author: BLAIR, J.

text:
    E. A. BOWMAN v. WABASH RAILROAD COMPANY, Appellant.
    Division One,
    December 20, 1916.
    1. BLOCKING GUARDRAIL: Coal Dust: Best Known Appliances. Where the employee who was responsible for the blocking of the guardrail in question testified for defendant that the method used was to drive between the main rail and the bent end of the guardrail a block of wood of sufficient length and size to fill the space between them in such manner that a man’s foot could not be caught therein, and that a man’s foot could not be caught when a guardrail is properly blocked, and the plaintiff’s evidence is to the same effect, it cannot be held that coal dust sifted down from passing cars and filling the unblocked space up to the lower part of the ball of the rail, satisfied the statute (Sec. 3163, R. S. 1909) requiring that the best known appliances be¡ used for such purposes.
    2. -: Place of Injury. Evidence that the switchman’s foot was caught under the ball of the guardrail; that it was impossible for his foot to have been caught elsewhere than at the point where blocking is required, namely, at the end of the guardrail where, it is bent out from the main rail to prevent the wheel’s flanges from striking the end of the guardrail; that his foot was caught at a point at which the guard rail was “bent the opposite way a little,” .and that the hend in the guardrail is the thing that creates the opening which blocking is designed to close, is sufficient to show that the switchman was injured at the point on the guardrail at which blocking is by statute required.
    3. -: -: Between Main and Guard Rail. The purpose of the statute (Sec. 3163, R. S. 1909) is to prevent, as far .as possible, the feet of railroad employees from being caught, and a switchman brings himself within its terms by showing his injury resulted from his foot being caught by reason of the railroad company’s failure to block the guardrail. The fact that the earth outside the main rail was level with its top, that his foot was on the main rail and his toe slipped under the ball of the guardrail and the car wheel passed over it, will not prevent a recovery on the theory that his whole foot was not between the two rails.
    4. -: Validity of Statute: Daily Penalty. The elimination of so much of the statute in regard to blocking guardrails in railroad ■ yards as provides a daily penalty, even if that were necessary, would not destroy the rest of the statute; and where the question of whether or not the daily penalty could be enforced is not in the case, the statute cannot be held to be invalid on any such ground.
    5. -,-: Instruction: What Constitutes Blocking. Loose particles of coal or coal dust, by chance fallen Iromrpassmg trains between the main and guard rail, do not constitute a compliance with the statute requiring the “best known appliances to be used” for blocking guardrails; and where the defense is that the guardrail was blocked, not filled, instructions which ignore such a filling of the space between the rails by particles of coal and coal dust are not erroneous.
    6. -:-: Pilling and Blocking: Cured by Another. Where the statute requires guardrails to be filled or blocked, the instructions should not tell the jury that defendant railroad was required to do both; but such an error in an instruction so requiring is cured by another which tells the jury that they must find the guardrail was neither blocked nor filled before they can render a verdict for plaintiff.
    Appeal from Randolph Circuit Court. — Hon. A. H. Waller, Judge.
    Appirmed.

      J. L. Minnis, N. S. Brown and David H. Robertson for appellant.
    (1) The plaintiff was not entitled to recover and the court erred in refusing to direct the verdict for the defendant. This is a suit under the statute, Sec. 3163, R. S. 1909, requiring railroad companies to use the best known appliances or inventions to block or fill guardrails, etc. Plaintiff’s evidence shows that the space between the guardrail and main rail at the point of the accident was filled, and the evidence does not tend to show that such filling is not the best known appliance. An appliance is anything brought into use as a means to effect the end sought. Honaker v. Board, 47 W. Ya. 170; Bodie v. Railroad, 61 S. C. 468; Johnson v. Water Co., 71 Wis. 553. (2) The plaintiff’s own evidence shows that he was not injured at the place required by the statute to be blocked or filled. The danger arising from a guardrail is in the angle at the end of the guardrail. O’Neil v. Railroad, 66 Neb. 638; Hamilton v. Mining Co., 108 Mo. 307; Brannock v. Railroad, 147 Mo. App. 309; Southern Pacific Co. v. Seeley, 152 IT. S. 150. (3) The plaintiff’s foot was not caught in this angle, and hence, if the statute was violated, such violation had no cause or connection with plaintiff’s injury. (4) Plaintiff’s own evidence shows that even if the space between the guardrail and main rail, at the point of the injury, had been blocked, it would not have prevented the injury. Plaintiff’s foot was not caught between the rails; his toe merely caught under the ball of the guardrail, which would have occurred even if the space at the point of the accident had been blocked. (5) Sec. 3163, R. S. 1909, is void for uncertainty. Johnson v. Districh, 152 Mo. 251; State v. Light Co., 212 Mo. 109; Cook v. State, 26 Ind. App. 27'8; State v. Gaster, 45 L. R. A. 636; George v. Railroad, 179 Mo. App. 294; Railroad v. Commonwealth, 99 Ky. 132; Railroad v. Commission, 19 Fed. 692; Note to 32 L. R. A. 209; Railroad v. People, 77 111. 443.

      M. J. Lilly and O. C. Phillips for respondent.
    (1) Plaintiff proved his case as alleged and the cause was properly submitted to the jury. Coal dust does not meet the requirements of the statute "to adopt, put in use and maintain the best known appliances or inventions to fill or block.” The defendant recognized the wooden block as the proper filling. The coal dust which had sifted in between the main rail and the guardrail was not brought into use by defendant as a blocking; neither was it a means to effect the end sought in requiring guardrails to be blocked, hence does not fall within defendant’s definition of an appliance, to say nothing of “the best known appliances or inventions” which the the statute requires. (2) The evidence shows that plaintiff was injured at the place required by the statute to be blocked or filled. This is true, conceding that the angle at the end of the guardrail is the place which the statute requires to be blocked or filled. The plaintiff’s foot was caught in this angle at the place where the guardrail was bent the opposite way from the main rail. (3) The evidence shows that if the place between the guardrail and the main rail, at the point of the injury, had been blocked, plaintiff would not have been injured. Plaintiff’s foot was caught under the ball of the guardrail. As stated by defendant’s witness, the block is driven in between the main and guardrail along the web or thinner part of the rail, over the flange and under the ball of the rail. If the guardrail in question had been blocked in this way, it would be impossible for plaintiff to have caught his foot under the ball of the guardrail. (4) Sec. 3163, R. S. 1909, is valid and not void for uncertainty, as contended by defendant. George v. Railroad, 179 Mo. App. 283.
   BLAIR, J.

This is an appeal from a judgment for $9000 rendered by the Randolph Circuit Court in an action instituted by respondent to recover damages for the loss of a leg. The petition alleged the injury resulted from appellant’s failure to block or fill one of its guardrails in its yards at Moberly. Respondent was a switchman and when injured was engaged, as one of a train crew, in hauling coal over that part of appellant’s line between Moberly and Huntsville. This crew had brought a coal train into the Moberly yards and, in the course of duty, respondent undertook to uncouple some moving cars. He stepped between the ears, his toe slipped under the ball or top of a guardrail, and before he could remove it a car wheel passed over his foot.

There • was evidence pro and con on the question whéther the guardrail was filled or blocked in the usual manner. In the sense used in this record, a guardrail is a rail placed inside of a main or running, or track rail, paralleling such rail except at each end, where it is bent out therefrom in order to prevent the flanges on the car wheels from striking the end of it. The method of blocking or filling guardrails in the Moberly yards, generally, and the guardrail in question, was by driving into the open space between the main rail and the flared or curved end of 'he guardrail a block of wood two or three feet long and large enough to fill the space up to the lower side of the ball of the rails. There is evidence tending to show that the guardrail by which respondent asserts his foot was caught was not blocked, but that coal dust had sifted down from passing cars and filled the unblocked space up to the lower part of the ball of the rail. Other facts in evidence, necessary to a decision, are stated in the course of the opinion.

I. Appellant contends there was no evidence coal dust accidentally deposited between the main and guardrails was not such blocking or filling as required by the statute. [Sec. 3163, R. S. 1909.] This requirement of the statute is that the “best known appliances” be used for such purposes. On the trial there was no pretense appellant employed, or attempted to -employ, in its Moberly yards, or in connection with the particular guard rail in question, any method save blocking as above described. Appellant called the employee who, at the time respondent was injured, was responsible for the safety appliances affected by the statute (Sec. 3163, R. S. 1909), so far as concerned the Moberly yards, and he testified the method used, with respect to guardrails, was to drive between the main rail and the bent or flared end of the guardrail a block of wood of sufficient size and length to fill the space in such manner that a man’s foot could not be caught therein. He also testified that a.man’s foot could not be caught when a guardrail is properly blocked. Appellant’s testimony was to the same' effect. The jury must have found appellant’s foot was caught under the ball of the guardrail and that the rail was not blocked. In the face of appellant’s own proof that proper blocking would have rendered it impossible for respondent’s foot to have been caught, it is hardly necessary to say that we cannot hold that coal dust accidentally sifted between the rails, and in spite of which appellant’s foot was caught, satisfies the requirement (Sec. 3163, R. S. 1909) that the “best known appliances” must be used to block or fill the opening between the guardrail and main rail.

II. It is insisted the evidence shows respondent was not injured at the point on the guardrail where blocking is required. There is evidence respondent’s foot was caught under the ball or top of guardrail, and further evidence, by both appellant’s and respondent’s witnesses, jp was impossible for his foot to have been caught elsewhere than at the end where blocking is required, the rails being too close together at all other • places. Further, respondent testified his foot was caught at a point at which the guardrail was “bent the opposite way a-little,” and all the evidence is that the bend in the guardrail is the thing which creates the opening which blocking is designed to close. The evidence on this point .is sufficient.

