author: FARIS, J. WOODSON, J.

text:
    THE STATE ex rel. ST. JOSEPH WATER COMPANY, Plaintiff in Error, v. LUCIAN J. EASTIN et al.
    In Banc,
    February 26, 1917.
    1. CONTRACT: Water Supply to Citizens Outside City: Abrogation by Extension of City Limits. An existing contract fixing a rate for water service and bottomed on a valuable consideration, between a private consumer wbo lives outside the city limits, and a public utility company operating within the city, is not abrogated and the parties are not bound by the city’s water rates ipso facto when the consumer is taken into such city by the extension of' its limits. [Overruling State ex rel. Waterworks Co. v. Geiger, 246 Mo. 74.]
    2. -: Between City and Water Company: Rates Subject to Alteration by City. Under the statute declaring that “when water shall be taken by private individuals from any waterworks not owned by the city, the mayor and common council shall have the right, by 270 Mo — 13 ordinance, from time to time, to fix the rates to be charged therefor,” a public water company is to be held to have contracted with the city with full imputed knowledge of and subject in all ways to all powers and restraints connoted by said statute, and is bound thereby just as fully as if it had been written at large in its franchise contract with the city, and no reduction of rates by ordinance would amount to a violation of the obligation of a special contract between the company and a consumer who stands in exact equality with other consumers. But an independent contract of a water company (which has a franchise contract with the city to furnish water to its inhabitants) to furnish water at higher rates to a consumer outside the city limits, running for a limited and reasonable term, based upon a valuable consideration not paid by city consumers, in which the consumer does not reserve to himself any right of regulation and is not authorized by any statute to regulate rates, is not abrogated or impaired by the extension of the city limits so as to include said consumer, and he does not satisfy the obligation of said independent contract by paying the rates imposed by the franchise contract upon consumers of like amounts of water residing within the city prior to such extension.

      Held, by WOODSON, X, dissenting, that the consumer in this case (State Hospital No. 2) was not a private citizen, but a public corporation, incorporated for governmental purposes, and both it and the water company contracted with each other knowing the public character of the other and their mutual rights and ■ obligations, and, independent of the contract, it became the legal duty of the water company, after the extension of the city limits, to furnish the hospital water in the same manner and at the same rates it furnished it to others within the extended territory.
    3. -: Extension of City Limits: Ordinances Applicable to Annexed Territory. The rule that in all ordinary matters and things the ordinances of an annexing city are at once and automatically extended over the annexed territory does not affect existing private contracts which were not subject to regdlation by ordinance at the time they were made.
    4. ORDINANCE: Void Only in Its Application. An ordinance or statute may be void only in its application. A rate-fixing ordinance may be valid as to all consumers except to those to whom if applied it would impair or abrogate, a valid existing private contract.
    5. LAW OF CASE: Different Suit. Whether or not it be true that the law as declared by thé court on one appeal continues to be law of that case upon a subsequent appeal, the rule has no application to .a new and separate action.
    6. -:-: Mandamus: Demurrer Sustained. If it no where appears in the alternative writ that a suit by mandamus has previously been brought, and the facts of a former suit are not set forth therein, an appeal from the ruling of the trial court sustaining a demurrer to the alternative writ is not a second appeal, and hence it cannot he held that the rulings on appeal in a former mandamus case have become the law of this second suit.
    7. APPEAL: Facts of Former Suit: Judicial Notice. The Supreme Court takes notice of a former appeal and the record thereof, but does not notice the facts and records in one action when called upon to rule another and separate action.
    Error to Buchanan Circuit Court. — Hon. Thomas B. Allen, Judge.
    Reversed and remanded {with directions).

      John E. Dolman and Vinton Pike for plaintiff in error.
    (1) The ordinance extending the city limits, if given the effect declared by the judgment below, is such, an exercise of legislative power delegated by the General Assembly, as may properly he considered a law within the meaning of the provision of the Constitution forbidding the impairment of contracts. Fed. Stat. Ann., vol. 8, p. 863, art. 1, sec. 10, par. b. (2). The effect of the passage of the ordinance passed and approved by the city of St. Joseph, July 6, 1909, as construed by the judgment in this case is to impair the obligation of the contract of 1900 between the city of St. Joseph and plaintiff in error. Under this contract the water company was under no obligation to extend its mains, except where the city by ordinance directed it to do so, and when so directed the city was obligated to rent one hydrant for each five hundred feet of such extension at an annual rental of forty dollars during the term of the contract; and also under this contract the Water Company was under no obligation to furnish water at the same rates to any but private consumers, the State Hospital being a public institution, and therefore a public consumer not supported by municipal taxes as provided in the contract did not come within the terms of the contract specifying a six cent rate for private consumers. The effect given by the judgment to the ordinance of July 6, 1909, extending the limits of the city, is to require the water company to furnish water to this public institution through a pipe line constructed partly over private property, solely by virtue of a private contract entered into in 1905 with said hospital authorities, and not by virtue of any ordinance of the city, at the same rate it is by its contract with said city required to furnish private consumers, and without the payment to it of any hydrant rental, as is required to be paid under said city contract, which rental would in this instance amount to over four hundred dollars per annum, the pipe line in question being about a mile in length. The effect thus given to. the ordinance impairs the obligation of said contract between the city and the water company of date March 7, 1900, and deprives plaintiff in error of its rights. under said existing contract to the extent stated. Walla Walla v. Water Co., 172 U. S. 1; Railroad v. Texas, 177 U. S. 66; Railroad v. Alsbrook, 146 U. S. 279; Bacon v. Texas, 163 U. S. 207; Water Co. v. Easton, 121 U. S. 38; Water Co v. Sugar Co., 125 U. S. 18; Railroad v. Tennessee, 153 U. S. 486; Light & Power Co. v. Portland, 201 Fed. 119. (3) The effect of the passage of the extension ordinance of 1909, referred to, as construed by the court below, creates a new right, viz., the right of a public institution to receive water at the same rate as a private consumer, and imposes a new duty, viz., the furnishing of water through a private pipe line constructed under a private contract, prior to the passagé of the extension ordinance, without the payment of any hydrant rental, the creation of which new right and the imposition of which new duty are substantially antagonistic to the obligations of the contract of 1900 between the city and the water company. Light Co. v. St. Paul, 181 U. S. 142; Trust Co. v. Columbus, 203 U. S. 311; Railroad v. Duluth, 208 U. S. 583.

      John T. Barker, Attorney-General, for defendants in error.
    This cause has been once decided by this court. State ex rel. v. Geiger, 246 Mo. 74. In that action plaintiff in error in this suit sued out of this court an alternative writ of mandamus against the then hoard of managers of State. Hospital No. 2 to compel payment of $2186.33 alleged to he due at that time under the same contract and under conditions exactly similar to those alleged in the petition in the present case. In fact the $2186.33 then sued for constitutes a part of the $16,-279.84 sued for in this action — the excess having accrued according to the contention of plaintiff in error since that suit was brought. The issues in the two cases were identical. When the case was in this court before, the decision was based upon the ground that “the contract of 1905 between relator and the board of managers was abrogated by the annexation to the city of the territory upon which the hospital was situated, and the rate as fixed by the ordinance must determine the price to be paid for water thereafter used hy the hospital. ’ ’ It was further ruled that there was nothing in the contract that prevented the application of the rate fixed by the ordinance. It will thus be seen that the precise question previously decided upon the demurrer to respondent’s return, is raised for decision in this case by respondent’s motion to quash the alternative writ. The decision previously rendered is “the law of the case” and.will be held to preclude a subsequent examination of the same issues between the said parties. . “Where a court has once declared the law in a case, such declaration continues to be the law of that case even on a subsequent appeal.” Railroad v. Baker, 4 Ind. App. 66; County Comrs. v. Pritchett, 85 Ind. 68; Richmond St. Ry. Co. v. Reed, 83 Ind. 9; Howe v. Fleming, 123 Ind. 262. ‘ ‘ The law of the case consists, not in the reasoning of the court or in the illustrations given, but in the propositions of law actually decided and applicable to the facts in judgment.” Heidt v. Minor, 113 Cal. 385. “A rule once made in a case by an appellate court, while it may be overruled in other cases, in binding both upon the inferior court and upon the appellate court itself. In a subsequent proceeding neither the lower court nor the court making the rule can depart from such ruling. A ruling so made is said to be the law of the ease.” Hastings v. Foxworthy, 45 Neb. 676; Sewing Machine Co. v. Leslie, 118 Fed. 557; Teakle v. Railroad, 36 Utah, 29; Malones Committee v. Lebus, 96 S. W. (Ky.) 519; Westerfield v.' Insurance Co., 157 Cal. 339.
   FARIS, J.

— This is a proceeding by mandamus which comes to us on the writ of error of relator who was cast below, to compel defendants, who are defendants in error here, to audit and pay a certain account alleged to be due plaintiff in error for water delivered to State Hospital No. 2, of which defendants in error compose the board of managers.

