author: WILLIAMS, J.

text:
    CITY OF ST. LOUIS, Trustee Under Will of BRYAN MULLANPHY, v. FRANK W. McALLISTER, Attorney-General, and CHAMBERS SMITH et al., Interveners, Appellants.
    In Banc,
    January 26, 1920.
    1. TRUST FUND: Failure of Objects: Cy Pres Doctrine. Whether or not there has been a failure or a partial failure of the definite charitable objects for which a trust fund was created is a question of fact to be determined by .evidence; and unless the evidence shows with reasonable certainty that there will be a permanent failure of at least a substantial portion of the objects of the trust, the question of further administration and disposition of the fund does not arise, nor can questions of what might be done with the fund were there a failure of the charitable objects be considered.

      2. -: Reinvestment. The power of a court of equity to authorize the alienation of property belonging to a charitable trust should be exercised with caution, and should not be exercised at all unless it clearly appears that the proposed alienation would he for the benefit of the charity. So that where the trust fund consists of many tracts of real estate, and the estimates of the price at which it could be sold are one-half its value, and there is no evidence that if sold and the proceeds invested in -Government or State bonds the income would amount to as large a net return as is now realized, a decree ordering all 'the real estate sold and the proceeds invested in bonds should not be rendered.
    Appeal from St. Louis City Circuit Court. — Hon. Thomas G. Hennings, Judge.

    Reversed and remanded (with directions).

      Frank W. McAllister, Attorney-General,' and 8. E. Skelley, Assistant Attorney-General, for appellant.
    (1) The judgment and decree of the court is against the evidence and weight of the evidence. (2) The court erred in its fourth finding of fact that expenditures out of proportion to benefits conferred have been and are necessary because of the poor location and dilapidated condition of the real estate- belonging to the fund. (3) The total net income of the trust estate can be applied for the specific purposes designated by the testator. (4) The case made by plaintiff does not sustain the judgment and decree of the court, diverting a portion of the income of the trust estate ey pres, (a) The cy pres doctrine is one of judicial construction, invoked in order to effectuate the paramount purpose of the founder. 11 C. J. 360; 2 Perry on Trusts and Trustees (6 Ed.), sec. 728; Mo. Historical Society v. Academy of Science, 94 Mo. 467; Crow ex rel. v. Clay County, 196 Mo. 279; Catron v. Scarritt, 264 Mo. 713. (b) The cy pres doctrine is a rule of limitation and in applying same, the -court, in the exercise of its equity powers and jurisdiction, can give effect only to the express charitable purposes and intent of the donor, as disclosed by the instrument presented for construction. Crow ex rel. v. Clay County, 196 Mo. 272, 278; Jackson v. Phillips, 14 Allen (Mass.) 591. (c) It is a prerequisite to the application of the doctrine that the court discover a general charitable intent. 11 C: J. 361; Quimby v. Quimby, 175 111., App. .372; Allen v.. Trustees Nasson’s Institute,. 107 Me. 120; Bragg v. Litchfield, 212 Mass. 148; Teele v. Bishop of Derby, 168 Mass. 341; Richardson v. Mullery, 200 Mass1. 545; Mason v. Library Assn., 237 111. 442; Nichols v. Newark Hospital, 77 N. J. Eq. 130'. (d) A court of equity may vary the details of administration to effectuate the paramount purpose of the founder, but will not alter the charity it'self, or substitute another for it. Lackland v. Walker, Í51 Mo. 248; Crow ex rel. v. Clay County, 196 Mo. 279; Hadley v. F'orsee, 203 Mo. 428; Catron v. Scarritt, 264 Mo. 729. (e) The decree of the court that the income from the trust fund, beyond what may be necessary to properly provide for the persons designated by the testator, shall be used for the purpose of furnishing relief, information, advice and assistance, to worthy emigrants and travelers, generally, in the City of St. Louis, in need and distress, preference at all,times to be given to men with families, and women and children coming within the designation aforesaid, alters the scheme of the charity of the founder; in effect established a new charity and exceeds the jurisdiction and power of the court. Crow ex rel. v. Clay County, 196 Mo. 279; Jackson v. Phillips, 14 Allen (Mass.) 591. (f) There can be no application of the American doctrine of the cy pres until there has been an entire failure of the object of the charity according to the original interpretation of the intention of the founder, or until it appears impossible to carry out the scheme according! to its terms. Crow ex rel. v. Clay County, 196 Mo. 264; Winthrop v. Attorney-General, 128 Mass. 258; Greene v. Blackwell, 35 A.tl. (N. J.) 375; Philpott v. St. George’s Hospital, 27 Beav.T27. Whether the intention of the founder as originally construed has failed is a question of fact. Women’s Christian Assn. v. Kansas City, 147 Mo. 127. The evidence in this case is insufficient to sustain the fitnding of the court that the object of the charity has failed by reason of a cessation of emigration. (5) The decree of the court that the parcels of land described in relator’s petition be sold and the proceeds be reinvested in bonds is contrary to the evidence, uncalled for, and unjustified under any view of the situation at this time and opposed to the best interests of.the trust estate, (a) Whether inherent or statutory, the power of the court to alienate the lands of a charitable trust is properly exercised only when changed conditions and circumstances make such alteration essential to the beneficial administration of the charity. 11 C. J. 353 ; 5 E. C. L, 363; Smith v. Smith, 118 3ST. C. 735; Johnson v. Buch, 220 111. 2i2i6.; Grace Church v. Ange, 161 N. C. 314;-Jones v. Habersham, 107' U. S. 183; Lackland v. Walker 151 Mo. 2!69. (b) No principle obtains justifying the sale of lands dedicated to a charitable use at the mere discretion of the court or upon.the sole ground that it appears tó be advantageous to the estate. Lackland v. Walker, 151 Mo. 268 : Crow ex rel. v. Clay County, 196 Mo. 265 ; Wtamen’s Christian Assn. v. Campbell, 147 Mo. 122. (c) The evidence in this case does not show such change of conditions and circumstances as to render a sale of the lands belonging; to the trust estate essential to the beneficial adminstration of the charity. Women’s Christian Assn. v. Campbell, 147 Mo. 103; Lackland v. Walker, 151 Mo. 210. (6) Lands or other property once having vested in a trustee for charitable purposes cannot be reclaimed by the donor or his heirs, (a) The rule is settled and thoroughly established that where lands have been donated and become vested in a trustee for charitable uses, neither the donor, nor his heirs can ever reclaim them. 11 C. J. 371; Acad, of the Visitation v. Clemens, 50 Mo. 171; Women’s Christian Assn. v. Kansas City, 147 Mo. 126; Lackland v. Walker, 151 Mo. 242; Crow ex rel. v. Clay County, 196 Mo. 261; Mount v. Morris, 249 Mo. 147; Sandusky v. Sandusky, 265 Mo. 234; Jackson v. Phillips, 14 Allen (Mass.) 647. (b) Where the particular object of the charitable bequest is in existence at the testator’s death, but ceases to- exist at a subsequent time tbe legacy does not lapse, but the fund having once vested in the charity may be applied cy pres by the court. 11 C. J. 363; Mason v. Lbr. Assn., 237 111. 442; Hubbard v. Worcester Art. Museum, 194 Massi 280; Nichols v. Newark Hospital, 71 N. J. Eq. 130. (c) When an estate is devoted to a charitable purpose and the income of the estate subsequently increases, so that it is in excess of the requirements of the charity, there will be no resulting trust in favor of the heirs-at-law of the donor, but the entire revenue will be devoted to the object of the charity. Beach on Trusts and Trustees, sec. 329. ,

