author:
GRAVES, J.
      WOODSON, C. J.

text:
    THE STATE ex rel. WABASH RAILWAY COMPANY v. CORNELIUS ROACH, Secretary of State.
    In Banc,
    March 24, 1916.
    1. CORPORATION: Franchises: Sale. The franchises of a railway company are divisible into two classes: first, the mere right of being a body corporate; and, second, all other powers or privileges granted by the sovereign power. The first is not subject to barter and sale; the second are.
    2. -: -: What Passes by Mortgage Sale. Both by the laws and Constitution of Missouri and by the general law, all the franchise rights of a railway company except the mere . right to be a corporation, including the right to do business within this State, pass to the purchaser at a foreclosure mortgage sale, where the franchise rights have been conveyed by the mortgage.
    .3. -: Wabash Railroad: Right of Purchaser to do Business. On December 26, 1906, the Wabash Railroad Company, then possessed of the right, privilege and franchise to do a railroad business in this State, mortgaged all those rights, and they passed by foreclosure sale in 1915 to the Wabash Railway Company, a new corporation, organized under the laws of Indiana. Ever since the building of the North Missouri Railroad under the Act of 1851, there has been a State grant of a right to do intrastate business over that railroad and its after-acquired and after-constructed portions, which has successively passed, by statutory authority, to divers successors of the old railroad company, and is now vested, by reason of said foreclosure sale and purchase, in the said Wabash Railway Company.
    4. -: -: Police Power. The grant of a right to construct and own a railroad and to do a railroad business within the State is not a right that falls within the police power. The control of common carriers, such as, for instance, the fixing of maximum passenger or freight rates, is an exercise of police power? but that is a totally different question from the right to do business at all.
    5. -: -: —;-: Violation of Charter Rights. The Legislature cannot, in the exercise of assumed police powers, violate charter contracts and overthrow vested rights. The Wabash Railway Company, being the owner of a franchise right to own and operate a railroad and do a railroad business in this State, granted by the State to the North Missouri Railroad Company prior to the adoption of the Constitution of 1875, and- passed by successive mortgages and foreclosure sales to said present company, cannot by a legislative act be deprived thereof, for such right does not pertain to police' powers, but is a contract right.
    6. -:--: Permission to Do Business: Retroactive Statute. The Act of 1913, Laws 1913, p. 179, declaring that no railroad corporation, except one incorporated under the laws of this State, shall be permitted to do an intrastate business in this State, does not have a retroactive operation, and does not apply to" a foreign corporation which has succeeded to the rights of another railroad company which long prior to the enactment of said statute had been granted by the State the right to own and operate a railroad in this State and to carry on an intrastate railroad business, and the Secretary of State cannot lawfully withhold from said corporation a permit or license to do business in Missouri. That act cannot contravene existing rights lawfully granted by the State. It applies to railroads built subsequently to its enactment, and does not affect those then operating in the State.

      Held, by WOODSON, C. X, dissenting, that the Act of 1913 applies simply to intrastate business and railroads, and the Constitution (Art. 12, sec. 18) retained jurisdiction over so much of a consolidated railroad as is in this State.
    7. -: -: -: Due Process: Impairment of Contract. To hold that a foreign corporation which by purchase has acquired the' railroad of another company and its franchise right to do business in this State, acquired prior to the enactment of the Act of 1913, Laws 1913, .p. 179, cannot do a railroad business in this State, would be to take valuable property rights without due process of law, and to impair the obligation of contracts, not only of said company, but of all other foreign corporations now owning and operating railroads under franchises granted prior to its enactment.
    Mandamus.
    Writ issued.

      James L. Minnis and Nagel dt Kirby for relator.
    (1) Relator owns the portion of the Wabash Railroad situated in Missouri and is not only authorized by section 13, article 12, of the Constitution to carry persons and property as a common carrier “between any points within this State,” hut is required to do so by section 14 of the same article, which declares relator “a common carrier” and its railroad “a public highway.” Sec. 3078, R. S. 1909; Brown v. Railroad, 137 Mo. 537; Dietrich v. Murdock, 42 Mo. 284; Branch v. Jessup, 106 U. S. 483; Gamble v. Q. C. W. Co., 123 N. T. 91. (2) The Act of 1913 is void because, if given effect, it would impair the obligations of contracts and deprive relator of its property without due process of law, in violation of the Constitution of the United States. See. 1,- art. 14, of Amendments to U. S. Constitution; Daniels v. Railroad, 62 Mo. 43; Railroad v. Delamore, 114 U. S. 501; Julian v. Trust Co., 193 U. S. 93; Railroad v. Commissioners, 112 U. S. 609; Vicksburg v. Waterworks Co., 202 U. S. 453; Lawrence v. Hennessey, 165 Mo. 659; State ex rel. v. Lesueur, 145 Mo. 322; Railroad v.-Missouri, 152 U..S. 301; Pullman Car Co. v. Railroad, 115 U. S. 587; Muller v. Dows, 94 U. S. 444; Dodd v. Railroad, 108 Mo. '581. (3) Relator purchased at the foreclosure sale, with the railroad, the right to conduct thereon in the State of Missouri, the business of a common carrier, and as such to transport passengers and freight locally between points in Missouri, subject only to filing the statement and affidavit and paying the tax and fees required of foreign corporations as a condition precedent to their right to do business in this State. Julian v. Trust Co., 193 U. S. 93; New Orleans v. Delamore, 114 U. S. 501; Railroad v. Commissioners, 112 U. S. 609; Christian Union v. Yount, 101 U. S. 352; Railroad v. Allison, 1:90 U. S. 326; Burgess v. Seligman, 107 U. S. 20. (4) The Act of 1913, in prohibiting foreign railroad companies from entering this State with instrumentalities of interstate commerce and operating the same in local business, is void because violative of the “commerce” and “due process” clauses of the Constitution of the United States. See. 8, art. 1, U. S. Constitution; Sec. 1, art. 14, Amendments to U. S. Constitution; Crutcher v. Kentucky, 141 U. S. 47; Telegraph Co. v. Kansas, 216 U. S. 1; Pullman Car Co. v. Kansas, 216 U. S. 56; Ludwig v. Tel. Co., 216 U. S. 146; Harrison v. Railroad, 232 U. S. 318; Railroad v. Arkansas, 235 U. S. 350. (5) The laws of Missouri authorize the incorporation of a company similar to relator. Secs. 2990, 2991,. 2992, 3048, 3049, 3065, 3067, 3077, 3078, R. S. 1909'; State ex rel. v. Cook, 171 Mo. 362.

