author: BROWN, J. WOODSON, J.

text:
    THE STATE ex rel. MERCHANTS RESERVE LIFE INSURANCE COMPANY v. CHARLES G. REVELLE, Superintendent of Insurance.
    In Banc,
    July 2, 1914.
    1. INSURANCE: Deceptive Policies. An insurance policy which in its main contractual part calls for a fixed and unchangeable premium, and which in other parts, hid away in small type, says that “if the premiums be insufficient to meet the requirements of the policy the company reserves the right to call for the difference necessary to meet the requirements and to fix the time for the payment thereof,’’ is calculated to mislead and to deceive persons who may purchase such policies; and such a policy does not “show that the liabilities of members are not limited to fixed or artificial premiums,” as required by Sec. 6955, R. S. 1909.

      Held, by WOODSON, X, concurring, that the separation of a clause in bold type on the front page of a policy calling for a fixed premium, from another clause in obscured type on the back thereof authorizing a variation in the amount of premium, if not intended to deceive the average man who desires assessment insurance, would have that effect, and would in effect perpetrate a fraud upon the applicant, either intentional or in law.
    2. --: -: Foreign Company: License to Do Business. The Superintendent of Insurance cannot be compelled to issue to a foreign insurance company a license to do business in this State on the assessment plan, whose policies are calculated to deceive, in that in their main part they call for a fixed premium, and in another they authorize the company to vary the assessment according to the needs of the company.'
    Mandamus.
    Writ denied.

      A. T. Dumm for relator.
    (1) Mandamus is the proper remedy in tliis case. State ex rel. v. Cook, 171 Mo. 348; State ex rel. v. Van-diver, 213 Mo. 187; State ex rel. v. Vandiver, 222 Mo. 206. (2) The demurrer to the petition for the writ (standing as and for the writ itself) admits all the material facts alleged therein. Dodson v. Lomax, 113 Mo. 555; Goodson v. Goodson, 140 Mo. 206; Rodgers v. Ins. Co., 186 Mo. 248; State ex rel. v. Reynolds, 121 Mo. App. 705. (3) Relator is an assessment insurance company, and the policy which it proposes to write in Missouri is a contract of insurance on the assessment plan, as such contract is defined by the laws of this State. Secs. 6950, 6955, R. S. 1909; Elliott v. Life'Ins. Co., 163 Mo. 132; Hanford v. Ben. Assn., 122 Mo. 50; Westerman v. Supreme Lodge, 196 Mo. 715; Haydel v. Life Assn,, 98 Fed. 200; Haydel v. Life Assn., 104 Fed. 718, 44 C. C. A. 169; Hayden v. Life Ins. Co., 136 Fed. 285; Crosby v. Mut. Reserve, 78 N. Y. Supp. 237; Smoot v. Life Assn., 138 Mo. App. 438; McCoy v. Life Assn., 134 Mo. App. 35.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for respondent.
    (1) The character of an insurance company is determined by the policy it issues. Toomey v. Knights of Pythias, 147 Mo. 129; Jacobs v. Life Assn., 146 Mo. 523; Falkens v. Ins. Co., 98 Mo. App. 480. (2) Relator is not an assessment company, and the certificate filed with respondent is not a contract of insurance on the assessment plan, as defined by the laws of Missouri. Williams v. Insurance Co., 189 Mo. 80; Aloe v. Insurance Co., 164 Mo. 687.
   BROWN, J.

— Mandamus to compel the State Superintendent of Insurance to issue a license to relator, to write life insurance in this State upon the assessment plan.

Relator, in appropriate averments, states that it is.an insurance company incorporated in the State of Illinois, and authorized under the laws of that State to write life insurance upon the assessment plan. After alleging that it has complied- with the requirements of section 6955, Revised Statutes 1909 (which section designates what a foreign life insurance company must do to entitle it to a license to transact business in this State on the assessment plan), relator avers that the respondent has refused to issue to it a license to do business in this State. '

In his return respondent admits that the application of relator for license was made to him in due form. He, however, asserts that the relator is not entitled to the license demanded, for the reason that the policies or contracts of insurance which relator proposes to write and sell in Missouri are not in conformity with the provisions of said section 6955, in this: That said policies or contracts fail to “show that the liabilities of the members (policy holders) are not limited to fixed or artificial premiums, ’ ’ as required by said section.

The alleged failure to recite in the policies which relator proposes to write the fact that the liabilities of the holders thereof “are not limited to fixed or artificial premiums’’ constitutes, under the law and pleadings, the sole issue for our consideration.

All that part of the proposed policies which appears above the signatures of the officers is on the first-page thereof and in large plain letters about one-fourth of an inch in size, and reads as follows:

MERCHANTS RESERVE LIFE INSURANCE COMPANY
Incorporated Under the Laws of the State of Illinois
No. - $2000.
Hereby Insures the Life of - of -- State of-and agrees to pay Two Thousand Dollars immediately to - if living, otherwise to the insured’s executors, administrators or assigns in the manner herein provided, at the' Home Office pf this Company, in the City of Chicago, Illinois, upon the presentation of this policy and the receipt and acceptance of satisfactory proofs of death of the insured. This contract for Insurance is made in consideration of the application therefor which is hereby made a part'of this contract. And in further consideration of the sum of - Dollars premium as agreed between the parties hereto and according to the rates specified herein, be’ag the premium for Insurance for the period terminating on the — day of - 19 — , and in further consideration of the Payment on said last-named date to this Company at its designated depository as the premium for Whole Life Insurance of the sum of - Dollars and a like sum quarterly thereafter, which shall be due on the first days of January, April, July and October of' each year during the continuance of this policy.
This policy is issued and accepted subject to the benefits, stipulations and conditions, as set forth on the following pages which form a part of this contract as fully as if they were recited at length over the signatures hereto affixed.
In Witness Whereof (the usual attesting clause).

Relator attacb.es to its application seven copies of the policies which it proposes to write and sell in Missouri, and seems to concede that there is nothing -on the front page of its proposed policies which would indicate that the premiums to be paid thereunder are not fixed and unchangeable, and for that reason in contravention of the provisions of section 6955, Revised Statutes 1909, hereinbefore noted.

Relator, however, insists that while the front page of its policies may indicate that the premiums to become due thereunder are fixed and agreed upon, yet the application of the insured and the stipulations and conditions printed on the back or outside of said proposed policies clearly show that the relator reserves the right to call for additional payments in case the premiums specified on the front page of such policies are insufficient to meet the requirements of said policies.

In relator’s brief it is asserted that in the seventh paragraph, under the caption, “Benefits, Stipulations and Conditions,” on the back of relator’s proposed policies, the following condition is found:

“Should the premium be insufficient to meet the requirements of this policy, the company reserves the right, in compliance with the law of its incorporation, to call for the difference necessary to meet the requirements and to fix the time for the payment thereof.”

We have carefully examined all that is printed or written on the proposed policies under the caption, “Benefits, Stipulations and Conditions,” and find that the ahove-quoted condition only appears on one of said proposed policies under that caption. However, in six of said proposed policies, in the 'eleventh paragraph, printed under said caption, the following is found:

“Stipulated Premium. Each policy holder shall pay quarterly fixed sums, graduáted according to his age at entrance.”

The above paragraph, instead of showing that the premiums are not fixed and definite, tends to show exactly the opposite, i. e., that the premiums are fixed “according to the age at entrance” which recital, of course, announces the same rule under which contracts of insurance are written in the old line companies.

We have, however, found that the quoted condition which relator cites, is inserted in the printed applications to six of said proposed policies. In said six policies this condition is printed near the middle of a paragraph of the applications, just preceding the line on which the insured is supposed to sign his name.

• This condition upon which relator relies as tending to prove that it is doing business on the assessment plan is literally buried in a paragraph printed type so small that 380 words are inserted in a space seven-eighths of an inch wide and nine and three-quarters inches long. If the purpose o'f the relator was to place this condition so that it would be overlooked by persons signing the applications and purchasing the policies, then its efforts in that behalf would undoubtedly be a success. On one of the blank policies attached to relator’s application for license, the before-mentioned condition as to the contingent premiums is mt inserted in the application, but is found under the caption, “Benefits, Stipulations and Conditions” (on the back of said proposed policy). The face of said last-mentioned policy, however, is the same as the one hereinbefore set out in full.

OPINION.

I. Relator relies chiefly upon the ease of Westerman v. Supreme Lodge, 196 Mo. 670, l. c. 670, l. c. 715, and the numerous authorities referred to in that opinion, where the rule is announced that a stipulation for premiums to become due upon the happening of certain contingencies that may arise in the future will serve to define the status of the company as one doing business under the assessment plan, notwithstanding that in such policy is also found a provision which calls for fixed premiums.

Respondent relies, in a large measure, upon the rule announced by Division One of this court in the case of Williams v. Insurance Co., 189 Mo. 70.

We have not overlooked the case of Westerman v. Supreme Lodge, supra, but the facts in that case are not the same as in the case at bar. After carefully considering the forms of policies which relator proposes to issue and sell, if licensed to transact business in Missouri, we are convinced that the face of such proposed policies, particularly that part thereof printed above the signatures of the officers of the company, is so framed as to mislead and deceive persons who might purchase such policies.

The proposed policies all recite that the stipulated premiums noted on the first page thereof in large letters have been agreed upon by the parties according to the rates specified therein as the consideration for the insurance designated. By this language the fact that other premiums may be demanded is so obscured as to lead most anyone to believe that no other premium can be demanded, and that tbe payment of the amount named on the front page of said policies is all the obligation which the purchaser assumes. We do not think that such language in a policy is a compliance with section 6955, supra.

The law does not contemplate that obligations to pay several premiums,, some of them fixed and others contingent, may be scattered promiscuously and disconnectedly over all parts of a policy, so that, perchance, the purchaser may overlook some of them and thereby obligate himself to pay more than he intends to pay.

