source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    THE STATE ex rel. J. E. O’BANNON v. H. B. COLE et al., Appellants.
    In Banc,
    May 22, 1909.
    1. SCHOOLS: Vaccination: Suspending Pupils. In the event of a threatened epidemic of smallpox a school board has power to pass a rule excluding all pupils who have not been vaccinated. That power is given the board by Sec. 9759, R. S. 1899, which says that “the government and control of the district shall be vested in a board of directors” and by Sec. 9764, R. S. 1899, which says that “the board shall have power to make all needful rules and regulations for the organization, grading and government of their school district.” So long as such rules are reasonable a court of equity will not interfere with their enforcement; and a rule requiring that pupils, in the event of a present or threatened epidemic of smallpox, be suspended unless they submit to external vaccination, either by a family physician or a physician employed and paid by the board, is not unreasonable.
    2. -: Rules: Reasonableness Determined. Whether or not a regulation adopted by the board for the government of the school is a reasonable one, is to be judged in the first instance by the school board.
    3. -: Vaccination: Smallpox: Epidemic. Smallpox had been prevalent in Sedalia for eight years; the previous year it had been virulent; at the time the school board promulgated its rule requiring all pupils to be vaccinated, there were twenty-seven cases in the city; and there were other cases within two weeks of the trial of the case to compel the board to receive pupils who had been suspended because of refusal to submit to such rule. Held, that an epidemic of smallpox was both threatened and present.
    4. -: Smallpox: No Vaccination: Suspension: Compulsory Attendance. The rule of the school board, suspending all pupils who have not been vaccinated, would be a complete bar to a prosecution under the Compulsory School Attendance Law of 1905, of a parent who has not had his child vaccinated. That act must be construed with the whole body of the school law, and when so construed they can be made to so harmonize that a rule of the school board suspending pupils for failure to be vaccinated would excuse a violation of the Act of 1905.
    5. STATUTORY CONSTRUCTION: Expressio Unius Est, Etc.: Limited Application. The maxim expressio unius est exelusio alterius is a rule of limited use and application in the construction of statutes, and is employed only for the purpose of arriving at the legislative intention in enacting the law; and if there is no legislative intent apparent on the face of the statute to make it include all subjects of which it treats and to exclude all others, the maxim is of no value in .arriving at the legislative intent, which is at the basis of all statutory construction.
    6. -: -: Sec. 9765: Exclusion of Diseased or Exposed Children. Sec. 9765, R. S. 1899, excluding from the public schools any child afflicted with a contagious or infectious disease, or liable to transmit the same after having been exposed to the same, and making a violation of its provisions a misdemeanor, in no wise conflicts with sections 9759 and 9764, vesting the control and government of the school in a board of directors and giving to the board power to make all needful rules and regulations for the government of the schools. Section 9765 does not exclude the board’s power to make a rule excluding unvaccinated children in a case of a present or threatened epidemic of smallpox.
    Appeal from Pettis Circuit Court.- — Hon. Louis Hoffman, Judge.
    Reversed and remanded (with directions).

      Charles E. Yeater for appellants.
    (1) The courts refrain from interference with school regulations not oppressive or arbitrary and which are needful for the moral and physical health of the pupils. King v. School Board, 71 Mo. 628 ; Deskins v. G-ose, 85 Mo. 485; Dritt v. Snodgrass, 66 Mo. 286. (2) If smallpox is prevalent, as shown in this record, then even without express statutory authority, vaccination may he required as a condition precedent to the right to attend school. Duffield v. Williamsport School Dist., 162 Pa. St. 476; Field v. Robinson, 198 Pa. St. 638; State ex rel.. v. Board of Education, 21 Utah 401. (3) Under the power granted by Sec. 9764, R. S. 1899, to make all needful rules for the government of the public schools, the school boards of this State can make a rule requiring the vaccination of pupils as a condition of attendance, and particularly where epidemic conditions prevail, as shown in this record, which endanger life and health in the? community. In Matter of Rebenack, 62 Mo. App. 8; Hutchins v. School Com. of Durham, 137 N. C. 68. (4) The pleadings of both parties show that the children of relator were sent to the schools by him and that they were refused admission because not vaccinated, and therefore he could not be subjected to the penalities of the compulsory education act. Commonwealth v. Smith, 9 Pa. Dist. 625. (5) The rule of the school board requiring the vaccination of pupils is imperatively demanded by the highest considerations known to the law, the public health and protection to the life and safety of the citizen, and it in no wise contravenes any section of the Constitution, and the courts of the land have gone further and held statutes for compulsory vaccination to be valid and constitutional Stull v. Reber, 215 Pa. St. 156; Yiemeister v. White, 72 N. E. 97; Blue v. Beach, 155 Ind. 121; Bissell v. Davidson, 65 Conn. 183; Jacobson v.Massachusetts, 197 U. S. llj Com. v. Pear, 183 Mass. 242.

      G. G. Lawson and Barnett £ Barnett for respondent.
    (1) The school hoard had no authority to pass the order excluding children from school who had not been vaccinated. The school board is a body of limited jurisdiction. It has only such powers as are conferred upon it by statute. The provisions of the general school law, section 9764, do not include or embrace the power to exclude children from school, for the reason that they have not been vaccinated, because the right to exclude children on account of contagious diseases or liability to transmit the same is expressly provided for in the subsequent section, sec. 9765. This section is the only provision in our statutes authorizing the exclusion of a child from school on account of contagious or infectious disease or by reason of exposure thereto or liability to transmit the same and the mention of this cause is the exclusion of all other causes not mentioned. There could not be a stronger illustration of the maxim “expressio unius est exclusio alterius.” The Constitution of Missouri provides for the establishment and maintenance of free schools for the gratuitous instruction of all persons in this State between the ages of six and twenty years, and the Legislature has provided for the carrying out of the powers of said Constitution which provided free public schools for children of that age. Therefore, a rule has been established that all children of said age are entitled to attend the public schools and the Legislature has attempted to prescribe certain exceptions to the rule and the only exception prescribed so far as exclusion on account of diseases is concerned is in section 9765 and a mention of that exception excludes all other grounds of exclusion, other than those mentioned. The exception cannot be enlarged by construction, but is narrowed to the exception named in the statute, and the failure to be vaccinated is not one of, the exceptions named in the statute. State ex rel. v. Fisher, 119 Mo. 151. (2) The Legislature has enacted a law making it compulsory for parents to send their children to school. Laws 1905, p. 146. A punishment has been prescribed by act for failure to send children to school, and in view of this compulsory attendance the board can not exclude a child from school on account of failure to be vaccinated for the reason that their failure to send the child makes the parent a law-breaker. Therefore, the school board can not exclude the children from school and thus make the parent a law-breaker for not sending them to school, in obedience to the compulsory education law. Matthews v. Board of Education, 86 N. W. 1036. (3) The general police powers of a city authorizing the passing of ordinances and the making of regulations for the promotion of health or 'the suppression of disease do not include the passage of an ordinance making vaccination a condition precedent to the right of education. People v. Board of Education, 234 111. 422; Matthews v. Board of Education, 86 N. W. 1038. (4) Even if the case of In the Matter of Rebenack, 62 Mo. App. 8, were to be followed by this court yet that case is not in point here as that case was decided under the peculiar provisions of the charter under which the school district of the city of St. Louis was created. (5) We think it yúH be found that all the cases cited by appellant, supporting the authority of school boards to exclude children on the ground that they had not been vaccinated are cases in States where the statute itself expressly provides that children must be vaccinated before they can attend school or where the statute authorizes the school board to exclude children on that ground, or, as in some cases, where the charter of the city, which is a legislative act, authorizes the school board within such city to exclude such children, who have not been vaccinated. Appellant cites two or three Pennsylvania cases, but it will be fotmd that those cases are bottomed upon the statutes of the State of Pennsylvania. The Legislature of Pennsylvania by an Act of Assembly passed June 18, 1895, provided “that persons in charge of schools shall refuse admission to children except upon certificate of a physician that they have been successfully vaccinated or had previously had smallpox.” The case of Viemeister v. White, 72 N. E. 86, is a New York case and the laws of New York (Laws 1893) provide “that children must be vaccinated before they are admitted into the schools.”
   GRAVES, J.

Relator is a resident taxpayer of the city of Sedaba, and of the Sedaba school district. He is also the father of two children, aged between eight and fourteen years, which were excluded from the public schools of said district by reason of the action of the defendants who constitute the board of directors of the defendant school district of the city of Sedaba.

The board of directors of said school district on December 4, 1908, made the following order:

“Whereas it has come to the knowledge of the board of education that smallpox exists within the school district; that they deem it necessary that all children attending school, who have not been vaccinated, must be vaccinated within thirty days.” ,

On January 8, 1909, said board made the following additional order:

“On motion the following resolution was unanimously adopted:
“The board will not accept a certificate of vaccination unless the physician does state that the child has been vaccinated with vaccine virus, and all children who have had smallpox must bring a certificate from th,e physician in attendance to that effect; and where such certificate cannot be procured, then the parent or guardian must make affidavit that such child has had the smallpox. Any child who has been vaccinated as many as two times without taking, a certificate from the physician will be accepted.
“On motion Dr. Cole was authorized to purchase vaccine points to vaccinate poor children, the bill to be paid by the board.”