III. It is urged the evidence shows respondent’s foot was not caught between the main rail and the guardrail, and that this ends the case. Respondent’s foot was upon the main rail and his toe slipped under the ball of the guardrail. The earth outside the main rail was level with its top. The guardrail was slightly higher than the main rail. The evidence tends to show the injury occurred at a point at which blocking was required and that had the guardrail been blocked respondent’s foot could not possibly have been caught as he testified it was. This contention seems to assume that it was necessary to respondent’s case that his whole foot be caught between the two rails in order that he might recover in this case. This cannot be true. The lack of blocking caused- his toe to become wedged under the ball of the guardrail and this held his foot until the wheel passed over it. The purpose of the statute (Sec. 31G3, R. S. 1909) is “to prevent, as far as possible, the feet of employees . . . from being caught,” and respondent brought himself within the statute by showing that his injury resulted from his foot being caught by reason of appellant’s failure to block the guardrail mentioned in evidence in this case.

TV. It is contended the statute is void for uncertainty. This question is considered and correctly decided, adversely to appellant, in George v. Railroad, 179 Mo. App. l. c. 292 et seq. The question whether the daily penalty could be enforced is not in this case- Eliminating the penalty clause, there is yet a valid provision remaining which is broad enough to cover this case. The elimination of the daily penalty clause, even if that were necessary, would not destroy the remainder of the act.

Y. The instructions are criticized. The first predicated certain- facts and required certain findings, and then directed the jury to find for respondent if they found that he “was injured as aforesaid by and in direct and immediate consequence of the negpg.ence 0f defendant in failing to block said guardrail, or in negligently maintaining the said guardrail and track rail without any blocking or filling between said rails, so as to prevent as far as possible the foot of plaintiff from being caught therein.”

It is insisted the instruction erroneously (1) authorized a verdict in the absence of blocking “regardless of whether the rail had been filled,” and (2) ignored the evidence tending to show the space was filled with loose particles of coal dust which had dropped from passing cars. The defense was that the guardrail was blocked, not filled. This was the trial theory. Loose particles of coal or coal dust, by chance fallen between the rails, constitute no compliance with the statute. In the circumstances, the instruction was not prejudicial.

The second instruction reads as follows-: “The court instructs the jury, as a matter of law, that it was the duty of defendant to fill and block the guardrail mentioned in evidence, for the purpose of preventing, as far as possible, the feet of plaintiff and others of its employees then engaged in and about said railroad yards from being caught therein, and if you find and believe from the evidence that defendant did not on said day have said guardrail filled or blocked, and plaintiff was thereby injured, you should find,” etc.

The statute requires guardrails to be filled or blocked. Assuming that the words “fill” and “block” are not used as different expressions of the same idea, the court should not have told the jury the statute required both things to be done. When the court came to the point of directing the jury what omission would authorize a verdict, it cured this, however, by instructing them, in effect, that they must find the guardrail was neither blocked nor filled before a verdict could be returned. This idea was impressed by several of the instructions given at the instance of appellant. There was nothing prejudicial in the instructions.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: RAILEY, C. PEE CURIAM: PER CURIAM:

license: Public Domain

text:
    THE STATE ex rel. RALPH E. TRUMAN, Appellant, v. HENRY L. JOST et al., Constituting Board of Police Commissioners of Kansas City.
    Division One,
    December 20, 1916.
    1. POLICE DETECTIVE: State and Municipal Officer: Increase of Salary. A police detective, appointed by the Board of Police Commissioners of Kansas City, is, because of the safeguards thrown around his position by the statutes (Secs. 6189, 6190, 6192 and 6193, R. S. 1899), both a State officer and a municipal officer, and his salary, in view of section 8 of article 14 of the Constitution, cannot be increased by the Legislature during the definite term for which he was appointed.
    2. -:-: New Statute: Amendment or Repeal. An act of the Legislature repealing and reenacting, at the same time, a preexisting statute, is but a continuation of the latter, and the law dates from the passage of the first statute. So that, although the Act of 1909, in terms repealed Sec. 6192, R. S. 1899, which fixed the salary of police detectives at $1080, yet as section 6192 was amended only by changing the salary from $1080 to $1380 and was otherwise reenacted, and both said sections and the Act of 1909 dealt with the same general subject, the Act of 1909 was, in legal effect, an amendment of Sec. 6192, R. S. 1899; and as relator was appointed, on February 17, 1909, for a term of three years, and was not reappointed after the Act of 1909 went into effect on June 14, 1909, the amount of his salary is to be determined by section 6192, and he was not entitled to the additional compensation of $300 a year from June 14, 1909, to February 17, 1912.
    3. PUBLIC OFFICER: Definite Term: Power to Remove at Pleasure. Power of a board of police commissioners to remove a policeman at pleasure implies that the officer has no term of office; but where the statute expressly provides for appointment of policemen for a term of three years, but qualifies this by vesting the board with power to remove without a hearing either (1) when the number of police officers exceeds the number needed or (2) when there are insufficient funds to pay the force as constituted, it does not vest the board with power to remove at pleasure, but simply with power to remove for cause without a hearing. And a police officer appointed in pursuance to such statutory power has a definite term of three years.
    4. -: -: -: Meaning of For Cause and Hearing. Constitutional or statutory provisions which allow the removal only for cause, or for cause and after notice and hearing, do not apply to a dismissal for some reason other than his own act or default, and where there is no intent to appoint another in his stead.

      Appeal from Jackson Circuit Court. — How. Joseph A. Guthrie, Judge.
    Affirmed.

      M. E. Casey, Frank D. Rader and James M. Rader for appellant.
    (1) Mandamus of police commissioners is the proper procedure. Sanford v. Kansas City, 69 Mo. 466; Riley v. Kansas City, 31 Mo. App. 444; State ex rel. v. Walbridge, 153 Mo. 194; ■ State ex rel. v. Hawes, 177 Mo. 387; State ex rel. v. Mason, 153 Mo. 26. (2) Relator’s old office was abolished and he held new office created by Act of June 14, 1909. The act approved June 14, 1909, carrying an emergency clause, by expressly repealing Sec. 6192, R. S. 1899, not only abolished all salaries prescribed by said section, but also abolished ipso facto the offices to which these salaries had been attached. Said officers being purely statutory in their origin, were swept as completely away by the repealing act of June 14, 1909, as thought they had never theretofore existed. And this conclusion is not in the least affected by the fact that the new law of 1909 retained the same nomenclature. in designating offices and the same official tenures as had formerly been prescribed by the statute repealed, nor, by the further fact that incumbents at the time of such repeal, whose commissions, but for such repeal, would have extended their terms beyond June 14, 1909, thereafter continued to exercise the same functions and to perform the same duties as before. In short, if the officers of the Police Department in office June 14, 1909, were not entitled to be paid thereafter under the provisions of the act approved on that date, then they were not entitled to be paid at all, because the former statute had been repealed and utterly annulled, and the law is well settled that no public officer can claim or be paid for his services except by virtue of some existent and specific statutory authority, (a) The legal effect of the repeal of Sec. 6192, R. S. 1899, was to abolish the official terms, as well as salaries, created by that section. St. Louis v. Kellerman, 23-5 Mo. 695; Magner v. St. Louis, 179 Mo. 495; Meriwether v. Love, 167 Mo. 521; State ex inf. v. Ratcliffe, 164 Mo. 453; State ex. rel. v. War-field, 94 Mo. 117; 7 Words and Phrases, Tit. “Repeal,” p. 6102; Duffus v. Furnace Co., 40 N. Y. Supp. 930. (b) The incumbents holding at the date of said repeal had no vested right to their office, although their commissions had not then expired, and the repealing act of June 14, 1909, was a legitimate exercise of legislative power. Primm v. Carondelet, 23 Mo. 22; State ex rel. v. Davis, 44 Mo. 129; Wilcox v. Rodman, 46 Mo. 322; Head v. Curators, 47 Mo. 220; State ex inf. v. Crow, 166 Mo. 357. (c) Except by virtue of an existing statute, no compensation can be claimed ' by any officer, or other person, for services rendered to the public. Mechem on Public Officers, secs. 855, 856; Gamier v. St. Louis, 37 Mo. 554; Shed v. Railroad, 67 Mo. 687; Gammon v. Lafayette Co., 76 Mo. 675; Williams v. Chariton Co., 85 Mo. 645; Givens v. Daviess' Co., 107 Mo. 603; State ex rel. v. Wofford, 116 Mo. 220; State ex rel. v. Brown, 146 Mo. 401; Jackson Co. v. Stone, 168 Mo. 577; State ex rel. v. Adams, 172 Mo. 1; Hill v. Butler Co., 195 Mo'. 511; State ex rel. v. Walbridge, 153 Mo. 194; State ex rel. v. Hawes, 177 Mo. 387. (3) The retention of relator and others in their former positions after their tenure under the old law had been terminated by the repeal of that law, amounted to a new appointment or re-appointment of all persons so retained. In other words, by retaining them the Board of Police Commissioners necessarily did so by virtue of the Act of 1909, there being no other law in existence authorizing the board either- to employ or pay those who filled said positions, (a) By paying salaries according to the provisions of the Act of June 14, 1909, for three months, as well as by their former resolution aforesaid, the Board of Police Commissioners gave to that act the identical interpretation and effect for which we here contend. State ex rel. v. Job, 205 Mo. 29; Ewing v. Vernon County, 216 Mo. 689. (b) Of still greater weight is the legislative intent, expressed not only in the title of the Act of 1909, hut also in the emergency clause. The wording of the emergency clause shows heyond peradventure that the Legislature intended to wipe out the old law in toto, with all its incidents, and to create a new police department to be appointed and paid under the new law. This plain purpose of the Legislature, so expressed in the emergency clause this court is bound , to respect and sustain, if possible to do so. State v. Bengsch, 170 Mo. 108; State ex rel. v. Trust Co., 209 Mo. 492; State ex rel. v. Piper, 214 Mo. 499. (c) It is wholly immaterial to the present controversy whether relator received a formal commission under the new law or not. His service was rendered by virtue of-that law, by authority of the board, with acquiescence of all men, so that neither his title to said position nor the indicia of his authority to discharge -the duties which he confessedly did discharge can be questioned in this proceeding. State ex rel. v. Draper, 48 Mo. 213; State ex rel. v. Clark, 52 Mo. 508; State ex rel. v. John, 81 Mo. 13; State ex rel. v. Gordon, 236 Mo. 159; Dickerson v. Butler, 27 Mo. App. 9; 29 Cyc. 1371. (4) The office held by relator does not come under constitutional restriction. Conceding that relator and other policemen were “officers” within the meaning of that word as used in the Constitution, still it cannot reasonably be held that their terms were “fixed,” when by the very statute “fixing” such terms it is provided they shall become unfixed at any moment the board takes a notion to reduce the force, because larger than the board deem necessary, or for lack of funds wherewith to pay salaries. Sec. 9785, R. S. 1909. Under the statute the board may, in either case, discharge said officers without notice or warning. To that extent, therefore, their tenure of office is necessarily uncertain, unfixed, and held at the board’s discretion, thereby taking them out of the class of officers to which said constitutional inhibition relates. State ex rel. v. Police Commissioners, 80 Mo. App. 206; State ex rel. v. Commissioners, 184 Mo. 134; State ex rel. v. Gordon, 238 Mo. 168.