In order that a policyholder may not be deceived, if there is (as in these proposed policies) a definite premium named on the front page, the very paragraph or proviso which designates such stated premium should, in plain words, refer to the fact that under other provisions of the policy additional premiums may be called for and collected. When this is not done the policy fails to show that the premiums are not limited as required by section 6955, supra.

Instead of being so framed as to promote honesty and open fair dealing between the insured and the insurer, all the proposed policies attached to relator’s petition are so framed as to deceive the insured. We, therefore,. hold that the respondent was fully justified in, and, in fact, should be commended for, refusing to grant the license which relator seeks to obtain. The alternative writ of mandamus heretofore .issued will therefore be quashed, and the absolute writ demanded will be denied. It is so ordered.

All concur, Woodson, J., in separate opinion.

CONCURRING OPINION.

WOODSON, J.

— I fully concur in the opinion of my learned associate for the reasons stated by him; but also for the reason, that in my opinion the separation of the fixed premiums stated in the face of the policy from the conditional or additional premium mentioned on the back thereof if not intended to der ceive, would have that effect upon the average policyholder in this class of insurance. As a rule such holders are not financially able to take an old-line insurance policy, nor áre they able to employ counsel to examine and construe the various disconnected provisions referred to, and to so harmonize them as to intelligently inform the holder what his contract requires him to pay.

Why this separation of the two premiums relating to the same duty and obligation? If they are germane and relate to the same identical subject-matter, they should be stated together and not separated as this policy shows will be done if the company should be authorized to do business in this State. Of course, if the insured had sufficient legal and business capacity to read and understand this entire policy then no harm would be done; but as a rule they are deficient in those matters or never have the time or opportunity to investigate the policy in full, consequently, all such who only reád the large type in the front of the policy, which is easily read and understood, never see or understand the small print on the back thereof. This is clearly a perpetration of a fraud upon the applicant, either intentional or in law, no difference which in effect, and neither should be tolerated by a great State organized and existing to protect the life of her citizens and to secure unto them the rights of liberty and property, which includes the right to contract upon equal footings.


source: Caselaw Access Project

author: BOND, J.

license: Public Domain

text:
    THE STATE ex rel. MORRIS KELLY v. GUY D. KIRBY, Judge of Juvenile Court of Greene County.
    In Banc,
    July 2, 1914.
    1. PROHIBITION: No Joinder of Issues: Juvenile Court. If no demurrer to the return of respondent to a writ of prohibition or other adversary pleading is filed by relator, there is no joinder of issues; and in such condition of the pleadings, the court will not rule on grave questions raised by relator’s brief, such as the constitutionality of a statute creating a juvenile court and prescribing procedure therein. And that should especially be the course pursued where kindred acts of the Legislature have been upheld and respondent circuit judge in his return states that his purpose is to try the juvenile relator just as if he were prosecuted on the same charge in the criminal court, and it is manifest relator is not likely to be deprived of the rights and privileges granted to him under the Constitution and statutes.
    2. JUVENILE COURTS: Only One Existent Statute. At the present time there is only one valid existing statute concerning juvenile courts and the trial, punishment and care of negligent and delinquent children,’ and that is the Act of April 11, 1911, Laws 1911, p. 177; and an information against such a child should be based upon said statute, and the procedure should be in accordance therewith, which means that the trial is to be in accordance with “the practice and procedure prescribed by law for the conducting of criminal cases.”
    Prohibition.
    Writ denied.

      T. J. Delaney and Talma 8. Heffernan for relator.
    Relator questions generally the constitutionality of the act establishing the said juvenile court; and even if said court has a valid existence, relator questions the right of said court to proceed against this relator in the manner in which it' is attempting to do. Said Act creating said court, and the provisions thereof generally and the provisions thereof as affecting relator are violative of .the following provisions of the Constitution of Missouri: Secs. 5, 12, 22, 24, 30, Art. 2; Secs. 28, 53, 54, art. 4, subdiv. 2; Secs. 1, 38, art. 6. (1) The Act of April 11, 1911, Laws 1911, p. 177, contains more than one subject and the subject of prosecution for alleged crimes is not expressed in the title as required by section'28, article 4, Constitution. (2) The legislation is special in nature and in the manner of its passage (without notice, etc.), violates section 53, article 4, subdivision 2, and section 54, article 4. (3) Treating it as the creation of a judicial tribunal, it is unauthorized. The courts authorized by the Constitution do not include courts of this character, as is seen from enumeration in section 1 of article 6. (4) It attempts to prescribe procedure and authorizes procedure without indictment; without requiring full disclosure of the nature and character of the offense charged; without providing for hearing or bail, as required. by Secs. 12, 22, 24, 30, art. 2; sec. 38, art. 6. (5) It makes no certain provision for punishment, but lodges arbitrary power with the judge and even permits a dabbling with matters of religion under the guise of punishment or regulation, violative of section 5, article 2. (6) Under the guise of defining a “neglected child,” and a “delinquent child,” it attempts to arbitrarily, unnecessarily and oppressively interfere with the family relations, to interfere with the personal liberty of citizens under the age of seventeen, to punish children and deprive them of liberty for the shortcoming or crimes of the parents, or because of orphanage, to authorize restraint of liberty for indeterminate periods for acts not essentially criminal, to confer on the judge and probation officer powers and authority not regulated by law. In the general scope it is un-American and undemocratic. And while a duty exists to care for helpless and abandoned children, that system which treats them as quasi-criminal, and which fills the land with-men grown from institutional children must be contrary to a wise public policy. (7) From any viewpoint, it permits the trial and conviction for crime without due process of law and'does not permit one proceeded against thereunder the equal protection of the law, as provided by section 30 of article 2.
    STATEMENT.
    On the 11th day of February, 1914, the relator filed an application in this court for a writ of prohibition against Guy D. Kirby, judge of the juvenile court of Greene county, Missouri, alleging in substance that he was bom in 1897, and under the age of seventeen years, and that on the-day of --1913, he was arrested upon a charge of murder in the first degree committed upon the body of one Roy Johnson upon the 18th day of November, 1913.
    Relator states that a preliminary hearing of said charge was had before a justice of the peace of the city of Springfield, Missouri, and relator was held to answer said charge and such indictment or information as might be presented or filed against him in the criminal court of Greene county, Missouri, and entered into recognizance for his appearance in said criminal court; that said respondent, who is judge of the circuit court of Greene county, Missouri, was, under articles 6 and 7 of chapter 35, Revised Statutes 1909, judge also of the juvenile court of Greene county, Missouri. Relator further states that on the 21st of January, 1914, there was served upon him a summons of which the following copy was* appended to his application to this court for writ of prohibition:
    WRIT OP SUMMONS.
    STATE OP MISSOURI,
    County of Greene. f SS'
    IN THE JUVENILE COURT OP GREENE COUNTY, MO.
    THE STATE OP MISSOURI, To Morris Kelly, and parents:
    You are hereby commanded that setting aside all manner of excuse and delay, you be and appear in proper person before the Judge of the Juvenile Court in the City of Springfield on Monday at 9:00, the 2nd day of February, 1914, then and there to answer an information preferred by the State of Missouri at the relation of Sam M. Wear, against the said Morris Kelly, and wherein it is prayed that the said Morris Kelly be dealt with according to law as a delinquent child, a Certified' copy of which said information is hereto attached.
    And the person or officer serving this writ is hereby commanded to have the same at the time and place aforesaid certifying thereon his return.
    Attest: A true copy of the original writ. (L. S.)
    Witness, S. A. Reed, Clerk of the Circuit Court and Ex-officio Clerk of the Juvenile Court within and for Greene County, Missouri, with the seal of said Court hereto affixed, ' at the office in the City of Springfield, this 21st day of January, 1914.
    S. A. Reed, Clerk of Circuit Court and Ex-officio Clerk of Juvenile Court.
    [SEAL]
    And there was attached to the summons a paper of which the following is a copy, signed by Sam M. Wear, prosecuting attorney of Greene county, Missouri, and filed in said juvenile court and attested by the clerk of said court.
    INFORMATION.
    STATE OF MISSOURI
    County of Greene. ss.
    IN THE JUVENILE COURT OF GREENE COUNTY, MO. The State of Missouri at the relation of Warren L.
    White and Sam M. Wear, Prosecuting Attorney of Greene County, Missouri, Plaintiff, versus
    Morris Kelly, Defendant.
    ,Sam M. Wear, Prosecuting Attorney within and for the county of Greene, in the State of Missouri at the relation of Warren L. White, informs the court that Morris Kelly on the 18th day of November, 1913, at the said county of Greene and State of Missouri, being then and there a child under the age of seventeen years, and then and there was unlawfully delinquent within the meaning of the act of the General Assembly of the State of Missouri, entitled, “An Act to Regulate Treatment and Control of Delinquent Children in Counties of Fifty Thousand Population,” approved June 12, 1909.
    That on the said 18th day of November, 1913, the said Morris Kelly was then and there unlawfully delinquent under the laws of the State of Missouri and did unlawfully, willfully, .feloniously, premeditatedly, deliberately and of his malice aforethought in and upon the body of one Roy Johnson make an assault with a certain dangerous and deadly weapon, to-wit, a pocket knife having a blade of the length of three inches, and with the said knife which he, the said Morris Kelly then and there had and held in his hand, him, the said Roy Johnson, feloniously, willfully, deliberately, premeditatedly and of his malice aforethought did strike, cut, stab, and thrust in and upon the left side of the body of him, the said Roy Johnson, giving to him, the said Roy Johnson, then and there with the knife aforesaid upon the left side of the body of the said Roy Johnson one mortal wound of the breadth of one inch and the depth of two inches, of which said mortal wound the said Roy Johnson then and there instantly died; so that the said Morris Kelly in the manner and form aforesaid the said Roy Johnson did then and there feloniously, willfully, deliberately, premeditatedly and of his malice aforethought kill and murder contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State.
    Wherefore the said relator and Sam M. Wear, Prosecuting Attorney, pray the couct that the said Morris Kelly be brought before the Juvenile court of Greene county, Missouri, together with the parents of said defendant, then and there to. show cause, if any there be, why the defendant should not be adjudged delinquent under the law relating to delinquent children.
    Sam M. Wear.
    Sam M. Wear, Prosecuting Attorney, makes oath and says that the facts stated in the fo'regoing information are true, according to his best information and belief.
    Sam M. Wear.
    Subscribed and sworn to before me this 21st day ’of January, 1914.
    S. A. Reed,
    Clerk of the Circuit Court of Greene County, Missouri, and Ex-Officio Clerk of the Juvenile Court of Greene County, Missouri.
    (Duly certified by the clerk under the seal of the court.)
    The relator states that in obedience to said summons he appeared in said juvenile court on the second of February, 1914, where he was required to answer the above petition and to take part in the selection of a jury from the panel of forty which had been assembled for the purpose of affording him a trial; that he refused to participate in such selection or to answer such petition and protested against such proceedings and the jurisdiction of said court. Whereupon, the judge of said court adjourned the hearing of said case until the 16th of February, 1914, and announced that it would be tried on said day. Relator farther states that said court had no jurisdiction over him and that said paper writing copied above conferred no jurisdiction on it, and that the act of the General Assembly relating to said court was unconstitutional and void so far as concerns the subject-matter set forth in said paper writing and as to the person of this relator. Relator then specifies a number of reasons why he thinks the legislation relating to the juvenile courts is in violation of the Constitution of this State, which, if necessary to be ruled on, will be noted in the opinion.
    This court was pleased to award its alternative writ, returnable In Banc on the 4th of March, 1914. Upon the issuance thereof and due service upon the respondent, he made a return setting up that he had been duly designated by the judges of the circuit court of Greene county to hear and determine all cases coming before the juvenile court of said county, concluding his return as follows:
    “And this respondent says that as he construes said act he can as judge of said court proceed only according to such practice, according to the defendant in said case, the relator herein, all the rights as to trial by jury, method of procedure, and assessment of penalty by the jury, as he could claim were he tried in division number two of said circuit court of Greene county, which under the law has jurisdiction of criminal cases in which persons over seventeen years of age are defendants, and this respondent states that so construing said act he was about to and will if not permanently prohibited by this honorable court, proceed with the trial of said case of ‘The State of Missouri v. Morris Kelly’ and conduct said trial in all respects as it would according* to law be conducted were it to take place in said division number two of said circuit court of Greene county having jurisdiction over criminal cases in which persons over seventeen years of age are defendants, and this respondent states that he desires to make no contention as to the constitutionality of said act of the General Assembly of April 11, 1911, but submits the same and all questions raised by relator herein to this honorable court for decision, and respectfully submits this as his return to the writ of prohibition herein issued and served upon this respondent. ’ ’
    Respondent on the date of the filing’ of the above return also addressed a letter to the clerk of this court filed therewith, in which he stated that he would make no further appearance and would not be represented when the matter was argued.
    Relator filed no demurrer to said return nor any adversary pleadings.
    The case was not orally argued by either party, but was taken as submitted on a brief for relator and on the return made by respondent.
   OPINION.

