author: REVELLE, J.

text:
    STATE ex rel. ED. T. MILES and CITY OF MACON v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    December 4, 1916.
    1. COTJBTS OF APPEALS: Jurisdiction: Failure to Follow Last Prior Decision. The courts of appeals are courts of last resort, and when acting within their jurisdiction and not in violation of the decisions of the Supreme Court, can decide cases as their judgment dictates, and in so doing can commit error and decide incorrectly.
    2. -: -: -: Certiorari. If the Court of Appeals, in deciding a case of which- it had jurisdiction, did not run afoul of the last previous decision of the Supreme Court, its error, if any, cannot be reached by writ of certiorari, and the preliminary writ issued out of the Supreme Court must be quashed.
    3. -: Election Contest: Office of Notice and Demurrer. The notice of a contest of a local option election fills the office of a petition, and a demurrer thereto admits the facts set up in the notice, and such demurrer being sustained and there being no further pleading such facts are on appeal taken as the facts of the case.

      4. -: Local Option Election: Disregard of Australian Ballot Law: Certiorari. A holding of the Kansas City Court of Appeals, in a contested election case over which it had jurisdiction, that a local option election at which the Australian Ballot Law was entirely disregarded and its general spirit wilfully violated — at which there were no booths provided and no effort to preserve the secrecy of the ballot, and many persons were allowed to be in the polling places and to mark and furnish the voters ballots already pre- . pared — was an illegal election, and not a mere irregularity or failure to follow some of the directory details of the law’s many provisions, is not contrary to any prior decision of the Supreme Court, and • its decision holding the election invalid will not be disturbed by certiorari.

    5. -: -: Dismissing Contest. A decision of the Court of Appeals, holding that the contestant will not be permitted to dismiss an election contest, after said court has held the election void for that it was held in total disregard of the Australian Ballot Law, and that the contestant acts for the public as well as himself and to permit him to dismiss after it is too late, under the statute, for another contest to be instituted, is not in conflict with any prior decision of the Supreme Court, and the preliminary rule in certiorari, by which it is sought to quash such decision, is itself quashed.

      Certiorari.

    Writ ■ quashed.

      Guthrie & Franklin, C. G. Buster, B. 8. Matthews, Otho F. Matthews, W. B. Hagan and Andrew Field for relators.
    (1) The Kansas City Court of Appeals has jurisdiction to decide cases appealable to it according to the “last previous ruling of the Supreme Court on any question of law or. equity.” Within that limitation the Court of Appeals has jurisdiction. Beyond that it has no jurisdiction. Constitution 1875, Amendment of 1884, see. 6; State ex rel. v. Robertson, 264 Mo. 678. (2) The Supreme Court shall have superintending control over courts of appeals' by mandamus, prohibition and certiorari. Constitution 1875, Amendment of 1884, sec. 8. (3) General allegations of law or conclusions, whether relating to fraud or other matter, are of no force and effect and not demurrable or traversable and make the pleading in which they occur bad. Break Beam Co. v. Bakewell, 224 Mo. 214; Chemical Works v. ÍSTemnich, 169 Mo. 397. (4) Election statutes are made to preserve and not to destroy the rights of the voter and so long as failure to observe the statutory regulations do not destroy his right, they will not defeat the validity of the election. Where the voters5 wills are expressed at the election, violation of the provisions intended to protect him shall not destroy the election. In other words, “the Sabbath was made for man, not man for the Sabbath.” So, the statute was made to secure fair elections and not to defeat them. (5) Notice of contest in an election case must be judged by the rules pertaining to the sufficiency of a petition and hence must state a cause of action to give the court jurisdiction. Hale v. Stinson, 198 Mo. 145; State ex rel. v. Hough, 193 Mo. 615; Costello v. Circuit Court, 28 Mo. 264. (6) Contestant’s notice must set forth the particular facts relied upon as invalidating the election. State v. Spencer, 166 Mo. 271. General averments of the notice are mere conclusions of law. Bowers v. Smith, 111 Mo. 60; 15 Cyc. 405; People v. Glenn County, 100 Cal. 419. Fraud must be particularly pleaded in apt words with every fact and intent constituting it. Loomis v. Jackson, 6 W. Ya. 613. There is no averment in the contest notice that any particular voter lost his vote or changed by reason of the alleged conditions. (7) The Australian Ballot Law, article 5 of the Election Law, section 5889 to 5932, has innumerable rules, and the failure to comply with those rules does not void the election where the contestee is not guilty of actual fraud. State v. Roberts, 153 Mo. 125; Hope v. Flentge, 140 Mo. 413; Sanders v. Lacks, 142 Mo. 255; Bowers v. Smith, 111 Mo. 58; Hall v. Schoenecke, 128 Mo. 668 ; State ex rel. v. Smith, 129 Mo. App. 56. (8) The election laws should be liberally construed with reference to upholding the election. Nance v. Kearbey, 251 Mo. 383; Hale v. Stimson, 198 Mo. 146; State ex rel. v. Hough, 193 Mo. 615. (9) The provisions of the statutes gov-er-ning the conduct of elections are per se mandatory only where the Legislature has declared that a departure from the prescribed methods shall avoid the election. Hope v. Flentge, 140 Mo. 390; Langford v. Gebhart, 130 Mo. 628; Gaston v. Lamkin, 115 Mo. 24; Bowers v. Smith, 111 Mo. 61; State ex rel. v. Frazier, 98 Mo. 429; Ledbetter v. Hall, 62 Mo. 423. (10) Booths are merely one of the many requirements of the election laws. The failure of an officer to do his duty and supply the same does not vitiate the election. There must be more than a failure to have booths and that must be pleaded and stated and show a fraudulent result. Skelton v. Ulen, 217 Mo. 393. The fact of the judge entering the booth, which is forbidden in the same section, did not vitiate the matter, as it was without fraud. Hope v. Flentge, 140 Mo. 413. So other apparently vital matters. Sanders v. Lacks, 142 Mo. 255; Bowers v. Smith, 111 Mo. 60. (11) The right to vote is constitutional and the statute is made only for the purpose of preserving that right and making it secure, and where violations of these regulations do not in fact deprive the voter of his constitutional right they cannot avoid the election, and thus destroy his constitutional right.

      Charles P. Hess and Whitecotton & Wight for respondents.
    (1) One of the eases that relators seem to rely on in support of their contention is the case of Skelton v. Ulen, 217 Mo. 393. We insist that this case does not sustain relators’ contention that the absence of booths will not avoid an election. The contention in this case is that there was a total disregard of the state election laws in the holding of the local option election and this being so the election was void, there being no election. This view is supported by the holding of this court in case of Gaston v. Lamkin, 115 Mo. 20. (2) Under these opinions it was not necessary for the contestants to aver in addition to the fact that the election was not held in compliance with the laws, that “any one person failed to vote secretly or to make ont a secret ballot and that the election was not in effect secret.” (3) The first of the contentions of the relator is that respondent must allege that the manner of holding the election resulted in actual fraud and that respondent must allege in what way it was fraudulent. No court has held this to be the law. It would be impossible to prove such an allegation of fraud.
   REVELLE, J.

This is an original proceeding by certiorari to quash a judgment of the Kansas City Court of Appeals reversing a judgment of the circuit court of Macon County, Missouri, which latter judgment’ was rendered on the pleadings in a certain case wherein one Ed. T. Miles was seeking to contest a local option election held in the city of Macon, on December 8, 1913. [Miles v. Macon, 193 Mo. App. 306.] The notice of contest, which in such cases fills the office of a petition and to which contestee successfully demurred, attacked the election upon the ground, among others, that the same was not held in compliance with the Australian Ballot Law, but in conformity to a city ordinance whose provisions are in conflict with the election laws of the State. The requirements of the general law, not exacted by the ordinance, and which it is alleged were totally disregarded and violated in the election held, are those contained in sections 5897, 5898 and 5919, Revised Statutes 1909. The specific complaint is that no booths or compartments or other conveniences to enable the voter to prepare and cast a secret ballot were furnished; no writing materials or other supplies and conveniences were provided with which the voters could erase the clause against which they desired to vote and that no instructions for the guidance of electors were printed and posted; that many persons were in the polling places preparing ballots for the voters, and electioneering against the sale of liquor; and that by reason of all these matters the voters were deprived of a free and fair opportunity to cast a secret ballot and vote their real sentiments.

We have no original appellate jurisdiction of this cause and our review is limited to the question of whether the Court of Appeals in holding as it did went contrary to the last previous rulings of this court. While this court has recently done considerable writing and its members expressed divergent views as to what constitutes our record in cases of this class, we all yield assent to the one proposition that the courts of appeals are courts of last resort, and when acting within their jurisdiction and not in violation of our. decisions, can decide cases as their judgment dictates, and in so doing can, without interference on our part, commit error and decide incorrectly, just as we can-.[State ex rel. Delano v. Ellison, 181 S. W. 78; State ex rel. Pedigo v. Robertson, 181 S. W. 987; State ex rel. Iba v. Ellison, 256 Mo. l. c. 666; Majestic Mfg. Co. v. Reynolds, 186 S. W. 1072; Harrison v. Jackson County, 187 S. W. 1183.]

