author: FARIS, J.

text:
    THE STATE ex rel. THOMAS B. HARVEY, Circuit Attorney, v. JOSEPH A. WRIGHT.
    In Banc,
    June 28, 1913.
    1. OFFICERS: Election Commissioners: Restriction on Governor's Power of Appointment. A provision in a statute requiring the Governor to appoint two election commissioners for St. Louis from “six eligible citizens named by the State committee” of the political party to which they belong, is unconstitutional and void, as an unwarranted encroachment upon the Governor’s appointive powers. But it does not render invalid the other provisions of the act prescribing that two of the commissioners shall be taken from the leading party politically opposed to that to which the Governor belongs, for that is a prescription of the qualifications necessary for eligibility to a non-partisan board.
    2. -: --: Eligibility: Members of Leading Political Party. The purpose of creating an election commission of four members in St. Louis was to create a non-partisan board, and that is a proper subject of legislative enactment, and in carrying it out the Legislature was authorized to prescribe that “two of said election commissioners so appointed by the Governor shall be members of the leading party politically opposed to that to which the Governor belongs.”
    3. -:--: -: Question of Fact Determined by Governor and Senate. In a quo warranto to oust a respondent who has been appointed by the Governor and confirmed by the Senate, the question of fact of whether or not Jie belongs to “the leading party politically opposed to that to which the Governor belongs,” is not concluded by the Governor in appointing him or the Senate in confirming the appointment.
    4. ■--: i : -: Leading Party: In State, Not Nation. The statute in requiring that “two of said election commissioners so appointed by the Governor shall be members of the leading party politically opposed to that to which the Govenor belongs,” had reference to political parties within this State, and not to nation-wide parties — in this case it meant the Republican party, and not the Progressive, which even if it polled more votes in the entire nation at the last general election, did not poll as many as did the Republican party in this State. Prima facie every statute is confined to persons and property rights within the territorial jurisdiction of the legislature enacting it.
    5. --: -: Ineligibility Cured by Subsequent Statute. If respondent was ineligible under the law under which he was appointed, his ineligibility was not removed by the passage, after the suit of ouster was instituted, of a statute which removed the clause of the former statute which rendered him ineligible, unless there is clear and unequivocal expression in the latter statute that it was to have a retrospective operation.

      Quo Warranto.

    "Writ granted.

      Spencer & Donnell for relator.
    (1) The burden of proof in a quo warranto case is upon the respondent. State ex rel. v-. McCann, 88 Mo. 386. (2) The law (Laws 1911, p. 248), providing that in the appointment by the Governor of the four members composing the board of election commissioners, “two of said election commissioners so appointed by the Governor shall be members of the leading party politically opposed to that to which the Governor belongs,” is constitutional and mandatory upon the Governor. (a) There is no constitutional direction in Missouri concerning the qualifications of members of the board of election commissioners, (b) In the absence of such constitutional direction, section 9, article 14, of the Constitution is applicable in its provision: “The appointment of all officers not otherwise directed by this Constitution shall he made in such manner as may be prescribed by law.” Ex parte Lucas, 160 Mo. 227; State ex inf. v. Washburn, 167 Mo. 680; People v. Hoffman, 116 111. 587; Staté v. Bemis, 45 Neb. 724; Iiovey v. State, 119 Ind. 386; Patterson v. Barlow, 60 Pa. St. 54. (3) The provision concerning the “leading party politically opposed to that to which the Governor belongs” applies only to the political situation in Missouri and not to any other part of the United States, or to the entire United States. “A statute is prima facie confined in its operation to persons and conditions within the territorial jurisdiction of the Legislature.” Beale on Cardinal Rules of * Legal Interpretation, p. 232. ‘ ‘ Prima facie every stat - ute is confined in its operation to the persons, property rights or contracts which are within the territorial jurisdiction of the Legislature which enacted it. “Sutherland on Statutory Construction, sec. 513. A construction will always be given to -a statute which prevents absurd consequences, for the Legislature will not he presumed to have intended such results. Yerdin v. St. Louis, 131 Mo. 163; Perry v. Strawhridge, 209 Mo. 642. If the contention of respondent is right that the Missouri statute concerning a second leading political party had reference to the political status in the entire country and not exclusively to Missouri, it might follow that even though a party had never organized in Missouri, had cast no votes in this State, in fact had no existence here, yet if it was strong enough outside of Missouri to he second in the United States, it would he entitled to one-half of election officials in Missouri. A political party is defined by the Legislature of Missouri, solely on the basis of the political condition in this State: first, with regard ot the vote it cast “for Governor or for Supreme Judge” in Missouri. Sec. 6014, R. S. 1909. Second, with regard to its proportion of the “entire vote cast in the State.” R. S. 1909, secs. 5836, 5837.

      Guy A. Thompson, Walter E. Saunders, E. J. Cantwell and Arthur M. Eyde for respondent.
    (1) The Act of March 21,1913, in any view of the law, validates the respondent’s title. Railroad v. Marion County, 36 Mo. 294; State ex rel. v. Miller, 66 Mo. 328; Gibson v. Railroad, 225 Mo. 473; Lovejoy v. Bee-son, 121 Ala. 605; Steele County v. Erskine, 98 Fed. 215; Pennsylvania v. Bridge Co., 18 How. 421; Bridge Co. v. Attica, 119 N. Y. 204; Black, Constitutional Law, 547; Cooley, Constitutional Limitations (7 Ed.), 530. (2) • The Governor in appointing respondent and the Senate in confirming same determined a political question, after an inquiry imposed by law, and the discretion thus exercised is not subject to judicial review. State ex rel. v. Fletcher, 39 Mo. 388; In re Woodson, 58 Mo. 369; State ex rel. v. Stone, 120 Mo. 428; State ex rel. v. Bolte, 151 Mo. 362; State ex rel. v. Allen, 180 Mo. 27; State ex rel. v. Hitchcock, 241 Mo. 433; Luther, v. Borden, 7 How. 1; In re Duncan, 139 U. S. 449; Taylor v. Beckham, 178 U. S. 548; Jones v. United States, 137 U. S. 202; Benson v. United States, 146 U. S. 325. (3) “The leading party politically opposed to that to which the Governor belongs,” if not invalid and inoperative by reason of vagueness and indefiniteness, because of no standard or test for determining same, contemplates a political party not in a factional, sectional or local sense, but a nation-wide party. Beardsley v. Bridgeport, 53 Conn. 489; Davidson v. Hanson, 87 Minn. 211; Schafer v. Whipple, 25 Colo. 400; Weaver v. Toney, 107 Ky. 419. (4) The law, if constitutional, is merely directo^ and not mandatory, and therefore any controversy ended with the appointment of respondent by the Governor. Ex parte Lucas, 160 Mo. 227; Commonwealth v. Plaisted, 148 Mass. 375; State ex rel. v. Sargent, 145 Iowa, 298, 27 L. R. A. (N. S.) 298; State ex rel. v. Seavey, 22 Neb. 454; State v. Bemis, 45 Neb. 724; People ex rel. v. Hoffman, 116 111. 587. (5) The preparing of a list of six eligible candidates by the State central committee was a vital feature of the scheme of selections, and if this feature is unconstitutional as counsel for informant admits, then the entire clause falls. State ex inf. v. "Washburn, 167 Mo. 680, 697; State ex rel. v. Gordon, 236 Mo. 170; Copeland v. St. Joseph, 126 Mo. 428; State ex rel. v. Clifford, 228 Mo. 194, 208; Spraigue v. Thompson, 118 U. S. 90; Commonwealth v. Hana, 195 Mass. 262, 11 L. R. A. (N. S.) 799; Bonnett v. Yallier, 136 Wis. 193; People ex rel. v. Hurbut, 24 Mich. 44; Cooley, Constitutional Limitations (7 Ed.), 246-250. (6) That part of the act, if mandatory, is unconstitutional because it attempts to grant an exclusive right and privilege to hold this office to a certain class of citizens. State ex inf. v. Washburn, 167 Mo. 688-9; State ex rel. v. Gordon, 236 Mo. 142; Evansville v. State, 118 Ind. 426; State ex rel. v. Holt, 118 Ind. 449; Rathbone v. Wirth, 150 N. Y. 459; People v. Hurlbut, 24 Mich. 44; Attorney-General v. Detroit, 58 Mich. 213; Bowden v. Bedell,'68 N. J. L. 451; State ex rel. v. Sargent, 145 Iowa, 2'98, 27 L. R. A. (N. S.) 719; Brown v. Russell, 166 Mass. 14, 32 L. R. A. 253. (7) The scheme proposed for the selection of the election commissioners Is contrary to the spirit and genius of our constitutions, both State and Federal. State ex inf. v. Wash-burn, 167 Mo. 680; State. ex rel. v. Gordon, 236 Mo. 142; State ex rel. v. Public Schools, 134 Mo. 296; Owen v. Baer, 154 Mo. 434; Beardstown v. Yirginia, 76 111. 34; Evansville v. State, 118 Ind. 426; State ex rel. v. Holt, 118 Ind. 449; Rathbone v. Wirth, 150 N. Y. 459; Rogers v. Buffalo, 123 N. Y. 173; Shaw v. Marshall-town, 131 Iowa, 128, 10 L. R. A. (N. S.) 825; People v. Hurlbut, 24 Mich. 44; Baltimore v. State, 15 Md. 376, 74 Am. Dec. 572; Smith v. Thursby, 28 Md. 269,
   FARIS, J.

