author: LAMM, J.

text:
    CONSTANTINE S. CUMMINGS, Appellant, v. HERBERT L. PARKER et al.
    Division One,
    May 31, 1913.
    1. FRAUD: Proof. However hard to prove, fraud must still bo proved, and will not he permitted to rest on mere suspicion or conjecture.
    2. -: Selling Corporate Property. A sale by a hunting club corporation of its only remaining real estate, at a price in excess of its value, as a result of a meeting of its 26 living stockholders, including plaintiff, at which 23 voted for the sale, to another corporation whose stockholders were the same men except plaintiff, at a time when it could no longer lease a large body of land it had theretofore for twenty years used, in connection with said club house, for fishing and hunting by its members, and could obtain no other like land, being in pursuance of an apparent call of necessity, is free from all circumstances and indicia of actual fraud.
    3. --: -: Trustee: Rescission of Contract. Directors of a corporation stand in the relation of trustees to the corporate property; and when, on the complaint of a stockholder, the issue is whether a transaction between corporations having interlocked boards of directors should be avoided and profits therein accounted for, such dealings will be judicially eyed with jealousy and sternness to search out and correct lurking and covinous fraud; but that rule does not require that a sale of a corporation’s real estate, at a price in excess of its value, where everything was open and above-hoard, and made in apparent neces sity, should be avoided.

      4. -:---: All Properties: Unanimous Consent. The general doctrine of the law, guardedly put as subject to modification, that a corporation that is a going, concern, solvent and not pressed with debts, laboring under no vital distress, cannot during its charter life, without the unanimous consent of its stockholders, dispose of all its corporate property from which it derives its income and which forms the basis of its business operations, does not apply: first, where the complaining stockholder does not object to any sale, but to a sale to a certain other corporation and insists on a sale to a company of his own choosing; second, where the corporation is not,in fact a going concern, but, because of inability to renew leases necessary to its corporate purposes, faces a crippled condition; third. where the sale has been made, and it is impossible to restore the status quo, and it is not apparent that it can pay back the price received; and, fourth, where there is not bad faith, and its application would restrain the right of a majority of the stockholders to rule within the bounds of reasonable grounds.
    5. -:--: Selling to Seif: Rescission. Absent any actual fraud, a transaction between two corporations, whereby one sells its real estate to another, will not, on the complaint of a minority of non-consenting stockholders, be rescinded solely on the ground of unity in directors, or unity in the voting power of stockholders, or because of interlocked directorates. Although the two corporations have the same directors, and the stockholders of the one are almost unanimously the stockholders of the other, yet they are separate entities, separate juristic persons, and the vendor is not a person selling to himself within the usual meaning of the rule.
    Appeal from St. Charles Circuit Court. — Eon. James D. Barnett, Judge.
    Affirmed.

      M. McKeag for appellant.
    (1) Under the pleading and testimony, plaintiff’s interest was intentionally and fraudulently attempted to be disposed of by the directors of defendants, for their and their associates’ benefit and profit, in the Dardenne Shooting Club; that in mating this deed the result if it is permitted to stand, is to benefit these directors and their associates and injure the plaintiff. There is in this state of affairs palpable franc! in the transaction. Hopkins v. Williams, 58 Mo. 201; Thoronton v. Irwin, 43 Mo. 163; State ex rel. v. Boss, 118 Mo. 69; King v. Moon, 42 Mo. 551; Hawley v. Cramer, 4 Cowen, 717; Ward v. Davidson, 89 Mo. 445. (2) The directors of the Game and Pish Club were trustees and representatives of all of the stockholders, plaintiff included. How honestly and fairly they took care of Ms interest in this corporation, the testimony too plainly shows. It was their duty to preserve the property of this corporation for the uses and purposes for which it was purchased, for the minority, as well as the majority stockholders. They could not legally transfer its entire property, which formed the basis of the objects for which it was erected, to a corporation of which they were members and by which it resulted in their private gain without the consent of the plaintiff. Hannerty v. Theatre Co., 109 Mo. 310; Feld v. Investment Co., 123 Mo. 613; Hill v. Gould, 129 Mo. 106; Packet Co. v. Davidson, 95 Mo. 467; Bent v. Priest, 86 Mo. 475. (3) The conditions apparent from the testimony of the Dardenne Game and Pish Club called for the intervention of a court of equity and the appointment-of a receiver to wind it up under the statute made and provided to govern the dissolution of corporations. The defendants and their associates had it in their power to seek a legal remedy, the plaintiff lias not any remedy at law, the defendant directors are not the proper persons to wind it up, and the court ought to have appointed a receiver and directed Mm to proceed under the law and wind it up. Secs. 977-981, B. S. 1899; Soulard v. St. Louis, 36 Mo. 546; Grover v. Investment Co., 138 Mo. 408.
    Ferriss, Zumbalen dt- Ferriss for respondents
    (1) There was no evidence tending to show any actual fraud in the transaction. (2) The right and interest of the Game and Fish Club in and to the shooting grounds having terminated by the expiration of its lease thereon, it was competent for a majority of the stockholders to sell the remaining property, which had been acquired and used merely as an adjunct to the shooting grounds, notwithstanding the protest of the plaintiff. Tanner v. Railroad, 180 Mo. 1; 2 Cook on Corporations (5 Ed.), sec. 670, p. 1554; Bartholomew v. Rubber Co., 69 Conn. 521. (3) The sale having been authorized by a majority of the stockholders, at a stockholders’ meeting, is not constructively fraudulent by reason of the fact that the stockholders who voted for it were also members of the purchasing corporation. Nye v. Storer, 168 Mass. 53; Bjorngaard v. Bank, 49 Minn. 487; Steel Corporation v. Hodge, 64 N. ,7. Eq. 807; Alexander v. Williams, 14 Mo. App. 13; Kitchen v. Railroad, 69 Mo. 224; Bank v. Iron Co., 97 Mo. 38; Hill v. Gould, 129 Mo. 106; Butler v. Land & Mining Co., 139 Mo. 467; Oil Co. v. Marbury, 91 U. S. 587; Hill v. Nisbet, 100 Ind. 341; Copsey v. Bank, 133 Cal. 657; Rogers v. Railroad, 33 C. C. A. 517; Gamble v. Water Co., 123 N. Y. 91; Transportation Co. v. Beatty, 12 App. Cas. 589.
   LAMM, J.

This is a suit in.equity at the instance of a stockholder to set aside a conveyance made by one corporation to another and to appoint a receiver and wind up the affairs of the grantor corporation. From a judgment for defendants on the merits at a trial before Judge Barnett as chancellor in the St. Charles Circuit Court, after hearing plaintiff’s evidence alone, plaintiff appeals.

Two corporations are involved, one we will call Fish Club, the other Shooting Club — a certain Realty Company also figures in the record (whether it has stockholders or is incorporated is dark). The Realty Company is not sued, Fish and Shooting Clubs are parties defendant, the individual defendants are the directors of Fish and Shooting Clubs (the personnel of each directorate being the same). Plaintiff is a stockholder in Fish Club and is a “member” of Realty Comnany, but is not a stockholder in Shooting Club.

At a certain time in 1908, Fish Club made a conveyance of its club house on the banks of the Mississippi, with its appurtenances, to Shooting Club. It is of that conveyance plaintiff complains, fraud being the gravamen of his cause of action.

No assignment of error here calls for the reproduction of the pleadings, hence the case may proceed on appeal on the theory they were sufficient to permit the introduction of the evidence and grant relief, if fraud was approved.

On the facts, the case is this:

In 1888 one Gallagher owmecl, say, eighteen hundred acres of land and water in St. Charles county, which, we will assume, were likely for fishing and hunting. At that, time about thirty hunting and fishing gentlemen of St. Louis, including plaintiff, with an eye to that tract and presumably clubable men, took stock in and organized a corporation, named, the Dardenne Game and Fish Club, with a capital at the outset of $5000, divided into twenty-five shares, presently increased to $6000, divided into thirty shares, with the charter purposes following, to-wit: “To purchase, obtain, lease, own, control, sell or otherwise dispose of such tract or tracts of land, or spaces of water as might be suitable for wild or tame birds, game, animals and fish; also such licenses or privileges for hunting, shooting, fishing, catching or preserving such birds, game, animals and fish on suitable lands or waters; to stock such land and waters, and acquire and enjoy the product and profit thereof; to acquire, buy, build, lease and have, in connection with such lands and waters, houses, boats or other- appropriate conveyances and appliances; to keep and maintain a club house or club houses at the city of St. Louis or where said lands and waters may be, with all suitable sustenance, furniture and comforts for the use of the members thereof; and to control all of the property and business of the corporation by such by-laws, rules and regulations as it might adopt, or authorize the directors to adopt, including making of assessments for yearly dues, not to exceed $100 on each member for one year, with all powers conferred by law or incident thereto.”

Pursuant to those charter purposes Fish Club bought from Gallagher a little the rise of two acres of land adjacent to his 1800-acre tract, and at the same time leased from him the latter tract, or at least the exclusive hunting and fishing rights thereon, for a term of ten years. The fish was theirs and the game was theirs — provided they could take the one or shoot the other, a distinction with a difference, as shrewd observers have remarked. Fish Club paid $300 for the two acres and took a deed. By its lease it contracted to pay a rental on the Gallagher 1800-acre tract of $600 a year. Presently it built a club house and appurtenant out-buildings on the two acres at an outlay of, say, $3000, and became the owner of some boats and other fishing and hunting incidentals.