And on January 12, 1909, the records of said school district show the following additional order:

“Called meeting of the board of education held at the office of J. T. Montgomery. Meeting called to order by the president. Present: William H. Powell, W. M. Johns, Dr. Cole, Charles Hoffman, J. T. Montgomery.
“The president stated the object of the meeting was for the purpose of taking further action on the¡ question of vaccination; that he had been informed by the superintendent that certain doctors had been vaccinating school children by giving powders internally and giving them certificate that they had been vaccinated internally with vaccine virus.
“Dr. Barnum was present and requested to be heard on the subject, which was granted, and Dr. Barnum stated that, he had been vaccinating school children by giving the vaccine virus internally and that such treatment "would render the patient immune from smallpox.
“On motion the following resolution was passed, that no certificate of vaccination shall be received unless the same states that the person was vaccinated externally with vaccine virus.
“There being no further business, the board adjourned.”

Relator’s two children were excluded from the schools of the district in January, 1909, under the orders aforesaid, and because they had not been vaccinated as by said orders required. Upon their exclusion the relator instituted this action by mandamus in the circuit court of Pettis county to compel the defendants to reinstate Ms cMldren as pupils in said schools, and to cancel and annul the alleged illegal orders aforesaid. After pleading certain facts, the petition of relator concludes thus:

“Wherefore, the premises considered, the plaintiff, at the relation of J. E. 0 ’Bannon, prays the court to issue its writ of mandamus, directed to the said defendants and that they be directed and compelled to admit the relator’s said children to the said school in the said city of Sedalia in the appropriate rooms and that they be directed and compelled by the order and writ of this court to cancel, annul and set aside said illegal order and have such other and further allegations as to the court may seem proper in the premises.”

Defendants made due return to the alternative writ issued upon relator’s petition, and by reply filed the issues were duly made up and the case proceeded to trial.

There is little dispute as to the facts. From the evidence it appears that smallpox has been prevalent in the city of Sedalia, which city is within the school district, for at least eight years; that at the time the first order was made, there were twenty-seven cases of smallpox in said city; that a year or so previous smallpox had been so prevalent that the State Board of Health threatened to take charge of the city; that there had been five hundred to six hundred cases within the past eight years; that in the M., K. & T. Hospital, within said city, there was a pest ward, and there were smallpox patients treated there every year; that there were cases of smallpox in the city to within two weeks of the trial of the case, nisi.

Upon the trial the alternative writ was made peremptory and by the judgment and decree of the court the order of December 4, 1908, supra, and all subsequent orders of the school board, were declared null and void, and defendants directed to set them aside, and to forthwith admit relator’s children to said school. Judgment also went against defendants for costs.

From such judgment, defendants, after unsuccessful motions for new trial and in arrest of judgment, have duly appealed to this court.

I. Appellants contend that the board of directors had the inherent right to promulgate and enforce the orders and rules in question, and they further contend that they have that power under the general statutory provisions. ' By section 9759, Eevised Statutes 1899, it is provided:

‘ ‘ The government and control of the district shall be vested in a board of directors composed of three members, who shall be citizens of the United States, resident taxpayers and qualified voters of the district, and who shall have paid a State and county tax within one year next preceding his or their election.”

And by section 9764, Eevised Statutes 1899, it is provided: “The board shall have power to make all needful rules and regulations for the organization, grading and government in their school district — said rules to take effect when a copy of the same, duly signed by order of the board, is deposited with the district clerk, whose duty it shall be to transmit, forthwith, a copy of the same to the teachers employed in the schools; said rules may be amended or repealed in like manner.”

In this contention we agree with the appellants. The precise question has never been before this court, but has been before the St. Louis Court of Appeals in the case of the matter of the application of Eebenack for a writ of mandamus against the board of education of the city of St. Louis (In the Matter of Eebenack, 62 Mo. App. 8).

This court, however, has always recognized the right of the school boards of the State to make reasonable rules for tbe regulation of tbeir respective schools. [Deskins v. Gose, 85 Mo. 485; King v. School Board of Jefferson City, 71 Mo. 628; Dritt v. Snodgrass, 66 Mo. 286.]

In the Rebenack case, supra, Judge Rombauer, of the St. Louis Court of Appeals, had to deal with the exact question before us. In that case the rules of the school board excluded children from attending the public school without satisfactory evidence that such children had been vaccinated. Rebenack’s children were excluded under this rule and by mandamus he sought to reinstate them. The charter provisions with reference to the board of education gave such board power “to make all rules, ordinances and statutes for the government and management of such schools and property, so that the same shall not be inconsistent with the laws of the land.” One of the laws of the land then in force and applicable to St. Louis was section 9765, relied upon by respondent in this case, and discussed later in this opinion. The rule was held to be a reasonable one, and it was further held to be within the power granted by the charter as above quoted. The grant in our statute, section 9764, Revised Statutes 1899, is fully as comprehensive and broad as is this charter grant of powers.

The Rebenack case bas been cited with approval in the following cases: Blue v. Beach, 155 Ind. l. c. 138; Com. v. Pear, 183 Mass. l. c. 246; State ex rel. Freeman v. Zimmerman, 86 Minn. l. c. 358; Hutchins v. Durham, 137 N. C. l. c. 70; State ex rel. Cox v. Board of Education, 21 Utah l. c. 415.

By section 9759’, supra, the government and control of the district is vested in the board of directors. We have here a broad and general grant, as do we also in section 9764, supra. We have no doubt that in the event of a threatened epidemic of smallpox such boards can pass a rule excluding all pupils who have not been vaccinated. That a person who has never been vaccinated is subject to the contagion of smallpox is general knowledge. That vaccination has reduced the ravages of this disease is also general knowledge. That the appearance of unvaccinated pupils in a public school at a time of a smallpox epidemic, 'would tend to break up and disorganize a public school, is unquestioned. That the school board has the power to absolutely suspend the school during epidemics of contagious or infectious diseases, we think can hardly be questioned. No court would compel the opening of a school under such circumstances. The power here exercised was a very similar power, and if these rules are reasonable, we see no reason why their enforcement should be prohibited.

In the Rebenack case, supra, it is said: “In the nature of things, it must rest with the boards of education to determine what regulations are needful for a safe and proper management of the schools, and for the physical and moral health of the pupils entrusted to their care. If such regulations are not oppressive or arbitrary, the courts cannot, or should not, interfere.”

In Duffield v. School District, 162 Pa. St. l. c. 483, the Supreme Court of Pennsylvania, in discussing the question, says: “It would not be doubted that the directors would have the right to close the schools temporarily during the prevalence of any serious disease of an infectious or contagious character. This would be a refusal of admission to all the children of the district. They might limit the exclusions to children from infected neighborhoods, or families in which one or more of the members was'Suffering from the disease. For the same reason they may exclude such children as decline to comply with requirements looking to prevention of the spread of contagion, provided these requirements are not positively unreasonable in their character. Is the regulation now under consideration a reasonable one? That is to be judged of in the first instance by the city authorities and the school board. It is only in the case of an abuse of discretionary powers that the court will undertake to supervise official discretion,” and further at page 484, the court says: “It is conceded that the board might rightfully exclude the plaintiff’s son if he was actually sick with, or was just recovering from, the smallpox. Though he might not be affected by it, yet if another member of the same family was, the right to exclude him, notwithstanding he might be in perfect health, would be conceded. How far shall this right to exclude one for the good of many be carried? That is a question addressed to the official discretion of the proper officers; and when that discretion is honestly and impartially exercised the courts will not interfere.”

In the Zimmerman case, the Supreme Court of Minnesota thus expresses the law: “It is very true that the statutes of our State provide that admission to the public schools shall be free to all persons of a defined age and residence, and that every parent having control of any child of school age is expressly required to send such child- to school, and that all teachers are required to receive them, and that, if any child of school age is denied admission or suspended or expelled without sufficient cause, the board or other officers may be fined. But all these statutory provisions must be construed in connection with, and subordinate to, the statutes on the subject of the preservation of the public health and the prevention of the spread of contagious diseases. The welfare of the many is superior to that of the few, and, as the regulations compelling vaccination are intended and enforced solely for the public good, the rights conferred thereby are primary and superior to the rights of any pupil to attend the public schools.”