This is an original proceeding in the nature of quo warranto, begun by Thomas B. Harvey, as circuit attorney of the city of St. Louis, against Joseph A. Wright, respondent, to try the title by which respondent holds the office of member of the Board of Election Commissioners of the said city of St. Louis.

Respondent was appointed such member of the Board of'Election Commissioners by the Governor of Missouri on January 29, 1913, for a term ending January 15,1917, and duly commissioned as such by a commission duly and regularly issued qn February 3, 1913. He has duly qualified by taking the required oath and filing bond.

It is conceded that respondent has been in every way pursuant to law, duly appointed, commissioned and qualified, and that he is in all ways competent to fill this position, save and except as to his political faith and affiliation. He is a member of the Progressive party, and was a member thereof at the time of his appointment. Being so affiliated politically, is he eligible and qualified under the statute below quoted? If he be not so eligible, may he be reached and' ousted by this court after being commissioned by the Governor and confirmed by the Senate?

OPINION.

I. Respondent was. appointed to this office by the Governor of Missouri by virtue of the authority conferred on the latter by the following section of the Act of March 27, 1911 (repealing section 6190, R. S. 1909), to-wit: .

“Section 6190. There is hereby created a nonpartisan board of election commissioners for each city governed by the provisions of this article, composed of four members wbo shall be appointed as follows: Within sixty days after this act shall become a law, the Governor, by and with the advice and consent of the Senate, shall appoint for each of such cities four mem- ' bers, who shall hold their offices until January 15, 1913, and until their successors are commissioned and qualified. Successors shall be appointed in like manner and their terms of office shall be four years, and until their successors are commissioned and qualified. Two of said election commissioners so appointed by the Governor shall be members of the leading party politically opposed to that to which the Governor belongs, and shall be chosen from six eligible citizens named by the State committee of the said leading party politically opposed to that to which the Governor belongs and the other two members of said board shall be selected from six eligible citizens named by the State committee of the political party to which the Governor belongs. In making the appointments of the commissioners the Governor shall designate the commissioner who shall be chairman of the board and the one who shall be the secretary of the board, provided the chairman and secretary shall not both belong to the same political party. In case of a vacancy in said board from any cause whatever, it shall be filled in the same manner and from like lists, and subject to confirmation by the Senate, as in the case of original appointments, save that the appointee for any unexpired term shall be a member of the same political party to which the person whom he may succeed belonged, and in no ease shall more than two members of said board belong to the same political party.”

So much only of this section is pertinent to this inquiry. Other parts relate to 'acts of qualification and to character, and to matters and details of residential eligibility, concededly possessed by respondent.

Further narrowing the issues in controversy, '-relator contends that the appointment of respondent, who is a member of the Progressive party, violates the following provisions of the above section, to-wit:

“Two of said election commissioners so appointed by the Governor shall be members of the leading party politically opposed to that to which the Governor belongs, and shall be chosen from six eligible citizens named by the State committee of the said leading party politically opposed to that to which the Governor belongs and the other two members of said board shall be selected from six eligible citizens named by the State committee of the' political party to which the Governor belongs.? ’

Conceding the violation of the above provision by the appointment of respondent, if it be a fact that the Progressive party is not£ £ the leading party politically opposed to that to which the Governor belongs,” the respondent yet contends that the provision quoted is violative of the Constitution. However, his said contentions, so far as they apply to the whole of this clause, are not vehement or insistent, or indeed, very urgent.

This court in a well-considered case (State ex inf. v. Washburn, 167 Mo. 680), held unconstitutional that part of a similar provision in a similar law which. conferred upon a committee of a political party, the privilege of suggesting to the appointing power names of eligible persons for appointment. Under the authority of this case, which is so clearly the law and which is on this point so well-considered, that we shall not again review the reasons, this much of the quoted clause, to-wit, “and shall be chosen from six eligible citizens named by the State committee of the said leading party politically opposed to that to which the Governor belongs, and the other two members of said board shall be selected from six eligible citizens named by the State committee of the political party to which the Governor belongs,” clearly falls down as invalid and void, because not constitutional.

If, however, the remaining words of the clause quoted, to-wit: “Two of said election commissioners so appointed by the Governor shall be members of the leading party politically opposed to that to which the Governor belongs,” are not invalid for constitutional reasons, then other things being equal, respondent should be ousted.

The Act of March 27, 1911, now under discussion, by the very first sentence thereof, recites as the object of the enactment, that “there is hereby created a nonpartisan board of election commissioners for each city governed by the provisions of this article.” Other provisions of this amendment of 1911 accentuate and make plain this legislative intention so to create such a non-partisan board. Clearly such a board could not be created and certainly perpetuated, unless the political eligibility of the members- thereof were written into the law, and the Legislature so wrote this intent into this law in clear and unmistakable words.

Did the makers of the Constitution, except where otherwise specifically excepted, and except where the power was otherwise specifically lodged, confer upon the Governor of the State the power of appointing officers generally, as distinguished from those of whom specific mention is made in the Constitution? The view is extant and so persistently so, that this power enures to the Governor, as a power directly and specifically conferred on him by the Constitution, that a setting out of the several provisions of our Constitution touching the appointment of officers is pertinent, may be instructive, and certainly will save the labor of personal investigation. These provisions, and all of them which are in any manner pertinent, are as follows:

Sec. 11, art. 9: “Whenever a vacancy shall happen in the office of sheriff or coroner, the same shall be filled by the county court. ...”

Sec. 32, art. 6: “In case the office of judge of any court of record become vacant by death, resignation, removal, failure to qualify or otherwise, such vacancy shall be filled in the manner prescribed by law.”

Sec. 11, art. 5: “When any office shall become vacant, the Governor, unless otherwise provided by law, shall appoint a person to fill such vacancy, who shall continue in office until a successor shall have been duly elected or appointed and qualified according to law.”

Sec. 9, art. 14: “The appointment of all officers not otherwise directed by this Constitution, shall be made in such manner as yiay be prescribed by law.”

Naturally, since we here are dealing with a statute which while conferring on the Governor the power of appointment, yet prescribes the qualifications of the persons who may be appointed, we need not concern ourselves with other statutes passed by the Legislature, and which almost universally have conferred on the Governor the power of appointment of such officers as may be provided for by such statutes. Here the power in the Governor to appoint did not accrue to him directly from the Constitution, but came to him indirectly by delegation from the Legislature, to whom the power of selection or appointment was directly conferred by the Constitution (to be exercised of course not directly, but through statutes). We need only look to the Constitution to see where the power of appointment has its source, so far at least as we are here concerned, that is, with an office and an officer such as is here under discussion and which was created by the Legislature. So looking, we find it lodged in such cases in the Legislature, or left for legislative determination, to be exact.

Our Constitution by its provisions may be said to be a limitation upon the powers of the legislative department, but a grant of powers to the executive branch. It fairly follows that the Legislature may not trench upon, limit, attach conditions or restrict the exercise of such powers as are specifically conferred on the executive branch by the organic law. But in the myriad, forms which governmental functions are compelled to assume in order to fairly meet the necessities, the broadening conditions and mutations super-induced by general development, other powers and duties are created by the Legislature, for the enforcement and performance of which executive machinery must be provided. The Legislature in its discretion as to these matters may confer these powers upon the executive branch or it may wholly withhold them. Viewing these matters broadly it would seem that if the Legislature may not attach to an office and to an officer such as those here considered, such conditions as will make effectual the legislative object and intent, then the Legislature has no constitutional power to pass such a law creating such offices at all.

In conferring this power of appointment on the Governor, the Legislature had the power to attach such conditions to it and to require such qualifications in those appointed by the Governor as it saw fit, so long as those conditions were not shared by others with the Governor, or thrown upon others, wholly or in part, for their determination, and so long as the qualifications were not so drastically restrictive of the executive volition as to become for one of these three reasons in conflict with the constitutional provision requiring the separation and the retaining separate of the three co-ordinate branches of government. [Article 3, Constitution of 1875.] That this is true is persuasively shown by the many statutes now in force making identically such prescriptions, as well as by the trend of the many well-considered cases dealing with this and cognate questions. [State ex inf. Hadley v. Washburn, 167 Mo. 680; State ex rel. v. Gordon, 236 Mo. 142; State ex rel. v. St. Louis, 216 Mo. 1. c. 96; Ex parte Lucas, 160 Mo. 218.] We conclude then that the condition of eligibility in an appointee that he shall “be a member of the leading party politically opposed to that to which the Governor belongs,” was a proper, valid and constitutional one, and one which the Legislature had the right to attach to the delegation of the power to appoint, as the only feasible method of carrying out the legislative desire for a nonpartisan hoard.

II. Coming now to the other branch of this constitutional question: Does the admitted and adjudicated invalidity of the latter part of the clause under discussion render void and bad the first part? We think not. As we have seen, the point chiefly sought was a non-partisan board of election commissioners. Regardless of the validity of the provision conferring a limited right of selection upon the State committee, the chief desideratum of the clause yet remains. This point was sought to be at-. tained by making certain the partisanship of those whom the Governor should appoint. If A. and B. were recommended by the State committees as being-Democrats, and C. and D. as being Republicans, some conclusiveness on this point of political affiliation at once attached by reason of the manner of selection. But this suggestion of names of six eligible citizens was a mere non-vital detail; the desideratum, a nonpartisan board, could be worked out without it, by simply requiring as a qualification of competency that appointees should be of a certain political faith.