      John T. Barker, Attorney-General, and Shrader P. Rowell, Assistant Attorney-General, for respondent.
    (1) A foreign corporation can do business in a State other than that of its creation only upon complying with the terms and conditions prescribed by the Legislature thereof. Beale on Foreign Corporations, p. 156; Elliott on Railroads, sec. 30; Daggs v. Ins. Co., 136 Mo. 393; State ex inf. v. Oil Co., 194 Mo. 149; State ex rel. v. Yandiver, 222 Mo. 206; Koenig v.Railroad, 27 Neb. 703; Oil Co. v. Texas, 177 U. S. 28; Ins. Co. v. Daggs, 172 U. S. 566; Cable v. Ins. Co., 191 U. S. 307; Ins. Co. v. Prewett, 202 U. S. 246; Maine v. Railroad, 142 U. S. 227. (2) The application of the terms of the Act of 1913 to the relator will not operate as an impairment of the obligation of contract within the meaning of section 10, article 1, of the Federal Constitution.' Roeder v. Robertson, 202 Mo, 535; Ins. Co. v Daggs, 172 U. S. 566; Packing Co. v. Arkansas, 212 U. S. 344. The right to complain on the ground of impairment of a contract is limited to the contractual party or the person injured by such alleged impairment. Hooker v. Burr, 194 U. S. 419; Williams v. Eggleston, 170 U. S. 3.04. When a transfer of a franchise is made a new corporation is created, and the grantee takes subject to the laws then existing, and the right to complain must be based on the impairment of a contract executed prior to the passage of the law questioned. Owen v. Railroad, 83 Mo. 460; Denny v. Bennett, 128 U. S. 489; State ex rel. v. Lesueur, 145 Mo. 328; Rockwell v. Railroad, 51 Conn. 401; Railroad v. Commissioners, 112 U. S. 621; Pullman Car Co. v. Railroad, 115 U. S. 594; Lehigh Co. v. Easton, 121 U. S. 391; Baldwin’s Am. R. R. Law, sec. 12, p. 39. But even if relator were operating under a franchise acquired at the foreclosure sale, still the State would not be deprived of its right to enact legislation under its police powers to regulate the exercise of such franchise rights. State ex inf. v. Oil Co., 218 Mo. 377; State ex rel. v. Yandiver, 222 Mo. 223; Ins. Co. v. Prewett, 202 U. S. 246; Packing Co. v. Arkansas, 212 U. S. 345; Baldwin’s Am. R. R. Law, p. 213; Railroad v. Ohio, 173 U. S. 296; Railroad v. Emmons, 149 U. S. 367; Railroad v. Bristol, 155 U. S. 571. (3) The Act of 1913 does not in any manner take away, abridge or interfere with the right of relator to carry on interstate commerce and therefore does not impinge upon the provisions of section 8, article 1, of the Federal Constitution. State ex inf. v. Oil Co., 218 Mo. 376; State v. Railroad, 239 Mo. 296; Pac. Exp. Co. v. Seibert, 142 U. S. .349; Railroad v.-Arkansas, 236 U. S. 350'; 2 Elliott on Railroads, sec. 6901; Express Co. v. Minnesota, 223 U. S. 335. Although State legislation may incidentally affect interstate commerce, yet that fact alone does not render such legislation invalid. People v. Railroad, 104 111. 476 ; Quachita v. Packet Co., 121 U. S. 44; Mobile Co. v. Kimball, 102 U. S. 691; Railroad v. Illinois, 118 U. S. 564; Glue.Co. v. Glue Co., 187 U. S. 616. (4) The act in question does not violate the fourteenth amendment to the Federal Constitution,, which prohibits the taking of property without due process of law. Roeder v. Robertson, 202 Mo. 535; 8' Cyc. 1116; Ins. Co. v. New York, 119* IT. S. 119; Railroad v. Bristol, 151 IT. S. 571.
   GRAVES, J.

Original action in mandamus, against the Secretary of State. The relator, Wabash, Railway Company, is a new corporation, organized under the laws of Indiana, in October, 1915, and more-particularly under the Act of March 3, 1865, of that. State. The petition has been treated as and for the alternative writ, and a demurrer has been filed thereto, which reads:

“Now at this date comes the respondent, Cornelius Roach, Secretary of State of the State of Missouri, and after entering his appearance and waiving the issuance of an alternative writ in this case, demurs to. the petition of relator for the following reasons:
“1st. Because said petition does not state facts, sufficient to constitute a cause of action.
“2nd. Because it appears upon the face of relator’s petition that relator is not entitled to the relief' asked.
‘ ‘ 3rd. Because under the law of Missouri, as enacted by the Legislature of said State and approved April 16,1913, relator cannot operate a railroad in the State-of Missouri and transport passengers or freight from one point in the State to another point in the State unless relator is incorporated under the laws of the State-of Missouri, and upon the face of relator’s petition it appears that it is not thus incorporated.
“4th. Because under the laws of the State of Missouri relator is not entitled to a certificate to do business in the State of Missouri.
“5th. Because the laws of the State of Missouri' do not authorize the formation of a corporation of a. character similar to that of the relator.
“•Wherefore, respondent prays the court to quash the alternative writ and to deny relator the relief asked and for such further orders as to the court shall seem just and proper.”

The petition is one of great length, but counsel for relator has fairly summarized its pertinent features thus:

“The relator is a railroad corporation organized under the laws of the State of Indiana, and particularly under an act approved March 3, 1865, by which it was provided in substance and in part:
“(1) That a railroad situated in Indiana and •other States, may be sold as an entirety under foreclosure of a mortgage, at one time and place.
“ (2) That the purchasers at such a sale, by filing a certificate as therein provided, may form a new corporation and become a body corporate, ‘with power to sue and be sued, contract and be contracted with, and maintain and operate the railroad in the said certificate named, and transact all business connected with the same. ’
“(3) That ‘such corporation shall possess all the powers, rights, privileges, immunities and franchises in respect to said railroad, or the part thereof purchased as aforesaid, and all of the real and personal property appertaining to the same, which were possessed or enjoyed by the corporation that owned or held the said railroad, previous to such sale, by virtue of its charter and amendments thereto and other laws, of this State, or of any State in which any part of said railroad is situated, not inconsistent with the laws of this State.’
‘ ‘ (4) That ‘ said corporation shall have capacity to hold, enjoy and exercise, within other States, the aforesaid faculties, powers, rights, franchises and immunities, and such others as may be conferred upon it by any law of this State, or of any other State in which any portion of its railroad may be situated, or in which it may transact any part of its business.’
“Eelator was incorporated for the purpose of acquiring', owning, maintaining and operating the Wabash Eailroad, and acquiring owning and exercising the franchises pertaining to it.
“With a view to laying a foundation for our contentions, we will indicate briefly the facts stated in the petition.
“By the Acts of 1851 (Laws 1851, page 483), as amended by the Act of 1853 (Laws 1853, page 323) and the amendatory Act of 1865 (Laws 1865, pages 89, 90), the State of Missouri created the North Missouri Eailroad Company, and granted to it, its successors and assigns, the franchises, rights and privileges to locate, construct, own, maintain and operate a railroad as a common carrier for hire, and it accordingly thereafter constructed or acquired, maintained and operated as a common carrier for hire substantially the lines of the Wabash Eailroad, now existing in Missouri.
“On October 1, 1868, pursuant to express power conferred by said acts, the North Missouri Eailroad Company mortgaged its railroad, franchises, rights and privileges, which were sold, pursuant to said mortgage, to one Jessup, acting for himself and his associates, who, on January 2,1872, conveyed said railroad, franchises, rights and privileges to the St. Louis, Kansas City & Northern Eailway Company (hereinafter called the Northern Company), a Missouri railroad corporation organized for the purpose of acquiring, owning, maintaining and operating said railroad as a common carrier for hire.
“On August 14,1879, the Northern Company, pursuant to the provisions of what are now sections 3077-8, Eevised Statutes 1909, entered into a contract of consolidation with the Wabash Eailway Company, a consolidated corporation organized under the laws of the States of Illinois, Indiana and Ohio, which owned substantially the lines of the Wabash Railroad east of the Mississippi River as they now exist, and the franchises, rights and privileges to maintain and operate the same as a common carrier for hire.
“By virtue of this consolidation the Wabash lines east and west of the river were consolidated or unified, so that the two railroads became a single, continuous railroad, and the rights, privileges and franchises granted by the above States to the constituent companies were unified so that they pertained to each and every part of the continuous railroad, and the contract vested this road and the rights, privileges and franchises pertaining thereto, in the consolidated corporation, 'the Wabash, St. Louis & Pacific Railway Company. *
“On June 1,1880, the Wabash, St. Louis & Pacific Railway Company, pursuant to express power, mortgaged its railroad, rights, privileges and franchises, which were thereafter, pursuant to said mortgage, sold to a purchasing committee. The purchasing committee caused a railroad corporation to be organized under the laws of each of the States' of Missouri, Illinois, Indiana, Michigan and Ohio, and conveyed to each of said corporations the railroad, rights, privileges and franchises local to the State in which it was organized.
‘ ‘ In May, 1889, these several corporations entered into a contract of consolidation pursuant to what are now sections 3077-8, Revised Statutes 190-9, and the laws of said other States, and thereby formed The Wabash Railroad Company and vested in it the consolidated or continuous railroad and the unified rights, privileges and franchises to own, maintain and operate-the same as a common carrier for hire.
“On December 26, 1906, The Wabash Railroad Company, pursuant to express power conferred by all of said States, mortgaged its railroad, rights, privileges and franchises, and thereafter made default, and appropriate proceedings were instituted in the Federal court at St. Louis, Missouri, to foreclose the mortgage. A decree was entered on January 30, 1914, wherein it was adjudged that the mortgaged railroad, rights, privileges and franchises ‘were indivisible, of such a nature, and so situated’ that they should be sold as an entirety, and they were, pursuant to said decree, sold as an entirety to a purchasing committee, who organized relator corporation pursuant to the Indiana act hereinbefore set out. The purchasers assigned to relator their bid, and pursuant to the decree of foreclosure a special master conveyed to relator the Wabash Railroad and the rights, privileges and franchises pertaining thereto.
“Thereafter, on October 23, 1915, on the coming in of the special master’s report that the purchasing committee had assigned its bid to relator, and that he had, accordingly, conveyed the Wabash Railroad and franchises to relator, an order was entered, approving and confirming the master’s report and adjudging relator to be the assignee of the purchasing committee.
“On November 1, 1915, relator entered into the possession, use and enjoyment of the Wabash Railroad and the rights, privileges and franchises pertaining thereto, and shortly thereafter tendered to the Secretary of State, for filing in his office, a copy of its charter or certificate of incorporation duly authenticated by the Secretary of State of Indiana, together with a sworn statement under its corporate seal, setting forth the business in which it was engaged in Missouri, viz., that it owned the Wabash Railroad and the franchises pertaining thereto, was operating same as a common carrier for hire, and was exercising or would exercise all the rights and privileges vested in it by virtue of said special master’s deed and by the law under which it was incorporated; and also a statement of the proportion of the capital stock represented by its property and business transacted in Missouri, and other statements required by law, and also tendered to the Secretary of State $19,671.50, being the corporation tax and fees due from relator to the State of Missouri, and demanded that he issue to relator a permit or license to do business in Missouri. No point is made on the form of the statement, and it is agreed that the amount of money tendered is correct.
“The Secretary of State refused to file the papers and accept the money for reasons heretofore stated.
“It is also conceded that relator has kept its said tender to the Secretary of State good by insisting continuously on the filing of said documents and the acceptance of said money.”

