author: GRAVES, C. J.

text:
    THE STATE ex inf. JOHN T. BARKER, Attorney-General, v. MERCHANTS’ EXCHANGE OF ST. LOUIS.
    In Banc,
    December 21, 1916.
    1. GRAIN WEIGHING: Necessity for Violation of Statute: Quo War- ■ ranto: Valid Statute. In a quo warranto, brought by the Attorney-General against a corporation known as a grain exchange, wherein the information charges that the corporation has been guilty of-weighing grain received into and discharged from public warehouses and elevators, and of issuing weight certificates, and has thereby usurped privileges not granted to it, but expressly forbidden by statute, to which respondent in its return sots up facts which show that it is violating both the spirit and letter, of the statute, its reasons and imagined necessity for violating the statute are wholly immaterial, if the statute is a valid one. Seeming hardships are no excuse for a corporation to do things which the'State had forbidden it to do.
    2. CONSTITUTIONAL LAW: Fundamental Rules on Question of Validity. There is a legal presumption of the validity of a statute; if there is doubt as to its constitutionality, the doubt will be resolved in favor of its validity; the expediency or inexpediency of a statute is not for the courts to determine; the power of the Legislature to enact laws has no limitation except the express limitations enumerated in the Federal and State Constitutions; and the legislative power under the police powers of the State is very broad.
    3. -: Police Powers: Undefined. The police powers of the State fall within a practically undefined field. They are undefined because the field of the public health, peace, safety and welfare is a very broad one, and there are many angles from which to view it.
    4. -: -: Private Rights: Grain Inspection. Statutes which invade private rights are invalid unless they can be sustained as a reasonable exercise of the police powers of the State. A grain inspection law which does not tend toward the general welfare is invalid.
    5. -: -: Grain Weighing: By State. The statute (Sec. 63, Laws 1913, p. 354) which makes it “unlawful for any person, corporation or association other than a duly authorized and bonded State weigher to issue any weight certificate or to issue or sign any paper or ticket purporting to be the weight of any grain” received into or discharged from any public warehouse or elevator, and requiring expert grain inspectors to grade and weighmen to weigh such grain and to issue receipts or certificates certifying to both grade and weight, to be appointed by the State, was designed to provide a" disinterested agency for the protection of farmers, warehousemen, millers and bankers, and to so hedge about the grading, weighing and selling of grain as to prevent all kinds of fraud, and tends to promote the public welfare, and is a valid and reasonable police regulation. [Distinguishing State ex inf. v. Goffee, 192 Mo. 1. c. 679, 688, in which the statute there under review did not prohibit the giving of a weight certificate by persons other than State officials.]
    6. GRAIN WEIGHING: Certification: By Both State and Board, of Trade. .The said statute cannot be so construed as to permit the weighing and certification of weights by both State weighmasters and the corporation constituting the grain exchange. The law does not prohibit the owner from weighing his grain before it is sent to or put in or after it is withdrawn from a public warehouse, in order that he may have evidence to refute the prima-facie showing of the State’s certificate of weight; but the statute excludes all other except State weighmasters from giving weight certificates, and it cannot be otherwise interpreted without thwarting its purpose.
    7. -: Interference With Interstate Commerce. The statute providing for the inspection and weighing of grain at public warehouses by State inspectors and weighmasters and forbidding all other persons and corporations to certify to the grade and weight of such grain, does not interfere in any material sense with interstate commerce. It does not purport to regulate interstate commerce, but is made applicable solely to citizens of and property in the State.

      Quo Warranto.

    Judgment of ouster entered.

      John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for relator.
    (1) Every act of the Legislature, duly passed, is presumed to be valid and constitutional. The burden *s upon him who attacks its constitutionality to clearly show that it is violative of some constitutional provision. Ex parte Loving, 178 Mo. 203; State v. Cantwell, 179 Mo. 280; State v. Aloe, 152 Mo. 477; Pike v. Thompson, 144 Mo. 322; State ex rel. v. Pike Co., 144 Mo. 280; Railroad v. Andrews, 174 U. S. 96; Atkins v. Kansas, 191 U. S. 223. (2) When there is doubt as to the constitutionality of an act, it will be resolved in favor of the validity of the act. If reasonable minds might differ as to the constitutionality of legislation, it will be upheld as constitutional by the courts. State v. Cantwell, 179 Mo. 280; Ex parte Loving, 178 Mo. 321; State v. Abel, 65 Mo. 357; County v. Gris-wold, 58 Mo. 192. (3) The expediency or inexpediency of an act is a question for the Legislature and not for the courts. The judiciary cannot inquire into motives and necessities which may have superinduced the passage of the act. Brow;n v. Cape Girardeau, 90 Mo. 383; County v. Griswold, 58 Mo. 192; State v. Hayes, 49 Mo. 604; Bennett v. Boggs, 1 Baldwin (U. S.), 74; Atkins v. Kansas, 191 U. S. 207; Munn v. Illinois, 94 U. S. 131. (4) The power of the Legislature is unlimited except by express terms of the Constitution. And the Legislature" of Missouri has all .the powers that belonged to the English parliament, except where there is plain constitutional restraint upon it. Ex parte Berger, 193 Mo. 24; Ex parte Roberts, 166 Mo. 212;- Cass County v. Jack, 49 Mo. 196; Munn v. Illinois, 94 IJ. S. 124. (5) The act does not contravene the Constitution of Missouri or of the United States relative to the taking of property without due process of law, nor is it an unwarranted interference with the right of contract. Munn v. Illinois, 94 U. S. 113; House v. Mayes, 219 U. S. 270, 227 Mo. 617; Davidson v. Sadler, 33 Tex. Civ. App. 600; Wills v. Ft. Smith, 70 Ark. 221. (6) The act does not attempt to regulate interstate commerce, and therefore does not contravene the interstate commerce clause of the Federal Constitution. Goal Go. v. Louisiana, 156 U. S. 590; State v. Coal Co., 41 La. Ann. 465; Turner v. Maryland, 107 U. S. 38; Rasmussen v. Idaho, 181U. S. 198. (7) The law is a valid exercise of police power. It tends to protect the public and promote the general welfare in that it tends to prevent fraud and imposition in the weighing of grain at public warehouses and elsewhere. Coal Co. v. St. Louis, 130 Mo. 323; St. Charles v. Eisner, 155 Mo. 671; House v. Mayes, 227 Mo. 617, 219 U. S. 270; Lamar v. Weideman, 57 Mo. App. 507; Munn v. Illinois, 94 U. S’. 113; Coal Co. v. Louisiana, 156 U. S. 599; Stokes v. Corporation, 14 Wend. (N. T.) 87; Intendant v. Sorrell, 1 Jones Law (N. C.), 49; O’Malley v. Freeport, 96 Pa. St. 24; James v. Josslyn, 65 Me. 138; Whitfield v. Compress Co., 26 Tex. Civ. App. 238; Davis v. Anita, 73 Iowa, 325; State v. Tyson, 111 N. C. 687; Gaines v. Coats, 51 Miss. 335; Yates v. Milwaukee, 12 Wis. 673; 1 Blackstone’s Com. 275; Dillon, Mun. Corp., secs. 390, 39'1; (8) In passing upon the constitutionality of a given act. courts give great weight to history of contemporaneous legislation upon such questons, and the fact that such legislation has long stood upon the statute books unchallenged is strongly persuasive of its constitutionality. The law is a progressive science and adapts itself to changing conditions. The Legislature is the representative body of the Government, and,, as all governmental power emanates from the people, this representative body lias the right to declare the public policy of the State. Miller v. Oregon, 208 U. S. 420; Pátterson v. Bark Eudora, 190 U. S. 169; Coal Co. v. West Virginia, 17 L. R. A. 385; State v. Loomis, 115 Mo. 324; Holden v. Hardy, 169 U. S. 387; McLane v. Arkansas, 211 U. S. 539; Ex parte Loving, 178 Mo. 202.