We need not cite numerous cases from other jurisdictions or load down this opinion with text-book excerpts in order to prove that part, a section, a sentence or a clause of a statute may be constitutionally invalid and the remainder good. We may merely say that this is a rule wholly or well-nigh universal in all common law jurisdictions, and one to which this court has lent its concurrence. Valliant, J., in the case of State ex inf. v. Washburn, 167 Mo. 1. c. 697, said:

“The point is advanced that if the Act of 1899 is unconstitutional in the particular named, the whole act is void and tlie incumbent has no title to the office. The power attempted to be conferred on the partisan committee is not an essential element in the whole act. "Where the part of an act that is unconstitutional does not enter into the life of the act itself, and is not essential to its being, it may be disregarded and the rest remain in force; that is this case.”

This view was expressly approved in the later case of State ex rel. Tolerton v. Gordon, 236 Mo. 1. c. 176, where the court says, referring to the Washburn case:

“The court also held that although the part of the act providing the manner of making the appointment in order to secure a bi-partisan board was void, the remainder of the act was valid, and the court upheld the appointment made by the Governor contrary to the express requirement of law.”

As was so aptly stated by Graves, J., in his concurring opinion in the Tolerton case, 1. c. 186:

“Prom it (the law of 1899 — which is in this particular precisely similar to the law of 1911, now under discussion), however, we carve out one of the vital things in the minds of the legislative body and say enough is left to make a good law.”

We cannot state the rulé better or more briefly. We might state it in different language, by saying that, if after cutting out and throwing away the bad parts of a statute, enough remains, which is good, to clearly show the legislative intent, and to furnish sufficient details of a working plan by which that intention may be made effectual, then we ought not as a matter of law to declare the whole statute bad. [Cooley on Con. Lim. (7 Ed.), 247; State ex rel. v. Gordon, 236 Mo. 1. c. 171; State ex rel. v. Taylor, 224 Mo. 1. c. 474; State v. Bockstruck, 136 Mo. 335.]

This case is upon the facts and the thing sought to be done clearly to be distinguished from the case of State ex inf. Washburn, supra. In the latter ease the point up for ruling was whether “so much of the Act of 1899 as attempts to limit the power of the Governor in making’ the appointment to a choice of persons nominated by the city central committee of a political party, is an unwarranted encroachment on the Govern- or’s constitutional powers” and therefore void. It was held that it was invalid, and so we here hold as to so much of the Act of 1911, as confers a similar privilege of selection on the State committees of the party of the Governor and the party opposed to him politically. In the Washburn case the appointee possessed the required political eligibility and belonged to the designated political party; in the instant case the appointee is a member of the Progressive party, and it is insisted that the statute requires the selection of a Republican.

We are not able to see any reason why the provision contained in the first clause of the section under consideration should be invalid for any inherent or self-contained defects. This provision, in order to certainly secure a non-partisan board, in conferring on the Governor the privilege of appointment, coupled with the grant of the power of appointment certain conditions of qualification in the appointee, to-wit, that two of them, shall be from one party and two from another. Does this militate in any wise against that provision of our Constitution (Art. 3, Constitution of 1875) which requires the segregation of our tripartite governmental functions ? We think not. We have seen that as to officers such as election commissioners, the Constitution has lodged in the Legislature the power of authorizing others to make appointments, or (that which is tantamount) the right of delegating by statute to some one else the ministerial power of appointment. It says in effect to the Governor: “We have provided for certain officers whom we desire to have appointed; will you appoint them for us; doing so, in such wise as will effectuate our express intent of securing a non-partisan hoard?” It is not an invasion of the authority, or an invasion of the confines of a power given by statute or by the organic law to one co-ordinate branch of government by another such branch; but a valid grant of power by one of' such branches to another specially authorized by the Constitution. Aside from the Constitution and the laws. based thereon, the Governor has no power to appoint any officer in this State. The Legislature may say to some other executive body, officer or officers,- “You appoint,” and it is so, and nobody may bring the right into question. Compare the power of county courts to appoint highway engineers, justices of the peace and constables; the power conferred on Board of the Permanent Seat of Government to appoint a State Capitol Commission; the power of the Supreme Court to appoint a clerk, a marshal, a reporter, and the late law empowering the Supreme Court to appoint commissioners (of different political faiths, by express legislative limitation it may be noted in passing). Others might be collated, but to what good? The condition attached of belonging to a certain indefinitely designated political party is a mere condition of qualification, no different in its last analysis from both the statutory and constitutional requirements of age and learning, and residence, as applied to a judge of a circuit court, and other courts of record (Constitution, sec. 26, art. 6; Sec. 3343, R. S. 1909); or to the required -qualifications of a prosecuting attorney (Sec. 1000, R. S. 1909); or those of a State highway commissioner (Sec. 1. Laws 1913, p. 697); or those'of a deputy highway commissioner (Sec. 4, Laws 1913, p. 697). Such conditions as to differing political faith as a requisite qualification for a membership on one of our many boards is almost the statutory rule rather than the exception. For example, this qualification inheres to the hoard of curators'of the State University (Sec. 11098, R. S. 1909); to the regents of our several normal schools (Sec. 11067, R. S. 1909); to the State Board of Agriculture (Sec. 597, R. S. 1909); to the State Board.of Horticulture (Sec. 605, R. S. 1909); to the State Capitol Commission (Laws 1911, p. 108); as we have seen to the Supreme Court Commissioners, and to others, too numerous to mention here. The reason for these several requisites of different party affiliation is the same as that under discussion here, viz.: to procure non-partisan boards, in each case.

We are constrained to hold then, that the requirement of the Act of 1911 that two members of the board of election commissioners shall be members of the leading party politically opposed to the Governor, is valid and constitutional; that it is not rendered invalid by reason of the unconstitutionality of the remainder of the sentence, nor by any inherent defect contained in its own terms which trench upon the Constitution.

III. Respondent insists that the Governor in appointing him, and the Senate in confirming him, “determined a political question after an inquiry imposed by law,” and that therefore such action foreclosed judicial inquiry. The authorities urged up-011 I1S aS 11P'h°MirL8' this view are cases .where this court refused to control by mandamus the political and ministerial discretion of the executive by compelling him to issue commissions, or to do other acts strictly pertaining to the duties of the executive as a member of a co-ordinate branch of government.

If by this contention respondent means that as a matter of law we may not go behind the commission of the Governor, we answer that this point is fairly, well-settled by the case of State ex rel. v. Vail, 53 Mo. 97. In the above case the authorities purport to be reviewed, in so far as this State is concerned, and they were said to be on this point “conclusive on this court.” [State ex rel. v. Vail, 53 Mo. 1. c. 109; State ex rel. v. Bishop, 44 Mo. 229; State ex rel. v. Hays, 44 Mo. 230; State ex rel. v. Steers, 44 Mo. 223; State ex inf. v. McAdoo, 36 Mo. 452; State v. McBride, 4 Mo. 303.]

In the case of State ex rel. v. Steers, supra, Wagner, J., said:

“A person derives his title to an office by his election, and not by his commission; and if he holds and exercises the functions of an office without having been legally elected, it is unlawful holding, and he, may be ousted at the instance of the State, notwithstanding his commission. [Bashford v. Barstow, 4 Wis. 567.]”

Changing merely the words “election” and “elected,” to “appointment” and “appointed,” what is said above fairly well applies to the instant case.

If on the other hand respondent has reference to a question of fact, when he insists that the determination. of the Governor and Senate conclude us, the answer may well be that this would be true if the record were silent as to the political affiliation of respondent. The condition would then, however, arise from the entertaining of a presumption, rather than from the application of any inherent doctrine allied to that “divinity which doth hedge a king.” We have in the record, however, the clear cut charge that respondent is a member of the Progressive party, as well as his frank admission of the truth of this charge. Can we say in the light of this that respondent is a Republican? Would it not be tantamount to saying that black is white? While appointments to office have been known to change the political complexion of men, respondent stands here solemnly averring that he has not been so affected. Relator inquires with some considerable degree óf pertinence whether, if the Legislature had required the appointment of a male to this office and the Governor had appointed and the Senate had confirmed a female, would “she” have become a male ipso facto, to the extent of precluding judicial determination of the fact? We think not, though conceding that if the record were silent on this point of party or of sex, a Progressive might'be changed to a Republican and a female to a male, within the law’s purview from the application of the presumption of “right and solemn performance of a duty enjoined.”

IY. It is urged upon us as a question of fact that the Progressive party is from a “nation-wide” point of view the “leading party politically opposed to the . Governor.” Are we to be governed by the political conditions existing nationally, or by those of our own State? We take judicial notice of matters of current political history; of the political affiliation of the Governor of Missouri as well as of the relative strength of the Progressive party, the Republican party and the Democratic party in this State at the last general election. [1 Chamberlayne, Mod. Law of Ev., sec. 800.] From this we know that the Democratic party polled in this State at the last general election the greatest number of votes, followed by the Republican party and the Progressive party respectively in the order named. The leading party in this State politically opposed to that to which the Governor who appointed respondent belongs,, is then the Republican party, and not the Progressive party to which respondent belongs. No contention, indeed, is made on this point as upon a matter of fact. As such it is tacitly at least conceded; though it is urged that to the Governor and to the Senate was committed the duty of determining this fact in their discretion and that this determination concludes us, whether exercised with the facts or against them. We have discussed this contention already ánd need not again go into it further than to say that we disallow it, for it is after all based upon a fiction of law and a fiction of the laAv ought to yield in a direct attack to the facts when the latter stand admitted in an action. which, we think relator had the right to institute and this court to examine and adjudge.