      A. F. Evans, J. A. Harzfeld, A. F. Smith and Hunt C. Moore for respondents.
    (1) Relator having been commissioned by the Board of Police Commissioners on February 17, 1909, as police detective, for three years, was a State officer and his salary could not be raised during the term of his office. Sec. 9782-, R. S. 1909; State ex rel. v. Hawes, 177 Mo. 387; State ex rel. v. Smith, 87 Mo. 158; State ex rel. v. Hawes, 177 Mo. 360; State ex rel. v. Stone-street, 99 Mo. 378; Chapman v. Walbridge, 153 Mo. 194; Throop on Public Officers, sec. 347; Phillips v. City of New York, 88 N. Y. 245; Langdon v. New York, 92 N. Y. 427; Reidy v. New York, 185 N. Y. 141; Sec. 8, art. 14, Constitution of Missouri. (2) The Act of 1909 did not repeal Sec. 6192, R. S. 1899, except .in so far as its provisions were inconsistent and repugnant thereto. The provisions of both sections being substantially the same, the new act was merely amendatory of and a continuation of the old act. This is true in spite of the formal words, “An act to repeal section,” etc. State ex rel. v. Mason, 153 Mo. 5'8; Brown v. Marshall, 241 Mo. 728; 36 Cyc. 1084. The only changes between section 9787 and section 6192 are that section 9787 provides for the additional office of detective sergeant and the office of property clerk, and omits the office of chief operator and raises the salaries of the officers and members of the force. The tenure of office is not changed — it remains the same as in the old law; the number of police detectives remains the same in the new as in the old, and the only change with respect to the office of police detective is that the salary is raised from $1080 per year to $1380 per year. (3) The Act of 1909 did not wipe out relator’s old commission and invest him with a new one. State ex rel. v. Hawes, 177 Mo. 393; State ex rel. v. Hawes, 177 Mo. 360; Larew v. Newman, 8Í Cal. 588; Green v. Chosen Freeholders, 44 N. J. L. 388; 23 Am. & Eng. Ency. Law, p. 401.
   RAILEY, C.

On January 6, 1913, relator filed in the circuit court of Jackson County a petition for a writ of mandamus against the Police Commissioners of said city, who were then in authority. On April 28, 1913, an amended petition was filed making the present respondents defendants in said action.

The purpose of this proceeding is to compel respondents, as Police Commissioners- of Kansas City, Missouri, to issue to relator a warrant for $725.83, drawn upon the treasurer or other disbursing officer of said city, and to do every other act and thing necessary to be done by them to secure relator his alleged full compensation of $1380 per annum, during the period between September 15, 1909, and February 17, 1912, as provided by sections 9778 and 9779, Revised Statutes 1909, or show cause why they have not done so. The petition alleged, that section 6192, Revised Statutes 1899, provided for the appointment of relator as a police detective in said city; “that having previously served a probationary period of one year, relator was, upon February 17, 1909, appointed to the above mentioned office of police detective, for a term of three years, subject, however, to five suspensions or removal for cause, and further subject to discharge without cause, notice or hearing, if at any time, in the opinion of the board, the police force were larger than the interests of the public require, or if there are not sufficient funds with which to pay expenses of said police department as then organized.”

It is then averred that the office of police detective was abolished June 14, 1909, by the forty-fifth General Assembly of Missouri; that on said date, said section 6192, Revised Statutes 1899, was repealed and a new section enacted in lieu thereof (Laws 1909, p. 319), now known as section 9787, Revised Statutes 1909, and which provides that police detectives should be paid $1380 per annum.

It is further alleged that, after the passage of above act and upon June 14, 1909, relator was duly and legally appointed to the office of police detective for a term of three years beginning on said June 14, 1909, and immediately accepted said office and continuously thereafter, until June, 1912, occupied the same and performed all the duties relating thereto, and thereby became entitled to the salary. and emoluments of "said office.

It is averred, that from June 14, 1909, to September 15, 1909, relator was paid at the rate of $1380 per annum; that from September 15, 1909, to' February 17, 1912, he was paid at the rate of $1080 per annum; that by reason of the premises, he is entitled to his unpaid salary of $725.83, etc.

An alternative writ of mandamus, substantially following the language of the petition aforesaid, was issued, and respondents, on May 10, 1913, filed their return thereto and allege in substance:

(1) That the circuit court was without jurisdiction to try the case, in this form of action.

(2) They admit that they constitute the present Board of Police Commissioners of Kansas City, Missouri.

(3) They say that relator having served more than one year of probationary service as police detective prior to February 17, 1909, was on said date appointed police detective for three years, at a compensation of $1080 per annum, or $90 per month, as provided in section 6192, Revised Statutes 1899; that from the date of said appointment, up to and including February 17, 1912, relator accepted the sum of $1080 per year as full compensation for his services, except that by mistake he was paid at the rate of $1380 per annum from June 15, 1909, to September 15, 1909; that when said mistake was discovered, he was thereafter paid, and accepted, the sum of $1080 per year, in full satisfaction of his salary from said September 15, 1909, until February, 1912.

It is further averred, that relator’s salary, in view of section 48 of article 4, and section 8 of article 14, of the Constitution of Missouri, could not be increased during Ms term of office from February 17, 1909, to February 17, 1912. .

(4) It is further averred by respondents that from 1909 to 1912, incMsive, there were employed as many officers in the police department of said city as its revenue would permit; that during each of said years, the police department expended all of the money apportioned or appropriated to it; that the Police Commissioners of Kansas City have never had, and have not now, enough money to pay any salaries or parts of salaries, except as heretofore paid; that if the salaries of police officers in the service at the time of the enactment of section 9787, Revised Statutes 1909, had been increased by said statutes to take effect June 14, 1909, the Board of Police Commissioners aforesaid, would have been compelled to reduce the number of officers employed in said police department, and plaintiff would have been discharged; that relator held his position during all of said time, by virtue of the salaries fixed when he was appointed in February, 1909, whereby said board was enabled to retain him in its service.

The return further avers that relator, with full knowledge of all the facts aforesaid, accepted the amount due him twice each month, without objection and in full satisfaction of the amount which Kansas City claimed was due him; that by continuing in said department and accepting the salary paid him, the relator is now estopped • to claim any greater or additional compensation.

The reply of relator put in issue the facts set out in respondents’ return.

Such portions of the evidence as may be necessary will be considered in the opinion.

The trial court found in substance that the office held-by relator was not abolished by the Act of 1909 (Laws 1909, p. 319); that relator was a municipal officer of Kansas City, Missouri, within the contemplation of section 8 of article 14 of our Constitution; and that his salary could not be increased during his term of office. The peremptory writ was accordingly denied, and judgment in due form entered in behalf of respondents. Relator filed motions for new trial and in. arrest of judgment, both of which were overruled, and the cause duly appealed to this court.

I. Section 8 of article 14 of the present Constitution provides, that:

“The compensation or fees of no state, county or municipal officer shall be increased during his term of office; nor shall the term of any office be extended for a longer period than that for which such officer was elected or appointed.”

Did relator, when he was appointed police detective on February 17, 1909, for three years from said date., at a salary of $1080 per annum, come within the purview of section 8 of article 14 supra? The safeguards thrown about relator’s posh tion, by sections 6189, 6190, 6192 and 6193, Revised Statutes 1899, at the time of his appointment on February 17, 1909, constituted him both a state and municipal officer, and precluded his salary from being raised as long as he held the office under said appointment.

