author: BLAIR, J. GRAVES, J.

text:
    THE STATE ex rel. MARY B. CASE et al. v. THOMAS J. SEEHORN, Judge of Circuit Court of Jackson County.
    In Banc,
    July 12, 1920.
    1. MANDAMUS: Refusal to Take Jurisdiction: Remedy: Appeal, It is a general rule that mandamus will not lie if there exists a specific and adequate remedy by appeal or writ of error. But if the circuit court did not dismiss the cause, but merely refused to proceed with it on the ground that it was without jurisdiction to do so, and entered no judgment from which an appeal will lie, the rule is not applicable, and mandamus will lie.
    2. -: -: Inadequacy of Remedy: Superintending Control. The writ.of mandamus will go in many cases despite the fact that the circuit court has acted, if such court, on misapprehension of the law, has declined to take jurisdiction. The fact that the statute (Sec. 114, Laws 1913, p. 644) provides for an appeal after' judg- . ment in a proceeding to review an order of the Public Service Commission does not destroy the superintending control of the Supreme Court.
    3. JURISDICTION: Review of Order of Public Service Commission: Constitutional Objections. The statute which provides that writs to review orders of the Public Service Commission may be sued out of “the circuit court of the county where the hearing was held or in which the commission has its principal office” (Sec. Ill, Laws 1913, p. 641) is not in conflict with those provisions of Section 53 of Article IV of the Constitution which declare that the General Assembly shall not pass any local or special law “regulating the practice or jurisdiction of courts” or “legalizing the unauthorized or invalid acts of any officer” and that “in all other eases where a general law can be made applicable, no local or special law shall be enacted.”
    4. -: —--: -: Jurisdiction Determined by Commission. The Public Service Act of 1913 vests all circuit courts with potential jurisdiction to review orders of the Public Service Commission, and gives to the commission power to fix the time and place of hearings, and includes all parties and all courts in the sense that any circuit court may take jurisdiction upon the stated condition that the hearing was held in the county, and the fact that the statute in conferring jurisdiction on the circuit court where the hearing was held localizes the jurisdiction and thereby vests the commission with power to determine the jurisdiction does not make it a special law in the constitutional sense; for the condition that jurisdiction shall depend upon a hearing having been held in the county, is not an unreasonable one, and this is the test.
    5. -: -> — : Place of Hearing: Presumption. The presumption is that the Public Service Commission in fixing a place of hearing will exercise a sound and reasonable discretion and will keep in mind the convenience of the parties and witnesses; and the same considerations form a proper basis for fixing the venue in the proceedings by writ of review in the circuit court.
    6. -: -: -: Question of Law: Mandamus. The fact that the circuit court held that the place of hearing before the Public Service Commission was not in its county does not conclude the question whether mandamus will lie to compel it to take jurisdiction, for where the facts are undisputed the question becomes one of law, and if they establish legal error mandamus will go.
    7. -: Place of Hearing: In Different Counties. Where the hearing before the Public Service Commission for the increase of the rates of a public service corporation located in Kansas City was begun in Jefferson City and a temporary order providing for a surcharge rate until a full hearing could be had was there made, and later the great bulk of the testimony, including that relating to the valuation of the company’s properties, was heard by two commissioners in Kansas City, and the argument was made before and the final order was made by the whole commission at ■ Jefferson City, the place of hearing, under Section 111, Laws 1913, page 641, was in Kansas City, and the Circuit Court of Jackson County had jurisdiction of the writ to review said final order. When the commission has formally set a hearing in any county and appears and takes evidence in the case and is authorized and ready to hear and does hear the parties and their counsel, the circuit court of said county has jurisdiction to issue and entertain a writ of review.

      Held, by GRAVES, J., dissenting, that the final hearing, which culminated in the order which the circuit court is asked to review, was in Jefferson City, and the jurisdiction to review is in Cole County, and not in Jackson County.
    8. HEARING: Definition. The term “hearing” has no rigid definition applicable .to it in all its uses. Its meaning is to be determined from the character of its use in the statute. In the Public Service Act it is applied to proceedings which do not culminate in a judgment, since the commission does not .render judgments in the technical sense. Its principal function as a legislative or administrative agency is to ascertain facts and thereupon declare the applicable rate, regulation or practice; and its hearings include those sittings at which the evidence is produced and heard. Those parts of the act which provide that the commission, in proceedings for the valuation of properties, may “cause a hearing or hearings to be held at such time or times and place or places as the commission may designate” and others of its provisiohs, demonstrate that the commission is not confined to a single hearing or a single county in proceedings before it.
    9. JURISDICTION: Review of Order of Public Service Commission: Place of Hearing: Former Adjudications. The uniform construction of the Public Service Act by the commission, both in setting hearings and in conceding jurisdiction, that the place of hearing is the county in which it has formally set the tipie and place and has appeared and heard witnesses and their counsel on the matters at issue, and the uniform practice in both circuit courts and the Supreme Court in accepting jurisdiction, have much weight in construing the act on the question of jurisdiction of the circuit court to. entertain a writ of review of the commission’s order.
    10. -: -: --: The Word “The”: Legislative Construction. The word “the” in the expression “the. hearing” used in Section 111 of the Public Service Act of 1913 has been construed by the Legislature itself, in the act, in authorizing hearings in more than one county, and it will not therefore be given a definitive •sense.
    Mandamus.
    Writ issued.

      Scarritt, Jónes, Seddon & North and Lathrop, Morrow, Fo& & Moore for relators.
    (1) The Jackson County Circuit Court had jurisdicton of the petition for review herein, (a) Section 127 of the Public Service Act requires that “the provisions of this act shall be 'liberally construed with a view to the public welfare, efficient facilities and substantial justice between patrons and public utilities. ’ ’ This court has, on several occasions, pointed out that this act is highly remedial and should be liberally construed. State ex rel. v. K. C. Gas Co., 254 Mo. 535; State ex rel. v. Public Service Comm., 259 Mo. 713; State ex rel. v. Public Service Comm., 275 Mo. 201. Having in mind this rule of construction, we. seek the intent of the Legislature in providing that an application for a writ of review may be made “to the circuit court of the county where the hearing was held or in which the commission has its principal office.” (2) It is perfectly apparent that the Legislature desired to avoid the necessity of bringing all court actions to review orders of the commission in a single circuit court. It is in fact noteworthy that the provision for going into the circuit court of any county where the matter involved was heárd by the commission is placed first and given precedence over the right to go into the circuit court of the county where the commission has its principal office. (3) The act provides for and empowérs the commission to go from place to place over the State and hold hearings, so it is the evident intention of the act to so provide that it is possible for matters involving public utilities and their patrons to be heard and considered both by the commission and by the court at the place where the parties litigant reside, and the subject-matter of the investigation is situated. To prevent this evident intent of the Legislature from being frustrated, the words, “the hearing” should not be taken too strictly, but should be construed to mean “a hearing” or “any hearing,” or at least the important or conspicuous hearing. (4) The act contemplates that many hearings, even in a single controversy, may be held, and that they may be held at different places in the State, to suit the convenience of the parties to the controversy as well as the commission. Section 109 refers expressly to “any hearing by the commission or a commissioner.” The very nature of the investigation required to be made by the commission, the number of parties to be heard and the whole spirit of the act contemplate that the commission shall travel throughout the State and have hearings amongst the people and surroundings to be affected. And this is true, although Section 11 requires the principal office of the commission to be at Jefferson City and the act requires the orders and decisions of the commission to be recorded at its principal office. (5) It is entirely possible that the commission might hold a hearing in six or-more counties of the State concerning a single controversy. It might be that each of these several hearings would be of equal importance, so that no one could technically be denominated “the hearing” of the matter. It is not reasonable to suppose that the Legislature intended that in such a case the interested parties could not go into the circuit court of any of the counties where a hearing was had for a review of the decision of the commission, but were restricted to the circuit court of the county, where the commission had its principal office. Noyes v. Aid Society, 70 N. Y. 481. (6) It is a well established rule that the interpretation or construction placed on a law by those whose duty it is to administer it, will be given great, if not controlling, weight by the courts. Ross v. Ry. Co., Ill Mo. 18; State ex rel. v. Severance, 49 Mo. 404; U. S. v. Ala. Gr. S. R. 'Co., 142 U. S. 615; Pennoyer v. McConnaughy, 140 U. S. 1. The Public Service Commission has repeatedly acted upon the construction of the act which would give to the circuit court of the county where a hearing, was had, jurisdiction to review the commission’s orders.. In this very case the commission filed their answer and return and entered their appearance in the petition for review in the Circuit Court of Jackson County, without questioning the jurisdiction of that court. The records of this court show that it has been quite customary for writs of review to be entertained and heard by circuit courts in the county where a hearing has been had by the commission. Mo. Southern Ry. Co. v. Public Service Com., 214 S. W. 379; State ex rel. Pub. Serv. Com. v. Mo. Southern Ry. Co., 214 S. W. 381; State ex rel. Danciger v. Pub. Serv. Com., 275 Mo. 483, 205 S..W. 42; State ex rel. Wabash Rd. v. Pub. Serv. Com., 271 Mo. 155; State ex- rel. M. K. & T. Ry. v. Pub. Serv. Com., 271 Mo. 270; State ex rel. United Rys. Co. v. Pub. Serv. Com., 270 Mo. 429; State ex reí. Rds. v. Publ. Serv. Com., 269 Mo. 63. ‘ (7) Any question as to the jurisdiction of the Jackson County Circuit Court was waived when the Commission filed its answer and return to the writ of review.' Commonwealth v. McAllister, 1 Watts (Pa.) 307;. State ex reí. Reider v. Moniteau Co. Ct., 45 Mo. App. 387; State v. Schneider, 47 Mo. App. 669; State ex rel. v. Sonders, 69 Mo. App. 474; Tod v. Chrisman, 123 Iowa, 693; Chambers v. Lewis, 9 Iowa, 583; Baker v. Superior Court, 71 Cal. 583; State ex rel. v: Weinfurther, 66 N. W. 702; Mac Fall v. Dover, 70 N. J. L. 521; N. C. Corp. Comm. v. Southern Riy. Co., 151 N. C. 447; Specht v. Central Passenger Ry. Co., 68 Atl. 788.