For the ten years next following, Fish Club kept and performed its lease with Gallagher, and as headquarters for its corporate purposes occupied its club house. At the end of its first term, the Gallagher lease was renewed for a like term with like conditions and the renewed lease was also kept and performed by Fish -Club. The second term expired in 1908, and at about that time Realty Company was born; whether (as said) it was a corporation issuing stock to its members or was some form of unincorporated voluntary association, we do not know. Neither its capital, purpose nor organization is disclosed. With some few exceptions, the members of this Realty Company (including plaintiff) were also stockholders of Fish Club. At or before the expiration of the term of said renewed lease, this Realty Company became owner in fee of said 1800-acre tract by purchase from its then owner. At about the same time the other corporate defendant, the Dardenne Shooting* Club, was organized. Its capital stock is not disclosed nor are its corporate purposes defined. But the case travels below and here on implied concessions that the latter ran on the lines of those of Fish Club. With a few exceptions (one of’ whom was plaintiff) it had the same stockholders.

Outside the testimony of the one witness, put on the stand by plaintiff, there was no oral testimony introduced. Read into the case, during the progress of this witness’s testimony, were certain instruments, to-wit, leases and deeds (the terms of which have been sufficiently stated already) and the proceedings of one stockholders’ meeting of Fish Club (of which more hereafter), together with the proceedings of its board of directors of a certain date.

The case on some phases was darkly developed. Doing the best we can with the record, we take the facts to be that at some time in the history of Fish Club, near the close of the renewed lease, a question arose what it should do with its two acres and its club house appurtenances. This in view of the fact that for reasons wholly dark Fish Club either could not, would not, or did not, get a renewal of the lease on its fishing and hunting preserves, now owned by Realty Company, and the question was (not whether it would sell at all, but) whether it would sell to Realty Company or to Shooting Club. It seems, too, that the Realty Company at some time let the fishing and hunting privileges on the 1800-acre tract to the Shooting Club. But when and why this was done are wholly left to conjecture. No attempt was made to enlighten us. It does appear that at said stockholders’ meeting of the. Fish Club plaintiff wanted the sale made to Realty Company and that the other members of Fish Club wanted it made to Shooting Club. This appears from a discussion at the stockholders’ meeting, faintly outlined in the minutes. Whether Realty Company would not let the preserves to Pish Club, but preferred to lease to Shooting Club, or whether Pish Club did not want to lease its old preserves from its new owner, Realty Company, is also left to conjecture only. There is not a ray of light thrown by the testimony on that question. (The witness introduced by plaintiff, Mr. Goddard, one of the defendants, said Pish Club could not get its lease renewed and the investigation stopped, plaintiff resting content at that point.) Why plaintiff was not a stockholder in the Shooting Club is also left to be guessed. Was it of choice or necessity, of whim or principle? All is dark.

The sequel was that Pish Club presently conveyed to Shooting Club for $4550. The evidence put in by plaintiff unmistakably shows that this price was in excess of the actual market value of the property. The method of getting at this price seems to have been to take the outstanding shares of stock in Pish Club, then 26, and multiply 26 by 175. It was shown, and remains uncontradicted, that $175 was the highest price Pish Club shares of stock about that time had sold at and it seems several transfers were made at that figure around that time. Pish Club was out of debt, its club house was in fair repair, but the premises, out-builclings and appurtenances were somewhat run down at the heel at the time of the sale. Before the conveyence was made, a meeting of the stockholders of Pish Club was duly called for the purpose of settling the question of a sale. That was the stockholders’ meeting hereinbefore referred .to, of which the record holds the minutes. Of the shareholders one or more were dead. Of the 26 remaining, 23, including plaintiff, voted and all but him voted to sell to Shooting Club. Plaintiff, as said, wanted to sell to Realty Company and opposed the sale ordered made. But he introduced no testimony tending to show that Eealty Company had either disposition or financial ability to buy, or was authorized by charter, if it had one, or by its articles of association, if it had any, to buy. Fish Club stockholders, having authorized the conveyance to be made, it was presently made in due form by further order of its board of directors and plaintiff, as said, sues to annul that conveyance, appoint a receiver and wind up the affairs of Fish Club. His bill was so drawn as to let other stockholders in at their choice, but none accepted the- invitation and came in.

In view of the shadows in the record, the following colloquy between court and counsel is of some value in getting at the theory of the trial chancellor in casting plaintiff, and his estimate of the evidence, to-wit:

“The Court: This, ease seems to me to take this position, gentlemen: the evidence shows that this Game & Fish Club was organized under the general law as a business corporation, but that it was substantially operated for the purposes of the pleasure of the members, in using this two or three acres that constituted the club grounds as a sort of headquarters, but using practically and mainly the eighteen hundred acres that was leased; that seemed to be the whole occupation. Now, the lease expires in October, 1908; that left the club with only the two or three acres, with the club house and houses, but substantially no ground over which they could hunt or fish—
“Mr. McKeag: The river was there.
“The Court: They had the river, yes; but the material ground they had before, by the expiration of the lease, was about to disappear from them. Now, in that condition the members, who made up practically the whole of this body, organized apparently two new corporations with some slight change of membership; one a Eealty Company; its purpose was not disclosed by the evidence at all, except apparently it became the owner of the land owned by Gallagher, and the Hunting Club or Shooting Club acquired, the right to use this land that had been before leased. Now that left the original Game & Fish Club simply stranded on this two acres of land which they owned. Now, it doesn’t seem to me that in that condition, in view of the evidence that’s here, this case has been made out. There’s no evidence of any fraudulent act as concerning this plaintiff; there’s no explanation whatever in this record as to why he was not a member of these various clubs. For anything that appears in this testimony he may have kept out of these other corporations for reasons of his own; he might have kept out for many reasons entirely proper; there’s nothing to indicate he was kept out in any fraudulent or improper manner; he simply didn’t belong. Here’s the Game & Fish Club, having property that by the records had apparently cost them originally some five or six thousand dollars, and that property was sold for $4500; the only evidence of .present value at all is the estimate of the single witness, who values the property at $3500; certainly it could not be held that under that evidence there could be any fraud whatever, so far as the immediate sale is concerned; the property brought its full value, so far as the evidence shows; certainly so close to its original cost that the difference would not be of sufficient importance to be considered as fraudulent in any view of the case; it seems to me that the plaintiff in this testimony has totally failed to make out a case.
“Mr. McKeag: Your Honor, fraud may be inferred from the very fact they sold to themselves; not necessary to prove fraud. . . .
“The Court: I think the rule as to the two corporations acting with the same substantial membership and same substantial directory is not a matter of express fraud in itself; that would be a very violent supposition, but at the most it would be simply, not an evidence of fraud, but simply a condition of affairs that would require the court to scrutinize the transactions with unusual care, but behind that, before a transaction when scrutinized could be condemned, it would have to appear that the transaction was either fraudulent in fact, or that the circumstances that surrounded it were fraudulent as to the particular individual, or unduly oppressive, but nothing of that kind appears in the record.
“Mr. McKeag: Does your Honor hold they can substantially wind up the corporation by disposing of all its property?
“The Court: This evidence simply shows they sold their land and other property for $4500; for anything the court knows they may take that $4500, and go further down the river and buy another place where they would have all the facilities they lost by reason of their inability to secure the lease; they may never dissolve the corporation; they may operate it.
“Mr. Zumbalen: They have a right to dissolve if they choose to.
“The Court: They can dissolve, but taking the evidence as it stands, there’s-nothing to prevent buying another club house.”

On this record, the decree stands for affirmance. Because:

(a) It is argued the case falls within the well settled doctrine that, even absent fraud or injury, an agent (without his principal’s consent) may n0-t gen to bimself directly or under cover, that a trustee may not sell to himself without the consent of his cestui que trust (and sometimes not with it), that a mortgagee or bailee with power of sale may not buy at his own sale. That doctrine is grounded on the wisdom of the past, is rooted in present sound public policy and may not be departed from. Its philosophy is nowhere more happily stated than by Chancellor 'Kent in the leading case of Davoue v. Fanning, 2 Johns. Ch. l. c. 259 et seq., thus:

“However innocent the purchase may be in the given case, it is poisonous in its consequences. The cestui que trust is not bound to prove, nor is the court bound to judge, that the trustee has made a bargain advantageous to himself. The fact may be so, and yet the .party not have it in his power, distinctly and clearly, to show it. There may be fraud, as Lord Haedwicke observed, and the party not able to prove it. It is to guard against this uncertainty and hazard of abuse, and to remove the trustee from temptation, that the rule does and will permit the cestui que trust to come, at his option, and without showing actual injury, and insist upon having the experiment of another sale. This is a remedy which goes deep, and touches the very root of the evil. It is one which appears to me, from the cases which have been already cited, and from those which are to follow, to be most conclusively established. ”

Further on (p. 269) borrowing with approval from a case in the English House of Lords, the chancellor continues:

“ . . . that the rule was founded in reason and nature, and prevailed wherever any well-regulated administration of justice was known; that the disability rested on the principle which dictated that a person cannot be both judge and party, and serve two masters; that he who is intrusted with the interest of others, cannot be allowed to make the business an object to himself, because, from the frailty of nature, one who has power will be too readily seized with the inclination to serve his own interest at the expense of those for whom he is intrusted; that the danger of temptation does, out of the mere necessity of the case, work a disqualification; nothing less than incapacity being able to shut the door against temptation, where the danger is imminent, and the security against discovery great; that the wise policy of the law had, there fore, put the sting of disability into the temptation, as a defensive weapon against the strength of the danger which lies in-the situation.; that the parts which the buyer and seller have to act, stand in direct opposition to each other in point of interest; and this conflict of interest is the rock, for shunning- which the disability has obtained its force, by making that person, who has the one part intrusted to him, capable of acting on the other side.”

