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    E. R. DARLINGTON LUMBER COMPANY v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division One,
    February 25, 1909.
    1. CONSTITUTIONAL STATUTE: Two Views. If the statute is susceptible of two constructions, one of which renders the law unconstitutional and the other valid, the latter construction will be adopted and the statute upheld.
    2. -: Absurd Construction. A construction that will make the statute absurd and unreasonable will not be given, for it is to be presumed that such was not the legislative intent.
    3. -: Legislative Intent: Cognate Statute. The legislative intent and purpose is the thing to be sought, when there is doubt as to the meaning of the language used. That doubt may arise from the statute itself, or from cognate statutes, which must be considered in connection with it.
    4. -: Demurrage Charges: Free Time: Sixty Thousand Pounds Capacity. The statute providing that the “consignees on whose order a car or cars of less than sixty thousand pounds capacity have been placed,” should have forty-eight hours free time for unloading, and seventy-two hours free time “for unloading those of sixty thousand pounds or greater capacity,” does not refer to the capacity of the cars to haul sixty thousand pounds more or less, but it means the weight of the freight actually hauled. Whatever may be the capacity of the car, the consignee has forty-eight hours of free time and no more if the lumber shipped weighs less than sixty thousand pounds, and seventy-two hours free time if the lumber weighs sixty thousand pounds or more. In spite of the'unfortunate use or the word “capacity,” this holding, is enforced: 1st, because a contrary view would lead to an absurdity; 2nd, it is the clear legislative intent; and 3rd, it is in harmony with cognate statutes, fixing freight charges by the.hundred pounds.
    5. -: -: -: -: Constitutional. So interpreted, the Demurrage Act of 1905, Laws 1905, p. 109, is reasonable, does not fix an arbitrary and unreasonable classification, and is constitutional and valid.
    6. -: -: -: -: Unreasonable Classification. If sections 5 and 6 of the Act of 1905, Laws 1905, p. 109, mean that forty-eight hours free time are to be alloted to consignees of cars of less than sixty-thousand pounds capacity, in total disregard of the weight of the shipment, and that seventy-two hours free time are to be allowed to consignees of cars of sixty thousand pounds or more, in total disregard of whether or not they haul sixty thousand pounds of lumber, then they make an unreasonable and absurd classification of shippers, and therefore would be unconstitutional. But that is not their meaning. The meaning is that forty-eight hours of free time is to be allowed to cars having less than sixty thousand pounds of lumber in them, and seventy-two hours to cars having sixty thousand pounds or more, whatever may be the capacity of the cars.
    7. -: -: Interstate Shipments: Replevin. Where defendant pleaded that it was entitled under the Demurrage Statute to larger demurrage charges than the shipper tendered before replevying his car of lumber, and bases its defense on that statute, whether pleaded in so many words or by its legal intendment, it cannot contend that the statute does not apply to interstate shipments.
    8. -: -: -: -: Unreasonable Tender. And where defendant pleads to plaintiff’s replevin to recover the lumber, that plaintiff tendered only nine' dollars demur-rage charges whereas defendant was entitled to ten, it does not invoke the application of the Demurrage Statute to the interstate shipments, unless it further pleads that the amount tendered was not a reasonable sum or that the Interstate Commerce Act fixed the demurrage charges at a different sum.
    Appeal from St. Louis City Circuit Court. — Row. Daniel G. Taylor, Judge.
    Reversed and remanded.

      Martin L. Clardy and Henry G. Herb el for appellant.
    (1) Inasmuch, as none of the lumber in any of these cars weighed as much as sixty thousand pounds, plaintiff was only entitled to forty-eight hours free time, notwithstanding the lumber may have been loaded in cars of sixty thousand pounds capacity or greater. There ought to be no difficulty in so construing this act. That appears to be the common-sense view of the language of the act. It is not the “capacity” of the car that is unloaded, but the lumber in the car. The word “capacity” was evidently used in this act in the same sense that the -word “cargo” is used in marine shipping contracts, and was intended to mean that the car should- he laden to its full carrying capacity, viz., sixty thousand pounds, before the shipper would be entitled to an additional day’s time for unloading. Flanagan v. Demarest, 3 Robertson (N. Y.) 181; Kreuger v. Blanch, 5 Ex. L. R. 183; Sargent v. Reed, 2 Strange 128; Holy Trinity Church v. United States, 143- U. S. 459; United States v. Kirby, 7 Wall. 486; Carlisle v. United States, 16 Wall. 152; State v. Clark, 5 Dutcher (29 N. J. Law) 98; Kane v. Railroad, 112 Mo. 39; Harrington v. Railroad, 71 Mo. 384; Proctor v. Railroad, 64 Mo. 122; Verdin v. St. Louis, 131 Mo. 163; Vondiest v. Railroad, 77 S. W. 633; State v. Crenshaw, 22 Mo. 458; Railroad v. Schulte, 91 S. W. 806 ; Guy v. Pond, 101 U. S. 434; Railroad v. Dougherty, 91 S. W. 772; Sams v. Railroad, 170 Mo. 175; Johnson v. Railroad, 104 Mo. App. 588; State ex inf. v. Term. Assn., 182 Mo. 284; Railroad v. Smith, 173 U. S. 694. (2) Are the parts of this demurrage act in controversy here constitutional? We contend that they are not for the reason that the legislators have chosen an arbitrary standard, which has no just relation to the purpose for which the law was enacted. In other words, the mere selection of a sixty-thousand-pound car as a standard for determining the time that a shipper shall have to unload the contents of the car, regardless of its weight, has no reasonable grounds for a basis, and is discriminatory in its tendencies, and is, therefore, obnoxious to the. equality clause of the fourteenth amendment to the Constitution of the United States. Railroad v. Ellis, 165 U. S. 165; Deppe v. Railroad, 36 Iowa 55; Railroad v. Smith, 173 U. S. 694; Stone Co. v. Railroad, 13 Int. Com. Rep. 569; Yick Wo v. Hopkins, 118 U. S. 373; State ex rel. v. Ashbrook, 154 Mo. 395. (3) That this Demurrage Act does not apply to the interstate shipments in controversy is settled by the decision of onr Supreme Court in State ex inf. v. Railroad, 176 Mo. 713. See McNeill y. Railroad, 202 U. S. 559; Wilson Produce Co. v. Railroad, 14 I. C. C. 173; Interstate Stock Yards Co. v. Railroad, 99 Fed. 472.

      George V. Reynolds for respondent.
    (1) It is presumed that the Legislature intended to impart to its enactments such a meaning as will render them operative and effective and to prevent persons from eluding and defeating them. Accordingly, in case of any doubt or obscurity the construction will be such as to carry out these objects. Black on Interpretation of Laws, sec. 49, p. 106; The Emily and the Caroline, 9 Wheat. 381; Simmons v. California Powder Works, 7 Colo. 285; Thompson v. State, 20 Ala. 54; Opinion of the Justices, 22 Pick. 571. (2) Every act of the Legislature is presumed to be constitutional until the contrary is shown, and doubts are resolved in favor of the validity of the act. Black on Int. of Laws, p. 93. (3) The words of a statute are to be taken in their popular meaning unless technical terms or words of art. (4) Regulation of demurrage charges by a State is within its power. An agreement or State legislation affecting interstate commerce merely indirectly, is valid. Hopkins v. United States, 171 U. S. 594; Steamship Co. v. Portwarders, 6 Wall. 31; Munn v. Illinois, 94 U. S. 113; Railroad v. Iowa, 94 U. S. 163; Peck v. Railroad, 164 U. S. 177. (5) A State can enact such regulations, at least with respect to a railroad corporation of its own creation, as are not directed against interstate commerce, but which only incidentally or remotely affect it, and are reasonably designed to subserve the convenience of the public. Railroad v. Ohio, 173 U. S. .308. (6) The Interstate Commerce Commission has no jurisdiction over demurrage charges fixed by a State after delivery to the consignee has been completed.
   GRAVES, J.

Plaintiff, a manufacturing business corporation under the laws of Missouri, brings this action in replevin to recover from defendant, a railway corporation under the laws of Missouri, the possession of certain specifically described lumber of the alleged aggregate value of $1,037.50, and contained in four cars, specifically described in the petition. In the complaint it is not only alleged that the defendant had wrongfully detained said lumber, but that “said detention is wrongful, malicious, willful and oppressive,” and judgment is asked for the recovery of said lumber, together with $1,000 for the wrongful detention thereof, and also for $3,000 punitive damages and costs.

By answer the defendant first specifically denied that it had or at the institution of the suit was wrongfully detaining said lumber, but pleaded the facts as to the detention of the lumber by it. The answer then pleads the facts specifically as to each carload of the lumber. Two of the cars were intrastate shipments, and two of them interstate shipments.