      Percy Werner for respondent.
    (1) It may be conceded that every act of the Legislature, if duly passed, is presumed to be constitutional; also that the burden is on the one who attacks its constitutionality to show that it infringes upon some specific provision of the State or Federal Constitution.. But, when it is shown that the act does infringe upon specific provisions of the Constitution, and it is sought to justify it on the ground that it comes within the police power of the State, then the burden is on the one so claiming, to show that the act is justified for the reason that it comes within some well-recognized ground upon which the legislative police power rests. 1 Tiedeman on State & Fed. Control, sec. 1, p. 5; Cooley, Const. Limit (7-Ed.), p. 561; State v. Loomis, 115 Mo. 314; Ritchie v. People, 155 111. 98; State v. Cantwell, 179 Mo. 263; Ex parte Berger, 193 Mo. 29. No doubt can exist that, in the absence of such statutory provisions as those of section 63, respondent’s members would possess the right to have their grain weighed by any person, public or private,' whom they might select. Whether there has been a proper exercise of the police power is a question for the courts. Lawton v. Steele, 152 U. S. 137; State v. Railroad, 242 Mo, 361-2; State v. Loomis, 115 Mo. 307; State v. Vandersluis, 42 Minn. 129, 131; also cases cited supra under this head. (2) Section 63 of the Act of 1913 (Laws 1913, p. 372) is invalid for the reason that its terms are repugnant to sections 4 and 30 of article 2 of the Missouri Constitution, and to section 1 of the 14th Amendment to the Federal Constitution. (a) It • arbitrarily classifies those who, in any manner, deal in grain, and arbitrarily and without any just reason restricts their rights, privileges and liberty. State v. Loomis, 115 Mo. 314; State v. Julow, 129 Mo. 172; Door Co. v. Fuelle, 215 Mo. 1. c. 444; State ex-rel. v. Kimmel, 256 Mo. 641; State v. Baskowitz, 250 Mo. 82; State ex rel. v. Railroad, 246 Mo. 512; State v. Miksicek, 225 Mo. 561; Lumber Co. v. Mo. Pac. Ry. Co., 216 Mo. 675; State ex rel. v; Ashbrook, 154 Mo. 394. (b) Section 63 is contrary to tlie policy of Missouri as shown in Sec. 8431 and in Sec. 8430, R. S-1909. It deprives one dealing in grain of the very protection given by section 8431 to employees in a mine by 'having a check weighman. (c) Section 59 of the Grain Inspection Act makes the certificate of the official weigher prima-faeie evidence of the correctness of the weighing. Yet, since section 63 takes away the very means by which a buyer or a seller would be.able to overcome the prima-facie case made by the official certificate, that certificate becomes conclusive evidence, and no other “basis of settlement” is open to either buyer or seller. To give the official certificate the force of conclusive evidence would be unconstitutional. State ex inf. v. Goffee, 192 Mo. 680. (3) The requirements, prohibition and penalties of section 63 cannot be sustained as constituting a proper and legitimate exercise of the State’s police power. All the authorities cited under Point 2 do, to a greater or less extent, sustain this proposition. See, also the following: Bessette v. People, 193 111. 334; State v. Railroad, 242 Mo. 376; Fisher Co. v. Woods, 187 N. Y. 90; Grossman v. Caminez, 79 N. Y. App. Div. 15; State ex rel. v. Ashbrook, 154 Mo. 385; St. Louis v. Dreisoerner, 243 Mo. 224; Munn v. Illinois, 94 U. S. 124; Adair v. United States, 208 U. S. 172; Law-ton v. Steele, 152 U. S. 137; Ex parte Jentzsch, 112 Cal. 468; 1 Tiedeman on State & Fed. Control, secs. 1, 3, 90; Cooley, Const. Lim. (7 Ed.), p. 559. The question whether any particular statute is a reasonable and necessary exercise of the State’s police power is one to be determined by the courts. State v. Railroad, 242 Mo. 361; Lawton v. Steele, 152 U. S. 137; State v. Cantwell, 179 Mo. 263. The public interest cannot be invoked as a justification for demands which pass the limits of reasonable protection. Railroad v. North Dakota, 236 U. S. 595; State v. Cqntwell, 179 Mo. 263; State v. Vandersluis, 42 Minn. 129. And the police power ends where the public interests are not beneficially served. St. Louis v. Dreisoerner, 243 Mo. 224. (4) The question of the expediency or inexpediency of the statute, of its wisdom or necessity, is one which the court may properly consider in a case of the character of the one at bar. Section 63 deprives the persons affected by it of the exercise of natural rights. It can be justified only as a proper exercise of the State’s police power. So that the question is whether the court can say that such an enactment is necessary, and is one which is demanded by the public health, comfort, safety or welfare. Ritchie v. People, 55 111. 98; State v. Cant-well, 179 Mo. 245. (5) The Missouri Grain Inspection Act imposes a burden on interstate commerce in violation of section 8 of article 1 of the Constitution of the United States. Smith v. Alabama, 124 U. S. 465. A shipment is none the less an interstate shipment because it is transhipped on the way, or is passed through elevators in St. Louis, Kansas City or St. Joseph for the purpose of transferring the grain from one car to another. Bailey v. Railroad, 184 Mo. App. 457; Conkey v. Railroad, 183 S. W- 1111; Terminal Co. v. Interstate Com. Comm., 219 U. S. 527; Railroad Comm. v. Worthington, 225 U. S. 110; Railroad v. La. R. R. Comm., 183 Fed. 1005, 229 U. S. 336.

      Frank Hagerman for the Kansas City Board of Trade.
    (1) The act should not be construed as broadly as contended, hut the general language should be restricted within its spirit and to the power of the Legislature. Such is the clear result of the previous cases, here (State ex rel. v. Smith, 114 Mo. 180; State ex inf. v. Goffee, 192 Mo. 670; Merchants’ Exchange v. Knott, 212 Mo. 616) and in Kansas (State ex rel. Dawson v. Railroad, 87 Kan. 348). These cases accord with the general rule that criminal provisions are to be strictly construed and the biblical maxim that the letter killeth while the spirit maketh alive. (2) There is no power in the State to prevent one from weighing his own grain or hiring someone else so to do. (a) It has been here (Merchants Exchange v. Knott, 212 Mo. 635) and elsewhere (People v. Harper, 91 111. 367) held that the power of the State itself /to inspect or weigh and charge therefor rests not on any right to revenue, but can only be exercised because it is one “solely for the protection of producers, shippers and .receivers of grain and produce.” "When, therefore, the State in the exercise of that power weighs and certifies, there is no pretense of protection to those named in saying that neither of them can weigh .for himself, or that both cannot contract on the basis of other or additional weights and certificates. It would really be to the detriment is-stead of the protection of the.owner to say he could not, in addition to the State’s weights, take those of his own. Otherwise he would be deprived of the right to test the accuracy of the State weights, and they would practically become conclusive instead of prima-facie as the statute commands. That they cannot legislatively be made conclusive was decided in State ex inf. v. Goffee, 192 Mo. 680. (b) Regardless of these thoughts, it is enough to say that the question presented Was effectually disposed of in State ex inf. v. Goffee, 192 Mo. 679. (c) Regardless of that which has already been decided, a law, construed as relator construes this, would be invalid, because it would then impair the right to contract, which is fully protected by both State and Federal Constitutions. Sec. 4, art. 2, State Constitution; State v. Loomis, 115 Mo,. 313; State v. Julow, 129 Mo. 172.
   GRAVES, C. J.

This is an original proceeding in quo warranto, at the instance of the Attorney-General. The information, after formal allegations as to the incorporation of respondent, and as to certain laws of this State with reference to public inspectors and weighers of grain at all public elevators in cities having 75,000 inhabitants, charges:

“Relator further informs the court that said respondent, the Merchants Exchange of Stl Louis, has been for a great many years and is now guilty of improper uses and has unlawfully, illegally and wilfully misused and abused its corporate franchise, rights and privileges under its charter in this, to-wit: In that it is now unlawfully, wrongfully and wilfully maintaining a department, known as its weighing bureau, by and through which it is now unlawfully and wrongfully, in violation of the statutes of- this State, weighing grain received into or discharged from public warehouses and elevators in the city of St. Louis, and making charges for said weighing, and issuing weight certificates or tickets and making charges therefor. That said acts of said respondent, Merchants Exchange, are usurpations of powers, rights and privileges not conferred upon it by its corporate charter and in excess thereof, and are in .violation of the criminal statutes of this State, all to the great and permanent injury of the citizens of Missouri.
“Wherefore, relator, prosecuting in this behalf for the State of Missouri, asks that this respondent be adjudged guilty of usurping privileges and authorities not granted by the State, of Missouri in weighing the grain of the citizens of Missouri and charging therefor, and issuing weight certificates thereon, as aforesaid, and that such acts on the part of respondents be declared illegal and void and said respondent be forbidden to weigh such grain as aforesaid and charge therefor, and from issuing weight certificates thereon, and that said respondent be fined in such sum as the court thinks will punish it and cause others to refrain from doing similar acts, and for all other and further orders and relief which to the court seem meet, just and proper. ’ ’

The return is exceedingly verbose, and such portions thereof as may be required can best be noted in the opinion, in connection with points raised. This return runs the gamut from a general demurrer to the invocation of the Fourteenth Amendment of the Federal Constitution. Relator challenges the sufficiency of the return and moves for judgment on the pleadings. The facts, in the return, where facts- may he in dispute as between the petition and return, must be taken- as the facts in the case. This sufficiently outlines the case.

I. This case requires (1) a construction of our statutes, and (2) a determination of their validity. There are two vital questions met at the very threshold of the case. Section 63 of the Act of 1913, reads:

“It shall be unlawful for any person, corporation or association other than a duly authorized and bonded State weigher to issue any weight certificate or to issue or sign any paper or ticket purporting to he the weight of any car, wagon, sack or other packages of grain weighed at any warehouse or elevator in this State where duly appointed and qualified state weighers are stationed and in control of the scales under the provisions of this article, or to make any charge for such weighing, or purported weighing, or weight certificates, or tickets or purported weight certificates or tickets. And any person, corporation or officer, agent or servant of such corporation who shall do any of the acts declared by this section to be unlawful, shall he deemed guilty of a misdemeanor, and shall be punished by a fine of not. less than five hundred dollars nor more than one thousand dollars, or shall be imprisoned in the county jail, or if in the city of St. Louis, the jail of said city, not less than six months nor more than twelve months, or by both such fine and imprisonment.” [Laws 1913, p. 372.]

By the return it is admitted that the respondent has a weighing department, and that such department weighs the grain coming into public elevators and warehouses in the city of St. Louis, and further that it issues certificates of weight to the parties entitled thereto, and makes charges therefor.

With the plain letter of the law before us, and the admissions of respondent before us, it would be idle work to go into a detailed discussion of the question as to whether or not respondent is or is not violating this State statute. Its admission of record show that it is not only violating the spirit, bnt also the letter of the statute. Its reasons for such violation are immaterial, if the statute is a valid enactment. Much of the very lengthy return is taken up with statements of reasons for the admitted violation of the law, but if the law is a valid one, the imagined necessity of its violation in the alleged interest of the grain trade at St. Louis, is wholly immaterial, and beyond the real issues. '

Many laws seemingly work hardships upon persons and their business, but this is no excuse for the violation of the law. Nor is this seeming hardship an excuse for a corporation to do things, under a charter granted by the State, which things the State has forbidden by law.