If tlxe Court of Appeals did not run afoul our decisions in holding that the election was invalid for the reasons heretofore stated and that the contestant should not be permitted to dismiss the action under the circumstances hereinafter stated, our writ must be quashed, for these are the only questions properly presented and legitimately involved. Concerning the first the Court of Appeals says:

“The general rule is that if there is a substantial compliance with the law a vote will not be invalidated or an election annulled even if certain provisions regarding the manner of the holding of the election are violated unless the statute itself provides that such violation shall have that effect; that in the absence of such a provision a failure to follow.some of the many provisions of the Australian Ballot Law, which failure does not violate the general spirit and controlling object of the law, will not, in the absence of fraud in perpetration and'result be held sufficient to invalidate the election, but will be regarded only as a mere irregularity. On the other hand, if there is a total disregard of the law, or a wilful violation of the general spirit and controlling purpose thereof, then this is sufficient to annul the election. [Hall v. Schoenecke, 128 Mo. 661; Gaston v. Lamkin, 115 Mo. 20;. State ex rel. v. McMillan, 108 Mo. 153; O’Laughlin v. City of Kirkwood, 107 Mo. App. 302; State ex rel. v. Seibert, 116 Mo. 415; Bowers v. Smith, 111 Mo. 45; Foster v. Scarff, 15 Ohio St. 532; Zeiler v. Chapman, 54 Mo. 502.] ...
“Now, if the facts alleged are true, and for the purposes of the demurrer we must so accept them, then it would seem that where an election was held in which no booths were provided, where no facilities were furnished to the voter for marking his ticket, and doing so alone and free from observation or from coercion of any sort; Avhere many persons were allowed to be in the polling places electioneering with the voters and making out and furnishing to the voters ballots already prepared; and where the voters did not have a free and fair opportunity to cast a secret ballot and vote their real sentiments uninfluenced by those about them, the election cannot be said to have been held in substantial compliance with the Australian Ballot Law. "We do not mean to say that a mere deviation from the methods marked out for the holding of an election would be sufficient to violate the spirit and general purpose of the law and invalidate the election, but certainly, the failure to observe any of the above requirements would do so. Especially the fact that there was an entire absence of booths, whereby no opportunity was afforded to preserve the secrecy of the ballot.” ;

The court then proceeds to point out that the object of the Australian Ballot Law is to enable the voter to prepare and cast his ballot in secret and free from observation, coercion, intimidation or corruption and in support thereof cites Hall v. Schoenecke, 128 Mo. 661; Woodward v. Sarsons, L. R. 10 C. P. 733; and Ledbetter v. Hall, 62 Mo. 422.

The court further says:

“To dispense with booths or compartments entirely is to ignore the very heart and vitals of this purpose of the Australian Law. ... If booths can be dispensed with, which enable the voter to prepare his vote in secret, then why cannot the ballot boxes and the ballots themselves be dispensed with? The truth of the matter is, an election without booths of any sort is an election held in total disregard of the Australian Law. ... If the law’s requirements as to booths and as to secrecy in the preparation' and depositing of the ballot can be dispensed with without violating the whole object and spirit of the Australian Ballot Law, and disregarding it entirely, then we do not know what would violate or disregard it.”

Relators here insist, as they did in the Court of Appeals, that the facts stated constitute mere irregularities which do not invalidate the election, and in support thereof cite Skelton v. Ulen, 217 Mo. 383. The Court of Appeals discusses that particular case and approves the doctrine and conclusion therein announced. In that case this court merely held that an •election was not void merely because the booths provided were not screened and there was no guardrail. It clearly appears from the record of that case that the election was held in pursuance of the Australian Ballot Law and was strictly complied with in all respects except that there was no guardrail and that the booths furnished were without screens. Such matters clearly constitute a mere irregularity, but that is. radically different from a case where no effort whatever has been made to conduct an election in pursuance of the law. This election was conducted as though the general election laws were not applicable, although sections 7239 and 9145, Revised Statutes 1909, expressly make them so.

If the allegations of the notice are true, the whole spirit and purpose of the general law was completely ignored and violated, and if the matters complained of can be treated as but irregularities it is difficult to conceive of a case which would not fall within that innocent class.

We have carefully reviewed the decisions of this court which relators cite as holding the contrary, but find that they not only do not sustain their contention, but are in spirit to the contrary.

The facts material to the second contention are that after the cause was submitted on appeal and after a decision had been rendered and an opinion handed down, and while a motion for rehearing was pending, Ed. T. Miles, in whose name the • contest was conducted, without the knowledge or consent of his attorneys, appeared through the attorneys for his adversary and asked that the motion for rehearing be sustained and the judgment of the circuit court be affirmed, assigning as reasons therefor that he had become a non-resident of the city and had been criticized for his action in instituting and conducting the contest. The Court of Appeals denied his motion, holding that a local option election contest is not the private affair of the person in whose name it is instituted. The court says:

“He acts for the general public as well as himself. Having voluntarily assumed this public duty he has not the right to withdraw from it at his caprice if in so doing he destroys the public right he set out to maintain. ’ ’

The court then points out some of the far-reaching results which might follow in the event the contestant was allowed arbitrary control of such an action. It cites cases and authority holding that the action is one in which the public must be considered a party and that if its interests will be' prejudiced or adversely affected by a dismissal, the same will not be permitted.

The present case itself argues well in support of the conclusion reached by the court. Law and orderly procedure demand that on all matters submitted to the public for decision a full and free opportunity for an expression of the public will be afforded. To assure this result provision is made for a contest, which must be instituted, if at all, within a specified period. In cases of this character any qualified voter is authorized to institute the contest within twenty days after the official count. It is not necessary that he be interested in the business of selling or suppressing the sale of intoxicating liquor. ' It is not the policy of the law to encourage the institution of numerous suits having one and the same purpose. When a contest, peculiarly affecting the public interest as local option contests do, is instituted, the public is justified in assuming that it will be prosecuted to an end and that the question of whether the election has been free and open and has reflected the public will, will be finally determined, and this, regardless of the results of such an election.

Further indicating the public nature of such a contest is the section authorizing same and which provides that the public, that is the municipal body or county holding the election, shall be made the contestee or party defendant. [Laws 1909, p. 470.]

The Court of Appeals has found that the election conducted in the instant case was invalid and did not afford an adequate opportunity for the expression of the public will, yet, notwithstanding this, if the contestant is now permitted to dismiss the contest (it being too late for the institution of another) the invalid election would have the effect of a legal one, and this is contrary to the lawful order of things. Or, as said by the Court of Appeals: The consequence of such a precedent “would plague any good community in the State which may find itself in the reverse situation to that said to be facing the welfare of the city here involved. See the result of permitting such action: The majority of the legal voters of a community or city may vote at an election against the sale of intoxicating liquors; corrupt, ignorant or well meaning though mistaken officers, through the aid of fraudulent or illegal votes, may certify the election as being in favor of the sale of such liquors. A contest cannot be had unless begun within twenty days. A voter (possibly an enemy to the cause, in disguise) assumes the duty of contesting, begins the proceedings and then, a few days after the time limit has expired, dismisses the contest, leaving the community to he afflicted with the traffic it had voted against.”

It is, however, unnecessary for us to determine the soundness or correctness of this ruling since an investigation discloses that it is not in conflict with any previous holding of this court.

Without analyzing the cases cited by relators, it suffices to say that they involve altogether different questions and are in no manner controlling of the one herein presented. The authorities cited in this connection are Hoover v. Railway, 115 Mo. 77; Gay v. Orcutt, 169 Mo. 400, and Gantt v. Brown, 244 Mo. 271.

Finding no conflict between the decision in this case and the prior rulings of this court the preliminary

writ heretofore issued is quashed.

Graves, G. J., Walker, Faris, and Blair, JJ., concur; Bond, J., concurs in result for want of jurisdiction; Woodson, J., dissents.


source: Caselaw Access Project

author: BOND, J.

license: Public Domain

text:
    In re BIG LAKE DRAINAGE DISTRICT, Appellant, v. B. G. ROLWING.
    In Banc,
    December 5, 1916.
    1. DRAINAGE DISTRICT: Plan of Reclamation: Modification. It is competent for the board of supervisors of a drainage district to adopt as a whole the report of the plan of reclamation made by the board of engineers, or to modify it with the consent of the chief engineer.
    2. -: -: -: Correction of Record. Where the record of the board of supervisors fails to contain a recital of the modification of the plan of reclamation, a correction made above the erased signature of the secretary, and after being so made as to state the action of the board as shown by its minutes and signed by the secretary and president, should not be excluded from evidence, on the gound that no plan of reclamation was ever adopted or filed by the board as required by law.