The North Carolina court, in Hutchins v. Durham, supra, thus speaks: “The plaintiff relies upon Potts v. Breen, 167 Ill. 67, 39 L. R. A. 152, 59 Am. St. Rep. 262, that in the absence of express legislative power a resolution requiring vaccination as a prerequisite to attending schools is unreasonable, when smallpox does not exist in the community and there is no reasonable ground to apprehend its appearance. With the present rapid means of inter-communication, smallpox may make its appearance in any community at any moment without any notice given beforehand, and incalculable havoc be made, especially among the school children, ‘which cannot be remedied by a subsequent order excluding the non-vaccinated. ‘An ounce of prevention is worth a pound of cure.’ Besides that case is not in point here, where smallpox had been epidemic and was still threatening. The language of the resolution making it ‘permanent’ will not prevent its repeal, if upon the subsidence of the danger the school board of that day shall deem it proper to repeal. If the action of the board is not satisfactory to the public, a new board will be elected who will rescind the resolution. ’ ’

The Illinois case, thus criticized in the above, is of the line of Illinois cases relied upon by the respondent here. It will be noticed, however, that the Illinois rule does not go to the extent of holding that a board of education in case of a threatened smallpox epidemic could not exclude pupils 'who had not been vaccinated. In the very recent case of People v. Board of Education, 234 Ill. l. c. 425, the doctrine of the Potts case is thus stated: “In the case of Potts v. Breen, 167 Ill. 67, it was held that the exclusion of a child from a public school because of a refusal to be vaccinated can only be justified where such course is necessary, or reasonably appears to be necessary, in ease of an existing or threatened epidemic of smallpox and to prevent the spread of the disease. In the case of Lawbaugh v. Board of Education, 177 Ill. 572, the court adhered to those principles and declined to further discuss them, although earnestly urged to reconsider the former decision.”

Likewise says the Utah Court, State ex rel. Cox v. Board of Education, 21 Utah l. c. 414 and 415.

The courts may be somewhat divided upon the question as to whether or not vaccination under all conditions and at all times be made a condition precedent to a child attending a public school, but the courts are practically a unit in holding that in the event of a present or threatened epidemic such rules are reasonable and should be upheld by the courts. And such has been the rule in States where there is no express statutory authority requiring vaccination. Vide some of the cases supra.

Many States have passed laws requiring vaccination of pupils before entering schools and these have been generally upheld and that too in the face of statutory and constitutional provisions making sucb schools open to all pupils within the required ages. [Bissell v. Davison, 65 Conn. 183; Viemeister v. White, Pres., etc. (N. Y.), 72 N. E. 97; Com. v. Pear, 183 Mass. 242; Field v. Robinson, 198 Pa. St. 638; Jacobson v. Massachusetts, 197 U. S. 11, and cases cited.]

To the opinion in the Jacobson case, is appended a valuable note showing the effectiveness of vaccination, and the origin of compulsory vaccination.

We shall not go further upon this branch of the case. Nor shall we go beyond the case in question. For years there had been smallpox in Sedalia. Within two weeks of the trial, nisi, there were yet cases there. At the promulgation of the rules in question there were a number of cases, so there was not only a threatened epidemic of the disease, but an epidemic itself. We are of opinion that school boards in Missouri in the event of a smallpox epidemic, or a threatened smallpox epidemic, have the right to enforce snch rules as were enforced in this case, unless they are precluded therefrom by certain other statutes relied upon by respondent, and these statutes we discuss in the succeeding paragraphs.

II. One contention of respondent is that by reason of the Compulsory School Act of 1905, Laws of 1905, p. 146, the rules in question would force him to violate that law, and that under that law the rules enforced by the school board are void. This act in no 'way affects these rules. In the first place there can be no prosecution of a parent for failing to send his child to school under this Act of 1905 until after an officer of the school district has notified him to send such child and then if he fails a prosecution can be had. Respondent is in no danger of violating this law. The act makes it a misdemeanor to violate its provisions and we have yet to hear of a criminal case wherein a defendant was convicted of wilfully violating a law, when in fact he has manifested the disposition that this respondent has to comply with the strict letter of the law. But laying aside all levity, the act of the school board, whose officer must initiate the prosecution by giving notice, would be an absolute defense. Beyond all this, the Act of 1905 must be construed with the whole body of the school law and !when so construed it can be made to harmonize therewith to the end that there would be no violation of the law. The same question is discussed in a way in the Minnesota case, supra, wherein the court uses the language herein above quoted. It Will be observed that the court says that all the statutes must be construed together.

The exact question before us came up in Pennsylvania in the ease of Com. v. Smith, 9 Pa. Dist. Rep. 625. Smith refused to produce a certificate that his son had been vaccinated as required by the order of the hoard of education. Under the order the teacher refused to admit the child upon application of Smith. The attendance officer (the same as provided for in our Act of 1905), notified Smith to send his child to school, and at the expiration of the time designated in the notice proceeded to prosecute Smith, and upon being convicted in the justice’s court Smith appealed to the district court, in which court, Fanning, P. J., in an elaborate opinion, in which is discussed the compulsory school law of that State (much like our own), reversed the judgment of the lower court.

So that we are of opinion that there is no real conflict between rules of the character involved in the case before us and the Act of 1905.

This contention is therefore ruled against the respondent.

III. Respondent chiefly relies upon section 9765, Revised Statutes 1899, as the battering ram by which the rules of the school board, supra, are to be demolished. This statute it is said, when interpreted under the familiar maxim of ‘ ‘ expressio unius est ex-clusio alterius,” is an unsurmountable barrier to the exercise of the power exercised by the Sedalia School Board.

This statute reads: “It shall be unlawful for any child to attend any of the public schools of this State while afflicted with any contagious or infectious disease, or while liable to transmit such disease after having been exposed to the same. For the purpose of determining the diseased condition, or the liability of transmitting such disease, the teacher or board of directors shall have power to require any child to be examined by a physician or physicians, and to exclude such child from school so long' as there is any liability of such disease being transmitted by the same. A refusal on the part of the parent or guardian to have an examination made by a physician or physicians, at the request of the teacher or hoard of directors, will authorize the teacher or hoard of directors to exclude such child from school; and any parent or guardian who shall persist in sending a child to school, after having been examined as provided by this section, and found to be afflicted with any contagious or infectious disease, or liable to transmit the same, or after having refused to have such child examined as herein provided, shall be deemed guilty of a misdemeanor, and upon conviction, shall be punished by fine of not less than five nor more than one hundred dollars.”

The maxim above quoted is purely one of construction. It is one of limited use and application. .And when applied in the construction of statutes it must be with the purpose solely of gathering the legislative intent. That is to say, whether or not the legislative body intended by mentioning one thing to exclude all others.

Of this maxim, Black in his concise and estimable work on Interpretation of Laws, p. 146, says: “The maxim ‘expressio unius est exclusio alterius’ is of very important, though limited, application in the interpretation of statutes. It is based upon the rules of logic and the natural workings of the human mind. But-it is not to be taken as establishing a Procrustean standard to which all statutory language must be made to conform. On the contrary, it is useful only as a guide in determining the probable intention of the Legislature, and if it should be clearly apparent, in any particular case, that the Legislature did not in fact intend that its express mention of one thing should operate as an exclusion of all others, then the maxim must give way.”

And Endlich, equally strong and expressive, in his work on Interpretation of Statutes, sec. 398, says: “And, on the other hand, if there is such a rule, it is confessedly liable to so many restrictions and exceptions in its application as to be practically swept away. Indeed, the extreme caution necessary in its application is emphasized wherever it is recognized by writers. Even as to penal statutes, it is said to be too general and subject to too many exceptions to govern the construction. ’ ’•

In Broom’s Legal Maxims (8 Ed.), page 653, that noted writer uses this cautionary language: “It will, however, be proper to observe, before proceeding to give instances in illustration of the maxim ex-pressio unius est exchisio alterius, that a great caution is requisite in dealing with it, for, as Lord Campbell, C., observed in Saunders v. Evans, 8 H. L. Cas. 729, it is not of universal application, but depends upon the intention of the party as discoverable upon the face of the instrument or of the transaction.”

Other text-writers and cases are along the same line. The maxim as applied to statutory construction is of very limited use, and when invoked at all is for the mere purpose of discovering the legislative intent in enacting the law. Legislative intent is at the basis of all statutory construction. So that the real question before us in the construction of section 9765, supra, is whether or not there was a legislative intent to limit in this particular the broad powers granted to school boards by sections -9759 and 9764 to govern and control their respective schools and to make all needful rules therefor. We think not. These statutes being pari materia should he construed so as to- make them each and all stand, if such construction fairly falls within the legislative intent, as such intent is or may be gathered from them. Let us analyze said section 9765. This analysis shows: (1) it prohibits a child afflicted with a contagious or infectious disease, or one exposed to such a disease and liable to transmit the same, from attending a public school; (2) for determining either its diseased or exposed condition either the teacher or school board may require the child to he examined by a physician; (3) snch child may be excluded so long as there is danger of transmitting such disease; (4) a refusal upon the part of the parent or guardian to permit such child to be examined authorizes the exclusion of such child from the school, and (5) if the parent or guardian shall persist in sending such child to the school, such act is made a misdemeanor and a punishment is affixed.

This analysis of the section shows that it is dealing wholly with a case where a child is actually diseased, or has been exposed to a disease of the character named. The statute does not undertake to abrogate the general power to control the school given to the board of directors by section 9759, supra, nor does it undertake to deal with the subject of needful rules as authorized by section 9764, supra. One main purpose of this section 9765 is to provide a punishment for that class of either careless or persistent parents, who are willing to inflict upon others the diseases and troubles of their own children. The first part of the statute, as said, deals with a concrete case of a diseased or exposed child, but by no maxim, or other rule of construction, can we see how it can be said that in the enactment of this statute there was a legislative intent to preclude a school board from enacting reasonable rules to prevent the appearance of contagious or infectious diseases in the school room. The rules in question in this case were enacted for the purpose of preventing the appearance of disease in the school. This the school board can do, so long as their rules are reasonable, under the general grant of power. As said the statute relied upon by respondent deals with a ease where actual disease has appeared, or with a case where it is known that there has been exposure and thereby reasonably expected appearance of the disease.

