source: Caselaw Access Project

author: FARIS, J. WOODSON, J.

license: Public Domain

text:
    THE STATE ex rel. MARY IBA v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    April 2, 1914.
    1. BILL OF EXCEPTIONS: Judge’s Reasons for Overruling Motion for New Trial: Agreement to be Supplied in Writing: Dictated to Stenographer. If respondent’s counsel agreed that the remarks of the trial judge, made at the time he overruled the motion for a new trial, might be supplied by him in writing and made a part of the bill of exceptions, the agreement was complied with by an oral dictation to the court stenographer of the remarks made and an incorporation of a transcript of them in the bill and the approval of the bill by the judge. It would be too narrow and technical to hold that such method was not a reproduction in writing of the remarks made.
    2. NEW TRIAL: Preponderance of Evidence: Mind of Judge Affected by Affidavits Untimely Filed. Where when the case was ended the trial judge felt that the preponderance of the evidence was with the defendants but not so greatly in their favor as to warrant him in setting aside the verdict, the fact that when affidavits tending strongly to show that the testimony of the principal witness was false were filed fifty-seven days after-wards his mind changed to the view that he ought to grant a new trial, and the fact that after said witness was indicted and tried in the criminal court and acquitted of the charge of perjury his mind again changed back to the view that the verdict ■ ought not to be set aside, is no ground for the appellate court to compel the granting of a motion for a new trial. In spite of the two mental changes in the judge’s mind after the affidavits were untimely filed, the fact remains that before they were filed his conviction was that the motion should be overruled; and as they were untimely filed he was not warranted in con- ■ sidering them or the acquittal of the witness.
    3. -: -: Converse of Rule. Great latitude is allowed the trial court by the statute (Sec. 2023, R. S. 1909) in granting one new trial on the ground that the weight of the evidence is against the verdict. The action of the court in granting one new trial on that ground will not be disturbed on appeal by the Supreme Court, unless it appear from all the evidence in the case that a verdict in favor of the party to whom the new trial was granted could not have been allowed to stand. But the statute has no application in a converse case; if the trial judge refuse to grant a hew trial on the ground that the weight of the evidence is against the verdict, it is incumbent upon the appellant to establish to the satisfaction of the appellate court, in order to rebut the presumption of right action, that error occurred upon the trial so prejudicial as to require a reversal; otherwise a new trial will not be granted.
    4. --: Untimely Filed Motion: Consideration. Neither a motion for a new trial nor an amended or supplemental motion for a new trial may be filed after the expiration of the four days fixed by the statute; nor may a motion timely filed' be amended in matter of substance after such time has elapsed. Nor is the trial court warranted in considering affidavits, in support of “suggestions” in support of the motion for a new trial, filed after the time for filing the motion had expired, which in effect amount to newly discovered evidence, in that they tend to show the testimony of . a main witness to be perjured.
    5. --: Error of Law by Court of Appeals: Certiorari. Upon a question of law arising upon undisputed facts a court of appeals is required to follow the last previous ruling of the Supreme Court; if it do not, a judgment rendered by it will be quashed upon certiorari.

      Held, by WOODSON, J., dissenting, with whom BOND, J., concurs, that the assumption of jurisdiction by the Supreme Court to review errors of courts of appeals as to matters of law is a usurpation of authority, not authorized by section 6 of the amendment to the Constitution of 1884, whose practical effect will be. to largely destroy the opinions of those courts and overburden the Supreme Court.

      Certiorari.

    Judgment quashed and cause remanded.

      John 8. Boyer and Charles C. Crow for relator.
    (1) The Supreme Court has superintending control over the Kansas City Court of Appeals where it has acted beyond or in excess of its power and jurisdiction. State ex rel. v. Broaddus, 245 Mo. 123. (2) An appellate court in this State is limited to the errors assigned in the motion for a new trial filed within the time allowed by law, and an attempt of an appellate court to investigate a question suggested otherwise is beyond its power and jurisdiction. R. S. 1909, sec. 2081; King v. Gilson, 206 Mo. 280; Rodan v. Transit Co., 207 Mo. 406; Winn v. Grier, 217 Mo. 461; St. Louis v. Lawton, 189 Mo. 474; Williams v. Railroad, 156 Mo. App. 677; Fussellman v. Railroad, 139 Mo. App. 201; Brenton v. Thomas, 138 Mo. App. 73; Stauffer v. Railroad, 243 Mo. 323; Ewart v. Peniston, 233 Mo. 695; Sterrett v. Railroad, 225 Mo. Ill; Street v. School District, 221 Mo. 671; Lynch v. Railroad, 208 Mo. 42; Bank v. Porter, 148 Mo. 183. (3) There is no power or jurisdiction in the appellate court to review the action of the trial court in overruling a motion or supplemental motion for new trial filed out of time — the reason being that if the appellate court could review the action of the court on a motion or supplemental motion filed out of time the statute requiring the filing of a motion for new trial as a basis for conferring jurisdiction and power on the appellate court to review, would he repealed and the appellate court would then review all alleged errors committed at the trial. R. S. 1909, secs. 2081, 2038; Iiamman v. Coal Co., 156 Mo. 232; Green v. Walker, 99 Mo. 68. (4) The Kansas City Court of Appeals exceeded its power and jurisdiction in considering the question of the state of mind of the trial judge in overruling motion for new trial and exceeded its jurisdiction in ruling that there is no good reason why the appellate court should not remand a cause for what it considered error of the trial court in overruling a supplemental motion for new trial as well as reversing a cause where the trial court had sustained a motion for new trial. Rausch v. Michel, 192 Mo. 303; Mead v. Spaulding, 94 Mo. 43; Mound City v. Shooting I. Co., 74 Mo. App. 661; Insurance Co. v. McDearmon, 133 Mo. App. 673; Creen v. Railroad, 211 Mo. 18; Chlanda v. Railroad, 213 Mo. 244. (5) This court will control by certiorari any judgment of the Kansas City Court of Appeals entered, that is in direct conflict with a controlling decision of the Supreme Court and in this case the decision is in conflict with every decision of the Supreme Court, the Kansas City Court of Appeals and the St. Louis Court of Appeals that has been handed down in the history of our State. See cases cited above. And relator asks this court to quash the judgment of the Kansas City Court of Appeals in refusing said cause and that it be directed to restore the said judgment of the circuit court of Buchanan- county. Curtis v. Sexton, 252 Mo. 221.

      O. M. Spencer and Culver <& Phillip for respondents.
    This court has never gone further than to hold, as it did in State ex rel. v. Broaddus, 238 Mo. 189, reaffirmed in Curtis v. Sexton, 252 Mo. 221, that it will control the decision of the Court of Appeals only when the decision of said last named court is in conflict with the prior decision of this court in the same case on the same record. This court has never held that it would control the decision of the Court of Appeals because this court might be of the opinion that the decision of the Court of Appeals in any given case was in conflict with a prior decision of this court in some other case. On the contrary, this court has held in a number of cases that it would not interfere with the decision of the Court of Appeals in such circumstances. State ex rel. v. Smith, 173 Mo. 398; Railroad v. Smith, 154 Mo. 300. This court has expressly ruled that it is for the Court of Appeals to say whether its decision is in conflict with any prior decision of the Supreme Court. State ex rel. v. Smith, 107 Mo. 527; State ex rel. v. Rombauer, 140 Mo. 124. If this court is now to extend its doctrine and rule that it will quash the judgment of a Court of Appeals in any case in which this court thinks that judgment conflicts with the previous decisions of this court, it must overrule the numerous previous decisions of this court, and establish a new judicial system in this State. The Courts of Appeals-will no longer be courts of last resort in those cases of which the Constitution and law give them exclusive jurisdiction. Of course, we can conceive of a case where the Court of Appeals might itself decide that its judgment was in conflict with a prior decision of this court which it refused to follow, because it thought it was wrong. In fact, there are cases of record, presenting just such a situation. Bank v. Weston, 144 Mo. 407; Shaffer v. Railroad, 144 Mo. 170. We have no doubt that in such circumstances this court would have power to compel the Court of Appeals to make its judgment conform to the previous decision of this court. Unquestionably the Constitution requires the Courts of Appeal to follow the last previous decision of this court; but unquestionably the law also confers upon the Court of Appeals the power to decide whether their judgment is in accordance with the last utter anee of this court. And so' long as the Courts of Ap: peals construe their judgment to be in harmony with the controlling decision of this court this court cannot review or annul their judgments.
   FARIS, J.

— This is an original proceeding by certiorari brought in this court against the respondents, as judges of the Kansas City Court’ of Appeals, to quash a judgment rendered by them in that court in a case wherein Mary Iba was respondent, and the Chicago, Burlington &' Quincy Railroad Company and another, were appellants.

Respondents, as judges of said Court of Appeals, on the 5th day of May, 1913, rendered an opinion in the case of Iba v. Chicago, Burlington & Quincy Railroad Company et al. (hereinafter the case will be referred to as the “Iba case,” and the'parties therein as the “plaintiff” and the “defendants,” respectively) in which the judgment of the trial court was reversed and the case remanded for a new trial. This opinion is officially reported in 172 Mo. App. 141, where the facts of the case, so far as the same may be pertinent and so far as the same may not be in our opinion set down, may be read more at length.

Suffice it here to say, that plaintiff in the Iba case, one Mary Iba, on the 14th day of December, 1909, filed in the circuit court of Buchanan county an action for damages against the defendant railroad and another for the negligent killing of said plaintiff’s husband, one Frederick B. Iba, which it was averred in said petition occurred -on the 13th day of Octobér, 1909, on account of the carelessness and negligence of defendant railroad and one Thomas Phelan, who was the conductor of the passenger train on which, or by means of which,- the casualties producing the death of decedent occurred. Upon the trial of the Iba case the plaintiff therein prevailed and was by- the verdict of a jury awarded the sum of five thousand dollars as damages. The verdict of the jury in the Iba case was rendered on the 15th day of February, 1911.

