author: WALKER, J.

text:
    THE STATE ex rel. HENRY E. PERKINS et al. v. HENRY B. LONG et al.
    In Banc,
    June 28, 1918.
    1. APPEAL: By Belabors in Quo Warranto. The individuals at whose request a proceeding in the nature of quo warranto has been instituted by the prosecuting attorney to determine the right of respondents to exercise the powers of school directors have the right to prosecute an appeal after said proceeding has been dismissed.

      2. -: Affidavit: Made By Agent. An affidavit for an appeal, made by appellants’ attorney as their agent and containing the required statutory allegations, is sufficient.
    3. PLEADING: Liberally Construed. The common-law rule that pleadings must be strictly construed against the pleader has, by statute, been either modified or abrogated in favor of liberal construction. Even upon demurrer it is permissible to infer all facts from those expressly stated that may be implied by fair and reasonable intendment.
    4. -: Consolidated School District: Answer: Exact Date of Filing of Petition. Where the information in a quo warranto contains only the general' charge that the proceedings “were irregular, contrary to the requirements of the law and void,” an averment, in the answer that a petition for the establishment of the consolidated school district was filed with the county superintendent in January, 1916, is sufficiently exact upon demurrer, even in view of the rule that the answer of respondents must contain definite denials of the allegations of the information and affirmative declarations of their rights. The material averment of the filing have been made, objection to the failure to allege the exact date should be made by a motion to make more definite and certain.
    5. -:-:-: Meeting of Voters. Where the answer avers that ten notices of the time, place and purpose of a meeting of the voters of the proposed consolidated school district and five plats of its boundaries were posted for fifteen days in public places! and that in pursuance to them a meeting of the voters was held at: two o’clock in the afternoon of a certain date thereafter, and the information in no wise challenges the fact of the giving of notices, the presumption obtains that the notices specified the exact time when the meeting was to be held, and that the meeting was commenced and held at that time in conformity with the statute.
    6. -: -:--: -: Called to Order By Superintendent. All other requisites to the holding of a valid meeting of the voters to determine the question of the formation of a consolidated school district having been complied with, the absence from respondents’ answer, in the quo warranto proceeding, of an averment that such meeting was called to order by the county superintendent, will not invalidate the district or authorize a demurrer to the answer. That statutory requirement is directory.
    7. -: -:--: Two Hundred Children. If the answer of . respondents contains an averment that the consolidated school district has an area of twelve square miles, it is not defective because it contains no averment that there were two hundred children of school age within its boundaries. The jurisdictional requirement of the statute is in the alternative.

      Appeal from Clinton Circuit Court. — Now. Alonzo I). Burnes, Judge.
    Affirmed.

      Henry E. PerTcins, F. B. Ellis, E. G. Hall for appellants.
    (1)' Tlae demurrer and motion for judgment on the return should have been sustained. The court erred in overruling them, because: (a) The return fails to show that a proper petition was presented. Laws 1913, p. 722. (b) The return fails to show that a meeting was held in the proposed district, or where it was held, (c) The return fails to show that a meeting was held pursuant to such notices. State v. Potter, 191 S. W. 57. (b) The return fails to show that such meeting or any meeting was called to order under the supervision of the county school superintendent. Laws 1913, p.'722. (e) The return fails to show that a meeting was organized and conducted in accord with Sec. 10865, R. S. 1909. (f) The return fails to show who, if anyone was chosen as chairman, or who was secretary, (g) The return fails to show that the petition was filed with the county superintendent of the county in which a majority of the petitioners resided. Laws 1913, p. 723. (h) The return fails to show that such district contained two hundred children of school age. (1) The return fails to show what territory, with the boundaries thereof, if any, was comprised in such proposed district, (j) The return fails to show what specific proposition was submitted to the voters at the special meeting, or what territory was included therein. (2) The creative power by which such consolidated school districts are enabled to override the will and wishes of a vastly more numerous community, composed of the surrounding school districts, whose territory is being taken, without giving them a voice in the proceedings, is principally comprised in the vote taken at the special meeting. If it votes no, there can be no organization; if it votes yes, and antecedent proceedings have been regular, the vote will give life and being to the new corporation. But to have such effect the acts must be certain, reasonably complying with the law granting the power, and designating with certainty well defined boundaries for the operation of such corporation. And unless the proposition voted on specifies the boundaries of the district sought to be formed the vote will not have the effect to create the corporation. School Dist. v. School Dist., 94 Mo. 618; Mason v. Kennedy, 89 Mo. 22. (3) Laws 1913, p. 722, require proceedings of the special meeting to be in accordance with Sec. 10865, R. S. 1909, which requires the chairman and secretary to keep a record of the proceedings. (4) Said Act of 1913, page 722, expressly requires the superintendent of schools to call the special meeting to order. This statute is mandatory. 36 Cyc. 1158-1159; Hope v. Flentge, 140 Mo. 402; State ex rel, v. Tucker, 32-Mo. App. 627; State ex rel. v. School Dist. 3, 163 Mo. App. 253; State ex rel. v. Denny, 94 Mo. App. 559. (5) The rule is that the burden is on respondents to show title to the office claimed, by both, pleading and proof. State ex rel. Harris v. McCann, 88 Mo. 386; State ex rel. v. Gfiovanoni, 59 Mo. App. 43; Mechem Pub. Officers, secs. 490-491; State ex rel. Ewing v. Francis, 88 Mo. 561; State ex rel. Mo. Pac. Ry., 206 Mo. 40; State v. Powles, 136 Mo. 376.

      R. H. Musser, Pross T. Cross, R. E. Culver, for respondents.
    (1). The demurrer has the effect to admit all facts alleged; so that it is shown: “That none of the complainants are resident tax-payers of the consolidated school district; that the district of which respondents are directors was organized under Laws 1913, pp. 721 to 725; that a petition of twenty-five or more residents of the Grayson community petitioned the organization; that thereafter the county superintendent visited the community, investigated the needs and determined the boundaries of a proposed district, called a meeting, gave the notices, made the plats, posted plats, filed copies of plat, petitions, etc., with county clerks and superintendents; that meeting was held; that plat was there; that a vote was had; that fifty-two voted “for organization” and twenty-five “against organization;” that district was declared organized; that respondents were thereafter elected directors and these proceedings certified as required by laws to the county clerks and superintendents of Clinton and Buchanan County; that the district' contained more than twelve square miles of territory,” all of which appears to be all that the law requires. Laws 1913, pp. 721 to 725; State ex inf. v. Gordon, 261 Mo. 631; State ex inf. v. Morgan, 268 Mo. 266; State ex inf. v. Cloud, 192 Mo. App. 322; State ex inf. v. Jones, 266 Mo. 191; State ex inf. v. Clardy, 267 Mo. 371; State ex inf. v. Gleaves, 268 Mo. 100; State ex inf. v. Wright, 270 Mo. 376; State ex inf. v. Smith, 271 Mo. 168; State ex. inf. v. Stouffer, 197 S. W.. 79; State ex inf. v. Moss, 187 Mo. 155: State ex inf. v. Berkley, 140 Mo. 184; State ex inf. v. Francis, 88 Mo. 557; State ex rel. v. Sims, 201 S. W. 910. (2) The court is without jurisdiction to determine this appeal, (a) Sec. 2631,'E. S. 1909, allows the prosecution of the information to final judgment by the relators or their attorney, so that when the information is filed,' the prosecuting attorney is without right to dismiss or discontinue the case, without the 'consent of the complainants. In this case, final judgment was entered. Sec. 2090, E. S. 1909; 2 Ency. Plead. & Prac. 53; 23 Cyc. 1232; 13 Am. & Eng. Ency. Law (2 Ed.) 24. (b) The affidavit for an appeal was made by the attorney of the complainants, and upon its face shows that it is not made by anyone with authority to make it; appeals are purely of statutory origin, and the right of appeal must exist in the person or the agent so applying or no jurisdiction is conveyed. Quo .Warranto is a proceeding solely for the purpose of ascertaining by what right or title respondents or others coming within its provisions, are exercising rights, franchises and privileges which the State in its sovereign power can grant, and the State only is the aggrieved party, and the State only by its properly selected or elected representatives can take appeals. In this case, the prosecuting attorney was satisfied with the facts pleaded in the return and when it was adjudged sufficient by the court did not longer take part in the case. Judgment was entered, and from that judgment the State by no authorized person has taken an appeal. State ex inf. v. Duncan, 265 Mo. 34. The prosecuting attorney is by law the representative of the State within the county that elects him, and he prosecutes for and on behalf of the State all civil and criminal matters of the State, but private rights or injuries have nought to do with the public wrongs, and the public can only be represented through the official of the State who performs every act, made necessary by law, to be done on behalf of the State. The wrongful usurpation of a public office is a public wrong and only the State can be the plaintiff, and the party aggrieved by such action. The State undertakes the prosecution not to punish the private injury, but the wrong done, the public and society is solely the object of the State solicitude. Sec. 2038-2040, R. S. 19.09; State ex inf. v. Taylor, 208 Mo. 442; State ex inf. v. Standard Oil Co., 218 Mo. 345; State ex inf. v. McMillan, 108 Mo. 157; State ex inf. v. Rose, 84 Mo. 198; Hessig v. Atty. General, 104 Ills. 292; State ,v. Railroad, 242 Mo. 275; State ex inf. v. Railroad, 176 Mo.' 687; Churchill v. Walker, 68 Ga. 681; 17 Eney. Plead. & Prac., 456-488. The relators are not parties to the information and have no rights of their' own authority to make any application to the court. Atty. General v. Wright, 43 Eng. Chancery, 447; Commonwealth v. Burrel, 7 Pa. St. 34. The relators have no vested rights in the statute laws of the State and were without any further right of appeal after judgment without the consent of the prosecuting attorney.
   WALKER, J.