We must ascertain the meaning of a statute by looking at it in a sense by the four corners. This statute provides that the “State committee of the said leading party politically opposed to that to which the Governor belongs” shall do certain things. It might well be, if respondent’s contention be correct, that the leading political party in a nation-wide sense would have neither adherent, voter, party, or organization in this State, thus by such logic leading up to a ridiculous and impossible situation. [Verdin v. St. Louis, 131 Mo. 1. c. 163; Perry v. Strawbridge, 209 Mo. 1. c. 642.] Besides this reductio ad ab sur dam, which would seem to settle this contention, certain presumptions coniine us to our own State. A statute is prima facie confined in its operation to persons and conditions within the territorial jurisdiction of the Legislature. [Beale on Rules of Legal Interp., p. 232.] “Prima facie every statute is confined in its operation to the persons, property rights or contract which are within the territorial jurisdiction of the Legislature which enacted it.” [2 Lewis’s Sutherland on Stat. Con., sec. 513.] We elect to our offices our own citizens, of our own State, under the,provisions of our own laws. We never elect by direct suffrage a citizen of another State to any office; these are' the elections at which the election commissioners act, and the elections which they are required to hold. We conclude then that it is too clear for argument that by the “leading party politi-' cally opposed to that to which the Governor belongs,” is meant the “leading party” in this State.

V. Finally it is urged that the passage of the Act of March 26, 1913, Laws 1913, p. 344, so far validates the appointment of respondent as to ren^er mi§’at01‘y the whole of this inquiry; that it converts this Jawsuit into an aeaclemie discussion, and makes of it a moot question merely..

It is more than possible that this is true as a matter of practice; also we may say, without offense, as a matter of practical politics. But it is not true as a matter of law. There is no emergency clause appended to this act, and it is not yet in force. (An emergency clause would in our view, however, add nothing toward making it apply.) The act by its terms in no wise purports to look backward or to be designed as a matter of law to be curative in its intent. This law bears none of the outward earmarks of a retrospective statute. Unless it bears such indicia, a discussion in the light of the rules of construction would seem to be but * ‘ weary, stale, flat and unprofitable, ’ ’ for our court has said in the case of State ex rel. v. Dirckx, 211 Mo. 1. c. 577:

“The settled rule of construction in this State, applicable alike to the constitutional and statutory provisions, is that, unless a different intent is evident beyond reasonable question, they are to be construed as having a prospective operation only. [State ex rel. v. Greer, 78 Mo. 1. c. 190; State ex rel. v. Frazier, 98 Mo. 426; Leete v. Bank, 141 Mo. 574; Shields v. Johnson County, 144 Mo. 76; Cooley on Constitutional Lim. (6 Ed.), page 77; Shreveport v. Cole, 129 U. S. 36.]”

This rule is also in consonance with the text-book law:

“It is well-settled rule of construction that laws relate to the future, and are not to be construed retrospectively, or to have a retrospective effect, unless, it shall clearly appear that it was so intended by the Legislature, and unless such construction is absolutely necessary to give meaning to the language used.” [6 'Am. & Eng. Eney. of Law, p. 939.]
“In every case of doubt the doubt must be resolved against the retrospective effect.” [36 Cyc. 1208.]

Whatever title respondent possesses to the office he claims was acquired by him and has its existence, and derives its virtue, if any, solely and alone from the provisions of the Act of 1911 under which he was appointed. He must stand or fall by that law, since he has never been appointed under any other law and obviously may never be appointed under.the Act of 1913 or any other act, regardless of the creation of a vacancy. We are not saying that any reason is known to exist militating against his appointment 'under the Act of 1913. Upon this point we do not pass, however.

Other points urged we need not discuss, in the light of the fact that the amendment of the Act of 1911 by the Act of 1913, will shortly, when it shall become effective, so change the law as to render much that has been said and all further that could be said some • what like unto ancient history.

It follows that, 'under the provisions of the Act of 1911, respondent was not eligible to appointment as a member of the Board of Election Commissioners, and that the writ of ouster prayed for should issue, and it is so ordered.

’Lamm, G. J., Woodson, Brown, Bond and Walker, JJ., concur; Graves, J., concurs in result only.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    WILLIAM CAPP et al. v. CITY OF ST. LOUIS, Appellant.
    In Banc,
    June 28, 1913.
    t. PARKS: Safety. Public parks are principally maintained for the safety, recreation and amusement of the children of the toiling masses, in order that such children may have a safe and healthful resting place, morally and physically, while their parents toil for a livelihood; and they must be kept reasonably safe for immature, unprotected and indiscreet children.

      2. -: -: Sewer Outlet: Drowning of Children: Turn-Table Doctrine. The turn-table doctrine has no application to a drowning case where there was a large creek or small river running through a very large city park, in which children through the summer months were in the habit of wading, and into which creek or river^ a large storm sewer emptied, digging out a deep and wide and unguarded hole and pool, with stone steps leading down to it and into which a child fell and was drowned — the difference being that the child was not a trespasser, as in turn-table eases, but the injury occurred where the child had a right to be.
    3. -: -:--: -: Negligence Question for Jury. The maintenance in a public park of an unguarded pool, ten or twelve feet deep and sixty wide, calculated to attract children into a danger which they cannot appreciate, is such negligence on the part of the city in a suit by the parents of a child drowned therein as authorizes the submission to the jury of the question of whether the city exercised ordinary care for the safety of the child. The city owned a large public park, which thousands of persons, and especially children, visited daily; a large creek ran through the park, uncovered and uninclosed its entire length, and in it children were in the habit of wading, playing and fishing, especially in summer months; a large storm sewer emptied into this creek, and at its mouth there was a pool of water from eight to twelve feet deep at its center and sixty wide, caused by the water of the sewer digging out a hole in the bed of the river; stone steps led down to the water on each side of the sewer’s mouth; the pool had existed for years, was unguarded, and could have been guarded at a small cost, and plaintiffs’ child was found drowned in the pool on July 10th. Held, that the court properly submitted to the jury the question of the city’s negligence.
    4. -: -: -: -: Conjecture. The amount of water in the creek, into which the storm sewer emptied,'in its ordinary and usual stages was very small, varying in depth from a few inches to fifteen inches in its deepest places, for a distance of one thousand feet above and below the pool of water, sixty feet wide and from eight to twelve feet deep at its center, at the outlet of the sewer, in which the body of the child was found on July 15th. The last seen of the child prior to that date was on July 10th, when he and the other boy of about the same age, whose body was also found in the pool, were wading in the creek about one hundred feet above the pool. When his body was discovered his pantaloons were rolled up as far as they could be, and there was some evidence that the sleeves of his shirt were likewise rolled up. Held, sufficient evidence to sustain a verdict that the child was drowned in the pool.

      5. -: -: -: -: Presumptions: Ordinary Care: Assassination. The presumption is that the child was exercising ordinary care at the time he was drowned; also, that he was not assassinated, for the law never presumes that a crime has been committed.
    Appeal from St. Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge.
    Affirmed.

      Lambert E. Walther and William E. Baird for appellant.
    (1) The court erred in refusing to instruct the jury at the close of all the evidence that the plaintiffs were not entitled to recover; and this because: (a) There was not one scintilla of evidence as to how the boy came to be in the pool, (b) Because in thus submitting the case to the jury, the jury were permitted to speculate as to the manner in which the boy came to be in the pool. (2) It is a well-settled rule that if an injury may have resulted from more than one cause, for one of which and not the other, the defendant is liable, it must be shown with reasonable certainty that the cause for which the defendant may be liable produced the result, and if the evidence leaves it to conjecture, the question cannot be submitted to the jury. Warner v. Eailroad, 178 Mo. 125; Epperson v. Telegraph Co., 155 Mo. 346; Smith v. Bank, 99 Mass. 605; Searles v. Eailroad, 101 N. Y. 661.

      Taylor Yi. Young and Willard R. Guest for respondents.
    (1) The appellant owed respondents the duty to exercise ordinary care, in the maintenance of Forest Park, to keep it free from the nuisance complained of. Carey v. Kansas City, 187 Mo. 715; Barthold v. Philadelphia, 154 Pa. St. 109; Indianapolis v. Emmelman, 108 Ind. 530; Price v. Water Co., 58 Kan. 551; McMahon v. Pekin, 154 111. 141; Stout v. Railroad, 17 Wall. 66L; Edmondson v. Moberly, 98 Mo. 523; Lowe v. Salt Lake City, 44 Pac. 1050; Schmidt v. Distg. Co., 90 Mo. 294; Straub v. St. Louis, 175 Mo. 413; Williams, Municipal Liability for Tort, sec. 184. (2) The evidence was sufficient to go to the jury on the question, whether the deceased met his death by being* drowned in the pool at the. mouth of the sewer, by falling off the stone steps. Appellant admits in its answer the death of deceased was caused by drowning. The presumption is in favor of respondents that the deceased was exercising ordinary care for his own safety at the time he met his death. As the water became gradually deeper on either side of the pool up and down the River Des Peres and being at least six feet deep immediately off the stone steps, it will be presumed, until the contrary is shown (and that burden was on appellant) that' deceased would not have deliberately waded beyond his depth, but rather fell off the steps and was drowned while playing thereon with his companion Ulrich, who was at the same time also drowned in the sanie pool. Buesching v. Gaslight Co., 73 Mo. 233; Lancaster v. Ins. Co., 62 Mo. 121; Weighman v. Railroad, 223 Mo. 718; McGahan v. Transit Co., 201 Mo. 507; Ekhard v. Transit Co., 190 Mo. 613. Even if this were not the law, appellant would still be liable according to its own theory, as the testimony shows-the water above and below this- pool for a distance of over 1000 feet was only from one foot to fifteen inches in depth; defendant having admitted in its answer deceased was drowned while wading in the River Des Peres. Indianapolis v. Emmelman, 108 Ind. 530; Pekin- v. McMahon, 154 111. 141; Linnberg v. Rock Island, 157 111. App. 527.
   WOODSON, J.

