author: RAGLAND, C. WILLIAMSON, J.

text:
    ANABEL WELCH v. JAMES HARVEY et al.; CYRUS FINLEY et al., Appellants.
    In Banc,
    April 1, 1920.
    1. DEED: Construction: The Whole Instrument: Granting Clause: Habendum. In construing a deed, the intention of the parties, as gathered from the entire instrument, together with the surrounding circumstances,' are to be ascertained and given effect, unless in conflict with some positive rule of law or repugnant to the terms of the grant itself; and in gathering such intention from the instrument, the court will ignore technical distinctions between the various parts and seek the grantor’s intention from them all, without undue preference to any, giving due effect to all, even to the extent of allowing the habendum, clause to qualify or control the granting clause where it is manifest that the former, in connection with the whole, more nearly expresses the grantor’s intention.
    2. - — -: -:'-: -: Parenthetical Clause. The deed made in 1867 recited that the grantors, “in consideration of the ■ regard and affection we have for our daughter Fannie E. Finley and of the payment of eight hundred dollars by William Finley,” do “hereby convey and sell to said Fannie and William two hundred and fifty acres......most eastern fifty acres is the land gold to yUUiam Finley the other two hundred aqres we five to Fannie.” Held, that the granting clause is a clear and unambiguous conveyance to Fannie and William, and is not limited by the last parenthetical words, which are of doubtful and uncertain meaning and application.

      Held, by WILLIAMSON, X, dissenting, with whom, BLAIR and GOODE, JX, concur, that if an estate by the entirety had been intended the intention would have been expressed in some other words than the mere granting clause, and that the instrument as a whole declared an express purpose of a sale of fifty acres to William and a gift of two hundred to Fannie, and that purpose is strengthened by the order in which the grantees are named, in that the granting clause says that the grantors “convey and sell to Fannie and William,” which in effect means that they convey to Fannie and sell to William.
    3. -: -: —-: -: -: No Several Tract: Husband and Wife: Change in Law. That the clear words of the granting clause were not restricted by the ambiguous subsequent clause is reinforced by two other facts: first, the deed contains no word or phrase indicating that the grantors intended to convey in severalty to their daughter and her husband distinct parcels; and, second, at the time the deed was made (1867) the notion of unity of property and person of husband and wife was firmly fixed in the popular mind and in the law, and it was not unusual for a father, when he gave real estate as an advancement to a daughter, to deed it to both.

      Held, by WILLIAMSON, J., with whom BLAIR and GOODE, JJ., concur, that a gift, by deed, to the daughter alone, had no tendency to divert the title from-the descendants of the grantors, and to construe the deed in judgment as a conveyance of an estate by the entirety to the grantors’ daughter and her husband, and the vesting of the title first in him by her death and then in his collateral kindred upon his death is to vest the title in strangers to the grantors’ blood,' which is a result in no wise contemplated by the terms used in the deed.
    4. - — -—: -: The Word Sold. The word “sold,” unaccompanied by others of apter significance, is not ordinarily a word of conveyance, but will be so considered in' a proper setting, or where clearly so intended.

      Held, by WILLIAMSON, J., with whom BLA,IR and GOODE, JX, concur, that the natural order of the words in a conveyance, and the usual sequence of events, is “sell and convey,” and not “convey and sell;” and this reversal of the order in a deed by parents to a daughter and her husband, by which they “convey and sell to Fannie and William,” is of significance, for there, the deed expressing as its consideration regard and affection for the daughter and a payment of $800 by her husband, the meaning is that they conveyed to the daughter (the two hundred acres subsequently mentioned in the deed) and sold to him (the fifty acres mentioned therein).
    Appeal from Lincoln Circuit Court. — Hon. Edgar B. Woolf olh, Judge.
    Reversed.

      Button S Huston and J. Wl Powell for appellants.
    (1) Both the statute law and the decisions conclusively establish that this conveyance created an estate by the entirety in William Finley and Fannie Finley, his wife. Gibson v. Zimmermann, 12 Mo. 386; Garner v. Jones, 52 Mo. 68; Modrell v. Riddle, 82 Mo. 31; Edmondson v. City of Moberly, 98 Mo. 523; Bains v. Bullock, 129 Mo. 117; Hume v. Hopkins, 140 Mo. 65; Wilson v. F'rost, 186 Mo. 311; Moss v._ Ardery, 260 Mo-. 595; R. S. 1909, sec. 2878; Steif el Union Brewing Co. v. Saxy, 273 Mo. 171; Ashbaugh v. Ashbaugh, 273 Mo. 3'57. (2) Counsel insist that the intention to convey separate estates is shown’ by the use of the words ■ “convey and sell” as used in the granting clause. We contend that it would be just as reasonable to contend that five separate estates were conveyed, had the-scrivener used. the words, ‘ ‘ giant, bargain and sell, convey and confirm,” as is commonly used now. Garner v. Jones, 52 Mo. 68. W]hen the entire deed is taken into consideration, it is quite evident that the grantor did not intend that this expression should in any way affect the conveyance, but that the purpose of."inserting this expression in the deed was to show his other heirs howi much of-this conveyance to William and his wife was an advancement, and for how much of the property conveyed, cash was paid. (3-) It is no unusual thing for parents to convey property to their daughter and son-in-law and inject into the deed of conveyance such statements and expressions as appear in this deed, and still intend to- convey an estate byi the entirety. Garner ■v. Jones, 52' Mo. 68. (4) Whenever a doubt arises as to whether or not a conveyance to a man and wife creates an estate by the entirety or some other interest, the courts-, whenever it- is possible, construe the deed in such a manner as to convey an estate by the entirety. Wilson v. Frost, 186 Mo. 311; Garrett v. Wiltse, 252 Mo-. 712; Ashbaugh v. Ashbaugh, 273 Mo. 358. (5) It is a vrell-established rule both at common law and under modem decisions that if two clauses of a deed are so repugnant that they cannot stand together, the first clause will be sustained and the latter rejected. Webb v. Webb, 29 Ala. 588:; Petty v. Boothe, 19 Ala. 633; Gould v. Womack, 2 Ala. 83; Tubbs v. Gatewood, 26 Ark. 128; Doe v. Porter, 3 Ark. 18; Havens v. Dale, 18 Cal. ;3i59; Daniel v. Yeal, 32 Ga. 589; Cutler v. Tufts, 3 Pick 272; Blackwell v. Blackwell, 124 N. C. 26-9; Pike v. Munroe, 36 Me. 30-9. And whatever is expressly granted cannot- be diminished by subsequent restrictions. Pike v. Munroe, 316- Me. 309. And subsequent clauses of doubtful import will not be so construed as to contradict preceding clauses. Perry v. Boothe, 19 Ala. 633. And doubtful words inserted after words of a grant will not qualify a conveyance. Ex Parte Durfee, 14 R. I. 47; Miller v. Tunica Co., 67 Miss. 651. It is also very generally- held that even the habendum clause of" a deed, though it may materially restrain, lessen, enlarge, explain, vary or qualify, may not contradict or be repugnant. to the estate granted by the granting clause* of the deed. 2 Blackstone’s Commentaries, 298; Haffner v. Irwin, 20 N. C. 433; Mowry V. Bradley, 11 R. I. 370; Donnan v. Intelligencer etc. Co., 70 Mo. 174; Halifax Cong Soe. v. Stark, 34 Yt. 243; Edwards v. Beall, 75-Ind. 401; Adams v. Dunklee, 19 Yt. 382; Welch v. Welch, 183 111. 257; Green v. Sutton, 50 Mo. 192.

      Avery é Killam for respondent.
    (1) Fannie having, preceded William in death, the 50 acres belonged to William absolutely, and there is no estate in entirety, in either the one or the other, but the collateral heirs of William are entitled to the 50 acres because of Fannie’s death before his, and the 200 acres that was given to Fannie, belonged absolutely to Fannie, and under the statute he, having' outlived Fannie, owned one-half and his collateral heirs are entitled to that one-half, and the collateral heirs'of Fannie are entitled to the remaining one-half. (2) • Mr. and Mrs. Reid owned the land. Mrs. Finley was the daughter. The mother and father wanted to convey this land to her, that is, 200 acres of it. There was a tract of 2501 acres. The son-in-law was. willing to buy the 50 acres, the most eastern, part of the 250 acre tract. lie did buy it and be paid an adequate consideration $800'. Then they wanted to give to her, Fannie, not William, 200 acres of land. The Reids conveyed the whole 250 acre tract, conveyed all of the 250 acres to Fannie and William, but they conveyed it in separate tracts; they conveyed 50 acres to William, which he bought, and they gave 200 acres to their daughter, Fannie. Buxton v. Kroeger, 219 Mo. 221. (3) It is a cardinal rule for the interpretation of contracts, that the intention of the parties shall be effectuated. Roseberry v. Benevolent Assn., 142 Mo. 552; Arnett v. Williams, 226 Mo. 109 ; St. Louis v. Railroad, 228 Mo. 712; Walsh v.. Woodmen, 148 Mo. App-. 179; Webb v. Ins. Co., 134 Mo. App. 576. The court will not give a contract such a construction as will permit one party to secure an unreasonable advantage over the other party unless compelled to do so by the language of the contract. Lead Co. v. Ins. Co., 162 Mo. App. 332.
   RAGLAND, C.

This suit was instituted in the Circuit Court of Lincoln County by the plaintiff as one of the collateral heirs of Fannie E. Finley, deceased, against the remaining heirs of said deceased and the collateral heirs of William Finley, deceased, for the partition of certain lands in said county. The defendant heirs of Fannie E. Finley filed no answer; the heirs of William Finley answered, denying that tbe plaintiff and their codefendants, heirs of Fannie E. Finley, had any right, title or interest in the lands sought to be partitioned, claiming that they as heirs of William Einley were the sole owners thereof in fee simple, and praying the court to so adjudge.

