or draw-backs and the advantages derived from them, will enable large dealers to crush out or cripple smaller competitors who have no such advantages; and a bonus to a favored shipper is a discriminatory device.
    4. -: Evidence: Established Rates. A stipulation in the agreed statement of facts that the rates charged and paid by the shipper were the “regular, published tariff rates” is evidence that the rate the shipper paid was the “legally established and published rate” and sufficient in an action arising on account of a discrimination in violation of the Interstate Commerce Act, although there was no evidence that the rates were filed with the Interstate Commerce Commission and posted.
    Appeal from J ackson Circuit Court. — Hon. W. A. Thomas, Judge.
    Reversed.

      Thomas R. Morrow, Cyrus Crane, George J. Mersereau and John H. Lathrop for appellants.
    (1) The alleged agreement or arrangement by which the railway companies were to pay to the lumber company one-half of their proportion of the interstate freight charges on the shipments in question, constitutes one of the devices prohibited by the Interstate Commerce Act, and by reason thereof, the claim herein sued upon is void, illegal and unenforcihle, and plaintiff cannot, therefore, recover in this case. Intertsate Commerce Act, Act of Congress, February 4,1887 (24 Stat. L. 379), as amended by Act of March 4, 1889 (25 Stat. L. 855), and Elkins Act, Act of February 14,1903 (32 Stat. L. 847), and Hepburn Act, Act of June 29, 1906 (34 Stat. L. 584); United States v. Union Stock Yards, 226 U. S. 286; Fourche Eiver Lhr. Co. v. Bryant Lhr. Co., 230 U. S. 316; Eailroad v. Groodridge, 149 U. S. 680; Eailroad v. Interstate Commerce Comm., 200 U. S. 361; White v. United States, 167 U. S. 512; Packing Co. v. United States, '209 U. S. 56; Eailroad v. United States, 212 U. S. 481; Eailroad' v. United States, 212 U. S. 500; Eailroad v. Commission Co., 223 U. S. 573; Int. Com. Com. v. Eailroad, 225 U. S. 326; Eailroad v. Lumber Co., 174 Fed. 107; Eailroad v. United States, 162 Fed. 835. (2) Since the passage of the Interstate Commerce Act, Congress has taken complete charge of the fixing of rates and the other terms upon which persons and property may he transported in interstate commerce. It has also fixed penalties for the violation of the Interstate Commerce Act and its amendments. The construction to be given these acts is determined by the United States Supreme Court and other Federal Courts, and such decisions are binding upon all State tribunals. Donovan v. Wells Fargo, 265 Mo. 291; Ilaseltine v. Bank, 155 Mo. 74; Briggs v. Holmstrong, 72 Mo. 337; Asphalt Co. v. French, 158 Mo. 539; Eailway v. Stone Co., 154 S. W. 465.

      Halbert H. McClure and Ellison A. Neel for respondent; Hadley, Cooper, Neel & Wilson of counsel.
    (1) It is not disputed by plaintiff that a contract to receive a rebate or payment hack of part of freight charges collected from it is unlawful under the Interstate Commerce Act, hut it is contended by respondent in this case that the contract in question is no such eon-tract. (2) It is the duty of the court to leave the construction of an oral contract to the determination of the jury under appropriate instructions and where the evidence as to the intention of the parties is conflicting, it is a question for the jury. Lime Co. v. Roofing Co., 77 Mo. App. 26; Soap Works v. Sayers, 55 Mo. App. 16; Railroad v. Griffin, 126 Fed. 364; Durham v. Hastins P. Co., 67 N. Y. 632; Terra Cotta Co. v. Supply Co., 18 Fed. 332. (3) Where there is any conflict of evidence as to the intention of the parties to a contract, the court cannot declare the contract illegal as a matter of law. Railroad v. Griffin, 126 Fed. 364. (4) There is no law or statute prohibiting a railroad company from making a contract with any other corporation or party to pay a consideration in return for value received by the railroad company, even though the other party may be a shipper over the railroad, unless it be a subterfuge to pay a rebate. Lumber Co. v. Spencer, 86 Fed. 846; Rothschild v. Railroad, 15 Mo. App. 242; United States v. Milwaukee R. & T. Co., 145 Fed. 1007; Shanberg v. Railroad, 3 I. C. C. 502; Smith v. Railroad, 1 I. C. C. 611; United States v. Railroad, 152 Fed. 269; Interstate Commerce Comm. v. Railroad, 128 Fed 59; Batsell v. Railroad, 23 S. W. 552; Railroad v. Ft. Scott, 15 Kan. 435. (5) The mere fact that the freight rate was referred to in arriving at an amount to be paid by the railroad company to the lumber company for the building of the mill does not imprint the money to be paid the lumber company as a part of the freight rate money. DeWinter v. Thomas, 27 L. R. A. (N. S.) 634. (6) The contract in question was no contract with reference to railroad rates at all, but was a plain, simple contract to pay the lumber company a certain amount of money, in consideration of its locating the lumber mills adjacent to its right-of-way, which resulted in the building of a town along its right-of-way and the increasing of the business of the railroad company, and the fact that the freight upon the machinery to' build the mill was referred to in arriving at the amount of money to be paid by the railroad to the lumber company, in no way invalidated said contract. Authorities as under point 4. (7) Even under appellant’s theory of this case, the contract would not be unenforcible, as the rate must be both established, filed, posted and published to be a valid rate, and it nowhere appears that .the rates in question were ever filed ■with the Commerce Commission, or posted. U. S. Compiled Statutes, 1910, Supp. 1909, p. 1138 (Interstate Commerce Act); Armour v. United States, 153 Fed. 1; United State v. Wood, 145 Fed. 409; Eailroad v. Sloop, 200 Mo. 214; Griffin-v. Eailroad, 115 Mo: App. 554.
   WHITE, C.

— The suit is for damages for breach of contract.

The plaintiff obtained judgment in the circuit court of Jackson County for the sum of $4572.54, and after an appeal to the Kansas City Court of Appeals the cause was transferred to this court on motion of the appellants on the ground that the construction of the Fourteenth Amendment to the Constitution of the United States and of section 30, article 2, of the Constitution of Missouri, was involved.

Plaintiff was a corporation engaged in the manufacture and sale of lumber, with headquarters at Houston, in the State of Texas. The petition, filed March 24, 1910, alleges that in the middle of the year 1905 the plaintiff desired to erect large mills for the manufacture of lumber at Clinesburg, in the State of Texas; that the defendants desired to have such mills eréeted so they “might obtain freight from the hauling of the lumber” so manufactured; the defendants in order to induce the plaintiffs to erect the mills at that time agreed with the plaintiff: “In consideration of the plaintiff erecting said mills at said'place that they would pay to the plaintiff an amount equal to one-half of the defendants’ proportion of all freight charges for the hauling of all the necessary machinery, material and equipment for the erection and installation-of the said mills.” That “in consideration of the above” the plaintiff agreed to erect and did erect said mills.

The petition then sets out in detail the machinery and material shipped from various points in other states to Clinesburg, Texas, for that purpose, over the defendants’ lines and other railroads, and the amount of freight charges paid to the defendants, one-half of which amount so received by the defendants was $4572.54. It then alleges demand of payment and refusal by defendants to pay; wherefore, plaintiff claimed damages in the sum of $4572.54.

After a general denial, the answer alleges that the contract sued on, if such there were, was illegal, void and unenforcible, and in violation of the Interstate Commerce Act.

The defendants objected to the introduction of any evidence on the ground that the petition failed to state a cause of action, demurred to the evidence at the close of plaintiff’s evidence and again at the close of all the evidence; all of which objections and demurrers were overruled, and the cause was submitted to the jury.

There is little or no dispute as to the facts in the case. An agreed statement was introduced which covered all the formal requirements in making out the ease as plaintiff conceived it, including the erection of lumber mills at Clinesburg; the interstate character of the shipments over the railways of the defendants of the materials and machinery that went into its construction; the amount of freight charges received by the defendants for such transportation, one-half of which was $4572.54. The stipulation then provides: ‘ ‘ That during the entire time mentioned in the petition to this suit, said freight rates charged and paid by the plaintiff were the regular published tariff rates on said commodities, and that no new tariff, reducing the amount of the rate of said freight charges, was published during said time.”

The Poster Lumber Company at the time had its headquarters at Houston, Texas, and owned large tracts of lumber lands located in San Jacinto County, Montgomery County, Harris County and Liberty County, the total amounting to over one hundred thousand acres. The plaintiff desired to erect mills at Clinesburg, which was situated on the line of defendants’ railroad, in Montgomery County, within convenient distance of the several tracts. Before beginning the erection of the mills Mr. Womack, assistant manager, and Mr. Foster, vice-president, of plaintiff, had two or three conversations with Mr. Hershey, general freight agent, and Mr. Coleman, industrial agent, representing the defendants. The plaintiff’s representatives wanted to know what the defendants “could do for us in the way of concession or donation;” and put forward the advantages which the plan would he to the road. It would cost approximately five hundred thousand dollars, a town of probably fifteen hundred people would grow up at the point where it would be erected and the defendants would be furnished about a hundred and twenty-five carloads of lumber per month for transportation. Defendants’ representatives then suggested that they would give, in consideration of the erection of the mills, an amount equal to half of the freight charges received by defendants on shipments of material that went into the construction of the plant. A telephone conversation finally concluded the agreement on those terms. The only difference between the testimony of plaintiff’s witnesses as to what was said at these conversations and that of Mr. Hershey for the defendants, was in the use of terms, the plaintiff’s representatives saying they were to receive a “donation” for erecting the mills and Mr. Hershey speaks of it as “reduced rates” for shipping the material used in erecting them. Mr.. Hershey stated that his company wanted to get the mills on their roadway “to make business for our railroad,” for they would “get to haul that lumber out;” also, the location of a plant of that magnitude would make something of a town and the company would profit by the freight and passenger traffic Avhich would ensue.