      Morton Jourdan and Lee W. Hagerman for appellant-interveners.
    (1) The court erred in the first clause of its judgment and decree in finding that the interveners had no right, title or interest in any of the property, real, personal or mixed, which Bryan Mullanphy gave to the City of St. Louis in trust. (2) Where there is a failure or partial failure of the purposes, uses and objects of the trust so that the trust cannot be carried out, and the performance of it according to the terms of the declaration of trust is impossible, a resulting and constructive trust in favor of the heirs will be decreed. James v. Allen, 3 Mer. 17; Ommaney v. Butcher, T. & R. 260; Fowler v. G'arlike, 1 Russ. & M. 232; Williams v. Kershaw, 5 Cl. & F. Ill; Harris v. Du Pasquier, 26 L. T. Rep. 280'; Leavers v. Clayton, 8 Ch. D. 589; Adye v. Smith, 44 Conn. 60; Chamberlain v. Stearns, 111 Mass. 267; Nichols v. Allen, 130 Mass. 211; Carrick v. Errington, 2 Pere Williams, 361; Collins v. Wakeman, 21 Yes. Jr. 688; Fitch v. Weber, 6 Hare, 145; Flint v. Warren, 16 Sim. 124; Atty-Gen. v. Dean, 24 Beav. 679, 8 H. L. 369; Roper v. Radcliif, 9 Mod. 171; Hopkins v. Hopkins, 1 Atk. 581, 597; Arnold v. Chapman, 1 Yes. 108; Page v. Leapingwell, 18 Yes. 463; Tregonwell v. Sydenham, 3 Dow. 194; Jones v. Mitchell, 1 S. & S. 290; Pilkington v. Boughey, 12 Sims. 114; Turner v. Russell, 10 Hare, 204; Morris1 v. Owen, W. N. (1875),' 134; Iluchaby v. Jones, 2 Hawks, 120'; Stevens v. Ely, 1 Dev. Eq. 493; Sorrey v. Bright, 1 Dev. & B. Eq. 113; Thompson v. Newlin, 3 Ired. Eq. 338; Lemmond v. Peoples, 6 Ired. Eq. 137. (3) The law of private trusts is that where there is a surplus, residue or balance, over and above the amount necessary to satisfy the purposes, uses and objects of the trust, a resulting and constructive trust will hie decreed in favor of the heirs or next of kin. Elleoek v. Mapp (England, 1851), 3 House of Lords Oases, 492; Cooke v. Guavas, 9 Mod. 187; Culpepper v. Aston, 2 Ch. Ca. 115; Levet v. Needham, 2 Vem. 138 ; Randall v. Bookey, 2 Vern. 425; City of London v. Garway, 2 Vern. 571; Countess of Bristol v. Hungerford, 2 Vern. 6145; Starkey v. Brooks, 1 P.- "Wims. 390; Kiricke v. Branshey,2 Eq. Ab. 508, pi. 5; Robinson v. Taylor, 1 Ves. Jr. 44, 2 Bro. O. C. 588; Dean v. Dalton, 2' Bro. C. C. 634; Habergham v. Vincent, 2 Ves. Jr. 204: Hallidav v. Hudson, 3 Ves. Jr. 210; "White v. Evans, 4 Ves. 21; Mordaunt v. Hussey, 4 Ves. 117(; Sevel v. "Wood, 10 Ves. 75 ; Nash v. Smith, 17 Ves. 29; Landham v. Sanford, 17 Ves. 442, 19 Ves. 643; Southouse v. Bate, 2 V. & B. 306.; Kellett v. Kellett, 3 Dow. 248; Girard v. Hanbury, 3 Mer. 150; Wollett v. Harris, 5 Mad. 452; Rhodes v. Rudge, 1 Sim. 79; Braddon v. Farrand, 4 Russ. 87; Harris v. Harris, 2 Keen, 646; Muller v. Bowman, 1 Coll. 197; Andrew v. Andrew, 1 Coll. 686; Love v. Gaze, 8 Beav, 472; Meryon v. Collett, 8 Beav. 386; Sanderson’s Trust, 3 K. & J. 497; Saltmarch v. Barrett, 3 De G., F. & J. 279, 29 Beav. 474; Barrs v. Fewkes, 2 Hem. & M. 60; Hall v. "Waterhouse, W. N. (1867) 11; Bird. v. Harris, L. R. 9 Eq. 204; Selter v. Cavanaugh, 1 Dr. & Walsh, 668; Neale v. Hagthrop, 3 Bland, 561; Skellinger v. Skellinger, 3 N. J. L. J. 179. (4); In cases of charitable trusts, when the cy pres doctrine is not applicable, where there is a failure or partial failure of the purposes, uses and objects of a charitable trust, or, where there is a. surplus, residuum or balance over and above the amount necessary to satisfy and execute the purposes, uses and objects of a charitable trust, a resulting and constructive trust will be decreed in favor of the heirs or next of kin or the representative of the donor. Morris v. Bishop of Durham, 9 Vesey, 399, 10 Yesey, 521; Owens v. Missionary Society, 14 N. Y. 380; Downing v. Marshall, 23 N. Y. 366; Levy v. Levy, 33 N. Y. 97; Bascom v. Albertson, 34 N. Y. 584; Adams v. Perry, 43 N. Y. 487; White v. Howard, 46 N. Y. 144; Holmes v. Mead, 52 N. Y. 322; Prichard v. Thompson, 95 N. Y. 76; Cottmar v. Grace, 112 N. Y. 299; Read v. Williams, 125' N. Y. 560; Fosdick v. Hempstead, 125 N. Y. 581; Tilden v. G-reen, 28 N. E. 880; Walsh v. Secretary of State for India, 10 H. L. Cas. 367 (England 1863).; Marsh v. Means, 3 Jur. N. S, 790 (Eng. 1857); Longford v. Gowland, 3 Clifford, 617 (Eng. 1862); Broadbent v. Barrow, 29 Ch. Dis. 560 (Eng. 1853); Chapman v. Brown, 6 Vesey, 404 (Eng. 1801); Yates v. University College, L.. R. 7 H. L. 438; Hopkins v. Ellis, 10 Beav. 169; Atty.-Gen. v. Lord Weymouth, Ambler 19 (Eng. 1743). Henshman v. Atty.Gen., 3 My. & K. 493 (Eng. 1836); West v. Shuttle-worth, 2 Myln & Keen, 684;- Attorney-General v. Pyle, 1 Atkins, 435; Adams on Equity (5' Am. Ed.) see, 71; Story on Eq. Jurispr. (11 Ed.), sec. 1182, p. 489; Maught v. Getzendamer, 65 Md. 332; Salyor v. Plaine, 31 Md. 1.58; Nichols-v. Allen, 130 Mass. 211; Fifield v. Van IVyck, 91 Ya. 557; Columbian University v. Taylor, 25 App. I). C. 124; Adage v. Sdiith, 44 Conn. 60; Hopkins v. Grimshaw, 165 U. S. 342; Miller v. Riddle, 227 111. 53;, People v. Braucher, 258 111. 604; Brooks v. Belfast, 90 Me. 318; Quinby v. Quinby, 175 111. App. 367; Stratton v. Medical College, 149 Mass. 505; Bullard v. Sheriey, 12 L. R. A. 110; Easterbrook v. Tilliughast, 3 Gray (Mass.) 17; Pringle v. Dorsey, 3 S. C. 502; Grundy v. Neal, 147 Ky. 729; Cone v. Wold, 85 Minn. 302.

      Charles H. Danes & E. Paul Griffin for respondent.
    (1) The charitable trust created by the will of Bryan Mullanphy was a valid one'with a competent trustee and beneficiaries who were in existence at the time of his death, and the trust actually vested in the trustee for the benefit of the beneficiaries indicated in the will after the death of Bryan Mullanphy. Chambers v. City of St. Louis, 29 Mo. 543; Robinson et al. v. Crutcher, 209 S. W. 104. (2) The collateral heirs at law of Bryan Mullanphy have nó right, title or interest in said fund. The rule is well settled in this State that where lands have been donated and become vested in a trustee for charitable uses, neither the donor nor his heirs can ever reclaim them. 11C. J. 371; Acad, of the Visitation v. Clemlens, 50 Mo. 167, 171; Women’s Christian Assn. v. Kansas City, 147 Mo. 126; Lackland v. Walker, 151 Mo. 242; Crow ex rel. v. Clay County, 196 Mo. 261; Mount v. Morris, 2491 Mo. 147; Sandusky v. Sandusky, 265 Mo. 284; Jackson v. Phillips, 14 Allen (Mass.) 647; Hand v. St. Louis, 158 Mo. 204. Where the particular object of the charitable bequest is in existence at the testator’s death, but ceases to exist at a subsequent time, the legacy does not lapse, but the fund having once vested in the charity may be applied cy pres by the court. 11 C. J: 363; Mason v. Bloomington Lbr. Assn., 237 111. 442'; Hubbard v. Worcester Art Museum, 194 Mass. 280; Nichols v. Newark Hospital, 71 N. J. Eq. 130!. (3) The cypres doctrine is universally recognized in Missouri. The Supreme Court of this State has many times so¡ declared. The plan which the circuit court decreed of broadening and enlarging the charity of Bryan Mullanphy in this case was a proper one under the evidence. Chambers v. City of St. Lbuis, 29 Mo. 543; Academy of the Visitation v. Clemens, 50 Mo. 167; Groode v. McPherson, 51 Mo. 126; Howe v. Wilson, 91 Mo. 45; Missouri Historical Society v. Academy of Science, 94 Mo. 459; Powell v. Hatch, 100 Mo. 592; Barkley v. Donnelly, 112 Mo. 561; Sappington v. School Fund Trustees, 123 Mo. 32; Lackland v. Walker, 151 Mo. 210; Crow ex rel. v. Clay County, 196 M'o. 234; Mott v. Morris, 249 Mo. 137; Catron v. Scarritt Collegiate Institute, 264 Mo. 713; Hand v. St. Louis, 158 Mo. 204. The cy pres doctrine is recognized in other States' and by the Supreme Court of the United States. Jackson v. Phillips, 14 Allen, 571; American Academy of Science v. Harvard College, 12 Gray, 582; Russell v. Allen, 107 U. S. 163; Church of Latter Day Saints v. United States, 136 U. S. 1, 140 U. S. 06!5-; Bisphám’s Prin, of Eq. (9 Ed.) secs. 128-130, pp. 221-226; Camp v. Presbyterian Society, 173' N. T. S. 581; Minot v. Baker, 147 Mass. 348. The cy pres doctrine has always existed and has always been recognized in England. Moggridge v. Trackwell, 7 Yesey, 36; Bispham’s Principles of iEquity (9 Ed.), sec. 128, p. 221; 5 Am. & Eng. Ency. Law (2 Ed.), p. 937; Pome: roy Eq. Jur. 1523, sec. 1027; Ommanney v. Butcher, Turn. & Russ. 270; Attorney-General v. Hicks, 3 Brown C. C. 166; Attorney-General v. Ironmongers, 2 Beav. 313. (4) It was eminently proper for the court, under the evidence, to decree the sale of the real estate and provide for the investment of the proceeds in bonds. Lackland v. Walker, 151 Mío. 210.
   WILLIAMS, J.

— This is a suit in equity originally instituted in December, 1916, in the Circuit Court of the City of St. Louis.

This suit was instituted by the City of St. Louis, trustee under the will of Bryan Mullanphy, deceased, as plaintiff, against the Attorney-General of Missouri (as the representative of the general public in matters appertaining to the administration, of public charities) as defendant.

The purpose of the suit, as disclosed by the pleadings, was to have a court of equity apply the cy pres doctrine to the administration of the. trust fund provided by said will and to have the court authorize a sale of all the real estate belonging to said trust fund and that the proceeds from such sales be re-invested in high class securities.