The crux of this case lies in the validity or invalidity of our inspection laws. It does not lie in extraneous facts which might tend to show that the business of buying and selling grain in St. Louis would be benefited by a weighing and inspection thereof by respondent, rather than one by the State. To this vital question we proceed next.

II. We shall not discuss the fundamentals in statutory construction, when the validity of a statute is at stake, It goes without the saying that there is a legal presumption of validity; that if there is doubt as to the constitutionality of the law the doubt shall be resolved in favor of the validity 0f the legislative act; that the expediency or inexpediency of the act is not for the courts; that in Missouri the power of the Legislature to enact laws has no limitation, except the express limitations in the State and Federal Constitutions ; that the legislative power under the police powers of the State is very broad.

Of all the members of this court the writer has been most loth to extend the police powers of the State. [Vide concurring opinion in State v. Railroad, 242 Mo. l. c. 376, and dissenting opinion in State ex rel. v. Vandiver, 222 Mo. l. c. 255.] Yet in all that I may have written, the doctrine that private rights may be made subservient to the public welfare is thoroughly recognized. The respondent urges that its private rights are invaded by these statutes, and if so, then the laws are invalid, unless they fall within the practically undefined field of the police powers of the State. I say undefined, because the field of the public peace, health, safety, and welfare, is a very broad one, and there are many angles from which to view the field. Laws of the character of the ones here involved, where sustained, have been sustained upon the theory of police regulations. In other words, because they were a proper exercise of the police power of the State. We shall not attempt to defend these laws otherwise.

To determine whether or not these grain inspection laws, including the weight and certificate provisions thereof, are a proper exercise of the police powers, we should have the provisions .thereof clearly in mind, and then say whether or not such provisions tend toward the general welfare.

The act defines a public warehouseman and elevator-man, and public warehouses and 'elevators, and establishes the office of Warehouse Commissioner. It further provides for the grading and weighing of all grain into the public warehouses or elevators, and for the keeping of such grain in the grades so established.

Expert grain inspectors are' to be employed to grade the grain, and weighmen employed to weigh the grain into the warehouses and elevators. If controversy arises either as to weights or grades a disinterested committee settles the same.

These .officers are bonded for the faithful performance of duty. Warehouse receipts can only be given for grain actually weighed into the warehouse according to the grading and weighing- of these public officers, and such receipts must be registered in the department of the Warehouse Commissioner. These receipts must be numbered consecutively and no two receipts from one warehouse shall be of the same number during the space of any one year. When grain is delivered upon a receipt, the receipt must be given over to the proper officer of the State for cancellation. The issuance of receipts without the grain is made a crime. In fact, the act undertakes to so hedge in the handling of grain in these public warehouses and elevators, as to prevent all kinds of frauds. It so hedges the warehouse receipts that frauds upon banks and'other persons loaning money are protected. The whole purport of the act is for such official supervision in the principal grain markets as will protect not only- the buyers, but thé sellers of grain. In other words, it establishes a disinterested agency between the buyer and seller both as to weights and grades of the .'grain. If a wheat grower of Missouri ships "a car of wheat to St. Louis, he is not forced to take-the grading and weighing of the defendant (an association- of grain dealers and speculators), but he has the protection of the disinterested agency established' by the State, an agency duly bonded for faithful performance of duty. If a Missouri miller desires to purchase a car of grain he has the same protection. If after grain is stored in an elevator, a Missouri banker desires to loan money upon the property, he has the assurance that it has been fairly graded and weighed, and the further assurance that not only is the grain there, and of the quality stated, but that only one elevator receipt is out for that particular grain. To say that these laws do not tend to the public welfare would be a travesty upon the law. Thirty-five states of the Union have laws similar to these laws, although they may effect different commodities. Many of them are gray from age. Such laws ¿re usually directed to the chief commodities of the different states. In one it may be coal, whilst in others it is cotton, lumber, tobacco or some leading product. Section 6868, Revised Statutes 1909, reads:

“If any person other than the'inspector shall inspect any hogshead of tobacco within the city of St. Louis, or if any person occupying any store or warehouse within the city of St. Louis shall suffer or permit any person other than the inspector to inspect any hogshead of tobacco upon the premises occupied by him, such person inspecting the tobacco, and such person or persons suffering and permitting such illegal inspection, shall each be fined in the sum of one hundred dollars for every hogshead of tobacco so inspected to the use of the State, to be recovered by indictment. ’ ’

This statute, which is a part of the tobacco inspection laws of this State, has remained upon our books from 1815 to now. For over seventy years it, like a great oak of the forest, has stood unchallenged and unharmed. Similar statutes in other states date back to Colonial times. The purpose of all is the general welfare.

Nor are we scant in authority upholding such police regulations. In Coal Co. v. City of St. Louis, 130 Mo. l. c. 327, we had this ordinance under review:

“No person shall buy or sell any hay or stone-coal in this city until the same has been weighed by one of the legally authorized weighers, and a certificate of the weight thereof. given, as required in the provisions of this article; and any person violating this section shall be deemed guilty of a misdemeanor, and upon conviction thereof be fined not less than $10 for each offense.”

The ordinance was upheld by this court in an able opinion by Brace, P. J. The ordinance, it was held, was within the charter powers, but it must be noted that such charter powers have their origin in the police powers of the State. In this case Brace, P. J., said:

“By the charter of the city of St. Louis,1 the mayor and assembly have power by ordinance ‘to license, tax, and regulate retailers,’ ‘to regulate and establish the standard of weights and measures to be used in the city of St. Louis, and to provide for the inspection of the same,’ ‘and for the inspection and weighing or measuring hay or stone-coal, charcoal, firewood, and all other kinds of fuel to be used in the city of St. Louis.’ [Scheme and Charter, art. 3, sec. 26, pp. 2097 and 2098, 2 R. S. 1889.]
“The plaintiffs-as retailers of coal by the wagon load in said city are amenable to all ordinances of the city within the scope of the powers thus granted. The purpose of the ordinance is plain. It is to protect the citizen from being imposed upon by false weights and measures. To accomplish this purpose, while dealers in coal may weigh the coal which they sell on their own scales, they are not permitted to sell a wagon load of coal that has not been weighed by a weigher approved by the mayor and authorized by law to weigh the same. That it may be weighed by such a weigher and no other, and the citizen have the assurance of the; fact, weighers’ certificates of that fact are ‘furnished’ to such dealers for such weighers, and such weighers, are required to ‘furnish’ one of such certificates for each load weighed by him. Surely nothing can be found in the purpose of this municipal law, nor in the means by which it is sought to be accomplished, that is without the express power granted by the charter to the city to regulate the weighing of coal in the city, and the fact that a few cents are charged by the city for furnishing each of the certificates surely cannot be beyond the power expressly given to tax and regulate ‘retailers’ of that commodity. Whether the mayor and assembly have selected the best means, by these ordinances, to accomplish the purpose is a matter with which we have nothing to do. The power exercised being within powers granted by the charter, the plaintiffs have no cause of action. The demurrer was properly sustained, and the judgment is affirmed.’ ’

In City of St. Charles v. Eisner, 155 Mo. 671, we had up a very similar ordinance. It covers, however, coal, hay and cojm, and it required both the weighing of such commodities, and an official certificate of weights. This ordinance we upheld.

In Ex parte House v. Mayes, 227 Mo. l. c. 636, Cantt, J., said:

“That the inspection and regulation of weights and measures are within the police power of the states, and laws passed by the Legislature for such inspection and regulation requiring dealers and traders to conform thereto, and for the appointment or election of officers or inspectors thereunder, are in the nature of police regulation and not repugnant to the Constitution of the United States or of this State, can no longer be doubted. [Pittsburg Coal Company v. Louisiana, 156 U. S. 590; 30 Am. & Eng. Ency. Law (2 Ed.), 4-51, and cases therein cited.] Legislation along these lines is found in almost every country, the underlying purpose of which is to secure uniform weights and measures and to guard the people at large against defective and uncertain weights and measures and fraudulent practices connected therewith.”

I thought the statute involved in the House case entrenched upon private contracts, and dissented with all the vigor I possessed, hut only succeeded in getting two of my brothers to see the light as I saw it. The case went to the United States Supreme Court, and if I recollect aright my dissent had less effect there. Authorities from other jurisdictions are along the same lines. The purpose of State weighers is to get fair weights for all parties concerned. The purpose of certificates of weights being filed with the warehouse commissioner’s department is clearly apparent from the outline of the law which we have given. Such requirement protects the public from more than one angle. We have no doubt that under our rulings, to some of which we have not agreed, these statutes are valid.

TTT- We are cited to language used by Valuant, J., in State ex inf. v. Goffee, 192 Mo. l. c. 679 and 680. The langmage there used must be interpreted in accord with the facts of the case, and the law there under consideration.

On page 679 that distinguish~d jurist did say:

“If all that the Attorney-General claims as the official rights of the State weighmasters be conceded, it is still doubtful if quo warranto is the proper remedy. The members of the Board of Trade have a right on their own account to employ men to weigh their grain for them and to accept their certificates of weight, even if it is the duty of the State weighmasters also to weigh the same grain and to give certificates of the weights. And if the law gives to the certificates of the State weighmaster a legal effect as evidence, still if the person buying or selling the grain should prefer to have it weighed'by some other person and to base his business transaction in reference to it on the unofficial rather than the official certificates, fie would, have a right to do so. Such a course would not prevent the state weighmaster from performing his official duty or deprive him of his fees.”