The Davoue-Fanning case has been followed by this court (Thornton v. Irwin, 43 Mo. l. c. 163), and its doctrine finds application when the facts held in judgment warrant. [Bent v. Priest, 86 Mo. 475; Meek v. Hurst, 223 Mo. l. c. 698 et seq.; Montgomery v. Hundley, 205 Mo. l. c. 148 et seq.]

But I think the argument inapplicable to the facts. of our record. The rule is: The law of a case arises on the facts of the case. Ex facto jus oritur. For not only are the pleadings cast on the lines of fraud upon and injury to plaintiff, but the facts do not bring the case within the range of the strict unmodified general principle announced, as will presently appear. (Paragraph e, infra.

(h) Appellant’s counsel, to eke out and bolster up the evidence and sustain his appeal on the theory of fraud, invokes the doctrine of Hopkins to use of Williams v. Sievert, 58 Mo. 201, to-wit, that in pursuit of fraud direct evidence is not usually possible, hence is not necessary. That very slight circumstances, apparently trivial and unimportant standing each by itself, though gathered by a minute and wide search, when put together in natural sequence and relation may afford irrefragable proof of a fraudulent intent vitiating a transaction. That is a doctrine of this court finding much countenance and usually running hand in hand with a related proposition, viz., that, however hard to prove, fraud must still lie proved and may not rest on a bank of fog of mere suspicion or conjecture. That the presumption is against fraud. [Troll v. Spencer, 238 Mo. l. c. 101-2.]

The case at bar is barren of fraud, and free from all circumstances, indicia or earmarks of it. The same may be said of arbitrariness and oppression which are thinly separated from fraud, if at all. So far as can be seen on the record here, nothing was hid in a corner, everything was open and above-board, the sale followed an apparent call of necessity, or good policy, and the actual consideration was in excess of real value. The trial chancellor so found and we agree with him.

Indeed, we own to being a little inclined to take judicial notice that, barring a mild and (it may be) innocuous form of exaggeration in narrating personal exploits (noticed by close observers and slyly commented on now and then in private discourse), neither huntsmen nor fishermen are addicted to the venal vice of fraud for gain in matters pertaining to their associated dealings. It was Jacob, mark you, and Rebekah, not Esau, the hunter, who covinously contrived a notable property fraud (q. v.). And when Simon Peter (worried by trouble and despair) saith, “I go a fishing,” and the others said, “We also go with thee,” did they not touch a chord and set it vibrating to this very day in many a wholesome bosom? Did not the immortal Izaak Walton say — but, under a spell of gentle memories, we may be straying just a little afield — revenons a nos moutons.

The appeal cannot prosper on the theory of fraud and consequent injury.

(c) It is uniformly held that directors of corporations stand in the relation of trustees to the corporate property. Plence when the issue on trial on complaint of a shareholder is whether a transaction should be avoided or profits accounted for in dealings between corporations having interlocked boards of directors, or in dealings with such, directors anent corporate property, such dealings will be judicially eyed with jealousy and sternness to search out and correct lurking mischief. Hill v. Gould, 129 Mo. 106; Keokuk, etc., Packet Co. v. Davidson, 95 Mo. 467; Hannerty v. Standard Theatre Company, 109 Mo. 297; Feld v. Roanoke Investment Co., 123 Mo. 603, are samples of cases marshaled by plaintiff’s industrious counsel and illustrating or applying that doctrine. It is argued that the" decree in the instant case is impugned by it and must be reversed. But applying the rule of caution and jealousy, this appeal does hot prosper on such theory on the facts we are dealing with, under the ruling made in paragraph b.

(d) There is a general doctrine of the law, guardedly put as subject to modification, that a corporation that is a going concern, solvent and not Pressed by debts it has no ready means to pay, laboring under no vital distress in its corporate life, may not during its charter life, without the unanimous consent of its stockholders, dispose of all its corporate property from which it derives its emoluments and which forms the basis of its business operations- and thereby incapacitate itself from going on. [2 Cook’s Corporations (6 Ed.), sec. 670; Feld v. Roanoke Investment Co., 123 Mo. l. c. 613.] Appellant invokes that doctrine to avoid the deed of Fish Club to Shooting Club, in the absence of fraud.

But this is not a case to apply a hard-and-fast general rule of that sort, because:

(1) In the first place, plaintiff did not plant himself in the stockholders’ meeting on the platform of no sale at all. Contra, he recognized the wisdom of a sale, but wanted it made to Realty Company and not to Shooting Club. "We find fault with his choice of a vendee, but when he now veers about and seeks to rip up the executed transaction on the theory that, in existing conditions, no sale should have been made at all, does not such chang’e of front smack of disingenuousness and does it appeal strongly to equity?

(2) In the next place, the corporate status of Pish Club, crippled as it was by the loss of its preserves, and facing a diseased and languishing corporate life in consequence, did not fall within the reason of the rule applicable to a going concern.

In aid of the ruling just made, it is not amiss to point to the allegations and prayer of plaintiff’s bill relating to a receivership. Those indicate that, in the mind of plaintiff himself, a crisis had arisen in the corporate life of Pish Club, which made it impracticable to carry on its affairs as designated at its birth, and that events had ridden so fast and far as to call for a receivership for, and winding up of, the corporation. That view of it does not run on all-fours with the theory of “a going concern.”

(3) Again: In such a case as this rescission does not go as of course. It goes on equitable principles, if at all, and equity must be done, if possible, as the price of the decree. This record does not disclose how the status quo cmte helium may be restored. Certainly Pish Club cannot in this' suit get back its preserves without which its club facilities would amount to little. (I say “little” not unmindful of their chance to meet and reminisce, using their rods, as did the broken soldier his crutch in the deserted village, to show how fish were won.) Nor is it apparent that it is able to pay back the price received, which it may or may not now have in its treasury. Nor does plaintiff’s bill run on the theory of doing equity as the price of a decree in his favor. Nor is it sought to avoid the lease from Realty Company (which is not a party defendant) to Shooting Club (which is).

(4) Finally, the general rule in hand has received an exposition by this court, that, if applied here as it must be, goes a long ways towards affirming the decree. Speaking thereto in Tanner v. Lindell Railway Co., 180 Mo. l. c. 17-18, this court said:

“That is a principle of law founded in justice and is applied to protect the weak against the strong— when the weak is right and the strong is wrong — it is applied to prevent or relieve against an unjust abuse of the power of the majority. It is not an unqualified rule of law. None of the authorities cited say that a sale of all the property of a corporation pursuant to a resolution of a majority of its members is void. They all recognize that the majority in interest have the right to rule within reasonable bounds and that whilst they have no right, arbitrarily or oppressively, to close out a corporation for their own advantage yet they are not. compelled to continue an unprofitable business or to pay the minority more than their stock is worth for the privilege of closing it up. The principle invoked by the plaintiffs is wise and just, but, since it is liable to abuse, its wisdom and justice are seen only in its application-to the facts of the given case. It is, as before said, designed for the protection of the minority, but like some other equitable principles it is to be used as a shield, not as a sword. When, therefore, the principle is invoked in a court of equity, the case turns on a question-of remedy, the court applies the law ex aequo et bono, with due regard to the rights of the plaintiff and also with due regard to the rights of the defendants and others whose interests may have become involved. Because all the stockholders have not consented to the sale it does not follow that the sale will be set aside regardless of the consequences. Sometimes when the act is stained with bad faith and only those who are guilty of the wrong are to be affected, the court will set aside the sale and restore the conditions as they were before. [Abbot v. American Hard Rubber Co., 33 Barb. 578.] And sometimes, when the plaintiff is prompt, the court will enjoin the sale. [Zabriskie v. Railroad, 18 N. J. Eq. 178.]”

The Tanner case has been followed. It was on its authority that a late case, Johnson v. United Railways, 227 Mo. 423, was ruled.

(e) In the case at bar there was no fraud, as already held. Neither are creditors complaining. Neither did the directors convey the club h011se and grounds without authority from the stockholders; nor did they sell it to themselves and thereby subject themselves to an action on behalf of the corporation at the instance of a non-consenting stockholder, for secret profits. The case is one where the selling corporation, having practically the same directors and shareholders as the buying corporation, conveyed to the latter. As pointed out in paragraph a appellant insists this unity of interest and personnel makes it a case of a person with authority to sell, and charged with a fiduciary relation, selling to himself, hence the transaction is void as to a non-consenting stockholder, fraud or no fraud.

It must be admitted the case is close, at first blush and on the surface, to that of such person selling to himself. But up to this time in jurisprudence some controlling significance has been allowed to the fiction that one corporation is a separate entity from every other, a separate juristic person from every other. Hence, in a juristic sense, when Pish Cub by authority of its stockholders sold to Shooting Club, it was not a person selling to himself within the rule discussed in paragraph a.

Conceding that the situation bespeaks a close and scrutinizing eye by a court to spy out covin and covert fraud, yet in this jurisdiction, absent fraud, it has not been the rule to avoid a fair transaction between two corporations solely on the ground of unity of personnel in directors, or unity of voting power in stockholders, or because of interlocked directorates. Defendants ’ learned counsel have collated a line of cases whose doctrines run agreeably to the foregoing pronouncement. They will appear in the headnotes of our reporter and some of them are cited supra. We will not lengthen this opinion by quoting from them or citing them here.