I.

BOND, J.

(After stating the facts as above). — The questions intended to be made in this proceeding are of the highest import, but the proceeding itself is in an anomalous condition. No issue has been joined on the return, either by motion for judgment on the pleadings, or otherwise. We are not inclined in a matter of this gravity to rule on the contentions set forth in relator’s brief when they do not arise upon any joinder of issue demanding their decision.

A proceeding attacking the constitutionality of the organization of a court and its procedure, which were established by the Legislature from-the most humane, motives and were designed to protect and help the 'future men and women of the State and fit them for the duties of citizenship, should only be brought upon the reasonable belief that the act sought to be. annulled violates the constitutional rights of the relator in some essential manner. And this court will not consider such an attack until the issues properly presenting it are evolved. Nor will it sustain such an attack, even if properly presented, if there is any reasonable theory upon which the act of the Legislature may be constitutionally upheld.

While the objections urg:ed in relator’s brief to the act of the Legislature (Laws 1911, p. 177) are not ripe for decision under the state of the pleadings in this case, yet many of them have been held in. judgment and overruled when the scheme of juvenile courts was elaborately reviewed and upheld in a decision of this court In Banc not cited by relator. [Ex parte Loving, 178 Mo. 149.] Again this beneficent judicial reform was also approved sub silentio in another case also not cited by relator. [State ex rel. v. Wilder, 197 Mo. l. c. 35.] Moreover, the power of the Legislature to create courts of this character would seem to be supported by a provision of the Constitution which expressly authorizes the creation of criminal courts in counties having over fifty thousand population. [Constitution 1875, art. 6, sec. 31.]

It appears from the return of the respondent,- that he proposes to try the relator just as if he were prosecuted by the State on the same charge in the criminal court over which respondent presides when not performing his designated duties as judge of the adjunct to that court, called for convenience the juvenile court. It is manifest, therefore, that relator is not likely to experience any deprivation of the rights and privileges granted to him under the Constitution and statutes of this State, and that he will not suffer from our declination to pass upon the contentions made in his briéf, but not raised under the state of the pleadings.

II.

Before disposing of this proceeding, it is well to note that there is only one statute containing a plan for the reformation of “negligent and delinquent children” by judicial procedure, which is now in existence, and that is the act of the Legislature approved April 11, 1911 (Laws 1911, p. 177), which act by section 24 thereof, expressly repealed the previous law on the subject contained in articles 6 and 7 of chapter 35' of the Revised Statutes of 1909, which had been taken from the Laws of 1909, p. 423, and these had expressly repealed the prior ones on this subject enacted in 1903 and 1905. [Laws 1909, p. 431, sec. 25.] The later act of 1913 (Laws 1913, p. 148), purporting to vest jurisdiction in the probate court of negligent and delinquent children in counties having a population of less than fifty thousand, was held unconstitutional by this court in a recent case by Walker, J., In Banc. [State ex rel. v. Tincher, 258 Mo. l.] That opinion dearly distinguishes the provisions of the Act of 1913, from those contained in the Act of 1911 which vests jurisdiction in the circuit court sitting as a juvenile court, and authorizes it to administer the general constitutional and statutory law in cases of the trial of criminal charges arising under that act. [Laws 1911, p. 179, sec. 2, p. 181, sec. 7 et passim.]

The fact that there is left but one valid act on the statute books of this State touching the exercise of judicial power on behalf of “negligent and delinquent children,” was overlooked by the prosecuting attorney in the preparation of his information against the relator, for the document shows on its face that the charge therein made is based upon the Revised Statutes .1909, chapter 35, articles 6 and 7, although at the time it was filed all the sections contained in the articles referred to had been expressly repealed by tbe Act of 1911.

Doubtless the learned respondent will not proceed to try tbe relator under tbe present information when bis attention is directed to its term's, and will proceed in tbe matter after tbe filing of a proper information or tbe finding of an indictment as prescribed by tbe Constitution (Constitution, art. 2, sec. 12, Amendment of 1900), and will also conduct such trial in accordance with “tbe practice and procedure prescribed by law for tbe conducting of criminal cases,” and with due observance of all tbe constitutional rights of relator. [Laws 1911, p. 180, sec. 2.]

We have concluded that by bis failure to plead to tbe return of respondent, relator is not justified in invoking tbe ruling of this court upon the contentions set forth in bis brief, which brief cites no decisions of this or any other court. Under these circumstances tbe proper disposition of this proceeding is to quash our alternative writ and to dismiss tbe application therefor, which is accordingly done.

All concur, except Woodson, J., who dissents.


author: WOODSON, J.

text:
    THE STATE ex rel. GEORGE J. MERSEREAU, Administrator of Estate of ELIZABETH DOSTER, v. JAMES ELLISON et al., Judges Kansas City Court of Appeals.
    In Banc,
    July 2, 1914.
    1. CERTIORARI: Court of Appeals. If the Court of Appeals did not follow the last previous decision of the Supreme Court, hut rendered judgment contrary thereto, the Supreme Court, upon certiorari, will quash its judgment.
    2. -: -: Reversal on Merits. Suit for damages for personal injuries had been brought against two railroads, and at the trial, after the evidence was in, the case was dismissed 'as to one of them, and in his argument to the jury counsel for the remaining defendant stated that an attempt was being made to load the entire responsibility for the- injury upon his client and to let the other company out. Thereupon a lengthy colloquy ensued between counsel for plaintiff and said defendant, defendant’s attorney contending that a judgment against his company would be conclusive and bar any right to compel the other company to contribute to the payment of the damages, and plaintiff’s attorney that it was immaterial whether a judgment for plaintiff would bar the other company’s right to compel contribution. The court directed the jurjr not to consider the question at all. The Court of Appeals reversed a judgment for plaintiff on the sole ground that plaintiff’s counsel used improper language in said colloquy. Held, that it was wholly immaterial, so far as plaintiff was concerned, what the rights of the two companies were as between themselves, and the Court of Appeals did not follow prior opinions of this court regarding remarks of counsel in their arguments before the jury, and its judgment, upon certiorari, is quashed.

      Certiorari.

    Judgment quashed and cause, remanded.