After the suit was instituted certain collateral kindred of the testator, by leave of court, filed a petition as interveners. This petition in substance states that the objects for which the charity was originally created have failed, and prayed that the court decree a resulting or constructive trust in- said property in favor of the heirs of said testator.

Trial in the circuit court resulted in a decree in favor of the plaintiff and thereupon the defendant and the interveners duly perfected an appeal.

The will by which the trust fund in question was originally created was as follows:

‘"‘I, Bryan Mullanphy, do mate and declare the following to be my last will and testament.

‘ ‘ One equal undivided third of all my property, real personal and mixed, I leave to the City of St. Louis in the State of Missouri, in trust to be and constitute a fund to furnish relief to all poor emigrants and travelers coming to St. Louis, on their way bona fide to settle in the West. I do appoint Felix Coste and Peter Gr. Camden Executors of this my last will and testament, and of any other will or executory devise that I may leave. All and any such document 'will be found to be olograph, - all in my own handwriting. In testimony whereof witness my hand and seal.

“Bryan Mut.lanphv (Seal)

“Witnesses who have all signed in the presence of the testator and each other, and saw the testator sign in the presence of them and each of them.

“AbOLPHTJS WlSTIZENTTS,

“John Wolee,

“W. M. Warne,

“C. Ahsust Schabel.”

Some of the witnesses estimate the present value of said trust estate to be about one million dollars.

We have read the large record in this case and find that a fair summary of the facts is found in the statement made in the brief of the learned Attorne'.y-General. In fact, the statement of facts made by respondent is practically the -same as that made by the defendant.

From'the statement of facts contained in the brief filed by the Attorney-General, as appellant, we quote as follows: -

- “The plaintiff introduced in substance and briefly stated the following evidence, material to the issues involved :

“By the will of Bryan Mullanphy, a wealthy and eccentric bachelor living in St’. Louis, executed in 1849 and duly probated in 1851 in the Probate Court of the City of St. Louis, real estate to the value of approximately $500,000; consisting of about ninety parcels, was left tfa the City of St. Louis, as trustee ‘to be and constitute a fund to furnish relief to all poor emigrants and travelers coming to St. Louis on their way bona fide to settle in the "Wiest.”

“Collateral heirs of the testator immediately brought suit in partition, claiming the above devise void and asserting title to the entire property. The Circuit Court of the City of St. Louis found against the heirs, held the devise valid, and its judgment was affirmed by the Supreme Court in 18601. Chambers et al. v. City of St. Louis, 29 Mo. 543. The General Assembly by an act approved March 12, 1859, Laws 1859, p. 280, empowered the City of St. Louis to take, as trustee, devises and bequests for charitable purposes.

“The city in-1860 began the administration of the fund, and by charter provisions and ordinance authorized the city to accept the trust and provide a scheme and plan for its administration. Changes in the details of the plan of administration were made in 1876. Article I, Charter of City of St. Louis, 1876; Ordinance No. 10316; also Clause 10, Sec. I, Art. I, and Sec. I, Art. 14, Charter of City of St. Louis, adopted June 30, 1914; Ordinance No. 27808; Ordinance No. 28840.

“The property pas,sing to the City of St. Louis, trustee, under the Mullanphy will consisted of real estate located in the City of St. Louis, in the county adjoining, and a few parcels in other parts of the State of Missouri. About sixty or seventy-five per cent of said property is improved. The greater portion of the improvements on said property was in poor and dilapidated condition.

“A large portion of the income of said property has been applied from year to year in making additions to and repairing improvements, and in building a ‘model tenement’ in the nature of an apartment house. Large sums have always been necessary for the item of repairs. Within the last five years more than $150,000 have been spent in alterations and repairs, with the result that, • with the exception of perhaps one or two parcels, all are in excellent condition. The tenement property is in that portion of the city known as the ‘Ghetto,’ which is inhabited by poor people. The vacant city property and the farm lands have never’ produced even a reasonable return on the value thereof. The farm lands are largely unimproved and cannot be rented to advantage. The gross annual income from said property is approximately $4-2,000.

“By provisions of the charter and ordinances of the City of St. Louis, the fund was originally administered by a board of thirteen members, appointed by the mayor under a ward plan. In 1915 the board of managers was reduced to three members, who are appointed by the mayor and constitute what is known as ‘The Board of Commissioners of the Mullanphy Emigrant and Travelers ’ Relief Fund.’ The present board maintains a permanent office at 307 Locust Street in the City of St. Louis, and meets regularly on Monday. The present members of the board are Theo A. Morrey, Pres., Wm. Riley, Vice-Pres., and J. Russack.

“Walter Ermatinger, who has been for'nine years employed by the board as assistant secretary and secretary, testified that the records in'the office of the board were more or less complete from the foundation of the fund; that during certain periods, practically no records were made or preserved. In 1874 a committee was appointed by the mayor, at the request of the then board of managers of the fund, to investigate and report to the Board of Aldermen their findings, as to the condition and administration of the fund up to said date. The committee’s report is set out in full in the evidence. It is very complete and frankly discloses that during the thirteen years the fund had then been in existence, little attention had evidently been given it by those responsible for its administration. Meetings of the board had been held very irregularly and sometimes at long intervals ; no minutes were kept, no rent roll or other complete report of the income that) .should be returned by said property was ever made up¡. Much of the property had been allowed to fall in disrepair. The report of the committee concludes with various recommendations concerning the administration of the fund in the future.

“During the interim between 1869 and 1896 the board had a representative whose duty it was to meet the trains coming into St. Louis and endeavor to locate emigrants and travelers who might be entitled to aid from the fund. Between the years of 1894 and 1915 no such representative was employed. In 1915' the present board was appointed and the so-called ‘Traveler’s-Aid Bureau’ was established at the Union Station. The Terminal Company furnishes the bureau with an office in tbe main reception room of the station, which is on the second floor, and when the bureau was opened posted a bulletin calling the attention of its employees to its existence. No special instructions are known to have been given them concerning it, at that time or since. The chief inspector, Mr. Elliott, testified that he had talked to various Terminal employees concerning the work of the bureau when he took charge1 of the work. Terminal employees give attention only to such emigrants and travelers as apply for relief.

“Mr. Elliott, as chief inspector, has been in charge of the bureau since it’s establishment. Prior to his appointment he had been for three years in the secret-service department of the Terminal Railroads Association. He is assisted by a woman who is in charge from seven o’clock in the morning until three in the afternoon. It is the 'duty .of these employees to meet all trains entering the Union Station and to look after the welfare of emigrants and travelers who might come ■within the class designated as beneficiaries of the fund. Mr. Morrey, president of the board, visits the station frequently in the evening and confers with the employees. Cases are investigated and if applicants appear to be entitled to relief are referred to the board. The board, if the case is found within their jurisdiction, issues the necessary warrant to furnish the aid needed. No money is paid out by any employee except on authority from the board. The travelers-aid workers receive no supervision from the office of the board direct.

“At the present time the board employees a secretary, an assistant secretary, stenographer, two mechanics, a janitor, and a woman who does ‘social service work, ’ in addition to the two inspectors at the Union Station. These employees receive the following salaries: Secretary, $2,400 per annum; assistant secretary $1,800; stenographer, $60 per month; mechanics, $75 and $85 per month; janitor, $60 per month; social-service worker, $80; inspectors, $100 and $60 per month. The members of the board do not receive any salary.

“In 1849, the date of testator’s will, and as appears to have been true for a number of years immediately thereafter, a great many foreign emigrants were passing through St. Louis on their way west, particularly to the mining regions. There were, no railroads into St. Louis at that time, and emigrants usually came by steamboat from Njew Orleans; frequently several hundred would land from a single boat. St. Louis was the out-fitting point for such people. At the outbreak of the Civil War and later upon the completion of the Union Pacific Railroad the number and course of travel of foreign emigrants changed. As is shown by plaintiff’s Exhibit No. 10, the number of such persons found to be entitled to aid under the Mullanphy Fund and who were aided varied greatly from year to year. The number of such persons has gradually decreased until now there are practically no emigrants or travelers of the class referred to.

“Passenger agents of various railroads, particularly the Wabash, the St. Louis & San Francisco, the C., B. & Q. and the Pennsylvania lines, testified in substance to the same facts with reference to the trend and condition of emigration at the present time. It was the-unanimous opinion of these railroad representatives that at the time the testimony was taken, July, 1918, emigration had practically ceased. It appeared from the testimony that during the year 1914 one million two hundred thousand emigrants came to this country, that about one-half of that number landed in New York; that the average, number for a few years previous to said date was about one million; that about six per cent of the number landing in New York came to and through St. Louis in 1917. Said ■■ ; tives were unanimous, in their testimony that the European Wjar then being waged was the immediate cause of the cessation of emigration.

“The condition now existing is very abnormal. Said witnesses all stated that no instructions were given their employees at the station with reference to the Mullanphy Fund.

“Said witnesses further testified that emigration traffic over their roads was handled bjy a pool under Government direction at the point of landing. That a portion of such travel is assigned to each road. On cross-examination each admitted that they had no direct connection with, nor means of knowing, except in a general way, the volume or status of emigrant travel on their respective roads.

“The station master of the Union Station testified that the office of the Travelers-Aid Bureau is on the second floor of the station; that approximately twenty-five per cent of the traveling public goes to the second floor; that very few emigrants or like travelers, ever reach this portion of the station. Two inspectors are in charge of the bureau, a woman being there from seven o’clock in the morning until three in the afternoon, and a man from three o’clock in the afternoon until eleven at night. It is the duty of said inspectors to meet all trains and look after all emigrants and travelers in distress, offering, after investigation, the' aid of the fund to those who are entitled under the provisions of the will.