As to the first car in question, the answer says:

“Now comes said defendant and for its second amended answer, by leave of court filed, to the petition in the above-entitled cause, denies that at the time this suit was instituted, or at any time, it wrongfully detained from plaintiff any of the lumber described in said petition.
“Avers that it is a common carrier of freight for hire in the city of St. Louis, and State of Missouri, and is also engaged in switching cars containing freight delivered to it by connecting common carriers at St. Louis, Missouri, for delivery to consignees thereof on private switch tracks connecting industries, located on or near its tracks, such as plaintiff’s; that on the 17th day of June, 1905, it received at St. Louis, Missouri, for delivery to plaintiff on its private switch track in its lumber yards in said city, at Chouteau and Yandeventer avenues, from the Terminal Railroad Association of St. Louis, a connecting common carrier, a carload of yellow pine lumber in car No. 18894, St. Louis & Southwestern Railroad, which had been shipped to plaintiff by the consignor thereof from Pineville, Louisiana, a station on the Louisville Railway & Navigation Company’s railway, which said car had a capacity of 60,000 pounds and the lumber therein weighed 45,000 pounds; that on receipt of said car loaded with lumber, from the Terminal Railroad Association of St. Louis as aforesaid, this defendant served a written notice on the plaintiff herein in the city of St. Louis, on the 17th day of June, 1905, and before 5 o’clock p. m. of said day, informing said plaintiff that said car of lumbér was on hand in its yards at St. Louis, and was ready to be delivered to plaintiff at that time for unloading, or other disposition, and that at said time the switch track in plaintiff’s yard aforesaid was occupied by other cars, so that a delivery of said car to plaintiff, on said track, at that time, could not be effected by defendant, and that unless directions for disposition of said car were given by plaintiff to this defendant within forty-eight hours after 7 a. m. of June 21, 1905, a demurrage charge of one dollar per day, or fraction of a day, would be assessed and charged against said plaintiff, by this defendant, for the detention and use of said car by plaintiff; that it was unable to place said car on plaintiff’s said switch track on account of said track being occupied by other cars consigned to plaintiff from the time said notice was given to plaintiff until July 1, 1905, when plaintiff requested defendant to place said car on said switch and tendered to it nine dollars, being for nine days, at the rate of one dollar per day, for the demurrage charges accrued thereon from 7 a. m., June 21, 1905, to July 1, 1905, inclusive, on a basis of seventy-two hours free time. That defendant refused to accept said nine dollars in full payment ■ and satisfaction of the demurrage charges that had accrued on said car and deliver said car to plaintiff, because it claimed that there were ten days’ demurrage charges due it on said car at the raté of one dollar per day from said 7 a. m., June 21, 1905, to July 1, 1905, inclusive, on the basis of forty-eight hours free time, under its rules and the laws of the State of Missouri, then in force; that plaintiff refused to pay said demurrage charges to defendant, and defendant refused to deliver said car to plaintiff until said demurrage charges were paid, and said-car remained in the possession of defendant until taken out of its possession on July 11, 1905, by the sheriff of the city of St. Louis, in pursuance of the order of delivery issuéd by this Honorable Court in this case; that from the first day of July to said 11th day of July, 1905, there had accrued on said car, demurrage charges of seven dollars, being for seven days at the rate of one dollar per day, which plaintiff also refused to pay defendant. ’ ’

We shall omit what is said of the other three cars for the same questions of facts are pleaded and the same laws invoked. That is to say, for all practical purposes the allegations may be said to be the same. Such differences as may occur to be necessary will be noted later, if required.

The answer then thus concludes:

“For further answer and defense herein, defendant says sections 5 and 6 of the act of the General Assembly of the State of Missouri entitled, “An act to regulate demurrage and storage charges, and to prevent delays in furnishing cars, and in the transportation and delivery by railroads of freight other than grain, live stock, coal or coke from the mines or ovens, and perishable freight,” approved April 12, 1905 (Laws 1905, page 109), under which plaintiff claimed, and claims, the right to the possession of the lumber aforesaid, are unconstitutional and void; that said sections of said act are in violation of and in conflict with section 1, article 14, of the Constitution of the United States in that they deprive this defendant of its property without due process of law, and in that they deny to the defendant the equal protection of the laws.
‘ ‘ That said sections of said act are in violation of and in conflict with section 30', article 2, of the Constitution of the State of Missouri, in that they deprive this defendant of its property without due process of law.
“That said sections are in violation of and in conflict with section 53, of article 4, of the Constitution of the State of Missouri in that they grant to a class of persons of which plaintiff was one, a special exclusive right, privilege and immunity.
“That said sections are in violation of and in conflict with sections 12, 14 and 23 of article 12 of the Constitution of the State of Missouri, in that they cause a discrimination, which is prohibited by said sections of said Constitution in this, that they give to a shipper or consignee, whose lumber is transported in a ear of 60,000 pounds or greater capacity, and which lumber weighs less than 60,000, twenty-four hours longer free time to unload it, than they give a shipper or consignee of lumber of the same weight which is transported in a car of less than 60,000 pounds capacity. ‘
“That said sections of said act are in violation of and in conflict with sections 1, 2 and 3 of a statute of the United States, entitled, “An Act to Regulate Commerce” (commonly known as the Interstate Commerce Act), approved February 4, 1887 (24 U. S. Statutes at Large, pages 379, 380), in that they cause a discrimination, which is prohibited by said sections of said statute in this, that they give to a shipper or consignee whose lumber is transported in a car of 60,000 pounds or greater capacity, and which lumber weighs less than 60,000 pounds, twenty-four hours longer free time to unload it, than they give a shipper or consignee of lumber of the same weight if transported in a car of less than 60,000 pounds capacity.
“That said sections of said act are in violation of and in conflict with that part of section 8 of article 1 of the Constitution of the United States which gives to Congress the power to regulate commerce among the several States, and unlawfully imposes a burden on such commerce.
“Wherefore, defendant denies that it is liable to plaintiff for, or on any account, or in any amount, as claimed by the plaintiff in said petition.”

To this answer the following demurrer was filed:

“Now again comes plaintiff and demurs to the second amended answer filed in said case — and for cause, says:
“First. The matter and facts in said second amended answer, and in' each and every paragraph thereof, constitute no defense in law to plaintiff’s action.
“Second. The matters and facts set out in each and every paragraph of said second amended answer show on their face that the defense of the defendant is contrary to the provisions of an act of the General Assembly of the State of Missouri, entitled, “An act to regulate demurrage and storage charges, and to prevent delays in furnishing cars and in the transportation and • delivery by railroad of freight other than live stock, coal and coke from the mines or ovens and perishable freight,” which act was approved April 21, 1905, and was in effect on and after June 16, 1905, and particularly contrary to sections 5 and 6 of said act.
“Third. The matters and facts in the first paragraph of said amended answer constitute no defense in law to defendant, for the reasons set out in the second ground of demurrer.
“Fourth. The matters and facts in the second paragraph of said second amended answer constitute no defense in law to defendant for the reasons set out in the second ground of demurrer.
“Sixth. The matters and facts in the fourth paragraph of said second amended answer constitute no defense in law to defendant for the reasons set out in the second ground of demurrer.
“Seventh. The matters and facts in the fifth paragraph of said second amended answer constitute no defense in law to defendant for the reasons set out in the second ground of demurrer.
“Eighth. The matters and facts set out by said defendant in that part of its second amended answer in which it claims that sections 5 and 6 of the act of the General Assembly of the State of Missouri of April 12, 1905, are unconstitutional and void and that said sections of the said act are in violation of and in conflict with section 1, article 14, of the Constitution of the United States in that said sections deprive the defendant of its property without due process of law and that they deny to the defendant the equal protection of the law, constitute no defense at law to this action.
“Ninth. That part of said second amended answer which pleads that said sections of said act are in violation of and in conflict with section 30, article 2, of the Constitution of the State of Missouri, in that they deprive defendant of its property without due process of law, constitutes no defense at law to this action.
“Tenth. That part of said second amended answer which sets up and claims that said sections are in violation of and in conflict with section 53, article 4, of the Constitution of the State of Missouri in that they grant to a class of persons of which plaintiff is one, a special exclusive right, privileges and immunity, constitutes no defense at law to this action.
“Eleventh. That part of said second amended answer that sets np and claims that the said sections of said act are in violation of and in conflict with sections 12,14 and 23, of article 12, of the Constitution of the State of Missouri, in that they cause a discrimination which is prohibited by said sections of said Constitution, in that they give to a shipper or consignee whose lumber is transported in a car of 60,000' pounds or greater capacity, and which lumber weighs less than 60,000 pounds, twenty-four hours longer free time to unload it than Lthey give a shipper or consignee of lumber of the same weight which is transported in a car of less than 60,000 pounds capacity, constitutes no defense at law to this action.
“Twelfth. That part of said second amended answer which sets up and claims that said sections of said act are in violation of and in conflict with sections 1, 2 and 3 of the act of Congress entitled, “An act to regulate commerce,” commonly known as the 'Interstate Commerce Act,’ in that they cause a discrimination which is prohibited by said sections, constitutes no defense at law to this action.
“And plaintiff demurs to that part of said second amended answer which sets up 'that said sections of said act are in violation and in conflict with that part of section eight of article one of the Constitution of the United States which gives to Congress power to regulate commerce among the several States, and unlawfully imposes a burden on said commerce,’ for the reason that the same constitutes no defense to this action.
“Whereon plaintiff prays the judgment of the court. ’ ’

This demurrer was sustained, and the defendant refusing to plead further, the cause was submitted to the court without the intervention of a jury. The court found the issues for the plaintiff as to the right of possession of the lumber, and in favor of plaintiff for one cent damages and for costs, and so reads the judgment. Prom this judgment the defendant appeals.

Defendant says there are the following three questions presented by the record:

“First. Did the court err in holding that the plaintiff was entitled to seventy-two hours free time to unload the cars in controversy, simply because the lumber was loaded in cars of sixty thousand pounds capacity or more, although the lumber in none of the cars weighed as much as sixty thousand pounds?
“Second. Are the parts of the Demurrage Act in controversy here constitutional?
‘ ‘ Third. Does this Demurrage Act apply to interstate shipments?”

These three questions we take in their order.