      3. -: Inclusion of Extraneous Matter. A recommendation in the report of the plan of reclamation as made by the board of engineers that certain lands be either condemned for storage basins or not assessed for benefits, and a recital therein that “the board decided to defer this matter until the next meeting,” and a recital in the records of the drainage district that at a subsequent meeting the board of supervisors decided the lands should be assessed as other lands and not condemned for storage, did not invalidate the plan of reclamation, and did not authorize the trial court to reject the plan, as being, on this account, not in substantial conformity with the statutory requirements, since the whole matter pertains to the duties of the board of commissioners, and is entirely outside the statutory duties of the engineers and supervisors.
    4. -: Lands for Right of Way: Condemnation Without Attempted Agreement. The Drainage Act does not require that it shall be alleged in any petition that an effort has been made to agree with the owner whose land is taken for a right of way, nor does it require that an effort be made to contract with the owner before the filing of a petition for the appointment of commissioners; and the reading of such requirements into the act is not justified by that part of it which prescribes that where lands are taken the proceedings shall follow, “as nearly as possible, the procedure that is now provided by law for the appropriation of land and other property taken for telegraph, telephone and railroad rights of way.” This language was not intended to add any conditions not prescribed by.the act itself, and, as the act is to be liberally and broadly construed to effectuate its beneficial purposes, a condition that the commissioners must attempt to agree with the land owner upon compensation before his land is taken is not a part of the act.
    Appeal from Scott Circuit Court. — Hon. R. G. Ranney¡ Special Judge.
    Reversed and remanded.

      J. L. Fort, Boone & Lee and Russell & Joslyn for appellant.
    (1) A strict construction of a statute is a close adherence to the literal interpretation, and a case is excluded from its operation unless the language of the statute includes it, while a statute liberally construed may be extended to include cases clearly within the mischief intended to he remedied, unless such construction does violence to the language used. Lagler v. Bye, 85 N. E. 36; Moore v. Company, 164 Mo. App. 165; Priest v." Capitain, 236 Mo. 446; State v. Company, 87 Pac. 286; Begent v. Company, 112 Mo. App. 271; State v. Taylor, 224 Mo. 455. ■ Laws relating to drainage and protection to overflowed lands should not receive so narrow and restricted construction as courts give to laws governing the assessment and collection of revenue. State v. Bates, 235 Mo. 262. (2) The plan of reclamation is sufficient if it sets forth particularly the facts that the statute requires to he stated therein if the statute itself is valid. Drainage Dist. v. Bail-roads, 236 Mo. 94; Naum v. District, 113 Mo. App. 575. (3) The chief engineer must consent to changes in the plan of reclamation made by the board of supervisors. He is not required to consent to the recommendations made by him because he could not recommend without consenting. In this case, the engineer made his recommendation. The statute does not require of the hoard of supervisors to act upon the recommendations of the engineer. Laws 1913, p. 237, sec. 10. (4) Neither the district nor the landowner is bound by the recitals in the record of the proceedings of the board of supervisors, unless those recitals are true. The recitals are competent evidence of the facts recorded, and required by law to be recorded, but not exclusive. Paving Co. v.' O’Brien, 128 Mo. App. 282. (5) It is plain that the record of the board of supervisors may be supplied by parol evidence, and any recital in that record may be shown by parol to be false, or it may be shown by parol that certain proceedings were had, which were not put upon the record.. Sheehan v. Hospital, 50 Mo. 155; Lamar v. Lamar, 128 MA 188; Houck v. District, 248 Mo. 373. (6) If no objections are made by the landowners to the appointment of commissioners by a disqualified judge until after the commissioners’ report is filed, and evidence heard upon exceptions thereto, they will be deemed to have waived any objection to the court’s jurisdiction. Drainage Dist. v. Bichardson, 237 Mo. 49; State ex rel. v. Foard, 189 S. W. 71. (7) The action of the hoard of supervisors in modifying the plan of reclamation did not injure the exceptor. If the exceptor was not satisfied with the modification he should have taken the matter before this court on a writ of certiorari. This is a collateral attack upon the plan of reclamation, and it cannot he made such an irregularity as the modification aforesaid. State v. Taylor, 224 Mo. 455.

      Haw & Brown, Oliver & Oliver and James A. Finch for respondent.
    (1) A construction upholding the proceedings that were set aside by the judgment of the lower court in this instance would he more than liberal; it would be loose construction, leaving out of consideration many of the positive requirements of the statutes. Drainage Dist. v. Harris, 184 S. "W. 91. The incorporation of a drainage district by a circuit court is a right conferred upon said court by the statute of the State. It is a special power conferred upon the circuit court by the act itself and where a court of general jurisdiction is proceeding in the exercise of special powers, wholly derived from the statute, and not according to the course of common law, its jurisdiction must appear on the record and cannot he presumed, even in a collateral proceeding. Eaton v. St. Charles County, 76 Mo. 492; St. Louis v. Glasgow, 254 Mo. 262'; Ellis v. Railroad, 51 Mo. 200. (2) No plan for reclamation Avas adopted by the board of supervisors, and therefore the court was never vested with jurisdiction to appoint commissioners, (a) The chief engineer of the district never submitted to the board of supervisors a plan for reclaiming the lands in the district. This duty is mandatory and forms the basis of the entire reclamation structure. Secs. 9, 10 and 26, Laws 1913, pp. 237-250; Drainage Dist. v. Railroad, 236 Mo. 94; State ex rel. v. Sheppard, 245 Mo. 50. (h) This “true and perfect copy of the record of said hoard” affirmatively shows that the hoard of supervisors never decided and determined upon “the plan for reclamation,” bnt specifically and directly refused to adopt the plan on the 4th day of October, 1913, and deferred the decision of that matter until another meeting. Secs. 10 and 12, Laws 1913, pp. 237-238. (c) An alteration and erasure of a record entirely within the possession and control of the district, apparent on the face of the record, imposed a duty upon the district to satisfactorily explain the alteration to the court before the record was entitled to he admitted in evidence. The court sustained the objection and the district attempted to make the explanation. After a full hearing and examination of the record itself, the court excluded the offering. Such action was not error. Lawson on Presumptive Evidence, Rule 85, p. 389; 7 Am. & Eng. Ency. Law, p. 272-6; Wigmore on Evidence, see. 2525; Kelly v. Thuey, 143 Mo. 433; Hays v. Bayliss, 82 Mo. 209. The party who produces an altered instrument is generally bound to explain the alteration or erasure, if it is a material point. Jackson v. Osborn, 2 Wend. 555; Chappell v. Spencer, 23 Barb. 584; Tillon v. Ins. Co., 7 Barb. 564; Acker v. Ledyard, 8- Barb. 514. (d) Even if the entry on the record of the hoard of supervisors, made long after the date of the secretary’s certificate to and the filing of the plan for reclamation, had been otherwise competent, it was totally incompetent for the reason that it had never been certified to the clerk as a part of the plan for reclamation, and the commissioners, had they been properly appointed, could not have been guided in appraising rights of way and assessing benefits or damages by this order. (3) In condemnation of the rights of way for ditches inside and outside of said drainage district, the court is now required to follow, as near as possible, the procedure that is now provided for by law for the condemnation for rights of-way for telegraph, telephone and railroad purposes. Laws 1913, p. 241, sec. 16, and p. 249, sec. 26. And in proceedings for the condemnation of lands by telegraph, telephone and railroad corporations the petition must set forth “the general direction in which it is desired to construct its road, telephone or telegraph line over such lands, and a description of the real estate or other property which the company seeks to acquire, and an averment that the company and the owner were unable to agree upon the compensation to be paid for said right-of-way.” Secs. 2360, 5513, R. S. 1909; Railroad v. Carter, 85 Mo. 451; Ells v. Railroad, 51 Mo. 203; Railroad v. Young, 96 Mo. 39; Jones v. Zink, 65 Mo. App. 412; Peed v. Barker, 61 Mo. App. 556; St. Louis v. Glasgow, 254 Mo. 262. Supervisors may acquire. right of way by purchase. Laws 1913, p. 249, sec. 26. “The refusal of the owner to relinquish is a jurisdictional fact, in the absence of which even a court of general jurisdiction would be powerless by judgment of condemnation to wrest property from its owner.” Ells v. Railroad, 51 Mo. 203.
   BOND, J.

I. This is the second appeal in this case. The facts presented and the points ruled on in the first appeal are set out in In re Big Lake Drainage District; Marshall et al., Appellants, v. B. C. Rolwing, 265 Mo. 450.