The facts are brief. William Finley and Fannie E. Finley were husband and wife on the 28th day of August, 1867, and continued so to be until the death of Fannie, which occurred about the year 1909; William died January, 1916. They left no descendants. Appellants are the collateral heirs of William, and respondent and the remaining defendants are the collateral heirs of Fannie. Fannie E. Finley was a daughter of James and Lucy Reid, who on the 28th day of August, 1867, executed the following deed?

“Know ye all persons whom a knowledge of this transaction may concern that we James Reid Sen. and 'Lucy, his wife, of the County of Lincoln and State of Missouri, do by these presents for and in consideration of the regard and affection we have for our daughter Fannie E. Finley and -of the payment of eight hundred dollars lawful money of the United States well and truly paid, by William Finley of the County of Lincoln and State of Missouri, the receipt of which is hereby acknowledged hereby convey and sell to said Fannie & William the following described' tract of land containing two hundred and fifty acres eighty-five acres described as the land we bought of the widow and heirs of James Downing deceased the remaining one hundred and sixty-five acres described as follows. Begin at a stone corner of D. H. Whitesides. Then with the northern line of said Whitesides south sixty-eight degrees west sixteen chains and twenty-five links to corner in the spring branch. Then north twenty-one and half degrees west with the northeast line of the Downing tract of land twenty-seven chains and sixty-five links to the northeast corner of said land on the line of S. Weeks. Then with said line north sixty-eight degrees east thirty-one chains and twenty-five links to corner of said Weeks. Then north twenty-one and a half degrees west one chain and eighty links to a stone comer of James Willson. Then north sixty-eight degrees east fifteen chains and thirty links and set a stone for corner from which a white oak twelve inches hears south forty-nine degrees east tWenty-nine links distant. Then south twenty-one and a half degrees east forty-seven chains and set a stone for comer from which a white oak twenty inches hears north ten and a half degrees east twenty-two links distant. Then south eighty and a half degrees west ten chains and fifty-nine links to a corner of D. H. Whitesides with a buckeye bearing tree. Then north seventy-nine degrees west twenty-three chains and sixty-eight links and set a stone from which a white oak eighteen inches bearte south eighty degrees east thirty links. Then north twenty-one and a half degrees west two chains and fifty-five links to the place of beginning containing in all two hundred and fifty acres most eastern fifty acres is the land sold to William Finley the other two hundred acres we give to Fannie.reserving to ourselves the right of way through said tract of land where said way may he least prejudicial to the same to a tract of we own and joining to and east of it all of which land is in and part of Survey eighteen hundred and thirteen or as some number it eighteen hundred and nineteen a grant of four thousand arpens to Peter Jamin situate in Township No. fifty-one and range one east and one west to the said Fannie and William with all and singular the appurtenances to the same belonging free and clear of all legal incumbrances whatsoever. In Testimony of which we hereunto set our hands and affix our seals this twenty-eighth day of August eighteen hundred and sixty-seven.

“ James Reid Se. (Seal)

‘ ‘ Ltrov Reid. (Seal). ”

It is respondent’s contention that the foregoing instrument conveyed severally to William Finley the most eastern fifty acres of the land therein described and to Fannie E. Finley the remaining two hundred acres. It is this two hundred acres that she seeks to have partitioned. If her contention is sound, it' follows that upon the death of Fannie without descendants her husband, William, under the 'statute, (became vesjted) .with the title to an undivided one-half interest in the land and the remaining one-lialf descended to her heirs, and later upon the death of William his. one-half descended to his heirs. The appellants, on the contrary, insist that the .deed to Fannie and William conveyed the whole tract-of two hundred and fifty acres to the two of them, whereby they became vested with an estate by the entirety in the whole, and that the death of Fannie left her husband, William, the sole owner in fee.

The trial court first found for appellants and rendered judgment accordingly. Later, deeming its conclusion erroneous, it sustained a motion for a new trial. This appeal is from that order. It is apparent that the proper construction of the deed is the only matter for our determination.

Whether the deed conveys the entire tract of land to both grantees, or whether it conveys to each of them severally a separate portion thereof, must be ascertained from the four comers of the instrument itself. For the rule has long obtained in this State, that, in construing a deed, the intention of the parties, as gathered from the entire instrument, together with the surrounding circumstances, shall be ascertained and given effect, unless in conflict with some positive rule- of law, or repugnant to the terms of the grant itself, and that in gathering such intention from the instrument the court will ignore technical distinctions between the various parts and seelc the grantor’s intention from them all, without undue preference to any, giving due effect to all, even to the extent of allowing the habendum clause to qualify or control the granting clause where it is manifest that the former, in connection with the whole, more nearly expresses the grantor’s intention. [Tennison v. Walker, 190 S. W. 9; Adams v. Highland Cemetery Co., 192 S. W. 944.]

Omitting the long descriptions of the land conveyed and of the right of way reserved, the deed under consideration is as follows:

“Know ye all persons whom a knowledge of this transaction may concern that we James Reid Sen. and Lucy, his wife, of the County of Lincoln and State of Missouri, do by these presents for and in consideration of the regard and affection we have for ouir daughter Fannie E. Finley and of the payment of Eight Hundred Dollars lawful money of the United States well and truly paid, by William Finley of the County of Lincoln and State of Missouri, the receipt of which is hereby acknowledged hereby convey and sell to said Fannie & William the following described tract of land containing two hundred and fifty acres . . . most eastern fifty acres is the land! sold to William Finley the other Uvo hundred acres ive give to Fannie reserving to ourselves the right of way through said tract of land. ... to the said Fannie and William with all and singular the appurtenances to the same belonging free and clear of all legal incumbrances whatsoever.

“In Testimony Whereof etc. this 28th day of August, 1867.”

If the words which we have italicized were omitted there would be no possible basis for construction, for the plain import of the language would questionably show a conveyance to both Fannie and William of the entire tract of two hundred and fifty acres, hence if there is an uncertainty as to whether the grantors intended to convey fifty acres to William and two hundred to Fannie, or whether they intended to convey the entire tract of two hundred and fifty acres to both Fannie and William, it arises solely from the use of the words, “most eastern fifty acres is the land sold to William Finley the other two hundred acres we give to Fannie,” between the description of the land granted and the exception therefrom reserved to the grantors. Necessarily the uncertainty thus created, if any, is whether the words last quoted were intended by the grantors to limit, or qualify, or explain the language of the granting clause. That clause is: “We . . . do by these presents . . hereby convey and sell to Fannie and William the. following described tract of land containing two hundred and fifty acres.” It is so clear, unambiguous and positive in its declaration that the grantors convey the entire tract to both Fannie and William that any idea of explanation is not to be considered. The only question, therefore, is whether the force of this direct and unequivocal language is in any way restrained or qualified by the language immediately following it. Having that point in mind, the first thing to suggest itself in reading the possible qualifying clause in connection with the context, is that there are no introductory or connecting words that indicate in any way that it was intended, to limit or make more specific the general language of the granting clause. For example, the grantors do not say, “We convey to Fannie and William two hundred and fifty acres, that is, to William the most eastern fifty acres which we sold to him and to Fannie the remaining two hundred acres which we gave her.” Nor are there any words of similar import used. From the standpoint of grammatical construction the recital is purely parenthetical. Notwithstanding the form of construction, however, if the words on their face carry a meaning inconsistent with the unrestrained meaning of the general terms of the granting clause, they should be given effect, if possible. But do they? The expression “most eastern fifty acres is the land sold to William” as used by the grantors, does not in the face of the positive language to the contrary afford the slightest implication that they were for that reason conveying that fifty to him alone. Nor does the remainder of the expression, “the other two hundred acres we give to Fannie” used in the same connection fuirnish a basis for an inference that they were conveying the two hundred acres to her alone. That- fifty acres had been sold to William and two hundred given to Fannie is entirely consistent with' a present conveyance of the whole to both. The word “sold” unaccompanied by words of apter significance, is not ordinarily used as an operative word of conveyance; it may be, however, and will -be so considered in a proper setting, or where clearly so intended. But to construe the verb, “is . . . sold,” where it occurs in the clause, “most eastern fifty acres is the land sold to William,” as relating back to, or as used in' the same sense as, the operative words of conveyance, “convey and sell,” in the granting clause, is a purely arbitrary construction. Neither the thought nor the structure of the context warrant it. Had the concluding part of the clause been, “is the land hereby sold,” it would plainly show by relation a conveyance of that particular land to William Finley. But the only obvious omission between the words “land” and “sold” is that o'f the words “that was.” If they were supplied, it would make'the clause grammatically complete and it would read, “most eastern fifty acres is the land that was sold to William Finley,” and we may not arbitrarily insert “hereby” or any similar word not necessarily implied by the context, for to do so would be to make a deed that the grantor did not. What is true of the first part of the recital is necessarily true of its antithetical part, “the remaining two hundred acres we give to- Fannie. ’ ’

The recital is not only parenthetical in structure, but, considered in respect to the thought it conveys in connection with that expressed by the language which precedes and follows it, it seems to be a mental “aside” as well. After stating that they convey to both Fannie and William all of the land, which they describe at length, they incidentally remark, as it were, “most eastern fifty acres is the land sold' William Finley the other two hundred acres we give to- Fannie.” The circumstances of the parties considered it is more than probable that the grantors intended by the recital to amplify their previous statement of the consideration,. They were giving their daughter a certain two hundred acres of land as an advancement, her husband had bought fifty.dcres adjoining for eight hundred dollars, and, for purposes of their own, they desired the deed to recite the entire transaction, and thereby disclose the motives that actuated them in making the conveyance. Had their thought been fully expressed it would no- doubt have been somewhat as follows: “most eastern fifty acres is the land sold to William F'inley the -remaining two hundred acres we give to Fannie” as an advancement/ and for that reason we now convey the whole to both, they being’ husband and wife. But whether this is the correct interpretation of the parenthetical clause or not, the fact remains that the granting clause is clear and unambiguous and because it is unambiguous it cannot be restrained or controlled by the language of a recital following it that is of doubtful and uncertain meaning or application. This is especially true where, as in this instrument, the granting clause is in entire harmony with and supported'by the habendum 'clause, if the last clause in this deed may be so designated.