This is a proceeding by information in the nature of quo warranto, to determine the right of respondents to exercise the duties of school directors. A return was filed by respondents to the information, to which the appellants demurred. This demurrer was overruled. Appellants refused to plead further, and on motion for judgment on the pleadings by the respondents, appellants’ bill was dismissed, from which judgment an appeal was perfected to the Kansas City Court of Appeals. On motion of respondents, the case was transferred to this court for final determination, on the ground that a constitutional question, to-wit, “title to an office under the State was involved.”

The question to be determined is the sufficiency of the answer. A better understanding of same may be bad by setting forth first the material allegations of the information, which, omitting formal matters as to the official character of the prosecuting attorney at whose relation the action is brought, and that he sues at the request of the individual relators (appellants here) named, avers that “the individual relators are taxpaying citizens and voters of School Districts No. 48 and No. 51 and that said school districts are legally constituted school districts in the county of Clinton, with-proper and legally elected and qualified directors, exercising lawful jurisdiction over and being interested in the territory attempted to be included into and -forming a part of the proposed consolidated school district for which the respondents herein claim to be directors by virtue of an attempted organization under and by virtue of Session Laws of 1913 of Missouri at page 721. That the proceedings for the organization of such proposed district named- and called ‘Consolidated School District No. 1 of Clinton County, Missouri,’ were and are irregular, contrary to the requirement of the law and void; that Anna L. Sims, County Superintendent of Schools, was without jurisdiction or authority to call the special meeting of voters to vote upon the acceptance or rejection of the proposed organization of Consolidated School District No. 1 held on February 25, 1916, at the village of Grayson in the school house of District No. 49; that such meeting was not convened and organized as required by law; that the plat of such proposed consolidated district was not made after a visit to such community by said county superintendent to determine the exact boundaries thereof and said boundary lines were not located according to her own judgment as to form the best possible consolidated district and were not made with due regard to the welfare of adjoining districts; but, on the contrary, the' same were established by interested parties, in "fact, making the plat thereof and improperly influencing said superintendent to adopt the same, although it would cause injury to adjoining districts; that the said special meeting was not properly organized by being opened by the said county superintendent or some one deputized by her and the plat of the proposed consolidated, district and was not sent or taken to and exhibited at said meeting for the use of voters; that said proposed consolidated school district did not contain within its boundary lines two hundred children of school age. That the defendants or respondents herein, to-wit, Henry B. Long, Paul M. Culver, John G. Jones, Henry F. Bland, Shelby Elliott and A. E. Smiley, ever since the 25th day of February, 1916, have claimed and do now claim that they were at said meeting elected directors for said proposed consolidated school district and have been and do now unlawfully usurp the office of school directors, and have used and now Still use and exercise, without legal authority, warránt, power or- right whatsoever, the office of directors and authority over territory including portions of said School Districts No. 48 and No. 51, and for and during said time have claimed and still claim, without legal warrant, grant or right whatsoever, the office of school directors over territory belonging to said Districts No. 48 and No. 51, and do have, use and enjoy all the rights, liberties, privileges and franchises of the said pretended office of school directors of said proposed Consolidated School District No. 1, without authority of law and contrary to the statutes in such cases made and provided.”

This-is followed by the usual prayer for relief authorized in preceedings of this character.

The respondents, for their answer and return say;

“That they are the duly elected and qualified directors-of Consolidated School District No. 1 of Clinton County,' Missouri. That the said W. A. Hord, W. L. Seearce, Newt. Hiett, E. H. Marshall and J. L. Pulliam are .not taxpaying resident voters of the said Consolidated School District No. 1, nor. have School Districts No. 48 and No. 51 any territory over which such school districts are exercising jurisdiction, that Consolidated School District No. 1 is exercising jurisdiction over. Respondents say that Consolidated School District No. 1 was duly organized under and by virtue of Session Laws 1913, at page 721; that on the *- day of January, 1916, there was filed- with Anna L. Sims, County Superintendent of Schools, a petition of more than twenty-five citizens of- the community near Grayson, Mo., and thereafter said county superintendent visited the community and investigated the needs of the community and determined the boundaries for a proposed consolidated district, so locating the boundary lines as in her judgment formed the best possible consolidated district, having due regard also to the welfare of the adjoining districts, and then called a special meeting of all the qualified voters of the proposed consolidated district for considering the question of such proposed consolidation, making the said call by posting within the proposed district ten notices in public places stating the time, place and purpose of such meeting, at least fifteen days before the meeting was called at 2 p. m. of February 25, 1916. That at the time of posting said notices said county superintendent also posted with said proposed consolidated district at least fifteen days prior to the date of the special meeting five plats, and notices were posted within thirty days after the filing of the petition aforesaid, and said county superintendent filed a copy of the petition and plats with each the county clerks of Clinton and Buchanan County, Missouri, and sent one plat to the said special meeting. A certified copy of the proceedings of the said meeting is hereto attached and made part hereof. That at the meeting aforesaid the proposition for the organization of consolidated school district received fifty-two votes and against the organization received twenty-five votes, whereupon said Consolidated School District No. 1 of Clinton county, Missouri, was duly declared created and existing, and that the proceedings of said meeting were properly certified by the chairman and secretary of said meeting to the county superintendent of schools and county clerká of each Buchanan and Clinton County on July 25, 1916.

“That thereafter at the said meeting these respondents were duly elected directors of the said school district as follows: Plenry B.'Long and Paul M. Culver for three years; John G. Jones and Henry T. Bland for a term of two years, and Shelby Elliot and A. E. Smiley for a term of one year, the last named by reason of expiration of their term on April 4, 1916, were reelected at the school election on said date, for a term of three years, and are duly qualified and acting as such.

“Respondents say that they deny all the allegations in the information and complaint herein not specifically admitted by them, and deny that there was any act or thing done by any person or persons which in any wise makes void the organization of Consolidated School District No. 1 of Clinton County, Missouri, and allege the fact to be that all proceedings had therein were in compliance with the law and were publicly done and that the complainants had full knowledge and information of all matters and things at the time they were done, and were present at the special meeting and at a special election called and held on the---day of--1916, and at the regular annual election of said school district, all duly qualified voters resident of the said consolidated school district voted and participated therein and that all acts and things done with respect to the- organization of said school district, and all elections thereafter and the elections of officers, have all been done as required by law, and respondents deny that the complainants or anyone for them have a lawful right to make further inquiry thereunto.

“That said consolidated school district is a district of more than twelve square miles of territory, and that its territorial limits include what was prior to its organization territory of other school districts and of Districts 48 and 51, as said districts were bounded prior to said organization, and over which territory (the territorial limits of Consolidated School District No. 1) said district, by its board of directors, these respondents, now have and are exercising sole and exclusive control, all of which is being lawfully and rightfully done.

“Wherefore the respondents pray the judgment of • the court dismissing the complaint and information and denying the issuance of the State writ of quo warranto and that they be discharged and go hence without day- and the costs hereof be-taxed against the complainants or informers therein.”

To this return relators filed the following demurrer:

“First; Because said return is insufficient.

“Second: Because said return fails to state facts sufficient to show the creation of the consolidated school district for which respondents claim to be acting directors.

“Third: Because said return shows on its face a failure to comply with the provisions of the Acts of 1913, page 721, under which respondents claim.”

Upon the overruling of this demurrer, appellants filed a motion for judgment of ouster upon the pleadings against all of the respondents. This motion was overruled, and appellants refusing to plead further, but standing on their demurrer and motion for judgment, the court ordered that tbeir bill be dismissed, and that the writ of quo warranto which had been issued therein, be quashed, and that respondents have judgment for their costs, etc.

Appellants urge, in support of their demurrer, that the answer and return fails to state:

1. The exact date on which the petition was filed.

2. Or that a meeting was held pursuant to such notices.

3. Or that the meeting was commenced at 2 o ’clock p. m. on the date set.

4. Or that the meeting was called to order, by the county superintendent of schools or. some one deputized by her to call the same to order.

5. Or that the meeting was organized and a record of proceedings kept (except inferentially by saying the proceedings were certified).