The plaintiffs brought this suit in the circuit court of the city of St. Louis, against the defendant, to recover the snm of $10,000 damages sustained by them, on account of the death of their minor son, Cecil Capp, caused by the alleged negligence of the city in not properly guarding a pool of water' (which will be presently described) in Forest Park, in which the deceased fell and was drowned.

A trial was had before the court and a jury, and after hearing the evidence and the instructions of the court, the jury found the issues for the plaintiffs and assessed their damages at $2500. Upon the verdict of the jury, the court rendered judgment for the plaintiffs and after taking the proper preliminary steps therefor, the defendant duly appealed the cause to this court.

No question is raised as to the sufficiency of the pleadings,^ and we will, therefore, pass them by.

-The facts are practicálly undisputed, and are as follows:

The plaintiffs were husband and wife and the deceased was their' lawful son. The city of St. Louis is a municipal corporation organized and existing under the laws of the State of Missouri, known as the ■“Scheme and Charter.” Forest Park is a public park belonging to, and was under the management and control of the city.

Through the park ran a small stream of water known as the “River Des Peres.” Many years prior to the happening of this unfortunate incident, the city constructed what is known in the record as “Euclid Avenue Storm Sewer,” which drained a large part of the city of St. Louis, as well as' a considerable part of the territory-of St. Louis county, and emptied into the River Des.Peres at a point in the park where the deceased was drowned.

The park was large, having an. area of more than fourteen hundred acres, and said river, in its ordinary stages, was insignificant, no larger than an ordinary creek, but in times of storm the waters thereof, accompanied with, those of said sewer, became and was a mighty torrent, swift, turbulent and terrible in its flow to the Meremac and to the “Father of Waters.”

At the junction of said sewer with said river, the waters of the former, in full flow, had, many years prior to the accident, washed out the bed of the river and thereby caused to exist therein an excavation about sixty feet in diameter and of a depth varying from a few inches, at the outer margin, to some ten or twelve feet in the center, which for years had been filled with, water and refuse from said sewer and river.

At the junction of the river and the sewer, the outlet thereof is about ten feet in breadth and fourteen in height, with perpendicular walls constructed of stone, with caprocks on top, which are about eighteen inches higher than the adjacent surface of the ground.

Immediately adjacent to the mouth of the sewer, there are four stone steps, twelve feet long and six-inches thick, leading therefrom down to the water, two of which are generally covered with the water of the pool and the other two are above the water line.

The River Des Peres is wholly unguarded in its entire length, as it passes through the park; and boys and children, with the knowledge, if not the acquieseense, of the city, have been in the constant habit of wading in the bed of said river, from early spring until late fall, and to skate thereon in the winter time.

The park is one of the great public resorts of the world, constantly frequented by many men, women and children. The World’s Fair was held therein in 1904, which was visited by millions of people, and it has continued to be the greatest public resort of the city ever since. It is highly improved, carefully attended and cared for, constantly guarded and policed, by and at great cost to the city.

Some two hundred feet from the mouth of the • sewer, there is a fine spring, and a path leading therefrom, to the Lindell Boulevard and Kingshighway entrances to the park, passes within a few feet of the mouth of said sewer. This was the most frequented part of the park.

The last time the deceased was seen alive was July 10,1908, when he and another boy named Ulrich, about the same age, were seen by a mounted policeman named Hutton, wading in said river about one hundred feet above said pool. On or about the 12th day of July, the body of Ulrich was discovered floating in said pond, and when the father of Cecil Capp heard of that fact, knowing that the deceased and Ulrich left home together, he began to search the pond for his son, with the result that on the 15th of July he found the body of his son therein. Both of them had been drowned.

"When discovered, the pants of. the deceased were rolled up as far as they could be, and there was some evidence which tended to show that the sleeves of his shirt were likewise rolled up.

The evidence also showed that boys and children generally were in the habit of wading in said river, and were in the habit of fishing for crawfish therein, and playing in and about the mouth of the sewer and on the steps mentioned.

Such additional facts as may be necessary for a proper disposition of the case will be considered in the course of the opinion.

I. The city assigns but two errors in its brief, but discussed a third in the oral argument of the case in this court, namely, that there was no evidence of negligence on the part of the city in keeping, managing and controlling the park. We will consider this question first, but preliminary thereto it should be borne in mind that the public parks of the cities, while designated for the use of all classes, nevertheless, it is common knowledge, are in fact more generally used and occupied by the middle and poorer classes of our citizens who have not the means to justify them in going to the mountains, the sea shore or foreign countries for rest and recreation, as is the custom and practice of the wealthy and more fortunate class.

During the open and warm seasons of the year the parks are usually filled with the women and minor children of the poor, and especially the latter, who are usually sent there alone for safety, recreation and amusement, while their parents are down town earning their bread by the sweat of their faces. One of the most important, if not the principal quality or beneficial element of a public park, is the safety it throws around the unprotected youth and indiscreet of the State, placed therein by their toiling parents, chiefly for the safeguards supposed to be thrown around them and incidentally for play and recreation, while they, the parents, earn a living for themselves and children. Were it not for the supposed safety of the parks, the poor of the cities would be compelled to either personally guard their minor children, which would materially impair their earning power, or they would have to turn their children loose upon the public streets of the city, where they would be constantly liable to come in contact with the numerous vices and dangerous agencies ever present therein.

It is largely for this protection of life and limb, and the separation of the youth of the country from vice and dangers, that these parks are created and maintained, at such enormous cost and expense to the cities and people of the State, without which they would be absolutely worthless.

That being unquestionably true, the public parks of the cities should be maintained in a reasonably safe condition for those who frequent and use them, and especially for the unprotected youth.

The evidence is undisputed that the city of St. Louis created and maintains this inexcusable nuisance, which is a constant menace to the lives of the children who visit Forest Park. Common sense and common experience teach us that this inexcusable nuisance can be abated at a trifling expense to the city, probably at a sum not to exceed one-half of the cost of defending this suit; and why should it not be done? It has already claimed for its vicious reward the lives of two bright and innocent boys, who were as sweet, near and dear to their parents as our children are to us. But no, echoes the city, through the voice and pen of her able and worthy city counselor, I will maintain this horrible nuisance, right in the heart of the principal play-ground of the children of the metropolis of this State, which is giving forth its offensive odors, and sickly and deadly germs, every day and'night of its existence, to say nothing of its every-yawning mouth, every ready to swallow up the body of any and all children who may happen perchance to play thereat, or who may wade into its unknown depth, but well-known filth and slime.

And in this connection it might be said that much confusion has been injected into this class of cases by applying to it the doctrine- applicable to the “turntable” cases. That rule has no application whatever to this case, or to the class to which it belongs.

In this class, the injury occurred and of necessity must occur at a place where the injured party had both the legal and moral right to be, while in the turntable cases the injury occurred and of necessity must have occurred on private property, a place where the injured person had no legal right to be, but was induced to go by an attractive piece of machinery or other matters equally attractive to children.

The confusion mentioned grows out of the fact that there is another class of eases akindred to this, where the injury occurs upon private property, namely, in the reservoirs of waterworks of the municipalities of the country or in other private ponds and pools of water. In those cases the injured child is concededly a trespasser, but is attracted there by the water of the reservoir, pool or pond which the owner knows will instinctively attract children; and in some of the States, even in the latter class, the injured party or his representative is permitted to recover, while in others that right is denied.

The authorities supporting the latter class are cited as authorities in the class to which the case at bar belongs, for the reason that if a recovery can be had in the former, where the injured party is a trespasser, then a fortiori a recovery should be had in this, the latter, where the injured party had a lawful right to be.

In this case, the son of the plaintiffs lost his life in a pool of water, located in a public park, a place where the child had the right to be; but the record fails to show that either the boy or his parents had any knowledge of the depth of the pool.

So in the consideration of this case, care should be taken so as not to confuse the principles of law governing it with those controlling the turn-table cases, for the obvious reason that one might be entitled to a recovery in this class and not in that.

Returning to the contention of counsel, previously stated, namely, that the record contains no evidence of negligence on the part of the city, the uncontradicted evidence shows that Forest Park was a public resort for men, women and children, and that thousands visited it daily, and especially children, boys and girls; also that they were in the habit of wading, playing and fishing in said river, and playing on and about the steps at the mouth of the sewer, where there was a pool of water from eight to twelve feet deep in the center. This pool was caused by the waters of the stream flowing down and over the steps mentioned, and washing the dirt and soil from the bed of the river, thereby making an excavation therein which filled np with the waters thereof.

This pool had existed for years, and unquestionably the city had knowledge of its existence, while the evidence shows it could have been filled up or guarded at a very small cost.

The park being a public place, and containing this unguarded pool of water, and frequented at the invitation of the city, by many children, young and indiscreet, who we all know are greatly attracted by pools of water, bubbling brooks and running streams, made the situation highly attractive and dangerous to any and all children who might approach the place and play in or about the stream and pool.

That evidence, in my opinion, was sufficient to warrant the court in submitting to the jury the question, whether or not said conduct of the city was such as an ordinarily prudent person would have done under similar circumstances. If it was, then the city was not liable for the damages done; if, upon the contrary, it was not, then the city was liable.