We are further confirmed in the view that the recital is but an amplification of the consideration clause by the fact that there is not in the entire instrument, outside of the recital, a single word or phrase indicating that the grantors were intending to convey severally to the grantees distinct parcels of the land. It is difficult to conceive how the scrivenor, whether he was skilled or unskilled, could have written the remainder of the instrument and never used a word that even hinted at a several conveyance of the two."

Considered independently of the language of the deed itself, there is no presumption that the father in giving his daughter the land in controversy intended to convey it to her alone rather than to her and her husband. At the time it was made the ideas of “mine ’ and ‘£ thine’ ’ as between husband and wife were not so sharply, accentuated as at the present time. The notion of the unity of the property, as well as of the persons, of husband and wife was firmly fixed in the popular mind as it was in the law. It was not unusual for a father when he gave his married daughter personal property as an advancement to deliver it direct to her husband, and when he gave real estate, to deed it to both. In the exceptional case he conveyed it to her sole and separate use.

Por the reasons hereinbefore expressed, we deem the conclusion first reached by the learned trial court to be the correct one. Its order granting a new trial is. there-

fore, reversed and it is directed to reinstate the judgment set aside.

Brown and Small, (7(7., concur.

PER CURIAM:- — The foregoing opinion of Rag-land, 0., after reargument in Court in Banc, is adopted as the decision of the court.

All the judges concur, except Williamson, Blair and Goode, JJ., who dissent, and express their views in an opinion by Williamson, J.

WILLIAMSON, J.

(dissenting). — The conclusion reached in the majority opinion seems to me to be in violation of the intention of the grantors in the deed under consideration. This deed, in reality, is simply two deeds in one. Had it been so in fact, no suggestion of the creation of an estate by the entirety would be tenable for a moment. No intimation of the existence of the relation of husband and wife between] the grantees is contained in the deed. The consideration is plainly, stated as the “regard and affection we have for our daughter Fannie” and “eight hundred dollars” from “William Finley.” There is evidence that the fifty acres was worth about that sum. The grantors are at'pains to say that “fifty acres is the land sold to William Finley,” and “two hundred acres we give to Fannie.” This deed was the product of an unskilled hand. The writer obviously had about such knowledge as may be derived from an occasional reading of a printed form, and it is ha-rdly to be inferred that even a blank form was before him when he wrote this inartificial conveyance. Such a writer is apt to use such technical terms as he may; recall at the moment, in order to give an air of legal knowledge to the document, but he usually has little realization of the significance of the wurds he employs. To him they are mere matters of form. When he intends, however, to express the controlling thought he has in mind, he naturally drops into the vernacular of the home and the fireside. Hence the blunt declaration of a sale to William and a gift to Fannie. Had an estate by-the entirety been meant, no draftsmen, skilled or unskilled, would have been apt wholly to fail to give any clue to that intention. If skilled in the conveyancer’s art, he might have contented himself with a recital that the grantees were husband and wife; if unskilled, his meaning would probably have been set forth with the same bluntness shown when he distinguished between a gift and a sale. Even the order - in which the words “convey and sell to Fannie and William” are used is significant. Fannie is named first. To her the grantors “convey.” William is then named, and to him the grantors, “sell.” Here was no sale to the daughter nor any gift to him whose relationship' to the grantors in any degree, by blood or marriage, is recognized nowhere in the deed. The natural order of use of these words is “sell and convey.” That is the usual sequence of events. The inverted form here used, ‘ ‘ convey and sell, ’ ’ is alive with meaning’ when the order in which the grantees are named is considered. Furthermore, a gift to the daughter alone had no tendency to divert the title from the descendants of the grantors. A conveyance to the husband and wife as such (as this conveyance is held to be in the majority opinion) makes possible what has actually happened, namely, the vesting of the title in strung,ers to the grantor’s blood. Nothing in this deed seems to me to foreshadow such an intent.

Blair and Goode, JJ., concur.


source: Caselaw Access Project

author: BLAIR, J.

license: Public Domain

text:
    CALVIN W. ULRICH, Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY.
    In Banc,
    April 1, 1920.
    1. IMPEACHMENT: Place of Residence. Objections to an inquiry of witnesses for their knowledge of plaintiff’s general reputation in a given place, is not an objection to their competency to testify.
    2. -: General Reputation: In Community. Plaintiff is subject to impeachment like any other witness, and general reputation is admissible' to prove his character as it 'exists at the time of the trial, and reputation, to be competent, must be made up of what is generally said of the witness by those who have sufficient opportunity to observe his life and actions, and ordinarily they are the persons in the neighborhood or community in which he resides, but it is -not impossible for him to have a general reputation for veracity in more than one community. " ,
    3. -: --: -: Former Residence. The discretion of the trial court is not abused by the admission of testimony relating to the witness’s reputation in a community in which, beginning nine or ten years previously, he resided for several years, and in which he was widely and generally known and which he frequently revisited and there plied his vocation of selling spectacles and jewelry.
    4. -' — : -: Neighborhood and Community. The term “neighborhood” or “community” is not susceptible of exact geographical definition, but means in a general way the place where the person has established a reputation, whether that be his present or former residence or place of business. It is not necessarily confined to a particular locality, but may be co-extensive with his residence or place of business, or both, or to places of present and former residence, if he in such places came into such frequent association with persons there as to establish a reputation. In the absence of a showing to the contrary, the inquiry as to his reputation should be confined to the neighborhood of residence; ' but where there are additional facts to show the establishment of a reputation elsewhere, the court does not abuse its discretion by permitting witnesses to testify what his general reputation in such other place is or was.
    5. INSTRUCTION: Injuries at Other Times and Places. The trial court did not commit prejudicial error in instructing the jury that the mere fact that plaintiff at some time may have sustained broken ribs and other injuries was not proof that he was injured at the time and in the manner asserted by him, if there was direct testimony that he was neither on nor within several feet of defendant’s car at the time he claims to have been injured and he did not call a doctor or notify defendant for four months thereafter.
    6.-: Conflicting. An instruction authorizing the jury to find. for defendant if they believe “from all the facts and circumstances in the case” that plaintiff had not received any injury is not in conflict with another for defendant requiring plaintiff to make out his case “by the greater weight of the credible evidence in the case.” They do not set up different standards of the weight of evidence requisite to warrant a finding, but the one places the burden on plaintiff and the other presents the matter from the point of view of defendant, on whom rests no such burden.

      7. -: Expert Testimony: No Injury. Error in an instruction concerning expert testimony is not prejudicial, where th'e testimony has reference to the character, extent and permanency of plaintiff’s injury and spends its force on the issue as to the amount of damage, and the jury finds that he was not injured by defendant at all. Besides, the instruction here complained of was, in substantially the same form, approved in Hoyberg v. Henske, 153 Mo. 1. c. 75, and numerous later cases.
    8. -: To Disregard Testimony. An instruction for defendant telling the jury that they were authorized to disregard testimony, if any, opposed to obvious physical facts or in contradiction of the common knowledge and experience of mankind, was not prejudicial under the facts of this case, where both court and jury had full opportunity to observe whether plaintiff’s actual physical condition and conduct accorded with his testimony.
    9. FAIR TRIAL: No Exceptions. Where no objection was made to the admission of testimony that plaintiff’s pretended injuries were simulated, no reguest was made that defendant’s counsel be rebuked for their conduct or that the jury be discharged, and no exceptions were taken to the conduct of the trial in the manner complained of on appeal, it cannot be ruled that plaintiff was not afforded a fair and impartial trial.
    Appeal from Knox Circuit Court.- — lion. James . A. Cooley, Judge.
    Affirmed..