6. Or that there were 200 children of school age in the boundaries established.

7. Or that a majority of the petitioners were residents of Clinton County and all qualified voters.

I. It is contended that the appellants had no right to prosecute an appeal of this case after the overruling of their demurrer. This proceeding was brought under Section 2631, Revised Statutés 1909. The prosecuting attorney, under this section, is clothed -with the power to determine the propriety of bringing an action of this character, but after he has exercised his discretion and the suit has been brought, he is not permitted to dismiss or discontinue it without the consent of the individual at whose request it was brought. In short, where the action was instituted not ex officio but upon request, the individual is the real party in interest and the prosecuting attorney (State ex inf. v. Taylor, 208 Mo. 1. c. 452) an instrumentality. The statute, otherwise construed, would present the anomaly of authorizing the assertion in the courts of a right, and while forbidding the official in whose name it was required to be brought to dismiss or discontinue same, upon his failure or refusal to prosecute it to a final determination, to preclude the real party in interest from so' doing. Such a ruling would nullify the statute and limit its effective application to such cases only as are brought by an officer on his own initiative. A reasonable construction of the statute, and one which accords with justice and right, is that where a prosecuting attorney institutes an action of this character upon request, and the court in its discretion permits the same to be brought (State ex inf. v. McClain, 187 Mo. 1. c. 412; State ex rel. v. Rose, 84 Mo. 1. c. 202), regardless of the attitude thereafter of the prosecuting attorney, the real party in interest may prosecute it to a final determination. This is in áccord with that well established rule, consistent with reason, that a statute should be so construed as to render it operative.

The objection made to the form of the affidavit for appeal is frivolous. The affidavit "is made by appellants ’ attorney as their agent, and contains the required statutory allegations (State ex rel. v. Broaddus, 210 Mo. 14, 16.): There is, therefore, no merit in this contention.

Pleading. II. Preliminary to a consideration of the issue involved, it is not inappropriate to advert to the fact that the common-law rule that pleadings must be most strongly construed against the pleader has, py ^pe codes, been either modified or abrogated in favor of liberal construction. Our own statute (See. 1831, R. S. 1909) provides in this regard that: “In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties.” This statute has received frequent judicial application. [Thompson v. Livery Co., 214 Mo. 487; Lee v. Railway, 195 Mo. 400; Ackerman v. Green, 195 Mo. 124; Sidway v. Mo. Land etc. Co., 163 Mo. 342; Baird v. Cit. Ry. Co., 146 Mo. 265; Vogelgesang v. St. Louis, 139 Mo. 127; Overton v. Overton, 131 Mo, 559.] Even on demurrer, it is helcl permissible to infer all facts from, those expressly stated, that may be implied by fair and reasonable intendment. [Hood v. Nicholson, 137 Mo. 400; Embree v. Patrick, 72 Mo. 173.]

The general rules thus announced may -serve as hallmarks to guide us in determining the sufficiency of the pleading under review. The purpose of the statute authorizing the establishment of consolidated school districts is to give children opportunities for more extended education than is now afforded by the common schools. Under this statute, the people in the rural districts are enabled to establish and maintain high schools, heretofore confined to our cities and towns. The increased opportunities these districts afford will tend to stimulate a desire for higher education, which will ultimately result in an increase in the enrollment of students at our State University and Normal Schools.

Keeping the purpose of the law in view, therefore, and the results that may reasonably be expected to follow proceedings thereunder, we are authorized, without violating any canon of construction, to liberally construe the pleading under review.

III. It is contended that the exact date of the filing of the petition with the County Superintendent of Schools for the establishment of the consolidated district, should have been stated in the answer. Not only does such filing affirmatively appear, but it? is stated to have been made in January, 1916. Looking to the information filed by the appellants, and to which this answer is intended to respond, we find no specific allegation as to a lack of the filing of the petition for the establishment of consolidated district with the county school superintendent. The information contains only a general averment of unauthorized action by the county superintendent. This is, at best, but a conclusion. Proceeding on the assumption, however, no demurrer having been filed to the information, that the answer herein shall contain definite denials of the allegations of the information and affirmative declarations' of the rights of the respondents (State ex inf. v. Clardy, 267 Mo. 1. c. 381), we find that the averment of such filing having been made, the requirements of the law are sufficiently complied with. The material' fact appearing to have been pleaded, the objections to the failure to allege the exact date should have been submitted by a motion to make more definite and certain, instead of a demurrer.

The contention that a meeting of the voters of the proposed consolidated district was not held in pursuance of the requirement of the statute, is met by the presence in the answer of an averment that such meeting was so held. The notice of the time, place, and the purpose of such meeting is likewise stated to have been given by the posting of such notices. No specific allegation appearing in the petition challenging the fact of the giving of such notices, the presumption obtains not only that they conformed to the requirements of the statute in specifying the exact time when the meeting was to be held, but that it was commenced and held as therein stated. All the other requisites to the holding of a valid meeting to determine the question of the formation of the district having been complied with, the absence from the pleading of an affirmative statement that such meeting was not called to order by the County Superintendent of Schools will not be held to invalidate the formation of the district. Such requirement is in no sense jurisdictional, and the failure of the superintendent to comply with same can wTork no prejudice to those whose interests are to be affected. We, therefore, hold this requirement of the statute, under the facts in this case, to be directory.

The averment that the proceedings of the meeting were certified to by the chairman and secretary to the County Superintendent of Schools and county clerks of Buchanan and Clinton counties constitutes a sufficient statement as to the organization of the meeting, and that a record of the proceedings was kept. There could, in the very nature of things, have been no formal certification such as is alleged to have been made, and as- is required by law, unless there was something to certify.

It is urged that there is no averment that there were two hundred children of school age in' the boundaries of the district sought to be established. This, as we held in State, ex inf. Simrall v. Clardy, supra, is a jurisdictional requirement in the organization of the district (Laws 1913, p. 722, Sec. 3). If it was unqualified or stood alone, the absence of its averment from the pleading would render the latter insufficient, and hence subject to demurrer. We find, however, that the requirement is in the alternative;- the statute being that the district to- be organized shall have an area of twelve square miles, or an enumeration of at least two hundred children of school age. The averment as to area in regard to the proposed district is definitely made, and hence the contention must fail.

It sufficiently appears that the petitioners were not only residents of the counties, but of the original districts out of which the consolidated district was formed, and the contention in regard to the lack of definiteness in regard to this averment must, therefore, be overruled.

The substantial requirements of the law having been complied with in the answer, the overruling ‘by the trial court of the appellants’ demurrer thereto was authorized, from which it follows that the judgment should be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    LEVI T. BURTON, Administrator of Estate of MAY BURTON, Appellant, v. CHICAGO & ALTON RAILROAD COMPANY.
    Division One,
    July 5, 1918.
    1. APPELLATE PRACTICE: Motion to Quash Execution and Retax Costs: Treated as One. Defendant filed its motion to tax costs, and that being overruled filed its motion to recall, quash and set aside an execution theretofore issued on a judgment in favor of plaintiff, and in said motion and as one ground thereof set forth in full the prior motion to tax costs, which motion was sustained as to the matter of retaxing costs, but the judgment ignored the other grounds set up in the motion for quashing the execution. ~ Thereupon plaintiff filed his motion to set aside the “judgment upon the motion to retax costs,” which being overruled he appealed. Held, that, as the motion to quash the execution and to retax the costs were treated as one motion at the hearing, and as the bill of exceptions covers the proceedings had at said hearing, plaintiff’s appeal from the order retaxing the costs is maintainable, and the court’s action is for review. Appellant is not to be denied a review because he followed in the footprints made for him t¡y respondent.
    2. COSTS: In Action for Damages. Even though the petition in an action for damages contains two counts and the court gives a peremptory instruction to find for defendant on the first count, if the verdict and judgment are for plaintiff on the second count, it is the duty of the clerk to tax all the costs against defendant, for the statute (See. 2268, R. S. 1909) says that “in all actions not founded on contract, if the plaintiff recover any damages he shall recover his ■ costs.” The costs being so taxed, a motion to retax them implies a subsequent judicial investigation and determination by the court.
    3. -: Retaxed at Subsequent Term. The clerk having upon the return of a verdict for damages for plaintiff upon one count of his petition in an action ex delicto, entered a judgment in which he taxed all the costs against defendant, as the statute required, a motion to retax costs filed by defendant at a subsequent term was too late, and the court had no jurisdiction to entertain it. The motion to retax must be filed at the term' at which the judgment was entered.
    Appeal from Bandolph Circuit Court. — Hon. Alex. H. Waller, Judge.

      Reversed.

      Aubrey B. Hammett for appellant.
    (1) The costs were adjudged against defendant hy the judgment of the trial court. Defendant could only complain of this hy motion filed within four days after-rendition of judgment. It could not raise point hy motion at term subsequent to that at which judgment was entered. State v. O’Briant, 176 Mo. 443; Ashby v. Glasgow, 7 Mo. 320; Silex Savings Bank v. Ellis, 162 Mo. App. 395; Ramsey v. Rothwell, 168 Mo. App. 271; Mann v. Warner, 22 Mo. App. 577; Bosley v. Parle, 35 Mo. App. 232; Paul v. Minn. Threshing Co., .87 Mo. App. 647. (2) This is an action ex delicto and therefore Sec. 2268, R. S. 1909, controls, and if plaintiff recover any damages he shall recover his costs. Ozias v. Haley, 141 Mo. App. 637. (3) Under the testimony part of the witnesses were subpoenaed by plaintiff to testify on the first count and some of them actually did testify thereupon.

