author: WOODSON, J. DAVID E. BLAIR, J. DAVID E. BLAIR( J.

text:
    THE STATE ex rel. JOPLIN & PITTSBURG RAILWAY COMPANY v. PUBLIC SERVICE COMMISSION.
    In Banc,
    July 22, 1921.
    1. RAIROAD CORPORATION: Issuance of Bonds: Property Right. The provision of a railroad company’s mortgage, covering all present and subsequently acquired properties, that, upon making future extensions and improvements, it could issue other bonds equal to eighty per cent of the value thereof, upon a showing that its net earnings for twelve months had been equal to twice the interest on its existing indebtedness, is a property right, and cannot be destroyed by any unreasonable subsequent legislation in the nature of a police regulation.
    2. --- — : -: Delayed by Failure to Earn Interest: Power of Public Service Commission: Mandamus. Section 57 of the Public Service Act forbids the Public Service Commission from granting authority to a railroad corporation to issue bonds to cover expenditures that have been incurred more than “five years next prior to the filing of an application with the Commission for the required authorization.” Relator had executed a mortgage upon all its existing and after-acquired properties, which contained a provision that it could thereafter issue bonds to the extent of eighty per cent of its subsequently acquired properties, extensions and betterments, upon a showing that its net earnings for the previous twelve months were equal to twice the interest on its existing indebtedness. The extensions and betterments had been made more than five years before it applied to the Commission for authority to issue bonds to the extent of eighty per cent of their value, but the application had been delayed because the earnings had not equalled twice the annual interest charges until a short time before the application was made,, and the application was denied because it was not made within five years after the expenditures were incurred, and the company brings mandamus to compel the Commission to grant the authorization. Held, that the five-year limitation in the statute was an impairment of the company’s contract right to issue the bonds, and for that reason unconstitutional and void, unless it can be sustained on the ground that it is a reasonable police regulation, and it can be sustained on that ground only when it is shown to be in the interest, protection' and promotion of the public good; and the facts do not make it apparent that the public good will in any wise be promoted by withholding from the company authority to issue the bonds, and the Commission is commanded to approve their authorization.

      Held, by David E. Bdaik, J., dissenting, that, the statute being void, the Supreme Court has no authority, by mandamus or otherwise, to compel the Public Service Commission to approve the authorization nor could the Commission prohibit the company from issuing the bonds; the statute having been declared void in its application to the company, the Commission has no jurisdiction to further consider the subject.
    Mandamus.
    Writ granted.

      Clyde Taylor for relator.
    (1) The five-year limitation provision, if applied to the mortgage contract in question, is unconstitutional, null and void and constitutes no defense for the failure of the Commission to grant the authority in reliance thereon because (a) such provision so applied impairs the obligations of the mortgage contract, and (b) deprives the company of its property, i. e., its vested right to issue these bonds and receive the proceeds thereof, without due process of law. The mortgage is a contract and the mutual rights thereunder rest in contract. 6 Enoy. U. S. Supreme Court Reports 765, 782, 874; Fletcher v. Peck, 6 Cranch. 87, 137, 3 L. Ed. 178; G-reen v. Biddle, 8 Wheat, 1, 5 L. Ed. 547, 570; Dartmouth College v. Woodward, 4 Wheat. 518, 4 L. Ed. 629, 657; Ogden v. Saunders, 12 Wheat. 213, 316, 6 L. Ed. 606. But the so-called five-year provision of Section 57 of the Public Utility Act as applied by the Commission in this case limits, modifies and impairs such contract and the rights of the parties thereunder. (2) The constitutional inhibition is absolute and prohibits any impairment. 6 R. C. L. sees. 319 and 320, p. 329; Curran v. Arkansas, 15 How. 304, 14 L. Ed. 705; McG-ahey v. Virginia, 135 U. S. -662, 34 L. Ed. 314; Louisiana v. New'Orleans, 102 U. S. 203, 26 L. Ed. 133; Murray v. Charleston, 96 U, S. 432, 24 L. Ed. 764; Cleveland Railroad v. Pennsylvania, 15 Wall. 300, 21 L. Ed. 187; Green v. Biddle, 8 Wheat. 1, 5 L. Ed. 568; Schuster v. Weiss, 114 Mo. 174; Red Rock v. Henry, 106 U. S. 596, 27 L. Ed. 251; Public Service Com. v. Railroad, 271 Mo. 266, 270. (3) Five-year limitation as applied by the Commission cannot be sustained upon the theory that it is an exercise of the state power pursuant to its reservation of authority to alter, amend or repeal charter provisions of a corporation. Shields v. Ohio, 95 U. S. 319, 24 L. Ed. 357; Berea College v. Kentucky, 211 U. S. 66, 53 L. Ed. 90; 7 Fletcher Ency. Corp., p. 7596, sec. 4310; 7 R. C. L. sec. 94, p. 122; Brenner v. Chicago St. Rys. Co., 246 111. 170, 138 Am. St. 233. (4) The five-year limitation as applied by the Commission cannot be sustained as a Statute of Limitations. Stephens v. St. Louis Natl. Bank, 43 Mo. 385, 388; Cranor v. School District, 151 Mo. 123; Smith’s Commentaries on Const. & Satutory Const., secs. 254, 265; Tice v. Fleming, 173 Mo. 55. (5) The five-year provision as applied by the Commission to the principles of this case cannot be sustained as a valid exercise of police power. State ex rel. v. Stevens, 197 ”N. Y. 1; United States v. D. & H. Co., 213 U. S. 366; Harriman v. I. C. C., 211 U. S. 411; 6 R. C. L. sec. 266,' p. 236; State v. Smith, 233 Mo. 265; State v. Fisher, 52 Mo. 177; 17 R. C. L,, 670, 676. (6) Mandamus is proper remedy. 18 R. C. L. 105, 106; State ex rel. v. Turner, 210 Mo. 77. (7) Writ should not be denied because concurrent remedy of appeal or other method of review. State ex rel. v. Elkins; 130 Mo. 109; State ex rel. v. Spencer, 166 Mo. 271; Carter v. Bolster, 122 Mo. App. 144; State v. Aloe, 152 Mo. 466; State ex rel. v. Denton, 128 Mo. App. 314; Albridge v. Spears, 101 Mo. 406; St. Louis R. R. Co. v. St. Louis, 92 Mo. 165; State v. Equitable Co., 142 Mo. 337.

      R. Perry Spencer, General Counsel, and James D. Lindsay, Assistant Counsel,-for respondent.
    (1) The Commission was without power to grant the application. By Section 54 of the Public Service Commission Law, Sec. 10463, E. S. 1919, it was declared that the power of railroad corporations to issue bonds and to create liens upon their property situated in this State “is a special privilege, the right of supervision, regulation, restriction and control of which is and shall continue to be vested in the-State, and such power shall be exercised as provided by law and under such rules and regulations as the Commission may prescribe. ’ ’ The extent and manner of exercise of the power granted the Commission are specified in Section 57 of the Act, Sec. 10466, E. S. 1919. It is there provided that a railroad corporation or common carrier may issue bonds “payable at periods of more than twelve months after the date thereof,” for the reimbursement of moneys actually expended from income, for acquisition, extensions, improvements and the like, except for maintenance of service and’except for replacements, *“ within five years next prior to the filing of an application with the Commission for the required authorization” provided, there shall have been secured from the Commission an order authorizing such issue. (2) The fixing of the five year period is not entirely a Statute of Limitation of time, but it is also a limitation upon the power of the Commission, and this is so, even though it should be held that the limitation as to mere time in the statute cannot annul the contractual provisions of the mortgage. (3) If the contractual provisions in issue in the mortgage, applicable to the company and the bond-holders present and prospective, are of such a nature that they cannot be affected or controlled by a statute subsequently passed, Which we deny; they cannot, in any event, 'confer upon the Commission a power which was denied to the Commission by the Legislature. (4) The subjects confided to the Public Service Commission as a creature of the statute are defined by the statute creating it. Its power over those subjects is, in general, exclusive, but that power cannot be extended to other subjects than those enumerated, or exercised beyond the limits prescribed. State ex rel. United Rys. v. Pub. Serv. Comm., 270 Mo. 429. (5) Relator is not entitled to a peremptory writ of mandamus. The writ of mandamus does not run unless the relator shows a clear right to the thing demanded and an imperative duty upon the respondent to perform the act required. The writ cannot confer power nor enlarge duty to act. 19 Am. & Eng. Ency. Law (2 Ed.) 725; 18 R. C. L. Mandamus, sec. 30 ; State ex rel. Doud v. Lesueur, 136 Mo. 452; State ex rel. See v. Appling, 191 Mo. App. 589; State ex rel. Crandall v. McIntosh, 205 Mo. 589. If, as seems clear, the Legislature did not give the Commission power to approve such an issue of bonds as is here under consideration, and did not provide that relator should have a statutory right of approval from the Commission of such bonds, then re■lator’s prayer for the writ cannot be granted. - .The'act, in its relation to the rights of relator, does not give the right here asserted, and in respect to the powers given the Commission, does not confer the power here sought to be set in motion.
   WOODSON, J.