After the mills were erected the defendants neglected to pay according to agreement, and the plaintiff began to write letters urging the payment. The word donation was not used in any of these letters. Such expressions as these: " refund that is due us; ” " a refund of overcharge on certain shipments; ” " our claim for overcharge on machinery,” were used.

Mr. Hershey, it appears, desired to pay the claim and took up the matter with the home office in Chicago, but was notified that it conld not he paid, because the Hepburn amendment had become effective, making it unlawful to pay it.

The court instructed the jury that if the defendants agreed with the plaintiff “in consideration of plaintiff erecting said mills at said place” defendants would pay to plaintiff an amount equal to one-half of defendants.’ proportion of freight charges for handling all necessary machinery, etc., for the erection of said mills, and if plaintiff did erect said mills, etc., the jury would find for the plaintiff in the sum sued for. On behalf of the defendants the court instructed the jury if they found from the evidence that a contract or arrangement was made by the plaintiff and defendants to the effect that the plaintiff was to have “refunded or paid back to it one-half the amount the defendants collected in accordance with the tariffs and schedules filed and published as required by the Interstate Commerce Act,” then plaintiff could not recover. The verdict was for the plaintiff in the amount above mentioned.

I. The liability of a carrier upon contracts concerning interstate shipments is governed entirely by the Interstate Comerce Act, and amendments thereto. The construction of that Act by the Federal courts is conclusive upon the State courts. [Donovan v. Wells Fargo, 265 Mo. 291; Haseltine v. Central National Bank, 155 Mo. l. c. 74; Barber Asphalt Pav. Co. v. French, 158 Mo. 534; American Silver Mfg. Co. v. Wabash R. R. Co., 174 Mo. App. 184; Hardwick v. Wabash R. R. Co., 181 Mo. App. 156.]

The second section of the Interstate Commerce Act provides that it shall be unlawful “if any common carrier subject to the provisions of this act, shall, directly or indirectly, by any special rate, rebate, draw-bach or other device, charge, demand, collect or receive from any person or persons, a greater or less compensation for any service rendered or to be rendered in the transportation of passengers or property subject to the provisions of this act, than it charges, demands, collects or receives from any other person or persons for doing for him or them a like and contemporaneous service.”

The third section makes it unlawful: “For any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation or locality or any particular description of traffic, in any résped whatsoever, or to subject .any particular person, company, firm, corporation or locality, or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.”

Section six of the act provides for the filing with the Interstate Commerce Commission and publishing a schedule of rates which the carrier may establish, and makes it unlawful for such carrier to charge or collect from any person a greater or a less compensation than that specified in the published schedule. This section was amended in 1903 by the Elkins Act so as to make it unlawful for any person to grant, solicit or accept “any rebate, concession or discrimination” in respect to the transportation of property, whereby such property “shall, by any device whatever, be transported at a less rate than that named in the tariffs published.” This section was further amended by the Hepburn Act in 1906, after the contract under consideration was entered into, making the provisions a little more specific and making it unlawful for such carrier to ‘ ‘ refund or remit in any manner or by any device any portion of the rates, fares and charges specified” in the tariffs filed.

It is claimed by the appellants that the Hepburn amendment applies to the transaction under consideration the same as do the provisions of the act already in force. It is unnecessary, for the purposes of this ease, to examine the reason for that position or to determine that'question.

The jury, by their verdict under the instruction found that the consideration for the agreement on which the payment was demanded was the erection of the mills at Clinesburg by plaintiff and found the contract between the parties was not “to have refunded or paid back to plaintiff” one-half of the freight charges defendants collected. It is claimed by the respondent that here is a finding of fact by the jury which fixes the character of the contract as one that is not in contravention of the act. It was an agreement to pay a certain bonus as a consideration for the promotion of industries along the company’s line, and the freight rates were simply referred to as a basis for estimating the amount of the bonus.

Putting aside for the moment the question whether the jury were not left to perform the court’s function and construe the contract, about the terms of which there in no dispute, what was the effect of their finding? So far as they ascertained a fact and stated the result by the verdict it was nothing more nor less than an ascertainment of the intention of the parties to the contract; that is to say, they found that neither the plaintiff nor the defendants intended to violate the law; that they intended to frame their contract in such a way as to make it legal. The stated consideration for the agreement, the building of the mills, is only the surface statement of the matter. The real consideration, the inducement back of that, is made clear by the talk which led up to the arrangement. The railway companies would receive a great deal of future business in the way of handling the freight which came from the mill. If the companies, without violating the act, could give a bonus determined in amount by the freight handled in hauling materials for building the mills, with equal propriety they could give a bonus figured on the freight they would carry in hauling lumber from the mills after they were built, either for a limited time or an unlimited time; and in that case they could have provided for the payment of the bonus in installments at regular intervals based on the freight hauled up to the time of each payment. Any such arrangement would have been the same in purpose and effect as the arrangement sworn to. The consideration, measured by half the amount paid for ■freight hauled for certain purposes, was to get more freight to haul for other purposes, which meant an average reduction in charge for all freight hauled below the tariffs charge^ the general trade. The application of confusing nomenclature and resort to an unusual method of payment do not alter the character of this concession. It would make no sort of difference in the purpose of the parties whether the bonus was paid by the railroad companies in a lump sum after the freight had been hauled and the charges paid, or whether it was simply paid by reduction of the freight bills to half charge in the first place.

It is difficult to frame a law in such form as to anticipate every clever artifice to avoid it; so, according to recognized rules of interpretation, a law of this character must be understood and enforced'according to its evident purpose and in the light of conditions which brought it forth. A few cases from the United States Supreme Court show that this act has been so construed as to cover cases similar in effect and similar in shrewdly attempted evasion, to this one. The case of United States v. Union Stock Yard, 226 U. S. 286, is a case in point. There the Union Stock Yard Company, which was a common carrier engaged in interstate commerce, made a contract with the Pfaelzers whereby it agreed to pay the latter the sum of $50,000 in consideration that the Pfaelzers should build a p'aeking plant adjacent the company’s yards, costing a certain sum and having a certain capacity. The Pfaelzers agreed that all livestock slaughtered or canned by them within a certain radius should pass through such stock yards and pay the customary tolls and charges and that for fifteen years they would conduct all their slaughtering, packing and canning business at such plant. The only difference between that contract and the contract under consideration, as the latter is interpreted by respondent, is this stipulation to restrict their business to the stock yards company as a carrier for certain purposes. This however, is not a real difference, because while in the Stock Yard case the beneficiary of the bonus was obliged to deal with the Stock Yard Company for a certain time by contract, the plaintiff in the present case was compelled to do so by circumstances. It could not ship over any other road because there was no other road there. The point decided in the Stock Yard case was that a bonus given to a favored shipper in order to procure his business, is within the inhibition of the Act. The court in that case so construed the act as it was before the Hepburn amendment, and as it stood after'the Elkins amendment, which was enacted before the contract under consideration here was entered into. In the case of Fourche R. R. Co. v. Bryant Lumber Co., 230 U. S. 316, where the United States Supreme Court held that a railroad company could not purchase land by rebating to the grantor a part of the freight rate on interstate shipments, it was said, 1. c. 323: ‘ The commerce act prohibits the payment of rebates, and its command cannot be evaded by calling them differentials or concessions, nor by taking the money from the railroad itself or from a company that is proved to be the same as the railroad. ’ ’

In the case of New Haven Railroad v. Interstate Com. Comm., 200 U. S. 361, l. c. 392, the carrier attempted to conceal a reduced -freight rate in the selling price of a commodity which it owned, carried and sold, and the difference was accounted for in the release of an unliquidated claim for damages. The Supreme Court held that it was prohibited by the act. The court used this significant language: “How can it in reason be held that a carrier may take itself from out the statute in every case by simply electing to be a dealer and transport a commodity in that character 1 ” ■ .

We may aptly paraphrase the question: how can the defendants in this case take themselves out of the operation of the statute by simply electing to call themselves promoters'? The act was not limited in its scope to open violations and discriminations, but was intended to cover all the essential cases where free competition is abridged.

II. But it is said there were other inducements. town would be built there and a community would grow in commercial importance with consequent demands for freight and passenger transportation, which meant prosperity for the railroad company.

The promotion of such enterprises has been held to be beyond the legitimate power of a common carrier. [Union Pacific Railway v. Goodridge, 149 U. S. 680, l. c. 690.] Besides, the purpose of the act was not merely to compel honest competition among railroads engaged in interstate commerce, but to prevent unjust discrimination among shippers, to prevent one customer from obtaining in' freight rates on interstate shipments an undue advantage of another customer; to promote, as far as the carriers affected the situation, free competition and equality of opportunities among the shippers engaged in maintaining industries which have need of the carrier’s lines. Congress in passing the act doubtless had in mind the many instances within the common knowlege where large dealers, by reason of rebates and draw-backs and the advantages derived from them, were enabled to crush out smaller competitors who had no such advantage. The court in the Union Stock Yard case cited above (226 U. S. 1. e. 307) stated the purpose thus: “This court has had frequent occasion to comment upon the purpose of Congress in the passage of these laws to require equal treatment of all shippers and to prohibit unjust discrimination in favor of any of them.”