      W. P. Pinkerton and Scarritt, Scarritt, Jones & Miller for respondent.
    (1) The plaintiff appeals to this court from an order of the court below retaxing costs on the 23rd of December, 1914. His record contains no bill of exceptions covering this alleged order, but does contain a bill of exceptions covering the proceedings had and exceptions taken at the hearing on defendant’s motion to quash and recall execution, but as plaintiff is not appealing from the court’s order sustaining defendant’s motion to quash the execution, there is nothing before this court for review. State ex rel. McKinney v. Pulliam, 104 Mo. App. 94; Graff v. Dougherty, 139 Mo. App. 56; Corby v. Tracy, 62' Mo. 515; Saddlery Co. v. Bullock, 86 Mo. App. 92; Boothe v. City of Fulton, 85 Mo. App. 16; Wainwright v. Missouri L. & M. Co., 161 Mo. App. 374; Bohn v. Lucks, 165 Mo. App. 701. (2) The court’s order taxing certain costs in this case was proper and valid. Sec. 2285, R. S. 1909; Sec. 2263, R. S. 1909; Buckman v. Ry. Co., 121 Mo. App. 304; Dulle v. Deimler, 28 Mo. 583; State v. Vogel, 14 Mo. App. 187; Cautborn v. Berry, 69 Mo. App. 410; Turner v. Butler, 66 Mo. App. 380; Coart v. Hill, 33 Mo. App. 116; Mann v. Warner, 22 Mo. App. 577; Bosley v. Parle, 35 Mo. App. 232; State v. Railroad, 78 Mo. 575; Dawson v. Waldheim, 89 Mo. App. 250; Witten v. Robison, 31 Mo. App. 525.
   WOODSON, J.

This is an appeal from an order and judgment of the circuit court of Randolph County setting aside and quashing an execution issued on a judgment rendered in the ease of Levi T. Burton, Administrator of the Estate of Mary Burton, deceased, against the defendant, and retaxing the cost therein. The appeal was taken to the Kansas City7 Court of Appeals, and by that court the cause was transferred to this court because a constitutional question was involved.

The facts are practically undisputed, and are substantially as follows, as shown by the appellant’s statement of the case and abstract of the record filed in this court, viz:

“Plaintiff’s decedent was killed upon a railroad crossing by one of defendant’s trains. Plaintiff brought suit in two counts. At close of all the evidence the court gave a peremptory instruction for defendants on the first count of the petition. The second count was under the humanitarian law, and plaintiff recovered three thousand dollars verdict thereupon. Defendant appealed to the Kansas City Court of Appeals. While the appeal was pending the Supreme Court of Missouri handed down the opinion in the Boyd case, 249 Mo. 110, holding that only the penal sum of two thousand dollars could be recovered for the death of an unmarried adult when there was no proof of pecuniary loss on the part of plaintiffs. Following this opinion the Kansas City Court of Appeals rendered such judgment as should have been rendered upon the whole record in the case and affirmed the judgment of the lower court in the sum of two thousand dollars. Mandate issued to the clerk of the circuit court whence the appeal was taken, and by the said circuit clerk spread upon the records of that court. Execution issued from said circuit court against the defendant for two thousand dollars and interest thereon from date of judgment in the said circuit court and all the costs incurred in the lower court. Defendant filed motion to retax certain costs that was claimed by it to be made in the defense of the first count upon which the court gave a peremptory instruction for defendant. The court overruled this motion and later on during the same term, December 23, 1914, set aside its said order and sustained said motion in part, retaxing $129.50 of the cost and taxing it against plaintiff. From this order plaintiff appealed to this court.”

The defendant’s motion to quash and recall the execution was in words and figures as follows:

“Comes now the defendant and moves the court to recall, quash and set aside the execution heretofore issued in this cause on behalf of plaintiff against defendant, for the following reasons, to-wit:

“1. Because there is no judgment herein in this cause on which to predicate or base the execution.

“2. Because the judgment of $3000 entered against defendant at the February term, 1912, of this court has been duly appealed from and lodged in the Kansas City Court of Appeals, and bond was duly given as required by order of the court and operated as a supersedeas bond and no execution can lawfully be issued, predicated or based upon said judgment. Said judgment has never been affirmed, set aside or reversed by the Kansas City Court of Appeals or this court, and no judgment has been entered in this cause setting aside, affirming or reversing this judgment, and the case having been duly appealed and supersedeas bond given and approved by this court, no execution can lawfully issue in this cause..

“3. Because no lawful judgment has been or can be rendered and entered in this court on the mandate of the Kansas City Court of Appeals, which has been sent to the clerk of this court and filed herein and entered by said clerk in the records of this court, and the Kansas City' Court of Appeals had no authority under the law to execute and issue the mandate heretofore referred to, and the same was not within the power or jurisdiction of said court.

“4. Because the clerk of this court had no right, authority or power under the law to enter upon the records of this court said mandate or mandates executed and issued by the Kansas City Court of Appeals.

“5. Because not to recall, quash and set aside execution will be to deprive defendant of its property without due process of law, contrary to Section 30 of Article 2 of the Constitution of Missouri, in this, that it will take from defendant its property without judgment or ruling of the court and under a mandate that the Kansas City Court of Appeals had no right, jurisdiction or authority to execute and issue; and it would also be a denial to defendant of the equal protection of the laws and the taking of its property without due process of law contraiy to Section 1 of Article 14 of the Amendments to-the Constitution of the United States.

“6. Because said execution was unlawfully issued and is for an excessive sum or amount in any event.

“7. Because the court erred in overruling defendant’s motion to tax or re-tax costs in this suit, which order was entered .on or about December 8, 1914. Said motion to tax costs is made a part of this motion, and is in words and figures as follows:

“ £1. Comes now the Chicago & Alton Railroad Company in the above entitled cause and states to the court that at a trial of this cause at the February term, 1912, of the Circuit Court of Randolph County, Missouri, at Moberly, the jury returned a verdict in favor of the defendant, the Chicago & Alton Railroad Company, on the first count of the petition, upon which verdict the court duly entered judgment in favor of defendant and against plaintiff, which judgment was unappealed from and has become final.

“ ‘2. Defendant further states that for the purpose of defending the allegations made by plaintiff in the first count of his petition it caused' to be subpoenaed the following witnesses, who, duly and in obedience to subpoenas legally served, attended the trial of the above cause above set forth, on the‘first count of the petition as witnessed for defendant, and duly at the time of said trial claimed their witness fees for attendance, as is evidenced by the records of this court: Cliff Taylor, two days, sixty miles, $5.50; Mrs. Cliff Taylor, two days, sixty miles, $5.50; C. Maupin, two days, seventy-six miles, $6.30; J. A. Denny, two days, fifty miles, $5; R. N. Bagby, two days, fifty miles, $5; C. H. Woods, two days, sixty miles, $5.50; H. P. Hawkins, two days, sixty miles, $5.90'; J. F. Becket, two days, eighty miles, $6.50; C. D. Williams, two days, eighty-eight miles, $6.90; H. Tillery, two days, eighty-eight miles, $6.90; E. L. IIacidey, two days, eighty-eight miles, $6.90; L. K. Bailey, two days, eighty-eight miles, $6.90; E. L. Jones, two days, eighty-eight miles, $6.90; E. R. Elledge, two days, eighty-eight miles, $6.90; G. F. Fishbeck, two days, eighty-eight miles, $6.90; R. W. Compton, two days, eighty-eight miles, $6.90. Total $100.40.

“ ‘3. Defendant further states that all of the above named witnesses were witnesses only as to issue made by the first count of plaintiff’s petition and none other, and were subpoenaed by defendant solely for the purpose' of making a defense on the issues as joined by the first count of plaintiff’s petition; that said witnesses duly claimed their witness fees and mileage as required by law, as is evidenced by the records of this court, and plaintiff having been the losing party on the first count of the petition and defendant the winning party, defendant states that the above items of costs should be taxed against plaintiff.

“ ‘4. Defendant further states that the fees of George Gibson, Sheriff, for Subpoenaing the above witnesses, amounting to $13.20, should also for the reasons above given be taxed against the plaintiff, and defendant prays the court to so tax said costs.

“ '5. Defendant further states that all other costs made by the clerk of the court and other officers, other than those above mentioned, in connection with the first count of the petition, should likewise be taxed against the plaintiff, and defendant prays the court to so tax said costs.