      Lathrop, Morrow, Fox é Moore and Cyrus Crane for relator.
    (1) The Kansas City Court of Appeals violated all prior precedents, both in the Supreme Court and the appellate courts of this State, in reversing and remanding. this cause on account of what occurred during the argument of the case before the jury. This is true for these reasons: (a) The remarks of plaintiff’s counsel were not improper, (b) If they had been they were fully corrected by the court’s action both in giving instructions and in withdrawing the remarks from the jury and instructing the jury to wholly disregard them, (c) The case was not a close one on the facts and no decision can be found in this State where a reversal has been ordered under such circumstances when the court has fully admonished the jury to disregard the matter complained of. It has always been the rule in this State that the conduct of the argument of the case before the jury and what redress should be given on account thereof, were matters almost wholly within the discretion of the trial court, who heard the arguments and was in a better position to judge of their effect than the appellate court; and oh this question it was held that the appellate courts would not interfere unless there was plainly an abuse of this discretion on the part of the trial court. Huckshold v. Railroad, 90 Mo. 599; Gidionsen v. Railroad, 129 Mo. 403; Olferman v. Railroad, 125 Mo. 408; Wendler v. Furnishing Co., 165 Mo. 542; Yost v. Railroad, 245 Mo. 251. We confidently assert that no decision will be found in this State holding that the trial court has abused its discretion in regard to an argument made before a jury, and a reversal ordered on that account, when the trial court has told the jury that the whole matter should be disregarded by them; that they should pay no attention to it and must get it entirely out of their minds. Cases have been reversed where there was an improper argument with no correction by the court, but never has this been done prior to the case at bar, where the court’s action was a prompt and complete withdrawal of the matter and an instruction to the jury to disregard it. Nolan v. Johns, 126 Mo. 159; Railroad v. McElroy, 161 Mo. 594; Britton v. Ins. Co., 229 Mo. 733; Wellman v. Railroad, 219 Mo. 152; 'Butcher v. Railroad, 241 Mo. 176; Norris v. Railroad, 239 Mo. 695. (2) We realize that we are calling on this court to exercise one of its great powers — a power which necessarily must be sparingly used. However, we believe this court will not hesitate to use that power when it is manifest that an inferior court has committed a serious error — so serious as to amount to a plain deprivation of a right and has accomplished that end by an erroneous opinion contrary to and in conflict with all the prior adjudications of the Supreme Court of the State. It is not a small or inconsequential matter that a party who has suffered a serious personal injury — an injury which in all probability resulted in death — and who on the trial of the cause has proved the clearest sort of a right to a recovery of damages, should have a perfectly just verdict set at naught on account of some colloquy between attorneys during the argument when the court has told the jury that the matters stated in such colloquy was not for their consideration and they should pay no attention to them. Of course, there is nothing which the courts are more frequently called- on to deal with, in the trial of cases, than the arguments of counsel to the jury. When, therefore, a manifestly just verdict is destroyed by the announcement of a new rule, in regard to such arguments, and the entire result of appellate announcements in the State is set aside and given no consideration, it is certainly time for this court to exercise its superintending control in the interest of justice and its proper administration in the inferior courts.

      Fred 8. Hudson for respondent C. M. & St. P. Ry. Co.
    (1) The office of the writ of certiorari is to give relief to a party in a cause where the lower court has acted without jurisdiction or in excess of its jurisdiction, or when it appears on the face of the record proper that the lower court rendered a judgment which it had no right in law to render; but the writ cannot be used as a substitute for an appeal or writ of error. State ex rel. v. Reynolds,-190 Mo-. 588; State ex rel. v. Springer, 134 Mo. 212; State ex rel. v. Woodson, 161 Mo. 444; State ex rel. v. Bland, 168 Mo. 1; State ex rel. v. Shelton, 154 Mo. 670; State ex rel. v. Kansas City, 89' Mo. 34. (2) The- office of the writ is to give relief to an injured party when the court has proceeded without jurisdiction or has exceeded its jurisdiction, or has rendered a judgment or made an order which it is not authorized by law to'make. State ex rel. v. Dykeman, 153 Mo. App. 418; State ex rel. v. Reynolds, 190 Mo. 578. (3) At common law and in those States which have not departed materially therefrom (of which Missouri is one) the accepted doctrine is that where a tribunal has jurisdiction the writ does not lie to correct mere errors in the exercise of rightful jurisdiction. State ex rel. v. Wooten, 139 Mo. App. 236; State ex rel. v. Smith, 101 Mo. 174; State ex rel. v. Edwards, 104 Mo. 125. (4) The writ cannot be awarded for the simple purpose of correcting errors, but it must clearly appear that the Court of Appeals ' had exceeded its legitimate powers. State ex rel. v. Court of Appeals, 99 Mo. 221.. (5) The Supreme Court cannot quash the record of the Court of Appeals in a cause in which the Court of Appeals had jurisdiction, on the ground that there was error in the judgment. State ex rel. v. Broaddus, 216 Mo. 344. The main complaint made by relator is that there is error in the judgment rendered by the Court of Appeals. He at, no time attacks the jurisdiction of the Court of Appeals, but practically concedes the Court of Appeals had jurisdiction of this cause and it has been stated in the cases herein cited that this court will not exercise its power for the simple purpose of correcting errors unless it is clearly shown that the Court of Appeals exceeded their legitimate powers. Neither will this court attempt to set aside or quash the record of the Court of Appeals on the ground that the Court of Appeals rendered an erroneous judgment, unless the question of jurisdiction arises, which does not in this caSe.
   WOODSON, J.

— This is one of the cases coming to this court, by certiorari, from the Kansas City Court of Appeals, on the theory that we have the right to review the decisions of those courts regarding the merits of a case.

Counsel for relator seem to think that the Court of Appeals erred in its ruling regarding the merits of the case, and ask this court to correct that error.

The facts of the case are few and simple, and not disputed in any of the material parts.

Elizabeth Poster, a resident of the State of Michigan, purchased a ticket entitling her to transportation from her home, to the Pacific Coast, via, among other roads, the Chicago, Milwaukee & St. Paul, and the Missouri Pacific Railway Company. While traveling upon the former road (which will hereinafter be referred to as the Chicago'. Company) near Kansas City, Missouri, the ear in which she was riding was switched from the Chicago Company to the Missouri Pacific Railway Company (which will hereafter be referred to as the Pacific Company). In making the switching the Chicago Company so negligently and carelessly drove the car in which Mrs. Poster was riding against some standing cars, on the cross-over track leading from the one road to the other, with such force and violence that she was thereby thrown down upon the floor of the car so as to fracture her hip and otherwise greatly bruise and injure her, from which she has, since this appeal, died. She brought suit in the circuit court of Jackson county for $--and recovered a judgment for $7500, which on motion for a rehearing was reduced to $6000. From this judgment the Chicago Company appealed the cause to the Kansas City Court of Appeals.

The Court of Appeals, upon the first hearing, reversed the judgment of the circuit court upon the authority of Bagnell Timber Co. v. M. K. & T. R. R. Co., 180 Mo. 420, which erroneously held that where two or more persons were sued jointly in contract or in tort, no recovery could be had against one without against all. That case was expressly overruled in the cases of Bagnell v. Railroad, 242 Mo. 11; Winn v. Railroad, 245 Mo. 406, and Hutchinson v. Safety Gate Co., 247 Mo. 71.

The attention of the Court of Appeals was called to the case first mentioned, during the pendency of the motion for a rehearing, and thereupon a hearing was granted; and upon the second hearing the Court of Appeals again reversed the judgment of the circuit court and remanded the cause for the reasons to he presently stated.

The second opinion of the Court of Appeals, as I understand the record, reversed the judgment of the circuit court for the sole reason that counsel for relator used improper language during the argument of the cause before the jury.

The record as here presented, which is admitted to be true by the demurrer of respondents, regarding this question, is substantially as follows:

Both the Chicago Company and the Pacific Company were sued jointly, but after the introduction of the evidence in the case counsel for relator concluded that no case had been made against the Pacific Company ; and therefore dismissed the case as to it, which action of the trial court, in my opinion, was clearly right.

The trial of the case had occupied several days; and during the argument of counsel for relator, before. the jury, the court, for some reason, not made clfear (the full argument not having been reported) stated: “Gentlemen of the jury, the Missouri Pacific is no longer in this case. That matter was disposed of Saturday. ”

Mr. Harber (Counsel for the Chicago Co.): “But that fact is in nowise to influence this jury in any way?”

The Court: “No, not at all.”

Mr. Crane (Counsel for relator): “You are explaining that in the light of this instruction?”

The Court: “Yes, sir.”

Thereafter, during the argument of the cause, Col. Iiarber, or some one on his side of the case, made the statement, and probably repeated it, that an attempt was being made to load the entire responsibility of the injury on the Chicago Company and let the Pacific Company out. This was, as previously stated, reiterated by counsel.

In trying to answer this argument counsel for plaintiff there, relator here, stated, as the record shows:

“That the evidence before the jury shows that the injury to the plaintiff occurred while the car in which she was riding was being hauled by the defendant, The Chicago, Milwaukee & St. Paul Railway Company, and that if said defendant questioned that fact it could litigate that matter with the other defendant the Missouri Pacific Railway Company.”

Remarks were made as follows:

“Mr. Harber: I want to say to this jury, and if it is not correct I want this court to say so, that a judgment against this defendant here gives us no right whatever to ask a dollar’s compensation from the Missouri Pacific.
“Mr. Crane: I say it don’t prevent your doing so.
“Mr. Harber: I say we have no right, and it is absolutely conclusive as to which one’s negligence caused this woman’s injury.
“Mr. Crane: I deny that as not being a correct statement of the law.
“Mr. Harber: What is the ruling of the Court?
“The Court: I don’t rule on it at this time. I think it is a matter of argument for counsel.
‘ ‘ To which ruling and action of the court in permitting such line of argument, the said defendant, the Chicago, Milwaukee & St. Paul Railway Company, at the time excepted and still excepts.”