I. The first point raised, supra, calls for a construction of the following sections of the Act of 1905, commonly known as the Demurrage Law:

“Section 5. Shippers or consignees on whose order a car or cars of less than sixty thousand pounds capacity have been placed for loading or unloading, shall have forty-eight hours for loading or unloading such cars, and seventy-two hours for loading or unloading those of sixty thousand pounds or greater capacity, computing time from first- seven o’clock a. m. after such car or cars have been placed subject to such order and thereafter a demurrage charge of not more than one dollar per car per day, or fraction of a day, may be assessed and collected on all such cars respectively as have not been tendered to the railroad company, with shipping instructions for loaded cars, within said respective periods of forty-eight and seventy-two hours of free time: Provided, however, should such shipper or consignee fail to begin loading or unloading within forty-eight hours after the expiration of free time the railroad company may consider the empty car or cars released, and may assess and collect on every car, loaded or empty, one dollar covering the demurrage then due; and railroad companies shall not be compelled to furnish cars for future shipments to persons in default as to the payment of the demurrage charges herein provided for until such demurrage charges shall have been paid; and provided, further, that when by reason of delay and irregularities on the part of the railroad company in filling orders for cars, or in the transportation or delivery of freight, cars are bunched in excess of the capacity of the shipper to load as indicated in his application or of the consignee to unload, such shipper or consignee shall have separate and distinct periods of free time in which to load or unload, as the case may be, the car or cars specified in each separate application, or in each bill of lading or way bill of different dates.
“Sec. 6. When the consignee or his agent is personally served with notice of the arrival of freight at or before 5 o’clock p. m., of any day, free time shall begin at 7 o’clock a. m. of the day after such notice has been given: Provided, further, that when consignors ship goods consigned to order, but express in their bills of lading or shipping directions the name of a person at destination whom to notify, it shall be the duty of the railroad company to give such notice to such party in the same manner as if the shipment had been made directly to him.”

The controversy arises out of the use and meaning of the word “capacity” as found in section 5, supra. Plaintiff contends that the word refers to the car itself without reference to the weight of the load in the car. In other words carrying plaintiff’s contention to its extreme limit, it is contended that if the car used has the capacity to hold and carry 60,000 pounds of freight, and such car is in fact loaded with but 1,000 pounds of freight, the consignee would have the legal right to demand seventy-two hours in which to remove that 1,000 pounds of freight, before being subjected to the payment of demurrage at the rate of one dollar per day, for additional time.

On the other hand, the defendant claims that the word “capacity” as in the statute used, has reference to the load or weight of the load in the car, rather than to the actual carrying ability, strength or dimensions of the car.

So that this point stands solely upon what was the legislative intent in the use of this word in this connection, and when taken in conjunction with other cognate statutes as to freight rates.

By section 1193, Revised Statutes 1899, we have a classification of freight. Under this section lumber, lath and shingles in carloads are given a class to themselves, i. e., class Gr. By section 1194, Revised Statutes 1899, as amended by Act of 1905, Laws 1905, p. 102, the maximum freight rates are fixed. As to lumber, lath and shingles, the law reads:

“Class Gr, in car loads of 30',000 pounds minimum weight, not exceeding five cents per one hundred pounds for the first twenty-five miles, and not exceeding one-half cent per hundred pounds for the second twenty-five miles, or fractional part thereof, and not exceeding one-half cent per hundred pounds, for each additional twenty-five miles, or fractional part thereof.”

It should be borne in mind that the Demurrage Law was passed at the same term of the Legislature and went into effect on the same day as did these maximum rate laws, i. e., June 16, 1905. It will also be noticed that the freight rate is fixed at so much per hundred pounds, and that it remains the same whether 30,000 or 60,000 pounds of freight is shipped in the car. With the laws before us the chief purpose of the court is to find and declare the meaning and legislative intent thereof. If the statute (or the words thereof) is susceptible of two constructions, one of ■which renders the law unconstitutional, and the other makes it valid, the court should adopt the latter. In such case a construction should he given as will uphold the law. [Lewis’s Sutherland on Statutory Construction, sec. 516; State ex rel v. Railroad, 105 Mo. App. 213; Sedalia ex rel. v. Smith, 206 Mo. 1. c. 363; Swift v. Topeka, 43 Kan. 671, and cases cited.]

Nor should we give the statute such construction as would make it unreasonable and absurd, for it is to he presumed that such was not the legislative intent. And after all the legislative intent and purpose is the thing to he sought, when there is doubt as to the meaning of the language used. This doubt may arise from the statute itself or from cognate statutes, which must be considered therewith. [Perry v. Strawbridge, 209 Mo. 621, and cases cited; Thompson v. State, 20 Ala. 1. c. 62.]

In the latter case it is well said: “If it be said the letter of the statute is opposed to this view, and that the restriction against opening the road through an enclosure, while there is a crop growing thereon, is general, we reply that an interpretation should never be adopted which would defeat the purpose of the statute, if any reasonable construction may be given to it (9 Wheat. 381); and that the literal interpretation of an act is not always that which either reason or the law approves. The inartificial manner in which many of our statutes are framed, the inaptness of expressions frequently used, and the want of perspicuity and precision not infrequently met with, often require the court to look less at the letter or words of the statute than at the context, the subject-matter, the consequences and effects, and the reason and spirit of the law, in endeavoring to arrive at the will of the law-giver.’ ’

It is a matter of common observation that railway companies mark in large figures upon their cars the estimated capacity thereof. This estimated capacity is no doubt determined by tbe strength and size of the car.

Now did the Legislature intend that the consignee should have seventy-two hours time in which to unload 30,000 pounds of lumber, the minimum load under the act, when such lumber was loaded in a car having a carrying or estimated capacity of 60',000 pounds, and only forty-eight hours to unload 30,000 pounds of the same kind of lumber, when loaded in a car having a carrying or estimated capacity of only 40.000 pounds'? Such is plaintiff’s contention. In other words, looldng through plaintiff’s glasses, the consignee, receiving two cars of lumber of the character above described, must unload the 30,000 pounds of freight out of one in forty-eight hours, but to unload the same 30,000 pounds of freight from the other he is to have seventy-two hours. Presumably he is allowed, in plaintiff’s view of the law, the additional twenty-four hours to gaze at the big white words, “Estimated Capacity, 60,000 pounds,” painted upon the side of the car. It requires no more time to rémove the same amount out of a smaller car. Indeed, it should take less, for the car not being full, the workmen could no doubt handle the freight with more ease. It seems almost ridiculous to say that the Legislature by this law meant to say that seventy-two hours should be allowed to remove the freight (same in amount) from a large car, when only forty-eight hours is allowed for the smaller car. What has been said as to unloading applies with equal force to loading the car, for the statute covers both. Why should a shipper be allowed seventy-two hours “free time” as it is termed, to-put 30.000 pounds of lumber in a car having a capacity of 60.000 or more pounds, and another shipper have only forty-eight hours to put 30,000 pounds of lumber in a car having a carrying capacity of only 50,000 pounds'? Is there sense or reason in such a distinction or difference? Did the Legislature intend such an unjust, unreasonable and absurd distinction? We think not.

The language used may be unfortunate, but when taken in connection with the cognate laws passed at the same session with reference to the freight which can be collected by the railway company on this class of freight, it is evident that the word “capacity” has reference to the load to be placed in or taken from the car and not the mere estimated capacity of the car itself. Thé latter is uncertain and only estimated, whilst the former is or can be made certain and definite. What weight in freight a car will actually carry is at most but an estimate, but the weight of the freight to be loaded thereon or taken therefrom is a certainty Or can be made so. It is to be presumed that the legislative mind was acting upon the definite and certain, rather than the mere speculative.

The language may be of doubtful meaning, yet we should give a construction consonant with the common sense of the thing. Unfortunate expressions and verbiage often appear in statutes, but if such expressions can be given a meaning which comports with the evident legislative intent, and which will render the statute valid and constitutional, rather than invalid and unconstitutional, that construction should be adopted. As above said, we are of the opinion that the Legislature had reference to the weight of the load to be placed in or removed from the car, rather than the actual carrying strength and capacity of the car. Such a construction makes the law valid and not subject to the darts of constitutional objections. Such a construction sounds in common sense. Such a construction comports with reason, and all these things the Legislature is presumed to have had when passing the law. Not only so, but the justice of the thing speaks out. Why should a consignee, having only 30,-000 pounds of freight to remove from a car be allowed twenty-four hours of additional time to hold out a car from the public service? The general public have an interest in the question. There are times when vast amounts of freight are to be removed and the rolling stock of a railroad is overtaxed by the demands of shippers, yet are we to say that the Legislature intended that a consignee having 30,000 pounds of lumber to be removed from a car that chanced to have a carrying strength or capacity of 60,000 pounds, could withhold that car from public use for twenty-four hours of additional time? The Legislature never intended such an incongruity and we will not so declare. Why fix the demurrage charges upon one basis and the freight rates upon another? These are cognate statutes and passed at the same legislative term and must be considered together, in determining the meaning of either.

The trial court erred in holding that the plaintiff had seventy-two hours of “free time” upon either of the cars in question.

II. But if this statute is to be construed literally and within its strict letter, then we say it is violative of constitutional provisions, both State and Federal. That the State has a right within certain limits to regulate demurrage charges is not seriously disputed, nor could it be.

If, however, this statute must be construed to mean that the amount of free time allowed to load and unload is to be measured solely by the dimensions and carrying ability of a car, rather than upon the amount of freight to be loaded into, or unloaded therefrom, then such standard is one arbitrarily fixed, and one not having a reasonable basis upon which to stand, considering as we must, the whole subject-matter to which the legislation applies.

Our esteemed late brother Black, J., in State v. Loomis, 115 Mo. 1. c. 314, said: “But classification for legislative purposes must have, some reasonable basis upon which to stand. It must be evident that differences which would serve for a classification for some purposes furnish no reason whatever for a classification for legislative purposes. The differences which will support class legislation must be such as in the nature of things furnish a reasonable basis for separate laws and regulations. Thus the Legislature may fix the age at which persons may be deemed competent to contract for themselves, but no one will claim thát. competency to contract can be ■ made to depend upon stature or color of the hair. Such a classification for such a purpose would be arbitrary and a piece of legislative despotism, and therefore not the law of the land. ’ ’

And to the same effect is'the language of Mr. Justice Brewer, in Railroad v. Ellis, 165 U. S. 1. c. 155, wherein he says: “But it is said that it is not within the scope of the Fourteenth Amendment to withhold-from States the power of classification, and that if the law deals alike with all of a certain class it is not obnoxious to the charge of a denial of equal protection. While, as a general proposition, this is undeniably true (Hayes v. Missouri, 120 U. S. 68; Railroad v. Mackey, 127 U. S. 205; Walston v. Nevin, 128 U. S. 578; Railroad v. Pennsylvania, 134 U. S. 232; Pacific Express Co. v. Seibert, 142 U. S. 339; Giozza v. Tiernan, 148 U. S. 657; Railroad v. Wright, 151 U. S. 470; Marchant v. Railroad, 153 U. S. 380; Railroad v. Mathews, 165 U. S. 1); yet it is equally true that such classification cannot be made arbitrarily. The State may not say that all white men shall be subjected to the payment of the attorney’s fees of parties successfully suing them and all black men not. It may not say that all men beyond a certain age shall be alone thus subjected, or all men possessed of a certain wealth.. These are distinctions which do not furnish any proper basis for the attempted classification. That must always rest upon some difference which hears a reasonable and-just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis.”

