author: WOODSON, J.

text:
    CITY OF LADDONIA, Appellant, v. CHEEVER DAY.
    Division One,
    June 1, 1915.
    1. ADDITION TO CITY: Description of Land: Starting Point. A description of an addition to a town which begins with the words: “Begin at the quarter section corner on the east side of section 35, township 52, range 7, and run west thirty feet,” contains no definite beginning point, and therefore it is impossible to definitely locate the land embraced in the addition from such description.
    2. -: -: -: Cured By Plat. But when the instrument recites that it is accompanied by a plat and that plat definitely locates an avenue which is the subject of litigation between the city and a private land owner, as well as his land, and that instrument, containing both the imperfect surveyor’s description and the plat, is executed, acknowledged and recorded by the dedicator, then by the statute (Sec. 10294, R. S. 1909) the street so laid out in the plat becomes dedicated to public use, and the title thereof vests in the city, whether or not accepted by the city.
    3. -: — : -: -: -: Valid Statutory Dedication; Estoppel. The execution, acknowledgment and recording of a plat of an addition to a town, is a valid statutory dedication of all the streets designated thereon to public use; and thereafter neither the dedicator nor any one claiming under him can change the boundaries of such streets; and the sale of lots by reference to such plat constitutes it a good dedication, even if the dedication by plat were incomplete; and the purchaser of lands from the dedicator or his grantees or heirs, whose deed describes the lands by the lot and block numbers mentioned in the plat, is estopped to assert a hidden or insufficient starting point in the surveyor’s description of the addition contained in the dedicatory instrument.
    4. -: Location: Conflict in Surveyor’s Description and Actual Location of Plat. The rule that where an authentic plat of a city addition is referred to in a deed conveying lots, the particulars of the description in the plat are not conclusive, and if the lines of the original survey can be ascertained they will constitute the true boundaries, although conflicting with the descriptions in the plat, has no application where it is impossible, because of the imperfect surveyor’s descriptions in the dedicatory instrument, to apply them with certainty to any particular tract; and, in such case, where both the city and the defendant claim title to a certain street according to the actual location of the plat, which by its map is definite, their rights will be determined by the map, and not according to the unascertainable original lines of the surveyor’s description.
    5. -: -: -: Description By Monuments, Etc.: Plat Alone Should Govern. The statute (Sec. 10294, R. S. 1909) suspended the old rule as to the binding force of monuments, courses and distances in the descriptions of additions to cities, and declared that a plat, executed and recorded in conformity with its requirements, if covering and indicating the land owned by the dedicator, should be used to ascertain the location of lots and streets of the addition, whether or not it conforms to the lines of the survey, and especially after lots have been sold and improvement of streets have been made in accordance with it.
    Appeal from Audrain Circuit Court. — lion. James D. Barnett, Judge.
    Reversed and remanded.

      Fry dk Rodgers for appellant.
    (1) The plat of Smith’s Addition, together with the description of the surveyor and the dedication of streets and alleys, duly acknowledged by J. P. Smith vested in Audrain county the fee simple title to the whole of Western avenue as located on the recorded plat. Sec. 10294, R. S. 1909- Sec. 6573, R. S. 1879; Brown v. City, 128 Mo. 17; Railroad v. Baker, 183 Mo. 322; Buschmann v. City, 121 Mo. 533; Hannibal v. Draper, 15 Mo. 634; Price v. Inhabitants, 77 Mo. 447. (2) The verdict is against the evidence. Western avenue, including that part in controversy, was conveyed by a proper instrument to the county of Audrain for the public. Defendant admits that, but claims the land described in the plat as Western avenue was not conveyed in fact, but other lands were conveyed. In other words, defendant attempts to set aside by oral evidence a solemn conveyance of real estate made in writing. Johnson v. Quarels, 46 Mo. 426; Kennedy v. Kennedy, 57 Mo. 73; Smith v. Smith, 201 Mo. 547. (3) It was the duty of Joseph P. Smith, as the proprietor of “Smith’s Addition,” to canse to he made an accurate map or plat thereof particularly setting forth and describing “all streets and alleys and all lots for sale, by numbers and their precise length and width.” The law presumes he did his duty. Secs. 6569, 10290, R. S. 1909. (4) The deed from Farres to Bowman and from • Bowman to defendant both convey Block Four “according to the recorded plat thereof.” The recorded plat showed the lots to be only 114 feet long and the deed to defendant accepts and recognizes the plat and he is bound by it. Bast v. Mason, 165 Mo. App. 727; Jeffords v. Dreisbach, 168 Mo. App. 577; Longworth v. Sedevic, 165 Mo. 229; Lindsay v. .Smith, 178 Mo. 189. (5) The testimony was not sufficient to overthrow the recorded plat and written dedication of Western avenue. They .constituted a written conveyance of Western avenue to the public and located its east line 556 feet west of west line of Pine street as claimed by defendant. Whitehead v. Atchison, 136 Mo.. 485.

      Clarence Barnes, F. B. J esse and E. C. Kennan for respondent.
   WOODSON, J.

This is an action of ejectment brought by the city of Laddonia against the defendant, for the possession of a certain strip of land, alleged to be a part of Western avenue, a public street in Smith’s Addition to said city, which will later be more particularly described.

The judgment was for the defendant, and the plaintiff appealed the case to the St. Louis Court of Appeals, and upon motion the case was .transferred to this court, because it involved the title to real estate within the meaning of the Constitution.

The following is a copy of description of said Smith’s Addition, formal parts omitted:

Description of Joseph P. Smith’s Addition to Laddonia, Missouri.
(Begin at the quarter section corner on the east side of section thirty-five, township fifty-two, range seven, and run west thirty feet. Run thence south parallel to the section line one hundred and five feet for a point of beginning, thence south 88° 20' west 556 feet to the northwest corner of Bloch 3; thence south parallel to the section line 850% feet to the north line of the C. & A. R. R.; run thence northeasterly as shown in the accompanying plat to the southeast corner of Block Two (2); run thence north 473% feet to the point of beginning.
The accompanying plat which is a part of this description fully and truly shows the size and location of all lots, blocks, streets and alleys and is a true copy of said Addition as laid off by me Dec. 1st, 1883.
C. D. Rodsers, Surveyor of Audrain County, Missouri.
All the streets and alleys in the foregoing plat of Smith’s Addition to Laddonia, I hereby convey to the county of Audrain, State of Missouri, for public use as streets and alleys as long as they shall be so used. But should such streets and alleys .cease to be used for such purposes the title and ownership to revert back to me and my heirs.
Witness my hand and seal this 16th day of June, 1884.
J. P. Smith (Seal)

Properly acknowledged and recorded.