“Mr. Elliott, chief inspector, in charge of said bureau, testified that he was under the direction of Mr. Morrey, the president of the board, and Mr. Ermatinger, the secretary. Mr. Ermatinger stated that he had nothing whatever to do with the management of the bureau at the Union Station, and that, he was not familiar with the plans being followed there in the carrying out of that feature of the administration of the fund. Pie further testified, however, that as secretary he had entire charge of the fund. He further stated that he did not know what efforts were being made to locate emigrants and did not think that the employees were meeting all trains. Mr. Elliott testified that the woman who assisted him in the work of the bureau was ‘supposed’ to meet all trains. He testified that the bulk of the traveling public would not see the office of the bureau where located at the station; that the chief inspector' in charge of the bureau in effect inspects his own work. Mr. Morrey, president of the board, and Mr. Elliott, chief inspector, testified that Mr. Morrey spent three or four hours of at least four or five evenings each week at the station in the interest of the work.

“Railway employees, practically, all from the city passenger department of said roads, testified that no instructions were given to their employees at the station with reference to the existence, or purpose, or operation of the Mullanphy Fund.

.“Mr. Clifford, the present station master, testified that since the beginning of the European War emigrant travel had been light; that before the Travelers-Aid Bureau was established cases of distressed emigrants and travelers were referred to the city police; that in only a few instances had such cases' been referred to the Mullanphy Board; that he had never suggested to the police to take such persons to the office of the Mullanphy Board. .Mr. Clifford further testified that he had never discussed with Mr. Elliott, or any one else, the manner in which the bureau at the station is conducted. Mr. Clifford testified that he had verbally called the attention of his employees to the Travelers-Aid Bureau; that he has under his employ sixty persons,. who come in touch with the traveling public. Witness further testified that he was in charge of the station in 3 904, and had been employed there between 1894 and said date.; that during such time the board had no representative at the station in any capacity.

“Mr. Elliott, chief inspector of the Travelers-Aid Bureau, testified that when employed as a special policeman at the station, as he had been for a number of years prior to his appointment by the Mullanphy Board, he had referred all cases of distressed emigrants and travelers to the station master; that he now, after investigation, refers all cases of emigrants who apply for assistance to Mr. Ermatinger, secretary, and that he is under the secretary’s and president’s direction. He further testified that from May 12, 1916, to April 30, 3.917, there were only seventy-four cases of emigrants locating in the West; that the majority of cases handled by the bureau require simply the locating of relatives and addresses for travelers who are strange to the city.

“Plaintiff introduced a number of witnesses representing various charitable associations, as well as private citizens interested in charitable work, who testified that there are constantly within the confines of the City of St. Louis a class of worthy poor, some of Whom might be considered travelers on their way to locate in various parts of the United States and not necessarily in the West, who in their opinion came within the class of beneficiaries closely allied with the class specifically designated by testator in his will. Much of the testimony of these witnesses advanced personal theories as to the interpretation of testator’s will and the application of the fund, cy pres.

“Theodore Hemmelman, Jr., president of the board in 1804, testified that in his opinion for a period of possibly twenty years the trust estate would fare better if the money were invested in securities on the five per cent basis, instead of real estate. Mr. Morrey and Mr. Russack, members of* the present board, both testified that, in their judgment, the real estate belonging to the fund could not be sold at this time except at a great sacrifice; that the improvements áre now in good repair, and with the exceptions of some unimproved parcels is yielding a fair return on the investment, and that it would not be advisable to change the form of investment of the trust estate at this time to United States Bonds, or other securities. Seventy-five per cent of the property is now- revenue producing. It might not be unwise to sell some parcels in order to be able to improve others.

“No evidence was introduced by or on behalf of the defendant.

“The' only evidence introduced by interveners was that showing their relationship to Bryan Mullanphy, deceased.”

The decree entered by the court! (omitting formal parts and that portion finding the issues generally in favor of plaintiff and against defendant aud the interveners) is as follows:

“T. The court finds that the said interveners, certain heirs at law of said testator, Bryan Mullanphy, have no right, title or interest in and to any of the property, real, personal or mixed, which the said Bryan Mullanphy gave to the City of St. Louis in trust, as set out in the plaintiff’s petition, and it is therefore ordered, adjudged and decreed that the intervening petition be dismissed and judgment be entered against the said interveners and that it be decreed that they have no right, title or interest whatever in and to the property given by the said Bryan Mullanphy to the City of St. Louis, as trustee, and that there is no equity in their petition filed herein.

“2. The court finds that plaintiff, City of St. Louis, is the testamentary trustee under the will of Bryan Mullanphy, deceased, as set out in plaintiff’s petition, and that by said will said Bryan Mullanphy devised to said trustee one equal undivided third of all his property, real, personal and -mixed, in trust, to be and constitute a fund to furnish relief to all poor emigrants and travelers coming to St. Louis on their way, bona 'fide, to settle in the "W)est; that said city accepted by ordinance the trust so created, on November 6, 1851; that the Supreme Court of Missouri at the March Term thereof, in I860; affirmed the judgment of the Circuit Court of the City of St. Lous, which assigned one-third of all the real property of which Bryan Mullanphy died seized, to the City of St. Louis, as trustee, under the terms of the trust created by the will, as set forth in the petition; that as soon as said city became possessed of the legal title to said property, as trustee, it began the execution of' said trust and has done so since said time and is doing so at present; that said trust is administered by said trustee through the instrumentality of a board consisting of three members, styled ‘The Board of Commissioners of the Mullanphy. Emigrant and Travelers’ Relief Fund.’

“3. The court finds that in the management of the real estate since the time said trustee became possessed of the legal title thereof up to the present time much o£ said real estate has been sold or otherwise disposed of, and other real estate has been acquired by said trustee; that some has been exchanged for other lands and considerable has been condemned for public purposes; that at present the real estate possessed by said trust estate and held by said City of St. Louis as trustee is that which is set out and particularly described in plaintiff’s petition.

“4. The court finds that in the management of said estate largo expenditures have been and are necessary, which are altogether out of proportion to the sums conferred in benefits, namely, the amounts given to poor emigrants and travelers coming' to St. -Louis on their way bona fide to settle in the West; that this has resulted from poor location and dilapidated condition of such real estate, which has required and does require heavy expenditures in the way of repairs, and the rentals arising therefrom are not adequate.

“5. The court finds that the number of emigrants and travelers provided for by the will of said testator is not so large as in former years and is growing smaller, but in the opinion of the court it is not likely to cease altogether; that the total net income of the trust estate is no longer needed for the specific purpose designated by testator; that there are from time to time found within the limits of said City of St. Louis numbers of persons, including travelers, strangers, and some emigrants who are helpless and without assistance, who need charitable aid and deserve it, persons who are traveling in various directions other than west, and persons who are traveling west who do not intend to settle there, who become stranded in the City of St Louis and are in need of charitable aid and assistance. And the court doth order and decree that the surplus income, beyond what may be necessary to properly provide for the persons designated by said testator, shall be used for the purpose of furnishing relief to poor emigrants and travelers generally in the City of St. Louis in need and distress, and found to be worthy of assistance; preference at all times to be given to men with families and women and children coming within the designation aforesaid.

“6. The court finds that it will be to the best interest of the estate to sell the parcels of land described in plaintiff’s petition, reserving such property as may be required in the administration and necessary to carry out the purposes of the trust. The court does therefore decree, adjudge and empower said City of St. Louis, as trustee, to sell the propexiy belonging to the trust estate, at public or private sale, on such terms as the Board of Estimate and Apportionment of the City of St. Louis, by order, shall recommend. And the court doth appoint Festus J. Wade, James M. F'ranciscus and Albert T. Terry commissioners to appraise said property and to sell same, acting- in conjunction with and assisting the Comptroller of the City of St. Louis in the manner and on the terms specified. Said commissioners are directed to make a full and complete return of their proceedings for the approval of the court.

“7. Said trustee is authorized, empowered and directed hereafter to invest the proceeds received from the sale of its assets and the surplus income beyond what may be used for the purposes of the trust in bonds of the United States .Government, the State of Missouri, or issued by any municipality of the State of Missouri.

“8. The court doth further find that in order to carry out this decree it is necessary that further orders and directions be made from time to time. The court, therefore, retains jurisdiction of this cause for said purpose of making such further orders, decrees and judgments as may seem proper and lawful in the premises; that either said city, or the Attorney-General of the State of Missouri for the time being may have leave hereafter at any time, upon giving the other party fifteen days’ notice to that effect in writing, to move the court to make such further orders, decrees and judgments as may be deemed proper and lawful.

“9. The court doth further find that the method of conveying and transferring the title to the property of said trust estate, as particularly set forth in Paragraph Seven of plaintiff’s petition, is sufficient in law/andi therefore the court doth adjudge and decree that whenever any deeds or other instruments conveying or affecting any part of the real or personal property belonging to said trust, shall have been duly authorized by ordinance by the Mayor and Board of Aldermen of the City of St. Louis, and shall be duly executed and signed by the mayor for the time being .of said city, with the common seal of the City of St. Louis'impr essed ther eon, is sufficient in law to convey or otherwise affect all the right, title and interest to such property vested in said city, trustee as. aforesaid, whenever such sale shall be authorized by an older of the court herein.

“10. Said trustee is directed by the court' to hereafter, on the first Monday of June in each year, file with the Clerk of the Circuit Court of the City of St. Louis, for the information of this court, a statement showing the administration of such trust estate.

“11. The court doth further adjudge and decree that the cost of this proceeding shall be paid by the City of St. Louis, as trustee, from the trust estate under its charge. ’ ’

Further detailed statement of facts will be made in the course of the opinion.