“ '6. Defendant further states that the following witnesses for plaintiff claimed witness fees and mileage as follows: L. E. Markland, two days, fifty miles, $5; Edward Shafer, two days, fifty-eight miles $5.40; C. E. Biswell, two days, $2.00. Defendant states that it is its information and belief that said witnesses were not witnesses on any other count of the petition than the first count and that the witness fees of said witnesses should be taxed against the plaintiff, and defendant prays the court so to do, together with the sheriff’s fees covering the subpoenaing of said witnesses, as shown by the records of the court.

“ 'WHEREFORE, defendant prays the court to tax ■ against plaintiff the above items of cost as set forth in the different paragraphs of this motion, or so much of these items of costs as under the law should be taxed against plaintiff, and for such other items of cost not herein specifically mentioned and such other relief and orders as may be proper in the premises.’ ”

The defendant introduced in evidence the bill of costs as taxed by the clerk during the term of the court, at which the judgment for $3000 was rendered for the plaintiff, the same being set forth in defendant’s motion to retax same; it also introduced .oral testimony tending to prove the allegations of the motion to the effect that the winesses named herein were subpoenaed for the sole purpose of proving or disproving the cause of action stated in the first count of the petition.

Under the evidence the court found the facts for the defendant and rendered the following judgment to retax the costs.

“Now at this date the court having seen, heard and considered defendant’s motion to retax the costs of this suit incurred, and being now fully advised of and concerning the premises, doth sustain said motion and the amount claimed by the defendant, to-wit, the sum of $129.50, be and the same is hereby taxed against plaintiff, Levi T. Burton, administrator.”

Thereafterwards, during the same term, to-wit, the 23rd day of December, 1914, plaintiff filed his motion asking that said judgment be set aside, and he be given a new hearing, which motion, omitting the caption, was as follows, to-wit:

“Now comes the plaintiff and prays the court to set aside its judgment of December 22nd upon motion to retax costs wherein the costs made on the first count of plaintiff’s petition was taxed and adjudged against plaintiff in the sum of $129.50, for the reasons:

‘ ‘1st. That the same is against the law.

“2nd. That the same is against and contrary to the evidence.

“3rd. Because the same is contrary to Section 2263, Revised Statutes of Missouri for 1909.

“4th. Because all the costs of this suit were adjudged against defendant by the first judgment in said cause rendered and defendant ' could not be heard to complain except by motion for new trial filed within four days after the rendition of said judgment.

5th. Because the witnesses whose fees have been taxed against plaintiff were not supoenaed according to law.

“6th. Because in the hearing on said motion, the court erroneously admitted improper evidence offered by the defendant over the objection of the plaintiff.”

This motion was overruled and the plaintiff duly appealed as previously stated.

I. Counsel for defendant presents a preliminary question by which it is contended that the plaintiff is in no position to have this court pass upon the merits of the motion; that question is stated in this language:

“The plaintiff appeals to this court from an order of the court below, retaxing costs on the 23rd of December, 1914. ITis record contains no bill of exceptions covering' this alleged order, but does contain a bill of exceptions covering the proceedings had and exceptions taken at the hearing on defendant’s motion to quash and recall execution, but as plaintiff is not appealing from the court’s order sustaining defendant’s motion to quash the execution, there is nothing before’ this court for review.”

This contention is not tenable, for the reason that defendant treats and states that the motion to quash the execution and to retax the costs in the case was treated and considered as one motion, and the plaintiff had the legal right to do likewise. The last clause of the seventh reason assigned by counsel for defendant in their motion to quash and recall the execution reads thus:

“Said, motion to tax cost is made a part of this motion and is in words and figures as follows: ’ ’

Then follows the motion to retax previously copied.

Counsel for the plaintiff cannot be punished for following in the footprints of counsel for defendant, which designates the motion to retax cost as a part of the motion to quash the execution.

We, therefore, rule this question against the defendant.

II. Counsel for plaintiff contends that the order and judgment of the circuit court retaxing the cost in the case at a term subsequent to that at which the costs were originally taxed is at least erroneous, if not absolutely void, for the reason that the court had no jurisdiction to make said order regarding this character of costs.

He states his position thus: “Defendant could only complain of this by motion filed within four days after ' rendition of judgment. It could not raise point by motion at term subsequent to that at which judgment was entered. ’ ’

The cause of action out of which this motion arose was an action ex delicto, and was governed by Section 2268, Revised Statutes 1909, which reads:

“In all actions not founded on contract the damages claimed in the petition shall determine the jurisdiction of the court, and if the plaintiff recover any damages he shall recover his costs.”

Without attempting to pass upon the correctness of the position taken by counsel for'defendant in their motion to quash the execution and retax the cost, yet under the mandate of this statute there can be no question, in the absence of a showing to the contrary, made during the term of the court at which the trial of the cause was had and the - final judgment rendered thereon, but what it was the duty of the clerk of the circuit court to tax all the cost against the defendant, just as the record in this case shows he did. In the absence of a showing to the contrary by the record or by e\ idence aliunde the presumption is that the words of the statute that “he shall recover his costs” means all of the costs of the case; but whether that is true as a matter of fact is quite a different question. Counsel for defendant recognized the correctness of this statement of the law by the introduction of oral testimony in support of the allegations of their motion to retax, to the effect that the witnesses mentioned therein were subpoenaed solely for the purposes of proving or disproving the cause of action stated in the first count of the petition. This being true, and the undisputed evidence of the case showing that the clerk did tax these costs during the term of the court at which the judgment was rendered, the law is plain that, even though it might be conceded that the contention of counsel that these costs should have been taxed against the plaintiff is correct, the defendant was not entitled to have the court retax these costs at a subsequent term of the court, because such action on the part of the court necessarily required a hearing of .evidence aliunde the record, a finding of facts and sc judicial determination of the question, as well as the amount of costs that should he retaxed.

After reviewing the authorities upon the subject, Pox, J., in the case of State ex rel. v. Keokuk & Western Railroad Co., 176 Mo. 443, 1. c. 450, clearly states the law in this language:

“It will be observed that all the cases treating of applications to tax costs at a term subsequent to the one at which final judgment was rendered, make clear the distinction of taxing costs, which are definite and fixed by law, and costs which require judicial action in determining the. amount.”

All the authorities agree that the former may he retaxed at any term of the court. Such action is more in the nature of a ministerial duty, and requires no judicial action on the part of the court. Where the costs are definite and fixed by statute, the clerk in the first instance is by law required to tax the costs of the case, which of course is purely a ministerial duty, and when the court is requested to review the clerk’s action in that regard, it is exercising a similar duty, simply correcting errors made by the clerk in trying to obey the statutes; but not so in regard to the taxation of costs which requires judicial investigation and determination. In such a case the clerk has no authority whatever to act, except as ordered by the court; in that case the court alone can order the costs taxed or retaxed, which must be done upon judicial investigation and determination, and must be done during the term of the court at which final judgment in the cause is rendered, for it is elementary that with the lapse of the term at which the final judgment is rendered the jurisdiction of the court over the cause ceases.

We are, therefore, of the opinion that the circuit court, at the time it acted, had no jurisdiction to subpeona witnesses, try the facts stated in the motion to retax, or to make the order or render the judgment retaxing the costs complained of in this appeal.

III. In view of the rulings announced in paragraph two of this opinion, it becomes unnecessary for us to decide the question: would the defendant have ^een entitled to have the costs retaxed as asked in its motion, had it been timely filed? or to decide the constitutional questions presented by counsel for defendant.

For the reasons stated, the judgment of the circuit court retaxing the costs is reversed.

All concur.


author: BOND, C. J.

text:
    CAROLINE ROTTINK v. JOHN H. NAGLE et al., Appellants.
    Division One,
    July 5, 1918.
    1. LIMITATIONS: Fraudulent Conveyance: Grantor’s Adverse Possession. Title to land may, by the Statute of Limitations, be reinvested in a fraudulent grantor. A grantor by deed, whether in good faith and a valuable consideration, or to avoid the payment of his áebts, may reacquire the fee-simple title to the lands conveyed, by adverse possession thereof for the statutory period of ten years.
    2. -: -:-: Notice of Adverse Claim. In order to make continuity of possession the basis of an adverse holding by the grantor or his heirs, after the delivery of his deed, he or they must, by words, acts or conduct, apprise the grantee that he is claiming title and possession of the land in defiance of the covenants of his deed; for until such notice is expressly or impliedly given to the grantee he will be entitled to rest secure upon the legal presumption that the continued possession by the grantor is in subservience to the grant.
    3. -: -: -: -: Sufficient Evidence. Testimony that the owner of land, in order to save it from the effect of pending litigation, voluntarily made and recorded a deed to his father-in-law, and thereafter, for sixteen years and up to the time of his death, remained in exclusive possession, making improvements. discharging all existing mortgages, paying all the taxes, and claiming to be the owner, and that after his death his children conveyed the land to his wife and that she thereafter for the two years prior 'to bringing suit continued in possession, was sufficient to establish the possession of said grantor and his said wife as being adverse, continuous, hostile, notorious and under claim of title for the statutory period of ten years.

      Appeal from St. Clair Circuit Court. — lion. G. A. Calvird, Judge.
    Affirmed.