Three days after the rendition by the jury of its verdict in the Iba ease, and on the 18th day of February, 1911, defendants therein filed their motion for a new trial, which motion, since -it cuts some considerable figure in this case (omitting caption and other formal parts), we append as follows:

“Come now the defendants in the above entitled canse, and move the court to set aside the finding, judgment and verdict herein, and grant the defendants and each of them, a new trial of said cause, and in support of said motion say:
“1. The court erred in refusing the defendant railroad company’s instruction in the nature of a demurrer asked by said defendant at the close of plaintiff’s testimony.
“2. The court erred in refusing defendant Phelan’s instruction in the nature of a demurrer, asked by said defendant at the close of plaintiff’s testimony.
“3. The court erred in refusing* the instruction to find for defendant railroad company, asked by said defendant railroad company, at the close of all the testimony in the case.
“4. The court erred in refusing* defendant Phelan’s instruction to find for said defendant, asked by s'aid defendant at the close of all the testimony in the case.
“5. The court erred in giving instructions 1, 2, 3, 4, 5, 6 and 7, as asked by plaintiff, and each of them.
“6. The court erred in admitting improper and illegal testimony offered on the part of the plaintiff.
“7. The court erred in excluding proper and legal testimony offered on the part of the defendants and each of them.
“8. The court erred in overruling and refusing to sustain defendant Railroad Company’s petition for removal of the cause to the U. S. Circuit Court, for the Western District of Missouri, St. Joseph Division, which was filed on the first day that this cause was returnable to this court.
“9. The court erred in overruling and refusing to sustain the petition for the removal of this cause to the IT. S. Circuit Court, for the Western District of Missouri, St. Joseph Division, filed by the defendant Railroad Company, at the close óf all the testimony in the cause.
“10. The verdict is against the evidence.
‘‘11. The verdict is against the weight of the evidence.
“12. The verdict is excessive.
“13. The verdict is the result of passion, prejudice and Mas on the part of the jury.”

Following the filing of this motion, on which no action at the time was taken by the trial court, and forty-seven days thereafter, to be exact on the 6th day of April, 1911, defendants in the Iba case, during the same term of court at which the verdict aforesaid was rendered, appeared and filed therein a paper duly verified by counsel for defendants as being correct, and which was called by defendants “a suggestion to the court.” This document is of some importance in this case and in order that a full understanding of the facts may be had we append it in full, caption and verification omitted:

“Come now the defendants in the above entitled cause, and by way of suggestion to the court as to the granting of a new trial in this cause and setting aside the verdict rendered herein, and as supplementary to and in support of their motion therefor, heretofore filed herein, state that on the trial of this cause during the present term of this court plaintiff introduced two witnesses, to-wit: Claude Atterbury and Albert Rise, who claimed in their testimony to have been present at the town of Easton, in the county of Buchanan, State of Missouri, on the 13th day of October, 1910, when Frederick Iba, the deceased husband of the plaintiff, was struck and killed by a passenger train of the defendant railroad company, and that plaintiff introduced no other witnesses who knew or claimed to know the facts in relation to the killing of said deceased, or claimed to have been present at the time; that the said Albert Rise on said trial was duly sworn and testified that he was present at said town of Easton on said day, and was standing on the platform of the depot at said place, and that he saw said deceased hoard the passenger train of said defendant railroad company, and that he saw the defendant Phelan catch hold of said deceased, and pnll and push him, thereby causing the said deceased to strike a truck standing on said depot platform, and fall from said train; that in truth and fact the said witness, Albert Bise, was not present at said time and place and did not see the said defendant board said train, and did not see said defendant Phelan catch hold of said deceased, and pull or push him, and knew nothing of his own knowledge or as an eye witness of what occurred at said depot, at the time said deceased was struck and injured; but on the contrary, these defendants say and allege that said Albert Bise on the day and at the time said Frederick Iba, deceased, was struck and injured and died, was about three miles distant from .said town of Easton, engaged in picking and packing apples, in company with a number of other persons, and that' said Bise at the trial of said cause, in the testimony given by him, knowingly and wilfully testified falsely to the facts hereinbefore set out. That in support hereof these defendants file herewith the affidavits of Bert Buoff, Chris Buoff, Daisy Buoff, Lillie Wright, George Wright, Frank Willis, John Wogan and Allen Estes.
“That the defendants had no knowledge or information as to the falsity of the testimony of said Bise, until after the lapse of more than four days from the time the verdict of the jury was returned herein.”

To the above paper, as stated therein, there were attached and filed with it, eight certain affidavits of the persons in such suggestion named, tending to show the facts urged in the suggestion, that is to say, that Albert Bise, the witness named in the suggestion, was not in fact present at the time of the killing of said Frederick Iba, but that he was more than three miles away and that he never saw the accident, or any part thereof. On April 5, 1911, the day preceding the filing of this suggestion and the affidavits accompanying the same, Albert Eise, the witness named therein, was indicted by a grand jury of Buchanan county for perjury, charged in the indictment to have been committed by him in the Iba case under the circumstances foreshadowed by the suggestion.

Thereafter said Eise was tried upon this charge of perjury on the 18th day of April, 1911, in the criminal court of Buchanan county, and by the verdict of a jury in the latter court, was found not guilty. Thereupon, and on the same day, to-wit, the 18th day of April, 1911, certified copies of the indictment in the case of the State of Missouri v. Eise, of the verdict-of the jury acquitting Eise thereof, and of the judgment of the criminal court discharging him, were offered in evidence in the Iba case in contravention and disproof of the said suggestion, with the affidavits attached, which had been by the defendants in said case theretofore filed. It will be noted that the latter pa-' pers were filed fifty-seven days after the expiration of the time mentioned by statute within which motions for. a new trial following a verdict, may be filed. In the meantime, from the date of the rendition of the verdict in the Iba case, until the 19th day of April, 1911, the circuit court of Buchanan county had continued in session in the regular January term, 1911, of said-court, without having adjourned to court in course; The motion for a new trial in the Iba ease, which had then been on file some fifty-seven or fifty-eight days, was taken up by Judge Eusk, the regular judge of thé circuit court of Buchanan county, in whose division the Iba case was then pending, and by him overruled!

During the consideration of this motion and while Judge Eusk was in the act of passing upon it, and while overruling it, he made, as appears from the context; certain remarks indicating the condition of his mind upon certain conclusions and views held by him touching the case and the mental processes by which these conclusions and views had been reached. At the time of their initial making these remarks were not taken down. Subsequently, however, and inferably just following the overruling of the motion for a new trial, the following colloquy occurred:

“Mr. Phillip: I would like for your Honor to let the record show the remarks your Honor made in overruling defendants’ motion for a new trial.
The Court: You want to get this whole thing before the Court of Appeals, and let them say, and I would be glad for them to do it.
“Mr. Crow: Then your Honor can write out your Honor’s views on this question, and I will agree to have it made a part of the bill of exceptions.
“Mr. Phillip: I would like for your Honor to state it. That your Plonor says, that you felt a new trial in this case ought to be granted, but you felt that under the legal rule you were not permitted to grant it; that is the substance of it.
‘ ‘ The Court: That approaches what I said. What I tried to say was this: That in the original trial of ’this Iba case, if the decision of the case had been left to me, I would have decided for the defendants, but when the case was ended, I did not feel that the preponderance of the evidence was so greatly in favor of the defendants as to warrant me in setting the verdict aside. Afterwards, these affidavits were filed against Rise, and that threw such a suspicion in my mind against his testimony, that I felt constrained then to set the verdict aside. Afterwards Rise was indicted and tried in the criminal court and acquitted. Then I felt that I ought to respect the verdict of that jury and sustain the verdict of this jury, and I felt constrained to that, by my respect for the machinery of courts and trials. Then if I shut this out, if I shut the right of these two juries out and get back to my own conclusions, toeighing Rise’s testimony as affected by the suspicions that had been thrown in my mind and everytMng that I had learned about the case, then I would still conclude that the verdict ought to be set aside, but I feel that I ought to defer and that I am outweighed and overruled by the verdict of this jury and the conclusion of the jury in the criminal court.
“Mr. Phillip: And in substance, that personally, the court feels that the verdict ought to be set aside, but you don’t think you ought to set it aside in view of the two verdicts returned, one in the criminal court, and one here?
“The Court: Yes, sir; that is it. Now if they can give us any light on that it may help- out some other time.”

Prom the verdict and judgment rendered in the Iba case the defendants took and perfected an appeal to the Kansas City Court of Appeals, in which court, before the case reached the stage at which we find it, it enjoyed a fitful and somewhat tempestuous career. It seems to have been twice affirmed and to have had sustained therein, following such affirmances, two several motions for re-hearings; finally coming on to be heard after Hon. Francis H. Trimble had become one of the judges of said Kansas City Court of Appeals, on the 5th day of May, 1913, Judge Trimble rendered an opinion in the case (in which Judge Ellison concurred, but to which Judge Johnson dissented), in which the case was reversed and remanded upon the ground, as the opinion which is before us discloses:

“That the record shows the trial court was convinced a new trial should be granted, and also shows that he did not follow his own judgment, but erroneously took the view that he should be governed by the action of the jury in the criminal court. This was •error. He had no legal right to substitute the judgment of that jury for his own judgment. The matter before him was one question; the one before that jury was an entirely different question. The parties were different; the issue was different and the amount, quality and quantity of evidence required by the law was different. ’ ’

Following the rendition of the opinion in the Iba case by the Kansas City Court of Appeals, this action of certiorari was brought for the purpose of reviewing the action of the Kansas City Court of Appeals and of quashing the judgment by them rendered,, should it be found by us that the Court of Appeals had in the opinion rendered, failed, neglected or refused to follow the last previous and controlling holding of this court on a matter of law.