In that case it was held that the district was validly incorporated and the circuit court of Scott County was possessed of jurisdiction of all further proceedings to be taken in the case and the judgment of the circuit court, purporting to annul the incorporation of said district, was reversed and the cause remanded for further proceedings.

On the second trial it was shown that a board of supervisors was duly elected, which appointed a chief engineer and assistant; that a plan of reclamation was submitted to the board of supervisors, which will be adverted to in the subsequent discussion; that the board of supervisors filed a petition for the appointment of commissioners to appraise the land; that the regular judge of Scott County made an order in vacation appointing commissioners, who made a report of their acts and doings as such, which, together with the exceptions thereto filed by respondent, was heard by Judge Ranney, who was appointed and called as special judge on account of the disqualification of the regular judge; that on September 3, 1915, the court sustained the exceptions of respondent, B. C. Rolwing, for the reasons alleged in its judgment: first, that no plan of reclamation was ever adopted or filed by the board of supervisors of said Big Lake Drainage District, as required by law, and, second, that the report of the commissioners filed on March 16, 1914, purported to deprive the exceptor and others of their property for the use of the district without due process of law, in that said report sought to condemn their property for rights of way and storage basins without having made an effort to agree with the owners upon the price to be paid for such property and without, after failing to agree, having stated such failure in a petition for the condemnation of such lands; wherefore the court found the issues for the exceptor, B. C. Rolwing, and from this decree the drainage district duly perfected its appeal to this court.

II. Obviously the judgment of the lower court cannot be affirmed if there was a plan of reclamation in substantial conformity to the statutory requirements and if it was not indispensable,' that it should appear in the pleadings, that an effort was made to purchase exceptor’s property before the commissioners made their report assessing damages and benefits.

We shall consider the questions thus presented in order. The present record shows a plan of reclamation reported by the body of engineers which was sufficient under the statute unless invalidated by the following suggestion therein, to-wit: “The report of the board of engineers recommended either condemnation of certain lands for storage, or • of non-assessment of these lands for benefits. ■ After full discussion the board decided to defer this matter until the next meeting.” (Italics ours.) When the plan of reclamation was reported to the hoard of supervisors, it was competent for that body to adopt it as a whole or to modify it with the consent of the chief engineer. The above quotation appears in the records of the drainage district of date October 4, 1913. The record of the board of supervisors, dated October 6, 1913, shows a report of the chief engineer of his meeting with the board of supervisors on October 4, 1913, when the plan for reclamation was submitted, and that, in certain respects, modifications were agreed upon. Said report concluded, to-wit: “We would further report that we have made these additions and modifications on the maps, profiles, estimates, etc., forming a part of the plan of reclamation and that said modified plan for reclamation is herewith filed. L. T. Berthe, Chief Engineer. ”

The records of the drainage district show, by date October 20, 1913, that the board of supervisors passed upon the suggestion of the board of engineers above quoted and decided that the lands referred to should be assessed as other lands in the district and not condemned as a storage basin. This entry on' the records of the district was objected to for the reason that it appeared to have been written above an erasure of the name of the secretary. The testimony of the president of the board of supervisors was that he was present at the meeting referred to in that record of the proceedings and wrote' out the minutes of the meeting himself; that when he looked over the record subsequently he discovered that the clerk had not copied that part of the minutes in the record; that the omitted portion contained an order made at that meeting and that the records of the meeting were not complete until that order was written in; that he thought the correction was made the next day or soon afterwards; that after the correction the name of E. Lindsay Brown, Secretary, was signed, and a blank space left for the signature of the president.

The ruling of the learned circuit judge in excluding this corrected record was erroneous, since there was nothing in the testimony to show that it was occasioned hy anything else than the misprision of the secretary of the hoard of supervisers, Besides the testimony did show that, as finally copied upon the record book, it contained the action of the hoard of supervisors as manifested by the minutes kept of that particular meeting. Its only utility, however, is to disclose the action taken by the hoard of supervisors in reference to a suggestion contained in the plan of reclamation. It in nowise impaired or affected the validity of the plan of reclamation as it had been submitted to the hoard of supervisors and adopted thereafter with modifications consented, to hy the chief engineer, as disclosed in the records of the district. The suggestion in itself and the order of the hoard of supervisors rejecting it and consenting to assess the property in question were both outside the statutory duties of these two officials and fell properly within the limits of the duties prescribed for the board of commissioners, whose duty it was to assess damages and benefits.

We therefore hold that the learned circuit judge was in error in ruling, as he seems to have done, that the plan of reclamation in this proceeding was invalidated by reason of the insertion therein of the above quoted advisory clause and the temporary postponement of the consideration of it.

III. Before adverting to the second ground upon which the learned judge rested his conclusion, it is well to call attention to the express language of the statute for the organization of drainage districts by the circuit court, which is now substituted for the repealed portions of the Revised Statutes and acts amendatory thereof, relating to that subject, to-wit: “This act is hereby declared to be remedial in character and purpose and shall be liberally construed by the courts in carrying out this legislative intent and purpose.” [Laws 1913, p. 267, sec. 62.] This section was also referred to in support of the statement of Faris, J., in In re Mingo Drainage District, 267 Mo. l. c. 278, to-wit: “Courts in this, as in practically every other jurisdiction, have held that such statutes are to be liberally construed. ’ ’

The plan of reclamation as adopted by the board of supervisors, including the modifications consented to by the chief engineer, was filed with the petition of that body for the appointment of commissioners. This identical plan, except the delayed action of the board of supervisors on the extrinsic suggestion made by the chief engineer above quoted, had been duly filed and certified to the circuit court. The petition thus filed prayed for the appointment of commissioners to appraise the land and the performance of other statutory duties. Such commissioners were subsequently appointed and duly reported their action to the circuit court and respondent, among other grounds, excepted to the damages allowed him in said report. It is, however,' insisted by the learned counsel for respondent, among other objections to the petition filed for the appointment of commissioners, that it does not show that the district made an effort to agree with respondent for the sale of the right of way over his land. In support of that contention respondent cites the statute (R. S. 1909, sec. 2360) relating to proceedings to condemn lands by telegraph, telephone and railroad corporations, etc., and the adjudications thereon. The section of the statutes regulating proceedings in the establishment of drainage districts, provides for “following, as nearly as possible, the procedure that is now provided for by law for the appropriation of land and other property taken for telegraph, telephone and railroad rights of way.” [Laws 1913, p. 241, sec. 16.] But the Drainage Act does not require that it shall be alleged in any petition that an effort has been made to agree with the owner, nor is there any language in the act requiring an effort to contract with the owner antecedently to the filing of the petition for the appointment of commissioners. On the other hand, the act relating to condemnation of lands by railroads, etc., does contain a provision requiring such corporations to agree, if possible, upon proper compensation to be paid, before petitioning the circuit court for the condemnation of the land. As the Drainage Act contains no such provision, it is insisted in support of the judgment below, that such a provision should be held to be imported into it by reason of the fact that the above quoted clause provides for a procedure on the part of the court entertaining jurisdiction of the drainage proceeding, analogous to the procedure regulating the appropriation of land by railroads and other corporations. We cannot assent to that theory. The fair meaning of this provision is that the trial court might use, on the trial of drainage cases, the procedure, as far as applicable, employed in cases of condemnation by railroads. It was not intended by this mere reference to the procedure in other cases, to add any conditions not prescribed by the statute itself for the establishment and organization of drainage districts. Such a construction of the statute would reach the rigid extreme of importing into it, by mere similarity of procedure with other statutes, a requirement not contained in it. We are not inclined to take that view, for we think it could not be done without violating the statutory command that all the terms and provisions of the Drainage Act shall be construed broadly and liberally to effectuate the wholesome and beneficial motives which prompted its enactment.

Other minor objections are urged to the report of the commissioners which seem not to have been noticed in the judgment of the trial court and which we think are without merit.

Our conclusion is that the judgment sustaining the exceptions of respondent to the report of the commissioners was erroneous. It is, therefore, reversed and the cause remanded for further proceedings not inconsistent with this opinion.

All concur.


text:
    THE STATE ex rel. COMMONWEALTH TRUST COMPANY v. WALTER K. CHORN, Superintendent of State Insurance Department.
    In Banc,
    December 6, 1916.
    BANK COMMISSIONER: Depositary of Securities: Prior Withdrawal of Company. The Act of March 25, 1915, Laws 1915, p. 188, requiring the Superintendent of the Insurance Department to turn oyer to the Bank Commissioner all securities of companies “now doing business in this State or which may hereafter be organized under the provisions of this article” in his custody, did not make the Bank Commissioner the depositary of securities of a company which prior to its enactment had ceased to do business in this State, but such securities remained in the legal custody of the Superintendent; and where a trust company had ceased to do business, and has in all respects complied with the law governing its right to recover securities deposited with the Superintendent prior to the enactment of said statute, it is his duty to deliver said securities to the company.
    Mandamus.
    Writ granted.