The same court said in the case of Wight v. United States, 167 U. S. l. c. 517: “The wrong prohibited by the section” (Section two of the Interstate Commerce Act) “is a discrimination betiveen shippers. It was designed to compel every carrier to give equal rights to all shippers over its own road and to forbid it by any device to enforce higher charges against one than another. ’ ’ In the case of Int. Com. Comm. v. B. & O. R. R. Co., 225 U. S. l. c. 342, that court thus declares the purpose of section two of the act: “It must be kept in mind that it is not the relation of one railroad to another with which we have any concern, but the relation of a railroad to its patrons, ivho are entitled to equality of charges.” In Int. Com. Comm. v. Delaware, L. & W. R. R. Co., 220 U. S. 235, that court, referring to a previous case, said: It was there held “that a carrier could not properly look beyond goods tendered to it for transportation [in carload lots] ‘to the ownership of the shipment’ as the basis for determining the application of its' established rates.” „

The public character of the service rendered by common carriers and their obligations to serve the public with indiscriminate justice has been long recognized by the courts, but, in late years, the increasing dependence of the general community upon them for the orderly dispatch of every-day affairs and the maintenance of normal conditions of prosperity, has led to a more intense realization of their purpose by the public and more emphatic pronouncement of their duties by the courts. The act under consideration is a legislative effort to furnish an instrument by which the proper exercise of their functions as public servants may be secured. According to the facts shown here, the plaintiff already had a large advantage over any other possible competitor in owning over one hundred thousand acres of land in the vicinity. By receiving reduced rates, or a bonus if the term is preferred, which would aid it in the construction of a big mill, it would necessarily have an additional advantage over any competitor, big or little, who also desired to erect a mill. It was other lumber manufacturers, actual or prospective, who were discriminated'against. The small mill owner, the man of little capital, had a right to the same treatment at that point on interstate shipments as the large mill owner who obtained this advantage.

It was expected that a town would be built along the company’s lines where no town had existed before. It is because of unequal opportunities in older communities that men flock to a new and growing community in order that they may have something like an equal show with the others ,• but a lumber manufacturer coming into this new community with that expectation, would find already that, because the common carrier, the most potent agency in the development of such new country, had granted such special advantages to a powerful competitor, an equal chance was impossible. If the company could favor a lumber dealer it could favor other dealers. It is the creation of such special privileges and such restricting of opportunities to favored persons at the start that prevent the natural and symmetrical development of such a community.

As suggested before, this was an agreement about the terms of which the parties have scarcely any dispute, but it was evident they understood it should not be reduced to writing or put in any form where it might be accessible to court orders. It is not intended by this tó say that the parties were guilty of any fraud in an attempt to evade the provisions of the law, because that is not necessary. The act is not limited to fraudulent schemes and devices by which freight rates are reduced or rebates received, but covers every case where there is discrimination. [Armour Packing Co. v. United States, 209 U. S. l. c. 71.] The real purpose in concealing a discrimination is not always to evade the law, but to hide from other shippers the fact that they were being discriminated against. Doubtless it was to prevent other'possible shippers from knowing that the plaintiff in this case had special favors that this was a “gentlemen’s agreement” rather than a written contract.

Under the construction of the Interstate Commerce Act and its evident purpose as interpreted by the Supreme Court of the United States, a bonus to a favored shipper is a device condemned by this act. The contract here was within its provisions and void.

III. Appellant asserts there could be no rebate in

this case, because, it says, there was no evidence the rate which the respondent paid was the “legally-established and published rate.”

Section six of the act requires that every carrier subject to the provisions of the act “shall file with the Commission creáted by this act and print and keep open to public inspection, schedules showing all the rates, ’ ’ etc.

The stipulation in the agreed statement of facts before set out says that the rates charged and paid by the plaintiff were the “regular, published tariff rates.” By signing the stipulation and offering it all in evidence plaintiff must be presumed to have offered it for a purpose for which it was competent. The evident purpose of that paragraph was to show that the law had been complied with regarding establishing and posting rates and it was not competent for any other purpose; if it was not competent for that purpose plaintiff should not have offered it. Besides, plaintiff proved it paid the “regular full tariff rates,” as it apparently felt it had to do in order to make out a case. The fact that the defendant charged those rates as “regular,” and plaintiff paid them, is sufficient to show they were the “established” rates. In the case of Ward v. Mo. Pac. Ry. Co., 158 Mo. 226, the plaintiff sued to recover for the loss of household goods shipped. The defendant railroad company answered setting up the contract of shipment which provided that “in consideration of the rate of tariff which is less than the regular rate,” the valuation of the goods should not exceed five dollars per hundred pounds, and therefore the loss was much less than plaintiff claimed. This court held that the answer set up no defense because the contract was void, that the designation of the rate as “less than the regular rate ’ ’ showed it was in violation of the act.

- The cases cited by respondent showing it is necessary to prove that the rate was regular, established and published, are where the contest always arose over the validity of the rate under consideration as determined by section six. This cause of action arises on account of a discrimination in violation of sections two and three. If the rate charged and paid was “the regular published tariff rates on said commodities,” which means the same rate as the defendant charged other people, then the bonus or rebate was a reduction from that charge. If in fact defendants had violated one section of the act requiring the establishing and posting of the rates, that would not make valid a contract which was in violation of another section of the act prohibiting discrimination in rates. The principal case in this State cited by respondent, Wabash Ry. Co. v. Sloop, 200 Mo. 198, is one where the railroad company sought to recover from the shipper a deficiency in the, rate paid on account of some mistake in the bill rendered, whereby the shipper had paid less than the regular rate. It was held there was no proof that the company had published the rates and hence the shipper was not bound by them, since he had no knowledge of them and there was nothing to give him notice. The case is not in point, for here the plaintiff seeks to recover one-half of the regular rate he has already paid according to bills presented.

The judgment is reversed.

Roy, C., concurs.

PER CURIAM:

— The foregoing opinion by White,

C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: GRAVES, C. J.

license: Public Domain

text:
    THE STATE ex rel. CENTRAL COAL & COKE COMPANY v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals, and JOSEPH HOLVEY, Sheriff.
    In Banc,
    May 22, 1917.
    1. MINING: Duty as to Safety. It is the duty of the miner to keep his working place safe; it is the duty of the master to keep the entries (the places generally used by numerous miners) in a condition of reasonable safety.
    2. INSTRUCTIONS: Broader Than Pleading or Evidence. An instruction cannot be broader than the pleadings, nor broader than the facts proven; it must be within the purview both of the pleadings and the evidence.
    3. -: -: Mining: Place of Danger. Where the miner was working at removing roof supports that had been left when the rooms of the mine were “turned,” and his petition is drawn on the theory that at a point in the mile-long entry fifteen to twenty-five feet from his working place his master had permitted a bad roof to remain, and he had gone to that point to eat his dinner, not knowing it was unsafe, and was killed by the falling of the fragile roof, an instruction which permits a recovery if a large slab of rock fell from the roof of “one of the main entries,” without limiting the point of injury to the place in the entry at which the petition charges the negligence was, is broader than the pleadings, and a verdict cannot be upheld on the theory that the error was harmless.

      4. -: : Harmless Error. If evidence! assuming a broader field than the pleadings is erroneously admitted, instructions based upon such evidence which are broader than the pleadings cannot be held to be harmless. That course would require defendant to meet an issue of which the petition did not give him notice.
    5. -: : -: Certiorari: Quashing Opinion of Court of Appeals. The Court of Appeals cannot preclude a review by the Supreme Court of an instruction that is broader than the pleadings by merely saying it is harmless.
    6. -: Conflicting. An instruction for plaintiff authorizing a recovery if a loose slab of rock fell from the roof of “one of the main entries of defendant’s mine” and crushed the miner, is in direct conflict with a correct instruction given for defendant telling the jury, in the language of the petition, that they must find the roof fell at a point fifteen to twenty feet from his working place; and by repeated decisions it has become the established rule of law in this State that if two instructions conflict and the one given for appellant is right under the law, the giving of the one for plaintiff is error, for which a judgment for him must be reversed.
    7. -: Damages: Aggravation. An instruction telling the jury that, if they find for plaintiff in the action for the negligent killing of her husband, they will allow her a sum not to exceed $10,000, in their discretion, etc., and “you may also take into consideration the facts constituting negligence on the part of the defendant causing the death,” was erroneous, first, because there were no aggravating circumstances shown and the instruction was therefore broader than the evidence; and, second, the petition did not plead such a case, and the instruction therefore broadened the issues.
    Certiorari.
    Record quashed.