We deem this a sufficient statement of the points involved in the controversy before us, but should insufficient light, by reason of lack of facts, be thrown upon the case by the subjoined opinion, other facts may be obtained and the whole case seen at length as reported under the style of Iba v. Chicago, Burlington (S Quincy Railroad Co. et al., 172 Mo. App. 141, to which reference, in such contingency, is hereby made.

Under the state of facts recited above we are asked, in the exercise of our superintending control over the several courts of appeals (Section 6, Amendment of 1884, Constitution of Missouri), to quash the judgment rendered by the Kansas City Court of Appeals, pursuant to the opinion handed down in the Iba case, and to direct that court to re-hear said cause and to determine it in accordance with the rulings of this court in the- case of Bank v. Porter, 148 Mo. 176; and Mirrielees v. Wabash Railroad Co., 163 Mo. l. c. 490, and other cases cited, having reference to the time of filing motions for a new trial and of amending same, .with which, relator avers, the holding of the Court of Appeals in the Iba case conflicts.

. AH of the contentions between learned counsel; all ■of .'the points of difference strenuously urged in the Kansas City. Court of Appeals and now here again urged in this action, to review the action of that court, are based upon the language used by the learned nisi prius court after he had ruled adversely to the defendants’ contentions upon the motion for a new trial. Exactly and in his exact words, what the court nisi said we have not, nor have we ever had, before us. Something of pith and moment apropos to the matter in hand he must have said, if we are to judge of it by the commotion which a bare repetition — a subsequent supplying of it — has raised.

Learned counsel for relator here, who were and are likewise counsel for plaintiff Mrs. Iba, strenuously insist, both in their briefs and in oral argument, that the language used by Judge Rusk has no place in the record; for the reason that, while counsel consented that the words theretofore used by Judge Rusk when he passed upon the motion for a new trial, might be supplied in writing by the trial court cmd made a part of the bül of exceptions, counsel did not consent that the language of Judge Rusk could be supplied by oral dictation to the court stenographer, and transcribed, and thus be carried into the bill of exceptions. We think this view of counsel for the relator is too narrow and technical, under the modern methods of expediting court matters and all other business affairs by dictating that which it is desired to have written to a stenographer, who afterwards transcribes it, and thus does the physical labor of writing a thing but has no part in the mental labor involved in clothing the thought in'words. Besides, when Judge Rusk came to sign the bill of exceptions ample opportunity was afforded to him to say that which he intended to say, if he was not correctly reported. We think relator is bound by what Judge Rusk said as a matter of fact; whether or not the time and circumstances under which it was said, give it legal potency is another question. We doubt, however, whether relator is bound upon the strict letter of Ms agreement by what learned counsel for respondents (who was likewise of counsel for defendants) said in the colloquy wMcli has caused tMs trouble.

Patent it is, that if what was said by Mr. Phillip, to which the court nisi consented merely and perhaps carelessly, is left out of consideration (and most probably even with this regarded) a casual examination of the language of Judge Rusk discloses that he did finally act according to his own first conclusion and judgment as they were made upon his mind by the trial of the case. “That approaches,” says Judge Rusk, “what I said. What I tried to say was this: That in the original trial of this Iba case, if the decision of the case had been left to me, I would have decided for the defendants, but when the case was ended, I did not feel that the preponderance of the evidence was so greatly in favor of the defendants as to warrant me in setting the verdict aside. ’ ’ What does he here express ? Clearly his views before those views were shaken by the extraneous matter of the suggestion with affidavits attached which came into the case some forty-seven days after the trial ended. What does he say he would have done, but for these affidavits? Sustained the verdict evidently, for so he expresses himself when he sayc: “When the case was ended I did not feel that the preponderance was so greatly in favor of the defendants as to warrant me in setting the verdict aside.” When did he change his mind, and what caused the change? Indubitably only upon the filing of the suggestion and affidavits, for he says: “Afterwards these affidavits were filed against Rise and that threw such a suspicion in my mind that I felt constrained then to set the verdict aside.” The inference of perjury arising from the contents of the affidavits, it then clearly appears is what shook the learned court from the view he held ■when the case was ended. Later, he was driven from this view, inferably — except for the suspicion caused by the affidavits — back to Ms original position, by the fact that Rise was indicted for tbe identical perjury charged in the self-same affidavits which created the suspicion in the mind of the court; tried therefor by a court of competent jurisdiction and acquitted — triumphantly, counsel for relator impresses upon us.

Upon this he felt that the verdict of the jury in the criminal case ought to have such weight as to relieve his mind of the suspicions inserted therein by the affidavits, and that he ought, as a duty made incumbent upon him by law, to respect the verdict of acquittal and give full force and validity to the verdict of the jury in the Iba case. Thus, the learned trial judge having' been blown from his course by affidavits filed forty-seven days too late, was blown back thereto by a verdict of acquittal in another case rendered fifty-seven days after the expiration of the time to lawfully file a motion for a new trial. It may be urged that Judge Rusk never was again in a condition of mind to let the verdict stand, when Ms judgment was not colored by the fact of the affidavits against Rise, or by the verdict of acquittal in his favor; this we must concede, for so his own woi*ds advise us: “If I shut the right of these two juries out and get back to my own conclusions, %veighing Rise’s testimony as affected by the suspicions that had been throivn in my mind and everything I had learned about the case, then I would still conclude that the verdict ought to be set aside.”

But all of this goes to show that he did not intend to sustain the motion for a new trial till the affidavits were filed, and that his wavering, as he admits it to have existed, was solely and wholly caused by matters occurring long after the trial. That no such condition of mind existed when the motion for a new trial was filed in the Iba case, the court Mmself says in language which is unmistakable. This is clear even if we give full force and effect to the consent vouchsafed by the court as to the views of learned counsel for the railroad as written by the latter into this colloquy.

If it were not for the excerpt which we quote below and which specifically shows the contrary, we would gather from the whole context of the opinion that the Kansas City Court of Appeals placed a different interpretation upon the language of Judge Rusk from what we here place upon it. We have set out already herein exactly what Judge Rusk said when he supplied the language which he used in passing upon the motion for a new trial. We have tried to-analyze this language and give our view of what Judge Rusk meant. However, here is what the learned judge who wrote the opinion of the court in the Kansas City Court of Appeals says Judge Rusk meant to say:

“To put it in another way, the court says: ‘If this case had been left to me I would have decided it the other way, and when the case was ended I felt that the preponderance of the evidence was with the defendants, but it was not so greatly in their favor as to warrant me in setting the verdict aside. I felt this way even before I knew that one of the witnesses was charged with perjury. Afterwards, when these affidavits were filed, I felt constrained then to set the verdict aside. But I learn that Rise has been acquitted of perjury by a jury in the criminal court, and I feel that I ought to respect the verdict of that jury, and I feel that way because of my respect for the machinery of courts and trials, not because my views as to the weight of the evidence have changed. In fact, when I shut out the acquittal of this other jury and get bach to my own conclusions, weighing Rise’s testimony and knowing what I do about the case tried before me, I still conclude that the verdict ought to be set aside, but I will not do so out of regard for the trial in the criminal court.’ ” [172 Mo. App. l. c. 157.]

It will be noted that the learned court yet retains in its. analysis of Judge Rusk’s position, words which strike us as controlling, that is to say: “When the case was ended I felt that the preponderance of the evidence was with the defendants, but it was not so greatly in their favor as to warrcmt me in setting the verdict aside. I felt this way even before I knew that one of the witnesses was charged with perjury.”

If the view taken by the Kansas City Court of Appeals had disclosed a mistake of facts; had shown, in other words, that the court found that Judge Rusk was of the view even before the affidavits charging perjury were filed and before the verdict of acquittal came in, that the preponderance of the evidence was so greatly in favor of the defendants as to warrant him in setting the verdict aside, then a different question would be here. But till these untimely extraneous matters were injected into the case, Judge Rusk intended to let the verdict stand. Everything he said about it so indicates, and from the language used, the Court of Appeals itself so found. If he had set this verdict aside a different question entirely would be before us:

Because, as we reacj. the statute (Sec. 2023, R. S. 1909), great latitude is allowed to the trial court in granting one new trial on the ground of the weight of the evidence. By our holdings, also, we Lave referred this matter to the sound judicial discretion of the court ■nisi, and have held almost uniformly that the action of the court below in granting a new trial for the reason that the verdict of the jury is against the weight of'the evidence will not be disturbed on appeal, unless it appear from all of the evidence in the case that a verdict in favor of the party to whom the new trial was granted would not have been allowed to stand. [Fitzjohn v. St. Louis Transit Co., 183 Mo. l. c. 78; Casey v. Transit Co., 186 Mo. l. c. 232; Warner v. Railroad, 178 Mo. l. c. 129; Haven v. Railroad, 155 Mo. l. c. 229; Hoepper v. Southern Hotel Co., 142 Mo. l. c. 387; Ottomeyer v. Pritchett, 178 Mo. l. c. 165; Herndon v. Lewis, 175 Mo. 116; Ewart v. Peniston, 233 Mo. 695; Higgins v. Higgins, 243 Mo. l. c. 171.] But clearly, this statute has no application in a converse sense, that is, if the learned trial court refuse to grant a new trial on this ground or any other urged upon him, it is incumbent upon the appellant to prove to the appellate court, in order to rebut the presumption entertained of right action (State v. Burns, 85 Mo. 47; Finkelnburg and Williams, Missouri Appellate Practice (2. Ed.), p. 149), that error occurred upon the trial, and to prove also, unless we judicially notice it, that the error which occurred was so prejudicial as to require reversal, before reversal will be warranted. [Sec. 2082, R. S. 1909.]