The matter was again referred to as follows:

“Mr. Crane: I don’t agree with Mr. Harber that if his company is held liable he cannot recover against the Missouri Pacific. I say in my judgment he can; but he won’t do it, because, in my judgment, he hasn’t a particle of evidence to substantiate that.
“Mr. Harber: I want the court to say that such is not, the law; that no recovery in this case against the Milwaukee will warrant it; and, on the other hand, would absolutely bar any such claim against the Missouri Pacific.
“Mr. Crane: It would not bar it until there is a final judgment against the Missouri Pacific.
“Mr. Harber: I ask the court to SO' instruct the jury, that it would bar it.
“This the court refused to do. Defendant excepted at the time.
“Mr. Crane (Continuing argument): These gentlemen (the defendant, Chicago, Milwaukee & St. Paul) though won’t do it because I gave them the opportunity to do it right in this court room and you heard—
“Mr. Harber: I object to that; there is nothing of that kind in the record. I told you the other day that we had the witnesses right here to show that if there was any rough handling of these cars it was while they were in the hands of the Missouri Pacific, and you could put them on as you did the Missouri Pacific men. I told Mr. Crane that our men were right there, and he would not deign to do it.
‘ ‘ The Court: Gentlemen of the jury, you will not consider at all what either counsel had to say .with reference to what recovery ever could be made herein. You must get the idea of that out of your mind altogether.
“Mr. Harber: I want the court to go further and say that a finding in this case would not, under any circumstances, give the Milwaukee any right or claim' against the Missouri Pacific.
“Mr. Crane: And neither would it bar them.
“Mr. Harber: And would bar them. ■
“The Court: The court has already, at the request of both sides, instructed the jury that they will not consider this question of a recovery over at all, and that is the way the matter stands, and that is the only instruction or information the jury shall have on the question.
“To which ruling and action of the court the defendant The Chicago, Milwaukee & St. Paul Railway Company at the time excepted and still excepts.”

I. The foregoing is a sufficient statement of the facts to fully present the legal proposition here presented.

The colloquy here narrated between counsel for the Chicago Company and the relator regarding the rights that existed between the former and the Missouri Pacific Company has been before this court a number of times; and in the case of Beave v. Transit Co., 212 Mo. 331, in a more solemn form, for there it involved a written instruction of the court and not a heated colloquy between counsel and the court during the argument of the cause. In that case this court, after a careful review of the authorities upon that question, in speaking through Judge Fox, said:

“But independent of this, respondent is not responsible for errors committed by the court in giving or refusing instructions declaring the rights of the defendants among themselves. He took no part in that and could not have prevented the action of the court in that regard. If error it was in giving said instruction, plaintiff, adopting the quotation as made in brief of counsel for respondent, could but sit ‘like patience on a monument, smiling at grief.’ [Taylor v. Railroad, 137 Mo. l. c. 368; O’Rourke v. Railroad, 142 Mo. l. c. 352.]”

This is logically true and announces sound doctrine. What has the relator in this case to do with the interquarrels of the defendants ? None whatever. She might have sued the Chicago Company only, had she deemed it proper. Then no question whatever could have been raised as to the liability of the Pacific Company, except in a negative way, that the Chicago Company was not responsible for the injury and therefore not liable for the damages inflicted upon the relator.

It is elementary law, as shown by the Bagnell cases, supra, that an injured party may sue any or all wrongdoers contributing thereto, a¿nd in so far as he is concerned it is wholly immaterial what the rights of the wrongdoers are, as between themselves. This is self-evident from the mere statement of the veherable legal proposition underlying it.

There is no other error assigned or committed in so far as this record discloses.

Under this view of the case we are clearly of the opinion that the Court of Appeals did not follow the numerous rulings of this court regarding remarks of counsel in argument before the jury.

Entertaining these views I am clearly of the opinion that the judgment of the Court of Appeals is erroneous and that it should be quashed, and the cause remanded.

It is. so ordered.

All concur, except Bond, J., who dissents.


author: FARIS, J.

text:
    THE STATE ex rel. BARTON H. BOYER et al. v. PETER H. HUCK, Judge.
    In Banc,
    July 2, 1914.
    1. PROHIBITION: Practice. The general rule of practice is that the right to the writ of prohibition is ordinarily to be determined upon a demurrer to the petition, or upon a motion to quash the preliminary rule, or upon a demurrer to the return, or upon a motion, for the writ, which motion would seem to be practically equivalent. to a motion for judgment upon the return.
    2. -:--: Imperfect Pleadings. Where the only pleadings in the prohibition case are the petition for the writ, the return to the preliminary writ, and the reply to said return, and each material averment in the return is denied in the ■ reply, and there is no stipulation as to the facts or any agreed statements of the facts, and no testimony taken by a .commissioner, and no motion for judgment upon the return, and the respondent circuit judge in his return indicates his perfect willingness 'to follow the decision in a kindred pending case, the writ will be discharged.
    Prohibition.
    Preliminary rule discharged.

      Benjamin II. Marbury for relators.

      Edward A. Rosier and Jerry B. Burks for respondent.
   FARIS, J.

— This is an original proceeding brought by relators, who are respectively the mayor and the members of the city council of the town of Farmington, against respondent, who is judge of the 27th Judicial Circuit, and therefore ex-officio judge of the circuit court of St. Francois county, to prohibit respondent from exercising jurisdiction in a certain action brought by Wm. McMahon and two others against relators, wherein it is sought to prevent relators from holding a local option election in the town of Farmington under the provisions of section 7239, applying to cities having a population of 2500 inhabitants or more. We issued herein, on the 24th day of December, 1913, our preliminary rule upon respondent to show cause why such rule should not be made absolute.

Respondent filed his return in which he admitted his official capacity and that he made the order in prohibition set out in the original petition here of relators. No further pertinent admissions were made. No demurrer by respondent to relators’ petition was interposed; respondent expressly, waiving a demurrer, though inferentially suggesting that such would lie. The return denied the lack of jurisdiction, or that the respondent was. proceeding in excess of his jurisdiction, but averred the fact to be that he had jurisdiction.

Thereupon relators filed their reply to the return of respondent in which they specifically deny all of the allegations ma'de in the return, except such admission as may be contained in the excerpt below set out from relator’s reply. Following this, and preceding new matters of additional averment, there is a clause of general denial. These admissions and this general denial are thus set out in the reply:

“Your relators admit that the respondent herein, when passing upon the cause below, stated orally from the bench that he entertained grave doubts whether the said constitutional amendment was self-enforcing, and if not, whether proper enabling statutes had been adopted by- the General Assembly of Missouri sufficient to carry the referendum provided by said constitutional amendment into effect; and admit that on December 15, 1913, relators herein (and respondents below) filed their demurrer to the petition of plaintiff, and the circuit court of St. Francois county at its regular November term, 1913, and on December 19, 1913, made an order, duly entered of record, continuing the cause of the State ex rel. McMahon et. al. v. Barton H. Boyer, Mayor of the. city of Farmington, et al., and all of the other causes pending, to the regular February term, 1914, and said circuit court on said December 19, 1913, adjourned to court in course; but that these orders were made and entered of record after the said circuit court had, on Monday, December 1, 1913, issued its writ wherein your relators (and respondents below) had been restrained and prohibited from having absolutely any further proceeding in the matter of considering the local option petition, or from calling an election as in said petition requested, or from further proceeding in said action; and after said writ had been, by J. C. Williams, sheriff within and for St. Francois county, duly and legally served upon relators and after said sheriff had made his proper official return to said writ.
“Tour relators further replying deny each and every allegation, averment and statement not herein before specifically denied or admitted.”

There are no further pleadings in the case; nor was any testimony taken in the case, nor are there any admissions or stipulations to be found in the files, or in the briefs except the admission in the excerpt below, which we set out from the brief filed on behalf of Judge Huck, the respondent, to-wit:

“We, therefore, very respectfully ask your Honors to dismiss the rule to show cause in this case, assuring the court that when this matter comes on for further hearing at the May term, 1914, of the circuit court of St. Francois county, Missouri, Judge Huck will be governed by the decision of your Honors in the Kemper case and will treat your finding of fact with reference to the filing of the necessary referendum petition as a judicial determination thereof and make such order in the premises as that decision requires.”

I. We meet in limine a serious question touching whether there is any issue before us on which to rule. We suggest this for four reasons: (a) the condition of the pleadings; (b) the fact that such issues even, as we might be able to excavate from between the lines of the petition for the writ, from the return to the writ and from the reply to the return, have been settled in the case of State ex rel. v. Carter, 257 Mo. 52; (c) whether the entirely frank attitude and admissions of respondent’s counsel as we set them out from their brief have not broadly speaking converted this into a moot case, and (d) the failure of relators to comply with our rules which require the filing of printed abstracts of the record.

There are but three pleadings in the case, viz., the petition for our writ; the return to our preliminary writ, and the reply to the said return. There is no demurrer to the petition by the respondent, nor any demurrer to the return by relators, nor any motion for judgment upon the return. [Wand v. Ryan, 166 Mo. 646; State ex rel. v. Elkin, 130 Mo. 90.] There are no stipulations as to the facts, or any admitted facts, or agreed statement of facts, or any testimony taken by a commissioner and officially returned to us as the facts, as has been done in this court in this same sort of case (State ex rel. v. Carter, 257 Mo. 52); neither is there any other method followed by which lawsuits are gotten to an issue and that issue submitted to the court for judgment. In short, the case comes to us with all of the facts which control the result, sharply disputed, with no evidence to solve that dispute, and with no legal controversy whatever put to an issue by the pleadings. , [State ex rel. v. Elkin, supra.]

The general rule of practice is, that the right to the writ of prohibition is ordinarily to be determined by the court upon a demurrer to the petition, or upon a motion to quash the preliminary rule, or upon a demurrer to the return (Ex parte Due, 116 Ala. 491; Siebe v. Superior Court, 114 Cal. 551; State v. McMartin, 42 Minn. 30; State ex rel. v. Lubke, 29 Mo. App. 555; Vitt v. Owens, 42 Mo. 512; State ex rel. v. Braun, 31 Wis. 600), or upon a motion for the writ (In re Cooper, 143 U. S. 472; In re New York Steamship Co., 155 U. S. 523), which motion would seem to be practically equivalent to a motion for judgment upon the return. [State ex rel. v. Elkin, 130 Mo. 90; Wand v. Ryan, 166 Mo. 646.] We concede that there are seemingly cases wherein the question of the right to the writ was determined from the return, but such were considered and adjudged ex gratia (State ex rel. v. Shelton, 238 Mo. l. c. 286), and none of them was a case where, as here, each and every one of the controlling facts averred in the return was denied in the reply.