I. The legal propositions urged by respondent in attempting to have this trust fund administered cy pres and the legal propositions advanced by the interveners in support of their contention that a resulting or constructive trust in the trust fund should be decreed in favor of the collateral kindred of the donor, are each based upon the hypothesis that there has been a failure, or at least a partial failure, of the objects for which this charitable trust fund was created. The learned Attorney-General, appellant, however, contends that the court erred in finding, upon the present evidence, such failure had in' fact occurred. The first question therefore for determination is: Do the facts shown by the present record justify a court of equity in holding that there has been a failure in whole or in part of the objects for which this trust was founded? This issue is one of fact. It will be conceded by all that there has not been a total failure of the objects of this trust, because the evidence clearly shows that up the date of the trial there were poor emigrants and travelers passing through St. Louis to settle bona fide in the West, who come within the express terms of the will.

Has there been a partial failure? After a careful review of the evidence offered we are of the opinion that the facts disclosed thereby are not snch as will warrant us in answering the above question in the affirmative.

The evidence shows that from 1870 to 1896. the number of persons relieved by this fund averaged approximately .1500 persons annually. For the years 1893, 1894 and 1895, the number thus relieved were 2583, 2120' and 1791 respectively. In the year 1896 the number suddenly dropped to 387. During the years from 1896 to 1915 the number relieved annually ranged from 68 to 411. There appears from the evidence, however, some explanation of the cause of this sudden slump occurring in 1806. From the evidence it appears that prior to 1891 the board in charge of this fund kept representatives at Union Station, whose duty it was to meet incoming trains and hunt up and locate persons coming within the terms of the Mullanphy charity, but that about 1896 this practice was discontinued and from that date up until the present bureau was established at TJmon Station in July, 1915, no one was stationed there whose duty it was to investigate and locate the beneficiaries of this fund.

For the years 1915 and 1916, 142 and 138 persons, respectively have been given relief from this fund, and while it is true that during these two years the bureau had been maintained at Union Station in charge of two employees, yet the further fact remains that in August, 1914, about one year before this bureau was established, the World War began in Europe and'that after that time and during1 the war emigration practically stopped coming to this country.

In other words, the only time during the twenty-two years preceding the trial of this cause when any-organized effort was made to keep representatives of this fund at Union Station whose duty it was to meet the traveling public and to discover beneficiaries of this charity’ was during the abnormal time of 1915 and 1916 when emigration was practically at a stand-still, and travel of all kinds was more or less affected.

Furthermore, while the effort made by the present board to locate beneficiaries of this fund is very commendable and appears to be much more than has ever before been done along this line, yet it does not clearly appear from the evidence that all that might be done along this line is even yet being done. The evidence shows that.the office of the bureau is located in the west portion of the second floor of the Union Station, and in a portion of the station where the class of persons entitled to relief from this charity seldom go. Neither does it appear that the numbers of employees of this board is sufficient to enable them to find all the persons who might be beneficiaries of the fund.

Blut even though the evidence showed (which Jit does not) the exact number of persons annually passing through St. Louis who are entitled to the relief provided, we would still be in the dark as to whether that number was sufficient, when properly administered to by this charity, to absorb the annual net income of this fund. Very little definite information is found in this record as to the net income from this fund. The nearest approach thereto is the testimony of one of the present members of the board, who stated that during the last year the gross income from the fund was about $42,000.; That from this amount should be deducted $10,000, annually, for city and state taxes, and that from fifteen to twenty thousand dollars should be spent for repairs and betterments in that year, and that there should also be deducted the expense of the clerical help in administering the fund.

Upon the present showing we are not warranted in finding that there has been a failure of the objects of this trust.

What the future may bring forth we have no way of knowing. During the period of reconstruction the movement of emigrants and home-seekers to the .West may materially increase. It certainly cannot be foreseen that such will not occur. It was the opinion of some of the traffic men who testified in this case that there would be a great influx of immigration following the war.

Until such time as it can be shown with reasonable certainty that there will be a permanent failure of at least a substantial portion of the objects of this trust the question as to the further administration or disposition of the fund does not arise.

The question therefore as to what might be permitted to be done with the fund if there had been a failure of the trust cannot be properly reached or determined in the present case, and any discussion thereof would rise to nó higher standard than mere dictum.

II. It is further contended that the court erred in ordering the sale of all the real estate of the trust es-GS^G an^ the reinvestment of tlie fund in high class bonds and securities. We are of the opinion that this point is also well taken.

Mr. Hemmelman, president of a real estate company and vice-president of a bank, was in 1894 and for about a year and one-half thereafter president of the board having’ control of this fund. He was the only -witness who expressed an opinion in any. manner favoring the sale of the property under its present conditions, for the purpose of re-investment in securities.. On this point his testimony was as follows: “For a period of twenty; years I presume the fund would fare better if the money was invested in securities instead of real estate. I believe it would be better if the money were out on a five per cent basis.” (Italics ours).

Mr. Morrey and Mr. Russack, a majority of the members of the present board in charge of this trust fund, were of the opinion that all of the real estate belonging to the trust estate should not be sold for the purpose of re-investment in Government bonds, etc. Both were of the opinion that it might be for the best to sell off some of the unimproved and non-producing property piece by piece, as the occasion arose and the market would justify, in order to acquire funds with which to improve some of the remaining property, but they were both of the opinion that it would not be best for the trust estate to make immediate sale of all the property. Mr. Morrey in stating the reason for his opinion testified as follows.:

“But you see, your Honor, if you were able to make four per cent net on the property and you tried to sell it, you would be lucky if you could get fifty cents on the dollar, and if you invest that in four per cent securities it is the best you could do, and would be getting two per cent income on the present property.' You could not possibly sell it for. less than fifty per cent on the dollar, which will bring, say, possibly four per cent, if you sell it at fifty cents on the dollar and invest it in four per cent securities.

“It would not be unwise to give the authority to sell the property in case they should find a fair market and get a fair consideration for the property, it might not be unwise to. sell it, but it is hard for me to find a better permanent tangible income than real estate. If you look after it properly it will bring in an income.. Where it fails it is the fault of the man who owns it or who manages it. There is a very good example across the street in the Pierce Building. Fourth Street went down, and they said the property was of no account, and here comes a man along and puts up the Pierce Building, and it is today possibly one of the best income producing pieces of property in a run-down neighborhood.”

There is no showing made in this record as to the condition of the real estate market in. St. Louis on this kind of property. The only evidence offered concerning the probable price the property would bring estimates that it would not likely sell for more than one-half its value.

It is impossible to say upon the facts disclosed by the present record that it would be to the benefit of the charity to sell all of the real estate holdings at this time for the purpose of re-investment in State and Federal bonds. There is no evidence from which it might even be inferred that if the property were sold the proceeds therefrom invested in bonds would yield as large a net return as is now realized.

It is well settled that the power of a court of equity to authorize the alienation of property belonging to a charitable trust should be exercised with caution and one of the prerequisites to the exercise of this power is that it shall “clearly appear that the proposed alienation is for the benefit of the charity.” [5 R. C. L. 363; 11 C. J. 355; Lackland v. Walker, 151 Mo. 210, l. c. 268.

We therefore conclude that the court erred, on the showing made, in ordering a sale of all the real estate belonging to the trust estate.

From the foregoing it follows that the judgment should be reversed and the cause remanded with directions to dismiss respondent’s bill, without prejudice to its right at any time in the future to institute any further proceeding which might become advisable by reason of changed conditions.

It is so ordered.

All concur^ Woodson, J., in the result.


source: Caselaw Access Project

author: BOND, C. J. BLAIR, J. GRAVES, J:

license: Public Domain

text:
    SOUTHWEST MISSOURI RAILROAD COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION.
    In Banc,
    Feburary 16, 1920.
    1. STREET RAILWAY SPURS: Discontinuance. Tbe Public Service , Commission bas the power to authorize an interurban railway company, permitted by ordinance to lay its tracks in the streets .of a city, to discontinue the use of spur tracks connecting the interurban system with railroad stations in said city, no longer essential to the operation of the interurban lines and operated at substantial loss.

      Held, by GRAVES, J., dissenting, with whom WALKER, C. X, concurs, that the Commission has no power to relieve a street railway company from its contractual obligation, imposed by its franchise ordinance, to maintain its tracks in designated streets for a designated period.
    2. -: -: Restriction on City’s Power: Constitutional Provision. That provision of the Constitution (Section 20 of Article 12) which forbids the General Assembly to grant the right to construct and operate a street railway within a city “without first acquiring the consent of the local authorities having control of the street” does not confer on the city power, either by ordinance or contract, to impose upon a public utility conditions of operation and maintenance which would confiscate its property or destroy its power to serve the public. This cohstitutional provision does not mean that a street railway, once properly admitted into the city, cannot be permitted by the State to take up an unprofitable portion of its tracks.