      B. R. Dysart and W. C. Goodson for relator.
    (1) It is now well settled that the Supreme Court has the power as well as the duty to quash the decision of one of the appellate courts of the State, where its rulings are not in accord with, hut against the rulings of the Supreme Court. State ex rel. v. Ellison, 266 Mo. 604; State ex rel. v. Reynolds, 265 Mo. 88. (2) If the Court of Appeals approves the admission or exclusion of evidence, contrary to prior rulings of the Supreme Court; and if the Court of Appeals approves an instruction, which instruction was not in accord with the last or prior instruction of the Supreme Court, then the Supreme Court on certiorari will'quash the record of the Court of Appeals. State ex rel. v. Ellison, 256 Mo. 644. (3) It is submitted by the relator that the Kansas City Court of Appeals failed to follow the last ruling decision of the Supreme Court in the following particulars: (a) The Court of Appeals approved an instruction authorizing a recovery if plaintiff’s husband was killed anywhere in the relator’s coal mine, provided ho .was so killed away from his working place; and this in the face of the fact that her petition alleged that ho was killed fifteen or twenty-five feet north of his working place, and that he was killed by reason of the fact that the relator had negligently failed and neglected to care for and keep in repair the roof of the entry at a •point fifteen or twenty-five feet north of his worldng place. This instruction was evidently a broadening of the issues, and if so, it contravenes prior rulings of the Supreme Court. Degonia v. Railroad, 224 Mo. 589; Mansur v. Bott, 80 Mo. 658; Bank v. Murdock, 62 Mo. 70; State ex rel. v. Ellison, 176 S. W. 11; State ex rel. v. Ellison, 181 S. W. 998; State ex rel. v. Ellison, 187 S. W. 23. (b) There was palpable and radical error in Instruction 2 given by the trial court on the measure of damages, which was contrary to the former rulings of the Supreme Court. Said instruction authorized the jury to take into consideration the character of the defendant’s negligence. The verdict and judgment of the court was for $6000. Said instruction sounded in punitive damages. It was equivalent to saying: “You should take into consideration the aggravating circumstances of the defendant’s negligence.” Boyd v. Railroad, 236 Mo. 54; G-oode v. Coal Co., 167 Mo. App. 176. (e) Instruction 7 was evidently c<)rrect, and in palpable conflict with the plaintiff’s instruction 1, and therefore in conflict with the last and prior rulings of the Supreme Court. Sheperd v. Transit Co., 189 Mo. 373; Porter v. Railroad, 199 Mo. 96; Imp. Co. v. Ritchie, 143 Mo. 612.

      Dan R. Hughes and Burns, Burns & Burns for respondents.
    (1) Plaintiff’s instructions declare the law. Boyd v. Railroad, 236 Mo. 94; Boyd v. Railroad, 249 Mo. 136; Goode v. Coal & Coke Co., 179 Mo. App. 207; Goode y. Coal-fe Coke Co., 167 Mo. App. 169. (2) The opinion of the Kansas City Court of Appeals is not in conflict with decisions of the Supreme Court. Holman v. Macon, 177 S. W. 1078; Mansur v. Botts, 80 Mo. 658; State ex rel. v. Reynolds, 265 Mo. 88; Dagonia v. Railroad, 224 Mo. 564; National Newspaper Assn. v. Ellison, 176 S. W. 11; State ex rel. v. Robertson, 262 Mo. 535. (3) Plaintiff’s instruction on the measure of damages correctly declares the law. Boyd v. Railroad, 236 Mo. 54-94; Boyd v. Railroad, 249 Mo. 110-136; Secs. 5426, 5427, R. S. 1909. (4) Where the judgment, is for the right party it will not be reversed, although error was committed. Sec. 2082, R. S. 1909; Putnam v. Bowyer, 173 Mo. App. 394; Redd v. Railroad, 161 Mo. App. 522.
   GRAVES, C. J.

— Certiorari to the Kansas City Court of Appeals, directing that said court certify up its record in the case of Catherine Goode, Respondent, v. Central Coal & Coke Company, Appellant. The case has experienced a rather checkered career. The judgment now certified to us by the Court of Appeals is the third judgment entered therein by that court. When the case was first there (167 Mo. App. 169) a judgment for plaintiff was reversed for errors in instructions. So, too, when there the second time (179 Mo. App. 207) it was likewise reversed for errors in instructions. By the present (third) judgment the plaintiff is sustained in a recovery of $6000 for the alleged negligent killing of her husband whilst working as a coal miner for defendant in one of its mines in Macon County. The record is somewhat broadened because the opinion before us refers specifically to the two previous opinions for the facts. We have, therefore (by this reference in the last opinion) not only the three opinions of the Court of Appeals, but likewise such records and evidence as are incorporated therein, either by reference or by direct quotation. Under these circumstances it would be indeed singular if the complete record in the Court of Appeals was not before us through their several opinions. Prom them all we gather the facts thus: Plaintiff’s husband was killed in one of defendant’s coal mines in Macon County, Missouri. She, conceiving that the negligence of the defendant occasioned his death, brought suit for $10,000 damages. The petition charges (1) that it was the duty of defendant to exercise reasonable care to keep its shafts, entries and drifts in a reasonably safe condition; (2) the petition then proceeds in this manner:

“Plaintiff further states that said Mine No. Sixty-One is a large mine, at which defendant employs a large number of men; that on' the said 27th day of March, 1911, the defendant and its officers and agents ordered and directed the said James V. Goode to go through one of the main entries of said Mine No. Sixty-one, known as the third south entry off the sixth west entry, being an entry running north and south in said mine, and at the east side of said entry engage in taking out coal by what is known as pulling pillars; that the said James V. Goode, deceased,did go to said point and did work as. so ordered; that the said point, where defendant and its officers and agents so directed James V. Goode to work and where he did work as aforesaid, was a great distance from the shaft or place of entrance to said mine, and for economy of time it was necessary for the deceased, James V. Goode, to take his noon lunch with him into said mine.
“Plaintiff further states that the defendant and its officers and agents carelessly and negligently permitted and suffered the roof of said entry in said mine in which the said James V. Goode was ordered and directed to work and at a point from fifteen to twenty-five feet north of the working place of said James V. Goode, on said March 27, 1911, to be and remain dangerous and unsafe and then and for some time prior thereto carelessly and negligently failed and neglected to prop, brace or otherwise support or protect the roof of said entry at a point from fifteen to twenty-five feet north of the working place of the said deceased James Y. Goode and at a place in said entry where it was the duty of the defendant to use reasonable care to keep the same in a reasonably safe condition. The roof of said main entry was composed of fragile and breakable rock, slate and dirt, and was on March 27, 1911, and for some time prior thereto had been loose, unsafe and dangerous; all of which the defendant and its officers and agents well knew, or by the ex'ercise of ordinary care could have known.
“Plaintiff - further states that on the 27th day of March, 1911, at about twelve o’clock, noon, the deceased, James y. Goode while engaged as a coal miner as aforesaid and while in the exercise of due care and caution and without fault or want of care on his part ‘stepped from the point’ at his working place about the east side of said main entry to a point from fifteen to twenty-five-feet north of his working place in said main entry in said Mine No. Sixty-one, where it was the duty of the defendant to use reasonable care and diligence to keep the roof thereof in a reasonable safe condition, for the purpose of eating his lunch, and while so engaged, a large slab of rock fell from the east side of the roof of said main entry westward down to and upon the deceased, James y. Goode, thereby crushing, mangling, injuring and cutting off the top of his head, from which crushing, mangling and injuring the said James V. Goode then and there instantly died.
“Plaintiff further states that the death of the said James V. Goode was caused, occasioned and brought about by reason of the carelessness and negligence of the defendant and its officers and agents in so carelessly and negligently failing and neglecting to use reasonable care and diligence to make the roof of said main entry in said Mine No. Sixty-one reasonably safe at and about the point where the deceased, James y. Goode, was killed as aforesaid, when the defendant through its officers and agents knew, or by the exercise of ordinary care and diligence, could have known that the roof of said main entry at said point and away from the working place of the said deceased, James Y. Goode, was ordered to work was dangerous and unsafe as aforesaid.”

The answer consisted of (1) a general denial; (2) plea of contributory negligence; and (3) a plea of assumption of risk. The petition for certiorari charges ■several conflicts between, the opinion of the Court of Appeals and opinions of this court, which, in Connection with this general outline, will be noted in the course of the opinion.

I. It is clear that the petition charges that the place of plaintiff’s husband’s injury was in an entry way fifteen to twenty-five feet north of the place where the plaintiff was working. .Plaintiff’s husband was engaged in a work somewhat different to ordinary mining. In other words, he was not working in a room “drifted” out from an entry, but was in fact depleting a mine. His business was to remove the roof supports, or pillars of coal, that had,been left when the rooms of the mine were “turned.” His petition so shows and the recited facts in the opinions so show. According to his petition he was directed to remove these “pillars” of coal and thus close that portion of the' mine from further mining operation. Under the well established mining law of the State, it is the duty of the miner to keep his working place safe, and the duty of the master to keep the entries (the places generally used by many miners) in a condition of reasonable safety. The petition in this case is on the theory that the plaintiff was placed to work at a given place and that at a point (in an entry) fifteen to twenty-five feet north of his working place (a place where he had to look after his own safety) the master had negligently and knowingly permitted a bad roof to remain. The petition does not charge that the roof of this entry was dangerous at any other place, although it is shown that the working place and necessarily this entry was about a mile from the shaft, or place of exit. Presumably from the facts indicated the entry was one of some length, and not only so but there were others in the immediate community. Under these facts and this kind of a petition, the trial court instructed thus:

“The Court instructs the jury that if you believe and find from the evidence that the defendant was on the 27th day of March, 1911, a coal mining corporation, operating a coal mine known as Mine Number 61, near Ardmore, Macon County, Missouri; that James Y. Goode was in the employ of the defendant, engaged as a common laborer in digging coal for defendant; that prior to and on the 27th day of March, 1911, James Y. Goode was the husband of plaintiff, Catherine Goode, and that on said 27th day of March, 1911, said James V. Goode was working for the defendant in its .said Mine Number 61, and was in the exercise of reasonable care and caution for his own safety on his part; and that a large slab of rock fell from the side and roof of one of the main entries of defendant’s said mine and at a point away from his working place, on to the said James Y. Goode and instantly killed hini; that said slab of rock was and had been loose and dangerous, and that the defendant, its officers and agents knew, or by the exercise of ordinary care would have known that said slab of rock was loose and dangerous, and that said James Y. Goode did not know, and by the exercise of ordinary care would not have known that said slab of rock was loose and dangerous, then your verdict must-be for plaintiff, in such sum as you may believe from the evidence she is entitled to recover, if any, not to exceed the sum of ten thousand dollars.”