These statutes are not conflicting. Nor is there apparent in the latter statute an intent upon the part of the Legislature to exclude the powers of a school board to pass rules intended to prevent the first appearance of smallpox in the school. In our judgment there was no attempt to curtail the po,wers of a school board to pass needful rules for their schools.

As stated in a former part of this opinion, we shall not go beyond the facts of the case, and in confining ourselves to the facts of the particular case, may not go quite so far as seems to have been done in the Bebenack case, for it does not therein appear that there was in fact either an epidemic of smallpox or a threatened epidemic of smallpox.

We are of the opinion that the school boards of Missouri have the right to enact and enforce rules of the character here in question at all times whenever there is either a smallpox epidemic in the district, or whenever there is a threatened smallpox epidemic.

The very purpose of such regulations might be thwarted were we to actually await the epidemic itself.

From these views it follows that this cause should be reversed and remanded with directions to the circuit court to set aside its judgment making the alternative writ of mandamus peremptory, and to enter a judgment quashing the alternative writ and rule, and for costs against the relator in favor of the defendants.

All concur, except ValUcmt, G. J., absent; and Burgess and Fox, JJ., who dissent.


author: GRAYES, J.

text:
    FIRST NATIONAL BANK OF KANSAS CITY v. JOHN D. WHITE, Appellant.
    Division One,
    May 31, 1909.
    1. JUDGMENT: Upon Warrant of Attorney: Strictly Construed: Confession: Upon Hearing. A power found in a note authorizing any attorney at law “to appear for me in an action on the above note brought against me in any court of record, to waive issuing and service of process against me, and confess judgment against me, and also in my behalf to waive and release all errors in said proceedings and judgment, and all proceedings, appeals or writ of error thereon,” if valid at all, must be construed with minute strictness; and all proceedings thereunder, if valid at all, must be within the strict letter of the warrant of attorney. The only judgment that could be entered under the authority granted is one by confession, and a judgment reciting that the attorney consented “'that this cause may be taken up and heard,'and said cause duly coming on to be heard, on the pleadings and evidence, and the court having heard and considered the same,” etc., is not a judgment by confession, but one rendered upon and after a trial in which evidence was heard, and is therefore invalid.
    2. JUDGMENT OF OTHER STATES: Rendered Upon Warrant of Attorney. Because the court in obedience to the full-faith- and-credit clause of the Federal Constitution has held good judgments of other States upon a warrant of attorney to confess judgments, is no reason for upholding such a judgment rendered by a court of this State.
    3. WARRANT OF ATTORNEY: Invalid Contract: Against Policy of Law: As Security for Debt. A warrant of attorney written into a promissory note, authorizing any attorney at law to appear in court, waive service and confess judgment against the maker, is an invalid contract, and a judgment entered in pursuance thereto in this State is also invalid. The policy of our laws does not permit the maker, when entering into an obligation, to bargain away his right to be heard in court, should a question ever arise between him and the obligee in relation to it. Such written authorization, if a matter of procedure, does not find support in the Code (Sec. 649, R. S. 1899), which does not require a written warrant from a client to a licensed attorney. If it be considered a security for a debt, as it was at common law, it has never found recognition in this State, the policy of the Recorder’s Act being against hidden security.

      4. -: : Door to Fraud and Duress. The policy of our law is against placing a debtor in the absolute power of the creditor, by permitting the debtor to obligate himself to pay a debt, and to authorize any attorney at law, selected by the creditor, to appear in any court of record, waive service of process, and confess judgment against him,, without notice or a hearing. Th& field of fraud, oppression and duress is too far enlarged by such an instrument.
    5. -: : Denying Right of Appeal. A warrant of attorney written into a promissory note, authorizing any attorney of record to appear, waive service and confess judgment and “to waive and release all errors in said proceedings and judgment, and all proceedings, appeals or writs of error thereon,” is void because it denies the debtor an appeal, contrary to the statute.
    6. -: : Any Attorney. And such a -warrant to “any attorney at law” to appear “in any court of record” is void, because it gives the creditor the right to go to any State for his judgment.
    7. CONFESSION OF JUDGMENT: Covered by Statute: Warrant of Attorney. The statutes (Secs. 789-791, R. S. 1899) covers the subject of a judgment by confession, and if the common law as to warrants of attorney authorizing a confession of judgment was ever in force in this State, it has been abrogated by these statutes; and they do not authorize an agreement written into the body of a note, empowering any attorney at law to appear for the maker, waive service and confess judgment.
    Appeal from Jackson Circuit Court. — Eon. Thos. J. Seehorn, Special Judge.
    Reversed.

      Samuel Feller and Karnes, Neio & Krawthoff for appellant.
    (1) Defendant contends that the court had no jurisdiction of the subject-matter or over the person of defendant, and had no power or authority to render the judgment. 1. The conditions of the note conferred no authority on C. E. Denham to enter the appearance of the defendant and confess judgment. 2. Said confession of judgment does not comply with the requirements of the laws of Missouri. 3. No authority is given in said note to any attorney at law to admit.the truth of the allegations in the plaintiff’s petition and to consent to a trial. 4. Plaintiff cannot accomplish indirectly what the law forbids being done directly. 5. Defendant is entitled to his day in court, and he has a good and meritorious defense to said action. It is against the policy of the law of Missouri to recognize conditions such as are contained in the note in question. It certainly cannot be successfully contended that the authority contained in the note can he varied from or enlarged by an attorney at law who may assume to appear for the defendant in a suit brought on the note, but that the authority given to such attorney must he strictly adhered to. He can do no other act or thing except that set out in the note. The only authority given to an attorney at law is to enter the appearance of the defendant and waive issuance and service of process and “confess judgment.” Even if we admit, which we do not, that said conditions are valid in this State, yet all the attorney can do is to confess judgment. He cannot admit on behalf of defendant the allegations in the petition and consent to a trial, for no such authority is given to him in the note. His authority certainly is special and not general. Denham had no authority to admit the allegations of the petition and consent to a trial. The court had no jurisdiction or authority to enter upon a trial of the cause. It cannot be treated as a judgment by consent, for Denham had no authority to consent to a judgment on behalf of defendant. Manifestly this authority did not comply with the provisions of Secs. 790 or 792, E. S. 1899'. (2) At common law there were but two kinds of judgments by confession. First, where, after service, the defendant, without plea, confesses the cause of action as just; second, when, after pleading and before trial, the defendant both confesses the cause of action and withdraws the plea, and judgment is entered without trial. In both cases regular process must have been served on defendant. Burr & Co. v. Mather Co., 51 Mo. App. 470. There was no such thing as confession of judgment without issuance and service of process at common law. The only authority to enter judgment by confession without the service of regular process on defendant is that contained in the sections above referred to, and must he strictly complied with in order to confer jurisdiction on the court. Oyster v. Shumate, 12 Mo. 580; Loth v. Faconesowich, 22 Mo. App. 68; Gilbert v. Gilbert, 33 Mo. App. 268. It is against the policy of the laws of Missouri to recognize conditions such as contained in the note in question. Dissenting opinion of Valliant, J., in Orim v. Orim, 162 Mo. 544.

      Ball é Ryland for respondent.
    (1) The warrant of attorney is valid, not being prohibited by statute. 17 Am. and Eng. Ency. Law (2 Ed.), 752; 30' lb. 106'. (2) The court had jurisdiction. Genestelle v. Waugh, 11 Mo. 367; Orim v. Orim, 162 Mo. 544; Vennum v. Martens, 119 Mo. App. 461; Laws 1905, p. 244, sec. 5; Hutchinson v. Palmer (Ala.), 40 So. 339; Bank v. Garland (Mich.), 67 N. W. 559; Teel v. Yost, 128 N. Y. 387; Grubbs v. Blum, 62 Tex. 426; Holmes v. Parker, 125 111. 478; Wassell v. Reardon, 11 Ark. 705; Rapley v. Price, 11 Ark. 713 ;■ Parker v. Poole, 12 Tex. 86. (3) Judgment rendered on warrant of attorney will not he set aside, unless the defendant affirmatively shows to the satisfaction of the court that he has a meritorious defense. Anderson v. Studehaker, 37 111. App. 532; Berg v. Bank, 84 111. App. 614; Parwell v. Houston, 151 111. 239; Pierce v. Miller, 99 111. App. 424, 207 111. 188. (4) The attorney appearing and confessing the judgment did not exceed his authority; and the statute relative to the formal confessions of judgment has no application to the case. R. S. 1899, see. 789 ; G-enestelle v. Waugh, 11 Mo. 367; Teel v. Yost, 128 N. Y. 402; Boyd v. Ward Furniture Co., 38 Mo. App. 210; Adler v. Anderson, 42 Mo. App. 189; Houpt v. Bohl, 75 S. W. 470, 71 Ark. 330.
   GRAYES, J.