The facts are few and simple. Those upon which the case turns, run thus: Relator, St. Joseph Water Company, is a public service corporation, organized under the laws of the State of Missouri. In the year 1900 an ordinance was passed, ratified by an election and accepted by said St. Joseph Water Company (hereinafter for brevity called relator), whereby the latter agreed to furnish water for a term of twenty years to the city of St. Joseph and to those of the inhabitants thereof who use water in specified large quantities, at the rate of six cents per'thousand gallons. (Certain more definite details of this franchise contract will be hereafter set forth). In the year 1905 relator entered into a contract with said hospital, of which, as stated, respondents composed the board of managers, wherein it was agreed that connections should be made with the mains of the hospital by a water main of relator and water furnished to the hospital for a term expiring December 31, 1915, at the price of ten cents per thousand gallons. More certain and definite details of this contract, which was by relator in all things performed, will be hereafter specifically set out. At the time of the making of the contract between relator and the hospital, the grounds and buildings of the latter were situated outside of and about one mile from the city limits of the city of St. Joseph. In 1909, four years after the making of the contract by relator with the said hospital to furnish the latter water, the city of St. Joseph, by an ordinance duly passed, extended its city limits so as to take in and include the whole of the territory occupied by the hospital. Whereupon, defendants in error (hereinafter called defendants for brevity) refused longer to abide by their contract to pay ten cents per thousand gallons for water, but insisted that the extension of the city limits so as to include the grounds and buildings of the hospital at qnce put in force the rate of six cents per thousand gallons, which prevailed as to large users in the hospital’s class, pursuant to the franchise contract, in other parts of the city of St. Joseph. Thereafter, and from July, 1910, till December 31, 1915, when said private contract expired by its own limitations, defendant refused to pay the relator more than the sum of six cents per thousand gallons for water, and relator, .with properly pleaded protest and duress, accepted said sum, but after the expiration of the full term of ten years, brought this action of mandamus to compel defendants to order the payment of the sum of $16,279.84, being the alleged balance due, at ten cents per thousand gallons for water furnished after deducting the amount paid as aforesaid at the rate of six cents per thousand gallons.

Upon relator’s filing in the circuit court of Buchanan County its petition aptly setting forth all of the above facts and more, an alternative writ of mandamus was issued, which likewise set forth all of said facts aptly. ■To this alternative writ defendants demurred, which demurrer, being by the court and the parties treated as a motion .to quash the writ, was sustained, and plaintiff sued oat its writ of error, and the case is now here for ruling upon the sole question of the correctness of the action of the court nisi in sustaining said demurrer.

Under the terms of the franchise contract made between relator and the city of St. Joseph, which is a city of the second class, it was agreed that relator shall maintain five hundred fire hydrants in said city, for which the city agreed to pay an annual rental of $40 each; that relator shall maintain twenty-six public drinking fountains, for which the city shall annually pay the relator the sum of $50 each. It is further in said contract agreed that relator shall from time to time, as it may he by ordinance directed, extend its mains over the streets, highways and public lands of said city, and for every five hundred feet of mains extensions there shall be erected by relator and paid for, by said city a fire hydrant, at the annual rental aforesaid. It is further agreed therein that water shall be furnished to all private consumers in said city and no partiality or inequality in rates shall be permitted: /

The private contract above referred to and entered into between relator and the predecessors of defendants as members of the board of managers of said hospital, provided in pertinent substance that a six-inch main should be laid from the then end of relator’s water mains on Brady Street, for a certain described distance, and that thereafter an eight- or ten-inch main should be laid to connect with the six-inch main on the grounds of the hospital; that the hospital should do all excavating and refilling of the trenches necessitated, while relator was to furnish all material and labor in laying said main; that upon the grounds of said hospital a six-inch meter should b.e furnished and set, which meter should have by-passes and gate-valves for the purpose of permitting the passing by of water free without measuring same through said meter, 'and inferably for fire protection purposes in said hospital. Relator also agreed to extend its mains into the hospital grounds and to erect thereon between five and ten fire hydrants, according- as the hospital necessities might eventually require, and to lay in said hospital grounds, if necessary, three thousand feet of pipe.

It is averred in the petition and in the alternative writ that all of these things were done; that relator expended in the extension of its mains the distance of a mile, which was necessary, and in constructing its branch line. and mains and in putting in the hydrants on the grounds of said hospital, the sum of more than $12,000; that in said extension of relator’s mains relator was compelled to and did build a branch main, which it is stated ran for its entire length of a mile over private property outside of the city limits of said city of St. Joseph, and along which branch main for the distance aforesaid no hydrants were placed and along which none could be placed from which it would ever receive any revenue whatever from the city.

It is further alleged that in the ordinance which was approved on'the 6th day of July, 1909, by which the limits of the said city were extended so as to include the grounds and buildings of said hospital, no provision was made for regulating the rates or the supply of water to said hospital; nor has any such provision so regulating such water supply, or the rates to be charged said hospital tbei'efor, ever been made by any ordinance, or in any other manner, nor has any way been provided for compensation to relator for any loss or impairment of its, contract obligation aforesaid, with said hospital.

It is contended by relator that the effect of the ordinance of the city of St. Joseph which extended the city .limits so as to include the grounds and buildings of said hospital with which relator had a ten-year private contract, in the light of the construction placed on said ordinance, when same is read in connection with the provisions of the ordinance granting relator a franchise, is to impair and abrogate said contract between relator and said hospital, which said abrogation is contrary to and in violation of both article 5 and section 1 of article 14 of the Amendments to the Constitution of the United States. Wherefore, relator prayed for the issuance of a peremptory writ of mandamus, and an alternative writ 'having issued as stated, defendants demurred thereto, which demurrer being treated by the court nisi and the parties hereto as a motion to quash the alternative writ, was sustained, and the case is before us on appeal to contest the correctness of the ruling of the lower court in said behalf. The question agreed to be in issue as well as such other facts as may serve to illuminate that question, will be set forth in requisite detail in our opinion.

I. The concrete single point up for ruling is this : Is an existing contract fixing a rate for water service and bottomed on a valuable consideration, between a private consumer, who lives outside the city limits, and a public utility company operating in a neighboring city, abrogated • and are the parties bound by the city’s water rates ipso facto when the consumer is taken into such city by the extension of the city limits thereof?

The question at issue is plain and concise, and upon the facts conceded can be fully ruled. That it is a nice and most" difficult one is in no way attributable to the form in which it is presented. It would have been as nice a one' if it had come up in an action for breach of contract, or indebitatus assumpsit, so we will not of our volition debate a question not mooted, but take the case as we find it; since the applicability of the remedy chosen, if the law upon the facts otherwise allow, is not. questioned.

Approaching this question with full knowledge that the case of State ex rel. St. Joseph Waterworks Co. v. Geiger, 246 Mo. 74, held otherwise, we are yet constrained to disagree from the views taken by this Court in Banc in that case, and to hold that such a contract is not abrogated- The holding in the Geiger case was largely bottomed upon a quotation from the excellent work on corporations of the late Judge Thompson, wherein but a part of what the learned writer there’said is quoted. Italicising for emphasis and distinction what is omitted from this writer, we quote in full:

“Until the Legislature or other body having the right to prescribe the rates to be charged by corporations, whose business is affected with a public interest, has exercised this power, the rates are the subject of contract between the corporation and its patrons. And this is the case where the Constitution makes it the duty of the Legislature to prescribe reasonable maximum rates, but the Legislature has 'failed to do • so. Since, however, the franchise is taken subject to regulation by the State in the exercise of its police power, the conclusion seems a sound one that the corporation cannot enter into a binding contract with a patron extending beyond the time when the Legislature or municipal council duly empowered thereto may fix the rates. It is plain that a public-service corporation able to forestall legislative action by contract for a limited time could do so for so long a time as to render futile any legislative control. It has been held, however, in a case where a water company’s franchise fixed the rates for service, omd an ordinance conferred on the company the privilege of laying mains in additions outside the city limits, that independent contracts to furnish water to persons in these outside districts at higher rates were neither abrogated nor affected by the subsequent incorporation of these districts into the city proper.” [3 Thompson on Corp. (2 Ed.), sec. 2953.]

We find no manner of fault with this excerpt, but merely content ourselves by saying that the portion of it quoted in the Geiger case does not apply in our opinion to the facts in the instant case, and' by undertaking to show with the requisite quantum of deference, that it did not apply in that case. With the additional portion italicised by us and now for the first time in this behalf quoted, we of course find no fault, for it states, we submit, the applicable' rule concisely, clearly, plainly.

We concede as a premise, that a city of the second class, such as St. Joseph is, may change and regulate, raise and lower water rates. In fact, when relator was granted, pursuant to a vote, the franchise contract evidenced by the ordinance of the year 1900, the below statute governing cities of the second class was and long had been in force therein, to-wit:

“The common council shall have the exclusive right to erect, maintain and operate waterworks within the limits of the city, and to regulate the same; to prescribe the rates at which water shall be charged to the inhabitants of such city when taken from said works, and acquire, by purchase, donation or condemnation, suitable grounds within or without the city, upon which to erect waterworks, and the right of way to and ’ from said works, also the right of way for laying water pipes within the limits of said city, all,of which shall he done in such manner' as prescribed by ordinance: Provided, that the mayor and council may, in their discretion, grant the right to any person or persons to erect waterworks and lay down pipes for the use of said city and its inhabitants upon such terms as the common council may by ordinance prescribe: Provided, that such right shall not extend for a longer period than twenty years, and shall not be granted nor shall be renewed unless by the consent of a majority of the qualified voters of said city, to be ascertained at an election held for such purpose: Provided, that when water shall be taken by individuals from any waterworks not owned by such city, the mayor and common council shall have the right, by ordinance, from time to time, to fix the rates to be charged therefor.” [Sec. 9081, R. S. 1909.]