The common law power of a court of general jurisdiction1 to grant new trials upon the court’s own volition, has not been abrogated by any statute in this State. [Standard Milling Co. v. Transit Co., 122 Mo. l. c. 270; Hewitt v. Steele, 118 Mo. 463.] And the courts nisi may yet grant new trials in the exercise of their inherent or common law powers, for reasons to be by the court set forth in its order, though such reasons are not urged in the motion for a new trial. The right to grant new trials on the ground of the weight of the evidence has been limited, however, by statute to one new trial on this ground, so that the trial court may not perennially usurp the functions of the jury and substitute the court’s judgment for that of the triers of fact upon matters of pure fact. [Sec. 2023, R. S. 1909; Ewart v. Peniston, 233 Mo. l. c. 707.] The right also to grant to the same party more than one new trial on any one issue is limited by statute. [Sec. 1994, R. S. 1909.] As stated, both of these sections are limitations upon the powers of the trial courts, as such powers inhered in courts of general jurisdiction at common law.

So much upon both views being fairly well resolved, did Judge Rusk under the authorities in this State err when he refused to set aside the verdict in the Iba case? We think not. To us nothing is clearer than that he did not have the intention to set aside the verdict till affidavits were filed attacking the witness Rise, for that, as it was charged, he had perjured himself upon the Iba trial. Shaken, however, as we say-above in another figure, from his judicial plumb by the suspicions thus thrown into his mind, he never regained exactly the attitude toward the case which he had held “when the trial was ended.” If the method of his being shaken from his original view had been a lawful and proper one, we would not hesitate to say that he was not warranted by law in harking to the verdict of the trial jury in the criminal case. This verdict in the criminal trial was not binding upon him as a rule of decision in the matter of determining whether Rise had perjured himself upon the trial of the Iba case.

But Judge Rusk was not of the opinion that he ought to set aside the Iba verdict till his mind was poisoned by suspicions created -therein by extraneous matters thrust into the case forty-five days after the time to file a motion for a new trial, or an amended motion for a new trial, had expired. If he had been in such mind till then, or even if the learned Court of Appeals had found that he was till then in such mind, we would not rule here as we shall, for reasons ultimately herein to be set out.

The case indubitably turns on the single question applied to the facts in judgment: Is a trial court compelled to consider matters and things urged in a motion for a new trial filed out of time? "We have seen that he may do so; that he might have granted a new trial in this identical case and kept well within his rights. But are we to convict him of error because he refused to be moved to exercise his judicial discretion to grant a new trial by such matters so untimely filed, even though the doubt in his mind was likewise resolved by the consideration of a matter legally forbidden to be considered? We think not, though we keenly perceive how nearly the periphery of this view is tangent to the views expressed in the learned opinion of the Court of Appeals. He ought, we think, to be governed in the exercise of his discretion in this behalf by judicial reasons and by the law as it moves in its usual and recognized channels. He ought not to act arbitrarily, or be moved by holding a private primary election, or be governed by auguries, as the Romans were by the flights of birds, or foretell the legal propriety of a new trial by the thickness of the corn-husks, as rural weather prophets forecast the coming of a hard winter. So, by reductio ad absurdum, we try to make clear the point in mind.

Whatever the rule may be in other jurisdictions, it is well-settled that in this State neither a motion for a new trial, nor an amended or supplemental motion for a new trial, may be filed after the expiration of the four days fixed by statute (Sec. 2025, R. S. 1909); nor may a motion timely filed be amended in matter of substance after such time has elapsed. [Bank v. Porter, 148 Mo. 176; Mirrielees v. Wabash Railroad Co., 163 Mo. 470; Bank v. Bennett, 138 Mo. 494; State v. Dusenberry, 112 Mo. 277.] Upon this identical point this court in the case of Bank v. Porter, 148 Mo. l. c. 183, said:

“Section 2243, Revised Statutes 1889, provides that ‘all motions for new trials and in arrest of judgment shall be made within four days after the trial, if the term shali so long continue; and if not, then before the end of term,’ and is clearly mandatory, leaving no discretion whatever in the court with respect to the time of filing such motions. Nor does it make any exception upon the ground of newly discovered evidence, or anything else which may occur or be discovered after the expiration of the time fixed thereby in which the motion is required to be filed. The merit of such a motion with respect to its'filing has nothing to do with. it. Whether meritorious or otherwise, it must be filed within the prescribed time. [State v. Brooks, 92 Mo. 542; Maloney v. Railroad. 122 Mo. 106;. City of St. Joseph v. Robinson, 125 , Mo. 1.]”

That which was offered to the trial court in the Iba case by way of suggestion and affidavits, forty-five days after the time to file a motion for a new trial had expired, was newly discovered evidence. No more and no less. The nature of it cannot be' glozed over by calling it “a suggestion.” The defendants in the Iba case may not accomplish by indirection that which they could not do directly. By statute the court is expressly authorized to grant a new trial if the court is satisfied that perjury has been committed upon the trial (Sec. 2022, R. S. 1909),. but side by side with this section is the further provision, that ‘ all motions for new trials and in arrest of judgment shall be made within four days after the trial.” [Sec. 2025, R. S. 1909.]

We conclude that Judge Rusk had no legal right to consider either the suggestion and affidavits .filed by the defendants forty-five days out of time, or the papers showing the acquittal of Rise, filed fifty-seven days out of time. He ought not under the facts to have considered these for any purpose in the Iba case, because they were all untimely filed. That since Judg’e Rusk was convinced before the affidavits attacking Rise were filed that “the preponderance of the evidence was with the defendants, hut not so greatly in their favor as to ivarrant him in setting the verdict aside,” no error meet for reversal may be based upon the fact that his views on the question of the weight of the evidence were temporarily shifted by extraneous matters injected into the case in an untimely and illegal way and long after it was tried. Having no legal right to be swayed by this suggestion and the affidavits, it makes no difference that his views may later have undergone another change on account of other illegal and untimely extraneous matters which he permitted himself to consider. All of the difficulties which we see -in the case; the sole and single error found by the Court of Appeals, and most of the errors urged by appellant for a reversal of the Iba case, came into it for the first time some six weeks after it was tried.

We repeat, that if the learned judge who wrote the opinion in the Court of Appeals had found that Judge Rusk was at the end of the trial in the Iba case of the opinion that the verdict therein should be set aside because it was against the weight of the evidence, then no valid objection to his views could be urged, and while opinions might differ as to the correctness of such view of the facts upon this record, yet no ground for jurisdiction in us by certiorari would have existed; because the error, or difference in view, would then have arisen upon a question of fact. On such a question, in cases wherein they have juxfisdiction, the several courts of appeals have the same right to decide, even erroneously, as we have, and we may not interfere in any wise, whether in our judgment their opinion be right or wrong. Upon-a point of law arising from undisputed facts, they are required to follow the last previous ruling of this court. [Section 6, Amendment of 1884, Constitutioxi of Missouri.] If they do not we have held that a judgment rendered by them in contravention of the constitutional mandate above referred to may be quashed by us xxpoxx certiorari. [State ex rel. v. Broaddus, 238 Mo. 189; Curtis v. Sexton, 252 Mo. 221.] The rule last announced is so recent, that we may be pardoned for refusing to again discuss it, though coxxnsel for respondents urge the error of this view upon us.

Upon the argument of this case I was of the opinion that our writ of certiorari issued herein should be quashed and that the judgment of the Court of Appeals in the Iba case should not be disturbed. But upon an examination of The authorities and a careful reading of the record in the instant case, as well as in the Iba case, I have been forced to revise my views as first held, even against my own mental striving to see the case the other way.

It follows that since the opinion rendered by the Kansas City Court of Appeals on May 5, 1913, in the case of Mary Iba v. Chicago, Burlington & Quincy Railroad Company et al., is contrary to the last previous rulings of this court as expressed in the cases of Mt. Yernon Bank v. Porter, 148 Mo. 176, and Mirrielees v. Wabash Railroad Company, 163 Mo. 470, that the judgment based thereon should be quashed and for naught held and that said cause should be remanded to that court to be retried by it and determined in conformity with the views announced herein. It is so ordered.

Lamm, G. J., Graves, Brown and Walker, JJ., concur; Woodson, J., dissents in separate-opinion in which Bond, J., concurs.

DISSENTING OPINION.

WOODSON, J.

— I dissent from the opinion written by my learned brother Paris in this case, for the reasons stated in my dissenting opinion written in the cáse of State ex rel. v. Broaddus, 238 Mo. l. c. 230.

With all due respect for my learned associates, I am of the opinion that the assumption of jurisdiction in this case, by this court, is a clear usurpation of authority.

This opinion, as well as the one upon which it is based, clearly eliminates section 6 of the Amendment of the Constitution in the year 1884, page 101 of Volume I of the Revised Statutes of 1909; which amendment created the Kansas City Court of Appeals, and said section 6 clearly limits the jurisdiction of this court in reviewing the judgments of that court. This case clearly does not come within the pale of that section, wThich has uniformly been the ruling of this court in some fifty odd cases, extending over a period of almost a third of a century, long before some of us began the practice of law.