      John H, Lucas for defendant.
    (1) A writ of mandamus will not lie in the instant case. The question of fact was involved, namely, the county in which the hearing was had. Where'facts are disputed the lower court determines its jurisdiction on the facts before it. State ex rel. v. Mills, 231 Mo. 500 ;• i Coleman v. Dalton, 71 Mo. App. 24; State ex rel. v. Sea, 23 Mo. App. 623; State ex rel. v. Johnson, 266 Mo. 671; State ex rel. v. Jones, 155 Mo. 576; State ex rel. -y.Smith, 104 Mo. 424; Holland v. Railroad Co.; .134 Mo. - 479; Smith v. Perryman, 272 Mo. 375; Coley. Ricketts,-.’ Ill Mo. App. 105; Hammond v. Darlington, 109 Mo.> App. 333. In the instant case the statute itself provides the method of procedure by way of appeal. Laws 1913, p. 644, sec. 14. • State ex rel. Hillar v. Thornhill, 174 Mo. App. 369; State ex rel. v.;Life Ins. Co., 169 Mo. App. 354; State ex rel. v. Dreyer, 183 Mo. App. 463'; State ex rel. v. Hudson, 226 Mo. 239; State ex. rel. v. Spring Electric Co., 232 Mo. 130; State ex rel. v. Calhoun, 211 S. W. 111. (2) The Act of 1913, p. 641, relating to jurisdiction of the court is void as to the' Circuit Court of Jackson County, in violation of • the Constitution, the same being both special and ■ local. Sec. 53, Art. 4, subdivision 17, subdivision 53; Henderson v. Koenig, 168 Mo. 356; State v. Anslinger, 171 Mo. 600; -State ex rel. v, Borden, 164 Mo. 221; State ex rel. v. Turner, 210 Mo. 83; State ex rel. Barker v. Southern, 265 Mo. 275. (3) The respondent correctly construed the statute. To -save the same from unconstitutionality, jurisdiction, is held -to he ■ in the Circuit Court of Cole County. St. Louis y. Mo. Pacific Ry. Co., 262 Mo. 720; State ex rel. v. Gordon, 266 Mo. 394; State ex rel. v. Farmer, 271 Mo. 306. (a) A general clause will yield to a special one where there is conflict. State ex rel. v. St. Louis, 241 Mo. 231; Hershe v. Roach, 258 Mo. 541;- Hershe v. Revelle, 258 Mo. 568; Wilkinson v. Thom, 194 Mo. App. 173. (b) In the instant case, the evidence having established the fact that the hearing, both in fact and in law, being in Cole County, the jurisdiction under the Commission Act was properly held to be in the circuit court of that county. Above authorities; State ex rel. v. Flannely, 96 Kan. 380; Cole v. Rickett, 111 Mo. App. 105; Hammond v. Darlington, 109 Mo. App. 333,.; 2 Bouvier’s Law Dictionary (3 Rev.), p. 429 ; 25 R. C. L. secs. 207, 211, 213, 953, 956, 957; 7 R. C. L. secs. 61, 1032.
   BLAIR, J.

This is a proceeding by mandamus to compel Hon. Thomas J. Seehorn, Judge of the Jackson County Circuit Court, to take jurisdiction and proceed to hear and determine the issues made on writ of re-, view sued out against the Public Service Commission of Missouri. Relators are the petitioners who secured the issuance of the writ of review.

The Kansas City Light, Heat & Power Company is a corporation engaged in furnishing electrical energy and ■ steam heat to the public in Kansas City, Missouri. In 1918 this company applied to the Public Service Commission for an increase in rates and filed the proposed schedules. Kansas City filed a protest. On June 12, 1918, the commission issued its notice that it had “set the above entitled cause for hearing’ before the commission on Monday, June 24, 1918, at the office of the commission in Jefferson City, Missouri.” June 14, 1918, the commission made an order staying the proposed rates for a period ending October 28, 1918. June 22, 1918, many consumers, including relators, filed their protest against the proposed rates. June 24, 1918, the Light Company moved for- a complete valuation of its property and “accounting examination of books.” June 24, 1918, a hearing was had at Jefferson City before Commissioners Busby, Bean, Blair and Simpson, “at which testimony of certain witnesses offered by the Kansas City Light, Heat & Power Company was heard. But no evidence was then offered on behalf of any other party to the said proceeding because it was not convenient to do so and because of the assurance then given by the said commission that a temporary order only was contemplated in the near future and that at a later date a full hearing would be had, probably at Kansas City. ” June 25, 1918, the Public Service Commission gave'notice that it had set the cause “for further argument and introduction of further testimony, July 3, 1918, at 9 a. m. at the office of the commission, in Jefferson City, Missouri.’.’ On that date further argument was had, and the Light Company-offered two additional witnesses “solely in regard to whether the Kansas City Light, Heat & Power Company should be granted a temporary surcharge for' electric current pending further hearing and determination of the case.” Thereafter, August -13, 1918, the commission entered its order permitting the Light Company, until further order of the commission, to collect charges for electrical energy in accordance with previously established rates, plus a surcharge- of ten per cent; prohibiting the collection, for steam heating service, of any sums in excess of previously established rates, ‘ ‘ until further -order by this commission; ’ ’ directing the commission’s engineering and accounting departments “to bring the valuation and audit of the combined-properties and of the electric department and heating department down to date;” “that the commission fully retain jurisdiction of the parties and subject-matter of the cause upon the evidence as may be offered for the purpose of making any modification of this order, or supplementary orders herein, at any time it may deem just and proper;” that the order should take effect September 1, 1918, and a copy be served on all parties affected.

No motion for rehearing was filed or writ of review sued out.

May 26, 1919, the commission issued notice that it had set “the above entitled cause for further hearing before the commission on Tuesday, June 10, 1919, at 10 o’clock a. m., at the Baltimore Hotel, Kansas City, Missouri, at which time and place you will be given an opportunity to be heard. ”

The record returned by the commission pursuant to the writ of review set out the foregoing notice and then recites:

“And thereafter, on the 10th, 11th and 12th days of June, 1919, before commissioners Busby and Fiad, the following testimony was duly taken down by a reporter: ‘State of Missouri, Public Service Commission. At a hearing held by the Public Service Commission at Kansas City, Missouri, on the tenth, eleventh and twelfth days of June, 1919. Present: William G. Busby, Chairman, Edwárd Fiad, commissioners. In the matter of the application of. the Kansas City Light, Heat & Power Company for increase in rates for electrical current and steam heat. ’ ’

Then follows the names of intervenors, including relators and the appearances. Then:

“Chairman Busby: Gentlemen, we will call this case, I will ask the attorneys present to let the reporter have your names and the parties whom you represent. Very well, gentlemen, as I understand the ease it involves lighting and heating and power rates. I presume the company has the .'laboring oar.”

Thereafter the .record returned under the writ of review set fqrth all the evidence* taken by the commission at that hearing.