The facts well pleaded stand confessed by the demurrer as a matter of law. Among others, the following pertinent propositions are suggested: (1) Does the Act of 1913 apply to this relator, and (2) if it does, is it violative of constitutional provisions?

I. The real foundation of respondent’s objection to granting a license to relator is evidently our Act of 1913 (Laws' 1913, p. 179'), which reads:

“That no railroad corporation, whether steam, street, electric, transfer or terminal, except one incorporated and chartered in and under the laws of the State of Missouri, shall he authorized or permitted to carry passengers or freight of any kind from one point in this State to another point in this State.” .

The foregoing is section 1 of the act. Sections 2 and 3 of the act are penal in character, and provide penalties and fines as to violators of the act.

It stands admitted by the pleadings that the predecessors in title to the railway lines involved 'here had the right or franchise (given them by this State) to do an intrastate business. The franchises of a railway company are divisible into two classes: (1) The mere right of being a body corporate and (2) all other grants of power or privileges by the sovereign-power. The first is not subject to barter and sale, but those rights and privileges falling within the second division, supra, are subject to barter and sale. In this case among those rights or franchises, was the right to carry passengers and freight from point to point in. Missouri; in other words, was the right to do an intrastate business as a railroad. This franchise or right was subject to sale or mortgage along with the physical property. This right or franchise was first granted to the “North Missouri Railroad Company, its successor or assigns,” by the State. Under a mortgage sale this right passed to Jesup and associates, who in turn assigned it to the St. Louis, Kansas City & Northern Railway Company. By law this corporation, a. Missouri product, was authorized to consolidate with other corporations of like character, and in 1879, did consolidate with railroad corporations east of the Mississippi River, having a line running to such river opposite the Missouri side of such river. This consolidation was under the name of Wabash, St. Louis and Pacific Railway Company. The franchise right to do intrastate business passed to this consolidated company, both by virtue of our laws and our Constitution. By foreclosure sales these rights passed from the Wabash, St. Louis and Pacific Railway Company to “The Wabash Railroad Company,” where they remained until in 1915, when by virtue of a mortgage foreclosure sale they passed to the relator herein.

That the franchise rights of the old North Missouri Railroad Company, passed through Jesup to the St. Louis, Kansas City & Northern Railway Company, has been twice held in this State. [Daniels v. St. Louis, Kansas City & Northern Railroad Co., 62 Mo. 43; State ex rel. v. St. Louis, Kansas City & Northern Railway Co., 3 Mo. App. l. c. 193.] It should be noted that this was a sale under a mortgage at which Jesup acquired the rights which he afterward conveyed.

Besides these express authorities in this State, it 'seems to be the general rule that at a foreclosure sale, where the franchise rights have been conveyed by the mortgage, all such franchise rights will pass to the purchaser, save and except the mere right to be a corporation. [Daniels v. Railroad, 62 Mo. 43; State ex rel. v. Railroad, 3 Mo. App. l. c. 193; Railroad v. Delamore, 114 U. S. l. c. 510; Julian v. Central Trust Co., 193 U. S. l. c. 106.]

On December 26,1906, The Wabash Railroad Company, then being possessed of the right, privileges and franchise to do an intrastate railroad business in the ■State of Missouri, mortgaged such rights, privileges and franchises, and these passed by the sale in 1915 to the relator.

In other words, since the building of the North' Missouri railroad under the Act of 1851, there has been a State grant to a right to do intrastate business ■over that particular railroad, and its after-acquired ■and constructed portions. This was a substantial property right, and has passed successively to the divers successors of the old railroad company, and is now vested in the present relator. Every step taken, by which the right or franchise has passed from one to the other corporation, has been taken by statutory authority. The corporations were all along authorized to mortgage their roadbeds and other property rights, including franchise rights. The Missouri corporation had both constitutional and statutory authority for consolidation. So that if the right to do an intrastate business is one not violative of the police power of the State, the relator here acquired a valuable existing and vested right. But more of this in another connection.

II. Whatever else may be said of the legislative grant of rights to the predecessor in title to the relator here, it is clear that by these acts the State granted the original corporation the right to do an intrastate business upon the railroad if was given authority to build and construct. Not only so, but the original act (Laws 1850-1, p. 483) further contemplated that the road to be built by the corporation then chartered by the Legislature would also do an interstate business, because in section 7 of the act, after providing for the construction of the road from ,St. Charles, Missouri, to the northern boundary line of the State, it is added: “With a view that the same may be hereafter continued northwardly into the State of Iowa, in the direction of Port Des Moines, in that State.”

This valuable right of doing an intrastate railroad business was a grant which the State could make. In other words, it was a proper subject-matter of a contract between the State and corporation. The charter of a corporation is its contract with the State. Gantt, J., in Mathews v. Railroad, 121 Mo. l. c. 310, said:

“It is wholly unnecessary to review the decisions which sustain the view adopted in the Dartmouth College case (4 Wheat. 518), that defendant’s charter is a contract between it and the State. It has been uniformly followed by this court.”

As to grants made prior to 1875, the Constitution of that year expressly recognized the validity thereof. Section 1 of article 12 reads:

“All existing charters, or grants of special or exclusive privileges, under which a bona-fide organization shall not have taken place, and business been commenced in good faith, at the adoption of this Constitution, shall thereafter have no validity.”

The converse would he the case where the corporation was organized and the contemplated charter powers exercised.

It must of course be conceded that the State cannot by grant disrobe itself of its police powers, but the .grant of a right to construct and build a railroad within her borders, and the further grant of the right to use such railroad in the transportation of passengers ■and freight, for hire, between points' and places within this State, is not the exercise of the police power of the ■State. It has been said that such a power is an indescribable one, but we find no case where the grant to construct and use (within this State) a railroad, has ever been held to be an exercise of the police power of the State. If the State by such grant, and in addition thereto undertook to divest itself of the power to regulate such corporation in the use of the railroad, to the ■detriment of the health, safety and general welfare of the public, then such attempted release of the power might be invalid.' For our Constitution, article 12, section 5, says:

“The exercise of the police power of the State shall never be abridged, or so construed as to permit ■corporations to conduct their business in such manner as to infringe the equal rights of individuals, or the general well-being of the State. ’ ’

But this is not the case here. A grant of the right to do an intrastate railroad business does not of itself contravene this section of the Constitution. [Sloan v. Railroad, 61 Mo. 24; State ex rel. Haeussler v. Greer, 78 Mo. 188; Scotland County v. Railroad, 65 Mo. l. c. 135; State ex rel. v. Laclede Gaslight Co., 102 Mo. l. c. 486.]