The italics, supra, are ours. It should be noted that the instruction in so far as it undertakes to locate the place in the mine whereat the defendant had been negligent, says: “from the side and roof of one of the main entries of defendant’s said.mine,” without limiting it to the place in the entry where the petition of the plaintiff charged the negligence to be. Nor does it limit it to the entry wherein the deceased was at work. It simply describes the place “as one of the main entries.” Defendant contends that this instruction broadened the issues made by the pleadings, and that the Court of Appeals in upholding a judgment growing out of such an instruction had gone contra to our rulings. The Court of Appeals in the opinions filed do not seriously question that the instruction broadened the issues, but rather sustain the verdict upon the theory that the error was harmless. Error is presumed to be harmful unless the contrary be'made to appear. Under this petition the defendant had the right to conclude that there was no necessity of disproving negligence in the maintenance of the entry roof at any point except .that named in the petition. The failure to charge negligent maintenance at any other point amounted to a concession that at other points the entry roof was safe. At least it was not incumbent upon defendant to prepare proof as to safe maintenance except at the place named. To require the defendant to defend against alleged negligence at other points in the entry or in the mine would be manifestly unfair. Under the petition the defendant might be fully prepared to meet this issue of alleged negligence, but would not be prepared if the plaintiff’s proof was permitted to take a broader range and show negligence elsewhere than alleged in the petition. But even if the proof does take a broader range, yet an instruction given must be both within the terms of the pleadings and the proof. We have had occasion to examine this rule several times, and tried to shortly express the Missouri ease law when in Degonia v. Railroad, 224 Mo. l. c. 589, we said:

“But, further, an instruction cannot be broader than the pleadings, although the evidence may take a wider range, nor on the other hand can the instruction be broader than the facts proven, although the pleadings may take a broader range. In other words, the instruction must be within the purview both of the pleadings and the evidence. [Mansur v. Botts, 80 Mo. l. c. 658; Bank v. Murdock, 62 Mo. 70.]”

The Missouri case law upon the subject of broadening the issues made by the pleadings by way of instructions (even though based upon evidence beyond the scope of the pleadings) are fully reviewed in the later case of State ex rel. National Newspapers’ Assn. v. Ellison et al., 176 S. W. l. c. 13, whereat we said:

“Having so pitched his battle lines, the legal battle must proceed upon such lines. He cannot broaden the issues either by evidence or instruction.”

We were there discussing the negligence pleaded in the petition, and so discussing it in a case where the evidence' offered took a broad latitude. We announce again, as we have before, that instructions cannot be broader than the pleadings, however much latitude the course of the evidence may take. The issues to be covered are the issues (in the first instance) made by the pleadings. No instructions should be broader, as to issues, than the pleadings. If the evidence is not as broad and comprehensive as the issues made by the pleadings, then the instructions must be .within the evidence and the pleádings, but cannot be broader than the evidence.

In the instant case the evidence assumed a broader field than the pleadings. In such event the instructions must be limited to the issues raised by the pleadings. The instruction cannot follow the broad latitude of the evidence, and especially so when such evidence was objected to at the trial. But we need not rely upon an objection to irrelevant evidence. At most, the issues made by the pleadings are the only ones to be instructed upon, and even these issues may be lessened in number if the evidence offered does not cover all the issues made by the pleadings. In the instant case the instruction did go beyond and broaden the issues made by plaintiff’s petition, and in this violated the rule announced by this court, and the opinion of the Court of Appeals likewise contravened our rule when it sustains the instruction. The opinion practically admits this position, but takes the view that the error was harmless. We cannot take that view of the instruction. When a trial court admits evidence (erroneously) beyond the issues made by the pleadings, and then instrncts (erroneously) upon such evidence, it is requiring the defendant to meet an issue of which it had no notice by the service of process and the petition. The defendant is entitled to know from the petition just what he is called upon to defend, and we can’t say that it is harmless when he is called upon to defend (without notice) a different negligent act. Nor can the Court of Appeals by merely saying -that the erroneous instruction is harmless preclude our review of it here in a case of this character. For the reasons aforesaid the record of the Court of Appeals should be quashed. Other questions we take next.

II. As stated before, we have three opinions to which to go for the facts. It is next urged here that the broad instruction discussed in the previous paragraph of this opinion is in direct conflict with Instruction 7 given for defendant. • Instruction 7 reads:

“You are further instructed by the court that the negligence charged in plaintiff’s petition is that plaintiff’s husband sat down to eat his dinner at a point fifteen or twenty feet north of his working place, at which place there was an overhanging, unsafe and dangerous rock, which was known to the defendant, or could have been known by the exercise of ordinary, care; now, you are instructed that it devolves upon the plaintiff to prove the said facts alleged, by a preponderance of the evidence, that is to say, by the greater weight of evidence; otherwise she cannot recover, and your verdict must be for the defendant.”

That there is a conflict is apparent. The one confines plaintiff’s proof of negligence to the place al-. leged in the petition, whilst the other is at least a roving commission to find negligence in the maintenance of the roof of entry at any point in such entry. As said previously, such a roving commission is unfair to one called upon to disprove negligence. "Where the petition charges the particular place whereat the negligence exists, it is wrong and unfair to require the defendant to defend against alleged negligence in another place. Such defendant might announce ready for trip! upon the negligence charged in the petition, and yet be wholly unprepared to meet evidence of negligence at another place. The law contemplates a fair fight in an open field, but that field is the one circumscribed by the pleadings. The opinion last delivered by the Court ox Appeals in effect overrules the contention of the defendant that there is a conflict in these two instructions. That there is a conflict is apparent; and if the instruction for defendant was correct, as we have indicated by our discussion under point one, supra, then the Court of Appeals has contravened innumerable decisions of this Court in permitting a verdict thus procured to stand. We have always ruled that if two instructions conflict, and the one given for appellant is right under the law, then the giving of the one for the respondent was error for which the case should be reversed. Such is the status of this case.

In Mansur-Tebbetts Imp. Co. v. Ritchie, 143 Mo. l. c. 613, we said:

“Irreconcilable and contradictory' instructions are necessarily confusing to the jury, and invariably breed error. It cannot be said this is harmless error. We are not able to say which ixxstruction the jury followed and which it disregarded.”

III. Upon the measure of damages the plaintiff’s instruction reads:

“The court instructs the jury that if you find for the plaintiff you shall allow her a sum not to exceed ten thousand dollars, ixx the discretion of the jury, and in determining the amount you will allow her you may take iixto consideration the pecuniary loss, if any, occasioned to the plaintiff by the death of her husband, and you may also take into consideration the facts constituting negligence on the part of the defendant causing the .death; and in considering the subject of her pecuniary loss you may consider what would have been the value of her support from her husband from the time of his death during the time he would probably have lived and supported her, and you may also consider the additional burden, if any, falls upon her, for the support of her minor children by reason of his death.”

This instruction is referred to and quoted from in the opinion. We have italicized the clause criticized by the appellant. It. is urged that this clause permitted the jury to add to the damages by way of punishment to the defendant. Appellant says that such instruction sounded in punitive damages.

The statute, Eevised Statutes 1909, section 5427, reads:

“Damages accruing under the last preceding section shall be sued for and recovered by the same parties and in the same manner as provided in section 5425; and in every such action the jury may give such damages, not exceeding ten thousand dollars, as they may deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue, and also having regard to the mitigating and aggravating circumstances attending such wrongful act, neglect or default. [R. S. 1899, sec. 2866, amended Laws 1907, p. 252.]” The italics are ours.

It must be remembered that this statute is fixing the liability not only in simple cases of negligence but in cases of wilful wrongful acts. These sections 5426 and 5427, Eevised Statutes-1909, furnish the basis for wilful wrongs such as unjustifiable assaults. [Gray v. McDonald, 104 Mo. 303.] The clause in this instruction directing the jury to specifically consider the facts constituting the negligence sounds much like authorizing the jury to aggravate the damages if the evidence of negligence would justify. The instruction with this phrase in it was error for two reasons: (1) there were no aggravating circumstances shown, and, therefore, the instruction was broader than the evidence; and (2) the petition did not plead such á case. So that this, like the first instruction discussed in paragraph one hereof, broadened the issues, and the court violated our rule as expressed in the cases cited, supra, in holding that such was a proper instruction. Other points made need not he discussed. From what is said the record of the Court of Appeals should be quashed, and it is so ordered.

All concur, except Bond, J., who dissents, and Williams, J., who did not sit.


author: WILLIAMS, J. WALKER, J.

text:
    THE STATE ex rel. CLAY COUNTY v. GEORGE E. HACKMAN, State Auditor.
    In Banc,
    May 22, 1917.
    1. PUBLIC BO AD BONDS: Maximum County Indebtedness: Five Per Cent Limit: Legislative Exercise. A county may incur an indebtedness in excess of five per cent of its assessed taxable wealth for the purpose o£ improving public roads in the county. By the amendment to the Constitution adopted in 1906 the theretofore existing maximum limit of five per cent upon the amount of county bonded indebtedness for road purposes, was removed; and Sec. 10520, R. S. 1909, enacted in 1907, Laws 1907, p. 411, authorized the exercise by the county of the constitutional power conferred by that amendment.
    2. -: Court Order: What Are Public Boads. The order of the county court containing a recital that the proceeds of the bond issue shall “be used for the improvement of the public roads of the county” is an essential prerequisite to a valid election under the Act of 1907; but the words “of the county,” when compared with the rest of the act and the constitutional amendment of 1906, mean the public roads “in the county;” and since the word “road” is a generic term and includes highways and even streets, the proceeds of the bond sales may be used to improve public roads within unincorporated villages and towns which are connecting links between roads lying outside their limits, and also the roads lying within existing special road districts, and the court order may so declare.