“On the 10th, 11th and 12th days'of June, 1919, pursuant to the said notice, a hearing was held at Kansas City, Missouri, before said Public Service Commission, Commissioners Busby and Fiad sitting; the testimony of a large number of witnesses offered by Kansas City Light & Power Company, by the City of Kansas City, and by the consumers of Kansas City Light & Power Company, including these relators, and by the Public Service Commission, was introduced and heard. The transcript of the evidence of said witnesses, exclusive of exhibits, covers 385 typewritten pages. At this hearing, in addition to the evidence of witnesses just referred to, the reports of the engineers and the accountants of the commission, covering the valuation of the property of Kansas City Light & Power Company, and the examination of its books and records, were introduced in evidence and heard; and also full and complete reports presented by experts of the Kansas City Light & Power Company, and by experts employed by the consumers and by Kansas City, were offered and heard. These reports were voluminous.”

June 14, 1919, the commission issued notice that June 14, 1919, it had set “the above entitled cause for final hearing and argument on Friday, the 27th day of June, 1919, at 10 o’clock a. m., at Jefferson City, Missouri, at which time and place you will be given an opportunity to be heard. On June 27, 1919, the company offered two additional witnesses and one of the commission’s accountants was heard. The transcript of this testimony covered 43 pages.. The parties were then given time to file briefs, and the argument of the matter was ,set for July 14, 1919, at Jefferson City, Missouri.” At the time and place named the parties presented their arguments.

On September 27, 1919, the commission filed its report and entered its order authorizing the Light Company to charge increased rates for electricity and steam heat, effective October 20, -1919. In its report the commission states that “hearings” were held June 24 and July 3, 1918, and a temporary order made August 13, 1918, and that “further hearings were held by this commission at Kansas City on June 10, 11 and 12, and at Jefferson City on June 27, 1919, at which evidence was introduced by all parties in this case and by the commission engineers and accountants. This ease was submitted for final decision on the evidence taken and the briefs of counsel for the company and interveners.” Motions for rehearing were filed October 18, 1919, by Kansas City and the interveners, and the motions were set down for argument on October 30, 1919. On October 18, the final order was modified. On October 30, 1919, the arguments on the motions for rehearing were heard, and the motions were overruled on November 13, 1919.

November 29, 1919, relators applied to the Circuit Court of Jackson County for a writ of review, and on the same day the writ was issued. December 15, 1919, the commission, in obedience to the writ, transmitted to the Circuit Court of Jackson County “a full, true and complete certified copy of the record, and all proceedings and testimony, together with all the original exhibits in the matter of the application of the Kansas City Light, Heat & Power Company for increase in rates for ’electrical- current and steam heat.”

On the same day the Light Company, by leave of court, filed its plea to the jurisdiction of the Jackson County Circuit Court, alleging (1) that the act attempting to confer jurisdiction is void and in violation of subdivisions 17 and 32 of Section 53 of Article IV of the Constitution of Missouri; and (2) that the court had no jurisdiction because the “cause was not heard within the jurisdiction of this court, namely, at Kansas City, but the hearing thereof was at Jefferson City, in the County of Cole, and in the State of Missouri.”

The cause was continued to December 22, 1919, and interveners and counsel for the commission announced they were ready for trial. Thereupon counsel for the Light Company presented the plea to the jurisdiction of the court. Relators moved to strike out this plea because: (1) Relators and the commission had submitted themselves to the jurisdiction of the court and the jurisdiction could “not lawfully be impeached by the Kansas City Light, Heat & Power Company, which is not a party to the above entitled suit;” (2) “the main and conspicuous hearing” was held at Kansas City, as shown “by the answer and return and records of the said commission filed and made a part thereof;” and "(3) “upon the entire answer and return” of the commission, including, their records as returned, the court had jurisdiction. Thereupon the court overruled the motion to strike out the plea to the jurisdiction, and that plea was submitted “upon the answer and return of the Public Service Commission of Missouri, including the record of its proceedings filed with and made a part of said return; and thereupon the court sustained said plea to the jurisdiction of this court in the said cause for want of jurisdiction to hear and determine the said writ of review. ’ ’ Relators excepted and moved the court to proceed with the cause, but it refused to do so.

Relators’ petition (which here stands for the alternative writ, in view of respondent’s consent thereto) alleges that the preceding allegations set out all Ihe record of the commission necessary to a determination of the question of jurisdiction.

The prayer is that the circuit court be compelled to proceed with and hear and determine the cause.

Respondent waives the issuance of the alternative writ and demurs to the petition because, he says: (1) the petition does not state facts sufficient to constitute a cause of action against him; (2) the facts stated do not warrant the issuance of a peremptory writ; and (3) under all the facts stated respondent is without jurisdiction or authority to proceed.

Remed

I. Respondent contends mandamus will not lie because the statute (Sec. 114, Laws 1913, p. 644) provides a remedy by appeal. It is the general rule that manda111118 will not lie if there exists a specific and adequate remedy by appeal or writ of error. [Byrne v. Harbison, 1 Mo. 225; Williams & Wyan v. Judge, 27 Mo. 225; Blecker v. Commissioner, 30 Mo. 111; State ex rel. v. Lubke, 85 Mo. 338; State ex rel. v. Buehler, 90 Mo. l. c. 570; State ex rel. v. Smith, 104 Mo. l. c. 668; State ex rel. v. Smith, 105 Mo. l. c. 9; State ex rel. v. Field, 107 Mo. l. c. 450; State ex rel. v. County Court, 109 Mo. l. c. 252; State ex rel. v. McKee, 150 Mo. l. c. 244; State ex rel. v. Fort, 180 Mo. l. c. 108, 109; State ex rel. v. Thurman, 232 Mo. l. c. 164, 165.] One obstacle to the application of this rule in this case is that the trial court has entered no judgment from which an appeal would lie. It did not dismiss the cause, but merely refused, ab initio, to proceed yfijth it, on the ground that it was without jurisdiction to do so. [State ex rel. v. Laughlin, 75 Mo. 358; State ex rel. v. McElhinney, 246 Mo. 44.] Further, the writ may go in many cases despite the fact the court has acted, if such court has, on misapprehension of a plain rule of law, declined jurisdiction. [State ex rel v. Philips, 97 Mo. l. c. 341 et seq.; State ex rel. v. O’Bryan, 102 Mo. l. c. 259; State ex rel. v. Court, 73 Mo. 560.] The fact that the statute (Sec. 114, supra) provides for an appeal after judgment does not destroy the superintending control of this court.

Speciai Vemie.

II. The statute (Sec. Ill, Laws 1913, p. 641) provides that writs to review orders of the Public Service Commission may be sued out of “the circuit court of the county where the hearing was held or in which the commission has its principal office.” It is argued this provision, in so far as it attempts to confer jurisdiction on a court of the county “where the hearing was held” is in conflict with subdivisions 17 and 32 of Section 53 of Article IV of the State Constitution.

Section 53 provides that “the General Assembly shall not pass any local or special law. . , .

“ (17) Regulating the practice or jurisdiction of . . , courts.

“(32) Legalizing the unauthorized or invalid acts of any officer ... In all other cases where' a general law can be made applicable, no local or special law shall be enacted.”

It is argued that the act “conferring jurisdiction on the circuit court of the county where the hearing is held localizes the jurisdiction and specializes the action; in other words, determines the forum by the act.of the commission in hearing or refusing to hear at any other place than Jefferson City;” and that by striking out the clause thus objected to. a general law will be left which will apply to all cases.

The statute vests all circuit courts with potential jurisdiction. Jurisdiction of a particular court to issue a writ of review in a particular matter is made to depend upon the fact that the hearing was held within its jurisdiction or the commission has its principal office therein. Authority is given the commission (Sec. 107, Laws 1913, pp. 638, 639) to fix the time and place of hearings and give notice thereof. The statute includes all parties and all courts in the sense that all circuit courts may take jurisdiction on stated conditions. The condition that jurisdiction shall depend upon a hearing having been held (the condition complained of) is riot an unreasonable one; and this is the test. [State ex inf. v. Southern, 265 Mo. l. c. 286.] The presumption is that the commission in fixing a place for a hearing will exercise a sound and reasonable discretion and will keep in mind the convenience of the parties and witnesses. The same considerations form a proper basis for fixing the venue in the proceedings by writ of review. Most venue statutes are founded upon some such classification. It does not appear beyond reasonable doubt that the objection made to the act is sound.

o^ifw113 and Pact,

III. Respondent contends that, in any event, the jurisdiction of the circuit court was dependent upon the fact that a hearing was held in Jackson County; that the court determined the fact adversely to relators, and, therefore, mandamus will not lie. The general ru^e s0 read,s- That: rule 'does not apply to this case, because there was no controversy about the facts in .the circuit court, and there-is none here. All the facts were of record there and are conceded here.. The question determined by the circuit court.was whether the commission’s proceedings at Kansas City, there being no dispute about what those proceedings were, constituted such a hearing as to vest Jackson County Circuit Court with jurisdiction to issue a writ of review. As in State ex rel. v. Homer, 249 Mo. 58, the circuit court, upon undisputed facts, determined a pure question of law, and mandamus lies to set it in motion in case it, by reason of legal error in this preliminary matter, refused to proceed. [State ex rel. v. Shackelford, 263 Mo. l. c. 59.] The court’s power to act depends upon special statutory authority and upon a condition precedent fixed by the statute. In such case it could have no jurisdiction save under the condition named in the statute (Blankenship v. Blankenship, 100 S. E. l. c. 540, 541) and cannot act in the absence of evidence tending to prove the existence of the condition. [In re Paulsen’s Estate, 179 Cal. 528; Kansas City v. Commission, 103 Kan. 473.] In this case the question is one of law.