The control of common carriers under and by virtue of the police power is a totally different question. The general terms of the rule pertaining to control un■der the police power is well expressed in 8 Cyc. 874, thus:

“Common carriers have from the earliest time been controlled by police power; accordingly, railroad companies being allowed to charge only reasonable rates, the Legislature may make a valid enactment that certain maximum rates shall not be exceeded; likewise railroad companies may be compelled to make connections with other railroads suitable to the convenience and safety of the public, and to obey many other kindred regulations. ’ ’

But these matters of regulation under a proper exercise of the police power do not cover the right of the State to grant the privileges to construct and operate a railroad in this State and to do intrastate business. This Act of 1913 (Laws 1913, p. 179) should be given a construction which would, if possible, save it from constitutional darts. In other words, it should be given a prospective rather than a retroactive construction. It should be construed and read as to railroads thereafter built, rather than as affecting railroads already ■operating in the State. It should not be so construed as to make it contravene existing rights. We have adopted this method of construction even as to constitutional provisions. [State ex rel. Haeussler v. Greer, 78 Mo. 188, supra.] We have no doubt if a foreign corporation, without a railroad in this State, and without any previous grant. of rights by this State, should apply for admission to do business in this State, and ask to construct and operate a railroad in this State, that, under this law, it might be kept out of the State. But that is not this case.

In the Greer case, supra, Haeussler, the relator therein, was a stockholder in the German Savings Institution, and he and some other friendly stockholders tendered their votes for Haeussler, as director of such corporation, under the cumulative plan of voting provided for by section 6 of article 12 of the Constitution. The corporation was one created by legislative charter prior to the Constitution of 1875. Under this legislative charter the other system of voting was provided for, and the respondent Greer was elected over Haeussler. The action was by quo warranto to test Greer’s right to hold the office. This court, through Henry, J., said that whilst the language of the Constitution was broad enough to apply to all corporations, yet it should not be so construed as to give it retroactive action, when such would strike down existing contract or charter rights. So in the case at bar. This law should not be given an application or a construction which would strike down contract or charter rights. The relator in this case is the legal owner of certain charter rights granted by the State, i. e., the rights to own and operate a railroad in Missouri, and to do an intrastate business thereon. These rights are such as could be properly granted by the State, and do not pertain to the police powers of the State. [State ex rel. v. Laclede Gaslight Co., supra, and other cases cited.] The State cannot in the exercise of mere assumed police powers pass a law violative of charter rights. In the Laclede Gaslight Co. case (102 Mo. l. c. 486), Black, J., said:

“It is not to be doubted that there is a limit to the • power of the Legislature to tie the hands of subsequent Legislatures in respéct to the exercise of what is termed the ‘police power.’ Thus it is said: ‘No Legislature can bargain away the public health or the public morals.’ [Stone v. Mississippi, 101 U. S. 814.]
“But certainly there is a limit in this regard over which legislatures and municipalities cannot pass; they cannot, in the exercise of assumed police powers, violate charter contracts and overthrow vested rights. On this subject Judge Cooley aptly says: ‘The limit to the exercise of the police power in these eases must be this •. The regulations must have reference to the comfort, safety or welfare of society; they must not be in conflict with any of the provisions of the charter; and they must not, under pretense of regulation, take from the corporation any of the essential rights and privileges which the charter confers. In short, they must be police regulations in fact, and not amendments of the charter in curtailment of the corporate franchise.’ [Cooley, Const. Lim. (5 Ed.), 712].”

This and the other cases cited announce the proper general rules, but they may not accord fully with the present line of demarcation between the police and other powers of the State. Some of these cases discuss rates allowed by State grant. The modern rule as to grants of this character, is that they fall within- tbe category of regulatory measures in the interest of the general public welfare, and therefore are within the police power of the State. But we repeat, the grant of the right to construct and own a railroad in Missouri and to do an intrastate business thereon is not such a right as falls within the police power of the State.

We hold therefore that the Act of 1913 should not be given a construction which would make it strike down the vested rights of relator or other corporations similarly situated. We hold that it has no application to a corporation which in due course has acquired the right to own and operate a railroad in this State for the doing of intrastate business, which right to so own and operate such road has been previously granted by this State.

III. If this Act of 1913 is to be construed as contended for by the State officials it would be violative of several constitutional provisions. It would be the taking of valuable property rights without due process of law. It would be the striking down of contract rights in violation of both the State and Federal Constitutions. This relator, as to these contract rights, stands in no different situation than do the other foreign corporations now owning and operating railroads in this State. The .other foreign corporations now operating railroads in this State in intrastate business, are doing so by virtue of grants heretofore made; The only difference is (and in law that is no difference) the relator has but recently acquired these rights, whilst the others have possessed them for some years.

It is a fundamental rule that a statute should be so construed, if possible, as to make it valid under all constitutional provisions. As previously said, if a foreign corporation, possessed of no contract or charter rights from this State, should apply for license to do business in this State, and to construct and operate a railroad therein, the Act of 1913 would apply and prevent such a corporation from coming into the State. The State,-'save where it has previously granted the right, can stop any foreign corporation at the State line. The law, whether wise or otherwise, seems to have that effect, but it should not be construed to apply to corporations owning or legally acquiring railroads already in the State, where, in the acquisition of them, they also acquire fhe franchisé right to do an intrastate as well as other business in the State. We so construe this act. To otherwise construe it, would make it violative of more than one constitutional provision, both of State and Federal Constitution.

It follows that the alternative writ of mandamus should be made peremptory, and the respondent herein required to accept and receive the license fees tendered, and issue to relator a license to continue the business of its railroad in this State. It is so ordered.

All concur except Walker, J., absent, and Woodson, G. J., who dissents in opinion filed.

WOODSON, C. J.

(dissenting) — That portion of the plaintiff’s railway lying in this State was constructed and owned by a Missouri corporation, and was so owned at the date of the adoption of the Constitution of this State in 1875; and that being so, the plaintiff and those through whom it claims took that part of the road located in this State with all the rights, powers, iduties, burdens and ■ limitations granted and imposed upon it by the Constitution and laws- of this State.

At the date of the consolidation of the roads mentioned in the majority opinion, under the name of the Wabash Railway Company, section 18 of article 12 of the Constitution of 1875 was in full force and effect. It reads as follows:

“Sec. 18. Consolidation with foreign companies.— If any railroad company organized under the laws of this State shall consolidate, by sale or otherwise, with any railroad company organized under the laws of any other State, or of the United States, the same shall not thereby become a foreign corporation; but the courts of this State shall retain jurisdiction in all matters which may arise, as if said consolidation had not taken place. In no case shall any consolidation take place, except upon public notice of at least sixty days to all stockholders, in such manner as may be provided by law. ’ ’

• According to the plain letter and spirit of this constitutional provision, the company which owned that part of the road lying within this State at the date of said consolidation remained and still remains a domestic corporation, and its property, rights and duties, in so far as intrastate transportation is concerned, 're-' main subject to and are governed by the laws of this State to the same extent as if the consolidation had never taken place.

The consolidations mentioned become new companies, so is this reorganized company. [State ex rel. v. Keokuk & W. Ry. Co., 99 Mo. 30; State ex rel. v. Chicago, Burlington & K. C. Ry. Co., 89 Mo. 523.]

But that is not true regarding interstate commerce, for under both the State and Federal Constitutions, as well as under the statutes of this State authorizing the consolidation of the railroads of this State with those of other States, those parts of the consolidated road situate in Missouri are authorized and required to carry interstate commerce; and consequently the Act of 1913 (Laws 1913, p. 179) does not and could not apply to that character of commerce. [State ex inf. v. Standard Oil Co., 218 Mo. 1, l. c. 376.]

In other words, in my opinion, in construing said Act of 1913 we must view that part of plaintiff’s road located in this State from two aspects, viz.: First. That as a matter of law the Missouri company still owns the physical property and possesses all the rights, powers .and privileges it possessed, and owes all the duties to the public imposed upon it prior to the date of its consolidation with the plaintiff, in so far as intrastate shipments are concérned. Second. That said company, property, rights, powers and privileges are subjected by said statutes and constitutional provisions to the paramount duty of carrying interstate commerce, but not totally destroyed, as I understand the majority •opinion in effect holds.

If I am correct in the foregoing observations,-then the Act of 1913 is only applicable to intrastate commerce and is valid in that regard.