In the dissenting opinion mentioned, this amendment is considered, and many of the rulings of this court upon this proposition are cited and reviewed; every one of which clearly holds that this court has no-jurisdiction of this, or this class of eases.

In those cases, not only was section 3 of article 6 of the .Constitution, the. section upon which my learned brother’s opinion in this case is based, considered, but said section 6 of the Amendment was considered along with it. The latter clearly qualifies the former, as this-court has held, as previously stated, in some fifty-odd cases.

Moreover, said section 3 gives this court superintending control over all inferior courts, such as the county, probate and circuit courts, as well as over the courts of appeals.

Now, if the majority opinion is sound law, then this court could with much stronger reasons assume jurisdiction over and review errors of those courts by certiorari, or some one of the original writs mentioned in said section, than those assigned for assuming jurisdiction over the errors of the courts of appeals. Yet,, who for a moment, would seriously contend for such an absurd proposition?

My reason for this statement is, that in so far as the courts of appeals are concerned, said section 6 of the Amendment expressly limits the jurisdiction of this court over the courts of appeals as provided for in said section- 2, in the manner as stated in the numerous cases previously mentioned, while as to the county, probate and circuit courts, no such limitation is provided for.

Notwithstanding that, this court has assumed jurisdiction to review the errors of the courts of appeals where no member thereof would dream of reviewing the errors of the other courts mentioned by original writ, but would confine its investigation and rulings to questions of their jurisdiction only.

But independent of that, the assumption of jurisdiction by this court, over the ruling of the various courts of appeals, as to matters of error, will practically destroy their efficiency by subjecting their opinion to removal, and review by this court. It will also largely destroy the efficiency of this court, by lifting that floodgate and pouring into this court any and all cases any one of the thousands of attorneys may desire to bring to this court for review. Even though a majority of the writs applied for should not be issued, which would be contrary to the present practice of this court,- in that respect, yet the time which would be necessarily consumed in determining whether or not they should be issued, would take a large part of the remaining time of this court, one-half or more of which is already taken up with original writs and Banc cases, which at our last call numbered about seventy-five.

In the light of these facts, when and where will the rights of ordinary litigants who appeal their cases or who bring them by writs of error to this court and the various courts of appeals, be determined?

Bond, J., concurs herein.


author: WOODSON, J.

text:
    THE STATE ex rel. PUBLIC SERVICE COMMISSION v. CORNELIUS ROACH, Secretary of State.
    In Banc,
    April 2, 1914.
    1. DISTRIBUTION OF STATUTES: Head of Department: Public Service Commissioners. The statute requiring the Secretary of State to deliver "to the head of each State department, bureau or institution . . . each one copy” of the Revised Statutes and Session Laws should be construed according to its meaning and spirit rather than its exact letter; and, when so construed, it means that each of the five commissioners of the Public Service Commission is a “head of a department, bureau or institution” and entitled to receive from the Secretary of State a copy of the Revised Statutes and Session Laws, since hy the act creating the commission, each commissioner may act separately in any part of the State in carrying out the vast powers conferred upon the commission. Besides, the statute in effect requires the Secretary of State to furnish both the Revised Statutes and the Session Laws to all state, county and township officers who have any legal duties to perform, and that would seem to imply that the commissioners, whose duties are many fold more important than those of some of those officers, should each he furnished with said books.
    2. STATIONERY: For Public Service Commission. The Laws of 1913 did not require the Secretary of State to pay for the stationery for the Public Service Commission out of the twelve thousand dollars appropriated “for stationery for the office of Governor, Secretary of State, State Auditor, State Treasurer, Department of Education, Railroad and Warehouse Commissioners,” etc. The Public Service Commission, hy statute, succeeded to the powers and duties possessed and exercised by the Railroad Commission, hut that fact did not make available for the former the appropriation for stationery made for the latter. That is apparent for two reasons: first, because the same act appropriated $150,000 to pay the contingent expenses of the Public Service- Commission, including stationery; and, second, appropriation acts are not permanent laws, existing until subsequently repealed, as is the act devolving the powers of the Railroad Commissioners upon the Public Service Commission, but expire hy their own limitation at the end of two years, and the act abolishing the Railroad Commission made no provision for paying for stationery for it.
    Mandamus.
    Writ denied {in part).

      E. J. Bean for relator.
    (1) The demurrer of respondent should be overruled and the writ of mandamus should issue as ashed by relator in its petition. Merrill on Mandamus, par. 108, p. 130. (2) The reason of the law prevails over its letter. 'General terms are so construed as not to lead to injustice or absurd consequences. The purpose and intent of sections 8096 and 8069 was to require the Secretary of State to deliver copies of the Revised Statutes and Session Laws to all officers of the State whose duties required a construction or enforcement of such statutes, or any part of the same. Therefore,, the words “head of each State department, bureau or institution” should be so construed as to include each commissioner of the Public Service Commission. Secs. 8096, 8069, R. S. 1909; Kenney v. McVoy, 206 Mo. 67; Yerdin v. St. Louis, 131 Mo. 163; United States v. Kirby, 7 Wall. 472; State ex rel. v. King, 44 Mo. 283; Public Service Commission Act, Laws 1913, p. 557, secs. 3, 4, 11, 12, 16, 46, 81,' 102, 108 and 109; 2 Lewis ’ Sutherland Statutory Construction (2 Ed.), par. 590, p. 1085. (3) It was the duty of the respondent to furnish relator stationery, as asked in the petition of relator herein. Secs. 10361, 10363, R. S. 1909; Laws 1913, p. 17, sec. 27; Public Service Commission Law, Laws 1913, p. 650, secs. 132, 133, 136; Laws 1913, p. 9, sec. 12d; Laws 1913, p. 42, sec. 7; Laws 1913, p. 25, sec. 62. (4) “In order to ascertain the true intent of the Legislature we must construe all sections of the statute upon the subject in controversy together.” State ex rel. v. Perry Co., 208 Mo. 639; 36 Cyc. 1151, par. 3.

      John T. Barker, Attorney-General, and S. P. Howell for respondent.
    (1) Each member of the Public Service Commission is not, within the meaning of this act, the head of a department, bureau or institution. Bouvier’s Law Dictionary, p. 270; U. S. v. Germaine, 99 U. S. 508; U. S. v. Yan Leuven, 62 Fed. 62; People v. Fire Commrs., 86 N. Y. 149; Black’s Law Dictionary, p.. 354; R. S. 1909, sec. 8096; U. S. v. Mouatt, 124 U. S. 303. (2) Sec. 11, p. 563, Laws 1913, provides that all books and stationery needed for the commission shall be paid for in the same manner as other expenses; section-15 provides that all salaries and expenses of the commission shall be paid out of the funds provided therefor; Sec. 41, p. 18, Laws 1913, appropriates one hundred and fifty thousand dollars to pay the contingent expenses, including printing and office supplies of the Public Service Commission; it is therefore clear that this commission must pay for the statutes and its printing, books and stationery out of its own funds, as provided by the Legislature. Sec. 11, p. 563, Laws 1913; lb., Sec. 15; Sec. 41, p. 18, Laws 1913. (3) "Where the language of a statute is unambiguous and its meaning evident, courts have no right by construction to substitute their ideas of legislative intent for that unmistakably held by the Legislature and unmistakably expressed in legislative words. The meaning of the words, “head of each State department, bureau or institution,” is plain and unambiguous. Sec. 8096, R. S. 1909; Clark v. Railroad, 219 Mo. 534; State ex rel. v. IRiley, 203 Mo. 175; Smith v. Railroad, 143 Mo. 37; 'Henry v. Evans, 97 Mo. 55; State ex rel. v. Gammon, 73 Mo. 426; State ex rel. v. Wilder, 206 Mo. 541; State v. Duggan, 15 R. I. 403; McKay v. Pairhaveu, 75 Conn. >608; Lewis’ Sutherland Stat. Const. (2 Ed.), par. 367, p. 702; lb., par. 366, p. 698; Lemonius v. Mayer1, 71 Hiss. 514.
   WOODSON, J.

— This is an original proceeding in•stituted in this court by the relator against the respondent asking for a writ of mandamus requiring the latter to furnish to the former five copies of the Revised Statutes of Missouri of 1909, and five copies each ■of the Session Laws of the State for the years 1911 .and 1913, as well as certain stationery mentioned, for •the use of the relator and the five members thereof in its and their official capacity.

Upon filing the petition for the writ, respondent waived the issuance of the alternative writ, entered his .■appearance and stipulated with respondent to the effeet that the petition might be considered and treated as the alternative writ.

Prior to the return day the respondent filed a demurrer to the petition.

Prom, this brief statement of the case it will be seen that this is a friendly suit growing out of an honest difference in opinion among public officers as to what are the rights and duties of the respective parties in the premises.