Hearingf

IY. The question determinative of this case is whether the proceedings at Kansas City constituted such a hearing under Section 111, Laws 1913, p. 641, as to confer upon the Circuit Court of Jackson County jurisdiction to issue the writ of review to the Pub-Service Commission. The statute reads that upon stated conditions not in controversy here, “the applicant may apply to the circuit court of the county where the hearing ivas held, . . . for a writ of review.”

To recapitulate: On June 12, 1918, the commission gave notice -that the cause was set “for hearing” at Jefferson City on June 24, 1918. On that date a hearing was had at Jefferson City before four of the commissioners and some evidénce taken on the part of the Light Company and on the part of no others, because the commission assured them “that a temporary order, only, was contemplated in the near future and that at a later date a full hearing would be had, probably at Kansas City.” On June 25th notice was given that the commission had “set the cause for further argument and introduction of further testimony if desired” on July 3, 1918, at Jefferson City. On July 3, 1918, further argument and testimony on the part of the Light Company “solely in regard to whether the Kansas City Light, Heat & Power Company should be granted a temporary surcharge for electric current, pending further hearing and determination of the case, and, if so, in what amount.” August 13, 1918, the temporary order granting the surcharge was entered. Nearly ten months later the commission gave notice that it had set the “cause for further hearing before the commission” on June 10, 1919, at Kansas City. At that, time and place, before Commissioners Busby and Piad, the great bulk of all the testimony upon which the case was subsequently decided, was introduced. It was at this hearr ing that the results’ of the valuation made by the commission’s engineers and accounts were laid before the commission, and the experts employed by the Light Company.and the consumers were also heard, as were other witnesses.

By due notice the commission set the cause “for final hearing and argument” at Jefferson City on June 27, 1919. Two additional witnesses were heard, and the matter was argued and submitted. September 27, 1919, the commission rendered its decision.

Section 12, Laws 1913, page 564, provides that meetings of the commission may be held “at any time or place within the State. Any investigation, inquiry or hearing which the commission has power to take or hold may be undertaken or held by or before any commissioner.' All investigations, inquiries, hearings and decisions of k commissioner shall be and be deemed to be the investigations, inquiries, hearings and decisions of the commission, and every order and decision made by a commissioner, when approved and confirmed by the commission and ordered filed in its office, shall be and be deemed to be the order of the commission.” It follows from this provision that the proceedings at Kansas City were as much the proceedings of the commission as if all the commissioners had their bill present.

Section 45, 46, 69 and 92, Laws 1913, pp. 582, 583, 603 and 626, disclose that the terms “investigation,” “inquiry” and “hearing” are not used as synonyms, and Sections 47, 70, 93 and 105a of the same act show that in the proceeding under examination the commission was engaged in a “hearing” or “hearings” under the act. A complaint had been filed, adversary parties had appeared, and evidence was offered.

Paragraph 2, Section 18 of the act, provides that the commission ‘ ‘ shall conduct a hearing and take testimony relative to any pending legislation with respect to any person, corporation or matter within its jurisdiction, if requested to do so by the Legislature or either branch thereof or by the Governor,” and report its conclusions.

Section 24 provides that: “All hearings before the commission or a commissioner shall be governed by rules to be adopted and prescribed by the commission. And in all investigations, inquiries or hearings the commission or a commissioner shall not be bound by the technical rules of evidence. No formality in any proceeding nor in the manner of taking testimony before the commission or any commissioner shall invalidate any order, decision, •rule or regulation made, approved or confirmed by the commission.”

Section 47 provides that “whenever the commission shall be of opinion, after a hearing had upon its own motion or upon complaint” that the regular rates, regulations, etc., or excursion or .commutation rates, etc., are unjust. or unreasonable, it is required, to order such changes therein as shall be just and reasonable. Provisions of this character are repeated many times in the act.

Sections 48, 70 and 94, applicable here by virtue of Section 105a, provide for a complaint against proposed rate increases. The three sections are almost identical in language. Section 70 reads as follows:

“Power of Commission to. Stay Increased Bates.—

Whenever there shall be filed with the commission by any gas corporation, electrical corporation, water corporation or municipality any schedule stating a new rate or charge, or any new form of contract or agreement, or any new rule, regulation or practice relating to any rate, charge or service or to any general privilege or facility, the commission shall have, and it is hereby given, authority, either upon complaint or upon its own initiative without complaint, at once, and if it so orders without answer or other formal pleading by the interested gas corporation, electrical corporation, water corporation or municipality, but upon reasonable notice, to enter upon a hearing concerning the propriety of such rate, charge, form of contract or agreement, rule, regulation or practice, and pending such hearing and the decision thereon, the commission upon filing with such schedule, and delivering to the gas corporation, electrical corporation, water corporation or municipality affected thereby, a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, form of contract or agreement, rule, regulation or practice, but not for a longer period than one huudved and twenty days beyond the time when such rate, charge, form of contract or agreement, rule, regulation or practice would otherwise go into effect; and after full hearing, whether completed before or after the rate, charge, form of contract or agreement, rule, regulation of practice goes into effect, the commission may make such order in reference to such rate, charge, form of contract or agreement, rule, regulation or practice as wmuld be proper in a proceeding initiated after the rate, charge, form of contract or agreement, rule, regulation or practice had become effective; Provided, that' if any such hearing cannot be concluded within the period of suspension, as above stated, the commission may, in its discretion, extend the time of suspension for a further period not exceeding six months.. At any hearing involving a rate sought tó be increased after the passage of this act,- the burden of proof to show that tne increased rate or proposed increased rate is just .and reasonable shall be upon the gas corporation, electrical corporation, water corporation or municipality, and the commission shall give to the hearing and decision of such questions preference over all other questions pending before it and decide the same as speedily as possible.”

By Sections 60, 78 and 101 (also applicable by virtue of Section 105a) the commission is authorized to ascertain the value of the properties of public service corporations. It is enacted that:

“For the • purpose of ascertaining the matters and things specified in this section, concerning the value of the property of gas corporations, electrical corporations and water corporations, the commission may cause a hearing or hearings to be held at such time or times and place or places as the commission may designate. Before any hearing is had the commission shall give the gas corporation, electrical corporation or water corporation affected thereby at least thirty days’ notice, specifying the time and place of such hearing, and such notice shall be sufficient to authorize the commission to inquire into the matters designated in this section, but this provision shall not prevent the commission from making any preliminary examination or investigation into the matters herein referred to, or from inquiring into such matters in any other investigation or hearing. All gas corporations, electrical corporations and water corporations affected shall be entitled to be heard and to introduce evidence at such hearing or hearings. The commission is empowered to resort to any other source of information available. The evidence introduced at such hearings shall be reduced to writing and certified under the seal of the commission. The commission shall malee and file its findings of fact in writing upon all matters concerning which evidence shall have been introduced before it which in its judgment have bearing on the value of the property of the gas corporation, electrical corporation or water corporation affected. Such findings shall be subject to review by any circuit court of this State in the same manner and within the same time as other orders and decisions of the commission. The findings of the commission so made and filed, when properly-certified under seal of the commission shall be admissible in evidence. . . . The commission may from time to time cause further hearings and investigations to be had for the purpose of making revaluations or■ascertaining the value of any betterments, improvements, additions or extensions made by any gas corporation, electrical -corporation or water corporation subsequent to any prior hearing or investigation, and^may "examine into all matters which may change, modify or affect any finding previously made, and may at such time make findings of fact supplementary to those theretofore made. Such hearings shall be had upon the same notice and be conducted in the same manner, and the findings so made shall have the same force and effect as is provided herein for such original notice, hearing and findings: Provided, that such findings made at such supplemental hearings or investigations shall be considered in connection with and as a part of the original findings except in so far as such supplemental findings shall change or modify the findings made at the original hearing or investigation. ’ ’ °

It is also prescribed that in fixing rates the commission must have “due regard among other things to a reasonable average return upon the capital actually expended, ’ ’ etc. ;

Section 106 provides that “the commission shall fix the time and place when a hearing will be had upon the complaint and shall serve notice thereof. ” '

Section 10S reads as follows:

“At the time fixed for any hearing before the commission of a commissioner, or the time to which the same may have been continued, the complainant and the corporation, person or public utility complained of, and such corporations and persons, as the commission may allow to intervene, shall be entitled to be heard and to introduce evidence. The commission shall issue process .to' enforce the attendance of all necessary witnesses. . v . . A full and complete. record of all proceedings before the commission, or any commissioner on any formal hearing had, and all testimony shall be taken down by •a reporter appointed by the commission, and the parties shall be entitled to be heard in person or by attorney.”