I am, therefore, of the opinion that the alternative writ of mandamus should be quashed.


source: Caselaw Access Project

author: WOODSON, C. J. FARIS, J.

license: Public Domain

text:
    THE STATE ex rel. W. G. LOGAN v. JAMES ELLISON et al.
    In Banc,
    March 30, 1916.
    1. JUDGMENT: Finality: Setting Aside at Subsequent Term. After a final judgment has been rendered at one term, the court, in the absence of a statute to the contrary and of a pending motion or other proper step to carry the case over to the next term, has no jurisdiction, at such next term, to modify or annul that judgment.
    2. -: -: After Motion for Rehearing Overruled. Where the Court of Appeals affirmed the judgment of the trial court, and a motion for rehearing having been timely filed was overruled on the last, day of the term and an order was made on said day giving all parties ten days in which “to file motions in cases ruled on this day,” the judgment was a finality, and the Court of Appeals had no power at the next term to sustain a motion filed at said next term to set aside the order overruling the motion for a rehearing, nor ■ did it have any power on the last day of the term to make the order extending the time to the next term in which to file a motion to set aside said order, but all its orders and judgments made at such subsequent term were null and void.
    3. -: -: Court of Appeals: Certification of Cause to Supreme Court. The Court of Appeals has no power to certify a cause to the .Supreme Court at a subsequent term after its judgment therein has become a finality. The Constitution requires such transfer to be made at “the same term” at which the judgment is rendered “and not afterwards.”
    Mandamus.
    Writ issued.

      John I. Williamson for relator.
    (1) Wlien a court lias rendered final judgment in a cause and overruled a motion for a rehearing and the term has ended with no motions pending, the jurisdiction of the court over the judgment is at an end. This rule applies to appellate courts. Padgett v. Smith, 205 Mo. 122; Gratiot v. Railroad, 116 Mo. 470; Danforth v. Lowe, 53 Mo. 218; Hill v. St. Louis, 20 Mo. 587; 1 Black on Judgments (1 Ed.), sec. 306', p. 383; 1 Freeman on Judgments (4 Ed.), sec. 96, p. 132; 3 Cyc. 474, sub-sec. b; 17 Am. & Eng. Ency. Law (2 Ed.), 816, sec. 7; Sibbald v. United States, 12 Pet. 491; Bank v. Moss, 6 How. 39‘; Bronson v. Schulten, 104 U. S. 410; Plawkins v. Railroad, 99 Fed. 322; Brown v. Aspden’s Admr., 14 How. 24. (2) If, under the circumstances in this case, respondents should have issued the mandate of their court upon the judgment of affirmance in the original case, the fact that they have attempted to transfer the case to this court is no defense to the alternative writ. State ex rel. v. Homer, 249' Mo. 58; Smith v. Mo. Pac.-Ry. Co., 143 Mo. 33; State ex rel. v. Philips, 96 Mo. 573. (3) The filing of a supplemental motion to transfer and of a motion to set aside the order overruling the motion for a rehearing, after the expiration of the time allowed by order of court, was ineffective for any purpose. Rule 20 of Kansas City Court of Appeals; State ex rel. v. Smith, 172 Mo. 446; St. Louis v. Dorr, 145 Mo. 485'.

      Morrison, Nugent & Wylder for respondents.
    (1) The order of February 28, 1914, allowing parties ten days within which to file motions retained jurisdiction in the Kansas City Court of Appeals to the ensuing March, 1914, term, and all orders and judgments thereafter entered by said court in said cause are valid and subsisting orders of said court. State ex rel. v. Philips, 916 Mo. 570'.; Childs v. Railroad, 117 Mo. 428; Gratiot v. Railroad, 116 Mo. 450; State v. Gueringer, 178 S. W. 65. (2) The motion to transfer to the Supreme Court was a proper and legal motion. Rule 35, Supreme Court; Sec. 6, Amend. 1884 to Mo. Constitution. (3) The supplementary motion and motion to set aside the order denying a rehearing was properly before the court. (4) Relator expressly and impliedly consented to the jurisdiction of the court at the March, 1914, term. Philadelphia v. Coulston, 118 Pa. St. '541; Cooney v. ©onfield, 172 111. App. 657; Hair v. Moody, 9' Ala. 399'; Cage v. Chicago, 141 111. 642; Hewetson v. Chicago, 172 111. 112; Kidd v. McMillan, 21 Ala. 325; Cowles v. Curry, 96 N. C. 331; Harrison v. Osborn, 114 Pac. (Oída.) 331; 23 Cyc. 905 -, 17 Am. & Eng. Ency. Law (2 Ed.), 838. (5) The principal case is already in this court for consideration on the merits; hence a peremptory writ of mandamus cannot issue. State ex rel. v. Hickman, 150 Mo. 629'; Johnson v. Fecht, 185 Mo. 339'; Clark v. Railroad, 179 Mo. 56; Sutton v. Cole, 155 Mo. 206.
   WOODSON, C. J.

This is an original proceeding by mandamus brought in this court to compel the respondents, the Judges of the Kansas City Court "of Appeals, to set aside an order and judgment of reversal by them rendered, at the October term, 1914, thereof, on the 5th day of said month, in a cause then pending in said court, wherein the Kansas City Coal & Material Company was appellant and W. Gr. Logan, the relator herein, was the respondent, to reinstate a former judgment of affirmance rendered therein by said court at the October term, 1913, thereof, and on the 5th day of January, 1914, and to issue the mandate of said court upon the last-mentioned judgment.

In response to the alternative writ, the respondents made their return, which in substance discloses these facts:

That on January 5,1914, during the October term, 1913, of said court, a judgment of affirmance was by said court rendered in said cause; that on January 15, Í914, during the same term of said court, the appellant filed in said canse a motion for a rehearing; that on February 28,1914, during the same term of court, said motion was overruled. On the last-named date, that being the last day of the October term, 1913, of said court, the court made a general order to the effect “that all parties' be given ten days to file motions in cases ruled on this day,” and then finally adjourned the October term, 1913, to court in course.

At the March term, 1914, of said court, and on the 2nd day of said month, the appellant in the original cause filed a motion to have the cause certified to the Supreme Court, and on the 11th of the same month the appellants, filed in said cause a supplemental motion to have the same certified to this court, and also a motion to set aside the order overruling the motion for a rehearing; that on April 15, 1914, during the same term, the motions to certify the cause to this court were overruled, and an order for a rehearing was granted.

On June 1, 1914, during the same term, the cause was argued and submitted, and on July 6, 1914, said term of court was adjourned to court in course.

On October 15, 1914, at the October term of said court, a judgment was rendered by said court reversing the judgment of the circuit court and remanding the cause, and at the same time it made an order certifying the cause to this court, of its own motion.

The order of February 28,1914, made by the court, continuing all motions and other matters pending in said court until the March term, was as follows:

“Now, the court doth order that all motions and other matters pending be continued until the next March term of this court, and the court doth further order that all parties be given ten days to file motions in cases ruled on at this date”’

The respondents base their right to set aside the judgment of affirmance in the original case, and to reverse, remand and certify said cause to this court, upon the ground stated in their return, viz.:

“That in and by the order aforesaid, entered in said court on the 28th day of February, 1914, and in and by the filing of said motion by the said company to transfer said cause to the Supreme Court, filed on the 2nd day of March, 1914, and in and by the said supplemental motion and motion to set aside the order overruling the motion for rehearing filed in said cause on the 11th day'of March, 1914, and by each of said orders and said'motions the jurisdiction of the said Kansas City Court of Appeals, and' the judges thereof, was retained in said cause in and to the said March, 1914, term of the said Kansas City Court of Appeals.”

As a further defense, respondents also make the following statement in their amended return:

“Respondents further say that they, as judges of the Kansas City Court of Appeals, and the said Kansas City Court of Appeals have no jurisdiction in this cause, because it has been certified to the Supreme Court of the State of Missouri, under the provisions of section 6 of the Amendment of 1884 to article 6 of the Constitution of the State of Missouri, as will appear from the record entry of judgment of the said Kansas City Court of .Appeals, entered on the said 5th day of October, 1914, and as will appear from the copy of the opinion of this court hereto attached and made a part hereof. ’ ’

To this return counsel for relators filed a demurrer.

I. There are but two legal propositions presented by this record for determination, and the first is, did the Court of Appeals, under the order of February 28, 1914, before mentioned, have jurisdiction October term, 1914, thereof, to set aside the judgment of affirmance rendered by it at tbe October term, 1913, when no motion of any kind was pending in said canse!