It is elemental that relator contracted with the city of St. Joseph with full imputed knowledge of, and subject in all ways to all of the powers and restraints connoted by the above section, and that it is bound thereby just as fully as if these provisions were written at large in its franchise contract with the city of St. Joseph. Having contracted in the light of the city’s power of regulation, no reduction of rates would amount to a violation of the obligation of a contract, so far as this question goes as between the relator and the city, or as between relator and any private consumer residing in such city, and standing as regards relator, in exact equality with other consumers in the city. Illustrating this rule and sharply illuminating the extent of our concession, as to its far-reaching character, we note that in a case of seeming hardship it has even been applied in a criminal prosecution by the highest court in the land. [Armour Packing Co. v. United States, 209 U. S. 56.] In that case plaintiff in error, the Packing Company, being indicted for accepting a rebate from a common carrier, pleaded in defense the binding obligation of a contract for a rate less than the existing published tariff, which contract was made prior to the establishment, under autliority of the Interstate Commerce Act, of such tariff rate. But the conviction, was. sustained, notwithstanding, the Supreme Court holding (1. c. 82) that: “If the shipper sees fit to make a contract covering a definite period for a rate in force at the time, he must be taken to have, done so subject to the possible change of the published rate in the manner fixed by statute, to which, he must conform or suffer the penalty fixed by law.”

Likewise, it was held in the case of Des Moines v. Des Moines Waterworks Co., 95 Iowa, 348, where a public utility company had a contract for water service with both a city and an, adjoining town, that upon the extension of the city limits over the town, the rates of the city applied to the inhabitants of the town and the contract of the utility company with the absorbed town for a different rate was abrogated. The books are fairly full of cases like the above (People ex rel. Chicago v. Chicago Tel. Co., 220 Ill. 238; Peterson v. Tacoma Ry. & Power Co., 60 Wash. 406; Detroit v. Detroit United Ry. Co., 173 Mich. 314), wherein we submit, however, a palpable difference is manifest distinguishing the above class of cases from the instant one. One or two cases have been found wherein a similar rule was made upon a state of facts so different from the facts held in judgment in the Des Moines case, as possibly to call for a different rule, or a different reason for a similar rule. [Indiana Ry. Co. v. Hoffman, 161 Ind. 593, and cases following it and cited in L. R. A. 1916 — A, 1072.]

But be this as may be, we think it manifest that hone of these cases rule the instant one upon the facts up for judgment. We have set them out at so great length merely to emphasize and make plain the differences existing between them and the case at bar. We are not called on to criticise any of these cases; they seem to have been justly ruled, and we may nontent ourselves by distinguishing them. We can even find a fairly conclusive and satisfying reason for the difference in the rules applied. For the above were cases wherein the public utility had franchise contracts with both the annexed and annexing municipality. There' existed therefore the power to regulate public service rates as to each of such existing franchise contracts, in both the annexed and annexing municipality. So, the franchise contracts in each municipality having been made with imputed reference to the power in each municipality to .regulate rates, it follows that unless the rate in the annexing municipality was confiscatory (and being an agreed rate this contingency would doubtless be obviated by estoppel), no very serious objection could arise or be urged against applying the rate of the annexing city, rather than that of the annexed municipality. But in none of the above cases was there a special contract between the private consumer and the public utility company, entered into for a valuable consideration, as in the instant fiase. There was or seems to have been, in all of them a franchise contract, or ordinance with either the county in which the annexed territory lay before annexation, or with the town itself which was annexed; or, else, the utility company affected was a railroad organized as a common carrier by the State, which granted it a charter, and which charter carried as an inherent adjunct the power in the chartering authority to regulate the rates charged when and wherever such carrier might operate. [Indiana Ry. Co. v. Hoffman, 161 Ind. 593, and cases •following it, supra.] In all such cases the franchise contracts which were so abrogated were made with the governing authorities of the annexed or absorbed municipality, and were concededly for the benefit of all of the inhabitants of such town, but nevertheless by statute or constitution these contracts were made subject to the power of rate-regulation by the authorities which granted them to the public service company affected. [Armour Packing Co. v. United States, supra.] The situation presented by them does not turn as in the instant case, upon a private contract running for a limited and reasonable term, made with a private consumer for a valuable 'consideration, which consumer, by the terms of his contract, had not reserved to himself within the contract period any right of regulation, and who had behind him no statute retaining for him any poioer of rate regulation.

The holding announced in the case of Rogers Park Water Co. v. Fergus, 178 Ill. 571, laying down the rule governing applicatory .rates in territory theretofore within a town which has been annexed to a city having a different rate, seems to be bottomed on correct principles; to nicely state the rule, and to put it upon reasoning at once logical and fair, and to be in consonance with other rules which affect and modify the situation. The above case held that the annexation of a town to a city, which city possessed statutory power to regulate rates of public utilities, authorized such city to reduce the rates which were being charged in the absorbed town, pursuant to a contract with the latter having thirty years to run, below the rates specified in such contract. In reaching this ruling the Supreme Court of Illinois said that the town ordinance fixing for thirty years the rate to be charged did not constitute an irrevocable contract, and that it was not a property right, but that by it the inhabitants of the town were only bound (in any event, ivhether annexed or not, it might well have added) to pay the rate fixed by the thirty-years ordinance, so long only as such rates, for that they had become unreasonable, might not be reduced by another ordinance. 'This case was affirmed by the Supreme Court of the United States. [Rogers Park Water Co. v. Fergus, 180 U. S. 624; Freeport Water Co. v. Freeport, 180 U. S. 587.]

But it is clear to us that the instant case does not, upon its .plain facts, fall within the rule so clearly laid down above, nor do the principles announced rule it. On the contrary this ease falls within the principle enunciated in the case of Denver v. Denver Union Water Co., 41 Colo. 77, wherein it was expressly ruled that the annexation to the city of territory outside the city limits did not have the effect of abrogating individual contracts made by the water company before annexation, with private consumers residing in such annexed territory. This view is likewise in full accord with the rule deduced by the learned author of Thompson on Corporations, as set out above herein and emphasized by italics, in the excerpt which we quote from his most excellent work.

There is manifestly not much force in the reasoning — as a basis for the rule of abrogation — that since, in all ordinary matters and things, the ordinances of an annexing town or city are at once and automatically extended to and over the annexed territory, it follows that a rate-ordinance inevitably and without exceptions doth the like. Such a rule, we concede (St. Louis Gaslight Co. v. St. Louis, 46 Mo. 121; 28 Cyc. 215), exists and makes the annexing city’s ordinances to apply automatically and immediately to the annexed territory, save and except in such matters wherein application of the rule would affect existing private contracts by impairing or abrogating them. [Cloverdale Homes v. Cloverdale, 62 So. 712.] An ordinance which would by the construction put on it have the effect to annul an existing private contract (which contract was not when made subject to regulation by the rate-making power) would be void because violative of the provision of the organic law forbidding the passage of a law violating the obligation of contracts. The ordinance itself would not of course be wholly void, but touching -its application to those inimically affected by such a construction it would be void and -non-operative in the particular aspect by which it made nugatory an existing and otherwise valid contract.

The limits-extension ordinances here is the usual one. It is intrinsically proper and seemingly beneficent. It becomes bad as against the organic law only in the event that the construction contended for by defendants is upheld. We have refused to uphold the construction which defendants urge. If we had done so, it is contended that such a construction would have involved a Federal question. As we have felt constrained upon the law and the facts to hold that the contract is valid and binding, the extension ordinance notwithstanding, and that the contract’s obligations are not annulled by the piuvisions of the ordinance, that is merely tantamount to saying in the language of the Supreme Court of the United States that the contract is' “absolutely unaffected by the ordinance, which it is asserted brought about the impairment.” [St. Paul Gas Light Co. v. St. Paul, 181 U. S. l. c. 149; Mercantile Trust Co. v. Columbus, 203 U. S. 311.]

We are not called on to consider whether a private contract for supplying water for ten years to a private consumer residing a mile from the company’s mains, wherein connection was made at an expense to the water company of more than twelve thousand dollars, at ten cents per thousand gallons, was or was not so unreasonable as to have warranted a reduction upon proper and timely application therefor. That is not this case. We are only holding here upon the case made, that the contract was upon'its face valid and binding (State ex rel. v. Geiger, 246 Mo. l. c. 100), and that it was not abrogated by the ordinance extending the city limits of the ■city of St. Joseph so as to include' the State Hospital for the Insane, and that upon the admitted allegations of the alternative writ the demurrer should have been overruled. This view results in overruling the case of State ex rel. v. Geiger, 246 Mo. 74, so far as the same may conflict with our views here.

II. It is contended by the learned Attorney-General, as counsel for defendants, that, we are bound by decision in the Geiger case, supra; that right or wrong that case should rule this; that though we are at liberty to depart from that ruling in a new case or another similar case, we cannot do so here, because “where a court has once declared the law in a case, such declaration continues to be the law of that case even on a subsequent appeal.”