That was a question of fact which the trial court, in my opinion, properly submitted to the jury, which, I believe, is supported by the following authorities: Williams, Municipal Liability for Tort, sec. 184; Carey v. Kansas City, 187 Mo. 715; Barthold v. Philadelphia, 154 Pa. St. 109; City of Indianapolis v. Emmelman, 108 Ind. 530; City of Pekin v. McMahon, 154 Ill. 141; Price v. Water Co., 58 Kan. 551; Stout v. Railroad, 17 Wall. 657; Edmondson v. City of Moberly, 98 Mo. 523; Lowe v. Salt Lake City, 13 Utah, 91; Schmidt v. Kansas City Distilling Co., 90 Mo. 1. e. 294; Straub v. City of St. Louis, 175 Mo. 413.

In the case of Carey v. Kansas City, supra, the city owned and converted a part of a block of ground, on which was located its water reservoir, into a public park, and on a level with the coping of the reservoir wall, the city built a walk or parkway, and on the outer edge of the coping, it built a wire fence four and a half feet high. While the eleven-year-old son of the plaintiffs was playing in and about the premises, he fell into the reservoir and was drowned.

This court, in a unanimous opinion written by Fox,- J., held that the care required of the city was that care which an ordinarily prudent person would have exercised under similar circumstances. But under the facts of that case, the court further held, and properly so, that the city was under no legal obligation to construct a fence around the reservoir which would be impossible for boj^s to climb over, but only such a fence as would prevent children who had reasonable respect for the wishes of the owner of the property from trespassing upon it.

That case clearly holds, and properly so, that the law imposes upon Kansas City the imperative duty of keeping the public parks thereof in a reasonably safe condition for persons using the same for pleasure, amusement or recreation, and especially for children while engaged in their innocent sports, plays and recreations.

In the case of Barthold, the Supreme Court of Pennsylvania tersely stated the law and facts as follows :

“Turning therefore to the evidence we find it was shown that the pool or well in which the plaintiff’s son lost his life was upon ground acquired by the city some six months before the accident, for the purpose of adding it to Fairmount Park. It was not only upon the public grounds but was open of access to persons of all ages. The wall that inclosed it was lower than the surrounding surface. The plaintiff’s son came to the pool to wash his shoes and sat down upon a stone, which was part of or was lying upon this wall. The stone tipped under his weight and he fell backward into the water and was drowned. The stone on which he sat fell at the same time into the pool. Whether it was the exercise of proper care on the part of the city to leave this pool for six months in the condition described, open to the access of children, in the public grounds, was not a question of law, but of fact, and properly submitted to the jury. 'We have nothing to do with the correctness of their finding.”

There is no difference whatever in principle between that case and the ease at bar; the facts, however, in this case show far more culpability on the part of the officers and agents of the city of St. Louis, than those did on the part of the officers of Philadelphia.

In the case of City of Indianapolis v. Emmelman, supra, the petition charged that the city, while constructing a bridge in one of the streets thereof, made an excavation in the bed of a small stream where it crossed said street; also constructed a levee from the bank of the stream to said excavation or pit, and knowing that the children of persons residing near there, were in the habit of playing in the absence of the workmen, without safeguards of any kind, and in' consequence thereof the child of the defendant (in error) without negligence on his part, while at play, fell into the pit and was drowned, etc. The city demurred to the petition, for the reason that it did not state facts sufficient to constitute a cause of action against it, which was by the trial court overruled. Thereafter, the city carried the case to the Supreme Court of Indiana on writ of error (I suppose, though the report says appeal) and the court in sustaining the rulings of the trial court used this language:

‘ ‘ The initial proposition upon which the appellant rests its argument against the sufficiency of the complaint is, that it does not appear from the facts averred that the city was guilty of any breach of duty, in respect to the plaintiff or his child. That the liability of the city can only be affirmed upon the theory that it has violated its duty in the premises, is too clear for serious controversy.
“Speaking upon the subject as applied to an adnlt, this court, in the case of Evansville, etc., Railroad Co. v. Griffin, 100 Ind. 221 (50 Am. R. 783), used the following language: ‘Before it can be affirmed, that the appellant was negligent,"with respect to the transaction concerning which its omission is imputed to it as wrongful, it must appear that it was under some legal duty or obligation to the plaintiff, at the time when and place where the injury occurred, which was left undischarged. If it is liable at all, this is the foundation upon which its liability rests.’ [Lary v. Cleveland, etc., Railroad Co. 78 Ind. 323, 41 Am. R. 572.] .
“In respect to cases such as we are considering, ' a learned author says: ‘It is important to bear in mind, in actions for injuries to children, a very simple and fundamental fact, which in this class of cases is sometimes strangely lost sight of, viz., that no action arises without a breach of duty.’ [2 Thomp. Neg., p. 1183, note.]
“With this rule in view, and with the further concession that in dealing with cases which involve injuries to children, courts and juries have sometimes strangely confounded legal obligation with sentiments that are independent of law, it must nevertheless he kept in mind that wherever an adult may he without incurring the imputation of being an intruder, a child may also go free from the like imputation. The same circumstances which would justify a recovery by one who had reached years of discretion, and had sustained an injury from the act of another, while free from fault, would justify a recovery by an infant of such years as to he incapable of fault, provided its parents or guardian were also guilty of no neglect which could he imputed to the child. And so conversely, except when a child is seen in time so that injury to it might he avoided, persons who are lawfully using, or carrying on business on their own premises, are not liable for injuries to children, unless under the same circumstances they would have been liable to others who were equally free from fault.
“The conclusion to be drawn from the approved cases on the subject is, that the owner of premises, who has neither expressly nor impliedly invited the public to come upon or pass over his grounds, is under no legal obligation to keep them free from pitfalls, or in a condition of safety, for those who in the pursuit of their own pleasure or convenience pass over such premises, even though it be with the acquiescence of the owner. Persons passing over premises of that description exercise the privilege with its attending perils, and this without distinction as to whether or not they have arrived at an age of discretion.
“Unless contrivances are placed on such premises, with an actual or constructive intent to hurt intruders, the proprietor is not liable for injuries resulting to persons, by reason of the condition in which' the premises have been left, or from the prosecution of a business thereon, in which the owner had a right to engage. [Evansville, etc., Railroad Co. v. Griffin, 100 Ind. 221, 225, and cases cited; Gillespie v. McGowan, 100 Pa. St. 144; Gramlich v. Wurst, 86 Pa. St. 74 (27 Am. R. 684); Cauley v. Pittsburg, etc., Railroad Co., 95 Pa. St. 398 (40 Am. R. 664); McAlpin v. Powell, 70 N. Y. 126 (26 Am. R. 555); Hargreaves v. Deacon, 25 Mich. 1; Burdick v. Cheadle, 26 Ohio St. 393 (20 Am. R. 767).]
“The foregoing and many other analogous cases, which might be cited, proceed upon the theory that the person sought to be held liable, had done nothing to produce injury to others who voluntarily strayed upon or invaded the premises on which the injury occurred.
“In all such cases the owner may dig an excavation in his own land, not substantially adjoining a public highway, and no action lies against him by one who has fallen into the excavation. [Hardcastle v. South Yorkshire R. W. Co., 4 Hurlst. & Nor. 67; Hounsell v. Smyth, 29 L. J. 203 (7 C. B. N. S. 731); Pittsburgh, etc., R. W. Co. v. Bingham, 29 Ohio St. 364 (23 Am. R. 751); Sweeny v. Old Colony, etc., R. R. Co., 10 Allen, 368; Knight v. Abert, 6 Pa. St. 472; Nicholson v. Erie Railway Co., 41 N. Y. 525.]
“But there is a clear distinction between the cases cited and the case where an excavation is made in or so near a highway as that one, while rightfully using the highway, may, without fault, sustain injury by falling into the excavation. Not less clear is the distinction between a case in which an excavation is made, or something calculated to amuse or attract children is done or left, at a place where the 'child has a right to be, and one in which the same thing is done at a place where, in order to reach the place of danger, the child becomes an intruder upon the premises of another.
“Whoever while passing along, or when properly in a public street, suffers an injury, while exercising the degree of care which the law requires of such persons, by falling into an excavation which has been made in or near such street, is entitled to maintain an action for such injury against the person making the excavation. In such a case, the person making the excavation comes under an obligation to make it safe in respect to all persons who 'have a right to use the street.
‘ ‘ Streets are open to persons of all ages, and children are and must be permitted to some extent at least, to go upon the streets of towns and cities, without incurring the imputation of negligence upon themselves or their parents. It would be intolerable to hold as a matter of law, that a parent, having no knowledge of the presence or probability of danger, was nevertheless guilty of negligence in permitting a five-year-old child to pass beyond the door yard-into the street without an attendant. Whoever, therefore, does anything in, or immediately adjacent to, a public street, calculated to attract children of the vicinity into danger, which they cannot appreciate, owes the duty of protecting them by suitably guarding the source of danger, or in case this is impracticable, by giving timely warning to their parents and* guardians of the existence of the danger. [City of Chicago v. Hesing, 83 Ill. 204 (25 Am. R. 378); City of Chicago v. Major, 18 Ill. 349; Niblett v. Nashville, 12 Heisk. 684: (27 Am. R. 755); Graves v. Thomas, 95 Ind. 361 (48 Am. R. 727); McAlpin v. Powell, supra; Beck v. Carter, 68 N. Y. 283 (23 Am. R. 175); 2 Dillon, Mun. Corp., sec. 1005.]
“The right of a child to go or be in or upon a street is in no way dependent upon the occupation or pecuniary condition of its parents. [Mayhew v. Burns, 103 Ind. 328.]
“If a person of discretion, while attempting to pass over the stream in question, where it crossed Spruce street, had fallen into the pit into which the child fell, no doubt could be entertained that such person, if free from contributory • fault, might have recovered for an injury sustained, or if the plaintiff, without knowledge of the pit, had permitted his horse to go there for water, and it had fallen into the unguarded hole and had been injured, the liability of the city would have been beyond question.
“As we have seen, the liability of the city is precisely the same in case a child, rightfully in a street, sustains injury from a defect created therein by the city, as in. the case of an adult, who is injured while free from fault, from a like cause.
“It would shock all sense of justice to hold that a city might dig a pit in a street and leave it so that children might be lured into it, and yet deny to parents, who were without fault, any remedy for the loss of a child.
‘ ‘ Considered in the light of what has been said, it seems clear to us that the demurrer to the complaint was properly overruled.
“The excavation into which the appellee’s son fell was made in Spruce street, at a point where it crosses Pleasant "Run. It was made in the bed of a shallow stream, and left alone unguarded on a July day, with knowledge that children were accustomed to play in the vicinity. The city must be held to know that 'children are attracted to such a place in July weather. They were not intruders. It was gross carelessness on the part of the city, with such knowledge, to leave an unguarded pit filled with water, in the street, into which an unsuspecting child might fall.”