But it must he recollected that the statutes there under discussion had no such provisions as we have in section 63 of the Act of 1913, supra. 'He did, however, in the concluding portion of his ppinion (192 Mo. l. c. 688-689) get to the meat of the instant case. He there said:

“The amendatory Act of March 9, 1893, which we are now considering, does not purport to alter or amend any section of the law as it theretofore existed in reference to State grain inspection; it only adds other sections providiug for weighing the grain that by the law theretofore existing was subject to inspection.
“It may be that the General Assembly, if it had been understood that grain inspection was by the law, as it then was, limited to public warehouse grain, would have so amended that law as to include other grain, but that is mere conjecture; we only know that, whether from misapprehension or disinclination, the General Assembly did not so amend this law, and we must take the law as we find it.
“We have no doubt of the constitutional authority of the General Assembly in the exercise of the State’s police power to throw around persons who ship their grain to market in this State the protection that official inspection and official weighing can give. Without such protection the shipper is at the mercy of those who handle his grain in the great markets, and in the ordinary course of business he has no means, or at least no convenient or adequate means, of verifying the classification and weight of his grain. It is no infringement of the shipper’s constitutional rights to tax his grain with reasonable charge for (this official service, because whether a particular individual desires to avail himself of the service or not, such service is a wholesome control over the conduct of the business, and the State has the right to interfere for the protection of the public. And besides, there is nothing that could make the markets of this State more attractive to shippers than a reputation for intelligent and honest inspection and weighing.
“But whether the police power of the State should be exercised or not in .such matters, and if exercised to what extent, are questions in the first instance for the General Assembly and not for the courts. In the law governing the case before us the General Assembly has gone no further in the exercise of this police power than to provide for State inspection and State weighing of grain going into or out of public warehouses. •
“We rest our judgment therefore in favor of the respondents, not on the ground that the General Assembly could not, under the Constitution, pass a law requiring inspection and weighing of grain in the great markets of this State other than such as goes into or out of a public warehouse, but on the ground that the General Assembly has not done soA

The italics are ours. The law then under consideration did not specifically prohibit the giving of a weight certificate by persons other than state officials, as does the law now. The opinion, therefore, as to the rights of boards of trade under the then laws has but little weight in determining the questions in this case. Nor is there any thing in that opinion which thwarts a holding to the effect that the present inspection laws are valid. On the contrary the concluding portion of such opinion, quoted, supra, would indicate that such exercise of the police power would be valid.

We are also cited to Merchants Exchange v. Knott, 212 Mo. l. c. 635. A reading of that case, and of the case of People v. Harper, 91 Ill. l. c. 367, cited and quoted from therein, will show that the questions involved and discussed are wholly foreign to the ones here involved.

The questions here are, should the respondent be precluded from issuing weight certificates, or any paper or ticket purporting to be the weight of any car, wagon, sack, or other packages of grain received at the public warehouses and elevators in- St. Louis, where our inspection laws apply? Or shall respondent be permitted to make any charges for weighing or issuing weight cej> tificates or tickets? These are the things forbidden by section 63 of the Act of 1913 (Laws 1913, p. 372) and are the things the State seeks to prevent the respondent from doing. And, these are the things which respondent admits it has been doing. This statute forbidding persons, other than the bonded officers of this State, from doing these things, had in view the general welfare under repeated rulings of this court. Such statutes were intended for the protection of producers, shippers and receivers of grain and hay, as well as other parties interested therein as owners, pledgors, or pledgees. We are unable to say that the statute is an improper exercise of the police powers of the State. If so, the respondent should be prevented from issuing any weight certificates or any paper or ticket purporting to be the weight of any car, wagon, sack or other packages of grain weighed at any public warehouse or elevator in the city of St. Louis, and from charging for any weighing or weight receipt for any grain at such public warehouse or public elevator, where State weighers are stationed under the laws of this State.

IV. It is suggested by able counsel that the act should be so construed as to permit the weighing and certifying of weights both by the State and the respondent. The statute will not bear such a construction. It was clear]N the legislative intent to make the State the weighmaster, and to exclude others from giving weight tickets or certificates. The very purpose of the law would be thwarted in the construction sought. Of course the law in no way prohibits owners of grain from weighing thpir grain before it is sent to or put in a public warehouse, to the end that they may know what they have, nor does it prohibit such owners from weighing it after it is withdrawn. So that the argument that no opporunity is afforded to have evidence to refute the prima-facie showing of the State’s certificate of weight, is without foundation. By this we do not mean that such owners may force such previous or subsequent weighing upon scales provided for by the law for the use of the State authorities. The State authorities are entitled to proceed with their work without hinderance, or interference in any respect.

V. Nor do we think these laws interfere in a material sense with interstate commerce. The police powers of the State has full recognition hy the Federal government, and unless the laws passed in pursuance of such powers unduly interfere with the commerce clause of the Federal Constitution -they have been upheld by the United States Supreme Court. [Pittsburg Coal Co. v. Louisiana, 156 U. S. 590; Sherlock v. Ailing, 93 U. S. 99; Munn v. Illinois, 94 U. S. l. c. 135; Turner v. Maryland, 107 U. S. 38.]

These laws do not purport to regulate interstate commerce. They are made applicáble solely to citizens of the State, and property in the State. In the Sherlock case, supra, the U. S. Supreme Court well said:

“And it may be said, generally, that the legislation of a State, not directed against commerce or any of its regulations but relating to the rights, duties, and liabilities of citizens, and only indirectly and remotely affecting the operations of commerce, is of obligatory force upon citizens within its territorial jurisdiction, whether on land or water, or engaged im commerce,- foreign or interstate, or in any other pursuit.”

What has been said by the courts with reference to elevation of grain in transit being a part of the transportation, and therefore the rates charged, under the control of the Interstate Commerce Commission, are foreign to the questions involved here. This contention is therefore ruled against the respondent.’

We are therefore forced to conclude that the respondent should be adjudged guilty of the charges of usurpation in the information contained, i. e., (1) weighing the grain of the citizens of Missouri and charging therefor, and (2) issuing certificates of weight for grain deposited in the public warehouses and public elevators in the city of St. Louis. These things the law forbids and the respondent has no legal right to do. To this extent a judgment of ouster is entered.

AH concur, except Walker, J., not sitting.


source: Caselaw Access Project

author: BOND, J.

license: Public Domain

text:
    Ex parte EDWARD J. FLEMING v. J. J. WENGLER, Constable.
    In Banc,
    December 21, 1916.
    1. GAMBLING: Betting on Horse Race: Misdemeanor. The mere act of two persons betting priv-ately with each other on the result of a horse race is gambling, but the offense is only a misdemeanor.
    2. CUSTODIAN OF BETS: Horse Racing: Felony. The term “custodian” used in the statute (Laws 1907, p. 232; Sec. 4749, R. S. 1909) embraces all persons who receive and hold money as the stakeholder of bets laid upon the result of a horse race; and the Legislature, in enacting said statute, intended to create a new and distinct offense, punishable as stated therein, which may include imprisonment in the penitentiary, if said statute is valid.
    3.. -: Wisdom of Statute. The courts cannot question the wisdom of the Legislature in enacting a statute which makes the act of the stakeholder in becoming the custodian or depositary of money wagered on a horse race a felony, although the act of the bettors is only a misdemeanor. The Legislature, so long as it keeps within constitutional limits, can enact any law which seems wise to it.
    4. -: Title to Statute. A title to an act which, among other things, recites that it is “an act prohibiting . . . the receiving as custodian of money wagered upon contests of skill, speed or power of' endurance of man or beast” is broad enough to forecast a provision in the body of the act making it a felony to become the custodian or depositary of money wagered on the result of a horse race.
    5. -:-: Enactment at Special Session. Section 4749, Revised Statutes 1909 (Laws 1907, p. 232), whose purpose was to suppress immediately the evil of race-track gambling, was within the purposes specified in the call made by the Governor for the reassembling of the Legislature in special session.
    6. -: Interstate Commerce. The statute (Sec. 4749, R. S. 1909) which makes it a felony for any one to become the custodian of money wagered on a horse race was not an attempt to regulate interstate commerce, and the question of whether or not communications by telephone constitute interstate commerce is not involved in a prosecution charging defendant with having received within this State as custodian the money of two others wagered on a horse race, in violation of said statute.

      Habeas Corpm.

    Application dismissed.

      T. J. Roioe and Thos. J. Rowe, Jr., for petitioner.
    (1) It is no offense to be tbe custodian of a bet or wager upon a trial of skill, speed or power of endurance of man or beast. Ex parte Roberts, ,157 Cal. 472. Tbe Supreme Court of California, in tbe Roberts case, held that a person, who, without consideration, gain, hire or j reward, became the custodian or depositary of ten dollars in money bet by two .persons with each other upon the result of a horse race then about to take place in the State of California, was guilty of no offense and that a person held in custody on a complaint charging him/with so doing is entitled to be discharged upon writ of habeas corpus. In the Roberts case the petitioner was charged with a violation of section 337A of Penal Code of California enacted in 1909 (Stat. 1909, p. 21), which is in all essentials, except penalty, a re-enactment of section 351 .of the Penal Code of New York. Section 351 of the Penal Code of New York is substahtially the same as Sec. 4749, R. S. of Missouri, 1909. People ex rel: v. Langan, 196 N. Y. 260; People ex rel. v. McLaughlin, 128 App. Div. 599, 113 N. Y. Supp. 188. (2) Sec. 4749, R. S. 1909, in so^-far is it makes it a felony to be the custodian of any money, bet or wager, is unconstitutional and void, because the Legislature under the Governor’s proclamation and message had no authority to pass same. The power of the General Assembly in extra session is limited by section 55, article 4, Constitution of Missouri. See also in this connection article 5, section 9, and the decisions thereunder as follows: Wells v. Railroad, 110 Mo. 286; St. Louis v. Withaus, 16 Mo. App. 247; State v. Railroad, 253 Mo. 642; House Journal, Forty-fourth General Assembly, extra session.