      Held, by WALKER, J., dissenting, with whom PARIS, J., concurs, that a public road means a highway outside the corporate limits of a city or town, while a street means a highway within such limits; and when the -term “public road” is used in a statute, a strict compliance with which is necessary to authorize the incurring of an added burden of taxation, it cannot be held to include streets within an incorporated city or town unless that purpose is expressed in the statute with particularity.

      3. -: Use on City Streets: ' A County Use. Proceeds from an issue of bonds by a county to improve the public roads in the county, under the constitutional amendment of 1906 and the Act of 1907, may be used in improving parts of city or village streets which form a part of the system of the public roads to be improved. The use of the fund for improving portions of the city streets that form connecting links in the connected system of public roads in the county is for a county use or purpose, and not a purely municipal purpose, and is vastly different from turning over a part of the fund to city treasuries to be used in improving streets. [Distinguishing State ex rel. Kirkwood v. County Court, 142 Mo. 575, and Green City v. Martin, 237 Mo. l. c. 484; and disapproving obiter dictum in State ex rel. St. Louis County v. Gordon, 268 Mo. 703.]

      Held, by WALKER, J., dissenting, with whom PARIS, J., concurs, that the streets of an incorporated city or town are not within the purview of the Acts of 1907.
    4. -: -: Control Over Pund. Whether the authorities of cities or existing special road districts have exclusive control over the streets and public roads within their respective territories, or whether the county court has authority to make the proposed improvements in the streets and roads therein, contemplated by the proposed county bond issue, does not affect the validity of the bonds, and is not for determination in adjudicating their legality.

      Held, by WALKER, J., dissenting, with whom PARIS, J., concurs, that in the absence of a statute specifically so providing, the county court has no authority to interfere with the care and maintenance of streets in incorporated towns or to extend aid to the municipality in the improvement of their streets.
    Mandamus.
    Writ issued.

      Ernest G Simrall, Martin E. Lawson, Ralph Hughes and Craven & Moore for relator.
    (1) The amendment of 1906 is simply the removal of a limitation heretofore existing; it is not a grant- of power, hence is necessarily self-enforcing, to the extent that it abolishes previous limitations, so that an act of the Legislature giving a county power to issue bonds for road purposes confers that power upon the county without any limitation. State ex rel. v. Duncan, 265 Mo. 41; Arnold v. Hawkins, 95 Mo. 569; State ex rel. v. R. R., 74 Mo. 163; St. Joseph Board v. Patton, 62 Mo. 444; State ex rel. v. Van Every, 75 Mo. 530; Evans v. McFarland, 186 Mo. 726; Sharp v. Biscuit Co., 179 Mo. 563; McGrew v. Railroad, 230 Mo. 518. (2) The fact that the county court in its order calling the election, and afterward, provided that the proceeds of the bond issue would be expended on certain designated roads does not invalidate the election or make void the bonds. Morse v. Granite County, 119 Pae. (Mont.) 286; Louisville v. Park Commissioners, 112 Ky. 400; Tesler v. Seattle, 1 Wash. St. 308; Grumly v. Marietta, 132 Ga. 408; Santa B.arbara v. Davis, 92 Pac. 308; Bell v. Shreveport, 127 La. 691; Swan v. Murray, 146 Ky. 148; Perkins County v. Graff, 114 Fed. 441; Railroad v. Merrick County, 24 Fed. 644; Wilson v. Pike County, 144 Ala. 397; State ex rel. v. Gordon, 217 Mo. 103. (3) Where the county court declared either in the order calling a bond election, or afterwards, that the proceeds of the bonds would be used on certain specified roads, and where such declaration was made in good faith, the bonds voted are valid, even if by reason of a legal impediment every portion of all the roads to be improved cannot be built. Authorities last above. ' (4) Roads within the limits of special road districts are still “public roads of the county” upon which under Sec. 10522, R. S. 1909, the money derived from this bond issue may be spent and the “exclusive jurisdiction over roads given to these districts by the acts incorporating them is exclusive only for the purposes of their organization and does not and was not intended to preclude the county from improving roads therein under the power of the constitutional amendment and statute.” General statutes which have a particular application inside the boundaries of political subdivisions prevail over general terms contained in the acts creating such subdivisions. Board of Education v. St. Louis, 267 Mo. 362; Peterson v. Railroad, 268 Mo. 488.

      James S. Simrall, amicus curiae.

      Frank W. McAllister, Attorney-General and S. P. Howell, Assistant Attorney-General, for respondent; Theodore Emerson and R. E. Ward, of counsel.
    (1) The county court has no authority to use county funds in paving city streets, and an election held for-said purpose was an unlawful election. The contemplated paving, under the order of the county court and the plat locating the roads, as alleged in the return and not denied, includes the paving of certain streets in seven municipal corporations, aggregating about five and one-third miles. State ex rel. v. Gordon, 188 S. W. 160; State ex rel. v. County Court, 142 Mo. 575; Lamar Township v. Lamar, 260 Mo. 182; Sec. 46, Art. 4, Constitution. (2) By express statutory provision, special road districts are invested with ‘ ‘ sole, exclusive and entire control and .jurisdiction over all public highways, bridges and culverts within the district. ’ ’ The contemplated paving, as alleged in the return and not denied, includes the paving of about 99 miles of public road within the eleven special road districts, over which the county court has no control or authority to expend county funds on such roads. Harris v. Bond Co., 244 Mo. 686; Sec. 10585, R. S. 1909; Laws 1913, p. 680, sec. 10615. (3) The county court ordered an election to authorize the voting of bonds for the purpose of constructing certain designated roads which ran through special road districts and incorporated cities and towns over which the county court has no authority or control and upon which they cannot expend county funds. The voters authorized the issuance of bonds to construct all the roads, as designated in the plat referred to in the petition and notice of election, and did not authorize the issuance of bonds which can be used only upon a certain portion of said designated roads. The county court cannot submit one program to the voters and then carry out a different program. Such course would be equivalent to the county court making a new, separate and distinct contract from that authorized by the people at the polls and one which the court has no means of knowing that they would have authorized. Thornburg v. District, 175 Mo. 31; State ex rel. v. Gordon, 223 Mo. 17. (4) The constitutional amendment to section 12 of article 10, adopted in 1906, provides that ‘ ‘ a county may he allowed to become indebted” to a larger amount than the five per cent of the assessed valuation theretofore authorized, but the General Assembly has not, by any legislative enactment, allowed this to be done. The decided cases announce the rule, that an exception which allows the incurring of a large indebtedness than that' authorized by the original constitutional provision is not self-executing but requires further legislative authorization before such exception can become operative. Brooks v. Schultz, 178 Mo.- 227; State ex rel. Baird v. Holliway, 66 Mo. 387; Public School v. Patton, 62 Mo. 449; State ex rel. v. Railroad, 74 Mo. 163; Arnold v. Hawkins, 95 Mo. 569. (5) Secs. 10520-24, R. S. 1909, under which this bond election was held, expressly limit the procedure provided therein to cases where the indebtedness to be contracted falls within the limit of the maximum indebtedness which the county, under the Constitution, may incur, while the election in this case was ordered and held for an amount in excess of said five per cent limit of maximum indebtedness, and was therefore ordered and held without authority of law. (6) Under the authority of Sec. 10618 (Laws 1913, p. 682) special road districts are authorized to issue road bonds, and at least one of said districts in Clay County has already issued bonds to the amount of $77,000 for the purpose of constructing public roads lying wholly within such' districts. To permit the levying of an additional tax under the authority of Sec. 10520, R. S. 1909, upon the land lying wholly within such districts and for the purpose of constructing public roads amounts to double taxation and is in violation of the principle of uniformity required by constitutional provision and also results in a denial to the owners of property within such districts of the equal protection of the laws, as provided in section 3, article 10, Missouri Constitution, and section 1 of article 14 of the Constitution of the United States. (7) Since the enactment of Sec. 10594, R. S. 1909, as amended, Laws 1913, p. 675, and section 10616, all moneys collected for road purposes on land within special road districts must be turned over to be expended by and under the authority of the commissioners of such districts. The county court therefore has no authority to levy and collect taxes for road purposes on property within such special road districts ajid this election therefore is invalid and without authority of law.
   WILLIAMS, J.

— This is an original proceeding in mandamus brought by the relator to compel the State Auditor to register a portion ($10,000) of a total $1,250,000 proposed public-road-bond issue of Clay County. The bonds, representing the sum of ten thousand dollars, were, upon presentation to the -State Auditor, refused registration. Thereupon this proceeding was instituted. The issuance of the alternative writ was waived. The pleadings consist of relator’s petition, respondent’s return thereto, and relator’s motion for judgment upon the pleadings. The bonds are attempted to be issued under authority of section 10520 et seq., Revised Statutes 1909.