The case having assumed this aspect, it becomes necessary to set out the petition and demurrer thereto, in order to intelligently present the legal propositions involved. With formal parts omitted, they are as follows:

“Your petitioner herein respectfully represents:
“That the Public Service Commission of the State of Missouri was created by the Public Service Commission Act, which was- duly enacted by the Legislature of the State of Missouri, and which came into full force and effect as the law of said State on the 15th day of April, 1913. That the Public Service Commission, as. created by said law, consists of five commissioners, and that in accordance with the terms and provisions of said law the Governor of the State of Missouri has heretofore appointed as commissioners John M. Atkinson, commissioner and chairman of said Commission, and the following commissioners: John Kennish, H. B. Shaw, Wm. P. Woerner and Prank A. Wightman. That on the-day of July, 1913, and at all times hereinafter mentioned, each of said commissioners had taken the oath of office as prescribed by law and had duly qualified, entered into the discharge of his duties as prescribed by law and has continued so to do, and is now engaged in the discharge of the duties of commissioner of the Public Service Commission. That the said commissioners constitute the Public Service Commission of the State of Missouri. and are public officers, of the said State. That it is the duty of said Public Service Commission and of each of the commissioners thereof to administer, construe and enforce the laws of this State governing the rates, service, the issue of bonds and stock, etc., by common carriers, gas, electrical and telephone companies, etc., which are engaged in serving the public in said State, and that it is the duty of the said Commission, and of each commissioner, to investigate, construe and enforce the laws of the State in the foregoing particulars.
“That on and prior to the said-day of July, 1913, and at all times hereinafter mentioned, Cornelius Roach was the duly elected, qualified and acting Secretary of State within and for the State of Missouri. That as such and by virtue of the law of said State, he was the custodian of the printed copies of the public statutes of the State of Missouri, including the Revised Statutes of said State for the year 1909, contained in three volumes, numbered one, two and three, and the acts of the Legislature of the State of Missouri for the year 1911. That said Cornelius Roach, at the time aforesaid, and now has in his possession as such custodian a large number of the printed copies of the said Revised Statutes of the State of Missouri' for the year 1909, and the acts of the Legislature of the State of Missouri for the year 1911, which were printed and furnished to him by said State. That under the laws of said State it is and was the duty of said Roach to furnish and deliver to the Public Service Commission five copies of volumes one, two,., and three of said Revised Statutes of the State of Missouri for the year 1909, and five copies of the acts of the Legislature of the State of Missouri for the year 1911, and five copies of the acts of the Legislature of said State for the year 1913, for the use of each of said commissioners in the discharge of their duties as commissioners aforesaid. That on the - day of June, 1913, said Cornelius Roach, as Secretary of State, did furnish and deliver to the said Public Service Commission for the use of said Commission, five copies of the acts of the Legislature of said State for the year 1913. and one copy of volumes one, two and three of the Revised Statutes of the State of Missouri for the year 1909, and one copy of the acts of the Legislature of the State of Missouri for the year 1911, for the use of said commissioners. That on the--day of July, 191.3, the Public Service Commission did demand and request, in writing — which demand is herewith filed, marked Exhibit “A” — that said Roach furnish and deliver to said Commission four copies of volumes one, two and three of the Revised Statutes of the State of Missouri for the year 1909, and four copies of the acts of the Legislature of the State of Missouri for the year 1911, for the necessary use of the said commissioners and of the Public Service Commission in the discharge of their duties. That said demand in writing was delivered'to the said Cornelius Roach as Secretary of State on said-day of July, 1913. That the said Cornelius Roach did then and there wrongfully refuse, and still wrongfully refuses, to deliver to the Public Service Commission four copies of the Revised Statutes for the year 1909, and four copies of the acts of the Legislature of the State of Missouri for the year 1911, as so requested, or any part or portion thereof, notwithstanding that he had theretofore been advised that he could lawfully so do by the Attorney-General of the State of Missouri.
“That on said-day of July, 1913, the said Cornelius Roach, as Secretary of State, was the custodian and had under his control and possession stationery for the use of the said Public Service Commission for which payment had been provided for in section 27 of an act passed by the Legislature of said State and approved by the Governor thereof on the '23rd day of April, 1913, which act appropriated from the treasury of said State, chargeable to the revenue fund thereof for the years 1913 and 1914, the sum of twelve thousand dollars for stationery for the offices of the Railroad and Warehouse Commissioners and other public officers of said State. That many years prior to April 15, 1913, the State of Missouri had authorized and established a Board of Railroad and Warehouse Commissioners, which consisted of three members. That said board was vested by law with authority to investigate and enforce the laws . of the State governing rates, service, equipment, etc., of railroads and express companies. That by the Public Service Commission Act aforesaid the Board of Railroad and Warehouse Commissioners and the offices of the commissioners thereof were abolished, and that the powers and duties of the Board of Railroad and Warehouse Commissioners were imposed by said act upon the Public Service-Commission, together with other duties. That it was provided and enacted by said Public Service Commission Act that the Board of Railroad and Warehouse Commissioners should transfer to the Public Service Commission all maps, books and records of their said office. And that it was further provided that wherever the terms ‘Board of Railroad and Warehouse Commissioners ’ occur in any law that such terms or references should be deemed to refer to and include the Public Service Commission of the State of Missouri. That the Public Service Commission is therefore entitled to the stationery, as provided for in section 27 aforesaid, for the Railroad and Warehouse Commissioners. That the said Cornelius Roach, as Secretary of State, at the time aforesaid, did have in his custody and possession large amounts of stationery, including the articles hereinafter set forth, for which payment was provided from said fund so appropriated for stationery for the Public Service Commission as successor to the Board of Railroad and Warehouse Commissioners. That on the-day of July, 1913, it was necessary for the use of the Public Service Commission and the commissioners thereof, and its officers and employees, in the discharge of their duties to have and use the stationery hereinafter named. That on said-day of July, 1913, said Public Sendee Commission did demand, in -writing, from said Cornelius Roach as Secretary of State that he furnish and deliver to the said Public Service Commission the following named articles of stationery for its use:
‘ ‘ [Then follows a long list of the stationery demanded.]
“And which articles are as described in the written demand aforesaid- — -which is hereto attached, marked exhibit “B” and which articles are as aforesaid. That the said Cornelius Roach did then and there wrongfully refuse and still unlawfully refuses to deliver said -articles, or any part thereof, to the Public Service Commission, notwithstanding he had been advised that he could lawfully so do by the Attorney-General of the State of Missouri.
“Petitioner further states that it is remediless in the premises by or through the ordinary processes or proceedings at law, and therefore prays this honorable court to award against Cornelius Roach, as Secretary of State of the State of Missouri, a writ of mandamus, demanding and requiring him to furnish and deliver to the petitioner herein four copies of volumes one, two and three of the Revised Statutes of the State of Missouri for the year 1909; four copies of the acts of the Legislature of the State of Missouri for the year 1911; 6 boxes “NePlus Ultra” typewriter paper No. 8, plain; 6 bunches requisition bond; 3 bunches amber traffic; 6 boxes purple carbon paper; 6 boxes black carbon paper; 6 black and red record Underwood typewriter ribbons; 6 purple and red copying Underwood typewriter ribbons; 3 dozen Faber No. 2 pencils; 3 dozen Dixon’s special pencils; 3 dozen red pencils; 3 boxes Falcon pens; 6 jars paste; 1 dozen rolls pins;, 3 boxes O. K. fasteners; 6 boxes paper clips, and for sncb other process and orders as to the court may seem meet and just.”

The demurrer was as follows:

“Comes now the defendant, Cornelius Roach, Secretary of State of the State of Missouri, and demurs to the petition and alternative writ in this case, which by agreement is the petition, and as grounds for this demurrer, the defendant says:
“1. That said petition and alternative writ does not state facts sufficient to constitute a cause of action against this defendant and in favor of plaintiff relators.
“2. That said petition and alternative writ and all the matters and things therein stated and set forth are not sufficient in law or equity to entitle the plaintiff to the relief asked for in the petition or any part of said relief, or to authorize the issuance of the writ of mandamus as prayed for.
‘ ‘ 3. The law provides ample means for the relator to obtain the books and supplies which relators now seek to secure in this proceeding from defendant.
“Wherefore, the defendant prays the judgment of this court upon this demurrer, discharging defendant from further proceeding in this cause.”

I. There are two separate and distinct legal propositions presented by this record for determination: first, does the law require the Secretary of State to furnish a copy of the Revised Statutes of Missouri for the year 1909, and of the Session Laws for the years 1911 an(j 1912 to each of the five members „ .. of the Public Service Commission? and, second, does it require that the Secretary furnish to the Commission the stationery demanded?

We will consider these propositions in the order stated.

Attending the first: This question turns upon the true meaning of sections 8096 and 8069, Revised Statutes 1909.

Those sections, as far as they are material to this question, read as follows:

The former reads:

“There shall be printed twenty thousand copies of each volume of the Revised Statutes, which shall be received by the Secretary of State, and by him held and disposed of as follows: To the head of each state department, bureau or institution, judges of the Supreme Court and courts of appeals, the judges of the circuit and state criminal courts, the members of the General Assembly, the libraries of the State University and normal schools, to each public library, on application of the librarian, he shall deliver each one a copy. . .

And the latter reads:

“The Secretary of State shall distribute the printed copies of the laws and resolutions passed at each session of the General Assembly immediately after receiving the same in the manner following, namely: To the head of each state department, bureau and institution, including each judge of the Supreme Court, one copy; to the law library of the Supreme Court of this State, six copies. . . .”

The former regards the Revised Statutes and the latter the Session Laws; and as there is no difference in the meaning of the two, we will deal with the first only, and what is there said will apply equally to the second.

The contention of counsel for relator is, that the words of the statute, the “Heads of each State department, bureau or institution,” mean and should be construed so as to include each commissioner of the Public Service Commission.

This contention is predicated upon the well known rule of statutory construction that the spirit and meaning of the statute should prevail over the letter thereof.

In order to apply this rule we must turn to the act creating the Commission and ascertain therefrom the nature and character of the Commission and the respective members thereof, as well as their rights and duties, as prescribed by that act. That act begins at page 557 of the Laws of 1913 and ends on page 651.

Without going into details this act creates the Commission and confers upon it certain powers and authorities too numerous to mention, among others largely those that were formerly possessed by the Board of Railroad and Warehouse Commissioners. In addition the act confers many of the same powers upon each of the five members of the Commission acting separately in the various portions of the State, with a requirement that they report the same to the Commission for final action. [State ex inf. Atty.-Gen. v. Kansas City Gas Company, 254 Mo. 515.]