      John T. Barker, Attorney-General, and Kenneth G. Sears for respondent.
    (1) Sec. 4749, R. S. 1909, condemns “any person who becomes the custodian or depositary of any money, bet or wager or to be bet or wagered, upon any trial or contest of skill, speed or power of endurance of man or beast, which is to be made or take place within or without this State.” The meaning of that provision is clear. It condemns any person who does the act specified, regardless of whether he does it. for hire or privilege.. State v. Cummings, 248 Mo. 509. (2) The title is sufficient, and the matters contained in the act relate to a single subject-matter. State v. Burg'doerfer, 107 Mo. 1; State ex inf. v. Delmar Jockey Club, 200 Mo. 56; State v. Brodnax & Essex, 228 Mo. 53; Ex parte Herman, 45 Tex. Crim, 343. (3) The special session of the General Assembly in 1907 had sufficient authority to .enact section 4749. Senate and House Journals for 1907 (Extra session); State v. Woolen, 128 Tenn. 456.
   BOND, J.

I. The petitioner, who is in custody under a warrant issued by a justice of the peace upon a charge of violating section 4749 of the Revised Statutes of 1909,' sued out a habeas corpus in this court, praying' for his. discharge. - The statute under which the petitioner was arrested, so far as it need be quoted, is, to-wit:

“Or any person who becomes the custodian or depositary of any money, bet or wager or to be Ybet or wagered, upon any trial or contest of skill, speed or power of endurance of man or beast which is to be made or take place within or without this State . . . shall, on conviction, be adjudged' guilty of a .felony and shall be punished by imprisonment in the penitentiary for a term of not less than two years nor more than five years or by imprisonment in the county jail for a term of not less than six months or more than one year, or by a fine of not less than $500, or by both such fine and imprisonment.” [Laws 1907, p. 232; now R. S. 1909, sec. 4749.]

It was stated in the affidavit for the warrant that two' persons made a bet with each other of five dollars apiece on the result of a horse race in St. Louis County, and that petitioner knowingly became custodian of the ten dollars so wagered, thereby committing a felony

II. The mere act of two persons betting privately with each other on the result of a horse race is gambling, but the offense is only a misdemeanor and not a felony. [Ullman v. St. Louis Fair Assn., 167 Mo. l. c. 283, and cases cited.]

The section under review was presented to this court in State v. Cummings, 248 Mo. 509, where it was held that the term “custodian” embraced all persons who received and held money as the stakeholder of bets laid upon the result of a horse race, ‘as the affidavit shows was done by petitioner. Unless, therefore, the act under review was illegally enacted, the petitioner must -be remanded to the custody of the officer who’ held him in charge under the process issued by the justice of the peace, although to do so presents the singular incongruity of an intention on the part of the Legislature to make the stakeholder of two bettors guilty of a felony in so doing, whereas the principals who made the bet were only guilty of a misdemeanor; for it has been distinctly held by Judge Gantt, in State v. Oldham, that when the Legislature enacted an anti-bookmaking law similar to this, it had no intention to prohibit “even betting on horse races,” but intended to prohibit the evils of pool-selling and bookmaking and the maintenance of gambling houses, with books, devices and paraphernalia to accomplish those purposes. [State v. Oldham, 200 Mo. l. c. 555, 556.] It is not for us, however, to question the wisdom of the Legislature in so doing, unless the enactment in question is prohibited either by the Constitution of the State or the Constitution of the United States. The lawmaking body is one of the three co-ordinate heads of our government and unless restricted by constitutional provisions, state or national, may enact any laws which seem good to it.

Under the authority of State v. Cummings, 248 Mo. 509, we must conclude that the Legislature in prohibiting" any one to be the stakeholder of two private bettors, intended to create a new and distinct offense punishable as stated in the concluding paragraph of the above statute.

III. It is insisted also that the act in question is violative oh the provision of the Constitution relative to its title, in that it failed to point out therein the definite subjects of legislation contained in the body kill- We are unable .to assent to that view. The title of the act in question is to-wit: “Crimes and Punishments: Book-Making and Pool-Selling. An act prohibiting book-making, pool-selling, registration of bets, or the receiving as custodian of money wagered upon contests of skill, speed' or power of endurance of man or beast, and prescribing a-penalty therefor, with an emergency clause.”

The contents of the bill are, in substance, a reenactment of the previous bill forbidding book-making and pool-selling, adopted at the general session of the Legislature with slight changes, all of which are within the general forecast afforded by the title. We, therefore, hold that it was not passed in violation of this constitutional provision.

IY. It is insisted by the learned counsel for petitioner that the act in question is not within the purposes specified in the call made by the Governor for the re-assembling of the Legislature after the adjoummert^ ^s regular term. A careful consideration of the terms of his proclamation and the purpose had in view to suppress instantly the evil of race-track gambling without waiting until the measure passed by the -Legislature at its regular term should take effect, satisfies us that the bill passed at the called session was within the general intendment of the subject of legislation submitted by the proclamation of the Governor.

V. Neither do we think that the act in question was an attempted exercise by the Legislature of the control of interstate commerce. The only argument adduced in support of that view is that telephone communications have been held to be transactions in interstate commerce. Without passing on that point it is enough to say that the particular clause of the act in question presented by this application for habaes corpus does not relate in any way. to the matter of telephonic communications, but is confined solely to the question of whether or not petitioner was the custodian of a sum of money agreed by two bettors to be wagered upon a forthcoming horse race.

It results that the petitioner in this cause is remanded to the custody of the officer and the application for habeas corpus is dismissed.

All concur, except Graves, G. J-, not sitting.


author: WOODSON, J.

text:
    THE STATE ex inf. Attorney-General v. ARKANSAS LUMBER COMPANY et al.
    In Banc,
    December 21, 1916.
    1. SUPREME COURT: Jurisdiction: Garnishment: In Aid of Original Writs. The Supreme Court has constitutional power to issue original writs in quo warranto, and to try the issues therein and enforce any judgment it may render, and such jurisdiction carries with it all incidental powers necessary to enforce its judgment; and having in a quo warranto proceeding assessed a fine against a corporation for an abuse of its franchise, it has power to enforce its judgment by the use of the statutory writ of garnishment, even against a creditor of the offending corporation who was not a party to the original proceeding.
    -: --: -7: Trial by Jury. It does not follow that because if a garnishment were brought in the circuit court the' garnishee would be entitled to a trial by jury, the Supreme Court has no jurisdiction to hear an ancillary statutory garnishment proceeding in aid of its judgment in quo warranto. Whenever a court has jurisdiction of the main subject-matter of a cause, as the Supreme Court does in quo warranto against corporations for a violation of the anti-trust laws, that fact' gives it jurisdiction over all the incidents thereto. The jurisdiction of the Supreme Court of the ancillary proceeding, such as garnishment to enforce a fine in a quo warranto proceeding against a corporation, cannot be ousted because if such ancillary proceeding were tried in a circuit court the garnishee would be entitled to a trial by jury, but if tried in the Supreme Court he cannot have a jury.

      Ancillary Proceeding in Quo Warranto.

    Motion overruled.