And the following is a copy of the plat filed’:

■ The land in suit is described as follows:

“Begin at a point forty-two feet and four inches west of the northwest corner of -Lot Eight, Block Four, of Smith’s Addition to the city of Laddonia, in Au-drain county, Missouri, and run thence east forty-two feet and four inches to the northwest corner of said Lot Eight, then run south to the southwest corner of Lot Five of said Block Four of said Smith’s Addition, then run west forty-one feet and three inches, thence run north to the point of beginning.”

It is practically conceded that one J. P. Smith owned the land in- controversy, together with other adjoining lands, and that on the 16th day of June, 1884, he'laid out and platted Smith’s Addition to the city of Laddonia and dedicated the streets and alleys described therein to the city, one of which, as previously stated, was Western avenue; and the defendant purchased all of Block Four in said addition from Yerdia Bowman, as stated in the deed, ‘ ‘ according to the recorded plat thereof.”

The land in suit lies immediately west of and adjoining defendant’s said Block Four, and he claims, it as a part of his block, and the city claims it as a part of said Western avenue.

Upon this state of facts this case must be disposed of.

I. I have set forth the description of Smith’s Addition to the city of Laddonia, and the plat accompanying it in Jiaec verba, as appears from the record filed in this court.

By drawing a plat of section 35, township 52, range 7, of Audrain county, Missouri (which I have here done, viz.:)

and then attempting to locate the plat of the addition thereon, it will be discovered at a glance that it is an impossibility, for the reason that no definite starting point is given in the description of the addition, nor does the plait accompanying it lend any assistance thereto.

The description is: “Begin at the quarter section corner on the east side of section thirty-five, township fifty-two, range seven,” etc.

To what quarter section corner does that language refer, the northeast, corner of the northeast quarter, the southeast corner of the same quarter or the southeast corner of the southeast quarter of said section1? No one, be he man, surveyor or the judge of a court, can answer that question, because it may refer to any one of the three corners mentioned.

With that omission in the description of the addition we have nothing before us except the plat proper to indicate the land in controversy; and that plat definitely locates the avenne in question, as well as the property of the defendant’s Block Four, and according to that plat, clearly the strip of land in question belongs to the city, for the reason that section 6573, Bevised Statutes 1879, now section 10294, Bevised Statutes 1909, the statute under which the addition was laid out and platted and the.streets and alleys were dedicated to public use, required all such additions and plats to be laid out and platted, showing the lots, blocks, streets and alleys, etc., and to be acknowledged and recorded as deeds conveying real estate are required to be acknowledged and recorded, and that when .such additions are so laid out, platted, acknowledged and recorded the title to the streets and alleys described therein shall by those acts become the prop-arty of the city in fee, to be held by it in trust for the public.

This statute has been before this court for consideration so frequently that it would be hard for me to add anything new to the observations of the learned judges who wrote the opinions therein; and for that reason it will suffice to quote briefly from one or two of those cases and cite a few more.

In the case of Brown v. City of Carthage, 128 Mo. 10, l. c. 17, the court used this language:

“We do not think that the reservation, in the plat, of the ‘trees and rocks’ on the surface of the streets and alleys impairs the force and effect of the plat as an absolute statutory dedication for the purpose contemplated by the statute, and in this State, as in many others, a valid statutory dedication operates to vest the fee and dispenses with the necessity of an acceptance on the part of the public. [G. S. 1865, sec. 8, chap. 44; R. S. 1889, sec. 7313; Elliott on Roads & Streets, 87; Buschmann v. St. Louis, 121 Mo. 523; California v. Howard, 78 Mo. 88; Reid v. Board of Education, 73 Mo. 295.] After such a dedication, neither the dedicators, nor anyone claiming under them could change, the boundaries of the streets and-alleys.”

And in the case of Railroad v. Baker, 183 Mo. 312, l. c. 322, the court said:

“The execution and recording of the plat of the town of Osborn in 1858, was a dedication of the parallelogram thereon marked, ‘Eeserved for Depot. Grounds,’ to the Hannibal & St. Joseph Eailroad Company for railroad purposes. The use of the land for depot grounds is an appropriation of the land to a public use, within the meaning of the Constitution and the statute, [Sec. 14, art. 12, Constitution; Sec. 4270, R. S. 1899; Railroad v. Railroad, 108 Mo. 298; Thompson v. Railroad, 110 Mo. l. c. 160; Railroad v. Totman, 149 Mo. 657; Railroad v. Smith, 170 Mo. 327; Railroad v. Mining Company, 161 Mo. l. c. 309.]

‘ ‘ The designation of the parallelogram on the plat of the town as ‘Eeserved for Depot Grounds’ constistituted a dedication of the property to that public use, and was expressly authorized by section 8 of chapter 158, Eevised Statutes 1855. [Rutherford v. Taylor, 38 Mo. 315; Price v. Breckenridge, 92 Mo. 378; s. c., 77 Mo. 447; Hannibal v. Draper, 36 Mo. 332; Reid v. Board of Education, 73 Mo. 295; Heitz v. St. Louis, 110 Mo. 618.] And the sale of lots by reference to such a plat constitutes it a good dedication, even if there had been an incomplete dedication by plat. [Buschmann v. St. Louis, 121 Mo. 523; Field v. Mark, 125 Mo. l. c. 515; Brown v. Carthage, 128 Mo. l. c. 17; Meiners v. St. Louis, 130 Mo. l. c. 284; Milling Co. v. Riley, 133 Mo. l. c. 584; Downend v. Kansas City, 156 Mo. 68; Railroad v. Gordon, 157 Mo. 81; Longworth v. Sedevic, 165 Mo. 221.]

“There is no doubt as to the right of a railroad to accept such a dedication. The act. creating it gave it the right so to do, and the law gives it such a right because it is for a public use. [Railroad v. Railroad, 108 Mo. 298; Railroad v. Mining Co., 161 Mo. l. c. 309.]”

There are many other eases to the same effect; among them are the following: Naylor v. Harrisonville, 207 Mo. 341; Buschmann v. St. Louis, 121 Mo. 523, l. c. 535; Hannibal v. Draper, 15 Mo. 634; Price v. City of Breckenridge, 77 Mo. 447; Hatton v. St. Louis, by Bond, J., 264 Mo. 634.

Under that statute and the. authorities mentioned there can be no doubt in my mind but what the fee to the property in controversy belongs to the plaintiff for the use of the public and it is entitled to a recovery in this case without that right is destroyed by the defense interposed by the defendant.

Moreover, in my opinion, that statute is both wise and just.

This court in effect has held in numerous cases of this character, that to ignore that statute where addi- ■ tions have been made to cities and laid out into lots, blocks, streets and alleys, and especially after the lots'had been improved by the owners and the streets used by them in connection therewith would result in great confusion, injustice and irreparable damage both to the city and to the property owners thereof; and for that reason the statute should be given full force and effect.