The record in this case discloses that on October 4,' 1905, the defendant executed and delivered to the plaintiff, a certain written obligation in the following form:

“Kansas City, Mo., Oct. 4, 1905.
“$14,758.00.
“Ninety days after date, for value received, we jointly and severally promise to pay The First National Bank of Kansas City, or order, Fourteen Thousand Seven Hundred Fifty-eight Dollars, at its office in Kansas City, Mo., with interest from, date at the rate of 7 per cent per annum until paid. All indorsers and parties hereto jointly and severally waive protest. .
“Aad we jointly and severally do hereby authorize any attorney at law to appear for us, or any of us, or the survivor or survivors of us, in an action on the above note brought against us, or either of us, or the survivor or survivors of us, by said The First National Bank of Kansas City, at any time after said note becomes due, in any Court of Record in the State of Missouri or elsewhere, to waive the issuing and service of process against us, or any of us, or the survivor or survivors of us, and confess judgment in favor of said The First National Bank of Kansas City, against us, or any of us, or the survivor or survivors of us, for the amount that may then be due thereon, with interest at the rate therein mentioned, and the costs of suit, together with an attorney’s fee of 10 per cent and also in behalf of us or any of us, or the survivor or survivors of us, to waive and release all errors in said proceedings and judgment, and all proceedings, appeals or writ of error thereon.
“John D. White.”

January 19, 1906, the plaintiff filed in the circuit court of Jackson county, Missouri, a petition, to which was attached and filed the above writtén instrument, in this language:

“Plaintiff for its cause of action against the defendant states that on the 4th day of October, 1905, the defendant executed and delivered to the plaintiff his promissory note, wherein and whereby for value received he promised to pay to the plaintiff, or its order, ninety days after date, the sum of fourteen thousand seven hundred fifty-eight ($14,758) dollars at plaintiff’s office in Kansas City, Missouri, with interest from date at the rate of seven per cent per annum. That said note is no'w past due, plaintiff is still the owner and holder thereof, and the whole thereof together with interest, remains due and unpaid; that the defendant, in and by the terms of said note, agreed and authorized any attorney to appear for him in any action brought against him by plaintiff at any time after said note should become due, in any court of record in the State of Missouri, and to waive the issuance and service of process upon him, and to confess judgment in favor of plaintiff and against defendant for the amount that might then be due on said note, with interest at the rate therein mentioned, costs of suit, and an attorney’s fee of ten per cent, and to waive and release all errors in said proceedings and judgment and all appeals or writs of error. Said note is herewith filed, marked ‘Exhibit A’ and made part hereof.
“Wherefore, plaintiff prays judgment against the defendant for said sum of fourteen thousand seven hundred fifty-eight dollars, with interest thereon from October 4, 1905, at the rate of seven per cent per annum, and with attorney’s fee of ten per cent thereof, and all costs.”

On the same date and at the same time there was filed in said cause the following:

“Now comes C. E. Denham, attorney at law, and pursuant to the authority given by the note sued on. herein, appears for and enters the appearance of defendant John D. White in the above-entitled cause, waives the issuing and service of process against said defendant, admits that the matters and things stated in the petition herein are true, and consents that judgment may be entered in favor of plaintiff against said defendant as prayed in the petition.
“John D. White,
“By O. E. Denhajm,
“Attorney at Law.”

After the filing of the several instruments set out above, and on the same day, the circuit court of Jackson county entered the following judgment in said cause:

“Now comes plaintiff by Ball & Ryland, its attorneys, and comes defendant by C. E. Denham, attorney at law, and said defendant by said attorney enters his appearance herein and waives issuance and service of process, and consents that this cause may be taken up and heard and said cause duly coming on to be heard, on the pleadings and evidence, and the court having heard and considered the same and being fully advised in the premises, finds for. the plaintiff and that the matters and things alleged in the petition are true, and finds that by the terms of the note sued on defendant authorized said attorney at law to enter his appearance herein and waive issuance and service of process and to consent that this canse may he now heard and judgment rendered in favor of plaintiff for the amount due on said note, and the court finds that there is now due on said note and plaintiff is entitled to recover from defendant thereon the sum of fifteen thousand sixty-five and 51-1001 ($15,065.51) dollars, principal and interest, and the further sum of fourteen hundred seventy-five and 80-100 ($1475.80) dollars as attorney’s fees, making a total of sixteen thousand five hundred and forty-one and 31-100 dollars ($16,541,31).
“It is therefore considered, ordered and adjudged by the court that the plaintiff have and recover of and from the defendant the sum of $16,541.31, with interest on $15,065.51 of said sum from this date at the rate of seven per cent per annum together with all costs, and that plaintiff have execution hereof.
“It is further ordered that plaintiff be allowed to withdraw said note from the files upon filing a copy duly attested by the clerk of this court.”

The next day, January 20, 1906, the defendant White, through counsel appearing specially, filed a motion to set aside the foregoing judgment, and late on February 1, 1906, filed an amended motion, in this language:

“Now on this day comes J. D. White, the defendant, and appearing specially for the purposes of this motion only, moves the court to set aside and hold for naught a certain alleged judgment rendered against the defendant and in favor of the plaintiff on the 19th day of January, 1906, for $16,541.31, for the following reasons:
“First: The court had no jurisdiction of the subject-matter or over the defendant and had no power or authority to render the alleged judgment.
“Second: Said cause of action was filed on January 19, 1906, and immediately thereafter, and without notice to the defendant, the court undertook to render judgment against the defendant; that the defendant was not served with summons, neither did he enter his appearance in said cause or authorize any one else to enter his appearance therein for or on his behalf.
“Third: That C. E. Denham is associated with Ball & Ryland, attorneys for plaintiff herein; that the defendant never at any time authorized said C. E. Denham to represent him .in any. manner or to enter his appearance in this case, or to do anything whatsoever for or on his behalf in connection with this action; that the defendant had no notice or knowledge of the fact that the plaintiff had instituted an action against him or that said C. E. Denham pretended to act for him or had pretended to enter his appearance in said case until January 20, 1906, the day after the said pretended judgment was rendered.
“Fourth: That the defendant has a good and meritorious defense to said cause of action in that said note was given without consideration; that the defendant never received anything of value therefor; that long prior to the giving of said note the plaintiff loaned to the Winning Blair Millinery Company the sum of about $17,000; that after said money was so loaned the plaintiff brought a suit in this court against said Winning Blair Millinery Company and had the defendant herein appointed receiver of said Winning Blair Millinery Company; that after the defendant was appointed receiver, the plaintiff prevailed upon him to execute his note to the plaintiff for the amount which he was owing to the plaintiff, the Winning Blair Millinery Company; that the defendant received no part of said money, neither did the plaintiff part with anything of value at the time the defendant executed said note, and that the defendant was in no way liable to the plaintiff on the indebtedness due for the plaintiff from Winning Blair Millinery Company.”

This motion was verified by the affidavit of defendant White.

The motion was heard upon affidavits, the substance of which is not necessary to state at this point. The motion was overruled, and the defendant has appealed from the judgment against him, set out above. Points made will be noticed in the course of the opinion.

•I. Analyzed and abbreviated the power which this alleged warrant of attorney purports to grant is, “to appear for us ... in an action on the above note brought against us ... in any court of record ... to waive the issuing and service of process against us . . . and confess judgment . . . against us . . . and also in behalf of us . . . to waive and release all errors in said proceedings and judgment, and all proceedings, appeals or writ of error thereon.”

Under this power, Mr. Denham, as shown by his writing above, entered appearance, waived the issuance and service of process, admitted the allegations of the petition to he true, and consented that judgment might be entered for plaintiff and against defendant as prayed in the petition.

The foregoing is the authority attempted to be exercised by Mr. Denham and the manner of its execution. It will be noticed that he admits the truth of the charges made in the petition and consents that judgment should be entered as prayed. The court, however, does not seem to have been satisfied with this course, if we are permitted, which we are, to gather its version of the matter from the judgment in the case. By the judgment it appears that Mr. Denham, after entering' appearance and waiving process and service thereof, only consented “that this cause may be taken up and heard.” That the court fully understood that he (Denham) made no further consent is evidenced by its judgment in which it is stated, “and said cause duly coming on to be heard, on the pleadings and evidence, and the court having heard and considered the same [meaning the pleadings and evidence] and being fully advised in the premises, finds for the plaintiff,” etc.

It must be apparent that the power of such an instrument as the one before us should be construed with minute strictness. Not only so but the proceedings thereunder, if valid at all, must be within the strict letter of the warrant of attorney. [23 Cyc. 705; Cushman v. Welsh, 19 Ohio St. 536; Sewing Machine Co. v. Radcliffe, 137 U. S. 287; Bank v. St. John, 5 Hill (N. Y.) l. c. 500; Grubbs v. Blum, 62 Tex. 426; Tidd’s Practice (4 Am. Ed.), 551.]

• If the court acquired jurisdiction of the defendant at all it was by virtue of the terms of the instrument before us. And if the court could act at all it must act within the strict purview of the instrument giving it jurisdiction, and enter a judgment as hy the terms of the instrument directed, and not otherwise. [Cushman v. Welsh, supra.]