      Fordyce, Holliday & White for relator.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General for respondent.
   BOND, J.

I. In this proceeding the parties stipulated that, with our consent, the application for the writ of mandamus should stand on demurrer filed thereto, upon a waiver of the issuance and service of an alternative writ of the same tenor.

The object of the stipulation is to secure the speedy determination of the right to a permanent writ on account of the termination of the office of the defendant in January, 1917, and hence to obtain our final judgment as to the sufficiency of the facts stated in the petition as if they were set forth in an alternative writ to which a demurrer had been filed.

The petition, in substance, states that the relator was incorporated as a trust company under the laws of this State in 1901 and continued doing business as SIlck until March, 1914, at which time, with the permission of the Bank Commissioner of the State of Missouri it ceased to act as a trust company, but continued its corporate existence for liquidating purposes; that since . said date it has not transacted any of’ the business specified in section 1140, Revised Statutes 1909, although maintaining always a deposit of securities of the value of more than $200,000 with the Superintendent of the Insurance Department of the State of. Missouri, as required by said section of the statutes; that the respondent is now and during the present year was the duly appointed and acting Superintendent of the Insurance Department of the State of Missouri and as such has in his possession the specifically described securities mentioned in the petition, aggregating' in value $232,-155.40.

The petition then states that prior to the eleventh of April of the present year, the relator had fully discharged all the debts and liabilities upon every kind of contract and agreement, to secure which the aforesaid securities were kept on deposit with the respondent, and desiring to secure the return to it of said securities, it made to the respondent the proper application specified and prescribed, in the proper mode and by the proper officers defined, in sections 1140' and 7072, Revised Statutes 1909, and thereby requested him to deliver to it the securities so deposited in conformity with the provisions of said statutes.; that thereafter the respondent, in accordance with such request and with the provisions of section 7072,. caused to be published for the time prescribed by law', in a newspaper in the city of St. Louis, where relator is located, notice of the intention of relator to cease its business in said State, such publication being made in all respects as required by law and a copy thereof being appended to .the petition; that after said publication the respondent caused an examination of the hooks and papers of the relator to be made by a competent person and satisfied himself therefrom that all the debts and liabilities, for the security of which said securities were deposited with him, had been released and discharged; that said investigation was completed before the twentieth day of July, 1916, and thereupon relator, having in all things complied with the provisions of law relating thereto, demanded the delivery to it, as aforesaid, of the securities on deposit with the respondent; that respondent failed and refused to comply with such request for the sole reason, as alleged by him, that since the enactment of March 25,- 1915 (Laws 1915, p. 188, sec. 166), the rights and duties theretofore imposed upon the respondent as Superintendent of the Insurance' Department had been devolved on the Bank Commissioner and hence it was respondent’s duty to transfer the securities to the Bank Commissioner; wherefore relator must make its application to said Bank Commissioner.

The petition then alleges that relator did make application to the Bank Commissioner, who refused to consider the same on the ground that relator “was not doing business in Missouri,” on the date of the passage and approval of the said act of the Legislature aforesaid, to-wit, on the 25th day of March, 1915, and that, therefore, said act and the provisions thereof did not apply' and he, as Bank Commissioner, would not receive said securities from respondent, nor deliver them to relator, nor accept a receipt from relator running to the respondent and said Bank Commissioner jointly. The- petition alleges that all these matters were made known to the respondent, who still fails and refuses to deliver to relator said securities so deposited, but still retains and withholds them. The petition concludes with the proper prayer for the alternative writ of mandamus.

II. Relator has complied strictly with the statutes in the steps taken by it to recover the securities originally deposited to secure certain contracts and engagements which it was authorized to make and enter into under the provisions of law goveming the conduct of the business of a trust company. The. only ground for the refusal of respondent to redeliver said securities, is that he thinks they should first be turned over by him to the Bank Commissioner and by the latter returned to relator. The Bank Commissioner, however, as shown in the petition, refuses to accept them for the reason that the act of the Legislature devolving on him the powers and duties theretofore imposed by statute upon the Superintendent of. In-, surance, was enacted with an emergency clause on March 25, 1915, at which date relator had discontinued its business as a trust company and since the section (Sec. 166, Laws 1915, pp. 188, 189) which made him the successor of the respondent as Superintendent of Insurance in the custody of such deposits of securities, only gave him such rights as to companies “now doing business in this State or which may hereafter he organized under the provisions of this article to do business in this State,” he had no right to receive from respondent the securities in question. As-to the right of the Bank Commissioner in cases where the provision making him the succeeding depositary of the Superintendent of Insurance is applicable, it was ruled by this Court In Banc, that the act made him the legal successor as to all trust companies engaged in active business as such, of all the securities .previously held by the Insurance Superintendent, which has not become charged with the obligations of the depositor while in the possession of the Superintendent of Insurance. [Fidelity Trust Co. v. Revelle, 266 Mo. 202.] The only difference between the case cited and the one made by the present petition lies, however, in the fact that the trust company now seeking to recover its securities has wholly discontinued its business as such, or for any other purpose than liquidating its assets and discharging its obligations has fully satisfied and discharged all of its contracts and engagements which the said securities were deposited to secure. The plain purpose of the statute substituting the Bank Commissioner for the Superintendent of Insurance was to facilitate the business of such companies as should be going concerns at the time of the passage of the act and to provide a proper custodian of the securities which should guarantee performance of future engagements of such trust companies. This is the patent purpose of the statute in question, which was never designed to have the effect, where a trust company had wholly ceased business as such and discharged all liabilities intended to be secured by such deposit, to cause the Superintendent of Insurance to turn over such securities to the Bank Commissioner in order that he, in turn, might deliver them to the corporation entitled to receive them. No such useless ceremony was in the thought of the lawmakers when framing the Act of 1915, and in expressing his opinion to the contrary the .Bank Commissioner correctly apprehended the purpose of the statute which, as stated in its terms, was intended to govern companies then engaged in business in this State or thereafter organized to engage in business in this State.

It necessarily follows that, since the securities in question were not receivable by the Bank Commissioner, their legal custody remained in respondent whose duty now is to turn them over to the depositor, after full compliance with the provisions and requirements to that end contained in the statutes.

As the petition shows not only that relator has in all respects complied fully with the law governing its right to recover such securities, but that respondent has also performed all duties enjoined on him by statute before he shall surrender such securities, we must hold that he has omitted a ministerial duty specifically commanded by the statute (R. S. 1909, sec. 7072), and that our peremptory writ, should be awarded requiring him to deliver to relator the securities set out in its petition.

It is so ordered.

All concur.


author: FARIS, P. J.

text:
    THE STATE v. EVERETT SWEARENGIN, Appellant.
    Division Two,
    December 6, 1916.
    1. INFORMATION: Surplus Preposition. The use in four different places of the preposition “of” in an information charging that the assault was done of defendant’s “malice of aforethought,”- is non-hurtful surplusage, but should be avoided, and the information may be amended by striking it out.
    2. MURDER: Instruction: Self-Defense: Necessary to Kill. An instruction on self-defense in a murder ease which tells the jury that “if defendant had reasonable cause to believe and did believe that it was necessary for him to shoot and kill to protect himself from such apprehended danger, you will acquit on the ground of self-defense,” is not because of the use of the word “kill” reversible error; and in the absence' of any evidence contradicting defendant’s intent to kill and in view of the fact that he did shoot deceased in a vital spot and kill him, complaint of the word “kill” as used in the instruction is more specious than real.
    3. OBJECTIONS TO EVIDENCE: Failure to Rule. If the objection made to the admission of evidence was not sufficient to make a ruling thereon necessary, the trial court cannot be con: victed of error for failing and neglecting to rule, upon it.
    4. CROSS-EXAMINATION OF DEFENDANT: Matters Not Referred to in Chief. Defendant cannot in cross-examination be questioned about matters to which he did not refer in his direct examination. He cannot on cross-examination be asked if he did not discharge his pistol on the public road three hours before shooting or seeing deceased, where he had not in testifying for himself referred to the matter.
    5. DISCONNECTED ALTERCATION. Testimony offered by the State tending to show that three hours prior to the shooting defendant had an altercation with a girl, which was a difficulty entirely disconnected and separate from the homicide,- should not be admitted.
    6. INSTRUCTION: Presumption for Second Degree Murder. An instruction telling the jury that “if they find from the evidence that defendant intentionally killed” deceased “by shooting him with a loaded pistol and that such pistol was a deadly weapon, then the law presumes the killing was murder in the second degree, in the absence of proof to the contrary; and it devolves upon the defendant to adduce evidence to meet or repel that presumption, unless it is met or repelled by evidence introduced by the State,” has no place in a case wherein ail the circumstances of the homicide are known and shown by the testimony of eye-witnesses, and is error. Presumptions are invoked only when evidence is lacking, and are not to be used, in the face of the fact presumed, to batter down evidence. [Criticising, but distinguishing, State v. Minor, 193 Mo. 1. c. 612.]
    7. -:-: Undue Burden Upon Defendant. To make use of the presumption that the intentional killing of another by a deadly weapon is second degree murder, in a case in which all the facts are shown by eye-witnesses, is to assume the absolute truth of the State’s side of hotly disputed facts, and to demand that defendant rebut the presumption so unwarrantably drawn is to put on him an undue burden, and to beg the identical question submitted to the jury upon the proven facts.
    Appeal from Douglas Circuit Court.— Hon. John T. Moore, Judge.
    Reversed and remanded.