In the case of Whitehead v. Atchison, 136 Mo. 485, the court.not in exact terms, but almost so and in point of fact overruled the case of Whitehead v. Ragan, 106 Mo. 231, the principal case relied upon by counsel for defendants as a defense to this case, and in the discussion of this question on page 495, said:

"To announce and adhere to, as a fixed rule of law, without qualification, the proposition announced in the 106 Mo. when these same litigants were then before the court, ‘If the line between lots one and four' was located upon the land when surveyed and subdivided, and can now be ascertained and determined, that line will constitute the true division line between the lots [of the subdivision] though it conflicts with the description given in the plat,’ when the lots are sold by their lot number according to the subdivision plat, would be to involve the entire communities, of our cities (where in most instances all conveyances of property are made by lot number simply, with a reference to the recorded plats for locating the courses and distances of the boundaries) in confusion 'and doubt as to the stability and fixedness of their possession and rights.

“With such a rule of construction in force, the lot-owner would be in complete ignorance of his true boundaries — would practically be without line or compass. No amount of investigation or research on his part would necessarily lead to a correct determination of his lot lines. If the courses and distances as indicated on the plat of which his lot is a part, aró to be overturned, as in this case is sought by the hidden corners, or what is still worse by the testimony of the surveyor himself twenty odd years after the survey was made, that he established a line at a point thirty. or fifty feet from where he certifies on the plat made by himself that it was located, the lot owner can know nothing of his boundaries. Such, as above mentioned, was the character of facts to which resort was made to set aside the lot boundary as indicated on the plat, and they will serve in the extremity of their reach, to emphasize the danger of the rule recognizing the right to permit the possibility of that character of facts as testimony in this kind of a contest.

“Between the purchaser of a lot and one who promulgates a plat describing and defining the lots thereof, the purchaser will not be held at his peril to ascertain whether or not the plat agrees with the original survey of the land subdivided and platted; but he is justified in assuming that the plat is correct, and that the lot or lots purchased by him are of the dimensions, and bounded by tbe courses and distances as indicated on the plat, to which, for particulars, his deed must refer, when the lot number alone is given in the deed. Every prompting of fair dealing, as every consideration of equitable estoppel, operates to deny defendant the benefit of the alleged secret, hidden corner stones, to establish the lot line between lots one and four as, against the boundary indicated by the courses and distances named in the plat, as well as in the description in the deeds affecting said lots, referring to that instrument for particulars. The judgment of the circuit court will be affirmed. ’ ’

This rule is not only founded upon principle and authority but also upon justice and good morals. If is common knowledge independent of the statute before mentioned, that cities, towns and villages are laid out into lots, blocks, streets and alleys, and that public and private improvements are made thereon according to plats showing those facts, and that the citizens of the towns and cities have no authority whatever over the execution and acceptance of such maps and plats.

Those matters rest entirely with the parties who plat the ground and the authorities of the city whose duty it is to see that they conform to the law; and the people of the country have the right to rely upon the presumption that those matters were correctly and properly done, and especially should this be true where, as in this case, the land in controversy belonged to the same person, Mr. Smith, who laid out the addition and sold the lots and blocks according to the streets and alleys.

Both parties acquired their respective interests in this strip of ground, as well as all-of their interest, they had in the land embraced within said addition, either directly from Mr. Smith or through mesne conveyances from him, and in pursuance to and in conformity to the plat thereof, as expressly stated in their muniments of title, as previously shown.

This alone should and does effectually and permanently estop and debar defendant from claiming any interest whatever in the land in controversy. Of course I refer to an estoppel by deed, and not in pais.

This conclusion is supported by all of the authorities previously cited.

II. But independent of the conclusion announced in the previous paragraph of this opinion, it is manifest from the full face of the record that the defendant is not entitled to a judgment in this case according to his own theory of defense, which in his own language is stated as follows:

“1. When an authentic .plat of a subdivided tract of land is referred to in a deed conveying a subdivision of such tract, the plat becomes a part of the deed, but the particulars of the description in the plat are not conclusive as to the correctness of such description.

‘ ‘ 2. Where the line of the original survey can be ascertained and determined it will constitute the true line, although it conflicts with the description in the plat, and where the evidence of the location of the. original line is conflicting the question is for the jury. ’ ’

The position of the defendant, a,s stated in the first clause just quoted, practically concedes the plaintiff ’& right to a recovery in this case, unless that right has been overcome by the evidence introduced by.him in support qf the second clause, which is the real theory of his defense.

This defense must fail for the reason, as shown by the plat and description of Smith’s Addition to the city of Laddonia set forth in the first paragraph of this opinion, that the lines of the original survey of the subdivision were not shown, because- no starting point of the survey was given, nor does the plat throw any light upon the subject.

That being true, it is a physical impossibility to-show the location of the true lines of the survey, even though it should be conceded that the plat, as now fitted to the ground, is not located upon those lines.

Fxom the description given of Smith’s Addition, it must be located either in the no- dieast quarter of said section thirty-five or in the southeast quarter thereof, but which this record does not show; but be that as it may, the record affirmatively shows that both the plaintiff and defendant claim title to the land in controversy according to the actual location of the plat, and there is no competent evidence in this record to show whether that location is upon the true lines of the survey or not; and for that reason the defendant was not entitled to a recovery.

III.' But independent of what has heretofore been said, we are of the opinion that in a case like this, where both parties claim under the same plat, neither the law nor good policy permits either of them to dispute the lines of the survey as shown by the plat as actually located upon the land; and especially should this be true where the whole or a large part of the addition has been sold to various persons according to the actual location of the plat upon the land, and where the property and streets have been built upon and improved.

This is the clear ruling of this court in the .cases cited, except the case of Whitehead v. Ragan, supra, which, as before stated, has been so modified or overruled in the case of Whitehead v. Atchison, supra, that it is no longer an authority in a case of this character.

The case of McKinney v. Duane, 155 Mo. 287, cited by counsel for defendant, is not in point, for there the monuments were present and well known; but here, none is shown, and none in fact is shown to exist, except by parole evidence, which alone is not sufficient. [Clark v. McAtee, 227 Mo. 152; Carter v. Spracklin, 246 Mo. 116.]

IV. The question involved in this case is too important and far-reaching, either for good or evil, to rest unsettled, and for one I am now in favor of eliminating from the jurisprudence of this State forever, all of the evil that still lingers in the law regarding this matter, which said section 10294 was evidently designed to eradicate. In the administration of the law the courts have, at times, through inadvertence or oversight, overlooked said statute, and at other times have tried to harmonize it with the old rules of the common law regarding monuments, courses and distance governing the conveyance of rural property, when the two are as irreconcilable as are oil and water or good and evil, as is conclusively shown by the conflict mentioned in the cases before mentioned.