      L. F. Cottey said James C. Dorian for appellant.
    (1) On the trial the defendant introduced four witnesses from Putnam County, who severally testified, against the objections of counsel for plaintiff, that they were acquainted with the general reputation of plaintiff, in the eastern part of Putnam County, for honesty, truth, veracity and morality, and that it was bad. These' witnesses also testified that the plaintiff had not lived in Putnam County for about ten years, but that he had lived in Moulton, Iowa, for the past seven or eight years and that was his home. These witnesses had never lived in Moulton, and did not claim or pretend to know -or testify as to the reputation of plaintiff in Iowa. We insist that the court erred in overruling our objections to the testimony of said witnesses. State v. Shouse, 188 Mo. 478; State v. Parker, 96 Mo. 390. (2) Instructions should fairly submit the issues presented by the pleadings and the evidence. ''The jury should try the case according to the law and the evidence, and not otherwise. "While a jury is entitled to draw inferences, they must be deduced from the testimony, not from conjecture. The evidence is that plaintiff was injured while trying to board defendant’s car at Mine No. 1, as alleged in his petition. There is not a glimmer of evidence, near or remote, that plaintiff received the injuries he complains of at any other time or place. Instructions 2 and 31 given at the request of defendant are erroneous and constitute prejudicial error. Flever v. Railroad, 216 Mo. 209; Willmott v. Street Ry. Co., 106 Mo. 535; Crow v. Railroad, 212 Mo. 610 ; McElvain v. Railroad, 151 Mo. App. 148. (3) Defendant’s Instructions 4 and 5 are in conflict. Said Instruction 4 correctly stated the law, but said Instruction 5 did not. Each one authorized a verdict for the defendant. Said Instruction 4 and 5 are separate and independent declarations of law, and are directly in conflict, one of them declaring the law correctly, the other erroneously. This court cannot determine by which one the jury was guided. " The error is manifest and,prejudicial. Shepard v. Transit Co., 189 Mo. 373,; Mansur-Tebbe.tts Imp. Co. v. Ritchie, 143, Mo. 612; Mining Co. v. Fidelity & Casualty Co., 161 Mo. App. 208; Ross v. Street Ry. Co., 132 Mo. App,. 481. (4) Defendant’s Instruction 6 is erroneous and should not have been given in this case.' Said instruction, in effect, destroys the probative force of the evidence of the witnesses, Drs. Prince and Downing, who testified for the plaintiff in their professional capacity, and also operated on him. There was no objection to their competency to testify as medical experts. They were competent witnesses; and their testimony is of probative force because they were the attending physicians. 14 Ency, Ev. p. 369. A further objection to said Instruction 6 is that it does not direct the jury to consider the testimony of said expert witnesses in connection with the other evidence in the case. Rose v. Spies, 44 Mo. 23; City of Kansas v. Butterfield, 891 Mo. 648; Smith v. Tel. Co., 113 Mo. App. 443. Said Instruction 6 is based on the assumption that the jury was as well qualified to judge about the injuries plaintiff was complaining of, and their effect, as the attending physicians who examined plaintiff and operated on him to save his life. That was manifest error, because this is not a case that is withiu the knowledge and common sense of the average layman. Ewing v. G-oode, 78 Fed. 442. (5) Defendant’s Instruction 7 is erroneous under the evidence. Phippin v. Mo. Pac. Ry. Co., 196 Mo. 3431. There is no evidence in the instant case that any witnes/s testified to a state of facts in opposition to obvious physical facts or contradictory to the common knowledge or experience of men. The giving of said instruction was not only erroneous, but it was prejudicial error. (6) The court erred in not affording the plaintiff a fair and impartial trial on the issues raised by the pleadings in this cause. D. Gr. Co. v. Williams, 176 S. W. 476; Wright v. Kansas City, 187 Mo. 678i; State v. Rogers, 108 Mo. 204; State v. Gressell, 123 Mo. 535; Whart. Cr. Ev. (9 Ed.) p. 472'; State v. Parker, 96 Mo. 382.;- 1 Grreenleaf, Ev. p. 259; State v. Ilouk, 169 Mo. 654. ^

      J. O. Trimble and Campbell & Ellison for respondent.
    (1) The evidence of the witnesses that plaintiff’s reputation in Unionville and the east part of Putnam County, at which place he had lived for some forty years before he moved to Moulton, was bad, was admitted -without objection. The so-called objection is not an objection, but a mere argument. Williams v. Williams, 259 Mo. 250. Grranting the question as to whether the witness was acquainted with the plaintiffs general reputation was erroneous, and that sufficient objection was made, still such error was harmless. The question that followed the one last mentioned was, “What was that reputation, good or bad?” Nlo objection was made to that question in the trial court. St. Louis v. Railroad, 248‘Mo. 25; Semple v. Railroad, 152 Mo. App. 2'9; Rice v. Waddill, 168 Mo. 120; Stoner v. Royar, 200 Mo. 454; State v. Diemer, 255 Mo. 350. (2) Counsel now assert the evidence of plaintiff’s general reputation in Putnam County was too remote. That objection was' not made below and cannot be urged here. City of St. Louis v. Company, 248 Mo. 10. (3) The evidence was admissible no matter what objections were or could have been made. The evidence in this case reveals that plaintiff from youth to past middle life lived in the east part of Putnam County and that his conduct was such that he became a notorious character in that part of the country. After he passed middle life he moved to Moulton, Iowa, a distance of only a few miles. Thereafter, and until the time of the tidal, he passed through Putnam County frequently and visited his step-daughter and plied his trade of selling spectacles and jewelry. We concede that a man who has acquired a, bad reputation may reform, but there is, in this case, no evidence of reformation on the part of the plaintiff. The whole evidence in this case, considered, reveals the plaintiff is pursuing the sort of life that earned the reputation the witnesses gave him in the home in which he lived for more than forty years. He became so notorious that when he returned to his old home in Putnam County his very presence revived unfavorable-talk about him. Coates v. Sulau, 26 Pac. 720; Hamilton v. People, 29 Mich. 195; Stratton v. State, 45' Ind. 468; Mitchell v. Com., 78 ¿y. 219; Willard v. G-odenough, 30 Vt. 393; State v. Lanier, 79 N. C. 622. : .
   BLAIR, J.

This is an action for damages for injuries appellant alleges he sustained by reason of negli- • gence of servants of respondent in charge of one of its trains. There was a verdict against appellant. The injury is alleged to have occurred November 29, 1911. Two previous actions were instituted and dismissed before this one was begun. There was a previous trial, or mistrial, in this case.

' Appellant claims that while he was attempting to board respondent’s train at Mine No. 1 in Adair County, other cars were permitted violently to strike the car he was getting upon and that he was thrown and injured. There was evidence tending to prove injury due to the cause alleged. Respondent offered evidence tending to prove appellant was not injured at all at the time and place of in the manner alleged. There was testimony offered to impeach'appellant, and he employed the same weapon against some of respondent’s witnesses.

Appellant complains that the trial court erred in (1) admitting certain impeaching testimony; (2) instructing the jury; ■ and (3) so conducting the trial that it was unfair to appellant.

With respect to the first assignment the evidence tends to show that for many years prior to 1907 appellant had lived in the eastern part of Putnam County, Missouri; in 1907 he left Putnam County, and for a year or so had no established place of residence; he was- in various States for short periods; in 1908 he established his headquarters in Moulton, Iowa, his wife staying there, and about 1910 he went to housekeeping in that town; he traveled about'selling spectacles and jewelry; after moving out of the eastern part of Putnam County he continued frequently- to revisit it and pass through it and ply his vocation there; Moulton is but a few miles north of the eastern part of the north boundary of Putnam County; respondent offered testimony to show appellant’s reputation was bad in Moulton at the time of the trial, in 1916, and then offered testimony tending to show'his reputation in the eastern part of Putnam County where he formerly lived was bad at the time of the trial and had been at the time he left the county.

Other facts are stated in connection with the discussion of questions to which they are relevant.

I. Upon the question concerning the impeaching testimony of which he complains, appellant states in his brief that the ob jections he made on the trial were to the competency of the witnesses “to testify; and not as to what they would testify to.” This construction of his objection is relied on by appellant to'break the force of respondent’s contention that he entirely failed to object on the trial to testimony as to his reputation, the admission of which he now assigns for error. He states his position to be that the witnesses “disqualified themselves to testify as to the reputation of appellant in Putnam County when they admitted he had not lived in that county” for a number of years. The impeaching witnesses were not asked, at the time the objections were made, concerning appellant’s reputation at some past time, but the question put and objected to related to appellant’s reputation in the eastern part of Putnam County at the time of the trial. It is apparent from this that the objection raises mo question concerning' the proper exercise of the trial court’s discretion in admitting evidence of reputation at a former time, but presents, at most, a question of place of reputation. [Veitinger v. Winkler, 8 Mo. App. l. c. 562; State v. McLaughlin, 149 Mo. l. c. 31, 32.] As a witness, appellant was subject to impeachment like any other witness. Viewed as an instrument of evidence, the improbability that a witness mil tell the truth is relevant matter. This is affected by his character a's it exists at the time of the trial. His character thus becomes a proper subject of attack. Greneral reputation is admitted to prove his character. This reputation, to be competent, must be made up of what is generally said of the witness by those who are regarded by the law as having sufficient opportunity to observe his life and actions. Ordinarily, these are they “among whom he dwells, or with whom he .is chiefly conversant; . . . a man’s character is to be judged by the general tenor and current of his life and not by a mere episode in it. [Per Brace, J., in Waddingham v. Hulett, 92 Mo. l. c. 534.] Usually those who reside in the “neighborhood” or “community” in which a witness resides are assumed to have the sort of opportunity to observe him which will enable them to speak justly of his character, and thus form the reputation which will correctly evidence it. This assumption is made because it is the usual order of things. It is obvious that instances are easily conceivable in which the people of the neighborhood of the residence of a witness might have scant opportunity for contact with him; while in some other community he may spend his days and transact his business, and the people there be afforded every opportunity to form and express a just opinion. Nor is it impossible for one to have a general reputation for veracity in more than one community. Now, appellant’s objection to the competency of the witnesses raises the question, if it raises any, whether they had shown themselves qualified to speak of a reputation which was the result of what was generally said by persons in such contact with appellant that they were afforded opportunities to observe him and his course, of the kind which the law requires before it recognizes reputation, resulting from what they say, as competent.

In this case appellant had lived at Moulton for several years. Some nine or ten years before he had lived in the eastern part of Putnam County and was generally and widely known by the people there. Moulton was but a few miles from the eastern part of Putnam County. County and State lines, as such, do not materially interfere with the spread of reputation. Appellant frequently revisited his old home and continued to ply there his vocation of spectacle and jewelry selling. He was still well and generally known in that community, as he had been for a great many years. With respect to the objection as to place of reputation, the trial court had a discretion to exercise which cannot be reviewed unless it was obviously abused. We cannot hold it was abused in this case. In Houk v. Branson, 17 Ind. App. l. c. 121, the reputation of a witness was proved to be bad in Crawfordsville, where he then lived. Other evidence that his reputation in his old home- in the same county, where he lived several years before and which he frequently visited and where he continued to be known, was held admissible.

In Hauk v. State, 148 Ind. l. c. 261, testimony was offered to show that the reputation of the witness in Covington, his home at the time of the trial, was bad. Testimony was then offered to show that the reputation of the witness at Hillsboro, fifteen miles away, where the witness lived fifteen months before, was also bad. It ap^ peared that the witness was a doctor (as here) and continued to practice (as here) in the place of his former residence. The court held the testimony admissible.