      Held, by GRAVES, X, dissenting, with whom WALKER, C. X, concurs, that where the franchise contract imposes on the street railway company the obligation to operate the tracks, the State, without the city’s consent, cannot, under said constitutional provision, grant permission to abandon the tracks, since the city has the right to impose the condition, and the operation of the tracks is not an exercise of a police regulation, such as is the increase or decrease of fares.
    3. -: -: Denial for Lack of Jurisdiction: Questions for Review. When the Public Service Commission has dismissed the application of an interurban railway to discontinue the operation of certain spur tracks laid in the streets of a city, on the sole ground that it is without power to grant the relief, the question whether the franchise ordinance contains express provisions • denying the company the right to take up a part of its tracks when the consent of the State is procured, and the question whether the ordinance in itself by its terms and conditions permits the company to remove unprofitable portions of its tracks, cannot be considered in an appeal from an order of the Commission refusing to consider the case on the ground that it had no jurisdiction. These are questions of fact and for determination by the Commission, and the power of the court is simply one of review, after jurisdiction has been assumed.
    4. -: --: Consent of City: Abandonment of Track. It cannot be ruled that if the street railway company is permitted to remove its tracks from a part of the streets which the city consented it might occupy with its .tracks, the consent of the city to the company to enter was not given at all.
    5. -: -: Abandonment at Will. A street railway company which has obtained the city’s consent to occupy certain streets with its tracks cannot abandon any of them at its will. In no ' event can it abandon a street except upon a showing that the public will not be injured.
    6. -: : Regulating Use. The power1 of the city to regulate the use of streets which the city has consented a street railway company may occupy is to be ascertained by the contractual relation. The public service character of the company subjects it to regulation, but that fact does not determine whether the regulatory power extends to a particular thing.
    7. -: -: Permission to Occupy: Obligation. A more permission granted by the franchise ordinance to a railway company to occupy streets for forty-nine years is not a contract to operate for that period, nor can such an obligation be implied from the permission. . 1

      field, by GRAVES, J., dissenting, with whom WALKER, C. J., concurs, that where the city has consented that a railway company may construct its lines in the streets upon condition that it operate them for 49 years, the condition is valid, does not transgress the police powers of the State, and can be abrogated only by consent of the city itself.
    8. -: Conditions Imposed by Franchise. The constitutional provision (Section 20 of Article 12) merely secured from legislative interference the right of a city to deny entrance to a street railway, and the right to impose conditions is implied, but is not unlimited, for the conditions must be within the scope of municipal authority. The city cannot, in the exercise of its power to condition its consent, whether by franchise contract or otherwise, curtail the police power vested in the Legislature, nor draw under its dominion subject-matter not otherwise within its jurisdiction.

      field, by GRAVES, J., dissenting, with whom WALKER, C. J., concurs, that a condition expressed in the franchise contract that a street railway shall operate its lines for a period of 49 years as the price of the city’s consent to construct its tracks in designated streets is valid, does not contravene the police powers of the State, and therefore the Public Service Commission cannot grant to the company, without the city’s consent, permission to abandon certain spur tracks, on the ground that their further operation is unprofitable and wasteful. - ■
    9. -: -: Estoppel. The question of estoppel in favor, of a city, in consideration of conditions imposed upon a street railway company at the time a franchise ordinance to occupy the streets was enacted, does not arise in a casé in which the public, represented by the Public Service Commission, is a substantial party. ' ,
    Appeal from Cole Circuit Court. — Hon. J. G. Slate, Judge.
    Reversed and remanded (with directions).

      McReynolds & McReynolds for appellant.
    The fact that the Constitution requires the consent of the municipal authorities to the grant of the use of the streets of such city for street railway purposes, does not prevent the Public Service Commission from granting to a street railway company relief from unreasonable requirements of an ordinance granting such franchise rights in the streets. A careful reading of Section 20 of Article 12 of the Constitution shows that the limitation on the power of the General Assembly is not general, but is strictly limited to the requirement that the consent of the local authorities having control of the streets intended to be used by the street railway must be obtained. The legislature is not even prohibited. from fixing the manner and terms-on which this consent may be obtairied. An investigation of the statutory enactments since the Constitution of 1875 shows how the General Assembly has progressively assumed greater control over the granting of such .franchises and placed limitations around the rights and powers of the municipality. R. S. 1879, sec. 4879; R. S. 1889, secs. 1523, 1824, 1826, 1826, 1827; Secs. 6115-6-7-8-9', R. S. 1899; Laws 1887, p. 40. A municipality has no power to grant a franchise to a railroad over its streets unless the same is given by constitutional or legislative authority. A. & P. Railroad v. St. Louis, 66 Mo. 256. Such powers'were first granted by legislative authority. Fink v. City of St. Louis, 71 Mo. 52,; State ex rel. Kansas City v. East Fifth St. Ry. Co., 140' Mo. 539; Kavanaugh v. St. Louis, 220 Mo. 496. The Legislature has made clear its meaning as to the powers, authority and scope of duty of the Public Service Commission. State ex inf. v. Gas Co., 254 Mo. 515; State ex rel. v. Pub. Serv. Comm., 270 Mo. 547'.

      A. Z. Patterson, General Counsel, James D. Lindsay, Assistant Counsel, for Public Service Commission.
    (1) That the Legislature attempted to grant to the Public Service Commission power to release a street railway company from a franchise obligation entered into upon a sub ject, essentially contractual in its .nature, and of the very essence of the purpose for which the company was chartered, and the franchise granted, is most doubtful. Public Service Commission Act, sec. 2, subdivisions 5, 7 and 26; Sec. 16, subdivisions 2, 3, 8 and 9; Sees. 261, 27, 43, 47 and 49; State ex rel. United Railways v. Commission, 270 Mb. 442; Lusk v. Atkinson, 268 Mo. 109; State ex rel. v. Commission, 192 S. W. 460 ; Quimby v. Pub. Serv. Comm., 223 N. Y. 224. (2) The grant of the franchise by the city, in respect of use of its streets, and acceptance thereof by the company, constituted a contract which neither the city nor the cornu pany could annul without the “consent” of the other. Sec. 20, Art. 12, Constitution; Springfield Ry. Co. v. City of Springfield, 85 Mo. 674; Hovehnan v. K. C. Horse Ry. Co., 79 Mo. 632'; State v. East Fifth St. Ry. Co., 140 Mo. 539; St. Louis & M. R. Railroad Co. v. Kirkwood, 159 Mo. 239; Blair v. Chicago, 201 U. S. 400; Grand Trunk Ry. Co. v. South Bend, 227 U. S. 544, 44 U. R. A. (N. S.) 405. (3) The State may authorize a city and a street railway company to make an inviolable contract for a definite and not grossly unreasonable period, for the occupation and use of certain streets of the city by the company, in the service of the public. Milwaukee Electric Ry. & light Co. v. R. R. Comm., 238 U. S. 17'5; Home Tel. & Tel. Co. v. Los Angeles, 211 U. S. 273; Detroit v. Detroit Ry. Co., 184 U. S. 382; Cleveland v. Cleveland City Ry. Co., 194 U. S. 533. Provided the authority be granted in express and unmistakable terms; and in this case the authority is constitutional, and unuuistakable. Sec. 20, Art. 12, Constitution. And the unabridged police power of the State to prescribe reasonable rates, and regulations, legislative in nature, upon subjects within the scope of the legislative power reserved by the State (Sec. 5, Art. 12, Constitution; Sedalia v. Commission, 204 S. W. 497; Fulton v. Commission, 204 S. W. 386; St. Louis v. Commission, 207 S. W. 799; Kansas City v. Kansas City Rys. Co., 140 Mo. 559;) does not destroy the contractual power of the city, exercised upon a contractual subject, in the manner and within the limits prescribed by said Section 20. (4) The State has set a limit upon its own power over the streets of its cities in the one respect of the occupation and use of those streets by a street railway company, in that the city must be contracted with, must give consent in its own constitutional right, as a condition precedent to such occupation and use. The city lets the use of a definite place, for a definite time, and for a definite purpose; the company enters upon the place, for the time, and to carry out the purpose — a service to the public for its own prospective gain. (5) Irrespective of all the foregoing considerations, the order of the Commission should be approved, because it could not properly grant an application which neither alleged inability to operate the spurs, nor a loss on all the operations of the company, nor such impairment of its finances as would impair its ability to render efficient service to the public, upon other or more important branches of its system. State ex rel. Mo. Pac. Ry. v. Atkinson, 289 Mo. 646; Iowa v. Old Colony Trust Co., 215 Fed., 307 L. R. A. 1915A. 549.
   BOND, C. J.

— The plaintiff is an incorporated interurban railway company connecting Carthage, Joplin, Webb City and other towns in Missouri, and extending into Kansas. The construction of tins street railway in the City of Carthage was under and ordinance permitting the assignor of the company the user of a large number of local streets, and requiring in consideration thereof interurban connections by electric rapid transit, with certain other towns named in the ordinance. These interurban connections were duly constructed and are now fully maintained by plaintiff, which, also, as incidental thereto, ran spur tracks through the streets of Carthage connecting its interurban system with two railroad stations in that city. Over these spur tracks transfers were issued by the rapid transit lines. The plaintiff asked the Public Service Commission to discontinue these spur tracks, which it alleges were not essential to the maintenance of its interurban lines and which were sparsely used, ran over a very short distance and could not be operated without a loss of $2500 a year or $50,000 in 20 years. The Commission took the view that it .was without the power to grant the relief sought, however “meritorious the case presented by the company might be” and dismissed the complaint. Proper steps were taken to obtain a review of the findings and orders of the Commission, which were sustained by the Circuit Court of Cole County, from which judgment the railway company duly appealed.

I. Unless the issue in this case is distinguishable in principle from the one presented in City of St. Louis v. Public Service Commission, 207 S. W. 799, this appeal is dominated by that ruling and the judgment of the circuit court will have to be reversed and the order of the Commission set aside. The learned counsel for the Commission concede the rectitude of that ruling and the cases sustaining it in this jurisdiction, but insist that said ruling related to the question of the power of the Commission to raise the rates of water, telephone and street railway companies “above those fixed by contract” with a municipality, and that they do not relate to cases like the present which involves the rights of a utility (in this instance a street railway) to discontinue the operation of any of its1 tracks constructed under a permissive ordinance, for the reason that it could be carried on only at a great loss.