The only judgment which could be entered under the authority granted and given was one by confession. The judgment before us does not purport to be, a judgment by confession, or even a judgment by consent. Upon the face of it, it is a judgment upon and after a trial in which' evidence was heard. So says the judgment and there being nothing in the record showing the facts in this regard antedating the entry of judgment, the recitals are conclusive. A judgment upon a trial was beyond the scope of the powers granted in the alleged warrant of attorney. Such a judgment is not a judgment by confession. [Holliday v. Myers, 11 W. Va. l. c. 298.]

In the Holliday case, supra, the court had under consideration the following judgment: “This day came the parties, by their attorneys; and the defendants by their attorney, withdrew their plea at a former day pleaded; thereupon the plaintiffs having proved their cause, it is considered by the court that the plaintiffs recover against the defendants, Joseph Myers and James M. Johnson, $301.72, with interest thereon from the 4th day of January, 1872, till paid; also their costs by them in their behalf in this cause expended.” Of this judgment the court makes some remarks which are peculiarly applicable to the judgment before us. The language used is: “ This judgment, it seems to me from its form and language, is a judgment rendered upon proof of the cause of action made to the court and not upon confession of judgment. This judgment is expressed upon its face to be a judgment rendered ‘upon proof of the cause’ made to the court, and being so expressed, it should therefore be so considered. The judgment is not such a judgment as is entered by non sum informatus • or by confession or cognovit actionem• or by default for defect of plea after appearance; or nil dicit as it is termed; or by default under our statute for failure to appear after having been duly summoned.”

We conclude therefore that even if it be granted that the written instrument involved in this suit was sufficient to give the court jurisdiction of the person, yet the judgment upon its face is not a judgment by confession and is unauthorized by the warrant of attorney, and therefore should for this reason be reversed.

II. But going beyond the mere technical question in our preceding paragraph discussed, we come to a question urged which goes to the very root of this case, and whilst new and novel in this State, we do not feel that the cause should be disposed of without discussing and passing upon that question. Defendant urges that our statute prescribes the method by which judgments by confession shall be entered, and that inasmuch as this warrant of attorney does not comply with the statute, there is no authority for the judgment. Contra the plaintiff contends that this State adopted the common law, and that the statutes in question are not exclusive, but only cumulative, and that this proceeding was authorized by the common law. This necessitates an investigation of the old common-law warrant of attorney, for the instrument before us is but the outgrowth of that ancient document. It began as a pure matter of procedure, and in infancy was not broad and comprehensive as in later years. Originally, parties litigant had to appear in person and not otherwise. Of this, Blackstone, 3 Blackstone 25, says: ‘ ‘ Formerly every suitor was obliged to appear in person, to prosecute or defend his suit (according to the old Gothic constitution), unless by special license under the King’s letters-patent. This is still the law in criminal cases.- And an idiot cannot to this day appear by attorney, but in person; for he hath not discretion to enable him to appoint a proper substitute; and upon his being brought before the court in so defenceless a condition, the judges are bound to take care of his interests, and they shall admit the best plea in his behalf that any one present can suggest. But, as in the Roman law, ‘cum olim in usu fuisset, alterius nomine agi non posse, sed, guia hoc non minimam incommoditatem habeat, caeperunt homines per procúratores litigare,’ so with us, upon the same principle of convenience, it is now permitted in general, by divers ancient statutes, whereof the first is statute Westm. 3, c. 10, that attorneys may be made to prosecute or defend any action in the absence of the parties to the suit. ’ ’

So too, says Tidd, 1 Tidd’s Prac., p. 92: “At common law, the plaintiff and defendant must, in general, have appeared in person; and could not have appeared by attorney, without the King’s special warrant, by writ or letters patent.”

This warrant of attorney to sue for defendant is thus defined in Cyclopedia Law Dictionary, p. 693: “A special warrant from the Crown, authorizing a party to appoint an attorney to sue or defend for him. [Glib., C. P., 32; Bl. Comm. 25.]”

Later, the parties themselves gave written authority to the attorney who was to begin or defend a suit, and the same author thus defines this character of warrant of attorney: “A special authority given by a party to his attorney, to commence a suit, or to appear and defend a. suit, in his behalf. These warrants are now disused, though formal entries of them upon the record were long retained in practice. [1 Burrill’s Prac., 39.]”

This right of the parties to appoint their attorneys had its birth by an early statute. Tidd says: “And now by the statute of Westm. 2 (13 Edw. L), c. 10, a general liberty is given the parties, of appearing by attorney.”

■ It also appears that even when the parties began appointing attorneys it was done by parol in open court, but later by Writing denominated warrants of attorney. [1 Tidd’s Prac., p. 93.] The author there says: “Attorneys were anciently appointed in court, when actually present; but they are now usually appointed out of court, by warrant of attorney; which should regularly be in writing; but an authority by parol is said to be sufficient to support a judgment; and even if an attorney appear without warrant, it is a good appearance as -to the court, though he is liable to an action.”

■ In Burrill’s Prac., vol. 1, p. 39, it is said: “Attorneys were formerly appointed by special warrant in writing, and previous to the revised statutes, a memorandum of such warrant was always required to be entered on the record. But this practice is now abolished, and attorneys are generally appointed by parol.”

Of course, the writer is discussing the early New York practice, but as Burrill says: • “The practice of the Supreme Court of -this State was originally derived from that of the superior common law courts of England,” his remarks are applicable to the question before us.

Progressing, these warrants of attorney took on a commercial phase, and were used as security for debt. Of this Blaekstone (3 Blackstone, 397), says: “And therefore it is very usual, in order to strengthen a creditor’s security, for the debtor to execute a warrant of attorney to some attorney named by the creditor, empowering him to confess a judgment by either of the ways just now mentioned [by nihil dicit, cognovit actionem, or non sum informatics] in an action of debt to be brought by the creditor against the debtor for -the specific sum due; which judgment, when confessed, is absolutely complete and binding; provided the same (as is also required in all other judgments) be regularly docquetted, that is, abstracted and entered in a book, according to the directions of statute 4 & 5 W. and M., c. 20.”

So too says Tidd (1 Tidd’s Prac., p. 545): “The security-usually given by the defendant to the plaintiff, on compromising an action, and which is also frequently given where no action is depending, is a warrant of attorney; so called, from its authorizing the attorney or attorneys, to whom it is directed, to ap: pear for the defendant, and receive a declaration, in an aetion to be brought against him, and thereupon to confess the same action, or to suffer judgment therein to pass by default, etc.”

These particular warrants of attorney are thus defined in Cyclopedia Law Dictionary: “An instrument in writing, addressed to one or more attorneys therein named, authorizing them, generally, to appear in any court, or in some specified court, on behalf of the person giving it, and to confess judgment in favor of some particular person therein named, in an action of debt, and usually containing a stipulation not to bring any writ of error, or file a bill in equity, so as to delay him.”

Speaking of the English practice under the latter-day commercial warrants of attorney, Mr. Tidd (1 Tidd’s Prac., 552) says: “Within a year and a day next after the date of the warrant, judgment may be entered of course, without applying to the court, or a judge. But if it be not entered within that time, the Court of King’s Bench must be moved in term time, or, if the warrant of attorney be not above ten years old, an application may be made to a judge in vacation, for leave to enter up the judgment, on an affidavit of the due execution of the warrant of attorney, that the debt, or part of it, is still due, and that the parties are living. This affidavit may be properly entitled in the cause in which judgment is entered up; and it ¡seems that an affidavit sworn before a justice of the peace in Scotland, is admissible if the handwriting of the justice be authenticated. If the warrant of attorney be above ten years old, the application ttrast be made to the court; and where it is above twenty years old, there must in general be a rule to show cause, founded on an affidavit, stating facts which rebut the presumption of payment.”

Such judgments on fresh warrants of attorney were entered by the clerk without knowledge of the court. A slight recognition of such a judgment in this State is found in Finley v. Caldwell, 1 Mo. 512, but this was evidently under statute. Vide, Holmes v. Carr & Co., 1 Mo. 56.

' Such warrants of attorney, at common law, were frequently used by imprisoned debtors, who authorized confession of debt and compromises to be made thereunder. When under arrest such parties' were not allowed to sign the warrant of attorney without there being present an attorney with whom he could advise.

We have thus gone into the details of what we conceive to be the origin of the character of instrument we have before us, so that we may discuss with intelligence the validity of the same in the light and spirit of our laws. First, it will be observed that in infancy the warrant of attorney was purely a question of practice, and as a matter of fact was the subject of many ancient court rules and statutes. Later it assumed the role of security for debt. The validity of a Missouri instrument of this kind has never been before this court. We have often had before us judgments of other State courts rendered upon such an instrument, and under the full-faith-and-credit clause of the Federal Constitution have held such judgments good. [Crim v. Crim, 162 Mo. 544, and cases cited.]