In State ex rel. v. Mason, 153 Mo. l. c. 43-4, the Court in Banc, speaking through Judge G-antt, in construing a law relating to police officers, police detectives, etc., similar in some respects to the above sections of the Revised Statutes 1899, said:

“Wherever the Legislature has the right to assume control of a municipal office, it has likewise the right to compel the city to provide for defraying the expenses of such office, and while it is sometimes difficult to draw the line and distinguish whether a given office is of a public or State character or is simply one to subserve a municipal function, it is almost universally conceded that police boards and metropolitan police forces are State officers and fall clearly within legislative control.”

The conclusion reached in the above case was reaffirmed by the Court in Banc in State ex rel. v. Police Commissioners, 184 Mo. l. c. 133, cited by appellant.

It is evident that if a felony should be committed in Kansas City, Missouri, and there were good grounds for believing that the perpetrator had escaped to some distant part of the State, the respondents would have been justified in calling upon relator, while he was police detective, to locate the criminal and assist in bringing him to trial. These officers who are acting as detectives may not only be sent to various parts of the State, if necessary, in the performance of their duty, but they are likewise municipal officers, as they draw their pay from the city; perform services therein; are subject to the control of the police board thereof; hold their office for a definite time, and their salaries are fixed by legislative enactments.

Without extending the discussion of this subject further, we agree with the trial court that if relator was appointed and held the office of police detective under sections 6192-3, Revised Statutes 1899, while performing the services mentioned in-the petition, then he was not entitled to receive but $1080 per annum for such services.

II. It appears from the record that relator was appointed police detective on February 17, 1909, for a period of three years from said date, at a salary of $1080 per annum, but it does not appear from the evidence that he was appointed to said office on June 14, 1909, as alleged in the petition, or at any other date, than February 17, 190-9, although he performed the duties attached to said office from February 17, 1909, to February 17, 1912. He received during said period the salary of $1080 per annum, except from June 14, 1909, to September 15, 1909 .when he was paid $115 per month, or at the rate of $1380 per year.

It is claimed by relator, that the Act of 1909, Laws 1909, page 319, now known as section 9787, Revised Statutes 1909,, in terms repealed section 6192, Revised Statutes 1899, fixing his salary at $1080 per annum, and that as he performed the services sued for after the passage of said act of 1909, which increased the salary of said office to $1380 per annum, lie was entitled to $25 per month more than he received from September 15, 1909, to February 17, 1912, amounting to $725-.83.

The Act of 1909 (Laws 1909, page 319) supra, deals with the appointment and salaries of the police force in cities containing 150,000 inhabitants and less than 350,000. Article '9 of the Revised Statutes 1899, of which said section 6192 was a part, dealt with the same general subject, except that it related to cities of 100,-000, and leás than 300,000 inhabitants.

The emergency clause in the Act of 1909 discloses on its face that it was dealing with the general subject above mentioned. It read as follows:

“Emergency. — The existing law being inadequate for the appointment and equipment of a sufficient police force in the cities herein mentioned, an emergency exists within the meaning of the Constitution, and this act shall take effect and be in force from and after its passage.
“Approved June 14, 1909.”

The Court in Banc of this State, in the recent case of Brown v. Marshall, 241 Mo. l. c. 728, said:

“A subsequent- act of the Legislature repealing and reenacting, at the same time, a pre-existing statute, is but a continuation of the latter, and the law dates from the passage of the first statute and not the latter. [State ex rel. v. Mason, 153 Mo. 23, l. c. 58-59; State ex rel. v. County Court, 53 Mo. 128, l. c. 129-130; Smith v. People, 47 N. Y. 330.]”

The Revision Commission of 1909, in line with the above authorities, at the conclusion of section 9787, Revised Statutes 1899, added the following: “ (R. S. 1899, sec. 6192, amended, Laws 1909, p. 319.)”

*' In view of the foregoing authorities, we hold- that the Act of 1909 (page 319) supra, is in legal effect, an amendment of section 6192, Revised Statutes 1899, and the case should be disposed of accordingly.

We then have a case where relator was appointed as police detective on February 17, 1909, under section 6192 aforesaid, which fixed his term at three years and his salary at $1080 per annum, undertaking to recover by mandamus $25 per month additional, on account of the amendment of said section 6192 in 1909, which increased the salaries of police detectives in said city to $1380 per annum.

Upon a full consideration of the whole case, we have reached the conclusion, that relator, for the services rendered by him was only entitled to recover at the rate of $1080 per annum; and having received all that was due him at,the above ,rate, he is not' entitled to maintain this action.

The judgment of the trial court is accordingly affirmed.

Brown, G., concurs.

PEE CURIAM:

The foregoing opinion of Bailey, C., is hereby adopted as the opinion of the court.

All of the judges concur.

PER CURIAM:

At the April Term, 1916, an opinion was promulgated affirming the judgment in this cause. A rehearing was granted and the cause re-docketed and resubmitted at this term. The only groud of the motion for rehearing was that the opinion omitted consideration of the question whether relator had such a “term” of office as brought him within the purview of section 8 of article 14 of the Constitution of the State, which forbids any increase of the salary of certain officers during their terms of office. There was no evidence supporting respondents’ plea of estoppel, and the correctness of the conclusions reached on questions discussed in the former opinion is not now denied. The sole question remaining is whether relator' had a “term” within the meaning of the constitutional provision.- The solution of this question involves a construction of sections 6189-6192, Bevised Statutes 1899.

Section 6189 provided that every policeman and police officer should first serve a probationary term of one year. This appellant has done. The statute proceeds :

“Having served one year probationary service to the satisfaction of the board, such policeman and police officers may be appointed for an additional term of three years, and shall thereafter be subject to removal only for cause and upon complaint being made, or charges being preferred against them, a copy of which complaint or charges, setting forth the grounds thereof, shall be given to such policeman ... ”

The section then fixed the time and manner of trial on such charges and provided for removal, reprimand or fine, as the board of police commissioners deemed proper in ease the accused was found guilty.

Section 6190 provided that the chief of police might suspend policemen and police officers during the pend-ency of charges, subject to approval of the board at its next meeting. It further provided:

■ “The board may at any timé discharge policemen and police officers for the reason that, in the opinion of the board, the police force is larger than the interests of the public demand, or that there is insufficient money to pay the expenses of maintaining the police force as then organized, and in such cases it shall not be necessary to file any complaint or charges, or permit a hearing by the board, of the policemen or police officers to be removed; but when the vacancies so created shall be filled, the policemen or police officers thus removed shall, if they so desire, be reappointed to fill such vacancies. ’ ’

Section 6191 provided, among other things, that “policemen and police officers whose term[s] of services have expired and who, during the term of their appointment, shall have faithfully performed their duty shall, if otherwise qualified, be preferred by the board in making new appointments.”

Section 6192 fixed the maximum number of policemen and police officers and their salaries, the salary of each of the class of which appellant was a member being fixed.at $1080 per annum.

Appellant contends his appointment under these sections constituted no' fixed term within the meaning of the constitutional provision above mentioned. He argues that the power of the board to remove, without hearing, when the number of policemen, and officers exceeded the number needed or when funds were insufficient to pay the whole force, amounted to a right to remove at pleasure, and, therefore, that he had no “term of office” within the meaning of the Constitution. If the power mentioned is equivalent to one to remove at pleasure, appellant’s position is sound under the previous decisions of this court (State ex rel. v. Gordon, 238 Mo. 168) since such a power is incompatible with the existence of an official “term” within the meaning of the Constitution. The statute expressly provided for appointment for a three-year term, but qualified this by vesting the board with power to remove without hearing upon either of the two conditions mentioned, i. e. (1) when the number of police officers or policemen exceeded the number needed, or (2) when there were insufficient funds to pay the force as constituted. We do not think this equivalent to a power to remove at pleasure. Rather the power was given to remove for cause without a hearing.

“Constitutional or statutory provisions which allow a removal only for cause, or for cause and after notice and a hearing, do not apply to a dismissal of an officer, for some reason other* than his own act or default, and where there is no intent to appoint another in his place. Thus, where a statute provides for notice and a hearing before removal, an officer may be discharged without either, where the discharge is made because the services which he renders are no longer needed, or no funds are provided with which to pay bim . . . The same rule holds where a dismissal is made for the purpose of reducing expenses by diminishing the force.” [Throop on Public Officers, sec. 347.]