The same law that requires a municipal corporation to keep its streets free from nuisances, and reasonably safe for those who lawfully use them, also imposes upon it the duty to keep its public parks and other public places in a reasonably safe condition for all who lawfully frequent and use them.

The case of Price v. Water Co., 58 Kan. 551, is very interesting, able and instructive. While the defendant in that case was a private corporation and the accident occurred on private property, nevertheless, it is a strong* authority in support of the defendant’s liability in the case at bar. In fact, the reason is all the stronger for holding a public or municipal corporation liable for the death of a person occurring on public grounds, than it is for holding a private' corporation responsible therefor when occurring on private property.

The opinion was written by Chief Justice Poster, conceded to be one of the ablest jurists of the country; the facts and the law applicable thereto were stated in the following language:

“Melrose H. Price, the son of plaintiffs in error, a bright, intelligent boy of about eleven years of age, was drowned in one of the reservoirs of the defendant in error. These reservoirs were two in number, and were situated in or near the corporate limits of the city of Atchison, in immediate proximity to a section of the residence portion of the city. They were of unequal size; one having a capacity of about 1,100,000 gallons, the other, about 3,000,000 gallons. The smaller one was used as a ‘settling basin,’ into which the water was pumped,.and from whence it was discharged into the larger one through a pipe. The opening of this pipe into the larger basin was covered with an ‘apron’ made of lumber, and designed to break the force of the water discharge and prevent injury to the walls of the reservoir. It was partially buoyed by the water, and rose and fell as the water supply increased or lessened. Por four feet from the top the walls of the smaller reservoir were perpendicular, and thence slanted to the bottom; and its basin was about ten feet in depth in the deepest part. The walls of the larger reservoir slanted at an angle of about forty-five degrees, and its basin had a depth in its lowest part of about fifteen feet. ■ It would be difficult, if not impossible, for a person falling’ into the larger basin to get out unaided, on account of the steepness of the walls. These reservoirs and appurtenant grounds occupied about three acres, and were attractive places for children, many of whom frequented there for fishing and for other sports. They were inclosed with a barb-wire fence ten to twelve wires high. There were two gates through the fence, which, however, were always kept closed, and two rudely constructed contrivances designed for stiles, but being; as described by some of the witnesses, ‘sheds,’ or large boxes, nailed to adjacent trees and inclosing most of the wires, but upon and over which it was not difficult for boys to climb from the outside. A watchman and custodian of these grounds was employed by the defendant. He was aware of the habit of the boys of the town to climb over the stiles, cmd permitted them to do so without objection. The boy, Melrose, without the consent or knowledge of Ms parents, went with some companions to the reservoirs in question to fish and play, and, venturing upon the apron before described, for the purpose of crossing from one part of the reservoir wall to another, the end which projected out upon the water tank, precipitating him into the basin, where he drowned.
“Immediately upon starting to go upon the apron, one of his companions called to him and warned him of the danger of so going, saying to him he might fall in. To this he replied ‘ Oh, no! ’ His parents had frequently warned him of the danger of going to the reservoir, and he had trespassed there but once before, and then without their knowledge.
“The plaintiffs in error sued to recover damages for the loss of their son, occasioned by the .negligent maintenance of the reservoir and the negligence of the defendant in permitting him access to the dangerous situation described. The above statement summarizes the evidence for the plaintiff. To tMs evidence a demurrer for insufficiency to prove a cause of action was sustained. This action of the court is alleged as error, and is brought here for review.
“The contention arising upon the above state of facts divides itself into two principal questions: First, "Was the defendant in error negligent, as to the deceased boy, in maintaining the dangerous reservoir? and, second, Was the deceased guilty of contributory negligence in venturing upon the slanting wall and projecting apron? These are questions of fact, and they should have been left to the jury for determination. They are not questions of law for decision by the court.
“It is, however, contended by the defendant in error that, inasmuch as the deceased was a trespasser upon its grounds, it owed to him no duty to guard against the accident which occurred. Without doubt, the common law exempts the owner of private grounds from obligation to keep them in a safe condition for the benefit of trespassers, idlers, bare licensees or others who go upon them, not by invitation, express or implied, but for pleasure or through curiosity. [Cooley on Torts (2 Ed.), 718; 1 Thompson on Negligence ; 303; Dobbins v. M. K. & T. Railway Co., 41 S. W. 62.] The common law, however, does not permit the owner of private grounds to keep thereon allurements to the natural instincts of human or animal kind, without taking reasonable precautions to insure the safety of such as may be thereby attracted to his premises. To maintain upon one’s property enticements to the ignorant or unwary, is tantamount to an invitation to visit, and to inspect and enjoy; and in such eases the obligation to endeavor to protect from the dangers of the seductive instrument or place follows as justly as though the invitation had been express. The rule collected out of the authorities is vigorously, but not too strongly, stated in 1 Thompson on Negligence, 304, 305:
“ ‘There is also a class of cases which hold proprietors liable for injuries resulting to children although trespassing at the time, where, from the peculiar nature and open and exposed position of the dangerous defect or agent, the owner should reasonably anticipate such an injury to flow therefrom as actually happened. In such case, the question of negligence is for the jury. It would be a barbarous rule of law that would make the owner of land liable for setting a trap thereon, baited with meat, so that his neighbor’s dog, attracted by his natural instincts, might run into it and be killed; and which would exempt him from liability for the consequences of leaving exposed and unguarded on his land a dangerous machine, so that his neighbor’s child, attracted to it and tempted to intermeddle with it by instincts equally strong, might thereby be killed or maimed for life. Such is not the law.’
“The principle involved is the same as that upon which those actions known as the ‘turn-table cases’ have been resolved, and in which it has been held, with few exceptions, that the maintenance, in an unguarded manner, of a dang'erous apparatus for the shifting’ of locomotives, attractive to children residing or accustomed to playing near by, constitutes negligence upon the part of the companies. .In one of these cases, it was quite well remarked by Mr. Justice Valentine:
“ ‘Everybody knowing the nature and instincts common to all boys, must act accordingly. No person has a right to leave, even on his own land, dangerous machinery calculated to attract and entice boys to it, there to be injured, unless he first take proper steps to guard against all danger; and any person who does thus leave dangerous machinery exposed, without first providing against all danger, is guilty of negligence. It is a violation of the beneficent maxim, Sic utere tuo ut alienum non laedas. It is true that the boys in such cases are technically trespassers. But even trespassers have rights which cannot be ignored, as numerous cases which we might cite would show.’ [Kan. Cent. Railroad Co. v. Fitzsimmons, 22 Kan. 691.]
“The reasons upon which these cases proceed, and the authorities supporting the rule, are strongly set forth in Keffe v. The M. & St. Paul Railroad Co., 21 Minn. 207. They are, in brief, that, where a person maintains upon his premises anything dangerous to life or limb and of á nature to invite the intrusion of children, he owes them a duty of precaution against harm, and is liable to them for injury from that thing, even though their own act, if not negligent, puts in operation its hurtful agency. One may not bait his premises with some dangerous instrument or quality, alluring to the incautious or vagrant, and then deny responsibility for the consequences of following the natural instincts of curiosity or amusement aroused thereby, without taking reasonable precautions to guard against the accidents liable to ensue. Rights can only be enjoyed subject- to those limitations which regard for the weakness and deficiencies of others dictate to be humane and just. This rule has been applied, not only in the ‘turn-table cases,’ but to others In which dangerous situations have been negligently maintained, and especially to eases of death or injury by falling into unguarded pools or vats of water. [Brinkley Car Co. v. Cooper, 60 Ark. 545; City of Pekin v. McMahon, 154 Ill. 141.]
- “Counsel for defendant in error endeavors to distinguish the ‘turn-table’ and other like cases from the one.under discussion, upon the ground that, in such first-mentioned cases, the dangerous instruments or places were not inclosed, so as to exclude or warn trespassers, while in the present case, the reservoirs had been so fenced as to render access to them difficult, to say the least, and in any event to operate as notice-to stay on the outside because of the dangerous situation within. Whatever merit such precautionary measures might have under other circumstances, it is sufficient to say that, in this case, they were not reasonably effective; because it was the daily habit of trespassing boys to mount the fence and frequent the reservoirs on the inside, and this habit was known to the company’s responsible agent, and was not only tolerated but went unrebuked by Mm. Knowing the fence to be ineffective either as barrier or warning, it was the duty of the company to. expel the intruders, -or adopt other measures to avoid accident. Whatever advantages the defendant in error might have gained from the erection of a reasonably effective barrier or warning, is neutralized by the facts of its knowledge that the boys did trespass, and its permission to them to do so. It is as though no fence at all had been erected. ’ ’

In the case at bar, the deceased child, in addition to having been attracted to the stream and pool, in which he was drowned, by his strong boyish instincts to play, wade, paddle and- fish in the waters thereof, and all other children of the city, and adults for that matter, were invited upon the premises to indulge without restraint those childish desires, unprotected from the great dangers incident to their very existence.