We have been cited to the ease of Genestelle v. Waugh & Corthron, 11 Mo. 367, as a case in point. We have examined the original files in that case. The point here raised was neither raised nor discussed in that case. Genestelle had executed his three several negotiable promissory notes to Waugh & Corthron of date April 14, 1844. These notes were in the shortest and simplest form for such instruments and due respectively in sixty days, four months and six months. On April 16, 1844, Genestelle signed a written instrument in the presence of B. B. Dayton by which ha authorized John R. Shepley and four others', specifically named, “or any other attorney of any court of record in the State of Missouri, to appear in court during term time and receive a declaration or petition in debt on said note and to confess said action and confess judgment.” It also authorized a release of errors. There were three of these instruments, one for each note and in which the note was set out. Dayton made affidavit to the signature of Genestelle to each, and the three notes, with the three powers of attorney, were all filed with a petition on April 21, 1845. The judgment was entered for the sum of the three notes. Motion was made to set it aside on several grounds, hut the only ground urged in the short brief filed in this court, was that neither of the three powers of attorney authorized the confession of this lump judgment. That is the only question passed upon here.

We have found also the' case of Wood v. Ellis, Admr., 10 Mo. 382, wherein there was a confession of judgment by attorney, but in this case an examination of the files shows a plain note executed July 23, 1840, due one day after date, and’on February 26, 1841, a power of attorney in fact was executed to Uriel Wright and two others to appear at the March term of the Lewis Circuit Court and confess judgment and release errors. The power was executed hy Wright. The note was signed by Grlinn & Reese'and W. S. Pemberton. The power of attorney was signed by John D. Glinn and W. S. Pemberton, but Pemberton’s name was not in the body of the instrument. Of this defect the administrator of Pemberton sought to take advantage. So that the question before us was not in that case.

In neither of these cases was the question raised as to whether or not the instruments were sufficient to give the court jurisdiction over the makers of the note, nor were the notes and instruments used therewith in form as here. But even had they been in form as here the point here urged was not there urged. So that we repeat that the question is new to this State, save and except what is said by Valliant, J., in his dissenting opinion in Crim v. Crim, supra. The majority opinion in the Crim case deals only with the question as to whether or not we should give full faith and credit to an Ohio judgment had upon a contract of this character, when sued upon in this State, and we held that we should give such credit, Valliant and Robinson, JJ., dissenting.

' Recognizing, as we do, that it is settled in this State that full faith and credit will he given to the judgments of other States when had upon contracts’ of this character, yet that does not mean that we have held that such an instrument is valid under the laws of this State, and if- executed in this State, would be enforced by our courts. To our mind such an instrument is contrary to the public policy of Missouri, as we gather such public policy from the laws of the State, so that we heartily concur in the following from Judge Valliant’s opinion in the Crim case:

“The so-called authorization would certainly not be recognized as valid under the laws of this State, not because we do not recognize the right of a man to appoint an attorney in the regular way to enter his appearance in a suit in court, even for the purpose of suffering judgment to go against him, but because it is against the policy of our law to permit a man, when entering into an obligation, to bargain away his right to be heard in court, should a question ever arise between him and his adversary in relation to it. A man who has signed a paper of that kind, if it is valid, is completely at the mercy of the holder, whatever the merits of the case may be; because the holder may go to any forum in the United States and select any attorney whom he chooses and have judgment entered against the maker, who does not know that he is being sued. ’ ’

If it be considered as a question of' procedure in our courts to thus appoint an attorney, it finds no support under our Code of Procedure, or the Attorney’s Act of the State. Of the Code, section 649, Revised Statutes 1899, says: “Parties may prosecute and defend their own suits in proper person or by attorney. It shall not be necessary to file any warrant of attorney to authorize any attorney to appear in any court for either party to an action brought therein, except in cases where it shall be specially required by law.”

Our practice has never required a written warrant of attorney from a client to a licensed attorney, whether he be called upon to sue or defend.

And if this instrument be considered as a security for a debt, as it was by the common law, it has never so found recognition in this State. The policy of our law has been against such hidden securities for debt. Our Recorder’s Act is such that instruments intended as security for debt should find a place in the public records, and if not, they have often been viewed with suspicion, and their bona-fides often questioned.

Nor do we think that the policy of our law is such as to thus place a debtor in the absolute power of his creditor. The field for fraud is too far enlarged by such an instrument. Oppression and tyranny would follow the footsteps of" such a diversion in the way of security for debt. Such instruments procured by duress could shortly be placed in judgment in a foreign court and much distress result therefrom.

Again, under the law the right to appeal to this court or some other appellate court is granted to all persons against whom an adverse judgment is rendered, and this statutory right is by the instrument stricken down. True it is that such right is not claimed in this case, but it is a part of the bond and we hardly know why this pound of flesh has not been demanded. Courts guard with jealous eye any contract innovations upon their jurisdiction. The instrument before us considered in the light of'a contract, actually reduces the courts to mere clerks to enter and record the judgment called for therein. By our statute, section 645, Revised Statutes 1899, a party to a /written instrument of this character has the right to show a failure of consideration, but this right is brushed to the wind by this instrument and the jurisdiction of the court to hear that controversy is by the contract divested. In 9 Cyc. 510, it is said: “Agreements whose object is to oust the jurisdiction of the courts are contrary to public policy and will not be enforced. Thus it is held that any stipulation between parties to a contract distinguishing between the different courts of the country is contrary to public policy. The principle has also been applied to a stipulation in a contract that a party who breaks it may not be sued, to an agreement designating a person to be sued for its breach who is nowise liable and prohibiting action against any but him, to a provision in a lease that the landlord shall have the right to take immediate judgment against the tenant in ease of a default on his part, without giving the notice and de-, mand for possession and filing the complaint required by statute, to a by-law of a benefit association that the decisions of its officers on a claim shall be final and conclusive, and to many other agreements of a similar tendency. In some courts, any agreement as to the time for suing different from the time allowed by the statute of limitations within which suit shall be brought or the right to sue be barred is held void.”

The contract not only provides that the plaintiff in the contemplated proceeding for a mere formal entry of judgment, may go to any court of record in this State, but may go to any court of record elsewhere. Such contracts have received the condemnation of this court. In the ease of Reichard v. Manhattan Life Ins. Co., 31 Mo. l. c. 520, this court said: “The next error is that the court refused to instruct the jury that, if they found from the evidence that when application was made for the policy of insurance the applica*,-_s waived all right to bring any action for any claim whatever arising under said policy except in the courts of the State of New York, then the plaintiff cannot recover. We think the court very properly refused this instruction, not only upon the ground that the agreement to waive the right to sue in our courts is void, as against public policy, but because it is in direct contravention of a statute of this State passed for the government and regulations of agencies of foreign insurance companies approved December 8, 1855.”

We shall not pursue this question farther. This contract, in so far as it goes beyond the usual provisions of a note, is void as against the public policy of the State, as such public policy is found expressed in our laws and decisions. Such agreements are iniquitous to the uttermost and should be promptly condemned by the courts, until such time as they may receive express statutory recognition, as they have in some States.

III. Before concluding, one other matter should be mentioned. At most the latter clause of the judgment note is but what is known as a warrant of attorney, as herein elsewhere stated. The power granted is to confess judgment. Now, even if it be said that there was full common law authority for such an instrument, until our Legislature had acted upon the subject in such a manner as to abrogate the common law, yet when we examine our statutes we find the subject fully covered by statute, which statute necessarily abrogates the common law. What is the subject-matter? Nothing, save and except the mode and manner of entering a judgment by confession. This mode and manner is fully covered by Revised Statutes 1899, sections 789 to 792, inclusive, which read:

“Sec. 789. A judgment by confession may be entered without action, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner herein prescribed.
“Sec. 790. A statement in writing must be made, signed by tbe defendant, and verified by affidavit, to tbe following effect: First, it must state the amount for wbicb tbe judgment may be rendered, and authorize tbe entry of judgment thereon; second, if it be for money due, or to become due, it must state concisely; tbe facts out of wbicb it arose, and must show that tbe sum confessed therefor is justly due, or to become due y third, if it be for tbe purpose of securing tbe plaintiff against a contingent liability, it must state concisely tbe facts constituting tbe liability, and must show that tbe sum confessed therefor does not exceed tbe same.
“See. 791. Such statement and affidavit shall be filed, and tbe court shall render judgment for tbe amount confessed, and cause tbe same to be entered upon tbe records, first being satisfied of tbe identity of tbe defendant, if present, or, if not present, that be executed tbe same in writing and made tbe affidavit hereinbefore required. ’ ’

Tbe judgment before us shows that it was not procured through either of the methods prescribed by these statutes. When this contract uses tbe words “confession of judgment” it must be construed to mean by tbe methods prescribed by statute for confession of judgment. Authorities from other States lend but little light, because their statutes are different.

A .reading of tbe statutes above but shows tbe public policy of tbe State to obviate frauds. Not© the precautions requiring affidavits and acknowledgments, so as to have everything in tbe open rather than in tbe dark.

From what has been said, it follows that tbe circuit court never bad jurisdiction of tbe defendant, and' tbe judgment is reversed.