The auxiliary relief of a receivership falls with the principal relief, to-wit, rescission, and hence needs no attention if the latter be denied.

On the whole case, in view of the premises, the decree is affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: BOND, J.

license: Public Domain

text:
    LIZZIE VANTINE v. MARY BUTLER et al., Appellants.
    Division One,
    May 31, 1913.
    1. PARTITION: Right of Plaintiff to Maintain: Former Judgment Establishing Heirship. A final judgment of the circuit court decreeing plaintiff to be a pretermitted heir of testator, and appealed from by defendants without bond and still pending and unafllrmed in the appellate court, is competent evidence to establish the fact that plaintiff has an interest in the land to be partitioned. Such judgment was conclusive upon the parties until reversed, and defendants cannot question its conclusiveness in the subsequent partition proceeding, where they do not seek to postpone that proceeding until the determination of the former suit by the appellate court.
    2. -: Present Right to Maintain: Pretermitted Heir. A pretermitted heir has a present right to prosecute her suit for a partition of testator’s real estate, and therein to set up her right as his child, independently of any prior suit to establish her heirship and title to her share in his entire estate.
    3. -: -:--: Suit Contesting Will Pending. The fact that some of the devisees under the will, after plaintiff, pretermitted by the will, brought her present suit in partition, instituted an action against the other devisees to set aside the will, does not constitute a defense to her suit. The plaintiff does not claim under the, will, and whether it be established or annulled in the suit by the devisees inter sese she is not affected as to the extent of her rights in decedent’s estate under the statute which entitles the child of the deceased not mentioned in the will “to such proportion of the estate of the testator, real and personal, as if he had died intestate.”
    Appeal from Boone Circuit Court. — Now. N. D. Thurmond, Judge.
    Affirmed.

      Whitecotton £ Wight and Harris & Finley for appellants.
    (1) There was no competent testimony tending to prove that the respondent had any right or interest in the land asked to be partitioned, and especially no right to the present possession of hex share in severalty, which is necessary for the party to have before they can maintain partition. 21 Am. & Eng. Ency. Law, 1151. (a). Partition may be maintained when the party is disseized who brings the suit, but even where that is the law, there must be a present right of entry, (b). While the appeal did not suspend the judgment entered in the suit brought to determine the heirship of the plaintiff, still, it does not give the respondent the right of present entry, having been appealed. State ex rel. v. Dillon, 96 Mo. 61. (2) The court entered judgment without any substantial testimoney upon which to base it. The answer is a general denial, followed by an affirmative defense in the nature of a plea in abatement. Except as to the question as to the value of the land, there is no testimony tending to prove the issue joined, except the judgment of the former suit offered in evidence, and the issue determined in that suit, being solely the question of the heirship of the respondent, said judgment was not competent for any other purpose than to prove the heirship of the respondent, if that, under all the facts shown. (3) There being no substantial testimony, tending to prove the substantive allegation of plaintiff’s petition* the court should have given appellants’ declaration directing judgment dismissing plaintiff’s bill.

      Gillespy & Conley for respondent.
    The record shows the proceedings in the case which establishes respondent’s heirship and tenancy in common with defendants and defendants ’ interest in these particular lands. These records were not objected to, nor exceptions saved, and their competency cannot now be called in question. They establish her right to the present possession, of her share in severalty, (a) Respondent has a right of entry. A widow’s claim of dower or quarantine is- not adverse to the claims of heirs. Thomas v. Black, 113 Mo. 70; Colvin v. Hauenstein, 110 Mo. 575. The defendants claim under the will of John Butler, and this will does not create estates inconsistent with plaintiff’s claims and therefore adverse. Shepperd v. Fisher, 206 Mo. 249; O’Brien v. Ash, 169 Mo. 283; Collier v. Gault, 234 Mo. 457; Chapman v. Huffman, .191 Mo. 237; Breidenstein v. Bertram, 198 Mo. 328. (b) Appellants concede the appeal did not suspend the judgment but say the judgment although final and unsuspended did not give plaintiff a right of entry. The case they cite holds that a final judgment sustaining an injunction is not suspended by an appeal, and that if it is disobeyed contempt proceedings may be brought for disobeying it. “While the case is hardly in point the logic of it sustains respondent’s view, that the judgment is final until reversed. Until reversed or set aside the prior decree is a final one, and where no appeal bond is given the judgment is not suspended nor is execution thereon prevented. Rodney v. Gibbs, 184 Mo. 11; Burgess v. O’Donoghue, 90 Mo. 299. When the decree was offered in evidence it was a valid subsisting decree unreversed and in full force and effect and in no way suspended by a supersedeas. Rodney v. Gribbs, 184 Mo. 11; Ritter v. Democratic Press Co., 68 Mo. 458. An appeal does not vacate the judgment below or prevent it from being pleaded or given'in evidence as an estoppel upon issues that were tried and determined in the case. Edmonston v. Carter, 180 Mo. 515; Ranson v. City of Pierre; 41 C. C. A. 585, 101 Fed. 665; Freeman on Judgments (4 Ed.), sec. 328; 2 Black on Judgments (2 Ed.), secs. 510, 685.
    STATEMENT BY THE COURT.
    Plaintiff sues as the child and heir of John Butler, who died on the 28th of September, 1906; after having made'a will devising his estate, consisting of land and personalty wherein she was neither mentioned nor provided for, for a partition of a portion of his real estate between herself and widow and devisees mentioned in said will, alleging that she is entitled to an undivided one-sixth interest in the fee of said land, subject to a dower interest of the widow therein, to whom said land had been devised during her natural life or widowhood, with remainder at her death or remarriage to her co-defendant, Loutetia Phelan, also a daughter of said John Butler, deceased. The petition then specifically sets out the respective interests of the parties, and alleges that the personal estate of the deceased; John Butler, is amply sufficient to pay off all his debts, and that the land in question being insusceptible of advantageous division should be sold for partition. The two defendants are the devisees under the will, to whom the particular land sought to be partitioned was devised, and answered (1) by a general denial; (2) by way of affirmative defense and plea in abatement that plaintiff prior to the institution of the present suit had instituted another action in said court against all the heirs of John Butler, deceased, seeking to establish her rights as a child and heir of the deceased, to a distributive share of his entire estate; and wherein the present defendants and other heirs of the deceased were made defendants; and wherein they denied the heirship and interest of plaintiff, and on trial of which issue, plain-' tiff prevailed. And for a third defense alleged that one of the descendants of John Butler, deceased, had brought an action against other devisees under his will to set aside the same, which action was still pending. The reply took issue. Plaintiffs adduced evidence of the decision in her favor in the former suit begun to establish her heirship' by the circuit court of Boone county, and that an appeal was taken therefrom by some of the defendants but without bond (which appeal subsequently resulted in an affirmance of the judgment obtained by plaintiff in the lower court in a decision rendered February 29', 1912). [Vantine v. Butler, 240 Mo. 521.] And also proved that she was not a party to the suit contesting the will. Upon the conclusion of the testimony, the court rendered a judgment ascertaining the interests of the parties and appointing three commissioners to set off dower to the widow, and directing the remainder of the land described to be sold and the proceeds divided in proportion to the interests of the parties entitled. From that decree, the defendants perfected their appeal to this court.
   OPINION.

I.

BOND, J.

(After stating the facts as above):-

The first error assigned in the brief of appellants is that the decree below was not supported by competent evidence tending to prove that respondent had any right or interest in the land to be partitioned or present right of possession to a share thereof in severalty.

The appellants are in no position to complain of the sufficiency of the evidence to show the heirship of the plaintiff as, a child of the deceased John Butler. That issue was determined in respondent’s favor in a suit brought by her against them and others for the purpose of deciding it,, and the judgment so rendered was offered and received in evidence in the present case without any objection whatever on the part of appellants. It is true that at the-time it was presented in evidence its conclusiveness was provisional only since it had not then been affirmed on the appeal taken to this court without bond; but it was then a final judgment open to execution and conclusive between the parties until it should be reversed. [Rodney v. Gibbs, 184 Mo. l. c. 11; Burgess v. O’Donoghue, 90 Mo. 299; Ritter v. Democratic Press Co., 68 Mo. 458; Railroad v. Atkinson, 17 Mo. App. 484.] This judgment, subsequent to the possibility of its reversal on appeal, was pleadable or evidentiary in any matter arising between plaintiff and the defendants who are-parties thereto. [Rodney v. Gibbs, supra, l. c. 14; Edmonston v. Carter, 180 Mo. 515; 2 Black on Judgments (2 Ed.), secs. 510, 685; 1 Freeman on Judgments (4 Ed.), sec. 328.] If that judgment had been reversed instead of having been affirmed on appeal to this court (Vantine v. Butler, 240 Mo. 521), appellants might have had the advantage thereof if the present case had still been pending, by a plea of plus darrein contmuamce. [Wade & Osborne v. Emerson & Goldsberry, 17 Mo. 267.] Or if the present case had been tried before the determination of the appeal in the other, appellants might have obtained by proper proceedings an annulment of the decision in plaintiff’s favor. But appellants had no right to question the conclusiveness of the judgment against them, from which they had appealed without bond, especially since they- did not in any way seek to postponé the prosecution of the present suit until the determination of the former and made no objection whatever to the introduction in evidence in this case of the proceedings in the other.

We, therefore, rule that there was competent evidence in this case to support the judgment of the trial court.