Unless the proceedings of the commission at Kansas City satisfy the statute, in that they constituted a “hearing” under Section 111, supra, the Jackson County Circuit Court had no jurisdiction to issue a writ of review. [State ex rel. Russell v. Public Service Commission, 75 Wash. l. c. 488.] Counsel for respondent contends, in this connection, “it is not written in the Commission Act that an applicant may apply to the circuit court of the County where any part of the hearing was held, hut the language is explicit, ‘where the hearing was held.’ ” Counsel for relators contend that (1) the statute means that if any hearing is held in a county, the circuit court thereof has jurisdiction; ■ (2) if the word “the” is to be held to its strict and definite sense, then “the hearing” of Section 111 is “the main or conspicuous hearing.” Under respondent’s view it would seem that if parts of the proceedings on a complaint occur in more than one county, no court takes jurisdiction hy reason thereof and all such proceedings are reviewable in Cole County only, since the commission has its principal office there. Relators’ view is that if a proceeding like that held in Kansas City is held in any county, then the circuit court of any such county has jurisdiction under Section 111.

The meaning of the word “hearing” in the statute is to be determined from the character of its use in the statute. [Am. Grain Sep. Co. v. Separator Co., 202 Fed. l. c. 205.] . In equity, “hearing” is a term with a well understood content. Technically, it is “the trial of the Vase, including the introduction of evidence, the argument of'the solicitors, and the decree of the chancellor.” [Joseph Dry Goods Co. v. Hecht, 120 Fed. 763, citing 10 Ency. Pl. & Pr. 8; Babcock v. Wolf, 70 Iowa, l. c. 679, citing 1 Bouv. Law Dict. 745.] Such is a final hearing. [Miller v. Tobin, 18 Fed. l. c. 616.] In Merritt v. Village, 8 Hun, l. c. 45, itwasheld that “hearing” as applied to proceedings of village commissioners of assessment, “simply means the receiving of facts and argument thereon for the sake of deciding correctly.” As applied to courts, fhe word is said to he “generally understood as meaning a judicial examination of the issues between the parties, whether of law or of fact.” [Glennon v. Britton, 155 Ill. l. c. 243.] With respect to a,complaint against the apportionment of paving costs, it was said that: “The very essence of a hearing, however, is the right, not simply the privilege, ‘to support one’s contention or position' by argument, however brief; and, if need be, by proof, however informal’ before a tribunal authorized to act and willing and ready to do so.” [Denver v. Investment Co., 49 Colo. l. c. 249.] In Bridge Co. v. Un. & North’d Cos., 232 Pa. St. l. c. 269, a hearing is defined as “the receiving of facts and arguments thereon for the sake of deciding correctly.” It includes an examination of the issues whether of law or fact. [Waterman & Sons v. Soliday, 121 N. E. (Mass.) l. c. 154.] In courts of equity, as well, not all hearings are final hearings. [Akerly v. Vilas, 24 Wis. l. c. 171; Galpin v. Critchlow, 112 Mass. l. c. 343.] It appears from these authorities that the term has no rigid definition applicable to it in all its uses. [McArthur Bros. Co. v. Com., 197 Mass. l. c. 140.] In the statute it is applied ,to proceedings which do not culminate in a judgment, since the commission does not render judgments in the technical sense. That tribunal’s principal function as a legislative or administrative agency is to ascertain facts and thereupon declare the applicable rate, regulation, practice, etc. Its hearings include those sittings at which the evidence is offered by the parties. This follows from the general definitions quoted as well as from the statute itself. The proceeding at Kansas City was a hearing; It was so designated by the commission and is conceded by respondent to be “a part of a hearing.” The valuation of the company’s property was made in this case and was an important part of it. The statute (Sections 60, 78, 101 and 105a) expressly provides that in proceedings for valuation of properties, the commission may “cause a hearing or hearings to be held at such time or times and place or places as the commission may designate.”

These provisions and others quoted disclose that the Legislature had no intention to confine the commission to a single “hearing” in proceedings before it. The statute (same sections) also provides, that valuation proceedings are “subject to review by any'circuit court of this state in the same manner and within the same time as other orders and decisions of the commission.” That this gives jurisdiction only to courts in whose counties hearings are held is made clear by Section 111, which declares that “no court of this State, except the circuit court to the extent herein specified and the Supreme Court on appeal, shall have jurisdiction to review, reverse, correct or annul any order or decision of the commission ... It appears from this that the Legislature specially authorized, in one set of circumstances, different hearings at different places, and has ordained that the circuit court of the county in which “the hearing” was held shall have jurisdiction to issue writs of review to determine the legality of orders resulting from such hearings. It is also true that it had in mind, in the case of complaints against rate increases, the fact that the “hearing” of the complaint might not be completed short of ten months; an unusual' period of duration for a single hearing. For the purposes of jurisdiction, under Section 111, we think that when the commission has formally set a hearing in any county and appears and takes evidence in the case and is authorized and ready to hear and does hear the parties and their counsel, the circuit court of such county has jurisdiction to issue a writ of review. Such has been the construction of the act by the commission and its counsel, both in setting hearings and in conceding jurisdiction in'this and other cases. Such, too, apparently, has been the view of the circuit courts, and of this court on appeal, in accepting jurisdiction in such circumstances, as appears from the eases cited by relators. Such considerations have much weight in the construction of a statute in proper eases.

It is argued that the word “the” in the expression “the hearing” in Section 111 is of rather controlling force. As already pointed out, the Legislature itself, in the act, has construed that expression to apply to cases in which it authorized hearings in more than one county, and in which cases the statute would be meaningless unless it gave jurisdiction to the court in each county in which a hearing was held. After such a construction by the Legislature, we are not inclined to give to the word “the” in this act such a definite sense as counsel ascribes to it. Nor do the authorities require it in such a case. [Noyes v. Children’s Aid Society, 70 N. Y. l. c. 484; Penn, Mut. Life Ins. Co. v. Henderson, 244 Fed. l. c. 880. In view of these things and the requirement of the act (Sec. 127) that “the provisions of this act shall be liberally construed with a view to the public welfare, efficient facilities and substantial justice between patrons and public utilities,” we are of the opinion that the Circuit Court of Jackson County had jurisdiction to issue, hear and’ determine the writ of review here involved. The peremptory writ is awarded.

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

GRAVES, J.