This is a proceeding by mandamus instituted in this court by the relator against the respondent to compel them to authorize the former to issue its bonds in the sum of $278,000 as authorized by its first mortgage, dated March 1, 1910, to be more fully mentioned later.

The facts of the case are undisputed, and appear from the petition for the writ, and the return thereto, which is a demurrer, to be substantially as follows:

The company has the contract right, by the terms 'of the mortgage mentioned, to issue these bonds on account of additions and extensions to and of its property-made since the date of the mortgage and to sell the same and receive the proceeds thereof. That mortgage was upon all of the property of the company then existing or thereafter acquired. By its terms, the company could not create another first lien upon property thereafter acquired and borrow money by reason thereof, having disabled itself from so doing by reason of the after-acquired property clause, by the terms of which the mortgage covered not only all property in existence at its date but also all thereafter acquired. Hence, it was provided that the company should have the right to borrow money by way of additional first mortgage bonds on a parity with those already issued to the extent of eighty per cent of the value of the property acquired by the company subsequent to the- date of the mortgage. It was further provided in this mortgage that after the expenditures were made the company should not issue bonds on account thereof unless and until the company could show that its net earnings, for twelve months preceding the issuance, were equal to twice its interest charges. The company was unable to make such showing as to’ interest, and hence unable to exercise the right to issue these bonds, until shortly before the date of its application to the Commission. In other words, the company made its application as soon as it was entitled under the terms of its mortgage to issue the bonds. The provisions of the company’s first mortgage enabling it to issue these additional bonds constituted a property right springing from the contract.

Application was duly made to the Commission for the requisite authority to issue these bonds. A hearing was regularly held and the authority denied. The Commission found and declared that: (a) the company was given the right by the mortgage to issue the bonds; (b) it had actually made the additions to property claimed; (c) had complied in all respects with the terms of the mortgage contract to be performed by it as a condition to such issuance; (d) was entitled under the law and facts to be authorized by the Commission to make such issue, and the Commission should and would authorize the-same, "save and except only for the fact that a part of the expenditures occurred more than five years prior to the application to the Commission for such authority, and that the Commission was prohibited by the provisions of Section 57 of the Act from authorizing the issuance of bonds for additions made more than five years previous to the application.

The company was not remiss in failing to apply for authority to issue these bonds within five years after the, expenditures. As stated, it could, under the mortgage, issue .additional bonds only when it could show net earnings double the interest charges. This showing it could not make previous to the date of the application. This fact is pleaded and is, of course, admitted by the demurrer.

The Commission held that it was prohibited by a provision of Section 57 of the Public Service Commission Act from granting such authority where such expenditures have occurred more than “five years next prior to the filing of an application with the Commission for the required authorization.”

Under these circumstances it is contended that in the event that such quoted provision is not applicable or for any reason is void, then the Commission, having'found that but therefor it should and would grant the authorization, the company is entitled to have th.e Commission compelled to grant the authority as a mere ministerial act.

The first contention of counsel for relator is stated in the following language:

“The five-year limitation provision, if applied to the mortgage contract in question, is unconstitutional, null and void and constitutes no defense for the failure of the Commission to grant the authority in reliance thereon because (a) such provision so' applied impairs the obligations of the mortgage contract, and (b) deprives the company of its property, i. e., its vested right to issue these bonds and receive the proceeds thereof, without due process of law.

¡ There can be no question but what the mutual rights of the parties as stated in the mortgage are protected by Section 10 of Article I of the Constitution of the United States, which provides, among other things, that ‘no State shall . . . pass any law . . . impairing the obligations of a contract. ’ The rulings of the Supreme Court of the United States are all one way upon that subject. [6 Ency. U. S. Sup. Ct. Reports, 765, 782, 874; Fletcher v. Peck, 6 Cranch. 87, 137, 3 L. Ed. 162, 178; Green v. Biddle, 8 Wheat. 1, 5 L. Ed. 547, 570; Dartmouth College v. Woodward, 4 Wheat. 518, 4 L. Ed. 629, 657, 663; Ogden v. Saunders, 12 Wheat. 213, 316, 6 L. Ed. 606.]”

There cannot be any doubt but what the five-year limitation of the Public Service Commission’s right to authorize the issue of the bonds in question is an impairment of the company’s contract right to issue the bonds in question, and for that reason is unconstitutional and void, without such limitation can be sustained upon the ground that it is a reasonable police regulation.

That the State under its police power, within reasonable limitation, has the authority to regulate or prohibit the issuance of bonds secured by mortgage upon the properties of public service corporations goes without 'saying, biit that does not mean that the State has the absolute arbitrary right or power to so do, for five years or for any other period of time, unless it appears that the exercise of such authority is in the interest, protection or promotion of the public good, defined by the State and Federal courts, but not otherwise. [State v. Smith, 233 Mo. 242, l. c. 265; State v. Fisher, 52 Mo. 174, l. c. 177; United States v. D. & H. Co., 213 U. S. 366; Harriman v. Interstate Comm., 211 U. S. 411.]

From the facts in this case it does not appear that the public good will in any way be served by withholding from the company the authority to issue the bonds mentioned, but it is inferable, at least, that the public good will be promoted and served by their issuance, because it is always beneficial to the public interest that the railroads of the country should be maintained and improvements made in' the way of betterments, which the facts in this- case show was the design, to pay for improvements made by the company.

For the reasons stated we are of the opinion that the alternative writ heretofore issued should be made permanent. It is so ordered.

All concur, David E. Blair, J., in separate opinion; James T. Blair, G. J., not sitting.

DAVID E. BLAIR, J.

(concurring). — I agree that Section 57 of ’the Public Service Commission Act is unconstitutional in so far as it affects the rights of relator to issue bonds under its mortgage issued before the passage of such act and that no considerations based upon the police power of the State make such act valid as to such mortgage.

I fear the language used in the majority opinion may be regarded as holding that said Section 57 is unconstitutional and void in fixing a five-year limitation for the approval of bonds authorized by mortgages on the property of public utilities, even though such mortgages are executed subsequent to the passage of the Public Service Commission Act. That question is not involved in this case.

For the reason stated I concur in the result.

ON MOTION POR REHEARING.

DAVID E. BLAIR( J.

The record shows my con•currence in a separate opinion in the result reached in the majority opinion in this case. When the motion for rehearing was passed on I had concluded that I was in error in concurring in the result and voted to sustain the motion for rehearing, and as no opinion was written in support of the .court’s action in overruling the motion for rehearing I feel constrained to state my reasons for favoring such rehearing.

The majority opinion holds and the order entered requires that respondent must approve bonds issued or to be issued under the terms of relator’s first mortgages to reimburse relator for certain expenditures made more than five years prior to the date of the application filed with respondent for authority to issue same.

The Legislature has not empowered respondent to approve bond issues for expenditures for such improvements completed more than five yeárs before the date of- the application. Respondent has no powers not conferred upon it by the Legislature and this court has no power by judicial action to extend or broaden those powers and should not undertake to compel respondent to perform any act it is not empowered by the Legislature to perform.

The Legislature attempted to provide a period of grace for the approval of bonds issued to reimburse railroads for money expended out of income for certain proper purposes prior to five years before the filing of the application, if such application be filed before January 1, 1914. [Sec. 10466, R. S. 1919.] Relator was prohibited by the very terms of its mortgage and the state of its earnings from taking advantage of such period of grace. Of course, the Public Service Commission Act could not thus ruthlessly cut off relator’s right to issue bonds provided for by its 'first mortgage antedating such enactment. Such legislation is violative of our Constitution as an impairment of existing contracts.

I think we should have denied the permanent writ, and held the issue of bonds sought by relator to be valid under the peculiar circumstances here existing without application to or order from respondent.