      Fred Stewart and G. Purd Hays for appellant.
    (1) The court erred in refusing to quash the information, as the same is vague, indefinite, does not intelligently inform the defendant of the nature of the charge against him, is not properly verified and charges no offense under the laws of Missouri. ■ The phrase, “On purpose,' and of his malice of aforethought,” is not known to the law. State v. Bonner, 178 Mo. 424; State v. Schnettler, 181 Mo. 173; State v. Meysenberg, 171 Mo. 1; State v. Keating, 202 Mo. 197. (2) The court erred in refusing to rule on the objections made by the defendant to the prejudice of the defendant. When called upon to pass on the rejection or admission of evidence it was the court’s duty to rule. Morrison v. Turnbaugh, 192 Mo. 427; State v. Rothschild, 68 Mo. 52; State v. Conway, 241 Mo. 271; Seafield v. Bohme, 169 Mo. 546. (3) The court committed reversible error in permitting D. H. Narramore to testify about a fight or difficulty between defendant and Sarah Fitzgerald an hour or more before the fight between the defendant and Samuel 0. Narramore, the deceased. It was a matter or difficulty not in any way connected with the defendant and deceased and could only prejudice the jury against the defendant. State v. Conway, 241 Mo. 271; State v. Clayton, 100 Mo. 615; State v. Parker, 96 Mo. 382. (4) The court committed reversible error in compelling the defendant to testify, over the objection of the defendant, to things not testified to in his examination in chief, things that happened away from the presence and hearing of the deceased, Samuel 0. Narramore, and could not in any way shed any light on the killing or any issue in the cáse, and was 'prejudicial to the defendant. State v. McGraw, 74 Mo. 573; State v. Hawthorn, 166 Mo. 229; State v. Porter, 75 Mo. 171; R. S. 1909, sec. 5242; State v. Fullerton, 90 Mo. App. 411; State v.- Chamberlain, 98 Mo. 129. (5) The court committed reversible error in giving instruction number 1, as said instruction told the jury it devolved upon the defendant to prove he was not guilty of murder in the second degree. It devolved upon the State to prove the defendant guilty beyond a reasonable doubt. State v. Helton, 234 Mo. 559; State v. Gentz, 184 Mo. 223; State v. Stubblefield, 239 Mo. 526.

      John T. Barker, Attorney-General, and Kenneth G. Sears for the State.
    (1) The information in this case is sufficient to sustain the judgment. Kelly's Criminal Law & Procedure (3 Ed.), sec. 474; State v. Banks, 118 Mo. 123; State v. Gregory, 178 Mo. 56; State v. Barker, 216 Mo. 543. (a) The word “of” before the word “aforethought” can be stricken out and a perfect information will be left. State v. Myers, 99 Mo. 114; State v. Miller, 156 Mo. 84. (b) The Statute of Jeofails cures an immaterial error. State v. Shelton, 223 Mo. 128. (2) The testimony as to the Fitzgerald affair was entirely proper as one of the circumstances leading up to the homicide. 1 Wigmore on Evidence, secs. 218, 365, 396; 5 Ibid., sec. 396; State v. Kennade, 121 Mo. 405; State v. Dettmer, 124 Mo. 426; State v. Hoffman, 78 Mo. 257; State v. Crawford, 115 Mo. 620; State v. Raper, 141 Mo. 327; State v. Nelson, 166 Mo. 191. (3) The cross-examination of the defendant does not constitute reversible error. State v. Avery, 113 Mo. 475; State v. Lewis, 118 Mo. 86; State v. Barrington, 198 Mo. 71; State v. Foley, 247 Mo. 635. Instruction number 1 has been approved by the later decisions of this court. State v. Evans, 124 Mo. 411; State v. Minor, 193 Mo. 597.
   FARIS, P. J.

Defendant was tried in the circuit court of Douglas County upon an' information charging murder in the first degree, for that, as it was averred, he had shot and hilled one Samuel O. Narramore. Having been found guilty by the jury of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of ten years, he has, after the usual motions, appealed. ■

Such of the facts as may tend to make clear the points- which we will find necessary to consider in our opinion, run briefly thus:

On the 4th of July, 1914, there was a picnic at" a place in Douglas County known as Johns Mills. To this picnic came, among others, defendant, halting a moment on his journey thither, at a place called Abadale, where he purchased some cartridges for his revolver. Shortly after defendant arrived on the picnic ground, upon some provocation not disclosed (and not pertinent to this case if disclosed), defendant, got into a quarrel with a young woman, who seems to have either slapped defendant or struck him with an umbrella. Defendant in return for her blow, eithei slapped her or pushed her from him. This altercation with the young woman seems to have occurred some three hours before the time at which deceased was. killed. At a time shortly after the altercation with the young woman, deceased met , defendant and after some words, seemingly growing out of defendant’s altercation with the young woman (though the record cannot be said to be clear upon this point), defendant applied to deceased an epithet a little more vulgar and obscene than is conventional, even' in cases of homicide committed by drunk men at picnics. Thereafter defendant and deceased seem to have parted without any further hostilities occurring. After this initial altercation and some little time before the homicide, deceased, it is said, went to one John Hide, a witness in the case, and made inquiry of Hide where he could obtain a weapon. Hide directed him to the coat of the witness, which was either tied to, or hanging upon a saddle, in the pocket of which there was a pair of metal knucks. Deceased seems to have gotten these knucks, at least the witness testified that shortly afterward the knucks were gone from the pocket of the coat.

Subsequent to this and apparently shortly after the noon hour, defendant and deceased met at the picnic grounds and the shooting occurred. The testimony is conflicting as to whether defendant on this occasion first accosted deceased, or deceased accosted the defendant. The testimony for the State leaves this matter in doubt; while the testimony for the defendant is that deceased came to defendant on the picnic grounds and inquired of him whether he meant what he had said to deceased in the previous encounter, above mentioned. Being advised by defendant that the latter did mean it, deceased, applying the conventional opprobrious epithet to defendant, struck at him with a "pair of knucks, and instantly defendant drew his pistol and shot deceased.

Upon this phase of the case, and as to what happened at a time instantly before the shooting, the testimony of the State tends to show that defendant applied an opprobrious epithet to deceased and the latter replied, “I will be damned if I will take it,” and either struck defendant upon the head, or struck at him without hitting him, and defendant instantly shot deceased. The witnesses for the State say that the shooting by- defendant and the striking of, or at, defendant by deceased, were simultaneous; that they could tell no difference between them; that ‘1 they were right together.” Other evidence in the case on the part of the State shows that defendant partially drew his pistol from his pocket as he was entering into the last difficulty with deceased.

The defense is self-defense. Upon this phase there was some evidence -to the effect that deceased, before he was shot by defendant, had, as stated above, armed himself with a pair of metal knucks, and that he struck defendant therewith, wounding him on the head and drawing blood, before defendant fired the fatal shot Much conflict is to be found in the evidence touching whether the wound upon the defendant’s head and the blood which flowed therefrom were caused by a blow from deceased, or were caused by an attack made on defendant by the mother of deceased with an umbrella shortly after the shooting.

Much testimony came in as to the metal knucks. It was shown, without contradiction, that these knucks must have been gotten by deceased from the coat pocket of the witness Hide, and that they were found after the death of the deceased in the pocket of certain trousers which had belonged to the latter. That deceased either struck, or struck at defendant with a pair of knucks, or with his fist just before, or simultaneous with, the shooting by defendant, is abundantly shown by the evidence. The sole conflict lies in the questions of (a) whether deceased used a pair of knucks in his striking; (b) whether he actually hit defendant, or not; and (c) whether at the time he struck defendant, or struck at the latter, defendant was not already engaged in drawing his pistol. In other words, the questions which are troublesome and which were before the jury, are whether deceased acted, in doing what he did, to protect himself from a threatened assault by defendant with a pistol, or whether defendant, in doing what he did, acted to protect himself from a threatened assault by deceased with metal knucks. There is evidence on both sides of these questions. These were of course questions of fact for the jury. On them the jury has found against the defendant and in favor of the theory of the State. There is abundant evidence justifying this finding and so we need only consider in what we shall say, the alleged errors occurring upon the trial in the admission of testimony and in the giving of certain instructions which are challenged. These questions need not be set forth here, since we will sufficiently refer to them in connection with our discussion of them in the opinion.