The old rules of courses, distances and monuments when concededly applicable to the conveyance of rural property — after conveyance made and the vendee has been placed in possession of the property by the vendor, and large and lasting improvements have been made and placed thereon — the courts of this and many, if not of all, other states, have not hesitated for one moment to suspend through the application of the doctrine of estoppel, in order to carry out the real intent and purpose of the parties and to mete out equity and justice between them and their privies in contract, blood and estate.

In many such cases that doctrine of estoppel has been applied to the conveyances of farms, to grants of rights of way for railroads, and even to the sale of city property.

Those cases are so numerous and familiar to the bench and bar that it would be a supererrogation of labor and a waste of space to cite them.

The courts in those cases work out through the principles of equity precisely what the Legislature evidently designed to accomplish hy the enactment of the statute in question. On'in other words, the frequent errors and the many mistakes made by surveyors and property owners in laying out towns and cities and additions thereto, fraught with the hundreds of incidental and irreparable evils thereof, were the causes that gave birth to that statute; and the evident design was that when such a plat had been executed and filed in conformity to the statute covering the land owned by the party making the addition and dedicating the streets and alleys indicated by the plat filed therewith, then the streets and alleys indicated by the plat as actually fitted to and laid out on the land, became vested absolutely in the town or city for the use of the public, and that is true whether the plat as actually located upon the ground by the owner, by the sale of lots or otherwise, conforms to the lines of the survey or not, and especially after lots have been sold by him according to the actual location of the plat.

Neither the public, the owners of the streets nor the purchasers of the lots are' so much interested in the question as to whether or not the plat conforms to the points of the compass or to the lines of the survey of sections and quarter sections, as they are in the certainty of the location of the lots and blocks and streets and alleys.

Monuments are easily removed or destroyed, and for that reason they frequently disappear; but additions to towns and cities, laid out into lots and blocks and streets and alleys, with buildings erected upon the former and the streets improved which is the very purpose of the addition, are not easily removed or destroyed. In the latter case, if a mistake is made of the true line of the street or of a lot or block, as a rule, it only affects the party or parties making it; but in the former, the city and every property owner in the addition is of necessity- affected thereby; and if that rule and not the statute is observed, each and all of them will be more or less damaged thereby.

Any other construction of the statute would practically nullify and destroy the highly remedial provisions thereof, and in case of a mistake as previously indicated, that entire part of the city, and all of the property owners therein, would be thrown into confusion and uselessly damaged more or less; and in many cases the damages would be irreparable.

"We are, therefore, of the opinion that the judgment should be reversed and the cause remanded to the circuit court for a new trial in conformity to the views herein expressed.

All concur; Blair, J., in result.


source: Caselaw Access Project

author: WOODSON, C. J.

license: Public Domain

text:
    THE STATE ex rel. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION.
    In Banc,
    June 29, 1915.
    •RAILROAD: Separate Demurrage and Team Track Storage Charges. A railroad company is entitled to make but one charge for demurrage and for team track storage. Having made the maximum demurrage charge allowed by sections 3111, 3112 and 3155, Revised Statutes 1909, it cannot make a further track storage charge for the use of its track space occupied by the cars in the yards during the same time for which the demur-rage charges are imposed and collected. Track storage is not a distinct and separate service from the service for which demurrage is charged. To permit a track storage charge and what the statute denominates “demurrage” would be to permit two charges for a single service.
    Appeal from Cole Circuit Court. — Hon. J. G. Slate, Judge.

      Affirmed.

      8. W. Moore, F'. H. Moore and J. M. Souby for appellant.
    (1) The prior provisions of the statutes relating to demurrage and fixing a maximum charge therefor were repealed by the Public Service Commission Act. R. S. 1909, secs. 3108-3118; Public Service Commission. Act, Laws 1913, p. 556; 36 Oyc. 1077, 1097; Board of Trade of Kansas City v. Railroad, 1 Mo. P. S. C. 600; State ex rel. v. Shields, 230 Mo. 91; State v. Crane, 202 Mo. 54. (2) The team track storage charges under consideration are not embraced within the term “demurrage” as used in the Missouri statutes fixing a maximum charge of one dollar per car per day therefor. 2 Hutchinson, Carriers (3 Ed.), sec. 832; Dixon v. Railroad, 110 Ga. 173; Murphy Bros. v. Railroad, 21 I. C. C. 176; Hay Exchange v. Railroad, 14 I. C. C. 178. (3) It was the duty of the commission in this case to find, whether or not the proposed charges were reasonable.and'to permit their establishment if found reasonable, even though it was of the opinion that the statute included such charges as these in the maximum fixed for demurrage. Public Service Commission Act, Laws 1913, p. 556.

      William G. Busby for respondent.
   WOODSON, C. J.

This is an appeal taken by the appellant from a judgment of the circuit court of Cole county, affirming an order of the respondent, the Public Service Commission, setting aside and cancelling a certain schedule of prices filed by the former with the latter to become effective October 26, 1913, fixing charges to be collected for what the appellant termed “Team Track Storage Charges at Kansas City, Missouri.”

There are no pleadings in- the ease.

The facts are few and not disputed, and are as follows:

The appellant, a railway company, engaged in transporting freight and passengers in and out of Kansas City, to various other points in the State and United States, did, on September 25, 1913, file with the respondent a certain schedule showing certain tariffs it proposed to establish and collect from all shippers of car lots of freight into or out of Kansas City, over its road, as team track storage charges, on cars from and after October 26, 1913.

The schedule was in the following words and figures:

“Team Track Storage Charges At Kansas City, Mo.

• “Cars held for loading, unloading, inspection, re-consignment or switching order, on team tracks within the switching limits of Kansas City, Missouri, will be subject to track storage charges as follows:

“Team Track Storage Charges (Sundays and holidays excepted).

“1. 'No charge will be made for the first forty - eight hours after car is placed on team track. (Time to be computed from first 7:00 a. m. after placement, and after the day on which notice has been sent).

“2. For next succeeding two days the charge will be one dollar per car per day or fraction thereof.

“3. For each succeeding day the charge will be two dollars per car per day or fraction thereof.

“4. The foreg’oing track storage charges are in addition to the regular car demurrage charges lawfully on file with the Interstate Commerce Commission and subject to the rules and provisions thereof relating to serving of notices and exemptions for detention through causes named therein. [Rule 8 of the. National Car Demurrage Rules.]”

Upon the filing of this schedule the commission made an order suspending the same “pending,” as stated in the order, “an investigation of the reasonableness of such charges, to be made by it on its own motion, for the reason that the charges were discriminatory, unreasonable and an innovation.”

This order was properly served upon the appellant, and a day was set by the commission for the appellant to appear and show cause, if any it had, why the order theretofore made suspending said schedule, should not be made perpetual.

Upon the day set for the hearing the appellant appeared before the commission and presented its claim of authority to put the schedule into force, and thereafter the respondent overruled appellant’s contention and made permanent the order theretofore made suspending the schedule of the proposed charges.