The case of the City of Pekin v. McMahon, 154 Ill. 141, was a suit by the parents of a child, eight years old, to recover damages for his death, caused by the alleged negligence of the city, in maintaining a deep pit on lots belonging to it, filled with water, and only partially fenced, into which he fell, while playing about it, and was drowned. The Supreme Court of Illinois, in passing upon that question used this language:

‘ ‘ The general rule is well settled, that the private owner or occupant of land is under no obligations to ■strangers to place guards around excavations upon his land. The law does not require him to keep his premises in safe condition for the benefit of trespassers, or those who come upon them without invitation either express or implied, and merely to seek their own pleasure or gratify their own curiosity. [1 Thompson on Neg., p. 303; 2 Shear. & Red. on Neg. (4 Ed.), sec. 715.] An exception, however, to this general rule exists in favor of children. Although a child of tender years, who meets with an injury upon the premises of a private owner, may be a technical trespasser; yet the owner may be liable, if the things causing the injury have been left exposed and unguarded, and are of such a character as to be an attraction to the child, appealing to his childish curiosity and instincts. Unguarded premises, which are thus supplied with dangerous attractions, are regarded as holding out implied invitations to such children. ‘The owner of land, where children are allowed or accustomed to^ play,' particularly if it is unfenced, must use ordinary care to keep it in safe condition; for they being without judgment and likely to be drawn by childish curiosity into places of danger, are not to be classed with trespassers, idlers and mere licensees.’ [2 Shear. & Red. on Neg. (4 Ed.), sec. 705; 4 Am. & Eng. Ency. Law, p. 53, and cases in note.] In such case, the owner should reasonably anticipate the injury which has happened. [1 Thompson on Neg., p. 304.]
“There is conflict in the decisions upon this subject, some courts holding in favor of the liability of the private owner, and others ruling against it. Where the land of-a private owner is in a thickly settled city, adjacent to a public street or alley, and he has upon it, or suffers to be upon it, dangerous machinery or a dangerous pit or pond of water, or any other dangerous agency, at a point thereon near such public street or alley, of such a character as to be attractive to children of tender years incapable of exercising ordinary care, and he is aware or has notice of its attractions for children of that class, we think that he is under obligations to use reasonable care to protect them from injury when coming upon said premises, even though they may be technical trespassers. To charge him with such an obligation under such circumstances is. merely to apply the well-known maxim, Sic utere tuo ut alienum non laedas. It is true, as a general rule, that a party guilty of negligence is not liable if he does, not owe the duty which he has neglected to the person claiming damages. [Williams v. C. & A. R. R. Co., 135 Ill. 491.] But, though the private owner may owe-no duty to an adult under the facts stated, the cases,, known as the ‘turn-table’ cases, hold that such duty is due from him to a child of tender years.
“The leading one of the turn-table cases is Railroad Co. v. Stout, 17 Wall. 657; there the company was. held liable in an action by a child about six years old,, who had injured his foot while playing with a turntable belonging to a company, although it was contend-. ■ed, that he was a trespasser, and had received the injury because of his own negligence, and that the company owed him no duty; it appearing that the turn-table was located upon the private grounds of the company in a settlement of from 100 to 150 persons, about -eighty rods from the depot, near two travelled roads, .and was a dangerous machine, and was not guarded or fastened, and that a servant of the company had previously seen boys playing there and had forbidden them to do so; and it was further held, that the care .and caution required of a child is according to his maturity and capacity and is to be determined by the circumstances of each case; that the fact of the child being .a technical trespasser made no difference in his right ■of recovery; that the question of the defendant’s negligence was one for the jury to determine; and that •the jury were justified in believing, that children would ■probably resort to the turn-table, and that the defendant should have anticipated their resort to it, from the fact that several boys were at play there when the .accident occurred, and had played there on other occasions within the observation and to the knowledge of •defendant’s employees.
“To the same effect are the following cases: Keffe v. Mil. & St. Paul Railroad Co., 21 Minn. 207; K. C. Railroad Co. v. Fitzsimmons, 22 Kan. 686; Koons v. St. L. & I. M. R. R., 65 Mo. 592; U. P. Railroad Co. v. Dunden, 37 Kan. 1; Evansich v. G., C. & S. F. Railroad Co., 57 Tex. 123; Ferguson v. C. & R. Railroad, 75 Ga. 637, 77 Ga. 102; St. L., V. & T. H. Railroad Co. v. Bell, 81 Ill. 76.
“In many if not all of the foregoing ‘turn-table’ -cases, stress is laid upon the facts, that the turn-table was in a public or open and frequented place; that it •was dangerous, and left, unfastened, and, when in motion, was attractive to children by reason of their love -of motion ‘by other means than tlieir own locomotion;’ .and that the servants of the railroad companies knew, or had reason to believe, that it was attractive to children, and that children were in the habit of playing on or about it. The doctrine of the cases is, that the child cannot be regarded as a voluntary trespasser, because he is induced to come upon the turn-table by the defendant’s own conduct. ‘What an express invitation would be to an adult, the temptation of an attractive play-thing is to a child of tender years.’ [Keffe v. Mil. & St. Paul Railroad Co., supra; U. S. Y. & T. Co. v. Rourke, 10 Bradw. 474.]
“We are unable to see any substantial difference between the turn-table cases, and the case at bar. Here was a half block of ground in a populous city, bounded on two sides by public streets and on the third side by a public alley; with an opening of some forty feet in the fence upon the street on the south side, and an opening of equal dimensions in the fence upon the alley on the north side; with a causeway running from one opening to the other diagonally across the premises, inviting approach and actually used for passage by men and teams. Upon this half block was a dangerous pond or pit, in which the water was always five or six feet deep, and sometimes fourteen feet deep. Logs and timbers floated about in this pond; and boys had for some time been in the habit of playing upon them in the water. The city authorities had been notified of its attractiveness to children, and of its dangerous character. They not only suffered the pond to remain undrained, but the fences, around it to be broken down in some places and to be actually removed in others. The deceased boy, Prank McMahon, is proven, to have entered the premises at the opening in the fence on the alley. This opening was only seventeen feet from the barn of Soadv, where he dismounted from the wagon on which he had been riding. The place where he was seen playing in the water was only a few feet from this opening on the public alley. The love of motion, which attracts a child to play upon a revolving turn-table, will also attract 'him to experiment with a floating plank or log which he finds in a pond within his easy reach.
“The doctrine of the ‘turn-table’ cases is sustained by other cases where the injuries complained of were caused by agencies of a different character. Such are Mackey v. City of Vicksburg, 64 Miss. 777; Birge v. Gardiner, 19 Conn. 507; Daley v. N. & W. Railroad Co., 26 Conn. 591; Bransom v. Labrot, 81 Ky. 638; Powers v. Harlow, 53 Mich. 507; Hydraulic Works Co. v. Orr, 83 Pa. St. 332; Whirley v. Whiteman, 1 Head. (Tenn.) 610.”

The other cases cited announce the same rule of law, and no special good would be accomplished by making further quotations from them.

As previously stated, we are firmly of the opinion that the evidence was sufficient to make a case for the jury; and we are, therefore, of the opinion' that the court properly submitted the question of the city’s negligence to the jury.

II. Counsel for the city next insist that the trial court should have sustained the demurrer to the evidence for the reason that there was no evidence introduced which tended to show the deceased child was drowned in the pool of water complained of.

This insistence is wholly untenable, for the reason that it is not denied, but practically conceded by counsel, that the child was drowned; but be that true or not, the evidence is conclusive that he was in fact drowned; but notwithstanding that fact, counsel insist that the deceased may have drowned in the stream of water, above the pool and his body may have been washed into it, where it was subsequently found.

There is not a particle of evidence preserved in this record upon which to predicate such an assumption. In fact, all of the tes+’mony is to the contrary. The uncontradicted evidence was that the stream of water in the River Des Peres, in its ordinary and nsnal stage, was very small, varying’ in depth from a very few inches to fifteen inches in its deepest places,.for a distance of one thousand feet above and below the pool of water in which the body was found; and there was not a particle of evidence tending to show that the stream did not remain in its ordinary and usual stage from July 10, 1908, when the boy was last seen alive, wading in the stream about one hundred feet above the pool, until a few days thereafter when his body was found.

The presumption is that he was exercising ordinary care at the time he was drowned.

[Buesching v. St. Louis Gaslight Co., 73 Mo. 219.]

Also that he was not assassinated, for the law never presumes that a crime has been committed. This is elementary.

III. It is finally insisted that the argument of counsel before the jury was calculated to prejudice the minds of the jury against the and was for that reason erroneous.

We have examined the record touching that matter, and have failed to find any objectional language therein, or in the suggestion that the witnesses were improperly interrogated about immaterial matters for the purpose of unduly influencing the jury.

Finding no error in the record, we are of the opinion that the judgment should be affirmed; and it is so ordered.

All concur except Lamm, C. J., Graves and Brown, JJ.