“The general rule is that, in order to impeach a witness by proof of bad character, the predicate is a knowledge of his character in the community or neighborhood in which he resides; hut the term ‘community’ or ‘neighborhood’ is not susceptible of exact geographical definition, but means in a general way where the person has established a reputation. The inquiry is not necessarily confined to the domicile of the witness, but may extend to any community or society in which he has a well-known or established reputation. It is a matter of 'common knowledge that many men have their domiciles at one point and business at another, spend much of their time at the latter, and, in fact, have a better established reputation there than at the place of their actual domicile.” [Baer & Co. v. Cooperage & Box Mfg. Co., 159 Ala. l. c. 502, 503.] In this case the reputation in Mobile of a witness domiciled in Baltimore was admitted.

“A man’s ‘neighborhood’ is not necessarily con- ■ fined to the particular locality in which he resides, but is eo-extensive with the extent of territory occupied bv those with whom he associates and frequently comes in contact; one man’s ‘neighborhood’ may be a small hamlet, while the' neighborhood of another may be a county or state.” [Peters v. Bourneau, 22 Ill. App. l. c. 179, 180.]

The word “neighborhood” comprises “the territory wherein the person in question resides, moves, circulates. does business and lias intercourse with Ms fellows.” [People v. Loris, 131 App. Div. l. c. 129.]

In State v. Henderson, 29 W. Va. l. c. 167, the court upheld the admission of testimony that the reputation of • defendant was bad in his old home community, whence he had removed seventeen years before, but in which he was well known and in which he continued to transact business and visit frequently. The court said: “The manifest object of the rule is to find out the general reputation of the person sought to be impeached or sustained ; and certainly where a man is well known, he has a reputation either for honesty or dishonesty. Anyone, who is well acquainted with those with whom such a person associates, and who know him well, is competent to speak of the reputation he has among1 them. ’ ’

In Boswell v. Blackman, 12 Ga. l. c. 593, it was proposed to prove the general reputation of the witness “in Russell County. ’ ’ The Supreme Court of Georgia, said: “Disconnected with any other proven facts, I should hold that the last named question would not do ; but before putting it, the plaintiffs in error had proven, by the impeaching witnesses, that they had known the witness sought to be impeached, for the last eight or ten years, in the County of Russell, Alabama; that he was generally known, and had a general reputation in the county. These things being true, the question propounded comes within all the reasons upon which the other question is held proper. The impeachment must be by persons acquainted with the "witness. And they are called to speak of his general character for truth and veracity — not the world over, or in London, or Paris, or Columbus, but in that circle where his real character is best known, to-wit: in the neighborhood where he livés. Now, when a witness is generally known, and has a general reputation in a county, that county may be fairly considered his vicinage :■ it is fair to infer, under such circumstances, that his true character for truth is as well known in that county, as men’s character for truth is known ordinarily in their neighborhood.”

In Powers v. Presgroves, 38 Miss. l. c. 241, 242, it was said: “The rule in relation to proof of character is, that the inquiry must be made as to his general reputation, where he iis best known — what is generally said of him, by those among whom he dwells or with whom he is chiefly conversant. Ordinarily, the witness ought to come himself from the neighborhood of the person whose character is in question. But the court, unless under peculiar circumstances, will not undertake to determine, by a preliminary inquiry, whether the impeaching witness has sufficient knowledge of the fact to enable him to testify; b;ut will leave the value of his testimony to be determined by the jury. [1 Greenleaf, Ev. 601, sec. 461.] What is the plaintiff’s ‘neighborhood,’ whether one, or five, or ten miles, and the credit to be given to the witnesses, near or remote, or the character he bears in the compass of one mile, or in the county in which he lives, are all questions, under the limitations above stated, to be considered and determined by the jury, in arriving at his general character

In State v. Cushing, 14 Wash. l. c. 535, the court held it error to exclude certain impeaching testimony, saying: “If in the course of business or otherwise Newman had acquired a reputation for truth and veracity in the City of Spokane, it was competent to be given in evidence, although his place of residence may have been distant therefrom some five or six miles, as shown. ’ ’

Mr. Greenleaf, in a passage frequently approved by this court, states that a witness to reputation “must be able to state what is generally said of the person, by those among whom he dwells, or with whom he is generally conversant.”

It is apparent that any rule which would draw an arbitrary line about the spot of the residence of every witness, and by this method fix the place of origin of competent reputation, would not only violate the principle upon which reputation is admissible to prove character, but would be absurd in the extreme. With respect to such place of origin, the trial court has some discretion. In the absence of any showing to the contrary, it is doubtless proper to confine the inquiry to the neighborhood of residence. In this case there were sufficient additional facts to justify the admission of the testimony. Its weight was then for the jury, and the distance of appellant’s present place of residence was a matter to be considered by them in that connection.

The case of State v. Shouse, 188 Mo. l. c. 478, is cited by appellant. That case decides, it seems, that , when there is evidence of good reputation at the place of residence at the time of trial and no evidence of bad reputation at that time, evidence, of bad reputation in another State some seven or eight years prior to the trial is not admissible, on the ground that time for reformation had intervened, citing 1 Greenleaf, Evidence, sec. 4591, and Missouri cases. That is not this case. Here the testimony, so far as concerns the questions to which the objections were made, had to do with appellant’s reputation at the time of trial. The case more resembles State v. Miller, 156 Mo. 78, which is distinguished in State v. Shouse. In this case appellant’s objection was, as he expressly states, made to the competency of the witnesses, “as to their competency, to testify; and not as to what they would testify to.” The question concerning the remoteness in time of reputation is not in this ease.

II. The court instructed the jury, in substance, that the mere fact that appellant at some time may have sustained broken ribs and other injuries was not proof that; he was injured at the time and in the manner ke claimed. Appellant does not contend there was anything in the character of his injuries which pointed to injury by a railroad accident rather than some other. As we understand it, his objection is that the court submitted an issue not made by the evidence. He says: ‘ ‘ There is not a glimmer of evidence, near or remote, that plaintiff received the injuries he complains of at any other time or place.” There was. direct testimony of several witnesses tending to show appellant was neither on nor yet within several feet of respondent’s car at the time he claims to have been injured by its sudden movement. He first called a doctor about four months after the day on which he now says he was hurt. He notified respondent of his claim at yet a later date. Whether he was injured at the time and place he states and by respondent’s car was the dominant issue in the case. The contention he makes must be overruled.

III. It is insisted respondent’s Instructions 4 and 5 conflict and that the conflict is prejudicial. The question raised pertains to the requirements in these instructions respecting the weight of the evidence necessary to justify a finding. It is conceded Instruction 4 is correct in requiring appellant to make out his case “by the greater weight of the credible evidence in the case.” It is argued that Instruction 5, in authorizing the jury to find for respondent in case they believed “from all the facts and circumstances in the case” that appellant had not received any injury,” etc., is drawn into conflict with Instruction 4, in this, that it sets up a different and incorrect standard as to the weight of evidence requisite to warrant a finding. This objection overlooks the fact that Instruction 4 has to do with the burden upon appellant, and Instruction 5' presented the matter from the point of view of respondent, upon whom no such burden rested. Further, the omission of the phrase respecting the necessary weight of evidence, even from an instruction in which it could properly be used, is not necessarily reversible error. [Norris v. Railroad, 239 Mo. l. c. 717, 718.]

IV. The instruction concerning expert testimony was in substantially the same form as that approved by Court in Banc, in the face of the same objections made here, in Hoyberg v. Henske, 153 Mo. l. c. 75, 76. This decision was followed in Markey v. Railroad, 185 Mo. l. c. 364; Burns v. Ice & Fuel Co., 187 S. W. 148, 149, and Gold v. Jewelry Co., 165 Mo. App. l. c. 166. In addition, the expert testimony had reference to the character, extent and permanence of appellant’s injury, and spent its force on the issue as to the measure of damages. The jury found appellant was not injured by respondent at all. In view of this the instruction becomes unimportant.

Y. The court gave an instruction which, in substance, authorized the jury to disregard testimony, if any, opposed to obvious physical facts or in contradiction of the common knowledge or experience of mankind. Appellant founds his criticism of this instruction upon a recapitulation of the testimony, pro ail<^ cori; upon the question whether he was upon the car or standing some five or six feet away from it when the shock came. The instruction had no reference to this testimony. There was testimony tending to show that after the time he alleged he was injured most seriously, appellant was seen to be walking and conducting himself in a manner which his experts conceded, if true, would disprove his claim in vital respects. Further, he offered evidence that designated muscles were so completely paralyzed that he had entirely lost control of certain organs of elimination. If his testimony was true, the evidence of these things must have obtruded itself upon the jury. Both the trial court and the jury, during the four days of .the trial, had full opportunity to observe whether appellant’s actual condition and conduct accorded with his testimony in this connection. There was evidence that appellant, if suffering from the injuries and conditions he claimed, would present a described physical appearance. The jury saw him and could judge for themselves whether his appearance corroborated, or disproved his claim. In the circumstances the ’ instruction is not open to the criticism made.

VI. Appellant contends lie was not afforded a fair and impartial"trial. There was ample testimony of eye witnesses tending to show that he was not on respondent’s car at all at the time it was moved; that he was T10^ by the car and that he simulated conditions of injury- which did not in fact exist. This contention is based, in the main, upon questions put to appellant -and .offers of proof which are said to have prejudiced him with the jury. The trial court consistently ruled with appellant upon his objections, and, at his; request, excluded the jury when one question of evidence was being discussed. Its exclusion was not asked at any other time. The trial court was not requested to rebuke respondent’s counsel for the conduct of which complaint is now made, nor did appellant request that the jury be discharged, but proceeded to verdict with his case. No exceptions were taken on the ground now relied upon. In these circumstances the contention cannot be sustained.