We find no fault with the rule*, and shall not take time to either re-examine it or- quarrel with it. We may concede it for the purposes of this case, and stop to inquire neither as to its correctness nor as to the universality of its application unmodified. But the difficulty we find in applying the rule to the facts here is that the rule fails to fit the facts. This case is here upon a sustained demurrer to the alternative writ. Such facts and no more as are set forth in such writ, are for the purposes of this appeal, the status of the pleadings considered, conclusively presumed to he the facts. of the case. If' nowhere appears in the alternative writ that this action has ever been here before. Therefore, this is a new action and not a second appeal; the parties are new and the subject-matter of the action is new, so far as we are now given to know. If, as counsel for defendants urges, the sum of $2186.33, now included in the sum demanded, was embraced in a former action which was bottomed on ah identical question of law, and between parties individually distinct but officially holding the same positions as do the parties herein, that matter can no doubt be adjusted when the answer comes in, as cán other kindred matters. This is not a second appeal of the former case, but another case. The facts in the former case, we repeat, are not set forth in the writ here attacked, neither does it appear in such writ that there ever was such a former suit. We take notice of a former appeal and of the record thereof (Keaton v. Jorndt, 259 Mo. 179); but we do not notice the facts and records in one action when called on to rule another and separate one. [Spurlock v. Railroad, 76 Mo. 67; Banks v. Burnam, 61 Mo. 76; 16 Cyc. 918.] So as this case as now presented comes to us as an entirely new case, we are not bound by the law thereof- as announced in the case of State ex rel. v. Geiger, supra, as “the law of the case,” within the purview of the rule urged on us, and so as to render that rule binding on us whether it be in our view rightly ruled or not. But these matters should not prove difficult of solution or adjustment upon the trial of the case upon its merits.

Let it be reversed and remanded with directions to the learned trial court to overrule the demurrer to the alternative writ and to proceed with the case as counsel therein may be advised they ought to proceed, consistently however, with the views expressed.herein.

All concur except Woodson, J., who dissents in separate opinion.

WOODSON, J.

(dissenting) — I dissent from the majority opinion for the following reasons:

The State Hospital No. 2, located at St. Joseph, is a public corporation of the purest character — without an element or ingredient partaking of a private character.

Under these facts, the Water Company must be considered in the light of contracting with a public institution, and one of the State — incorporated, if not for governmental, for administrative purposes — in my opinion, the former. [State ex rel. v. Geiger, 246 Mo. 74, l. c. 97.]

State Hospital No^ 2, being thus a public corporation, contracted as such with the company for water, both knowing the public character of each other, and their mutual rights, duties and obligations, as then existing or as might thereafter be created by law. So independent of the contract, after the extension of the city limits, it became the legal duty of the company to furnsh the hospital with water in the same manner and for the same rates that it furnished it to other persons within the extension. That duty was as obligatory as if a provision to that effect had been inserted into the contract itself. Such is the holding, as I understand it, of the authorities cited in the majority opinion.

Under that view of the case, the water contract, by agreement of parties, terminated and ceased to be binding and operative upon the extension of the city limits, embracing the hospital; otherwise, we must conclude and hold that at the time the contract was entered into, it was the intention of the parties that the State through said board of managers impliedly waived this valuable right to demand and receive water from the company just as other consumers had the right to do. In other words, counsel for the company contend, in effect, that after the extension of the city limits, it was under a two-fold duty, separate and independent of each other, to furnish water to the hospital, namely, a legal duty and a contractual duty; yet had the hospital insisted, at that time, or even now, should it insist upon the company performing its legal duty by laying mains, pipes, etc., as provided for by its charter, and to furnish water through same to it, the. latter would be the first one to protest and insist that such a demand was unreasonable, unjust and oppressive, notwithstanding the fact the company is still furnishing water through the mains laid under the contract, which has long since expired, and still located upon what it designates as private property, but in fact public property — the grounds of the institution.

In my opinion such a demand of the hospital would be unreasonable, unjust and oppressive, for the reason that it was clearly the intention of the parties that, when the city limits were extended so as to include the Hospital, the company should continue to furnish water through those mains, not in the performance of its contractual duties to the hospital, but in the performance of its legal duty. Otherwise, the board of managers could have the mains removed from the grounds and compel the company to lay others, under its charter obligations, which was never contemplated by either party, but both understood that as soon as the extension should be made the contract was to cease and the legal duty of the company to furnish water was to begin.

For these reasons I dissent.


source: Caselaw Access Project

author: GRAVES, C. J.

license: Public Domain

text:
    THE STATE ex rel. STEPHEN C. WOODSON v. HARRIS ROBINSON, Judge of Circuit Court, and FRANCIS E. PARKER.
    In Banc,
    February 26, 1917.
    1. ELECTION CONTEST: Jurisdiction:' Waiver. Jurisdiction of the subject-matter cannot be waived; and the circuit court does not obtain jurisdiction of an election contest unless .notice is served upon contestee within the time prescribed by the statute. The eontestee does not waive notice or confer jurisdiction oh the court
      to try the contest, by duly and specifically challenging the jurisdiction and power of the court to proceed with the contest under an alleged notice, or by thereafter filing a counter notice of a contest of his own after the time for serving notice on him has expired.
    2. -: — : -Service of Notice: Must be by Officer. Notice in an election contest operates in the nature of a petition and writ in an ordinary civil action, and can be served only by the officer of the court wherein the -contest is instituted. It cannot be served, any - more than can a summons in an ordinary civil action, by some private person or by contestant himself. The circuit court does not obtain jurisdiction to try an election contest upon a notice served by a private person.
    3. -: Interlocutory Notices: Service by Private Person. Section 1791, Revised Statutes 1909, declaring that “service of any notice required by this chapter may be made by any sheriff, marshal or constable, or by any person who would be a competent witness,” does not refer to the notice or summons which brings a party into court for the purpose of forcing him to submit to a trial, such as a defendant in an ordinary civil action or a contestee in an election contest, but refers only to interlocutory notices," that is, notices required to be given in the progress of a cause.
    4. -: -: Posting Notice in Clerk’s Office. The failure of a private person to find contestee in an election contest will not suffice as a basis for a substituted service until the effort to get personal service has failed, and that effort must be made by an officer of the court, and cannot be made by a private person; and a posting of the notice in the office of the circuit clerk, after unavailing efforts by a private person to obtain personal service, does not bring contestee into court, and gives the court no jurisdiction to try the case.
    Prohibition.
    Writ issued.

      H. S. Julian, E. H. Wright, T. A. J. Mastin, A. L. Cooper and J. G. L. Harvey for relator.
    (1) The requirements of the statute as to notice are jurisdictional and must be complied with. Election contest proceedings are everywhere regarded and treated as special statutory proceedings. State ex rel. v. Hough, 193 Mo. 643. They are not civil suits. Castello v. Court, 28 Mo. 277; State ex rel. v. Spencer, 166 Mo. 279; State ex rel. v. Hough, 193 Mo. 643. The courts inherently possess no jurisdiction of election contests and where the statutes confer such jurisdiction upon the courts, they possess jurisdiction only as defined and limited by statute. Said jurisdiction is not general, but is special and restricted. 15 Cyc. 394. Accordingly it is uniformly held that in election contests statutory provisions in relation to time of notice are mandatory requirements, compliance with which is essential to the court’s jurisdiction, and that if notice has not been given as required by statute the court has no jurisdiction, and must dismiss the proceedings. Castello v. Court, 28 Mo. 259; Wilson v. Lucas, 43 Mo. 290; Bowen v. Hixon, 45 Mo. 340; Higbee v. Ellison, 92 Mo. 13; Montgomery v. Dormer, 181 Mo. 5; 7 Ency. PI. & Pr., 390; 15 Cyc. 400. (2) The statutory requirement that the notice be served within a prescribed time is not in the nature of a statute of limitations, for the reason that the requirement does not affect merely the remedy, that is to say the manner of enforcing a legal right, but the requirement is a part of the right itself which the statute creates and makes conditional, the condition being that the notice be served within the specified time. And, therefore, the right does not exist unless the condition is performed. A mere limitation is a defense to be taken advantage of, or not, as the defendant may please, but where a statute creates a new right and makes the right depend upon the performance of a condition, performance of the condition is the basis of the. right and a plaintiff, who asserts' the right, must both allege and prove performance of the condition. Barker v. Railroad, 91 Mo. 86; McIntosh v. Railroad, 103 Mo. 131; Matthieson v. Railroad, 219 Mo. 549; Chandler v. Railroad, 251 Mo. 600. (3) A notice of contest, therefore, must show on its face when the official count of votes was completed in order that it may appear whether service of the notice was made within the statutory period. Crisler v. Morrison, 57 Missi 791. (4) The attempted service of process was void and of no effect, for the reason that the party attempting to. make service was not an officer and there is no authority in law for anyone who is not an officer to serve original process. Ross v. Fuller, 12 Yt. 265. Where you have constructive or substituted service the statute must be strictly and accurately followed. The contestant alone was empowered to post up the notice. The statute does not allow or permit it to be done by an agent, servant or by an attorney. See. 5924, R. S. 1909; Myers v. McRay, 114 Mo. 382; Quigley v. Bank, 80 Mo.-289; Charles v. Morrow, 99 Mo. 638; Bank v. Suman, 79 Mo. 531; Steward v. Stringer, 41 Mo. 400. Where the statute specifically prescribes the character and manner of service, it is strictly construed. Hyde v. Goldsby, 25 Mo. 34; Charless v. Mornig, 1 Mo. 537; Bland v. Jameson, 3 Mo. 52; Smith v. Rawlins, 25 Mo. 408; St.' Louis v. Goebel, 32 Mo. 259; Huett v. Weatherby, 57 Mo. 376. (5) The notice of contest should be quashed because it fails to specify the grounds upon which contestant intends to rely, and though it attacks the qualifications of many voters it fails to state any of their names and the objections to them. It has been held that the statute relating to contested elections is a code unto itself, and that the code of civil procedure does not apply. State ex rel. v. Spencer, 166 Mo. 279; State ex rel. v. Hough, 193 Mo. 615. (6) Contestee neither did nor could waive these jurisdictional objections by filing his counter notice of contest. Keller v. Chapman, 34 Cal. 640; State ex rel. v, Spencer, 166 Mo. 286.