In due time the appellant filed its motion for a rehearing before the commission, which was very lengthy —the 25th ground thereof being as follows:

“That the commission had erroneously decided that it had no power to establish a rate in excess of the' statutory rate, notwithstanding the statutory rate is unreasonably low and although the commission found that the proposed charges were reasonable.”' Rehearing was denied by the commission.

The opinion of the commission is reported in 1 Mo. P. S. C. 594. [In re Team Track Storage.]

Upon the overruling of the motion for a rehearing, the .appellant carried the case to the circuit court by writ of certiorari, and, as previously stated, the circuit court sustained the action, of the commission in quashing the schedule, and the railway company duly appealed the cause to this court.

Whatever additional facts may be necessary to mention in disposing of the case, will be referred to in connection with the points discussed.

There are many legal propositions presented in this case, and ably discussed by learned counsel for the respective parties — some of which are of vast importance to common carriers of the country and to the public at large; and after a careful consideration of the entire record of the case I am fully convinced that a number of the most important propositions are not properly involved in this litigation, and that whatever might be said at this time regarding those matters would, in the very nature of the case, be obiter, binding upon no one, and befog the rights of all, should further litigation become necessary to adjudge the rights of all similarly situated.-

For the reason stated we will confine our observations to the single question propounded by the commission to the respondent, viz: By what authority do you propose to put in force the schedule of charges filed?

Without unnecessary preliminary statements, we will directly approach the controversy in hand, and dispose of it in the shortest possible manner, in order not to trespass upon the territory of the other propositions presented.

The position of the commission was that the service for which the appellant desired to make the “team track storage charge” was a part of and included in the service for which it was then charging and collecting “demurrage” under the provisions of sections 3108 to 3118 and 3155, Revised Stautes 1909, and that to permit this additional charge would simply be to authorise the company to increase the maximum demurrage charges provided for by said statutes for the performance of the same service for %vhich, as previously stated, it is already collecting demurrage charges; while upon the other hand the appellant takes the position that the ‘ ‘ track storage charges ’ ’ are proposed to be made for a service rendered, which is separate and distinct from that for which the demurrage charges are made. That is to say the “track storage charges” are for the use of the railroad track space occupied by the cars in the yards during the same time for which the demurrage charges are imposed, and collected.

The sections of the statutes before mentioned provide that railway companies shall furnish freight cars for shippers, how the freight shall be received and forwarded, the giving cf notice to the consignee of the arrival of the freight at its destination, the mode or manner of delivering freight, team tracks, the time for loading and unloading freight, time for unloading cars after notice given to consignees of the arrival of the cars, storage charges on goods remaining in depots over, forty-eight hours, suits, damages and attorney’s fees, rules and regulations, duties of the railroad commissioners, schedules of storage charges and the time and place for unloading cars, etc.

The first question to be determined is, what are team tracks and demurrage charges, within the meaning-of said statutes'?

In so far as section 3111 is material, it reads as-follows:

“Railroad companies shall deliver freight at their depots or warehouses,' or in case of shipment for track delivery, shall place loaded cars at an accessible place for unloading within twenty-four hours after arrival, computing from seven o’clock a. m. of the day following arrival of the same, Sundays and holidays excepted; except that carload shipments for track delivery at local stations having not more than one- team track shall be placed at an accessible point for unloading within twelve hours after the arrival of said car. The railroad company shall forfeit and pay to the shipper or consignee one dollar per car per day for each day or fraction such delivery is delayed and all actual damages sustained thereby. ’ ’

From the language of this statute it is observed that- it is made the duty of the respondent to furnish team tracks for the use of consignees of freight, where the freight is not to be unloaded at a depot or warehouse.

Section 3112, regarding the same subject, reads as follows:

“Shippers or consignees on whose order a car or cars of less than sixty thousand pounds capacity have been placed for loading or unloading, shall have forty-eight hours for loading or unloading such cars, and seventy-two hours for loading or unloading those of sixty thousand pounds or greater capacity, computing time from first seven o’clock a. m. after such car or cars have been placed, subject to such order, and thereafter a demurrage charge, of not more than one dollar per car per day, or fraction of a day, may be assessed and collected on all such cars, respectively, as have not been tendered to the railroad company, with shipping instructions for loaded cars, within said respective periods of forty-eight and seventy-two hours of free time: Provided, however, should such shipper or consignee fail to begin loading or unloading within forty-eight hours after the expiration of free time, the railroad company may consider the empty car or cars released, and may assess and collect on every car, loaded or empty, one dollar, covering the demurrage then due; and railroad companies shall not be compelled to-furnish cars for future shipments to persons in default as to the payment of the demurrage charges herein provided for until such demurrage charges shall have been paid; and provided further, that when, in filling orders for cars, or in the transportation or delivery of freight, cars are bunched in excess of the capacity of the shipper to load, as indicated in his application or of the consignee to unload, such shipper or consignee shall have separate and distinct periods of free time in which to load or unload, as the case may be, the car or cars specified in each separate application, or in each bill of lading or way bill of different dates.”

This statute provides that the shipper shall pay to the railway company a demurrage charge of not more than one dollar per day, or a fractional part thereof, for his delay in unloading the freight from the.car beyond forty-eight hours after the car has been placed upon the track for unloading, etc.

This statute must be read in connection with section 3111 and when so read it is seen that the delivery of the car to the shipper or to the person to whom the shipment wTas made contemplates the performance of two services by the company, namely, (1) to move the car which contains the freight, and (2) to furnish a team track, etc., upon which the car must be placed for unloading, but if the company have but one team track, then it may place the car at. some other convenient point for unloading.

For the performance of these two services the statutes quoted plainly provide that the company may charge a demurrage of one dollar per day or fraction thereof, after the expiration of forty-eight hours on all cars of less tlian 60,000 pounds capacity, and after the expiration of seventy-two hours on all cars having; a greater capacity.

Section 3155 is to the same effect. It relates to grain only, and provides that the cars shall be put in place on the track, and that the consignee shall have forty-eight hours free of expense, after notice of the placing of the car, in which-to remove the grain from the cars.

Now, by reading the schedule of rates filed by the respondent with the commission, it will be seen that they purport to be in compensation for the use of the track upon which the car stands, and cover the same period of time for which the demurrage is assessed and collected.

It seems to me that the language of these statutes is so plain and unambiguous that there is no room for doubt as to their meaning. In express terms they provide for the railroad company to place the car upon the team track, and that if not unloaded within the time stated, then the company might collect a demurrage of one dollar per day, until unloaded.

There is no room left for construction, for the statutes mention both the car and the track upon which the car is to be placed, and authorizes a charge of one dollar per day for both, called the demurrage.

But suppose the statute did not mention the track at all, as is true in section 3111, where the company has but one team track.