In a case lately before us involving a less flagrant condition of bad pleading and practice, we took occasion to say:

“There is no reason why, when we have regard to the fact that the number of original writs we issue and consider is increasing by leaps and. bounds, we should step aside from the well-known beaten paths of practice to make, in a prohibition case, an unnecessary exception to the general rule, which exception so far from expediting business, will but impede, delay and hinder. If we spend weeks trying to pick out the issues from a commingled.mass of void and formless' matter which has gathered volume as it rolled up to us, we are thereby delaying others, who by diligence have earned a speedy hearing.” [State ex rel. v. McQuillin, 256 Mo. 693, l. c. 709.]

The point seemingly raised by this proceeding was a live one and an important one at the time we issued our preliminary rule in this case. But that point has been resolved and settled against the contention of the learned respondent (State ex rel. Kemper v. Carter, supra), and in view of the fact that respondent so frankly expresses bis attitude of compliance, as shown by the excerpt which we quote from his brief, we are permitted to fully apply here, without regret, the rule which we felt compelled to apply partially in the case of State ex rel. v. McQuillin, supra, that other litigants might not suffer and the business of the court be thereby expedited.

It follows that the preliminary rule issued by us herein should be discharged.

All concur.


author: GREAVES, J.

text:
    THE STATE ex rel. NEW MADRID COUNTY et al. v. JOHN P. GORDON, State Auditor.
    In Banc,
    July 2, 1914.
    1. COURTHOUSE: Election for Bonds: No Recital of No Building Fund. The Act of 1913 (Laws 1913, p. 121) does not mate it compulsory upon county courts to create the building fund authorized by section two thereof, and it is not a prerequisite to a valid election for the issuance of courthouse bonds, that the petition presented to the county court ashing for such an election, or that the order of the court ordering the election, contain a recital that the courthouse cannot be built out of the building fund authorized by said section two. Such recital is not jurisdictional.
    2. -: -: Sufficient Building Fund: Equity. Where there is a sufficient building fund on hand, created in pursuance .to section two of the Act of 1913, Laws 1913, p. 121, to erect a courthouse or other public building, without resort to an election to authorize the issuance of bonds, the county court, at the instance of taxpayers, may be enjoined from ordering such an election, because in equity such an election should not be held.
    3. -: -: Sufficient 'Petition: In Terms of Statute. As a rule, when the statute fixes the terms of a pleading, a substantial compliance with them is sufficient; and as the statute prescribes the terms of the petition to be presented to the .county court asking that an election be held to authorize the issuance of bonds for the building of a courthouse, and does not say that it shall contain a recital that there is not sufficient money pertaining to the building fund to huild it, an omission of such a recital does not show a lack of jurisdiction in the court to order the election.
    4. -: -: Notice: Rate of Increased Taxation. Section 9 of the Act of 1913, Laws. 1913, p. 121, is intended to apply to both elections authorized by statute .for raising money to huild a courthouse, namely, the election to authorize the issuance and sale of bonds, and the election to authorize an increase in the rate of taxation to create a special fund without bonds; and some of its requirements are applicable to the one, and others to the other. That section does not mean that the notice to authorize the issuance of bonds shall specify “the rate of the increase of the tax levy.” The Legislature itself so construed that section by prescribing the form of the ballot for a bond election, which' contains no words about an increase of the tax rate, and by the further provision that, if the bonds are authorized, the court shall levy an annual tax sufficient to pay the interest and to create a sinking fund sufficient to extinguish the entire debt within twenty years. [Following Benton v. Scott, 168 Mo. 378.]
    Mandamus.
    Whit allowed.

      Callivan, Riley & Riley for relators.
    (1) It was not necessary that the notice of the election should “ specify the rate of the increase of the tax levy.” (2) It is not required that the record and order of the county court show that the county court of New Madrid county found it was necessary for the county of New Madrid to incur an indebtedness for the purpose of building a courthouse. Gaston v. Lamkin, 115' Mo. 31.

      John T. Barker, Attorney-General, A. T. Dumm and Fauntleroy, Cullen & Hay for respondent.
    (1) The record does not show jurisdictional facts. This provision of section 8, as clearly as the English language can express it, requires that bond-issue elections be limited to those eases in which the expenditure designed, or intended, cannot be made by creating a county building fund, as provided in the first seven sections of the Act of 1913. Neither the petition filed with the county court, nor the order of the court based upon such petition, recites that such fact exists. Such a showing is jurisdictional. (2) The notice of election fails to comply with one of the express provisions of section 9', that relative to the rate of increase of the tax levy. Eailroad v. Apperson, 97 Mo. 309; Eailroad v. Beares, 39 Ind. 598; Bank v. City of Pomma, 48 Kan. 55; Eailroad v. Wells, 39 Ind. 539. The requirement for the levy of an annual tax in the case of a bond issue is just as clear and explicit as in the case of an election to increase an indebtedness by the direct levy of a tax.
   GREAVES, J.

— Original action in mandamus. Issuance of alternative writ waived and; the petition taken as and for such writ. To this petition the respondent demurred, thus leaving to us a case of admitted facts, to which should be applied applicable law.

At a special election the county of New Madrid voted $40,000 for the building of a new courthouse and authorized the issuance of bonds in such sum. The bonds were presented to the respondent as State Auditor for registration, and he refused to register the same, and hence this action. His reasons for declining to register the bonds are presumably those stated in the demurrer filed in this cause. Such demurrer reads:

“Comes now the respondent herein, and treating • the petition for the writ as and for the alternative writ in this cause, presents herein his demurrer to said petition and alternative writ, and as grounds therefor respondent assigns the following:
“1. The petition and alternative writ and the record of the county court of New Madrid county, made a part of the petition, upon their face show that the relator is not entitled to the relief prayed for, or any relief.
“2. That the petition and the record of the county court of New Madrid County, made a part of the petition, fails to show that the county court of New Madrid county found that the expenditure for the building of the county courthouse could not be made by creating a county building fund, as provided by the first seven sections of the act of the General Assembly of Missouri approved March 22, 1913.
“3. That the petition and the record and order of the court made a part thereof do not show that the county court of New Madrid county found that it was necessary for the county, of New Madrid to incur an indebtedness for the purpose of building a courthouse.
“4. That, as shown by the petition for the writ, and the orders and record of the county court of New Madrid county made a part thereof, the notice of the election ordered by the court failed to specify the rate of the increase of the tax levy, as provided and required by section 9 of the Act of March 22, 1913.
“5. That the petition for the alternative writ filed herein by the relator being* treated as and before the alternative writ herein, together with all exhibits attached to said petition and referred to therein and treated as parts of said petition, show that the courthouse bonds sought to be registered are not entitled to registration, and for that reason the relator is not entitled to the relief prayed for, or any other relief.
“Wherefore, respondent prays judgment of this-court upon his' demurrer, and that he may go hence without day.”

Matters of admitted facts will be noted in connection with a discussion of the several points raised by respondent’s' demurrer. This sufficiently outlines the case.

I. It is first contended that there is absent a jurisdictional, fact in the record made by the county court in ordering the election for these bonds, and that for such reason the bonds are void and should not be registered. In 1913 the Legislature repealed and re-enacted artide 5, chapter.15, Revised Statutes 1909. This article contained ten sections. The new article enacted in 1913 in lieu thereof contains seventeen sections, including the repealing section, which is section one. The original article provides two methods for building a courthouse, i. e., (1) by issuing and selling bonds for the desired amount, and (2) by levying a direct property tax for a given number of years to pay off and discharge the amount fixed for the public building. Roth of these methods contemplated and required a vote of the people.

The Act of 1913, or the new article 5 of chapter 15, provides three methods for building a courthouse. Section 2 of such new law, so far as necessary, reads:

‘ ‘ That at the first regular term of the 'county court in all counties in this State after this law shall be in force and effect, the county court may create a county building fund to provide for the future erection, enlargement, repair or maintenance of county buildings and annually after said fund is established at the first term of the court held after the end of the fiscal year; the county court shall transfer to the county building fund any surplus left over in any county fund, except road and bridge funds, not needed for the payment of outstanding or back warrants drawn against the fund to be transferred and shall from time to time annually thereafter, at the end of the fiscal year, transfer to the county building fund the surplus of any county bond, sinking or interest fund, not- needed for the payment of outstanding* bonds or interest and may add to such fund as hereinafter provided annually, by tax levy, at the time other county revenue taxes are levied, not to exceed twenty-five per cent of the total constitutional levy of such county as now provided by law. ’

By subsequent sections the fund thus created may be used for building a courthouse, without a vote of the people. The new law then gives the two old methods by the issuance of bonds, or the levy of direct taxes for a given number of years. The first section of the new article is the repealing section. Sections 2, 3, 4, 5, 6, and 7 deal wholly with the building of publio buildings out of the “Building Fund” mentioned above in said section 2, which we have quoted. The remaining ten sections refer to the other two methods of building courthouses and other public buildings. These ten sections, with slight modifications, are but the reenactment of old article 5' of chapter 15, Revised Statutes 1909. They begin with section' 8 and close with section 17. Section 8 of the new act reads:

“That where it shall become necessary for any county in this State to incur an indebtedness for the purpose of building a courthouse,, jail, poorhouse, county sanitarium or other comity buildings where such expenditure cannot be made by creating a county building fund as hereinbefore provided to- be paid out of the county annual tax levy and that would create an indebtedness in excess of the total income and revenue of such county provided for any one year, as limited by law, it shall be lawful for any number not less than one hundred of the qualified voters of such county who are taxpayers therein to present to the county court of such county a petition and application, in writing, setting forth the object and purpose for which the indebtedness is to be created and whether it is desired* to issue bonds for such indebtedness, or to pay the same by the direct levy of taxes for that purpose during á given number of years stated in such petition and praying that an election be held to authorize the incurring of such indebtedness and the levying of such taxes; upon the presentation of such petition, it shall be the duty of the county court of said county at a regular term thereof to order a special election for the purpose set forth in such petition, and to make an entry of such order on the record of the court. ’ ’

The italicized words constitute the principal changes made in the re-enactment of section 1 of the old law. Now the respondent urges that neither the petition presented to the county court, nor the order made by the county court, in this case, recites that this courthouse could not have been built out of the public building fund authorized ‘to be created by the new act. It is true that there is no such recital in either document, and if such a recital in one or the other, or in both, is prerequisite to a valid election for the issuance of courthouse bonds, then the proceedings in the instant case are bad, and respondent was right in refusing to register the bonds. But is such a recital necessary or jurisdictional? We think not. The new act does not make it compulsory upon county courts to create this building fund. It says “the county court may create a county building fund, ’ etc. When such fund has been created, it then empowers the court, without a vote of the people, to build the courthouse, or other public buildings. In certain contingencies the court may issue bonds, to be paid out of this public building fund. [Sec. 5, Laws 1913, p. 123.]