There is no dispute about the facts, which may be stated substantially as follows:

On May 15, 1916, a petition, duly signed by one hundred taxpaying citizens of Clay County, was presented to the county court of said county asking that a proposition be submitted to the qualified voters thereof to bond said county in the sum of $1,250,000 for the purpose of grading, constructing and paving the public roads in said county. It also appears that at the time the petition, above mentioned, was presented to the county court the petitioners also submitted to the court á plat of said county showing the location of the roads proposed to be improved, together with an engineer’s estimate of the cost thereof. This plat, which by stipulation of the parties, is now before us, as a part of the pleadings, shows a proposed connected system of rock roads designated to serve the needs of the whole county; the total mileage of the proposed roads being 202.3 miles. The plat shows the proposed roads as passing through several of the small incorporated towns and villages in said county, but stopping at the edge of the large cities of said county. About five and one-third miles of the proposed inproved roads are thus included within small incorporated towns, and serve as connecting links of the total mileage proposed to be improved. It also appears as an admitted fact that about ninety-nine miles of said proposed improved roads are within the boundaries of certain designated special road districts of said county, and connect with the other roads to be improved.

On the day that the petition was filed the county court made an order that an election be held within forty-five days, to-wit, on June 24,1916, for the purpose of submitting said issue to the qualified voters of said county. Said order sets forth that the county court finds that in order to improve said public roads of said county “as located on said plat” it would be necessary to bond the county in the sum of $1,250,000. The court then sets out in its order a list of the proposed improved roads, the amount of mileage of each proposed road and the estimated cost thereof as shown by the plat and estimate filed by the petitioners with their petition. Said order states the amount of -the proposed bonds and that they should bear interest at four and one-half per cent, per annum from the date of issue. Said order contained the further statement: “It is further ordered by the court that the proceeds of the sale of said bonds are to be and shall be used for the improvement of the said public roads of said Clay County, Missouri, by grading, constructing and paving same with macadam surface as petitioned for and that the proceeds derived from the sale of said bonds shall be expended on each of the aforesaid roads in proportion to the estimates on said roads unless such road is graded as planned therein for a smaller amount.(Italics ours).

The order also states that “the debts of said Clay County, Missouri, for said purpose do not equal the maximum indebtedness said county of Clay, under the Constitution, may incur.”

Notice of said election was given as required by section 10520, Revised Statutes 1909. Said notice among other things recites that the proceeds of said bonds were to be used “for the purpose of grading, constructing and paving with macadam surface about 202.3 miles of the public roads of Clay County, Missouri, as fully shown by map and estimate now on file in the .office of the Clerk of the county court and as set out in the order of the court above mentioned.”

The election was duly held and the vote was’taken by proper ballot and the vote was properly tabulated and certified and spread uppn the records of said county court, showing that the proposition “for increase of of county indebtedness in the sum of $1, 250,000 ’ ’ carried by a vote of more than two-thirds of the qualified voters of said county voting at said election. No question is raised concerning the form of the bonds now sought to be registered.

The assessed taxable property of Clay County is admitted to be approximately $15,000,000.

I. It is contended by respondent that Clay County is without authority of law to incur a bonded indebtedness in excess of five per cent of its assessed taxable property, for the purpose of improving public roads in said county, and that, therefore, said bond issue of $1,250,000, which exceeds five per cent of its assessed taxable property (approximating $15,000, 000), is illegal.

We are unable to agree with this contention.

It is true as stated that the proposed issue of bonds does exceed five per cent of the assessed taxable property of said county.

However, at the general election in November, 1906, by vote of the people of the State, section 12 of article 10 of the Missouri Constitution was amended by inserting, after the word “ jail” in line 13, the following: “ or for the grading, construction, paving or maintaining of paved, gravelled, macadamized or rock roads and necessary bridges and culverts therein.”

. By this amendment the theretofore existing constitutional five-per-cent limit upon the amount of county bonded indebtedness for road purposes was removed. This much is conceded by respondent but he further contends' that the constitutional amendment is not self-enforcing, and that the G-eneral Assembly, prior to the calling of the election for this bond issue, had passed no act which would authorize the exercise by the county of this enlarged power; that Section 10520, Revised Statutes 1909, does not so authorize the county.

Said Section 10520 was enacted in 1907 (Laws 1907, p. 41.1), the first General Assembly after the adoption of the above constitutional amendment, and is as follows:

“Whenever a petition, signed by one hundred taxpaying 'citizens of any county in this State, shall be presented to the county court thereof, asking that a proposition be submitted to the qualified voters of the county to bond the county for the purpose of grading, constructing, paving or maintaining paved, graveled, macadamized or rock roads or necessary bridges and .culverts in said county, it shall be the duty of said county court to order that an election be held, within forty-five days after making said order, to determine whether or not the bonds of said county shall be issued and sold and the proceeds thereof used for any of such purposes, unless the debts of the county for said purpose already equal the maximum indebtedness said county, under the Constitution, may incur. Said order shall contain the amount of bonds it is proposed to issue, the rate of interest they are to bear, the date of the election, and a recital that the proceeds thereof are to be used for the improvement of the public roads of the county. Notice of such election shall be given by publication in at least two newspapers of the county, said notice to be published once a week in four separate issues of each of said papers prior to said election.”

This point, in a somewhat different form, was urged in the recent case of State ex rel. St. Louis County v. Gordon, 268 Mo. 713, 188 S. W. 160; but the court properly held that the point was not there presented because (among other reasons) the proposed issue of bonds in that case did not exceed the five per cent of the assessed taxable wealth of St. Louis County. But here the point is involved, for the reason that, as above stated, the proposed issue exceeds five per cent of the assessed taxable wealth of Clay County.

Respondent contends that the phrase “unless the debts of the county for said purpose already equal the maximum indebtedness said county, under the Constitution, may incur,” used in Section 10520, supra, means that the county may become indebted for road purposes to the five-per-cent limit of other indebtedness mentioned in the Constitution, but does not give authority to go beyond that limit. It is difficult to conceive any real purpose which the Legislature intended to accomplish by the insertion of said clause. How the county could ever equal for road purposes the maximum indebtédness fixed by the Constitution, when the Constitution fixes no maximum indebtedness for such purpose, we are not told, and for ourselves have been unable to ascertain. But even though respondent’s contention were sound, yet the above clause would not act upon the facts of this case. It will be noted that Section 10520, supra, authorizes the county court to act “unless the debts of the county for said purpose already equal” the constitutional limit. There is no showing in this case that the roads debts of Clay County “already equal” any amount. It is the opinion of the writer that, in all probability, no useful application will ever be found for the above quoted portion of said section. As to that, however, we do not now determine, but must content ourselves- with passing only upon the point as here involved.

We, therefore, hold that Section 10520 is sufficient in its terms to authorize said county court, under the facts here presented, to submit for the approval of the' voters the proposed amount of bonded indebtedness.

II. It will be noted that Section 10520, supra, provides, among other things, that the order therein required to be made by the county court shall contain “a recital that the proceeds thereof are to be used for the improvement of the public roads of the county.” That a recital, at least, to that effect is an essential prerequisite to a valid election, under said act, we entertain little doubt. At least all will agree in saying that if the order should contain a recital to the effect that the proceeds are to be used for some purpose other than the improvement of the public roads in the county a valid election could not be held. By way of example, if the order should recite that the proceeds or a part thereof were to be used for the purpose of building a private road, all would agree in saying that the order was fatally defective. If, on the other hand, the county court had contented itself with merely following the language of the statute, all would agree in saying that the order was good. The county court, however, did not content itself with following the exact language of the statute, but it recited in said order that the proceeds are to be used for the improvement of “said public’roads of said county” and the word “said” by the language of the order itself clearly refers to the roads shown by the plat presented by the petitioners and now on file with the county clerk, a copy of which, by stipulation, is now before us.

As mentioned in the statement of facts the roads proposed to be improved, as shown by the plat, include a total of five and one-third miles of roads within several small incorporated towns or villages in said county, which mileage supplies connecting links for the rural roads approaching and passing beyond said incorporated villages; and also ninety-nine miles of road lying within the boundaries of certain designated special road districts. So that in effect, at least, said order recites that the proceeds of said bond issue are to be used in improving approximately ninety-eight and two-thirds miles of public roads in said county lying without any incorporated town or city or special road- district, ninety-nine miles of public roads in said county lying within special road districts and the said five and one-third miles of public road in said county passing through certain specified small incorporated towns or cities, all of said roads forming a connected system of county highways or roads.

If then the above mentioned short sections of proposed improved roads running through the incorporated cities and towns along the route of the proposed improvement and sections of said proposed improvement lying within the designated special road districts are “ public roads,” within the meaning of the Constitution and act authorizing said bond issue, the order of the county court was not defective and registration of the bonds should not for that reason be denied. If, on the other hand, said portions of the proposed improvement are not “public roads,” within the meaning of said constitutional provision and act, then the order was defective and there would be no warrant for now registering said bonds. A solution of the question, therefore, will be found to depend upon the definition which shall be given the term “public roads” as used'in said act.

Webster’s New International Dictionary, title “Road” says: “Road is generally applied to highways, but has a broader, generic sense including highways, street, lane, etc.”

In 37 Cyc. 16, the following definition is given: “In its broadest sense the term ‘road’ is synonymous with ‘way’ and thus applies to any place set apart and appropriated, either de jure or de facto, for the purpose of free passage, whether by public authority or by the general license or permission of the owners of the land, and also to private ways. More commonly in legal acceptation the term ‘road’ is regarded as synonymous with ‘highway.’ It is said to be a generic term for all kinds of ways, and thus includes highways, streets, alleys and lanes, ’ ’ citing many authorities.

“As a generic term it [road] includes highway, street, and lane.” [24 Am. & Eng. Ency. Law (2 Ed.), 986.]