For these reasons, I desire to withdraw my separate concurring opinion, and to be noted as dissenting to the majority opinion, and also marked, as dissenting to the action of my brethren in overruling respondent’s motion for rehearing.


source: Caselaw Access Project

author: WALKER, J.-

license: Public Domain

text:
    COCOA COLA BOTTLING COMPANY et al., Appellants, v. THOMAS SPEED MOSBY, State Beverage Inspector.
    In Banc,
    July 22, 1921.
    1. CONSTITUTIONAL LAW: Deceptive Words. A legislative act US not made an inspection law by the frequent use of the word inspection; mere words do not determine its character, but that is to be ascertained from the language employed, the legislative intention indicated by such language, and the object and purpose of the act considered as a whole.
    2. -: Carbonated Waters: Grounds for Inspection. The extensive manufacture and general use of carbonated waters, commonly known as “soft drinks,” and other like preparations having no merit other than the creation of a pleasant but fleeting gustatory sensation, are the mo'ving cause of legislation providing for their inspection.
    3. -: Police Regulation: An Inherent Legislative Power. The police power is inherent in the State as a sovereignty, and needs no organic grant for its exercise by appropriate legislation. It can always be used in the interest of the general welfare to restrain one man from so using his property as to injure another.
    4. -: -: Inspection Laws: Police Regulation. Laws providing for the inspection of foods and drinks, if they relate to the purity of the article inspected and are designed to promote the public health by prohibiting the use of deleterious substances in their preparation, are the exercise of the police power. A prohibition may be placed by law upon the making and sale of any article deleterious to the user, and that may be accomplished by a reasonable inspection law.
    5. -: -: Inspection or Revenue Act: Provisions. An act providing for the inspection of carbonated waters which defines the duties of an official who is charged with its execution, provides specifically for the products to be inspected, prohibits the manufacture and sale of such products as are not pure and wholesome, requires samples of such products to be submitted for inspection, requires labels showing the nature of the beverage and that it has been inspected as to character and purity to be-placed upon all packages, prescribes a penalty for the misuse of the labels and for-*.the failure of the inspector to' perform his duties, prescribes the fees for inspection and directs that records of the inspection work shall be kept, is an inspection measure, whose purpose is to promote the public health, and, unless it can be shown that its operation is onerous and the result of its enforcement alien to the purpose of its enactment, will not be held to be a mere revenue measure, but a reasonable exercise of the police power.
    6.-- — : Title: Inspection Law. The title to an inspection law need not expressly show that it is not a revenue measure. Section 28 of Article 4 of the Constitution does not require that the title of an act shall particularize the items it contains or does not contain. It simply means that the title shall unmistakably indicate the contents of the act.
    7. --: Inspection: By Sample. Inspection of carbonated waters by sample, instead of the entire product, does not render the law invalid as a police regulation.
    8. -: -: No Penalty for Manufacture. An inspection law which affixes a penalty to the sale of an article unless it has been inspected and labeled is not invalid because it prescribes no penalty for the manufacture of impure products. It is the sale of impure products that the law strikes at, for it is by their sale that injury to the public is made effective.
    9.-: -: Excessive Fees: Revenue Measure. Inspection feeg are hot restricted to the mere expense of the inspection. It is impossible for the Legislature, in enacting an inspection law, to determine the exact expense of its execution or to nicely gauge the charge that should be required. What is a reasonable ftee depends largely upon the sound discretion of the Legislature. An inspection law will not be held to be a revenue measure merely because in the first years of its operation the fees collected amount to more than three times the expenses; especially should this be the ruling where the Legislature, after discovering such excess, made very substantial reductions in the fees to be thereafter charged.
    10. — -: -: -2 — : Presumption of Legislative Reduction. An inspection law being otherwise valid and the amount of the fees to be charged being largely within-the sound discretion of the Legislature, the presumption is that the Legislature, upon discovering that the fees authorized to be charged and collected largely exceed the probable costs of inspection, will reduce the fees, and the courts do not interfere, immediately upon application, upon a showing that the fees collected for the first two years after the enactment of the law largely exceeded the expense.
    Appeal from Cole Circuit Court. — Row. J. G. Slate, Judge.

      Affirmed.

      Phillips W. Moss for appellants.
    This act is a revenue measure, and as such violates the Constitution of Missouri as follows: (1) Section 20, Article IY, in that the fact that it is a revenue measure is not clearly stated in its title. (2) Section 3, Article X, in that the tax levied under the provision of said act is not uniform upon the same classes of subjects within the territorial limits of the'State. (3) Section 4, Article X, in that all property in the State subject to the tax imposed is not taxed in proportion to its value. (4) • Section 7,- Article X, in that Section 9 of said act exempts beverages manufactured in this State and exported outside of the State for sale. (5) Section 8, Article X, in that it undertakes to tax property at a rate excessive of the rate therein established. City of Brookfield v: T'ouhey, 146 Mo. 719; State v. Stevens, 146 Mo. 662 ;%State v. Bixman, 162 Mo. 1; State v. Bengsch, 170 Mo. 81; Welton v. State, 81 U. S. 275; State v. Spiegel, 75 Mo. 145; City v. Weitzel, 130 Mo. 600.

      Jesse W. Barrett, Attorney-General, and Merrill E. Otis, Assistant Attorney-General, for respondent.
    (1) The argument that the soft drinks inspection ■ law of 1919 is unconstitutional is based on the contention that that law is not what it purports' and declares itself to be, namely, an inspection measure, but that in reality it was intended to be and that it is a revenue measure, “masquerading under the guise of an inspection law.” It is, however, an inspection measure and, therefore, within the constitutional power of the Legislature to enact. Inspection laws are a proper exercise of the police powers of the state and the cost thereof may legally be assessed against the owners and producers of the things inspected. (2) Courts will not arrive at the conclusion that the Legislature has attempted to make the right to exact inspection fees a cover for imposing a tax for general revenue purposes until compelled to do so. G-ood faith and honesty on the part of the Legislature is presumed. Willis ~v. Standard Oil Co., 50 Minn. 290, 1. c. 297; State ex rel. v. Ross, 166 Pac. 505. (3) What is a reasonable fee for inspection must depend largely upon the sound discretion of the Legislature, having reference to all the circumstances and necessities of the case, and unless it is manifestly unreasonable in view of the purpose of the law as a police regulation, the court will not adjudge it a tax. McLean v. D. & R..G. Railroad, 203 U. S. 38; Foote & Co. v. Maryland, 232 U. S. 494; Wadhams Oil Co. v. Tracy, 141 Wis. 150, 123 N. W. 785. (4) So long as an inspection fee is not so much in excess of what appears to be reasonably required for inspection as to make it appear to be an act designed for revenue instead of regulation, it presents no judicial question. 22 Cyc. 1365,.note; State ex rel. v. Ross, 166 Pac. 505; People v. Harper, 91 111. 357; Willis v. Standard Oil Co., 50 Minn. 290, 52 N. W. 652; Territory v. D. & R. Gr. Railroad, 78 Pac. 74; Patapsco Guano Co. v. Board of Agriculture,-171 U. S. 345. (5) If the amount of money raised by an inspection system proves to be larger than is required for the purpose, it is to be presumed that the Legislature will decrease the charge. In the instant case the Legislature reduced the charge at,the first opportunity, after a tryout of the law. Patapsco Gfuano Co. v. North Carolina, 171 U. S. 345; Red C Oil Co. v. North Carolina, 222 U. S. 380. (6) Owing to the varying fluctuations of trade it is manifestly impossible for the Legislature to determine with exact nicety the amount of inspection charges required to carry its purposes into execution. Mere excess in net surplus revenues is of itself no warrant for' disturbing the law nor would even a flagrant excess in a .single year invalidate it. Castle v. Mason, 91 Ohio. St. 296. (7) The disproportion between the amount of fees collected under a statute purporting to be an inspection measure and the expenses incurred in its execution will justify a court in holding it to be invalid only when one of two conditions is met: Either the discrepancy must be so great that the court is forced to the conclusion that the Legislature in the first instance acted in bad faith, and intended to provide a revenue under the pretext of requiring an inspection, or else the Legislature must have neglected an opportunity to revise the charges exacted, after experience had shown those previously imposed to be excessive. State ex rel. v. Ross, 166 Pac. 5Q5. (8) Appellants rely upon the dissenting opinion in State v. Bixman, 162 Mo. 41. Even that dissenting opinion, however, gives no support to the contention of appellants. The facts of that case and of the instant case are wholly dissimilar, dere we have a law that in the first seventeen months of its existence has produced three times the cost of administration, whereupon the Legislature, at the first opportunity, has reduced the rate, but in the Bixman case it was shown that the beer inspection law produced annually forty-five times the cost of inspection and there was no indication of legislative intention to reduce the rate. State v. Bixman, 162 Mo. 58. (9) That an inspection law may legally exempt from inspection fees goods exported from the State has been expressly upheld in this State. State v. Bixman, 162 Mo. 39.
   WALKER, J.-

— This is a suit in equity, brought in the Circuit Court of Cole County, by certain incorporated companies engaged in the compounding and sale of what, in common parlance, are termed “soft drinks.” The purpose of the action is to restrain the State Beverage Inspector from enforcing the provisions of an act approved April 25, 1919 (Laws 1919, p. 379), providing for the inspection qf non-intoxicating carbonated beverages, and syrups, extracts and flavors used in the preparation of same, requiring a monthly report of sales and the payment of fees hy the manufacturers of those products, for inspection services and prescribing penalties for violations of the act. It is contended that the act is unconstitutional and hence void. Upon a hearing before the circuit court, there was a finding for the defendant, the injunction was denied, the petition dismissed, and an appeal perfected to this court.