(dissenting). — I do not agree to the result of this opinion. I agree to much that is said in the opinion. I agree that where the facts as to jurisdiction are undisputed, the matter of .jurisdiction is then a question of law, and the judgment of the trial court as to jurisdiction is not final in an action like the one at bar. I agree that the facts are not disputed herein, so that we have a question of law. But I do not agree, that, under the law, “the hearing” before the commission was at Kansas City. The final hearing, which culminated in the order, was at Jefferson City, and the jurisdiction is in Cole County and not in Jackson County. Judge Seehorn so held, and he is right in the matter. I therefore dissent.


source: Caselaw Access Project

author: WALKER, C. J.

license: Public Domain

text:
    STATE ex rel. WM. F. DUVALL v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    July 12, 1920.
    NEGLIGENCE: Fellow-servant: Irregular Foreman: Dynamite Explosion: Conflict of Opinions. The owner of a large tract of land had employed twelve or more men to remove stumps therefrom, among them a boy sixteen years old. The manner of removal was to bore holes in the stumps, and to place a stick of dynamite in the hole, in which was inserted a detonating cap attached to a fuse, which being ignited exploded the cap, and it in turn exploded the dynamite. The work was in charge of a general manager, but in his absence one Blough directed the work, and on a cold December morning Blough told the boy, who had been employed in the work for several weeks, to go to the stump patch, get his auger, warm it and go to work. Other men had preceded the boy and built a fire, and the boy took his auger there to warm it, and all the other employees were told by Blough to bring their augers to the fire and warm them. Blough ordered boxes of dynamite to be brought to the place, sat down upon an unopened box, ordered one' of the men to cut the fuses into four-foot lengths, and began to prime the caps and to insert the fuses thus capped into the sticks of dynamite taken from the open boxes near by. The priming was done by slipping a cap over the end of a fuse, then crimping the open end with steel pliers, which was a dangerous process, especially if done in close proximity to the dynamite, since if the percussion cap was crimped too near its closed end it would explode and in exploding would cause the dynamite to explode. When Blough, only a few feet from the fire, crimped a cap with the pliers, there was an explosion, which killed him and three other men, and blew off the, leg of the boy, who was standing on the opposite side of the fire, warming his auger. Held, that Blough was not a fellow-servant with the boy, but was at the time entrusted with his master’s power of directing the men and of controlling their movements in the very acts which resulted in the boy’s injury; and the court could not declare, as a matter of law, that the master was not liable for his injuries, but the question was one for the jury; and the opinion of the Court of Appeals so holding does not conflict with McIntyre v. Tebbets, 257 Mo. 117.

      Certiorari.

    Writ quashed.

      W. 0. Jackson and D. C. Chastain for relator.
    (1) One who is a foreman and authorized to direct the work of a servant who is injured is a fellow servant as to acts not involving the exercise of his authority as foreman, and in doing an act- which is the work of a co-laborer with the injured servant, negligently, thereby causing the injury, does not render the master liable. McIntyre v. Tebbetts, 257 Mo. 157; Fogarty v. St. Louis Transfer Co., 180 Mo. 490; Stephens v. Lumber Co., 110 Mo. App. 405. (2) The work in which plaintiff’s son and others and Blough, the alleged “straw boss,” were engaged was the clearing of stumps from a tract of ground by boring holes under stumps, preparing dynamite shots to be placed in these holes, placing and discharging the dynamite by which the stumps were blown out, in which the persons thus engaged were fellow-servants. Relyea v. Ry., 112 Mo. 86; Hawk v. McLead L. Co., 166 Mo. 128; Strottman v. Ry, Co., 211 Mo. 227; Stocks v. Transit Co., 106 Mo. App. 129; Henson v. Pascóla Stave Co., 151 Mo. App. 234; Livengood v. Lead & Zinc Co., 179 Mo. 229. (3) Under a well-established rule in this State, it is not necessary, in order that two persons be fellow-servants, that they be engaged in the same kind of work, but they are fellow-servants if they are engaged in the general enterprise in which they are all engaged. Murray v. Ry. Co., 98 Mo. 573; Higgins v. Mo. Pac. Ry., 104 Mo. 419; Schaub v. Ry. Co., 106 Mo. 74.

      Swearingen & Finnell, Volney McFadden and W. H. Hallett for respondents.
    (1) The decision of the Kansas City Court of AppealsMs not in conflict with any decision of this court, (a) The trial court erred in sustaining the demurrer to the evidence at the close of plaintiff’s case'and in directing a verdict for defendant. In determining whether the record discloses substantial evidence to prove-the cause of action, the court is required to make every inference of fact in favor of the party offering the evidence which the jury might in any degree of propriety have inferred in his favor, and is not at liberty to make inferences of fact in favor of the defendant to countervail or overthrow either presumptions of law or inferences of fact in favor of the plaintiff, as that would be usurping the province^ of the jury. Clark v. Long, 196 S. W. 409;. Trebbe v. American Steel Foundries, 185 S. W. 179; Behncke v. Clay Mining Co., 189 Mo. App. 639; Campbell v. Ry. Co., 175 Mo. 161; Hollweg v. Bell Tel. Co., 195 Mo. 149. (b) A demurrer to plaintiff’s evidence concedes the truth of such evidence. Moloney v. United Rys., 183 Mo. App. 292. (c) In determining whether or not a verdict should be directed for defendant, plaintiff’s evidence should be viewed in the light most favorable to him. Moore v. United Rys. Co., 185 Mo. App. 184; Dorrity v. Railroad, 188 Mo. App. 365; Kennish v. Sanford & Ray, 193 Mo. App. 368; Pfeiffer v. Supreme Tribe, 191 Mo. App. 38. (d) The duty of the master to use ordinary care to furnish his servant a reasonably safe place to work is a primary duty; one that he cannot delegate to any servant so as to escape liability for a negligent exercise thereof. Combs' v. Cons. Co., 205 Mo. 367;. Clark v. Foundries Co., 234 Mo. 436; Clark v. Long, 196 S. W. 409; Dayharsh v, Ry. Co., 103 Mo. 570; Miller v. Mo. Pac. Ry., 109 Mo. 357; White v. Montgomery Ward & Co., 191 Mo App. 268; Hollweg v. Bell Tel. Co., 195 Mo. 149; Jewell v. Sturges, 245 Mo. 720; Donohue v. Kansas City, 136 Mo. 670; Herdler v. Buck Stove Co., 136 Mo. 16; Stobile v. McMahon, 190 S. W. 652; Koerner v. St. Louis Car Co., 209 Mo. 141; Hahn v'. Mo. Pac. Ey. Co., 92 Mo. 440. (e) It is the personal duty of the master to direct and control the work, and if one of his servants is given power and authority to direct and control other servants in a performance of some branch of the master's work, the latter is liable for negligence on the part of such superior servant in the exercise of the power and authority thus conferred upon him. Jorkiewicz v. Brake Co., 186 Mo. App. 539; Burkard v. Eope Co., 217 Mo. 466; Strother v. Milling Co., 261 Mo. 1; Dowling v. Allen, 74 Mo. 13; Gale v. Mill Co., 159 Mo. App. 639; White v. Montgomery Ward, 191 Mo. App. 271. (f) In cases of negligence, liability does not hinge on whether, by the exercise of reasonable prudence, the very injury complained of ought to have been foreseen. The party charged may be liable for anything which, after the injury is complete, appears to have been a natural and probable consequence of his act or omission. Corby v. Tel. Co., 231 Mo. 417; Buckner v. Stock Yards Co., 221 Mo. 700; Benton v. St; Louis, 248 Mo. 98; Zimmerman v. Pryor, 190 S. W. 26. (g) A foreman having under him laborers bound to obey his orders, is, as to them, a vice-principal to their employer, and not their fellow-servant, and this although another may be general foreman of the entire establishment, with authority over him. Dowling v. Allen & Co., 74 Mo. 13; Combs v. Cons. Co., 205 Mo. 367; Stobile v. McMahon, 199 S. W. 652; Bane v. Irwin, 172 Mo. 306; Mertz v. Eope Co., 174 Mo. App. 107; Jorkiewicz .v. Brake Co., 186 Mo. App. 534. (h) A “straw-boss,” or one acting in the place of the regular foreman at the request of the latter, represents the master in directing and controlling the work. Barrett v. M., K. & T. Ry. Co., 138 Mo. App. 135; Mertz v. Eope Co., 174 Mo. App. 94; Gale v. Mill Co., 159 Mo. App. 639; Warren v. Eailroad, 113 Mo. App. 498; Bien v. Transit Co., 108 Mo. App. 399. The decision of the Nansas City Court of Appeals is in harmony with the ruling decisions of this court. Batesel v. American Zinc Co., 207 S. W. 742.
   WALKER, C. J.

Certiorari to the Kansas City Court of Appeals to quash its record in Gibbs v. Duvall, 201 S. W. 605, alleged to contravene our ruling in McIntyre v. Tebbetts, 257 Mo. 117. In the original case the plaintiff, Lydia Gibbs, a widow, sued the defendant Duvall for the loss of services of her minor son and for expenses incident thereto on account of personal injuries inflicted upon him through the alleged negligence of the defendant. At the close of plaintiff’s direct presentation of the case the trial court sustained a demurrer to the evidence. Upon an appeal, to the Kansas City Court of Appeals the lower court’s ruling was reversed and the case remanded for a new trial.