Counsel for the relator contends that the Court of Appeals had no such jurisdiction, while the respondents insist that it had.

There is an irreconcilable conflict between authorities in this State upon this question.

The cases of State ex rel. v. Philips, 96 Mo. 570, and Childs v. Railroad, 117 Mo. 414, l. c. 428, squarely hold that the filing of a motion for a rehearing in an appellate court after the adjournment of the term, under an order allowing the motion to -be filed in vacation, continues the cause so that the opinion filed does not become the opinion of the court until the motion is disposed of at the next term.

There is this distinction between those cases and the case at bar: In those cases no motion for a rehearing had been filed at the time the order was made extending the time to the next term for parties to file such motions, while in the case at bar the motion for a rehearing had been filed and overruled at the time the order of extension was made.

Under Rule 21 of this court, regarding motions for a rehearing, that fact alone would, be a finality of the case, unless the court of its own motion, during the same term, should for some good cause resting in the breast of the court set the judgment aside; but Rule 20 of the Kansas City Court of Appeals governing motions for a rehearing is not so definite and clear as is said rule of this court.

But from the view we take of this case it is not necessary for us to construe or give effect to said Rule 20; it is more becoming to leave that duty with the Court of Appeals, except perhaps in a case where it might become absolutely necessary for this court to do so, in order to properly decide the case.

The rule invoked by counsel for relator is firmly established in this State, as well as many others; and the two eases before cited seem to be the only cases in conflict with it. In fact, it is elementary that after a final judgment has been rendered in a cause, at one term of the court, in the absence of a statute to the contrary, with no motion or other proper step having been taken therein, to carry the cause over to the next term of court, the court possesses no jurisdiction to set aside, modify or annul that judgment at such succeeding or any subsequent term of the court. [Jeude v. Sims, 258 Mo. 26.]

In discussing this question this court, in the JeudeSims case, on page 39, used this language:

“In all cases, except those provided for by these statutes, a court has no authority to disturb its judgment after the lapse of the term. This has been so universally ruled, that citations would be to become superfluous.
“The defendants, therefore, are in no position to lay hold of either of these two statutes, and the original judgment was .wrongfully set aside after the lapse of the term, unless such action can be upheld upon one of the other two theories remaining to be discussed.”

The same question was under consideration in the case of State ex rel. v. Reynolds, 209 Mo. 161, and in disposing of it this court, on page 176, used this language:

“If the circuit court of St. Louis County had made in express terms an order at a subsequent term setting aside the final decree granting the injunction and ordering the receiver appointed, it would have been absolutely void and of no effect, because that court had no authority to make such order after the expiration of the term at which the decree was made. And there is nothing in the Hirzel case (State ex rel. v. Hirzel, 137 Mo. 435), which indicated anything to the contrary. [State ex rel. v. Walls, 113 Mo. 42; Appo v. People, 20 N. Y. 531.]
“In the former case the judge of the court which tried the case, after overruling the motion for a new trial, died, but before signing the bill'of exceptions. His successor in office attempted at a subsequent term of the court to set aside the judgment and grant a new trial. In that case this court held that prohibition would lie to prevent the successor in office from setting aside the judgment previously entered, for want of jurisdiction in the court to make the order. The decision was not based upon the ground that the matter involved had been adjudicated and could not on that account be again litigated, but was based squarely upon the ground that the court had no jurisdiction to make the order.
“The same proposition was involved in the Appo case, supra, and it was there contended that when the inferior court or tribunal has jurisdiction of the action or of the subject-matter, before it, any error in the exercise of that jurisdiction can neither be corrected nor prevented by a writ of prohibition. In the discussion of that proposition the Court of Appeals of New York said: ‘It is true that the most frequent occasions for the use of the writ are where a subordinate tribunal assumes to entertain some cause or proceeding over which it has no control. But the necessity for the writ, is the same where, in a matter of which such tribunal has jurisdiction, it goes beyond its legitimate powers ;• and the authorities show that the writ is equally applicable to such a case. . . . These cases prove that the writ lies to prevent the exercise of any unauthorized power, in a cause or proceeding of which the ■ subordinate tribunal has jurisdiction, no less than when the entire cause is without its jurisdiction. The broad remedial nature of this writ is shown by the brief statement of a case by Fit-zherbert. In stating the various cases in which the writ will lie, he says: " And if a man be sued in the spiritual court, and the judges there will not grant unto the defendant the copy of the libel, then he shall have a prohibition, directed unto them for a surcease,” etc., until they have delivered the copy of the libel, according to the statute made Anno 2 H., 5 [F. N. B., title Prohibition.] This shows that the writ was never governed by. any narrow technical rules, but was resorted to as a convenient mode of exercising a wholesome control over inferior tribunals. The scope of this remedy ought not, I think,.to be abridged, as it is far better to prevent the exercise of an unauthorized power than to be driven to the necessity of correcting the error after it is committed. I have no hesitation, therefore, in holding that this was a proper case for the use of the writ.’ [Appo v. People, 20 N. Y. l. c. 541-2.]
“And the same conclusions have been reached by this court in the following cases: Morris v. Lenox, 8 Mo. 252; Railroad v. Wear, 135 Mo. l. c. 256; State ex rel. v. Scarritt, 128 Mo. l. c. 338-9; High on Ex. Legal Rem., sec. 789; Spelling on Ex. Legal Rem., sec. 1741.”

The following authorities are also, directly in point: Padgett v. Smith, 205 Mo. 122; Gratiot v. Mo. Pac. Ry. Co., 116 Mo. l. c. 470 (concurring opinion of Barclay and Brace, JJ.); Danforth v. Lowe, 53 Mo. l. c. 218; Hill v. St. Louis, 20 Mo. l. c. 587; 1 Black on Judgments (1 Ed.), sec. 306, p. 383; 1 Freeman on Judgments (4 Ed.), sec. 96, pp. 132-3; 3 Cyc. 474, sub-sec. b.; 17 Am. & Eng. Ency. Law (2 Ed.), 816; Sibbald v. United States, 12 Pet. 491; Bank v. Moss, 6 How. 39; Bronson v. Schulten, 104 U. S. 410; Hawkins v. C. C. C. & St. L. Ry. Co., 99 Fed. 322; Brown v. Aspden’s Admrs., 14 How. 25; Priddy v. Hayes, 204 Mo. 358; Wilson v. Darrow, 223 Mo. 520.

We have been cited to no statute or rule of common law or chancery which authorized the Court of Appeals to make the order of February 28, 1914, extending the time to the next term of court in which to-file motions in the causes mentioned therein. That authority existed, if at all, upon the rule announced in the cases of State ex rel. v. Philips, supra, and Childs v. Railroad, supra.

Those cases were not well considered, nor was any authority cited in support of the rule there announced. They stand alone in this State, and have no foreign support that I know of; they are against the consensus of authority in this State and elsewhere, and should, in my opinion, be overruled, which is accordingly done.

It therefore follows that the order of the Court of Appeals made on February 28, 1914, extending the time to the next term of the court for appellants in the original case in which to file the motion mentioned was and is null and void, and all orders and judgments of the court made therein at said succeeding term are likewise null and void, and of no force or effect whatever.

II. It is next insisted by counsel for respondents that notwithstanding the fact that the order of February 28,1914, may have been unauthorized by law, and, therefore, null and void, yet the Court of Appeals, under section 6 of the Amendment of 1884 of article 6 of the Constitution, had the authority to certify the original cause to this court for any of the reasons stated therein, and the cause having been certified here by it, the peremptory writ of mandamus should be denied, and the cause decided by this court upon its merits.

While that section of the Constitution authorizes the various courts of appeals of the State to certify cases to this court for any of the grounds stated therein, yet in express terms it further provides that said Court of Appeals must, of its own motion, make such transfers to this court at ‘ ‘ the same term ’ ’■ at which the judgment is rendered “and not afterward.”

The return discloses the fact that the certification of the original cause to this court was made at the second or third term of the court subsequent to the one at which the original judgment was rendered.

Upon that state of facts, under the plain mandate of said constitutional provision, the order of the court certifying the original cause to this court was not authorized, and is therefore cor am non judice.

It is true this court may in the exercise of. its constitutional control of all other courts of the State', require the Court of Appeals to certify a cause to this court after the expiration of the term at which the judgement therein was rendered, but that fact does not signify that said court may so do of its own motion. [State ex rel. v. Philips, 96 Mo. l. c. 575; State ex rel. v. Patterson, 207 Mo. 129.]