Aside from the formal admission as to the corporate existence and the nature of the business of each of the plaintiffs, and the official character of the defendant, it was conceded, in an agreed statement of facts, that defendant had required plaintiffs to file monthly reports and pay fees upon their respective sales, based upon .the rates fixed by said act; that during the period from April 25,1919, to September 20, 1920, defendant had collected in fees from all sources under said act, $360,054.85, of which sum $90,318.01 was received from' bottlers of soda water, and the remainder from manufacturers of other non-intoxicating beverages and from soda foun- • tains. That the total expense of said defendant’s office during the time stated was $98,084.51. That during said time, chemical and bacteriological analyses were made in the laboratory of said defendant, of samples of the beverages compounded by plaintiffs and others engaged in a like business; and, in addition, a personal inspection was made of the places where such beverages were manufactured or sold in this State, upon an average of about once per month; that the value of the products of these plaintiffs and the price at which they are sold is from thirty-six to eighty cents per gallon; that the value of the products of other manufacturers of like products is from twenty-eight cents to one dollar per gallon.

I. The contention of the plaintiffs is that this act is a revenue, rather than an inspection measure, and consequently void, and that the word “inspection,” wherever used therein, is but a subterfuge to conceal the real purpose, and free the act from the restrictions of the Constitution which, if applied to a revenue measure, would render it inoperative. Mere words will not, of course, suffice to determine the character of a legislative act; they are but milestones measuring the distance and marking the way to the goal of true meaning in all journeys of interpretation. Despite the frequency, therefore, of the use of any particular words in an act which, if properly used, are indicative of its character, its meaning and purpose are to be determined by an application of the tests recognized by the canons of construction. Among these tests of more than minor importance and perhaps sufficient within themselves to solve'the question confronting us, may be mentioned the language employed, the intention of the Legislature as indicated by that language and the object and purpose of the act when construed as a whole. Novel preparations of both foods and drinks are constantly increasing in quantity and variety, often alluring in name, and uniformly, whether justly or not, emblazoned with the hallmark of merit by. the ingenious advertiser; their distribution soon becomes wide-spread, their reputed merits familiar and their consumption general. Illustrative of this fact are the myriad forms of so called breakfast foods, the nomenclature of which has well-nigh exhausted human fancy, and whose health giving properties, measured by the modest claims of their makers, equal, if they do not excel, ‘ the magical effect of the waters of the padre’s spring of San Joaquin, concerning the virtues of which Bret Harte charmingly invokes the aid of the Muse.

Another illustration more pertinent to the matter at issue is to be found in the carbonated waters and their concomitants now so extensively manufactured and generally used, that they no longer require the aid of print- ■ er’s ink to promote their sale. Consisting simply of water charged with carbon dioxide to which is added an acid to create effervescence and flavored oftenest to simulate a fruit or herb whose parent stem was probably the alembic of a laboratory, and making no claim to merit other than the creation of a pleasant, but fleeting gustatory sensation, the extensive manufacture and general use of preparations of this character are akin to the remarkable. An English curate after having met Lord Chesterfield, was asked whát he thought of him. He said he might be lacking in many virtues, but “he certainly left a pleasant taste in one’s mouth. ’ ’ This, at least may be said of what we familiarly call soda water and other soft drinks, which sparkling like the vintages of Champagne and Moselle, tickle the palate, but here the simile ceases. These observations, casually considered, might seem to indicate a wandering afield. But not so. The fact that these and other preparations, especially those intended for food or drink, are so extensively made and so generally used, is the moving cause of legislation of the character here under review. In short, it is but another illustration of the exercise of the police power, inherent in the State as a sovereignty, needing no organic grant for its existence and demanding legislative aid only to give it form and provide a procedure for its operation. Many attempts have been made to define this power, the most comprehensive of which perhaps is that of Judge Cooley (q. v., Cooley’s Con. Lim. (7 Ed.) p. 289).' It is not necessary to quote it here on account of its length. It will answer our purpose to say that by means of this power the Legislature exercises supervision over matters involving the public welfare and enforces the observance by each individual, of the duties he owes to others and to the community at large. The motto of this State that the will of the people is the supreme law, is one of the fundamental principles involved in the exercise of the police power. Another upon which the power to a large extent rests is the maxim that you must so use your own as to not injure the rights of others. It is said that nearly every problem involved in the exercise of the. police power finds its solution in the application of the principle embodied in this maxim. [6 E. C. L. p. 188, sec. 186; Sings v. Joliet, 237 Ill. 300, 127 Am. St. 323, 22 L. R. A. (N. S.) 1128; Karasek v. Peier, 22 Wash. 419, 50 L. R. A. 345.] That inspection laws are within the sphere of the State’s authority, in its exercise of the police power, is as clear as the power of Congress to establish regulations of commerce. [Foster v. New Orleans, 94 U. S. 245, 24 U. S. (Law Ed.) 122; Mayor of New York v. Miln, 11 Pet. 102, 9 U. S. (Law Ed.) 648; Armour & Co. v. Augusta, 134 Ga. 178, 27 L. R. A. (N. S.) 676.] This is true because inspection, especially of foods or drinks, concerns itself with the purity of the article inspected and hence is promotive of health in prohibiting the use of deleterious products. In the restrictions which’follow the enforcement of inspection laws, we discern the application of the maxim-above referred to, viz., “Sic utere tuo,” etc, in that, regardless of the manner in which yon use your own, whether it be as an individual, or as a manufacturer producing commercially an article for sale, that use must be such as to not injure the user. In other words, a prohibition may be placed by law upon the making and sale of any article deleterious to the user, as in the case of impure articles of food or drink. There remains, therefore, nothing upon which the contention can rest that laws of the nature of that under review, may not be enacted and enforced, subject, of course, to such restrictions as the Constitution has placed upon laws generally, as to reasonableness within which is included all of the objections urged by the plaintiffs against the validity of this enactment.

II. Preliminary to the consideration of these constitutional questions, let us examine the language of the act to determine therefrom its character, viz., whether it is to be classified as an inspieetion or a revenue measure. It provides for and defines the duties of an official who is charged with the execution of its provisions; it prescribes specifically the products to be inspected; it prohibits the manufacture and sale of such products if not pure and wholesome; it requires samples of sucb products to be submitted for inspection by manufacturers and requires sellers of products not manufactured in this State to file affidavits of tbe manufacturers with tbe inspector that he may determine tbe purity of tbe products; and requires tbe inspection of sucb products; it prescribes tbe fees for inspection; directs tbe keeping of records of tbe inspector’s work, of tbe fees collected by him and bow reported and accounted for. Lbbels showing tbe nature of tbe beverage and that it has been inspected as to its character and purity are required to be placed upon all packages of same — a penalty being prescribed for a violation of this duty. Beverages manufactured in this State, but to be shipped out of it and sold elsewhere are to be inspected free to tbe manufacturers. Certificates of inspection and labels are to be prepared and kept by tbe State Treasurer to be delivered and charged to tbe inspector who shall keep a record of and account for same to tbe treasurer. A penalty is prescribed for tbe misuse of certificates and labels. 'Likewise a penalty is fixed for a failure by tbe inspector to perform bis duties. Other provisions embody matters of procedure not necessary to be set forth here. From tbe foregoing epitome, tbe conclusion is inevitable that so far as tbe subject-matter is concerned, this act, if words are to be read with their usual meaning, can not be otherwise construed than as an inspection measure. Thus classified and defined, it follows as a necessary consequence that sucb was tbe intention of the Legislature in its enactment; and that tbe object and purpose of tbe acts, as we have indicated in discussing general legislation of this character, was tbe public good, in that it tends to prevent fraud in tbe making of tbe products, is promotive of their purity and hence helpful to health. As a result of this conclusion, unless it can be shown that tbe operation of tbe act is onerous and tbe result of its enforcement alien to tbe purpose of its enactment, it will stand tbe test of judicial interpretation. [Lawrence v. Monroe, 44 Kan. 607, 10 L. R. A. 520; Bradford v. Jones, 142 Ky. 820; Parker v. Griffith, 151 N. C. 600; State v. Fargo Bottling Works, 124 N. W. 387; State v. Danenberg, 151 N. C. 718; Sawyer v. Botti, 124 N. W. 787; Comm. v. Henry, 65 S. E. 570, 26 L. R. A. (N. S.) 883.]