      Geo. A. Mclntre and Hargus S Johnson for appellants.
    (1) To warrant a decree in this case, the evidence should be of a cháracter so clear, definite and positive as to leave no room or reasonable ground for hesitancy or doubt in the mind of the chancellor. Ferguson v. Robinson, 167 S. W. 453; Smith v. Smith, 201 Mo. 547; Reed v. Sperry, 193 Mo. 173; Johnson v. Quarles, 46 Mo. 423. (2) Where a party is in possession of land in privity with the rightful owner there must be an explicit disavowal and disclaimer of holding under that title brought borne to tbe owner, to constitute adverse possession. McCune v. Goodwillie, 204 Mo. 338; Heckescher v. Cooper, 203 Mo. 278; Missouri Lumber & Mining Co. v. Jewell, 2'00 Mo. 707; Coberly v. Coberly, 189 Mo. 17; Meyer v. Meyer, 105 Mo. 431;. Budd v. Collins, 69 Mo. 129; Hamilton v. Boggess, 63 Mo. 249; Wilkerson v. Thompson, 82 Mo. 330. (3) Where a deed is made to hinder, delay or defraud creditors, grantor’s possession is in subordination to the true title, and the Statute of Limitation does not run. Williams v. Higgins, 69 Ala. 524; McClanahan v. Stevenson, 91 N. W. 925, 118 Iowa, 106; Hads v. Tiernan, 25 Pa. Sup. Ct. 14. (4) He who comes into a court of equity must come with clean hands. Derry v. Fielder, 216 Mo. 193; Houtz v. Heilman, 228 Mo. 655, 128 S. W. 1006; Seibel v. Heigham, 216 Mo. 137; Creamer v. Bivert, 214 Mo. 473; McNear v. Williams, 166 Mo. 358; Ward v. Hartley, 178 Mo. 135; Peddleton v. Asbury, 104 Mo. App. 723.

      Waldo P. Johnson for respondent.
    (1) The possession of John Rottink, under whom plaintiff claims, was hostile and adverse to defendant. 1 Cyc. 1040; Brown v. Bro^n, 106 Mo. 611; Lumber Co. v. Craig, 248 Mo. 322; Turner v. Hall, 60 Mo. 271.; Stone v. Perkins, 217 Mo. 586; Wilkerson v. Eilers, 114 Mo, 254; Scruggs v. Scruggs, 43 Mo. 142.
   BOND, C. J.

I. Action to try the title to one hundred and sixty acres of land in St. Clair County, Missouri.

The petiton alleges that on August 16, 1898, and theretofore, one John Rottink, the husband of the plaintiff herein, owned and was in possession ^ certain land in St. Clair County, Missouri; that on that date he executed a deed conveying said land to John H. Nagle, the defendant, and that said deed is on record in the office of the Recorder of Deeds of St. Clair County; that said deed was made without consideration and was never delivered to said Nagle or accepted bykhim, but that John Rottink remained in the adverse possession thereof until the date of his death in October, 1914; that John Rottink died intestate, leaving as his only heirs at law Caroline Rottink, plaintiff, and five children; that said children, by proper conveyances, conveyed said land to this plaintiff, who alleged ownership of same in fee and actual, open and notorious possession.

The petition further alleged that defendant John H. Nagle was adjudged to be of unsound mind and incapable of managing his affairs and that defendant James Carter was appointed, qualified and is acting as guardian of his property and estate.

James Carter, as guardian of said. Nagle, filed an answer in which he admitted the ownership in 1898 of said land by John Rottink; that since that date the legal title has been in the name of John Nagle; admitted that said Nagle was adjudged df unsound mind; that he was his legally appointed guardian; admitted the death of John Rottink, and denied plaintiff’s interest in and title to said land, except in so far as her dower interest therein was concerned.

Ralph P. Johnson, the duly appointed guardian ad litem, filed an answer of the same import.

The evidence showed that some years before his death Rottink went to Texas, where he purchased some lands which he traded for the land in' suit; that litigation arose as to the Texas land purchased and fearing he might be cast in that suit he deeded the Missouri land, which he got for his Texas land, to John Nagle, his father-in-law; that John Rottink did not borrow money from Nagle at the time he acquired the Missouri farm; that Rottink had the deed to Nagle recorded “to clear him from the Texas land trouble;” that he made improvements on the Missouri land, paid all the taxes thereon up to the time of his death and discharged all the mortgages thereon, and claimed to own the same by full acts of ownership through himself and his real estate agents.

The testimony of James Carter, guardian of John Nagle, showed that he never had anything to do with the land in question; that he had paid no taxes thereon; that he had collected no rents therefrom; that he had made no improvements, and that John Rottink had not acted as his agent or representative in any capacity; and that John Rottink did not say anything to him about owing Nagle money. The guardian of Nagle’s estate did not inventory this land, nor discover any indebtedness from Rottink to Nagle. The administrator .of Rottink’s estate collected the rents of his land after his death.

The trial before the court resulted in a finding and judgment • that the title to said land was vested in plaintiff in fee simply by the Statutes of Limitations.

Defendants appealed.

II. The learned trial judge put his judgment in favor of plaintiff on the fact that possession of the lands was held bv her"husband and his heirs / .-i i i i i* *ij. (through whom she claimed) for eighteen years and upon evidence showing that this possession was actual, undisturbed, continuous, exclusive, open and notorious and under a claim of title in the possessors.

That title to lands may be reinvested in a fraudulent, as well as a bona-fide grantor, by the Statute of Limitations, is the settled law in this and other states. In.a recent decision (Robinson v. Reynolds, 176 S. W. 1. c. 5) the cases are cited and the rule formulated, viz.:

“A grantor by deed, whether in good faith and for a valuable consideration, or to avoid the payment ■ of his debts, may reacquire a fee-simple title to the lands conveyed, by adverse possession thereof for the statutory period of ten years. [Brown v. Brown, 106 Mo. 611; Knight v. Knight, 178 Ill. 1. c. 558; Freeman v. Funk, 85 Kan. 1. c. 477; Kelly v. Palmer, 91 Minn. 1. c. 135; Snyder v. Snover, 56 N. J. L. 20; Chatham v. Lonsford, 149 N. C. 363.]

“The general rule is that, in order to make continuity of possession after the delivery of the deed the basis of an adverse holding, the grantor must by words, acts, or conduct apprise the grantee that he is claiming title and possession of the land against the covenants of his deed; for until such notice is expressly or impliedly given to the grantee he will be entitled to rest secure upon the legal presumption that the continued possession of the land by the grantor is in subservience to the grant. [Meyer v. Hope, 101 Wis. 123; Stevens v. Whitcomb, 16 Vt. 121.] But when the character of such possession is adequately changed the grantee must recognize the altered status, for, if he permits the adverse possession to exist without cessation and without challenge for ten years, the grantor maintaining it may be reinvested with the fee.”

The statement of the above rule is quoted because the case in which it was announced was not officially published. There was no disagreement on the part of the members of this court as to the applicatory law in that case, the only " difference of opinion being as to the facts calling for its application, the majority of its judges taking the view that under the evidence the defendant in that case was only in adverse possession from December 23, 1905, until the institution of that suit in 1910, and hence was not in a position to rely upon the bar of the statute of ten years. In the instant ease the possession of plaintiff and her grantors for eighteen years was undented and the character of that possession as being adverse, continuous, hostile and notorious and under a claim, of title to the lands, is not controverted by any evidence in the record, but was abundantly shown on the trial of the case.

In those circumstances it is wholly unnecessary to rule on the other points suggested in the argument. Under the facts disclosed in this record the possession of plaintiff and her grantors and its continuity for the statutory period and the fact that it was hostile and under a claim of title to the land,, was established by evidence excluding’ any reasonable doubt. It is immaterial, therefore, whether the deed from Rottink to Nagle was not only recorded, but actually delivered to Nagle, for on the facts shown in this record an indefeasible title in fee simple was vested by the Statute of Limitations in the heirs of John Rottink.

The judgment of the trial court was correct and will be affirmed. It is so ordered. All of the judges concur except Woodson, J., who dissents.


author: GRAVES, J.

text:
    THE STATE ex rel. CITY OF SEDALIA, Appellant, v. PUBLIC SERVICE COMMISSION et al.
    Division One,
    July 5, 1918.
    1. FRANCHISE ORDINANCE: Contract. Tbe passage of an ordinance by tbe council of a city of tbe third class and its acceptance by a water company, by which it is provided that the rent on city hydrants shall be a named sum per year, constitute a contract between the city and company, whether or not the ordinance is submitted to a vote of the people.
    2. WATER RATE: In Excess of Ordinance Rate: Power of Public Service Commission. The Public Service Commission of Missouri has the lawful right to fix the rate for hydrant water, so- far as the city is concerned, in excess of the rate fixed by an existing ordinance.