Thus it appears relator’s term would have been subject to termination without a hearing for either of the reasons mentioned in the statute even had the statute been silent on the subject; unless, of course, the statute excluded removal on these grounds, which is not this case. To hold that these grounds of removal, exercisable without statutory authority on the ground that such removal is rather an abrogation of the office, transform relator’s term, into one held at the pleasure of the appointing power, would at once remove most officers from the field covered by the constitutional prohibition against increase in salary during their term by converting them, into mere place-holders. It has not, so far as we can find, been held that the rule quoted above affects in any way the applicability of the constitutional provision. It is urged, in addition, that under the statute, after the board has discharged policemen because of lack of need for their services or lack of funds, if they refill the positions thus vacated the discharged policemen are entitled to the appointments, if they desire them, and that this right they might enforce by mandamus, and therefore, their status in the interim is one merely of suspension and their term is thus secure to them. In view of what has been said above, we do not deem it necessary to discuss this question.. Relator was appointed to a three-year term. He sérved it in full. He could have been removed, for matters personal to him, solely on notice, charges and a hearing. The power to remove without a hearing was only upon conditions upon which he might have been removed had the statutes ,not expressly mentioned them. They are conditions- upon which most officers hold their positions. They are not such as to convert a term into a holding at pleasure. Relator had an official term within the meaning of the Constitution, and the judgment must be affirmed.


author: BOND, J.

text:
    SYBILLA SCHNEIDERHEINZE, Appellant, v. OTTO BERG et al., Executors of Will of GOTTLIEB BERG, et al.
    Division One,
    December 20, 1916.
    1. JURISDICTION: Irregularities: Names of Plaintiff: Acknowledgment of Sheriff’s Deed: Collateral Attack. If the court has jurisdiction of the persons of defendants and of the subject-matter of the cause of action, minor irregularities in the proceedings — such as variances in the spelling of plaintiff’s name in the proceedings after the filing of the petition, the failure of the recorder to transcribe on his book the seal of the court to the clerk’s certificate of the sheriff’s acknowledgment to his deed, and a failure to give notice to defendants when a second judgment was rendered at the same term after the first had been set aside — -are not open to collateral attack.
    2. SERVICE OF SUMMONS: On White Member of Family. The Act of 1875, Laws 1875, p. 105, repealed Sec. 7, chap. 164, G. S. 1865, which provided that, after service upon the first defendant, service could be made upon a later defendant not found by leaving a copy of the writ at his usual place of abode with some white member of his family over the age of fifteen years, and substituted a new section in lieu of said section 7, from which the word “white” was omitted; and a service of process in 1879 in accordance with the Act of 1875 gave the court jurisdiction of defendants.
    3. LIMITATIONÍS: Married Woman: Twenty-four Years. A suit by a married woman to recover lands conveyed to her by a sheriff’s deed is not barred if brought within twenty-four years after such conveyance, if she was married at the time the deed was made and has been since.
    4. HOMESTEAD: Acquired by Devise: Exemption From Execution. Land acquired by will prior to 1887, whether occupied by the devisee as a homestead or not, was not exempt from execution for the devisee’s debts. A sale under execution issued against lands acquired by devise in 1862, made under execution issued in 1888 under a valid judgment rendered in 1879, carried the title to the purchaser, even though such lands were occupied by the devisee as a homestead at the time of the judgment and at the time of the sale.
    5. -: Lands Devised Upon Condition: Deed of Executor. Where the will of the owner of land devised it to his son upon condition that he pay into the hands of the executor, within twelve months, one thousand dollars, and that was done, a deed thereupon made by the executor conveying the land to the son did not convey the title, hut the son’s title accrued through the devise in the will of his father, and he took nothing by the deed of the executor, who had neither title, nor power to convey.
    Appeal from "Warren Circuit Court. — Eon. James D. Barnett, Judge.
    Reversed and remanded.

      Muench, Walther S Muench, J. E. Schaper, E. F. Eecker and Emil Roehrig for "appellant.
    (1) The regularity of the proceedings in the original suit on the note for $6400, preliminary to the judgment and the execution, cannot be questioned in this proceeding, which is wholly collateral to and independent of that suit. Lovitt v. Russell, 138 Mo. 482; Morrison v. Turnbaugh, 192 Mo. 445; Reed v. Nicholson, 158 Mo. 624; Talbot v. Rowe, 171 Mo. 421; Warren v. Manwarring, 173 Mo. 21; Freeman on Executions, sec. 296, p. 1709; Lieber v. Lieber, 239 Mo. 55; Lumber Co. V; Carroll, 255 Mo. 369; Skillman v. Clardy, 256 Mo. 309. Under no circumstances could the defendants take advantage of any irregularities not pleaded. Shelton v. Franklin, 224 Mo. 367. (2) The trial court in the original suit necessarily retained jurisdiction of the judgment rendered in that suit on April 24, 1879, during the remainder of the term at which it was rendered and therefore had jurisdiction to set aside this judgment and to enter a new judgment on May 9, 1879, within the same term, the defendants in the suit having remained in default, after due service. Aull v. Trust Co., 149 Mo. 13;' Hesse v. Seyp, 88 Mo. App. 66; Smith v. Perkins, 124 Mo. 50; Black on Judgments, secs. 326, 346; Ewart v. Peniston, 233 Mo. 695; Shuck v. Lawton, 249 Mo. 173. (3) The absence of the seal of the circuit court from the clerk’s certificate of acknowledge on the sheriff’s deed does not affect the validity of the deed. Hammond v. Cordon, 93 Mo. 223; McCay v. Cassidy, 69 Mo. 429; Hartwell v. Parks, 240 Mo. 548. (4) The name of the plaintiff having been properly spelled “Kuechlin” in the petition, the summons and the copies of the petition made by the clerk in the original suit, the clerk’s misprision in spelling it “Kruechlin” in the judgment is not such an irregularity as will render the judgment void, jurisdiction having been properly acquired. Morrison v. Turnbaugh, 192 Mo. 445; Union Bank v. McWhaters, 52 Mo. 34; Dixon v. Hunter, 204 Mo. 392; Ellis v. Jones, 51 Mo. 181; Gray v. Howies, 74 Mo. 424; Davis v. Kline, 76 Mo. 313; Walker v. Railroad, 193 Mo. 475. This point is fully covered by the Statute of Jeofails, R. S. 1909, sec. 2119. (5) The further misprision of the clerk in spelling the plaintiff’s name “Kruechline” in the execution issued in the original suit is not sufficient to invalidate the sheriff’s sale and deed. Freeman on Executions, sec. 43; Davis v. Kline, 76 Mo. 313; Ellis v. Jones, 51 Mo. 188. - (6) This action is not barred by the Statute of Limitations, because (a) It was brought within twenty-four years after December 24, 1888, the day on which the sheriff’s deed to plaintiff was executed, and recorded. R. S. 1909, sec. 1881. (b) The plaintiff was married several years prior to the levy and sale and before the passage of the Married Women’s Act, and has remained under coverture ever since, so that the statute could not begin to run. Graham v. Ketehum, 192 Mo. 1. (7) Gottlieb Berg, one of the defendants in the original suit, whose property was conveyed by the sheriff’s deed, acquired title to this property by devise, through the will of his father, George Berg, and not by purchase, prior to the enactment of the Statute of 1887, placing homesteads ac‘quired by descent or devise upon'the same footing as those acquired by purchase; therefore, the homestead established by him on the property in 1867 did not exempt it from execution and sale for the indebtedness incurred thereafter and reduced to judgment ■ on May 9, 1879, and the sheriff’s deed passed title to plaintiff and Fisher. G. S. 1865, sec. 7, chap. 3, title 29; Laws 1887, pp. 197-8; Lohring v. Groomer, 142 Mo. 1; Spratt v. Early, 169 Mo. 367; Clark v. Tilias, 173 Mo. 648. The deed from the executor of George Berg’s estate was a nullity, no authority to execute such deed, or any deed, having been granted the executor by’ the will. Aubuchon v. Lory, 23 Mo. 99; Sturgeon v. Chambers, 40 Mo. 485; Thorp v. Miller, 137 Mo. 239'; Barnard v. Keathley, 230 Mo. 227; R. S. 1909, sec. 139.

      T. W. HucJcriede and Rosenberger & Dowell for respondents.
    (1) No valid judgment could be rendered against Mittler and Berg on either April 24, 1879, or May 9, 1879,' because the return of the sheriff on the writ issued is insufficient to confer jurisdiction upon the court to render a valid judgment. Rosenberger v. Gibson, 165 Mo. 16. The second judgment rendered May 9, 1879, is a nullity and is void. This judgment was rendered without notice to the defendants after judgment had been rendered on April 24, 1879. If the return of the sheriff be held sufficient to confer jurisdiction on the court, then the judgment of April 24, 1879, would have been a valid judgment. That judgment, however, on plaintiff’s motion could not thereafter be set aside and a second valid judgment rendered against the defendants, Mittler and Berg, without notice to them. After the first judgment was rendered Mittler and Berg were no longer in court. (2) The sheriff’s deed was improperly admitted in evidence. The name of . the plaintiff during the proceedings had become so distorted and changed from the time the petition was filed until execution was issued and sale was had that the execution became a nullity and a decree based thereon amounted to naught. The record of the sheriff’s deed failed to show that the acknowledgment had been attested by the seal of the court, and the deed was improperly admitted in evidence, and the subsequent admission of the circuit clerk’s record of the acknowledgment as shown by the circuit court records could not cure this defect. Adams v. Buchanan, 49 Mo. 64. (3) Gottlieb Berg had a homestead in the lands in suit. The first homestead statute in Missouri was. passed in 1865, and expressly exempts the levy of an execution upon existing estates; and Gottlieb Berg had such an existing estate as prevented a sale of his homestead under execution. State ex rel. v. Diveling, 66 Mo. 373. Blackstone says, “If an ancestor devises his estate to his heir at law by will with other limitations or in any other shape than the course of descent would direct, such heir takes by purchase.” Gottlieb Berg took title to the lands in question by purchase. The evidence of his purchase was the executor’s deed, which was filed for record in 1863. The note which formed the basis of the suit upon which judgment was rendered and execution issued was given long after Gottlieb Berg had come into the full possession of his homestead rights. (4) A sale of a homestead under execution without notifying the execution debtor of his homestead rights and setting oil a homestead to the execution debtor passes no title to the purchaser at the execution sale. Macke v. Byrd, 137 Mo. 682; Ratliff v. Graves, 132 Mo. 76; Broyles v. Cox, 153 Mo. 242; Creech' v. Childers, 156 Mo. 338.
   BOND, J.