III. To these limitations let ns give attention in the order in which they are urged by counsel for the plaintiffs.

Before considering other matters, there is one relating to the form of the act which merits attention. It is contended that the title of the act insufficiently indicates its character, or more concretely, that it should s^ow *n hctec verba that it is not a revenue meas-sure. Without more ado, let the title itself answer this objection. It declares it to be “an act providing for and relating to the inspection of all non-intoxieating and carbonated beverages and so-called soft drinks, by whatever name called, also syrups, extracts and flavors of all kinds intended for use in the preparation and concoction of soft drinks,” etc. Read even cursorily, the merest tyro cannot mistake the meaning of these words. So clearly do they define the object of the act that an attempt to explain them ends only in redundancy and possible confusion. .

The State Constitution (Sec. 28, Art. 4) is read to little purpose if it be held to require that the title of an act must present the particularity of an itemized account or the minutiae of a chemical analysis. When the Constitution provides, therefore, that “no bill . shall contain more than one subject which shall be clearly expressed in its title,” it simply means that the title shall indicate in an unmistakable manner the general contents of the act; it does not require, nor was it intended that it should descend into particulars, but that it will be sufficient if it defines the nature of the statute and thus informs the reader as to its purpose. The nature of this constitutional provision being thus understood, the tendency of the Courts in numerous rulings has been to construe it liberally in aid of all well directed legislative power. [State ex rel. v. Guinotte, 275 Mo. 298; Booth v. Scott, 205 S. W. (Mo.) 633; State ex rel. v. Roach, 258 Mo. 541; State ex rel. v. Drabelle, 258 Mo. 568; Burge v. Railroad, 244 Mo. 76; State v. Hanson, 234 Mo. 583.] There is no merit in this contention.

IV. The provision for the inspection of samples, intsead of the entire product, it is contended, constitutes a subterfuge which renders the act inutile as an exercise of the police power and consequently invalid. A like contention was made in the Bixman Case, 162 Mo. l. c. 34, in which the statute authorizing the inspection of beer was under review; in recognition of the beneficent purpose of the law and to further its object, the court construed it liberally and held that the inspector might take a sample at random from the various cases, or go directly to-the brewery and take a sample of the mash from the vats in making his tests. The reason for this ruling is apparent. It accomplishes the purpose of the act with a minimum amount of trouble and expense to the owner of the product inspected. Any other course would prove tedious, expensive and impracticable. Inspection by sample is authorized and has been satisfactorily practised for many years in this State in the regulation of the sale of grain, milk and other food products. This course has received legislative authority and judicial recognition elsewhere and we fail to find any contention that it has not proved effective, or that it is counter to any constitutional provisions. [State v. Dupaquier, 46 La. Ann. 577, 26 L. R. A. 162; Comm. v. Carter, 132. Mass. 12.]

V. The validity of the act is assailed on the ground that no penalty is prescribed for the manufacture of impure, unclean and unwholesome products. This objection is purely finical. The purpose of the law is not to regulate the manufacture, but the sale of impure products. Lacking this requisite, the validity of the act as an exercise of the police power might well he questioned. In what manner can the use of these products prove injurious, within the meaning of the maxim, “Sic utere,” etc., unless they are dispensed or disposed of to others or, in a word, sold? As a condition precedent to their sale, it is required that they be inspected and for a failure to comply with this requirement the seller subjects himself to a penalty. So far, therefore, as the effectiveness of the act, or the furtherance of its purpose is concerned, it in no wise affects its validity that it contains a provision prohibiting the use of deleterious substances in the products included, hut attaches no penalty to its violation.

VI. Passing without considering other constitutional provisions relied upon by the plaintiffs as having been violated in the enactment of this act and which cease to be centers of contention unless this be a revenue measure, we come to the question of the amount of the -*-ees ^or inspection as indicative of the character of the act. Waiving, as it were, all other grounds of attack, counsel contend that the gross amount of the fees collected for inspection is such as to fix beyond a peradventure the character of the act as a revenue measure. If the amount alone of the fees collected during the term stated, sufficed for this purpose, the contention might be conceded without further controversy. It does not, however. As we said in effect in the Bixman Case, supra: “Under no ’circumstances are inspection fees restricted to the mere expense of the act of inspection.’? It is the tendency and not improperly so, of legislature to require the subject inspected to bear the expense of same. If it happens, as is not infrequently the case, that the amount of the fees is in excess of the expense incurred in the performance of the services, this will not of itself destroy the character of the act as an inspection measure. Especially if it appears as it does here, that the Legislature, upon ascertaining the amount.of the excess, reduced the fees as applied to future inspections. By an act adopted in 1921, the fee for the inspection of soft drinks was reduced from 1-J cents to three-fifths of one cent per gallon, and on syrups, flavors, etc., from ten cents to five cents per gallon. [Laws 1919, p. 381; Laws 1921, p. 402.] It is impossible for a legislature in the enactment of a law authorizing the collection of fees in its enforcement, to determine the exact expense of its operation and nicely gauge the measure of the charge which should be required. The courts 'cognizant of this difficulty hold that what is a reasonable fee must depend largely upon the sound discretion of the Legislature. If the fee fixed proves excessive, this will not of itself render the law invalid, as it will be presumed that the Legislature upon ascertaining the fact of the excess will remedy the defect.

A recent ruling of a court of last resort upon this subject will be found in State ex rel. Brewster v. Ross, 166 Pac. (Kan.) 505, in which it is shown that during the first two years of the operation of the statute, there under review, the fees collected for inspection were nearly four times the expenses incurred. The Supreme Court of. Kansas, in the discussion and determination of this question, said: “The mere fact that the fees charged under such a statute exceed the expense of its execution is not enough to render.it invalid. For instance, the difference between an income of from $70,-000 to $75,000, and an outlay of from $55,000 to $60',000, has been said by this court not to afford a sufficient basis for avoiding such a statute. [State ex rel. v. Railway Co., 87 Kan. 348, 365, 125 Pac. 98.] To have that effect one of two conditions must be met: Either the discrepancy must be so great that the court is forced to the conclusion that the Legislature in the first instance acted in bad faith and intended to produce a revenue under the pretext of requiring an inspection, or else the lawmaking body must have neglected an opportunity to revise the charges exacted after experience had demonstrated beyond controversy that as previously imposed they were unreasonably and unnecessarily high. These principles are too well established to require extended discussion, but a brief reference will be made to the decisions on the subject. In a case involving the validity of a state law imposing a charge of twenty-five cents per ton upon fertilizers to cover the cost of inspection, interstate commerce being incidentally affected, it was said by the United States Supreme Court: ‘Entertaining these views of the legislative intention, it does not appear to us that evidence tending to show that money collected from this source was applied to other than the purposes for which it was received should be entered into on this inquiry into the validity of the act. If the receipts are found to average largely more than enough to pay the expenses, the presumption would be that the Legislature would moderate the charge. But, treating the question whether the charge of twenty-five cents per ton was shown to be so excessive as to demonstrate a purpose other than that which the law declared, as a judicial question, we are satisfied that comparing the receipts from this charge with the necessary expenses, such as' the cost of analyses, the salaries of inspectors, the cost of tags, express charges, miscellaneous expenses of the department in this connection, and so on, we cannot conclude that the charge is so seriously in excess of what is necessary for the objects designed to be effected, as to justify the inputation of bad faith and change the character of the act.’ [Patapsco Guano Co. v. Bd. of Agriculture, 171 U. S. 345, l. c. 354, 18 Sup. Ct. 862, 865, 43 L. Ed. 191.]”

Expressions of other courts of last resort are to the same general effect, as follows: “The law being otherwise valid, the amount of the inspection fee is not a judicial question; it rests with the Legislature to fix the amount, and it can only present a valid objection when it is shown that it is so unreasonable and disproportionate to the services rendered as to attack the good faith of the law.” [McLean v. Denver & Rio Grande R. R. Co., 203 U. S. l. c. 55, 27 Sup. Ct. l. c. 5, 51 L. Ed. 78.]

“If the trial made of the act establishes the facts to be as asserted, that the exaction in question is excessive, the presumption is that, in the orderly conduct of the public business of the State, the necessary correction will be made to cause the act to conform to the authority possessed, which is to impose a fee solely to recompense the State for the expenses properly incurred in enforcing the authorized inspection. ’ ’ [Oil Co. v. Bd. of Agriculture, 222 U. S. 380, 32 Sup. Ct. 152, 56 L. Ed. 240.]