For the reasons stated we are of the opinion that the peremptory.writ of mandamus should issue; and it is so ordered.

Bevelle, J., concurs; Faris, J., concurs in a separate opinion in which Graves, Walker and Blair, J.J., concur; Bond, J., dissents.

FARIS, J.

(concurring). — I concur in the result of the opinion of the learned Chief Justice, but I do not think that any necessity exists in this, case to overrule the cases of State ex rel. v. Philips, 96 Mo. 570, and Childs v. Railroad, 117 Mo. 414.

I am of opinion that sufficient differences are apparent between the facts of those cases and the facts of the case at bar, to clearly distinguish those cases from the instant one. It may be that both of the cases marked for overruling in the Chief Justice's opinion were incorrectly decided — touching that I do not think we need here to give an opinion — therefore I do not think we need here trouble ourselves with their correctness or incorrectness. In the case on which the one at bar is bottomed a motion for rehearing had been filed and overruled, and appellant therein had come absolutely to the end of all legal steps for a review.. In the Philips case no motion for rehearing had ever, been filed; in the Childs case the ruling appears merely arguendo. In fairness, since time to file a motion for a rehearing in the Philips case — absent the order — was lacking, the Kansas City Court of Appeals gave by its general order time in the next term to file such motiop for a rehearing, and upon mandamus brought here we approved their action fully. Since the matter strikes-me largely as one of practice, touching which we possess inherent power to make rules, and since we have a rule — as also has the Kansas City Court of Appeals-—allowing ten days after judgment to file a motion for rehearing, and since no statute expressly forbids, it would be to curtail both our convenience and the expediting of business and to run the risk of doing great injustice, if we thus cut off our right to retain by express order jurisdiction in a case so that time (other-wise lacking) might be had to file therein a motion for rehearing. In short, our convenience and the hurry of events might necessitate our deciding a case on the last' day of any given term. If we have no right to make an order to the end that the losing party may have the same opportunity to file a motion for rehearing as we give by our rules to others, it may be questionable whether the loser in such ease has been accorded due process of law. [State v. Guerringer, 265 Mo. 408.] Certainly this is so, if the privilege given by a rule of an appellate -court to file a motion for a rehearing and have it considered is a right given by law at all.

Under the facts at bar as they are so lucidly set out by the learned Chief Justice, so patent a difference appears to me that I vote not to overrule the cases mentioned, but to distinguish them upon their facts from this one; and so voting I concur fully otherwise.

Graves, Walker and Blair, JJ., concur in these views.


author: WALKER, J.

text:
    R. G. RAMSEY v. PETER H. HUCK, Judge of Circuit Court, and GEORGE W. COVINGTON.
    In Banc,
    March 30, 1916.
    1. PROHIBITION: Circuit Courts. The Supreme Court is given authority by the Constitution to prohibit, by its writ of prohibition, circuit courts and other inferior tribunals from exercising jurisdiction which they do not legally have.
    2. -: Justice of Peace: Title to Office. The Constitution gives the Supreme Court exclusive jurisdiction in cases involving title to any office under this State, and the office of a justice of the peace is such an office.
    3. -: Jurisdiction of Appeal. Jurisdiction to hear and determine upon appeal the original case out of which the application for a writ of prohibition arose, is not a prerequisite to the right of the. Supreme Court to issue the writ.
    4. JUSTICE OF PEACE: Election Contest: Jurisdiction. The county court, except in cities of three hundred thousand inhabitants, has jurisdiction to hear and determine a contested election for the office of justice of the peace; but such court is an inferior tribunal, and the grounds of its jurisdiction must appear affirmatively upon the face of the record.
    5. --: Notice of Election Contest. The service of notice of contest for the office of justice of the peace, fifteen days before the term of the county court at which the election is to be contested, is, by the statute, made essential to the validity of the proceeding; and where only twelve days’ notice is given to contes tee the court has no jurisdiction, and the proceeding must be dismissed.
    6. -: -: Amendment. Notice of contest of less than fifteen days cannot be made sufficient by an amendment fixing the time of hearing at fifteen days from the date of service. It is only where jurisdiction has been obtained by proper notice, in the manner pointed out by the statute, that an amendment may be made to a notice of contest.
    7. -: -: Appeal. If the county court had no jurisdiction over the contest for the office of justice of the peace, because notice of contest was not timely served, the circuit court acquired none by reason of an appeal.
    Prohibition.

      Writ issued.

      Edward A. Rosier, B. H. Boyer and Clyde Morsey for relator.

      Benjamin H. Marbury for respondents.
   WALKER, J.

Prohibition. Relator invokes this writ to prevent the circuit court of St. Francois County from entertaining jurisdiction in a proceeding’ to contest the right to the office of justice of the peace.

At the general election held in November, 1914, Ramsey, the relator, and Covington, one of the respondents, were opposing candidates for the office of justice of the peace in one of the townships of said county. Ramsey at said election received the greater number of votes, a commission was delivered to him and he was inducted into office.

On November 25,1914, Covington notified Ramsey, by delivering to him a copy of the petition in the proceeding, that “at the next term of the county court of St. Francois County, to-wit, on Monday, December 7, 1914, he would contest Ramsey’s right to said office.” On said day Ramsey, appearing to plead to the jurisdiction of the court, filed a motion therein which alleged, among other things, that the return of the sheriff of the service of notice of contest showed upon its face that it was served on the 25th day of November, 1914, and that he was in fact served,on said day, or only twelve days before the next term of said county court, whereas section 5924, Revised Statutes 1909, provides that in all such matters a notice shall be served upon the contestee fifteen days before the term of court at which such election is to be contested and hence said county court was without authority to hear said cause.

Covington thereupon asked leave to amend the notice which constituted the petition by striking out these words: “On Monday, December 7, 1914,” and by inserting in lien thereof the following: “And on the first day of said term which shall be held fifteen days or more after November 25,1914, or the day of the service of this notice of contest.” The court refused to permit this amendment to be made and sustained Ramsey’s plea to the jurisdiction and dismissed the proceeding. Covington thereupon applied for and was granted an appeal to the circuit court. Upon the perfecting of this appeal Ramsey appeared therein and challenged the jurisdiction of the circuit court to hear said cause on the ground that the county court had no authority to hear same and that the circuit court had acquired none by reason of the appeal. This motion was by the circuit court overruled, whereupon Ramsey applied for the writ herein.

It has been questioxled whether this is the proper forum in which to invoke this writ in a case of this character. The Constitution (Sec. 8, art. 6, Amdt. 1884) gives express power to this court to issue the writ to regulate the actions of the courts of appeals, but such power is not expressly given in regard to other inferior tribunals, the provision in regard thereto being as follows: " The Supreme Court shall have a general superintending control over all inferior courts. It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari and other original remedial writs, and to hear and determine the same. ’ ’ [Sec. 3, art. 6, Constitution.] However, the general words “and other original remedial writs” were held in Thomas v. Mead, 36 Mo. 232, to authorize the issuance of the writ of prohibition against a circuit court in a case involving title to the office of clerk of the Supreme Court. This ruling has been followed in a number of subsequent cases in which the court has supervised circuit courts and other inferior tribunals, the last expression on the subject being found in State ex rel. v. Williams, 221 Mo. l. c. 256.

Whatever individual opinion may, therefore, be entertained as to the correctness of the construction of the rule in regard to general words following particular words, as announced in Thomas v. Mead, supra, must be subordinated to the conclusion -reached in that ease and subsequent cases, and discussion in regard thereto is foreclosed and the right of the court to issue the writ in the exercise of its supervisory control over any inferior tribunal is completely established.

The proceeding'sought to be prohibited involves title to the office of justice of the peace. The Constitution provides that the Supreme Court shall have exclusive jurisdiction “in cases involving . . . title to any office under this State.’’ [Sec. 12, art. 6, Constitution; Sec. 5, art. 6, Arndt. 1884.] This provision means any office held under the authority of the laws of this State, and has been held to apply to give this court jurisdiction in contests involving title to the following offices: "clerk of the circuit court (State ex rel. Blakemore v. Rombauer, 101 Mo. l. c. 501); members of a school board (State ex rel. Macklin v. Rombauer, 104 Mo. 619; State ex rel. Rogers v. Rombauer, 105 Mo. 103; State ex rel. Walker v. Bus, 135 Mo. 325); school directors (State ex inf. Sutton v. Fasse, 189 Mo. 532; State ex rel. Frisby v. Stone, 152 Mo. l. c. 204; State ex rel. Frisby v. Hill, 152 Mo. 234); and county collector (Sanders v. Lacks, 142 Mo. 255); and certain township officers (Macrae v. Coles, 183 S. W. 578).