In that case the statute provides that the company • shall place the car “at an accessible point for unloading within twelve hours after the arrival of said car.” "While not expressed, yet the clear meaning of the statute in such cases is that the company and not the consignee of the freight must furnish said place. As a rule the consignee has no place of his own upon which to place a car, and even if he had, he "would have no right to move a car from the company’s track to his private property. So the conclusion is irresistible that it was the intention of the legislature to require the company to furnish the car and the track, and to place the car upon the track for which it is entitled to charge a demurrage after a time stated; and that is true whether the track was mentioned or not, for the reason that cars are designed to and do move and stand upon tracks when in use, and nowhere else.

The track upon which the car stands while being unloaded is just as much a part of the service furnished by the company in unloading it as are its tracks extending across the country a part of the service it furnishes for the public in the transportation of freight and passengers from one point to another; and a railway company would have no more authority to charge an extra cent per mile over and above the maximum passenger rates for the use of the track in transporting passengers from one place to another than it has to charge an extra sum over and above the maximum de- . murrage for the use of the track upon which the ear stands, while it is being unloaded.

It might as well be said that where one person rents a house to another for a stated rent, thereafter the landlord can collect rent for the ground upon which the house stands.

No court would listen to such a proposition for a moment, for the reason that the house could not be used without the ground upon which it stands; nor can a car be unloaded without the use of the track upon which the company has placed it, and the demurrage of the one covers the use of both, just as the rent of the house covers the use of the land upon which it stands.

It follows from these observations that the respondent is not entitled to collect the charges mentioned in the schedule filed by it with the Public Service ■Commission.

That was the only proposition presented by the respondent to the commission, and that was the only matter the latter denied the former, and for that reason no other question will be discussed or decided.

Finding no error in the record, the judgment is affirmed.

All concur.


author: FARIS, J.

text:
    THE STATE v. VIC GUERRINGER, Appellant.
    In Banc,
    June 29, 1915.
    1. MOTION FOR NEW TRIAL: No Opportunity to File: Due Process of Law. If a convicted defendant bad no opportunity to file a motion for a new trial, owing to the expiration of the term immediately upon the return of the verdict, it would be to deny to him his constitutional rights to due process of law and equal protection of the laws, to deny him an appeal on the sole ground that his motion was not filed during the term.
    2. -: Adjournment Fifteen Minutes After Verdict: Fair Trial. Where the term lapsed hy statutory limitations in.fifteen minutes after a verdict of guilty was brought in at 11:45 Saturday night, and for that reason no motion for a new trial could be filed during the term, a new trial ought to be awarded on the ground that defendant is entitled to a fair trial.
    3. -: -: -: Act of 1913. And force is added to this view hy the fact that if the Act of 1913, Laws 1913, pp. 217 and 218, passed with an emergency clause twenty-one days before the jury brought in their midnight verdict .on the last day of the term, had been followed by the court, the existing statute (Sec. 5285, R. S. 1909) would not have operated to deny him the opportunity to file his motion in time.
    4. RAPE: Unfair Trial. However beastly and indecent the evidence may show defendant to be, he is nevertheless entitled to a fair trial; and that means that testimony of res inter alios acta and arguments by counsel to the jury entirely outside the record should not be allowed.
    5. -: Sodomy. Rape is a capital offense, but sodomy upon a woman is not.
    Appeal from Jackson Criminal Court. — Eon. Ralph S. Latshaw, Judge.
    Reversed and demanded.

      Lloyd Marts and Handy <$> Swearingen for appellant.
    (1) The court erred in overruling defendant’s motion for new trial. State v. Dalton, 106 Mo. 468; State v. Wellman, 253 Mo. 312; State v. Brown, 206 Mo. 502. (2) Error was committed by the prosecuting attorney and his assistant in their argument to the jury which whs highly improper and prejudicial to the rights of defendant. State v. Spivey, 191 Mo. 112; State v. Wellman, 253 Mo. 319; State v. Hess, 240 Mo. 160; State v. Baker, 246 Mo. 376.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.

      (1) The time within which a motion for a new trial may be filed in mandatory. Secs. 5234, 2025', R. S. 1909; State v. Brooks, 92 Mo. 542; State v. Dusenberry, 112 Mo. 277; State v. Maddox, 153 Mo. 471; State v. Arnold, 54 Mó. App. 6G0; Brooks v. State, 124 U. S. 394; State v. Hunt, 141 Mo. 626; State v. Thomas, 232 Mo. 216; State v. Brown, 206 Mo. 501; State v. Fawcett, 212 Mo. 729. (2) Motion for a new trial must be filed before the end of the term at which the verdict was rendered. Secs. 2025, 5285, R. S. 1909; State v. Fawcett, 212 Mo. 729; Haney v. Heirs, 18 Mo. 467; Dauforth v. Lowe, 53 Mo. 217; Childs v. Railroad, 117 Mo, 414; State ex rel. v. Harper, 56 Mo. App. 611; Orvis v. Elliott, 65 Mo. App. 96; Hecht v. Hieman, 81 Mo. App. 370; Maloney v. Railroad, 122 Mo. 106; State v. Riley, 228 Mo. 431. (3) It must appear from the record proper that the motion for a new trial was timely filed. Flanagan Mill Co. v. St. Louis, 222 Mo. 308; Pennowfsky v.Coerver, 205 Mo. 136; Harding w. Bedall, 202 Mo. 631; Keaton v. Weber, 233 Mo. 693; State v Scobee, 255 Mo. 272. (4) A record of conviction cannot be reviewed in the absence of a motion for a new trial. State v. Burdett, 145 Mo. 674; State v. Maddox, 153 Mo. 471; State v. Kimmons, 124 Mo. App. 498; Taylor v. Brotherhood R. T., 106 Mo. App. 212; Strauss v. St. Louis T. Co., 102 Mo. App. 644; State v. Roberts, 219 Mo. 720; State v. Fraser, 220 Mo. 34. (5) A motion for a new trial filed within four days after verdict rendered and in term time but after judgment entered without exception, only the record proper is reviewahle on appeal. State v. Riley, 228 Mo. 431; State v. Kile, 231 'Mo. 50; State v. Standley, 232 Mo. 23; State v. Clinkenbeard, 232 Mo. 539. (6) The court is without jurisdiction to pass upon a motion for a new trial filed out of time. State v. Brown, 206 Mo. 501; State v. Fawcett, 212 Mo. 729. (7) Errors committed in the trial of a case are not reviewable on appeal unless called to the attention of the court in a motion for a new trial. State v. Knowles, 184 Mo. 141; State v. Miles, 199 Mo. 530; State v. Yandell, 201 Mo. 646; State v. Stark, 202 Mo. 210; State v. Smith, 203-Mo. 695; State v. Bran-nan, 206 Mo. 636; State v. Harris, 245 Mo. 445; State v. Ckissell, 345 Mo. 549. (8) Courts will take judicial notice of the beginning of a term of court but not its ending. State v. Bodall, 202 Mo. 625; Walker v. Fritz, 166 Mo. App. 318. (9) The terms of the criminal court of Jackson county in Kansas City shall begin on the first Mondays of January, April and September. Sec. 4214, R. S. 1909. (10) Under the common law as adopted in Missouri there was no appeal or writ of error by right, and where an appeal exists it is purely statutory and must be strictly complied with. Sec. 8047, R. S. 1909; Bishop’s New Grim. Prac., sec. 1352; State v. Thayer, 158 Mo. 53; State v. Merich, 245 Mo. 548; State v. Virron, 164 Mo. App. 212; State v. Short, 250 Mo. 333.
   FARIS, J.