II. Neither is there any merit in appellants’ claim, that plaintiff did not have at the institution of this suit a present right to her share in severalty of her father’s estate. She might have prosecuted this action and set up her rights as such child in this action independently of a prior suit to establish her heirship and title to her share in the entire estate of her father; and in the event of the sustention of those rights on the trial, she had the same right to a decree for partition which any other heir of her father would have in case of his intestacy. [Breidenstein v. Bertram, 198 Mo. 328 and cases cited; McCracken v. McCracken, 67 Mo. 590.] Hence, she had the same rights of entry after such judgment that any other child would have had whose heirship was acknowledged. The present action is only for participancy on her part in a specific portion of the land of the deceased father. The former action was intended to establish her rights generally as his child to an equal share with his other children in all of his estate as if he had died intestate and was predicated upon the terms of the statute entitling the child lof the deceased, wbo is not mentioned in his will, “to such proportion of the estate of the testator, real and personal, as if he had died intestate.” [R. S. 1909, sec. 544; Boyer v. Dively, 58 Mo. 510.] It in no wise prevented the bringing of the present suit.

III. These conclusions cover all the defenses made except the one based on the fact that some of the devisees under the will of the deceased, after the institution of the present suit, brought an action against the others to set aside the will. Obvi0118]^ that does not constitute a defense to this action, for the plaintiff in this case does not claim under the will and is not affected as to her rights secured by the above statute, whether the will is established or annulled. [Spratt v. Lawson, 176 Mo. l. c. 182; Robertson v. Brown, 187 Mo. l. c. 457.] The rights which enure to the plaintiff are measured by those to which she would have been entitled had her father died without a will; and the enforcement of her rights does not trench upon the relations inter sese of the devisees of the will, who still take according to its devises if that instrument is valid, excepting that they are required to contribute their proportional part to make up the interest and estate which comes to the plaintiff as upon the intestacy of her father. [R. S. 1909, secs. 544, 582.]

The result is the judgment is affirmed.

All concur.


author: GRAVES, J. WOODSON, P. J. LAMM, J.

text:
    T. J. NALLEY v. HOME INSURANCE COMPANY, Appellant.
    Division One,
    May 31, 1913.
    1. INSURANCE: Uniform Policy: Delegation of Legislative Power. The Legislature cannot delegate the important legislative function of prescribing the form of fire insurance contracts to the Insurance Commissioner or to the insurance companies doing business in this State, or to both acting conjointly. So much of Sec. 7030, R. S. 1909, as requires fire insurance companies doing business in this State to agree upon a uniform policy for use by them, to be approved by the Insurance Commissioner, and prohibiting the issuance of any other policy which does not embrace the form so made and approved, is unconstitutional and void, as an unwarranted delegation of legislative power.
    2. CONSTITUTIONALITY OF STATUTE: Separable Provisions: Legislative Intent: Valued Policy Law. A part of a statute may be unconstitutional and the remainder valid. If after the invalid portion is separated a good law remains, one within the legislative intent, what remains is valid. But if by the process of elimination the legislative intent is changed, no part of it is valid; and in getting at that intent, the whole act, the constitutional and unconstitutional parts, must be considered. The portion of the Act of 1895 (Sec. 7030, R. S. 1909), which refers to a uniform fire insurance policy, to be agreed upon by the Insurance Commissioner and insurance companies, is unconstitutional, and may be stricken out and leave a complete law embracing the three subjects, namely, time in which notice of loss is given, how notice may be waived, and what is known as the “valued policy” provision, without a change in the legislative intent, although all four subjects are embraced in one section.
    3. -: Title: Single Subject: Valued Policy Law. Where all the provisions of a statute fairly relate to the same subject, have a natural connection with it, and are the incidents and means of accomplishing it, then the subject is single, and if it is sufficiently expressed in the title, the statute is valid. If all the provisions of the act have a natural relation and connection, the subject is single. An act whose three provisions declare (1) within what time notice of loss by fire must be given, (2) what constitutes a waiver of such notice and (3) what is meant by a “valued policy,” has but one subject, and all are germane to the title, which is: “An Act relating to Fire Insurance and Form of Policies;” nor is it invalid as to those subjects, although other provisions in it relating to a uniform policy are stricken out as an invalid delegation of legislative power.

      Held, by WOODSON, P. J., dissenting, that the principal subject of the act is a uniform policy for fire insurance, and that part of the act being unconstitutional and void, and the notice to which the act refers being the notice provided for in said uniform policy, all the rest of the act is of necessity invalid.
    4. -: -: -: Title “Fire Insurance:” Provision For “Fire and Lightning.” A provision in the body of the act for “risks by fire and lightning” is embraced in a title which speaks only of “Fire Insurance.” Fire and lightning risks are usually covered by the same insurance policy, and fire is sometimes set by lightning.

      Held, by LAMM, J., dissenting, that the policy sued on being one for loss by tornado, and it being held that the statute does not embrace tornado insurance, whether or not so much of it as applies to fire insurance is constitutional and void is a question not for determination, and what is said on that score is obiter, .and in no sense res adjudicata.
    5. -: Title Fire Insurance: Provision for Tornado: Valued Policy. The term “fire insurance,” used .in the title to the “valued policy” Act of 1895, is not broad enough to include tornado or cyclone insurance. No part of the Act of 1895 applies to tornado insurance. The “valued policy” law does not include tornado insurance. The court erred when it gave an instruction to the' effect that the insurance company could not deny that plaintiff’s building was worth $2666.66 because it had issued the tornado policy for $2000 sued on.
    6. -: Valued Policy Law: Insurance Other Than Life: Breadth of Statute. The fact that the statutes speak of “life insurance” and “insurance other than life” does not make them hroad enough to make the provisions of the “valued policy” law include tornado insurance.
    7. TORNADO INSURANCE: Things That Must Be Proved: Notice: Value of Property Destroyed. In a suit on a tornado policy the insured must prove the value of the property insured; and the questions of notice and waiver of notice are to be determined by the terms of the policy. The provisions of the statute relating to those subjects in the statute concerning fire insurance are not applicable to tornado insurance.
    Appeal from Pike Circuit Court. — Hon. D. H. Eby, Judge.
    Reversed and remanded.

      J. D. Hostetter and Fyke & Snider for appellant.
    (1) The Act of 1895 (Laws 1895, p. 194, being Sec. 7030, R. S. 1909) is unconstitutional. Constitution, ¿rt. 4, sec. 28>. Tbe act consists of but one section. Tbe first part of tbe section delegates to fire insurance companies doing business in tbe State of Missouri and the Insurance Commissioner authority to agree upon a uniform form of policy for use by said insurance companies in tbe State of Missouri to be classed and known as tbe Missouri fire insurance policy. That part of tbe section is unconstitutional because it attempts to delegate to tbe fire insurance companies and tbe Insurance Commissioner authority which is vested only in the Legislature. O’Neil v. Insurance Co., 166 Pa. St. 72; Dowling v. Ins. Co., 92 Wis. 63; Anderson v. Fire Assn. Co., 59 Minn. 192; Lockes’ Appeal, 72 Pa. St. 491; Eailroad v. Commissioners, 1 Ohio St. 88. (2) It cannot be claimed that the title to the act embraces •any risk except against loss by fire, nor can it be claimed that if the act does embrace other classes of risks, the subject is clearly expressed in its title. State v. Coffee Co., 171 Mo. 634; . State ex inf. v. Bordon, 164 Mo. 221; State v. Smith, 233 Mo. 255. Insurance against loss or damage by lightning or by windstorm, cyclone or tornadoes, is not germane to insurance against loss by fire. They are entirely distinct and separate. Hence an “act relating to fire insurance and form of policies” cannot be held to relate to insurance against lightning or to insurance against loss by windstorm, cyclone or tornadoes.

      Pearson é Pearson for respondent.
    (1) The question of the constitutionality of Sec. 7030, E. S. 1909, has previously been before this court; and by this court held to be constitutional. Business Men’s League v. Waddell, 143 Mo. 495'. (2) This is no legislative authority delegated to the commissioner. It is only a duty imposed upon him to se'e that the laws of the State are enforced. The Legislature has enacted into a law, that all insurance companies doing business in this State shall agree upon and use a uniform policy of insurance. And, by this section, the Legislature has simply charged it as a duty upon the Insurance Commissioner to see that such uniform policy, so agreed upon by the insurance companies, is satisfactory, and in all other particulars complies with the laws of the State. (3) The statutes of Missouri •classify as one subject insurance other than life. Art. 6, chap. 61, E. S. 1909. The one subject of this entire article, within the meaning of the Constitution, is, broadly speaking, insurance other than life. Under this head, there are four subdivisions any one of which is merely incidental to, and a part of “one subject,” insurance other than life. The first subdivision of which covers insurance against loss or damage by “Fire, Lightning, Hail and Windstorm.” Sec. 6995, R. S. 1909. Fire insurance is the great predominant insurance of this class. The legislators have used the term Fire Insurance, for all insurance of this class, and especially of this subdivision. Hanna & Oo. v. Ins. Co., 109 Mo. App. 159; Gibson v. Ins. Oo., 82 App. 521. (4) Appellant charges error on the part of the court, in giving plaintiff’s instruction as to the value of the property at the time of issuing policy. A similar instruction to this has been before the courts many times, and has been universally approved by the appellate courts. Hanna & Oo. v. Insurance Oo., 109 Mo. App. 157; Stevens v. Insurance Co., 120 Mo. App. 88; Gibson v. Ins. Oo., 82 Mo. App. 515; Crossam v. Ins. Co., 133‘Mo. 539; Siegler & Son v. Ins. Co., 107 Mo. App. 456; Ritchey v. Home Ins. Co., 104 Mo. App. 146.
   GRAVES, J.