I. Plaintiff, on September 6, 1911, sued defendants under section 2535 of the statutes to recover a one-half interest in seventy-seven and one-half acres of land in Warren County. Judgment was rendered against plaintiff from which she prosecuted an appeal to this court.

Thé evidence disclosed that in the year 1862 George Berg died testate; that under paragraph two of his will he devised the land in controversy to his son Gottlieb Berg on condition that he should pay into the hands of the executor named in the will, within twelve months, the sum of one thousand dollars. This money . , , .. , . ... was paid by the devisee, whereupon the executor executed a deed conveying the land to him as devised in the will. This deed was duly recorded in 1863. The grantee took possession of the land as owner, and at his death, in 1909, devised the property to Gustavus Berg on condition of his paying into the estate of Gottlieb Berg the sum of five thousand dollars. During the lifetime of Gottlieb Berg, to-wit, on November 10, 1875, he and one Charles Mittler signed as sureties a promissory note payable to the plaintiff six months thereafter, under her maiden name of Sybilla Keuchlin; that on March 25, 1879, plaintiff brought an action against the two sureties for the amount due on said note. The summons issued in this suit bore the following return of the officer executing it:

Served the •within writ in the county of Warren, State of Mo. this the 27th day of Mch., 1879, hy delivering a true copy of the same together with a copy of the within petition to the within-named Charles Mittler & by leaving a true copy of said writ at the usual place of abode of the said Gottlieb Berg with a member of his family over the age of 15 years, & on said day and in said Co. Fee $2.00
S. B. Cook,
Sheriff of Warren County.

The defendants having made default, at the next term of the court plaintiff took judgment for the amount due on said note and, thereafter, at the same term of court, without any notice to the defaulting defendants, procured the setting aside of said judgment and the rendition of a second judgment, May 9, 1879.

This judgment is in the name of Sibyla Kreuchlin. No action was taken by the plaintiff to enforce this judgment until July 3, 1888, when an execution was issued thereon, whereunder the land in controversy was sold to plaintiff and one J. 0. Fisher, at and for the sum of one hundred and fifty dollars, whereupon the sheriff of the county executed a deed to Sybilla Schneiderheinze (plaintiff having married in the meantime) and J. C. Fisher, dated December 3, 1888, which was duly recorded except that the seal of the court was not affixed by the clerk to his certificate of the acknowledgment of the deed. Twenty-three years after plaintiff’s obtention of this deed, the whole of which period the land was in the adverse possession of defendants or their ancestor, the present action was begun. Shortly before this suit Fisher, the co-grantee in the sheriff’s • deed, quitclaimed his interest to defendants for five hundred dollars, accompanying it with an affidavit that he owned any and all interest which plaintiff acquired under the sheriff’s deed.

The evidence showed that Gottlieb Berg used the land in his lifetime as a homestead for himself and family.

II. In support of the judgment below respondent calls attention to certain subsequent variances in the spelling of plaintiff’s name in the proceedings after the filing of her petition; and also to the fact that when plaintiff obtained the second judgment a^er the vacation of the first, no notice was given to either, of the defendants, and to the language of the sheriff’s return on the original summons against Gottlieb Berg.

There is no merit in any of these contentions, nor in the further claim that the record of the sheriff’s deed was inadmissible (the original having been lost) because of the failure of the recorder of deeds to transcribe on his books the seal of the court to the certificate of the clerk that the deed had been duly acknowledged. This “farrago of irregularities” is unavailable as attacking the validity of the title devolved on plaintiff under her suit to recover the amount of the note, for the reason that if the court in that case was possessed of jurisdiction of the persons of the defendants and the subject-matter of the cause of.action, then none of its proceedings are open to the collateral attack attempted to be made in the instant ease. [Rivard v. Railroad, 257 Mo. l. c. 168; Lovitt v. Russell, 138 Mo. l. c. 482.]

It follows that the only inquiry on this appeal is whether the court acquired jurisdiction of the person of Gottlieb Berg, the ancestor of defendants, through the return of service of process made by the sheriff, which is quoted above.

It is erroneously stated in the brief of respondent that the sufficiency of this return must be judged by the provisions of the General Statutes of Missouri of 1865, chapter 16áf section 7, which, with reference to service of process upon several defendants, provides as to those who are summoned subsequently to the first defendant, that the service must be made in case such later defendants are not found, by leaving a copy of the writ at the usual place of abode of the defendant with some (white) person of his family over the age of fifteen years. [G. S. 1865, sec. 7, ch. 164.]

That statute was ■ repealed by the substitution of another mode of service upon such defendants in Laws 1875, p. 105, where it will, be seen the word “white” is stricken out. This act of 1875 took effect from and after passage and was in full force and vigor when the sheriff made his return on March 27, 1879, in' strict conformity with the statute then regulating the servicé of process in such cases. This substitutionary statute was evidently overlooked by the learned counsel for respondent. We, therefore, conclude that the court was in possession of jurisdiction of the person of Gottlieb Berg, through the above quoted return of the sheriff at the time plaintiff commenced her suit and recovered her judgment.

III. It is further contended by respondent in support of the present judgment that the bar of the Statute of Limitations attached. This is a misconception of the law. The statute expressly provides, in case Q£ a married woman suing to recovér her lands, that the bar does not become absolute until after the lapse of twenty-four years. [R. S. 1909, sec. 1881; Graham v. Ketchum, 192 Mo. 15.] In this case the evidence is undisputed that the plaintiff was a married woman at the time she obtained the sheriff’s deed to the land in controversy and remained so to the date of the trial, and that the suit was begun within twenty-four years after the sheriff’s deed to her.

IV. The next contention of the learned counsel for defendants is that the sale is void because the land in question was used by the ancestor of the defendants as a homestead. There is no merit in this contention.

The land was acquired not by deed, but ^ev^se unc[er a wi]i; ancl the rule in this

State prior to 1887 was that the homestead was exempt from any indebtedness sought to bq enforced against it which arose after the filing for record of the deed creating the estate; but was not protected against such indebtedness if the homestead was acquired by a will or by descent cast. [Laws 1887, pp. 197, 198; Clark v. Thias, 173 Mo. l. c. 648; Spratt v. Early, 169 Mo. l. c. 368; Loring v. Groomer, 142 Mo. 1.]

In this case the title of defendants’ ancestor accrued through a devise in the will of his father, he took nothing under the deed of the executor who had neither title nor pownr to convey under the will. [Barnard v. Keathley, 230 Mo. l. c. 227; Thorp v. Miller, 137 Mo. l. c. 239; Sturgeon,, v. Schaumburg, 40 Mo. l. c. 483.]

It follows, in this case that the judgment was erroneous. It is, therefore, reversed and the cause remanded for further proceedings not inconsistent with this opinion.

All concur.


author: RAILEY, C. PER CURIAM:

text:
    WOODWARD HARDWARE COMPANY, Appellant, v. W. W. FISHER et al.
    Division One,
    December 20, 1916.
    1. CORPORATIONS: Failure to Register: Penal Statute: Civil Liability. The Corporation Registration Act of 1913, Laws 1913, p. 171, is penal in its nature, and must be strictly construed in determining the liability of the directors of a corporation, as partners, for its debts.
    2. -:-: Power of Secretary of State to Forfeit Charter. The charter of a corporation doing business in this State cannot be forfeited solely because it has failed to file its return as required by the Corporation Registration Act. Before the Secretary of State can declare a forfeiture and cancel the certificate of such a corporation, he must have on file in his office the certificate of the recorder of deeds of the county in which said corporation is located, showing that the name of the corporation so failing was posted in his office for twenty days as required by section 8 of the act, etc.
    3. -:-: Business Before Forfeiture: Prosecution. No prosecution can legally be sustained against the incorporators for an exercise or.attempt to exercise its’corporate privileges and powers, nor can the directors be held personally liable as partners for its debts, until the charter rights and privileges of a corporation to do business in this State have been forfeited and cancelled by the Secretary of State, as provided by sections 12 and 20 of the Act of 1913. It is only for acts or business transactions done after the forfeiture of the charter that the directors can be held to be either criminally or civilly liable.
    4. -: -: Date of Forfeiture. The date on which the forfeiture and cancellation of the charter of a corporation are actually entered upon the books in the office of the Secretary of State, and not some previous day on which the entry recites the charter had been forfeited and cancelled, is the true date of the forfeiture and cancellation.
    Appeal from Mississippi Circuit Court. — Hon. Frank Kelly, Judge.
    Affirmed.

      Russell & Joslyn for appellant.
    (1) There is no question but what’the Union Warehouse & Implement Company violated the provisions of the act in failing to comply with sections 3, 4 and 5, Laws 1913, p. 171, and, according to section 10, its corporate rights and privileges were forfeited. 2 Bouvier’s Law Dictionary (3 Ed.), p. 1280. (2) Failure •of the corporation to comply with sections 3, 4 and 5 of the act before the first day of December, 1913, was a violation of the law, and, ipso facto, forfeited the charter of the corporation, and no clerical act of the Secretary of State'was necessary to make the forfeiture effective. Ford v. Railroad, 52 Mo. App. 439. (3) Under this act, section 20, if the debt sued for was the debt of the Union Warehouse & Implement Company, then clearly the defendants who constituted the board of directors are liable. (4) The debt sued for was created entirely after the passage of the act and after it became effective. It is, therefore, valid and operative against the defendants, even though they may .have become directors before its passage. 10 Cyc. 885~g; Falsoner v. Campbell, 8 Fed. Case No. 4620,. 2 McLean, 195. (5) The act contains but one subject, and that is clearly expressed in its title. Ferguson v. Gentry, 206 Mo. 189; State ex rel. v. Vandiver,' 222 Mo. 206.