I. It is urged that the information herein is bad, for that the learned prosecuting attorney, seemingly by a mere clerical misprision, thrice out of the four times in which the term is found in the information, wrote that the assault, shooting and striking were done of defendant’s “malice of aforethought,” instead of using the formal and time-tried expression “malice aforethought.” While we are of the opinion that the unnecessary interpolation of the preposition “of” was mere non-hurtful surplusage (State v. Meyers, 99 Mo. 107), yet, since this case must on other grounds be reversed and remanded, the learned prosecuting attorney may (if he is so advised) amend the information by striking out the surplus preposition, lest the attempted innovation should ■ clutter up the law by becoming a precedent, and so invite carelessness.

II. Complaint is made of the instruction given by the court on self-defense; which complaint, so far as we are able to understand its precise nature, is based upon the use by the learned trial court of italicized words in the following clause: “If at the time he (defendant) shot he had reasonable cause to believe and did believe that it was necessary for him to shoot and kill to protect himself from such apprehended danger, you will acquit on the ground of self-defense.”

A reference to the adjudged cases and a brief looking to the logic of the matter will conclusively show that this complaint is more specious than real.. While we have repeatedly criticised the language of this instruction as being a departure from the approved and proper form, we have not said of late at least that the giving of it constitutes reversible error. [State v. Lewis, 248 Mo. 498.] In the case last cited, a circumlocution or paraphrase is suggested in lieu of the alleged objectionable expression “that it was necessary for him to shoot and kill to protect himself.” It is there said that it would be better to say “that it was necessary for him to lose his pistol in the way he did to protect himself.” [State v. Thomas, 78 Mo. l. c. 339; State v. Talmage, 107 Mo. l. c. 557.] Palpably, the point of defendant’s objection is that the instruction as given requires that defendant believe the danger impending to be so great as that, to avert it, he must shoot to kill before he is allowed by law to shoot at all. In the absence of any evidence contradicting the intent to kill and in the light of the facts before us here as to the manner of the use by defendant of his pistol, that is, that defendant did with a deadly weapon shoot deceased in a vital spot and kill him, and of our holdings that a paraphrase is preferable, it is difficult to conclude that the error here complained of is a reversible one. This very point has been made many times in this court in criticism of the precise language here complained of, and we have said that it was not reversible. [State v. Gee, 85 Mo. 647; State v. Parker, 106 Mo. 217; Pattison’s Ins. in Crim. Cases, sec. 693.]

In the light of our former rulings and of the reason of the thing, we are of opinion that where a homicide is actually accomplished by the intentional use of a deadly weapon upon a vital spot, defendant ought not to be heard to bottom reversible error upon the employment by the trial court of a direct expression of the result of the use of such weapon rather than of’ its periphrastical equivalent. A little fairer indeed, would it be to follow the form of the self-defense instruction set out in the case of State v. Thomas, 78 Mo. l. c. 339, which we commend to the courts nisi.

III. Defendant strenuously urges that it was error for the trial- court to fail and neglect to rule upon objections made by defendant to the admission of testimony. We need not consider whether this be g0 or not; or whether, if the court nisi fail to rule, and admit testimony objected to, we should resolve the matter upon the test of the mere fact of a single failure to rule or upon the question whether the initial objection thereto was well taken. Procedural difficulties in the path of enforcing any other rule would seem to call for this latter test of harmfulness. For who could in fairness say how many failures to rule should work reversible error? For the silence of the court might relate to a merely conventional objection, or the objection made might not in fact have been heard by the court. But be this as may be, we find but one exception taken specifically to the court’s failure to rule, and the initial objection made to the question asked was not such as to make a ruling necessary on the part of the court. Certainly, however, it is the duty of the trial court to rule on every objection properly and courteously made upon the trial of a ease. We have twice at least, in equity cases, severely criticised this practice and have intimated that in a flagrant case it ought to constitute reversible error. [Morrison v. Turnbaugh, 192 Mo. 427; Seafield v. Bohne, 169 Mo. l. c. 546.] But for lack of a proper preservation of the point we do not need to pass on it here.

IV. Upon the trial the State was permitted, over defendant’s objection, to ask him on cross-examination whether he had not discharged his pistol at a point on the public road, and at a time some three hours before the shooting of deceased. Defendant, though he testified for himself, had not referred to the fact of shooting his pistol at this time or place. Since he was the defendant it was an improper question and the objection to it should have been sustained. [Sec. 5242, R. S. 1909; State v. Pfeifer, 267 Mo. l. c. 30.]

Likewise, in onr opinion, the learned trial court should have sustained the defendant’s objection to the evidence offered by the State of defendant’s altercation with the Fitzgerald girl. This occurred ... , ,. . some three hours or more before the happening of the difficulty which culminated in the shooting of deceased. Upon no theory which occurs to us, nor upon any called to our attention, can the admission of testimony of this separate and disconnected difficulty be justified.

V. Upon the trial, against defendant’s exceptions, the court instructed the jury thus:

“If you find from the evidence that defendant intentionally killed Samuel 0. Narramore by shooting him with a loaded pistol and that such pistol was a deadly weapon, then the law presumes that such killing was murder m the second degree, in the absence of proof to the contrary; and it devolves upon the defendant to adduce evidence to meet or repel that presumption, unless it is met or repelled by evidence introduced by the State.”

While the presumption of law mentioned in the above instruction exists (State v. Tabor, 95 Mo. l. c. 595), and in a proper case may, it is said, be invoked to eke out proof otherwise dark and lacking, this is not a proper case in which to fall back upon such a presumption. For it is a well-settled principle of law that presumptions are invoked only when evidence is lacking.

It may be that cases are to be found in which this instruction has been given, and wherein there was proof pro and con of facts from which the triers of fact could have found whether the homicide was murder in one or the other degree, or manslaughter of one degree or another, or whether it was done in self-defense. But it is clear to us that in all such cases a presumption is used in the face of proof of the fact presumed, to batter down the evidence in the case. This is not permissible and constitutes an unwarranted use of presumptions; because, as forecast, there is no room or necessity for a presumption when there is proof for and against the very fact which is presumed. When proof comes in at the door presumptions fly out at the window, as was said substantially in a happy figure by Lamm, J., in the case of Mockowik v. Railroad, 196 Mo. l. c. 571.

When however, an intentional killing with a deadly weapon is shown, and there is no evidence upon the side of the State of any other fact, it has been said that this presumption arises to aid the State. [State v. Minor, 193 Mo. l. c. 612; State v. Evans, 124 Mo. 397.] The Minor case was decided by this court, In Bane, in 1905, and all of the judges concurred, except Marshall, . J., not sitting. The homicide there was committed by means of shooting with a pistol. There were no eye-witnesses. Immediately after the shooting the accused fled; Being apprehended and put upon his deliverance, he admitted the shooting, hut averred that it was accidental and not intentional. Against the defendant’s averment of accident, the State lacking affirmative evidence, relied upon a presumption, and so relying the below instruction was given by the court nisi and it would have been held good by us upon the facts therein held in judgment if the word “intentionally” had been used therein:

“ ‘If the jury believe and find from the evidence in the case that the defendant shot with a pistol, and by such shooting killed William Green, the law presumes that such killing was murder in the second degree, in the absence of proof to the contrary, and in such case the burden of proof devolves upon the defendant to show to the reasonable satisfaction of the jury, from the evidence.in the case, that he is guilty of a less crime than murder in the second degree, or that the homicide was excusable.’ ”

The only criticism of the above instruction in the case, supra, is this, to-wit: “Under the evidence in this case the court was justified in submitting that question to the jury and if the instruction numbered 5 had contained the word ‘intentionally’ or its equivalent before the words ‘shot with a pistol,’ it would have been correct, but in the absence of the word ‘intentionally,’ or its equivalent, the instruction was erroneous, ’ ’

Passing by the illogical reasoning arising from the necessity of inferring in the Minor case an intentional killing from the fact of flight and then basing a presumption of law largely upon such inferred fact, we may concede for argument’s sake (without, again so holding), the correctness of the ruling therein. But the true facts therein were evidenced on the State’s side solely by the dumb evidence of the circumstances, contradicted by the testimony of the defendant Minor only upon the single point of whether the killing was intentional or accidental.