      J. M. Johnson, Park & Brown, George A. Neal and Clinton A. Welsh for respondents.
    (1) The. circuit court of Jackson County has jurisdiction of the subject-matter of an election contest for the office of judge of the county court of Jackson County. Sec. 5924, R. S. 1909; State ex rel. v. Hough, 193 Mo. 651. (2) Notice of contest was given by respondent Parker within twenty days after the votes had been officially counted. Secs. 5924, 6150, R. S. 1909; Bowen v. Hixon, 45 Mo. 340; 3 Cyc. 408; Barnes v. Gottschalk, 3'Mo. App. 120. (3) The notice of contest designated and specified the proper term of court. Secs. 5924, 5928, R. S. 1909; Státe ex rel. v. Evans, 184 Mo. 632; State ex rel., v. Plough, 193 Mo. 647. (4) By filing motions in the nature of a demurrer and especially by filing counter notice of contest and cross charges in the nature of an answer and cross petition, petitioner waived any insufficiency of the notice in point of time or manner of service to give the court jurisdiction over his person. In re Ford, 157 Mo. App. 156; Thomasson v. Insurance Co., 217 Mo. 485; State ex rel. v. Oliver, 163 Mo. 679; 3 Cyc. 504; Bankers Life Assn. v. Shelton, 94 Mo. App. 634; 1 Corpus Juris, 37, 42; State v. Rombauer, 140 Mo. 121; Rippstein v. Insurance Co., 57 Mo. 86; Bank v. Griffith, 192 Mo. App. 452; State ex rel. v. Spencer, 164 Mo. 48; State ex rel. v. McElhinney, 199 Mo. 67. (5) The notice of contest states gvood and sufficient grounds for contest under the statutes and decisions of this court. Moffatt v. Montgomery, 68 Mo. 162; Gumm v. Hubbard, 97 Mo. 311; Soné v. Williams, 130 Mo. 530; State ex rel. v. Evans, 184 Mo. 632.
   GRAVES, C. J.

— This is an original action in prohibition. At the November election, 1916, the relator', Stephen C. Woodson, and the respondent, Francis E. Parker, were opposing candidates for the office of county judge of the western district of Jackson County, Missouri. This district was co-extensive with the municipality of Kansas City, Missouri, and therefore the Board of Election Commissioners of said city had full control of the returns from such election for said office. > In the brief it is stated that Woodson received some 3000 more votes that his opponent Parker, but for the question involved herein this is not a material fact. It would only bear upon the good faith of the contest, a matter urged, but which we deem immaterial. Respondent’s brief deniés a majority so large, and avers such majority to be 700. Suffice it to say that Woodson got the certificate of election, and Parker has attempted to contest his election. The- respondent Judge Robinson had fully indicated his purpose of proceeding with tfie contest case, when relator Woodson applied here for our writ of prohibition. In due course our preliminary rule in prohibition was granted and to this rule return was duly made by respondent. Later we permitted an amendment, and this was met by subsequent return. The facts stated in the return were met by proper reply, and counsel for both parties, with commendable promptness, have agreed upon the exact facts of the case. The stipulated facts are:

“It is hereby stipulated and agreed by and between petitioner and respondents in the above entitled cause, through their respective attorneys, that the following may be' taken and considered by this court as a statement of facts in this controversy:.
“This is a contest over the office of Judge of the County Court of Jackson County, Missouri, for the western district of said county. The boundaries of said district within which candidates for said office are voted for are co-extensive with the corporate limits of the city of Kansas City, Missouri. Petitioner Woodson was the Democratic candidate and respondent Parker the Republican candidate for said office at the general election held on November 7, 1916.
“The judges and clerks of election for each precinct in the various wards within said city .counted the votes cast at said election on November 7, 1916, at the close of the polls and filled out a sheet known as the ‘Tally Sheet,’ which sheet showed the total votes counted by said judges and clerks for each candidate in the respective precincts of the various wards in said city. This tally sheet and other records were delivered to the election commissioners by said judges and clerks on- November 7th and 8th, 1916. The Board of Election Commissioners of said city, pursuant to the provisions of section 6149, Revised Statutes 1909, began to make their canvass of said returns. First, they took the tally sheets as returned to them by said judges and clerks and called the totals as shown on said tally sheets to clerks in the office. The said clerks were furnished with large sheets of paper containing in proper columns the names of each person running for office and a column for the votes of each candidate for each precinct in said city. When the totals of the precincts were called from the tally sheets, the clerks placed the number so .called in the proper column until all the precincts of a ward were recorded. Then the totals of the precincts so recorded were footed up, showing the total of each candidate for the entire ward. The total votes of the wards were footed up as above, and marked down in pencil on Saturday morning, November 11, 1916.' On Saturday, November 11, 1916, the election commissioners opened the envelopes containing the absentee votes persuant to Session Laws of 1913, page 323, and added the absentee votes of each precinct to the total vote of the precinct as copied from the tally sheet as above. Then the grand total of votes counted for each candidate in each ward was ascertained by adding the total of the precincts as shown by the tally sheet to the absentee vote. The grand total of the votes for each ward was so named and entered of record in lead pencil on November 12,1916. On Mon day, November 13, 1916, the total of the votes of the candidates by wards which had theretofore been entered in pencil were changed.in red ink by said clerks. On' said Monday, November 13, 1916, the work of recapitulating the votes and arriving at the grand total of votes cast for the different candidates in the entire city of Kansas City was begun, and said totals were completed and the grand total of votes for each candidate in the entire city arrived at on Tuesday, November 14, 1916. On said 14th day of November, 1916, the Board of Election Commissioners executed and entered of record a certificate in the following words:
‘Office of Board of Election Commissioners of Kansas City, Missouri.
“ ‘To the County Court of Jackson County, Missouri.
“ ‘We hereby certify that the Board of Election Commissioners of Kansas City, Missouri, has canvassed 'the returns of the general election held within the boundaries of Kansas City, Missouri, on ■ the 7th day 'of November, 1916, and do now certify that the above and foregoing is a full, true,- competent and correct statement of all the votes cast -at said election in the various precincts and wards of said city for the various candidates above set forth and specified.
“ ‘IN TESTIMONY WHEREOF the Board of Election Commissioners of Kansas City, Missouri, has caused this certificate to be signed by its chairman and secretary respectively, and the seal of its office to be hereunto affixed this 14th day of November, A. D. 1916.
“ ‘Rush C. Lake, Sam Sparrow,
Secretary Chairman (Seal),
Board of Election John P.’Mullane,
Commissioners. B. W. Welch/
“On November 15, 1916, said Board of Election Commissioners caused all of said sheets and records to be delivered to the County Clerk of Jackson County, Missouri, and thereafter thé Clerk of the County Court of Jackson County issued petitioner Woodson a certificate of election as required by the statutes of Missouri.
“On December 4, 1916, respondent Parker served notice of contest upon petitioner Woodson, which notice is attached to and made a part of the petition for writ of prohibition.
“On December 23, 1916, petitioner Woodson served upon respondent Parker a counter notice of contest, which said counter notice is attached to and made a part of return of respondents.
“This agreed statement of facts is made and entered into subject to all objections by either party as to the relevancy of said facts, and it is agreed that by making this agreed statement of facts neither party waives any point made by him in his petition or return. ’ ’

Later a supplemental stipulation covering one point was made thus:

“Supplemental Stipulation.
“It is further stipulated and agreed by and between the petitioner and respondent by their attorneys, that the following returns were made upon the notice of contest herein served upon Petitioner Woodson.
“ ‘State of Missouri, County of Jackson, ss.
“ ‘Jno. J. Kinney, of lawful age, being first duly sworn upon bis oath, states upon this 4th day of December, 1916, he received the attached notice of contest and that for the purpose and with intent of serving the same in accordance with the provisions of law, he made careful and diligent, search for the within named Stephen C. Woodson by visiting the county court house át Kansas City, Missouri, the court house at Independence, Missouri, 3651 Campbell Street, Kansas City, Jackson County, Missouri, same being the usual place of abode of Stephen O. Woodson, in Jackson County, Missouri, and also made careful, and diligent search for said Stephen C. Woodson in all other places where he might usually be found in Kansas City, Jackson County, Missouri; that he visited the residence at 3651 Campbell Street, Kansas City, Jackson County, Missouri, same being the usual place of abode of said Stephen C. Wood-son, and made careful and diligent search and inquiry for some member of the family of said Stephen C. Wood-son over the age of fifteen years; that although such careful and diligent search and inquiry was made by affiant, neither the said Stephen C. Woodson nor any member of his family over the age of fifteen years could be found in Jackson County on said 4th day of December, 1916; that thereupon he posted the attached notice of contest in the office of the Clerk of the Circuit Court of Jackson County, Missouri, this 4th day of December, 1916.
“ ‘John J. Kinney.
“ ‘Subscribed and sworn to before me this 4th day of December, 1916.
“ ‘Florence Williams,
“ ‘Notary Public within and for Jackson County, Missouri.
“ ‘My Commission expires November 18, 1920.
“ ‘State of Missouri, County of Jackson, ss.
“ ‘W. L. Dannahower, of lawful age, being first duly sworn, upon his oath states that he served the attached notice of contest by delivering a copy thereof to the therein named Stephen C. W'oodson, contestee, on December 5, 1916, at about 8:30 o’clock P. M., at 3651 Campbell Street in Kansas City, Jackson County, Missouri.
“ !W. L. Dannahower.
“ ‘Subscribed and sworn to before me this 11th day of December, 1916.
“ ‘J. M. O’Beinis,
“ ‘Notary Public in and for Jackson County, Missouri.
“ ‘My commission expires August 21,1920.’
“This supplemental stipulation is' made with the understanding that the same is subject to objection by either party as to the competency or relevancy of the facts stated herein.”