This is an action upon what is ordinarily called a “Cyclone or Tornado policy” of insurance, wherein the plaintiff seeks to recover $2000 for damages 'to his residence in Pike county, Missouri. The petition is in usual form and unchallenged here, therefore further particulars of this pleading may be omitted. The crux of the case lies in the answer and other matters injected in the course of the trial. The points in the answer can best be stated by the terms of that pleading. Such answer is as follows:

“The defendant for answer to plaintiff’s petition says:
“1st. It admits that it is licensed to do business in the State of Missouri, and has engaged in doing the windstorm, cyclone and tornado business.
“2nd. It admits that on the 10th of January, 1906, it made the policy of insurance mentioned in the petition.
“3rd. Further answering defendant says it is provided in said policy as follows: 'In case of loss the assured shall give this company immediate written notice thereof at the office of the Western Farm Department of the company at Chicago, Illinois, and within sixty days thereafter shall render to such office, under oath, a particular and detailed statement and proof of the actual cash value at the time of the loss of any property or articles upon which loss or damage is claimed.’ And defendant alleges that if plaintiff sustained any loss by windstorm, cyclone or tornado, on the 22d day of November, 1908, he did not give to defendant immediate notice thereof and never did at any time, and never has furnished defendant under oath a particular and detailed statement and proof of such loss as required by the terms of said policy; by reason whereof plaintiff is not entitled to recover.
“ Further answering defendant denies each and every allegation, matter, fact and thing in the petition alleged not herein expressly admitted, and having fully answered asks to go hence with its costs. ’ ’

Reply was in conventional form.

Plaintiff had a verdict for $1750 and interest, and from a judgment thereon the defendant has appealed. The case reached this court by reason of a constitutional question which first arose upon.the giving of an instruction for the plaintiff, and later pressed in the motion for new, trial, thus:

“The following instruction given by the court at the request .of the plaintiff, to-wit: The court instructs the jury that the defendant insurance company is forbidden by the law to insure any property for more than three-fourths of its value at the time of issuing its policy of insurance on the property therein described ; that the sum insured on the one and two-story brick and frame dwelling house described in defendant’s policy of insurance sued on is $2000. That for the purpose of this case the law fixes the value of said property at the time of issuing said policy of insurance at the sum-.of $2666.66, and defendant cannot now deny that the said one and two-story brick and frame dwelling and foundation was at the time of issuing said policy of the said value of $2666.66.’ is erroneous, prejudicial and misleading, for the reason that there is no law so fixing the value of said property. That is, the court bases said instruction on section 7979, Revised Statutes 1899, said instruction is erroneous because said section is not applicable to companies writing windstorm, cyclone, or tornado policies, and for the further reason that said act which was passed by the Legislature in 1895', Laws 1895, p. 194, is violative of section 28 of article 4 of the Constitution of Missouri, in that said bill or act as passed by the Legislature aforesaid contains more than one subject, and all the subjects contained in said act are not clearly expressed in its title, and said act attempts to delegate legislative functions to insurance companies and the Insurance Commissioner of the State of Missouri. ’ ’ •

Such is a fair outline of the case, leaving to the opinion the further details both of evidence and pleadings.

I. The constitutionality of section 7030, Revised Statutes 1909‘, is- challenged by the defendant. This section comes from the Act of- 1895. [Laws 1895, p. 194.] The title to that act reads: “An act relating to Fire Insurance and Form of Policies.” The body of the act, which contained but one section, is as follows:

“Section 1. Fire Insurance companies doing business in the State of Missouri are hereby required, on or before the first day of January of the year 1896, to agree upon a uniform form of policy for use by them in the State of Missouri, covering the responsibilities of the companies as well as the duties of the assured,, to be classed and known as the Missouri fire insurance policy. Said policy shall he approved of .by the Insurance Commissioner of this State, and after the first day of January, A. D. 1896, no policy shall he issued in this State carrying risks by fire or lightning by any company which does not embrace the form made and approved of as herein directed. To all such policies shall he attached a blank notice, with the address of the company fully printed thereon, to he used by the assured in case of loss in notifying the company of such loss, which notice shall he given within ninety days thereafter. The appearance of an adjuster of any company at the place of fire and loss in which said company is interested by reason of an insurance on such property, shall he considered evidence of notice, and to he held as a waiver of the same on the part of the company. No company shall take a risk on any property in this State at a ratio greater than three-fourths of the value of the property insured, and when taken, its value shall not he questioned in any proceeding.”

The first point urged against the validity of the law is that it is an unwarranted delegation of legislative powers. The contention is that there was left to the insurance companies then doing business in the State and the then Insurance Commissioner the power to fix a form of policy to he used in Missouri, and that the exercise of that power is the performance of a duty incumbent upon the Legislature, which duty cannot he delegated to another. There is no question from the case law that the Legislature can prescribe a form of policy to he used in this State. Nor do we think that there is much question about that portion of the Act of 1895, which refers to the adoption of a form of policy by the insurance companies and the Insurance Commissioner being invalid as being an unwarranted delegation of legislative power. Whether it invalidates the whole act, we discuss later. It is claimed by the plaintiff that (this court held the Act of 1895 constitutional in the case of Business Men’s League v. Waddill, 143 Mo. 495. In this plaintiff is in error. In the Waddill case we made no attempt to discuss the constitutionality of the act. We did say that such question was urged, but this court saw fit, to permit that case to ride off upon another question, i. e., that the plaintiff had no sufficient interest to give them a standing in a court of equity. This court therefore has not heretofore passed upon the question.

In Pennsylvania the act of 1891 authorized the Insurance Commissioner to prepare a form of policy to be used, and such law was declared invalid. [O’Neil v. Insurance Co., 166 Pa. St. 72.] The court among other things said:

“In the light of this line of well considered cases let us examine the.act of 1891 in order to get its provisions before us. Section first declares ‘That the Insurance Commissioner shall prepare and file in his office, on or before the fifteenth day of November, 1891, a printed form in blank, of a contract or policy of fire insurance, together with such provisions, agreements or conditions as may' be indorsed thereon or added thereto and' form a part of such contract or policy; and such form when filed shall be known and designated as the standard fire insurance policy of the State of Pennsylvania. ’ Section second provides among other things for the incorporation of the provisions of the standard policy into the contracts of insurance made on property within the State by foreign insurance companies. Section third makes the use of this standard form of policy obligatory on all fire insurance companies doing business in this State from and after the first day of May, 1892. Section fourth provides the penalties to be imposed upon any insurance company, its officers or agents or either of them, for failure to comply with the requirements of the act or with the form of policy which the Insurance Commissioner may devise and file in his own office.
“It may be well to say in this place that we do not now deny the power of the Legislature to direct the form of a policy of insurance against fire. We held in Commonwealth v. Vrooman, 164 Pa. St. 306, decided in October last, that the business of insurance against loss by fire was, by reason of its nature, its magnitude, and the temptation to improper practices which it presented, a proper subject for legislative regulation and control. The power to prohibit technical and unjust conditions intended to open the way to vexatious litigation and to defeat the just expectations of the insured, belongs to the police control which Commonwealth v. Vrooman asserted. The question is not therefore one of power over the subject, but of the manner in which the conceded power must be exercised. Upon this question our judgment is with the appellant for reasons that we will state as concisely as possible. and without any attempt at elaboration.
“The Act of 1891 is a delegation of legislative power because.
“First. The act does not fix the terms and conditions of the policy the use of which it commands.
“Second. It delegates the power to prescribe the form of the policy, and the conditions and restrictions to be added to and made a part of it, to a single individual.
“Third. The appointee clothed with this power is not named but is designated only by his official title. He is the person who may happen to be Insurance Commissioner when the time comes to prepare the form for the standard policy for insurance against fire.
“Fourth. The appointee is not required to report his work to the body appointing him, but simply to file in his own office the form of policy he has devised. It does not become part of the statute in fact, is not recorded in the statute book, and no trace of it can be found among the records of either branch of the Legislature.
“Fifth. The act was approved in April, 1891. The appointee had until the following November to prepare and file the form of policy over which when filed the Legislature had no control whatever. They did not consider, they had no knowledge of, the form which, they required all companies doing business in the State to adopt and the use of which they compelled by heavy penalties.
“The elementary books divide a statute into three parts, the declaratory, the directory and the vindicatory. In this statute the Legislature furnished the first and third. It delegated the preparation of the second. It declared in effect the need of a standard form of policy. It provided punishment for the failure to use such form when provided; but it turned the preparation of the form over to its appointee and gave him six months in which to do his work and file a copy of it in his own office. Whoever might be interested in knowing the directory part of the statute and understanding what it was he was required to do, had to go beyond the act of Assembly and inquire of the appointee of the Legislature what it was he had filed in his own office, of which the people 'of the commonwealth were bound to take notice at their peril.
“It will not do to say that the preparation of the form was an unimportant matter of detail, or an act partaking of an executive or administrative character. It was the sole purpose of the act. It was the only subject named in its title. The enforcement of the standard form of policy was the only object of its penalties. Take out the form prepared by the Insurance Commissioner and to be found in some pigeon hole in his office, and the act is without meaning or effect, it is completely eviscerated.
“We do not see how a case could be stated that would show a more complete and unconstitutional surrender of the legislative function to an appointee than that presented by the Act of 1891. By its provisions the Legislature says in effect to its appointee, ‘Prepare just such a policy or contract as you please. We do not care to know what it is. The governor shall have no opportunity to veto it. File it in your own •office and we will compel its adoption, whether it is right or wrong, by the punishment of every company, •officer or agent who hesitates to use it.’
“We do not take time to examine the voluminous •conditions loaded upon the back of a very simple and •concise contract of insurance. The assignments of error do not bring them before us for this purpose. The learned judge of the court below gave them careful •consideration and he was of opinion that they were unjust and oppressive. Speaking of the form of the standard policy as a whole he said, ‘I look upon it as infamous.’ Again he said, ‘The conditions put in that policy go beyond almost any policy that ever was exhibited in the courts before. Numerous provisions were put in that the courts had declared void because they were so unjust and inequitable. ’ Speaking of its .general character and effect he said: ‘It seems to be framed in the interest of dishonest companies and insurance brokers and puts an honest insurance company and honest officers of a company at a very great disadvantage.’
“This is a very serious arraignment of the ‘standard policy,’ to which we refer, without comment of our own, for the purpose of showing the impolicy of •such delegation of legislative power as might make it possible to fasten upon the people of the commonwealth a form of contract, open to such grave objections.
“It is not to be supposed that a law really mischievous in its operations could pass both houses of the Legislature unchallenged. If by reason of any com-plieation of circumstances this should happen in any given case, then the people have a remaining safeguard in the veto power possessed by the Governor, The Act of 1891 steered past both legislative discussion and executive veto, and vested in the insurance commissioners the power to fill in its directory provisions, and supply the form of insurance contract it was to enforce, without even the knowledge of the Legislature or the Governor of a single one of its many provisions that were to be bound by fines and penalties on insurers and insured all over the commonwealth.
“Our conclusion is that the act of 1891 is void because clearly unconstitutional.”