Defendant, convicted in division one of the criminal court of Jackson county of rape and his -punishment fixed at death, has appealed. He was jointly charged with Oscar Harrison and others, but a severance was -granted to the several co-indictees, and they were separately tried.

The case of Oscar Harrison came to this court on appeal, as did likewise the case of one Maurice Lewkowitz, who it seems was separately indicted, but who was present at the identical time, act and place, taking part in all of the matters and things which it is charged defendant participated in. The facts of the alleged rape as the evidence shows them to be, are unutterably bestial and indecent. They are set forth in full in the case of State v. Harrison, 263 Mo. 642, and in the case of State v. Lewkowitz, 265 Mo. 613. The student of criminology and of the law and the morbidly curious may read them there. They have no necessary place here in the view we take of this case and we need not cumber the books more with their abysmally filthy and disgusting details.

The trial began on March 31, 1914, which seems to have fallen upon a Tuesday. It continued on trial for five days. When the usual adjourning hour came on Saturday afternoon, April 4, it was not yet finished. A night session was held and the case went to the jury, it would appear, late Saturday night. The jury came in with their verdict at the hour of 11:45 p. m. of said Saturday night, which was the last juridical day of the January term, 1914; for by statute the April term began on Monday, April 6, 1914. The learned trial judge received the verdict when it came in.. Whether he adjourned court then at once, or merely quit till Monday, the record does not show; but the record does show that he opened his division of the criminal court on Monday, April 6, 1914, in the April term, which term we judicially notice began on that day. The motion for a new trial herein was filed on April 9, 1914, but the court nevertheless considered it and it was treated in all procedural ways and manners as if the entire case had been in fact tried at the April term, 1914, instead of at the January term, 1914, as the fact was.

Was this motion untimely filed so as to preclude our review? If it was and without fault of defendant,, is he for that entitled to a new trial? These are the points now vexing us. To their further elaboration and consideration the below brief discussion will be devoted.

OPINION.

■ I. Upon the threshold we are met by the above forecasted and most serious contention on the part of the State. This is, to-wit, that since the motion for a new trial was not filed till four days after ^ en(j 0f fiie term at wliiefi the case was tried and the verdict rendered, we cannot consider such motion for any purpose. And since if the motion for a new trial and the exceptions saved to the overruling thereof are out of the case all of the matters and things set forth in the bill of exceptions are likewise out of it, and we are relegated for error to the record proper only. There seems to be no error in the record proper. If then the State is right in this contention, there' is no question but we must affirm the case.

There is no dispute (but on the contrary it is admitted) that the jury came in with their verdict fifteen minutes before midnight, to-wit, at the hour of 11:45 p. m., of Saturday, April 4, 1914; the same being the last fifteen minutes of the last hour of the last day of the January term of the criminal court of Jackson county. There was then left, by statutory limitation but fifteen minutes of secular time — for we exclude the Sabbath, which is dies non — till the end of the January term and the beginning of the April term of said court. [Sec. 4214, R. S. 1909.] Views of sane men who know any law at all will not differ as to the fact that fifteen minutes is not sufficient time within which to prepare and file a motion for a new trial in a case which it took five days to try and wherein the record consists of 737 pages. Even in the face of such a hardship as this does the statute when viewed in the light of the history of its enaction and amendment, allowr a motion for a new trial to be filed after the end of the term at which the case was tried and the verdict rendered. If it. cannot be filed then, and thus without defendant’s fault,' the circumstances preclude its being sooner filed, shall' defendant lose his statutory right to appellate review? This in the last analysis is the concrete question confronting us. The statute reads thus:

“Sec. 5285. The motion, for a new trial shall he. in writing, and must set forth the grounds or causes therefor, ■ and be filed before judgment and within four days after the return of the verdict or finding of the court, if the term shall so long continue; and if not, then before the end of the term, and shall he heard and determined in the same manner as motions for new trials in civil cases.”

The part of this section which we have italicized was added in 1909. [Laws 1909, p. 461.] Prior to the amending of this section and on July 13, 1907, this court had decided the case of State v. Brown, 206 Mo. 501, wherein the facts were that defendant Brown was found guilty in the criminal court of Buchanan county of murder in the first degree and his punishment fixed at death. The regular judge being disqualified, a special judge sat to try the case. The verdict in the case came in late one night — between nine and ten o’clock — and on the following morning the regular judge took the bench and upon being erroneously informed that defendant did not desire to take steps toward an appeal, adjourned the ¡court till court in course. At the next regular term of the Buchanan Criminal Court, which convened seven days after the coming in of the verdict of guilty, defendant filed his motion for a new trial and thereafter proceeded duly to appeal to this court. It was held: (1) that the court below had no power to consider or pass on defendant’s motion for a new trial, since it was filed out of time; (2) but that defendant nevertheless had the right to have the rulings of the trial court reviewed here on appeal; (3) and that defendant could not be deprived of his right to the solemn opinion of this court thereon, no laches being shown upon his, or upon his counsel’s, part.

Whether the ruling in the Brown case furnished the reason for the amendment of 1909 noted above, we need not inquire. If it did, it yet in nowise served to change the general rule. For it is ruled in the Brown case that the motion for a new trial was untimely filed and therefore the circuit judge had no right in law to consider such motion for any purpose. So far then as the general principle involved is concerned the law to-day is the same as it was when the Brown case was ruled. This is so, because the amendment of 1909 above noted simply served to limit expressly the time of filing a motion for a new trial to the term at which the trial was had. Prior to that ‘ ‘ an absurd law incapable of being intelligibly enforced” (Bingham v. Birmingham, 103 Mo. l. c. 352) had in practice (except in rare eases) served so to limit it. This for the reason that even if defendant could have taken the full time of four days in vacation after adjournment to file his motion, such filing was ordinarily impossible in practice (barring the exception referred to above, where one term runs into another); because such motion must be filed in term time and not in vacation, for in vacation no one is sitting who is authorized to make orders touching such motion. That the instant case happens to fall among the exceptions detracts but little if at all from the force of the argument ; since we must write the law for the whole State and not alone for the two or three cities wherein only is the condition possible which arises from this exception. So, the amendment of 1909 in nowise added strength in the ordinary case to the procedural inhibition already existing, against filing a motion for a new trial in vacation after the lapse' of the term.