Under these general provisions of the act, counsel for respondent concede that the Commission is entitled to one copy of the statutes and said acts of the Legislature, hut deny that each member thereof is entitled to them.

We are not able to lend our concurrence to this position of the relator, for the reason that if the Commission itself is a head of a department, bureau or institution, then by parity of reasoning it seems to me that each member thereof, under a liberal construction of the statute in the light of the vast powers they possess, and duties required to be performed by them, should likewise be held to be the head of a department, bureau or institution.

Each and all of them may hold separate sessions in various parts of the State, at the same time. [State ex inf. Atty.-Gen. v. Kansas City Gas Co., supra.]

This interpretation of the statute is in harmony with and strengthened by the general provision of the same section of the statute, and kindred statutes, which in-effect require the Secretary of State to furnish the Eevised Statutes and Session Laws to all state, county and even the township officers who have any legal duties to perform.

That being true, why should they be favored with the laws that are to govern their official conduct and at the same time withhold them from these commissioners whose duties are perhaps a thousandfold more complicated and equally if not of greater importance for the public welfare? The asking of the question answers it. There is no reason for such a discrimination.

I am, therefore, clearly of the opinion that it was the duty of the Secretary of State to furnish to the commission the five sets of the Eevised Statutes requested by the relator, as well as five copies of the session acts for. the years 1911 and 1913, and to that extent the peremptory writ of mandamus should be issued ; and it is so ordered.

II. The second proposition previously mentioned for determination, namely, was it the ctuty of the Secretary of State, to furmsh the Commission with stationery, etc., is without merit.

This question is governed by sections 11 and 15, page 563, Laws 1913.

The first section provides that all books and stationery needed for the use of the Commission shall be paid for in the same manner as other expenses thereof are paid for and section 15 of the act provides that all salaries and expenses of the Commission shall be paid for out of the funds provided for by that act; and section 41, page 18 of the Laws of 1913, appropriates $150,000, to pay the contingent expenses- of the Commission, including printing and office supplies.

Prom reading these statutes it is perfectly clear to our minds that it is the duty of the Commission to pay for its printing, books, records and stationery out of its own funds, appropriated by the Legislature for that purpose, and not that of the Secretary of State to pay for the same out of the meagre $12,000, appropriated for all the other departments of State.

This conclusion is not changed by the fact that the act creating the Public Service Commission provides that wherever the words “Railroad and Warehouse Commissioners, ’ ’ etc., appear in the laws of the State, the words “Public Service Commission” shall be substituted therefor, for the reason that the clear intention of the Legislature was to confer upon the latter the powers and duties possessed and exercised by the former, and which was thereby abolished, and not to make an appropriation to pay for the stationery to be used by the Public Service Commission. The latter is true for two reasons: First, because the sections previously mentioned expressly make appropriations for all the expenses of the Public Service Commission, including stationery; and, second, because the acts of the Legislature) appropriating funds to defray the expenses of the State government are not permanent laws, existing until subsequently repealed, but expire by limitations, as it were, every two years, when the Legislature makes new appropriations.

Consequently, there being nothing contained in the Laws of 1913 providing for the payment of stationery for the Railroad and Warehouse Commissioners, the words “Public Service Commission” cannot for that reason be substituted therefor. In other words, the former commission having been abolished, there was no occasion for the Legislature to make appropriation for the payment of its stationery; therefore, the latter could not succeed to or be substituted to the rights of the former in that regard.

We are, therefore, of the opinion that the writ in so far as the stationery is concerned should he denied; and it is so ordered.

All concur, except Paris, J., who concurs in all that is stated, hut is dubitcmte as to the result.


author: WALKER, J.

text:
    THE STATE ex rel. W. B. FLOWERS v. MOREHEAD et al., Judges of County Court of Linn County.
    In Banc,
    April 2, 1914.
    1. COUNTY HIGHWAY BOARD: Three Appointed Members and Engineer Ex Officio. Under Seo. 1, Laws 1913, p. 665, the county highway board consists of three members appointed by the county court, and the highway engineer, if one has been or is thereafter appointed, becomes by virtue of his office a member of the board. So that where the county court had previously appointed a highway engineer for a term of one year, it was thereafter within the year authorized to appoint three other members of the county highway board, of which the engineer by virtue of the statute became an ex oflicio member.
    2. PUBLIC OFFICER: Member of County Highway Board. A public office is a special trust or charge created by law. One clothed with the powers, exercising the functions and receiving the emoluments of a public office, is a public officer. Since the act creating the county highway board states the term of a member thereof and definitely defines its duties, one who has been appointed a member of the board, upon qualifying, becomes a public officer.
    3. -: - — : How Determined: No Fees, ete. 'in determining whether a certain position is a public office, the functions that the appointee is required to perform are determinative; and the fact that no fees or salary is annexed thereto, and that it is only honorary and exists only for the public good, is not material.
    4. -: -: Removal. The county court cannot remove a. member of the county highway board on the mistaken ground that it was authorized by law to appoint only two members instead of three. There being no particular statute providing for the removal of members of the board, they can be removed only for the reasons for which the statutes (Secs. 10204 et seq, R. S. 1909) authorize the removal of county, town or township officers, to which statutory classes they may be considered as belonging, namely, for dereliction of or wilful refusal to perform official duty, upon proceedings begun and tried in the circuit court, after notice given and an opportunity to be heard in their own behalf.
    5. -: -: -: Certiorari: Right to Writ. An attempted removal of a member of the county highway board by the county court is an act judicial in its nature, and no right of appeal or writ of error or other remedy is provided by law for reviewing its action, nor do the statutes or Constitution invest the county court with power to remove a public officer. Therefore, both because a member of the county highway board who has been removed hy the county court has no remedy by appeal, etc., and because the court has no jurisdiction in such matters, the wiit of certiorari is appropriate for the determination of the legality of the court’s action.

      Certiorari.

    Record quashed.

      C. C. Bigger and O. F. Libby for relator.
    (1) The county court acted within the scope of its authority when it appointed Trumho, Dick and Flowers the county highway board April 23, 1913, and thereafter such persons constituted said board and could not be removed from their office and appointment so made and entered of record by an order of the county court made at its subsequent May adjourned term on June 2, 1913, as the authority of the court to alter, chang'e or set aside its orders made at its February term of the county court ceased when the term ended. Ashby v. Glasgow, 7 Mo. 320; Saxton v. Surth, 50 Mo. 490; Hill v. St. Louis, 20 Mo. 584; Freeman on Judgments, sec. 96; Mason v. Warner, 22 Mo. App. 577. (2) Section 1 of the act of the Legislature, creating county highway boards, in plain and unambiguous language, states that said boards shall consist of three members, who shall be appointed by the county court. The proviso contained in said section adds to said board of three the county highway engineer. There is nothing in the language contained in this section -to indicate that the Legislature meant to say that the county court should appoint two members of the highway board, in counties that have a highway engineer. Many of the counties of the State have no highway engineer, but may have at any time hereafter. If 'the county court of those -counties appoint a highway board • consisting of three members, as the law says they shall do, and thereafter a highway engineer be appointed for such counties, he at once becomes ex-officio a member of the board. Then by what process could the board be reduced to three members? The better construction would be that the Legislature meant that the county court should appoint three members of the county highway board, and that these three, who hold their offices for two years, together with the highway engineer, who is appointed for only one year in all counties which have or may hereafter have that official, shall constitute such board. This construction will give full force and effect to all the provisions of the law, and avoid all doubt and confusion. The rules of construction of a statute áre well settled that the courts will adopt that construction which will give force and effect to all the words of a statute and avoid that construction which will result in confusion and absurd and perplexing situations. Bank v. Ripley, 161 Mo. 126; Sutherland on Statutory Construction, sec. 323; State ex rel. v. Garrett, 76 Mo. App. 295 ;• McFarland v. Railroad, 94 Mo. App. 336; State ex rel. v. Wilder, 206 Mo. 541; 36 Cyc. 1114.

      A. W. Mullins for respondents.
    The first section of the act approved April 17, 1913, referred to in the statement, provides that: a county highway hoard in each and every county in this State consisting of three members is created. The members of said highway board to be appointed by the county court, with a proviso, that in counties that have or hereafter shall have a county highway engineer, he shall ex-officio be a member of said board. As the county highway board shall consist of three members, only, and as Black, the county highway engineer, by virtue of his office, as such, is a member of the highway board, therefore the county court was without authority to appoint three members of the highway board, but was limited to the appointment of two members thereof, who, acting with the county highway engineer, would constitute the county highway board. County courts are creatures of the statutes and whatever authority they exercise must be expressly given them by the statute. The.county court having exceeded its authority in appointing three members of the county highway board instead of two only, its order made April 23, 1913, appointing three members was unauthorized, illegal and void. And the formal order of the court made June 2, 1913, rescinding such illegal and unauthorized order, was proper. The county highway board as now appointed and organized is legal and proper and the said Flowers is not a member thereof. Saline County v. Wilson, 61 Mo. 237; Jefferson County v. Cowan, 54 Mo. 234; Butler v. Sullivan County, 105 Mo. 630; Sturgeon v. Hampton, 88 Mo. '203; Land Co. v. Quinn, 172 Mo. 563.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, amici curiae.

   WALKER, J.

— Certiorari to require respondents, the judges and the clerk of the county court of Linn county, to certify to the Supreme Court the record of the proceedings of said county court in the appointment and removal of relator as a member of the highway board of said county.