I can see no difference in delegating the power to-prescribe the form of the insurance contract to the-Insurance Commissioner alone, and in delegating it to the Insurance Commissioner and the insurance companies. In Dowling v. Insurance Co., 92 Wis. l. c. 73, in discussing a statute similar to the Pennsylvania act,, supra, the Wisconsin court said:

“Within the lines indicated, a discretion was reposed in the commissioner as to the form of the policy which embodied the substance of the contract, and which was to have the sanction and force of law. The-effect, clearly, was to transfer to him bodily the legislative, power of the State on that subject. Within the limits prescribed, he was to prepare just such a policy or contract as, in his judgment and discretion,, would meet the legal exigencies of the case, no one could certainly predict what the result of his action might be. It was not to be published, as laws are required to he, or to he approved by the Governor. It was to be filed in the office of the Insurance Commissioner, instead of being deposited in the office of the Secretary of State, and its use was to be enforced by the penal sanction of the act. He was not required by the act to perform any mere administrative or executive duty, or to determine any matter of fact for the-purpose of executing or carrying the act into effect.
“The result of all the eases on this subject is that a law must be complete, in all its terms and provisions, when it leaves the legislative branch of the government, and nothing must be left to the judgment of the-electors or other appointee or delegate of the Legislature, so that, in form and substance, it is a law in all its details in praesenti, but which may be left to take effect in futuro, if necessary, upon the ascertainment of any prescribed fact or event. Instead of preparing a form of standard policy and adjusting it to the existing legislation, or modifying such legislation, if necessary, by virtue of its constitutional functions, the Legislature delivered over this task wholly to the Insurance Commissioner, to accomplish it as nearly as-might be; and this depended wholly upon his discretion and judgment as to what the law should be in this respect, for the act had not specifically declared' it. Conceding that the Legislature might have adopted the New York form as an entirety by the use of general language, it is evident that the proposed form, to-conform ‘as near as can be to the form adopted in New York,’ involved a duty equivalent to that of revision, which it cannot be contended could be delegated except subject to legislative approval. While the commissioner, within the discretion intrusted to him, might have approximated in a great degree to the policy which the Legislature may have intended, the objection, in view of the consideration stated, that it has not received the legislative sanction, is necessarily fatal to it.
“The cases of State ex rel. R. & W. Comm. v. C. M. & St. P. R. R. Co., 38 Minn. 298, and Chicago & N. W. R. R. Co. v. Dey, 35 Fed. 866, are not in conflict, but in harmony, with the conclusion we have reached, as to‘ what is and what is not an unconstitutional delegation of the legislative power.
“For these reasons, we hold that the provision authorizing the Insurance Commissioner to prepare, approve, and adopt a printed form in blank of a contract or policy of fire insurance, together with such provisions, agreements, or conditions as may be indorsed thereon or added thereto and form a part of such contract or policy, and that such form shall, as near as the same can be made applicable, conform to the type and form of the New York standard fire insurance policy, so called and known, is unconstitutional and void. Conclusions in accord with these views, in somewhat similar cases, have been reached in other States. [Anderson v. Manchester F. Assn. Co. (Minn.), 63 N. W. 241; O’Neil v. Am. F. Ins. Co., 166 Pa.St. 72.]
“The instruction of the court to the jury that if the plaintiff Dowling, at the time the policy was issued, stated to defendant’s agent fully the existence of the incumbrances, they would find in favor of the plaintiffs, was correct and in conformity with previous decisions of this court on the subject of waiver of conditions of forfeitures in the policy against incumbrances. [Renier v. Dwelling House Ins. Co., 74 Wis. 94, and cases there cited; Bourgeois v. Mut. F. Ins. Co., 86 Wis. 402.]”

The same ruling was made in Anderson v. Insurance Co., 59 Minn. 182, and the Pennsylvania case, supra, cited with approval. So that we repeat that there can be no question (owing to the intricacies of insurance contracts) that the Legislature can prescribe a form for such contracts to be used in this State, but in our judgment it cannot delegate this important task to either the Insurance Commissioner or to the insurance companies, or to both combined. If public policy demands that the public be protected in these contracts the police power is no doubt broad enough to authorize legislative action, but it yet remains a legislative duty, which cannot be delegated. We are of opinion, that in so far as the Act of 1895 undertakes to permit the insurance companies, with the approval of the Insurance Commissioner, to write the terms of an insurance policy, it is void for constitutional reasons.

II. When we eliminate from the Act of 1895 that portion which refers to the Missouri form of a policy and the method of its creation, we have left the following :

“Sec. 1. ... To all such policies shall be attached a blank notice, with the address of the company fully printed thereon, to be used by the assured in case of loss in notifying the company of such loss, which notice shall be given within ninety days thereafter. The appearance of an adjuster of any company at the place of fire and loss in which said company is interested by reason of an insurance on such property, shall be considered evidence of notice, and to be held as a waiver of the same on the part of the company. No company shall take a risk on any property in this State at a ratio greater than three-fourths of the value of the property insured, and when taken, its value shall not be questioned in any proceeding. ’ ’

This part of the statute covers three matters: (1) Time in which notice of loss must be given; (2) how notice may be waived; and (3) what is known as the “valued policy” law.

Defendant challenges the constitutionality of the whole act and says that it violates section 28, article 4, of the Constitution, in that the subject-matter of the act embraces more than one subject and embraces subjects not clearly expressed in its title. That a part of an act may be unconstitutional and the remainder be valid has often been announced by the courts. So in this case it does not necessarily follow that, because that portion of the act providing for a uniform insurance contract in Missouri is invalid, the whole law must fail. If the invalid portion can be carved from tbe act, and yet leave a good law, and one within the legislative intent, then the remainder should stand. If by the process of elimination the legislative intent is changed, no part of Ihe act can stand. And further in getting at the legislative intent the whole act, the unconstitutional as well as the constitutional portions, must be considered. But if when all is thus considered, and it is seen that the unconstitutional portion can be stricken out, and yet there remains a complete law, within the legislative intent, such portion of the act should stand. In our judgment that portion of this act, condemned in our paragraph one, can be eliminated from the Act of 1895', and leave a complete law, covering the three matters mentioned, supra, i. e. (1) time of notice of loss, (2) waiver of notice, and (3) the “valued policy” theory, and all fully within the original legislative intent. The last portion of the act should not, therefore, fall simply because the first portion must fall under the constitutional edict as to the delegation of legislative powers. But defendant urges that this does not save the act. Defendant contends that it must fall, as a whole, under the constitutional ban placed thereon by section 28, article 4, supra. This requires us to go to the title of the act. If the subject-matter of the latter portion of this act is within the limits of this title, or germane thereto, then it should stand, but otherwise it must fall. Singleness of subject in title to bills or legislative acts has been often before this court, but we know of no clearer statemnnt of our rule than that made by Ferriss, J., in the very recent case of State v. Smith, 233 Mo. l. c. 255, whereat he said:

“The statute in question does not violate section 28 of article 4 of the Constitution. The act contains one subject which is clearly expressed in the title. The title of the act is not ‘Medicine and Surgery,’ as defendant asserts it to be in his brief. The words ‘Medicine and Surgery’ are merely the caption. The title to the act is as follows: ‘An act to regulate the practice of medicine, surgery and midwifery, and to prohibit treating the sick and afflicted without a license, and to provide penalties for the violation thereof.’ [Laws 1901, p. 207.]
“The one ‘subject’ of this act, within the meaning of the Constitution, is, broadly speaking, public health. [State v. Marble, 72 Ohio St. l. c. 36.] Treating the sick is well within the subject, and is specifically covered by the title. It is unnecessary to cite the cases in this State on this proposition. This court has again and again, with patient repetition, expounded the law upon this constitutional provision, and the law so expounded is this: ‘Where all the provisions of a statute fairly relate to the same subject, have a natural connection with it, and are the incidents or means of accomplishing it, then the subject is single, and if it is sufficiently expressed in the title, the statute is valid.’ [State v. Doerring, 194 Mo. 398, and cases therein cited.] The practice of medicine, or surgery, and the treatment of the sick by whatever means employed, are certainly germane to each other and are germane to the general subject of health.
“ ‘This section of the Constitution is to be reasonably and liberally construed and applied, due regard being had to its object and purpose ... If all the provisions of the bill have a natural relation and connection, then the subject is single, and this, too, though the bill contains many provisions.’ [State ex rel. v. Bronson, 115 Mo. l. c. 276.]
“If the treatment of the sick and the practice of medicine and surgery are not in natural relation, then it will be difficult to conceive of a case where two or more provisions in a bill relate to each other. ’ ’