By motion to quash the notice of contest, relator Woodson challenged the jurisdiction of the court to try the case. This motion was overruled, and as indicated above the respondent Robinson was proceeding with the case, when stopped by our preliminary rule.

The points made are that the notice of contest was not given in time, and that no valid service of the alleged notice has been had upon relator and therefore the court was without jurisdiction. Respondent denies this, and in addition urges a waiver of jurisdiction. Under the agreed facts the whole question becomes one of law, rather than of fact. Further details as to pleadings and' facts can best be noted in connection with the points made. This outlines the ease.

I. We are confronted at the outset with the question of jurisdiction of a court in a contest case, and the further question as to whether or not such jurisdiction can be waived. In this case the relator Woodson, after duly and specially challenging the jurisdiction and power of respondent Robinson to proceed with such contest under the alleged notice, did file a counter notice of contest, and this with the motions theretofore filed, are urged as a waiver of jurisdiction. In other words, it is contended that the circuit court, over which respondent Robinson presided, had jurisdiction of the subject-matter, and this filing of the counter notice thus completed the jurisdiction.

The error in this position lies in the fact, that if the notice by contestant was not given in time or was not validly served the court never acquired any jurisdiction of the subject-matter, and jurisdiction of this kind cannot be waived.

It requires no citation of authorities that jurisdiction of the subject-matter is not waived by any act of the party. He can waive, jurisdiction of the person,' but not of the subject-matter. If the notice was not legally served in time to give the court jurisdiction of the particular case, no act of the party defendant gives such court jurisdiction. Contested election proceeding's are special statutory proceedings,’ and the court is without jurisdiction until it is made to appear that the requisite notice was legally served within the requisite time. In 15 Cyc, 399 et seq., the rule, which is drawn largely from Missouri cases, is thus stated:

'‘The intention of the contested election laws is to furnish a summary remedy and to secure a speedy trial, that the title to the office in dispute may be determined before the official term expires in whole or in large part, and that the will of the people may not be defeated in the choice of their officers. Consequently the statutes generally provide that any one desiring to contest an election must file a notice and statement of the grounds of contest within a certain number of days after the election, or the official declaration of the result. These statutes are mandatory and a strict compliance with them is jurisdictional. The notice and statement required to be served by the contestant on the contestee constitute the predicate upon which the power of the court is set in motion, and unless served within the time required by the statute the court has no jurisdiction to hear and determine the contest.”

This has been the Missouri rule since the early case of Castello v. St. Louis Circuit Court, 28 Mo. 259. Other Missouri cases are Wilson v. Lucas, 43 Mo. 290; Bowen v. Hixon, 45 Mo. 340; Higbee v. Ellison, 92 Mo. 13.

It is sufficient to say that the learned author in 15 Cyc., supra, practically uses the language of this court in the formation of the rule which we have quoted. If the respondent in this case never acquired jurisdiction of the subject-matter, as he would not, if notice has not been legally served within time,, there is nothing in the point of waiver.

II. Another preliminary question of vital importance is the question as to who shall serve notice of contest. Prom the record the notice in this case does not appear to have been served by an officer of the court. The question is, can a contestant in person, or through some other private person, serve such notice and make proof of service by affidavit, as was done in this case. The law, section 5924, Revised Statutes 1909, provides: “but no election of any such school director, of any county, municipal or township officer, shall be contested unless notice of such contest be given to the opposite party within twenty days after the votes shall have been officially counted.”

The statute uses the term, “notice,” but some light is thrown on the character of this document, by a further provision of the same section of the statute. Such provision reads:

“The notice shall specify the grounds upon which the contestant intends to rély, and if any objection be made to the qualifications of any voter, the names of such voters and the objections shall be stated therein, and the notice shall be served fifteen days before the terms of court at which the election shall be contested, by delivering a copy thereof to the contestee, or by leaving such copy at his usual place of abode, with some member of his family over the age of fifteen years; or, if neither such contestee nor his family can be found in the country, and service cannot therefore be had as aforesaid, it shall be a sufficient service of such notice for the contestant to post up a copy thereof in the office of the clerk of the court wherein the contest is to he heard.”

From this it appears that this notice takes the place of a petition in an ordinary law suit. The statutory contents so indicate. But we are not without authority on the question. In a splendidly written opinion in the case of Hale v. Stimson, 198 Mo. l. c. 145, Lamm, J., said:

“Under our method of contesting elections, the notice of contest takes the place of a petition in an ordinary suit, and the service of this notice u-pon contestee fills the office of a summons. . . . [State ex rel. Wells v. Hough, 193 Mo. 615.] The notice of contest therefore, must be judged of by the rules pertaining to the sufficiency of a petition, and, hence, must state a cause of action to give the court jurisdiction, or in order that a recount of votes may be legally made.” The italics are ours.

This Hale-Stimson case was one thoroughly threshed out in this court. It came tp Court in Banc on an opinion adverse to the one now printed in the books. We only mention this to show'the consideration that the case had before the present opinion was made the united voice of the Court in Bane. Those of us now remaining from that date to this (and there is but one) can well recall the circumstances." The desire and purpose was to fix principles in these cases. One of the things we did settle was, that the notice in contested election cases served as and for the petition, and-the service of this notice served as and for the summons in such cases. We had held in previous cases that the notice if served in time to confer jurisdiction, could be amended just as a petition .could be amended. [State ex rel. v. Smith, 104 Mo. l. c. 667; Nash v. Craig, 134 Mo. l. c. 353, 354.] In the Craig case it was said:

“While the statutes expressly provide that no formal pleading shall be required in eases of contested elections, yet it has been held that ‘this notice is the initia-. tory step in the contest and operates in the nature of a petition and writ in an ordinary civil action.’ [State ex rel v. Smith, 104 Mo. l. c. 667.] Again it is said: ‘The notices, on the one side and the other, constitute the only pleadings.’ ' [Gumm v. Hubbard, 97 Mo. 318.]” Again the italics are ours.

It is clear from our rulings that the service of this notice and tke notice itself, are something more than the ordinary. It is the thing which brings the opposite party into a court of justice. "We do not believe that the statute contemplates the service of such a notice other than by an officer of- the law. It should be added that the very service which is required to be made is the service which the statute requires an officer to make upon á petition and summons. Note the language of the statute as to how service shall be made: “by delivering a copy thereof to the eontestee, or by leaving such copy at his usual place of abode, with some member of his family over the age of fifteen years.” The identical language for the service of a summons. But this may not enlighten us much because we have statutory provision for the service of notice in like manner, Revised Statutes 1909, section 1788.

We are cited to this section and section 1791, as authority for private persons serving the notice in this case. The two sections read:

“See. 1788. Notices shall be in writing, and shall be served on the party, or his attorney, in the manner prescribed in 'this article, unless otherwise provided "by law. The service may be made by delivering to the party, or his attorney, a copy of such notice, or by leaving a copy at the usual place of abode of the party, or his attorney, with some person over the age of fifteen years, or with the clerk of the party or his attorney.”
“Sec. 1791. The service of any notice required by this chapter may be made by any sheriff, marshal or constable, or by any person who would be a competent witness, who shall make affidavit to such service; and any such officer shall be bound to serve notices equally with summons or other writs, and shall be in like manner liable for neglect.”