      Jones, Hocker, Sullivan & Angert for defendants, in support of Motion to Dismiss Garnishment.
    (1). This court has no original jurisdiction of a garnishment proceeding, for the reasons: (a) Its jurisdiction is appellate only except as otherwise prescribed by the Constitution. Constitution, art. 6, secs. 2 and 3. (b) The original jurisdiction here is limited to high prerogative writs of a governmental nature, and garnishment is not such. Constitution, art. 6, sec. 3; Yail v. Dinning, 4A Mo. 215. (c) Garnishment is purely a statutory remedy, entirely unknown to the common law. Hardware Co. v. Lang, 51 Mo. App. 152; Mfg. Co. v. Mill Co., 79 Mo. App. 158; Bank v. Barnett, 98 Mo. App. 179; 9 Ency. PI. & Pr., p. 809; 20 Cyc. 978. (d) The General Assembly cannot create the statutory proceeding of garnishment,- so as to .give this court jurisdiction thereof, because the original jurisdiction of this court is constitutional and can neither be enlarged of restricted by statute. Blunt v. Shepard, 1 Mo. 219; Foster v. State, 11 Mo. 61; Vail v. Dinning, 11 Mo. 215; State v. Flentge, 19 Mo. 188; State ex inf. v. Bland, 111 Mo. 557; State ex inf. v. Townes, 153 Mo. 106; State ex inf. v. Standard Oil Co., 218 Mo. 317. (e) A garnishment proceeding is a legal proceeding by the judgment creditor against the proposed garnishee, and not a. mere supplementary proceeding; Wilson v. Bailroad, 108 Mo. 601. (f) Issues arise.therein upon which the garnishee is entitled to a jury trial. Holker v. Hennessy, 111 Mo. 527. (2) The judgment of this court assessing a fine against the principal debtor was beyond the powers of the court in a quo warranto proceeding, (a) Sec. 2635, B. S. 1909, authorizing a fine in quo warranto, is by its terms limited to proceedings in the circuit court. B. S. 1909, sec. 2635; State ex rel. v. Stewart, 32 Mo. 381; State ex rel. v. Buskirk, 13 Mo. 113; State ex rel. v. Townsley, 56 Mo. 113;. State ex inf. v. Yallins, 110 Mo. 529. (b) The power of the English courts to assess a fine upon information in quo ivarranto rests upon the Statute of Anne, and does not exist in the United States except where that statute has been adopted. State v. Kearn, 17 E. I. 400; Bank v. State, 1 Black (Ind.), 272; State v. Gleason, 12 Fla. 251; 23 Am. & Eng. Ency. Law (2 Ed.), p. 628. And that statute has no application to the original jurisdiction of this court. State ex rel. v. Stewart, 38 Mo. 381. (c) The constitutional jurisdiction in quo ivarranto does not include the power to assess a fine. State v. Gleason, 12 Fla. 25; Bank v. Bank, 1 Black (Ind.), 272; State ex inf. v. Messmore, 14 Wis. 119; Newhouse v. Alexander, 110 Pac. (Okla.) 1122. The first of the cases here cited expressly holding, under a constitutional grant of jurisdiction precisely like our own, that there is no jurisdiction to assess a fine, was expressly approved by this court in State ex inf. v. Investment Co., 142 Mo. 335, and again in State ex inf. v. Standard Oil Co., 218 Mo. 246. (d) Even under the English law, and under the Statute of Anne, proceedings by information in the nature of quo warranto against corporations did not authorize a fine; the only proper judgment being ouster, not affecting the title of the corporation to its assets. Bank v. Bank, 1 Black (Ind.), 272; High, Ex. Bern., sec. 755; .Spelling, Ex. Eem. (2 Ed.), sec. 1881. (e) If the power exists here to assess a-fine in quo warranto, it represents the only arbitrary example of uncontrolled and uncontrollable power known to our law; and no such was ever intended by the framers of our Constitution.

      John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for plaintiff, in opposition to Motion to Dismiss Garnishment,
    (1) This court has original jurisdiction in quo warranto. Constitution, see. 3, art. 6. (2) A grant of jurisdiction to a court carries with it the necessary and incidental powers essential to effectuate it. A court’s power to apply a remedy is coextensive with its jurisdiction over the subject-matter. A court may entertain proceedings ancillary to the judgment, for jurisdiction once acquired is not exhausted by the rendition of the judgment, but continues until the judgment is satisfied, and includes , the power to issue all necessary processes and take all proper proceeding for its enforcement. State ex rel. v. Assurance Co., 251 Mo. 296; State v. Boyd, 251 Mo. 476; In re Sanford, 236 Mo. 692; Phelps v. Reserve Fund L. Assn., 112 Fed. 453; Riggs v. Johnson County, 6 Wall. (U. S.) 197_; Goodrich v. Staples; 2 Cush. (Mass.) 258; McGinty v. Richmond, 27 La. Ann. 606; 11 Cyc. 677. (3) Garnishment is not a new suit. It is but an incident or an auxiliary of the judgment, and a means of obtaining satisfaction of the same by reaching the defendant’s credits. Tinsley v. Savage, 50 Mo. 141; Chicago Herald Co. v. Bryan, 195 Mo. 595; Goodman v. Gordon, 61 Mo. App. 691; State ex rel. v. Hughes, 135 Mo. App. 135; Chapman v. Tancey, 173 Mo. App. 145; Newland v. Wayne County, 85 Mich. 151; Wilson v. Pennoyer, 93 Minn. 348; 20 Cyc. 979. (4) This court had jurisdiction of the subject-matter and of the person of the defendant in the original action, therefore, the garnishee will not be heard to question the validity ’of the judgment therein. When a court has jurisdiction of the subject-matter and of the person of defendant, any judgment rendered hy the court is conclusive as against the garnishee. Drake on Attachments, sec. 695; Ins. Co. v. Cohen, 9 Mo. 445; Hedrix v. Hedrix, 103 Mo. App. 43; Booneville v. Wertheimer, 29 Mo. 258; Hagerman v. Sutton, 91 Mo. 528. (5) The statutes of this State expressly confer power on all courts having jurisdiction in quo warranto to impose fines as well as award an ouster from the franchise or office in such proceedings. Secs. 2631, 2635, 10304, R. S. 1909; Laws 1871-72, p. 66; Sec. 1, p. 632, G. S. 1865. The Legislature had the power to prescribe the character of the remedy, and the statutes fixing the remedy do not enlarge or limit the jurisdiction of this court. State ex rel. v. Ice Co., 259'Mo. 618; State ex rel. v. Railroad, 240 Mo. 35; State v. Merry, 3 Mo. 278. The power to impose a fine in quo warranto existed at common law. State ex rel. v. Ice Co., 259 Mo. 618; State v. Bemoudy, 36 Mo. 281; State v. McBride, 4 Mo. 303; Bailey on Quo Warranto, secs. 315, 332; High on Extraordinary Eemedies, sec. 746,'747, 752, 758. This court has repeatedly asserted its right to impose fines as well as award judgment of ouster in quo warranto proceedings against corporations for violations of the laws of our State. State ex inf. v. Armour Pkg. Co., 265 Mo. 152; State ex inf. v. Lumber Co., 260 Mo. 317; State ex rel. v. Ice Co., 259 Mo. 618; State ex rel. v. Ice Co., 246 Mo. 176, 223; State ex inf. v. Harvester Co., 237 Mo. 416; State ex inf. v. Oil Co., 218 Mo. 464; State ex inf. v. Armour Pkg. Co., 173 Mo. 393- (6) This court cannot now determine whether or- not the issues in this garnishment ease will raise a question for a jury, but if such issues do arise, this court can either call a jury here, or certify it to a circuit court to try such issues and report them back to this court. State . ex rel. v. Townley, 56 Mo. 107; Chisholm v. Georgia, 2 Dali. 419.
   WOODSON, J.

The facts of this ease are few and may be tersly stated in the following language:

“The State, upon information of the Attorney-General, instituted her proceeding quo warranto in this court several years since against various incorporated companies, foreign and domestic, charging sundry violations of her anti-trust statutes and seeking the forfeiture of the corporate franchises of the alleged defenders (i. e., the forfeiture of corporate existence as to domestic companies and of the right to continue in business in the State as to the strangers)".
“After much travail by litigants, counsel, commissioner and court, this proceeding culminated, so far as concerns the Bradley Lumber Company, in the assessment here of a fine of $50,000, to be levied on its possessions, as well as of a judgment of ouster from its corporate franchise. [Vide, 260 Mo. l. c. 317.] The fine thus levied was not paid. An execution was issued out of this court and returned unsatisfied. Thereupon the plaintiff applied to this court by proper proceeding for a citation against the defendant Bradley Lumber Company to discover assets; upon a hearing of this matter before a commissioner, information was obtained which led the State to believe that the garnishees herein are indebted to said defendant. Thereupon an alias execution was issued upon request of plaintiff, and the marshal of ' this c'ourt was directed to garnish the garnishees herein upon said execution. This was accordingly done.
“The garnishees appear before this court and move the court to dismiss the garnishment proceedings, for the reasons:
“First: That this court is without jurisdiction to hear, try or determine an original proceeding in garnishment.
“Second: Because garnishees are entitled to a trial by jury upon issues of fact which may arise in the cause.
“Third: Because there is no valid judgment against the defendant,' Bradley Lumber Company.”

Counsel for the garnishees first insist that this court has no original jurisdiction of a garnishment proceeding; and assign as their reason therefor, that its jurisdiction is appellate only, except as otherwise provided by the Constitution, and cite in support thereof sections 2 and 3 of article 6 of the Constitution.

“Sec. 2. The Supreme Court, except in cases otherwise directed by- this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the State, under the restrictions and limitations in this Constitution provided.

“Sec. 3. The Supreme Court shall have a general superintending control over all inferior courts. It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari and other original remedial writs, and to hear and determine the same. ’ ’

In the sense in which counsel for the garnishees speak, they are correct in saying that the jurisdiction of "this court is appellate only, except-to issue the original writs named in said third clause of the Constitution; and that a garnishment proceeding is statutory and is not one of the original writs mentioned in said constitutional provision is equally true, as shown by all of the authorities.

It is also true in the sense in'which counsel contend that the Legislature has no power to confer original jurisdiction upon this court to try garnishment proceedings; but that is not the legal proposition the Attorney-General here presents for determination.

The Attorney-General’s position is that this court, by express authority of said section three of the Constitution, has jurisdiction to issue writs of quo warranto, and to try and enforce the judgments it may render in any such case; and that such grant of jurisdiction to this court carries with it the necessary and incidental powers necessary to enforce its judgments and decrees. That is the well-settled law of this State and others, as decided in the following cases: State ex rel. v. Assurance Companies, 251 Mo. l. c. 296-302; Shull v. Boyd, 251 Mo. l. c. 476-477; In re Sanford, 236 Mo. l. c. 692; Phelps v. Mutual Reserve Fund L. Assn., 112 Fed. 453; Riggs v. Johnson County, 6 Wall. (U. S.) l. c. 187, 197; Goodrich v. Staples, 2 Cush. (Mass.) 258; McGinty v. Richmond, 27 La. Ann. 606; 11 Cyc. 677, 678.