The franchise of a street railway company is derivable solely from the Legislature. Its right to exercise that franchise over the streets and alleys of a particular municipality, is subject to the regulatory control of such city, which may evidence that control by an ordinance consenting to the use of its streets and alleys and designating those over which the street railway may operate its State-derived corporate powers. [Sec. 20, Art. 12,- Constitution 1875.] It was ruled that the City of St. Louis, in the exercise of such a regulatory control over its streets, could not make an inviolable contract, with a street railway for a fixed rate of fare; that to do so would impinge upon the reserve power of the Legislature to exercise plenary control of any matter falling' within the domain of the police power, as rate-making does. It was further held that Section 20 of Article 12 was not designed nor intended to abridge the full power of the Legislature over the class of subjects embraced within the inalienable police power of the State. [Const. Art. 12, sec. 5; Tranberger v. Railroad, 250 Mo. 46, affirmed 238 U. S. 67.] ^ It was also held that Section 20 of Article 12 of the Constitution,, to-wit: “No law shall be passed by the General Assembly granting the right to construct and operate a street railroad within any city, town, village, or on any public highway, without first acquiring the consent of the local authorities having control of the street or highway proposed to be occupied by such street railroad; and the franchises so granted shall not be transferred without similar assent first obtained,” did not, in terms, nor by necessary intendment, devolve upon the municipalities therein mentioned any part of the unrestricted power of the Legislature to deal with all matters pertaining to the police power of the State where not constitutionally prohibited from so doing.

In the exercise of this great lawmaking function, the State is not obstructed by a contract between one of its agencies (cities, towns or villages) and other persons, for the reason that the State cannot alienate any of its sovereign powers which ai*e necessary to the public welfare, or essential to the protection of the health, morals and property of its citizens. As an obvious corollary of this principle, no municipality, either by ordinance or contract, can impose upon a public utility essential to the welfare of. the people, conditions of operation or maintenance which would confiscate its property or destroy its power to serve the public.

We are quite of opinion that there is no distinction in principle between the obligation (if, indeed, any was imposed by the mere permissive ordinance in question) on the part of the street railway company to maintain two spur tracks, not indispensable to the performance of its interurban duties, at a cost of operation which would preclude them from carrying- on and maintaining its interurban system for the benefit.of the people of the State served by that convenience, and the duty to exact a reasonable rate for service. Both relate to adequate performance of obligation to the public and are controllable by the Legislature or its authorized agency, the Public Service Commission. [Selectmen v. Cit. St. Ry., 199 Mass. 394.] It is well stated in a recent meritorious publication, viz: “It is settled that the general police power of the State embraces the regulation of the service and rates of public utility enterprises for the promotion of public convenience and the general welfare.” [Harvard Law Review, Nov. 1918, p. 741.] (Italics ours). See, also, Munn v. Illinois, 94 U. S. 113, and a number of other decisions, including State ex rel. Sedalia v. Pub. Serv. Com., 204 S. W. 497. See, also, Union Drygoods Co. v. Ga. Pub. Serv. Com. U. S. Sup. Ct. Ad. Ops. Feb. 1, 1919, p. 116. >

As we understand the finding of the Public Service Commission upon the facts adduced in support of the complaint filed before it, the evidence conclusively showed that the two local spur tracks connected with the general interurban system could only be maintained and operated at a disastrous loss. It seems conceded that the weight of evidence fully sustains this finding of the Public Service Commission, which body only refused relief upon the notion that it was constitutionally prohibited by the terms of Section 20, Article 12, of the Constitution, supra. It has been shown that that provision of the Constitution is not restrictive of the powers of the Commission in virtue of its agency as the representative of the Legislature.

It necessarily follows that the judgment of the circuit court sustaining" the order of the Commission dismissing the complaint must be reversed and the cause remanded with directions to the circuit court to vacate that judgment and to enter a judgment setting aside the finding of the Commission and remand the cause to that body with directions to proceed in a manner not inconsistent with this opinion. It is so ordered.

PER CURIAMlThe foregoing opinion was prepared by our late associate, Bond, O. J., and was thereafter transferred to Court in Banc. After reargument and due consideration the opinion is adopted and the judgment of the circuit court is reversed and the cause remanded with the directions set out in the opinion.

Blair, J., concurs in a separate opinion, in which Woodson, Goode and Williamson, JJ., concur; Graves, J., dissents, in a separate opinion, in which Walker, C. J., concurs; Williams, J., not sitting.

BLAIR, J.

(concurring) — The Public Service Commission decided it was without jurisdiction to entertain a proceeding of this kind, whatever merit might seem. to inhere in the facis of a particular case. Whether this view is right or wrong is the sole question presented by this record. Since it has been suggested that the proceeding did not ride off before the Commission on the question of jurisdiction, an examination of its opinion is pertinent. In that opinion the conceded and conclusively established facts were stated as such, and the tendency of the evidence was stated as to the rest. After stating these things and observing that after an application to the city for leave to remove the tracks in question here, appellant “ instituted this proceeding before the Commission,” that tribunal stated the question before it thus: “The city has challenged the jurisdiction of the Commission to grant the relief prayed for and we have concluded this contention is well founded.” The Commission then proceeds to give its reasons for this conclusion. It holds (1) that “we have failed to find any authority in the Public Service Commission Law specifically conferring upon the Commission power to relieve a street railway company from the performance of franchise provisions granted by the city and accepted by the company, nor do we find such power necessary to enable the Commission to carry out the purpose of the law,” and (2) that “we reach the same conclusion if we consider the authority of the city as to matters properly included within the franchise granted by it to the street railway company. Section 20 of Article 12:, of the Constitution of this State provides,” etc. After discussing, in this connection, Section 20 of Article 12 of the Constitution, the Commission, in its opinion, says: ‘ ‘ Our conclusion is, that however meritorious the case presented by the company may be on its facts, this Commission is not clothed with power to grant the relief sought.” After discussing a cross-complaint of the city and holding it cannot be considered, the opinion concludes: “It follows from the views expressed that the complaint should be dismissed.”

It is too obvious for discussion that this opinion of the Commission.holds exactly what it says in express words, i. e. that the contention of the city that the Commission has no jurisdiction “is well founded.” In State ex rel. v. Public Service Commission, 259 Mo. l. c. 710, the Commission had held it was “without authority to grant the relief prayed for ‘regardless of any evidence that may be submitted” and ‘regardless of the fact that complainant may show such rates, fares and charges to be unjust, unreasonable and confiscatory -of its property.’ ” This court held the Commission had power and ordered it to proceed with the matter and dispose of it “as the facts warrant.” In this' case the Commission has made an express finding it has no jurisdiction, refused for that reason to consider the evidence in reaching its decision, and, I repeat, the sole question is' whether this finding of no jurisdiction is correct under the law.

I. In State ex rel. Public Service Commission v. Missouri Southern Railway, 279 Mo. 460 and 489, 214 S. W. 381, it was held that a railroad company could not abandon tracks, operated in connection with its main line, without first securing* permission from the Public Service Commission so to do.. Identical provisions of the Public Service Commission Act of 1913 disclose the intent of the Legislature to apply the same principle to street railways. If these statutory provisions are valid and applicable to relator, then the Commission has reached an incorrect conclusion as to its jurisdiction.

II. The only constitutional provision which is put forward as justifying the holding of the Commission is Section 20 of Article 12 of the Constitution of the State, which is set out in the opinion prepared by Judge Bond in Division and transferred to Court in Banc with the case. This section expressly, so far as concerns the questions in this case, provides that the General Assembly shall not pass any law “granting the right to construct and operate a street railroad within any city . . . without! first acquiring the consent” of such city. It is argued this section justifies the action of the Commission in this proceeding. There are two reasons why this position is not tenable here.

There is no contention possible that Section 20 of Article 12 expressly provides that a street railway, properly admitted into a city, cannot be permitted by the State to take up an unprofitable portion of its tracks. All that could be claimed is that the city can impose such conditions as the price of its consent or that such condition is necessarily implied.

(a) The question whether the franchise ordinance contains express provisions denying the company the right to take up a part of its tracks when the consent of the State is procured, and the question whether, that ordinance in itself by its terms and conditions permits the company to remove unprofitable parts of its tracks, cannot be reached in this case. These are questions of fact and for determination, in the first place, by the Public Service Commission. This appeal is from an order refusing: to proceed to the consideration of| the case, on the ground that the Commission' has no power to do so. ■ Whether there is a valid franchise contract between relator and the city which enables the latter effectually to resist the order sought, or, in the absence of such a franchise contract, whether the facts justify such an order are matters for investigation after jurisdiction has been assumed. The power of this court is simply one of review, and we are not authorized to review the facts, and make a finding of our own thereon until after the Commission has exerted its power over the facts and made its finding, one way or another. This- is true regardless of the manner in which the law allows this Court to review the evidence on aupeal in a case like this. For this reason, alone, the judgment should be reversed and the cause remanded to the Commission for the performance of its proper function.

(b) So far as concerns the question of implying a condition from the grant of the right to enter, it is manifest none can be implied in contradiction of the terms of the franchise ordinance. Whether such an implication in this case would contravene that ordinance • .g a qlies^on reached only after the Commission assumes jurisdiction and reaches the facts. This it has not dotíe. For this reason this theory of implication does not answer what is said under (a) supra.

III. Even if it be assumed that what is said in Paragraph II, supra, is not sufficient to preclude, in the circumstances of this-appeal, the further consideration of the case, and that we can assume the franchise ordinance does not expressly or impliedly per-the company tio remove tracks under circumstances tbe evidence is said to tend to show in this case, the holding of the Commission that it had no jurisdiction is nevertheless erroneous.

(a) It does not appear that the city has actually imposed any condition relating to the right of the street car company to take up track under circumstances which, in the absence of such conditions, would render it lawful.