We should for a proper discussion add section 1789, which reads:

“Sec. 1789. If neither the adverse party nor his attorney reside in this State, such notice may he put up in the office of the clerk of the court wherein the suit is pending or the proceedings are intended to he had. ’ ’

Counsel for respondent urge these provisions of our statute, and make light of the proposition here involved, hut they entirely overlook the fact that this court has specifically ruled that the notices in-these statutes provided for have no reference to a notice which brings the party into court for the first time, but only have reference to such notices as may have to be served after the party is in court. In Wilson v. Railway Co., 108 Mo. l. c. 594, Sherwood, P. J., said:

“It is claimed, in support of the validity of the execution sale, that the service of the notice and motion, though made in the State of New York, and upon persons there resident and never resident in this State, was legal,- and gave the circuit court jurisdiction to award the execution.
“Sectio-n 736, Revised Statutes 1879, provides: ‘If any execution shall have been issued against any corporation, and there cannot be found any property or effects whereon to levy the same, then such execution may be issued against any of the stockholders to the extent of the amount of the unpaid balance of such stock by him or her owned; provided always, that no execution shall issue against any stockholder, except upon an order of the court in which the action, suit or other proceeding shall have been brought or instituted, made upon motion in open court, after sufficient notice in writing to the person sought to be charged'; and upon such motion such court may order execution to issue accordingly; and provided, further, that no stockholder shall be individually liable in any amount over and above the amount of stock owned.’
“It is insisted that such service may be had as provided in section 3505, Revised Statutes 1879, which reads this way: ‘Notices shall be in writing, and shall be served on tbe party or bis attorney, in tbe manner prescribed in this article, unless otherwise provided by law. The service may be made by delivering to the party or bis attorney a copy of such notice, or by ■leaving a copy at tbe usual place of abode of tbe party or his attorney, with some, person over tbe age of fifteen years, or with tbe clerk of tbe party or bis attorney.’ Tbe next succeeding section (3506) provides: ‘If neither tbe adverse party nor bis attorney reside in this State, sucb notice may be put up in tbe office of tbe clerk of tbe court wherein tbe suit is pending or tbe proceedings are intended to be bad.’
“It is plain, from these statutory provisions, that they refer, as their terms would naturally import, to a suit then pending in a court which has already acquired jurisdiction of tbe party to be served with tbe notice; for the party thus intended to be served is spoken of in section 3506 as ‘the adverse party,’ and as having an ‘attorney,’ meaning an attorney of record. This language would obviously be without meaning where as yet there is neither litigation nor adverse parties, and, consequently, no attorneys of' record, on whom notice could be served. Thus it will readily be seen that, if tbe plaintiff’s contention be correct, that this statute applies to tbe service of a notice in an instance like tbe present, then a service of sucb a notice would be equally good 'as to non-residents, were it simply posted up in tbe clerk’s office as provided in section 3506. In fact, in case of a non-resident party with a non-resident attorney, this would be tbe only method.
“In tbe same chapter 21 where section 736 is found, section 751 occurs, which provides that “all notices, orders and rules required to be served in tbe progress of any cause shall be served in like manner as in other civil cases.’ This section evidently refers also to interlocutory notices, etc., — those ‘required in' tbe progress of any cause,’ — and not to those notices, etc,, by which tbe action is begun.”

The sections which Judge Sherwood discusses are the same cited to us by learned counsel for respondent, and they have remained unchanged from that day forward. Our holding in the Wilson case, supra, was that the notices in these several sections mentioned had no reference to a notice to bring a person into court for the purpose of forcing him to try a case in court. These statutes therefore are inapplicable and furnish us no light upon the question under consideration. The notice we have under consideration is the very foundation of the action, and its service is the process by which the party is brought into court. The statute provides that the contestee shall be served with notice. The sections referred to by Judge Sherwood, and relied upon by respondent, do not aid us, because they have no reference to initial process in law suits. We have held that this notice in election contests is the initial process. The question then is by whom it can be served, absent a statutory provision, as in this case. In other words, what was the legislative intent, when it provided for service of this initial process in a case of this character? Did the Legislature intend that such process (notice as stated in the law) should be served by a private individual? We think not. We believe that the Legislature by the language used contemplated the service by an officer of the court wherein the action was to be heard. This, for the reason that the very jurisdiction of the court was and is dependent upon the service. The Legislature hardly intended that the court should determine its jurisdiction. from the affidavit of a private party, rather than from the return of its own bonded officer.' We conclude that the Legislature intended by this statute that this initial process should be served by the official process-server of the court, rather than a private individual. The initial process in all election contest cases is the notice and the service thereof.

III. If we are right in our conclusion in paragraph two supra, there has been no notice to contestee by personal service. Service in a method unauthorized by law is no service. Through personal service there has been no notice of contest to this date.' Is there substance in the alleged substituted service by the alleged posting of the notice of contest in the clerk’s office? The statute says that this kind of service shall he by posting a copy of the notice in the clerk’s office. The return says that the affiant posted the notice itself (not a copy), and just how the court was to become possessed of this original notice after the posting in the clerk’s office is an interesting matter for thought. But to get to the more serious trouble. This substituted service could not be had until effort to get personal service had failed, and this effort to get personal service, as we have indicated above, must he by the sheriff or other proper officer of the court. If we are ■ right in holding -that personal service must be through an officer of the court, then there can he no substituted service until this officer fails to find the contestee. The failure of a private person to find him will not suffice for the basis of the substituted service. Whilst the statute says the contestant shall post up the copy, yet we think that the reasonable construction of the statute would be that the officer charged with the service of the notice would he the party to post the notice, after having made the effort for personal service, .and let'his return show the service in that way. It at least does not mean that some private party, as here, can make the search, and then post the notice.

Under the record before the respondent Robinson, and before us, he had no jurisdiction in this case, and our preliminary rule in prohibition should he made' absolute. With these insurmountable obstacles in the way of jurisdiction, it would he useless to discuss other .questions urged in the briefs. Let our preliminary rule he made absolute. It is so ordered.

All concur, except Woodson, J., not sitting.


author: WILLIAMS, J.

text:
    THE STATE ex rel. ST. JOSEPH LEAD COMPANY v. WILLIAM T. JONES, Judge of Circuit Court, and WILLIAM R. RAMSEY.
    In Banc,
    February 26, 1917.
    1. VENUE: Foreign Corporation. An action by summons against a foreign business corporation , duly licensed to do business in this State cannot be instituted in any county other than the county in which either the cause of action accrued or in which the corporation has and usually keeps an office or agent for the transaction of its usual and customary business. If the cause of action accrued in St. Francois County, and the defendant is a New York corporation licensed to do business in this State and maintains an office and agent for the transaction of its usual and customary business in Jefferson County,, but has no such office or agent in the city of St. Louis, the suit by a citizen of Illinois cannot be maintained in said city. The word “corporations” used in Sec. 1754, R. S. 1909, comprehends foreign as well as domestic corporations.
    2. STATUTORY CONSTRUCTION: Inclusion of Things Existent and Subsequent:' Corporations. A statute general in terms may be made to apply to conditions non-existent at the time of its enactment. If expressed in words of the present tense it will generally be construed to apply not only to thipgs and conditions existing at its passage, but will also be given a prospective interpretation and applied to such as come into existence thereafter. Sec. 1754, R. S. 1909, stating the venue of suits against corporations, embraces foreign corporations, even though it be admitted that they could not have been served with process in this State at the time of its enactment in 1855.
    3. VENUE: Foreign Corporation: Governed by Section 1754; NonResident. The venue of r suit against a foreign industrial corporation licensed to do business in this State is governed by section 1754, Revised Statutes 1909, and therefore it is not necessary or proper to construe the term “non-residents” used in the fourth subdivision of section 1751. [Distinguishing Stone v. Insurance Co., 78 Mo. 655, and N. Y., L. E. & W. Railroad Co. v. Estill, 147 U. S. 591.]
    Prohibition.
    Writ issued,

      Politte Elvins and Nagel & Kirby for relator.
    (1) Suit against a foreign corporation which keeps in this State an office or agent for the transaction of its nsnal business, must be brought either in the county where the cause of action accrued or in the county where it keeps such office or agent. Sec. 1754, R. S. 1909. “Except as otherwise provided by law” nonresidents may be sued in any county under section 1751. But, even if a foreign corporation maintaining an office and agent in this State is to be considered a “non-resident” under section 1751, it is “otherwise provided” by section 1754 that such corporation shall be sued in the county where the cause of action accrued or the county where such office or agent is kept. (2) A foreign corporation complying with our laws and maintaining an office and agent for the transaction of. its business in this State is regarded, for purposes of jurisdiction, not as a non-resident, but as a resident of the county where such office or agent is maintained. Harding v. Railroad, 80 Mo. 661; Fitzmaurice v. Turney, 214 Mo. 627; Sid-way v. Land Co., 187 Mo. 673; Young v. Niles & Scott Co., 122 Mo. App. 329. (3) The.exceptional ease of foreign insurance companies, which are held to be residents of and suable in any county in the State by virtue of the specific provisions of section 7042, proves the rule' for which we contend. Meyer v. Insurance Co., 184 Mo. 486; State ex rel. v. Grimm, 239 Mo. 166; Spangler v. Protective Assn., 172 Mo. App. 255; Rodgers v. National Council, 172 Mo. App. 719.

      Safford & Marsalek for respondents.
    (1) Suits against non-residents may be brought in any county in the State. See. 1751, R. S. 1909; Baisley v. Baisley,' 113 Mo. 549; Greeley v. Railroad, 123 Mo. 157; Gabriel v. Mullen, 111 Mo. 119; Accident Co. v. Reisinger, 43 Mo. App. 576. (2) The fact that a foreign corporation is licensed to do business in a State other than that of its incorporation does not domesticate it. It is a non-resident of every State except that which granted its charter. Constitution, art. 2, sec. 10; Secs. 1751, 1754, R. S. 1909; ITerryford v. Ins. Co., 42 Mo. 148; Stanley v. Railroad, 62 Mo. 511; Spangler v. Protective Assn., 172 Mo. App. 255; Middough v. Railroad, 51 Mo. 520; Stone v. Ins. Co., 78 Mo. 655; State ex rel. v. Mason, 153 Mo. 23; 2 Cook on Corporations (4 Ed.), sec.'757; 5 Thompson on Corporations (2 Ed.), secs. 6629-6630; Ex parte Schollenberger, 96- U. S. 377; Railroad Co. v. Harris, 12 Wall. 65, 79 U. S. 354; Railroad v. Estill, 147 U. S. 593; Thomas v. Mining Co., 65 Cal. 600; Ivanuch v. Railroad, 128 N. W. 333; Railroad v. Allison, 190 U. S. 236.' (3) In 1855, when Sec. 1754, R. S. 1909, was enacted, a foreign corporation could not he brought into court by summons, hut only by attachment. MeNichols v. Agency Co., 74 Mo. 457; Hill v. Mfg. Co., 4 Mo. App. 595; Gold Issue M. & M. Co. v. Ins Co., 184 S. W. 1003; Farnsworth'v. Railroad, 29 Mo. 75.'
   WILLIAMS, J.