It cannot be logically contended in the absence of a statute to the contrary, that the application of a common law, equitable or statutory remedy to enforce the judgment or decree of a court having jurisdiction to render the same is an assumption of additional powers. The power of a court to render a judgment is quite different from adopting an existing remedy to enforce the same after its rendition. Even a statute affecting a remedy may be perfectly valid, while if it- affects the rights of the parties in the matter which the remedy is designed to accomplish, it might be void for constitutional reasons. Such statutes are numerous, and the books are full of cases drawing this distinction.

The case of State ex inf. Attorney-General v. Arkansas Lumber Co., supra, out of which this proceeding grew, was an original proceeding brought in this court by quo warranto, to oust the defendants from doing business in this State. This court unquestionably had jurisdiction to hear and determine that case, and as it has repeatedly held, had the power to pronounce the judgment or decree therein rendered; therefore, if it be true, as previously stated, that a grant of jurisdiction to a court carries with it the necessary and incidental powers essential to effectuate it, then the form of the remedy resorted to in order to enforce that judgment in so far as the judgment debtor is concerned, is wholly immaterial, and the mere fact that an auxiliary proceeding in the nature of a garnishment proceeding, as this is, is resorted to in this court in order to reach money or property of the judgment debtor in the hands of these third persons, no more concerns them than if a similar proceeding had been brought against them in the circuit court to enforce said judgment of this court, just so long as the proceedings do not deprive them of any of their individual property, and is confined to that of the judgment debtor found in their possession.

But counsel for the garnishees insist that the form in which this proceeding is to be tried is of great importance to them in that if tried in the circuit court they would be entitled to a jury, but not so if tried in this court.

Both of those propositions might well be conceded, but it would not from that fact necessarily follow that this court has no jurisdiction to hear this ancillary proceeding; but upon the contrary the law seems to be well settled that whenever a court has jurisdiction of the main subject-matter of a cause, that fact gives it jurisdiction over all of the incidents thereof. [See eases before cited.]

Practically the same contention was made by counsel for defendants in the case of State ex inf. v. Standard Oil Co., 218 Mo. 1.

There it was contended that because the anti-trust laws of the State made the formation of pools, trusts, combinations, etc., of commodities a crime, the defendants were' entitled to a trial by a jury.

Under those facts this court held that while it had no original jurisdiction over criminal prosecutions, a proceeding upon information in the nature of a quo warranto to forfeit their franchises for a violation of the law, and to impose penalties for that viulation, was a civil suit, and that this court had jurisdiction to hear the cause, and that it was immaterial whether or not the defendants were also guilty of a crime, which would subject them to criminal prosecution upon an indictment before the circuit court and a jury.'

That case followed previous rulings of this court, ánd it has been followed in subsequent cases; consequently it must be considered as settled that because there are involved in this class of eases certain issues bf fact, which if tried in the circuit court would entitle a defendant to a trial by a jury, is no reason of authority for holding they are entitled to a jury trial in this court,-involving similar facts.

Both courts are created by the Constitution, and to the extent mentioned they have co-ordinate jurisdiction over the matters -mentioned, and if the case is tried in the circuit court they might be entitled to a trial by a jury, but not so, if the trial takes place in this court.

Moreover, it seems illogical to me to say that a court has jurisdiction over the main subject-matter of an action, but has no jurisdiction over the matters, that are merely incidental thereto. This proceeding being in the nature of an equitable garnishment, seeking to follow and subject the assets of the Bradley Lumber Company, a trust fund for the payment of its debts, alleged to have been transferred by it to the garnishees in order to evade the payment of the judgment of this court, pronounced against it in the case of State ex inf. Attorney-General v. Arkansas Lumber Co., supra, falls squarely within the ruling of the Supreme Court of the United States in the cases of White v. Ewing, 159 U. S. 36; Morgan’s Co. v. Texas Central Ry. Co., 137 U. S. 171, and Rouse v. Hornsby, 161 U. S. 588.

In the first case cited the facts thereof were, substantially as follows:

“The Cardiff Coal & Iron Company, a corporation of Tennessee, becoming insolvent, a creditors’ bill was filed in the circuit court for the Eastern District of Tennessee by George F. Bosworth, a citizen of Massachusetts, and a judgment creditor of the company, setting forth the insolvency of the company, the wasting of its assets, etc., and praying for a sale of the property, the collection of its choses in action, the appointment nf a receiver, and for an injunction. In pursuance of the prayer of this bill the appellee, Ewing, was appointed receiver of the company, ordered to take possession of its assets, and to manage and protect the same for the benefit of the creditors under orders from the court. All creditors was ordered to file their claims.”

After the receiver qualified, said court ordered him to bring suit in the same court against certain debtors of the company, one of whom was White, the plaintiff in error, he having been in debt to the company for a sum less than $2000. The^ point was made that the United States court had no jurisdiction of the subject-matter of the suit, for the reason that it was for a sum less than $2000. In overruling the objection to the jurisdiction of the court, the Supreme Court of the United States said:

“The circuit court obtained jurisdiction over the Cardiff Coal & Iron Company by the filing of the original creditor’s bill by Bosworth, a citizen of Massachusetts, and by the appointment of a receiver, and any suit by or against such receiver, in the course of the winding up of such corporation, whether for the collection of its assets or for the defense of its property rights, must be regarded as ancillary to the main suit, and as cognizable in the circuit court, regardless either of the citizenship of the parties, or of the amount in controversy: [Freeman v. Howe, 24 How. (U. S.) 450, 460 ; Krippendorf v. Hyde, 110 U. S. 276; Dewey v. West Fairmont Gas Coal Co., 123 U. S. 329; In re Tyler, 149 U. S. 164, 181; Root v. Woolworth, 150 U. S. 401, 413; Rouse v. Letcher, 156 U. S. 47, 49.]”

The other two cases announce the same rule.

• As previously stated, the ease at bar is an ancillary proceeding to the original cause of the State ex inf. v. Arkansas Lumber Co. et al., supra, and this court having had jurisdiction of the parties to and of the subject-matter of that suit, one of which was the Bradley Lumber Company, it necessarily follows that this court has jurisdiction of the subject-matter of the parties to this ancillary proceeding, although the garnishees were not parties to the original suit; neither was White a party to the original suit of Bosworth v. Cardiff Coal & Iron Co., in which Ewing was appointed receiver.

There are other propositions discussed by counsel, but the views stated render it unnecessary for us to discuss them.

For the reason stated, the motion to dismiss the garnishment proceeding is overruled.

All' concur, except Blair, J., not sitting.


author: FARIS, J.

text:
    THE STATE ex rel. J. HAHN BAKERY COMPANY et al. v. THOMAS L. ANDERSON, Circuit Judge.
    In Banc,
    December 21, 1916.
    1. APPEAL: Due Process of Law. Any person entitled by statute (Sec. 2040, R. S. 1909) to take an appeal may take the same at any time during the term at which the judgment or order complained of was rendered; and to deny him such right is to deny him due process of law, for to deny to some persons a right which is allowed to others similarly situated is to deny them due process of law.
    2. -: Denial After New Trial Allowed and Dismissed. After a verdict for defendant has been returned, and a motion for a new trial has been sustained on the ground that the verdict is contrary to the weight of the evidence and thereupon plaintiff dismisses the. case without the knowledge or consent of defendant, defendant’s application for an appeal from the order granting a new trial cannot be denied.. In other words;' a plaintiff, after a trial had and verdict rendered for defendant, which verdict is set aside upon plaintiff’s motion for a new trial, cannot take a nonsuit pending the term at which the trial was had, against the consent of defendant who prays an appeal from the action of the court in granting the new trial.

      -:-: Right of Dismissal. A plaintiff will not be permitted tp dismiss, to discontinue or to take a nonsuit, when by so doing he will obtain an advantage and defendant will be prejudiced or oppressed or deprived of a just defense; and where a dismissal is attempted without defendant’s consent, an appeal to determine the controverted matter of whether or not defendant was hurt by the order from which the statute allows him an appeal cannot be prevented by such dismissal.
    Mandamus.
    Writ granted.

      Earl M. Pirkey for relators.
    (1) A nonsuit cannot be taken after the cause is finally submitted to the jury. R. S. 1909, sec 1980. (2) A plaintiff cannot dismiss his suit so as to deprive defendant of a right already acquired in the litigation. Browning v. Chrisman, 30 Mo. 353; In re K. & 0. Ry. Co. v. Senter, 83 Mo. App. 182. (3) A defendant may appeal at any time during the term at which a new trial is granted to plaintiff. R. S. 1909, secs. 2038, 2040.

      Adolph Abbey, Wendell Berry and Eaunileroy, Cullen c& Ray for respondent.
    (1) Plaintiff has the absolute right to dismiss his case at any time before the case is submitted. Sec. 1920, R. S. 1909. (2) After a verdict has been set aside and a new trial granted, or after a reversal and remand of the cause for a trial de novo, a plaintiff may voluntarily terminate his - suit as upon an original proceeding. 6 Ency. PI. & Pr. 842; Randalls v. Wilson, 24 Mo. 76; Pence v. Gobbert, 67 Mo. App. 496; Edwards v. Edwards, 22 111. 123; Railroad v. Hooper, 105 Fed. 550; Hollingsworth & Vose v. Foxbaurough, 50 NV E. (Mass.) 1037; Sheldon v. Van' Vleck, 106 Til 45; Preachers’ Aid Society v. England, 106 111. 123; Hume v. Schintz, 42 S. W. (Tex.) 543; Railroad v. Berry, 98 Pac. (Kan.) 204; Commonwealth v. Smith, 98 Mass. 10; Commonwealth v. Wallace, 108 Mass. 12; State v. Kansas, 31 Kan. 509; Lanyon v. Chesney, 200 Mo. 1; Oil Co. v. Billne & Co., 87 S. E. (N. C.) 938; "Wood v. Mortman, 85 Mo. 298. (3) Where the trial court is satisfied that the verdict is against the weight of the evidence, it is within the discretion as well as the duty of the court to set it aside and the action of the court will not be disturbed on appeal. An appeal in such a case would be mere vexation and delay. Stetzler v. Railroad, 210 Mo. 711; Lorenzen v. Railroad, 249 Mo. 187; Land & Imp. Co. v. Epright, 265 Mo. 218; Miles v. Haney, 190 Mo. App. 220; Dorset v. Chambers, 187 Mo. App. 276; Rodan v.,Transit Co., 207 Mo. 406; Parker v. Cassingham, 130 Mo. 348.
   FARIS, J.