As said in Yick Wo v. Hopkins, 118 U. S. 373-4: “Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. This principle of interpretation has been sanctioned by' this court in Henderson v. Mayor of New York, 92 U. S. 259; Chy Lung v. Freeman, 92 U. S. 275; Ex parte Virginia, 100 U. S. 339; Neal v. Delaware, 103 U. S. 370; and Soon Hing v. Crowley, 113 U. S. 703.”

So in the law under consideration. Railway companies are obliged to furnish cars, within a certain time, after an order has been made therefor. This is statute law. But even without statute, as public servants there is an obligation. If, in obedience to the law, they take from their stock of equipment one car of 50,000 pounds capacity, and turn it over to A at station X, and in obedience to the same law, they turn over to B at the same station a car of 60,000 pounds capacity, and if both A and B have but 40,000 pounds of lumber to load, one gets seventy-two hours and the other only, forty-eight. And if the two cars are sent to the same consignee, on the one seventy-two hours is allowed to unload, whilst on the other only forty-eight hours is required. Thus the railroad company loses two days’ use of its car. By the use of the car, the company makes its money. Such úse is its stock in trade. In other words such use is its property right. Of this right it is arbitrarily deprived by the literal construction of the law before us. Not only is this true, hut the individual shipper, Mr. A., who got the small car, is discriminated against by the terms of the act. He had as much lumber to load as did Mr. B., but by force of the car demand he received a smaller car and must load in less time. The illustration shows that the law not only discriminates as between shippers, but deprives the corporation of a' property right, i. e., the use of its car for two days. Not only so, but in the push of business, in crowded shipping periods, as we all know occur, and when railways are pushed to meet the public demand, it robs the public of a right to promptly receive cars.

However, we prefer to give the statute the construction indicated in the preceding paragraph, rather than subject it to the constitutional inhibitions.

III. It is next urged that our statute has no application to two of the cars in question, because such cars were used in an interstate shipment. It is contended that as to such cars, our law, if otherwise valid, would be an interference with interstate commerce, and thus violative of the interstate commerce clause of the Federal Constitution. We do not feel called upon to discuss this question under the pleadings in this case. The petition is along the general lines of an ordinary petition or complaint in replevin. As to the two cars coming from points outside of this State, the defendant, answers by alleging that it holds them on account of a failure of plaintiff to pay certain demurrage charges. As to these demurrage charges the first count of the answer alleges all the necessary things to bring the defendant within the terms of our Demurrage Act. In other words, whilst not calling it by name, the answer pleads as a defense our Demurrage Act.

It adopts and pleads the notice which is required by the act. It adopts as its demand the exact sum of money to which it would be entitled under our act, according to defendant’s construction of the act, and according to the construction which we have given the act in our paragraph one. The whole tenor of the first count in the answer is to plead that defendant was entitled to so much money as demurrage on each car under our Demurrage Act, but that defendant only tendered amounts, short by one dollar, as to each car.

It is true that in the second count of the answer the Federal and State Constitutions are invoked, and the Federal and Commerce Act is invoked, and it is alleged that these statutes are violative of each and all, but what as to the other averments in this second count? It must be remembered that this is an action in replevin; that the answer admits the property right to be in plaintiff, but simply seeks to assert a lien. Suppose we eliminate from the answer, in so far as the two interstate cars are concerned, the first count, then how does the second count measure up as a defense in a replevin suit? Suppose we grant that the law is violative of all the constitutional provisions charged, and that there is no valid demurrage law, then how stands the case on the pleadings? The answer specifically alleges a certain tender of demurrage as to each car, but there is no. allegation that the amount so tendered was not a reasonable sum for such charges. Nor is there any allegation that the sums tendered did not meet the amounts allowable under the Federal regulations, if, in fact, there are or were any such regulations. If there was no valid demurrage law in this State this count of the answer should have so alleged, as it in effect did, and should have further alleged that the sum tendered was not a reasonable amount for said charges, or if the defendant was relying upon some Federal regulation, which had fixed such charges, and the amount tendered was , not sufficient, then this part of the answer should have so alleged. Without some such allegations as we have suggested, the demurrer was well taken as to the second count of the answer.

In our second paragraph we do discuss the law as it might be affected by constitutional provisions, but that was only in justification of the construction we had given it in the first paragraph.

We shall reserve a discussion of the question as to whether or not our law is violative of the commerce clause of the Federal Constitution, until it faces us in a concrete case. In this case the question is not raised in the first count of the answer. The second count of the answer is lacking in necessary averments, to constitute a good defense, even granting that the law should be held to be violative of the constitutional provisions pleaded. Such portion of the answer not only does not say that the amount tendered was not a reasonable sum for the demurrage, but it fails to aver that the amounts claimed were reasonable demurrage charges. And then, as above suggested, if there was an interstate commerce regulation, and the amounts were insufficient to meet the same, there is no such allegation.

For the reasons assigned in our first paragraph the case will be reversed and remanded to be retried in accordance with the views herein expressed.

All concur.


source: Caselaw Access Project

author: LAMM, P. J.

license: Public Domain

text:
    G. G. EWING v. VERNON COUNTY, Appellant.
    Division One,
    February 25, 1909.
    1. APPEAL: Abstract: No Record Recital: Supplementary Abstract. Where appellant’s abstract did not show by the record proper that the motion for a new trial was filed or that the time was granted to file a bill of exceptions after the trial term, yet, if in due time, appellant files a supplemental or corrected abstract which supplies such omitted record entries, the motion and bill of exceptions are for review in the appellate court.
    2. WAIVER: Motion to Make More Specific: Answer. By answering over defendant waives his motion to require plaintiff to make the allegations of his petition more specific and definite.
    3. APPEAL: Motions: Proper Receptacle. If by no record entry it is shown that a motion to make more specific was filed and ruled on, the motion cannot be considered on appeal; Even though the bill of exceptions contains a narrative that the motion was filed, that it was overruled and thereupon the answer was refiled, the motion cannot be considered on appeal, for the bill of exceptions cannot be made a receptacle of matters pertaining to the record proper — matters which the circuit clerk’s record should show.
    4. DEMURRER: Motion to Strike Out: Office. Motions and demurrers seek different remedies. A motion seeks some order of court falling short of the dignity of a judgment; a demurrer raises an issue of law and seeks a trial and judgment on that issue. A motion to strike out may be leveled at many things, such as a frivolous pleading, or trivial or irrelevant matter; but a motion to strike out the petition on the ground that “it does not state facts sufficient to constitute a cause of action,” seizes upon the general statutory ground for a demurrer, and a motion should not be used for any such purpose.
    5. RECORDER: Janitor Service. It is the duty of the county to provide and pay for necessary janitor services for the office of the county recorder; and if the county court will not do that, the recorder may employ a janitor himself, pay him a reasonable compensation for his services, and by suit compel the county to reimburse him for the outlay.
    6. -: -: Public Duty: Construction of Statutes: By no Litigation as Guide. There are a few fundamental constitutional provisions that guide in the construction of statutes. One is that government is instituted solely for the good of the whole people and to promote the general welfare. Another, that private property is not to be taken or damaged for a public use without just compensation. And it is also accepted as a fundamental part of the law that the public health is conserved by cleanliness and wholesome sanitary conditions in public offices; and the statutes require the recorder to “keep” an office, and the word “keep” is one of wide and flexible meaning, to be viewed with common-sense interpretation. ' These things of themselves argue that the recorder is not to pay for janitor service out of his fees; and, though there is no express statute declaring that the county shall pay for such services, yet as it has come to be almost a universal rule for such services to be paid out of the public purse, the fact that no case has been brought to this court to determine the point, is of itself significant in determining what the statute means.
    7. -: Stamps. The stamps used by the recorder in returning deeds to the party to whom they belong, after they have been recorded, should be paid for by the county; and if the county court will not supply the recorder with them, he can buy them himself, and compel the county to reimburse him.
    Transferred from Kansas City Court of Appeals.
    Aeeirmeu.

      A. J. Smith for appellant.

      Homer M. Poage and Scott & BowTcer for respondent.
    (1) The record does not, show the filing of any motion for a new trial. The mere recital thereof in the hill of exceptions is insufficient. (2) The record does not show the extension of time for filing hill of exceptions after the term at which judgment was rendered. The filing thereof after the term is unauthorized. (3) The law requires the recorder to “keep” his office at the seat of justice. R. S. 1899, sec. 9055. To keep is to preserve — to maintain — to provide for. 18 Am. and Eng. Ency. Law (2 Ed.), 56; Webster’s Dictionary. (4) Where the law requires an officer to do what necessitates an expenditure of money for which no provision is made, he may pay therefor and have the amount allowed him. Provisions against increasing the compensation of officers do not apply to such cases. Thus, it is customary to allow.officers expenses of fuel, clerk hire, stationery, lights and office accessories. 23 Am. and Eng. Ency. Law (2 Ed.), 388; Boone County v. Todd, 3 Mo. 140; St. Louis Co. v. Euland, 5 Mo. 269'; Sayler v. Nodaway Co., 159 Mo. 520. (5) An officer may he compelled to perform certain services for which no compensation is provided and for which he can collect nothing, but that is no answer to the proposition that an officer should hot be compelled to directly contribute his own means for the public welfare without recompense. Sayler v. Nodaway Co., 159 Mo. 524; Boone Co. v. Todd, 3 Mo. 142.
   LAMM, P. J.