“Inspection necessarily involves expense and the power to fix the fee, to cover that expense, is left primarily to the Legislature which must exercise discretion in determining the amount to be charged, since it is impossible to tell exactly how much will be realized under the future operations of any law. Besides, receipts and disbursements may so vary from time to time that the surplus of one year may be needed to supply the deficiency of another. If, therefore, the fee exceed cost by a sum not unreasonable, no question can arise as to the validity of the tax so far as the amount of the charge is concerned. And even if it appears that the sum collected is beyond what is needed for inspection expenses, the courts do not interfere, immediately on application, because of the presumption that the Legislature will reduce the fees to a proper sum.” [Foote & Co. v. Stanley, 232 U. S. 949, 34 Sup. Ct. 377, 57 L. Ed. 698.]

“It is not necessary that the Legislature determine with exact nicety the amount of the inspection charges required to carry its purpose into execution. This is manifestly impossible owing to the varying fluctuations of trade. Mere excess in net surplus revenues is of itself no warrant in disturbing the law, nor would we feel disposed to hold that a flagrant excess in a single year over the expenses would invalidate it. What we do hold is, that under the facts disclosed here, where it appears that the fees are not only excessive, bnt are being continued, yielding each and every year increasing net revenues, the natural operative effect of the inspection act thus shown is in direct violation of Article 1, Section 10, of the United States Constitution, and consequently void.” [Castle v. Mason, 91 Ohio St. 296, 110 N. E. 463, Ann. Cas. 1917A, 164.]

As we have shown, the objections urged to the law as considered by the Supreme Court of Ohio, in the Castle-Mason case,-are met by the amendment in 1921 of the act here under review.

If the Legislature of this State had not enacted the amendment of 1921, supra, and in all other respects the act had possessed, as we have shown it does, the form and features of an inspection measure, this would not authorize a holding as to its invalidity, because of the presumption that the Legislature will reduce -the fees upon acquiring a knowledge of their excess, to a sum more nearly necessary to the expenses of inspection. [State v. Standard Oil Co., 161 N. W. (Neb.) 537, L. R. A. 1917D, 746; State v. Bartles Oil Co., 132 Minn. 138, L. R. A. 1916D, 193; Lee Co. v. Webster, 190 Fed. 353.]

While we have examined the other objections urged by counsel for plaintiffs, we have not deemed it necessary to formally discuss them in view of our expressed conclusion as to the validity of the act.

The judgment of the trial court is, therefore, affirmed.

All concur.


author:
GRAVES, J.
     WALKER, J.

text:
    THE STATE ex rel. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    In Banc,
    July 22, 1921.
    1. CERTIORARI: To Court of Appeals: Evidentiary Facts. In certiorari to a court of appeals based on conflict with prior decisions, the Supreme Court takes the evidentiary facts stated in the opinion of the Court of Appeals as the facts of the case. Where it is stated in said opinion that “there was evidence tending to show that the speed of the train was not slackened until after deceased was struck” the Supreme Court will assume that said statement is true, although an examination of the testimony might weaken the conclusions of law reached by that court.
    2. NEGLIGENCE: Crossing Railroad: Danger Zone: Humanitarian Rule: The railroad ran east and west, and for about a half mile west of the statipn the double tracks were straight; north of them was the station house or waiting room, and south of them was a platform where passengers boarded east-bound trains; deceased, two other ladies and two children were in the station awaiting the arrival of a local train, due to stop at 9:45 a. m., but ■ late; at about ten o’clock a through-passenger train, not scheduled to stop at the station and running several hours late and at the rate of forty-five miles per hour, approached from the west, and hearing its whistle these five persons, supposing it'to.be the local train, left the station and started across the tracks for the platform, and two of the women and the two - children got across, but deceased, who was just behind the others, was struck just as she stepped off the south rail of the south track; a second or two more and she would have reached a place of safety. When the train was 1320 feet west of the station, the engineer saw this group of five persons leave the station and start across the tracks, and» realizing they were attempting to cross he gave the brakes a “service application,” which is the ordinary method of stopping a train as distinguished from an “emergency application,” which slows up and stops it more quickly and which, if it had been given, would have stopped the train within the 1320 feet. The acts of the parties indicated to the engineer that they knew the train was approaching, which carried with it knowledge of the fact that it was approaching very rapidly. Held, that the engineer had a right to assume that deceased would stop before entering upon the south track, and the five persons were not passengers from the time they left the station, but, as to this non-stopping through train, the danger zone began, not at the doors of the station, but, practically, with the south track;' and, the Court of Appeals, in ruling that the five persons were passengers from the moment they left the station for the purpose of boarding what they supposed was the local train and that it was the duty of the engineer from that moment to do everything he reasonably could have done to stop or slacken the speed so as to prevent the accident, contravened Boyd v. Railway Company, 105 Mo. -371, and later cases, and its opinion is therefore quashed. The deceased was guilty of contributory negligence, and there was nothing in the facts which brings it within the range of the humanitarian rule.

      Held, by Walker, J., dissenting, that the facts of the case of Boyd v. Railway Company, 105 Mo. 371, are different from those in the instant case, and that the ruling of the Court of Appeals does not contravene the decision in that case, and hence the writ of certiorari herein should be quashed.

      Certiorari.

    Writ quashed.

      W. F. Evans, E. T. Miller, and A. P. Steivart for relator.
    (1) The ruling of the Court of Appeals that, although deceased, who was sui juris, knew the train was approaching, yet, since the engineer testified that when his train was a quarter of a mile distant he saw a group of persons leaving the depot and knew they intended to cross the track, they were from that moment in the danger zone, and it was his duty at that time to stop or slow up his train so as to prevent the accident, and that as there was evidence tending to show that he failed in this duty, the humanitarian doctrine applied, contravenes the ruling of this Court in the following-cases: Kinlen v. Ry., 216 Mo. 145, 164; Pope v. Railroad, 242 Mo. 232, 239; Reeves v. Railroad, 251 Mo. 169, 177; Keele v. Riy., 258 Mo. 67, 78; Guthrie v. Railroad, 204 S. W. 185; Moore v. Ry., 176 Mo. 528, 544; Eppstein v. Ry., 197 Mo. 720, 733, par. (a); Boyd v. Ry., 105 Mo. 371, 379; Moody v. Railroad, 68 Mo. 470, 473; Laun v. Railroad, 216 Mo. 563, 580; Holland y. Ry., 210 Mo. 338, 351. (2) The ruling of the Court of Appeals that, since the engineer admitted that he knew the group of persons were going to cross the traek from the time they left the depot building, and when the train was a quarter of a mile distant, he was not entitled to presume that persons who were sui juris, as was deceased, and who knew that the train was approaching, would not step from a place of safety into one of peril, or that deceased would stop and permit the train to pass, but that he was required at that time to make every effort to stop or slacken the speed of’ the train so as to prevent the collision, contravenes the rulings of this court in the following cases: 'Keele v. Ry., 258 Mo. 62, 79; Markowitz v. Ry., 186 Mo. 350, 358; Moore v. Ry., 176 Mo. 528, 546; Cúyer v. Ry., 174 Mo. 344, 350; Yan Bach v. Ry., 171 Mo. 338, 347; Boyd v. Ry., 105 Mo. 371, 380; Tanner v. Ry., 161 Mo. 497, 512; Reardon v. Ry., 114 Mo. 384, 405; Pope v. Railroad, 242 Mo. 232, 240. (3) The petition and plaintiff’s main instruction being directly referred to in the opinion of the Court of Appeals, they become a part of the opinion for purposes of this review, and may be examined by this court. State ex rel. v. Ellison, 220 S. W. 498; State ex rel. v. Ellison, 176 S. W. 11. (4) The ruling of the Court of Appeals approving the main instruction given at the instance of plaintiff, which submitted the case on the theory of the humanitarian doctrine, but omitted to require'a finding that deceased was oblivious to the impending danger as a predicate to a 'verdict for plaintiff, and holding it not to be -reversible error to omit the element of obliviousness from said instruction, is contrary to the rulings of this court in the following cases: Kinlen v. Railroad, 216 Mo. 145, 164; Pope v. Railroad, 242 Mo. 232, 239.

      Perry Post Taylor, Emil Mayer and Ben L. Shifrin for respondents.
    (1) We contend that to hold that the plaintiff made no ease under the humanitarian rule would contravene controlling decisions of this court in the following cases: Maginnis v. Ry., 268 Mo.'667, 671, 678; Ellis v. Ry., 234 Mo. 657, 673, 680; Holmes v. Ry., 207 Mo. 149, 163; Holden v. Ry., 177 Mo. 456, 468; Tavis v. Bush, 217 S. W. 274. (2) There was good reason for the Court of Appeals to affirm the judgment of the circuit court; hence, such action should be upheld here. State ex rel. v. Reynolds, 270 Mo. 589, 601.
   GRAVES, J.