— This is an original proceeding whereby relator seeks to prohibit respondents from proceeding with a case now pending before Hon. William T. Jones, Judge of Division One of the circuit court of the city of St. Louis, wherein William R. Ramsey as plaintiff (one of the respondents herein) seeks to recover from the St. Joseph Lead Company as defendant (relator herein), the sum of $25,000 for injuries alleged by plaintiff to have been by him received through the negligence of the defendant while working. in the employ of the defendant in St. Francois County, Missouri.

To the relator’s petition respondents demur on the ground that the petition and writ do not state facts sufficient to constitute a cause of action.

The facts stated in the petition and thus admitted by the demurrer are substantially as follows:

Suit was instituted, as above mentioned, in the circuit court of the city of St. Louis, by William R. Ramsey, a resident of the State of Illinois, against the St. Joseph Lead Company. The cause of action upon which suit was brought did not accrue in the city of St. Louis, but in the county of St. Fráncois. The defendant, St. Joseph Lead Company, is' a corporation organized under the laws of New York and is licensed to do business and is doing business in the State of Missouri and maintains an office and agent for the transaction of its usual and customary business in Jefferson County, Missouri, but has no such office or agent in the city of St. Louis. Summons was issued directed to the sheriff of Jefferson •County, who made return showing service upon the defendant in that county.

In due time defendant (relator) appearing specially for that purpose, moved to quash the summons and return, on the ground that the suit was not commenced either in the county where the cause of action accrued, or in the. county in which the defendant corporation had or usually kept an office or agent for the transaction of its usual and customary business. The respondent, William T. Jones, as judge of said court,- entered an order overruling the motion to quash and was about to entertain further proceedings in the case at the time application was made to this court.

I. The question.presented is one of venue and may be stated as follows:

Can suit by summons be instituted against an ordinary foreign business corporation (duly licensed to do and. doing business in this State), in any county in this State other than in the county where either the cause of action accrued or where the corporation has or usually keeps an office or agent for the transaction of its usual and customary business?

We have reached the conclusion that the above question must be answered in thS negative.

Sections 1751 and 1754, Revised Statutes 1909, the only statutes claimed to deal with this subject, are as follows:

Section 1751: “Suits instituted by summons shall, except as otherwise provided by law, be brought: First, when the defendant is a resident of the State, either in the county within which the defendant resides, or in the county within which the plaintiff resides and the defendant may he found; second, when there are several defendants, and they reside in'different counties, the suit may he brought in any such county; third, when there are several defendants, some' residents and others nonresidents of the State, suit may be brought in any county in this State in which any defendant resides; fourth, lohen all the defendants are non-residents of the State, suit may he brought in any county in this State; fifth, any action, local or transitory, in which any county shall be plaintiff, may be commenced and prosecuted to final judgment in the county in which the defendant or defendants reside or in the county suing and where the defendants, or one of them may be found.” (Italics ours.)

The foregoing section,' down to subdivision fifth thereof, was first enacted in its present form in 1855. [See R. S. 1855, p. 1220.] At that revising session of the Legislature, among other changes made in the then existing statute, the words “except as otherwise provided by law” were first inserted.

Section 1754: “ Suits .against corporations shall be commenced either in the county where the 'cause of action-accrued, (or in case the corporation defendant is a railroad company owning, controlling or operating a railroad running into or through two or more counties in this State, then in either of such counties), or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.” (Parentheses ours.)

The last above section was also first enacted in 1855 with the portion in parentheses omitted. [See R. S. 1855, p. 377.] The portion? in parentheses was inserted by amendment in 1903.

The first point for determination is: Which of the above sections governs the venue in suits instituted against foreign corporations of the kind and character of relator!

Relator contends that section 1754 governs, while respondent contends that the fourth subdivision of section 1751 applies.

It will be noticed that section 1751, supra, by its express terms, “except as othenvise provided by law” clearly indicates that it was not the legislative intention that said section should prevail over any conflicting statute. In this behalf it is of interest to note that at the same session of the Legislature, to-wit, the revising session of 1855, section 1754 was first enacted providing that suits against corporations should be commenced either in the county where the cause of action accrued or in any county where the corporation has an office or agent for the transaction of its usual or customary business.

The term “corporations” used in section 1754, supra, unless limited by construction or by other statute, is certainly broad enough to cover all corporations, foreign as well as domestic. In this connection, however, respondents contend that since foreign corporations could not be served with summons in this State at the time section 1754 was enacted, it should not be held to apply to foreign corporations. We are unable to see wherein this argument can, in any manner, aid the respondents, for if it can properly be said that section 1754, supra, could not apply because no provision existed at that time for serving summons upon foreign corporations in this State', the same would also have to be said with reference .to the application of section 1751, supra, enacted into its present form (as far as the points here involved are concerned), at the same session and therefore also at a time when no provision existed for serving a foreign corporation in this State. If respondents are correct in the principle of law underlying their argument then we would be in a situation without any provision for instituting suits by summons against such foreign corporations, because said two sections are the only statutes which can be claimed to provide the venue under the present situation.

Respondent, however, is in error in contending that a statute in general terms can never apply to conditions other than those existing at the time the statute is enacted. The correct rule on this point is stated in 36 Cyc. 1235, as follows: “Where a statute is expressed in general terms' and in words of the present tense it will as a general rule be'construed tq apply not only to things and conditions existing at its passage, but 'will also be' given a prospective interpretation, by which it will apply to such as come into existence thereafter.”

To the same effect are 2 Lewis’s Sutherland, Statutory Construction (2 Ed.), p. 956; Endlich on the Interpretation of Statutes, sec. 112; State v. Hays, 78 Mo. 600, l. c. 604.

, Since sec. 1754, supra, is sufficient in terms to com-prehend foreign as well as domestic corporations and since in the light of the foregoing rule, it should be held to spring into use and apply to corporations, upon which provision for serving summons ie thereafter made, as well as to corporations which could then be served with summons, it necessarily follows that as to suits against this class of defendants the matter of venue was' “otherwise provided by law” and that the matter of venue as to such defendants falls within the exception, and not the rule., provided by section .1751, and that therefore section 1754 and not section 1751 prescribes the rule on venue in suits against such foreign corporations.

II. Learned counsel upon both sides have ably briefed the question concerning the proper construction of the term “non-residents” contained in. the fourth subdivision of section 1751, supra. This was done, eo doubt, to meet any contingency that might arise. However, in view of the conclusion above reached that section 1754, supra, governs the' situation in this case, it would be but to go afield were we to enter into a discussion of what the situation would be if section 1751, supra, governed the case. If section 1751 did govern the case then, of course, it would be necessary to determine, in attempting to apply that statute, whether or not the relator was a nonresident within the meaning of the fourth subdivision thereof. But since we have held that that section does not apply it would he obiter dictum to undertake to construe its terms. In support of their contention that foreign corporations are non-residents within the meaning of section 1751, the main case cited by respondents is Stone v. Insurance Co., 78 Mo. 655. That case held (whether necessary to a decision of the case or not we need not here determine), that the defendant, a foreign insurance company, was a non-resident within the meaning of section 1751, supra. In other words, the decision in that ease was based, at least in part, upon the hypothesis that section 1751 governed in that casé. .Section 1754, supra, however, does not appear to have been considered by the court in reaching that hypothesis, at least that section is not mentioned in the opinion. A section relating specifically to insurance companies is mentioned and considered. Whether the court there erred in taking the hypothesis which it did take, we cannot here determine because it would also involve the construction of the statute (relating to foreign insurance companies) not involved in this case, and as above stated such determination would be hut an obiter dictum in the present case.

The case of Stone v. Insurance Co., supra, cannot therefore he considered as an authority upon the exact points held in judgment in the case at bar and the same may also be said with refernece to N. Y., L. E. & W. Railroad Co. v. Estill, 147 U. S. 591, which follows the Stone case and applies the rule therein announced to foreign railroad corporations. The Estill case also does not mention section 1754, supra. The remarks in this paragraph are made merely in explanation of our failure to undertake to construe section 1751, supra.

III. It stands conceded upon this record that the relator (defendant in the suit pending in the circuit court of St. Louis) did not have or usually keep, in the city of St. Louis, an office or agent for the transaction of their usual and customary ' business and further that the cause of action sued upon did not accrue in said city.

Applying the rule announced in Paragraph One above, it follows that said circuit court is without jurisdiction to proceed with the case and that the preliminary rule of prohibition heretofore issued should be made permanent. It is so ordered.

All concur.