Under these rulings the conclusion is authorized that the office of justice of the peace is one held under the authority of the laws of this State, and hence this court has jurisdiction.

The court’s power in the premises, as defined in the cases cited, is based primarily upon its jurisdiction to hear and determine upon appeal the original cases out of which the application for the writs arose; such appellate jurisdiction, however, is not a prerequisite to the right of this court to issue the'writ herein. [State ex rel. v. Eby, 170 Mo. l. c. 516.]

We come now to a consideration of the jurisdiction of the county court to hear and determine the contest proceedings upon which the application for the writ herein is based. The Constitution provides in this regard that “the General Assembly shall, by general law, designate the court or judge by whom the several classes of election contests shall be tried,” etc. [Sec. 9, art. 8, Constitution.] Under this provision section 5294, Revised Statutes 1909, was enacted, giving county courts; except in cities now or hereafter attaining three hundred thousand inhabitants, jurisdiction in contests of township offices; and section 7372, Revised Statutes 1909, which provides that in contested elections for justice of the peace the county courts shall decide same. Under these sections county courts are given power to hear and determine contested elections for the office of justice of the peace. [Taaffe v. Ryan, 25 Mo. App. 563.]

Such courts being, therefore, clothed with general power herein, it remains to be determined whether the statute prescribing the procedure relative hereto has been complied with — because to the statute alone, upon which contests of elections are solely based, we must look to determine the regularity of the court’s proceeding. [State ex rel. v. Hough, 193 Mo. l. c. 645.] Furthermore, the fact must be borne in mind that county courts are inferior tribunals, not proceeding according to the course of the common law, but confined to the authority given them by statute, and that the grounds of their jurisdiction must appear affirmatively on the face of their records. [Ex Parte O’Brien, 127 Mo. 477; Strouse v. Drennan, 41 Mo. 289; State ex rel. Sanks v. Johnson, 138 Mo. App. 306.]

It is contended here that the notice of the contest of election was insufficient. The statute requires, among other things, that “the notice shall be served fifteen days before the term óf court at which the election shall be contested,” etc. The object of the statute in requiring the notice has two distinct purposes. One is to bring the party into court and the other to set forth and advise the court of the grounds of the contest. The notice, therefore, stands in lieu of and performs the functions of a writ and a petition in an ordinary suit. [State ex rel. Wells v. Hough, 193 Mo. l. c. 642; Hale v. Stimson, 198 Mo. l. c. 145.] Possessed of this importance, the service of the notice as required by law becomes jurisdictional and is absolutely essential to the validity of the proceeding. [State ex rel. Sale v. McElhinney, 199 Mo. l. c. 78.] The rule is well established- and uniform in its operation that where the jurisdiction of a court is made to depend upon the time either of the giving of notice or of taking an appeal, the requirement is peremptory. In Castello v. Court, 28 Mo. 259, we held that the notice required in a contested election case must be given within the time pescribed by the statute, and in Wilson v. Lucas, 43 Mo. 290, which was a contest of an election to the office of circuit judge, the statute required a certain number of days’ notice of the -contest and the petition was dismissed because the requirement was not observed. In Bowen v. Hixon, 45 Mo. 340, involving a contest for the office of county clerk, the notice of the contest required by the statute was not complied with and the proceedings were held to be invalid. In Adcock v. Lecompt, 66 Mo. 40, a contest for the office of county collector, the proceeding was dismissed on account of a defective notice. In State ex rel. v. Ross, 245 Mo. l. c. 46, it was held that notice of the contest within the time designated in the statute was one of the rights of the contestee and a failure to give same forfeited the right to the contest.

In the instant case the notice of contest was served on the contestee on the 25th day of November, 1914, in which he was notified that at the next term of the county court of St. Francois County, to he begun on Monday, the 7th day of December, 1914, a proceeding would he begun and prosecuted in said court by contestant to determine the contestee’s right to the office of justice of the peace. From these facts it is evident that the contestee was only given twelve days notice of said contest, which was not sufficient under the statute, and it was so held by the county court. It is contended, however, that this defect was cured by the amendment proposed to he made after the filing of the contestee’s plea to the jurisdiction, which attempted to fix the time of hearing of the proceeding at fifteen days from the date of the service of the notice on the contestee. This proposed amendment was not permitted by the county court. It is only where jurisdiction has been obtained by proper notice in the manner pointed out by the statute that an amendment may be made to a notice of contest. It was so held in Nash v. Craig, 134 Mo. 347, which ruling was approved in State ex rel. v. Hough, 193 Mo. l. c. 650. The correctness of this ruling is evident from the nature of the proceeding. The notice constitutes the petition in the case. Jurisdiction is acquired by properly serving it upon'the contestee. Unless it has been so served the court is without authority to make any order in the premises except to dismiss the proceeding and upon a proper application to grant the contestant an appeal. The county court being without jurisdiction, the circuit court acquired none by reason of the appeal (Tie & Timber Co. v. Drainage Co., 226 Mo. l. c. 444; Sidwell v. Jett, 213 Mo. 601), and it should have so ruled by sustaining the contestee’s motion to dismiss.

It' is therefore ordered that the preliminary writ of prohibition issued be made absolute and that the circuit court refrain from further exercise of jurisdiction herein.

All concur.


author: GRAVES, P. J. GRAVES, P. J.

text:
    JOHN McMENAMY INVESTMENT & REAL ESTATE COMPANY v. STILLWELL CATERING COMPANY, Appellant.
    Division One,
    March 30, 1916.
    JURISDICTION: Non-Resident Corporation: Service. For the reasons stated in the minority opinion of the St. Louis Court of Appeals, 175! Mo. App. 1. c. 679 et seq., in this case, the judgment is reversed, and the cause remanded, in order to give plaintiff opportunity to obtain valid service on defendant corporation.
    Appeal from St. Louis City Circuit Court. — Mon. J. Mugo 'Grimm, Judge.
    Reversed.

      George W. Lublce and George W. Lubhe, Jr., for appellant.

      F. A. & L. A. Wind and F..X. Geraghty for respondent.
   GRAVES, P. J.

This cause reached-this court by a certification, under the Constitution, made by the St. Louis Court of Appeals. Two opinions were filed in that court. The majority opinion affirmed the judgment of the circuit court. The minority opinion held that the judgment should be reversed, and the writer of the minority opinion ashed for the certification of the cause here on the ground that the majority opinion conflicted with Priest v. Capitain, 236 Mo. 446, and other cases in this court. The case is fully reported in 175 Mo. App. 668. All sides of the question involved are thoroughly threshed out in these two opinions.

The question of the jurisdiction of the circuit, court, and that is the vital question, is discussed from all angles in these two opinions. The dissenting opinion in my judgment follows the views of this court upon the question involved. The record facts are so thoroughly stated, and the case law so thoroughly discussed by Judge Allen in his dissenting opinion, that we feel that it would be a useless expenditure of vital force to try to add to them. For the reasons expressed by Judge .Allen in his dissenting opinion (Real Estate Co. v. Catering Co., 175 Mo. App. l. c. 679 et seq.), the judgment of the circuit court is reversed.

All concur.

ON MOTION TO MODIFY JUDGMENT.

GRAVES, P. J.

We are asked to so modify our judgment in this case that the cause may be remanded. ' It is suggested that perhaps proper service of process can be obtained. ’Our judgment was a simple reversal of the judgment nisi. Under the views we have expressed as to the law, we do not know whether plaintiff can get a valid service of process or not, but we see no objection to a remanding of the cause to give the plaintiff such an .opportunity. So, whilst adhering to all the views of the opinion, we will sustain the motion to "modify our judgment, so that such judgment shall be to the effect that the judgment nisi is reversed and the cause remanded to the circuit court to be proceeded with in accordance with the law as declared in our opinion. Motion to modify judgment . sustained and judgment modified as herein indicated.

All concur.