      3. PUBLIC SERVICE ACT: Police'Regulation: Legislative Delegation of Power. The Public Service Act of 1913 and the fixing of reasonable rates to be charged by a public utility company are traceable to the police power of the State, and the Legislature can delegate to the Public Service Commission the power to ascertain and fix reasonable rates for services rendered to the public by divers public service corporations, subject to court review of the question of reasonableness.
    4. POLICE POWER: Abridgment: Nullifying Existing Contracts. The State of Missouri cannot divest itself of the right to exercise its police power. The Constitution declares that “the exercise of the police power of the State shall never be abridged,” and such power cannot be contracted away, nor can the Legislature authorize a municipal corporation to contract it away. A. statute which authorizes a city to contract for water service to the city and the general public may be so modified as to delegate to a legislative agent the power to fix rates different from those mentioned in such contract, for the Legislature cannnot authorize a municipal corporation and a public service corporation to mate a contract which will preclude the sovereign power of the State from fixing reasonable rates irrespective of the contract.
    Appeal from Cole Circuit Court. — Hon. J. G. Slate, Judge.
    Appirmed.

      R. S. Robertson for appellant.
    (1) Councils of cities of the third class have the power and authority to enter into valid and binding contracts for furnishing the city water for fire hydrants without the necessiy of submitting such contracts to the voters. R. S. 1909, sec. 9239. (2) Municipalities of Missouri are not creatures of the Legislature, hut are creatures of the Constitution, and therefore the Commission was in error in holding that the Legislature had the right to vest in the Commission the power to either legislate for the city, or to act for the city, in waiving the Benefits accruing to the city under a contract entered into by the city prior to the creation of the Public Service Commission. Mo. Constitution, art. 9; Merchants National Bank of San Diego v. Esconvido Irrigation District, 77 Pac. 939: Tacoma Ry. and Power Co. v. City of Tacoma, 1917D, P. U. R. 891. (3) If the Legislature had the power and authority as held by the Commission to act for cities in abrogating and cancelling contracts entered into by the city, it has'not the power to delegate such authority to some other body or to the Public Service Commission, but must exercise its legislative power vested in it by Section l of Article 4 of the Missouri Constitution. Lammert v. Lidwell, 62 Mo. 190. (4) The Commission having found that the contract entered into by the City Water Company for furnishing fire hydrants was a valid contract, and it having been entered into, as the Commission held, with the full sanction of the Legislature as clearly expressed in Sec. 9239, R. S. 1909, then, until the Legislature has in some way clearly expressed an intention to either abrogate and take from the city the benefits of that contract, or to vest in some other body the power to abrogate and take from the city the benefits of the contract, it must stand, and in the law creating the Public Service Commission there was no such intention shown by the Legislature, but the contrary intention was clearly shown. Paragraph 5, sec. 69, Public Service Commission Act, Laws 1913, p. 605; Anderson v. Cortelyou, 68 Átl. 120. (5) The decision and order of the Commission directly violates the Federal and State Constitutions in that it impairs obligations of contracts and takes from the city its property without due process of law. ' Mo. Constitution, sec. 15, art. 2; U. S. Constitution, sec. 10, art. 1, and Fourteenth Amendment.

      Alex. Z. Patterson and James D. Lindsay for respondent.
    (1) The city of Sedalia and the water company in the making of the so-called franchise contract, were bound by cognizance of the fact that their dealings were subject to future exercise of the Legislature’s power over rates of public utility companies. Hence, the franchise contract was made subject to the Legislature’s making use of the State’s inherent power, reserved and not exclusively delegated to the city, to supervise all public service charges. And when the Legislature in its wisdom saw fit to exercise its reserved power of supervision over the matter of public service rates hy the creation of a Public Service Commission, and the delegation of rate-making to such Commission, the rates mentioned in the franchise became subject to regulation hy such Commission. Puget Sound T. L. & P. Co. v. Public Service' Commission, 244 U. S. 574; Milwaukee Elec. Ry. v. Wisconsin Railroad Co., 238 U. S. 174; Worcester, v. Street Ry. Co., 196 U. S. 539; New Orleans v. New Orleans Water Works Co., 142 U. S. 79; Home Tel. Co. v. Los Angeles, 211 U. S. 265; Home Tel. & Tel. Co. v. Los Angeles, 155 Fed. 554 (U. S. C. C. A.); Portland Ry. L. & P. Co. y. City of Portland, 210 Fed. 667; People ex. rel. N. .Y. & N. S. T. Co. v. Public Service Commission, 162 N. Y. Supp. (App. Div.) 405, P. U. R. 1917 B. 957; People ex rel. Bridge Pp. Co. v. Public Service Commission, 138 N. Y. Supp. 434, 153 App. Div. 129; Chicago v. O’Connell, 278 111. 591, P. U. R. 1917 E. 730; Collingsworth Sewerage Co. v. Borough of Collingsworth 102 Atl. (N. J.) 901; Inhabitants Town of Phillipsburg v. Board of Publ. Utilities Com’rs., 88 Atl. (N. J.) 1096; Dawson.v. Dawson Tel. Co., 137 Ga. 62; City of Wood-burn v. Pub. Serv. Comm. 161 Pac. (Ore.) 391; State v. Superior Ct. of King Co., 120 Pac. 861, 67 Wash. 37, L. R. A. 1915 C. 287; City of Pawhuska v. Pawhuska, 166 Pac. (Okla.) 1058; Pioneer Tel. & Tel. Co. v. State, 33 Okla. 724, 127 Pac. 1073; Duluth St. Ry. Co. v. Railroad Com., 152 N. W. (Wis.) 887; Milwaukee Elect. Ry. & Lt. Co. v. Railroad Com.-, 142 N. W. 491, 153 Wis. 592; Manitowoc v. Manitowoc & W. Traction Co., 145 Wis. 13, 129 N. W. 925; City of Benwood v. Public Service Comm., 83 S. E. (W. Va.) 295, L. R. A. 1915 C. 261; Turtle Creek v. Pennsylvania Water Co., 243 Pa. 415; Bellevue v. Ohio Valley Water Co., 247 Pa. 91; Yeatman v. Towers, 126 Md. 513.
   GRAVES, J.

Stripped of all useless verbiage this case involves but one question. By ordinance of the city of Sedalia, duly accepted by the predecessor of the City Water Company of Sedalia, Missouri, it was provided that the rent on city hydrants should be thirty dollars per annum, and certain other water service to the city should be free of charge. This was what is usually called the franchise ordinance. It was never submitted to the vote of the people, but for the question here involved we deem this immaterial. The passage of the ordinance by the City Counsel, and the acceptance thereof by the predecessor of the said City Water Company, constituted a contract between the city and the water company.

Prom the record here it can be gathered that citizens of the said city complained of the water service, and their complaint was heard by the Public Service Commission, which resulted in the said Public Service Commission requiring the City Water Company to expend something near $100,000 for appropriate water reservoirs and other improvements. Thereafter the City Water Company applied to the Public Service Commission for increased rates for their service, both to the city and the general public. This required an investigation as to the valuation of the plant and other matters to be considered upon the question of increasing the rates. The relator here was permitted to intervene in these proceedings, which were consolidated as one. The relator planted its right upon the contract provided for in the ordinance, supra. Other trivial questions were raised, but to our mind they do not merit notice.

The Public Service Commission heard evidence as to the value of the water plant and other subjects proper to be considered upon the question of water rates. The city was a party throughout these hearings. The result was a general raising of rates, and especially a raising of hydrant rentals (which were to be paid by the city) from $30 per annum to $45 per annum. The ordinance aforesaid was in evidence upon this hearing. Not being satisfied with the rates fixed by the Public Service- Commission, the city, by statutory certiorari, took the matter to the circuit court of Cole County, where the reasonableness of the rates fixed by the Public Service Commission1 was approved by that court, and from such judgment of approval and affirmance this appeal has been taken.

Under the facts of the record the reasonableness of the rates fixed by the Public Service Commission cannot be seriously questioned. This leaves the single question as to whether or not the Public Service Commission had the lawful right to fix a rate, so far as the city is cóncerned, in excess of the ordinance rate. Such is the case when cleared of all driftwood.

I. The question in this case is one in a number of cases, either here or headed this way. The importance of the question bespeaks care and also requires us an invC)iee as’to where we are under the Public Service Commission Act. We have adopted the idea of viewing this act in a kindly spirit by giving it a liberal construction. In State ex inf. v. Kansas City Cas Co., 254 Mo. 1. c. 535, we said:-

“The act, then, is a highly remedial one filling a manifest want, is worthy a hopeful future, and on well-settled legal principles is to be liberally construed to further its life and’ purpose by advancing the benefits in view and retarding the mischiefs struck at — all pro bono publico. Besides all which, the lawmaker himself has prescribed it ‘shall be liberally construed with a view to the public welfare, efficient facilities and substantial justice between patrons and public utilities.’ [Sec. 127.]”

See also State ex rel. v. Public Service Commission, 259 Mo. 1. c. 713.