      Haw & Broivn for respondents.
    (1) The statute under which thip action is brought • (Laws 1913, pp. 167-174) is highly, penal. Kreitzer v. "Woodson, 19 Mo. 230; Cary v. Smeltz, 141 Mo. App. 574. The statute is not only penal, but is a criminal statute and should be strictly construed and not extended or enlarged by judicial construction so as to embrace offenses and persons not plainly within its terms. State ex rel. v. Robinson, 253 Mo. 284; State v. McMahon, 234 Mo. 614; State v. Koock, 202 Mo. 235; State v. Reed, 125 Mo. 48. (2) Nowhere does the title clearly express, or even indicate, that the act affects anything except corporations. Officers and directors of corporations, or other individuals, are not 'mentioned. Section 20 of the act, and other sections, undertake to make officers and directors liable and to inflict • fines and penalties on them. The act is, therefore, in violation of the constitutional provision and is void, in so far at least at it undertakes to impose penalties and liabilities on individuals. Constitution, art. 2, sec. 28; State v. Sloan, 258 Mo. 305; State v. Rawlings, 232 Mo. 544; State ex rel. V. Revelle, 257 Mo.. 529; State ex rel. v. Gordon, 233 Mo. 387; State v. Fulks, 207 Mo. 26; State v. Coffee & Tea Co., 171 Mo. 634. (3) Section 15, article 2, Constitution, provides that “no ex post facto law, nor law impairing the obligations of contracts,, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be passed by the General Assembly.” It will be seen that section 20 of the Act of 1913 undertakes to make the officers and directors of a corporation “which shall so violate the provisions of this act” liable as partners for the debts of the corporation, presumably all debts, whether incurred before or after the passage of the act. (4) The act in question is void because too vague, indefinite and uncertain to be capable of practical construction and enforcement. It fails to specify, the debts for which officers and directors shall be liable for violating its provisions, fails to specify what officers shall be liable, and in many other respects its terms and requirements are confusing and indefinite. Such laws are void. State ex rel v. Ashbrook, 154 Mo. 375; State ex inf. v. Street Ry. Co., 146 Mo. 155. Whatever difference of opinion there may be as to the constitutionality or the definiteness and certainty of the provisions of the act under which appellant seeks to recover, a careful reading of the law and of the evidence produced in this case leaves no room for uncertainty on one point, and that is that the respondents do not come ■ within the provisions that render officers and directors of corporations personally liable for the debts thereof.
   RAILEY, C.

Plaintiff, an Illinois corporation, sued defendants as directors of the Union Warehouse & Implement Company, a Missouri corporation, duly organized on February 2, 1909, and engaged in the general mercantile business in the town of East Prairie, Missouri. It is averred in the petition that the Missouri corporation continued to do business until December 2, 1913, when its charter was duly forfeited for failure to register as required by the laws of this State; that defendants continued to exercise the powers and privileges of said Missouri corporation, from December 2, 1913, until about the 1st of. January, 1915; that they continued business under their said corporate franchise by purchasing and selling goods, wares and merchandise; that after the forfeiture aforesaid, and while engaged in the business aforesaid, the defendants bought from plaintiff, between April 9, 1914, and October' 21, 1914, goods of the value of $10.62, sued for herein, and that no part of said sum has ever been paid, etc.

Defendants, Fisher, Davidson, Morgan and Sager, filed a joint amended answer to said petition. They admitted the incorporation of plaintiff, but denied each and every other allegation of the petition. They charge in said answer that the acts of the General Assembly of the State of Missouri, for 1913, Laws 1913, pages 167 to 174, inclusive, and particularly section 20 of' said act, under which this suit was brought, are unconstitutional and void, for the reason that the title of said act does not clearly express the matters contained therein, and particularly those in section 20 thereof, as required by section 28 of article 4 of our Constitution.

It is averred that said section 20 undertakes to impose penalties on individuals and on officers and directors of certain corporations therein described, while the title of said act clearly indicates the imposition of penalties on corporations only. It is further alleged, that said act is unconstitutional, because it is an ex post facto law; is retrospective in its operation, and violates section 15 of article 2 of our Constitution, in that it attempts to make certain 'persons, therein described, liable for debts and obligations created by certain corporations, whether said debts were created before or after the charters of such corporations were forfeited; and whether or not such debts were created and liabilities incurred before the passage of said act. It is further averred that said act undertakes to impose new and unusual obligations and penalties on corporations already created and existing prior to the passage and going into effect of said act; that it creates and imposes new and unusual obligations on individuals connected with such corporations. It is further charged in the answer that said act is void because too vague, indefinite and uncertain in its provisions, to be capable of practical construction and enforcement, in that it does not sufficiently specify and designate what officers, directors- and persons of such corporations as may violate its provisions shall be liable for the debts of such corporations; and does- not sufficiently describe or specify for what debts of such corporations, said officers, directors and persons shall be liable.

It appears from the testimony of Cornelius Roach, Secretary of State, that an entry was made in the records of his office on October 11, .1915, stating that “on December 2, 1913,” the charter of the above Missouri corporation was forfeited. He testifed that no certificate was ever sent to the recorder of deeds in Mississippi County, Missouri, stating that the Union Warehouse &'Implement Company was suspended; nor did he ever receive from the recorder of deeds of said county, any certificate or statement, that a certificate showing the suspension of said Missouri corporation had been posted in his office for a period of twenty days. No entries were made, of any kind, on the records of his office with reference to said corporation, until after May 22, 1915.

It is conceded that plaintiff’s account is correct, and that the last item therein was furnished to the . Union Warehouse & Implement Company on October 21, 1914,

It appears from the evidence, that the Union Warehouse & Implement Company, through its directors, notified Sexton, general manager, in October, 1914, not to buy any more goods, and he bought no more thereafter. The business was closed out in March or April, 1915.

On February 29, 1916, after hearing the evidence, the circuit court found the issues in favor of the defendants and entered its judgment accordingly. Plaintiff filed a motion for a new trial, which was overruled, and the cause was duly appealed to this court.

I. Section 20 of the Act of 1913, Laws 1913, page 171, is assailed by respondents on the ground that the title to said act does not clearly express the matters contained therein, as required by section 28 of artide 4 of our Constitution.’ The title to the above act read as follows:

“An act to provide for annual registration, supervision, and filing of annual reports of certain corporations; suspension and forfeiture of corporate charters for violation of this act; reinstatement after suspension or forfeiture; and fixing fees for registration, prescribing fines and penalties for violation, and repealing all acts in conflict therewith, with an emergency clause.”

Section 20 of said act reads as follows:

“Any person, or persons, who shall exercise, or attempt to exercise, any of the powers, privileges, or franchises of any corporation after the certificate, or license, of same has been forfeited and cancelled as in this act provided, shall he deemed guilty of a misdemeanor, and upon conviction punished as hereinafter provided; and the officers and directors, or principal agent in Missouri, if a foreign corporation, of any corporation which shall so violate the provisions of this act shall he held as partners and become severally and individually liable for the debts of such corporation.” The plaintiff is seeking to hold defendants liable for its demand on the theory that the charter of the Union Warehouse & Implement Company was forfeited and cancelled on December 2, 1913, because it failed to file its report with the Secretary of State, as required by said act; and that thereafter these defendants bought from plaintiff the goods in controversy, in the name of said Missouri corporation, and became liable as partners therefor. Although a corporation chartered under the laws of this State may have complied with the provisions of the above act, and purchased goods while in good standing with the State, yet section 20, supra, would make the directors of such corporation personally responsible, as partners, for said goods, if thereafter, the charter was forfeited and cancelled and other goods were bought by said corporation, subsequent to the date of such forfeiture and cancellation. Whether the title to said act be casually or carefully considered, there is not the slightest intimation therein that individuals should be held liable, as partners, for debts which they never personally contracted, and which were purchased solely by the corporation in its corporate name. The members of the General Assembly, in voting upon said act, might have understood in reading the title thereto, that the officers of a corporation, whose charter had been forfeited and cancelled, might be punished under the police power of the State, for continuing to carry on th business of such corporation after its charter had been legally forfeited and cancelled, yet the title to said act would not have imparted any notice to the lawmakers that personal liability would be imposed upon the officers of such corporations for debts which it alone had contracted in good faith.

Section 28 of article 4 of our Constitution provides that:

“No bill . . . shall contain more than one subject, which shall be clearly expressed in its title.”

It is manifest that the framers of our Constitution inserted in the organic law the above provision, in order that members of the Greneral Assembly, when reading the title to an act, shall be advised, at least in a general way, of the subject sought' to be covered in the body of same. [State v. Sloan, 258 Mo. l. c. 313-314; State ex rel. v. Revelle, 257 Mo. l. c. 538-40; State v. Distilling Co., 237 Mo. 103; Williams v. Railroad, 233 Mo. 667; State ex rel. v. Gordon, 233 Mo. l. c. 387-8; State v. Rawlings, 232 Mo. 544; St. Louis v. Wortman, 213 Mo. 131; State v. Fulks, 207 Mo. 26; State v. Great Western Coffee & Tea Co., 171 Mo. 634; Mengel Box Co. v. Fowlkes, 186 S. W. (Tenn.) 91; National Surety Co. v. Murphy-Walker Co., 174 S. W. (Tex. Civ. App.) 997; Burton v. Monticello & Burnside Turnpike Co., 173 S. W. (Ky. App.) 144; Cooley on Constitutional Limitations (7 Ed.), p. 205.]