Plaintiff sues in two counts. The first asks judgment for $118.90 for the reasonable value of janitor service paid out by him as recorder of deeds of Vernon county during certain years of his term as such officer. The alleged grounds of liability are that the law requires him to keep and maintain his office at the seat of justice of said county; that he did keep and maintain it at the courthouse in the city of Nevada; that to keep and maintain it as required by law it was necessary to employ a janitor to keep the rooms of said office in a reasonably clean and comfortable condition for the use of the plaintiff, his clerks and the public in general; that it was the duty of defendant county to provide such janitor and pay for such services; that prior to a certain date it had performed that duty, but on a certain date and thereafter for forty-nine and one-half months had failed and neglected to perform it, and, through its county court, forbade the janitor of its court house to perform such duties, whereby plaintiff was compelled to hire a janitor to do that work at a reasonable outlay of $2 per month; and, having demanded of defendant that it reimburse him for such outlay, on refusal to so do, he sues.

The second count asks judgment for $94.80, the reasonable value of postage, stamps used in the performance of alleged official duties as recorder of deeds during the same years and the further sum of $49.75 for outlays for printed blanks, such as warranty and quit-claim deeds, chattel mortgages and affidavits for the use of applicants for marriage licenses.

The cause was taken on a change of venue from the Vernon to the Henry Circuit Court and, being tried before the Hon. “Waller W. Craves, circuit judge, without a jury, judgment went in favor of defendant on the item for blanks, went for plaintiff on the items of outlay for janitor service and stamps; and plaintiff abided it. Defendant not content appealed to the Kansas City Court of Appeals. That court transferred the cause here on a question of. jurisdiction — the suit being against a county.

Material record facts will accompany the determination of points made.

I. Plaintiff’s counsel argue that the bill of exceptions cannot be considered for that there is no record entry abstracted showing a motion for a new trial was filed nor does any record entry show an extension of time for filing a bill of exceptions after the trial term, as appears to have been the case. . The bill of exceptions does narrate those facts, but they appear nowhere else in the original abstract. If this were all, the point would be well made, but it is not all. The cause was briefed in the Kansas City Court of Appeals and after its transfer to this court, on the 27th of June, 1908 (in due time), defendant filed here a supplemental or corrected abstract supplying such omitted record entries. Hence, there is left no substance in the contention, and the point is ruled against the plaintiff.

II. At the trial (and after answering) defendant filed a motion to require plaintiff to make the allegations in the second count of his petition more specific and definite in mentioned particulars. This motion was overruled and defendant assigns that ruling for error. There is no merit in the assignment — this because :

(a) An answer waives such motion, whether filed before or after the motion. If defendant desired to file such motion he should have withdrawn his answer and there should be a record entry showing that fact. There is a narration in the bill of exceptions that the answer was ‘ ‘ refiled. ’ ’ But that narration has no place in a hill of exceptions, ergo, is no evidence of the fact that the answer was withdrawn and refiled. .

(b) But, taking the answer as withdrawn before the motion, and as refiled after the motion was overruled, then defendant should have stood on his motion as to the second count. By refiling his answer he took the life out of his exception on appeal; for it has become a commonplace of appellate procedure that answering over waives a motion to make more specific. [White v. Railroad, 202 Mo. 1. c. 561, et seq., and cases cited.]

(c) Bnt there is another and equally fatal objection to considering the motion,, vis.: neither in the original nor in the amended abstract is it shown by any record entry that such motion was filed or rnled on. True, the bill of exceptions sets forth that such motion was filed. But a bill of exceptions is no evidence of the filing and the order overruling a motion of that character. A hill of exceptions, as its very name imports, is a receptacle for matter of exception and for naught or aught else. Its object is to make that a part of the record which is not already part of it. It springs up subsequently to the filing of the motion and the order of court entered thereon and fills no office evidencing such filing or order. [Thompson v. Ruddick, 213 Mo. 561; Stark v. Zehnder, 204 Mo. 1. c. 449; Harding v. Bedoll, 202 Mo. 1. c. 630; Pennowfsky v. Coerver, 205 Mo. 135, and cases cited.]

III. Defendant assigns for error the overruling of its motion to strike out the petition. Touching this motion, the abstracts show the same condition of things considered in paragraphs a, b, and c under head of Point II. Hence, for reasons there assigned we ought not to consider it. But it is well enough to add an observation or two. Learned counsel for defendant, not only seeking to widen the statutory rules differentiating motions from demurrers, also hew out a novel path of doubtful use verging from the main-traveled road of general practice. The ground of the motion is that: “said petition does not state facts sufficient to constitute a cause of action.” Thus they seize the general statutory ground of demurrer and harness it up for service in a motion to strike out. Now, motions and demurrers seek different remedies. A motion seeks some order of court falling short of the dignity of a judgment, a demurrer raises an issue at law and seeks a trial and judgment on that issue. [Bliss on Code Pleading (3 Ed.), secs. 418, 420, et seq.] ‘

A motion to strike out might be leveled at a frivolous pleading,' or a second petition that was a departure from the first, or a sham pleading. So, it might be leveled at trifling, trivial, nugatory, redundant or irrelevant matter or matter of duplicity or unnecessary repetition or the like; but it ought not to fill the well-defined and technical office of a demurrer in bringing to the attention of the court demurrable defects in a petition. [R. S. 1899, secs. 598, 608, 611, 612, 613; Bliss on Code Pleading, supra.]

The point is ruled against the defendant.

IV. Defendant objected below to tbe introduction of testimony on tbe ground tbe petition did not state facts sufficient to constitute a cause of action. At the close of tbe case it asked peremptory instructions on both counts. On an adverse ruling on sucb requests, defendant assigns error. A determination of these assignments may be logically bad under two beads, each of which seeks tbe facts and tbe application of tbe law to tbe facts. It may be said plaintiff’s evidence under each count tended to sustain tbe averments of that count and, therefore, tbe sufficiency of tbe petition in law and tbe sufficiency of tbe evidence to make a case, at bottom mean tbe same thing. Defendant put in no proof.

(a) Of the first count.

The evidence tends to show that tbe office of tbe recorder of deeds in Yernon county was in tbe courthouse in Nevada; that at one time a janitor was provided by tbe county for that office; that later janitor service was denied to tbe office by tbe county court, though a general janitor was provided for tbe courthouse at public expense; that plaintiff’s office was heated by a stove; and that tbe office was in two rooms, counting tbe vault. In tbe principal room tbe clerical work was done and, presumably, official business was transacted with tbe public. Tbe vault was connected with sucb room and its floor was several inches lower than that of tbe workroom. This jog made it necessary to assemble tbe vault dirt, shovel it into a bucket and pack it away. In tbe vault, presumably, were stored tbe deed indexes and records. We are left to infer tbe reason for tbe discontinuance of janitor service in that office by tbe county court. There is nothing to show that plaintiff caused it by petulant, unreasonable or capricious conduct. Absent proof pro or con, we are left to indulge in tbe presumption that tbe county court took up with tbe notion that, under the law, the burden of maintaining a janitor service should be lifted from the shoulders of the general public over on the shoulders of the officer himself. If, then, to speak in figure, the drainpipe of such service can, on a fair interpretation of the statutes and the general policy of our law, be disconnected from the public chest and connected with the private pocket of the officer, then such policy was well enough. Otherwise, it was bad and ought not to receive judicial sanction. In fact the cáse is put to us by defendant’s counsel on the sole theory that it was not the duty of the county to provide a janitor for the office, but that such officer in taking office assumed the burden of warming and cleaning his office rooms for the comfort and health of the general public and the office force, and that his official honor and official fees stood to be diminished by the burden of outlays for such service. It appears that plaintiff’s official fees did not equal his statutory salary, and when the county court withdrew the janitor service plaintiff supplied the same at an outlay of $2 a month. There is no contention made that the outlay was unreasonable; the evidence tends to show it was proportionately less than the county was paying for other janitor service in the courthouse. It is shown that for seventeen months of the time plaintiff hired his brother, a deputy in his office, as janitor and paid him $2 a month in excess of his salary as deputy. This feature of the case bespeaks no stress since the evidence shows good faith.

Such is the case on the first count.

It will be seen there is no contention made that the claim is void because it created an indebtedness beyond constitutional limits. The rich and populous county of Vernon has no such infirmity as would entitle it to a constitutional cover of that sort against liability. Therefore the doctrine of such cases as Barnard & Co. v. Knox County, 105 Mo. 382, as limited by tbe doctrine of sncb cases as Lamar Water & Electric Light Co. v. City of Lamar, 128 Mo. 188, is not in point.

It is believed that the fundamental constitutional maxims to the effect that all government is instituted solely for the good of the whole people, is intended to promote the general welfare, and that private property shall not be taken or damaged for public use without just compensation, aided by a common sense construction of statutes evidencing a liberal and wise public policy as over against a narrow, cheese-paring one, have caused a public janitor service paid out of the common purse to be so long and universally used in public buildings and all public offices of cities and counties in Missouri, that the precise point has not hitherto come up for decision. The absence of such cases is of some significance; for a practical administrative policy worked out by the good sense of the thing, well known and uniformly acquiesced in, is not without force in construing our statutes. Show me, said a great judge, what has been done under a deed, and I will show you what the deed means. By the same token, show me what by the concensus of public official interpretation has been done under a statute, and I will show you what it probably means. [Scanlan v. Childs, 33 Wis. 663; Packard v. Richardson, 17 Mass. 144; Donaldson v. Allen, 213 Mo. 1. c. 299, 300.]