(b) It has been suggested that since the city consented to the use of certain streets then, if abandonment of a part is permitted, it cannot be said the city ever consented to the entry. This view seems based upon the idea that since the city did not originally consent to the use, solely, of such streets as would be occupied after a part abandonment, the consent of the city completely disappears simultaneously with the taking up of part of the track. The query is, “When did the city ever consent to the use, by themselves, of the parts of the street still occupied after a part abandonment is permitted?” The question this argument is used to answer is whether in giving its consent, the city gives it subject to all the applicable law and in anticipation of the application of that law to its consent, and whether the law applicable permits the State to authorize the abandonment of a part of the whole line to which the consent applied. In such a situation to argue that the consent never was given if part, in a proper case, is permitted to be removed, is to assume that to be true which it is the purpose of the argument to prove. The argument proceeds in a circle. When the question is whether consent was given subject to existing law and whether that law is a certain thing, it is no answer to say that “consent was not given subject to such law because, if the existing law applied to the consent then consent was never given.” The argument cannot be advanced by this mode of reasoning.

(c) Like observations apply with equal force to certain arguments based upon the declaration that the constitutional provision is designed to confer upon the city “supreme power” over its streets, and it would be anomalous to hold that the constitutional provision “while conferring absolute power upon a city to grant the use of its streets in the first instance; it would nevertheless permit a railway company, when the use had been granted, to abandon it at its will, regarjdless not only of the rights of the city but of the public.” This is subject, also, to the further criticism that no effort is being made to justify any view that the company could “abandon the use” of city streets “at its will” in any case. In fact, it has been held it can do nothing of the ldnd. This proceeding shows it is attempting nothing of the kind. In no event could it abandon a street except, upon a ¿bowing that convinced the Commission or this court that the public would not be injured. The existence of this proceeding necessarily implies that much. Recurring to, the first observation concerning this last mentioned argument, it is clear that in considering the question whether the city possesses •a certain right or power, it is- not sound argument to assume “the city’s power is ‘supreme,’ is ‘absolute,’ and, therefore, it has the power we are inquiring about.”

(d) It is said further thaitl “the power to grant the right to use the streets in the first instance carries with it the consequent power to regulate that use when granted. This is true not only on general principles, but is emphatically so here because of the contractual relation created between the city and the street railway company by the grant of the use of the streets, and also on account of the public service character of the company.” The question of the regulation of the use of the streets during occupancy is not in this case. The contractual relation cannot be assumed in argument to be this or that since the inquiry here is what that contractual relation is and includes. The public service character of the relator is the thing which subjects it to regulation, but that character does not answer the question whether the regulatory power extends to a particular thing in this particular, case.

(e) Another argument advanced is based upon the view that since the franchise ordinance gave the relator the right1 to operate for forty-nine years, therefore the franchise ordinance became a contract to operate for forty-nine years the whole line, without change. This is necessarily predicated upon the idea that the Commission took jurisdiction of the case and that it based its ¡finding upon the evidence. The fallacy of this has been pointed out. The Commission held that the question presented was whether it had jurisdiction. It then, held it had jurisdiction, could have none under any conceivable state of evidence, refused to consider the facts and dismissed the complaint because it had no jurisdiction. Further, the franchise ordinance, did not constitute a contract to operate forty-nine years. This feature of the franchise was not contractual or obligatory. It was permissive. Though it be assumed the city might have imposed an obligation to operate for a fixed period, it cannot be claimed this ordinance pretends to do so , by its terms. ' The effort made in the argument now under consideration is to imply such an obligation from a-grant of a right. If this implication arises in this case it arises in every case. Iti does not depend upon the constitutional provision referred to. It is argued it is a condition protected by that constitutional provision. It is not one arising out of it. It amounts, therefore, to a declaration that, as a matter of law, whenever a street car company (railroad and other public service corporation, as well) enters upon the enjoyment of franchise rights, or part of franchise rights granted it, it is obligated to operate the whole during the full period for which the right to operate is granted. This is raising an implication not at all necessary on the facts and clearly in restriction of the police power of the State. During J;he time the company operated it would be subject to all valid ordinance regulations whether in the franchise or subsequently enacted. The argument implies from the franchise ordinance and a building of the car lines over a part of the streets designated therein, a contract, to operate the lines built, during the whole time over which the right might extend, affixes this implied contract, as a condition, to the consent to .enter the city, and holds that this is protected from interference by the State in the exercise of the police power. In the first place, as pointed out, it is not pertinent to the question of jurisdiction; second, it assumes a permissive grant to be a contract; third, it holds that a condition implied from an arrangement between a public service corporation and a municipality by its own force frees itself from the exercise by the State of the police power, regardless of its effect in burdening the public with the necessity of paying, on going lines, the expenses of the operation of useless appendages to a street car system. In this case the burden would fall upon those using relator’s interurban lines. The principle sought to be established by this argument must be as broad as we have stated it or it is of no force at all to prevent the intervention of the State through the Commission.

IV. It has been consistently held that in giving its consent to the use of its streets by a street railway a city lawfully may impose conditions. The cases are 'collected in City of St. Louis v. Pub. Serv. Comm., 207 S. W. 799. The authority of the city to con- .. ,. , « -, dition its assent is not expressly conferred by Section 20 of Article 12. The power is implied from the right entirely to withhold such assent. Section 20 introduced no new principle and created no new right. It merely made secure from legislative interference the right of the municipality to deny entrance to a street railway, a right theretofore quite generally existing and exercised under statutory or charter provisions. Nothing was added kv the power itself by making the Constitution rather than the statutes the repository of the power. The right of the city to impose conditions is still an implied right. This right or power is not unlimited. At least as between the municipality and the -public as represented by the General Assembly, the conditions affixed to the consent must he within the scope of municipal authority. Section 20 of Article 12 does not confer upon the city authority, by means of conditions imposed, to draw under its dominion subject-matter not otherwise within its jurisdiction. Neither can such conditions be employed to require the performance of a forbidden act nor fo limit the taxing power of the Legislature. The question of estoppel in favor of the city, referred to in cases in this State, does not arise in a case in which the public, represented by the Commission, is a substantial party. It is also settled that a city by means of conditions engrafted upon consent cannot limit, control or interfere with the police power or its exertion in the regulation of street railways. [3 Dillon on Mun. Corp. sec. 1229; St. Louis v. Pub. Serv. Com., supra.] These limitations upon the city’s power to condition its consent existed before the adoption of the Constitution. They arise irresistibly out of the nature of municipalities and their relations to the State. They were carried into Section 20 ol Article 12‘ as certainly as was the power to impose conditions at all.

Formerly the Legislature had full power over city streets and rights of street railways thereon. It is still the source of the powers of a street railway organized in this State. The charter is from the State. Such charter does not relieve the corporation from obedience *to regulatory statutes valid as exertions of the police power. Neither, as stated, can the city in the exercise of its power to condition its consent, whether by franchise contract or otherwise, curtail the police power vested in the Legislature. [State v. Railroad, 242 Mo. l. c. 375; City of Fulton v. Pub. Serv. Com., 275 Mo. 67; City of St. Louis v. Pub. Serv. Com., 207 S. W. l. c. 805.]

The power of the city to refuse admission to a street railway is beyond legislative control. Doubtless there are conditions which may be affixed pursuant to the city’s implied power under Section 20 which are equally exempt therefrom. A city in a particular case might impose conditions which, are invalid, and it may be the city "would not have given its assent to the entry of the company. except, for these conditions. Whether such conditions are merely void or whether their invalidity is ground for avoiding the whole franchise are not questions determinable on this record.

I concur in the opinion of Judge Bond except as herein otherwise indicated.

Woodson, Williamson and Goode, tJJ., concur.'

GRAVES, J:

(dissenting). — I have not changed my views in this case. The Constitution requires the assent of the city, before a street railway company mlay construct its lines over the streets of the city. The city can , say the assent is given, but upon the condition that the street railway company shall operate its lines for a certain and definite number of years. In this case it was 49 years. This is a valid condition, and it requires the assent of ■ the city to undo what lias been done. This condition does not strike at the police powers of the State. If the company is losing money, it can. increase its charge through the Public Service Commission. The sole ease made before the Commission was the loss of money in the operation of the road. The case was heard, evidence taken, and opinion written in which the facts, are stated. Under the Constitution the Commission had no power to uproot the franchise contract as to the term the railroad should perform its public service. This1 term of the contract does not contravene the police powers, and is valid. The rate clauses of these franchises are invalid, because they do contravene the police power. The actual ruling of the Commission may be awkwardly expressed, but the fact remains that they said to the railway company, in effect, if all you say is true, and all your evidence is true, we can’t relieve you, because under Section 20-of Article 12, you had to get the assent of the city, and you say that you did get such assent upon condition that the cars were to be run for a definite time, and this condition we can n'ot change, because it was a proper one under the constitutional provision. In other words, you ask relief which we can’t grant under your own evidence and statement of the case. You asked for the constitutional assent of the city, and you say that you got such assent coupled with a lawful condition, which condition you accepted, tore up the streets and built the road. Now when you discover that your road does not pay, you ask us to strike from the contract a lawful condition under Section 20 of Article 12 of the Constitution, and this the Commission has no power to do. This is the substance of the ruling by the Commission, and we think it correct.

The case was in fact tried, and an opinion detailing the facts found was written. The opinion used the word jurisdiction, where it really meant that the Commission has no power, by reason of rights given the city under Section 20 of Article 12, to change or ignore the terms of a written contract. We have held that the Commission can ignore the rate terms of the franchise contract, because such terms entrenched upon the police powers of the State. But we have never gone so far as to say that the Commission can ignore other provisions of the franchise contract, which do not contravene the police powers. In the instant case the Public Service Commission in the opinion simply says we can’t ignore this valid condition of this franchise contract. This is the sum and substance of its ruling, and nothing more. The Commission as shown by the opinion exercised its power, but refused relief on the theory that it had no pov^er (jurisdiction) to set aside the franchise contract. The judgment should be affirmed.

Walker, G. Jconcurs in these views.