The facts as found by the Court of Appeals are that Duvall, the defendant in the original suit, owned a large tract of land near the town of Butler. Twelve or more laborers had been employed by him to remove stumps from the land with which much of it was covered. Plaintiff Gibbs’s son, a boy 16 years of age, was one of these employees. . The work was in charge of a general manager named Howard. The manner of the removal of the stumps was by boring auger holes in them, placing in each a stick of dynamite, in which was inserted a detonating-cap attached, to a fuse. By igniting the latter the dynamite was exploded and the stump blown out of the ground. The plaintiff’s son had been employed in this work for several weeks before the accident which resulted in his injury. One Bert Blough, who, in the absence of Howard, directed the work, told the Gibbs boy early on the morning of December 20th, to go down to the stump patch and get his auger, warm it up and go to work. In obedience to the order the boy went to the field where he and the men had been removing stumps the day before and got his auger. The weather was cold, below freezing, and it was necessary to warm the augers to prevent them from breaking-before commencing work. Some of the men had preceded the boy to tbe field and had built a fire. He took bis auger there to warm it. A few moments after be began to warm tbe auger, some boxes of dynamite and fuse and caps were brought and placed near tbe fire. All of tbe employees present were told by Blough to bring their augers to tbe fire and warm them. They obeyed. Blough, who can be said to bave ordered tbe dynamite brought to tbe place where tbe boy was warming bis auger, then sat down upon an unopened case of dynamite and, directing one of the men to cut tbe fuse into four-foot lengths, began tbe work of priming each fuse with a cap and inserting tbe fuses thus capped into tbe sticks of dynamite taken from the open cases near by. Tbe work thus being done. was in dangerous ' proximity to a quantity of fuse and dynamite and was bear tbe fire where tbe men were,warming tbe augers. "When a fuse bad been capped and attached to a stick Blough laid it on tbe ground at bis side. Although there was a supply of caps at bis feet, as a further demonstration of Blough’s general supervision be sent one of tbe bands for an additional supply. It was not yet daylight and the only light Blough bad for tbe priming operation was that from tbe fire and perhaps a lantern which he seems to bave bad.

Tbe caps were like tbe old percussion caps formerly used upon muzzle-loading guns, except that they were of tbe diameter of an ordinary lead, pencil and were about an inch and a half in length. Tbe closed end, like the old percussion caps, bad therein a small quantity of a high explosive which, when set off by tbe burning of tbe fuse, exploded the stick of dynamite into which.the cap end of tbe fuse bad been inserted. Tbe cap was fastened to tbe fuse by slipping it over the same, or putting tbe end of tbe fuse inside of tbe cap and against the closed end, and then with a pair of pliers crimping or compressing tbe open end of tbe cap to the fuse so as to bold it in place. To avoid accident it was necessary that care be exercised to crimp tbe cap as close as possible to its open end, or to apply tbe pressure as far away from tbe detonating end as possible. An expert testified that this process of priming and fusing dynamite was the most dangerous part of the Avork connected with its use; and in putting these caps on the fuses, the proper, reasonable and safe method was to do so at a distance from the dynamite, since if a cap exploded it would not only set off a quantity of other caps, but also the dynamite. "While Blough was thus employed the plaintiff’s son, in company with four of the men, were standing about the fire warming their augers preparatory to going to work. Blough, while engaged as stated and only a few feet away from the fire, was talking to the man standing at his side. While thus occupied he crimped a cap Avith his steel pliers and there was a blinding flash and a tremendous explosion which killed Blough, his companion and three of the men who were warming their augers. One of plaintiff’s son’s legs was blown off, blood issued from his mouth and ears, and he received other serious injuries.

The foregoing embodies the material facts as disclosed in the opinion of the Court of Appeals. Much of it is in its nature historical and it is relevant only so far as it tends to throAV light upon the court’s conclusion as to the status of Blough and the consequent liability of the defendant Duvall and hence the right of the relator to this writ.

A comparison and contrast of the facts in McIntyre v. Tebbetts, supra, with those in the case at bar, are necessary to a determination of the matter at issue. In the McIntyre-Tebbetts case one Kuhr, the driver of a wagon used by a manufacturing company in hauling freight from its factory to railway stations for shipment, was authorized to employ and did employ the men 'needed to load and unload the wagons thus used by his employer. He had control of the men while thus employed and furnished them with statements as to their hours of labor upon which their compensation for same was estimated and' paid. On the day of the accident he hired the plaintiff to assist in loading and unloading the wagon which he, Kuhr, was driving. After it was loaded and they were en route to the railway station, Knhr driving and the plaintiff McIntyre riding on the load, the former directed the latter to return an iron bar which they had inadvertently taken with them and deliver it to the shipping clerk at the office of their employer, and that he, Knhr, would wait until the plaintiff’s return. When the latter returned he attempted to climb upon the wagon where he-had previously been riding and was expected to ride, and just as he placed his foot upon the hub of one of the front wheels Kuhr started the team suddenly and plaintiff was thrown to the ground and injured. In a suit brought by him against Tebbetts, the employer, to recover damages for the injuries thus inflicted, there was a judgment in the circuit court in plaintiff’s favor, which- upon an appeal to this court was reversed, a majority of the court holding that while Kuhr was the vice-principal of the' defendant in the hiring of the plaintiff and in controlling his work while loading and unloading the wagon, at the immediate time of the accident Kuhr, as a driver of the wagon, was the fellow-servant of the plaintiff and that the latter was not entitled to recover. Three members of the court thought otherwise and their reasons therefor will be found in their dissenting opinion. A repetition of same is not necessary here. Conceding, as we must, although the reasons adduced in the majority opinion still appear to us to be tenuous, the biriding force of the conclusion held to follow from the facts in that case, if sufficiently parallel with those in the case at bar, will justify a like conclusion here. But are they parallel or even so akin that the conclusion in the one case may reasonably be held to establish a precedent for the determination of the other? In the Mclntyre-Tebbetts case, however, variant may have been the opinions as to the correctness of the conclusion reached therein, this much must be conceded, that the plainly defined authority of Kuhr as a vice-principal of his employer as to his relation to persons employed by him was technically limited to the loading and unloading of the wagons, and the majority opinion so held.

There was no such limitation as to the status of Blough in the instant case. “Whenever Howard, the manager, was not around, whatever Bert Blough said went.” The morning of the injury plaintiff’s son heard Howard 'tell Blough to put him and several other men to work boring holes, and Blough did so. * Every man who testified said they received their orders and directions from Blough. When the men wanted directions as to what to do, they went to Blough and he generally told them what to do. He directed the work and superintended it, told the men “what to do, and what kind of work to do, and where to work.” They received orders and instructions from him and obeyed them; and there is evidence tending to show that this was with the knowledge, sanction and authority of the defendant himself, and not merely the -unauthorized act of Howard in placing Blough over the men. Frequently, when the men were in the field at work, with Blough in' charge of and directing them, the defendant would come out and watch them, and would consult with Blough and obtain information and say what he had to say through him.

The conclusions of- the Court of Appeals, couched in its own language, clearly define the rule of law to be deduced from these facts:

“Certainly a jury could readily say that Blough was a foreman by authority of the defendant, and not merely by authority of Howard alone. Blough had superintending oversight of the employees on the ranch, including plaintiff’s son. . . . He was intrusted at the time with the master’s power of control of the practical business done in the field and of directing the movements of said son and of the other employees there. He is certainly not to be conclusively regarded as a fellow-servant of the others, nor is. that question to be decided by the name his position is called, nor by whether he could or could not hire and discharge the men under Mm. [Dayharsh v. Hannibal & St. Joseph R. Co., 103 Mo. 570, 575.] ...

“If a servant is given authority to direct and control other servants in the performance of some branch of the master’s work, he is not a fellow-servant of the others, but is a vice-principal. [Burkard v. Leschen & Sons Rope Co., 217 Mo. 466, 117 S. W. 35; Strother v. Kansas City Milling Co., 261 Mo. 1, 169 S. W. 43; Gale v. Helmbacher, 159 Mo. App. 639, 140 S. W. 77; White v. Montgomery Ward & Co., 191 Mo. App. 268, 271, 177 S. W. 1089; Jorkiewicz v. American Brake Co., 186 Mo. App. 534, 539, 172 S. W. 441.] And this is true, even though another may be general manager of the entire place, with authority over the foreman. [Dowling v. Allen, 74 Mo. App. 13, 41 Am. Rep. 298.] A ‘straw boss,’ or one acting in the place of a foreman, represents the master in controlling and directing the work. [Barrett v. Mo., Kan. & Tex. Railroad Co., 138 Mo. App. 135, 119 S. W. 980; Mertz v. Leschen & Sons Rope Co., 174 Mo. App. 94, 156 S. W. 807.] Clearly, the court could not,‘as a matter of law,- say that Blough was a fellow-servant, for • that question* under the circumstances, was one for the jury to pass upon under proper instructions. [Fogarty v. St. Louis Transfer Co., 180 Mo. 490, 514, 79 S. W. 664, 1 Ann. Cas. 136; Gale v. Helmbacher Mill Co., 159 Mo. App. 639, 140 S. W. 77.]