Let us look at the title to the act in question; It is: “An Act relating to Fire Insurance and Form of Policies.” “Fire Insurance” is a very broad subject. Many things are germane to such a subject. The broadness of tbe subject mentioned in tbe title does not invalidate the act.. Now, can it well be said, that tbe time in wbicb notice of a loss by fire and consequent damages under an insurance policy must be given, is not germane to this subject? We think not. Nor can it be said that statement of wbat shall be deemed a waiver of this notice is not germane to tbe subject. If tbe provision as to notice is germane, it of necessity follows that wbat may constitute a waiver of that notice would likéwise be germane. Tbe third matter mentioned, supra, is tbe “valued policy” feature. For this tbe laws of Missouri have been condemned in insurance circles, and to my mind unjustly condemned. Tbe most fruitful source of incendiaryism is excessive insurance. Such incendiary fires often hurt tbe innocent and honest citizens. Anxious insurance agents,, with an eye single to tbe commission coming into their pockets, encouraged large policies, and tbe innocent public were made to suffer. Insurance companies did not suffer so much because they got premiums on enhanced valuations, and these in a way removed a desire to restrict their agents. Not only so, if losses occurred, whether legitimate or illegitimate, they only bad to pay tbe actual value of tbe honest losses, and a chance to defeat all tbe dishonest losses. Tbe fault of a “valued policy” law lies with tbe agents of tbe companies, and not in tbe law. With honest, careful, painstaking agents (representatives of tbe companies) dishonest losses can be made a thing of tbe past in Missouri. But this is by the wayside. Reverting to tbe question in this case. Is that matter one wbicb is foreign to tbe title of this act or is it one germane to tbe subject in tbe title? We think it clearly germane and fully covered by tbe title. This contention of defendant is therefore overruled.

III. It is urged further that tbe body of tbe act speaks of “risks by fire or lightning,” whilst tbe title only speaks of “Pire Insurance,” and that for that reason the act itself deals with a subject not covered by the title. We are not impressed with this view the matter, although this is the closest question in the whole record. As a court we cannot close our eyes to what is generally known, and it is generally known that fire and lightning risks are usually covered by the same policy. Not only so, but a great many losses through lightning result from fire, which is set to burning by lightning. Ordinarily when we speak of a fire insurance policy we mean one which covers loss by both fire and lightning. Such has been the general understanding of fire insurance policies for years, and such has been the general understanding of “fire insurance,” i. e., an indemnity against loss both by actual fire and by lightning. In my judgment such is the sense in which the term “fire insurance” is used in the title to the act, and if so defendant’s contention must fall.

IV. There are, however, one or more questions in this case which will preclude the present judgment from standing. Whilst we have held that the term “fire insurance” is broad enough to cover “lightning insurance” because of the generally accepted meaning of the term, yet it is not broad enough to cover tornado or cyclone insurance, and it has never been so generally understood or accepted. This is an action on a tornado policy. The Act of 1895 and none of the provisions thereof apply to this policy, and the court erred when it gave an instruction to the effect that the defendant could not deny that the building was worth not less than $2666.66, because defendant had taken a tornado risk thereon for $2000. In other words, the court erred in applying the “valued policy” law to a tornado policy of insurance. It is true that as a general classification of insurance our laws speak of “life insurance” and “insurance other than life,” hut it •does not follow from this that all statutes on insurance other than life apply to each of the many lands of insurance risks. The 'peculiarities of the many different kinds of lisks make them classes unto themselves, although they may fall withih the very general class of “insurance other than life.” Statutes which could be made applicable to one of sundry classes could not be made applicable to each and all of them. In such case the law, if intended "to cover all, must state so explicitly, or by an inference so strong as to leave no doubt of the legislative intent. By its terms this statute does not cover tornado insurance, nor is there any very violent inference that it was ever so intended. This being a tornado policy and therefore one not within the terms of our valued policy law, the plaintiff should be put upon his proof as to the value of the property injured. We must gather the legislative intent from the whole act, as said before, and if in doubt we may look to the title as an aid in determining- the legislative intent. When the whole act (of which the “valued policy” law is a small part and parcel) is viewed, it is evident that the. Legislature only had in mind fire insurance and not tornado insurance. In other words, no part of this act applies to that class of insurance. Upon the question of notice and waiver of notice the parties will have to be relegated to the terms of the policy itself and to general rules of law, rather than the statute here under consideration.

For these reasons the judgment is reversed and the cause remanded.

Other questions of error need not be discussed, because this ruling will evidently change the whole trend of a new trial of the cause.

Let the judgment be reversed and the cause remanded.

All concur. Woodson, P. J., and Lamm, J., in separate opinions.

SEPARATE OPINION.

WOODSON, P. J.

That while I fully concur in the general doctrine that many things may and should he held to he germane to the principal subject of the act or bill introduced in the Legislature for passage, and need not therefore be specially mentioned therein, yet I am of the opinion that when the principal part of the act or bill is declared unconstitutional, null and void for any reason, then it is self-evident that all germane and incidental matters thereto are likewise unconstitutional, null and void.

I heartily concur in the entire opinion of our learned associate, except as to paragraph III, to which I dissent for the reason:

Now what is the principal subject of the act under consideration Answer: I think it is unquestionably a uniform policy of fire insurance; and if that is true, which I believe cannot be successfully denied, then the notice which the act refers to must of necessity refer to the notice provided for in said “uniform-policy,” and if that policy is void because the statute is unconstitutional, null and void, the same as if it had never been enacted, then there is nothing left to which the notice mentioned in the latter part of said section of the statute could apply; and if that is true, then I am unable to see how it can be logically contended that the germane part of a statute can stand when the thing to which it is germane is dead or has no existence.

The germane matter referred to in such statutes may be likened unto a satellite; that is, a matter or person attached to and dependent upon some superior matter or person, and if the superior matter or per•son is destroyed by any means whatever, then the satellite of necessity is destroyed also; for when that relation between the two is destroyed by exterminating the former, which gives birth and existence to the latter, then no longer can the satellite exist, and consequently the latter of necessity must perish with the former. So in the case at bar, if the “uniform policy” is invalid then of necessity that part of the .act, regarding the notice of loss, etc., and the waiver thereof, must of necessity pass from .the realms of the law with its parent and supporter.

CONCURRING OPINION.

LAMM, J.

As to the fourth paragraph of my learned Brother Graves’s opinion, I agree to it. Whether the language of the lawmaker in section 7030, Revised Statutes 1909, be alone considered or whether that language be broadly interpreted from the viewpoint of the reason of the thing in the light of the •spirit of the statute, the intendment of the lawmaker and the inherent nature of the subjeet-miatter, either course leads to the same conclusion, to-wit, that the section does not apply to wind insurance. True both wind and fire are blows to man and their affairs, yet fire is not wind and wind is not fire. A statute which the lawmaker has industri01isly confined to “fire insurance,” as here. may not be construed to include “cyclone and tornado insurance” or “burglar insurance” or “plate-glass accident insurance.” Read as closely as you may, there is not a particle of internal evidence in that section that the eye of the lawmaker or his solicitude took- in the latter forms of insurance in drafting his law. Eire insurance and wind insurance do not so belong in one class that the mention of one inherently includes the other. When the lawmaker intends to include wind insurance he has been astute to that end and says so. [See caption to Oliver Law, Laws of 1911, p. 267.]

Verily, men by accident or design raise fires, but however much they raise this wind or that, they by neither raise the particular kind of wind insured ..against in tornado and cyclone risks. As the danger of over-insurance in fraudulently exciting fires that sweep away the property of the innocent and guilty alike, is doubtless one main motive back of section 7030, it is apparent that no such danger springs from cyclones and. tornadoes or any other form of vis major or vis divina.

Having reached the conclusion that the case does not fall within section 7030, then, by that holding, the constitutionality of that section is no longer held in judgment in this case. The maxims are: A court has nothing to do with js not before it; a court should not judicially decide what is not judicially presented. To hold one way or the other on the constitutionality of a fire insurance law in a case where fire insurance and a fire insurance policy are not the subject-matter of litigation, is to inadvertently step aside into obiter. The decision, therefore, decides nothing. It may illuminate or persuade (as it does) but it cannot control when the question comes up in some case riding off on the point. Its only office is to mark time, it leads nowhere, it goes nowhere. If by ruling the statute constitutional in part and not constitutional in part the decision would come under the doctrine of stare decisis or res adjucata and thus be a precedent to be followed below or above, I would be inclined to agree to it,' as now advised, but as it can have no such effect, I mark myself as saying nothing on the question of constitutionality. If the thing “were done when' ’tis done then Twere well it were done quickly ” (by a side stroke, as any brother.does it). But as ’tis not done when ’tis done, then were it not well it were not done at all till the time is ripe to so do it that it will he done onee for all? “Reserve yonr fire” said the Bunker Hill officer, “till you see the white of their eyes” — that is, till you have a mark to shoot at in close range. May not judicial “fire” profit by that advice?