But to get to the point, the new act contemplates three distinct methods for building and paying for a courthouse. Each is distinct and different from the other. Two of the methods require the vote of the people, but one does not. It is quite clear that prior to the re-enactment of section 1 of article 5, chapter 15, into section 8 of the new article 5 of said chapter, it was not necessary to make the recital suggested by respondent. Does tbe modification made so change this method of building and paying for a courthouse by the issuance of bonds voted by the people, as to require this additional recital in the record? We think not. If there was a sufficient public building fund to-meet the emergency suggested by the petitioners, the county court might, at the instance of taxpaying citizens, be enjoined from holding a bond election, because in equity such should not be done, where a fund was on hand from which the public building could be erected. But this does not mean that the court should find and recite the fact that there is no such fund before the order for the election is valid. It should be further suggested that this building fund, if established, does not apply to a courthouse alone, but includes other public buildings, the list' of which was increased by the new act. There might be a building fund, and the county court might have other uses for it. At most it occurs to me that the failure of the petition for the election to allege-, and the failure of the order of the court to recite, that there was no building-fund, is not jurisdictional. This for the very good reason that said section 8 of the new act says what shall be stated in the application or petition, and does not say that this fact shall be stated. Under the law the petition or application shall be “in writing, setting forth the object and purpose for which the indebtedness is to be- created and whether it is desired to issue bonds for such indebtedness, or to pay the same by the direct levy of taxes for that purpose during a given number of years stated in such petition and praying that an election be held to authorize the incurring of such indebtedness and the levying of such taxes.” These are the things the law requires to go in the petition.

As a rule when the statute fixes the terms of a pleading, substantial compliance with the terms of the statute is sufficient. The application or petition in tbia case was a compliance with the requirements of this statute, and the order of the court made thereon was valid. This first contention is therefore ruled against the respondent.

II. The sufficiency of the notice of the election is challenged. Section 9 of the Act of 1913, so far as the notice is concerned, reads:

"Such notice shall specify the amount of the debt, the length of time for which bonds shall be issued, the rate of interest, the object and purposes thereof, the rate of the increase of the tax levy, and the day on which the election is to be held: Provided, that such election may be held at the same time of holding the general election for State and county officers.”

We have italicized the statutory provisions which are called to our attention. The notice in this case does not give the increase of the tax levy. Nor do we think it was required in this case. As suggested, the law provides three methods for securing the funds with which to erect public buildings. If bonds are to be voted an election must be held, and of course a notice of election must be given. So too, if the indebtedness is to be paid by a tax levy an election to authorize the proposed debt must be held and a notice of election must be given. The first method, i. e., building the proposed building out of -the established building fund, required no election and hence no notice. Section 9 of the new act, supra, therefore applies to two methods of discharging the debt. It provided for the notice in both cases in general terms. Some things so required, are applicable to a bond election and not applicable to an increased levy election, and vice versa. Some things are applicable to both. The first requirement of the notice, under section 9, supra, is that the amount of the debt shall be specified. This is applicable to both. The next requisite of the law is “the length of time for which bonds shall be issued. ’ ’ This clearly has no application to cases when the object of the election is to approve a given amount of debt to be discharged by an increased levy running through a stated number of years. Nor can it be said that the clause “the rate of interest” refers to anything except bonds. The next clause “the object and purpose thereof” evidently applies to both kinds of elections.

But following this clause, we have the vital clause in this case. It says the notice shall specify “the rate of the increase of the tax levy.” To our minds this clause refers as exclusively to cases where the purpose is to pay the debt by an increased tax levy during a given number of years, as the phrase “the length of time for which bonds shall be issued” applies to bond issues. The whole trouble arises from providing for notice in two cases in one section of the statute.

This is the legislative construction of section 9. In section 10' the law-making power prescribed the form of the ballot. As to bonds nothing is said as to the rate of taxation, but as to the other much is said. This section 10 sheds much light upon the disputed section, and reads:

“Those of the qualified voters who favor the creation of the indebtedness for the purposes specified in the notice may, if the proposition be to issue bonds at such elections, deposit a ticket, written or printed, in the following form: ‘Appropriation of $-, for the purpose of ——•, yes,’ and those who are opposed to the creation of said indebtedness may deposit a ticket, written or printed, in the following form: ‘ Appropriation of $ — —, for the purpose of--, no;’ and if the proposition be to pay such indebtedness by the direct levy of taxes for a given number of years without bonds, those of the qualified voters who favor the creation of the indebtedness on such plan may, at such election, deposit a ticket, written or printed, in the following form: ‘In favor of indebtedness of $-, for the purpose of building a courthouse (or jail or poorhouse), and of an increase of the tax levy of-cents on the one hundred dollars’ valuation for-years, to pay the same, yes;’ and those who are opposed to the creation of said indebtedness may deposit a ticket, written or printed, in the following form: ‘ In favor of an indebtedness of $--, for the purpose of building a courthouse (or jail or poorhouse or county sanitarium or other county buildings) and of an increase of the tax levy of-cents on the one hundred dollars’ valuation for--years to pay the same, no.’ ”

The legislative intent is made much clearer by section 12 of the same act. Said section reads:

“If it appears from the returns that a majority of two-thirds of the qualified Voters of such county voting at said election voted in favor of incurring said indebtedness, the county court shall make an order reciting the election and the result of the vote for and against the proposed indebtedness, and if the result shall be in favor of issuing bonds therefor, the court, by said order, shall direct the issue of bonds for the amount of said debt, and also the levy of an annual tax for the payment of interest thereon, and also an annual tax in the nature of a sinking fund for the payment of such portion of the-principal each year as will extinguish the entire debt within twenty years from the date of contracting the same; and if the result of such election be in favor of paying said indebtedness by the direct levy of a tax therefor during a given number of years, the county court, by said order, shall direct a levy of the rate of tax voted for during the number of years voted for at said election; and (at) the regular time of levying county taxes in each said years, the county court shall, in addition to the other taxes, levy and cause to be extended upon all property subject to taxation in said county said increase (d) rate of tax so voted for said purpose.”

Under this section, if the election authorizes bonds, then the county court, in its own way, is authorized to make or direct an annual tax for the interest on the debt, and also an annual tax for a sinking fund, which sinking fund will absorb and take up the bonds at the end of 'twenty years. If, however, the election authorized an increased tax levy for a stated period then the county court “shall direct a levy of the rate of tax voted during the number of years voted for at such election.”

From it all it appears to be clear that for a bond issue the notice need not specify the rate of increase of taxation required to meet the bonds and interest.

In the case of Benton v. Scott, 168 Mo. 378, the question is settled. That was a' case where school bonds had been voted. Taxpayers sought to enjoin the collection of the taxes levied by the school board for interest and sinking fund. The court held that the voters had nothing to do with the amount of the tax levy when the proposition was to issue bonds. Having nothing to do with it, they were entitled to no notice. The reasoning of that case, which passed both Division Two and this court In Banc, settles this controversy. The notice in the instant case is good.

There are several other minor suggestions made in the brief of counsel for respondent, but these two questions dispose of the case. We shall not go further. These bonds have been duly authorized and they should be registered. Let our peremptory writ go.

All concur.


text:
    THE STATE at the Relation and to the Use of JAMES H. LAY, Prosecuting Attorney, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    In Banc,
    July 2, 1914.
    1. LOCOMOTIVES: Safety Devices: Act. of 1913: No Specific Allegations. A petition filed by the prosecuting attorney, ■charging the defendant railroad company with having operated a train in this State without having first equipped its engine with the numerous devices prescribed by the Act of 1913, Laws 1913, p. 180, but charging no specific violation of said act, but in general terms stating that the defendant did on June 23, 1913, “wilfully and unlawfully fail, neglect and refuse to comply with the requirements of said sections 1 to 4 inclusive of the act aforesaid” and nothing more, states -no cause of action, and a judgment based thereon cannot stand. ]
    2. -:--: -:--: Constitutional Questions. And said petition failing to state a cause of action, constitu- ■ tional objections to said act, though timely and properly made, will not be considered, but the judgment will simply he reversed.
    Appeal from Cole Circuit Court.- Hon. J. G. Slate, Judge.
    Reversed*.

      T. T. Bailey, Corum S Williams and B. T. Bailey for appellant.

      John T. Barker, Attorney-General, and W. ■ T. Butherford, Assistant Attorney-General, for respondent.
   WOODSON, J.

— This suit was instituted in the • circuit court of Cole county by the prosecuting attorney thereof against the defendant to recover certain penalties prescribed by an act of the Legislature, enacted in 1913. [Laws 1913, pp. 180 and 181.]