“It is true that a person may be a vice-principal of his master and also a fellow-servant of the one injured, and if the negligent act arises- merely through the doing of the labor the two are performing- in common,’ and,not as a result of the exercise of authority over the cu-laborer, then the negligence is that pf a fellow-servant. It -is the-character of the act, and not alone the servant’s rank, that determines the question-of liability or non-liability. For this reason, defendant contends that Blough’s negligence arose out of the work he was doing as a fellow-servant, and not as a foreman. It may be questioned whether this is true, even as applied to the act of negligence in the one specific feature'of the handling and use of the dynamite — i. e., the fusing and crimping of the cap too close to the detonating end. For, while the preparation of the fuse and caps, or, in other words, the priming of .the dynamite, may in one sense be deemed a detail of the general work to be accomplished, yet since it- is of snch a hazardous nature, and one that must be performed in an isolated place and away from the proximity to others, and involves the preparation of a dangerous instrumentality, it would seem to be a detail of such importance and of such a character as to be chargeable to the duty of the master.

“It is manifest that, so far as concerned the work in which plaintiff’s son was engaged, the dynamite used in blowing out the stumps was not a completed instrumentality until it had been properly primed and capped, and that this was of an exceedingly dangerous character, not to be done in the presence of others. If this be so, then Blough, in preparing the instrumentality, was not acting as a fellow-servant, but as the representative of his master. . . . But, however this may be, when we come to the other negligence attributable to Blough, in the handling of the dynamite and the priming and capping of it so close to other persons and to quantities of caps and dynamite — all of which was shown to be negligent and dangerous — and when' we consider, also, the negligence in failing to warn plaintiff’s young and inexperienced son of the dangers incident to the priming and capping of dynamite, we see that none of such negligent acts arose by reason of the performance of labor in common with plaintiff’s son, but grew directly out of a negligent performance of Blough’s duties as foreman. So that, in justifying a demurrer to the evidence, no help can be derived by defendant from the principle of duál capacity applicable to a servant like Blough.

‘ ‘ There is, however, another view of the case, which, if sound, renders the defendant liable, if the facts are believed by the jury, without regard to whether Blough was a fellow-servant or not; and that has to do with the charge of negligence in failing to furnish plaintiff’s son with a reasonably safe place in which to work or in failing to keep it reasonably safe. Such a duty is a primary duty, which is non-delegable. [Combs v. Round Tree Const. Co., 205 Mo. 367, 104 S. W. 77; Dayharsh v. Hannibal & St. Jos. R. Co., 103 Mo. 570; . . . Miller v. Missouri Pacific R. Co., 109 Mo. 350, 357; . . . White v. Montgomery Ward & Co., 191 Mo. App. 268, 177 S. W. 1089; Hollweg v. Bell Tel. Co., 195 Mo. 149; . . . Herdler v. Buck’s Stove & Range Co., 136 Mo. 3, 16, 37 S. W. 115; Koerner v. St. Louis Car Co., 209 Mo. 141. . . .]

“Defendant seeks to avoid this ground of liability on the theory that the place where the boy was assigned to work was elsewhere than at the fire where the explosion occurred. His contention is that the boy’s place of work was at the stumps and that the fire was some 200 yards from where they were. We have carefully searched the record, but have been unable to find anything showing how far the stumps were from the fire. But, assuming that they were that far away, or were where some other men seem to have been at work that distance away, still plaintiff’s son was not away from his working place when at the fire warming his auger. The whole affair, stumps and fire, were in the field and close enough together to constitute the place of work, when Blough told the boy to go down there to the stump patch, get his auger and warm it and go to work. The boy, in obedience to that command, went down to the field, and found two men had preceded him and had built a fire. He had not been there the Saturday before, and did not know the precise spot ■ at which the men had stopped work, nor did he know where the augers were. He said that, when he was told to go down there and get an auger, he supposed the other men knew where the augers were. . . . Plaintiff’s son did not disobey instructions, but obeyed them. He went down to the field where the work was to Be done, and found a fire there, and in a moment one of the hands, at Blough’s direction, brought the augers to the fire and the boy proceeded to warm his as directed.

“While- there is no one who expressly states that Blough directed the dynamite to be brought to the fire, yet the inference may well be drawn that it was brought there at his direction, since he came to the fire, apparently knowing it was there, began the work of preparing it for use, and ordered other paps to be brought; and . . . everything that was done that morning was under his command and direction. The jury, therefore, could find that Blough also directed the bringing of the dynamite to the fire. And he began the work of preparing the instrumentality for use — i. e., the work of priming and capping it there, with the boy and his companions standing near, warming their augers, as they had been told to do. Certainly the boy could not be said to be away from his place of work, so as to absolve his master from the duty of maintaining it in a reasonably safe condition, or at least of not allowing or making it to become unduly dangerous. In the circumstances here considered, the place the master is required to keep reasonably safe, or at' least not to render unduly dangerous, cannot be restricted to the very spot occupied by the stumps under which the boy was expected to bore after he had warmed his auger. It also included the spot where the fire was, and the two were so near to each other and so connected together .as to form- all one and the same place, and to make the master’s duty apply. [Clark v. Union Iron & Foundry Co., 234 Mo. 436, 452.] . . .

“Nor can it be said that, since the blasting of stumps by means of dynamite is • a dangerous work, therefore no liability can be predicated upon the master’s failure to keep the place as reasonably safe as the circumstances would permit. True, the blowing up of the stumps may be said to be dangerous work, but not especially so to plaintiff’s son, who bored holes under a stump before the dangerous agency was applied. But the evidence is that it was extremely hazardous to- cap and prime fuses near to dynamite, or to do such work when near others. Blough ordered the dynamite brought to the place where the boy was warming his auger, and he there began the exceedingly dangerous work of capping the fuses and attaching the dynamite in dangerous proximity to a quantity of fuse; of dynamite, and also near the men. The direct result of this was to render the boy’s place of work unduly dangerous, a great deal more so than was usual or necessary in the careful and ordinary prosecution of the work.

“Nor can liability for the negligence in failing to warn plaintiff’s young and inexperienced son of the dangers incident to the handling and priming of dyna-' mite be defeated on the ground that the boy knew the explosive power of dynamite, and was therefore guilty of contributory negligence in remaining at the fire and close to where the dangerous work of priming it was going on. He knew that dynamite was a powerful explosive, it is true; but he did not know that the work of attaching caps to the fuses and of priming the dynamite was dangerous. The boy was placed in an exposed and dangerous situation, with nó warning whatever as to the peculiar danger arising from what was there being done. This was negligence, and the boy’s mere knowledge that dynamite was an explosive cannot relieve from liability. [Dowling v. Allen, 74 Mo. 13, 41 Am. Rep. 298; Bulson v. International Shoe Co., 191 Mo. App. 128, 177 S. W. 1084; Timmerman v. Frankel, 172 Mo. App. 174, 157 S. W. 1051; Zimmerman v. Pryor, 190 S. W. 26.] . . . At any rate, the question of whether his knowledge of the danger was so complete as to make him guilty of contributory negligence would be for the jury to pass upon and not for the court.

“Neither can it be said, as a matter of law, that it was a physical impossibility for plaintiff’s son to see Blough crimping the caps, because the boy said that Blough was south and a little bit east of the fire, while he was northwest thereof; nor that it was a physical impossibility to see the crimping process, without looking or seeing across the fire. The case should have been submitted to the jury on some of the charges of negligence, at least, and it was error to sustain h demurrer to the evidence.”

From the foregoing comprehensive statement of the facts upon which the court’s legal conclusions were based, the difference between this case and that of McIntyre v. Tebbetts, is clearly marked, and while the line of demarcation as made in the majority opinion in that case may be sustained on the technical ground that when McIntyre was hurt he was not at that moment in the performance of duties which were subject to the direction of Kuhr, the evidence, fairly construed, warrants no such distinction in the case at bar. The only limitation upon the authority of Blough in superintending and directing the work in which the men were engaged was the presence of Howard. “Whenever Howard was away whatever Bert Blough said went.” Howard was away. The evidence, therefore, as stated by the Court of Appeals, convinces us that its opinion does not contravene the ruling in the Mclntyre-Tebbetts case or in any other rendered by this court having facts sufficiently parallel to authorize its being cited as a precedent.

From all of which we are of the opinion that our writ herein was improvidently issued and should be quashed. It is so ordered.

Williamson, Goode, Williams and Blair, JJ., concur; Graves, J., dissents; Woodson, J., absent.