VII. What has been said disposes of the questions presented under our rules (Simmons v. Affolter, 254 Mo. l. c. 174; Orchard v. Missouri Lumber & Mining Co., 184 S. W. l. c. 1139), and the judgment must be affirmed.

All concur except Woodson, J., who dissents.


author: GRAVES, J.

text:
    VALLEY SPRING HOG RANCH COMPANY, Appellant, v. FRED PLAGMANN et al.
    In Banc,
    April 1, 1920.
    1. GARBAGE: Ordinance: Exclusive Contract: Injunction. An- ordinance empowering the city to make an exclusive contract for the hauling and disposal of the city garbage and household refuse» compelling the collector having the contract to remore it, prescribing the dimensions of air-tight metallic vessels in which it is to he placed and the .character of vehicles by which they are to he performed, requiring the collector to give bond- for the faithfui performance of his duties and declaring that the removal by other persons (whether they he owners or agents) is violative of the ordinance, is not only an exercise of the police power, hut vests the contractor with exclusive power to collect and remove garbage in the city, and makes its removal by other parties, even if they are engaged only one hour a day in doing so, violations thereof, and subject to injunction, if the ordinance is valid.
    2. -: Statute: Public Health Regulation. Sections 20 and 45 of the Act of 1913, Haws 1913, page 420 et seq., are broad grants to cities of the second class of police power to regulate the public health, and authorize such cities to enact ordinances providing for exclusive contracts for the collection and removal of city garbage and household refuse, and prescribing the use of air-tight metallic receptacles and vehicles of a certain character for hauling them. That decomposing animal and vegetable matter is detrimental to public health is matter of common knowledge, and an ordinance providing for its prompt removal is not only authorized by the statute, but is a reasonable regulation in the interest of the public health.
    3. -: Exclusive Contract: Monopoly. An ordinance which authorizes the city to make an exclusive contract for the collection, removal and disposition of garbage and household refuse violates no constitutional safeguard of property or personal right, or any common-law inhibition against monopoly in restraint of trade. The gathering of garbage, being a matter relating to the public health, is not a trade, business or occupation in any proper sense, and the laws pertaining to monopolies or legislation prohibiting restraint of trade are not applicable to such a contract, whether it be by ordinance awarded to one or several persons.
    4. -: Property Eight in Household Refuse: Appropriation by City. The value of the owner’s- property right in garbage and household refuse removed from the kitchen is so inconsequential that it is absorbed and lost in the greater rights of the State to protect such owner and the public from the dire effects of improper methods in the handling and disposition of such deleterious substances. -For his property right therein he is compensated by sharing in the general public health benefits resulting from their removal and safe disposal. [Overruling River Rendering Company v. Behr, 77 Mo. 91.]
    5. -- — : — -: Constitutional Protection. Neither Section 20 of Article 2 of the Missouri Constitution, forbidding the taking of private property for a private use, nor Section 21 of said article, prohibiting the taking of private property for a public use without just compensation, interferes with the power of the State to exercise its police powers in the interest of public health, or makes invalid, as impairing the property right of the owner, a reasonable ordinance requiring the removal and disposition of garbage from kitchens, even though the contractor removing it receives his compensation by feeding it to his hogs. All persons own their property subject to the restriction that it cannot be used to injure the public health, and in order to preserve the public health the city may compel the owner of garbage to remove it at his own expense. Nor does Section 30 of said article, guaranteeing that no person shall be deprived of life, liberty or property without due process of law, limit the police power.
    Appeal from Barton Circuit Court. — Hon. B. G. Thurman, Judge.

      Reversed and remanded (with directions.)

      John J. Wolfe and Mercer Arnold for appellant.
    (1) Under the general charter powers of the City of Joplin, the city had express authority to pass the ordinance in question and to authorize the contract entered into with plaintiff. (2) Such a disposal of garbage is not a taking within the constitutional provision forbidding such taking, but is a proper and salutary .police regulation. Atlantic City v. Abbott, 73 N. J. L. 281; Yantine v. Petitioner, 6 Pick. (Mass.) 187; State v. Payson. 47 La. Ann. 1029; Walker v. Jameson, 140 Ind. 603, 28 L. R. A. 679; Louisville v. Wible,' 84 Ky. 290; Re Zhizhuzza, 147 Cal. 328; Dupont v. Dist. of Columbia, 20 App. D. C. 477; Statel ,v. Orr, 68 Conn. 101, 34 L. R, A. 279; Coombs v. MacDonald, 43 Neb. 632; State v. Robb, 100 Me. 180, 4 A. & E. Ann. Cas. 275; Reduction Company v. Sanitary Works, 94 Fed. 693, 126 Fed. 29; 1991 U. S,' 306; Cumberland Gro. Co. v. Baugh, Ann. Cas. 1915i A- 130; Gardner v. Michigan, 199 U. S. 325; Grand Rapids v. DeVries,' 123 Mich. 570'; Rochester v. Gutberlett, 211 N. Y. 309; Smith v. Spokane, 55 Wash. 219; Oneal v. Harrison, 96 Kan. 339. (3) Garbage in and of itself is a nuisance, and in the exercise of the police power a municipality may control the manner.of its collection and disposition, and it.is obviously for the interest of the whole public that such offensive offal should be collected by persons under the immediate control of the municipal authorities. .Board of Health v. Vink, 151 N. W. 672; State v. Robb, 100 Mie. 180, 4 A. & E Ann. Cas. 275; Gardner v, Michigan, 199 U. S. 310; Rochester v. Gutberlett, 211 N. Y. 309, 37 Ann. Cas. 483; . California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306.

      E. 8. Miller for respondents.
    (1) The ordinance in question is unconstitutional and- void and should not be enforced. River Co. v. Behr 77 Mo. 91. (2) The evidence. showed, and thei trial court so found, that the defendants were engaged in removing garbage either as agents, employees or owners of garbage. That is to say in every instance the defendants either were removing their own garbage or were employed by the owner so to do, either for a straight monetary consideration or under an arrangement for a division of the profits derived from the sale of hogs. City of Richmond v. Caruthers, 79 L. R. A. 1005; Underwood v. Green, 42 N. Y. 140'; Schoen v. Atlanta, 97.Ga. 6Í97, 33 L. R. A. 804. (3) It must be conceded that the plaintiff is not particularly interested in the sanitary condition of the City of Joplin. It is a commercial concern, organized for commercial and business purposes. The real property involved is hogs, and hogs are of substantial value. The real question at issue is whether or not the plaintiff can be authorized to invade property rights of the defendants and others, and ruthlessly deprive them of their just rights, or take away that which belongs to them, without just compensation or due process of law. The principal is wrong, is un-American and unjust. .Walker v. Jamison, 28 L. R. A. 679; Gregory v New York, 40 N. Y. 273. (4) Garbage is not a nuisance per se. We fail to see any distinction between dead'animals and garbage from the standpoint of either being a nuisance. The garbage removed by the defendants in the case at bar was not a nuisance per se when removed/but liable to become such if permitted to remain too long, and the trial court so found. Likewise it must be admitted that dead animals certainly would become a nuisance if permitted to lie in a public place, street or highway very long. A dead animal will become a nuisance much more quickly than garbage, and be a much more dangerous nuisance than garbage, and the stench arising or resulting from dead animals is'many times more offensive than that arising from garbage, and much more unsanitary, and the courts hold with one accord, that dead animals are not per se a nuisance. -Philadelphia v. Lyster, 31 Sup. Ct. 475; Kussel v. Erie, 8 Pa. Dist. 105; Culliver v. Comm. Co., 65 N. J. L. 167; Iler v. Ross, 64 Neb. 710; 97 Am. St. 676; Landberger v. Chicago; 237 111. 112. (5) There has been no violation of the ordinance on the part of the defendants^ and judgment here, dismissing plaintiff’s bill, should be affirmed. If the defendants were merely employees or agents of owners, working for hire, a straight money consideration or an agreement to share the profits, that they did not violate the ordinance. Rochester v. Gutberlett, 211 N. Y. 309.
   GRAVES, J.

Plaintiff is the successor to the original garbage contractor of the City of Joplin, a city of the second; class. The city passed'an ordinance providing for the care, removal and disposal of the garbage of the city, and further providing for making a contract-by which it could give a person the exclusive right of collecting and disposing of the garbage of the city. Pursuant to such ordinance the city entered into a contract with one A. A. Wright (exclusive in terms) by which he was made the garbage man of the city. He complied with the terms of the ordinance, gave the required bond, and entered upon the discharge of his duties. Said Wright incorporated the plaintiff, and transferred his contract rights to it. The defendants are parties who have been gathering and hauling garbage from the city, but with no contract or license so to do. The case was tried in Barton County, and the learned chancellor found the following facts and stated the following conclusions of law:

“The court finds that the garbage ordinance read in evidence was duly passed and approved; that under the authority of this ordinance the plaintiff was given the exclusive authority to gather and remove garbage in the City of Joplin, .a city of the second class, by contract duly entered into by the plaintiff with the City of Joplin, in the majrner provided by said ordinance; that plaintiff executed a bond to the city for the faithful performance of the contract, as required by the ordinance, which was accepted and approved by the city, and entered upon the performance of its duties under the contract and ordinance, and expended a large amount of money in the preparation for and in the performance of its duties under the contract and ordinance, and was and is engaged in complying with the terms and conditions of same;

“That defendants were, at the time of filing the hill, and are now, engaged in removing, garbage in violation of the ordinance, as either agents or employees or owners of garbage, by agreements to purchase or to share the profits when fed to hogs;

“That garbage so removed by defendants is of some value for the purpose of feeding hogs and chickens, and not offensive or detrimental to health at the time removed by defendants, but liable to become so, unless promptly removed.