This is an original proceeding by mandamus,. whereby it is sought to compel respondent, as the judge of division 7 of the circuit court of the city of St. Louis, to reinstate a certain cause at one time pending in said court, and to grant an appeal therein, from an order sustaining a motion for a new trial.

The facts out of which this instant case grew run thus: At the December term, 1915, there was pending in division 7 of the circuit court of the city of St. Louis, in which division respondent sat as judge, a certain cause wherein Abraham Spivack and another were plaintiffs, and relators herein were defendants, and wherein the sum in dispute was $10,000. The above action coming on for trial before a jury,, a verdict was rendered in favor of defendants on January 28, 1916. (For brevity and clarity we will hereinafter refer to the parties in the original suit as “plaintiffs” and “defendants,” and to the parties in the instant proceeding as “relators” and “respondent,” respectively.) Within the allotted time thereafter, to-wit, on February 1, 1916, plaintiffs in said cause filed their motion for a new trial, which was taken under advisement, and carried over by the learned respondent to a day in the February term, 1916, to-wit, to March 6, 1916, on which latter date the respondent sustained the motion aforesaid and granted to plaintiffs a new trial, on the ground that the verdict of the jury was against the weight of the evidence. Thereafter on the 7th day of March, 1916, without the knowledge or consent of defendants in said cause, and in their absence and in the absence of their counsel, plaintiffs came into court and dismissed said cause. Thereafter, at the same term in which the motion for a new trial was sustained and the dismissal of said cause was had by plaintiffs, and on the 17th day of March, 1916, defendants therein (who are relators herein) after due notice in such behalf had been serve'd on plaintiffs, came into respondent’s court and filed their motion to reinstate said cause, to the end that they might (as they prayed they might be allowed to do) appeal from the order granting the new trial. Relators filed with said motion for reinstatement of the case and for appeal thereof, a proper affidavit for appeal. Respondent refused to reinstate said cause, or to allow an appeal therein, holding that plaintiffs had the right to dismiss the cause after the sustaining of a motion for a new trial thereof, even though defendants might during the same term of court desire to appeal from the action of the court in such behalf.

The return of respondent admits the facts to be substantially as we set them out. Relators thereupon moved for judgment upon the pleadings, and the case is at issue upon the single point whether a plaintiff, after trial had and verdict rendered, which verdict is set aside upon motion, may take a nonsuit pending the term at which the trial was had, against the consent of a defendant who prays an appeal from the action of the court in granting such new trial.

The precise point here mooted seems to be one of first impression in this State, and to be likewise unique by its rarity in other jurisdictions. While we have a statute which upon a casual reading might seem to cover the case, we are led to suspect that it does not; since we observe that both relators and respondent quote and urge this statute as furnishing a fairly satisfying reason why plaintiffs did and why they did nol have the right to take a nonsuit. In this state of the briefs we may well be excused for entertaining doubts whether a statute thus so confidently relied on by both parties, furnishes an answer to the question mooted. The statute thus urged upon our attention reads thus:

“The plaintiff shall be allowed to dismiss his suit or take a nonsuit at any time before the same is finally submitted to the jury, or to the court sitting as a jury, or to the court, and not afterward.” [Sec. 1980, R. S. 1909.]

We are of the opinion that the above section must be construed in the light, of the facts and circumstances existing, and must be modified if need be, by a consideration of other well-settled principles of law. Two of these principles we think settle this case beyond cavil; they are (a) that by our practice ancl by the terms of our statute (Sec. 2040, R. S. 1909), any party authorized, and caeteris paribus entitled to take an appeal, may take the same at any time during the term at which the judgment, or order complained of, was rendered; in short, he has the whole of the current term within which to appeal, and (b) if a party entitled otherwise to an appeal, be by construction of a statute prevented from the exercise of a right in such behalf given to aT others in similar cases, there arises by such construction a refusal of due process of law to him who thus is deprived of' his right. [State v. Guerringer, 295 Mo. l. c. 416.] In the latter case, apposite to the point last herein made, we said:

“For while the right of appeal is not essential to due process of law (Reetz v. Michigan, 188 U. S. l. c. 508), yet if an appeal be allowed to some persons and not to all persons similarly situated, such deprivation of the right to an appeal is equivalent to the denial of due process of law, for due process of law and the equal protection of the laws are secured only when cthe laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.’ [Duncan v. Missouri, 152 U. S. l. c. 382.]”

■ Manifestly, if it should be otherwise ruled, it would be always within the power of .a plaintiff who has been cast by verdict, but who had succeeded in his motion for a new trial, to irrevocably and inevitably affirm the' action of' the trial court in sustaining such motion by the mere, expedient of a hasty dismissal (such as occurred here) and the payment of the accrued costs, and — as was likewise done here — on the next, or a subsequent day within the year, refile the cause of action and proceed. These considerations make it fairly manifest that under the conditions and state of facts here existing, we must construe the statute (when invoked after one trial and one successful motion for a new trial in the same term) as if it read “provided, such dismissal will not operate to deprive the defendant of the right to appeal during the term.” For surely .when the defendants won before a jury, and the court cut the victory from under their feet by sustaining a motion for a new trial, on the ground that the weight of the evidence lay against the verdict, defendants had the right by a solemn- statute to appeal to this court and take our opinion upon the-points: (a) Whether the court nisi was correct in his ruling and (b) whether defendant should be further vexed by the litigation; which litigation was settled if the jury’s finding on the facts was right and the court nisi was wrong.

In an early case upon a point measurably analogous, it was said by this court: “No nolle prosequi or dismissal of a party ought to be allowed when it will produce any derangement in the rights of the defendants, deprive them of a legal defense, or subject them to increased difficulties or liabilities.” [Browning v. Chrisman, 30 Mo. l. c. 357.]

It will be seen that the statute contains no specific authority for doing what was done here. While it permits the plaintiff to wholly dominate and manage his lawsuit, it yet contains nothing which will allow plaintiff to do this in snch wise as will work injury to the rights of the defendant.

We are cited by respondent to the case of Wood v. Nortman, 85 Mo. 298, as conferring authority for the procedure herein followed by the court nisi. While it is true that this Nortman case contains .a dictum which, if read without reference to the context, and without regard to. the facts held in judgment in that case, would furnish’ some color to respondent’s contention, it is not in point here because no question of the right to test by an appeal the correctness of the action of the trial court was involved, and “because [and this reason is written in the court’s opinion] it was understood by the court and the parties before judgment was rendered, that the plaintiff might have the right of entering a nonsuit.” [Wood v. Nortman, 85 Mo. l. c. 303.] Neither does the case of Lanyon v. Chesney, 209 Mo. 1, militate in any serious degree against the view we here take. There are likewise dicta in the latter case which, when read outside their context, seem to uphold the contention of respondent. The question there up for judgment went to the right of a plaintiff to dismiss an action (wherein defendant had filed a counterclaim), regardless of the consent of the counterclaimant. The case rode off upon the finding that the counterclaim had not been so timely filed as to prevent plaintiff from exercising his- otherwise plenary right of dismissal.

The case of Randalls v. Wilson, 24 Mo. 76, also afield’ from the facts there held in judgment, seems to lend color to respondent’s position. But that was a case wherein both of the plaintiffs (cast as herein upon the trial) were infants when the action was commenced by them. When judgment was rendered against them one of them was still an infant. The case rode off upon the theory that since the judgment was an entirety, and since one plaintiff was an infant when it was rendered, it was utterly and wholly void as fio both plaintiffs, and that it was the plain legal duty of the trial-court to set it aside, and that defendant therein was therefore in no wise injured by plaintiffs taking a nonsuit after the setting aside of the judgment.

If it were or could be made absolutely certain that tbe action of the trial court in granting a new trial in the case out of which the instant proceeding grew, in no wise hurt relators, then there would be some authority in the Randalls case, supra, for respondent’s position. If we could hold out of hand from something which appears upon the record that respondent’s ac”on in setting aside the verdict was as a matter of law indisputably correct, then we could say that it was impossible for relators to have been prejudiced by the dismissal of the case. But that is not this case; we are holding that relators are entitled to. their appeal, so that the controverted matter of whether they were-hurt may be fully examined and determined by us. The principle involyed in this holding is that invoked in all jurisdictions. [14 Cyc. 306, and cases cited; 6 Ency. Pl. & Pr. 842; 9 R. C. L. 194.] And this general rule is thus stated by Cyc., supra:

“While a plaintiff may dismiss any claim where such dismissal will not prejudicially affect the interests of defendant, he will not be permitted to dismiss, to discontinue, or to take a nonsuit, when by so doing he will obtain an advantage and defendant will be prejudiced or oppressed, or deprived of any just defense.”

It follows that the 'alternative writ of mandamus heretofore issued herein should be made absolute. Let this be done.

All concur.