However, by parity of reasoning, some aid may be borrowed from our decisions; for instance, in pioneer times so early as 1832 the question was here whether it was the duty of Boone county to furnish its circuit clerk a room to keep his office. [County of Boone v. Todd, 3 Mo., star p. 140.] The county refused to supply such room and Mr. Todd, the clerk, furnished one. He presented his account for rent to the circuit court. That court' allowed it in the sum of $120. Thereat the county court refused to draw a warrant and Todd sued out a conditional mandamus. A peremptory writ being finally awarded, Boone county brought error. The judgment was affirmed partly on the theory that the statute, as it then read, required clerks to provide and safely keep and preserve suitable books and furniture “and other necessaries for their respective offies,” etc. It was held, in this connection, that a room came under the head of “necessaries” and was as much a necessary as a book to record the judgments of the court. But the decision is also put on larger grounds, viz.: that it- would be unreasonable to suppose that the Legislature could intend that a clerk should furnish a house to keep the books and papers at his own expenses. It was pointed out that in some instances this might require him to build a house and thus absorb all his official fees, or more. It is said also (Chief Justice McGirk speaking), that to compel him to take his own private property for public use without compensation would be contrary to the Constitution; and that the law gives him his fees for compensation for official services and, so devoting them, did not intend those fees to be diverted or frittered away in providing a house to work in. What was this but holding that the laborer was worthy of his hire, and that the master, the public, should provide a safe and reasonable place and appliances in which to labor?

It St. Louis County Court v. Ruland, 5 Mo. 269, the doctrine of the Todd case was approved. In the Ruland case the clerk furnished fuel for the use of his office. He bought a quantity of coal at twenty-five cents a bushel, for nine cords of wood hauled and sawed he paid out sixty dollars and for another cord sixteen dollars, total, $134.75. The county contended it was not its duty to furnish fuel. But the court, in holding it came within statute provisions relating to necessaries, entered into a learned disquisition on the meaning of that word as relating to a public office, distinguishing between food and raiment necessary for the man, and those things necessary to the office and officer. It should be noted that the Todd and Buland cases involve questions peculiar to mandamus —a discretionary writ — a writ going only when the* character of the act is ministerial and is strictly imposed by law. [State ex rel. v. McIntosh, 205 Mo. 1. c. 610.]

In State ex rel. v. County Court of Livingston County, 51 Mo. 559, a mandamus case, a peremptory writ was denied. In that case it was sought to compel the county court to issue a warrant on a claim in favor of the clerk, audited by the circuit court, for “properly bunching, labeling and briefing the old papers in the office,” as per an order of the circuit court. It was held, in effect, there was no warrant of law for a claim to bunch, label and brief, and (arguendo) it was pointed out that the statute upon which the Todd and Buland cases were decided had been modified by amendment. But that case, while riding off on a strict construction, in nowise weakens the reasoning of those cases.

In Gammon v. Lafayette County, 79 Mo. 223, it was held that under a statute providing that the necessary expenses incurred by the probate court for furniture shall be paid by the county, the judge of such court could compel the county to repay him an outlay for a bookcase purchased for his use. In that case it was argued, as in this, that the party furnishing the article was the proper party to sue. In answer to that contention, Judge Henry said: “Yet the statute requires the county to pay for it and it can make no difference that in the first instance it is paid for by the probate judge. If, for instance, he should need for his office, in vacation of the court, a load of fuel, and could not procure it but by payment for' it on delivery, must he freeze in the office or close its doors or furnish the fuel at his own expense? We are not inclined to give the statute so narrow a construction.” See, also, Sayler v. Nodaway County, 159 Mo. 520.

Turning to the sections of the statutes regulating the office of recorder of deeds, we find them so meager as to cry out for help by construction. Their terms, then, must be read in the light of cognate sections and of the general policy of our laws. By Bevised Statutes 1899, section 9055, it is ordained that the recorder of deeds “shall keep his office at the seat of justice in each county” and that he “shall provide the same with suitable booksby section 9061 it is ordained that the county court shall “audit and settle the accounts of recorders for books for the use of their offices.” There is not a word in the chapter (chap. 147), relating to providing chairs, desks, pens, ink, stationery, stoves, racks, tables, spittoons, or other office paraphernalia. There is even no word relating to a room in which to keep his office or fuel to heat it. But when we read other provisions of the general statutes relating to building a courthouse and heed the underlying theory that county offices should be kept there, all questions relating to a room vanish; and when we read in section 9057 that the recorder of deeds must give a bond conditioned that he will deliver up to his successor among other things ‘ ‘ the furniture and apparatus belonging to the office, whole, safe, and undefaced,” we but gather (what we knew before) that the furniture and apparatus do not belong to the recorder, but to the county, and under Bevised Statutes 1899, section 1777, are under the control and management of the county court. Tumihg to other cognate sections it becomes plain that unless the Legislature deliberately planned to legislate against recorders and in favor of other county officers (an unthinkable position), it becomes plain that the county is to furnish the necessaries in furniture, fixtures, etc., to preserve the county records and make them usable by and useful to the general public. No one reading statutes relating to clerks, probate judges, etc., can come to any other conclusion. [See R. S. 1899, secs. 1647, 1648, 1654, 1662, 1750, 1763, 6710, 522 and 523.] By section 1750, supra, the circuit judges in cities having a population of 100,000 may appoint a janitor and the duties of such janitor are to keep the rooms of said court in an orderly and clean condition, etc. We assume that the object of this statute was not to make a statutory rule in favor of order aitd cleanliness in great cities as contradistinguished from small cities and counties, but was to graft on an exception and take away from the county courts of counties having such cities, the appointment of janitors for courtrooms — i. e., the statute by excepting counties having such cities and vesting the power in the circuit courts to appoint janitors there, recognizes, somewhat by way of a negative pregnant, that the general duty to supply janitor services in other instances rests with county courts.

Finally, we shall assume that among civilized people approved advances and results in scientific research make janitor services in public offices (i. e., the prevention of the propagation and spread of disease from filth), a necessity, and that the Legislature knew and gave effect to that fact. Buildings, under Revised Statutes 1899, section 6710, for clerks’ and recorders ’ offices, being for the preservation of the records of the county, how could this main idea have effect if those records are not to be kept and preserved free from deterioration from filth? Is the general public not interested in and benefited by clean windows, clean floors, clean furniture, clean spittoons, heat in winter and wholesome, healthy air at all times in public offices? It is useless to argue that question. It answers itself. And if the county court, as the agent of the general public in county affairs, without legal right or excuse, refuses to do that duty in the recorder’s office, what is the recorder to do? His only sensible course is to do what this recorder did, viz., avoid an unseemly wrangle, pay it out of his own pocket and trust to the courts and the law to reimburse him. The judgment on the first count is affirmed.

(b) Of the second count.

It is argued by defendant that it ought not to pay for stamps used by the recorder in his official business. The evidence discloses that the plaintiff charged up to the county his stamp account for returning recorded instruments to those residing in the county. The evidence further discloses in this case that the county furnished no vault room to keep and preserve recorded instruments. In this condition of things, plaintiff returned them by mail after recording. He seems to have made a distinction between nonresidents and residents of the county. As to nonresidents he presumably required postage in advance of redelivery by mail. It is stoutly argued that it was not-his statutory duty to return recorded instruments at all, even when requested to do so. It is shrewdly (and sourly) suggested in oral argument that if he obliged the general public by the courtesy of the return of a recorded instrument, such act was self-serving and must be referred to future political ambition in currying favor with voters. He is likened to a sower, who sows that he may reap at seed time. But we shall not take this view of it. The legal duty of an officer is to be obliging and courteous. The general welfare of the public demands the application of the idea that noblesse oblige. Not only so, but by section 9069 he is required to deliver the deed and its certificate of record, when recorded, “to the party or his order. ” By section 9089 he is required in certain instances to transmit deeds from one county to another. Conceding there are no fees allowed for the delivery of a deed after recording or for transmitting a deed from one county to another, yet the statute does not contemplate that he should pay money out of his pocket in the performance of his official duty. Fees are the income of an office. Outlays inherently differ. An officer’s pocket in no way resembles the widow’s cruse of oil. Therefore those statutes relating to fees, to an income, and the decisions of this court strictly construing those statutes, have nothing to do with this case relating to outgo. Such, we take it, is the doctrine of the cases cited in the former paragraph of this opinion, and it comports with reason. Further, if the custom was to deliver a deed to the U. S. Government to be transmitted by mail, as seems to have been the case, then such delivery is reasonably well within the contemplation of the statutory duty to deliver “to the party or his order.”

It must not be expected that this court will throw down statutory safeguards for the protection of the treasuries of the counties of this State, or in any way countenance looseness in their business affairs. But on the other hand we shall not construe our statutes so as to produce a harsh or ridiculous result and one not within the fair meaning of our laws.

The conclusion we have come to comports with the general doctrine announced in 23 Am. and Eng. Ency. Law (2 Ed.), 388. “Where,” say the editors of that standard work, “the law requires an officer to do what necessitates an expenditure of money for which no provision is made, he may pay therefor and have the amount allowed him. Prohibitions against increasing the compensation of officers do not apply to such cases. Thus, it is customary to allow officers expenses of fuel, clerk hire, stationery, lights, and other office accessories.”

The statute relating to recorders ordains that he “keep” his office, etc.; the word keep is one of wide and flexible meaning, one meaning being to maintain, to provide for. It involves the idea of continued effort in that line, i. e., that the office shall be carried on, enjoyed, etc. In this view of the case, the great breadth of the statutory word “keep” permits of the notion that it was the legislative intent that the recorder of deeds should have the power to maintain and provide for his office in a reasonable way for the benefit of the public, and (by implication) at the public expense, where county courts violate or renounce their duty in that regard.