In the Brown case, as here in the instant case, the merits of the motion for a new trial seem to have been considered by the trial court. Notwithstanding this, we refused to consider them in that case, since such consideration was without warrant of law, then as now, and on-this point, and most appositely upon another, the learned judge who wrote the opinion of the court in that ease, said at page 507:

“It is true that the trial judge heard and considered the motion for new trial just as if it had been duly filed, and then overruled it, which he had no power to do, the motion not having been filed in term time. Nevertheless, the defendant had the right to have the ruling of the trial court reviewed on this appeal, which, for the reasons indicated, cannot be done.- Defendant cannot be deprived of his right to the solemn opinion of this court, after a full and careful consideration of all that may be said against the justness of the verdict, and it would be a reflection on the criminal jurisprudence of this country to affirm this judgment without first considering the defendant’s motion, no laches being shown upon his or his counsel’s part.

“Therefore, in view of the enormity of the crime of which the defendant was found -guilty, and the fearful consequence which must follow his conviction if suffered to stand, regardless of the evidence or of the facts (upon which we form or express no opinion), and in order that the defendant may not suffer any possible injustice, but be permitted to avail himself of every right which the law allows him, we reverse the judgment and remand the cause for further trial.”

II. Moreover, the Constitution guarantees to defendant that he shall not be deprived of his property, or his liberty, or his life without due process of law. [Sec. 30, art. 2, Constitution 1875.] If he had no opportunity to file a motion for a new trial, as we must concede he did not have, but notwithstanding this his life be taken, it will have been taken without due process of law. For while the right of appeal is not essential to due process of law (Reetz v. Michigan, 188 U. S. l. c. 508), yet if an appeal- be allowed to some persons and not to all persons similarly situated, such deprivation of the right to an appeal is equivalent to the denial of due process of law, for due-process of law and the equal protection of the laws are secured only when “the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.” [Duncan v. Missouri, 152 U. S. l. c. 382.]

Arguendo, but persuasive in this view for another reason, is the fact that just twenty-one days before the jury rendered this midnight verdict there was passed with an emergency clause an act designed to prevent in the trial of criminal cases the identical legal snarl now here confronting us. [Laws 1913, pp. 217 and 218.] Conceding that if this act be constitutionally valid (touching which we do not decide), yet if under the facts here by reason of the requirements that the causes to which it applied should be “pending trial;” that “the trial thereof shall be in actual progress,” and of others which the curious will note upon examination, it does not apply to, or aid the case as here made; nevertheless it would have applied, if the learned trial court had seen fit to follow its provisions at the usual hour of adjournment on Saturday afternoon, instead of proceeding with the trial to a conclusion and till the midnight hour. If this act does not offend the Constitution, a following of the letter or even the spirit of its provisions would have served to save the defendant from the serious predicament in which he now stands. The failure to order the sitting and rising of the court upon the trial of this ease in accordance with this statute, and the lapsing of the term by statutory limitation in fifteen minutes after the coming in of the verdict have served to deprive the defendant of the opportunity to have our opinion upon the merits of the case upon the question of whether he had a fair trial.

For the errors of the court in failing so to control its sittings and adjournment as to afford defendant a like opportunity with others similarly situated to have his appeal and to take the opinion of this court upon the question of the fairness of his conviction, a new trial ought to be awarded to him. Surely it is better that justice travel with leaden foot, rather than that she should walk rough-shod over the constitutional rights of citizens to be equal one with another before the law.

While the record is physically before us, yet by reason of the matters set out above it is not before us in such wise as will allow us to review it. And this condition arose as we see it without defendant’s fault. So, while we may not pass upon what the bill of exceptions contains, as the case must be retried we suggest that upon the next trial the testimony of the witness May, as to alleged statements of some unknown person to another not satisfactorily identified as the defendant, about an unknown subject-matter, ought not to be offered. There was not, in short, any sufficient identification either of the persons speaking, or of the matter about which they were speaking, even if the whole conversation heard by May was not, as seems highly probable, res inter alios acta and wholly inadmissible against defendant. [State v. Newcomb, 220 Mo. 54.] Neither in our view was sufficient time given defendant to prepare for trial, the enormity of the charge considered. A slight expense to Jackson county (and this was the excuse largely urged) ought not to be weighed in the scales against a man’s life. Likewise, the able and zealous representatives of the State who prosecute her pleas in this behalf, ought to be made to stay within the record in their arguments. Rarely have we read such able and eloquent arguments as were made in this case; but also rarely, if ever, have we read arguments which in .inflammatory eloquence travelled so far afield from the facts in the case. Once upon the trial we note the learned judge nisi threatened that unless counsel refrained from acts which failed to fully meet Ms approval and Ms ideas of court decorum, he would adjourn court. Such a course we would consider supererogatory so long as we do not entirely Mbble away by construction the efficacious provisions of sections 3881, 3882 and 3883, Revised Statutes 1909.

We conclude therefore that while the present development of the English language is inadequate to express the unspeakable bestiality of defendant’s conduct as the prosecuting witness details it (for if she speaks truth, he could well have been a teacher of indecency to the brutish lechers of Sodom and Gomorroh), yet if he be as guilty as she says he is, so much the more does he deserve a fair trial, lest the whip and scorn of our abhorrence shall drive us to mob Mm under the guise and empty shell of justice. If he had been fairly tried we do not tMnk that even under the proof of his abandoned beastliness the jury would, upon the partly uncorroborated word of a self-confessed adulteress have assessed against Mm, as they did, the extreme penalty of the law. For brutish bestiality is not a capital crime; sodomy is not capital; rape only of the acts proved is capital, and right-minded men and women have always and ordinarily will always justly weigh the degree of culpability in the scale of the victim’s chastity, regardless of the harsh rule of necessity which forbids us in law to draw any distinction between acts of rape on account of the victim’s lack of prior chastity. So we think the extreme penalty here assessed can be rationally accounted for only upon the view that the things we mention (and wMch we would characterize as the very gravest errors, if we could but reach them for review) largely contributed to it. To say that he is guilty and therefore it makes no difference how he was tried, begs the question, and is but an argument favoring the return to primitive justice, wMch first hangs and then investigates. If the latter method had met the demands of civilization (even though it be charged and this ease and these disjointed times partly prove that civilization is but skin-deep), it is probable that it would not have been abandoned for the present system, which among its necessary constituents requires a judiciary sworn to follow .the law and the Constitution.

Being mindful of this duty and being thoroughly convinced that to take the life of this man, upon this conviction, the condition of this record considered, would be to judicially mob him under the mere empty form of law, we reverse and remand the case for a new and a fair trial.

All concur.