The term “road” or highway has been many times construed to include city streets as well as rural roads. [Abbott v. Duluth, 104 Fed. 833; Northwestern Telephone Exch. Co. v. City of Minneapolis, 81 Minn. 140; Chamberlain v. Iowa Telephone Co., 119 Iowa, 619; Sanderson v. Texarkana, 103 Ark. 529; Brace v. N. Y. Central R. R. Co., 27 N. Y. 269; St. Louis v. Realty Co., 259 Mo. 126, l. c. 134.] Many other cases might be cited to the same effect. A review of the authorities will disclose that the proper definition of the term “road” in an instant case depends upon the legislative intent as revealed by the context of the act wherein the term is used.

It was the undoubted purpose of the above mentioned 1906 amendment of our Constitution to provide a way whereby counties might be authorized to raise, by bond issue, supported by a tax upon all the property in the county, funds of sufficient amount to enable the county to construct a connected system of modern roads throughout the county. This amendment is but in keeping with the general public desire for improved road conditions brought about, no doubt, by the improved facilities for travel and a fuller realization of the idea that the development or progress of the State or county is dependent in a large measure upon the amount and character of its highways. •'

The constitutional amendment, above mentioned, provides that the county may be allowed to become thus indebted for the purpose of constructing or improving the roads, etc., “therein.” Section 10520 et seq., which undertook to put into operation this additional power, provides that one hundred taxpaying citizens may petition the county court asking that a proposition be submitted to the qualified voters to bond the county for the purpose of improving the roads, etc., “in'said county.” Later in that act the term “public roads of said county” is used, but the term “of the county” as used does not, we think, materially limit the meaning of the term “in the county,” theretofore used in said section, and in the constitutional amendment.

We have seen above that the term “public road” is sufficient in its scope to include “city street,” and that such a construction may be given it if it is consistent with the true intent of the act.

Was the purpose and intent- of the constitutional amendment and subsequent legislative enactments, in enabling the raising of such large funds for the purpose of building an improved county system of connected modern roads, to provide only for improving rural roads and to make no provision for providing funds for insuring an equally good improvement upon those small connecting links of road lying within the incorporated towns or cities along the routes of those cross-county roads'? Or was it the intention that provision should be made for raising funds for a uniform connected system of improved highways so that the same might (if condition required) be made free from small stretches of mud holes or unimproved roadways where the same passed through such towns and cities ? That the latter intention is certainly consistent with the purposes sought to be subserved is, we think, very apparent. To hold otherwise would be to apply retrogressive construction to progressive legislation. Courts cannot make laws, neither should they unmake them; but whenever permissible and consistent with sound rules of construction should allow, that construction which is in keeping with the purpose sought to be obtained and not inconsistent ‘ with the progress of the times.

We, therefore, hold that the roads specified by the county court in its order are “public roads” within the meaning of said act and the constitutional amendment authorizing the same, and that the order of the county court was not defective in that regard.

III. We are aware, that the conclusion above reached does in a measure conflict with some of the language used in a portion of paragraph Y of the recent' case of State ex rel. St. Louis County v. Gordon, 268 Mo. 713, 188 S. W. 160, l. c. 165, wherein it was, in effect, saj,j that proceeds from a bond issue, authorized under the above statute, could not be used upon the streets of an incorporated city and that said cities could not share in it. Upon a careful reexamination of that opinion, it does not appear that the exact point here discussed was properly lodged in that case, but that what was said thereon was, strictly speaking, obiter dictum, in response to an earnest request upon the part of amici curiae.

Upon a reconsideration of the question we have reached the conclusion that the language therein employed is too broad. What was there said was based upon and apparently intended as in harmony with the rule announced in the cases of State ex rel. Kirkwood v. County Court, 142 Mo. 575, and Green City v. Martin, 237 Mo. l. c. 484.

With the holdings in those two cases, and the approval thereof in the recent case to which reference is above made, we now find no fault, but only undertake to say that they are, strictly speaking, not applicable to the issue now before ns. The case of State ex rel. Kirkwood v. County Court, supra,- held that a statute which undertook to authorize the county courts to pay out of. the county’s road and bridge fund a certain per cent thereof to the city treasurers of incorporated towns to be, by said municipalities, spent generally upon its roads and streets, was unconstitutional, because in violation of the constitutional inhibition against grants of public money to a municipal corporation.

In the case at bar, we are not dealing with a statute which makes a grant of public mohey to a municipal corporation but with a statute expressly authorised by the Constitution and which puts into operation a constitutional provision whereby money may be raised to build a connected system of public roads in the county. The fact that a portion of this fund as authorized is for the purpose of improving portions of city streets over which parts of said proposed improved roads run does not violate the constitutional provision against grants to a municipal corporation, but rather may be said to be in complete harmony with the Constitution, as amended in 1906, and under the plan contemplated the use of a part of the money in improving city sections of the proposed improved roads is for a county use or purpose (at least a quasi-county use or purpose), as contradistinguished from a purely municipal use, as would be the ease were the fund to be turned over absolutely to the municipality to be used as it might direct in purely local and general municipal street improvement. We think there is a vast difference between turning over a county fund to a municipal corporation to be spent as the municipality might direct for purely municipal functions (which was held in the above case would not be lawful), and the use of parts of the authorized county fund here involved, for improving small portions of city streets that are used to form connecting links in, or small sections of, a connected system of public roads of the county (which we now hold, in this case, to be permissible and lawful).

The case of Green City v. Martin, supra, held that the township trustees of a county under township organization could not be compelled, by mandamus, at the instance of an incorporated city lying within such, township, to turn over to said city a portion of said township’s special road-and-bridge fund raised by taxation in 1909 under authority of the constitutional amendment of 1908 (now section 22 of article 10 of the Constitution), because at the time said taxes were levied and became due there was no statute which authorized such division of said taxes. That decision cannot be considered as in point here, and ,does not, we think, in any manner, conflict with the conclusions reached above.

As expressly stated in the opinion, it. was from the viewpoint of the two above cases that the above mentioned discussion was made in State ex rel.'St. Louis County v. Gordon, supra. '

In so far, therefore, as the case of State ex rel. St. Louis County v. Gordon held that a county fund could not be granted to a municipality, we think the holding is correct; but in so far as it may be said to express the thought that a portion of the proceeds of bond issues as here involved cannot be used for improving portions of city streets which form connecting li/nhs in a county system of roads, we are of the opinion, for the reasons stated in paragraph II above, that such view is an erroneous one and should not be followed.

TV. We have not overlooked the argument by respondent urging, as a ground against the registration of said bonds, the point that the city and special road district authorities are said to have the exclusive control over the streets and roads within their respective territories and that, therefore, the county court is without authority to make the proposed improvements within cities and special road districts. But we do not here determine that point, for' the reason that we are of the opinion that the determination of that question is not here involved. The issue raised by this proceeding have to do solely with the validity of the bonds proposed to be issued and now presented for registration with the State Auditor.

The question as to who will supervise the proposed improvements cannot affect the validity of the bonds. That is a matter that can arise only after the bonds are issued and the money is ready for the expenditure and not here where we are concerned merely with the question of raising the money.

We may be pardoned for an expression obiter dictum to the effect that it would indeed be a peculiar situation if it should not be found that someone had the authority, at least the implied authority, to see that an authorized fund was applied to the legitimate purposes of its creation, and that we anticipate little difficulty will be encountered in applying the fund to the accomplishment of this end.

From the foregoing conclusions, it follows that our permanent writ of mandamus should issue herein. It is so ordered.

Graves, C. J., Woodson and Blair, JJ., concur; Bond. J., concurs in paragraph two and in the result; Walker, J., dissents in separate opinion; Faris, J., dissents, and concurs in separate opinion by Walker, J.

WALKER, J.

(dissenting). — I do not concur in the conclusion reached in the majority opinion that the streets of an incorporated city or town are within the purview of section 10520, Revised Statutes, 1909, and hence may be included as a part of the system of public roads of a county authorized to be improved by a compliance with said statute. It may be admitted, in general parlance, that a public road may include a street; but when either term is used in a statute, a strict compliance with which is necessary to authorize the incurring of an added burden of taxation, m'ore particularity is not only necessary but is, so far as I have been able to ascertain, uniformly employed.. Under the terminology of our statute, without unnecessarily burdening this dissent with illustrations, of which many will be found, a public road-means a highway outside of the corporate limits of a city or town, while a street means a highway within such limits. That this is true is evident, not only from the distinctive statutory use of the terms, but from the fact that upon the incorporation of a municipality it becomes, so far as its autonomy and all that pertains thereto is concerned, a separate entity. Not only its government, but, as one of the incidents of such government, its maintenance, must be provided for by those within its borders. Not the least of these is the care and maintenance of its streets. In the absence of a specific statute so providing, it has no authority to expect, demand or receive aid from the county in discharging any of its municipal duties. Nor has the county court, a purely.administrative body charged with the management of the county’s business by express statutes, any authority to extend such aid or in any way intérfere. with the conduct of the affairs of any such municipality. I am therefore of the opinion that the term “public road”, as used in the statute (Sec. 10520, supra) was not contemplated or intended to include the streets in an incorporated city or town; and, if such inclusion were permissible, that no authority is conferred upon a county court to expend any part of the funds' arising from the issuance and sale of bonds under the statute cited, in the improvement of the streets of such a municipality. It may be contended that this statute is largely remedial. Let this be granted. Under no rule of interpretation can the meaning or application of a statute, remedial or otherwise, be so extended as to authorize those charged with its enforcement to exercise power where they have no jurisdiction. A county court has none to improve the streets of an incorporated city or town, and it was not so intended by the framers of the statutes.

Faris, J., concurs.