“The law is clear that injunction is the proper remedy, and that this ordinance and contract is not a monopoly, as understood by that term; and the only question left for determination is, as to whether or not this ordinance is void as being violative of Section 20' of Article II of the Constitution of Missouri,. which prohibits the taking of private property for private use, etc.,

‘ ‘ The great weight of authority in the United States is, that such taking of private property as a sanitary precaution is not violative of such constitutional inhibition.

“It is held by numerous authorities that such ordinances, under modem conditions, are a necessary precaution to prevent the spread of disease; that it is the only way the health of the inhabitants of a city can be protected from decaying! matter and disease producing germs; that the value of property interest in such property, as garbage, is so small that the sanitary precaution more than compensates for the property loss in such eases, and so strongly do these authorities, and the reason upon which they are based, appeal to me, that this court, hesitates not to follow them; but, after much consideration I am of the opinion the doctrine of the River Rendering Co. v. Behr, 77 Mo. 91, is in conflict with the rule so stated and the modem authorities in the United States. While the decision in that case was rendered more than thirty-six years ago, when the necessity for proper sanitation was not as fully; appreciated as in recent years, this court feels bound by it; and, following that case, as construed by this court, it feels bound to find ag’ainst the plaintiff’s contention; and the bill is dismissed and judgment against the plaintiff for costs.

‘ ‘ The importance of this question to all the cities of the size of Joplin, and larger, is so important that this court begs pardon for exceeding jurisdiction to the extent of urging counsel to move the Supreme Court to advance this case, to the end that we may have an early decision in the light of present conditions and modern authorities.”

From an adverse judgment the plaintiff appealed, and this court advanced the cause upon our docket. Additional facts, if required, may well be left to the opinion.

case! °f I. We have examined the evidence with the view of determining the correctness of the chancellor’s findings of fact, as we are interested more in these than in his conclusions of law. These findings are fully justified by the evidence, so that the case is one purely of the applicatory law to such facts. The court finds (1) that the ordinance relied upon by plaintiff was duly enacted, (.2) that plaintiff was, by contract, duly made the only party authorized to remove and dispose of the city garbage, (3) that plaintiff had gone to much expense in fitting up a ho;g ranch for the disposition of the garbage obtained under their contract, (4) that such garbage was of value to plaintiff for the purpose used, (5) that defendants and each of them were removing garbage in violation of the ordinance, and to the detriment and damage of plaintiff under the contract, (0) that defendants were removing it as either agents or employees or owners of garbage, and (7) that such garbage would become offensive and detrimental to health, “unless promptly removed.”

As to these facts, and applicatory law, we have raised several questions. Of these in order.

The ordinance , II. It is urged that defendants were not engaged in the business of handling garbage, and hence were not within the terms of the ordinance. It is true that these parties were not exclusively engaged in garbage hauling. Further it is true that but a small part of their time was devoted to the handling of garbage. In their brief it is suggested that they were only so engaged for about one hour per day. This we think suffices to make their acts violative of the ordinance. By Section one of the ordinance the citizen is prohibited from throwing garbage or household refuse into the streets or alleys or other public places of the city, and am required to put all such garbage in air-tight metallic receptables. “Garbage” and “household refuse” are duly defined in this section. Then Section 21 of the ordinance reads:

“It shall be. unlawful for any person, firm or corporation to engage in, pursue or carry on the business or occupation of the collecting of garbage in the City of Joplin, Missouri, without first procuring a contract from the City of Joplin so to do, and the City of Joplin may, for the benefit of the public health, contract with a suitable person, firm or corporation, for the exclusive right to dispose of the garbage in the City of Joplin.”

Section 3 provides for the garbage contractor’s bond; Section 4, for the times of the collection of the garbage and household refuse, and the manner of handling it, and Sections 5> and 6' read thus:

“Sec. 5. Every cart or vehicle used to cart garbage and other household refuse in or about or along any street, alley; highway or thoroughfare of this city, shall be fitted with a good substantial metal box thereon, the sides and ends of which shall not be less than twenty-four inches high, so that no portion' of such garbage shall be scattered, thrown or dropped into such street, alley, highway or thoroughfare, and all other carts and vehicles used in hauling, such offensive matter shall have the box thereon closely covered with sufficient covering and so tightly ¡fitted as to prevent the escape of any of the contents of effluvia herefrom.

“Sec. 6. Every person required by Section one of this ordinance to keep and use the receptacle therein provided for, shall cause the contents to be removed therefrom as provided in Section four of this ordinance; provided that when there is a garbage collector who has a contract with the City of Joplin, then if shall be the duty of such collector to remove all garbage as provided in this ordinance. ’ ’

Section 7 provides the. penalty for violating any terms of the ordinance, and Section 8 is. .the emergency clause, in which it is alleged that an! emergency exists, because “the above ordinance being necessary for the preservation of the public health. ’ ’

It will be seen that the ordinance not only empowers • the city to malte an exclusive contract for the disposal of the city garbage and household refuse, as provided for by Section 2 thereof, but by Section 0 such garbage collector, having the city contract, is compelled to remove the garbage under terms of the ordinance. Not only so, but the character of the vehicle' upon which it is to be removed is prescribed, showing the clear intent of the city legislative body. That intent was to have a city garbage collector, with properly fitted vehicles, in order that pestilence and disease might not follow the Wake of the scavenger. Not only so, but that such collector should be under bond for the faithful performance of the work'. The ordinance, after the making of the contract, does not contemplate the removal of garbage by other parties, and if such other parties do remove it (whether they be owner or agent) they violate the ordinance. The ordinance is one in the exercise of the police power, which has for one of its purposes the protection of the public health. But of this later. For this point, suffice it to say that the ordinance is broad enough to cover the acts of the defendants, and to mate them violaters of such ordinance. Its validity is the vital question.

e a u e‘ III. The powers of a city of the second class are very broad. Vide Laws 19!3¡, p. 420 et seq. This act is the charter of cities, such as Joplin. Sections 20' and 45 of the act relating to the public health and general welfare of such cities, are broad grants of the police power, in so far as the public health is concerned. The legislative spirit has kept abreast with scientific discoveries as to the cause for the spread of disease. The paramount idea is the protection of public health, and this charter of cities of the second class fully authorizes the passage of an ordinance such as we have before us in the instant case. We take judicial notice of things, scientific or otherwise, which are generally known. In these modem days the child in the public school is taught the lessons of hygiene gathered by the scientific investigators. In this country the knowledge of the school cbild is the knowledge of the public, as well as the knowledge of the legislator or jurist. The laws of hygiene are of common knowledge. That decomposing animal and vegetable matter is detrimental to public health is common knowledge. That matter; coming from the household, or hotel kitchen, will shortly decay and effect the public health is a matter of common knowledge. That the common house fly will spread the death-dealing germs from such decomposing matter is a matter of common knowledge.

The ordinance in question seeks to protect the health of the city in that (1) it compels the citizens to use airtight metallic receptacles for garbage, (2) that it prescribes safe instruments of conveyance for such garbage from these receptacles to the place of disposal, and (3) that it places the collection of such„garbage in the hands of a bonded person, who must use vehicles of conveyance as prescribed by the ordinance.

The whole scheme is one calculated to reduce to á minimum the spread of disease, and to have a strict supervision by the municipality. The air-tight can of garbage on the kitchen porch is safe from the inroads of the pestiferous fly. The vehicle for the conveyance of the garbage through the public thoroughfares of the city is required to have a metal box thereon for receipt of such garbage, and this box must be. so constructed that neither particles of garbage, nor the “effluvia therefrom” can escape. And last, biut not least, a bonded agent of the city is required to handle and dispose of such garbage. To our mind the ordinance is but the fair exercise, of the police power lodged in cities of the class here involved. We take the contentions of defendants next.

Contract6 IY. It is first suggested that the ordinance is void because it authorizes the city to make an exclusive contract for the removal and disposition of garbage. We are cited to no Missouri case, as covering the proposition. It has, however, been passed upon elsewhere, with singular unanimity. Thus in State v. Robb, 100 Me. l. c. 188, it is said:

“The respondent says that such an ordinance as this, even if it does not offend against express constitutional safeguards of property rights, is, under general common law rules, void as creating a monopoly and as in restraint of trade. The question may be viewed in two aspects, so far as this respondent is concerned: filrst, as respecting the prohibition which the ordinance in effect is, against the collection as vendee or agent of others of house offal, and the carrying of it through the streets of the city, that is, the prohibition of the business of scavenging house offal by anyone except the appointee of the Sanitary Committee; and, secondly, the prohibition against the owner’s carrying through the streets the offal made by himself. Upon the first point by far the greater weight of authority supports the ordinance. In the Slaughter House Oases, 16 Wall. 36, it was held that the grant of an exclusive right or privilege in pursuance of the exercise of the police power of the State, in the promotion of health and comfort, was not only not forbidden by the Fourteenth Amendment to the Constitution, but was clearly within the power of a State Legislature and was not a monopoly at common law. The prohibition of the common law against monopolies extended only to such franchises and agreements as tended to restrict trade, and had no application to mere regulations in the interest of public health or morality. [20 Am. & Eng. Ency. of Law, 851, and cases cited.] ”

In the case of City of Grand Rapids v. De Vries, 123 Mich. l. c. 582, Long, J, said:

“The gathering of garbage is not a trade, business or occupation in any proper sense, and such employment does not come under the doctrine in reference to monopolies, or in reference to legislation in restraint of trade. It is a matter in which the public agencies are authorized to pursue the best means to protect the public health. The charter provisions recognize the fact that certain matter may be deleterious to public health, and dangerous to persons or property, and thus become a public nuisance; and the charter makes it the duty of the common council to declare any place, thing, or matter which may be deleterious to public health, or dangerous to persons or property, a public nuisance, and the council is given power to abate such nuisance. The ordinance treats garbage or offal as deleterious to public health, and directs the manner of its disposition for the benefit of the public health'. It is one of the police regulations of the city for the benefit of the public health.”