Certiorari to the St. Louis Court of Appeals. Our writ was invoked in a case decided by that court, entitled Charles JST. Martin v. St. Louis San Francisco Railway Company, wherein a judgment of $5,000 obtained by plaintiff in the circuit court was affirmed by the Court of Appeals. The action was one by the husband for the alleged negligent killing of his wife. All charges of negligence were abandoned except the negligence covered by the humanitarian rule. In other words the case in the trial court was submitted solely on the humanitarian rule. Relator urges many conflicts between our opinions and the opinion of the Court of Appeals, the particulars of which will be noted in the course of the opinion.

The evidentiary facts are thus outlined in the opinion of the Court of Appeals.

“At about 10 a. m.’ on August 6, 1917, plaintiff’s wife was struck and killed by one of defendant’s eastbound through-passenger trains at Shrewsbury Station, St. Louis County. Hence arose this action for damages under the Compensatory Death Act (Sec. 5425, R. S. 1909). All allegations of primary negligence were abandoned by plaintiff, and the case was put to the jury under the humanitarian doctrine, resulting in a verdict and judgment for plaintiff for $5,000. Defendant appeals.

“Defendant’s double track runs east and west at tbe point, and for about one-balf mile west of tbe station tbe track is straight and then curves to the south. Westbound trains use the north track and east-bound trains the south track. North of both tracks is the station house, and south of the tracks is a platform where passengers board east-bound trains.

“On the morning in question, a local suburban accommodation train was due to stop at Shewsbury Station at 9:46 a. m. This train was late. About ten o’clock a through-passenger train, not scheduled to stop at this station' and running several hours late and at the rate of forty-five miles per hour, rounded the curve one-half mile to the west of the station and proceeded eastward on the south or east-bound track on a down grade of about sixty feet to the mile. At this time the deceased, Mrs. Martin, two other ladies, and two children were in the station on the north side awaiting the local train. Hearing a train whistle to the west, they proceeded out of the station and across the track for the purpose of getting upon the platform on the south side so as to take what they supposed was the local accommodation train that was approaching and which would stop at the station.

“The inference is plain from the evidence that this group of passengers, including the deceased, knew the train was coming down the grade, but supposed that it was the local train and it would slow up and stop at the station. In that event there was ample time to cross the track in safety. As it turned out, the train was a through train running very fast and not scheduled to stop. The result was that the two ladies and the children barely crossed the track in time, and Mrs. Martin, who was just behind the others, was struck and killed just as she stepped off the south rail of the east-bound track. One second more, or two at the most, and she would have reached a place of safety;

“The testimony of the- engineer, who was called by the plaintiff, shows that this train of nine coaches was running on about the time of- the local train which was passed by his train at Valley Park, twelve miles to the west; that as he approached the station traveling forty-five miles per hour and when about one-quarter of a mile (1320 feet) west of the station, he saw this group of passengers leave the-depot and start across the tracks, and that he knew they were going to cross in front of his train. While the engineer says that he did not see the deceased until just before his engine struck her, he did see the group of passengers crossing the tracks, and other evidence is to the effect that Mrs. Martin was among the group. Realizing at that moment that these women and children were going to cross in front of his engine, the engineer testified he gave his brakes what is termed a ‘service application,’ which is the-, ordinary method of stopping the train as distinguished from an ‘emergency application,’ which slows up and stops the train quicker than the ‘service application,’ and which is used in cases of emergency. He says he took this action in order ‘to give the group of passengers time to get across.’

“While the engineer testifies he applied the brakes as stated and lessened the speed of the train from a point one-quarter of a mile from the station, there was evidence tending to show that the speed of the train was not slackened until after the deceased was struck. There was further evidence tending to show that had the engineer given the brakes an emergency application instead of a service application, the train could have stopped within the 1320 feet under the condition that existed. In any event, by'such emergency application the speed of the train could have been so slackened that the deceased would have had time to have escaped from the on-coming locomotive. While the engineer says that having once given the brakes the service application he could not thereafter, for mechanical reasons, apply the emergency brakes, this is disputed by another experienced engineer who testified for plaintiff.”

Counsel for relator, after setting* out the foregoing-portion of the Court of Appeals’ opinion and directing our attention thereto, then thus proceed to outline their conclusions of the rulings of the court:

“On this statement of facts, the Court of Appeals held:

“(1) That when the engineer saw the group of people leaving the station for the purpose of going to the south side of the track to take what they1'supposed was the local accomodation train which he knew was following his train, and when he knew that they were going to cross the track, they were from that moment in the danger zone, and the duty then devolved upon the engineer to do everything he could reasonably do to either stop or slow up the train so as to prevent the accident, and that, as there was evidence tending to show that he failed in this duty, the case was properly submitted to the jury under the last-chance rule; and,

“(2) That, since the engineer admitted that he knew the group of people were going to cross the track from the time they left the depot building, he was not entitled to presume that persons who were sui juris would not step from a place of safety into one of peril.

“The Court of Appeals further approved the main instruction given by the trial court at the instance of plaintiff, which instruction submitted the case to the jury on the theory of the humanitarian doctrine, but omitted to require the jury to find, as a predicate to returning a verdict for plaintiff, that deceased was oblivious to the impending danger. The petition contained no allegation that deceased was oblivious to the impending danger. The Court of Appeals held that it was unnecessary that the petition should contain an allegation that deceased was oblivious to the impending' danger, or that the element of obliviousness should be incorporated in the instruction, because .of the evidence of the engineer, who admitted that he knew the group of persons, of which deceased was one, were going to cross the track in front of his engine.”

These holdings, they say, conflict with divers opinions of this court. This sufficiently outlines the case.

I. Relator is correct in urging that the Court of Appeals ruled that the deceased was in the danger zone' from the time she left the depot on the north side of . the two tracks, and started to the south.- On this question, the court said:

“When the engineer saw this group of passengers leaving the station for the purpose of going to the south side of the track to take what they supposed was the local accommodation train, which he knew was following his train; and when he knew, as he admits, that they were going to cross the tracks, they were from that moment in the danger zone, the duty then devolved upon him to do everything that he could reasonably do to either stop or slow up his train so as to prevent the accident. As there was evidence tending to show that he failed in this duty, we think the case was properly submitted to the jury under the last-chance rule. ’ ’

It should be noted that the court further says that “there was evidence tending to show that the speed of the train was not slackened until after the deceased was struck.” Prom whence this evidence comes C01ir^ ¿oes not enlighten us in the opinion. Under our rule we take the evidentiary facts in the opinion for the facts in the case, and we shall follow that rule in this case. Curiosity, however, prompted us to read the record in the Court of Appeals, and it there appears that the woman just ahead of the deceased looked up at the approaching train twice, and saw that it was coming very fast and was not slackening its speed. She was the leading witness for plaintiff. -By other persons who were on the south side of the track awaiting this local train, it was shown that the speed of the train was not slackened, and that by the time the train covered half of the clear distance between the curve and the depot, they discovered that it was not the local by the very facts that it was running so fast and was not slackening its speed. What other waiting passengers saw, deceased might have seen. Of course these details, helpful as they might be, we cannot, and will not consider. We shall take the evidentiary facts just as they are in the opinion, although it might weaken the ruling of our learned brothers, if the actual facts, stated above, appeared. They did rule that the danger zone for the deceased began at the depot, and extended clear across the tracks. In other words they ruled that it was the duty of this engineer to begin the process of protecting deceased, as if in a perilous position, and oblivious thereof, from the time .she emerged from the depot. Deceased was sui juris and possessed of all her faculties. Is this ruling in conflict with our rulings? Of that question next.