Not only so, but we have traced the, Public Service Commission Act to the police power of the State. In the Gas Company case, supra, 254 Mo. 1. c. 534, in speaking of this law, we said:

“That act is an elaborate law bottomed on the police power. It evidences a public policy hammered out on the anvil of public discussion. It apparently recognizes certain generally accepted economic principles and conditions, to-wit, that a public utility (like gas, water, car service, etc.)- is in its nature a monopoly; that competition is inadequate to protect the public, and, if it exists, is likely to become an economic waste; that State regulation takes the place of and stands for competition; 'that such regulation, to command respect from patron or utility owner, must be in the name of the overlord, the State, and to be effective must possess the power of intelligent visitation and the plenary supervision of every business feature to be finally (however invisibly) reflected in rates and quality of service. It recognizes that every expenditure, every dereliction, every share of stock or bond or note issued as surety is finally reflected in rates and quality of service to the public, as does the moisture which arises in the atmosphere finally descend in rain upon the just and unjust willy nilly.”

To like effect is State ex rel. v. Public Service Commission, 259 Mo. 1. c. 712, whereat it is said:

“The statute involved is new. Referable to the police power, it evidences a departure (or at least an advanced thought) in public policy in dealing with common carriers and public utilities in Missouri. It touches at ' so many vital points so many vital and open questions; it is such a brave and deserving attempt to provide a speedy and sensible scheme for settling controversies so prevalent, so obstinate, so old, so raw- and inflamed between public utility companies and their patrons (to-wit, the public) that wisdom demands its judicial construction proceed with discriminating caution. It is so vast and intricate that it cannot be construed all at once and all doubts dispelled slapdash in a lump as science now kills mosquitoes. The better course is to build up a construction by evolution, ■ step by step, and, to that end, decide nothing except what is precisely necessary to a determination of vital questions raised in each concrete case. Peradventure by that safe and conservative course important phases of the statute will in an orderly way and in due time be digested and so assimilated by sound interpretation that all its remedies will eventually be advanced and all mischiefs within its purview be retarded. ’ ’

We have further recognized that the Legislature can delegate to the Public Service Commission the power to áscertain and fix reasonable rates for services rendered to the public by the divers public service C0rp0ra^[0ng_ [State v. Public Service Commission, 194 S. W. 1. c. 291.] In this case Paris, J., has aptly said:

“It is also settled beyond doubt or cavil that this power of prescribing maximum rates for common carriers, which, as we have seen, legislatures possess pursuant to an untrammeled grant of the power to pass laws, may be delegated,to a railroad commission or to a public service commission. To this rule, unless inhibited by express constitutional provision, there is not a reputable exception.”

Other Missouri eases might be cited, but these suffice for the thought now in mind. First, it is made clear by these eases that the ascertaining and establishing of reasonable rates for public service is one falling within the police power of the State. Let us stick a peg here, because this becomes important later. Second, it is likewise made clear that the fixing of reasonable rates may be delegated by the Legislature to the Public Service Commission, subject, of course, to a court review upon the question of reasonableness.

. With these two' questions made clear and conclusive by our own. rulings we will take up later the real question of the instant case. In its discussion there should be kept constantly in mind, the two questions, supra: (1) that the fixing of reásonable rates for public service is traceable to the police power of the State, and (2) that within proper bounds and limitations' the fixing of such reasonable rates can be committed to a body, such as our Public Service Commission.

II. It is claimed by relator that under the last proviso of Section 9239, Revised Statutes 1909, the city was authorized to contract for water service to the city without having such contract submitted to a vote of the people. This we think is true. Such is the statutory provision. Tlie question really is to what extent such contract is effected by a subsequent law by and through which the Legislature asserts the sovereign power of the State relative to regulating rates for public service.

In reality the question is deeper than suggested above. Going to our Constitution, the real question is, can the Legislature authorize a municipal corporation or a public service corporation to make a contract as to rates which contract will preclude the sovereign power of the State from fixing reasonable rates irrespective of the contract? We use both the terms “municipal corporation” and “public service corporation” purposely, because they are usually the opposing parties to the contract. In the instant case the municipal corporation is the party to the contract upon one side, and a public service corporation is the party upon the other side. The two corporations are the two parties which stood at arms-leng'th in the making of the contract here involved. So that we are forced to answer the question, “Can the State of Missouri divest itself of the right to exercise its police power?” This court has held, and we think rightfully so, that the fixing of reasonable rates for service to be rendered to the general public (which general public includes municipal corporations, as well as the citizens thereof) is an exercise of- the sovereign police power of the State. Section 5, Article 12, of the Missouri Constitution reads: “The exercise of the police power of the State shall never be abridged, or so1 construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals, or the general well-being of the State.”

Note the language, “the exercise of the police power of the State shall never he abridged.” Under such a constitutional restriction the Legislature would be powerless to enact a valid law by the terms of which the right of the State in the exercise of its sovereign police power in the fixing of reasonable rates for public1 services could be limited or abridged. This court so. held in Tranbarger v. Railroad, 250 Mo. 1. c. 55, whereat Bond, J., said:

‘.‘ (2) All powers of government which regulate the public health, welfare and the property rights of its people — these, no State can strip itself of, for that would render it incapable of carrying out the prime purposes of its creation. The sanctity and import of this attribute of sovereignty are recognized in the Constitution of this State, to-wit: ‘The exercise of the police power of the State shall never Be abridged., or. so construed as to permit corporations to conduct their business in such manner as. to infringe the equal rights of individuals, or the general well-being of the State.’ [Art. 12, sec. 5, Constitution of ■ Missouri.] The only restrictions upon the exercise of this faculty are that its use shall be reasonably adapted to the ends for which it is given, and that it shall not infringe any right or privilege guaranteed by the Federal Constitution. The authorities and cases demonstrating these principles are uniform. ’ ’

Some of us thought the pronouncement a little broad and dissented, but the' case was taken to the United States Supreme Court and there affirmed. [Chicago & Alton Railroad Co. v. Tranbarger, 238 U. S. 67.]

The United States Supreme Court was even more explicit in this Tranbarger case than was the majority opinion in this court. To its rule we must bow. At page 76 of 238 U. S., in this Tranbarger case, it is said:

“It is established by repeated decisions of this court that neither of these provisions of the Federal Constitution has the effect of overriding the power of the State to establish all regulations reasonably necessary to secure the health, safety, or general welfare of the community; that this power can neither be abdicated or bargained away, and is inalienable even by express grant;- and that all contract and property rights are held subject to its fair exercise. [Atlantic Coast Line v. Goldsboro, 232 U. S. 548, 558, and cases cited.] And it is also settled that the police power embraces, regulations designed to promote the public convenience or the general welfare and prosperity as well as those in the interest of the public health, morals or safety. [Lake Shore & Mich. Southern Ry. v. Ohio, 173 U. S. 285, 292; C. B. & Q. Ry. v. Drainage Commissioners, 200 U. S., 561, 592; Bacon v. Walker, 204 U. S. 311, 317.]”

The italics in the above quotation are ours. It was under similar definitions of ‘‘Police Power” that this court held that the fixing of reasonable rates for public service is the exercise of the sovereign police power of the State. Such power cannot be contracted away, nor can the Legislature of the State authorize a municipal corporation to contract away this police power of the State. It is clear that the Legislature cannot confer more power upon one of its creatures, (a municipal corporation) than it possesses itself. The Legislature is prohibited by the Constitution from abridging the police power of the State, and it cannot legally authorize any creature of the Legislature to abridge this sovereign power. So that we care not what the literal meaning of Section 9239, Revised Statutes 1909, may be. If it be construed so as to abridge or limit the exercise of the sovereign police power of the State, the Legislature overstepped constitutional limitations in enacting it. If it be construed as simply authorizing a contract until such time as the State saw fit to- assert its police power, as it did in the Public Service Commission Act, then it would be at least harmless in the instant case.

It is, however, clear that under our Section 5 of Article 12 of the Constitution of 1875 (a section not theretofore found in our Constitution) the Legislature itself cannot abridge the police power of the State. Nor can it authorize a municipal corporation to make a contract abridging or limiting such police power. So that if, as we have held, the fixing of rates for public service is an exercise of the police powér, then under other rulings cited above the Public Service Commission had a right to fix reasonable rates irrespective of the alleged contract. The great weight of authority so holds. Cases from a great number of states will be found in the briefs for the Public Service Commission. These discuss the question from different angles, but reach the same conclusion. We have preferred to rest the ruling .in this case upon what this court has previously ruled, which rulings have been in the light of our own peculiar constitutional provision. Under it the sovereign police power of the State is preserved intact, irrespective of contracts with reference to rates for public service. Under it no contract as to rates will stand as against the order of the Public Service Commission for reasonable rates, whether such reasonable rates be lowqr or higher than the contract rate. Under the Constitution and the Public Service Commission Act the Public Service Commission (supervised by the courts as to the reasonableness of rates) is exercising the police power of the State by its delegated authority from the Legislature. Its rates therefore constitutionally and legally supersede any and all contract rates. Other theories of case law need not be noted.

Let the judgment nisi be affirmed. It is so ordered.All concur.