A jury was waived, and the cause was submitted to the court in the manner presently to be mentioned, and the court found against the defendant, and imposed the minimum fine. After moving unsuccessfully for a new trial the defendant appealed.

The petition filed by the prosecuting attorney in the cause is in words and figures as follows:

“Plaintiff avers that on the 29th day of March, 1913, the Forty-Seventh General Assembly of the State of Missouri passed an act entitled: ‘An Act relating to railroads, and providing for the health and safety of railroad employees; to prevent the use of dangerous and defective locomotive engines, prescribing the duties of certain officers and providing penalties for violations of the provisions hereof, and repealing inconsistent acts.’
“That said act became effective by operation of law on June —, 1913, it being more than ninety days from the adjournment of the Legislature aforesaid. That sections 1, 2, 3 and 4 of said act (Laws 1913, pp. 180 and 181) are in words and figures following:
“ ‘Section 1. Locomotive engines, how equipped. —It shall be unlawful for any person, firm or corporation, operating a steam railroad within this State, to use or permit to be used any steam locomotive engine, upon its line of road within the State, unless such locomotive engine be equipped with suitable elastic springs of sufficient strength to support the cab, boiler, fire box and appurtenances thereto connected, free, clear and independent, and in such a manner that no part of the boiler, cab or fire box, or apjourtenances thereto, shall strike or rest upon the top of any driving box, truck or trailer box of such locomotive engine; that such springs shall be free and unretarded and of sufficient strength and elasticity to prevent the shock occasioned by the running of such locomotive engine over irregularities in the track,.from being communicated to the boiler, fire box, cab and the machinery thereto connected.
“ ‘Section 2. Lateral motion of driving box, etc.— It shall be unlawful for any firm, person or corporation, operating a steam railroad within this State, to use or permit to be used any steam locomotive engine in the service of hauling’ passengers or freight between stations within this State, whenever the lateral motion in any driving box, truck box, or trailer box, shall exceed one inch, or the combined lateral wear on any two boxes on any one shaft of such locomotive engine exceeds the sum of one inch.
“ ‘Section 3. Gabs, running boards, etc.— It shall be unlawful for any person, firm or corporation, operating a steam railroad within this State to use or permit to be used-any locomotive engine within this State unless the cab and running boards shall be firmly and securely anchored and fastened to the boiler of such locomotive engine in such a manner as to prevent any vibration to such cab or running boards, independent of the boiler thereof while said locomotive engine is in motion, and unless the braces, brackets and fastenings, connected with such cab and running boards are so securely anchored and fastened to the boiler of such locomotive engine in such a manner as to prevent the vibration - thereof while such locomotive engine is in motion. ■
“ ‘Section 4. Valves, cocks, unions, couplings, etc. —It shall be unlawful for any person, firm or corporation, operating a line of steam railroad within this State, to use or permit to be used within the State of Missouri, any steam locomotive engine, unless the valves, cocks, unions, couplings, pistons, pipes, steam chests and other appliances connected with such locomotive engines and used for holding or conducting steam shall be so constructed and maintained as to prevent the escape of steam within the cab or the escape of steam without the cab in such quantity or volume as will obstruct the vision of either the engineer or fireman thereon.’
‘ ‘ Plaintiff avers that on the said twenty-third day of June, 1913, after the above act had become effective by operation of law as aforesaid, defendant operated through said county of Cole and State of Missouri one of its passenger locomotive engines attached to a pasr senger train which left St. Louis, Missouri, at nine o’clock a. m., on said day, bound for Kansas City, Missouri, and which said engine passed through said Cole county, Missouri, without said engine having been supplied and rigged with suitable elastic springs or any of the other improvements required by said sections 1, 2, 3 and 4, of the act aforesaid, and without which it was unlawful to operate said locomotive engine at the time and place aforesaid.
“That sections 9 and 10 of said act provide as follows:
“ ‘Section 9. Penalty. — Any person, firm or corporation, whether owner, lessee, assignee or receiver, operating a line of railroad in whole or in part in this State, violating any of the provisions of this act shall be subject to a penalty of not less than twenty-five dollars, nor more than five hundred dollars for each and every violation of this act, to be collected by a civil action to be brought in the name of the State of Missouri at the relation of the prosecuting attorney of any county through which such road may run or the circuit attorney of the city of St. Louis if such road shall enter such city, and the court shall tax a reasonable attorney’s fee in favor of such prosecuting officer as other costs in the case: Provided, this act shall not apply to any person, firm or corporation operating a line of railroad in whole or in part in this State who or which is unable to comply with any of the provisions hereof, by reason of storms, floods, or other calamitous visitations, but the burden of proof of such fact or facts shall be upon such person, firm or corporation.
“ ‘Sec. 10. Repealing conflicting acts. — All acts and parts of acts which are in conflict with this act are hereby repealed.”
“Plaintiff avers that on said twenty-third day of June, 1913, said defendant, in the county of Cole and State of Missouri, did wilfully and unlawfully fail, neglect and refuse to comply with any of the requirements of said sections 1 to 4, inclusive, of the act aforesaid, while operating said locomotive engine through the county of Cole aforesaid on the date aforesaid, and which said engine at the time and place aforesaid contained none of the improvements provided for and required by said sections 1 to 4, inclusive, or either of them.
“Wherefore, plaintiff prays judgment against said defendant, for the sum of five hundred dollars penalty, together with its costs herein, and a reasonable attorney’s fee to be taxed by the court.”

Thereafter, on the fourth day of August, 1913, appellant filed its amended answer, which was very lengthy, setting up various acts of Congress, enacted under the commerce clause of the Constitution of the United States, and certain other provisions of that venerable instrument, as well as a number from the Constitution of Missouri. The substance of the answer is thus stated by learned counsel for the appellant, viz:

‘ ‘ Appellant at the times mentioned in the petition, and for many years prior thereto, was duly organized and doing business under the laws of Missouri, as a railroad corporation, and was during all of said period engaged as a common carrier of both passenger and freight. Said appellant was likewise during all of said period engaged in interstate and intrastate commerce, both as to freight and passengers,” and its lines extended from Missouri into Arkansas, Nebraska, Colorado,. Oklahoma and other States.
“On said twenty-third day of June, 1913, appellant was operating in Missouri, two hundred and tw;o freight engines, one hundred’ and seven passenger engines and forty-five switch engines, all of which were, during all of the period aforesaid, either directly or indirectly engaged in interstate commerce.
“On June 23, 1913, said respondent, J. H. Lay, as prosecuting attorney of Cole county — a county through which appellant’s line of road runs — commenced an action in the circuit court of said county, before J. Gr. Slate, as judge thereof, to recover a penalty of’five hundred dollars from appellant for an alleged violation of the act above mentioned, in that appellant failed to provide its engine running through said county, on the date aforesaid, with the equipments called for by said act.
“Appellant was duly served with process in said cause, and filed an answer therein. Thereafter, an amended answer was filed, in which all of the facts set up in plaintiff’s petition were specifically admitted to be true. It was likewise admitted that defendant’s said locomotive was not equipped with all of the requirements of sections 1 to 4, inclusive, of said act. Said amended answer then set out at length various matters of defense, in which the constitutionality of said Act of 1913 was attacked on the ground that it was in conflict-with various provisions of the Missouri aud Federal constitutions, and likewise in conflict with va rious provisions of the Federal laws.
“Plaintiff’s counsel filed a motion for judgment on the pleadings, on the theory that the facts pleaded in said amended answer, even if true, constituted mo defense in the case. The trial court sustained plaintiff’s motion for judgment on the pleadings, and entered judgment in behalf of plaintiff for a penalty of twenty-five dollars, together with twenty-five dollars attorney’s fees.”

I. There is no question hut that this court has jurisdiction of the cause, because of the numerous State and Federal constitutional questions involved; yet we decline to pass upon any of them for the reason that the petition states no cause of action against the defendant, for the reason to he presently stated. By reading the Act of the Legislature set forth in the petition, it will he seen it requires the defendant to do numerous things, or rather prohibits it from operating a railroad in this State, after the date stated, without first equipping its engines with the numerous safety devices therein mentioned.

By reading the petition it will he seen that it charges the defendant with no specific violation of the act or any section thereof, hut in general terms states that the defendant did on the twenty-third day of June, 1913, “wilfully and unlawfully fail, neglect and refuse to comply with any of the requirements of said sections 1 to 4 inclusive of the act aforesaid, while operating said locomotive' engine through the county of Cole aforesaid,” etc.

-This petition clearly states no cause of. action against the defendant because it does not inform the defendant with what specific wrong it is charged. Section 1794, Bevised Statutes 1909, provides among other things:' “Second, a plain and concise statement of the facts constituting a cause' of action, without unnecessary repetition. ’ ’

The petition in this case in no manner complies with this section of the statute. It might as well he said, in a suit against the defendant for personal injuries, that a petition which simply charges that the defendant violated “The Fellow Servant Act,” “The Damage Act,” and all of the common law of negligence, would state a good cause of action. Such a petition would be a monstrosity in pleadings. Again by parity of reasoning, and with equal propriety, it might be said that an indictment charging the defendant with being guilty of all of the statutory and common-law crimes of the State would be a valid charge under the Constitution and laws of this State. Neither would be valid, nor does the petition in this case state facts sufficient to constitute a cause of action against the defendant, independent of the constitutional questions presented in the answer. This is too plain for argument.

Entertaining these views, we believe the judgment of the circuit court should be reversed, without considering or passing upon any issue, of law or fact, presented or' attempted to be presented by the pleadings, except the sole one that the petition does not state facts sufficient to constitute a cause of action against the defendant. So believing, the judgment of the circuit court is reversed and judgment is here rendered for the defendant.

All concur, except Graves and Bond, JJ., who dissent; Baris, J., .concurs in result.