Let the judgment he affirmed.

All concur, except Graves, J„ not sitting.


text:
    JOHN T. HARKREADER v. VERNON COUNTY, Appellant.
    Division One,
    February 25, 1909.
    1. ABSTRACT: Showing Filing of Motion and Bill. Where the appeal was inadvertently taken to the Court of Appeals, and the abstract filed therein did not by the record proper show that a motion for a new trial was filed or that time was given to file a bill of exceptions after the trial term, and objection was there made to these defects, but after the case was transferred to the Supreme Court appellant in due time filed an additional abstract showing that a motion for a new trial was filed and overruled and that leave was given to file a bill of exceptions and that said bill was filed within the time allowed, both the motion and the bill will be considered.
    2. SHERIFF: Janitor Service. The sheriff’s office is entitled to janitor service at the ex-pense of the county, and it is the duty of the county court to reimburse the sheriff for reasonable outlays for such service.
    3. -: -: Sentimental Reasons. The fact that the ■sheriff’s office was used as a jury room, and for the convenience of witnesses summoned in cases in which rules were made separating witnesses, does not accentuate the county’s liability to reimburse the sheriff for janitor services, but is of some sentimental value in pointing to the decent treatment due those called upon to perform the duties of good citizenship

      4. --: -: Stamps: Audited by Circuit Court. The sheriffs bill for janitor services for his office and for stamps used in his official correspondence is not required to he audited by the circuit court before it is allowed by the county court and paid by the county. Such claims do not arise out of some order made by the circuit court, nor are they matters that the court has statutory supervision of.
    5. -: Light and Water in Jail: Evidence of Agreement Between Sheriff and County Court. The jail was supplied with water and light by a public corporation, and a disagreement arising between it and the county court as to the prices charged, the court peremptorily ordered the water and lights to be discontinued, but the sheriff arranged with the company to continue the services until he could adjust the matter with the court. 3eld, that whatever agreement was made between him and the court could only be shown by the court’s record, and that parol evidence of the presiding judge of the announcement he made from the bench as to the court’s decision and the sheriff’s acquiescence therein was competent only to show the sheriff’s acceptance of the arrangement, and the record failing to show that the sheriff agreed to pay at his own expense for the water and lights, and that the court made no attempt to supply water or light, and the terms the sheriff made with the company being reasonable, he is entitled to be reimbursed for the amount.
    6. JAILS: Sanitary Condition. The statute (See. 8104, R. S. 1899) requiring that jails shall be “kept and maintained in a good and sufficient condition” means “good and sufficient” in a modern sanitary sense; and where the jail is so arranged that its sanitary condition and the health of its inmates depend on connections with the water force in the water mains, and the safety of the jail and the safe-keeping of the prisoners demand a connection with the city gas, the statute requires those connections to be continued when the service can be had at reasonable cost.
    Transferred from Kansas City Court of Appeals.
    Aeeirmed.

      A. J. Smith for appellant.
    (1) The motion to strike out (demurrer) should have been sustained. The suit is brought by the wrong party. If the sheriff, as jailer, had a right to buy water and gas from the Missouri Water, Light and Traction Company, lie did so as the agent of the connty, and the connty became debtor to the company for the same. All legal debts made by any officer of a connty, in the discharge of his duties as such officer, are county debts. Barnard & Co. v. Knox County, 105 Mo. 390. The same rule would hold good in the case of the purchase of stamps and payment of janitor hire. It will be observed that this suit is not brought on an assigned account against Vernon county. Query: Can a sheriff become the legal assignee of an unliquidated claim against a county? The question involves the construction of secs. 1926 and 2119, R. S. 1899. Under our statutes the county court has control of the county property and the sheriff and jailor, except where it is otherwise provided by law, can use only such conveniences in caring for the prisoners as is provided by the court. R. S. 1899, secs. 1777 and 1800. There are several sections in our statutes providing how a jail may be repaired. R. S. 1899, sec. 8121. Where jail of another county may be used, R. S. 1899, sec. 8125; when and how a guard may be appointed, R. S. 1899, sec. 8123. (2) It was not the duty of the county to furnish a janitor to the sheriff. The janitor work was an incident to the other work of his office. He is paid by fees, and it is a well-established rule of law that an officer cannot charge a fee for services unless the same is authorized by statutes. State ex rel. v. Wofford, 116 Mo. 220; State ex rel. v. McCracken, 60 Mo. App. 650; State ex rel. v. Brown, 146 Mo. 401; State ex rel. v. Mason, 82 Mo. App. 239; State ex rel. v. Smith, 82 Mo. 53; State v. Smith, 15 Mo. App. 412. As to the account for stamps, it will be observed that the office of sheriff is a statutory office. His duties are prescribed by R. S. 1899, sec. 10046. No such duties require the use of stamps, and if it were otherwise it would be only an incident to the performance of duties for which he receives fees. The claim for janitor hire and stamps is not properly brought for the further reason that the bill should have been audited and allowed by the judge of the circuit court. The room used as an office room was the jury room of the circuit court and the expense for janitor is alleged to be for earing for the circuit court jury room and the sheriff room. R. S. 1899', sec. 1623; County of Boone v. Todd, 3 Mo. 140; State ex rel. v. St. Louis County Court, 42 Mo. 496; State ex rel. v. Smith, 5 Mo. App. 427; State v. Smith 15 Mo. App. 412. The stamps used, especially those used in business with the circuit court, would be subject to the same rule. (3) The evidence of W. B. Martin and plaintiff concerning the conversation between plaintiff and the presiding judge of the county court offered by defendant should, have been admitted. Riley v. Peters Co., 96 Mo. 318. (4) The verdict and judgment is against the law and evidence, the first count is on a quantum meruit. Under that pleading the county could only be charged for the amount of water used at the reasonable value of such water. The county could not be charged for flat rates.

      Homer M. Poage and Scott & BowTter for respondent.
    (1) The record does not show the filing of any motion for a new trial. The mere recital thereof in the bill of exceptions is insufficient. (2) The record does not show the extension of time for filing bill of exceptions after the term at which judgment was rendered. The filing thereof after the term is unauthorized. (3) A common jail shall be kept and maintained in good and sufficient condition in each county of the State. R. S. 1899, sec. 8104. (4) The sheriff shall be jailer and have the custody, rule, keeping and charge of the jail. R. S. 1899, see. 8106. (5) The sheriff is bound to exercise ordinary and reasonable care under the circumstances of each particular case for the preservation of the life and health of his prisoners. 22 Am. and Eng. Ency. Law (2 Ed.), 1306. And he is required to keep the jail clean and to provide food and other necessities for the prisoners. 22 Am. and Eng. Ency. Law (2 Ed.), 1300. (6) Where the law requires an officer to do what necessitates an expenditure of money for which no provision is made, he may pay therefor and have the amount allowed him. Provisions against increasing the compensation of officers do not apply to such cases. Thus, it is customary to allow officers expenses of fuel, clerk hire, stationery, lights and office accessories. 23 Am. and Eng. Ency. Law (2 Ed.), 388; Boone County v. Todd, 3 Mo. 140; St. Louis Co. v. Ruland, 5 Mo. 269; Sayler v. Nodaway Co., 159 Mo.- 520. (7) An officer may be compelled to perform certain services for which no compensation is provided and for which he can collect nothing, but that is no answer to the proposition that an officer should not be compelled to directly contribute his own means for the public welfare without recompense. Sayler v. Nodaway Co., 159 Mo. 524; Boone Co. v. Todd, 3 Mo. 142.
   LAMM, P. J.

This case is twin to Ewing v. Vernon County, this volume, page 681, and was argued and submitted with that case. Mr. Harkreader was sheriff of Vernon county. He sues in three counts — • on the first, for his outlays ($246.15) for gas and water service in the county jail; on the second, for outlay ($18) for stamps used in his official business; and on the third, for outlay ($72) for janitor service in his office at $2 per month — -all which several sums he paid out because of the refusal of the county court to supply such water, gas, janitor service and stamps, and for which he demanded and was refused reimbursement.

The case went on change of venue to Henry county and was there tried before a jury — Judge Craves presiding. From a judgment following a verdict on each count, Vernon county appeals.

Any facts material to vital questions raised will appear in connection with their determination.

I. Respondent insists that the bill of exceptions is out of the case because the record proper does not show a motion for a new trial was filed and does not show time was given to file a bill of exceptions after the trial term — the bill being filed subsequently. But, as in the Ewing case, the appeal inadvertently went to the Kansas City Court of Appeals. While lodged there an abstract was filed by appellant and briefs were filed on both sides. Such abstract invitejd the point raised. However, when the case came here, in due time an additional abstract was filed. We shall consider both and, taken together, they show a motion for a new trial was filed and overruled and that leave was given to file a bill of exceptions and that said bill was filed within the leave granted. Hence, as was done in the Ewing case, so let it be done here. The point is disallowed to respondent.

II. The same points made in the Ewing case relating to filing and overruling motions to make more specific and to strike out, are made here. The pertinent record conditions on those motions are the same in this as in that case, mutatis, mutandis. Therefore, for the reasons assigned there, the points are disallowed to appellant here.

III. Moreover, the interpretation given to the statutes construed in the Ewing case, the reasoning employed to support' the decision and the result reached are in point in the case at bar. Those reasons and interpretations .will not be restated and that case should be read and taken with this. Having reached that conclusion, the judgment should be affirmed out of hand, without more, were it not for certain assignments of error seeking further consideration presently. Such new assignments do not concern the use of stamps for the official correspondence of the sheriff, nor the necessity of, and liability for, janitor service for the sheriff’s office in the courthouse, but concern the first count. Therefore there is no call for a, reconsideration of the liability of the county for stamps or janitor service.