So too in Reduction Company v. Sanitary Works, 199 U. S. l. c. 317, it is said:

“The exclusive right granted to Sharon, his as-. sociates and assigns, was certainly a privilege, and the board of supervisors had power to grant it in order to protect the public health. But independently of the above statutes the board had power, under the Constitution of the State, to make such sanitary regulations as were not inconsistent with the general laws, and that broad power carried with it the power, by contract and ordinance, to guard the public health in all reasonable ways. The defendants criticise the ordinances because they give the exclusive privileges in question for a period of fifty years. But whether the period during which such privileges might be exercised should be long or short, was a matter in the wise discretion of the board and determinable wholly upon grounds of public policy. It may be that grants by public authority of privileges1 to be exercised for the benefit or in behalf of the public ought never to be for long periods. But it suffices to say that no such consideration can control the action of the judiciary.”

In State v. Orr, 68 Conn. l. c. 110, the court says:

“Under these provisions, and the authority of the Special Act of 1,895, the board of health might contract with a single person to collect and remove garbage from the entire city, or with several persons to collect and remove it from as many different portions of the city. It might also make such contracts with respect to part of the city, or to certain buildings in part of the city, and leave the collection and removal of garbage _ from other places open to those who obtained from its clerk a proper permit, and provided proper means of transportation. By neither method of procedure would any monopoly be created, by which the common rights of citizenship would be infringed upon. [The Slaughter-TIouse Cases, 16 Wall. 36; Alpers v. San Francisco, 32 Fed. Rep. 503; National Fertilizer Co. v. Lambert, 48 Fed. 458.] ”

Other cases might-be cited, but the foregoing, and the cases cited therein, will suffice. They all go-to the .one thought that the municipality is exercising its police power, in the interest of the public and is not establishing a business monopolistic in character. Whether the city has one or more- agents commissioned for the purpose is wholly immaterial. The municipality may provide for one bonded agent or contractor, or it may! provide for more. .It is not in either event establishing a monopoly, because dealing solely in the exercise of the police power in the interest of public health, and is not undertaking to run, establish, or license a business of any kind.

The fact that this ordinance gives the city the right to make an exclusive contract for the collection and disposal of garbage does not render the ordinance bad.

Rights*7 V. It is next urged that the. ordinance is destructive of property rights. It is true that there may be an ownership of garbage from the kitchen, but the value of the owner’s rights therein is so inconsequential that they are absorbed and lost in the greater rights of the State to' protect such owner and the public lar8’e from the dire effects of improper methods in the handling and disposition of the same. Garbage if allowed to accumulate and decompose becomes a public nuisance, and the court ”s finding in this case so shows. But a short time is required to convert the harmless table scrap into a pestilence-breeding nuisance, when it is intermingled with other refuse from the kitchen.

The answer of defendants in this case invokes Sections 20, 21 and 30 of Article 2 of the Missouri Constitution. The first relates to the taking of private property for private use. No such question is involved in this case. Here the city through its authorized agent is protecting its citizenship from a continuing public nuisance, detrimental to the public health. The city would even have the power to compel the citizen to dispose of his garbage at his own expense, in order to avoid and abate the nuisance. But all these constitutional questions are well answered in State v. Robb, 100 Me. l. c. 185, whereat it is said:

“The constitutional guaranties that no person shall be deprived of life, liberty or property, without due process of law, and that no State shall deny to any'person within its jurisdiction the equal protection of the laws were not intended to limit the subjects upon which the police power of a State may lawfully be exerted. [Minneapolis Railway Co. v. Beckwith, 129 U. S. 26; Jones v. Brim, 165 U. S. 180.] In Barbier v. Connolly, 113 U. S. 27, the court used this language: ‘But neither the amendment (XIVth) — broad ' a,s> it is — nor any other amendment, was designed tó interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people/ [See The Slaughter House Cases, 16 TVjall. 36.] Proper police regulations ‘ though they may disturb the enjoyment of individual rights, are not unconstitutional, though no provision is made for compensation for such disturbances. They do not appropriate private property for public use, but simply regulate its use and enjoyment by the owner. If he suffers injury it is either damnum absque injuria, or, in the theory, of the law, he is compensated for it by, sharing in the general benefits which the regulations are intended and calculated to secure. The citizen owns1 his property absolutely, it is true; it cannot be taken from him for any private use whatever, without his consent, nor for any public use without compensation; still he owns it subject to this restriction, namely, that it must be so used as not to injure others1, and that the sovereign authority may, by police regulations, so direct the use of it that it shall not prove pernicious to his neighbors, or the citizens generally/ [1 Dillon on Mun. Corp. sec. 141.] To the same effect are the decisions of tlxis court in Wadleigh v. Gilman, 12 Maine, 403, and Boston & Maine R. R. Co. v. County Commissioners, 79 Maine, 386, in the latter of which cases this whole question is fully discussed. [See, also, Preston v. Drew, 33 Maine, 558; State v. Gurney, 37 Maine, 156.] Injurious property may be seized and .confiscated. [Fisher v. McGirr, 1 Gray, 1; Train v. Boston Disinfecting Co., 144 Mass. 523.]

“The preservation of the health of the inhabitants is one of the most’important purposes of municipal governments, so important that in England reasonable by-laws in relation thereto have always been sustained as within the incidental authority of municipal corporations1 to ordain. [1 Dillon on Municipal Corp*. sec. 369.] And reasonable regulations for the purpose of promoting the health of the citizens are clearly within the police power of the State. Such is the law everywhere. [See-1 Dillon on Municipal Corp., secs. 144,. 369; cases cited in 22i Am. & Eng. Ency. of Law, 922; Cooley on Constitutional Limitations, 244.] It may, therefore be regarded as settled that reasonable municipal health regulations, under the authority of the ¡State, are not void as1'taking private property'without due process of law, or as a taking of private property] without just compensation.”

To like effect is Reduction Company v. Sanitary Works, 199 U. S. l. c. 323 :

“Be all this as it may, the cremation and destruction of garbage and house refuse, under the authority of the municipal authorities, proceeding upon reasonable, grounds, and at a place designated by law, as a means for the protection of the public health, cannot be properly regarded, within the meaning of the Constitution, as a taking of private property for public use, without compensation, simply because such garbage and house refuse, may have had, at the time of its destruction, some element of valúe for certain purposes. With the knowledge of the householder the scavenger receives .the garbage and refuse matter, that which, if separated, might have • Value, being.mingled with that which is, in itself, noxious and worthless. The entire mass goes into the same covered wagon,, and the authorities are not bound, before its destruction at the crematory, to cause the good to be separated . from the bad, but could require, as the ordinances in question did, that the substance be promptly conveyed to the.''designated crematory and destroyed by fire. Such a'' disposition of the contents cannot be regarded as 'aftakfrig pf private property for public use without' compensation.-'3' 1 : "

“This court has said that ‘the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not an unrestricted license to act according to one’s own will.’ [Crowley v. Christensen, 137 U. S. 86, 89.] In Mugler v. Kansas, 123 U. S. 623, 669, it appeared that certain distillery property in Kansas Was purchased, at a time when it was lawful in that State to manufacture and sell spirituous liquors, but which property, by reason of the subsequent prohibition of such manufacture and sale, had become of no value, or had materially diminished in value. The owner insisted that by the necessary operation of the prohibitory statute, his property was in whole or in part taken for public use without compensation. But this court said: ‘The power the States have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not — < and, consistently with the existence and safety of organized society, cannot be — burdened with the condition that the State must compensate such individual owners for pecuniary losses they may'sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its1 use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person- of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away' from an innocent owner.’ In Sedgwick’s Treatise on Statutory and Constitutional Law the author says that ‘the clause prohibiting the taking of private property without compensation is not intended as a limitation of those police powers which are necessary to the tranquillity of any well-ordered community, nor of that general power over private property which is necessary for the orderly exercise of all governments. It has always been held that the Legislature may make police regulations, although they may interfere with the full enjoyment of private property, and though no compensation is made. ’ [Pp. 434, 436.]

“Without further discussion, we hold, for the reasons stated, that the Circuit Court and Circuit Court of Appeals properly refused to adjudge that these ordinances were invalid.”

The Robb case, supra, reviews a long line of cases covering both of the vital questions in this case, and where that case is unofficially reported in 4 Am. & Eng. Ann. Cases, 275, will be found a case note giving further citations.

Of course every ordinance in the exercise of the police power must be reasonable, but as shown above there is nothing in this Joplin ordinance which is unreasonable. The city had the right to contract with either one or more than one person to collect and dispose of its garbage. Nor is the value of garbage such as precludes the exercise of the police power for its destruction or otherwise .disposal.

We are, however, cited to the case of The River Rendering Company v. Behr, 77 Mo. 91. This case reached this court by appeal from the St. Louis Court of Appeals, and the opinion of that court is found in 7 Mo. App. 345. Many of the courts draw a distinction between garbage (which is concededly of small value even during the time between its creation, and the time of its decay or decomposition) and dead animals, which for certain! purposes have some substantial value. In some cases it is held that a reasonable time (short time) should be given the owner to get what value there was in the carcass. We might distinguish the instant case from the Behr case, supra, on the theory of there being substantial value to the carcass, but we deem that' case out of harmony with the great weight of authority. The opinion of the Court of Appeals is more in line with modem authority on the subject.

The ever present house-fly 'and other flies will reach the carcass of dead animals as quickly as they reach the open garbage,can. G-erms of disease may be thus spread in thickly populated communities. Even the additional value of carcasses should not curb the police power in regulating their removal and disposition.

.This ease in my judgment should be overruled, to the end that we may get in line with) the great trend of modem authority.

The right of plaintiff to an injunction is not otherwise questioned in the brief of respondents. The judgment nisi should be reversed, and the cause remanded ■with directions to grant to plaintiff the injunction prayed. It is so ordered.

All concur.