II. The Court of Appeals says: ‘ ‘ The inference is plain from the evidence that the group of passengers, including the deceased, knew the train was . coming down grade. ’ ’ From the real record the word “inference” would apply to deceased rather than the others. This because her mouth was closed at the trial. The others testified, and we have indicated supra the character of their testimony. One went so far as to say that she discovered it was not the local train (by its speed) before she crossed. And she was. just ahead of deceased. These facts we eliminate, however, and take the court’s statement that “the inference is plain” that they knew of the approaching train. We also take the court’s statement that the engineer knew that the' purpose of these three ladies and two children was to cross those tracks. With both statements taken for the facts, we yet have those parties knowingly leaving a place of safety, and putting themselves in a place of peril. Concede that they thought it to be the local train, yet they were crossing railway tracks, one of which would be occupied by the engine of that train. They were crossing from the depot directly across to a platform opposite, as we gather the facts from the opinion. The engine of even the local train would have to cross their pathway, before its train would be in position to receive passengers. The deceased was, under all the facts, head-bound for a place on the railway tracks, which she knew would sooner or later be occupied by the moving engine of the train, whether it be the local train or some other train. Her duty was to see just where the moving engine was, and the rate of its speed, before she attempted to cross the track. This because, as the Court of Appeals finds, she knew the train was coming. She with knowledge of the fact of the approaching train was not oblivious of her danger. Now as to the situation of the engineer on the train. He saw these parties, and the track being clear and straight, he had the right to assume that they saw his train and the speed of the train. Their antions indicated to him that their'purpose was to cross the track, but their actions also indicated that they knew (as the Court of Appeals finds) of the approaching train, and its speed. He knew that the local was behind him, and he had the right to assume that they, if waiting passengers, knew the local train had not arrived on'time. In other words, that such train was off of schedule time. But the mere fact that these parties were going to cross the tracks would not necessarily indicate that they were intending passengers. The engineer had the right to assume (knowing from their acts that they saw his train, and hence the speed thereof) that these parties would look and stop before entering upon the track, the real danger zone. The mere fact that he might have believed, or even knew,,that their purpose was to cross the tracks, and that too, before the arrival of his train, did not deprive the engineer of the right to assume that they would stop their progress before real danger was reached. This, because to him their actions disclosed their knowledge of his approaching train, which knowledge carried with it knowledge of the fact that the engine was approaching very fast. The Court of Appeals says that the engineer would have no right to assume that these parties, with knowledge of an approaching train, the engine of which must cross their pathway, whether such train be the local or some other train, would cease their progress across the tracks, before placing themselves in actual danger by going upon a railroad track immediately in front of a rapidly moving engine. Once yon concede that the parties had knowledge of the approaching train, and that there were acts to indicate to the engineer that-they had such knowledge, then there is no danger zone until the track is practically reached. This for the reason that the engineer can assume that approaching parties (knowing that the train was coming) would stop before going on the track, rather than hurl themselves upon the track directly in front of- the rapidly moving train. This assumption, the Court of Appeals ruled, was not proper, and that the danger zone began at the depot. In this they contravene our cases.

The ruling clearly conflicts with Boyd v. Railway Co., 105 Mo. 371, and the many cases which have followed that case. The facts of the Boyd Case are in many ways similar to the case at bar. The Court of Appeals make an attempt to distinguish it from their case, but it cannot be successfully done. Judge Brace has succinctly stated the facts of Boyd’s Case, at page 378, thus:

“The evidence for the plaintiff disclosed the following facts: Charles Boyd, the husband of plaintiff, was a hotel keeper in the town of Renick in Randolph County. ■His hotel was situated about one hundred feet north of the depot. The defendant’s tracks are between the hotel and the depot. A plank walk leads from the hotel across the tracks to the platform of the depot, and was used as a public crossing. In the prosecution of his business, he was in the habit of going to the depot upon the incoming of all passenger trains stopping at that station. One of defendant’s regular passenger trains, the mail from Kansas City to St. Louis, was due from the west at Renick daily at 12:30 p. m., and usually passed over the crossing from the hotel at a speed of three or four miles an hour, stopping at the platform just east of the crossing.

“On the twenty-sixth of September, 1887, an excursion train approached Renick from the west on the time of the Kansas City and St. Louis mail, and running as its first section; it signaled its approach by whistling at the usual place. The train from the time it whistled until it passed the depot, at which it did not stop, was running at about fdrty or. forty-five miles an hour; as the train approached the depot its bell was rung, and kept ringing, but its speed was not checked. When Mr. Boyd heard the train whistling he was in the house; he immediately came out and started for the depot-on the plank walk in a run or ‘trot’ and without breaking his gait entered upon the track immediately in front of the engine and was struck just as he-was about to make his last step over the track, and instantly killed. Mr. Boyd was a small, active man, quick in his movements, about fifty-two years of age, and in the enjoyment of all his senses. The train was in plain view, and its sound in his hearing from the moment he started from his hotel, on the plank walk, until he entered upon the track. That he both heard the train and saw it, .in a general way, there is no question; but he did not stop a moment in his course to observe its movement, to ascertain whether it was the regular train he was expecting, and which would stop at the depot, and whose speed as it slowed up for that purpose he could accurately gauge from his long and frequent experience, or, as it proved to be, a special going at a high rate of speed and showing no evidence of an intention to stop; dominated perhaps by the first impression received in the house when he heard the whistle, that this was the regular mail, he hastened towards the depot and onto the track without stopping for a moment to test by sense of sight or sound the correctness of his first impression, and as the result of his heedlessness lost his life. This is one view of the case presented by plaintiff’s evidence, as through it we look back at the unfortunate accident after it happened; another may be taken of it, that observant of his surroundings he may have miscalculated his own speed and that of the train, and hazarded the chance of getting across the track in safety before the engine could strike him. In either view his death was the result of his own negligence.

“The evidence for plaintiff further showed that the deceased in going from his hotel to the track was in plain view of the defendant’s servants on the locomotive, and there was evidence tending to prove (upon the hypothesis that the train was going at the rate of forty miles an hour) that, if the engineer had commenced checking his train at three hundred feet from the point of collision, the speed of the train could have been so diminished that it would have reached that point two seconds later than it did, and deceased would have escaped without injury.”

There is every material fact in that case, that there is in the case under consideration. It is true that Boyd was not an intending passenger, but his purpose to get to the depot where his expected train would stop is the same. In Boyd’s case, the deceased.was running to get over the track to the depot; the engineer saw him or could have seen him in time to have so checked his train as to have avoided injury; Boyd was in view, from the time he left this hotel, and his acts showed that he intended to reach the depot across the tracks, just as the acts of these parties showed that they intended to reach the platform across the tracks; Boyd knew there was a train coming, but thought it to be a train which was then due to stop there, as did these parties think; Boyd was killed by an extra train running forty to forty-five miles per hour, which was not to stop, as was deceased killed in the case before the Court of Appeals. The facts are so near indentical, and so very similar, that the same principles of law must be applied to each.

The Boyd Case ruled that the danger zone was the railroad track, and further ruled that, although the' engineer saw Boyd running toward the depot, the engineer had the, right to assume that he would check his progress before going upon the railroad track. We also then ruled that the plaintiff's evidence did not make a case for the jury upon the humanitarian rule, or any other rule, and reversed the judgment for plaintiff, which was rendered under her instruction covering the humanitarian rule. The doctrine of Boyd’s case has been consistently followed by this court (as the Missouri Citator will show), but we shall not stop to compare the other cases with the facts of the present case. The curious may examine Kinlen v. Railroad, 216 Mo. l. c. 158; Holland v. Railroad, 210 Mo. l. c. 351; Sites v. Knott, 197 Mo. l. c. 712-713; Mockowik v. Railroad, 196 Mo l. c. 570; Boring v. Street Railway Co., 194 Mo. l. c. 549. [See, also, Laun v. Railroad, 215 Mo. 563; Pope v. Railroad, 242 Mo. l. c. 239-40; Reeves v. Railroad, 251 Mo. l. c. 177-8; Keele v. Railroad, 258 Mo. l. c. 78-79; Guthrie v. Railroad, 204 S. W. 185.] Boyd’s Case is so similar in facts, that without departing from the rules announced in it we cannot sustain the judgment and opinion of our learned brothers of the Court of Appeals.

III. There are two or three other alleged conflicts between the opinion of our learned brothers and our opinion, but we are so thoroughly satisfied that their opinion conflicts with Boyd’s Case, and all of the cases following it,' that we shall not go further. A discussion of these alleged conflicts would serve no good purpose in view of what we have just ruled. We might add, and properly so, that under our ruling in Boyd’s Case, the opinion of the Court of Appeals is wrong and conflicting in holding that, under the facts shown, the plaintiff was entitled to have his case go to the jury. We reversed Boyd’s Case because wrong-. fully submitted to the jury on facts fully as strong for the plaintiff there as are the facts for the plaintiff here. So the opinion conflicts wherein it says that defendant’s demurrer to the evidence was properly overruled by the trial court. Under these views review of other alleged conflicts can serve no purpose, because the Court of Appeals, following our views in this opinion, will have to reverse absolutely the judgment nisi.

The judgment and opinion of the St. Louis Court of Appeals, for the reason stated, is quashed.

All concur, except Walker J., who dissents in opinion filed; J. T. Blair, C. J., concurs in result.

WALKER, J.

(dissenting). — The facts in the Boyd Case, as I read them, are different from those in Martin v. Railroad. In my opinion, the ruling of the Court of Appeals in that case does not contravene the opinion in the Boyd Case, and hence our.writ should be quashed; which conclusion results in my dissenting from the majority opinion.