The facts in the instant case are wholly different. All of the circumstances of the homicide here are known, and shown upon the record by the testimony of eye-witnesses. No earthly reason or necessity exists for indulging any presumption as to whether the killing was or was not murder in the second degree. The facts shown in evidence disclosed the grade of the offense. That these facts were disputed as to some vital • phases by the witnesses for the State and for the defendant, does not detract from the argument. It was for the jury as the triers of fact to resolve these contradictions and when they resolved them they held inevitably that upon one side lay truth and upon the other falsehood; i. e. (not to put it so brutally), that the facts shown by the State are the veritable facts of the ease. The actual facts being shown, or being by the finding of the jury made veritable, there is no place in this case for a presumption of law about the grade of the homicide. [2 Chamberlayne, Mod. Law of Ev., 1085; Erhart v. Dietrich, 118 Mo. l. c. 427; Conway v. Supreme Council, 137 Cal. l. c. 389; Mockowik v. Railroad, supra.] There is, we repeat, no. doubt of the existence in law of the presumption de- ' fined in the instruction under review; but such an instruction has no place in a case wherein the facts are known from eye-witnesses. Surely, it has no place except mayhap in a case where there is an absence of evidence as to the facts of a homicide, save and except the fact of an intentional killing by the use of a deadly weapon upon a vital spot. To use it in a case like this is to assume the absolute truth of the State’s side of hotly disputed facts; then to draw from th'e State’s side of such facts a presumption of second degree murder; add that presumption to the facts on that side and .then demand of the defendant that he rebut the presumption so unwarrantably obtained.

We are not required to overrule the case of State v. Minor, supra, but content ourselves with distinguishing it upon the facts. We leave to subsequent determination, when we shall meet the point face to face, the question whether the procedural necessity of indulging the presumption on the State’s part in order to make any ease at all, should override what casually seems to be a plain case of bottoming a presumption upon an inference (said by many respectable courts and law-writers to be synonymous with presumption). But be all this as may be, for the reasons stated the effect here of giving the instruction was to put upon defendant an undue burden; in effect, to beg the identical questions submitted to the jury upon the proven facts, and so compel defendant to meet by his proof both the State’s proven .facts and the weight of an unwarranted presumption drawn from these facts. In the light of some of the holdings of ours, it is not strange that the learned trial court fell into error. We are constrained by the reason of the thing to say that upon the facts in this case the instruction ought not to have been given.

Other alleged errors will not likely occur upon a new trial. It follows that for the errors noted, this case should be reversed and remanded for a new trial. Let this be done.


author: ROY, C. PER CURIAM.

text:
    CITIZENS BANK OF HAYTI v. CHARLES PETER WELLS, JR., and NATIONAL SURETY COMPANY, Appellants.
    Division Two,
    December 6, 1916.
    1. BANKS: Regulation by State. The State has the right to prescribe the general policies which shall be observed in the conduct of banks, and to declare by statute that the directors of a bank “may appoint and remove any cashier or other officer or employee at pleasure.”
    2. -: Discharge of Cashier: Salary for Balance of Term. The statute (Sec. 1112, R. S. 1909) says that the board of directors of a bank “may appoint or remove any cashier or other officer or employee at pleasure;” and if the cashier was employed for a year, and discharged within a few months thereafter, he cannot recover his salary for the balance of the year; and if, at the time he left the bank, under protest, he took what he would otherwise have been entitled to had he remained a year, he and his surety on his bond for the faithful discharge of his duties as cashier, are liable for the amount so taken. [Distinguishing Davis v. Insurance Co., 191 Mo. App. 333.]
    Appeal from Pemiscot Circuit Court. — Hon. Frank Kelly, Judge. ■
    Affirmed.

      Shepard, Reeves é McKay for appellant.
    (1) The minute entries taken from the minute hook of the plaintiff bank and introduced in evidence in this case when considered in the light of the surrounding circumstances are sufficient to show that Wells was employed by the bank as cashier and secretary for the ensuing year. Davis v. Insurance Co., 172 S. W. 67. (2) Where a party has been employed for a given length of time and is wrongfully discharged before the term of his employment expires he is entitled to recover the amount of his loss by reason of such wrongful discharge. Boland v. Quarry Co., 127 Mo. 520; Tenzer v. Gilmore, 114 Mo. App. 210; Barney v. Spangler, 131 Mo. App. 58.

      A. Sloan Oliver and Arthur L. Oliver for respondent.
    (1) Whether Wells’ employment was a “hiring at will” or for a fixed and definite period, is a question of fact. The presumption of law is that it was the former, and the burden of proving a definite and fixed term of employment as a basis for a wrongful discharge is upon' Wells. Finger v. Brewing Co., 13 Mo. App. 310; Evans v. Railroad, 24 Mo. App. 114; Bennett v. Roofing Co., 23 Mo. App. 587; (2) Under the law of this State the bank’s board of directors had the right to remove him as cashier and secretary at their pleasure. Sec. 1112, R. S. 1909. Even though it might be conceded that the defendant Wells was wrongfully discharged by the board of directors, he had no right whatever to attempt to take the law into his own hands and adjust his supposed grievance. State v. Silva, 130 Mo. 463; State v. Lentz, 184 Mo. 237.
   ROY, C.

Defendants have appealed from a judgment against them on the bond of defendant Wells, given by him with his codefendant as his surety to secure the bank against any failure of Wells to properly discharge his duties as cashier of said bank. No point is made on the pleadings.

The evidence shows that on February 7,. 1911, the board of directors of the plaintiff bank held a meeting and the record of their proceedings at that meeting shows the following:

■ “The members of the board elect of the Citizens Bank of Hayti, Hayti, Missouri, met at its banking house in Hayti, Missouri, for the purpose of organization and the selection of officers for the ensuing year.”

Also the following

“The organization was then perfected by the election of the following permanent officers, viz.: Fred Morgan, President; F. M. Perkins, vice-president; Chas. Peter Wells, Jr., cashier and sec’t.; Leo Green-well, asst, cashier.”

And this:

“On motion of Mr. Perkins, duly seconded and carried, the salary of the cashier and asst, cashier were fixed at $75 and $25 respectively.”

Thereupon the defendants executed the bond sued upon herein in the sum of $10,000 to secure the faithful execution of the duties of Wells as such cashier. The record of the proceedings of said board of directors thereafter shows the following:

“ITayti, Mo., 4/10/11. Upon motion of Mr. Perkins, seconded by Mr. Sturm, and duly carried, Mr. Wells was asked to place his resignation in the hands of the directors, such resignation to take effect not later than May 1st.”

Also the following:

“Hayti, Mo., April 12, 1911. Minutes of the last meeting read with the following amendment by Mr. Ray, and were then approved. Following the words, ‘ such resignation to take effect not later than May 1st,’ to insert the following words: Mr. Wells refused to tender his resignation, saying that he had been retained for the year and was- willing to continue his duties, thereby carrying out his part of the contract.
“Motion by Mr. Sturm seconded by Mr. Perkins that the president inform Mr. Wells that his services as cashier would be no longer needed after the 3rd of May, 1911.”

On May 3, 1911, Wells owed the plaintiff on an overdraft $11.92, and on that day he drew a cashier’s check on plaintiff bank for $588.08, took that check over to the Bank of Hayti, and “cleared” the two banks, in which clearing that check was placed to his credit in the other bank, and the plaintiff’s account in that clearing was reduced by the amount of the check. Defendant quit the service as such cashier under protest on his part and only because of such discharge. He testified that he considered himself engaged as such cashier for a year, and that he took the money as he did to pay himself for the unexpired portion of that year. Defendant offered to prove that during the remainder of such year he tried, but failed to find any similar employment, and that he was during Tiat time able to earn only a small amount of money by working out of doors in bad weather.- The court excluded that evidence, and gave a peremptory instruction to the jury to find for the -plaintiff for $588.08, and the verdict was returned accordingly.

Appellants contend that the facts in evidence show an employment of Wells for one year, and they cite Davis v. Insurance Co., 181 Mo. App. 3-53, as authority for the proposition that under such employment for a definite term the employee cannot be rightfully discharged during such term. It is sufficient to say that there was no special statute applicable in that case as in this. It may be conceded that the general rule was there well stated. But section 1112, Revised Statutes 1909, provides that “the directors may appoint and remove any cashier or other officer or employee at pleasure.”

The evident purpose of that statute was to prevent the employment of such bank officers under a contract which' should put it beyond_ the power of the board to remove at any time. The State has the right to prescribe the general policies which shall be observed in the conduct of such institutions; and, as was well said in Wells v. National Surety Co., 184 S. W. 474, Wells entered into his employment as such cashier with knowledge of that statute.

Appellants say that the statute contravenes section 15, article 2, of our State Constitution which denounces ex post facto laws and laws impairing the obligation of contracts. As our statute was in existence when Wells was employed as such cashier, the statute is not subject to such objection.

The judgment is affirmed.

Williams, C., concurs.

PER CURIAM.

The foregoing opinion of Rot, C.,

is adopted as the opinion of the court.

Walker and Revelle, JJ., concur: Faris, P. J., not sitting.