All concur.


author: LAMM, P. J.

text:
    JAMES G. GRACEY v. CITY of ST. LOUIS, Appellant.
    Division One,
    May 31, 1909.
    1. SECOND APPEAL: Questions Settled. On a second appeal or writ of error on the same facts and pleadings, the appellate court will not consider questions determined on the first ap-' peal.
    2. REMANDED WITH DIRECTIONS: Mandatory. Where on the first appeal, the Supreme Court reversed and remanded the cause in pursuance to a stipulation that if another cause submitted at the same time were reversed and remanded for new trial this was to be also, but added the statement that were it not for that stipulation "we would reverse and remand with directions to enter up judgment for plaintiff,” the trial judge, on a resubmission of the cause to him, without a jury, on the same pleadings and on the same evidence, was bound to enter up judgment for plaintiff.
    3. BOILER INSPECTOR: Assistant: Removal. A deputy appointed by the Inspector of Boilers and Elevators is, under the charter of St. Louis, an officer, with a fixed term of four years, at a salary of $1200, and cannot be removed without cause, and if summarily discharged can recover the salary for- the balance of the term. And being an officer, he cannot be considered a mere assistant officer or an assistant to an officer.

      Appeal from St. Louis City Circuit Court — Hon. Bobt. M. Foster, Judge.
    Affirmed.

      Charles W. Bates and Benjamin H. Charles for appellant.
    Plaintiff was an assistant officer,, removable, either first, by the officer under whom he worked, at his pleasure, or secondly, by the mayor, for cause, i. e., after notice, charges, specifications and a formal trial. St. Louis Charter, art. 4, sec. 14 (2 R. S. 1899, p. 2492). The language used is sweeping and unequivocal: “The assistants of any officers .... may be removed for cause by the mayor, or by the officer under whom they work at his pleasure.” And this provision has. all the force and effect of a legislative enactment. St. Louis v. Fisher, 167 Mo. 660'.

      James R. Van Slyke for respondent.
    (1) The parties, pleading and evidence in this appeal being the same as in Gracey v. St. Louis, 213 Mo. 384, all questions of law which were raised or could have been raised on the former appeal, are now determined by that decision and the opinion is res adjudicata as to all questions presented by the appellant at this time. Kansas City Exposition Dr. Park v. Kansas City, 174 Mo. 425; State to use v. O’Neil Lumber Company, 170 Mo. 7; Winters v. Knights of Pythias, 101 Mo. App. 550; Hamilton v. McLean, 169 Mo. 51; Chapman v. Railroad, 146 Mo. 481; Baker v. Railroad, 147 Mo. 149; Van Stewart v. Miles, 105 Mo. App. 242. (2) Plaintiff’s position being for a definite term and at an annual salary, he was under the charter and ordinance a city officer, and as such could be dismissed or removed only for a cause. Gracey v. St. Louis, 213 Mo. 384. (3) Plaintiff, by reason of the term salary and duties, was a city officer. Gracey v. St. Louis, 213 Mo. 384; City ex reí. v. Maroney, 191 Mo. 531. (4) Plaintiff being a city officer and not being removed for cause, he is entitled to his salary for the unexpired term. Gracey v. St. Louis, 213 Mo. 384; City ex rel. v. Walbridge, 153 Mo. 197.
   LAMM, P. J.

— This is a second appeal. Here before on plaintiff’s appeal (213 Mo. 384), the judgment was reversed and the cause remanded with directions “to set aside the nonsuit and proceed with the cause in accordance with this opinion.” When here first it was heard with three companion cases. Stipulations were filed in them to the effect that (as to them) this court should reverse and remand with directions to enter up judgment for plaintiff, or reverse and remand for a new trial, or affirm — as might be done in the principal case. As indicating the scope and tenor of what was ruled in the principal case, in commenting upon the foregoing stipulations, we said (p. 401): “If such stipulations had been filed in the case at bar, we would reverse and remand with directions to enter judgment for plaintiff — this because the trial court erred in not setting aside the nonsuit and erred in giving the peremptory instruction; and on this record we think plaintiff would have been entitled to a peremptory instruction himself.”

When the case went below it was submitted on the same pleadings and the same facts under the following agreement: “The parties, in open court, consent to the waiving of a jury and that the case may be heard by the court; that the parties have no further evidence to offer, and it is agreed by and between the parties hereto that the case may be submitted on the evidence contained in the bill of exceptions in the former appeal of this case filed on January 8, 1906, and such declarations of law as the parties may see fit to offer.”

Under that submission, the evidence preserved in the original bill of exceptions was read into the record. Thereupon a mandatory instruction was asked and given on behalf of plaintiff, and one asked and refused on behalf of defendant. In the latter, the court was asked to say that under the pleadings and the evidence the plaintiff was “an assistant officer,” and was removable by the chief inspector of boilers and elevators at pleasure. Defendant excepted to the ruling on both instructions and by due intermediate steps brings the case again here.

It was held on the first appeal that under the ordinances of the city of St. Louis, the plaintiff had a fixed “tenure of office” (to-wit, a term of four years), at a fixed annual salary of $1,200; that he was bonded as a “city officer” and performed his official duties under an “oath of office;” that his public position was denominated and dignified as “an office” by the ordinances and his duties were designated and earmarked as “official duties;” and that he was removed without cause four months before his term expired. It was held, further, that whether the question of his being an officer was referred solely to the charter and ordinances or to the definitions of the general law, the result would be the same, vis., that he was an officer and could only be removed during his prescribed term for cause and on due process of law.

While in the former case we did not discuss the distinction between an officer and a mere assistant officer or an assistant to an officer, yet the point now made by defendant city was made by the same learned counsel in that and was necessarily involved in the determination reached. The charter provision now relied on was there relied on and was held in judgment. In this? connection it is not without significance that no motion for rehearing was filed in the former case. The absence of that motion shows that counsel apparently deemed the point decided and acquiesced in the ruling.

The case at bar is easily distinguished from Magner v. St. Louis, 179 Mo. 495, and the decisions of the St. Louis Court of Appeals therein cited. That we felt no call in the former opinion to swell its volume by pointing out distinctions appearing plainly in those cases and determinative of them and which are quite lacking in the case at bar, amounts to nothing. This because the contention there raised by defendant city, that those cases were determinative of this litigation, was bound up in the former judgment and ruled against defendant. The holding on the former appeal that plaintiff was an officer, under applicable ordinance and charter provisions, is preclusive of the idea, that he was a mere assistant, removable at pleasure as now argued.

Under such circumstances, when the case went down with directions to the trial court to proceed in accordance with the opinion and with the suggestion that on the record before us plaintiff was entitled to a peremptory instruction, the trial judge was bound by those directions. He, on the one hand, would have been derelict in duty and subject do criticism if he had not followed directions, and, on the other hand, ought not to be convicted of error in the same case on the same facts and on the same pleadings, for obeying the upper court. The rule in that regal’d is soundly bedded in principle and precedent. On a second appeal or writ of error on the same facts and pleadings the appellate court will not notice questions determined in the previous decision. All such are res judicata and closed. For the practical administration of justice, the former decision is the law of the case. [Chambers’ Adm. v. Smith’s Admr., 30 Mo. 156; Overall, Admr. v. Ellis, 38 Mo. 209; Baker v. Railroad, 147 Mo. 140 et seq.; May v. Crawford, 150 Mo. l. c. 524; Chapman v. Railroad, 146 Mo. l. c. 494; Hayward v. Smith, 187 Mo. l. c. 476; Viertel v. Viertel, 212 Mo. l. c. 574.]

There must he an end to a lawsuit. He sues in vain who can have no final judgment and there would be no end and no final judgment if appeal after appeal were to be allowed in the same case on like facts and pleadings. [See remarks of Mr. Justice Grier, arguendo, in Roberts v. Cooper, 20 How. l. c. 481.]

Like all general rules, the one in hand has its exceptions. Where manifest and far-reaching error has been committed, no castiron or immutable rule bars a re-examination of a question illy decided. In such case it goes without saying that this court, as a debt due to justice and as one of the foundation stones of its own dignity, reserves to itself the right to reconsider, reexamine and redetermine. [Padgett v. Smith, 206 Mo. l. c. 311, et seq.; Ibid., 205 Mo. l. c. 125; Hamilton v. Marks, 63 Mo. l. c. 172; Wilson v. Beckwith, 140 Mo. l. c. 369.]

Counsel indulge in fears of evil results bound to flow from the doctrine of the original case. But these fears, it may well be, are somewhat due to the versatility and lively imagination of counsel. They find no substantial place in the experience of mankind and do not bring the case within any exception to the rule we have just discussed. Very great, good, just and wise men, seeking the public weal, have been over that ground long ago and have held views tending to assure good and not evil results.

Those departments of government, Federal, State or municipal, run by officers having a fixed tenure and subject to removal for cause are quite as well managed, from the standpoint of the well-being of the community, as other departments subject to a hunger sprung from the sharp and whimsical vicissitudes of political fluctuations, or controlled by the unregulated disposal of place and patronage by chiefs of departments. If defendant city desires to strike down the right of officers of the class under consideration to hold a fixed tenure and to make an official term depend on the mere personal and arbitrary say so of the head of the department, it can readjust its ordinances and, if necessary, its charter to subserve that end. Let the judgment be affirmed. It is so ordered.

All concur.