The sheriff’s office was not only entitled to janitor service as a public office, under the doctrine of the Ewing case, but it was used as a jury room and for the convenience of witnesses summoned in cases in which rules were made separating witnesses. We do not deem such use as accentuating the county’s liability but the evidence is of some sentimental value in pointing to the decent treatment due those called upon to perform the duties of good citizenship. It is argued that the sheriff’s bill for stamps and janitor service should have been audited and allowed by the circuit court. But we are pointed to no provisions of the statute requiring a preliminary auditing, or viseing, of claims by the circuit court when such claims do not arise out of some order made by that court or in some matter that court has statutory supervision of. A lawsuit, where issues are framed on pleadings and submitted to a jury under instructions of the circuit court and a result reached under the solemnities of the law, is an audit of the very highest order. In the absence of an express statute requiring a preliminary or another audit, we shall not hold that one was necessary. The instructions asked by defendant on the second and third counts were peremptory ones to find against plaintiff. The instructions given for plaintiff on those counts are not objected to as incorrect propositions of law, provided plaintiff was entitled to recover at all. Therefore, the instructions need no consideration, and what is said in the Ewing case relating to stamps and janitor service is conclusive on those counts.

Accordingly, the judgment will he affirmed as to them.

IY. The case made on the first count is this: Plaintiff as sheriff and ex officio jailer resided in the jail. It was a stone building, built in days when there were no public sewers in the city of Nevada and no public service corporations furnished gas or water. There fell a time when it was modernized and enlarged, and when plumbing was put in connecting the sinks, bathtubs, washbowls, flushing tanks, commodes, urinals, etc., with the public service water mains and with the public sewer and the lighting plant — the same corporation furnishing both water and gas. At a certain time during plaintiff’s* term as sheriff a squabble arose between this public service corporation and the county court. The merits of it are not here. On a certain night without notice to the sheriff and without providing any other water service or water pressure or light of any character, the light and water were shut off from the jail by an order of the county court. When the sheriff came to the jail he found it dark, and, inferring that the court was momentarily disgruntled, he diplomatically thought it best not to interview the court in the sharp edge of its present mood, but to await for the edge of its displeasure to be dulled by second thought in a day or so. But, being in extremity for water and light and having no other means at hand to supply the same, he caused the gas and water connections to he re-established until he could bring the matter before the court at a more auspicious season. This he presently did. The trial court ruled that what the court did on that occasion must appear from its records and not by parol. Accordingly, defendant’s counsel introduced a certified copy of the proceedings of the county court. But the record is dark as to what those proceedings were. There is a call for them in the bill of exceptions, but they are not supplied or abstracted. Defendant presently sought to show from Martin, the presiding justice of the county court, while on the witness stand, that when the sheriff came before the court with his complaints relating to water service and pressure to flush the sewer connections, etc., and the light, witness told him from the bench that the county would furnish him “any ldnd of water, any wells dug, dig him any other well, furnish him with any kind of pump, furnish him with any kind of light he might desire,” and thereupon plaintiff said: “No, that he was going to use the city water and the city gas if he had to pay for it himself.” This offer was objected to on various grounds, among others that the action of the county court could only be proved by its record, and, even if the evidence was admissible, it would not be any defense to the suit because it was the duty of the county court to furnish suitable appliances and not to make offers to do so. Defendant saved an exception to the exclusion of the oral testimony and the point is here for determination.

It appears that plaintiff during his official term from day to day had charge of from one to thirty prisoners — an average of ten or eleven. The cells were the usual iron cage cells, one tier above another, the upper cells being a woman’s department and having separate sanitary, sewer and water connections. The jail had a concrete floor and the conventional caged corridor. The water closets were partly hopper closets, that is, closets that flushed themselves automatically when used, and partly tank closets, flushed by pulling a chain. There was a well in the jail yard. Whether its water was well water, or rain water from the roof of the jail, or a blend of both, we do not clearly make out. Plaintiff put in proof that its water was unfit for use when he took charge of the jail; that reasonable attempts were made to renovate it and make it nsable, but without success; that it was infested with vermin and too close to the sewers; that among other unamiable and repulsive features it was a swimming pool for black worms “similar to a thousand-legged worm, about that long.” Being asked how numerous were those worms in the water, plaintiff replied: “They were extraordinarily numerous.” There was no evidence tending to show that the county actually furnished plaintiff suitable apparatus to scrub and clean the jail, flush the sewers and commodes in a sanitary way, or furnish suitable water inside the jail for drinking, bathing and other living uses. Defendant did introduce evidence tending to show that some of the county judges drank from this well, now and then, and liked the water very well (de gustibus non est disputandum), and its theory was that the sheriff should pack water from the unused well into the jail to wash out the commodes and closets and make the jail inhabitable. Just how the application of the needed water should be timed to the usual incidents and emergencies of jail life arising by routine or by surprise by day and by night is not disclosed. There is no testimony showing that the county court furnished oils, lamps, electric light or any other scheme for lighting — it did put a pump in the old unused well and, with that, rested content in the consciousness of duty well done, leaving the sheriff to wrestle with the problem as best he could. This he did. Failing to have any provisions made, the sheriff continued the use of water and light from the city service, paying a flat rate of $130 per year — the rate prescribed by the service corporation and long in use.

There was competent testimony this was a reasonable rate. There was other testimony tending to show it was an unreasonable one and that it would have been more economical to have put a water meter into the jail and paid a meter rate. But there is no testimony that the county supplied a meter or sought a settlement of the water crisis by the use of a meter rate.

On such a record it is argued, unsoundly, we think, that the court committed reversible error in not allowing the presiding judge of the county court to testify to .the mere offer made to the sheriff through him as a mouth-piece, in the presence of his associates.

It is further argued, unsoundly, we think, that the plaintiff made no case as a matter of law. We think so because:

(a) The case of Riley v. Pettis County, 96 Mo. 318, is cited as authority for the proposition that the court erred in excluding the offer of testimony, but that ease is not in point. It does not hold that the official action, whatever it be, of the county court ought not to be shown by its record. It holds that the mere record of the county court would not bind the other contracting party, if any, and that his assent or refusal to assent might be shown by parol. We are cited to Boggs v. Caldwell Co., 28 Mo. 586; but that case was limited and distinguished in Dennison v. St. Louis Co., 33 Mo. 168, was doubted in Reppy v. Jefferson County, 47 Mo. 66, and its authority still further shaken in Maupin v. Franklin County, 67 Mo. 327. It has not been followed heretofore and we shall not follow it now. At most, under the Riley case and other cases on that line, the offered evidence would be admissible only to show the position taken by the sheriff. We construe that position, in effect, to be that he wanted the court to make some arrangement to reconnect the jail with the city water and light, holding that the existing status, the plumbing in the jail, and the sanitary arrangements there, as well as safety and security, demanded such connection; that his idea was that it had to be made “if he had to pay for it himself.” Observe, this was all by way of argument on his part. He did not obligate or offer to obligate himself to pay for it, contra, he was in the very act of insisting that the county do it. There was no contract made nor any acts in pais that would create an estoppel, nor is any such defense hy way of such avoidance set up in the answer.

The ruling was right, and, as no other question relating to the exclusion of testimony is pressed, the point is ruled against appellant.

(b) Nor did the court commit error in sending the case to the jury on the first count. It is hard to use the venerable and tranquil language of the courts in dealing with the facts of the case. The statement of facts shows that the jail had no sanitary relief except by use of the pressure from the city water mains. It is not worth while to argue that jails could be kept in sanitary condition without pressure from water service, if suitable appliances, conveniences and help were supplied for that purpose. Some jails were once kept clean and decent by such simple and homely' expedients, and by vigilance and persistent manual effort, but this jail was not arranged that way. To the contrary, it was arranged so that its sanitary condition and the health of its inmates depended on connection with the water force in the water mains, and the safety of the jail and the safe-keeping of the prisoners demanded a connection with the city gas.

In the credited annals of an oriental people, whose history will carry a live dramatic interest as long as men read and ponder upon the phenomena of life and whose ordinances and customs bear high witness to the ethical and physical value of exquisite cleanliness, it is written that every man should sweep before his own door and that, in emergencies springing from the laws of nature, a paddle should be used to make an earth closet. But the statutes of this State recognize a vast advance beyond such primeval simplicity. The face of our legislative policy is turned another way, and we make no manner of doubt that our statutes contemplate a jail connection with sewers, if that be practicable, and with the water pressure of public service mains, when that is practicable.

Time was when men did not blusb to argue that filtb in jails (at least in debtors’ jails) advanced the underlying purpose of imprisonment. That the more accentuated the uncleanliness of prisons, the more pronounced would be the curative effect on the recalcitrant prisoners; as if one shall be made to wear a tight boot in order to greatly long to put it off, or to drink brine in order that a thirst for water should be sprung. In 1793, Lord Loughborough then holding the Great Seal as Keeper of the Conscience of George the Third, published a treatise, “On the State of English Prisons and the Means of Improving Them,” from which Townsend in his Lives of Twelve Eminent Judges, quotes this passage: “ The close air and squalid condition of a prison, ‘squalor carceris/ were by many considered as the necessary attributes, and even men of respectable judgment have supposed, in the case of debtors, that the filth of the prison was a proper means of compelling them to do justice to their cred-. itors. ’ ’ (Witness the foul Bedford jail where the immortal Bunyan lay and dreamed his immortal dream.)

All such notions are worthless in an age allowing humanity as an essential element in punishment and abhorring cruelty per se in laying the law’s heavy hand on delinquents.

It is written in the statutes that jails should be “kept and maintained in a good and sufficient condition,” etc. (R. S. 1899, sec. 8104), that is, “good and sufficient” in a modern sanitary sense, having an eye to the sure results established by scientific investigation of the disease-breeding effects of filth and bad air. That statute is broad enough to cover the extraordinary condition disclosed by this record.

We are driven to the conclusion there was more pique than principle at bottom in the action of the county court.

Let the judgment he affirmed. It is so ordered.

All concur, except Graves, J., who took no part.