Plaintiff’s right of recovery is based upon section 20 of the above act (1913), which reads as follows:

“Any person, or persons, who shall exercise, or /attempt to exercise, any of the powers, privileges, or franchises of any corporation after the certificate, or license, of same has been forfeited and cancelled as in this act provided, shall be deemed guilty of a misdemeanor, and upon conviction punished as hereinafter provided; and the officers and directors ... of any corporation which shall so violate the provisions of this act shall be held as partners and become severally and-individually liable 'for the debts of such corporation

That part of section 20 italicized as above, when considered in the light of foregoing authorities, is in conflict with section 28 of article 4 of our Constitution, and is hereby declared void.

In view of the conclusion just reached, we deem it unnecessary to consider or determine the validity of the remaining portions of above law.

II. The Act of 1913 is penal in its nature and must be strictly construed in determining the liability of defendants in this action. Section 8 of said act provides that where the corporation fails to register before October 1st its charter-shall be suspended. [Laws 1913, p. 169.] It is- then made the duty of the Secretary of State to certify to the recorder of deeds of the county in which such suspended corporation is located, the fact of such suspension, and the recorder of deeds shall post the name of such corporation in a conspicuous place in his office for a period of twenty days, and at the expiration thereof, not later than the first day of December, certify to the Secretary of State that the name of such suspended corporation was so posted in such recorder’s office. It further provides that the recorder shall be guilty of a misdemeanor, etc., if he fails to certify the name of such corporation to the Secretary of State, as required by said act.

Sections 10 and 12 of the act read as follows:

Section 10: “If any corporation shall fail to comply with the provisions of this act, on or before the first day of December, the corporate rights and privileges of such corporation shall be forfeited, and the Secretary of State shall thereupon cancel the certificate, or license of such corporation by appropriate entry on the margin of the record thereof, whereupon all the powers,'privileges and franchises conferred upon such corporation by such certificate, or license, shall cease and determine, and the Secretary of State shall notify such corporation by mail, addressed to it at its postoffice address as disclosed by the records in bis office, that its corporate existence and rights in this State have been forfeited and cancelled. ”

Section 12: “Failure to comply with the provisions of' this act, and the certificate of the recorder of deeds that the name of the corporation so failing was posted, as required in section eight of this act, shall be sufficient evidence upon which the Secretary of State shall declare and enter forfeiture of its corporate rights and privileges as in this act provided.”

We are clearly of the opinion that the General AsT sembly, in the passage of said act, never intended that the charter of a corporation doing business in this State should be forfeited and cancelled solely by reason of its failure to file its return as required by law.

As a condition precedent to the right of the Secretary of State to declare a forfeiture and cancel the certificate of such corporation, he must have on file in his office, the certificate of the recorder as required by section 12, supra. Even if section 20 of said act were valid as a whole, no prosecution could be legally sustained thereunder until the charter rights and privileges of said corporation to do business in this State had been forfeited and cancelled by the Secretary' of State as aforesaid. Even then, in.order to sustain a conviction thereunder, it would have to appear from the record that the officers of such corporation proceeded against had done or attempted to do, business in its name after such charter had been legally forfeited. and cancelled. Turning to the evidence in this case, we find that neither the Secretary of State nor the Recorder of Mississippi County ever took any action in respect to the forfeiture and cancellation of the charter of said Union Warehouse & Implement Company, as required by sections 8 and 10 of said act. The Secretary of State testified upon this subject, as follows:

“No entries of any kind were made on the records in my office with reference to the Union Warehouse & Implement Company, until some time during 1915, and then the first and only entry was made to the effect that the charter had been forfeited December 2, 1913.”

He further gave it as his opinion that this “nunc pro tunc” entry was not made until October 11, 1915. The last item in plaintiff’s account was bought on October 21, 1914. There is, therefore, an entire failure of proof, as to the forfeiture arid cancellation of the charter of said company; and also a failure of proof tending to show that any of the goods in controversy were bought after October 11, 1915, when said nunc pro tunc entry was made.

On the undisputed facts disclosed by the record, the plaintiff has no case.

The judgment of the trial court is accordingly affirmed.

Brown, G., concurs.

PER CURIAM:

The foregoing opinion of Parley, CL is hereby adopted as the opinion of the court.

Graves, P. J. and Bond, J,, concur; BlaÁr J., concurs in paragraph two and result and expresses no opinion as to paragraph one. Woodson, J., dissents as to paragraph one and concurs as to paragraph two and result.


text:
    GEORGE JORDAN et al. v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant.
    Division One,
    December 20, 1916.
    1. JURISDICTION: Decision of the Court of Appeals: Conflict of Decisions. A decision or opinion of a court of appeals' in a case of which it had no jurisdiction is a nullity, and a cause cannot be certified to the Supreme Court by another court of appeals on the ground that its decision therein is in conflict with said prior decision of said Court of Appeals.
    2. -: -: Transfer of Causes from One Court of Appeals to Another. After the Supreme Court has held that the statute directiug the transfer of a cause from one Court of Appeals to another was invalid and that a Court of Appeals had no jurisdiction of said cause so transferred to it, the opinion or attempted decision previously rendered therein hy said Court of Appeals became a nullity, and another Court of Appeals is not authorized to subsequently transfer to the Supreme Court a case pending in it on the ground that its decision therein is in conflict with such prior nullified decision.
    Appeal from Putnam Circuit Court. — Now. G. W. Wanamaker, Judge.
    Transferred to Kansas City Court of Appeals.

      O. M. Spencer, A. W. Mullins, Palmer Trimble and M. G. Roberts for appellant.

      N. A. Franklin and Fogle & Fogle for respondents.
   BOND, J.

I. This case was certified to this court hy the Kansas City Court of Appeals in a per curiam opinion, setting out, in substance, that the action was one for damages suffered by a carload of horses shipped by the plaintiff from Lemon, Missouri, ^ Buffalo, New York, under a shipping contract with the defendant, which transported the horses to Chicago, where they were delivered -to another carrier under a new contract to take them to Buffalo, New York.

The contract of shipment showed an agreed valuation of one hundred dollars for each horse and non-liability of the defendant above that sum.

The issues presented involved the application of an Act of Congress known as the Hepburn Act, as amended.

There was a judgment in the trial court for $850 in favor of plaintiff, which was duly appealed to the Kansas City Court of Appeals, and affirmed by that court, but certified to this court for final determination for the reason that the Springfield Court of Appeals had construed the amended Hepburn Act in a contrary way in the case of McElvain v. Railroad, 151 Mo. App. 126. [See Per Curiam Opinion of Kansas City Court of Appeals on file in this case.] I

II.' After the creation of the Springfield Court of Appeals, under authority delegated to it by the Constitution, the Legislature by the Act of June 12, 1909 (Laws 1909, p. 396), provided for the transfer of causes ^7 the judges of one court of appeals to another. jn pursuance of that act the St. Louis Court of Appeals transferred the case of Me-. Elvain v. Railroad to the Springfield Court, of Appeals, which latter -court assumed jurisdiction and rendered á decision therein on November 10, 1910, but certified the case to this court for final determination because of a conflicting decision rendered by the Kansas City Court of Appeals. Thereafter (December 31, 1910) this court in Banc, in a case challenging the jurisdiction of the Springfield Court of Appeals of another case which had been similarly sent to it from the St. Louis Court of Appeals, held that the act of the Legislature authorizing such transfer by the judges of the courts of appeals from one court of appeals to another, was absolutely void and vested no jurisdiction in the Springfield Court of Appeals to hear or decide cases so sent to it. [State ex rel. v. Nixon, 232 Mo. 98.] Thereupon this court transmitted to the St. Louis Court of Appeals the said case of McElvain v. Railroad so that it should exercise the jurisdiction vested in it by the appeal originally taken to that court. This the St. Louis Court of Appeals proceeded to do and rendered a decision and judgment in said cause. [McElvain v. Railroad, 176 Mo. App. 379.]

Although the decision of the Springfield Court of Appeals appears in the printed reports (151 Mo. App. 126, supra) it was a simple nullity after the decision of this Court in Banc to the effect that the Springfield Court of Appeals had no power of jurisdiction to decide that case and after this court sent that case back to the St. Louis Court of Appeals for final determination. The views expressed by the Springfield Court of Appeals were not, therefore, an authoritative expression of the law of this State, nor were they a “previous decision of that court;” for it had been conclusively adjudged that the Springfield Court of Appeals was not possessed of any jurisdiction whatever in the cause of McElvain v. Railroad, supra. Clearly, therefore, what they wrote upon that subject had none of the qualities of a decision of that case and, at most, reflected the views of the law of the author of the opinion and his associates as to a matter not before them.

It follows that the Kansas City Court of Appeals was not authorized, under the provision of the Constitution relative thereto, to certify the present case to this court and the cause must be retransferred to the Kansas City Court of Appeals for final determination.

The issues presented in this case may now be resolved by the Kansas City Court of Appeals under the guidance of the “last previous decision” of this' Court in Banc (June 1, 1915), wherein the construction given to the amended Hepburn Act by the Supreme Court of the United States has been adopted by this court. [Donovan v. Wells, Fargo & Co., 265 Mo. 291.] By applying the doctrine of that case to the issues presented in the present case, the Kansas City Court of Appeals will conform its ruling to the “controlling authority” provided by the Constitution for all cases in all courts of appeals to which it is applicable.

This cause is accordingly retransferred to the Kansas City Court of Appeals.

All concur.