Under the authority of an act of the General Assembly approved April 17, 1913 (Laws 1913, p. 665), the county court of Linn county at an adjourned term held on the 23rd day of April, 1913, appointed Prank Dick, P. A. Trumbo and the relator, W. B. Flowers, as members of a county highway board for a term of two years from the date of their appointment. At its regular February term in 1913, said county court had, under the authority of sections 10551 et seq., Revised Statutes 1909, appointed one J. M. Black as county highway engineer for a term of one year, who at the time of the adoption of the Act of 1913, supra, had qualified and entered upon the discharge of his official duties. Upon the adoption of the Act of 1913, the connty highway engineer became by its terms, upon the creation of said county highway board, an ex-officio member of same.

Upon the appointment of the three members of said board by the connty court,, they met in compliance with section 3 of said act, and, in conjunction with the highway engineer, organized by the election of P. A. Trumbo as president, and J. M. Black as secretary of said board. At an adjourned term of the connty court held June 2, 1913, the following orders were made and entered of record:

“It appearing to the court that the appointment of Frank Dick, F. A. Trumbo and W. B. Flowers as members of the connty highway board as made by the court on the 23rd day of April, 1913, was illegal and without warrant of law the said appointment is this day ordered revoked.
“It is ordered by the court that Frank Dick and F. A. Trumbo be and are hereby appointed members of the county highway commission and that they be commissioned for a term of two years from this date. ’'

On July 16,1913, relator petitioned this court, setting forth the facts above stated, and asking the granting of a writ of certiorari directed to respondents, requiring them to certify a full record of their proceedings in this matter to this court, that upon said record it might be determined whether the order entered of record in the county court, removing relator from said highway board, should not be quashed and for naught held.

I. The Highway Board. Section 1 of said act creating the board and conferring the power of appointment upon the county court is as follows:

“Section 1. County highway board to be appointed — term.—There is hereby created a county highway board in each and every county in this State which shall be composed of three members. Said members of the county highway board shall be appointed as follows: Three members to be appointed by the county court of said county; the members of said board shall hold their offices for a term of two years from the date of their appointment, and they shall serve without compensation: Provided, that in counties that, have or may hereafter have a county highway engineer, he shall' ex-officio be a member of said board: Provided further, that in counties now having a population of more than seventy-five thousand inhabitants the county highway board shall be composed of the three members, of the county court.” [Laws 1913, p. 665.]

Words are sometimes so fittingly used, even in legislative enactments, that an attempted explanation of same tends to obscure rather than clarify their meaning. The act in question is illustrative of this truth.

The terms of the statute are unequivocal; the county highway board is to consist of three members to be appointed by the county court, who are to hold their offices for terms of two years respectively from the date of their appointment; and in addition thereto in counties in which a highway engineer has been appointed under the authority of section 10551, supra, such engineer upon the appointment of such board, becomes a member of same, not by appointment thereto by the court, but by virtue of his office as engineer.. If words were needed to render more explicit the meaning of said statute, they are to be found in the concluding provision of section 1, supra, which prescribes that “in counties now having a population of more than 75,000 inhabitants the county highway board shall be-composed of the three members of the county court.”' In view of the preceding provision in regard to the ex-officio membership in such boards of the highway engineer, it will scarcely be contended that said board in such counties is not comprised of the three judges of the county court and the highway engineer, where-the latter has been appointed.

A construction which would reduce the number of the members of said board in counties of 75,000 inhabitants or less, in regard to which the same general words are used as to the numerical constitution of the-board, as in counties of more than 75,000 inhabitants, would violate one of the elementáis of interpretation in that it would authorize the interpolation of words to define the meaning of a statute otherwise clear and. unambiguous.

We are of the opinion, therefore, that such county highway boards as are authorized by the act in question, shall, in all counties, consist of three members, to-be appointed by the county court, and that the highway engineer, if there be one then or thereafter appointed, will become, by virtue of his office, a member’ of such board. From which it follows that the appointment of relator as a member of such board was-authorized.

II. Member of Board, Public Officer. It is not inappropriate to inquire whether an appointee of a county highway board is a public officer within the meaning of that term as frequently judicially defined; if so, then the removal of the appointee is governed by the rules in regard to the removal -of officials of this class.

A public office is defined to be a special trust or charge created by law. [U. S. v. Maurice (2 Brock), 96 Fed. Cas. No. 15747; State ex rel. v. Shannon, 133 Mo. 139, 164.] In State ex rel. v. May, 106 Mo. 488, 505, the office of superintendent of streets of a city, filled by appointment of the mayor, was held to be a public office. In State ex rel. v. McKee, 69 Mo. 504, 508, a like ruling was made in regard to the position of constable. In State v. Dierberger, 90 Mo. 369, 375, a like classification was made in regard to the position of deputy constable and in State ex rel. v. Valle, 41 Mo. 29, it was similarly held in regard to the office of water commissioner in the city of St. Louis. In Ex parte Lucas, 160 Mo. 218, while it is not expressly so decided, the reasoning of the opinion justifies the conclusion that a membership in the board of examiners for barbers, authorized under the state law, constitutes a public office.

Other illustrations might be added from our own reports, but the foregoing will suffice to determine what is meant by the term public office as used in the statute in question. In short, one clothed with the powers, exercising the functions and receiving the emoluments of a public office-, is a public officer. [State ex rel. v. Bus, 135 Mo. 325, 355; 29 Cyc. 1364.] In the Bus case, the distinction is clearly made between what is meant by a “State officer” and an “officer under the State,” a distinction which the court failed to make in State ex rel. v. Dillon. 90 Mo. 229, and in State ex rel. v. Spencer, 91 Mo. 206.

Under the express statute, therefore, creating the position of a member of the highway board and in the light of the reasons stated in the cases above cited, an appointee to this position, upon qualifying, becomes a public officer, the act of his. creation not only stating his term but definitely defining his duties. [Secs. 4 to 9, both inclusive, Laws 1913, p. 666.] It must be borne in mind in determining the character of this position, that it is the functions the appointee is required to perform, that determines the character of his office, and it is not material to this characterization that no salary or fees are annexed thereto, and that the position is merely honorary and exists only for the public good. [Clark v. Stanley, 66 N. C. 59, 67; Throop on Public Officers, sec. 3, p. 4.] It is provided in the Constitution (Art. 14, sec. 7, Constitution) that “the General Assembly shall, in addition to other penalties, provide for the removal from office of county, city, town and township officers, on conviction of wilful, corrupt- or fraudulent violation or neglect of official duty;” in construing this section this court has held that the Legislature is not limited in enacting statutes of removals to the acts specified in the Constitution, but it may make such reasonable and proper provisions regulating same as may seem just. [State v. Boyd, 196 Mo. l. c. 59, 66; State ex rel. v. Sheppard, 192 Mo. 497, 506; Manker v. Faulhaber, 94 Mo. 430, 438.]

No particular statutory method has been provided, however, for the removal of members of county highway boards, and a reference to the general statute in regard to the removal of county, town and township officers (Sec. 10204 et seq., R. S. 1909) is necessary to determine where the authority lies and what facts will sustain such a proceeding. Without literally quoting the general statute it will suffice to say that while broader than the constitutional provision (Sec. 7, Art. 14, supra) it limits the causes of removal to dereliction of or willful refusal to perform official duty, and requires the proceedings to be commenced and heard in the circuit court.

In the absence, therefore, of particular statutes, the method prescribed and the reasons assigned in section 10204 et seq., supra, are the limits of authority for the removal of members of any of the classes of officers therein specified. Members of county highway boards being public officers are properly designated as one of such statutory classes, and, therefore, subject to the provisions of the general statute in regard to removal. Their terms are definitely defined by law, and their duties are all of a public nature, and, while the statute is silent in regard to the subject, their removal will not be justified unless in each instance notice of proceedings therefor is given them, and they are afforded an opportunity to be heard in their own behalf (State ex rel. v. Maroney, 191 Mo. 531); or, in other words, as elaborately and learnedly discussed in State ex rel. v. Sheppard, 192 Mo. 497, they cannot be deprived of their offices without resort to the forms of the law.

There is no pretense that the relator was removed for other cause than that the county court deemed his appointment unauthorized in the first instance on the theory that the court’s power of appointment was limited to two members who with the highway engineer would constitute said board. Relator’s removal, therefore, under the circumstances, was without statutory sanction, and unauthorized.

III. Certiorari: Relative to relator’s right to the writ. No right of appeal, writ of error or other remedy is provided by law for reviewing the action of a county court in cases of this character; the attempted removal of relator was an act judicial in its nature (State ex rel. v. Knott, 207 Mo. 167, 176; In Matter of Saline County Subscription, 45 Mo. l. c. 53); in the absence of a particular statute and in ignoring the general statute, the county court’s action was beyond its jurisdiction. [State ex rel. v. Johnson, 138 Mo. App. l. c. 313.] County courts, except that the authority for their creation is declared by the Constitution (Sec. 1, art. 6) and they are therein authorized to transact county business (See. 36, art. 6) are purely of legislative creation and derive tbeir powers from statutory enactments; in tbe absence, therefore, of such authority they are powerless to act, or without jurisdiction. [Brown on Juris. (2 Ed.), sec. 13, p. 60, Sec. 20b, p. 106.] Either of these reasons is sufficient to render certiorari an appropriate remedy for the determination of the legality-of the county court’s action.

The absence of authority for the removal of relator renders a discussion of the question as to the county court’s power to rescind an order at a term subsequent to that of its entry, unnecessary.

For the reasons stated the order of the county court rescinding its appointment of relator and removing him from office should be quashed, and it is so ordered.

All concur.